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370 U.S. 230
82 S.Ct. 1288
8 L.Ed.2d 434
In the Matter of Criminal Contempt of Thomas C. McCONNELL, Petitioner.
No. 498.
Argued April 10, 1962.
Decided June 18, 1962.
Thomas C. McConnell, Chicago, Ill., for petitioner.
Philip R. Monahan, Washington, D.C., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
The petitioner Thomas C. McConnell, a lawyer, was summarily found guilty of contempt of court for statements made while representing the Parmelee Transportation Company in an antitrust suit for treble damages and an injunction. The complaint charged that a number of defendants had unlawfully conspired to destroy Parmelee's business by restraining and monopolizing trade in violation of the Sherman Act.1 Petitioner and his co-counsel, Lee A. Freeman, had done extensive pretrial preparation on the issue of conspiracy which was the heart of their case. At the very outset of the trial, however, the district judge on his own motion refused to permit counsel to try to prove their conspiracy charge, holding that they must first prove in a wholly separate trial that defendants' actions had resulted in an economic injury to the public—an erroneous holding since we have held that the right of recovery of a plaintiff in a treble damage antitrust case does not depend at all on proving an economic injury to the public.2
2
Cut off by the judge's erroneous ruling from trial of the basic issue of conspiracy and wishing to provide a record which would allow this ruling to be reviewed by the Court of Appeals, counsel for Parmelee asked counsel for defendants to stipulate that plaintiff would have introduced certain evidence of conspiracy had it been allowed to do so. Defense counsel refused to stipulate, however, insisting that Parmelee's counsel prepare their record by following the procedure set out in Rule 43(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which requires that before an offer of proof is made questions upon which the offer is based must first be asked in the presence of the jury.3 Unwilling to risk dismissal of their appeal for failure to follow Rule 43(c), Parmelee's counsel proceeded to produce and question witnesses in the presence of the jury in order to lay the proper foundation for their offers of proof of conspiracy. But during the process of this questioning the judge ordered it stopped and directed that any further offers of proof be made without first having asked questions of witnesses in the presence of the jury. This ruling placed Parmelee's counsel in quite a dilemma because defense counsel was still insisting that all offers of proof be made in strict compliance with Rule 43(c) and there was no way of knowing with certainty whether the Court of Appeals would treat the trial court's order to dispense with questions before the jury as an excuse for failure to comply with the Rule. Petitioner therefore not only sought to make clear to the court that he thought defense counsel's objection was 'right'4 but also repeatedly insisted that he be allowed to make his offers of proof in compliance with the Rule.5 Following the trial the judge charged petitioner and his co-counsel Freeman in a number of specifications with being guilty of contemptuous conduct during the course of the trial. After separate hearings both lawyers were summarily found guilty by the trial judge on all specifications. Both appealed to the Court of Appeals, which reversed all of Freeman's convictions,6 reversed two of petitioner McConnell's convictions, but, with Judge Duffy dissenting, sustained the conviction of petitioner on Specification 6—the specification based on petitioner's insistence that he be allowed the make offers of proof in compliance with Rule 43(c).7 Even as to this conviction, however, the Court of Appeals held that the jail sentence imposed by the trial judge should be reduced to a fine of $100. As in Offutt v. United States,8 the 'importance of assuring alert self-restraint in the exercise by district judges of the summary power for punishing contempt' prompted us to bring the case here.9
3
The statute under which petitioner was summarily convicted of contempt is 18 U.S.C. § 401, 18 U.S.C.A. § 401, which provides that:
4
'A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—
5
'(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice * * *.'
6
This section is based on an Act passed in 183110 in order to correct serious abuses of the summary contempt power that had grown up and was intended as a 'drastic delimitation * * * of the broad undefined power of the inferior federal courts under the Act of 1789,'11 revealing 'a Congressional intent to safeguard constitutional procedures by limiting courts, as Congress is limited in contempt cases, to 'the least possible power adequate to the end proposed."12 'The exercise by federal courts of any broader contempt power than this,' we have said, 'would permit too great inroads on the procedural safeguards of the Bill of Rights, since contempts are summary in their nature, and leave determination of guilt to a judge rather than a jury.'13 And we held long ago, in Ex parte Hudgings,14 that while this statute undoubtedly shows a purpose to give courts summary powers to protect the administration of justice against immediate interruption of court business, it also means that before the drastic procedures of the summary contempt power may be invoked to replace the protections of ordinary constitutional procedures there must be an actual obstruction of justice:
7
'An obstruction to the performance of judicial duty resulting from an act done in the presence of the court is, then, the characteristic upon which the power to punish for contempt must rest. This being true, it follows that the presence of that element must clearly be shown in every case where the power to punish for contempt is exerted * * *.'
8
Thus the question in this case comes down to whether it can 'clearly be shown' on this record that the petitioner's statements while attempting to make his offers of proof actually obstructed the district judge in 'the performance of judicial duty.'
9
The Court of Appeals answered this question by sustaining Specification 6 only on the basis of petitioner's last sentence in the colloquy set out in the specification. That specification reads:
10
'On April 27, 1960, in the presence and hearing of the jury, after the Court had instructed the attorneys for plaintiff to refrain from repeatedly asking questions on subjects which the Court had ruled (were) not admissible, in the presence of the jury as distinguished from an offer of proof outside the presence of the jury, the following occurred:
11
"By Mr. McConnell: Now you are trying to tell us we can't ask these questions. We have a right to ask these questions, and until we are stopped from asking these questions we are going to ask them, because it is in our prerogative in doing it.
12
"By the Court: I am now stopping you from asking the questions about conversations with Mr. Cross, because I have ruled specifically, definitely and completely that it is not an issue in this case.
13
"By Mr. McConnell: We have a right to ask them.
14
"By the Court: You can offer proof on it.
15
"By Mr. McConnell: We have a right to ask questions which we offer on this issue, and Your Honor can sustain their objection to them. We don't have a right to read the answers, but we have a right to ask the questions, and we propose to do so unless some bailiff stops us." (Emphasis added.)
16
The record shows that after this colloquy petitioner's co-counsel asked for a short recess, that following this recess petitioner did not continue to ask questions which the judge had forbidden and that in fact he did not ask any more such questions again throughout the remainder of the trial. We agree with Judge Duffy who dissented below that there was nothing in petitioner's conduct sufficiently disruptive of the trial court's business to be an obstruction of justice. It is true that petitioner stated that counsel had a right to ask questions that the judge did not want asked and that 'we propose to do so unless some bailiff stops us.' The fact remains, however, that the bailiff never had to interrupt the trial by arresting petitioner, for the simple reason that after this statement petitioner never did ask any more questions along the line which the judge had forbidden. And we cannot agree that a mere statement by a lawyer of his intention to press his legal contention until the court has a bailiff stop him can amount to an obstruction of justice that can be punished under the limited powers of summary contempt which Congress has granted to the federal courts. The arguments of a lawyer in presenting his client's case strenuously and persistently cannot amount to a contempt of court so long as the lawyer does not in some way create an obstruction which blocks the judge in the performance of his judicial duty. The petitioner created no such obstacle here.
17
While we appreciate the necessity for a judge to have the power to protect himself from actual obstruction in the courtroom, or even from conduct so near to the court as actually to obstruct justice, it is also essential to a fair administration of justice that lawyers be able to make honest good-faith efforts to present their clients' cases. An independent judiciary and a vigorous, independent bar are both indispensable parts of our system of justice. To preserve the kind of trials that our system envisages, Congress has limited the summary contempt power vested in courts to the least possible power adequate to prevent actual obstruction of justice, and we think that that power did not extend to this case.
18
Reversed.
19
Mr. Justice FRANKFURTER and 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
With respect to the contempt count that was sustained by the Court of Appeals, this case involves nothing more than an ordinary exercise of the District Court's contempt power in aid of maintaining discipline and decorum in the courtroom. The most, I think, that could appropriately be said of the conviction on this court is that petitioner's unlawyer-like conduct did not merit a jail sentence. The Court of Appeals has removed all basis for criticism on that score by reducing the sentence to a $100 fine. In other respects its opinion displays an alert regard for the undoubted fact that the contempt power should always be exercised circumspectly and dispassionately, particularly when called into play by the conduct of an attorney in the course of sharply contested litigation.
22
I can hardly believe that the Court intends its opinion to mean that only a physical obstruction of pending judicial proceedings is punishable under 18 U.S.C. § 401, 18 U.S.C.A. § 401. For a court's power to punish summarily for contempt has always been available as a sanction against the use of abusive and insulting language in a courtroom. See, e.g., Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11; Fisher v. Pace, 336 U.S. 155, 159—160, 69 S.Ct. 425, 427, 93 L.Ed. 569; Ex parte Terry, 128 U.S. 289, 307—309, 9 S.Ct. 77, 80—81, 32 L.Ed. 405. And it can scarcely be supposed that Congress' enactment of 18 U.S.C. § 401, 18 U.S.C.A. § 401 was intended to abrogate this power, even as the forerunner to that section was construed in In re Michael, 326 U.S. 224, 228, 66 S.Ct. 78, 80, 90 L.Ed. 30. Cf. Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 339, 63 L.Ed. 656.
23
This routine intracircuit affair presents nothing calling for the exercise of this Court's supervisory power, and the case would have been much better left with the Court of Appeals by a denial of certiorari.
24
I would affirm.
1
This action was brought under the Clayton Act, §§ 4 and 16, 38 Stat. 731, 737, 15 U.S.C. §§ 15, 26, 15 U.S.C.A. §§ 15, 26 and charged violations of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2, 15 U.S.C.A. §§ 1, 2.
2
Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S. 656, 660, 81 S.Ct. 365, 367, 5 L.Ed.2d 358; Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741. See also Radovich v. National Football League, 352 U.S. 445, 77 S.Ct. 390, 1 L.Ed.2d 456.
3
Rule 43(c) provides in part:
'In an action tried by a jury, if an objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what he expects to prove by the answer of the witness. The court may require the offer to be made out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. * * *'
4
Since our disposition of this case does not turn on whether petitioner was correct in thinking that Rule 43(c) absolutely requires that all offers of proof in jury trials be based on questions before the jury, we express no opinion on that question.
5
The district judge did not change his ruling and ultimately gave judgment for defendants on the grounds that plaintiff had not proved public economic injury and that the facts alleged in the complaint and the proof offered at the trial did not constitute a violation of the antitrust laws. D.C., 186 F.Supp. 533. The Court of Appeals for the Seventh Circuit affirmed the decision on this latter ground. 292 F.2d 794.
6
7 Cir., 292 F.2d 806.
7
7 Cir., 294 F.2d 310.
8
348 U.S. 11, 13, 75 S.Ct. 11, 13, 99 L.Ed. 11.
9
368 U.S. 936, 82 S.Ct. 380, 7 L.Ed.2d 337.
10
4 Stat. 487. The present wording of § 401 comes from the 1948 revision and codification of Title 18. 62 Stat. 701.
11
Nye v. United States, 313 U.S. 33, 45, 61 S.Ct. 810, 814, 85 L.Ed. 1172.
12
In re Michael, 326 U.S. 224, 227, 66 S.Ct. 78, 79, 90 L.Ed. 30.
13
Ibid.
14
249 U.S. 378, 383, 39 S.Ct. 337, 339, 63 L.Ed. 656.
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370 U.S. 288
82 S.Ct. 1560
8 L.Ed.2d 501
Frank GRUMMAN, petitioner,v.UNITED STATES.
No. 436.
Supreme Court of the United States
October Term, 1961.
June 18, 1962
David Rein, Washington, D. C., for petitioner.
Bruce J. Terris, Washington, D. C., for respondent.
On Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit.
PER CURIAM.
1
The judgment is reversed. Russell v. United States 369 U.S. 749, 82 S.Ct. 1038.
2
Mr. Justice CLARK and Mr. Justice HARLAN dissent for the reasons stated in their dissenting opinions in Russell v. United States, 369 U.S. 749, 779, 781, 82 S.Ct. 1038.
3
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
4
Mr. Justice WHITE took no part in the decision of this case.
| 23
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370 U.S. 195
82 S.Ct. 1328
8 L.Ed.2d 440
SINCLAIR REFINING COMPANY, Petitioner,v.Semuel M. ATKINSON et al.
No. 434.
Argued April 18, 1962.
Decided June 18, 1962.
George B. Christensen, Chicago, Ill., for petitioner.
Gilbert A. Cornfield, Chicago, Ill., for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
The question this case presents is whether § 301 of the Taft-Hartley Act, in giving federal courts jurisdiction of suits between employers and unions for breach of collective bargaining agreements,1 impliedly repealed § 4 of the pre-existing Norris-LaGuardia Act, which, with certain exceptions not here material, barred federal courts from issuing injunctions 'in any case involving or growing out of any labor dispute.'2
2
The complaint here was filed by the petitioner Sinclair Refining Company against the Oil, Chemical and Atomic Workers International Union and Local 7—210 of that union and alleged: that the International Union, acting by and with the authority of the Local Union and its members, signed a written collective bargaining contract with Sinclair which provided for compulsory, final and binding arbitration of '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'; that this contract also included express provisions by which the unions agreed that 'there shall be no slowdowns for any reason whatsoever' and 'no strikes or work stoppages * * * (f)or any cause which is or may be the subject of a grievance'; and that notwithstanding these promises in the collective bargaining contract the members of Local 7—210 had, over a period of some 19 months, engaged in work stoppages and strikes on nine separate occasions, each of which, the complaint charged, grew out of a grievance which could have been submitted to arbitration under the contract and therefore fell squarely within the unions' promises not to strike. This pattern of repeated, deliberate violations of the contract, Sinclair alleged, indicated a complete disregard on the part of the unions for their obligations under the contract and a probability that they would continue to 'subvert the provisions of the contract' forbidding strikes over grievances in the future unless they were enjoined from doing so. In this situation, Sinclair claimed, there was no adequate remedy at law which would protect its contractual rights and the court should therefore enter orders enjoining the unions and their agents 'preliminarily at first, and thereafter permanently, from aiding, abetting, fomenting, advising, participating in, ratifying, or condoning any strike, stoppage of work, slowdown or any other disruption of, or interference with normal employment or normal operation or production by any employee within the bargaining unit at plaintiff's East Chicago, Indiana refinery covered by the contract between the parties dated August 8, 1957, in support of, or because of, any matter or thing which is, or could be, the subject of a grievance under the grievance procedure of the said contract, or any extension thereof, or any other contract between the parties which shall contain like or similar provisions.'3
3
The unions moved to dismiss this complaint on the ground that it sought injunctive relief which United States courts, by virtue of the Norris-LaGuardia Act, have no jurisdiction to give. The District Court first denied the motion, but subsequently, upon reconsideration after full oral argument, vacated its original order and granted the unions' motion to dismiss.4 In reaching this conclusion, the District Court reasoned that the controversy between Sinclair and the unions was unquestionably a 'labor dispute' within the meaning of the Norris-LaGuardia Act and that the complaint therefore came within the proscription of § 4 of that Act which 'withdraws jurisdiction from the federal courts to issue injunctions to prohibit the refusal 'to perform work or remain in any relation of employment' in cases involving any labor dispute.'5 The Court of Appeals for the Seventh Circuit affirmed the order of dismissal for the same reasons.6 Because this decision presented a conflict with the decision on this same important question by the Court of Appeals for the Tenth Circuit,7 we granted certiorari.8
4
We agree with the courts below that this case does involve a 'labor dispute' within the meaning of the Norris-LaGuardia Act. Section 13 of that Act expressly defines a labor dispute as including 'any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.'9 Sinclair's own complaint shows quite plainly that each of the alleged nine work stoppages and strikes arose out of a controversy which was unquestionably well within this definition.10
5
Nor does the circumstance that the alleged work stoppages and strikes may have constituted a breach of a collective bargaining agreement alter the plain fact that a 'labor dispute' within the meaning of the Norris-LaGuardia Act is involved. Arguments to the contrary proceed from the premise that § 2 of that Act, which expresses the public policy upon which the specific anti-injunction provisions of the Act were based, contains language indicating that one primary concern of Congress was to insure workers the right 'to exercise actual liberty of contract' and to protect 'concerted activities for the purpose of collective bargaining.'11 From that premise, Sinclair argues that an interpretation of the term 'labor dispute' so as to include a dispute arising out of a union's refusal to abide by the terms of a collective agreement to which it freely acceded is to apply the Norris-LaGuardia Act in a way that defeats one of the purposes for which it was enacted. But this argument, though forcefully urged both here and in much current commentary on this question,12 rests more upon considerations of what many commentators think would be the more desirable industrial and labor policy in view of their understanding as to the prevailing circumstances of contemporary labormanagement relations than upon what is a correct judicial interpretation of the language of the Act as it was written by Congress.
6
In the first place, even the general policy declarations of § 2 of the Norris-LaGuardia Act, which are the foundation of this whole argument, do not support the conclusion urged. That section does not purport to limit the Act to the protection of collective bargaining but, instead, expressly recognizes the need of the anti-injunction provisions to insure the right of workers to engage in 'concerted activities for the purpose of collective bargaining or other mutual aid or protection.' Moreover, the language of the specific provisions of the Act is so broad and inclusive that it leaves not the slightest opening for reading in any exceptions beyond those clearly written into it by Congress itself.13
7
We cannot ignore the plain import of a congressional enactment, particularly one which, as we have repeatedly said, was deliberately drafted in the broadest of terms in order to avoid the danger that it would be narrowed by judicial construction.14
8
Since we hold that the present case does grow out of a 'labor dispute,' the injunction sought here runs squarely counter to the proscription of injunctions against strikes contained in § 4(a) of the Norris-LaGuardia Act, to the proscription of injunctions against peaceful picketing contained in § 4(e) and to the proscription of injunctions prohibiting the advising of such activities contained in § 4(i).15 For these reasons, the Norris-LaGuardia Act deprives the courts of the United States of jurisdiction to enter that injunction unless, as is contended here, the scope of that Act has been so narrowed by the subsequent enactment of § 301 of the Taft-Hartley Act that it no longer prohibits even the injunctions specifically described in § 4 where such injunctions are sought as a remedy for breach of a collective bargaining agreement. Upon consideration, we cannot agree with that view and agree instead with the view expressed by the courts below and supported by the Courts of Appeals for the First and Second Circuits that § 301 was not intended to have any such partially repealing effect upon such a long-standing, carefully thought out and highly significant part of this country's labor legislation as the Norris-LaGuardia Act.16
9
The language of § 301 itself seems to us almost if not entirely conclusive of this question. It is especially significant that the section contains no language that could by any stretch of the imagination be interpreted to constitute an explicit repeal of the anti-injunction provisions of the Norris-LaGuardia Act in view of the fact that the section does expressly repeal another provision of the Norris-LaGuardia Act dealing with union responsibility for the acts of agents.17 If Congress had intended that § 301 suits should also not be subject to the anti-injunction provisions of the Norris-LaGuardia Act, it certainly seems likely that it would have made its intent known in this same express manner. That is indeed precisely what Congress did do in § 101, amending § 10(h) of the National Labor Relations Act, and § 208(b) of the Taft-Hartley Act, by permitting injunctions to be obtained, not by private litigants, but only at the instance of the National Labor Relations Board and the Attorney General,18 and in § 302(e), by permitting private litigants to obtain injunctions in order to protect the integrity of employees' collective bargaining representatives in carrying out their responsibilities.19 Thus the failure of Congress to include a provision in § 301 expressing repealing the anti-injunction provisions of the Norris-LaGuardia Act must be evaluated in the context of a satutory pattern that indicates not only that Congress was completely familiar with those provisions but also that it regarded an express declaration of inapplicability as the normal and proper manner of repealing them in situations where such repeal seemed desirable.
10
When the inquiry is carried beyond the language of § 301 into its legislative history, whatever small doubts as to the congressional purpose could have survived consideration of the bare language of the section should be wholly dissipated. For the legislative history of § 301 shows that Congress actually considered the advisability of repealing the Norris-LaGuardia Act insofar as suits based upon breach of collective bargaining agreements are concerned and deliberately chose not to do so.20 The section as eventually enacted was the product of a conference between Committees of the House and Senate, selected to resolve the difference between conflicting provisions of the respective bills each had passed. Prior to this conference, the House bill had provided for federal jurisdiction of suits for breach of collective bargaining contracts and had expressly declared that the Norris-LaGuardia Act's anti-injunction provisions would not apply to such suits.21 The bill passed by the Senate, like the House bill, granted federal courts jurisdiction over suits for breach of such agreements but it did not, like the House bill, make the Norris-LaGuardia Act's prohibition against injunctions inapplicable to such suits.22 Instead it made breach of a collective agreement an unfair labor practice.23 Under the Senate version, therefore, a breach of a collective bargaining agreement, like any unfair labor practice, could have been enjoined by a suit brought by the National Labor Relations Board,24 but no provision of the Senate version would have permitted the issuance of an injunction in a labor dispute at the suit of a private party. At the conference the provision of the House bill expressly repealing the anti-injunction provisions of the Norris-LaGuardia Act, as well as the provision of the bill passed by the Senate declaring the breach of a collective agreement to be an unfair labor practice, was dropped and never became law. Instead, the conferees, as indicated by the provision which came out of the conference and eventually became § 301, agreed that suits for breach of such agreements should remain wholly private and 'be left to the usual processes of the law'25 and that, in view of the fact that these suits would be at the instance of private parties rather than at the instance of the Labor Board, no change in the existing anti-injunction provisions of the Norris-LaGuardia Act should be made. The House Conference Report expressly recognized that the House provision for repeal in contract actions of the anti-injunction prohibitions of the Norris-LaGuardia Act had been eliminated in Conference:
11
'Section 302(e) of the House bill made the Norris-LaGuardia Act inapplicable in actions and proceedings involving violations of agreements between an employer and a labor organization. Only part of this provision is included in the conference agreement. Section 6 of the Norris-LaGuardia Act provides that no employer or labor organization participating or interested in a labor dispute shall be held responsible for the unlawful acts of their agents except upon clear proof of actual authorization of such acts, or ratification of such acts after actual knowledge thereof. This provision in the Norris-LaGuardia Act was made inapplicable under the House bill, Section 301(e) of the conference agreement provides that for the purposes of section 301 in determining whetehr any person is acting as an agent of another so as to make such other person responsible for his actions, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.'26
12
And Senator Taft, Chairman of the Conference Committee and one of the authors of this legislation that bore his name, was no less explicit in explaining the results of the Conference to the Senate: 'The conferees * * * rejected the repeal of the Norris-LaGuardia Act.'27
13
We cannot accept the startling argument made here that even though Congress did not itself want to repeal the Norris-LaGuardia Act, it was willing to confer a power upon the courts to 'accomodate' that Act out of existence whenever they might find it expedient to do so in furtherance of some policy they had fashioned under § 301. The unequivocal statements in the House Conference Report and by Senator Taft on the floor of the Senate could only have been accepted by the Congressmen and Senators who read or heard them as assurances that they could vote in favor of § 301 without altering, reducing or impairing in any manner the anti-injunction provisions of the Norris-LaGuardia Act. This is particularly true of the statement of Senator Taft, a man generally regarded in the Senate as a very able lawyer and one upon whom the Senate could rely for accurate, forthright explanations of legislation with which he was connected. Senator Taft was of course entirely familiar with the prohibitions of the Norris-LaGuardia Act and the impact those prohibitions would have upon the enforcement under § 301 of all related contractual provisions, including contractual provisions dealing with arbitration. If, as this argument suggests, the intention of Congress in enacting § 301 was to clear the way for judicial obliteration of that Act under the soft euphemism of 'accommodation,' Senator Taft's flat statement that the Conference had rejected the repeal of the Norris-LaGuardia Act could only be regarded as disingenuous. We cannot impute any such intention to him.
14
Moreover, we think that the idea that § 301 sanctions piecemeal judicial repeal of the Norris-LaGuardia Act requires acceptance of a wholly unrealistic view of the manner in which Congress handles its business. The question of whether existing statutes should be continued in force or repealed is, under our system of government, one which is wholly within the domain of Congress. When the repeal of a highly significant law is urged upon that body and that repeal is rejected after careful consideration and discussion, the normal expectation is that courts will be faithful to their trust and abide by that decision. This is especially so where the fact of the controversy over repeal and the resolution of that controversy in Congress plainly appears in the formal legislative history of its proceedings.28 Indeed, not a single instance has been called to our attention in which a carefully considered and rejected proposal for repeal has been revived and adopted by this Court under the guise of 'accommodation' or any other pseudonym.
15
Nor have we found anything else in the previous decisions of this Court that would indicate that we should disregard all this overwhelming evidence of a congressional intent to retain completely intact the anti-injunction prohibitions of the Norris-LaGuardia Act in suits brought under § 301. Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co.,29 upon which Sinclair places its primary reliance, is distinguishable on several grounds. There we were dealing with a strike called by the union in defiance of an affirmative duty, imposed upon the union by the Railway Labor Act itself, compelling unions to settle disputes as to the interpretation of an existing collective bargaining agreement, not by collective union pressures on the railroad but by submitting them to the Railroad Adjustment Board as the exclusive means of final determination of such 'minor' disputes.30 Here, on the other hand, we are dealing with a suit under a quite different law which does not itself compel a particular, exclusive method for settling disputes nor impose any requirement, either upon unions or employers, or upon the courts, that is in any way inconsistent with a continuation of the Norris-LaGuardia Act's proscription of federal labor injunctions against strikes and peaceful picketing. In addition, in Chicago River we were dealing with a statute that had a far different legislative history than the one now before us. Thus there was no indication in the legislative history of the Railway Labor Act, as there is in the history of § 301, that Congress had, after full debate and careful consideration by both Houses and in Joint Conference, specifically rejected proposals to make the prohibitions of the Norris-LaGuardia Act inapplicable. Indeed, the Court was able to conclude in Chicago River 'that there was general understanding between both the supporters and the opponents of the 1934 amendment that the provisions dealing with the Adjustment Board were to be considered as compulsory arbitration in this limited field.'31 And certainly no one could contend that § 301 was intended to set up any such system of 'compulsory arbitration' as the exclusive method for settling grievances under the Taft-Hartley Act.
16
Textile Workers Union v. Lincoln Mills,32 upon which some lesser reliance is placed, is equally distinguishable. There the Court held merely that it did not violate the anti-injunction provisions of the Norris-LaGuardia Act to compel the parties to a collective bargaining agreement to submit a dispute which had arisen under that agreement to arbitration where the agreement itself required arbitration of the dispute. In upholding the jurisdiction of the federal courts to issue such an order against a challenge based upon the Norris-LaGuardia Act, the Court pointed out that the equitable relief granted in that case—a mandatory injunction to carry out an agreement to arbitrate—did not enjoin any one of the kinds of conduct which the specific prohibitions of the Norris-LaGuardia Act withdrew from the injunctive powers of United States courts.33 An injunction against work stoppages, peaceful picketing or the nonfraudulent encouraging of those activities would, however, prohibit the precise kinds of conduct which subsections (a), (e) and (i) of § 4 of the Norris-LaGuardia Act unequivocally say cannot be prohibited.34
17
Nor can we agree with the argument made in this Court that the decision in Lincoln Mills, as implemented by the subsequent decisions in United Steelworkers v. American Manufacturing Co.,35 United Steelworkers v. Warrior & Gulf Navigation Co.,36 and United Steelworkers v. Enterprise Wheel & Car Corp.,37 requires us to reconsider and overrule the action of Congress in refusing to repeal or modify the controlling commands of the Norris-LaGuardia Act. To the extent that those cases relied upon the proposition that the arbitration process is 'a kingpin of federal labor policy,' we think that proposition was founded not upon the policy predilections of this Court but upon what Congress said and did when it enacted § 301. Certainly we cannot accept any suggestion which would undermine those cases by implying that the Court went beyond its proper power and itself 'forged * * * a kingpin of federal labor policy' inconsistent with that section and its purpose. Consequently, we do not see how cases implementing the purpose of § 301 can be said to have freed this Court from its duty to give effect to the plainly expressed congressional purpose with regard to the continued application of the anti-injunction provisions of the Norris-LaGuardia Act. The argument to the contrary seems to rest upon the notion that injunctions against peaceful strikes are necessary to make the arbitration process effective. But whatever might be said about the merits of this argument, Congress has itself rejected it. In doing so, it set the limit to which it was willing to go in permitting courts to effectuate the congressional policy favoring arbitration and it is not this Court's business to review the wisdom of that decision.
18
The plain fact is that § 301, as passed by Congress, presents no conflict at all with the anti-injunction provisions of the Norris-LaGuardia Act. Obedience to the congressional commands of the Norris-LaGuardia Act does not directly affect the 'congressional policy in favor of the enforcement of agreements to arbitrate grievance disputes'38 at all for it does not impair the right of an employer to obtain an order compelling arbitration of any dispute that may have been made arbitrable by the provisions of an effective collective bargaining agreement. At the most, what is involved is the question of whether the employer is to be allowed to enjoy the benefits of an injunction along with the right which Congress gave him in § 301 to sue for breach of a collective agreement. And as we have already pointed out, Congress was not willing to insure that enjoyment to an employer at the cost of putting the federal courts back into the business of enjoining strikes and other related peaceful union activities.
19
It is doubtless true, as argued, that the right to sue which § 301 gives employers would be worth more to them if they could also get a federal court injunction to bar a breach of their collective bargaining agreements. Strong arguments are made to us that it is highly desirable that the Norris-LaGuardia Act be changed in the public interest. If that is so, Congress itself might see fit to change that law and repeal the anti-injunction provisions of the Act insofar as suits for violation of collective agreements are concerned, as the House bill under consideration originally provided. It might, on the other hand, decide that if injunctions are necessary, the whole idea of enforcement of these agreements by private suits should be discarded in favor of enforcement through the administrative machinery of the Labor Board, as Senator Taft provided in his Senate bill. Or it might decide that neither of these methods is entirely satisfactory and turn instead to a completely new approach. The question of what change, if any, should be made in the existing law is one of legislative policy properly within the exclusive domain of Congress—it is a question for law makers, not law interpreters. Our task is the more limited one of interpreting the law as it now stands. In dealing with problems of interpretation and application of federal statutes, we have no power to change deliberate choices of legislative policy that Congress has made within its constitutional powers. Where congressional intent is discernible and here it seems crystal clear—we must give effect to that intent.39
20
The District Court was correct in dismissing Count 3 of petitioner's complaint for lack of jurisdiction under the Norris-LaGuardia Act. The judgment of the Court of Appeals affirming that order is therefore affirmed.
21
Affirmed.
22
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
23
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice HARLAN join, dissenting.
24
I believe that the Court has reached the wrong result because it has answered only the first of the questions which must be answered to decide this case. Of course § 301 of the Taft-Hartley Act did not, for purposes of actions brought under it, 'repeal' § 4 of the Norris-LaGuardia Act. But the two provisions do coexist, and it is clear beyond dispute that they apply to the case before us in apparently conflicting senses. Our duty, therefore, is to seek out that accommodation of the two which will give the fullest possible effect to the central purposes of both. Since such accommodation is possible, the Court's failure to follow that path leads it to a result—not justified by either the language or history of § 301 which is wholly at odds with our earlier handling of directly analogous situations and which cannot be woven intelligibly into the broader fabric of related decisions.
I.
25
Section 301 of the Taft-Hartley Act, enacted in 1947, authorizes Federal District Courts to entertain '(s)uits for violation of contracts between an employer and a labor organization * * *.' It does not in terms address itself to the question of remedies. As we have construed § 301, it casts upon the District Courts a special responsibility to carry out contractual schemes for arbitration, by holding parties to that favored process for settlement when it has been contracted for, and by then regarding its result as conclusive.1 At the same time, § 4 of the Norris-LaGuardia Act, enacted in 1932, proscribes the issuance by federal courts of injunctions against various concerted activities 'in any case involving or growing out of any labor dispute.' But the enjoining of a strike over an arbitrable grievance may be indispensable to the effective enforcement of an arbitration scheme in a collective agreement; thus the power to grant that injunctive remedy may be essential to the uncrippled performance of the Court's function under § 301.2 Therefore, to hold that § 301 did not repeal § 4 is only a beginning. Having so held, the Court should but does not—go on to consider how it is to deal with the surface conflict between the two statutory commands.
26
The Court has long acted upon the premise that the Norris-LaGuardia Act does not stand in isolation. It is one of several statutes which, taken together, shape the national labor policy. Accordingly, the Court has recognized that Norris-LaGuardia does not invariably bar injunctive relief when necessary to achieve an important objective of some other statute in the pattern of labor laws. See Brotherhood of Railroad Trainmen v. Chicago River R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622; Graham v. Brotherhood of Locomotive Firemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22; Virginian R. Co. v. System Federation, 300 U.S. 515, 562—563, 57 S.Ct. 592, 81 L.Ed. 789. In Chicago River we insisted that there 'must be an accommodation of (the Norris-LaGuardia Act) and the Railway Labor Act so that the obvious purpose in the enactment of each is preserved.'3
27
These decisions refusing inflexible application of Norris-LaGuardia point to the necessity of a careful inquiry whether the surface conflict between § 301 and § 4 is irreconcilable in the setting before us: a strike over a grievance which both parties have agreed to settle by binding arbitration. I think that there is nothing in either the language of § 301 or its history to prevent § 4's here being accommodated with it, just as § 4 was accommodated with the Railway Labor Act.
II.
28
It cannot be denied that the availability of the injunctive remedy in this setting is far more necessary to the accomplishment of the purposes of § 301 than it would be detrimental to those of Norris-LaGuardia. Chicago River makes this plain. We there held that the federal courts, notwithstanding Norris-LaGuardia, may enjoin strikes over disputes as to the interpretation of an existing collective agreement, since such strikes flout the duty imposed on the union by the Railway Labor Act to settle such 'minor disputes' by submission to the National Railroad Adjustment Board rather than by concerted economic pressures. We so held, even though the Railway Labor Act contains no express prohibition of strikes over 'minor disputes,' because we found it essential to the meaningful enforcement of that Act—and because the existence of mandatory arbitration eliminated one of the problems to which Norris-LaGuardia was chiefly addressed, namely, that 'the injunction strips labor of its primary weapon without substituting any reasonable alternative.'4
29
That reasoning is applicable with equal force to an injunction under § 301 to enforce a union's contractual duty, also binding on the employer, to submit certain disputes to terminal arbitration and to refrain from striking over them. The federal law embodied in § 301 stresses the effective enforcement of such arbitration agreements. When one of them is about to be sabotaged by a strike, § 301 has as strong a claim upon an accommodating interpretation of § 4 as does the compulsory arbitration law of the Railway Labor Act. It is equally true in both cases that '(an injunction) alone can effectively guard the plaintiff's right,' International Ass'n of Machinists v. Street, 367 U.S. 740, 773, 81 S.Ct. 1784, 1802, 6 L.Ed.2d 1141. It is equally true in both cases that the employer's specifically enforceable obligation to arbitrate provides a 'reasonable alternative' to the strike weapon. It is equally true in both cases that a major contributing cause for the enactment of Norris-LaGuardia—the at-largeness of federal judges in enjoining activities thought to seek 'unlawful ends' or to constitute 'unlawful means'5—is not involved. Indeed, there is in this case a factor weighing in favor of the issuance of an injunction which was not present in Chicago River:6 the express contractual commitment of the union to refrain from striking, viewed in light of the overriding purpose of § 301 to assist the enforcement of collective agreements.
30
In any event, I should have thought that the question was settled by Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972. In that case, the Court held that the procedural requirements of Norris-LaGuardia's § 7, although in terms fully applicable, would not apply so as to frustrate a federal court's effective enforcement under § 301 of an employer's obligation to arbitrate. It is strange, I think, that § 7 of the Norris-LaGuardia Act need not be read, in the face of § 301, to impose inapt procedural restrictions upon the specific enforcement of an employer's contractual duty to arbitrate; but that § 4 must be read, despite § 301, to preclude absolutely the issuance of an injunction against a strike which ignores a union's identical duty.
III.
31
The legislative history of § 301 affords the Court no refuge from the compelling effect of our prior decisions. That history shows that Congress considered and rejected 'the advisability of repealing the Norris-LaGuardia Act insofar as suits based upon breach of collective bargaining agreements are concerned * * *.'7 But congressional rejection of outright repeal certainly does not imply hostility to an attempt by the courts to accommodate all statutes pertinent to the decision of cases before them. Again, the Court's conclusion stems from putting the wrong question. When it is appreciated that there is no question here of 'repeal,' but rather one of how the Court is to apply the whole statutory complex to the case before it, it becomes clear that the legislative history does not support the Court's conclusion. First, however, it seems appropriate to discuss, as the Court has done, the language of § 301 considered in light of other provisions of the statute.
32
There is nothing in the words of § 301 which so much as intimates any limitation to damage remedies when the asserted breach of contract consists of concerted activity. The section simply authorizes the District Courts to entertain and decide suits for violation of collective contracts. Taking the language alone, the irresistible implication would be that the District Courts were to employ their regular arsenal of remedies appropriately to the situation. That would mean, of course, that injunctive relief could be afforded when damages would not be an adequate remedy. This much, surely, is settled by Lincoln Mills. But the Court reasons that the failure of § 301 explicitly to repeal § 4 of Norris-LaGuardia completely negates the availability of injunctive relief in any case where that provision—in the absence of § 301—would apply. That reasoning stems from attaching undue significance to the fact that express repeal of Norris-LaGuardia provisions may be found in certain other sections of the Taft-Hartley Act—from which the Court concludes 'not only that Congress was completely familiar with those provisions but also that it regarded an express declaration of inapplicability as the normal and proper manner of repealing them in situations where such repeal seemed desirable.'8 Even on this analysis the most that can be deduced from such a comparative reading is that while repeal of Norris-LaGuardia seemed desirable to Congress in certain other contexts, repeal did not seem desirable in connection with § 301.
33
Sound reasons explain why repeal of Norris-LaGuardia provisions, acceptable in other settings, might have been found ill-suited for the purpose of § 301. And those reasons fall far short of a design to preclude absolutely the issuance under § 301 of any injunction against an activity included in § 4 of Norris-LaGuardia. Section 10(h) of the Act9 simply lifts the § 4 barrier in connection with proceedings brought by the National Labor Relations Board—in the Courts of Appeals for enforcement of Board cease-and-desist orders against unfair labor practices, and in the District Courts for interlocutory relief against activities being prosecuted before the Board as unfair labor practices. This repeal in aid of government litigation to enforce carefully drafted prohibitions already in the Act as unfair labor practices was, obviously, entirely appropriate, definitely limited in scope, predictable in effect, and devoid of any risk of abuse or misunderstanding. Much the same is true of § 208(b) of Taft-Hartley,10 which simply repeals Norris-LaGuardia in a case where the Attorney General seeks an injunction at the direction of the President, who must be of the opinion—after having been advised by a board of inquiry—that continuation of the strike in question would imperil the national health and safety.
34
Only in § 302(e) of Taft-Hartley11 is there found a repeal of Norris-LaGuardia's anti-injunction provisions in favor of a suit by a private litigant.12 The District Courts are there authorized to restrain the payment by employers and the acceptance by employee representatives of unauthorized payments in the nature of bribes. Not only is the problem thus dealt with 'unusually sensitive and important,' as the Court notes,13 but the repeal of Norris-LaGuardia is clearly, predictably, and narrowly confined to one kind of suit over one kind of injury; and obviously it presents no possible threat to the important purposes of that Act.
35
How different was the problem posed by § 301, which broadly authorized District Courts to decide suits for breach of contract. The Congress understandably may not have felt able to predict what provisions would crop up in collective bargaining agreements, to foresee the settings in which these would become subjects of litigation, or to forecast the rules of law which the courts would apply. The consequences of repealing the anti-injunction provisions in this context would have been completely unknowable, and outright repeal, therefore, might well have seemed unthinkable. Congress, clearly, had no intention of abandoning wholesale the Norris-LaGuardia policies in contract suits; but it does not follow that § 301 is not the equal of § 4 in cases which implicate both provisions.
36
Indeed, it might with as much force be said that Congress knew well how to limit remedies against employee activities to damages when that was what it intended, as that Congress knew how to repeal Norris-LaGuardia when that was what it intended. Section 303 of Taft-Hartley14 authorizes private actions for damages resulting from certain concerted employee activities. When that section was introduced on the Senate floor, it provided for injunctive relief as well. Extended debate revealed strong sentiment against the injunction feature, which incorporated a repeal of Norris-LaGuardia. The section's supporters, therefore, proposed a different version which provided for damages only. In this form, the section was adopted by the Senate—and later by the Conference and the House.15 Certainly, after this experience Congress would have used language confining § 301 to damage remedies when it was invoked against concerted activity, if such had been the intention.
37
The statutory language thus fails to support the Court's position. The inference is at least as strong that Congress was content to rely upon the courts to resolve any seeming conflicts between § 301 and § 4 as they arose in the relatively manageable setting of particular cases, as that Congress intended to limit to damages the remedies courts could afford against concerted activities under § 301. The Court then should so exercise its judgment as best to effect the most important purposes of each statute. It should not be bound by inscrutable congressional silence to a wooden preference for one statute over the other.
38
Nor does the legislative history of § 301 suggest any different conclusion. As the Court notes, the House version would have repealed Norris-LaGuardia in suits brought under the new section.16 The Senate version of § 301, like the section as enacted, did not deal with Norris-LaGuardia, but neither did it limit the remedies available against concerted activity.17 Thus any attempt to ascertain the Senate's intention would face the same choices as those I have suggested in dealing with the language of § 301 as finally enacted. It follows that to construe the Conference Committee's elimination of the House repeal as leaving open the possibility of judicial accommodation is at least as reasonable as to conclude that Congress, by its silence, was directing the courts to disregard § 301 whenever opposition from § 4 was encountered.18
39
I emphasize that the question in this case is not whether the basic policy embodied in Norris-LaGuardia against the injunction of activities of labor unions has been abandoned in actions under § 301; the question is simply whether injunctions are barred against strikes over grievances which have been routed to arbitration by a contract specifically enforceable against both the union and the employer. Enforced adherence to such arbitration commitments has emerged as a dominant motif in the developing federal law of collective bargaining agreements. But there is no general federal anti-strike policy; and although a suit may be brought under § 301 against strikes which, while they are breaches of private contracts, do not threaten any additional public policy, in such cases the anti-injunction policy of Norris-LaGuardia should prevail. Insistence upon strict application of Norris-LaGuardia to a strike over a dispute which both parties are bound by contract to arbitrate threatens a leading policy of our labor relations law. But there may be no such threat if the union has made no binding agreement to arbitrate; and if the employer cannot be compelled to arbitrate, restraining the strike would cut deep into the core of Norris-LaGuardia. Therefore, unless both parties are so bound, limiting an employer's remedy to damages might well be appropriate. The susceptibility of particular concrete situations to this sort of analysis shows that rejection of an outright repeal of § 4 was wholly consistent with acceptance of a technique of accommodation which would lead, in some cases, to the granting of injunctions against concerted activity. Accommodation requires only that the anti-injunction policy of Norris-LaGuardia not intrude into areas, not vital to its ends, where injunctive relief is vital to a purpose of § 301; it does not require unconditional surrender.
IV.
40
Today's decision cannot be fitted harmoniously into the pattern of prior decisions on analogous and related matters. Considered in their light, the decision leads inescapably to results consistent neither with any imaginable legislative purpose nor with sound judicial administration.
41
We have held that uniform doctrines of federal labor law are to be fashioned judicially in suits brought under § 301, Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972; that actions based on collective agreements remain cognizable in state as well as federal courts, Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483; and that state courts must apply federal law in such actions, Local 174 Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593.
42
The question arises whether today's prohibition of injunctive relief is to be carried over to state courts as a part of the federal law governing collective agreements. If so, § 301, a provision plainly designed to enhance the responsibility of unions to their contracts, will have had the opposite effect of depriving employers of a state remedy they enjoyed prior to its enactment.
43
On the other hand if, as today's literal reading suggests19 and as a leading state decision holds,20 States remain free to apply their injunctive remedies against concerted activities in breach of contract, the development of a uniform body of federal contract law is in for hard times. So long as state courts remain free to grant the injunctions unavailable in federal courts, suits seeking relief against concerted activities in breach of contract will be channeled to the States whenever possible. Ironically, state rather than federal courts will be the preferred instruments to protect the integrity of the arbitration process, which Lincoln Mills and the Steelworkers decisions forged into a kingpin of federal labor policy. Enunciation of uniform doctrines applicable in such cases will be severely impeded. Moreover, the type of relief available in a particular instance will turn on fortuities of locale and susceptibility to process—depending upon which States have anti-injunction statutes and how they construe them.
44
I have not overlooked the possibility that removal of the state suit to the federal court might provide the answer to these difficulties. But if § 4 is to be read literally, removal will not be allowed.21 And if it is allowed, the result once again is that § 301 will have had the strange consequence of taking away a contract remedy available before its enactment.
V.
45
The decision deals a crippling blow to the cause of grievance arbitration itself. Arbitration is so highly regarded as a proved technique for industrial peace that even the Norris-LaGuardia Act fosters its use.22 But since unions cannot be enjoined by a federal court from striking in open defiance of their undertakings to arbitrate, employers will pause long before committing themselves to obligations enforceable against them but not against their unions. The Court does not deny the desirability, indeed, necessity, for injunctive relief against a strike over an arbitrable grievance.23 The Court says only that federal courts may not grant such relief, that Congress must amend § 4 if those courts are to give substance to the congressional plan of encouraging peaceable settlements of grievances through arbitration.
VI.
46
A District Court entertaining an action under § 301 may not grant injunctive relief against concerted activity unless and until it decides that the case is one in which an injunction would be appropriate despite the Norris-LaGuardia Act. When a strike is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate, the District Court may issue no injunctive order until it first holds that the contract does have that effect; and the employer should be ordered to arbitrate, as a condition of his obtaining an injunction against the strike. Beyond this, the District Court must, of course, consider whether issuance of an injunction would be warranted under ordinary principles of equity—whether breaches are occurring and will continue, or have been threatened and will be committed; whether they have caused or will cause irreparable injury to the employer; and whether the employer will suffer more from the denial of an injunction than will the union from its issuance.
47
In the case before us, the union enjoys the contractual right to make the employer submit to final and binding arbitration of any employee grievance. At the same time, the union agrees that '(T)here shall be no strikes * * * for any cause which is or may be the subject of a grievance.'24 The complaint alleged that the union had, over the past several months, repeatedly engaged in 'quickie' strikes over arbitrable grievances. Under the contract and the complaint, then, the District Court might conclude that there have occurred and will continue to occur breaches of contract of a type to which the principle of accommodation applies. It follows that rather than dismissing the complaint's request for an injunction, the Court should remand the case to the District Court with directions to consider whether to grant the relief sought—an injunction against future repetitions. This would entail a weighing of the employer's need for such an injunction against the harm that might be inflicted upon legitimate employee activity. It would call into question the feasibility of setting up in futuro contempt sanctions against the union (for striking) and against the employer (for refusing to arbitrate) in regard to prospective disputes which might fall more or less clearly into the adjudicated category of arbitrable grievances. In short, the District Court will have to consider with great care whether it is possible to draft a decree which would deal equitably with all the interests at stake.
48
I would reverse the Court of Appeals and remand to the District Court for further proceedings consistent with this dissenting opinion.
1
'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.' 61 Stat. 156, 29 U.S.C. § 185(a), 29 U.S.C.A. § 185(a).
2
'No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:
'(a) Ceasing or refusing to perform any work or to remain in any relation of employment;
'(e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence;
'(i) Advising, urging, or otherwise causing or inducing without fraud or violence the acts heretofore specified * * *.' 47 Stat. 70, 29 U.S.C. § 104, 29 U.S.C.A. § 104.
3
The suit filed by Sinclair was in three counts, only one of which, Count 3, is involved in this case. Counts 1 and 2, upon which Sinclair prevailed below, are also before the Court in No. 430. See Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318.
4
187 F.Supp. 225.
5
Id., at 228.
6
290 F.2d 312.
7
Chauffeurs, Teamsters & Helpers Local No. 795 v. Yellow Transit Freight Lines, 10 Cir., 282 F.2d 345. Both the First and the Second Circuits have also considered this question and both have taken the same position as that taken below. See W. L. Mead, Inc., v. Teamsters Local No. 25, 1 Cir., 217 F.2d 6; Alcoa S.S. Co. v. McMahon, 2 Cir., 173 F.2d 567; In re Third Ave. Transit Corp. (Lehman v. Quill), 2 Cir., 192 F.2d 971; A. H. Bull Steamship Co. v. Seafarers' International Union, 2 Cir., 250 F.2d 326.
8
368 U.S. 937, 82 S.Ct. 378, 7 L.Ed.2d 336.
9
47 Stat. 73, 29 U.S.C. § 113, 29 U.S.C.A. § 113.
10
The allegations of the complaint with regard to the nine occurrences in question are as follows:
'(a) On or about July 1, 1957, six employees assigned to the #810 Crude Still stopped work in support of an asserted grievance involving the removal of Shift Machinists from the #810 Still area;
'(b) On or about September 17, 1957, all employees employed in the Mason Department refused to work on any shift during the entire day; the entire Mechanical Department refused to work from approximately noon until midnight; the employees of the Barrel House refused to work from the middle of the afternoon until midnight; a picket line was created which prevented operators from reporting to work on the 4:00 P.M. to midnight shift, all in support of an asserted grievance on behalf of five apprentice masons for whom
insufficient work was available to permit their retention at craft levels.
'(c) On or about March 28, 1958, approximately 73 employees in the Rigging Department refused to work for approximately one hour in support of an asserted grievance that riggers were entitled to do certain work along with machinists.
'(d) On or about May 20, 1958, approximately 24 employees in the Rigging Department refused to work for 1 3/4 hours in support of an asserted grievance that riggers were entitled to do certain work along with boilermakers.
'(e) On or about September 11, 1958, approximately 24 employees in the Rigging Department refused to work for approximately two hours in support of an asserted grievance that pipefitters could not dismantle and remove certain pipe coils without riggers being employed on the said work also.
'(f) On or about October 6 and 7, 1958, approximately 43 employees in the Cranes and Trucks Department refused to work for approximately eight hours in support of an asserted grievance concerning employment by the Company of an independent contractor to operate a contractor owned crane.
'(g) On or about November 19, 1958, approximately 71 employees refused to work for approximately 3 3/4 hours in the Boilermaking Department in support of an asserted grievance that burners and riggers would not dismantle a tank roof without employment of boilermakers at the said task.
'(h) On or about November 21, 1958, in further pursuance of the asserted grievance referred to in subparagraph (g) preceding, the main entrance to the plant was picketed and barricaded, thereby preventing approximately 800 employees from reporting for work for an entire shift.
'(i) On or about February 13 and 14, 1959, approximately 999 employees were induced to stop work over an asserted grievance on behalf of three riggers that they should not have been docked an aggregate of $2.19 in their pay for having reported late to work.'
11
'In the interpretation of this Act and in determining the jurisdiction and authority of the courts of the United States, as such jurisdiction and authority are herein defined and limited, the public policy of the United States is hereby declared as follows:
'Whereas under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; therefore, the following definitions of, and limitations upon, the jurisdiction and authority of the courts of the United States are enacted.' 47 Stat. 70, 29 U.S.C. § 102, 29 U.S.C.A. § 102.
12
One of the most forthright arguments for judicial re-evaluation of the wisdom of the anti-injunction provisions of the Norris-LaGuardia Act and judicial rather than congressional revision of the meaning and scope of these provisions as applied to conduct in breach of a collective bargaining agreement is presented in Gregory, The Law of the Collective Agreement, 57 Mich.L.Rev. 635. That author, in urging that a strike in breach of a collective agreement should not now be held to involve or grow out of a 'labor dispute' within the meaning of the Norris-LaGuardia Act, states: 'After all, 1932 was a long time ago and conditions have changed drastically. Judges who still confuse violations of collective agreements with § 13 labor disputes and § 4 conduct have, in my opinion, lost contact with reality. The passage of time has operated as a function of many other types of judicial output at the highest level. I do not see why it should not do so in this instance, as well.' Id., at 645—646, n. 39. See also Stewart, No-Strike Clauses in the Federal Courts, 59 Mich.L.Rev. 673, especially at 683; Rice, A Paradox of our National Labor Law, 34 Marq.L.Rev. 233.
13
Thus we conclude here precisely as we did in Lauf v. E. G. Shinner & Co., 303 U.S. 323, 330, 58 S.Ct. 578, 582, 82 L.Ed. 872: 'We find nothing in the declarations of policy which narrows the definition of a labor dispute as found in the statutes. The rights of the parties and the jurisdiction of the federal courts are to be determined according to the express provisions applicable to labor disputes as so defined.'
14
United States v. Hutcheson, 312 U.S. 219, 234, 61 S.Ct. 463, 467, 85 L.Ed. 788, and cases cited therein.
15
See note 2, supra.
16
We need not here again go into the history of the Norris-LaGuardia Act nor the abuses which brought it into being for that has been amply discussed on several occasions. See Frankfurter and Greene, The Labor Injunction. And see e.g., United States v. Hutcheson, 312 U.S. 219, 235—236, 61 S.Ct. 463, 467, 468; Milk Wagon Drivers' Union v. Lake Valley Farm Products, Inc., 311 U.S. 91, 102—103, 61 S.Ct. 122, 127, 128, 85 L.Ed. 63. It is sufficient here to note that the reasons which led to the passage of the Act were substantial and that the Act has been an important part of the pattern of legislation under which unions have functioned for nearly 30 years.
17
Section 301(e) of the Act, 61 Stat. 156, 29 U.S.C. § 185(e), 29 U.S.C.A. § 185(e), provides: '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.' This, of course, was dsigned to and did repeal for purposes of suits under § 301 the previously controlling provisions of § 6 of the Norris-LaGuardia Act, 47 Stat. 71, 29 U.S.C. § 106, 29 U.S.C.A § 106: 'No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.'
18
61 Stat. 146, 155, as amended, 29 U.S.C. §§ 160(h), 178(b), 29 U.S.C.A. §§ 160(h), 178(b).
19
61 Stat. 157, 29 U.S.C. § 186(e), 29 U.S.C.A. § 186(e). That this section, which stands alone in expressly permitting suits for injunctions previously proscribed by the Norris-LaGuardia Act to be brought in the federal courts by private litigants under the Taft-Hartley Act, deals with an unusually sensitive and important problem is shown by the fact that § 186 makes the conduct so enjoinable a crime punishable by both fine and imprisonment.
20
This fact was expressly recognized by the Court of Appeals for the Second Circuit in A. H. Bull Steamship Co. v. Seafarers' International Union, 250 F.2d 326, 331—332. See also W. L. Mead, Inc., v. Teamsters Local No. 25, 2 Cir., 217 F.2d 6, 9 10; Comment, Labor Injunctions and Judge-Made Labor Law: The Contemporary Role of Norris-LaGuardia, 70 Yale L.J. 70, 97—99. Another commentator, though urging his own belief that a strike in breach of a collective agreement is not a 'labor dispute' within the Norris-LaGuardia Act, nevertheless admits that Congress thought it was and deliberately decided to leave the anti-injunction provisions of that Act applicable to § 301 suits. See Rice, A Paradox of our National Labor Law, 34 Marq.L.Rev. 233, 235.
21
H.R. 3020, 80th Cong., 1st Sess., as it passed the House, provided:
'SEC. 302.1—(a) Any action for or proceeding involving a violation of an agreement between an employer and a labor organization or other representative of employees may be brought by either party in any district court of the United States having jurisdiction of the parties, without regard to the amount in controversy, if such agreement affects commerce, or the court otherwise has jurisdiction of the cause.
'(e) In actions and proceedings involving violations of agreements between an employer and a labor organization or other representative of employees, the provisions of the Act of March 23, 1932, entitled 'An Act to amend the Judicial Code and to define and limit the jurisdiction of courts sitting in equity and for other purposes,' shall not have any application in respect of either party.' I Legislative History of the Labor Management Relations Act, 1947, 221—222.
22
This is true both of the original Senate bill, S. 1126, as reported and of the amended House bill, H.R. 3020, as passed by the Senate. I Leg.Hist. 151—152; I Leg.Hist. 279—280.
23
I Leg.Hist. 111—112, 114, 239, 241—242.
24
In such a situation, suit for injunction could be brought by the Board and, by virtue of § 10(h) of the National Labor Relations Act, as amended by the Taft-Hartley Act, 61 Stat. 146, 29 U.S.C. § 160(h), 29 U.S.C.A. § 160(h), the Norris-LaGuardia Act would not apply.
25
H.R.Conf.Rep. No. 510, U.S.Code Cong. Service 1947, p. 1135, on H.R. 3020, 80th Cong., 1st Sess., pp. 41—42, 1 Leg.Hist. 545—546.
26
H.R.Conf.Rep. No. 510, on H.R. 3020, 80th Cong., 1st Sess., p. 66, I Leg.Hist. 570.
27
93 Cong.Rec. 6445—6446, II Leg.Hist. 1544. Immediately prior to this remark, Senator Taft had inserted into the Record a written summary of his understanding as to the effect of the conference upon the bill passed by the Senate: 'When the bill passed the Senate it also contained a sixth paragraph in this subsection (8(a)) which made it an unfair labor practice for an employer to violate the terms of a collective-bargaining agreement or the terms of an agreement to submit a labor dispute to arbitration. The House conferees objected to this provision on the ground that it would have the effect of making the terms of every collective agreement subject to interpretation and determination by the Board, rather than by the courts. The Senate conferees ultimately agreed to its elimination as well as the deletion of a similar provision contained in subsection 8(b)(5) of the Senate amendment which made it an unfair labor practice for a labor organization to violate the terms of collective-bargaining agreements. The provisions of the Senate amendment which conferred a right of action for damages upon a party aggrieved by breach of a collective-bargaining contract, however, were retained in the conference agreement (section 301).' 93 Cong.Rec. 6443, II Leg.Hist. 1539. (Emphasis supplied.)
28
The legislative history of the Taft-Hartley Act shows that Congress actually considered and relied upon this normal functioning of the judicial power as insuring that no unintended repeal of the anti-injunction provisions of the Norris-LaGuardia Act would be declared. Thus Senator Taft, when pressed by Senator Morse with regard to the possibility that a provision inserted in § 303(a) declaring secondary boycotts unlawful might be held to justify an injunction previously forbidden by the Norris-LaGuardia Act, stated: 'Let me say in reply to the Senator or anyone else who makes the same argument, that that is not the intention of the author of the amendment. It is not his belief as to the effect of it. It is not the advice of counsel to the committee. Under those circumstances, I do not believe that any court would construe the amendment along the lines suggested by the Senator from Oregon.' 93 Cong.Rec. 4872, II Leg.Hist. 1396.
29
353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622.
30
The Court in Chicago River expressly recognized and rested its decision upon the differences between provisions for the settlement of disputes under the Railway Labor Act and the Taft-Hartley Act. Id., at 31—32, note 2, 77 S.Ct. at 636. See also Order of Railroad Telegraphers v. Chicago & North Western R. Co., 362 U.S. 330, 338—340, 80 S.Ct. 761, 4 L.Ed.2d 774.
31
353 U.S. 30, at 39, 77 S.Ct. 635, at 640.
32
353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972.
33
Id., at 458, 77 S.Ct. at 918. See also Order of Railroad Telegraphers v. Chicago & North Western R. Co., 362 U.S. 330, 338 339, 80 S.Ct. 761, 765, 766, where Lincoln Mills and other cases not involving an injunction against activity protected by § 4 of the Norris-LaGuardia Act were distinguished on this ground.
34
An injunction against a strike or peaceful picketing in breach of a collective agreement 'would require strong judicial creativity in the face of the plain meaning of Section 4,' Cox, Current Problems in the Law of Grievance Arbitration, 30 Rocky Mt. L.Rev. 247, 256, for, indeed, such an injunction 'would fly in the face of the plain words of Section 4 of the Norris-LaGuardia Act, the historical purpose of which was to make peaceful concerted activities unenjoinable without regard to the nature of the labor dispute.' Id., at 253.
35
363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403.
36
363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409.
37
363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424.
38
Textile Workers Union v. Lincoln Mills, 353 U.S. 448, at 458—459, 77 S.Ct. 912, at 919.
39
We have not ignored Sinclair's argument that to apply the Norris-LaGuardia Act here would deprive it of its constitutional right to equal protection of the law, both because of an allegedly unlawful discrimination between Taft-Hartley Act employers and Railway Labor Act employers by virtue of the decision in Chicago River, and because of an allegedly unlawful discrimination between Taft-Hartley Act employers and unions by virtue of the decision in Lincoln Mills. We deem it sufficient to say that we do not find either of these argument compelling.
1
Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972; United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; United Steelworkers v. Enterprise Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424.
2
In Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.ed.2d 593, we held that a strike over a dispute which a contract provides shall be settled exclusively by binding arbitration is a breach of contract despite the absence of a no-strike clause, saying, at p. 105, 82 S.Ct. at p. 579: '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.' And in Brotherhood of Railroad Trainmen v. Chicago River R. Co., 353 U.S. 30, 39, 77 S.Ct. 635, 639, 1 L.Ed.2d 622, we recognized that allowing a strike over an arbitrable dispute would effectively 'defeat the jurisdiction' of the arbitrator.
3
353 U.S. at 40, 77 S.Ct. at 640.
4
Id., at 41, 77 S.Ct. at 640.
5
See, e.g., S.Rep. No. 163, 72d Cong., 1st Sess., p. 18; Frankfurter and Greene, The Labor Injunction, pp. 24—46, 200, 202.
6
It is worth repeating that the Railway Labor Act incorporates no express prohibition of strikes over 'minor disputes.'
7
Ante, 370 U.S., p. 205, 82 S.Ct., p. 1334.
8
Ante, 370 U.S., p. 205, 82 S.Ct., p. 1334. (Emphasis added.)
9
National Labor Relations Act, § 10(h), 61 Stat. 149, 29 U.S.C. § 160(h), 29 U.S.C.A. § 160(h).
10
61 Stat. 155, 29 U.S.C. § 178, 29 U.S.C.A. § 178.
11
61 Stat. 158, 29 U.S.C. § 186(e), 29 U.S.C.A. § 186(e).
12
Section 301(e), 61 Stat. 157, 29 U.S.C. § 185(e), 29 U.S.C.A. § 185(e), also mentioned by the Court, has no bearing on injunction problems. It repeals, for its purposes, § 6 of the Norris-LaGuardia Act, which deals with agency responsibility for concerted activities. Its only relevance here is in showing what is clear anyway: That § 301 effected no repeal of the anti- injunction provisions of Norris-LaGuardia.
13
Ante, 370 U.S., p. 205, 82 S.Ct., p. 1334, n. 19.
14
29 U.S.C. § 187, 29 U.S.C.A. § 187.
15
See II Leg.Hist. 1323—1400; I Leg.Hist. 571.
16
I Leg.Hist. 221—222.
17
I Leg.Hist. 279—280.
18
There is nothing in any Committee Report, or in any floor debate, which even intimates a confinement of § 301 remedies to damages in cases involving concerted activities. The only bit of legislative history which could is the statement of Senator Taft, quoted by the Court at note 27 of its opinion, which he inserted into the Congressional Record. What little significance that isolated insertion might have had has, of course, been laid to rest by Lincoln Mills.
19
Section 4 commences: 'No courts of the United States shall have jurisdiction to issue any restraining order * * *.'
20
McCarroll v. Los Angeles County District Council, 49 Cal.2d 45, 315 P.2d 322.
21
Compare note 19, supra, with the language of the removal statute, 28 U.S.C. § 1441, 28 U.S.C.A. § 1441, allowing removal in cases 'of which the district courts of the United States have original jurisdiction.'
22
See Norris-LaGuardia Act, § 8, 47 Stat. 72, 29 U.S.C. § 108, 29 U.S.C.A. § 108.
23
The Court acknowledges, of course, that an employer may obtain an order directing a union to comply with its contract to arbitrate. Consistently with what we said in Lucas, supra, note 2, a strike in the face of such an order would risk a charge of contempt.
24
See Atkinson v. Sinclair Rfg. Co., 370 U.S. 238, 82 S.Ct. 1318.
| 67
|
370 U.S. 711
82 S.Ct. 1293
8 L.Ed.2d 792
CHAUFFEURS, TEAMSTERS AND HELPERS LOCAL UNION NO. 795, etc., et al., Petitioners,v.YELLOW TRANSIT FREIGHT LINES, INC., et al.
No. 13.
Supreme Court of the United States
Argued Oct. 11, 1961.
June 25, 1962
David Previant, Milwaukee, Wis., for petitioners.
Malcolm Miller, Wichita, Kan., for respondents.
PER CURIAM.
1
Reversed. Sinclair Rfg. Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328.
2
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice HARLAN join, concurring.
3
Since it is clear that the collective bargaining agreement involved in this case does not bind either party to arbitrate any dispute, I agree that no injunction should be granted.* See Sinclair Rfg. Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328 (dissenting opinion).
4
Mr. Justice FRANKFURTER took no part in the decision of this case.
5
Mr. Justice WHITE took no part in the consideration or decision of this case.
*
The grievance machinery emphasizes voluntary settlements through negotiations between employer and union representatives. Settlement is first to be attempted between the employer and the local union involved and, failing adjustment, negotiated settlement is to be attempted by a joint state committee consisting of equal numbers of employer and union representatives. If a majority of that committee 'settles a dispute,' '(s)uch a decision will be final and binding on both parties.' If a joint state committee fails to settle a dispute, a negotiated settlement is then to be attempted by a joint area committee consisting of equal numbers of employer and union representatives duly elected by the various joint state committees. This is the last stage unless there is agreement at that point to submit unsettled disputes to arbitration. Obviously, either employer or union representatives are free to prevent arbitration. For the contract provisions are:
'(d) Deadlocked cases may be submitted to umpire handling if a majority of the Joint Area Committee determines to submit such matter to an umpire for decision. Otherwise either party shall be permitted all legal or economic recourse.
'(f) In the event of strikes, work-stop-pages or other activities which are permitted in case of deadlock, default, or failure to comply with majority decisions, no interpretation of this Agreement by any tribunal shall be binding upon the Union or affect the legality or lawfulness of the strike unless the Union stipulates to be bound by such interpretation, it being the intention of the parties to resolve all questions of interpretation by mutual agreement. Nothing herein shall prevent legal proceedings by the Employer where the strike is in violation of this Agreement.'
| 67
|
370 U.S. 375
82 S.Ct. 1364
8 L.Ed.2d 569
James I. WOOD, Petitioner,v.GEORGIA.
No. 369.
Argued March 29, 1962.
Decided June 25, 1962.
Milton Kramer, Washington, D.C., for petitioner.
E. Freeman Leverett, Elberton, Ga., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
We granted certiorari to consider the scope of the constitutional protection to be enjoyed by persons when the publication of their thoughts and opinions is alleged to be in conflict with the fair administration of justice in state courts. The petitioner, an elected sheriff in Bibb County, Georgia, contends that the Georgia courts, in holding him in contempt of court for expressing his personal ideas on a matter that was presently before the grand jury for its consideration, have abridged his liberty of free speech as protected by the First Amendment and the Due Process Clause of the Fourteenth Amendment to the Federal Constitution.
2
On June 6, 1960, a judge of the Bibb Superior Court issued a charge to a regularly impaneled grand jury, giving it special instructions to conduct an investigation into a political situation which had allegedly arisen in the county. The jury was advised that there appeared to be 'an inane and inexplicable pattern of Negro bloc voting' in Bibb County, and that 'rumors and accusations' had been made which indicated candidates for public office had paid large sums of money in an effort to gain favor and to obtain the Negro vote. The charge explained that certain Negro leaders, after having met and endorsed a candidate, had switched their support to an opposing candidate who put up a large sum of money, and that this 'create(d) an unhealthy, dangerous, and unlawful situation (which) tend(ed) to corrupt public office holders and some candidates for public office.' The charge continued by indicating the violations of law which would be involved should the grand jury find the charges to be founded in truth.1 In addition, certain questions were posed to the jury which it was to investigate in inquiring into the charges of election law violations.2 The instructions were given in the midst of a local political campaign and the judge, in order to publicize the investigation, requested reporters for all local news media to be present in the courtroom when the charge was delivered.
3
The following day, while the grand jury was in session investigating the matters set forth in the instructions delivered by the court, the petitioner issued to the local press a written statement in which he criticized the judges' action and in which he urged the citizenry to take notice when their highest judicial officers threatened political intimidation and persecution of voters in the county under the guise of law enforcement. This news release, which was published and disseminated to the general public, stated:
4
'Whatever the Judges' intention, the action * * * ordering (the grand jury) * * * to investigate 'negro block voting' will be considered one of the most deplorable examples of race agitation to come out of Middle Georgia in recent years.
5
'At a time when all thinking people want to preserve the good will and cooperation between the races in Bibb County, this action appears either as a crude attempt at judicial intimidation of negro voters and leaders, or, at best, as agitation for a 'negro vote' issue in local politics.
6
'No one would question the duty of a Grand Jury to investigate any and all election law violations. However, simple justice would demand that the Judge not single out the negro people for particular investigation. * * *
7
'Negro people will find little difference in principle between attempted intimidation of their people by judicial summons and inquiry and attempted intimidation by physical demonstration such as used by the K.K.K.
8
'It is hoped that the present Grand Jury will not let its high office be a party to any political attempt to intimidate the negro people in this community.
9
'It seems incredible that all three of our Superior Court Judges, who themselves hold high political office, are so politically nieve (naive) as to actually believe that the negro voters in Bibb County sell their votes in any fashion, either to candidates for office or to some negro leaders.
10
'If anyone in the community (should) be free of racial prejudice, it should be our Judges. It is shocking to find a Judge charging a Grand Jury in the style and language of a race baiting candidate for political office.
11
'However politically popular the judges action may be at this time, they are employing a practice far more dangerous to free elections than anything they want investigated.
12
'James I. Wood.'
13
The following day, the petitioner delivered to the bailiff of the court, stationed at the entrance to the grand jury room, 'An Open Letter to the Bibb County Grand Jury,' which was made available to the grand jury at petitioner's request. This letter, implying that the court's charge was false, asserted that in the petitioner's opinion, the Bibb County Democratic Executive Committee was the organization responsible for corruption in the purchasing of votes, and that the grand jury would be well-advised also to investigate that organization.
14
A month later, on July 7, 1960, the petitioner was cited in two counts of contempt based on the above statements. The citation charged that the language used by the petitioner was designed and calculated to be contemptuous of the court, to ridicule the investigation ordered by the charge, and 'to hamper, hinder, interfere with and obstruct' the grand jury in its investigation. It also alleged that the news release was issued from the Bibb County Sheriff's Office, located in the courthouse in which the grand jury had been charged and where it was deliberating, and that the language imputed lack of judicial integrity to the three judges of the court responsible for the charge. An amendment to the citation alleged that the statements 'in and of (themselves) created * * * a clear, present and imminent danger to the investigation being conducted * * * and * * * to the proper administration of justice in Bibb Superior Court.'
15
The next day the petitioner issued a further press release in which he repeated substantially the charges he had made in the release on June 7, and in which he asserted that his defense to the contempt citation would be that he had spoken the truth. The contempt citation was thereupon amended by including a third count based on this latter statement. The third count contained the same allegations as the other counts and, in addition, charged that the petitioner's action presented a clear and present danger to the handling of the contempt citation against the petitioner.
16
At a hearing before the trial judge,3 certain facts were stipulated: that the petitioner's statements were made while the grand jury was in session investigating matters suggested in the charge by the court; that the grand jury had before it the voting tabulations and other documents, including endorsements by certain political groups relating to primaries and elections in which the petitioner participated as a candidate and as an active supporter for other candidates; and that the members of the grand jury and the judges themselves had seen and read the press releases issued by the petitioner. In addition, it was stipulated that the petitioner's sworn response be admitted as evidence. The allegations in this response, which must be considered as true in the absence of contrary evidence and in the absence of findings of fact by the trial judge, included the verification that the statements were made by petitioner in his capacity as a private citizen and not as sheriff of the county; that petitioner was directly and personally interested in the outcome of the current primary election not only as a private citizen but also as an announced candidate for public office in the general election to be held the following November, and in which election the petitioner would be running against the contestant who prevailed in the democratic primary; that he believed the language employed in the charge was of such a nature that it tended to create or emphasize issues likely to have a drastic impact upon the outcome of the primary; that his purpose in issuing the statements was simply to inform the public of what he sincerely believed to be the other side of the issue created by the charge; and that the statements were not intended to be contemptuous of the court or to hinder the investigation. The petitioner also asserted that he adopted the same method of distributing his views to the general public as did the court in disseminating the grand jury charge. No witnesses were presented at the hearing and no evidence was introduced to show that the publications resulted in any actual interference or obstruction of the court or the work of the grand jury. The gravamen of the contempt citation, and of the State's case against the petitioner, was that the mere publishing of the news release and defense statement constituted a contempt of court, and in and of itself was a clear and present danger to the administration of justice.
17
The trial court, without making any findings and without giving any reasons, adjudged petitioner guilty on all counts and imposed concurrent sentences of 20 days and separate fines of $200 on each. On writ of error to the Court of Appeals the convictions on counts one and three were affirmed and the conviction on count two, based on the open letter to the grand jury, was reversed. Wood v. Georgia, 103 Ga.App. 305, 119 S.E.2d 261. After the Georgia Supreme Court, without opinion, declined to review the convictions on the first and third counts, the petitioner sought a writ of certiorari to this Court which we granted. 368 U.S. 894, 82 S.Ct. 178, 7 L.Ed.2d 92.
18
We start with the premise that the right of courts to conduct their business in an untrammeled way lies at the foundation of our system of government and that courts necessarily must possess the means of punishing for contempt when conduct tends directly to prevent the discharge of their functions. While courts have continuously had the authority and power to maintain order in their courtrooms and to assure litigants a fair trial, the exercise of that bare contempt power is not what is questioned in this case. Here it is asserted that the exercise of the contempt power, to commit a person to jail for an utterance out of the presence of the court, has abridged the accused's liberty of free expression. In this situation the burden upon this Court is to define the limitations upon the contempt power according to the terms of the Federal Constitution.
19
In Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192, this Court for the first time had occasion to review a State's exercise of the contempt power utilized to punish the publisher of an out-of-court statement. The accused contended that the exercise abridged his right of free speech guaranteed against state infringement by the Fourteenth Amendment.4 To determine the scope of this constitutional protection, the Court reviewed the history of the contempt power, both in England and in this country. It held that 'the only conclusion supported by (that) history is that the unqualified prohibitions laid down by the framers were intended to give to liberty of the press as to the other liberties, the broadest scope that could be countenanced in an orderly society.' Id., at 265, 62 S.Ct. at 194, 195.5 Thus clarifying the exercise of this judicial power in the context of the protections assured by the First Amendment, the Court held that out-of-court publications were to be governed by the clear and present danger standard, described as 'a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.' Id., at 263, 62 S.Ct. at 194.6 Subsequently, in Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295, after noting that '(f)ree discussion of the problems of society is a cardinal principle of Americanism—a principle which all are zealous to preserve' (id., at 346, 66 S.Ct. at 1037), the Court reaffirmed its belief that the 'essential right of the courts to be free of intimidation and coercion * * * (is) consonant with a recognition that freedom of the press must be allowed in the broadest scope compatible with the supremacy of order.' Id., at 334, 66 S.Ct. at 1031.7 The Court's last occasion to consider the application of the clear and present danger principle to a case of the type under review was in Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546. There the Court held that to warrant a sanction '(t)he fires which (the expression) kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.' Id., at 376, 67 S.Ct. at 1255.8
20
It is with these principles in mind that we consider the case before us. Initially, however, it should be noted that the Georgia courts have determined that the power to punish for contempt of court is inherent in its state judiciary9 and the Court of Appeals thus ignored the express limitations imposed by the Georgia Legislature in punishing out-of-court statements.10 This holding thus deprives the judgment of coming to this Court 'encased in the armor wrought by prior legislative deliberation,' Bridges v. California, supra, 314 U.S. at 261, 62 S.Ct. at 192, and it is upon this basis that we proceed.
21
This case differs from Bridges and Pennekamp, first, in that the court below has upheld petitioner's conviction on the basis that his conduct presented a clear and present danger to the proceedings of the court and grand jury, a standard this Court has held to warrant punishment for alleged contemptuous conduct. But state courts may not preclude us from our responsibility to examine 'the evidence to see whether it furnishes a rational basis for the characterization put on it' (In re Sawyer, 360 U.S. 622, 628, 79 S.Ct. 1376, 1379, 3 L.Ed.2d 1473) by the enunciation of a constitutionally acceptable standard in describing the effect of the conduct. The ultimate responsibility to define the limits of state power regarding freedom of speech and expression rests with this Court, Pennekamp v. Florida, supra, 328 U.S. at 335, 66 S.Ct. at 1031; see Chambers v. Florida, 309 U.S. 227, 228—229, 60 S.Ct. 472, 473, 84 L.Ed. 716; Fiske v. Kansas, 274 U.S. 380, 385—386, 47 S.Ct. 655, 656—657, 71 L.Ed. 1108; and when it is claimed that such liberties have been abridged, we cannot allow a presumption of validity of the exercise of state power to interfere with our close examination of the substantive claim presented.11
22
Despite its conclusion that the petitioner's conduct created a serious evil to the fair administration of justice, the Court of Appeals did not cite or discuss the Bridges, Pennekamp or Harney cases, nor did it display an awareness of the standards enunciated in those cases to support a finding of clear and present danger.12 It simply adopted as conclusions of law the allegations made in the contempt citation. The court did not indicate in any manner how the publications interfered with the grand jury's investigation, or with the administration of justice. Unlike those cases in which elaborate findings have been made to support such a conclusion,13 this record is barren of such findings. The prosecution called no witnesses to show that the functioning of the jury was in any way disturbed; no showing was made that the members of the grand jury, upon reading the petitioner's comments in the newspapers, felt unable or unwilling to complete their assigned task because petitioner 'interfered' with its completion.14 There is nothing in the record to indicate that the investigation was not ultimately successful or, if it was not, that the petitioner's conduct was responsible for its failure. And to the extent that the conviction on the third count was upheld because petitioner's last statement presented a clear and present danger to the contempt hearing, it is indeed novel that under the circumstances of this case the petitioner might be responsible for a substantial interference with his contempt hearing because he had made public his defense to the charges made against him. What interference to petitioner's hearing or what harm this assertion might inflict on the administration of justice is not stated in the opinion. Nor is there any evidence of either in the record.15
23
Thus we have simply been told, as a matter of law without factual support, that if a State is unable to punish persons for expressing their views on matters of great public importance when those matters are being considered in an investigation by the grand jury, a clear and present danger to the administration of justice will be created. We find no such danger in the record before us. The type of 'danger' evidenced by the record is precisely one of the types of activity envisioned by the Founders in presenting the First Amendment for ratification. 'Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political * * * truth.' Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 740, 84 L.Ed. 1093. In Thornhill the Court also reiterated the thinking of the Founders when it said that a broad conception of the First Amendment is necessary
24
'to supply the public need for information and education with respect to the significant issues of the times. (footnote omitted.) * * * Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.' Id., at 102, 60 S.Ct. at 744.16
25
Men are entitled to speak as they please on matters vital to them; errors in judgment or unsubstantiated opinions may be exposed, of course, but not through punishment for contempt for the expression. Under our system of government, counterargument and education are the weapons available to expose these matters, not abridgment of the rights of free speech and assembly. Cf. Mr. Justice Brandeis, concurring in Whitney v. California, 274 U.S. 357, 378, 47 S.Ct. 641, 649, 71 L.Ed. 1095. Hence, in the absence of some other showing of a substantive evil actually designed to impede the course of justice in justification of the exercise of the contempt power to silence the petitioner, his utterances are entitled to be protected.
26
The respondent attempts to distinguish this case from Bridges by offering, as support for the Georgia court's conclusion that the petitioner's conduct presented a clear and present danger to the administration of justice, the fact that here there was an alleged interference with a grand jury and not an attempt to influence or coerce a judge. In the circumstances of this case, we find this argument unpersuasive.
27
First, it is important to emphasize that this case does not represent a situation where an individual is on trial; there was no 'judicial proceeding pending' in the sense that prejudice might result to one litigant or the other by ill-considered misconduct aimed at influencing the outcome of a trial or a grand jury proceeding. Compare Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757; Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749; and Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543. Moreover, we need not pause here to consider the variant factors that would be present in a case involving a petit jury. Neither Bridges, Pennekamp nor Harney involved a trial by jury. In Bridges it was noted that 'trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper' (314 U.S., at 271, 62 S.Ct. at 197), and of course, the limitations on free speech assume a different proportion when expression is directed toward a trial as compared to a grand jury investigation. Rather, the grand jury here was conducting a general investigation into a matter touching each member of the community.
28
Historically, this body has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.17 Particularly in matters of local political corruption and investigations is it important that freedom of communication be kept open and that the real issues not become obscured to the grand jury. It cannot effectively operate in a vacuum. It has been said that the 'ancestors of our 'grand jurors' are from the first neither exactly accusers, nor exactly witnesses; they are to give voice to common repute.' 2 Pollock and Maitland, History of the English Law (2d ed. 1909), 642. The necessity to society of an independent and informed grand jury becomes readily apparent in the context of the present case. For here a panel of judges, themselves elected officers and charged under state law with the responsibility of instructing a grand jury to investigate political corruption, have exercised the contempt power to hold in contempt another elected representative of the people for publishing views honestly held and contrary to those contained in the charge. And, an effort by the petitioner to prove the truth of his allegations was rejected, the court holding irrelevant the truth or falsity of the facts and opinions expressed in the publications. 103 Ga.App. 305, 321, 119 S.E.2d 261, 273. If the petitioner could be silenced in this manner, the problem to the people in the State of Georgia and indeed in all the States becomes evident.
29
The administration of the law is not the problem of the judge or prosecuting attorney alone, but necessitates the active cooperation of an enlightened public. Nothing is to be gained by an attitude on the part of the citizenry of civic irresponsibility and apathy in voicing their sentiments on community problems. The petitioner's attack on the charge to the grand jury would have been likely to have an impeding influence on the outcome of the investigation only if the charge was so manifestly unjust that it could not stand inspection.18 In this sense discussion serves as a corrective force to political, economic and other influences which are inevitably present in matters of grave importance. The charge given to the jury indicated that the motivation for it was founded on rumor, but that the situation had existed for several years. Yet the charge was directed primarily against one group in the community and was given at the height of the highly important Democratic primary, in which, because of their elected positions, both the judges and the petitioner were interested personally and apart from their official status. The First Amendment envisions that persons be given the opportunity to inform the community of both sides of the issue under such circumstances. That this privilege should not lightly be curtailed is ably expressed in a passage from Judge Cooley's 2 Constitutional Limitations (8th ed. 1927) 885, where he stated that the purpose of the First Amendment includes the need:
30
'* * * to protect parties in the free publication of matters of public concern, to secure their right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them.'
31
Moreover, it is difficult to imagine how the voting problem may be alleviated by an abridgment of talk and comment regarding its solution. This problem is important not only to an individual or some isolated group or to individual litigants in a particular lawsuit, but affects the entire Nation. When the grand jury is performing its investigatory function into a general problem area, without specific regard to indicating a particular individual, society's interest is best served by a thorough and extensive investigation, and a greater degree of disinterestedness and impartiality is assured by allowing free expenssion of contrary opinion. Consistent suppression of discussion likely to affect pending investigations would mean that some continuing public grievances could never be discussed at all, or at least not at the moment when public discussion is most needed. The conviction here produces its 'restrictive results at the precise time when public interest in the matters discussed would naturally be at its height,' and '(n)o suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expression.' Bridges v. California, supra, 314 U.S. at 268, 269, 62 S.Ct. at 196. Thus, in the absence of any showing of an actual interference with the undertakings of the grand jury, this record lacks persuasion in illustrating the serious degree of harm to the administration of law necessary to justify exercise of the contempt power. Compare Craig v. Harney, 331 U.S. 367, 376, 378, 67 S.Ct. 1249, 1255, 1256, 91 L.Ed. 1546; Pennekamp v. Florida, 328 U.S. 331, 349—350, 66 S.Ct. 1029, 1038—1039, 90 L.Ed. 1295.
32
Finally, we are told by the respondent that, because the petitioner is sheriff of Bibb County and thereby owes a special duty and responsibility to the court and its judges, his right to freedom of expression must be more severely curtailed than that of an average citizen. Under the circumstances of this case, this argument must be rejected.
33
First, although we do not rely on the point exclusively, we noted at the outset of this opinion that there was no finding by the trial court that the petitioner issued the statements in his capacity as sheriff; in fact, the only evidence in the record on this point is the petitioner's allegation in his response, accepted as evidence by the trial court and uncontroverted by the respondent, that the statements were distributed by petitioner as a private citizen. Nowhere in the record, including the contempt citation as twice amended, can we find one word indicating that the prosecution relied on the fact that petitioner was sheriff to show a more substantial likelihood that his conduct would disrupt the administration of justice.19 The opinion of the Court of Appeals does not articulate any specific reliance on this fact,20 and responses to our inquiries on this subject during oral arguments were not illuminating. Moreover, the two counts before us were based on out-of-court publications which the petitioner signed without reference to his official capacity. Only in the letter sent directly to the grand jury room did the petitioner indicate in the statement that he was sheriff, and the Court of Appeals held that this statement did not present a clear and present danger to the administration of the law. In the light of this finding it is difficult to understand how the fact that the petitioner was sheriff of the county can be considered significant as to his news releases.
34
However, assuming that the Court of Appeals did consider to be significant the fact that petitioner was a sheriff, we do not believe this fact provides any basis for cultailing his right of free speech. There is no evidence that the publications interfered with the performance of his duties as sheriff or with his duties, if any he had, in connection with the grand jury's investigation. We are not dealing with a situation where a sheriff refuses to issue summonses or to maintain order in the court building; nor, so far as the record shows, did the petitioner do any act which might present a substantive harm to the jury's solution of the problem placed before it. We are dealing here only with public expression.
35
The petitioner was an elected official and had the right to enter the field of political controversy, particularly where his political life was at stake.21 Cf. In re Sawyer, 360 U.S. 622, 79 S.Ct. 1376, 3 L.Ed.2d 1473. The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.
36
Our examination of the content of petitioner's statements and the circumstances under which they were published leads us the conclude that they did not present a danger to the administration of justice that should vitiate his freedom to express his opinions in the manner chosen.
37
The judgment is reversed.
38
Mr. Justice FRANKFURTER took no part in the decision of this case.
39
Mr. Justice WHITE took no part in the consideration or decision of this case.
40
Mr. Justice HARLAN, whom Mr. Justice CLARK joins, dissenting.
41
Whether or not the clear and present danger doctrine of Bridges v. California, 314 U.S. 252, 260—263, 271, 62 S.Ct. 190, 192—194, 197, 86 L.Ed. 192, should be deemed to limit a state or federal court's use of the contempt power when employed against a member of its official entourage who has scandalized the conduct of the court in relation to and during the course of a pending judicial proceeding is a question which I need not reach in this case. For even under the most expansive view of Bridges and its off-shoots the contempt judgment against this sheriff should be upheld.
42
Over fifty years ago Mr. Justice Holmes wrote: 'The theory of our (judicial) system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.' Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879. For this reason this Court has repeatedly held that a criminal conviction based on the verdict of jurors influenced by extrajudicial statements of the case cannot stand consistently with due process of law. E.g., Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751. But invalidation of a proceeding so infected is not the only remedy available to combat interference with judicial processes; so to hold would confer a right to frustrate those processes with impunity. And so it is that this Court has uniformly upheld the power of courts to protect themselves by citations for contempt from improper influence upon proceedings before them. Sustaining this power against a claim of freedom of speech in Patterson v. Colorado, supra, 205 U.S., at 463, 27 S.Ct. at 558, 51 L.Ed. 879, Mr. Justice Holmes wrote: 'When a case is finished courts are subject to the same criticism as other people; but the propriety and necessity of preventing interference with the course of justice by premature statement, argument, or intimidation hardly can be denied.' The right of free speech, strong though it be, is not absolute; when the right to speak conflicts with the right to an impartial judicial proceeding, an accommodation must be made to preserve the essence of both. Thus in Bridges v. California, supra, 314 U.S. at 271, 62 S.Ct. at 197, the Court said:
43
'The very word 'trial' connotes decisions on the evidence and arguments properly advanced in open court. Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper. * * * We must therefore turn to the particular utterances here in question and the circumstances of their publication to determine to what extent the substantive evil of unfair administration of justice was a likely consequence, and whether the degree of likelihood was sufficient to justify summary punishment.'
44
And again in Pennekamp v. Florida, 328 U.S. 331, 347, 66 S.Ct. 1029, 1037, 90 L.Ed. 1295: 'Courts must have power to protect the interests of prisoners and litigants before them from unseemly efforts to pervert judicial action.' See Craig v. Harney, 331 U.S. 367, 372—373, 67 S.Ct. 1249, 1252—1253, 91 L.Ed. 1546.
45
The Court professes to recognize these principles. It holds nevertheless that the contempt sanction cannot be applied in this case, arguing both that 'the limitations on free speech assume a different proportion when expression is directed toward a trial as compared to a grand jury investigation,' 370 U.S., p. 390, 82 S.Ct., p. 1373, and that the findings of clear and present danger and unsupported by the record. I cannot agree with either proposition.
I.
46
The grand jury is an integral part of the judicial process, Levine v. United States, 362 U.S. 610, 617, 80 S.Ct. 1038, 1043, 4 L.Ed.2d 989; Gates v. State, 73 Ga.App. 824, 826, 38 S.E.2d 311, 312; contempt sanctions are available to protect its functions. Levine v. United States, supra. Congress has recognized the need for safeguarding the deliberations of federal grand juries by making it a crime to attempt to influence a federal grand juror by extrajudicial communication.1 Even assuming that a State may constitutionally permit a grand jury, unlike a petit jury, to be influenced by extrajudicial statements, a question explicitly left open in Beck v. Washington, 369 U.S. 541, 546, 82 S.Ct. 955, 958, 8 L.Ed.2d 98, it certainly does not compel them to that course.
47
The Court does not dispute this. But, says the Court, no individual is on trial here; and 'When the grand jury is performing its investigatory function into a general problem area, without specific regard to indicting a particular individual, society's interest is best served by a thorough and extensive investigation, and a greater degree of disinterestedness and impartiality is assured by allowing free expression of contrary opinion.' 370 U.S., p. 392, 82 S.Ct., p. 1374. This, however, is surely a policy decision with respect to which a State may legitimately take a different view. The Court does not suggest that Georgia was attempting to use the mantle of judicial proceedings in order to insulate the transaction of nonjudicial business from criticism; investigation is a traditional function of the grand jury. I see no reason why the State cannot determine for itself what shall and what shall not be considered by grand jurors in conducting any of their traditional tasks. Moreover, it is not the fact that individual rights were not at stake in this proceeding. The judge charged the jury:
48
'if there is sufficient evidence of unlawful acts, then all parties participating, white and colored, candidates or non-candidates, should be indicted by this Grand Jury so that the guilty parties, if there are any, may be brought to trial.'
49
That petitioner's statements would tend to aid rather than to prejudice implicated individuals was equally true in Bridges v. California, supra, but was rightly afforded no significance; the State as well as the individual is entitled to a day in court.
50
It is not suggested that in declaring that grand jurors shall be protected from improper 'outside' influence Georgia has improperly departed from her own prior law. Nor could it well be maintained that the Georgia courts undertook to judge petitioner's conduct in terms of something other than the Bridges clear and present danger standard. The Georgia Court of Appeals held:
51
'With respect to the question as to whether these acts of the defendant constituted a clear, present, or imminent danger or serious threat to the administration of justice, it is to be noted that the citation as amended so charges, the court below has by its conviction so found, and the evidence supports the finding.' 103 Ga.App. at 321, 119 S.E.2d at 273.
52
To be sure this holding cannot preclude this Court from examining the evidence for itself. But this does not mean that it may do so with the same latitude as if it were sitting as a state court of review. The Court's functions are exhausted once it is determined that federal constitutional standards have been met. It is of course not incumbent on the state courts to deal in detail with the facts of this Court's earlier decisions in order to 'display an awareness of the standards enunciated in those cases,' or to make 'elaborate findings' to demonstrate 'how the publications interfered with the grand jury's investigation.' 370 U.S., pp. 386—387, 82 S.Ct., p. 1371.
53
Accepting as I do for present purposes the Bridges test, this conviction must be upheld if the record supports the inference of clear and present danger.
II.
54
That test is amply met here. Petitioner, a public official connected with the court, accused, from his office in the courthouse, the Superior Court judges of fomenting race hatred; of misusing the criminal law to persecute and to intimidate political and racial minorities; of political naivete , racial prejudice, and hypocrisy. He compared the calling of the grand jury to the activities of the Ku Klux Klan. He made an undisguised effort to influence the outcome of the investigation by declaring that only the politically naive could believe Bibb County Negroes might be guilty of selling votes. It was stipulated that both of petitioner's formal statements were read by the grand jurors during the course of their investigation.
55
The Court considers this evidence insufficient because there was no showing of 'an actual interference with the undertakings of the jury,' that the jurors 'felt unable or unwilling to complete their assigned task because petitioner 'interfered' with its completion,' that 'the investigation was not ultimately successful or, if it was not, that the petitioner's conduct was responsible for its failure.' 370 U.S., p. 387, 82 S.Ct., p. 1371. Surely the Court cannot mean that attempts to influence judicial proceedings are punishable only if they are successful. Speech creating sufficient danger of an evil which the State may prevent may certainly be punished regardless of whether that evil materializes. See Feiner v. New York, 340 U.S. 315, 320—321, 71 S.Ct. 303, 306, 95 L.Ed. 267. Indeed, the test suggested by the court is even more stringent than that which it applies in determining whether a conviction should be set aside because of prejudicial 'outside' statements reaching a trial jury. In such cases, although the question is whether the rights of the accused have been infringed rather than whether there has been a clear and present danger of their infringement, it is necessary only to show a substantial likelihood that the verdict was affected, and it is no answer that each juror expresses his belief that he remains able to be fair and impartial. Irvin v. Dowd, supra, 366 U.S. at 728, 81 S.Ct. at 1645, 6 L.Ed.2d 751; cf. Marshall v. United States, 360 U.S. 310, 312—313, 79 S.Ct. 1171, 1172, 1173, 3 L.Ed.2d 1250; Spano v. New York, 360 U.S. 315, 324, 79 S.Ct. 1202, 1207, 3 L.Ed.2d 1265. The test for punishing attempts to influence a grand or petit jury should be less rather than more stringent.
56
I cannot agree with the Court that petitioner's statements would have been likely to affect the outcome of the investigation 'only if the charge was so manifestly unjust that it could not stand inspection.' 370 U.S., p. 391, 82 S.Ct., p. 1373. This is to discredit the persuasiveness of argument, which the Court purports to value so highly. Any expression of opinion on the merits of a pending judicial proceeding is likely to have an impact on deliberations. In this instance that likelihood was increased by two factors which were not present in Bridges, Pennekamp, or Craig, in which the Court held the evidence insufficient to show clear and present danger. None of those cases involved statements by officers of the court; and all concerned statements whose alleged interference was with the deliberations of a judge rather than a jury. Georgia law requires the sheriff to execute and return court processes and orders and to preserve order during sessions of the courts. Ga.Code Ann., 1959, § 24—2813. Petitioner was thus a law-enforcement officer, whose office was in the very courthouse where the grand jury was sitting. Whether or not he issued the statements 'in his capacity as sheriff,' and whether or not the contempt citation alleged it, his words assumed an overtone of official quality and authority that lent them weight beyond those of an ordinary citizen.
57
Of equal if not greater importance is the fact that petitioner's statements were calculated to influence, not a judge chosen because of his independence, integrity, and courage and trained by experience and the discipline of law to deal only with evidence properly before him, but a grand jury of laymen chosen to serve for a limited term from the general population of Bibb County. It cannot be assumed with grand jurors, as it has been with judges, Craig v. Harney, supra, 331 U.S. at 376, 67 S.Ct. at 1255, 91 L.Ed. 1546, that they are all 'men of fortitude, able to thrive in a hardy climate.' What may not seriously endanger the independent deliberations of a judge may well jeopardize those of a grand or petit jury. See Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 920, 70 S.Ct. 252, 255, 94 L.Ed. 562 (opinion of Frankfurter, J.).
58
Moreover, the statements themselves were of such a nature as to distinguish this case from Bridges, Pennekamp, and Craig. It cannot be said here, as it was in Bridges, that petitioner's charges of racial bias, hypocrisy, political intimidation, persecution, and political naivete , and his comparison of the judges with the Ku Klux Klan, 'did no more than threaten future adverse criticism which was reasonably to be expected anyway,' or that 'if there was electricity in the atmosphere, it was generated by the facts; the charge added by the * * * (petitioner's statement) can be dismissed as negligible.' 314 U.S. at 273, 278, 62 S.Ct. at 201. The sheriff's remarks were not, as in Pennekamp, 328 U.S., at 348, 66 S.Ct. at 1038, 90 L.Ed. 1295, general criticisms with respect to rulings already made, but specific attacks directed toward the disposition of the pending investigation. They cannot be characterized, as in Craig, 331 U.S., at 374—375, 67 S.Ct. at 1254, 91 L.Ed. 1546, as merely unfair reports of the activities of others; unlike the editorial in that case, id., at 376—377, 67 S.Ct. at 1255, petitioner's criticisms went squarely to the merits of the investigation and impugned as well the motives and honesty of those conducting it. I do not understand how it can be denied that a grand juror, reading in the course of this investigation the sheriff's statement that the judges who instructed the grand jury to undertake it were racial bigots making discriminatory use of the laws for purposes of political repression, and that the charges themselves were incredibly false, might well be influenced in his deliberations.
59
The petitioner's last formal statement, which he and the Court characterize as a 'defense,' was also properly found to constitute a contempt. Defenses, like charges, should be presented to a court judicially and not through the public press. But in fact the affirmance of petitioner's conviction was not based at all on the allegation that this defense interfered with his trial for contempt. Rather, the Court of Appeals held that this further statement had been made 'in an apparent effort to hamper the grand jury which was still considering the charges given it by the court.' 103 Ga.App. at 321, 119 S.E.2d at 273. This conclusion, based on the repetition of a number of petitioner's previous statements and the allegation that they were true,2 was clearly justified.
60
Finally, petitioner's case is not saved by the fact that both he and the judges he attacked are elected officials, or by the fact that the statement concerned an issue of some plitical moment. There was ample opportunity to bring the judges' performance to the voters after the investigation was closed. 'Political interest' cannot be used as an excuse for affecting the result of a judicial inquiry.
61
I would affirm.
1
The Georgia Legislature has provided that it shall be a misdemeanor for any person to '(b)uy or sell, or offer to buy or sell, a vote, or (to) * * * be in any way concerned in buying or selling, or contribute money or any other thing of value for the purpose of buying a vote at any election * * *.' Ga.Code Ann., § 34—9907. See also Ga.Code Ann., § 34—1907, included in the court's charge.
2
More fully, the charge, in relevant part, contained the following:
'Gentlemen of the Grand Jury:
'The special instructions now about to be given to you were determined upon and formulated by all of the Judges of this Court en banc after joint consultations and are fully sanctioned by all the Judges.
'A situation has arisen in Bibb County over the last few years which this Court feels should be thoroughly and completely investigated by the Grand Jury. * * *
'In election after election where no racial issues are involved, and where there are no other issues involved which could possibly cause any particular group to be honestly concerned about supporting or opposing any particular candidate, we find what appears an inane and inexpicable pattern of Negro bloc voting.
'Now there is an answer to the existing situation which should be brought to light so that people of this community may understand what is going on in some of our elections, and do something about it. The people are entitled to know how one candidate or another is able to gather to himself thousands of Negro votes in bloc where there is no apparent reason for it.
'This Grand Jury is hereby instructed by the Court to investigate and examine into the facts of every election of every kind in this County for the past several years in which bloc voting is apparent. Although there are many intelligent and independent voters among the colored people who deplore this situation, it is nevertheless obvious that about 80% to 85% of the Negro voters engage in bloc voting. * * *
'* * * (T)he matter you are directed to investigate is the persistent rumors and accusations concerning the methods used in the solicita-
tion of the Negro vote and the alleged bartering of the bloc vote. There are accusations that candidates for public office have paid large sums of money to certain leaders of the Negro in an effort to gain their favor and get the Negro vote. There are accusations that candidates and their supporters have paid, and these leaders of the Negroes have accepted, money for the purpose of influencing the Negro people to bloc vote for certain candidates. * * *
'These rumors being circulated, and about which you have been charged, are either true or false and it is the duty of this Grand Jury to determine wherein the truth lies.
'Some questions which this Jury should have answered in your investigation of elections are: Was the Negro vote delivered in bloc to any candidate or candidates? If so, who delivered it and how was it done? What contact did the candidates or their supporters have with the Negro group or its leaders? What money was involved, if any? How was the money used? What workers were employed? What promises did the candidate make, if any, in order to obtain the bloc vote?
'Now, gentlemen, it is your duty to develop the facts of this situation and if there is sufficient evidence of unlawful acts, then all parties participating, white and colored, candidates or non-candidates, should be indicted by this Grand Jury so that the guilty parties, if there are any, may be brought to trial.
'Furthermore, it is your duty to bring to light those practices which, while not technically in violation of any law, are yet so immoral or corrupt as to be destructive of the purposes of our system of elections. It is further your right and duty to determine what additional laws, or amendments to existing laws, are needed to adequately deal with the situation with which we are faced and to recommend enactment thereof by the Legislature.
'The enormity of the task assigned you by these instructions is recognized, but surely all good citizens, both public and private, who stand for good government and an honest elective system will be willing to come before this Grand Jury and disclose every fact concerning the matters about which you are being instructed.'
3
The charge that was delivered to the grand jury was prepared by the three judges of the Bibb County Superior Court, and was delivered by one of them. Another one of the three presided at petitioner's contempt hearing.
4
Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 740, 84 L.Ed. 1093; Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155; De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; Near v. Minnesota, 283 U.S. 697, 707, 51 S.Ct. 625, 627, 75 L.Ed. 1357; Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138.
5
Specifically, the Court, after a thorough review of the history behind both the exercise of the contempt power and the adoption of the First Amendment, rejected the idea that the interests were to be accommodated by applying the common law of England at the time the Constitution was adopted. Bridges v. California, 314 U.S. 252, 263—268, 62 S.Ct. 190, 194—196, 86 L.Ed. 192. For source materials on this subject, see Chafee, Free Speech in the United States (1941), c. 1; Fox, The History of Contempt of Court (1927), passim; Stansbury, Trial of James H. Peck (1833), passim; Thayer, Legal Control of the Press (3d ed. 1956), 483 et seq. See also Deutsch, Liberty of Expression and Contempt of Court, 27 Minn.L.Rev. 296 (1943); Nelles and King, Contempt by Publication in the United States, 28 Col.L.Rev. 401, 525 (1928).
6
The Court went on to say that the clear and present danger standard does not 'purport to mark the furthermost constitutional boundaries of protected expression * * * (and that it does) no more than recognize a minimum compulsion of the Bill of Rights.' Bridges v. California, supra, at 263, 62 S.Ct. at 194.
7
In Pennekamp the Court concluded that 'the danger under * * * (the) record to fair judicial administration has not the clearness and immediacy necessary to close the door of permissible public comment. When that door is closed, it closes all doors behind it.' 328 U.S., at 350, 66 S.Ct. at 1039.
8
In none of these cases, as is also true of the one presently under review, did the Court find it necessary to determine the full power of the State to protect the administration of justice by use of the contempt power. See Craig v. Harney, 331 U.S., at 373, 67 S.Ct. at 1253, 91 L.Ed. 1546.
9
Atlanta Newspapers, Inc., v. State, 216 Ga. 399, 116 S.E.2d 580; McGill v. State, 209 Ga. 500, 74 S.E.2d 78; Bradley v. State, 111 Ga. 168, 36 S.E. 630, 50 L.R.A. 691. But see Townsend v. State, 54 Ga.App. 627, 188 S.E. 560.
10
The state legislature has enacted a statute designed to limit the courts in that State in the exercise of the contempt power. Ga.Code Ann., § 24—105, provides:
'Powers of courts to punish for contempt.—The powers of the several courts to issue attachments and inflict summary punishment for contempt of court shall extend only to cases of misbehavior of any person or persons in the presence of said courts or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any officer of said courts, party, juror, witness, or other person or persons to any lawful writ, process, order, rule, decree, or command of the said courts * * *.'
Compare the legislative determination made by the State of California discussed briefly in Bridges v. California, supra, 314 U.S. 192 at 260—261, n. 3, 62 S.Ct. at 192.
11
When the claim is that such a right has been abridged by a state court, 'it is incumbent upon us to analyze the facts in order that the appropriate enforcement of the federal right may be assured.' Norris v. Alabama, 294 U.S. 587, 590, 55 S.Ct. 579, 580, 79 L.Ed. 1074. See Hooven & Allison Co. v. Evatt, 324 U.S. 652, 659, 65 S.Ct. 870, 874, 89 L.Ed. 1252; Truax v. Corrigan, 257 U.S. 312, 325, 42 S.Ct. 124, 127, 66 L.Ed. 254.
12
Compare the findings of the Court of Criminal Appeals of Texas in Ex parte Craig, 150 Tex.Cr. 598, 193 S.W.2d 178, 204 S.W.2d 842. See this Court's discussion of these findings and of the conclusion drawn by the Texas court on the basis of those findings, Craig v. Harney, 331 U.S. 367, 370—371, 385—389, 67 S.Ct. 1249, 1251—1252, 1259, 1260, 91 L.Ed. 1546.
13
See, e.g., Toledo Newspaper Co. v. United States, 247 U.S. 402, 414—416, 38 S.Ct. 560, 562, 563, 62 L.Ed. 1186.
14
Georgia law presumably permits grand jurors to so testify: 'Grand jurors shall disclose everything which occurs in their service whenever it becomes necessary in any court of record in this State.' Ga. Code Ann., § 59—302.
15
Compare Toledo Newspaper Co. v. United States, supra, note 13, 247 U.S. at 425, 38 S.Ct. at 566, 62 L.Ed. 1186 (Holmes, J., dissenting).
16
See also Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117. See generally 2 Bancroft, History of the United States (1885), 261.
17
Orfield, Criminal Procedure from Arrest to Appeal (1947), 144—146. See Hale v. Henkel, 201 U.S. 43, 59—66, 26 S.Ct. 370, 372 375, 50 L.Ed. 652. See generally Note, The Grand Jury as an Investigatory Body, 74 Harv.L.Rev. 590 (1961).
18
Compare Mr. Justice Holmes, dissenting in Gitlow v. New York, 268 U.S. 652, 673, 45 S.Ct. 625, 632, 69 L.Ed. 1138. See also Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095; Pennekamp v. Florida, 328 U.S. 331, 370, 66 S.Ct. 1029, 1048, 90 L.Ed. 1295 (concurring opinion) ('To talk of a clear and present danger arising out of (every) * * * criticism is idle unless the criticism makes it impossible in a very real sense for a court to carry on the administration of justice').
19
The amended citation, in relevant part, alleged:
'The Respondent, James I. Wood, Sheriff of Bibb County, is a full-time employee of the County of Bibb and is paid a salary for his services as such officer. Respondent is an officer of the Bibb Superior Court.'
There is no allegation that because he was sheriff his conduct was more likely to cause a substantive evil than would the same conduct by a private citizen.
20
The decision of the Court of Appeals, affirming the overruling of petitioner's demurrer to the effect that the allegation quoted in note 19 was irrelevant and should be stricken, is of no weight in light of the trial court's failure to make a finding of fact either that the statements were issued in petitioner's official capacity or that the fact he was sheriff was relevant.
21
Petitioner was not a civil servant, but an elected official, and hence this is not a case like United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754, in which this Court held that congress has the power to circumscribe the political activities of federal employees in the career public service.
1
'Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined not more than $1,000 or imprisoned not more than six months, or both.
'Nothing in this section shall be construed to prohibit the communication of a request to appear before the grand jury.' 18 U.S.C. § 1504, 18 U.S.C.A. § 1504.
2
Petitioner's last statement was as follows:
'My defense will be simply that I have spoken the truth. Anyone who will read, point by point, my statements concerning the Judges' charge will find those statements true.
'The Judges were wrong to use 'Negro Bloc Voting', the campaign slogan of Talmadge, and similar phrases as language with which to instruct a Grand Jury. When I stated 'It is hocking to find a Judge charging a Grand Jury in the style and language of a race baiting candidate for political office' was it contempt of court or was I pointing out the truth?
'When I said 'If anyone in this community be free of racial prejudice, it should be our Judges' was this contempt of Court or was I stating a truth?
'The Judges were morally wrong to suddenly order a Grand Jury to single out the Negro political leaders for indictments under a forgotten law which even judges have violated. When I said 'It further seems that (sic) the height of hypocrisy to dust off an old blue law that has been ignored for fifty years and suddenly order its rigid enforcement against a minority group of voters' was this contempt of Court or was I speaking the truth?
'The Judges were professionally wrong in involving the Court in political affairs. I stated that the Judges' charges 'threaten political persecution carried out under the guise of law enforcement' and further that 'this action appears either as a crude attempt at judicial intimidation of Negro voters and leaders, or, at best, as agitation for a 'Negro Vote' issues (sic) in local politics.' Can anyone read the Judges' instructions for indictment under the old 'influencing voters' law and honestly say no political persecution is threatened when almost all office holders have violated this law? Can anyone read the long charge reciting political rumors and charges against Negro leaders and voters and honestly say there is no appearance of any attempt at intimidation of Negro voters and leaders? Likewise can anyone deny such a charge and such an investigation in the midst of local political races agitates a 'Negro Vote' issue?
'If the Court will permit I believe that many thousands of witnesses would testify in my behalf that they drew the same conclusions as I from the language used by the Judges in their charge.
'Is it just, or even fair play, for the Judges to say they intended no threat, no intimidation, no agitation and therefore it is contempt of court to publicly state honest, sincere conclusions and practical effects caused by the language of the charge.
'Two wrongs do not make a right, and the Judges are wrong to cite me for contempt. I cannot view the Judges' action in any light except to believe I am to be prosecuted for daring to criticise the Judges and for speaking the truth.
'I had hoped that the entire ill-will and race agitation stirred up by the Judges' charge would be permitted to die after a face-saving presentment by the Courts' Grand Jury. To this end I remained silent despite grossly false and discrediting conclusions presented. Now it appears that the Judges want the satisfaction of find (sic) me in contempt of court, but if they so do, they are in effect saying that the court has done no wrong because the court itself finds it has done no wrong.
'/s/ James I. Wood'
| 23
|
370 U.S. 607
82 S.Ct. 1297
8 L.Ed.2d 720
CENTRAL RAILROAD COMPANY OF PENNSYLVANIA, Appellant,v.COMMONWEALTH OF PENNSYLVANIA.
No. 400.
Argued March 20, 1962.
Decided June 25, 1962.
Roy J. Keefer, Harrisburg, Pa., for appellant.
George W. Keitel, Harrisburg, Pa., for appellee.
Mr. Justice HARLAN delivered the opinion of the Court.
1
In this case we must decide whether the Commonwealth of Pennsylvania may, consistently with the Commerce Clause and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution of the United States, impose an annual property tax on the total value of freight cars owned by the appellant, a Pennsylvania corporation, despite the fact that a considerable number of such cars spend a substantial portion of the tax year on the lines of other railroads located outside the State. The Supreme Court of Pennsylvania upheld the application of the State's Capital Stock Tax, Purdon's Pa.Stat.Ann., 1949, Tit. 72, §§ 1871, 1901, to the full value of all appellant's freight cars.1 403 Pa. 419, 169 A.2d 878. We postponed consideration of the question of jurisdiction to the hearing on the merits, Central R. Co. of Pa. v. State of Pa., 368 U.S. 912, 82 S.Ct. 195, 7 L.Ed.2d 129, and now find that the appeal is appropriately before us under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). E.g., Standard Oil Co. v. Peck, 342 U.S. 382, 72 S.Ct. 309, 96 L.Ed. 427.
2
We take the facts pertinent to decision from a stipulation submitted by the parties to the trial court. The appellant is a Pennsylvania corporation authorized to operate a railroad only within the State. It has not been licensed to do business elsewhere. The company's track runs from the anthracite coal region in Pennsylvania to the Pennsylvania-New Jersey border, at Easton, where it connects with the lines of the Central Railroad Company of New Jersey (hereinafter CNJ), a New Jersey corporation which owns all the outstanding shares of appellant's stock.
3
In 1951, the year for which the tax was assessed, the appellant owned 3,074 freight cars which were put to use in ordinary transport operations in three ways: (1) by the appellant on its own tracks; (2) by CNJ on that company's tracks in New Jersey; (3) by other unaffiliated railroads on their own lines in various parts of the country. CNJ's use of appellant's cars was pursuant to operating agreements under which CNJ was obliged to pay a daily rental equal to the then-effective rate prescribed by the Association of American Railroads. In order to facilitate interstate transportation by the interchange of equipment among carriers, as prescribed by 49 U.S.C. § 1, pars. (4), (10), (12), 49 U.S.C.A. § 1, pars. (4, 10, 12), the members of the Association, including the appellant, had entered into a separate 'Car Service and Per Diem Agreement' under which each subscriber was authorized to use on its own lines the available freight cars of other subscribers at the established per diem rental. Consequently, during 1951 many of the appellant's freight cars were also used by other railroads on lines outside Pennsylvania.
4
Appellant contended in the state courts, as it does here, that in computing its Pennsylvania capital stock tax, which is measured by the value of such property as is not exempt from taxation (note 1, supra), it was constitutionally entitled to deduct from the value of its taxable assets a proportional share reflecting the time spent by its freight cars outside Pennsylvania. In support of this claim appellant offered a statistical summary of the use of its freight cars during 1951, seeking to prove that a daily average of more than 1,659 of its 3,074 cars were located on the lines of railroads (including CNJ) which owned no track in Pennsylvania.2
5
It also claimed that a daily average of approximately 1,056 other cars had been used by railroads having lines both within and without Pennsylvania. As to such cars, appellant sought to allocate to Pennsylvania only such portions of their value as the combined ratio of road miles of each user-railroad's tracks within Pennsylvania bore to its total road mileage throughout the United States.3
6
These claims were disallowed by the Pennsylvania Board of Finance and Revenue, by the Court of Common Pleas of Dauphin County, and by the Supreme Court of Pennsylvania.4 The state courts relied primarily on this Court's decision in New York Central & H.R.R. Co. v. Miller, 202 U.S. 584, 26 S.Ct. 714, 50 L.Ed. 1155, which upheld the constitutionality of a domiciliary State's ad valorem property tax levied upon the full value of a railroad's rolling stock, albeit 'some considerable proportion of the (railroad's) * * * cars always (was) absent from the state.' Id., at 595, 26 S.Ct. at 716.
I.
7
Since Miller this Court has decided numerous cases touching on the intricate problems of accommodating, under the Due Process and Commerce Clauses, the taxing powers of domiciliary and other States with respect to the instrumentalities of interstate commerce.5 None of these decisions has weakened the pivotal holding in Miller—that a railroad or other taxpayer owning rolling stock cannot avoid the imposition of its domicile's property tax on the full value of its assets merely by proving that some determinable fraction of its property was absent from the State for part of the tax year. This Court has consistently held that the State of domicile retains jurisdiction to tax tangible personal property which has 'not acquired an actual situs elsewhere.' Johnson Oil Refining Co. v. Oklahoma, 290 U.S. 158, 161, 54 S.Ct. 152, 153.
8
This is because a State casts no forbidden burden upon interstate commerce by subjecting its own corporations, though they be engaged in interstate transport, to nondiscriminatory property taxes. It is only 'multiple taxation of interstate operations,' Standard Oil Co. v. Peck, 342 U.S. 382, 385, 72 S.Ct. 309, 310, that offends the Commerce Clause. And obviously multiple taxation is possible only if there exists some jurisdiction, in addition to the domicile of the taxpayer, which may constitutionally impose an ad valorem tax.
9
Nor does the Due Process Clause confine the domiciliary State's taxing power to such proportion of the value of the property being taxed as is equal to the fraction of the tax year which the property spends within the State's borders. Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194, 26 S.Ct. 36, 50 L.Ed. 150, held only that the Due Process Clause prohibited ad valorem taxation by the owner's domicile of tangible personal property permanently located in some other State. Northwest Airlines, Inc., v. Minnesota, 322 U.S. 292, 64 S.Ct. 950, reaffirmed the principle established by earlier cases that tangible property for which no tax situs has been established elsewhere may be taxed to its full value by the owner's domicile. See New York Central R. Co. v. Miller, supra; Southern Pacific Co. v. Kentucky, 222 U.S. 63, 69, 32 S.Ct. 13, 15; Johnson Oil Refining Co. v. Oklahoma, supra. If such property has had insufficient contact with States other than the owner's domicile to render any one of these jurisdictions a 'tax situs,' it is surely appropriate to presume that the domicile is the only State affording the 'opportunities, benefits, or protection' which due process demands as a prerequisite for taxation. See Ott v. Mississippi Valley Barge Line Co., 336 U.S. 169, 174, 69 S.Ct. 432, 434.
10
Accordingly, the burden is on the taxpayer who contends that some portion of its total assets are beyond the reach of the taxing power of its domicile to prove that the same property may be similarly taxed in another jurisdiction. Cf. Dixie Ohio Express Co. v. State Revenue Comm'n, 306 U.S. 72, 59 S.Ct. 435, 83 L.Ed. 495.
11
The controlling question here is, therefore, the same as it was in Standard Oil Co. v. Peck, 342 U.S. 382, 72 S.Ct. 309, where the decision whether a state property tax might constitutionally be imposed on the full value of a domiciliary's moving assets turned on whether "a defined part of the domiciliary corpus"—there consisting of boats and barges traveling along inland waters 'could be taxed by the several states on an apportionment basis.' 342 U.S. at 384, 72 S.Ct. at 310.
12
Since the burden of proving an exemption is on the taxpayer who claims it, we must consider whether the stipulated facts show that some determinable portion of the value of the appellant's freight cars had acquired a tax situs in a jurisdiction other than Pennsylvania.
II.
13
With respect to the freight cars that had been used on the lines of CNJ during the taxable year, the stipulation establishes that they 'were run on fixed routes and regular schedules * * * over the lines of CNJ * * * in New Jersey.' Their habitual employment within the jurisdiction in this manner would assuredly support New Jersey's imposition of an apportioned ad valorem tax on the value of the appellant's fleet of freight cars. Marye v. Baltimore & Ohio R. Co., 127 U.S. 117, 123—124, 8 S.Ct. 1037, 1039, 32 L.Ed. 94; Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 18, 23, 11 S.Ct. 876, 878, 35 L.Ed. 613; Union Refrigerator Transit Co. v. Lynch, 177 U.S. 149, 20 S.Ct. 631, 44 L.Ed. 708; Johnson Oil Refining Co. v. Oklahoma, 290 U.S. 158, 162—163, 54 S.Ct. 152, 154; cf. Ott v. Mississippi Valley Barge Line Co., 336 U.S. 169, 69 S.Ct. 432; Braniff Airways, Inc. v. Nebraska Board of Equalization, 347 U.S. 590, 601, 74 S.Ct. 757, 764, 98 L.Ed. 967. Consequently, the daily average of freight cars located on the CNJ lines in the 1951 tax year, 158 in number, could not constitutionally be included in the computation of this Pennsylvania tax. In this respect, the Pennsylvania Supreme Court's decision (which is difficult to reconcile with its holding as to the similarly situated locomotives, note 4, supra) cannot be accepted.
III.
14
We conclude, however, that on the record before us Pennsylvania was constitutionally permitted to tax, at full value, the remainder of appellant's fleet of freight cars, including those used by other railroads under the Car Service and Per Diem Agreement of the Association of American Railroads. These were, in the language of the stipulation, 'regularly, habitually and/or continuously employed' in this manner, but they did not run 'on fixed routes and regular schedules' as did the cars used by CNJ.
15
Since the domiciliary State is precluded from imposing an ad valorem tax on any property to the extent that it could be taxed by another State, not merely on such property as is subjected to tax elsewhere, the validity of Pennsylvania's tax must be determined by considering whether the facts in the record disclose a possible tax situs in some other jurisdiction. Had the record shown that appellant's cars traveled through other States along fixed and regular routes, even if it were silent with respect to the length of time spent in each nondomiciliary State, it would doubtless follow that the State through which the regular traffic flowed could impose a property tax measured by some fair apportioning formula. Cf. Braniff Airways, Inc., v. Nebraska Board of Equalization, 347 U.S. 590, 74 S.Ct. 757. And this would render unconstitutional any domiciliary ad valorem tax at full value on property that could thus be taxes elsewhere. Standard Oil Co. v. Peck, supra, 342 U.S. at 384, 72 S.Ct. at 310.6
16
Alternatively a nondomiciliary tax situs may be acquired even if the rolling stock does not follow prescribed routes and schedules in its course through the nondomiciliary State. In American Refrigerator Transit Co. v. Hall, 174 U.S. 70, 19 S.Ct. 599, 43 L.Ed. 899, this Court sustained the constitutionality of a Colorado property tax on a stipulated average number of railroad cars that had been located within the territorial limits of Colorado during the tax year, although it was agreed by the parties that the cars 'never were run in said state in fixed numbers nor at regular times, nor as a regular part of particular trains.' Id., at 72, 19 S.Ct. at 600. Habitual employment within the State of a substantial number of cars, albeit on irregular routes, may constitute sufficient contact to establish a tax situs permitting taxation of the average number of cars so engaged.
17
On the record before us, however, we find no evidence, except as to the CNJ cars, of either regular routes through particular nondomiciliary States or habitual presence, though on irregular missions, in particular nondomiciliary States. It is not disputed that many of the railroads listed as owning no track within Pennsylvania do have lines in more than one State, but there is no way of knowing which, if any, of these States may have acquired taxing jurisdiction over some of appellant's freight cars. And even with respect to railroads whose lines do not extent beyond the borders of a single State, it cannot be determined whether their use of appellant's cars was habitual or merely sporadic.7 It must be obvious that the fraction of a railroad's lines located within Pennsylvania is wholly unilluminating as to the consistency with which that railroad used appellant's cars in some other State.
18
In short, except as to freight cars traveling on the lines of the CNJ, this record shows only that a determinable number of appellant's cars were employed outside the Commonwealth of Pennsylvania during the relevant tax year. But as this leaves at large the possibility of their having a nondomiciliary tax situs elsewhere, that showing does not suffice under our cases to exclude Pennsylvania from taxing such cars to their full value. Neither Union Refrigerator Transit Co. v. Kentucky, supra, nor Standard Oil Co. v. Peck, supra, is properly read to the contrary. In the former, the case was remanded for further proceedings 'not inconsistent' with the Court's opinion that the cars in question, 'so far as they were (permanently) located and employed in other states,' were not subject to the taxing power of the domiciliary State. 199 U.S. at 211, 26 S.Ct. at 41. In the latter, the existence of a tax situs in one or more nondomiciliary States sufficiently appeared from the record. Note 6, supra. To accept the proposition that a mere general showing of continuous use of movable property outside the domiciliary State is sufficient to exclude the taxing power of that State with respect to it, would surely result in an unsound rule; in instances where it was ultimately found that a tax situs existed in no other State such property would escape this kind of taxation entirely.
19
As we have shown there is nothing to the contrary in Standard Oil Co. v. Peck. Note 6, supra. And neither the Braniff nor Ott case points to a different conclusion. In Braniff the airplanes held subject to nondomiciliary taxation were shown by the record to have flown on fixed and regular routes. 347 U.S. at 600—601, 74 S.Ct. at 763, 764. In Ott the Court was careful to point out that 'the statute 'was intended to cover and actually covers here, an average portion of property permanently within the State—and by permanently is meant throughout the taxing year." 336 U.S. at 175, 69 S.Ct. at 435. (Emphasis added.) In the case before us it is impossible to tell, except as to cars of the lines of the CNJ, what the average number of cars was annually in any given State.
IV.
20
Finally, we think that the appellant's equal protection argument is insubstantial and that it was correctly rejected by the Pennsylvania Supreme Court. For purposes of this tax, Pennsylvania could reasonably differentiate between railroads having tracks which lay only within its borders and those whose tracks were located both within and without the State. The various considerations that justify such a classification from a federal constitutional standpoint need hardly be elaborated. It is sufficient to note that the State might reasonably have concluded that the probability of a nondomiciliary apportioned ad valorem tax on a railroad's total assets is greater if the railroad maintains tracks in another State than if it does not. Or it might have determined that the imposition of franchise or other taxes by nondomiciliary States in which the railroad did business compelled some mitigation of the domiciliary's property tax in order to prevent an oppressive tax burden. In either event, the possible basis for the taxing measure's classification would be reasonable and could not be held to violate the Equal Protection Clause. Cf. Allied Stores of Ohio, Inc., v. Bowers, 358 U.S. 522, 526—528, 79 S.Ct. 437, 440, 3 L.Ed.2d 480; Stebbins v. Riley, 268 U.S. 137, 142, 45 S.Ct. 424, 426, 69 L.Ed. 884; Kidd v. Alabama, 188 U.S. 730, 23 S.Ct. 401, 47 L.Ed. 669.
21
Accordingly, we conclude that with respect to all cars other than those employed by CNJ on its lines in New Jersey the appellant has failed to sustain its burden of proving that a tax situs had been acquired elsewhere. The exemption was properly disallowed in this regard.
22
The judgment of the Supreme Court of Pennsylvania is vacated and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Judgment of Supreme Court of Pennsylvania vacated and case remanded.
23
Mr. Justice FRANKFURTER took no part in the decision of this case.
24
Mr. Justice WHITE took no part in the consideration or decision of this case.
25
Mr. Justice BLACK, concurring.
26
In holding that one State's property tax may be invalidated in part because excessive under the Commerce Clause upon the showing of a risk that some other State could impose a tax on part of the value of the same property, the Court is following principles announced in prior decisions of this Court from which I dissented.1 While my views expressed in those cases remain unchanged, the necessity of this Court's deciding cases requires me to make decisions under the constitutional doctrine there declared so long as the Court remains committed to it.2 Where a party seeks to invoke that doctrine, as here, I wholly agree with the Court that the burden of showing that there is a risk of multiple taxation should rest upon the party challenging the constitutionality of a state tax. I also agree with the Court that the railroad in this case his failed to show a risk of multiple taxation with reference to any cars other than the average number that are in New Jersey on any given day. It is for the foregoing reasons that I concur in the Court's judgment and its opinion insofar as it rests on the Commerce Clause.
27
Since I think partial invalidation of the tax as to the average number of cars in New Jersey on any given day in the taxable year is fully supported by the Commerce Clause as this Court has interpreted it. I would have been content not to discuss the due process question at all. But since the Court does rest in part on due process, I find it necessary to express my doubts about the use of the Due Process Clause to strike down state tax laws. The modern use of due process to invalidate state taxes rests on two doctrines: (1) that a State is without 'jurisdiction to tax' property beyond its boundaries, and (2) that multiple taxation of the same property by different States is prohibited. Nothing in the language or the history of the Fourteenth Amendment, however, indicates any intention to establish either of these two doctrines concerning the power of States to tax. In fact neither of these doctrines originated in the Due Process Clause at all, but were first declared by this Court long before the Fourteenth Amendment with its Due Process Clause was adopted in 1868.3 And in the first case striking down a state tax for lack of jurisdiction to tax after the passage of that Amendment neither the Amendment nor its Due Process Clause nor any other constitutional provision was even mentioned; the Court simply struck down the state tax saying that to sustain it would be 'giving effect to the acts of the legislature of Pennsylvania upon property and interests lying beyond her jurisdiction.'4 These cases and others that followed for many years after the adoption of the Amendment rested either on the Commerce Clause or on no constitutional provision at all.5 In fact not a single state tax was struck down by this Court as a violation of the Due Process Clause until 19036—35 years after the adoption of the Amendment and then wholly without any historical or other reasons to show why the cryptic words of the Due Process Clause justified the invalidation of otherwise lawful state taxes. Nor did the Court reveal its reasons for giving due process this meaning in the next case.7 Finally, in the third case applying the Due Process Clause to strike down a state tax, the Court's complete lack of explanation led Mr. Justice Holmes to say:
28
'It seems to me that the result reached by the court probably is a desirable one, but I hardly understand how it can be deduced from the 14th Amendment; and as the Chief Justice feels the same difficulty, I think it proper to say that my doubt has not been removed.'8
29
The Court has ever since used the Due Process Clause to strike down state laws by finding in it substantially the same protection for interstate commerce as it has found in the Commerce Clause.9 But there is no reference to commerce in the Fourteenth Amendment and the Court has still never adequately explained just what the basis for its constitutional doctrine is. Because of this I have long entertained many of the same doubts that Mr. Justice Holmes expressed as to the use of this flexible and expansive interpretation of due process to invalidate state tax laws,10 but since the Court's holding here adequately rests on the presently prevailing interpretation of the Commerce Clause, I do not find this to be an appropriate occasion to suggest reconsideration of the applicability of the Due Process Clause to state tax laws.
30
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice STEWART join, dissenting in part.
31
The stipulations of fact in this case show that an average of 158 freight cars (of the value of $525,765.71) run on fixed routes and regular schedules over railroad lines outside of Pennsylvania. The Court properly holds that they are beyond the constitutional reach of Pennsylvania.
32
The stipulations of fact also show that an average of 2189.30 freight cars (of the value of $7,282,773) run regularly, habitually, and continuously on the lines of other railroads outside of Pennsylvania, though not on fixed schedules. The Pennsylvania tax on these cars is sustained on the authority of New York Central & H.R.R. Co. v. Miller, 202 U.S. 584, 26 S.Ct. 714, 50 L.Ed. 1155; and if that case is still intact the Court is correct in denying the exemption claimed.
33
With all deference we cannot, however, allow Pennsylvania to lay this tax and adhere to our recent decisions. In Ott v. Mississippi Barge Line, 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585, we allowed Louisiana and the City of New Orleans to levy ad valorem taxes on barges of foreign corporations even though the barges were not permanently in those jurisdictions nor operated there on fixed routes and regular schedules. The assessments sustained were 'based on the ratio between the total number of miles of appellees' lines in Louisiana and the total number of miles of the entire line.' Id., at 171, 69 S.Ct. at 433. We adopted for barge lines the rule applicable to railroads, saying that we saw 'no practical difference so far as either the Due Process Clause or the Commerce Clause is concerned whether it is vessels or railroad cars that are moving in interstate commerce.' Id., at 174, 69 S.Ct. at 434. We went on to say:
34
'The problem under the Commerce Clause is to determine 'what portion of an interstate organism may appropriately be attributed to each of the various states in which it functions.' Nashville, C. & St. L.R. Co. v. Browning, 310 U.S. 362, 365, 60 S.Ct. 968, 970, 84 L.Ed. 1254. So far as due process is concerned the only question is whether the tax in practical operation has relation to opportunities, benefits, or protection conferred or afforded by the taxing State. See Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444, 61 S.Ct. 246, 249, 85 L.Ed. 267. Those requirements are satisfied if the tax is fairly apportioned to the commerce carried on within the State.' Ibid.
35
We applied the decision in Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613, to barges, even though the Pullman's Car case, as noted in the Miller case (202 U.S. at 597, 26 S.Ct. at 717), sustained a tax on capital stock where the 'same cars were continuously receiving the protection' of the nondomiciliary taxing State. Nonetheless, in the Ott decision we allowed the tax by the nondomiciliary State to be levied on 'an average portion of property permanently within the State.' 336 U.S. at 175, 69 S.Ct. at 435.
36
In Standard Oil Co. v. Peck, 342 U.S. 382, 72 S.Ct. 309, 96 L.Ed. 427, we completed the redefinition of the holding in the Miller decision which was implicit in what we wrote in Ott. In the Peck case the domiciliary State was held to have no power to tax barges, except on a formula 'which fairly apportioned the tax to the commerce carried on within the state' (id., at 383, 72 S.Ct. at 310), as a result of which 'inland water transportation' was placed 'on the same constitutional footing as other interstate enterprises.' Id., at 384, 72 S.Ct. at 310. We distinguished the Miller case by saying that there 'it did not appear that 'any specific cars or any average of cars' was so continuously in another state as to be taxable there.' Id., at 384, 72 S.Ct. at 310. And we went on to say:
37
'No one vessel may have been continuously in another state during the taxable year. But we do know that most, if not all, of them were operating in other waters and therefore under Ott v. Mississippi Barge Line Co., supra, could be taxed by the several states on an apportionment basis. The rule which permits taxation by two or more states on an apportionment basis precludes taxation of all of the property by the state of the domicile. See Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194, 26 S.Ct. 36, 50 L.Ed. 150. Otherwise there would be multiple taxation of interstate operations and the tax would have no relation to the opportunities, benefits, or protection which the taxing state gives those operations.' Id., at 384—385, 72 S.Ct. at 310.
38
In Braniff Airways, Inc., v. Nebraska State Board, 347 U.S. 590, 74 S.Ct. 757, 98 L.Ed. 967, we allowed a nondomiciliary State to levy an apportioned ad valorem tax on aircraft making 18 stops per day in that State. We said, 'We think such regular contact is sufficient to establish Nebraska's power to tax even though the same aircraft do not land every day and even though none of the aircraft is continuously within the state.' Id., at 601, 74 S.Ct. at 764.
39
As a result of the Ott, Peck and Braniff cases the average of 2189.30 freight cars that run regularly, habitually, and continuously on lines of other railroads outside Pennsylvania could be taxed by other States, even though no State can identify the precise cars within its borders and even though the complement of cars is constantly changing. Since that average of freight cars is regularly, habitually, and continuously outside Pennsylvania, those cars are taxable elsewhere and thus beyond Pennsylvania's reach. The fact that we do not know the average annual number of cars in any given State does not help Pennsylvania's case. Whatever the average in any one State, the total outside Pennsylvania and taxable elsewhere is known and definite. Since that is true, we sanction double taxation when we sustain this tax. We would not allow it in the case of any other interstate business; and, as I read the Constitution, no exception is made that puts the railroad business at a disadvantage.
1
The tax imposed by the state statute is denominated a 'capital stock tax,' but it has been construed by the Pennsylvania courts as being the equivalent of a property tax. Pennsylvania v. Standard Oil Co., 101 Pa. 119, 145; Pennsylvania v. Union Shipbuilding Co., 271 Pa. 403, 114 A. 257. Property employed by a corporation in its operations in another State and permanently located there is not subject to this tax. Pennsylvania v. American Dredging Co., 122 Pa. 386, 15 A. 443, 1 L.R.A. 237. The value of the capital stock subjected to the tax is determined by multiplying the total value of the capital stock, as measured by the worth of all the corporation's real and personal property, by the ratio that the value of such nonexempt property within Pennsylvania (including that temporarily outside the State) bears to the value of the corporation's property everywhere. Purdon's Pa.Stat.Ann., 1949, Tit. 72, § 1896; Pennsylvania v. Delaware, L. & W.R. Co., 145 Pa. 96, 22 A. 157. With reference to this precise taxing measure, this Court has said in the past that it, in practical effect, amounts to 'a tax upon the specific property which gives the added value to the capital stock.' Delaware, L. & W.R. Co. v. Pennsylvania, 198 U.S. 341, 357, 25 S.Ct. 669, 674, 49 L.Ed. 1077.
2
If appellant's entire fleet of cars (3,074) is multiplied by the number of days in the year 1951 (365), the total number of 'car days' comes to 1,122,010. Appellant's schedules show that 605,678 'car days' were spent on railroads which owned no track in Pennsylvania. If this latter number is divided by 365, the quotient (1,659) represents the average number of cars located on such railroads on any one day during 1951.
3
For example, appellant computes 91,899 'car days' as having been spent on the lines of the New York Central Railroad. Since 7.36% of that railroad's track mileage is within Pennsylvania, appellant allocates 6,764 'car days,' a proportional share, to Pennsylvania.
4
The Supreme Court of Pennsylvania did find, however, that certain diesel locomotives which had been leased to CNJ by the appellant and which traveled along fixed routes and schedules had acquired a tax situs in New Jersey and could not be taxed at their full value by Pennsylvania. The State has not sought review of this part of that decision.
5
E.g., Southern Pac. Co. v. Kentucky, 222 U.S. 63, 32 S.Ct. 13, 56 L.Ed. 96; Johnson Oil Refining Co. v. Oklahoma, 290 U.S. 158, 54 S.Ct. 152, 78 L.Ed. 233; Northwest Airlines, Inc., v. Minnesota, 322 U.S. 292, 64 S.Ct. 950, 88 L.Ed. 1283; Ott v. Mississippi Valley Barge Line Co., 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585; Standard Oil Co. v. Peck, 342 U.S. 382, 72 S.Ct. 309, 96 L.Ed. 427; Braniff Airways, Inc., v. Nebraska State Board of Equalization, 347 U.S. 590, 74 S.Ct. 757, 98 L.Ed. 967. See generally Developments, 75 Harv.L.Rev. 953, 979—987.
6
The record in Standard Oil Co. v. Peck discloses that the boats and barges which Ohio sought to tax had been traveling along three regular routes on the Mississippi and Ohio Rivers: from Memphis, Tennessee, to Mt. Vernon, Indiana; from Memphis, Tennessee, to Bromley, Kentucky; and from Baton Rouge or Gibson's Landing, Louisiana, to Bromley, Kentucky. The States in which the vessels landed, as well as those through which they regularly traveled, could undoubtedly have traced these regular trips and levied appropriately apportioned ad valorem taxes.
7
The fact that revenues for the use of one or more of appellant's cars were accounted for by a subscriber to the 'Car Service and Per Diem Agreement' does not necessarily indicate that such cars were ever used on the lines of that subscriber. For under the Agreement subscribers were authorized to permit the use of another railroad's cars by nonsubscribers, though they themselves remained liable to the owner railroad for the per diem rentals in respect of their nonsubscriber use.
1
See, e.g., Gwin, White & Prince, Inc., v. Henneford, 305 U.S. 434, 442, 59 S.Ct. 325, 329, 83 L.Ed. 272; J. D. Adams Mfg. Co. v. Storen, 304 U.S. 307, 316, 58 S.Ct. 913, 918, 82 L.Ed. 1365. See also Northwest Airlines v. Minnesota, 322 U.S. 292, 301, 64 S.Ct. 950, 955, 88 L.Ed. 1283 (concurring opinion).
2
Cf. Morgan v. Virginia, 328 U.S. 373, 386, 66 S.Ct. 1050, 1058, 90 L.Ed. 1317 (concurring opinion).
3
Hays v. Pacific Mail Steamship Co., 17 How. 596, 15 L.Ed. 254 (1854). See also The Apollon, 9 Wheat. 362, 370, 6 L.Ed. 111 (1824); Braniff Airways, Inc. v. Nebraska State Board of Equalization, 347 U.S. 590, 599 note 18, 74 S.Ct. 757, 762, 98 L.Ed. 967.
4
Northern Central Railroad Co. v. Jackson, 7 Wall. 262, 268, 19 L.Ed. 88 (1869).
5
See, e.g., City of St. Louis v. Wiggins Ferry Co., 11 Wall. 423, 20 L.Ed. 192 (1871); State Tax on Foreign-Held Bonds, 15 Wall. 300, 21 L.Ed. 179 (1873); Morgan v. Parham, 16 Wall. 471, 21 L.Ed. 302 (1873); Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 5 S.Ct. 826, 29 L.Ed. 158 (1885). See also Tappan v. Merchants' National Bank, 19 Wall. 490, 22 L.Ed. 189 (1873); Coe v. Town of Errol, 116 U.S. 517, 6 S.Ct. 475, 29 L.Ed. 715 (1886); Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613 (1891).
6
Louisville & Jeffersonville Ferry Co. v. Kentucky, 188 U.S. 385, 23 S.Ct. 463, 47 L.Ed. 513.
7
Delaware, Lackawanna & Western R. Co. v. Pennsylvania, 198 U.S. 341, 25 S.Ct. 669, 49 L.Ed. 1077 (1905).
8
Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194, 211, 26 S.Ct. 36, 41, 50 L.Ed. 150 (1905). Professor Beale has said of this decision that, '(t)he dissent seemed sound as directed against the opinion that the state had no jurisdiction. Nevertheless, Judge Holmes was equally sound in saying that the result was a desirable one. It would be a rash constitutional lawyer who would argue today that an undesirable result was nevertheless constitutional.' 1 Beale, Conflict of Laws, 522. The use of the Due Process Clause as a method of striking down state tax laws remained a source of concern to Mr. Justice Holmes throughout the remainder of his service on the Court and produced quite a number of dissents. See, e.g., Safe Deposit & Trust Co. of Baltimore v. Virginia, 280 U.S. 83, 96, 50 S.Ct. 59, 62, 74 L.Ed. 180 (1929); Farmers Loan & Trust Co. v. Minnesota, 280 U.S. 204, 216, 50 S.Ct. 98, 102, 74 L.Ed. 371 (1930) (overruling Blackstone v. Miller, 188 U.S. 189, 23 S.Ct. 277, 47 L.Ed. 439); Baldwin v. Missouri, 281 U.S. 586, 595, 50 S.Ct. 436, 439, 74 L.Ed. 1056 (1930). In the Baldwin case he stated:
'I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable.' 281 U.S. at 595, 50 S.Ct. at 439. See also Mr. Justice, later Chief Justice, Stone's dissent in First National Bank of Boston v. Maine, 284 U.S. 312, 331, 52 S.Ct. 174, 178, 76 L.Ed. 313, in which he was joined by Mr. Justice Holmes and Mr. Justice Brandeis and State Tax Comm'n of Utah v. Aldrich, 316 U.S. 174, 62 S.Ct. 1008, 86 L.Ed. 1358, where the Court overruled First National Bank for the reasons expressed by the dissent in that case.
9
See H. P. Hood & Sons, Inc., v. Du Mond, 336 U.S. 525, 562, 69 S.Ct. 657, 668, 93 L.Ed. 865 (dissenting opinion).
10
See, e.g., Treichler v. Wisconsin, 338 U.S. 251, 257, 70 S.Ct. 1, 4, 94 L.Ed. 37 (dissenting opinion); Thomas v. Virginia, 364 U.S. 443, 81 S.Ct. 229, 5 L.Ed.2d 192 (dissenting opinion).
| 78
|
370 U.S. 717
82 S.Ct. 1287
8 L.Ed.2d 798
Bernard SILBER, Petitioner,v.UNITED STATES.
No. 454.
Argued April 19, 1962.
Decided June 25, 1962.
Victor Rabinowitz, New York City, for petitioner.
Bruce J. Terris, Washington, D.C., for respondent.
PER CURIAM.
1
The judgment is reversed. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240. The indictment upon which the petitioner was tried was identical to those held defective in Russell. The petitioner's timely motion to dismiss the indictment, made in accord with Fed.Rules Crim.Proc. 12(b)(2), was erroneously denied by the District Court.
2
Although the trial court squarely considered and decided the issue raised by the motion to dismiss, it was apparently not presented to the Court of Appeals and was not briefed or argued in this Court. While ordinarily we do not take note of errors not called to the attention of the Court of Appeals nor properly raised here, that rule is not without exception. The Court has 'the power to notice a 'plain error' though it is not assigned or specified', United Brotherhood of Carpenters v. United States, 330 U.S. 395, 412, 67 S.Ct. 775, 784, 91 L.Ed. 973.* 'In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.' United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555. Our own rules provide that 'the court, at its option, may notice a plain error not presented.' Revised Rules of the Supreme Court of the United States, Rule 40(1)(d)(2), 28 U.S.C.A. See also Fed.Rules Crim.Proc. 52(b).
3
Reversed.
4
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
5
Mr. Justice WHITE took no part in the decision of this case.
6
Mr. Justice CLARK and Mr. Justice HARLAN dissent for the reasons stated in their dissenting opinions in Russell v. United States, 369 U.S. 749, 779, 781, 82 S.Ct. 1038.
*
See Brasfield v. United States, 272 U.S. 448, 450, 47 S.Ct. 135, 71 L.Ed. 345; Mahler v. Eby, 264 U.S. 32, 45, 44 S.Ct. 283, 288, 68 L.Ed. 549; Weems v. United States, 217 U.S. 349, 362, 30 S.Ct. 544, 547, 54 L.Ed. 793. See also Kessler v. Strecker, 307 U.S. 22, 34, 59 S.Ct. 694, 700, 83 L.Ed. 1082.
| 23
|
370 U.S. 460
82 S.Ct. 1309
8 L.Ed.2d 627
UNITED STATES, Appellant,v.The BORDEN COMPANY et al.
No. 439.
Argued April 24 and 25, 1962.
Decided June 25, 1962.
Richard A. Solomon, Washington, D.C., for appellant.
Stuart S. Ball, Chicago, Ill., for appellee, The Borden Co.
John Paul Stevens, Chicago, Ill., for appellee, Bowman Dairy Co.
Mr. Justice CLARK delivered the opinion of the Court.
1
This is a direct appeal1 from a judgment dismissing the Government's Section 2(a) Clayton Act2 suit in which it sought an injunction against the selling of fluid milk products by the appellees, The Borden Company and Bowman Dairy Company, at prices which discriminate between independently owned grocery stores and grocery store chains. The District Court in an unreported decision found the pricing plan of each dairy to be a prima facie violation of § 2(a) but concluded that these discriminatory prices were legalized by the cost justification proviso of § 2(a), which permits price differentials as long as they 'make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered.' To review the Government's contention that the District Court had improperly permitted cost justifications based on the average cost of dealing with broad groups of customers unrelated in costsaving factors,3 we noted probable jurisdiction, 368 U.S. 924, 82 S.Ct. 361, 7 L.Ed.2d 189, and directed the parties to brief and argue the case separately as to each appellee, 368 U.S. 963, 82 S.Ct. 438. However, finding the same problem at the root of the cost justifications of each appellee, we have dealt with both in this single opinion. We have concluded that the class cost justifications submitted to the District Court by the appellees did not satisfy their burden of showing that their respective discriminatory pricing plans reflected only a 'due allowance' for cost differences.
2
By way of background, we first point out that the present appeal is merely a glimpse of protracted litigation between the parties which began in 1951 and which has not yet seen its end. The original complaint charged violations of §§ 1 and 2 of the Sherman Act, 15 U.S.C.A. §§ 1, 2 and § 2(a) of the Clayton Act. The District Court dismissed the suit, holding that there was no proof of the alleged Sherman Act violations and that no equitable relief was necessary under the Clayton Act charge because appellees were already restrained by a consent decree entered in a private antitrust case. D.C., 111 F.Supp. 562. On direct appeal we affirmed the dismissal of the Sherman Act charges but held erroneous the refusal to grant an injunction on the Clayton Act claim solely because of the existence of the private decree. 347 U.S. 514, 74 S.Ct. 703, 98 L.Ed. 903. On remand the case was reopened and on its prima facie case the Government introduced recent general price schedules and illustrated their effect on sample stores to show that each appellee was still engaged in illegal price discriminations notwithstanding the consent decree. In defense the appellees each introduced voluminous cost studies in justification of their pricing systems. The entire case was submitted via stipulations, depositions, and briefs. There was no dispute as to the existence of price discrimination; the sole question was whether the differences in price reflected permissible allowances for variances in cost.
3
In view of our disposition, we need not relate the facts in detail. Both appellees are major distributors of fluid malk products in metropolitan Chicago. The sales of both dairies to retail stores during the period in question were handled under plans which gave most of their customers—the independently owned stores—percentage discounts off list price which increased with the volume of their purchases to a specified maximum while granting a few customers—the grocery store chains—a flat discount without reference to volume and substantially greater than the maximum discount available under the volume plan offered independent stores. These discounts were made effective through schedules which appeared to cover all stores; however, the schedules were modified by private letters to the grocery chains confirming their higher discounts.4 Although the two sets of discounts were never officially labeled 'independent' and 'chain' prices, they were treated, called, and regarded as such throughout the record.
4
To support their defense that the disparities in price between independents and chains were attributable to differences in the cost of dealing with the two types of customers, the appellees introduced cost studies which will be described separately because of their differing content and analytical approach.
5
The Borden pricing system produced two classes of customers. The two chains, A & P and Jewel, with their combined total of 254 stores constituted one class. The 1,322 independent stores, grouped in four brackets based on the volume of their purchases, made up the other. Borden's cost justification was built on comparisons of its average cost per $100 of sales to the chains in relation to the average cost of similar sales to each of the four groups of independents. The costs considered were personnel (including routemen, clerical and sales employees), truck expenses, and losses on bad debts and returned milk. Various methods of cost allocation were utilized: Drivers' time spent at each store was charged directly to that store; certain clerical expenses were allocated between the two general classes; costs not susceptible of either of the foregoing were charged to the various stores on a per stop, per store, or volume basis.
6
Bowman's cost justification was based on differences in volume and methods of delivery. It relied heavily upon a study of the cost per minute of its routemen's time. It determined that substantial portions of this time were devoted to three operations, none of which were ever performed for the 163 stores operated by its two major chain customers.5 These added work steps arose from the method of collection, i.e., cash on delivery and the delayed collections connected therewith, and the performance of 'optional customer services.' The customer services, performed with varying frequency depending upon the circumstances, included 'services that the driver may be requested to do, such as deliver the order inside, place the containers in a refrigerator, rearrange containers so that any product remaining unsold from yesterday will be sold first today, leave cases of products at different spots in the store, etc.' The experts conducting the study calculated as to these elements a 'standard' cost per unit of product delivered: the aggregate time required to perform the services, as determined by sample time studies, was devided by the total number of units of product delivered. In essence, the Bowman justification was merely a comparison of the cost of these services in relation to the disparity between the chain and independent prices. Although it was shown that the five sample independents in the Government's prima facie case received the added services,6 it was not shown or found that all 2,500 independents supplied by Bowman partook of them. On the basis of its studies Bowman estimated that about two-thirds of the independent stores received the 'optional customer services' on a daily basis and that 'most store customers pay the driver in cash daily.'
7
On these facts, stated here in rather summary fashion, the trial court held that appellees had met the requirements of the proviso of § 2(a) on the theory that the general cost differences between chain stores as a class and independents as a class justified the disparities in price reflected in appellees' schedules. In so doing the trial court itself found 'the studies * * * imperfect in some respects * * *.' It noted the 'seemingly arbitrary' nature of a classification resulting 'in percentage discounts which do not bear a direct ratio to differences in volume of sales.' But it found 'this mode of classification is not wholly arbitrary—after all, most chain stores do purchase larger volumes of milk than do most independent stores.'7 We believe it was erroneous for the trial court to permit cost justifications based upon such classifications.
8
The burden, of course, was upon the appellees to prove that the illegal price discrimination, which the Government claimed and the trial court found present, was immunized by the cost justification proviso of § 2(a). Such is the mandate of § 2(b) as interpreted by this Court in Federal Trade Comm'n v. Morton Salt Co., 334 U.S. 37, 44—45, 68 S.Ct. 822, 827, 92 L.Ed. 1196 (1948).8 There can be no doubt that the § 2(a) proviso as amended by the Ribinson-Patman Act contemplates, both in express wording and legislative history, a showing of actual cost differences resulting from the differing methods or quantities in which the commodities in question are sold or delivered.9 The only question before us is how accurate this showing must be in relation to each particular purchaser.
9
Although the language of the proviso, with some support in the legislative history,10 is literally susceptible of a construction which would require any discrepancy in price between any two purchasers to be individually justified, the proviso has not been so construed by those charged with its enforcement. The Government candidly recognizes in its briefs filed in the instant case that '(a)s a matter of practical necessity * * * when a seller deals with a very large number of customers, he cannot be required to establish different cost-reflecting prices for each customer.' In this same vein, the practice of grouping customers for pricing purposes has long had the approval of the Federal Trade Commission.11 We ourselves have noted the 'elusiveness of cost data' in a Robinson-Patman Act proceeding. Automatic Canteen Co. v. Federal Trade Comm'n, 346 U.S. 61, 68, 73 S.Ct. 1017, 1021, 97 L.Ed. 1454 (1953). In short, to completely renounce class pricing as justified by class accounting would be to eliminate in practical effect the cost justification proviso as to sellers having a large number of purchasers, thereby preventing such sellers from passing on economies to their customers. It seems hardly necessary to say that such a result is at war with Congress' language and purpose.
10
But this is not to say that price differentials can be justified on the basis of arbitrary classifications or even classifications which are representative of a numerical majority of the individual members. At some point practical considerations shade into a circumvention of the proviso. A balance is struck by the use of classes for cost justification which are composed of members of such selfsameness as to make the averaging of the cost of dealing with the group a valid and reasonable indicium of the cost of dealing with any specific group member.12 High on the list of 'musts' in the use of the average cost of customer groupings under the proviso of § 2(a) is a close resemblance of the individual members of each group on the essential point or points which determine the costs considered.
11
In this regard we do not find the classifications submitted by the appellees to have been shown to be of sufficient homogeneity. Certainly, the cost factors considered were not necessarily encompassed within the manner in which a customer is owned. Turning first to Borden's justification, we note that it not only failed to show that the economies relied upon were isolated within the favored class but affirmatively revealed that members of the classes utilized were substantially unlike in the cost saving aspects considered. For instance, the favorable cost comparisons between the chains and the larger independents were for the greater part controlled by the higher average volume of the chain stores in comparison to the average volume of the 80-member class to which these independents were relegated. The District Court allowed this manner of justification because 'most chain stores do purchase larger volumes of milk than do most independent stores.' However, such a grouping for cost justification purposes, composed as it is of some independents having volumes comparable to, and in some cases larger than, that of the chain stores, created artificial disparities between the larger independents and the chain stores. It is like averaging one horse and one rabbit. As the Federal Trade Commission said in In the Matter of Champion Spark Plug Co., 50 F.T.C. 30, 43 (1953): 'A cost justification based on the difference between an estimated average cost of selling to one or two large customers and an average cost of selling to all other customers cannot be accepted as a defense to a charge of price discrimination.' This volume gap between the larger independents and the chain stores was further widened by grouping together the two chains, thereby raising the average volume of the stores of the smaller of the two chains in relation to the larger independents. Nor is the vice in the Borden class justification solely in the paper volumes relied upon, for it attributed to many independents cost factors which were not true indicia of the cost of dealing with those particular consumers. To illustrate, each independent was assigned a portion of the total expenses involved in daily cash collections, although it was not shown that all independents paid cash and in fact Borden admitted only that a 'large majority' did so.
12
Likewise the details of Bowman's cost study show a failure in classification. Only one additional point need be made. Its justification emphasized its costs for 'optional customer service' and daily cash collection with the resulting 'delay to collect.' As shown by its study these elements were crucial to Bowman's cost justification. In the study the experts charged all independents and no chain store with these costs. Yet, it was not shown that all independents received these services daily or even on some lesser basis. Bowman's studies indicated only that a large majority of independents took these services on a daily basis. Under such circumstances the use of these cost factors across the board in calculating independent store costs is not a permissible justification, for it possibly allocates costs to some independents whose mode of purchasing does not give rise to them. The burden was upon the profferer of the classification to negate this possibility, and this burden has not been met here. If these factors control the cost of dealing, then their presence or absence might with more justification be the password for admission into the various price categories.13
13
The appellees argue in the alternative that their cost justifications can be sufficiently unscrambled to remove any taint the Court may find in them and still show a cost gap sufficient to justify the price disparity between the chains and any independent. This mass of underlying statistical data not considered by the trial court and now tied together by untried theories can best be evaluated on remand, and we therefore do not consider its sufficiency here.
14
In sum, the record here shows that price discriminations have been permitted on the basis of cost differences between broad customer groupings, apparently based on the nature of ownership but in any event not shown to be so homogeneous as to permit the joining together of these purchasers for cost allocations purposes. If this is the only justification for appellees' pricing schemes, they are illegal. We do not believe that an appropriate decree would require the trial court continuously to 'pass judgment on the pricing practices of these defendants.' As to the issuance of an injunction, however, the case is now 11 years old and we have no way of knowing whether equitable relief is in order. Certainly a relevant factor in such consideration would be whether the practices described above are still being followed in any form. This the record here does not show. Such matters can only be ascertained upon the presently existing facts and the careful application of the principles we have enunciated. For that puprose the case is reversed and remanded.
15
Reversed and remanded.
16
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
17
Mr. Justice DOUGLAS, concurring.
18
This is not a case that involves problems of centralized purchasing by a large enterprise for all its constituent members, where the volume involved reduces the unit cost. We have here purchases by constituent members of chain stores of milk and milk products that will be sold at the particular store. The competitor is not a member of a competing chain or, if it is, the chain of which it is a part is a smaller one. The costs studies here involved have little, if any, relation to centralized management. They in the main pertain to two factors to cost. First, is the volume of sales of milk and milk products to the individual store and the method of payment. Second, the degree to which the store relieves the seller of milk and milk products from the costs of handling the product as it enters the store, of stacking or storing the products, and of returning the empty bottles or cartons.
19
The changes in the Clayton Act made by the Robinson-Patman Act now before us were made to limit discounts as 'instruments of favor and privilege and weapons of competitive oppression.' S.Rep.No.1502, 74th Cong., 2d Sess., p. 5; H.R.Rep.No.2287, 74th Cong., 2d Sess., p. 9. The allowance by § 2(a) of 'differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered' was explained as follows:
20
'This limits the differences in cost which may justify price differentials strictly to those actual differences traceable to the particular buyer for and against whom the discrimination is granted, to the different methods of serving them, and to the different quantities in which they buy.
21
'But such differentials whether they arise in operating or overhead cost must, as is plainly stated in the phrase quoted above, be those resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered.
22
'This, in its plain meaning, permits differences in overhead where they can actually be shown as between the customers or classes of customers concerned, but it precludes differentials based on the imputation of overhead to particular customers, or the exemption of others from it, where such overhead represents facilities or activities inseparable from the seller's business as a whole and not attributable to the business of particular customers or of the particular customers concerned in the discrimination. It leaves open as a question of fact in each case whether the differences in cost urged in justification of a price differential—whether of operating or of overhead costs—is of one kind or the other. That is, whether or not it answers the above requirements as to differences resulting from differing methods or quantities in which such commodities are to such purchasers sold or delivered.' H.R.Rep.No.2287, supra, p. 10. (Italics added.) While in some cases costs relevant to the issue of discrimination under the Robinson-Patman Act may be computed class by class, the only costs relevant here are those computed store by store. The question of cost of delivery to all stores in the favored chain is irrelevant, because overhead costs applicable to a business as a unit have no bearing on any of the cost formulae presented by this record.
23
In the case of Bowman Dairy Co., as the Court points out, the company charged all independents for customer service rendered by Bowman's deliverymen whether the independents availed themselves of the service or not. Bowman also charged independents for the time and expense of daily cash collections and for the costs of delays in collecting. These items were charged to independents even though it was not shown that their system of payment was always in cash, rather than by central billings, the system used by the chains.
24
In the Borden case an independent who purchased substantially larger quantities than the average chain store could not qualify for the discount the chain store obtained. This resulted because the independents were treated as one class, the chain stores as another class. As in Bowman the independents who did not make cash payments were treated as if they did; and they were not given the advantage which the chain stores enjoyed by reason of centralized billing even though they were on a credit basis.
25
What was said in Champion Spark Plug Co., 50 F.T.C. 30, 43, is relevant here:
26
'Respondent's cost of doing business undoubtedly varied as among its different customers. All of its selling expenses were not applicable on a proportionately equal basis to sales to all of its customers. However, in the absence of a sound basis for determining the actual cost of selling to particular customers, the sales to each customer must bear their proportionate share of the entire selling expense. A cost justification based on the difference between an estimated average cost of selling to one or two large customers and an average cost of selling to all other customers cannot be accepted as a defense to a charge of price discrimination.'
27
Where centralized purchasing for many stores takes place, the costs of dealing with the group as a class become relevant to the problem under § 2(a). But where, as here, no centralized purchasing is involved, the store-by-store costs are the only criteria relevant to the § 2(a) problem. Otherwise those with the most prestige get the largest discounts and the independent merchants are more and more forced to the wall.
28
The case was argued as if the grant of discounts was a natural right and that the Act should be construed so as to make the granting of them easy. The Act reflects, however, a purpose to control practices that lead to monopoly and an impoverishment of our middle class. I would therefore read it in a way that preserves as much of our traditional free enterprise as possible. Free enterprise is not free when monopoly power is used to breed more monopoly. That is the case here unless store-by-store costs are used as the criteria for discounts. This case is thus kin to that in Moore v. Mead's Fine Bread Co., 348 U.S. 115, 75 S.Ct. 148, 99 L.Ed. 145, where the lush treasury of a chain was used to bring a local bakery to its knees. Here, as there, the chains obtain a 'competitive advantage' not as a result 'of their skills or efficiency' but as a consequence of other influences.* There pricecutting was the weapon. Here it is the discount. Each leads to the same end the aggrandizement of power by the chains and the ploughing under of the independents. The antitrust laws, of which the Robinson-Patman Act is a part, were designed to avert such an inquest on free enterprise.
29
Mr. Justice HARLAN, dissenting.
30
The Court treats this case as if the District Court had introduced novel and disruptive principles into the law of 'cost justification' under § 2(a) of the Clayton Act.
31
Although I consider the respective cost studies much more adequate than the Court credits them with being, it is sufficient to say that, as I read the opinion below, the District Court judged their over-all adequacy in accordance with accepted principles of law in this field. The lower court indeed carefully refrained from giving unqualified approval to either set of cost studies, in substance merely holding (1) that the studies had been conscientiously prepared and prima facie appeared to justify generally the price discriminations arising from the appellees' discount practices (and more particularly to justify those specifically relied on by the Government as 'trial' samples); and (2) that, in light of the long-drawn-out history of this litigation, the appropriate disposition was to deny injunctive relief, allowing the Government to bring to the attention of the Federal Trade Commission any other specific price differentials which it believed not justifiable under these or other cost studies.
32
This seems to me an eminently sensible and fair disposition of this stale litigation which has now been in the courts for nearly 12 years. I can see no point whatever in this Court sending the case back to the District Court for what will presumably amount to a third trial, especially when it is apparent that drastic changes in the situation complained of by the Government have taken place since 1955.
33
Had what the record now reveals been fully appreciated at the time the Jurisdictional Statement was considered a summary disposition of the case would have been called for.*
34
I would affirm.
1
Jurisdiction is conferred under § 2 of the Expediting Act of February 11, 1903, 32 Stat. 823, as amended, 15 U.S.C. § 29, 15 U.S.C.A. § 29.
2
'Sec. 2. (a) That it shall be unlawful for any person engaged in commerce, in the course of such commerce, * * * to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, * * * and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered * * *.' 38 Stat. 730, as amended, 49 Stat. 1526, 15 U.S.C. § 13(a), 15 U.S.C.A. § 13(a).
3
Bowman's contention that the Government by stipulation limited itself to specific objections which do not include the present one is without foundation in the record. At the time the stipulation was proposed, the trial court made it quite clear that the Government by so stipulating clear that the Government by so stipulating was not waiving its right to argue the legal sufficiency of the proffered cost studies.
4
Borden in June of 1954 issued the following discount schedule to 'be applied to all purchases of Borden's fresh milk':
Average converted Percent of
units per day: discounts
0- 24............................. 0
25- 74............................ 2
75-149 ............................3
150 and over...................... 4
At this same time, letters were sent to The Great Atlantic and Pacific Tea Company and The Jewel Food Stores granting them flat 8 1/2% discounts. A few of the larger independents by special arrangement were given an additional 1 1/2% discount, thereby raising their total discount to 5 1/2%.
[Footnote 4 continued on p 464]
In September 1955, Borden discontinued the above discount system and utilized a net price scheme which resulted in even greater disparities between chains and independents.
Bowman in June of 1954 operated under the following 'Resale Store Discount Schedule':
Average converted Percent of
points per day: discounts
0 to 10....................... 3.0 to 3.4
10 to 20...................... 3.4 to 3.8
20 to 30...................... 3.8 to 4.2
30 to 40...................... 4.2 to 4.6
40 to 50...................... 4.6 to 5.0
50 to 60...................... 5.0 to 5.2
60 to 70...................... 5.2 to 5.4
70 to 80...................... 5.4 to 5.6
80 to 90...................... 5.6 to 5.8
90 to 100..................... 5.8 to 6.0
100 to 110..................... 6.0 to 6.2
110 to 120..................... 6.2 to 6.4
120 to 130..................... 6.4 to 6.6
130 to 140..................... 6.6 to 6.8
140 to 150..................... 6.8 to 7.0
This schedule was modified in August by the addition of the following discounts:
Average converted Percent of
points per day: discounts
150 to 200............................. 7.0 to 8.0
Over 200............................... 8.0
During this same period Bowman by letter granted The Great Atlantic and Pacific Tea Company and The Kroger Company flat 11% discounts. Goldblatt Bros., also a multi-store operation, was granted a flat 8 1/2%.
In 1955 and again in 1956 Bowman modified the brackets and percentages of its discount schedules, but not in a manner which reduced the disparity between independents and chains.
5
The third chain, Goldblatt Bros., also did not take these services.
6
The contention is made that the Government limited its prima facie case to a few stores on some routes and that therefore cost justification was only necessary as to them. This overlooks the fact that sampling has long been a recognized technique in price discrimination cases and that this offering was in support of the Government's position, found valid by the trial court, that the entire Chicago pricing scheme of each appellee, as evidenced by its published price lists, was in violation of § 2(a). In addition, appellee's cost justifications were not limited to the Government's sample stores.
7
Even the trial court was unwilling to give its 'stamp of approval to all pricing policies and practices revealed by the evidence.' But it concluded that to enjoin such practices would lead to regulation and would require the court continually 'to pass judgment on the pricing practices of these defendants,' a matter which might better be handled by proceedings before the Federal Trade Commission.
8
Sec. 2(b). 'Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section * * *.' 49 Stat. 1526, 15 U.S.C. § 13(b), 15 U.S.C.A. § 13(b).
9
For a collection and discussion of the pertinent legislative history as well as the cases and treatises on the § 2(a) proviso, see Rowe, Price Discrimination Under the Robinson-Patman Act, c. 10 (1962).
10
For instance, the Chairman of the Conference on the Bill reported to the House: 'The differential granted a particular customer must be traceable to some difference between him and other particular customers, either in the quantities purchased by them or in the methods by which they are purchased or their delivery taken.' 80 Cong.Rec. 9417 (1936).
11
For a discussion of the Commission's position in this regard, see Rowe, op. cit., supra, note 9, § 10.6.
12
Advisory Committee on Cost Justification, Report to the United States Federal Trade Commission (1956), p. 8.
13
Another suspect feature is that classifications based on services received by independents were apparently frozen—making it impossible for them to obtain larger discounts by electing not to receive the cost-determinative services—with no justifiable business reason offered in support of the practice.
*
See Curtiss Candy Co., 44 F.T.C. 237, 267—268, 274; International Salt Co., 49 F.T.C. 138, 153—155, 157; Champion Spark Plug Co., 50 F.T.C. 30, 43.
*
The delays occasioned by the overcrowded docket of this Court as well as the nature of the issues in this litigation again point up the inadvisability of vesting sole appellate jurisdiction over this type of case in this Court. See Brown Shoe Co. v. United States, 370 U.S. 294, 357, 82 S.Ct. 1502, 1542, (dissenting and concurring opinion).
| 78
|
370 U.S. 421
82 S.Ct. 1261
8 L.Ed.2d 601
Steven I. ENGEL et al., Petitioners,v.William J. VITALE, Jr., et al.
No. 468.
Argued April 3, 1962.
Decided June 25, 1962.
William J. Butler and Stanley Geller, New York City, for petitioners.
Bertram B. Daiker, Port Washington, N.Y., for respondents William J. Vitale, Jr., and others, constituting the Board of Education of Union Free School District No. 9, New Hyde Park, New York.
Porter R. Chandler, New York City, for intervenors-respondents, Henry Hollenberg and others.
Mr. Justice BLACK delivered the opinion of the Court.
1
The respondent Board of Education of Union Free School District No. 9, New Hyde Park, New York, acting in its official capacity under state law, directed the School District's principal to cause the following prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day:
2
'Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.'
3
This daily procedure was adopted on the recommendation of the State Board of Regents, a governmental agency created by the State Constitution to which the New York Legislature has granted broad supervisory, executive, and legislative powers over the State's public school system.1 These state officials composed the prayer which they recommended and published as a part of their 'Statement on Moral and Spiritual Training in the Schools,' saying: 'We believe that this Statement will be subscribed to by all men and women of good will, and we call upon all of them to aid in giving life to our program.'
4
Shortly after the practice of reciting the Regents' prayer was adopted by the School District, the parents of ten pupils brought this action in a New York State Court insisting that use of this official prayer in the public schools was contrary to the beliefs, religions, or religious practices of both themselves and their children. Among other things, these parents challenged the constitutionality of both the state law authorizing the School District to direct the use of prayer in public schools and the School District's regulation ordering the recitation of this particular prayer on the ground that these actions of official governmental agencies violate that part of the First Amendment of the Federal Constitution which commands that 'Congress shall make no law respecting an establishment of religion'—a command which was 'made applicable to the State of New York by the Fourteenth Amendment of the said Constitution.' The New York Court of Appeals, over the dissents of Judges Dye and Fuld, sustained an order of the lower state courts which had upheld the power of New York to use the Regents' prayer as a part of the daily procedures of its public schools so long as the schools did not compel any pupil to join in the prayer over his or his parents' objection.2 We granted certiorari to review this important decision involving rights protected by the First and Fourteenth Amendments.3
5
We think that by using its public school system to encourage recitation of the Regents' prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings as prescribed in the Regents' prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been religious, none of the respondents has denied this and the trial court expressly so found:
6
'The religious nature of prayer was recognized by Jefferson and has been concurred in by theological writers, the United States Supreme Court and state courts and administrative officials, including New York's Commissioner of Education. A committee of the New York Legislature has agreed.
7
'The Board of Regents as amicus curiae, the respondents and intervenors all concede the religious nature of prayer, but seek to distinguish this prayer because it is based on our spiritual heritage. * * *'4
8
The petitioners contend among other things that the state laws requiring or permitting use of the Regents' prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs. For this reason, petitioners argue, the State's use of the Regents' prayer in its public school system breaches the constitutional wall of separation between Church and State. We agree with that contention since we think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.
9
It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America. The Book of Common Prayer, which was created under governmental direction and which was approved by Acts of Parliament in 1548 and 1549,5 set out in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the established, tax-supported Church of England.6 The controversies over the Book and what should be its content repeatedly threatened to disrupt the peace of that country as the accepted forms of prayer in the established church changed with the views of the particular ruler that happened to be in control at the time.7 Powerful groups representing some of the varying religious views of the people struggled among themselves to impress their particular views upon the Government and obtain amendments of the Book more suitable to their respective notions of how religious services should be conducted in order that the official religious establishment would advance their particular religious beliefs.8 Other groups, lacking the necessary political power to influence the Government on the matter, decided to leave England and its established church and seek freedom in America from England's governmentally ordained and supported religion.
10
It is an unfortunate fact of history that when some of the very groups which had most strenuously opposed the established Church of England found themselves sufficiently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the official religion of their respective colonies.9 Indeed, as late as the time of the Revolutionary War, there were established churches in at least eight of the thirteen former colonies and established religions in at least four of the other five.10 But the successful Revolution against English political domination was shortly followed by intense opposition to the practice of establishing religion by law. This opposition crystallized rapidly into an effective political force in Virginia where the minority religious groups such as Presbyterians, Lutherans, Quakers and Baptists had gained such strength that the adherents to the established Episcopal Church were actually a minority themselves. In 1785—1786, those opposed to the established Church, led by James Madison and Thomas Jefferson, who, though themselves not members of any of these dissenting religious groups, opposed all religious establishments by law on grounds of principle, obtained the enactment of the famous 'Virginia Bill for Religious Liberty' by which all religious groups were placed on an equal footing so far as the State was concerned.11 Similar though less far-reaching legislation was being considered and passed in other States.12
11
By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, handship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government's stamp of approval from each King, Queen, or Protector that came to temporary power. The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people rather than in the hands of any monarch. But this safeguard was not enough. Out Founders were no more willing to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box than they were to let these vital matters of personal conscience depend upon the succession of monarchs. The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say— that the people's religions must not be subjected to the pressures of government for change each time a new political administration is elected to office. Under that Amendment's prohibition against governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment, government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.
12
There can be no doubt that New York's state prayer program officially establishes the religious beliefs embodied in the Regents' prayer. The respondents' argument to the contrary, which is largely based upon the contention that the Regents' prayer is 'nondenominational' and the fact that the program, as modified and approved by state courts, does not require all pupils to recite the prayer but permits those who wish to do so to remain silent or be excused from the room, ignores the essential nature of the program's constitutional defects. Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause, of the First Amendment, both of which are operative against the States by virtue of the Fourteenth Amendment. Although these two clauses may in certain instances overlap, they forbid two quite different kinds of governmental encroachment upon religious freedom. The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not. This is not to say, of course, that laws officially prescribing a particular form of religious worship do not involve coercion of such individuals. When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs.13 That same history showed that many people had lost their respect for any religion that had relied upon the support for government to spread its faith.14 The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its 'unhallowed perversion' by a civil magistrate.15 Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand.16 The Founders knew that only a few years after the Book of Common Prayer became the only accepted form of religious services in the established Church of England, an Act of Uniformity was passed to compel all Englishmen to attend those services and to make it a criminal offense to conduct or attend religious gatherings of any other kind17—a law which was consistently flouted by dissenting religious groups in England and which contributed to widespread persecutions of people like John Bunyan who persisted in holding 'unlawful (religious) meetings * * * to the great disturbance and distraction of the good subjects of this kingdom * * *.'18 And they knew that similar persecutions had received the sanction of law in several of the colonies in this country soon after the establishment of official religions in those colonies.19 It was in large part to get completely away from this sort of systematic religious persecution that the Founders brought into being our Nation, our Constitution, and our Bill of Rights with its prohibition against any governmental establishment of religion. The New York laws officially prescribing the Regents' prayer are inconsistent both with the purposes of the Establishment Clause and with the Establishment Clause itself.
13
It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, or course, could be more wrong. The history of man is inseparable from the history of religion. And perhaps it is not too much to say that since the beginning of that history many people have devoutly believed that 'More things are wrought by prayer than this world dreams of.' It was doubtless largely due to men who believed this that there grew up a sentiment that caused men to leave the cross-currents of officially established state religions and religious persecution in Europe and come to this country filled with the hope that they could find a place in which they could pray when they pleased to the God of their faith in the language they chose.20 And there were men of this same faith in the power of prayer who led the fight for adoption of our Constitution and also for our Bill of Rights with the very guarantees of religious freedom that forbid the sort of governmental activity which New York has attempted here. These men knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either. They knew rather that it was written to quiet well-justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men's tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.21
14
It is true that New York's establishment of its Regents' prayer as an officially approved religious doctrine of that State does not amount to a total establishment of one particular religious sect to the exclusion of all others—that, indeed, the governmental endorsement of that prayer seems relatively insignificant when compared to the governmental encroachments upon religion which were commonplace 200 years ago. To those who may subscribe to the view that because the Regents' official prayer is so brief and general there can be no danger to religious freedom in its governmental establishment, however, it may be appropriate to say in the words of James Madison, the author of the First Amendment:
15
'(I)t is proper to take alarm at the first experiment on our liberties. * * * Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? 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?'22
16
The judgment of the Court of Appeals of New York is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
17
Reversed and remanded.
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 DOUGLAS, concurring.
21
It is customary in deciding a constitutional question to treat it in its narrowest form. Yet at times the setting of the question gives it a form and content which no abstract treatment could give. The point for decision is whether the Government can constitutionally finance a religious exercise. Our system at the federal and state levels is presently honeycombed with such financing.1 Nevertheless, I think it is an unconstitutional undertaking whatever form it takes.
22
First, a word as to what this case does not involve.
23
Plainly, our Bill of Rights would not permit a State or the Federal Government to adopt an official prayer and penalize anyone who would not utter it. This, however, is not that case, for there is no element of compulsion or coercion in New York's regulation requiring that public schools be opened each day with the following prayer:
24
'Almighty God, we acknowledge our dependence upon Thee, ane we beg Thy blessings upon us, our parents, our teachers and our Country.'
25
The prayer is said upon the commencement of the school day, immediately following the pledge of allegiance to the flag. The prayer is said aloud in the presence of a teacher, who either leads the recitation or selects a student to do so. No student, however, is compelled to take part. The respondents have adopted a regulation which provides that 'Neither teachers nor any school authority shall comment on participation or non-participation * * * nor suggest or request that any posture or language be used or dress be worn or be not used or not worn.' Provision is also made for excusing children, upon written request of a parent or guardian, from the saying of the prayer or from the room in which the prayer is said. A letter implementing and explaining this regulation has been sent to each taxpayer and parent in the school district. As I read this regulation, a child is free to stand or not stand, to recite or not recite, without fear of reprisal or even comment by the teacher or any other school official.
26
In short, the only one who need utter the prayer is the teacher; and no teacher is complaining of it. Students can stand mute or even leave the classroom, if they desire.2
27
McCollum, etc. v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649, does not decide this case. It involved the use of public school facilities for religious education of students. Students either had to attend religious instruction or 'go to some other place in the school building for pursuit of their secular studies. * * * Reports of their presence or absence were to be made to their secular teachers.' Id., at 209, 68 S.Ct., at 464. The influence of the teaching staff was therefore brought to bear on the student body, to support the instilling of religious principles. In the present case, school facilities are used to say the prayer and the teaching staff is employed to lead the pupils in it. There is, however, no effort at indoctrination and no attempt at exposition. Prayers of course may be so long and of such a character as to amount to an attempt at the religious instruction that was denied the public schools by the McCollum case. But New York's prayer is of a character that does not involve any element of proselytizing as in the McCollum case.
28
The question presented by this case is therefore an extremely narrow one. It is whether New York oversteps the bounds when it finances a religious exercise.
29
What New York does on the opening of its public schools is what we do when we open court. Our Crier has from the beginning announced the convening of the Court and then added 'God save the United States and this Honorable Court.' That utterance is a supplication, a prayer in which we, the judges, are free to join, but which we need not recite any more than the students need recite the New York prayer.
30
What New York does on the opening of its public schools is what each House of Congress3 does at the opening of each day's business.4 Reverend Frederick B. Harris is Chaplain of the Senate; Reverend Bernard Braskamp is Chaplain of the House. Guest chaplains of various denominations also officiate.5
31
In New York the teacher who leads in prayer is on the public payroll; and the time she takes seems minuscule as compared with the salaries appropriated by state legislatures and Congress for chaplains to conduct prayers in the legislative halls. Only a bare fraction of the teacher's time is given to reciting this short 22-word prayer, about the same amount of time that our Crier spends announcing the opening of our sessions and offering a prayer for this Court. Yet for me the principle is the same, no matter how briefly the prayer is said, for in each of the instances given the person praying is a public official on the public payroll, performing a religious exercise in a governmental institution.6 It is said that the element of coercion is inherent in the giving of this prayer. If that is true here, it is also true of the prayer with which this Court is convened, and of those that open the Congress. Few adults, let alone children, would leave our courtroom or the Senate or the House while those prayers are being given. Every such audience is in a sense a 'captive' audience.
32
At the same time I cannot say that to authorize this prayer is to establish a religion in the strictly historic meaning of those words.7 A religion is not established in the usual sense merely by letting those who choose to do so say the prayer that the public school teacher leads. Yet once government finances a religious exercise it inserts a divisive influence into our communities.8 The New York Court said that the prayer given does not conform to all of the tenets of the Jewish, Unitarian, and Ethical Culture groups. One of the petitioners is an agnostic.
33
'We are a religious people whose institutions presuppose a Supreme Being.' Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 684, 96 L.Ed. 954. Under our Bill of Rights free play is given for making religion an active force in our lives.9 But 'if a religious leaven is to be worked into the affairs of our people, it is to be done by individuals and groups, not by the Government.' McGowan v. Maryland, 366 U.S. 420, 563, 81 S.Ct. 1101, 1219, 6 L.Ed.2d 393 (dissenting opinion). By reason of the First Amendment government is commanded 'to have no interest in theology or ritual' (id., at 564, 81 S.Ct., at 1219), for on those matters 'government must be neutral.' Ibid. The First Amendment leaves the Government in a position not of hostility to religion but of neutrality. The philosophy is that the atheist or agnostic—the nonbeliever—is entitled to go his own way. The philosophy is that if government interferes in matters spiritual, it will be a divisive force. The First Amendment teaches that a government neutral in the field of religion better serves all religious interests.
34
My problem today would be uncomplicated but for Everson v. Board of Education, 330 U.S. 1, 17, 67 S.Ct. 504, 512, 91 L.Ed. 711, which allowed taxpayers' money to be used to pay 'the bus fares of parochial school pupils as a part of a general program under which' the fares of pupils attending public and other schools were also paid. The Everson case seems in retrospect to be out of line with the First Amendment. Its result is appealing, as it allows aid to be given to needy children. Yet by the same token, public funds could be used to satisfy other needs of children in parochial schools—lunches, books, and tuition being obvious examples. Mr. Justice Rutledge stated in dissent what I think is durable First Amendment philosophy:
35
'The reasons underlying the Amendment's policy have not vanished with time or diminished in force.
36
Now as when it was adopted the price of religious freedom is double. It is that the church and religion shall live both within and upon that freedom. There cannot be freedom of religion, safeguarded by the state, and intervention by the church or its agencies in the state's domain or dependency on its largesse. Madison's Remonstrance, Par. 6, 8. The great condition of religious liberty is that it be maintained free from sustenance, as also from other interferences, by the state. For when it comes to rest upon that secular foundation it vanishes with the resting. Id., Par. 7, 8. Public money devoted to payment of religious costs, educational or other, brings the quest for more. It brings too the struggle of sect against sect for the larger share or for any. Here one by numbers alone will benefit most, there another. That is precisely the history of societies which have had an established religion and dissident groups. Id., Par. 8, 11. It is the very thing Jefferson and Madison experienced and sought to guard against, whether in its blunt or in its more screened forms. Ibid. The end of such strife cannot be other than to destroy the cherished liberty. The dominating group will achieve the dominate benefit; or all will embroil the state in their dissensions. Id., Par. 11.' Id., pp. 53—54, 67 S.Ct., pp. 529—530.
37
What New York does with this prayer is a break with that tradition. I therefore join the Court in reversing the judgment below.
38
Mr. Justice STEWART, dissenting.
39
A local school board in New York has provided that those pupils who wish to do so may join in a brief prayer at the beginning of each school day, acknowledging their dependence upon God and asking His blessing upon them and upon their parents, their teachers, and their country. The Court today decides that in permitting this brief non-denominational prayer the school board has violated the Constitution of the United States. I think this decision is wrong.
40
The Court does not hold, nor could it, that New York has interfered with the free exercise of anybody's religion. For the state courts have made clear that those who object to reciting the prayer must be entirely free of any compulsion to do so, including any 'embarrassments and pressures.' Cf. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. But the Court says that in permitting school children to say this simple prayer, the New York authorities have established 'an official religion.'
41
With all respect, I think the Court has misapplied a great constitutional principle. I cannot see how an 'official religion' is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation.
42
The Court's historical review of the quarrels over the Book of Common Prayer in England throws no light for me on the issue before us in this case. England had then and has now an established church. Equally unenlightening, I think, is the history of the early establishment and later rejection of an official church in our own States. For we deal here not with the establishment of a state church, which would, of course, be constitutionally impermissible, but with whether school children who want to begin their day by joining in prayer must be prohibited from doing so. Moreover, I think that the Court's task, in this as in all areas of constitutional adjudiciation, is not responsibly aided by the uncritical invocation of metaphors like the 'wall of separation,' a phrase nowhere to be found in the Constitution. What is relevant to the issue here is not the history of an established church in sixteenth century England or in eighteenth century America, but the history of the religious traditions of our people, reflected in countless practices of the institutions and officials of our government.
43
At the opening of each day's Session of this Court we stand, while one of our officials invokes the protection of God. Since the days of John Marshall our Crier has said, 'God save the United States and this Honorable Court.'1 Both the Senate and the House of Representatives open their daily Sessions with prayer.2 Each of our Presidents, from George Washington to John F. Kennedy, has upon assuming his Office asked the protection and help of God.3 Footnote 3--Continued.
take my present leave; but not without resorting once more to the benign Parent of the Human Race in humble supplication that, since He has been pleased to favor the American people with opportunities for deliberating in perfect tranquillity, and dispositions for deciding with unparalleled unanimity on a form of government for the security of their union and the advancement of their happiness, so His divine blessing may be equally conspicuous in the enlarged views, the temperate consultations, and the wise measures on which the success of this Government must depend.'
On March 4, 1797, President John Adams said:
'And may that Being who is supreme over all, the Patron of Order, the Fountain of Justice, and the Protector in all ages of the world of virtuous liberty, continue His blessing upon this nation and its Government and give it all possible success and duration consistent with the ends of His providence.'
On March 4, 1805, President Thomas Jefferson said:
'I shall need, too, the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life; who has covered our infancy with His providence and our riper years with His wisdom and power, and to whose goodness I ask you to join in supplications with me that He will so enlighten the minds of your servants, guide their councils, and prosper their measures that whatsoever they do shall result in your good, and shall secure to you the peace, friendship, and approbation of all nations.'
On March 4, 1809, President James Madison said:
'But the source to which I look * * * is in * * * my fellow-citizens, and in the counsels of those representing them in the other departments associated in the care of the national interests. In these my confidence will under every difficulty be best placed, next to that which we have all been encouraged to feel in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to address our devout gratitude for the past, as well as our fervent supplications and best hopes for the future.' Footnote 3--Continued.
The Court today says that the state and federal governments are without constitutional power to prescribe any particular form of words to be recited by any group of the American people on any subject touching religion.4 One of the stanzas of 'The Star-Spangled Banner,' made our National Anthem by Act of Congress in 1931,5 contains these verses:
'Blest with victory and peace, may the heav'n rescued land
Praise the Pow'r that hath made and preserved us a nation!
Then conquer we must, when our cause it is just,
And this be our motto 'In God is our Trust."
In 1954 Congress added a phrase to the Pledge of Allegiance to the Flag so that it now contains the words 'one Nation under God, indivisible, with liberty and justice for all.'6 In 1952 Congress enacted legislation calling upon the President each year to proclaim a National Day of Prayer.7 Since 1865 the words 'IN GOD WE TRUST' have been impressed on our coins.8
44
not from the generosity of the state but from the hand of God.
45
'With a good conscience our only sure reward, with history the final judge of our deeds, let us go forth to lead the land we love, asking His blessing and His help, but knowing that here on earth God's work must truly be our own.'
46
4 My brother DOUGLAS says that the only question before us is whether government 'can constitutionally finance a religious exercise.' The official chaplains of Congress are paid with public money. So are military chaplains. So are state and federal prison chaplains.
47
5 36 U.S.C. § 170, 36 U.S.C.A. § 170.
48
6 36 U.S.C. § 172, 36 U.S.C.A. § 172.
49
7 36 U.S.C. § 185, 36 U.S.C.A. § 185.
50
8 13 Stat. 517, 518; 17 Stat. 427; 35 Stat. 164; 69 Stat. 290. The current provisions are embodied in 31 U.S.C. §§ 324, 324a, 31 U.S.C.A. §§ 324, 324a.
51
Countless similar examples could be listed, but there is no need to belabor the obvious.9 It was all summed up by this Court just ten years ago in a single sentence: 'We are a religious people whose institutions presuppose a Supreme Being.' Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 684 96 L.Ed. 954.
52
I do not believe that this Court, or the Congress, or the President has by the actions and practices I have mentioned established an 'official religion' in violation of the Constitution. And I do not believe the State of New York has done so in this case. What each has done has been to recognize and to follow the deeply entrenched and highly cherished spiritual traditions of our Nation—traditions which come down to us from those who almost two hundred years ago avowed their 'firm Reliance on the Protection of divine Providence' when they proclaimed the freedom and independence of this brave new world.10
53
I dissent.
1
See New York Constitution, art. V, § 4; New York Education Law, McKinney's Consol.Laws, c. 16, §§ 101, 120 et seq., 202, 214 219, 224, 245 et seq., 704, and 801 et seq.
2
10 N.Y.2d 174, 218 N.Y.S.2d 659, 176 N.E.2d 579. The trial court's opinion, which is reported at 18 Misc.2d 659, 191 N.Y.S.2d 453, had made it clear that the Board of Education must set up some sort of procedures to protect those who objected to reciting the prayer: 'This is not to say that the rights accorded petitioners and their children under the 'free exercise' clause do not mandate safeguards against such embarrassments and pressures. It is enough on this score, however, that regulations, such as were adopted by New York City's Board of Education in connection with its released time program, be adopted, making clear that neither teachers nor any other school authority may comment on participation or non-participation in the exercise nor suggest or require that any posture or language be used or dress be worn or be not used or not worn. Non-participation may take the form either of remaining silent during the exercise, or if the parent or child so desires, of being excused entirely from the exercise. Such regulations must also make provision for those non-participants who are to be excused from the prayer exercise. The exact provision to be made is a matter for decision by the Board, rather than the Court, within the framework of constituional requirements. Within that framework would fall a provision that prayer participants proceed to a common assembly while non-participants attend other rooms, or that non-participants be permitted to arrive at school a few minutes late or to attend separate opening exercises, or any other method which treats with equality both participants and non-participants.' 18 Misc.2d, at 696, 191 N.Y.S.2d, at 492—493. See also the opinion of the Appellate Division affirming that of the trial court, reported at 11 A.D.2d 340, 206 N.Y.S.2d 183.
3
368 U.S. 924, 82 S.Ct. 367, 7 L.Ed.2d 189.
4
18 Misc.2d, at 671—672, 191 N.Y.S.2d, at 468—469.
5
2 & 3 Edward VI, c. 1, entitled 'An Act for Uniformity of Service and Administration of the Sacraments throughout the Realm'; 3 & 4 Edward VI, c. 10, entitled 'An Act for the abolishing and putting away of divers Books and Images.'
6
The provisions of the various versions of the Book of Commmon Prayer are set out in broad outline in the Encyclopaedia Britannica, Vol. 18 (1957 ed.), pp. 420—423. For a more complete description, see Pullan, The History of the Book of Common Prayer (1900).
7
The first major revision of the Book of Common Prayer was made in 1552 during the reign of Edward VI. 5 & 6 Edward VI, c. 1. In 1553, Edward VI died and was succeeded by Mary who abolished the Book of Common Prayer entirely. 1 Mary, c. 2. But upon the accession of Elizabeth, in 1558, the Book was restored with important alterations from the form it had been given by Edward VI. 1 Elizabeth, c. 2. The resentment to this amended form of the Book was kept firmly under control during the reign of Elizabeth but, upon her death in 1603, a petition signed by more than 1,000 Puritan ministers was presented to King James I asking for further alterations in the Book. Some alterations were made and the Book retained substantially this form until it was completely suppressed again in 1645 as a result of the successful Puritan Revolution. Shortly after the restoration in 1660 of Charles II, the Book was again reintroduced, 13 & 14 Charles II, c. 4, and again with alterations. Rather than accept this form of the Book some 2,000 Puritan ministers vacated their benefices. See generally Pullan, The History of the Book of Common Prayer (1900), pp. vii—xvi; Encyclopaedia Britannica (1957 ed.), Vol. 18, pp. 421 422.
8
For example, the Puritans twice attempted to modify the Book of Common Prayer and once attempted to destroy it. The story of their struggle to modify the Book in the reign of Charles I is vividly summarized in Pullan, History of the Book of Common Prayer, at p. xiii: 'The King actively supported those members of the Church of England who were anxious to vindicate its Catholic character and maintain the ceremonial which Elizabeth had approved. Laud, Archbishop of Canterbury, was the leader of this school. Equally resolute in his opposition to the distinctive tenets of Rome and of Geneva, he enjoyed the hatred of both Jesuit and Calvinist. He helped the Scottish bishops, who had made large concessions to the uncouth habits of Presbyterian worship, to draw up a Book of Common Prayer for Scotland. It contained a Communion Office resembling that of the book of 1549. It came into use in 1637, and met with a bitter and barbarous opposition. The vigour of the Scottish Protestants strengthened the hands of their English sympathisers. Laud and Charles were executed, Episcopacy was abolished, the use of the Book of Common Prayer was prohibited.'
9
For a description of some of the laws enacted by early theocratic governments in New England, see Parrington, Main Currents in American Thought (1930), Vol. 1, pp. 5—50; Whipple, Our Ancient Liberties (1927), pp. 63—78; Wertenbaker, The Puritan Oligarchy (1947).
10
The Church of England was the established church of at least five colonies: Maryland, Virginia, North Carolina, South Carolina and Georgia. There seems to be some controversy as to whether that church was officially established in New York and New Jersey but there is no doubt that it received substantial support from those States. See Cobb, The Rise of Religious Liberty in America (1902), pp. 338, 408. In Massachusetts, New Hampshire and Connecticut, the Congregationalist Church was officially established. In Pennsylvania and Delaware, all Christian sects were treated equally in most situations but Catholics were discriminated against in some respects. See generally Cobb, The Rise of Religious Liberty in America (1902). In Rhode Island all Protestants enjoyed equal privileges but it is not clear whether Catholics were allowed to vote. Compare Fiske, The Critical Period in American History (1899), p. 76 with Cobb, The Rise of Religious Liberty in America (1902), pp. 437—438.
11
12 Hening, Statutes of Virginia (1823), 84, entitled 'An act for establishing religious freedom.' The story of the events surrounding the enactment of this law was reviewed in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711, both by the Court, at pp. 11—13, 67 S.Ct., at p. 509, and in the dissenting opinion of Mr. Justice Rutledge, at pp. 33—42, 67 S.Ct., at pp. 520—524. See also Fiske, The Critical Period in American History (1899), pp. 78—82; James, The Struggle for Religious Liberty in Virginia (1900); Thom, The Struggle for Religious Freedom in Virginia: The Baptists (1900); Cobb, The Rise of Religious Liberty in American (1902), pp. 74—115, 482—499.
12
See Cobb, The Rise of Religious Liberty in America (1902), pp. 74—115, 482—499. in American (1902), pp. 482—509.
13
'(A)ttempts to enforce by legal sanctions, acts obnoxious to so great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. It is be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case where it is deemed invalid and dangerous? and what may be the effect of so striking an example of impotency in the Government, on its general authority.' Memorial and Remonstrance against Religious Assessments, II Writings of Madison 183, 190.
14
'It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence, and the patronage of its Author; and to foster in those who still reject it, a suspicion that its friends are too conscious of its fallacies, to trust it to its own merits. * * * (E)xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries, has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy; ignorance and servility in the laity; in both, superstition, bigotry and persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest lustre; those of every sect, point to the ages prior to its incorporation with Civil policy.' Id., at 187.
15
Memorial and Remonstrance against Religious Assessments, II Writings of Madison, at 187.
16
'(T)he proposed establishment is a departure from that generous policy, which, offering an asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the number of its citizens. What a melancholy mark is the Bill of sudden degeneracy? Instead of holding forth an asylum to the persecuted, it is itself a signal of persecution. * * * District as it may be, in its present form, from the Inquisition it differs from it only in degree. The one is the first step, the other the last in the career of intolerance. The magnanimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthropy in their due extent may offer a more certain repose from his troubles.' Id., at 188.
17
5 & 6 Edward VI, c. 1, entitled 'An Act for the Uniformity of Service and Administration of Sacraments throughout the Realm.' This Act was repealed during the reign of Mary but revived upon the accession of Elizabeth. See note 7, supra. The reasons which led to the enactment of this statute were set out in its preamble: 'Where there hath been a very godly Order set forth by the Authority of Parliament, for Common Prayer and Administration of the Sacraments to be used in the Mother Tongue within the Church of England, agreeable to the Word of God and the Primitive Church, very comfortable to all good People desiring to live in Christian Conversation, and most profitable to the Estate of this Realm, upon the which the Mercy, Favour and Blessing of Alimighty God is in no wise so readily and plenteously poured as by Common Prayers, due using of the Sacraments, and often preaching of the Gospel, with the Devotion of the Hearers: (1) And yet this notwithstanding, a great Number of People in divers Parts of this Realm, following their own Sensuality, and living either without Knowledge or due Fear of God, do wilfully and damnably before Almighty God abstain and refuse to come to their Parish Churches and other Places where Common Prayer, Administration of the Sacraments, and Preaching of the Word of God, is used upon Sundays and other Days ordained to be Holydays.'
18
Bunyan's own account of his trial is set forth in A Relation of the Imprisonment of Mr. John Bunyan, reprinted in Grace Abounding and The Pilgrim's Progress (Brown ed. 1907), at 103—132.
19
For a vivid account of some of these persecutions, see Wertenbaker, The Puritan Oligarchy (1947).
20
Perhaps the best example of the sort of men who came to this country for precisely that reason is Roger Williams, the founder of Rhode Island, who has been described as 'the truest Christian amongst many who sincerely desired to be Christian.' Parrington, Main Currents in American Thought (1930), Vol. 1, at p. 74. Williams, who was one of the earliest exponents of the doctrine of separation of church and state, believed that separation was necessary in order to protect the church from the danger of destruction which he thought inevitably flowed from control by even the best-intentioned civil authorities: 'The unknowing zeale of Contantine and other Emperours, did more hurt to Christ Jesus his Crowne and Kingdome, then the raging fury of the most bloody Neroes. In the persecutions of the later, Christians were sweet and fragrant, like spice pounded and beaten in morters: But those good Emperours, persecuting some erroneous persons, Arrius, &c. and advancing the professours of some Truths of Christ (for there was no small number of Truths lost in those times) and maintaining their Religion by the materiall Sword, I say by this meanes Christianity was ecclipsed, and the Professors of it fell asleep * * *.' Williams, The Bloudy Tenent, of Persecution, for cause of Conscience, discussed in A Conference betweene Truth and Peace (London, 1644), reprinted in Narragansett Club Publications, Vol. III, p. 184. To Williams, it was no part of the business or competence of a civil magistrate to interfere in religious matters: '(W)hat imprudence and indiscretion is it in the most common affaires of Life, to conceive that Emperours, Kings and Rulers of the earth must not only be qualified with politicall and state abilities to make and execute such Civill Lawes which may concerne the common rights, peace and safety (which is worke and businesse, load and burthen enough for the ablest shoulders in the Commonweal) but also furnished with such Spirituall and heavenly abilities to governe the Spirituall and Christian Commonweale * * *.' Id., at 366. See also id., at 136 137.
21
There is of course nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer's professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance.
22
Memorial and Remonstrance against Religious Assessments, II Writings of Madison 183, at 185—186.
1
'There are many 'aids' to religion in this country at all levels of government. To mention but a few at the federal level, one might begin by observing that the very First Congress which wrote the First Amendment provided for chaplains in both Houses and in the armed services. There is compulsory chapel at the service academies, and religious services are held in federal hospitals and prisons. The President issues religious proclamations. The Bible is used for the administration of oaths. N.Y.A. and W.P.A. funds were available to parochial schools during the depression. Veterans receiving money under the 'G. I.' Bill of 1944 (38 U.S.C.A. § 1801 et seq.) could attend denominational schools, to which payments were made directly by the government. During World War II, federal money was contributed to denominational schools for the training of nurses. The benefits of the National School Lunch Act (42 U.S.C.A. § 1751 et seq.) are available to students in private as well as public schools. The Hospital Survey and Construction Act of 1946 (42 U.S.C.A. § 291 et seq.) specifically made money available to non-public hospitals. The slogan 'In God We Trust' is used by the Treasury Department, and Congress recently added God to the pledge of allegiance. There is Bible-reading in the schools of the District of Columbia, and religious instruction is given in the District's National Training School for Boys. Religious organizations are exempt from the federal income tax and are granted postal privileges. Up to defined limits—15 per cent of the adjusted gross income of individuals and 5 per cent of the net income of corporations contributions to religious organizations are deductible for federal income tax purposes. There are no limits to the deductibility of gifts and bequests to religious institutions made under the federal gift and estate tax laws. This list of federal 'aids' could easily be expanded, and of course there is a long list in each state.' Feldman, The Limits of Freedom (1959), pp. 40 41.
2
West Point Cadets are required to attend chapel each Sunday. Reg., c. 21, § 2101. The same requirement obtains at the Naval Academy (Reg., c. 9, § 0901, (1)(a)), and at the Air Force Academy except First Classmen. Catalogue, 1962—1963, p. 110. And see Honeywell, Chaplains of the United States Army (1958); Jorgensen, The Service of Chaplains to Army Air Units, 1917—1946, Vol. I (1961).
3
The New York Legislature follows the same procedure. See, e.g., Vol. 1, N.Y. Assembly Jour., 184th Sess., 1961, p. 8; Vol. 1, N.Y. Senate Jour., 184th Sess., 1961, p. 5.
4
Rules of the Senate provide that each calendar day's session shall open with prayer. See Rule III, Senate Manual, S.Doc. No. 2, 87th Cong., 1st Sess. The same is true of the Rules of the House. See Rule VII, Rules of the House of Representatives, H.R.Doc. No. 459, 86th Cong., 2d Sess. The Chaplains of the Senate and of the House receive $8,810 annually. See 75 Stat. 320, 324.
5
It would, I assume, make no difference in the present case if a different prayer were said every day or if the ministers of the community rotated, each giving his own prayer. For some of the petitioners in the present case profess no religion.
The Pledge of Allegiance, like the prayer, recognizes the existence of a Supreme Being. Since 1954 it has contained the words 'one Nation under God, indivisible, with liberty and justice for all'. 36 U.S.C. § 172, 36 U.S.C.A. § 172. The House Report recommending the addition of the words 'under God' stated that those words in no way run contrary to the First Amendment but recognize 'only the guidance of God in our national affairs.' H.R.Rep. No. 1693, 83d Cong., 2d Sess., p. 3, U.S.Code Cong. and Adm.News 1954, p. 2341. And see S.Rep. No. 1287, 83d Cong., 2d Sess. Senator Ferguson, who sponsored the measure in the Senate, pointed out that the words 'In God We Trust' are over the entrance to the Senate Chamber. 100 Cong.Rec. 6348. He added:
'I have felt that the Pledge of Allegiance to the Flag which stands for the United States of America should recognize the Creator who we really believe is in control of the destinies of this great Republic.
'It is true that under the Constitution no power is lodged anywhere to establish a religion. This is not an attempt to establish a religion; it has nothing to do with anything of that kind. It relates to belief in God, in whom we sincerely repose our trust. We know that America cannot be defended by guns, planes, and ships alone. Appropriations and expenditures for defense will be of value only if the God under whom we live believes that we are in the right. We should at all times recognize God's province over the lives of our people and over this great Nation.' Ibid. And see 10 Cong.Rec. 7757 et seq. for the debates in the House.
The Act of March 3, 1865, 13 Stat. 517, 518, authorized the phrase 'In God We Trust' to be placed on coins. And see 17 Stat. 427. The first mandatory requirement for the use of that motto on coins was made by the Act of May 18, 1908, 35 Stat. 164, 31 U.S.C.A. § 324. See H.R.Rep. No. 1106, 60th Cong., 1st Sess.; 42 Cong.Rec. 3384 et seq. The use of the motto on all currency and coins was directed by the Act of July 11, 1955, 69 Stat. 290, 31 U.S.C.A. § 324a. See H.R.Rep. No. 662, 84th Cong., 1st Sess.; S.Rep. No. 637, 84th Cong., 1st Sess., U.S.Code Cong. and Adm.News 1955, p. 2417. Moreover, by the Joint Resolution of July 30, 1956, our national motto was declared to be 'In God We Trust.' 70 Stat. 732, 36 U.S.C.A. § 186. In reporting the Joint Resolution, the Senate Judiciary Committee stated:
'Further official recognition of this motto was given by the adoption of the Star-Spangled Banner as our national anthem. One stanza of our national anthem is as follows:
"O, thus be it ever when freemen shall stand
Between their lov'd home and the war's desolation!
Blest with vict'ry and peace may the heav'n rescued land
Praise the power that hath made and preserved us a nation!
Then conquer we must when our cause it is just,
And this be our motto—'In God is our trust.'
And the Star-Spangled Banner in triumph shall wave
O'er the land of the free and the home of the brave.'
'In view of these words in our national anthem, it is clear that 'In God we trust' has a strong claim as our national motto.' S.Rep. No. 2703, 84th Cong., 2d Sess., p. 2.
6
The fact that taxpayers do not have standing in the federal courts to raise the issue (Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078) is of course no justification for drawing a line between what is done in New York on the one hand and on the other what we do and what Congress does in this matter of prayer.
7
The Court analogizes the present case to those involving the traditional Established Church. We once had an Established Church, the Anglican. All baptisms and marriages had to take place there. That church was supported by taxation. In these and other ways the Anglican Church was favored over the others. The First Amendment put an end to placing any one church in a preferred position. It ended support of any church or all churches by taxation. It went further and prevented secular sanction to any religious ceremony, dogma, or rite. Thus, it prevents civil penalties from being applied against recalcitrants or nonconformists.
8
Some communities have a Christmas tree purchased with the taxpayers' money. The tree is sometimes decorated with the words 'Peace on earth, goodwill to men.' At other times the authorities draw from a different version of the Bible which says 'Peace on earth to men of goodwill.' Christmas, I suppose, is still a religious celebration, not merely a day put on the calendar for the benefit of merchants.
9
Religion was once deemed to be a function of the public school system. The Northwest Ordinance, which antedated the First Amendment, provided in Article III that 'Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.'
1
See Warren, The Supreme Court in United States History, Vol. 1, p. 469.
2
See Rule III, Senate Manual, S.Doc. No. 2, 87th Cong., 1st Sess. See Rule VII, Rules of the House of Representatives, H.R.Doc. No. 459, 86th Cong., 2d Sess.
3
For example:
On April 30, 1789, President George Washington said:
'* * * it would be peculiarly improper to omit in this first official act my fervent supplications to that Almighty Being who rules over the universe, who presides in the councils of nations, and whose providential aids can supply every human defect, that His benediction may consecrate to the liberties and happiness of the people of the United States a Government instituted by themselves for these essential purposes, and may enable every instrument employed in its administration to execute with success the functions allotted to his charge. In tendering this homage to the Great Author of every public and private good, I assure myself that it expresses your sentiments not less than my own, nor those of my fellow-citizens at large less than either. No people can be bound to acknowledge and adore the Invisible Hand which conducts the affairs of men more than those of the United States. * * *
'Having thus imparted to you my sentiments as they have been awakened by the occasion which brings us together, I shall
On March 4, 1865, President Abraham Lincoln said:
'* * * Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said 'the judgments of the Lord are true and righteous altogether.'
'With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.'
On March 4, 1885, President Grover Cleveland said:
'* * * And let us not trust to human effort alone, but humbly acknowledging the power and goodness of Almighty God, who presides over the destiny of nations, and who has at all times been revealed in our country's history, let us invoke His aid and His blessing upon our labors.'
On March 5, 1917, President Woodrow Wilson said:
'* * * I pray God I may be given the wisdom and the prudence to do my duty in the true spirit of this great people.'
On March 4, 1933, President Franklin D. Roosevelt said:
'In this dedication of a Nation we humbly ask the blessing of God. May He protect each and every one of us. May He guide me in the days to come.'
On January 21, 1957, President Dwight D. Eisenhower said:
'Before all else, we seek, upon our common labor as a nation, the blessings of Almighty God. And the hopes in our hearts fashion the deepest prayers of our whole people.'
On January 20, 1961, President John F. Kennedy said:
'The world is very different now. * * * And yet the same revolutionary beliefs for which our forebears fought are still at issue around the globe—the belief that the rights of man come
9
I am at a loss to understand the Court's unsupported ipse dixit that these official expressions of religious faith in and reliance upon a Supreme Being 'bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance.' See 370 U.S., p. 435, 82 S.Ct., p. 1269, supra, n. 21. I can hardly think that the Court means to say that the First Amendment imposes a lesser restriction upon the Federal Government than does the Fourteenth Amendment upon the States. Or is the Court suggesting that the Constitution permits judges and Congressmen and Presidents to join in prayer, but prohibits school children from doing so?
10
The Declaration of Independence ends with this sentence: 'And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.'
| 23
|
370 U.S. 626
82 S.Ct. 1386
8 L.Ed.2d 734
William LINK, Petitioner,v.WABASH RAILROAD COMPANY.
No. 422.
Argued April 3, 1962.
Decided June 25, 1962.
Jay E. Darlington, Hammond, Ind., for petitioner.
John F. Bodle, Lafayette, Ind., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Petitioner challenges, from the standpoint of both power and discretion, the District Court's sua sponte dismissal of this diversity negligence action under circumstances that follow.
2
The action, growing out of a collision between petitioner's automobile and one of respondent's trains, was commenced on August 24, 1954. Some six years later, and more than three years after petitioner had finally prevailed on respondent's motion for judgment on the pleadings (during which time two fixed trial dates had been postponed),1 the District Court, on September 29, 1960, duly notified counsel for each side of the scheduling of a pretrial conference to be held at the courthouse in Hammond, Indiana, on October 12, 1960, at 1 p.m. During the preceding morning, October 11, petitioner's counsel telephoned respondent's lawyer from Indianapolis, stating that 'he was doing some work on some papers,' that he expected to be at the pretrial conference, but that he might not attend the taking of a deposition of the plaintiff scheduled for the same day. At about 10:45 on the morning of October 12 petitioner's counsel telephoned the Hammond courthouse from Indianapolis (about 160 miles away), and after asking for the judge, who then was on the bench, requested the judge's secretary to convey to him this message: 'that he (counsel) was busy preparing papers to file with the (Indiana) Supreme Court,' that 'he wasn't actually engaged in argument and that he couldn't be here by 1:00 o'clock, but he would be here either Thursday afternoon (October 13) or any time Friday (October 14) if it (the pretrial conference) could be reset.'
3
When petitioner's counsel did not appear at the pretrial conference the District Court, after reviewing the history of the case2 and finding that counsel had failed 'to indicate * * * a reasonable reason' for his nonappearance, dismissed the action 'for failure of the plaintiff's counsel to appear at the pretrial, for failure to prosecute this action.' The court, acting two hours after the appointed hour for the conference, stated that the dismissal was in the 'exercise (of) its inherent power.' The Court of Appeals affirmed by a divided vote. 7 Cir., 291 F.2d 542. We granted certiorari. 368 U.S. 918, 82 S.Ct. 242, 7 L.Ed.2d 134.
I.
4
The authority of a federal trial court to dismiss a plaintiff's action with prejudice because of his failure to prosecute cannot seriously be doubted.3 The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts. The power is of ancient origin, having its roots in judgments of nonsuit and non prosequitur entered at common law, e.g., 3 Blackstone, Commentaries (1768), 295—296, and dismissals for want of prosecution of bills in equity, e.g., id., at 451. It has been expressly recognized in Federal Rule of Civil Procedure 41(b), which provides, in pertinent part:
5
'(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. * * * Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits.'
6
Petitioner contends that the language of this Rule, by negative implication, prohibits involuntary dismissals for failure of the plaintiff to prosecute except upon motion by the defendant. In the present case there was no such motion.
7
We do not read Rule 41(b) as implying any such restriction. Neither the permissive language of the Rule—which merely authorizes a motion by the defendant—nor its policy requires us to conclude that it was the purpose of the Rule to abrogate the power of courts, acting on their own initiative, to clear their calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief. The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an 'inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.4 That it has long gone unquestioned is apparent not only from the many state court decisions sustaining such dismissals,5 but even from language in this Court's opinion in Redfield v. Ystalyfera Iron Co., 110 U.S. 174, 176, 3 S.Ct. 570, 28 L.Ed. 109.6 It also has the sanction of wide usage among the District Courts.7 It would require a much clearer expression of purpose than Rule 41(b) provides for us to assume that it was intended to abrogate so well-acknowledged a proposition.
8
Nor does the absence of notice as to the possibility of dismissal or the failure to hold an adversary hearing necessarily render such a dismissal void. It is true, of course, that 'the fundamental requirement of due process is an opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked.' Anderson National Bank v. Luckett, 321 U.S. 233, 246, 64 S.Ct. 599, 606, 88 L.Ed. 692. But this does not mean that every order entered without notice and a preliminary adversary hearing offends due process. The adequacy of notice and hearing respecting proceedings that may affect a party's rights turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct. The circumstances here were such as to dispense with the necessity for advance notice and hearing.
9
In addition, the availability of a corrective remedy such as is provided by Federal Rule of Civil Procedure 60(b)—which authorizes the reopening of cases in which final orders have been inadvisedly entered—renders tha lack of prior notice of less consequence. Petitioner never sought to avail himself of the escape hatch provided by Rule 60(b).
10
Accordingly, when circumstances make such action appropriate, a District Court may dismiss a complaint for failure to prosecute even without affording notice of its intention to do so or providing an adversary hearing before acting. Whether such an order can stand on appeal depends not on power but on whether it was within the permissible range of the court's discretion.8
II.
11
On this record we are unable to say that the District Court's dismissal of this action for failure to prosecute, as evidenced only partly by the failure of petitioner's counsel to appear at a duly scheduled pretrial conference, amounted to an abuse of discretion. It was certainly within the bounds of permissible discretion for the court to conclude that the telephone excuse offered by petitioner's counsel was inadequate to explain his failure to attend. And it could reasonably be inferred from his absence, as well as from the drawn-out history of the litigation (see note 2, supra),9 that petitioner had been deliberately proceeding in dilatory fashion.
12
There is certainly no merit to the contention that dismissal of petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have 'notice of all facts, notice of which can be charged upon the attorney.' Smith v. Ayer, 101 U.S. 320, 326, 25 L.Ed. 955.10
13
We need not decide whether unexplained absence from a pretrial conference would alone justify a dismissal with prejudice if the record showed no other evidence of dilatoriness on the part of the plaintiff. For the District Court in this case relied on all the circumstances that were brought to its attention, including the earlier delays.11 And while the Court of Appeals did not expressly rest its judgment on petitioner's failure to prosecute, it nonetheless set out the entire history of the case (including the statement made by the district judge's secretary that it was 'the oldest civil case on the court docket'), noted that the District Court had considered the absence at the pretrial conference in light of 'the history of this litigation' and 'of all the circumstances surrounding counsel's action in the case,' 291 F.2d at 545, and held that there was no abuse of discretion in dismissing the action 'under the circumstances of this case.' Id., at 546. This obviously amounts to no broader a holding than that the failure to appear at a pretrial conference may, in the context of other evidence of delay, be considered by a District Court as justifying a dismissal with prejudice.12
14
Nor need we consider whether the District Court would have been abusing its discretion had it rejected a motion under Rule 60(b) which was accompanied by a more adequate explanation for the absence of petitioner's counsel from the pretrial conference. No such motion was ever made, so that there is nothing in the record before us to indicate that counsel's failure to attend the pretrial conference was other than deliberate or the product of neglect.
15
Finally, this is not a case in which failure to comply with a court order 'was due to inability fostered neither by * * * (petitioner's) own conduct nor by circumstances within its control.' Societe Internationale Pour Participations Industrielles Et Commercials, S.A. v. Rogers, 357 U.S. 197, 211, 78 S.Ct. 1087, 1095, 2 L.Ed.2d 1255. Petitioner's counsel received due notice of the scheduling of the pretrial conference, and cannot now be heard to say that he could not have foreseen the consequences of his own default in attendance.
16
Affirmed.
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 DOUGLAS dissents.
20
Mr. Justice BLACK, with whom THE CHIEF JUSTICE concurs, dissenting.
21
I think that the order of the District Court dismissing this case has no sound basis in law, in fact or in justice. The petitioner William Link brought an action to recover damages for alleged serious and permanent injuries suffered in a collision between his truck and a train operated by the respondent Wabash Railroad Company. The District Court dismissed that action without notice of any kind to the plaintiff Link or to his lawyer shortly after the lawyer failed to appear at a scheduled pretrial conference without what the trial judge regarded as an adequate excuse. The order of dismissal apparently purports to end petitioner's lawsuit and bar forever his right to recover compensation for his injuries.1 Under these circumstances, I think Judge Schnackenberg was entirely correct in his dissent to the opinion of the majority on the Court of Appeals for the Seventh Circuit upholding the dismissal when he said:
22
'The order now affirmed has inflicted a serious injury upon an injured man and his family, who are innocent of any wrongdoing. Plaintiff's cause of action * * * was his property. It has been destroyed. The district court, to punish a lawyer, has confiscated another's property without process of law, which offends the constitution. A district court does not lack disciplinary authority over an attorney and there is no justification, moral or legal, for its punishment of an innocent litigant for the personal conduct of his counsel. Because it was neither necessary nor proper to visit the sin of the lawyer upon his client, I would reverse.'2
23
As I understand the opinion of the Court here, it upholds the District Court's dismissal order upon the ground of 'want of prosecution' and 'dilatoriness on the part of the plaintiff,' making it unnecessary, as the Court views the case, to 'decide whether unexplained absence from a pretrial conference would alone justify a dismissal with prejudice * * *.' I do not think that there is any basis in the record to support a dismissal of this case for 'want of prosecution,' for 'dilatoriness on the part of the plaintiff' or for any other reason. In the first place, it seems to me that the Court is in error when it suggests that both the District Court and the Court of Appeals relied on all the circumstances of this case, including its 'earlier delays,' to justify its dismissal with prejudice. It is true that the trial judge, though expressly basing his order entirely upon the failure of petitioner's lawyer to appear at the pretrial conference,3 did mention the earlier history of the case as a ground for his action in a conversation with the respondent's lawyer just before the dismissal. But as I read the Court of Appeals' opinion, it neither relied upon nor even considered such a ground to support its judgment. The opening statement of the Court of Appeals' opinion certainly treated the case as resting not upon any general want of prosecution but instead wholly upon the failure of the lawyer to appear: 'This is an appeal by plaintiff from an order of the district court entered October 12, 1960 dismissing this cause of action for failure of plaintiff's counsel to appear in court for a pre-trial conference scheduled for hearing on that date.'4 From this opening statement to the end of the majority opinion, I think that every argument and sentence in that opinion is directed to supporting the Court of Appeals' conclusion that the District Court had power to dismiss the case not for any 'want of prosecution' but solely 'as a sanction for disobedience of a court order.'5 Indeed, the only reference to 'want of prosecution' in the Court of Appeals' entire opinion is a parenthetical one to describe that court's holding in another case, Darlington v. Studebaker-Packard Corp., 7 Cir., 261 F.2d 903 'where we upheld the dismissal of a cause under another local rule * * *.'6 The plain import of the Court of Appeals' opinion is, to my mind, starkly revealed when its refusal to rely upon any theory of 'want of prosecution' is considered in connection with the emphatic statements of Judge Schnackenberg in dissent: 'Defendant's counsel makes no effort to rely upon want of prosecution as a ground for the involuntary dismissal. Obviously defendant is in no position to make such a contention, inasmuch as it caused the district court to vacate the order setting the case for trial on July 22, 1959, and continue the case.'7 It is impossible for me to believe that the majority of the Court of Appeals would have left this statement unchallenged if they had wanted to place any reliance at all upon 'want of prosecution,' 'dilatoriness on the part of the plaintiff,' or any ground other than their desire to approve a sanction upon Link's lawyer for his failure to appear at the pretrial conference.
24
Secondly, I think that this Court's decision to ignore the single ground upon which I believe that the Court of Appeals rested and to resurrect the 'want of prosecution' theory from the trial court colloquy is wrong because this case has been a very live one from the date it was filed right up to this very moment. It is true that the case when dismissed had been pending for a long time, that is, from August 24, 1954, to the date of dismissal, October 12, 1960. But during this entire period of time, motions and activities of various kinds both by the lawyers and by the trial judge were taking place in the court. Certainly it would be impossible for anyone to suggest that the plaintiff Link or his lawyer was responsible for the first three years of delay in the trial of the case. If responsibility is to be placed upon anyone for that delay, it must be placed upon the lawyers for the defendant and upon the trial judge. One month after the lawsuit was filed the defendant appeared and answered the complaint. Some months later the defendant filed a motion for judgment on the pleadings, arguing that the complaint failed to state a cause of action. On November 30, 1955, more than a year after the case was filed, the district judge granted the motion for judgment on the pleadings and entered his firat dismissal of the case. On October 10, 1956, however, the Court of Appeals for the Seventh Circuit, in an opinion by Judge Schnackenberg, reversed this dismissal and remanded the case for trial.8 The railroad then asked this Court to grant certiorari and review the Court of Appeals' holding but, on February 25, 1957, we denied certiorari.9 At this stage, the case had been delayed for almost three years by an erroneous ruling of the trial judge made at the instance of the defendant's lawyers.
25
Upon remand, the District Court set the case for hearing on July 17, 1957, but this order was vacated and the cause continued 'on motion of the plaintiff, and defendant not objecting * * *.' This continuance of the case by agreement between the plaintiff and the defendant of course provides not even a scintilla of evidence to support a dismissal for want of prosecution. Two months later, in an effort to buttress its defense for the approaching trial on the merits, the railroad filed interrogatories which the plaintiff answered. It is true that these interrogatories were not answered until some 19 months after they were filed. But there is no indication in the record that the defendant tried to get the interrogatories answered earlier. And every trial lawyer knows that the failure of a lawyer to answer interrogatories designed to solicit answers to be used against his client before those answers are demanded by the party filing the interrogatories is nothing more than a normal trial tactic of a lawyer who is trying to win the case for his client. On February 24, 1959, the trial judge on his own motion issued notice to the parties that he would dismiss the case for the second time on March 25, 1959, unless he ordered otherwise. After holding hearings on that date, however, and considering the arguments of counsel, the trial judge entered on June 4, 1959, an order retaining the case on his docket and setting it for trial on July 22, 1959. This action of the court in retaining the case on its docket shows that the trial judge certainly did not think at that time that the case was not being prosecuted. But before the case could be tried on July 22, the judge granted another continuance, this time at the request of the defendant with the plaintiff not objecting. Although this continuance at the request of the defendant, like the previous three-year delay directly attributable to the defendant and the court, doubtless contributed to the age of this case on the court's docket, I do not suppose (although I am not certain) that it is one of the 'circumstances' which the Court refers to as justifying the dismissal of the case. On March 11, 1960, six years after this lawsuit was filed, the defendant's lawyers filed still more interrogatories for plaintiff to answer. One month and four days later after an extension of time granted by the trial court, these interrogatories were answered. This certainly does not seem like an extraordinary delay in answering interrogatories which apparently had taken the defendant six years to conceive and prepare.
26
Five months after the plaintiff answered defendant's March 11 interrogatories, the trial judge, again on his own motion, issued notice scheduling a pretrial conference on October 12, 1960. This was the pretrial conference at which petitioner's lawyer failed to appear. But even that failure showed no inclination on the part of the plaintiff or his lawyer to abandon the lawsuit, for the lawyer called the clerk of the District Court over long-distance telephone and also talked to the trial judge's secretary on the morning of the day of the conference to explain why he could not be present on October 12 and to urge that the pretrial conference be passed over to the next day, October 13, to give him a chance to be present. It is true that the trial judge later refused to accept the lawyer's explanation and this ruling, if correct, indicates that the lawyer may have been guilty of some kind of breach of his responsibility to his client and to the court. It does not indicate, however, and it cannot by any stretch of the imagination be made to indicate that the lawyer, much less the plaintiff himself, was acting in the way people do who let their lawsuits die for 'want of prosecution.' The record shows that neither the lawyer nor the plaintiff himself was given any sort of notice by the judge or by his secretary that the request for a one-day postonement would be denied, even though the defendant's request for indefinite postponement had been granted only three months earlier. Nor did the lawyer or the plaintiff receive any notice that a failure to appear at the pretrial conference would result in the drastic sanction of dismissal of the case.10 And I think that nothing short of clairvoyance would have enabled either of them to anticipate that this Court, or any court, would approve dismissal of the case for 'want of prosecution.'
27
Under the foregoing facts, it seems to me that it inflicts the grossest kind of injustice upon this petitioner to uphold dismissal of his case on the ground that it was not being prosecuted. Of course it was. Counsel for both parties apparently were doing the best they could to bring the case to a successful conclusion for their respective clients. The 'earlier delays' preceding the plaintiff's lawyer's failure to appear at the pretrial hearing, far from showing a 'want of prosecution,' actually strengthen the conclusion that the case was being prosecuted because by far the greater part of these delays was due to steps that were being taken in furtherance of the litigation. Only the two continuances in the case, one at the request of counsel for the plaintiff and the second at the request of counsel for the defendant, created delays not obviously related to that end. And if these delays are to be punished, I see no reason why the punishment should be limited to the plaintiff and his lawyer. I must say that it appears to me to be a sort of unequal justice that would punish the plaintiff or even his lawyer for 'earlier delays' which undoubtedly were due in major part to an erroneous ruling of the trial judge with regard to the sufficiency of the pleadings, a continuance of the trial brought about at the request of the defendant, and the several motions that the defendant's counsel made along through the years in connection with interrogatories and additional interrogatories which were to be used for no purpose other than to defeat the plaintiff's actively prosecuted lawsuit.
28
Even assuming in the face of these plain facts, however, that all the blame for the six years' delay in this case could be laid at the feet of plaintiff's lawyer, it seems to me to be contrary to the most fundamental ideas of fairness and justice to impose the punishment for the lawyer's failure to prosecute upon the plaintiff who, so far as this record shows, was simply trusting his lawyer to take care of his case as clients generally do. The Court dismisses this whole question of punishing the plaintiff Link for the alleged fault of his lawyer with the simple generalized statement: 'Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent.'11 One may readily accept the statement that there are circumstances under which a client is responsible for the acts or omissions of his attorney. But it stretches this generalized statement too far to say that he must always do that. This case is a good illustration of the deplorable kind of injustice that can come from the acceptance of any such mechanical rule.
29
Link filed an action in court, as was his right, alleging the infliction of serious injuries upon him by the railroad for which he sought damages. His case was delayed for three years because of the trial judge's erroneous ruling on a question of the technical sufficiency of the complaint, a ruling which, if it had not been reversed, would have frustrated the plaintiff's right to a trial on the merits. This ruling of course should never have been made, for it was plainly inconsistent with the whole philosophy underlying the modern liberal rules of procedure which govern civil trials in the federal courts. When the Court of Appeals upheld the complaint, reversed the trial court and remanded the case for trial, the parties engaged in a number of activities obviously designed to bring the case to trial. On at least two separate occasions, the plaintiff himself was called upon to respond to interrogatories submitted by the railroad. Under these circumstances, the plaintiff simply had no way of knowing that there was even the slightest danger that his potentially valuable lawsuit was going to be thrown out of court because of some default on the part of his lawyer. Quite the contrary, the plaintiff had every reason to believe that his lawyer, who had obtained reversal of the trial judge's first erroneous order of dismissal in the Court of Appeals, was eminently well qualified to represent his interests and would do his best to win the lawsuit.
30
There surely can be no doubt that if the plaintiff's lawyer had gone into court without authority and asked the court to dismiss the case so as to bar any future suit from being filed, this Court would repudiate such conduct and give the plaintiff a remedy for the wrong so perpetrated against him. Or had the trial judge here, instead of putting an end to plaintiff's substantial cause of action, simply imposed a fine of several thousand dollars upon the plaintiff because of his lawyer's neglect, I cannot doubt that this Court would unanimously reverse such an unjust penalty. The result actually reached here, however, is that this Court condones a situation no different in fact from either of those described above. The plaintiff's cause of action is valuable property within the generally accepted sense of that word, and, as such, it is entitled to the protections of the Constitution. Due process requires that property shall not be taken away without notice and hearing. I do not see how the result here can be squared with that fundamental constitutional requirement.
31
Moreover, to say that the sins or faults or delinquencies of a lawyer must always be visited upon his client so as to impose tremendous financial penalties upon him, as here, is to ignore the practicalities and realities of the lawyer-client relationship.12 Lawyers everywhere in this country are granted licenses presumably because of their skill, their integrity, their learning in the law and their dependability. While there may be some clients sophisticated enough in the affirs of the world to be able to select the good from the bad among this mass of lawyers throughout the country, this unfortunately cannot always be the case. The average individual called upon, perhaps for the first time in his life, to select a lawyer to try a lawsuit may happen to choose the best lawyer or he may happen to choose one of the worst. He has a right to rely at least to some extent upon the fact that a lawyer has a license. From this he is also entitled to believe that the lawyer has the ability to look out for his case and that he should leave the lawyer free from constraint in doing so. Surely it cannot be said that there was a duty resting upon Link, a layman plaintiff, to try to supervise the daily professional services of the lawyer he had chosen to represent him. How could he know, even assuming that it is true, that his lawyer was a careless man or that he would have an adverse effect upon the trial judge by failing to appear when ordered? How could he know or why should he be presumed to know that it was his duty to see that the many steps a lawyer needs to take to bring his case to trial had been taken by his lawyer? Why should a client be awakened to his lawyer's incapacity for the first time by a sudden brutal pronouncement of the court: 'Your lawyer has failed to perform his duty in prosecuting your case and we are therefore throwing you out of court on your heels'? So far as this record shows, the plaintiff never received one iota of information of any kind, character or type that should have put him on notice as an ordinary layman that his lawyer was not doing his duty.13
32
Any general rule that clients must always suffer for the mistakes of their lawyers simply ignores all these problems. If a general rule is to be adopted, I think it would be far better in the interest of the administration of justice, and far more realistic in the light of what the relationship between a lawyer and his client actually is, to adopt the rule that no client is ever to be penalized, as this plaintiff has been, because of the conduct of his lawyer unless notice is given to the client himself that such a threat hangs over his head. Such a rule would do nothing more than incorporate basic constitutional requirements of fairness into the administration of justice in this country.
33
The Court seems to find some reason for holding that this plaintiff can be penalized without notice because of a program certain courts have adopted to end congestion on their dockets by setting down long-pending cases for trial. It is of course desirable that the congestion on court dockets be reduced in every way possible consistent with the fair administration of justice. But that laudable objective should not be sought in a way which undercuts the very purposes for which courts were created—that is, to try cases on their merits and render judgments in accordance with the substantial rights of the parties. Where a case has so little merit that it is not being prosecuted, a trial court can of course properly dispose of it under fair constitutional procedures. There is not one fact in this record, however, from which an inference can be drawn that the case of Link against the Wabash Railroad Company is such a case. When we allow the desire to reduce court congestion to justify the sacrifice of substantial rights of the litigants in cases like this, we attempt to promote speed in administration, which is desirable, at the expense of justice, which is indispensable to any court system worthy of its name.
34
Moreover, it seems plain to me that any attempt to cut down on court congestion by dismissing meritorious lawsuits is doomed to fail even in its misguided purpose of promoting speed in judicial administration. Litigants with meritorious lawsuits are not likely to accept unfair rulings of that kind without exhausting all available appellate remedies. Consequently, any reduction of trial court dockets accomplished by such dismissals will be more than offset by the increased burden on appellate courts. This case seems to me an excellent example of the sort of wholly unnecessary waste of judicial resources which can result from such overzealous protection of trial court dockets. The case has twice been before the Court of Appeals and has twice been brought to this Court as a result of 'time-saving' ruling handed down by the trial judge.
35
It is true that by its ruling today the Court finally puts an end to this case and thus clears it from all federal dockets. But in view of the fact that the merits of the case have never been reached, I cannot believe that there should be too much rejoicing at this fact. The end result of the procedures adopted here has been that much time has been wasted and yet no justice has been done. I find it highly regrettable that the Court feels compelled to place its stamp of approval upon such procedures.
36
It may not be of much importance to anyone other than the plaintiff here and his family whether this case is tried on its merits or not. To my mind, however, it is of very great importance to everyone in this country that we do not establish the practice of throwing litigants out of court without notice to them solely because they are credulous enough to entrust their cases to lawyers whose names are accredited as worthy and capable by their government. I fear that this case is not likely to stand out in the future as the best example of American justice.
1
See note 2, infra.
2
A history of the litigation appears in the opinion of the Court of Appeals:
'On August 24, 1954, plaintiff William Link filed his complaint in the district court against defendant The Wabash Railroad Company to recover damages for injuries alleged to have been sustained by him when he drove an automobile into a collision with defendant's train standing across a highway in Indiana.
'On September 17, 1954, defendant appeared and filed its answer to the complaint.
'On April 30, 1955, defendant filed its motion for judgment on the pleadings. On October 18, 1955, hearing was had on this motion. On November 30, 1955, the district court granted defendant's motion for judgment on the pleadings and ordered the cause dismissed. From this order of dismissal plaintiff appealed. On October 10, 1956, our court reversed and remanded the case for trial. * * * 7 Cir., 1956, 237 F.2d 1, certiorari denied 352 U.S. 1003, 77 S.Ct. 563, 1 L.Ed.2d 548 (February 25, 1957). On March 13, 1957, the mandate from this court was filed in the district court.
'Subsequently, the trial court set the case for trial for July 17, 1957. On June 27, 1957, on motion of plaintiff and defendant not objecting, the trial date of July 17, 1957 was vacated; and the cause was continued.
'On August 17, 1957, defendant filed interrogatories for plaintiff to answer.
'On February 24, 1959, the trial court on its own initiative gave notice to the parties, pursuant to Local Rule 11 ((now Rule 10) footnote omitted), that the cause would be dismissed on March 25, 1959, unless the court ordered otherwise.
'On March 24, 1959, plaintiff filed answers to defendant's interrogatories.
'On March 25, 1959, hearing was had on the show cause order, and on June 4, 1959 the trial court entered an order retaining the case on the docket and setting it for trial for July 22, 1959.
'On July 2, 1959, on defendant's motion, to which plaintiff agreed, the trial date of July 22, 1959 was vacated; and the case was continued.
'On March 11, 1960, defendant filed additional interrogatories for plaintiff to answer. On April 15, 1960, after an extension of time granted by the trial court, plaintiff filed answers to the additional interrogatories.
'On September 29, 1960, pursuant to Local Rule 12, effective March 1, 1960, the district court caused notice to be mailed to counsel for both parties scheduling a pre-trial conference in this case to be held in court on October 12, 1960, at 1:00 o'clock p.m.' 291 F.2d, at 543—544.
3
See Fed.Rules Civ.Proc., 41(b), 28 U.S.C.A., 370 U.S., p. 630, 82 S.Ct., p. 1388, infra.
4
E.g., Cage v. Cage, 5 Cir., 74 F.2d 377; Carnegie National Bank v. City of Wolf Point, 9 Cir., 110 F.2d 569; Hicks v. Bekins Moving & Storage Co., 9 Cir., 115 F.2d 406; Zielinski v. United States, 2 Cir., 120 F.2d 792; American National Bank & Trust Co. of Chicago v. United States, 79 U.S.App.D.C. 62, 142 F.2d 571; Shotkin v. Westinghouse Elec. & Mfg. Co., 10 Cir., 169 F.2d 825; Slavitt v. Meader, 107 U.S.App.D.C. 396, 278 F.2d 276.
5
See, e.g., Des Moines Union R. Co. v. District Court, 170 Iowa 568, 153 N.W. 217; Doughty v. Terminal R. Ass'n, 291 S.W.2d 119 (Mo.); Frytez v. Gruchacz, 125 N.J.L. 630, 17 A.2d 541; Reed v. First National Bank, 194 Or. 45, 241 P.2d 109; Moshannon National Bank v. Iron Mountain Ranch Co., 45 Wyo. 265, 18 P.2d 623, 21 P.2d 834; cf. Hartford Accident & Indemnity Co. v. Sorrells, 50 Ariz. 90, 69 P.2d 240; Thompson v. Foote, 199 Ark. 474, 134 S.W.2d 11; Koon v. Barmettler, 134 Colo. 221, 301 P.2d 713.
6
The issue in that case was whether a plaintiff was entitled to recover interest on a refund claim for customs duties paid under protest. In holding that interest for a 29-year period during which the suit remained dormant should not have been allowed, Mr. Justice Matthews, speaking for a unanimous Court, said: 'This delay in prosecution would certainly have justified the court in dismissing the action on its own motion.'
7
In the more populous districts, where calendar congestion has become a severe problem, the District Courts, acting on their own initiative, have from time to time established special call calendars of 'stale' cases for the purpose of dismissing those as to which neither adequate excuse for past delays nor reason for a further continuance appears. See, for example, the local rules of the following District Courts: Alaska Rule 16; Ariz. Rule 14; N.D.Cal. Rule 14; S.D.Cal. Rule 10(d); Colo. Rule 24; Conn. Rule 15; Del. Rule 12; D.C. Rule 13; N.D.Fla. Rule 7; S.D.Fla. Rule 11; N.D.Ga. Rule 13(c); Idaho Rule 8(c); E.D.Ill. Rule 9; N.D.Ill. Gen.Rule 21; N.D.Ind. Rule 10; S.D.Ind. Rule 16; N.D.Iowa Rule 22; S.D.Iowa Rule 22; Kan. Rule 13; E.D.La. Gen.Rule 12; Me. Rule 15; Mass. Rule 12; W.D.Mich. Rule 8; Minn. Rule 3(3); E.D.Mo. Rule 8(g); Neb. Rule 18; Nev. Rule 9(b); N.J. Rule 12; N.M. Rule 13; E.D.N.Y. Gen.Rule 23; N.D.N.Y. Gen.Rule 11; S.D.N.Y. Gen.Rule 23; W.D.N.Y. Gen.Rule 11; N.D.Ohio Rule 6; S.D.Ohio Rule 8; E.D.Okla. Rule 12; E.D.Pa. Rule 18; M.D.Pa. Rule 21—A; S.Dak. Rule 9, § 4; S.D.Tex. Gen.Rule 22; Utah Rule 4(c); E.D.Wash. Rule 23(a); W.D.Wash. Rule 41; N.D.W.Va. Art. II, Rule 8; S.D.W.Va. Rule 8; E.D.Wis. Rule 11; E.D.Wis. Rule 15; Wyo. Rule 14.
8
Petitioner's contention that the District Court could not act in the conceded absence of any local rule covering the situation here is obviously unsound. Federal Rule of Civil Procedure 83 expressly provides that 'in all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules.' In light of what has already been said we find no such inconsistency here.
9
The record shows that this was the 'oldest' case on the District Court's civil docket.
10
Clients have been held to be bound by their counsels' inaction in cases in which the inferences of conscious acquiescence have been less supportable than they are here, and when the consequences have been more serious. See, e.g., United States ex rel. Reid v. Richmond, 2 Cir., 295 F.2d 83, 89—90; Egan v. Teets, 9 Cir., 251 F.2d 571, 577 n. 9; United States v. Sorrentino, 3 Cir., 175 F.2d 721. Surely if a criminal defendant may be convicted because he did not have the presence of mind to repudiate his attorney's conduct in the course of a trial, a civil plaintiff may be deprived of his claim if he failed to see to it that his lawyer acted with dispatch in the prosecution of his lawsuit. And if an attorney's conduct falls substantially below what is reasonable under the circumstances, the client's remedy is against the attorney in a suit for malpractice. But keeping this suit alive merely because plaintiff should not be penalized for the omissions of his own attorney would be visiting the sins of plaintiff's lawyer upon the defendant. Moreover, this Court's own practice is in keeping with this general principle. For example, if counsel files a petition for certiorari out of time, we attribute the delay to the petitioner and do not request an explanation from the petitioner before acting on the petition.
11
The history of the case belies any suggestion that the delay was the fault of the defendant or solely of the district judge who first ruled erroneously on the motion for judgment on the pleadings. After the mandate of the Court of Appeals was filed with the District Court, the trial date that was set was vacated on the plaintiff's motion. Thereafter, the plaintiff failed to answer the defendant's interrogatories from August 17, 1957, until the day before the hearing on the order to show cause why the case should not be dismissed for want of prosecution—which was more than 19 months later. Although the next delay was occasioned by the defendant's motion, it was consented to by the plaintiff and there is no showing whatever that plaintiff ever made any effort to bring the case to trial. In fact, when the defendant submitted further interrogatories, plaintiff again moved to have the time to answer extended. Against this background, it is hardly surprising that the District Court concluded that the failure to appear for a pretrial conference was merely another delaying tactic.
12
Even if the judgment of the Court of Appeals rested on the ground that counsel's 'failure' to attend the pretrial conference sufficed by itself to justify the dismissal, it is our duty, without reaching the broader question, to sustain the District Court on its narrower holding if, as we decide, that holding was correct. E.G., Walling v. General Industries Co., 330 U.S. 545, 547, 67 S.Ct. 883, 884, 91 L.Ed. 1088; Langnes v. Green, 282 U.S. 531, 536—537, 51 S.Ct. 243, 245, 75 L.Ed. 520; United States v. American Railway Express Co., 265 U.S. 425, 435—436, 44 S.Ct. 560, 563, 68 L.Ed. 1087; see Securities & Exchange Comm. v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626.
1
Since the order of dismissal here did not specify that it was without prejudice to the plaintiff's right to reinstitute the action, the dismissal operates as a judgment on the merits if Rule 41(b) of the Federal Rules of Civil Procedure applies. Of course, if Rule 41(b) is not the source of the power exercised here, as this Court seems to say, the order of dismissal would still end plaintiff's chance of recovery because his cause of action is now barred by the statute of limitations.
2
291 F.2d 542, 548.
3
The order of dismissal stated as follows: 'Pursuant to the inherent powers of the Court, and upon failure of plaintiff's counsel to appear at a pre-trial, which was scheduled for today, October 12, 1960, at 1:00 o'clock, pursuant to notice, under Rule 12, counsel having failed to give any good and sufficient reason for not appearing at said pre-trial, the cause is now dismissed.'
4
291 F.2d, at 543.
5
Id., at 546. It is true that the Court of Appeals set out the history of the case but it made no attempt to rely upon that history to justify its judgment of affirmance. Its reference to the 'circumstances' of the case quoted in the Court's opinion simply cannot be magnified to indicate any such reliance.
6
Id., at 545. (Emphasis supplied.)
7
Id., at 547.
8
237 F.2d 1.
9
352 U.S. 1003, 77 S.Ct. 563, 1 L.Ed.2d 548.
10
Thus, even under the Court's theory that a client must always be charged with "notice of all facts, notice of which can be charged upon the attorney," the plaintiff here cannot be charged with notice that his lawsuit would be dismissed upon the failure of his lawyer to appear at the pretrial conference.
11
The Court does cite three cases in an effort to support this general proposition but none of those cases even suggests so harsh and expansive a rule. Moreover, they deal with situations so far removed from that presented here that their inapplicability as precedent for the conclusion reached in this case is apparent. United States ex rel. Reid v. Richmond, 2 Cir., 295 F.2d 83, and United States v. Sorrentino, 3 Cir., 175 F.2d 721, were criminal cases in each of which the defendant sought to upset his conviction on the ground that his lawyers had exercised poor judgment in handling one of the multitude of decisions that have to be made in the trial of every lawsuit. Reid's lawyers had failed to make an objection to one piece of evidence. The Court of Appeals, finding that this action 'had much to commend it' as trial strategy, held that any objection to the evidence must be considered waived and that 'Reid must be bound by what his lawyers did and his acquiescence in that course by his own testimony.' 295 F.2d, at 89—90. Even this holding provoked sharp dissent: 'A holding that counsel assigned an accused may waive him into the electric chair seems in any event dubious.' Id., at 90—91. Sorrentino's lawyers waived his right to object to an order of the trial judge reducing the number of spectators at his trial. The Court of Appeals held that Sorrentino was bound by this waiver, saying: 'Sorrentino did not at any time indicate to the court that he was not fully satisfied with the action which the trial judge had thus taken with his counsel's consent. It must, therefore, be concluded that he acquiesced in his counsel's judgment that his interests would not be prejudiced and indeed might be served by the reduction which the court ordered in the number of spectators at the trial.' 175 F.2d, at 723—724. Certainly no one could say of Link, as it was said of Sorrentino, that 'his interests would not be prejudiced and indeed might be served' by the dismissal of his case. Egan v. Teets, 9 Cir., 251 F.2d 571, involved an allegation that the defendant's original appeal papers had been suppressed and the court held merely that the failure of the defendant's counsel to raise this point in the state courts after the defendant himself knew of the alleged suppression plus the failure of the defendant to offer any explanation for not raising the point in the state courts must be taken as waiving the point. 251 F.2d, at 576—577. Here, it cannot be suggested that plaintiff's counsel has waived the plaintiff's right to have his lawsuit tried, since he has been holding on tenaciously to that right for eight years, four of which have been spent in trying to get the Court of Appeals and this Court to force the trial judge to give him a trial on the merits. Certainly, nothing in the opinion in Egan suggests that if the defendant had been able to allege and prove that his appeal papers had been suppressed by wrongful conduct on the part of his lawyer, he would nonetheless be bound by that conduct.
12
I am not quite able to understand the Court's suggestion that 'keeping this suit alive * * * would be visiting the sins of plaintiff's lawyer upon the defendant.' I do not see how it can be regarded as a punishment to compel a person to try his lawsuit on its merits before an impartial judicial tribunal established under and operating in accordance with the Constitution of the United States.
13
The Court's suggestion that petitioner might have been able to file a motion under Rule 60(b) 'accompanied by a more adequate explanation for the absence of petitioner's counsel from the pretrial conference' is no answer at all to the problem presented by the plaintiff's lack of notice. Whether the lawyer had 'a more adequate explanation' or not, I think the plaintiff himself is entitled to due process before his property is taken from him.
| 89
|
370 U.S. 713
82 S.Ct. 1294
8 L.Ed.2d 794
IDLEWILD BON VOYAGE LIQUOR CORPORATION, Petitioner,v.Martin C. EPSTEIN et al. IDLEWILD BON VOYAGE LIQUOR CORPORATION, Petitioner, v. Honorable Alexander BICKS et al., Judges of the United States District Courtfor the Southern District of New York.
Nos. 138, 180, Misc.
Argued Feb. 28, 1962.
Decided June 25, 1962.
Charles H. Tuttle, New York City, for petitioner.
Julius L. Sackman, Albany, for respondent.
PER CURIAM.
1
The petitioner is in the business of selling bottled wines and liquors for export from the United States and delivery to international airline passengers at their overseas destinations. Upon advice of the Attorney General of New York, the State Liquor Authority informed the petitioner that its business was illegal under the provisions of the New York Alcoholic Beverage Control Law. The petitioner then instituted an action in the United States District Court for the Southern District of New York against the respondents, members of the State Liquor Authority. The complaint asked for a judgment declaring that the state statutes, as applied, were repugnant to the Commerce Clause, the Export-Import Clause, and the Supremacy Clause of the United States Constitution, and for an injunction restraining the State Liquor Authority from interfering with the petitioner's business.
2
A request for a three-judge court under 28 U.S.C. §§ 2281, 2284, 28 U.S.C.A. §§ 2281, 2284, was denied. Instead, the district judge to whom the request was presented simply retained jurisdiction of the cause, in order to give the state courts an opportunity to pass upon the constitutional issues presented, although there was no relevant litigation then pending in the state courts. D.C., 188 F.Supp. 434.
3
The petitioner appealed to the Court of Appeals for the Second Circuit.1 That court dismissed the appeal, one judge dissenting. 2 Cir., 289 F.2d 426. Unambiguously stating its opinion that the District Court had acted erroneously, and that 'a three-judge district court should have been convened,' the Court of Appeals was nevertheless of the view that it was powerless to take formal corrective action in light of this Court's decision in Stratton v. St. Louis S.W.R. Co., 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135.2
4
Thereafter the petitioner once again filed a motion in the District Court requesting that a statutory three-judge court be impaneled. The request was again refused upon the ground that the previous ruling made by other judges of the District Court had established 'the law of this case,' and that the Court of Appeals' opinion that a three-judge court should be appointed was merely a 'dictum.' D.C., 194 F.Supp. 3. We granted certiorari and a motion for leave to file a petition for a writ of mandamus. 368 U.S. 812, 82 S.Ct. 39, 7 L.Ed. 21.
5
We agree with the Court of Appeals that a three-judge court should have been convened in this case. When an application for a statutory three-judge court is addressed to a district court, the court's inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute. Those criteria were assuredly met here, and the applicable jurisdictional statute therefore made it impermissible for a single judge to decide the merits of the case, either by granting or by withholding relief.3
6
In the Stratton case it was held that a court of appeals was precluded from reviewing on the merits a case which should have originally been determined by a court of three judges. Stratton does not stand for the broad proposition that a court of appeals is powerless ever to give any guidance when a single judge has erroneously invaded the province of a three-judge court. The Court of Appeals clearly stated its opinion that a court of three judges ought to have been convened to consider this litigation. That view was correct and should have been followed upon the petitioner's renewed motion that such a statutory court be impaneled.
7
We deem it unnecessary to take formal action on the petition for a writ of mandamus. The case will be remanded to the District Court for expeditious action consistent with the views here expressed. Cf. Bailey v. Patterson, 369 U.S. 31, 34, 82 S.Ct. 549, 7 L.Ed.2d 512. It is so ordered.
8
Case remanded.
9
Mr. Justice FRANKFURTER took no part in the decision of these cases.
10
Mr. Justice HARLAN and Mr. Justice WHITE took no part in the consideration or decision of these cases.
1
During the pendency of the appeal another judge of the District Court for the Southern District of New York issued a temporary injunction restraining the respondents from harassing the petitioner's business, but, relying on the original judge's order, refused a renewed request for a three-judge court.
2
The Court of Appeals properly rejected the argument that the order of the District Court 'was not final and hence unappealable under 28 U.S.C. §§ 1291, 1292,' pointing out that '(a)ppellant was effectively out of court.' 289 F.2d at 428.
3
This is not a case like Chicago, Duluth & Georgian Bay Transit Co. v. Nims, 6 Cir., 252 F.2d 317, where a three-judge court was requested only in the event that it should first be held that the state statute was by its terms applicable to the plaintiff's business operations.
| 89
|
370 U.S. 405
82 S.Ct. 1354
8 L.Ed.2d 590
UNITED STATES of America, Appellant,v.Raymond J. WISE.
No. 488.
Argued April 16, 1962.
Decided June 25, 1962.
Robert L. Wright, Fort Worth, Tex., for appellant.
John T. Chadwell, Chicago, Ill., for appellee.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
A grand jury returned an indictment charging the National Dairy Products Corporation with engaging 'in a combination and conspiracy to eliminate price competition in the sale of milk in the Greater Kansas City market in unreasonable restraint of * * * trade and commerce, in violation of Section 1' of the Sherman Act, 15 U.S.C. § 1, 15 U.S.C.A. § 1. Two counts incorporated by reference the alleged illegal acts of the corporation and named the appellee as codefendant. In a bill of particulars the Government charged that the appellee had 'been acting solely in his capacity as an officer, director, or agent who authorized, ordered, or did some of the acts' constituting the violation. The appellee moved for a dismissal on the ground that the indictment, as particularized by the bill, failed to charge a crime. According to appellee, the Sherman Act does not apply to corporate officers acting in a representative capacity; he contends that the statute exclusively applicable to these officers is § 14 of the Clayton Act, 15 U.S.C. § 24, 15 U.S.C.A. § 24. Over the Government's opposition the dismissal was ordered by the district judge. 196 F.Supp. 155. An appeal was perfected pursuant to 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, and we noted probable jurisdiction. 368 U.S. 945, 82 S.Ct. 387, 7 L.Ed.2d 342.
2
Although the Sherman Act has been in existence for over 70 years and although corporate officers have been indicted under that Act for almost as long, see, e.g., United States v. Greenhut, 50 F. 469 (D.C.D. Mass.1892); United States v. Patterson, 55 F. 605 (D.C.D. Mass.1893),1 this question is one of first impression for this Court. The impetus for raising this issue at such a late date comes from the fact that in 1955 the Congress raised the penalty provision in the Sherman Act from $5,000 to $50,000 without making a corresponding increase in the $5,000 penalty found in the Clayton Act.
3
Section 1 of the Sherman Act imposes criminal sanctions upon 'every person' who violates that provision, 15 U.S.C. § 1, 15 U.S.C.A. § 1.2 The Government contends that a corporate officer is obviously a 'person' within the Act. The appellee, however, distinguishes between a corporate officer who represents his corporation and one who acts on his own account. In the latter case the appellee agrees that the Sherman Act applies. But, when the officer is acting solely for his corporation, the appellee contends that he is no longer a 'person' within the Act. The rationale for this distinction is that the activities of an officer, however illegal and culpable, are chargeable to the corporation as the principal but not to the individual who perpetrates them.
4
No substantial support for such an artificial interpretation of a seemingly clear statute is provided by the legislative history. The most that can be said for the appellee's position is that the Reagan Bill, an unsuccessful competitor of the Sherman Bill, specifically included corporate officers in its penal section while the Sherman Bill had no penal section at one time. The penal provision of the Reagan Bill was offered as an amendment to the Sherman Bill, and the Senate Committee on the Judiciary then redrafted and resubmitted a bill in the form which became the Sherman Act. 21 Cong.Rec. 2731, 3152. That Act outlawed certain acts by 'persons,' and there is nothing to indicate that the Congress intended to restrict the meaning as applied to corporate officers. See Trailmobile Co. v. Whirls, 331 U.S. 40, 61, 67 S.Ct. 982, 992, 91 L.Ed. 1328.
5
The appellee points to § 8 of the Sherman Act, 15 U.S.C. § 7, 15 U.S.C.A. § 7, which defines 'person' 'to include corporations and associations.' He argues that, since corporations are included within the term, individual corporate officers are thereby excluded. This is a non sequitur. The mere fact that the term is given a broad construction does not alter its basic meaning, and no such inference can be drawn from the express inclusion of corporations as 'persons.' The reason for this inclusion is readily understandable. The doctrine of corporate criminal responsibility for the acts of the officers was not well established in 1890. See New York Central & H.R.R. Co. v. United States, 212 U.S. 481, 29 S.Ct. 304, 53 L.Ed. 613. When a criminal statute proscribed conduct by 'persons,' corporate defendants contended that only natural persons were included. United States v. Amedy, 11 Wheat. 392, 6 L. Ed. 502. The same issue raised in other cases was not always resolved by a unanimous Court. Beaston v. Farmers' Bank of Delaware, 12 Pet. 102, 9 L.Ed. 1017. Cf. United States v. Shirey, 359 U.S. 255, 79 S.Ct. 746, 3 L.Ed.2d 789. The dissent by Mr. Justice Story in the Beaston case would be sufficient reason for a careful draftsman to avoid the whole problem of a provision such as § 8. Further reason for caution lay in the language found in cases then recent. Sinking-Fund Cases, 99 U.S. 700, 718—719, 25 L.Ed. 496, and Canada Southern R. Co. v. Gebhard, 109 U.S. 527, 542, 3 S.Ct. 363, 373, 27 L.Ed. 1020 (dissenting opinion), which distinguished between persons and corporations when considering the application of the Fourteenth Amendment's protection to 'persons.' See Philadelphia Fire Assn. v. New York, 119 U.S. 110, 120, 7 S.Ct. 108, 113, 30 L.Ed. 342 (dissenting opinion). Therefore, we attribute no significance to the specific inclusion of corporations in the definition of 'persons' in determining whether a corporate officer is within the term.
6
This Court was faced with the same problem in United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48, involving the construction of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301—392, 21 U.S.C.A. §§ 301—392. An earlier version of the Act stated that the acts of a corporate officer would be chargeable both to him and to the corporation. In a 1938 revision the statute made any 'person' responsible and specifically included corporations within that term. 52 Stat. 1040. The Court of Appeals reversed the conviction of a corporate officer on the ground that only a corporation was a 'person' within the Act. This Court reversed the Court of Appeals, rejecting substantially the same argument that is advanced by the appellee in this case. The reason for the rejection is equally applicable to the case at bar. No intent to exculpate a corporate officer who violates the law is to be imputed to Congress without clear compulsion; else the fines established by the Sherman Act to deter crime become mere license fees for illegitimate corporate business operations. Following Dotterweich, we construe § 1 of the Sherman Act in its common-sense meaning to apply to all officers who have a responsible share in the proscribed transaction. Cf. Carolene Products Co. v. United States, 323 U.S. 18, 21, 65 S.Ct. 1, 3, 89 L.Ed. 15.
7
This construction is supported by the decisions of the lower federal courts which considered the problem of whether corporate officers were 'persons' within the Sherman Act in the interim before the passage of the Clayton Act. The most significant case is United States v. MacAndrews & Forbes Co., 149 F. 823 (C.C.S.D.N.Y.1906), in which the Court, considered the joint indictment of a corporation and some of its officers for violations of the Sherman Act. The defendants demurred to the joinder, the corporation pleading that only the human agents could be held responsible for the misdemeanor while the officers pleaded that only the corporation was responsible. The Court refused to hold as a matter of law that either proposition was correct because responsibility was, in each case, a matter of fact. The Court noted that the officers may or may not be convicted, depending upon whether they were personally responsible for the crime.3
8
In United States v. Winslow, 195 F. 578 (D.C.D.Mass.1912), the same contention by corporate officers was given short disposition:
9
'The indictment, however, expressly charges them (the corporate officers) as actors, and two fundamental principles are thoroughly settled. One is that neither in the civil nor the criminal law can an officer protect himself behind a corporation where he is the actual, present, and efficient actor; and the second is that all parties active in promoting a misdemeanor, whether agents or not, are principals.' 195 F., at 581.
10
We have found no case between 1890 and 1914 in which a corporate officer successfully secured the dismissal of an indictment or the reversal of a conviction on the ground that he was not a 'person' within the Sherman Act when he acted solely as a representative of the corporation.
11
Unless subsequent statutes have repealed or amended this aspect of the Sherman Act, our inquiry is at an end.
12
The appellee seeks succor in the subsequent legislative history accompanying attempts to amend the Sherman Act between 1890 and 1914. He particularly relies upon H.R. 10539, 56th Cong., 1st Sess. (1900). This bill would have expressly included corporate officers and agents in the definition of 'persons' found in § 8. The report accompanying that bill stated that the existing law did not subject agents, officers, and attorneys to penalties. H.R. Rep. No. 1506, 56th Cong., 1st Sess. However, statutes are construed by the courts with reference to the circumstances existing at the time of the passage. The interpretation placed upon an existing statute by a subsequent group of Congressmen who are promoting legislation and who are unsuccessful has no persuasive significance here. United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 331, 4 L.Ed.2d 334; United States v. Turley, 352 U.S. 407, 415, n. 14, 77 S.Ct. 397, 401, 1 L.Ed.2d 430; Fogarty v. United States, 340 U.S. 8, 13—14, 71 S.Ct. 5, 8, 95 L.Ed. 10; Wong Yang Sung v. McGrath, 339 U.S. 33, 47, 70 S.Ct. 445, 452, 94 L.Ed. 616; United States v. United Mine Workers, 330 U.S. 258, 281—282, 67 S.Ct. 677, 690, 91 L.Ed. 884; Gemsco, Inc., v. Walling, 324 U.S. 244, 265, 65 S.Ct. 605, 617, 89 L.Ed. 921. Logically, several equally tenable inferences could be drawn from the failure of the Congress to adopt an amendment in the light of the interpretation placed upon the existing law by some of its members, including the inference that the existing legislation already incorporated the offered change.
13
In 1914 the Congress passed 'An Act To supplement existing laws against unlawful restraints and monopolies, and for other purposes,' commonly called the Clayton Act. Section 14 of that Act provided:
14
'That whenever a corporation shall violate any of the penal provisions of the antitrust laws, such violation shall be deemed to be also that of the individual directors, officers, or agents of such corporation who shall have authorized, ordered, or done any of the acts constituting in whole or in part such violation, and such violation shall be deemed a misdemeanor, and upon conviction therefor of any such director, officer, or agent he shall be punished by a fine of not exceeding $5,000 or by imprisonment for not exceeding one year, or by both, in the discretion of the court.' 38 Stat. 736.
15
The appellee contends that § 14 is an entirely new provision added by Congress to provide for the criminal responsibility of corporate officers who act in a representative capacity. The Government contends that § 14 is merely supplemental and that appellee's construction results in an implied repeal of part of § 1 of the Sherman Act.4
16
Appellee asserts that § 14 would not literally apply to the officer who acted on his own account because his misconduct would not be attributed to the corporation. From this premise he argues that since § 14 of the Clayton Act applies only to an officer acting in a representative capacity, § 1 of the Sherman Act only applies to an officer acting on his own account.
17
We do not agree. The reasons for § 14 are sufficiently revealed by the legislative history. The provision originated in the House, and, after conferences with the Senate, survived substantially intact. The reports provide no assistance, but the debates do. Whether any supplementary legislation was necessary was the essence of the debates. As Senate Shields, an opponent, said, '(§ 14) is merely a reenactment of the Sherman law, sections 1, 2, and 3. In other words, it has always been held that the officers of corporations violating the law were punishable under these sections * * *.' 51 Cong.Rec. 14214. See 51 Cong.Rec. 9079, 9080, 9169, 9201, 9202, 9595, 9610, 14225, 15820, 16143. The proponents of the bill agreed that the Sherman Act did cover officers whose conduct constituted the offense (without distinction as to the capacity in which the officer was acting), but were disappointed in the sympathy shown to corporate officers by judges, juries, and prosecutors. Second, the proponents feared that the present Sherman Act did not cover officers who merely authorized or ordered the commission of the offense. These ideas were clearly expressed by Representative Floyd, a House manager:
18
'The purpose we had was to make it clear that, when a corporation had been guilty, those officers, agents, and directors of the corporation that either authorized, ordered, or did the thing prohibited should be guilty. Under the existing law, and without that provision of the statute, the person who did the things would undoubtedly be guilty; but in the enforcement of the criminal provisions of the Sherman law, experience has demonstrated that both juries and courts are slow to convict men who have simply done acts authorized or ordered by some officers of the concern higher up, and the words 'authorized' and 'ordered' were introduced to reach the real offenders, the men who caused the things to be done * * *.' 51 Cong.Rec. 9609. See 51 Cong.Rec. 9074, 9185, 9676, 9677, 9678, 9679, 16317.
19
Third, the proponents were fearful that the Sherman Act might not cover the activities of an officer which made a single 'link' in the 'chain' of events constituting the antitrust violation. Hence, the provision fixing responsibility for an act constituting 'in whole or in part' the violations. 51 Cong.Rec. 9679, 16275, 16317.
20
We examine this legislative history in order to ascertain the intent of Congress as to the ultimate purpose of § 14 of the Clayton Act. United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 591—592, 77 S.Ct. 872, 876, 1 L.Ed.2d 1057; Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 390—395, 71 S.Ct. 745, 748, 95 L.Ed. 1035; Federal Trade Comm'n v. Morton Salt Co., 334 U.S. 37, 43—46, 49, 68 S.Ct. 822, 826, 92 L.Ed. 1196; Corn Products Refining Co. v. Federal Trade Comm'n, 324 U.S. 726, 734 737, 65 S.Ct. 961, 965, 89 L.Ed. 1320. How members of the 1914 Congress may have interpreted the 1890 Act is not of weight for the purpose of construing the Sherman Act. Federal Housing Administration v. Darlington, Inc., 358 U.S. 84, 79 S.Ct. 141, 3 L.Ed.2d 132; Rainwater v. United States, 356 U.S. 590, 78 S.Ct. 946, 2 L.Ed.2d 996; Koshkonong v. Burton, 104 U.S. 668, 26 L.Ed. 886; Ogden v. Blackledge, 2 Cranch 272, 277, 2 L.Ed. 276. See United States v. Stafoff, 260 U.S. 477, 43 S.Ct. 197, 67 L.Ed. 358; Penn Mutual Life Ins. Co. v. Lederer, 252 U.S. 523, 40 S.Ct. 397, 64 L.Ed. 698; Levindale Lead & Zinc Mining Co. v. Coleman, 241 U.S. 432, 36 S.Ct. 644, 60 L.Ed. 1080; Talbot v. Seeman, 1 Cranch 1, 35, 2 L.Ed. 15. But see Sioux Tribe v. United States, 316 U.S. 317, 62 S.Ct. 1095, 86 L.Ed. 1501; Stockdale v. Insurance Co., 20 Wall. 323, 331, 22 L.Ed. 348 (separate opinion); United States v. Freeman, 3 How. 556, 11 L.Ed. 724. Cf. United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057.
21
Section 14 was intended to be a reaffirmation of the Sherman Act's basic penal provisions and a mandate to prosecutors to bring all responsible persons to justice. In the light of the congressional purpose revealed on the face of the statute and by the legislative history, this Court cannot construe § 14 as a restriction of § 1 of the Sherman Act. Thus, insofar as § 14 relates to the corporate officer who participants in the Sherman Act violation, whether or not in a representative capacity, no change was either intended or effected.
22
The cases subsequent to the Clayton Act reveal an understanding in accord with our own. The Government continued to seek indictments of corporate officers under the Sherman Act, not the Clayton Act, and many convictions were obtained. See, e.g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129; United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700; American Tobacco Co. v. United States, 147 F.2d 93 (C.A.6th Cir.), affirmed, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575.
23
The appellee does not call to our attention any case during this time in which the contention he now makes was successfully urged. He suggests that the dearth of cases on this point reflects the belief on the part of corporate officers that, because of the identical penalties of the Clayton Act, the successful challenge to a Sherman Act indictment would be an academic victory. We cannot even attempt to evaluate the motives of individual defendants in raising or not raising defenses, even if we regarded the matter as being significant, which we do not.
24
The Government, on the other hand, relies upon United States v. Atlantic Comm'n Co., 45 F.Supp. 187 (D.C.E.D.N.C.); United States v. General Motors Corp., 26 F.Supp. 353 (D.C.N.D.Ind.), affirmed, 121 F.2d 376 (C.A.7th Cir.); and United States v. National Malleable & Steel Castings Co., 6 F.2d 40 (D.C.N.D.Ohio), holding that nothing in § 14 of the Clayton Act altered the existing liability for prosecution of all officers who participate in the violation of the Sherman Act. With this, we agree.
25
We also agree that there is nothing in the 1955 amendment to the Sherman Act nor in its legislative history to indicate that the Congress intended to restrict the applicability of the increased fine to corporations. See 69 Stat. 282; S.Rep.No.618, 84th Cong., 1st Sess.; H.R.Rep.No.70, 84th Cong., 1st Sess., U.S. Code Cong. and Admin.News 1955, p. 2322.
26
Based upon the foregoing, we hold that a corporate officer is subject to prosecution under § 1 of the Sherman Act whenever he knowingly participates in effecting the illegal contract, combination, or conspiracy—be he one who authorizes, orders, or helps perpetrate the crime—regardless of whether he is acting in a representative capacity. It follows that the District Court erred when it dismissed the indictment against the appellee. The case is reversed and remanded for proceedings consistent with this opinion.
27
Reversed and remanded.
28
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
29
Mr. Justice HARLAN, concurring.
30
I join in the opinion of THE CHIEF JUSTICE with some additional observations, believed warranted by the circumstance that the holding below has since been followed by five District Courts, with only two others to the contrary.1
31
The language of § 1 of the Sherman Act, providing a penalty for 'every person' who engages in a conspiracy or makes a contract in restraint of trade, of course presents a serious obstacle to appellee's contention that he cannot be prosecuted thereunder. I agree with the Court that § 8, defining 'person' to include corporations and associations, does not imply the exclusion of natural persons. Moreover, the fiction of corporate entity, operative to protect officers from contract liability, had never been applied as a shield against criminal prosecutions when the Sherman Act was passed. In fact I think there can have been no serious doubt even as early as 1890 that officers could be punished for crimes committed for their corporations. Until well into the nineteenth century the corporation itself could not be convicted; the individuals who acted in its name of course could be. See the anonymous note of Holt, C.J., 12 Mod. 559, Case 935, 88 Eng.Rep. 1518 (K.B. 1701); Rex v. Medley, 6 Car. & P. 292, 297, 299, 172 Eng.Rep. 1246, 1249—1250 (K.B. 1834); State v. Great Works Milling & Mfg. Co., 20 Me. 41, 44 (1841); Ballantine, Corporations (rev. ed. 1946), § 113. However, it was recognized that corporate officers could be convicted for 'representative' crimes even after the corporation's immunity was worn away, Regina v. Great North of England R. Co., (1846) 9 Q.B. 315, 325—327, 115 Eng.Rep. 1294, 1298; State v. Morris & E.R. Co., 23 N.J.L. 360, 369 (1852); State v. Patton, 26 N.C. 16 (1843), in line with the rule stated in 1 Bishop, Criminal Law (7th ed. 1882), § 892, that an agent might be punished for crimes committed for his principal. Cf. United States v. Mills, 7 Pet. 138, 142, 8 L.Ed. 636. A substantial volume of convictions of individuals for corporate crimes had accumulated by 1890.2 Congress legislated against this background; it used words sufficiently broad that representative crimes fell within their ordinary meaning; and the normal inference would be that Congress intended to punish those responsible for acts which it declared unlawful.
32
The legislative history discloses no intention on the part of Congress to exempt the representative offenses of corporate officers. The Sherman bill, S. 1, 50th Cong., 1st Sess., was reported to the Senate with criminal penalties expressly extending to corporate officers and agents, but Senator Sherman soon omitted the criminal provisions altogether. 21 Cong.Rec. 1765, 2455. Senator Reagan then offered a substitute bill which, among other things, reinstated the criminal provisions, again expressly naming corporate agents in slightly different language. Id., at 2456. Appellee relies on statements made by Senator Sherman in the debate:
33
'Whether this law should extend to mere clerks, as was proposed in the third section (as reported by the Committee), is a matter of grave doubt. * * * To restrain and prevent the illegal tendency of a corporation is the proper duty of a court of equity. To punish the criminal intention of an officer is a much more difficult process and might be well left to the future. * * * These corporations do not care about your criminal statutes aimed at their servants. * * *' Id., at 2456, 2457, 2569.
34
However, the issue before the Senate at that time was not whether to exempt corporate officers from criminal prosecution but whether to omit criminal sanctions entirely. The objections raised that the addition of criminal penalties would result in strict construction in favor of legality and would inflict punishment for violations of vague and uncertain provisions—applied as well to persons acting for their own account, admittedly included within the Act as passed, as to those acting for corporations. Moreover, Senator Sherman was promptly overruled by a vote of 34—12, adopting the Reagan amendment as an amendment to the Sherman bill. Id., at 2611. A number of additional amendments rendered the bill quite unwieldy, see id., at 2655 (Senator Sherman), and it was submitted to the Committee on the Judiciary for tailoring, id., at 2731. The bill was redrafted in committee to its approximate present form and passed by a 52—1 vote, id., at 2901, 3145, 3153.
35
I am not persuaded, as argued by the appellee, that the greater margin of support for the final bill than for the Reagan bill indicates that the criminal liability of corporate officers was narrowed. Opposition to the Reagan bill was based in part on its specification of unlawful purposes that would render a combination a trust, id., at 2469 (Senator Reagan), 2561 (Senator Teller), which was omitted by the Committee, and in part on the inclusion of any criminal penalties at all, a feature common to the Reagan and the final bills which was accepted at the end in a spirit of compromise, as it was by Senator Sherman himself, id., at 2604, 2655. No Senator ever suggested, so far as can be found, that criminal penalties should be provided for corporations and for self-employed or 'ultra vires' individuals alone. Thirty-four Senators—a majority of the whole body—voted to include, via the Reagan bill, sanctions against officers acting for the corporation. The Committee's reduction of the explicit, but cumbersome, language of the Reagan bill to the simple and on its face equally all-encompassing 'every person' appears to have been simply a part of the general streamlining of the bill that took place in the Committee, with no intention of changing substance.
36
These and the further considerations dealt with in the opinion of THE CHIEF JUSTICE3 lead to the conclusion that the indictment in this case must be sustained.
1
In the Government's brief the Solicitor General cites 40 cases in which corporate officers were indicted under the Sherman Act between 1890 and 1914. Brief for Appellant, pp. 69—72.
2
'Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal * * *. Every person who shall make any contract or engage in any combination or conspiracy declared * * * to be illegal shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding fifty thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.'
3
'It is not without significance that offenses as serious, in congressional opinion, as those created by this statute are made misdemeanors. When the statute declares that certain acts notoriously to be accomplished under modern business conditions only through corporate instrumentality shall be misdemanors (sic), and further declares that the word 'person' as used therein shall be deemed to include corporations, such statute seems to me clearly passed in contemplation of the elementary principle that in respect of a misdemeanor all those who personally aid or abet in its commission are indictable as principals. * * * I am compelled to the conclusion that, under this statute, if the officer or agent of a corporation charged with fault be also charged with personal participation, direction, or activity therein, both may be so charged in the same indictment.' 149 F., at 832.
4
Appellee also argues, '(t)he Government in this case has not expressly relied on an aider and abettor theory, but * * * it has sought tacit support from the theory.' Brief for Appellee, pp. 62—68. Under the view we take of the case, it is unnecessary to consider the application of the general aider and abettor statute, 18 U.S.C. § 2, 18 U.S.C.A. § 2.
1
The opinion below is reported at 196 F.Supp. 155 (W.D.Mo.1961). In accord are United States v. A. P. Woodson Co., 198 F.Supp. 582 (D.D.C.1961), appeal pending, No. 1019, O.T.1961; United States v. Milk Distributors Assn., 200 F.Supp. 792 (D.Md.1961); United States v. American Optical Co., 1961 Trade Cases, par. 70,156 (E.D.Wis.1961), reversed sub nom. United States v. Kniss, 370 U.S., 719, 82 S.Ct. 1572; United States v. General Motors Corp., 1962 Trade Cases, par. 70,203 (S.D.Cal.1962), reversed sub nom. United States v. Staley, 370 U.S., 719, 82 S.Ct. 1572; and United States v. Engelhard-Hanovia, Inc., 204 F.Supp. 407 (S.D.N.Y.1962), appeal pending sub nom. United States v. Brown, No. 983, O.T.1961.
In United States v. North American Van Lines, Inc., 202 F.Supp. 639 (D.D.C.1962), the court refused to dismiss an indictment of corporate officers, holding that they were not charged with acting solely in a representative capacity. It went on to say that in any event the Sherman Act applied to representative acts. We are informed by the parties here that in United States v. Packard-Bell Electronics Corp., Cr.No.30158, S.D.Cal., a motion to dismiss was denied without opinion. The indictment, see 5 CCH Trade Reg.Rep. (1961), par. 45,061, case 1632, charged violations of § 14 as well as of § 1.
2
Moore v. States, 48 Miss. 147 (1873); Elsberry v. State, 52 Ala. 8, 10 (1875); Ex parte Schmidt, 2 Tex.App. 196 (1877); Cowley v. People, 83 N.Y. 464, 469 (1881); State v. Parsons, 12 Mo.App. 205 (1882); City of Wyandotte v. Corrigan, 35 Kan. 21, 26, 10 P. 99, 102 (1886). The only decision found to the contrary is Commonwealth v. Demuth, 12 S. & R. 389, 392 (Pa.1825), in which a particular statute was read not to impose a duty on individual officers. That this did not state a general rule even in Pennsylvania was made clear by the Supreme Court of that State in Commonwealth to Use of Lawson v. Ohio & P.R. Co., 1 Grant Cas. 329, 350 (1856) (dictum).
3
I find little support, however, for our conclusion in United States v. MacAndrews & Forbes Co., 149 F. 823 (C.C.S.D.N.Y.1906), or United States v. Winslow, 195 F. 578 (D.Mass.1912), despite some of the language in those opinions. Neither case squarely upholds criminal responsibility in a 'representative' capacity. Among other things the court in MacAndrews & Forbes declared it possible to infer from the indictment that the corporations were 'doing one thing and the individuals another at or about the same time, which things were utterly different * * *. It is conceivable that the evidence may show that the individual defendants were not free agents, but acted under a species of corporate coercion, for which they should not be held personally responsible; but it is impossible to arrive at this conclusion on demurrer.' 149 F., at 832. In Winslow, the indictment charged the officers with controlling the industry 'by the device and means of and through and in the names of' certain corporations. 195 F., at 591. Thus all that was held in MacAndrews & Forbes, and all that needed to be held in Winslow, was that corporate officers are not shielded from criminal responsibility when they act on their own individual account or when they use a sham corporation as a means of furthering their personal ends.
Nor do I find much weight in the decisions since 1914 upholding the applicability of the Sherman Act to representative crimes of corporate officers; while the penalties for violating the two statutes were identical there was little incentive to argue to the contrary. The most that can be said of the decisions since 1890 is that they have suggested no doubt of the applicability of the Sherman Act to corporate officers acting only in a representative capacity.
| 78
|
370 U.S. 690
82 S.Ct. 1404
8 L.Ed.2d 777
CONTINENTAL ORE COMPANY et al., Petitioners,v.UNION CARBIDE AND CARBON CORPORATION et al.
No. 304.
Argued April 16 and 17, 1962.
Decided June 25, 1962.
Joseph L. Alioto, San Francisco, Cal., for petitioners.
Josiah G. Holland, Denver, Colo., for respondent Vanadium Corp. of America.
Richard J. Archer, San Francisco, Cal., for respondents Union Carbide Corp. and United States Vanadium Corp.
Mr. Justice WHITE delivered the opinion of the Court.
1
This is a private treble damage action under the anti-trust laws.1 Continental Ore Company, a partnership, and its individual partners, who were plaintiffs in the trial court, are petitioners here.2 Henry J. Leir, the principal party in Continental, had engaged in the buying and selling of metals, including vanadium products, in Europe prior to 1938, in which year he immigrated to the United States. This case concerns his subsequent efforts in this country to build a successful business in the production and sale of vanadium.
2
Vanadium is a metal obtained from certain ores which, in this country, are mined principally on the Colorado plateau. The ore is processed at mills near the mines into a substance commonly known as vanadium oxide. The oxide is then transported to the East and converted into ferrovanadium,3 which is purchased chiefly by steel companies for use as an alloy in hardening steels.
3
The defendants named in the complaint were Vanadium Corporation of America (VCA), a fully integrated miner and manufacturer of vanadium products, Union Carbide and Carbon Corporation (Carbide), and the following four wholly owned subsidiary corporations of the latter company: United States Vanadium Corporation (USV), engaged in mining vanadium ore and processing vanadium oxide; Electro Metallurgical Company (Electro Met), engaged in making ferrovanadium; Electro Metallurgical Sales Corporation (Electro Met Sales), engaged in the sale of vanadium oxide and ferrovanadium; and Electro Metallurgical Company of Canada, Ltd. (Electro Met of Canada), engaged in selling vanadium products in Canada. The complaint was filed on November 15, 1949, and service was had on VCA, Carbide and USV. There was no service on Electro Met, Electro Met Sales or Electro Met of Canada. Carbide acquired the assets of Electro Met and Electro Met Sales by dissolution or merger during the year 1949, prior to the filing of the complaint herein.
4
The complaint alleged that, beginning in about 1933, the defendants and others acting in concert with them violated §§ 1 and 2 of the Sherman Act4 by conspiring to restrain, by monopolizing, and by attempting and conspiring to monopolize, trade and commerce in ferrovanadium and vanadium oxide. The defendants were charged with purchasing and acquiring control over substantially all accessible vanadium-bearing ore deposits in the United States and substantially all vanadium oxide produced by others in the United States, with refusing to sell vanadium oxide to other potential producers of ferrovanadium, including Continental and its associates, with apportioning and dividing sales of ferrovanadium and vanadium oxide among themselves in certain proportions, with fixing identical prices for the sale of ferrovanadium and vanadium oxide and for the purchase of ore, and with making certain mutual arrangements whereby one or more Carbide subsidiaries supplied VCA with substantial quantities of vanadium oxide at preferential prices to VCA. The complaint stated that between 1933 and 1949 the defendants produced over 99% of all ferrovanadium and over 90% of all vanadium oxide produced in the United States and that during the same period the defendants sold over 99% of the ferrovanadium and vanadium oxide sold in this country.5
5
According to the complaint, as a proximate consequence of defendants' monopolistic and restrictive practices, independent producers and distributors of ferrovanadium and vanadium oxide, including Continental, were eliminated from the business. Specifically, the complaint detailed several efforts which Continental made to enter and maintain itself in the vanadium business, all of which were allegedly frustrated by defendants' Sherman Act violations: (1) In 1938, Continental negotiated a contract with Apex Smelting Company of Chicago whereby Apex was to build and operate a plant for the conversion of oxide to ferrovanadium by use of the aluminothermic process. Continental and Apex were to share the profits of this venture. On its part, Continental agreed to obtain raw materials for Apex and to sell the finished product. Operations under this contract began in the spring of 1940, but Apex terminated the agreement in 1942 allegedly because the illegal activities of defendants prevented the obtaining of a sufficient supply of vanadium oxide. (2) Meanwhile, Continental itself had begun to produce a compound called 'Van-Ex,' composed of vanadium oxide and other materials, which was designed for direct introduction into the steel-making process without prior conversion to ferrovanadium. This venture was allegedly terminated in 1944 because of the difficulty of securing raw materials caused by defendants' unlawful practices, including the efforts of defendants to obtain ownership or control of the mines and mills of Continental's suppliers. (3) Continental had developed a business with a Canadian customer during 1942. When Electro Met Sales of Canada was appointed by the Canadian Government as the exclusive wartime agent to purchase and allocate vanadium for Canadian industries, that company, it is alleged, acting under the control and direction of its parent, Carbide, eliminated Continental entirely from the Canadian market and divided Continental's business solely between defendants. (4) Defendants in 1943, by open threats of reprisals, allegedly frustrated certain arrangements which Continental had with the Climax Molybdenum Corporation for the manufacture of ferrovanadium. (5) In January 1944, Continental contracted with Imperial Paper & Color Corporation for the processing by the latter of vanadium oxide and ferrovanadium. Continental agreed to act as sales agent for the output. The complaint charged that Imperial abandoned the contract at the end of 1944 because of the inability to secure raw materials and that Continental then left the vanadium business altogether, all as a result of the restrictive and monopolistic practices of the defendants.
6
Trial was to a jury and a verdict was returned for defendants. Continental appealed, asserting error in the trial court's exclusion of various evidentiary items, in certain of the instructions given to the jury, in the refusal to give other instructions, and in other rulings of the trial court. The Court of Appeals for the Ninth Circuit announced that its task was to review the correctness of the judgment below, not the reasons therefor, and on that basis affirmed the judgment, 289 F.2d 86, holding that there was insufficient evidence to justify a jury finding that defendants' illegal acts were in fact the cause of Continental's failure in the vanadium business, and hence, that a verdict for defendants should have been directed. In reaching its decision, the court stated that it had considered not only all the evidence admitted by the trial judge, but also all the evidence offered by the plaintiffs which the trial judge excluded. The court did not deal with or rule upon any of the alleged trial errors relied upon by Continental, except for the issue relating to Continental's alleged exclusion from the Canadian market. Certiorari was granted, limited to issues which required examination in the light of previous decisions of this Court and which presented important questions under the antitrust laws. 368 U.S. 886, 82 S.Ct. 141, 7 L.Ed.2d 87. We have concluded, for the reasons discussed hereafter, that the Court of Appeals' decision must be reversed and the case remanded for a new trial.
I.
7
The Court of Appeals was, of course, bound to view the evidence in the light most favorable to Continental and to give it the benefit of all inferences which the evidence fairly supports, even though contrary inferences might reasonably be drawn.6 From our examination of the rather extensive record, we have concluded that the Court of Appeals departed from this rule and erred in holding that there was insufficient evidence to support a finding that respondents' conduct in fact caused injury to Continental's business.
8
Continental's fundamental claim throughout was that inadequate supplies of vanadium oxide were available to it and its associates, and that respondents' alleged Sherman Act violations caused or contributed to this shortage. The Court of Appeals acknowledged the principle in antitrust cases that 'where the plaintiff proves a loss, and a violation by defendant of the antitrust laws of such a nature as to be likely to cause that type of loss, there are cases which say that the jury, as the trier of the facts, must be permitted to draw from this circumstantial evidence the inference that the necessary causal relation exists.'7 The court also assumed that the evidence was adequate to support a jury finding that respondents committed the alleged violations of the Sherman Act and that the specific acts charged to have been done by respondents were performed as part of the basic plan to monopolize the vanadium market. Nor did the court take express issue with the averments that adequate supplies of vanadium oxide were unavailable to Continental during certain periods or with the argument that a shortage of vanadium oxide was the type of consequence that would reasonably be expected to flow from a conspiratorial and monopolistic arrangement controlling 99% of the ferrovanadium and vanadium oxide sold in this country. The court nevertheless concluded, in effect, that before there could be a sufficient showing of any shortage of vanadium oxide, or at least before the jury could be permitted to infer that any such lack of material was chargeable to respondents, Continental was required to demonstrate both that it made timely demands for oxide from respondents and that it exhausted all other possible sources of that material.
9
The court then examined seriatim the Apex, Van-Ex, Climax, Canadian and Imperial ventures and ruled separately upon the respondents' alleged damage to Continental in connection with each of these episodes. As to Apex and Imperial, it was said that Continental's demands for oxide from respondents were not sufficiently contemporaneous with the failure of these ventures to subject respondents to liability. As to the Van-Ex period, respondents were blameless not because oxide had not been requested from them but because Continental failed, in the court's view, to exhaust at least one other available source. The Canadian and Climax issues were disposed of on different grounds.
10
It is apparent from the foregoing that the Court of Appeals approached Continental's claims as if they were five completely separate and unrelated lawsuits. We think this was improper. In cases such as this, plaintiffs should be given the full benefit of their proof without tightly compartmentalizing the various factual components and wiping the slate clean after scrutiny of each. '* * * (T)he character and effect of a conspiracy are not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole. United States v. Patten, 226 U.S. 525, 544, 33 S.Ct. 141, 57 L.Ed. 333 * * *; and in a case like the one before us, the duty of the jury was to look at the whole picture and not merely at the individual figures in it.' American Tobacco Co. v. United States, 147 F.2d 93, 106 (C.A.6th Cir.). See Montague & Co. v. Lowry, 193 U.S. 38, 45—46, 24 S.Ct. 307, 309, 48 L.Ed. 608.
11
Furthermore, we do not believe that respondents' liability under the antitrust laws can be measured by any rigid or mechanical formula requiring Continental both to demand materials from respondents and to exhaust all other sources of supply. The Court of Appeals appears to have accorded no weight to Continental's evidence which was offered to show that respondents had interferred with, acquired, or destroyed the several small independent sources of vanadium oxide relied upon by Continental. Under the criteria used by the Court of Appeals, respondents could, with impunity, concertedly refuse to deal with Continental while the latter was able to obtain some oxide from independent sources, then proceed at their leisure to dry up those other sources, and finally insist that Continental make repeated demands for respondents' oxide before incurring antitrust liability. The cases relied upon by the Court of Appeals8 clearly do not support any such formula and we cannot deem the injury alleged to flow from a monopolist's elimination of one's independent suppliers to be so 'remote' as to justify refusing to let the damages issue go to the jury.9
12
Our review of the record discloses sufficient evidence for a jury to infer the necessary causal connection between respondents' antitrust violations and petitioners' injury. In concluding that Continental and Apex had not made sufficient efforts to obtain vanadium oxide from respondents, the Court of Appeals either overlooked or interpreted into insignificance the repeated approaches made to respondents by Continental and Apex in July and October of 1939, in March and October of 1940 and in June and July of 1941. The court also failed to notice certain communications from Apex in September and December 1941, saying that it could operate at only partial capacity due to the lack of raw materials. Nor did the court mention the testimony of an officer of Apex to the effect that Apex's supply of oxide was irregular and intermittent and that the unavailability of oxide was one of the reasons that Apex did not operate at full capacity. According to the Court of Appeals, the 'critical period' during which Continental and Apex should have demanded materials from the respondents was the year preceding the termination of the Apex contract, which the court placed in June 1942. But it is quite plain from the record that Apex notified Continental of its determination to terminate the contract in January and February of 1942, which followed much more closely the previous refusals of respondents to deal with Continental and Apex.
13
Undoubtedly, all of the evidence during this period does not point in one direction and different inferences might reasonably be drawn from it. There was, however, sufficient evidence to go to the jury and it is the jury which 'weighs the contradictory evidence and inferences' and draws 'the ultimate conclusion as to the facts.' Tennant v. Peoria & P.U.R. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520.
14
During the so-called Van-Ex period, the court did not exculpate respondents because of petitioners' failure to request oxide from them but because petitioners supposedly failed to take advantage of an independent source of supplies. But the evidence relied upon by the court can just as reasonably be read in a manner favorable to Continental and it appears that the court may have misapprehended significant parts of this record.10 In any event, the interpretation and significance of this evidence were for the jury.
15
The Court of Appeals also concluded that the respondents did not contribute to the failure of Imperial to produce ferrovanadium under its contract with Continental. The court acknowledged, and there appears to be substantial evidence to this effect, that Imperial's decision was based upon its concern about a steady and reliable source of raw materials. Continental had requested VCA and USV to provide sizable monthly supplies of oxide in November of 1943, but the Court of Appeals bracketed this evidence with the Van-Ex period even though the testimony clearly was that the supplies then sought were for the Imperial arrangement which was then being negotiated. Imperial, after signing the contract, carefully surveyed foreign sources of vanadium, concluded they were inadequate and determined not to go into production because a reliable, long-range source of oxide was not available. In spite of the refusal of respondents to deal with Continental in November 1943 and in previous months and years, and in spite of the assumed monopolistic control of almost all of the vanadium oxide in the United States, the court ruled that Continental must have requested oxide from respondents after the contract with Imperial was signed in January of 1944. We think the jury should be allowed to determine whether respondents' conduct materially contributed to the failure of the Imperial venture, to Continental's damage.
II.
16
Continental's alleged elimination from the Canadian market raises different issues. At the trial Continental introduced evidence to show that beginning in March 1942, it had shipped Van-Ex to a Canadian customer each month during the remainder of that year. There was then received in evidence a letter dated January 19, 1943, from Continental to Electro Met in New York City reciting that the new allocation system in Canada11 had eliminated Continental from the Canadian market in January, that Continental had inquired about the matter from the Metals Controller for the Canadian Government and that the latter had referred Continental to Electro Met. The court then struck this letter from the record and rejected petitioners' offer to prove that Continental was excluded from the Canadian market by Electro Met of Canada, a wholly owned subsidiary corporation of Carbide, acting as exclusive purchasing agent for the Metals Controller but allegedly operating in this connection under the control and direction of Carbide for the purpose of carrying out the overall conspiracy to restrain and monopolize the vanadium industry. To that end, Continental offered to prove that its former share of the Canadian market was divided between Carbide and VCA. Continental offered various correspondence with Electro Met of Canada and a memorandum and proposed testimony by Continental's vice president concerning his conversations with an employee of Electro Met who had communicated with Continental in response to Continental's letter of January 19, 1943, to Electro Met. The court denied the entire offer of proof 'for the reason that this is a transaction wholly in the hands of the Canadian Government and that whether or not this plaintiff was permitted to sell his material to a customer in Canada was a matter wholly within the control of the Canadian Government.' The Court of Appeals agreed with the trial court and concluded that Continental was not legally entitled to recover from respondents for the destruction of its Canadian business. The court said that no vanadium oxide could be imported into Canada by anyone other than the Canadian Government's agent, Electro Met of Canada, which refused to purchase from the petitioners. Thus, according to the court, 'even if we assume that Electro Metallurgical Company of Canada, Ltd., acted for the purpose of entrenching the monopoly position of the defendants in the United States, it was acting as an arm of the Canadian Government, and we do not see how such efforts as appellants claim defendants took to persuade and influence the Canadian Government through its agent are within the purview of the Sherman Act.' 289 F.2d, at 94. This ruling was erroneous and we hold that Continental's offer of proof was relevant evidence of a violation of the Sherman Act as charged in the complaint and was not inadmissible on the grounds stated by the courts below.
17
Respondents say that American Banana Co. v. United Fruit Co., 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826, shields them from liability. This Court there held that an antitrust plaintiff could not collect damages from a defendant who had allegedly influenced a foreign government to seize plaintiff's properties. But in the light of later cases in this Court respondents' reliance upon American Banana is misplaced. A conspiracy to monopolize or restrain the domestic or foreign commerce of the United States is not outside the reach of the Sherman Act just because part of the conduct complained of occurs in foreign countries. United States v. American Tobacco Co., 221 U.S. 106, 31 S.Ct. 632, 55 L.Ed. 663; United States v. Pacific & Arctic R. & Navigation Co., 228 U.S. 87, 33 S.Ct. 443, 57 L.Ed. 742; Thomsen v. Cayser, 243 U.S. 66, 37 S.Ct. 353, 61 L.Ed. 597; United States v. Sisal Sales Corp., 274 U.S. 268, 47 S.Ct. 592, 71 L.Ed. 1042. Cf. Steele v. Bulova Watch Co., 344 U.S. 280, 73 S.Ct. 252, 97 L.Ed. 252; Branch v. Federal Trade Comm'n, 141 F.2d 31 (C.A.7th Cir.). See United States v. Aluminum Co. of America, 148 F.2d 416 (C.A.2d Cir.); United States v. National Lead Co., 63 F.Supp. 513 (D.C.S.D.N.Y.), aff'd 332 U.S. 319, 67 S.Ct. 1634, 91 L.Ed. 2077.12
18
Furthermore, in the Sisal case, supra, a combination entered into within the United States to monopolize an article of commerce produced abroad was held to violate the Sherman Act even though the defendants' control of that production was aided by discriminatory legislation of the foreign country which established an official agency as the sole buyer of the product from the producers and even though one of the defendants became the exclusive selling agent of that governmental authority. Since the activities of the defendants had an impact within the United States and upon its foreign trade, American Banana was expressly held not to be controlling.13
19
Olsen v. Smith, 195 U.S. 332, 25 S.Ct. 52, 49 L.Ed. 224; United States v. Rock Royal Co-op, 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446; and Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315, do not help respondents. These decisions, each of which sustained the validity of mandatory state or federal governmental regulations against a claim of antitrust illegality, are wide of the mark. In the present case petitioners do not question the validity of any action taken by the Canadian Government or by its Metals Controller. Nor is there left in the case any question of the liability of the Canadian Government's agent, for Electro Met of Canada was not served. What the petitioners here contend is that the respondents are liable for actions which they themselves jointly took, as part of their unlawful conspiracy, to influence or to direct the elimination of Continental from the Canadian market. As in Sisal, the conspiracy was laid in the United States, was effectuated both here and abroad, and respondents are not insulated by the fact that their conspiracy involved some acts by the agent of a foreign government.
20
From the evidence which petitioners offered it appears that Continental complained to the Canadian Metals Controller that Continental had lost its Canadian business. The Controller referred Continental to one of the respondents. But there is no indication that the Controller or any other official within the structure of the Canadian Government approved or would have approved of joint efforts to monopolize the production and sale of vanadium or directed that purchases from Continental be stopped. The exclusion, Continental claims, resulted from the action of Electro Met of Canada, taken within the area of its discretionary powers granted by the Metals Controller and in concert with or under the direction of the respondents. The offer of proof at least presented an issue for the jury's resolution as to whether the loss of Continental's Canadian business was occasioned by respondents' activities. Respondents are afforded no defense from the fact that Electro Met of Canada, in carrying out the bare act of purchasing vanadium from respondents rather than Continental, was acting in a manner permitted by Canadian law. There is nothing to indicate that such law in any way compelled discriminatory purchasing, and it is well settled that acts which are in themselves legal lose that character when they become constituent elements of an unlawful scheme. Swift & Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 279, 49 L.Ed. 518; American Tobacco Co. v. United States, 328 U.S. 781, 809, 66 S.Ct. 1125, 1138, 90 L.Ed. 1575; Steele v. Bulova Watch Co., 344 U.S. 280, 287, 73 S.Ct. 252, 256, 97 L.Ed. 252. See Georgia v. Pennsylvania R. Co., 324 U.S. 439, 457—458, 65 S.Ct. 716, 726, 89 L.Ed. 1051; Slick Airways v. American Airlines, 107 F.Supp. 199, 207 (D.C.N.J.).
21
The case of Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464, cited by the court below and much relied upon by respondents here, is plainly inapposite. The Court there held not cognizable under the Sherman Act a complaint charging, in essence, that the defendants had engaged in a concerted publicity campaign to foster the adoption of laws and law enforcement practices inimical to plaintiffs' business. Finding no basis for imputing to the Sherman Act a purpose to regulate political activity, a purpose which would have encountered serious constitutional barriers, the Court ruled the defendants' activities to be outside the ban of the Act 'at least insofar as those activities comprised mere solicitation of governmental action with respect to the passage and enforcement of laws.' 365 U.S., at 138, 81 S.Ct., at 530. In this case, respondents' conduct is wholly dissimilar to that of the defendants in Noerr. Respondents were engaged in private commercial activity, no element of which involved seeking to procure the passage or enforcement of laws. To subject them to liability under the Sherman Act for eliminating a competitor from the Canadian market by exercise of the discretionary power conferred upon Electro Met of Canada by the Canadian Government would effectuate the purposes of the Sherman Act and would not remotely infringe upon any of the constitutionally protected freedoms spoken of in Noerr.
III.
22
Since our decision concerning the alleged loss of Continental's Canadian business will in any event require a new trial of the entire case in view of the close interconnection between the Canadian and domestic issues, we shall remand the case to the District Court for further proceedings. We therefore deem it appropriate to pass upon certain of the alleged trial errors raised by Continental in the Court of Appeals but not considered by that court. In passing upon these issues, we are not to be understood as expressing any views on the merits of those matters raised by Continental before the Court of Appeals but not discussed here.
23
An error committed by the trial court, perhaps understandable because the trial preceded this Court's decision in Klor's, Inc., v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741, was the 'public injury' charge. Although petitioners pleaded a concerted refusal to deal with them by respondents, a price-fixing conspiracy, and an allocation of customers, all per se violations under § 1 of the Sherman Act, the court charged the jury that a conspiracy must be proved 'which was reasonably calculated to prejudice the public interest by unduly' restraining trade, and which was intended 'to injure the general public by' restraining trade. Under the rule stated in Klor's, this charge was error.
24
The trial court also erred in its treatment of monopolization. Initially, in its charge to the jury, the court defined 'monopolize' as referring to 'the joint acquisition or maintenance by the members of the conspiracy formed for that purpose, of the power to control and dominate interstate trade and commerce in a commodity to such an extent that they are able, as a group, to exclude actual or potential competitors from the field, accompanied with the intention and purpose to exercise such power.' The court also related its definition of 'attempt to monopolize' to action taken by a combination or conspiracy. The jury was further instructed that 'an essential element of the illegal monopoly or monopolization is the existence of a combination or conspiracy to acquire and maintain the power' and that a verdict must be returned for the defendants 'if you find that the plaintiffs have not proved that there was * * * a conspiracy.' Petitioners duly excepted to the charge on the ground that they were entitled to prevail if they could prove that either respondent monopolized unilaterally.
25
Petitioners' complaint did not preclude reliance on unilateral monopolization and the evidence offered was relevant and material to such a charge. The trial court's misinterpretation of the law in defining 'monopolization' and attempted monopolization' in terms of 'conspiracy to monopolize' was therefore prejudicial rather than harmless. This error should not be repeated in a new trial.14
26
The trial court further erred in its persistent exclusion of evidence relating to the pre-1938 period, on the ground that since Mr. Leir came to this country in 1938 nothing which transpired earlier could be relevant to his suit. Petitioners sought to introduce evidence that the conspiracy and monopolization alleged began in the early 1930's, that overt acts in furtherance thereof occurred in the 1930's, and that it was pursuant to this anticompetitive scheme that respondents sought to and did eliminate petitioners from the vanadium industry after 1938. This evidence was clearly material to petitioners' charge that there was a conspiracy and monopolization in existence when they came into the industry, and that they were eliminated in furtherance thereof.15 We do not mean that a trial court may not place reasonable limits upon such evidence or set a reasonable cut-off date, evidence before which point is to be considered too remote to have sufficient probative value to justify burdening the record with it.16 But that was not the basis for this exclusionary ruling.
27
We conclude that the judgment of the Court of Appeals must be vacated and the case remanded to the District Court for further proceedings consistent with this opinion. It is so ordered.
28
Judgment of Court of Appeals vacated and case remanded.
29
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
1
The action was brought under § 4 of the Clayton Act, 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 may sue therefor in any district court of the United States * * * and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee.'
2
The partnership is the successor in interest to Continental Ore Corporation, organized in 1938 but later dissolved.
3
During the years in question here the conversion was accomplished by respondents in electric furnaces. Continental sought to introduce the making of ferrovanadium by the aluminothermic process, which it claimed was more efficient and economical than respondents' method.
4
The Sherman Act, §§ 1—2, 15 U.S.C. §§ 1—2, 15 U.S.C.A. §§ 1, 2, provide in pertinent part:
'Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal * * *.
'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 * * *.'
5
The complaint alleged that VCA sold approximately two-thirds of all ferrovanadium and vanadium oxide sold by defendants (which was said to amount to approximately 99% of all ferrovanadium and vanadium oxide sold and consumed in the United States), while Electro Met Sales (a Carbide subsidiary) sold approximately one-third. According to petitioners' evidence, the Carbide group produced approximately 77% of domestic vanadium oxide, while VCA produced about 65% of ferrovanadium.
6
As Professor Moore has indicated, 'In ruling on the motion (for directed verdict) the trial court views the evidence in the light most favorable to the party against whom the motion is made. On appeal, likewise, the appellate court must consider the evidence in its strongest light in favor of the party against whom the motion for directed verdict was made, and must give him the advantage of every fair and reasonable intendment that the evidence can justify.' 5 Moore's Federal Practice 2316 (2d ed., 1951). See Pawling v. United States, 4 Cranch 219, 2 L.Ed. 601; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Tennant v. Peoria & P.U.R. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520. Cf. Smith v. Reinauer Oil Transport, 256 F.2d 646, 649 (C.A.1st Cir.).
The same rule governs in ruling upon motions for directed verdict in treble damage suits under the antitrust laws. Schad v. Twentieth Century-Fox Film Corp., 136 F.2d 991, 993 (C.A.3d Cir.); Wisconsin Liquor Co. v. Park & Tilford Distillers Corp., 267 F.2d 928, 930 (C.A.7th Cir.). Cf. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993; Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458.
7
289 F.2d, at 90. For this statement, the Court of Appeals relied upon Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652; Eastman Kodak Co. of New York v. Southern Photo Materials Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684; Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544; Martin v. Herzog, 228 N.Y. 164, 170 171, 126 N.E. 814, 816. Thus in Bigelow this Court stated: '(I)n the absence of more precise proof, the jury could conclude as a matter of just and reasonable inference from the proof of defendants' wrongful acts and their tendency to injure plaintiffs' business, and from the evidence of the decline in prices, profits and values, not shown to be attributable to other causes, that defendants' wrongful acts had caused damage to the plaintiffs.' 327 U.S., at 264, 66 S.Ct. at 579. 'The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.' Id., at 265, 66 S.Ct. at 580. See Bordonaro Bros. Theatres v. Paramount Pictures, 176 F.2d 594, 597 (C.A.2d Cir.); Atlas Building Prod. Co. v. Diamond Block & Gravel Co., 269 F.2d 950, 957—959 (C.A.10th Cir.).
8
Royster Drive-In Theatres, Inc., v. American Broadcasting-Paramount Theatres, Inc., 2 Cir., 268 F.2d 246, 251; Standard Oil Co. of California v. Moore, 9 Cir., 251 F.2d 188, 198; Congress Bldg. Corp. v. Loew's, Inc., 7 Cir., 246 F.2d 587, 596—598; Milwaukee Towne Corp. v. Loew's, Inc., 7 Cir., 190 F.2d 561, 568.
9
Cf. Klor's Inc., v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741.
10
The Court of Appeals' interpretation of the evidence was that in 1943 Continental declined to deal with Nisley & Wilson, an independent producer of vanadium oxide, particularly in October 1943, when Continental supposedly failed to make any effort to procure Nisley & Wilson's flaked vanadium oxide and in January 1944 when, according to the court, Continental refused to buy some 300,000 pounds of 'oxide' offered by Nisley & Wilson at the time the latter went out of business. But in October 1943, Nisley & Wilson was entirely engaged in processing ore furnished by the Government and its vanadium oxide product was obtainable only through allocation by the War Production Board. The correspondence between Nisley & Wilson and Continental was looking toward a postwar relationship, and Continental's letter might well be interpreted by a jury not as a refusal to buy but as a statement of intention by Continental to cooperate with Nisley & Wilson to keep the latter's mill running during peacetime. As for the 300,000 pounds of 'oxide' which the court said was offered to Continental, the material actually was ore, not oxide. Furthermore, Nisley & Wilson did not own the ore and failed in its effort to buy it from the Government.
11
Canada's entry into World War II prompted the Canadian Government to take extraordinary measures to assure optimum availability of strategic materials to Canadian private industries engaged in the war effort. Pursuant to these measures, the Office of Metals Controller was established and given broad powers to regulate the procurement of the materials and to allocate them to industrial users. See Order of the Governor General in Council, P.C. 3187, July 15, 1940. The Metals Controller enlisted the aid of Electro Met of Canada in early 1943, delegating to it the discretionary agency power to purchase and allocate to Canadian industries all vanadium products required by them. The validity of these wartime measures and delegations under Canadian law is not here contested. Cf. Reference Re Regulations (Chemicals) Under War Measures Act, 1 D.L.R. (1943) 248.
12
See also Brewster, Antitrust and American Business Abroad 65—75 (1958); Fugate, Foreign Commerce and the Antitrust Laws 20 55 (1958); Atty.Gen.Nat. Comm. Antitrust Rep. 66—77 (1955); Kramer, Application of the Sherman Act to Foreign Commerce, 3 Antitrust Bull. 387 (1958); Carlston, Antitrust Policy Abroad, 49 N.W.U.L.Rev. 569 (1954).
13
'The circumstances of the present controversy are radically different from those presented in American Banana Co. v. United Fruit Co., supra, and the doctrine there approved is not controlling here. * * *
'Here we have a contract, combination and conspiracy entered into by parties within the United States and made effective by acts done therein. The fundamental object was control of both importation and sales of sisal and complete monopoly of both internal and external trade and commerce therein. The United States complain of a violation of their laws within their own territory by parties subject to their jurisdiction, not merely of something done by another government at the instigation of private parties. True, the conspirators were aided by discriminating legislation, but by their own deliberate acts, here and elsewhere, they brought about forbidden results within the United States. They are within the jurisdiction of our courts and may be punished for offenses against our laws.' 274 U.S., at 275—276, 47 S.Ct., at 593.
14
Among the cases in which this Court has condemned unilateral monopolization are Maryland & Virginia Milk Producers Ass'n v. United States, 362 U.S. 458, 468, 80 S.Ct. 847, 854, 4 L.Ed.2d 880; Lorain Journal v. United States, 342 U.S. 143, 154, 72 S.Ct. 181, 186, 96 L.Ed. 162. See also United States v. Aluminum Co., 148 F.2d 416 (C.A.2d Cir.); United States v. United Shoe Mach. Co., 110 F.Supp. 295 (D.Mass.), aff'd, 347 U.S. 521, 74 S.Ct. 699, 98 L.Ed. 910.
15
Thus in Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 75—76, 31 S.Ct. 502, 55 L.Ed. 619, this Court considered evidence as to defendants' acts in 1879—1882, prior to the Sherman Act's passage in 1890, in order to ascertain the monopolistic intent or purpose of the founders of the Standard Oil Trust. And in Kansas City Star Co. v. United States, 240 F.2d 643, 650—651 (C.A.8th Cir.), evidence from the period preceding the criminal statute of limitations was allowed into consideration to show that defendants' course of conduct over a period of years indicated that they retain an unlawful intent during the immediate pre-indictment period.
16
See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 228—231, 60 S.Ct. 811, 848, 84 L.Ed. 1129.
| 78
|
370 U.S. 723
82 S.Ct. 1573
8 L.Ed.2d 803
Mohamed MARAKARv.UNITED STATES.
No. 1191, Misc.
Niamat A. Mushraf ALI
v.
UNITED STATES.
No. 1234, Misc.
Supreme Court of the United States
June 25, 1962
Joseph F. Walsh, for petitioner in No. 1191.
Harry T. Carter, for petitioner in No. 1234.
Solicitor General Cox, for the United States.
On Petitions for Writs of Certiorari to the United States Court of Appeals for the Third Circuit.
PER CURIAM.
1
The motions for leave to proceed in forma pauperis are granted. On motion of the Solicitor General and upon an examination of the entire record, the petitions for writs of certiorari are granted, the judgments are vacated, and the causes are remanded to the United States District Court for the District of New Jersey with directions to dismiss the indictments.
2
Mr. Justice BLACK, Mr. Justice DOUGLAS, and Mr. Justice BRENNAN join the Court's disposition because they believe that the Double Jeopardy Clause of the Fifth Amendment was an insurmountable barrier to the prosecution of these petitioners under the separate indictments returned on April 26, 1961 charging each petitioner with a substantive offense of illegally bringing opium into this country. See Abbate v. United States, 359 U.S. 187, 196, 79 S.Ct. 666, 3 L.Ed.2d 729 (separate opinion); cf. Petite v. United States 361 U.S. 529, 533, 80 S.Ct. 450, 4 L.Ed.2d 490 (dissenting opinion).
3
Mr. Justice FRANKFURTER took no part in the consideration or decision of these cases.
| 01
|
370 U.S. 478
82 S.Ct. 1432
8 L.Ed.2d 639
MANUAL ENTERPRISES, INC., et al., Petitioners,v.J. Edward DAY, Postmaster General of the United States.
No. 123.
Argued Feb. 26 and 27, 1962.
Decided June 25, 1962.
Stanley M. Dietz, Washington, D.C., for petitioners.
J. William Doolittle, Jr., Washington, D.C., for respondent.
Mr. Justice HARLAN announced the judgment of the Court and an opinion in which Mr. Justice STEWART joins.
1
This case draws in question a ruling of the Post Office Department, sustained both by the District Court and the Court of Appeals, 110 U.S.App.D.C. 78, 289 F.2d 455, barring from the mails a shipment of petitioners' magazines. That ruling was based on alternative determinations that the magazines (1) were themselves 'obscene,' and (2) gave information as to where obscene matter could be obtained, thus rendering them nonmailable under two separate provisions of 18 U.S.C. § 1461, 18 U.S.C.A. § 1461, known as the Comstock Act.1 Certiorari was granted (368 U.S. 809, 82 S.Ct. 37, 7 L.Ed.2d 19) to consider the claim that this ruling was inconsistent with the proper interpretation and application of § 1461, and with principles established in two of this Court's prior decisions. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205.2
2
Petitioners are three corporations respectively engaged in publishing magazines titled MANual, Trim, and Grecian Guild Pictorial. They have offices at the same address in Washington, D.C., and a common president, one Herman L. Womack. The magazines consist largely of photographs of nude, or near-nude, male models and give the names of each model and the photographer, together with the address of the latter. They also contain a number of advertisements by independent photographers offering nudist photographs for sale.
3
On March 25, 1960, six parcels containing an aggregate of 405 copies of the three magazines, destined from Alexandria, Virginia, to Chicago, Illinois, were detained by the Alexandria postmaster, pending a ruling by his superiors at Washington as to whether the magazines were 'nonmailable.' After an evidentiary hearing before the Judicial Officer of the Post Office Department there ensued the administrative and court decisions now under review.
I.
4
On the issue of obscenity, as distinguished from unlawful advertising, the case comes to us with the following administrative findings, which are supported by substantial evidence and which we, and indeed the parties, for the most part, themselves, accept: (1) the magazines are not, as asserted by petitioners, physical culture or 'body-building' publications, but are composed primarily, if not exclusively, for homosexuals, and have no literary, scientific or other merit;3 (2) they would appeal to the 'prurient interest' of such sexual deviates, but would not have any interest for sexually normal individuals; and (3) the magazines are read almost entirely by homosexuals, and possibly a few adolescent males; the ordinary male adult would not normally buy them.
5
On these premises, the question whether these magazines are 'obscene,' as it was decided below and argued before us, was thought to depend solely on a determination as to the relevant 'audience' in terms of which their 'prurient interest' appeal should be judged. This view of the obscenity issue evidently stemmed from the belief that in Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498, this Court established the following single test for determining whether challenged material is obscene: 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' (Footnote omitted.) On this basis the Court of Appeals, rejecting the petitioners' contention that the 'prurient interest' appeal of the magazines should be judged in terms of their likely impact on the 'average person,' even though not a likely recipient of the magazines, held that the administrative finding respecting their impact on the 'average homosexual' sufficed to establish the Government's case as to their obscenity.
6
We do not reach the question thus thought below to be dispositive on this aspect of the case. For we find lacking in these magazines an element which, no less than 'prurient interest,' is essential to a valid determination of obscenity under § 1461, and to which neither the Post Office Department nor the Court of Appeals addressed itself at all: These magazines cannot be deemed so offensive on their face as to affront current community standards of decency—a quality that we shall hereafter refer to as 'patent offensiveness' or 'indecency.' Lacking that quality, the magazines cannot be deemed legally 'obscene,' and we need not consider the question of the proper 'audience' by which their 'prurient interest' appeal should be judged.
7
The words of § 1461, 'obscene, lewd, lascivious, indecent, filthy or vile,' connote something that is portrayed in a manner so offensive as to make it unacceptable under current community mores. While in common usage the words have different shades of meaning,4 the statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex.5 Although the statute condemns such material irrespective of the effect it may have upon those into whose hands it falls, the early case of United States v. Bennett, 24 Fed.Cas. p. 1093, No. 14571, put a limiting gloss upon the statutory language: the statute reaches only indecent material which, as now expressed in Roth v. United States, supra, 354 U.S. at 489, 77 S.Ct. at 1311, 'taken as a whole appeals to prurient interest.' This 'effect' element, originally cast in somewhat different language from that of Roth (see 354 U.S., at 487, 489, 77 S.Ct. at 1310, 1311), was taken into federal obscenity law from the leading English case of Regina v. Hicklin, (1868) L.R. 3 Q.B. 360, of which a distinguished Australian judge has given the following illuminating analysis:
8
'As soon as one reflects that the word 'obscene,' as an ordinary English word, has nothing to do with corrupting or depraving susceptible people, and that it is used to describe things which are offensive to current standards of decency and not things which may induce to sinful thoughts, it becomes plain, I think, that Cockburn, C.J., in * * * R. v. Hicklin * * * was not propounding a logical definition of the word 'obscene,' but was merely explaining that particular characteristic which was necessary to bring an obscene publication within the law relating to obscene libel.6 The tendency to deprave is not the characteristic which makes a publication obscene but is the characteristic which makes an obscene publication criminal. It is at once an essential element in the crime and the justification for the intervention of the common law. But it is not the whole and sole test of what constitutes an obscene libel. There is no obscene libel unless what is published is both offensive according to current standards of decency and calculated or likely to have the effect described in R. v. Hicklin * * *.'7 Regina v. Close, (1948) Vict.L.R. 445, 463, Judgment of Fullagar, J. (Emphasis in original.)
9
The thoughtful studies of the American Law Institute reflect the same two-fold concept of obscenity. Its earlier draft of a Model Penal Code contains the following definition of 'obscene': 'A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest * * * and if it goes substantially beyond customary limits of candor in description or representation of such matters.' A.L.I., Model Penal Code, Tent. Draft No. 6 (1957), § 207.10(2). (Emphasis added.) The same organization's currently proposed definition reads: 'Material is obscene if, considered as a whole, its predominant appeal is to prurient interest * * * and if in addition it goes substantially beyond customary limits of candor in describing or representing such matters.' A.L.I., Model Penal Code, Proposed Official Draft (May 4, 1962), § 251.4(1). (Emphasis added.)8
10
Obscenity under the federal statute thus requires proof of two distinct elements: (1) patent offensiveness; and (2) 'prurient interest' appeal. Both must conjoin before challenged material can be found 'obscene' under § 1461. In most obscenity cases, to be sure, the two elements tend to coalesce, for that which is patently offensive will also usually carry the requisite 'prurient interest' appeal. It is only in the unusual instance where, as here, the 'prurient interest' appeal of the material is found limited to a particular class of persons that occasion arises for a truly independent inquiry into the question whether or not the material is patently offensive.
11
The Court of Appeals was mistaken in considering that Roth made 'prurient interest' appeal the sole test of obscenity.9 Reading that case as dispensing with the requisite of patently offensive portrayal would be not only inconsistent with § 1461 and its common-law background, but out of keeping with Roth's evident purpose to tighten obscenity standards. The Court there both rejected the 'isolated excerpt' and 'particularly susceptible persons' tests of the Hicklin case, 354 U.S., at 488—489, 77 S.Ct., at 1310—1311, and was at pains to point out that not all portrayals of sex could be reached by obscenity laws but only those treating that subject 'in a manner appealing to prurient interest.' 354 U.S., at 487, 77 S.Ct., at 1310. That, of course, was but a compendious way of embracing in the obscenity standard both the concept of patent offensiveness, manifested by the terms of § 1461 itself, and the element of the likely corruptive effect of the challenged material, brought into federal law via Regina v. Hicklin.
12
To consider that the 'obscenity' exception in 'the area of constitutionally protected speech or press,' Roth, at 485, 77 S.Ct. at 1309, does not require any determination as to the patent offensiveness vel non of the material itself might well put the American public in jeopardy of being denied access to many worth-while works in literature, science, or art. For one would not have to travel far even among the acknowledged master-pieces in any of these fields to find works whose 'dominant theme' might, not beyond reason, be claimed to appeal to the 'prurient interest' of the reader or observer. We decline to attribute to Congress any such quixotic and deadening purpose as would bar from the mails all material, not patently offensive, which stimulates impure desires relating to sex. Indeed such a construction of § 1461 would doubtless encounter constitutional barriers. Roth, at 487 489, 77 S.Ct. at 1310—1311. Consequently we consider the power exercised by Congress in enacting § 1461 as no more embracing than the interdiction of 'obscenity' as it had theretofore been understood. It is only material whose indecency is self-demonstrating and which, from the standpoint of its effect, may be said predominantly to appeal to the prurient interest that Congress has chosen to bar from the mails by the force of § 1461.
13
We come then to what we consider the dispositive question on this phase of the case. Are these magazines offensive on their face? Whether this question be deemed one of fact or of mixed fact and law, see Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5, 114—115 (1960), we see no need of remanding the case for initial consideration by the Post Office Department or the Court of Appeals of this missing factor in their determinations. That issue, involving factual matters entangled in a constitutional claim, see Grove Press, Inc., v. Christenberry, 276 F.2d 433, 436, is ultimately one for this Court. The relevant materials being before us, we determine the issue for ourselves.
14
There must first be decided the relevant 'community' in terms of whose standards of decency the issue must be judged. We think that the proper test under this federal statute, reaching as it does to all parts of the United States whose population reflects many different ethnic and cultural backgrounds, is a national standard of decency. We need not decide whether Congress could constitutionally prescribe a lesser geographical framework for judging this issue10 which would not have the intolerable consequence of denying some sections of the country access to material, there deemed acceptable, which in others might be considered offensive to prevailing community standards of decency. Cf. Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412.
15
As regards the standard for judging the element of 'indecency,' the Roth case gives little guidance beyond indicating that the standard is a constitutional one which, as with 'prurient interest,' requires taking the challenged material 'as a whole.' Roth, at 489, 77 S.Ct. at 1311. Being ultimately concerned only with the question whether the First and Fourteenth Amendments protect material that is admittedly obscene,11 the Court there had no occasion to explore the application of a particular obscenity standard. At least one important state court and some authoritative commentators have considered Roth and subsequent cases12 to indicate that only 'hard-core' pornography can constitutionally be reached under this or similar state obscenity statutes. See, People v. Richmond County News, Inc., 9 N.Y.2d 578, 216 N.Y.S.2d 369, 175 N.E.2d 681; Lockhart and McClure, supra, at 58—60. Whether 'hard-core' pornography, or something less, be the proper test, we need go no further in the present case than to hold that the magazines in question, taken as a whole, cannot, under any permissible constitutional standard, be deemed to be beyond the pale of contemporary notions of rudimentary decency.
16
We cannot accept in full the Government's description of these magazines which, contrary to Roth (354 U.S., at 488—489, 77 S.Ct. 1310—1311), tends to emphasize and in some respects overdraw certain features in several of the photographs, at the expense of what the magazines fairly taken as a whole depict.13 Our own independent examination of the magazines leads us to conclude that the most that can be said of them is that they are dismally unpleasant, uncouth, and tawdry. But this is not enough to make them 'obscene.' Divorced from their 'prurient interest' appeal to the unfortunate persons whose patronage they were aimed at capturing (a separate issue), these portrayals of the male nude cannot fairly be regarded as more objectionable than many portrayals of the female nude that society tolerates. Of course not every portrayal of male or female nudity is obscene. See Parmelee v. United States, 72 App.D.C. 203, 206 208, 113 F.2d 729, 732—734; Sunshine Book Co. v. Summerfield, 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 352; Mounce v. United States, 355 U.S. 180, 78 S.Ct. 267, 2 L.Ed.2d 187. Were we to hold that these magazines, although they do not transcend the prevailing bounds of decency, may be denied access to the mails by such undifferentiated legislation as that before us, we would be ignoring the admonition that 'the door * * * into this area (the First Amendment) cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests' (footnote omitted). Roth, at 488, 77 S.Ct. at 1311.14
17
We conclude that the administrative ruling respecting nonmailability is improvident insofar as it depends on a determination that these magazines are obscene.
II.
18
There remains the question of the advertising. It is not contended that the petitioners held themselves out as purveyors of obscene material, or that the advertisements, as distinguished from the other contents of the magazines, were obscene on their own account. The advertisements were all by independent third-party photographers. And, neither with respect to the advertisements nor the magazines themselves, do we understand the Government to suggest that the 'advertising' provisions of § 1461 are violated if the mailed material merely 'gives the leer that promises the customer some obscene pictures.' United States v. Hornick, 3 Cir., 229 F.2d 120, 121. Such an approach to the statute could not withstand the underlying precepts of Roth. See, Poss v. Christenberry, D.C., 179 F.Supp. 411, 415; cf. United States v. Schillaci, D.C., 166 F.Supp. 303, 306. The claim on this branch of the case rests, then, on the fact that some of the third-party advertisers were found in possession of what undoubtedly may be regarded as 'hard-core' photographs,15 and that postal officials, although not obtaining the names of the advertisers from the lists in petitioners' magazines, received somewhat less offensive material through the mails from certain studios which were advertising in petitioners' magazines.
19
A question of law must first be dealt with. Should the 'obscene-advertising' proscription of § 1461 be construed as not requiring proof that the publisher knew that at least some of his advertisers were offering to sell obscene material? In other words, although the criminal provisions of § 1461 do require scienter (note 1, supra), can the Post Office Department in civil proceedings under that section escape with a lesser burden of proof? We are constrained to a negative answer. First, Congress has required scienter in respect of one indicted for mailing material proscribed by the statute. In the constitutional climate in which this statute finds itself, we should hesitate to attribute to Congress a purpose to render a publisher civilly responsible for the innocuous advertisements of the materials of others, in the absence of any showing that he knew that the character of such materials was offensive. And with no express grant of authority to the Post Office Department to keep obscene matter from the mails (see note 2, supra), we should be slow to accept the suggestion that an element of proof expressly required in a criminal proceeding may be omitted in an altogether parallel civil proceeding. Second, this Court's ground of decision in Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, indicates that a substantial constitutional question would arise were we to construe § 1461 as not requiring proof of scienter in civil proceedings. For the power of the Post Office to bar a magazine from the mails, if exercised without proof of the publisher's knowledge of the character of the advertisements included in the magazine, would as effectively 'impose a severe limitation on the public's access to constitutionally protected matter,' 361 U.S., at 153, 80 S.Ct. at 218, as would a state obscenity statute which makes criminal the possession of obscene material without proof of scienter. Since publishers cannot practicably be expected to investigate each of their advertisers, and since the economic consequences of an order barring even a single issue of a periodical from the mails might entail heavy financial sacrifice, a magazine publisher might refrain from accepting advertisements from those whose own materials could conceivably be deemed objectionable by the Post Office Department. This would deprive such materials, which might otherwise be entitled to constitutional protection, of a legitimate and recognized avenue of access to the public. To be sure, the Court found it unnecessary in Smith to delineate the scope of scienter which would satisfy the Fourteenth Amendment. Yet it may safely be said that a federal statute which, as we construe it, required the presence of that element is not satisfied, as the Government suggests it might be, merely by showing that a defendant did not make a 'good faith effort' to ascertain the character of his advertiser's materials.
20
On these premises we turn to the record in this case. Although postal officials had informed petitioners' president, Womack, that their Department was prosecuting several of his advertisers for sending obscene matter through the mails, there is no evidence that any of this material was shown to him. He thus was afforded no opportunity to judge for himself as to its alleged obscenity. Contrariwise, one of the government witnesses at the administrative hearing admitted that the petitioners had deleted the advertisements of several photographic studios after being informed by the Post Office that the proprietors had been convicted of mailing obscene material.16 The record reveals that none of the postal officials who received allegedly obscene matter from some of the advertisers obtained their names from petitioners' magazines; this material was received as a result of independent test checks. Nor on the record before us can petitioners be linked with the material seized by the police. Note 15, supra. The only such asserted connection—that 'hard core' matter was seized at the studio of one of petitioners' advertisers—falls short of an adequate showing that petitioners knew that the advertiser was offering for sale obscene matter. Womack's own conviction for sending obscene material through the mails, Womack v. United States, 111 U.S.App.D.C. 8, 294 F.2d 204, is remote from proof of like conduct on the part of the advertisers. At that time he was acting as president of another studio; the vendee of the material, while an advertiser in petitioners' magazines, had closed his own studio before the present issues were published. Finally, the general testimony by one postal inspector to the effect that in his experience advertisers of this character, after first leading their customers on with borderline material, usually followed up with 'hardcore' matter, can hardly be deemed of probative significance on the issue at hand.
21
At best the Government's proof showed no more than that petitioners were chargeable with knowledge that these advertisers were offering photographs of the same character, and with the same purposes, as those reflected in their own magazines. This is not enough to satisfy the Government's burden of proof on this score.17
22
In conclusion, nothing in this opinion of course remotely implies approval of the type of magazines published by these petitioners, still less of the sordid motives which prompted their publication. All we decide is that on this record these particular magazines are not subject to repression under § 1461.
23
Reversed.
24
Mr. Justice BLACK concurs in the result.
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 BRENNAN, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join, concurring in the reversal.
28
I agree that the judgment below must be reversed, though for a reason different from my Brother HARLAN'S. This is the first occasion on which the Court has given plenary review1 to a Post Office Department order holding matter 'nonmailable' because obscene.
29
Petitioners, publishers of certain magazines, employ the mails in the distribution of about half of their claimed circulation of 25,000. On March 25, 1960, petitioners deposited 405 copies of their publications for transmission as second class mail from Alexandria, Virginia, to Chicago. However, the Alexandria postmaster, acting, apparently without notice to petitioners, on his belief that the magazines might be obscene and therefore 'nonmailable' under 18 U.S.C. § 1461, 18 U.S.C.A. § 1461, withheld delivery and forwarded samples to the General Counsel of the Post Office Department. On April 5 and 7 that official notified petitioners not only that the magazines were being withheld from delivery because of his opinion that they were nonmailable, but also that no formal hearing would be held since an insufficient monetary value was involved. Shortly thereafter, on April 11, 1960, petitioners requested a Post Office hearing, and also sought injunctive relief in the District Court for the District of Columbia against this stoppage of their mailing. On the same day the Post Office Judicial Officer reversed the General Counsel and ordered a hearing, and thereafter the District Court refused temporary relief. On April 21, after pleadings had been filed, the hearing was begun before the Judicial Officer. On April 25 petitioners' injunction suit was dismissed on the condition that they might seek further relief if final administrative action was not forthcoming by April 28. On April 28, one month and three days after the mailing, the Judicial Officer handed down his opinion holding the magazines obscene and nonmailable, thus opening petitioners' way into court.
30
On May 13, petitioners filed the complaint now before us, alleging that the magazines were not obscene, that respondent's action in withholding them from the mails was 'unlawful and inequitable * * * calculated * * * to censor and harass plaintiffs and * * * a prior restraint designed to deprive the plaintiffs of their rights under the First Amendment * * *,' and requesting temporary and permanent injunctive relief. Petitioners then moved for summary judgment, arguing, inter alia, that 'the Post Office Department held a time-consuming hearing, the product of which was an Order contrary to the established law of the United States * * *. This amounts to the most obnoxious and unconstitutional censorship. The principal effect of the administrative hearing * * * is to delay action of this Court. * * * Plaintiffs assert that the Post Office has conducted an ex parte administrative prior restraint treading upon an area of constitutional sensitivity apart from the substantive problems of determining whether or not the magazines are obscene. * * * Further, plaintiffs argue that the entire civil procedure followed by the Post Office based upon a criminal statute raises doubts of constitutionality.' Respondent, too, moved for summary judgment. His motion was granted and the complaint dismissed without opinion. The Court of Appeals affirmed, holding the magazines obscene.
31
In addition to the question whether the particular matter is obscene, the Post Office order raises insistent questions about the validity of the whole procedure which gave rise to it, vital to the orderly development of this body of law and its administration. We risk erosion of First Amendment liberties unless we train our vigilance upon the methods whereby obscenity is condemned no less than upon the standards whereby it is judged. Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127; Kingsley Books, Inc., v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469; see also Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205. Questions of procedural safeguards loom large in the wake of an order such as the one before us. Among them are: (a) whether Congress can close the mails to obscenity by any means other than prosecution of its sender; (b) whether Congress, if it can authorize exclusion of mail, can provide that obscenity be determined in the first instance in any forum except a court, and (c) whether, even if Congress could so authorize administrative censorship, it has in fact conferred upon postal authorities any power to exclude matter from the mails upon their determination of its obscene character.2
32
Lower courts and judges have been troubled by these questions,3 but this Court has not had occasion to decide them. At least question (c) is before us now.4 It surpasses in general significance even the important issue of the standards for judging this material's 'mailability.' Moreover, dealing with the case on this ground involves less constitutional difficulty than inheres in others. The conclusion that the Postmaster General is acting ultra vires because Congress has not granted the power which he here asserts, while greatly influenced by constitutional doubts, does not require a decision as to whether any establishment of administrative censorship could be constitutional. Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586; Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204.5
33
Mr. Justice Holmes has said: 'The United States may give up the postoffice when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues and it would take very strong language to convince me that Congress ever intended to give such a practically despotic power to any one man.' Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 437, 41 S.Ct. 352, 363, 65 L.Ed. 704 (dissenting opinion).
34
Whether Congress, by its enactment or amendment of 18 U.S.C. § 1461, 18 U.S.C.A. § 1461 (a part of the Criminal Code), has authorized the Postmaster General to censor obscenity, is our precise question. The Government relies upon no other provision to support the constitutionally questionable power of administrative censorship of this material. That power is inferred from the declaration that every item proscribed in § 1461 is 'nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.' Even granting that these words on their face permit a construction allowing the Post Office the power it asserts, their use in a criminal statute, their legislative history, and the contrast with the words and history of other provisions dealing with similar problems, raise the most serious doubt that so important and sensitive a power was granted by so perfunctory a provision. The area of obscenity is honeycombed with hazards for First Amendment guaranties, and the grave constitutional questions which would be raised by the grant of such a power should not be decided when the relevant materials are so ambiguous as to whether any such grant exists.
I.
35
The origin of § 1461 is briefly told.6 It was the tag end of a bill drawn in 1865 to meet Post Office requests for various administrative changes. Its first version read:
36
'That no obscene book, pamphlet, picture, print, or other publication of a vulgar and indecent character, shall be admitted into the mails of the United States; but all such obscene publications deposited in or received at any post office, or discovered in the mails, shall be seized and destroyed, or otherwise disposed of, as the Postmaster General shall direct. And any person or persons who shall deposit or cause to be deposited in any post office or branch post office of the United States, for mailing or for delivery, an obscene book, pamphlet, picture, print, or other publication, knowing the same to be of a vulgar and indecent character, shall be deemed guilty of a misdemeanor, and, being duly convicted thereof, shall, for every such offense, be fined not more than $500, or imprisoned not more than one year, or both, according to the circumstances and aggravations of the offense.'
37
In offering this proposal, Chairman Collamer of the Senate Post Office Committee took pains to point out that it 'may be liable to some objection. * * * I am not perhaps entirely satisfied with it,' and Senator Reverdy Johnson, concerned about postmasters breaking seals, immediately took up Chairman Collamer's suggestion that only the penal provision be adopted. Chairman Collamer, agreeing that the nonpenal clause 'might be made a precedent for undertaking to give (a postmaster) a sort of censorship over the mails,' said he would be as happy if it were dropped. Senator Johnson then moved to strike it: '(I)t would be establishing a very bad precedent to give authority to postmasters to take anything out of the mail.' He acknowledged that much material is sent uncovered, but thought the penal provision sufficient to meet the evil. However, Senator Sherman observed:
38
'I would much prefer, if the Senator would be satisfied, with simply striking out the second clause of the first (sentence). I think the prohibition against publications of this character going into the mails ought to stand. We are well aware that many of these publications are sent all over the country from the city of New York with the names of the parties sending them on the backs, so that the postmasters without opening the mail matter may know that it is offensive matter, indecent and improper to be carried in the public mails. I think, therefore, the legislative prohibition against carrying such matter when it is known to the postmasters should be left. Probably the second clause allowing him to open mail matter should be struck out * * *.'
39
Senator Johnson acquiesced and the bill was then passed, reading:
40
'That no obscene book, pamphlet, picture, print, or other publication of a vulgar and indecent character, shall be admitted into the mails of the United States; any person or persons * * *.' Cong.Globe, 38th Cong., 2d Sess. 660—661 (1865); 13 Stat. 507.
41
There are two possible constructions of § 1461 on the basis of this brief Senate discussion. One possibility is that short of breaking seals,7 the postmasters could remove matter which they thought from its face or the name of its sender to be obscene. The second construction is that postmasters could remove matter but only to turn it over to the appropriate authorities as the proposed subject of a criminal prosecution—and also of course after that material had been determined, in a criminal trial of its sender, to be obscene. Support for this second construction is found not only in the brief 1865 Senate consideration itself but also in an 1888 statute amending § 1461, and enacting a section banning material with obscene matter on its face and—unlike § 1461 explicitly providing that it 'shall be withdrawn from the mails under such regulations as the Postmaster-General shall prescribe.'8
42
The 1865 Senate discussion is not unambiguous, but I cannot suppose that Senator Johnson—who had already noted his awareness that much obscene material was discoverable without breaking seals, and even so, his determined opposition to its being stopped would have accepted Senator Sherman's suggestion had he understood it to mean more than that the Post Office could stop obviously questionable matter for the purpose of transmitting it to prosecuting authorities, could stop matter already held obscene if it were sent again, and could investigate matter sent by persons previously convicted and, if the matter were found violative, could present it to the prosecuting authorities. I believe this is the correct construction of the 1865 enactment. But at least it is arguably correct, and necessary if we are to avoid the section's probable constitutional infirmity9 (see Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; Summerfield v. Sunshine Book Co., 95 U.S.App.D.C. 169, 221 F.2d 42) if construed as a provision allowing the Postmaster General to exclude all matter sent by a person who had previously sent violative matter. Such an exclusion by attaint could not be justified by the 'hoary dogma * * * that the use of the mails is a privilege on which the Government may impose such conditions as it chooses, (for that) has long since evaporated.' Roth v. United States, 354 U.S. 476, 504, 77 S.Ct. 1304, 1319, 1 L.Ed.2d 1498 (dissenting opinion); Hannegan v. Esquire, Inc., 327 U.S., at 156, 66 S.Ct. at 461, 90 L.Ed. 586; Speiser v. Randall, 357 U.S. 513, 518, 78 S.Ct. 1332, 1338, 2 L.Ed.2d 1460.
43
Subsequent developments concerning the removal of matter from the mails reveal a nearly contemporaneous strong distaste for and awareness of constitutional doubts about nonjudicial censorship, such as reflects meaningfully on the ambiguity surrounding § 1461's enactment. That ambiguity has persisted throughout § 1461's history of amendment, reconsideration, and codification. In the concurrent history of Congress' handling of related problems, there has been in each instance either a clear grant of power to the Postmaster General or, for matters as inextricably intertwined with the First Amendment as obscenity, a provision for judicial rather than administrative process. Nothing is found to suggest that one should resolve the ambiguity in 1865 to find a grant of the power of administrative censorship. Compare Lewis Publishing Co. v. Morgan, 229 U.S. 288, 311, 33 S.Ct. 867, 873, 57 L.Ed. 1190.
44
In 1868, in considering a provision making it unlawful to deposit letters or circulars concerning lotteries, House Conferees struck a Senate proposal which would have authorized postmasters to remove from the mail and deposit in dead letter offices any letters or circulars thought to concern lotteries. House Postal Committee Chairman Farnsworth explained 'We thought that was a dangerous power to confer upon postmasters, and therefore we have stricken it out. That section provides that it shall be unlawful to deposit in the mails * * * which we thought would be a wise provision. But we thought it would not be wise to give postmasters this extraordinary power to be exercised upon a mere suspicion.' Cong.Globe, 40th Cong., 2d Sess. 4412 (1868). Opinions of the Attorney General advising as to the postmasters' authority under this lottery provision emphasized the necessity for explicit legislative authorization to warrant removal of material from the mails. Those opinions cited examples of provisions containing such express authorization but, significantly, did not include § 1461—an important omission in the light of the observation of the Attorney General that aside from the examples he gave '(i)f there are other provisions permitting a detention of letters by a postmaster, they have escaped my attention. It is believed that, at least, there are no others affecting the subject of the present inquiry.' Furthermore, in describing the authorizations he did find, the Attorney General said: 'It will be seen that none of these authorize what can properly be called a 'seizure' of any suspected letters by a postmaster, because, probably, he is not deemed the proper functionary to bring to trial and punishment those violating the postal laws.'10
45
In 1872, § 1461 was amended as part of a codification of postal legislation. The amendment added a proscription against the mailing of 'any letter upon the envelope of which, or postal card upon which scurrilous epithets may have been written or printed, or disloyal devices printed or engraved * * *.' 17 Stat. 302.11 The section was further revised when the Comstock Law was enacted in 1873. 17 Stat. 598. That statute established penalties for dealing in or in any way publishing obscenity or any article of an immoral nature in areas under federal jurisdiction, expanded the list of items not to be mailed to include matter intended to aid the procuring of abortion, and banned the importation of all such items. When the bill came to the floor, Senator Casserly objected to the provision allowing customs officers to seize prohibited items: 'I do not know whether it can be left to officers of the custom-house to determine with safety what kind of literature or what sort of matter is to be admitted.' Cong.Globe, 42d Cong., 3d Sess. 1436 (1873). The bill was accordingly changed to authorize customs officers simply to detain the items, and then proceed in a federal court to condemn them, if the federal judge were satisfied that they must be condemned. Id., at 1525. There is no suggestion that customs officers were thought to be less trustworthy than postal officers;12 this insistence upon judicial proceedings shows plainly the congressional aversion to administrative censorship.
46
The Comstock bill received but scant and hasty consideration.13 As passed, its language was susceptible of a reading which would fail to penalize the mailing of obscene or indecent literature, and reach only actual abortifacients. Closing this inadvertent gap was the sole purpose14 of an 1876 amendment, 19 Stat. 90, which made several language changes; among them, the substitution of the words of which the Government makes so much—'declared to be non-mailable matter, (which) shall not be conveyed in the mails, nor delivered from any post-office nor by any letter-carrier'—for the more cursory '(which) shall (not) be carried in the mail.' Moreover, the 1876 discussion evinces the understanding that the only obscene materials removable by the Post Office were those which were to be submitted as, or which already had been, the subject of a criminal prosecution. The manager of the amendment assured the House: 'Nor, sir, does this bill give any right to any postmaster to open or to interfere with anybody's mail. It is like anything else, before you can convict, you must offer and make proof.' During the debate a different speaker said: 'Whenever a jury in any locality in the country shall find that a paper contains matter which may be devoted to a purpose which they deem immoral not only indecent, but immoral—the jury may convict the man who sends the paper or the man who receives it by mail, and the postmaster is authorized to exclude that newspaper from the mail.' A third speaker, in urging that the word 'scurrilous' be removed, warned: 'I do not object to the purification of the mails, but I would like the committee when they reconsider this bill not to go too far in giving postmasters discretion.' Another Congressman feared that the severity of the penalties would make the law a dead letter, because judges and juries would be unwilling to convict. Thus the tenor of the entire debate reflected the premise that § 1461 had only a criminal application. No one suggested that it also authorized administrative censorship. 4 Cong.Rec. 695—696.15 And see 8 Cong.Rec. 697 (1879).
47
Especially significant in pointing up the purely penal application of § 1461 are the legislative events of 1888. An amendment of but a few months' duration changed the law on such postal crimes as counterfeiting money orders. It included a provision penalizing the mailing of any matter upon the envelope or outside cover of which was indecent, scurrilous, threatening, etc., language.16 The provision was promptly amended in the same session because 'there was a suspicion that an implied power was given to postmasters to open letters. Of course there was no such intention, and this (new) bill eliminates that objectionable feature * * *.' 19 Cong.Rec. 8189.17
48
But even more significantly, the new enactment transferred to a new section, § 1463, 25 Stat. 496, the ban of § 1461 which, in the 1876 version (19 Stat. 90), had reached 'every letter upon the envelope of which, or postal card upon which, indecent, lewd, obscene, or lascivious delineations, epithets, terms, or language may be written or printed'; and § 1463, instead of merely declaring that the listed matter was nonmailable and was not to be conveyed or delivered, provided that those items 'shall be withdrawn from the mails under such regulations as the Postmaster-General shall prescribe. * * *' It is strange, I think, that § 1461—amended at the same time as § 1463 was enacted—was not amended also to include an explicit provision for withdrawal from the mails, if authority for withdrawal had been Congress' intention. But Congress did not contemplate any general administrative censorship or obscenity. The House discussion expressed the agreement that besides the power to punish, there should be no more than the most limited Post Office power to stop mail—and § 1463 states that limitation; and the Senate debate, focusing almost entirely upon how severe the penalties should be, reinforced the restrictions upon the postmasters and underlined that § 1461 is exclusively penal. See 19 Cong.Rec. 7660—7662, 8189.
49
The last congressional dealing with § 1461 which is pertinent to our inquiry occurred in 1909, when again that section was amended, this time to bar more abortifacients and 'every letter, packet, or package, or other mail matter containing any filthy, vile, or indecent thing.'18 Though committee reports are unenlightening, the House discussion makes plain that the changes were intended to reverse the limitations stated in Swearingen v. United States, 161 U.S. 446, 16 S.Ct. 562, 40 L.Ed. 765, that the statute applied only to 'that form of immorality which has relation to sexual impurity,' and that its words had 'the same meaning as is given them at common law in prosecutions for obscene libel.' 161 U.S., at 451, 16 S.Ct. at 563; 42 Cong.Rec. 995—999, 43 Cong.Rec. 283—284.19 The two brief House discussions suggest that there were members who did believe that the Post Office had some power to remove obscene mail, even apart from presenting it for criminal prosecution; it was analogized to fraudulent matter. But nothing characterizes the discussion so much as its ambiguity, and its concern lest the Post Office acquire powers whose exercise would amount to censorship. See 42 Cong.Rec. 995—998. And see 101 Cong.Rec. 3804, 7798, 8241—8242 (1955).
II.
50
Section 1463 is not the only statute which goes further than § 1461 towards authorizing Post Office censorship. Five other criminal statutes prohibiting the introduction of various matter into the mails either contain within themselves or have direct counterparts in the postal laws which contain explicit authorizations to the Postmaster General to remove or return such matter.20 In sharp contrast, § 1461—itself silent as to sanctions except for the provision of criminal penalties—has no counterpart in the postal laws. It is mentioned once in the recodification of 1960—in § 4001(a), a section collecting the various provisions designating matter as nonmailable and which, the Committee Report indicates and the floor discussion and reviser's note assure, was not intended to change existing law21—ambiguous throughout.
51
The removal of obscene material has not been the Post Office's only weapon against it. In 1950, § 4006 was enacted granting special powers over the mail of any person found, to the Postmaster General's satisfaction, to be using the mails to obtain money for or to be providing information about any obscene or vile article or thing: Postmasters could mark mail sent to that person 'unlawful' and return it to its sender; and they could forbid payment to that person of any money orders or postal notes, and return the funds to the senders.22 The clarity of the grant of these powers is no less noteworthy than their subsequent history. In 1956 the Postmaster General sought23 and obtained the power to enter an order, pending the administrative proceeding to determine whether § 4006 should be invoked, under which all mail addressed to the respondent could be impounded. The order was to expire at the end of 20 days unless the Postmaster General sought, in a Federal District Court, an order continuing the impounding. The 20-day order by the Postmaster General, and its extension by a court, were to issue only if 'necessary to the effective enforcement of (§ 4006).'24 In 1959, extensive hearings were held in the House on the Post Office's request that the 20-day period be extended to 45 days, and that the standard of necessity be changed to 'public interest.'25 Instead, what was enacted in 1960 stripped the Postmaster General of his power to issue an interim order for any period, and directed him to seek a temporary restraining order in a Federal District Court.26
52
Congress gave full consideration to censorship of obscene material when it dealt with the Tariff Act of 1930. Prior to that year, the customs laws provided for the exclusion from the United States of obscene written matter, but required resort in the first instance to a Federal District Court for a determination of the matter's obscenity.27 In the course of their work on the bill, the House Ways and Means Committee added language to exclude seditious as well as obscene material, and also replaced the judicial procedure with the generally applicable procedures for seizure by the customs officers, entailing judicial review only at the instance of a would-be importer. See H.R.Rep. No. 7, 71st Cong., 1st Sess., at 160, 185, 190, 244—245. It was in this form that the bill passed the House, and was reported by the Senate Committee, see S.Rep. No. 37, 71st Cong., 1st Sess. 60; 71 Cong.Rec. 4458 (remarks of Senator Smoot), but on the Senate floor it ran into strong expressions against customs censorship: fears about administrative determinations were enhanced by felt difficulties in applying the statute's proscriptions to particular material. Judicial review was thought insufficient, for that would leave the initiative for resort to the courts with the person subjected to the censorship: expense, inconvenience, and public embarrassment would, it was believed, result in unreviewed administrative exclusion. See generally 71 Cong.Rec. 4432—4439; 4445—4471. In support of the idea that the initial decision should be made by a court rather than a customs inspector, 72 Cong.Rec. 5417—5423, Senator Walsh of Montana said:
53
'Everybody of right mind wants to prevent the circulation of such books as the Senator from Utah has in mind. That is not the point at all. Those immoral and obscene and indecent publications are printed in this country, as well as abroad * * *. How do we reach the situation? We make it a crime to circulate those books in this country, and we punish that offense the same as we punish every other offense, by proper prosecution. Likewise, we prohibit the circulation of material of that kind in the mails, and if anybody circulates it in the mails he becomes liable to indictment and prosecution. That is the way we endeavor to deal with that thing.' 72 Cong.Rec. 5419. See also id., at 5425, 5430. But compare the remarks of Senators Copeland, Cutting, and Fletcher, 71 Cong.Rec., at 4435, 4450.
54
He then offered an amendment to impose criminal sanctions for importing proscribed matter, and to require the matter's detention by the customs for transmittal to the appropriate authorities to commence judicial forfeiture proceedings. Id., at 5421. However, there were misgivings about the criminal sanction; it was thought by some to jeopardize borderline activity too seriously. Id., at 5423—5431. The Senate passed a provision corresponding to Senator Walsh's amendment, but without a criminal sanction, 72 Cong.Rec. 5501—5520, and this was enacted into law. Thus the House Committee's attempt to revert from judicial to administrative determinations in the initial phase of customs censorship was emphatically rebuffed.
III.
55
It is clear that the Post Office has long practiced administrative censorship of allegedly obscene mailings generally. However, the formal regulations prescribing a procedure are new.28 The practice was described in 1952 by the Solicitor of the Department when testifying before a congressional committee:
56
'(W)e have an informal procedure, which, so far, hasn't been considered or tested out in the court, so we have gotten by with it so far. That is where a postmaster finds obscene matter at the point of entry of the mail into the post office, and if he is in doubt as to whether it is good or bad he will send it to the Solicitor's office for a ruling. * * *'
He also said:
57
'If we had to hold hearings on all of those, if any court should ever decide that those hearings also come under the Administrative Procedure Act, we are just hopelessly sunk, that is all; we are just lost.
58
'They may, but they have never taken us into court on it. We just hope that we get by with it as long as we can.'29
And:
59
'(S)ometimes you can get five people together, and you can give them five pieces of mail, and ask them to mark them, and you will get five different results, because in some cases it is just one of those things that depends on your own personal ideas and your own bringing up; it depends upon how strongly you feel about things, and there are some types of that material that you just can't get two people to agree on no matter how reasonably and how objectively they look upon it. It is just an honest difference of opinion. We experience it all the time, so we have our conferences, and we decide what is going to be the best thing to do. * * *
60
'We have no trouble with prosecutions on things that are definitely obscene, but it is this material that is this way and that way that is very, very difficult to prosecute.' Hearings before the Select Committee on Current Pornographic Materials, House of Representatives, on Investigation of Literature Allegedly Containing Objectionable Material, 82d Cong., 2d Sess., 281, 282 (1952).
61
It also is clear that this was not the first or last occasion on which Post Office practice has been brought to the attention of a congressional committee.30 But the report of the 1952 Select Committee, which listed § 1461 as a criminal statute, certainly did not dispel the continuing ambiguity surrounding that section. And the report said:
62
'There are other means of handling this problem than by the ban of the censor, means which can be applied without danger of infringing on the freedom of the press * * *.'31
63
But, in any event, testimony before committees, committee reports, and administrative usurpation, do not, either singly or collectively, suffice to establish authorization.
IV.
64
We have sustained the criminal sanctions of § 1461 against a challenge of unconstitutionality under the First Amendment. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. We have emphasized, however, that the necessity for safeguarding First Amendment protections for nonobscene materials means that Government 'is not free to adopt whatever procedures it pleases for dealing with obscenity * * * without regard to the possible consequences for constitutionally protected speech.' Marcus v. Search Warrant, 367 U.S. 717, 731, 81 S.Ct. 1708, 1716, 6 L.Ed.2d 1127. I imply no doubt that Congress could constitutionally authorize a noncriminal process in the nature of a judicial proceeding under closely defined procedural safeguards. But the suggestion that Congress may constitutionally authorize any process other than a fully judicial one immediately raises the gravest doubts. However, it is enough to dispose of this case that Congress has not, in § 1461, authorized the Postmaster General to employ any process of his own to close the mails to matter which, in his view, falls within the ban of that section. 'The provisions * * * would have to be far more explicit for us to assume that Congress made such a radical departure from our traditions and undertook to clothe the Postmaster General with the power to supervise the tastes of the reading public of the country.' Hannegan v. Esquire, Inc., 327 U.S., at 156, 66 S.Ct. at 461, 90 L.Ed. 586. I, therefore, concur in the judgment of reversal.
65
Mr. Justice CLARK (dissenting).
66
While those in the majority like ancient Gaul are split into three parts, the ultimate holding of the Court today, despite the clear congressional mandate found in § 1461, requires the United States Post Office to be the world's largest disseminator of smut and Grand Informer of the names and places where obscene material may be obtained. The Judicial Officer of the Post Office Department, the District Court, and the Court of Appeals have all found the magazines in issue to be nonmailable on the alternative grounds that they are obscene and that they contain information on where obscene material may be obtained. The Court, however, says that these magazines must go through the mails. Brother HARLAN, writing for himself and Brother STEWART, finds that the magazines themselves are unobjectionable because § 1461 is not so narrowly drawn as to prohibit the mailing of material 'that incites immoral sexual conduct,' and that the presence of information leading to obscene material does not taint the magazines because their publishers were unaware of the true nature of this information. Brother BRENNAN, joined by THE CHIEF JUSTICE and Brother DOUGLAS, finds that § 1461 does not authorize the Postmaster General through administrative process to close the mails to matter included within its proscriptions. Since in my view the Postmaster General is required by § 1461 to reject nonmailable matter, I would affirm the judgment on the sole ground that the magazines contain information as to where obscene material can be obtained and thus are nonmailable. I, therefore, do not consider the question of whether the magazines as such are obscene.
I.
67
The procedures followed below can be described briefly. Petitioners deposited in the Post Office in Alexandria, Virginia, six parcels containing 405 copies of three magazines which they published. The parcels were directed to petitioners' agent in Chicago and marked as second class matter. Being unsealed and subject to inspection,1 the Postmaster noticed that the material appeared to be obscene. Under the regulations of the Post Office Department in effect since 1902, the Alexandria Postmaster notified the General Counsel of the Post Office Department in Washington and submitted samples of the material; the General Counsel determined the magazines to be nonmailable under § 1461 and notified petitioners' president. Petitioners sought injunctive relief against the Department in the District Court on the grounds that the magazines did not violate § 1461 and the procedure used amounted to an unconstitutional 'ex parte administrative prior restraint,' but the suit was dismissed for determination of the issue at an administrative hearing provided for by the Department's regulations. After a full hearing, at which petitioners did not dispute the congressional authorization to reject the six parcels for second class mailings, the Judicial Officer declared the material nonmailable. Petitioners contested this finding by judicial review in the District Court, where the action of the Judicial Officer was upheld.
68
Mr. Justice BRENNAN, as I have indicated, has reached the conclusion that when the Congress originally passed the Act in question some 97 years ago it granted no power to the Post Office to refuse to receive and carry matter declared by the Act to be nonmailable. Since this point was neither presented below nor argued here, I do not believe it to be properly before us. Brother BRENNAN, however, rests his concurring opinion on it and for that reason I shall discuss the issue.2
Section 1461 explicitly provides that:
69
'Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and * * * (e)very written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained * * * (i)s declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.' (Emphasis supplied.)
70
Its genesis was in Section 16 of the Act of March 3, 1865, 13 Stat. 507, which when reported in the Senate had two parts:
71
'(N)o obscene book, pamphlet, picture, print, or other publication of a vulgar and indecent character, shall be admitted into the mails of the United States; but all such obscene publications deposited in or received at any post office, or discovered in the mails, shall be seized and destroyed, or otherwise disposed of, as the Postmaster General shall direct.'
72
'(A)ny person or persons who shall deposit or cause to be deposited in any post office or branch post office of the United States, for mailing or for delivery, an obscene book, pamphlet, picture, print, or other publication, knowing the same to be of a vulgar and indecent character, shall be deemed guilty of a misdemeanor * * *.' Cong. Globe, 38th Cong., 2d Sess. 661.
73
The sponsor of the bill advised the Senate that it had a twofold effect: 'The first part of it provides that if such (obscene) publications are in the mails the postmasters may take them out; and the latter part provides a penalty and a punishment for those who put them into the mails.' This explanation of the sponsor seems enough to undermine Brother BRENNAN's contention, but there is even more. Senator Johnson of Maryland apparently feared that obscene matter might be mailed in sealed envelopes and that 'the postmaster * * * will break the seal.' He moved to strike out the first part of the bill. Senator Sherman, however, objected, saying that 'the legislative prohibition against carrying such matter when it is known to the postmasters should be left. Probably the second clause allowing him to open mail matter should be struck out.' Ibid. (Emphasis supplied.) Senator Johnson acquiesced in this suggestion, and thus the bill as finally passed clearly permitted postmasters to refuse matters which were known by them to be obscene, so long as seals were not broken.3
74
The 1873 postal regulations reflected this power to exclude obscene matter from the mails,4 as have all succeeding ones, e.g., Postal Laws and Regulations (1893 ed.) § 335. In 1876 the Act was amended to substantially its present form. 19 Stat. 90. It not only declared certain material 'to be non-mailable matter' but added that such 'shall not be conveyed in the mails, nor delivered from any post-office nor by any letter-carrier.' A single comment by the bill's sponsor in the House reflects the understanding that this section, both before and after amendment, authorized exclusion:
75
'(T)he proposed bill in no wise changes the law as it now is except to provide a penalty for the circulation of obscene literature. By an oversight in drafting the original section the penalty applies only to the disposition of articles circulated or sold for the purpose of procuring abortion or preventing conception. Already this obscene class of matter spoken of in the other portion of the section is prohibited from passing through the mails, but no penalty is provided. * * * (I)t in no way changes the section as it now is. It makes nothing non-mailable that is not now non-mailable. It merely provides a penalty. * * *' 4 Cong.Rec. 695 (1876). (Emphasis supplied.)
76
Regulations establishing the procedure now used by the Department to determine questions of mailability were adopted in 1902. And in 1960 in a recodification the Congress included § 1461 within its collection of provisions which designate matter as nonmailable. 39 U.S.C. (Supp. II) § 4001(a), 39 U.S.C.A. § 4001(a).
77
In light of the language of the statutes, the legislative history, the subsequent recodification and the consistent history of administrative interpretation, it stretches my imagination to understand how one could conclude that Congress did not authorize the Post Office Department to exclude nonmailable material. As Justice Brandeis said in United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 418, 421, 41 S.Ct. 352, 356, 357, 65 L.Ed. 704. (1921) (dissenting opinion):
78
'The scope of the Postmaster General's alleged authority is confessedly the same whether the reason for the nonmailable quality of the matter inserted in a newspaper is that it violates the Espionage Act, or the copyright laws, or that it is part of a scheme to defraud, or concerns lotteries, or is indecent, or is in any other respect matter which Congress has declared shall not be admitted to the mails.
79
'As a matter of administration the Postmaster General, through his subordinates, rejects matter offered for mailing, or removes matter already in the mail, which in his judgment is unmailable. The existence in the Postmaster General of the power to do this cannot be doubted. The only question which can arise is whether in the individual case the power has been illegally exercised.'
II.
80
Let us now turn to the opinion of Brother HARLAN and first take up the question whether magazines which indisputably contain information on where obscene material may be obtained can be considered nonmailable apart from the sender's scienter. Giving regard to the wording of § 1461, the interests involved, and the nature of the sanction imposed, I fail to see how the sender's scienter is anywise material to a determination of nonmailability. Section 1461 very explicitly demands that no information 'be conveyed in the mails or delivered from any post office or by any letter carrier' if it in fact tells how obscene material can be obtained. This command running to those charged with the administration of the postal system is not conditioned by the words of the statute upon the sender's scienter or any remotely similar consideration. When it wants to inject a scienter requirement, the Congress well knows the words to use, as evidenced by the very next sentence in § 1461 establishing the criminal sanctions: 'Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section to be nonmailable * * * shall be fined not more than $5,000 or imprisoned not more than five years, or both * * *.' (Emphasis supplied.) Congress could not have made it more clear that the sender's knowledge of the material to be mailed did not determine its mailability but only his responsibility for mailing it. Nor is there any reason why Congress—in a civil action should have wanted it any other way. The sender's knowledge of the matter sought to be mailed is immaterial to the harm caused to the public by its dissemination. Finally, interpreting § 1461 to mean what it says would not give rise to the 'serious constitutional question' envisioned. This fear is premised entirely on Smith v. California, 361 u.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959), which was a criminal case. Surely the prerequisites to criminal responsibility are quite different from the tests for the use of the mails. The present determination of nonmailability of bulk packages of magazines to newsstands rains no sanctions or incriminations upon the publishers of these magazines nor does it confiscate or impound the magazines. For these reasons, I believe the only possible interpretation of § 1461 is that the sender's scienter is immaterial in determining the mailability of information on where obscene material can be obtained.
81
In passing, it might be noted that a requirement of scienter gives rise to some interesting problems. For instance: Is the sender's scienter permanently fixed at the time the material is first unsuccessfully offered for mailing, or is his scienter to be re-evaluated when the material is again offered for mailing? How are equitable principles such as 'clean hands' and 'he who seeks equity must do equity' squared in a proceeding to enjoin an administrative nonmailable order with an insistence on mailing material which has been shown to contain information leading to obscene material?
82
However, assuming that the knowledge of the sender is material in determining the mailability of these magazines, I submit the undisputed facts and findings compel as a matter of law the conclusion that the petitioners knew that materials published in their magazines informed their readers where obscene matter might be obtained. To say the least, these facts and findings are such that this Court ought not to set itself up as a fact-finder but should remand the case for a determination by those who have been entrusted initially with this responsibility.5
83
The content and direction of the magazines themselves are a tip-off as to the nature of the business of those who solicit through them. The magazines have no social, educational, or entertainment qualities but are designed solely as sex stimulants for homosexuals. They 'consist almost entirely of photographs of young men in nude or practically nude poses handled in such a manner as to focus attention on their genitals or buttocks or to emphasize these parts * * *.' Because of this content the magazines do 'not appeal to the ordinary male adult, * * * (who) would have no interest in them and would not buy them under ordinary circumstances and * * * (therefore) the readers of these publications consist almost entirely of male homosexuals and possibly a few adolescent males * * *.' The publishers freely admit that the magazines are published to appeal to the male homosexual group. The advertisements and photographer lists in such magazines were quite naturally 'designed so as to attract the male homosexual and to furnish him with names and addresses where nude male pictures in poses and conditions which would appeal to his prurient interest may be obtained.' Moreover, the advertisements themselves could leave no more doubt in the publishers' minds than in those of the solicited purchasers. To illustrate: some captioned a picture of a nude or scantily attired young man with the legend 'perfectly proportioned, handsome, male models, age 18—26.' Others featured a photograph of a nude male with the area around the privates obviously retouched so as to cover the genitals and part of the pubic hair and offered to furnish an 'original print of this photo.' Finally, each magazine specifically endorsed its listed photographers and requested its readers to support them by purchasing their products. In addition, three of the four magazines involved expressly represented that they were familiar with the work of the photographers listed in their publications.6
84
Turning to Womack, the president and directing force of all three corporate publishers, it is even clearer that we are not dealing here with a 'Jack and Jill' operation. Mr. Womack admitted that the magazines were planned for homosexuals, designed to appeal to and stimulate their erotic interests. To improve on this effect, he made suggestions to photographers as to the type of pictures he wanted. For example, he informed one of the studios listed in his publications that 'physique fans want their 'truck driver types' already cleaned up, showered, and ready for bed * * * (and) it is absolutely essential that the models have pretty faces and a personality not totally unrelated to sex appeal.' Womack had also suggested to the photographers that they exchange customer names with the hope of compiling a master list of homosexuals. He himself had been convicted of selling obscene photographs via the mails. Womack v. United States, 111 U.S.App.D.C. 8, 294 F.2d 204 (1961). More recently he has pleaded not guilty by reason of insanity to like charges. Washington Post, Feb. 1, 1962, p. D—3. Furthermore, he was warned in March, April, and July of 1959 that a number of his photographer advertisers were being prosecuted for mailing obscene matter and that he might be violating the law in transmitting through the mails their advertisements. However, he continued to disseminate such information through the mails, removing photographers from his lists only as they were convicted. Finally, through another controlled corporation not here involved, he filled orders for one of his advertisers sent in by the readers of his magazines. This material was found to be obscene and like all of the above facts and findings it is not contested here.
85
The corporate petitioners are chargeable with the knowledge of what they do, as well as the knowledge of their president and leader. How one can fail to see the obvious in this record is beyond my comprehension. In the words of Milton: 'O dark, dark, dark amid the blaze of noon.' For one to conclude that the above undisputed facts and findings are insufficient to show the required scienter, however stringently it may be defined, is in effect to repeal the advertising provisions of § 1461. To condition nonmailability on proof that the sender actually saw the material being sold by his advertisers is to portray the Congress as the 'mother' in the jingle, 'Mother, may I go out to swim? Yes, my darling daughter. Hang your clothes on a hickory limb and don't go near the water.'
86
For these reasons I would affirm the decision below.
1
Section 4161 of 18 U.S.C., 18 U.S.C.A. § 1461, provides in part:
'Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and—
'Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made * * *
'Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.
'Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, or knowingly takes any such thing from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than $5,000 or imprisoned not more than five years * * *.'
2
Because of our view of the case, we need not reach petitioners' third contention that, as applied in this instance, these Post Office procedures amounted to an unconstitutional 'prior restraint' on the publication of these magazines. The petitioner in this case has not questioned the Post Office Department's general authority under § 1461 to withhold these magazines from the mails if they are obscene. If that question, discussed in the opinion of MR. JUSTICE BRENNAN, 370 U.S., p. 495, 82 S.Ct., p. 1441, may still be deemed open in this Court, see United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 421—422, 41 S.Ct. 352, 65 L.Ed. 704 (Brandeis, J., dissenting); cf. Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586, we do not think it should be decided except upon full-dress argument and briefing, which have not been afforded us here.
3
The Judicial Officer found that 'the publisher has admitted that the magazines are knowingly published to appeal to the male homosexual group,' and that 'The publisher of the issues here involved has deliberately planned these publications so that they would appeal to the male homosexual audience * * *.'
4
The words of the statute are defined in Webster's New International Dictionary (unabridged, 2d ed., 1956) as follows:
obscene
'1. Offensive to taste; foul; loathsome; disgusting.
'2. a Offensive to chastity of mind or to modesty; expressing or presenting to the mind or view something that delicacy, purity, and decency forbid to be exposed; lewd; indecent; as, obscene language, dances, images.'
lewd
'4. Lustful; libidinous; lascivious; unchaste * * *.
'Syn.—Licentious, lecherous, dissolute, sensual; debauched, impure; obscene, salacious, pornographic.' lascivious
'1. Wanton; lewd; lustful.
'Syn.—Licentious, lecherous, libidinous, salacious.' indecent
'Not decent; specif.: a Unbecoming or unseemly; indecorous * * *
Syn.—Immodest, impure; gross, obscene.'
filthy
'1. Defiled with filth, whether material or moral; nasty; disgustingly dirty; polluting; foul; impure; obscene.
'Syn.—Squalid, unclean, gross, licentious.'
vile
'2. Morally contaminated; befouled by or as if by sin; morally base or impure; wicked; evil; sinful * * *.
'3. * * * unclean; filthy; repulsive; odious * * *.
'Syn.—Cheap (despicable), debased; depraved; corrupt, sordid, vicious; disgusting, loathsome, foul.' To the same effect see Webster's New International Dictionary (unabridged, 3d ed. 1961).
5
The first federal statute bearing on obscenity was the Tariff Act of 1842 which forbade the importation of 'indecent and obscene' pictorial matter and authorized confiscation. 5 Stat. 566 567. In 1865 the Congress passed the first Postal Act touching on the mailing of obscene matter, making it a crime to deposit an 'obscene book * * * or other publication of a vulgar and indecent character' in the mails. 13 Stat. 507.
The reenactment of the 1865 Act in the codification of the postal laws in 1872 did not change the several adjectives describing the objectionable matter. 17 Stat. 302. The Comstock Act, 17 Stat. 598, added the descriptive terms 'lewd' and 'lascivious' so that the proscription then included any 'obscene, lewd, or lascivious book * * * or other publication of an indecent character,' but this Court in Swearingen v. United States, 161 U.S. 446, 450, 16 S.Ct. 562, 563, 40 L.Ed. 765, held that the words 'obscene, lewd or lascivious' described a single offense. In 1909 the phrase 'and every filthy' as well as the word 'vile' were included in the provisions of the Comstock Act, 35 Stat. 1129. In 1955 the words were arranged in their present order. 69 Stat. 183. The Court of Appeals for the First Circuit noted that the words 'indecent, filthy or vile' are limited in their meaning by the preceding words 'obscene, lewd, lascivious,' and that all have reference to matters of sex. Flying Eagle Publications, Inc. v. United States, 273 F.2d 799, 803.
6
'Obscene libel' in English usage simply means obscene material, being derived from libellus, 'little book.' See St. John-Stevas, Obscenity and the Law, 24.
7
The passage referred to in Regina v. Hicklin was the following: 'I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall. Now, with regard to this work, it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character.' (1868) L.R. 3 Q.B., at 371.
The quotations from Regina v. Close and the Hicklin case are not intended to signify our approval of either the 'tendency to deprave' or 'sexual thoughts' test, but only to emphasize the two elements in the legal definition of 'obscene.'
8
This definition was approved by the Institute, as part of the 'Proposed Official Draft,' at its annual meeting in Washington, D.C., in May 1962.
9
It is also evident that the Judicial Officer of the Post Office Department and its counsel entertained the same mistaken view of Roth. The Report of the Judicial Officer did not address itself directly to the inherent indecency aspect of the magazines, except to the extent that such factor was tangentially involved in the findings already summarized (supra, 370 U.S., p. 481, 82 S.Ct., p. 1434). The same is true of the expert testimony adduced by government counsel at the administrative hearing.
10
The 1958 amendments to 18 U.S.C. § 1461, 72 Stat. 962, 18 U.S.C.A. § 1461, authorizing criminal prosecution at the place of delivery evince no purpose to make the standard less than national.
11
No issue was presented in Roth as to the obscenity of any of the materials involved. 354 U.S., at 481, n. 8, 77 S.Ct. at 1306.
12
See cases cited, 370 U.S., p. 490, 82 S.Ct., p. 1438.
13
'The magazines contained little textual material, with pictures of male models dominating almost every page * * *. The typical page consisted of a photograph, with the name of the model and the photographer and occasional references to the model's age (usually under 26), color of eyes, physical dimensions and occupation. The magazines contained little, either in text or pictures, that could be considered as relating in any way to weight lifting, muscle building or physical culture * * *.
'Many of the photographs were of nude male models, usually posed with some object in front of their genitals * * *; a number were of nude or partially nude males with emphasis on their bare buttocks * * *. Although none of the pictures directly exposed the model's genitals, some showed his pubic hair and others suggested what appeared to be a semi-erect penis * * *; others showed male models reclining with their legs (and sometimes their arms as well) spread wide apart * * *. Many of the pictures showed models wearing only loin cloths, 'V gowns,' or posing straps * * *; some showed the model apparently removing his clothing * * *. Two of the magazines had pictures of pairs of models posed together suggestively * * *.
'Each of the magazines contained photographs of models with swords or other long pointed objects * * *. The magazines also contained photographs of virtually nude models wearing only shoes, boots, helmets or leather jackets * * *. There were also pictures of models posed with chains or of one model beating another while a third held his face in his hands as if weeping * * *.'
14
Since Congress has sought to bar from the mails only material that is 'obscene, lewd, lascivious, indecent, filthy or vile' and it is within this statutory framework that we must judge the materials before us, we need not consider whether these magazines could constitutionally be reached under 'a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger.' Cantwell v. Connecticut, 310 U.S. 296, 311, 60 S.Ct. 900, 906, 84 L.Ed. 1213.
15
A number of such photographs were seized by the police, possessing search or arrest warrants, but knowledge that these advertisers were selling, or would sell, such photographs was never brought home to any of these petitioners.
16
Grecian Guild Pictorial carried a notice that it 'does not knowingly use the work of any studio which takes or sells nude, undraped front or side view photographs. The photographers listed above do not offer such photographs.' To be sure this magazine, as did the others, also carried a notation that the publisher was familiar with the work of the advertisers and urged the reader to support them; but this cannot well be taken as an admission of knowledge that the advertisers' works were obscene.
17
We do not think it would be appropriate at this late stage to remand the case for further proceedings on the issue of scienter. Although suggesting that '(it) is arguable' that scienter is not a necessary element under this part of the statute, the Government undertakes to defend this aspect of the judgment primarily on the premise that it was. The record shows that at the administrative hearing government counsel sought to fasten the petitioners with knowledge that the third-party advertisers were selling 'obscene' material. The Judicial Officer indeed rejected the petitioners' proposed findings that 'the publishers of each of the magazines in evidence * * * had no personal knowledge of the material sold by the advertisers * * *.' To be sure, the record does not disclose whether this was because 'knowledge' was deemed proved rather than that such element was not considered relevant. But on the cross motions for summary judgment, based upon the administrative record, the Government did not undertake to controvert petitioners' allegations that scienter was a necessary element under this part of the statute.
1
One, Inc., v. Olesen, 355 U.S. 371, 78 S.Ct. 364, 2 L.Ed.2d 352, and Sunshine Book Co. v. Summerfield, 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 352, were decided summarily without argument.
2
There would also be the question, if (a), (b) and (c) were answered affirmatively, of the validity of the particular procedures that the Post Office has employed.
3
See, e.g., Grove Press, Inc., v. Christenberry, D.C., 175 F.Supp. 488, 495, and 2 Cir., 276 F.2d 433, 435; Sunshine Book Co. v. Summerfield, 101 U.S.App.D.C. 358, 364—367, 249 F.2d 114, 120 123 (dissenting opinion), reversed, see supra, n. 1. And cf. Roth v. Goldman, 2 Cir., 172 F.2d 788, 794—795 (concurring opinion). Compare Stanard v. Olesen, 74 S.Ct. 768 (opinion of Mr. Justice Douglas), Olesen v. Stanard, 227 F.2d 785; Summerfield v. Sunshine Book Co., 95 U.S.App.D.C. 169, 221 F.2d 42.
4
The Government argues that petitioners 'complain generally of 'an unconstitutional prior restraint,' * * * without specifying (where) the asserted vice lies * * *.' Insofar as petitioners challenge the constitutionality of § 1461 if read to impose civil restraints, their suit would be within the requirements for convening a three-judge court under 28 U.S.C. § 2282, 28 U.S.C.A. § 2282, and therefore that claim is not here. But insofar as their attack is grounded upon a claim that § 1461 is not to be construed as granting censorial power to the Post Office, § 2282 does not apply.
5
My Brother HARLAN states that no question is raised as to the Post Office Department's general authority under 18 U.S.C. § 1461, 18 U.S.C.A. § 1461 to withhold obscene matter from the mails. The Government asserts only that at the administrative level the petitioners made no objection to the procedure. The Government does not suggest that the challenge to the Post Office's power to act at all had to be made before the administrative body. That challenge presents a jurisdictional question and is open to the petitioners even if not initially asserted in the agency proceeding. See United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 38, 73 S.Ct. 67, 69, 97 L.Ed. 54. And although perhaps not artfully, the petitioners did challenge the authority of the Post Office in the District Court. In their motion for summary judgment petitioners stated: '(P)laintiffs argue that the entire civil procedure followed by the Post Office based upon a criminal statute raises doubts of constitutionality. The fragile foundation on which the Post Office action rests must be kept in mind, both in dealing with the substantive obscenity question involved and in determining the proper scope of judicial review * * *. There is lacking here the kind of specific legislative direction to the administrative agency that in certain circumstances justifies judicial deference to administrative determinations.' The Court of Appeals did not discuss the issue, perhaps because it had held in Sunshine Book Co. v. Summerfield, supra, n. 3, that the questioned authority exists; the Government does not suggest that petitioners failed to make their argument there. And in this Court, petitioners continue their attack and the Government, without reservation, fully defends against it.
6
There is no need to consider here the history before 1865, which was highlighted by the rejection by Congress in 1836, largely on constitutional grounds, of President Jackson's request for legislation to suppress mail distribution of 'incendiary' abolitionist literature. See Rogers, The Postal Power of Congress (1916); Deutsch, Freedom of the Press and of the Mails, 36 Mich.L.Rev. 703 (1938). The 1865 Senate debates referred to such action as the kind for which power should be withheld. Cong. Globe, 38th Cong., 2d Sess. 661 (1865). The Post Office occasionally seized allegedly treasonable newspapers despite its lack of authority. See H.R.Rep. No. 51, 37th Cong., 3d Sess., pp. 3, 10 (1863).
The only noncriminal procedure authorized against obscene material before 1865 was a judicial proceeding for imported material's forfeiture. 5 Stat. 566; see United States v. Three Cases of Toys, 28 F.Cas. page 112, No. 16499; Anonymous, 1 Fed.Cas. page 1024, No. 470. For a comprehensive discussion of the history and practice of censorship in the Post Office and Bureau of Customs, see Paul and Schwartz, Federal Censorship: Obscenity in the Mail (1961), and Paul, The Post Office and Non-Mailability of Obscenity: An Historical Note, 8 U.C.L.A.L.Rev. 44 (1961).
7
Congress in 1865 was undoubtedly against any power in the Post Office to break seals (see Cong.Globe, 38th Cong., 2d Sess. 660—661), and 23 years later made this explicit as to first class mail. 25 Stat. 496—497. But even that was a prohibition 'out of abundant caution' and was not intended to imply any power to open mail of other classes. See 19 Cong.Rec. 8189 (1888).
8
25 Stat. 496, now 18 U.S.C. § 1463, 18 U.S.C.A. § 1463.
9
See United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 423, 429—430, 41 S.Ct. 352, 358, 360, 65 L.Ed. 704 (Brandeis, J., dissenting).
10
16 Op.Atty.Gen. 5, 6 (1878); 12 id., 538 (1868); and see 12 id., 399, 401 (1868).
11
There was also a provision that any material 'which may be seized or detained for violation of law shall be returned to the owner or sender of the same, or otherwise disposed of as the Postmaster-General may direct,' 17 Stat. 323, but that only states what may be done with material which may be seized or detained, and our question is whether obscene material—except in the narrow circumstances already described—may be seized or detained at all. Compare 370 U.S., pp. 511—512, 82 S.Ct., pp. 1449—1450.
12
But see Casserly's second statement, id., at 1436, which was a misunderstanding of the bill.
13
See Paul, supra, n. 6, at 51—57.
14
The bill's manager in the House said: '(T)he proposed bill in no wise changes the law as it now is except to provide a penalty for the circulation of obscene literature. By an oversight in drafting the original section the penalty applies only to the disposition of articles circulated or sold for the purpose of procuring abortion or preventing conception. Already this obscene class of matter spoken of in the other portion of the section is prohibited from passing through the mails, but no penalty is provided. * * * (I)t in no way changes the section as it now is. It makes nothing non-mailable that is not now non-mailable. It merely provides a penalty * * *.' 4 Cong.Rec. 695 (1876).
'Section (1461) is perfected by the bill so as to provide a complete penalty for the mailing of all kinds of matter therein prohibited to pass through the mails.' 4 Cong.Rec. 3656. The Senate did not discuss this change. See 4 Cong.Rec. 4261—4264.
15
Discussion in the Senate included the first reference to the problem of standards of obscenity—it was hardly such as to afford guidelines for administrative action:
'Mr. MORTON. Mr. President, in prohibiting the transmission of any matter through the mails there ought to be great care used and it ought to be particularly described and defined. All of that which is described in the beginning of the first section of this bill is eminently proper to prohibit from being transmitted through the mails; but there is a part of that section that I think is vague and susceptible of abuse. It prohibits the transmission through the mail of 'every article or thing intended or adapted for any indecent or immoral use.' What is an 'immoral use?' That question may be subject to very different opinions. The word 'obscene' is well defined; we can understand what that means; but when you prohibit everything that is for an immoral use, there would be wide differences of opinion on that point.
'Mr. CONKLING. The same words are in the law now.
'Mr. MORTON. That may be. I remember a time when certain newspapers and pamphlets were prohibited from going through the mails in certain States, because they were held to be of an immoral and seditious character—of 'an incendiary character,' as my friend from Ohio (Mr. SHERMAN) suggests. Public opinion has changed upon that point. But when we come to prohibit the transmission of any matter through the mails, we ought to understand pretty well what it is. There are many things that a portion of our people would consider immoral that other portions would consider entirely moral. Some people might consider a pack of card highly immoral; others might think they were entirely proper. Many other things might be enumerated.' 4 Cong.Rec. 4263.
16
'And all matter otherwise mailable by law upon the envelope or outside cover or wrapper of which, or postal card, upon which indecent, lewd, lascivious, obscene, libelous, scurrilous, or threatening delineations, epithets, terms, or language, or reflecting injuriously upon the character or conduct of another, may be written or printed, are hereby declared to be non-mailable matter, and shall not be conveyed in the mails, nor delivered from any post-office nor by any letter-carrier; and any person who shall knowingly deposit * * *.' 25 Stat. 188.
The proscription of scurrilous epithets had been part of § 1461 as amended in 1873, 17 Stat. 599, but it was removed in 1876 when the word's breadth and vagueness were objected to. Its reenactment was largely aimed at a 'blackmailing' process for the collection of debts. 19 Cong.Rec. 2206, 6734, 7662 (1888).
17
But see also id., at 6733—6734.
18
35 Stat. 1129.
19
See United States v. Limehouse, 285 U.S. 424, 52 S.Ct. 412, 76 L.Ed. 843.
20
(1) 18 U.S.C. § 1718, 18 U.S.C.A. § 1718, the criminal provision against mailing of matter libelous on its face, explicitly empowers the Postmaster General to make regulations governing its withdrawal from the mails; (2) 18 U.S.C. §§ 1341 and 1302, 18 U.S.C.A. §§ 1341, 1302, the criminal mail fraud and lottery provisions, have a matching section in the postal laws empowering the Postmaster General, upon evidence satisfactory to him, to mark mail 'fraudulent' or 'lottery mail' and to return it to its sender, 39 U.S.C. (Supp. II) § 4005, 39 U.S.C.A. § 4005; (3) 18 U.S.C. § 1342, 18 U.S.C.A. § 1342, making it a crime to conduct a fraudulent scheme by using a false name or address, also has a counterpart civil section empowering the Postmaster General, upon evidence satisfactory to him, to require proof of identity or to send such mail to the dead letter office, 39 U.S.C. (Supp. II) § 4003, 39 U.S.C.A. § 4003; (4) 18 U.S.C. §§ 1715 and 1716, 18 U.S.C.A. §§ 1715, 1716, making criminal the mailing of firearms and injurious articles, explicitly state that the Postmaster General may make regulations governing their transmission; (5) 18 U.S.C. § 1717, 18 U.S.C.A. § 1717, making criminal the mailing of matter advocating treason, explicitly authorized employees of the dead letter office to open such mail. See 74 Stat. 708. And see 7 U.S.C. § 150cc, 7 U.S.C.A. § 150cc and 33 Stat. 1270 (plant pests), 7 U.S.C.A. § 141 et seq. 38 Stat. 1113 (plants and plant products), 7 U.S.C.A. § 166, 22 U.S.C. § 618, 22 U.S.C.A. § 618 (foreign agents' propaganda advocating violent disorder in any other American republic); compare 7 U.S.C. § 1575, 7 U.S.C.A. § 1575 (false advertising of seed); 15 U.S.C. §§ 77q, 15 U.S.C.A. §§ 77q (fraudulent matter regarding securities), 80a—20 (solicitation of proxies), 80a—24 (sales literature regarding securities), 80b 3, 80b—5 and 80b—6 (investment advisers' materials); 50 U.S.C. § 789, 50 U.S.C.A. § 789 (publications of registered Communist organizations).
See American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 109, 23 S.Ct. 33, 39, 47 L.Ed. 90.
21
H.R.Rep.No.36, 86th Cong., 1st Sess. A44 (1959); 105 Cong.Rec. 3157 (1959) and 106 Cong.Rec. 15,667 (1960); and see supra, n. 11.
22
64 Stat. 451, now revised and codified as 39 U.S.C. (Supp. II) § 4006, 39 U.S.C.A. § 4006. See 74 Stat. 578, 655.
23
It appears that between 1950 and 1956, the Postmaster General asserted, and some courts agreed, that he already had the power. See Stanard v. Olesen, supra, n. 3, 74 S.Ct. at 771.
24
70 Stat. 699.
25
Hearings before House Subcommittee on Postal Operations of the Committee on Post Office and Civil Service on Obscene Matter Sent through the Mail, 86th Cong., 1st Sess. (1959).
26
74 Stat. 553. The codification of the postal laws, later in 1960, repealed 70 Stat. 699 (see 74 Stat. 708, 729) and not 74 Stat. 553, but the new § 4007 (74 Stat. 655) repeats the words of 70 Stat. 699. We need not now decide which is the governing provision.
The Senate Report in 1956 had said this:
'The committee recognizes that even in its present form the bill gives the Postmaster General extraordinary and summary powers to impose a substantial penalty by impounding a person's mail for up to 20 days in advance of any hearing or any review by the courts. Such power is directly contrary to the letter and spirit of normal due process, as exemplified by the Administrative Procedure Act, which requires a hearing before any penalty may be imposed. The Post Office Department has made its case for this legislation on the grounds that a temporary and summary procedure is required to deal with fly-by-night operators using the mails to defraud or to peddle pornography, who may go out of business—or change the name of their business or their business address- before normal legal procedures can be brought into operation. The Post Office Department has not recommended, nor does this committee approve, the use of the temporary impounding procedure under this bill as a substitute for the normal practice of an advance hearing or the bringing of an indictment for violation of the criminal code in all cases involving legitimate and well-established business operations. The committee would not approve the use of the extraordinary summary procedure under the bill against legitimate publishers of newspapers, magazines, or books in cases in which a Postmaster General might take objection to an article, an issue, or a volume.' S.Rep.No.2234, 84th Cong., 2d Sess. 2—3, U.S.Code Cong. and Adm.News 1956, p. 3598.
27
Section 305 of the Tariff Act of 1922, 42 Stat. 937, banned obscene and immoral matter, but subsection (c) provided:
'That any district judge * * * within the proper district * * * (may issue upon probable cause, conformably to the Constitution), a warrant directed to (a marshal or customs officer), directing him to * * * seize * * * any article or thing mentioned in (§ 305), and to make due and immediate return thereof, to the end that the same may be condemned and destroyed by proceedings, which shall be conducted in the same manner as other proceedings in the case of municipal seizure, and with the same right of appeal or writ of error.' And see supra, n. 6; supra, 370 U.S., pp. 505—506, 82 S.Ct., p. 1446.
28
These date from 1957. See 39 CFR §§ 14.4, 203 (1962).
29
See Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616; Riss & Co., v. United States, 341 U.S. 907, 71 S.Ct. 620, 95 L.Ed. 1345; Cates v. Haderlein, 342 U.S. 804, 72 S.Ct. 47, 96 L.Ed. 609; Walker v. Popenoe, 80 U.S.App.D.C. 129, 149 F.2d 511; Door v. Donaldson, 90 U.S.App.D.C. 188, 195 F.2d 764. And see, supra, n. 23.
30
See, e.g., Hearings before House Subcommittee No. 8 of the Committee on the Post Office and Post Roads on H.R. 5370, 74th Cong., 1st Sess. (1935); and Hearings, supra, n. 25; S.Rep.No.2179, 81st Cong., 2d Sess. (1950); S.Rep.No.113, 84th Cong., 1st Sess. (1955); Attorney General's Committee on Administrative Procedure, Post Office Department (1940); 19 Op.Atty.Gen. 667 (1890) (upholding exclusion from the mails of allegedly obscene portions of Tolstoi's 'Kreutzer Sonata'); 4 Op.Asst.Atty.Gen., Post-Office Dept. 741 (1908) (holding that § 1461 is a civil as well as a criminal provision, and that the Post Office 'in passing upon the mailability of matter under this statute * * * is not confined to the strict construction of the terms of the enactment which must be followed by a court in determining whether in a criminal case its provisions have been violated'). And see the sharp—and constitutionally colored opposition to and rejection of a 1915 proposal that would have authorized the Postmaster General to close the mails to material sent by a person he had determined to be engaged in publishing obscene matter. Hearings before House Committee on the Post Office and Post Roads on Exclusion of Certain Publications from the Mails, 63d Cong., 3d Sess. (1915); United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 424, 41 S.Ct. 352, 358, 65 L.Ed. 704 (Brandeis, J., dissenting).
31
H.R.Rep.No.2510, 82d Cong., 2d Sess. 5, 32.
1
39 U.S.C. (Supp. II) § 4058, 39 U.S.C.A. § 4058.
2
I agree with the conclusion in that opinion that petitioners' constitutional claim cannot be considered here.
3
The magazines here involved were second class matter and thus were unsealed and subject to inspection. 39 U.S.C. (Supp. II) § 4058, 39 U.S.C.A. § 4058.
4
'All books, pamphlets, circulars, prints, &c., of an obscene, vulgar, or indecent character * * * must be withdrawn from the mails by postmasters at either the office of mailing or the office of delivery.' Postal Laws and Regulations (1873 ed.) § 88. (Emphasis supplied.)
5
If the express rejection by the Judicial Officer of petitioners' proposed finding that they had 'no personal knowledge of the material sold by the advertisers' is taken as a finding to the contrary, then of course this is entitled to the deference accorded administrative findings, cf., e.g., National Labor Relations Board v. Walton Mfg. Co., 369 U.S. 404, 82 S.Ct. 853, 7 L.Ed.2d 829 (1962).
6
The magazines were offered in six bundles, apparently with copies of each of the four magazines intermingled among the bundles.
| 23
|
370 U.S. 724
82 S.Ct. 1574
8 L.Ed.2d 801
Louis HARTMANv.UNITED STATES.
No. 447, Misc.
Supreme Court of the United States
June 25, 1962
Lawrence Speiser, for petitioner.
Solicitor General Cox, Assistant Attorney General Yeagley and George B. Searls, for the United States.
On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis, the motion for leave to supplement the petition for certiorari and the petition for writ of certiorari are granted. The judgment is reversed. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038; Silber v. United States, 368 U.S. 925, 82 S.Ct. 364, 7 L.Ed.2d 189.
2
Mr. Justice CLARK and Mr. Justice HARLAN dissent for the reasons stated in their dissenting opinions in Russell v. United States, 369 U.S. 749, 779, 781, 82 S.Ct. 1038.
3
Mr. Justice FRANKFURTER and Mr. Justice WHITE took no part in the consideration or decision of this case.
| 23
|
370 U.S. 451
82 S.Ct. 1380
8 L.Ed.2d 620
STATE BOARD OF INSURANCE et al., Petitioners,v.TODD SHIPYARDS CORPORATION.
No. 144.
Argued March 21, 1962.
Decided June 25, 1962.
Bob E. Shannon and Fred B. Werkenthin, Austin, Tex., for petitioners.
Charles R. Vickery, Jr., Houston, Tex., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
When we held in United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440, that the modern business of insurance was 'interstate commerce,' we put it in a category which Congress could regulate and which, if our prior decisions controlled, could not in some respects be regulated by the States, even in absence of federal regulation. See Frankfurter, The Commerce Clause (1937); Rutledge, A Declaration of Legal Faith (1947).
2
Congress promptly passed the McCarran-Ferguson Act, 59 Stat. 33, 15 U.S.C. § 1011, 15 U.S.C.A. § 1011, which provided that the regulation and taxation of insurance should be left to the States, without restriction by reason of the Commerce Clause.1 Subsequently, by force of the McCarran-Ferguson Act, we upheld the continued taxation and regulation by the States of interstate insurance transactions. Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 66 S.Ct. 1142, 90 L.Ed. 1342.
3
Prior to the South-Eastern Underwriters decision, we had given broad scope to local regulation of the insurance business. Osborn v. Ozlin, 310 U.S. 53, 60 S.Ct. 758, 84 L.Ed. 1074; Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 63 S.Ct. 602, 87 L.Ed. 777. The Osborn case upheld a Virginia requirement that insurance companies authorized to do business in that State must write policies through resident agents. The Hoopeston case, while it involved the making of out-of-state insurance contracts, also involved servicing of policies in New York, the regulating State.
4
Here, unlike the Osborn and Hoopeston cases, the insurance companies carry on no activities within the State of Texas. Of course, the insured does business in Texas and the property insured is located there. It is earnestly argued that, unless the philosophy of the Osborn and Hoopeston decisions is to be restricted, the present Texas tax2 on premiums paid out-of-state on out-of-state contracts should be sustained. We are urged to follow the approach of the Osborn and Hoopeston decisions, look to the aspects of the insurance transactions taken as a whole, and decide that there aer sufficient contacts with Texas to justify this tax under the requirements of due process.
5
Were the Osborn and Hoopeston cases and the bare bones of the McCarran-Ferguson Act our only criteria for decision, we would have presented the question whether three prior decisions—Allgeyer v. Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832; St. Louis Cotton Compress Co. v. Arkansas, 260 U.S. 346, 43 S.Ct. 125, 67 L.Ed. 297; Connecticut General Life Ins. Co. v. Johnson, 303 U.S. 77, 58 S.Ct. 436, 82 L.Ed. 673—have continuing vitality. The first two were distinguished in the Osborn (310 U.S., at 66—67, 60 S.Ct. at 763) and Hoopeston (318 U.S., at 318—319, 63 S.Ct. at 605—606) cases. The Allgeyer case held that Louisiana by reason of the Due Process Clause of the Fourteenth Amendment could not make it a misdemeanor to effect insurance on Louisiana risks with an insurance company not licensed to do business in Louisiana, where the insured through use of the mails contracted in New York for the policy. The St. Louis Cotton Compress case held invalid under the Due Process Clause an Arkansas tax on the premiums paid for a policy on Arkansas risks, made with an out-of-state company having no office or agents in Arkansas. The Connecticut General Life Insurance case held invalid under the Due Process Clause a California tax on premiums paid in Connecticut by one insurance company to another for reinsurance of life insurance policies written in California on California residents, even though both insurance companies were authorized to do business in California. The Court stated:
6
'All that appellant did in effecting the reinsurance was done without the state and for its transaction no privilege or license by California was needful. The tax cannot be sustained either as laid on property, business done, or transactions carried on within the state, or as a tax on a privilege granted by the state.' 303 U.S., at 82, 58 S.Ct. at 439.
7
The Texas Court of Civil Appeals, 340 S.W.2d 339, and the Texas Supreme Court, feeling bound by these decisions, held the tax on premiums unconstitutional, 162 Tex. 8, 343 S.W.2d 241. We granted certiorari, 368 U.S. 810, 82 S.Ct. 40, 7 L.Ed.2d 20.
8
The insurance transactions involved in the present litigation take place entirely outside Texas. The insurance, which is principally insurance against loss or liability arising from damage to property, is negotiated and paid for outside Texas. The policies are issued outside Texas. All losses arising under the policies are adjusted and paid outside Texas. The insurers are not licensed to do business in Texas, have no office or place of business in Texas, do not solicit business in Texas, have no agents in Texas, and do not investigate risks or claims in Texas.
9
The insured is not a domiciliary of Texas but a New York corporation doing business in Texas. Losses under the policies are payable not to Texas residents but to the insured at its principal office in New York City. The only connection between Texas and the insurance transactions is the fact that the property covered by the insurance is physically located in Texas.
10
We need not decide de novo whether the results (and the reasons given) in the Allgeyer, St. Louis Cotton Compress, and Connecticut General Life Insurance decisions are sound and acceptable. For we have in the history of the McCarran-Ferguson Act an explicit. unequivocal statement that the Act was so designed as not to displace those three decisions. The House Report stated:
11
'It is not the intention of Congress in the enactment of this legislation to clothe the States with any power to regulate or tax the business of insurance beyond that which they had been held to possess prior to the decision of the United States Supreme Court in the Southeastern Underwriters Association case. Briefly, your committee is of the opinion that we should provide for the continued regulation and taxation of insurance by the States, subject always, however, to the limitations set out in the controlling decisions of the United States Supreme Court, as, for instance, in Allgeyer v. Louisiana (165 U.S. 578 (,17 S.Ct. 427, 41 L.Ed. 832)), St. Louis Cotton Compress Co. v. Arkansas (260 U.S. 346 (,43 S.Ct. 125, 67 L.Ed. 297)), and Connecticut General (Life) Insurance Co. v. Johnson (303 U.S. 77, (,58 S.Ct. 436, 82 L.Ed. 673)), which hold, inter alia, that a State does not have power to tax contracts of insurance or reinsurance entered into outside its jurisdiction by individuals or corporations resident or domiciled therein covering risks within the State or to regulate such transactions in any way.' H.R.Rep. No. 143, 79th Cong., 1st Sess., p. 3, U.S.Code Cong. Service 1945, p. 670.
12
Senator McCarran, after reading the foregoing part of the House Report during the Senate debate, stated, '* * * we give to the States no more powers than those they previously had, and we take none from time.' 91 Cong.Rec. 1442.
13
So, while Congress provided in 15 U.S.C. § 1012(a), 15 U.S.C.A. § 1012(a), that the insurance business 'shall be subject to the laws of the several States which relate to the regulation or taxation of such business,'3 it indicated without ambiguity that such state 'regulation or taxation' should be kept within the limits set by the Allgeyer, St. Louis Cotton Compress, and Connecticut General Life Insurance decisions.
14
The power of Congress to grant protection to interstate commerce against state regulation or taxation (Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767, 775—776, 67 S.Ct. 1026, 1031, 91 L.Ed. 1234; Rice v. Sante Fe Elevator Corp., 331 U.S. 218, 235—236, 67 S.Ct. 1146, 1154—1155, 91 L.Ed. 1447) or to withhold it (In re Rahrer, 140 U.S. 545, 560 et seq., 11 S.Ct. 865, 868, 35 L.Ed. 572; Prudential Ins. Co. v. Benjamin, supra) is so complete4 that its ideas of policy should prevail.
15
Congress, of course, does not have the final say as to what constitutes due process under the Fourteenth Amendment. And while Congress has authority by § 5 of that Amendment to enforce its provisions (Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492), the McCarran-Ferguson Act does not purport to do so. We have, of course, freedom to change our decisions on the constitutionality of laws. Smith v. Allwright, 321 U.S. 649, 665, 64 S.Ct. 757, 765, 88 L.Ed. 987. But the policy announced by Congress in the McCarran-Ferguson Act was one on which the industry had reason to rely since 1897, when the Allgeyer decision was announced; and we are advised by an amicus brief how severe the impact would be on small insurance companies should the old rule be changed. When, therefore, Congress has posited a regime of state regulation on the continuing validity of specific prior decisions (see Federal Trade Comm. v. Travelers Health Ass'n, 362 U.S. 293, 301—302, 80 S.Ct. 717, 721—722, 4 L.Ed.2d 724), we should be loath to change them.
16
We have accepted the status quo in comparable situations. After this Court held in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, that a State could not provide compensation to stevedores doing maritime work, Congress enacted the Longshoremen's Act. See S.Rep. No. 973, 69th Cong., 1st Sess., p. 16; H.R.Rep. No. 1767, 69th Cong., 2d Sess., p. 20. In Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246, we took note of the passage of laws which 'accepted the Jensen line of demarcation between state and federal jurisdiction' (id., at 256, 63 S.Ct. at 229), which line we also accepted in spite of the fact that the Jensen case had become in the eyes of some a derelict in the stream of the law.
17
In Toolson v. New York Yankees, Inc., 346 U.S. 356, 357, 74 S.Ct. 78, 98 L.Ed. 64, we refused to re-examine a prior decision holding baseball not to be covered by the antitrust laws, stating that '(t)he business has thus been left for thirty years to develop, on the understanding that it was not subject to existing antitrust legislation.' In that case Congress had remained silent, not changing the law. Here Congress tailored the new regulations for the insurance business with specific reference to our prior decisions. Since these earlier decisions are part of the arch on which the new structure rests, we rrefrain from disturbing them lest we change the design that Congress fashioned.
18
Affirmed.
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 BLACK, dissenting.
22
In holding that the McCarran-Ferguson Act withdrew from the States the power to tax the ownership and use of insurance policies on property located within their borders merely because those policies were made by representatives of the insurer and the insured in another State, I think the Court places an unwarranted construction upon that Act which may seriously impair the capacity of Texas and other States to provide and enforce effective regulation of the insurance business. The Texas statute held invalid was enacted by the State Legislature in 1957 in order to protect the State's comprehensive supervision of insurance companies and their policies from being unercut by the practice of insuring Texas property with insurance companies not authorized to do business in that State. Prior to 1957, the whole cost of the Texas program had been placed upon those insurance companies which had subjected themselves to Texas regulation and taxation by qualifying to do business in the State. The 1957 statute was passed for the express purpose of equalizing that burden by placing a tax upon the purchasers of unregulated insurance roughly equal to that imposed directly upon regulated companies. In this way the State tried to protect its qualified and regulated companies from unfair competition by companies which could sell insurance on Texas property cheaper because they did not have to pay their part of the cost of the Texas insurance regulation program. The Court's construction of the McCarran-Ferguson Act bars Texas from providing this sort of protection to regulated companies. This holding seems to me to threaten the whole foundation of the Texas regulatory program for it plainly encourages Texas residents to insure their property with unregulated companies and discourages out-of-state companies from qualifying to do business in and subjecting themselves to regulation and taxation by the State of Texas.
23
I cannot believe that an Act which was basically designed to leave the power to regulate and tax insurance companies to the States was intended to have any such effect. The McCarran-Ferguson Act 'declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States'—a declaration which is not qualified by any other language of the Act. Nothing in the legislative history which the Court relies upon persuades me that we should read this Act in a way which so seriously impairs the power of the States to discharge their responsibilities under the Act to provide a comprehensive, effective, well-integrated program for regulating insurance on property within their borders. I think the McCarran-Ferguson Act left Texas with adequate power to place a tax on the ownership and use of insurance policies covering the vast properties owned and operated by this respondent in Texas, and I therefore dissent.
1
15 U.S.C. § 1011, 15 U.S.C.A. § 1011, provides:
'Congress declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States.'
15 U.S.C. § 1012, 15 U.S.C.A. § 1012, provides, so far as relevant here:
'(a) The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.'
2
14 Vernon's Tex.Civ.Stat., 1952 (Cum.Supp.1961), Art. 21.38, § 2(e) provides:
'If any person, firm, association or corporation shall purchase from an insurer not licensed in the State of Texas a policy of insurance covering risks within this State in a manner other than through an insurance agent licensed as such under the laws of the State of Texas, such person, firm, association or corporation shall pay to the Board a tax of five per cent (5%) of the amount of the gross premiums paid by such insured for such insurance. Such tax shall be paid not later than thirty (30) days from the date on which such premium is paid to the unlicensed insurer.'
3
Supra, note 1.
4
As we stated in Prudential Ins. Co. v. Benjamin, supra, 328 U.S. at 434, 66 S.Ct. at 1157:
'The power of Congress over commerce exercised entirely without reference to coordinated action of the states is not restricted, except as the Constitution expressly provides, by any limitation which forbids it to discriminate against interstate commerce and in favor of local trade. Its plenary scope enables Congress not only to promote but also to prohibit interstate commerce, as it has done frequently and for a great variety of reasons. That power does not run down a one-way street or one of narrowly fixed dimensions. Congress may keep the way open, confine it broadly or closely, or close it entirely, subject only to the restrictions placed upon its authority by other constitutional provisions and the requirement that it shall not invade the domains of action reserved exclusively for the states.'
| 78
|
370 U.S. 530
82 S.Ct. 1459
8 L.Ed.2d 671
The GLIDDEN COMPANY, etc., Petitioner,v.Olga ZDANOK et al. Benny LURK, Petitioner, v. UNITED STATES.
Nos. 242 and 481.
Argued Feb. 21 and 26, 1962.
Decided June 25, 1962.
Chester Bordeau, New York City, for petitioner. Morris Shapiro, New York City, for respondents. Solicitor General Archibald Cox for United States, as intervener. Francis M. Shea, New York City, for United States Court of Claims, as amicus curiae, by special leave of Court.
Eugene Gressman, Washington, D.C., for petitioner. Solicitor General Archibald Cox for respondent. Roger Robb, Washington, D.C., for United States Court of Customs and Patent Appeals, as amicus curiae, by special leave of Court.
Mr. Justice HARLAN announced the judgment of the Court and an opinion joined by Mr. Justice BRENNAN and Mr. Justice STEWART.
1
In Ex parte Bakelite Corp., 279 U.S. 438, 49 S.Ct. 411, 73 L.Ed. 789, and Williams v. United States, 289 U.S. 553, 53 S.Ct. 751, 77 L.Ed. 1372, this Court held that the United States Court of Customs and Patent Appeals and the United States Court of Claims were neither confined in jurisdiction nor protected in independency by Article III of the Constitution, but that both had been created by virtue of other, substantive, powers possessed by Congress under Article I. The Congress has since pronounced its disagreement by providing as to each that 'such court is hereby declared to be a court established under article III of the Constitution of the United States.'1 The petitioners in these cases invite us to reaffirm the authority of our earlier decisions, and thus hold for naught these congressional pronouncements, at least as sought to be applied to judges appointed prior to their enactment.
2
No. 242 is a suit brought by individual employees in a New York state court to recover damages for breach of a collective bargaining agreement, and removed to the Federal District Court for the Southern District of New York by the defendant employer on the ground of diversity of citizenship. The employees' right to recover was sustained by a divided panel of the Court of Appeals, in an opinion by Judge J. Warren Madden, then an active judge of the Court of Claims sitting by designation of the Chief Justice of the United States under 28 U.S.C. § 293(a), 28 U.S.C.A. § 293(a).2 No. 481 is a criminal prosecution instituted in the United States District Court for the District of Columbia and resulting in a conviction for armed robbery. The trial was presided over by Judge Joseph R. Jackson, a retired judge of the Court of Customs and Patent Appeals sitting by similar designation.3 The petitioner's application for leave to appeal to the Court of Appeals in forma pauperis, respecting the validity of this designation and alleged trial error, was upheld by this Court last Term, 366 U.S. 712, 81 S.Ct. 1229, 6 L.Ed.2d 845; we are now asked to review the Court of Appeals' affirmance of his conviction. Because of the significance of the 'designation' issue for the federal judicial system, we granted certiorari in the two cases, 368 U.S. 814, 815, 82 S.Ct. 56, 110, 7 L.Ed.2d 22, 23, limited to the question whether the judgment in either was vitiated by the respective participation of the judges named.4
3
The claim advanced by the petitioners, that they were denied the protection of judges with tenure and compensation guaranteed by Article III, has nothing to do with the manner in which either of these judges conducted himself in these proceedings. No contention is made that either Judge Madden or Judge Jackson displayed a lack of appropriate judicial independence, or that either sought by his rulings to curry favor with Congress or the Executive. Both indeed enjoy statutory assurance of tenure and compensation,5 and were it not for the explicit provisions of Article III we should be quite unable to say that either judge's participation even colorably denied the petitioners independent judicial hearings.
4
Article III, § 1, however, is explicit and gives the petitioners a basis for complaint without requiring them to point to particular instances of mistreatment in the record. It provides:
5
'The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.'6
6
Apart from this provision, it is settled that neither the tenure nor salary of federal officers is constitutionally protected from impairment by Congress. Crenshaw v. United States, 134 U.S. 99, 107—108, 10 S.Ct. 431, 433, 434, 33 L.Ed. 825; cf. Butler v. Pennsylvania, 10 How. 402, 416—418, 13 L.Ed. 472. The statutory declaration, therefore, that the judges of these two courts should serve during good behavior and with undiminished salary, see note 5, supra, was ineffective to bind any subsequent Congress unless those judges were invested at appointment with the protections of Article III. United States v. Fisher, 109 U.S. 143, 145, 3 S.Ct. 154, 155, 27 L.Ed. 885; see McAllister v. United States, 141 U.S. 174, 186, 11 S.Ct. 949, 953, 35 L.Ed. 693. And the petitioners naturally point to the Bakelite and Williams cases, supra, as establishing that no such constitutional protection was in fact conferred.
7
The distinction referred to in those cases between 'constitutional' and 'legislative' courts has been productive of much confusion and controversy. Because of the highly theoretical nature of the problem in its present context,7 we would be well advised to decide these cases on narrower grounds if any are fairly available. But for reasons that follow, we find ourselves unable to do so.
I.
8
No challenge to the authority of the judges was filed in the course of the proceedings before them in either case. The Solicitor General, who submitted briefs and arguments for the United States, has seized upon this circumstance to suggest that the petitioners should be precluded by the so-called de facto doctrine from questioning the validity of these designations for the first time on appeal.
9
Whatever may be the rule when a judge's authority is challenged at the earliest practicable moment as it was in United States v. American-Foreign S.S. Corp., 363 U.S. 685, 80 S.Ct. 1336, 4 L.Ed.2d 1491, in other circumstances involving judicial authority this Court has described it as well settled 'that where there is an office to be filled and one, acting under color of authority, fills the office and discharges its duties, his actions are those of an officer de facto, and binding upon the public.' McDowell v. United States, 159 U.S. 596, 602, 16 S.Ct. 111, 113, 40 L.Ed. 271. The rule is founded upon an obviously sound policy of preventing litigants from abiding the outcome of a lawsuit and then overturning it if adverse upon a technicality of which they were previously aware. Although a United States Attorney may be permitted on behalf of the public to upset an order issued upon defective authority, Frad v. Kelly, 302 U.S. 312, 58 S.Ct. 188, 82 L.Ed. 282, a private litigant ordinarily may not. Ball v. United States, 140 U.S. 118, 128—129, 11 S.Ct. 761, 764, 765, 35 L.Ed. 377.
10
The rule does not obtain, of course, when the alleged defect of authority operates also as a limitation on this Court's appellate jurisdiction. Ayrshire Collieries Corp. v. United States, 331 U.S. 132, 67 S.Ct. 1168, 91 L.Ed. 1391 (three-judge court); United States v. Emholt, 105 U.S. 414, 26 L.Ed. 1077 (certificate of divided opinion). In other circumstances as well, when the statute claimed to restrict authority is not merely technical but embodies a strong policy concerning the proper administration of judicial business, this Court has treated the alleged defect as 'jurisdictional' and agreed to consider it on direct review even though not raised at the earliest practicable opportunity. E.g., American Construction Co. v. Jacksonville, T. & K.W.R. Co., 148 U.S. 372, 387—388, 13 S.Ct. 758, 764, 765, 37 L.Ed. 486.
11
A fortiori is this so when the challenge is based upon nonfrivolous constitutional grounds. In McDowell v. United States itself, supra, at 598—599, 16 S.Ct. at 111, 112, the Court, while holding that any defect in statutory authorization for a particular intracircuit assignment was immunized from examination by the de facto doctrine, specifically passed upon and upheld the constitutional authority of Congress to provide for such an assignment. And in Lamar v. United States, 241 U.S. 103, 117—118, 36 S.Ct. 535, 539, 540, 60 L.Ed. 912, the claim that an intercircuit assignment violated the criminal venue restrictions of the Sixth Amendment and usurped the presidential appointing power under Art. II, § 2, was heard here and determined upon its merits, despite the fact that it had not been raised in the District Court or in the Court of Appeals or even in this Court until the filing of a supplemental brief upon a second request for review.
12
The alleged defect of authority here relates to basic constitutional protections designed in part for the benefit of litigants. See O'Donoghue v. United States, 289 U.S. 516, 532—534, 53 S.Ct. 740, 743, 744, 77 L.Ed. 1356. It should be examinable at least on direct review, where its consideration encounters none of the objections associated with the principle of res judicata, that there be an end to litigation. At the most is weighed in opposition the disruption to sound appellate process entailed by entertaining objections not raised below, and that is plainly insufficient to overcome the strong interest of the federal judiciary in maintaining the constitutional plan of separation of powers. So this Court has concluded on an analogous balance struck to protect against intruding federal jurisdiction into the area constitutionally reserved to the States: Whether diversity of citizenship exists may be questioned on direct review for the first time in this Court. Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462; City of Gainesville v. Brown-Crummer Investment Co., 277 U.S. 54, 59, 48 S.Ct. 454, 455, 72 L.Ed. 781. We hold that it is similarly open to these petitioners to challenge the constitutional authority of the judges below.
II.
13
The Court of Appeals for the District of Columbia found it unnecessary to reach the question whether Judge Jackson enjoyed constitutional security of tenure and compensation. It held that even if he did not, Congress might authorize his assignment to courts in the District of Columbia, by virtue of its power 'To exercise exclusive Legislation in all Cases whatsoever' over the District. Art. I, § 8, cl. 17. The Solicitor General, in support of that ruling, argues here that because the criminal charge against petitioner Lurk was violation of a local statute, D.C. Code, 1961, § 22—2901, rather than of one national in application, its trial did not require the assignment of an Article III judge.
14
The question thus raised is itself of constitutional dimension, and one which we need not reach if an Article III judge was in fact assigned. In the companion case, No. 242, the necessity for such a judge is uncontested. The Court of Appeals for the Second Circuit sat to determine a question of state contract law presented for its decision solely by reason of the diverse citizenship of the litigants.8 Authority for the Federal Government to decide questions of state law exists only by virtue of the Diversity Clause in Article III. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.,Ct. 817, 82 L.Ed. 1188; see Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 284, 15 L.Ed. 372. For this reason, the question whether Judge Madden enjoyed constitutional independence is inescapably presented. Since decision of that question involves considerations bearing directly upon the constitutional status of Judge Jackson, we deem it appropriate to dispose of both cases of the same grounds, without at present intimating any view as to the correctness of the holding below by the Court of Appeals for the District of Columbia.
III.
15
The next question is whether the character of the judges who sat in these cases may be determined without reference to the character of the courts to which they were originally appointed. If it were plain that these judges were invested upon confirmation with Article III tenure and compensation, it would be unnecessary for present purposes to consider the constitutional status of the Court of Claims and the Court of Customs and Patent Appeals.
16
No such course, however, appears to be open. The statutes under which Judge Madden and Judge Jackson were appointed speak of service only on those courts. 28 U.S.C. §§ 171, 211, 28 U.S.C.A. §§ 171, 211. They were not, as were the judges selected for the late Commerce Court, appointed as 'additional circuit judges,' Act of June 18, 1910, c. 309, 36 Stat. 539, 540, whose tenure might be constitutionally secured regardless of the fortunes of their courts. See 50 Cong.Rec. 5409—5418 (1913); Donegan v. Dyson, 269 U.S. 49, 46 S.Ct. 55, 70 L.Ed. 159; Frankfurter and Landis, The Business of the Supreme Court (1927), 168—173. It is true that at the time of Judge Jackson's appointment there was in force a statute authorizing assignment of Court of Customs and Patent Appeals judges to serve on the courts of the District of Columbia. Act of September 14, 1922, c. 306, § 5, 42 Stat. 837, 839. At that time, however, before the O'Donoghue decision, there seems to have been a consensus that the courts of the District were not confined or protected by Article III; as late as 1930, this Court regarded it as 'recognized that the courts of the District of Columbia are not created under the judiciary article of the Constitution but are legislative courts * * *.' Federal Radio Comm'n v. General Electric Co., 281 U.S. 464, 468, 50 S.Ct. 389, 390, 74 L.Ed. 969; and see Katz, Federal Legislative Courts, 43 Harv.L.Rev. 894, 899—903 (1930). The 1922 Act cannot therefore be viewed ex proprio vigore as conferring Article III status on judges subsequently appointed to the Court of Customs and Patent Appeals.9
17
A more novel suggestion is that the assignment statute itself, 28 U.S.C. §§ 291—296, 28 U.S.C.A. §§ 291—296, authorized the Chief Justice to appoint inferior Article III judges in the course of designating them for service on Article III courts.10 See Shartel, Federal Judges—Appointment, Supervision, and Removal Some Possibilities under the Constitution, 28 Mich.L.Rev. 485 (1930); cf. Ex parte Siebold, 100 U.S. 371, 397—398, 25 L.Ed. 717; Rice v. Ames, 180 U.S. 371, 378, 21 S.Ct. 406, 409, 45 L.Ed. 577. But we need not consider the constitutional questions involved in this suggestion, for the statute does not readily lend itself to such a construction. If nothing else, the authority given the Chief Justice in 28 U.S.C. § 295, 28 U.S.C.A. § 295, to revoke assignments previously made is wholly inconsistent with a reading of the statute as empowering him to appoint inferior Article III judges. Judges assigned by the Chief Justice who are not previously endowed with constitutional security of tenure and compensation thus can gain nothing by the designation.11
18
It is significant that Congress did not enact the present broad assignment statute until after it had declared the Court of Claims and the Court of Customs and Patent Appeals to be constitutional courts. Act of August 25, 1958, 72 Stat. 848. A major purpose of these declarations was to eliminate uncertainty whether regular Article III judges might be assigned to assist in the business of those courts when disability or disqualification made it difficult for them to obtain a quorum.12 Those doubts, suggested by dicta in Ex parte Bakelite Corp., 279 U.S. 438, 460, 49 S.Ct. 411, 416, 73 L.Ed. 789, would be expanded rather than allayed were we to hold that the judges of the Court of Claims and the Court of Customs and Patent Appeals enjoy the protections of Article III while leaving at large the status of those courts. For these various reasons, the constitutional quality of tenure and compensation extended Judges Madden and Jackson at the time of their confirmation must be deemed to have depended upon the constitutional status of the courts to which they were primarily appointed.
IV.
19
In determining the constitutional character of the Court of Claims and the Court of Customs and Patent Appeals, as we are thus led to do, we may not disregard Congress' declaration that they were created under Article III. Of course, Congress may not by fiat overturn the constitutional decisions of this Court, but the legislative history of the 1953 and 1958 declarations makes plain that it was far from attempting any such thing. Typical is a statement in the 1958 House Report that the purpose of the legislation was to 'declare which of the powers Congress was intending to exercise when the court was created.' H.R.Rep.No.2349, 85th Cong., 2d Sess. 3 (1958); accord, H.R.Rep.No.695, 83d Cong., 1st Sess. 3, 5, 7 (1953); and see S.Rep.No.275, 83d Cong., 1st Sess. 2 (1953), substituted for S.Rep.No.261, 83d Cong., 1st Sess. 2 (1953); 99 Cong.Rec.8943, 8944 (1953) (remarks of Senator Gore).
20
'Subsequent legislation which declares the intent of an earlier law,' this Court has noted, 'is not, of course, conclusive in determining what the previous Congress meant. But the later law is entitled to weight when it comes to the problem of construction.' Federal Housing Administration v. Darlington, Inc., 358 U.S. 84, 90, 79 S.Ct. 141, 145, 3 L.Ed.2d 132; accord, New York, P. & N.R. Co. v. Peninsula Exchange, 240 U.S. 34, 39, 36 S.Ct. 230, 232, 60 L.Ed. 511. Especially is this so when the Congress has been stimulated by decisions of this Court to investigate the historical materials involved and has drawn from them a contrary conclusion. United States v. Hutcheson, 312 U.S. 219, 235—237, 61 S.Ct. 463, 467, 468, 85 L.Ed. 788. As examination of the House and Senate Reports makes evident, that is what occurred here. E.g., S.Rep.No.2309, 85th Cong., 2d Sess. 2—3 (1958); H.R.Rep.No. 695, 83d Cong., 1st Sess. 3—5 (1953).
21
At the time when Bakelite and Williams were decided, the Court did not have the benefit of this congressional understanding. The Williams case, for example, arose under the Legislative Appropriation Act of June 30, 1932, c. 314, § 107(a)(5), 47 Stat. 382, 402, which reduced the salary of all judges 'except judges whose compensation may not, under the Constitution, be diminished during their continuance in office.' Mr. Justice Sutherland, who wrote the Court's opinions in both Williams and O'Donoghue, was plainly disadvantaged by the absence of congressional intimation as to which judges of which courts were to be deemed exempted. See O'Donoghue v. United States, 289 U.S. 516, 529, 53 S.Ct.740, 742.
22
In the Bakelite case, to be sure, Mr. Justice Van Devanter said of an argument drawn from tenuous evidence of congressional understanding that it 'mistakenly assumes that whether a court is of one class or the other depends on the intention of Congress, whereas the true test lies in the power under which the court was created and in the jurisdiction conferred.' 279 U.S., at 459, 49 S.Ct. at 416. Yet he would hardly have denied that explicit evidence of legislative intendment concerning the factors he thought controlling may be relevant and indeed highly persuasive. In any event, the Bakelite dictum did not embarrass the Court in deciding O'Donoghue, where it looked searchingly at 'congressional practice' to determine what classification that body 'recognizes.' 289 U.S., at 548—550, 53 S.Ct. at 749, 750. We think the forthright statement of understanding embraced in the 1953 and 1958 declarations may be taken as similarly persuasive evidence for the problem now before us.
23
To give due weight to these congressional declarations is not of course to compromise the authority or responsibility of this Court as the ultimate expositor of the Constitution. The Bakelite and Williams decisions have long been considered of questionable soundness. See, e.g., Brown, The Rent in Our Judicial Armor, 10 G.W.L.Rev. 127 (1941); Hart and Wechsler, The Federal Courts and the Federal System (1953), 348 351; 1 Moore, Federal Practice (2d ed. 1961), 71 n. 21. They stand uneasily next to O'Donoghue, much of whose reasoning in sustaining the Article III status of the District of Columbia superior courts seems applicable to the Court of Claims and the Court of Customs and Patent Appeals. In Pope v. United States, 323 U.S. 1, 13—14, 65 S.Ct. 16, 23, 89 L.Ed. 3, where the Solicitor General argued at length against the continued vitality of Bakelite and Williams, their authority was regarded as an open question.
24
Furthermore, apart from this Court's considered practice not to apply stare decisis as rigidly in constitutional as in nonconstitutional cases, e.g., United States v. South Buffalo R. Co., 333 U.S. 771, 774—775, 68 S.Ct. 868, 870, 92 L.Ed. 1077; see Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405—408, 52 S.Ct. 443, 446—448, 76 L.Ed. 815 and n. 1—3 (Brandeis, J., dissenting), there is the fact that Congress has acted on its understanding and has provided for assignment of judges who have made decisions that are now said to be impeachable. In these circumstances, the practical consideration underlying the doctrine of stare decisis protection of generated expectations—actually militates in favor of reexamining the decisions. We are well-advised, therefore, to regard the questions decided in those cases as entirely open to reconsideration.
V.
25
The Constitution nowhere makes reference to 'legislative courts.' The power given Congress in Art. I, § 8, cl. 9, 'To constitute Tribunals inferior to the Supreme Court,' plainly relates to the 'inferior Courts' provided for in Art. III, § 1; it has never been relied on for establishment of any other tribunals.
26
The concept of a legislative court derives from the opinion of Chief Justice Marshall in American Insurance Co. v. Canter, 1 Pet. 511, 7 L.Ed. 242, dealing with courts established in a territory. A cargo of cotton salvaged from a wreck off the coast of Florida had been purchased by Canter at a judicial sale ordered by a court at Key West invested by the territorial legislature with jurisdiction over cases of salvage. The insurers, to whom the property in the cargo had been abandoned by the owners, brought a libel for restitution, claiming in part that the prior decree was void because not rendered in a court created by Congress, as required for the exercise of admiralty jurisdiction under Article III. Chief Justice Marshall for the Court swept this objection aside by noting that the Superior Courts of Florida, which had been created by Congress, were staffed with judges appointed for only four years, and concluded that Article III did not apply in the territories:
27
'These Courts, then, are not constitutional Courts, in which the judicial power conferred by the Constitution on the general government, can be deposited. They are incapable of receiving it. They are legislative Courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States.' 1 Pet., at 546.
28
By these arresting observations the Chief Justice certainly did not mean to imply that the case heard by the Key West court was not one of admiralty jurisdiction otherwise properly justiciable in a Federal District Court sitting in one of the States. Elsewhere in the opinion he distinctly referred to the provisions of Article III to show that it was such a case. 1 Pet., at 545. All the Chief Justice meant, and what the case has ever after been taken to establish, is that in the territories cases and controversies falling within the enumeration of Article III may be heard and decided in courts constituted without regard to the limitations of that article;13 courts, that is, having judges of limited tenure and entertaining business beyond the range of conventional cases and controversies.
29
The reasons for this are not difficult to appreciate so long as the character of the early territories and some of the practical problems arising from their administration are kept in mind. The entire governmental responsibility in a territory where there was no state government to assume the burden of local regulation devolved upon the National Government. This meant that courts had to be established and staffed with sufficient judges to handle the general jurisdiction that elsewhere would have been exercised in large part by the courts of a State.14 But when the territories began entering into statehood, as they soon did, the authority of the territorial courts over matters of state concern ceased; and in a time when the size of the federal judiciary was still relatively small, that left the National Government with a significant number of territorial judges on its hands and no place to put them. When Florida was admitted as a State, for example, Congress replaced three territorial courts of general jurisdiction comprising five judges with one Federal District Court and one judge.15
30
At the same time as the absence of a federal structure in the territories produced problems not foreseen by the Framers of Article III, the realities of territorial government typically made it less urgent that judges there enjoy the independence from Congress and the President envisioned by that article. For the territories were not ruled immediately from Washington; in a day of poor roads and slow mails, it was unthinkable that they should be. Rather, Congress left municipal law to be developed largely by the territorial legislatures, within the framework of organic acts and subject to a retained power of veto.16 The scope of self-government exercised under these delegations was nearly as broad as that enjoyed by the States, and the freedom of the territories to dispense with protections deemed inherent in a separation of governmental powers was as fully recognized.17
31
Against this historical background, it is hardly surprising that Chief Justice Marshall decided as he did. It would have been doctrinaire in the extreme to deny the right of Congress to invest judges of its creation with authority to dispose of the judicial business of the territories. It would have been at least as dogmatic, having recognized the right, to fasten on those judges a guarantee of tenure that Congress could not put to use and that the exigencies of the territories did not require. Marshall chose neither course; conscious as ever of his responsibility to see the Constitution work, he recognized a greater flexibility in Congress to deal with problems arising outside the normal context of a federal system.
32
The same confluence of practical considerations that dictated the result in Canter has governed the decision in later cases sanctioning the creation of other courts with judges of limited tenure. In United States v. Coe, 155 U.S. 76, 85—86, 15 S.Ct. 16, 19, 39 L.Ed. 76, for example, the Court sustained the authority of the Court of Private Land Claims to adjudicate claims under treaties to land in the territories, but left it expressly open whether such a course might be followed within the States. The Choctaw and Chickasaw Citizenship Court was similarly created to determine questions of tribal membership relevant to property claims within Indian territory under the exclusive control of the National Government. See Stephens v. Cherokee Nation, 174 U.S. 445, 19 S.Ct. 722, 43 L.Ed. 1041; Ex parte Joins, 191 U.S. 93, 24 S.Ct. 27, 48 L.Ed. 110; Wallace v. Adams, 204 U.S. 415, 27 S.Ct. 363, 51 L.Ed. 547. Upon like considerations, Article III has been viewed as inapplicable to courts created in unincorporated territories outside the mainland, Downes v. Bidwell, 182 U.S. 244, 266—267, 21 S.Ct. 770, 778, 779, 45 L.Ed. 1088; Balzac v. Porto Rico, 258 U.S. 298, 312—313, 42 S.Ct. 343, 348, 66 L.Ed. 627; cf. Dorr v. United States, 195 U.S. 138, 145, 149, 24 S.Ct. 808, 811, 813, 49 L.Ed. 128, and to the consular courts established by concessions from foreign countries, In re Ross, 140 U.S. 453, 464 465, 480, 11 S.Ct. 897, 900, 905, 35 L.Ed. 581.18
33
The touchstone of decision in all these cases has been the need to exercise the jurisdiction then and there and for a transitory period. Whether constitutional limitations on the exercise of judicial power have been held inapplicable has depended on the particular local setting, the practical necessities, and the possible alternatives. When the peculiar reasons justifying investiture of judges with limited tenure have not been present, the Canter holding has not been deemed controlling. O'Donoghue v. United States, 289 U.S. 516, 536 539, 53 S.Ct. 740, 745, 746.
34
Since the conditions obtaining in one territory have been assumed to exist in each, this Court has in the past entertained a presumption that even those territorial judges who have been extended statutory assurances of life tenure and undiminished compensation have been so favored as a matter of legislative grace and not of constitutional compulsion. McAllister v. United States, 141 U.S. 174, 186, 11 S.Ct. 949, 953, 35 L.Ed. 693.19 By a parity of reasoning, however, the presumption should be reversed when Congress creates courts the continuing exercise of whose jurisdiction is unembarrassed by such practical difficulties. See Mookini v. United States, 303 U.S. 201, 205, 58 S.Ct. 543, 545, 82 L.Ed. 748. As the Bakelite and Williams opinions recognize, the Court of Claims and the Court of Customs and Patent Appeals were created to carry into effect powers enjoyed by the National Government over subject matter—roughly, payment of debts and collection of customs revenue—and not over localities. What those opinions fail to deal with is whether that distinction deprives American Insurance Co. v. Canter of controlling force.
35
The Bakelite opinion did not inquire whether there might be such a distinction. After sketching the history of the territorial and consular courts, it continued at once:
36
'Legislative courts also may be created as special tribunals to examine and determine various matters, arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it.' 279 U.S., at 451, 49 S.Ct. at 413.
37
Since in the Court's view the jurisdiction conferred on both the Court of Claims and the Court of Customs and Patent Appeals included 'nothing which inherently or necessarily requires judicial determination,'20 both could have been and were created as legislative courts.
38
We need not pause to assess the Court's characterization of the jurisdiction conferred on those courts, beyond indicating certain reservations about its accuracy.21 Nor need we now explore the extent to which Congress may commit the execution of even 'inherently' judicial business to tribunals other than Article III courts. We may and do assume, for present purposes, that none of the jurisdiction vested in our two courts is of that sort, so that all of it might be committed for final determination to non-Article III tribunals, be they denominated legislative courts or administrative agencies.
39
But because Congress may employ such tribunals assuredly does not mean that it must. This is the crucial non sequitur of the Bakelite and Williams opinions. Each assumed that because Congress might have assigned specified jurisdiction to an administrative agency, it must be deemed to have done so even though it assigned that jurisdiction to a tribunal having every appearance of a court and composed of judges enjoying statutory assurances of life tenure and undiminished compensation. In so doing, each appears to have misunderstood the trust of the celebrated observation by Mr. Justice Curtis, that
40
'* * * there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.' Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 284, 15 L.Ed. 372.
41
This passage, cited in both the Bakelite and Williams opinions,22 plainly did not mean that the matters referred to could not be entrusted to Article III courts. Quite the contrary, the explicit predicate to Justice Curtis' argument was that such courts could exercise judicial power over such cases. For the very statute whose authorization of summary distress proceedings was sustained in the Murray case, also authorized the distrainee to bring suit to arrest the levy against the United States in a Federal District Court. And as to this, the author of the opinion stated, just before his more trenchant remark quoted above:
42
'The United States consents that this fact of indebtedness may be drawn in question by a suit against them. Though they might have withheld their consent, we think that, by granting it, nothing which may not be a subject of judicial cognizance is brought before the court.'23
43
Thus Murray's Lessee, far from furnishing authority against the proposition that the Court of Claims is a constitutional court, actually supports it.
44
To deny that Congress may create tribunals under Article III for the sole purpose of adjudicating matters that it might have reserved for legislative or executive decision would be to deprive it of the very choice that Mr. Justice Curtis insisted it enjoys. Of course possession of the choice, assuming it is coextensive with the range of matters confided to the courts,24 subjects those courts to the continuous possibility that their entire jurisdiction may be withdrawn. See Williams v. United States, 289 U.S. 553, 580—581, 53 S.Ct. 751, 760, 77 L.Ed. 1372. But the threat thus facing their independence is not in kind or effect different from that sustained by all inferior federal courts. The great constitutional compromise that resulted in agreement upon Art. III, § 1, authorized but did not obligate Congress to create inferior federal courts. 1 Farrand, The Records of the Federal Convention (1911), 118, 124—125; The Federalist, No. 81 (Wright ed. 1961), at 509 (Hamilton). Once created, they passed almost a century without exercising any very significant jurisdiction. Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv.L.Rev. 49, 65—70 (1923); Frankfurter, Distribution of Judicial Power Between United States and State Courts, 13 Cornell L.Q. 499 (1928). Throughout this period and beyond it up to today, they remained constantly subject to jurisdictional curtailment. Turner v. Bank of North America, 4 Dall. 8, 10 note, 1 L.Ed. 718 (Chase, J.); Cary v. Curtis, 3 How. 236, 245, 11 L.Ed. 576; Sheldon v. Sill, 8 How. 441, 449, 12 L.Ed. 1147; Kline v. Burke Construction Co., 260 U.S. 226, 233-234, 43 S.Ct. 79, 82, 67 L.Ed. 226. Even if it should be conceded that the Court of Claims or the Court of Customs and Patent Appeals is any more likely to be supplanted, we do not think the factor of constitutional significance.25
45
What has been said should suffice to demonstrate that whether a tribunal is to be recognized as one created under Article III depends basically upon whether its establishing legislation complies with the limitations of that article; whether, in other words, its business is the federal business there specified and its judges and judgments are allowed the independence there expressly or impliedly made requisite. To ascertain whether the courts now under inquiry can meet those tests, we must turn to examine their history, the development of their functions, and their present characteristics.
VI.
46
A. Court of Claims.—The Court of Claims was created by the Act of February 24, 1855, c. 122, 10 Stat. 612, primarily to relieve the pressure on Congress caused by the volume of private bills. As an innovation the court was at first regarded as an experiment, and some of its creators were reluctant to give it all the attributes of a court by making its judgments final; instead it was authorized to hear claims and report its findings of fact and opinions to Congress, together with drafts of bills designed to carry its recommendations into effect. § 7, 10 Stat. 613; see Cong.Globe, 33d Cong., 2d Sess. 70—72 (1854) (remarks of Senators Brodhead and Hunter). From the outset, however, a majority of the court's proponents insisted that its judges be given life tenure as a means of assuring independence of judgment, and their proposal won acceptance in the Act. § 1, 10 Stat. 612; see Cong. Globe, 33d Cong., 2d Sess. 71, 108—109 (Senator Hunter); 72 (Senator Clayton); 106 (Senator Brodhead); 110 (Senator Pratt); 114, 902 (the votes). Indeed there are substantial indications in the debates that Congress thought it was establishing a court under Article III. Cong.Globe, 33d Cong., 2d Sess. 108—109 (Senator Hunter); 110—111 (Senator Pratt); 111 (Senator Clayton); 113 (Senators Stuart and Douglas).
47
By the end of 1861, however, it was apparent that the limited powres conferred on the court were insufficient to relieve Congress form the laborious necessity of examining the merits of private bills. In his State of the Union message that year, President Lincoln recommended that the legislative design to provide for the independent adjudication of claims against the United States be brought to fruition by making the judgments of the Court of Claims final. The pertinent text of his address is as follows, Cong.Globe, 37th Cong., 2d Sess., Appendix, p. 2:
48
'It is as much the duty of Government to render prompt justice against itself, in favor of citizens, as it is to administer the same between private individuals. The investigation and adjudication of claims, in their nature belong to the judicial department * * *. It was intended by the organization of the Court of Claims mainly to remove this branch of business from the Halls of Congress; but while the court has proved to be an effective and valuable means of investigation, it in great degree fails to effect the object of its creation, for want of power to make its judgments final.'
49
By the Act of March 3, 1863, c. 92, § 5, 12 Stat. 765, 766, Congress adopted the President's recommendation and made the court's judgments final, with appeal to the Supreme Court provided in certain cases. The significance of this nearly contemporaneous enactment for the light it sheds on the aims of the 1855 Congress is apparent.
50
There was one further impediment. Section 14 of the 1863 Act, 12 Stat. 768, provided that 'no money shall be paid out of the treasury for any claim passed upon by the court of claims till after an appropriation therefor shall be estimated for by the Secretary of the Treasury.' In Gordon v. United States, 2 Wall. 561, 17 L.Ed. 921, this Court refused to review a judgment of the Court of Claims because it construed that section as giving the Secretary a revisory authority over the court inconsistent with its exercise of judicial power. Congress promptly repealed the offensive section, Act of March 17, 1866, c. 19, § 1, 14 Stat. 9, once again exhibiting its purpose to liberate the Court of Claims from itself and the Executive. Thereafter, the Supreme Court promulgated rules governing appeals from the court, 3 Wall. vii viii, and took jurisdiction under them for the first time in De Groot v. United States, 5 Wall. 419, 18 L.Ed. 700.
51
The early appeals entertained by the Court furnish striking evidence of its understanding that the Court of Claims had been vested with judicial power. In De Groot the court had been given jurisdiction by special bill only after the passage of two private bills had failed to produce agreement by administrative officials upon adeqquate recompense. This Court was thus presented with a vivid illustration of the ways in which the same matter might be submitted for resolution to a legislative committee, to an executive officer, or to a court, Murray's Lessee, supra, and nevertheless accepted appellate jurisdiction over what was, necessarily, an exercise of the judicial power which alone it may review. Marbury v. Madison, 1 Cranch 137, 174—175, 2 L.Ed. 60.
52
After the repeal of § 14, the Court was quick to protect the Court of Claims' judgments from executive revision. In United States v. O'Grady, 22 Wall. 641, 22 L.Ed. 772, a judgment had been diminished by the Secretary of the Treasury in an amount equal to a tax assertedly due, although the United States had not pleaded a set-off as it was entitled by the 1863 Act to do.26 The Court of Claims and this Court on appeal held the deduction unwarranted in law, with the following pertinent closing observation:
53
'Should it be suggested that the judgment in question was rendered in the Court of Claims, the answer to the suggestion is that the judgment of the Court of Claims, from which no appeal it taken, is just as conclusive under existing laws as the judgment of the Supreme Court, until it is set aside on a motion for a new trial.'27
54
Like views abound in the early reports. In United States v. Union Pacific R. Co., 98 U.S. 569, 603, 25 L.Ed. 143, for example, referring to Article III, the Court said:
55
'Congress has, under this authority, created the district courts, the circuit courts, and the Court of Claims, and vested each of them with a defined portion of the judicial power found in the Constitution.'
56
Such remained the view of the Court as late as Miles v. Graham, 268 U.S. 501, 45 S.Ct. 601, 69 L.Ed. 1067, decided in 1925. There it was held, on the authority of Evans v. Gore, 253 U.S. 245, 40 S.Ct. 550, 64 L.Ed. 887, that the salary of a Court of Claims judge appointed even after enactment of the taxing statute in question was not subject to such diminution. Although the case was afterwards overruled on this point, O'Malley v. Woodrough, 307 U.S. 277, 283, 59 S.Ct. 838, 840, 83 L.Ed. 1289, what is of continuing interest is the Court's reliance in Miles upon Evans v. Gore, where Mr. Justice Van Devanter for the Court devoted six full pages to recitation of the importance of the guarantees of tenure and salary contained in Article III.28 How it was possible to say in Bakelite, 279 U.S., at 455, 49 S.Ct. at 415, that the Court in Miles, decided only five years after Evans and with copious quotation from it, was unaware of the crucial question whether Article III extended its protection to a judge of the Court of Claims, is very difficult to understand.
57
In actuality, the Court's pre-Bakelite view of the Court of Claims in supported by the evidence of increasing confidence placed in that tribunal by Congress. The Tucker Act, § 1, 24 Stat. 505 (1887), now 28 U.S.C. § 1491, 28 U.S.C.A. § 1491, greatly expanded the jurisdiction of the court by authorizing it to adjudicate
58
'All claims founded upon the Constitution of the United States or any law of Congress, except for pensions, or upon any regulation of an Executive Department, or upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable * * *.'
59
All of the cases within this grant of jurisdiction arise either immediately or potentially under federal law within the meaning of Art. III, § 2. Osborn v. Bank of the United States, 9 Wheat. 738, 818—819, 823—825, 6 L.Ed. 204; see Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838; Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10; Mishkin, The Federal 'Question' in the District Courts, 53 Col.L.Rev. 157, 184—196. The cases heard by the Court have been as intricate and far-ranging as any coming within the federal-question jurisdiction, 28 U.S.C. § 1331, 28 U.S.C.A. § 1331, of the District Courts. E.g., Causby v. United States, 60 F.Supp. 751, 104 St.Cl. 342, remanded for further findings, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (eminent domain); Lovett v. United States, 66 F.Supp. 142, 104 Ct.Cl. 557, aff'd, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252 (bill of attainder); Shapiro v. United States, 69 F.Supp. 205, 107 Ct.Cl. 650 (military due process). In none of these cases, nor in others, could it well be suggested that the Court of Claims had adjudged the issues, no matter how important to the Government, otherwise than dispassionately.
60
Indeed there is reason to believe that the Court of Claims has been constituted as it is precisely to the end that there may be a tribunal specially qualified to hold the Government to strict legal accounting. From the beginning it has been given jurisdiction only to award damages, not specific relief. United States v. Alire, 6 Wall. 573, 18 L.Ed. 947; United States v. Jones, 131 U.S. 1, 9 S.Ct. 669, 33 L.Ed. 90; see Schwartz and Jacoby, Government Litigation (tentative ed. 1960), 123—126. No question can be raised of Congress' freedom, consistently with Article III, to impose such limitation upon the remedial powers of a federal court. Lauf v. E. G. Shinner & Co., 303 U.S. 323, 330, 58 S.Ct. 578, 581, 82 L.Ed. 872 (Norris-LaGuardia Act). But far from serving as a restriction, this limitation has allowed the Court of Claims a greater freedom than is enjoyed by other federal courts to inquire into the legality of governmental action. See Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 703 704, 69 S.Ct. 1457, 1468, 93 L.Ed. 1628; Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168; Brenner, Judicial Review by Money Judgment in the Court of Claims, 21 Fed.B.J. 179 (1961).
61
'If there are such things as political axioms,' said Alexander Hamilton, 'the propriety of the judicial power of a government being coextensive with its legislative, may be ranked among the number.' The Federalist, No. 80 (Wright ed. 1961), at 500. His sentiments were not ignored by the Framers of Article III. The Randolph plan, which formed the basis of that article, called for establishment of a national judiciary coextensive in authority with the executive and legislative branches. IV Farrand, The Records of the Federal Convention (rev. ed. 1937), 47—48. For, as Hamilton observed, a chief defect of the Confederation had been '* * * the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation.' The Federalist, No. 22 (Wright ed. 1961), at 197. But because of the barrier of sovereign immunity, the laws controlling governmental rights and obligations could not for years obtain a fully definitive exposition. The creation of the Court of Claims can be viewed as a fulfillment of the design of Article III.
62
B. The Court of Customs and Patent Appeals.—The Court of Customs Appeals, as it was first known, was established by § 29 of the Customs Administrative Act of 1890, c. 407, 26 Stat. 131, as added by § 28 of the Payne-Aldrich Tariff Act of August 5, 1909, c. 6, 36 Stat. 11, 105, to review by appeal final decisions of the Board of General Appraisers (now Customs Court) respecting the classification and rate of duty applicable to imported merchandise. The Act was silent about the tenure of the judges, as had been the Judiciary Act of 1789, c. 20, §§ 3, 4, 1 Stat. 73—75, 28 U.S.C.A. §§ 133, 457, 141, 41. The salary, first set at $10,000, was afterwards lowered to the $7,000 then being paid to circuit judges, Act of February 25, 1910, c. 62, § 1, 36 Stat. 202, 214, but before the first nominations had been received or confirmed, see 45 Cong.Rec. 2959, 4003 (1910); and, although it has since been increased, it has never been diminished.29 After the Bakelite case had been decided, Congress expressly conferred tenure during good behavior upon the court's judges, in the Tariff Act of 1930, § 646, 46 Stat. 590, 762.* Representative Chindblom, in supporting the measure, stated that 'when this court was established it was believed to be a constitutional court (so) that it was not necessary to fix the term.' 71 Cong.Rec. 2043 (1929).
63
The debates in the Senate at the time of the court's creation bear out this observation. See 44 Cong.Rec. 4185—4225 (1909). For under the Customs Administrative Act of 1890, c. 407, § 15, 26 Stat. 131, 138, review of decisions of the Board of General Appraisers had been vested in the Circuit Courts, undoubted Article III courts; it was this jurisdiction that was proposed to be transferred to the new court.30 The debates accordingly concerned themselves with whether there was a need for a specialized court in the federal judicial system to deal with customs matters.
64
As was said some 35 years age, 'an important phase of the history of the federal judiciary deals with the movement for the establishment of tribunals whose business was to be limited to litigation arising from a restricted field of legislative control.' Frankfurter and Landis, The Business of the Supreme Court (1927), 147. In certain areas of federal judicial business there has been a felt need to obtain, first, the special competence in complex, technical and important matters that comes from narrowly focused inquiry; second, the speedy resolution of controversies available on a docket unencumbered by other matters; and, third, the certainty and definition that come from nationwide uniformity of decision. See generally id., at 146—186. Needs such as these provoked formation of the Commerce Court and the Emergency Court of Appeals. They also prompted establishment of the Court of Customs and Patent Appeals and its investiture with jurisdiction over customs, tariff, and patent and trademark litigation. 28 U.S.C. §§ 1541 1543, 28 U.S.C.A. §§ 1541—1543.
65
The parallelism with the Commerce Court is especially striking. That court was created to exercise the jurisdiction previously held by the Circuit Courts to review orders of the Interstate commerce Commission. Mann-Elkins Act of June 18, 1910, c. 309, 36 Stat. 539. It was needed, so its sponsors believed, to afford uniform, expert, and expeditious judicial review. See President Taft's message to Congress, 45 Cong.Rec. 379 (1910), in the course of which he stated:
66
'Reasons precisely analogous to those which induced the Congress to create the court of customs appeals by the provisions in the tariff act of August 5, 1909, may be urged in support of the creation of the commerce court.'
67
When disfavor with the court caused its abolition three years later, Act of October 22, 1913, c. 32, 38 Stat. 208, 219, it was decided in Congress after extensive debate that the judges then serving on it were protected in tenure by Article III, and they were thereafter assigned to sit on other constitutional courts. See, e.g., 48 Cong.Rec. 7994 (1912) (remarks of Senator Sutherland); and see Donegan v. Dyson, 269 U.S. 49, 46 S.Ct. 55, 70 L.Ed. 159.
68
The Emergency Court of Appeals was similarly created, by the Act of January 30, 1942, c. 26, 56 Stat. 23, to exercise exclusive equity jurisdiction to determine the validity of regulations, price schedules, and orders issued by the wartime Office of Price Administration.31 Its Article III status was recognized in Lockerty v. Phillips, 319 U.S. 182, 187—188, 63 S.Ct. 1019, 1022, 87 L.Ed. 1339.
69
Of course the judges of those courts were appointed as judges of inferior federal courts generally, or drawn from among those previously appointed as such. See page 538 of 370 U.S., page 1466 of 82 S.Ct. and note 11, supra. But by 1942 at least, when the latter court was created, Congress was well aware of the doubt created by the Bakelite and Williams decisions whether Article III judges could sit on non-Article III tribunals. Its action in authorizing judges of the District Courts and Courts of Appeals to sit on the Emergency Court thus reflects its understanding that that court was being created under Article III.
70
Such an understanding parallels that of previous Congresses since the adoption of the Constitution. Congress has never been compelled to vest the entire jurisdiction provided for in Article III upon inferior courts of its creation; until 1875 it conferred very little of it indeed. See 370 U.S., pp. 551—552, 82 S.Ct., pp. 1473—1474, supra. The Court of Customs and Patent Appeals therefore fits harmoniously into the federal judicial system authorized by Article III.
VII.
Article III, § 2 provides in part:
71
'The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; * * *—to Controversies to which the United States shall be a Party * * *.'
72
The cases heard by the Court of Claims and the Court of Customs and Patent Appeals all arise under federal law, as we have seen; they are also cases in which the United States is a party. But in Williams v. United States, 289 U.S. 553, 572—578, 53 S.Ct. 751, 757, 759, 77 L.Ed. 1372, far from making of that circumstance a further proof that the Court of Claims exercises the judicial power contemplated by Article III, this Court held that it did not because that article, so it was said, does not make justiciable controversies to which the United States is a party defendant.
73
The Court's opinion dwelt in part upon the omission of the word 'all' before 'Controversies' in the clause referred to. To derive controlling significance from this semantic circumstance seems hardly to be faithful to John Marshall's admonition that 'it is a constitution we are expounding.' McCulloch v. Maryland, 4 Wheat. 316, 407, 4 L.Ed. 579. But it would be needlessly literal to suppose that the Court rested its holding on this point. Rather it deemed controlling the rule, 'well settled and understood' at the time of the Constitutional Convention, that 'the sovereign power is immune from suit.' 289 U.S., at 573, 53 S.Ct. at 757. Accordingly it becomes necessary to reconsider whether that principle has the effect claimed of rendering suits against the United States nonjusticiable in a court created under Article III.
74
At least one touchstone of justiciability to which this Court has frequently had reference is whether the action sought to be maintained is of a sort 'recognized at the time of the Constitution to be traditionally within the power of courts in the English and American judicial systems.' United Steelworkers v. United States, 361 U.S. 39, 44, 60, 80 S.Ct. 1, 4, 185, 4 L.Ed.2d 12 (FRANKFURTER, J., concurring). There can be little doubt that that test is met here. Suits against the English sovereign by petition of liberate, monstrans de droit, and other forms of action designed to gain redress against unlawful action of the Crown had been developed over several centuries and were wellestablished before the Revolution. See 9 Holdsworth, History of English Law, 7—45 (1926). Similar provisions for judicial remedies against themselves were made by the American States immediately after the Revolution. E.g., 9 Laws of Va. 536, 540 (1778) (Hening 1821); see Higginbotham's Executrix v. Commonwealth, 25 Gratt. 627, 637—638 (Va.1874). This history was known by Congress when it established the Court of Claims, see Cong. Globe, 33d Cong., 2d Sess. 73 (1854) (remarks of Senator Pettit), and undoubtedly was familiar to the Framers of the Constitution, most of them lawyers.
75
Hamilton's view, quoted in the Williams case, 289 U.S., at 576, 53 S.Ct. at 758, are not to the contrary. To be sure, Hamilton argued that 'the contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretension to a compulsive force. They confer no right of action independent of the sovereign will.' The Federalist, No. 81 (Wright ed. 1961), at 511. But that is because there was no surrender of sovereign immunity in the plan of the convention;32 so that, for suits against the United States, it remained 'inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.' Ibid. (Emphasis in original.) In this sense, and only in this sense, is Article III's extension of judicial competence over controversies to which the United States is a party ineffective to confer jurisdiction over suits to which it is a defendant. For 'behind the words of the constitutional provisions are postulates which limit and control.' Principality of Monaco v. Mississippi, 292 U.S. 313, 322, 54 S.Ct. 745, 748, 78 L.Ed. 1282. But once the consent is given, the postulate is satisfied, and there remains no barrier to justiciability. Cf. Cohens v. Virginia, 6 Wheat. 264, 383—385, 5 L.Ed. 257.
76
So the Court had given itself to understand before Williams was decided. In United States v. Louisiana, 123 U.S. 32, 35, 8 S.Ct. 17, 18, 31 L.Ed. 69, it held maintainable under Article III a suit brought in the Court of Claims by a State against the United States with Congress' consent. And in Minnesota v. Hitchcock, 185 U.S. 373, 384, 22 S.Ct. 650, 654, 46 L.Ed. 954, which reaffirmed that ruling, the Court said:
77
'This is a controversy to which the United States may be regarded as a party. It is one, therefore to which the judicial power of the United States extends. It is, of course, under that clause, a matter of indifference whether the United States is a party plaintiff or defendant.'
78
Further in the same opinion, 185 U.S., at 386, 22 S.Ct. at 655, the Court significantly remarked:
79
'While the United States as a government may not be sued without its consent, yet with its consent it may be sued, and the judicial power of the United States extends to such a controversy. Indeed, the whole jurisdiction of the Court of Claims rests upon this proposition.' To deny that proposition now would be to call into question a large measure of the jurisdiction exercised by the United States District Courts. Under the Federal Tort Claims Act, § 410(a), 60 Stat. 842, 843—844 (1946), as amended, 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b), those courts have been emplowered to determine the tort liability of the United States in suits brought by individual plaintiffs. In so doing, they exercise functions akin to those of the Court of Claims, as is evidenced by the statutory authorization of appeals to that court from their judgments, with the consent of the appellee. § 412(a) (2), 60 Stat. 844—845 (1946), as amended, 28 U.S.C. § 1504, 28 U.S.C.A. § 1504.
80
In truth the District Courts have long been vested with substantial portions of the identical jurisdiction exercised by the Court of Claims. The Tucker Act, § 2, 24 Stat. 505 (1887), as amended, 28 U.S.C. § 1346(a)(2), 28 U.S.C.A. § 1346(a)(2), gives them concurrent jurisdiction over the suits it authorizes, when the amount in controversy is less than $10,000. Under that Act a District Court sits 'as a court of claims,' United States v. Sherwood, 312 U.S. 584, 591, 61 S.Ct. 767, 771, 85 L.Ed. 1058, and affords the same rights and privileges to suitors against the United States. Bates Manufacturing Co. v. United States, 303 U.S. 567, 571, 58 S.Ct. 694, 696, 82 L.Ed. 1020. See generally Schwartz and Jacoby, Government Litigation (tentative ed. 1960), 109—111.
81
There have been and are further statutory indications that Congress regards the two courts interchangeably. In 1921, Mr. Justice Brandeis compiled a list of 17 statutes passed during World War I, permitting suit against the United States for the value of property seized for use in the war effort, and authorizing them to be instituted in either the Court of Claims or one of the District Courts. United States v. Pfitsch, 256 U.S. 547, 553 note 1, 41 S.Ct. 569, 571, 65 L.Ed. 1084. Today, 28 U.S.C. § 1500, 28 U.S.C.A. § 1500 gives litigants an election to sue the United States as principal in the Court of Claims or to pursue their claims against its agents in any other court, including the District Courts. See National Cored Forgings Co. v. United States, 132 F.Supp. 454, 132 Ct.Cl. 11. In addition, by the Act of September 13, 1960, §§ 1, 2(a), 74 Stat. 912, Congress added §§ 1406(c) and 1506 to Title 28 of the United States Code, 28 U.S.C.A. §§ 1406(c), 1506, providing for transfer between the Court of Claims and any District Court when a suit within one court's exclusive jurisdiction is brought mistakenly in another.
82
These evidences of congressional understanding that suits against the United States are justiciable in courts created under Article III may not be lightly disregarded. Nevertheless it is probably true that Congress devotes a more lively attention to the work performed by the Court of Claims, and that it has been more prone to modify the jurisdiction assigned to that court. It remains to consider whether that circumstance suffices to render nonjudicial the decision of claims against the United States in the Court of Claims.
83
First. Throughout its history the Court of Claims has frequently been given jurisdiction by special act to award recovery for breach of what would have been, on the part of an individual, at most a moral obligation. E.g., 45 Stat. 602 (1928), as amended, 25 U.S.C. §§ 651—657, 25 U.S.C.A. §§ 651—657; Indians of California v. United States, 98 Ct.Cl. 583, 599. Congress has waived the benefit of res judicata, Cherokee Nation v. United States, 270 U.S. 476, 486, 46 S.Ct. 428, 432, 70 L.Ed. 694, and of defenses based on the passage of time, United States v. Alcea Band of Tillamooks, 329 U.S. 40, 45—46, 67 S.Ct. 167, 169, 170, 91 L.Ed. 29; United States v. Central Eureka Mining Co., 357 U.S. 155, 78 S.Ct. 1097, 2 L.Ed.2d 1228.
84
In doing so, as this Court has uniformly held, Congress has enlisted the aid of judicial power whose exercise is amenable to appellate review here. United States v. Alcea Band of Tillamooks, supra; see Colgate v. United States, 280 U.S. 43, 47—48, 50 S.Ct. 22, 23, 74 L.Ed. 157. Indeed the Court has held that Congress may for reasons adequate to itself confer bounties upon persons and, by consenting to suit, convert their moral claim into a legal one enforceable by litigation in an undoubted constitutional court. United States v. Realty Co., 163 U.S. 427, 16 S.Ct. 1120, 41 L.Ed. 215.
85
The issue was settled beyond peradventure in Pope v. United States, 323 U.S. 1, 65 S.Ct. 16, 89 L.Ed. 3. There the Court held that for Congress to direct the Court of Claims to entertain a claim theretofore barred for any legal reason from recovery—as, for instance, by the statute of limitations, or because the contract had been drafted to exclude such claims—was to invoke the use of judicial power, notwithstanding that the task might involve no more than computation of the sum due. Consent judgments, the Court recalled, are nonetheless judicial judgments. See 323 U.S., at 12, 65 S.Ct. at 22, and cases cited. After this decision it cannot be doubted that when Congress transmutes a moral obligation into a legal one by specially consenting to suit, it authorizes the tribunal that hears the case to perform a judicial function.
86
Second. Congress has on occasion withdrawn jurisdiction from the Court of Claims to proceed with the disposition of cases pending therein, and has been upheld in so doing by this this Court. E.g., District of Columbia v. Eslin, 183 U.S. 62, 22 S.Ct. 17, 46 L.Ed. 85. But that is not incompatible with the possession of Article III judicial power by the tribunal affected. Congress has consistently with that article withdrawn the jurisdiction of this Court to proceed with a case then sub judice, Ex parte McCardle, 7 Wall. 506, 19 L.Ed. 264; its power can be no less when dealing with an inferior federal court, In re Hall, 167 U.S. 38, 42, 17 S.Ct. 723, 724, 42 L.Ed. 69. For as Hamilton assured those of his contemporaries who were concerned about the reach of power that might be vested in a federal judiciary, 'it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove (any) * * * inconveniences.' The Federalist, No. 80 (Wright ed. 1961), at 505.
87
The authority is not, of course, unlimited. In 1870, Congress purported to withdraw jurisdiction from the Court of Claims and from this Court on appeal over cases seeking indemnification for property captured during the Civil War, so far as eligibility therefor might be predicated upon an amnesty awarded by the President, as both courts had previously held that it might. Despite Ex parte McCardle, supra, the Court refused to apply the statute to a case in which the claimant had already been adjudged entitled to recover by the Court of Claims, calling it an unconstitutional attempt to invade the judicial province by prescribing a rule of decision in a pending case. United States v. Klein, 13 Wall. 128, 20 L.Ed. 519. Surely no such concern would have been manifested if it had not been thought that the Court of Claims was invested with judicial power.33
VIII.
88
A more substantial question relating to the justiciability of money claims against the United States arises from the impotence of a court to enforce its judgments. It was Chief Justice Taney's opinion, in Gordon v. United States, afterwards published at 117 U.S. 697, 702, that the dependence of the Court of Claims upon an appropriation by Congress to carry its awards into effect negatived the possession of judicial power:
89
'The award of execution is a part, and an essential part of every judgment passed by a court exercising judicial power.'
90
But Taney's opinion was not the opinion of the Court. It was a memorandum of his views prepared before his death and circulated among, but not adopted by, his brethren. The opinion of the Court, correctly reported for the first time in United States v. Jones, 119 U.S. 477, 478, 7 S.Ct. 283, 284, 30 L.Ed. 440, makes clear that its refusal to entertain the Gordon appeal rested solely on the revisory authority vested in the Secretary of the Treasury before the repeal of § 14. See also United States v. Alire, 6 Wall. 573, 576, 18 L.Ed. 947; United States v. O'Grady, 22 Wall. 641, 647, 22 L.Ed. 772; Langford v. United States, 101 U.S. 341, 344—345, 25 L.Ed. 1010—in each of which the limitation of the Gordon decision to the difficulties caused by § 14 clearly appears.
91
Nevertheless the problem remains and should be considered. Its scope has, However, been reduced by the Act of July 27, 1956, § 1302, 70 Stat. 678, 694, 31 U.S.C. § 724a, 31 U.S.C.A. § 724a, a general appropriation act which eliminates the need for subsequent separate appropriations to pay judgments below $100,000. A judgment creditor of this order simply files in the General Accounting Office a certificate of the judgment signed by the clerk and the chief judge of the Court of Claims, and is paid. 28 U.S.C. § 2517(a), 28 U.S.C.A. § 2517(a). For judgments of this dimension, therefore, there need be no concern about the issuance of execution.
92
For claims in excess of $100,000, 28 U.S.C. § 2518, 28 U.S.C.A. § 2518 directs the Secretary of the Treasury to certify them to Congress once review in this Court has been foregone or sought and found unavailing. This, then, is the domain of our problem, for Art. I, § 9, cl. 7, vests exclusive responsibility for appropriations in Congress,34 and the Court early held that no execution may issue directed to the Secretary of the Treasury until such an appropriation has been made. Reeside v. Walker, 11 How. 272, 291, 13 L.Ed. 693.
93
The problem was recognized in the Congress that created the Court of Claims, where it was pointed out that if ability to enforce judgments were made a criterion of judicial power, no tribunal created under Article III would be able to assume jurisdiction of money claims against the United States. Cong.Globe, 33d Cong., 2d Sess. 113 (1854) (remarks of Senator Stuart). The subsequent vesting of such jurisdiction in the District Courts, 370 U.S., pp. 565—566, 82 S.Ct. pp. 1480—1481, supra, of course bears witness that at least the Congress has not thought such a criterion imperative.
94
Ever since Congress first accorded finality to judgments of the Court of Claims, it has sought to avoid interfering with their collection. Section 7 of the Act of March 3, 1863, 12 Stat. 765, 766, provided for the payment of final judgments out of general appropriations. In 1877, Congress shifted for a time to appropriating lump sums for judgments certified to it by the Secretary of the Treasury, not in order to question the judgments but to avoid the possibility that a large judgment might exhaust the prior appropriation. Act of March 3, 1877, c. 105, 19 Stat. 344, 347; see 6 Cong.Rec. 585—588 (1877). A study concluded in 1933 found only 15 instances in 70 years when Congress had refused to pay a judgment. Note, 46 Harv.L.Rev. 677, 685—686 n. 63. This historical record, surely more favorable to prevailing parties than that obtaining in private litigation, may well make us doubt whether the capacity to enforce a judgment is always indispensable for the exercise of judicial power.
95
The Court did not think so in La Abra Silver Mining Co. v. United States, 175 U.S. 423, 461—462, 20 S.Ct. 168, 181—182, 44 L.Ed. 223, where the issue was the justiciability under Article III of a declaratory judgment action brought by the United States in the Court of Claims to determine its liability for payment of an award procured by the defendant from an international arbitral commission assertedly through fraud. See also Nashville, C. & St. L.R. Co. v. Wallace, 288 U.S. 249, 263, 53 S.Ct. 345, 348, 77 L.Ed. 730. Nor has it thought so when faced with the exactly analogous problem presented by suits for money between States in the original jurisdiction. That jurisdiction has been upheld, for example, in South Dakota v. North Carolina, 192 U.S. 286, 318—321, 24 S.Ct. 269, 275—277, 48 L.Ed. 448, notwithstanding the Court's recognition of judicial impotence to compel a levy of taxes or otherwise by process to enforce its award. See especially the opinions of Chief Justice Fuller and Chief Justice White at the beginning and inconclusive end of the extended litigation between Virginia and West Virginia, 206 U.S. 290, 319, 27 S.Ct. 732, 741, 51 L.Ed. 1068 (1907) and 246 U.S. 565, 38 S.Ct. 400, 59 L.Ed. 1272 (1918), in which the Court asserted jurisdiction to award damages for breach of contract despite persistent and never-surmounted challenges to its power to enforce a decree.35 If this Court may rely on the good faith of state governments or other public bodies to respond to its judgments, there seems to be no sound reason why the Court of Claims may not rely on the good faith of the United States. We conclude that the presence of the United States as a party defendant to suits maintained in the Court of Claims and the Court of Customs and Patent Appeals does not debar those courts from exercising the judicial power provided for in Article III.
IX.
96
All of the business that comes before the two courts is susceptible of disposition in a judicial manner. What remains to be determined is the extent to which it is in fact disposed of in that manner.
97
A preliminary consideration that need not detain us long is the absence of provision for jury trial of counterclaims by the Government in actions before the Court of Claims. Despite dictum to the contrary in United States v. Sherwood, 312 U.s. 584, 587, 61 S.Ct. 767, 770, 85 L.Ed. 1058, the legitimacy of that nonjury mode of trial does not depend upon the supposed 'legislative' character of the court. It derives instead, as indeed was also noted in Sherwood, ibid., from the fact that suits against the Government, requiring as they do a legislative waiver of immunity, are not 'suits at common law' within the meaning of the Seventh Amendment. McElrath v. United States, 102 U.S. 426, 439—440, 26 L.Ed. 189. The Congress was not, therefore, required to provide jury trials for plaintiffs suing in the Court of Claims; the reasonableness of its later decision to obviate the need for multiple litigation precludes a finding that its imposition of amenability to nonjury set-offs was an unconstitutional condition. Cf. Minneapolis & St. L.R. Co. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961; see 74 Harv.L.Rev. 414, 415 (1960).36
98
The principal question raised by the parties under this head of the argument is whether the matters referred by Congress to the Court of Claims and the Court of Customs and Patent Appeals are submitted to them in a form consonant with the limitation of judicial power to 'cases or controversies' imposed by Article III. We may consider first the bulk of jurisdiction exercised by the two courts, reserving for separate treatment in the next section of this opinion two areas which may reasonably be regarded as presenting special difficulty.
99
'Whether a proceeding which results in a grant is a judicial one,' said Mr. Justice Brandeis for a unanimous Court, 'does not depend upon the nature of the thing granted, but upon the nature of the proceeding which Congress has provided for securing the grant. The United States may create rights in individuals against itself and provide only an administrative remedy. * * * It may provide a legal remedy, but make resort to the courts available only after all administrative remedies have been exhausted. * * * It may give to the individual the option of either an administrative or a legal remedy. * * * Or it may provide only a (legal) remedy. (See 370 U.S., pp. 549—552, 82 S.Ct. pp. 1472 1474, supra.) Whenever the law provides a remedy enforceable in the courts according to the regular course of legal procedure, and that remedy is pursued, there arises a case within the meaning of the Constitution, whether the subject of the litigation be property or status.' Tutun v. United States, 270 U.S. 568, 576 577, 46 S.Ct. 425, 426—427, 70 L.Ed. 738. (Citations omitted.)
100
It is unquestioned that the Tucker Act cases assigned to the Court of Claims, 28 U.S.C. § 1491, 28 U.S.C.A. § 1491, advance to judgment 'according to the regular course of legal procedure.' Under this grant of jurisdiction the court hears tax cases, cases calling into question the statutory authority for a regulation, controversies over the existence or extent of a contractual obligation, and the like. See generally Schwartz and Jacoby, Government Litigation (tentative ed. 1960), 131—223. Such cases, which account for as much as 95% of the court's work,37 form the staple judicial fare of the regular federal courts. There can be no doubt that, to the 'expert feel of lawyers,' United Steelworkers v. United States, 361 U.S. 39, 44, 60, 80 S.Ct. 1, 4, 185, 4 L.Ed.2d 12 (Frankfurter, J., concurring), they constitute cases or controversies.
101
The balance of the court's jurisdiction to render final judgments may likewise be assimilated to the traditional business of courts generally. Thus the court has been empowered to render accountings,38 to decide if debts39 or penalties40 are due the United States, and to determine the liability of the United States for patent or copyright infringement41 and for other specially designated torts.42 In addition, it has been given jurisdiction to review, on issues of law including the existence of substantial evidence, decisions of the Indian Claims Commission.43 Each of these cases, like those under the Tucker Act, is contested, is concrete, and admits of a decree of a sufficiently conclusive character. See Aetan Life Insurance Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240—241, 57 S.Ct. 461, 463—464, 81 L.Ed. 617.
102
The same may undoubtedly be said of the customs jurisdiction vested in the Court of Customs and Patent Appeals by 28 U.S.C. § 1541, 28 U.S.C.A. § 1541.44 Contests over classification and valuation of imported merchandise have long been maintainable in inferior federal courts. Under R.S. § 3011 (1878), suits after protest against the collector were authorized in the circuit courts. E.g., Greely's Administrator v. Burgess, 18 How. 413, 15 L.Ed. 455; Iasigi v. The Collector, 1 Wall. 375, 17 L.Ed. 686. When the Customs Administrative Act of 1890 was passed, c. 407, 26 Stat. 131, repealing that section and creating a Board of General Appraisers to review determinations of the collector, a further right of review was provided in the Circuit Courts. See De Lima v. Bidwell, 182 U.S. 1, 175, 21 S.Ct. 743, 744, 45 L.Ed. 1041. This Court took unquestioned appellate jurisdiction from those courts on numerous occasions. E.g., United States v. Ballin, 144 U.S. 1, 12 S.Ct. 507, 36 L.Ed. 321; Hoeninghaus v. United States, 172 U.S. 622, 19 S.Ct. 305, 43 L.Ed. 576. It has continued to accept review by certiorari from the Court of Customs Appeals since the jurisdiction of the Circuit Courts was transferred to it in 1909. E.g., Five Per Cent. Discount Cases, 243 U.S. 97, 37 S.Ct. 346, 61 L.Ed. 617; Barr v. United States, 324 U.S. 83, 65 S.Ct. 522, 89 L.Ed. 765. That the customs litigation authorized by § 1541 conforms to conventional notions of case or controversy seems no longer open to doubt.
103
Doubt has been expressed, however, about the jurisdiction conferred by 28 U.S.C. § 1542, 28 U.S.C.A. § 1542 and 60 Stat. 435 (1946), as amended, 15 U.S.C. § 1071, 15 U.S.C.A. § 1071, to review application and interference proceedings in the Patent Office relative to patents and trademarks. Parties to those proceedings are given an election to bring a civil action to contest the Patent Office decision in a District Court under 35 U.S.C. §§ 145, 146, 35 U.S.C.A. §§ 145, 146, or to seek review in the Court of Customs and Patent Appeals under 35 U.S.C. § 141, 35 U.S.C.A. § 141. If the latter choice is made, the Court confines its review to the evidence adduced before the Patent Office and to the questions of law preserved by the parties; its decision 'shall be entered of record in the Patent Office and govern the further proceedings in the case.' 35 U.S.C. § 144, 35 U.S.C.A. § 144. The codification 'omitted as superfluous' the last sentence in the existing statute: 'But no opinion or decision of the court in any such case shall preclude any person interested from the right to contest the validity of such patent in any court wherein the same may be called in question.' Act of July 8, 1870, c. 230, § 50, 16 Stat. 198, 205; see Reviser's Note to 35 U.S.C. § 144, 35 U.S.C.A. § 144.
104
The latter provision was evidently instrumental in prompting a decision of this Court, at a time when review of Patent Office determinations was vested in the Court of Appeals for the District of Columbia, that the ruling called for by the statute was not of a judicial character. Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693, 699, 47 S.Ct. 284, 286, 71 L.Ed. 478. That is the most that the Postum holding can be taken to stand for, as United States ex rel. Bernardin v. Duell, 172 U.S. 576, 588—589, 19 S.Ct. 286, 290, 43 L.Ed. 559, had upheld the judicial nature of the review in all other respects.45 And the continuing vitality of the decision even to this extent has been seriously weakened if not extinguished by the subsequent holding in Hoover Co. v. Coe, 325 U.S. 79, 88, 65 S.Ct. 955, 959, 89 L.Ed. 1488, sustaining the justiciability of the alternative remedy by civil action even though the Court deemed 'the effect of adjudication in equity the same as that of decision on appeal.' See Kurland and Wolfson, Supreme Court Review of the Court of Customs and Patent Appeals: Patent Office and Tariff Commission Cases, 18 G.W.L.Rev. 192, 194 198 (1950).
105
At the time when Postum was decided, the proceeding in equity against the Patent Office was cumulative rather than alternative with the review by appeal, and it seems likely that it was this feature of the statute which caused the Court to characterize the judgment of the Court of Appeals as 'a mere administrative decision.' 272 U.S., at 698, 47 S.Ct., at 285. Thereafter Congress made the remedies alternative, Act of March 2, 1927, c. 273, § 11, 44 Stat. 1335, 1336, and it was this amended jurisdiction that it later transferred to the Court of Customs and Patent Appeals, renaming the court in the process. Act of March 2, 1929, c. 488, 45 Stat. 1475.
106
It may still be true that Congress has given to the equity proceeding a greater preclusive effect than that accorded to decisions of the Court of Customs and Patent Appeals.46 Even so, that circumstance alone is insufficient to make those decisions nonjudicial. Tutun v. United States, 270 U.S. 568, 46 S.Ct. 425, 70 L.Ed. 738, decided by the same Court as Postum and not there questioned, is controlling authority. For the Court there held that a naturalization proceeding in a Federal District Court was a 'case' within the meaning of Article III, even though the Government was empowered by statute47 to bring a later bill in equity for cancellation of the certificate.
107
Mr. Justice Brandeis, the author of the Tutun opinion, had also prepared the Court's opinion in United States v. Ness, 245 U.S. 319, 38 S.Ct. 118, 62 L.Ed. 321, which upheld the Government's right to seek denaturalization even upon grounds known to and asserted unsuccessfully by it in the naturalization court.48 Proceedings in that court, the opinion explained, were relatively summary, with no right of appeal, whereas the denaturalization suit was plenary enough to permit full presentation of all objections and was accompanied with appeal as of right. 245 U.S., at 326, 38 S.Ct., at 121. These differences made it reasonable for Congress to allow the Government another chance to contest the applicant's eligibility.
108
The decision in Tutun, coming after Ness, draws the patent and trademark jurisdiction now exercised by the Court of Customs and Patent Appeals fully within the category of cases or controversies. So much was recognized in Tutun itself, 270 U.S., at 578, 46 S.Ct., at 427, where Mr. Justice Brandeis observed:
109
'If a certificate is procured when the prescribed qualifications have no existence in fact, it may be cancelled by suit. 'It is in this respect,' as stated in Johannessen v. United States, 32 S.Ct. 613, 615, 225 U.S. 227, 238 (56 L.Ed. 1066) 'closely analogous to a public grant of land (Rev.Stat. § 2289 et seq. * * , or of the exclusive right to make, use and vend a new and useful invention (Rev.Stat., § 4883, et seq. * * ." (Emphasis added.)
110
Like naturalization proceedings in a District Court, appeals from Patent Office decisions under 35 U.S.C. § 144, 35 U.S.C.A. § 144 are relatively summary—since the record is limited to the evidence allowed by that office—and are not themselves subject to direct review by appeal as of right.49 It was as reasonable for Congress, therefore, to bind only the Patent Office on appeals and to give private parties whether or not participants in such appeals a further opportunity to contest the matter on plenary records developed in litigation elsewhere. This practice but furnishes a further illustration of the specialized jurisdiction of the Court of Customs and Patent Appeals, akin to that of the Commerce Court, in passing upon the consistency with law of expert administrative judgments without undertaking to conclude private parties in nonadministrative litigation. We conclude that the Postum decision must be taken to be limited to the statutory scheme in existence before the transfer of patent and trademark litigation to that court.
X.
111
We turn finally to the more difficult questions raised by the jurisdiction vested in the Court of Customs and Patent Appeals by 28 U.S.C. § 1543, 28 U.S.C.A. § 1543 to review Tariff Commission findings of unfair practices in import trade, and the congressional reference jurisdiction given the Court of Claims by 28 U.S.C. §§ 1492 and 2509, 28 U.S.C.A. §§ 1492, 1509. The judicial quality of the former was called into question though not resolved in Ex parte Bakelite Corp., 279 U.S. 438, 460—461, 49 S.Ct. 411, 416—417, 73 L.Ed. 789,50 while that of the latter must be taken to have been adversely decided, so far as susceptibility to Supreme Court review is concerned, by In re Sanborn, 148 U.S. 222, 13 S.Ct. 577, 37 L.Ed. 429.51
112
At the outset we are not with a suggestion by the Solicitor General that even if the decisions called for by these heads of jurisdiction are nonjudicial, their compatibility with the status of an Article III court has been settled by O'Donoghue v. United States, 289 U.S. 516, 545—548, 53 S.Ct. 740, 748—749, 77 L.Ed. 1356. It is true that O'Donoghue upheld the authority of Congress to invest the federal courts for the District of Columbia with certain administrative responsibilities—such as that of revising the rates of public utilities52—but only such as were related to the government of the District. See Pitts v. Peak, 60 App.D.C. 195, 197, 50 F.2d 485, 487, cited and relied upon in O'Donoghue, 289 U.S., at 547—548, 53 S.Ct., at 749.53 To extend that holding to the wholly nationwide jurisdiction of courts whose seat is in the District of Columbia would be to ignore the special importance attached in the O'Donoghue opinion to the need there for an independent national judiciary.
113
The restraints of federalism are, of course, removed from the powers exercisable by Congress within the District. For, as the Court early stated, in Kendall v. United States ex rel. Stokes, 12 Pet. 524, 619, 9 L.Ed. 1181:
114
'There is in this district, no division of powers between the general and state governments. Congress has the entire control over the district for every purpose of government; and it is reasonable to suppose, that in organizing a judicial department here, all judicial power necessary for the purposes of government would be vested in the courts of justice.'
115
Thus those limitations implicit in the rubric 'case or controversy' that spring from the Framers' anxiety not to intrude unduly upon the general jurisdiction of state courts, see Madison's Notes of the Debates, in II Farrand, Records of the Federal Convention (1911), 45—46, need have no application in the District. The national courts here may, consistently with those limitations, perform any of the local functions elsewhere performed by state courts.54
116
But those are not the only limitations embodied in Article III's restriction of judicial power to cases or controversies. The restriction expresses as well the Framers' desire to safeguard the independence of the judicial from the other branches by confining its activities to 'cases of a Judiciary nature,' see II Farrand, op. cit., supra, at 430, and in this respect it remains fully applicable at least to courts invested with jurisdiction solely over matters of national import. Our question is whether the independence of either the Court of Claims or the Court of Customs and Patent Appeals has been so compromised by its investiture with the particular heads of jurisdiction described above as to destroy its eligibility for recognition as an Article III court.
117
The jurisdictional statutes in issue, § 337 of the Tariff Act of 1930 and 28 U.S.C. §§ 1492, 2509, 28 U.S.C.A. §§ 1492, 2509, appear to subject the decisions called for from those courts to an extrajudicial revisory authority incompatible with the limitations upon judicial power this Court has drawn from Article III. See, e.g., Chicago & Southern Air Lines, Inc., v. Waterman S.S. Corp., 333 U.S. 103, 113—114, 68 S.Ct. 431, 437—438, 92 L.Ed. 568; Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436. Whether they actually do so is not, however, entirely free from difficulty, and cannot in our view appropriately be decided in a vacuum, apart from the setting of particular cases in which we may gauge the operation of the statutes. For disposition of the present cases, we think it is sufficient simply to note the doubt attending the validity of the jurisdiction, and to proceed on the assumption that it cannot be entertained by an Article III court.
118
It does not follow, however, from the invalidity, actual or potential, of these heads of jurisdiction, that either the Court of Claims or the Court of Customs and Patent Appeals must relinquish entitlement to recognition as an Article III court. They are not tribunals, as are for example the Interstate Commerce Commission or the Federal Trade Commission, a substantial and integral part of whose business is nonjudicial.
119
The overwhelming majority of the Court of Claims' business is composed of cases and controversies. See 370 U.S., pp. 573—574, 82 S.Ct., pp. 1484, 1485, supra. In the past year, it heard only 10 reference cases, Annual Report of the Administrative Office of the United States Courts (1961), 318; and its recent annual average has not exceeded that figure, Pavenstedt, The United States Court of Claims as a Forum for Tax Cases, 15 Tax L.Rev. 1, 6 n. 23 (1959). The tariff jurisdiction of the Court of Customs and Patent Appeals is of even less significant dimensions. In the past fiscal year, that court disposed of 41 customs cases and 112 patent or trademark cases, but heard no appeals from the Tariff Commission. Annual Report of the Administrative Office of the United States Courts (1961), 318. Indeed we are advised that in all the years since 1922, when the predecessor to § 337 of the Tariff Act was first enacted, the Court of Customs and Patent Appeals has entertained only six such cases.55 Certainly the status of a District Court or Court of Appeals would not be altered by a mere congressional attempt to invest it with such insignificant nonjudicial business; it would be equally perverse to make the status of these courts turn upon so minuscule a portion of their purported functions.
120
The Congress that enacted the assignment statute with its accompanying declarations was apprised of the possibility that a re-examination of the Bakelite and Williams decisions might lead to disallowance of some of these courts' jurisdiction. See 99 Cong.Rec. 8944 (1953) (remarks of Senator Gore); 104 Cong.Rec. 17549 (1958) (remarks of Senator Talmadge.) Nevertheless it chose to pass the statute. We think with it that, if necessary, the particular offensive jurisdiction, and not the courts, would fall.
CONCLUSIONS.
121
Since the Court of Claims and the Court of Customs and Patent Appeals are courts created under Article III, their judges including retired judges, Booth v. United States, 291 U.S. 339, 350—351, 54 S.Ct. 379, 380—381, 78 L.Ed. 836—are and have been constitutionally protected in tenure and compensation. Our conclusion, it should be noted, is not an ex post facto resurrection of a banished independence. The judges of these two courts have never accepted the dependent status thrust at them by the Bakelite and Williams decisions. See, e.g., Judge Madden writing for the Court of Claims in Pope v. United States, 53 F.Supp. 570, 100 Ct.Cl. 375, rev'd, 323 U.S. 1, 65 S.Ct. 16, 89 L.Ed. 3. The factors set out at length in this opinion, which were not considered in the Bakelite and Williams opinions, make plain that the differing conclusion we now reach does no more than confer legal recognition upon an independence long exercised in fact.
122
That recognition suffices to dispose of the present cases. For it can hardly be contended that the specialized functions of these judges deprive them of capacity, as a matter of due process of law, to sit in judgment upon the staple business of the District Courts and Courts of Appeals. Whether they should be given such assignments may be and has been a proper subject for congressional debate, e.g., 62 Cong.Rec. 190—191, 207—209 (1921), but once legislatively resolved it can scarcely rise to the dignity of a constitutional question. To be sure, a judge of specialized experience may at first need to devote extra time and energy to familiarize himself with criminal, labor relations, or other cases beyond his accustomed ken. But to elevate this temporary disadvantage into a constitutional disability would be tantamount to suggesting that the President may never appoint to the bench a lawyer whose life's practice may have been devoted to patent, tax, antitrust, or any other specialized field of law in which many eminently well-qualified lawyers are wont to engage. The proposition will not, of course, survive its statement.
123
The judgments of the Courts of Appeals are affirmed.
124
Affirmed.
125
Mr. Justice FRANKFURTER took no part in the decision of this case.
126
Mr. Justice WHITE took no part in the consideration or decision of this case.
127
Mr. Justice CLARK, with whom THE CHIEF JUSTICE joins, concurring in the result.
128
I cannot agree to the unnecessary overruling of Ex parte Bakelite Corp., 279 U.S. 438, 49 S.Ct. 411, 73 L.Ed. 789 (1929), and Williams v. United States, 289 U.S. 553, 53 S.Ct. 751, 77 L.Ed. 1372 (1933). Both were unanimous opinions by most distinguished Courts,1 headed in the Bakelite case by Chief Justice Taft and in Williams by Chief Justice Hughes.
129
Long before Glidden v. Zdanok was filed, the Congress had declared the Court of Claims 'to be a court established under article III of the Constitution of the United States.' Act of July 28, 1953, § 1, 67 Stat. 226, 28 U.S.C.A. § 171. Not that this ipse dixit made the Court of Claims an Article III court, for it must be examined in light of the congressional power exercised and the jurisdiction enjoyed, together with the characteristics of its judges. But the 1953 Act did definitely establish the intent of the Congress, which prior to that time was not clear in light of the Williams holding 20 years earlier that it was not an Article III court.
130
It is my belief that prior to 1953 the Court of Claims had all of the characteristics of an Article III court—jurisdiction over justiciable matters, issuance of final judgments, judges appointed by the President with consent of the Senate—save as to the congressional reference matters. It was the fact that a substantial portion of its jurisdiction consisted of congressional references that compelled the decision in Williams that it was not an Article III court and therefore the salaries of its judges could be reduced.2 Since that time the Article III jurisdiction of the Court of Claims has been enlarged by including original jurisdiction under several Acts, e.g., suits against the United States for damages for unjust conviction, Act of May 24, 1938, §§ 1—4, 52 Stat. 438, 28 U.S.C. § 1495, 28 U.S.C.A. § 1495, and appellate jurisdiction over tort suits against the United States tried in the District Courts, Act of Aug. 2, 1946, § 412(a)(2), 60 Stat. 844, 28 U.S.C. § 1504, 28 U.S.C.A. § 1504, and over suits before the Indian Claims Commission, Act of May 24, 1949, § 89(a), 63 Stat. 102, 28 U.S.C. § 1505, 28 U.S.C.A. § 1505. In addition, the former jurisdiction over questions referred by the Executive branch was withdrawn in 1953. Act of July 28, 1953, § 8, 67 Stat. 226. The result is that practically all of the court's jurisdiction is now comprised of Article III cases. And I read the 1953 Act as unequivocally expressing Congress' intent that this court—the jurisdiction of which was then almost entirely over Article III cases—should be an Article III court, thereby irrevocably establishing life tenure and irreducible salaries for its judges.
131
It is true that Congress still makes legislative references to the court, averaging some 10 a year. The acceptance of jurisdiction of either executive or legislative references calling for advisory opinions has never been honored by Article III courts. Indeed, this Court since 1793 has consistently refused so to act. Correspondence of the Justices, 3 Johnston, Correspondence and Public Papers of John Jay (1891), 486—489. Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911). I do not construe the legislative history of the 1953 Act to be so clear as to require the Court of Claims to carry on this function, which appears to be minuscule. On the contrary, the congressional mandate clearly and definitely declared the court 'to be a court established under article III.' I would carry out that mandate. In my view the Court of Claims, if and when such a reference occurs, should with due deference advise the Congress, as this Court advised the President 169 years ago, that it cannot render advisory opinions.
132
Likewise I find that the Court of Customs and Patent Appeals has been an Article III court since 1958. It was created by the Congress in 1909 to exercise exclusive appellate jurisdiction over customs cases. Payne-Aldrich Tariff Act of Aug. 5, 1909, 36 Stat. 11, 105—108. At that time these cases were reviewed by Circuit Courts of Appeals—clearly of Article III status—36 Stat. 106, and they have since been considered on certiorari by this Court without suggestion that they were not 'cases' in the Article III sense. E.g., The Five Per Cent. Discount Cases, 243 U.S. 97, 37 S.Ct. 346, 61 L.Ed. 617 (1917).3 The Congress enlarged the jurisdiction of the Court of Customs and Patent Appeals in 1922 to include appeals on questions of law from Tariff Commission findings in proceedings relating to unfair practices in the import trade. Tariff Act of 1922, 42 Stat. 943, 944. In 1929 this Court in Bakelite, supra, which involved a tariff matter, found these references to be of an advisory nature and on this basis declared the Court of Customs and Patent Appeals to be a legislative rather than an Article III court. The Bakelite decision indicates that this Court was of the impression that the tariff jurisdiction of the Court of Customs and Patent Appeals would be significant. However, since that time that court has handled but four such references—and only one in the last 27 years. At about the same time that the Bakelite opinion came down, Congress transferred the appellate jurisdiction in patent and trademark cases from the Court of Appeals of the District of Columbia to the Court of Customs and Patent Appeals. Act of March 2, 1929, §§ 1, 2, 45 Stat. 1475. Thus, contrary to the apparent assumption in Bakelite, the business of that court now consists exclusively of Article III cases—with tariff references practically nonexistent (one in the last 27 years). In view of this evolution of its jurisdiction, I believe the court became an Article III court upon the clear manifestation of congressional intent that it be such. Act of Aug. 25, 1958, § 1, 72 Stat. 848, 28 U.S.C.A. § 211.
133
As I have indicated, supra, the handling of the tariff references—numbering only 6 in 40 years—is not an Article III court function. The Congress has declared the Court of Customs and Patent Appeals to be an Article III court. It should, therefore, if and when such a case arose, with due deference refuse to exercise such jurisdiction.4
134
I see nothing in the argument that the 1953 and 1958 Acts so changed the character of these courts as to require new presidential appointments. Congress was merely renouncing its power to terminate the functions or reduce the tenure or salary of the judges of the courts. Much more drastic changes have been made without reappointment.5 And there is no significance to the fact that Judge Jackson, who presided over the Lurk trial, was not in active status in 1958 when Congress declared his court to be an Article III court. He remained in office as a judge of that court even though retired, cf. Booth v. United States, 291 U.S. 339, 54 S.Ct. 379, 78 L.Ed. 836 (1934), and his judgeship was controlled by any act concerning the jurisdiction of that court or the status of its judges.
135
I would affirm.
136
Mr. Justice DOUGLAS with whom Mr. Justice BLACK concurs, dissenting.
137
The decision in these cases has nothing to do with the character, ability, or qualification of the individuals who sat on assignment on the Court of Appeals in No. 242 and on the District Court1 in No. 481. The problem is an impersonal one, concerning the differences between an Article I court and an Article III court. My Brother HARLAN calls it a problem of a 'highly theoretical nature.' Far from being 'theoretical' it is intensely practical, for it deals with powers of judges over the life and liberty of defendants in criminal cases and over vast property interests in complicated trials customarily involving the right to trial by jury.
138
Prior to today's decision the distinction between the two courts had been clear and unmistakable. By Art. I, § 8, Congress is given a wide range of powers, including the power 'to pay the Debts' of the United States and the power to 'lay and collect Taxes, Duties, Imposts and Excises.' By Art. I, § 8, Congress is also given the power 'To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.' Pursuant to the latter—the Necessary and Proper Clause the Court of Claims was created 'to pay the Debts';2 and the Court of Customs and Patent Appeals was created in furtherance of the collection of duties. My Brother HARLAN shows that the Court of Customs Appeals traces back to the Payne-Aldrich Tariff Act of August 5, 1909, which should be proof enough that it is an administrative court, performing essentially an executive task.3
139
In Williams v. United States, 289 U.S. 553, 53 S.Ct. 751, 77 L.Ed. 1372, the Court in a unanimous decision written by Mr. Justice Sutherland held that the Court of Claims, though exercising judicial power, was an Article I court. And in Ex parte Bakelite Corp., 279 U.S. 438, 49 S.Ct. 411, 73 L.Ed. 789, the Court in a unanimous opinion written by Mr. Justice Van Devanter held the Court of Customs Appeals to be an Article I court. Taft was Chief Justice when Ex parte Bakelite was decided. Hughes was Chief Justice when Williams v. United States was decided. I mention the two regimes that filed the unanimous opinions in those cases to indicate the vintage of the authority which decided them. Their decisions, of course, do not bind us, for they dealt with matters of constitutional interpretation which are always open. Yet no new history has been unearthed to show that the Taft and the Hughes Courts were wrong on the technical, but vitally important, question now presented.
140
Mr. Justice Van Devanter in Ex parte Bakelite marked the line between the Court of Claims and the Court of Customs and Patent Appeals on the one hand and the District Courts and Courts of Appeals on the other:
141
'Those established under the specific power given in section 2 of article 3 are called constitutional courts. They share in the exercise of the judicial power defined in that section, can be invested with no other jurisdiction, and have judges who hold office during good behavior, with no power in Congress to provide otherwise. On the other hand, those created by Congress in the exertion of other powers are called legislative courts. Their functions always are directed to the execution of one or more of such powers and are prescribed by Congress independently of section 2 of article 3; and their judges hold for such term as Congress prescribes, whether it be a fixed period of years or during good behavior.' Id., at 449, 49 S.Ct. at 412.
142
My Brother HARLAN emphasizes that both Judge Madden of the Court of Claims and Judge Jackson of the Court of Customs and Patent Appeals 'enjoy statutory assurance of tenure and compensation'; and so they do. But that statement reveals one basic difference between an Article III judge and an Article I judge. The latter's tenure is statutory and statutory only; Article I contains no guarantee that the judges of Article I courts have life appointments. Nor does it provide that their salaries may not be reduced during their term of office. On the other hand, the tenure of an Article III judge is during 'good behaviour'; moreover, Article III provides that its judges shall have a compensation that 'shall not be diminished during their Continuance in Office.' See O'Malley v. Woodrough, 307 U.S. 277, 59 S.Ct. 838, 83 L.Ed. 1289. To repeat, there is not a word in Article I giving its courts such protection in tenure or in salary. A constitutional amendment would be necessary to supply Article I judges with the guarantees of tenure and salary that Article III gives its judges. The majority attempts to evade this problem by looking to so-called 'Congressional intent' to find the creation of an Article III court. Congress, however, has always understood that it was only establishing Article I courts when it created the Court of Claims and the Court of Customs and Patent Appeals. The tenure it affixed to the judges of those tribunals was of necessity statutory only, as no mandate or requirement of Article I was involved.
143
The importance of these provisions to the independence of the judiciary needs no argument. Hamilton stated the entire case in The Federalist No. 79 (Lodge ed. 1908), pp. 491—493:
144
'Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, a power over a man's subsistence amounts to a power over his will. And we can never hope to see realized in practice, the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter. The enlightened friends to good government in every State, have seen cause to lament the want of precise and explicit precautions in the State constitutions on this head. Some of these indeed have declared that permanent salaries should be established for the judges; but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been evinced to be requisite. The plan of the convention accordingly has provided that the judges of the United States 'shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.'
145
'This, all circumstances considered, is the most eligible provision that could have been devised. It will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible. What might be extravagant to-day, might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. The clause which has been quoted combines both advantages. The salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him. * * *
146
'This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the States in regard to their own judges.
147
'The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges.'
148
We should say here what was said in United States ex rel. Toth v. Quarles, 350 U.S. 11, 17, 76 S.Ct. 1, 5, 100 L.Ed. 8:
149
'* * * the Constitution does not provide life tenure for those performing judicial functions in military trials. They are appointed by military commanders and may be removed at will. Nor does the Constitution protect their salaries as it does judicial salaries. Strides have been made toward making courts-martial less subject to the will of the executive department which appoints, supervises and ultimately controls them. But from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals.'
150
Tenure that is guaranteed by the Constitution is a badge of a judge of an Article III court. The argument that mere statutory tenure is sufficient for judges of Article III courts was authoritatively answered in Ex parte Bakelite Corp., supra, 279 U.S. at 459—460, 49 S.Ct. at 416:
151
'* * * the argument is fallacious. It mistakenly assumes that whether a court is of one class or the other depends on the intention of Congress, whereas the true test lies in the power under which the court was created and in the jurisdiction conferred. Nor has there been any settled practice on the part of Congress which gives special significance to the absence or presence of a provision respecting the tenure of judges. This may be illustrated by two citations. The same Congress that created the Court of Customs Appeals made provision for five additional circuit judges, and declared that they should hold their offices during good behavior; and yet the status of the judges was the same as it would have been had that declaration been omitted. In creating courts for some of the territories, Congress failed to include a provision fixing the tenure of the judges; but the courts became legislative courts just as if such a provision had been included.' (Italics added.)
152
Congress could make members of the Interstate Commerce Commission lifetime appointees. Yet I suppose no one would go so far as to say that a member of the Interstate Commerce Commission could be assigned to sit on the District Court or on the Court of Appeals. But if any agency member is disqualified, why is a member of another Article I tribunal, viz., the Court of Claims or the Court of Customs and Patent Appeals, qualified? No distinction can be drawn based on the functions performed by the Interstate Commerce Commission and those performed by the other two legislative tribunals. In each case some adjudicatory functions are performed.4 Though the judicial functions of the Interstate Commerce Commission are as distinct as those of the Court of Claims, they nevertheless derive from Article I; and they are functions that Congress can exercise directly or delegate to an agency. Williams v. United States, supra, 289 U.S. pp. 567—571, 53 S.Ct. at 755—756. To make the present decision turn on whether the Court of Claims and the Court of Customs and Patent Appeals perform 'judicial' functions is to adopt a false standard. The manner in which the majority reasons exposes the fallacy.
153
The majority says that once the United States consents to be sued all problems of 'justiciability' are satisfied; and that Congress has broad powers to convert 'moral' obligations into 'legal' ones enforceable by 'constitutional' courts. The truth is, I think, that the dimensions of Article III can be altered only by the amending process, not by legislation. Congress can create as respects certain claims a limited 'justiciability.' But if 'justiciability' in the 'constitutional' sense is involved, then there must be trial by jury assuming, as my Brother HARLAN does, that the claim is for recovery for torts or some other compensable injury. To repeat, it does not advance analysis by calling the function a 'judicial' one (see Pope v. United States, 323 U.S. 1, 12, 65 S.Ct. 16, 22, 89 L.Ed. 3), for both Article I courts and Article III courts perform functions of that character. The crucial question on this phase of the problems is the manner in which that judicial power is to be exercised.
154
As Mr. Justice Brandeis made clear in Tutun v. United States, 270 U.S. 568, 576—577, 46 S.Ct. 425, 426, 70 L.Ed. 738, an administrative remedy may be 'judicial.' The question here is different; it is whether the procedures utilized by the tribunal must comport with those set forth in the Bill of Rights and in the body of the Constitution. Yet who would maintain that in an administrative action for damages a jury trial was necessary?
155
Judges of the Article III courts work by standards and procedures which are either specified in the Bill of Rights or supplied by well-known historic precedents. Article III courts are law courts, equity courts, and admiralty courts5—all specifically named in Article III. They sit to determine 'cases' or 'controversies.' But Article I courts have no such restrictions. They need not be confined to 'cases' or 'controversies' but can dispense legislative largesse. See United States v. Alcea Band of Tillamooks, 329 U.S. 40, 67 S.Ct. 167, 91 L.Ed. 29; 341 U.S. 48, 71 S.Ct. 552, 95 L.Ed. 738. Their decisions may affect vital interests; yet like legislative bodies, zoning commissions, and other administrative bodies they need not observe the same standards of due process required in trials of Article III 'cases' or 'controversies.' See Bi-Metallic Inv. Co. v. State Board of Equalization of Colorado, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372. That is what Chief Justice Marshall meant when he said in American Ins. Co. v. Canter, 1 Pet. 511, 545—546, 7 L.Ed. 242 that an Article I court (in that case a territorial court) could make its adjudications without regard to the limitations of Article III. On the other hand, as the Court in O'Donoghue v. United States, supra, 289 U.S. at 546, 53 S.Ct. at 748, 77 L.Ed. 1356, observed, Article III courts could not be endowed with the administrative and legislative powers (or with the power to render advisory opinions) which Article I tribunals or agencies exercise.
156
In other words, the question, apart from the constitutional guarantee of tenure and the provision against diminution of salary, concerns the functions of the particular tribunal. Article III courts have prescribed for them constitutional standards some of which are in the Bill of Rights, while some (as for example those concerning bills of attainder and ex post facto laws) are in the body of the Constitution itself. Article I courts, on the other hand, are agencies of the legislative or executive branch. Thus while Article III courts of law must sit with a jury in suits where the value in controversy exceeds $20, the Court of Claims—an Article I court—is not so confined by the Seventh Amendment. The claims which it hears are claims with respect to which the Government has agreed to be sued. As the Court said in McElrath v. United States, 102 U.S. 426, 440, 26 L.Ed. 189, since the jurisdiction of the Court of Claims is permissive only, Congress can prescribe the rules and the procedures to be followed in pursuing claims against the Government. Likewise, the Court of Customs Appeals hears appeals that 'include nothing which inherently or necessarily requires judicial determination, but only matters the determination of which may be, and at times has been, committed exclusively to executive officers.' Ex parte Bakelite Corp., supra, 279 U.S. at 458, 49 S.Ct. at 416.
157
The judicial functions exercised by Article III courts cannot be performed by Congress nor delegated to agencies under its supervision and control.6 The bill of attainder is banned by Art. I, § 9. If there is to be punishment, courts (in the constitutional sense) must administer it. As we stated in United States v. Lovett, 328 U.S. 303, 317, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252:
158
'Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons, because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts.'
159
Moreover, when an Article III court of law acts, there is a precise procedure that must be followed:
160
'An accused in court must be tried by an impartial jury, has a right to be represented by counsel, he must be clearly informed of the charge against him, the law which he is charged with violating must have been passed before he committed the act charged, he must be confronted by the witnesses against him, he must not be compelled to incriminate himself, he cannot twice be put in jeopardy for the same offense, and even after conviction no cruel and unusual punishment can be inflicted upon him.' Id., 317—318, 66 S.Ct. at 1080.
161
On the civil side there is not only the right to trial by jury in suits at common law where the value in controversy exceeds $20 but there is also the mandate of the Seventh Amendment directing that 'no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.'
162
Neither of these limitations is germane to litigation in the Court of Claims or in the Court of Customs and Patent Appeals. Those courts, moreover, exercise no criminal jurisdiction, no admiralty jurisdiction, no equity jurisdiction.
163
As noted, the advisory opinion is beyond the capacity of Article III courts to render. Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246. Yet it is part and parcel of the function of legislative tribunals.7
164
Thus I cannot say, as some do, that the distinction between the two kinds of courts is a 'matter of language.'8 The majority over and again emphasizes the declaration by Congress that each of the courts in question is an Article III court. It seems that the majority tries to gain momentum for its decision from those congressional declarations. This Court, however, is the expositor of the meaning of the Constitution, as Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60, held; and a congressional enactment in the field of Article III is entitled to no greater weight than in other areas. The declarations by Congress that these legislative tribunals are Article III courts9 would be determinative only if Congress had the power to modify or alter the concepts that radiate throughout Article III and throughout those provisions of the Bill of Rights that specify how the judicial power granted by Article III shall be exercised.
165
An appointment is made by the President and confirmed by the Senate in light of the duties of the particular office. Men eminently qualified to sit on Article I tribunals or agencies are not picked or confirmed in light of their qualifications to preside at jury trials or to process on appeal the myriad of constitutional and procedural problems involved in Article III 'cases' or 'controversies.' A President who sent a name to the Senate for the Interstate Commerce Commission or Federal Trade Commission might never dream of entrusting the nominee with the powers of an Article III judge. The tasks are so different, the responsibilities and the qualifications so diverse that it is difficult for one who knows the federal system to see how in the world of practical affairs these offices are interchangeable.
166
In the Senate debate on the Court of Customs Appeals, Senator Cummins stated that the judges who were to man it were to become tariff 'experts' whose judicial business would be 'confined to the matter of the duties on imports.' 44 Cong.Rec. 4185. Senator McCumber, who spoke for the Committee, emphasized the technical nature of the work of those judges and the unique specialization of their work.
167
'The law governing the development of the human intellect is such that constant study of a particular question necessarily broadens and expands and intensifies and deepens the mind on that particular subject. Any man who has gone over even the cotton schedule will understand how delicate questions will arise; how complex those questions must necessarily be, and how necessary it will be to have judges who will possess technical knowledge upon that subject; and a technical knowledge can only be obtained by a constant daily study of those questions. For that second reason it was thought best to have a court whose whole attention, whose whole life work, should be given to that particular subject.' Id., at 4199.
168
Could there be any doubt that the late John J. Parker, rejected by the Senate for this Court, would have been confirmed for one of these Article I courts?
169
It is said that Congress could separate law and equity and create federal judges who, though Article III judges, sit entirely on the equity side. If Congress can do that, it is said that Congress can divide up all judicial power as it chooses and by making tenure permanent allow judges to be assigned from an Article I to an Article III court. The fact that Article III judicial power may be so divided as to produce judges with no experience in the trial of jury cases or in the review of them on appeal is no excuse for allowing legislative judges to be imported into the important fields that Article III preserves and that are partly safeguarded by the Bill of Rights and partly represented by ancient admiralty practice10 and equity procedures. Federal judges named to Article III courts are picked in light of the functions entrusted to them. No one knows whether a President would have appointed to an Article III court a man he named to an Article I court.
170
My view is that we subtly undermine the constitutional system when we treat federal judges as fungible. If members of the Court of Claims and of the Court of Customs and Patent Appeals can sit on life-and-death cases in Article III courts, so can a member of any administrative agency who has a statutory tenure that future judges sitting on this Court by some mysterious manner may change to constitutional tenure. With all deference, this seems to me to be a light-hearted treatment of Article III functions.11 Men of highest quality chosen as Article I judges might never pass muster for Article III courts when tested by their record of tolerance for minorities and for their respect of the Bill of Rights—neither of which is as crucial to the performance of the duties of those who sit in Article I courts as it is to the duties of Article III judges.
171
In sum, Judges who do not perform Article III functions, who do not enjoy constitutional tenure and whose salaries are not constitutionally protected against diminution during their term of office cannot be Article III judges.
172
Judges who perform 'judicial' functions on Article I courts do not adjudicate 'cases' or 'controversies' in the sense of Article III. They are not bound by the requirements of the Seventh Amendment concerning trial by jury.
173
Judges who sit on Article I courts are chosen for administrative or allied skills, not for their qualifications to sit in cases involving the vast interests of life, liberty, or property for whose protection the Bill of Rights and the other guarantees in the main body of the Constitution, including the ban on bills of attainder and ex post facto laws, were designed. Judges who might be confirmed for an Article I court might never pass muster for the onerous and life-or-death duties of Article III judges.
174
For these reasons I would reverse the judgments below.
1
Act of July 28, 1953, § 1, 67 Stat. 226, added to 28 U.S.C. § 171, 28 U.S.C.A. § 171 (Court of Claims); Act of August 25, 1958, § 1, 72 Stat. 848, added to 28 U.S.C. § 211, 28 U.S.C.A. § 211 (Court of Customs and Patent Appeals). See also Act of July 14, 1956, § 1, 70 Stat. 532, added to 28 U.S.C. § 251, 28 U.S.C.A. § 251 (Customs Court).
2
'The Chief Justice of the United States may designate and assign temporarily any judge of the Court of Claims or the Court of Customs and Patent Appeals * * * to perform judicial duties in any circuit, either in a court of appeals or district court, upon presentation of a certificate of necessity by the chief judge or circuit justice of the circuit wherein the need arises.'
3
28 U.S.C. § 294(d), 28 U.S.C.A. § 294(d) authorizes assignment of a retired judge from either court to 'perform such judicial duties as he is willing and able to undertake' in any circuit.
4
The petition in No. 481 sought certiorari only as to that issue.
5
10 Stat. 612 (1855), as amended, 28 U.S.C. § 173, 28 U.S.C.A. § 173 (Court of Claims); 46 Stat. 590, 762 (1930), as amended, 28 U.S.C. § 213, 28 U.S.C.A. § 213 (Court of Customs and Patent Appeals). Judge Madden was appointed in 1941, Brief for Petitioner in No. 242, pp. 7—8, and retired in 1961, 290 F.2d xvi; Judge Jackson was appointed in 1937, Brief for Petitioner in No. 481, pp. 9—10, and retired in 1952, 193 F.2d xv.
6
The bearing of § 2 of Art. III on petitioners' claims is discussed later. Infra, 370 U.S., pp. 562—583, 82 S.Ct., pp. 1479 1490.
7
The abstractness of the present controversy is graphically demonstrated by the disparity in volume between records and briefs. The records in both cases amount to but 66 pages of motions, opinions, and the like, with no relevant transcripts of proceedings, while the bries extend to 533 pages exclusive of appendices.
8
Under our limited writ of certiorari, 368 U.S. 814, 82 S.Ct. 56, 7 L.Ed.2d 22, we have no occasion to consider whether federal law was more appropriately the measure of the employer's obligation. Cf Teamsters Local 174, etc., v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593.
9
The debates and reports in Congress display no awareness of the problem. See H.R.Rep.No.1152, 67th Cong., 2d Sess. (1922); 62 Cong.Rec. 190—191, 207—209 (1921).
10
Article II, § 2, cl. 2 of the Constitution provides that the President
'* * * shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all others Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.'
11
Compare the statute creating the Emergency Court of Appeals, to consist of three or more judges 'designated by the Chief Justice of the United States from judges of the United States district courts and circuit courts of appeals.' Act of January 30, 1942, c. 26, § 204(c), 56 Stat. 23, 32, 50 U.S.C.A.Appendix, § 924(c).
12
Hearings on H.R. 1070 before Subcommittee No. 2 of the House Committee on the Judiciary, pp. 6—7, 24 (Unpublished, May 19, 1953; on file with the Clerk of the Committee) (testimony of Judge Howell of the Court of Claims); H.R.Rep.No.695, 83d Cong., 1st Sess. 2, 5—6 (1953); U.S.Code Cong. and Admin.News 1953, p. 2006; S.Rep.No.275, 83d Cong., 1st Sess. 2 (1953); H.R.Rep.No.2349, 85th Cong., 2d Sess. (1958); S.Rep.No.2309, 85th Cong., 2d Sess. (1958), U.S.Code Cong. and Admin.News 1958, p. 3909; 104 Cong.Rec. 16095 (1958) (remarks of Representative Keating).
13
Far from being 'incapable of receiving' federal-question jurisdiction, the territorial courts have long exercised a jurisdiction commensurate in this regard with that of the regular federal courts and have been subjected to the appellate jurisdiction of this Court precisely because they do so. Benner v. Porter, 9 How. 235, 243, 13 L.Ed. 119; Clinton v. Englebrecht, 13 Wall. 434, 447, 20 L.Ed. 659; Reynolds v. United States, 98 U.S. 145, 154, 25 L.Ed. 244; United States v. Coe, 155 U.S. 76, 86, 15 S.Ct. 16, 19, 39 L.Ed. 76; Balzac v. Porto Rico, 258 U.S. 298, 312 312, 42 S.Ct. 343, 348, 66 L.Ed. 627; International Longshoremen's & etc., Union v. Juneau Spruce Corp., 342 U.S. 237, 240—241, 72 S.Ct. 235, 237, 238, 96 L.Ed. 275; cf. Martin v. Hunter's Lessee, 1 Wheat. 304, 338, 4 L.Ed. 97; see Pope v. United States, 323 U.S. 1, 13—14, 65 S.Ct. 16, 23, 89 L.Ed. 3.
14
Under Barber v. Barber, 21 How. 582, 584, 16 L.Ed. 226, for example, the federal courts in the States were incompetent to render divorces; but in the territories, where the legislative power of the United States of necessity extended to all such local matters, the territorial courts took cognizance of them. Simms v. Simms, 175 U.S. 162, 167—168, 20 S.Ct. 58, 60, 44 L.Ed. 115; De la Rama v. De la Rama, 201 U.S. 303, 26 S.Ct. 485, 50 L.Ed. 765.
15
Benner v. Porter, 9 How. 235, 240, 244, 13 L.Ed. 119. For statutory techniques since developed to avoid the interregnal problems involved in that case, see Metlakatla Indian Community etc., v. Egan, 363 U.S. 555, 557—559, 80 S.Ct. 1321, 1322, 1323, 4 L.Ed.2d 1397; 1 Moore, Federal Practice (2d ed. 1961), 32—34.
16
See Clinton v. Englebrecht, 13 Wall. 434, 441—445, 20 L.Ed. 659; Hornbuckle v. Toombs, 18 Wall. 648, 655—656, 21 L.Ed. 966.
17
Compare Clinton v. Englebrecht, supra, 13 Wall., at 446, 447, with Dreyer v. Illinois, 187 U.S. 71, 83—84, 23 S.Ct. 28, 32, 47 L.Ed. 79.
18
See generally, as to each of these courts, 1 Moore, Federal Practice (2d ed. 1961), 40—44, 47—50.
19
We do not now decide, of course, whether the same conditions still obtain in each of the present-day territories or whether, even if they do, Congress might not choose to establish an Article III court in one or more of them.
20
Ex parte Bakelite Corp., 279 U.S. 438, 453, 458, 49 S.Ct. 411, 414, 416, 73 L.Ed. 789; accord, Williams v. United States, 289 U.S. 553, 579, 53 S.Ct. 751, 759, 77 L.Ed. 1372.
21
Williams itself recognized that the jurisdiction conferred on the Court of Claims by the Tucker Act, now 28 U.S.C. § 1491, 28 U.S.C.A. § 1491, to award just compensation for a governmental taking, empowered that court to decide what had previously been described as a judicial and not a legislative question. 289 U.S., at 581, 53 S.Ct. at 760; see, e.g., Monongahela Navigation Co. v. United States, 148 U.S. 312, 327, 13 S.Ct. 622, 626, 37 L.Ed. 463. As for Bakelite, its reliance, 279 U.S., at 458 n. 26, 49 S.Ct. at 416, on Cary v. Curtis, 3 How. 236, 11 L.Ed. 576, for the proposition that disputes over customs duties may be adjudged summarily without recourse to judicial proceedings, appears to have overlooked the care with which that decision specifically declined to rule whether all right of action might be taken away from a protestant, even going so far as to suggest several judicial remedies that might have been available. See 3 How., at 250.
22
279 U.S., at 451 note 8, 49 S.Ct. at 413; 289 U.S., at 579, 53 S.Ct. at 759.
23
18 How., at 284.
24
But see note 21, supra.
25
See generally Hart and Wechsler, The Federal Courts and the Federal System (1953), 312—340, and more specifically, 370 U.S., pp. 567—568, 82 S.Ct., pp. 1481—1482, infra.
26
§ 3, 12 Stat. 765, now 28 U.S.C. § 1503, 28 U.S.C.A. § 1503. See also 18 Stat. 481 (1875), as amended, 31 U.S.C. § 227, 31 U.S.C.A. § 227, requiring the Comptroller General to bring suit against a nonconsenting judgment creditor if that official believes a debt not previously asserted as a set-off is due the United States.
27
22 Wall., at 648.
28
Evans v. Gore, 253 U.S. 245, 248—254, 40 S.Ct. 550, 551, 553.
29
Under the Legislative Appropriation Act of June 30, 1932, c. 314, 47 Stat. 382—the statute under which the Williams and O'Donoghue cases arose—the judges of the Court of Customs and Patent Appeals accepted a reduction in salary from $12,500 to $10,000. That court had not, however, been specified for reduction by Congress; the action of the judges was understandable coming as it did after Bakelite had been decided; and under § 109 of the Act, 47 Stat. 403, the Treasury was authorized to accept reductions in payment voluntarily tendered by judges whose salary was constitutionally exempt from diminution.
30
36 Stat. 106. Provision was made for the transfer of pending cases and of appeals from final decisions in and of the Circuit Courts and Courts of Appeals. 36 Stat. 106, 107. The very first case heard by the Court of Customs Appeals was an appeal from the Circuit Court for the Southern District of New York in Hansen v. United States, 1 Ct.Cust.App. 1; it also took jurisdiction of a case transferred from the Court of Appeals for the Ninth Circuit in United States v. Seattle Brewing & Malting Co., 1 Ct.Cust.App. 362.
*
Now 28 U.S.C.A. §§ 213, 371, 372.
31
Its functions were continued under the Defense Production Act of 1950, c. 932, § 408, 64 Stat. 798, 808, 50 U.S.C.A.Appendix, § 2108, to determine the validity of price and wage stabilization orders issued under that Act. On April 18, 1962, after denial of certiorari in the last case on its docket, Rosenzweig v. Boutin, 369 U.S. 818, 82 S.Ct. 830, the court terminated its existence. 299 F.2d 1—21.
32
As there was, for example, in suits between States and by the United States against a State. Rhode Island v. Massachusetts, 12 Pet. 657, 720, 9 L.Ed. 1233; United States v. Texas, 143 U.S. 621, 639—646, 12 S.Ct. 488, 491—493, 36 L.Ed. 285.
33
Pocono Pines Assembly Hotels Co. v. United States, 73 Ct.Cl. 447, leave to file petition for writ of mandamus or prohibition denied, 285 U.S. 526, 52 S.Ct. 392, 76 L.Ed. 923, in which the Congress 'remanded' a final and unappealed decision against the United States to the Court of Claims for new findings, does not detract from the authority of Klein. Without examining anything else, it is enough to note that the considerations governing a grant or denial of a petition for mandamus are, like those controlling the issuance of a writ of certiorari, so discretionary with the Court as to deprive a denial of precedential effect on this score. Compare Sup.Ct. Rule 30 with Rule 19(1), (2), 28 U.S.C.A., and cf. Brown v. Allen, 344 U.S. 443, 488, 491—492, 73 S.Ct. 397, 431, 438, 439, 97 L.Ed. 469 (opinion of FRANKFURTER, J.).
34
'No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law * * *.'
35
See also the intervening opinions and dispositions: 209 U.S. 514, 28 S.Ct. 614, 52 L.Ed. 914; 220 U.S. 1, 36, 31 S.Ct. 330, 336, 55 L.Ed. 353; 222 U.S. 17, 19—20, 32 S.Ct. 4, 5—6, 56 L.Ed. 71; 231 U.S. 89, 34 S.Ct. 29, 58 L.Ed. 135; 234 U.S. 117, 34 S.Ct. 889, 58 L.Ed. 1243; 238 U.S. 202, 35 S.Ct. 795, 59 L.Ed. 1272; 241 U.S. 531, 36 S.Ct. 719, 60 L.Ed. 1147.
36
The provision in 28 U.S.C. § 2503, 28 U.S.C.A. § 2503, for Commissioners to take evidence and make preliminary rulings is conformable in all respects with the practice of masters in chancery. For the judicial quality of the proceedings, see the Revised Rules of the Court of Claims, effective December 2, 1957, 140 Ct.Cl. II, 28 U.S.C. App., p. 5237, as amended, id. (Supp. III), p. 863, 28 U.S.C.A.
37
In 1950, Tucker Act cases constituted 2,350 of the 2,472 proceedings conducted by the court. Wilkinson, The United States Court of Claims, 36 A.B.A.J. 89, 159 (1950). The percentage may well have been augmented since that time by the extension of Tucker Act jurisdiction to Indian claims accruing after August 13, 1946. 28 U.S.C. § 1505, 28 U.S.C.A. § 1505, added by 63 Stat. 102 (1949).
38
28 U.S.C. § 1494, 28 U.S.C.A. § 1494 (contractor or their sureties); 28 U.S.C. §§ 1496, 2512, 28 U.S.C.A. §§ 1496, 2512 (disbursing officers).
39
R.S. § 5261 (1878), as amended, 45 U.S.C. § 87, 45 U.S.C.A. § 87 (governmentaided railroads).
40
28 U.S.C. § 1499, 28 U.S.C.A. § 1499 (violations of the Eight-Hour Law, 37 Stat. 137 (1912), as amended, 40 U.S.C. § 324, 40 U.S.C.A. § 324).
41
28 U.S.C. (Supp. III) § 1498, 28 U.S.C.A. § 1498.
42
28 U.S.C. §§ 1495, 2513, 28 U.S.C.A. §§ 1495, 2513 (wrongful imprisonment); 28 U.S.C. § 1497, 28 U.S.C.A. § 1497 (trespass to oyster beds).
43
60 Stat. 1049, 1054 (1946), 25 U.S.C. § 70s, 25 U.S.C.A. § 70s.
44
42 Stat. 15 (1921), as amended, 19 U.S.C. § 169, 19 U.S.C.A. § 169, makes 28 U.S.C. § 1541, 28 U.S.C.A. § 1541 applicable as well to the antidumping statute. See also 46 Stat. 735 (1930), as amended, 19 U.S.C. § 1516(b), (c), 19 U.S.C.A. § 1516(b, c), permitting classification or valuation cases to be initiated by protest from a competing domestic manufacturer, after which the importer's consignee may be made a party to suit in the Customs Court, with appeal to the Court of Customs and Patent Appeals.
45
Curiously, Duell was not cited in Postum, while the cases that were—Frasch v. Moore, 211 U.S. 1, 29 S.Ct. 6, 53 L.Ed. 65; Atkins & Co. v. Moore, 212 U.S. 285, 29 S.Ct. 390, 53 L.Ed. 515; Baldwin Co. v. Howard Co., 256 U.S. 35, 41 S.Ct. 405, 65 L.Ed. 816 had, as the Court recognized, held only that the statutory scheme of review did not produce a 'final judgment' as required by the statute then governing appeals to the Court.
46
See Stern and Gressman, Supreme Court Practice (1950), 44 46. But see Hobart Mfg. Co. v. Landers, Frary & Clark, 26 F.Supp. 198, 202, aff'd per curiam, 2 Cir., 107 F.2d 1016; Battery Patents Corp. v. Chicago Cycle Supply Co., 7 Cir., 111 F.2d 861, 863; Reviser's Note, 35 U.S.C. § 144, 35 U.S.C.A. § 144.
47
Naturalization Act of June 29, 1906, c. 3592, § 15, 34 Stat. 596, 601.
48
For later developments, see Schneiderman v. United States, 320 U.S. 118, 123—125, 63 S.Ct. 1333, 1335—1337, 87 L.Ed. 1796; Knauer v. United States, 328 U.S. 654, 671—673, 66 S.Ct. 1304, 1313—1314, 90 L.Ed. 1500; Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120.
49
We intimate no opinion whether 28 U.S.C. § 1256, 28 U.S.C.A. § 1256 was intended by Congress to make patent and trademark cases reviewable by certiorari in this Court. See Kurland and Wolfson, Supreme Court Review of the Court of Customs and Patent Appeals, 18 G.W.L.Rev. 192, 194—198 (1950).
50
Section 316(c) of the Tariff Act of 1922, c. 356, 42 Stat. 858, 943, involved in Bakelite, was reenacted in virtually identical terms by § 337(c) of the Tariff Act of 1930, 46 Stat. 590, 703, as amended, 19 U.S.C. § 1337(c), 19 U.S.C.A. § 1337(c).
51
Sanborn involved the departmental reference jurisdiction of the Court of Claims, since repealed by 67 Stat. 226 (1953); but the functions performed by the court in that case were not in substance different from those it still performs on request by Congress.
52
See Keller v. Potomac Electric Power Co., 261 U.S. 428, 43 S.Ct. 445, 67 L.Ed. 731.
53
Federal Radio Comm'n v. General Electric Co., 281 U.S. 464, 50 S.Ct. 389, 74 L.Ed. 969, which sustained the authority of the Court of Appeals for the District of Columbia to render an 'administrative' decision respecting the issuance of a radio broadcasting license to a station in Schenectady, New York, was decided at a time when the courts of the District were regarded wholly as legislative courts. Id., at 468, 50 S.Ct., at 390.
It is significant that all of the jurisdiction at issue in the Keller, Postum, and General Electric cases has long since been transformed into judicial business. The change with respect to review of Patent Office decisions took place, as we have seen, 370 U.S., p. 577, 82 S.Ct., p. 1487, supra, before the transfer of that jurisdiction to the Court of Customs and Patent Appeals. Review of the Public Utilities Commission was restricted to questions of law upon the evidence before the Commission, in the Act of August 27, 1935, § 2, 49 Stat. 882, D.C.Code, 1961, § 43 705. See Public Utilities Comm'n v. Pollak, 343 U.S. 451, 458, 72 S.Ct. 813, 818, 96 L.Ed. 1068. And the Act of July 1, 1930, c. 788, 46 Stat. 844, likewise made review of the Radio Commission judicial, as was recognized in Federal Radio Comm'n v. Nelson Bros., etc., Co., 289 U.S. 266, 274—278, 53 S.Ct 627, 632—633, 77 L.Ed. 1166.
54
The D.C.Code, 1961, Tit. 11, c. 5, establishes a special term of the United States District Court as a probate court, whereas the other Federal District Courts have been debarred from exercising such a jurisdiction as one traditionally within the domain of the States. Byers v. McAuley, 149 U.S. 608, 619, 13 S.Ct. 906, 910, 37 L.Ed. 867. Similarly, the divorce proceedings maintainable under the general jurisdictional grant, D.C.Code, § 11—306; see Bottomley v. Bottomley, 104 U.S.App.D.C. 311, 262 F.2d 23, are beyond the ken of the federal courts in the States. Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383, 50 S.Ct. 154, 155, 74 L.Ed. 489.
The appointing authority given judges of the District Court to select members of the Board of Education and of the Commission on Mental Health, D.C.Code, §§ 31—101, 21—308, is probably traceable to Art. II, § 2 of the Constitution. See note 10, supra; Ex parte Siebold, 100 U.S. 371, 397—398, 25 L.Ed. 717.
55
Brief on behalf of the chief judge and the associate judges of the United States Court of Customs and Patent Appeals as amici curiae, p. 10.
1
Bakelite: Taft, Holmes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Sanford and Stone, Williams: Hughes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Stone, Roberts and Cardozo.
2
"From the outset Congress has required it (the Court of Claims) to give merely advisory decisions on many matters. Under the act creating it all of its decisions were to be of that nature. Afterwards some were to have effect as binding judgments, but others were still to be merely advisory. This is true at the present time." Williams v. United States, supra, 289 U.S. at 569, 53 S.Ct. at 756 (quoting from Ex parte Bakelite).
'Further reflection tends only to confirm the views expressed in the Bakelite opinion * * * and we feel bound to reaffirm and apply them. And, giving these views due effect here, we see no escape from the conclusion that, if the Court of Customs Appeals is a legislative court, so also is the Court of Claims.' Williams, at 571, 53 S.Ct. at 757. The Bakelite decision was posited squarely on the legislative reference function. See Ex parte Bakelite, supra, 279 U.S. 454—458, 49 S.Ct. 414—416.
3
That its original jurisdiction was in 'cases' in the Article III, § 2, sense cannot be questioned. See In re Frischer & Co., 16 Ct.Cust.App. 191, 198 (1928); Osborn v. Bank of U.S., 9 Wheat. 738, 819, 6 L.Ed. 204 (1824); Interstate Commerce Commission v. Brimson, 154 U.S. 447, 487, 14 S.Ct. 1125, 1137, 38 L.Ed. 1047 (1894); Tutun v. United States, 270 U.S. 568, 576—577, 46 S.Ct. 425, 426—427, 70 L.Ed. 738 (1926).
4
The validity of Judge Jackson's participation, as the Government points out, might also be sustained under the Act of September 14, 1922, c. 306, § 5, 42 Stat. 837, 839, which provided for the assignment of judges of the Court of Customs Appeals to the courts of the District of Columbia. This Act was on the books when Judge Jackson took his seat on the Court of Customs and Patent Appeals as well as when the Lurk case was tried.
5
Nor does my holding carry any implication that judgments entered prior to the date of these Acts in which judges of these courts participated might be collaterally attacked. Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 (1899).
1
The District Court of the District of Columbia, like the 'inferior courts' established by Congress under Art. III, § 1, of the Constitution, is an Article III court (O'Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356), even though it possesses powers that Article III courts could not exercise. Congress, acting under its plenary power granted by Art. I, § 8, to legislate for the District of Columbia, has from time to time vested in the courts of the District administrative and even legislative powers. See, e.g., Keller v. Potomac Electric Co., 261 U.S. 428, 440—443, 43 S.Ct. 445, 447—448, 67 L.Ed. 731 (review of rate making); Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693, 698—701, 47 S.Ct. 284, 285—286, 71 L.Ed. 478 (patent and trademark appeals); Federal Radio Comm. v. General Electric Co., 281 U.S. 464, 467—468, 50 S.Ct. 389, 390, 74 L.Ed. 969 (review of radio station licensing; cf. Federal Radio Comm. v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 274—278, 53 S.Ct. 627, 631—633, 77 L.Ed. 1166). Congress has also authorized District Court judges to appoint members of the Board of Education. D.C.Code, § 31—101.
In O'Donoghue v. United States, supra, 289 U.S. at 545, 53 S.Ct. at 748, the Court said:
'The fact that Congress, under another and plenary grant of power, has conferred upon these courts jurisdiction over nonfederal causes of action, or over quasi judicial or administrative matters, does not affect the question. In dealing with the District, Congress possesses the powers which belong to it in respect of territory within a state, and also the powers of a state.'
The eighteenth-century courts in this country performed many administrative functions. See Pound, Organization of Courts (1940), pp. 88—89. The propriety of the union of legislative and judicial powers in a state court was assumed in Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150.
2
'Legislative courts also may be created as special tribunals to examine and determine various matters, arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it. The mode of determining matters of this class is completely within congressional control. Congress may reserve to itself the power to decide, may delegate that power to executive officers, or may commit it to judicial tribunals.
'Conspicuous among such matters are claims against the United States. These may arise in many ways and may be for money, lands, or other things. They all admit of legislative or executive determination, and yet from their nature are susceptible of determination by courts; but no court can have cognizance of them except as Congress makes specific provision therefor. Nor do claimants have any right to sue on them unless Congress consents; and Congress may attach to its consent such conditions as it deems proper, even to requiring that the suits be brought in a legislative court specially created to consider them.
The Court of Claims is such a court. It was created, and has been maintained, as a special tribunal to examine and determine claims for money against the United States. This is a function which belongs primarily to Congress as an incident of its power to pay the debts of the United States. But the function is one which Congress has a discretion either to exercise directly or to delegate to other agencies.' Ex parte Bakelite Corp., 279 U.S. 438, 451—452, 49 S.Ct. 411, 413, 73 L.Ed. 789.
3
'The Court of Customs Appeals was created by Congress in virtue of its power to lay and collect duties on imports and to adopt any appropriate means of carrying that power into execution. The full province of the court under the act creating it is that of determining matters arising between the government and others in the executive administration and application of the customs laws. These matters are brought before it by appeals from decisions of the Customs Court, formerly called the Board of General Appraisers. The appeals include nothing which inherently or necessarily requires judicial determination, but only matters the determination of which may be, and at times has been, committed exclusively to executive officers. True, the provisions of the customs laws requiring duties to be paid and turned into the treasury promptly, without awaiting disposal of protests against rulings of appraisers and collectors, operate in many instances to convert the protests into applications to refund part or all of the money paid; but this does not make the matters involved in the protests any the less susceptible of determination by executive officers. In fact, their final determination has been at times confided to the Secretary of the Treasury, with no recourse to judicial proceedings.' Ex parte Bakelite Corp., supra, note 2, at 458, 49 S.Ct. at 416.
4
The Interstate Commerce Commission has long entered reparation orders directing carriers to pay shippers specified sums of money plus interest for excessive and unreasonable rates. See Meeker v. Lehigh Valley R. Co., 236 U.S. 434, 35 S.Ct. 337, 59 L.Ed. 659; II Sharfman, The Interstate Commerce Commission (1931), pp. 387—388.
5
As respects admiralty, Chief Justice Marshall said in American Ins. Co. v. Canter, 1 Pet. 511, 545, 7 L.Ed. 242:
'If we have recourse to that pure fountain from which all the jurisdiction of the Federal Courts is derived, we find language employed which cannot well be misunderstood. The Constitution declares, that 'the judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, or other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction.'
'The Constitution certainly contemplates these as three distinct classes of cases * * *.'
6
The limitations on Article III courts that distinguish them from Article I courts were stated by Chief Justice Vinson in National Mut. Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 629—630, 69 S.Ct. 1173, 1201, 93 L.Ed. 1556, in words that have, I think, general acceptance, though on the precise issue he wrote in dissent:
'In Keller v. Potomac Electric Power Co., 1923, 261 U.S. 428, 43 S.Ct. 445, 67 L.Ed. 731, where this Court had before it an Act under which the courts of the District of Columbia were given revisory power over rates set by the Public Utilities Commission of the District, the appellee sought to sustain the appellate jurisdiction given this Court by the Act on the basis that 'Although Art. III of the Constitution limits the jurisdiction of the federal courts, this limitation is subject to the power of Congress to enlarge the jurisdiction, where such enlargement may reasonably be required to enable Congress to exercise the express powers conferred upon it by the Constitution.' 261 U.S. at page 435, 43 S.Ct. 445, 67 L.Ed. 731. There, as here, the power relied upon was that given Congress to exercise exclusive jurisdiction over the District of Columbia, and to make all laws necessary and proper to carry such powers into effect. But this Court clearly and unequivocally rejected the contention that Congress could thus extend the jurisdiction of constitutional courts, citing the note to Hayburn's Case, 1792, 2 Dall. 409, 410, 1 L.Ed. 436; United States v. Ferreira, 1851, 13 How. 40, note 52, 14 L.Ed. 42 and Gordon v. United States, 1864, 117 U.S. 697. These and other decisions of this Court clearly condition the power of a constitutional court to take cognizance of any cause upon the existence of a suit instituted according to the regular course of judicial procedure, Marbury v. Madison, 1803, 1 Cranch 137, 2 L.Ed. 60, the power to pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision, Muskrat v. United States, 1910, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246; Gordon v. United States, supra, the absence of revisory or appellate power in any other branch of Government, Hayburn's Case, supra; United States v. Ferreira, supra, and the absence of administrative or legislative issues or controversies, Keller v. Potomac Electric Power Co., supra; Postum Cereal Co. v. California Fig Nut Co., 1927, 272 U.S. 693, 47 S.Ct. 284, 71 L.Ed. 478.'
7
See 28 U.S.C. § 1492, 28 U.S.C.A. § 1492, giving the Court of Claims power 'to report to either House of Congress on any bill referred to the court by such House.' And see 28 U.S.C. §§ 2509, 2510, 28 U.S.C.A. §§ 2509, 2510. 28 U.S.C. § 1542, 28 U.S.C.A. § 1542, gave the Court of Customs and Patent Appeals a kind of administrative review over certain decisions of the patent office. And see note 2, supra.
8
See H.R.Rep.No.2348, 84th Cong., 2d Sess., p. 3, U.S. Code Congressional and Administrative Service, 1956, p. 3122.
9
See Act of July 28, 1953, 67 Stat. 226, 28 U.S.C.A. § 171 (Court of Claims); Act of July 14, 1956, 70 Stat. 532, 28 U.S.C.A. § 251 (Customs Court); Act of August 25, 1958, 72 Stat. 848, 28 U.S.C.A. § 211 (Court of Customs and Patent Appeals).
10
See The Lottawanna, 21 Wall. 558, 575, 22 L.Ed. 654; The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760.
11
The Court does great mischief in today's opinions. The opinion of my Brother HARLAN stirs a host of problems that need not be opened. What is done will, I fear, plague us for years.
First, that opinion cites with approval Ex parte McCardle, 7 Wall. 506, 19 L.Ed. 264, in which Congress withdrew jurisdiction of this Court to review a habeas corpus case that was sub judice, and then apparently draws a distinction between that case and United States v. Klein, 13 Wall. 128, 20 L.Ed. 519, where such withdrawal was not permitted in a property claim. There is a serious question whether the McCardle case could command a majority view today. Certainly the distinction between liberty and property (which emanates from this portion of my Brother HARLAN'S opinion) has no vitality even in terms of the Due Process Clause.
Second, Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693, 47 S.Ct. 284, 71 L.Ed. 478, is apparently overruled. Why this is done is not apparent. That case ruled on the question whether a ruling on a Patent Office determination was 'judicial.' Whether it was or not is immaterial because, as already noted, Article I courts, like Article III courts, exercise 'judicial' power. The only relevant question here is whether a court that need not follow Article III procedures is nonetheless an Article III court.
Third, it is implied that Congress could vest the lower federal courts with the power to render advisory opinions. The character of the District Court in the District of Columbia has been differentiated from the other District Courts by O'Donoghue v. United States, supra, in that the former is, in part, an agency of Congress to perform Article I powers. How Congress could transform regular Article III courts into Article I courts is a mystery. Certainly we should not decide such an important issue so casually and so unnecessarily.
| 89
|
370 U.S. 660
82 S.Ct. 1417
8 L.Ed.2d 758
Lawrence ROBINSON, Appellant,v.STATE OF CALIFORNIA.
No. 554.
Argued April 17, 1962.
Decided June 25, 1962.
S. Carter McMorris, Los Angeles, Cal., for appellant.
William E. Doran, Los Angeles, Cal., for appellee.
Mr. Justice STEWART delivered the opinion of the Court.
1
A California statute makes it a criminal offense for a person to 'be addicted to the use of narcotics.'1 This appeal draws into question the constitutionality of that provision of the state law, as construed by the California courts in the present case.
2
The appellant was convicted after a jury trial in the Municipal Court of Los Angeles. The evidence against him was given by two Los Angeles police officers. Officer Brown testified that he had had occasion to examine the appellant's arms one evening on a street in Los Angeles some four months before the trial.2 The officer testified that at that time he had observed 'scar tissue and discoloration on the inside' of the appellant's right arm, and 'what appeared to be numerous needle marks and a scab which was approximately three inches below the crook of the elbow' on the appellant's left arm. The officer also testified that the appellant under questioning had admitted to the occasional use of narcotics.
3
Officer Lindquist testified that he had examined the appellant the follow morning in the Central Jail in Los Angeles. The officer stated that at that time he had observed discolorations and scabs on the appellant's arms, and he identified photographs which had been taken of the appellant's arms shortly after his arrest the night before. Based upon more than ten years of experience as a member of the Narcotic Division of the Los Angeles Police Department, the witness gave his opinion that 'these marks and the discoloration were the result of the injection of hypodermic needles into the tissue into the vein that was not sterile.' He stated that the scabs were several days old at the time of his examination, and that the appellant was neither under the influence of narcotics nor suffering withdrawal symptoms at the time he saw him. This witness also testified that the appellant had admitted using narcotics in the past.
4
The appellant testified in his own behalf, denying the alleged conversations with the police officers and denying that he had ever used narcotics or been addicted to their use. He explained the marks on his arms as resulting from an allergic condition contracted during his military service. His testimony was corroborated by two witnesses.
5
The trial judge instructed the jury that the statute made it a misdemeanor for a person 'either to use narcotics, or to be addicted to the use of narcotics * * *.3 That portion of the statute referring to the 'use' of narcotics is based upon the 'act' of using. That portion of the statute referring to 'addicted to the use' of narcotics is based upon a condition or status. They are not identical. * * * To be addicted to the use of narcotics is said to be a status or condition and not an act. It is a continuing offense and differs from most other offenses in the fact that (it) is chronic rather than acute; that it continues after it is complete and subjects the offender to arrest at any time before he reforms. The existence of such a chronic condition may be ascertained from a single examination, if the characteristic reactions of that condition be found present.'
6
The judge further instructed the jury that the appellant could be convicted under a general verdict if the jury agreed either that he was of the 'status' or had committed the 'act' denounced by the statute.4 'All that the People must show is either that the defendant did use a narcotic in Los Angeles County, or that while in the City of Los Angeles he was addicted to the use of narcotics * * *.'5
7
Under these instructions the jury returned a verdict finding the appellant 'guilty of the offense charged.' An appeal was taken to the Appellate Department of the Los Angeles County Superior Court, 'the highest court of a State in which a decision could be had' in this case. 28 U.S.C. § 1257, 28 U.S.C.A. § 1257. See Smith v. California, 361 U.S. 147, 149, 80 S.Ct. 215, 216, 4 L.Ed.2d 205; Edwards v. California, 314 U.S. 160, 171, 62 S.Ct. 164, 165, 86 L.Ed. 119. Although expressing some doubt as to the constitutionality of 'the crime of being a narcotic addict,' the reviewing court in an unreported opinion affirmed the judgment of conviction, citing two of its own previous unreported decisions which had upheld the constitutionality of the statute.6 We noted probable jurisdiction of this appeal, 368 U.S. 918, 82 S.Ct. 244, 7 L.Ed.2d 133, because it squarely presents the issue whether the statute as construed by the California courts in this case is repugnant to the Fourteenth Amendment of the Constitution.
8
The broad power of a State to regulate the narcotic drugs traffic within its borders is not here in issue. More than forty years ago, in Whipple v. Martinson, 256 U.S. 41, 41 S.Ct. 425, 65 L.Ed. 819, this Court explicitly recognized the validity of that power: 'There can be no question of the authority of the state in the exercise of its police power to regulate the administration, sale, prescription and use of dangerous and habitforming drugs * * *. The right to exercise this power is so manifest in the interest of the public health and welfare, that it is unnecessary to enter upon a discussion of it beyond saying that it is too firmly established to be successfully called in question.' 256 U.S. at 45, 41 S.Ct. at 426.
9
Such regulation, it can be assumed, could take a veriety of valid forms. A State might impose criminal sanctions, for example, against the unauthorized manufacture, prescription, sale, purchase, or possession of narcotics within its borders. In the interest of discouraging the violation of such laws, or in the interest of the general health or welfare of its inhabitants, a State might establish a program of compulsory treatment for those addicted to narcotics.7 Such a program of treatment might require periods of involuntary confinement. And penal sanctions might be imposed for failure to comply with established compulsory treatment procedures. Cf. Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643. Or a State might choose to attack the evils of narcotics traffic on broader fronts also—through public health education, for example, or by efforts to ameliorate the economic and social conditions under which those evils might be thought to flourish. In short, the range of valid choice which a State might make in this area is undoubtedly a wide one, and the wisdom of any particular choice within the allowable spectrum is not for us to decide. Upon that premise we turn to the California law in issue here.
10
It would be possible to construe the statute under which the appellant was convicted as one which is operative only upon proof of the actual use of narcotics within the State's jurisdiction. But the California courts have not so construed this law. Although there was evidence in the present case that the appellant had used narcotics in Los Angeles, the jury were instructed that they could convict him even if they disbelieved that evidence. The appellant could be convicted, they were told, if they found simply that the appellant's 'status' or 'chronic condition' was that of being 'addicted to the use of narcotics.' And it is impossible to know from the jury's verdict that the defendant was not convicted upon precisely such a finding.
11
The instructions of the trial court, implicitly approved on appeal, amounted to 'a ruling on a question of state law that is as binding on us as though the precise words had been written' into the statute. Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131. 'We can only take the statute as the state courts read it.' Id., at 6, 69 S.Ct. at 896 Indeed, in their brief in this Court counsel for the State have emphasized that it is 'the proof of addiction by circumstantial evidence * * * by the tell-tale track of needle marks and scabs over the veins of his arms, that remains the gist of the section.'
12
This statute, therefore, is not one which punishes a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration. It is not a law which even purports to provide or require medical treatment. Rather, we deal with a statute which makes the 'status' of narcotic addiction a criminal offense, for which the offender may be prosecuted 'at any time before he reforms.' California has said that a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there.
13
It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. A State might determine that the general health and welfare require that the victims of these and other human afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration. But, in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. See State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422.
14
We cannot but consider the statute before us as of the same category. In this Court counsel for the State recognized that narcotic addiction is an illness.8 Indeed, it is apparently an illness which may be contracted innocently or involuntarily.9 We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment. To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold.
15
We are not unmindful that the vicious evils of the narcotics traffic have occasioned the grave concern of government. There are, as we have said, countless fronts on which those evils may be legitimately attacked. We deal in this case only with an individual provision of a particularized local law as it has so far been interpreted by the California courts.
16
Reversed.
17
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
18
Mr. Justice DOUGLAS, concurring.
19
While I join the Court's opinion, I wish to make more explicit the reasons why I think it is 'cruel and unusual' punishment in the sense of the Eighth Amendment to treat as a criminal a person who is a drug addict.
20
Sixteenth Century England one prescription for insanity was to beat the subject 'until he had regained his reason.' Deutsch, The Mentally Ill in America (1937), p. 13. In America 'the violently insane went to the whipping post and into prison dungeons or, as sometimes happened, were burned at the stake or hanged'; and 'the pauper insane often roamed the countryside as wild men and from time to time were pilloried, whipped, and jailed.' Action for Mental Health (1961), p. 26.
As stated by Dr. Isaac Ray many years ago:
21
'Nothing can more strongly illustrate the popular ignorance respecting insanity than the proposition, equally objectionable in its humanity and its logic, that the insane should be punished for criminal acts, in order to deter other insane persons from doing the same thing.' Treatise on the Medical Jurisprudence of Insanity (5th ed. 1871), p. 56.
22
Today we have our differences over the legal definition of insanity. But however insanity is defined, it is in end effect treated as a disease. While afflicted people may be confined either for treatment or for the protection of society, they are not branded as criminals.
23
Yet terror and punishment linger on as means of dealing with some diseases. As recently stated:
24
'* * * the idea of basing treatment for disease on purgatorial acts and ordeals is an ancient one in medicine. It may trace back to the Old Testament belief that disease of any kind, whether mental or physical, represented punishment for sin; and thus relief could take the form of a final heroic act of atonement. This superstition appears to have given support to fallacious medical rationales for such procedures as purging, bleeding, induced vomiting, and blistering, as well as an entire chamber of horrors constituting the early treatment of mental illness. The latter included a wide assortment of shock techniques, such as the 'water cures' (dousing, ducking, and near-drowning), spinning in a chair, centrifugal swinging, and an early form of electric shock. All, it would appear, were planned as means of driving from the body some evil spirit or toxic vapor.' Action for Mental Health (1961), pp. 27—28.
25
That approach continues as respects drug addicts. Drug addiction is more prevalent in this country than in any other nation of the western world.1 S.Rep.No.1440, 84th Cong., 2d Sess., p. 2. It is sometimes referred to as 'a contagious disease.' Id., at p. 3. But those living in a world of black and white put the addict in the category of those who could, if they would, forsake their evil ways.
26
The first step toward addiction may be as innocent as a boy's puff on a cigarette in an alleyway. It may come from medical prescriptions. Addiction may even be present at birth. Earl Ubell recently wrote:
27
'In Bellevue Hospital's nurseries, Dr. Saul Krugman, head of pediatrics, has been discovering babies minutes old who are heroin addicts.
28
'More than 100 such infants have turned up in the last two years, and they show all the signs of drug withdrawal: irritability, jitters, loss of appetite, vomiting, diarrhea, sometimes convulsions and death.
29
"Of course, they get the drug while in the womb from their mothers who are addicts,' Dr. Krugman said yesterday when the situation came to light. 'We control the symptoms with Thorazine, a tranquilizing drug.
30
"You should see some of these children. They have a high-pitched cry. They appear hungry but they won't eat when offered food. They move around so much in the crib that their noses and toes become red and excoriated.'
31
'Dr. Lewis Thomas, professor of medicine at New York University-Bellevue, brought up the problem of the babies Monday night at a symposium on narcotics addiction sponsored by the New York County Medical Society. He saw in the way the babies respond to treatment a clue to the low rate of cure of addiction.
32
"Unlike the adult addict who gets over his symptoms of withdrawal in a matter of days, in most cases,' Dr. Thomas explained later, 'the infant has to be treated for weeks and months. The baby continues to show physical signs of the action of the drugs.
33
"Perhaps in adults the drugs continue to have physical effects for a much longer time after withdrawal than we have been accustomed to recognize. That would mean that these people have a physical need for the drug for a long period, and this may be the clue to recidivism much more than the social or psychological pressures we've been talking about." N.Y. Herald Tribune, Apr. 25, 1962, p. 25, cols. 3—4.
34
The addict is under compulsions not capable of management without outside help. As stated by the Council on Mental Health:
35
'Physical dependence is defined as the development of an altered physiological state which is brought about by the repeated administration of the drug and which necessitates continued administration of the drug to prevent the appearance of the characteristic illness which is termed an abstinence syndrome. When an addict says that he has a habit, he means that he is physically dependent on a drug. When he says that one drug is habit-forming and another is not, he means that the first drug is one on which physical dependence can be developed and that the second is a drug on which physical dependence cannot be developed. Physical dependence is a real physiological disturbance. It is associated with the development of hyperexcitability in reflexes mediated through multineurone arcs. It can be induced in animals, it has been shown to occur in the paralyzed hind limbs of addicted chronic spinal dogs, and also has been produced in dogs whose cerebral cortex has been removed.' Report on Narcotic Addiction, 165 A.M.A.J. 1707, 1713.
36
Some say the addict has a disease. See Hesse, Narcotics and Drug Addiction (1946), p. 40 et seq.
37
Others say addiction is not a disease but 'a symptom of a mental or psychiatric disorder.' H.R.Rep.No.2388, 84th Cong., 2d Sess., p. 8, U.S. Code Congressional and Administrative News, 1956, p. 3281. And see Present Status of Narcotic Addiction, 138 A.M.A.J. 1019, 1026; Narcotic Addiction, Report to Attorney General Brown by Citizens Advisory Committee to the Attorney General on Crime Prevention (1954), p. 12; Finestone, Narcotics and Criminality, 22 Law & Contemp. Prob. 69, 83—85 (1957).
38
The extreme symptoms of addiction have been described as follows:
39
'To be a confirmed drug addict is to be one of the walking dead. * * * The teeth have rotted out; the appetite is lost and the stomach and intestines don't function properly. The gall bladder becomes inflamed; eyes and skin turn a billious yellow. In some cases membranes of the nose turn a flaming red; the partition separating the nostrils is eaten away breathing is difficult. Oxygen in the blood decreases; bronchitis and tuberculosis develop. Good traits of character disappear and bad ones emerge. Sex organs become affected. Veins collapse and livid purplish scars remain. Boils and abscesses plague the skin; gnawing pain racks the body. Nerves snap; vicious twitching develops. Imaginary and fantastic fears blight the mind and sometimes complete insanity results. Often times, too, death comes—much too early in life. * * * Such is the torment of being a drug addict; such is the plague of being one of the walking dead.' N.Y.L.J., June 8, 1960, p. 4, col. 2.
40
Some States punish addiction, though most do not. See S.Doc. No. 120, 84th Cong., 2d Sess., pp. 41, 42. Nor does the Uniform Narcotic Drug Act, first approved in 1932 and now in effect in most of the States. Great Britain, beginning in 1920 placed 'addiction and the treatment of addicts squarely and exclusively into the hands of the medical profession.' Lindesmith, The British System of Narcotics Control, 22 Law & Contemp. Prob. 138 (1957). In England the doctor 'has almost complete professional autonomy in reaching decisions about the treatment of addicts.' Schur, British Narcotics Policies, 51 J.Crim.L. & Criminology 619, 621 (1961). Under British law 'addicts are patients, not criminals.' Ibid. Addicts have not disappeared in England but they have decreased in number (id., at 622) and there is now little 'addict-crime' there. Id., at 623.
41
The fact that England treats the addict as a sick person, while a few of our States, including California, treat him as a criminal, does not, of course, establish the unconstitutionality of California's penal law. But we do know that there is 'a hard core' of 'chronic and incurable drug addicts who, in reality, have lost their power of self-control.' S.Rep.No.2033, 84th Cong., 2d Sess., p. 8. There has been a controversy over the type of treatment—whether enforced hospitalization or ambulatory care is better. H.R.Rep.No.2388, 84th Cong., 2d Sess., pp. 66—68. But there is little disagreement with the statement of Charles Winick: 'The hold of drugs on persons addicted to them is so great that it would be almost appropriate to reverse the old adage and say that opium derivatives represent the religion of the people who use them.' Narcotics Addiction and its Treatment, 22 Law & Contemp. Prob. 9 (1957). The abstinence symptoms and their treatment are well known. Id., at 10—11. Cure is difficult because of the complex of forces that make for addiction. Id., at 18—23. 'After the withdrawal period, vocational activities, recreation, and some kind of psycho-therapy have a major role in the treatment program, which ideally lasts from four to six months.' Id., at 23—24. Dr. Marie Nyswander tells us that normally a drug addict must be hospitalized in order to be cured. The Drug Addict as a Patient (1956), p. 138.
42
The impact that an addict has on a community causes alarm and often leads to punitive measures. Those measures are justified when they relate to acts of transgression. But I do not see how under our system being an addict can be punished as a crime. If addicts can be punished for their addiction, then the insane can also be punished for their insanity. Each has a disease and each must be treated as a sick person.2 As Charles Winick has said:
43
'There can be no single program for the elimination of an illness as complex as drug addiction, which carries so much emotional freight in the community. Cooperative interdisciplinary research and action, more local community participation, training the various healing professions in the techniques of dealing with addicts, regional treatment facilities, demonstration centers, and a thorough and vigorous post-treatment rehabilitation program would certainly appear to be among the minimum requirements for any attempt to come to terms with this problem. The addict should be viewed as a sick person, with a chronic disease which requires almost emergency action.' 22 Law & Contemp. Prob. 9, 33 (1957).
44
The Council on Mental Health reports that criminal sentences for addicts interferes 'with the possible treatment and rehabilitation of addicts and therefore should be abolished.' 165 A.M.A.J. 1968, 1972.
45
The command of the Eighth Amendment, banning 'cruel and unusual punishments,' stems from the Bill of Rights of 1688. See State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463, 67 S.Ct. 374, 376, 91 L.Ed. 422. And it is applicable to the States by reason of the Due Process Clause of the Fourteenth Amendment. Ibid.
46
The historic punishments that were cruel and unusual included 'burning at the stake, crucifixion, breaking on the wheel' (In re Kemmler, 136 U.S. 436, 446, 10 S.Ct. 930, 933, 34 L.Ed. 519), quartering, the rack and thumbscrew (see Chambers v. Florida, 309 U.S. 227, 237, 60 S.Ct. 472, 477, 84 L.Ed. 716), and in some circumstances even solitary confinement (see In re Medley, 134 U.S. 160, 167—168, 10 S.Ct. 384, 386, 33 L.Ed. 835).
47
The question presented in the earlier cases concerned the degree of severity with which a particular offense was punished or the element of cruelty present.3 A punishment out of all proportion to the offense may bring it within the ban against 'cruel and unusual punishment.' See O'Neil v. Vermont, 144 U.S. 323, 331, 12 S.Ct. 693, 696, 36 L.Ed. 450. So may the cruelty of the method of punishment, as, for example, disemboweling a person alive. See Wilkerson v. Utah, 99 U.S. 130, 135, 25 L.Ed. 345. But the principle that would deny power to exact capital punishment for a petty crime would also deny power to punish a person by fine or imprisonment for being sick.
48
The Eighth Amendment expresses the revulsion of civilized man against barbarous acts—the 'cry of horror' against man's inhumanity to his fellow man. See O'Neil v. Vermont, supra, 144 U.S. at 340, 12 S.Ct. at 699 (dissenting opinion); State of Louisiana ex rel. Francis v. Resweber, supra, 329 U.S. at 473, 67 S.Ct. at 381 (dissenting opinion).
49
By the time of Coke, enlightenment was coming as respects the insane. Coke said that the execution of a madman 'should be a miserable spectacle, both against law, and of extreame inhumanity and cruelty, and can be no example to others.' 6 Coke's Third Inst. (4th ed. 1797), p. 6. Blackstone endorsed this view of Coke. 4 Commentaries (Lewis ed. 1897), p. 25.
50
We should show the same discernment respecting drug addiction. The addict is a sick person. He may, of course, be confined for treatment or for the protection of society.4 Cruel and unusual punishment results not from confinement, but from convicting the addict of a crime. The purpose of § 11721 is not to cure, but to penalize. Were the purpose to cure, there would be no need for a mandatory jail term of not less than 90 days. Contrary to my Brother CLARK, I think the means must stand constitutional scrutiny, as well as the end to be achieved. A prosecution for addiction, with its resulting stigma and irreparable damage to the good name of the accused, cannot be justified as a means of protecting society, where a civil commitment would do as well. Indeed, in § 5350 of the Welfare and Institutions Code, California has expressly provided for civil proceedings for the commitment of habitual addicts. Section 11721 is, in reality, a direct attempt to punish those the State cannot commit civilly.5 This prosecution has no relationship to the curing of an illness. Indeed, it cannot, for the prosecution is aimed at penalizing an illness, rather than at providing medical care for it. We would forget the teachings of the Eighth Amendment if we allowed sickness to be made a crime and permitted sick people to be punished for being sick. This age of enlightenment cannot tolerate such barbarous action.
51
Mr. Justice HARLAN, concurring.
52
I am not prepared to hold that on the present state of medical knowledge it is completely irrational and hence unconstitutional for a State to conclude that narcotics addiction is something other than an illness nor that it amounts to cruel and unusual punishment for the State to subject narcotics addicts to its criminal law. Insofar as addiction may be identified with the use or possession of narcotics within the State (or, I would suppose, without the State), in violation of local statutes prohibiting such acts, it may surely be reached by the State's criminal law. But in this case the trial court's instructions permitted the jury to find the appellant guilty on no more proof than that he was present in California while he was addicted to narcotics.* Since addiction alone cannot reasonably be thought to amount to more than a compelling propensity to use narcotics, the effect of this instruction was to authorize criminal punishment for a bare desire to commit a criminal act.
53
If the California statute reaches this type of conduct, and for present purposes we must accept the trial court's construction as binding, Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131, it is an arbitrary imposition which exceeds the power that a State may exercise in enacting its criminal law. Accordingly, I agree that the application of the California statute was unconstitutional in this case and join the judgment of reversal.
54
Mr. Justice CLARK, dissenting.
55
The Court finds § 11721 of California's Health and Safety Code, making it an offense to 'be addicted to the use of narcotics,' violative of due process as 'a cruel and unusual punishment.' I cannot agree.
56
The statute must first be placed in perspective. California has a comprehensive and enlightened program for the control of narcotism based on the overriding policy of prevention and cure. It is the product of an extensive investigation made in the mid-Fifties by a committee of distinguished scientists, doctors, law enforcement officers and laymen appointed by the then Attorney General, now Governor, of California. The committee filed a detailed study entitled 'Report on Narcotic Addiction' which was given considerable attention. No recommendation was made therein for the repeal of § 11721, and the State Legislature in its discretion continued the policy of that section.
57
Apart from prohibiting specific acts such as the purchase, possession and sale of narcotics, California has taken certain legislative steps in regard to the status of being a narcotic addict—a condition commonly recognized as a threat to the State and to the individual. The Code deals with this problem in realistic stages. At its incipiency narcotic addiction is handled under § 11721 of the Health and Safety Code which is at issue here. It provides that a person found to be addicted to the use of narcotics shall serve a term in the county jail of not less than 90 days nor more than one year, with the minimum 90-day confinement applying in all cases without exception. Provision is made for parole with periodic tests to detect readdiction.
58
The trial court defined 'addicted to narcotics' as used in § 11721 in the following charge to the jury:
59
'The word 'addicted' means, strongly disposed to some taste or practice or habituated, especially to drugs. In order to inquire as to whether a person is addicted to the use of narcotics is in effect an inquiry as to his habit in that regard. Does he use them habitually. To use them often or daily is, according to the ordinary acceptance of those words, to use them habitually.'
60
There was no suggestion that the term 'narcotic addict' as here used included a person who acted without volition or who had lost the power of self-control. Although the section is penal in appearance—perhaps a carry-over from a less sophisticated approach its present provisions are quite similar to those for civil commitment and treatment of addicts who have lost the power of self-control, and its present purpose is reflected in a statement which closely follows § 11721: 'The rehabilitation of narcotic addicts and the prevention of continued addiction to narcotics is a matter of statewide concern.' California Health and Safety Code, § 11728.
61
Where narcotic addiction has progressed beyond the incipient, volitional stage, California provides for commitment of three months to two years in a state hospital. California Welfare and Institutions Code, § 5355. For the purposes of this provision, a narcotic addict is defined as
62
'any person who habitually takes or otherwise uses to the extent of having lost the power of self-control any opium, morphine, cocaine, or other narcotic drug as defined in Article 1 of Chapter 1 of Division 10 of the Health and Safety Code.' California Welfare and Institutions Code, § 5350. (Emphasis supplied.)
63
This proceeding is clearly civil in nature with a purpose of rehabilitation and cure. Significantly, if it is found that a person committed under § 5355 will not receive substantial benefit from further hospital treatment and is not dangerous to society, he may be discharged—but only after a minimum confinement of three months. § 5355.1.
64
Thus, the 'criminal' provision applies to the incipient narcotic addict who retains self-control, requiring confinement of three months to one year and parole with frequent tests to detect renewed use of drugs. Its overriding purpose is to cure the less seriously addicted person by preventing further use. On the other hand, the 'civil' commitment provision deals with addicts who have lost the power of self-control, requiring hospitalization up to two years. Each deals with a different type of addict but with a common purpose. This is most apparent when the sections overlap: if after civil commitment of an addict it is found that hospital treatment will not be helpful, the addict is confined for a minimum period of three months in the same manner as is the volitional addict under the 'criminal' provision.
65
In the instant case the proceedings against the petitioner were brought under the volitional-addict section. There was testimony that he had been using drugs only four months with three to four relatively mild doses a week. At arrest and trial he appeared normal. His testimony was clear and concise, being simply that he had never used drugs. The scabs and pocks on his arms and body were caused, he said, by 'overseas shots' administered during army service preparatory to foreign assignment. He was very articulate in his testimony but the jury did not believe him, apparently because he had told the clinical expert while being examined after arrest that he had been using drugs, as I have stated above. The officer who arrested him also testified to like statements and to scabs—some 10 or 15 days old—showing narcotic injections. There was no evidence in the record of withdrawal symptoms. Obviously he could not have been committed under § 5355 as one who had completely 'lost the power of self-control.' The jury was instructed that narcotic 'addiction' as used in § 11721 meant strongly disposed to a taste or practice or habit of its use, indicated by the use of narcotics often or daily. A general verdict was returned against petitioner, and he was ordered confined for 90 days to be followed by a two-year parole during which he was required to take periodic Nalline tests.
66
The majority strikes down the conviction primarily on the grounds that petitioner was denied due process by the imposition of criminal penalties for nothing more than being in a status. This view point is premised upon the theme that § 11721 is a 'criminal' provision authorizing a punishment, for the majority admits that 'a State might establish a program of compulsory treatment for those addicted to narcotics' which 'might require periods of involuntary confinement.' I submit that California has done exactly that. The majority's error is in instructing the California Legislature that hospitalization is the only treatment for narcotics addiction—that anything less is a punishment denying due process. California has found otherwise after a study which I suggest was more extensive than that conducted by the Court. Even in California's program for hospital commitment of nonvolitional narcotic addicts—which the majority approves—it is recognized that some addicts will not respond to or do not need hospital treatment. As to these persons its provisions are identical to those of § 11721—confinement for a period of not less than 90 days. Section 11721 provides this confinement as treatment for the volitional addicts to whom its provisions apply, in addition to parole with frequent tests to detect and prevent further use of drugs. The fact that § 11721 might be labeled 'criminal' seems irrelevant,* not only to the majority's own 'treatment' test but to the 'concept of ordered liberty' to which the States must attain under the Fourteenth Amendment. The test is the overall purpose and effect of a State's act, and I submit that California's program relative to narcotic addicts—including both the 'criminal' and 'civil' provisions—is inherently one of treatment and lies well within the power of a State.
67
However, the case in support of the judgment below need not rest solely on this reading of California law. For even if the overall statutory scheme is ignored and a purpose and effect of punishment is attached to § 11721, that provision still does not violate the Fourteenth Amendment. The majority acknowledges, as it must, that a State can punish persons who purchase, possess or use narcotics. Although none of these acts are harmful to society in themselves, the State constitutionally may attempt to deter and prevent them through punishment because of the grave threat of future harmful conduct which they pose. Narcotics addiction including the incipient, volitional addiction to which this provision speaks—is no different. California courts have taken judicial notice that 'the inordinate use of a narcotic drug tends to create an irresistible craving and forms a habit for its continued use until one becomes an addict, and he respects no convention or obligation and will lie, steal, or use any other base means to gratify his passion for the drug, being lost to all considerations of duty or social position.' People v. Jaurequi, 142 Cal.App.2d 555, 561, 298 P.2d 896, 900 (1956). Can this Court deny the legislative and judicial judgment of California that incipient, volitional narcotic addiction poses a threat of serious crime similar to the threat inherent in the purchase or possession of narcotics? And if such a threat is inherent in addiction, can this Court say that California is powerless to deter it by punishment?
68
It is no answer to suggest that we are dealing with an involuntary status and thus penal sanctions will be ineffective and unfair. The section at issue applies only to persons who use narcotics often or even daily but not to the point of losing self-control. When dealing with involuntary addicts California moves only through § 5355 of its Welfare Institutions Code which clearly is not penal. Even if it could be argued that § 11721 may not be limited to volitional addicts, the petitioner in the instant case undeniably retained the power of self-control and thus to him the statute would be constitutional. Moreover, 'status' offenses have long been known and recognized in the criminal law. 4 Blackstone, Commentaries (Jones ed. 1916), 170. A ready example is drunkenness, which plainly is as involuntary after addiction to alcohol as is the taking of drugs.
69
Nor is the conjecture relevant that petitioner may have acquired his habit under lawful circumstances. There was no suggestion by him to this effect at trial, and surely the State need not rebut all possible lawful sources of addiction as part of its prima facie case.
70
The argument that the statute constitutes a cruel and unusual punishment is governed by the discussion above. Properly construed, the statute provides a treatment rather than a punishment. But even if interpreted as penal, the sanction of incarceration for 3 to 12 months is not unreasonable when applied to a person who has voluntarily placed himself in a condition posing a serious threat to the State. Under either theory, its provisions for 3 to 12 months' confinement can hardly be deemed unreasonable when compared to the provisions for 3 to 24 months' confinement under § 5355 which the majority approves.
71
I would affirm the judgment.
72
Mr. Justice WHITE, dissenting.
73
If appellant's conviction rested upon sheer status, condition or illness or if he was convicted for being an addict who had lost his power of self-control, I would have other thoughts about this case. But this record presents neither situation. And I believe the Court has departed from its wise rule of not deciding constitutional questions except where necessary and from its equally sound practice of construing state statutes, where possible, in a manner saving their constitutionality.1
74
I am not at all ready to place the use of narcotics beyond the reach of the States' criminal laws. I do not consider appellant's conviction to be a punishment for having an illness or for simply being in some status or condition, but rather a conviction for the regular, repeated or habitual use of narcotics immediately prior to his arrest and in violation of the California law. As defined by the trial court,2 addiction is the regular use of narcotics and can be proved only by evidence of such use. To find addiction in this case the jury had to believe that appellant had frequently used narcotics in the recent past.3 California is entitled to have its statute and the record so read, particularly where the State's only purpose in allowing prosecutions for addiction was to supersede its own venue requirements applicable to prosecutions for the use of narcotics and in effect to allow convictions for use where there is no precise evidence of the county where the use took place.4
75
Nor do I find any indications in this record that California would apply § 11721 to the case of the helpless addict. I agree with my Brother CLARK that there was no evidence at all that appellant had lost the power to control his acts. There was no evidence of any use within 3 days prior to appellant's arrest. The most recent marks might have been 3 days old or they might have been 10 days old. The appellant admitted before trial that he had last used narcotics 8 days before his arrest. At the trial he denied having taken narcotics at all. The uncontroverted evidence was that appellant was not under the influence of narcotics at the time of his arrest nor did he have withdrawal symptoms. He was an incipient addict, a redeemable user, and the State chose to send him to jail for 90 days rather than to attempt to confine him by civil proceedings under another statute which requires a finding that the addict has lost the power of self-control. In my opinion, on this record, it was within the power of the State of California to confine him by criminal proceedings for the use of narcotics or for regular use amounting to habitual use.5
76
The Court clearly does not rest its decision upon the narrow ground that the jury was not expressly instructed not to convict if it believed appellant's use of narcotics was beyond his control. The Court recognizes no degrees of addiction. The Fourteenth Amendment is today held to bar any prosecution for addiction regardless of the degree or frequency of use, and the Court's opinion bristles with indications of further consequences. If it is 'cruel and unusual punishment' to convict appellant for addiction, it is difficult to understand why it would be any less offensive to the Fourteenth Amendment to convict him for use on the same evidence of use which proved he was an addict. It is significant that in purporting to reaffirm the power of the States to deal with the narcotics traffic, the Court does not include among the obvious powers of the State the power to punish for the use of narcotics. I cannot think that the omission was inadvertent.
77
The Court has not merely tidied up California's law by removing some irritating vestige of an outmoded approach to the control of narcotics. At the very least, it has effectively removed California's power to deal effectively with the recurring case under the statute where there is ample evidence of use but no evidence of the precise location of use. Beyond this it has cast serious doubt upon the power of any State to forbid the use of narcotics under threat of criminal punishment. I cannot believe that the Court would forbid the application of the criminal laws to the use of narcotics under any circumstances. But the States, as well as the Federal Government, are now on notice. They will have to await a final answer in another case.
78
Finally, I deem this application of 'cruel and unusual punishment' so novel that I suspect the Court was hard put to find a way to ascribe to the Framers of the Constitution the result reached today rather than to its own notions of ordered liberty. If this case involved economic regulation, the present Court's allergy to substantive due process would surely save the statute and prevent the Court from imposing its own philosophical predilections upon state legislatures or Congress. I fail to see why the Court deems it more appropriate to write into the Constitution its own abstract notions of how best to handle the narcotics problem, for it obviously cannot match either the States or Congress in expert understanding.
79
I respectfully dissent.
1
The statute is § 11721 of the California Health and Safety Code. It provides:
'No person shall use, or be under the influence of, or be addicted to the use of narcotics, excepting when administered by or under the direction of a person licensed by the State to prescribe and administer narcotics. It shall be the burden of the defense to show that it comes within the exception. Any person convicted of violating any provision of this section is guilty of a misdemeanor and shall be sentenced to serve a term of not less than 90 days nor more than one year in the county jail. The court may place a person convicted hereunder on probation for a period not to exceed five years and shall in all cases in which probation in granted require as a condition thereof that such person be confined in the county jail for at least 90 days. In no event does the court have the power to absolve a person who violates this section from the obligation of spending at least 90 days in confinement in the county jail.'
2
At the trial the appellant, claiming that he had been the victim of an unconstitutional search and seizure, unsuccessfully objected to the admission of Officer Brown's testimony. That claim is also pressed here, but since we do not reach it there is no need to detail the circumstances which led to Officer Brown's examination of the appellant's person. Suffice it to say, that at the time the police first accosted the appellant, he was not engaging in illegal or irregular conduct of any kind, and the police had no reason to believe he had done so in the past.
3
The judge did not instruct the jury as to the meaning of the term 'under the influence of' narcotics, having previously ruled that there was no evidence of a violation of that provision of the statute. See note 1, supra.
4
'Where a statute such as that which defines the crime charged in this case denounces an act and a status or condition, either of which separately as well as collectively, constitute the criminal offense charged, an accusatory pleading which accuses the defendant of having committed the act and of being of the status or condition so denounced by the statute, is deemed supported if the proof shows that the defendant is guilty of any one or more of the offenses thus specified. However, it is important for you to keep in mind that, in order to convict a defendant in such a case, it is necessary that all of you agree as to the same particular act or status or condition found to have been committed or found to exist. It is not necessary that the particular act or status or condition so agreed upon be stated in the verdict.'
5
The instructions continued 'and it is then up to the defendant to prove that the use, or of being addicted to the use of narcotics was administered by or under the direction of a person licensed by the State of California to prescribe and administer narcotics or at least to raise a reasonable doubt concerning the matter.' No evidence, of course, had been offered in support of this affirmative defense, since the appellant had denied that he had used narcotics or been addicted to their use.
6
The appellant tried unsuccessfully to secure habeas corpus relief in the District Court of Appeal and the California Supreme Court.
7
California appears to have established just such a program in §§ 5350—5361 of its Welfare and Institutions Code. The record contains no explanation of why the civil procedures authorized by this legislation were not utilized in the present case.
8
In its brief the appellee stated: 'Of course it is generally conceded that a narcotic addict, particularly one addicted to the use of heroin, is in a state of mental and physical illness. So is an alcoholic.' Thirty-seven years ago this Court recognized that persons addicted to narcotics 'are diseased and proper subjects for (medical) treatment.' Linder v. United States, 268 U.S. 5, 18, 45 S.Ct. 446, 449, 69 L.Ed. 819.
9
Not only may addiction innocently result from the use of medically prescribed narcotics, but a person may even be a narcotics addict from the moment of his birth. See Schneck, Narcotic Withdrawal Symptoms in the Newborn Infant Resulting from Maternal Addiction, 52 Journal of Pediatrics, 584 (1958); Roman and Middelkamp, Narcotic Addiction in a Newborn Infant, 53 Journal of Pediatrics 231 (1958); Kunstadter, Klein, Lundeen, Witz, and Morrison, Narcotic Withdrawal Symptoms in Newborn Infants, 168 Journal of the American Medical Association, 1008, (1958); Slobody and Cobrinik, Neonatal Narcotic Addiction, 14 Quarterly Review of Pediatrics, 169 (1959); Vincow and Hackel, Neonatal Narcotic Addiction, 22 General Practitioner 90 (1960); Dikshit, Narcotic Withdrawal Syndrome in Newborns, 28 Indian Journal of Pediatrics 11 (1961).
1
Drug Addiction: Crime or Disease? (1961), p. XIV. '* * * even if one accepts the lowest estimates of the number of addicts in this country there would still be more here than in all the countries of Europe combined. Chicago and New York City, with a combined population of about 11 million or one-fifth that of Britain, are ordinarily estimated to have about 30,000 addicts, which is from thirty to fifty times as many as there are said to be in Britain.'
2
'The sick addict must be quarantined until cured, and then carefully watched until fully rehabilitated to a life of normalcy.' Narcotics, N.Y.Leg.Doc. No. 27 (1952), p. 116. And see the report of Judge Morris Ploscowe printed as Appendix A, Drug Addiction: Crime or Disease? (1961), pp. 18, 19—20, 21.
'These predilections for stringent law enforcement and severer penalties as answers to the problems of drug addiction reflect the philosophy and the teachings of the Bureau of Narcotics. For years the Bureau has supported the doctrine that if penalties for narcotic drug violations were severe enough and if they could be enforced strictly enough, drug addiction and the drug traffic would largely disappear from the American scene. This approach to problems of narcotics has resulted in spectacular modifications of our narcotic drug laws on both the state and federal level. * * *
'Stringent law enforcement has its place in any system of controlling narcotic drugs. However, it is by no means the complete answer to American problems of drug addiction. In the first place it is doubtful whether drug addicts can be deterred from using drugs by threats of jail or prison sentences. The belief that fear of punishment is a vital factor in deterring an addict from using drugs rests upon a superficial view of the drug addiction process and the nature of drug addiction. * * *
'* * * The very severity of law enforcement tends to increase the price of drugs on the illicit market and the profits to be made therefrom. The lure of profits and the risks of the traffic simply challenge the ingenuity of the underworld peddlers to find new channels of distribution and new customers, so that profits can be maintained despite the risks involved. So long as a non-addict peddler is willing to take the risk of serving as a wholesaler of drugs, he can always find addict pushers or peddlers to handle the retail aspects of the business in return for a supply of the drugs for themselves. Thus, it is the belief of the author of this report that no matter how severe law enforcement may be, the drug traffic cannot be eliminated under present prohibitory repressive statutes.'
3
See 3 Catholic U.L.Rev. 117 (1953); 31 Marq.L.Rev. 108 (1947); 22 St. John's L.Rev. 270 (1948); 2 Stan.L.Rev. 174 (1949); 33 Va.L.Rev. 348 (1947); 21 Tul.L.Rev. 480 (1947); 1960 Wash.U.L.Q., p. 160.
4
As to the insane, see Lynch v. Overholser, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211; note, 1 L.R.A. (N.S.), p. 540 et seq.
5
The difference between § 5350 and § 11721 is that the former aims at treatment of the addiction, whereas § 11721 does not. The latter cannot be construed to provide treatment, unless jail sentences, without more, are suddenly to become medicinal. A comparison of the lengths of confinement under the two sections is irrelevant, for it is the purpose of the confinement that must be measured against the constitutional prohibition of cruel and unusual punishments.
Health and Safety Code § 11391, to be sure, indicates that perhaps some form of treatment may be given an addict convicted under § 11721. Section 11391, so far as here relevant, provides:
'No person shall treat an addict for addiction except in one of the following:
'(a) An institution approved by the Board of Medical Examiners, and where the patient is at all times kept under restraint and control.
'(b) A city or county jail.
'(c) A state prison.
'(d) A state narcotic hospital.
'(e) A state hospital.
'(f) A county hospital.
'This section does not apply during emergency treatment or where the patient's addiction is complicated by the presence of incurable disease, serious accident, or injury, or the infirmities of old age.' (Emphasis supplied.)
Section 11391 does not state that any treatment is required for either part or the whole of the mandatory 90-day prison term imposed by § 11721. Should the necessity for treatment end before the 90-day term is concluded, or should no treatment be given, the addict clearly would be undergoing punishment for an illness. Therefore, reference to § 11391 will not solve or alleviate the problem of cruel and unusual punishment presented by this case.
*
The jury was instructed that 'it is not incumbent upon the People to prove the unlawfulness of defendant's use of narcotics. All that the People must show is either that the defendant did use a narcotic in Los Angeles County, or that while in the City of Los Angeles he was addicted to the use of narcotics.' (Emphasis added.) Although the jury was told that it should acquit if the appellant proved that his 'being addicted to the use of narcotics was administered (sic) by or under the direction of a person licensed by the State of California to prescribe and administer narcotics,' this part of the instruction did not cover other possible lawful uses which could have produced the appellant's addiction.
*
Any reliance upon the 'stigma' of a misdemeanor conviction in this context is misplaced, as it would hardly be different from the stigma of a civil commitment for narcotics addiction.
1
It has repeatedly been held in this Court that its practice will not be 'to decide any constitutional question in advance of the necessity for its decision * * * or * * * except with reference to the particular facts to which it is to be applied,' Alabama State Federation, etc. v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 1389, 89 L.Ed. 1725, and that state statutes will always be construed, if possible, to save their constitutionality despite the plausibility of different but unconstitutional interpretation of the language. Thus, the Court recently reaffirmed the principle in Local No. 8—6, Oil etc., Workers International Union v. Missouri, 361 U.S. 363, 370, 80 S.Ct. 391, 396, 4 L.Ed.2d 373: 'When that claim is litigated it will be subject to review, but it is not for us now to anticipate its outcome. "Constitutional questions are not to be dealt with abstractly' * * *. They will not be anticipated but will be dealt with only as they are appropriately raised upon a record before us. * * * Nor will we assume in advance that a State will so construe its law as to bring it into conflict with the federal Constitution or an act of Congress.' Allen-Bradley Local, etc. v. Wisconsin Employment Relations Board, 315 U.S. 740, at page 746, 62 S.Ct. 820, at page 824, 86 L.Ed. 1154.'
2
The court instructed the jury that, 'The word 'addicted' means, strongly disposed to some taste or practice or habituated, especially to drugs. In order to inquire as to whether a person is addicted to the use of narcotics is in effect an inquiry as to his habit in that regard. * * * To use them often or daily is, according to the ordinary acceptance of those words, to use them habitually.'
3
This is not a case where a defendant is convicted 'even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there.' The evidence was that appellant lived and worked in Los Angeles. He admitted before trial that he had used narcotics for three or four months, three or four times a week, usually at his place with his friends. He stated to the police that he had last used narcotics at 54th and Central in the City of Los Angeles on January 27, 8 days before his arrest. According to the State's expert, no needle mark or scab found on appellant's arms was newer than 3 days old and the most recent mark might have been as old as 10 days, which was consistent with appellant's own pretrial admissions. The State's evidence was that appellant had used narcotics at least 7 times in the 15 days immediately preceding his arrest.
4
The typical case under the narcotics statute, as the State made clear in its brief and argument, is the one where the defendant makes no admissions, as he did in this case, and the only evidence of use or addiction is presented by an expert who, on the basis of needle marks and scabs or other physical evidence revealed by the body of the defendant, testifies that the defendant has regularly taken narcotics in the recent past. See, e.g., People v. Williams, 164 Cal.App.2d Supp. 858, 331 P.2d 251; People v. Garcia, 122 Cal.App.2d Supp. 962, 266 P.2d 233; People v. Ackles, 147 Cal.App.2d 40, 304 P.2d 1032. Under the local venue requirements, a conviction for simple use of narcotics may be had only in the county where the use took place, People v. Garcia, supra, and in the usual case evidence of the precise location of the use is lacking. Where the charge is addiction, venue under § 11721 of the Health and Safety Code may be laid in any county where the defendant is found. People v. Ackles, supra, 147 Cal.App.2d, at 42—43, 304 P.2d at 1033, distinguishing People v. Thompson, 144 Cal.App.2d Supp. 854, 301 P.2d 313. Under California law a defendant has no constitutional right to be tried in any particular county, but under statutory law, with certain exceptions, 'an accused person is answerable only in the jurisdiction where the crime, or some part or effect thereof, was committed or occurred.' People v. Megladdery, 40 Cal.App.2d 748, 762, 106 P.2d 84, 92. A charge of narcotics addiction is one of the exceptions and there are others. See, e.g., §§ 781, 784, 785, 786, 788, Cal.Penal Code. Venue is to be determined from the evidence and is for the jury, but it need not be proved beyond a reasonable doubt. People v. Megladdery, supra, 40 Cal.App.2d, at 764, 106 P.2d, at 93. See People v. Bastio, 55 Cal.App.2d 615, 131 P.2d 614; People v. Garcia, supra. In reviewing convictions in narcotics cases, appellate courts view the evidence of venue 'in the light most favorable to the judgment.' People v. Garcia, supra.
5
Health and Safety Code § 11391 expressly permits and contemplates the medical treatment of narcotics addicts confined to jail.
| 01
|
370 U.S. 650
82 S.Ct. 1399
8 L.Ed.2d 750
R. Milo GILBERT, Petitioner,v.UNITED STATES.
No. 478.
Argued April 10, 1962.
Decided June 25, 1962.
Fred Okrand and Albert A. Dorn, Los Angeles, Cal., for petitioner.
Kirby W. Patterson, Washington, D.C., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Petitioner, an accountant whose business included acting for others in federal income tax matters, was charged in a thirty-five-count indictment with violations of 26 U.S.C. § 7206(2), 26 U.S.C.A. § 7206(2), 18 U.S.C. § 1001, 18 U.S.C.A. § 1001, and 18 U.S.C. § 495, 18 U.S.C.A. § 495, in that he had allegedly falsified his clients' returns (§ 7206(2)), forged their endorsements on government tax-refund checks (§ 495), and, by endorsing such checks, had made false statements as to a matter within the jurisdiction of a government agency (§ 1001). The jury convicted on thirty-one counts and acquitted on four others. On appeal, 9 Cir., 291 F.2d 586, 597, the judgment of conviction was set aside as to twenty-nine counts, and a new trial ordered, because the Court of Appeals found that evidence used by the Government in support of these counts had been illegally seized. The judgment as to the remaining two counts (Nos. 21 and 22), charging the petitioner with having forged the endorsements of Daniel H. Bartfield and Charline R. Bartfield on two government refund checks (18 U.S.C. § 495, 18 U.S.C.A. § 495), was affirmed.1
2
It was stipulated at the trial that petitioner had endorsed in his own handwriting the two checks, made out to:
3
'Daniel H & Charlene R Bartfield
4
c/o R Milo Gilbert
519 Taft Building
5
Hollywood 28 Calif'
6
in the following manner:
7
'Daniel H. Bartfield
Charline R. Bartfield
R. Milo Gilbert, Trustee'2
8
Petitioner claimed that a written power of attorney, allegedly signed by both Bartfields in his office, authorized him to endorse tax-refund checks, and that 'Trustee' after his name served to designate the particular bank account where he deposited and held all client-refunds until December of each year, against the possibility of there being a refund adjustment and until his contingent fee was settled. The Bartfields acknowledged that the signatures on the power of attorney were theirs, but disclaimed recollection of signing the instrument, and denied that they ever authorized petitioner orally or in writing to receive or endorse checks.3
9
On these premises the Court of Appeals, concluding that the evidence was sufficient to permit the jury to find that petitioner had endorsed the checks without authority (a conclusion which for present purposes we accept), held that one who endorses a government check by signing the name of the payee and then his own, as agent, when in fact he has no such authority, is guilty of forgery under § 495. We granted certiorari to consider the correctness of that view of the statute. 368 U.S. 816, 82 S.Ct. 93, 7 L.Ed.2d 23. While not mentioned in the petition for certiorari, though discussed in the briefs on the merits, the Court of Appeals for the Tenth Circuit, after the Court of Appeals' decision in the present case, held that 'forgery' under § 495 does not embrace a purported, but misrepresented, agency endorsement (hereafter called simply an 'agency endorsement'). Selvidge v. United States, 290 F.2d 894. For reasons given in this opinion we agree with the Tenth Circuit.
I.
10
At the outset we are met with the Government's suggestion that the statutory construction question need not be faced in this case. Before the Court of Appeals, as in the petition for certiorari, it was assumed by all that the two checks (which after the trial and before the case reached this Court had for some reason become mislaid) had been endorsed 'by R. Milo Gilbert, Trustee.' (Emphasis added.) That was a mistaken assumption for, as the checks themselves show (supra, 370 U.S., p. 651, 82 S.Ct., p. 1400), there was no 'by' before 'R. Milo Gilbert, Trustee.'
11
Arguing that the jury might have found that the word 'Trustee' after Gilbert's signature did not purport to indicate an agency endorsement, but was merely intended as a designation for routing the checks for deposit in one of Gilbert's 'client' bank accounts, the Government suggests that a plain case of forgery is made out, and the agency-endorsement question is not in truth presented by the record.
12
We cannot so easily dispose of the case. For accepting the premise that the jury could have found that petitioner did not purport to act in a representative capacity when he endorsed the checks, it was surely also permissible for the jury to find that petitioner had purported to make an agency endorsement in both instances, and we are thus left to speculate on which theory its verdict in fact rested. Indeed the record before us seems to indicate that this aspect of the case was tried, at least primarily, on an agency-endorsement theory. The trial judge's instructions to the jury on this phase of the case were at best opaque. Having refused to instruct the jury that an agency endorsement was not forgery under § 495,4 he at no point undertook to explain the difference between an agency and a nonagency endorsement.5 Nor can we perceive any force in the Government's further suggestion that the jury's verdict on these two counts might have rested simply on the theory that in describing himself as 'Trustee' the petitioner had made a fictious endorsement, in that he had never occupied that status. Since the charge was that petitioner had forged the names of the Bartfields, not of their agent, this is but another way of describing the agency-endorsement version of the transaction.
13
In this posture of things the Government's proposal that we bypass decision of the question that brought the case here must be rejected. If an agency endorsement does not constitute forgery under § 495, the petitioner is at least entitled to a new trial under proper jury instructions.
II.
14
The original predecessor of § 495 was enacted in 1823, 3 Stat. 771, and in respects here pertinent has throughout the intervening years been in substantially the same form as § 495. There is no significant legislative history illuminating § 495 or any of its predecessors. In deciding whether 'forges' under § 495 embraces agency endorsements, it is therefore important to inquire, as the Government recognizes, into the common-law meaning of forgery at the time the 1823 statute was enacted. For in the absence of anything to the contrary it is fair to assume that Congress used that word in the statute in its common-law sense.
15
In 1847 it was decided in the English case of Regina v. White, 2 Car. & K. 404, 175 Eng.Rep. 167 (Nisi Prius, Book 6), that 'indorsing a bill of exchange under a false assumption of authority to indorse it per procuration, is not forgery, there being no false making.'6 2 Car. & K., at 412, 175 Eng.Rep., at 170 (Nisi Prius, Book 6). This to be sure was some twenty-four years after the 1823 predecessor of § 495 came on the books. The Government says that this English decision should be regarded as but an ill-advised and temporary departure from the earlier common law which was 'soon recognized' and remedied by the passage of the Forgery Act of 1861, 24 & 25 Vict., c. 98, § 24, defining forgery to include unauthorized signings 'per procuration,' with intent to defraud.7 The Government draws from earlier English authority, 2 East, Pleas of the Crown, 850—859 (1803); 1 Hawkins, Pleas of the Crown, c. 70; Coke, Third Institute (1797 ed.) 169; 4 Blackstone, Commentaries, 247, the conclusion that agency endorsements did constitute forgery under the common law as it existed when the 1823 American statute was passed.
16
This view cannot readily be accepted. The fifteen judges who participated in Regina v. White unanimously decided that case as they did only after considering the earlier English authorities. Such of those authorities as are now relied on by the Government are by no means as clear as the Government would have them. Thus Lord East's comments, supra, at p. 852, were: 'Forgery at common law denotes a false making (which includes every alternation of or addition to a true instrument), a making malo animo, of any written instrument for the purpose of fraud and deceit. * * * (The ancient and modern authorities) all consider the offence as consisting in the false and fraudulent making or altering of such and such instruments.' (Emphasis in original). Coke,8 Hawkins,9 and Blackstone,10 who are also cited by the Government, are no more persuasive towards the Government's view. The more inclusive definition of forgery contained in the English statutes, supra, 370 U.S., p. 655, 82 S.Ct., p. 1402 and note 7, proves not that Regina v. White was mistaken in its view of the common law but only that a broader definition was deemed desirable by Parliament. And finally, the Regina v. White view of forgery at common law was early accepted in a federal case as representing the English common law. In re Extradition of Tully, C.C., 20 F. 812. The same view of forgery has since been followed in most of the state and federal courts in this country. See, e.g., People v. Bendit, 111 Cal. 274, 276—280, 43 P. 901, 902, 31 L.R.A. 831; Pasadena Investment Co. v. Peerless Casualty Co., 132 Cal.App.2d 328, 331, 282 P.2d 124, 125, 52 A.L.R.2d 203; State v. Lamb, 198 N.C. 423, 425—426, 152 S.E. 154, 155—156; Dexter Horton Nat. Bank of Seattle v. United States Fidelity & Guaranty Co., 149 Wash. 343, 346—351, 270 P. 799, 800—802; Greathouse v. United States, 4 Cir., 170 F.2d 512, 514; Marteney v. United States, 10 Cir., 216 F.2d 760, 763 764.
17
The foregoing considerations combine to lead us to the conclusion that 'forge' in § 495 should not be taken to include an agency endorsment. So the Court of Appeals for the Tenth Circuit has held in Selvidge v. United States, supra, the only case in the lower federal courts squarely dealing with the point,11 and we perceive no sound reason for rejecting its conclusion. We find no more persuasive than did the Court of Appeals in Selvidge (290 F.2d, at 896 and note 2) the scattered federal cases relied on by the Government in support of the opposite view.12 Nor are we impressed with the argument that 'forge' in § 495 should be given a broader scope than its common-law meaning because contained in a statute aimed at protecting the Government against fraud.13 Other federal statutes are ample enough to protect the Government against fraud and false statements. See 18 U.S.C. §§ 1001—1026, 18 U.S.C.A. §§ 1001—1026. Still further, it is significant that cases construing 'forge' under other federal statutes have generally drawn a distinction between false or fraudulent statements and spurious or fictitious makings. See, e.g., Greathouse v. United States, supra (construing 18 U.S.C. § 2314, 18 U.S.C.A. § 2314); Wright v. United States, 9 Cir., 172 F.2d 310, 311—312 (construing 18 U.S.C. § 2314, 18 U.S.C.A. § 2314); Marteney v. United States, supra (construing 18 U.S.C. § 2314, 18 U.S.C.A. § 2314; United States v. Carabasi, 3 Cir., 292 F.2d 362, 364 (construing 7 U.S.C. § 1622(h), 7 U.S.C.A. § 1622(h)). Where the 'falsity lies in the representation of facts, not in the genuineness of execution,' it is not forgery. Marteney v. United States, supra, 216 F.2d at 763—764. Of course, Congress could broaden the concept of 'federal' forgery by statutory definition. We hold only that it has not yet done so.
18
We conclude that petitioner's conviction cannot be sustained upon this record. However, since we are not prepared at this stage to say that the Government might not be entitled to succeed on these two counts of the indictment upon the theory that petitioner never signed the Bartfields' names in a representative capacity, we think the way should be left open for a retrial of them under proper jury instructions, in conjunction with the other counts already remanded by the Court of Appeals, within a reasonable time. Accordingly, the judgment of the Court of Appeals is vacated and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered.
19
Judgment of the Court of Appeals vacated and case remanded to the District Court.
20
Mr. Justice BLACK, Mr. Justice CLARK, and Mr. Justice STEWART dissent, believing that one who endorses a check in the name of the payee without authority to do so is guilty of forgery under 18 U.S.C. § 495, 18 U.S.C.A. § 495, whether or not the forger falsely purports to have signed the payee's name as an authorized agent.
21
Mr. Justice FRANKFURTER and Mr. Justice WHITE took no part in the consideration or decision of this case.
1
18 U.S.C. § 495, 18 U.S.C.A. § 495, provides: 'Whoever falsely makes, alters, forges, or counterfeits any deed, power of attorney, order, certificate, receipt, contract, or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States or any officers or agents thereof, any sum of money. * * *
'Shall be fined not more than $1,000 or imprisoned not more than ten years, or both.'
Counts 21 and 22, which are identical in form, charge:
'On or about June 2, 1958, * * * the defendant R. Milo Gilbert knowingly and wilfully forged on United States Treasury Check * * * the endorsement and signature of the payees, Daniel H. and Chalrene R. Bartfield, for the purpose of obtaining and receiving said amount from the United States, its officers and agents.'
2
As payee of the two checks, Mrs. Bartfield's first name (Charline) was incorrectly spelled 'Chalrene' on one and 'Charlene' on the other, the former misspelling being carried over into the indictments. (Note 1, supra.) On one of the checks, petitioner's first name, as part of the payee inscription, was incorrectly spelled 'Mile.'
3
No claim is made in this case that there was anything wrong with the Bartfields' income tax returns, to which the two refund checks related.
4
Petitioner's requested instructions pertinent to these two counts, both rejected, were:
1. 'One who executes an instrument purporting on its face to be executed by him as agent of a principal named therein, when in fact he has no authority for such principal to execute said instrument, is not guilty of forgery. People v. Bendit, 111 C(al.) 274 (43 P. 901, 31 L.R.A. 831) (1896); International Finance Corporation v. People's Bank of Keyser (D.C.), 27 F.2d 523, at 527. 4 I ALR 231 n.'
2. 'A check endorsed as follows—name of payee by other as trustee, does not constitute a forged instrument under U.S.C. Title 18, Section 495 (18 U.S.C.A. § 495).'
5
Other than a dictionary definition of the word 'trustee,' the only instructions given the jury by the trial judge on this phase of the case were these:
'Where a tax accountant represents a taxpayer in the preparation of tax returns, there is no presumption of authority and the rights of the tax accountant must be governed by the terms of his employment, as applies to any other ordinary agency.
'Also, a power of attorney to prosecute a claim against the Government giving authority to receive a check in payment gives the agent no power to indorse and collect the check. But such authority may be given either orally or by writing.'
No instructions specifically addressed to the elements of the offense under 18 U.S.C. § 1001, 18 U.S.C.A. § 1001, were given, and the Government does not here seek to support the conviction on the two forgery counts on the basis of that section.
6
The trial judge, in summation, had instructed the jury 'that if they were of opinion that the prisoner, at the time when he signed this indorsement, had wilfully misrepresented that he came from Mr. Tomlinson (the defendant's former employer) with intent to defraud him or the bankers, and had no authority from Mr. Tomlinson, they ought to find him guilty.' 2 Car. & K., at 406, 175 Eng.Rep., at 168 (Nisi Prius, Book 6).
7
The statute presently in effect in England, the Forgery Act of 1913, 3 & 4 Geo. 5, c. 27, § 1(2), provides that a document is forged 'if the whole or any material part thereof purports to be made by or on behalf or on account of a person who did not make it nor authorise its making * * *.'
8
'Lord Coke (Third Institute 169) indeed seems to confine it (forgery) in strictness to an act done in the name of another, but this was long ago agreed * * * to be too narrow a definition.' 2 East, Pleas of the Crown, 852 (1803). Hawkins interpreted Coke to say that even the altenation of a deed, by adding a 0 to 500 to make it 5000, 'may more properly be called a false than a forged Writing, because it is not forged in the Name of another, nor his Seal nor Hand counterfeited.' 1 Hawkins, Pleas of the Crown, c. 70, § 2, at 183 (1762).
9
'Forgery by the Common Law seemeth to be an Offence in falsly and fraudulently making or altering any Matter of Record, or any other authentick Matter of a publick Nature * * *.' 1 Hawkins, Pleas of the Crown, c. 70, § 1, p. 182 (1762). 'Also the Notion of Forgery doth not seem so much to consist in the counterfeiting a Man's Hand and Seal, which may often be done innocently, but in the endeavouring to give an Appearance of Truth to a mere Deceit and Falsity, and * * * to impose that upon the World as the solemn Act of another * * *.' Id., § 2, at 183.
10
'Forgery, or the crimen falsi, * * * may with us be defined (at common law) to be, 'the fraudulent making or alteration of a writing to the prejudice of another man's right' * * *.' 4 Blackstone, Commentaries (Christian ed. 1809), 247—248.
11
We do not read the early case of United States v. Osgood, 27 Fed.Cas.No.15,971a, p. 362, decided under the 1823 statute, as pointing to a different conclusion.
12
Ex parte Hibbs, D.C., 26 F. 421; Yeager v. United States, 59 App.D.C 11, 32 F.2d 402; United States v. Tommasello, D.C., 64 F.Supp. 467; Quick Service Box Co. v. St. Paul Mercury Indemnity Co., 7 Cir., 95 F.2d 15.
13
The fact that the original 1823 statute had a proviso disclaiming any purpose to preempt state criminal jurisdiction in respect of matters covered by the Federal Act does not of course, as the Government suggests, indicate that 'forgery' had a wider meaning in federal than under state law. Cf. 18 U.S.C. § 3231, 18 U.S.C.A. § 3231, where a similar general proviso relating to all statutes in Title 18 is now found.
| 01
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370 U.S. 294
82 S.Ct. 1502
8 L.Ed.2d 510
BROWN SHOE CO., Appellant,v.UNITED STATES.
No. 4.
Argued Dec. 6, 1961.
Decided June 25, 1962.
[Syllabus from pages 294-295 intentionally omitted]
Arthur H. Dean, New York City, for appellant.
Sol. Gen. Archibald Cox, for appellee.
Mr. Chief Justice WARREN delivered the opinion of the Court.
I.
1
This suit was initiated in November 1955 when the Government filed a civil action in the United States District Court for the Eastern District of Missouri alleging that a contemplated merger between the G. R. Kinney Company, Inc. (Kinney) and the Brown Shoe Company, Inc. (Brown), through an exchange of Kinney for Brown stock, would violate § 7 of the Clayton Act, 15 U.S.C. § 18, 15 U.S.C.A. § 18. The Act, as amended, provides in pertinent part:
2
'No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital * * * of another corporation engaged also in commerce, where 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.'
3
The complaint sought injunctive relief under § 15 of the Clayton Act, 15 U.S.C. § 25, 15 U.S.C.A. § 25, to restrain consummation of the merger.
4
A motion by the Government for a preliminary injunction pendente lite was denied, and the companies were permitted to merge provided, however, that their businesses be operated separately and that their assets be kept separately identifiable. The merger was then effected on May 1, 1956.
5
In the District Court, the Government contended that the effect of the merger of Brown—the third largest seller of shoes by dollar volume in the United States, a leading manufacturer of men's, Women's, and children's shoes, and a retailer with over 1,230 owned, operated or controlled retail outlets1—and Kinney—the eighth largest company, by dollar volume, among those primarily engaged in selling shoes, itself a large manufacturer of shoes, and a retailer with over 350 retail outlets—'may be substantially to lessen competition or to tend to create a monopoly' by eliminating actual or potential competition in the production of shoes for the national wholesale shoe market and in the sale of shoes at retail in the Nation, by foreclosing competition from 'a market represented by Kinney's retail outlets whose annual sales exceed $42,000,000,' and by enhancing Brown's competitive advantage over other producers, distributors and sellers of shoes. The Government argued that the 'line of commerce' affected by this merger is 'footwear,' or alternatively, that the 'line(s)' are 'men's,' 'women's,' and 'children's' shoes, separately considered, and that the 'section of the country,' within which the anticompetitive effect of the merger is to be judged, is the Nation as a whole, or alternatively, each separate city or city and its immediate surrounding area in which the parties sell shoes at retail.
6
In the District Court, Brown contended that the merger would be shown not to endanger competition if the 'line(s) of commerce' and the 'section(s) of the country' were properly determined. Brown urged that not only were the age and sex of the intended customers to be considered in determining the relevant line of commerce, but that differences in grade of material, quality of workmanship, price, and customer use of shoes resulted in establishing different lines of commerce. While agreeing with the Government that, with regard to manufacturing, the relevant geographic market for assessing the effect of the merger upon competition is the country as a whole, Brown contended that with regard to retailing, the market must vary with economic reality from the central business district of a large city to a 'standard metropolitan area'2 for a smaller community. Brown further contended that, both at the manufacturing level and at the retail level, the shoe industry enjoyed healthy competition and that the vigor of this competition would not, in any event, be diminished by the proposed merger because Kinney manufactured less than 0.5% and retailed less than 2% of the Nation's shoes.
7
The District Court rejected the broadest contentions of both parties. The District Court found that 'there is one group of classifications which is understood and recognized by the entire industry and the public—the classification into 'men's,' 'women's' and 'children's' shoes separately and independently.' On the other hand, '(t)o classify shoes as a whole could be unfair and unjust; to classify them further would be impractical, unwarranted and unrealistic.'
8
Realizing that 'the areas of effective competition for retailing purposes cannot be fixed with mathematical precision,' the District Court found that 'when determined by economic reality, for retailing, a 'section of the country' is a city of 10,000 or more population and its immediate and contiguous surrounding area, regardless of name designation, and in which a Kinney store and a Brown (operated, franchise, or plan)3 store are located.'
9
The District Court rejected the Government's contention that the combining of the manufacturing facilities of Brown and Kinney would substantially lessen competition in the production of men's, women's, or children's shoes for the national wholesale market. However, the District Court did find that the likely foreclosure of other manufacturers from the market represented by Kinney's retail outlets may substantially lessen competition in the manufacturers' distribution of 'men's,' 'women's,' and 'children's' shoes, considered separately, throughout the Nation. The District Court also found that the merger may substantially lessen competition in retailing alone in 'men's,' 'women's,' and 'children's' shoes, considered separately, in every city of 10,000 or more population and its immediate surrounding area in which both a Kinney and a Brown store are located.
10
Brown's contentions here differ only slightly from those made before the District Court. In order fully to understand and appraise these assertions, it is necessary to set out in some detail the District Court's findings concerning the nature of the shoe industry and the place of Brown and Kinney within that industry.
11
The Industry.
12
The District Court found that although domestic shoe production was scattered among a large number of manufacturers, a small number of large companies occupied a commanding position. Thus, while the 24 largest manufacturers produced about 35% of the Nation's shoes, the top 4—International, Endicott-Johnson, Brown (including Kinney) and General Shoe—alone produced approximately 23% of the Nation's shoes or 65% of the production of the top 24.
13
In 1955, domestic production of nonrubber shoes was 509.2 million pairs, of which about 103.6 million pairs were men's shoes, about 271 million pairs were women's shoes, and about 134.6 million pairs were children's shoes.4 The District Court found that men's, women's, and children's shoes are normally produced in separate factories.
14
The public buys these shoes through about 70,000 retail outlets, only 22,000 of which, however, derive 50% or more of their gross receipts from the sale of shoes and are classified as 'shoe stores' by the Census Bureau.5 These 22,000 shoe stores were found generally to sell (1) men's shoes only, (2) women's shoes only, (3) women's and children's shoes, or (4) men's, women's, and children's shoes.
15
The District Court found a 'definite trend' among shoe manufacturers to acquire retail outlets. For example, International Shoe Company had no retail outlets in 1945, but by 1956 had acquired 130; General Shoe Company had only 80 retail outlets in 1945 but had 526 by 1956; Shoe Corporation of America, in the same period increased its retail holdings from 301 to 842; Melville Shoe Company from 536 to 947; and Endicott-Johnson from 488 to 540. Brown, itself, with no retail outlets of its own prior to 1951, had acquired 845 such outlets by 1956. Moreover, between 1950 and 1956 nine independent shoe store chains, operating 1,114 retail shoe stores, were found to have become subsidiaries of these large firms and to have ceased their independent operations.
16
And once the manufacturers acquired retail outlets, the District Court found there was a 'definite trend' for the parent-manufacturers to supply an ever increasing percentage of the retail outlets' needs, thereby foreclosing other manufacturers from effectively competing for the retail accounts. Manufacturer-dominated stores were found to be 'drying up' the available outlets for independent producers.
17
Another 'definite trend' found to exist in the shoe industry was a decrease in the number of plants manufacturing shoes. And there appears to have been a concomitant decrease in the number of firms manufacturing shoes. In 1947, there were 1,077 independent manufacturers of shoes, but by 1954 their number had decreased about 10% to 970.6 Brown Shoe.
18
Brown Shoe was found not only to have been a participant, but also a moving factor, in these industry trends. Although Brown had experimented several times with operating its own retail outlets, by 1945 it had disposed of them all. However, in 1951, Brown again began to seek retail outlets by acquiring the Nation's largest operator of leased shoe departments, Wohl Shoe Company (Wohl), which operated 250 shoe departments in department stores throughout the United States. Between 1952 and 1955 Brown made a number of smaller acquisitions: Wetherby-Kayser Shoe Company (three retail stores), Barnes & Company (two stores), Reilly Shoe Company (two leased shoe departments), Richardson Shoe Store (one store), and Wohl Shoe Company of Dallas (not connected with Wohl) (leased shoe departments in Dallas). In 1954, Brown made another major acquisition: Regal Shoe Corporation which, at the time, operated one manufacturing plant producing men's shoes and 110 retail outlets.
19
The acquisition of these corporations was found to lead to increased sales by Brown to the acquired companies. Thus although prior to Brown's acquisition of Wohl in 1951, Wohl bought from Brown only 12.8% of its total purchases of shoes, it subsequently increased its purchases to 21.4% in 1952 and to 32.6% in 1955. Wetherby-Kayser's purchases from Brown increased from 10.4% before acquisition to over 50% after. Regal, which had previously sold no shoes to Wohl and shoes worth only $89,000 to Brown, in 1956 sold shoes worth $265,000 to Wohl and $744,000 to Brown.
20
During the same period of time, Brown also acquired the stock or assets of seven companies engaged solely in shoe manufacturing. As a result, in 1955, Brown was the fourth largest shoe manufacturer in the country, producing about 25.6 million pairs of shoes or about 4% of the Nation's total footwear production.
21
Kinney.
22
Kinney is principally engaged in operating the largest family-style shoe store chain in the United States. At the time of trial, Kinney was found to be operating over 400 such stores in more than 270 cities. These stores were found to make about 1.2% of all national retail shoe sales by dollar volume. Moreover, in 1955 the Kinney stores sold approximately 8 million pairs of nonrubber shoes or about 1.6% of the national pairage sales of such shoes. Of these sales, approximately 1.1 million pairs were of men's shoes or about 1% of the national pairage sales of men's shoes; approximately 4.2 million pairs were of women's shoes or about 1.5% of the national pairage sales of women's shoes; and approximately 2.7 million pairs were of children's shoes or about 2% of the national pairage sales of children's shoes.7
23
In addition to this extensive retail activity, Kinney owned and operated four plants which manufactured men's, women's, and children's shoes and whose combined output was 0.5% of the national shoe production in 1955, making Kinney the twelfth largest shoe manufacturer in the United States.
24
Kinney stores were found to obtain about 20% of their shoes from Kinney's own manufacturing plants. At the time of the merger, Kinney bought no shoes from Brown; however, in line with Brown's conceded reasons8 for acquiring Kinney, Brown had, by 1957, become the largest outside supplier of Kinney's shoes, supplying 7.9% of all Kinney's needs.
25
It is in this setting that the merger was considered and held to violate § 7 of the Clayton Act. The District Court ordered Brown to divest itself completely of all stock, share capital, assets or other interests it held in Kinney, to operate Kinney to the greatest degree possible as an independent concern pending complete divestiture, to refrain thereafter from acquiring or having any interest in Kinney's business or assets, and to file with the court within 90 days a plan for carrying into effect the divestiture decreed. The District Court also stated it would retain jurisdiction over the cause to enable the parties to apply for such further relief as might be necessary to enforce and apply the judgment. Prior to its submission of a divestiture plan, Brown filed a notice of appeal in the District Court. It then filed a jurisdictional statement in this Court, seeking review of the judgment below as entered.
II.
26
JURISDICTION.
27
Appellant's jurisdictional statement cites as the basis of our jurisdiction over this appeal § 2 of the Expediting Act of February 11, 1903, 32 Stat. 823, as amended, 15 U.S.C. § 29, 15 U.S.C.A. § 29. In a civil antitrust action in which the United States is the complainant that Act provides for a direct appeal to this Court from 'the final judgment of the district court.' (Emphasis supplied.)9 The Government does not contest appellant's claim of jurisdiction; on the contrary, it moved to have the judgment below summarily affirmed, conceding our present jurisdiction to review the merits of that judgment. We deferred ruling on the Government's motion for summary affirmance and noted probable jurisdiction over the appeal. 363 U.S. 825, 80 S.Ct. 1595, 4 L.Ed.2d 1521.10
28
It was suggested from the bench during the oral argument that, since the judgment of the District Court does not include a specific plan for the dissolution of the Brown-Kinney merger, but reserves such a ruling pending the filing of suggested plans for implementing divestiture, the judgment below is not 'final' as contemplated by the Expediting Act. In response to that suggestion, both parties have filed briefs contending that we do have jurisdiction to dispose of the case on the merits in its present posture. However, the mere consent of the parties to the Court's consideration and decision of the case cannot, by itself, confer jurisdiction on the Court. See American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17—18, 71 S.Ct. 534, 541, 95 L.Ed. 702; People's Bank of Belville v. Calhoun, 102 U.S. 256, 260—261, 26 L.Ed. 101; Capron v. Van Noorden, 2 Cranch 126, 127, 2 L.Ed. 229. Therefore, a review of the sources of the Court's jurisdiction is a threshold inquiry appropriate to the disposition of every case that comes before us. Revised Rules of the Supreme Court, 15(1)(b), 23(1)(b), 28 U.S.C.A.; Kesler v. Department of Public Safety, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641; Collins v. Miller, 252 U.S. 364, 40 S.Ct. 347, 64 L.Ed. 616; United States v. More, 3 Cranch 159, 2 L.Ed. 397.
29
The requirement that a final judgment shall have been entered in a case by a lower court before a right of appeal attaches has an ancient history in federal practice, first appearing in the Judiciary Act of 1789.11 With occasional modifications, the requirement has remained a cornerstone of the structure of appeals in the federal courts.12 The Court has adopted essentially practical tests for identifying those judgments which are, and those which are not, to be considered 'final.' See, e.g., Cobbledick v. United States, 309 U.S. 323, 326, 60 S.Ct. 540, 541, 84 L.Ed. 783; Market Street R. Co. v. Railroad Comm., 324 U.S. 548, 552, 65 S.Ct. 770, 773, 89 L.Ed. 1171; Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 69, 68 S.Ct. 972, 977, 92 L.Ed. 1212; Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528; DiBella v. United States, 369 U.S. 121, 124, 129, 82 S.Ct. 654, 656, 7 L.Ed.2d 614; cf. Federal Trade Comm. v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 212, 73 S.Ct. 245, 249, 97 L.Ed. 245; United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 232, 78 S.Ct. 674, 677, 2 L.Ed.2d 721. A pragmatic approach to the question of finality has been considered essential to the achievement of the 'just, speedy, and inexpensive determination of every action':13 the touchstones of federal procedure.
30
In most cases in which the Expediting Act has been cited as the basis of this Court's jurisdiction, the issue of 'finality' has not been raised or discussed by the parties or the Court. On but few occasions have particular orders in suits to which that Act is applicable been considered in the light of claims that they were insufficiently 'final' so as to preclude appeal to this Court. Compare Schine Chain Theatres v. United States, 329 U.S. 686, 67 S.Ct. 367, 91 L.Ed. 602, with Schine Chain Theatres v. United States, 334 U.S. 110, 68 S.Ct. 947, 92 L.Ed. 1245. The question has generally been passed over without comment in adjudications on the merits. While we are not bound by previous exercises of jurisdiction in cases in which our power to act was not questioned but was passed sub silentio, United States v. Tucker Truck Lines, Inc., 344 U.S. 33, 38, 73 S.Ct. 67, 69, 97 L.Ed. 54; United States ex rel. Arant v. Lane, 245 U.S. 166, 170, 38 S.Ct. 94, 96, 62 L.Ed. 223, neither should we disregard the implications of an exercise of judicial authority assumed to be proper for over 40 years.14 Cf. Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 379—380, 69 S.Ct. 606, 612, 93 L.Ed. 741; Radio Station WOW v. Johnson, 326 U.S. 120, 125—126, 65 S.Ct. 1475, 1478, 89 L.Ed. 2092.
31
We think the decree of the District Court in this case had sufficient indicia of finality for us to hold that the judgment is properly appealable at this time. We note, first, that the District Court disposed on the entire complaint filed by the Government. Every prayer for relief was passed upon. Full divestiture by Brown of Kinney's stock and assets was expressly required. Appellant was permanently enjoined from acquiring or having any further interest in the business, stock or assets of the other defendant in the suit. The single provision of the judgment by which its finality may be questioned is the one requiring appellant to propose in the immediate future a plan for carrying into effect the court's order of divestiture. However, when we reach the merits of, and affirm, the judgment below, the sole remaining task for the District Court will be its acceptance of a plan for full divestiture, and the supervision of the plan so accepted. Further rulings of the District Court in administering its decree, facilitated by the fact that the defendants below have been required to maintain separate books pendente lite, are sufficiently independent of, and subordinate to, the issues presented by this appeal to make the case in its present posture a proper one for review now.15 Appellant here does not attack the full divestiture ordered by the District Court as such; it is appellant's contention that under the facts of the case, as alleged and proved by the Government, no order of divestiture could have been proper. The propriety of divestiture was considered below and is disputed here on an 'all or nothing' basis. It is ripe for review now, and will, thereafter, be foreclosed. Repetitive judicial consideration of the same question in a single suit will not occur here. Cf. Radio Station WOW v. Johnson, supra, 326 U.S. at 127, 65 S.Ct. 1480; Catlin v. United States, 324 U.S. 229, 233—234, 65 S.Ct. 631, 633, 89 L.Ed. 911; Cobbledick v. United States, supra, 309 U.S. at 325, 330, 60 S.Ct. 541.
32
A second consideration supporting our view is the character of the decree still to be entered in this suit. It will be an order of full divestiture. Such an order requires careful, and often extended, negotiation and formulation. This process does not take place in a vacuum, but, rather, in a changing market place, in which buyers and bankers must be found to accomplish the order of forced sale. The unsettling influence of uncertainty as to the affirmance of the initial, underlying decision compelling divestiture would only make still more difficult the task of assuring expeditious enforcement of the antitrust laws. The delay in withholding review of any of the issues in the case until the details of a divestiture had been approved by the District Court and reviewed here could well mean a change in market conditions sufficiently pronounced to render impractical or otherwise unenforceable the very plan of asset disposition for which the litigation was held. The public interest, as well as that of the parties, would lose by such procedure.
33
Lastly, holding the decree of the District Court in the instant case less than 'final' and, thus, not appealable, would require a departure from a settled course of the Court's practice. It has consistently reviewed antitrust decrees contemplating either future divestiture or other comparable remedial action prior to the formulation and entry of the precise details of the relief ordered. No instance has been found in which the Court has reviewed a case following a divestiture decree such as the one we are asked to consider here, in which the party subject to that decree has later brought the case back to this Court with claims of error in the details of the divestiture finally approved.16 And only two years ago, we were unanimous in accepting jurisdiction, and in affirming the judgment of a District Court similar to the one entered here, in the only case under amended § 7 of the Clayton Act brought before us at a juncture comparable to the instant litigation. See Maryland & Virginia Milk Producers Ass'n v. United States, 362 U.S. 458, 472 473, 80 S.Ct. 847, 856, 4 L.Ed.2d 880.17 A fear of piecemeal appeals because of our adherence to existing procedure can find no support in history. Thus, the substantial body of precedent for accepting jurisdiction over this case in its present posture supports the practical considerations previously discussed. We believe a contrary result would be inconsistent with the very purposes for which the Expediting Act was passed and that gave it its name.
III.
34
LEGISLATIVE HISTORY.
35
This case is one of the first to come before us in which the Government's complaint is based upon allegations that the appellant has violated § 7 of the Clayton Act, as that section was amended in 1950.18 The amendments adopted in 1950 culminated extensive efforts over a number of years, on the parts of both the Federal Trade Commission and some members of Congress, to secure revision of a section of the antitrust laws considered by many observers to be ineffective in its then existing form. Sixteen bills to amend § 7 during the period 1943 to 1949 alone were introduced for consideration by the Congress, and full public hearings on proposed amendments were held in three separate sessions.19 In the light of this extensive legislative attention to the measure, and the broad, general language finally selected by Congress for the expression of its will, we think it appropriate to review the history of the amended Act in determining whether the judgment of the court below was consistent with the intent of the legislature. See United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 591—592, 77 S.Ct. 872, 876, 1 L.Ed.2d 1057; Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 390—395, 71 S.Ct. 745, 748, 95 L.Ed. 1035; Federal Trade Comm. v. Morton Salt Co., 334 U.S. 37, 43—46, 49, 68 S.Ct. 822, 826, 92 L.Ed. 1196; Corn Products Refining Co. v. Federal Trade Comm., 324 U.S. 726, 734—737, 65 S.Ct. 961, 965, 89 L.Ed. 1320.
36
As enacted in 1914, § 7 of the original Clayton Act prohibited the acquisition by one corporation of the stock of another corporation when such acquisition would result in a substantial lessening of competition between the acquiring and the acquired companies, or tend to create a monopoly in any line of commerce. The Act did not, by its explicit terms, or as construed by this Court, bar the acquisition by one corporation of the assets of another.20 Nor did it appear to preclude the acquisition of stock in any corporation other than a direct competitor.21 Although proponents of the 1950 amendments to the Act suggested that the terminology employed in these provisions was the result of accident or an unawareness that the acquisition of assets could be as inimical to competition as stock acquisition, a review of the legislative history of the original Clayton Act fails to support such views.22 The possibility of asset acquisition was discussed,23 but was not considered important to an Act then conceived to be directed primarily at the development of holding companies and at the secret acquisition of competitors through the purchase of all or parts of such competitors' stock.24
37
It was, however, not long before the Federal Trade Commission recognized deficiencies in the Act as first enacted. Its Annual Reports frequently suggested amendments, principally along two lines: first, to 'plug the loophole' exempting asset acquisitions from coverage under the Act, and second, to require companies proposing a merger to give the Commission prior notification of their plans.25 The Final Report of the Temporary National Economic Committee also recommended changes focusing on these two proposals.26 Hearings were held on some bills incorporating either or both of these changes but, prior to the amendments adopted in 1950, none reached the floor of Congress of plenary consideration. Although the bill that was eventually to become amended § 7 was confined to embracing within the Act's terms the acquisition of assets as well as stock, in the course of the hearings conducted in both the Eightieth and Eighty-first Congresses, a more far-reaching examination of the purposes and provisions of § 7 was undertaken. A review of the legislative history of these amendments provides no unmistakably clear indication of the precise standards the Congress wished the Federal Trade Commission and the courts to apply in judging the legality of particular mergers. However, sufficient expressions of a consistent point of view may be found in the hearings, committee reports of both the House and Senate and in floor debate to provide those charged with enforcing the Act with a usable frame of reference within which to evaluate any given merger.
38
The dominant theme pervading congressional consideration of the 1950 amendments was a fear of what was considered to be a rising tide of economic concentration in the American economy. Apprehension in this regard was bolstered by the publication in 1948 of the Federal Trade Commission's study on corporate mergers. Statistics from this and other current studies were cited as evidence of the danger to the American economy in unchecked corporate expansions through mergers.27 Other considerations cited in support of the bill were the desirability of retaining 'local control' over industry and the protection of small businesses.28 Throughout the recorded discussion may be found examples of Congress' fear not only of accelerated concentration of economic power on economic grounds, but also of the threat to other values a trend toward concentration was thought to pose.
39
What were some of the factors, relevant to a judgment as to the validity of a given merger, specifically discussed by Congress in redrafting § 7?
40
First, there is no doubt that Congress did wish to 'plug the loophole' and to include within the coverage of the Act the acquisition of assets no less than the acquisition of stock.29
41
Second, by the deletion of the 'acquiring-acquired' language in the original text,30 it hoped to make plain that § 7 applied not only to mergers between actual competitors, but also to vertical and conglomerate mergers whose effect may tend to lessen competition in any line of commerce in any section of the country.31
42
Third, it is apparent that a keystone in the erection of a barrier to what Congress saw was the rising tide of economic concentration, was its provision of authority for arresting mergers at a time when the trend to a lessening of competition in a line of commerce was still in its incipiency. Congress saw the process of concentration in American business as a dynamic force; it sought to assure the Federal Trade Commission and the courts the power to brake this force at its outset and before it gathered momentum.32
43
Fourth, and closely related to the third, Congress rejected, as inappropriate to the problem it sought to remedy, the application to § 7 cases of the standards for judging the legality of business combinations adopted by the courts in dealing with cases arising under the Sherman Act, and which may have been applied to some early cases arising under original § 7.33
44
Fifth, at the same time that it sought to create an effective tool for preventing all mergers having demonstrable anti-competitive effects, Congress recognized the stimulation to competition that might flow from particular mergers. When concern as to the Act's breadth was expressed, supporters of the amendments indicated that it would not impede, for example, a merger between two small companies to enable the combination to compete more effectively with larger corporations dominating the relevant market, nor a merger between a corporation which is financially healthy and a failing one which no longer can be a vital competitive factor in the market.34 The deletion of the word 'community' in the original Act's description of the relevant geographic market is another illustration of Congress' desire to indicate that its concern was with the adverse effects of a given merger on competition only in an economically significant 'section' of the country.35 Taken as a whole, the legislative history illuminates congressional concern with the protection of competition, not competitors, and its desire to restrain mergers only to the extent that such combinations may tend to lessen competition.
45
Sixth, Congress neither adopted nor rejected specifically any particular tests for measuring the relevant markets, either as defined in terms of product or in terms of geographic locus of competition, within which the anti-competitive effects of a merger were to be judged. Nor did it adopt a definition of the word 'substantially,' whether in quantitative terms of sales or assets or market shares or in designated qualitative terms, by which a merger's effects on competition were to be measured.36
46
Seventh, while providing no definite quantitative or qualitative tests by which enforcement agencies could gauge the effects of a given merger to determine whether it may 'substantially' lessen competition or tend toward monopoly, Congress indicated plainly that a merger had to be functionally viewed, in the context of its particular industry.37 That is, whether the consolidation was to take place in an industry that was fragmented rather than concentrated, that had seen a recent trend toward domination by a few leaders or had remained fairly consistent in its distribution of market shares among the participating companies, that had experienced easy access to markets by suppliers and easy access to suppliers by buyers or had witnessed foreclosure of business, that had witnessed the ready entry of new competition or the erection of barriers to prospective entrants, all were aspects, varying in importance with the merger under consideration, which would properly be taken into account.38
47
Eighth, Congress used the words 'may be substantially to lessen competition' (emphasis supplied), to indicate that its concern was with probabilities, not certainties.39 Statutes existed for dealing with clear-cut menaces to competition; no statute was sought for dealing with ephemeral possibilities. Mergers with a probable anticompetitive effect were to be proscribed by this Act.
48
It is against this background that we return to the case before us.
IV.
THE VERTICAL ASPECTS OF THE MERGER
49
Economic arrangements between companies standing in a supplier-customer relationship are characterized as 'vertical.' The primary vice of a vertical merger or other arrangement tying a customer to a supplier is that, by foreclosing the competitors of either party from a segment of the market otherwise open to them, the arrangement may act as a 'clog on competition,' Standard Oil Co. of California v. United States, 337 U.S. 293, 314, 69 S.Ct. 1051, 1062, 93 L.Ed. 1371, which 'deprive(s) * * * rivals of a fair opportunity to compete.'40 H.R.Rep. No. 1191, 81st Cong., 1st Sess. 8. Every extended vertical arrangement by its very nature, for at least a time, denies to competitors of the supplier the opportunity to compete for part or all of the trade of the customer-party to the vertical arrangement. However, the Clayton Act does not render unlawful all such vertical arrangements, but forbids only those whose effect 'may be substantially to lessen competition, or to tend to create a monopoly' 'in any line of commerce in any section of the country.' Thus, as we have previously noted,
50
'(d)etermination of the relevant market is a necessary predicate to a finding of a violation of the Clayton Act because the threatened monopoly must be one which will substantially lessen competition 'within the area of effective competition.' Substantiality can be determined only in terms of the market affected.'41
51
The 'area of effective competition' must be determined by reference to a product market (the 'line of commerce') and a geographic market (the 'section of the country'). The Product Market.
52
The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it.42 However, within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes. United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 593—595, 57 S.Ct. 872, 877, 1 L.Ed.2d 1057. The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product's peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.43 Because § 7 of the Clayton Act prohibits any merger which may substantially lessen competition 'in any line of commerce' (emphasis supplied), it is necessary to examine the effects of a merger in each such economically significant submarket to determine if there is a reasonable probability that the merger will substantially lessen competition. If such a probability is found to exist, the merger is proscribed.44
53
Applying these considerations to the present case, we conclude that the record supports the District Court's finding that the relevant lines of commerce are men's, women's, and children's shoes. These product lines are recognized by the public; each line is manufactured in separate plants; each has characteristics peculiar to itself rendering it generally noncompetitive with the others; and each is, of course, directed toward a distinct class of customers.
54
Appellant, however, contends that the District Court's definitions fail to recognize sufficiently 'price/quality' and 'age/sex' distinctions in shoes. Brown argues that the predominantly medium-priced shoes which it manufactures occupy a product market different from the predominantly low-priced shoes which Kinney sells. But agreement with that argument would be equivalent to holding that medium-priced shoes do not compete with low-priced shoes. We think the District Court properly found the facts to be otherwise. It would be unrealistic to accept Brown's contention that, for example, men's shoes selling below $8.99 are in a different product market from those selling above.$9.00.
55
This is not to say, however, that 'price/quality' differences, where they exist, are unimportant in analyzing a merger; they may be of importance in determining the likely effect of a merger. But the boundaries of the relevant market must be drawn with sufficient breadth to include the competing products of each of the merging companies and to recognize competition where, in fact, competition exists. Thus we agree with the District Court that in this case a further division of product lines based on 'price/quality' differences would be 'unrealistic.' Brown's contention that the District Court's product market definitions should have recognized further 'age/sex' distinctions raises a different problem. Brown's sharpest criticism is directed at the District Court's finding that children's shoes constituted a single line of commerce. Brown argues, for example, that 'a little boy does not wear a little girl's black patent leather pump' and that '(a) male baby cannot wear a growing boy's shoes.' Thus Brown argues that 'infants' and babies" shoes, 'misses' and children's' shoes and 'youths' and boys" shoes should each have been considered a separate line of commerce. Assuming, arguendo, that little boys' shoes, for example, do have sufficient peculiar characteristics to constitute one of the markets to be used in analyzing the effects of this merger, we do not think that in this case the District Court was required to employ finer 'age/sex' distinctions then those recognized by its classifications of 'men's,' 'women's,' and 'children's' shoes. Further division does not aid us in analyzing the effects of this merger. Brown manufactures about the same percentage of the Nation's children's shoes (5.8%) as it does of the Nation's youths' and boys' shoes (6.5%), of the Nation's misses' and children's shoes (6.0%) and of the Nation's infants' and babies' shoes (4.9%). Similarly, Kinney sells about the same percentage of the Nation's children's shoes (2%) as it does of the Nation's youths' and boys' shoes (3.1%), of the Nation's misses' and children's shoes (1.9%), and of the Nation's infants' and babies' shoes (1.5%). Appellant can point to no advantage it would enjoy were finer divisions than those chosen by the District Court employed. Brown manufactures significant, comparable quantities of virtually every type of nonrubber men's, women's, and children's shoes, and Kinney sells such quantities of virtually every type of men's, women's, and children's shoes. Thus, whether considered separately or together, the picture of this merger is the same. We, therefore, agree with the District Court's conclusion that in the setting of this case to subdivide the shoe market further on the basis of 'age/sex' distinctions would be 'impractical' and 'unwarranted.'
56
The Geographic Market.
57
We agree with the parties and the District Court that insofar as the vertical aspect of this merger is concerned, the relevant geographic market is the entire Nation. The relationships of product value, bulk, weight and consumer demand enable manufacturers to distribute their shoes on a nationwide basis, as Brown and Kinney, in fact, do. The anticompetitive effects of the merger are to be measured within this range of distribution.
58
The Probable Effect of the Merger.
59
Once the area of effective competition affected by a vertical arrangement has been defined, an analysis must be made to determine if the effect of the arrangement 'may be substantially to lessen competition, or to tend to create a monopoly' in this market.
60
Since the diminution of the vigor of competition which may stem from a vertical arrangement results primarily from a foreclosure of a share of the market otherwise open to competitors, an important consideration in determining whether the effect of a vertical arrangement 'may be substantially to lessen competition, or to tend to create a monopoly' is the size of the share of the market foreclosed. However, this factor will seldom be determinative. If the share of the market foreclosed is so large that it approaches monopoly proportions, the Clayton Act will, of course, have been violated; but the arrangement will also have run afoul of the Sherman Act.45 And the legislative history of § 7 indicates clearly that the tests for measuring the legality of any particular economic arrangement under the Clayton Act are to be less stringent than those used in applying the Sherman Act.46 On the other hand, foreclosure of a de minimis share of the market will not tend 'substantially to lessen competition.'
61
Between these extremes, in cases such as the one before us, in which the foreclosure is neither of monopoly nor de minimis proportions, the percentage of the market foreclosed by the vertical arrangement cannot itself be decisive. In such cases, it becomes necessary to undertake an examination of various economic and historical factors in order to determine whether the arrangement under review is of the type Congress sought to proscribe.47
62
A most important such factor to examine is the very nature and purpose of the arrangement.48 Congress not only indicated that 'the tests of illegality (under § 7) are intended to be similar to those which the courts have applied in interpreting the same language as used in other sections of the Clayton Act,'49 but also chose for § 7 language virtually identical to that of § 3 of the Clayton Act, 15 U.S.C. § 14, 15 U.S.C.A. § 14, which had been interpreted by this Court to require an examination of the interdependence of the market share foreclosed by, and the economic purpose of, the vertical arrangement. Thus, for example, if a particular vertical arrangement, considered under § 3, appears to be a limited term exclusive-dealing contract, the market foreclosure must generally be significantly greater than if the arrangement is a tying contract before the arrangement will be held to have violated the Act. Compare Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 81 S.Ct. 623, 5 L.Ed.2d 580, and Standard Oil Co. of California v. United States, supra, with International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20.50 The reason for this is readily discernible. The usual tying contract forces the customer to take a product or brand he does not necessarily want in order to secure one which he does desire. Because such an arrangement is inherently anticompetitive, we have held that its use by an established company is likely 'substantially to lessen competition' although only a relatively small amount of commerce is affected. International Salt Co. v. United States, supra. Thus, unless the tying device is employed by a small company in an attempt to break into a market, cf. Harley-Davidson Motor Co., 50 F.T.C. 1047, 1066, the use of a tying device can rarely51 be harmonized with the strictures of the antitrust laws, which are intended primarily to preserve and stimulate competition. See Standard Oil Co. of California v. United States, supra, 337 U.S. at 305—306, 69 S.Ct. 1058. On the other hand, requirement contracts are frequently negotiated at the behest of the customer who has chosen the particular supplier and his product upon the basis of competitive merit. See, e.g., Tampa Electric Co. v. Nashville Coal Co., supra. Of course, the fact that requirement contracts are not inherently anticompetitive will not save a particular agreement if, in fact, it is likely 'substantially to lessen competition, or to tend to create a monopoly.' E.g., Standard Oil Co. of California v. United States, supra. Yet a requirement contract may escape censure if only a small share of the market is involved, if the purpose of the agreement is to insure to the customer a sufficient supply of a commodity vital to the customer's trade or to insure to the supplier a market for his output and if there is no trend toward concentration in the industry. Tampa Electric Co. v. Nashville Coal Co., supra. Similar considerations are pertinent to a judgment under § 7 of the Act.
63
The importance which Congress attached to economic purpose is further demonstrated by the Senate and House Reports on H.R. 2734, which evince an intention to preserve the 'failing company' doctrine of International Shoe Co. v. Federal Trade Comm., 280 U.S. 291, 50 S.Ct. 89, 74 L.Ed. 431.52 Similarly, Congress foresaw that the merger of two large companies or a large and a small company might violate the Clayton Act while the merger of two small companies might not, although the share of the market foreclosed be identical, if the purpose of the small companies is to enable them in combination to compete with larger corporations dominating the market.53
64
The present merger involved neither small companies nor failing companies. In 1955, the date of this merger, Brown was the fourth largest manufacturer in the shoe industry with sales of approximately 26 million pairs of shoes and assets of over $72,000,000 while Kinney had sales of about 8 million pairs of shoes and assets of about $18,000,000. Not only was Brown one of the leading manufacturers of men's, women's, and children's shoes, but Kinney, with over 350 retail outlets, owned and operated the largest independent chain of family shoe stores in the Nation. Thus, in this industry, no merger between a manufacturer and an independent retailer could involve a larger potential market foreclosure. Moreover, it is apparent both from past behavior of Brown and from the testimony of Brown's President,54 that Brown would use its ownership of Kinney to force Brown shoes into Kinney stores. Thus, in operation this vertical arrangement would be quite analogous to one involving a tying clause.55
65
Another important factor to consider is the trend toward concentration in the industry.56 It is true, of course, that the statute prohibits a given merger only if the effect of that merger may be substantially to lessen competition.57 But the very wording of § 7 requires a prognosis of the probable future effect of the merger.58
66
The existence of a trend toward vertical integration, which the District Court found, is well substantiated by the record. Moreover, the court found a tendency of the acquiring manufacturers to become increasingly important sources of supply for their acquired outlets. The necessary corollary of these trends is the foreclosure of independent manufacturers from markets otherwise open to them. And because these trends are not the product of accident but are rather the result of deliberate policies of Brown and other leading shoe manufacturers, account must be taken of these facts in order to predict the probable future consequences of this merger. It is against this background of continuing concentration that the present merger must be viewed.
67
Brown argues, however, that the shoe industry is at present composed of a large number of manufacturers and retailers, and that the industry is dynamically competitive. But remaining vigor cannot immunize a merger if the trend in that industry is toward oligopoly. See Pillsbury Mills, Inc., 50 F.T.C. 555, 573. It is the probable effect of the merger upon the future as well as the present which the Clayton Act commands the courts and the Commission to examine.59
68
Moreover, as we have remarked above, not only must we consider the probable effects of the merger upon the economics of the particular markets affected but also we must consider its probable effects upon the economic way of life sought to be preserved by Congress.60 Congress was desirous of preventing the formation of further oligopolies with their attendant adverse effects upon local control of industry and upon small business. Where an industry was composed of numerous independent units, Congress appeared anxious to preserve this structure. The Senate Report, quoting with approval from the Federal Trade Commission's 1948 report on the merger movement, states explicitly that amended § 7 is addressed, inter alia, to the following problem:
69
'Under the Sherman Act, an acquisition is unlawful if it creates a monopoly or constitutes an attempt to monopolize. Imminent monopoly may appear when one large concern acquires another, but it is unlikely to be perceived in a small acquisition by a large enterprise. As a large concern grows through a series of such small acquisitions, its accretions of power are individually so minute as to make it difficult to use the Sherman Act tests against them * * *.
70
'Where several large enterprises are extending their power by successive small acquisitions, the cumulative effect of their purchases may be to convert an industry from one of intense competition among many enterprises to one in which three or four large concerns produce the entire supply.' S.Rep. No. 1775, 81st Cong., 2d Sess. 5, U.S.Code Cong. and Adm.News 1950, p. 4297.61 And see H.R.Rep. No. 1191, 81st Cong., 1st Sess. 8.
71
The District Court's findings, and the record facts, many of them set forth in Part I of this opinion, convince us that the shoe industry is being subjected to just such a cumulative series of vertical mergers which, if left unchecked, will be likely 'substantially to lessen competition.'
72
We reach this conclusion because the trend toward vertical integration in the shoe industry, when combined with Brown's avowed policy of forcing its own shoes upon its retail subsidiaries, may foreclose competition from a substantial share of the markets for men's, women's, and children's shoes, without producing any countervailing competitive, economic, or social advantages.
V.
THE HORIZONTAL ASPECTS OF THE MERGER.
73
An economic arrangement between companies performing similar functions in the production or sale of comparable goods or services is characterized as 'horizontal.' The effect on competition of such an arrangement depends, of course, upon its character and scope. Thus, its validity in the face of the antitrust laws will depend upon such factors as: the relative size and number of the parties to the arrangement; whether it allocates shares of the market among the parties; whether it fixes prices at which the parties will sell their product; or whether it absorbs or insulates competitors.62 Where the arrangement effects a horizontal merger between companies occupying the same product and geographic market, whatever competition previously may have existed in that market between the parties to the merger is eliminated. Section 7 of the Clayton Act, prior to its amendment, focused upon this aspect of horizontal combinations by proscribing acquisitions which might result in a lessening of competition between the acquiring and the acquired companies.63 The 1950 amendments made plain Congress' intent that the validity of such combinations was to be gauged on a broader scale: their effect on competition generally in an economically significant market.
74
Thus, again, the proper definition of the market is a 'necessary predicate' to an examination of the competition that may be affected by the horizontal aspects of the merger. The acquisition of Kinney by Brown resulted in a horizontal combination at both the manufacturing and retailing levels of their businesses. Although the District Court found that the merger of Brown's and Kinney's manufacturing facilities was economically too insignificant to come within the prohibitions of the Clayton Act, the Government has not appealed from this portion of the lower court's decision. Therefore, we have no occasion to express our views with respect to that finding. On the other hand, appellant does contest the District Court's finding that the merger of the companies' retail outlets may tend substantially to lessen competition. The Product Market.
75
Shoes are sold in the United States in retail shoe stores and in shoe departments of general stores. These outlets sell: (1) men's shoes, (2) women's shoes, (3) women's or children's shoes, or (4) men's, women's or children's shoes. Prior to the merger, both Brown and Kinney sold their shoes in competition with one another through the enumerated kinds of outlets characteristic of the industry.
76
In Part IV of this opinion we hold that the District Court correctly defined men's, women's, and children's shoes as the relevant lines of commerce in which to analyze the vertical aspects of the merger. For the reasons there stated we also hold that the same lines of commerce are appropriate for considering the horizontal aspects of the merger.
77
The Geographic Market.
78
The criteria to be used in determining the appropriate geographic market are essentially similar to those used to determine the relevant product market. See S.Rep.No.1775, 81st Cong., 2d Sess. 5—6; United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 593, 77 S.Ct. 872, 877, 1 L.Ed.2d 1057. Moreover, just as a product submarket may have § 7 significance as the proper 'line of commerce,' so may a geographic submarket be considered the appropriate 'section of the country.' Erie Sand & Gravel Co. v. Federal Trade Comm., 291 F.2d 279, 283 (C.A.3d Cir.); United States v. Bethlehem Steel Corp., 168 F.Supp. 576, 595—603 (D.C.S.D.N.Y.). Congress prescribed a pragmatic, factual approach to the definition of the relevant market and not a formal, legalistic one. The geographic market selected must, therefore, both 'correspond to the commercial realities'64 of the industry and be economically significant. Thus, although the geographic market in some instances may encompass the entire Nation, under other circumstances it may be as small as a single metropolitan area. United States v. Columbia Pictures Corp., 189 F.Supp. 153, 193—194 (D.C.S.D.N.Y.); United States v. Maryland & Virginia Milk Producers Ass'n, 167 F.Supp. 799 (D.C.D.C.), affirmed, 362 U.S. 458, 80 S.Ct. 847, 4 L.Ed. 880. The fact that two merging firms have competed directly on the horizontal level in but a fraction of the geographic markets in which either has operated, does not, in itself, place their merger outside the scope of § 7. That section speaks of 'any * * * section of the country,' and if anticompetitive effects of a merger are probable in 'any' significant market, the merger—at least to that extent—is proscribed.65
79
The parties do not dispute the findings of the District Court that the Nation as a whole is the relevant geographic market for measuring the anticompetitive effects of the merger viewed vertically or of the horizontal merger of Brown's and Kinney's manufacturing facilities. As to the retail level, however, they disagree.
80
The District Court found that the effects of this aspect of the merger must be analyzed in every city with a population exceeding 10,000 and its immediate contiguous surrounding territory in which both Brown and Kinney sold shoes at retail through stores they either owned or controlled.66 By this definition of the geographic market, less than one-half of all the cities in which either Brown or Kinney sold shoes through such outlets are represented. The appellant recognizes that if the District Court's characterization of the relevant market is proper, the number of markets in which both Brown and Kinney have outlets is sufficiently numerous so that the validity of the entire merger is properly judged by testing its effects in those markets. However, it is appellant's contention that the areas of effective competition in shoe retailing were improperly defined by the District Court. It claims that such areas should, in some cases, be defined so as to include only the central business districts of large cities, and in others, so as to encompass the 'standard metropolitan areas' within which smaller communities are found. It argues that any test failing to distinguish between these competitive situations is improper.
81
We believe, however, that the record fully supports the District Court's findings that shoe stores in the outskirts of cities compete effectively with stores in central downtown areas, and that while there is undoubtedly some commercial intercourse between smaller communities within a single 'standard metropolitan area,' the most intense and important competition in retail sales will be confined to stores within the particular communities in such an area and their immediate environs.67
82
We therefore agree that the District Court properly defined the relevant geographic markets in which to analyze this merger as those cities with a population exceeding 10,000 and their environs in which both Brown and Kinney retailed shoes through their own outlets. Such markets are large enough to include the downtown shops and suburban shopping centers in areas contiguous to the city, which are the important competitive factors, and yet are small enough to exclude stores beyond the immediate environs of the city, which are of little competitive significance.
83
The Probable Effect of the Merger.
84
Having delineated the product and geographic markets within which the effects of this merger are to be measured, we turn to an examination of the District Court's finding that as a result of the merger competition in the retailing of men's, women's and children's shoes may be lessened substantially in those cities in which both Brown and Kinney stores are located. We note, initially, that appellant challenges this finding on a number of grounds other than those discussed above and on grounds independent of the critical question of whether competition may, in fact, be lessened. Thus, Brown objects that the District Court did not examine the competitive picture in each line of commerce and each section of the country it had defined as appropriate. It says the Court erred in failing to enter findings with respect to each relevant city assessing the anticompetitive effect of the merger on the retail sale, of, for example, men's shoes in Council Bluffs, men's shoes in Texas City, women's shoes in Texas City and children's shoes in St. Paul. Even assuming a representative sample could properly be used, Brown also objects that the District Court's detailed analysis of competition in shoe retailing was limited to a single city—St. Louis—a city in which Kinney did not operate. The appellant says this analysis could not be sufficiently representative to establish a standard image of the shoe trade which could be applied to each of the more than 100 cities in which Brown and Kinney sold shoes, particularly as some of those cities were much smaller than St. Louis, others were larger, some were in different climates and others were in areas having different median per capita incomes.
85
However, we believe the record is adequate to support the findings of the District Court. While it is true that the court concentrated its attention on the structure of competition in the city in which it sat and as to which detailed evidence was most readily available, it also heard witnesses from no less than 40 other cities in which the parties to the merger operated. The court was careful to point out that it was on the basis of all the evidence that it reached its conclusions concerning the boundaries of the relevant markets and the merger's effects on competition within them. We recognize that variations of size climate and wealth as enumerated by Brown exist in the relevant markets. However, we agree with the court below that the markets with respect to which evidence was received provide a fair sampling of all the areas in which the impact of this merger is to be measured. The appellant has not shown how the variables it has mentioned could affect the structure of competition within any particular market so as to require a change in the conclusions drawn by the District Court. Each competitor within a given market is equally affected by these factors, even though the city in which he does business may differ from St. Louis in size, climate or wealth. Thus, we believe the District Court properly reached its conclusions on the basis of the evidence available to it. There is no reason to protract already complex antitrust litigation by detailed analyses of peripheral economic facts, if the basic issues of the case may be determined through study of a fair sample.68
86
In the case before us, not only was a fair sample used to demonstrate the soundness of the District Court's conclusions, but evidence of record fully substantiates those findings as to each relevant market. An analysis of undisputed statistics of sales of shoes in the cities in which both Brown and Kinney all shoes at retail, separated into the appropriate lines of commerce, provides a persuasive factual foundation upon which the required prognosis of the merger's effects may be built. Although Brown objects to some details in the Government's computation used in drafting these exhibits, appellant cannot deny the correctness of the more general picture they reveal.69 We have appended the exhibits to this opinion. They show, for example, that during 1955 in 32 separate cities, ranging in size and location from Topeka, Kansas, to Batavia, New York, and Hobbs, New Mexico, the combined share of Brown and Kinney sales of women's shoes (by unit volume) exceeded 20%.70 In 31 cities—some the same as those used in measuring the effect of the merger in the women's line—the combined share of children's shoes sales exceeded 20%; in 6 cities their share exceeded 40%. In Dodge City, Kansas, their combined share of the market for women's shoes was over 57%; their share of the children's shoe market in that city was 49%. In the 7 cities in which Brown's and Kinney's combined shares of the market for women's shoes were greatest (ranging from 33% to 57%) each of the parties alone, prior to the merger, had captured substantial portions of those markets (ranging from 13% to 34%); the merger intensified this existing concentration. In 118 separate cities the combined shares of the market of Brown and Kinney in the sale of one of the relevant lines of commerce exceeded 5%. In 47 cities, their share exceeded 5% in all three lines.
87
The market share which companies may control by merging is one of the most important factors to be considered when determining the probable effects of the combination on effective competition in the relevant market.71 In an industry as fragmented as shoe retailing, the control of substantial shares of the trade in a city may have important effects on competition. If a merger achieving 5% control were now approved, we might be required to approve future merger efforts by Brown's competitors seeking similar market shares. The oligopoly Congress sought to avoid would then be furthered and it would be difficult to dissolve the combinations previously approved. Furthermore, in this fragmented industry, even if the combination controls but a small share of a particular market, the fact that this share is held by a large national chain can adversely affect competition. Testimony in the record from numerous independent retailers, based on their actual experience in the market, demonstrates that a strong, national chain of stores can insulate selected outlets from the vagaries of competition in particular locations and that the large chains can set and alter styles in footwear to an extent that renders the independents unable to maintain competitive inventories. A third significant aspect of this merger is that it creates a large national chain which is integrated with a manufacturing operation. The retail outlets of integrated companies, by eliminating wholesalers and by increasing the volume of purchases from the manufacturing division of the enterprise, can market their own brands at prices below those of competing independent retailers. Of course, some of the results of large integrated or chain operations are beneficial to consumers. Their expansion is not rendered unlawful by the mere fact that small independent stores may be adversely affected. It is competition, not competitors, which the Act protects. But we cannot fail to recognize Congress' desire to promote competition through the protection of viable, small, locally owned business. Congress appreciated that occasional higher costs and prices might result from the maintenance of fragmented industries and markets. It resolved these competing considerations in favor of decentralization. We must give effect to that decision.
88
Other factors to be considered in evaluating the probable effects of a merger in the relevant market lend additional support to the District Court's conclusion that this merger may substantially lessen competition. One such factor is the history of tendency toward concentration in the industry.72 As we have previously pointed out, the shoe industry has, in recent years, been a prime example of such a trend. Most combinations have been between manufacturers and retailers, as each of the larger producers has sought to capture an increasing number of assured outlets for its wares. Although these mergers have been primarily vertical in their aim and effect, to the extent that they have brought ever greater numbers of retail outlets within fewer and fewer hands, they have had an additional important impact on the horizontal plane. By the merger in this case, the largest single group of retail stores still independent of one of the large manufacturers was absorbed into an already substantial aggregation of more or less controlled retail outlets. As a result of this merger, Brown moved into second place nationally in terms of retail stores directly owned. Including the stores on its franchise plan, the merger placed under Brown's control almost 1,600 shoe outlets, or about 7.2% of the Nation's retail 'shoe stores' as defined by the Census Bureau,73 and 2.3% of the Nation's total retail shoe outlets.74 We cannot avoid the mandate of Congress that tendencies toward concentration in industry are to be curbed in their incipiency, particularly when those tendencies are being accelerated through giant steps striding across a hundred cities at a time. In the light of the trends in this industry we agree with the Government and the court below that this is an appropriate place at which to call a halt.
89
At the same time appellant has presented no mitigating factors, such as the business failure or the inadequate resources of one of the parties that may have prevented it from maintaining its competitive position, nor a demonstrated need for combination to enable small companies to enter into a more meaningful competition with those dominating the relevant markets. On the basis of the record before us, we believe the Government sustained its burden of proof. We hold that the District Court was correct in concluding that this merger may tend to lessen competition substantially in the retail sale of men's, women's, and children's shoes in the overwhelming majority of those cities and their environs in which both Brown and Kinney sell through owned or controlled outlets.
90
The judgment is affirmed.
91
Affirmed.
92
Mr. Justice FRANKFURTER took no part in the decision of this case.
93
Mr. Justice WHITE took no part in the consideration or decision of this case.
APPENDIX A
94
Sales of women's shoes by Brown and Kinney as a share of the total city sales
95
in selected areas (1955)
Brown Combined
96
Kinney owned or Brown-
97
Area Total sales Shoe Store controlled Kinney
98
(pairs) (%) outlets share
99
(%)
*
(%)*
Dodge City, Kans.. 31,400 23.3 34.4 57.7
Texas City, Tex.. 32,300. 27.8 20.7 48.5
Council Bluffs, Iowa. 68,200 27.3 15.4 42.7
Marshalltown, Iowa. 72,600 21.8 13.4 35.2
Uniontown, Pa.. 144,900. 16.3 18.8 35.1
Ardmore, Okla.. 62,600. 14.4 20.3 34.7
Keokuk, Iowa. 34,600. 18.4 14.8 33.2
Ottumwa, Iowa. 67,200. 28.2 4.3 32.5
Pine Bluff, Ark.. 63,100. 21.6 9.4 31.0
Lawton, Okla.. 95,200. 20.2 9.8 30.0
Borger, Tex.. 50,100. 15.5 13.8 29.3
Roswell, N. Mexico. 80,900 11.7 15.8 27.5
Topeka, Kans.. 224,000. 11.7 15.8 27.5
Coatesville, Pa.. 46,200. 17.2 10.0 27.2
Hobbs, N. Mexico. 50,800. 22.2 5.0 27.2
Iowa City, Iowa. 72,200. 15.3 10.7 26.0
Dubuque, Iowa. 119,000. 14.3 11.5 25.8
Carlisle, Pa.. 55,500. 17.5 5.9 23.4
Texarkana, Ark.. 65,800. 15.9 7.5 23.4
Fort Dodge, Iowa. 104,000 10.8 12.5 23.3
Steubenville, Ohio. 207,200 14.9 8.1 23.0
Mason City, Iowa. 102,400 14.4 8.3 22.7
Marion, Ohio. 91,600. 6.7 15.7 22.4
Pueblo, Colo.. 152,400. 14.1 7.5 21.6
Hibbing, Minn.. 44,600. 18.1 3.4 21.5
Fargo, N. Dak.. 162,800. 15.3 6.2 21.5
Franklin, Pa.. 32,100. 14.4 7.1 21.5
Corpus Christi, Tex.. 331,500 2.4 19.0 21.4
Batavia, N. Y.. 75,300. 13.2 8.1 21.3
McAllen, Tex.. 90,200. 13.0 8.3 21.3
Concord, N. H.. 57,300. 15.6 4.7 20.3
Sioux City, Iowa. 222,000 7.7 12.3 20.0
Muskogee, Okla.. 68,100. 7.6 12.2 19.8
Rochester, Minn.. 130,100 11.2 8.6 19.8
Bartlesville, Okla.. 63,100 15.8 3.9 19.7
Berwyn, Ill.. 95,900. 17.8 1.9 19.7
Clarksburg, W. Va.. 134,600 15.5 3.9 19.4
Davenport, Iowa. 230,300. 6.4 12.8 19.2
Freeport, Ill.. 88,000. 10.7 8.3 19.0
Grand Forks, N. Dak.. 121,100 12.8 6.1 18.9
Muskegon, Mich.. 172,000. 4.0 14.9 18.9
Baton Rouge, La.. 398,100 3.8 14.9 18.7
Des Moines, Iowa. 562,800 4.9 13.8 18.7
Women's shoes - Continued
Brown Combined
Kinney owned or Brown-
Area Total sales Shoe Store controlled Kinney
(pairs) (%) outlets share
(%)
* (%)*
Springfield, Mo.. 210,400 3.7 14.9 18.6
Laredo, Tex.. 166,200. 15.3 3.2 18.5
St. Cloud, Minn.. 88,400. 9.6 8.9 18.5
Fort Smith, Ark.. 165,200 11.8 6.5 18.3
Kingsport, Tenn.. 106,200 13.0 5.1 18.1
Gulfport, Miss.. 99,700. 14.2 3.7 17.9
Cortland N. Y.. 55,300. 12.2 5.5 17.7
Fremont, Nebr.. 56,100. 11.8 5.6 17.4
Manitowoc, Wis.. 60,800. 13.9 3.5 17.4
Salina, Kans.. 102,800. 13.8 3.3 17.1
Muncie, Ind.. 158,000. 7.9 9.0 16.9
Portsmouth, Ohio. 141,200 9.2 7.2 16.4
Reading, Pa.. 417,200. 6.0 10.4 16.4
Greensburg, Pa.. 117,800. 8.0 7.9 15.9
Little Rock, Ark.. 468,100 2.7 13.2 15.9
Flint, Mich.. 628,300. 2.7 13.1 15.8
Wichita, Kans.. 666,600. 7.5 8.3 15.8
Lubbock, Tex.. 305,500. 3.9 11.7 15.6
Kingston, N. Y.. 112,100. 11.6 3.9 15.5
Emporia, Kans.. 44,300. 14.3 0.8 15.1
Johnson City, Tenn.. 75,800 12.0 3.1 15.1
Odessa, Tex.. 167,700. 8.1 7.0 15.1
Bloomington, Ill.. 129,600 6.2 8.6 14.8
Elgin, Ill.. 126,900. 6.7 8.0 14.7
Enid, Okla.. 140,400. 10.7 4.0 14.7
Burlington, Iowa. 74,500. 10.7 3.9 14.6
South Bend, Ind.. 434,500 1.6 13.0 14.6
Galesburg, Ill.. 95,600. 12.4 2.1 14.5
Abilene, Tex.. 184,300. 12.4 2.0 14.4
Meridian, Miss.. 120,000. 3.7 10.6 14.3
Toledo, Ohio. 821,800. 1.3 12.6 13.9
Tulsa, Okla.. 749,000. 7.0 6.9 13.9
Colorado Springs, Colo.. 225,600 7.5 6.1 13.6
Williamsport, Pa.. 153,400 4.1 9.2 13.3
Mankato, Minn.. 99,900. 7.9 5.3 13.2
Green Bay, Wis.. 220,000. 7.5 5.2 12.7
Waterloo, Iowa. 224,100. 10.2 2.3 12.5
Sioux Falls, S. Dak.. 172,000 7.4 4.9 12.3
Glens Falls, N. Y.. 115,300 7.6 4.6 12.2
Kansas City, Kans.. 181,300 8.6 3.6 12.2
Oklahoma City, Okla.. 839,500 1.8 10.4 12.2
Hutchinson, Kans.. 156,400 9.0 2.4 11.4
Kenosha, Wis.. 107,700. 7.0 4.3 11.3
Pottsville, Pa.. 147,000. 6.0 5.3 11.3
San Angelo, Tex.. 113,800 6.5 4.6 11.1
Wheeling, W. Va.. 311,600 6.9 3.9 10.8
Ithaca, N. Y.. 82,300. 5.8 4.7 10.5
Zanesville, Ohio. 138,800 9.0 1.5 10.5
Mobile, Ala.. 473,100. 1.0 9.4 10.4
Women's shoes - Continued
Brown Combined
Kinney owned or Brown-
Area Total sales Shoe Store controlled Kinney
(pairs) (%) outlets share
(%)
* (%)*
York, Pa... 344,200. 5.1. 4.9 10.0
Gary, Ind.. 414,400. 4.3. 5.3 9.6
Decatur, Ill.. 221,800. 3.9 5.5 9.4
Amarillo, Tex.. 334,100. 5.6 3.2 8.8
Minneapolis, Minn.. 1,909,900 5.3 3.1 8.4
Forth Worth, Tex.. 1,092,100 1.4 6.9 8.3
Waco, Tex.. 170,400. 5.4. 2.9 8.3
Altoona, Pa.. 241,000. 4.8 3.3 8.1
Lancaster, Pa.. 316,400. 3.9 4.2 8.1
Rockford, Ill.. 377,400. 5.0 3.1 8.1
Saginaw, Mich.. 326,300. 2.1 5.6 7.7
Grand Rapids, Mich.. 650,300 5.8 1.6 7.4
Jacksonville, Fla.. 739,200 0.6 6.7 7.3
Columbus, Ga.. 308,300. 3.4 3.5 6.9
Evansville, Ind.. 486,600 3.1 3.6 6.7
St. Paul, Minn.. 1,013,200 3.1 3.5 6.6
Montgomery, Ala.. 437,100 1.7 4.7 6.4
Peoria, Ill.. 469,300. 3.6 2.8 6.4
Springfield, Ill.. 304,400 5.1 1.3 6.4
Milwaukee, Wis.. 1,984,900 5.9 0.3 6.2
San Antonio, Tex.. 1,476,000 1.0 4.7 5.7
Cedar Rapids, Iowa. 256,600 3.9 1.2 5.1APPENDIX B
Sales of children's shoes by Brown and Kinney as a share of the total city sales
in selected areas (1955)
Brown Combined
Kinney owned or Brown-
Area Total sales Shoe controlled Kinney
(pairs) Store outlets share
(%) (%)* (%)*
Coatesville, Pa.. 20,900. 20.8 31.0 51.8
Dodge City, Kans.. 14,200 35.5 13.5 49.0
Council Bluffs, Iowa. 30,900 36.6 6.5 43.1
Ardmore, Okla.. 28,400. 20.7 21.0 41.7
Pueblo, Colo.. 69,100. 25.4 15.8 41.2
Borger, Tex.. 22,700. 24.8 16.1 40.9
Berwyn, Ill.. 43,500. 31.2 3.4 34.6
Batavia, N. Y.. 34,100. 14.0 19.3 33.3
Ottumwa, Iowa. 30,500. 30.4 2.5 32.9
Carlisle, Pa.. 25,200. 21.4 11.3 32.7
Manitowoc, Wis.. 27,600. 19.2 12.1 31.3
Lawton, Okla.. 43,200. 18.3 12.6 30.9
Franklin, Pa.. 14,500. 14.4 14.9 29.3
Gulfport, Miss.. 45,200. 24.5 4.5 29.0
Freemont, Nebr.. 25,400. 14.3 14.6 28.9
Bartlesville, Okla.. 28,600 20.7 7.8 28.5
Concord, N. H.. 26,000. 16.3 11.8 28.1
Uniontown, Pa.. 65,700. 18.9 8.3 27.2
Mashalltown, Iowa. 32,900 22.8 4.2 27.0
Cortland, N. Y.. 25,100. 13.8 12.4 26.2
Kingsport, Tenn.. 48,100. 14.8 10.6 25.4
McAllen, Tex.. 40,000. 17.0 7.5 24.5
Topeka, Kans.. 101,600. 15.7 7.2 22.9
Texarkana, Ark.. 29,800. 19.2 3.6 22.8
Johnson City, Tenn.. 34,300 13.0 9.4 22.4
Dubuque, Iowa. 53,900. 17.6 4.5 22.1
Emporia, Kans.. 20,100. 14.5 7.4 21.9
Iowa City, Iowa. 32,700. 15.8 5.8 21.6
Muskogee, Okla.. 30,900. 10.7 10.9 21.6
Salina, Kans.. 46,600. 12.5 8.7 21.2
Mason City, Iowa. 46,400. 16.8 3.4 20.2
Enid, Okla.. 63,700. 12.1 6.9 19.0
Kingston, N. Y.. 50,800. 12.8 5.1 17.9
Rochester, Minn.. 59,100. 7.5 9.9 17.4
Ithaca, N. Y.. 37,300. 5.5 11.8 17.3
Hutchinson, Kans.. 70,900 10.9 6.0 16.9
Baton Rouge, La.. 180,400 8.0 8.6 16.6
Grand Forks, N. Dak.. 54,900 12.7 3.4 16.1
Sioux City, Iowa. 100,600 9.8 5.9 15.7
Altoona, Pa.. 109,300. 12.5 2.9 15.4
Elgin, Ill.. 57,500. 13.1 2.3 15.4
Children's shoes - Continued
Brown Combined
Kinney owned or Brown-
Area Total sales Shoe controlled Kinney
(pairs) Store outlets share
(%) (%)* (%)*
Meridian, Miss.. 54,400. 6.7 8.7 15.4
Wichita, Kans.. 302,200. 9.6 5.6 15.2
Colorado Springs, Colo.. 102,300 8.0 7.1 15.1
Fort Smith, Ark.. 74,900. 12.1 3.0 15.1
Fort Dodge, Iowa. 47,100. 12.5 2.4 14.9
Zanesville, Ohio. 62,900. 9.7 4.8 14.5
Muskegon, Mich.. 78,000. 7.4 6.6 14.0
Steubenville, Ohio. 93,900 11.4 2.4 13.8
Tulsa, Okla.. 339,500. 8.6 5.2 13.8
Corpus Christi, Tex.. 150,300 4.4 8.8 13.2
Davenport, Iowa. 104,400. 8.4 4.8 13.2
Fargo. N. Dak.. 73,800. 9.0 3.8 12.8
Wheeling W. Va.. 141,200. 8.7 4.1 12.8
Amarillo, Tex.. 151,400. 8.5 4.2 12.7
Little Rock, Ark.. 212,200 3.0 9.5 12.5
South Bend, Ind.. 197,000 2.9 9.4 12.3
Greensburg, Pa.. 53,400. 8.9 3.0 11.9
Des Moines, Iowa. 225,100 6.5 5.1 11.6
Glens Falls, N. Y.. 52,300 10.2 1.2 11.4
Green Bay, Wis.. 99,700. 7.3 3.8 11.1
Decatur, Ill.. 100,500. 6.3 4.4 10.7
Fort Worth, Tex.. 495,100 3.3 7.4 10.7
Mobile, Ala.. 198,100. 4.5 6.2 10.7
Gary, Ind.. 187,800. 7.0. 3.6 10.6
Bloomington, Ill.. 58,800 6.5 4.0 10.5
Springfield, Mo.. 95,400. 3.1 6.5 9.6
Williamsport, Pa.. 69,600 5.0 4.5 9.5
Waco, Tex... 77,200. 6.3. 3.2 9.5
Lubbock, Tex.. 138,500. 6.4 2.8 9.2
Pottsville, Pa.. 66,600. 5.9 3.3 9.2
Milwaukee, Wis.. 899,800. 8.3 0.4 8.7
Lancaster, Pa.. 143,400. 6.2 2.3 8.5
Tampa, Fla.. 251,600. 4.5 4.0 8.5
Oklahoma City, Okla.. 380,600 2.5 5.8 8.3
Mankato, Minn.. 45,300. 6.8 1.1 7.9
Minneapolis, Minn.. 865,800 6.7 1.2 7.9
Peoria, Ill.. 212,700. 6.7 1.0 7.7
Columbus, Ga.. 139,700. 6.4 1.2 7.6
Reading, Pa.. 189,100. 4.4 3.1 7.5
Toledo, Ohio. 372,500. 1.5 5.3 6.8
Jacksonville, Fla.. 335,100 2.0 4.5 6.5
Springfield, Ill.. 558,500 5.7 0.7 6.4
Montgomery, Ala.. 164,500 3.3 2.9 6.2
Brownsville, Tex.. 100,500 4.3 1.8 6.1
Saginaw, Mich.. 147,900. 3.5 2.5 6.0
St. Paul, Minn.. 459,300. 2.7 2.5 5.2
Detroit, Mich.. 2,483,900 4.4 0.6 5.0APPENDIX C
Sales of men's shoes by Brown and Kinney as a share of the total city sales in
selected areas (1955)
Brown Combined
Kinney owned or Brown-
Area Total sales Shoe Store controlled Kinney
(pairs) (%) outlets share
(%)
* (%)*
Dodge City, Kans.. 12,000 16.4 8.4 24.8
Ardmore, Okla.. 23,900. 8.1 15.5 23.6
Batavia, N. Y.. 28.700. 8.9 11.3 20.2
Lawton, Okla.. 36,300. 11.3 8.2 19.5
Borger, Tex.. 19,100. 11.5 7.8 19.3
Pueblo, Colo.. 58,100. 8.6 10.3 18.9
Carlisle, Pa.. 21,200. 14.3 4.2 18.5
Freemont, Nebr.. 21,400. 8.0 10.4 18.4
Coatesville, Pa.. 17,600. 9.3 8.2 17.5
Manitowoc, Wis.. 23,200. 10.1 7.3 17.4
Franklin, Pa.. 12,200. 10.5 5.3 15.8
Council Bluffs, Iowa. 26,000 14.0 1.1 15.1
Concord, N. H.. 21,900. 11.0 3.7 14.7
Texarkana, Ark.. 25,100. 12.1 2.6 14.7
Corpus Christi, Tex.. 126,500 2.0 12.3 14.3
Muskogee, Okla.. 26,000. 6.5 7.6 14.1
Emporia, Kans.. 16,900. 7.8 5.7 13.5
Kingsport, Tenn.. 40,500. 7.2 5.9 13.1
Bartlesville, Okla.. 24,100 8.9 4.1 13.0
Cortland, N. Y.. 21,100. 7.6 5.2 12.8
Dubuque, Iowa. 45,400. 10.2 2.1 12.3
McAllen, Tex.. 34,400. 8.4 3.5 11.9
Berwyn, Ill.. 36,600. 9.1 2.6 11.7
Salina, Kans.. 39,200. 7.2 3.9 11.1
Kingston, N. Y.. 42,800. 6.9 3.7 10.6
Elgin, Ill.. 48,400. 10.1 0.4 10.5
Enid, Okla.. 53,600. 5.9. 4.6 10.5
Uniontown, Pa.. 55,300. 7.3 2.9 10.2
Rochester, Minn.. 49,600. 4.3 5.5 9.8
Fort Smith, Ark.. 63,000. 5.2 4.5 9.7
Topeka, Kans.. 85,500. 9.0 0.5 9.5
Hutchinson, Kans.. 59,700 5.1 3.7 8.8
Johnson City, Tenn.. 28,900 7.7 1.0 8.7
Davenport, Iowa. 87,900. 6.0 1.7 7.7
Ithaca, N. Y.. 31,400. 3.5 4.2 7.7
Zanesville, Ohio. 53,000. 5.2 2.1 7.3
Muskegon, Mich.. 65,600. 5.1 1.7 6.8
Steubenville, Ohio. 79,000 5.7 1.1 6.8
Springfield, Mo.. 80,300. 3.6 2.8 6.4
Amarillo, Tex.. 127,400. 4.6 1.3 5.9
Asheville, N. C.. 80,900. 2.9 2.9 5.8
Green Bay, Wis.. 83,900. 4.0 1.6 5.6
Waco, Tex... 65,000. 2.6. 3.0 5.6
Greensburg, Pa.. 44,900. 4.4 1.0 5.4
Peoria, Ill.. 179,000. 4.7 0.7 5.4
Reading, Pa.. 159,200. 2.7 2.6 5.3
Wichita, Kans.. 254,300. 4.3 0.9 5.2
Colorado Springs, Colo.. 86,100 4.4 0.7 5.1APPENDIX D
Comparison of Brown-Kinney percentage of industry shoe sales for selected
cities, and counties or standard metropolitan areas
(Appellant's percentages of 1954 dollar sales adjusted to include sales of Brown franchise and
Wohl plan stores)
County of SMA percentage2
City
City percentage1 Name SMA County
Texas City, Tex.. 35.8 Galveston, Tex.. 12.2 ---------
Coatesville, Pa.. 32.9 Philadelphia, Pa.. 1.9 ---------
Ottumwa, Iowa. 27.3 Wapello County.-------- 26.5
Uniontown, Pa.. 27.2 Fayette County.-------- 12.4
Texarkana, Ark.. 25.3 Miller County.-------- 23.9
Marshalltown, Iowa 24.9. Marshall County -------- 22.6
Council Bluffs, Iowa 24.2. Omaha, Nebr.. 7.9 ---------
Corpus Christi, Tex. 24.0. Corpus Christi, Tex. 22.6 ---------
Ardmore, Okla.. 23.4 Carter County.-------- 20.4
Iowa City, Iowa. 18.9 Johnson County.-------- 16.6
Muskogee, Okla.. 17.7 Muskogee County.-------- 16.5
Steubenville, Ohio 17.5. Wheeling-Steubenville 8.7 ---------
Grand Forks, N. Dak. 17.1. Grand Forks County -------- 14.4
Mason City, Iowa. 16.6 Cerro Gordo County.-------- 15.6
Topeka, Kans.. 16.4 Topeka, Kans.. 16.1 ---------
Baton Rouge, La.. 16.0 Baton Rouge, La.. 15.9 ---------
Rochester, Minn.. 15.9 Rochester, Minn.. 15.4 ---------
Dubuque, Iowa. 15.4 Dubuque, Iowa. 13.9 ---------
Fort Smith, Ark.. 15.4 Fort Smith, Ark.. 14.7 ---------
Little Rock, Ark. 15.2. Little Rock & North Little
Rock, Ark.. 13.2 ---------
Fort Dodge, Iowa. 14.8 Webster County.-------- 14.3
Springfield, Mo.. 14.3 Springfield, Mo.. 13.3 ---------
Berwyn, Ill.. 14.1 Chicago, Ill.. 2.5. ---------
Davenport, Iowa. 14.1 Davenport, Moline, Rock Island 12.2. ---------
Fargo, N. Dak.. 13.9 Cass County.-------- 13.5
Altoona, Pa.. 13.1 Altoona, Pa.. 10.6. ---------
Muskegon, Mich.. 13.1 Muskegon County.-------- 12.0
Reading, Pa.. 12.2 Reading, Pa.. 10.7. ---------
South Bend, Ind.. 11.9 South Bend, Ind.. 11.1 ---------
Greensburg, Pa.. 11.3 Pittsburgh, Pa.. 2.5 ---------
Bloomington, Ill. 11.0. McLean County.-------- 9.8
Kansas City, Kans. 10.7. Kansas City, Mo. 3.1 ---------
Colorado Springs, Colo. 10.6. El Paso County -------- 10.5
Elgin, Ill.. 10.5 Chicago, Ill.. 2.5. ---------
Oklahoma City, Okla. 10.0. Oklahoma City, Okla. 10.1 Mr. Justice CLARK, concurring.
I agree that so long as the Expediting Act, 15 U.S.C. § 29, 15 U.S.C.A. § 29, is on the books we have no alternative but to accept jurisdiction in this case. The Act declares that appeals in civil antitrust cases in which the United States is complainant lie only to this Court. It thus deprives the parties of an intermediate appeal and this Court of the benefit of consideration by a Court of Appeals. Under our system a party should be entitled to at least one appellate review, and since the sole opportunity in cases under the Expediting Act is in this Court we usually note jurisdiction. A fair consideration of the issues requires us to carry out the function of a Court of Appeals by examining the whole record and resolving all questions, whether or not they are substantial. This is a great burden on the Court and seldom results in much expedition, as in this case where 2 1/2 years have passed since the District Court's decision.
On the merits the case presents the question of whether, under § 7 of the Clayton Act, the acquisition by Brown of the Kinney retail stores may substantially lessen competition in shoes on a national basis or in any section of the country.* To me § 7 is definite and clear. It prohibits acquisitions, either of stock or assets, where competition in any line of commerce in any section of the country may be substantially lessened. The test as stated in the Senate Report on the bill is whether there is 'a reasonable probability' that competition may be lessened.
An analysis of the record indicates (1) that Brown, which makes all types of shoes, is the fourth largest manufacturer in the country; (2) that Kinney likewise manufacturers some shoes but deals primarily in retailing, having almost 400 stores that handle a substantial volume of sales; (3) that its acquisition would give Brown a total of some 1,600 retail outlets, making it the second largest retailer in the Nation; (4) that Kinney's stores are on both a national and local basis strategically placed from a retail market standpoint in suburban areas or towns of over 10,000 population; (5) that Kinney's suppliers are small shoe manufacturers; (6) that Brown's earlier acquisitions, seven in number in five years, indicate a pattern to increase the sale of Brown shoes through the acquisition of independent outlets, resulting in the loss of sales by small competing manufacturers; (7) that statistics on these outlets indicate that Brown, after acquisition, has materially increased its shipments of Brown shoes to them, some as much as 50%; and (8) that the acquisition would have a direct effect on the small manufacturers who previously enjoyed the Kinney requirements market.
It would appear that the relevant line of commerce would be shoes of all types. This is emphasized by the nature of Brown's manufacturing activity and its plan to integrate the Kinney stores into its operations. The competition affected thereby would be in the line handled by these stores which is the full line of shoes manufactured by Brown. This conclusion is more in keeping with the record as I read it and at the same time avoids the charge of splintering the product line. Likewise, the location of the Kinney stores points more to a national market in shoes than a number of regional markets staked by artificial municipal boundaries. Brown's business is on a national scale and its policy of integration of manufacturing and retailing is on that basis. I would conclude, therefore, that it would be more reasonable to define the line of commerce as shoes—those sold in the ordinary retail store—and the market as the entire country.
On this record but one conclusion can follow, i.e., that the acquisition by Brown of the 400 Kinney stores for the purposes of integrating their operation into its manufacturing activity created a 'reasonable probability' that competition in the manufacture and sale of shoes on a national basis might be substantially lessened. I would therefore affirm.
Mr. Justice HARLAN, dissenting in part and concurring in part.
I would dismiss this appeal for lack of jurisdiction, believing that the case in its present posture is prematurely here because the judgment sought to be reviewed is not yet final. Since the Court, however, holds that the case is properly before us, I consider it appropriate, after noting my dissent to this holding, to express my views on the merits because the issues are of great importance. On that aspect, I concur in the judgment of the Court but do not join its opinion, which I consider to go far beyond what is necessary to decide the case.
JURISDICTION.
The Court's authority to entertain this appeal depends on § 2 of the Expediting Act of 1903. That statute, in its present form, provides (15 U.S.C. § 29, 15 U.S.C.A. § 29):
'In every civil action brought in any district court of the United States under any of said (anti-trust) Acts, wherein the United States is complainant, an appeal from the final judgment of the district court will lie only to the Supreme Court.' (Emphasis added.)
The Act was passed by a Congress which thereby 'sought * * * to insure speedy disposition of suits in equity brought by the United States under the AntiTrust Act.' United States v. California Cooperative Canneries, 279 U.S. 553, 558, 49 S.Ct. 423, 425, 73 L.Ed. 838. This major policy consideration emerges clearly from the otherwise meager legislative history of the Act. See H.R.Rep.No.3020, 57th Cong., 2d Sess. (1903); 36 Cong.Rec. 1679, 1744, 1747. It was in keeping with this purpose that 'Congress limited the right of review to an appeal from the decree which disposed of all matters * * * and * * * precluded the possibility of an appeal to either (the Supreme Court or the Court of Appeals) * * * from an interlocutory decree.' United States v. California Cooperative Canneries, supra. For it was entirely consistent with its desire to expedite these cases for Congress to have eliminated the time-consuming delays occasioned by interlocutory appeals either to intermediate courts or to this Court.
By taking jurisdiction over this appeal at the present time, despite the fact that, even if affirmed, this case would doubtless reappear on the Court's docket if the terms of the District Court's divestiture decree are unsatisfactory to the appellant or to the Government, the Court is paving the way for dual appeals in all government anti-trust cases where intricate divestiture judgments are involved. Whether or not such a procedure is advisable from the standpoint of judicial administration or practical business considerations—and I think such questions by no means free from doubt—I believe that it is contrary to the provisions and purposes of the Expediting Act, and that the construction now given the Act does violence to the accepted meaning of 'final judgment' in the federal judicial system.
The judgment from which this appeal is taken directs the appellant to 'relinquish and dispose of the stock, share capital and assets' of the G. R. Kinney Company and enjoins further interlocking interests between the two corporations. It does not specify how the divestiture is to be carried out, but directs appellant to file 'a proposed plan to carry into effect the divestiture order' and grants to Government 30 days following such filing in which to submit 'oppositions or suggestions thereto.' When considered in light of the District Court's opinion, this reservation emerges as much more than a mere retention of jurisdiction for the purpose of ministerially executing a definite and precise final judgment. See, e.g., Ray v. Law, 3 Cranch 179, 2 L.Ed. 404; French v. Shoemaker, 12 Wall. 86, 98, 20 L.Ed. 270. In light of this Court's remarks in United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 607—608, 77 S.Ct. 872, 884, 1 L.Ed.2d 1057 the District Court concluded that the particular form which the divestiture order was to take was a matter which 'could have far-reaching effects and consequences,' 179 F.Supp. 721, at 741, and that it would be appropriate for the court to conduct hearings on the manner in which the Kinney stock ought to be disposed of by the appellant. Hence it is not farfetched to assume that particular terms of the remedy ordered by the District Court will be contested, and that this Court may well be asked to examine the details relating to the anticipated divestiture. E.g., United States v. E. I. du Pont de Nemours & Co., 366 U.S. 316, 81 S.Ct. 1243, 6 L.Ed.2d 318.
The exacting obligation with respect to the terms of antitrust decrees cast upon this Court by the Expediting Act was commented upon only last Term. In United States v. E. I. du Pont de Nemours & Co., 366 U.S. 316, 81 S.Ct. 1243, 6 L.Ed.2d 318, it was noted that it was the Court's practice, 'particularly in cases of a direct appeal from the decree of a single judge, * * * to examine the District Court's action closely to satisfy ourselves that the relief is effective to redress the antitrust violation proved.' 366 U.S., at 323, 81 S.Ct. at 1248; see International Boxing Club of New York, Inc. v. United States, 358 U.S. 242, 253, 79 S.Ct. 245, 251, 3 L.Ed.2d 270. In the present case the Court and the parties know nothing more of 'this most significant phase of the case,' United States v. United States Gypsum Co., 340 U.S. 76, 89, 71 S.Ct. 160, 169, 95 L.Ed. 89, than that Brown will generally be required to divest itself of any interest in Kinney. Exactly how this separation is to be accomplished has not yet been determined, and there is no way of knowing now whether both parties to the suit will find the decree satisfactory or whether one or both will seek further review in this Court.
Despite the opportunity thus created for separate reviews of these kinds of cases at their 'merits' and 'relief' stages, the Court holds that the judgment now in effect has 'sufficient indicia of finality' (ante, 370 U.S., p. 308, 82 S.Ct., p. 1514) to render it appealable now, notwithstanding that the terms of the ordered divestiture have not yet been fixed. This conclusion is based upon three discrete considerations, none of which, in my opinion, serves to overcome the 'final judgment' requirement of the Expediting Act, as that term has hitherto been understood in federal law.1
First. The Court suggests that any further proceedings to be conducted in the District Court are 'sufficiently independent of, and subordinate to, the issues presented by this appeal' to permit them to be considered and reviewed separately. But this judicially created exception to the embracing principle of finality has never heretofore been utilized by this Court to permit separate review of a District Court's decision on the underlying merits of a claim when the details of the relief that is to be awarded are yet uncertain. The present case does not present the possibility, as did Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, and Forgay v. Conrad, 6 How. 201, 12 L.Ed. 404, that a delay in appellate review would result in irreparable harm, equivalent in effect to a denial of any review on the point at issue. See 337 U.S., at 546, 69 S.Ct. 1225; 6 How., at 204, 12 L.Ed. 404. Nor is this a case in which the complaint's prayers for relief are so diversified that the resolution of one branch of the case 'is independent of, and unaffected by, another litigation with which it happens to be entangled.' Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 126, 65 S.Ct. 1475, 1479, 89 L.Ed. 2092; see Carondelet Canal & Navigation Co. v. Louisiana, 233 U.S. 362, 372—373, 34 S.Ct. 627, 629, 58 L.Ed. 1001; Forgay v. Conrad, supra.
If the appellant were compelled to await the entry of a particularized divestiture order before being granted appellate review, it would suffer no irremediable loss; indeed, in this case the merger was allowed to proceed pendente lite, so any delay, to the extent that it could affect the parties, would benefit the appellant. Nor can it well be suggested that the particular conditions under which the divestiture is to be executed are matters that are only fortuitously 'entangled' with the merits of the complaint. Despite the seemingly mandatory tone of the 'divestiture' judgment now before us, the plain fact remains that it is by its own terms inoperative to a substantial extent until further proceedings are held in the District Court. Unlike the cases relied upon by the Court, therefore, this case comes up on appeal before the appellant knows exactly what it has been ordered to do or not to do. This is surely not the type of judgment 'which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911; see City of Covington v. Covington First National Bank, 185 U.S. 270, 277, 22 S.Ct. 645, 648, 46 L.Ed. 906.
Second. The Court finds significant the 'character of the decree still to be entered in this suit.' Ante, 370 U.S., p. 309, 82 S.Ct., p. 1515. Since the order of full divestiture requires 'careful, and often extended, negotiation and formulation,' ante, 370 U.S., p. 309, 82 S.Ct., p. 1515, it is suggested that a delay in carrying out its terms might render them impractical or unenforceable. Apart from the fact that this policy consideration is more appropriately addressed to the Congress than to this Court, it appears to me to call for a result directly contrary to that reached by the Court. For if the terms of the divestiture are indeed so difficult to formulate and so interrelated with market conditions, it is most unlikely that the decree to be issued by the District Court will turn out to be satisfactory to both parties. Consequently, on the Courts' own reasoning, a second appearance of this case on our docket is not an imaginative possibility but a reasonable likelihood. In stating that the divestiture portion of this judgment 'is disputed here on an 'all or nothing' basis,' and that 'it is ripe for review now, and will, thereafter, be foreclosed,' ante, 370 U.S., p. 309, 82 S.Ct., p. 1515, the Court can hardly mean that either the appellant or the Government will be precluded from seeking review of the divestiture terms if it deems them unsatisfactory. Indeed, neither side on this appeal has addressed itself to the propriety of the divestiture remedy, as such, that is independently of the question whether the merger itself runs afoul of the Clayton Act.
Moreover, if it is delay between formulation of the decree and its execution that is thought to be damaging, what reason is there to believe that this delay or its hazards will be any greater if the entire case is brought up here once than if review is separately sought from the divestiture decree once its terms have been settled? Nor can it be maintained that if the merits are now affirmed then an appeal on the question of relief is improbable. For insofar as complex 'negotiation and formulation' is a factor, the probability of an appeal is equally likely in either instance.
Third. The Court's final reason for holding this judgment appealable is that similar judgments have often been reviewed here in the past with no issue ever having been raised regarding jurisdiction. But the cases are legion which have echoed the answer given by Chief Justice Marshall to a contention that the Court was bound on a jurisdictional point by its consideration on the merits of a case in which the jurisdictional question had gone unnoticed: 'No question was made, in that case, as to the jurisdiction. It passed sub silentio, and the court does not consider itself as bound by that case.' United States v. More, 3 Cranch 159, 172, 2 L.Ed. 397; see Snow v. United States, 118 U.S. 346, 354, 6 S.Ct. 1059, 1063, 30 L.Ed. 207; Cross v. Burke, 146 U.S. 82, 87, 13 S.Ct. 22, 23, 36 L.Ed. 896; Louisville Trust Co. v. Knott, 191 U.S. 225, 236, 24 S.Ct. 119, 123, 48 L.Ed. 159; New v. Oklahoma, 195 U.S. 252, 256, 25 S.Ct. 68, 70, 49 L.Ed. 182; United States ex rel. Arant v. Lane, 245 U.S. 166, 170, 38 S.Ct. 94, 96, 62 L.Ed. 223; Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 379, 69 S.Ct. 606, 612, 93 L.Ed. 741; United States v. L. A. Tucker Truck Lines, 344 U.S. 33, 38, 73 S.Ct. 67, 69, 97 L.Ed. 54. The fact that the Court may, in the past, have overlooked the lack of finality in some of the judgments that came here for review in similar posture to this one does not now free it from the requirements of the Expediting Act. Nor does the fact that none of the cases reviewed in what now appears to have been an interlocutory stage was ever appealed again justify disregard of the statute. This history might point to the desirability of an amendment to the Expediting Act, but it does not make into a 'final judgment' a decree which reserves for future determination the terms of the precise relief to be afforded.
The Court suggests that a 'pragmatic approach' to finality is called for in light of the policies of the Federal Rules of Civil Procedure, which direct the 'just, speedy, and inexpensive determination of every action.' Ante, 370 U.S., p. 306, 82 S.Ct., p. 1513. But this misconceives the nature of the issue that is presented. Whether this judgment is final and appealable is not a question turning on the Federal Rules of Civil Procedure or on any balance of policies by this Court. Congress has seen fit to make this Court, for reasons which are less than obvious, the sole appellate tribunal for civil antitrust suits instituted by the United States. In so doing, it has chosen to limit this Court's reviewing power to 'final judgments.' Whether the first of these legislative determinations, made in 1903, when appeal as of right to this Court was the rule rather than the exception, should survive the expansion in the Court's docket and the development, pursuant to the Judiciary Act of 1925, of this Court's discretionary certiorari jurisdiction, may never have been given adequate consideration by the Congress.2
At this period of mounting dockets there is certainly much to be said in favor of relieving this Court of the often arduous task of searching through voluminous trial testimony any exhibits to determine whether a single district judge's findings of fact are supportable. The legal issues in most civil antitrust cases are no longer so novel or unsettled as to make them especially appropriate for initial appellate consideration by this Court, as compared with those in a variety of other areas of federal law. And under modern conditions it may well be doubted whether direct review of such cases by this Court truly serves the purpose of expedition which underlay the original passage of the Expediting Act. I venture to predict that a critical reappraisal of the problem would lead to the conclusion that 'expedition' and also, over-all, more satisfactory appellate review would be achieved in these cases were primary appellate jurisdiction returned to the Court of Appeals, leaving this Court free to exercise its certiorari power with respect to particular cases deemed deserving of further review. As things now stand this Court must deal with all government civil antitrust cases, often either at the unnecessary expenditure of its own time or at the risk of inadequate appellate review if a summary disposition of the appeal is made. Further, such a jurisdictional change would bid fair to satisfy the very 'policy' arguments suggested by the Court in this case. For the Courts of Appeals, whose dockets are generally less crowded than those of this Court, would then be authorized to hear appeals from orders such as the one here in question. Since this order grants an injunction against interlocking interests between Brown and Kinney, it would come within 28 U.S.C. § 1292(a)(1), 28 U.S.C.A. § 1292(a)(1) were this not a case 'where a direct review may be had in the Supreme Court.'
So long, however, as the present Expediting Act continues to commend itself to Congress this Court is bound by its limitations, and since for the reasons already given the decree appealed cannot, in my opinion, be properly considered a 'final judgment,' I think the appeal, at this juncture, should have been dismissed.
THE MERITS.
Since the Court nonetheless holds that the judgment is appealable in its present form, and since the underlying questions are far-reaching, I consider it a duty to express my view on the merits. On this aspect of the case I join the disposition which affirms the judgment of the District Court, though I am not prepared to subscribe to all that is said or implied in the opinion of this Court.
The question presented by this case can be stated in narrow and concise terms: Are the District Court's conclusions that the effect of the Brown-Kinney merger may be, in the language of § 7 of the Clayton Act, 'substantially to lessen competition, or to tend to create a monopoly' in 'any line of commerce in any section of the country' sustainable? In other words, does the indefinite and general language in § 7 manifest a congressional purpose to proscribe a combination of this sort? Brown contends that in finding the merger illegal the District Court lumped together what are in fact discrete 'lines of commerce,' that it failed to define an appropriate 'section of the country,' and that when the case is properly viewed any lessening of competition that may be caused by the merger is not 'substantial.' For reasons stated below, I think that each of these contentions is untenable.
The dispositive considerations are, I think, found in the 'vertical' effects of the merger, that is, the effects reasonably to be foreseen from combining Brown's manufacturing facilities with Kinney's retail outlets. In my opinion the District Court's conclusions as to such effects are supported by the record, and suffice to condemn the merger under § 7, without regard to what might be deemed to be the 'horizontal' effects of the transaction.
1. 'Line of Commerce.'—In considering both the horizontal and vertical aspects of this merger, the District Court analyzed the probable impact on competition in terms of three relevant 'lines of commerce'—men's shoes, women's shoes, and children's shoes. It rejected Brown's claim that shoes of different construction or of different price range constituted distinct lines of commerce. Whatever merit there might be to Brown's contention that the product market should be more narrowly defined when it is viewed from the vantage point of the ultimate consumer (whose pocketbook, for example, may limit his purchase to a definite price range), the same is surely not true of the shoe manufacturer. Although the record contains evidence tending to prove that a shoe manufacturing plant may be managed more economically if its production is limited to only one type and grade of shoe, the history of Brown's own factories reveals that a single plant may be used in successive years, or even at the same time, for the manufacture of varying grades of shoes and may, without undue difficulty, be shifted from the producion of children's shoes to men's or women's shoes, or vice versa.
Because of this flexibility of manufacture, the product market with respect to the merger between Brown's manufacturing facilities and Kinney's retail outlets might more accurately be defined as the complete wearing-apparel shoe market, combining in one the three components which the District Court treated as separate lines of commerce. Such an analysis, taking into account the interchangeability of production, would seem a more realistic gauge of the possible anticompetitive effects in the shoe manufacturing industry of a merger between a shoe manufacturer and a retailer than the District Court's compartmentalization in terms of the buying public. For if a manufacturer of women's shoes is able, albeit at some expense, to convert his plant to the production of men's shoes, the possibility of such a shift should be considered in deciding whether the market for either men's shoes or women's shoes can be monopolized or whether a particular merger substantially lessens competition among manufacturers of either product. See Adelman, Economic Aspects of the Bethlehem Opinion, 45 Va.L.Rev. 684, 689—691; cf. United States v. Columbia Steel Co., 334 U.S. 495, 510—511, 68 S.Ct. 1107, 1115, 92 L.Ed. 1533; but see United States v. Bethlehem Steel Corp., D.C., 168 F.Supp. 576. 592.
The fact that § 7 speaks of the lessening of competition 'in any line of commerce' (emphasis added) does not, of course, mean that the product market on which the effect of the merger is considered may be defined as narrowly or as broadly as the Government chooses to define it.3 The duty rests with the District Court, and ultimately with this Court, to determine what is the appropriate market on an appraisal of the relevant economic considerations. Discovering the product market is 'a necessary predicate to a finding of a violation of the Clayton Act,' United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 593, 77 S.Ct. 872, 877, 1 L.Ed.2d 1057, and the breadth of the statutory language provides no license for an abdication of this necessary function. In light of the production flexibility demonstrated by the undisputed facts in this case, I think the line of commerce by which the vertical aspects of the Brown-Kinney merger should be judged is the wearing-apparel shoe industry generally.
2. 'Section of the Country.'—This merger involves nationwide concerns which sell and purchase shoes in various localities throughout the country, so that it appears that the most suitable geographical market for appraising the alleged anticompetitive effects of the vertical combination is the Nation as a whole. This finding of the District Court (limited to the vertical aspect of the merger) is not contested by Brown and is properly accepted here. One caveat is in order, however. In judging the anticompetitive effect of the merger on the national market, it must be recognized that any decline in competition that might result need not have a uniform effect throughout the entire country. It is sufficient if the record proves that as a result of the merger competition will generally be lessened, though its most serious impact may be felt in certain localities.
3. 'Substantially to Lessen Competition.'—The remaining question is whether the merger of Brown's manufacturing facilities with Kinney's retail outlets 'may * * * substantially lessen competition' or 'tend to create a monopoly' in the nationwide market in which shoe manufacturers sell to shoe retailers. The findings of the District Court, supported by the evidence, when taken together with undisputed facts appearing in the record, justify the conclusion that a substantial lessening of competition in the relevant market is a 'reasonable probability.' S.Rep. No. 1775, 81st Cong., 2d Sess. 6 (1950), U.S.Code Cong. and Adm.News 1950, p. 4298.
On the date of the merger Kinney's retail stores numbered 352, and this figure had increased to more than 400 by the time of the trial. Nearly all these stores sell men's, women's, and children's shoes and are located in the downtown areas of cities of at least 10,000 population. In 116 of these cities, Kinney's combined pairage sale of shoes for 1955 exceeded 10% of all shoes sold in the city during the year. Its total retail shoe sales during the year constituted 1.2% of the national total in terms of dollar volume and 1.6% in terms of pairage. Of these shoes, only 20% were supplied by the Kinney manufacturing plants, the remainder coming from some 197 other sources.4
Prior to 1955 Kinney had bought none of its outside-source shoes from Brown, and its records for 1955 reveal that the year's purchases were made from a diverse number of independent shoe manufacturers. There were 66 suppliers (including Brown) in that year each of whose total sales to Kinney exceeded $50,000 and only three of these (Brown, Endicott-Johnson Co., and Georgia Shoe Manufacturing Co.) were large companies whose output placed them among the 25 most productive nonrubber shoe manufacturers in the United States. Consequently, it appears that Kinney was a substantial purchaser of the shoes produced by many small independent shoe manufacturers throughout the country. In fact, the record affirmatively shows that at least five of Kinney's suppliers, three of which are located in the State of New York, one in Pennsylvania, and one in New Hampshire, each relied upon Kinney to purchase more than 40% of its total production in 1955.
That the merger between Brown's shoe production plants and Kinney's retail outlets will tend to foreclose some of the large market which smaller shoe manufacturers found in sales to Kinney hardly seems open to doubt. This conclusion is supported by the following facts which emerge indisputably from the record: (1) In the shoe industry, as in many others, the purchase of a retail chain by a manufacturer results in an increased flow of the purchasing manufacturer's shoes to the retail store. Hence independent shoe manufacturers find it more difficult to sell their shoes to an acquired retail chain than to an independent one. (2) The result of Brown's earlier acquisition of two retail chains was, in each instance, a substantial increase in the quantity of Brown shoe purchases by the previously independent chains.5 (3) The history of many of Brown's plants proves that they may be readily adapted to the production of the grade and style of shoes customarily sold in Kinney stores.6 (4) Although Brown supplied none of Kinney's requirements before the merger, it was supplying almost 8% of these requirements just two years thereafter.
The dollar volume of Kinney's outside shoe purchases in 1955 was between 16 and 17 million dollars, and this amount had increased to 19.4 million by 1957. While Kinney was making only about 1.2% of the total retail dollar sales in the United States in 1955, that percentage can hardly be deemed an accurate reflection of its proportion of nationwide shoe purchases by retailers since the retail-sales figure is based on a computation that includes all retail stores, whether or not they were vertically integrated or otherwise affiliated. In terms of available markets for independent shoe manufacturers, the percentage of Kinney's purchases must have been substantially larger—though the precise figure is unavailable on the record before us.7
If the controlling test were, as it may be under the similar language of § 3 of the Clayton Act, one of 'quantitative substantiality,' compare Standard Oil Co. of California v. United States, 337 U.S. 293, 69 S.Ct. 1051, 93 L.Ed. 1371, with Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 81 S.Ct. 623, 5 L.Ed.2d 580, the probable foreclosure of independent manufacturers from this substantial share of the available retail shoe market would be enough to render the vertical aspect of this merger unlawful under § 7. But since the merger can be shown to have an injurious effect on competition among manufacturers and among retailers, it is unnecessary to consider whether the Standard Stations formula is applicable.
The vertical affiliation between this shoe manufacturer and a primarily retail organization is surely not, as the dissenters thought the contractual tie in Standard Stations to be, 'a device for waging competition' rather than 'a device for suppressing competition.' 337 U.S., at 323, 69 S.Ct. at 1063. Since Brown is able by reason of this merger to turn an independent purchaser into a captive market for its shoes it inevitably diminishes the available market for which shoe manufacturers compete. If Brown shoes replace those which had been previously produced by others, the displaced manufacturers have no choice but to enter some other market or go out of business. Since all manufacturers, including Brown, had competed for Kinney's patronage when it was unaffiliated, Brown's merger with Kinney potentially withdraws a share of the market previously available to the independent shoe manufacturers.
Not only may this merger, judged from a vertical standpoint, affect manufacturers who compete with Brown; it may also adversely affect competition on the retailing level. With a large manufacturer such as Brown behind it, the Kinney chain would have a great competitive advantage over the retail stores with which it vies for consumer patronage. As a manufacturer-owned outlet, the Kinney store would doubtless be able to sell its shoes at a lower profit margin and outlast an independent competitor. The merger would also effectively prevent the retail competitor from dealing in Brown shoes, since these might be offered at lower prices in Kinney stores than elsewhere.8
Brown contends that even if these anticompetitive effects are probable, they touch upon an insignificant share of the market and are not, therefore, 'substantial' within the meaning of § 7. Our decision in Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 81 S.Ct. 623, 5 L.Ed.2d 580, is cited as authority for the proposition that a foreclosure of about 1% of the relevant market is necessarily insubstantial. But the opinion in Tampa Electric carefully noted that 'substantiality in a given case' depends on a variety of factors. 365 U.S., at 329, 81 S.Ct. 629. Two of the considerations that were mentioned were 'the relative strength of the parties' and 'the probable immediate and future effects which pre-emption of that share of the market might have on effective competition therein.' Ibid. When, as here, the foreclosure of what may be considered a small percentage of retailers' purchases may be caused by the combination of the country's third largest seller of shoes with the country's largest family-style shoe store chain, and when the volume of the latter's purchases from independent manufacturers is various part of the country is large enough to render it probable that these suppliers, if displaced, will have to fall by the wayside, it cannot, in my opinion, be said that the effect on the shoe industry is 'remote' or 'insubstantial.'
I reach this result without considering the findings of the District Court respecting the trend in the shoe industry towards 'oligopoly' and vertical integration. The statistics in the record fall short of convincing me that any such trend exists.9 I consider the District Court's judgment warranted apart from these findings.
Accordingly, bowing to the Court's decision that the case is properly before us, I join the judgment of affirmance.
1 Of these over 1,230 outlets under Brown's control at the time of the filing of the complaint, Brown owned and operated over 470, while over 570 were independently owned stores operating under the Brown 'Franchise Program' and over 190 were independently owned outlets operating under the 'Wohl Plan.' A store operating under the Franchise Program agrees not to carry competing lines of shoes of other manufacturers in return for certain aid from Brown; a store under the Wohl Plan similarly agrees to concentrate its purchases on lines which Brown sells through Wohl in return for credit and merchandising aid. See note 66, infra. In addition, Brown shoes were sold through numerous retailers operating entirely independently of Brown.
2 'The general concept adopted in defining a standard metropolitan area (is) that of an integrated economic area with a large volume of daily travel and communication between a central city of 50,000 inhabitants or more and the outlying parts of the area. * * * Each area (except in New England) consists of one or more entire counties. In New England, metropolitan areas have been defined on a town basis rather than a county basis.' II U.S. Bureau of the Census, United States Census of Business: 1954, p. 3.
3 See note 1, supra.
4 U.S. Bureau of Census, Facts for Industry, Production, by Kind of Footwear: 1956 and 1955, Table 1, Production Series M31A 06, introduced as Defendant's Exhibit MM. The term 'nonrubber shoes' includes leather shoes, sandals and play shoes, but excludes canvas-upper, rubber-soled shoes, athletic shoes and slippers. Ibid.
5 These figures are based on the 1954 Census of Business. For that enumeration, the Census Bureau classification 'shoe stores' included separately operated leased shoe departments of general stores, as distinguished from the shoe departments of general stores operated only as sections of the latter's general business. U.S. Bureau of Census, Retail Trade, Single Units and Multiunits, BC58—RS3, p. I. As described, infra, Brown operated numerous leased shoe departments in general stores which would be included in the Census Bureau's total of 'shoe stores.'
6 U.S. Bureau of the Census, 1958 Census of Manufacturers, MC 58(2)—31A—6. By 1958, the number of independent manufacturers had decreased by another 10% to 872. Ibid.
7 Kinney's pairage sales of men's, women's, and children's shoes were extracted from exhibits submitted to the Government in response to its interrogatories. See GX 6, R. 48—53. These statistics are virtually identical to those cited in appellant's brief, with but one exception. In its internal operations, appellant classifies certain shoes as 'growing girls" shoes while the cited figures follow the Census Bureau's treatment of such shoes as 'women's' shoes.
8 As stated in the testimony of Clark R. Gamble, President of Brown Shoe Company:
'It was our feeling, in addition to getting a distribution into the field of prices which we were not covering, it was also the feeling that as Kinney moved into the shopping centers in these free standing stores, they were going into a higher income neighborhood and they would probably find the necessity of up-grading and adding additional lines to their very successful operation that they had been doing and it would give us an opportunity we hoped to be able to sell them in that category. Besides that, it was a very successful operation and would give us a good diversified investment to stabilize our earnings.' T. 1323.
9 Congress thus limited the right of review in such cases to an appeal from a decree which disposed of all matters, and it precluded the possibility of an appeal either to this Court or to a Court of Appeals from an interlocutory decree. United States v. California Cooperative Canneries, 279 U.S. 553, 558, 49 S.Ct. 423, 424, 73 L.Ed. 838.
10 After probable jurisdiction had been noted, a joint motion of the parties to postpone oral argument on the appeal to the present Term of the Court was granted. 363 U.S. 825, 80 S.Ct. 1595, 4 L.Ed.2d 1521.
11 Section 22, 1 Stat. 84, in its present form, 28 U.S.C. § 1291, 28 U.S.C.A. § 1291.
12 Cf. 28 U.S.C. § 1292, 28 U.S.C.A. § 1292; Fed.Rules Civ.Proc. rule 54(b), 28 U.S.C.A.; 28 U.S.C. § 1651, 28 U.S.C.A. § 1651; Ex parte United States, 226 U.S. 420, 33 S.Ct. 170, 57 L.Ed. 281; United States v. United States District Court, 334 U.S. 258, 68 S.Ct. 1035, 92 L.Ed. 1351; Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988.
13 Fed.Rules Civ.Proc. rule 1, 28 U.S.C.A.
14 See, e.g., United States v. Reading Co., 226 F. 229, 286 (D.C.E.D.Pa.), 1 Decrees & Judgments in Civil Federal Antitrust Cases (hereinafter cited 'D. & J.') 575, 576—577, affirmed in pertinent part, 253 U.S. 26, 40 S.Ct. 425, 64 L.Ed. 760; United States v. National Lead Co., 63 F.Supp. 513, 534—535 (D.C.S.D.N.Y.), 4 D. & J. 2846, 2851, affirmed, 332 U.S. 319, 67 S.Ct. 1634, 91 L.Ed. 2077; United States v. Timken Roller Bearing Co., 83 F.Supp. 284, 318 (D.C.N.D.Ohio) (relevant portions of the decree reprinted at 341 U.S. 593, 602 n. 1, 71 S.Ct. 971, 976, 95 L.Ed. 1199), modified, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199; United States v. United Shoe Machinery Corp., 110 F.Supp. 295, 352 353, 354 (D.C.D.Mass.), affirmed, 347 U.S. 521, 74 S.Ct. 699, 98 L.Ed. 910; United States v. Maryland & Virginia Milk Producers Ass'n, 167 F.Supp. 799, 809 (D.C.D.C.), affirmed, 362 U.S. 458, 80 S.Ct. 847, 4 L.Ed.2d 880. The Court has also approved the practice of District Courts of retaining jurisdiction in such cases for future modifications of their decrees, a practice which has also not been considered inconsistent with the finality of the original decrees. See Associated Press v. United States, 326 U.S. 1, 22—23, 65 S.Ct. 1416, 1425, 89 L.Ed. 2013; Lorain Journal Co. v. United States, 342 U.S. 143, 157, 72 S.Ct. 181, 188, 96 L.Ed. 162. But cf. United States v. Schine Chain Theatres, 63 F.Supp. 229, 241 242 (D.C.W.D.N.Y.), 2 D. & J. 1815, modified, 334 U.S. 110, 68 S.Ct. 947, 92 L.Ed. 1245; United States v. Paramount Pictures, 70 F.Supp. 53, 72, 75 (D.C.S.D.N.Y.), 2 D. & J. 1682, modified, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260, revised in accordance with this Court's mandate, D.C., 85 F.Supp. 881, 898—901, 2 D. & J. 1690, affirmed sub nom. Loew's, Inc. v. United States, 339 U.S. 974, 70 S.Ct. 1032, 94 L.Ed. 1380, in which review did await the entry of specific and detailed provisions for disposition of the defendants' assets.
15 Cf. Forgay v. Conrad, 6 How. 201, 12 L.Ed. 404; Carondelet Canal & Navigation Co. v. Louisiana, 233 U.S. 362, 34 S.Ct. 627, 58 L.Ed. 1001; Radio Station WOW v. Johnson, 326 U.S. 120, 65 S.Ct. 1475, 89 L.Ed. 2092; Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528. The details of the divestiture which the District Court will approve cannot affect the outcome of the basic litigation in this case, as the details of an eminent domain settlement might moot the claims of the condemnee in that type of suit. See Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 68 S.Ct. 972, 92 L.Ed. 1212; Grays Harbor Logging Co. v. Coats-Fordney Logging Co., 243 U.S. 251, 37 S.Ct. 295, 61 L.Ed. 702.
16 The Court has, of course, occasionally reviewed varying facets of single antitrust cases on separate appeals. However, such cases are distinguishable from the situation at bar. Thus, one group includes cases in which the Government first sought appellate review from dismissals of its complaints, whereafter the Court considered the orders entered on remand. E.g., United States v. Terminal R. Ass'n of St. Louis, 224 U.S. 383, 32 S.Ct. 507, 56 L.Ed. 810; 236 U.S. 194, 35 S.Ct. 408, 59 L.Ed. 535; United States v. E. I. du Pont de Nemours & 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. Another group includes cases in which the Government appealed from what it considered to be inadequate decrees, in which the Court later considered the further relief ordered on remand. E.g., United States v. Reading Co., 253 U.S. 26, 40 S.Ct. 425, 64 L.Ed. 760, later considered sub nom. Continental Insurance Co. v. United States, 259 U.S. 156, 42 S.Ct. 540, 66 L.Ed. 871; United States v. Paramount Pictures, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260, later considered sub nom. Loew's, Inc. v. United States, 339 U.S. 974, 70 S.Ct. 1032, 94 L.Ed. 1380. And appeals in which the details of a divestiture were made a primary issue have followed the entry of such orders upon the filing of consent decrees, in which the underlying requirements of divestiture were never previously presented. E.g., Swift & Co. v. United States, 276 U.S. 311, 48 S.Ct. 311, 72 L.Ed. 587; United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999; Chrysler Corp. v. United States, 316 U.S. 556, 62 S.Ct. 1146, 86 L.Ed. 1668; Ford Motor Co. v. United States, 335 U.S. 303, 69 S.Ct. 93, 93 L.Ed. 24. Cf. International Harvester Co. of New Jersey v. United States, 248 U.S. 587, 39 S.Ct. 5, 63 L.Ed. 434; 274 U.S. 693, 47 S.Ct. 748, 71 L.Ed. 1302.
17 Cf. Jerrold Electronics Corp. v. United States, 365 U.S. 567, 81 S.Ct. 755, 5 L.Ed.2d 806, affirming 187 F.Supp. 545, 563 567 (D.C.E.D.Pa.).
18 Material in italics was added by the amendments; material in brackets was deleted. 'No corporation engaged in commerce 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 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 (to) substantially to lessen competition (between the corporation whose stock is so acquired and the corporation making the acquisition, or to restrain such commerce in any section or community), or to tend to create a monopoly (of any line of commerce).' Other paragraphs of § 7 were also amended in details not relevant to this case. The only other cases to reach this Court, in which the Government's complaints were based, in part, on amended § 7, were Maryland & Virginia Milk Producers Ass'n v. United States, 362 U.S. 458, 80 S.Ct. 847, 4 L.Ed.2d 880, and Jerrold Electronics Corp. v. United States, 365 U.S. 567, 81 S.Ct. 755, 5 L.Ed.2d 806. However, a detailed analysis of the scope and purposes of the 1950 amendments was unnecessary to our disposition of the issues raised in those cases.
19 S. 2277, 67th Cong., 1st Sess. (1921); H.R. 7371, S. 2549, 75th Cong., 1st Sess. (1937); H.R. 10176, S. 3345, 75th Cong., 2d Sess. (1938); H.R. 1517, S. 577, 78th Cong., 1st Sess. (1943); H.R. 2357, H.R. 4519, H.R. 4810, S. 615, 79th Cong., 1st Sess. (1945); H.R. 4519, H.R. 4810; H.R. 5535, 79th Cong., 2d Sess. (1946); H.R. 515, H.R. 3736, S. 104, 80th Cong., 1st Sess. (1947); H.R. 7024, 80th Cong., 2d Sess. (1948); H.R. 988, H.R. 1240, H.R. 2006, H.R. 2734, S. 56, 81st Cong., 1st Sess. (1949).
Public Hearings were held on H.R. 2357, 79th Cong., 1st Sess. (1945); S. 104, 80th Cong., 1st Sess. (1947); H.R. 515, 80th Cong., 1st Sess. (1947), and H.R. 2734, 81st Cong., 1st Sess. (1949—1950).
For reviews of the legislative history of the amendments, see Notes, 52 Col.L.Rev. 766 (1952); 46 Ill.L.Rev. 444 (1951); Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv.L.Rev. 226, 233—238 (1960); Handler and Robinson, A Decade of Administration of the Celler-Kefauver Antimerger Act, 61 Col.L.Rev. 629, 652—674 (1961); Martin, Mergers and the Clayton Act 221—310 (1959).
20 See Arrow-Hart & Hegeman Electric Co. v. Federal Trade Comm., 291 U.S. 587, 54 S.Ct. 532, 78 L.Ed. 1007; Federal Trade Comm. v. Western Meat Co., 272 U.S. 554, 47 S.Ct. 175, 71 L.Ed. 405. See also United States v. Celanese Corp., 91 F.Supp. 14 (D.C.S.D.N.Y.); 1 F.T.C. 541—542; 33 Op.Atty.Gen. 225, 241.
21 This was the manner in which the Federal Trade Commission had viewed the prohibitions of original § 7. See F.T.C.Ann.Rep. 6 7 (1929); Statement by General Counsel Kelley in Hearings before Subcommittee 3 of the House Committee on the Judiciary on H.R. 2734, 81st Cong., 1st Sess. (hereinafter cited as H.R. Hearings on H.R. 2734) 38. However, we have held, since the adoption of the 1950 amendments, that such a construction of § 7 was incorrect. United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057.
22 For expressions of this questionable view of the background of the original Act see F.T.C., The Merger Movement: A Summary Report 2 (1948); testimony of then Representative Kefauver, in Hearings before Subcommittee 2 of the House Committee on the Judiciary on H.R. 515, 80th Cong., 1st Sess. (hereinafter cited as Hearings on H.R. 515) 4—5; remarks of Senator O'Mahoney, 96 Cong.Rec. 16443; H.R.Rep.No.1191, 81st Cong., 1st Sess. 4—5. For a critique of this understanding of the Act see United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 613—615, 77 S.Ct. 872, 887, 1 L.Ed.2d 1057 (dissent), and reviews cited in note 19, supra.
23 See 51 Cong.Rec. 14255, 14316, 14456—14457 (remarks of Senators Chilton, Cummins, Colt, Reed). An amendment offered during the Senate's floor debate by Senator Cummins would have precluded the acquisition by one corporation of the stock 'or any other means of control or participation in the control' of two or more other corporations carrying on business of the same kind or competitive in character. The amendment was not directed at asset acquisitions specifically and was, in any event, overwhelmingly defeated. 51 Cong.Rec. 14315, 14473—14476.
24 See 51 Cong.Rec. 9073—9074, 9271, 14226, 14254, 14316, 14420, 14465—14466 (remarks of Representatives Webb and Carlin and Senators Reed, Cummins and Poindexter); H.R.Rep.No.627, 63d Cong., 2d Sess. 17; S.Rep.No.698, 63d Cong., 2d Sess. 13.
25 See F.T.C.Ann.Rep. for 1928, 19; id. for 1929, at 6, 59; id. for 1930, at 50—51; id. for 1935, at 16, 48; id. for 1936, at 48; id. for 1937, at 15; id. for 1938, at 11, 19, 29; id. for 1939, at 14, 16; id. for 1940, at 12—13; id. for 1941, at 19—20; id. for 1942, at 9; id. for 1943, at 9; id. for 1944, at 8; id. for 1945, at 8—9; id. for 1946, at 12; id. for 1947, at 12; id. for 1948, at 11, 16. The Commission has continued unsuccessfully to urge adoption of the prior notification provision. See id. for 1958, at 7; id. for 1960, at 12.
26 Temporary National Economic Committee, Final Report and Recommendations, S.Doc.No.35, 77th Cong., 1st Sess. 38—40 (1941).
27 F.T.C., The Present Trend of Corporate Mergers and Acquisitions, reprinted in Hearings on H.R. 515, at 300—317; F.T.C., The Merger Movement: A Summary Report, passim; 95 Cong.Rec. 11500—11507; 96 Cong.Rec. 16433, 16444, 16457; S.Rep.No.1775, 81st Cong., 2d Sess. 3, U.S.Code Cong. and Adm.News 1950, p. 4293 et seq. The House Report on the amendments summarized its view of the situation:
'That the current merger movement (during the years 1940 1947) has had a significant effect on the economy is clearly revealed by the fact that the asset value of the companies which have disappeared through mergers amounts to 5.2 billion dollars, or no loss than 5.5 percent of the total assets of all manufacturing corporations—a a significant segment of the economy to be swallowed up in such a short period of time.' H.R.Rep.No.1191, 81st Cong., 1st Sess. 3.
28 See, e.g., 95 Cong.Rec. 11486, 11489, 11494—11495, 11498; 96 CongRec. 16444, 16448, 16450, 16452, 16503 (remarks by the consponsors of the amendments, Representative Celler and Senator Kefauver, and by Representatives Bryson, Keating and Patman and Senators Murray and Aiken). Cf. United States v. Aluminum Co. of America, 148 F.2d 416, 429 (C.A.2d Cir., per Learned Hand, J.): 'Throughout the history of these (antitrust) statutes it has been constantly assumed that one of their purposes was to perpetuate and preserve, for its own sake and in spite of possible cost, an organization of industry in small units which can effectively compete with each other.'
29 Virtually every member of congress who spoke in support of the amendments, indicated that this aspect of the legislation was its salient characteristic. Representative Kefauver, one of the Act's sponsors, testified, 'The bill is not complicated. It proposes simply to plug the loophole in sections 7 and 11 of the Clayton Act.' Hearings on H.R. 515, at 4. The Senate Report on the measure finally adopted summarized the 'Purpose' of the amendment with this single paragraph:
'The purpose of the proposed legislation is to prevent corporations from acquiring another corporation by means of the acquisition of its assets, whereunder (sic) the present law it is prohibited from acquiring the stock of said corporation. Since the acquisition of stock is significant chiefly because it is likely to result in control of the underlying assets, failure to prohibit direct purchase of the same assets has been inconsistent and paradoxical as to the over-all effect of existing law.' S.Rep.No.1775, 81st Cong., 2d Sess. 2, U.S.Code Cong. and Adm.News 1950, p. 4294.
30 The deletion of the 'acquiring-acquired' test was the direct result of an amendment offered by the Federal Trade Commission. In presenting the proposed change, Commission Counsel Kelley made the following points: this Court's decisions had implied that the effect on competition between the parties to the merger was not the only test of the illegality of a stock merger; the Court had applied Sherman Act tests to Clayton Act cases and thus judged the effect of a merger on the industry as a whole; this incorporation of Sherman Act tests, with the accompanying 'rule of reason,' was inadequate for reaching some mergers which the Commission felt were not in the public interest; and the new amendment proposed a middle ground between what appeared to be an overly restrictive test insofar as mergers between competitors were concerned, and what appeared to the Commission to be an overly lenient test insofar as all other mergers were concerned. Congressman Kefauver supported this amendment and the Commission's proposal was then incorporated into the bill which was eventually adopted by the Congress. See Hearings on H.R. 515, at 23, 117—119, 238—240, 259; Hearings before a Subcommittee of the Senate Judiciary Committee on H.R. 2734, 81st Cong., 1st Sess. (hereinafter cited as S. Hearings on H.R. 2734) 147.
31 That § 7 was intended to apply to all mergers—horizontal, vertical or conglomerate—was specifically reiterated by the House Report on the final bill. H.R.Rep. No. 1191, 81st Cong., 1st Sess. 11. And see note 21, supra.
32 That § 7 of the Clayton Act was intended to reach incipient monopolies and trade restraints outside the scope of the Sherman Act was explicitly stated in the Senate Report on the original Act. S.Rep. No. 698, 63d Cong., 2d Sess. 1. See United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 589, 77 S.Ct. 872, 875, 1 L.Ed.2d 1057. This theme was reiterated in congressional consideration of the amendments adopted in 1950, and found expression in the final House and Senate Reports on the measure. H.R.Rep. No. 1191, 81st Cong., 1st Sess. 8 ('Acquisitions of stock or assets have a cumulative effect, and control of the market * * * may be achieved not in a single acquisition but as the result of a series of acquisitions. The bill is intended to permit intervention in such a cumulative process when the effect of an acquisition may be a significant reduction in the vigor of competition.'); S.Rep. No. 1775, 81st Cong., 2d Sess. 4—5, U.S.Code Cong. and Adm.News, 1950, p. 4296 ('The intent here * * * is to cope with monopolistic tendencies in their incipiency and well before they have attained such effects as would justify a Sherman Act proceeding.'). And see F.T.C., The Merger Movement: A Summary Report 6—7.
33 The Report of the House Judiciary Committee on H.R. 515 recommended the adoption of tests more stringent than those in the Sherman Act, 15 U.S.C.A. §§ 1—7, 15 note. H.R.Rep. No. 596, 80th Cong., 1st Sess. 7. A vigorous minority thought no new legislation was needed. Id., at 11—18. Between the issuance of this Report and the Committee's subsequent consideration of H.R. 2734, this Court had decided United States v. Columbia Steel Co., 334 U.S. 495, 68 S.Ct. 1107, 92 L.Ed. 1533, which some understood to indicate that existing law might be inadequate to prevent mergers that had substantially lessened competition in a section of the country, but which, nevertheless, had not risen to the level of those restraints of trade or monopoly prohibited by the Sherman Act. See 96 Cong.Rec. 16502 (remarks of Senator Kefauver); H.R.Rep. No. 1191, 81st Cong., 1st Sess. 10—11. Numerous other statements by Congressmen and Senators and by representatives of the Federal Trade Commission, the Department of Justice and the President's Council of Economic Advisors were made to the Congress suggesting that a standard of illegality stricter than that imposed by the Sherman Act was needed. See, e.g., H.R. Hearings on H.R. 2734, at 13, 29, 41, 117; S. Hearings on H.R. 2734, at 22, 23, 47, 66, 319. The House Judiciary Committee's 1949 Report supported this concept unanimously although five of the nine members who had dissented two years earlier in H.R. Rep. No. 596 were still serving on the Committee. H.R.Rep. No. 1191, 81st Cong., 1st Sess. 7—8. The Senate Report was explicit: 'The committee wish to make it clear that the bill is not intended to revert to the Sherman Act test. The intent here * * * is to cope with monopolistic tendencies in their incipiency and well before they have attained such effects as would justify a Sherman Act proceeding. * * * (The) various additions and deletions—some strengthening and others weakening the bill—are not conflicting in purpose and effect. They merely are different steps toward the same objective, namely, that of framing a bill which, though dropping portions of the so-called Clayton Act test that have no economic significance (the reference would appear to be primarily to the 'acquiring-acquired' standard of the original Act), reaches far beyond the Sherman Act.' S.Rep. No. 1775, 81st Cong., 2d Sess. 4—5, U.S.Code Cong. and Adm.News 1950, p. 4296.
34 As to small company mergers, see H.R. Hearings on H.R. 2734, at 41, 117; S. Hearings on H.R. 2734, at 6, 51; 95 Cong.Rec. 11486, 11488, 11506; 96 Cong.Rec. 16436; H.R.Rep. No. 1191, 81st Cong., 1st Sess. 6—8; S.Rep. No. 1775, 81st Cong., 2d Sess. 4. As to mergers with failing companies, see S.Hearings on H.R. 2734, at 115, 134—135, 198; 96 Cong.Rec. 16435, 16444; H.R.Rep. No. 1191, supra, at 6; S.Rep. No. 1775, supra, at 7.
35 The Federal Trade Commission's amendment, see note 30, supra, included the phrase 'where * * * in any section, community, or trade area, there is reasonable probability that the effect of such acquisition may be to substantially lessen competition.' Congressman Kefauver urged deletion of the word 'community' on the ground that it might suggest, for example, that a merger between two small filling stations in a section of a city was proscribed. Hearings on H.R. 515, at 260. And see also 96 Cong.Rec. 16453. The fear of literal prohibition of all but de minimis mergers through the use of the word 'community' was also cited by the Senate Report as the basis for its retention solely of the word 'section.' S.Rep. No. 1775, 81st Cong., 2d Sess. 4. The reference to 'trade area' was deleted as redundant, when it became clear that the 'section' of the country to which the Act was to apply, referred not to a definite geographic area of the country, but rather the geographic area of effective competition in the relevant line of commerce. See S. Hearings on H.R. 2734, at 38—52, 66—84, 101—102, 132, 133, 144, 145; H.R.Rep. No. 1191, 81st Cong., 1st Sess. 8; S.Rep. No. 1775, 81st Cong., 2d Sess. 4, 5—6. The senate Report cited with approval the definition of the market employed by the Court in Standard Oil Co. of California v. United States, 337 U.S. 293, 299 n. 5, 69 S.Ct. 1051, 1055, 93 L.Ed. 1371.
36 The House Report on H.R. 2734 stated that two tests of illegality were included in the proposed Act: whether the merger substantially lessened competition or tended to create a monopoly. It stated that such effects could be perceived through findings, for example, that a whole or material part of the competitive activity of an enterprise, which had been a substantial factor in competition, had been eliminated; that the relative size of the acquiring corporation had increased to such a point that its advantage over competitors threatened to be 'decisive'; that an 'undue' number of competing enterprises had been eliminated; or that buyers and sellers in the relevant market had established relationships depriving their rivals of a fair opportunity to compete. H.R.Rep. No. 1191, 81st Cong., 1st Sess. 8. Each of these standards, couched in general language, reflects a conscious avoidance of exclusively mathematical tests even though the case of Standard Oil Co. of California v. United States, 337 U.S. 293, 69 S.Ct. 1051, 93 L.Ed. 1371, said to have created a 'quantitative substantiality' test for suits arising under § 3 of the Clayton Act, was decided while Congress was considering H.R. 2734. Some discussion of the applicability of this test to § 7 cases ensued, see, e.g., S. Hearings on H.R. 2734, at 31—32, 169—172; S.Rep. No. 1775, 81st Cong., 2d Sess. 21; 96 Cong.Rec. 16443, but this aspect of the Standard Oil decision was neither specifically endorsed nor impunged by the bills supporters. However, the House Judiciary Committee's Report, issued two months after Standard Oil had been decided, remarked that the tests of illegality under the new Act were intended to be 'similar to those which the courts have applied in interpreting the same language as used in other sections of the Clayton Act.' H.R.Rep. No. 1191, 81st Cong., 1st Sess. 8.
37 A number of the supporters of the amendments voiced their concern that passage of the bill would amount to locking the barn door after most of the horses had been stolen, but urged approval of the measure to prevent the theft of those still in the barn. Which was to say that, if particular industries had not yet been subject to the congressionally perceived trend toward concentration, adoption of the amendments was urged as a way of preventing the trend from reaching those industries as yet unaffected. See, e.g., 95 Cong.Rec. 11489, 11494, 11498 (remarks of Representatives Keating, Yates, Patman); 96 Cong.Rec. 16444 (remarks of Senators O'Mahoney, Murray).
38 Subsequent to the adoption of the 1950 amendments, both the Federal Trade Commission and the courts have, in the light of Congress' expressed intent, recognized the relevance and importance of economic data that places any given merger under consideration within an industry framework almost inevitably unique in every case. Statistics reflecting the shares of the market controlled by the industry leaders and the parties to the merger are, of course, the primary index of market power; but only a further examination of the particular market—its structure, history and probable future—can provide the appropriate setting for judging the probable anticompetitive effect of the merger. See, e.g., Pillsbury Mills, Inc., 50 F.T.C. 555; United States v. Bethlehem Steel Corp., 168 F.Supp. 576 (D.C.S.D.N.Y.); United States v. Jerrold Electronics Corp., 187 F.Supp. 545 (D.C.E.D.Pa.), aff'd, 365 U.S. 567, 81 S.Ct. 755, 5 L.Ed.2d 806. And see U.S. Atty. Gen. Nat. Comm. to Study the Antitrust Laws, Report 126 (1955).
39 In the course of both the Committee hearings and floor debate, attention was occasionally focused on the issue of whether 'possible,' 'probable' or 'certain' anticompetitive effects of a proposed merger would have to be proven to establish a violation of the Act. Language was quoted from prior decisions of the Court in antitrust cases in which each of these interpretations of the word 'may' was suggested as appropriate. H.R.Hearings on H.R. 2734, at 74; S. Hearings on H.R. 2734, at 32, 33, 160—168; 96 Cong.Rec. 16453, 16502. The final Senate Report on the question was explicit on the point:
'The use of these words ('may be') means that the bill, if enacted, would not apply to the mere possibility but only to the reasonable probability of the prescribed (sic) effect * * *. The words 'may be' have been in section 7 of the Clayton Act since 1914. The concept of reasonable probability conveyed by these words is a necessary element in any statute which seeks to arrest restraints of trade in their incipiency and before they develop into full-fledged restraints violative of the Sherman Act. A requirement of certainty and actuality of injury to competition is incompatible with any effort to supplement the Sherman Act by reaching incipient restraints.' S.Rep.No.1775, 81st Cong., 2d Sess. 6, U.S.Code Cong. and Adm.News 1950, p. 4298. See also 51 Cong.Rec. 14464 (remarks of Senator Reed).
40 In addition, a vertical merger may disrupt and injure competition when those independent customers of the supplier who are in competition with the merging customer, are forced either to stop handling the supplier's lines, thereby jeopardizing the goodwill they have developed, or to retain the supplier's lines, thereby forcing them into competition with their own supplier. See United States v. Bethlehem Steel Corp., 168 F.Supp. 576, 613 (D.C.S.D.N.Y.). See also GX 13, R. 215, a letter from Sam Sullivan, an independent shoe retailer, to Clark Gamble, President of Brown Shoe Co.
41 United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 593, 77 S.Ct. 872, 877, 1 L.Ed.2d 1057.
42 The cross-elasticity of production facilities may also be an important factor in defining a product market within which a vertical merger is to be viewed. Cf. United States v. Columbia Steel Co., 334 U.S. 495, 510—511, 68 S.Ct. 1107, 1115, 92 L.Ed. 1533; United States v. Bethlehem Steel Corp., 168 F.Supp. 576, 592 (D.C.S.D.N.Y.). However, the District Court made but limited findings concerning the feasibility of interchanging equipment in the manufacture of nonrubber footwear. At the same time, the record supports the court's conclusion that individual plants generally produced shoes in only one of the product lines the court tound relevant.
43 See generally Bock, Mergers and Markets, An Economic Analysis of Case Law 25—35 (1960).
44 United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 592, 595, 77 S.Ct. 872, 876, 1 L.Ed.2d 1057; A. G. Spalding & Bros. Inc. v. Federal Trade Comm., 301 F.2d 585, 603 (C.A.3d Cir.); American Crystal Sugar Co. v. Cuban-American Sugar Co., 259 F.2d 524, 527 (C.A.2d Cir.); United States v. Bethlehem Steel Corp., 168 F.Supp. 576, 603 (D.C.S.D.N.Y.). See also note 39, supra.
45 15 U.S.C. §§ 1 and 2, 15 U.S.C.A. §§ 1, 2. See S.Rep.No.1775, 81st Cong., 2d Sess. 4—5.
46 See note 33, supra.
47 See note 38, supra, and note 55, infra, and the accompanying text.
48 Although it is 'unnecessary for the Government to speculate as to what is in the 'back of the minds' of those who promote a merger,' H.R.Rep.No.1191, 81st Cong., 1st Sess. 8, evidence indicating the purpose of the merging parties, where available, is an aid in predicting the probable future conduct of the parties and thus the probable effects of the merger. Swift & Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 279, 49 L.Ed. 518; United States v. Maryland & Virginia Milk Producers Ass'n, 167 F.Supp. 799, 804 (D.C.D.C.), aff'd, 362 U.S. 458, 80 S.Ct. 847, 4 L.Ed.2d 880.
49 See H.R.Rep.No.1191, 81st Cong., 1st Sess. 8.
50 See also Comment, 59 Mich.L.Rev. 1236, 1239-1240 (1961).
51 Compare Standard Oil Co. of California v. United States, 337 U.S. 293, 306, 69 S.Ct. 1051, 1058, 93 L.Ed. 1371, with Federal Trade Comm. v. Sinclair Refining Co., 261 U.S. 463, 43 S.Ct. 450, 67 L.Ed. 746.
52 H.R.Rep.No.1191, 81st Cong., 1st Sess. 6; S.Rep.No.1775, 81st Cong., 2d Sess. 7, U.S.Code Cong. and Adm.News 1950, p. 4299.
53 See note 34, supra. Compare Harley-Davidson Co., 50 F.T.C. 1047, 1066, and U.S.Atty.Gen.Nat.Comm. to Study the Antitrust Laws, Report 143 (1955).
54 See note 8, supra.
55 Moreover, ownership integration is a more permanent and irreversible tie than is contract integration. See Kessler and Stern, Competition, Contract, and Vertical Integration, 69 Yale L.J. 1, 78 (1959).
56 See generally Pillsbury Mills, Inc., 50 F.T.C. 555, 572 573; United States v. Bethlehem Steel Corp., 168 F.Supp. 576, 606 (D.C.S.D.N.Y.); Stigler, Mergers and Preventive Antitrust Policy, 104 U. of Pa.L.Rev. 176, 180 (1955); U.S.Atty.Gen.Nat. Comm. to Study the Antitrust Laws, Report 124 (1955).
57 See Handler and Robinson, A Decade of Administration of the Celler-Kefauver Antimerger Act, 61 Col.L.Rev. 629, 668 (1961).
58 See note 39, supra, and accompanying text.
59 United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 589, 597, 77 S.Ct. 872, 879, 1 L.Ed.2d 1057.
60 See note 28, supra and accompanying text.
61 See also Stigler, Mergers and Preventive Antitrust Policy, 104 U. of Pa.L.Rev. 176, 180 (1955).
62 See, e.g., United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700; Sugar Institute, Inc. v. United States, 297 U.S. 553, 56 S.Ct. 629, 80 L.Ed. 859; United States v. Paramount Pictures, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260; Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199.
63 See note 30, supra.
64 American Crystal Sugar Co. v. Cuban-American Sugar Co., 152 F.Supp. 387, 398 (D.C.S.D.N.Y.), aff'd, 259 F.2d 524 (C.A.2d Cir.); S.Rep. No. 1775, 81st Cong., 2d Sess. 5—6.
65 The illustrate: If two retailers, one operating primarily in the eastern half of the Nation, and the other operating largely in the West, competed in but two mid-Western cities, the fact that the latter outlets represented but a small share of each company's business would not immunize the merger in those markets in which competition might be adversely affected. On the other hand, that fact would, of course, be properly considered in determining the equitable relief to be decreed. Cf. United States v. Jerrold Electronics Corp., 187 F.Supp. 545 (D.C.E.D.Pa.), aff'd, 365 U.S. 567, 81 S.Ct. 755, 5 L.Ed.2d 806.
66 In describing the geographic market in which Brown and Kinney competed, the District Court included cities in which Brown 'Franchise Plan' and 'Wohl Plan' stores were located. Although such stores were not owned or directly controlled by Brown, did not sell Brown products exclusively and did not finance inventory through Brown, we believe there was adequate evidence before the District Court to support its finding that such stores were 'Brown stores.' To such stores Brown provided substantial assistance in the form of merchandising and advertising aids, reports on market and management research, loans, group life and fire insurance and centralized purchase of rubber footwear from manufacturers on Brown's credit.
For these services, Brown required the retailer to deal almost exclusively in Brown's products in the price scale at which Brown shoes sold. Further, Brown reserved the power to terminate such franchise agreements on 30 days' notice. Since the retailer was required, under this plan, to invest his own resources and develop his good will to a substantial extent in the sale of Brown products, the flow of which Brown could readily terminate, Brown was able to exercise sufficient control over these stores and departments to warrant their characterization as 'Brown' outlets for the purpose of measuring the share and effect of Brown's competition at the retail level. Cf. Standard Oil Co. of California v. United States, 337 U.S. 293, 69 S.Ct. 1051, 93 L.Ed. 1371.
67 The District Court limited its findings to cities having a population of at least 10,000 persons, since Kinney operated only in such areas.
68 See Standard Oil Co. of California v. United States, 337 U.S. 293, 313, 69 S.Ct. 1051, 1061, 93 L.Ed. 1371; U.S. Atty. Gen. Nat. Comm. to Study the Antitrust Laws, Report 126 (1955): 'While sufficient data to support a conclusion is required, sufficient data to give the enforcement agencies, the courts and business certainty as to competitive consequences would nullify the words 'Where the effect may be' in the Clayton Act and convert them into 'Where the effect is." And the Committee of the Judicial Conference of the United States on Procedure in Antitrust and Other Protracted Cases has also emphasized the need for limiting the mass of possibly relevant evidence in cases of this type in order to avoid confusion and its concomitant increased possibility of error. 13 F.R.D. 62, 64.
69 Brown objects, for example, to the fact that these exhibits are drafted on the basis of the cities concerning which census information was available, rather than on the basis of the cities and their environs—as the relevant markets were defined by the District Court. However, the record shows that the statistics of shoe sales in cities by and large conform to statistics of shoe sales in counties in which those cities are the principal metropolitan area. See Appendix D,
infra. Thus, we find no error in a conclusion drawn as to a slightly larger market from the available record of sales in cities alone. Brown also objects to the use of pairage sales, rather than dollar volume, as the basis for defining the size, and measuring Brown's shares, of the market. However, since Brown and Kinney sold shoes primarily in the low and medium price ranges, and in the light of the conceded spread in shoe prices, we agree that sales measured by pairage provide a more accurate picture of the Brown-Kinney shares of the market than do sales measured in dollars. Detailed statistics of shoe sales were available only in terms of dollar volume, however, and Brown objects to the method by which the Government has converted those figures into those reflecting sales in terms of pairage. The Government's conversion was, with some exceptions, based on national median income and national averages of shoe prices and the ratio of men, women and children in the population. The District Court accepted expert testimony offered by the Government to the effect that shoe price and population age, sex and income variations in the relevant cities produced, at most, a 6% error in the converted statistics, and that his error was as likely to favor Brown (by increasing the universe of sales against which Brown's shares were to be measured) as it was to disfavor it. We find no error in the District Court's acceptance of the Government's evidence as to the propriety of the accounting methods its experts employed. Lastly, Brown objects that the statistics concerning its own pairage sales were improperly derived since they included sales by its wholesale distributors to the retail outlets on its franchise plans in the same category as sales to ultimate consumers by its owned retail stores. Again, while recognizing a possible margin of error in statistics combining sales at two levels of distribution, we believe they provide an adequate basis upon which to gauge Brown sales through outlets it controlled. Particularly as the franchise stores were required to finance their own inventory, does it seem reasonable to conclude that most of their purchases from Brown's distributors were eventually resold. In summary, although appellant may point to technical flaws in the compilation of these statistics, we recognize that in cases of this type precision in detail is less important than the accuracy of the broad picture presented. We believe the picture as presented by the Government in this case is adequate for making the determination required by § 7: whether this merger may tend to lessen competition substantially in the relevant markets.
70 Although the sum of the parties' pre-existing shares of the market will normally equal their combined share of the immediate post-merger market, we recognize that this share need not remain stable in the future. Nevertheless, such statistics provide a graphic picture of the immediate impact of a merger, and, as such, also provide a meaningful base upon which to build conclusions of the probable future effects of the merger.
71 See United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 595—596, 77 S.Ct. 872, 878, 1 L.Ed.2d 1057; A. G. Spalding & Bros. Inc. v. Federal Trade Comm., 301 F.2d 585, 612 615 (C.A.3d Cir.); United States v. Bethlehem Steel Corp., 168 F.Supp. 576, 603—611 (D.C.S.D.N.Y.). Cf. Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv.L.Rev. 226, 279, 308—311 (1960).
72 See note 38, supra. A company's history of expansion through mergers presents a different economic picture than a history of expansion through unilateral growth. Internal expansion is more likely to be the result of increased demand for the company's products and is more likely to provide increased investment in plants, more jobs and greater output. Conversely, expansion through merger is more likely to reduce available consumer choice while providing no increase in industry capacity, jobs or output. It was for these reasons, among others, Congress expressed its disapproval of successive acquisitions. Section 7 was enacted to prevent even small mergers that added to concentration in an industry. See S.Rep. No. 1775, 81st Cong., 2d Sess. 5. Cf. United States v. Jerrold Electronics Corp., 187 F.Supp. 545, 566 (D.C.E.D.Pa.) aff'd, 365 U.S. 567, 81 S.Ct. 755, 5 L.Ed.2d 806; United States v. Bethlehem Steel Corp., 168 F.Supp. 576, 606 (D.C.S.D.N.Y.).
73 See note 5, supra.
74 Although statistics concerning the degree of concentration and the rank of Brown-Kinney in terms of controlled retail stores in each of the relevant product and geographic markets would have been more helpful in analyzing the results of this merger, neither side has presented such statistics. The figures in the record, based on national rank, are nevertheless, useful in depicting the trends in the industry.
* The percentages in these columns reflect sales of Brown brand shoes through Brown owned or controlled outlets.
* See footnote on p.347.
* See footnote on p.347.
Source:GX 9, 214, R.60-70, 1223-1227;DX RR, DDDD-1, DDDD-2, R. 3892-4315, 4939-5299, 5300-5652.
* The percentages in these columns reflect sales of Brown brand shoes through Brown owned or controlled outlets, with the single exception of Concord, N. H., in which case they reflect the sale of Brown brand shoes through all outlets, regardless of ownership or control, and are, therefore, marginally too high.
* See footnote on p. 350.
Source: GX 9, 214, R. 60-70, 1219-1222; DX RR,DDDD-1, DDDD-2, R. 3892-4315, 4939-5299, 5300-5652.
* The percentages in these columns reflect sales of Brown brand shoes through Brown owned or controlled outlets, with the single exception of Concord, N. H., in which case they reflect the sale of Brown brand shoes through all outlets, regardless of ownership or control, and are, therefore, marginally too high.
* See footnote on p. 350.
Source: GX 9, 214, R. 60-70, 1219-1222; DX RR,DDDD-1, DDDD-2, R. 3892-4315, 4939-5299, 5300-5652.
1 Based on dollar values from DXDDDD-1, DDDD-2, NNNN, UUUUUU, R.4939-5299, R.5300-5652, 5780-5818, 7155-7313, GX 241D, R.2014-2365.
2 Total area dollar estimates of footwear sales from GX 242, R.2807-2819, and DX UUUUUU, R. 7155-7313. Area dollar sales of footwear by Brown and kinney owned or controlled outlets from DDDD-1, DDDD-2, NNNN, UUUUU, R.4939-5299,5300-5652,5780-5818, 7155-7313; GX241D, R.2014-2365.
* Since the judgment below can be supported on this theory, there is no need to inquire into any tendency to create a monopoly.
1 'A final judgment is one which disposes of the whole subject, gives all the relief that was contemplated, provides with reasonable completeness, for giving effect to the judgment and leaves nothing to be done in the cause save to superintend, ministerially, the execution of the decree.' City of Louisa v. Levi, 6 Cir., 140 F.2d 512, 514. See, e.g., Grant v. Phoenix Mutual Life Ins. Co., 106 U.S. 429, 1 S.Ct. 414, 27 L.Ed. 237; Taylor v. Board of Education, 2 Cir., 288 F.2d 600.
2 For example, the report which accompanied the 1925 Act to the floor of the Senate said of the cases in which direct appeal from a District Court to the Supreme Court was retained: 'As is well known, there are certain cases which, under the present law, may be taken directly from the district court to the Supreme Court. Without entering into a description of these four classes of cases, it is sufficient to say that under the existing law these are cases which must be heard by three judges, one of whom is a circuit judge.' S.Rep.No.362, 68th Cong., 1st Sess. 3 (1924). (Emphasis added.) This generalization was obviously erroneous since the Expediting Act provided for direct review in this Court of government antitrust cases decided by a single district judge.
3 As the Court noted in United States v. E. I. du Pont de Nemours & Co., 351 U.S. 377, 393, 76 S.Ct. 994, 1006, 100 L.Ed. 1264, 'one can theorize that we have monopolistic competition in every nonstandardized commodity with each manufacturer having power over the price and production of his own product.' If the Government were permitted to choose its 'line of commerce' it could presumably draw the market narrowly in a case that turns on the existence vel non of monopoly power and draw it broadly when the question is whether both parties to a merger are within the same competitive market.
4 The schedule in the record of Kinney's outside shoe suppliers for the calendar year 1955 lists 319 vendors, but 122 of these supplied less than $1,000 worth of goods during the year.
5 In 1951 Brown purchased the Wohl Shoe Company, which operated leased shoe departments in department stores throughout the country. Before its acquisition of Wohl, Brown had supplied 12.8% of Wohl's shoe requirements; by 1957, it was supplying 33.6% of Wohl's needs.
In 1953, Brown purchased a partial interest in a small chain of retail stores in Los Angeles known as Wetherby-Kayser. Before this purchase, Brown had supplied 10.4% of Wetherby's shoes; within one year this percentage increased to almost 50%.
6 In addition, it appears from the record that shortly after the merger was effected, Kinney abandoned its earlier policy of selling only Kinney-brand shoes (80% of which were 'made up' for it by its manufacturers) and began selling a considerable number of Brown's branded and advertised shoes. Along with the indications in the record that Kinney was beginning also to sell higher-priced shoes in its suburban outlets, this suggests that Brown could supply much of Kinney's needs with only a minimal additional capital investment.
7 The existence of such gaps in the record make a fair assessment of the effects of this merger more difficult than it would otherwise be. One of the reasons why I would not consider the horizontal aspect of this merger is my conviction that the data supplied by the Government is entirely inadequate for a proper evaluation of the impact of the horizontal merger on competition.
8 The change in Kinney policy whereby it now carries shoes bearing the Brown brand (see note 6, supra) tends to make retailer competition still more difficult.
9 In terms of bare numbers, the quantity of retail outlets owned or controlled by the major manufacturers has undoubtedly been increasing since 1947. But much of the data in the record is incomplete in this regard because it is based on varying standards. Thus, while the Government argues that the increase in percentage of national retail sales by shoe chains owning 101 or more outlets from 20.9% in 1948 to 25.5% in 1954 proves the trend toward 'oligopoly,' the apellant's statistics, founded upon retail sales by all outlets (including general merchandise and clothing stores), show that retail sales by chains of 11 or more stood at a constant 19.5% of national dollar volume in both 1948 and 1954. Moreover, the apparent decline in the proportional share of the country's shoe needs supplied by the largest manufacturers between 1947 and 1955 belies any claim that shoe production is becoming 'oligopolistic.' Whereas the largest four manufacturers supplied 25.9% of the Nation's needs in 1947, the largest eight supplied 31.4%, and the largest 15 supplied 36.2%, in 1955 the equivalent percentages were 22%, 27%, and 32.5%.
There is no suggestion in the record as to whether earlier purchases of retail chains by shoe manufacturers reduced the number of independent manufacturers or otherwise harmed competition. Consequently, while the record does establish that manufacturers have been increasing the number of their retail outlets, it is entirely silent on the effects of this vertical expansion.
| 78
|
371 U.S. 18
83 S.Ct. 11
9 L.Ed.2d 1
UNITED STATESv.Evetts HALEY, Jr. UNITED STATES v. UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF TEXAS.
Nos. 148, 139, Misc.
Oct. 15, 1962.
PER CURIAM.
1
The order of the District Court, dated February 26, 1962, denying the motion of the United States for judgment in this action evidently rested on a misconception of the scope and effect of this Court's per curiam opinion on the Government's earlier appeal, 358 U.S. 644, 79 S.Ct. 537, 3 L.Ed.2d 567, and of its judgment issued February 24, 1959. In light of the issues tendered in the papers filed on that appeal there can be no doubt that this Court's judgment finally established the Government's right to the relief sought in this action, subject only to the District Court's resolution of Haley's procedural defense, still unadjudicated, to the effect that the Government had failed to comply with conditions requisite to the effective establishment of a wheat acreage allotment for Haley. See Jurisdictional Statement of the United States and Appellee's Statement Opposing Jurisdiction and Motion to Dismiss or Affirm in No. 587, October Term, 1958; Appellee's Motion to Vacate the Court's Judgment of February 24, 1959, denied April 27, 1959, 359 U.S. 977, 79 S.Ct. 896, 3 L.Ed.2d 927; and Appellee's Motion for Rehearing, denied April 27, 1959, 359 U.S. 981, 79 S.Ct. 896, 3 L.Ed.2d 931.
2
More particularly, this Court then necessarily decided (1) that it had jurisdiction over such appeal; (2) that the relevant provisions of the Agricultural Adjustment Act of 1938, 52 Stat. 31, as amended, 7 U.S.C. § 1281 et seq., 7 U.S.C.A. § 1281 et seq., embraced the conduct of Haley complained of in this action; and (3) that the Act was constitutional as applied in the premises. Under the remand ordered by this Court's judgment of February 24, 1959, there was thus left open to the District Court only the adjudication of Haley's above-mentioned procedural defense. The District Court erred in believing that it was not foreclosed from inquiring into this Court's jurisdiction over the Government's appeal and from reinstating its own original judgment in the case, which appears to have been the effect of its denial of the Government's motion for judgment following remand. See In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S.Ct. 291, 293, 40 L.Ed. 414.
3
The District Court's error should be rectified without delay, and we think that the proper means for accomplishing this is by mandamus. 28 U.S.C. § 1651, 28 U.S.C.A. § 1651; see In re Potts, 166 U.S. 263, 17 S.Ct. 520, 41 L.Ed. 994; United States v. United States District Court, 334 U.S. 258, 263, 264, 68 S.Ct. 1035, 1037, 92 L.Ed. 1351. Accordingly, in No. 139, Misc., the Government's motion for leave to file a petition for a writ of mandamus, and its petition for a writ of mandamus, are granted.
4
We shall not, however, issue a formal writ at this time, since we are confident that the District Court, once its misconception of our judgment of February 24, 1959, has been called to its attention, will promptly take steps (1) to set aside its order of February 26, 1962, denying the motion of the United States for judgment; (2) to proceed to resolve Haley's aforesaid procedural defense; (3) if such defense is found to be insufficient, to enter a final judgment in this action in favor of the United States; and (4) if such defense is found sufficient, to enter judgment accordingly. Cf. Ex parte Northern Pac. R. Co., 280 U.S. 142, 530, 50 S.Ct. 70, 157, 74 L.Ed. 233.
5
In view of our disposition in No. 139, Misc., it becomes unnecessary to consider whether this Court has jurisdiction over the Government's appeal in No. 148, and the motion to dismiss the appeal in that case is accordingly granted and the appeal is dismissed. It is so ordered.
6
Motion and petition granted in No. 139 Misc.; appeal in No. 148 dismissed.
7
Mr. Justice GOLDBERG took no part in the consideration or decision of these cases.
| 89
|
371 U.S. 28
83 S.Ct. 9
9 L.Ed.2d 9
Edward WALTONv.STATE OF ARKANSAS.
No. 18, Misc.
Decided Oct. 22, 1962.
John C. Finley, for petitioner.
Frank Holt, Atty. Gen., of Arkansas, and Thorp Thomas and Jack L. Lessenberry, Asst. Attys. Gen., for respondent.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.
2
In this capital case the Supreme Court of Arkansas sustained petitioner's conviction against the claim, among others, that in violation of the Fourteenth Amendment to the Constitution of the United States his involuntary confession of the crime was introduced in evidence at the trial. Walton v. State, Ark., 350 S.W.2d 302. Petitioner contends that independently of this claim his conviction was unconstitutional because he was not represented by counsel at the time of his arraignment in the course of which he acknowledged the voluntariness of his confession, such acknowledgment being later used in evidence against him at the trial.
3
When the Arkansas Supreme Court decided this case it did not have the benefit of this Court's decision in Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, which was rendered subsequent to the state court's decision and on the same day that it denied rehearing upon a petition filed prior to the announcement of the Hamilton case. Further, we are unable to conclude from the record filed in this Court either that petitioner had counsel at the time of the arraignment proceedings or, if not, that he was advised of his right to have counsel at such proceedings and that he understandingly and intelligently waived that right.
4
In these circumstances we conclude that the judgment of the Supreme Court of Arkansas should be vacated and the case remanded to that court for further consideration in light of Hamilton v. Alabama, supra, or for such other appropriate proceedings as may be available under state law for resolution of this constitutional claim. It is so ordered.
5
Judgment vacated and case remanded.
| 01
|
371 U.S. 30
83 S.Ct. 6
9 L.Ed.2d 5
Julia IOANNOUv.NEW YORK et al.
No. 191.
Oct. 22, 1962.
Sydney J. Schwartz, for appellant.
Louis J. Lefkowitz, Atty. Gen. of New York, Paxton Blair, Sol. Gen., and Daniel M. Cohen, 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
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
3
I think this appeal presents substantial federal questions and that jurisdiction should be noted.
4
Under § 269 of the New York Surrogate's Court Act (now § 269 a) a Czechoslovakian beneficiary of a New York estate has been denied the power to make a gift of her interest in the estate to her niece residing in England. This result flows from a determination by the Surrogate's Court of Bronx County that under its present government conditions are such in Czechoslovakia that it is unlikely the beneficiary would be able to enjoy her interest. Therefore its use was denied her entirely, though none of it, so far as this record shows, will ever reach Czechoslovakia.
5
Czechoslovakia, though Communist, is a sovereign state recognized by the United States. The descent and distribution of property in one state to the citizens of another state is clearly a proper subject of international relations. See Geofroy v. Riggs, 133 U.S. 258, 10 S.Ct. 295, 33 L.Ed. 642. The Constitution by Art. I, § 10, imposes severe limitations on the several States' power to affect the foreign relations of the United States. '(C) omplete power over international affairs is in the national government and is not and cannot be subject to any curtailment or interference on the part of the several states.' United States v. Belmont, 301 U.S. 324, 331, 57 S.Ct. 758, 761, 81 L.Ed. 1134. Thus, if New York has, in effect, regulated an area of our international relations that should be regulated only by the Federal Government, or if the New York statute conflicts with existing federal policy, then that statute cannot be given effect. For '(i)f state action could defeat or alter our foreign policy, serious consequences might ensue. The nation as a whole would be held to answer if a State created difficulties with a foreign power.' United States v. Pink, 315 U.S. 203, 232, 62 S.Ct. 552, 566, 86 L.Ed. 796. Cf. Brown v. Maryland, 12 Wheat. 419, 6 L.Ed. 678.
6
Many areas of our law reflect the view that foreign policy can be shaped solely by the Federal Government. Our courts will not inquire into the validity of an act of a recognized foreign state (Oetjin v. Central Leather Co., 246 U.S. 297, 38 S.Ct. 309, 62 L.Ed. 726), even though the act is attacked on the ground that it had been enacted by an unfriendly nation and is violative of United States public policy, Bernstein v. Van Hegghen Freres S.A., 2 Cir., 163 F.2d 246; Pons v. Republic of Cuba, 111 U.S.App.D.C. 141, 294 F.2d 925. Likewise, a foreign country is immune from suit for injuries caused in its commercial transactions (Berizzi Bros. Co. v. S. S. Pesaro, 271 U.S. 562, 46 S.Ct. 611, 70 L.Ed. 1088), even though this result is not required by international law (Restatement Foreign Relations Law of the United States, proposed official draft, 1962, § 72). But, if the Executive Department of the Federal Government indicates its views on whether immunity should be allowed those views will control. Republic of Mexico v. Hoffman, 324 U.S. 30, 65 S.Ct. 530, 89 L.Ed. 729.
7
Admittedly the several States have traditionally regulated the descent and distribution of estates within their boundaries. This does not mean, however, that their regulations must be sustained if they impair the effective exercise of the Nation's foreign policy. See Miller, The Corporation as a Private Government in the World Community, 46 Va.L.Rev. 1539, 1542—1549. Where those laws conflict with a treaty, they must give way to the superior federal policy. See Kolovrat v. Oregon, 366 U.S. 187, 81 S.Ct. 922, 6 L.Ed.2d 218. Yet even in absence of a treaty, a State's policy may disturb foreign relations. As we stated in Hines v. Davidowitz, 312 U.S. 52, 64, 61 S.Ct. 399, 402, 85 L.Ed. 581: 'Experience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another's subjects inflicted, or permitted, by a government.' Certainly a State could not deny admission to a traveler from Czechoslovakia nor bar its citizens from going there. The Passenger Cases (Smith v. Turner), 7 How. 283, 12 L.Ed. 702; Crandall v. Nevada, 6 Wall. 35, 18 L.Ed. 744; cf. Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204. The present restraints are not as gross an intrusion in the federal domain as those others would be. Yet they affect international relations in a persistent and subtle way. The practice of state courts in withholding remittances to legatees residing in Communist countries or in preventing them from assigning them is notorious. Chaitkin, The Rights of Residents of Russia and its Satellites to Share in Estates of American Decedents, 25 So.Calif.L.Rev. 297.
8
The issue is of importance to our foreign relations and I think this Court should decide whether, under existing federal policy and practice, the New York statute should be given effect. The issue was raised in No. 123, 1953 Term, where the appeal was dismissed. Matter of Braier, 305 N.Y. 148, 111 N.E.2d 424, app. dism. sub nom. Kalmane v. Green, 346 U.S. 802, 74 S.Ct. 32, 98 L.Ed. 334. Justices Black, Douglas, and Burton voting to note jurisdiction. The question seems substantial and does not seem to be foreclosed by Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633. We should note jurisdiction and ask the Solicitor General to file a brief.
9
A substantial question of due process is also tendered. In New York the Surrogate apparently holds no hearing but simply determines that any payments to or by people behind the 'iron curtain' are barred by the statute. See Matter of Geiger, 7 N.Y.2d 109, 195 N.Y.S.2d 831, 164 N.E.2d 99. But as said by Judge Froessel (and Judge Fuld) dissenting in that case:
10
'Had the Surrogate held a hearing, it might well have been developed, as alleged in the petition, that the beneficiaries are 'all of advanced age, who are (now) living (in Hungary) under difficult conditions and are in great need of assistance', and that monetary assistance 'can be transferred to them by sending food and clothing packages to each of them * * * free of duty and of any taxation'. It might well have been further developed that these nationals have no way of leaving Hungary; that they are the very victims of the 'events in Hungary' to which the Surrogate referred; that they will probably die there and never receive the benefit of their legacies if the moneys are withheld; and that there are agencies which can assure delivery of food and clothing packages in reasonable amounts to named individuals.
11
'It seems to me that the Surrogate abused his discretion in failing to grant a hearing so that these facts might have been developed and the matter decided, not on the basis of an application to pay legacies to iron-curtain country nationals, but on the application as made, namely, to allow reasonable sums of money for conversion into food and clothing packages upon a proper showing that they would reach the beneficiaries.' Id., pp. 113—114, 195 N.Y.S.2d pages 834, 835, 164 N.E.2d pages 101, 102.
12
This means that no one residing in Czechoslovakia may receive or make any disposition of property under a will probated in New York, even though it is done without the intercession of the foreign government or in fact without its knowledge, and even though there is no danger of the funds being confiscated or in fact being within Czechoslovakia's reach. If New York's purpose is to preclude unfriendly foreign governments from obtaining funds that will assist their efforts hostile to this Nation's interests, as Matter of Getream, 200 Misc. 543, 107 N.Y.S.2d 225, and In re Renard's Estate, 179 Misc. 885, 39 N.Y.S.2d 968, suggest, the complete prohibition of assignments made in those countries may have some basis in reason. But, if this is the purpose behind the statute, it seemingly is an attempt to regulate foreign affairs. If the statute is designed to effectuate the testator's intent, as appellees seem to argue, it would seem to have no basis in reason.
13
Viktoria Miculka, who was a distributee of an estate of a New York decedent, assigned at the American Embassy in Prague her interest in the estate to petitioner, her niece who lives in London. There is no connection between the fund in New York and Czechoslovakia because of the fact that Viktoria Miculka resides in Czechoslovakia. There is no evidence whatsoever that any of the funds will ever reach Czechoslovakia. Viktoria Miculka is an old woman who will probably never leave her homeland. An irrebuttable presumption that the testator would not have wanted his beneficiary to make a voluntary assignment of his interest under these circumstances flies in the face of reason or common sense and is as questionable as the one sought to be sustained in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519.
| 89
|
371 U.S. 62
83 S.Ct. 111
9 L.Ed.2d 26
Edward J. WETZELv.OHIO.
No. 200.
Nov. 5, 1962.
PER CURIAM.
1
This is an appeal from a judgment of the Supreme Court of Ohio affirming a judgment of conviction of a criminal offense entered in the Court of Common Pleas, Wyandot County, Ohio.
2
The motion to substitute Margie Wetzel, Administratrix of the Estate of Edward J. Wetzel, who died April 26, 1962, as appellant in place of Edward J. Wetzel is granted. The motion of appellee to dismiss the appeal for want of a substantial federal question is granted.
3
Mr. Justice DOUGLAS, concurring.
4
Appellant was convicted of possessing obscene matter with intent to sell it under Ohio Statutes § 2905.34. On May 25, 1960, he was 'sentenced to an indeterminate period of not less than one year nor more than seven years and to pay costs of this prosecution.' The sentence was suspended pending appeal in the Ohio courts. On January 17, 1962, the Supreme Court of Ohio reversed the Court of Appeals, which had reversed appellant's conviction, and on February 2, 1962, ordered the trial court's judgment executed. On the same day a warrant was issued by the trial court authorizing the sheriff to sell enough of appellant's property to satisfy cost of $469.20. This was in accordance with Revised Code § 2949.15. On February 27, 1962, the Supreme Court of Ohio suspended sentence 'until further order' of that court.
5
Appellant died pending appeal to this Court. His wife, as administratrix, has moved to be substituted as a party.
6
When a convicted and fined federal criminal defendant has died pending review of his case here it has been the practice of this Court to dismiss his case and leave the disposition of his fine to the lower federal courts. See American Tobacco Co. v. United States, 328 U.S. 781, 815, 66 S.Ct. 1125, 1141, 90 L.Ed. 1575; United States v. Johnson, 319 U.S. 503, 520, 63 S.Ct. 1233, 1241, 87 L.Ed. 1546. But this practice is premised on the ground 'that in the federal domain prosecutions abate * * * on the death of (a) * * * defendant.' Melrose Distillers Inc. v. United States, 359 U.S. 271, 272, 79 S.Ct. 763, 765, 3 L.Ed.2d 800. See Daniel v. United States, 5 Cir., 268 F.2d 849. But such is not the case in Ohio. There the appeal will be dismissed as moot (Makley v. State, 128 Ohio St. 571, 192 N.E. 738) but 'the dismissal of an appeal, because of the death of the defendant during the pendency thereof, leaves the judgment as it was before the appeal proceeding was instituted.' State v. Sholiton, Ohio App., 128 N.E.2d 666, 667.
7
In the Sholiton case the court expressly refused to pass on whether decedent's estate would be liable for costs, because the issue was not presented. It is apparently the rule in Ohio, however, that costs can be collected from a deceased convicted criminal's estate. State for Use of Clark County v. Keifer, 16 Ohio N.P.N.S. 41. See Ohio Jur.2d, Costs, § 89. Under the present sentence costs seem to be a penalty which is part of the sentence. See Hayes v. Pontius, Ohio Com.Pl., 1 Ohio Supp. 289.
8
Thus, under existing Ohio law it appears that Wetzel's estate will have to pay a $469.20 penalty to the State of Ohio unless this Court reverses his conviction. His administratrix, and probable heir, is rightly concerned about this and is the proper party to substitute.
9
It is often stated that 'Where no controversy remains, except as to costs, this court will not pass upon the merits.' Heitmuller v. Stokes, 256 U.S. 359, 41 S.Ct. 522, 65 L.Ed. 990; see Paper-Bag Cases, 105 U.S. 766, 26 L.Ed. 959; Glendale Elastic Fabrics Co. v. Smith, 100 U.S. 110, 25 L.Ed. 547. The genesis of these cases was Canter v. American Ins. Co., 3 Pet. 307, 7 L.Ed. 688, wherein the Court stated:
10
'As to the costs and expenses, we perceive no error in the allowance of them in the circuit court. They are not matters positively limited by law, but are allowed in the exercise of a sound discretion of the court. And, besides, it may be added, that no appeal lies from a mere decree respecting costs and expenses.' Id., 3 Pet. at 319.
11
As stated by Chief Justice Taft, writing for the Court in Newton v. Consolidated Gas Co., 265 U.S. 78, 82—83, 44 S.Ct. 481, 482—483, 68 L.Ed. 909:
12
'There is no doubt that, as a general rule, an appeal does not lie from a decree solely for costs * * * (This rule) is easily deducible from the discretion vested in the trial court * * *. But the rule is not absolute, and should not be enforced when the trial court assumes the power to assess * * * costs * * * not legally assessable as such.' (Italics added.)
13
Those were all civil cases and this is a criminal one. Yet the rule of the civil cases should obtain here.
14
In this case the trial court had no discretion concerning the matter of costs. Under Ohio law costs are automatically assessed against a convicted felon. See Ohio Revised Code, §§ 2949.14, 2949.15. The costs were not 'legally assessable' if the conviction was invalid.
15
In Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393, the question was raised as to whether or not the case was moot because the petitioner had been released from prison after his petition for certiorari had been granted. Id., p. 358, 77 S.Ct., p. 484. The issue presented was not that of guilt, but instead one that related only to the propriety or legality of the sentence imposed. We said 'The possibility of consequences collateral to the imposition of sentence is sufficiently substantial to justify our dealing with the merits.' Ibid. Though we divided on the merits, we were unanimous on that point.
16
In the present case there is a strong probability of collateral consequences or 'penalties or disabilities.' St. Pierre v. United States, 319 U.S. 41, 43, 63 S.Ct. 910, 911, 87 L.Ed. 1199. If the conviction stands, those collateral consequences or penalties will be the likely reduction of appellant's estate through the collection of costs from it.
17
To support her substitution Mrs. Wetzel asserts that the deceased and his family have a substantial interest in clearing his name, that she should be allowed to protect the estate from the penalty that may be collected from it, and that the importance of the issues presented by this appeal justifies review. It is unnecessary to decide in this case whether the decedent's or his family's interest in his good name satisfies the case-or-controversy requirement. Cf. St. Pierre v. United States, 319 U.S. 41, 43, 63 S.Ct. 910, 911, 87 L.Ed. 1199. For I am convinced that under existing precedent decedent's wife and administratrix has a sufficient interest in protecting his estate from unlawful penalties to be substituted as a party and maintain this appeal.
18
For these reasons I believe the motion to substitute is properly granted. But on the facts of this record I have concluded that a substantial federal question is not presented.
19
Mr. Justice BLACK, while joining this opiniion insofar as it deals with the motion to substitute, believes that a substantial federal question is presented and that probable jurisdiction should be noted.
20
Mr. Justice CLARK, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissents, believing that the appeal abated upon the death of the appellant, Edward J. Wetzel. Menken v. Atlanta, 131 U.S. 405, 9 S.Ct. 794, 33 L.Ed. 221 (1889). This Court has held numerous times that the existence of a judgment taxing costs in such cases cannot alone prevent dismissal here. Heitmuller v. Stokes, 256 U.S. 359, 362, 41 S.Ct. 522, 523, 65 L.Ed. 990 (1921); Wingert v. First National Bank, 223 U.S. 670, 32 S.Ct. 391, 56 L.Ed. 605 (1912); Paper-Bag Machine Co. v. Nixon, 105 U.S. 766, 772, 26 L.Ed.2d 959 (1881); Glendale Elastic Fabrics Co. v. Smith, 100 U.S. 110, 25 L.Ed. 547 (1879). Although such judgments may confer appellate jurisdiction to inquire into the lower court's power to tax costs, Newton v. Consolidated Gas Co., 265 U.S. 78, 82—83, 44 S.Ct. 481, 482, 68 L.Ed. 909 (1924); Citizens' Bank of Louisiana v. Cannon, 164 U.S. 319, 323—324, 17 S.Ct. 89, 90, 41 L.Ed. 451 (1896); cf. Intertype Corp. v. Clark-Congress Corp., 7 Cir., 249 F.2d 626, 628 (1957), the existence of such a judgment has been held not to confer jurisdiction to inquire into the merits of the original controversy, Smith v. Indiana, 191 U.S. 138, 149, 24 S.Ct. 51, 52, 48 L.Ed. 125 (1903); Davis v. Preston, 280 U.S. 406, 408, 50 S.Ct. 171, 172, 74 L.Ed. 514 (1930). Accordingly, the motion to substitute the administratrix as a party should be denied, the appeal dismissed and the case remanded to the Supreme Court of Ohio for such proceedings as may be appropriate under state law.
| 89
|
371 U.S. 57
83 S.Ct. 108
9 L.Ed.2d 31
SOUTHERN CONSTRUCTION COMPANY, Inc., et al.,v.PICKARD, doing business as Pickard Engineering Co. SOUTHERN CONSTRUCTION COMPANY, Inc., et al., Petitioners, v. UNITED STATES FOR the USE OF Samuel J. PICKARD.
No. 46.
Argued Oct. 16, 1962.
Nov. 5, 1962.
William J. Harbison, Nashville, Tenn., for petitioners.
Edward Gallagher, Washington, D.C., for respondent.
PER CURIAM.
1
Southern Construction Company, one of the petitioners here, was the prime contractor on contracts with the United States for the rehabilitation of certain barracks at Fort Campbell, Tennessee, and Fort Benning, Georgia. There were three contracts covering the Georgia project and one covering the Tennessee project. Pursuant to the provisions of the Miller Act, 49 Stat. 793, as amended, 40 U.S.C. §§ 270a—270d, 40 U.S.C.A. §§ 270a—270d, Southern furnished performance and payment bonds, with Continental Casualty Company, co-petitioner here, as surety. The plumbing and heating subcontractor on both projects was the respondent Samuel J. Pickard, doing business as Pickard Engineering Company. Pickard's primary supplier on both projects was the Atlas Supply Company.
2
In December 1955, Pickard's men left the Tennessee job before it was fully completed, and shortly thereafter left the Georgia project. Atlas, Pickard's supplier, claimed that $34,520 was due it for materials furnished on the Tennessee job and $104,000 for materials furnished on the Georgia project. Following a conference in August 1956 between Southern officials and representatives of Atlas, Southern paid Atlas $35,000 in exchange for a complete release of all liability of Southern on Pickard's accounts with respect to both the Georgia and Tennessee projects.1
3
In December 1956, acting under the provisions of the Miller Act, Pickard brought suit, in the name of the United States, in the United States District Court for the Middle District of Georgia against Southern and Continental for recovery of amounts allegedly owing on both the Georgia and Tennessee jobs. In January 1957, Southern filed an answer and a counterclaim in which it alleged that Southern had paid out more than the contract price on both jobs and in which recovery of the excess was sought. The $35,000 payment to Atlas was at that time included in the counterclaim.
4
The Miller Act, however, requires that suits instituted under its provisions 'shall be brought * * * in the United States District Court for any district in which the contract was to be performed and executed and not elsewhere * * *.' 40 U.S.C. § 270b(b), 40 U.S.C.A. § 270b(b). Since this statute appeared to prohibit an action in the Georgia District Court on the Tennessee project, Pickard in April 1957 filed the present action against petitioners in the United States District Court for the Middle District of Tennessee relating to the Tennessee project only, and by amendment eliminated this part of his claim from the Georgia action.
5
The Georgia action proceeding to trial in 1959, and according to the findings of the District Court in the present case the $35,000 payment to Atlas was 'dropped' prior to trial from the counterclaim originally asserted in that action. The Georgia suit has not yet proceeded to final judgment, the Georgia District Court in September 1961 having granted Southern's motion for a new trial on its counterclaim.
6
In the Tennessee action here involved Southern included the $35,000 payment as part of its counterclaim for affirmative relief, and Pickard answered that the counterclaim was barred by 'res judicata.' Southern later waived any claim to affirmative relief in this action and sought only a credit of $34,520 against Pickard's contract claim on the Tennessee project. This figure was the precise amount that had been claimed by Atlas to be due it for materials supplied on this job.
7
The District Court, in deciding that Pickard was not entitled to any recovery, allowed this $34,520 item as a credit against Pickard's claim, but on this point the Court of Appeals for the Sixth Circuit reversed. 293 F.2d 493. It held that since there had been no allocation of the $35,000 payment as between the Georgia and Tennessee projects the item, under Rule 13(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., was a 'potential compulsory counterclaim' in either of the two suits;2 that when the responsive pleading in the Georgia suit was filed the counterclaim was not the subject of any other pending action and was therefore 'compulsory' in that suit; and, accordingly, that such counterclaim could not later be asserted in the present action. We granted certiorari to consider the applicability of Rule 13(a) in these unusual circumstances. 368 U.S. 975, 82 S.Ct. 478, 7 L.Ed.2d 437.
8
We accept for present purposes the ruling below that the $35,000 payment had not been allocated as between the Tennessee and Georgia projects and that it therefore could have been asserted in either action. Nevertheless, we do not believe that Rule 13(a) operates to prohibit its use in the later Tennessee action. The requirement that counterclaims arising out of the same transaction or occurrence as the opposing party's claim 'shall' be stated in the pleadings was designed to prevent multiplicity of actions and to achieve resolution in a single lawsuit of all disputes arising out of common matters. The Rule was particularly directed against one who failed to assert a counterclaim in one action and then instituted a second action in which that counterclaim became the basis of the complaint. See, e.g., United States v. Eastport S.S. Corp., 2 Cir., 255 F.2d 795, 801—802.
9
It is readily apparent that this policy has no application here. In this instance, the plaintiff-respondent, who originally sought to combine all his claims in a single suit, correctly concluded that he was required by statute to split those claims and to bring two separate actions in two different districts. The fragmentation of these claims, therefore, was compelled by federal law, and the primary defendant in both actions was thus for the first time confronted with the choice of which of the two pending suits should be resorted to for the assertion of a counterclaim common to both. Under these circumstances, we hold that Rule 13(a) did not compel this counterclaim to be made in whichever of the two suits the first responsive pleading was filed.3 Its assertion in the later suit, to which Southern, not without reason, considered it more appurtenant (pp. 58—59, supra, 83 S.Ct. p. 109), by no means involved the circuity of action that Rule 13(a) was aimed at preventing. Accordingly, the judgment of the Court of Appeals insofar as it related to this counterclaim is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
10
It is so ordered.
11
Judgment of the Court of Appeals reversed in part, and case remanded with directions.
1
Under the Miller Act, 40 U.S.C. § 270b, 40 U.S.C.A. § 270b, Southern as a prime contractor was secondarily liable to suppliers of the subcontractor.
2
Rule 13(a) provides:
'(a) Compulsory counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction, except that such a claim need not be so stated if at the time the action was commenced the claim was the subject of another pending action.'
3
We are informed that after certiorari was granted in the present case, Southern filed an amended counterclaim in the Georgia action which included the $35,000 item involved here. Further proceedings in the Georgia action, however, are awaiting out decision in this case. Of course once this counterclaim has been adjudicated in one of the actions it cannot be reasserted in the other.
| 89
|
371 U.S. 38
83 S.Ct. 97
9 L.Ed.2d 11
UNITED STATES, Appellant,v.LOEW'S, INCORPORATED, et al. LOEW'S, INCORPORATED, et al., Appellants, v. UNITED STATES. C & C SUPER CORP., Appellant, v. UNITED STATES.
Nos. 42—44.
Argued Oct. 16, 1962.
Decided Nov. 5, 1962.
Daniel M. Friedman, Washington, D.C., for appellant in No. 42 and for appellee in Nos. 43 and 44.
Louis Nizer, New York City, for appellees in No. 42 and for appellants in No. 43, Loew's Incorporated, Associated Artists Production, Inc. and United Artists Corporation.
Myles J. Lane, New York City, for appellee in No. 42 and appellant in No. 43, Screen Gems, Inc.
Mervin C. Pollak, New York City, for appellant in No. 44.
Justin M. Golenbock, New York City, for appellee in No. 42, National Telefilm Associates, Inc.
Mr. Justice GOLDBERG delivered the opinion of the Court.
1
These consolidated appeals present as a key question the validity under § 1 of the Sherman Act1 of block booking of copyrighted feature motion pictures for television exhibition. We hold that the tying agreements here are illegal and in violation of the Act.
2
The United States brought separate civil antitrust actions in the Southern District of New York in 1957 against six major distributors of pre-1948 copyrighted motion picture feature films for television exhibition, alleging that each defendant had engaged in block booking in violation of § 1 of the Sherman Act. The complaints asserted that the defendants had, in selling to television stations, conditioned the license or sale of one or more feature films upon the acceptance by the station of a package or block containing one or more unwanted or inferior films. No combination or conspiracy among the distributors was alleged; nor was any monopolization or attempt to monopolize under § 2 of the Sherman Act averred. The sole claim of illegality rested on the manner in which each defendant had marketed its product. The successful pressure applied to television station customers to accept inferior films along with desirable pictures was the gravamen of the complaint.
3
After a lengthy consolidated trial, the district judge filed exhaustive findings of fact, conclusions of law, and a carefully reasoned opinion, 189 F.Supp. 373, in which he found that the actions of the defendants constituted violations of § 1 of the Sherman Act. The conclusional finding of fact and law was that
4
'* * * the several defendants have each, from time to time and to the extent set forth in the specific findings of fact, licensed or offered to license one or more feature films to television stations on condition that the licensee also license one or more other such feature films, and have, from time to time and to the extent set forth in the specific findings of fact, refused, expressly or impliedly, to license feature films to television stations unless one or more other such feature films were accepted by the licensee.' 189 F.Supp., at 397—398.
5
The judge recognized that there was keen competition between the defendant distributors, and therefore rested his conclusion solely on the individual behavior of each in engaging in block booking. In reaching his decision he carefully considered the evidence relating to each of the 68 licensing agreements that the Government had contended involved block booking. He concluded that only 25 of the contracts were illegally entered into. Nine of these belonged to defendant C & C Super Corp., which had an admitted policy of insisting on block booking that it sought to justify on special grounds.
6
Of the others, defendant Loew's, Incorporated, had in two negotiations that resulted in licensing agreements declined to furnish stations KWTV of Oklahoma City and WBRE of Wilkes-Barre with individual film prices and had refused their requests for permission to select among the films in the groups. Loew's exacted from KWTV a contract for the entire Loew's library of 723 films, involving payments of $314,725.20. The WBRE agreement was for a block of 100 films, payments to total $15,000.
7
Defendant Screen Gems, Inc., was also found to have block booked two contracts, both with WTOP of Washington, D.C., one calling for a package of 26 films and payments of $20,800 and the other for 52 films and payments of $40,000. The judge accepted the testimony of station officials that they had requested the right to select films and that their requests were refused.
8
Associated Artists Productions, Inc., negotiated four contracts that were found to be block booked. Station WTOP was to pay $118,800 for the license of 99 pictures, which were divided into three groups of 33 films, based on differences in quality. To get 'Treasure of the Sierra Madre,' 'Casablanca,' 'Johnny Belinda,' 'Sergeant York,' and 'The Man Who Came to Dinner,' among others, WTOP also had to take such films as 'Nancy Drew Troubleshooter,' 'Tugboat Annie Sails Again,' 'Kid Nightingale,' 'Gorilla Man,' and 'Tear Gas Squad.' A similar contract for 100 pictures, involving a license fee of $140,000, was entered into by WMAR of Baltimore. Triangle Publications, owner and operator of five stations, was refused the right to select among Associated's packages, and ultimately purchased the entire library of 754 films for a price of $2,262,000 plus 10% of gross receipts. Station WJAR of Providence, which licensed a package of 58 features for a fee of $25,230, had asked first if certain films it considered undesirable could be dropped from the offered packages and was told that the packages could not be split.
9
Defendant National Telefilm Associates was found to have entered into five block booked contracts. Station WMAR wanted only 10 Selznick films, but was told that it could not have them unless it also bought 24 inferior films from the 'TNT' package and 12 unwanted 'Fabulous 40's.' It bought all of these, for a total of $62,240. Station WBRE, before buying the 'Fox 52' package in its entirety for $7,358.50, requested and was refused the right to eliminate undesirable features. Station WWLP of Springfield, Massachusetts, inquired about the possibility of splitting two of the packages, was told this was not possible, and then bought a total of 59 films in two packages for $8,850. A full package contract for National's 'Rocket 86' group of 86 films was entered into by KPIX of San Francisco, payments to total $232,200, after KPIX requested and was denied permission to eliminate undesirable films from the package. Station WJAR wanted to drop 10 or 12 British films from this defendant's 'Champagne 58' package, was told that none could be deleted, and then bought the block for $31,000.
10
The judge found that defendant United Artists Corporation had in three consummated negotiations conditioned the sale of films on the purchase of an entire package. The 'Top 39' were licensed by WAAM of Baltimore for $40,000 only after receipt of a refusal to sell 13 of the 39 films in the package. Station WHTN of Huntington, West Virginia, purchased 'Award 52' for $16,900 after United Artists refused to deal on any basis other than purchase of the entire 52 films. Thirty-nine films were purchased by WWLP for $5,850 after an initial inquiry about selection of titles was refused.
11
Since defendant C & C was found to have had an overall policy of block booking, the court did not analyze the particular circumstances of the nine negotiations which had resulted in the licensing of packages of films. C & C's policies resulted in at least one station having to take a package in which 'certain of the films were unplayable since they had a foreign language sound track.' 189 F.Supp., at 389.
12
The court entered separate final judgments against the defendants, wherein each was enjoined from
13
'(A) Conditioning or tying, or attempting to condition or tie, the purchase or license of the right to exhibit any feature film over any television station upon the purchase or license of any other film;
14
'(B) Conditioning the purchase or license of the right to exhibit any feature film over any television station upon the purchase or license for exhibition over any other television station of that feature film, or any other film;
15
'(C) Entering into any agreement to sell or license the right to exhibit any feature film over any television station in which the differential between the price or fee for such feature film when sold or licensed alone and the price or fee for the same film when sold or licensed with one or more other film (sic) has the effect of conditioning the sale or license of such film upon the sale or license of one or more other films.' All of the defendants except National Telefilm2 appeal from the decree. The appeals of defendants Loew's, Screen Gems, Associated Artists, and United Artists raise identical issues and are consolidated as No. 43. The appeal of defendant C & C raises additional issues, and is therefore separately numbered as No. 44. The Government, although it won on the merits below, asserts in a cross-appeal (No. 42) that the scope and specificity of the decree entered by the District Court were inadequate to prevent the continued attainment of illegal objectives. It seeks to have the decree broadened in a number of ways. All of the defendants below oppose these modifications. The cases are here on direct appeal from the District Court under § 2 of the Expediting Act, 32 Stat. 823, as amended, 15 U.S.C. § 29, 15 U.S.C.A. § 29. We noted probable jurisdiction, 368 U.S. 973, 82 S.Ct. 478, 7 L.Ed.2d 437, and consolidated the appeals. We shall consider No. 43 first, since appellants there raise the fundamental question whether their activities were in violation of the antitrust laws. We shall thereafter consider No. 44, the special arguments of appellant C & C, and finally No. 42, the Government's request for broadening the decree.
I.
16
This case raises the recurring question of whether specific tying arrangements violate § 1 of the Sherman Act.3 This Court has recognized that '(t)ying agreements serve hardly any purpose beyond the suppression of competition,' Standard Oil Co. of California v. United States, 337 U.S. 293, 305—306, 69 S.Ct. 1051, 1058, 93 L.Ed. 1371. They are an object of anti-trust concern for two reasons—they may force buyers into giving up the purchase of substitutes for the tied product, see Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 605, 73 S.Ct. 872, 878, 97 L.Ed. 1277, and they may destroy the free access of competing suppliers of the tied product to the consuming market, see International Salt Co. v. United States, 332 U.S. 392, 396, 68 S.Ct. 12, 15, 92 L.Ed. 20. A tie-in contract may have one or both of these undesirable effects when the seller, by virtue of his position in the market for the tying product, has economic leverage sufficient to induce his customers to take the tied product along with the tying item. The standard of illegality is that the seller must have 'sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product * * *.' Northern Pacific R. Co. v. United States, 356 U.S. 1, 6, 78 S.Ct. 514, 518, 2 L.Ed.2d 545. Market dominance—some power to control price and to exclude competition—is by no means the only test of whether the seller has the requisite economic power. Even absent a showing of market dominance, the crucial economic power may be inferred from the tying product's desirability to consumers or from uniqueness in its attributes.4
17
The requisite economic power is presumed when the tying product is patented or copyrighted, International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20; United States v. Paramount Pictures, Inc., 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260. This principle grew out of a long line of patent cases which had eventuated in the doctrine that a patentee who utilized tying arrangements would be denied all relief against infringements of his patent. Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 37 S.Ct. 416, 61 L.Ed. 871; Carbice Corp. v. American Patents Dev. Corp., 283 U.S. 27, 51 S.Ct. 334, 75 L.Ed. 819; Leitch Mfg. Co. v. Barber Co., 302 U.S. 458, 58 S.Ct. 288, 82 L.Ed. 371; Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 60 S.Ct. 618, 84 L.Ed. 852; Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 62 S.Ct. 402, 86 L.Ed. 363; Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376. These cases reflect a hostility to use of the statutorily granted patent monopoly to extend the patentee's economic control to unpatented products. The patentee is protected as to his invention, but may not use his patent rights to exact tribute for other articles.
18
Since one of the objectives of the patent laws is to reward uniqueness, the principle of these cases was carried over into antitrust law on the theory that the existence of a valid patent on the tying product, without more, establishes a distinctiveness sufficient to conclude that any tying arrangement involving the patented product would have anticompetitive consequences. E.g., International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20. In United States v. Paramount Pictures, Inc., 334 U.S. 131, 156—159, 68 S.Ct. 915, 928—930, 92 L.Ed. 1260, the principle of the patent cases was applied to copyrighted feature films which had been block booked into movie theaters. The Court reasoned that
19
'The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U.S. 123, 127, 52 S.Ct. 546, 547, 76 L.Ed. 1010, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress. 'The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.' It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius. But the reward does not serve its public purpose if it is not related to the quality of the copyright. Where a high quality film greatly desired is licensed only if an inferior one is taken, the latter borrows quality from the former and strengthens its monopoly by drawing on the other. The practice tends to equalize rather than differentiate the reward for the individual copyrights. Even where all the films included in the package are of equal quality, the requirement that all be taken if one is desired increases the market for some. Each stands not on its own footing but in whole or in part on the appeal which another film may have. As the District Court said, the result is to add to the monopoly of the copyright in violation of the principle of the patent cases involving tying clauses.' 334 U.S., at 158, 68 S.Ct., at 929.
20
Appellants attempt to distinguish the Paramount decision in its relation to the present facts: the block booked sale of copyrighted feature films to exhibitors in a new medium television. Not challenging the District Court's finding that they did engage in block booking, they contend that the uniqueness attributable to a copyrighted feature film, though relevant in the movie-theater context, is lost when the film is being sold for television use. Feature films, they point out, constitute less than 8% of television programming, and they assert that films are 'reasonably interchangeable' with other types of programming material and with other feature films as well. Thus they argue that their behavior is not to be judged by the principle of the patent cases, as applied to copyrighted materials in Paramount Pictures, but by the general principles which govern the validity of tying arrangements of nonpatented products, e.g., Northern Pacific R. Co. v. United States, 356 U.S. 1, 6, 11, 78 S.Ct. 514, 518, 521, 2 L.Ed.2d 545. They say that the Government's proof did not establish their 'sufficient economic power' in the sense contemplated for nonpatented products.5
21
Appellants cannot escape the applicability of Paramount Pictures. A copyrighted feature film does not lose its legal or economic uniqueness because it is shown on a television rather than a movie screen.
22
The district judge found that each copyrighted film block booked by appellants for television use 'was in itself a unique product'; that feature films 'varied in theme, in artistic performance, in stars, in audience appeal, etc.,' and were not fungible; and that since each defendant by reason of its copyright had a 'monopolistic' position as to each tying product, 'sufficient economic power' to impose an appreciable restraint on free competition in the tied product was present, as demanded by the Northern Pacific decision. 189 F.Supp., at 381.6 We agree. These findings of the district judge, supported by the record, confirm the presumption of uniqueness resulting from the existence of the copyright itself.
23
Moreover, there can be no question in this case of the adverse effects on free competition resulting from appellants' illegal block booking contracts. Television stations forced by appellants to take unwanted films were denied access to films marketed by other distributors who, in turn, were foreclosed from selling to the stations. Nor can there be any question as to the substantiality of the commerce involved. The 25 contracts found to have been illegally block booked involved payments to appellants ranging from $60,800 in the case of Screen Gems to over $2,500,000 in the case of Associated Artists. A substantial portion of the licensing fees represented the cost of the inferior films which the stations were required to accept. These anti-competitive consequences are an apt illustration of the reasons underlying out recognition that the mere presence of competing substitutes for the tying product, here taking the form of other programming material as well as other feature films, is insufficient to destroy the legal, and indeed the economic, distinctiveness of the copyrighted product. Standard Oil Co. of California v. United States, 337 U.S. 293, 307, 69 S.Ct. 1051, 1059, 93 L.Ed. 1371; Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 611 and n. 30, 73 S.Ct. 872, 881, 882, 97 L.Ed. 1277. By the same token, the distinctiveness of the copyrighted tied product is not inconsistent with the fact of competition, in the form of other programming material and other films, which is suppressed by the tying arrangements.
24
It is therefore clear that the tying arrangements here both by their 'inherent nature' and by their 'effect' injuriously restrained trade. United States v. American Tobacco Co., 221 U.S. 106, 179, 31 S.Ct. 632, 648, 55 L.Ed. 663. Accommodation between the statutorily dispensed monopoly in the combination of contents in the patented or copyrighted product and the statutory principles of free competition demands that extension of the patent or copyright monopoly by the use of tying agreements be strictly confined. There may be rare circumstances in which the doctrine we have enunciated under § 1 of the Sherman Act prohibiting tying arrangements involving patented or copyrighted tying products is inapplicable. However, we find it difficult to conceive of such a case, and the present case is clearly not one.
25
The principles underlying our Paramount Pictures decision have general application to tying arrangements involving copyrighted products, and govern here. Applicability of Paramount Pictures brings with it a meeting of the test of Northern Pacific, since Paramount Pictures is but a particularized application of the general doctrine as reaffirmed in Northern Pacific. Enforced block booking of films is a vice in both the motion picture and television industries, and that the sin is more serious (in dollar amount) in one than the other does not expiate the guilt for either. Appellants' block booked contracts are covered by the flat holding in Paramount Pictures, 334 U.S., at 159, 68 S.Ct., at 930, that 'a refusal to license one or more copyrights unless another copyright is accepted' is 'illegal.'
26
Appellants (other than C & C) make the additional argument that each of them was found to have entered into such a small number of illegal contracts as to make it improper to enter injunctive relief. Appellants urge that their overall sales policies were to allow selective purchasing of films, and that in light of this, the fact that a few contracts were found to be illegal does not justify the entering of injunctive relief. We disagree. Illegality having been properly found, appellants cannot now complain that its incidence was too scattered to warrant injunctive relief. The trial judge, exercising sound judgment, has concluded that injunctive relief is necessary to prevent further violations. We think that finding wholly warranted. Moreover, the record shows that Loew's only instituted its policy of making individual films available shortly after suit was brought, and there is evidence that United Artists was conscientious in publicizing its willingness to deal in individual films only after the commencement of suit was imminent. There is no reason to disturb the judge's legal conclusions and decree merely because he did not find more illegal agreements when, as here, the illegal behavior of each defendant had substantial anticompetitive effects.
II.
27
Appellant C & C in its separate appeal raises certain arguments which amount to an attempted business justification for its admitted block booking policy. C & C purchased the telecasting rights in some 742 films known as the 'RKO Library.' It did so with a bank loan for the total purchase price, and to get the bank loan it needed a guarantor, which it found in the International Latex Corporation. Latex, however, demanded and secured an agreement from C & C that films would not be sold without obtaining in return a commitment from television stations to show a minimum number of Latex spot advertisements in conjunction with the films. Thus, since stations could not feasibly telecast the minimum number of spots without buying a large number of films to spread them over, C & C by requiring the minimum number of advertisements effectively forced block booking on those stations which purchased its films. C & C contends that block booking was merely the by-product of two legitimate business motives—Latex' desire for a saturation advertising campaign, and C & C's wish to buy a large film library. However, the obvious answer to this contention is that the thrust of the antitrust laws cannot be avoided merely by claiming that the otherwise illegal conduct is compelled by contractual obligations. Were it otherwise, the antitrust laws could be nullified. Contractual obligations cannot thus supersede statutory imperatives. Hence, tying arrangements, once found to exist in a context of sufficient economic power, are illegal 'without elaborate inquiry as to * * * the business excuse for their use,' Northern Pacific R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545.
28
In Nos. 43 and 44, therefore, we agree with the merits of the District Court's decision. It correctly found that the conditioning of the sale of one or more copyrighted feature films to television stations upon the purchase of one or more other films is illegal. The antitrust laws do not permit a compounding of the statutorily conferred monopoly.
III.
29
The trial judge's ability to formulate a decree tailored to deal with the violations existent in each case is normally superior to that of any reviewing court, due to his familiarity with testimony and exhibits. Notwithstanding our belief that primary responsibility for the decree must rest with the trial judge if workable results are to obtain, it is our duty to examine the decree in light of the record to see that the relief it affords is adequate to prevent the recurrence of the illegality which brought on the given litigation. United States v. United States Gypsum Co., 340 U.S. 76, 89, 71 S.Ct. 160, 169, 95 L.Ed. 89.
30
The United States contends that the relief afforded by the final judgments7 is inadequate and that to be adequate it must also: (1) require the defendants to price the films individually and offer them on a picture-by-picture basis; (2) prohibit noncost-justified differentials in price between a film when sold individually and when sold as part of a package; (3) proscribe 'temporary' refusals by a distributor to deal on less than a block basis while he is negotiating with a competing television station for a package sale.
31
Some of the practices which the Government seeks to have enjoined with its requested modifications are acts which may be entirely proper when viewed alone. To ensure, however, that relief is effectual, otherwise permissible practices connected with the acts found to be illegal must sometimes be enjoined. Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 461, 60 S.Ct. 618, 627, 84 L.Ed. 852; United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 724, 64 S.Ct. 805, 814, 88 L.Ed. 1024; Hartford-Empire Co. v. United States, 323 U.S. 386, 409, 65 S.Ct. 373, 385, 89 L.Ed. 322; International Salt Co. v. United States, 332 U.S. 392, 401, 68 S.Ct. 12, 17, 18, 92 L.Ed. 20; United States v. United States Gypsum Co., 340 U.S. 76, 88—89, 71 S.Ct. 160, 169—170, 95 L.Ed. 89. When the Government has won the lawsuit, it is entitled to win the cause as well, International Salt Co. v. United States, supra, 332 U.S., at 401, 68 S.Ct., at 17, 18.
32
A. Initial Offer of Individual Films, Individually Priced.
33
Under the final judgments entered by the court, a distributor would be free to offer films in a package initially, without stating individual prices. If, however, he delayed at all in producing individual prices upon request, he would subject himself to a possible contempt sanction. The Government's first request would prevent this 'first bite' possibility, forcing the offer of the films on an individual basis at the outset (but, as we view it, not precluding a simultaneous package offer, United States v. Paramount Pictures, Inc., supra, 334 U.S., at 159, 68 S.Ct., at 930).
34
This is a necessary addition to the decrees, in view of the evidence appearing in the record. Television stations which asked for the individual prices of some of the better pictures 'couldn't get any sort of a firm kind of an answer,' according to one station official. He stated that they received a 'certain form of equivocation, like the price for the better pictures that we wanted was so high that it wouldn't be worth our while to discuss the matter, * * * the implication being that it wouldn't happen.' A Screen Gems intracompany memorandum about a Baton Rouge station's price request stated that 'I told him that I would be happy to talk to him about it, figuring we could start the old round robin that worked so well in Houston & San Antonio.' Without the proposed amendment to the decree, distributors might surreptitiously violate it by allowing or directing their salesmen to be reluctant to produce the individual price list on request. This subtler form of sales pressure, though not accompanied by any observable delay over time, might well result in some television stations buying the block rather than trying to talk the seller into negotiating on an individual basis. Requiring the production of the individual list on first approach will obviate this danger.
35
B. Prohibition of Noncost-justified Price Differentials.
36
The final judgments as entered only prohibit a price differential between a film offered individually and as part of a package which 'has the effect of conditioning the sale or license of such film upon the sale or license of one or more other films.' The Government contends that this provision appearing by itself is too vague and will lead to unnecessary litigation. Differentials unjustified by cost savings may already be prohibited under the decree as it now appears. Nevertheless, the addition of a specific provision to prevent such differentials will prevent uncertainty in the operation of the decree. To ensure that litigation over the scope and application of the decrees is not left until a contempt proceeding is brought, the second requested modification should be added. The Government, however, seeks to make distribution costs the only saving which can legitimately be the basis of a discount. We would not so limit the relevant cost justifications. To prevent definitional arguments, and to ensure that all proper bases of quantity discount may be used, the modification should be worded in terms of allowing all legitimate cost justifications.
37
C. Prohibition of 'Temporary' Refusals to Deal.
38
The Government's third request is, like the first, designed to prevent distributors from subjecting prospective purchasers to a 'run-around' on the purchase of individual films. No doubt temporary refusal to sell in broken lots to one customer while negotiating to sell the entire block to another is a proper business practice, viewed in vacuo, but we think that if permitted here it may tend to force some stations into buying pre-set packages to forestall a competitor's getting the entire group. In recognition of this the Government seeks a blanket prohibition against all temporary refusals to deal. We agree in the main, except that the modification proposed by the Government fails to give full recognition to that part of this Court's holding in Paramount Pictures which said,
39
'We do not suggest that films may not be sold in blocks or groups, when there is no requirement, express or implied, for the purchase of more than one film. All we hold to be illegal is a refusal to license one or more copyrights unless another copyright is accepted.' 334 U.S., at 159, 68 S.Ct., at 930.
40
We therefore grant the Government's request, but modify it only to the limited degree necessary to permit a seller briefly to defer licensing or selling to a customer pending the expeditious conclusion of bona fide negotiations already being conducted with a competing station on a proposal wherein the distributor has simultaneously offered to license or sell films either individually or in a package.
41
The modifications we have specified will bring about a greater precision in the operation of the decrees. We have concluded that they will properly protect the interest of the Government in guarding against violations and the interest of the defendants in seeking in good faith to comply.
42
The judgments are vacated and the causes are remanded to the District Court for further proceedings in conformity with this opinion.
43
Vacated and remanded.
44
Mr. Justice HARLAN, with whom Mr. Justice STEWART joins, concurring in part and dissenting in part.
45
I agree with and join in Parts I and II of the Court's opinion, relating to No. 43 and No. 44, respectively. As to Part III, relating to No. 42, I dissent. My disagreement goes not so much to the particular additional relief granted, but to the fact that the Court has deemed it appropriate to concern itself at all with such comparatively trivial remedial glosses upon the District Court's decree.
46
I think it distorts the proper relationship of this Court to the lower federal courts, whose assessment of a particular situation is bound to be more informed than ours, for us to exercise revisory power over the terms of antitrust relief, except in instances where things have manifestly gone awry. This is not such a case, as the meticulous handling of it by the District Court abundantly shows. In my view its decree should be left undisturbed.
1
'every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal * * *.' 26 Stat. 209 (1890), as amended, 15 U.S.C. § 1, 15 U.S.C.A. § 1.
2
National Telefilm has, however, filed a brief in oposition to the Government's requests for modifications in the decree, discussed below.
3
See International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20; United States v. Paramount Pictures, Inc., 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260; Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 73 S.Ct. 872, 97 L.Ed. 1277; Northern Pacific R. Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545.
4
Since the requisite economic power may be found on the basis of either uniqueness or consumer appeal, and since market dominance in the present context does not necessitate a demonstration of market power in the sense of § 2 of the Sherman Act, it should seldom be necessary in a tie-in sale case to embark upon a full-scale factual inquiry into the scope of the relevant market for the tying product and into the corollary problem of the seller's percentage share in that market. This is even more obviously true when the tying product is patented or copyrighted, in which case, as appears in greater detail below, sufficiency of economic power is presumed. Appellants' reliance on United States v. E. I. du Pont de Nemours & Co., 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264, is therefore misplaced.
5
Appellants' framing of their argument in terms of each of them not having dominance in the market for television exhibition of feature films misconceives the applicable legal standard. As noted, supra, p. 45, 83 S.Ct., p. 102, 'sufficient economic power' as contemplated by the Northern Pacific case is a term more inclusive in scope than 'market dominance.'
6
To use the trial court's apt example, forcing a television station which wants 'Gone With The Wind' to take 'Getting Gertie's Garter' as well as taking undue advantage of the fact that to television as well as motion picture viewers there is but one 'Gone With The Wind.'
7
The operative portion of the injunctions appears at p. 43, 83 S.Ct. at p. 101, supra.
| 78
|
371 U.S. 72
83 S.Ct. 178
9 L.Ed.2d 133
Ex parte Sherman D. GEORGE.
No. 375.
Decided Nov. 13, 1962.
PER CURIAM.
1
The petition for certiorari is granted. We vacate the judgment of the Supreme Court of Texas setting aside the original writ of habeas corpus issued by it on July 10, 1961, and remand the cause to that court for further proceedings not inconsistent with this opinion.
2
American Oil Company was involved in a labor dispute with the National Maritime Union, which represented unlicensed crew members aboard company vessels. The union peacefully picketed a refinery operated by a subsidiary of American that had a valid collective bargaining agreement with the Oil, Chemical and Atomic Workers International Union. Upon findings that the object of the National Maritime Union's picketing of the refinery was to secure the disregard, breach or violation of the collective bargaining agreement by the refinery workers and their union, in violation of Art. 5154d, § 4, Vernon's Tex.Rev.Civ.Stats., Ann., the subsidiary obtained a temporary injunction from the Tenth Judicial District Court of Galveston County against picketing at the refinery. The injunction in express terms bound the petitioner, an official of the National Maritime Union. Petitioner nevertheless picketed the refinery after publicly announcing his intention so to do, on the ground that he did not believe that the court had jurisdiction to issue the injunction. He was adjudged in contempt.
3
The only issue mooted on the habeas corpus proceeding was the jurisdiction of the District Court to issue the injunction. Under Texas law one may not be punished for contempt for violating a temporary injunction, as here, granted by a court having no jurisdiction of the subject matter. Ex parte Twedell, 158 Tex. 214, 309 S.W.2d 834; Ex parte Dilley, 160 Tex. 522, 334 S.W.2d 425. The District Court was without jurisdiction if petitioner's picketing was arguably prohibited or arguably protected by the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. 'In the absence of the Board's clear determination that an activity is neither protected nor prohibited or of compelling precedent applied to essentially undisputed facts, it is not for this Court to decide whether such activities are subject to state jurisdiction.' San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 246, 79 S.Ct. 773, 780, 3 L.Ed.2d 775. The Texas Supreme Court held that petitioner's conduct was neither arguably prohibited nor arguably protected by the Act. Tex., 358 S.W.2d 590. We disagree. Even assuming, without deciding, that the picketing would not fall within the prohibitions of § 8(b)(1)(A) or § 8(b)(4)(i)(B) of the National Labor Relations Act, as amended, we hold, in light of the District Court's finding that American wholly owns the subsidiary and 'directs and controls all of * * * (its) activities,' that petitioner's picketing was conduct at least arguably protected by § 7 of the Act.
4
Vacated and remanded.
| 910
|
371 U.S. 75
83 S.Ct. 173
9 L.Ed.2d 136
UNITED STATES, Appellant,v.Ralph L. SAMPSON et al.
No. 69.
Argued Oct. 18, 1962.
Decided Nov. 19, 1962.
Howard P. Willens, Washington, D.C., for appellant.
Randolph W. Thrower, Atlanta, Ga., for appellees.
Mr. Justice BLACK delivered the opinion of the Court.
1
The appellees were indicted in a United States District Court on charges that they had used the mails 'for the purpose of executing' a fraudulent scheme in violation of 18 U.S.C. § 1341, 18 U.S.C.A. § 1341,1 and that they had conspired to so use the mails.2 It is clear that the allegations, if proved, would show that a fraudulent scheme existed and that the mailings charged in fact occurred. The District Court dismissed 34 of the counts, however, on the ground that the facts alleged showed that the mails were not used 'for the purpose of executing' the alleged scheme, as required by the statute. The court also dismissed the conspiracy count without giving additional reasons. The case is properly here on direct appeal by the Government under 18 U.S.C. § 3731, 18 U.S.C.A. § 3731. The only question we must decide with reference to the 34 substantive counts is whether the allegations in the indictment were sufficient to permit a jury to find that the mails were used 'for the purpose of executing' the fraudulent scheme. Whether the indictment sufficiently charges that the mails were so used depends upon its allegations.
In brief summary, these allegations are:
2
The individual defendants were officers, directors, and employees of a large, nationwide corporation, also a defendant, with regional offices in various States. The defendants purported to be able to help businessmen obtain loans or sell out their businesses. Although lavish promises were freely given, the defendants did not intend to and in fact did not make any substantial efforts to perform these promised services. As a part of this scheme, the defendants secured salesmen who were trained to deceive those with whom they dealt by innuendos, half-truths, and false statements.3 These defendants, according to the allegations, were not mere small-time sporadic swindlers but rather they have deliberately planned and devised a well-integrated, long-range, and effective scheme for the use of propaganda, salesmen, and other techniques to soften up and then cheat their victims one by one. Under the plan, personal calls were made upon prospects who were urged by false and fraudulent representations to sign applications asking defendants to help them obtain loans or sell their businesses. The salesmen further urged prospects, many times successfully, to give a check for an 'advance fee,' all being assured that if their applications were not accepted at the regional office the 'advance fee' would be refunded. Payments of the fees were promptly converted by the salesmen into cashiers' checks on local banks and then forwarded with the applications to the corporate regional offices where all applications, as a part of the plan, were accepted if signed and accompanied by a check for the right amount. The fees were immediately deposited in the defendants' bank account. Although the money had already been obtained, the plan still called for a mailing of the accepted application together with a form letter to the victims 'for the purpose of lulling said victims by representing that their applications had been accepted and that the defendants would therefore perform for said victims the valuable services which the defendants had falsely and fraudulently represented that they would perform.'4 It was further a part of the scheme to compile rudimentary financial data and forward it to various lending agencies and to inform the victims of this fact in an attempt to convince them that they had not been defrauded and that the defendants were performing meaningful services on their behalves. Moreover, under the plan defendants, while refusing to refund the fee, pretended to investigate complaints from their victims and encouraged their salesmen to deny having made false representations, all the time seeking by false and fraudulent statements to make the victims believe that the defendants had faithfully performed and would continue to perform the promised services. In short, the indictment alleged that the scheme, as originally planned by the defendants and as actually carried out, included fraudulent activities both before and after the victims had actually given over their money to the defendants. Of course, none of these charges have been established by evidence, but at this stage of the proceedings the indictment must be tested by its sufficiency to charge an offense.
3
The use of the mails relied on in the 34 dismissed counts was the mailing by the defendants of their acceptances of the victims' applications for their services. As conceded by the Government, prior to each mailing of an acceptance to a victim the defendants had obtained all the money they expected to get from that victim. The district judge's reason for holding that these counts did not charge a federal offense was that, since the money had already been obtained by the defendants before the acceptances were mailed, these mailings could not have been 'for the purpose of executing' the scheme. For this holding the court relied chiefly on Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88 (1944), and Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960).
4
In Kann, the defendants defrauded their corporate employer in matters confined to their local region. As a part of their scheme, the defendants had fraudulently obtained checks payable to them which were cashed or deposited at a bank. The use of the mails charged as a violation of the federal statute was the mailing of the checks for collection by the banks which cashed them to the banks upon which they were drawn. Prior to that mailing, the Court found, the defendants had obtained the money they sought, and as far as they were concerned their plan had reached its fruition and come to a complete rest. The scheme, as the Court viewed it, had contemplated no more. The mailing was done by outsiders, the banks, which had no connection whatsoever with the fraud. The checks were mailed for the banks' own purposes and not in any way for the furthering of the fraudulent scheme. In the Court's view it was immaterial to the consummation of the defendants' scheme how or whether the banks which had cashed the checks sought to collect them.
5
In Parr, the second case upon which the District Court relied, the defendants had obtained gasoline and other products and services for themselves by the use of the credit card of a School District which had authorized the defendants to use the card for the District's purposes only. The mailings complained of in the Parr case were two invoices sent by the oil company to the District and the District's check mailed back in payment. Again the Court was able to find that the mailings by the outsiders were not an integral part of the scheme as planned and executed by the defendants and that, as a matter of fact, it was completely immaterial to them what the oil company did about collecting its bill.
6
We are unable to find anything in either the Kann or the Parr case which suggests that the Court was laying down an automatic rule that a deliberate, planned use of the mails after the victims' money had been obtained can never be 'for the purpose of executing' the defendants' scheme. Rather the Court found only that under the facts in those cases the schemes had been fully executed before the mails were used. And Court of Appeals decisions rendered both before and after Kann have followed the view that subsequent mailings can in some circumstances provide the basis for an indictment under the mail fraud statutes.5
7
Moreover, as pointed out above, the indictment in this case alleged that the defendants' scheme contemplated from the start the commission of fraudulent activities which were to be and actually were carried out both before and after the money was obtained from the victims. The indictment specifically alleged that the signed copies of the accepted applications and the covering letters were mailed by the defendants to the victims for the purpose of lulling them by assurances that the promised services would be performed. We cannot hold that such a deliberate and planned use of the United States mails by defendants engaged in a nationwide, fraudulent scheme in pursuance of a previously formulated plan could not, if established by evidence, be found by a jury under proper instructions to be 'for the purpose of executing' a scheme within the meaning of the mail fraud statute. For these reasons, we hold that it was error for the District Court to dismiss these 34 substantive counts.
8
At the time the trial court dismissed the substantive counts it also dismissed the conspiracy count without stating additional reasons. In this Court, however, it is contended that the conspiracy count duplicates the 43 substantive counts because each substantive count is in reality a conspiracy count. On this basis, it is argued that there is an unjustified pyramiding of conspiracy counts which could be used by the Government in such a way as to deny the defendants, in particular the salesmen, a fair trial. We cannot anticipate arguments that would be more appropriately addressed to the trial court should the conduct or the result of the trial deny any of the defendants their rights. Since the conspiracy count on its face, like the substantive counts on their faces, properly charges a separate offense against each of the defendants, it was also error to dismiss the conspiracy count.
9
Reversed.
10
Mr. Justice DOUGLAS, dissenting.
11
I think that today the Court materially qualifies Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277. There, in the face of the jury's verdict, we held that a check on a third party's funds, mailed to pay for property after the property had been fraudulently 'obtained,' could not be 'for the purpose of executing' a scheme to obtain the property. As the statute makes clear,1 there is only one foundation for prosecution under the statute and that is using the mails 'for the purpose of executing' the various schemes described in the Act. So far as is relevant here, those schemes are either to defraud or to obtain money by false or fraudulent representations.
12
It is possible that in this case indictments could be drawn which charge the use of mails to lull existing victims into a feeling of security so that a scheme to obtain money from other victims could be successfully consummated. The opinion does not so construe the indictment but concludes, as I read it, that the mere lulling of existing victims into a sense of security is enough.2 If that is enough, then in the Parr case it would seem that we should have sustained the conviction because the defendants there may well have wanted the third party to pay for the property that had been fraudulently obtained so that they would not be apprehended. In the Parr case, as here, there was 'a continuing course of conduct' (to borrow a phrase from the dissent, 363 U.S., at 402, 80 S.Ct. at 1189) not only to obtain money fraudulently but also to conceal the fraud so that future peculations might be possible. In Parr, future peculations from the same taxpayers were part of the scheme. Here there is no suggestion that those previously defrauded were to be defrauded a second time.3 The mails were used only to tranquilize those already defrauded. Or at least that is the only way I can read this indictment. It is therefore a much weaker case than Parr.
13
We should not struggle to uphold poorly drawn counts. To do so only encourages more federal prosecution in fields that are essentially local.
1
'§ 1341. Frauds and swindles.
'Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, * * * for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Post Office Department, * * * or knowingly causes to be delivered by mail according to the direction thereon, * * * any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.'
2
18 U.S.C. § 371, 18 U.S.C.A. § 371.
3
'It was a further part of the said scheme and artifice to defraud that the defendants would secure salesmen * * * who would be agreeable to the use of unethical sales talks and hire and use them as field representatives, and it was a further part of the scheme to teach such salesmen that prospective victims were at a complete disadvantage and would jump and act like puppets if the salesman handled the client right, and to teach them to try and impress upon the victims that said salesman was an expert; to teach salesmen to try and confuse victims and to lead them into believing that LSC was a lending company * * * and to teach said salesmen that LSC and the defendants did not care how such salesmen sold a contract to a victim and that it was perfectly all right for a salesman to use innuendos and half-truths * * *.' Record, pp. 4—5.
4
Record, p. 8. It was also charged that a further purpose of the mailing was to inform the victims that they could not obtain a refund of their fees, that the contract was not cancellable, and that the victim had no recourse for retrieving his money. Ibid.
5
See, e.g., United States v. Lowe, 115 F.2d 596 (C.A.7th Cir. 1940), cert. denied, 311 U.S. 717, 61 S.Ct. 441, 85 L.Ed. 466 (1941); United States v. Riedel, 126 F.2d 81 (C.A.7th Cir. 1942); Clark v. United States, 93 U.S.App.D.C. 61, 208 F.2d 840, cert. denied, 346 U.S. 865, 74 S.Ct. 105, 98 L.Ed. 376 (1953).
1
'Whoever, having devised * * * (a) scheme * * * to defraud, or for obtaining money * * * by means of false or fraudulent * * * representations, or promises, * * * for the purpose of executing such scheme * * * places in any post office * * * any matter * * * to be sent * * * by the Post Office Department * * * shall be (guilty of a crime) * * *.' (Italics added.) 18 U.S.C. § 1341.
2
The indictment, as I read it, charges on this phase only 'lulling said victims' into a sense of security.
3
The Solicitor General states in his brief:
'The government conceded that, after obtaining the advance fee, the defendants had no intention of earning the balance due on the service contracts. No further payments were expected to be got from the victim.'
| 01
|
371 U.S. 84
83 S.Ct. 157
9 L.Ed.2d 142
HEWITT-ROBINS, INCORPORATED, Petitioner,v.EASTERN FREIGHT-WAYS, INC.
No. 37.
Argued Oct. 11, 1962.
Decided Nov. 19, 1962.
Harry Teichner, Brooklyn, N.Y., for petitioner.
Wilfred R. Caron, Kingston, N.Y., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
This is an action by a shipper to recover from a motor carrier the difference in rate charges resulting from a practice of the latter of carrying unrouted intrastate shipments on its interstate routes at higher rates than those applicable to its available intrastiate routes. The District Court for the Southern District of New York stayed the action awaiting a finding by the Interstate Commerce Commission as to the reasonableness of the practice. The Commission found it unreasonable* under the Motor Carrier Act, 49 U.S.C. §§ 301—327, 49 U.S.C.A. §§ 301—327 and subsequently the District Court dismissed the complaint on the ground that the Act neither provided any reparation remedy nor preserved one at common law. 187 F.Supp. 722. The Court of Appeals, one judge dissenting, affirmed on the same grounds. 293 F.2d 205. Each court bottomed its decision upon T.I.M.E. Inc. v. United States, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952 (1959). Having some doubts as to the appositeness of that case and because of the importance of the question in the administration of the Act, we granted certiorari. 368 U.S. 951, 82 S.Ct. 393, 7 L.Ed.2d 385. We have concluded that T.I.M.E. Inc., supra, does not control the issue here and therefore reverse the judgments.
2
The petitioner alleges that between January 1, 1953, and February 1, 1955, it delivered numerous shipments of foam rubber pads to respondent, a common carrier by motor vehicle, for transportation from Buffalo, N.Y., to New York City. It claims that while the shipments were tendered without specifying the routes of shipment the respondent, contrary to its duty as a common carrier, shipped the pads over its interstate route at the higher tariff that it had on file with the Interstate Commerce Commission rather than over its intrastate route at the lower tariff that it had on file with the Public Service Commission of New York. Excess charges in the sum of $10,000 have been collected by respondent for which petitioner prays judgment.
3
The sole issue before us is whether the complaint states a cause of action upon which the District Court may grant relief. The gist of the action as alleged is that the shipper had the common-law right and the carrier owed it the duty to ship the pads over the cheapest available route, no adequate justification for not so doing being shown. Nevertheless, petitioner says, the carrier in derogation of this responsibility transported the pads at the higher rate and subjected the shipper to the $10,000 damage.
4
No attack is made upon either of the carrier's published tariffs—both are admittedly reasonable. The controversy hinges entirely upon whether the carrier violated its duty to the shipper in selecting the interstate route and the accompanying higher rate which subjected the shipper to the loss, i.e., the difference between the two lawful rates. We believe that the complaint stated a justiciable cause of action. The issue here is a far cry from that in T.I.M.E. Inc. v. United States, supra. There the question, as stated by the Court, was, 'Can a shipper of goods by a certificated motor carrier challenge in post-shipment litigation the reasonableness of the carrier's charges which were made in accordance with the tariff governing the shipment?' 359 U.S. 464, 465, 79 S.Ct. 904, 906, 3 L.Ed.2d 952. The Court determined that such an attack was foreclosed by the 'saving clause' of the Act, § 216(j), 49 U.S.C. § 316(j), 49 U.S.C.A. § 316(j), as being inconsistent with the statutory scheme of regulation. We emphasized the built-in protections given shippers against unreasonable rates, at pp. 478—480, at pp. 912 913, of 79 S.Ct., citing the 30-day-notice provision of the Act, § 217(c), as well as the power granted the Commission under § 216(g) to suspend rates for seven months. The Court concluded that those remedies amply protected the shipper and that the allowance of a judicial remedy would result in undercutting the stability of the rate structure which the statutory procedures sought to insure.
5
Here the challenge is directed not at the 'reasonableness' of the rates but at the carrier's misrouting practice. The question, therefore, is not one of rates but of routes. The determination of rail carriers' routing practices has long been within the primary jurisdiction of the Commission. Northern Pacific R. Co. v. Solum, 247 U.S. 477, 38 S.Ct. 550, 62 L.Ed. 1221 (1918). This jurisdiction is the more important in the case of motor carrier routing where alternative routes are greater in both number and variety. Furthermore, selection of the route is usually made on an ad hoc basis, precluding preshipment determination of its reasonableness. Unlike rate making there is no statutory procedure by which routing practices may be challenged in advance of shipment. Nor is the shipper by truck accorded even the right given the shipper by rail, under 49 U.S.C. § 15(8), 49 U.S.C.A. § 15(8), to select and request a particular route of the carrier. In view of these weighty statutory differences between rate making and routing practices the survival of a damage claim for misrouting appears entirely consistent with the Act. It, therefore, meets the proviso of the 'saving clause' as well as the teaching of T.I.M.E. Inc.
6
This conclusion is buttressed by the fact that the allowance here of a damage action nowise hampers the efficient administration of the Act, unlike the allowance of such an action as to unreasonable rates. A misrouting claim does not jeopardize the stability of tariffs or of certificated routes, the sole issue being whether the carrier routed the shipment over the cheapest available route, or made a showing of adequate justification for not doing so. Moreover, the allowance of misrouting actions would have a healthy deterrent effect upon the utilization of misrouting practices in the motor carrier field, which, in turn, would minimize 'cease and desist' proceedings before the Commission. Finally, and not to be overlooked, the absence of any judicial remedy places the shipper entirely at the mercy of the carrier, contrary to the overriding purpose of the Act. The allowance of such actions would, on the contrary, give neither an unfair advantage.
7
Those who contend that no judicial remedy is available place much weight on the fact that, as we have said, the Interstate Commerce Commission has primary jurisdiction in routing practices. We put no significance in whether one tags the claim as 'overcharges' as Commissioner Eastman apparently did in his testimony before the Senate, see T.I.M.E. Inc., supra, at 477—478, n. 18 of 359 U.S., at 911—912 of 79 S.Ct. or whether it is a proceeding involving the 'reasonableness' of routing practices. In either case the problem is one originally within the jurisdiction of the Commission. To say, however, that such primary jurisdiction compels the conclusion that the courts are without power to award damages in every instance where the Commission may not award reparations by no means follows. Indeed, the doctrine of primary jurisdiction is designed to apply 'where a claim is originally cognizable in the courts, and * * * enforcement of the claim requires the resolution of issues * * * placed within the special competence of an administrative body * * *.' United States v. Western Pacific R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956); see Davis, Administrative Law Treatise, § 19.01 (1958). The practice of the Commission in making such determination in the first instance, even though it has no power to award reparations in a given case, has long been exercised, Bell Potato Chip Co. v. Aberdeen Truck Line, 43 M.C.C. 337, 343 (1944), and is supported by a long line of cases. See Thompson v. Texas Mexican Ry. Co., 328 U.S. 134, 66 S.Ct. 937, 90 L.Ed. 1132 (1946), and cases there cited. Be this as it may, the survival of a judicial remedy under the saving clause of § 216(j) cannot be determined on the presence or absence in the Commission of primary jurisdiction to decide the basic question on which relief depends. Survival depends on the effect of the exercise of the remedy upon the statutory scheme of regulation. According to § 216(j), if the remedy is inconsistent with that scheme it does not survive. In T.I.M.E. Inc., we found inconsistencies and hence no judicial remedy survived. Here, as we have indicated, rather than running interference against the Act the exercise of the judicial remedy supports its overall purposes and is nowise inconsistent with the congressional scheme embodied within its four corners. The remedy, therefore, survives and the judgment is reversed.
8
Reversed.
9
Mr. Justice HARLAN, whom Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.
10
With deference, I consider that the T.I.M.E. case, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952, plainly controls this one. That it does control is not and could hardly be gainsaid to the extent that the complaint purports to alleges a statutory cause of action, that is, one based on the terms of the Motor Carrier Act itself. T.I.M.E., at 468—472 of 359 U.S., at 907—909 of 79 S.Ct. However, construing the complaint as alleging also a common-law cause of action, the Court holds that such an action is 'not inconsistent' with the Motor Carrier Act and is therefore preserved by § 216(j) of the statute.
11
The Court's decision rests primarily on the significance it accords to the existence of certain administrative procedures available to shippers to challenge rates in advance of their application, see §§ 216(g) and 217(c) of the Act, and the lack of such protective remedies in the case of routing practices. In addition, three further considerations are asserted to support its conclusion: (1) a misrouting claim does not jeopardize the stability of tariffs or of certificated routes, whereas to permit actions attacking the reasonableness of rates would hamper the efficient administration of the Act; (2) the allowance of misrouting actions will deter misrouting practices and decrease the number of 'cease and desist' proceedings before the I.C.C.; (3) the absence of any judicial remedy would put the shipper entirely at the mercy of the carrier, contrary to the purpose of the Motor Carrier Act. This reasoning, I submit, entirely misconceives the basis of the T.I.M.E. decision.
12
The result reached in T.I.M.E. basically rested on two interdependent considerations: (1) the courts may not adjudicate a matter over which the Commission has been given primary jurisdiction, 359 U.S., at 473—474, 79 S.Ct. at 909—910; (2) since the Commission must decide whether a rate is reasonable and Congress has denied it the authority to award reparations for past unreasonable charges, to allow a judicial remedy for recovery of past rate charges would 'permit the I.C.C. to accomplish indirectly what Congress has not chosen to give it the authority to accomplish directly,' Id., at 475, 79 S.Ct. at 910.
13
Both of these factors are present here. There can be no doubt that under § 216(b) and (e) of the Interstate Commerce Act the Commission has primary jurisdiction over the complained of misrouting practices,1 as indeed the Commission's action taken with respect to these very practices, Hewitt-Robins, Inc., v. Eastern Freight-Ways, Inc., 302 I.C.C. 173, and the Court's opinion in this case show. Nor is it suggested that the Commission possesses any reparations authority with respect to such misrouting. The conjunction of these factors thus brings T.I.M.E., decided only four Terms ago, into fully play.
14
1. It is true that in this instance the Act does not contain certain protective provisions as in the case of rate making. This cannot, however, serve to distinguish T.I.M.E., whose determination of the congressional purpose underlying the Motor Carrier Act was based on considerations that stand quite independently of the impact of particular provisions of the statute. It should also be noted that the absence of such provisions does not mean that carriers may follow misrouting practices with impunity. Section 212(a) of the Act provides that the Commission may, on its own initiative or on complaint, suspend or revoke certificates, permits, or licenses for willful failure to comply with any provision of the Act or any order or regulation of the Commission. Under § 216(e) of the Commission may order the termination of an unjust practice and prescribe the lawful practice to be followed. Section 222(a) imposes fines for violations of the Act, and § 222(b) confers jurisdiction on the District Courts to enjoin violations of the Act when application is made by the Commission.
15
2. If the issue as to the reasonableness of a routing practice is referred to the Commission, a procedure the Court recognizes as essential, allowance of a judicial remedy for misrouting will not jeopardize the stability of tariffs or of certificated routes. But the suggestion that such a danger was presented by a court action challenging unreasonable rates and that this contributed to the decision in T.I.M.E. is manifestly untenable. It was conceded there, as of course it had to be under prior decisions of this Court,2 that the primary jurisdiction doctrine compelled referral to the Commission of all issues as to the reasonableness of the rates. Since even if a judicial remedy were allowed the Commission would have been the tribunal deciding the basic question, the course of decision would have been uniform and there would not have been, any more than here, interference with the Commission's functioning in the area of its special competence or any threat to the stability of the rate structure. Moreover, the possibility that rate actions might constitute a threat to the rate structure through stimulating excessive litigation could hardly have been regarded as a significant factor in T.I.M.E., for it was there observed that only a handful of actions to recover for unreasonable charges had been brought in the previous 24 years. 359 U.S., at 479, 79 S.Ct. at 913. And if the Court now believes that to have been a relevant consideration in T.I.M.E., it should certainly be of greater weight with respect to misrouting claims, which are likely to arise more frequently because, as the Court points out, 'selection of the route is usually made on an ad hoc basis, precluding preshipment determination of its reasonableness.'3
16
3. Finally, as to the suggestions that actions such as this should be allowed because of their incidental deterrent effect on misrouting practices and in the interest of justice to shippers, it need only be said that these are matters for the Congress.4 Our duty is to apply the statute as we find it.
17
I would affirm.
*
302 I.C.C. 173. Respondent brought an action against the United States and the Commission in the District Court for the District of New Jersey, seeking to set aside the report and the cease-and-desist order entered by the Commission. After the complaint was filed the Commission amended its disposition by striking out the cease-and-desist order, leaving only its declaratory findings as to past practices. The three-judge court, relying upon our decision in United States v. Interstate Commerce Commission, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451 (1949), held that as a three-judge court it had no authority to adjudicate the controversy since no order was under attack. D.C., 170 F.Supp. 848. Decision in the action is now held in abeyance by a single judge pending disposition of this litigation. Thus the litigation has been bifurcated into two District Courts, whose further proceedings may yet be separately appealable. This might have been avoided had the District Court for the Southern District of New York followed this Court's admonition that 'the courts, while retaining the final authority to expound the statute, should avail themselves of the aid implicit in the agency's superiority in gathering the relevant facts and in marshaling them into a meaningful pattern,' Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481, 498, 78 S.Ct. 851, 861, 2 L.Ed.2d 926 (1958), rather than relying upon the shipper to file an adversary proceeding with the Commission.
1
Section 216(b) of the Interstate Commerce Act, 49 U.S.C. § 316(b), 49 U.S.C.A. § 316(b), provides in pertinent part: 'It shall be the duty of every common carrier of property by motor vehicle * * * to * * * observe * * * reasonable * * * practices * * * relating to or connected with the transportation of property in interstate * * * commerce.' Section 216(e) provides that whenever 'the Commission shall be of the opinion that any * * * practice * * * is or will be unjust or unreasonable * * * it shall determine * * * the lawful * * * practice.'
2
See, e.g., Texas & Pacific R. Co. v. American Tie & Timber Co., 234 U.S. 138, 34 S.Ct. 885, 58 L.Ed. 1255; Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553.
3
If the Court's reference to Commissioner Eastman's statement quoted in T.I.M.E., at 477—478, n. 18, at 912 of 79 S.Ct., is intended to imply that the present action may be characterized as one for rate 'overcharges' and thus is permissible, it should be noted that the 'overcharges' to which the Commissioner referred were, as his statement makes clear, charges 'above published tariff rates,' Id., at 478, 79 S.Ct. at 912, not those resulting, as alleged here, from the application of a wrong tariff. It is only the former that the Commissioner thought could be recovered 'in court as the law now stands.' Id., at 478, 79 S.Ct. at 912.
4
So far, Congress has refused to act. See H.R. 8031, 86th Cong., 1st Sess. (1959); 359 U.S., at 471—472 and notes 10, 11, 79 S.Ct., at 908—909.
| 78
|
371 U.S. 94
83 S.Ct. 162
9 L.Ed.2d 150
LOS ANGELES MEAT AND PROVISION DRIVERS UNION, LOCAL 626 et al., Appellants,v.UNITED STATES.
No. 38.
Argued Oct. 10, 1962.
Decided Nov. 19, 1962.
Charles K. Hackler, Los Angeles, Cal., for appellants.
Robert B. Hummel, Cleveland, Ohio, for appellee.
Mr. Justice STEWART delivered the opinion of the Court.
1
The appellants are a Los Angeles labor union, one of its business agents, and four self-employed independent contractors, so-called 'grease peddlers,' who were members of the union. They appeal from a judgment entered against them by a Federal District Court in a civil action brought by the United States to terminate violations of § 1 of the Sherman Act.1 The judgment was entered upon findings based upon a detailed stipulation of facts in which the appellants admitted all the allegations of the complaint and agreed to the ultimate conclusion that they had unlawfully combined and conspired in unreasonable restraint of foreign trade and commerce in yellow grease. In the stipulation the appellants also agreed to the issuance of a broad injunction against them. The District Court's decree enjoined in specific detail the practices found to be unlawful, and in addition ordered the union to terminate the union membership of all self-employed grease peddlers. 196 F.Supp. 12. The appellants attack the judgment here upon the single ground that the District Court was in error in ordering termination of the union membership of these independent businessmen.2 Consideration of this claim requires a somewhat detailed review of the nature of the illegal conspiracy in which the appellants in this case were concededly engaged.
2
During the period between 1954 and 1959 there were in Los Angeles County eight firms engaged as processors in the production of yellow grease, an inedible grease produced by removing moisture and solid impurities from so-called restaurant grease—waste grease resulting from the preparation of food in restaurants, hotels and institutions. A substantial part of the yellow grease so produced was sold to overseas purchasers and to purchasers in California for prompt shipment overseas.
3
The processors procured restaurant grease in two separate ways. They made direct purchases, usually from large restaurants, hotels and other institutions, and in these transactions the processors picked up the restaurant grease from the sellers through employees who were members of the union. Restaurant grease from other sources was usually purchased by the processors from grease peddlers, independent entrepreneurs whose earnings as middlemen consisted of the difference between the price at which they bought the restaurant grease from various sources and the price at which they sold it to the processors, less the cost of operating and maintaining their trucks. There were some 35 to 45 grease peddlers in the Los Angeles are.
4
In 1954 most of the grease peddlers became members of the appellant union, at the instigation of the appellant business agent, for the purpose of increasing the margin between the prices they paid for grease and the prices at which they sold it to the processors. To accomplish this purpose, fixed purchase and sale prices were agreed upon and enforced by union agents through the exercise or threatened exercise of union economic power in the form of strikes and boycotts against processors who indicated any inclination to deal with grease peddlers who were not union members. The union's business agent allocated accounts and territories for both purchases and sales among the various grease peddlers, who agreed to refrain from buying from or soliciting the customers of other peddlers, and violations of this agreement could result in a grease peddler's suspension from the union, in which event he was, of course, prohibited from carrying on his business.
5
From 1954 to 1959 this basic plan of price fixing and allocation of business was effectively carried out by elimination of the few peddlers who had not joined the union, and by coercion upon the processors through threats of 'union trouble' if they did not comply.
6
Within the union the grease peddlers were treated as a separate group, distinct from the some 2,400 employee members. The meetings of the grease peddlers were always held apart from regular union meetings, and from 1955 on, the grease peddlers were members of a special 'subdivision' of the union—Local 626—B. The affairs of this separate subdivision were administered not by regular union officers, but by the appellant business agent who had originated the scheme, together with a committee of grease peddlers to assist in 'policing, enforcing and carrying out the program to suppress and eliminate competition.'
7
There was no showing of any actual or potential wage or job competition, or of any other economic interrelationship, between the grease peddlers and the other members of the union. It was stipulated that no processors had ever substituted peddlers for employee-drivers in acquiring restaurant grease, or had ever threatened to do so. The stipulation made clear that the peddlers and the processors had essentially different sources of supply and different classes of customers. Based on these stipulated facts, the District Court affirmatively found that 'there is no competition between (the employee and peddler) groups because each is engaged in a different line of work * * *.'
8
Pointing out that 'the stipulated facts clearly show that before the grease peddlers joined the defendant Union, there was no suppression of competition among them, and that only the support of the Union and the powerful weapons at its command enabled the peddlers and the Union together to destroy free competition in the purchase and sale of waste grease,' the District Court concluded that 'a decree terminating the membership of the grease peddlers in defendant Union appears to be the most effective, if not the only, means of preventing a recurrence of defendants' unlawful activities.' The court further concluded that nothing in the Clayton Act or the Norris-LaGuardia Act prevented the issuance of a decree divesting the grease peddlers of union membership in the circumstances of this case. We agree with these basic conclusions.
9
It is beyond question that a court of equity has power in appropriate circumstances to order the dissolution of an association of businessmen, when the association and its members have conspired among themselves or with others to violate the antitrust laws. Hartford-Empire Co. v. United States, 323 U.S. 386, 428, 65 S.Ct. 373, 393, 89 L.Ed. 322. And the circumstances stipulated and found in the present case provided ample support, we think, for a decree of dissolution, as a matter of the discreet exercise of equitable power.
10
It is also beyond question that nothing in the anti-injunction provisions of the Norris-LaGuardia Act,3 nor in the labor exemption provisions of the Clayton Act,4 insulates a combination in illegal restraint of trade between businessmen and a labor union from the sanctions of the antitrust laws. Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939. Indeed, the appellants have conceded the propriety of the order in the present case which broadly enjoins the illegal practices in which they were engaged.
11
The narrow question which emerges in this case, therefore, is whether businessmen who combine in an association which would otherwise be properly subject to dissolution under the antitrust laws can immunize themselves from that sanction by the simple expedient of calling themselves 'Local 626—B' of a labor union.5 We think there is nothing in the Norris-LaGuardia Act nor in the Clayton Act, nor in the federal policy which these statutes reflect, to prevent a court from dissolving the ties which bound them to the appellant union, in the circumstances of the present case.
12
The provisions of the Norris-LaGuardia Act place severe limitations upon the issuance of an injunction by a federal court in 'any case involving or growing out of any labor dispute,' and the statute specifically forbids a District Court in such a case to prohibit anyone from '(b)ecoming or remaining a member of any labor organization.' But, as the District Court correctly found, the present case was not one 'involving or growing out of any labor dispute,' but one involving an illegal combination between businessmen and a union to restrain bound these businessmen together, and commerce. In such a case, as Allen Bradley Co. clearly held, neither the Norris-LaGuardia Act nor the labor exemption provisions of the Clayton Act are applicable.
13
This Court's decision in Columbia River Packers Assn. v. Hinton, 315 U.S. 143, 62 S.Ct. 530, 86 L.Ed. 750, is very much in point. That was a private antitrust suit brought by a processor of fish to enjoin an allegedly illegal combination of fishermen, who had joined together in the Pacific Coast Fisherman's Union to regulate the terms under which fish would be sold. The organization was 'affiliated with the C.I.O.' 315 U.S. at 144, 62 S.Ct. 520. The defendants claimed that an injunction against them would violate the Norris-LaGuardia Act. The Court held that the controversy was not a 'labor dispute' within the meaning of the Norris-LaGuardia Act, pointing out that that statute was 'not intended to have application to disputes over the sale of commodities.' 315 U.S., at 145, 62 S.Ct., at 521, 522. Here, as in Columbia River Assn., the grease peddlers were sellers of commodities, who became 'members' of the union only for the purpose of bringing upon power to bear in the successful enforcement of the illegal combination in restraint of the traffic in yellow grease.6 The District Court was not in error in ordering the complete termination of that illegal combination.
14
What has been said is not remotely to suggest that a labor organization might not often have a legitimate interest in soliciting self-employed entrepreneurs as members. Cf. Milk Wagon Drivers' Union v. Lake Valley Farm Products, 311 U.S. 91, 61 S.Ct. 122, 85 L.Ed. 63; Bakery and Pastery Drivers and Helpers Local 802 of International Brotherhood of Teamsters v. Wohl, 315 U.S. 769, 62 S.Ct. 818, 86 L.Ed. 1178; Local 24 of Intern., etc. v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312. And both the Norris-LaGuardia Act and the Clayton Act ensure that the antitrust laws cannot be used as a vehicle to stifle legitimate labor union activities. But here the court found upon stipulated facts that there was no job or wage competition or economic interrelationship of any kind between the grease peddlers and other members of the appellant union. If that situation should change in the future, the District Court will have ample power to amend its decree.7
15
Affirmed.
16
Mr. Justice GOLDBERG, with whom Mr. Justice BRENNAN joins, concurring.
17
I concur in today's opinion and judgment of the Court because the absence here of any countervailing union interest in retaining the grease peddlers as members coupled with the egregious nature of the conduct involved supports the District Court's exercise of discretion in imposing the contested sanction as the 'most effective * * * means of preventing a recurrence of defendants' unlawful activities.' Page 98 of 371 U.S., page 165 of 83 S.Ct., supra. As I read the stipulated record, the peddlers did not act and were not viewed by the union as participants in normal union activities designed to better their economic condition, but instead were from the very beginning used by union officials to effect a concededly illegal scheme to control the distribution and processing of grease.
18
This does not mean, and I do not regard the opinion of the Court as saying, that members may be expelled from a union when the pursuit of genuine labor objectives has collaterally resulted in transgressions of the antitrust laws.
19
The relief given by the District Court is not inconsistent with these expressions. To support its order, however, that the union must terminate the membership of the grease peddlers, the court below reasoned that the expulsion was appropriate and justified because, in the absence of job or wage competition between the peddlers and other union members, the peddlers were not proper subjects of unionization. In reaching this conclusion, the court below too narrowly circumscribed the permissible area of legitimate labor union activity. To believe that labor union interests may not properly extend beyond mere direct job and wage competition is to ignore not only economic and social realities so obvious as not to need mention, but also the graphic lessons of American labor union history.
20
Today's opinion of the Court thus properly notes that a labor organization may 'often have a legitimate interest in soliciting self-employed entrepreneurs as members' and recognizes that permissible union interest and action extends beyond joy and wage competition to other 'economic interrelationship(s).' Page 103 of 371 U.S., page 167 of 83 S.Ct., supra. In my view, there is therefore implicit in this Court's opinion a rejection of the District Court's overly strict view that job or wage competition is the sole measure of the propriety of union organizational efforts.
21
Notwithstanding what I take to be its disapproval of the views of the district judge, the Court correctly sustains the judgment expelling the peddlers from membership in the union, not because there is absent the job or wage competition erroneously considered crucial by the District Court, but because there does not appear in this record any other legitimate labor union interest presently being served by organization of these peddlers.
22
The Court is not here required to pass upon, and does not pass upon, the existence of the antitrust violation, or whether, as an original matter, the grease peddlers might properly associate among themselves or affiliate with a sympathetic and genuinely interested union to improve their economic condition. Resolution of such issues would require careful and details consideration of federal labor policy, the scope of the antitrust exemption afforded labor organizations by §§ 6 and 20 of the Clayton Act and the Norris-LaGuardia Act, as interpreted by United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788, and, in addition, the applicability here of the doctrines enunciated by this Court in cases such as Columbia River Packers Association, Inc., v. Hinton, 315 U.S. 143, 62 S.Ct. 520, 86 L.Ed. 750, and Allen Bradley Co. v. Local No. 3, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939. In the present case, however, appellants stipulated in the District Court that they have violated the Sherman Act and engaged in a pattern of conduct calling for remedial injunctive relief; they offered no justification for their admittedly illegal conduct. These concessions necessarily forfeit any antitrust exemption which might otherwise have been claimed to attach. Consequently, the only question remaining is whether, having thus negatived by their stipulations the existence of any exonerating legitimate union interest, appellants may now complain that the district judge abused his discretion in fashioning a remedy which included, in addition to the enjoining of future similarly illegal conduct, expulsion of the peddlers from the union. Although, as I have indicated, I do not agree with all of his views, I believe that the district judge did not exceed permissible bounds in framing the decree.
23
The particular nature of the challenged conduct giving rise to the ultimate illegality (whether adjudicated after contest or stipulated) is, of course, immediately and directly relevant to the nature of the relief to be decreed. Relief should be effective to preclude future violations and, at the same time, should not unduly penalize the parties. Since the conduct here goes beyond that recorded in the opinion of the Court, a brief recital of additional facts is appropriate.
24
The stipulated antitrust violation does not depend upon the fact of combination between the grease peddlers and the union for the purpose of bettering the economic condition of the former through limited use of collective bargaining power—an affiliation which standing alone and as an original matter might have been proper. Though not joined as defendants below, at least some of the processors purchasing grease from the peddlers were conceded to have been co-conspirators. The union business agent openly allocated sales among the processors and certain processors were completely cut off from sources of supply. On at least one occasion, processors were required to submit information concerning the volume of their grease purchases and the data supplied was used by the union as a basis for ordering an equalizing shift of business to a processor owned by a union member. Only a month earlier, the union business agent had arranged for a competitor to 'help out' this same favored processor by selling for it grease which it was having trouble selling. The accommodating processor undertook the sale simply because it feared 'trouble' with the union and its agent if it refused.
25
By virtue of the union's activities, the peddlers' sales of grease were ultimately wholly diverted from the six processors originally dealing with the peddlers to two processors, one of which was owned by a union member and in the other of which a union member was a partner. In the course of accomplishing this shift of business, at least one noncooperative processor was forced out of business.1
26
Such facts—all of which were stipulated—demonstrate a pattern of allocation of sales among processors and other improper practices designed to benefit certain favored processors in which union members had a direct financial interest.
27
Moreover, as indicated in the opinion of the Court, appellants stipulated that the peddlers themselves are 'independent businessmen' and not 'employees' of the processors. We cannot overlook the force of these concessions. This case is unlike National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170, in which nonemployee status was not merely unconceded, but the contrary was argued and shown. Here, the single paragraph in the stipulation of facts describing the nature of the peddlers' activities does not overcome the ultimate stipulation that they were 'businessmen' and not 'employees.' Certainly we should not, merely by mechanically affixing naked labels imported from other contexts, decide cases on abstractions; but we cannot ignore the impact of unlimited, self-made categorizations applied by agreement in the very lawsuit before us.2
28
The import of the entire stipulated factual record is that the union neither had nor pursued any legitimate present interest in organizing the grease peddlers. Were it otherwise, that portion of the decree compelling expulsion of the peddlers from the union, in my view, could not stand. The sanction here invoked is an extreme one, and, unless confined to use but rarely and then only in the most compelling of circumstances, may become a device for unfairly and improperly fractionalizing or decimating unions.
29
On the circumstances presented to the Court, the judgment below is properly affirmed. The situation may change, however, and I understand the opinion of the Court to say that if a legitimate union interest in organizing the peddlers does hereafter arise, the District Court has the power, and indeed the duty, to modify the decree on application of the appellants. For these reasons, I join in the opinion of the Court.
30
Mr. Justice DOUGLAS, dissenting.
31
If we took here the approach we took in National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170, we would reverse this judgment. The question there was whether 'newsboys,' (who were indeed mature men, id., 116, 64 S.Ct. 851) whose compensation consisted of the difference between the price at which they bought their papers from the publisher and the price at which they sold them, were 'employees' for purposes of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. Though by common-law standards they were 'independent contractors,' we held that they were 'employees' under the Federal Act. We noted that numerous types of 'independent contractors' had formed or joined unions for collective bargaining—musicians, actors, writers, artists, architects, engineers, and insurance agents. Id., 127, n. 26, 64 S.Ct. 851. We pointed out that there were marginal groups who, though entrepreneurial in form, lacked the bargaining power necessary to obtain decent compensation, decent hours, and decent working conditions. Id., 126—128, 64 S.Ct. 851. We emphasized that 'the economic facts of the relation' (id., 128, 64 S.Ct. 859) may make it 'more nearly one of employment than of independent business enterprise with respect to the ends sought to be accomplished by the legislation.' Ibid.
32
We know from our own cases (which are much closer on their facts to the present controversy than is Columbia River Packers Assn., Inc. v. Hinton, 315 U.S. 143, 62 S.Ct. 520, 86 L.Ed. 750) that the owner-driver-peddler system in the transportation and service trades has led to wage and job competition and to strife of one kind or another. Senn v. Tile Layers Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229, sustained picketing of a tile contractor who did much of the manual labor himself but also hired a few non-union helpers. In Bakery and Pastry Drivers, etc. Local v. Wohl, 315 U.S. 769, 62 S.Ct. 818, 86 L.Ed. 1178, a conflict arose between a union and small peddlers of baked goods who had increased ranks as a result of social security and unemployment compensation laws. Id., 770, 62 S.Ct. 818. We sustained under the First Amendment the union's picketing of the peddlers. See also Local 24 of Intern., etc. v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312.
33
Milk Wagon Drivers' Union, etc. v. Lake Valley Co., 311 U.S. 91, 61 S.Ct. 122, 85 L.Ed. 63, is even more in point for it presented, as does the present case, a question under the Norris-LaGuardia Act. Small milk peddlers who bought from wholesalers and sold to retailers grew so fast that union dairy employees lost their jobs and retailers started cutting prices. The result was a weakening of the union position. Picketing started and an injunction against it issued. We held that there was a 'labor dispute' within the meaning of the Norris-LaGuardia Act and therefore that the federal courts had no power to issue an injunction. Cf. United States v. American Federation of Musicians, 318 U.S. 741, 63 S.Ct. 665, 87 L.Ed. 1120.
34
It was stipulated in the present case that 'Grease peddlers are independent businessmen who are engaged in the business of buying, transporting, and selling restaurant grease for their own account. They are not employees of the grease processors.'
35
This is the beginning not the end of the problem. And it is no answer to say, as did the District Court, that union members and these grease peddlers do not compete. That is, indeed, denied by the record which shows that union members drive trucks for grease producers and pick up and transport grease.
36
The record in American Trucking Assns. v. United States, 344 U.S. 298, 304—306, 73 S.Ct. 307, 312, 97 L.Ed. 337, makes clear that marginal owner-drivers can demoralize large segments of the transportation industry. Moreover, the stark fact is that here, as in the 'newsboys' case, the union's effort was to improve the economic status of the grease peddlers. This is made clear by the stipulated facts:
37
'These self-employed peddlers have no established places of business; no employees, except an occasional loader; no capital investment except a small equity in a truck; no skill or special qualifications except the ability to load, unload and drive a truck. * * * Their earnings represent the difference between the buy and sell price of the waste grease * * *.'
38
When the level of prices paid of peddlers by processors dropped in 1952—1954 to less than half of the previous price, the income of peddlers was substantially reduced. This led to intensive competition between peddlers. As a result, the unionization program was designed to increase the profits of the grease peddlers by allocating routes and customers between them and by increasing the margin between the price paid by the peddlers and the price they would receive.
39
The Court said many years before this age of enlightenment that unions were rightfully concerned with 'the standard of wages of their trade in the neighborhood.' American Steel Foundries v. Tri-City Council, 257 U.S. 184, 209, 42 S.Ct. 72, 78, 66 L.Ed. 189. This fact underlies the present controversy. All who haul grease, whether 'employees' or 'peddlers,' are in the same boat. Protection of one protects all. The union plainly has a legitimate interest in the conditions in the industry which increase or reduce employment opportunities or increase or reduce labor's rewards.* The fact that illegal acts were committed does not alter the fact that at heart we have here a 'labor dispute' within the meaning of the Norris-LaGuardia Act. That definition is broad and includes 'any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment.' 29 U.S.C. § 113(c), 29 U.S.C.A. § 113(c). To the extent that the stipulations in this case tend to preclude the conclusion that there was a 'labor dispute' those stipulations should not control. For other stipulations of fact compel the contrary conclusion, which is essentially a legal question. Estate of Sanford v. Commissioner, 308 U.S. 39, 60 S.Ct. 51, 84 L.Ed. 20. 'We are not bound to accept, as controlling, stipulations as to questions of law.' Id., 51, 60 S.Ct. 59.
40
The fact that acts were committed which overstepped the bounds set by the interlacing Sherman, Clayton and Norris-LaGuardia Acts means that the full array of antitrust remedies can be brought against the grease peddlers, insofar as they combined with processors a non-labor group. See Allen Bradley Co. v. Local Union, 325 U.S. 797, 812, 65 S.Ct. 1533, 1541, 89 L.Ed. 1939. Yet that does not mean that they can be expelled from the union. Since there was a 'labor dispute' within the meaning of the Norris-LaGuardia Act, federal courts have no power to compel the grease peddlers to resign as members of the union. For that Act expressly bars a federal court from enjoining anyone from 'Becoming or remaining a member of any labor organization.' 29 U.S.C. § 104(b), 29 U.S.C.A. § 104(b).
41
The fact that the grease peddlers may have committed federal offenses or otherwise shown themselves to be lawless, not law-abiding, in no way qualifies the absolute command of the Norris-LaGuardia Act. Indeed, we held in Allen Bradley Co. v. Local Union, supra, 812, 65 S.Ct. 1533, that a union that combines with business interests to violate the antitrust laws could be enjoined only as respects 'those prohibited activities.' Otherwise we said the injunction would run 'directly counter' to the Norris-LaGuardia Act. Id., 812, 65 S.Ct. 1533. When we sanction the addition of the penalty of expulsion from union membership, we qualify the Allen Bradley decision.
1
'Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal * * *.' 15 U.S.C. § 1, 15 U.S.C.A. § 1.
2
The appeal was brought directly to this Court under the provisions of the Expediting Act, 32 Stat. 823, as amended, 15 U.S.C. § 29, 15 U.S.C.A. § 29.
3
Norris-LaGuardia Act, § 4, 29 U.S.C. § 104, 29 U.S.C.A. § 104:
'104. Enumeration of specific acts not subject to restraining orders or injunctions
'No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:
'(a) Ceasing or refusing to perform any work or to remain in any relation of employment;
'(b) Becoming or remaining a member of any labor organization or of any employer organization, regardless of any such undertaking or promise as is described in section 103 of this title;
'(c) Paying or giving to, or withholding from, any person participating or interested in such labor dispute, any strike or unemployment benefits or insurance, or other moneys or things of value;
'(d) By all lawful means aiding any person participating or interested in any labor dispute who is being proceeded against in, or is prosecuting, any action or suit in any court of the United States or of any State;
'(e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence;
'(f) Assembling peaceably to act or to organize to act in promotion of their interests in a labor dispute;
'(g) Advising or notifying any person of an intention to do any of the acts heretofore specified;
'(h) Agreeing with other persons to do or not to do any of the acts heretofore specified; and
'(i) Advising, urging, or otherwise causing or inducing without fraud or violence the acts heretofore specified, regardless of any such undertaking or promise as is described in section 103 of this title.' Mar. 23, 1932, c. 90, § 4, 47 Stat. 70.
4
Clayton Act, §§ 6 and 20, 15 U.S.C. § 17, 15 U.S.C.A. § 17, and 29 U.S.C. § 52, 29 U.S.C.A. § 52:
'17. Antitrust laws not applicable to labor organizations
'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 horticultural 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 lawful 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.' Oct. 15, 1914, c. 323, § 6, 38 Stat. 731.
'52. Statutory restriction of injunctive relief
'No restraining order or injunction shall be granted by any court of the United States, or a judge or the judges thereof, in any case between an employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employment, involving, or growing out of, a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property, or to a property right, of the party making the application, for which injury there is no adequate remedy at law, and such property or property right must be described with particularity in the application, which must be in writing and sworn to by the applicant or by his agent or attorney.
'And no such restraining order or injunction shall prohibit any person or persons, whether singly or in concert, from terminating any relation of employment, or from ceasing to perform any work or labor, or from recommending, advising, or persuading others by peaceful means so to do; or from attending at any place where any such person or persons may lawfully be, for the purpose of peacefully obtaining or communicating information, or from peacefully persuading any person to work or to abstrain from working; or from ceasing to patronize or to employe any party to such dispute, or from recommending, advising, or persuading others by peaceful and lawful means so to do; or from paying or giving to, or withholding from, any person engaged in such dispute, any strike benefits or other moneys or things of value; or from peaceably assembling in a lawful manner, and for lawful purposes; or from doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto; nor shall any of the acts specified in this paragraph be considered or held to be violations of any law of the United States.' Oct. 15, 1914, c. 323, § 20, 38 Stat. 738.
5
The appellants also urge that the decree violates their right of freedom of association guaranteed by the First Amendment. This contention, carried to its logical conclusion, would render unconstitutional not only many of the provisions of the antitrust laws, but all general criminal conspiracy statutes as well. Such a claim was explicitly rejected in Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834.
The appellants further contend that the decree is void as to grease peddlers who were not joined as defendants. But the order of divestiture ran only against the union:
'The defendant Local 626 is ordered and directed:
'(a) To expel promptly from membership all grease peddlers;
'(b) To refuse membership at any time in the future to any grease peddler;
'(c) To expel from membership any member who becomes a grease peddler;
'(d) To furnish a copy of this decree to all grease peddlers who are now members of Local 626.'
6
In November 1954, the grease peddlers formed a trade association known as the Los Angeles Grease Buyers Association. This association was unsuccessful in its efforts to control the market in restaurant grease, and it was dissolved in early 1955 after a meeting at which the appellant union business agent told the peddlers to choose between the union and the association, stating that the union could do for the peddlers what the association could not do.
7
United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999. Cf. Donaldson v. Read Magazine, 333 U.S. 178, 184, 68 S.Ct. 591, 595, 92 L.Ed. 628.
1
The union agent told the owner of the business that 'if he (the agent) could learn the name of (the processor's) * * * landlord and the buyers to whom (the processor) * * * was selling yellow grease * * * he would bring pressure through the Union to have (the processor's) * * * lease cancelled and to have the buyers stop dealing with (it) * * *.' The agent said that he did not 'want (the processor) * * * in the grease business.'
2
The stipulation of nonemployee status plus the absence of pursuit of any genuine labor objective negatives the existence of any 'labor dispute' and eliminates the need to consider further the applicability of the Norris-LaGuardia Act prohibitions on specified injunctive relief. There is involved neither an extension of Allen Bradley Co. v. Local No. 3, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939, nor a narrowing of the application of Norris-LaGuardia. Similarly obviated is the related question whether the substantive antitrust exemption read into the Norris-LaGuardia Act by United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788, is coextensive with the Act's injunctive inhibitions, so that appellants' waiver of the former with respect to the activities and combination here challenged, see p. 105 of 371 U.S., p. 168 of 83 S.Ct., supra, is also effective to waive the latter.
*
'The small owner-operator or 'gypsy' needs only enough capital to make a down payment on a truck and is free to offer his services at whatever rates he may be willing to accept. In order to protect his equity in his truck he tends, under competitive pressures, to progressively lower his rates until he is taking a bare subsistence for his own wages and is providing inadequate reserves for repairs, maintenance, or replacement. He works long hours, attempts to do his own repair work, often disregards health and safety requirements and load restrictions. He is difficult to organize into trade associations for purposes of self-regulation of rates and standards; and he is likewise difficult to organize into a trade union. He often loses his truck through inability to maintain payments; or when it wears out he has no funds accumulated for another. But there are always new hopefuls to replace him, especially in a period of considerable unemployment (as in the thirties), when an attempt to create self-employment appears to be the only alternative to no employment whatever. Unless regulated in some manner, the small owner-operator constitutes a menace to employment conditions, standards, and in fact to the stability of the entire industry.' Gillingham, The Teamsters Union on the West Coast, Institute of Industrial Relations, U. of Calif. (1956), pp. 35—36.
| 67
|
371 U.S. 132
83 S.Ct. 232
9 L.Ed.2d 190
Chester A. PEARLMAN, Trustee, Petitioner,v.RELIANCE INSURANCE COMPANY.
No. 78.
Augued Oct. 9 and 10, 1962.
Decided Dec. 3, 1962.
Raymond T. Miles, Buffalo, N.Y., for petitioner.
Mark N. Turner, Buffalo. N.Y., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
This is a dispute between the trustee in bankruptcy of a government contractor and the contractor's payment bond surety over which has the superior right and title to a fund withheld by the Government out of earnings due the contractor.
2
The petitioner, Pearlman is trustee of the bankrupt estate of the Dutcher Construction Corporation, which in April 1955 entered into a contract with the United States to do work on the Government's St. Lawrence Seaway project. At the same time the respondent, Reliance Insurance Company,1 executed two surety bonds required of the contractor by the Miller Act, one to guarantee performance of the contract, the other to guarantee payment to all persons supplying labor and material for the project.2 Under the terms of the contract, which was attached to and made a part of the payment bond, the United States was authorized to retain and hold a percentage of estimated amounts due monthly until final completion and acceptance of all work covered by the contract. Before completion Dutcher had financial trouble and the United States terminated its contract by agreement. Another contractor completed the job, which was finally accepted by the Government. At this time there was left in the Government's withheld fund $87,737.35, which would have been due to be paid to Dutcher had it carried out its obligation to pay its laborers and materialmen. Since it had not met this obligation, its surety had been compelled to pay about $350,000 to discharge debts of the contractor for labor and materials. In this situation the Government was holding over $87,000 which plainly belonged to someone else, and the fund was turned over to the bankrupt's trustee, who held it on the assumption that it had been property of the bankrupt at the time of adjudication and therefore had vested in the trustee 'by operation of law' under § 70 of the Bankruptcy Act.3 The surety then filed a petition in the District Court denying that the fund had vested in the trustee, alleging that it, the surety, was 'the owner of said sum' of $87,737.35 'free and clear of the claims of the Trustee in Bankruptcy or any other person, firm or corporation,' and seeking an order directing the trustee to pay over the fund to the surety forthwith.4 The referee in bankruptcy, relying chiefly on this Court's opinion in United States v. Munsey Trust Co., 332 U.S. 234, 67 S.Ct. 1599, 91 L.Ed. 2022 (1947), held that the surety had no superior rights in the fund, refused to direct payment to the surety, and accordingly ordered the surety's claim to be allowed as that of a general creditor only to share on an equality with the general run of unsecured creditors.5 The District Court vacated the referee's order and held that cases decided prior to Munsey had established the right of a surety under circumstances like this to be accorded priority over general creditors and that Munsey had not changed that rule.6 The Second Circuit affirmed.7 Other federal courts have reached a contrary result,8 and as the question is an important and recurring one, we granted certiorari to decide it.9
3
One argument against the surety's claim is that this controversy is governed entirely by the Bankruptcy Act and that § 64, 11 U.S.C. § 104, 11 U.S.C.A. § 104, which prescribes priorities for different classes of creditors, gives no priority to a surety's claim for reimbursement. But the present dispute—who has the property interests in the fund, and how much—is not so simply solved. Ownership of property rights before bankruptcy is one thing; priority of distribution in bankruptcy of property that has passed unencumbered into a bankrupt's estate is quite another. Property interests in a fund not owned by a bankrupt at the time of adjudication, whether complete or partial, legal or equitable, mortgages, liens, or simple priority of rights, are of course not a part of the bankrupt's property and do not vest in the trustee. The Bankruptcy Act simply does not authorize a trustee to distribute other people's property among a bankrupt's creditors.10 So here if the surety at the time of adjudication was, as it claimed, either the outright legal or equitable owner of this fund, or had an equitable lien or prior right to it, this property interest of the surety never became a part of the bankruptcy estate to be administered, liquidated, and distributed to general creditors of the bankrupt. This Court has recently reaffirmed that such property rights existing before bankruptcy in persons other than the bankrupt must be recognized and respected in bankruptcy.11 Consequently our question is not who was entitled to priority in distributions under § 64, but whether the surety had, as it claimed, ownership of, an equitable lien on, or a prior right to this fund before bankruptcy adjudication.
4
Since there is no statute which expressly declares that a surety does acquire a property interest in a fund like this under the circumstances here, we must seek an answer in prior judicial decisions. Some of the relevant factors in determining the question are beyond dispute. Traditionally sureties compelled to pay debts for their principal have been deemed entitled to reimbursement, even without a contractual promise such as the surety here had.12 And probably there are few doctrines better established than that a surety who pays the debt of another is entitled to all the rights of the person he paid to enforce his right to be reimbursed.13 This rule, widely applied in this country14 and generally known as the right of subrogation, was relied on by the Court of Appeals in this case. It seems rather plain that at least two prior decisions of this Court have held that there is a security interest in a withheld fund like this to which the surety is subrogated, unless, as is argued, the rule laid down in those cases has been changed by passage of the Miller Act or by our holding in the Munsey case. Those two cases are Prairie State Bank v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412 (1896), and Henningsen v. United States Fid. & Guar. Co., 208 U.S. 404, 28 S.Ct. 389, 52 L.Ed. 547 (1908).
5
In the Prairie Bank case a surety who had been compelled to complete a government contract upon the contractor's default in performance claimed that he was entitled to be reimbursed for his expenditure out of a fund that arose from the Government's retention of 10% of the estimated value of the work done under the terms of the contract between the original contractor and the Government. That contract contained almost the same provisions for retention of the fund as the contract presently before us. The Prairie Bank, contesting the surety's claim, asserted that it had a superior equitable lien arising from moneys advanced by the bank to the contractor before the surety began to complete the work. The Court, in a well-reasoned opinion by Mr. Justice White, held that this fund materially tended to protect the surety, that its creation raised an equity in the surety's favor, that the United States was entitled to protect itself out of the fund, and that the surety, by asserting the right of subrogation, could protect itself by resort to the same securities and same remedies which had been available to the United States for its protection against the contractor. The Court then went on to quote with obvious approval this statement from a state case:
6
'The law upon this subject seems to be, the reserved per cent. to be withheld until the completion of the work to be done is as much for the indemnity of him who may be a guarantor of the performance of the contract as for him for whom it is to be performed. And there is great justness in the rule adopted. Equitably, therefore, the sureties in such cases are entitled to have the sum agreed upon held as a fund out of which they may be indemnified, and, if the principal releases it without their consent, it discharges them from their undertaking.' 164 U.S. at 239, 17 S.Ct. at 147, quoting from Finney v. Condon, 86 Ill. 78, 81 (1877).
7
The Prairie Bank case thus followed an already established doctrine that a surety who completes a contract has an 'equitable right' to indemnification out of a retained fund such as the one claimed by the surety in the present case. The only difference in the two cases is that here the surety incurred his losses by paying debts for the contractor rather than by finishing the contract.
8
The Henningsen case, decided 12 years later in 1908, carried the Prairie Bank case still closer to ours. Henningsen had contracts with the United States to construct public buildings. His surety stipulated not only that the contractor would perform and construct the buildings, but also, as stated by the Court, that he would 'pay promptly and in full all persons supplying labor and material in the prosecution of the work contracted for.'15 Henningsen completed the buildings according to contract but failed to pay his laborers and materialmen. The surety paid. This Court applied the equitable principles declared in the Prairie Bank case so as to entitle the surety to the same equitable claim to the retained fund that the surety in the Prairie Bank case was held to have. Thus the same equitable rules as to subrogation and property interests in a retained fund were held to exist whether a surety completes a contract or whether, though not called upon to complete the contract, it pays the laborers and materialmen. These two cases therefore, together with other cases that have followed them,16 establish the surety's right to subrogation in such a fund whether its bond be for performance or payment. Unless this rule has been changed, the surety here has a right to this retained fund.
9
It is argued that the Miller Act17 changed the law as declared in the Prairie Bank and Henningsen cases. We think not. Certainly no language of the Act does, and we have been pointed to no legislative history that indicates such a purpose. The suggestion is, however, that a congressional purpose to repudiate the equitable doctrine of the two cases should be implied from the fact that the Miller Act required a public contract surety to execute two bonds instead of the one formerly required. It is true that the Miller Act did require both a performance bond and an additional payment bond, that is, one to assure completion of the contract and one to assure payments by the contractor for materials and labor. But the prior Acts on this subject, while requiring only one bond, made it cover both performance and payment.18 Neither this slight difference in the new and the old Acts nor any other argument presented persuades us that Congress in passing the Miller Act intended to repudiate equitable principles so deeply imbedded in our commercial practices, our economy, and our law as those spelled out in the Prairie Bank and Henningsen cases.19
10
The final argument is that the Prairie Bank and Henningsen cases were in effect overruled by our holding and opinion in United States v. Munsey Trust Co., supra. The point at issue in that case was whether the United States while holding a fund like the one in this case could offset against the contractor a claim bearing no relationship to the contractor's claim there at issue. We held that the Government could exercise the well-established common-law right of debtors to offset claims of their own against their creditors. This was all we held. The opinion contained statements which some have interpreted20 as meaning that we were abandoning the established legal and equitable principles of the Prairie Bank and Henningsen cases under which sureties can indemnify themselves against losses. But the equitable rights of a surety declared in the Prairie Bank case as to sureties who complete the performance of a contract were expressly recognized and approved in Munsey,21 and the Henningsen rule as to sureties who had not completed the contract but had paid laborers was not mentioned. Henningsen was not even cited in the Munsey opinion. We hold that Munsey left the rule in Prairie Bank and Henningsen undisturbed. We cannot say that such a firmly established rule was so casually overruled.22
11
We therefore hold in accord with the established legal principles stated above that the Government had a right to use the retained fund to pay laborers and materialmen; that the laborers and materialmen had a right to be paid out of the fund; that the contractor, had he completed his job and paid his laborers and materialmen, would have become entitled to the fund; and that the surety, having paid the laborers and materialmen, is entitled to the benefit of all these rights to the extent necessary to reimburse it.23 Consequently, since the surety in this case has paid out more than the amount of the existing fund, it has a right to all of it On this basis the judgment of the Court of Appeals is affirmed.
12
Affirmed.
13
Mr. Justice WHITE dissents.
14
Mr. Justice CLARK, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, concurring in the result.
15
The Court holds that the surety company here is entitled to the funds the Government has paid into court on the theory that the surety is subrogated to the claims of the laborers and materialmen which it has paid. I cannot agree. None of the cases in this Court so hold. Indeed, in United States v. Munsey Trust Co., 332 U.S. 234, 67 S.Ct. 1599, 91 L.Ed. 2022 (1947), this Court said:
16
'But nothing is more clear than that laborers and materialmen do not have enforceable rights against the United States for their compensation. * * * They cannot acquire a line on public buildings * * * and as a substitute for that more customary protection, the various statutes were passed which require that a surety guarantee their payment. Of these, the last and the one now in force is the Miller Act under which the bonds here were drawn.' Id., at p. 241, 67 S.Ct. at p. 1602.
17
'(I)t is elementary that one cannot acquire by subrogation what another whose rights he claims did not have. * * *' Id., at p. 242, 67 S.Ct. at p. 1603.
18
Since the laborers and materialmen have no right against the funds, it follows as clear as rain that the surety could have none. It appears to me that today's holding that laborers and materialmen had 'rights' to funds in the Government's hands might jeopardize the rights of the United States and have serious consequences for its building operations. The Congress has not so provided and I would not so hold.
19
However, this Court has held in two cases not necessary to the decision in Munsey that the surety who pays laborers' and materialmen's claims stands in the shoes of the United States and is entitled to surplus funds remaining in its hands after the contract is completed. The first is Prairie State Bank v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412 (1896), and the other Henningsen v. U.S. Fid. & Guar. Co., 208 U.S. 404, 28 S.Ct. 389, 52 L.Ed. 547 (1908). In neither of those cases, however, did the Court find that laborers and materialmen had any right against the United States but only that the 'Guaranty Company (was) entitled to subrogation to any right of the United States government arising through the building contract.' Henningsen, supra, at p. 410, 28 S.Ct. at p. 391.
20
Since the funds here have been paid into court by the Government, there is some question whether the doctrine of those cases would apply. In each of them the money was in the hands of the United States at the time the suit was commenced and was clearly applicable to payment of any debt under the contract. It would, therefore, be my view that the equities existing here in favor of the surety grow out of the contract between it and the contractor (in whose shoes the trustee now stands), which was made in consideration of the execution of the bond. Under that agreement in the event of any breach or default in the construction contract all sums becoming due thereunder were assigned to the surety to be credited against any loss or damage it might suffer thereby. In Martin v. National Surety Co., 300 U.S. 588, 57 S.Ct. 531, 81 L.Ed. 822 (1937), this Court in an identical situation* awarded such a fund to the surety. Mr. Justice Cardozo, for a unanimous Court, said: 'In our view of the law, the equities in favor of materialmen growing out of that agreement (between the surety and the contractor) were impressed upon the fund in the possession of the court.' Id., at pp. 593—594, 57 S.Ct. at p. 533. It is well to note also that the Court of Appeals in Martin had based its decision on the theory announced by the Court today, but Mr. Justice Cardozo for a unanimous Court chose the 'narrower' ground of the assignment in affirming the judgment for the surety. I agree with Martin as to the 'narrower' ground and believe the Court should keep the opinion today 'within the necessities of the specific controversy' rather than enlarging upon the rules of Henningsen and Prairie State Bank. In so doing the Court would but fulfill the prohecy made in Martin that 'the grounds chosen * * * may be expected to be helpful as a guide in other cases.' Id., at p. 593, 57 S.Ct. at p. 533.
21
I would affirm the judgment on this basis.
1
The company was then known as Fire Association of Philadelphia.
2
40 U.S.C. § 270a, 40 U.S.C.A. § 270a provides in part as follows:
'(a) Before any contract, exceeding $2,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States is awarded to any person, such person shall furnish to the United States the following bonds, which shall become binding upon the award of the contract to such person, who is hereinafter designated as 'contractor':
'(1) A performance bond with a surety or sureties satisfactory to the officer awarding such contract, and in such amount as he shall deem adequate, for the protection of the United States.
'(2) A payment bond with a surety or sureties satisfactory to such officer for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person.'
3
30 Stat. 565 (1898), 11 U.S.C. § 110, 11 U.S.C.A. § 110.
4
The surety appears also to have claimed some general priority over all creditors for the entire $350,000 it had paid out for the contractor, based on 'liens, subrogation and assignment,' but here its petition for certiorari and briefs seem to limit its claim to the net amount of the retained fund turned over to the trustee by the Government.
5
35 J.N.A.Ref.Bankr. 81 (1961).
6
In re Dutcher Constr. Corp., 197 F.Supp. 441 (D.C.W.D.N.Y.1961).
7
298 F.2d 655 (C.A.2d Cir. 1962).
8
See, e.g., American Sur. Co. v. Hinds, 260 F.2d 366 (C.A.10th Cir. 1958); Phoenix Indem. Co. v. Earle, 218 F.2d 645 (C.A.9th Cir. 1955).
9
369 U.S. 847, 82 S.Ct. 936, 8 L.Ed.2d 8 (1962).
10
See Justice Holmes' discussion in Sexton v. Kessler & Co., 225 U.S. 90, 98—99, 32 S.Ct. 657, 659, 56 L.Ed. 995 (1912). As to the difficulties inherent in phrases like 'equitable lien,' see Glenn, The 'Equitable Pledge', Creditors' Rights, and the Chandler Act, 25 Va.L.Rev. 422, 423 (1939).
11
United States v. Durham Lumber Co., 363 U.S. 522, 80 S.Ct. 1282, 4 L.Ed.2d 1371 (1960). See also Security Mortgage Co. v. Powers, 278 U.S. 149, 49 S.Ct. 84, 73 L.Ed. 236 (1928), and cases collected in 6 Am.Jur., Bankruptcy, § 949 (rev. ed. 1950). Cf. Aquilino v. United States, 363 U.S. 509, 80 S.Ct. 1277, 4 L.Ed.2d 1365 (1960).
12
'The right of subrogation is not founded on contract. It is a creature of equity; is enforced solely for the purpose of accomplishing the ends of substantial justice; and is independent of any contractual relations between the parties.' Memphis & L.R.R. Co. v. Dow, 120 U.S. 287, 301—302, 7 S.Ct. 482, 488, 489, 30 L.Ed. 595 (1887).
13
See, e.g., Hampton v. Phipps, 108 U.S. 260, 263, 2 S.Ct. 622, 27 L.Ed. 719 (1883); Lidderdale's Executors v. Robinson's Executor, 12 Wheat. 594, 6 L.Ed. 740 (1827); Duncan, Fox, & Co. v. North and South Wales Bank, 6 App.Cas. 1 (H.L. 1880). See generally Sheldon, Subrogation, § 11 (1882).
14
See cases collected in 50 Am.Jur., Subrogation, § 49 (1944).
15
208 U.S., at 410, 28 S.Ct., at 391.
16
See, e.g., Martin v. National Sur. Co., 85 F.2d 135 (C.A.8th Cir. 1936), aff'd, 300 U.S. 588, 57 S.Ct. 531, 81 L.Ed. 822 (1937); In re Scofield Co., 215 F. 45 (C.A.2d Cir. 1914); National Sur. Corp. v. United States, 133 F.Supp. 381, 132 Ct.Cl. 724, cert. denied sub nom. First Nat. Bank v. United States, 350 U.S. 902, 76 S.Ct. 181, 100 L.Ed. 793 (1955).
17
See note 2, supra.
18
28 Stat. 278 (1894), amended, 33 Stat. 811 (1905).
19
Among the problems which would be raised by a contrary result would be the unsettling of the usual view, grounded in commercial practice, that suretyship is not insurance. This distinction is discussed in Cushman, Surety Bonds on Public and Private Construction Projects, 46 A.B.A.J. 649, 652—653 (1960).
20
See note 8, supra.
21
332 U.S., at 240, 67 S.Ct., at 1602.
22
State courts likewise apply the rule that sureties on public contracts are entitled to the benefits of subrogation. See cases collected in 43 Am.Jur., Public Works and Contracts, § 197 (1942).
23
See the somewhat different but closely related discussion by which Mr. Justice Cardozo, speaking for this Court, reached a similar result in Martin v. National Sur. Co., 300 U.S. 588, 597 598, 57 S.Ct. 531, 535, 81 L.Ed. 822 (1937).
Our result has also been reached by the Court of Claims in cases substantially like ours. Continental Cas. Co. v. United States, 169 F.Supp. 945, 145 Ct.Cl. 99 (1959); National Sur. Corp. v. United States, 133 F.Supp. 381, 132 Ct.Cl. 724, cert. denied sub nom. First Nat. Bank v. United States, 350 U.S. 902, 76 S.Ct. 181, 100 L.Ed. 793 (1955); Royal Indem. Co. v. United States, 93 F.Supp. 891, 117 Ct.Cl. 736 (1950). See generally Speidel, 'Stakeholder' Payments Under Federal Construction Contracts: Payment Bond Surety vs. Assignee, 47 Va.L.Rev. 640, 646—648 (1961); note, Reconsideration of Subrogative Rights of the Miller Act Payment Bond Surety, 71 Yale L.J. 1274 (1962); comment, 33 Cornell L.Q. 443 (1948).
*
In Martin the contractor assigned to the surety 'all the deferred payments and retained percentages, and any and all moneys and properties that may be due and payable to the undersigned at the time of any breach or default in said contract, or * * * thereafter * * *.' Id., at pp. 590—591, 57 S.Ct. p. 532. Here the assignment was of, inter alia, 'Any and all percentages of the contract price retained on account of said contract, and any and all sums that may be due under said contract at the time of such * * * forfeiture or breach, or that thereafter may become due * * *.'
| 78
|
371 U.S. 145
83 S.Ct. 211
9 L.Ed.2d 199
FEDERAL POWER COMMISSION, Petitioner,v.TENNESSEE GAS TRANSMISSION COMPANY, The Manufacturers Light and Heat Company, The Ohio Fuel Gas Company and United Fuel Gas Company. CITY OF PITTSBURGH, PENNSYLVANIA, Petitioner, v. TENNESSEE GAS TRANSMISSION COMPANY et al.
Nos. 48, 50.
Argued Oct. 17, 1962.
Decided Dec. 3, 1962.
Ralph S. Spritzer, Washington, D.C., for petitioner in No. 48.
Charles S. Rhyne, Washington, D.C., for petitioner in No. 50.
Harry S. Littman, Washington, D.C., for respondent Tennessee Gas Transmission Co.
Brooks E. Smith, New York City, for respondents Manufacturers Light & Heat Co., Ohio Fuel Gas Co., and United Fuel Gas Co.
Mr. Justice CLARK delivered the opinion of the Court.
1
This case involves the authority of the Federal Power Commission after hearing to order an interim rate reduction as well as a refund of amounts collected in excess thereof where a portion of a previously filed increased rate is found unjustified but the remainder of the proceeding is deferred. Respondent Tennessee Gas Transmission Company, a natural gas company, included within its filed increased rate schedule a 7% over-all return on its net investment. In considering this item1 along with others involved in the filing, including the allocation of the over-all cost of service among its rate zones, the Commission concluded, after a full hearing, that 6 1/8% rather than the filed 7% would be a just and reasonable return. It accordingly required Tennessee Gas to file reduced rates, based on the lower return figure, retroactive to the end of a five-month suspension period, and ordered a refund of the excessive amounts collected since that date. 24 F.P.C. 204. The Court of Appeals, 293 F.2d 761, found that the 6 1/8% return was just and reasonable. It held, however, by a divided vote, that the Commission erred in ordering an immediate reduction and refund since it had not determined other issues in the proceeding, particularly that of the proper allocation of the over-all costs of the company's services among its six zones. The latter, the court reasoned, might be determinative of the ultimate question of whether the over-all filed rates in each zone were just and reasonable; therefore, the interim order might result in irretrievable loss to the company. The importance of the question in the administration of the Natural Gas Act led us to grant certiorari, 368 U.S. 974, 82 S.Ct. 479, 7 L.Ed.2d 437. We have concluded that the issuance of the order was an appropriate exercise of the power granted the Commission by the Act.
I.
2
Tennessee Gas does not have a system-wide rate applicable to all services regardless of where performed. It has since the early 1950's, with Commission approval, divided its extensive pipeline system into six rate zones with rate differentials. The appropriate allocation of its costs of service among these zones and types of customers was not then decided by the Commission nor agreed upon between the parties, but was left for future decision. It was in this posture that in 1959 Tennessee Gas, pursuant to § 4(d) of the Natural Gas Act,2 filed with the Commission proposed increased rates for its six rate zones. The rates were predicated upon a cost of service which included a claim to a 7% rate of return on net investment. At the inception of hearings on the reasonableness of the filed rates the Commission, under its § 4(e)3 authority, imposed a five-month suspension period on the proposed increase after which the rates became effective subject to refund of any portion not ultimately justified by Tennessee Gas in the Proceedings.
3
Hearings commenced on February 2, 1960, and Tennessee Gas presented its evidence on cost of service and rate of return. The Commission staff presented evidence on the latter alone and then proposed that the rate of return issue be treated separately from cost of service and allocation of rates among zones. At the time of this proposal to the Commission the zone allocation issue was also pending in another docket in a proceeding involving Tennessee Gas. By motion Tennessee Gas requested that the allocation issue be decided simultaneously with that involving the rate of return. On August 5, 1960, this motion was denied, and four days later the Commission issued the interim order under attack here. It found that a 7% return was excessive and that a 6 1/8% rate of return was just and reasonable. This finding was based on the Commission's determination that Tennessee Gas had failed to justify a rate of return greater than 6 1/8%. Accordingly, the Commission issued an interim order which disallowed the 7% return, required Tennessee Gas to file appropriate lower rates retroactively to the effective date of the increased rates and ordered refunds of the differences collected since that time. Tennessee Gas does not contest the Commission's determination that a 6 1/8% return on its net investment is just and reasonable. It does contend that to require the refunds prior to a determination of cost allocation among its zones of operation might result in its being unable to realize this return during the refund period. In this connection it points out that the rates as finally determined might, in some of its zones, be above the rates collected less the refund ordered. This would result in Tennessee Gas not being able to recoup a return of 6 1/8% since it would be unable to collect retroactively the higher rates found appropriate in those zones while it would be required to make full refunds in the remaining lower rate zones.
4
The Court of Appeals, in setting aside the Commission's order of immediate reduction and refund, found that it was unreasonable and an abuse of discretion to thus splinter the issues, especially since the cost allocation among zones issue was deemed 'ripe for decision,'4 and a ruling on it was an 'essential element in determining whether the filed rates are excessive.' The court also questioned whether a hearing confined to the issue of rate of return was such a 'full hearing' as § 4(e) demands prerequisite to a ratechange and refund order.
5
The Federal Power Commission and the City of Pittsburgh, which is acting in behalf of resident consumers of natural gas, are here in separate cases. Since they raise identical factual and legal issues, we consider the two cases together.5
II.
6
As all of the respondents admit, there is 'no question' as to the Commission's authority to issue interim rate orders. Indeed, such general authority is well established by cases in this Court, Federal Power Comm. v. Natural Gas Pipeline Co., 315 U.S. 575, 62 S.Ct. 736, 86 L.Ed. 1037 (1942); New England Divisions Case (Akron, C. & Y.R. Co. v. United States), 261 U.S. 184, 43 S.Ct. 270, 67 L.Ed. 605 (1923), as well as in the Courts of Appeals. Panhandle Eastern Pipe Line Co. v. Federal Power Comm., 236 F.2d 606 (C.A.3d Cir. 1956); State Corporation Comm. of Kansas v. Federal Power Comm., 206 F.2d 690 (C.A.8th Cir. 1953). It is true that none of these cases involved an undecided cost allocation issue applicable retroactively. However, in Natural Gas Pipeline Co. this Court took pains to point out the fact that 'establishment of a rate for a regulated industry often involves two steps of different character, one of which may appropriately precede the other.' 315 U.S., at p. 584, 62 S.Ct., at p. 742. Significantly, that case also involved the issue of a fair rate of return and 'the adjustment of a rate schedule * * * so as to eliminate discriminations and unfairness from its details.' Ibid. And the Court specifically found power to order a decrease in rates 'without establishing a specific schedule.' It declared that the proviso of § 56 authorized the Commission to 'order a decrease where existing rates are unjust * * * unlawful, or are not the lowest reasonable rates'. Finally, the Court concluded that § 167 placed discretion in the Commission to 'issue * * * such orders * * * as it may find necessary or appropriate to carry out the provisions of this chapter.' Here the Commission took similar action directing Tennessee Gas to file a new schedule which would reflect the prescribed 7/8% reduction in the rate of return and, in addition, to refund under § 4(e) the amounts collected in excess of the lower, substituted charges reflecting the lawful rate of return. The fact that the Natural Gas Pipeline Co. case was initiated under § 5 of the Act and the refund provisions of § 4(e) were not available was, in our opinion, of no consequence since the hazard of not making a profit remains on the company in each instance. ,'discriminations and unfairness' if later found present in Natural Gas Pipeline's schedule might have caused it losses just as the refunds might here. In addition, an analysis of the policy of the Act clearly indicates that a natural gas company initiating an increase in rates under § 4(d) assumes the hazards involved in that procedure. It bears the burden of establishing its rate schedule as being 'just and reasonable.' In addition, the company can never recoup the income lost when the five-month suspension power of the Commission is exercised under § 4 (e). The company is also required to refund any sums thereafter collected should it not sustain its burden of proving the reasonableness of an increased rate, and it may suffer further loss when the Commission upon a finding of excessiveness makes adjustments in the rate detail of the company's filing. In this latter respect a rate for one class or zone of customers may be found by the Commission to be too low, but the company cannot recoup its losses by making retroactive the higher rate subsequently allowed; on the other hand, when another class or zone of customers is found to be subjected to excessive rates and a lower rate is ordered, the company must make refunds to them. The company's losses in the first instance do not justify its illegal gain in the latter. Such situations are entirely consistent with the policy of the Act and, we are told, occur with frequency. The company having initially filed the rates and either collected an illegal return or failed to collect a sufficient one must, under the theory of the Act, shoulder the hazards incident to its action including not only the refund of any illegal gain but also its losses where its filed rate is found to be inadequate.
7
Nor do we share the doubts of the Court of Appeals concerning the practicalities of the two-step procedure invoked by the Commission. We cannot see how the severance of the two issues left Tennessee Gas without guidance as to 'the extent to which individual rates should be reduced, or to whom refunds are due.' 293 F.2d, at p. 767. The Commission has found that the revised over-all rate schedule should have been calculated on a rate of return of 6 1/8% rather than 7%. As a result the over-all rate was to that extent unlawful and refunds were due across the board to all customers in the Tennessee Gas system. The interim order directed their payment. True, the old and undecided zone rate structure under attack as discriminatory was left in effect by this order and survives a bit longer. But the probabilities present in that situation are more than offset by the certainty of the Commission's actions in finding the 7% rate unlawful, fixing the 6 1/8% lawful return and giving timely effectiveness, including refunds, to the latter. Perhaps discrimination may later be found in the allocation of cost between some zones, but it would affect only the customers in those zones while the postponement of the interim order here would be of continuing detriment to all customers in all zones. Moreover, if decreased rates and resultant refunds are later found to be necessary in those isolated instances the Commission has the power to so order upon such finding and the individual lawful rates could at that time be fixed
8
Moreover, the use of the interim order technique is in keeping with the purposes of the Act 'to protect consumers against exploitation at the hands of natural gas companies * * *,' Federal Power Comm. v. Hope Natural Gas Co., 320 U.S. 591, 610, 64 S.Ct. 281, 291, 88 L.Ed. 333 (1944), and 'to underwrite just and reasonable rates to the consumers of natural gas. * * *' Atlantic Refining Co. v. Public Service Comm. of New York, 360 U.S. 378, 388, 79 S.Ct. 1246, 1253, 3 L.Ed.2d 1312 (1959). Faced with the finding that the rate of return was excessive, the Commission acted properly within its statutory power in issuing the interim order of reduction and refund, since the purpose of the Act is 'to afford consumers a complete, permanent and effective bond of protection from excessive rates and charges. * * *' Id., at p. 388, 79 S.Ct., at p. 1253. To do otherwise would have permitted Tennessee Gas to collect the illegal rate for an additional 18 months8 at a cost of over $16,500,000 to consumers. True, the exaction would have been subject to refund, but experience has shown this to be somewhat illusory in view of the trickling down process necessary to be followed, the incidental cost of which is often borne by the consumer, and in view of the transient nature of our society which often prevents refunds from reaching those to whom they are due.9 It is, therefore, the duty of the Commission to look at 'the backdrop of the practical consequences (resulting) * * * and the purposes of the Act,' Sunray Mid-Continent Oil Co. v. Federal Power Comm., 364 U.S. 137, 147, 80 S.Ct. 1392, 1399, 4 L.Ed.2d 1623 (1960), in exercising its discretion under § 16 to issue interim orders and, where refunds are found due, to direct their payment at the earliest possible moment consistent with due process. In so doing under the circumstances here the Commission's ultimate action in directing the severance and in entering the interim order was not only entirely appropriate but in the best tradition of effective administrative practice.
9
The judgment of the Court of Appeals is reversed insofar as it set aside the interim order; otherwise it is affirmed.
10
Reversed in part.
1
On motion of the Commission's staff counsel, the proceeding was divided into two phases: (1) determination of rate of return; (2) determination of other factors, including allocation of rates among zones.
2
15 U.S.C. § 717c(d), 15 U.S.C.A. § 717c(d):
'Unless the Commission otherwise orders, no change shall be made by any natural-gas company in any such rate, charge, classification, or service, or in any rule, regulation, or contract relating thereto, except after thirty days' notice to the Commission and to the public. Such notice shall be given by filing with the Commission and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force and the time when the change or changes will go into effect. The Commission, for good cause shown, may allow changes to take effect without requiring the thirty days' notice herein provided for by an order specifying the changes so to be made and the time when they shall take effect and the manner in which they shall be filed and published.'
3
15 U.S.C. § 717c(e), 15 U.S.C.A. § 717c(e): (e):
'Whenever any such new schedule is filed the Commission shall have authority * * * to enter upon a hearing concerning the lawfulness of such rate, charge, classification, or service; and, pending such hearing and the decision thereon, the Commission, upon filing with such schedules and delivering to the natural-gas company affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, classification, or service, but not for a longer period than five months beyond the time when it would otherwise go into effect * * *.'
4
In this connection we note the Commission found:
'Hearings on the cost allocation issue, severed from the other issues in Docket No. G—11980 by Commission order, were concluded on December 17, 1959, and briefing thereon was concluded on April 11, 1960. Tennessee's motion for omission of the intermediate decision on that issue is neither timely nor concurred in by the other parties to the proceeding. Further, while we recognize that an early decision on that issue is desirable, the nature and considerable size of the record, indicates that it would be more practicable in the interests of an early decision and in the interest of effective administration of the Natural Gas Act, that the Presiding Examiner, who has available knowledge of that record, should proceed with consideration of the evidence and render decision thereon.' Unreported order of the Commission issued Aug. 5, 1960.
5
Respondents Columbia Gas Companies raise a separate point as to their not being permitted to offer evidence in this case as to cost allocation. We note that they had a full opportunity to do so in another proceeding involving the same parties. This contention, therefore, has no merit. This hearing, insofar as it determined that the rate of return was unreasonable, was to that extent and for the purpose of the interim order the 'full hearing' contemplated by the statute, even though it did not at that time dispose of the entire case.
6
15 U.S.C. § 717d(a), 17 U.S.C.A. § 717d(a): d(a):
'* * * Provided, however, That the Commission shall have no power to order any increase in any rate contained in the currently effective schedule of such natural gas company on file with the Commission, unless such increase is in accordance with a new schedule filed by such natural gas company; but the Commission may order a decrease where existing rates are unjust, unduly discriminatory, preferential, otherwise unlawful, or are not the lowest reasonable rates.'
7
15 U.S.C. § 717o, 15 U.S.C.A. § 717o:
'The Commission shall have power to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions of this chapter. Among other things, such rules and regulations may define accounting, technical, and trade terms used in this chapter; and may prescribe the form or forms of all statements, declarations, applications, and reports to be filed with the Commission, the information which they shall contain, and the time within which they shall be filed. Unless a different date is specified therein, rules and regulations of the Commission shall be effective thirty days after publication in the manner which the Commission shall prescribe. Orders of the Commission shall be effective on the date and in the manner which the Commission shall prescribe. For the purposes of its rules and regulations, the Commission may classify persons and matters within its jurisdiction and prescribe different requirements for different classes of persons or matters. All rules and regulations of the Commission shall be filed with its secretary and shall be kept open in convenient form for public inspection and examination during reasonable business hours. June 21, 1938, c. 556, § 16, 52 Stat. 830.'
8
The cost allocation issue was decided 18 months following the Commission's decision on rate of return, and substantial issues on the cost-of-service question are still unresolved. If the interim order had not been entered the illegal rate would have been in effect 22 months, with an excessive return of some $20,000,000.
9
In some of the States refunds due unfound former customers remain with the company in separate accounts subject to future order; a larger group escheats such amounts to the State; others permit them to be used in defraying the cost of the refund; a fourth group has no problem regarding transients since refunds are prorated among company customers and credited on future bills; and one State includes all refunds in future rate reductions. While refunds are permissible in cash, most of the States approve plans whereby credits are permitted on future gas bills in proportion to average consumption.
| 78
|
371 U.S. 178
83 S.Ct. 227
9 L.Ed.2d 222
Lenore FOMAN, Petitioner,v.Elvira A. DAVIS.
No. 41.
Argued Nov. 14, 1962.
Decided Dec. 3, 1962.
Milton Bordwin, Boston, Mass., for petitioner.
Roland E. Shaine, Boston, Mass., for respondent.
Mr. Justice GOLDBERG delivered the opinion of the Court.
1
Petitioner filed a complaint in the District Court alleging that, in exchange for petitioner's promise to care for and support her mother, petitioner's father had agreed not to make a will, thereby assuring petitioner of an intestate share of the father's estate; it was further alleged that petitioner had fully performed her obligations under the oral agreement, but that contrary thereto the father had devised his property to respondent, his second wife and executrix. Petitioner sought recovery of what would have been her intestate share of the father's estate. Respondent moved to dismiss the complaint on the ground that the oral agreement was unenforceable under the applicable state statute of frauds. Accepting respondent's contention, the District Court entered judgment on December 19, 1960, dismissing petitioner's complaint for failure to state a claim upon which relief might be granted. On December 20, 1960, petitioner filed motions to vacate the judgment and to amend the complaint to assert a right of recovery in quantum meruit for performance of the obligations which were the consideration for the assertedly unenforceable oral contract. On January 17, 1961, petitioner filed a notice of appeal from the judgment of December 19, 1960. On January 23, 1961, the District Court denied petitioner's motions to vacate the judgment and to amend the complaint. On January 26, 1961, petitioner filed a notice of appeal from denial of the motions.
2
On appeal, the parties briefed and argued the merits of dismissal of the complaint and denial of petitioner's motions by the District Court. Notwithstanding, the Court of Appeals of its own accord dismissed the appeal insofar as taken from the District Court judgment of December 19, 1960, and affirmed the orders of the District Court entered January 23, 1961. 1 Cir., 292 F.2d 85. This Court granted certiorari. 368 U.S. 951, 82 S.Ct. 396, 7 L.Ed.2d 385.
3
The Court of Appeals reasoned that in the absence of a specific designation of the provision of the Federal Rules of Civil Procedure, 28 U.S.C.A. under which the December 20, 1960, motion to vacate was filed, the motion would be treated as filed pursuan to Rule 59(e), rather than under Rule 60(b);1 since, under Rule 73 (a),2 a motion under Rule 59 suspends the running of time within which an appeal may be perfected, the first notice of appeal was treated as premature in view of the then pending motion to vacate and of no effect. The Court of Appeals held the second notice of appeal, filed January 26, 1961, ineffective to review the December 19, 1960, judgment dismissing the complaint because the notice failed to specify that the appeal was being taken from that judgment as well from the orders denying the motions. Considering the second notice of appeal, therefore, only as an appeal from the denial by the District Court of the motions to vacate and amend, the Court of Appeals held that there was nothing in the record to show the circumstances which were before the District Court for consideration in ruling on those motions; consequently it regarded itself as precluded from finding any abuse of discretion in the refusal of the court below to allow amendment.
4
The Court of Appeals' treatment of the motion to vacate as one under Rule 59(e) was permissible, at least as an original matter, and we will accept that characterization here. Even if this made the first notice of appeal premature, we must nonetheless reverse for we believe the Court of Appeals to have been in error in so narrowly reading the second notice.
5
The defect in the second notice of appeal did not mislead or prejudice the respondent. With both notices of appeal before it (even granting the asserted ineffectiveness of the first), the Court of Appeals should have treated the appeal from the denial of the motions as an effective, although inept, attempt to appeal from the judgment sought to be vacated. Taking the two notices and the appeal papers together, petitioner's intention to seek review of both the dismissal and the denial of the motions was manifest. Not only did both parties brief and argue the merits of the earlier judgment on appeal, but petitioner's statement of points on which she intended to rely on appeal, submitted to both respondent and the court pursuant to rule, similarly demonstrated the intent to challenge the dismissal.
6
It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities. 'The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.' Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80. The Rules themselves provide that they are to be construed 'to secure the just, speedy, and inexpensive determination of every action.' Rule 1.
7
The Court of Appeals also erred in affirming the District Court's denial of petitioner's motion to vacate the judgment in order to allow amendment of the complaint. As appears from the record, the amendment would have done no more than state an alternative theory for recovery.
8
Rule 15(a) declares that leave to amend 'shall be freely given when justice so requires'; this mandate is to be heeded. See generally, 3 Moore, Federal Practice (2d ed. 1948), 15.08, 15.10. If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules require, be 'freely given.' Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.
9
The judgment is reversed and the cause is remanded to the Court of Appeals for further proceedings consistent with this opinion. It is so ordered.
10
Judgment reversed and cause remanded with directions.
11
Separate memorandum of Mr. Justice HARLAN, in which Mr. Justice WHITE joins.
12
I agree with the Court as to the dismissal of petitioner's appeal by the Court of Appeals. However, as to her motion to vacate the order of the District Court and for leave to amend the complaint, I believe such matters are best left with the Courts of Appeals, and I would dismiss the writ of certiorari, in that respect, as improvidently granted.
1
Rule 59(e) provides:
'A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.'
Rule 60(b) provides in relevant part:
'On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect * * * or (6) any other reason justifying relief from the operation of the judgment. * * * A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation * * *'
2
Rule 73(a) provides in relevant part:
'The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subdivision commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules * * * granting or denying a motion under Rule 59 to alter or amend the judgment * * *.'
| 89
|
371 U.S. 156
83 S.Ct. 239
9 L.Ed.2d 207
BURLINGTON TRUCK LINES, INC., et al., Appellants,v.UNITED STATES et al. GENERAL DRIVERS AND HELPERS UNION, LOCAL 554, etc., Appellant, v. UNITED STATES et al.
Nos. 27, 28.
Argued Oct. 15 and 16, 1962.
Decided Dec. 3, 1962.
[Syllabus from pages 156-158 intentionally omitted]
David Axelrod, Chicago, Ill., for appellants in No. 27.
David D. Weinberg, Omaha, Neb., for appellants in No. 28.
Robert W. Ginnane, Washington, D.C., for appellees United States and Interstate Commerce Commission.
J. Max Harding, Lincoln, Neb., for appellee Nebraska Short Line Carriers, Inc.
Mr. Justice WHITE delivered the opinion of the Court.
1
These are direct appeals under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253 from the judgment of a three-judge District Court, 194 F.Supp. 31 (S.D.Ill.), which upheld an order of the Interstate Commerce Commission, 79 M.C.C. 599, granting a motor common carrier application. This Court noted probable jurisdiction because of important questions raised as to the relationship and interplay between remedies available under the Interstate Commerce Act and under the National Labor Relations Act as amended by the Labor Management Relations Act. 49 U.S.C.A. § 1 et seq.; 29 U.S.C.A. § 151 et seq., 368 U.S. 951, 82 S.Ct. 393, 7 L.Ed.2d 385.
2
Appellee Nebraska Short Line Carriers, Inc., is a Nebraska corporation, organized in June 1956. All of its stock is owned by 12 motor carriers serving eastern and central Nebraska and interchanging interstate traffic at Omaha and other gateway points with over 20 larger trunk-line carriers, among whom are the appellant carriers, with whom throughroute, joint-rate, interline arrangements have been established. Some of the stockholder carriers serve Nebraska communities without other motor carrier or rail service.
3
For some time prior to May 1956, the stockholder carriers had resisted efforts by the Teamsters Union too unionize their operations. Eventually, the union sought to bring economic pressure to bear upon the stockholder carriers by a secondary boycott against their traffic through the larger, unionized, trunk-line carriers upon whom the stockholder carriers were dependent for interchanging traffic to and from points beyond Nebraska. The collective bargaining contract between the trunkline carriers and the union contained protection of rights or so-called 'hot cargo' clauses which reserved to the union and its members 'the right to refuse to handle goods from or to any firm or truck' involved in any controversy with the union and provided that it should not be a cause for discharge if an employee of the carrier refused to handle 'unfair' goods.1
4
In May 1956, some of the stockholder carriers began experiencing difficulties in receiving and delivering freight from and to many of their normal and logical connections at Omaha and, to some extent, at Sioux City, Lincoln, and Grand Island. The difficulty consisted primarily of the refusal on the part of many of the larger carriers to accept interline traffic tendered to them by the stockholder carriers and the refusal to turn over to them inbound traffic routed over their lines or normally turned over to them for delivery to ultimate destinations in Nebraska. The stockholder carriers, shippers, and consignees thus experienced considerable delay, inconvenience, and unforeseen expense in the movement of traffic to and from interior Nebraska points. At the same time, however, some of the larger interlining carriers, particularly appellants Burlington Truck Lines, Inc., and Santa Fe Trail Transportation Company, generally maintained normal interline relationships with the stockholder carriers.
5
The stockholder carriers thereupon organized Short Line and on June 22, 1956, Short Line filed an application with the Interstate Commerce Commission for common carrier authority to transport commodities on a regularly scheduled basis between certain Nebraska and Iowa points and points in other States. A further application for operating authority over irregular routes between Omaha and points in 32 different States was filed six months later. The applications were assigned to two different examiners, each of whom recommended that the application before him be denied. The Commission stated that 'the pertinent facts are accurately and adequately stated' in the examiners' reports and adopted the statements as its own (79 M.C.C., at 605, 608), but it concluded that the first application should be granted in part.2 The Commission found that although service in the area was satisfactory before May 1956, after that date the union-induced boycott of the stockholder carriers caused 'a substantial disruption' and 'serious inadequacies in the service available.' 79 M.C.C., at 612, 613. Accordingly, it found that grant of Short Line's application was required by 'the present and future public convenience and necessity.' Id., at 613. The Commission declared that it was not attempting to adjudicate a labor dispute or trench upon the jurisdiction of the National Labor Relations Board, and it conceded its lack of jurisdiction to look beyond the duties of carriers to the public under the terms of the Interstate Commerce Act. Id., at 611. It strongly criticized the carrier appellants for yielding to union secondary boycott demands, however, and it declared that the carriers' failure to fulfill their duties as common carriers was particularly inexcusable since there had been no violence or imminent threats of danger to property or person. The Commission expressed the opinion that alleged 'apprehensions of certain of the organized carriers that any opposition to the demands of the union would have resulted in reprisals against them' were 'greatly exaggerated,' and it noted that some of the interlining carriers had successfully continued to deal with the stockholder carriers, with at least one of them encountering no difficulties with its employees when it changed its policy and carried out its statutory duties as a common carrier and interlined with the Short Line carriers.3 Id., at 612.
6
Finally, the Commission considered the remedy appropriate to the situation. Short Line had applied for operating authority under § 207 (certificates of public convenience and necessity). As the Commission noted, the Act provides other means of correcting deficiencies of service. Section 204(c) empowers the Commission to order carriers to comply with the transportation laws, and the Commission may act upon complaint or upon its own motion without complaint, in each case after notice and hearing, and sanctions are available to enforce its orders;4 § 212(a) empowers the Commission to suspend certificates for failure to comply with duties under the Act. The Commission proceeded to dispose of the remedy problem in the following manner:
7
'We do not agree with those of the parties who insist that the procedure here adopted; namely, the filing of the instant applications under the provisions of section 207 of the act, is in any manner inappropriate. Regardless of the injection of the labor situation into the matter, the instant applications are based upon claimed deficiencies in the motor service available to the shipping public of Nebraska. Where, as here, the existing carriers are shown to have so conducted their operations as to result in serious inadequacies in the service available to a large section of the public, one effective method of correcting the situation is by the granting of authority for sufficient additional service, and, in fact, we are charged with the duty of procuring such additional facilities as may be necessary to carry out the purposes of the national transportation policy. The fact that other remedies are available, such as the suggested filing of complaints by the aggrieved carriers and shippers does not alter the situation or deprive any carrier of the right to follow the course here chosen.' Id., at 613.
8
The Commission therefore granted the application.5
9
The protesting carriers and the affected union sought judicial review before a three-judge District Court (28 U.S.C. §§ 1336, 1398, 2321—2325, 28 U.S.C.A. §§ 1336, 1398, 2321—2325), which upheld the order as within the scope of the Commission's statutory authority, based on adequate findings, and supported by substantial evidence. 194 F.Supp. 31. The court reviewed the evidence and concluded that although there was 'no doubt that their (the protesting carriers') ability to perform service prior to May 195(6) was adequate,' the record showed that union pressure made it inadequate thereafter. 194 F.Supp. at 45. The court recognized that a cease-and-desist order might have been utilized, but stated that additional certification was also a permissible remedy which was not made unavailable merely because the reason for inadequacy of service was that 'existing carriers (were) subordinating their public service obligations to their collective bargaining agreements.' Id., at 54.
10
In regard to the choice of remedy, the court rejected the contention that the passage of the Labor-Management Reporting and Disclosure Act of 1959, which added § 8(e) to the National Labor Relations Act, as amended by the Labor Management Relations Act, 73 Stat. 543, 29 U.S.C. (Supp. III) § 158(e), 29 U.S.C.A. § 158(e), some four months after the entry of the order, mooted the case by making the union activities in inducing the organized carriers to boycott the Short Line stockholder carriers illegal and therefore unlikely to be resumed. The District Court expressed doubts as to whether § 8(e) 'effectively outlaws 'hot cargo' clauses,' and maintained that, even if it did, the Commission's order should still stand. Id., at 58. To the union's contention that grant of a certificate here injected the Interstate Commerce Commission into the province of the National Labor Relations Board, or at least undercut to some extent the policies of § 7 of the National Labor Relations Act, the court replied that the union's failure to organize the employees of the Short Line carriers 'effectively destroyed any jurisdiction of the National Labor Relations Board under the Act of its creation.' Id., at 59.6 The case is now before us on direct appeals from this judgment.
11
We have concluded that the judgment of the District Court must be reversed and the Commission's order set aside as an improvident exercise of its discretion. The Commission found from the facts of record that the refusals to handle interchange traffic and to accept freight from certain shippers7 caused a substantial disruption in motor service and serious inadequacies in the service available, despite the efforts of some of the larger trunk-line carriers to maintain normal interline relationships. There was ample evidence to support these findings and we do not disturb them.
12
The difficulty with the order arises in connection with the findings and conclusions relevant to the choice of remedy. The assumption of the Commission was that the deficiencies of service made either of two remedies available—additional certification or entry of a cease-and-desist order—and that it had unlimited discretion to apply either remedy simply because either might be effective. It is unmistakably clear from the opinion of the Commission and from the fact-findings it made or adopted,8 that the disruption in service resulted solely from refusals to serve, which in turn arose from union pressure applied to obtain union objectives. It is equally clear that absent union pressure there would have been no refusals to serve and that in such normal circumstances the facilities and the services of the existing carriers were adequate.9 Moreover, the trunk-line carriers were operating below capacity,10 were in a position and anxious to transport additional traffic11, and had been enjoying the previously interlined traffic which the grant would divert to Short Line.12 In this factual context we may put aside at the outset the authority which the appellees rely upon that holds that additional certification is the normal and permissible way to deal with generalized inadequacy in service. See, e.g., Davidson Transfer Co. v. United States, 42 F.Supp. 215, 219—220 (E.D.Pa.), aff'd, 317 U.S. 587, 63 S.Ct. 31, 87 L.Ed. 481.13 When, as here, the particular deviations from an otherwise completely adequate service (which has economic need for the traffic) consist solely of illegal and discriminatory refusals to accept or deliver traffic from or to particular carriers or shippers, the powers of the Commission under §§ 204, 212, and 216 bear heavily on the propriety of § 207 relief. And in such a case the choice of the certification remedy may not be automatic; it must be rational and based upon conscious choice that in the circumstances the public interest in 'adequate, economical, and efficient service' outbalances whatever public interest there is in protecting existing carriers' revenues in order to 'foster sound economic conditions in transportation and among the several carriers' (National Transportation Policy, 49 U.S.C. preceding §§ 1, 301, 901, 1001, 49 U.S.C.A. preceding §§ 1, 301, 901, 1001),14 and the other opposing interests.
13
There are no findings and no analysis here to justify the choice made, no indication of the basis on which the Commission exercised its expert discretion. We are not prepared to and the Administrative Procedure Act15 will not permit us to accept such adjudicatory practice. See Siegel Co. v. Federal Trade Comm'n, 327 U.S. 608, 613—614, 66 S.Ct. 758, 761, 90 L.Ed. 888. Expert discretion is the lifeblood of the administrative process, but 'unless we make the requirements for administrative action strict and demanding, expertise, the strength of modern government, can become a monster which rules with no practical limits on its discretion.' New York v. United States, 342 U.S. 882, 884, 72 S.Ct. 152, 153, 96 L.Ed. 662 (dissenting opinion). 'Congress did not purport to transfer its legislative power to the unbounded discretion of the regulatory body.' Federal Communications Comm'n v. RCA Communications, Inc., 346 U.S. 86, 90, 73 S.Ct. 998, 1002, 97 L.Ed. 1470. The Commission must exercise its discretion under § 207(a) within the bounds expressed by the standard of 'public convenience and necessity.' Compare id., at 91, 73 S.Ct. at 1002, 97 L.Ed. 1470. And for the courts to determine whether the agency has done so, it must 'disclose the basis of its order' and 'give clear indication that it has exercised the discretion with which Congress has empowered it.' Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 197, 61 S.Ct. 845, 854, 85 L.Ed. 1271. The agency must make findings that support its decision, and those findings must be supported by substantial evidence. Interstate Commerce Comm'n v. J T Transport Co., 368 U.S. 81, 93, 82 S.Ct. 204, 211, 7 L.Ed.2d 147; United States v. Carolina Freight Carriers Corp., 315 U.S. 475, 488—489, 62 S.Ct. 722, 729, 86 L.Ed. 971; United States v. Chicago, M., St. P. & P.R. Co., 294 U.S. 499, 511, 55 S.Ct. 462, 79 L.Ed. 1023. Here the Commission made no findings specifically directed to the choice between two vastly different remedies with vastly different consequences to the carriers and the public. Nor did it articulate any rational connection between the facts found and the choice made. The Commission addressed itself neither to the possible shortcomings of § 204 procedures, to the advantages of certification, nor to the serious objections to the latter. As we shall presently show, these objections are particularly important in the present context and they should have been taken into account.
14
Appellants' position is and was that the refusals to serve could be terminated through complaint procedures and thus the need for additional service obviated. The Commission was, as indicated, unresponsive to these arguments in its order, deeming that the availability of the other remedy '(did) not alter the situation.' This was error. Commission counsel now attempt to justify the Commission's 'choice' of remedy on the ground that a cease-and-desist order would have been ineffective. The short answer to this attempted justification is that the Commission did not so find. Securities & Exchange Comm'n v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995. The courts may not accept appellate counsel's post hoc rationalizations for agency action; Chenery requires that an agency's discretionary order be upheld, if at all, on the same basis articulated in the order by the agency itself:
15
'(A) simple but fundamental rule of administrative law * * * is * * * that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action * * *.' Ibid.
16
For the courts to substitute their or counsel's discretion for that of the Commission is incompatible with the orderly functioning of the process of judicial review. This is not to deprecate, but to vindicate (see Phelps Dodge Corp. v. Labor Board, 313 U.S. 177, 197, 61 S.Ct. 845, 853, 854, 85 L.Ed. 1271), the administrative process, for the purpose of the rule is to avoid 'propel(ling) the court into the domain which Congress has set aside exclusively for the administrative agency.' 332 U.S., at 196, 67 S.Ct., at 1577, 91 L.Ed. 1995.
17
The second and longer answer to the attempted justification is that there is not substantial evidence of record upon which to base a finding that a cease-and-desist order would have been ineffective. There was every indication at the time that a cease-and-desist order would render the deficiencies in service purely temporary phenomena and would thus be effective in promoting adequate, economical, and efficient service and in fostering sound economic conditions among the carriers affected.
18
It is said that attempted compliance by the unionized carriers might in some way 'so aggravate their labor difficulties as to cause a complete cessation of operations.' But this ignores the Commission's conclusion that carrier apprehensions of teamster reprisals were exaggerated and unwarranted. It further ignores the fact that, as the Commission was aware, the National Labor Relations Board had ordered the union to cease boycotting any of the stockholder carriers by appeals to the employees of any other carrier. International Brotherhood of Teamsters, Local 554, 116 N.L.R.B.1891. To be sure, the Board had not ordered the union not to make appeals directly to the trunkline carriers. The union was free to make such appeals, absent inducement of employees, and, as far as the labor laws and the collective agreement16 were concerned, the employer was free to reject or accede to such requests. But it was precisely at this point that the Sand Door case (Local 1976 v. Labor Board, 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186) recognized the power of the Commission to enter cease-and-desist orders against the carriers' violating the transportation law and their tariffs.17 Thus, as the appellant union argues,18 there was no reason to have assumed that the ordinary processes of the law19 were incapable of remedying the situation.20
19
But discussion of the effectiveness of cease-and-desist orders in terms of the June 1959 status of hot cargo arrangements is now largely academic: Congress added § 8(e) to the Act four months after the Commission's decision in this case and over a year before the District Court sustained the Commission. Under this section Congress declared it to 'be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void. * * *.' In the absence of authoritative judicial interpretation of § 8(e), however, the District Court was unwilling to attach any significance to the new law in the present case. In this the District Court erred. The plain words of the statute at the very least raised serious questions about the legality of direct union-employer agreements to boycott another employer. Not only would the delinquent interlining carriers in this case be subject to the injunctive and other processes of the National Labor Relations Board if their conduct violated s 8(e), but the unions themselves would be vulnerable21 and the pressures which generated the refusals to serve might well be effectively removed. These intervening facts so changed the complexion of the case that (even putting aside the considerations discussed above) the reviewing equity court, in the exercise of its sound discretion, should not have affirmed the order, as it did, but should have vacated it and remanded it to the Commission for further consideration in the light of the changed conditions. See Ford Motor Co. v. National Labor Relations Board, 305 U.S. 364, 373—374, 59 S.Ct. 301, 307, 83 L.Ed. 221; State of Mo. ex rel. Wabash R. Co. v. Public Serv. Comm'n, 273 U.S. 126, 130—131, 47 S.Ct. 311, 313, 71 L.Ed. 575; Gulf, C. & S.F.R. Co. v. Dennis, 224 U.S. 503, 506—509, 32 S.Ct. 542, 543—544, 56 L.Ed. 860.22
20
Finally, although we do not wish to fetter the Commission's expert, discretionary powers by specifically prescribing that cease-and-desist order relief be granted (if, indeed, any relief is still needed) rather than additional certification, nevertheless the Commission should be particularly careful in its choice of remedy, and should have been particularly careful, because of the possible effects of its decision on the functioning of the national labor relations policy. The Commission acts in a most delicate area here, because whatever it does affirmatively (whether it grants a certificate or enters a cease-and-desist order) may have important consequences upon the collective bargaining processes between the union and the employer. The policies of the Interstate Commerce Act and the labor act necessarily must be accommodated, one to the other. Writing before the 1959 amendments to the labor law, this Court Court said in the Sand Door case:
21
'But it is said that the Board is not enforcing the Interstate Commerce Act or interfering with the Commission's administration of that statute, but simply interpreting the prohibitions of its own statute in a way consistent with the carrier's obligations under the Interstate Commerce Act. Because of that Act a carrier cannot effectively consent not to handle the goods of a shipper. * * * But the fact that the carrier's consent is not effective to relieve him from certain obligations under the Interstate Commerce Act does not necessarily mean that it is ineffective for all purposes, nor should a determination under one statute be mechanically carried over in the interpretation of another statute involving singificantly different considerations and legislative purposes.' 357 U.S., at 110, 78 S.Ct., at 1021, 2 L.Ed.2d 1186.
22
The Court concluded that although 'common factors may emerge in the adjudication of these questions' under the two Acts by the two different agencies, nevertheless independent consideration and resolution were possible, the National Labor Relations Board directing itself to consideration of whether the employees violated their duties under § 8(b) and the Interstate Commerce Commission directing its attention to whether the carrier 'may have failed in his obligations under the Interstate Commerce Act.'
23
Implicit in this analysis is a recognition that if either agency is not careful it may trench upon the other's jurisdiction, and, because of lack of expert competence, contravene the national policy as to transportation or labor relations. In such a context, choice of the sweeping relief of certification rather than the more precise and narrowly drawn cease-and-desist order remedy was improvident, absent a compelling justification. And the fact that § 8(e) of the Act now exposes the employer as well as the union to Labor Board injunctive processes only underlines the necessity for careful analysis in fashioning a remedy to terminate unlawful action by delinquent carriers. This is not to say that circumstances can never permit the Commission to authorize additional service to remedy refusals to serve, but the Commission must act with a discriminating awareness of the consequences of its action. It has not done so here.
24
The judgment of the District Court is reversed. The case is remanded to it with instructions to enter an order enjoining, annulling, and setting aside the order of the Interstate Commerce Commission, and remanding the case to the Commission for further proceedings consistent with this opinion. It is so ordered.
25
Judgment reversed and case remanded with instructions.
26
Mr. Justice BLACK, concurring in part and dissenting in part.
27
I concur in the Court's judgment setting aside the Commission's order granting a permanent certificate to a new carrier to compete with existing carriers who but for temporary interruptions caused by lawful labor union activities would adequately meet the needs of commerce. I do not concur, however, in the remand to the Commission for further proceedings. Congress has vested power to regulate the employer-employee relationship in the National Labor Relations Board, not in the Interstate Commerce Commission, and I think the Commission's grant of a permanent certificate here, which stems wholly from temporary transportation delays owing to a labor dispute within the Labor Board's jurisdiction and which in effect punishes carriers for honoring their then lawful collective bargaining contracts, amounts to an impermissible encroachment on that Board's domain. We are not called upon at this time to decide whether the Commission is wholly without power under any and all circumstances to grant temporary relief from a temporary stoppage of commerce in order to remedy acute emergency situations such, for illustration, as a shortage of food or supplies urgently needed in particular localities. It will be time enough to decide what are the powers of the Commission to meet such situations when they arise; it is concluded that they are not presented in this case.
28
Since it is my view that under the facts here the Commission has no power to grant a permanent certificate to a competitor, I see no reason to direct that this matter be referred back to the Commission for further proceedings. Such a remand assumes that there is some further action by way of a cease-and-desist order the Commission can or should take. My view is that the facts in this record provide no possible basis for permitting the Commission to order the carriers to cease and desist from carrying out their agreement with the unions. Nothing in the Interstate Commerce Act gives the Commission power to prohibit carriers or unions under the circumstances shown by this record from doing that which the Labor Act permits them to do. Moreover, as the Court points out, four months after the Commission's order Congress outlawed the kind of conduct which here interfered with transportation. Since Congress has, by this enactment, so clearly taken this matter in hand in a way that does not rely for enforcement on the Interstate Commerce Commission, the old Commission proceedings have all the earmarks of mootness, whether technically moot or not. If the union or the truck lines should hereafter violate this new law the Labor Board, backed by the courts, is vested with ample power to force both carriers and unions to obey that law. The Interstate Commerce Commission has enough to do within its congressionally appointed field without stepping over into the field of labor regulation. The Commission should no more than a State* invade regulatory territory Congress has preempted for agencies of its own choice.
29
Mr. Justice CLARK, concurring in the result.
30
Four months after entry of the Commission's order Congress enacted § 8(e) as an amendment to the National Labor Relations Act, 29 U.S.C. (Supp. III) § 158(e), 29 U.S.C.A. § 158(e). Since the language of that section raised serious questions as to the legality of the unions' 'hot cargo' pressures, which in turn raised questions as to any continuation of the 'substantial disruption' in service, it appears to me that the District Court should have vacated the order and remanded the case to the Commission for reconsideration in light of the likelihood of changed circumstances. The grant of permanent certification to a new carrier in an area where there are existing certifications is a drastic remedy to which resort should not be made except in the most compelling circumstances.
31
For this reason I concur in the Court's reversal and remand to the District Court. In view of the lapse of time and the fact that the conduct which caused the disruption of service has been outlawed by Congress , however, it appears that the issue has been mooted, and the Commission may determine that further proceedings would serve no purpose.
32
Mr. Justice GOLDBERG, with whom THE CHIEF JUSTICE, Mr. Justice DOUGLAS, and Mr. Justice BRENNAN join, concurring.
33
I join in the opinion and add only a few words to state my conviction that the 'discriminating awareness of the consequences of its action' required of the Commission by the opinion, inevitably must lead, if any relief is now warranted (which I doubt), to a rejection of the remedy of additional certification in favor of an appropriately limited cease-and-desist order.
34
As the matter was presented to the Commission and to the District Court, the additional certification, as the facts here plainly demonstrate, involved the Commission in intervention in the underlying labor dispute to a degree unduly trenching upon the Labor Board's jurisdiction and the rights and duties of the affected parties. Most certainly after the 1959 amendments to the labor law, the Commission, had the case then been remanded to it by the District Court as it should have been, could have entered a cease-and-desist order under which no conflict could or would have arisen between the I.C.C. and the N.L.R.B. in the respective exercise of their powers and in the discharge of their responsibilities. Such a cease-and-desist order should have been appropriately limited to requiring the carriers to provide service in a manner and to the extent compatible with their labor agreements and with both the carriers' and the union's rights and duties under federal labor law. That such an order would have been sufficient in practical effect is demonstrated by the fact that both Burlington and Santa Fe, parties to the hot cargo agreements, were able to carry out their duties under the Motor Carrier Act without creating any serious problems under their union agreements or under the National Labor Relations Act. This being so in the absence of a cease-and-desist order, it is difficult to understand why entry of such an order against the carriers would have been ineffective.
1
The hot cargo clause provided, in pertinent part:
'It shall not be a violation of this Agreement and it shall not be cause for discharge if any employee or employees refuse to go through the picket line of a Union or refuse to handle unfair goods. Nor shall the exercise of any rights permitted by law be a violation of this Agreement. The Union and its members, individually and collectively, reserve the right to refuse to handle goods from or to any firm or truck which is engaged or involved in any controversy with this or any other Union; and reserve the right to refuse to accept freight from or to make pickups from, or deliveries to establishments where picket lines, strikes, walk-outs or lock-outs exist.
'The term 'unfair goods' as used in this Article includes, but is not limited to, any goods or equipment transported, interchanged, handled, or used by any carrier, whether party to this Agreement or not, at any of whose terminals or places of business there is a controversy between such carrier or its employees on the one hand, and a labor union on the other hand; and such goods or equipment shall continue to be 'unfair' while being transported, handled or used by interchanging or succeeding carriers, whether parties to this Agreement or not, until such controversy is settled.
'The insistence by any Employer that his employee(s) handle unfair goods or go through a picket line after they have elected not to, and if such refusal has been approved in writing by the responsible officials of the Central States Drivers Council, shall be sufficient cause for an immediate strike of all such Employer's operations without any need of the Union to go through the grievance procedure herein.'
2
The grant was limited to an Omaha-Chicago and Omaha-Kansas City-St. Louis route, for traffic originating in or destined to Nebraska points. 79 M.C.C., at 606, 614. No appellate review has been sought for the denial of the second application.
3
Apparently, in some instances it was necessary to handle interlined traffic by officials or supervisory personnel when employees refused to touch it. See R. 82.
4
See §§ 212(a) (revocation), 222(a) (fine), 222(b) (injunction). That the inadequacy in service involved here was first brought to the Commission's attention by appellee's application for a certificate in no way, of course, limited the agency's power to invoke §§ 204(c), 212, 222.
5
In this connection the Commission noted that it had refused a grant in a similar case decided concurrently with the present application (Galveston Truck Line Corporation Extension, 79 M.C.C. 619). The Commission stated that the circumstances there were different because the labor difficulties which had led to Commission issuance of a cease-and-desist order against carrier obedience to hot cargo clauses (Galveston Truck Line Corp. v. Ada Motor Lines, Inc., 73 M.C.C. 617; see note 17, infra) had 'ceased to exist for some time prior to the hearing, whereas in the instant proceeding such difficulties were of more recent origin and were continuing to be experienced up to and including the time of the hearing.' 79 M.C.C., at 613. But approximately 21 months intervened between the examiner's report and the Commission's order, and over two years between hearings and order. During at least 18 months of this time the case appears to have been argued to the Commission, remaining on the docket pending decision. See 73 M.C.C., at 617, n. 1.
6
Compare Duplex Printing Press Co. v. Deering, 254 U.S. 443, 471—472, 41 S.Ct. 172, 178—179, 65 L.Ed. 349. But see National Labor Relations Act, §§ 2(3), 9, 29 U.S.C.A. §§ 152(3), 159; Norris-La-Guardia Act, § 13(c), 29 U.S.C.A. § 113(c).
7
There were findings that secondary boycotts were imposed not only against the stockholder carriers but against certain shippers who were engaged in their own labor disputes.
8
The Commission adopted the statements of facts in both recommended reports. 79 M.C.C., at 605, 608.
9
R. 87—89, 95.
10
R. 54.
11
Ibid., R. 95.
12
R. 68—69.
13
And see Atchison, T. & S.F.R. Co. v. Reddish, 368 U.S. 81, 91, 82 S.Ct. 204, 210, 7 L.Ed.2d 147, where the Court rejected the argument that complaint proceedings must be resorted to before additional operating authority could be had to replace a common carrier service inadequate for the shippers' particularized physical or economic needs. This case, like the many cases appellees cite in which the Commission granted throughroute certification to overcome inadequacy of existing joint-line service (e.g., Penn Ohio New York Exp. Corp. Ext.—N.Y., 27 M.C.C. 269; Malone Freight Lines, Inc., Ext.—Textiles, 61 M.C.C. 501; Dallas & Mavis Fwdg. Co. Ext.—Mont., 64 M.C.C. 511; Braswell Ext. Calif., 68 M.C.C. 664; Kenosha Corp. Ext.—Kenosha, 72 M.C.C. 289), is clearly inapposite here, where there is nothing inherently wrong with the appellant carriers' service, either because of its particular nature or because of lack of capacity, infrequency of pickups, delays in delivery, or the like.
14
In this connection it should be noted that certification of Short Line would divert traffic both from delinquent trunkline carriers and from carriers who did not violate their duties by acceding to the secondary boycott, e.g., Burlington and Santa Fe. See 79 M.C.C., at 603.
15
Section 8(b), 5 U.S.C. § 1007(b), 5 U.S.C.A. § 1007(b), provides that all decisions shall 'include a statement of * * * findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented on the record.'
16
See note 1, supra, setting forth the relevant provisions, under which the employees reserved the right to refuse to handle hot cargo, but under which the employer was left to his own devices. Cf. note 3, supra.
17
The Court cited with approval the first Galveston case (Galveston Truck Line Corp. v. Ada Motor Lines, Inc., 73 M.C.C. 617), in which the Commission entered a cease-and-desist order against carrier obedience to hot cargo clauses. 357 U.S., at 109 110, 78 S.Ct., at 1021, 2 L.Ed.2d 1186.
18
The union contends in its brief and we agree that the § 212(a) complaint procedure, if followed by the stockholder carriers, 'would have provided a more adequate remedy' at the time the case was before the Commission in 1956—1959.
19
It is further contended, but we need not consider it here, that the efficacy of a cease-and-desist order is severely limited by the agency's self-imposed limitation against ordering carriers to cease from discriminatorily refusing to interline at joint rates. But cf. Dixie Carriers, Inc., v. United States, 351 U.S. 56, 76 S.Ct. 578, 100 L.Ed. 934; Interstate Commerce Comm'n v. Mechling, 330 U.S. 567, 67 S.Ct. 894, 91 L.Ed. 1102. The Commission did not find, nor could it have found on this record, that the protesting carriers were likely to refuse to interline with the stockholder carriers except at discriminatorily higher, combination rates.
20
We do not imply that service deficiencies of the kind found in this record could never justify the issuance of permanent operating authority. A totally different case might be presented if other remedial action by the Commission and the Board proved fruitless, hopelessly time-consuming, or otherwise inadequate to terminate the interruptions in service. Nor do we intend to pass upon the Commission's discretion under § 210a to provide temporary authority, pending determination of an application for authority or cease-and-desist order, or as an alternative to permanent authority to remedy service deficiencies of the kind present here. See Pan-Atlantic S.S. Corp. v. Atlantic Coast Line R. Co., 353 U.S. 436, 77 S.Ct. 999, 1 L.Ed.2d 963.
21
For the view of the National Labor Relations Board, see Amalgamated Lithographers of America (Ind.), 130 N.L.R.B. 985; Amalgamated Lithographers of America, 130 N.L.R.B. 968, aff'd, 301 F.2d 20 (C.A.5th Cir.); American Feed Co., 129 N.L.R.B. 321.
22
This was, of course, the District Court's, and not the Commission's, error.
*
Cf. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed. 775 (1959).
Although the effectiveness of the § 8(e) ban on 'hot cargo' clauses may have been subject to doubt when the District Court adjudicated this case, subsequent cases tend to remove any such doubt. See, e.g., National Labor Relations Board v. Local 294, International Brotherhood of Teamsters, 298 F.2d 105 (C.A.2d Cir., 1961).
| 89
|
371 U.S. 115
83 S.Ct. 217
9 L.Ed.2d 177
GILBERTVILLE TRUCKING CO., Inc., et al., Appellants,v.UNITED STATES et al.
No. 40.
Argued Oct. 15, 1962.
Decided Dec. 3, 1962.
Loyd M. Starrett, Boston, Mass., for appellants, pro hac vice by special leave of Court.
Lionel Kestenbaum, Washington, D.C., for appellees.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
This case concerns disapproval by the Interstate Commerce Commission of a proposed merger on the ground that 'control and management in a common interest' over the two applicant-carriers had been unlawfully effectuated prior to the merger application in violation of § 5(4) of the Interstate Commerce Act, as amended, 54 Stat. 907, 49 U.S.C. § 5(4), 49 U.S.C.A. § 5(4).1
2
The applicant-carriers are L. Nelson & Sons Transportation Co. and Gilbertville Trucking Co., both of whom are certificated by the Commission as common carrier motor carriers. The principal stockholders of Nelson Co. are two half brothers, Charles Chilberg and Clifford Nelson; Gilbertville Co. is wholly owned by a third brother, Kenneth Nelson.
3
The merger application was filed October 6, 1955, by the two carriers and their stockholders pursuant to § 5(2) of the Act. Two and a half months later the Commission initiated an investigation into the possibility of a § 5(4) violation pursuant to authority granted by § 5(7) of the Act. The two proceedings were consolidated for hearing. The trial examiner determined that § 5(4) was being violated, but recommended that the merger be approved on the ground that the violation was neither intentional nor flagrant. Division 4 affirmed the finding of a violation, but disapproved the merger, and ordered the violation terminated. 75 M.C.C. 45. On reconsideration, the full Commission affirmed the Division, but further ordered that Kenneth Nelson divest himself of Gilbertville Co. 80 M.C.C. 257. A suit before a three-judge United States District Court for the District of Massachusetts to enjoin and set aside the Commission's orders was dismissed on the ground that the orders were reasonable and supported by substantial evidence. D.C., 196 F.Supp. 351. An appeal was taken to this Court contesting (1) the finding of a § 5(4) violation, (2) the denial of the merger, and (3) the order of divestiture. We noted probable jurisdiction. 368 U.S. 983, 82 S.Ct. 597, 7 L.Ed.2d 522.
4
The factual issue in this case turns upon the development of family, management, and operational relationships between Nelson, Gilbertville, and a third carrier, R. A. Byrnes, Inc., which is owned by the principal stockholders of Nelson.
5
The Nelson transportation business was first organized in 1930 as a partnership. In 1947 it was incorporated as L. Nelson & Sons Transportation Co. and stock issued to Mrs. Nelson (formerly Mrs. Chilberg) and four of her seven children (including Kenneth Nelson, Clifford Nelson, and Charles Chilberg). Upon Mrs. Nelson's death in 1950, equal numbers of shares of her stock in Nelson Co. were devised to her seven children. In 1951, Kenneth Nelson sold his original shares received in 1947 to Charles Chilberg and Clifford Nelson, and agreed to sell to them the remainder to which he was entitled on distribution of the estate. The distribution and transfer were made on January 23, 1953. Since that date, Charles and Clifford have been the principal stockholders in Nelson Co. Charles is now president and treasurer; Clifford is secretary and assistant treasurer.
6
Upon the sale of his stock in 1951, Kenneth Nelson resigned as an officer and director of Nelson Co. However, he kept his office at Nelson Co. headquarters in Ellington, Connecticut, and was retained by the company as a 'free-lance tariff consultant.' In such capacity he was paid approximately $15,000 in 1952 and $13,000 in 1953. While he claims to have been an independent contractor, his only client was Nelson Co. In the third week of January 1953, Kenneth Nelson wrote to Nelson Co.'s accountant, Mr. Sanol Solomon, requesting advice on the acquisition of Gilbertville Trucking Co. Soon thereafter Kenneth began negotiations with Gilbertville's owner, and on March 3, 1953, took over control. Since July 1953, all the stock in Gilbertville has been controlled by Kenneth.
7
In April of 1954 Charles Chilberg and Clifford Nelson obtained temporary authority from the Commission to take over the operations of R. A. Byrnes, Inc.; their acquisition of Byrnes stock was approved in August 1956.
8
The routes of these three carriers form a cohesive network along the eastern seaboard from Massachusetts to the District of Columbia. Gilbertville is presently certificated by the Commission as a common carrier for general commodities over regular and irregular routes between points in Massachusetts, Connecticut, Rhode Island, and New York City. Byrnes is certificated as a common carrier for general commodities over irregular routes between New York City, Philadelphia, the District of Columbia, and points adjacent to these cities. It is also certificated as a contract carrier of canned goods in Masachusetts, Connecticut, and Rhode Island. Nelson is certificated as a common carrier for textile commodities over irregular routes between points in Massachusetts, New Hampshire, Rhode Island, Connecticut, and areas adjacent to New York and Philadelphia. It is also certificated for general commodities in intrastate traffic in Connecticut and Massachusetts. Thus, the Gilbertville and Byrnes general-commodity routes complement each other perfectly and overlap to a considerable degree the textile routes of Nelson.
9
Soon after his acquisition of Gilbertville, Kenneth Nelson instituted a number of permanent changes in the carrier's operations tending to integrate the terminal facilities of Nelson and Gilbertville; he received where necessary the cooperation of Nelson Co. Kenneth obtained permission from the Commission to move the business records and head offices of the acquired company from Gilbertville, Massachusetts, the place of incorporation, to Ellington, Connecticut, and took over the second floor of the nelson Co. office building. Where possible Gilbertville used the Nelson terminals, subletting from Nelson in Ellington, Connecticut; New York City; Newton, Massachusetts; and Woonsocket, Rhode Island. Its only other terminal was at Gilbertville, Massachusetts. In seven cities, Gilbertville and Nelson were listed under the same telephone number, and they shared interterminal telephone lines. Almost identical changes took place in 1954 upon Commission approval of Charles Chilberg and Clifford Nelson's acquisition of Byrnes. Byrnes' offices were moved from Mullica Hill, New Jersey, to the Nelson, Co. headquarters in Ellington, Connecticut; Byrnes shared the Nelson terminal in New York; it listed under the Nelson telephone number; it shared interterminal telephone lines. Since the Byrnes changes were the direct result of control and management in a common interest of Byrnes and Nelson in the hands of Charles and Clifford, it might be inferred that the Gilbertville changes were similarly indicative of control and management in a common interest of Nelson and Gilbertville.
10
Further substantiation of this terminal integration is provided by a fourth corporation, Bergson Company, a real estate corporation formed to receive the residual properties of Mrs. Linnea Nelson's estate. Bergson owns the terminals leased to Nelson Co. at Philadelphia, Ellington, Woonsocket, and Newton, three of which are sublet to Gilbertville. Since Bergson is owned in equal shares by all seven children, all of whom are directors, it provides a direct corporate tie-in between Kenneth Nelson and his brothers.
11
While it is not unusual for independent carriers to share terminal facilities, as indeed Gilbertville and Nelson do with unrelated carriers in New York and Woonsocket, the repetition of such practices throughout their respective systems makes their alleged independence suspect. When these practices are then supplemented by further day-to-day practices integrating business, equipment, and managerial policies, the Commission is justified in concluding the carriers are in fact being managed and controlled in a common interest. Such additional practices are readily found in the record of this case.
12
Most significant is the equipment interdependence between Nelson and Gilbertville. When acquired for $35,000 in 1953, Gilbertville had a deficit about equal to the purchase price, assets of only $69,000, and a 1953 operating revenue of only $75,000. By 1956 Kenneth Nelson had increased the operating revenue to a sevenmonth figure of $444,777. This impressive growth was made in the face of a continual short-term credit squeeze and lack of working capital and equipment. Nelson Co., however, was operating in a declining textile market in the Northeast with highly periodic demands for carriage. As a result, Nelson had a fluctuating overcapacity in equipment which was leased only to Gilbertville and occasionally Byrnes. Kenneth Nelson estimated that Gilbertville and from one to six tractor-trailer units on trip-lease from Nelson Co. every day and up to five other pieces of equipment on permanent lease, an amount equal at times to over onehalf of Gilbertville's own carriage capacity. Added to this equipment interdependence between Nelson and Gilbertville were certain interlining practices.2 Gilbertville interlined between 25% and 30% of its business. Over one-third of this interline business was with Nelson Co. and Byrnes, the majority being in truckload quantities. Owing to its equipment shortage, Gilbertville interlined with Nelson pursuant to a practice whereby a trip-lease was made out at the start of a run to take effect at the point of transfer to Gilbertville routes so that the Nelson tractor-trailer operated throughout the trip; moreover, the same driver might stay with the unit, changing employers at the point of transfer.3
13
Finally, the record includes evidence that on four occasions Commission employees discovered on highway spot checks that one of the carriers carried small shipments belonging to the other; that Nelson did about one-quarter of the Gilbertville repairs; and that Charles Chilberg and Kenneth Nelson each exercised managerial control over employees of both Nelson and Gilbertville.4
14
This evidence is sufficient to show that Nelson and Gilbertville were in fact being controlled and managed in a common interest to a considerable degree. If § 5(4) was intended by Congress to reach such de facto relationships, the Commission was warranted in concluding the section was being violated.
I.
15
Section 5(4) is part of a comprehensive legislative scheme designed to place ownership, management, and operational control over common carriers within the regulatory jurisdiction of the Commission. Simply, § 5(2)(a) gives the Commission power to authorize and approve the joint operation of properties belonging to two or more common carriers or the merger of such carriers; § 5(4) then declares,
16
'It shall be unlawful for any person, except as provided in paragraph (2), to enter into any transaction within the scope of subparagraph (a) thereof, or to accomplish or effectuate, or to participate in accomplishing or effectuating, the control or management in a common interest of any two or more carriers, however such result is attained, whether directly or indirectly, by use of common directors, officers, or stockholders, a holding or investment company or companies, a voting trust or trusts, or in any other manner whatsoever. * * * As used in this paragraph * * * the words 'control or management' shall be construed to include the power to exercise control or management.'
17
The complementary character of these two sections was discussed at some length in United States v. Marshall Transport Co., 322 U.S. 31, 64 S.Ct. 899, 88 L.Ed. 1110. As originally enacted in the Emergency Railroad Transportation Act of 1933, 48 Stat. 217, § 5(4) was applicable only to railroads; it was extended to cover motor carriers in the Transportation Act of 1940, 54 Stat. 905, 907—908. As the appellants correctly state, Congress, in passing § 5(4) and the supplementary § 5(5) and (6),5 was primarily concerned with reaching the elaborate corporate devices used to centralize control over the railroads 'without commission supervision and in defiance of the will of Congress.'6 Although Congress had intended the Transportation Act of 1920 to provide complete supervision, the Act proved inadequate to reach the holding company system.7 On the basis of this history, the appellants argue that § 5(4) is limited to proscription of corporate devices and will not reach the informal relationships shown on this record.
18
Such a narrow interpretation of the statute, however, confuses the particular manifestation of the problem with which Congress was faced in 1933 with the ultimate congressional intention of effectuating the Commission's jurisdiction under § 5(2). On its face, § 5(4) proscribes not just corporate and legal devices, but control effectuated 'in any other manner whatsoever.' Any doubt as to the scope of this phrase was removed when Congress added the definition of 'control' to § 1(3)(b) of the Act in the Transportation Act of 1940, 54 Stat. 899—900. This section states that for purposes of § 5 and other sections, 'control' 'shall be construed to include actual as well as legal control, whether maintained or exercised through or by reason of the method of or circumstances surrounding organization or operation * * *.' We have construed this language to encompass every type of control in fact and have left to the agency charged with enforcement the determination from the facts whether 'control' exists, subject to normal standards of review. Marshall Transport Co., supra, 322 U.S. p. 38, 64 S.Ct. p. 903; Alleghany Corp. v. Breswick & Co., 353 U.S. 151, 163—165; Rochester Telephone Corp. v. United States, 307 U.S. 125, 145—146, 59 S.Ct. 754, 764—765, 83 L.Ed. 1147. In this manner, the Commission may adapt § 5(4) to the actualities and current practices of the industry involved and apply it to the extent it feels necessary to protect its jurisdiction under § 5(2) without having to return to Congress for additional authority every time industry practices change.
19
A cursory glance at Commission experience shows the type of informal practices in the motor carrier industry which the Commission has decided are covered by § 5(4) and must first be approved under § 5(2). Typical of these practices have been attempts by active carriers to effectively lease the routes of a dormant carrier by interlining and tripleasing their equipment continuously over the dormant carrier's routes, e.g., Nigro Freight Lines, Inc.—Purchase—Coady Trucking Co., 90 M.C.C. 113; attempts by carriers to acquire other carriers by supplying funds to allegedly independent third-party purchasers, e.g., Black—Investigation of Control—Colony Motor Transportation, 75 M.C.C. 275; Coldway Food Express, Inc.—Control and Merger—Foodway Express, Inc., 87 M.C.C. 123; attempts by inactive owners to allow an employee of another carrier to manage and merge operations of the two carriers, e.g., Gate City Transport Co.—Control—Square Deal Cartage Co., 87 M.C.C. 591. In the present case, the trial examiner held that the facts in this record 'require a finding' of control and management in a common interest in violation of § 5(4). Division 4, after a similar review of the facts, concurred. On reconsideration, the full Commission affirmed the finding and conclusion of the examiner and Division 4. Judicial review of this conclusion is limtied to consideration of whether it has a rational basis and is supported by substantial evidence. United States v. Pierce Auto Lines, Inc., 327 U.S. 515, 66 S.Ct. 687, 90 L.Ed. 821; Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 286 287,8 54 S.Ct. 692, 693—694, 78 L.Ed. 1260. After our review of the facts and statutory sections involved, we detect no reason to disturb this finding.9
II.
20
However, even admitting a § 5(4) violation, the appellants protest as arbitrary the denial of their application for approval of the proposed merger of Nelson and Gilbertville. Section 5(2) provides that a transaction within its scope is to be approved if found to be 'consistent with the public interest.' The statute entrusts the Commission with the duty to decide what considerations other than those specifically mentioned in § 5(2)(c) shall be given weight. Cf. McLean Trucking Co. v. United States, 321 U.S. 67, 86—88, 64 S.Ct. 370, 380—381, 88 L.Ed. 544; Schwabacher v. United States, 334 U.S. 182, 193, 68 S.Ct. 958, 92 L.Ed. 1305. As in the case of an original application for a certificate, the Commission has chosen to give weight to an applicant's fitness. E.G., Transamerican Freight Lines, Inc. Control and Merger—The Cumberland Motor Express Corp., 75 M.C.C. 423, 428; cf. Interstate Commerce Act, § 207, 49 Stat. 551, 49 U.S.C. § 307, 49 U.S.C.A. § 307. Integral to a determination of fitness is the applicant's willingness and ability to fulfill its obligations to the Commission, considerations which may be demonstrated in part by past or continuing violations of Commission regulations. E.g., Powell—Purchase—Rampy, 57 M.C.C. 597. This has not been contested by the appellants, and its relevance to a finding of consistency with the public interest is selfevident. Nor do they dispute the principle recently stated by the Commission in Central of Georgia R. Co. Control, 307 I.C.C. 39, 43, that a § 5(4) violation may alone bar approval of a merger unless, 'upon consideration of all the facts, it clearly appears that the public interest will be served best by such approval.' Rather, they contend that in this case the Commission refused to consider all the facts presented and, in effect, made a § 5(4) violation an automatic bar to approval of a subsequent merger. To support this allegation, the appellants point to the undisputed findings of the trial examiner that the violation in this case was neither willful, flagrant, nor the result of persistent disregard for regulation. They compare these findings with past Commission holdings that violations will be overlooked in the absence of willfulness, e.g., Gate City Transport Co.—Control—Square Deal Cartage Co., supra, and conclude that the rule applied in the present case must have been automatic.
21
However, even an automatic rule is not necessarily arbitrary. As already noted, § 5(4) is intergral to the success of the regulatory scheme. To approve a merger in the face of a § 5(4) violation may encourage others whose merger may or may not be consistent with the public interest to either present the Commission with a fait accompli or avoid its jurisdiction altogether. As the Commission pointed out in Central of Georgia, if such practices were encouraged, 'our administration of the statute in the public interest would be seriously hindered, if not defeated.' 307 I.C.C., at 44. This additional interest in the proper administration of the statute places upon the applicant a heavier burden than may be the case for other regulatory violations, and mere lack of willfulness or alleged innocence need not suffice.
22
In fact, the Commission's rule is not automatic and will give way to a clear showing of public interest in approval. However, the appellants cannot attack the Commission's order under even this less stringent rule since they made no clear showing of a public interest in approval such as a public need for the merged service or for larger consolidated carriers. The order denying the merger is therefore affirmed.
III.
23
The Commission's final order requires Kenneth Nelson to divest himself of his stock in Gilbertville Co. in order to terminate the § 5(4) violation. No other reference to divestiture can be found. In view of his recommendation that the merger be approved, the trial examiner made no findings or recommendations on a remedy for the violation. Division 4, upon denial of the merger, simply ordered that each of the applicants is hereby 'required to terminate the violation.' On reconsideration, the full Commission reinstated Division 4's order, but added, without explanation in its report, the order to divest. The District Court attempted to provide the rationale by suggesting that divestiture was so perfectly suited to the nature of the violation, an unlawful acquisition, that no explanation was necessary.
24
There is little question that divestiture is within the scope of the Commission's power since, with respect to a § 5(4) violation, it may order any party to 'take such action as may be necessary, in the opinion of the Commission, to prevent continuance of such violation.' § 5(7). Where the unlawful control is the result of an acquisition, divestiture may be the only effective remedy. However, as § 5(7) itself implies, the Commission's power is corrective, not punitive. The justification for the remedy is the removal of the violation.
25
The use of equitable powers to expunge a statutory violation has been fully developed in the context of the antitrust laws and is, in many respects, applicable to § 5(7). The 'most drastic, but most effective' of these remedies is divestiture. And '(i)f the Court concludes that other measures will not be effective to redress a violation, and that complete divestiture is a necessary element of effctive relief, the Government cannot be denied the latter remedy because economic hardship, however severe, may result.' United States v. E. I. duPont de Nemours & Co., 366 U.S. 316, 326—327, 81 S.Ct. 1243, 1250, 6 L.Ed.2d 318. Our duty is to give 'complete and efficacious effect to the prohibitions of the statute' with as little injury as possible to the interests of private parties or the general public. United States v. American Tobacco Co., 221 U.S. 106, 185, 31 S.Ct. 632, 650, 55 L.Ed. 663. As these cases indicate, the choice of remedy is as important a decision as the initial construction of the statute and finding of a violation. The court or agency charged with this choice has a heavy responsibility to tailor the remedy to the particular facts of each case so as to best effectuate the remedial objectives just described. Cf. Hecht Co. v. Bowles, 321 U.S. 321, 329—331, 64 S.Ct. 587, 591—592, 88 L.Ed. 754.
26
As § 5(7) expressly states, the Commission is charged with choosing the proper remedy in this case. Judicial review is accordingly limited. 'It extends no further than to ascertain whether the Commission made an allowable judgment in its choice of the remedy.' Jacob Siegel Co. v. Federal Trade Comm'n, 327 U.S. 608, 612, 66 S.Ct. 758, 760, 90 L.Ed. 888. But prerequisite to such review is evidence that a judgment was in fact made, that the parties were heard on the issue, that the proper standards were applied. We find no such evidence in this record. Rather we are faced with evidence that the statutory violation occurred not just from Kenneth Nelson's act of acquiring Gilbertville, but from the acquisition plus subsequent practices integrating the management and operations of Nelson and Gilbertville, practices that could conceivable be discontinued without divestiture. In addition the trial examiner found that the violation was not willful and that the parties' experience in this proceeding would make them more responsive to regulation in the future.
27
By referring to these mitigating considerations, we have no intention of prejudging the Commission or implying that divestiture would be unwarranted after proper treatment of the issue. These considerations merely indicate that a doubt can be raised and that a remand to the Commission is not purely academic for the sake of procedural regularity. When the Commission has exercised its judgment and issued its considered opinion, the propriety of the remedy chosen will be ripe for review. Jacob Siegel Co. v. Federal Trade Comm'n, supra; Administrative Procedure Act, § 8(b), 60 Stat. 242, 5 U.S.C. § 1007(b), 5 U.S.C.A. § 1007(b).
28
The judgment of the District Court is reversed in part and the case remanded for further proceedings in conformity with this opinion.
29
It is so ordered.
30
Reversed in part and remanded.
1
The Interstate Commerce Act, 49 U.S.C. § 1 et seq., 49 U.S.C.A. § 1 et seq., is hereinafter referred to as 'the Act' or by the section number alone.
2
'Interlining' is the practice whereby a carrier, whose certificated routes do not reach the shipment destination, transfers the shipment to another carrier for delivery. 'Interchanging' is a form of interlining whereby the two interlining carriers switch trailers at the point of transfer. An interchange is most common where the shipment involves a truckload quantity, and the exchange of trailers obviates the necessity of unloading the shipment from the trailer of the transferor and loading it on the trailer of the transferee. The trailer taken in exchange for the shipment-trailer may be either empty or loaded with an interline shipment in the other direction. A further form of interlining involves the use of a trip-lease for the transferee's leg of the journey. There the shipment-trailer is taken by the transferee, but no trailer is given in exchange; instead the transferor will lease the shipment-trailer to the transferee for the completion of the trip.
3
Commission employee Edward D. Sheatestified that Gilbertville's terminal manager, John Kashady, had informed him that both these practices were regularly employed. Gilbertville records also indicate that Gilbertville lists the names of all Nelson drivers and keeps their doctor's certificates on file. Other records indicate that Nelson drivers are often hired by Gilbertville during the same week and sometimes on the same day. The triplease arrangement is also supported by the fact that the majority of Nelson-Gilbertville interlining is at Monson, Connecticut, where Gilbertville Co. keeps only an open lot and, when possible, an empty, unguarded trailer for the receipt of less-than-truckload shipments. Kenneth Nelson's testimony on these practices is ambiguous but, if anything, supports their occurrence.
4
Edward D. Shea testified that he observed Charles Chilberg hire and dispatch a Gilbertville driver at Newton.
He also testified that he observed Kenneth Nelson receive a teletype message in the Nelson Co. offices in Ellington, Connecticut, and direct Nelson Co. employees. The incident is disputed on the ground that Shea did not hear all the remarks made. On the other hand, it is to be noted that Kenneth Nelson refused to turn over upon request the teletype message he received on that occasion, an action in violation of Commission regulations.
5
Section 5(4) is supplemented by § 5(5) and (6) to cover specific instances where control over another carrier is accomplished with the aid of an intermediary. Section 5(5) provides in part that control or management in a common interest is conclusively presumed whenever a person 'affiliated' with a carrier joins with that carrier to acquire, or on his own acquires. control over another carrier. Section 5(6) then provides that:
'For the purposes of this section a person shall be held to be affiliated with a carrier if, by reason of the relationship of such person to such carrier * * *, it is reasonable to believe that the affairs of any carrier of which control may be acquired by such person will be managed in the interest of such other carrier.'
Parenthetically, § 5(6) states that the relationship may be shown 'by reason of the method of, or circumstances surrounding organization or operation * * *.'
6
The Committee reports on these sections prior to their passage in the Emergency Railroad Transportation Act of 1933 stated their purpose as follows:
'These paragraphs have been planned in the light of what has already been done through myriad devices without commission supervision and in defiance of the will of Congress * * *. The provisions of paragraph ((4)) * * * would be of little effect unless the language contained therein were construed to include control or management effectuated or exercised indirectly through the use of legal devices such as holding companies, voting trusts, and combinations of affiliated interests. It is therefore intended by the provisions of paragraphs ((5)), ((6)) * * * to make sure that paragraph ((4)) * * * covers such types of control and management.' S.Rep.No.87, 73d Cong., 1st Sess., pp. 9—10; H.R.Rep.No. 193, 73d Cong., 1st Sess., pp. 16—17.
The House manager of the bill similarly observed, 77 Cong.Rec. 4857:
'The important point is that unifications and groupings of railroads have been accomplished entirely without supervision by the Commission and without any opportunity to consider the question of public interest * * *. It is to correct this condition, and to prevent through the use of holding companies and other devices the defeat of the congressional will, that this bill has been drawn.'
Concrete examples of the devices Congress intended to reach are found in the testimony of Committee counsel Mr. Walter Splawn and Interstate Commerce Commissioner Joseph Eastman during the Hearings on H.R. 9059 before the House Committee on Interstate and Foreign Commerce, 72d Cong., 1st Sess., at 21—25, 34, 48—50, 61, 69—74 (1932).
7
Hearings, op. cit., supra, note 6, pp. 16—19, 24—26; H.R.Rep.No.650, 66th Cong., 2d Sess., pp. 63—64 (1920).
8
In Rochester Telephone Corp. v. United States, supra, 307 U.S. pp. 145—146, 59 S.Ct. p. 764, this Court gave the following test for reviewing a similar finding of 'control' by the Federal Communications Commission as that word is used in the Federal Communications Act, 48 Stat. 1064, 47 U.S.C. § 152(b), 47 U.S.C.A. § 152(b): 'This is an issue of fact to be determined by the special circumstances of each case. So long as there is warrant in the record for the judgment of the expert body it must stand.'
9
In view of the direct finding of a § 5(4) violation by the Commission and our determination that such a finding was warranted by the statute and evidence, we find it unnecessary to consider the Commission's alternative holding that Kenneth Nelson was 'affiliated' with Nelson within the meaning of § 5(6) and is therefore presumed to have effectuated control or management in a common interest pursuant to § 5(5) when he acquired Gilbertville.
The appellants attack the opinion of the District Court on the ground that there are variations between its statement of facts and the findings of the Commission. Such variations are insignificant in light of the fact that the court then quotes the findings of the Commission giving record citations for each statement. The appellants also contend that when the District Court found certain of the Commission's findings to be 'trivial' and 'irrelevant,' it should have remanded for further findings. However, as the court itself pointed out, its disagreements with the Commission were minor and did not affect the substance of the Commission's ultimate finding of a violation. Cf. Communist Party of U.S. v. Subversive Activities Control Board, 367 U.S. 1, 67, 81 S.Ct. 1357, 1395, 6 L.Ed.2d 625.
| 78
|
371 U.S. 195
83 S.Ct. 267
9 L.Ed.2d 246
Doyle SMITH, Petitioner,v.EVENING NEWS ASSOCIATION.
No. 13.
Argued Oct. 10, 1962.
Decided Dec. 10, 1962.
Thomas E. Harris, Washington, D.C., for petitioner.
Philip T. Van Zile, II, Detroit, Mich., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
Petitioner is a building maintenance employee of respondent Evening News Association, a newspaper publisher engaged in interstate commerce, and is a member of the Newspaper Guild of Detroit, a labor organization having a collective bargaining contract with respondent. Petitioner, individually and as assignee of 49 other similar employees who were also Guild members, sued respondent for breach of contract in the Circuit Court of Wayne County, Michigan.1 The complaint stated that in December 1955 and January 1956 other employees of respondent, belonging to another union, were on strike and respondent die not permit petitioner and his assignors to report to their regular shifts, although they were ready, able and available for work.2 During the same period, however, employees of the editorial, advertising and business departments, not covered by collective bargaining agreements, were permitted to report for work and were paid full wages even though there was no work available. Respondent's refusal to pay full wages to petitioner and his assignors while paying the nonunion employees, the complaint asserted, violated a clause in the contract providing that 'there shall be no discrimination against any employee because of his membership or activity in the Guild.'
2
The trial court sustained respondent's motion to dismiss for want of jurisdiction on the ground that the allegations, if true, would make out an unfair labor practice under the National Labor Relations Act and hence the subject matter was within the exclusive jurisdiction of the National Labor Relations Board. The Michigan Supreme Court affirmed, 362 Mich. 350, 106 N.W.2d 785, relying upon San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, and like pre-emption cases.3 Certiorari was granted, 369 U.S. 827, 82 S.Ct. 843, 7 L.Ed.2d 793, after the decisions of this Court in Local 174, Teamsters, etc. v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593, and Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483.
3
Lucas Flour and Dowd Box, as well as the later Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462, were suits upon collective bargaining contracts brought or held to arise under § 301 of the Labor Management Relations Act4 and in these cases the jurisdiction of the courts was sustained although it was seriously urged that the conduct involved was arguably protected or prohibited by the National Labor Relations Act and therefore within the exclusive jurisdiction of the National Labor Relations Board. In Lucas Flour as well as in Atkinson the Court expressly refused to apply the pre-emption doctrine of the Garmon case; and we likewise reject that doctrine here where the alleged conduct of the employer, not only arguably, but concededly, is an unfair labor practice within the jurisdiction of the National Labor Relations Board.5 The authority of the Board to deal with an unfair labor practice which also violates a collective bargaining contract is not displaced by § 301, but it is not exclusive and does not destroy the jurisdiction of the courts in suits under § 301. If, as respondent strongly urges, there are situations in which serious problems will arise from both the courts and the Board having jurisdiction over acts which amount to an unfair labor practice, we shall face those cases when they arise. This is not one of them, in our view, and the National Labor Relations Board is in accord.6
4
We are left with respondent's claim that the predicate for escaping the Garmon rule is not present here because this action by an employee to collect wages in the form of damages is not among those 'suits for violation of contracts between an employer and a labor organization * * *,' as provided in § 301. There is support for respondent's position in decisions of the Courts of Appeals,7 and in Association of Westinghouse Salaried Employees v. Westinghouse Corp., 348 U.S. 437, 75 S.Ct. 489, 99 L.Ed. 510, a majority of the Court in three separate opinions concluded that § 301 did not give the federal courts jurisdiction over a suit brought by a union to enforce employee rights which were variously characterized as 'peculiar in the individual benefit which is their subject matter', 'uniquely personal' and arising 'from separate hiring contracts between the employer and each employee.' Id., at 460, 461, 464, 75 S.Ct., at 500, 503.
5
However, subsequent decisions here have removed the underpinnings of Westinghouse and its holding is no longer authoritative as a precedent. Three of the Justices in that case were driven to their conclusion because in their view § 301 was procedural only, not substantive, and therefore grave constitutional questions would be raised if § 301 was held to extend to the controversy there involved.8 However, the same three Justices observed that if, contrary to their belief, 'Congress has itself defined the law or authorized the federal courts to fashion the judicial rules governing this question, it would be self-defeating to limit the scope of the power of the federal courts to less than is necessary to accomplish this congressional aim.' Id., at 442, 75 S.Ct., at 491. Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, of course, has long since settled that § 301 has substantive content and that Congress has directed the courts to formulate and apply federal law to suits for violation of collective bargaining contracts. There is no constitutional difficulty and § 301 is not to be given a narrow reading. Id., at 456, 457, 77 S.Ct., at 918. Section 301 has been applied to suits to compel arbitration of such individual grievances as rates of pay, hours of work and wrongful discharge, Textile Workers Union of America v. Lincoln Mills, supra; General Electric Co. v. Local 205, UEF, 353 U.S. 547, 77 S.Ct. 921, 1 L.Ed.2d 1028; to obtain specific enforcement of an arbitrator's award ordering reinstatement and back pay to individual employees, United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424; to recover wage increases in a contest over the validity of the collective bargaining contract, Charles Dowd Box Co. v. Courtney, supra; and to suits against individual union members for violation of a no-strike clause contained in a collective bargaining agreement. Atkinson v. Sinclair Refining Co., supra.
6
The concept that all suits to vindicate individual employee rights arising from a collective bargaining contract should be excluded from the coverage of § 301 has thus not survived. The rights of individual employees concerning rates of pay and conditions of employment are a major focus of the negotiation and administration of collective bargaining contracts. Individual claims lie at the heart of the grievance and arbitration machinery, are to a large degree inevitably intertwined with union interests and many times precipitate grave questions concerning the interpretation and enforceability of the collective bargaining contract on which they are based. To exclude these claims from the ambit of § 301 would stultify the congressional policy of having the administration of collective bargaining contracts accomplished under a uniform body of federal substantive law. This we are unwilling to do.
7
The same considerations foreclose respondent's reading of § 301 to exclude all suits brought by employees instead of unions. The word 'between,' it suggests, refers to 'suits,' not 'contracts,' and therefore only suits between unions and employers are within the purview of § 301. According to this view, suits by employees for breach of a collective bargaining contract would not arise under § 301 and would be governed by state law, if not preempted by Garmon, as this one would be, whereas a suit by a union for the same breach of the same contract would be a § 301 suit ruled by federal law. Neither the language and structure of § 301 nor its legislative history requires or persuasively supports this restrictive interpretation, which would frustrate rather than serve the congressional policy expressed in that section. '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.' Local 174, Teamsters, etc. v. Lucas Flour Co., supra, 369 U.S. at 103, 82 S.Ct. at 577.
8
We conclude that petitioner's action arises under § 301 and is not pre-empted under the Garmon rule.9 The judgment of the Supreme Court of Michigan is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
9
Reversed and remanded.
10
Mr. Justice BLACK, dissenting.
11
I would affirm the Michigan Supreme Court's holding that Michigan courts are without jurisdiction to entertain suits by employees against their employers for damages measured by 'back pay' based on discrimination, which discrimination § 8(a) of the National Labor Relations Act makes an unfair labor practice and which § 10(b) and (c) subject to the jurisdiction of the Labor Board with power after hearings to award 'back pay.' It is true that there have been expressions in recent cases which indicate that a suit for the violation of a collective bargaining contract may be brought in a state or federal court even though the conduct objected to was also arguably an unfair labor practice within the Labor Board's jurisdiction.1 It seems clear to me that these expressions of opinion were not necessary to the decisions in those cases2 and that neither these prior decisions nor § 301 of the Labor Management Relations Act requires us to hold that either employers or unions can be made to defend themselves against governmental regulation and sanctions of the same type for the same conduct by both courts and the Labor Board. Such duplication of governmental supervision over industrial relationships is bound to create the same undesirable confusion, conflicts, and burdensome proceedings that the National Labor Relations Act was designed to prevent, as we have interpreted that Act in prior cases like San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).
12
One example is enough to show how Congress' policy of confining controversies over unfair labor practices to the Labor Board might well be frustrated by permitting unfair labor practice claimants to choose whether they will seek relief in the courts or before the Board. Section 10(b) of the Act 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 * * *.' In contrast, the statute of limitations in Michigan governing breach of contract suits like this is six years.3 The Court's holding thus opens up a way to defeat the congressional plan, adopted over vigorous minority objection, to expedite industrial peace by requiring that both the complaining party and the Board act promptly in the initiation of unfair labor practice proceedings.4 Instead, by permitting suits like this one to be filed, it is now not only possible but highly probable that unfair labor practice disputes will hang on like festering sores that grow worse and worse with the years.5 Of course this Court could later, by another major statutory surgical operation, apply the six-months Labor Board statute of limitations to actions for breach of collective bargaining contracts under § 301. But if such drastic changes are to be wrought in the Act that Congress passed, it seems important to me that this Court should wait for Congress to perform that operation.
13
There is another reason why I cannot agree with the Court's disposition of this case. In the last note on the last page of its opinion, the Court says:
14
'The only part of the collective bargaining contract set out in this record is the no-discrimination clause. Respondent does not argue here and we need not consider the question of federal law of whether petitioner, under this contract, has standing to sue for breach of the no-discrimination clause nor do we deal with the standing of other employees to sue upon other clauses in other contracts.' Unless my reading of this note is wrong, the Court purports to reserve the question of whether an employee who has suffered the kind of damages here alleged arising from breach of a collective bargaining agreement can file a lawsuit for himself under § 301. Earlier in its opinion the Court decides that a claim for individual wages or back pay is within the subject-matter jurisdiction of courts under § 301, that is, that such a claim is of the type that the courts are empowered to determine. The Court then rejects respondent's argument that an individual employee can never under any circumstances bring a § 301 suit. But it seems to me that the Court studiously refrains from saying when, for what kinds of breach, or under what circumstances an individual employee can bring a § 301 action and when he must step aside for the union to prosecute his claim. Nor does the Court decide whether the suit brought in this case is one of the types which an individual can bring. This puzzles me. This Court usually refrains from deciding important questions of federal law such as are involved in this case without first satisfying itself that the party raising those questions is entitled (has standing) to prosecute the case. It seems to me to be at least a slight deviation from the Court's normal practice to determine the law that would be applicable in a particular lawsuit while leaving open the question of whether such a lawsuit has even been brought in the particular case the court is deciding. This Court has not heretofore thought itself authorized to render advisory opinions. Moreover, I am wholly unable to agree that the right of these individuals to bring this lawsuit under § 301 was not argued here.
15
Finally, since the Court is deciding that this type of action can be brought to vindicate workers' rights, I think it should also decide clearly and unequivocally whether an employee injured by the discrimination of either his employer or his union can file and prosecute his own lawsuit in his own way. I cannot believe that Congress intended by the National Labor Relations Act either as originally passed or as amended by § 301 to take away rights to sue which individuals have freely exercised in this country at least since the concept of due process of law became recognized as a guiding principle in our jurisprudence. And surely the Labor Act was not intended to relegate workers with lawsuits to the status of words either of companies or of unions.
1
There was no grievance arbitration procedure in this contract which had to be exhausted before recourse could be had to the courts. Compare Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462; Drake Bakeries Inc. v. Local 50, American Bakery Workers, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474.
2
A small number of these employees were permitted to do some work during the strike.
3
Garner v. Teamsters, etc. Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228; Weber v. Anheuser Busch, 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546.
4
'Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, 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.' Labor Management Relations Act, § 301(a), 29 U.S.C. § 185(a), 29 U.S.C.A. § 185(a).
5
'It shall be an unfair labor practice for an employer * * * by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * * *.' National Labor Relations Act, § 8(a)(3), 29 U.S.C. § 158(a)(3), 29 U.S.C.A. § 158(a)(3). An unfair labor practice charge could have been filed under § 10, but that remedy was not pursued and the present proceeding was commenced after the six-month limitation period prescribed in § 10(b) had expired.
6
The view of the National Labor Relations Board, made known to this Court in an amicus curiae brief filed by the Solicitor General, is that ousting the courts of jurisdiction under § 301 in this case would not only fail to promote, but would actually obstruct, the purposes of the Labor Management Relations Act.
The Board has, on prior occasions, declined to exercise its jurisdiction to deal with unfair labor practices in circumstances where, in its judgment, federal labor policy would best be served by leaving the parties to other processes of the law. See, e.g., Consolidated Aircraft Corp., 47 N.L.R.B. 694; Spielberg Mfg. Co., 112 N.L.R.B. 1080.
7
E.g., Local Lodge 2040, I.A.M. AFL—CIO v. Servel, Inc., 268 F.2d 692 (C.A.7th Cir.); Copra v. Suro, 236 F.2d 107 (C.A.1st Cir.); United Protective Workers v. Ford Motor Co., 194 F.2d 997 (C.A.7th Cir.). See also Dimeco v. Fisher, 185 F.Supp. 213 (D.N.J.) and cases cited therein.
8
Two other Justices, in a separate opinion, concluded that under § 301 a union as a party plaintiff may not enforce the wage claims of individual employees.
9
The only part of the collective bargaining contract set out in this record is the no-discrimination clause. Respondent does not argue here and we need not consider the question of federal law of whether petitioner, under this contract, has standing to sue for breach of the no-discrimination clause nor do we deal with the standing of other employees to sue upon other clauses in other contracts.
1
Atkinson v. Sinclair Rfg. Co., 370 U.S. 238, 245, n. 5, 82 S.Ct. 1318, 1323, 8 L.Ed.2d 462 (1962); Local 174, Teamsters Union, etc. v. Lucas Flour Co., 369 U.S. 95, 101, n. 9, 82 S.Ct. 571, 575, 7 L.Ed.2d 593 (1962); Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 513, 82 S.Ct. 519, 525, 526, 7 L.Ed.2d 483 (1962).
2
Atkinson v. Sinclair Rfg. Co., supra, note 1, involved a strike by union members over pay claims, in violation of an agreement to arbitrate grievances. Local 174, Teamsters Union v. Lucas Flour Co., supra, note 1, concerned a strike by the union over the discharge of an employee, in violation of an agreement to arbitrate such disputes. Dowd Box Co. v. Courtney, supra, note 1, was an action by union officers against a company for failure to put into effect pay increases and vacation benefits provided in a collective bargaining agreement. In my view, none of the activities in any of these cases were even arguably unfair labor practices subject to the Labor Board's jurisdiction, and the Court did not suggest that they were.
3
Mich.Comp.Laws, 1948, § 609.13.
4
Compare H.R.Rep. No. 245, 80th Cong., 1st Sess. 40 (1947) (majority view), with id., at 90 (minority view).
5
The Government suggests that these years be further extended by requiring that, when cases are brought in a court, questions within the Labor Board's competence shall be referred to the Board. Dividing into two what should be a single proceeding will result in a shuttling operation which prior experience shows might not be settled for a decade. See, e.g., the protracted litigation which was finally concluded in El Dorado Oil Works v. United States, 328 U.S. 12, 66 S.Ct. 843, 90 L.Ed. 1053 (1946).
| 910
|
371 U.S. 187
83 S.Ct. 273
9 L.Ed.2d 240
Barbara D. FORD, Petitioner,v.Herman A. FORD.
No. 63.
Argued Nov. 15, 1962.
Decided Dec. 10, 1962.
W. Francis Marion, Greenville, S.C., for petitioner.
Wesley M. Walker, Greenville, S.C., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
This is a controversy between a husband and wife over the custody of their three young children which raises questions under the Full Faith and Credit Clause of the United States Constitution.1 Their first litigation was in 1959 when the husband filed in the Richmond Virginia Law and Equity Court a petition for habeas corpus alleging that the wife had the children but was not a suitable person to keep them and asking that they be produced before the court and custody awarded to him. The wife promptly answered, alleging that she was the proper person to have custody of the children and asking that the writ be dismissed. Thereafter negotiations took place between the parents, both being represented by counsel, and they agreed that the husband was, with minor exceptions, to have custody of the children during the school year and the wife was to have custody during summer vacation and other holidays. When notified of this agreement, the Richmond court entered the following order:
2
'It being represented to the court by counsel that the parties hereto have agreed concerning the custody of the infant children, it is ordered that this case be dismissed.'
3
Some nine months later, August 10, 1960, while the three children were with their mother in Greenville, South Carolina, she began this suit for full custody in the Greenville County Juvenile and Domestic Relations Court, again alleging that she was the proper person to have custody and that the husband was not. Service was had upon the husband, who answered, charging that for reasons set out the mother was not fit to have custody of the children and asserting that he was. He also set up as a defense that
4
'* * * Plaintiff has violated and breached the agreement made between the parties by and with their respective legal counsel and further violated the Order of the Court of record in Richmond, Virginia that was duly issued and based upon said agreement.'
5
After hearing testimony from 11 witnesses including the husband and wife, the trial judge found as a fact that while both the father and mother were fit persons to have the children, it was 'to the best interest of the children that the mother have custody and control.' The judge also rejected the husband's argument that the order of dismissal in the Virginia court should be treated as res judicata of the issue of fitness before the South Carolina court.
6
On appeal the Court of Common Pleas, like the judge of the juvenile court, held that under the law of South Carolina the interests of the children were 'paramount' and that it was their welfare which had to be protected. It decided that, while both parents would be suitable custodians, the best interests of the children required that the wife have custody during the school months and the husband during the other parts of the year, in effect inverting the arrangement previously made in the parents' agreement. In rejecting the husband's contention that South Carolina courts should be bound by the dismissal of the habeas corpus proceedings in Virginia which was based on the parents' agreement, the court said:
7
'To hold that the custody of these three children was fully and finally determined in Richmond, Virginia, by the agreement reached between the plaintiff's attorneys and the defendant's attorneys would be unfair to the children and too harsh a rule to follow.'
8
On appeal the Supreme Court of South Carolina reversed. 239 S.C. 305, 123 S.Ed.2d 33 (1961). That court, after a review of certain Virginia cases, said:
9
'If the respondent (the wife) here had instituted in the Courts of Virginia the action commenced by her in the Courts of this State, the appellant could have successfully interposed a plea of res judicata as a defense to said action. Since the judgment entered in the Virginia Court by agreement or consent is res judicata in that State, it is res judicata and entitled to full faith and credit in this State. We are required under Art. IV, Sec. 1 of the Constitution of the United States to give the same faith and credit in this State to the 'dismissed agreed' order or judgment as 'by law or usage' the Courts of Virginia would give to such order or judgment.' 239 S.C., at 317, 123 S.E.2d, at 39.
10
We granted certiorari to consider this question of full faith and credit upon which the South Carolina Supreme Court's judgment rests. 369 U.S. 801, 82 S.Ct. 642, 71 L.Ed.2d 549 (1962).
11
The husband has argued that we need not reach the full faith and credit question because the State Supreme Court rested its decision on South Carolina law rather than on the Full Faith and Credit Clause of the Federal Constitution. This argument is based on language in the closing part of the court's opinion, where it was said that 'A judicial award of the custody of a child is never final' and that a South Carolina court may 'even on its own motion' reconsider the custody of a child if new facts and circumstances make it necessary or desirable for the child's welfare to do so. The court concluded, however, that it found in the pleadings and the record 'neither allegation nor proof of any changed circumstances authorizing a change of the custody of the minor children of the parties to this action.' 239 S.C., at 317—318, 123 S.E.2d, at 39. It seems clear to us that the State Supreme Court was merely stating that under its own law it could modify custody decrees if the circumstances had changed.2 It seems equally clear to us that the court was not attempting to rely on South Carolina law for its conclusion that, since there were no changed circumstances, it had to give effect to the prior Virginia decree. In previously stating the issues submitted in the case, the court had said this:
12
'It was further submitted that the Juvenile and Domestic Relations Court of Greenville County must recognize, in accordance with the full faith and credit clause of the Constitution of the United States, the agreed Order of Dismissal of the Virginia Court and that such was res judicata, unless there was evidence of subsequent misconduct on the part of the appellant or a change of conditions warranting a change of the custody of the children.' 239 S.C., at 309, 123 S.E.2d, at 34—35.
13
What the court then went on to discuss was not whether the Virginia decree was res judicata under South Carolina law but whether it was res judicata under Virginia law and therefore entitled to full faith and credit in South Carolina. We are convinced that the court rested its decision squarely and solely on its reading of Virginia law and of the Full Faith and Credit Clause as requiring South Carolina, in the absence of a change of circumstances, to give full effect to the prior Virginia decree. Nothing in the court's opinion suggests what it might have done under South Carolina law had it not so interpreted the Full Faith and Credit Clause.
14
Whether the South Carolina court's interpretation of the Full Faith and Credit Clause is a correct one is a question we have previously reserved.3 We need not reach that question here. The Full Faith and Credit Clause, if applicable to a custody decree, would require South Carolina to recognize the Virginia order as binding only if a Virginia court would be bound by it. Recognizing this, the South Carolina Supreme Court's opinion was largely devoted to a review of Virginia cases to determine the effect in Virginia of the order of dismissal. The cases relied on by the South Carolina court do hold that the parties to some actions may agree to a dismissal and that in such cases a 'dismissed agreed' order is res judicata between the parties. All of the Virginia cases discussed by the South Carolina court, however, involved purely private controversies4 which private litigants can settle, and none involved the custody of children where the public interest is strong. In each case the Virginia dismissal was the result of an agreement between the parties equivalent to a compromise intended to settle a cause of action.5 Whatever the effect given such dismissals where only private interests of parties are involved, cases involving custody of children raise very different considerations. We are of the opinion that Virginia law, which does not treat a contract between the parents as a bar to the court's jurisdiction in custody cases,6 would similarly not treat as res judicata the dismissal in this case.
15
The Virginia court held no hearings as to the custody of the children. In entering its order of dismissal, the court neither examined the terms of the parents' agreement nor exercised its own judgment of what was best for the children. The court's order meant no more than that the parents had made an agreement between themselves. Virginia law, like that of probably every State in the Union,7 requires the court to put the child's interest first. The Supreme Court of Appeals of Virginia has stated this policy with unmistakable clarity:
16
'In Virginia, we have established the rule that the welfare of the infant is the primary, paramount, and controlling consideration of the court in all controversies between parents over the custody of their minor children. All other matters are subordinate.' Mullen v. Mullen, 188 Va. 259, 269, 49 S.E.2d 349, 354 (1948).
17
Unfortunately, experience has shown that the question of custody, so vital to a child's happiness and well-being, frequently cannot be left to the discretion of parents. This is particularly true where, as here, the estrangement of husband and wife beclouds parental judgment with emotion and prejudice. In Virginia, the parents cannot make agreements which will bind courts to decide a custody case one way or the other. The Virginia Supreme Court of Appeals has emphasized this deep-rooted Virginia policy by declaring: 'The custody and welfare of children are not the subject of barter.' Buchanan v. Buchanan, 170 Va. 458, 477, 197 S.E. 426, 434, 116 A.L.R. 688 (1938).
18
Whatever a Virginia court might do in a case where another court had exercised its considered judgment before awarding custody,8 we do not believe that, in view of Virginia's strong policy of safeguarding the welfare of the child, a court of that State would consider itself bound by a mere order of dismissal where, as here, the trial judge never even saw, much less passed upon, the parents' private agreement for custody and heard no testimony whatever upon which to base a judgment as to what would be best for the children.
19
We hold that the courts of South Carolina were not precluded by the Full Faith and Credit Clause from determining the best interest of these children and entering a decree accordingly. In holding otherwise, the South Carolina Supreme Court was in error. The case is reversed and remanded to that court for further proceedings not inconsistent with this opinion.
20
Reversed and remanded.
1
U.S.Const. Art. IV, § 1, states:
'Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.' The statute passed under this authority is found at 28 U.S.C. § 1738, 28 U.S.C.A. § 1738.
2
We have held that a court in one State can so modify a custody decree made in another State. New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947).
3
Kovacs v. Brewer, 356 U.S. 604, 607, 78 S.Ct. 963, 965, 2 L.Ed.2d 1008 (1958); New York ex rel. Halvey v. Halvey, 330 U.S. 610, 615—616, 67 S.Ct. 903, 906—907, 91 L.Ed. 1133 (1947).
4
Murden v. Wilbert, 189 Va. 358, 53 S.E.2d 42 (1949) (negligence action arising out of automobile accident); Hinton v. Norfolk & W.R. Co., 137 Va. 605, 120 S.E. 135 (1923) (personal injury suit); Bardach Iron & Steel Co. v. Tenenbaum, 136 Va. 163, 118 S.E. 502 (1923) (seller's suit for buyer's breach of contract).
5
Ibid. In a fourth case mentioned in the South Carolina opinion, Virginia Concrete Co. v. Board of Supervisors of Fairfax County, 197 Va. 821, 91 S.E.2d 415, 56 A.L.R.2d 1283 (1956), the dismissal was at the motion of plaintiff's counsel and was 'with prejudice.'
6
Gloth v. Gloth, 154 Va. 511, 551, 153 S.E. 879, 892, 71 A.L.R. 700 (1930).
7
See 17A Am.Jur., Divorce and Separation, § 818 (1957) and cases there collected.
8
A custody decree entered by a Virginia court 'ordinarily' will not be altered in the absence of changed circumstances. E.g., Collins v. Collins, 183 Va. 408, 32 S.E.2d 657 (1945); Darnell v. Barker, 179 Va. 86, 18 S.E.2d 271 (1942). Even where there is such a decree, it is arguable that Virginia courts do in fact make de novo reviews of the correctness of the original decrees. See Semmes v. Semmes, 201 Va. 117, 109 S.E.2d 545 (1959); Andrews v. Geyer, 200 Va. 107, 104 S.E.2d 747 (1958).
| 89
|
371 U.S. 208
83 S.Ct. 279
9 L.Ed.2d 255
Madeline C. SCHROEDER, Appellant,v.CITY OF NEW YORK.
No. 75.
Argued Nov. 15, 1962.
Decided Dec. 17, 1962.
Louis B. Scheinman, Woodbourne, N.Y., for appellant.
Theodore R. Lee, Kingston, N.Y., for appellee.
Osmond K. Fraenkel, New York City, as amicus curiae on behalf of the American Civil Liberties Union.
Mr. Justice STEWART delivered the opinion of the Court.
1
The question presented by this case is whether the City of New York deprived the appellant of due process of law by failing to give her adequate notice of condemnation proceedings affecting certain property she owned on the Neversink River in Orange County, New York. The property in question consisted of a house and three and one-half acres of land, which the appellant and her family occupied only during the months of July and August each year.
2
In 1952 the city instituted a proceeding under the provisions of the New York City Water Supply Act1 to acquire the right to divert a portion of the Neversink River at a point in Sullivan County, New York, some 25 miles upstream from the appellant's property. The Water Supply Act, which sets out the procedure to be followed by the New York Board of Water Supply in condemning land, easements, and rights affecting real property required for the New York City water system, provides that notice of such condemnation proceedings be given to affected landowners in the following manner:
3
'The corporation counsel shall give notice in the City Record, and in two public newspapers published in the city of New York and in two public newspapers published in each other county in which any real estate laid out on such maps may be located, and which it is proposed to acquire in the proceeding, of his intention to make application to such court for the appointment of commissioners of appraisal * * *. Such notice shall be so published, once in each week, in each of such newspapers, for six weeks immediately previous to the presentation of such petition; and the corporation counsel shall in addition to such advertisement cause copies of the same in hand bills to be posted up, for the same space of time in at least twenty conspicuous places on the line of the aqueduct or in the vicinity of the real estate so to be taken or affected.'2
4
The Act further provides that all claims for damages resulting from the city's acquisition are barred after three years.3
5
Proceeding in accordance with the statute, the city caused notice of its acquisition of the right to divert the Neversink to be published the requisite number of times in the City Record of the City of New York, in two New York City newspapers, and in two newspapers published in Orange County, and in addition posted 22 notices on trees and poles along a seven-or eight-mile stretch of the river in the general vicinity of the appellant's premises. No notice was posted anywhere on the appellant's property itself. The two Orange County newspapers in which publication was made were published in small communities many miles from the appellant's property, although at the time there were newspapers being published in larger Orange County towns nearby. The notices were posted on the trees and poles during the month of January, when the appellant's premises were vacant. Although the appellant's name and address were readily ascertainable from both deed records and tax rolls, neither the newspaper publications nor the posted notices contained the name of the appellant or of any other affected property owner. Neither the newspaper publications nor the posted notices explained what action a property owner might take to recover for damages caused by the city's acquisition, nor did they intimate any time limit upon the filing of a claim by an affected property owner.
6
The appellant did not file a claim for damages to her property within the three-year period prescribed by the Water Supply Act. In January 1960, however, she brought the present equitable action in a New York trial court. Her complaint alleged that she had never been notified of the condemnation proceedings, and knew nothing about them, nor of her right to make a claim against the city for damages to her property, until after she had consulted a lawyer in 1959. She alleged that by failing to give her adequate notice of the condemnation proceedings, the city had deprived her of property in violation of due process of law. The trial court granted the city's motion for judgment on the pleadings in an unreported opinion holding that 'the notice provisions of Section K41—8.0 of the Water Supply Act—admittedly fully complied with by the defendant'—were not 'violative of the due process provisions of the Federal and State Constitutions * * *.' This judgment was affirmed by the Appellate Division,4 and by the New York Court of Appeals, two judges dissenting.5 The case is properly here on appeal under 28 U.S.C. § 1257(2).
7
We hold that the newspaper publications and posted notices in the circumstances of this case did not measure up to the quality of notice which the Due Process Clause of the Fourteenth Amendment requires.
8
'An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278; Grannis v. Ordean, 234 U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363; Priest v. Board of Trustees of (the) Town of Las Vegas, 232 U.S. 604, 34 S.Ct. 443, 58 L.Ed. 751; Roller v. Holly, 176 U.S. 398, 20 S.Ct. 410, 44 L.Ed. 520.' Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865. In the Mullane case, which involved notice by publication to the beneficiaries of a common trust fund, the Court thoroughly canvassed the problem of sufficiency of notice under the Due Process Clause, pointing out the reasons behind the basic constitutional rule, as well as the practical considerations which make it impossible to draw a standard set of specifications as to what is constitutionally adequate notice, to be mechanically applied in every situation.
9
As was emphasized in Mullane, the requirement that parties be notified of proceedings affecting their legally protected interests is obviously a vital corolary to one of the most fundamental requisites of due process—the right to be heard. 'This right * * * has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.' 339 U.S., at 314, 70 S.Ct., at 657. The Court recognized the practical impossibility of giving personal notice in some cases, such as those involving missing or unknown persons. But the inadequacies of 'notice' by publication were described in words that bear repeating here:
10
'Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper's normal circulation the odds that the information will never reach him are large indeed. The chance of actual notice is further reduced when as here the notice required does not even name those whose attention it is supposed to attract, and does not inform acquaintances who might call it to attention.' 339 U.S., at 315, 70 S.Ct., at 658.
11
The general rule that emerges from the Mullane case is that notice by publication is not enough with respect to a person whose name and address are known or very easily ascertainable and whose legally protected interests are directly affected by the proceedings in question. 'Where the names and post office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.' 339 U.S., at 318, 70 S.Ct., at 659.
12
This rule was applied in New York v. New York, N.H. & H.R. Co., 344 U.S. 293, 296, 73 S.Ct. 299, 301, 97 L.Ed. 333, where the Court pointed out that '(n) otice by publication is a poor and sometimes a hopeless substitute for actual service of notice,' and that '(i)ts justification is difficult at best.' The rule was applied again in Walker v. Hutchinson City, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178, in a factual situation much akin to that in the present case. In Walker part of the appellant's land had been taken in condemnation proceedings, and he had been given 'notice' of a proceeding to fix his compensation only by publication in the official city newspaper. The Court held that such notice was constitutionally insufficient, noting that the appellant's name 'was known to the city and was on the official records,' and that '(e)ven a letter would have apprised him that his property was about to be taken and that he must appear if he wanted to be heard as to its value.' 352 U.S., at 116, 77 S.Ct., at 202.
13
Decision in the case before us we think is clearly controlled by the rule stated in the Mullane case, and by the specifically relevant application of that rule in the Walker case. It is true that in addition to publishing in newspapers, the city in the present case did put some signs on trees and poles along the banks of the river. But no such sign was placed anywhere on the appellant's property, or ever seen by her. The posting of these signs, therefore, did not constitute the personal notice that the rule enunciated in the Mullane case requires.
14
The majority opinion in the New York Court of Appeals seems additionally to have drawn support from an assumption that the effect of the city's diversion of the river must have been apparent to the appellant before the expiration of the three-year period within which the statute required that her claim be filed. 10 N.Y.2d, at 526—527, 225 N.Y.S.2d, at 213, 180 N.E.2d, at 569—570. There was no such allegation in the pleadings, upon which the case was decided by the trial court. But even putting this consideration aside, knowledge of a change in the appearance of the river is far short of notice that the city had diverted it and that the appellant had a right to be heard on a claim for compensation for damages resulting from the diversion.6 That was the information which the city was constitutionally obliged to make at least a good faith effort to give personally to the appellant—an obligation which the mailing of a single letter would have discharged.
15
The judgment of the New York Court of Appeals is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
16
Judgment of New York Court of Appeals reversed and cause remanded with directions.
1
Administrative Code of City of New York, Title K41.
2
Administrative Code of City of New York, Title K41—8.0.
3
Administrative Code of City of New York, Title K41—18.0.
4
14 A.D.2d 183, 217 N.Y.S.2d 975.
5
10 N.Y.2d 522, 225 N.Y.S.2d 210, 180 N.E.2d 568. Although the complaint prayed for a judgment enjoining the city from diverting the waters of the Neversink, the New York courts construed the pleading as the appropriate way to raise the question of the adequacy of the notice provisions and to assert the right to be heard on the issue of damages. In her brief the appellant has conceded that she is not entitled to an injunction. Cf. Walker v. Hutchinson City, 352 U.S. 112, 114, n. 3, 77 S.Ct. 200, 201, 1 L.Ed.2d 178.
6
The complaint alleged damages based upon the impairment of the river's value to the appellant for 'bathing, swimming, fishing and boating.' This claimed impairment allegedly resulted not from any change in the river's course, depth, or configuration, but from a decrease in the velocity of its flow.
| 34
|
371 U.S. 218
83 S.Ct. 277
9 L.Ed.2d 264
ARLAN'S DEPARTMENT STORE OF LOUISVILLE, INC., et al.v.KENTUCKY.
No. 503.
Dec. 17, 1962.
PER CURIAM.
1
The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.
2
Mr. Justice DOUGLAS, dissenting.
3
This is a criminal prosecution of the owners of three retail stores for employing persons in their businesses on Sunday.1 Each was fined $20 and costs and the convictions were sustained (357 S.W.2d 708) against the claim that the laws violated the First Amendment, applicable to the States by reason of the Fourteenth Amendment. The case differs from Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563, and Gallagher v. Crown Kosher Market, 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536, in that those who actually observe the Sabbath on a day of the week other than Sunday are exempt from the penal provisions.2 But as I indicated in my dissent in McGowan v. Maryland, 366 U.S. 420, 561, 81 S.Ct. 1101, 1218, 6 L.Ed.2d 393, the unconstitutionality of Sunday laws strikes much deeper. By what authority can government compel one person not to work on Sunday because the majority of the populace deems Sunday to be a holy day? Moslems may someday control a state legislature. Could they make criminal the opening of a shop on Friday? Would not we Christians fervently believe, if that came to pass, that government had no authority to make us bow to the scruples of the Moslem majority?
I said in my dissent in the McGowan case:
4
'* * * it is a strange Bill of Rights that makes it possible for the dominant religious group to bring the minority to heel because the minority, in the doing of acts which intrinsically are wholesome and not antisocial, does not defer to the majority's religious beliefs. Some have religious scruples against eating pork. Those scruples, no matter how bizzare they might seem to some, are within the ambit of the First Amendment. * * * Is it possible that a majority of a state legislature having those religious scruples could make it criminal for the nonbeliever to sell pork? Some have religious scruples against slaughtering cattle. Could a state legislature, dominated by that group, make it criminal to run an abattoir? * * * A legislature of Christians can no more make minorities conform to their weekly regime than a legislature of Moslems, or a legislature of Hindus. The religious regime of every group must be respected—unless it crosses the line of criminal conduct. But no one can be forced to come to a halt before it, or refrain from doing things that would offend it. That is my reading of the Establishment Clause and the Free Exercise Clause.' 366 U.S., at 575, 81 S.Ct., at 1225, 6 L.Ed.2d 393.
5
The religious nature of this state regulation is emphasized by the fact that it exempts 'members of a religious society' who actually observe the Sabbath on a day other than Sunday. The law is thus plainly an aid to all organized religions, bringing to heel anyone who violates the religious scruples of the majority by seeking his salvation not through organized religion but on his own.
6
I see no possible way by which this law can be sustained under the First Amendment.
7
'* * * if a religious leaven is to be worked into the affairs of our people, it is to be done by individuals and groups, not by the Government. This necessarily means, first, that the dogma, creed, scruples, or practices of no religious group or sect are to be preferred over those of any others; second, that no one shall be interfered with by government for practicing the religion of his choice; third, that the State may not require anyone to practice a religion or even any religion; and fourth, that the State cannot compel one so to conduct himself as not to offend the religious scruples of another. The idea, as I understand it, was to limit the power of government to act in religious matters * * * not to limit the freedom of religious men to act religiously nor to restrict the freedom of atheists or agnostics.' 366 U.S., at 563—564, 81 S.Ct. at 1219, 6 L.Ed.2d 393.
1
Kentucky Rev.Stat. § 436.160 reads in relevant part as follows:
'(1) Any person who works on Sunday at his own or at any other occupation or employs any other person, in labor or other business, whether for profit or amusement, unless his work or the employment of others is in the course of ordinary household duties, work of necessity or charity or work required in the maintenance or operation of a public service or public utility plant or system, shall be fined not less than two dollars nor more than fifty dollars. The employment of every person employed in violation of this subsection shall be deemed a separate offense.
'(2) Persons who are members of a religious society which observes as a Sabbath any other day in the week than Sunday shall not be liable to the penalty prescribed in subsection (1) of this section, if they observe as a Sabbath one day in each seven.
'(3) Subsection (1) of this section shall not apply to amateur sports, athletic games, operation of moving picture shows, chautauquas, filling stations or opera.'
2
Id., subsection (2).
| 23
|
371 U.S. 215
83 S.Ct. 283
9 L.Ed.2d 261
HARRIS TRUCK LINES, INC.v.CHERRY MEAT PACKERS, INC.
No. 435.
Dec. 17, 1962.
PER CURIAM.
1
The petition for writ of certiorari is granted and the judgment is vacated. Petitioner, a presently defunct interstate motor carrier which had its principal place of business in California, sued respondent, a shipper, in the District Court for the Northern District of Illinois for underpayment of freight charges. Respondent counterclaimed for damages to its freight. Local trial counsel was engaged for the suit by petitioner's general counsel in Los Angeles. The trial court ultimately dismissed petitioner's complaint and entered judgment for respondent for $11,347.52 on its counterclaim. Petitioner filed a motion for new trial, which was denied on June 28, 1961. On that date petitioner's general counsel, who by virtue of the fact that petitioner was winding up its business during 1961 had been delegated sole responsibility for all corporate decisions with respect to pending litigation, was vacationing in Mexico and could not be reached. He did not return to this country until July 20. In view of trial counsel's inability to contact the general counsel in order to ask whether to appeal, he instead came before the District Court in Illinois on July 13, stated his problem, and asked for an extension of time within which to appeal beyond the 30-day limit prescribed by Fed.Rules Civ.Proc., 73(a), 28 U.S.C.A., an extension which by the terms of the rule is limited to a period 'not exceeding 30 days from the expiration of the original time herein prescribed.' Opposing counsel, having been given notice, was present. The motion judge granted an extra two weeks, until August 11. Notice of appeal was filed on August 11. The Court of Appeals initially denied a motion of respondent to dismiss the appeal, and called for briefs on the merits. The court thereafter reconsidered and dismissed the appeal, holding that a showing of 'excusable neglect based on a failure of a party to learn of the entry of the judgment,' Fed.Rules Civ.Proc., 73(a), had not been made out to the motion judge, that there was hence no basis for waiving the 30-day limit, and that the appeal was untimely filed and had to be dismissed for lack of appellate jurisdiction. 7 Cir., 303 F.2d 609.
2
The District Court properly entertained the motion here in question to extend petitioner's time to appeal to the Court of Appeals before the initial 30 days allowed for docketing the appeal had elapsed. Fed.Rules Civ.Proc., 73(a), which governs here, is not limited to motions made after the 30 days have expired. See 7 Moore, Federal Practice (2d ed. 1955), 73.09(3); North Umberland Mining Co. v. Standard Acc. Ins. Co., 193 F.2d 951, 952 (C.A.9th Cir., 1952); Plant Economy, Inc. v. Mirror Insulation Co., 308 F.2d 275, 276 277 (C.A.3d Cir., 1962). The standard applicable on such a motion, whether it is made before or after the 30 days have run, is that the movant must show 'excusable neglect based on a failure of a party to learn of the entry of the judgment,' Fed.Rules Civ.Proc., 73(a). Compare 7 Moore, supra, 73.09(3); Notes of Advisory Committee on 1946 Amendments to Rule 73(a), quoted in 7 Moore, supra, 73.01(5), at p. 3111; Knowles v. United States, 260 F.2d 852, 854 (C.A.5th Cir., 1958). In view of the obvious great hardship to a party who relies upon the trial judge's finding of 'excusable neglect' prior to the expiration of the 30-day period and then suffers reversal of the finding, it should be given great deference by the reviewing court. Whatever the proper result as an initial matter on the facts here, the record contains a showing of unique circumstances sufficient that the Court of Appeals ought not to have disturbed the motion judge's ruling. The judgment is vacated and the case is remanded to the Court of Appeals so that petitioner's appeal may be heard on its merits.
3
Judgment vacated and case remanded.
4
Mr. Justice HARLAN (dissenting).
5
I would have denied certiorari on the ground that this case does not qualify for review under Rule 19 of this Court, 28 U.S.C.A.
6
Reaching the merits, however, I would affirm the judgment below substantially for the reasons given by the Court of Appeals. Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 7 Cir., 303 F.2d 609. Cf. Link v. Wabash Railroad Co., 370 U.S. 626, 633—634, 82 S.Ct. 1386, 1390—1391, 8 L.Ed.2d 734; United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259.
| 89
|
371 U.S. 228
83 S.Ct. 314
9 L.Ed.2d 283
UNITED STATES, Petitioner,v.BUFFALO SAVINGS BANK.
No. 96.
Argued Dec. 3, 1962.
Decided Jan. 7, 1963.
John B. Jones, Jr., for petitioner.
John H. Little, Buffalo, N.Y., for respondent.
PER CURIAM.
1
In 1946, respondent Buffalo Savings Bank made a loan secured by a real estate mortgage. The United States filed notice of a federal tax lien against the mortgagor's property in 1953. Thereafter, in 1957 and 1958, liens for unpaid real estate taxes and other local assessments attached to the property. The bank instituted foreclosure proceedings, naming the United States as a party. The trial court's decree ordered the property sold and the payment of local real estate taxes and other assessments as part of the expenses of the sale prior to the satisfaction of the tax lien of the United States. The United States appealed and the New York Supreme Court, Appellate Division, reversed, only to be reversed in turn by the New York Court of Appeals, which reinstated the trial court's judgment on the ground that the federal tax lien attached only to the mortgagor's interest in the surplus after the foreclosure sale and therefore was subordinate to the local taxes as 'expenses of sale.' 11 N.Y.2d 31, 226 N.Y.S.2d 382, 181 N.E.2d 413.
2
We must reverse the judgment of the New York Court of Appeals for failure to take proper account of United States v. New Britain, 347 U.S. 81, 74 S.Ct. 367, 98 L.Ed. 520. That case rules this one, for there the Court quite clearly held that federal tax liens have priority over subsequently accruing liens for local real estate taxes, even though the burden of the local taxes in the event of a shortage would fall upon the mortgagee whose claim under state law is subordinate to local tax liens.
3
A similar argument based on the general character of the federal tax lien was made and specifically rejected in New Britain. Moreover, the state may not avoid the priority rules of the federal tax lien by the formalistic device of characterizing subsequently accruing local liens as expenses of sale. Cf. United States v. Gilbert Associates, Inc., 345 U.S. 361, 73 S.Ct. 701, 97 L.Ed. 1071. Finally, respondent's reliance on United States v. Brosnan, 363 U.S. 237, 80 S.Ct. 1108, 4 L.Ed.2d 1192, and Crest Finance Co. v. United States, 368 U.S. 347, 82 S.Ct. 384, 7 L.Ed.2d 342, is misplaced. Brosnan was concerned with foreclosure procedures, not with priorities, and in connection with the latter subject relied upon New Britain among other cases. Crest is wholly inapposite here.
4
The judgment is therefore reversed and the cause remanded for further proceedings not inconsistent with this opinion.
5
Reversed and remanded.
6
Mr. Justice DOUGLAS dissents.
| 1112
|
371 U.S. 224
83 S.Ct. 312.
9 L.Ed.2d 279
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.RELIANCE FUEL OIL CORPORATION.
No. 88.
Argued Dec. 3, 1962.
Decided Jan. 7, 1963.
Louis F. Claiborne, New Orleans, La., for petitioner.
S. H. Borenkind, New York City, for respondent.
PER CURIAM.
1
The Reliance Fuel Oil Corporation, respondent herein, was found by the National Labor Relations Board to have committed certain unfair labor practices in violation of the National Labor Relations Act, 49 Stat. 449, as amended, 29 U.S.C. § 151 et seq., 29 U.S.C.A. § 151 et seq. Jurisdiction before the Board was predicated upon the fact that Reliance, a New York distributor of fuel oil whose operations were local,1 purchased within the State a 'substantial amount' of fuel oil and related products from the Gulf Oil Corporation, a supplier concededly engaged in interstate commerce. Most of the products sold to Reliance by Gulf were delivered to Gulf from without the State of New York and prior to sale and delivery to Reliance were stored, without segregation as to customer, in Gulf's tanks located within the State. During the fiscal year ending June 30, 1959, Reliance had gross sales in excess of $500,0002 and, during the calendar year 1959, it purchased in excess of $650,000 worth of fuel oil and related products from Gulf.
2
The Board adopted its trial examiner's findings that the operations of Reliance 'affected' commerce within the meaning of the Act and that the unfair labor practices found tended 'to lead to labor disputes burdening and obstructing commerce and the free flow of commerce * * *.' 129 N.L.R.B. 1166, 1171, 1182. The Court of Appeals reversed, 2 Cir., 297 F.2d 94, because, in its view, the record before the Board did not adequately demonstrate the existence of jurisdiction and remanded the case to the Board so that it might 'take further evidence and make further findings on the manner in which a labor dispute at Reliance affects or tends to affect commerce.' The only issue before this Court is whether on the record before it the Board properly found that it had jurisdiction to enter an order against Reliance; the substantive findings as to the existence of the unfair labor practices are not here in dispute.
3
Under § 10(a) of the Act, the Board is empowered 'to prevent any person from engaging in any unfair labor practice (listed in section 8 of this title) affecting commerce.' Section 2(6) defines 'commerce' to mean 'trade, traffic, commerce, transportation, or communication among the * * * States * * *' and § 2(7) declares:
4
'The term 'affecting commerce' means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.'
5
This Court has consistently declared that in passing the National Labor Relations Act, Congress intended to and did vest in the Board the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause. See, e.g., Guss v. Utah Labor Relations Board, 353 U.S. 1, 3, 77 S.Ct. 598, 599, 609, 1 L.Ed.2d 601; Polish National Alliance of United States of North America v. National Labor Relations Board, 322 U.S. 643, 647—648, 64 S.Ct. 1196, 1198—1199, 88 L.Ed. 1509; National Labor Relations Board v. Fainblatt, 306 U.S. 601, 607, 59 S.Ct. 668, 672, 83 L.Ed. 1014. Compare Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 480, 75 S.Ct. 480, 487, 99 L.Ed. 546. The Act establishes a framework within which the Board is to determine 'whether proscribed practices would in particular situations adversely affect commerce when judged by the full reach of the constitutional power of Congress. Whether or no practices may be deemed by Congress to affect interstate commerce is not to be determined by confining judgment to the quantitative effect of the activities immediately before the Board. Appropriate for judgment is the fact that the immediate situation is representative of many others throughout the country, the total incidence of which if left unchecked may well become far-reaching in its harm to commerce.' Polish National Alliance of United States of North America v. National Labor Relations Board, 322 U.S. at 648, 64 S.Ct. at 1199. See also National Labor Relations Board v. Fainblatt, 306 U.S. at 607—608, 59 S.Ct. 672.
6
That activities such as those of Reliance affect commerce and are within the constitutional reach of Congress is beyond doubt. See, e.g., Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122. Through the National Labor Relations Act, '* * * Congress has explicitly regulated not merely transactions or goods in interstate commerce but activities which in isolation might be deemed to be merely local but in the interlacings of business across state lines adversely affect such commerce.' Polish National Alliance of United States of North America v. National Labor Relations Board, 322 U.S. at 648, 64 S.Ct. at 1199. This being so, the jurisdictional test is met here: the Board properly found that by virtue of Reliance's purchases from Gulf, Reliance's operations and the related unfair labor practices 'affected' commerce, within the meaning of the Act. The judgment of the Court of Appeals accordingly must be and is reversed.
7
Judgment reversed.
8
Mr. Justice BLACK concurs in the result.
1
In 1959 Reliance purchased a few hundred dollars worth of truck parts in New Jersey, but the Board did not rely on such transactions to sustain its assertion of jurisdiction.
2
Since the Board apparently treated Reliance as a 'retail' concern, this amount of gross sales met its self-imposed standard for exercise of jurisdiction. 129 N.L.R.B. 1166, 1170—1171.
| 67
|
371 U.S. 236
83 S.Ct. 373
9 L.Ed.2d 285
John R. JONES, Petitioner,v.W. K. CUNNINGHAM, Jr., Superintendent of Virginia State Penitentiary.
No. 77.
Argued Dec. 3, 1962.
Decided Jan. 14, 1963.
Daniel J. Meador, Charlottesville, Va., for petitioner.
Reno S. Harp, III, Richmond, Va., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
A United States District Court has jurisdiction under 28 U.S.C. § 2241, 28 U.S.C.A. § 2241 to grant a writ of habeas corpus 'to a prisoner * * * in custody in violation of the Constitution * * * of the United States.' The question in this case is whether a state prisoner who has been placed on parole is 'in custody' within the meaning of this section so that a Federal District Court has jurisdiction to hear and determine his charge that his state sentence was imposed in violation of the United States Constitution.1
2
In 1953 petitioner was convicted in a Virginia state court of an offense requiring confinement in the state penitentiary, and as this was his third such offense he was sentenced to serve 10 years in the state penitentiary. In 1961 he filed this petition for habeas corpus in the United States District Court for the Eastern District of Virginia, alleging that his third-offender sentence was based in part upon a 1946 larceny conviction which was invalid because his federal constitutional right to counsel had been denied at the 1946 trial. The District Court dismissed the petition but the Court of Appeals for the Fourth Circuit granted a certificate of probable cause and leave to appeal in forma pauperis. Shortly before the case came on for oral argument before the Court of Appeals petitioner was paroled by the Virginia Parole Board. The parole order placed petitioner in the 'custody and control' of the Parole Board and directed him to live with his aunt and uncle in LaFayette, Georgia. It provided that his parole was subject to revocation or modification at any time by the Parole Board and that petitioner could be arrested and returned to prison for cause. Among other restrictions and conditions, petitioner was required to obtain the permission of his parole officer to leave the community, to change residence, or to own or operate a motor vehicle. He was further required to make monthly reports to his parole officer, to permit the officer to visit his home or place of employment at any time, and to follow the officer's instructions and advice. When petitioner was placed on parole, the Superintendent of the Virginia State Penitentiary, who was the only respondent in the case, asked the Court of Appeals to dismiss the case as moot since petitioner was no longer in his custody. Petitioner opposed the motion to dismiss but, in view of his parole to the custody of the Virginia Parole Board, moved to add its members as respondents. The Court of Appeals dismissed, holding that the case was moot as to the superintendent because he no longer had custody or control over petitioner 'at large on parole.' It refused to permit the petitioner to add the Parole Board members as respondents because they did not have 'physical custody' of the person of petitioner and were therefore not proper parties. 4 Cir., 294 F.2d 608. We granted certiorari to decide whether a parolee is 'in custody' within the meaning of 28 U.S.C. § 2241, 28 U.S.C.A. § 2241 and is therefore entitled to invoke the habeas corpus jurisdiction of the United States District Court. 369 U.S. 809, 82 S.Ct. 687, 7 L.Ed.2d 611.
3
The habeas corpus jurisdictional statute implements the constitutional command that the writ of habeas corpus be made available.2 While limiting its availability to those 'in custody,' the statute does not attempt to mark the boundaries of 'custody' nor in any way other than by use of that word attempt to limit the situations in which the writ can be used. To determine whether habeas corpus could be used to test the legality of a given restraint on liberty, this Court has generally looked to common-law usages and the history of habeas corpus both in England and in this country.3
4
In England, as in the United States, the chief use of habeas corpus has been to seek the release of persons held in actual, physical custody in prison or jail. Yet English courts have long recognized the writ as a proper remedy even though the restraint is something less than close physical confinement. For example, the King's Bench as early as 1722 held that habeas corpus was appropriate to question whether a woman alleged to be the applicant's wife was being constrained by her guardians to stay away from her husband against her will.4 The test used was simply whether she was 'at her liberty to go where she please(d).'5 So also, habeas corpus was used in 1763 to require the production in court of an indentured 18-year-old girl who had been assigned by her master to another man 'for bad purposes.'6 Although the report indicates no restraint on the girl other than the covenants of the indenture, the King's Bench ordered that she 'be discharged from all restraint, and be at liberty to go where she will.'7 And more than a century ago an English court permitted a parent to use habeas corpus to obtain his children from the other parent, even though the children were 'not under imprisonment, restraint, or duress of any kind.'8 These examples show clearly that English courts have not treated the Habeas Corpus Act of 1679, 31 Car. II, c. 2—the forerunner of all habeas corpus acts—as permitting relief only to those in jail or like physical confinement.
5
Similarly, in the United States the use of habeas corpus has not been restricted to situations in which the applicant is in actual, physical custody. This Court itself has repeatedly held that habeas corpus is available to an alien seeking entry into the United States,9 although in those cases each alien was free to go anywhere else in the world. '(H)is movements,' this Court said, 'are restrained by authority of the United States, and he may by habeas corpus test the validity of his exclusion.'10 Habeas corpus has also been consistently regarded by lower federal courts as the appropriate procedural vehicle for questioning the legality of an induction or enlistment into the military service.11 The restraint, of course, is clear in such cases, but it is far indeed from the kind of 'present physical custody' thought by the Court of Appeals to be required. Again, in the state courts, as in England, habeas corpus has been widely used by parents disputing over which is the fit and proper person to have custody of their child,12 one of which we had before us only a few weeks ago.13 History, usage, and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on a man's liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus.
6
Respondent strongly urges upon us that however numerous the situations in which habeas corpus will lie prior decisions of this Court conclusively determine that the liberty of a person released on parole is not so restrained as to permit the parolee to attack his conviction in habeas corpus proceedings. In some of those cases, upon which the Court of Appeals in this case also relied, the petitioner had been completely and unconditionally released from custody;14 such cases are obviously not controlling here where petitioner has not been unconditionally released. Other cases relied upon by respondent held merely that the dispute between the petitioner and the named respondent in each case had become moot because that particular respondent no longer held the petitioner in his custody.15 So here, as in the cases last mentioned, when the petitioner was placed on parole, his cause against the Superintendent of the Virginia State Penitentiary became moot because the superintendent's custody had come to an end, as much as if he had resigned his position with the State. But it does not follow that this petitioner is wholly without remedy. His motion to add the members of the Virginia Parole Board as parties respondent squarely raises the question, not presented in our earlier cases, of whether the Parole Board now holds the petitioner in its 'custody' within the meaning of 28 U.S.C. § 2241, 28 U.S.C.A. § 2241 so that he can by habeas corpus require the Parole Board to point to and defend the law by which it justifies any restraint on his liberty.
7
The Virginia statute provides that a paroled prisoner shall be released 'into the custody of the Parole Board,'16 and the parole order itself places petitioner 'under the custody and control of the Virginia Parole Board.' And in fact, as well as in theory,17 the custody and control of the Parole Board involves significant restraints on petitioner's liberty because of his conviction and sentence, which are in addition to those imposed by the State upon the public generally. Petitioner is confined by the parole order to a particular community, house, and job at the sufferance of his parole officer. He cannot drive a car without permission. He must periodically report to his parole officer, permit the officer to visit his home and job at any time, and follow the officer's advice. He is admonished to keep good company and good hours, work regularly, keep away from undesirable places, and live a clean, honest, and temperate life. Petitioner must not only faithfully obey these restrictions and conditions but he must live in constant fear that a single deviation, however slight, might be enough to result in his being returned to prison to serve out the very sentence he claims was imposed upon him in violation of the United States Constitution. He can be rearrested at any time the Board or parole officer believes he has violated a term or condition of his parole,18 and he might be thrown back in jail to finish serving the allegedly invalid sentence with few, if any, of the procedural safeguards that normally must be and are provided to those charged with crime.19 It is not relevant that conditions and restrictions such as these20 may be desirable and important parts of the rehabilitative process; what matters is that they significantly restrain petitioner's liberty to do those things which in this country free men are entitled to do. Such restraints are enough to invoke the help of the Great Writ. Of course, that writ always could and still can reach behind prison walls and iron bars. But it can do more. It is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose—the protection of individuals against erosion of their right to be free from wrongful restraints upon their liaberty. While petitioner's parole releases him from immediate physical imprisonment, it imposes conditions which significantly confine and restrain his freedom; this is enough to keep him in the 'custody' of the members of the Virginia Parole Board within the meaning of the habeas corpus statute; if he can prove his allegations this custody is in violation of the Constitution, and it was therefore error for the Court of Appeals to dismiss his case as moot instead of permitting him to add the Parole Board members as respondents.
8
Respondent also argues that the District Court had no jurisdiction because the petitioner had left the territorial confines of the district. But this case is not like Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948), upon which respondent relies, because in that case petitioners were not even detained in the district when they originally filed their petition. Rather, this case is controlled by our decision in Ex parte Endo, 323 U.S. 283, 304—307, 65 S.Ct. 208, 219—220, 89 L.Ed. 243 (1944), which held that a District Court did not lose its jurisdiction when a habeas corpus petitioner was removed from the district so long as an appropriate respondent with custody remained. Here the members of the Parole Board are still within the jurisdiction of the District Court, and they can be required to do all things necessary to bring the case to a final adjudication.
9
The case is reversed and remanded to the Court of Appeals with directions to grant petitioner's motion to add the members of the Parole Board as respondents and proceed to a decision on the merits of petitioner's case.
10
Reversed.
1
Parole in this case was granted while petitioner's appeal was pending in the Court of Appeals.
2
'The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.' U.S.Const. Art. I, § 9.
3
See, e.g., McNally v. Hill, 293 U.S. 131, 136, 55 S.Ct. 24, 26, 79 L.Ed. 238 (1934); Ex parte Parks, 93 U.S. 18, 23 L.Ed. 787 (1876).
4
Rex v. Clarkson, 1 Str. 444, 93 Eng.Rep. 625 (K.B. 1722).
5
Id., at 445, 93 Eng.Rep., at 625.
6
Rex v. Delaval, 3 Burr. 1434, 97 Eng.Rep. 913 (K.B. 1763).
7
Id., at 1437, 97 Eng.Rep., at 914.
8
Earl of Westmeath v. Countess of Westmeath, as set out in a reporter's footnote in Lyons v. Blenkin, 1 Jac. 245, 264, 37 Eng.Rep. 842, 848 (Ch. 1821); accord Ex parte M'Clellan, 1 Dowl. 81 (K.B. 1831).
9
E.g., Brownell v. Tom We Shung, 352 U.S. 180, 183, 77 S.Ct. 252, 254, 1 L.Ed.2d 225 (1956); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1950); United States v. Jung Ah Lung, 124 U.S. 621, 626, 8 S.Ct. 663, 665, 31 L.Ed. 591 (1888).
10
Shaughnessy v. United States ex rel. Mezei, supra note 9, at 213, 73 S.Ct. at 629.
11
E.g., Ex parte Fabiani, 105 F.Supp. 139 (D.C.E.D.Pa.1952); United States ex rel. Steinberg v. Graham, 57 F.Supp. 938 (D.C.E.D.Ark.1944).
12
E.g., Boardman v. Boardman, 135 Conn. 124, 138, 62 A.2d 521, 528, 13 A.L.R.2d 295 (1948); Barlow v. Barlow, 141 Ga. 535, 536—537, 81 S.E. 433, 434, 52 L.R.A.,N.S., 683 (1914); In re Swall, 36 Nev. 171, 174, 134 P. 96, 97, (1913) ('the question of physical restraint need be given little or no consideration where a lawful right is asserted to retain possession of the child'). See also In re Hollopeter, 52 Wash. 41, 100 P. 159, 21 L.R.A., N.S., 847 (1909) (husband held entitled to release of his wife from restraint by her parents); In re Chace, 26 R.I. 351, 358, 58 A. 978, 981, 69 L.R.A. 493 (1904) (wife held entitled to husband's society free of restraint by his guardian).
13
Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273 (1962).
14
Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960); Zimmerman v. Walker, 319 U.S. 744, 63 S.Ct. 1027, 87 L.Ed. 1700 (1943); Tornello v. Hudspeth, 318 U.S. 792, 63 S.Ct. 990, 87 L.Ed. 1158 (1943).
15
United States ex rel. Lynn v. Downer, 322 U.S. 756, 64 S.Ct. 1263, 88 L.Ed. 1585 (1944); United States ex rel. Innes v. Crystal, 319 U.S. 755, 63 S.Ct. 1164, 87 L.Ed. 1708 (1943); Weber v. Squier, 315 U.S. 810, 62 S.Ct. 800, 86 L.Ed. 1209 (1942).
16
Va.Code Ann. § 53—264.
17
See Anderson v. Corall, 263 U.S. 193, 196, 44 S.Ct. 43, 68 L.Ed. 247 (1923) ('While (parole) is an amelioration of punishment, it is in legal effect imprisonment'); von Hentig, Degrees of Parole Violation and Graded Remedial Measures, 33 J.Crim.L. & Criminology 363 (1943).
18
Va.Code Ann. §§ 53—258, 53—259. In fact, all the Board has to find is that there was 'a probable violation.'
19
Even the condition which requires petitioner not to violate any penal laws or ordinances, at first blush innocuous, is a significant restraint because it is the Parole Board members or the parole officer who will determine whether such a violation has occurred.
20
The conditions involved in this case appear to be the common ones. See Giardini The Parole Process, 12—16 (1959).
| 01
|
371 U.S. 471
83 S.Ct. 407
9 L.Ed.2d 441
WONG SUN and James Wah Toy, Petitioners,v.UNITED STATES.
No. 36.
Reargued Oct. 8 and 9, 1962.
Decided Jan. 14, 1963.
Edward Bennett Williams, Washington, D.C., for petitioners.
J. William Doolittle, Asst. to Sol. Gen., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The petitioners were tried without a jury in the District Court for the Northern District of California under a two-count indictment for violation of the Federal Narcotics Laws, 21 U.S.C. § 174, 21 U.S.C.A. § 174.1 They were acquitted under the first count which charged a conspiracy, but convicted under the second count which charged the substantive offense of fraudulent and knowing transportation and concealment of illegally imported heroin. The Court of Appeals for the Ninth Circuit, one judge dissenting, affirmed the convictions. 288 F.2d 366. We granted certiorari. 368 U.S. 817, 82 S.Ct. 75, 7 L.Ed.2d 23. We heard argument in the 1961 Term and reargument this Term. 370 U.S. 908, 82 S.Ct. 1254, 8 L.Ed.2d 403.
2
About 2 a.m. on the morning of June 4, 1959, federal narcotics agents in San Francisco, after having had one Hom Way under surveillance for six weeks, arrested him and found heroin in his possession. Hom Way, who had not before been an informant, stated after his arrest that he had bought an ounce of heroin the night before from one known to him only as 'Blackie Toy,' proprietor of a laundry on Leavenworth Street.
3
About 6 a.m. that morning six or seven federal agents went to a laundry at 1733 Leavenworth Street. The sign above the door of this establishment said 'Oye's Laundry.' It was operated by the petitioner James Wah Toy. There is, however, nothing in the record which identifies James Wah Toy and 'Blackie Toy' as the same person. The other federal officers remained nearby out of sight while Agent Alton Wong, who was of Chinese ancestery, rang the bell. When petitioner Toy appeared and opened the door, Agent Wong told him that he was calling for laundry and dry cleaning. Toy replied that he didn't open until 8 o'clock and told the agent to come back at that time. Toy started to close the door. Agent Wong thereupon took his badge from his pocket and said, 'I am a federal narcotics agent.' Toy immediately 'slammed the door and started running' down the hallway through the laundry to his living quarters at the back where his wife and child were sleeping in a bedroom. Agent Wong and the other federal officers broke open the door and followed Toy down the hallway to the living quarters and into the bedroom. Toy reached into a nightstand drawer. Agent Wong thereupon drew his pistol, pulled Toy's hand out of the drawer, placed him under arrest and handcuffed him. There was nothing in the drawer and a search of the premises uncovered no narcotics.
4
One of the agents said to Toy '* * * (Hom Way) says he got narcotics from you.' Toy responded, 'No, I haven't been selling any narcotics at all. However, I do know somebody who has.' When asked who that was, Toy said, 'I only know him as Johnny. I don't know his last name.' However, Toy described a house on Eleventh Avenue where he said Johnny lived; he also described a bedroom in the house where he said 'Johnny kept about a piece'2 of heroin, and where he and Johnny had smoked some of the drug the night before. The agents left immediately for Eleventh Avenue and located the house. They entered and found one Johnny Yee in the bedroom. After a discussion with the agents, Yee took from a bureau drawer several tubes containing in all just less than one ounce of heroin, and surrendered them. Within the hour Yee and Toy were taken to the Office of the Bureau of Narcotics. Yee there stated that the heroin had been brought to him some four days earlier by petitioner Toy and another Chinese known to him only as 'Sea Dog.'
5
Toy was questioned as to the identity of 'Sea Dog' and said that 'Sea Dog' was Wong Sun. Some agents, including Agent Alton Wong, took Toy to Wong Sun's neighborhood where Toy pointed out a multifamily dwelling where he said Wong Sun lived. Agent Wong rang a downstairs door bell and a buzzer sounded, opening the door. The officer identified himself as a narcotics agent to a woman on the landing and asked 'for Mr. Wong.' The woman was the wife of petitioner Wong Sun. She said that Wong Sun was 'in the back room sleeping.' Alton Wong and some six other officers climbed the stairs and entered the apartment. One of the officers went into the back room and brought petitioner Wong Sun from the bedroom in handcuffs. A thorough search of the apartment followed, but no narcotics were discovered.
6
Petitioner Toy and Johnny Yee were arraigned before a United States Commissioner on June 4 on a complaint charging a violation of 21 U.S.C. § 174, 21 U.S.C.A. § 174. Later that day, each was released on his own recognizance. Petitioner Wong Sun was arraigned on a similar complaint filed the next day and was also released on his own recognizance.3 Within a few days, both petitioners and Yee were interrogated at the office of the Narcotics Bureau by Agent William Wong, also of Chinese ancestry.4 The agent advised each of the three of his right to withhold information which might be used against him, and stated to each that he was entitled to the advice of counsel, though it does not appear that any attorney was present during the questioning of any of the three. The officer also explained to each that no promises or offers of immunity or leniency were being or could be made.
7
The agent interrogated each of the three separately. After each had been interrogated the agent prepared a statement in English from rough notes. The agent read petitioner Toy's statement to him in English and interpreted certain portions of it for him in Chinese. Toy also read the statement in English aloud to the agent, said there were corrections to be made, and made the corrections in his own hand. Toy would not sign the statement, however; in the agent's words 'he wanted to know first if the other persons involved in the case had signed theirs.' Wong Sun had considerable difficulty understanding the statement in English and the agent restated its substance in Chinese. Wong Sun refused to sign the statement although he admitted the accuracy of its contents.5
8
Hom Way did not testify at petitioners' trial. The Government offered Johnny Yee as its principal witness but excused him after he invoked the privilege against self-incrimination and flatly repudiated the statement he had given to Agent William Wong. That statement was not offered in evidence nor was any testimony elicited from him identifying either petitioner as the source of the heroin in his possession, or otherwise tending to support the charges against the petitioners.
9
The statute expressly provides that proof of the accused's possession of the drug will support a conviction under the statute unless the accused satisfactorily explains the possession. The Government's evidence tending to prove the petitioners' possession (the petitioners offered no exculpatory testimony) consisted of four items which the trial court admitted over timely objections that they were inadmissible as 'fruits' of unlawful arrests or of attendant searches: (1) the statements made orally by petitioner Toy in his bedroom at the time of his arrest; (2) the heroin surrendered to the agents by Johnny Yee; (3) petitioner Toy's pretrial unsigned statement; and (4) petitioner Wong Sun's similar statement. The dispute below and here has centered around the correctness of the rulings of the trial judge allowing these items in evidence.
10
The Court of Appeals held that the arrests of both petitioners were illegal because not based on "probable cause' within the meaning of the Fourth Amendment' nor 'reasonable grounds' within the meaning of the Narcotic Control Act of 1956.6 The court said as to Toy's arrest, 'There is no showing in this case that the agent knew Hom Way to be reliable,' and, furthermore, found 'nothing in the circumstances occurring at Toy's premises that would provide sufficient justification for his arrest without a warrant.' 288 F.2d at 369, 370. As to Wong Sun's arrest, the court said 'there is no showing that Johnnie Yee was a reliable informer.' The Court of Appeals nevertheless held that the four items of proof were not the 'fruits' of the illegal arrests and that they were therefore properly admitted in evidence.
11
The Court of Appeals rejected two additional contentions of the petitioners. The first was that there was insufficient evidence to corroborate the petitioners' unsigned admissions of possession of narcotics. The court held that the narcotics in evidence surrendered by Johnny Yee, together with Toy's statements in his bedroom at the time of arrest corroborated petitioners' admissions. The second contention was that the confessions were inadmissible because they were not signed. The Court of Appeals held on this point that the petitioners were not prejudiced, since the agent might properly have testified to the substance of the conversations which produced the statements.
12
We believe that significant differences between the cases of the two petitioners require separate discussion of each. We shall first consider the case of petitioner Toy.
I.
13
The Court of Appeals found there was neither reasonable grounds nor probable cause for Toy's arrest. Giving due weight to that finding, we think it is amply justified by the facts clearly shown on this record. It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion, see Henry v. United States, 361 U.S. 98, 101, 80 S.Ct. 168, 170, 4 L.Ed.2d 134, though the arresting officer need not have in hand evidence which would suffice to convict. The quantum of information which constitutes probable cause—evidence which would 'warrant a man of reasonable caution in the belief' that a felony has been committed, Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543—must be measured by the facts of the particular case. The history of the use, and not infrequent abuse, of the power to arrest cautions that a relaxation of the fundamental requirements of probable cause would 'leave law-abiding citizens at the mercy of the officers' whim or caprice.'7 Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879.
14
Whether or not the requirements of reliability and particularity of the information on which an officer may act are more stringent where an arrest warrant is absent, they surely cannot be less stringent then where an arrest warrant is obtained. Otherwise, a principal incentive now existing for the procurement of arrest warrants would be destroyed.8 The threshold question in this case, therefore, is whether the officers could, on the information which impelled them to act, have procured a warrant for the arrest of Toy. We think that no warrant would have issued on evidence then available.
15
The narcotics agents had no basis in experience for confidence in the reliability of Hom Way's information; he had never before given information. And yet they acted upon his imprecise suggestion that a person described only as 'Blackie Toy,' the proprietor of a laundry somewhere on Leavenworth Street, had sold one ounce of heroin. We have held that identification of the suspect by a reliable informant may constitute probable cause for arrest where the information given is sufficiently accurate to lead the officers directly to the suspect. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. That rule does not, however, fit this case. For aught that the record discloses, Hom Way's accusation merely invited the officers to roam the length of Leavenworth Street (some 30 blocks) in search of one 'Blackie Toy's' laundry—and whether by chance or other means (the record does not say) they came upon petitioner Toy's laundry, which bore not his name over the door, but the unrevealing label 'Oye's.' Not the slightest intimation appears on the record, or was made on oral argument, to suggest that the agents had information giving them reason to equate 'Blackie' Toy and James Wah Toy—e.g., that they had the criminal record of a Toy, or that they had consulted some other kind of official record or list, or had some information of some kind which had narrowed the scope of their search to this particular Toy.
16
It is conceded that the officers made no attempt to obtain a warrant for Toy's arrest. The simple fact is that on the sparse information at the officers' command, no arrest warrant could have issued consistently with Rules 3 and 4 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503.9 The arrest warrant procedure serves to insure that the deliberate, impartial judgment of a judicial officer will be interposed between the citizen and the police, to assess the weight and credibility of the information which the complaining officer adduces as probable cause. Cf. Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 4 L.Ed.2d 697. To hold that an officer may act in his own, unchecked discretion upon information too vague and from too untested a source to permit a judicial officer to accept it as probable cause for an arrest warrant, would subvert this fundamental policy.
17
The Government contends, however, that any defects in the information which somehow took the officers to petitioner Toy's laundry were remedied by events which occurred after they arrived. Specifically, it is urged that Toy's flight down the hall when the supposed customer at the door revealed that he was a narcotics agent adequately corroborates the suspicion generated by Hom Way's accusation. Our holding in Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332, is relevant here, and exposes the fallacy of this contention. We noted in that case that the lawfulness of an officer's entry to arrest without a warrant 'must be tested by criteria identical with those embodied in 18 U.S.C. § 3109, 18 U.S.C.A. § 3109, which deals with entry to execute a search warrant.' 357 U.S. at 306, 78 S.Ct. at 1194. That statute requires that an officer must state his authority and his purpose at the threshold, and be refused admittance, before he may break open the door. We held that when an officer insufficiently or unclearly identifies his office or his mission, the occupant's flight from the door must be regarded as ambiguous conduct. We expressly reserved the question 'whether the unqualified requirements of the rule admit of an exception justifying noncompliance in exigent circumstances.' 357 U.S. at 309, 78 S.Ct. at 1196. In the instant case, Toy's flight from the door afforded no surer an inference of guilty knowledge than did the suspect's conduct in the Miller case. Agent Wong did eventually disclose that he was a narcotics officer. However, he affirmatively misrepresented his mission at the outset, by stating that he had come for laundry and dry cleaning. And before Toy filed, the officer never adequately dispelled the misimpression engendered by his own ruse. Cf. Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Gatewood v. United States, 93 U.S.App.D.C. 226, 209 F.2d 789.
18
Moreover, he made no effort at that time, nor indeed at any time thereafter, to ascertain whether the man at the door was the 'Blackie Toy' named by Hom Way. Therefore, this is not the case we hypothesized in Miller where 'without an express announcement of purpose, the facts known to officers would justify them in being virtually certain' that the person at the door knows their purpose. 357 U.S. at 310, 78 S.Ct. at 1196. Toy's refusal to admit the officers and his flight down the hallway thus signified a guilty knowledge no more clearly than it did a natural desire to repel an apparently unauthorized intrusion.10 Here, as in Miller, the Government claims no extraordinary circumstances—such as the imminent destruction of vital evidence, or the need to rescue a victim in peril—see 357 U.S., at 309, 78 S.Ct. 1195—which excused the officer's failure truthfully to state his mission before he broke in.
19
A contrary holding here would mean that a vague suspicion could be transformed into probable cause for arrest by reason of ambiguous conduct which the arresting officers themselves have provoked. Cf. Henry v. United States, 361 U.S. 98, 104, 80 S.Ct. 168, 172, 4 L.Ed.2d 134. That result would have the same essential vice as a proposition we have consistently rejected—that a search unlawful at its inception may be validated by what it turns up. Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520; United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 228, 92 L.Ed. 210. Thus we conclude that the Court of Appeals' finding that the officers' uninvited entry into Toy's living quarters was unlawful and that the bedroom arrest which followed was likewise unlawful, was fully justified on the evidence. It remains to be seen what consequences flow from this conclusion.
II.
20
It is conceded that Toy's declarations in his bedroom are to be excluded if they are held to be 'fruits' of the agents' unlawful action.
21
In order to make effective the fundamental constitutional guarantees of sanctity of the home and inviolability of the person, Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, this Court held nearly half a century ago that evidence seized during an unlawful search could not constitute proof against the victim of the search. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. The exclusionary prohibition extends as well to the indirect as the direct products of such invasions. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319. Mr. Justice Holmes, speaking for the Court in that case, in holding that the Government might not make use of information obtained during an unlawful search to subpoena from the victims the very documents illegally viewed, expressed succinctly the policy of the broad exclusionary rule:
22
'The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed.' 251 U.S. at 392, 40 S.Ct. at 183.
23
The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It follows from our holding in Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of 'papers and effects.' Similarly, testimony as to matters observed during an unlawful invasion has been excluded in order to enforce the basic constitutional policies. McGinnis v. United States, 1 Cir., 227 F.2d 598. Thus, verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers' action in the present case is no less the 'fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion.11 See Nueslein v. District of Columbia, 73 App.D.C. 85, 115 F.2d 690. Nor do the policies underlying the exclusionary rule invite any logical distinction between physical and verbal evidence. Either in terms of deterring lawless conduct by federal officers, Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233, or of closing the doors of the federal courts to any use of evidence unconstitutionally obtained, Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, the danger in relaxing the exclusionary rules in the case of verbal evidence would seem too great to warrant introducing such a distinction.
24
The Government argues that Toy's statements to the officers in his bedroom, although closely consequent upon the invasion which we hold unlawful, were nevertheless admissible because they resulted from 'an intervening independent act of a free will.' This contention, however, takes insufficient account of the circumstances. Six or seven officers had broken the door and followed on Toy's heels into the bedroom where his wife and child were sleeping. He had been almost immediately handcuffed and arrested. Under such circumstances it is unreasonable to infer that Toy's response was sufficiently an act of free will to purge the primary taint of the unlawful invasion.12
25
The Government also contends that Toy's declarations should be admissible because they were ostensibly exculpatory rather than incriminating. There are two answers to this argument. First, the statements soon turned out to be incriminating, for they led directly to the evidence which implicated Toy. Second, when circumstances are shown such as those which induced these declarations, it is immaterial whether the declarations be termed 'exculpatory.'13 Thus we find no substantial reason to omit Toy's declarations from the protection of the exclusionary rule.
III.
26
We now consider whether the exclusion of Toy's declarations requires also the exclusion of the narcotics taken from Yee, to which those declarations led the police. The prosecutor candidly told the trial court that 'we wouldn't have found those drugs except that Mr. Toy helped us to.' Hence this is not the case envisioned by this Court where the exclusionary rule has no application because the Government learned of the evidence 'from an independent source,' Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319; nor is this a case in which the connection between the lawless conduct of the police and the discovery of the challenged evidence has 'become so attenuated as to dissipate the taint.' Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307. We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt, 221 (1959). We think it clear that the narcotics were 'come at by the exploitation of that illegality' and hence that they may not be used against Toy.
IV.
27
It remains only to consider Toy's unsigned statement. We need not decide whether, in light of the fact that Toy was free on his own recognizance when he made the statement, that statement was a fruit of the illegal arrest. Cf. United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654. Since we have concluded that his declarations in the bedroom and the narcotics surrendered by Yee should not have been admitted in evidence against him, the only proofs remaining to sustain his conviction are his and Wong Sun's unsigned statements. Without scrutinizing the contents of Toy's ambiguous recitals, we conclude that no reference to Toy in Wong Sun's statement constitutes admissible evidence corroborating any admission by Toy. We arrive at this conclusion upon two clear lines of decisions which converge to require it. One line of our decisions establishes that criminal confessions and admissions of guilt require extrinsic corroboration; the other line of precedents holds that an out-of-court declaration made after arrest may not be used at trial against one of the declarant's partners in crime.
28
It is a settled principle of the administration of criminal justice in the federal courts that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused.14 We observed in Smith v. United States, 348 U.S. 147, 153, 75 S.Ct. 194, 197, 99 L.Ed. 192, that the requirement of corroboration is rooted in 'a long history of judicial experience with confessions and in the realization that sound law enforcement requires police investigations which extend beyond the words of the accused.' In Opper v. United States, 348 U.S. 84, 89—90, 75 S.Ct. 158, 162—163, 99 L.Ed. 101, we elaborated the reasons for the requirement:
29
'In our country the doubt persists that the zeal of the agencies of prosecution to protect the peace, the self-interest of the accomplice, the maliciousness of an enemy or the aberration or weakness of the accused under the strain of suspicion may tinge or warp the facts of the confession. Admissions, retold at a trial, are much like hearsay, that is, statements not made at the pending trial. They had neither the compulsion of the oath nor the test of cross-examination.'
30
It is true that in Smith v. United States, supra, we held that although 'corroboration is necessary for all elements of the offense established by admissions alone,' extrinsic proof was sufficient which 'merely fortifies the truth of the confession, without independently establishing the crime charged * * *.' 348 U.S. at 156, 75 S.Ct. at 199.15 However, Wong Sun's unsigned confession does not furnish competent corroborative evidence. The second governing principle, likewise well settled in our decisions, is that an out-of-court declaration made after arrest may not be used at trial against one of the declarant's partners in crime. While such a statement is 'admissible against the others where it is in furtherance of the criminal undertaking * * * all such responsibility is at an end when the conspiracy ends.' Fiswick v. United States, 329 U.S. 211, 217, 67 S.Ct. 224, 227, 91 L.Ed. 196. We have consistently refused to broaden that very narrow exception to the traditional hearsay rule which admits statements of a codefendant made in furtherance of a conspiracy or joint undertaking.16 See Krulewitch v. United States, 336 U.S. 440, 443—445, 69 S.Ct. 716, 718—719, 93 L.Ed. 790. And where postconspiracy declarations have been admitted, we have carefully ascertained that limiting instructions kept the jury from considering the contents with respect to the guilt of anyone but the declarant. Lutwak v. United States, 344 U.S. 604, 618—619, 73 S.Ct. 481, 489—490, 97 L.Ed. 593; Delli Paoli v. United States, 352 U.S. 232, 236—237, 77 S.Ct. 294, 297, 1 L.Ed.2d 278. We have never ruled squarely on the question presented here, whether a codefendant's statement might serve to corroborate even where it will not suffice to convict.17 We see no warrant for a different result so long as the rule which regulates the use of out-of-court statements is one of admissibility, rather than simply of weight, of the evidence. The import of our previous holdings is that a co-conspirator's hearsay statements may be admitted against the accused for no purpose whatever, unless made during and in furtherance of the conspiracy. Thus as to Toy the only possible source of corroboration is removed and his conviction must be set aside for lack of competent evidence to support it.
V.
31
We turn now to the case of the other petitioner, Wong Sun. We have no occasion to disagree with the finding of the Court of Appeals that his arrest, also, was without probable cause or reasonable grounds. At all events no evidentiary consequences turn upon that question. For Wong Sun's unsigned confession was not the fruit of that arrest, and was therefore properly admitted at trial. On the evidence that Wong Sun had been released on his own recognizance after a lawful arraignment, and had returned voluntarily several days later to make the statement, we hold that the connection between the arrest and the statement had 'become so attenuated as to dissipate the taint.' Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307. The fact that the statement was unsigned, whatever bearing this may have upon its weight and credibility, does not render it inadmissible; Wong Sun understood and adopted its substance, though he could not comprehend the English words. The petitioner has never suggested any impropriety in the interrogation itself which would require the exclusion of this statement.
32
We must then consider the admissibility of the narcotics surrendered by Yee. Our holding, supra, that this ounce of heroin was inadmissible against Toy does not compel a like result with respect to Wong Sun. The exclusion of the narcotics as to Toy was required solely by their tainted relationship to information unlawfully obtained from Toy, and not by any official impropriety connected with their surrender by Yee. The seizure of this heroin invaded no right of privacy of person or premises which would entitle Wong Sun to object to its use at his trial. Cf. Goldstein v. United States, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312.18
33
However, for the reasons that Wong Sun's statement was incompetent to corroborate Toy's admissions contained in Toy's own statement, any references to Wong Sun in Toy's statement were incompetent to corroborate Wong Sun's admissions. Thus, the only competent source of corroboration for Wong Sun's statement was the heroin itself. We cannot be certain, however, on this state of the record, that the trial judge may not also have considered the contents of Toy's statement as a source of corroboration. Petitioners raised as one ground of objection to the introduction of the statements the claim that each statement, 'even if it were a purported admission or confession or declaration against interest of a defendant * * * would not be binding upon the other defendant.' The trial judge, in allowing the statements in, apparently overruled all of petitioners' objections, including this one. Thus we presume that he considered all portions of both statements as hearing upon the guilt of both petitioners.
34
We intimate no view one way or the other as to whether the trial judge might have found in the narcotics alone sufficient evidence to corroborate Wong Sun's admissions that he delivered heroin to Yee and smoked heroin at Yee's house around the date in question. But because he might, as the factfinder, have found insufficient corroboration from the narcotics alone, we cannot be sure that the scales were not tipped in favor of conviction by reliance upon the inadmissible Toy statement. This is particularly important because of the nature of the offense involved here.
35
Surely, under the narcotics statute, the discovery of heroin raises a presumption that someone—generally the possessor—violated the law. As to him, once possession alone is proved, the other elements of the offense—transportation and concealment with knowledge of the illegal importation of the drug—need not be separately demonstrated, much less corroborated. 21 U.S.C. § 174, 21 U.S.C.A. § 174. Thus particular care ought to be taken in this area, when the crucial element of the accused's possession is proved solely by his own admissions, that the requisite corroboration be found among the evidence which is properly before the trier of facts. We therefore hold that petitioner Wong Sun is also entitled to a new trial.
36
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.
37
It is so ordered.
38
Judgment of Court of Appeals reversed and case remanded to the District Court.
39
(For concurring opinion of MR. JUSTICE DOUGLAS, see 371 U.S. 497, 83 S.Ct. 422.)
40
(For dissenting opinion of MR. JUSTICE CLARK, see 371 U.S. 498, 83 S.Ct. 423.)
APPENDIX TO OPINION OF THE COURT.
41
Statement of JAMES WAH TOY taken on June 5, 1959, concerning his knowledge of WONG SUN's narcotic trafficking
42
I have known WONG SUN for about 3 months. I know him as SEA DOG which is what everyone calls him. I first met him in Marysville, California, during a Chinese holiday. I drove him back to San Francisco on that occasion. Sometimes he asks me to drive him home and to different places in San Francisco.
43
Sometime during April or May of this year, he asked me to drive him out to JOHNNY YEE's house, at 11th and Balboa Streets. He asked me to call JOHNNY and tell him we were coming. When we got there we went into the house and WONG SUN took a paper package out of his pocket and put it on the table. Then both WONG SUN and JOHNNY YEE opened the package. I don't know how much heroin was in it, but I know it was more than 10 spoons. I asked them if I could have some for myself and they said yes. I took a little bit and went across the room and smoked it in a cigarette.
44
WONG SUN and JOHNNY YEE talked for about 10 or 15 minutes, but they were talking in low tones so that I could not hear what they were saying. I didn't see any money change hands, because I wasn't paying too much attention. WONG SUN and I then left the house and drove. I drove WONG SUN to his home and he gave me $15.00. He said the money was for driving him out there.
45
I have driven WONG SUN out to JOHNNY YEE's house about 5 times altogether. Each time WONG SUN gave me $10 or $15 for doing it and also, Johnny gave me a little heroin—enough to put in 3 or 4 cigarettes. The last time I drove WONG SUN out to YEE's house was last Tuesday, May 26, 1959. On Wednesday night June 3, 1959, at about 10:00 p.m., I called JOHNNY YEE and told him that 'I'm coming out pretty soon—I don't have anything.' He said okay, so I drove out there. When I got there I went in the house and Johnny gave me a paper of heroin. The bindle had about enough for 5 or 6 cigarettes. I didn't give him any money and he didn't ask for any. He gives it to me just out of friendship. He has given me heroin like this quite a few times. I don't remember how many times. I have known HOM WEI about 2 or 3 years but I have never dealt in narcotics with him. I have known ED FONG about 1 year and I have never dealt in narcotics with him, either. I have heard people that I know in the Hop Sing Tong Club talk about HOM WEI dealing in narcotics but nothing about ED FONG. I do not know JOHN MOW LIM or BILL FONG. The only connection I have now is JOHNNY YEE.
46
I have carefully read the foregoing statement, which was made of my own free will, without promise of reward or immunity and not under duress. I have been given ample opportunity to make corrections have initialed or signed each page as evidence thereof and hereby state that this statement is true to the best of my knowledge and belief.
47
_ _eof
JAMES WAH TOY
48
JAMES WAH TOY did not wish to sign this statement at this time. He stated he may change his mind at a later date. However, I read this statement to him and in addition he read it also and stated that the contents thereof were true to the best of his knowledge. Corrections made were by JAMES WAH TOY without his initials.
49
/s/ WILLIAM WONG
William Wong, Narcotic Agent
STATEMENT OF WONG SUN
50
I met JAMES TOY approximately the middle of March, this year, at Marysville, California, during a Chinese celebration. We returned to San Francisco together and we discussed the possible sale of heroin. I told JMAES that I could get a piece of heroin for $450 from a person known as BILL.
51
Shortly after returning to San Francisco, JAMES told me he wanted me to get a piece. I asked him who it was for and he told me it was for JOHNNY. He gave me $450 and I obtained a piece of heroin from BILL. I did this on approximately 8 occasions, however, at least one of these times the heroin was not for JOHNNY—for another friend of JAMES TOY. JOHNNY would pay JAMES $600 for each piece.
52
On several occasions after I had obtained the piece for JAMES I would drive with him to JOHNNY's house, 606 11th Avenue, and we would go upstairs to the bedroom. There, all three of us would smoke some of the heroin and JAMES would give the piece to JOHNNY. I also went with JAMES on approximately 3 other occasions when he did not take any heroin and then we smoked at JOHNNY's and we would also get some for our own use.
53
About 4 days before I was arrested (arrested on June 4, 1959) JAMES called me at home about 7 o'clock in the evening and told me to come by. I went to the laundry and JAMES told me to get a piece. I called BILL and arranged to meet him. JAMES gave me $450 which I gave to BILL when I met him. BILL called me about one hour later at the laundry and I met him. He gave me one piece, which I gave to JAMES, and JAMES immediately thereafter called JOHNNY. We drove to 606—11th Ave. at approximately midnight and JAMES gave the piece to JOHNNY. It was contained in a rubber contraceptive in a small brown paper bag.
54
Again on June 3rd, the night before I was arrested, I met JAMES at the laundry, prior to 11 o'clock in the evening, and JAMES telephoned JOHNNY at EV—6—9336. Then we went out to JOHNNY's and smoked heroin and also had one paper for our own use later. We were there approximately 1/2 hour and then left.
55
The laundry mentioned is OYE's LAUNDRY, 1733 Leavenworth Street, which is run by JAMES TOY. I do not know JOHNNY's last name and know him only through JAMES TOY. As well as the few times at JOHNNY's home, I have seen JOHNNY on a number of occasions at the laundry.
56
I have carefully read the foregoing statement, consisting of 2 pages which was made of my own free will, without promise of reward or immunity and not under duress. I have been given ample opportunity to make corrections, have initialed or signed each page as evidence thereof and hereby state that this statement is true to the best of my knowledge and belief.
57
_ _age
WONG SUN
58
WONG SUN, being unable to read English, did not sign this statement. However, I read this statement to him and he stated that the contents thereof were true to the best of his knowledge.
59
/s/ WILLIAM WONG
William Wong, Narcotic Agent
60
Mr. Justice DOUGLAS, concurring.
61
While I join the Court's opinion I do so because nothing the Court holds is inconsistent with my belief that there having been time to get a warrant, probable cause alone could not have justified the arrest of petitioner Toy without a warrant.
62
I adhere to the views I expressed in Jones v. United States, 362 U.S. 257, 273, 80 S.Ct. 725, 737, 4 L.Ed.2d 697. What I said in the Jones case had been earlier stated by Mr. Justice Jackson, writing for the Court in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (another narcotics case):
63
'The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers.' Pp. 13—14, 68 S.Ct. p. 369. And see Chapman v. United States, 365 U.S. 610, 615—616, 81 S.Ct. 776, 779, 5 L.Ed.2d 828.
64
The Court finds it unnecessary to reach that constitutional question. I mention it only to reiterate that the Johnson case represents the law and is in no way eroded by what we fail to decide today.
65
Mr. Justice CLARK, with whom Mr. Justice HARLAN, Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.
66
The Court has made a Chinese puzzle out of this simple case involving four participants: Hom Way, Blackie Toy, Johnny Yee and 'Sea Dog' Sun. In setting aside the convictions of Toy and Sun it has dashed to pieces the heretofore recognized standards of probable cause necessary to secure an arrest warrant or to make an arrest without one. Instead of dealing with probable cause as involving 'probabilities,' 'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act,' Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949), the Court sets up rigid, mechanical standards, applying the 20—20 vision of hind-sight in an area where the ambiguity and immediacy inherent in unexpected arrest are present. While probable cause must be based on more than mere suspicion, Henry v. United States, 361 U.S. 98, 104, 80 S.Ct. 168, 172, 4 L.Ed.2d 134 (1959), it does not require proof sufficient to establish guilt. Draper v. United States, 358 U.S. 307, 312, 79 S.Ct. 329, 332, 3 L.Ed.2d 327 (1959). The sole requirement heretofore has been that the knowledge in the hands of the officers at the time of arrest must support a 'man of reasonable caution in the belief' that the subject had committed narcotic offenses. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925). That decision is faced initially not in the courtroom but at the scene of arrest where the totality of the circumstances facing the officer is weighed against his split-second decision to make the arrest. This is an everyday occurrence facing law enforcement officers, and the unrealistic, enlarged standards announced here place an unnecessarily heavy hand upon them. I therefore dissent.
I.
67
The first character in this affair is Hom Way, who was arrested in possession of narcotics and told the officers early that morning that he had purchased an ounce of heroin on the previous night from Blackie Toy, who operated a laundry on Leavenworth Street. Narcotics agents, armed with this information from a person they had known for six weeks and who was under arrest for possession of narcotics, immediately sought out Blackie Toy, the second character. The laundry was located without difficulty (as far as the record shows) from the information furnished by Hom Way. The Court gratuitously reads into the record its supposition that Hom Way 'merely invited the officers to roam the length of Leavenworth Street (some 30 blocks) in search of one 'Blackie Toy's' laundry * * *.' On the contrary, the identification of 'Blackie' and the directions to his laundry were sufficiently accurate for the officers—two of whom were of Chinese ancestry—to find Blackie at his laundry within an hour. I cannot say in the face of this record that this was a 'roaming' performance up and down Leavenworth Street. To me it was efficient police work by officers familiar with San Francisco and the habits and practices of its Chinese-American inhabitants. Indeed, the information was much more explicit than that approved by this Court in Draper v. United States, supra.
68
There are other indicia of reliability, however. Here the informer, believed by the officers to be reliable,* was under arrest when he implicated himself in the purchase of an ounce of heroin the previous night. Since he was in possession of narcotics and his information related to a narcotics sale in which he was the buyer, the officers had good reason to rely on Hom Way's knowledge. See Rodgers v. United States, 267 F.2d 79 (C.A.9th Cir., 1959), and Thomas v. United States, 281 F.2d 132 (C.A.8th Cir.), cert. denied, 364 U.S. 904, 81 S.Ct. 239, 5 L.Ed.2d 196 (1960). As to his credibility, he was confronted with prosecution for possession of narcotics and well knew that any discrepancies in his story might go hard with him. Furthermore, the statement was a declaration against interest which stripped Hom Way of any explanation for his possession of narcotics and made certain the presumption of 21 U.S.C. § 174, 21 U.S.C.A. § 174. I do not see what stronger and more reliable information one could have to establish probable cause for the arrest without warrant of Blackie Toy.
69
But even assuming there was no probable cause at this point, the Government produced additional evidence to support the lawfulness of Backie's arrest. In broad daylight, about 6:30 on the same morning that Hom Way was arrested, one of the officers of Chinese ancestry, Agent Alton Wong, knocked on Blackie Toy's laundry door. When Wong told him that he wanted laundry, Blackie opened the door and advised him to return at 8 a.m. Wong testified that he then 'pulled out (his) badge' and announced that he was a narcotics agent. Blackie slammed the door in Wong's face and ran down the hall of the laundry. Wong broke through the door after him—calling again that he was 'a narcotics Treasury agent.' Only when Blackie reached the family bedroom was Wong able to arrest him, as he reached into a nightstand drawer, apparently looking for narcotics. Agent Wong immediately confronted him with Hom Way's accusation that Blackie Toy had sold him narcotics. Blackie denied selling narcotics, but he did not deny knowing Hom Way and later admitted knowing him. There is no basis in Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), for the Court's conclusion that Blackie's flight 'signified * * * a natural desire (by Toy) to repel an apparently unauthorized intrusion. * * *' As I see it this is incredible in the light of the record. Nor is there any support in the record that 'before Toy fled, the officer never adequately dispelled the misimpression engendered by his own ruse.' On the contrary the officer's showing of his badge and announcement that he was a narcotics agent immediately put Blackie in flight behind the slamming door. To conclude otherwise takes all prizes as a non sequitur. As he pursued, Wong continued to identify himself as a narcotics agent. I ask, how could he more clearly announce himself and his purpose?
70
This Court has often held unexplained flight—as here—from an officer to be strong evidence of guilt. E.g., Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931); Brinegar v. United States, supra, 338 U.S. at p. 166, n. 7, 69 S.Ct. 1306; see Henry v. United States, supra, where the Court was careful to distinguish its facts from those of 'fleeing men or men acting furtively.' 361 U.S. at 103, 80 S.Ct. at 172. Moreover, as the Government has always emphasized, this is particularly true in narcotics cases where delay may have serious consequences, i.e., the hiding or destruction of the drugs. This Court noted without disapproval in Miller v. United States, supra, the state decisions holding that 'justification for noncompliance (with the rule) exists in exigent circumstances, as, for example, when the officers may in good faith believe * * * that the person to be arrested is fleeing or attempting to destroy evidence. People v. Maddox, 46 Cal.2d 301, 294 P.2d 6.' 357 U.S. at 309, 78 S.Ct. at 1196. And the Court continued, 'It may be that, without an express announcement of purpose, the facts known to officers would justify them in being virtually certain that the petitioner already knows their purpose so that an announcement would be a useless gesture. Cf. People v. Martin, 45 Cal.2d 755, 290 P.2d 855; Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 798, 802 (1924).' Id. at 310, 78 S.Ct. at 1196.
71
The Court places entire reliance on the decision in Miller. I submit that it is inapposite. That case involved interpretation of the law of the District of Columbia. Id. at 306, 78 S.Ct. 1194. The arrest was at night, and the door was broken in just as the defendant began to close it. Thus there was no flight but only what the officers believed to be an attempt to bar their entrance. The only identification given by the officers occurred before the defendant opened the door, when 'in a low voice' through the closed door they answered the defendant's query as to who was there by saying, 'Police.' Id. at 303, 78 S.Ct. 1192. The facts in Miller differ significantly from this case both in the clarity of identification by the officers and in the character and extent of the defendant's conduct. For that reason, the conclusions that Blackie's flight is evidence to support probable cause and that the officers gave sufficient notice to permit lawful entry are supported rather than weakened by the Court's decision in Miller.
72
The information from Hom Way and Blackie Toy's unexplained flight cannot be viewed 'in two separate, logic-tight compartments. * * * (T)ogether they composed a picture meaningful to a trained, experienced observer.' Christensen v. United States, 104 U.S.App.D.C. 35, 36, 259 F.2d 192, 193 (1958). I submit that the officers as reasonable men properly concluded that the petitioner was the 'Blackie Toy' who Hom Way informed them had committed a felony and that his immediate arrest—as he ran through his hall—was lawful and was imperative in order to prevent his escape. In view of this there is no 'poisonous tree' whose fruits we must evaluate, and Blackie's declaration at the time of the arrest and the narcotics found in Yee's possession are admissible in evidence. The trial court found that evidence sufficiently corroborative of Toy's confession, and the Court of Appeals affirmed. For the same reasons discussed, infra, as to Wong Sun, I see no occasion to overturn these consistent findings of two courts.
II.
73
As to 'Sea Dog,' Wong Sun, there is no disagreement that his confession and the narcotics found in Yee's possession were admissible in evidence against him. The question remains as to whether there was sufficient independent evidence to corroborate the confession. Such evidence 'does not have to prove the offense beyond a reasonable doubt, or even by a preponderance * * *.' Smith v. United States, 348 U.S. 147, 156, 75 S.Ct. 194, 199, 99 L.Ed. 192 (1954). The requirement is satisfied 'if the corroboration merely fortifies the truth of the confession, without independently establishing the crime charged * * *.' Ibid; see also Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954). Wong Sun's confession stated in part that about four days before his arrest he and Toy delivered an ounce of heroin to Yee and that on the night before his arrest—the night of June 3, 1959—he and Toy smoked some heroin at Yee's house. On June 4, 1959, the officers found at Yee's residence quantities of heroin totaling 'just less than one ounce.' In light of this evidence, I am unable to say that the trial court and the Court of Appeals erred in holding that Wong Sun's confession was sufficiently corroborated.
74
The Court does not reach a contrary conclusion as to corroboration, but it grants Wong Sun a new trial on the ground that the trial court 'may' also 'have considered the contents of Toy's statement as a source of corroboration' of it. This point was not raised as a question here nor was it discussed in the briefs. Despite this the Court goes to some lengths to develop a chain of inferences in finding prejudicial error. This might be plausible where the case was tried to a jury, as were all the cases cited by the Court. Indeed, I find no case where such presumption of error was applied, as here, to a trial before a judge. The Court admits that the heroin found in Johnny Yee's possession might itself be sufficient corroboration, but it reverses on the excuse that the judge 'may' have considered Toy's confession as well. I see no reason for this assumption where a federal judge is the trier of the fact, and I would therefore affirm the judgment as to both petitioners.
1
21 U.S.C. § 174, 21 U.S.C.A. § 174:
'Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or conspires to commit any of such acts in violation of the laws of the United States, shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than $20,000. For a second or subsequent offense (as determined under section 7237(c) of the Internal Revenue Code of 1954), the offender shall be imprisoned not less than ten or more than forty years and, in addition, may be fined not more than $20,000.
'Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.'
2
A 'piece' is approximately one ounce.
3
The Record of the arraignment proceedings recites that arrest warrants were issued, on the arraignment dates, for the arrest of both petitioners and Yee. It was conceded in the trial court, however, that no arrest warrants were outstanding at the time of the actual arrests on June 4.
The Record also states that bond was initially fixed for each of the petitioners and for Yee in the amount of $5,000, on the recommendation of the United States Attorney. Later on the respective arraignment days, again on motion of the United States Attorney, it was ordered that each of the three be released on his own recognizance.
4
Because neither statement was ever signed, the blanks in which the dates were to have been inserted were never filled in. The heading of Toy's statement suggests that it was made on June 5, although Agent William Wong at the trial suggested he had only talked informally with Toy on that date, the formal statement not being made until June 9. The agent also testified that Wong Sun's statement was made June 9, although a rubberstamp date beneath the agent's own signature at the foot of the statement reads, 'June 15, 1959.'
5
The full texts of both statements are set forth in an Appendix to this opinion.
6
26 U.S.C. § 7607, 26 U.S.C.A. § 7607:
'The Commissioner, Deputy Commissioner, Assistant to the Commissioner, and agents, of the Bureau of Narcotics of the Department of the Treasury, and officers of the customs (as defined in section 401(1) of the Tariff Act of 1930, as amended; 19 U.S.C., sec. 1401(1)), may—
'(1) carry firearms, execute and serve search warrants and arrest warrants, and serve subpenas and summonses issued under the authority of the United States, and
'(2) make arrests without warrant for violations of any law of the United States relating to narcotic drugs (as defined in section 4731) or marihuana (as defined in section 4761) where the violation is committed in the presence of the person making the arrest or where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation.'
The terms 'probable cause' for purposes of the Fourth Amendment and 'reasonable grounds' as used in the statute, mean substantially the same. Draper v. United States, 358 U.S. 307, 310, n. 3, 79 S.Ct. 329, 331, 3 L.Ed.2d 327; United States v. Walker, 7 Cir., 246 F.2d 519, 526.
7
See Giordenello v. United States, 357 U.S. 480, 485—487, 78 S.Ct. 1245, 1249—1250, 2 L.Ed.2d 1503; Johnson v. United States, 333 U.S. 10, 16—17, 68 S.Ct. 367, 370, 92 L.Ed. 436. See generally Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 673, 695—701 (1924).
8
Our discussion implies no view whether a search warrant should be obtained where a search is conducted incident to a valid arrest, cf. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, for nothing in this case turns on the presence or absence of a search warrant. Since the officers had obtained an arrest warrant in Rabinowitz, the question before us here was not there presented. As to the question before us, see Wrightson v. United States, 95 U.S.App.D.C. 390, 222 F.2d 556, 559—560:
'But, if officers can arrest without a warrant and never be required to disclose the facts upon which they based their belief of probable cause—if, in other words, they have an untouchable power to arrest without a warrant,—way would they ever bother to get a warrant? And the same obvious conclusion follows if the courts, when an arrest is attacked as illegal, will assume, without facts, that an arrest without a warrant was for probable cause. To strike down all factual requirements in respect to probable cause for arrests without a warrant, while maintaining them for the issuance of a warrant, would be to blast one of the support columns of justice by law.'
9
We noted in Giordenello that Rules 3 and 4 of the Federal Rules of Criminal Procedure provide that an arrest warrant shall issue only upon a sworn complaint setting forth 'the essential facts constituting the offense charged,' and showing 'that there is probable cause to believe that an offense has been committed and that the defendant has committed it * * *.' The Fourth Amendment, from which the requirements of the Rules derive, provides that '* * * no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing * * * the persons or things to be seized.' (Emphasis added.) The requirement applies both to arrest and search warrants. A description of a suspect merely as 'Blackie Toy,' operator of a laundry somewhere on Leavenworth Street, hardly is information 'particularly describing * * * the person * * * to be seized.' Such information is no better than the wholesale or 'dragnet' search warrant, which we have condemned. See, e.g., Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231; see generally Kaplan, Search and Seizure: A No-Man's Land in the Criminal Law, 49 Calif.L.Rev. 474, 480—482 (1961).
10
Although the question presented here is only whether the petitioner's flight justified an inference of guilt sufficient to generate probable cause for his arrest, and not whether his flight would serve to corroborate proof of his guilt at trial, the two questions are inescapably related. Thus it is relevant to the present case that we have consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime. In Alberty v. United States, 162 U.S. 499, 511, 16 S.Ct. 864, 868, 40 L.Ed. 1051, this Court said:
'* * * it is not universally true that a man who is conscious that he has done a wrong, 'will pursue a certain course not in harmony with the conduct of a man who is conscious of having done an act which is innocent, right, and proper,' since it is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that 'the wicked flee when no man pursueth, but the righteous are as hold as a lion."
See also Hickory v. United States, 160 U.S. 408, 16 S.Ct. 327, 40 L.Ed. 474; Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528; Starr v. United States, 164 U.S. 627, 17 S.Ct. 223, 41 L.Ed. 577; and for the views of two Courts of Appeals see Vick v. United States, 216 F.2d 228, 233 (C.A.5th Cir.) ('One motive is about as likely as another. Appellant may be guilty, but his conviction cannot rest upon mere conjecture and suspicion'); cf. Cooper v. United States, 94 U.S.App.D.C. 343, 218 F.2d 39, 41 ('After all, innocent people caught in a web of circumstances frequently become terror-stricken'). But cf. United States v. Heitner, 149 F.2d 105 (C.A.2d Cir.).
11
See Kamisar, Illegal Searches or Seizures and Contemporaneous Incriminating Statements: A Dialogue on a Neglected Area of Criminal Procedure, 1961 U. of Ill.Law Forum 78, 84—96. But compare Maguire, Evidence of Guilt (1959), 187—190.
12
See Lord Devlin's comment: 'It is probable that even today, when there is much less ignorance about these matters than formerly, there is still a general belief that you must answer all questions put to you by a policeman, or at least that it will be the worse for you if you do not.' Devlin, The Criminal Prosecution in England (1958), 32. Even in the absence of such oppressive circumstances, and where an exclusionary rule rests principally on nonconstitutional grounds, we have sometimes refused to differentiate between voluntary and involuntary declarations. See Hogan and Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo.L.J. 1, 26—27 (1958). For illustrative situations where a voluntary act of the accused has been held insufficient to cure the otherwise unlawful acquisition of evidence, see Bynum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465 (holding inadmissible fingerprints made by defendant after unlawful arrest); United States v. Watson, D.C., 189 F.Supp. 776 (excluding narcotics voluntarily surrendered by accused in the course of an unauthorized search). The Ninth Circuit Court of Appeals from which the instant case comes has recognized in an analogous context, that 'all declarations and statements under the compulsion of the things so seized, are affected by the vice of primary illegality. * * *' Takahashi v. United States, 143 F.2d 118, 122.
13
Moreover, we held in Opper v. United States, 348 U.S. 84, 92, 75 S.Ct. 158, 164, 99 L.Ed. 101, that even where exculpatory statements are voluntary and thus clearly admissible, they require at least the degree of corroboration required of incriminating statements.
14
For the history and development of the corroboration requirement, see 7 Wigmore, Evidence (3d ed. 1940), §§ 2070—2071; Note, Proof of the Corpus Delicti Aliunde the Defendant's Confession, 103 U. of Pa.L.Rev. 638—649 (1955). For the present scope and application of the rule, see 2 Underhill, Criminal Evidence (5th ed. 1956), §§ 402—403. For a comprehensive collection of cases, see Annot., 45 A.L.R.2d 1316 (1956).
15
Where the crime involves physical damage to person or property, the prosecution must generally show that the injury for which the accused confesses responsibility did in fact occur, and that some person was criminally culpable. A notable example is the principle that an admission of homicide must be corroborated by tangible evidence of the death of the supposed victim. See 7 Wigmore, Evidence (3d ed. 1940), § 2072, n. 5. There need in such a case be no link, outside the confession, between the injury and the accused who admits having inflicted it. But where the crime involves no tangible corpus delicti, we have said that 'the corroborative evidence must implicate the accused in order to show that a crime has been committed.' 348 U.S. at 154, 75 S.Ct. at 198. Finally, we have said that one uncorroborated admission by the accused does not, standing alone, corroborate an unverified confession. United States v. Calderon, 348 U.S. 160, 165, 75 S.Ct. 186, 188, 99 L.Ed. 202.
16
See Developments in the Law—Criminal Conspiracy, 72 Harv.L.Rev. 922, 989—990 (1959).
17
Cf. Williams, The Proof of Guilt (1958), 135: 'Even where * * * the evidence of an accomplice becomes admissible against his fellows, it remains suspect evidence, because of the tainted source from which it comes. The accomplice may no longer have anything to fear or hope from the way in which he gives his evidence; yet he may mistakenly entertain such a fear or hope, or he may wish by his evidence against others to gratify some spite against them.'
18
This case is not like Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, where the person challenging the seizure of evidence was lawfully on the premises at the time of the search. Nor is it like Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828, where we held that a landlord could not lawfully consent to a search of his tenant's premises. See generally Edwards, Standing to Suppress Unreasonably Seized Evidence, 47 N.W.U.L.Rev. 471 (1952).
*
One of the officers testified at the trial that he had known Hom Way for six weeks. In response to the question whether Hom Way was a reliable informer, the officer replied, 'I believe so, yes, sir.'
| 01
|
371 U.S. 341
83 S.Ct. 448
9 L.Ed.2d 357
SHOTWELL MANUFACTURING COMPANY, et al., Petitioners,v.UNITED STATES.
No. 16.
Argued Oct. 11 and 15, 1962.
Decided Jan. 14, 1963.
Rehearing Denied March 18, 1963.
See 372 U.S. 950, 83 S.Ct. 931.
[Syllabus from pages 341-343 intentionally omitted]
George B. Christensen and William T. Kirby, Chicago, Ill., for petitioners.
Joseph M. Howard and Louis F. Oberdorfer, Washington, D.C., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This case is here for the second time in consequence of the remand that was ordered at the 1957 Term. United States v. Shotwell Mfg. Co., 355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234.
2
In 1953 petitioners were convicted after a jury trial in the United States District Court for the Northern District of Illinois of willful attempted evasion of federal income taxes of the Shotwell Manufacturing Company for the years 1945 and 1946. Int.Rev.Code of 1939, § 145(b), 53 Stat. 63, 26 U.S.C.A. § 145(b). The individual petitioners, Cain and Sullivan, were officers of Shotwell, a candy manufacturer. The charge was that the company's tax returns for these years had not reported substantial income, received from one Lubben, on sales of candy above OPA (Office of Price Administration) ceiling prices—so-called black-market sales.
3
On appeal the convictions were reversed and a new trial ordered by a divided Court of Appeals on the ground that the District Court should have ordered suppressed certain evidence, used at the trial, which petitioners had furnished the Government in reliance on the Treasury's then 'voluntary disclosure policy.' 225 F.2d 394. In substance that policy amounted to a representation by the Treasury that delinquent taxpayers could escape possible criminal prosecution by disclosing their derelictions to the taxing authorities before any investigation of them had commenced. See 355 U.S., at 235, note 2, 78 S.Ct., at 248; pp. 348—352, infra.
4
The evidence held subject to suppression consisted of tabulations purporting to show the amount of unreported black-market income received by Shotwell from Lubben during the two tax years in question, and offsetting black-market payments by Shotwell for the purchase of raw materials which almost matched the black-market receipts. Concluding that petitioners' disclosure had been a genuine one (contrary to the District Court's finding) and that it had been made before any investigation of Shotwell's tax returns had started and was thus timely (a question not reached by the District Court, 355 U.S., at 236, 78 S.Ct., at 248;), the Court of Appeals held that the disclosure was valid and that the Government could not, consistently with the Fifth Amendment, use the disclosed material at petitioners' trial.
5
The matter then came here for review on the Government's petition for certiorari, during the pendency of which the then Solicitor General moved to remand the case to the District Court for further proceedings on the suppression issue—an issue which both sides recognized had properly been one for the court and not for the jury. 355 U.S., at 244, 78 S.Ct., at 252; see United States v. Lustig, 2 Cir., 163 F.2d 85, 88—89, cert. denied, 332 U.S. 775, 68 S.Ct. 88, 92 L.Ed. 360. The motion was based on the claim that newly discovered evidence in possession of the Government would show that the Court of Appeals' decision as to the bona fides and timeliness of the alleged disclosure was the product of a tainted record, involving an attempt on the part of these petitioners 'to perpetrate a fraud upon the courts.' 355 U.S., at 241, 78 S.Ct., at 250. Without reaching any of the questions decided by the Court of Appeals we vacated the judgment of that court and remanded the case to the District Court with instructions to reexamine the disclosure episode in light of the parties' additional evidence and that already in the record, to decide anew the suppression issue, and depending upon its decision to enter a new judgment of conviction or an order for a new trial, as the case might be. 355 U.S., at 245—246, 78 S.Ct., at 253.
6
The District Court, after a full evidentiary hearing, again denied suppression, finding that 'no honest, bona fide voluntary disclosure' had ever been made and that fraud had 'permeated' the petitioners' disclosure showing at both suppression hearings and at the trial.1 These ultimate findings rested primarily on subsidiary findings that although Shotwell's black-market receipts had not in themselves been misrepresented, the claim that they had been almost entirely offset by payments for the purported purchase of black-market supplies was false—the truth being (contrary to what petitioners Cain and Sullivan had testified in the earlier proceedings) that most of Shotwell's black-market receipts, 'totaling between three and four hundred thousand dollars,' had found their way into the pockets of Cain, Sullivan and Huebner, all Shotwell officers. The District Court also denied motions for a new trial and overruled challenges, made for the first time in July 1957, to the original grand and petit jury arrays.
7
The Court of Appeals, sustaining these findings and rulings2 and overruling other challenges to the remand and original trial proceedings, has now affirmed these convictions, 287 F.2d 667. The case is again before us on certiorari. 368 U.S. 946, 82 S.Ct. 386, 7 L.Ed.2d 342. We affirm the judgment below.
I.
8
The principal contention is that notwithstanding the finding that Shotwell's disclosure of black-market receipts was fraudulently contrived, the Self-Incrimination Clause of the Fifth Amendment barred the Government's trial use of any of the disclosed material.3
9
Preliminarily we reject as specious petitioners' suggestion that the District Court's finding of fraud is infirm because the falsity of Shotwell's black-market payments, on which that finding principally rested, was an immaterial consideration in view of the Commissioner's then ruling that black-market payments were not includible in the cost of goods sold—in other words, that Shotwell's tax liability would have remained the same whether or not such expenditures were truthfully represented.4 The fact is that at the time the disclosure was made the Commissioner's ruling was even then in litigation, and some six months thereafter was rejected by the Tax Court, Sullenger v. Commissioner, 11 T.C. 1076, as it also was later by several of the Courts of Appeals. See Commissioner of Internal Revenue v. Weisman, 197 F.2d 221 (C.A.1st Cir.); Commissioner of Internal Revenue v. Guminski, 198 F.2d 265 (C.A.5th Cir.); Commissioner of Internal Revenue v. Gentry, 198 F.2d 267 (C.A.5th Cir.); Jones v. Herber, 198 F.2d 544 (C.A.10th Cir.).
10
Indeed, the record here shows that petitioners, despite the administrative ruling, attempted to negotiate a settlement reflecting a substantial allowance of such expenditures, and that in making their disclosure they reserved the right to contest the ruling by way of a suit for refund, in whole or in part, of the additional taxes to be assessed in respect of the unreported black-market income. Beyond this, had petitioners been able to convince the Treasury that Shotwell's failure to report the black-market receipts had been due to an honest, though mistaken, belief that such income could be offset by black-market expenditures, it might well have borne importantly on their liability for civil fraud penalties. Int.Rev.Code, 1939, § 293(b).5 In short, in making their suppression contention petitioners cannot escape the consequences of the finding that their disclosure was fraudulent.
11
It is of course a constitutional principle of long standing that the prosecution 'must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth.' Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 739, 5 L.Ed.2d 760. We have no hesitation in saying that this principle also reaches evidence of guilt induced from a person under a governmental promise of immunity, and where that is the case such evidence must be excluded under the Self-Incrimination Clause of the Fifth Amendment. See Bram v. United States, 168 U.S. 532, 542—543, 18 S.Ct. 183, 187, 42 L.Ed. 568; Hardy v. United States, 186 U.S. 224, 229, 22 S.Ct. 889, 891, 46 L.Ed. 1137; Ziang Sung Wan v. United States, 266 U.S. 1, 14, 45 S.Ct. 1, 3, 69 L.Ed. 131; Smith v. United States, 348 U.S. 147, 150, 75 S.Ct. 194, 196, 99 L.Ed. 192. The controlling test is that approved in Bram: "a confession, in order to be admissible, must be free and voluntary: that is, * * * not * * * obtained by any direct or implied promises, however slight * * *." Bram v. United States, supra, 168 U.S. at 542—543, 18 S.Ct. at 187. Evidence so procured can no more be regarded as the product of a free act of the accused than that obtained by official physical or psychological coercion. But in this instance we find nothing in the circumstances under which the challenged evidence was procured that would run afoul of these jealously guarded constitutional principles.
12
A coerced confession claim, whether founded on a promise of immunity or otherwise, always involves this question: did the governmental conduct complained of 'bring about' a confession 'not freely self-determined'? Rogers v. Richmond, supra, 365 U.S. at 544, 81 S.Ct. at 741. Under any tenable view of the present situation we think it clearly did not.
13
The inapplicability here of the constitutional principles relied on by petitioners inheres in both the essential character of this offer of immunity and the particular response of these petitioners to that offer. The offer was nothing more than part of a broad administrative policy designed to accomplish the expeditious and economical collection of revenue by enlisting taxpayer cooperation in clearing up as yet undetected underpayments of taxes, thereby avoiding the delays and expense of investigation and litigation. The Treasury's 'voluntary disclosure policy,' addressed to the public generally and not to particular individuals, was not an invitation aimed at extracting confessions of guilt from particular known or suspected delinquent taxpayers. Petitioners' position is not like that of a person, accused or suspected of crime, to whom a policeman, a prosecutor, or an investigating agency has made a promise of immunity or leniency in return for a statement. In those circumstances an inculpatory statement would be the product of inducement, and thus not an act of free will. No such inference, however, is allowable in the context of what happened here. Petitioners' response, it is true, might not have been made in the absence of the Treasury's offer, but that in itself is not the test. The voluntary disclosure policy left them wholly free to disclose or not as they pleased. In choosing to act as they did, petitioners, far from being the victims of that policy, were volunteers for its benefits.
14
Moreover, petitioners were not simply volunteers. Plainly the offer of immunity contained in the voluntary disclosure policy presupposed, at the very least, that a delinquent taxpayer would make a full 'clean breast of things.' 355 U.S., at 235, note 2, 78 S.Ct., at 248. Nothing less satisfies the basic reason for the policy—'taking a sensible step to produce the revenue called for by law with the minimum cost of investigation'6 (emphasis added) and its most recent official expression at the time this disclosure was made.7 And the record indeed shows that petitioners could not have understood otherwise.8 Given these factors the matter then parses down to this: granting that in deciding whether to disclose or run the risk of prosecution petitioners were initially justified in relying on the Treasury's general offer of immunity, once a fraudulent disclosure had been determined upon they must be deemed to have recognized that such offer had in effect been withdrawn as to them or, amounting to the same thing, that they were no longer entitled to place reliance on it. Petitioners are thus in legal effect left in no better position than they would have been had the Treasury formally withdrawn its offer of immunity before their disclosure figures were furnished. The case, then, is not merely one of volunteers but also one in which the facts disclosed were deliberately misrepresented. Under no acceptable stretch of the Bram test can petitioners' disclosure in these circumstances be regarded as the product of unlawful inducement.9 Its admission into evidence did not offend the Self-Incrimination Clause of the Fifth Amendment.10
15
Finally, relevant cases in the lower federal courts confirm the view that must be reached on principle. In the comparable situation of a disclosure by a taxpayer made only after he knew an investigation of his tax returns had commenced, such courts have consistently, and correctly we think, refused to suppress the Government's use of disclosed evidence on the ground that the disclosure could not have been induced by the offer of immunity where the offer had lapsed. United States v. Lustig, 163 F.2d 85, 88—89 (C.A.2d Cir.), cert. denied, 332 U.S. 775, 68 S.Ct. 88, 92 L.Ed. 360; White v. United States, 194 F.2d 215, 217 (C.A.5th Cir.), cert. denied, 343 U.S. 930, 72 S.Ct. 760, 96 L.Ed. 1340; Bateman v. United States, 212 F.2d 61, 65—66 (C.A.9th Cir.) (suppression also denied because disclosure not 'full and complete'); United States v. Weisman, 78 F.Supp. 979 (D.C.Mass.), Similarly a dishonest disclosure cannot be deemed to have been so induced.
16
Petitioners rely on Rex v. Barker, (1941) 2 K.B. 381, 3 All Eng. 33 (more fully reported there), a decision of the King's Bench Division holding inadmissible in a criminal trial documents, in part fraudulent, which the defendant had produced under a similar British disclosure policy. But that case does not support their position. For though the defendant there had first made only a partial and misleading disclosure, he had then followed it up with a full and honest one, after further discussions with the Iland Revenue and in reliance on its disclosure policy. In the case before us no full and honest disclosure was ever made.
17
Since no element of coercion or inducement, in any true sense of those terms, attended petitioners' disclosure, no inroad whatever upon constitutional rights is wrought by our rejection of this suppression claim. On the contrary, to sustain the claim would amount to turning an important constitutional principle upside down. For what we have here is not a case of incriminatory evidence having been induced by the Government, but one in which petitioners attempted to hoodwink the Government into what would have been a flagrant misapplication of its voluntary disclosure policy.
II.
18
Claiming that it appeared at the second suppression hearing that Lubben, whose transactions with Shotwell formed the basis of the charges in the indictment, had testified falsely at the trial respecting the amount of his black-market payments, petitioners contend that the District Court should have ordered a new trial of the entire case. The Court of Appeals made short shrift of this contention (287 F.2d, at 675), and we too find no substance in it.
19
The cornerstone of petitioners' argument is a statement made by the District Court in the course of its suppression opinion: '* * * that Lubben may have exaggerated the amounts of the payments that he and his confederates made to Shotwell is entirely probable.' This statement is sought to be portrayed as a euphemism for a finding that Lubben's trial testimony was perjurious. Were that so a new trial might well be in order, as the Government acknowledges, for Lubben was undoubtedly a crucial government witness. But the record both demonstrates the hollowness of that contention and affords no other basis for disturbing the conclusions of the two lower courts that these petitioners are not entitled to a new trial.
20
Far from constituting a finding of perjury, the District Court's remark respecting Lubben's trial testimony was nothing more than part of a general observation that the passage of time and the absence of any contemporary records of the Shotwell-Lubben transactions made difficult the pin-pointing of the exact amount of Shotwell's unreported black-market income and the amount thereof that was personally kept by one or another of the Shotwell officers. The suppression record makes clear that the District Court did not initially address itself to the question whether Lubben's trial testimony was perjurious, and that it was not asked to do so until after its opinion denying suppression had come down.
21
To the contrary, the District Court had not considered it important to determine the precise amounts of Lubben's black-market payments or of the moneys that were retained by Huebner, Sullivan and Cain. It was enough that 'the evidence is overwhelmingly clear that not only were' some $300,000 to $400,000 of black-market payments made to Shotwell by Lubben in the period 1944—1946, but also that 'the greater part' of this money 'was appropriated by Cain, Huebner and Sullivan for their own personal use.'11
22
Petitioners' motion for a new trial, and its denial, followed the filing of the suppression opinion. In their argument before the District Court defense counsel urged, among other things, that the court had 'euphemistically' found Lubben's trial testimony to have been perjurious and, more broadly, that the second suppression hearing and trial versions of the disclosure episode differed so widely as to entitle petitioners to a new jury trial of the main case.12 In denying the motion the district judge observed that he had simply said in his suppression opinion 'that the amount that Lubben said he paid may have been exaggerated,' and that he would grant a new trial if he thought there 'was a miscarriage of justice,' but that he did 'not so find.' A careful study of the record satisfies us that the District Court did not abuse its discretion in thus ruling.
23
Petitioners' argument on this score centers largely around the variances they claim to find between the testimony of Huebner (who had not testified in the earlier proceedings) at the second suppression hearing and Lubben's trial testimony as to the amount of Shotwell's black-market receipts. Huebner testified to some 16 or 17 occasions on which Black-market money had been received from Lubben, all of which he said had been divided between himself, Cain and Sullivan. These payments aggregated $272,000 in 1945 and 1946, the years involved in the indictment, as compared with $454,000, Lubben's total trial figure.13 But the indicated disparity of $182,000 is more apparent than real, for, apart from the fact that Huebner was not the only person in the Shotwell organization who had received Lubben money, and the fact that he was never asked to say whether these were the only Lubben payments he himself had received, there must be added to this $272,000 total some $125,000 to $150,000 that the defense asserted had gone into a 'corn box' (safe deposit box) and was actually used for the purchase of black-market supplies of corn.14 Hence, viewing things most favorably to the petitioners, the variance of which they make so much is at best no more than from $32,000 to $57,000.15
24
We think the District Court was fully justified in finding that Huebner's testimony 'at the supplemental hearing is reasonably consistent and compatible with the testimony given by the government witnesses at the trial regarding these (black-market) payments,' and that it 'tends to corroborate Lubben's testimony.'16 Such findings, made as they were in connection with what in effect was a motion for a new trial on newly discovered evidence, must 'remain undisturbed except for most extraordinary circumstances.' United States v. Johnson, 327 U.S. 106, 111, 66 S.Ct. 464, 466, 90 L.Ed. 562. We find none here. This is not a case, as were Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1, and Communist Party of United States v. Subversive Activities Control Board, 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003, where a conviction may be regarded or is conceded to have rested on perjured testimony.17 To overturn the denial of a new trial in this case by the two lower courts would be tantamount to saying that any subsequently discovered inaccuracy in the testimony of an important trial witness, which might have affected his credibility in the eyes of the jury, would entitle a convicted defendant to a new trial. We cannot so hold.
III.
25
Petitioners next argue that the remand proceedings were the product of fraud and other gross improprieties on the part of the Government and that they should therefore be held for naught The contention has three aspects: (1) that the Government did not disclose to this Court that the testimony of three witnesses proffered in support of its motion to remand was contrary in some respects to that which they had given, or failed to give, on previous occasions; (2) that the Government failed to establish on remand that there had been any perjury on the part of the defense at the original suppression hearing, and itself suborned three of its remand witnesses to testify falsely; and (3) that the prosecution utilized the delay occasioned by the motion to remand (355 U.S. 236—237, note 6, 78 S.Ct. 248) to dragoon witnesses into testifying in support of the Government's view of things.18 We find no truth in any of these serious charges.
26
The most that could possibly be claimed respecting the absence of any reference in the remand papers to prior inconsistent statements by the proffered witnesses19 is that it was a mistake of judgment on the part of the Government not to include such a reference. But, without minimizing the unqualified duty of scrupulous candor that rests upon government counsel in all dealings with this Court, to characterize this episode as amounting to a fraud upon the Court is, to say the least, utterly extravagant.
27
The issue tendered by the motion to remand was of course not whether the Government's new evidence was true or false, but whether it warranted a reexamination of the suppression issue by the District Court. The evaluation of this evidence, including the credibility of the three witnesses in question, was as this Court recognized (355 U.S., at 241, 244—245, 78 S.Ct. at 250, 252—253) a matter for the District Court. In these circumstances it is understandable that the Government might have considered that if a remand were ordered the District Court was the appropriate forum in which to make available any impeaching material in its possession. Cf., e.g., Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103; United States v. Zborowski, 2 Cir., 271 F.2d 661. In any event the Government having fully disclosed all such material in the trial court, and that court having taken it into account in making its findings, infra, p. 360, it would be captious to hold that the failure to advert to it in this Court now vitiates the remand.
28
The claim that the remand should be set aside because no perjury was found in connection with the petitioners' original testimony relating to the disclosure both misconceives the terms of the remand and misportrays the record. Our remand did not have the narrow compass attributed to it, but broadly directed the District Court to reexamine the whole disclosure episode (355 U.S., at 245—246, 78 S.Ct., at 253—254)—a direction to which the proceedings below were entirely responsive. And the District Court plainly found that the course and nature of the disclosure had been deliberately misrepresented by petitioners in significant respects at the earlier suppression hearing.20 On the other side of the coin the District Court. after full and painstaking consideration, found that the facts, except in one particular, were as anticipatorily represented in the Government's remand papers, and that Huebner, Graflund and Lima (note 19) had testified honestly.21 It is certainly not for us to reassess their credibility.
29
Finally, as to the Government's alleged dragooning of these witnesses, it appears that in connection with a new grand jury investigation that was conducted from April 1956 to February 1957 into these same black-market transactions (resulting in a further indictment against these individual petitioners and others), Graflund Huebner, and Lima, among some 64 witnesses, were called for questioning on more than one occasion. But there is nothing in this record to indicate that these repetitive appearances were oppressive or that any of their questioning was attended by improper methods of interrogation.22 And the District Court, after elaborate exploration, found the charges of prosecutorial overreaching baseless.23
30
We now leave the remand proceedings and turn to the only two challenges pressed here with respect to the main case itself.
IV.
31
In March 1958, more than four years after the trial, petitioners filed amended motions attacking the grand and petit jury arrays. These motions, predicated on 'newly discovered evidence,' alleged that both juries were illegally constituted because the jury commissioner delegated his selection duties to one of his private employees; volunteers were permitted to serve on the juries; and the Clerk of the District Court failed to employ a selection method designed to secure a cross-section of the population.
32
We think, as the two lower courts did, that petitioners have lost these objections by years of inaction. Rule 12(b)(2) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. provides: 'Defenses and objections based on defects in the institution of the prosecution or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. * * * Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver.' Petitioners concede, as they must, that this Rule applies to their objection to the grand jury array,24 but deny that it applies to their objection to the petit jury array. On the latter point we do not agree. In Frazier v. United States, 335 U.S. 497, 503, 69 S.Ct. 201, 205, 93 L.Ed. 187, this Court stated that a challenge to the method of selecting the petit jury panel comes too late when not made before trial. And the lower federal courts have uniformly held that an objection to the petit jury array is not timely if it is first raised after verdict. See, e.g., Hanratty v. United States, 5 Cir., 218 F.2d 358, 359, cert. denied, 349 U.S. 928, 75 S.Ct. 770, 99 L.Ed. 1259; United States v. Klock, 2 Cir., 210 F.2d 217, 220; Higgins v. United States, 81 U.S.App.D.C. 371, 160 F.2d 222, 223, cert. denied, 331 U.S. 822, 67 S.Ct. 1304, 91 L.Ed. 1839; United States v. Peterson, D.C., 24 F.Supp. 470.
33
Petitioners have not advanced any reasons for overturning this settled course of decision. Rather they argue that when public officials violate constitutional rights by actions whose illegality is not readily noticeable by the litigants or their counsel, sufficient cause has been shown to warrant relief from application of the Rule. Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181, is said to stand for the broad proposition that technical rules of procedure do not prevent this Court from considering the merits of a basic challenge to the method of jury selection.
34
In the circumstances of this case, petitioners' contentions are without foundation. In denying the motions the District Court found that the facts concerning the selection of the grand and petit juries were notorious and available to petitioners in the exercise of due diligence before the trial. The same method of selecting jurors in the district had been followed by the clerk and the jury commissioner for years. Inquiry as to the system employed could have been made at any time. Indeed, the acceptance of volunteers for the juries had received publicity in the newspapers, and their presence on the petit jury could have been ascertained at the time it was constituted. And Ballard lends no support to petitioners' position, for in that case the challenge to the jury panel had been timely made and preserved. See 329 U.S., at 190, 67 S.Ct., at 262.
35
Finally, both courts below have found that petitioners were not prejudiced in any way by the alleged illegalities in the selection of the juries. Nor do petitioners point to any resulting prejudice.25 In Ballard it was said (at p. 195, 67 S.Ct. at p. 265) that 'reversible error does not depend on a showing of prejudice in an individual case.' However, where, as here, objection to the jury selection has not been timely raised under Rule 12(b)(2), it is entirely proper to take absence of prejudice into account in determining whether a sufficient showing has been made to warrant relief from the effect of that Rule.
36
We need express no opinion on the propriety of the practices attacked. It is enough to say that we find no error in the two lower courts' holding that the objection has been lost.
V.
37
Petitioner Sullivan contends that he was denied a fair trial in two respects: (1) the only specific evidence against him was an alleged admission which Lubben testified Sullivan made to him testimony which Lubben, it is asserted, later recanted; and (2) the trial judge's instructions allowed the jury to consider evidence that had not been admitted against him.
38
At one point in the trial Lubben testified that, to the best of his recollection, he had a conversation with Sullivan on or about February 14, 1946, concerning the advisability of paying the black-market overages by check. According to Lubben: Sullivan asked 'Are you sure this (the payment) is not appearing on your books any place?' Sullivan then proceeded to state: 'Well, Dave, you know how it is. You have a place in New Jersey, a farm in New Jersey. This money I have been using in my farm. * * * I am getting a new driveway * * * put in. * * * That is the only way I can do it today, with the tax situations the way they are.' When the trial resumed the following day, Lubben volunteered a correction of his previous testimony, stating that the conversation had taken place as described but not on February 14, 1946; it had occurred, he thought, 'some time around September or October of 1946.' It is apparent, therefore, that the substance of the testimony was not recanted.
39
There was, moreover, additional testimony against this petitioner. Sullivan himself admitted at the trial that he had knowledge of the Shotwell black- market receipts, maintaining, however, that the money was used solely for the purchase of black-market supplies. But Roeser, comptroller of Shotwell, testified that, when directed, he turned over cash moneys received from Lubben to Cain, Huebner, and Sullivan. Ericson, shipping superintendent of Shotwell in 1945 and 1946, stated that although his memory was not clear as to the particular officials present when the devious method of shipping black-market candy to Lubben was inaugurated,26 he would not have shipped in this way without instructions from Cain, Sullivan, or Huebner. And Sullivan's own answers on cross-examination respecting his knowledge of the necessity for keeping the Lubben black-market transactions off Shotwell's books were, to say the least, highly equivocal.27
40
The foregoing evidence, coupled with Sullivan's status as executive vice-president of Shotwell and his general prominence at the policy level of the company's affairs, was amply sufficient to carry the case as to him to the jury and to support its verdict of guilt.
41
The trial judge repeatedly cautioned the jury throughout the trial that certain evidence, particularly the disclosure documents turned over to the Treasury, was not being admitted against Sullivan and should not be considered against him. It is claimed, however, that the court's instructions nevertheless allowed the jury to consider such evidence. The allegedly erroneous portion of the charge states:
42
'You have heard the testimony regarding Cain's alleged admission as to the falsity or incompleteness of these tax returns, and his explanation as to why, in his opinion, at the time he assumed they were false and inaccurate.
43
'There has also been received in evidence work sheets and data compiled by Mr. Busby, and certain data compiled by Mr. Cain with respect to an alleged tentative compilation of the overages, and the disposition of such receipts by Shotwell, for raw materials, and the nature and character of the disposition, which was allegedly made.
44
'All of the testimony should be considered by you, that is, all that testimony should be considered by you in view of the circumstances, and understanding of the parties in so far as it may bear upon any intent of the parties to wilfully violate the income tax laws or their good faith, or lack of good faith in the matter.'
45
This instruction must be read in context. Shortly after it was given, the court proceeded to charge:
46
'Any statement or act of any of the defendants not in the presence of another defendant is not binding upon the absent defendants, even though one or more of the defendants were mentioned in the converstaion, nor are such matters competent evidence against any other defendant not present. I have limited, you will observe, certain evidence during the trial, from time to time, as being competent only as to certain defendant or defendants, that is, by way of example, what Mr. Huebner, or Mr. Cain may have said or done in the absence of Mr. Sullivan, would not be binding or competent as to Mr. Sullivan.'
47
This limiting instruction is clear. It must be presumed that the jury conscientiously observed it. United States v. Harris, 7 Cir., 211 F.2d 656, 659, cert. denied, 348 U.S. 822, 75 S.Ct. 34, 99 L.Ed. 648. Surely it would have been impracticable for the trial judge, as he discussed the evidence in his final instructions, to have reminded the jury with respect to each of the many items of proof mentioned that it had been admitted only against certain named defendants and should not be considered against the others. We find no error in the charge.
48
The judgment of the Court of Appeals as to all petitioners must be affirmed.
49
Affirmed.
50
Mr. Justice BLACK, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.
51
I think these criminal convictions should be reversed and a new trial granted because of serious errors denying the defendants the protection of two constitutional guarantees for a fair trial.
52
First. The jury verdicts rest in part on confessions obtained from the defendants by governmental promises of immunity from criminal prosecution, in violation of the Fifth Amendment.
53
Second. If the Government's chief witness on the remand hearing gave truthful testimony, the jury's conviction of the defendants rests in substantial part on false testimony of the Government's chief trial witness.
54
An understanding of these two questions requires a statement of the circumstances out of which they arise. The Shotwell Manufacturing Company and its principal officers were convicted in Federal District Court of willfully attempting to evade Shotwell's corporate income taxes for the years 1945 and 1946. The most damaging evidence the Government had against the defendants consisted of confessions of the individual defendants that they had failed to report certain amounts of the corporation's 1945 1946 income. The Government also offered data it obtained from the books and records of the corporate defendant after these confessions were made. At the time these confessions were given, the Treasury Department had in effect its widely publicized and proclaimed 'voluntary disclosure policy,' which, according to Secretary of the Treasury Vinson, promised immunity from prosecution to any tax evader, even a 'willful evader,' 'who makes a disclosure before an investigation is under way.'1 This whole record shows beyond doubt that before any investigation of them had been initiated the defendants learned of the Treasury's promise and disclosed their failure to report income with the full expectation of receiving the benefits of the promise. Moreover, they made their confessions and made the data available only after assurances of a Chief Deputy Collector that 'if the disclosure (was) timely and the facts * * * related to him were correct, he saw no reason why the immunity policy of the Bureau should not be applied in this particular matter.' After the defendants, solely in reliance on the policy, had voluntarily given government agents enough evidence to show a failure to report a substantial part of Shotwell's 1945—1946 income, the Government nevertheless refused the promised immunity and secured the indictments on which these prosecutions are based. Charging that the court should not permit the Government to reap advantage from broken promises but should compel it to grant the promised immunity, the defendants filed motions to dismiss the indictments. The court refused to dismiss, however, holding that since the Treasury Department's promises of immunity were not authorized by statute, the Government was not legally bound to keep these promises and could therefore break faith with its taxpayers whenever it chose to do so. Having been denied the promised immunity, the defendants then moved to suppress their confessions, the incriminating documentary evidence which they had specially prepared and delivered to Treasury agents, and all data compiled by the Treasury from books and records made available by the defendants during the time the Government was leading them to believe that they would be granted the immunity as promised. The ground for the motion to suppress was that since the confessions had been obtained by promises of immunity their use would violate the Fifth Amendment's prohibition against compelling a person to be a witness against himself. The District Court refused to suppress, but the Court of Appeals reversed the convictions because they were based partly on the confessions and documents.2 While the Government's application for certiorari was pending before us, the Government filed motions asking us to delay consideration of its application. The Government alleged that, since the convictions, it had obtained evidence indicating that the defendants and a government official had given perjured testimony about the timeliness and complete truthfulness of the disclosures. Later, we were asked to remand the whole case to the district judge for him to give new consideration to the motion to suppress, the grounds for this motion being that the Government had new evidence in the form of affidavits tending to show that the defendants' disclosure of their tax derelictions had neither been 'timely' nor 'in good faith.' The Government claimed to have affidavits showing (1) the disclosures were not 'timely' because they had not been made until after an investigation had been initiated by the Government and (2) the disclosures were not 'in good faith' because the defendants had denied their guilt of criminal tax evasion. This Court granted the motion and remanded the case3 over a dissent which in part took the position that the alleged new facts bore directly on the guilt or innocence of the defendants and that the defendants were entitled to have this evidence submitted to a jury instead of to a trial judge. On remand the evidence offered by the Government before the trial judge utterly failed to support the Government's charge that the defendants were guilty of perjury in testifying that their disclosures to the Treasury Department were made before any investigation had been initiated. As to the second charge that the defendants did not act in good faith because they denied their guilt, the trial judge found with the Government. It is of great importance, however, that the chief government witness on remand (Huebner) testified that the chief government witness at the trial before the jury (Lubben) had lied to the jury in giving evidence which the record shows was crucial to the jury's finding of guilt. Although the district judge was compelled to find from the record that it was 'entirely probable' that this government witness Lubben had 'exaggerated' in giving testimony before the jury, he nevertheless reaffirmed his refusal to suppress the incriminating evidence and also denied a motion for a new trial because he thought the defendants were guilty anyway and there would therefore be no 'miscarriage of justice' in denying them a new trial before a new jury to hear the new evidence. This time the Court of Appeals affirmed.4 It is out of this situation that the two issues arise, the rights protected by the Fifth Amendment, and the right to a fair trial before a jury.
I.
55
I think the Court of Appeals was wrong in affirming the refusal to suppress but was right the first time when it held that the use of these confessions induced by the Government's promise of immunity 'was a violation of each defendant's privilege against being compelled in any criminal case to be a witness against himself, as guaranteed by the Fifth Amendment to the constitution of the United States.'5
56
'The constitutional test for admission of an accused's confession in federal courts for a long time has been whether it was made 'freely, voluntarily and without compulsion or inducement of any sort."6 Confessions of guilt 'are inadmissible if made under any threat, promise, or encouragement of any hope or favor.'7 This Court's leading discussion of the admissibility of confessions, admissions, and incriminating statements both at common law and under the Fifth Amendment is contained in Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897). That opinion written by Mr. Justice White traces the development of the prohibitions against the use of involuntary confessions both in England and in this country. It concludes that in United States courts,
57
'the issue is controlled by that portion of the fifth amendment to the constitution of the United States commanding that no person 'shall be compelled in any criminal case to be a witness against himself." 168 U.S., at 542, 18 S.Ct., at 187.
58
To explain what confessions are admissible under the Fifth Amendment because not 'compelled,' the Court quoted and adopted this passage from 3 Russell on Crimes 478 (6th ed.):
59
"But a confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight * * *. A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted." 168 U.S., at 542—543, 18 S.Ct., at 187. See, to the same effect, Wilson v. United States, 162 U.S. 613, 622, 16 S.Ct. 895, 899, 40 L.Ed. 1090 (1896).
60
Thus it was clearly pointed out that a 'compelled' confession within the Fifth Amendment's meaning is one induced either by fear of injury or hope of reward. In order to emphasize this conclusion, the Court in Bram, time after time, repeated for itself or quoted with approval prior statements that confessions to be 'free and voluntary' must not have been induced or influenced by 'hope or fear,'8 'compulsion * * * physical or moral,'9 'threat or inducement,'10 or by 'any inducement.'11 A careful reading of the Bram opinion can leave no doubt that a proper interpretation of the Fifth Amendment, according to that case, would prohibit the Government's use of a confessioninduced by a hope of immunity such as that solemnly held out by the Government here just as much as it would bar use of a confession obtained by violence or threats of violence. And no one of these statements, which the Court professes today to accept, leaves this Court with the slightest freedom to invent exceptions to the Fifth Amendment rule that confessions so induced are inadmissible. Not only has the Bram case been repeatedly cited with approval by this Court12 but also its declaration that confessions are equally involuntary whether obtained by hope or fear is in harmony with the rule that has obtained in a majority of the state courts for more than a century.13 Indeed, it is a commonplace, known perhaps to any lawyer who has ever tried half a dozen criminal cases, that before offering a confession against a defendant a proper predicate must be laid, that is, proof that the confession was not the result of any threat or promise of reward.14
61
The continuing vitality of the Fifth Amendment's protection as defined in Bram was specifically recognized in Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954), which involved circumstances startlingly like those in this case. Smith was prosecuted for attempted tax evasion. He contended that a confession of his should not have been admitted into evidence because he gave it on an understanding with a government agent that he would be granted immunity. Smith's accountant testified that the agent had promised this immunity and that the data showing guilt would not have been given had these governmental promises not been made. The trial judge submitted this issue to the jury with the instruction that it should reject the confession if 'trickery, fraud or deceit' had been 'practiced on petitioner or his accountant.' This Court held that on those facts the issue was properly submitted to the jury and that 'the jury, in arriving at its general verdict (of guilt), could have found from the conflicting evidence that no fraudulent inducement had been offered petitioner or his accountant.' 348 U.S., at 151, 75 S.Ct., at 196. In the present case, the undisputed evidence given both by the Government's tax agent himself and by defendants' accountant was that the agent had assured the defendants that the Government's general policy of immunity would be applicable to them. The Circuit Court found as a fact that this promise was made by the government agent.15 On remand, the District Court found it 'entirely probable' that the promise had been made. The Court of Appeals in its second opinion did not disturb its earlier findings, and indeed no one, not even the Government or this Court, appears to challenge these findings. Thus, the facts proved in this case would, had they been present in the Smith case, have resulted in the exclusion of Smith's incriminating statement as 'trickery, fraud or deceit.'16
62
Although the Court purports to accept the Bram holding that the Fifth Amendment of itself forbids the use of a defendant's confession 'obtained by any direct or implied promises, however slight,' its opinion most decidedly rejects this interpretation of the Amendment. The rejection lies mainly in the Court's attempt to prove what I deem to be the unprovable, namely, that although these confessions 'might not been made in the absence of the Treasury's offer' of immunity, they nevertheless were not induced or influenced by that offer. In order to reach its astonishing conclusion, the Court uses various alternative formulas, each of which in turn lops off a significant part of the protections the Fifth Amendment has always been thought to afford.
63
The Court says that because the Secretary of the Treasury addressed his promise of immunity 'to the public generally and not to particular individuals' the Fifth Amendment leaves the Government wholly free to use all confessions induced by this general device. Certainly this excuse for denying the protection of the Fifth Amendment cannot be inferred either from the language of the Amendment or from anyithing said in the Bram case. It is impossible for me to understand why a confession obtained by promises addressed to the public generally is any more 'voluntary' than one obtained by promises addressed to identified tax payers known or suspected to be delinquent. Indeed, a general promise of immunity announced by a member of the President's Cabinet is likely to be far more authoritative and compelling than is an isolated promise by a subordinate official. Surely the Government cannot escape the command of the Fifth Amendment not to use government-induced confessions simply by multiplying the number of people who are promised immunity. Moreover, even if specific statements to individuals are required, the confessions in this case would still be barred by the Fifth Amendment. This is because, as has been pointed out, a Chief Deputy Collector for the Government assured the defendants' accountant that he saw no reason why their disclosures should not entitle them to immunity under the general policy.
64
The Court also seems to state that the Fifth Amendment does not bar the admission of confessions induced by promises of immunity unless given while under suspicion of crime in response to a specific promise by a particular officer like a policeman. There is no support for this in the Bram case. The Court in that case, in stating that a confession induced by a promise, however slight, was involuntary and therefore inadmissible under the Fifth Amendment, in no way intimated that the fact of involuntariness depends upon the presence of a policeman or upon any circumstance other than that a promise has been made which induced a confession. It seems to me that a taxpayer, uneasy about possible criminal prosecution and worried about its destructive effect on his family, reputation, and business, would be susceptible to an official promise of immunity just as any other person fearful of prosecution for some other offense.17 And if independent coercive circumstances—like the presence of policeman, with or without club—are necessary to bar the use of a confession, as the Court indicates, then the Court is denying that a promise by itself, no matter how authoritative, can ever result in a compelled confession prohibited by the Fifth Amendment.
65
The Court concludes that 'the voluntary disclosure policy left (petitioners) wholly free to disclose or not as they pleased. In choosing to act as they did, petitioners, far from being the victims of that policy, were volunteers for its benefits.' Labeling petitioners as 'volunteers' proves nothing. Of course they were 'volunteers.' It was to get 'volunteers' that the Government established the policy. Petitioners learned that their Government had promised immunity for disclosures and they volunteered to make them because of that promise. But petitioners' confessions are no more 'voluntary'—in the sense of not being induced by a promise—than those of suspects who choose to accept the benefits of a policeman's promise of immunity rather than to run the risk of being convicted on independently secured evidence. The Court's interpretation of the Fifth Amendment as permitting the use of confessions obtained by promises because those who relied on the promises were 'volunteers' effectively scuttles the protection of that Amendment.
66
While the Court uses language which purports to give the same full scope that Bram did to 'jealously guarded constitutional principles' of the Fifth Amendment, it is with regret that I am compelled to say that I think the Court promises more than it performs. The Court treats the cases of Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961), and Bram v. United States, supra, as if both were rested on the Fifth Amendment. Rogers, however, related to a confession used in a state court, the admissibility of which depended on the Due Process Clause of the Fourteenth Amendment. While some of us believe that the Due Process Clause made the Fifth Amendment applicable to the States, Rogers was obviously written on the premise that the Due Process Clause forbids the use of confessions only if the circumstances under which they are used are so offensive or unreasonable as to 'shock the conscience' or offend 'civilized standards of decency.'18 Bram, on the other hand, rested exclusively on an interpretation of the Fifth Amendment's specific language forbidding the Government to compel a defendant to be a witness against himself. This distinction is important because the more precise words of the Fifth Amendment as construed in Bram are a far more certain safeguard against the use of compelled confessions than the tractable and pliable protections which the Court may or may not afford under the due process 'shock the conscience' test. The Fifth Amendment, as construed in Bram and as recognized in Smith v. United States, supra, forbids the use of confessions obtained by governmental promises of immunity on the theory that such promises alone render confessions involuntary without requiring the presence of any other coercive circumstances.19 Moreover, if the admissibility of the confession is to be measured by standards of decency it is difficult to reconcile with those standards a holding that the Constitution forbids the Government to use a confession induced by the promise of a police officer or other subordinate agent but that it is wholly permissible to use a confession induced by the Secretary of the Treasury, one of the highest-ranking men in the Government. I cannot deny that such a standard for governmental conduct shocks my conscience. This is particularly true when I consider the nature of the assurances solemnly given to delinquent taxpayers by Secretary of the Treasury Fred M. Vinson, who later became Chief Justice of the United States. He said that the
67
'man who makes a disclosure before an investigation is under way protects himself and his family from the stigma of a felony conviction. And there is nothing complicated about going to a collector or other revenue officer and simply saying, 'There is something wrong with my return and I want to straighten it out."20
68
This simple description of all the taxpayer had to do save himself and his family from the stigma of a prosecution is no longer recognizable in the ex post facto quagmire of complicated restrictions and conditions created by the Court today.
69
Another theory of the Court, which also departs from the Bram case, seems to be that there was a constructive withdrawal of the promised immunity because of the Court's findings that the defendants failed to comply with the promise's condition of complete truthfulness. With this legal fiction as a premise, the Court moves inexorably to the conclusion that the confessions were not induced by any promise to the defendants. Nothing that I can find in the record after a careful reading furnishes a basis for the most attenuated inference that these defendants would have come forward and disclosed any tax derelictions had the Government not announced its voluntary disclosure policy and made it clear that these particular defendants could expect its benefits. The Court is here departing from the proper test as laid down in Bram for determining whether a disclosure is induced by a governmental promise. It was there said that a person is 'involuntarily impelled to make a statement when but for the improper influences he would have remained silent.' 168 U.S., at 549, 18 S.Ct., at 189. But for the immunity promised to the defendants in this case, it is inconceivable that they would have volunteered evidence upon which they could be tried and perhaps convicted of tax evasion. Moreover, every promise held out by the Government is intended to be conditined on full and truthful disclosure. The majority's rule would require that any confession obtained by a governmental promise be admitted if it contains something less than the whole truth.
70
What the Court is in fact holding here is that the defendants should be denied their right to have their confessions excluded because while the confessions were in part truthful they were not truthful as a whole.21 This Court has held under the Due Process Clause of the Fourteenth Amendment that a confession's truth or falsity is not relevant to the question of its admissibility.22 I do not believe the Court should adopt a new Fifth Amendment shrinking device under which a defendant's lack of 'good faith' and failure to be 100% truthful in his induced confession works a forfeiture of his Fifth Amendment rights. Probably few confessions in criminal cases are ever wholly truthful. Even a cursory examination of such cases in this and other countries would show that defendants who confess nearly always lay all the blame possible on someone else or in some way seek to justify their conduct in whole or in part.23 Certainly this Court could not, consistently with its prior cases, hold admissible a confession obtained by a promise or threat from a person who confessed that he had assaulted another but falsely and fraudulently claimed that he had done so in self-defense. Nor could it admit the confession of a person suspected of receiving stolen goods who, after beatings, admitted possession of the goods but falsely claimed he did not know they were stolen. Yet, by the majority's view here, such compelled confessions will be admissible because, being partly false, they are 'fraudulent,' not made in 'good faith.' This is the first time, to my knowledge, that a defendant's constitutional right not to be compelled to be a witness against himself has even been conditioned on his failure to come into court with 'clean hands.' I cannot agree to this new doctrine that a compelled confession can be admitted because partly untruthful. Such a step backwards is particularly dangerous because of the ease with which this case can be extended to admit confessions obtained not by physical violence or threats of violence but by more 'civilized' techniques of compulsion, which we have characterized as inherently coercive24—techniques of physical exhaustion, phychological pressure, trickery, promises of leniency, and the like which sometimes subtly but always certainly undermine an accused's freedom to confess or not, as he chooses.25
71
To my way of thinking, it is the Court itself, instead of the defendants, which turns 'an important constitutional principle upside down.' It does this by permitting the Government to prove its case with confessions obtained by solemn promises of immunity on the theory that the confessions were not given in 'good faith' and were therefore fraudulent. This conclusion is based on a finding that, while the defendants confessed a failure to report income, they falsely stated at the same time that their receipts were offset by business expenditures. In short, the Court believes that the defendants are guilty of the tax evasion charged and therefore have forfeited their Fifth Amendment rights. I cannot agree that the Court is right in making the admissibility of the confessions turn on the guilt or innocence of the defendants. The denial of the benefits of the Fifth Amendment on the Court's belief that the defendants are guilty is a high price to pay for a conviction and a new, dangerous inroad on the protections of that Amendment. But if this is to be the standard, then I can see no escape from the conclusion that the admissibility of the confessions should ultimately be determined by a jury—not by the judges of this or any other court.26 Moreover, if it be assumed that the Court is correct in concluding that these defendants have been guilty of fraud or perjury in their confessions, then under normal ideas of due process the proper procedure would be to indict them on these charges and let them be tried. But this Court should not use its judgment of the defendants' guilt of any crimes as an excuse for depriving them of the constitutional guarantees of the Bill of Rights.
72
Whatever the Court's reasons for affirming this judgment, it is plain that Smith v. United States, supra, has been undermined, the Bram case has been practically repudiated, and, worse still, the Fifth Amendment's prohibition against involuntary confessions has become far less of a constitutional protection than it ever was before. There is no basis in the Amendment itself for reducing its scope as the Court does today, and no precedent, weak or strong, old or new, can be found to support it. It is this Court's own investion. This Court alone therefore, this 14th day of January 1963, is entitled to whatever credit is due for enfeebling our Bill of Rights in this way. It earns that credit by ignoring the wise and solemn warning given in Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746 (1886):
73
'It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.'
74
To construe the Fifth Amendment's prohibition against the use of compelled testimony as not protecting these confessions induced by promises of immunity is certainly no liberal construction of that part of our Bill of Rights. I cannot agree to this holding because I still believe that constitutional provisions designed to protect individual liberty from oppressive procedural tactics by government should be liberally construed in order to prevent their erosion and obliteration by insidious Legislative, Executive, and Judicial encroachments.27 The Court's holding today will probably give great aid and comfort to many earnest people who sincerely believe that this provision of the Fifth Amendment against the use of government-induced confessions is an unworthy barnacle on the law, a sixteenth century strait jacket, which should be removed as an outworn technicality of a bygone age. Even if this is a sound view, which I do not believe, it should not be put into effect by judicial decisions like this gradually narrowing the protective scope of that Amendment but only by the constitutionally ordained amending process so that the people of this Nation can determine for themselves whether they wish to abandon this part of their heritage of freedom.
II.
75
Since the record now contains new testimony offered by the Government on remand which thoroughly discredits the Government's main trial witness upon whose testimony the jury's verdict of guilty in large part rested, the defendants are being denied their constitutional right to a fair jury trial by the failure to grant them a new trial before a new jury which can hear this new evidence in determining their guilt or innocence.
76
This extraordinary situation arises out of the following circumstances:
77
Shotwell Manufacturing Company was in the candy business. During the O.P.A. days it sold candy at over-the -ceiling prices to companies wholly or in part operated by one Lubben. Shotwell did not report as income the amount by which the price it received exceeded the O.P.A. ceiling. The defendants claimed in their confessions and at their trial that they had to make these over-ceiling charges for candy to compensate for over-ceiling prices they paid for corn used in making corn syrup and other by-products necessary to the operation of their candy factory. The defendants' defense, therefore, was that all the overages paid to Shotwell by Lubben and his companies were paid out by Shotwell for raw corn and that, since the unreported income was virtually offset by unreported expenses, they were not guilty of the tax violations charged. The trial judge agreed with this view of the law and charged the jury that defendants were not guilty if the unreported income from candy was offset by unreported expenditures for corn. The crucial questions for the jury to determine, therefore, were how much money was paid by Lubben for candy and how much was paid by Shotwell for corn. The Government relied chiefly on the testimony and records of Lubben himself to show how much he had paid Shotwell. Thus, Lubben's truthfulness was a vital issue for the jury to consider. The prosecutor in addressing the jury vouched for the reliability of Lubben as an 'honest, honorable American citizen,'28 the trial judge in passing sentence stated that he believed Lubben was telling the truth and that the 12 jurors had believed Lubben, and most importantly, it is clear that Lubben's testimony before the jury was significant and weighty evidence tending to peg the overpayments to Shotwell at a high level—well above the amount defendants claimed they received—and thus buttress a jury finding that more over-ceiling money was paid in for candy than went out for corn.
78
When this case was brought here the first time by the Government to secure reversal of the Court of Appeals holding that the Fifth Amendment rights of the defendants had been violated, the case was remanded because the Government presented 'new evidence' in the form of affidavits which tended to show that the individual defendants had given perjurious testimony at the suppression hearing.29 The District Court was instructed to hold new hearings and to make new findings of fact on the timeliness of the defendants' disclosure of unreported income and on the 'good faith' of the defendants in so disclosing. At these hearings on remand, the Government's star witness was one Huebner, a former Shotwell officer, who was supposed to have received most of the payments made to Shotwell by Lubben. Huebner testified that he thought Lubben had 'lied on the stand' at the trial before the jury. Specifically, he stated that when Lubben recounted an instance in which he had paid one Shotwell officer $49,000, 'it was a mistake on Lubben's part,' that the officer had never received $49,000. Again, Huebner testified that no overages had been paid on some chocolate-covered nuts on which Lubben had claimed to have paid 'in the neighborhood of $40,000.' Huebner also testified, and there is other evidence in the record tending to show,30 that one Tobias said he had helped Lubben doctor his books which were used against the defendants at the trial. In his written opinion, at the conclusion of the hearing, the judge admitted:
79
'* * * that Lubben may have exaggerated the amounts of the payments that he and his confederates made to Shotwell is entirely probable.'
80
Although the judge made this finding, as the record compelled him to find, he nevertheless refused to grant the defendants a new trial before a new jury because he believed the other evidence proved the defendants guilty and that there had therefore been no 'miscarriage of justice.'
81
The effect of this action by the judge was to deny the defendants the right to have their guilt or innocence determined by a jury from all the evidence, including this new evidence discovered by the Government itself which so seriously impeaches the credibility of the main witness upon whose testimony the jury's verdicts of guilty rested. Those verdicts have now been shown to be tainted, somewhat like the verdict in Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956). While that case was pending here on certiorari, the Government called our attention to the fact that one of the seven witnesses who had testified against the defendants had lied in other proceedings subsequent to the defendants' convictions. The Government insisted, however, that the witness' testimony had been truthful in its case and on that basis objected to the granting of a new trial but recommended a remand to the trial judge to determine whether the witness had in fact been truthful. We rejected that recommendation and held that the new evidence which undermined the credibility of the witness and which was produced by the Government itself required a new trial because the defendants' trial had become fatally tainted by these new disclosures. In the present case, after the defendants had been convicted, the Government came forward with evidence tending to show not merely that one among many witnesses but that its major witness had lied, not in other proceedings but on the central and determinative issue in this very case. Moreover, unlike Mesarosh, we have here an acknowledgment by the district judge that the testimony Lubben gave to the jury was probably exaggerated. In another case involving a charge by the defendants that it had discovered that the Government's witnesses were completely untrustworthy and should be accorded no credence, this Court remanded on these mere allegations in order to assure 'findings upon untainted evidence,' and said.
82
'The untainted administration of justice is certainly one of the most cherished aspects of our institutions. Its observance is one of our proudest boasts. This Court is charged with supervisory functions in relation to proceedings in the federal courts. See McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. Therefore, fastidious regard for the honor of the administration of justice requires the Court to make certain that the doing of justice be made so manifest that only irrational or perverse claims of its disregard can be asserted.' Communist Party of United States v. Subversive Activities Control Board, 351 U.S. 115, 124, 76 S.Ct. 663, 668, 100 L.Ed. 1003 (1956). Compare Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935).
83
I fear that the Court does not manifest that same 'fastidious regard for the honor of the administration of justice' when it holds today that the defendants are not entitled to a new trial even though there are strong, compelling reasons to believe that the jury in this case did not base its guilty 'findings upon untainted evidence.'
84
It is true that in refusing to order a new trial when this point was argued to it, the Court of Appeals stated that it could not say that the district judge's observation that Lubben had exaggerated amounted to a charge of perjury.31 And this Court likewise puts emphasis on the conclusion that there was no actual finding of perjury. But whether Lubben originally testified before the jury as a willful and deliberate perjurer or whether he somehow just inadvertently 'exaggerated' the amounts he claimed to have paid these defendants, the effect on the jury was the same. No human being, not even the trial judge, is capable of saying that this jury would have convicted these defendants had Lubben sworn the whole truth when the jury listened to him. Moreover, in Mesarosh the Solicitor General conceded only that he believed that a witness against defendants had given testimony in other proceedings that was 'untrue.' There was no evidence that the witness had committed perjury, and the Solicitor General specifically refused to concede that he had. This Court nevertheless held that the witness' testimony was tainted because it was untruthful, and it set the convictions aside so that the defendants could get a new trial.32 The Court here is therefore wrong in stating that the Mesarosh 'conviction may be regarded or is conceded to have rested on perjured testimony.' The Court, as I see it, is simply refusing to follow Mesarosh without saying why.
85
In refusing to remand this case for a new trial, the Court of Appeals relied on its conclusion that there was enough other innocent evidence in the record to support the conviction and on its observation that credibility of Lubben was a question for the jury.33 As stated earlier, the district judge also had denied a new trial because he was satisfied that the other evidence showed that the defendants were guilty. But again, we have held that 'it does not remove the taint for a reviewing court to find that there is ample innocent testimony to support the * * * findings.'34 Further, in Mesarosh we said, 'The district judge is not the proper agency to determine that there was sufficient evidence at the trial, other than that given by Mazzei, to sustain a conviction of any of the petitioners. Only the jury can determine what it would do on a different body of evidence, and the jury can no longer act in this case.'35 For this reason a new trial was ordered. A new trial is necessary in this case at which a jury will be privileged to hear all the relevant testimony and will be free to determine from an honest record whether these defendants are guilty. It advances nothing to say, as the Court of Appeals said, that credibility is for the jury. In this case, the new evidence offered by the government witness conclusively demonstrates that even the jury could not properly weigh credibility at the time of the trial because these damaging sworn accusations against Lubben did not exist at that time.
86
Proper respect for the fairness and integrity of our judicial system demands that these defendants not be allowed to stand convicted upon a record containing evidence, the truthfulness of which has now been so thoroughly discredited. Neither the District Court, the Court of Appeals, nor this Court should usurp the constitutional function of the jury to determine the guilt or innocence of these defendants on untainted evidence. There is only one way the defendants can be given the constitutional rights that have been denied them in this case, and that is to reverse the case and remand for a new jury trial.
87
Moreover, by granting a new trial the Court would not only assure defendants the fair trial to which they are entitled but would also make it unnecessary for the Court to reach the important, grave, and difficult Fifth Amendment questions36 discussed in Part I of this opinion. The general rule of this Court is to avoid reaching such constitutional issues when a case can be fairly disposed of on alternative grounds.37 Although I have sometimes thought the rule has been carried to 'a wholly unjustifiable extreme,'38 this case, it seems to me, offers to the strong adherents of that rule an ideal occasion for its application in the interests of justice, which would require that a new trial be granted.
1
The court also held that a 'dishonest and false disclosure cannot be held to be a timely voluntary disclosure.'
2
In its earlier decision the Court of Appeals rejected petitioners' plea in bar grounded on a claim of immunity. 225 F.2d, at 397. That claim has not been renewed in their present petition for certiorari, and in any event would not be availing in light of the findings below.
3
The Fourth Amendment is also relied on, but that Amendment is manifestly inapposite. See Centracchio v. Garrity, 1 Cir., 198 F.2d 382, 387, cert. denied, 344 U.S. 866, 73 S.Ct. 108, 97 L.Ed. 672.
4
The sufficiency of the finding as to the falsity of the expenditures is not attacked.
5
At the trial of this criminal case the District Court charged the jury that it should acquit if it believed that Shotwell's black-market receipts had been used for the purchase of black-market supplies. See 287 F.2d, at 671, note 7.
6
Address by J. P. Wenchel, Chief Counsel of the Bureau of Internal Revenue, to the Tax Executives Institute, May 14, 1947.
7
'This (the disclosure policy) presumes, of course, that the repentant taxpayer co-operates with agents of the Bureau in determining the true tax liability.' Press Release of statement by Secretary of the Treasury Snyder, May 25, 1947. (Emphasis added.) In Centracchio v. Garrity, supra, 198 F.2d at 389, former Chief Judge Magruder, writing for the First Circuit, recognized that 'it would seem that the taxpayer would have to satisfy the court that he made a voluntary, good faith disclosure of all data necessary to a correct computation of his income tax deficiencies * * *.'
8
Busby, Shotwell's auditor, testified at the trial that he was 'acquainted with the published statements of the Treasury' concerning the voluntary disclosure policy and that, in particular, he had brought to petitioners' attention the address by the Chief Counsel of the Internal Revenue Bureau quoted above in part. Cain also testified that Busby had explained the Treasury's policy to him and Sullivan. More particularly, Sauber, the Bureau's representative, testified that at the initial disclosure discussion he told Busby that Shotwell had to reconstruct the figures relating to the black-market receipts and expenditures in order to be able to file an accurate amended tax return, and that Cain had represented that 'no one in Shotwell Manufacturing Company profited by these transactions.'
9
The same considerations deprive of even colorable significance the suggestion that Sauber's 'assurances' to petitioners, on the occasion of their preliminary inquiry respecting the availability of the Treasury's disclosure policy to an unknown taxpayer in Shotwell's circumstances, should be deemed sufficient to bring their Fifth Amendment claim within the Bram test. For apart from the fact that such assurances were no more than an affirmation of the terms of the published disclosure policy of which petitioners were then already well aware, it is clear that what Sauber said was expressly conditioned not merely on a disclosure being 'timely' but also on the premise that 'the facts * * * (then hypothetically) related to him were correct.' As already shown, the falsity of Shotwell's offsetting black-market disbursements was never revealed.
10
A quite different case would be presented if an offer of immunity had been specifically directed to petitioners in the context of an investigation, accusation, or prosecution. A disclosure made in such circumstances would not have fallen under the voluntary disclosure policy, which by definition was applicable only to disclosures made before any investigation had commenced, and would have been inadmissible in evidence under the Bram test. Under the rule of Rogers v. Richmond, supra, the truth or falsity of such a disclosure would then be irrelevant to the question ofits admissibility. We agree that the rule of that case, involving a state trial, is equally applicable in a federal prosecution.
The case would also be different had the petitioners, acting under the voluntary disclosure policy, made an honest disclosure. Whether or not different constitutional principles or other considerations would then prevent the Government from reneging on its promise by using such material as evidence in a criminal trial need not now be decided. Cf. Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192.
11
The following is the full text of this portion of the District Court's opinion: 'Some fourteen years have elapsed since the black-market operations of Shotwell took place. No record was kept by Shotwell or any of its officials as to the premium moneys paid by Lubben and his companies during the years in question. It is conceded that thousands of dollars were paid to Shotwell by Lubben and his representatives as black-market payments on candy sold to Lubben and his companies during 1945 and 1946 without any attempt on the part of Shotwell to make any written record thereof. Consequently, it is perfectly understandable that when a witness like Huebner attempts to recount the some sixteen instances when he received substantial sums of money on behalf of Shotwell as over-ceiling payments on
candy sold by that company, the amounts and circumstances as to the disposition of the money may not be too clear in his memory. However, the testimony he has given at the supplemental hearing is reasonably consistent and compatible with the testimony given by the government witnesses at the trial regarding these payments. Huebner did not take the stand at the first supplemental hearing nor during the trial; hence, his testimony as to the amounts of money received and the siphoning of these payments to various officials of the company in many instances discloses for the first time which individuals were the recipients of Lubben's payments. However, Huebner may be mistaken as to the exact amounts of money received and when the payments were made. Moreover, that Lubben may have exaggerated the amounts of the payments that he and his confederates made to Shotwell is entirely probable. But the evidence is overwhelmingly clear that not only were substantial sums of black-market money paid to Shotwell as premium payments by Lubben during 1944, 1945 and 1946 totaling between three and four hundred thousand dollars, but also that the greater part of this so-called back-market money was appropriated by Cain, Huebner and Sullivan for their own personal use. The question of good faith does not turn on the exact amount of Lubben money Huebner, Sullivan or Cain may have received for their own personal use. That Cain personally received substantial amounts of the Lubben black-market payments and that Sullivan knew of these payments and received a certain share for his personal use, but in a lesser amount than Cain and Huebner, is fully established by the record.'
12
In addition, petitioners' 'Supplement To Motion For New Trial' alleged nine further grounds for a new trial, only one of which (the overruling of their challenge to the indicting grand jury array) is pressed here. Infra, pp. 361—364.
13
Other more particular charges against the integrity of Lubben's trial testimony are also made: (1) that Huebner had contradicted Lubben with respect to a payment of $40,000 over-ceiling prices on certain chocolate-covered nuts (but the Huebner testimony to which petitioners refer is cloudy on this score); (2) that Huebner had testified that Lubben had 'lied' with respect to a $49,000 payment to Graflund (but the record shows only that Huebner stated that he 'thought it was a mistake on Lubben's part'); (3) that Huebner had testified on cross-examination that he 'thought (Lubben) lied on the stand here' (but the record does not show in what respects Huebner thought this was so); and (4) that one Tobias, not called by either side at the suppression hearing, had altered Lubben's books, used in evidence at the trial (but the only basis for this assertion is Huebner's hearsay testimony that he had been present at the meeting where Tobias had so stated to Cain and Sullivan; moreover, this matter had already been testified to by Cain and Sullivan at the trial).
14
The record shows that the 'corn box' records had been destroyed on Cain's instructions.
15
Substantiation of the charges in the indictment did not of course depend on the precise amounts of Shotwell's black-market receipts, and the jury made no specific finding on that score, returning a general verdict.
16
Huebner's testimony, given some 14 years after the events had occurred and without the use of any records, was quite general in regard to the amounts of the payments made by Lubben; the figures were always stated in round numbers, usually preceded by a qualifying adjective. For example, he testified that 'sometime in January, 1945' he received 'between ten and eleven thousand dollars' from Lubben, and that in the 'first part of May of 1945' he received 'approximately $30,000.' In contrast, Lubben's trial testimony was precise as to the amounts paid and was supported by various documentary evidence—invoices, vouchers, book entries, recapitulation sheets, cash authorization sheets, and checks to cash. For example, Lubben testified that on May 3, 1945, he paid $22,124.13 to Huebner at the Sherman Hotel in Chicago; this testimony was supported by an expense voucher and a check to cash in that amount, both of which were put in evidence.
17
In stating this we have not been unmindful of the fact that subsequent litigation has shown Lubben's character not to be a savory one. See Giglio v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321; In re Carlsen, 17 N.J. 338, 111 A.2d 393; State v. Weleck, 34 N.J.Super. 267, 112 A.2d 23. Yet, so far as this trial is concerned, a vigorous cross-examination of him, to the tune of some 300 pages of the printed record, evidently failed to shake his credibility in the estimation of the jury.
18
At the oral argument petitioners' counsel of course disclaimed any intention of implicating the then Solicitor General, and we presume the members of his staff, in these accusations of wrongdoing.
19
The witnesses were Graflund, Shotwell's comptroller, Huebner, and Lima, a former revenue agent. Specifically, the Government is accused of concealing the following contradictions: (1) Graflund had told government investigators and the 1956 grand jury (infra, pp. 459—460) that (as he had testified at the trial) he had first disclosed the black-market transactions to Busby, Shotwell's auditor, in January 1948, although his remand affidavit stated that this conversation had taken place in June 1948; (2) Huebner, prior to executing his affidavit, had not recalled having attended a meeting with Sullivan and one Urban at the Chicago Athletic Club for the purpose of discussing a purchase of Lubben's business so as to enable petitioners to get their hands on Lubben's books and records; (3) the Government's motion indicated that Lima would testify on remand that he had prepared a report showing a Shotwell deficiency of $20,000 and then destroyed it at his supervisor's direction, but it was not revealed that in his previous testimony at the trial Lima had not mentioned the preparation of such a report.
20
In essence the defense position at the first suppression hearing had been (1) that a general disclosure had first been made to Sauber, the Bureau's representative, by Busby and Cain in late January 1948, some six months before the Bureau's Agent Krane had commenced an investigation of the Lubben-Shotwell transactions on June 21, 1948; (2) that pursuant to the January discussion with Sauber the disclosure figures had then been prepared over a period of several months and furnished to the Bureau in August 1948; and (3) that none of the Shotwell black-market receipts had been pocketed by any of the individual petitioners.
At the second suppression hearing the District Court found (1) that the Busby and Cain general disclosure had not been made in January 1948, but 'much later' than March 15, 1948, the date testified to by Sauber in the earlier proceedings, although it was before the opening of Krane' investigation on June 21, 1948; (2) that while efforts were made between January and August 1948 to get from Lubben the amounts of Shotwell's black-market receipts, the offsetting black-market supply payments were not made up until a day in July 1948 and were then 'concocted 'out of thin air," as had been represented in the Government's motion to remand; and (3) that petitioners' denials of having personally pocketed any of the black-market receipts were false.
21
The District Court found it 'very probable' that Graflund had first talked with Busby about Shotwell's black-market receipts in January 1948, contrary to his remand affidavit ((ote 19, supra) and testimony at the second suppression hearing where he fixed the date as late June 1948. The court, however, found that Graflund had given the latter date 'in good faith,' and that his error was attributable to 'lapse of time' and the probability that there had been such conversations in both January and June, Graflund having been led to discard the January date because of the 'apparent falsity of Busby's statement that he first spoke to Sauber in January , 1948.' The court further observed: 'I believe Graflund is attempting now to tell the truth as he remembers the events after the lapse of these many years.'
The court also believed Lima's testimony as described in the Government's motion to remand (note 19, supra), although it doubted whether the destroyed report was intended to represent the final disposition of the Shotwell affair. And as to Huebner, see pp. 355—356, supra.
22
Both Huebner and Graflund testified under cross-examination by petitioners' counsel that they had not been subjected to pressure of any kind.
23
The court said: 'Defendants urge that Huebner and Graflund, concerned with possible future criminal prosecution against them by the Government, and Lima, worried about his job, have wittingly or unwittingly followed the suggestions and pattern of events which zealous government officials may have attempted to inculcate. I have endeavored to make reasonable allowances for the lapse of the years which dim memories, and to give due consideration to the claim of the defendants as to the interest of the revenue officers, and perhaps others, to encourage these witnesses to follow a chronology of events and circumstances which may support the Government's contentions as to what occurred during the years in question. However, I do not believe that any government official has attempted to have any witness herein testify falsely.' And the court further observed: 'The forthright attitude of government counsel to submit all prior statements and Grand Jury testimony of Huebner and Graflund to defendants' counsel indicates a commendable frankness in affording the Court all of the background which may bear upon their veracity.'
24
See Scales v. United States, 367 U.S. 203, 259, 81 S.Ct. 1469, 1501, 6 L.Ed.2d 782; United States v. Clancy, 7 Cir., 276 F.2d 617, 631, rev'd on other grounds, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574; Miranda v. United States, 1 Cir., 255 F.2d 9, 16.
25
It is not suggested that the contentions made here go to the individual qualifications of any seated grand or petit juror.
26
When shipping candy to Lubben, the name 'ABC Company' was entered on the bills of lading as the shipper instead of Shotwell.
27
'Q. Didn't you know it (Lubben payments) would have to be kept off the books or the OPA investigators would locate it?
'A. That was true after—that wasn't true after June of 1945 when the OPA went off, or am I right—1946, June 30th.
'Q. How about the period prior to that?
'A. Certainly it had to be kept off the books or you would be subject to perhaps additional trouble. I know that now. I didn't know it then, I don't believe.
'Q. Well, are you sure?
'A. Am I sure about what?
'Q. You said you don't believe you knew it then. Are you sure you didn't know it then?
'A. I don't ever remember discussing it. I am not positive.
'Q. Of course you knew that if it was off the books for OPA purposes, it was also off the books for Internal Revenue purposes, didn't you?
'A. Not necessarily. Not necessarily.'
1
Hearings on Proposals for Strengthening Tax Administration before a Subcommittee of the House Committee on Ways and Means, 82d Cong., 2d Sess. 143—144 (1952) (statement of Secretary Vinson, reprinted from Washington Post, Aug. 21, 1945). Some form of voluntary disclosure policy had existed since 1919. In 1945, however, the policy took the form of a clear and direct invitation to taxpayers to come forward and disclose their tax derelictions in reliance on the Government's unequivocal promise of immunity. Hearings, supra, at 78—79 (Press Release of Treasury Department, Dec. 11, 1951). Secretary Vinson's statement 'crystallized' the earlier practice into 'definite policy,' according to Turner L. Smith, Chief of Criminal Tax Section, Dept. of Justice, in an address reprinted in Section of Taxation, ABA, Symposium on Procedure in Tax Fraud Cases 29, 38—39 (1951).
2
United States v. Shotwell Mfg. Co., 225 F.2d 394 (C.A.7th Cir. 1955).
3
355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234 (1957).
4
287 F.2d 667 (C.A.7th Cir. 1961).
5
225 F.2d 394, 406 (C.A.7th Cir. 1955).
6
United States v. Carignan, 342 U.S. 36, 41, 72 S.Ct. 97, 100, 96 L.Ed. 48 (1951).
7
Wilson v. United States, 162 U.S. 613, 622, 16 S.Ct. 895, 899, 40 L.Ed. 1090 (1896).
8
168 U.S., at 548, 549, 550, 558, 562, 18 S.Ct., at 189, 190, 192, 194.
9
Id., at 548, 18 S.Ct., at 189.
10
Id., at 554, 18 S.Ct., at 191.
11
Id., at 556, 18 S.Ct., at 192.
12
See, e.g., Hardy v. United States, 186 U.S. 224, 229, 22 S.Ct. 889, 891, 46 L.Ed. 1139 (1902); Ziang Sung Wan v. United States, 266 U.S. 1, 15, 45 S.Ct. 1, 4, 69 L.Ed. 131 (1924); Lisenba v. California, 314 U.S. 219, 236 n. 16, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941); Waley v. Johnston, 316 U.S. 101, 104, 62 S.Ct. 964, 965, 86 L.Ed. 1302 (1942); Ashcraft v. Tennessee, 322 U.S. 143, 154 n. 9, 64 S.Ct. 921, 926, 88 L.Ed. 1192 (1944); Smith v. United States, 348 U.S. 147, 150, 75 S.Ct. 194, 196, 99 L.Ed. 192 (1954); Gallegos v. Colorado, 370 U.S. 49, 52, 82 S.Ct. 1209, 1211, 8 L.Ed.2d 325 (1962). But see Stein v. New York, 346 U.S. 156, 190 n. 35, 73 S.Ct. 1077, 1095, 97 L.Ed. 1522 (1953). The general validity of Bram has been assumed in many other cases. See Mapp v. Ohio, 367 U.S. 643, 656—657, 81 S.Ct. 1684, 1692—1693, 6 L.Ed.2d 1081 (1961), where the Court quoted Bram in stating, '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' in their perpetuation of 'principles of humanity and civil liberty (secured) * * * only after years of struggle."
13
See 28 L.Ed. 262, note. Cases collected, 20 Am.Jur., Evid., §§ 506, 511; 18 L.R.A.(N.S.) 820—824; 50 L.R.A.(N.S.) 1086 1087.
14
It is interesting to note that in the proceedings on remand, government counsel, in calling the witness Huebner who testified as to matters that incriminated him, was eager to have Huebner state that no one connected with the Federal Government had threatened or coerced him or made him 'any promises of reward or immunity.'
15
225 F.2d, at 400.
16
Cf. Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859 (1941).
17
According to the Chief Deputy Collector's testimony, one of the defendnts in this case was particularly worried about the publicity that would attend a criminal case because he had two boys in school. It was at this point that the Collector assured him that this was a civil case and 'he had nothing to worry about so far as publicity was concerned.'
18
Cf. Reid v. Covert, 354 U.S. 1, 41, 44, 65, 77, 77 S.Ct. 1222, 1243, 1255, 1261, 1 L.Ed.2d 1148 (1957) (concurring opinions); Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 208, 96 L.Ed. 183 (1952); Adamson v. California, 332 U.S. 46, 59, 67—68, 67 S.Ct. 1672, 1679, 1683, 91 L.Ed. 1903 (1947) (concurring opinion). But cf. Mapp v. Ohio, 367 U.S. 643, 661, 666, 81 S.Ct. 1684, 1694, 1697, 6 L.Ed.2d 1081 (1961) (concurring opinion); Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246 247, 80 S.Ct. 297, 303—304, 4 L.Ed.2d 268 (1960).
19
Similarly there can be no question of 'balancing' Fifth Amendment rights against any kind of 'competing interests.' See Frantz, 'The First Amendment in the Balance,' 71 Yale L.J. 1424, 1436—1437 (1962).
20
Hearings, supra note 1, at 144.
21
Nowhere is this made more clear than in the Government's argument in its brief, in effect adopted by the Court, that
'it is inconceivable * * * that the rule barring the use of involuntary confessions should operate to exclude a declaration in which damaging admissions are inextricably intertwined with false self-serving exculpatory statements * * *.' Brief for the United States, p. 42.
22
Rogers v. Richmond, 365 U.S. 534, 543—545, 81 S.Ct. 735, 740—741, 5 L.Ed.2d 760 (1961). See Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (1960); Spano v. New York, 360 U.S. 315, 324, 79 S.Ct. 1202, 1207, 3 L.Ed.2d 1265 (1959); Payne v. Arkansas, 356 U.S. 560, 567—568, 78 S.Ct. 844, 849—850, 2 L.Ed.2d 975 (1958); cf. Lee v. Mississippi, 332 U.S. 742, 745—746, 68 S.Ct. 300, 301—302, 92 L.Ed. 330 (1948); Ashcraft v. Tennessee, 322 U.S. 143, 152 n. 7, 64 S.Ct. 921, 925, 88 L.Ed. 1192 (1944); White v. Texas, 310 U.S. 530, 531—532, 60 S.Ct. 1032, 1033, 84 L.Ed. 1342 (1940). While these cases were state cases decided under the Fourteenth Amendment, the Fifth Amendment's specific prohibition against the use of compelled testimony should certainly be no less comprehensive than the bar against a State's use of such testimony under the Fourteenth.
Compare Mapp v. Ohio, 367 U.S. 643, 656, 81S.Ct. 1684, 1692, 6 L.Ed.2d 1081 (1961) (search and seizure).
23
See, for example, the confession in Reck v. Pate, 367 U.S. 433, 438, 81 S.Ct. 1541, 1544, 6 L.Ed.2d 948 (1961).
24
See Ashcraft v. Tennessee, 322 U.S. 143, 154, 64 S.Ct. 921, 926, 88 L.Ed. 1192 (1944).
25
See, e.g., Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940); Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948); Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954); Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957); Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959); Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960); Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962).
26
I have previously expressed the view, to which I adhere, that the admissibility of all confessions should be a jury question. United States v. Shotwell Mfg. Co., 355 U.S. 233, 246, 248—250, 78 S.Ct. 245, 253, 254—255, 2 L.Ed.2d 234 (1957) (dissenting opinion).
27
See Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951); Gouled v. United States, 255 U.S. 298, 303—304, 41 S.Ct. 261, 262—263, 65 L.Ed. 647 (1921); Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 35 L.Ed. 1110 (1892).
28
'I will tell you who David Lubben is. He is an honest, honorable American citizen, who is down here doing his duty, just the way you people are doing your duty.' This is in marked contrast to a government prosecutor's argument to the jury in another case, where he said that Lubben was 'a perjurer and a black marketeer and practically anything else you want to talk about.' R. 2589, Giglio v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958).
29
355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234 (1957).
30
R. 2556—2557, 2678—2679.
31
287 F.2d 667, 675 (C.A.7th Cir. 1961).
32
352 U.S., at 9—12, 77 S.Ct., at 5—7.
33
287 F.2d., at 675.
34
Communist Party of the United States v. Subversive Activities Control Board, 351 U.S. 115, 124, 76 S.Ct. 663, 668, 100 L.Ed. 1003 (1956).
35
352 U.S., at 12, 77 S.Ct., at 7.
36
See United States v. Shotwell Mfg. Co., 355 U.S. 233, 246, 247, 78 S.Ct. 245, 253—254, 2 L.Ed.2d 234 (1957) (dissenting opinion).
37
E.g., Communist Party, U.S.A. v. Catherwood, 367 U.S. 389, 392—395, 81 S.Ct. 1465, 1467—1469, 6 L.Ed.2d 919 (1961); United States v. International Union United Automobile, etc., Workers, 352 U.S. 567, 589—592, 77 S.Ct. 529, 540—541, 1 L.Ed.2d 563 (1957). See also Mapp v. Ohio, 367 U.S. 643, 672, 675—677, 81 S.Ct. 1684, 1700, 1702—1703, 6 L.Ed.2d 1081 (1961) (dissenting opinion).
38
Clay v. Sun Ins. Office Ltd., 363 U.S. 207, 213, 80 S.Ct. 1222, 1226, 4 L.Ed.2d 1170 (1960) (dissenting opinion).
| 01
|
371 U.S. 334
83 S.Ct. 379
9 L.Ed.2d 350
Raymond R. BEST et al., Petitioners,v.HUMBOLDT PLACER MINING COMPANY and Del De Rosier.
No. 52.
Argued Dec. 10, 1962.
Decided Jan. 14, 1963.
Roger P. Marquis, Washington, D.C., for petitioners.
Charles L. Gilmore, Sacramento, Cal., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The United States sued in the District Court to condemn certain property needed for the construction of the Trinity River Dam and Reservoir in California,1 to obtain immediate possession of it, and to secure title to it, the complaint asking that the United States be allowed to reserve authority to have the validity of mining claims determined in administrative proceedings before the Bureau of Land Management of the Department of the Interior. The District Court allowed the United States a writ of possession; but no other issues in the action have been determined. See 185 F.Supp. 290.
2
The United States later instituted a contest proceeding in the local land office of the Bureau seeking an administrative determination of the validity of respondents' mining claims2 and alleged that the land embraced within respondents' claims is nonmineral in character and that minerals have not been found within the limits of the claims in sufficient quantities to constitute a valid discovery. Respondents, who had 30 days to answer the administrative complaint or have the allegations taken as confessed,3 brought the present suit to enjoin the officials of the Department of the Interior from proceeding with the administrative action. The District Court granted summary judgment for the United States. 185 F.Supp. 290. The Court of Appeals reversed, 293 F.2d 553. The case is here on a petition for certiorari which we granted. 368 U.S. 983, 82 S.Ct. 600, 7 L.Ed.2d 522.
3
We deal here with a unique form of property. A mining claim on public lands is a possessory interest in land that is 'mineral in character' and as respects which discovery 'within the limits of the claim' has been made. Cameron v. United States, 252 U.S. 450, 456, 40 S.Ct. 410, 411, 64 L.Ed. 659. The discovery must be of such a character that 'a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine.' Castle v. Womble, 19 L.D. 455, 457; Chrisman v. Miller, 197 U.S. 313, 322, 25 S.Ct. 468, 49 L.Ed. 770; Cameron v. United States, supra, 252 U.S. p. 459, 40 S.Ct. p. 412. A locator who does not carry his claim to patent does not lose his mineral claim, though he does take the risk that his claim will no longer support the issuance of a patent. United States v. Houston, 66 L.D. 161, 165. It must be shown before a patent issues that at the time of the application for patent 'the claim is valuable for minerals,' worked-out claims not qualifying. United States v. Logomarcini, 60 L.D. 371, 373.
4
Respondents' mining claims are unpatented, the title to the lands in controversy still being in the United States. The claims are, however, valid against the United States if there has been a discovery of mineral within the limits of the claim, if the lands are still mineral, and if other statutory requirements have been met.4 Cameron v. United States, supra. The determination of the validity of claims against the public lands was entrusted to the General Land-Office in 1812 (2 Stat. 716) and transferred to the Department of the Interior on its creation in 1849. 9 Stat. 395.5 Since that time, the Department has been granted plenary authority over the administration of public lands, including mineral lands; and it has been given broad authority to issue regulations concerning them.6 Cameron v. United States, supra—an opinion written by Mr. Justice Van Devanter, who, as Assistant Attorney General for the Interior Department from 1897 to 1903, did more than any other person to give character and distinction to the administration of the public lands illustrates the special role of the Department of the Interior in that field. Cameron claimed a valid mineral discovery on public lands. His claim was rejected in administrative proceedings. Cameron, however, would not vacate the land and the United States sued to oust him. The Court said:
5
'By general statutory provisions the execution of the laws regulating the acquisition of rights in the public lands and the general care of these lands is confided to the Land Department, as a special tribunal; and the Secretary of the Interior, as the head of the department, is charged with seeing that this authority is rightly exercised to the end that valid claims may be recognized, invalid ones eliminated and the rights of the public preserved. * * *
6
'A mining location which has not gone to patent is of no higher quality and no more immune from attack and investigation than are unpatented claims under the homestead and kindred laws. If valid, it gives to the claimant certain exclusive possessory rights, and so do homestead and desert claims. But no right arises from an invalid claim of any kind. All must conform to the law under which they are initiated; otherwise they work an unlawful private appropriation in derogation of the rights of the public.
7
'Of course, the Land Department has no power to strike down any claim arbitrarily, but so long as the legal title remains in the government it does have power, after proper notice and upon adequate hearing, to determine whether the claim is valid and, if it be found invalid, to declare it null and void.' 252 U.S. 450, 459—460, 40 S.Ct. 410, 412.
8
'Due process in such case implies notice and a hearing. But this does not require that the hearing must be in the courts, or forbid an inquiry and determination in the land department.' Orchard v. Alexander, 157 U.S. 372, 383, 15 S.Ct. 635, 639, 39 L.Ed. 737. If a patent has not issued, controversies over the claims 'should be solved by appeal to the land department, and not to the courts.'7 Brown v. Hitchcock, 173 U.S. 473, 477, 19 S.Ct. 485, 487, 43 L.Ed. 772. And see Northern Pacific R. Co. v. McComas, 250 U.S. 387, 392, 39 S.Ct. 546, 548, 63 L.Ed. 1049.
9
The Court of Appeals wrote nothing in derogation of these principles. It concluded, however, that since the United States went into the District Court to condemn these property interests and to get immediate possession, the validity of the claims was, of necessity, left to judicial determination. Its conclusion rested primarily on Rule 71A of the Federal Rules of Civil Procedure, 28 U.S.C.A. That Rule, after describing the way in which the issue of compensation shall be determined, concludes with the sentence 'Trial of all issues shall otherwise be by the court.'
10
Yet courts that try issues sometimes wait until the administrative agency that has special competence in the field has ruled on them. The controversies within the Court over the appropriateness of that procedure in given situations is well known, though there is no dispute over the soundness of the Abilene doctrine, adumbrated by Chief Justice White in Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553. It is difficult to imagine a more appropriate case for invocation of the jurisdiction of an administrative agency for determination of one of the issues involved in a judicial proceeding. Cf. Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 60 S.Ct. 628, 84 L.Ed. 876; Thompson v.Texas Mexican R. Co., 328 U.S. 134, 146—151, 66 S.Ct. 937, 944—947, 90 L.Ed. 1132. Congress has entrusted the Department of the Interior with the management of the public domain and prescribed the process by which claims against the public domain may be perfected.8 The United States, which holds legal title to the lands, plainly can prescribe the procedure which any claimant must follow to acquire rights in the public sector.
11
Respondents protest, saying that if they are remitted to the administrative proceeding, they will suffer disadvantages in that the procedures before the District Court are much less onerous on claimants than those before the Department of the Interior.9 We express no views on those contentions, as each of them can appropriately be raised in the administrative proceedings and reserved for judicial review.
12
The United States is not foreclosed from insisting on resort to the administrative proceedings for a determination of the validity of those claims. It may take property pursuant to its power of eminent domain, either by entering into physical possession of the property without a court order, or by instituting condemnation proceedings under various Acts of Congress. United States v. Dow, 357 U.S. 17, 21, 78 S.Ct. 1039, 1044, 2 L.Ed.2d 1109. Title to the property passes later, though the entry into possession marks the taking, gives rise to the claim for compensation, and fixes the date as of which the property is to be valued. Id., p. 22, 78 S.Ct. p. 1044. Institution of suit is one way to obtain immediate possession; and we see nothing incompatible between the use of that means to obtain possession and the use of the administrative proceedings to determine title. Cf. United States v. 93.970 Acres, 360 U.S. 328, 79 S.Ct. 1193, 3 L.Ed.2d 1275. No purpose would be served by forcing the United States to abandon that orderly procedure in favor of physical seizure, leaving the claimant to a suit under the Tucker Act. See United States v. Dow, supra, 357 p. 21, 78 S.Ct. p. 1044.
13
We conclude that the institution of the suit in the District Court was an appropriate way of obtaining immediate possession, that it was not inconsistent with the administrative remedy for determining the validity of the mining claims, and that the District Court acted properly in holding its hand until the issue of the validity of the claims has been resolved by the agency entrusted by Congress with the task.
14
Reversed.
1
See S.Doc. No. 113, 81st Cong., 1st Sess. 120, stating that the project will require 10,000 acres.
2
See Appeals and Contests Regulation of the Bureau of Land Management, 43 CFR, 1962 Supp., § 221.67.
3
Id., § 221.64.
4
30 U.S.C. §§ 21, 22, 26, 30 U.S.C.A. §§ 21, 22, 26; General Mining Regulation of the Bureau of Land Management, 43 CFR §§ 185.1—185.3.
5
See 5 U.S.C. § 485, 5 U.S.C.A. § 485; 43 U.S.C. § 2, 43 U.S.C.A. § 2.
6
See 30 U.S.C. § 22, 30 U.S.C.A. § 22, 43 U.S.C. § 1201, 43 U.S.C.A. § 1201.
7
Claimants today may appeal the Examiner's decision to the Director of the Bureau (43 CFR, 1962 Supp., § 221.1), from him to the Secretary (id., § 221.31), and from there to the courts. Foster v. Seaton, 106 U.S.App.D.C. 253, 271 F.2d 836.
8
We are told that nine hearing Examiners are assigned to mining-claim cases, that mining claims comprise from 75% to 85% of their hearings, and that in the fiscal year 1960—1961, 322 mining-law cases (involving 1,162 separate claims) were brought before the hearing Examiners. Of these, 81 cases (343 claims) were closed on procedural grounds without a hearing; in 241 cases (involving 819 claims), hearings on the merits were held and decisions rendered by the hearing Examiner; in 90 of these cases, appeals were taken to the Director of the Bureau of Land Management.
In the fiscal year 1961 there were a total of 27,228 mining-claim adjudication cases closed during the year. These included 7,457 title-transfer cases (e.g., patent applications and land-disposition conflicts), and approximately 20,000 mining-claim investigations by the Bureau's mining engineers for the purpose of determining validity or invalidity. See Annual Report, Director, Bureau of Land Management, 1961, pt. 4, pp. 86—120 (Statistical Appendix).
9
Respondents say (1) that in the District Court value would be determined as of the time of the taking, while before the agency value is determined as of the date of the hearing before the Examiner; (2) that the strictures on proof of 'discovery' in the administrative proceedings are so great that they could not be satisfied unless the Trinity Basin Reservoir were drained; (3) that in the District Court value could be established by a showing of valuable deposits of gold, while before the Examiner a claim could be established only on proof that mines were actually operating at a profit.
| 89
|
371 U.S. 285
83 S.Ct. 397
9 L.Ed.2d 317
UNITED STATES, Appellant,v.GEORGIA PUBLIC SERVICE COMMISSION.
No. 81.
Argued Oct. 18, 1962.
Decided Jan. 14, 1963.
Archibald Cox, Sol. Gen., for appellant.
Paul Rodgers, Atlanta, Ga., for appellee.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Civilian employees of the Federal Government were reassigned from Savannah to Atlanta, Georgia, and the General Services Administration sought to arrange by competitive bidding for the intrastate mass shipment of their household goods between those cities. Georgia law, however, does not permit a rate for transporting household goods of more than one family; it requires carriers to quote schedules of approved rates, the total charge to be the sum of the charges figured for individual families.1 Five carriers submitted bids quoting rates lower than those allowed by the Georgia tariff. After the competitive bidding was over and the contract awarded to the lowest responsible bidder, the Georgia Public Service Commission threatened these five carriers with revocation of their intrastate operating certificates should they perform at the rates quoted GSA. The successful bidder thereupon notified GSA that it was unable to perform the contract. Appellee instituted proceedings against the carrier, looking toward the revocation of its certificate. The United States sought to intervene in that proceeding but it was not allowed to do so. Appellee also refused to allow a GSA official to testify as to the circumstances of the shipping contract that the Commission claimed conflicted with Georgia law.
2
Thereupon the United States filed suit in the District Court and requested the convocation of a three-judge court. The complaint alleged, inter alia, that Georgia law burdened federal officers in carrying out their federal functions and conflicted with federal procurement policy. The issue as finally joined raises squarely those questions. The District Court held that there was no conflict between Georgia's regulatory scheme and the federal one, concluding that the case is governed by Penn Dairies, Inc., v. Milk Control Comm., 318 U.S. 261, 63 S.Ct. 617, 87 L.Ed. 748. See 197 F.Supp. 793. The case is here on direct appeal (28 U.S.C. §§ 1253, 2101(b)), 28 U.S.C.A. §§ 1253, 2101(b); we postponed consideration of the question of jurisdiction until a hearing on the merits. 369 U.S. 882, 82 S.Ct. 1157.
3
We have jurisdiction of this appeal if the case was 'required * * * to be heard and determined by a district court of three judges.' 28 U.S.C. § 1253, 28 U.S.C.A. § 1253. The question whether the Georgia regulatory scheme is unconstitutional because it burdened the exercise by the United States of its power to maintain a civilian service and to carry out other constitutional functions is a substantial one, as our decisions in Penn Dairies, Inc., v. Milk Control Comm., supra; Public Utilities Comm. of California v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470 and Paul v. United States, 371 U.S. p. 245, 83 S.Ct. p. 426, and therefore required a three-judge court to adjudicate it. 28 U.S.C. § 2281, 28 U.S.C.A. § 2281; Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794; Florida Lime & Avacado Growers v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568. We have presented here more than an isolated issue whether a state law conflicts with a federal statute and therefore must give way by reason of the Supremacy Clause. Cf. Kesler v. Department of Public Safety, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641. Direct conflict between a state law and federal constitutional provisions raises of course a question under the Supremacy Clause but one of a broader scope than where the alleged conflict is only between a state statute and a federal statute that might be resolved by the construction given either the state or the federal law. Id., 157, 82 S.Ct. p. 810. So we have a clear case for convening a three-judge court. Once convened the case can be disposed of below or here on any ground, whether or not it would have justified the calling of a three-judge court. See Sterling v. Constantin, 287 U.S. 378, 393—394, 53 S.Ct. 190, 193, 77 L.Ed. 375; Railroad Comm. v. Pacific Gas Co., 302 U.S. 388, 391, 58 S.Ct. 334, 336, 82 L.Ed. 319.
4
The District Court, acting on motions for summary judgment filed by each of the parties, said that were the property being transported 'strictly governmental property,' the case would be governed by Public Utilities Comm. of California v. United States, 355 U.S. 534, 78 S.Ct. 446. But since the property involved here is household goods, not military supplies, the court concluded that the case is controlled by Penn Dairies, Inc. v. Milk Control Comm., supra.
5
The distinction drawn by the District Court between this case and Public Utilities Comm. of California v. United States, supra, is not tenable. Between 1943, when Penn Dairies was decided, and 1958, when Public Utilities Comm. of California was decided, Congress enacted the Armed Services Procurement Act of 1947, 62 Stat. 21, later codified without substantial change, 70A Stat. 127, 10 U.S.C. § 2301 et seq., 10 U.S.C.A. § 2301 et seq., which extended and elaborated the federal procurement policy of negotiated rates which, as we noted in the Public Utilities Comm. of California case, conflicted with California's policy of regulated rates. 355 U.S., at 544, 78 S.Ct., at 453. The federal Regulation involved in that case was superseded in 1958 by the Military Traffic Management Regulation.2 That Regulation includes the 'procedures to govern the movement of uncreated household goods.'3 Another Regulation provides that their transportation is authorized 'by the mode of transportation * * * which results in the lowest over-all cost to the Government and which provides the required service satisfactorily.'4 This entails 'negotiation' with carriers for 'rates'5 on military traffic and 'Special arrangements pertaining to other freight traffic.'6 Examples could be multiplied but enough has been said to show that the new Military Traffic Management Regulation continues in effect the provisions of the earlier regulation in force when the Public Utilities Comm. of California case was decided.
6
The same policy of negotiating rates for shipment of federal property now governs nondefense agencies. The basic statute is the Federal Property and Administrative Services Act of 1949, 63 Stat. 383, 40 U.S.C. § 481, 40 U.S.C.A. § 481, 63 Stat. 393, as amended, 41 U.S.C. § 251 et seq., 41 U.S.C.A. § 251 et seq. Its procurement provisions are substantially similar to those contained in the Armed Services Procurement Act of 1947. It was, indeed, enacted to extend to GSA 'the principles of the Armed Services Procurement Act of 1947, with appropriate modifications principally designed to eliminate provisions applicable primarily to the military.' H.R.Rep.No. 670, 81st Cong., 1st Sess., p. 6, U.S.Code Cong.Service 1949, p. 1479. Under the regulations promulgated pursuant to this Act, procurement of transportation and improvement of transportation and traffic practices of executive agencies are entrusted to the Commissioner of the Transportation and Public Utilities Service (TPUS).7 He is to represent the executive agencies 'in negotiations of rates and contracts for transportation.'8 The Commissioner in procurement and contracting.9
7
'(a) Negotiates purchases and contracts for property and services without advertising, and makes any determinations and decisions required in connection therewith * * *.
8
'(b) Makes purchases and contracts for property and services by advertising, and determines that the rejection of all bids is in the public interest.
9
'(c) Determines the type of negotiated contract which will promote the best interests of the Government * * *.'
10
The Regulation governing the Commissioner's functions enjoins him:
11
'to evaluate mass movements of household goods and personal effects and, when feasible, to negotiate with carriers to effect the most economical basis for the movement of such household goods and personal effect.'10
12
'Except when the exigency of the movement precludes such action, all requests for rates for mass movements * * * shall be made by formal advertising (for bids) * * *.'11
13
That Regulation is plainly within the purview of the Act, which provides in § 302, as amended, 41 U.S.C. § 252, 41 U.S.C.A. § 252 as follows:
14
'All purchases and contracts for property and services shall be made by advertising, as provided in section 253 of this title, except that such purchases and contracts may be negotiated by the agency head without advertising if—
15
'(2) the public exigency will not admit of the delay incident to advertising; '(10) for property or services for which it is impracticable to secure competition;
16
'(14) for property or services as to which the agency head determines that bid prices after advertising therefor are not reasonable * * * or have not been independently arrived at in open competition: Provided, That * * * (B) the negotiated price is the lowest negotiated price offered by any responsible supplier * * *.'
17
Section 253(b) provides that awards shall be made 'to that responsible bidder whose bid * * * will be most advantageous to the Government, price and other factors considered.' Moreover, 40 U.S.C. § 481(a)(4), 40 U.S.C.A. § 481(a)(4) directs GSA to represent executive agencies 'in negotiations with carriers' with respect to transportation 'for the use of executive agencies.' Transfer of household goods of federal employees, whether military12 or civilian, has been made by Congress a charge against federal funds when employees are transferred from one official station to another.13
18
It is said that the 1949 Act gives the Administrator power to deal only with whoever has authority to make rate decisions, whether it be the carrier on interstate shipments or the state regulatory agency on intrastate shipments. 40 U.S.C. § 481, 40 U.S.C.A. § 481 does indeed provide:
19
'The Administrator shall, in respect of executive agencies, and to the extent that he determines that so doing is advantageous to the Government in terms of economy, efficiency, or service, and with due regard to the program activities of the agencies concerned— '(4) with respect to transportation and other public utility services for the use of executive agencies, represent such agencies in negotiations with carriers and other public utilities and in proceedings involving carriers or other public utilities before Federal and State regulatory bodies * * *.' (Emphasis added.)
20
But that provision does not say that state-fixed rates govern the federal procurement official unless he can get them changed. It is comparable to § 22 of the Interstate Commerce Act, 49 U.S.C. § 22, 49 U.S.C.A. § 22, which allows the United States to obtain preferred rates. 'The object of the section was to settle, beyond doubt, that the preferential treatment of certain classes of shippers and travelers * * * is not necessarily prohibited.' Nashville R. Co. v. Tennessee, 262 U.S. 318, 323, 43 S.Ct. 583, 585, 67 L.Ed. 999. And see Southern R. Co. v. United States, 322 U.S. 72, 64 S.Ct. 869, 88 L.Ed. 1144; United States v. Interstate Commerce Comm., 352 U.S. 158, 174, 77 S.Ct. 241, 249, 1 L.Ed.2d 211.
21
By § 481(a) the Administrator is authorized to seek before state agencies preferential treatment for federal shipments. But there is not a word suggesting that, failing in that regard, he is bound to accept the state-fixed rate. The Act and the Regulation speak too clearly in terms of the 'lowest over-all cost' to the Government, either through competitive bidding or negotiation with carriers, for us to conclude that the only relief against state fixed rates is an administrative remedy before the state agency either through negotiation or litigation. Congress has not tied the hands of the federal procurement officials so tightly.
22
We have then a federal procurement policy of negotiated rates for transporting household goods of federal employees—a policy as clear and as explicit as the federal policy for transporting military supplies involved in Public Utilities Comm. of California v. United States, supra. The Georgia policy, which is opposed to this federal policy, must accordingly give way. For as we noted in Public Utilities Comm. of California v. United States, supra, 355 U.S. at 544, 78 S.Ct. at 453, a State is without power by reason of the Supremacy Clause to provide the conditions on which the Federal Government will effectuate its policies. Whether the federal policy is a wise one is for the Congress and the Chief Executive to determine. See Perkins v. Lukens Steel Co., 310 U.S. 113, 127, 60 S.Ct. 869, 876, 84 L.Ed. 1108 et seq. Once they have spoken it is our function to enforce their will.
23
Reversed.
24
Mr. Justice STEWART, whom Mr. Justice HARLAN and Mr. Justice GOLDBERG join, dissenting.
25
The governing law in this case is Title III of the Federal Property and Administrative Services Act of 1949,1 but that Act simply 'extends to the General Services Agency the principles of the Armed Services Procurement Act of 1947.'2 In Paul v. United States, 371 U.S. 270, 83 S.Ct. 441, I have stated why I think those principles clearly contemplate that government procurement is to be conducted within the framework of valid state regulatory legislation. For the reasons there stated, I also dissent from the Court's judgment in this case.
26
Only one additional consideration needs mention here. The Court purports to find some additional support for the result in this case in one provision of the 1949 Act which has no counterpart in the 1947 Act. Section 201(a) of the 1949 Act3 provides, in pertinent part,
27
'(a) The Administrator shall * * * '(4) with respect to transportation and other public utility services for the use of executive agencies, represent such agencies in negotiations with carriers and other public utilities and in proceedings involving carriers or other public utilities before Federal and State regulatory bodies * * *.' (Emphasis added.)
28
The Court seizes upon the words 'in negotiations with carriers' as evidence that Congress authorized the Administrator to by-pass state rate schedules when placing contracts for intrastate transportation.
29
Far from supporting the Court's position, I think § 201(a) is simply another example of Congress' basic assumption that state price regulation will remain applicable to federal procurement transactions. The section refers both to negotiations with individual carriers and to proceedings before regulatory agencies. It seems to me that the authorization of these alternative procedures must be read against the background of § 22 of the Interstate Commerce Act, 49 U.S.C. § 22, 49 U.S.C.A. § 22, which provides that I.C.C. rate schedules governing interstate shipments are not to apply to transportation for the Federal Government. In light of this express statutory exemption for interstate shipments, it appears quite clear that § 201(a) says nothing more than that the Administrator has power to deal with whoever has authority to make rate decisions—with the carrier for interstate shipments, and with state regulatory agencies for intrastate shipments when regulated by state law.4
1
See Ga. Household Goods Tariff No. 1—B, GPSC—MF No. 3, Rules 8 and 15. The latter provides in part that 'Property of two or more families or establishments will not be accepted for transportation as a single shipment.'
2
Promulgated March 1958, as amended to October 10, 1960.
3
Id., c. 101, 101001.
4
Joint Travel Regulations, c. 8, April 1, 1959, as amended to October 1, 1961, 8001.
5
Military Traffic Management Regulation, amended to November 5, 1959, c. 201, 201001(b).
6
Id., 201001(k).
7
General Services Adm. Order, ADM 5450.3, change 4, 141a; TPS 7460.1, Attachment, 3, March 15, 1960.
8
ADM, supra, 141b; TPS 7460.1, 4.
9
Id., 142a.
10
TPS 7460.1, 3.
11
Id., Attachment, 7b(1).
12
63 Stat. 813, as amended, 37 U.S.C. § 253(c), 37 U.S.C.A. § 253(c).
13
60 Stat. 806, as amended, 5 U.S.C. § 73b—1, 5 U.S.C.A. § 73b—1.
1
63 Stat. 393, as amended, 41 U.S.C. §§ 251—260, 41 U.S.C.A. §§ 251—260.
2
H.R.Rep. No. 670, 81st Cong., 1st Sess. 6.
3
63 Stat. 383, as amended, 40 U.S.C. § 481(a), 40 U.S.C.A. § 481(a).
4
The same conclusion must be drawn from the several regulations cited by the Court. When read in full, both the military and civilian transportation regulations seem to anticipate that procurement officers will deal sometimes directly with individual carriers, and sometimes with a regulatory body. The Executive Director, Military Traffic Management Agency, is made responsible for:
'Negotiation with all for-hire carriers of cargo or their rate-making agencies for classifications, rates, charges, rules and regulations on military traffic * * *.' Chapter 201, Military Traffic Management Regulation, March 1958, as amended to November 5, 1959.
Similarly, regulations governing nonmilitary transportation make the Transportation and Public Utilities Service responsible for:
'the provision of advice and expert testimony on behalf of executive agencies in proceedings before Federal and State regulatory bodies involving transportation, public utilities (and) communications * * *.' General Services ADM Order, Adm. 5450.3, Change 4, July 31, 1959, § 1, 141(b).
| 89
|
371 U.S. 245
83 S.Ct. 426
9 L.Ed.2d 292
Charles PAUL, Director of Agriculture of California, et al., Appellants,v.UNITED STATES.
No. 19.
Argued Oct. 17 and 18, 1962.
Decided Jan. 14, 1963.
[Syllabus from pages 245-246 intentionally omitted]
John Fourt, Sacramento, Cal., for appellants.
Archibald Cox, Sol. Gen., for appellee.
[Amicus Curiae from pages 246-247 intentionally omitted]
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The main question in this case is whether California can enforce her minimum wholesale price regulations as respects milk sold to the United States at three military installations1 (Travis Air Force Base, Castle Air Force Base, and Oakland Army Terminal) located within California and used for strictly military consumption, for resale at federal commissaries and for consumption or resale at various military clubs and post exchanges. Milk used for the first two categories of use is paid for with appropriated funds, while that used in the clubs and exchanges is purchased with nonappropriated funds. Prior to January 1959, the milk supplies purchased with appropriated funds and used at those installations were obtained as a result of competitive bidding and on terms below the minimum prices prescribed by the Director of Agriculture of California. The Director advised distributors that the State's minimum price regulations were applicable to sales at Travis. Subsequently bids for milk-supply contracts at Travis were in strict compliance with California's regulations, the added cost to the Federal Government being about $15,000 a month. Later that year California instituted a civil action in the state courts against a cooperative that had supplied milk at Travis below the state minimum price, seeking civil penalties and an injunction. Thereafter the United States brought this suit in the District Court. The complaint alleged that state price regulation of milk sales at Travis, a federal enclave, was barred by the Constitution, since Travis is subject to the exclusive jurisdiction of the United States.2 It also alleged that such regulation was an unconstitutional burden on the United States in the exercise of its constitutional power to establish and maintain the Armed Forces and to acquire and manage a federal enclave. The complaint asked that a three-judge court be convened.
2
Meanwhile, the Director of Agriculture of California warned distributors that the California regulation would be enforced at Castle and at Oakland. Bids for milk thereafter received at Castle were all at or above the state minimum price; and accordingly they were rejected. A new invitation for bids was issued, and one of those received was below the state minimum. Thereupon California sued the successful bidder for an injunction; and later it sued other like bidders. A similar experience was had at Oakland; bids at or above the minimum were rejected, and a contract with a distributor for a prior period was extended for three months with an estimated saving to the United States of over $30,000. California again instituted suit to enjoin the supplier from selling at below established minimum wholesale prices. The United States amended its complaint to include its purchases at Castle. As respects Oakland the United States commenced a separate action by a complaint substantially identical with the other one; and they were later consolidated.
3
Appellants denied that these three installations were federal enclaves giving the United States exclusive jurisdiction and that there was any conflict between the state regulatory scheme and the federal procurement policy. Appellants also moved that the District Court stay these actions pending determination of state-law questions by the state courts in the pending actions.
4
The three-judge District Court refused to stay the proceedings and granted the motion of the United States for summary judgment. 190 F.Supp. 645. We postponed a determination of jurisdiction to the merits. Paul v. United States, 368 U.S. 965, 82 S.Ct. 437, 7 L.Ed.2d 394.
I.
5
Here, as in United States v. Georgia Public Service Comm., 371 U.S. 285, 83 S.Ct. 397, the suit was one 'required' to be heard by a three-judge court within the meaning of 28 U.S.C. § 1253, 28 U.S.C.A. § 1253 and therefore properly brought here by direct appeal. Apart from the question whether the three federal areas were subject to the exclusive jurisdiction of the United States, the issue as to whether or not the state regulatory scheme burdened the exercise by the United States of its constitutional powers to maintain the Armed Services and to regulate federal territory was a substantial federal question, as Penn Dairies, Inc., v. Milk Control Comm. of Pennsylvania, 318 U.S. 261, 63 S.Ct. 617, 87 L.Ed. 748; Public Utilities Comm. of State of California v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470, and United States v. Georgia Public Service Comm., supra, make clear. A three-judge court was therefore required even if other issues that might not pass muster on their own were also tendered. See 28 U.S.C. § 2281, 28 U.S.C.A. § 2281; Florida Lime & Avocado Growers, Inc., v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568.
II.
6
The California Act authorizes the Director of Agriculture to prescribe minimum wholesale and retail prices3 'at which fluid milk or fluid cream shall be sold by distributors to retail stores, restaurants, confectioneries and other places for consumption on the premises.'4 The prohibitions run both against sales and against purchases;5 and both criminal and civil penalties are provided.6 The minimum wholesale prices, promulgated by the Director of Agriculture, have been enforced with respect to sales to the United States, as already noted.
7
In Public Utilities Comm. of State of California v. United States, supra, we held that the federal procurement policy, which required competitive bidding as the general rule and negotiated purchase or contract as the exception, prevailed over California's regulated rate system. That case, like United States v. Georgia Public Service Comm., supra, concerned transportation of commodities. But the federal policy at the times relevant here was the same for procurement of supplies and services. The statutes in effect at the time of the Public Utilities Commission of State of California case are still the basic provisions governing all procurement by the Armed Services out of appropriated funds. They require that contracts be placed by competitive bidding, the award to be granted 'to the responsible bidder whose bid * * * will be the most advantageous to the United States, price and other factors considered.'7 There are statutory exceptions, the relevant ones being as follows:
8
'(a) Purchases of and contracts for property or services covered by this chapter shall be made by formal advertising in all cases in which the use of such method is feasible and practicable under the existing conditions and circumstances. If use of such method is not feasible and practicable, the head of an agency, subject to the requirements for determinations and findings in section 2310, may negotiate such a purchase or contract, if-
9
'(8) the purchase or contract is for property for authorized resale;
10
'(9) the purchase or contract is for perishable or nonperishable subsistence supplies;
11
'(10) the purchase or contract is for property or services for which it is impracticable to obtain competition;
12
'(15) the purchase or contract is for property or services for which he determines that the bid prices received after formal advertising are unreasonable as to all or part of the requirements, or were not independently reached in open competition, and for which (A) he has notified each responsible bidder of intention to negotiate and given him reasonable opportunity to negotiate; (B) the negotiated price is lower than the lowest rejected bid of any responsible bidder, as determined by the head of the agency; and (C) the negotiated price is the lowest negotiated price offered by any responsible supplier.'8
13
The Armed Services Procurement Regulation speaks in unambiguous terms of a policy 'to use that method of procurement which will be most advantageous to the Government-price, quality, and other factors considered.'9 The Regulation states, 'Such procurement shall be made on a competitive basis, whether by formal advertising or by negotiation, to the maximum practicable extent * * *.'10 Whatever method is used-formal advertising or negotiation-'competitive proposals' must be 'solicited from all such qualified sources of supplies or services as are deemed necessary by the contracting officer to assure such full and free competition as * * * to obtain for the Government the most advantageous contract-price, quality, and other factors considered.'11 If advertising for bids is used, the contract is to be awarded 'to the lowest responsible bidder.'12 Moreover, even when advertising for bids is not used, competitive standards are not relaxed. The policy is 'to procure supplies and services from responsible sources at fair and reasonable prices calculated to result in the lowest ultimate over-all cost to the Government.'13 'The fact that a procurement is to be negotiated does not relax the requirements for competition.'14 'Whenever supplies * * * are to be procured by negotiation, price quotations * * * shall be solicited from all such qualified sources of supplies or services as are deemed necessary * * * to assure full and free competition * * * to the end that the procurement will be made to the best advantage of the Government, price and other factors considered.'15 The Regulation then specifies 20 separate considerations for the selection of a supplier in case of a negotiated procurement.16 The first of these is a 'comparison of prices quoted.'17
14
We have said enough to show that the Regulation does more than authorize procurement officers to negotiate for lower rates. It directs that negotiations or, wherever possible, advertising for bids shall reflect active competition so that the United States may receive the most advantageous contract.
15
While the federal procurement policy demands competition, the California policy, as respects milk, effectively eliminates competition. The California policy defeats the command to federal officers to procure supplies at the lowest cost to the United States by having a state officer fix the price on the basis of factors not specified in the federal law. Moreover, when the supply contract is negotiated because 'it is impracticable to obtain competition,' to use the statutory words,18 it is the state agency, not the federal procurement officer and the seller, that determines the price provisions of the contract, if state policy prevails. The collision between the federal policy of negotiated prices and the state policy of regulated prices is as clear and acute here as was the conflict between federal negotiated rates and state regulated rates in Public Utilities Comm. of State of California v. United States, supra. In that case we said that the Regulation then existing, which was promulgated under the same Act here involved, 'sanction(ed) the policy of negotiating rates for shipment of federal property and entrust(ed) the procurement officers with the discretion to determine when existing rates will be accepted and when negotiation for lower rates will be undertaken.' 355 U.S., at 542-543, 78 S.Ct., at 452.
16
Penn Dairies, Inc. v. Milk Control Comm. of Pennsylvania, supra, is not opposed. As we noted in United States v. Georgia Public Service Comm., supra, Congress, after the Penn Dairies decision and before Public Utilities Comm. of State of California v. United States, revised and restated the federal procurement policy. As stated in the House Report,19 '* * * the bill represents a comprehensive revision and restatement of the laws governing the procurement of supplies and services by the War and Navy Departments. It holds to the time-tested method of competitive bidding. At the same time it puts within the framework of one law almost a century's accumulation of statutes and incorporates new safeguards designed to eliminate abuses, assures the Government of fair and reasonable prices for the supplies and services procured and affords an equal opportunity to all suppliers to compete for and share in the Government's business.'
17
The Regulation controlling the Penn Dairies decision stated, as does the present Act, that supplies might be purchased on the open market where it is 'impracticable to secure competition.' 318 U.S., at 277, 63 S.Ct., at 624. But, unlike the present Regulation, the earlier one declared that such a situation arose 'when the price is fixed by federal, state, municipal or other competent legal authority.' Ibid. The earlier Regulation further stated that federal procurement officers should not require suppliers to comply with state price-fixing laws before it was judicially determined whether the latter were applicable to government contracts (id., at 276, 63 S.Ct., at 624), a provision which the Court said manifested a federal 'hands off' policy respecting minimum price laws of the States. Id., at 278, 63 S.Ct., at 625.
18
The present Regulation makes no such allowances, contains no such qualifications, and provides for no such exception. Its unqualified commands is that purchases for the Armed Services be made on a competitive basis; and it has, of course, the force of law. Public Utilities Comm. of State of California v. United States, supra, 355 U.S., at 542-543, 78 S.Ct., at 451-452. California's price-fixing policy for milk is as opposed to this federal procurement policy as was California's rate-making policy in Public Utilities Comm. of State of California v. United States, supra.
19
Policy-wise, it might be better if state price-fixing systems were honored by federal procurement officials. It is urged that if that were done substandard producers of some suppliers would lose the advantage they may enjoy in competitive bidding. Congress could of course write that requirement into the law. Congress has written into the Act certain provisions of that character. It has required that contractors or manufacturers pay not less than the minimum wage as determined by the Secretary of Labor to be the prevailing wage; that building contractors pay such minimum wages to laborers and mechanics; and that no laborer or mechanic doing any work for contractors and subcontractors on government contracts shall be required or permitted to work more than eight hours a day, unless one and a half times the basic rate is paid for overtime.20 The inclusion of these provisions, aimed as they are at substandard working conditions, shows that Congress has been alert to the problem. Their inclusion makes more eloquent the omission of any like requirement as respects prices or rates fixed by state law.
20
It is argued that the Act of September 10, 1962, 76 Stat. 528, changed the situation. California points to § 2306(f), which requires contractors to submit cost or pricing data for any negotiated contract, but goes on to lift that requirement where 'prices (are) set by law or regulation.' But this provision does not say, even equivocally, that federal procurement officers must abandon competitive bidding where prices are 'set by law or regulation.' The Regulation makes competitive bidding the rule, as we have seen. Section 2306(f) only provides for waiver of 'cost or pricing data' under certain kinds of negotiated contracts if the prices of some commodities included in the contract have been 'set by law or regulation.' That is to say, as, if, and when the procurement officer is authorized to accept prices 'set by law or regulation,' he need not follow the requirements of § 2306(f) concerning 'cost or pricing data.'
21
California cites but builds no argument around § 2304(g), also added in 1962. It is now suggested for the first time that § 2304(g) requires federal procurement to follow state rate-fixing and state price-fixing. It provides in relevant part:
22
'In all negotiated procurements in excess of $2,500 in which rates or prices are not fixed by law or regulation and in which time of delivery will permit, proposals shall be solicited from the maximum number of qualified sources consistent with the nature and requirements of the supplies or services to be procured, and written or oral discussions shall be conducted with all responsible offerors who submit proposals within a competitive range, price, and other factors considered * * *.'
23
Here again, the new statutory provision does not purport to say when rates or prices 'fixed by law or regulation' govern federal procurement. At the time § 2304(g) was added to the Act, the Regulation which we have discussed at length was in full force. That Regulation, unlike the one in Penn Dairies, eliminated the earlier provisions which had been construed to manifest a federal 'hands off' policy respecting minimum price laws of the States. 318 U.S., at 278, 63 S.Ct., at 625. The Regulation in force when this litigation started and in force when the 1962 Act was passed provides unequivocally for competitive bidding 'to the maximum practicable extent,' as we have noted. That might well permit procurement officers under some circumstances to purchase at state-fixed prices. But competitive bidding is the rule, not the exception. There is not a word in the legislative history of the 1962 Act21 which indicates a congressional policy to uproot the Regulation or to change it. It was, indeed, repeatedly approved. See S. Rep.No.1884, 87th Cong., 2d Sess.; H.R.Rep.No.1638, 87th Cong., 2d Sess., Parts I and II; Cong. Rec., June 7, 1962, p. 9231 et seq. Four years before the 1962 Act was passed California Comm. had held that state regulations cannot preclude the Federal Government from negotiating lower rates. This result was not once questioned in the legislative history of the 1962 Act, even though the instant case was being litigated during this entire period. That Act only reflects an effort to provide collateral accommodations as, if, and when federal procurement follows state price-fixing. The mandate of 10 U.S.C. § 2305(a), 10 U.S.C.A. § 2305(a) is still unequivocal; and the statutory exceptions to competitive bidding contained in § 2304(a), discussed above, remain unchanged.
24
The 1962 Act fails to show a congressional purpose to abandon competitive bidding. On the contrary the purpose, as stated in S.Rep.No.1884, 87th Cong., 2d Sess., was to increase the efficacy of the competitive bidding system then in force.
25
Not only was the existing Regulation cited repeatedly with approval, but the aim of the Act was described in unambiguous terms:
26
'In general, the objectives of the changes are-
27
'(1) To encourage more effort to accomplish procurements by formal advertising;
28
'(2) To require a clearer justification before certain authorities to negotiate contracts are used;
29
'(3) To obtain more competition in negotiated procurement;
30
'(4) To provide safeguards for the Government against inflated cost estimates in negotiated contracts.' Id., p. 1.
31
The House received an equally unambiguous explanation from the floor manager of the bill:
32
'(T)his bill * * * has for its chief purpose, an increase in competitive purchasing. * * * (O)nly 13 percent of purchasing is now done by sealed competitive bidding. That is clearly not enough. Competition must be increased; competition must be had even in negotiated purchasing; and all negotiated purchasing must be further reduced.' Cong.Rec., June 7, 1962, p. 9234.
33
If there had been a desire to make federal procurement policy bow to state price-fixing in face of the contrary policy expressed in the Regulation, we can only believe that the objectives of the Act would have been differently stated. In sum, the references to rates or prices 'fixed by law or regulation' are merely minor collateral accommodations to those situations where, within the limits of the Regulation and the 1962 Act, the federal procurement official decides that the practical way to obtain the supplies or services is by following the state pricefixing or rate-fixing system.
34
California, however, says that whatever may be the federal policy as to purchases of milk for mess-hall use, purchases of milk for resale at federal commissaries stand on a different footing. These commissaries are 'arms of the Government deemed by it essential for the performance of governmental functions' and 'partake of whatever immunities' the Armed Services 'may have under the constitution and federal statutes.' Cf. Standard Oil Co. of California v. Johnson, 316 U.S. 481, 485, 62 S.Ct. 1168, 1170, 86 L.Ed. 1611. Purchases for resale at these federal commissaries are made from appropriated funds; and the procurement officers act under the same Regulation when they purchase milk for the commissaries as they do when they purchase it for mess-hall use. California points out, however, that the federal statute provides that where commodities are purchased for resale, they may be procured by negotiation rather than by formal advertising22-a provision we have quoted above and which was written into the law because purchases for commissaries 'are generally not made by specifications but by brand names.'23 Milk, however, does not fit the category of commodities for which that exception was designed. Moreover, the statutory exception to formal advertising is merely permissive; the procurement officer 'may' negotiate for articles to be resold but he is not required so to do. He is free to purchase by formal advertising from the responsible bidder whose bid 'will be the most advantageous to the United States.'24 Whether he negotiates milk contracts or uses competitive bidding is made dependent by the federal statute on his informed discretion, not on state price-fixing policies. Moreover, as, if, and when he negotiates, the Regulation, as already noted, requires price quotations 'from all such qualified sources of supplies or services as are demed necessary by the contracting officer to assure full and free competition * * * to the end that the procurement will be made to the best advantage of the Government, price and other factors considered.'25 And, to repeat, the procurement officer when he negotiates is controlled by 20 separate factors, one of which is 'comparison of prices quoted,'26 and none of which relates in any manner whatsoever to the price-fixing policies of a State.
35
The fact that the cost of products sold at commissaries benefits commissary purchasers does not make the commissary any the less a federal agency. Cf. Standard Oil Co. of California v. Johnson, supra. Congress authorizes the payment for commissary supplies from appropriated funds.27 The federal statutes dealing with procurement policies expressly make them applicable to all purchases 'for which payment is to be made from appropriated funds.'28 Congress, to be sure, has provided that commissaries may not use any appropriated funds 'unless the Secretary of Defense has certified that items normally procured from commissary stores are not otherwise available at a reasonable distance and a reasonable price in satisfactory quality and quantity to the military and civilian employees of the Department of Defense.'29 Here again, however, the question of what is a 'reasonable price' is left to the discretion of a federal officer. Congress has not directed that commissaries be removed from the purview of federal procurement policies; nor has it adopted state price-fixing policies as federal policies when it comes to purchases for commissaries or otherwise.
III.
36
What we have said would dispose of the entire case but for the fact that some of the milk was purchased out of nonappropriated funds for use in military clubs and for resale at post exchanges. This brings us to the question whether Congress has power to exercise 'exclusive legislation' over these enclaves within the meaning of Art. I, § 8, cl. 17, of the Constitution, which reads in relevant part: 'The Congress shall have Power * * * To exercise exclusive Legislation in all Cases whatsoever' over the District of Columbia and 'to exercise like Authority 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.'
37
The power of Congress over federal enclaves that come within the scope of Art. I, § 8, cl. 17, is obviously the same as the power of Congress over the District of Columbia. The cases make clear that the grant of 'exclusive' legislative power to Congress over enclaves that meet the requirements of Art. I, § 8, cl. 17, by its own weight, bars state regulation without specific congressional action. The question was squarely presented in Pacific Coast Dairy v. Department of Agriculture, 318 U.S. 285, 63 S.Ct. 628, 87 L.Ed. 761, which involved, as does the present litigation, California's Act and an attempt to fix the prices at which milk could be sold at Moffett Field. We held that 'sales consummated within the enclave cannot be regulated' by California because of the constitutional grant of 'exclusive legislation' respecting lands purchased by the United States with the consent of the State (id., at 294, 63 S.Ct., at 630), even though there was no conflicting federal Regulation.
38
Thus the first question here is whether the three enclaves in question were 'purchased by the Consent of the Legislature' of California within the meaning of Art. I, § 8, cl. 17.
39
The power of the Federal Government to acquire land within a State by purchase or by condemnation without the consent of the State is well established. Kohl v. United States, 91 U.S. 367, 371, 23 L.Ed. 449, 451. But without the State's 'consent' the United States does not obtain the benefits of Art. I, § 8, cl. 17, its possession being simply that of an ordinary proprietor. James v. Dravo Contracting Co., 302 U.S. 134, 141-142, 58 S.Ct. 208, 212, 82 L.Ed. 155. In that event, however, it was held in Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 541, 542, 5 S.Ct. 995, 1004, 29 L.Ed. 264, that a State could complete the 'exclusive' jurisdiction of the Federal Government over such an enclave by 'a cession of legislative authority and political jurisdiction.'
40
Thus if the United States acquires with the 'consent' of the state legislature land within the borders of that State by purchase or condemnation for any of the purposes mentioned in Art. I, § 8, cl. 17, or if the land is acquired without such consent and later the State gives its 'consent,' the jurisdiction of the Federal Government becomes 'exclusive.' Since 1940 Congress has required the United States to assent to the transfer of jurisdiction over the property, however it may be acquired.30 In either event-whether the land is acquired by purchase or condemnation on the one hand or by cession on the other-a State may condition its 'consent' upon its retention of jurisdiction over the lands consistent with the federal use. James v. Dravo Contracting Co., supra, 302 U.S. 146-149, 58 S.Ct. 214-216. Moreover, as stated in James Stewart & Co. v. Sadrakula, 309 U.S. 94, 99-100, 60 S.Ct. 431, 433-434, 84 L.Ed. 596:
41
'The Constitution does not command that every vestige of the laws of the former sovereignty must vanish. On the contrary its language has long been interpreted so as to permit the continuance until abrogated of those rules existing at the time of the surrender of sovereignty which govern the rights of the occupants of the territory transferred. This assures that no area however small will be left without a developed legal system for private rights.'
42
California has had several statutory provisions relevant to our problem under Art. I, § 8, cl. 17. One pertained to acquisition of land by the United States through 'purchase or condemnation.'31 Another concerned land 'ceded or granted' by California to the United States.32
43
Those provisions were codified in 1943, acquisitions by 'purchase or condemnation' appearing in one section33 and acquisitions by cession in another.34 Another section of the codification, after stating that California 'cedes' to the United States 'exclusive jurisdiction' over all lands 'held, occupied, or reserved' by the United States 'for military purposes or defense,' provides that a description of the land by metes and bounds and a map or plat of the land 'shall first be filed in the proper office of record in the county in which the lands are situated.'35
44
Most of the transactions creating these three federal enclaves took place between 1942 and 1944, some in 194636 and some even later.
45
Whether the United States has acquired exclusive jurisdiction over a federal enclave is a federal question. As stated in Silas Mason Co. v. Tax Commission, 302 U.S. 186, 197, 58 S.Ct. 233, 239, 82 L.Ed. 187:
46
'The question of exclusive territorial jurisdiction is distinct. That question assumes the absence of any interference with the exercise of the functions of the Federal Government and is whether the United States has acquired exclusive legislative authority so as to debar the State from exercising any legislative authority including its taxing and police power in relation to the property and activities of individuals and corporations within the territory. The acquisition of title by the United States is not sufficient to effect that exclusion. It must appear that the State, by consent or cession, has transferred to the United States that residuum of jurisdiction which otherwise it would be free to exercise. * * * In this instance, the Supreme Court of Washington has held that the State has not yielded exclusive legislative authority to the Federal Government. * * * That question, however, involving the extent of the jurisdiction of the United States, is necessarily a federal question.'
47
As already noted, a California statute 'cedes to the United States exclusive jurisdiction' over described lands provided a description of the metes and bounds and a map of the land first be filed.37 California earnestly argues that 'cedes' in that context includes 'purchases' and 'acquisitions by condemnation.' But the California statutes have consistently drawn the line between acquisitions by cession on the one hand and all other acquisitions on the other. That is the gist of a recent opinion of the Attorney General of California, in which he treats an acquisition by cession as an alternative to acquisition in other ways and rules that when the acquisition is by means other than cession no map of the land need first be filed.38 That seems to us to be the fair meaning of the statutory provisions.
48
The conditions expressed in the California Acts,39 by which California consented to 'the purchase or condemnation' of land by the United States for the prescribed purposes, do not undertake to make applicable to the federal enclaves all future laws of California. Since a State may not legislate with respect to a federal enclave unless it reserved the right to do so when it gave its consent to the purchase by the United States, only state law existing at the time of the acquisition remains enforceable, not subsequent laws. See James Stewart & Co. v. Sadrakula, supra; Arlington Hotel Co. v. Fant, 278 U.S. 439, 49 S.Ct. 227, 73 L.Ed. 447. If the price-control laws California is now seeking to apply to sales on federal enclaves were not in effect when the United States acquired these lands,40 the case is on all fours with Pacific Coast Dairy v. Department of Agriculture, supra. There the Court held that the California statutes under which some of the present acquisitions were made granted the United States exclusive jurisdiction over the tracts in question in spite of the express conditions therein contained (id., at 293, 63 S.Ct., at 630) and that this price control law was not enforceable on a federal enclave in California because it was adopted 'long after the transfer of sovereignty.' 318 U.S., at 294, 63 S.Ct. at 630. The United States seeks shelter under that rule, saying California is trying to enforce its current regulatory scheme, not the price regulations in effect when the purchases were made. Yet if there were price control of milk at the time of the acquisition and the same basic scheme has been in effect since that time, we fail to see why the current one, albeit in the form of different regulations, would not reach those purchases and sales of milk on the federal enclave made from nonappropriated funds. Congress could provide otherwise and has done so as respects purchases and sales of milk from appropriated funds. But since there is no conflicting federal policy concerning purchases and sales from nonappropriated funds, we conclude that the current price controls over milk are applicable to these sales, provided the basic state law authorizing such control has been in effect since the times of these various acquisitions. A remand will be necessary to resolve that question, as the present record does not show the precise evolution of the present regulatory scheme.
49
There also remains another uncertainty concerning the purchases and sales of milk out of nonappropriated funds. There is a dispute over where some of these sales are made. Each of the three enclaves has numerous units acquired at various times, some of which may be subject to 'exclusive' federal jurisdiction and some of which may not be. California earnestly claims that some sales out of nonappropriated funds were made on units of land over which the United States does not have 'exclusive' jurisdiction. She makes the claim as respects some milk used at Travis, some at Castle, and some at Oakland.
50
We do not resolve the question but vacate the judgment of the District Court insofar as it relates to purchases and sales of milk made from nonappropriated funds and remand the case to the District Court to determine whether at the respective times when the various tracts in question were acquired California's basic price-control law as respects milk was in effect. If so, judgment on this class of purchases and sales should be for appellants. If not, then the District Court must make particularized findings as to where the purchases and sales of milk from nonappropriated funds are made and whether or not those tracts are areas over which the United States has 'exclusive' jurisdiction within the meaning of Art. I, § 8, cl. 17 of the Constitution.
51
Moreover, the decree must be modified to reflect the change in federal procurement policy as respects producers, already noted.41
52
Accordingly the judgment is affirmed in part and in part vacated and remanded.
53
It is so ordered.
54
Judgment affirmed in part and in part vacated and remanded.
55
Mr. Justice STEWART, whom Mr. Justice HARLAN and Mr. Justice GOLDBERG join, dissenting in part.
I.
56
I do not doubt that Congress in the exercise of its war power1 could by virtue of the Supremacy Clause2 provide that an otherwise valid state law affecting the price of milk shall not apply to milk purchased with federal funds for use at these military installations. But I cannot agree that Congress has done so. I am unable to find either in the terms of the relevant legislation or in its history any evidence of a congressional purpose to immunize these federal purchases from the generally applicable California minimum price regulations. The California statutes regulating its milk industry are admittedly a valid exercise of that State's power to legislate for the general health and welfare of its people, and serve the important function of insuring stability in the production and supply of a vital commodity. In Penn Dairies v. Milk Control Comm. of Pennsylvania, 318 U.S. 261, 63 S.Ct. 617, 87 L.Ed. 748, the Court emphasized that '(a)n unexpressed purpose of Congress to set aside statutes of the states regulating their internal affairs is not lightly to be inferred and ought not to be implied where the legislative command, read in the light of its history, remains ambiguous.' 318 U.S., at 275, 63 S.Ct., at 623. I think that the congressional purpose in the present case is less than ambiguous-that Congress has in fact manifested a presumption and a desire that valid state welfare legislation such as this is not to be undermined by the procurement activities of the Federal Government.3
57
In the Penn Dairies case the Court held that the State of Pennsylvania could enforce its milk marketing statute against suppliers dealing with the federal military establishment. It was held that the federal procurement legislation then in effect contained no evidence of a policy to override state regulatory legislation of this type. 318 U.S., at 272-275, 63 S.Ct. at 622-623. A different result was reached in Public Utilities Comm. of State of California v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470, where the Court held that California could not apply its law regulating intrastate transportation rates to the carriage of strategic military supplies of the United States. The Court discussed at length the peculiarly burdensome effect that the state regulation there involved would have upon the shipment of this kind of freight, stressing the difficulty and delays involved in classifying such goods under existing state tariffs, and the importance to the national security of secrecy and rapid movement. 355 U.S., at 544-546, 78 S.Ct. at 453-454. Regardless of any impact on transportation costs, therefore, enforcement of the State's regulatory scheme was barred because it constituted a direct interference with the performance of a vital federal function. M'Culloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579. The opinion in the California Commission case also discussed the 1947 Armed Services Procurement Act,4 but nowhere suggested that the 1947 Act had changed the law upon which the decision in Penn Dairies had rested. Rather, the Court distinguished the Penn Dairies case on the ground that the Pennsylvania milk marketing statute had not subjected the National Government or its officers to any direct restraints, as did the California legislation. 355 U.S. 543-544, 78 S.Ct. 452-453.
58
The Court today abandons that distinction and for the first time suggests that the 1947 Act did in fact change the federal procurement policy in effect at the time of the Penn Dairies decision. I think this novel interpretation of the statute which is the basis of all federal procurement, civilian as well as military,5 is incorrect and that any doubt which could ever have existed on that score has been laid to rest by the amendment to the 1947 statute enacted at the last session of Congress.6
59
There is simply no support in any of the pertinent legislative materials for the conclusion that Congress, solely in order to save a few dollars, intended to permit federal agencies to subvert general and nondiscriminatory state regulatory measures which promote health, safety, or better working or economic conditions. Indeed, Congress has evidenced a directly contrary intention. Of course, as the decision in the California Commission case demonstrates, state law cannot be allowed to impair fulfillment of appropriate federal functions, be they civil or military; similarly, state measures contrary to national policy cannot be allowed to bind or inhibit federal activities. This case, however, presents no such problems. The only issue is whether Congress has or has not expressed a desire to bypass valid state regulatory legislation in the conduct of federal procurement activities.
60
The 1947 Armed Services Procurement Act was proposed to Congress jointly by the War and Navy Departments. During World War II, these Departments had run their procurement operations with a relatively free hand under the First War Powers Act, 55 Stat. 838, 50 U.S.C.A.Appendix, § 601 et seq. which authorized placement of contracts without regard to existing provisions of law regulating procurement procedures. The War Production Board had early determined that the traditional method of procurement by advertising for sealed competitive bids was unsatisfactory during wartime, and had adopted the practice of placing contracts by direct negotiation with suppliers.7 When the war ended the need arose to return to a peacetime system of procurement, and the 1947 bill was introduced to fill this need. At the same time, the military departments thought that the prewar procurement statutes weer 'woefully inadequate for supplying the tremendously expanding needs for military supplies and equipment,'8 and that 'a total reversion to prewar methods would be unfortunate in the extreme and would severely handicap the War and Navy Departments * * *.'9
61
Reflecting this attitude, the Departments stressed three major objectives of the new legislation they proposed:
62
'1. To modernize peacetime military procurement methods;
63
'2. To unify the procurement legislation under which the War and Navy Departments do their buying; and
64
'3. To permit suspension of advertising as a method of procurement upon the declaration of a national emergency.'10
65
The third purpose, to provide authority to suspend competitive bidding in a national emergency, was simply intended to eliminate the need for legislation in time of crisis and thus to enable the defense establishment to respond immediately to such emergencies.11 As for the second, prior to the war each branch of the armed services had been governed by its own separate, and sometimes unique, procurement legislation. The 1947 Act was intended to substitute a single statute for all military procurement.12
66
The proposal to 'modernize' the law was primarily a proposal to relax, in certain situations, the very strict rule requiring that almost all contracts be placed through advertising competitive bidding. Experience had shown that the formalized ritual of competitive bidding was often unwieldy and uneconomical. For example, competitive bidding was not suited to contracts involving secret projects, nor for contracts involving items for which there was no effective competition between sellers. For these types of procurement, the bill proposed direct negotiation between the Government and available suppliers. The heart of the proposed bill was § 2(c), now 10 U.S.C. § 2304(a), 10 U.S.C.A. § 2304(a), which set out a list of 15 specific exceptions to the rule of competitive bidding.13
67
The bill was reported out and passed in essentially the same form as proposed. Both the House and Senate Reports made clear that the purposes of the bill remained the same. The House Report began by saying, 'This bill provides uniform purchase authority for the Army and Navy, and reestablishes the requirement that the advertising-competitive bid method shall be followed by those Departments in placing the great majority of their contracts for supplies and services.'14 The Report went on to acknowledge that there are 'a limited number of situations (in which) the public interest requires that purchases be made without advertising,' and it listed most of the specific exceptions proposed by the War and Navy Departments.15 It was at this point, after describing the purpose to unify procurement laws and to relax the previously rigid advertising requirements, that the House Report summed up by describing the bill as 'a comprehensive revision and restatement of the laws governing the procurement of supplies and services by the War and Navy Departments.' Id., at 6.16
68
The background of the 1947 Act thus makes it abundantly clear that the 'revision and restatement' of law involved in its formulation had absolutely nothing to do with the issue dealt with in Penn Dairies and presented by the case now before us. The dissatisfaction with existing prewar procurement law centered upon its lack of uniformity and its apparent insistence upon the ritual of competitive bidding in situations for which such procedures were unsuited. Neither of these major concerns touched upon the problem presented by the present case-whether federal procurement transactions were to undermine valid state laws regulating price.17
69
Evidence is not lacking, however, of the attitude of Congress with respect to that problem, and I think such evidence clearly shows that Congress presumed and intended that federal procurement was to be conducted subject to valid state price and rate regulation of otherwise general applicability.
70
First, it is clear from the Act itself that Congress was not willing to override other important social and economic policies in blind pursuit of the lowest possible purchasing price. The Act commands procurement officers to consider many other factors in addition to price. For instance, § 8 directs compliance with the Walsh-Healey Act, the Davis-Bacon Act and the Eight Hour Law.18 And in § 2(b) Congress declared that a fair proportion of purchases and contracts made under the chapter should be placed with small business.19
71
Secondly, while the legislative history of the 1947 Act contains only a few references to the specific problem of priceregulated industries, these references clearly reflect an acknowledgment that state price regulations are to apply to suppliers doing business with the Government. The statements in question relate to § 2(c)(10) of the bill as enacted, now 10 U.S.C. § 2304(a) (10), 10 U.S.C.A. § 2304(a)(10). The subsection provides that the head of an agency need not employ the advertised bid method when
72
'(10) the purchase or contract is for property or services for which it is impracticable to obtain competition.'
73
This exception to the normal bidding procedure was first enacted in the Army Appropriations Act of 1901, 31 Stat. 905. Until 1947 it applied only to Army procurement, and one of the purposes of the Act was to make the exception applicable to all services.20 In explaining the existing law on this subject, Under Secretary Royall of the War Department, chief spokesman for that Department, made the following remarks:
74
'As to the exception which deals with supplies or services for which it is impracticable to secure competition, this language originally appeared in the act of March 2, 1901 (31 Stat. 1905; 10 U.S.C. 1201 (10 U.S.C.A. § 1201)), and has been the subject of a number of highly restrictive administrative interpretations. In my opinion, this exception is intended to apply in at least these three situations:
75
'1. Where the nature of the supply or service is such that only one person can furnish it, for example, a patented or secret article.
76
'2. Where the price of the supply or service has been legally fixed.
77
'3. Where the practical circumstances are such that it would be difficult to secure real competitive proposals by means of advertising for formal bids.' (Emphasis added.)21
78
The Senate Report expressly acknowledged the applicability to federal procurement activities of laws regulating prices.
79
'The experiences of the war and contracts negotiated since the war in the fields of stevedoring, ship repairs, chartering of vessels, where prices are set by law or regulation, or where there is a single source of supply, have shown clearly that the competitive-bid-advertising method is not only frequently impracticable but does not always operate to the best interests of the Government.' (Emphasis added.)22
80
The plain meaning of these references to price regulation is that both Congress and the Departments concerned assumed such price regulation would apply to government purchases. Unless this assumption is made, there would be no reason for believing that competition would be 'impracticable' in these areas. For, absent the duty of suppliers to comply with uniform price regulations, it would not be 'impracticable' to advertise for bids at competitive prices.
81
Apart from the clear import of these references, it is also significant to note that both the Departments and the sponsoring congressional committees were aware of the fact that governmental price fixing would affect the nature of competition for procurement contracts. Yet not once did any spokesmen for the Departments question or even mention the rule of the Penn Dairies decision, of which they could hardly have been unaware.23 Indeed, they consistently testified that § 2(c)(10) was, as to regulated prices, merely a restatement of the existing law.24
82
Despite this clear legislative history, it is said that the statutory authorization to 'negotiate' in cases where competitive bidding is not appropriate reflects a policy to allow procurement officers to bargain for prices lower than those set by state regulatory agencies.25 If all we had to go on were this provision of the 1947 Act, there might be an arguable basis for an inference of such a federal procurement policy, since the 1947 statute nowhere defined the word 'negotiation.'26 Just last year, however, Congress added an amendment to the Act, in which it defined 'negotiation' for the first time. Although the definition generally adopts and implements the ordinary meaning of the word-to bargain for a lower price-it expressly excepts price-regulated transactions. The amendment provides in pertinent part:
83
'(g) In all negotiated procurements in excess of $2,500 in which rates or prices are not fixed by law or regulation and in which time of delivery will permit, proposals shall be solicited from the maximum number of qualified sources consistent with the nature and requirements of the supplies or services to be procured, and written or oral discussions shall be conducted with all responsible offerors who submit proposals within a competitive range, price, and other factors considered. * * *'27 (Emphasis added.) In the words of the floor manager of the bill in the House, price-regulated transactions were excepted because they were 'instances where it would be futile to have discussions.'28 In short, it is clear that Congress has now explicitly declared what was adumbrated in the legislative history of the 1947 Act-that federal procurement is to be conducted subject to valid state price and rate regulations of otherwise general applicability.29
84
While the Court's opinion discusses this legislative history, I read the opinion as resting primarily on the Court's reading of certain executive regulations issued under the authority of the procurement law. In this I think the Court errs-for two reasons. First, if I am right in the view that the statute recognizes that federal procurement is not to be immunized from the impact of valid state economic legislation, then any regulations to the contrary are completely invalid. Williamson v. United States, 207 U.S. 425, 462, 28 S.Ct. 163, 177, 52 L.Ed. 278; Lynch v. Tilden Produce Co., 265 U.S. 315, 321-322, 44 S.Ct. 488, 489-490, 68 L.Ed. 1034; United States v. Barnard, 10 Cir., 255 F.2d 583, 588-589. Secondly, I think that the regulations upon which the Court relies do not speak with so clear a voice as the Court would have us believe. The Court can find not a single regulation of either general or specific application which says, in so many words, that a procurement officer may in his discretion negotiate a contract in disregard of valid state price regulation.
II.
85
I agree with the conclusion in Part III of the Court's opinion that it is not now possible to undertake final resolution of the Government's claim that the sales of milk involved in this case take place on federal enclaves within the scope of Art. I, § 8, cl. 17, and therefore are immune from state regulation under the rule of Pacific Coast Dairy v. Department of Agriculture, 318 U.S. 285, 63 S.Ct. 628, 87 L.Ed. 761. Even if these military installations are now such federal enclaves, this claim will be moot if the substance of California's milk regulation scheme antedated the acquisition of exclusive jurisdiction by the Federal Government. The concept of exclusive jurisdiction 'has long been interpreted so as to permit the continuance until abrogated of those rules existing at the time of the surrender of sovereignty * * *.' James Stewart & Co. v. Sadrakula, 309 U.S. 94, 99, 60 S.Ct. 431, 434, 84 L.Ed. 596. This question of priority cannot be decided on the record before us, and its resolution, therefore, first requires a remand of the case to the District Court. If I am right in my view of the federal procurement law, a finding that state regulation was imposed before these military installations became federal enclaves within the scope of the constitutional provision would mean that all sales of milk at issue in this case, regardless of the source of funds, would be subject to the legislation which California has validly enacted to stabilize and make economically sound the business of producing and marketing a commodity vital to the health and welfare of her people.
1
The United States has abandoned a further claim that California cannot constitutionally enforce her price regulations against producers with respect to milk sold to distributors for processing and ultimately resold to the United States. The abandonment of this claim is not a confession of error but only a decision not to assert immunity from that price control as a matter of procurement policy.
It appears that while California has authorized her Director of Agriculture to establish minimum wholesale prices for both 'fluid milk' and 'fluid cream,' and that while the Director has done so for a marketing area encompassing another base, all of the minimum wholesale price regulations appearing in the record pertain only to 'fluid milk.'
'In view of these facts, the case now involves only California's power to enforce her minimum wholesale prices for 'fluid milk' with respect to sales to the United States at the three bases involved.
2
Article I, § 8, cl. 17, of the Constitution gives Congress power '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.'
3
Calif.Agr.Code, § 4350.
4
Id., § 4352.
5
Id., § 4361.
6
Id., § 4410.
7
10 U.S.C. § 2305(c), 10 U.S.C.A. § 2305(c). This statute is a recodification without substantial change of the Armed Services Procurement Act of 1947. See S.Rep. No. 2484, 84th Cong., 2d Sess. 19, 20-21.
8
Id., § 2304(a)(8)(9)(10)(15).
9
Armed Services Procurement Regulation, (revised to April 20, 1959), 1-301.
10
Ibid.
11
Id., 1-302.2.
12
Id., 1-301.
13
Id., 3-801.1.
14
Id., 3-101(a) (Army Procurement Procedure).
15
Id., 3-101.
16
Ibid.
17
Ibid.
18
10 U.S.C. § 2304(a)(10), 10 U.S.C.A. § 2304(a)(10).
19
H.R.Rep.No.109, 80th Cong., 1st Sess. p. 6.
20
Section 2304(f), which incorporates the Walsh-Healey Act (41 U.S.C. § 35-45, 41 U.S.C.A. §§ 35-45), the Davis-Bacon Act (40 U.S.C. § 276a, 40 U.S.C.A. § 276a), and the Eight Hour Law (40 U.S.C. §§ 324, 325a, 40 U.S.C.A. §§ 324, 325a).
21
The ill which § 2304(g) was designed to cure was a service-employed negotiating process which did not always produce low enough prices. Informal quotations, usually accompanied by a breakdown of cost elements, were first secured from as many sources as practicable. Separate negotiations with only a few low bidders were then undertaken in order to reduce the price by eliminating unnecessary or unjustified charges. Congress and the Comptroller General condemned this kind of 'negotiation' because:
'It is our opinion that the authority to negotiate does not, of itself, warrant the curtailment of competition. Yet this may be the result where several proposals are received and the contracting officer decides to negotiate with only one offeror or to award a contract without discussion with any offeror. * * * We believe that * * * negotiations (should be conducted) with all responsible offerors who submit proposals within a competitive range, price and other factors considered.' H.R.Rep.No.1959, 86th Cong., 2d Sess. 17. See also S.Rep.No.1900, 86th Cong., 2d Sess. 27; S.Rep.No.1884, 87th Cong., 2d Sess. 8-9, 21-22; H.R.Rep.No.1638, 87th Cong., 2d Sess. 4-5.
The exact meaning of the 'rates or prices * * * fixed by law or regulation' exception to this 'discussion' requirement is not too clear. The one short reference to § 2304(g) in the congressional debates implies that a procurement officer could accept any price set 'by law or regulation' without attempting to get a better price from the offeror:
'Section (e) of the bill (§ 2304(g)) defines what actions shall constitute a negotiation. It requires that there be discussions between
bidder and Government excepting in those limited instances where it would be futile to have discussions; for example, prices fixed by ratemaking authority or where there is an established market, as in foodstuffs.' Cong.Rec., June 7, 1962, p. 9234.
But in view of the history of the 'impracticable to obtain competition' exception in § 2304(a)(10), with which this exception to the discussion requirement is linked (see S.Rep.No.1900, 86th Cong., 2d Sess. 12), and the holding in California Comm., 355 U.S., at 542-543, 78 S.Ct., at 451-452, it is impossible to read this exception either as requiring procurement by negotiation rather than by competitive bidding-or as absolutely prohibiting negotiation when prices are fixed by state law.
Section 2304(a)(10), came to the 1947 Act from earlier Army procurement statutes. See H.R.Rep.No.109, 80th Cong., 1st Sess. 8. It was 'intended to place the maximum responsibility for decisions as to when it is impracticable to secure competition in the hands of the agency concerned.' S.Rep.No.571, 80th Cong., 1st Sess. 8. The House floor manager explained:
'This subsection will permit the services to negotiate contracts in situations where there is an absence of competitive conditions. The most typical situation involves an article which can be obtained from only one supplier. But the authority will be available even where there are multiple sources if real competition is nonetheless lacking.' (Emphasis added.) 93 Cong.Rec. 2319.
Negotiation was authorized in exceptional situations, such as § 2304(a)(10), to 'promote the best interests of the Government.' Ibid. See id., at 2316.
In order to allay fears by some that 'negotiation' 'means * * * the selection by more or less arbitrary methods of a supplier and the payment to him of a price which he has been able to set without fear of competition * * *,' the floor manager explained that:
'Experience has shown that by careful negotiation and by drafting a suitable contract it is frequently possible to secure substantial savings for the Government. In fact, negotiation properly employed often promotes and intensifies competition.' Id., at 2320.
It is now suggested that certain statements by witnesses at Committee Hearings show that by enacting § 2304(a)(10) Congress indicated
that it did not intend to allow the services to seek prices lower than those established by state regulatory agencies. Clearly those statements reinforce the congressional purpose to allow 'negotiation' 'where prices are set by law or regulation.' S.Rep.No.571, 80th Cong., 1st Sess. 8. See Hearings on H.R. 1366 before the Senate Committee on Armed Services, 80th Cong., 1st Sess. 15 (July 1, 1947); Hearings on H.R. 1366 and H.R. 3394 before the Senate Committee on Armed Services, 80th Cong., 1st Sess. 29; Hearings on H.R. 1366 before Subcommittee No. 6 of the House Committee on Armed Services, 80th Cong., 1st Sess., No. 51, at 521. But they in no way suggest that negotiations must be had unless they will 'promote the best interests of the Government' (93 Cong.Rec. 2319), and they do not imply that the regulated price must be accepted.
From the Committee reports and congressional debates previously cited, it seems that a recent Senate report, issued after California Comm. was decided, correctly interprets the purpose of § 2304(a)(10):
'An examination of the 15 illustrative circumstances in which Exception 10 may be used readily reveals that some of these circumstances necessarily involve only one source of supply. Others offer the opportunity for competition.' S.Rep.No.1900, 86th Cong., 2d Sess. 12.
One of the illustrations was 'Stevedoring, terminal services, when rates are prescribed by law.' Ibid.
22
10 U.S.C. § 2304(a)(8), 10 U.S.C.A. § 2304(a)(8).
23
S.Rep.No.571, 80th Cong., 1st Sess. 7.
24
10 U.S.C. § 2305(c), 10 U.S.C.A. § 2305(c).
25
Armed Services Procurement Regulation (revised to April 20, 1959), 3-101.
26
Ibid.
27
See, e. g., 75 Stat. 377.
28
10 U.S.C. § 2303, 10 U.S.C.A. § 2303.
29
75 Stat. 377-378.
30
40 U.S.C. § 255, 40 U.S.C.A. § 255 provides in part:
'Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required; but the head or other authorized officer of any department or independent establishment or agency of the Government may, in such cases and at such times as he may deem desirable, accept or secure from the State in which any lands or interests therein under his immediate jurisdiction, custody, or control are situated, consent to or cession of such jurisdiction, exclusive or partial, not theretofore obtained, over any such lands or interests as he may deem desirable and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of such State or in such other manner as may be prescribed by the laws of the State where such lands are situated. Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted.'
31
Cal.Stat.1939, c. 710, § 34, provides:
'The Legislature consents to the purchase or condemnation by the United States of any tract of land within this State for the purpose of erecting forts, magazines, arsenals, dockyards, and other needful buildings, upon the express condition that all civil process issued from the courts of this State, and such criminal process as may issue under the authority of this State, against any person charged with crime, may be served and executed thereon in the same mode and manner and by the same officers as if the purchase or condemnation had not been made and upon the further express condition that the State reserves its entire power of taxation with respect to such tracts of land and may levy and collect all taxes now or hereafter imposed in the same manner and to the same extent as if this consent had not been granted.'
32
Ibid.:
'The authority to serve civil and criminal process and power to tax hereinabove reserved to the State in the case of the purchase or condemnation by the United States of any tract of land within this State shall, any law to the contrary notwithstanding, also be reserved to the State with respect to any tract of land over which any jurisdiction is ceded or granted by the State to the United States under any law of this State now in effect or which may hereafter be adopted, the authority and power herein reserved by the State to be exercised in the same manner and to the same extent as if such jurisdiction had not been ceded or granted by the State to the United States.'
33
Calif.Gov.Code, § 111.
34
Id., § 113.
35
Id., § 114.
36
In the case of Oakland, the United States having first accepted jurisdiction in 1943, accepted again in 1949 after enactment in 1946 (Calif.Gov.Code, § 126) of a new and expanded statutory provision whereby California gave its consent 'to the acquisition' by the United States of land in that State. This provision required that findings be made by the State Lands Commission, after hearings, that the statutory conditions had been met. The Commission made the findings describing by metes and bounds three parcels of land at Oakland as respects which California consented to the 'exclusive' jurisdiction of the United States.
37
Note 35, supra.
38
23 Op.Atty.Gen.Calif. 14.
39
Note 31, supra.
40
We do not reach the question that would be presented where a state law in effect at that time was later repealed and subsequently reenacted.
41
See note 1, supra.
1
U.S.Const. Art. I, § 8, cl. 12.
2
U.S.Const. Art. VI, cl. 2.
3
It is to be emphasized that the issue in this case is not whether federal procurement officers must themselves undertake to enforce regulatory state laws. The scope of the state regulatory system and its validity are questions properly reserved for state agencies and courts, acting upon members of the regulated industry, subject to review by this Court of any federal issues presented. The only issue in this case is whether a State may itself enforce its regulatory legislation against those who deal with the Federal Government.
4
62 Stat. 21, as amended, 10 U.S.C. §§ 2301-2314, 26 U.S.C.A. §§ 2301-2314.
5
It should be noted that the Court's decision today is likely to affect federal as well as state price regulation. For example, a large part of the milk marketing regulation in the United States is presently accomplished under federal marketing orders pursuant to § 8c of the Agricultural Adjustment Act, as amended, 7 U.S.C. § 608c, 7 U.S.C.A. § 608c. See 7 CFR § 1001 et seq. Federal marketing orders typically maintain minimum producer prices, and this regulation, in turn, has the effect of maintaining a certain level of handler prices. See, e. g., Lehigh Valley Coop. Farmers, Inc. v. United States, 370 U.S. 76, 78-83, 82 S.Ct. 1168, 1170-1172, 8 L.Ed.2d 345. It is perhaps for this reason that the Government has abandoned its attack upon Calif
ornia's producer price regulation in the present case. The Government's change of position, however, is only a matter of discretion, and it can hardly be contended that a scheme of producer price maintenance would be any less in conflict with the Court's view of federal procurement policy.
I fail to see how the Court can limit its finding of conflict to state regulatory systems. Any thought that federal milk regulation may somehow be distinguishable necessarily supposes that Congress would have desired immunity from the burdens of state regulatory laws while at the same time acquiescing to the very same economic burdens when they arise under a federal marketing order-an assumption not only incongruous but also inconsistent with express congressional policy to treat both state and federal marketing legislation as complementary parts of a single scheme.
'(I)n order to obtain uniformity in the formulation, administration, and enforcement of Federal and State programs relating to the regulation of the handling of agricultural commodities or products thereof, (the Secretary is directed) to confer with and hold joint hearings with the duly constituted authorities of any State, and is authorized to cooperate with such authorities * * *.' 7 U.S.C. § 610(i), 7 U.S.C.A. § 610(i).
The problem is not academic. It has already arisen in one unreported case in which a handler selling to a military installation asserted immunity from an otherwise applicable federal marketing order on the ground that the order was in conflict with military procurement policy. The district judge rejected the contention on the ground that any increase in cost would be justified by the Government's interest in maintaining a stable supply of milk. Knudsen Bros. Dairy, Inc., v. Benson, Civil No. 8145 (D.C.D.Conn., August 18, 1960).
6
Since the present case calls for an in futuro injunction against enforcement of state regulatory statutes, all federal laws currently in force are relevant to our decision.
7
W.P.B.Directive No. 2, March 3, 1942. See Hearings on H.R. 1366 before Subcommittee No. 6 of the House Committee on Armed Services, 80th Cong., 1st Sess., No. 51, at 469 (February 4, 1947). (Hereinafter cited as February House Hearings.)
8
February House Hearings, at 469 (statement of W. J. Kenney, Assistant Secretary of the Navy).
9
Hearings on H.R. 1366 and H.R. 3394 before the Senate Committee on Armed Services, 80th Cong., 1st Sess. 8 (June 24, 1947) (statement of Secretary Kenney). (Hereinafter cited as June Senate Hearings.)
10
Id., at 7.
11
See, e.g., February House Hearings, at 469.
12
Ibid.
13
Ibid. See also Hearings on H.R. 1366 and H.R. 1382 before Subcommittee No. 6 of the House Committee on Armed Services, 80th Cong., 1st Sess., No. 4, at 27 (January 13, 1947) (statement of Robert P. Patterson, Secretary of War). (Hereinafter cited as January House Hearings.)
14
H.R.Rep.No.109, 80th Cong., 1st Sess. 3.
15
Ibid.
16
Id., at 6. The Senate Report said substantially the same thing. S.Rep.No.571, 80th Cong., 1st Sess. 1-2. See also 93 Cong.Rec. 2319.
17
Nothing to the contrary can be derived from statements describing the bill as a return to a general rule of competitive bidding. Any legislation reactivating peacetime procurement methods would inevitably be a return to competitive bidding after a wartime regime of procurement by negotiation.
18
62 Stat. 24, as amended, 10 U.S.C. § 2304(f), 10 U.S.C.A. § 2304(f). See S.Rep.No.571, 80th Cong., 1st Sess. 20.
19
62 Stat. 21, as amended, 10 U.S.C. § 2301, 10 U.S.C.A. § 2301.
20
February House Hearings, at 521 (statement of Colonel P. W. Smith); June Senate Hearings, at 29 (statement of Secretary Kenney).
21
Hearing on H.R. 1366 before the Senate Committee on Armed Services, 80th Cong., 1st Sess. 15 (July 1, 1947). (Hereinafter cited as July Senate Hearings.) Secretary Royall repeated the explanation in a colloquy with Senators Byrd and Kilgore. Id., at 23.
22
S.Rep.No.571, 80th Cong., 1st Sess. 8.
23
The Departments' request for authority to attack bid prices which 'were not independently reached in open competition,' 10 U.S.C. § 2304(a)(15), 10 U.S.C.A. § 2304(a)(15), dealt with the altogether different problem of collusive pricing of the type generally violative of the antitrust laws. The Senate Report on the 1947 Act explains:
'This paragraph will be most useful to break collusive bidding, follow-the-leader pricing, rotated low bids, identical bids requiring drawing of lots, uniform estimating systems, refusal to classify the Government as other than a retail buyer regardless of the quantity purchased, and similar practices. In such situations the Government should have the power to inquire into the reasons why it is not securing the benefits of competition. It should be able to call for facts and figures and to negotiate to eliminate unwarranted charges, excessive reserves for contingencies, commissions or brokerage charges, and unwarranted profits.
'On this same subject another new subsection has been added. It will require reference of bids suspected of not being arrived at by open competition to the Attorney General for appropriate action under the antitrust laws.' S.Rep.No.571, 80th Cong., 1st Sess. 4-5. See also January House Hearings, at 26; June Senate Hearings, at 9.
24
See testimony cited in notes 20 and 21, supra.
25
The relevant provision of the 1947 Act provided: 'All purchases and contracts for supplies and services shall be made by advertising * * * except that such purchases and contracts may be negotiated by the agency head without advertising if-
'(10) for supplies or services for which it is impracticable to secure competition * * *.' § 2(c), 62 Stat. 21.
26
The only approximation of a definition by the Departments proposing the bill was the statement that: 'Negotiation includes any manner of effecting procurement other than advertising.' February House Hearings, at 427.
27
Public Law 87-653, 76 Stat. 528. The Senate Report explains that the amendment fills the void created by the fact that '(e)xisting procurement law does not define the word 'negotiation' except to indicate that it means 'make without formal advertising." S.Rep. No. 1884, 87th Cong., 2d Sess. 2. See also H.R.Rep. No. 1638, 87th Cong., 2d Sess. 4-5.
28
Cong.Rec., June 7, 1962, p. 9234. In explaining the amendment to the House subcommittee, committee counsel similarly described the exception for price regulated transactions as one where 'negotiation would be futile or meaningless.' Hearings on H.R. 5532 before Subcommittee No. 3 of the House Committee on Armed Services, 87th Cong., 2d Sess., No. 51, at 5071 (April 10, 1962).
29
Further illumination of this policy is furnished by subsection (e) of the 1962 Act, 76 Stat. 528, amending 10 U.S.C. § 2306, 10 U.S.C.A. § 2306. After providing that in certain circumstances contractors must certify the correctness of their cost or pricing data, subsection (e) then makes an exception for situations in which there will be little question as to ultimate price:
'Provided, That the requirements of this subsection need not be applied to contracts or subcontracts where the price negotiated is based on adequate price competition, established catalog or market prices of commercial items sold in substantial quantities to the general public, prices set by law or regulation or, in exceptional cases where the head of the agency determines that the requirements of this subsection may be waived and states in writing his reasons for such determination.' (Emphasis added.)
| 89
|
371 U.S. 392
83 S.Ct. 385
9 L.Ed.2d 390
Michael CLEARY, Petitioner,v.Edward BOLGER.
No. 57.
Argued Nov. 14 and 15, 1962.
Decided Jan. 14, 1963.
Irving Malchman, New York City, for petitioner.
Joseph Aronstein, New York City, for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This case draws in question the propriety of the issuance of a federal injunction restraining petitioner, a state officer, from giving evidence in a pending state criminal prosecution and a state administrative proceeding.
2
The facts, as found by the two lower courts, are as follows. About 8:30 one Saturday morning in September 1959 federal Customs officers observed respondent, a hiring agent and longshoreman licensed by the Waterfront Commission of New York Harbor, enter a deserted pier, carry out a cardboard carton, and place it in a car parked at the pier entrance. The officers, who were concerned about the recent frequency of thefts, particularly of liquor, in the New York waterfront area, followed respondent's car for a short distance and then ordered him to stop. A search of the automobile revealed that the cardboard carton contained only empty soda bottles, but that the glove compartment contained a number of spark plugs and windshield wipers, some of which were stamped 'Made in England.' Respondent was asked whether he had obtained any liquor from the piers, and he admitted that he had six or eight bottles at home which he had purchased from members of ships' crews who in turn, he said, had bought them from ships' stores.
3
The agents then took respondent into custody; he was brought to the Customs office, denied permission to use the telephone, and questioned until shortly before 11 a.m. During this period he signed a document consenting to a search of his home by the Customs officers, who had told him that the consent form was unnecessary since they already had enough information to warrant a search but that he might as well sign it to save them trouble. He had at first refused to sign such a consent without consulting a lawyer. The agents then drove respondent to his home in New Jersey and, without a search warrant, gave it a thorough search, which uncovered some 75 bottles of liquor, a Stenorette tape recording machine made in West Germany, and various other items of apparent foreign origin, such as perfumes, linens, costume jewelry, etc. These articles, thought to have been illegally acquired, were brought back to Customs headquarters in New York, where, starting about 4 p.m., respondent was again questioned.
4
By this time the Waterfront Commission, a bi-state agency of New York and New Jersey1 which worked in close cooperation with the Customs Service in matters of law enforcement on the waterfront, had been informed of respondent's arrest, and two Commission detectives were present when the interrogation resumed. Petitioner Cleary was one of these detectives. After respondent had revealed that he maintained a tool room in the basement of an apartment house in New York, petitioner and a Customs officer accompanied respondent to this tool room, but nothing suspicious was discovered and they returned to Customs headquarters at 5:45 p.m.
5
After he had been told that he did not have to make a statement, respondent was sworn and interrogated by Customs officers in the presence of a Customs Service reporter, who recorded the questions and answers verbatim. Petitioner was present and could have participated in the questioning, though he did not do so.2 Respondent admitted that with the exception of a few items that he had purchased from crew members most of the articles seized at his home had been taken by him from piers where he worked. He also said that he had taken the Stenorette tape recorder from a lighter moored at one of the piers. At 7:30 p.m. respondent was released.
6
No charges were lodged against respondent by the federal authorities. But a month later he was arrested by the New York City police on a charge of grand larceny for the theft of the Stenorette tape recorder, and shortly thereafter the Waterfront Commission temporarily suspended his licenses as hiring agent and longshoreman. The criminal charge was subsequently reduced to petit larceny and scheduled for trial in the Court of Special Sessions of New York City. A hearing looking to the revocation of respondent's licenses was deferred by the Waterfront Commission pending the outcome of the criminal case.
7
After the petit larceny charge had been set for trial, respondent instituted the present action in the United States District Court for the Southern District of New York seeking to enjoin the federal Customs officers and petitioner from using in evidence any of the seized property or his incriminating statement, and from testifying with respect thereto, in the state criminal trial or Waterfront Commission proceeding. He also sought return of the seized property.3 The basis for the action was the claim that the seized property and the incriminating statement were the products of illegal conduct on the part of the federal officers.
8
The District Court granted such relief, limited however, to the property seized at respondent's home, to the incriminatory statement made following his arrest, and to testimony respecting these matters.4 It held that the search and seizure at respondent's home violated Rule 41(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.,5 in that it had been made without a search warrant, and that his incriminating statement had been procured in violation of Rule 5(a) of those Rules,6 in that respondent had not been taken before a United States Commissioner within a reasonable time after his arrest, and was also 'the result * * * of the illegal search and seizure.' In consequence of these illegalities an injunction against the federal officers was thought to follow. An injunction against petitioner was deemed necessary to make the injunction against the federal officials effective. D.C., 189 F.Supp. 237. The Court of Appeals affirmed by a divided vote. 2 Cir., 293 F.2d 368. Since the use of federal equity power in the premises presented important questions touching upon federalstate relationships in the realm of state criminal prosecutions, we brought the case here. 368 U.S. 984, 82 S.Ct. 602, 7 L.Ed.2d 522.
9
Accepting for present purposes the holdings of the two lower courts with respect to the conduct and enjoinability of the federal officers, we nevertheless conclude that the injunction against this petitioner was improvidently issued.7
10
Courts of equity traditionally have refused, except in rare instances, to enjoin criminal prosecutions. This principle 'is impressively reinforced when not merely the relations between coordinate courts but between coordinate political authorities are in issue.' Stefanelli v. Minard, 342 U.S. 117, 120, 72 S.Ct. 118, 120, 96 L.Ed. 138. It has been manifested in numerous decisions of this Court involving a State's enforcement of its criminal law. E.g., Pugach v. Dollinger, 365 U.S. 458, 81 S.Ct. 650, 5 L.Ed.2d 678; Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324; Watson v. Buck, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416; Beal v. Missouri Pac. R. Co., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577. The considerations that have prompted denial of federal injunctive relief affecting state prosecutions were epitomized in the Stefanelli case, in which this Court refused to sanction an injunction against state officials to prevent them from using in a state criminal trial evidence seized by state police in alleged violation of the Fourteenth Amendment:
11
'(W)e would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law—with its far-flung and undefined range—would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court, to determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand and petit juries, in the failure to appoint counsel, in the admission of a confession, in the creation of an unfair trial atmosphere, in the misconduct of the trial court—all would provide ready opportunities, which conscientious counsel might be bound to employ, to subvert the orderly, effective prosecution of local crime in local courts. To suggest these difficulties is to recognize their solution.' 342 U.S., at 123—124, 72 S.Ct. at 121, 122.
12
The two courts below recognized the validity of these considerations but thought that injunctive relief was nonetheless required by Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233. In that case the accused had been indicted in a federal court and had moved for an order under Rule 41(e) of the Federal Rules of Criminal Procedure suppressing the use in evidence of certain narcotics seized under a search warrant invalid on its face. The District Court granted the motion. Despite the order, however, one of the federal officers who had secured the search warrant caused the accused to be rearrested and charged, in a state court, with possession of the same narcotics in violation of a state statute, and threatened to make the State's case by his testimony based on the evidence seized under the illegal federal warrant. The accused then moved in the Federal District Court to enjoin the federal agent from testifying in the state proceeding. This Court, invoking its 'supervisory powers over federal law enforcement agencies' (id., at 216—217, 76 S.Ct. at 294), reversed the denial of an injunction and directed that the requested relief be granted in order to prevent frustration of the Federal Rules under which suppression had been ordered.8 Both lower courts in the present case evidently took Rea to mean that federal officers transgressing the Federal Rules of Criminal Procedure may always be enjoined from utilizing their ill-gotten gains in a state criminal prosecution against the victim or from directly or indirectly passing them along to state authorities for such use.9
13
We need not, however, determine in this instance the correctness of the lower courts' broad reading of the Rea case, cf. Wilson v. Schnettler, 365 U.S. 381, 81 S.Ct. 632, 5 L.Ed.2d 620, on the basis of which the federal officers here were enjoined.10 For in any event Rea does not support the injunction against this petitioner, a state official. The Court in Rea was at special pains to point out that the federal courts were not there 'asked to enjoin state officials nor in any way to interfere with state agencies in enforcement of state law,' 350 U.S., at 216, 76 S.Ct. at 294, and further that '(n)o injunction is sought against a state official,' id., at 217, 76 S.Ct. at 294. The opinion is barren of any suggestion that any inroads on Stefanelli were intended.
14
It is no answer to say, as the Court of Appeals did, that this petitioner 'is not being enjoined in his capacity as a state official, but as a witness invited to observe illegal activity by federal agents,' 2 Cir., 293 F.2d, at 369. For it is abundantly clear that the petitioner was present at these occurrences precisely and only because of his official connection with the Waterfront Commission. The District Court expressly found that it was '(t)he Waterfront Commission,' not petitioner, which 'had been informed of (respondent) Bolger's detention,' D.C., 189 F.Supp., at 244, and that petitioner 'was present at the questioning (of Bolger) as a representative of the Waterfront Commission,' id., at 255.
15
Nor can the injunctive relief against this petitioner find justification in the rationale that it was required in order or make the injunction against the federal officers effective. Such relief as to him must stand on its own bottom. We need not decide whether petitioner's status as a state official might be ignored had it been shown that he had misconducted himself in this affair, that he had been utilized by the federal officials as a means of shielding their own alleged illegal conduct, or that he had received the evidence in direct violation of a federal court order. Here the District Court found that petitioner was not a factor in the federal investigation11 and that his presence there was simply 'the result of the commendable cooperation between the Customs Service and the Commission who were both concerned with law enforcement on the waterfront.' D.C., 189 F.Supp., at 255.12 On this record the upshot of the matter is that, insofar as this state official is concerned, nothing in Rea justifies disregard of the teachings of Stefanelli. Nor is the vitality of the principles on which the latter case rested sapped by this Court's decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, overruling Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, which had refused to extend to the States the exclusionary rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. For in denying the injunctive relief there sought Stefanelli expressly laid to one side any possible impact of Wolf. 342 U.S., at 119 120, 72 S.Ct. at 120.
16
The withholding of injunctive relief against this state official does not deprive respondent of the opportunity for federal correction of any denial of federal constitutional rights in the state proceedings. To the extent that such rights have been violated, cf., e.g., Mapp v. Ohio, supra, he may raise the objection in the state courts and then seek review in this Court of an adverse determination by the New York Court of Appeals. To permit such claims to be litigated collaterally, as is sought here, would in effect frustrate the deep-seated federal policy against piecemeal review.
17
To the extent that respondent's claims involve infractions merely of the Federal Criminal Rules, we need not decide whether an adverse state determination upon such claims would be reversible here. Cf., e.g., Gallegos v. Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86. For in any event we do not think that an injunction against this state official is justified in the circumstances of this case. Assuming that such relief was properly granted here as to the federal officials in the exercise of federal-court supervisory power over them, we consider that a supplementing injunction should not issue against a state official, at least where, as here, there is no evidence of a purpose to avoid federal requirements and the information has not been acquired by the state official in violation of a federal court order. Such direct intrusion in state processes does not comport with proper federal-state relationships.
18
We conclude that the injunction as to this petitioner should not have been granted, and that the judgment of the Court of Appeals must accordingly be reversed.
19
Reversed.
20
Mr. Justice GOLDBERG, concurring in the result.
21
I concur in the result. I cannot, however, join the Court's opinion, because I do not find it necessary in the present circumstances to pass upon the question whether Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233, may ever support an injunction against a state official who has received evidence illegally obtained by federal officers even though 'there is no evidence of a purpose to avoid federal requirements and the information has not been acquired by the state official in violation of a federal court order.' For me consideration of that question is obviated by the commendably broad reading which the New York Court of Appeals has given this Court's decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.1 Because I strongly adhere to the principle, stated with clarity in Stefanelli v. Minard, 342 U.S. 117, 120, 72 S.Ct. 118, 120, 96 L.Ed. 138, that the considerations governing whether a federal equity court should exercise its power here 'touch perhaps the most sensitive source of friction between States and Nation, namely, the active intrusion of the federal courts in the administration of the criminal law for the prosecution of crimes solely within the power of the States,' I would avoid granting of injunctive relief in cases such as this where, because there is a substantial likelihood that the state courts will exclude the evidence at issue, such relief is not essential to vindication of an overriding federal policy governing conduct of federal officers. The virtual certainty of exclusion in the New York criminal proceedings and the likelihood of exclusion in the state administrative proceedings satisfy me that denial of the injunction here will not encourage federal officers to engage in illegal conduct. Thus, deterrence of such illegality, the consideration which in substantial part underlay the decision in Rea, is not a determining factor here and there is no need to grant injunctive relief to effectuate that policy.
22
In stating my position I rely on the New York Court of Appeals' announced view that it regards Mapp as extending to the 'fruit of the poisonous tree,' a holding arrived at on facts similar to those involved here. People v. Rodriguez, 11 N.Y.2d 279, 286, 229 N.Y.S.2d 353, 357, 183 N.E.2d 651, 653— 654 (1962). It therefore appears that New York will exclude all the evidence here in question in the pending criminal proceedings. With reference to the Waterfront Commission hearing, I am well aware that the New York Court of Appeals has as yet taken no position on the applicability of Mapp in civil and administrative proceedings,2 and that, indeed, the effect of the Fourth Amendment in civil cases in the federal courts is not totally settled.3 However, in view of the encouragingly constructive approach of the New York courts to application of the Mapp decision, and of the 'quasi-criminal' character of the pending Waterfront Commission proceedings, I nevertheless take the view, based upon Stefanelli, that the orderly way to proceed in this case is for New York to pass upon respondent's claims first.
23
The Court's opinion states that 'To the extent that respondent's claims involve infractions merely of the Federal Criminal Rules, we need not decide whether an adverse state determination upon such claims would be reversible here.' I, like the Court, do not reach this issue, but I so conclude because of my stated belief that New York will, under Mapp, likely exclude all the evidence in question here, a possibility which for me, because of my firm belief in the principles of Stefanelli v. Minard, supra, is sufficient to make the granting of injunctive relief here an unwise exercise of federal power. Whether it would be similarly excludible in such state proceedings were respondent's claims premised solely upon federal officers' misbehavior in contravention of the Federal Rules of Criminal Procedure is a question which this Court has not decided.4 There is a strong interest, which many decisions of this Court reflect, e.g., McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479, in ensuring compliance by federal officers with rules having the force of federal law, designed to safeguard the rights of citizens charged with criminal acts. Whether the Supremacy Clause of the Constitution compels state courts to enforce that interest by excluding evidence obtained by federal officers in violation of the Federal Criminal Rules, including reverse 'silver platter' situations wherein illegally procured evidence has been handed over to state officers, will warrant serious consideration in an appropriate case. We need not and therefore do not decide that question here.
24
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE concurs, dissenting.
25
I would agree with the judgment of the Court if we had here nothing but a question concerning the use of evidence obtained in violation of the Fourth Amendment. That question can now be raised in the state prosecution as a result of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. My difficulties stem from a flagrant violation by federal officers of Rule 5(a) of the Federal Rules of Criminal Procedure and the threatened use of the fruits of that violation by a state official in state cases. If the Court, as is strongly suggested, makes unreviewable here any adverse state determination on that claim, the only opportunity to correct the abuse of federal authority is here and now.
26
Federal customs agents suspected that thefts of liquor were occurring on the New York waterfront. Two agents stopped respondent Bolger on suspicion of theft at about 8 a.m. on Saturday, September 12, 1959. Their search of Bolger's car produced only a couple of windshield wipers and six spark plugs stamped 'made in England,' items that easily could have been purchased in New York. But, in response to the agents' questioning, Bolger admitted that he had at his home several bottles of liquor purchased from seamen. On the basis of this information the agents arrested Bolger at 9 a.m. Instead of taking him before a Commissioner as required by Rule 5(a), Federal Rules of Criminal Procedure, they took him to headquarters for further questioning. There, after refusing his request to consult a lawyer and by employing trickery, the agents got Bolger to consent to a search of his home. The ensuing search, conducted at about 11 a.m., produced several items tending to incriminate Bolger. Upon returning to headquarters, further questioning produced damaging statements from him. Petitioner Cleary, an investigator for the Waterfront Commission of New York Harbor, was present at this later questioning at the invitation of the federal agents. Though he did not participate in this questioning, he was free to do so.
27
No federal prosecution was ever brought against Bolger. New York, however, instituted both a criminal prosecution and an administrative proceeding to revoke his license as a hiring agent. Bolger brought suit in the Federal District Court to enjoin the federal agents and Cleary from producing any of the material seized from him or testifying as to any of his statements in either of the state proceedings.
28
The District Court granted the relief requested with respect to all statements obtained after 11 a.m., at which time a Federal Commissioner was in his office a few blocks from headquarters, and also all evidence obtained at Bolger's home. It held that the statements obtained both prior to and after the search were in violation of Rule 5(a), and that the search and seizure violated both the Fourth Amendment and Rule 41(a). 189 F.Supp. 237. The District Court relied on Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233, insofar as the federal agents were concerned; and it added that if the remedy did not extend to Cleary, whom it characterized as a 'human recorder,' federal agents would be free to flout the strictures imposed on them by Rea and the Federal Rules. The District Court concluded, 'Cleary will be restrained not in his capacity as a state official but because he participated as a witness in the unlawful acts of the federal officers acting on behalf of the United States.' D.C., 189 F.Supp., at 256.
29
Only Cleary appealed; and the Court of Appeals affirmed on the authority of Rea v. United States, supra. 2 Cir., 293 F.2d 368. It said that the only difference between this case and Rea 'is the time at which the federal officials attempt to make the results of their lawbreaking available to the state.' Id., at 369.
30
I think the Court of Appeals was correct in saying that 'the Rea case (is) ample authority for holding that the order appealed from is not barred by 28 U.S.C. § 2283 (28 U.S.C.A. § 2283) as an injunction to stay proceedings in a state court.' Id., at 370. The proceedings themselves are not enjoined. Enjoining a state agent from offering as a witness unlawfully obtained evidence has no different effect on the 'proceedings in a state court' than enjoining a federal officer. To be sure, in Rea there had been an earlier suppression order in a federal prosecution; and so it is now said that the injunction against testifying was necessary to protect or effectuate that suppression order. That answer proves too much, for it would enable federal agents themselves to violate the Federal Rules and, without fear of a federal injunction, produce all their illegally obtained evidence in a state prosecution.
31
A state agent should be enjoined from producing, as a witness in a state court proceeding, evidence he acquired solely as a result of federal agents' violation of the Federal Rules.
32
Such an injunction should issue lest federal agents accomplish illegal results by boosting Oliver Twists through windows built too narrow by those Rules for their own ingress.* It is no answer to say that the state agent was merely a nonparticipating observer, or that Oliver Twist was an innocent child. The result produced, viz., the Oliver Twist method of obtaining evidence in violation of the Federal Rules, is illegal and should not go unchecked.
33
'Free and open cooperation between state and federal law enforcement officers is to be commended and encouraged. Yet that kind of cooperation is hardly promoted by a rule that implicitly invites federal officers * * * (to violate the provisions of the Federal Rules). If, on the other hand, it is understood that the fruit of * * * unlawful * * * (conduct) by * * * (federal) agents will be inadmissible in a * * * (state) trial, there can be no inducement to subterfuge and evasion with respect to federal-state cooperation in criminal investigation'—to paraphrase an earlier opinion in a related area. See Elkins v. United States, 364 U.S. 206, 221—222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669. Unless a federal court can enjoin a state agent under the facts of this case, the provisions of the Federal Rules will be subverted and an unhealthy form of statefederal cooperation will be encouraged.
34
What is involved is not an attempt by a federal court to interject itself into a state criminal prosecution to protect a defendant's federal rights against state infringement, as was the case in Pugach v. Dollinger, 365 U.S. 458, 81 S.Ct. 650, 5 L.Ed.2d 678, and Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138. In both of those cases the unlawfully obtained evidence had been obtained by state police. Here the evidence was obtained by federal agents in violation of the Federal Rules. It therefore involves no entrenchment on principles of federalism to hold that a Federal District Court may enjoin the production of such evidence in a state proceeding, regardless of who seeks to introduce it. The federal courts, rather than the state courts, have the responsibility of assuring that federal law-enforcement officers adhere to the procedures prescribed by the Federal Rules. This responsibility cannot be met if the federal courts' power can be thwarted by federal employment of a state Oliver Twist.
35
Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE concurs, dissenting.
36
I join in the dissenting opinion of my Brother DOUGLAS and add a few words in support of his conclusion.
I.
37
The Court concedes arguendo that it was proper to enjoin the federal officers from testifying in state proceedings against respondent as to the fruits of their violations of Rules 5 and 41 of the Federal Rules of Criminal Procedure. But having made this concession—compelled, I should think, by Rea v. United States, 350 U.S. 214, 76 S.Ct. 2921—the Court then excludes petitioner from the injunction: 'injunctive relief against this petitioner (cannot) find justification in the rationale that it was required in order to make the injunction against the federal officers effective. Such relief as to him must stand on its own bottom.' The Court finds no 'bottom,' because petitioner did not himself violate the Federal Rules or otherwise misconduct himself. This reasoning, I submit, cannot withstand scrutiny.
38
In so refusing incidental relief against petitioner, surely the Court flouts settled principles of equity. Equity does not do justice by halves; its remedies are flexible. 'A writ of injunction may be said to be a process capable of more modifications than any other in the law; it is so malleable that it may be moulded to suit the various circumstances and occasions presented to a court of equity. It is an instrument in his hands capable of various applications for the purposes of dispensing complete justice between the parties.' Tucker v. Carpenter, 24 Fed.Cas.No.14217 (Cir.Ct.D.Ark. 1841); see 1 Joyce, Injunctions (1909), § 2; 1 Pomeroy, Equity Jurisprudence (5th ed. Symons, 1941), § 114.2 'Complete justice' has not been done if the fruits of the violations of federal law by federal officers may nevertheless be used against respondent in state proceedings by a state officer who witnessed, indeed abetted, those violations.
39
The vacation of the injunction against the state officer on the ground that he himself was not a wrongdoer wholly misconceives the nature of equitable relief. Such relief is not punitive but remedial, and it is measured not by the defendant's transgressions but by the plaintiff's needs. Thus, to protect a trade secret, equity will enjoin third persons to whom the secret has been divulged if they have notice of the breach of trust. See, e.g., Colgate-Palmolive Co. v. Carter Products, Inc., 230 F.2d 855, 864 865 (C.A.4th Cir.1956). Such third persons are not themselves malefactors, any more than this state officer is; they are enjoined in order to give the victim of the wrong effective protection. The respondent herein is entitled to effective protection against the federal officers' violations of federal law, which comprehends ancillary relief against petitioner qua witness to the unlawful conduct. Though innocent of the federal officers' misconduct, the state officer may not avail himself of its fruits to the harm of respondent. I repeat: the Court errs in asserting that the injunction against the state officer must stand on its own bottom; such a supplemental decree is fully justified, in accordance with the conventional principles of equity, by the issuance of an injunction against the federal officers.
40
The incidental nature of the relief granted against the state officer should dispel any fear that such relief threatens impairment of the harmonious workings of federalism. To be sure, it was part of the state officer's official duties to cooperate fully with federal officers. But it was no part of his duty to abet and facilitate federal officers' unlawful conduct. To enjoin him as a witness to such conduct does no more than forbid him to profit from it. In overruling the 'silver platter' doctrine a few Terms ago, we anchored our holding in the disruptive effect upon the federal system of allowing the introduction into federal courts of evidence unlawfully seized by state officers. Elkins v. United States, 364 U.S. 206, 221, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669. Surely the converse situation is no less productive of needless conflict. In truth, to enjoin the introduction into state courts of evidence unlawfully seized by federal officers is to promote, not retard, a healthy federalism.
41
In invoking the bogey of federal disruption of state criminal processes the Court relies heavily on Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138, where it was held to be improper to enjoin the introduction in a state criminal trial of evidence seized by state officers in violation of the Fourteenth Amendment. But Stefanelli is manifestly inapt. That decision was compelled by Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, where the Court, while confirming that the Fourth Amendment had been absorbed into the Due Process Clause of the Fourteenth Amendment, nevertheless left the States free to devise appropriate remedies for violations of this constitutional protection. To have authorized the Federal District Courts to order the exclusion in state criminal trials of evidence unlawfully obtained by state officials would have sanctioned accomplishing indirectly what Wolf forbade directly. But Wolf has been overruled in this particular. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and the accommodation of Wolf which required the decision in Stefanelli is no longer a concern.
42
Moreover, the instant petitioner is not sought to be enjoined as a state officer whose misconduct ought to be remedied by the State, as was the case in Stefanelli, but as a witness to the misconduct of federal officers. The Federal Rules are not directed at state officers, nor was this state officer found to have engaged in conduct violative of them. Responsibility for enforcing the Federal Rules lies precisely with the federal courts, whereas under the regime of Wolf responsibility for enforcing the Fourteenth Amendment's right of privacy lay exclusively with the state court. Indeed, it is in light of the difference between violations of the Federal Rules and violations of the Fourteenth Amendment that the Stefanelli and Rea decisions emerge as perfectly consistent; and it is significant that the author of the Court's opinion in Stefanelli joined the Court's opinion in Rea.
43
It is also worth observing that Congress has taken pains to specify the conditions under which a federal court shall withhold injunctive relief in respect of a pending state court proceeding. See 28 U.S.C. § 2283, 28 U.S.C.A. § 2283. The Court nowhere mentions this provision, surely because its total inapplicability to the case at hand is plain: an injunction against this state officer would not stay the state proceedings against respondent but only preclude the use of certain evidence in them. Since Congress in § 2283 set out specific conditions for withholding federal equity relief, and these conditions have not been met in the case at bar, I submit that we are obligated to allow such relief to be granted in conformity with the accepted usages of equity procedure.
II.
44
With all respect I cannot share the view of my Brother GOLDBERG that relief should be denied here because the probable exclusion of the challenged evidence, in whole or part, by the New York courts would sufficiently serve to deter lawless conduct by federal officers. My view is that equitable actions grounded in violations of the Federal Rules of Criminal Procedure should be governed by the accepted principles of equity. Among them is the principle that an adequate remedy at law bars equitable relief. This principle seems to me to be applicable even where the remedy is given by the state courts, so long as the source of the remedy is federal law. See Henrietta Mills v. Rutherford County, 281 U.S. 121, 126—127, 50 S.Ct. 270, 272, 74 L.Ed. 737. I further believe that one who has an adequate remedy by way of appeal, as well as one who has a more conventional adequate remedy at law, is thereby disbarred from equitable relief. 1 Joyce, supra, § 29. But for a remedy to be adequate, it must have more than a merely theoretical availability. If 'a court of law can do as complete justice to the matter in controversy * * * as could be done by a court of equity, equity will not interfere. * * * But in order that the general principle may apply, the sufficiency and completeness of the legal remedy must be certain; if it is doubtful, equity may take cognizance.' 1 Pomeroy, supra, § 176. How certain, complete, and sufficient is the remedy by way of appeal in the instant case? My Brother GOLDBERG concedes uncertainty as to whether the New York courts, though they have generally interpreted Mapp v. Ohio, supra, will exclude all the challenged evidence involved in this case, or whether Mapp or any other decision of this Court compels such exclusion. Nor is it certain that a State is obliged to exclude evidence which is the product of violations of the Federal Rules—no decision of this Court has yet so held and Rea was premised on a contrary assumption, see 350 U.S., at 217; Wilson v. Schnettler, supra, at 391, 81 S.Ct. at 638 (dissenting opinion) and finally, while petitioner herein was enjoined from testifying the state administrative proceeding against respondent, as well as in the criminal proceeding, it has not yet been settled whether Mapp applies to administrative proceedings. Thus, to remit respondent to his remedy by appeal in the state courts is to set him adrift on a sea of legal uncertainties, and very possibly to deprive him, in the end, of any remedy whatever. Since respondent's remedy by law is uncertain, conventional equity principles require that the injunction issue against this state officer, premised not on constitutional grounds but on violations of the Federal Rules by federal officers.3
1
See De Veau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109.
2
The other Waterfront Commission detective, Machry, had apparently left the scene at an earlier stage. He was not joined as a defendant in the present action.
3
Respondent also instituted a second federal action against the Waterfront Commission and its members, seeking to enjoin the use of the same evidence in the license-revocation proceeding. That suit was dismissed by the District Court and is not involved here.
4
The District Court held that respondent's arrest and the search of his automobile by the federal agents were not illegal, and also denied return of any of the property seized at respondent's home on the premise that it was contraband. Neither of those determinations is before us.
5
Rule 41(a): 'Authority to Issue Warrant. A search warrant authorized by this rule may be issued by a judge of the United States or of a state, commonwealth or territorial court of record or by a United States commissioner within the district wherein the property sought is located.'
6
Rule 5(a): 'Appearance before the Commissioner. An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States. When a person arrested without a warrant is brought before a commissioner or other officer, a complaint shall be filed forthwith.' See McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819.
7
It should be noted that respondent did not allege in his complaint that the matter in controversy exceeded the sum or value of $10,000, or that diversity of citizenship existed. See 28 U.S.C. §§ 1331, 1332, 28 U.S.C.A. §§ 1331, 1332. Nor did he allege that the District Court had jurisdiction to enjoin petitioner incidental to its supervisory power over federal law enforcement agencies, cf. Rea v. United States, 350 U.S. 214, 217, 76 S.Ct. 292, 294, 100 L.Ed. 233, or that 28 U.S.C. § 1343, 28 U.S.C.A. § 1343, conferred jurisdiction. But, in view of our determination that equitable power should not have been exercised with respect to this petitioner, it is not necessary to resolve the questions whether the complaint stated a cause of action as to him or whether federal jurisdiction existed or was adequately invoked. See Stefanelli v. Minard, 342 U.S. 117, 120, 72 S.Ct. 118, 120, 96 L.Ed. 138.
8
Rule 41(e) provides that the material suppressed 'shall not be admissible in evidence at any hearing or trial.'
9
The Court of Appeals was also disposed to think that the propriety of the District Court's injunction was not affected by this Court's decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, which came down after this case had left the District Court.
10
None of the federal officers involved in this action has sought review in this Court. And for reasons stated in this opinion there is otherwise no need for determining the propriety of the injunction as to them in order to dispose of the case before us.
11
'In the case at bar the wrongful activities were all those of federal officers and were conducted or directed by them. All that was done during the period of unlawful detention, and particularly the taking of the incriminating statement from Bolger, was being done on behalf of the United States. Cleary was merely a witness to them.' D.C., 189 F.Supp., at 256.
12
We attach no significance to the District Court's remark that petitioner's 'presence might have been an additional inducement to Bolger to answer questions more freely' (D.C., 189 F.Supp., at 255) because Bolger, when originally picked up by the federal officers, had exhibited concern about the possible effect of his transgressions on his longshoreman's license. The record is barren of any evidence indicating that petitioner was brought into the situation for the purpose of intimidating Bolger or that he in fact did so.
1
See, e.g., People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478 (1961); People v. O'Neill, 11 N.Y.2d 148, 227 N.Y.S.2d 416, 182 N.E.2d 95 (1962); People v. Rodriguez, 11 N.Y.2d 279, 229, N.Y.S.2d 353, 183 N.E.2d 651 (1962).
2
Compare Bloodgood v. Lynch, 293 N.Y. 308, 56 N.E.2d 718 (1944), with Sackler v. Sackler, 16 A.D.2d 423, 229 N.Y.S.2d 61 (2d Dept. 1962).
3
Compare Rogers v. United States, 97 F.2d 691 (C.A.1st Cir. 1938), United States v. Butler, 156 F.2d 897 (C.A.10th Cir. 1946), and United States v. Physic, 175 F.2d 338 (C.A.2d Cir. 1949), with United States v. One 1956 Ford Tudor Sedan, 253 F.2d 725 (C.A.4th Cir. 1958).
4
Nothing in Gallegos v. Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86, which did not involve activities of federal officers in violation of the Federal Criminal Rules, decides that question.
*
'It was a little lattice window, about five feet and a half above the ground: at the back of the house: which belonged to a scullery, or small brewing-place, at the end of the passage. The aperture was so small, that the inmates had probably not thought it worth while to defend it more securely; but it was large enough to admit a boy of Oliver's size, nevertheless. A very brief exercise of Mr. Sikes's art, sufficed to overcome the fastening of the lattice; and it soon stood wide open also.' Dickens, The Adventures of Oliver Twist (N.Y.: Thomas Y. Crowell & Co.), p. 184.
1
In Wilson v. Schnettler, 365 U.S. 381, 81 S.Ct. 632, 5 L.Ed.2d 620, I joined the dissenting opinion of my Brother DOUGLAS because I thought (and still do) that the Court was making dangerous inroads upon the Rea decision. Happily, the Court in the instant case makes no suggestion that the authority of Rea has been impaired by Wilson. At all events Wilson is distinguishable from the case at bar, for here there was no failure to allege a violation of federal law and a lack of an adequate remedy at law.
2
'The governing motive of equity in the administration of its remedial system is to grant full relief, and to adjust in the one suit the rights and duties of all the parties, which really grow out of or are connected with the subject-matter of that suit. * * * Its fundamental principle concerning parties is, that all persons in whose favor or against whom there might be a recovery, however partial, and also all persons who are so interested, although indirectly, in the subject-matter and the relief granted, that their rights or duties might be affected by the decree, although no substantial recovery can be obtained either for or against them, shall by made parties to the suit. * * * The primary object is, that all persons sufficiently interested may be before the court, so that the relief may be properly adjusted among those entitled, the liabilities properly apportioned, and the incidental or consequential claims or interests of all may be fixed, and all may be bound in respect thereto by the single decree.' 1 Pomeroy, supra.
3
The Court's intimation, in note 7 of the opinion of doubt as to the existence of federal jurisdiction in the instant case seems to me totally unwarranted. The Court was unanimous in Rea as to the existence of federal jurisdiction; the only dispute was as to the propriety of exercising it. See 350 U.S., at 219, 81 S.Ct. at 295 (dissenting opinion). To predidicate federal jurisdiction in the instant case, we need not decide whether the Federal Rules are civil rights statutes within the intent of 28 U.S.C. § 1343(4), 28 U.S.C.A. § 1343(4), nor need we resort to any other jurisdictional statute. For the federal courts have the inherent authority to issue orders to protect their processes, here, as in Rea, governed by the Federal Rules of Criminal Procedure. See 350 U.S., at 217, 81 S.Ct. at 294; Wise v. Henkel, 220 U.S. 556, 558, 31 S.Ct. 599, 600, 55 L.Ed. 581.
| 89
|
371 U.S. 415
83 S.Ct. 328
9 L.Ed.2d 405
NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, etc., Petitioner,v.Robert Y. BUTTON, Attorney General of Virginia, et al.
No. 5.
Reargued Oct. 9, 1962.
Decided Jan. 14, 1963.
[Syllabus from pages 415-417 intentionally omitted]
Robert L. Carter, New York City, for petitioner.
Henry T. Wickham, Richmond, Va., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case originated in companion suits by the National Association for the Advancement of Colored People, Inc. (NAACP), and the NAACP Legal Defense and Education Fund, Inc. (Defense Fund), brought in 1957 in the United States District Court for the Eastern District of Virginia. The suits sought to restrain the enforcement of Chapters 31, 32, 33, 35 and 36 of the Virginia Acts of Assembly, 1956 Extra Session, on the ground that the statutes, as applied to the activities of the plaintiffs, violated the Fourteenth Amendment. A three-judge court convened pursuant to 28 U.S.C. § 2281, 28 U.S.C.A. § 2281, after hearing evidence and making fact-findings, struck down Chapters 31, 32 and 35 but abstained from passing upon the validity of Chapters 33 and 36 pending an authoritative interpretation of these statutes by the Virginia courts.1 The complainants thereupon petitioned in the Circuit Court of the City of Richmond to declare Chapters 33 and 36 inapplicable to their activities, or, if applicable, unconstitutional. The record in the Circuit Court was that made before the three-judge court supplemented by additional evidence. The Circuit Court held the chapters to be both applicable and constitutional. The holding was sustained by the Virginia Supreme Court of Appeals as to Chapter 33, but reversed as to Chapter 36, which was held unconstitutional under both state and federal law.2 Thereupon the Defense Fund returned to the Federal District Court, where its case is presently pending, while the NAACP filed the instant petition. We granted certiorari. 365 U.S. 842, 81 S.Ct. 803, 5 L.Ed.2d 807.3 We heard argument in the 1961 Term and ordered reargument this Term. 369 U.S. 833, 82 S.Ct. 863, 7 L.Ed.2d 841. Since no cross-petition was filed to review the Supreme Court of Appeals' disposition of Chapter 36, the only issue before us is the constitutionality of Chapter 33 as applied to the activities of the NAACP.
2
There is no substantial dispute as to the facts; the dispute centers about the constitutionality under the Fourteenth Amendment of Chapter 33, as construed and applied by the Virginia Supreme Court of Appeals to include NAACP's activities within the statute's ban against 'the improper solicitation of any legal or professional business.'
3
The NAACP was formed in 1909 and incorporated under New York law as a nonprofit membership corporation in 1911. It maintains its headquarters in New York and presently has some 1,000 active unincorporated branches throughout the Nation. The corporation is licensed to do business in Virginia, and has 89 branches there. The Virginia branches are organized into the Virginia State Conference of NAACP Branches (the Conference), an unincorporated association, which in 1957 had some 13,500 members. The activities of the Conference are financed jointly by the national organization and the local branches from contributions and membership dues. NAACP policy, binding upon local branches and conferences, is set by the annual national convention.
4
The basic aims and purposes of NAACP are to secure the elimination of all racial barriers which deprive Negro citizens of the privileges and burdens of equal citizenship rights in the United States. To this end the Association engages in extensive educational and lobbying activities. It also devotes much of its funds and energies to an extensive program of assisting certain kinds of litigation on behalf of its declared purposes. For more than 10 years, the Virginia Conference has concentrated upon financing litigation aimed at ending racial segregation in the public schools of the Commonwealth.
5
The Conference ordinarily will finance only cases in which the assisted litigant retains an NAACP staff lawyer to represent him.4 The Conference maintains a legal staff of 15 attorneys, all of whom are Negroes and members of the NAACP. The staff is elected at the Conference's annual convention. Each legal staff member must agree to abide by the policies of the NAACP, which, insofar as they pertain to professional services, limit the kinds of litigation which the NAACP will assist. Thus the NAACP will not underwrite ordinary damages actions, criminal actions in which the defendant raises no question of possible racial discrimination, or suits in which the plaintiff seeks separate but equal rather than fully desegregated public school facilities. The staff decides whether a litigant, who may or may not be an NAACP member, is entitled to NAACP assistance. The Conference defrays all expenses of litigation in an assisted case, and usually, although not always, pays each lawyer on the case a per diem fee not to exceed $60, plus out-of-pocket expenses. The assisted litigant receives no money from the Conference or the staff lawyers. The staff member may not accept, from the litigant or any other source, any other compensation for his services in an NAACP-assisted case. None of the staff receives a salary or retainer from the NAACP; the per diem fee is paid only for professional services in a particular case. This per diem payment is smaller than the compensation ordinarily received for equivalent private professional work. The actual conduct of assisted litigation is under the control of the attorney, although the NAACP continues to be concerned that the outcome of the lawsuit should be consistent with NAACP's policies already described. A client is free at any time to withdraw from an action.
6
The members of the legal staff of the Virginia Conference and other NAACP or Defense Fund lawyers called in by the staff to assist are drawn into litigation in various ways. One is for an aggrieved Negro to apply directly to the Conference or the legal staff for assistance. His application is referred to the Chairman of the legal staff. The Chairman, with the concurrence of the President of the Conference, is authorized to agree to give legal assistance in an appropriate case. In litigation involving public school segregation, the procedure tends to be different. Typically, a local NAACP branch will invite a member of the legal staff to explain to a meeting of parents and children the legal steps necessary to achieve desegregation. The staff member will bring printed forms to the meeting authorizing him, and other NAACP or Defense Fund attorneys of his designation, to represent the signers in legal proceedings to achieve desegregation. On occasion, blank forms have been signed by litigants, upon the understanding that a member or members of the legal staff, with or without assistance from other NAACP lawyers, or from the Defense Fund, would handle the case. It is usual, after obtaining authorizations, for the staff lawyer to bring into the case the other staff members in the area where suit is to be brought, and sometimes to bring in lawyers from the national organization or the Defense Fund.5 In effect, then, the prospective litigant retains not so much a particular attorney as the 'firm' of NAACP and Defense Fund lawyers, which has a corporate reputation for expertness in presenting and arguing the difficult questions of law that frequently arise in civil rights litigation.
7
These meetings are sometimes prompted by letters and bulletins from the Conference urging active steps to fight segregation. The Conference has on occasion distributed to the local branches petitions for desegregation to be signed by parents and filed with local school boards, and advised branch officials to obtain, as petitioners, persons willing to 'go all the way' in any possible litigation that may ensue. While the Conference in these ways encourages the bringing of lawsuits, the plaintiffs in particular actions, so far as appears, make their own decisions to become such.6
8
Statutory regulation of unethical and nonprofessional conduct by attorneys has been in force in Virginia since 1849. These provisions outlaw, inter alia, solicitation of legal business in the form of 'running' or 'capping.' Prior to 1956, however, no attempt was made to proscribe under such regulations the activities of the NAACP, which had been carried on openly for many years in substantially the manner described. In 1956, however, the legislature amended, by the addition of Chapter 33, the provisions of the Virginia Code forbidding solicitation of legal business by a 'runner' or 'capper' to include, in the definition of 'runner' or 'capper,' an agent for an individual or organization which retains a lawyer in connection with an action to which it is not a party and in which it has no pecuniary right or liability.7 The Virginia Supreme Court of Appeals held that the chapter's purpose 'was to strengthen the existing statutes to further control the evils of solicitation of legal business * * *.' 202 Va., at 154, 116 S.E.2d, at 65. The court held that the activities of NAACP, the Virginia Conference, the Defense Fund, and the lawyers furnished by them, fell within, and could constitutionally be proscribed by, the chapter's expanded definition of improper solicitation of legal business, and also violated Canons 35 and 47 of the American Bar Association's Canons of Professional Ethics, which the court had adopted in 1938.8 Specifically the court held that, under the expanded definition, such activities on the part of NAACP, the Virginia Conference, and the Defense Fund constituted 'fomenting and soliciting legal business in which they are not parties and have no pecuniary right or liability, and which they channel to the enrichment of certain lawyers employed by them, at no cost to the litigants and over which the litigants have no control.' 202 Va., at 155, 116 S.E.2d, at 66. Finally, the court restated the decree of the Richmond Circuit Court. We have excerpted the pertinent portion of the court's holding in the margin.9
I.
9
A jurisdictional question must first be resolved: whether the judgment below was 'final' within the meaning of 28 U.S.C. § 1257, 28 U.S.C.A. § 1257. The three-judge Federal District Court retained jurisdiction of this case while an authoritative construction of Chapters 33 and 36 was being sought in the Virginia courts. Cf. Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168, 173, 62 S.Ct. 986, 988, 86 L.Ed. 1355. The question of our jurisdiction arises because, when the case was last here, we observed that such abstention to secure state court interpretation 'does not, of course, involve the abdication (by the District Court) of federal jurisdiction, but only the postponement of its exercise * * *.' Harrison v. NAACP, 360 U.S. 167, 177, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152. We meant simply that the District Court had properly retained jurisdiction, since a party has the right to return to the District Court, after obtaining the authoritative state court construction for which the court abstained, for a final determination of his claim. Where, however, the party remitted to the state courts elects to seek a complete and final adjudication of his rights in the state courts, the District Court's reservation of jurisdiction is purely formal, and does not impair our jurisdiction to review directly an otherwise final state court judgment. Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072. We think it clear that petitioner made such an election in the instant case, by seeking from the Richmond Circuit Court 'a binding adjudication' of all its claims and a permanent injunction as well as declaratory relief, by making no reservation to the disposition of the entire case by the state courts, and by coming here directly on certiorari. Therefore, the judgment of the Virginia Supreme Court of Appeals was final, and the case is properly before us.
II.
10
Petitioner challenges the decision of the Supreme Court of Appeals on many grounds. But we reach only one: that Chapter 33 as construed and applied abridges the freedoms of the First Amendment, protected against state action by the Fourteenth.10 More specifically, petitioner claims that the chapter infringes the right of the NAACP and its members and lawyers to associate for the purpose of assisting persons who seek legal redress for infringements of their constitutionally guaranteed and other rights. We think petitioner may assert this right on its own behalf, because, though a corporation, it is directly engaged in those activities, claimed to be constitutionally protected, which the statute would curtail. Cf. Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660. We also think petitioner has standing to assert the corresponding rights of its members. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 458—460, 78 S.Ct. 1163, 1169, 2 L.Ed.2d 1488; Bates v. City of Little Rock, 361 U.S. 516, 523, n. 9, 80 S.Ct. 412, 416, 4 L.Ed.2d 480; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296, 81 S.Ct. 1333, 1335, 6 L.Ed.2d 301.
11
We reverse the judgment of the Virginia Supreme Court of Appeals. We hold that the activities of the NAACP, its affiliates and legal staff shown on this record are modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession, as improper solicitation of legal businessviolative of Chapter 33 and the Canons of Professional Ethics.11
A.
12
We meet at the outset the contention that 'solicitation' is wholly outside the area of freedoms protected by the First Amendment. To this contention there are two answers. The first is that a State cannot foreclose the exercise of constitutional rights by mere labels. The second is that abstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion. Thomas v. Collins, 323 U.S. 516, 537, 65 S.Ct. 315, 325, 89 L.Ed. 430; Herndon v. Lowry, 301 U.S. 242, 259—264, 57 S.Ct. 732, 739—742, 81 L.Ed. 1066. Cf. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117; Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131. In the context of NAACP objectives, litigation is not a technique of resolving private differences; it is a means for achieving the lawful objectives of equality of treatment by all government, federal, state and local, for the members of the Negro community in this country. It is thus a form of political expression. Groups which find themselves unable to achieve their objectives through the ballot frequently turn to the courts.12 Just as it was true of the opponents of New Deal legislation during the 1930's,13 for example, no less is it true of the Negro minority today. And under the conditions of modern government, litigation may well be the sole practicable avenue open to a minority to petition for redress of grievances.
13
We need not, in order to find constitutional protection for the kind of cooperative, organizational activity disclosed by this record, whereby Negroes seek through lawful means to achieve legitimate political ends, subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly. For there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity. Thus we have affirmed the right 'to engage in association for the advancement of beliefs and ideas.' NAACP v. Alabama, ex rel. Patterson, supra, 357 U.S. at 460, 78 S.Ct. at 1170. We have deemed privileged, under certain circumstances, the efforts of a union official to organize workers. Thomas v. Collins, supra. We have said that the Sherman Act does not apply to certain concerted activities of railroads 'at least insofar as those activities comprised mere solicitation of governmental action with respect to the passage and enforcement of laws' because 'such a construction of the Sherman Act would raise important constitutional questions,' specifically, First Amendment questions. Eastern R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 138, 81 S.Ct. 523, 530, 5 L.Ed.2d 464. And we have refused to countenance compelled disclosure of a person's political associations in language closely applicable to the instant case:
14
'Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents. All political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups * * *.' Sweezy v. New Hampshire, 354 U.S. 234, 250—251, 77 S.Ct. 1203, 1212, 1 L.Ed.2d 1311 (plurality opinion). Cf. De Jonge v. Oregon, 299 U.S. 353, 364—366, 57 S.Ct. 255, 260, 81 L.Ed. 278.
15
The NAACP is not a conventional political party; but the litigation it assists, while serving to vindicate the legal rights of members of the American Negro community, at the same time and perhaps more importantly, makes possible the distinctive contribution of a minority group to the ideas and beliefs of our society. For such a group, association for litigation may be the most effective form of political association.
B.
16
Our concern is with the impact of enforcement of Chapter 33 upon First Amendment freedoms. We start, of course, from the decree of the Supreme Court of Appeals. Although the action before it was one basically for declaratory relief, that court not only expounded the purpose and reach of the chapter but held concretely that certain of petitioner's activities had, and certain others had not, violated the chapter. These activities had been explored in detail at the trial and were spread out plainly on the record. We have no doubt that the opinion of the Supreme Court of Appeals in the instant case was intended as a full and authoritative construction of Chapter 33 as applied in a detailed factual context. That construction binds us. For us, the words of Virginia's highest court are the words of the statute. Hebert v. Louisiana, 272 U.S. 312, 317, 47 S.Ct. 103, 104, 71 L.Ed. 270. We are not left to speculate at large upon the possible implications of bare statutory language.
17
But it does not follow that this Court now has only a clear-cut task to decide whether the activities of the petitioner deemed unlawful by the Supreme Court of Appeals are constitutionally privileged. If the line drawn by the decree between the permitted and prohibited activities of the NAACP, its members and lawyers is an ambiguous one, we will not presume that the statute curtails constitutionally protected activity as little as possible. For standards of permissible statutory vagueness are strict in the area of free expression. See Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205; Winters v. New York, 333 U.S. 507, 509—510, 517—518, 68 S.Ct. 665, 667, 671, 92 L.Ed. 840; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066; Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; United States v. C.I.O., 335 U.S. 106, 142, 68 S.Ct. 1349, 1367, 92 L.Ed. 1849 (Rutledge, J., concurring). Furthermore, the instant decree may be invalid if it prohibits privileged exercises of First Amendment rights whether or not the record discloses that the petitioner has engaged in privileged conduct. For in appraising a statute's inhibitory effect upon such rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts besides that at bar. Thornhill v. Alabama, 310 U.S. 88, 97—98, 60 S.Ct. 736, 741—742, 84 L.Ed. 1093; Winters v. New York, supra, 333 U.S. at 518—520, 68 S.Ct. at 671—672. Cf. Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302. It makes no difference that the instant case was not a criminal prosecution and not based on a refusal to comply with a licensing requirement. The objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.14 Cf. Marcus v. Search Warrant, 367 U.S. 717, 733, 81 S.Ct. 1708, 1717, 6 L.Ed.2d 1127. These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Cf. Smith v. California, supra, 361 U.S. at 151—154, 80 S.Ct. at 217—219; Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. Cantwell v. Connecticut, 310 U.S. 296, 311, 60 S.Ct. 900, 906, 84 L.Ed. 1213.
18
We read the decree of the Virginia Supreme Court of Appeals in the instant case as proscribing any arrangement by which prospective litigants are advised to seek the assistance of particular attorneys. No narrower reading is plausible. We cannot accept the reading suggested on behalf of the Attorney General of Virginia on the second oral argument that the Supreme Court of Appeals construed Chapter 33 as proscribing control only of the actual litigation by the NAACP after it is instituted. In the first place, upon a record devoid of any evidence of interference by the NAACP in the actual conduct of litigation, or neglect or harassment of clients, the court nevertheless held that petitioner, its members, agents and staff attorneys had practiced criminal solicitation. Thus, simple referral to or recommendation of a lawyer may be solicitation within the meaning of Chapter 33. In the second place, the decree does not seem to rest on the fact that the attorneys were organized as a staff and paid by petitioner. The decree expressly forbids solicitation on behalf of 'any particular attorneys' in addition to attorneys retained or compensated by the NAACP. In the third place, although Chapter 33 purports to prohibit only solicitation by attorneys or their 'agents,' it defines agent broadly as anyone who 'represents' another in his dealings with a third person. Since the statute appears to depart from the common-law concept of the agency relationship and since the Virginia court did not clarify the statutory definition, we cannot say that it will not be applied with the broad sweep which the statutory language imports.
19
We conclude that under Chapter 33, as authoritatively construed by the Supreme Court of Appeals, a person who advises another that his legal rights have been infringed and refers him to a particular attorney or group of attorneys (for example, to the Virginia Conference's legal staff) for assistance has committed a crime, as has the attorney who knowingly renders assistance under such circumstances. There thus inheres in the statute the gravest danger of smothering all discussion looking to the eventual institution of litigation on behalf of the rights of members of an unpopular minority. Lawyers on the legal staff or even mere NAACP members or sympathizers would understandably hesitate, at an NAACP meeting or on any other occasion, to do what the decree purports to allow, namely, acquaint 'persons with what they believe to be their legal rights and * * * (advise) them to assert their rights by commencing or further prosecuting a suit * * *.' For if the lawyers, members of sympathizers also appeared in or had any connection with any litigation supported with NAACP funds contributed under the provision of the decree by which the NAACP is not prohibited 'from contributing money to persons to assist them in commencing or further prosecuting such suits,' they plainly would risk (if lawyers disbarment proceedings and, lawyers and nonlawyers alike, criminal prosecution for the offense of 'solicitation,' to which the Virginia court gave so broad and uncertain a meaning. It makes no difference whether such prosecutions or proceedings would actually be commenced. It is enough that a vague and broad statute lends itself to selective enforcement against unpopular causes. We cannot close our eyes to the fact that the militant Negro civil rights movement has engendered the intense resentment and opposition of the politically dominant white community of Virginia;15 litigation assisted by the NAACP has been bitterly fought.16 In such circumstances, a statute broadly curtailing group activity leading to litigation may easily become a weapon of oppression, however evenhanded its terms appear. Its mere existence could well freeze out of existence all such activity on behalf of the civil rights of Negro citizens.
20
It is apparent, therefore, that Chapter 33 as construed limits First Amendment freedoms. As this Court said in Thomas v. Collins, 323 U.S. 516, 537, 65 S.Ct. 315, 326, 89 L.Ed. 430, "Free trade in ideas' means free trade in the opportunity to persuade to action, not merely to describe facts.' Thomas was convicted for delivering a speech in connection with an impending union election under National Labor Relations Board auspices, without having first registered as a 'labor organizer.' He urged workers to exercise their rights under the National Labor Relations Act and join the union he represented. This Court held that the registration requirement as applied to his activities was constitutionally invalid. In the instant case, members of the NAACP urged Negroes aggrieved by the allegedly unconstitutional segregation of public schools in Virginia to exercise their legal rights and to retain members of the Association's legal staff. Like Thomas, the Association and its members were advocating lawful means of vindicating legal rights.
21
We hold that Chapter 33 as construed violates the Fourteenth Amendment by unduly inhibiting protected freedoms of expression and association. In so holding, we reject two further contentions of respondents. The first is that the Virginia Supreme Court of Appeals has guaranteed free expression by expressly confirming petitioner's right to continue its advocacy of civil-rights litigation. But in light of the whole decree of the court, the guarantee is of purely speculative value. As construed by the Court, Chapter 33, at least potentially, prohibits every cooperative activity that would make advocacy of litigation meaningful. If there is an internal tension between proscription and protection in the statute, we cannot assume that, in its subsequent enforcement, ambiguities will be resolved in favor of adequate protection of First Amendment rights. Broad prophylactic rules in the area of free expression are suspect. See, e.g., Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301. Cf. Schneider v. Town of Irvington, 308 U.S. 147, 162, 60 S.Ct. 146, 151, 84 L.Ed. 155. Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.
C.
22
The second contention is that Virginia has a subordinating interest in the regulation of the legal profession, embodied in Chapter 33, which justifies limiting petitioner's First Amendment rights. Specifically, Virginia contends that the NAACP's activities in furtherance of litigation, being 'improper solicitation' under the state statute, fall within the traditional purview of state regulation of professional conduct. However, the State's attempt to equate the activities of the NAACP and its lawyers with common-law barratry, maintenance and champerty,17 and to outlaw them accordingly, cannot obscure the serious encroachment worked by Chapter 33 upon protected freedoms of expression. The decisions of this Court have consistently held that only a compelling state interest in the regulation of a subject within the State's constitutional power to regulate can justify limiting First Amendment freedoms. Thus it is no answer to the constitutional claims asserted by petitioner to say, as the Virginia Supreme Court of Appeals has said, that the purpose of these regulations was merely to insure high professional standards and not to curtail free expression. For a State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights. See Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796; Konigsberg v. State Bar, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810. Cf. In re Sawyer, 360 U.S. 622, 79 S.Ct. 1376, 3 L.Ed.2d 1473. In NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488, we said, 'In the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recognize that abridgment of such rights, even though unintended, may inevitably follow from varied forms of governmental action.' Later, in Bates v. Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480, we said, '(w)here there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.' Most recently, in Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 297, 81 S.Ct. 1333, 1336, 6 L.Ed.2d 301, we reaffirmed this principle: '* * * regulatory measures * * * no matter how sophisticated, cannot be employed in purpose or in effect to stifle, penalize, or curb the exercise of First Amendment rights.'
23
However valid may be Virginia's interest in regulating the traditionally illegal practices of barratry, maintenance and champerty, that interest does not justify the prohibition of the NAACP activities disclosed by this record. Malicious intent was of the essence of the common-law offenses of fomenting or stirring up litigation.18 And whatever may be or may have been true of suits against government in other countries, the exercise in our own, as in this case, of First Amendment rights to enforce constitutional rights through litigation, as a matter of law, cannot be deemed malicious. Even more modern, subtler regulations of unprofessional conduct or interference with professional relations, not involving malice, would not touch the activities at bar; regulations which reflect hostility to stirring up litigation have been aimed chiefly at those who urge recourse to the courts for private gain, serving no public interest.19 Hostility still exists to stirring up private litigation where it promotes the use of legal machinery to oppress: as, for example, to sow discord in a family;20 to expose infirmities in land titles, as by hunting up claims of adverse possession;21 to harass large companies through a multiplicity of small claims;22 or to oppress debtors as by seeking out unsatisfied judgments.23 For a member of the bar to participate, directly or through intermediaries, in such misuses of the legal process is conduct traditionally condemned as injurious to the public. And beyond this, for a lawyer to attempt to reap gain by urging another to engage in private litigation has also been condemned: that seems to be the import of Canon 28, which the Virginia Supreme Court of Appeals has adopted as one of its Rules.24
24
Objection to the intervention of a lay intermediary, who may control litigation or otherwise interfere with the rendering of legal services in a confidential relationship, also derives from the element of pecuniary gain. Fearful of dangers thought to arise from that element, the courts of several States have sustained regulations aimed at these activities.25 We intimate no view one way or the other as to the merits of those decisions with respect to the particular arrangements against which they are directed. It is enough that the superficial resemblance in form between those arrangements and that at bar cannot obscure the vital fact that here the entire arrangement employs constitutionally privileged means of expression to secure constitutionally guaranteed civil rights.26 There has been no showing of a serious danger here of professionally reprehensible conflicts of interest which rules against solicitation frequently seek to prevent. This is so partly because no monetary stakes are involved, and so there is no danger that the attorney will desert or subvert the paramount interests of his client to enrich himself or an outside sponsor. And the aims and interests of NAACP have not been shown to conflict with those of its members and nonmember Negro litigants; compare NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488, where we said:
25
'(the NAACP) and its members are in every practical sense identical. The Association, which provides in its constitution that '(a)ny person who is in accordance with (its) principles and policies * * *' may become a member, is but the medium through which its individual members seek to make more effective the expression of their own views.' See also Harrison v. NAACP, 360 U.S. 167, 177, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152.
26
Resort to the courts to seek vindication of constitutional rights is a different matter from the oppressive, malicious, or avaricious use of the legal process for purely private gain. Lawsuits attacking racial discrimination, at least in Virginia, are neither very profitable nor very popular. They are not an object of general competition among Virginia lawyers;27 the problem is rather one of an apparent dearth of lawyers who are willing to undertake such litigation. There has been neither claim nor proof that any assisted Negro litigants have desired, but have been prevented from retaining, the services of other counsel. We realize that an NAACP lawyer must derive personal satisfaction from participation in litigation on behalf of Negro rights, else he would hardly be inclined to participate at the risk of financial sacrifice. But this would not seem to be the kind of interest or motive which induces criminal conduct.
27
We conclude that although the petitioner has amply shown that its activities fall within the First Amendment's protections, the State has failed to advance any substantial regulatory interest, in the form of substantive evils flowing from petitioner's activities, which can justify the broad prohibitions which it has imposed. Nothing that this record shows as to the nature and purpose of NAACP activities permits an inference of any injurious intervention in or control of litigation which would constitutionally authorize the application of Chapter 33 to those activities. A fortiori, nothing in this record justifies the breadth and vagueness of the Virginia Supreme Court of Appeals' decree.
28
A final observation is in order. Because our disposition is rested on the First Amendment as absorbed in the Fourteenth, we do not reach the considerations of race or racial discrimination which are the predicate of petitioner's challenge to the statute under the Equal Protection Clause. That the petitioner happens to be engaged in activities of expression and association on behalf of the rights of Negro children to equal opportunity is constitutionally irrelevant to the ground of our decision. The course of our decisions in the First Amendment area makes plain that its protections would apply as fully to those who would arouse our society against the objectives of the petitioner. See, e.g., Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131; Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280. For the Constitution protects expression and association without regard to the race, creed, or political or religious affiliation of the members of the group which invokes its shield, or to the truth, popularity, or social utility of the ideas and beliefs which are offered.
29
Reversed.
30
Mr. Justice DOUGLAS, concurring.
31
While I join the opinion of the Court, I add a few words. This Virginia Act is not applied across the board to all groups that use this method of obtaining and managing litigation, but instead reflects a legislative purpose to penalize the N.A.A.C.P. because it promotes desegregation of the races. Our decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, holding that maintenance of public schools segregated by race violated the Equal Protection Clause of the Fourteenth Amendment, was announced May 17, 1954. The amendments to Virginia's code, here in issue, were enacted in 1956. Arkansas, Florida, Georgia, Mississippi, South Carolina, and Tennessee* also passed laws following our 1954 decision which brought within their barratry statutes attorneys paid by an organization such as the N.A.A.C.P. and representing litigants without charge.
32
The bill, here involved, was one of five that Virginia enacted 'as parts of the general plan of massive resistance to the integration of schools of the state under the Supreme Court's decrees.' Those are the words of Judge Soper, writing for the court in N.A.A.C.P. v. Patty, D.C., 159 F.Supp. 503, 515. He did not indulge in guesswork. He reviewed the various steps taken by Virginia to resist our Brown decision, starting with the Report of the Gray Commission on November 11, 1955. Id., at 512. He mentioned the 'interposition resolution' passed by the General Assembly on February 1, 1956, the constitutional amendment made to carry out the recommendation of the Report of the Gray Commission, and the address of the Governor before the General Assembly that enacted the five laws, including the present one. Id., at 513—515. These are too lengthy to repeat here. But they make clear the purpose of the present law as clear a purpose to evade our prior decisions as was the legislation in Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281, another instance of a discriminatory state law. The fact that the contrivance used is subtle and indirect is not material to the question. 'The Amendment nullifies sophisticated as well as simple-minded modes of discrimination.' Id., at 275, 59 S.Ct. at 876. There we looked to the origins of the state law and the setting in which it operated to find its discriminatory nature. It is proper to do the same here.
33
Discrimination also appears on the face of this Act. The line drawn in § 54—78 is between an organization which has 'no pecuniary right or liability' in a judicial proceeding and one that does. As we said in N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 459, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488, the N.A.A.C.P. and its members are 'in every practical sense identical. The Association * * * is but the medium through which its individual members seek to make more effective the expression of their own views.' Under the statute those who protect a 'pecuniary right or liability' against unconstitutional invasions may indulge in 'the solicitation * * * of business for (an) attorney,' while those who protect other civil rights may not. This distinction helps make clear the purpose of the legislation, which, as Judge Soper said, was part of the program of 'massive resistance' against Brown v. Board of Education, supra.
34
Mr. Justice WHITE, concurring in part and dissenting in part.
35
I agree that as construed by the Virginia Supreme Court, Chapter 33 does not proscribe only the actual control of litigation after its commencement, that it does forbid, under threat of criminal punishment, advising the employment of particular attorneys, and that as so construed the statute is unconstitutional.
36
Nor may the statute be saved simply by saying it prohibits only the 'control' of litigation by a lay entity, for it seems to me that upon the record before us the finding of 'control' by the Virginia Supreme Court must rest to a great extent upon an inference from the exercise of those very rights which this Court or the Virginia Supreme Court, or both, hold to be constitutionally protected: advising Negroes of their constitutional rights, urging them to institute litigation of a particular kind, recommending particular lawyers and financing such litigation. Surely it is beyond the power of any State to prevent the exercise of constitutional rights in the name of preventing a lay entity from controlling litigation. Consequently, I concur in the judgment of the Court, but not in all of its opinion.
37
If we had before us, which we do not, a narrowly drawn statute proscribing only the actual day-to-day management and dictation of the tactics, strategy and conduct of litigation by a lay entity such as the NAACP, the issue would be considerably different, at least for me; for in my opinion neither the practice of law by such an organization nor its management of the litigation of its members or others is constitutionally protected. Both practices are well within the regulatory power of the State. In this regard I agree with my Brother HARLAN.
38
It is not at all clear to me, however, that the opinion of the majority would not also strike down such a narrowly drawn statute. To the extent that it would, I am in disagreement. Certainly the NAACP, as I understand its position before this Court, denied that it had managed or controlled the litigation which it had urged its members or others to bring, disclaimed and desire to do so and denied any adverse effects upon its operations if lawyers representing clients in school desegregation or other litigation financed by the NAACP represented only those clients and were under no obligation to follow the dictates of the NAACP in the conduct of that litigation. I would avoid deciding a case not before the Court.
39
Mr. Justice HARLAN, whom Mr. Justice CLARK and Mr. Justice STEWART join, dissenting.
40
No member of this Court would disagree that the validity of state action claimed to infringe rights assured by the Fourteenth Amendment is to be judged by the same basic constitutional standards whether or not racial problems are involved. No worse setback could befall the great principles established by Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, than to give fairminded persons reason to think otherwise. With all respect, I believe that the striking down of this Virginia statute cannot be squared with accepted constitutional doctrine in the domain of state regulatory power over the legal profession.
I.
41
At the outset the factual premises on which the Virginia Supreme Court of Appeals upheld the application of Chapter 33 to the activities of the NAACP in the area of litigation, as well as the scope of that court's holding, should be delineated.
42
First, the lawyers who participate in litigation sponsored by petitioner are, almost without exception, members of the legal staff of the NAACP Virginia State Conference. (It is, in fact, against Conference policy to give financial support to litigation not handled by a staff lawyer.) As such, they are selected by petitioner, are compensated by it for work in litigation (whether or not petitioner is a party thereto), and so long as they remain on the staff, are necessarily subject to its directions. As the Court recognizes, it is incumbent on staff members to agree to abide by NAACP policies.
43
Second, it is equally clear that the NAACP's directions, or those of its officers and divisions, to staff lawyers cover many subjects relating to the form and substance of litigation. Thus, in 1950, it was resolved at a Board of Directors meeting that:
44
'Pleadings in all educational cases—the prayer in the pleading and proof be aimed at obtaining education on a non-segregated basis and that no relief other than that will be acceptable as such.
45
'Further, that all lawyers operating under such rule will urge their client and the branches of the Association involved to insist on this final relief.'
46
The minutes of the meeting went on to state:
47
'Mr. Weber inquired if this meant that the branches would be prohibited from starting equal facility cases and the Special Counsel said it did.'
48
In 1955, a Southwide NAACP Conference issued directions to all NAACP branches outlining the procedure for obtaining desegregation of schools and indicating the point in the procedure at which litigation should be brought and the matter turned over to the 'Legal Department.' At approximately the same time, the Executive Secretary of the Virginia State Conference issued a directive urging that in view of the possibility of an extended court fight, 'discretion and care should be exercised to secure petitioners who will—if need be—go all the way.'
49
A report issued several years later, purporting to give an 'up to date picture' of action taken in Virginia by petitioner stated: 'Selection of suit sites reserved for legal staff'; 'State legal staff ready for action in selected areas'; and 'The majority of our branches are willing to support legal action or any other program leading to early desegregation of schools that may be suggested by the National and State Conference officers.'
50
In short, as these and other materials in the record show, the form of pleading, the type of relief to be requested, and the proper timing of suits have to a considerable extent, if not entirely, been determined by the Conference in coordination with the national office.
51
Third, contrary to the conclusion of the Federal District Court in the original federal proceeding, NAACP v. Patty, 159 F.Supp. 503, 508—509, the present record establishes that the petitioner does a great deal more than to advocate litigation and to wait for prospective litigants to come forward. In several instances, especially in litigation touching racial discrimination in public schools, specific directions were given as to the types of prospective plaintiffs to be sought, and staff lawyers brought blank forms to meetings for the purpose of obtaining signatures authorizing the prosecution of litigation in the name of the signer.
52
Fourth, there is substantial evidence indicating that the normal incidents of the attorney-client relationship were often absent in litigation handled by staff lawyers and financed by petitioner. Forms signed by prospective litigants have on occasion not contained the name of the attorney authorized to act. In many cases, whether or not the form contained specific authorization to that effect, additional counsel have been brought into the action by staff counsel. There were several litigants who testified that at no time did they have any personal dealings with the lawyers handling their cases nor were they aware until long after the event that suits had been filed in their names. This is not to suggest that the petitioner has been shown to have sought plaintiffs under false pretenses or by inaccurate statements. But there is no basis for concluding that these were isolated incidents, or that petitioner's methods of operation have been such as to render these happenings out of the ordinary.
53
On these factual premises, amply supported by the evidence, the Virginia Supreme Court of Appeals held that petitioner and those associated with it
54
'solicit prospective litigants to authorize the filing of suits by NAACP and Fund (Educational Defense Fund) lawyers, who are paid by the Conference and controlled by NAACP policies * * *' (202 Va., at 159, 116 S.E.2d at 68—69),
55
and concluded that this conduct violated Chapter 33 as well as Canons 35 and 47 of the Canons of Professional Ethics of the American Bar Association, which had been adopted by the Virginia courts more than 20 years ago.
56
At the same time the Virginia court demonstrated a responsible awareness of two important limitations on the State's power to regulate such conduct. The first of these is the long-standing recognition, incorporated in the Canons, of the different treatment to be accorded to those aiding the indigent in prosecuting or defending against legal proceedings. The second, which coupled with the first led the court to strike down Chapter 36 (p. 330), is the constitutional right of any person to express his views, to disseminate those views to others, and to advocate action designed to achieve lawful objectives, which in the present case are also constitutionally due. Mindful of these limitations, the state court construed Chapter 33 not to prohibit petitioner and those associated with it from acquainting colored persons with what it believes to be their rights, or from advising them to assert those rights in legal proceedings, but only from 'solicit(ing) legal business for their attorneys or any particular attorneys.' Further, the court determined that Chapter 33 did not preclude petitioner from contributing money to persons to assist them in prosecuting suits, if the suits 'have not been solicited by the appellants (the NAACP and Defense Fund) or those associated with them, and channeled by them to their attorneys or any other attorneys.'
57
In my opinion the litigation program of the NAACP, as shown by this record, falls within an area of activity which a State may constitutionally regulate. (Whether it was wise for Virginia to exercise that power in this instance is not, of course, for us to say.) The Court's contrary conclusion rests upon three basic lines of reasoning: (1) that in the context of the racial problem the NAACP's litigating activities are a form of political expression within the protection of the First Amendment, as extended to the States by the Fourteenth; (2) that no sufficiently compelling subordinating state interest has been shown to justify Virginia's particular regulation of these activities; and (3) that in any event Chapter 33 must fall because of vagueness, in that as construed by the state court the line between the permissible and impermissible under the statute is so uncertain as potentially to work a stifling of constitutionally protected rights. Each of these propositions will be considered in turn.
II.
58
Freedom of expression embraces more than the right of an individual to speak his mind. It includes also his right to advocate and his right to join with his fellows in an effort to make that advocacy effective. Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480. And just as it includes the right jointly to petition the legislature for redress of grievances, see Eastern R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 137— 138, 81 S.Ct. 523, 529—530, 5 L.Ed.2d 464, so it must include the right to join together for purposes of obtaining judicial redress. We have passed the point where litigation is regarded as an evil that must be avoided if some accommodation short of a lawsuit can possibly be worked out. Litigation is often the desirable and orderly way of resolving disputes of broad public significance, and of obtaining vindication of fundamental rights. This is particularly so in the sensitive area of racial relationships.
59
But to declare that litigation is a form of conduct that may be associated with political expression does not resolve this case. Neither the First Amendment nor the Fourteenth constitutes an absolute bar to government regulation in the fields of free expression and association. This Court has repeatedly held that certain forms of speech are outside the scope of the protection of those Amendments, and that, in addition, 'general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise,' are permissible 'when they have been found justified by subordinating valid governmental interests.'1 The problem in each such case is to weigh the legitimate interest of the State against the effect of the regulation on individual rights.
60
An analogy may be drawn between the present case and the rights of workingmen in labor disputes. At the heart of these rights are those of a laborer or a labor representative to speak: to inform the public of his disputes and to urge his fellow workers to join together for mutual aid and protection. So important are these particular rights that absent a clear and present danger of the gravest evil, the State not only is without power to impose a blanket prohibition on their exercise, Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, but also may not place any significant obstacle in their path, Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430.
61
But as we move away from speech alone and into the sphere of conduct—even conduct associated with speech or resulting from it the area of legitimate governmental interest expands. A regulation not directly suppressing speech or peaceable assembly, but having some impact on the form or manner of their exercise will be sustained if the regulation has a reasonable relationship to a proper governmental objective and does not unduly interfere with such individual rights. Thus, although the State may not prohibit all informational picketing, it may prevent mass picketing, Allen-Bradley Local, etc. v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154, and picketing for an unlawful objective, Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834. Although it may not prevent advocacy of union membership, it can to some degree inquire into and define the qualifications of those who solicit funds from prospective members or who hold other positions of responsibility.2 A legislature may not wholly eliminate the right of collective action by workingmen,3 but it may to a significant extent dictate the form their organization shall take4 and may limit the demands that the organization may make on employers and others, see, e.g., International Brotherhood of Electrical Workers, etc. v. National Labor Relations Board, 341 U.S. 694, 705, 71 S.Ct. 954, 960, 95 L.Ed. 1299.
62
Turning to the present case, I think it evident that the basic rights in issue are those of the petitioner's members to associate, to discuss, and to advocate. Absent the gravest danger to the community, these rights must remain free from frontal attack or suppression, and the state court has recognized this in striking down Chapter 36 and in carefully limiting the impact of Chapter 33. But litigation, whether or not associated with the attempt to vindicate constitutional rights, is conduct; it is speech plus. Although the State surely may not broadly prohibit individuals with a common interest from joining together to petition a court for redress of their grievances, it is equally certain that the State may impose reasonable regulations limiting the permissible form of litigation and the manner of legal representation within its borders. Thus the State may, without violating protected rights, restrict those undertaking to represent others in legal proceedings to properly qualified practitioners. And it may determine that a corporation or association does not itself have standing to litigate the interests of its shareholders or members—that only individuals with a direct interest of their own may join to press their claims in its courts. Both kinds of regulation are undeniably matters of legitimate concern to the State and their possible impact on the rights of expression and association is far too remote to cause any doubt as to their validity.
63
So here, the question is whether the particular regulation of conduct concerning litigation has a reasonable relation to the furtherance of a proper state interest, and whether that interest outweighs any foreseeable harm to the furtherance of protected freedoms.
III.
64
The interest which Virginia has here asserted is that of maintaining high professional standards among those who practice law within its borders. This Court has consistently recognized the broad range of judgments that a State may properly make in regulating any profession. See, e.g., Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623; Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086; Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563. But the regulation of professional standards for members of the bar comes to us with even deeper roots in history and policy, since courts for centuries have possessed disciplinary powers incident to the administration of justice. See Cohen v. Hurley, 366 U.S. 117, 123 124, 81 S.Ct. 954, 958, 6 L.Ed.2d 156; Konigsberg v. State Bar, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105; Martin v. Walton, 368 U.S. 25, 82 S.Ct. 1, 7 L.Ed.2d 5.
65
The regulation before us has its origins in the long-standing common-law prohibitions of champerty, barratry, and maintenance, the closely related prohibitions in the Canons of Ethics against solicitation and intervention by a lay intermediary, and statutory provisions forbidding the unauthorized practice of law.5 The Court recognizes this formidable history, but puts it aside in the present case on the grounds that there is here no element of malice or of pecuniary gain, that the interests of the NAACP are not to be regarded as substantially different from those of its members, and that we are said to be dealing here with a matter that transcends mere legal ethics—the securing of federally guaranteed rights. But these distinctions are too facile. They do not account for the full scope of the State's legitimate interest in regulating professional conduct. For although these professional standards may have been born in a desire to curb malice and self-aggrandizement by those who would use clients and the courts for their own pecuniary ends, they have acquired a far broader significance during their long development.
66
First, with regard to the claimed absence of the pecuniary element, it cannot well be suggested that the attorneys here are donating their services, since they are in fact compensated for their work. Nor can it tenably be argued that petitioner's litigating activities fall into the accepted category of aid to indigent litigants.6 The reference is presumably to the fact that petitioner itself is a nonprofit organization not motivated by desire for financial gain but by public interest and to the fact that no monetary stakes are involved in the litigation.
67
But a State's felt need for regulation of professional conduct may reasonably extend beyond mere 'ambulance chasing.' In People ex rel. Courtney v. Association of Real Estate Tax-payers, 354 Ill. 102, 187 N.E. 823, a nonprofit corporation was held in contempt for engaging in the unauthorized practice of law. The Association was formed by citizens desiring to mount an attack on the constitutionality of certain tax rolls. Membership was solicited by the circulation of blank forms authorizing employment of counsel on the applicant's behalf and asking that property be listed for litigation. The attorneys were selected, paid, and controlled by the corporation, which made their services available to the taxpayer members at no cost.7
68
Similarly, several decisions have condemned the provision of counsel for their members by nonprofit automobile clubs, even in instances involving challenges to the validity of a statute or ordinance. In re Maclub of America, Inc., 295 Mass. 45, 3 N.E.2d 272, 105 A.L.R. 1360;8 People ex rel. Chicago Bar Ass'n v. Chicago Motor Club, 362 Ill. 50, 199 N.E. 1; see Opinion 8, Opinions of the Committee on Professional Ethics and Grievances, American Bar Assn.
69
Of particular relevance here is a series of nationwide adjudications culminating in 1958 in In re Brotherhood of Railroad Trainmen, 13 Ill.2d 391, 150 N.E.2d 163. That was a proceeding, remarkably similar to the present one, for a declaratory judgment that the activities of the Brotherhood in assisting with the prosecution of it members' personal injury claims under the Federal Employers' Liability Act9 were not inconsistent with a state law forbidding lay solicitation of legal business. The court found that each lodge of the Brotherhood appointed a member to file accident reports with the central office, and these reports were sent by the central office to a regional investigator, who, equipped with a contract form for the purpose, would urge the injured member to consult and employ one of the 16 regional attorneys retained by the Brotherhood. The regional counsel offered his services to the injured person on the basis of a contingent fee, the amount of which was fixed by the Brotherhood. The counsel themselves bore the costs of investigation and suit and of operating the Union's legal aid department.
70
The Union argued that it was not motivated by any desire for profit; that it had an interest commensurate with that of its members in enforcement of the federal statute; and that the advantage taken of injured parties by unscrupulous claims adjustors made it essential to furnish economical recourse to dependable legal assistance. The court ruled against the Union on each of these points. It permitted the organization to maintain an investigative staff, to advise its members regarding their legal rights and to recommend particular attorneys, but it required the Union to stop fixing fees, to sever all financial connections with counsel, and to cease the distribution of contract forms.
71
The practices of the Brotherhood, similar in so many respects to those engaged in by the petitioner here, have been condemned by every state court which has considered them. Petition of Committee on Rule 28 of the Cleveland Bar Ass'n, 15 Ohio L.Abs. 106; In re O'Neill, 5 F.Supp. 465 (D.C.E.D.N.Y.); Hildebrand v. State Bar, 36 Cal.2d 504, 225 P.2d 508; Doughty v. Grills, 37 Tenn.App. 63, 260 S.W.2d 379; and see Atchison, T. & S.F.R. Co. v. Jackson, 235 F.2d 390, 393 (C.A.10th Cir.). And for similar opinions on related questions by bar association committees, see Opinion A, Opinions of the Committee on Unauthorized Practice of the Law, American Bar Assn., 36 A.B.A.J. 677; Opinion 773, Committee on Professional Ethics, Assn. of the Bar of the City of New York.
72
Underlying this impressive array of relevant precedent is the widely shared conviction that avoidance of improper pecuniary gain is not the only relevant factor in determining standards of professional conduct. Running perhaps even deeper is the desire of the profession, of courts, and of legislatures to prevent any interference with the uniquely personal relationship between lawyer and client and to maintain untrammeled by outside influences the responsibility which the lawyer owes to the courts he serves.
73
When an attorney is employed by an association or corporation to represent individual litigants, two problems arise, whether or not the association is organized for profit and no matter how unimpeachable its motives. The lawyer becomes subject to the control of a body that is not itself a litigant and that, unlike the lawyers it employs, is not subject to strict professional discipline as an officer of the court. In addition, the lawyer necessarily finds himself with a divided allegiance—to his employer and to his client—which may prevent full compliance with his basic professional obligations. The matter was well stated, in a different but related context, by the New York Court of Appeals in In re Co-operative Law Co., 198 N.Y. 479, 483—484, 92 N.E. 15, 16, 32 L.R.A.,N.S., 55:
74
'The relation of attorney and client is that of master and servant in a limited and dignified sense, and it involves the highest trust and confidence. It cannot be delegated without consent, and it cannot exist between an attorney employed by a corporation to practice law for it, and a client of the corporation, for he would be subject to the directions of the corporation, and not to the directions of the client.'
75
There has, to be sure, been professional criticism of certain applications of these policies.10 But the continued vitality of the principles involved is beyond dispute,11 and at this writing it is hazardous at best to predict the direction of the future. For us, however, any such debate is without relevance, since it raises questions of social policy which have not been delegated to this Court for decision. Our responsibility is simply to determine the extent of the State's legitimate interest and to decide whether the course adopted bears a sufficient relation to that interest to fall within the bounds set by the Constitution.
76
Second, it is claimed that the interests of petitioner and its members are sufficiently identical to eliminate any 'serious danger' of 'professionally reprehensible conflicts of interest.' 371 U.S., p. 443, 83 S.Ct., p. 343. Support for this claim is sought in our procedural holding in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 458—459, 78 S.Ct. 1163, 1169—1170, 2 L.Ed.2d 1488. But from recognizing, as in that case, that the NAACP has standing to assert the rights of its members when it is a real party in interest, it is plainly too large a jump to conclude that whenever individuals are engaged in litigation involving claims that the organization promotes, there cannot be any significant difference between the interests of the individual and those of the group.
77
The NAACP may be no more than the sum of the efforts and views infused in it by its members; but the totality of the separate interests of the members and others whose causes the petitioner champions, even in the field of race relations, may far exceed in scope and variety that body's views of policy, as embodied in litigating strategy and tactics. Thus it may be in the interest of the Association in every case to make a frontal attack on segregation, to press for an immediate breaking down of racial barriers, and to sacrifice minor points that may win a given case for the major points that may win other cases too. But in a particular litigation, it is not impossible that after authorizing action in his behalf, a Negro parent, concerned that a continued frontal attack could result in schools closed for years, might prefer to wait with his fellows a longer time for good-faith efforts by the local school board than is permitted by the centrally determined policy of the NAACP. Or he might see a greater prospect of success through discussions with local school authorities than through the litigation deemed necessary by the Association. The parent, of course, is free to withdraw his authorization, but is his lawyer, retained and paid by petitioner and subject to its directions on matters of policy, able to advise the parent with that undivided allegiance that is the hallmark of the attorney-client relation? I am afraid not.
78
Indeed, the potential conflict in the present situation is perhaps greater than those in the union, automobile club, and some of the other cases discussed above, pp. 457—460. For here, the interests of the NAACP go well beyond the providing of competent counsel for the prosecution or defense of individual claims; they embrace broadly fixed substantive policies that may well often deviate from the immediate, or even long-range, desires of those who choose to accept its offers of legal representations. This serves to underscore the close interdependence between the State's condemnation of solicitation and its prohibition of the unauthorized practice of law by a lay organization.
79
Third, it is said that the practices involved here must stand on a different footing because the litigation that petitioner supports concerns the vindication of constitutionally guaranteed rights.12
80
But surely state law is still the source of basic regulation of the legal profession, whether an attorney is pressing a federal or a state claim within its borders. See In re Brotherhood of Railroad Trainmen, supra. The true question is whether the State has taken action which unreasonably obstructs the assertion of federal rights. Here, it cannot be said that the underlying state policy is inevitably inconsistent with federal interests. The State has sought to prohibit the solicitation and sponsoring of litigation by those who have no standing to initiate that litigation themselves and who are not simply coming to the assistance of indigent litigants. Thus the state policy is not unrelated to the federal rules of standing—the insistence that federal court litigants be confined to those who can demonstrate a pressing personal need for relief. See McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151, 162, 35 S.Ct. 69, 71, 59 L.Ed. 169; Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078; cf. Stark v. Wickard, 321 U.S. 288, 304—305, 64 S.Ct. 559, 568, 88 L.Ed. 733, and cases cited therein. This is a requirement of substance as well as form. It recognizes that, although litigation is not something to be avoided at all costs, it should not be resorted to in undue haste, without any effort at extrajudicial resolution, and that those lacking immediate private need may make unnecessary broad attacks based on inadequate records. Nor is the federal interest in impeding precipitate resort to litigation diminished when that litigation concerns constitutional issues; if anything, it is intensified. United Public Workers v. Mitchell, 330 U.S. 75, 86—91, 67 S.Ct. 556, 562 565, 91 L.Ed. 754.
81
There remains to be considered on this branch of the argument the question whether this particular exercise of state regulatory power bears a sufficient relation to the established and substantial interest of the State to overcome whatever indirect impact this statute may have on rights of free expression and association.
82
Chapter 33 as construed does no more than prohibit petitioner and those associated with it from soliciting legal business for its staff attorneys or, under a fair reading of the state court's opinion and amounting to the same thing, for 'outside' attorneys who are subject to the Association's control in the handling of litigation which it refers to them. See pp. 466—468, infra. Such prohibitions bear a strong and direct relation to the area of legitimate state concern. In matters of policy, involving the form, timing, and substance of litigation, such attorneys are subject to the directions of petitioner and not of those nominally their clients. Further, the methods used to obtain litigants are not conducive to encouraging the kind of attorney-client relationships which the State reasonably may demand. There inheres in these arrangements, then, the potentialities of divided allegiance and diluted responsibility which the State may properly undertake to prevent.
83
The impact of such a prohibition on the rights of petitioner and its members to free expression and association cannot well be deemed so great as to require that it be struck down in the face of this substantial state interest. The important function of organizations like petitioner in vindicating constitutional rights is not of course to be minimized, but that function is not, in my opinion, substantially impaired by this statute. Of cardinal importance, this regulatory enactment as construed does not in any way suppress essembly, or advocacy of litigation in general or in particular. Moreover, contrary to the majority's suggestion, it does not, in my view, prevent petitioner from recommending the services of attorneys who are not subject to its directions and control. See pp. 460—468, infra. And since petitioner may contribute to those who need assistance, the prohibition should not significantly discourage anyone with sufficient interest from pressing his claims in litigation or from joining with others similarly situated to press those claims. It prevents only the solicitation of business for attorneys subject to petitioner's control, and as so limited, should be sustained.
IV.
84
The Court's remaining line of reasoning is that Chapter 33 as construed (hereafter sometimes simply 'the statute') must be struck down on the score of vagueness and ambiguity. I think that this 'vagueness' concept has no proper place in this case and only serves to obsure rather than illuminate the true questions presented.
85
The Court's finding of ambiguity rests on the premise that the statute may prohibit mere recommendation of 'any particular attorney,' whether or not a member of the NAACP's legal staff or otherwise subject to the Association's direction and control. Proceeding from this premise the Court ends by invalidating the entire statute on the basis that this alleged vagueness too readily lends itself to the stifling of protected activity.
86
The cardinal difficulty with this argument is that there simply is no real uncertainty in the statute, as the state court found, 202 Va., at 154, 116 S.E.2d, at 65, or in that court's construction of it. It is true that the concept of vagueness has been used to give 'breathing space' to 'First Amendment Freedoms,' see Amsterdam, Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U. of Pa. L. Rev. 67, but it is also true, as that same commentator has well stated, that '(v)agueness is not an extraneous ploy or a judicial deus ex machina.' Id., at 88. There is, in other words, 'an actual vagueness component in the vagueness decisions.' Ibid. And the test is whether the law in question has established standards of guilt sufficiently ascertainable that men of common intelligence need not guess at its meaning. Connally v. General Constr. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322; Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. Laws that have failed to meet this standard are, almost without exception, those which turn on language calling for the exercise of subjective judgment, unaided by objective norms. E.g., United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516 ('unreasonable' charges); Winters v. New York, supra ('so massed as to becomes vehicles for inciting'); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 ('sacrilegious'). No such language is to be found here.
87
Ambiguity in the present statute can be made to appear only at the price of strained reading of the State Court's opinion. As construed, the statute contains two types of prohibition relating to solicitation. The first prohibits such groups as the NAACP and the Educational Defense Fund, 'their officers, members, affiliates, voluntary workers and attorneys' from soliciting legal business for 'their attorneys.'13 And the state court made it clear that 'their attorneys' referred to 'attorneys whom they (the NAACP and the Fund) pay, and who are subject to their directions.' 202 Va., at 164, 116 S.E.2d, at 72. This is the practice with which the state court's opinion is predominantly concerned and which gave rise to the intensive consideration by that court of the relations between petitioner and its legal staff. Surely, there is no element of uncertainty involved in this prohibition. The state court has made it plain that the solicitation involved is not the advocacy of litigation in general or in particular but only that involved in the handling of litigation by petitioner's own paid and controlled staff attorneys. Compare Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430.
88
The second prohibition in the statute is the solicitation by petitioner of legal business for 'any particular attorneys' or the channeling of litigation which it supports to 'any other attorneys,' whether or not they are petitioner's staff attorneys. This language of the state court, coupled primarily with this Court's own notion that Chapter 33 in defining 'agents' has departed from common-law principles, leads the majority to conclude that the statute may have been interpreted as precluding organizations such as petitioner from simply advising prospective litigants to engage for themselves particular attorneys, whether members of the organization's legal staff or not.
89
Surely such an idea cannot be entertained with respect to the state court's discussion of the NAACP and its staff attorneys. The record is barren of all evidence that any litigant, in the type of litigation with which this case is concerned, ever attempted to retain for his own account one of those attorneys, and indeed strongly indicates that such an arrangement would not have been acceptable to the NAACP so long as such a lawyer remained on its legal staff. And the state court's opinion makes it clear that that court was not directing itself to any such situation.
90
Nor do I think it may reasonably be concluded that the state court meant to preclude the NAACP from recommending 'outside' attorneys to prospective litigants, so long as it retained no power of direction over such lawyers. Both in their immediate context and in light of the entire opinion and record below, it seems to me very clear that the phrases 'or any particular attorneys' and 'or any other attorneys' both have reference only to those 'outside' attorneys with respect to whom the NAACP or the Defense Fund bore a relationship equivalent to that existing between them and 'their attorneys.'14 It savors almost of disrespect to the Virgina Supreme Court of Appeals, whose opinion manifests full awareness of the considerations that have traditionally marked the line between professional and unprofessional conduct, to read this part of its opinion otherwise. Indeed the ambiguity which this Court now finds quite evidently escaped the notice of both petitioner and its counsel for they did not so much as suggest such an argument in their briefs. Moreover, the kind of approach that the majority takes to the statute is quite inconsistent with the precept that our duty is to construe legislation, if possible, 'to save and not to destroy.' National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30, 57 S.Ct. 615, 620, 81 L.Ed. 893, and cases cited; United States v. Rumely, 345 U.S. 41, 47, 73 S.Ct. 543, 546, 97 L.Ed. 770.
91
But even if the statute justly lent itself to the now attributed ambiguity, the Court should excise only the ambiguous part of it, not strike down the enactment in its entirety. Our duty to respect state legislation, and to go no further than we must in declining to sustain its validity, has led to a doctrine of separability in constitutional adjudication, always followed except in instances when its effect would be to leave standing a statute that was still uncertain in its potential application.15 See Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205. Given the 'ambiguity' view of the Court, the separability doctrine should at least have been applied here, since what would then remain of Chapter 33 could not conceivably be deemed ambiguous.16 In my view, however, the statute as construed below is not ambiguous at all.
V.
92
Since the majority has found it unnecessary to consider them, only a few words need be said with respect to petitioner's contentions that Chapter 33 deprives it of property without due process of law and denies it equal protection.
93
The due process claim is disposed of once it appears that this statute falls within the range of permissible state regulation in pursuance of a legitimate goal. Pp. 455—465, supra.
94
As to equal protection, this position is premised on the claim that the law was directed solely at petitioner's activities on behalf of Negro litigants. But Chapter 33 as it comes to us, with a narrowing construction by the state court that anchors the statute firmly to the common law and to the court's own independently existing supervisory powers over the Virginia legal profession, leaves no room for any finding of discriminatory purpose. Petitioner is merely one of a variety of organizations that may come within the scope of the long-standing prohibitions against solicitation and unauthorized practice. It would of course be open to the petitioner, if the facts should warrant, to claim that Chapter 33 was being enforced discriminatorily as to it and not against others similarly circumstanced. See Yick Wo v. Hopkins, 118 U.S. 356, 373—374, 6 S.Ct. 1064, 1072—1073, 30 L.Ed. 220. But the present record is barren of any evidence suggesting such unequal application, and we may not presume that it will occur. People of State of New York ex rel. Lieberman v, Van De Carr, 199 U.S. 552, 562—563, 26 S.Ct. 144, 146—147, 50 L.Ed. 305; Douglas v. Noble, 261 U.S. 165, 170, 43 S.Ct. 303, 305, 67 L.Ed. 590.17
95
I would affirm.
1
NAACP v. Patty, 159 F.Supp. 503 (D.C.E.D.Va.1958). On direct appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253, from the judgment striking down Chapters 31, 32 and 35, this Court reversed, remanding with instructions to permit the complainants to seek an authoritative interpretation of the statutes in the Virginia courts. Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152. In ensuing litigation, the Circuit Court of the City of Richmond held most of the provisions of the three chapters unconstitutional. NAACP v. Harrison, Chancery causes No. B—2879 and No. B—2880, Aug. 31, 1962.
2
NAACP v. Harrison, 202 Va. 142, 116 S.E.2d 55 (1960). Chapter 36, which is codified in § 18.1—394 et seq., Code of Virginia (1960 Repl. Vol.), prohibits the advocacy of suits against the Commonwealth and the giving of any assistance, financial or otherwise, to such suits.
3
Certiorari was first granted, sub nom. NAACP v. Gray, 83 S.Ct. 181. The litigation began sub nom. NAACP v. Patty, Attorney General of Virginia. During the course of the litigation the names of successive holders of that office have been substituted as party respondent. See Supreme Court Rule 48, par. 3, as amended, 28 U.S.C.A. 366 U.S. 979.
4
However, the record contains two instances where Negro litigants had retained attorneys, not on the legal staff, prior to seeking financial assistance from the Conference. The Conference rendered substantial financial assistance in both cases. In one case the Conference paid the attorney's fee.
5
The Defense Fund, which is not involved in the present phase of the litigation, is a companion body to the NAACP. It is also a nonprofit New York corporation licensed to do business in Virginia, and has the same general purposes and policies as the NAACP. The Fund maintains a legal staff in New York City and retains regional counsel elsewhere, one of whom is in Virginia. Social scientists, law professors and law students throughout the country donate their services to the Fund without compensation. When requested by the NAACP, the Defense Fund provides assistance in the form of legal research and counsel.
6
Seven persons who were or had been plaintiffs in Virginia public school suits did testify that they were unaware of their status as plaintiffs and ignorant of the nature and purpose of the suits to which they were parties. It does not appear, however, that the NAACP had been responsible for their involvement in litigation. These plaintiffs testified that they had attended meetings of parents without grasping the meaning of the discussions, had signed authorizations either without reading or without understanding them, and thereafter had paid no heed to the frequent meetings of parents called to keep them abreast of legal developments. They also testified that they were not accustomed to read newspapers or listen to the radio. Thus they seem to have had little grasp of what was going on in the communities. Two of these seven plaintiffs had been persuaded to sign authorizations by their own children, who had picked up forms at NAACP meetings. Five were plaintiffs in the Prince Edward County school litigation, in which 186 persons were joined as plaintiffs. See NAACP v. Patty, 159 F.Supp. 503, 517 (D.C.E.D.Va.1958).
7
Code of Virginia, 1950, §§ 54—74, 54—78, and 54—79, as amended by Acts of 1956, Ex.Sess., c. 33 (Repl. Vol. 1958), read in pertinent part as follows (amendments in italics):
'§ 54—74. * * * If the Supreme Court of Appeals, or any court of record of this State, observes, or if complaint, verified by affidavit, be made by any person to such court of any malpractice or of any unlawful or dishonest or unworthy or corrupt or unprofessional conduct on the part of any attorney, or that any person practicing law is not duly licensed to practice in this State, such court shall, if it deems the case a proper one for such action, issue a rule against such attorney or other person to show cause why his license to practice law shall not be revoked or suspended.
'Upon the hearing, if the defendant be found guilty by the court, his license to practice law in this State shall be revoked, or suspended for such time as the court may prescribe; provided, that the court, in lieu of revocation or suspension, may, in its discretion, reprimand such attorney.
"Any malpractice, or any unlawful or dishonest or unworthy or corrupt or unprofessional conduct', as used in this section, shall be construed to include the improper solicitation of any legal or professional
business or employment, either directly or indirectly, or the acceptance of employment, retainer, compensation or costs from any person, partnership, corporation, organization or association with knowledge that such person, partnership, corporation, organization or association has violated any provision of article 7 of this chapter (§§ 54—78 to 54—83.1), or the failure, without sufficient cause, within a reasonable time after demand, of any attorney at law, to pay over and deliver to the person entitled thereto, any money, security or other property, which has come into his hands as such attorney; provided, however, that nothing contained in this article shall be construed to in any way prohibit any attorney from accepting employment to defend any person, partnership, corporation, organization or association accused of violating the provisions of article 7 of this chapter.
'§ 54—78. * * * (1) A 'runner' or 'capper' is any person, corporation, partnership or association acting in any manner or in any capacity as an agent for an attorney at law within this State or for any person, partnership, corporation, organization or association which employs, retains or compensates any attorney at law in connection with any judicial proceeding in which such person, partnership, corporation, organization or association is not a party and in which it has no pecuniary right or liability, in the solicitation or procurement of business for such attorney at law * * * or for such person, partnership, corporation, organization or association in connection with any judicial proceedings for which such attorney or such person, partnership, corporation, organization or association is employed, retained or compensated.
'The fact that any person, partnership, corporation, organization or association is a party to any judicial proceeding shall not authorize any runner or capper to solicit or procure business for such person, partnership corporation, organization or association or any attorney at law employed, retained or compensated by such person, partnership, corporation, organization or association.
'(2) An 'agent' is one who represents another in dealing with a third person or persons.
'§ 54—79. * * * It shall be unlawful for any person, corporation, partnership or association to act as a runner or capper * * * as defined in § 54—78 to solicit any business for * * * an attorney at law or such person, partnership, corporation, organization or association, in and about the State prisons, county jails, city jails, city prisons, or other places of detention of persons, city receiving hospitals, city and county receiving hospitals, county hospitals, police courts, * * * county courts, municipal courts, * * * courts of record, or in any public institution or in any public place or upon any public street or highway or in and about private hospitals, sanitariums, or in and about any private institution or upon private property of any character whatsoever.' Code of Virginia, 1950, §§ 54—82, 54—83.1, as amended (Repl. Vol. 1958), provide:
'§ 54.82. Penalty for violation.—Any person, corporation, partnership or association violating any of the provisions of this article shall be guilty of a misdemeanor, and shall be punishable by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment for not less than one month nor more than six months, or by both such fine and imprisonment. * * *
'§ 54—83.1. Injunction against running, capping, soliciting and maintenance.—The Commonwealth's attorney, or any person, firm or corporation against whom any claim for damage to property or damages for personal injuries or for death resulting therefrom, is or has been asserted, may maintain a suit in equity against any person who has solicited employment for himself or has induced another to solicit or encourage his employment, or against any person, firm, partnership or association which has acted for another in the capacity of a runner or capper or which has been stirring up litigation in such a way as to constitute maintenance whether such solicitation was successful or not, to enjoin and permanently restrain such person, his agents, representatives and principals from soliciting any such claims against any person, firm or corporation subsequent to the date of the injunction.'
8
171 Val., pp. xxxii—xxxiii, xxxv (1938). Canon 35 reads in part as follows:
'Intermediaries.—The professional services of a lawyer should not be controlled or exploited by any lay agency, personal or corporate, which intervenes, between client and lawyer. A lawyer's responsibilities and qualifications are individual. He should avoid all relations which direct the performance of his duties by or in the interest of such intermediary. A lawyer's relation to his client should be personal, and the responsibility should be direct to the client. Charitable societies rendering aid to the indigent are not deemed such intermediaries.' Canon 47 reads as follows:
'Aiding the Unauthorized Practice of Law.—No lawyer shall permit his professional services, or his name, to be used in aid of, or to make possible, the unauthorized practice of law by any lay agency, personal or corporate.'
9
'(T)he solicitation of legal business by the appellants, their officers, members, affiliates, voluntary workers and attorneys, as shown by the evidence, violates chapter 33 and the canons of legal ethics;
'* * * attorneys who accept employment by appellants to represent litigants in suits solicited by the appellants, or those associated with them, are violating chapter 33 and the canons of legal ethics;
'* * * appellants and those associated with them may not be prohibited from acquainting persons with what they believe to be their legal rights and advising them to assert their rights by commencing or further prosecuting a suit against the Commonwealth of Virginia, any department, agency or political subdivision thereof, or any person acting as an officer or employee of such but in so advising persons to commence or further prosecute such suits the appellants, or those associated with them, shall not solicit legal business for their attorneys or any particular attorneys; and
'(b) the appellants and those associated with them may not be prohibited from contributing money to persons to assist them in commencing or further prosecuting such suits, which have not been solicited by the appellants or those associated with them, and channeled by them to their attorneys or any other attorneys.' 202 Va., at 164—165, 116 S.E.2d, at 72.
10
Petitioner also claims that Chapter 33 as construed denies equal protection of the laws, and is so arbitrary and irrational as to deprive petitioner of property without due process of law.
11
It is unclear—and immaterial—whether the Virginia court's opinion is to be read as holding that NAACP's activities violated the Canons because they violated Chapter 33, or as reinforcing its holding that Chapter 33 was violated by finding an independent violation of the Canons. Our holding that petitioner's activities are constitutionally protected applies equally whatever the source of Virginia's attempted prohibition.
12
Murphy, The South Counterattacks: The Anti-NAACP Laws, 12 W.Pol.Q. 371 (1959). See Bentley, The Process of Government: A Study of Social Pressures (1908); Rosenblum, Law as a Political Instrument (1955); Peltason, Federal Courts in the Political Process (1955); Truman, The Governmental Process: Political Interests and Public Opinion (1955); Vose, The National Consumers' League and the Brandeis Brief, 1 Midw.J. of Pol.Sci. 267 (1957); Comment, Private Attorneys-General: Group Action in the Fight for Civil Liberties, 58 Yale L.J. 574 (1949).
13
Cf. Opinion 148, Committee on Professional Ethics and Grievances, American Bar Association (1935), ruling that the Liberty League's program of assisting litigation challenging New Deal legislation did not constitute unprofessional conduct.
14
Amsterdam, Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. of Pa.L.Rev. 67, 75—76, 80—81, 96—104 (1960).
15
See NAACP v. Patty, 159 F.Supp. 503, 516—517 (D.C.E.D.Va.1958); Davis v. County School Board, 149 F.Supp. 431, 438—439 (D.C.E.D.Va.1957), rev'd on other grounds sub nom. Allen v. County School Board, 249 F.2d 462 (C.A.4th Cir.); Muse, Virginia's Massive Resistance (1961), passim.
16
See, e.g., County School Bd. of Arlington County v. Thompson, 240 F.2d 59, 64 (C.A.4th Cir., 1956) (conduct of defendant termed a 'clear manifestation of an attitude of intransigence * * *'); James v. Duckworth, 170 F.Supp. 342, 350 (D.C.E.D.Va.1959), aff'd, 267 F.2d 224 (C.A.4th Cir.); Allen v. County School Bd., 266 F.2d 507 (C.A.4th Cir., 1959); Allen v. County School Bd., 198 F.Supp. 497, 502 (D.C.E.D.Va.1961). Most NAACP-assisted litigation in Virginia in recent years has been litigation challenging public school segregation. The sheer mass of such (and related) litigation is an indication of the intensity of the struggle: ALEXANDRIA: Jones v. School Bd., 179 F.Supp. 280 (D.C.E.D.Va.1959); Jones v. School Bd., 278 F.2d 72 (C.A.4th Cir., 1960); ARLINGTON: County School Bd. v. Thompson, 240 F.2d 59 (C.A.4th Cir., 1956); Thompson v. County School Bd., 144 F.Supp. 239 (D.C.E.D.Va.1956); 159 F.Supp. 567 (D.C.E.D.Va.1957); 166 F.Supp. 529 (D.C.E.D.Va.1958); 252 F.2d 929 (C.A.4th Cir., 1958); 2 Race Rel. 810 (D.C.E.D.Va.1957); 4 Race Rel. 609 (D.C.E.D.Va.1959); 4 Race Rel. 880 (D.C.E.D.Va.1959); Hamm v. School Bd. of Arlington County, 263 F.2d 226 (C.A.4th Cir., 1959); 264 F.2d 945 (C.A.4th Cir., 1959), CHARLOTTESVILLE: School Bd. of City of Charlottesville v. Allen, 240 F.2d 59 (C.A.4th Cir., 1956); Allen v. County School Bd., 1 Race Rel. 886 (D.C.W.D.Va.1956); 2 Race
Rel. 986 (D.C.W.D.Va.1957); 3 Race Rel. 937 (D.C.W.D.Va.1958); 4 Race Rel. 881 (D.C.W.D.Va.1959); 263 F.2d 295 (C.A.4th Cir., 1959); 203 F.Supp. 225 (D.C.W.D.Va.1961); Dodson v. School Bd., 289 F.2d 439 (C.A.4th Cir., 1961); Dillard v. School Bd., 308 F.2d 920 (C.A.4th Cir., 1962). FAIRFAX COUNTY: Blackwell v. Fairfax County School Bd., 5 Race Rel. 1056 (D.C.E.D.Va.1960). FLOYD COUNTY: Walker v. Floyd County School Bd., 5 Race Rel. 1060 (D.C.W.D.Va.1960); 5 Race Rel. 714 (D.C.W.D.Va.1960). GRAYSON COUNTY: Goins v. County School Bd., 186 F.Supp. 753 (D.C.W.D.Va.1960); 282 F.2d 343 (C.A.4th Cir., 1960). NORFOLK: Beckett v. School Bd., 2 Race Rel. 337 (D.C.E.D.Va.1957); 148 F.Supp. 430 (D.C.E.D.Va.1957); 3 Race Rel. 942—964 (D.C.E.D.Va.1958); 260 F.2d 18 (C.A.4th Cir., 1958); 246 F.2d 325 (C.A.4th Cir., 1957); 181 F.Supp. 870 (D.C.E.D.Va.1959); 185 F.Supp. 459 (D.C.E.D.Va.1959); Farley v. Turner, 281 F.2d 131 (C.A.4th Cir., 1960); Hill v. School Bd., 282 F.2d 473 (C.A.4th Cir., 1960); James v. Duckworth, 170 F.Supp. 342 (D.C.E.D.Va.1959); 267 F.2d 224 (C.A.4th Cir., 1959); Adkinson v. School Bd. of Newport News, 3 Race Rel. 938 (D.C.E.D.Va.1958); Adkins v. School Bd. of Newport News, 148 F.Supp. 430 (D.C.E.D.Va.1957); 2 Race Rel. 334 (D.C.E.D.Va.1957); 246 F.2d 325 (C.A.4th Cir., 1957); Harrison v. Day, 200 Va. 439, 106 S.E.2d 636 (1959); James v. Almond, 170 F.Supp. 331 (D.C.E.D.Va.1959). PRINCE EDWARD COUNTY: Davis v. School Bd. of Prince Edward County, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083; 1 Race Rel. 82 (D.C.E.D.Va.1955); 142 F.Supp. 616 (D.C.E.D.Va.1956); 149 F.Supp. 431 (D.C.E.D.Va.1957); Allen v. County School Bd., 164 F.Supp. 786 (D.C.E.D.Va.1958); 249 F.2d 462 (C.A.4th Cir., 1957); 266 F.2d 507 (C.A.4th Cir., 1959); 6 Race Rel. 432 (D.C.E.D.Va.1961); 198 F.Supp. 497 (D.C.E.D.Va.1961); Southern School News, Aug. 1962, p. 1. PULASKI COUNTY: Crisp v. Pulaski County School Bd., 5 Race Rel. 721 (D.C.W.D.Va.1960). RICHMOND: Calloway v. Farley, 2 Race Rel. 1121 (D.C.E.D.Va.1957);
Warden v. Richmond School Bd., 3 Race Rel. 971 (D.C.E.D.Va.1958). WARREN COUNTY: Kilby v. County School Bd., 3 Race Rel. 972—973 (D.C.W.D.Va.1958); County School Bd. v. Kilby, 259 F.2d 497 (C.A.4th Cir., 1958).
Despite this volume of litigation, only 1/2 of 1% of Virginia's Negro public school pupils attend school with whites. Southern School News, Sept. 1962, p. 3.
17
See 4 Blackstone, Commentaries, 134—136. See generally Radin, Maintenance by Champerty, 24 Cal.L.Rev. 48 (1935).
18
See, e.g., Commonwealth v. McCulloch, 15 Mass. 227 (1818); Brown v. Beauchamp, 5 T.B.Mon. 413 (Ky.1827); Perkins, Criminal Law, 449—454 (1957); Note, 3 Race Rel. 1257—1259 (1958).
The earliest regulation of solicitation of legal business in England was aimed at the practice whereby holders of claims to land conveyed them to great feudal lords, who used their power or influence to harass the titleholders. See Winfield, The History of Conspiracy and Abuse of Legal Procedure, 152 (1921).
19
See Comment: A Critical Analysis of Rules Against Solicitation by Lawyers, 25 U. of Chi.L.Rev. 674 (1958). But truly nonpecuniary arrangements involving the solicitation of legal business have been frequently upheld. See In re Ades, 6 F.Supp. 467 (D.C.D.Md.1934) (lawyer's volunteering his services to a litigant, without being asked, held not unprofessional where 'important issues' were at stake); Gunnels v. Atlanta Bar Ass'n, 191 Ga. 366, 12 S.E.2d 602, 132 A.L.R. 1165 (1940) (arrangement whereby a local bar association publicly offered to represent, free of charge, persons victimized by usurers, upheld). Of particular pertinence to the instant case is Opinion 148, supra, note 13. In the 1930's, a National Lawyers Committee was formed under the auspices of the Liberty League. The Committee proposed (1) to prepare and disseminate through the public media of communications opinions on the constitutionality of state and federal legislation (it appears, particularly New Deal legislation); (2) to offer counsel, without fee or charge, to anyone financially unable to retain counsel who felt that such legislation was violating his constitutional rights. The ABA's Committee on Professional Ethics and Grievances upheld the arrangement. Opinion 148, Opinions of the Committee on Professional Ethics and Grievances, American Bar Association, 308 312 (1957); see Comment, 36 Col.L.Rev. 993.
Also, for example, the American Civil Liberties Union has for many years furnished counsel in many cases in many different parts of the country, without governmental interference. Although this intervention is mostly in the form of amicus curiae briefs, occasionally counsel employed by the Union appears directly on behalf of the litigant. See Comment, Private Attorneys-General: Group Action in the Fight for Civil Liberties, 58 Yale L.J. 574, 576 (1949); ACLU Report on Civil Liberties 1951—1953, pp. 9—10.
20
See Encouraging Divorce Litigation as Ground for Disbarment or Suspension, 9 A.L.R. 1500 (1920); 'Heir-hunting' as Ground for Disciplinary Action Against Attorney, 171 A.L.R. 351, 352—355 (1947).
21
See Backus v. Byron, 4 Mich. 535, 551—552 (1857).
22
See Matter of Clark, 184 N.Y. 222, 77 N.E. 1 (1906); Gammons v. Johnson, 76 Minn. 76, 78 N.W. 1035 (1899).
23
See Petition of Hubbard, 267 S.W.2d 743 (Ky.Ct.App.1954).
24
See 171 Va., p. xxix, following the American Bar Association's Canons of Professional Ethics, No. 28: 'It is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in rare cases where ties of blood, relationship or trust make it his duty to do so. * * * It is disreputable * * * to breed litigation by seeking out those with claims for personal injuries or those having any other grounds of action in order to secure them as clients, or to employ agents or runners for like purposes * * *.'
25
See People ex rel. Courtney v. Association of Real Estate Taxpayers, 354 Ill. 102, 187 N.E. 823 (1933) (Association to contest constitutionality of tax statutes in which parties and Association attorneys had large sums of money at stake); In the Matter of Maclub of America, Inc., 295 Mass. 45, 3 N.E.2d 272, 105 A.L.R. 1360 (1936) (motorists' association recommended and paid the fees of lawyers to prosecute or defend claims on behalf of motorist members); see also People ex rel. Chicago Bar Ass'n v. Chicago Motor Club, 362 Ill. 50, 199 N.E. 1 (1935). One aspect of the lay intermediary problem which involved the absence of evidence of palpable control or interference was an arrangement adopted by the Brotherhood of Railroad Trainmen in 1930 under which union members having claims under the Federal Employers' Liability Act were induced to retain lawyers selected by the Brotherhood and to make 25% contingent fee agreements with such lawyers. The arrangement was struck down by several state courts. To the courts which condemned the arrangement it appeared in practical effect to confer a monopoly of FELA legal business upon lawyers chosen by the Brotherhood. These courts also saw it as tending to empower the Brotherhood to exclude lawyers from participation in a lucrative practice, and to cause the loyalties of the union-recommended lawyers to be divided between the union and their clients. E.g., Hildebrand v. State Bar, 36 Cal.2d 504, 225 P.2d 508 (1950); Doughty v. Grills, 37 Tenn.App. 63, 260 S.W.2d 379 (1952); In re Brotherhood of Railroad Trainmen, 13 Ill.2d 391, 150 N.E.2d 163 (1958); see Student Symposium, 107 U. of Pa.L.Rev. 387 (1959); 11 Stan.L.Rev. 394 (1959). These decisions have been vigorously criticized. See Traynor, J., dissenting in Hildebrand, supra; Drinker, Legal Ethics, 161—167 (1953).
26
Compare Opinion 148, supra, n. 13, 19, at 312 (1957): 'The question presented, with its implications, involves problems of political, social and economic character that have long since assumed the proportions of national issues, on one side or the other which multitudes of patriotic citizens have aligned themselves. These issues transcend the range of professional ethics.'
27
Improper competition among lawyers is one of the important considerations relied upon to justify regulations against solicitation. See Note, Advertising, Solicitation and Legal Ethics, 7 Vand.L.Rev. 677, 684 (1954).
*
Ark.Stat.Ann.1947 (Cum.Supp.1961), §§ 41—703 to 41—713; Fla.Stat.Ann.1944 (Cum.Supp.1962), §§ 877,01, 877.02; Ga.Code Ann.1953 (Cum.Supp.1961), §§ 26—4701, 26—4703; Miss.Code Ann.1956, §§ 2049—01 to 2049—08; S.C.Code, 1952 (Cum.Supp.1960), §§ 56—147 to 56—147.6; Tenn.Code Ann.1956 (Cum.Supp.1962), §§ 39—3405 to 39 3410.
1
Konigsberg v. State Bar, 366 U.S. 36, 50—51, 81 S.Ct. 997, 1007, 6 L.Ed.2d 105; and see cases cited therein, including Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 82 L.Ed. 1049; Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Bates v. Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480; Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633.
2
See Thomas v. Collins, 323 U.S. 516, 544—545, 65 S.Ct. 315, 329, 89 L.Ed. 430 (concurring opinion); American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925; De Veau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109.
3
See the discussion in Hague v. C.I.O., 307 U.S. 496, 518, 523—525, 59 S.Ct. 954, 965, 967—968, 83 L.Ed. 1423 (opinion of Mr. Justice Stone).
4
See, e.g., the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 29 U.S.C. (Supp. III) §§ 401 et seq., 29 U.S.C.A. §§ 401 et seq.
5
See 4 Blackstone, Commentaries, 134—136. Even apart from any state statutory provisions, state judiciaries normally consider themselves free, in the exercise of their supervisory authority over the bar, to enforce these prohibitions derived from the common law. See, e.g., In re Co-operative Law Co., 198 N.Y. 479, 92 N.E. 15, 32 L.R.A.,N.S., 55; People ex rel. Courtney v. Association of Real Estate Tax-payers, 354 Ill. 102, 187 N.E. 823; In re Maclub of America, Inc., 295 Mass. 45, 3 N.E.2d 272, 105 A.L.R. 1360, and cases cited therein. Many States, however, also have statutes dealing with these matters. Some merely incorporate the common-law proscriptions of barratry and maintenance. E.g., Del.Code Ann., 1953, Tit. 11, § 371; Mo.Stat.Ann., § 557.470 (Vernon, 1953). Several specifically prohibit the solicitation of legal business for a lawyer by an agent or 'runner.' E.g., Conn.Gen.Stat., 1958, § 51—87; N.C.Gen.Stat., § 84—38 (1958 Repl.Vol.); Wis.Stat.Ann., § 256.295(1). About 25 States prohibit the authorized practice of law by corporations. American Bar Foundation, Unauthorized Practice Statute Book (1961), 78—90.
Virginia's concern with these problems dates back to the beginning of the Commonwealth. Act of December 8, 1792, 1 Va.Stat. 110 (Shepherd, 1835). Sections 54—74 and 54—78, which as amended are before us today, were originally enacted in 1932, Va.Acts 1932, cc. 129, 284, and the Virginia Supreme Court of Appeals adopted the American Bar Association Canons of Ethics in haec verba in 1938. Virginia Canons of Professional Ethics, 171 Va. xviii—xxxv. As in many other States, the judiciary of Virginia has declared its inherent authority to assure proper ethical deportment. See, e.g., Richmond Ass'n of Credit Men, Inc. v. Bar Ass'n, 167 Va. 327, 335—336, 189 S.E. 153, 157.
6
Virginia's policy of promoting aid to indigent suitors is of long standing, see 2 The Papers of Thomas Jefferson (Boyd ed. 1950), 628, and the decision of the state court in this case fully implements that policy.
7
The Court, p. 442, n. 25, ante, deals with the Real Estate Taxpayers case simply by referring to it as one in which the 'parties and Association attorneys had large sums of money at stake.' It is true that the attorneys there (as here) were paid for their services by the Association although we are not told the amount of the payment to any attorney. It is also true that the constitutional rights which the members were there seeking to assert through the nonprofit Association were property rights, having monetary value. But I fail to see how these factors can be deemed to create an 'element of pecuniary gain' which distinguishes the Real Estate Tax-payers case from the present one in any significant respect.
8
The activities of the Association in this Maclub case were more limited than those of the Association in the Real Estate Tax-payers case. The attorneys in Maclub were selected and retained directly by the members and bills were then submitted to and paid by the Association.
9
35 Stat. 95 (1908), as amended, 45 U.S.C. §§ 51—60, 45 U.S.C.A. §§ 51—60.
10
See, e.g., Weihofen, 'Practice of Law' by Non-Pecuniary Corporations: A Social Utility, 2 U. of Chi.L.Rev. 119; Drinker, Legal Ethics, 161—167; Traynor, J., dissenting in Hildebrand v. State Bar, supra.
11
In addition to the decisions discussed in the text, further evidence of the attitude of the bench and bar is found in a survey described in McCracken, Report on Observance by the Bar of Stated Professional Standards, 37 Va.L.Rev. 399, 400—401 (1951).
12
It is interesting to note the Court's reliance on Opinion 148, Opinions of the Committee on Professional Ethics and Grievances, American Bar Assn. This opinion, issued in 1935 at the height of the resentment in certain quarters against the New Deal, approved the practice of the National Lawyers Committee of the Liberty League in publicly offering free legal services (without compensation from any source) to anyone who was unable to afford to challenge the constitutionality of legislation which he believed was violating his rights. The opinion may well be debatable as a matter of interpretation of the Canons. But in any event I think it wholly untenable to suggest (as the Court does in its holding today) that a contrary opinion regarding paid legal services to nonindigent litigants would be unconstitutional.
13
As a corollary, attorneys are prohibited, by the law as construed, from accepting employment by petitioner in suits solicited by petitioner.
14
The full text of those portions of the state court opinion in which these phrases appear is quoted in footnote 9 of the majority opinion, p. 426.
15
Of course, if we refuse to sustain one part of a state statute, the state court on remand may decide that the remainder of the statute can no longer stand, but insofar as that conclusion is reached as a matter of state law, it is of no concern to us.
16
Cf. Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, in which the state law condemned the displaying of a red flag for any of three purposes and this Court sustained the validity of the law as to two of these purposes but struck it down for vagueness as to the third.
17
It has been suggested that the state law may contain an invidious discrimination because it treats those organizations that have a pecuniary interest in litigation (for example, an insurance company) differently from those that do not. But surely it cannot be said that this distinction, which is so closely related to traditional concepts of privity, lacks any rational basis. The importance of the existence of a pecuniary interest in determining the propriety of sponsoring litigation has long been recognized at common law, both in England, see Findon v. Parker, 11 M. & W. 675, 152 Eng.Rep. 976 (Exch.1843), and in the United States, see, e.g., Dorwin v. Smith, 35 Vt. 69; Vaughan v. Marable, 64 Ala. 60, 66—67; Smith v. Hartsell, 150 N.C. 71, 63 S.E. 172, 22 L.R.A.,N.S., 203. The distinction drawn by the Virginia law is not without parallel in the requirement that in the absence of a statute or rule a suit in a federal court attacking the validity of a law may be brought only by one who is in immediate danger of sustaining some direct and substantial injury as the result of its enforcement, and not by one who merely 'suffers in some indefinite way in common with people generally,' or even in common with members of the same race or class. Masschusetts v. Mellon, 262 U.S. 447, 487—488, 43 S.Ct. 597, 601, 67 L.Ed. 1078. See McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151, 162, 35 S.Ct. 69, 71, 59 L.Ed. 169. And of course the motives of the Virginia legislators in enacting Chapter 33 are beyond the purview of this Court's responsibilities. Fletcher v. Peck, 6 Cranch 87, 130, 3 L.Ed. 162; see Arizona v. California, 283 U.S. 423, 455, 51 S.Ct. 522, 526, 75 L.Ed. 1154; cf. Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019.
| 23
|
371 U.S. 531
83 S.Ct. 403
9 L.Ed.2d 486
Daniel Alton WILLIAMS, Petitioner,v.Eugene M. ZUCKERT, Secretary of the Air Force, et al.
No. 133.
Argued Dec. 13, 1962.
Decided Jan. 14, 1963.
David I. Shapiro, Washington, D.C., for petitioner.
Stephen J. Pollak, Washington, D.C., for respondents.
PER CURIAM.
1
Petitioner, a veteran with civil service status, was discharged from his civilian position with the United States Air Force for alleged misconduct. Subsequent to unsuccessful prosecution of appropriate administrative proceedings for review of his discharge, he brought suit in the District Court, which granted summary judgment to the respondent Air Force. The Court of Appeals affirmed. 111 U.S.App.D.C. 294, 296 F.2d 416. Certiorari was granted, 369 U.S. 884, 82 S.Ct. 1166, 8 L.Ed.2d 286, to consider whether, under the principles enunciated by this Court in Vitarelli v. Seaton, 359 U.S. 535, 544—545, 79 S.Ct. 968, 975, 3 L.Ed.2d 1012, petitioner's discharge was vitiated by an improper denial of a right to cross-examine at his hearing before the Civil Service Commission on appeal pursuant to § 14 of the Veterans' Preference Act of 19441 and the implementing regulations2 promulgated by the Commission.
2
Review of the record and argument of counsel disclose, however, that the Vitarelli issue is not adequately presented by this case; accordingly, we conclude that the writ of certiorari should be dismissed as improvidently granted.
3
Although amply notified in advance of the nature of the charges, the names of the witnesses whose affidavits had supplied the factual basis for his dismissal, and the date of the hearing, neither petitioner nor his counsel made any request, prior to the hearing, of the Air Force, of the Commission or its examiner, or of the witnesses themselves, for their appearance for cross-examination. The request for production of the witnesses, made only at the hearing by petitioner's counsel, was neither timely nor in conformity with the applicable regulations, which contemplate that the party desiring the presence of witnesses, either for direct examination or cross-examination, shall assume the initial burden of producing them.3
4
Had petitioner discharged this burden by timely attempt to obtain the attendance of the desired witnesses and through no fault of his own failed, then, to give meaning to the language contained in the regulations affording the 'opportunity * * * for the cross-examination of witnesses,'4 the Air Force would have been required, upon proper and timely request, to produce them, since they were readily available, and under the Air Force's control. Vitarelli v. Seaton, 359 U.S. 535, 544—545, 79 S.Ct. 968, 975, 3 L.Ed.2d 1012, would so require. Here, however, though petitioner seeks to rely upon the regulations, he has failed to bring himself within them.
5
Petitioner was accorded ample opportunity to present his own case and rebut the charges against him at several levels of the proceedings before the Air Force and the Civil Service Commission.
6
The writ of certiorari is dismissed.
7
Mr. Justice HARLAN concurs in the result.
8
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
9
After 16 years of faithful government service, petitioner has been branded with a stigma and discharged on the strength of three affidavits. Though he asked that these affiants be produced at his hearing, none was called to confront him. The Court says that petitioner's request came too late to conform with the applicable Regulation.1 Due process dictates a different result. We have heretofore analogized these administrative proceedings that cast the citizen into the outer darkness to proceedings that 'involve the imposition of criminal sanctions'; and we have looked to 'deeply rooted' principles of criminal law for guidance in construing regulations of this character. Peters v. Hobby, 349 U.S. 331, 344—345, 75 S.Ct. 790, 796, 99 L.Ed. 1129; Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377. By that analogy we should construe the present Regulation as being protective of the right of confrontation, not as providing a technical way in which the right is either saved or lost.
10
Confrontation and cross-examination are, as I understand the law, vital when one's employment rights are involved. See Greene v. McElroy, supra, 496, 79 S.Ct. 1413; Beard v. Stahr, 370 U.S. 41, 43, 82 S.Ct. 1105, 1106, 8 L.Ed.2d 321 (dissenting opinion). Petitioner is not merely being 'denied * * * the opportunity to work at one isolated and specific military installation.' Cafeteria & Restaurant Workers, etc. v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230. The stigma now attached to him will follow him, whatever employment he seeks. The requirements of due process provided by the Fifth Amendment should protect him against this harsh result by giving him the same right to confront his accusers as he would have in a criminal trial. See Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409;2 Kirby v. United States, 174 U.S. 47, 55, 19 S.Ct. 574, 577, 43 L.Ed. 890; Curtis v. Rives, 75 U.S.App.D.C. 66, 123 F.2d 936, 938. For this discharge will certainly haunt his later life as much as would a conviction for willful evasion of taxes.
11
A trial for misconduct involving charges of immorality, like one for disloyalty, is likely to be 'the most crucial event in the life of a public servant. If condemned, he is branded for life as a person unworthy of trust or confidence. To make that condemnation without meticulous regard for the decencies of a fair trial is abhorrent to fundamental justice.' Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 180, 71 S.Ct. 624, 653, 95 L.Ed. 817 (concurring opinion).
12
Petitioner has been deprived of his job and permanently stigmatized without being confronted by his accusers, even though he requested that they be called and even though they could easily have been produced. Petitioner does more than rely on the Regulation. He relies on the Fifth Amendment and the Sixth Amendment. To be sure, his request at the hearing was not phrased in constitutional terms. But administrative procedures are not games in which rights are won or lost on the turn of a phrase. In the District Court he claimed that this procedure 'was arbitrary and capricious and violative of the Fifth and Sixth Amendments of the Constitution.' That adequately raised the issue. See Terminiello v. Chicago, 337 U.S. 1, 6, 69 S.Ct. 894, 896, 93 L.Ed. 1131; cf. Williams v. Georgia, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161. It should be remembered that while a veteran's proceeding before the Civil Service Commission is called an 'appeal,' it is usually the first opportunity the employee has for a 'hearing' on the charges against him. In Vitarelli v. Seaton, 359 U.S. 535, 544—545, 79 S.Ct. 968, 975, 3 L.Ed.2d 1012, we construed a Regulation substantially similar to the present one as requiring the Interior Department to call as witnesses all 'non-confidential' informants. The Government advances no persuasive reason why that case does not control this one. At the hearing, when petitioner requested that the witnesses be called, his request was rejected because 'the Air Force Academy saw no need for their attendance.' But one who desires confrontation with the accuser has such a conflict of interest with his adversary that he, rather than his opponent, can better determine what would or might be useful to his defense.3 I would not say that this important constitutional right was lost on the technicality the Court now embraces.
13
We should not saddle these administrative proceedings with strict formalities concerning the manner in which exceptions or objections are made. They have no place in criminal proceedings, as Rule 51 of the Federal Rules, 18 U.S.C.A.4 makes clear; and it is unhealthy to let them take root in administrative hearings where human rights are involved that are as precious to 'liberty,' within the meaning of the Fifth Amendment, as a person's right not to be fined or imprisoned unless prescribed procedures are followed.
14
The judgment below should be reversed and the case remanded for a full hearing.
1
58 Stat. 390, as amended, 5 U.S.C. § 863, 5 U.S.C.A. § 863.
2
5 CFR, Part 22.
3
5 CFR § 22.607, titled 'Appearance of witnesses,' provides:
'The Commission is not authorized to subpoena witnesses. The employee and his designated representative, and the employing agency, must make their own arrangements for the appearance of witnesses.'
4
5 CFR § 22.603 provides:
'Opportunity will be afforded for the introduction of evidence (including testimony and statements by the employee and his designated representative and witnesses and by representatives of the agency and its witnesses) and for the cross-examination of witnesses.'
1
See 5 CFR, pt. 22, §§ 22.603, 22.607.
2
'The primary object of the constitutional provision * * * (is) to prevent depositions or ex parte affidavits * * * being used * * * in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.' 156 U.S., at 242—243, 15 S.Ct., at 339.
3
A related problem revealing the manner in which business firms are barred from participating directly or indirectly in government contracts without notice, opportunity to be heard, and confrontation is discussed in the Committee Report on Debarment and Suspension of Persons from Government Contracting and Federally Assisted Construction Work prepared for the Administrative Conference of the United States by the Committee on Adjudication of Claims, October 1, 1962.
4
Rule 51 provides:
'Exceptions to rulings or orders of the court are unnecessary and for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and the grounds therefor; but if a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice him.'
| 34
|
371 U.S. 537
83 S.Ct. 378
9 L.Ed.2d 492
R. A. RIDDELL, District Director of Internal Revenuev.MONOLITH PORTLAND CEMENT CO.
No. 528.
Decided Jan. 14, 1963.
Rehearing Denied Feb. 25, 1963.
See 372 U.S. 932, 83 S.Ct. 871.
PER CURIAM.
1
The taxpayer respondent during the taxable year 1952 mined limestone from its own quarry, crushed it, transported the crushed product two miles to its plant, and there, through the addition of other materials and further processing, manufactured the limestone into cement which it sold. It paid taxes for the year mentioned, based on a depletion allowance computed in accordance with Treasury Regulations. Thereafter taxpayer filed claim for refund and now prosecutes this suit on the ground that the depletion allowance should not have been based upon constructive income at the crushed limestone stage, but rather upon gross receipts from sales of the mining product after its 'treatment processes' were completed and it became finished cement.1 The District Court found that the taxpayer's depletion base was the income from the sale of finished cement, and the Court of Appeals affirmed. 301 F.2d 488.
2
Section 23(m) of the Internal Revenue Code of 1939, 53 Stat. 14, 26 U.S.C.A. § 23(m), provided that in computing taxable net income certain percentage deductions from gross income should be allowed for depletion of mines. The Congress further provided, § 114(b)(4) of the Code, as amended, c. 63, § 124(c) (B), 58 Stat. 45 (1944), that included within the term 'mining' were 'the ordinary treatment processes normally applied by mine owners or operators in order to obtain the commercially marketable mineral product * * *.'
3
In United States v. Cannelton Sewer Pipe Co., 364 U.S. 76, 80 S.Ct. 1581, 4 L.Ed.2d 1581 (1960), we considered at some length the application of this term to the mining industry and held that the statutory percentage depletion allowance on the gross income of an integrated mining operator should be cut off at the point where the mineral first became suitable for industrial use or consumption. After careful study of the record here we believe that this case is controlled by Cannelton. We concluded there 'that Congress intended to grant miners a depletion allowance based on the constructive income from the raw mineral product, if marketable in that form, and not on the value of the finished articles.' 364 U.S., at 86, 80 S.Ct., at 1586. We found that 'the cut-off point where 'gross income from mining' stopped has been the same' ever since the first depletion statute, namely, 'where the ordinary miner shipped the product of his mine.' Id., at 87, 80 S.Ct., at 1587. It therefore appears from this record that the 'product' with which the Code deals here is the taxpayer's product at the point when 'mining' terminated, i.e., when it reached the crushed limestone stage.2 This results in limiting the taxpayer's basis for depletion to its constructive income from crushed limestone, rather than from finished cement.
4
The petition for certiorari is therefore granted, the judgment reversed, and the case is remanded for disposition in accordance with this opinion. It is so ordered.
5
Reversed and remanded.
6
Mr. Justice WHITE took no part in the consideration or decision of this case.
1
There is no question involved here under the Act of September 14, 1960, 74 Stat. 1017, since taxpayer elected to pursue his claim for depletion on the finished cement product rather than accept as a correct cut-off point for depletion the prekiln feed stage of manufacture as permitted by that Act.
2
In this connection crushed limestone was not only 'marketable in that form' but, according to the Reprint from Bureau of Mines Minerals Yearbook, 1952, Stone, p. 26, an exhibit in the record, it was actually sold in California in 1952 in an amount exceeding 1,500,000 tons. Sales in the United States for that year exceeded 216,000,000 tons. Both of these figures exclude the tonnage used in the manufacture of cement. A stipulation in the record shows that limestone sold or used for all purposes totaled almost 300,000,000 tons in 1952.
| 1112
|
371 U.S. 505
83 S.Ct. 358
9 L.Ed.2d 466
FEDERAL TRADE COMMISSION, Petitioner,v.SUN OIL COMPANY.
No. 56.
Argued Nov. 15, 1962.
Decided Jan. 14, 1963.
Robert B. Hummel, Cleveland, Ohio, for petitioner.
Leonard J. Emmerglick, Washington, D.C., for respondent.
Mr. Justice GOLDBERG delivered the opinion of the Court.
1
This case grows out of a gasoline 'price war' in Jacksonville, Florida. The question presented is whether a refiner-supplier of gasoline charged with the granting of a price discrimination in violation of § 2(a) of the Clayton Act,1 as amended by the Robinson-Patman Act, has available to it, under § 2(b) of the Act,2 the defense that the discriminatory lower price was given 'in good faith to meet an equally low price of a competitor,' when the gasoline refiner-supplier shows that it gave the discriminatory price to only one of a number of its independently owned retail station customers in a particular region in order to enable that station to meet price reductions of a competing service station owned and operated by a retail chain selling a different brand of gasoline.
2
The Federal Trade Commission held the § 2(b) defense to be unavailable under such circumstances. 55 F.T.C. 955. The Court of Appeals for the Fifth Circuit reversed, 294 F.2d 465, and this Court granted certiorari, 368 U.S. 984, 82 S.Ct. 602, 7 L.Ed.2d 522, to review this difficult and important question concerning the scope and application of the § 2(b) defense.
I.
3
The relevant facts are not seriously disputed.
4
Respondent, Sun Oil Company ('Sun'), is a New Jersey corporation and a major integrated refiner and distributor of petroleum products, including gasoline. At the time of the alleged violation here in issue, Sun marketed in 18 States a single grade of gasoline sold under the tradename 'Sunoco.' Sun does not ordinarily sell directly to the motorist, but usually distributes its gasoline and other related products to the consuming public through retail service station operators who lease their stations from it.3
5
In 1955, Gilbert McLean was the lessee and operator of a Sunoco gas station located on the corner of 19th and Pearl Streets in Jacksonville, Florida. He was one of Sun's 38 retail dealers in the Jacksonville area, which Sun divided into three sales territories; McLean operated in a sales territory composed of eight Sun stations, one of which was only about 11 blocks away from McLean. Like almost all retail sellers of branded gasoline, McLean bought and sold only the petroleum products of a single supplier, here Sun. Notwithstanding, he was, as found below, and conceded here, an independent contractor and bore the direct and immediate risk of profitability of the station.
6
Commencing operation of the station in February 1955, McLean bought gasoline from Sun at 24.1 cents per gallon and resold it at 28.9 cents per gallon to the motoring public; the other Sun dealers in Jacksonville purchased from Sun at the same price and obtained the same 4.8-cent-per-gallon margin of gross profit
7
In June 1955, about four months after McLean began business, the Super Test Oil Company, which operated about 65 retail service stations, opened a Super Test station diagonally across the street from McLean and began selling its 'regular' grade of gasoline at 26.9 cents per gallon. It appears that this was Super Test's first and only station in Jacksonville. The record does not disclose that Super Test was anything more than a retail dealer; nor does it indicate the source from which Super Test obtained its gasoline.
8
The two-cent-per-gallon difference in price between McLean and Super Test represented the 'normal' price differential then prevailing in the area between 'major' and 'non-major' brands of gasoline. This 'normal' differential represents the price spread which can obtain between the two types of gasoline without major competitive repercussions. Thus, McLean was apparently not adversely affected to any susbtantial degree by this first-posted price of Super Test.
9
Thereafter, however, Super Test sporadically reduced its price at its Jacksonville station, usually on weekends. Some of the price cuts were advertised in the local newspaper and all were posted on curbside signs. For example, on August 27, 1955, the Super Test station reduced its price to 21.9 cents a gallon and on the following day to 20.9 cents per gallon. While these lower prices were normally short-lived, at least one was maintained for a week. On the occasion of each price reduction by the Super Test station, McLean's sales of Sunoco declined substantially.
10
When Super Test began lowering its price below the normal two-cent differential, McLean, who was maintaining his price of 28.9 cents per gallon, from time to time protested to Sun and sought relief in the form of a price concession from it. For about four months, Sun took no action, but in December 1955, after further periodic price reductions by Super Test and a complaint by McLean that he would be forced out of business absent help from Sun, Sun told McLean that it would come to his aid in the event of further price cuts. When, on December 27, 1955, Super Test dropped its price for 'regular' gasoline to 24.9 cents per gallon, McLean told Sun that he would have to post a price of 25.9 cents in order to meet the competition. On the same day, Sun gave McLean a prive allowance or discount of 1.7 cents per gallon. McLean accordingly dropped his retail price three cents per gallon, from 28.9 cents to 25.9 cents, thus reducing his gross margin from the prior 4.8 cents per gallon to 3.5 cents per gallon, the amount regarded by Sun as the minimum gross margin which should be earned by its retail dealers. In lowering his price to within one cent of Super Test's, McLean absorbed 1.3 cents and Sun 1.7 cents of the per gallon price reduction. No corresponding price reduction was given by Sun to any of its other dealers in the area.
11
Within a few days, Super Test further lowered its price to 23.9 cents per gallon. No further price cuts were made by either McLean or Super Test until mid-February 1956, when Super Test cut its price for 'regular' gasoline to 22.9 cents per gallon. At about the same time, a general price war developed in the Jacksonville area and several other suppliers made price reductions. Sun then dropped its price equally to all of its dealers in the area. Notwithstanding a remarkable increase in his gallon sales after the December 27, 1955, price allowance to him and the reduction in his own resale price, McLean went out of business on February 18, 1956, two days after the outbreak of the general price war.4 The exact reason for the failure of McLean's business does not appear; it is not clear that it was because of the price war.
12
During the period between the December 27, 1955, price reduction by McLean and the February 1956 date on which Sun extended its discount to all of its area dealers, a number of Sun dealers located at distances varying from less than a mile (about 11 blocks) to about three and one-half miles from McLean's station suffered substantial declines in sales of Sunoco gasoline. Some of these Sun dealers who testified below said that they saw former customers of theirs buying gas from McLean and two declared that their customers had told them that they switched to McLean because of his lower price. Some of these dealers complained to Sun about the favored treatment accorded McLean and, prior to the February general price reductions, unsuccessfully sought compensating discounts from Sun for themselves. Though three of these other Sun dealers ultimately went out of business, there is no indication that they did so as a result of the December price reduction to McLean.
13
In September 1956 the Federal Trade Commission filed a complaint against Sun charging it with illegal price discrimination in violation of § 2(a) of the Clayton Act, as amended, and with entry into a price-fixing agreement with McLean in violation of § 5 of the Federal Trade Commission Act.5 The Commission adopted the findings, conclusions and proposed order of the trial examiner and affirmed his initial determination that Sun had violated the provisions of both Acts, as charged. The Commission also found that there had been actual competitive injury to the nonfavored Sun dealers by virtue of Sun's discriminatory December 27 price allowance to McLean and rejected Sun's asserted defense under § 2(b) of the Clayton Act because Sun was not meeting its own competition, that is a price cut by another wholesale seller, and because the allowance to McLean 'was not made to meet a lower price made to (McLean) * * * by another supplier' but 'to meet the competition of the Super-Test station across the street.'
14
Considering Super Test to be an integrated supplier-retailer of gasoline, the Court of Appeals reversed, reasoning: first, that McLean was but a 'conduit' for the marketing of Sun's products and therefore Sun, as a practical matter, was really competing with Super Test for sales of its gasoline; and second, that the price competition of Super Test was as much a threat to the continued existence of McLean as a customer of Sun as a direct competing lower offer to McLean would have been and it was not realistic to expect such an offer to be made to McLean. The Court of Appeals concluded that Sun was entitled, under the circumstances, to 'assert the (§ 2(b)) defense of meeting competition in good faith.' 294 F.2d, at 481. The Court of Appeals did not overturn the Commission's finding that Sun's discriminatory price concession to McLean had resulted in competitive injury to the other Sun dealers in McLean's area.
15
The Commission potitioned for a writ of certiorari to review the Court of Appeals holding that the § 2(b), defense was available to Sun under the circumstances of this record; no review was sought of the Court of Appeals reversal of the Commission's findings that Sun had entered a price-fixing agreement illegal under § 5 of the Federal Trade Commission Act and that Sun's purpose in granting the lower price to McLean was to undercut, not meet, the price of Super Test.
16
The only issue thus before the Court is whether Sun is here entitled to avail itself of the § 2(b) defense that its December 27 'lower price' to McLean was extended 'in good faith to meet an equally low price of a competitor.' If the defense is unavailable, there is no issue as to violation of § 2(a) of the Clayton Act; respondent Sun does not dispute that the requisite elements of a price discrimination otherwise illegal under § 2(a) have been shown.
17
As indicated, the Court of Appeals assumed, as have a number of commentators on the case,6 that Super Test was an integrated supplier-retailer of gasoline. The record does not support this conclusion, however, and therefore, as the case comes to us, availability of the § 2(b) defense to Sun is determined on the assumption that Super Test was engaged solely in retail operations; similarly, since there is in the record no evidence as to Super Test's source of supply or the price at which it bought gasoline, we assume that Super Test was not the beneficiary of any enabling price cut from its own supplier.7
18
The precise question presented has not heretofore been resolved by this Court. The only reported judicial decision (other than that of the Court of Appeals in this case) considering the issue is a District Court opinion supporting the view of the Commission. Enterprise Industries, Inc., v. Texas Co., D.C., 136 F.Supp. 420, reversed on other grounds, 2 Cir., 240 F.2d 457, cert. denied, 353 U.S. 965, 77 S.Ct. 1049, 1 L.Ed.2d 914. The Commission itself has in the past taken a view contrary to the one urged here, but since 1956 has been maintaining its present position.
II.
19
The context in which the conflicting contentions of both the Commission and respondent Sun must first be considered is that framed by the language of the statute itself. Section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, makes it unlawful for 'any person * * * to discriminate in price between different purchasers of commodities of like grade and quality * * * where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.'8 Of course applicability of the statute depends upon the requisite involvement in interstate commerce. As has been noted, there is no challenge here to the finding that Sun's actions were within the prohibitions of § 2(a); the discrimination was found to have the statutorily requisite anticompetitive effects.
20
Section 2(b) of the Act contains a proviso permitting a seller to rebut a prima facie case of discrimination in violation of § 2(a) by 'showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor.'9 This proviso is usually referred to as the 'good faith meeting competition' defense. The seller has the burden of bringing himself within the exculpating provision of § 2(b), which has been interpreted to afford an absolute defense to a charge of violating § 2(a), notwithstanding the existence of the statutorily prohibited anticompetitive effect, Standard Oil Co. v. Federal Trade Comm., 340 U.S. 231, 71 S.Ct. 240, 95 L.Ed. 239.
21
Reading the words to have 'their normal and customary meaning,' Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 388, 71 S.Ct. 745, 747, 95 L.Ed. 1035, the § 2(b) phrase 'equally low price of a competitor' would seem to refer to the price of a competitor of the seller who grants, and not of the buyer who receives, the discriminatory price cut. (In this case, this would mean a competitor of Sun, the refinersupplier, and not a competitor of McLean, the retail dealer.) Were something more intended by Congress, we would have expected a more explicit recitation as, for example, is the case in § 2(a) in which the intent to give broader scope was expressly effected by the prohibition of price discriminations which inter alia, adversely affected competition not only with the seller (in this case Sun) who grants the favored price, but with the knowing recipient thereof (in this case McLean) and 'with customers of either of them.' Thus, since Congress expressly demonstrated in the immediately preceding provision of the Act that it knew how to expand the applicable concept of competition beyond the sole level of the seller granting the discriminatory price, it is reasonable to conclude that like clarity of expression would be present in § 2(b) if the defense available thereunder were similarly intended to be broadly read to encompass, as is urged, the meeting of lower prices set not only by the offending seller's competitor, but also by the purchaser's competitor. There is no reason appearing on the face of the statute to assume that Congress intended to invoke by omission in § 2(b) the same broad meaning of competition or competitor which it explicitly provided by inclusion in § 2(a); the reasonable inference is quite the contrary.
22
The fact that § 2(b) permits a seller to meet the competitor's 'equally low' price is similarly suggestive of an interpretation which limits application of the proviso to situations in which the seller's reduction in price is made in response to a price cut by its own competitor rather than by a competitor of its customer. Linguistically and practically, it makes but little sense to talk, for example, of a wholesaler's meeting of the 'equally low' price of one of his purchaser's retail competitors. The reduced retail price of the purchaser's competitor will almost invariably be higher than the supplier's wholesale price; even in those instances in which this is not so, it cannot seriously be suggested that under § 2(b) the wholesaler is entitled to reduce discriminatorily his wholesale price to the lower retail level. Such a result is not only economically unrealistic, but strains normal language use. Moreover, it is difficult to see what appropriately cognizable competitive interest Congress might be thought to have been serving in enacting a statute productive of such an anomalous result.
23
Recognizing the incongruity of such an interpretation, and having no need to go quite so far, respondent argues merely that as a wholesaler it is protected under § 2(b) when it lowers its own price sufficiently to allow its retail dealer, in turn, to reduce his retail price to meet a competitive retail offer. But this too extends the statute beyond its immediately apparent meaning; the language of the section contains no implication that it comprehends a two-stage price reduction effected by two separate economic units at different levels of distribution as the measure of setting the 'equally low' price.10
24
Enough has been said to demonstrate that a reading in context of the § 2(b) proviso to give its words their normal and usual meaning strongly suggests, though it does not inexorably compel, an interpretation of the defense contrary to that urged by respondent. Moreover, the narrower interpretation of the statute is consonant with overall rationality and broader statutory consistency and purpose, and effects a result compatible with legislative history and economic reality. We now turn to consideration of such other factors.
III.
25
Prior to passage of the 1936 Robinson-Patman Act, § 2 of the Clayton Act prohibited price discriminations and allowed as one defense a demonstration that the price concession was 'made in good faith to meet competition.' 38 Stat. 730. Because of Congress' growing concern that this exemption was overly broad and did not sufficiently inhibit business concentration thought to be fostered in substantial part by unwarranted price favoritism shown by suppliers to large buyers, particularly large retail chains then threatening smaller local merchants, the Robinson-Patman Act was passed to strengthen the Clayton Act prohibitions on price discrimination. See, e.g., H.R.Rep.No.2287, 74th Cong., 2d Sess. 3 6; Rowe, Price Discrimination Under the Robinson-Patman Act (1962), pp. 3—24. Not only was § 2(a) amended to eliminate certain asserted weaknesses, but the § 2(b) proviso legitimatizing discriminations made to 'meet competition' was limited to protect only discriminations made 'to meet an equally low price of a competitor.'
26
The House Committee, in its report on the bill, said of the newly worded § 2(b) proviso:
27
'This proviso represents a contraction of an exemption now contained in section 2 of the Clayton Act which permits discriminations without limit where made in good faith to meet competition. It should be noted that while the seller is permitted to meet local competition, it does not permit him to cut local prices until his competitor has first offered lower prices, and then he can go no further than to meet those prices. If he goes further, he must do so likewise with all his other customers, or make himself liable to all of the penalties of the act, including treble damages. In other words, the proviso permits the seller to meet the price actually previously offered by a local competitor. It permits him to go no further.' H.R.Rep.No. 2287, 74th Cong., 2d Sess. 16. (Emphasis supplied.)
28
While such language in the congressional materials suggests the reading limiting § 2(b) to the meeting of the seller's own competition, it is, of course, not conclusive since not directed to the specific problem here presented. Neither the briefs nor the arguments of the parties nor of the amici have pointed to any more explicit congressional guide to resolution of the precise question before us. No more can be said than that there appears to be nothing in the legislative history to directly contradict what we deem to be the ordinary meaning of the statutory language or to indicate that a different reading was specifically intended; what few guides there are support the interpretation we here adopt.
IV.
29
We thus turn to the fundamental purposes of the Robinson-Patman Act and the antitrust laws in general for guidance more impressive than that found in the recited legislative history.
30
Relying on the general purpose of the Act to protect the small independent businessman, respondent Sun argues that the statutory policy supports its pricecutting action, even though discriminatory, because that action was designed to protect and preserve a small independent businessman, McLean. It is asserted that the limited resources available to McLean bar his survival in a gasoline price war of any duration. McLean's small margin of profit, his relative inability to lower his retail price because a direct function of the price he pays his supplier, here Sun, and other factors make his continued independent existence in a present-day price war wholly dependent upon receipt of aid—in the form of a price reduction—from his supplier. Whatever their accuracy, these assertions ignore the other station operators—the nearby Sun dealers competing with McLean—who were also vitally interested in the particular competitive struggle to which Sun was moved to respond by making price concessions only to McLean. These dealers were hurt, it was found below, by Sun's discriminatory price to McLean and this finding is not challenged here by Sun. Their sales declined appreciably after the December 27, 1955, cut in price by Sun to McLean, and while perhaps not all of the attrition in sales was attributable to the fact that McLean was thereby enabled to drop his price, certain of the dealers were able to identify customers who, apparently retaining a preference for Sun products, shifted their patronage from the competing Sun stations to McLean.
31
It is asserted, in response, that the harm to competitors of McLean must be suffered as a consequence of the very competition which is the pervasive essence of our overall antitrust policies. As has been said in another context:
32
'In any competitive economy we cannot avoid injury to some of the competitors. The law does not, and under the free enterprise system it cannot, guarantee businessmen against loss. That businessmen lose money or even go bankrupt does not necessarily mean that competition has been injured.' H.R.Rep.No.1422, 81st Cong., 1st Sess. 5—6.
33
But the mere recognition that harm sometimes may be a by-product of competition is the beginning, not the end, of analysis. Whatever the result here, someone may be hurt—to allow Sun to pursue its discriminatory pricing policy will, as has been indicated, harm other Sun dealers who compete with McLean; to prevent Sun from making discriminatory price allowances, it is asserted, will injure the McLeans of the competitive world. The alternative competitive injury to McLean, however, is not inevitable; Sun may have available to it courses of action which would afford protection to both McLean and the other Sun stations. See pp. 526—527, infra. Even if this were not so, we are not free on the basis of our own economic predilections to make the choice between harm to McLean, on the one hand, and to the other Sun operators, on the other, or to balance the comparative degree of individual injury in each instance; that choice is foreclosed by the determination in the statute itself in favor of equality of treatment. It is the very operators of the other Sun stations which compete with McLean who are the direct objects of protection under the Robinson-Patman Act. The basic purpose of the Act was to insure that such purchasers from a single supplier, Sun, would not be injured by that supplier's discriminatory practices. To be sure, the s 2(b) exception is operative notwithstanding the incidence of damage to nonfavored purchasers, Standard Oil Co. v. Federal Trade Comm., supra, but, given the basic statutory purpose to prevent precisely such damage, the defense does not become applicable simply because the favored purchaser would be hurt absent the discriminatory price cut to him. If a threat of harm to the favored customer was itself enough, under § 2(b), to immunize a discrimination, the § 2(b) exception could largely nullify the prohibitions of § 2(a).
34
Similarly, the mere fact that McLean was a small retailer does not make the good faith defense applicable. While, as noted, the immediate and generating cause of the Robinson-Patman amendments may have been a congressional reaction to what were believed to be predatory uses of mass purchasing power by chain stores, neither the scope nor the intent of the statute was limited to that precise situation or set of circumstances. Congress sought generally to obviate price discrimination practices threatening independent merchants and businessmen, presumably from whatever source. The House Committee declared its 'guiding ideal' in proposing the amendments to be 'the preservation of equality of opportunity as far as possible to all who are usefully employed in the service of distribution and production * * *.' H.R.Rep.No.2287, 74th Cong., 2d Sess. 6. In short, Congress intended to assure, to the extent reasonably practicable, that businessmen at the same functional level would start on equal competitive footing so far as price is concerned.
35
An example will be helpful. Assume that a single store in a large retail grocery chain reduces, without the benefit of any corresponding reduction in price from its supplier, the price of a single and widely advertised staple food product. Is it to be supposed that the Congress which passed the Act would view this reduction as justifying, under § 2(b), another supplier's cut in his wholesale price of the same product to a large competing retail chain outlet, without that supplier's offering the same price concession to other smaller retail outlets which compete with both chain stores? Even assuming that the second chain did not predatorily seek the price concession from its own supplier, there can be but one answer to this question under the statute since allowance of such a discrimination would nullify the very equality which is sought to be protected by the Act. To allow the § 2(b) defense to be so asserted would be directly contrary to the intent of Congress.
36
Stripped of the initial appeal arising from the fact that Sun was attempting to preserve, not a retail chain, but rather its own small dealer, McLean, the instant facts present, we think, no crucial variation from the example given.
37
The argument that if the problem actually posed by 'small' McLean competing with 'big' Super Test were put to Congress it would approve the course followed by Sun is not persuasive. Even if such congressional approval might be assumed—a perhaps unwarranted conclusion11—it is clear that Congress did not write or pass a statute which allowed or provided for distinction between the posited grocery product case and the one now before us. To make the incidence of the § 2(b) defense turn on the relative competitive strength of the particular favored customer vis-a -vis his price-cutting competitor is not only inapposite but without statutory warrant. The Act is of general applicability and prohibits discriminations generally, subject only to defenses not based upon size. Competitive ability or business size may properly be a measure of antitrust application in other contexts, but there is no basis for reading such a standard into § 2(b) of this statute.
38
Limiting invocation of the § 2(b) defense to those situations in which the discriminatory price cut is made in response to a lower price of the seller's own competitor comports, we think, not only with the objectives of the Robinson-Patman Act but with the general antitrust policy of preserving the benefits of competition.
39
To allow a supplier to intervene and grant discriminatory price concessions designed to enable its customer to meet the lower price of a retail competitor who is unaided by his supplier would discourage rather than promote competition. So long as the price cutter does not receive a price 'break' from his own supplier, his lawful reductions in price are presumably a function of his own superior merit and efficiency. To permit a competitor's supplier to bring his often superior economic power to bear narrowly and discriminatorily to deprive the otherwise resourceful retailer of the very fruits of his efficiency and convert the normal competitive struggle between retailers into an unequal contest between one retailer and the combination of another retailer and his supplier is hardly an element of reasonable and fair competition. We see no justification for such a result in § 2(b). Restriction of the defense to those situations in which a supplier responds to the price concessions of its own competitor—another supplier—maintains general competitive equities. Fairness demands neither more nor less. We discern in § 2 neither a purpose to insulate retailers from lawful and normal competitive pressures generated by other retailers, nor an intent to authorize suppliers, in response to such pressures created solely at the retail level, to protect, discriminatorily, sales to one customer at the expense of other customers.
40
It is argued, however, that to deny Sun the right to reduce its prices as it did here is to impair price flexibility and promote price rigidity, the very antithesis of competition. We think that the contrary is the case. While allowance of the discriminatory price cut here may produce localized and temporary flexibility, it inevitably encourages maintenance of the long-range and generalized price rigidity which the discrimination in fact protects. So long as the wholesaler can meet challenges to his pricing structure by wholly local and individualized responses, it has no incentive to alter its overall pricing policy. Moreover, as indicated, the large supplier's ability to 'spot price' will discourage the enterprising and resourceful retailer from seeking to initiate price reductions on his own. Such reasoning may be particularly applicable in the oligopolistic environment of the oil industry.12
41
We see no reason to permit Sun discriminatorily to pit its greater strength at the supplier level against Super Test, which, so far as appears from the record, is able to sell its gasoline at a lower price simply because it is a more efficient merchandiser, particularly when Super Test's challenge as an 'independent' may be the only meaningful source of price competition offered the 'major' oil companies, of which Sun is one.
V.
42
Respondent Sun makes several other arguments in support of its position. First, it asserts that the interpretation of § 2(b) urged here by the Commission completely ignores the competitive realities of the gasoline vending business. In essence, Sun argues that, practically viewed, Super Test was not merely a competitor of McLean, but also a competitor of Sun. Oil companies, whether major or minor, integrated or nonintegrated, it is asserted, compete not at the wholesale or jobber level, but almost exclusively at the retail level.13 All competition, Sun says, is directed to sales of the final product—gasoline—to the motoring consumer, and anything that threatens to reduce the sales of a branded gasoline at the retailer's pump is a threat to the supplier whose business is a direct function of its stations' marketing success or failure. It is contended that the individual station is but a 'conduit' for the supplier and that Sun is thus in competition with Super Test, considered even only as a retailer.14
43
In a very real sense, however, every retailer is but a 'conduit' for the goods which it sells and every supplier could, in the same sense, be considered a competitor of retailers selling competing goods. We are sure Congress had no such broad conception of competition in mind when it established the § 2(b) defense and, certainly, it intended no special exception for the petroleum industry. It is difficult to perceive convincing reasons rationally confining the thrust of respondent's argument to an area narrow enough to preclude effective emasculation of the prohibitions on discrimination contained in § 2(a). Only differences of degree distinguish the situation of the gasoline station operator from that of many other retail outlets, and in numerous instances the distinction, if any, is slight. The 'conduit' theory contains no inherent limitations and its acceptance would so expand the § 2(b) defense as to effect a return to the broader 'meeting competition' provision of the Clayton Act, which the Robinson-Patman Act amendments superseded.
44
Sun also argues that the effect of a decision holding the § 2(b) defense unavailable to it in these circumstances will be to prolong and aggravate the destructive price wars which periodically reoccur in the marketing of gasoline. Whether relevant or not, this contention is best put wholly to one side. Such price warfare appears to be caused by a number of basic factors, not the least of which are industry overcapacity and the propensity of some major refiners to engage in so-called 'dual marketing' under which, in order to increase their overall sales and utilize idle facilities, they not only sell branded gasoline to their own dealers but also sell unbranded gasoline to independent retailers or jobbers, often at a lower price. See S.Rep.No.2810, 84th Cong., 2d Sess. 16—19. Whatever we do here can neither eliminate nor mitigate the major economic forces which are productive of these price wars. Moreover, it is wholly unclear whether allowance of the price discrimination prolongs or shortens the war's duration. (It might be noted that the war was not narrowly contained by Sun's actions here.) There are logical arguments on both sides of the question and none are wholly persuasive. Extensive discussion of the various reasoning would serve no useful purpose. As one study concludes after canvassing the contentions: 'one simply cannot be certain.' De Chazeau and Kahn, Integration and Competition in the Petroleum Industry (1959), 481; and see generally, id., pp. 477 483; S.Rep.No.2810, 84th Cong., 2d Sess. 19—23.
45
Respondent urges that the interpretation of § 2(b) which we have adopted unfairly forces its small retailer, McLean, to bear alone what to him is the economically insufferable burden of the entire retail price reduction. This, however, erroneously poses the choice as merely twofold—aid to the retailer by an unlawfully discriminatory price reduction, or no aid at all—and misconceives the availability of other alternatives.
46
Preliminarily, it must be recognized that we are not dealing here with the situation in which one supplier reduces its prices and another supplier thereupon reduces its prices to prevent its customer from shifting his business to the competing supplier; this is the more normal circumstance and the § 2(b) defense is usually available.
47
Even in the limited situation with which we here deal—in which the competing retailer cuts his price without his supplier's aid—Sun, as a wholesaler, may reduce its price uniformly and non-discriminatorily to competing purchasers from it so as to preclude the probable incidence of the substantial anticompetitive effects upon which violation of § 2(a) is here grounded. Sun recognizes, as it must, that it has this choice, but argues that in order to eliminate the possibility of having even a broad price cut deemed illegal under § 2(a), it would of necessity have to extend the benefits of the concessions to all of its dealers in an unwarrantedly wide geographic area, perhaps nationwide. This, it asserts, is required because whatever line it seeks to draw, there will inevitably be some dealer who because of geographic proximity will be deemed to have been illegally discriminated against. The mere existence of a competitive continuum, however, does not require that market limits be indefinitely extended with absurd results in the form of unwarranted nationwide or otherwise overly broad measures of competitive impact. In appraising the effects of any price cut or the corresponding response to it, both the Federal Trade Commission and the courts must make realistic appraisals of relevant competitive facts. Invocation of mechanical word formulas cannot be made to substitute for adequate probative analysis.15 In cases in which the economic facts so indicate, carefully drawn area submarkets may be the proper measure of competitive impact among purchasers.16
48
Alternatively, since Sunoco stations, though largely independently owned, operate under leasing, merchandising, advertising and other policies set by Sun, other opportunities are available to Sun to strengthen its dealers in competing with other stations.
49
Rejecting these and other actions17 as reasonable business alternatives,18 Sun asserts that the only course realistically open to it is to change the nature of its distribution system by effecting some sort of further forward vertical integration, all at the expense and to the detriment of the very independent merchants—the individual station operators—whom the Robinson-Patman Act was intended to preserve and protect. It may be that active pursuit of such a course by Sun, involving the elimination of independent retail dealers, would be a greater evil than allowance of discriminations such as are here involved; such a broad determination of economic policy, however, is not for us to make here. We are not interpreting a broadly phrased constitutional provision, but rather a narrowly worded statutory enactment with specific prohibitions and specific exceptions. Compare Standard Oil Co. of Cal. and Standard Stations v. United States, 337 U.S. 293, 311—312, 69 S.Ct. 1051, 1060, 1061, 93 L.Ed. 1371.
50
In any event, we see no evidence that such forward integration is inevitable or required as the only feasible alternative. It has not yet occurred and suppliers such as Sun have discerned sound and apparently persuasive reasons for heretofore rejecting direct ownership and operation of their stations; it is wholly reasonable to believe that such incentives persist.
51
Having consciously chosen not to effect direct distribution through wholly owned and operated stations, Sun cannot now claim for itself the benefits of such a system and seek to inject itself as a supplier into what on this record appears as a struggle wholly between retailers, when such interference favors one of Sun's customers at the expense of others.
52
Thus, consistent with overall antitrust policy and the language and very purposes of the Robinson-Patman amendments, we conclude that § 2(b) of the Act contemplates that the lower price which may be met by one who would discriminate must be the lower price of his own competitor; since there is in this record no evidence of any such price having been set, or offered to anyone, by any competitor of Sun, within the meaning of § 2(b),19 Sun's claim to the benefit of the good-faith meeting of competition defense must fail. Accordingly, the judgment of the Court of Appeals is
53
Reversed.
54
Separate memorandum of Mr. Justice HARLAN, in which Mr. Justice STEWART joins.
55
I agree with the conclusion reached by the Court that, on the present record, Sun has failed to make out a defense under § 2(b) of the Clayton Act, as amended by the Robinson-Patman Act.
56
However, instead of reversing the judgment below I would remand the case to the Commission so as to afford opportunity for the introduction of further evidence. The Court recognizes, ante, p. 512, note 7, that a different case would be presented 'if it appeared either that Super Test were an integrated supplier-retailer, or that it had received a price cut from its own supplier—presumably a competitor of Sun.' It is true that the burden of proof in establishing a § 2(b) defense rests on Sun, and that it must therefore bear the responsibility for any gaps in the record. But it is equally true that we are here dealing with an extremely difficult question arising under a singularly opaque and elusive statute.
57
If, as the Court acknowledges, it may be important to know whether Super Test was integrated, or whether it received a price cut from its supplier, I see no reason to foreclose development of the relevant facts in this proceeding. This case is one of far-reaching importance in the administration of the Robinson-Patman Act, and yet by our final disposition of it we leave unanswered as many questions as we have resolved. If a more complete record would permit resolution of these additional questions, we do both litigants an injustice by refusing to allow such a record to be made. For the Commission, which has had trouble making up its own mind in this area,* has as much interest as the respondent in definitive answers to these perplexing problems.
1
38 Stat. 730, as amended, 49 Stat. 1526, 15 U.S.C. § 13(a), 15 U.S.C.A. § 13(a).
2
49 Stat. 1526, 15 U.S.C. § 13(b), 15 U.S.C.A. § 13(b).
3
In 1956, Sun had a total of approximately 6,980 domestic dealers. In 1954, the year preceding the alleged violation, Sun was the thirteenth largest of the integrated oil companies. H.R.Rep. No. 1423, 84th Cong., 1st Sess. 23. Among United States industrial corporations of all types, it ranked forty-fourth in assets, thirty-sixth in net profits, and thirty-eighth in sales. S.Rep. No. 2810, 84th Cong., 2d Sess. 7.
4
During the period from July through November 1955, McLean's monthly sales in gallons varied from a high of about 7,400 (July) to a low of approximately 5,900 (November). McLean cut his price on December 27, 1955; his December sales were 8,300 gallons. His sales in January 1956 jumped to over 32,000 gallons and continued at about the same rate into February until he discontinued business.
In July 1955, the month following its opening, Super Test sold just over 5,000 gallons of 'regular' gasoline at its Jacksonville station; its monthly sales of 'regular' thereafter varied from about 10,700 gallons (September) to slightly under 19,000 (December). In January and February 1956, Super Test's sales of regular exceeded 61,000 and 67,000 gallons, respectively.
5
38 Stat. 719, as amended by 52 Stat. 111, 15 U.S.C. § 45, 15 U.S.C.A. § 45.
6
See, e.g., Note, 62 Col.L.Rev. 171 (1962); Note, 1962 Duke L.J. 300; Note, 75 Harv.L.Rev. 429 (1961).
7
Were it otherwise, i.e., if it appeared either that Super Test were an integrated supplier-retailer, or that it had received a price cut from its own supplier—presumably a competitor of Sun we would be presented with a different case, as to which we herein neither express nor intimate any opinion.
8
Section 2(a) provides in more extensive part:
'That it shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them * * *.'
9
Section 2(b) provides in full text:
'Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor.'
10
A reading of § 2(b) such as Sun contends for would also make it difficult, if not impossible, to read sensibly the section's reference to the 'services or facilities' of a competitor.
11
While subsequent legislative materials are neither appropriate nor relevant guides to interpretation of prior enactments, it is interesting to note that a Senate Select Committee on Small Business, reporting in 1956 on a New Jersey gasoline price war, concluded that the Federal Trade Commission should enforce the Act against 'all instances of price discrimination,' that such action might have stopped the price war in 'its incipiency,' and that the § 2(b) defense should not be available to protect a supplier who discriminatorily lowered his price 'not for the purpose of meeting the equally low price of a competitor but, rather, to enable some of his dealers to meet the prices charged by competitive gasoline retailers.' S.Rep.No.2810, 84th Cong., 2d Sess. 28—29.
12
See generally H.R.Rep.No.1423, 84th Cong., 1st Sess.; see Note, 29 U. of Chi.L.Rev. 355, 365—366 (1962).
13
It appears that there may be some competition, at least among the 'major' oil companies, to win the more efficient jobbers and retailers to distribution of their brands of gasoline; a similar competition may exist for preferred locations.
14
The 'lower offer' which, under this analysis, Sun was meeting by its price cut to McLean was the retail price posted by Super Test. Obviously, to the extent that any such theory the supplier attempted to set, or was responsible for setting, the retail price, there would be inherent antitrust problems arising from possible existence of illegal price-fixing agreements.
15
Cf. American Oil Co., F.T.C.Dkt.No.8183, CCH Trade Reg.Rep. 15,961 (June 27, 1962) (dissenting opinion of Commissioner Elman).
16
Nothing we say in this case—involving injury only to so-called 'secondary-line' competition, that is, competition among buyers—is inconsistent with Federal Trade Comm. v. Anheuser-Busch, Inc., 363 U.S. 536, 80 S.Ct. 1267, 4 L.Ed.2d 1385, in which, in the context of asserted injury to 'primary-line' competition, that is, competition with the seller, it was held that a 'discrimination' under § 2(a) of the Act comprehends a 'difference in price' among even non-competing purchasers, the legality or illegality of which depends upon whether or not there is likely to be substantial injury to competition among sellers.
17
Since Sun made no attempt here to utilize a so-called 'feathered' discount to its dealers, under which the amount of the price allowance diminishes as it reaches stations further away from the center of the price war, we need not expressly pass upon such practice. However, it may be noted that a properly designed and limited price reduction system fashioned in such a manner might, under appropriate circumstances, be found to have obviated substantial competitive harm to the other Sun dealers and thereby negated a violation of § 2(a) such as is here charged. Of course, improperly designed or too sharply drawn 'feathering' gradations may produce precisely the same effect as no gradation at all, and consequently fall within the same ban as an outright illegal discrimination.
18
Insofar as Sun is free to pursue certain alternative courses of action, it may convert what was a competitive struggle simply at the retail level into one involving a supplier. But, by definition, Sun will not have acted in such a manner as to produce substantial anticompetitive effects at the secondary level, i.e., among Sun's customers. Moreover, not only will there be no price cut by Sun at the expense of nonfavored dealers, but the broader nature of the response required will serve as an inhibition on utilization of price reductions to pursue essentially anticompetitive objectives and will preclude undue restraint upon the enterprising retailer who is willing, and presumably able, to lower his price without the aid of his supplier.
19
In this posture of the case, we find it unnecessary to pass upon the Commission's apparently alternative theory that a lower competitive offer to McLean himself was a prerequisite to Sun's invocation of the § 2(b) defense.
*
At one time, as indicated by various letters written by the then Director of the Bureau of Investigation in 1954, the Commission took the position that the § 2(b) defense was available under the facts before us today. See Hearings on Distribution Problems before Subcommittee No. 5 of the House Select Committee on Small Business, 84th Cong., 1st Sess. 459—463, 852—853 (1955).
| 78
|
371 U.S. 296
83 S.Ct. 476
9 L.Ed.2d 325
PAN AMERICAN WORLD AIRWAYS, INC., Appellant,v.UNITED STATES. UNITED STATES, Appellant, v. PAN AMERICAN WORLD AIRWAYS, INC., et al.
Nos. 23 and 47.
Argued Nov. 8, 1962.
Decided Jan. 14, 1963.
[Syllabus from pages 296-297 intentionally omitted]
Archibald Cox, Sol. Gen., for appellee and appellant United states.
David W. Peck, New York City, for appellant and appellee Pan American World Airways, Inc.
Lawrence J. McKay, New York City, for appellee W. R. Grace & Co.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This is a civil suit brought by the United States charging violations by Pan American, W. R. Grace & Co., and Panagra of §§ 1, 2, and 3 of the Sherman Act, 15 U.S.C. §§ 1, 2, and 3. This suit, which the Civil Aeronautics Board requested the Attorney General to institute, charged two major restraints of trade. First, it is charged that Pan American and Grace, each of whom owns 50% of the stock of Panagra, formed the latter under an agreement that Panagra would have the exclusive right to traffic along the west coast of South America free from Pan American competition and that Pan American was to be free from competition of Panagra in other areas in South America and between the Canal Zone and the United States. Second, it is charged that Pan American and Grace conspired to monopolize and did monopolize air commerce between the eastern coastal areas of the United States and western coastal areas of South America and Buenos Aires. Pan American was also charged with using its 50% control over Panagra to prevent it from securing authority from the C.A.B. to extend its route from the Canal Zone to the United States.1
2
In 1928, when Pan American and Grace entered into an agreement to form Panagra,2 air transportation was in its infancy; and this was the first entry of an American air carrier on South America's west coast. Pan American in 1930 acquired the assets of an airline competing with it for air traffic from this country to the north and east coasts of South America and received a Post Office air mail subsidy contract.3
3
The District Court found that there was no violation by Pan American and Grace of § 1 of the Sherman Act through the division of South American territory between Pan American and Panagra.4 It held, however, that Pan American violated § 2 of the Sherman Act by suppressing Panagra's efforts to extend its route from the Canal Zone to this country—in particular, by blocking Panagra's application to the Civil Aeronautics Board for a certificate for operation north of the Canal Zone.5 It indicated that Pan American should divest itself of Panagra stock. But it directed dismissal of the complaint against Grace and against Panagra, holding that none of their respective practices violated the Sherman Act. 193 F.Supp. 18. Both Pan American and the United States come here on direct appeals (15 U.S.C. § 29); and we postponed the question of jurisdiction to the merits. 368 U.S. 964, 966, 82 S.Ct. 438, 440, 7 L.Ed.2d 395.
4
When the transactions, now challenged as restraints of trade and monopoly, were first consummated, air carriers were not subject to pervasive regulation. In 1938 the Civil Aeronautics Act (52 Stat. 973 (49 U.S.C. § 401 et seq., 1952 Ed.)) was passed which was superseded in 1958 by the Federal Aviation Act, 72 Stat. 731, 49 U.S.C. § 1301 et seq., the latter making no changes relevant to our present problem. Since 1938, the industry has been regulated under a regime designed to change the prior competitive system. As stated in S.Rep. No. 1661, 75th Cong., 3d Sess., p. 2, 'Competition among air carriers is being carried to an extreme, which tends to jeopardize the financial status of the air carriers and to jeopardize and render unsafe a transportation service appropriate to the needs of commerce and required in the public interest, in the interests of the Postal Service, and of the national defense.'
5
Some provisions of the 1938 Act deal only with the future, not the past. Such, for example, are the provisions dealing with abandonment of routes (§ 401(k)), with loans or financial aid from the United States (§ 410), and with criminal penalties. § 902. The Act, however, did not freeze the status quo nor attempt to legalize all existing practices. Thus § 401 requires every 'air carrier' to acquire a certificate from the Board, a procedure being provided whereby some could obtain 'grandfather' rights. By § 401(h) the Board has authority to alter, amend, modify, or suspend certificates whenever it finds such action to be in the public interest.
6
Section 409, in regulating interlocking relations between air carriers and other common carriers or between air carriers and those 'engaged in any phase of aeronautics,' looks not only to the future but to the past as well. For the prohibition is that no air carrier may 'have and retain' officers or directors of the described classes. Section 408, which is directed at consolidations, mergers, and acquisition of control over an 'air carrier,' makes it unlawful, unless approved by the Board, for any 'common carrier' to 'purchase, lease, or contract to operate the properties' of an 'air carrier' or to 'acquire control of any air carrier in any manner whatsoever' or to 'continue to maintain any relationship established in violation of any of the foregoing' provisions of § 408(a). By § 408(b) a common carrier is taken to be an 'air carrier' for the purposes of § 408; and transactions that link 'common carriers' to 'air carriers' shall not be approved unless the Board finds that 'the transaction proposed will promote the public interest by enabling such carrier other than an air carrier to use aircraft to public advantage in its operation and will not restrain competition.'
7
We do not suggest that Grace, a common carrier, need get the Board's approval to continue the relationship it had with Panagra when the 1938 Act became effective.6 It is clear, however, that the Board under § 411 of the 1958 Act has jurisdiction over 'unfair practices' and 'unfair methods of competition' even though they originated prior to 1938.
8
That section provides.
9
'The Board may, upon its own initiative or upon complaint by any air carrier, foreign air carrier, or ticket agent, if it considers that such action by it would be in the interest of the public, investigate and determine whether any air carrier, foreign air carrier, or ticket agent has been or is engaged in unfair or deceptive practices or unfair methods of competition in air transportation or the sale thereof. If the Board shall find, after notice and hearing, that such air carrier, foreign air carrier, or ticket agent is engaged in such unfair or deceptive practices or unfair methods of competition, it shall order such air carrier, foreign air carrier, or ticket agent to cease and desist from such practices or methods of competition.' (Italics added.) 49 U.S.C. § 1381.
10
The words 'has been or is engaged in unfair * * * practices or unfair methods of competition' plainly include practices started before the 1938 Act and continued thereafter7 as well as practices instituted after the effective date of the Act.
11
The parentage of § 411 is established. As the Court stated in American Airlines v. North American Airlines, 351 U.S. 79, 82, 76 S.Ct. 600, 604, 100 L.Ed. 953 this section was patterned after § 5 of the Federal Trade Commission Act,8 and '(w)e may profitably look to judicial interpretation of § 5 as an aid in the resolution of * * * questions raised * * * under § 411.' As respects the 'public interest' under § 411, the Court said:
12
'* * * the air carriers here conduct their business under a regulated system of limited competition. The business so conducted is of especial and essential concern to the public, as is true of all common carriers and public utilities. Finally, Congress has committed the regulation of this industry to an administrative agency of special competence that deals only with the problems of the industry.' Id., 84, 76 S.Ct. 604.
13
The Board in regulating air carriers is to deal with at least some antitrust problems. Apart from its power under § 411, it is given authority by §§ 408 and 409, as already noted, over consolidations, mergers, purchases, leases, operating contracts, acquisition of control of an air carrier, and interlocking relations. Pooling and other like arrangements are under the Board's jurisdiction by reason of § 412. Any person affected by an order under §§ 408, 409 and 412 is 'relieved from the operations of the 'antitrust laws," including the Sherman Act. § 414. The Clayton Act, insofar as it is applicable to air carriers, is enforceable by the Board. 52 Stat. 973, 1028, § 1107(g); 15 U.S.C. § 21.
14
There are various indications in the legislative history that the Civil Aeronautics Board was to have broad jurisdiction over air carriers, insofar as most facets of federal control are concerned.
The House Report stated:
15
'It is the purpose of this legislation to coordinate in a single independent agency all of the existing functions of the Federal Government with respect to civil aeronautics, and, in addition, to authorize the new agency to perform certain new regulatory functions which are designed to stabilize the airtransportation industry in the United States.' H.R.Rep.No.2254, 75th Cong., 3d Sess., p. 1.
16
No mention is made of the Department of Justice and its role in the enforcement of the antitrust laws, yet we hesitate here, as in comparable situations,9 to hold that the new regulatory scheme adopted in 1938 was designed completely to displace the antitrust laws—absent an unequivocally declared congressional purpose so to do. While the Board is empowered to deal with numerous aspects of what are normally thought of as antitrust problems, those expressly entrusted to it encompass only a fraction of the total. Apart from orders which give immunity from the antitrust laws by reason of § 414, the whole criminal law enforcement problem remains unaffected by the Act. Cf. United States v. Pacific & Artic Co., 228 U.S. 87, 105, 33 S.Ct. 443, 448, 57 L.Ed. 742. Moreover, on the civil side violations of antitrust laws other than those enumerated in the Act might be imagined. We, therefore, refuse to hold that there are no antitrust violations left to the Department of Justice to enforce.
17
That does not, however, end our inquiry. Limitation of routes and divisions of territories and the relation of common carriers to air carriers are basic in this regulatory scheme. The acts charged in this civil suit as antitrust violations are precise ingredients of the Board's authority in granting, qualifying, or denying certificates to air carriers, in modifying, suspending, or revoking them, and in allowing or disallowing affiliations between common carriers and air carriers.10 The case is therefore quite unlike Georgia v. Pennsylvania R. Co., supra, where a conspiracy among carriers for the fixing of through and joint rates was held to constitute a cause of action under the antitrust laws, in view of the fact that the Interstate Commerce Commission had no power to grant relief against such combinations.11 And see United States v. R.C.A., 358 U.S. 334, 346, 79 S.Ct. 457, 464, 3 L.Ed.2d 354. And the present Act does not have anything comparable to the history of the Capper-Volstead Act, which we reviewed in Maryland and Virginia Milk Producers Assn. v. United States, 362 U.S. 458, 80 S.Ct. 847, 4 L.Ed.2d 880, and which showed that farmer-producers were not made immune from the class of predatory practices charged in that civil suit as antitrust violations. Id., pp. 464—467, 80 S.Ct. p. 853.
18
The words 'unfair * * * practices' and 'unfair methods of competition' as used in § 411 contain a 'broader' concept than 'the common-law idea of unfair competition.' American Airlines v. North American Airlines, supra, 351 U.S. 85, 76 S.Ct. 600, 100 L.Ed. 953. They derive, as already noted, from the Federal Trade Commission Act; and their meaning in the setting of that Act has been much discussed. They do not embrace a remedy for private wrongs but only a means of vindicating the public interest. Federal Trade Comm'n v. Klesner, 280 U.S. 19, 25—30, 50 S.Ct. 1, 4, 74 L.Ed. 138. The scope of 'unfair practices' and 'unfair methods of competition' was left for case-by-case definition. The Senate Report stated:
19
'It is believed that the term 'unfair competition' has a legal significance which can be enforced by the commission and the courts, and that it is no more difficult to determine what is unfair competition than it is to determine what is a reasonable rate or what is an unjust discrimination. The committee was of the opinion that it would be better to put in a general provision condemning unfair competition than to attempt to define the numerous unfair practices, such as local price cutting, interlocking directorates, and holding companies intended to restrain substantial competition.' S.Rep.No. 597, 63d Cong., 2d Sess., p. 13.
20
The legislative history was reviewed in Federal Trade Comm'n v. Raladam Co., 283 U.S. 643, 649—650, 51 S.Ct. 587, 75 L.Ed. 1324, the Court concluding that 'unfair competition was that practice which destroys competition and establishes monopoly.' Id., 650, 51 S.Ct. 591. The provision was designed to supplement the Sherman Act by stopping 'in their incipiency those methods of competition which fall within the meaning of the word 'unfair.' * * * All three statutes (the Sherman and Clayton Acts and § 5) seek to protect the public from abuses arising in the course of competitive interstate and foreign trade.'12 Id., 647, 51 S.Ct. 590. See Federal Trade Comm'n v. Beech-Nut Co., 257 U.S. 441, 453 454, 42 S.Ct. 150, 154, 66 L.Ed. 307; Federal Trade Comm'n v. R. F. Keppel & Bro., 291 U.S. 304, 310—312, 54 S.Ct. 423, 426, 78 L.Ed. 814; 2 Toulmin's Anti-Trust Laws (1949) § 43.6. Joint ventures may be combinations in violation of the antitrust laws. Timken Roller Bearing Co. v. United States, 341 U.S. 593, 598, 71 S.Ct. 971, 974, 95 L.Ed. 1199. Whatever the unfair practice or unfair method employed, § 411 of this Act, like § 5 of the Federal Trade Commission Act (Federal Trade Comm'n v. Motion Picture Adv. Co., 344 U.S. 392, 394—395, 73 S.Ct. 361, 363, 97 L.Ed. 426), was designed to bolster and strengthen anti-trust enforcement.
21
We have said enough to indicate that the words 'unfair practices' and 'unfair methods of competition' are not limited to precise practices that can readily be catalogued. They take their meaning from the facts of each case and the impact of particular practices on competition and monopoly.
22
These words, transferred to the Civil Aeronautics Act, gather meaning from the context of that particular regulatory measure and the type of competitive regime which it visualizes. Cf. American Power & Light Co. v. Securities & Exchange Comm'n, 329 U.S. 90, 104—105, 67 S.Ct. 133, 142, 91 L.Ed. 103. That regime has its special standard of the 'public interest' as defined by Congress. The standards to be applied by the Board in enforcing the Act are broadly stated in § 2:
23
'In the exercise and performance of its powers and duties under this chapter, the Board shall consider the following, among other things, as being in the public interest, and in accordance with the public convenience and necessity—
24
'(a) The encouragement and development of an air-transportation system properly adapted to the present and future needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense;
25
'(b) The regulation of air transportation in such manner as to recognize and preserve the inherent advantages of, assure the highest degree of safety in, and foster sound economic conditions in, such transportation, and to improve the relations between, and coordinate transportation by, air carriers;
26
'(c) The promotion of adequate, economical, and efficient service by air carriers at reasonable charges, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices;
27
'(d) Competition to the extent necessary to assure the sound development of an air-transportation system properly adapted to the needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense; '(e) The regulation of air commerce in such manner as to best promote its development and safety; and
28
'(f) The encouragement and development of civil aeronautics.' 52 Stat. 980. And see 49 U.S.C. § 1302.
29
The 'present and future needs' of our foreign and domestic commerce, regulations that foster 'sound economic conditions,' the promotion of service free of 'unfair or destructive competitive practices,' regulations that produce the proper degree of 'competition'—each of these is pertinent to the problems arising under § 411.
30
It would be strange, indeed, if a division of territories or an allocation of routes which met the requirements of the 'public interest' as defined in § 2 were held to be antitrust violations. It would also be odd to conclude that an affiliation between a common carrier and an air carrier that passed muster under § 408 should run afoul of the antitrust laws. Whether or not transactions of that character meet the standards of competition and monopoly provided by the Act is peculiarly a question for the Board, subject of course to judicial review as provided in 49 U.S.C. § 1486. Cf. Federal Maritime Bd. v. Isbrandtsen Co., 356 U.S. 481, 78 S.Ct. 851, 2 L.Ed.2d 926; Schaffer Transportation Co. v. United States, 355 U.S. 83, 78 S.Ct. 173, 2 L.Ed.2d 117.
31
In case of a prospective application of the Act, the Board's order, as noted, would give the carrier immunity from antitrust violations 'insofar as may be necessary to enable such person to do anything authorized, approved, or required by such order.' § 414. Alternatively, the Board under § 411 can investigate and bring to a halt all 'unfair * * * practices' and all 'unfair methods of competition,' including those which started prior to the Act.13 If the courts were to intrude independently with their construction of the antitrust laws, two regimes might collide. Furthermore, many of the problems presented by this case, which involves air routes to and in foreign countries, may involve military and foreign policy considerations that the Act, as construed by a majority of the Court in Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568, subjects to presidential rather than judicial review. It seems to us, therefore, that the Act leaves to the Board under § 411 all questions of injunctive relief against the division of territories or the allocation of routes or against combinations between common carriers and air carriers.14 See Texas & Pacific R. Co. v. Abilence Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553; Keogh v. Chicago & N.W.R. Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183.
32
The fact that transactions occurring before 1938 are involved in this case does not change our conclusion. The past is prologue and the impact of pre-1938 transactions on present problems of air carriers is eloquently demonstrated in a recent order of the Board concerning the United States flag carrier route pattern between this country and South America which is set forth in part in the Appendix to this opinion. The status of Panagra— jointly owned by Pan American and Grace—is central to that problem,15 as that order makes clear. What was done in the pre-1938 days may be so disruptive of the regime visualized by the Act or so out of harmony with the statutory standards for competition set by the Act16 that it should be undone in proceedings under § 411. The transactions in question are reached by the terms of § 411. But more important, the particular relation of this problem to the general process of encouraging development of new fields of air transportation makes it all the more appropriate that the Board should decide whether these particular transactions should be undone in whole or in part, or whether they should be allowed to continue.
33
It is suggested that the power of the Board to issue a 'cease and desist' order is not broad enough to include the power to compel divestiture and that in any event its power to do so under § 411 runs solely to air carriers, not to common carriers or other stockholders. We do not read the Act so restrictively. The Board has no power to award damages or to bring criminal prosecutions. Nor does it, as already noted, have jurisdiction over every antitrust violation by air carriers. But where the problem lies within the purview of the Board, as do questions of division of territories, the allocation of routes, and the affiliation of common carriers with air carriers, Congress must have intended to give it authority that was ample to deal with the evil at hand.
34
We need not now determine the ultimate scope of the Board's power to order divestiture under § 411. It seems clear that such power exists17 at least with respect to the particular problems involved in this case. Of principal importance here, we think, is the fact that the Board could have retained such power over these transactions, if they had occurred after 1938, by so conditioning its grant of approval. The terms of § 411 do not distinguish between conduct before or after that date. If the Act is to be administered as a coherent whole, we think § 411 must include an equivalent power over pre-enactment events of the kind involved in this case18—although, of course, the Board might find that the historic background of these pre-1938 transactions introduces different considerations in formulating a suitable resolution of the problem involved.
35
We think the narrow questions presented by this complaint have been entrusted to the Board and that the complaint should have been dismissed.19 Accordingly we reverse the judgment and remand the case for proceedings in conformity with this opinion.
36
So ordered.
37
Judgment reversed and case remanded.
38
Mr. Justice CLARK and Mr. Justice HARLAN took no part in the consideration or decision of these cases.
39
(For dissenting opinion of Mr. Justice BRENNAN, see 371 U.S. 319, 83 S.Ct. 489.) APPENDIX TO OPINION OF THE COURT.
Order No. E—17289
40
UNITED STATES OF AMERICA CIVIL AERONAUTICS BOARD WASHINGTON, D.C.
41
Adopted by the Civil Aeronautics Board at its office in Washington, D.C. onthe 8th day of August, 1961.
42
In the matter of the United States-South America Route Case
Docket 12895
ORDER INSTITUTING INVESTIGATION
43
The Board has decided that it is appropriate at this time to institute a comprehensive review of the U.S. flag carrier route pattern between the United States and South America. The most recent extensive study of that route structure was undertaken in 1946, some 15 years ago. Since then considerable developments, hereinafter referred to, have taken place which affect these services and require the review here contemplated.
44
Three U.S. carriers are presently certificated to provide the major services to points in South America. Pan American World Airways, Inc. (Pan American), is authorized to provide service between San Francisco, Los Angeles, Houston, New Orleans, Washington, Philadelphia and New York-Newark, on the one hand, and points on the north and east coasts of South America including Rio de Janeiro and Buenos Aires, on the other hand, via points in Central America and the Caribbean, on route 136. Pan American-Grace Airways, Inc. (Panagra) is authorized to provide service between Balboa, Guayaquil, Lima, Santiago and Buenos Aires, via intermediate points, primarily along the west coast of South America, on route 146. Braniff Airways, Inc. (Braniff) is authorized to provide service between Houston and Miami, on the one hand, and Havana, Balboa, Bogota, Guayaquil, Lima, Rio de Janeiro and Buenos Aires, on the other hand, via intermediate points, on route FAM—34.1
45
As previously indicated, the basis U.S. flag carrier route patterns between the United States and South America presently in effect were established some years ago in the Additional Service to Latin America Case, 6 C.A.B. 857 (1946). Matters involving service between the United States and South America were, however, further considered in the New York-Balboa Through Service Proceeding, Reopened, 18 C.A.B. 501 (1954), 20 C.A.B. 493 (1954), and certain through-service aircraft interchange agreements were approved as a result of the New York-Balboa case by Order E—9481, 21 C.A.B. 1005 (1955). Also, the certification of a Los Angeles/San Francisco—Guatemala City route, last considered in Order E—9514, August 3, 1955, permitted Pan American to operate between the west coast of the United States and points in South America.
46
Since the original establishment of the basic South America route structure, there have been basic changes in technology and patterns of service. Thus, in 1944, the range of aircraft was relatively limited and operational requirements, as well as economic considerations, required multiple stops on the long-haul service. Today, available aircraft can, and do, serve the most distant points on a nonstop basis. Of the relative attractiveness of nonstop to multi-stop service in comparable equipment there can be no question; consequently, the changed technology which has made nonstop services operationally feasible warrants a careful review of the economics of such service in relation to the existing and future route structure. Similarly, changes have taken place in the competitive picture. Prior to the decision in the Latin America Case, supra, Pan American and Panagra operated in competition with three foreign air carriers. Today, 19 South American foreign air carriers are authorized to serve the United States-South America market. There has also been an increase in service within South America by local carriers. Not only do these services rendered by non-U.S. flag carriers dilute the potential economic support for the services of the U.S. carriers, but also they bring into question the need for point-to-point duplication of such services. In this connection, we cannot be unmindful of the fact that the U.S. flag carriers' operations are marginal economically.
47
Our concern with the current South America route pattern is not a recent one. As long ago as 1954, the Board publicly suggested that the available traffic in South America did not warrant continuation of three United States flag services.2 In the Interim Opinion in the New York-Balboa case, supra, it was noted that Braniff was not an effective competitor for South American traffic and that the public interest of the United States would be served by the establishment of a single independent carrier operation between Houston and Miami, on the one hand, and the points served on the combined routes of Panagra and Braniff, on the other hand. The Board then also voiced its interest in making such a route available to northeastern United States traffic. The hope then was that the carriers concerned would voluntarily seek to resolve the problem along the lines suggested.3 In this connection, we were fully cognizant of the recent institution of a suit by the Attorney General against Pan American, Panagra, and W. R. Grace and Company, which, on antitrust grounds, sought divestiture by Pan American and Grace of their interest in Panagra. However, the principals did not come forward with a proposal. Instead, the suit was permitted to proceed to trial and judgment, and it is currently pending possible review by the United States Supreme Court.4
48
Assuming that the District Court's judgment, at least insofar as it ordered divestiture by Pan American of its interest in Panagra, is sustained,5 it is clear that the Board will, in the near future, be called upon to consider further the consequences of divestiture with respect to U.S. flag services in South America. And in order for the Board to be able promptly and effectively to take such further steps as might be required in the circumstances, it would be well for it to have considered carefully the overall need for U.S. flag services in South America in the light of a litigated record.
49
Since the selection of carrier issues will remain somewhat clouded until final resolution of the pending antitrust suit, it appears appropriate and in the interest of a sound and orderly disposition of this proceeding to consider separately the appropriate route structure prior to consideration of selection of carrier matters. We recognize that factual matters relative to public convenience and necessity issues may also have their carrier selection aspects; similarly, we are not unmindful of the fact that, while the prescribed route pattern can be established in substantial part without regard to carrier selection, some adjustment in route pattern may be found necessary at the time we decide the carrier selection issues. We anticipate, however, the full cooperation of all concerned to facilitate an appropriate separation of these issues.
50
The Board intends that the scope of the proceeding instituted herein include issues with respect to authorization of services to new points, the deletion of presently certificated points, and the consolidation of separate routes into single routes.6 Caribbean points will be considered only to the extent that they are in issue as possible intermediate points on United States-South America routes, and the proceeding will not examine services wholly within the Caribbean area, or between points in the United States and the Caribbean.
51
In its study of the South American route pattern, the Board has tentatively concluded that an east coast route and a west coast route are required. The details of the routes are set forth in the attached analysis. In addition, and because we have found that considerable route modifications are necessary to meet present needs and problems, we have compiled and attached hereto data which we believe will facilitate hearing and decision. The attached materials should serve as the focal point for the trial of this case, and we direct that the presentation of participants in the proceeding, unless otherwise ordered by the Board upon good cause shown therefor, be pointed to showing why and in what manner the conclusions derived from the study should be modified. Such an approach can restrict the hearing to relevant and material facts and otherwise minimize procedural delay.
52
Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE concurs, dissenting.
53
The Court holds that the 'narrow questions presented by this complaint have been entrusted to the (Civil Aeronautics) Board and that the complaint should have been dismissed.' The ground of the decision is that the provisions for economic regulation in the Civil Aeronautics Act of 1938, which were reenacted without change in the Federal Aviation Act of 1958, displaced the Sherman Act insofar as 'all questions of injunctive relief against the division of territories or the allocation of routes or against combinations between common carriers and air carriers' is concerned. With all respect, I think this conclusion is contrary to reason and precedent.
I.
54
The root error, as I set it, in the Court's decision is that it works an extraordinary and unwarranted departure from the settled principles by which the antitrust and regulatory regimes of law are accommodated to each other. As a result of today's decision, certain questions under the antitrust laws are placed in the exclusive competence of the Board and will not be the subject of original court actions to enforce the antitrust laws. In effect, a pro tanto repeal of the antitrust laws is contemplated, since the law to be applied in Board proceedings under § 411 is based not upon the antitrust laws but upon the 'public interest' and 'competition to the extent necessary' standards of the Board's overall mandate. See 49 U.S.C. § 1302. And though the Board's decisions under § 411 are subject to judicial review, presumably such review will be limited to ensuring that the Board adheres to the criteria set out in its mandate. See American Airlines, Inc., v. North American Airlines, Inc., 351 U.S. 79, 85, 76 S.Ct. 600, 605, 100 L.Ed. 953.
55
But of the instruments of accommodation that are available, pro tanto repeal of the antitrust laws by implication from a regulatory statute such as the Aeronautics Act is surely the very last that ought to be resorted to. It cannot be justified as a matter of statutory construction. Section 414 of the Act immunizes from the operation of the antitrust laws transactions as to which the Board has issued orders of approval under §§ 408, 409, and 412 (consolidations and mergers, interlocking directorates, and cooperative working arrangements). The existence of this express and specific provision for exemption would seem to presuppose the general applicability of the antitrust laws to the airline industry, and to limit the Board's exempting power to the enumerated orders, which do not include orders issued under § 411; the Court concedes that the Board has no power under §§ 408, 409, or 412 to approve the transactions upon which the instant suit is predicated. Furthermore, it is odd indeed that the Board should have express statutory authorization to enforce §§ 2, 3, 7, and 8 of the Clayton Act (see 15 U.S.C. § 21, 15 U.S.C.A. § 21) while the Sherman Act is not enforceable by any procedure with respect to the wide range of transactions comprised in the rule laid down by the Court today. It is odd because the Clayton Act was intended to supplement and reinforce the basic antitrust prohibitions of the Sherman Act, rather than to form an independent and self-sufficient scheme of regulation. By its action today, the Court subjects the airline industry to a crazy quilt of antitrust controls that Congress can hardly have contemplated.
56
Two further aspects of the Aeronautics Act cut against the Court's interpretation. The first is the presence of a saving clause: 'Nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.' 49 U.S.C. § 1506. The second is the total absence from the Act of any provision for damages or reparations. This lacuna leads the Court, somewhat unusually in light of certain prior decisions,1 to intimate that the damages remedy under the antitrust laws survives where the injunctive remedy is barred—an impractical solution, as I shall try to demonstrate, see infra, pp. 326—327. The more reasonable interpretation of the absence of a provision for damages is that the Act was not intended to be an absolutely all-inclusive scheme of regulation which would oust every remedy afforded by a different statute or by the common law. The antitrust laws were to be allowed to function, save as regards the specific exemptions provided for in § 414, and these laws would support actions for damages and for equitable relief.
57
I am satisfied that the scheme of the Aeronautics Act refutes any inference that pro tanto repeal of the antitrust laws was intended. Nor does the legislative history furnish any support for the Court's position. The Court cites but a single sentence: 'It is the purpose of this legislation to coordinate in a single independent agency all of the existing functions of the Federal Government with respect to civil aeronautics * * *.' H.R.Rep. No. 2254, 75th Cong., 3d Sess., p. 1. Prior to the enactment of the Aeronautics Act of 1938, the regulation of civil aviation had been divided between the Interstate Commerce Commission, the Department of Commerce, and the Post Office Department; and the plain meaning of the quoted sentence, especially in light of the debates that preceded passage of the Act, is that as a result of the Act regulation of civil aviation would be centralized in one agency, the CAB. See Hearings on H.R. 9738 before the House Committee on Interstate and Foreign Commerce, 75th Cong., 3d. Sess., p. 37.
58
But a still more conclusive refutation of the Court's reading of the Act is provided by an unbroken chain of decisions by this Court rejecting, in comparable situations, claimed pro tanto repeals by implication of the antitrust laws. Perhaps the leading case is United States v. Borden Co., 308 U.S. 188, 197—206, 60 S.Ct. 182, 191, 84 L.Ed. 181, where the Court held emphatically that the enactment of a regulatory statute would not be deemed to work a pro tanto repeal of the antitrust laws, save only if there was a plain repugnancy between the two regimes (which the Court does not suggest, except in the vaguest conclusional terms, is the case here), in which case repeal would be implied only to the extent of the repugnancy. But the holding of the Borden case had been anticipated in much earlier decisions of the Court. See United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 315, 17 S.Ct. 540, 549, 41 L.Ed. 1007; Keogh v. Chicago & N.W.R. Co., 260 U.S. 156, 161—162, 43 S.Ct. 47, 49, 67 L.Ed. 183; Central Transfer Co. v. Terminal Railroad Assn., 288 U.S. 469, 475—476, 53 S.Ct. 444, 446, 77 L.Ed. 899; Terminal Warehouse Co. v. Pennsylvania R. Co., 297 U.S. 500, 515, 56 S.Ct. 546, 552, 80 L.Ed. 827. See also United States v. Joint Traffic Assn., 171 U.S. 505, 19 S.Ct. 25, 43 L.Ed. 259; United States v. Pacific & Arctic Ry. & Nav. Co., 228 U.S. 87, 107—108, 33 S.Ct. 443, 449, 57 L.Ed. 742. And the canon of construction that repeals by implication are not favored has even a longer history in this Court's jurisprudence. See, e.g., United States v. Tynen, 11 Wall. 88, 92, 20 L.Ed. 153; Henderson's Tobacco, 11 Wall. 652, 20 L.Ed. 235.
59
Georgia v. Pennsylvania R. Co., 324 U.S. 439, 456—457, strongly reaffirmed the Borden principle in the context of a regulatory scheme, the Interstate Commerce Act, no less pervasive than that which governs the airline industry. I believe it is accurate to say that the Court had never until today deviated from this position. See United States v. United States Alkali Export Assn., 325 U.S. 196, 205—206, 65 S.Ct. 1120, 1126, 89 L.Ed. 1554; Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797, 805, 65 S.Ct. 1533, 1538, 89 L.Ed. 1939; United States v. Radio Corp. of America, 358 U.S. 334, 79 S.Ct. 457, 3 L.Ed.2d 354; Maryland & Va. Milk Producers Assn. v. United States, 362 U.S. 458, 464—465, 80 S.Ct. 847, 852, 4 L.Ed.2d 880; California v. Federal Power Comm'n, 369 U.S. 482, 82 S.Ct. 901, 8 L.Ed.2d 54. Cf. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 226—227, 60 S.Ct. 811, 846, 84 L.Ed. 1129; Federal Maritime Bd. v. Isbrandtsen Co., 356 U.S. 481, 78 S.Ct. 851, 2 L.Ed.2d 926. Only last Term, in California v. Federal Power Comm'n, supra, we wrote: 'Immunity from the antitrust laws is not lightly implied. * * * 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, 190, 84 L.Ed. 181.' 369 U.S., at 485, 82 S.Ct., at 903.
60
Furthermore, although this Court had not until today passed on the question whether the Aeronautics Act repealed by implication any part of the antitrust laws, the lower federal courts have uniformly held that it did not. See S.S.W., Inc., v. Air Transport Assn., 89 U.S.App.D.C. 273, 191 F.2d 658 (1951), cert. denied, 343 U.S. 955, 72 S.Ct. 1049, 96 L.Ed. 1355; Apgar Travel Agency, Inc. v. International Air Transport Assn., 107 F.Supp. 706 (D.C.S.D.N.Y.1952); Slick Airways, Inc., v. American Airlines, Inc., 107 F.Supp. 199 (D.C.N.J.1951), petition for prohibition dismissed sub nom. American Airlines v. Forman, 204 F.2d 230 (C.A.3d Cir.), cert. denied sub nom. American Airlines, Inc., v. Slick Airways, Inc., 346 U.S. 806, 74 S.Ct. 54, 98 L.Ed. 336.
61
Finally, it has been held that § 411 of the Aeronautics Act was modeled on § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, 15 U.S.C.A. § 45, and that decisions under § 5 are precedents for the construction of § 411. American Airlines, Inc., v. North American Airlines, Inc., 351 U.S. 79, 82, 76 S.Ct. 600, 603, 604, 100 L.Ed. 953. And § 5 has uniformly been construed to provide for duly enforcement by courts and agency of the antitrust laws, not exclusive enforcement by the agency. United States Alkali Export Assn. v. United States, 325 U.S. 196, 205—211, 65 S.Ct. 1120, 1128, 89 L.Ed. 1554; Federal Trade Comm. v. Cement Institute, 333 U.S. 683, 692—695, 68 S.Ct. 793, 800, 92 L.Ed. 1010; United States v. Charles Pfizer & Co., 205 F.Supp. 94 (D.C.S.D.N.Y.1962); United States v. Cement Institute, 85 F.Supp. 344 (D.C.D.Colo.1949).
62
In light of this decisional history, it cannot be supposed that Congress, when it first enacted a scheme of comprehensive economic regulation of the airline industry in 1938 and when it reenacted these economic provisions without change in 1958, intended any displacement of the antitrust laws beyond that specifically provided for in § 414. Nor did the decisions I have cited rest upon the mechanical application of one of the common law's canons of statutory construction. However questionable the principle that repeals by implication are not favored may be in other contexts, it is entirely sound when dealing with the antitrust laws, and especially the Sherman Act. For this Act embodies perhaps the most basic economic policy of our society, basic and continuing: adhorrence of monopoly. The kind of conduct proscribed by the Sherman Act is simply not such that congressional silence may be interpreted as congressional approval. Where, as here, neither the scheme of the regulatory statute nor anything in the legislative history supports a pro tanto repeal by implication of the Sherman Act, it seems to me inescapable that we must reject such a solution. Nor can it be seriously contended that on the facts of the instant case judicial enforcement of the antitrust laws would disrupt, even slightly, the Board's regulation of civil aviation. See Part III, p. 327, infra. And since no question of certification for foreign air carriage is involved, there is no danger of court interference in matters committed to the President's discretion by 49 U.S.C. § 1461.
II.
63
The decision today is, to me, not only unsound in law, but impractical. The Court purports to lay down a general rule governing the division of responsibilities between the courts and the CAB; and while certain antitrust questions, including those at bar, are to be withdrawn from the courts, others are to remain subject to judicial enforcement. I consider the Court's proposed line of demarcation between the judicial and administrative regimes unsupportable. I see no basis upon which to withdraw questions of route allocation, territorial division, and combinations between common carriers and air carriers from judicial cognizance, yet leave unaffected (as the Court appears to intend to do) questions of rate fixing, combinations between air carriers simpliciter, and other serious anticompetitive practices. By what arcane logic does a conspiracy to fix routes go more to the heart of the regulatory scheme than a conspiracy to fix rates? True, the Board, while it has authority to fix routes in foreign air transportation, has no authority to fix rates therein; but the Act broadly prohibits all forms of unjust discrimination, which of course would embrace many rate-fixing practices. See 49 U.S.C. § 1374(b); Georgia v. Pennsylvania R. Co., 324 U.S. 439, 478, 480, 65 S.Ct. 716, 736, 89 L.Ed. 1051 (dissenting opinion). And what justification can there be for the Board's having exclusive jurisdiction of a combination one party to which is probably outside the Board's jurisdiction, see infra, pp. 330—331, but not of a combination both parties to which are clearly within the Board's jurisdiction? The only explanation I can conceive for these dubious distinctions is that the Court does not want to go so far as flatly to overrule some well-established decisions of this Court.2
64
I find it equally difficult to understand the Court's apparently limiting its pro tanto repeal of the antitrust laws to questions of injunctive relief. It is true that an order of divestiture or some other equitable remedy may be more effective to deter certain antitrust violations than either criminal or damages sanctions. But the difference in effectiveness is one only of degree. An air carrier is not likely to persist in a course of conduct if heavy criminal penalties and awards of treble damages may be visited upon it. But just this possibility the Court seems to allow. I find it hard to follow the Court's attempted justification for mutilating the antitrust laws in terms of avoiding clashes between two regimes of law, the administrative and the judicial, when, the mutilation achieved, the clashes remain acutely present. In part, I must conclude that the Court's artificial distinction again was prompted by a desire to skirt, however disingenuously, prior holdings.3 In addition, the Court had to conjure with the fact that the CAB's statute nowhere provides a remedy, damages or reparations, for past misconduct.
III.
65
I should also like to suggest the unreality of the Court's decision in the light of the particular circumstances of the instant case. By its decision today the Court brings to naught nine years of litigation. Yet these nine years actually represent only the most recent phase of a continuing problem first placed before the Civil Aeronautics Board 22 years ago.4 For 22 years Pan American World Airways has staved off the day of reckoning in respect to the tactics which, Judge Murphy found below, violated § 2 of the Sherman Act. Today's decision vindicates these tactics beyond Pan American's fondest expectations, for the problem is now back with the CAB which has from the outset protested its inability to deal with it.
66
This suit was instituted by the Government at the urging of the CAB, which in addition filed an amicus curiae brief in the District Court in support of the Government's position. And repeatedly over a period of many years, the Board has adverted to its felt helplessness in the face of the divided control of Panagra by two powerful corporations, one the dominant United States company in the field of foreign transportation.5 To be sure, we are not obliged to honor the Board's disinclination to assume jurisdiction. Trans-Pacific Airlines, Ltd., v. Hawaiian Airlines, Ltd., 174 F.2d 63 (C.A.9th Cir., 1949). But it is entitled to some weight, see 3 Davis, Administrative Law (1958), 14, and indeed, since the Board's position has been long and consistently adhered to, to great weight. United States v. Radio Corp. of America, 358 U.S. 334, 350, n. 18, 79 S.Ct. 457, 466, 3 L.Ed.2d 354. The search for a practical accommodation of court and agency, which is the problem of this case, is not advanced by our ignoring the agency's considered sense of self-limitation.
67
It is not as if the Board's hesitancy to move against the abuses disclosed by the record in this case were not based upon substantial considerations. We may concede the breadth of the Board's power under § 411 to remedy unfair methods of competition, which may sometimes be violations of the Sherman Act, yet still recognize the unsuitableness of such a remedy in the particular circumstances of this case. For one thing, I should think a proceeding respecting control of Panagra would be rather lopsided unless the Board had jurisdiction of Grace; but I am not sure that could be done. Section 411 only proscribes unfair methods of competition by air carriers and ticket agents. Grace is neither, unless it fits the broad language in which the Act defines an 'air carrier' as anyone 'who undertakes, whether directly or indirectly or by a lease or any other arrangement, to engage in air transportation.' 49 U.S.C. § 1301(3). It is not entirely clear that 'air carrier' may be read as including a 50% owner of an air carrier, for the Act in general does not purport to regulate stockholders of its subject carriers, and where it does, notably in § 408, it does so explicitly.6 The opinion of the Court sees fit not to resolve this jurisdictional difficulty. I fear the Board has solid justification for not proceeding against Pan American unless it can proceed against Grace as well. But at all events the Court's silence is sure to result in an added step in this already intolerably prolonged litigation.
68
A further basis for the Board's hesitancy is that the Board has no experience in the enforcement of the antitrust laws, because § 411 has only been used against common-law unfair competition, never against practices deemed unfairly competitive by virtue of the antitrust laws. Hale and Hale, Competition or Control IV: Air Carriers, 109 U. of Pa.L.Rev. 311, 346—347 (1961).7 Most of the legal issues which have arisen in the instant litigation—the right of a joint owner to exercise his negative control in an anti-competitive fashion, the substantiality of the commerce restrained as a result of the defendants' conduct, the relevant geographical and services markets, the appropriateness of divestiture as a remedy, and so forth—are typical antitrust problems and not at all typical airline law problems. The expertness required is that of the judge skilled in antitrust adjudication—not that of the Board, which, so far as I can tell, has never dealt with an antitrust problem.
69
Nor is remission of the instant case to the CAB necessary to protect the integrity of the Board's regulatory scheme for the airline industry. Pan American argues that if its holdings in Panagra are divested, Panagra will apply for and be granted terminal points in the continental United States, with the result that Pan American will be driven out of business on many routes, to the serious detriment of the airline industry. But there is more to acquiring a route certificate than applying for it. If Panagra, freed of Pan American's negative control applies for a northward extension of its routes, it will be open to Pan American to argue before the Board the unwisdom of its granting the application. A judicial order in the instant case would not affect a single route, but would simply free the process whereby routes are established and territories are divided from the obstructive effects of monopolistic tactics. Judicial enforcement of the Sherman Act here would thus remove the clog of monopolization from the administrative process—not disrupt that process. Cf. Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051. The Court's reliance on Texas & Pac. R. Co. v. Abilene Cotton Tie Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, and Keogh v. Chicago & N.W.R. Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183, is misplaced. The plaintiff in Keogh sought damages under the antiturst laws, complaining that but for the conspiracy the rates he had paid, though lawful because approved by the ICC, would have been lower. The Court held that the exclusive remedy for excessive rates had been vested by Congress in the ICC. It did not matter on what theory the shipper sought to recover; the courts had no power to undo a lawful rate by granting damages, whether on common-law grounds (as in Abilene) or under the antitrust laws. The Court in Keogh made very plain, however, that injunctive relief in respect of a conspiracy to raise rates might lie, at least if such relief was sought by the Government, as here. 260 U.S., at 161—162, 43 S.Ct., at 49. For (as Georgia shows) an injunction may be granted with no disturbance to the existing rate structure.
70
It should also be noted that the Court's decision today vindicates Pan American's hardly creditable 'tactic * * * characteristic of its litigious nature' of first raising the jurisdictional issue in a post-trial brief filed six years after the complaint. 193 F.Supp., at 46. Of course, we are obliged to consider such issues sua sponte. United States v. Western Pacific R. Co., 352 U.S. 59, 63, 77 S.Ct. 161, 164, 1 L.Ed.2d 126; Note, Regulated Industries and the Antitrust Laws: Substantive and Procedural Co-ordination, 58 Col.L.Rev. 673, 690 and n. 114 (1958). But I find it a wry commentary on the Court's result that every factor of fairness and practicality argues against our abdicating jurisdiction of the present case.
IV.
71
In seeking to accommodate the regulatory and antitrust regimes by means of pro tanto repeal of the antitrust laws, the Court does not tell us why it has departed from the usual pattern of preferring a more flexible technique of accommodation: that afforded by the doctrine of primary jurisdiction. See generally 3 Davis, Administrative Law (1958), 1—55. That doctrine requires that the courts abstain from proceeding in a case of which they have original jurisdiction, remitting the parties in the first instance to their rights and remedies before the agency, where necessary to protect the integrity of the regulatory scheme administered by the agency. Such a requirement of prior resort does not preclude a later judicial antitrust proceeding, but simply ensures that the later proceeding will fully recognize the agency's interest in the premises. The antitrust laws are in no wise repealed. Cf. Federal Maritime Bd. v. Isbrandtsen Co., 356 U.S. 481, 498—499, 78 S.Ct. 851, 862, 2 L.Ed.2d 926. This mode of resolving conflicts between court and agency avoids the practical and conceptual difficulties of pro tanto repeals by implication. Until today, the Court had never failed to invoke primary jurisdiction in preference to repeal by implication as a means of accommodating the antitrust and regulatory laws; I see no basis for deviation in the instant case from that salutary approach. Certainly the Court suggests none.
72
I must in candor add that to apply the doctrine of primary jurisdiction to the case at bar would be somewhat of an extension of our decisions in the area, so jealously have we guarded the obligation of judicial enforcement of the antitrust laws. The tendency of the cases has been to invoke the doctrine not when there are simply overlapping judicial and administrative remedies for the same conduct, as is the case here, but only when 'there is a possibility that a subsequent administrative decision would approve the questioned activities,' as is not true here, since the approval power vested in the CAB by § 414 does not include orders under § 411. Schwartz, Legal Restriction of Competition in the Regulated Industries: An Abdication of Judicial Responsibility, 67 Harv.L.Rev. 436, 464 (1954). Compare United States Nav. Co. v. Cunard S.S. Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408, and Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576, with United States v. Pacific & Artic Ry. & Nav. Co., 228 U.S. 87, 33 S.Ct. 443, 57 L.Ed. 742; Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051; United States v. Radio Corp. of America, 358 U.S. 334, 79 S.Ct. 457, 3 L.Ed.2d 354; and California v. Federal Power Comm'n, 369 U.S. 482, 82 S.Ct. 901, 8 L.Ed.2d 54. See generally Jaffe, Primary Jurisdiction Reconsidered: The Anti-Trust Laws, 102 U. of Pa.L.Rev. 577 (1954). But even if it would take some straining to fit the instant case within the established framework of the law of primary jurisdiction, what the Court has done today is a far graver departure from heretofore settled guideposts of the law.8
1
Another charge relates to alleged restraints on Panagra by its two stockholders which the District Court summarized as follows:
'To a large extent the evidence of restraints on Panagra in the categories of joint offices, communications, equipment, publicity and sales are matters of agreement that must be initially approved by the C.A.B. and to a large degree have been approved and others are awaiting approval or extension of approval previously granted.' 193 F.Supp. 18, 22.
2
Panagra was organized January 25, 1929, and received on March 2, 1929, an air mail contract from the Postmaster General (see 45 Stat. 248, 1449) even though it was not the lowest bidder. See 36 Op.Atty.Gen. 33.
3
The District Court said:
'The award of a Post Office contract for each sector of South America, in effect, assured the American contractor of a monopoly in that sector insofar as American flag operations were concerned, and the invaluable assistance of the State Department and Post Office Department in the carrier's relations with the countries along its route.' 193 F.Supp. 18, 31.
4
The District Court said:
'The State Department actively assisted defendants in defeating the foreign company designs for monopoly concessions and in securing American operating rights along their routes. The contracts awarded by the Post Office Department defined the international route of the contractor, and so to a large extent defined the area of development and expansion of any such contractor. The Post Office policy during the years 1928 to 1938 was to award but one contract for each route, in effect to subsidize one American carrier in a particular sector. The ideal route pattern as envisaged by the C.A.B. today is to have two carriers, Pan American and a merged 'Panagra-Braniff,' and the only difference from that existing prior to Braniff's entry would be the extension of 'Panagra-Braniff' to the United States. Competition among American carriers under the policy of the Post Office Department under the foreign mail contracts, was economically impossible, and most likely detrimental to the sound development of American flag service, which would have complicated or embarrassed the effective rendition of diplomatic assistance from the State Department, and actually cause a waste of public monies. Competition between Panagra and Pan American certainly was not encouraged by this government. On the contrary, there appears to emerge from the evidence presented a definite policy of the government approving a sort of 'zoning' for the operations of the American international carriers in the nature of east and west coast spheres as was ultimately arranged between Pan American and Panagra. Agreement not to parallel each other's service in South America seems perfectly consistent with the air transportation policy of this country in those formative years.' 193 F.Supp. 18, 34.
5
See Panagra Terminal Investigation, 4 C.A.B. 670, remanded W. R. Grace & Co. v. C.A.B., 154 F.2d 271. We granted certiorari, 328 U.S. 832, 66 S.Ct. 1378, 90 L.Ed. 1608, and later dismissed the case as moot, 332 U.S. 827, 68 S.Ct. 203, 92 L.Ed. 401, because Pan American and Panagra had settled their dispute through an agreement approved by the C.A.B. (see note 15, infra), after the C.A.B. had said that joint control of Panagra by Pan American and Grace was 'unhealthy' (4 C.A.B. 670, 678) and that 'the joint owners cooperatively should enable Panagra to apply for access to the east coast of the United States.' Additional Service to Latin America, 6 C.A.B. 857, 914.
6
The Board has held that § 408(a) is not retroactive. Railroad Control of Northeast Airlines, 4 C.A.B. 379, 386. And see National Air Freight Forwarding Corp. v. C.A.B., 90 U.S.App.D.C. 330, 335, 197 F.2d 384, 389.
7
The Sherman Act was applied to pre-1890 combinations: United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 342, 17 S.Ct. 540, 559, 41 L.Ed. 1007; Waters-Pierce Oil Co. v. Texas (No. 1), 212 U.S. 86, 107—108, 29 S.Ct. 220, 225—226, 53 L.Ed. 417 (Texas version of the Sherman Act); see also Cox v. Hart, 260 U.S. 427, 435, 43 S.Ct. 154, 157, 67 L.Ed. 332; American P. & L. Co. v. Securities & Exchange Comm'n, 141 F.2d 606, 625 (C.A.1st Cir.), affirmed, 329 U.S. 90, 67 S.Ct. 133, 91 L.Ed. 103.
Moreover, as we recently stated in United States v. E. I. duPont DeNemours & Co., 353 U.S. 586, 607, 77 S.Ct. 872, 884, 1 L.Ed.2d 1057, '* * * the test of a violation of § 7 is whether, at the time of suit, there is a reasonable probability that the acquisition is likely to result in the condemned restraints.' (Italics added.)
8
The original Act took out from under the jurisdiction of the Federal Trade Commission, 'air carriers and foreign air carriers subject to the Civil Aeronautics Act of 1938.' 52 Stat. 973, 1028, § 1107(f).
9
Cf. Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051, holding that the Interstate Commerce Act is no bar to an antitrust suit against a carrier; United States v. R.C.A., 358 U.S. 334, 79 S.Ct. 457, 3 L.Ed.2d 354, holding that the Federal Communications Act is no bar to an antitrust suit against TV and radio licensees; United States v. Borden Co., 308 U.S. 188, 195—199, 60 S.Ct. 182, 188, 84 L.Ed. 181, holding that neither the Agricultural Adjustment Act nor the Capper-Volstead Act displaced the Sherman Act; and California v. Federal Power Comm'n, 369 U.S. 482, 82 S.Ct. 901, 8 L.Ed.2d 54, holding that the Clayton Act was not displaced by the Natural Gas Act. And see Maryland and Virginia Milk Producers Assn. v. United States, 362 U.S. 458, 80 S.Ct. 847, 4 L.Ed.2d 880.
10
In Pan-American-Matson-Inter-Island Contract, 3 C.A.B. 540, the Board rejected a proposal for the creation of a joint company similar to Panagra for service to Hawaii. Such joint ventures, as we note in the opinion, may be combinations in violation of the antitrust laws. See Timken Roller Bearing Co. v. United States, 341 U.S. 593, 598, 71 S.Ct. 971, 974, 95 L.Ed. 1199.
11
It should be noted that the result in Georgia v. Pennsylvania R. Co., supra, might today be different as a result of the Act of June 17, 1948, 62 Stat. 472, which gives the Interstate Commerce Commission authority to approve combinations of the character involved in that case and give them immunity from the antitrust laws. See S.Rep.No.1511, 79th Cong., 2d Sess.; H.R.Rep.No.1212, 79th Cong., 1st Sess.; H.R.Rep.No.1100, 80th Cong., 1st Sess. This Act was passed over a presidential veto. See 94 Cong.Rec. 8435, 8633.
12
And see the debates in 51 Cong.Rec. 11874—11876; 12022 12025; 12026—12032.
13
We note, in addition, that the Board itself has assumed jurisdiction under changed circumstances in those areas covered by § 408, in which it has found only prospective authority. Railroad Control of Northeast Airlines, supra, note 6.
14
An 'air carrier' is defined in § 1(2) as 'any citizen of the United States who undertakes, whether directly or indirectly or by a lease or any other arrangement, to engage in air transportation: Provided, That the Authority may by order relieve air carriers who are not directly engaged in the operation of aircraft in air transportation from the provisions of this Act to the extent and for such periods as may be in the public interest.' Whether there might be 'a reasonable basis in law' (National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111, 131, 64 S.Ct. 851, 860, 88 L.Ed. 1170) for a Board conclusion that Grace is an 'air carrier' by reason of its negative control over Panagra is a matter on which we intimate no view. We mention the matter so as not to foreclose the question by any implication drawn from our separate treatment of common carriers and air carriers.
15
Phases of issues related to those in the present litigation have indeed been before the Board. Note 5, supra. It held in an investigation that it had no authority to accomplish the compulsory extension of Panagra's route to the United States (Panagra Terminal Investigation, 4 C.A.B. 670), a ruling reviewed by the Court of Appeals which remanded the matter to the Board for further consideration. W. R. Grace & Co. v. Civil Aeronautics Board, 2 Cir., 154 F.2d 271. Before that controversy had been resolved, Pan American and Panagra entered a 'through flight agreement' which in essence provided that Pan American would charter any aircraft operated by Panagra from the south to the Canal Zone and operate it on its schedules to the United States. This agreement, with exceptions not material here, was approved by the Board. Pan American-Panagra Agreement, 8 C.A.B. 50.
16
For a discussion of the Board's policy in issuing certificates to competing air carriers, see Hale and Hale, Competition or Control IV: Air Carriers, 109 U. of Pa.L.Rev. 311, 314—318.
17
We have heretofore analogized the power of administrative agencies to fashion appropriate relief to the power of courts to fashion Sherman Act decrees. Federal Trade Comm'n v. Mandel Bros., 359 U.S. 385, 392—393, 79 S.Ct. 818, 824, 3 L.Ed.2d 893. Authority to mold administrative decrees is indeed like the authority of courts to frame injunctive decrees (National Labor Relations Board v. Express Pub. Co., 312 U.S. 426, 433, 436, 61 S.Ct. 693, 699, 85 L.Ed. 930; National Labor Relations Board v. Cheney Lumber Co., 327 U.S. 385, 66 S.Ct. 553, 90 L.Ed. 739) subject of course to judicial review. Dissolution of unlawful combinations, when based on appropriate findings (Schine Chain Theatres v. United States, 334 U.S. 110, 129—130, 68 S.Ct. 947, 958, 92 L.Ed. 1245), is an historic remedy in the antitrust field, even though not expressly authorized. United States v. Crescent Amusement Co., 323 U.S. 173, 189, 65 S.Ct. 254, 262, 89 L.Ed. 160. Likewise, the power to order divestiture need not be explicitly included in the powers of an administrative agency to be part of its arsenal of authority, as we held only the other day in Gilbertville Trucking Co. v. United States, 371 U.S. 115, 83 S.Ct. 217. Cf. Federal Trade Comm'n v. Eastman Kodak Co., 274 U.S. 619, 47 S.Ct. 688, 71 L.Ed. 1238.
18
There is no express authority for divestiture in either the Sherman or Clayton Act. See 15 U.S.C. §§ 4, 25. The reasoning that supports such a remedy under those Acts is as applicable to the Board as it is to the courts, and it is as valid today as it was when originally stated by the first Justice Harlan:
'All will agree that if the * * * Act be constitutional, and if the combination in question be in violation of its provisions, the courts may enforce the provisions of the statute by such orders and decrees as are necessary or appropriate to that end and as may be consistent with the fundamental rules of legal procedure.' Northern Securities Co. v. United States, 193 U.S. 197, 344, 24 S.Ct. 436, 459, 48 L.Ed. 679.
19
If it were clear that there was a remedy in this civil antitrust suit that was not available in a § 411 proceeding before the C.A.B., we would have the kind of problem presented in Hewitt-Robins, Inc. v. Eastern Freight-Ways, Inc., 371 U.S. 84, 83 S.Ct. 157, where litigation is held by a court until the basic facts and findings are first determined by the administrative agency, so that the judicial remedy, not available in the other proceeding, can be granted. Nor is this a case where a proceeding before a second tribunal is desirable (Thomson v. Magnolia Petroleum Co., 309 U.S. 478, 60 S.Ct. 628, 84 L.Ed. 876) or necessary (General Am. Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 60 S.Ct. 325, 84 L.Ed. 361; Thompson v. Texas Mexican R. Co., 328 U.S. 134, 150—151, 66 S.Ct. 937, 947, 90 L.Ed. 1132) for an authoritive determination of a legal question controlling in the first tribunal.
Dismissal of antitrust suits, where an administrative remedy has superseded the judicial one, is the usual course. See United States Nav. Co. v. Cunard S.S. Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408; Far East Conference v. United States, 342 U.S. 570, 577, 72 S.Ct. 492, 495, 96 L.Ed. 576.
1
Delta Air Lines, Inc. (Delta) is authorized to serve Caracas and certain Caribbean points on its Caribbean route 114 from Houston and New Orleans; and Aerovias Sud Americana, Inc. (ASA) is authorized to provide cargo and mail service (on a nonsubsidy basis) between Florida points and points in Central and South America. The only South American points presently served by ASA are Quite and Guayaquil, Ecuador.
2
Reopened New York-Balboa Through Service Case, 18 C.A.B. 501.
3
The powers granted the Board in the Federal Aviation Act of 1958 and its predecessor, the Civil Aeronautics Act of 1938, do not include authority to compel merger, or to terminate the entire route of a carrier.
4
The District Court for the Southern District of New York handed down a decision on May 8, 1961, United States v. Pan American World Airways, Inc., 193 F.Supp. 18, W. R. Grace and Company, and Pan American-Grace Airways, Inc., 368 U.S. 964, 82 S.Ct. 438, 7 L.Ed.2d 395; 368 U.S. 980, 82 S.Ct. 596. Pan American filed a notice of appeal in the Supreme Court on May 11, 1961.
5
The Attorney General had sought divestiture by both Grace and Pan American.
6
Pending certificate applications involving service between the United States and South America will be considered for consolidation upon appropriate request submitted within 20 days of the date of service of this order. Applications not moved for consolidation will be subject to dismissal for lack of prosecution.
1
See T.I.M.E. Inc. v. United States, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952, and cases cited therein. At least one Federal Court of Appeals has held that the CAB's lack of power to award money reparations leaves open a court action for damages sounding in tort. Fitzgerald v. Pan American World Airways, Inc., 229 F.2d 499 (C.A.2d Cir., 1956).
2
See United States v. Pacific & Arctic Ry. & Nav. Co., 228 U.S. 87, 105, 33 S.Ct. 443, 448, 57 L.Ed. 742; Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051; Keogh v. Chicago & N.W.R. Co., 260 U.S. 156, 161—162, 43 S.Ct. 47, 49, 67 L.Ed. 183; Central Transfer Co. v. Terminal Railroad Assn., 288 U.S. 469, 475, 53 S.Ct. 444, 446, 77 L.Ed. 889; Terminal Warehouse Co. v. Pennsylvania R. Co., 297 U.S. 500, 513—515, 56 S.Ct. 546, 552, 80 L.Ed. 827. The Court's handling of Georgia v. Pennsylvania R. Co., supra, seems to me particularly disingeneous. The Court concedes that a conspiracy to secure CAB approval of illicit agreements might form the predicate of an anti-trust suit, yet nowhere explains why the use of negative control to further a scheme of monopolization by preventing CAB approval of a route extension for Panagra cannot form such a predicate. Furthermore, it is not the case that the ICC was helpless to grant the relief sought in Georgia v. Pennsylvania R. Co. The Court conceded that the Commission had 'authority to remove discriminatory rates of the character alleged to exist here.' 324 U.S., at 459, 65 S.Ct., at 727. To be sure, the Commission did not have authority to regulate rate-fixing combinations as such. But neither has the CAB authority to prohibit violations of the antitrust laws as such; it is limited by its mandate, so the Court holds, to facilitating 'competition to the extent necessary.'
3
See, e.g., United States v. Pacific & Arctic Ry. & Nav. Co., 228 U.S. 87, 33 S.Ct. 443, 57 L.Ed. 742.
4
On December 16, 1941, Grace filed a petition with the CAB requesting modification of Panagra's certificate so as to provide for a terminal in the continental United States; on April 29, 1942, Grace requested the Board to proceed under § 411 to order Pan American to divest itself of its holdings in Panagra. See W. R. Grace & Co. v. CAB, 154 F.2d 271, 274 (C.A.2d Cir., 1946), cert. dismissed for mootness, sub nom. Pan American Airways Corp. v. W. R. Grace & Co., 332 U.S. 827, 68 S.Ct. 203, 92 L.Ed. 401.
5
See Panagra Terminal Investigation, 4 C.A.B. 670, 678 (1944); Additional Service to Latin America, 6 C.A.B. 857, 913—914 (1946); Pan American-Panagra Agreement, 8 C.A.B. 50, 61 (1947); New York-Balboa Through Service Proceeding, Reopened, 18 C.A.B. 501, 504—506 (1954); Reopened New York-Balboa Through Service Proceeding, 20 C.A.B. 493, 516—517 (1954). Cf. New York-Mexico City Nonstop Service Case, 25 C.A.B. 323 (1957).
6
For example:
'It shall be unlawful unless approved by order of the Board as provided in this section—
'(2) For any air carrier, any person controlling an air carrier, any other common carrier, or any person engaged in any other phase of aeronautics, to purchase, lease, or contract to operate the properties * * * of any air carrier * * *.' 49 U.S.C. § 1378(a)(2).
7
Also, although the CAB has express authority to enforce the Clayton Act, see 15 U.S.C. § 21, I have found no instance of its ever having attempted to do so.
8
Since the Court disposed of the case at bar on jurisdictional grounds and did not reach the merits of the antitrust issues, I deem it inappropriate for me to intimate any view of those merits.
| 78
|
371 U.S. 555
83 S.Ct. 520
9 L.Ed.2d 523
MERCANTILE NATIONAL BANK AT DALLAS, Appellant,v.C. H. LANGDEAU. REPUBLIC NATIONAL BANK OF DALLAS, Appellant, v. C. H. LANGDEAU.
Nos. 14, 15.
Reargued Dec. 5, 1962.
Decided Jan. 21, 1963.
Hubert D. Johnson and Marvin S. Sloman, Dallas, Tex., for appellants.
William E. Cureton, Waco, Tex., and Quentin Keith, Beaumont, Tex., for appellee.
Mr. Justice WHITE delivered the opinion of the Court.
1
Appellee, the receiver for a Texas insurance company in liquidation in the Ninety-eighth District Court of Travis County, Texas, brought an action in that court against the two national banks who are appellants here and against 143 other parties, alleging a conspiracy to defraud the insurance company and claiming damages jointly and severally in the amount of 15 million dollars. Each appellant filed a plea of privilege, as provided by the Texas Rules of Civil Procedure, asserting that it was located in Dallas County, Texas, and was therefore immune from suit in Travis County under the provisions of Rev.Stat. § 5198 (1878), 12 U.S.C. § 94, which provides:
2
'Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.'1
3
Appellee, on the other hand, relied upon Texas Insurance Code, Art. 21.28, Section 4, V.A.T.S. of which provides:
4
'(f) New Lawsuits. The court of competent jurisdiction of the county in which the delinquency proceedings are pending under this Article shall have venue to hear and determine all action or proceedings instituted after the commencement of delinquency proceedings by or against the insurer or receiver.'
5
The pleas of the banks were overruled and they appealed, it being agreed that the only issue for review was whether 12 U.S.C. § 94 entitled appellants to have the action transferred to the state court in Dallas County or whether the state venue provision contained in § 4(f) of the Insurance Code was controlling. The Court of Civil Appeals reversed and sustained the pleas of privilege on the ground that 12 U.S.C. § 94 required an action against a national bank to be brought in the county of its location. The Texas Supreme Court, however, refused to accept § 94 as prohibiting a suit against petitioners in Travis County when a state venue statute expressly permitted it. 161 Tex. 349, 341 S.W.2d 161. On the one hand, the court interpreted § 94 as permissive only, not mandatory, and on the other, as having been repealed by an omnibus repealing clause in an 1882 statute2 subsequently absorbed into 28 U.S.C. § 1348.3 Appellants brought the cases here under 28 U.S.C. § 1257(2) and, because of the finality question, we postponed ruling upon our jurisdiction until the merits were considered. 368 U.S. 809, 82 S.Ct. 32, 7 L.Ed.2d 19.
I.
6
The question of our appellate jurisdiction is quite similar to the one considered in Local No. 438 Const. and General Laborers' Union, AFL—CIO v. Curry, 371 U.S. 543, 83 S.Ct. 531, although there the jurisdiction of any and all state courts was at issue and here the inquiry is only as to which state court has proper venue to entertain an action against two national banks. Nonetheless, a substantial claim, appealable under state law, is made that a federal statute, rather than a state statute, determines in which state court a national bank may be sued and, as in Curry, prohibits further proceedings against the defendants in the state court in which the suit is now pending. This is a separate and independent matter, anterior to the merits and not enmeshed in the factual and legal issues comprising the plaintiff's cause of action. Moreover, we believe that it serves the policy underlying the requirement of finality in 28 U.S.C. § 1257 to determine now in which state court appellants may be tried rather than to subject them, and appellee, to long and complex litigation which may all be for naught if consideration of the preliminary question of venue is postponed until the conclusion of the proceedings. Accordingly, we note our jurisdiction to hear this appeal under § 1257(2) and turn now to the question of whether appellants may be sued in the Travis County court.
II.
7
The roots of this problem reach back to the National Banking Act of 1863, 12 Stat. 665, replaced a year later by the Act of 1864, 13 Stat. 99.4 National banks are federal instrumentalities and the power of Congress over them is extensive. 'National banks are quasipublic institutions, and for the purpose for which they are instituted are national in their character, and, within constitutional limits, are subject to the control of Congress, and are not to be interfered with by state legislative or judicial action, except so far as the lawmaking power of the government may permit.' Van Reed v. People's Nat. Bank, 198 U.S. 554, 557, 25 S.Ct. 775, 776, 49 L.Ed. 1161. Unquestionably Congress had authority to prescribe the manner and circumstances under which the banks could sue or be sued in the courts and it addressed itself to this matter in the 1863 Act.
8
By § 11 of that Act the banking associations were given general corporate powers, among them the power to 'sue and be sued * * * in any court of law or equity as fully as natural persons.'5 This section, if the teaching of Bank of the United States v. Deveaux, 5 Cranch 61, 3 L.Ed. 38, is observed, conferred no jurisdiction upon the courts but merely endowed the banks with power to sue and be sued in the courts as corporations. Congress, however, had more to say about this subject. Section 59 of the 1863 Act6 provided that suits by and against any association under the Act could be had in any federal court held within the district in which the association was established. No mention was made of suits in state courts. If the law had remained in this form, there might well have been grave doubt about the suability of national banks in the state courts, as this Court noted in First Nat. Bank of Bay City v. Fellows ex rel. Union Trust Co., 244 U.S. 416, 428, 37 S.Ct. 734, 739, 61 L.Ed. 1233.7 The next year, however, Congress expressly exercised its power to permit national banks to be sued in certain state courts as well as in federal courts. Section 57 of the 1864 Act8 carried forward the former § 59 and also added that 'suits * * * may be had * * * in any state, county, or municipal court in the county or city in which said association is located, having jurisdiction in similar cases * * *.' The phrase 'suits * * * may be had' was, in every respect, appropriate language for the purpose of specifying the precise courts in which Congress consented to have national banks subject to suit and we believe Congress intended that in those courts alone could a national bank be sued against its will.
9
We would not lightly conclude that a congressional enactment has no purpose or function. We must strive to give appropriate meaning to each of the provisions of Title 12 and its predecessors. See United States v. Menasche, 348 U.S. 528, 539, 75 S.Ct. 513, 520, 99 L.Ed. 615; Inhabitants of Montclair v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 394, 27 L.Ed. 431. Appellee, however, would have us hold that any state court could entertain a suit against a national bank as long as state jurisdictional and venue requirements were otherwise satisfied. Such a ruling, of course, would render altogether meaningless a congressional enactment permitting suit to be brought in the bank's home county. This we are unwilling to do, particularly in light of the history of § 57. That section was omitted from Title 62 (National Banks) of the Revised Statutes of 1873, but at the same time, there were included in Title 13 (The Judiciary) provisions granting the federal courts jurisdiction over suits by and against national banks brought in the district of their residence.9 These express provisions relating to the jurisdiction of the federal courts apparently did not solve the entire problem, for § 5198 of Title 62, Revised Statutes, was amended in 1875 by adding to it provisions substantially identical to § 57 of the 1864 Act.10 Thus for a second time Congress specified the precise federal and state courts in which suits against national banks could be brought.
10
All of the cases in this Court which have touched upon the issue here are in accord with our conclusion that national banks may be sued only in those state courts in the county where the banks are located.11 Notable among these is First Nat. Bank of Charlotte v. Morgan, 132 U.S. 141, 10 S.Ct. 37, 33 L.Ed. 282, which involved a suit against a national bank brought in a county other than that in which the bank was located. This Court stated that § 57 conferred a personal privilege on the banks exempting them from suits in state courts outside their home counties. However, since the bank in that case had not objected at the trial to the location of the suit but raised the issue for the first time on appeal, the Court held that the § 57 privilege had been waived.12
11
Thus, we find nothing in the statute, its history or the cases in this Court to support appellee's construction of this statute. On the contrary, all these sources convince us that the statute must be given a mandatory reading.13
12
The consequence of our decision, appellee says, is that a litigant will be unable to join two national banks in the same action in the state courts if they are located in different counties or in the federal courts if they are located in different districts. But aside from not being presented by these cases, such a situation is a matter for Congress to consider. Cf. 28 U.S.C. §§ 1391(a), (b), 1401; Greenberg v. Giannini, 140 F.2d 550, 552, 152 A.L.R. 966 (C.A.2d Cir.). See also, Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106.
13
Similarly, even if all of the 145 defendants may not be sued in one proceeding in Dallas County with the same facility as they may in Travis County, this, of course, is insufficient basis for departing from the command of the federal statute. Nevertheless, though we have no intention of venturing an opinion on matters of Texas procedure, particularly when the parties were in disagreement about them in argument before this Court, we are aware of the recent ruling of the Texas Supreme Court, Langdeau v. Burke Investment Co., Tex., 358 S.W.2d 553, holding Texas Insurance Code, Art. 21.28(4), permissive, not mandatory, thus not restricting the receiver to suits in the receivership court. We have also noted that Texas procedural rules might very well permit the transfer of the entire case to Dallas County. Tex. Rules Civ.Proc. 89;14 Tunstill v. Scott, 138 Tex. 425, 160 S.W.2d 65; Terrell v. Kohler, 48 S.W.2d 531 (Tex.Civ.App.). Moreover, Tex.Rules Civ.Proc. 16415 appears to permit dismissal of suits without prejudice when a plea of improper venue is sustained, see Luck v. Welch, 243 S.W.2d 589 (Tex.Civ.App., ref. n.r.e.); Wiley v. Joiner, 223 S.W.2d 539 (Tex.Civ.App.), opening the way for a new suit which Article 1995(4)16 indicates could be brought in Dallas County.17
14
Appellee, finally, attempts to avoid his venue problem entirely by denying the very existence of § 5198, Rev.Stat. (1878). Section 5198, appellee says, was repealed by the proviso to § 4 of the Act of July 12, 1882:
15
'(T)he jurisdiction for suits hereafter brought by or against any association * * * shall be the same as, and not other than, the jurisdiction for suits by or against banks not organized under any law of the United States * * *. And all laws and parts of laws of the United States inconsistent with this proviso be, and the same are hereby, repealed.'18
16
It is also said that 28 U.S.C. § 1348,19 derived from the Act of March 3, 1887,20 re-enacts § 4 of the 1882 Act, in somewhat modified form, thus continuing the congressional intent to repeal § 5198 to the extent that it prescribes the venue of suits in state courts. See 161 Tex., at 356, 341 S.W.2d, at 166.
17
Since § 4 of the Act of 1882 and its successors do not expressly repeal § 5198, appellee's contention is necessarily one of implied repeal requiring some manifest inconsistency or positive repugnance between the two statutes. United States v. Borden Co., 308 U.S. 188, 198—199, 60 S.Ct. 182, 188, 84 L.Ed. 181. We find neither here. Section 5198, as construed in the First Nat. Bank of Charlotte case, is essentially a venue statute governing the proper location of suits against national banks in either federal or state courts, whereas § 4 of the 1882 Act and the 1887 Act were designed to overcome the effect of §§ 563 and 629 Rev.Stat.21 which allowed national banks to sue and be sued in the federal district and circuit courts solely because they were national banks, without regard to diversity, amount in controversy or the existence of a federal question in the usual sense. Section 4 apparently sought to limit, with exceptions, the access of national banks to, and their suability in, the federal courts to the same extent to which non-national banks are so limited.22
18
Decisions of this Court have recognized that § 4 purported to deal with no more than matters of federal jurisdiction. As we observed in Continental National Bank of Memphis v. Buford, 191 U.S. 119, 123—124, 24 S.Ct. 54, 56, 48 L.Ed. 119:
19
'The necessary effect of this legislation was to make national banks * * * citizens of the states in which they were respectively located, and to withdraw from them the right to invoke the jurisdiction of the circuit courts of the United States simply on the ground that they were created by, and exercised their powers under, acts of Congress. No other purpose can be imputed to Congress than to effect that result.' See also Leather Manufacturers' Nat. Bank v. Cooper, 120 U.S. 778, 7 S.Ct. 777, 30 L.Ed. 816. Moreover, nothing in the subsequent history of this statute, now 28 U.S.C. § 1348, warrants the conclusion that Congress sought, even by implication, to relax the venue restrictions of § 5198.
20
The provisions of § 5198 are fully effective and must be recognized when they are duly raised. The judgments of the Texas Supreme Court are reversed and the causes remanded for further proceedings not inconsistent with this opinion.
21
Reversed and remanded.
22
Mr. Justice BLACK and Mr. Justice DOUGLAS, while agreeing with the Court that the judgments are 'final,' dissent on the merits of the controversy.
23
Mr. Justice CLARK took no part in the consideration or decision of these cases.
24
(For dissenting opinion of Mr. Justice HARLAN, see post, p. 572.)
APPENDIX TO OPINION OF THE COURT.
1. The Act of February 25, 1863, c. 58:
25
'Sec. 11. And be it further enacted, That every association formed pursuant to the provisions of this act may make and use a common seal, and shall have succession by the name designated in its articles of association and for the period limited therein, not, however, exceeding twenty years from the passage of this act; by such name may make contracts, sue and be sued, complain and defend in any court of law or equity as fully as natural persons * * *.' 12 Stat. 668.
26
'Sec. 59. And be it further enacted, That suits, actions, and proceedings by and against any association under this act may be had in any circuit, district, or territorial court of the United States held within the district in which such association may be established.' 12 Stat. 681.
2. The Act of June 3, 1864, c. 106:
27
'Sec. 8. * * * Such association * * * may make contracts, sue and be sued, complain and defend, in any court of law and equity as fully as natural persons.' 13 Stat. 101; Rev.Stat. § 5136 (1873).
28
'Sec. 57. * * * That suits, actions, and proceedings, against any association under this act, may be had in any circuit, district, or territorial court of the United States held within the district in which such association may be established; or in any state, county, or municipal court in the county or city in which said association is located, having jurisdiction in similar cases: Provided, however, That all proceedings to enjoin the comptroller under this act shall be had in a circuit, district, or territorial court of the United States, held in the district in which the association is located.' 13 Stat. 116—117.
29
3. Section 57 was omitted from Title 62, National Banks, in the Revised Statutes of 1873. It was added to § 5198 of Title 62, National Banks, by the Act of February 18, 1875, c. 80, 18 Stat. 320. Section 5198, as amended, reads as follows:
30
'Sec. 5198. The taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same; provided such action is commenced within two years from the time the usurious transaction occurred. That suits, actions, and proceedings against any association under this title may be had in any circuit, district, or territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.' (Amendment in italics.)
31
4. The portion of § 5198, Rev.Stat. (1878), relating to suits in federal and state courts, derived from § 57 of the 1864 Act, now appears as 12 U.S.C. § 94:
32
's 94. Venue of suits
33
'Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.'
34
Title 12 has not as yet been enacted into positive law.
35
5. Revised Statutes of 1873, Title 13, The Judiciary, c. 3, District Courts—Jurisdiction.
36
'Sec. 563. the district courts shall have jurisdiction as follows: * * * Fifteenth. Of all suits by or against any association established under any law providing for national banking associations within the district for which the court is held.'
37
Revised Statutes of 1873, Title 13, The Judiciary, c. 7, Circuit Court—Jurisdiction.
38
'Sec. 629. The circuit courts shall have original jurisdiction as follows: * * * Tenth. Of all suits by or against any banking association established in the district for which the court is held, under any law providing for national banking associations.'
39
These provisions were derived from that part of § 57 of the 1864 Act which conferred jurisdiction on the federal courts.
40
6. Act of July 12, 1882, c. 290, 22 Stat. 162, an Act to enable national banking associations to extend their corporate existence, and for other purposes. Section 4 of that Act contained the following proviso:
41
'* * * Provided, however, That the jurisdiction for suits hereafter brought by or against any association established under any law providing for national-banking associations, except suits between them and the United States, or its officers and agents, shall be the same as, and not other than, the jurisdiction for suits by or against banks not organized under any law of the United States which do or might do banking business where such national-banking associations may be doing business when such suits may be begun: And all laws and parts of laws of the United States inconsistent with this proviso be, and the same are hereby, repealed.'1 22 Stat. 163.
42
7. Act of March 3, 1887, c. 373, as amended by the Act of August 13, 1888, c. 866.
43
'Sec. 4. That all national banking associations established under the laws of the United States shall, for the purposes of all actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the States in which they are respectively located; and in such cases the circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same State.
44
'The provisions of this section shall not be held to affect the jurisdiction of the courts of the United States in cases commenced by the United States or by direction of any officer thereof, or cases for winding up the affairs of any such bank.'2 25 Stat. 436.
45
8. 28 U.S.C. § 1348 contains the present version of the matters covered in the Acts of 1882, 1887 and 1888:
46
's 1348. Banking association as party
47
'The district courts shall have original jurisdiction of any civil action commenced by the United States, or by direction of any officer thereof, against any national banking association, any civil action to wind up the affairs of any such association, and any action by a banking association established in the district for which the court is held, under chapter 2 of Title 12, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by such chapter.
48
'All national banking associations shall, for the purposes of all other actions by or against them, be deemed citizens of the States in which they are respectively located.'
49
Mr. Justice HARLAN, dissenting.
50
The Court's opinion in these appeals, and some of the things said in Local No. 438 Const. and General Laborers' Union, AFL—CIO v. Curry, 371 U.S. 542, 83 S.Ct. 531, cut deeply into the statutory requirement of 'finality' limiting our jurisdiction to review state court judgments.1
51
That requirement is more than a technical rule of procedure, yielding when need be to the exigencies of particular situations. Rather, it is a long-standing and healthy federal policy that protects litigants and courts from the disruptions of piecemeal review and forecloses this Court from passing on constitutional issues that may be dissipated by the final outcome of a case, thus helping to keep to a minimum undesirable federal-state conflicts. In this instance it precludes, in my opinion, the exercise of our appellate jurisdiction at this stage of the proceedings.
52
The state court judgments now sought to be reviewed are nothing more than a determination that venue was properly laid in the county where suit against these appellants was brought. Such a determination, being tantamount to a denial of a motion to dismiss is a classic example of an interlocutory ruling that is only a step towards ultimate disposition and is not in itself reviewable as a final judgment. See Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911; 6 Moore, Federal Practice 54.12(1), 54.14; see also Clinton Foods v. United States, 4 Cir., 188 F.2d 289, 291 -292, and cases cited therein.2 It fits squarely within the general rule that a judgment is not final unless it terminates the litigation and leaves nothing to be done but to enforce by execution what has been demanded. See Parr v. United States, 351 U.S. 513, 76 S.Ct. 912, 100 L.Ed. 1377.
53
It is true that several specific, and narrowly circumscribed, exceptions to this general rule have been developed in order to deal with extraordinary situations where a judgment is final in substance although not in form. But these appeals do not fall within any of these exceptions.
54
Thus this is not a situation in which what remains to be done in the state courts is a mere formality, or in which the appellants concede that their whole case must stand or fall on the federal claim. Compare Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80; Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 73 S.Ct. 749, 97 L.Ed. 1094; Local No. 438 Const. and General Laborers' Union, AFL—CIO v. Curry, 371 U.S. 542, 83 S.Ct. 531. Quite the contrary, appellants vigorously deny their liability on the merits of the appellee's claim.
55
Nor is this a case like Radio Station WOW v. Johnson, 326 U.S. 120, 65 S.Ct. 1475, 89 L.Ed. 2092, where the challenged order required an immediate transfer of property, and where the remaining matters left to be disposed of in the state court were wholly unrelated, would almost certainly have raised no federal question, and could not have mooted the question sought to be reviewed. Here, a victory for appellants on the merits would clearly moot the federal question before us today. 'It is of course not our province to discourage appeals. But for the soundest of reasons we ought not to pass on constitutional issues before they have reached a definitive stop.' Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 71, 68 S.Ct. 972, 978, 92 L.Ed. 1212.
56
On the other hand, if appellants lost on the merits, the venue question raised in the present appeals would then be open for review by this Court. Hence the controversy is wholly different from Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528, where the challenged order would not have been merged in the final judgment and where, unless immediate review had been granted, no appellate determination of the right claimed could ever have been obtained.
57
Failing to come within any of these limited exceptions, appellants fall back on the familiar assertion that they should not be subjected to a burdensome trial in the wrong forum, a claim which the Court finds compelling. But surely such a claim cannot be accepted, for there is a large variety of situations in which a ruling on a preliminary matter will determine whether or not the case is to continue; yet a decision that does not definitively terminate the case is plainly not final. To rely on the hardship of being subjected to trial is to do away with the distinction between interlocutory and final orders. It is for this reason that the Court has always held that the hazard of being subjected to trial does not invest a preliminary ruling with the finality requisite to appeal. E.g., Parr v. United States, 351 U.S. 513, 519—520, 76 S.Ct. 912, 916—917, 100 L.Ed. 1377.
58
This is not a case of first impression. In Cincinnati Street R. Co. v. Snell, 179 U.S. 395, 21 S.Ct. 205, 45 L.Ed. 248, the railway company sought to appeal from a determination by the highest court of the State directing a change of venue and remanding the case for further proceedings. The railway company contended that the state law under which the change of venue had been ordered was unconstitutional. The case is thus squarely in point, since the appellants here are also challenging the constitutionality of the application of local venue provisions. This Court unanimously dismissed the writ of error for lack of finality, stating:
59
'It is true that the order appealed from finally adjudges that a change of venue should have been allowed; but the same comment may be made upon dozens of interlocutory orders made in the progress of a cause. Indeed, scarcely an order is imaginable which does not finally dispose of some particular point arising in the case; but that does not justify a review of such order, until the action itself has been finally disposed of. If every order were final, which finally passes upon some motion made by one or the other of the parties to a cause, it might in some cases require a dozen writs of error to dispose finally of the case.' 179 U.S., at 397, 21 S.Ct., at 206.
60
The Cincinnati case also shows the invalidity of the argument of these appellants that they may be spared a trial if their venue claim is presently sustained. For the Court in Cincinnati was unmoved by the circumstance that the railway company there had already won a jury verdict which had been set aside by the state court because of faulty venue. A fortiori, in a proceeding where the action has not yet been tried, the Court should be deaf to the similar claims of these appellants.
61
The Court's decision in these appeals throws the law of finality into a state of great uncertainty and will, I am afraid, tend to increase future efforts at piecemeal review.3
62
These appeals should be dismissed.
1
See Appendix, No. 4. The pertinent national bank legislation appears in the Appendix to this opinion, p. 567.
2
See Appendix, No. 6.
3
See Appendix, No. 8.
4
The history of national banking in the United States begins with the First Bank of the United States, chartered in 1791 (1 Stat. 191; see Bank of United States v. Deveaux, 5 Cranch 61, 3 L.Ed. 38), which continued in existence until 1811. 1 Dictionary of American History 155 (1940). The Second Bank was incorporated in 1816, 3 Stat. 266, see Osborn v. Bank of United States, 9 Wheat. 738, and terminated in 1836 when its charter was permitted to expire. Ibid.
5
See Appendix, No. 1.
6
Ibid.
7
'(O)ur conclusion on this subject is fortified by the terms of § 57, chap. 106, 13 Stat. at L. 116 (the 1864 Act, discussed infra), making controversies concerning national banks cognizable in state courts because of their intimate relation to many state laws and regulations, although, without the grant of the act of Congress, such controversies would have been Federal in character.' 244 U.S., at 428, 37 S.Ct., at 739. But cf. Claflin v. Houseman, 93 U.S. 130, 135, 23 L.Ed. 833.
8
See Appendix, No. 2.
9
See Appendix, No. 5.
10
See Appendix, No. 3.
11
First Nat. Bank of Bethel v. Pahquioque Bank, 14 Wall. 383, 20 L.Ed. 840, was a suit in state courts against a national bank in default on its notes. The national bank contended that since it was an instrumentality of the Federal Government, it was not subject to suit in state courts. This Court, noting that the suit was in a state court where the bank was located, sustained the power of the state court squarely upon the provisions of § 57. Subsequently, Casey v. Adams, 102 U.S. 66, 26 L.Ed. 52, reaffirmed the mandate of § 57, then Rev.Stat. § 5198, as applied to ordinary transitory actions but held that Congress did not intend it to apply to local, in rem actions. Many years later, in the course of deciding Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602, this Court, in compelling language, pointed out: 'For jurisdictional purposes, a national bank is a 'citizen' of the state in which it is established or located, 28 U.S.C. § 41(16), and in that district alone can it be sued. 12 U.S.C. § 94.' 331 U.S., at 467, 67 S.Ct., at 1343.
12
'This exemption of national banking associations from suits in state courts, established elsewhere than in the county or city in which such associations were located, was, we do not doubt, prescribed for the convenience of those institutions, and to prevent interruption in their business that might result from their books being sent to distant counties in obedience to process from state courts. (First Nat.) Bank of Bethel v. Pahquioque Bank, 14 Wall. 383, 394, (20 L.Ed. 840); Crocker v. Marine National Bank, 101 Mass. 200 (240). But, without indulging in conjecture as to the object of the exemption in question, it is sufficient that it was granted by congress, and if it had been claimed by the defendant, when appearing in the Superior Court of Cleveland county, must have been recognized. The defendant did not, however, choose to claim immunity from suit in that court.
It made defence upon the merits, and, having been unsuccessful, prosecuted a writ of error to the Supreme Court of the state, and in the latter tribunal, for the first time, claimed the immunity granted to it by congress. This was too late. Considering the object as well as the words of the statute authorizing suit against a national banking association to be brought in the proper state court of the county where it is located, we are of opinion that its exemption from suits in other courts of the same state was a personal privilege that it could waive, and which, in this case, the defendant did waive, by appearing and making defence without claiming the immunity granted by congress. No reason can be suggested why one court of a state, rather than another, both being of the same dignity, should take cognizance of a suit against a national bank, except the convenience of the bank. And this consideration supports the view that the exemption of a national bank from suit in any state court except one of the county or city in which it is located is a personal privilege, which it could claim or not as it deemed necessary.' 132 U.S., at 145, 10 S.Ct., at 38.
13
The lower federal courts have been unanimous in holding the section fully effective and mandatory. Buffum v. Chase Nat. Bank, 192 F.2d 58 (C.A.7th Cir. 1951), cert. denied, 342 U.S. 944, 72 S.Ct. 558, 96 L.Ed. 702; Leonardi v. Chase Nat. Bank, 81 F.2d 19 (C.A.2d Cir. 1936), cert. denied, 298 U.S. 677, 56 S.Ct. 941, 80 L.Ed. 1398; International Refugee Organization v. Bank of America, 86 F.Supp. 884 (S.D.N.Y.1949); Schmitt v. Tobin, 15 F.Supp. 35 (D.Nev.1935); Cadle v. Tracy, 4 Fed.Cas. 967, No. 2,279 (C.C.S.D.N.Y.1873).
The state courts considering the problem are about evenly divided. Some hold that a national bank must be sued in the county where it is situated, Monarch Wine Co. v. Butte, 113 Cal.App.2d 833, 249 P.2d 291 (1952); Crocker v. Marine Nat. Bank, 101 Mass. 240 (1869); Rabinowitz v. Kaiser-Frazer Corp., 198 Misc. 312, 96 N.Y.S.2d 638 (Sup.Ct.1950); Raiola v. Los Angeles, etc., Bank, 133 Misc. 630, 233 N.Y.S. 301 (Sup.Ct.1929); Burns v. Northwestern Nat. Bank, 65 N.D. 473, 260 N.W. 253 (1935); Zarbell v. Bank of America Nat. Trust & Savings Ass'n, 52 Wash.2d 549, 327 P.2d 436 (1958). Others hold that their is no such requirement on the theory that § 57 of the 1864 Banking Act was impliedly repealed, Fresno Nat. Bank v. Superior Court, 83 Cal. 491, 24 P. 157 (1890); Levitan v. Houghton Nat. Bank, 174 Mich. 566, 140 N.W. 1019 (1913); De Cock v. O'Connell, 188 Minn. 228, 246 N.W. 885, 248 N.W. 829, 86 A.L.R. 41 (1933); Stewart v. First Nat. Bank, 93 Mont. 390, 18 P.2d 801 (1933); Guerra v. Lemburg, 22 S.W.2d 336 (Tex.Civ.1929); Brust v. First Nat. Bank, 184 Wis. 15, 198 N.W. 749 (1924), or that the section is to be given a permissive construction, First Nat. Bank of Linden v. Alston, 231 Ala. 348, 165 So. 241 (Ala.1936); Hills v. Burnett, 172 Neb. 370, 109 N.W.2d 739 (1961); Talmage v. Third Nat. Bank, 91 N.Y. 531 (1883); Curlee v. National Bank, 187 N.C. 119, 121 S.E. 194 (1924). See also County of Okeechobee v. Florida Nat. Bank, 112 Fla. 309, 150 So. 124 (1933); Cassatt v. First Nat. Bank, 9 N.J.Misc. 222, 153 A. 377 (Sup.Ct.1931); Chaffee v. Glens Falls Nat. Bank & Trust Co., 204 Misc. 181, 123 N.Y.S.2d 635 (Sup.Ct.1953), aff'd, 283 App.Div. 694, 128 N.Y.S.2d 539, appeal denied, 283 App.Div. 793, 129 N.Y.S.2d 237.
14
'Transferred if Plea Is Sustained
'If a plea of privilege is sustained, the cause shall not be dismissed, but the court shall transfer said cause to the proper court * * *.' Tex.Rules Civ.Proc. 89 (Vernon 1955).
15
'Non-Suit
'At any time before the jury has retired, the plaintiff may take a non-suit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief. When the case is tried by the judge, such non-suit may be taken at any time before the decision is announced.' Tex.Rules Civ.Proc. 164 (Vernon 1955).
16
'Venue, general rule
'4. Defendants in different counties.—If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.' Art. 1995(4), Tex.Rev.Civ.Stat. (Vernon 1950).
17
To be sure, Texas law does not permit frivolous joinder of defendants to insure a desired venue, see Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, but nothing before us indicates that appellee will find any difficulty in sustaining his burden to establish that the defendant national banks are residents of Dallas County and that, as he alleges, his cause of action against them has a substantial and valid basis.
18
See Appendix, No. 6. See note 13, supra, for state cases which have reached the same conclusion.
19
See Appendix, No. 8.
20
See Appendix, No. 7.
21
See Appendix, No. 5.
22
The proviso to § 4 of the 1882 Act first appeared as an amendment offered on the floor of the House by Representative Hammond, pursuant to the order of the House fixing the assignment of the bill H.R. 4167 as a special order. See 13 Cong.Rec. 3900, 3901. Mr. Hammond succinctly stated the purpose of his amendment as follows: 'My amendment, therefore, declares that the jurisdictional limits for and as to a national bank shall be the same as they would be in regard to a State bank actually doing or which might be doing business by its side; that they shall be one and the same.' 13 Cong.Rec., at 4049. Mr. Robinson then asked, 'As I understand the gentleman's proposed amendment, it is simply to this effect, that a national bank doing business within a certain State shall be subject for all purposes of jurisdiction to precisely the same regulations to which a State bank, if organized there, would be subject.' Mr. Hammond replied, 'That is all.' Ibid.
1
The proviso to § 4 of the Act of 1882 is included in the Supplement to the Revised Statutes at 354 (2d ed. 1891), despite the apparent duplication of the Acts of 1887 and 1888, appearing at 614. It does not appear in the 1925 United States Code, the first official restatement since 1878 of all United States statutes presumptively in effect, evidently because the Committee on Revision cited the entire 1882 Act as repealed, 44 Stat. 1833, by the Act of July 1, 1922, c. 257, § 2, 42 Stat. 767. When the 1948 codification of Title 28 was enacted, the proviso to § 4 of the Act of 1882 was expressly repealed. 62 Stat. 992, ch. 646, § 39.
2
The Acts of 1887 and 1888 were repealed when the 1911 codification of the judiciary and judicial procedure provisions was enacted. Act of March 3, 1911, c. 231, § 297, 36 Stat. 1168. These provisions became § 24 of the Judicial Code of 1911, 28 U.S.C. (1940 ed.) § 41(16) and then § 1348 of Title 28 enacted in 1948.
1
28 U.S.C. § 1257 limits the appellate jurisdiction of this Court to review of '(f)inal judgments or decrees rendered by the highest court of a State in which a decision could be had.'
2
As the Court stated in the Catlin case, 324 U.S., at 236, 65 S.Ct., at 635: '(D)enial of a motion to dismiss, even when the motion is based upon jurisdictional grounds, is not immediately reviewable. * * * Certainly this is true whenever the question may be saved for disposition upon review of final judgment disposing of all issues involved in the litigation * * *.'
3
The Court appears to suggest that these appeals are unique because the decisions were appealable under state law and because national banks are making a substantial claim of a conflict between a federal and a state statute. But I fail to see how the appealability of interlocutory orders under state law, the identity of the appellants, or the substantiality of the federal claim asserted can have any bearing on whether the judgments appealed from are final.
| 89
|
371 U.S. 542
83 S.Ct. 531
9 L.Ed.2d 514
LOCAL NO. 438 CONSTRUCTION & GENERAL LABORERS' UNION, AFL—CIO, Petitioner,v.S. J. CURRY et al., etc.
No. 87.
Argued Nov. 7 and 8, 1962.
Decided Jan. 21, 1963.
John S. Patton and Edwin Pearce, Atlanta, Ga., for petitioner.
Robert B. Langstaff, Albany, Ga., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
In the face of petitioner's claim that the subject matter of this suit was within the exclusive jurisdiction of the National Labor Relations Board, the Supreme Court of Georgia reversed the denial by the trial court of a temporary injunction sought by respondents. 217 Ga. 512, 123 S.E.2d 653. We granted certiorari to consider the jurisdiction of the Georgia court to authorize the entry of an injunction and requested the parties to brief also the question of our own jurisdiction to review the Georgia court's judgment under 28 U.S.C. § 1257. 369 U.S. 883, 82 S.Ct. 1159, 8 L.Ed.2d 286.
2
Respondents, partners in the contracting business, entered into a construction contract with the City of Atlanta requiring that wages paid by respondents 'conform with those being paid on similar types of work in the Atlanta area.' Shortly after the beginning of construction, various unions in the Atlanta area visited respondents, whose practice it was to hire without regard to union membership and whose employees were not represented by a union. According to respondents the unions strongly urged the hiring of union labor, whereas the unions recalled only their request for respondents to raise their pay scales to those prevailing in the area. Some months later, following unsuccessful efforts by the unions to have the City of Atlanta persuade respondents to pay higher wages, petitioner placed a single picket at the construction site. Thereupon employees of other contractors not under respondents' supervision refused to work and respondents experienced difficulty in having materials and supplies delivered. Construction slowed, respondents laid off all but 37 of the 72 men working for them, and their ability to finish the job within the time provided in the contract was jeopardized.
3
Respondents then brought this action for an injunction in the Superior Court of Fulton County, Georgia, alleging that petitioner's picketing was for the purpose of forcing respondents to hire only union labor, all in violation of the Georgia right-to-work statute.1 A hearing upon respondents' request for a temporary injunction was held. According to the union its picketing was for the sole purpose of publicizing the facts about the wages being paid by respondents, and in any event its activities were claimed to be within the exclusive jurisdiction of the National Labor Relations Board. It was stipulated that respondents had purchased more than $50,000 worth of goods and commodities from outside the State of Georgia.2 The temporary injunction was denied without opinion and respondents appealed. The Georgia Supreme Court found the picketing to be peaceful and the evidence sufficient to sustain a finding that respondents were not paying wages conforming with those paid on similar types of work in the Atlanta area. Relying upon and quoting from an earlier case, the court nevertheless concluded on the whole record that the picket was placed on the job for the purpose of forcing the employer 'to employ only union labor, or be unable to comply with the terms of his contract * * * such picketing is for an unlawful purpose, and clearly a violation of the provisions of Code Ann.Supp. § 54—804 * * *.'3 The judgment of the court was that 'the trial judge erred in refusing the interlocutory injunction,' this judgment later being entered upon the minutes of the trial court and made the judgment of that court.
4
Upon such a record, we hold that this Court has appellate jurisdiction under § 1257 and we reverse the judgment below as beyond the power of the Georgia courts. The allegations of the complaint, as well as the findings of the Georgia Supreme Court, made out at least an arguable violation of § 8(b) of the National Labor Relations Act, 29 U.S.C. § 158(b).4 Consequently, the state court had no jurisdiction to issue an injunction or to adjudicate this controversy, which lay within the exclusive powers of the National Labor Relations Board. Plumbers, etc., of Local No. 298, A.F. of L. v. Door County, 359 U.S. 354, 359, 79 S.Ct. 844, 847, 3 L.Ed.2d 872; San Diego Bldg. Trades Council, etc., Local 2020 v. Garmon, 359 U.S. 236, 244—245, 79 S.Ct. 773, 779, 3 L.Ed.2d 775; Hotel Employees Union, Local No. 255 v. Sax Enterprises, Inc., 358 U.S. 270, 79 S.Ct. 273, 3 L.Ed.2d 289; Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 478, 481, 75 S.Ct. 480, 486—488, 99 L.Ed. 546; Garner v. Teamsters, Etc., Union No. 776, 346 U.S. 485, 489—491, 74 S.Ct. 161, 165—166, 98 L.Ed. 228. Nor is the jurisdiction of the Georgia courts sustainable, as respondents urge, by reason of the Georgia right-to-work law and by § 14(b) of the National Labor Relations Act, 29 U.S.C. s 164(b). This precise contention has been previously considered and rejected by this Court. Local Union 429, etc., v. Farnsworth & Chambers Co., 353 U.S. 969, 77 S.Ct. 1056, 1 L.Ed.2d 1133, reversing 201 Tenn. 329, 299 S.W.2d 8. The Georgia Supreme Court clearly exceeded its power in authorizing the issuance of a temporary injunction.
5
Respondents would nevertheless have us dismiss this case as beyond our appellate jurisdiction since 28 U.S.C. § 1257 limits our authority to the review of final judgments of state courts and since the Georgia Supreme Court authorized the issuance of only a temporary injunction, thus leaving a permanent order still to be issued after further hearings in the trial court. But we believe our power to review this case rests upon solid ground. The federal question raised by petitioner in the Georgia court, and here, is whether the Georgia courts had power to proceed with and determine this controversy. The issue ripe for review is not whether a Georgia court has erroneously decided a matter of federal law in a case admittedly within its jurisdiction (compare Gibbons v. Ogden, 6 Wheat. 448, 5 L.Ed. 302) nor is it the question of whether federal or state law governs a case properly before the Georgia courts. Compare Local 174, Teamsters, etc., v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593. What we do have here is a judgment of the Georgia court finally and erroneously asserting its jurisdiction to deal with a controversy which is beyond its power and instead is within the exclusive domain of the National Labor Relations Board.
6
Whether or not the Georgia courts have power to issue an injunction is a matter wholly separate from and independent of the merits of respondents' cause. The issue on the merits, namely the legality of the union's picketing, is a matter entirely apart from the determination of whether the Georgia court or the National Labor Relations Board should conduct the trial of the issue.
7
The jurisdictional determination here is as final and reviewable as was the District Court's decision in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, exempting plaintiffs in a stockholder's suit filed in a federal court from filing a bond pursuant to a state statute. That ruling was held a final judgment under 28 U.S.C. § 1291 even though the trial in the case was still to take place. The judgment before us now, like the judgment in Cohen, falls 'in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. The Court has long given this provision of the statute this practical rather than a technical construction.' Id., at 546, 69 S.Ct., at 1225. And in Radio Station WOW v. Johnson, 326 U.S. 120, 65 S.Ct. 1475, 89 L.Ed. 2092, the authority of the Nebraska courts to award relief assertedly within the exclusive power of the Federal Communications Commission was held separable from the accounting which was still to take place in the state courts.5 'In effect, such a controversy is a multiple litigation allowing review of the adjudication which is concluded because it is independent of, and unaffected by, another litigation with which it happens to be entangled.' Id., at 126, 65 S.Ct., at 1479.6
8
There is no doubt that the jurisdiction of the Georgia courts has been finally determined by the judgment below and is not subject to further review in the state courts. Lankford v. Milhollin, 201 Ga. 594, 599, 40 S.E.2d 376, 379; Smoot v. Alexander, 192 Ga. 684, 686, 16 S.E.2d 544, 545; Dixon v. Federal Farm Mtg. Corp., 187 Ga. 660, 661, 1 S.E.2d 732, 733; Blackwell v. Southland Butane Gas Co., 95 Ga.App. 113, 115, 97 S.E.2d 191, 192. Unless this judgment is reviewable now, petitioner will inevitably remain subject to the issuance of a temporary injunction at the request of the respondents and must face further proceedings in the state courts which the state courts have no power to conduct. If the permanent injunction issues, petitioner could then come here seeking the doubtful privilege of relitigating the entire matter before the National Labor Relations Board. The truth is that authorizing the issuance of a temporary injunction, as is frequently true of temporary injunctions in labor disputes, may effectively dispose of petitioner's rights and render entirely illusory his right to review here as well as his right to a hearing before the Labor Board. The policy of 28 U.S.C. § 1257 against fragmenting and prolonging litigation and against piecemeal reviews of state court judgments does not prohibit our holding the decision of the Georgia Supreme Court to be a final judgment, particularly when postponing review would seriously erode the national labor policy requiring the subject matter of respondents' cause to be heard by the National Labor Relations Board, not by the state courts.
9
There is another entirely adequate reason for sustaining our authority to review in this case. In Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 382, 73 S.Ct. 749, 751, 97 L.Ed. 1094, the Georgia Supreme Court reversed the order of a trial court sustaining a general demurrer to a suit to enjoin an employee from prosecuting a suit against his employer in the Alabama courts under the Federal Employers' Liability Act. The demurrer had raised the provisions of the federal statute as a bar to the power of the Georgia courts to issue the injunction. The Georgia courts' denial of this federal claim was held reviewable here although ordinarily the overruling of a demurrer is not a final judgment. This Court looked to the whole record, as we are entitled to do in determining questions of finality, Department of Banking, State of Nebraska v. Pink, 317 U.S. 264, 268, 63 S.Ct. 233, 235, 87 L.Ed. 254; Gospel Army v. City of Los Angeles, 331 U.S. 543, 547, 67 S.Ct. 1428, 1430, 91 L.Ed. 1662; Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 72, 67 S.Ct. 156, 158, 91 L.Ed. 80, and concluded that for all practical purposes the litigation in the Georgia courts was terminated, since the employee freely conceded he had no further defenses to offer in the state courts, relying upon Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80.
10
We have a quite similar situation here. The Georgia Supreme Court not only finally asserted its power to deal with the subject matter of this suit, but it also resolved the merits of the issues raised in the course of the hearing upon the temporary injunction. Petitioner's conduct was adjudged to be in violation of the Georgia right-to-work law and an injunction was authorized. Petitioner conceded before this court that he had no further factual or legal issues to present to the Georgia trial court and respondent does not suggest that the matters adjudicated by the Georgia Supreme Court are not final and conclusive upon petitioner and the lower court.7 Since there was nothing more of substance to be decided in the trial court, the judgment below was final within the meaning of 28 U.S.C. § 1257 and within the scope of the Pope and Richfield cases. Cf. Clark v. Williard, 292 U.S. 112, 54 S.Ct. 615, 78 L.Ed. 1160.8
11
There remains the matter of Montgomery Building & Construction Trades Council v. Ledbetter Erection Co., Inc., 344 U.S. 178, 73 S.Ct. 196, 97 L.Ed. 204, where the court applied the salutary and long-standing rule that decisions upon interlocutory injunctions are not final judgments. Ledbetter, of course, was decided before Garner v. Teamsters, etc., Union No. 776, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228, and subsequent preemption cases9 in this Court, and at a time when the respective jurisdiction of the National Labor Relations Board and the state courts was a much mooted issue. Moreover, the Alabama court did not pass upon the merits of the injunction claim, the union there had withdrawn an answer which controverted important allegations of the complaint, and it was not at all clear that there was nothing left to be litigated in the Alabama trial court. This Court apparently preferred to avoid deciding this important matter of federal and state relationships where the decision below did not have all of the traditional badges of finality. Cf. Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 68 S.Ct. 972, 92 L.Ed. 1212. In any event, however, to the extent that Ledbetter may be said to prohibit our review of a final and erroneous assertion of jurisdiction by a state court to issue a temporary injunction in a labor dispute, when a substantial claim is made that the jurisdiction of the state court is pre-empted by federal law and by the exclusive power of the National Labor Relations Board, we decline to follow it.
12
The judgment is reversed.
13
Reversed.
14
Mr. Justice HARLAN, concurring in the result.
15
I join in the determination that we have appellate jurisdiction in this case, and in the reversal of the judgment below. But I believe that the approach taken by the Court to the question of 'finality' is far broader than the case demands, or than precedent and policy would warrant.*
16
At least until today, none of this Court's decisions could be interpreted to suggest that a state court's determination as to state versus federal jurisdiction could, without more, be considered a final judgment subject to our review when further proceedings on the merits were still pending. Indeed, Montgomery Building & Construction Trades Council v. Ledbetter Erection Co., Inc., 344 U.S. 178, 73 S.Ct. 196, 97 L.Ed. 204, held expressly to the contrary, despite the fact that the determination of jurisdiction had been coupled, as in the present case, with the issuance of a temporary injunction. In Ledbetter, as here, it was claimed that the temporary injunction might well have the practical effect of mooting the underlying dispute, thereby aborting any review of the jurisdictional issue.
17
Neither Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, nor Radio Station WOW, Inc., v. Johnson, 326 U.S. 120, 65 S.Ct. 1475, 89 L.Ed. 2092, lends support to the view that a determination of jurisdiction at this stage, simply by virtue of its separability from the rest of the case, can be deemed a final judgment. For here, unlike Cohen, the question now raised would be merged in the final judgment and would be open to review by this Court at that time. And unlike Radio Station WOW, where the subsequent state proceedings could not moot the controversy sought to be brought before the Court, a victory for this petitioner in the permanent injunction proceedings would effectively dispose of the entire case.
18
In any event, there is no need to strain these precedents to the breaking point, since as the Court itself recognizes (p. 550), 'There is another entirely adequate reason for sustaining our authority to review in this case.' During oral argument before the Court, petitioner conceded that in any proceedings on the issuance of a permanent injunction, it would have nothing left to litigate. In other words, the state courts having decided that they had jurisdiction and that the picketing was for an unlawful purpose, the petitioner would have nothing further to offer on these or any other issues, and the issuance of a permanent injunction would follow as a matter of course.
19
It being clear that the entire case must stand or fall on the federal claim now presented, the case is squarely governed by Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 73 S.Ct. 749, 97 L.Ed. 1094. Since what remains to be done is only a formality, the judgment sought to be reviewed is final in every significant sense. No such showing was made in Ledbetter, supra, and the case is readily distinguishable on this ground. No doubts should be cast on the vitality of Ledbetter; still less should it be overruled.
1
The Georgia right-to-work law, Ga.Code, § 54—804, provides:
'Compelling persons to join, or refrain from joining, labor organization, or to strike or refrain from striking.—It shall be unlawful for any person, acting alone or in concert with one or more other persons to compel or attempt to compel any person to join or refrain from joining any labor organization, or to strike or refrain from striking against his will, by any threatened or actual interference with his person, immediate family, or physical property, or by any threatened or actual interference with the pursuit of lawful employment by such person, or by his immediate family.'
The Georgia Supreme Court also referred to Ga.Code, § 66 9906, which provides:
'Unlawfully preventing laborers, etc., from performing duties.—Any person or persons, who, by threats, violence, intimidation, or other unlawful means, shall prevent or attempt to prevent any person or persons from engaging in, remaining in, or performing the business, labor, or duties of any lawful employment or occupation, shall be guilty of a misdemeanor.'
2
Although respondents point out that there has been no judicial determination of effect on interstate commerce, we do not understand that they question the accuracy or validity of the stipulation or that their purchases from outside Georgia meet the direct inflow standards set by the NLRB for the exercise of its jurisdiction. See Twenty-Third Annual Report, National Labor Relations Board, p. 8 (G.P.O., 1958).
3
217 Ga., at 514, 123 S.E.2d, at 655, quoting from Powers v. Courson, 213 Ga. 20, 96 S.E.2d 577.
4
Sections 8(b)(1)(A), 8(b)(2), 8(b)(4)(B), and 8(b)(7)(C) provide, in pertinent part:
'(b) It shall be an unfair labor practice for a labor organization or its agents—
'(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7 * * *;
'(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;
'(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
'(B) forcing or requiring any 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, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9:
Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;
'(7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees:
'(C) where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided, * * * That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services.
'Nothing in this paragraph (7) shall be construed to permit any act which would otherwise be an unfair labor practice under this section 8(b).'
See also Amalgamated Meat Cutters etc., Local 427 v. Fairlawn Meats, Inc., 353 U.S. 20, 23, 77 S.Ct. 604, 605, 1 L.Ed.2d 613; Radio Officers' Union of Commercial Telegraphers Union v. Labor Board, 347 U.S. 17, 40—42, 52—53, 74 S.Ct. 323, 335—336, 342, 97 L.Ed. 662; National Labor Relations Board v. Local Union No. 55, 218 F.2d 226, 232 (10th Cir.).
5
The Court granted certiorari '(b)ecause of the importance of the contention that the State court's decision had invaded the domain of the Federal Communications Commission' and directed attention to the question of whether or not the judgment of the Nebraska court was a final one. 326 U.S., at 123, 65 S.Ct., at 1478.
6
This, of course, was consistent with and followed older cases recognizing a judgment as final even though an accounting was still to take place. Forgay v. Conrad, 6 How. 201, 12 L.Ed. 404; Carondelet Canal & Navigation Co. v. Louisiana, 233 U.S. 362, 34 S.Ct. 627, 58 L.Ed. 1001.
7
See cases cited in text, ante, p. 550.
8
According to respondents, they urgently desire to litigate at the hearing upon a permanent injunction the question of whether they violated their contract with the city, which in their view the Georgia Supreme Court did not squarely decide. But in view of the characterization of the picketing by the Georgia Supreme Court as being for the purpose of coercing the hiring of only union labor, it is still true that as far as petitioner is concerned, there is nothing more of substance to be litigated in the trial court.
9
E.g., San Diego Bldg. Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, and cases cited in text, ante, p. 547.
*
My views in this area are more fully set forth in the dissenting opinion I have filed in Mercantile National Bank v. Langdeau, 371 U.S. 572, 83 S.Ct. 520.
| 910
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372 U.S. 221
83 S.Ct. 609
9 L.Ed.2d 691
A. J. SIMLER, Petitioner,v.Leslie E. CONNER.
No. 59.
Argued Jan. 9, 19, 1963.
Decided Feb. 18, 1963.
John B. Ogden, Oklahoma City, Okl., for petitioner.
Peyton Ford, Washington, D.C., for respondent.
PER CURIAM.
1
This Court granted certiorari, 368 U.S. 966, 82 S.Ct. 440, 7 L.Ed.2d 395, to review the decision of the Court of Appeals for the Tenth Circuit, holding that in a diversity action in the Federal District Court, state law, here that of Oklahoma, governs in determining whether an action is 'legal' or 'equitable' for the purpose of deciding whether a claimant has a right to a jury trial. Applying Oklahoma law, the Court of Appeals decided that a jury trial, although asked for by petitioner, was not here appropriate. 295 F.2d 534.
2
In this Court respondent frankly concedes that, contrary to the Court of Appeals holding, federal law governs in determining the right to a jury trial in the federal courts. Respondent seeks to sustain the result reached by the Court of Appeals, however, on the twin grounds that, applying federal law, no jury was required in this case because (1) the District Court properly granted summary judgment for respondent under Rule 56 of the Federal Rules of Civil Procedure and (2) the present action is 'equitable' and not 'legal' in character.
3
We agree with respondent that the right to a jury trial in the federal courts is to be determined as a matter of federal alw in diversity as well as other actions. The federal policy favoring jury trials is of historic and continuing strength. Parsons v. Bedford Breedlove & Robeson, 3 Pet. 433, 446—449, 7 L.Ed. 732; Scott v. Neely, 140 U.S. 106, 11 S.Ct. 712, 35 L.Ed. 358; Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 537 539, 78 S.Ct. 893, 900—901, 2 L.Ed.2d 953; Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988; Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44. Only through a holding that the jurytrial right is to be determined according to federal law can the uniformity in its exercise which is demanded by the Seventh Amendment1 be achieved. In diversity cases, of course, the substantive dimension of the claim asserted finds its source in state law, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; see Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 84 L.Ed. 196; Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645, but the characterization of that state-created claim as legal or equitable for purposes of whether a right to jury trial is indicated must be made by recourse to federal law.
4
However, we do not agree with respondent that in this case a summary judgment was warranted or that this is an 'equitable' action not requiring a jury trial.
5
In two appeals in this case, the Court of Appeals has ruled that in view of conflicting facts presented by affidavits and depositions to the District Court, summary judgment was not warranted. We accept and do not disturb the ruling of the Court of Appeals on this phase of the case since it has ample support in the record.
6
On the question whether, as a matter of federal law, the instant action is legal or equitable, we conclude that it is 'legal' in character. The record discloses that the controversy between petitioner and respondent in substance involves the amount of fees petitioner, a client, is obligated to pay respondent, his lawyer. Petitioner admits his obligation to pay a 'reasonable' fee under a contingent fee retainer contract stipulating that reasonableness may be set in a court trial. Respondent relies on a subsequent contract specifying 50% of the recovery, under certain circumstances, as the amount of the fee. Petitioner counters that the latter contract is the product of fraud and overreaching by the lawyer.
7
The case was in its basic character a suit to determine and adjudicate the amount of fees owing to a lawyer by a client under a contingent fee retainer contract, a traditionally 'legal' action. See Trist v. Child, 21 Wall. 441, 447, 22 L.Ed. 623; Stanton v. Embrey, 93 U.S. 548, 23 L.Ed. 983. The fact that the action is in form a declaratory judgment case should not obscure the essentially legal nature of the action. The questions involved are traditional common-law issues which can be and should have been submitted to a jury under appropriate instructions as petitioner requested.
8
Accordingly, the courts below erred in denying petitioner the jury trial guaranteed him by the Seventh Amendment and the judgment is reversed.
9
Reversed.
1
'In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.' U.S.Const., Amend. VII.
| 01
|
372 U.S. 84
83 S.Ct. 646
9 L.Ed.2d 601
NORTHERN NATURAL GAS COMPANY, Appellant,v.STATE CORPORATION COMMISSION of the State OF KANSAS.
No. 62.
Argued Dec. 13, 1962.
Decided Feb. 18, 1963.
Rehearing Denied April 1, 1963.
See 372 U.S. 960, 83 S.Ct. 1011.
[The balance of this page intenionally left blank]
Mark H. Adams, Sr., Wichita, Kan., for appellant.
Charles C. McCarter, Wichita, Kan., for appellee.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question in this case is whether orders of the Kansas State Corporation Commission which require the appellant, an interstate pipeline company, to purchase gas ratably from all wells connecting with its pipeline system in each gas field within the State1 invalidly encroach upon the exclusive regulatory jurisdiction of the Federal Power Commission conferred by the Natural Gas Act, 15 U.S.C. §§ 717—717w.
2
The appellant's pipeline system is connected to some 1,100 natural gas wells in the Kansas Hugoton Field2 under about 125 purchase contracts between the appellant and various producers. The contracts have been duly filed with the Federal Power Commission. Under the oldest contract, known as the Republic 'A' contract, which was made in 1945 with Republic Natural Gas Company, and is still in force as modified in 1953, appellant was obligated to purchase gas from Republic up to the maximum production allowables for Republic's Kansas wells connected to appellant's system.3 Appellant's contracts with its other producers provide that appellant's purchase commitments thereunder are expressly subject to the agreement with Republic. Thus appellant was bound to purchase from its other producers only so much of its requirements as were not satisfied by the quantities which the Republic contract required to be taken from Republic wells.
3
Appellant's requirements until 1958 were such that its purchases from its various producers were nevertheless roughly ratable, that is, in like proportion to the legally fixed allowables for each of the 1,100 wells in the Hugoton Field. However, after 1958 appellant's requirements aggregated substantially less than the total allowables for the Hugoton wells.4 Thus the balance of the total requirements, after the contractually required purchases from Republic of the maximum allowables for the Republic wells, resulted in appellant's purchases from appellant's other producers of proportions substantially below the allowables for those producers' wells. This imbalance brought about the orders of the State Commission of which appellant complains.
4
A Kansas statute5 empowers the State Commission so to 'regulate the taking of natural gas from any and all * * * common sources of supply within this state as to prevent the inequitable or unfair taking from such common source of supply * * * and to prevent unreasonable discrimination * * * in favor of or against any producer in any such common source of supply.' The Commission adopted in 1944, avowedly as a conservation measure, a basic proration order designed to effect ratable production and to protect correlative rights in the Hugoton Field.6 In 1959, in order to require appellant to take gas from Republic wells in no higher proportion to the allowables than from the wells of the other producers, the Commission entered the order specifically directing appellant to purchase gas ratably from all 1,100 Hugoton wells. That order was superseded in February 1960 by the general order, directed at all natural gas purchasers taking Kansas gas. These orders presented the appellant with the alternatives of complying with the obligations of the Republic contract and increasing its takes from the other producers' wells—thus taking more gas from Kansas than it could currently use—or of risking liability for a breach of the Republic contract by decreasing its takes from the Republic wells below the allowables.7
5
Appellant challenged the two orders in the Kansas courts on the ground, among others, that they unconstitutionally invaded the exclusive jurisdiction of the Federal Power Commission under the Natural Gas Act. The Kansas Supreme Court sustained the orders, 188 Kan. 351, 355, 362 P.2d 609, 599; on rehearing, 188 Kan. 624, 364 P.2d 668. We noted probable jurisdiction of an appeal to this Court, 370 U.S. 901, 82 S.Ct. 1248, 8 L.Ed.2d 399. We disagree with the Kansas Supreme Court, for we hold that the State Commission's orders did invade the exclusive jurisdiction which the Natural Gas Act has conferred upon the Federal Power Commission over the sale and transportation of natural gas in interstate commerce for resale.
I.
6
We consider first the ground relied upon by the Kansas Supreme Court, that the orders constitute only state regulation of the 'production or gathering' of natural gas, which is exempted from the federal regulatory domain by the terms of § 1(b) of the Natural Gas Act, 15 U.S.C. § 717(b). These orders do not regulate 'production or gathering' within that exemption. In a line of decisions beginning with Colorado Interstate Gas Co. v. Federal Power Comm'n, 324 U.S. 581, 598, 65 S.Ct. 829, 837, 89 L.Ed. 1206, and Interstate Natural Gas Co. v. Federal Power Comm'n, 331 U.S. 682, 689—693, 67 S.Ct. 1482, 1486—1488, 91 L.Ed. 1742, it has been consistently held that 'production' and 'gathering' are terms narrowly confined to the physical acts of drawing the gas from the earth and preparing it for the first stages of distribution. See Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 680—681, 74 S.Ct. 794, 797—798, 98 L.Ed. 1035; Continental Oil Co. v. Federal Power Comm'n, 5 Cir., 266 F.2d 208; Huber Corp. v. Federal Power Comm'n, 3 Cir., 236 F.2d 550. Appellant is not a producer but a purchaser of gas from producers, and none of its activities in Kansas shown upon this record involves 'production and gathering, in the sense that those terms are used in § 1(b) * * *'8 Phillips Petroleum Co. v. Wisconsin, supra, 347 U.S. at 678, 74 S.Ct. at 797.
II.
7
The Kansas Supreme Court also sustained the orders on the ground that neither order threatened any actual invasion of the regulatory domain of the Federal Power Commission since it 'in no way involves the price of gas.'188 Kan. at 624, 364 P.2d, at 668. It is true that it was settled even before the passage of the Natural Gas Act, that direct regulation of the prices of wholesales of natural gas in interstate commerce is beyond the constitutional power of the States—whether or not framed to achieve ends, such as conservation, ordinarily within the ambit of state power. See State of Missouri ex rel. Barrett v. Kansas Natural Gas Co., 265 U.S. 298, 44 S.Ct. 544, 68 L.Ed. 1027; cf. Public Utilities Comm'n v. Attleboro Steam & Electric Co., 273 U.S. 83, 47 S.Ct. 294, 71 L.Ed. 549. But our inquiry is not at an end because the orders do not deal in terms with prices or volumes of purchases, cf. Dayton-Goose Creek R. Co. v. United States, 263 U.S. 456, 478, 44 S.Ct. 169, 172, 68 L.Ed. 388. The Natural Gas Act precludes not merely direct regulation by the States of such contractual matters. See Illinois Natural Gas Co. v. Central Illinois Public Service Co., 314 U.S. 498, 506—509, 62 S.Ct. 384, 387—388, 86 L.Ed. 371. The Congress enacted a comprehensive scheme of federal regulation of 'all wholesales of natural gas in interstate commerce, whether by a pipeline company or not and whether occurring before, during, or after transmission by an interstate pipeline company.'9 Phillips Petroleum Co. v. Wisconsin, supra, 347 U.S. at 682, 74 S.Ct. at 799; see H.R.Rep. No. 709, 75th Cong., 1st Sess. 2.
8
The federal regulatory scheme leaves no room either for direct state regulation of the prices of interstate wholesales of natural gas, Natural Gas Pipeline Co. v. Panoma Corp., 349 U.S. 44, 75 S.Ct. 576, 99 L.Ed. 866, or for state regulations which would indirectly achieve the same result.10 These state orders necessarily deal with matters which directly affect the ability of the Federal Power Commission to regulate comprehensively and effectively the transportation and sale of natural gas, and to achieve the uniformity of regulation which was an objective of the Natural Gas Act. They therefore invalidly invade the federal agency's exclusive domain.
9
The danger of interference with the federal regulatory scheme arises because these orders are unmistakably and unambiguously directed at purchasers who take gas in Kansas for resale after transportation in interstate commerce. In effect, these orders shift to the shoulders of interstate purchasers the burden of performing the complex task of balancing the output of thousands of natural gas wells within the State, cf. Miller Bros. Co. v. Maryland, 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed. 744—a task which would otherwise presumably be the State Commission's. Moreover, any readjustment of purchasing patterns which such orders might require of purchasers who previously took unratably could seriously impair the Federal Commission's authority to regulate the intricate relationship between the purchasers' cost structures and eventual costs to wholesale customers who sell to consumers in other States. This relationship is a matter with respect to which Congress has given the Federal Power Commission paramount and exclusive authority. See Federal Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591, 610, 64 S.Ct. 281, 291, 88 L.Ed. 333. The prospect of interference with the federal regulatory power in this area is made even more acute by the fact that criminal sanctions imposed by state statute for noncompliance fall upon such purchasers and not upon the local producers. Therefore, although collision between the state and federal regulation may not be an inevitable consequence, there lurks such imminent possibility of collision in orders purposely directed at interstate wholesale purchasers that the orders must be declared a nullity in order to assure the effectuation of the comprehensive federal regulation ordained by Congress.
10
It may be true, as the State Commission urges, that accommodation on the part of the Federal Power Commission could avoid direct collision—but this argument misses the point. Not the federal but the state regulation must be subordinated, when Congress has so plainly occupied the regulatory field. Cf. San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775. We have already said that the question to be asked under this statute is 'whether state authority can practicably regulate a given area and, if we find that it cannot, then we are impelled to decide that federal authority governs.' Federal Power Comm'n v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 19—20, 81 S.Ct. 435, 445, 5 L.Ed.2d 377.
III.
11
Appellee's principal contention, sustained by the Kansas Supreme Court, is that ratable taking is essential for the conservation of natural gas, and that conservation is traditionally a function of state power. There is no doubt that the States do possess power to allocate and conserve scarce natural resources upon and beneath their lands. We have recognized such power with particular respect to natural gas. Patterson v. Stanolind Oil & Gas Co., 305 U.S. 376, 59 S.Ct. 259, 83 L.Ed. 231; Bandini Petroleum Co. v. Superior Court, 284 U.S. 8, 52 S.Ct. 103, 76 L.Ed. 136; Walls v. Midland Carbon Co., 254 U.S. 300, 41 S.Ct. 118, 65 L.Ed. 276. But the problem of this case is not as to the existence or even the scope of a State's power to conserve its natural resources; the problem is only whether the Constitution sanctions the particular means chosen by Kansas to exercise the conceded power if those means threaten effectuation of the federal regulatory scheme.
12
We have already held that a purpose, however legitimate, to conserve natural resources, does not warrant direct interference by the States with the prices of natural gas wholesales in interstate commerce. Cities Service Gas Co. v. State Corporation Comm'n, 355 U.S. 391, 78 S.Ct. 381, 2 L.Ed. 355; Michigan Wisconsin Pipe Line Co. v. Corporation Comm'n, 355 U.S. 425, 78 S.Ct. 409, 2 L.Ed.2d 412. It has been suggested that those decisions are at variance with Champlin Refining Co. v. Corporation Comm'n, 286 U.S. 210, 52 S.Ct. 559, 76 L.Ed. 1062, in which we sustained a state proration order designed to further conservation, against a challenge under the Commerce Clause.11 We reject that suggestion. The Court in Champlin carefully limited that holding to regulations which, the Court observed precisely, 'apply only to production and not to sales or transportation of crude oil or its products.' (Italics supplied.) The Court further noted, '(s)uch production is essentially a mining operation and therefore is not a part of interstate commerce * * *.' 286 U.S., at 235, 52 S.Ct., at 565. (Italics supplied.) And, after enactment of the Natural Gas Act, in confirming state power to achieve conservation objectives, the Court took care to say, '(t)hese ends have been held to justify control over production even though the uses to which property may profitably be put are restricted.' Cities Service Gas Co. v. Peerless Oil & Gas Co., supra, 340 U.S. at 185—186, 71 S.Ct. at 219. (Italics supplied.) Thus our cases have consistently recognized a significant distinction, which bears directly upon the constitutional consequences, between conservation measures aimed directly at interstate purchasers and wholesales for resale, and those aimed at producers and production. The former cannot be sustained when they threaten, as here, the achievement of the comprehensive scheme of federal regulation.
13
Of course, the Kansas method before us would fail, for the reasons given, even if it were Kansas' only means of attaining these ends. The State does not, however, appear to be without alternative means of checking waste and disproportionate or discriminatory taking.12 Moreover, the invalidation of this particular form of state regulation does not result in a regulatory 'gap' of the sort which the Act was designed to prevent. Phillips Petroleum Co. v. Wisconsin, supra, 347 U.S. at 682—683, 74 S.Ct. at 799. For example, we have very recently recognized that the Commission can and should take appropriate account of certain conservation factors in certification proceedings. Federal Power Comm'n v. Transcontinental Gas Pipe Line Corp., supra, 365 U.S. at 20—22, 81 S.Ct. at 445—446. See also McGrath, Federal Regulation of Producers in Relation to Conservation of Natural Gas, 44 Geo.L.J. 676 (1956).
IV.
14
Although what we have said answers the question for decision, it is appropriate that we comment upon a suggestion advanced both by appellant and by the Federal Power Commission as amicus curiae. That suggestion was that if we should hold, as we do hold, that the orders invalidly invade the federal regulatory jurisdiction, the judgment should not be reversed but the case should rather be remanded to the Kansas Supreme Court. The theory is that the Kansas Supreme Court might, in light of our holding, now hold that the orders effected a modification of the Republic 'A' contract such as to permit performance of the contract through takings from the Republic wells in such lower amounts as may be necessary to achieve ratability with the takings from the wells of appellant's other producers. In short, the suggestion is that the state court, if afforded the opportunity, might now so harmonize the Republic contract with the Commission's order that there would result no measurable effect upon interstate transmissions or sales.
15
We reject this suggestion for several reasons. First, both opinions of the Kansas Supreme Court show that the court clearly recognized the substantiality of the federal question in the asserted encroachment of the orders upon the federal regulatory scheme. The court squarely decided the federal question in favor of the validity of the orders. Neither opinion rests this holding on an independent nonfederal ground of decision, and the appellant and the Commission, by suggesting a remand, in effect concede as much. Nor is there any undecided aspect of the case upon which the Kansas Supreme Court might still sustain the orders upon a nonfederal ground. Cf. State of Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 58 S.Ct. 443, 82 L.Ed. 685. We and the Kansas Supreme Court are therefore in complete agreement that the federal question as to the validity of the orders cannot be avoided. It would hardly be seemly for us to ask the Kansas Supreme Court to reconsider its holding because we have reached a different conclusion on that question.
16
Furthermore we have difficulty perceiving how we could properly invite the Kansas Supreme Court to interpret the Republic 'A' contract in light of the orders with a view to possible abatement of the federal question. That contract was not in any respect made an issue in this lawsuit—indeed, Republic is not a party; the controversy is solely between the appellant and the State and concerns only the validity of the orders. To invite consideration by the Kansas Supreme Court of the possible accommodation of the contract with the orders so as to avoid the asserted invalid trespass on the federal regulatory area, is necessarily to ask the Kansas court to do one of two things: (1) to determine whether the orders can be accommodated with a contract which is in no sense before the court and in the absence of one of the contracting parties; or (2) to vacate its holding that the orders are not invalid for encroachment on the federal domain, and abstain from deciding that question pending the decision of some action which may squarely pit the contract against the orders. In the circumstances, to follow the suggestion to remand would on our part be highly irregular.
17
In any event the suggestion misconceives the true nature of the question which the Kansas Supreme Court and this Court were called upon to decide. The federal question does not arise from an asserted actual and immediate conflict between the federal and state regulations. The question is whether the state orders may stand in the face of the pervasive scope of federal occupation of the field. Cf. San Diego Building Trades Council, etc. v. Garmon, supra, 359 U.S. at 241—244, 79 S.Ct. at 777—779. Indeed, even if the issue of the accommodation of the Republic 'A' contract with the orders had been actually framed in the lawsuit, the mere fact that the Kansas court might make the suggested accommodation would not necessarily permit the Kansas court or this Court to avoid decisions of the federal question, since even then it would have to be determined whether the orders invalidly jeopardize the Natural Gas Act's objective of uniformity. See Federal Power Comm'n v. Transcontinental Gas Pipe Line Corp., supra, 365 U.S. at 28, 81 S.Ct. at 449. For, if the federal question could be avoided or postoponed just short of actual collision, by ad hoc accommodation on the part of every State, then the scope of federal regulatory power would vary in accordance with the kaleidoscopic variations of local contract law.
18
The judgments are reversed and the causes are remanded for further proceedings not inconsistent with this opinion.
19
Reversed and remanded.
20
Mr. Justice WHITE took no part in the consideration or decision of this case.
21
Mr. Justice HARLAN, whom Mr. Justice STEWART and Mr. Justice GOLDBERG join, dissenting.
22
The conflict asserted between the Kansas Commission's 'ratable take' orders and the authority of the Federal Power Commission is that by virtue of the combined effect of such orders and the minimum 'take or pay' provisions of Northern's Republic 'A' contract the consumer price of Northern's gas sold in interstate commerce will be forced up, thereby potentially embarrassing the Federal Power Commission's effective exercise of its authority over such prices.1 The premise of this alleged conflict is of course that Northern's Republic 'A' contractual obligations remain unaffected by the Kansas Commission's ratable take orders.
23
The appellee Commission says that even if all this be correct its orders are nonetheless valid. The Federal Power Commission as amicus, while denying this conclusion, says, however, that no significant conflict with federal authority would arise if the effect of the State Commission's orders is to abrogate take or pay provisions such as those contained in the Republic 'A' contract, and suggests that the case be remanded to the Kansas Supreme Court for determination of that question of state law. This would obviate the necessity of our deciding at this time any questions of federal law.
24
Without intimating any view upon the federal questions,2 it seems to me that the Federal Power Commission's suggestion is an obviously sensible one. Cf. Northern Natural Gas Co. v. Republic Natural Gas Co., 172 Kan. 450, 241 P.2d 708. The Court's opinion, as I understand it, gives three principal reasons for refusing to remand: (1) the State Commission's orders are in any event invalid per se because they bear upon purchasers and not producers of natural gas; (2) even if Northern were no longer bound by the quantity obligations of its Republic 'A' contract, the Kansas orders would still be invalid because they require Kansas purchasers who previously took gas unratably to readjust their purchasing patterns, which might possible affect ultimate consumer prices; and (3) the Kansas Supreme Court in fact reached and decided the federal questions and, apart from that, there are other reasons that would make remand a 'highly irregular' course. I can see little or nothing in any of these objections to remand.
I.
25
That the Kansas orders are directed at purchasers should not be allowed to obscure their true nature. The production of natural gas and its movement into interstate channels constitute one and the same physical operation. Thus the Kansas orders limiting the volume of gas a pipeline may purchase from a given well are tantamount to a limitation on the production of that well. Indeed an order directed to the purchaser of the gas rather than to the producer would seem to be the most feasible method of providing for ratable taking, because it is the purchaser alone who has a first-hand knowledge as to whether his takes from each of his connections in the field are such that production of the wells is ratable.3 An order addressed simply to producers requiring each one to produce ratably with others with whose activities it is unfamiliar and over whose activities it has no control would create obvious administrative problems.4
26
There is thus no warrant for concluding that just because the Kansas orders read 'purchaser' rather than 'producer' they are an attempt to regulate the interstate sale of natural gas. Their purpose and effect are to limit production—the physical act of drawing gas from the earth. To the extent, then, that appellant's operations control the volume of gas produced, they involve 'production and gathering, in the sense that those terms are used in (the) § 1(b)' exemption of the Natural Gas Act. Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 678, 74 S.Ct. 794, 797, 98 L.Ed. 1035.
27
But regardless of whether the § 1(b) exemption is applicable here, the orders do not necessarily invade areas reserved to exclusive federal authority.5 The mere fact that they are directed at purchasers does not, of itself, interfere with the Federal Power Commission's functions of certification (§ 7 of the Act) or rate regulation (§§ 4 and 5 of the Act).6 And I find it hard to reconcile the Court's holding on this score with its statement that 'conservation measures aimed directly at interstate purchasers * * * cannot be sustained when they threaten, as here, the achievement of the comprehensive scheme of federal regulation.' p. 94. (Emphasis added.) As will be shown (pp. 103—106), this threat, if it exists at all in this case, is no different from that flowing from other valid conservation measures.
28
The Federal Power Commission itself acknowledges that if the Kansas orders release appellant and others from contractual obligations of the sort in question here, then such orders would entail no significant conflict with federal authority. The Commission states: 'In that event, despite the fact that the Kansas regulation is in terms addressed to interstate pipeline companies rather than to Kansas producers, we would not urge that it so impinged upon matters of national, as opposed to local, concern, or that it so interfered with the regulatory functions and purposes of the Federal Power Commission under the Natural Gas Act, as to require its invalidation under the supremacy clause.'7 For the further reasons that will now be discussed, I think this is a perfectly sound position.
II.
29
Of course a remand is unnecessary if, as in the Court's view, the Kansas Commission's orders are invalid even though appellant is deemed to be no longer bound by the take or pay provisions of the Republic contract. But the remote possibility of an adverse effect on the cost structures of Kansas purchasers falls far short of establishing such invalidity.
30
The ratable take orders here were intended as conservation measures8—to protect the correlative rights of producers taking gas from a common source of supply by preventing drainage from underproduced wells to overproduced wells.9 It has always been recognized that the States possess the power to conserve scarce resources such as natural gas and to prevent unfair and discriminatory production of this resource by some wells at the expense of others. See, e.g., Patterson v. Stanolind Oil & Gas Co., 305 U.S. 376, 59 S.Ct. 259, 83 L.Ed. 231; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369; Ohio Oil Co. v. Indiana, 177 U.S. 190, 20 S.Ct. 576, 44 L.Ed. 729. It is difficult to imagine any exercise of this conservation power that would not carry with it the possibility of affecting the costs incurred by those who purchase gas from producers. Regulations requiring the casing of wells, prohibiting the use of pumps, restricting production to a certain percent of a well's 'open flow,' imposing a particular gasoil ratio, controlling drilling operations and pipeline pressure, prescribing the permissible spacing of wells, and enforcing pooling or unitization may reduce the amount of gas available for sale by a particular producer (at least in the short run) and thus force a purchaser to buy from it or someone else probably at greater cost. Yet it has never been suggested that such state measures are for that reason invalid.
31
Indeed, the most direct interference with the availability of gas for interstate sale is the 'allowable' order. It places a ceiling on the amount of gas that may be produced by a particular well during a given period of time and inevitably makes pipelines spread their demand among many wells. Obviously its possible effect on cost is precisely the same as that which may be caused by a ratable take order, for the two orders are merely variations of the same regulatory measure; both are designed to prevent the disproportionate taking of gas from some wells to the disadvantage of others.
32
In Champlin Refining Co. v. Corporation Comm'n, 286 U.S. 210, 52 S.Ct. 559, 76 L.Ed. 1062 (1932), this Court sustained, against a challenge under the Commerce Clause, a state allowable order. Since the States had the power to issue such an order at the time the Natural Gas Act was passed, nothing in that Act can now be considered to withdraw it. This is so because it is beyond dispute that when Congress enacted the Natural Gas Act in 1938 it did not intend to deprive the States of any regulatory powers they were then deemed to possess under the Constitution. Rather, the Act was intended only to fill the 'gap * * * thought to exist at the time the Natural Gas Act was passed' by providing for federal regulation of those aspects of the natural gas business that the States were at that time believed to be constitutionally incapable of regulating. Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 684, 685—687, 74 S.Ct. 794, 800—801, 98 L.Ed. 1035. As was specifically stated in the House Committee Report, the Act 'takes no authority from State commissions, and is so drawn as to complement and in no manner usurp State regulatory authority.' H.R.Rep. No. 709, 75th Cong., 1st Sess., p. 2.10
33
If an allowable order is now valid, what is the distinction between such an order and the ratable take orders in the present case? The Court points to no difference in terms of effect on cost structure, but only to the fact that the orders here are directed at purchasers and not producers. For reasons already discussed, supra, pp. 100—102, this difference is illusory.
34
Quite apart from the absence of any significant difference between the possible general cost ramifications of an allowable and a ratable take order, the very facts of the case before us demonstrate the folly of determining whether or not the jurisdiction of the Federal Power Commission has been invaded on the basis of general possibilities unsupported by specific data. Appellant is paying a higher price for gas to Republic than to any other producer in the Kansas Hugoton Field. If appellant could reduce its take from Republic wells without contractual liability, the over-all cost of its gas purchases would in all likelihood decrease. Surely such a beneficial effect on appellant's cost structure is not inconsistent with the purposes of the Natural Gas Act. And we have no way of knowing the extent to which the same is true of other Kansas purchasers. The lurking danger of collision with federal regulation that the Court fears may be completely nonexistent. Yet on this insecure foundation the Court builds a rule that, if consistently applied, may well destroy the conservation powers of the States. And this in the name of an Act expressly intended to preserve existing state powers.
III.
35
The Court's remaining arguments against remand are equally unsatisfactory.
36
It is said that the Kansas Supreme Court did not rest its decision on a state ground (the abrogation, by virtue of the Commission's orders, of Northern's take or pay obligations under the Republic contract), but decided the federal questions. Whatever may have prompted the state court to this course—perhaps a desire to obtain from this Court a broad decision on the federal question or a mistaken belief as to the irrelevancy of the contract question to the existence of the state power now questioned—this surely does not constrict the grounds of our adjudication of the case. It is familiar practice for this Court to refuse to reach federal constitutional questions on which the state courts have predicated decision. It is enough to refer to the landmark concurring opinion of Mr. Justice Brandeis in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346—348, 56 S.Ct. 466, 482—483, 80 L.Ed. 688, enumerating principles designed to avoid the unnecessary adjudication of constitutional questions a tenet of adjudication to which this Court has always strictly adhered.
37
A remand, it is also said, would be a 'highly irregular' step for the further reasons that the effect of the State Commission's orders on the Republic 'A' contract was not drawn in question in this suit and the Republic Company itself was not a party to the litigation. However, in light of what has already been said the germaneness of that contract issue to the question of the validity of state power in the premises is apparent. And apart from the presumed availability of state procedures for the vouching into the case of the Republic Company, we are informed by the Federal Power Commission that there is now pending in the state courts another case against Northern, to which Republic is a party, that involves the continuing validity of the take or pay provisions of the 'A' contract.11 Hence, if necessary, the Kansas Supreme Court could on remand of the present case hold its hand pending resolution of the contract issue in the other litigation.
38
In short, I cannot understand why this Court should not remand for determination of a state law issue that may dispose of this case, as the Court has done in other comparable instances. See, e.g., Leiter Minerals, Inc., v. United States, 352 U.S. 220, 228—230, 77 S.Ct. 287, 292—293, 1 L.Ed.2d 267; Aquilino v. United States, 363 U.S. 509, 515—516, 80 S.Ct. 1277, 1281, 4 L.Ed.2d 1365.
39
I would vacate the judgments of the Supreme Court of Kansas and remand the case to that court for a determination, in accordance with Kansas procedures, as to the effect of the State Commission's orders on the Northern-Republic 'A' contract.
1
The general order of the Commission, which was embodied in Rule 82—2—219, provided:
RATABLE PRODUCTION OF GAS FROM COMMON SOURCE OF SUPPLY
'In each common source of supply under proration by this Commission, each purchaser shall take gas in proportion to the allowables from all the wells to which it is connected and shall maintain all such wells in substantially the same proportionate status as to overproduction or underproduction; provided, however, this rule shall not apply when a difference in proportionate status results from the inability of a well to produce proportionately with other wells connected to the purchaser (Authorized by G.S.1959, Supp. 55—703; Effective February 8, 1960).'
This order, directed generally at all purchasers within the Commission's jurisdiction, superseded an order of October 7, 1959, which specifically required appellant ' to take gas ratably from all wells to which it is connected in the Kansas Hugoton Gas Field.' When the general order was promulgated, the specific order was rescinded. The Kansas Supreme Court, however, considered the validity of both orders as though both were still in force. For purposes of our jurisdiction and consideration of the merits, it makes no difference whether the specific order survived, for the superseding general order was no less clearly directed at the appellant.
2
For a history of the discovery and development of the Hugoton Field, and the Kansas Commission's earlier efforts to insure correlative rights in, and to regulate the taking of gas from, that field, see generally American Bar Association Section of Mineral Law, Conservation of Oil and Gas—A Legal History, 1948 (1949), 165—183.
3
The original Republic 'A' contract, as amended, fixed the minimum-take requirements in terms of a percentage of appellant's natural gas needs for a particular district which it served from the Hugoton Field. A decision of the Kansas Supreme Court in 1952 modified that term of the contract by holding that appellant's takes from particular Republic wells could not exceed the production allowables set by the Commission for those wells, regardless of whether the total allowables might be lower than the percentage stipulated by the contract. Northern Natural Gas Co. v. Republic Natural Gas Co., 172 Man. 450, 241 P.2d 708.
4
The substantial underages in appellant's purchases were attributed to two factors: First, the rate of increase in the allowables for the wells from which appellant was taking had exceeded the increases in appellant's requirements from the Hugoton Field; and second, appellant's projected expansion of its system had been delayed unexpectedly by failure to secure the requisite certificates of convenience and necessity from the Federal Power Commission. Neither factor is material to the questions presented by this appeal.
5
The statute, as amended in 1959, is Kan.Gen.Stat., 1949 (Supp.1959), § 55—703, captioned 'Production regulations; rules and formulas.' The terms of the statute speak of 'taking' rather than 'purchasing' of natural gas; the Commission has decreed that the two terms are synonymous. It was the view of the dissenting judge in the court below, however, that the 'taking' comprehended by the statute, nowhere defined in the statute itself, referred only to production so that the Commission lacked authority under state law to regulate purchasing in the manner of the present orders. See 188 Kan. 355, 365, 362 P.2d 599, 606.
6
The operative clause of this order designated the order as the basic guide for 'the production of natural gas' from the Hugoton Field. No provisions of the order imposed enforceable obligations or sanctions upon purchasers, although one section admonished, '* * * purchasers * * * from any well, shall endeavor to limit their takes of gas to the quantities fixed in the schedule as the allowable production for such well * * *.'
7
Pending in a Kansas trial court are two suits by Republic against appellant to recover damages for appellant's failure to purchase gas in the quantities required by the contracts.
8
Thus we have no need to consider the effect of the 'production or gathering' exemption upon ratable-take orders directed exclusively at independent producers of natural gas. For contrasting views on that question, compare Kelly, Gas Proration and Ratable Taking in Texas, 19 Tex.Bar J. 763, 797 (1956), with Comment, Ratable Taking of Natural Gas, 11 S.W.L.J. 358, 360—361 (1957).
9
Persistent efforts to narrow the scope of the broader exclusive federal jurisdiction conferred by the statute have been unavailing. See, inter alia, H.R. 4051, 80th Cong., 1st Sess.; H.R. 4099, 80th Cong., 1st Sess.; H.R. 1758, 81st Cong., 1st Sess.; and S. 1498, 81st Cong., 1st Sess. 'Attempts to weaken this protection (of consumers against exploitation at the hands of natural-gas companies) by amendatory legislation exempting independent natural-gas producers from federal regulation have repeatedly failed, and we refuse to achieve the same result by a strained interpretation of the existing statutory language.' Phillips Petroleum Co. v. Wisconsin, supra, 347 U.S. at 685, 74 S.Ct. at 801.
10
Our decisions in Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U.S. 179, 71 S.Ct. 215, 95 L.Ed. 190, and Phillips Petroleum Co. v. Oklahoma, 340 U.S. 190, 71 S.Ct. 221, 95 L.Ed. 204, are not contrary. 'In those cases we were dealing with constitutional questions and not the construction of the Natural Gas Act.' Natural Gas Pipeline Co. v. Panoma Corp., supra, 349 U.S. at 45, 75 S.Ct. at 576.
11
See American Bar Association Section of Mineral and Natural Resources Law, Conservation of Oil and Gas—A Legal History, 1958 (1960), 342.
12
See, e.g., Colorado Interstate Gas Co. v. Federal Power Comm'n, supra, 324 U.S. at 602—603, 65 S.Ct. at 839; cf. Patterson v. Stanolind Oil & Gas Co., supra. The availability of regulatory alternatives, particularly
in the form of proration and similar orders directed at producers, has been much discussed. See the view of a member of the Kansas Corporation Commission, Byrd, Contractual and Property Rights as Affected by Conservation Laws and Regulations, Tenth Annual Institute on Oil and Gas Law and Taxation, 1, 6—7 (1959); see also American Bar Association Section of Mineral Law, Conservation of Oil and Gas—A Legal History, 1948 (1949), 170—171; Kulp, Oil and Gas Rights (1954), § 10.100; 1 Kuntz, Treatise on the Law of Oil and Gas (1962), § 4.7.
It has been urged that as a practical matter restrictions upon purchasers more effectively and easily achieve ratable taking, see 1A Summers, Oil and Gas (1954), 139 and n. 9.30. On the contrary, it has also been argued that the very objectives sought to be achieved here may be achieved through ratable production orders, Comment, Ratable Taking of Natural Gas, 11 S.W.L.J. 358, 359, 362 (1957). We note too the suggestion of a witness in the proceeding below that the result sought by the orders herein might have been achieved by requiring Republic to decrease production from its wells rather than by requiring appellant to increase its purchases from those wells. R. 33. This apparently was also the view of the dissenting judge below, 188 Kan., at 365, 362 P.2d, at 606. See, as to the obligation of the States to pursue alternatives which avoid interference with federally protected interstate commerce, Dean Milk Co. v. Madison, 340 U.S. 349, 354—356, 71 S.Ct. 295, 297—298, 95 L.Ed. 329.
There is no occasion to consider appellant's further argument that the Kansas Commission's orders were tainted by an improper motive, that is, to require overproduction of Kansas Hugoton wells in order to prevent disadvantageous drainage to Texas and Oklahoma, which share the Hugoton Field with Kansas. The relevancy of motive to the validity of such regulations has been questioned. Stephenson v. Binford, 287 U.S. 251, 276, 53 S.Ct. 181, 188, 77 L.Ed. 288. See, however, Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55, 69—70, 57 S.Ct. 364, 371, 81 L.Ed. 510, where the Court invalidated a state proration order 'shown to bear no reasonable relation either to the prevention of waste or the protection of correlative rights * * *.'
1
These effects, as claimed by the appellant and the Federal Power Commission, are summarized in the appellee's principal brief on this appeal (p. 26) as follows: 'To comply with the Kansas orders by taking ratably in the Kansas Hugoton Field, appellant, it is argued, would have to do one of two things: (1) increase its takes from its other connections in the field until they become ratable with its takes from the Republic A wells, or (2) continue to take the same amount from the field as a whole but reallocate its takes so as to make them ratable by decreasing takes from Republic to a figure below the amount provided by the contract and increasing takes from other wells. It is contended that the first of these courses would require appellant either to take from the Kansas Hugoton Field gas which it does not want and for which it has no present market or to reduce its takes in other fields and thereby incur contractual liability to producers in those fields, and that the second would result in contractual liability to Republic. Either course, it is argued, will necessarily cause an increase in the price of gas to the ultimate consumer, and for this reason the Kansas orders are inconsistent with the Natural Gas Act.'
2
At the 1958 Term the Court dismissed for want of a substantial federal question an appeal presenting substantially the same broad federal question which the Court decides today. See Permian Basin Pipeline Co. v. Railroad Comm'n, 358 U.S. 37, 79 S.Ct. 21, 3 L.Ed.2d 43 (reported below at Tex.Civ.App., 302 S.W.2d 238; and see the Jurisdictional Statement in this Court, No. 64, Oct. Term, 1958).
3
Most of the more important oil and gas producing States have long had statutes providing for ratable taking by purchasers to protect correlative rights. See Tex.Stat.Ann., Tit. 102, Art. 6049a, §§ 8, 8a (enacted in 1931); Okla.Stat.Ann., Tit. 52, § 240 (enacted in 1915); La.Rev.Stat., 1950, Tit. 30, §§ 41—46 (enacted in 1918).
4
In these circumstances the situation here is hardly comparable to one in which a State has attempted to impose upon a foreign corporation, not doing business in the State, liability for the collection of a use tax with respect to goods purchased by residents of the taxing State at a store of the corporation located in the State of its domicile. See Miller Bros. Co. v. Maryland, 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed. 744. Surely the Natural Gas Act was not intended to relieve interstate pipelines doing business in a particular State from the mere mathematical computation involved in ratably distributing its over-all need for natural gas among the producers with which it has business connections in that State.
5
As this Court noted in Federal Power Comm'n v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 8, 81 S.Ct. 435, 439, 5 L.Ed.2d 377: '* * * Congress, in enacting the Natural Gas Act, did not give the Commission comprehensive powers over every incident of gas production, transportation and sale. Rather, Congress was 'meticulous' only to invest the Commission with authority over certain aspects of this field, leaving the residue for state regulation.'
6
That criminal penalties for noncompliance are imposed on purchasers adds nothing to the fact that the orders are addressed to purchasers.
7
Memorandum for the Federal Power Commission as amicus curiae, pp. 21—22.
8
The Court disclaims any need to consider the contention that the true purpose of the Kansas orders was to require overproduction of the Kansas part of the Hugoton Field in order to prevent its drainage into Texas and Oklahoma (pp. 94—95, note 12).
9
When one well in a common pool produces a large volume of gas, the pressure is reduced at that point; the gas in the common pool then tends to flow toward the low pressure point, thereby reducing the amount of gas available for production by other wells.
10
See also Panhandle Eastern Pipe Line Co. v. Public Service Comm'n, 332 U.S. 507, 517, 68 S.Ct. 190, 195, 92 L.Ed. 128 ('The Act, though extending federal regulation, had no purpose or effect to cut down state power'); Federal Power Comm'n v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 502—503, 512—513, 69 S.Ct. 1251, 1254—1255, 1259—1260, 93 L.Ed. 1499; Interstate Natural Gas Co. v. Federal Power Comm'n, 331 U.S. 682, 690, 67 S.Ct. 1482, 1487, 91 L.Ed. 1742.
11
Republic Natural Gas Co. v. Northern Natural Gas Co., Nos. 4165 and 4235, District Court of Stevens County, Kansas, in which, we are told, Republic claims damages from Northern for failure to observe the take or pay provisions of the 'A' contract.
| 910
|
372 U.S. 53
83 S.Ct. 618
9 L.Ed.2d 580
UNITED STATES, Petitioner,v.Talbot PATRICK et al.
No. 22.
Reargued Dec. 6, 1962.
Decided Feb. 18, 1963.
Wayne G. Barnett, Washington, D.C., for petitioner.
Robert M. Ward, Rock Hill, S.C., for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This case presents the question, similar to that decided today in No. 21, United States v. Gilmore, 372 U.S. 39, 83 S.Ct. 623, as to the deductibility of certain legal fees paid by the respondent to his attorneys and attorneys representing his wife in connection with divorce proceedings instituted by the wife. In a suit for refund contesting the Commissioner's disallowance of such a deduction claimed in the taxpayer's 1956 federal income tax return, the United States District Court for the Western District of South Carolina held these expenses to be deductible under § 212(2) of the Internal Revenue Code of 19541 186 F.Supp. 48, the Court of Appeals affirmed, 288 F.2d 292, and we granted certiorari on the Government's petition, 368 U.S. 817, 82 S.Ct. 57, 7 L.Ed.2d 22.2
2
In 1955 respondent's wife3 sued for divorce, alleging adultery on the part of her husband. Extended negotiations by the attorneys for both parties resulted in a property settlement agreement, and thereafter respondent filed his answer to the complaint neither admitting nor denying the allegations of adultery. Respondent did not testify at the trial. The South Carolina divorce court granted the wife an absolute divorce, approved the property settlement agreement, and in accordance therewith ordered respondent to pay the attorneys' fees for both parties.
3
At the time of these proceedings, respondent was president of the Herald Publishing Company in Rock Hill, South Carolina, and editor of the newspaper published by it. He owned 28% of the corporation's outstanding stock, his wife owned 28%, their oldest son, Hugh Patrick, owned 9%, and the remaining 35% was held in trusts for Hugh and the parties' two minor children. The real property on which the Herald Company was situated was owned by respondent and his wife, the former having an 80% undivided interest and the latter a 20% undivided interest. The couple also owned two houses. In addition, each independently owned diversified securities and other assets of substantial value.
4
The property settlement agreement recited that 'by virtue of this agreement a final and lump settlement has been made of any and all rights whatsoever * * * concerning the matter of support, separate maintenance, alimony or any financial obligation of whatsoever sort due to (the wife) * * * on account of and growing out of the marital relationship of the parties * * *.' Besides provisions for the custody and support of the minor children and a provision giving one of the two houses to each of the parties, certain arrangements were made concerning the respective interests in the newspaper properties. Respondent delivered to his wife high-quality securities worth $112,000, the agreed value of her 28% of the publishing company stock, which she transferred to him subject to the condition that such stock should go to their three children in the the event of his death or a sale of the entire business. A new long-term lease of the real property housing the newspaper was entered into with the corporation, and both parties then transferred their interests in this property to a trust, the income therefrom being payable to the wife for life and the remainder to pass in equal shares to the children. Finally, respondent agreed to pay all of his wife's attorneys' fees for services rendered in connection with the divorce and property settlement arrangements.
5
These fees, paid by respondent in 1956, amounted to $24,000 $12,000 to his attorneys and $12,000 to his wife's attorneys. The $24,000 total was allocated by agreement of counsel and the parties as follows: $4,000 for handling the divorce itself; $16,000 for rearranging the stock interests in the publishing company; and $4,000 for leasing the real property and transferring it to a trust. Respondent claimed a deduction for the $16,000 item and for 80% of the $4,000 ($3,200) item relating to the business real estate.
6
Both courts below held that the entire $19,200 was deductible under § 212(2) of the 1954 Code as an 'ordinary and necessary (expense) paid or incurred * * * for the management, conservation, or maintenance of property held for the production of income.' The Government's contention that this was a personal expense, nondeductible under § 262 of the Code,4 was rejected. Relying on Baer v. Commissioner, 8 Cir., 196 F.2d 646, and cases following it (see No. 21, 372 U.S. pp. 49—51, 83 S.Ct. pp. 629—630), the District Court and the Court of Appeals found that the fees were incurred not to resist a liability, but to arrange how it could be met without depriving the taxpayer of income-producing property, the loss of which would have destroyed his capacity to earn income. The property settlement provisions, so the lower courts held, were designed to satisfy respondent's marital obligations to his wife and protect the interests of the children, yet at the same time preserve respondent's control over the publishing company, to which he had devoted many years of effort.
7
The situation, in short, is comparable to that in United States v. Gilmore, supra. The principles held governing in that case are equally applicable here. It is evident that the claims asserted by the wife in the divorce action arose from respondent's marital relationship with her and were thus the product of respondent's personal or family life, not profit-seeking activity. As we have held in Gilmore, payments made for the purpose of discharging such claims are not deductible as 'business' expenses.
8
We find no significant distinction in the fact that the legal fees for which deduction is claimed were paid for arranging a transfer of stock interests, leasing real property, and creating a trust rather than for conducting litigation. These matters were incidental to litigation brought by respondent's wife, whose claims arising from respondent's personal and family life were the origin of the property arrangements. The property settlement agreement itself recited that it settled rights 'growing out of the marital relationship,' supra, p. 55, and both courts below found that, although nominally an agreement for the purchase of the wife's property, it served ultimately to protect respondent's income-producing property from an assertion of his wife's latent marital rights. It would be unsound to make deductibility turn on the nature of the measures taken to forestall a claim rather than the source of the claim itself.
9
As in the Gilmore case, we need not pass on the Government's alternative contention that part of the legal fees sought to be deducted here are not expenses at all, but rather are capital outlays. Since we hold that the payments were not deductible as 'business' expenses, it makes no difference for present purposes whether they are personal expenses or capital expenditures; in either case they would not be deductible.5
10
We conclude that none of the legal fees paid by respondent is deductible, and the judgment of the Court of Appeals is accordingly reversed.
11
Reversed.
12
Mr. Justice BLACK and Mr. Justice DOUGLAS dissent.
1
Section 212 provides, in pertinent part: 'In the case of an individual, there shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year—* * * (2) for the management, conservation, or maintenance of property held for the production of income * * *.'
2
This case was argued at the 1961 Term, and was restored to the calendar for reargument at this Term. 369 U.S. 835, 82 S.Ct. 864, 7 L.Ed.2d 841.
3
Mr. Patrick will be referred to as the sole respondent. The administrator of the estate of his second wife is a party only because a joint return was filed. Respondent's former wife will be referred to as the 'wife' notwithstanding the divorce.
4
Section 262 provides: 'Except as otherwise expressly provided in this chapter, no deduction shall be allowed for personal, living, or family expenses.'
5
In view of our conclusion that the legal fees were not 'business' expenses, we do not reach the Government's second alternative contention that at least the fees paid by respondent to his wife's attorneys were not deductible under prior decisions of this Court. See, e.g., Magruder v. Supplee, 316 U.S. 394, 62 S.Ct. 1162, 86 L.Ed. 1555; Interstate Transit Lines v. Commissioner, 319 U.S. 590, 63 S.Ct. 1279, 87 L.Ed. 1607.
| 1112
|
372 U.S. 224
83 S.Ct. 621
9 L.Ed.2d 695
Angelika L. SCHNEIDER, Petitioner,v.Dean RUSK, Secretary of State.
No. 251.
Decided Feb. 18, 1963.
PER CURIAM.
1
Trial of this case should have been before a three-judge District Court convened pursuant to 28 U.S.C. §§ 2282, 2284, as petitioner requested. Her complaint explicitly sought an 'injunction restraining the enforcement, operation or execution of * * * (an) Act of Congress'—s 352(a)(1) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1484(a)(1), which provides that a naturalized American citizen shall lose his nationality by 'having a continuous residence for three years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated * * *.' The District Court concluded that petitioner's complaint presented no substantial constitutional issue and denied petitioner's motion to convene a three-judge court, relying on Lapides v. Clark, 85 U.S.App.D.C. 101, 176 F.2d 619 (1949), cert. denied, 338 U.S. 860, 70 S.Ct. 101, 94 L.Ed. 527, in which the Court of Appeals for the District of Columbia Circuit had directly upheld the predecessor of a companion provision, § 352(a)(2) of the 1952 Act, 8 U.S.C. § 1484(a)(2), which deprived the naturalized American of his citizenship for residing for five years in any foreign state. The Court of Appeals' per curiam affirmance was also based on Lapides. Although no view is here intimated as to the merits of the constitutional question in the present case, we disagree with the conclusion of the courts below as to the substantiality of that issue. The intervening decisions of this Court in Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603, and Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 596, reveal that the constitutional questions involving deprivation of nationality which were presented to the district judge were not plainly insubstantial. The single-judge District Court was therefore powerless to dismiss the action on the merits, and should have convened a three-judge court. Ex parte Northern Pac. R. Co., 280 U.S. 142, 144, 50 S.Ct. 70, 74 L.Ed. 233; Stratton v. St. Louis S.W.R. Co., 282 U.S. 10, 15, 51 S.Ct. 8, 10, 75 L.Ed. 135; Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152; Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794. The judgments below are vacated and the case is remanded to the District Court for expeditious action consistent with the views here expressed.
2
So ordered.
| 12
|
372 U.S. 144
83 S.Ct. 554
9 L.Ed.2d 644
Robert F. KENNEDY, Attorney General of the United States, Appellant,v.Francisco MENDOZA-MARTINEZ. Dean RUSK, Secretary of State, Appellant, v. Joseph Henry CORT.
Nos. 2, 3.
Reargued Dec. 4 and 5, 1962.
Decided Feb. 18, 1963.
[Syllabus from pages 144-145 intentionally omitted]
No. 2:
Bruce J. Terris, Washington, D.C., for appellant.
Thomas R. Davis, for appellee.
No. 3:
J. William Doolittle, Washington, D.C., for appellant.
Leonard B. Boudin, New York City, for appellee.
Mr. Justice GOLDBERG delivered the opinion of the Court.
1
We are called upon in these two cases to decide the grave and fundamental problem, common to both, of the constitutionality of Acts of Congress which divest an American of his citizenship for '(d)eparting from or remaining outside of the jurisdiction of the United States in time of war or * * * national emergency for the purpose of evading or avoiding training and service' in the Nation's armed forces.1
I. THE FACTS.
2
A. Mendoza-Martinez—No. 2.
3
The facts of both cases are not in dispute. Mendoza-Martinez, the appellee in No. 2, was born in this country in 1922 and therefore acquired American citizenship by birth. By reason of his parentage, he also, under Mexican law, gained Mexican citizenship, thereby possessing dual nationality. In 1942 he departed from this country and went to Mexico solely, as he admits, for the purpose of evading military service in our armed forces. He concedes that he remained there for that sole purpose until November 1946, when he voluntarily returned to this country. In 1947, in the United States District Court for the Southern District of California, he pleaded guilty to and was convicted of evasion of his service obligations in violation of § 11 of the Selective Training and Service Act of 1940.2 He served the imposed sentence of a year and a day. For all that appears in the record, he was, upon his release, allowed to reside undisturbed in this country until 1953, when, after a lapse of five years, he was served with a warrant of arrest in deportation proceedings. This was premised on the assertion that, by remaining outside the United States to avoid military service after September 27, 1944, when § 401(j) took effect, he had lost his American citizenship. Following hearing, the Attorney General's special inquiry officer sustained the warrant and ordered that Mendoza-Martinez be deported as an alien. He appealed to the Board of Immigration Appeals of the Department of Justice, which dismissed his appeal.
4
Thereafter, Mendoza-Martinez brought a declaratory judgment action in the Federal District Court for the Southern District of California, seeking a declaration of his status as a citizen, of the unconstitutionality of § 401(j), and of the voidness of all orders of deportation directed against him. A single-judge District Court in an unreported decision entered judgment against Mendoza-Martinez in 1955, holding that by virtue of § 401(j), which the court held to be constitutional, he had lost his nationality by remaining outside the jurisdiction of the United States after September 27, 1944. The Court of Appeals for the Ninth Circuit affirmed the judgment, 238 F.2d 239. This Court, in 1958, Mendoza-Martinez v. Mackey, 356 U.S. 258, 78 S.Ct. 713, 2 L.Ed.2d 757, granted certiorari, vacated the judgment, and remanded the cause to the District Court for reconsideration in light of its decision a week earlier in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 596.
5
On September 24, 1958, the District Court announced its new decision, also unreported, that in light of Trop § 401(j) is unconstitutional because not based on any 'rational nexus * * * between the content of a specific power in Congress and the action of Congress in carrying that power into execution.' On direct appeal under 28 U.S.C. § 1252, this Court noted probable jurisdiction, Mackey v. Mendoza-Martinez, 359 U.S. 933, 79 S.Ct. 648, 3 L.Ed.2d 635, and then of its own motion remanded the cause, this time with permission to the parties to amend the pleadings to put in issue the question of whether the facts as determined on the draft-evasion conviction in 1947 collaterally estopped the Attorney General from now claiming that Mendoza-Martinez had lost his American citizenship while in Mexico. Mackey v. Mendoza-Martinez, 362 U.S. 384, 80 S.Ct. 785, 4 L.Ed.2d 812.
6
The District Court on remand held that the Government was not collaterally estopped because the 1947 criminal proceedings entailed no determination of Mendoza-Martinez' citizenship. The court, however, reaffirmed its previous holding that § 401(j) is unconstitutional, adding as a further basis of invalidity that § 401(j) is 'essentially penal in character and deprives the plaintiff of procedural due process. * * * (T)he requirements of procedural due process are not satisfied by the administrative hearing of the Immigration Service nor in this present proceedings.'3 The Attorney General's current appeal is from this decision. Probable jurisdiction was noted on February 20, 1961, Rogers v. Mendoza-Martinez, 365 U.S. 809, 81 S.Ct. 691, 5 L.Ed.2d 689. The case was argued last Term, and restored to the calendar for reargument this Term, 369 U.S. 832, 82 S.Ct. 863, 7 L.Ed.2d 841.
7
B. Cort—No. 3.
8
Cort, the appellee in No. 3, is also a native-born American, born in Boston in 1927. Unlike Mendoza-Martinez, he has no dual nationality. His wife and two young children are likewise American citizens by birth. Following receipt of his M.D. degree from the Yale University School of Medicine in 1951, he went to England for the purpose of undertaking a position as a Research Fellow at Cambridge University. He had earlier registered in timely and proper fashion for the draft and shortly before his departure supplemented his regular Selective Service registration by registering under the newly enacted Doctors Draft Act.4 In late 1951 he received a series of letters from the American Embassy in London instructing him to deliver his passport to it to be made 'valid only for return to the United States.' He did not respond to these demands because, he now says in an affidavit filed in the trial court in this proceeding, 'I believed that they were unlawful and I did not wish to subject myself to this and similar forms of political persecution then prevalent in the United States. * * * I was engaged in important research and teaching work in physiology and I desired to continue earning a livelihood for my family.' Cort had been a member of the Communist Party while he was a medical student at Yale from 1946 to 1951, except for the academic year 1948—1949 when he was in England. In late 1952, while still in England at Cambridge, he accepted a teaching position for the following academic year at Harvard University Medical School. When, however, the school discovered through further correspondence that he had not yet fulfilled his military obligations, it advised him that it did not regard his teaching position as essential enough to support his deferment from military service in order to enter upon it. Thereafter, his local draft board in Brookline, Massachusetts, notified him in February 1953 that his request for deferment was denied and that he should report within 30 days for a physical examination either in Brookline or in Frankfurt, Germany. On June 4 and on July 3 the draft board again sent Cort notices to report for a physical examination, the first notice for examination on July 1 in Brookline, and the second for examination within 30 days in Frankfurt. He did not appear at either place, and the board on August 13 ordered him to report for induction on September 14, 1953. He did not report, and consequently he was indicted in December 1954 for violation of § 12(a) of the Selective Service Act of 19485 by reason of his failure to report for induction. This indictment is still outstanding. His complaint in this action states that he did not report for induction because he believed 'that the induction order was not issued in good faith to secure his military services, that his past political associations and present physical disabilities made him ineligible for such service, and that he was being ordered to report back to the United States to be served with a Congressional committee subpoena or indicted under the Smith Act * * *.' Meanwhile, the British Home Office had refused to renew his residence permit, and in mid-1954 he and his family moved to Prague, Czechoslovakia, where he took a position as Senior Scientific Worker at the Cardiovascular Institute. He has lived there since.
9
In April 1959, his previous United States passport having long since expired, Cort applied at the American Embassy in Prague for a new one. His complaint in this action states that he wanted the passport 'in order to return to the United States with his wife and children so that he might fulfill his obligations under the Selective Service laws and his wife might secure medical treatment for multiple sclerosis.' Mrs. Cort received a passport and came to this country temporarily in late 1959, both for purposes of medical treatment and to facilitate arrangements for her husband's return. Cort's application, however, was denied on the ground that he had, by his failure to report for induction on September 14, 1953, as ordered, remained outside the country to avoid military service and thereby automatically forfeited his American citizenship by virtue of § 349(a)(10) of the Immigration and Nationality Act of 1952, which had superseded § 401(j). The State Department's Passport Board of Review affirmed the finding of expatriation, and the Department's legal adviser affirmed the decision. Cort, through counsel, thereupon brought this suit in the District Court for the District of Columbia for a declaratory judgment that he is a citizen of the United States, for an injunction against enforcement of § 349(a)(10) because of its unconstitutionality, and for an order directing revocation of the certificate of loss of nationality and issuance of a United States passport to him. Pursuant to Cort's demand, a three-judge court was convened. The court held that he had remained outside the United States to evade military service, but that § 349(a)(10) is unconstitutional because 'We perceive no substantial difference between the constitutional issue in the Trop case and the one facing us.' It therefore concluded that Cort is a citizen of this country and enjoined the Secretary of State from withholding a passport from Cort on the ground that he is not a citizen and from otherwise interfering with his rights of citizenship. Cort v. Herter, D.C., 187 F.Supp. 683.
10
The Secretary of State appealed directly to this Court, 28 U.S.C. §§ 1252, 1253, which postponed the question of jurisdiction to the hearing of the case on the merits. Herter v. Cort, 365 U.S. 808, 81 S.Ct. 691, 5 L.Ed.2d 690. The preliminary question of jurisdiction was affirmatively resolved last Term, Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809, leaving the issue of the validity of § 349(a)(10) for decision now, after reargument. 369 U.S., at 380, 82 S.Ct. at 794.
11
Before we consider the essential question in these cases, the constitutionality of §§ 401(j) and 349(a)(10), two preliminary issues peculiar to No. 2 must be discussed.
II. THE THREE-JUDGE COURT ISSUE.
12
At the threshold in Mendoza-Martinez' case is the question whether the proceeding should have been heard by a three-judge District Court convened pursuant to 28 U.S.C. § 2282, which requires such a tribunal as a prerequisite to the granting of any 'interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States * * *.' If § 2282 governs this litigation, we are once again faced with the prospect of a remand and a new trial, this time by a three-judge panel. We are, however, satisfied that the case was properly heard by a single district judge, as both parties urge.
13
In the complaint under which the case was tried the first and second times, Mendoza-Martinez asked for no injunctive relief, and none was granted. In the amended complaint which he filed in 1960 to put in issue the question of collateral estoppel, he added a prayer asking the court to adjudge 'that defendants herein are enjoined and restrained henceforth from enforcing' all deportation orders against him. However, it is abundantly clear from the amended trial stipulation which was entered into by the parties and approved by the judge to 'govern the course of the trial,' that the issues were framed so as not to contemplate any injunctive relief. The first question was articulated only in terms of whether the Government was 'herein estopped by reason of the indictment and conviction of plaintiff for (draft evasion) * * * from denying that the plaintiff is now a national and citizen of the United States.' The second question asked only for a declaration as to whether § 401(j) was 'unconstitutional, either on its face or as applied to the plaintiff herein.' The conclusion that no request for injunctive relief nor even any contemplation of it attended the case as it went to trial is borne out by the total lack of reference to injunctive relief in the District Court's memorandum opinion, findings of fact and conclusions of law, and judgment. See Mendoza-Martinez v. Rogers, D.C., 192 F.Supp. 1. The relief granted was merely a declaration that the 1944 Amendment 'is unconstitutional, both on its face and as applied to the plaintiff herein,' and '(t)hat the plaintiff is now, and ever since the date of his birth has been, a national and citizen of the United States.' Thus, despite the amendment to Mendoza-Martinez' complaint before the third trial, it is clear that neither the parties nor the judge at any relevant time regarded the action as one in which injunctive relief was material to the disposition of the case. Since no injunction restraining the enforcement of § 401(j) was at issue, § 2282 was not in terms applicable to require the convening of a three-judge District Court.
14
Whether an action solely for declaratory relief would under all circumstances be inappropriate for consideration by a three-judge court we need not now decide, for it is clear that in the present case the congressional policy underlying the statute was not frustrated by trial before a single judge. The legislative history of § 2282 and of its complement, § 2281,6 requiring three judges to hear injunctive suits directed against federal and state legislation, respectively, indicates that these sections were enacted to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme, either state or federal, by issuance of a broad injunctive order. Section 2281 'was a means of protection the increasing body of state legislation regulating economic enterprise from invalidation by a conventional suit in equity. * * * The crux of the business is procedural protection against an improvident state-wide doom by a federal court of a state's legislative policy. This was the aim of Congress * * *.' Phillips v. United States, 312 U.S. 246, 250—251, 61 S.Ct. 480, 483, 85 L.Ed. 800. Repeatedly emphasized during the congressional debates on § 2282 were the heavy pecuniary costs of the unforeseen and debilitating interruptions in the administration of federal law which could be wrought by a single judge's order, and the great burdens entailed in coping with harassing actions brought one after another to challenge the operation of an entire statutory scheme, wherever jurisdiction over government officials could be acquired, until a judge was ultimately found who would grant the desired injunction. 81 Cong.Rec. 479—481, 2142—2143 (1937).
15
The present action, which in form was for declaratory relief and which in its agreed substance did not contemplate injunctive relief, involves none of the dangers to which Congress was addressing itself. The relief sought an the order entered affected an Act of Congress in a totally noncoercive fashion. There was no interdiction of the operation at large of the statute. It was declared unconstitutional, but without even an injunctive sanction against the application of the statute by the Government to Mendoza-Martinez. Pending review in the Court of Appeals and in this Court, the Government has been free to continue to apply the statute. That being the case, there is here no conflict with the purpose of Congress to provide for the convocation of a three-judge court whenever the operation of a statutory scheme may be immediately disrupted before a final judicial determination of the validity of the trial court's order can be obtained. Thus there was no reason whatever in this case to invoke the special and extraordinary procedure of a three-judge court. Compare Schneider v. Rusk, 372 U.S. 224, 83 S.Ct. 621, decided this day.
III. THE COLLATERAL-ESTOPPEL ISSUE.
16
Mendoza-Martinez' second amended complaint, filed in 1960 pursuant to the suggestion of this Court earlier that year, charged that 'the government of the United States has admitted the fact of his United States citizenship by virtue of the indictment and judgment of conviction (in 1947 for draft evasion) * * * and is therefore collaterally estopped now to deny such citizenship * * *.' The District Court rejected this assertion. Mendoza-Martinez renews it here as an alternative ground for upholding the judgment entered below 'That the plaintiff is now, and ever since the date of his birth has been, a national and citizen of the United States.' 192 F.Supp., at 3.
17
We too reject Mendoza-Martinez' contention on this point. His argument, stated more fully, is as follows: The Selective Training and Service Act of 1940 applies only to citizens and resident aliens. Both the indictment and the judgment spoke in terms of his having remained the Mexico for the entire period from November 15, 1942, until November 1, 1946, when he returned to this country.7 For the period from September 27, 1944, when § 401(j) became effective, until November 1, 1946, he could not have been in violation of our draft laws unless he remained a citizen of the United States, since the draft laws do not apply to nonresident aliens. Therefore, he concludes, the Government must be taken to have admitted that he did not lose his citizenship by remaining outside the country after September 27, 1944, because it charged him with draft evasion for that period as well as for the period preceding that date.
18
It is true that 'as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered,' Cromwell v. County of Sac, 94 U.S. 351, 353, 24 L.Ed. 195, the findings in a prior criminal proceeding may estop a party in a subsequent civil action, Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 568—569, 71 S.Ct. 408, 413 414, 95 L.Ed. 534, and that the United Staes may be estopped to deny even an erroneous prior determination of status, United States v. Moser, 266 U.S. 236, 45 S.Ct. 66, 69 L.Ed. 262. However, Mendoza-Martinez' citizenship status was not at issue in his trial for draft evasion. Putting aside the fact that he pleaded guilty, which in itself may support the conclusion that his citizenship status was not litigated and thereby without more preclude his assertion of estoppel,8 the basic flaw in his argument is in the assertion that he was charged with a continuing violation of the draft laws while he remained in Mexico, particularly after September 27, 1944, the date on which § 401(j) became effective. He was in fact charged with a violation 'on or about November 15, 1942,' because he 'did knowingly evade service * * * in that he did knowingly depart from the United States and go to a foreign county, namely: Mexico, for the purpose of evading service * * *.' This constituted the alleged violation. The additional language that he 'did there remain until on or about November 1, 1946,' was merely surplusage in relation to the substantive offense, although it might, for example, serve a purpose in relation to problems connected with the tolling of the statute of limitations. No language appears charging the elements of violation—knowledge and purpose to evade in connection with it. The only crime charged is what happened 'on or about November 15, 1942,' and conviction thereon, even if it had entailed a finding as to Mendoza-Martinez' citizenship on that date,9 in nowise estopped the Government with reference to his status after September 27, 1944.
19
The trial court's judgment was worded no differently. Mendoza-Martinez was convicted of:
20
'Having on or about November 15th 1942, knowingly departed from the United States to Mexico, for the purpose of evading service in the land or naval forces of the United States and having remained there until on or about November 1st 1946.'
21
Again, the language relating to the time during which Mendoza-Martinez remained in Mexico was not tied to the words stating knowledge and purpose to evade service. Thus, the conviction entailed no actual or necessary finding about Mendoza-Martinez' citizenship status between September 27, 1944, and November 1, 1946, and the Government was not estopped from denying his citizenship in the present proceedings.
IV. THE CONSTITUTIONAL ISSUES.
22
A. Basic Principles.
23
Since the validity of an Act of Congress is involved, we begin our analysis mindful that the function we are now discharging is 'the gravest and most delicate duty that this Court is called upon to perform.' Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105, 107, 72 L.Ed. 206 (separate opinion of Holmes, J.). This responsibility we here fulfill with all respect for the powers of Congress, but with recognition of the transcendent status of our Constitution.
24
We deal with the contending constitutional arguments in the context of certain basic and sometimes conflicting principles. Citizenship is a most precious right. It is expressly guaranteed by the Fourteenth Amendment to the Constitution, which speaks in the most positive terms.10 The Constitution is silent about the permissibility of involuntary forfeiture of citizenship rights.11 While it confirms citizenship rights, plainly there are imperative obligations of citizenship, performance of which Congress in the exercise of its powers may constitutionally exact. One of the most important of these is to serve the country in time of war and national emergency. The powers of Congress to require military service for the common defense are broad and far-reaching,12 for while the Constitution protects against invasions of individual rights, it is not a suicide pact. Similarly, Congress has broad power under the Necessary and Proper Clause to enact legislation for the regulation of foreign affairs. Latitude in this area is necessary to ensure effectuation of this indispensable function of government.13
25
These principles, stemming on the one hand from the precious nature of the constitutionally guaranteed rights of citizenship, and on the other from the powers of Congress and the related obligations of individual citizens, are urged upon us by the parties here. The Government argues that §§ 401(j) and 349(a)(10) are valid as an exercise of Congress' power over foreign affairs, of its war power, and of the inherent sovereignty of the Government. Appellees urge the provisions' invalidity as not within any of the powers asserted, and as imposing a cruel and unusual punishment.
26
We recognize at the outset that we are confronted here with an issue of the utmost import. Deprivation of citizenship particularly American citizenship, which is 'one of the most valuable rights in the world today,' Report of the President's Commission on Immigration and Naturalization (1953), 235—has grave practical consequences. An expatriate who, like Cort, had no other nationality becomes a stateless person—a person who not only has no rights as an American citizen, but no membership in any national entity whatsoever. 'Such individuals as do not possess any nationality enjoy, in general, no protection whatever, and if they are aggrieved by a State they have no means of redress, since there is no State which is competent to take up their case. As far as the Law of Nations is concerned, there is, apart from restraints of morality or obligations expressly laid down by treaty * * * no restriction whatever to cause a State to abstain from maltreating to any extent such stateless individuals.' 1 Oppenheim, International Law (8th ed., Lauterpacht, 1955), § 291, at 640.14 The calamity is '(n)ot the loss of specific rights, then, but the loss of a community willing and able to guarantee any rights whatsoever * * *.' Arendt, The Origins of Totalitarianism (1951), 294. The stateless person may end up shunted from nation to nation, there being no one obligated or willing to receive him,15 or, as in Cort's case, may receive the dubious sanctuary of a Communist regime lacking the essential liberties precious to American citizenship.16
B. The Perez and Trop Cases.
27
The basic principles here involved, the gravity of the issue, and the arguments bearing upon Congress' power to forfeit citizenship were considered by the Court in relation to different provisions of the Nationality Act of 1940 in two cases decided on the same day less than five years ago: Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, and Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590.
28
In Perez, § 401(e), which imposes loss of nationality for '(v)oting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory,' was upheld by a closely divided Court as a constitutional exercise of Congress' power to regulate foreign affairs. The Court reasoned that since withdrawal of citizenship of Americans who vote in foreign elections is reasonably calculated to effect the avoidance of embarrassment in the conduct of foreign relations, such withdrawal is within the power of Congress, acting under the Necessary and Proper Clause. Since the Court sustained the application of § 401(e) to denationalize Perez, it did not have to deal with § 401(j), upon which the Government had also relied, and it expressly declined to rule on the constitutionality of that section, 356 U.S., at 62, 78 S.Ct., at 578. There were three opinions written in dissent. The principal one, that of The Chief Justice, recognized 'that citizenship may not only be voluntarily renounced through exercise of the right of expatriation but also by other actions in derogation of undivided allegiance to this country,' id., at 68, 78 S.Ct. at 581, but concluded that '(t)he mere act of voting in a foreign election, however, without regard to the circumstances attending the participation, is not sufficient to show a voluntary abandonment of citizenship,' id., at 78, 78 S.Ct., at 586.
29
In Trop, § 401(g), forfeiting the citizenship of any American who is guilty of '(d)eserting the military or naval forces of the United States in time of war, provided he is convicted thereof by court martial and as the result of such conviction is dismissed or dishonorably discharged * * *,' was declared unconstitutional. There was no opinion of the Court. The Chief Justice wrote an opinion for four members of the Court, concluding that § 401(g) was invalid for the same reason that he had urged as to § 401(e) in his dissent in Perez, and that it was also invalid as a cruel and unusual punishment imposed in violation of the Eighth Amendment. Justice Brennan conceded that it is 'paradoxical to justify as constitutional the expatriation of the citizen who has committed no crime by voting in a Mexican political election, yet find unconstitutional a statute which provides for the expatriation of a soldier guilty of the very serious crime of desertion in time of war,' 356 U.S., at 105, 78 S.Ct., at 600. Notwithstanding, he concurred because 'the requisite rational relation between this statute and the war power does not appear * * *,' id., at 114, 78 S.Ct., at 605. Justice Frankfurter, joined by three other Justices, dissented on the ground that § 401(g) did not impose punishment at all, let alone cruel and unusual punishment, and was within the war powers of Congress.
30
C. Sections 401(j) and 349(a)(10) as Punishment.
31
The present cases present for decision the constitutionality of a section not passed upon in either Perez or Trop—s 401(j), added in 1944, and its successor and present counterpart, § 349(a)(10) of the Immigration and Nationality Act of 1952. We have come to the conclusion that there is a basic question in the present cases, the answer to which obviates a choice here between the powers of Congress and the constitutional guarantee of citizenship. That issue is whether the statutes here, which automatically—without prior court or administrative proceedings—impose forfeiture of citizenship, are essentially penal in character, and consequently have deprived the appellees of their citizenship without due process of law and without according them the rights guaranteed by the Fifth and Sixth Amendments, including notice, confrontation, compulsory process for obtaining witnesses, trial by jury, and assistance of counsel. This issue was not relevant in Trop because, in contrast to §§ 401(j) and 349(a)(10), § 401(g) required conviction by court-martial for desertion before forfeiture of citizenship could be inflicted. In Perez the contention that § 401(e) was penal in character was impliedly rejected by the Court's holding, based on legislative history totally different from that underlying §§ 401(j) and 349(a)(10), that voting in a political election in a foreign state 'is regulable by Congress under its power to deal with foreign affairs.' 356 U.S., at 59, 78 S.Ct., at 576. Compare Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623; Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002; Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435. Indeed, in Trop The Chief Justice observed that 'Section 401(j) decrees loss of citizenship without providing any semblance of procedural due process whereby the guilt of the draft evader may be determined before the sanction is imposed * * *,' 356 U.S., at 94, 78 S.Ct., at 594, and Justice Frankfurter in dissent alluded to the due process overtones of the requirement in § 401(g) of prior conviction for desertion by court-martial, id., at 116—117, 78 S.Ct., at 606.
32
It is fundamental that the great powers of Congress to conduct war and to regulate the Nation's foreign relations are subject to the constitutional requirements of due process.17 The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action. 'The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.' Ex parte Milligan, 4 Wall, 2, 120—121, 18 L.Ed. 281.18 The rights guaranteed by the Fifth and Sixth Amendments are 'preserved to every one accused of crime who is not attached to the army, or navy, or militia in actual service.' Id., at 123.19 '(I)f society is disturbed by civil commotion—if the passions of men are aroused and the restraints of law weakened, if not disregarded—these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution.' Id., at 124.
33
We hold §§ 401(j) and 349(a)(10) invalid because in them Congress has plainly employed the sanction of deprivation of nationality as a punishment—for the offense of leaving or remaining outside the country to evade military service—without affording the procedural safeguards guaranteed by the Fifth and Sixth Amendments.20 Our forefathers 'intended to safeguard the people of this country from punishment without trial by duly constituted courts. * * * And even the courts to which this important function was entrusted, were commanded to stay their hands until and unless certain tested safeguards were observed. An accused in court must be tried by an impartial jury, has a right to be represented by counsel, (and) must be clearly informed of the charge against him * * *.' United States v. Lovett, 328 U.S. 303, 317, 66 S.Ct. 1073, 1080, 90 L.Ed. 1252. See also Chambers v. Florida, 309 U.S. 227, 235—238, 60 S.Ct. 472, 476—477, 84 L.Ed. 716.
34
As the Government concedes, §§ 401(j) and 349(a)(10) automatically strip an American of his citizenship, with concomitant deprivation 'of all that makes life worth living,' Ng Fung Ho v. White, 259 U.S. 276, 284—285, 42 S.Ct. 492, 495, 66 L.Ed. 938, whenever a citizen departs from or remains outside the jurisdiction of this country for the purpose of evading his military obligations. Conviction for draft evasion, as Cort's case illustrates, is not prerequisite to the operation of this sanction.21 Independently of prosecution, forfeiture of citizenship attaches when the statutory set of facts develops. It is argued that the availability after the fact of administrative and judicial proceedings, including the machinery the Court approved last Term in Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, to contest the validity of the sanction meets the measure of due process. But the legislative history and judicial expression with respect to every congressional enactment relating to the provisions in question dating back to 1865 establish that forfeiture of citizenship is a penalty for the act of leaving or staying outside the country to avoid the draft. This being so, the Fifth and Sixth Amendments mandate that this punishment cannot be imposed without a prior criminal trial and all its incidents, including indictment, notice, confrontation, jury trial, assistance of counsel, and compulsory process for obtaining witnesses. If the sanction these sections impose is punishment, and it plainly is, the procedural safeguards required as incidents of a criminal prosecution are lacking. We need go no further.
35
The punitive nature of the sanction here is evident under the tests traditionally applied to determine whether an Act of Congress is penal or regulatory in character, even though in other cases this problem has been extremely difficult and elusive of solution. Whether the sanction involves an affirmative disability or restraint,22 whether it has historically been regarded as a punishment,23 whether it comes into play only on a finding of scienter,24 whether its operation will promote the traditional aims of punishment—retribution and deterrence,25 whether the behavior to which it applies is already a crime,26 whether an alternative purpose to which it may rationally be connected is assignable for it,27 and whether it appears excessive in relation to the alternative purpose assigned28 are all relevant to the inquiry, and may often point in differing directions. Absent conclusive evidence of congressional intent as to the penal nature of a statute, these factors must be considered in relation to the statute on its face. Here, although we are convinced that application of these criteria to the face of the statutes supports the conclusion that they are punitive, a detailed examination along such lines is unnecessary, because the objective manifestations of congressional purpose indicate conclusively that the provisions in question can only be interpreted as punitive.29 A study of the history of the predecessor of § 401(j), which 'is worth a volume of logic,' New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963, coupled with a reading of Congress' reasons for enacting § 401(j), compels a conclusion that the statute's primary function is to serve as an additional penalty for a special category of draft evader.30 Compare Trop v. Dulles, supra, 356 U.S., at 107—110, 78 S.Ct., at 601—603 (Brennan, J., concurring).
36
1. The Predecessor Statute and Judicial Construction.
37
The subsections here in question have their origin in part of a Civil War 'Act to amend the several Acts heretofore passed to provide for the Enrolling and Calling out the National Forces, and for other Purposes.' Act of March 3, 1865, 13 Stat. 487. Section 21 of that Act, dealing with deserters and draft evaders, was in terms punitive, providing that 'in addition to the other lawful penalties of the crime of desertion,' persons guilty thereof 'shall be deemed and taken to have voluntarily relinquished and forfeited their rights of citizenship and their rights to become citizens * * * and all persons who, being duly enrolled, shall depart the jurisdiction of the district in which he is enrolled, or go beyond the limits of the United States, with intent to avoid any draft into the military or naval service, duly ordered, shall be liable to the penalties of this section.'31
38
The debates in Congress in 1865 confirm that the use of punitive language in § 21 was not accidental. The section as originally proposed inflicted loss of rights of citizenship only on deserters. Senator Morrill of Maine proposed amending the section to cover persons who leave the country to avoid the draft, stating, 'I do not see why the same principle should not extend to those who leave the country to avoid the draft.' Cong.Globe, 38th Cong., 2d Sess. 642 (1865). This 'same principle' was punitive, because Senator Morrill was also worried that insofar as the section as originally proposed 'provides for a penalty' to be imposed on persons who had theretofore deserted, there was question 'whether it is not an ex post facto law, whether it is not fixing a penalty for an act already done.' Ibid. Senator Johnson of Maryland attempted to allay Senator Morrill's concern by explaining that
39
'the penalties are not imposed upon those who have deserted, if nothing else occurs, but only on those who have deserted and who shall not return within sixty days. The crime for which the punishment is inflicted is made up of the fact of an antecedent desertion, and a failure to return within sixty days. It is clearly within the power of Congress.' Ibid.
40
This explanation satisfied the Senate sufficiently so that they accepted the section, with Senator Morrill's amendment, although Senator Hendricks of Indiana made one last speech in an effort to convince his colleagues of the bill's ex post facto nature and, even apart from that, of the excessiveness of the punishment, particularly as applied to draft evaders:
41
'It seems to me to be very clear that this section proposes to punish desertions which have already taken place, with a penalty which the law does not already prescribe. In other words it is an ex post facto criminal law which I think we cannot pass. * * * One of the penalties known very well to the criminal laws of the country is the denial of the right of suffrage and the right to hold offices of trust or profit.
42
'It seems to me this objection to the section is very clear, but I desire to suggest further that this section punishes desertions that may hereafter take place in the same manner, and it is known to Senators that one desertion recently created is not reporting when notified of the draft. * * * I submit to Senators that it is a horrible thing to deprive a man of his citizenship, of that which is his pride and honor, from the mere fact that he has been unable to report upon the day specified after being notified that he has been drafted. Certainly the punishment for desertion is severe enough. It extends now from the denial of pay up to death; that entire compass is given for the punishment of this offense. Why add this other? It cannot do any good.' Id., at 643.
43
In the House, the motion of New York's Representative Townsend to strike the section as a 'despotic measure' which would 'have the effect to deprive fifty thousand, and I do not know but one hundred thousand, people of their rights and privileges,' was met by the argument of Representative Schenck of Ohio, the Chairman of the Military Committee, that 'Here is a penalty that is lawful, wise, proper, and that should be added to the other lawful penalties that now exist against deserters.' Id., at 1155. After Representative Wilson of Iowa proposed an amendment, later accepted and placed in the enacted version of the bill, extending the draft-evasion portion to apply to persons leaving 'the district in which they are enrolled' in addition to those leaving the country, Representative J. C. Allen of Illinois raised the ex post facto objection to the section as a whole. Id., at 1155—1156. Representative Schenck answered him much as Senator Johnson had replied in the Senate:
44
'The gentleman from Illinois (Mr. J. C. Allen) misapprehends this section from not having looked carefully, as I think, into its language. He thinks it retroactive. It is not so. It does not provide for punishing those who have deserted in their character of deserters acquired by having gone before the passage of the law, but of those only, who, being deserters, shall not return and report themselves for duty within sixty days. If the gentleman looks at the language of the section, he will find that we have carefully avoided making it retroactive. We give those who have deserted their country and their flag sixty days for repentance and return.
45
'Mr. J. C. ALLEN. Will not the infliction of this penalty on those who have failed to return to the Army be an additional penalty that did not exist at the time they deserted?
46
'Mr. SCHENCK. Yes, sir.
47
'Mr. J. C. ALLEN. Does not that make the law retroactive?
48
'Mr. SCHENCK. They are deserters now. We take them up in their present status and character as deserters, and punish them for continuing in that character. The gentleman refers to lawyers here. I believe he is a good lawyer himself. Does he not know that if a man steals a horse and runs away with it to the next county it is a continual act of larceny until he delivers up the horse?' Id., at 1156.
49
The significance of these debates is, as these excerpts plainly show, that while there was a difference in both Houses as to whether the statute would be an ex post facto law, there was agreement among all the speakers on both sides of that issue, as well as on both sides of the merits of the bill generally, that deprivation of rights of citizenship for leaving the country to evade the draft was a 'penalty' and 'punishment' for a 'crime' and an 'offense' and a violation of a 'criminal law.'
50
A number of state court judicial decisions rendered shortly after the Civil War lend impressive support to the conclusion that the predecessor of §§ 401(j) and 349(a)(10), § 21 of the 1865 statute, was a criminal statute imposing an additional punishment for desertion and draft evasion. The first and most important of these was Huber v. Reily, 53 Pa. 112 (1866), in which, as in most of the cases which followed,32 the plaintiff had brought an action against the election judge of his home township, alleging that the defendant had refused to receive his ballot on the ground that plaintiff was a deserter and thereby disenfranchised under § 21, and that such refusal was wrongful because § 21 was unconstitutional. The asserted grounds of invalidity were that § 21 was an expost facto law, that it was an attempt by Congress to regulate suffrage in the States and therefore outside Congress' sphere of power, and that it proposed to inflict pains and penalties without a trial and conviction, and was therefore prohibited by the Bill of Rights. In an opinion by Justice Strong, later a member of this Court, the Pennsylvania Supreme Court first characterized the statute in a way which compelled discussion of the asserted grounds of unconstitutionality:
51
'The Act of Congress is highly penal. It imposes forfeiture of citizenship and deprivation of the rights of citizenship as penalties for the commission of a crime. Its avowed purpose is to add to the penalties which the law had previously affixed to the offense of desertion from the military or naval service of the United States, and it denominates the additional sanctions provided as penalties.' 53 Pa., at 114—115.
52
It then answered the ex post facto argument as it had been answered on the floor of Congress, that the offense could as well be in the continued refusal to render service as in the original desertion. The second contention was met with the statement that 'The enactment operates upon an individual offender, punishes him for violation of the Federal law by deprivation of his citizenship of the United States, but it leaves each state to determine for itself whether such an individual may be a voter. It does no more than increase the penalties of the law upon the commission of crime.' Id., at 116. 'The third objection,' the court continued, 'would be a very grave one if the act does in reality impose pains and penalties before and without a conviction by due process of law.' Id., at 116—117. The court then summarized the protections guaranteed by the Fifth and Sixth Amendments, and concluded that it was not consistent with these rights to empower a 'judge of elections or a board of election officers constituted under state laws * * * to adjudge the guilt or innocence of an alleged violator of the laws of the United States.' Id., at 117. However, the court decided that since the penalty contemplated by § 21 'is added to what the law had previously enacted to be the penalty of desertion, as imprisonment is sometimes added to punishment by fine,' it must have been intended 'that it should be incurred in the same way, and imposed by the same tribunal that was authorized to impose the other penalties for the offence.' Id., at 119. '(T)he forfeiture which it prescribes, like all other penalties for desertion, must be adjudged to the convicted person, after trial by a court-martial, and sentence approved. For the conviction and sentence of such a court there can be no substitute.' Id., at 120. (Emphasis in original.) Accordingly, since the plaintiff had not been so convicted, the court held that he was not disenfranchised.
53
Subsequent state court decisions in the post-Civil War period followed Huber v. Reily, both in result and reasoning. State v. Symonds, 57 Me. 148 (1869); Severance v. Healey, 50 N.H. 448 (1870); Gotcheus v. Matheson, 58 Barb.(N.Y.) 152 (1870); McCafferty v. Guyer, 59 Pa. 109 (1868).
54
Ultimately and significantly, in Kurtz v. Moffitt, 115 U.S. 487, 6 S.Ct. 148, 29 L.Ed. 458, a case dealing with the question whether a city police officer had the power to arrest a military deserter, this Court recognized both the nature of the sanction imposed by § 21 and the attendant necessity of procedural safeguards, approvingly citing the above decisions:
55
'The provisions of §§ 1996 and 1998, which re-enact the act of March 3, 1865, ch. 79, § 21, 13 Stat. 490, and subject every person deserting the military service of the United States to additional penalties, namely, forfeiture of all rights of citizenship, and disqualification to hold any office of trust or profit, can only take effect upon conviction by a court martial, as was clearly shown by Mr. Justice Strong, when a judge of the Supreme Court of Pennsylvania, in Huber v. Reily, 53 Penn.St. 112, and has been uniformly held by the civil courts as well as by the military authorities. State v. Symonds, 57 Maine, 148; Severance v. Healey, 50 N.H. 448; Goetcheus v. Matthewson, 61 N.Y. 420; Winthrop's Digest of Judge Advocate General's Opinions, 225.' 115 U.S., at 501—502, 6 S.Ct., at 153.
56
Section 21 remained on the books unchanged, except for being distributed in the Revised Statutes as §§ 1996 and 1998, until 1912, when Congress reenacted it with an amendment making it inapplicable to peacetime violations and giving the President power to mitigate or remit punishment previously imposed on peacetime violators, Act of August 22, 1912, 37 Stat. 356. The legislative history of that amendment is also instructive for our present inquiry. The discussion in both Houses had reference only to the penalties as operative on deserters, no doubt because there was no peacetime draft to evade, but since the 1865 statute dealt without distinction with both desertion and leaving the jurisdiction to evade, there is no reason to suppose the discussion quoted below to be any less applicable to the latter type of misconduct. The House Committee Report, H.R.Rep.No.335, 62d Cong., 2d Sess. (1912), which was quoted in its entirety in the Senate Committee Report, S.Rep.No.910, 62d Cong., 2d Sess. 3—6 (1912), stated that 'In addition to the service penalty imposed by the court-martial, the law, as it now stands, imposes the further and most drastic punishment of loss of rights of citizenship * * *. There are in the United States to-day thousands of men who are literally men without a country and their numbers will be constantly added to until the drastic civil-war measure which adds this heavy penalty to an already severe punishment imposed by military law, is repealed.' H.R.Rep.No.335, supra, at 2. In reporting the bill out of the Committee on Naval Affairs, Representative Roberts of Massachusetts, its author, stated that 'the bill now under consideration is intended to remove one of the harshest penalties that can be imposed upon a man for an offense, to wit, the loss of rights to citizenship. * * * (S)uch a drastic penalty was entirely too severe to be imposed upon an American citizen in time of peace.' He detailed the penalties meted out by court-martial for desertion, and then referred to the 'additional penalty of loss of citizenship,' which, he concluded, is 'a barbarous punishment.' 48 Cong.Rec. 2903 (1912). Senator Bristow of Kansas, a member of his chamber's Committee on Military Affairs, also referred in discussing the bill to the forfeiture of rights of citizenship as a 'penalty,' and said that there is no reason why a peacetime offender should be 'punished so severely.' 48 Cong.Rec. 9542 (1912).
57
A somewhat similar amendment had been passed by both Houses of Congress in 1908 but vetoed by the President.33 The House Committee Report on that occasion, H.R.Rep.No.1340, 60th Cong., 1st Sess. (1908), consisted mainly of a letter from the Secretary of the Navy to the Congress, and of his annual report. In both documents he referred to loss of citizenship as a 'punishment,' and as one of the 'penalties' for desertion. Representative Roberts spoke in 1908, as he was to do once more in 1912, of the 'enormity of the punishment' and the 'horrible punishment,' and said, 'Conviction itself under the existing law forfeits citizenship. That is the monstrosity of the law.' 43 Cong.Rec. 111 (1908). The entire discussion, id., at 110—114, was based on the premise that loss of citizenship is a punishment for desertion, the point at issue as in 1912, being whether it was too severe a punishment for peacetime imposition. At one point Representative Roberts said, 'Loss of citizenship is a punishment,' to which Representative Hull of Iowa replied, 'Certainly.' Id., at 114.
58
Section 504 of the Nationality Act of 1940, 54 Stat. 1172, repealed the portion of the 1865 statute which dealt with flight from the jurisdiction to avoid the draft. However, in connection with the provision governing loss of citizenship for desertion, which was enacted as § 401(g) and declared unconstitutional in Trop v. Dulles, supra, the President's committee of advisers reported that the provisions of the 1865 Act had been 'distinctly penal in character,' and concluded that 'They must, therefore, be construed strictly, and the penalties take effect only upon conviction by a court martial.'34 Codification of the Nationality Laws of the United States, 76th Cong., 1st Sess. 68 (Comm.Print 1939). Section 401(g) was therefore worded so that loss of nationality could only occur upon conviction for desertion by court-martial. When, however, § 401(j) was enacted in 1944, no such procedural safeguards were built in. See Trop v. Dulles, supra, 356 U.S. at 93—94, 78 S.Ct., at 594. Thus, whereas for Justice Brennan concurring in Trop the conclusion that expatriation under § 401(g) was punishment was 'but the beginning of critical inquiry,' 356 U.S., at 110, 78 S.Ct., at 603, a similar conclusion with reference to §§ 401(j) and 349(a)(10) is sufficient to sustain the holding that they are unconstitutional.
2. The Present Statutes.
59
The immediate legislative history of § 401(j) confirms the conclusion, based upon study of the earlier legislative and judicial history,35 that it is punitive in nature. The language of the section was, to begin with, quite obviously patterned on that of its predecssor, an understandable fact since the draft of the bill was submitted to the Congress by Attorney General Biddle along with a letter to Chairman Russell of the Senate Immigration Committee, in which the Attorney General referred for precedent to the 1912 reenactment of the 1865 statute. This letter, which was the impetus for the enactment of the bill, was quoted in full text in support of it in both the House and Senate Committee Reports, H.R.Rep. No. 1229, 78th Cong., 2d Sess. 2—3 (1944); S.Rep. No. 1075, 78th Cong., 2d Sess. 2 (1944), and is set out in the margin.36 The Senate Report stated that it 'fully explains the purpose of the bill.' S.Rep. No. 1075, supra, at 1. The letter was couched entirely in terms of an argument that citizens who had left the country in order to escape military service should be dealt with, and that loss of citizenship was a proper way to deal with them. There was no reference to the societal good that would be wrought by the legislation, nor to any improvement in soldier morale or in the conduct of war generally that would be gained by the passage of the statute. The House Committee Report and the sponsors of the bill endorsed it on the same basis. The report referred for support to the fact that the FBI files showed 'over 800 draft delinquents' in the El Paso area alone who had crossed to Mexico to evade the draft. H.R.Rep. No. 1229, supra, at 2. The obvious inference to be drawn from the report, the example it contained, and the lack of mention of any broader purpose is that Congress was concerned solely with inflicting effective retribution upon this class of draft evaders and, no doubt, on others similarly situated. Thus, on the floor of the House, Representative Dickstein of New York, the Chairman of the House Committee on Immigration and Naturalization, explained the bill solely as a means of dealing with 'draft dodgers who left this country knowing that there was a possibility that they might be drafted in this war and that they might have to serve in the armed forces * * *.' He implied that the bill was necessary to frustrate their 'idea of evading military service and of returning after the war is over, and taking their old places in our society.' 90 Cong.Rec. 3261 (1944). Senator Russell, who was manager of the bill as well as Chairman of the Senate Immigration Committee, explained it in similar terms:
60
'Certainly those who, having enjoyed the advantages of living in the United States, were unwilling to serve their country or subject themselves to the Selective Service Act, should be penalized in some measure. * * * Any American citizen who is convicted of violating the Selective Service Act loses his citizenship. This bill would merely impose a similar penalty on those who are not subject to the jurisdiction of our courts, the penalty being the same as would result in the case of those who are subject to the jurisdiction of our courts.' 90 Cong.Rec. 7629 (1944).37
61
The Senate and House debates, together with Attorney General Biddle's letter, brought to light no alternative purpose to differentiate the new statute from its predecessor. Indeed, as indicated, the Attorney General's letter specifically relied on the predecessor statute as precedent for this enactment, and both the letter and the debates, consistent with the character of the predecessor statute, referred to reasons for the enactment of the bill which were fundamentally retributive in nature. When all of these considerations are weighed, as they must be, in the context of the incontestibly punitive nature of the predecessor statute, the conclusion that § 401(j) was itself dominantly punitive becomes inescapable. The legislative history of § 349(a)(10) of the Immigration and Nationality Act of 1952, which re-enacted § 401(j), adds nothing to disturb that result.38 Our conclusion from the legislative and judicial history is, therefore, that Congress in these sections decreed an additional punishment for the crime of draft avoidance in the special category of cases wherein the evader leaves the country. It cannot do this without providing the safeguards which must attend a criminal prosecution.39
62
V. CONCLUSION.
63
It is argued that our holding today will have the unfortunate result of immunizing the draft evader who has left the United States from having to suffer any sanction against his conduct, since he must return to this country before he can be apprehended and tried for his crime. The compelling answer to this is that the Bill of Rights which we guard so jealously and the procedures it guarantees are not to be abrogated merely because a guilty man may escape prosecution or for any other expedient reason. Moreover, the truth is that even without being expatriated, the evader living abroad is not in a position to assert the vast majority of his component rights as an American citizen. If he wishes to assert those rights in any real sense he must return to this country, and by doing that he will subject himself to prosecution. In fact, while he is outside the country evading prosecution, the United States may, by proper refusal to exercise its largely discretionary power to afford him diplomatic protection,40 decline to invoke its sovereign power on his behalf. Since the substantial benefits of American citizenship only come into play upon return to face prosecution, the draft evader who wishes to exercise his citizenship rights will inevitably come home and pay his debt, which within constitutional limits Congress has the power to define. This is what Mendoza-Martinez did, what Cort says he is willing to do, and what others have done.41 Thus our holding today does not frustrate the effective handling of the problem of draft evaders who leave the United States.42
64
We conclude, for the reasons stated, that §§ 401(j) and 349(a)(10) are punitive and as such cannot constitutionally stand, lacking as they do the procedural safeguards which the Constitution commands.43 We recognize that draft evasion, particularly in time of war, is a heinous offense, and should and can be properly punished. Dating back to Magna Carta, however, it has been an abiding principle governing the lives of civilized men that 'no freeman shall be taken or imprisoned or disseised or outlawed or exiled * * * without the judgment of his peers or by the law of the land * * *.'44 What we hold is only that, in keeping with this cherished tradition, punishment cannot be imposed 'without due process of law.' Any lesser holding would ignore the constitutional mandate upon which our essential liberties depend. Therefore the judgments of the District Courts in these cases are affirmed.
65
Affirmed.
66
Mr. Justice DOUGLAS and Mr. Justice BLACK, while joining the opinion of the Court, adhere to the views expressed in the dissent of Mr. Justice DOUGLAS, in which Mr. Justice BLACK joined, in Perez v. Brownell, 356 U.S. 44, 79, 78 S.Ct. 568, 586, that Congress has no power to deprive a person of the citizenship granted the native-born by § 1, cl. 1, of the Fourteenth Amendment.
67
Mr. Justice BRENNAN, concurring.
68
I join the Court's opinion because I fully agree with the Court's conclusion that Congress has here attempted to employ expatriation as a penal sanction in respect of behavior deemed inimical to an objective whose pursuit is within its assigned powers, and with the reasoning by which that conclusion is reached. So too, I agree that Congress is constitutionally debarred from so employing the drastic, the truly terrifying remedy of expatriation, certainly where no attempt has been made to apply the full panoply of protective safeguards which the Constitution requires as a condition of imposing penal sanctions. However, I deem it appropriate to elaborate somewhat the considerations which impel me to agree with the Court.
69
This Court has never granted the existence in Congress of the power to expatriate except where its exercise was intrinsically and peculiarly appropriate to the solution of serious problems inevitably implicating nationality. We have recognized the entanglements which may stem from dual allegiance, and have twice sustained statutes which provided for loss of American citizenship upon the deliberate assumption of a foreign attachment. Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297; Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287. We have recognized that participation by American nationals in the internal politics of foreign states could dangerously prejudice our diplomacy, and have allowed the use of expatriation as a uniquely potent corrective which precludes recriminations by disowning, at the moment of his provocative act, him who might otherwise be taken as our spokesman or our operative. Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603. The instant cases do not require me to resolve some felt doubts of the correctness of Perez, which I joined. For the Court has never held that expatriation was to be found in Congress' arsenal of common sanctions, available for no higher purpose than to curb undesirable conduct, to exact retribution for it, and to stigmatize it.
I.
70
In Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 596, we had before us § 401(g) of the Nationality Act of 1940, which imposed loss of American nationality following conviction of deserting the armed forces in time of war. We held that statute unconstitutional. Three of my Brethren joined in the opinion of The Chief Justice, who analyzed the case in terms equally applicable to the cases at bar. That plurality opinion in Trop noted that the congressional power to which expatriation under § 401(g) was said to be relevant was the 'war power.' It concluded that expatriation under § 401(g) could have no value in furtherance of the war power except as a sanction, to deter or punish desertion; that expatriation so employed was 'punishment' within the meaning of the Eighth Amendment; and that such punishment was unconstitutional because cruel and unusual.1
71
My concurring views in Trop, separately expressed, were akin to those of the plurality. I shared the view that expatriation could have been employed in § 401(g) only as a sanction, and I considered this an insufficient predicate for its use—which I believed allowable only where some affirmative and unique relationship to policy was apparent. My premise was the simple and fundamental one that legislation so profoundly destructive of individual rights must keep within the limits of palpable reason and rest upon some modicum of discoverable necessity. I was unable to conclude that § 401(g) met that elementary test. It was evident that recognizable achievement of legitimate congressional purposes through the expatriation device was at best remote; and that far more promising alternative methods existed and had, in fact, been employed.
72
My Brother STEWART attempts to distinguish Trop along two fronts: He argues that expatriation is not here employed as 'punishment' in the constitutional sense so that the reasoning of the Trop plurality has no application; and he argues that, the question of punishment aside, expatriation as here employed is a uniquely necessary device not falling within the rationale of my views separately expressed in Trop.
73
My Brother STEWART discerns in § 401(j)2 an affirmative instrument of policy and not simply a sanction which must be classed as 'punishment.' The policy objective is thought to be the maintenance of troop morale; a threat to that objective is thought to be the spectacle of persons escaping a military-service obligation by flight; and expatriation of such persons is sustained as a demonstrative counter to that threat. To my mind that would be 'punishment' in the purest sense; it would be naked vengeance. Such an exaction of retribution would not lose that quality because it was undertaken to maintain morale. Indeed, it is only the significance of expatriation as retribution which could render it effective to boost morale—the purpose which, to the dissent, removes expatriation as here used from the realm of the punitive. I do not perceive how expatriation so employed would differ analytically from the stocks or the rack. Because such devices may be calculated to shore up the convictions of the law-abiding by demonstrating that the wicked will not go unscathed, they would not, by the dissent's view, be punitive or, presumably, reachable by the Eighth Amendment.3 I cannot agree to any such proposition, and I see no escape from the conclusion that § 401(j), before us today, is identical in purpose to § 401(g) and is quite as 'punitive' as was that statute, which we condemned in Trop.
74
The dissent finds other distinctions between this case and Trop, quite apart from its untenable position that § 401(j) is not punitive. It is said that flight from the country to escape the draft, in contrast with desertion, could never be a mere technical offense equivocal in its implications for the loyalty of the offender. But the unshakable fear of physical stress or harm, the intellectual or moral aversion to combat, and the mental aberation which may result in flight are no more inconsistent with underlying loyalty than was Trop's unauthorized abandonment of his post.4 Again, it is suggested that the element of cumulation of punishments which helped expose the futility of expatriation in Trop is missing here, because § 401(j), unlike § 401(g), becomes operative without a prior conviction, and applies only in the case of flight beyond our borders. But the Mendoza-Martinez case, in its collateral estoppel issue, prominently displays what would in any case be obvious—that expatriation under § 401(j) is cumulative with criminal sanctions for draft evasion, for those sanctions apply to fugitives equally as much as to sedentary violators.5
75
Nor can Trop rationally be distinguished on the ground that the application of § 401(j) only the fugitives proves that it was designed to fill a void necessarily left by the ordinary criminal draft-evasion sanctions. The point, as I understand it, is that the ordinary sanctions cannot be brought to bear against a fugitive who declines to come home; but he can be expatriated while he remains abroad, without having to be brought before a tribunal and formally proceeded against. The special virtue of expatriation, it appears, is that it may be accomplished in absentia.
76
Aside from the denial of procedural due process, which the Court rightly finds in the scheme, the surface appeal of the argument vanishes upon closer scrutiny.
77
It simply is not true that expatriation provides an instrumentality specially necessary for imposing the congressional will upon fugitive draft evaders. Our statutes now provide severe criminal sanctions for the behavior in question. The fugitive can return only at the cost of suffering these punishments; the only way to avoid them is to remain away. As to any draft delinquent for whom the prospect of this dilemma would not itself pose a recognizable, formidable deterrent, I fail to see how the addition of expatriation could enhance the effect at all.6 Nor can expatriation affect the fugitive who will not return to be punished—for whom it is thought to be specially designed. For that individual has, ex hypothesi, determined on his own to stay away and so cannot be affected by the withdrawal of his right to return. The sting of the measure is felt only by those like Mendoza-Martinez, who have already returned and been punished, and those like Cort, who desire to return and be punished—those, in other words, as to whom expatriation is patently cumulative with other sanctions. As to the unregenerate fugitive whom it is particularly thought to reach, expatriation is but a display of congressional displeasure. I cannot agree that it is within the power of Congress so to express its displeasure with those who will not return as to destroy the rights and the status of those who have demonstrated their underlying attachment to this country by coming home.
78
It is apparent, then, that today's cases are governed by Trop no matter which of the two controlling opinions is consulted. Expatriation is here employed as 'punishment,' cruel and unusual here if it was there. Nor has expatriation as employed in these cases any more rational or necessary a connection with the war power than it had in Trop.
II.
79
Mr. Justice STEWART'S dissent would sustain § 401(j) as a permissible exercise of the 'war power.' The appellants in these cases, on the other hand, place their main reliance on the 'foreign affairs power.' The dissent summarizes the appellants' arguments under this heading but does not purport to pass on them. Because of my conviction that § 401(j) is unconstitutional no matter what congressional power is invoked in its support, I find it necessary to deal with the foreign affairs arguments advanced by the appellants.
80
Initially, I note that the legislative history as expounded by the dissent fails to reveal that Congress was mindful of any foreign affairs problem to be corrected by the statute. The primary purpose seems to me to have been retributive, the secondary purpose deterrent; and even the morale-boosting purpose discerned by the dissent has nothing to do with foreign affairs. While the obvious fact that Congress was not consciously pursuing any foreign affairs objective may not necessarily preclude reliance on that power as a ground of constitutionality, it does render such reliance initially questionable.
81
Proceeding to the appellants' arguments, one encounters first the suggestion that a fugitive draft evade 'can easily cause international complications' while he remains an American citizen, because the United States cannot exercise control over him while he is on foreign soil.
82
Such a 'problem,' obviously, exists equally with respect to any fugitive from American justice, and cannot be thought confined to draft evaders. Yet it is only fugitive draft evaders who are expatriated. It is, therefore, impossible to agree that Congress was acting on any such inherently unlikely premise as that expatriation was necessary so as to avoid responsibility for those described by § 401(j).
83
But, contend the appellants, § 401(j) is designed to prevent embroilments as well as embarrassments. During wartime, it is argued, our Government would very likely feel impelled to demand of foreign havens the return of our fugitive draft evaders; and such a demand might seriously offend a 'host' country, leading to embroilment. The transparent weakness of this argument—its manifest inconsistency—must be immediately apparent. Surely the United States need not disable itself from making injudicious demands in order to restrain itself from doing so. The argument rests on the possibility that there may be an urgent need to secure a fugitive's return. If that is so, a demand must be made with its attendant risk of embroilment. If expatriating the fugitive makes a demand impossible, it able forever defeats the objective—his return—which would have impelled the demand in the first place. If recapturing fugitives may ever be urgently necessary, it is obvious that automatic expatriation could only be directly opposed to our interest—which requires that the Government be free to choose whether or not to make the demand, in light of all the attendant circumstances.
84
The appellants have still another argument. It is that whereas the Government is under an obligation to seek the return of the fugitive as long as he remains a citizen, by terminating citizenship 'Congress has eliminated at the outset any further claim that this country would have to the services of these individuals, and has removed all basis for further demands upon them * * *.' This simply is not so. Expatriation may have no effect on a continuing military-service obligation.7 And it is incontrovertible that the power to punish the initial draft-evasion offense continues although citizenship has meanwhile become forfeit. The Government has so argued in addressing itself to the collateral estoppel issue in Mendoza-Martinez. I cannot understand how any obligation to apprehend can be other than coextensive with the power to punish. The Government cannot have it both ways in the same case.
III.
85
The appellants urge that, wholly apart from any explicit congressional power, § 401(j) may be sustained as an exercise of a power inherent in United States sovereignty. My Brethren who would uphold the statute have not adverted to this possibility except, as I shall point out, as they have adopted in passing certain related arguments.
86
Preliminarily, it is difficult to see what is resolved by the assertion that sovereignty implies a power to expatriate. That proposition may be admitted and yet have no bearing on the problem facing the Court.
87
For, under our Constitution, only a delimited portion of sovereignty has been assigned to the Government of which Congress is the legislative arm. To say that there inheres in United States sovereignty the power to sever the tie of citizenship does not answer the inquiry into whether that power has been granted to Congress. Any argument that it has been so delegated which eschews reference to the constitutional text must, it appears, make its appeal to some sense of the inevitable fitness of things. The contentions here fall far short of any such standard.
88
It is too simple to suggest that it is fitting that Congress be empowered to extinguish the citizenship of one who refuses to perform the 'ultimate duty' of rising to the Government's defense in time of crisis. I pause to note that for this Court to lend any credence whatever to such a criterion—as the dissent would, see pp. 214—215, is fraught with the most far-reaching consequences. For if Congress now should declare that a refusal to pay taxes, to do jury duty, to testify, to vote, is no less an abnegation of ultimate duty—or an implied renunciation of allegiance—than a refusal to perform military service, I am unable to perceive how this Court, on the dissent's view, could presume to gainsay such a judgment. But the argument is not saved even by a willingness to accept these consequences. There really is no way to distinguish between the several failures of a citizen's duty I have just enumerated, or to explain why evasion of military service should be visited with this specially harsh consequence, except to recognize that the latter defection is palpably more provocative than the others. But, as I have argued in another context, when conduct is singled out of a class for specially adverse treatment simply because it is specially provocative, there is no escaping the conclusion that punishment is being administered. See Flemming v. Nestor, 363 U.S. 603, 635—640, 80 S.Ct. 1367, 1388, 4 L.Ed.2d 1435 (dissenting opinion). Pursuit of the 'ultimate duty' concept, then, simply reaffirms my conviction that this case is indistinguishable from Trop.
89
The appellants, however, argue that it is fitting that Congress be empowered to extinguish the citizenship of one who not only refuses to perform his duty, but who also 'repudiates his wider obligation as a citizen to submit to this country's jurisdiction and authority' by fleeing the country in order to escape that duty. It is, once again, difficult to see how this flight-repudiation theory can be confined to draft evasion. Every fugitive from United States justice repudiates American authority over him in equal measure. If the difference lies in the quality of the act of draft evasion, then we are back once again to punishment.
90
The appellants assert that '(a) government which cannot exert force to compel a citizen to perform his Lawful (Government's emphasis) duty is, to that extent, not sovereign as to him.' The apparent corollary is that congressionally imposed expatriation is, under such circumstances, in effect declaratory of a change in status which has already occurred. But the Government is far from conceding its lack of authority over a fugitive draft evader. It informs us that 'the federal government has the power to order our citizens abroad to return, for any lawful purpose,' citing Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375. And, in any event, the argument proves far too much, for it would justify expatriation of any American abroad for any reason who would, equally with persons covered by § 401(j), be outside our Government's power to compel the performance of duty.
91
Mr. Justice HARLAN, whom Mr. Justice CLARK joins, dissenting.
92
I agree with and join in Parts I, II, III, and IV of my Brother STEWART'S opinion, leading to the conclusion that § 401(j) of the Nationality Act of 1940, applicable in No. 2 (Mendoza), is constitutional. I also agree with his conclusion that for the same reasons, the substantive provisions of § 349(a) (10) of the 1952 Act, applicable in No. 3 (Cort), are constitutional. I disagree, however, with his view that the evidentiary presumption contained in § 349(a)(10) is unconstitutional. I am content to state my reasons in summary form.
93
1. As I read the opinion below in the Cort case I do not think the District Court relied on the § 349(a)(10) presumption.1 This view is fortified by several considerations: (i) the constitutionality of the presumption was attacked in Cort's complaint and was briefed by both sides in the District Court; (ii) the text of the presumption itself was set forth in the opinion of the District Court (187 F.Supp., at 684) at only a page or two before the extract quoted in the margin (note 1); and (iii) in these circumstances it is difficult to believe that the lower court, composed of three experienced judges, either inadvertently ignored the presumption or upheld its validity sub silentio. The more likely conclusion is that finding the evidence sufficient without the aid of the presumption, the lower court saw no need for reaching a second constitutional issue.
94
So viewing that District Court's opinion, I think the evidence was quite sufficient under the 'clear, unequivocal, and convincing' standard of Schneiderman v. United States, 320 U.S. 118, 135, 63 S.Ct. 1333, 1341, 87 L.Ed. 1796, to support the finding below that Cort had remained abroad for the purpose of evading military service.2
95
2. In addition, I see nothing constitutionally wrong with this presumption either on its face or as related to this case. Similar presumptions have been consistently sustained in criminal statutes, where the standard of proof is certainly no less stringent than in denationalization cases. See, e.g., Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904; Casey v. United States, 276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632; Hawes v. Georgia, 258 U.S. 1, 42 S.Ct. 204, 66 L.Ed. 431; cf. Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905. As regards the requirement that there must be a 'rational connection between the fact proved and the ultimate fact presumed,' Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519, this presumption is surely a far cry from that held constitutionally invalid in the Tot case.3 And since we are concerned here only with the presumption as applied in this instance (if indeed it was in fact applied below or must now be resorted to in this Court), it is no answer to suggest that in other instances application of the presumption might be unconstitutional.
96
Thus whether or not the § 349(a)(10) presumption is involved in the Cort case, I believe that the order of denationalization there, as well as in the Mendoza case, should be upheld.4
97
Mr. Justice STEWART, with whom Mr. Justice WHITE joins, dissenting.
98
The Court's opinion is lengthy, but its thesis is simple: (1) The withdrawal of citizenship which these statutes provide is 'punishment.' (2) Punishment cannot constitutionally be imposed except after a criminal trial and conviction. (3) The statutes are therefore unconstitutional. As with all syllogisms, the conclusion is inescapable if the premises are correct. But I cannot agree with the Court's major premise—that the divestiture of citizenship which these statutes prescribe is punishment in the constitutional sense of that term.1
I.
99
Despite the broad sweep of some of the language of its opinion, the Court as I understand it does not hold that involuntary deprivation of citizenship is inherently and always a penal sanction—requiring the safeguards of a criminal trial. Such a determination would overrule at least three decisive precedents in this Court.
100
Nearly 50 years ago the Court held that Congress had constitutional power to denationalize a native-born citizen who married a foreigner but continued to reside here. Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297. The Court there explicitly rejected the argument 'that the citizenship of plaintiff was an incident to her birth in the United States, and, under the Constitution and laws of the United States, it became a right, privilege, and immunity which could not be taken away from her except as a punishment for crime or by her voluntary expatriation.' 239 U.S., at 308, 36 S.Ct., at 107. The power of Congress to denationalize a native-born citizen, without a criminal trial, was reaffirmed in Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287. And less than five years ago, in Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603, the Court again upheld this congressional power in an opinion which unambiguously rejected the notion, advanced in that case by the dissenters,2 that the Mackenzie and Savorgnan decisions stand only for the proposition that citizenship may be voluntarily relinquished or abandoned either expressly or by conduct. In short, it has been established for almost 50 years that Congress under some circumstances may, without providing for a criminal trial, make expatriation the consequence of the voluntary conduct of a United States citizen, irrespective of the citizen's subjective intention to renounce his nationality, and irrespective too of his awareness that denationalization will be the result of his conduct.3
II.
101
The position taken by the Court today is simply that, unlike the statutes involved in Mackenzie, Savorgnan and Perez, the statutes at issue in the present case employ deprivation of citizenship as a penal sanction. In support of this position, the Court devotes many pages of its opinion to a discussion of a quite different law, enacted in 1865, amended in 1912, and repealed in 1940. That law4 provided for forfeiture of the 'rights of citizenship' as an additional penalty for deserters from the armed forces and for enrolled draftees who departed from their district or from the United States 'to avoid any draft into the military or naval service, duly ordered * * *.' That statute, as the Court correctly says, 'was in terms punitive,' and I agree with the Court that the statute's legislative history, as well as subsequent judicial decisions construing it, makes it clear that the law was punitive—imposing additional punishment upon those convicted of either of the offenses mentioned.5
102
In these cases, however, we have before us statutes which were enacted in 1944 and 1952, respectively. In construing these statutes, I think nothing is to be gained from the legislative history of a quite different law enacted by a quite different Congress in 1865, nor from the reports of still another Congress which amended that law in 1912. Unlike the 1865 law, the legislation at issue in the cases before us is not 'in terms punitive.' And there is nothing in the history of this legislation which persuades me that these statutes, though not in terms penal, nonetheless embody a purpose of the Congresses which enacted them to impose criminal punishment without the safeguards of a criminal trial.
103
Unlike the two sections of the Nationality Act of 1940 which were in issue in Perez v. Brownell6 and Trop v. Dulles,7 § 401(j) did not have its genesis in the Cabinet Committee's draft code which President Roosevelt submitted to Congress in 1938.8 Indeed, § 401(j) was the product of a totally different environment—the experience of a nation engaged in a global war.
104
On February 16, 1944, Attorney General Biddle addressed a letter to the Chairman of the Senate Immigration Committee, calling attention to circumstances which had arisen after the institution of the draft in World War II, and suggesting the legislation which subsequently became § 401(j). The Attorney General's letter stated in part:
105
'I invite your attention to the desirability of enacting legislation which would provide (1) for the expatriation of citizens of the United States who in time of war or during a national emergency leave the United States or remain outside thereof for the purpose of evading service in the armed forces of the United States and (2) for the exclusion from the United States of aliens who leave this country for the above-mentioned purpose.
106
'Under existing law a national of the United States, whether by birth or by naturalization, becomes expatriated by operation of law if he (1) obtains naturalization in a foreign state; (2) takes an oath of allegiance to a foreign country; (3) serves in the armed forces of a foreign state if he thereby acquires the nationality of such foreign state; (4) accepts employment under a foreign state for which only nationals of such state are eligible; (5) votes in a political election in a foreign state or participates in an election or plebiscite to determine the sovereignty over foreign territory; (6) makes a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state; (7) deserts from the armed forces of the United States in time of war and is convicted thereof by a court martial; or (8) is convicted of treason (U.S.C., title 8, sec. 801). Machinery is provided whereby a person who is denied any right or privilege of citizenship on the ground that he has become expatriated may secure a judicial determination of his status; and if he is outside of the United States he is entitled to a certificate of identity which permits him to enter and remain in the United States until his status has been determined by the courts (Nationality Act of 1940, sec. 503; U.S.C., title 8, sec. 903).
107
'The files of this Department disclose that at the present time there are many citizens of the United States who have left this country for the purpose of escaping service in the armed forces. While such persons are liable to prosecution for violation of the Selective Service and Training Act of 1940, if and when they return to this country, it would seem proper that in addition they should lose their United States citizenship. Persons who are unwilling to perform their duty to their country and abandon it during its time of need are much less worthy of citizenship than are persons who become expatriated on any of the existing grounds.
108
'Accordingly, I recommend the enactment of legislation which would provide (1) for the expatriation of citizens of the United States who in time of war or during a national emergency leave the United States or remain outside thereof for the purpose of evading service in the armed forces of the United States and (2) for the exclusion from the United States of aliens who leave this country for that purpose. Any person who may be deemed to have become expatriated by operation of the foregoing provision would be entitled to have his status determined by the courts pursuant to the abovementioned section of the Nationality Act of 1940.'9
109
The bill was passed unanimously by both the House and the Senate, and became Public Law No. 431 of the Seventy-eighth Congress. Neither the committee reports nor the limited debate on the measure in Congress adds any substantial gloss to the legislative action.10 And the legislative history of § 349(a) (10) of the Immigration and Nationality Act of 1952, the statute directly involved in the second of the two cases now before us, gives no additional illumination as to the purpose of the Eighty-second Congress, since the substantive provisions of that statute were but a recodification of § 401(j) of the 1940 Act.11
110
The question of whether or not a statute is punitive ultimately depends upon whether the disability it imposes is for the purpose of vengeance or deterrence, or whether the disability is but an incident to some broader regulatory objective. See Cummings v. Missouri, 4 Wall. 277, 320, 322, 18 L.Ed. 356; United States v. Lovett, 328 U.S. 303, 308—312, 66 S.Ct. 1073, 1077, 90 L.Ed. 1252; Trop v. Dulles, 356 U.S., at 107—109, 78 S.Ct., at 601—603; See generally, Flemming v. Nestor, 363 U.S. 603, 613—617, 80 S.Ct. 1367, 1373—1376, 4 L.Ed.2d 1435; cf. De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1154, 4 L.Ed.2d 1109; Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1, 83—88, 81 S.Ct. 1357, 1403—1406, 6 L.Ed.2d 625. In commenting on the nature of this kind of inquiry, the Court said in Flemming v. Nestor, 'We observe initially that only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground. Judicial inquiries into Congressional motives are at best a hazardous matter, and when that inquiry seeks to go behind objective manifestations it becomes a dubious affair indeed. Moreover, the presumption of constitutionality with which this enactment, like any other, comes to us forbids us lightly to choose that reading of the statute's setting which will invalidate it over that which will save it.' 363 U.S., at 617, 80 S.Ct., at 1376.
111
In the light of the standard enunciated in Nestor, I can find no clear proof that the prime purpose of this legislation was punitive. To be sure, there is evidence that the deterrent effect of the legislation was considered. Moreover, the attitude of some members of Congress toward those whom the legislation was intended to reach was obviously far from neutral. But the fact that the word 'penalty' was used by an individual Senator in the congressional debates is hardly controlling. As The Chief Justice has so wisely remarked, 'How simple would be the tasks of constitutional adjudication and of law generally if specific problems could be solved by inspection of the labels pasted on them!'12
112
It seems clear to me that these putative indicia of punitive intent are far overbalanced by the fact that this legislation dealt with a basic problem of wartime morale reaching far beyond concern for any individual affected. The legislation applies only to those who have left this country or remained outside of it for the purpose of avoiding the draft. Congress can reasonably be understood to have been saying that those who flee the country for such express purposes do more than simply disobey the law and avoid the imposition of criminal sanctions. They disassociate themselves entirely from their nation, seeking refuge from their wartime obligations under the aegis of another sovereign. Congress could reasonably have concluded that the existence of such a group, who voluntarily and demonstrably put aside their United States citizenship 'for the duration,' could have an extremely adverse effect upon the morale and thus the war effort not only of the armed forces, but of the millions enlisted in the defense of their nation on the civilian front. During the consideration of § 401(j) in Congress there were repeated references to the expectation that fugitive draft evaders then living abroad would return to this country after the war to resume citizenship and to enjoy the fruits of victory. The effect upon wartime morale of the known existence of such a group, while perhaps not precisely measurable in terms of impaired military efficiency, could obviously have been considered substantial. Denationalization of this class of voluntary expatriates was a rational way of dealing with this problem by removing its visible cause. In light of this broader purpose, I cannot find, as the Court does, that § 401(j) was motivated primarily by the desire to wreak vengeance upon these individuals who fled the country to avoid military service. Rather, the statute seems to me precisely the same kind of regulatory measure, rational and efficacious, which this Court upheld against similar objections in Perez v. Brownell, supra.13
III.
113
For the reasons stated, I cannot find in the terms of these statutes or in their legislative history anything close to the 'clearest proof' that the basic congressional purpose was to impose punishment. But that alone does not answer the constitutional inquiry in these cases. As with any other exercise of congressional power, a law which imposes deprivation of citizenship, to be constitutionally valid, must bear a rational relationship to an affirmative power possessed by Congress under the Constitution. The appellants submit that in enacting this legislation, Congress could rationally have been drawing on any one of three sources of recognized constitutional power: the implied power to enact legislation for the effective conduct of foreign affairs; the express power to wage war, to raise armies, and to provide for the common defense; and the inherent attributes of sovereignty.
114
The appellants argue that this legislation, like the statutory provision sustained in Perez v. Brownell, supra, has a direct relationship to foreign affairs. They point out that international complications could arise if this country attempted to effect the return of citizen draft evaders by requests to a foreign sovereign which that nation might be unwilling to grant. The appellants insist that the possibility of international embroilments resulting from problems caused by fugitive draft evaders is not fanciful, pointing to the background of international incidents preceding the War of 1812, and the long history, later in the nineteenth century, of this country's involvement with other nations over the asserted liability of our naturalized citizens to military obligations imposed by their native countries.14 Expatriation of those who leave or remain away from the United States with draft evasion as their purpose, the appellants say, might reasonably be attributed to a congressional belief that this was the only practical way to nip these potential international problems in the bud. Compare Perez v. Brownell, 356 U.S., at 60, 78 S.Ct., at 577; Trop v. Dulles, 356 U.S., at 106, 78 S.Ct., at 600 (concurring opinion).
115
In the view I take of this case, it is unnecessary to pursue further an inquiry as to whether the power to regulate foreign affairs could justify denationalization for the conduct in question. For I think it apparent that Congress in enacting the statute was drawing upon another power, broad and far reaching.
116
A basic purpose of the Constitution was to 'provide for the common defence.' To that end, the Framers expressly conferred upon Congress a compendium of powers which have come to be called the 'war power.'15 Responsive to the scope and magnitude of ultimate national need, the war power is 'the power to wage war successfully.' See Charles Evans Hughes, War Powers under the Constitution, 42 A.B.A.Rep. 232, 238.
117
It seems to me evident that Congress was drawing upon this power when it enacted the legislation before us. To be sure, the underlying purpose of this legislation can hardly be refined to the point of isolating one single, precise objective. The desire to end a potential drain upon this country's military manpower was clearly present in the minds of the legislators and would itself have constituted a purpose having sufficient rational nexus to the exercise of the war power. Indeed, there is no more fundamental aspect of this broad power than the building and maintaining of armed forces sufficient for the common defense. Selective Draft Law Cases, (Arver v. United States) 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349; see Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305. But, in any event, the war power clearly supports the objective of removing a corrosive influence upon the morale of a nation at war. As the Court said in Hirabayashi v. United States, 320 U.S. 81, 93, 63 S.Ct. 1375, 1382, 87 L.Ed. 1774, the war power 'extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war.' See Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694.
118
This legislation is thus quite different from the statute held invalid in Trop v. Dulles, supra. In that case there were not five members of the Court who were able to find the 'requisite rational relation' between the war power of Congress and § 401(g) of the 1940 Act imposing denationalization upon wartime deserters from the armed forces. As the concurring opinion pointed out, the statute was 'not limited in its effects to those who desert in a foreign country or who flee to another land.' 356 U.S., at 107, 78 S.Ct., at 601. Indeed, 'The Solicitor General acknowledged that forfeiture of citizenship would have occurred if the entire incident had transpired in this country.' 356 U.S., at 92, 78 S.Ct., at 593. It was emphasized that conduct far short of disloyalty could technically constitute the military offense of desertion, 356 U.S., at 112, 113, 78 S.Ct., at 604, 605, and that the harshness of denationalization for conduct so potentially equivocal was 'an important consideration where the asserted power to expatriate has only a slight or tenuous relation to the granted power.' 356 U.S., at 110, 78 S.Ct., at 603.
119
The legislation now before us, on the other hand, is by its terms completely inapplicable to those guilty of draft evasion who have remained in the United States; it is exclusively aimed at those, whether or not ever criminally convicted, who have gone to or remained in another land to escape the duty of military service. Moreover, the conduct which the legislation reaches could never be equivocal in nature, but is always and clearly a 'refusal to perform this ultimate duty of American citizenship.' Trop v. Dulles, 356 U.S., at 112, 78 S.Ct., at 604 (concurring opinion).
IV.
120
There is one more point to be made as to the substantive provisions of the legislation before us in these cases. Previous decisions have suggested that congressional exercise of the power to expatriate may be subject to a further constitutional restriction—a limitation upon the kind of activity which may be made the basis of denationalization. Withdrawal of citizenship is a drastic measure. Moreover, the power to expatriate endows government with authority to define and to limit the society which it represents and to which it is responsible.
121
This Court has never held that Congress' power to expatriate may be used unsparingly in every area in which it has general power to act. Our previous decisions upholding involuntary denationalization all involved conduct inconsistent with undiluted allegiance to this country. But I think the legislation at issue in these cases comes so clearly within the compass of those decisions as to make unnecessary in this case an inquiry as to what the ultimate limitation upon the expatriation power may be.
122
The conduct to which this legislation applies, involving not only the attribute of flight or absence from this country in time of war or national emergency, but flight or absence for the express purpose of evading the duty of helping to defend this country, amounts to an unequivocal and conspicuous manifestation of nonallegiance, whether considered objectively or subjectively. Ours is a tradition of the citizen soldier. As this Court has said, '(T)he very conception of a just government and its duty to the citizen includes the reciprocal obligation of the citizen to render military service in case of need and the right to compel it.' Selective Draft Law Cases, (Arver v. United States) 245 U.S. 366, at 378, 38 S.Ct. 159, at 161. It is hardly an improvident exercise of constitutional power for Congress do disown those who have disowned this Nation in time of ultimate need.
V.
123
For the reasons stated, I believe the substantive provisions of § 401(j) of the 1940 Act and of § 349(a)(10) of the 1952 Act are constitutionally valid. In addition to its substantive provisions, however, § 349(a)(10) declares:
124
'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.'
125
I think the evidentiary presumption which the statute creates is clearly invalid, and that it fatally infected the administrative determination that Joseph Henry Cort had lost his citizenship.
126
The District Court did not mention this statutory presumption, and it is, therefore, impossible to know how much the court relied upon it, if at all. Indeed, the District Court's attention in this case was oriented primarily towards the issue of its jurisdiction and the basic issue of the constitutionality of the substantive provisions of § 349(a)(10). In view of its holding that § 349(a)(10) is unconstitutional, the court understandably did not give exhaustive attention to the factual issues presented, devoting but a single short paragraph to the question of whether Cort's conduct had brought him within the statute. 187 F.Supp., at 686.
127
But it is clear that the final reviewing agency in the State Department relied heavily upon this presumption in determining that Cort had lost his citizenship. The Board of Review on the Loss of Nationality, in its memorandum affirming the initial administrative determination that Cort had lost his citizenship, stated that '(b)y failing to comply with the notices sent to him by his local board, Dr. Cort brought upon himself the presumption mentioned in Section 349(a)(10), that his continued 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. Even if the Board should consider that the presumption could be overcome by showing that a person remained abroad for a purpose other than to avoid the military service, the evidence in Dr. Cort's case, taken as a whole, does not show that he remained abroad for a purpose other than to avoid being drafted.' (Emphasis added.) One of the Board's specific findings was 'that Dr. Cort has not overcome the presumption raised in the last sentence of Section 349(a)(10) of the Immigration and Nationality Act.'
128
As was said in Speiser v. Randall, 357 U.S. 513, at 520—521, 78 S.Ct. 1332, at 1339, 2 L.Ed.2d 1460, 'it is commonplace that the outcome of a lawsuit—and hence the vindication of legal rights—depends more often on how the factfinder appraises the facts than on a disputed construction of a statute or interpretation of a line of precedents. Thus the procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied. And the more important the rights at stake the more important must be the procedural safe-guards surrounding those rights.'
129
The presumption created by § 349(a)(10) is wholly at odds with the decisions of the Court which hold that in cases such as this a heavy burden is upon the Government to prove an act of expatriation by clear, convincing, and unequivocal evidence. Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210, 100 L.Ed. 806; Nishikawa v. Dulles, 356 U.S. 129, 78 S.Ct. 612, 2 L.Ed.2d 659. This standard commands that 'evidentiary ambiguities are not to be resolved against the citizen.' Nishikawa v. Dulles, 356 U.S., at 136, 78 S.Ct., at 617.
130
Without pausing to consider whether this evidentiary standard is a constitutional one, it is clear to me that the statutory presumption here in question is constitutionally invalid because there is insufficient 'rational connection between the fact proved and the ultimate fact presumed.' Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519. 'A statute creating a presumption that is arbitrary or that operates to deny a fair opportunity to repeal it violates the due process clause of the Fourteenth Amendment.' Manley v. Georgia, 279 U.S. 1, 6, 49 S.Ct. 215, 217, 73 L.Ed. 575. A federal statute which creates such a presumption is no less violative of Fifth Amendment due process. 'Mere legislative fiat may not take the place of fact in the determination of issues involving life, liberty or property.' Ibid. It is 'essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.' Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U.S. 35, 43, 31 S.Ct. 136, 138, 55 L.Ed. 78. Cf. Speiser v. Randall, supra.
131
The failure of a person abroad to comply with notices sent by his draft board would obviously be relevant evidence in determining whether that person had gone or remained abroad for the purpose of avoiding military service. But the statute goes much further. It creates a presumption of an expatriating act from failure to comply with 'any provision of any compulsory service laws' by a citizen abroad, regardless of the nature of the violations and regardless of the innocence of his purpose in originally leaving the United States. The various compulsory service laws of the United States contain a multitude of provisions, many of them technical or relatively insignificant. To draw from the violation of a single such provision a presumption of expatriation, with its solemn consequences, is, I think, to engaged in irrationality so gross as to be constitutionally impermissible.16
132
It is clear from the record in this case that Court's sole purpose in leaving the United States in 1951 was to accept a position as a Research Fellow at the University of Cambridge, England. The record also makes clear that in 1946 Cort was called up under the Selective Service law, physically examined, and classified as 4F because of physical disability. The record further shows that Cort voluntarily registered under the Doctors Draft Act, making special arrangements with his draft board to do so in advance of the effective date for registration under the statute, a few days before he left for Europe. Cort filed an affidavit in which he swore that it was his belief, in the light of his physical disability, that the induction order which he received in England was not issued in good faith to secure his military service, but that its purpose instead was to force him to return to the United States to be investigated by the House Committee on Un-American Activities or prosecuted under the Smith Act. He has made repeated efforts to arrange with Selective Service officials for the fulfillment, albeit belatedly, of his military obligations, if any, and in 1959 his wife came to the United States and met with officials of the Selective Service system for that purpose. The very reason he applied in Prague for a United States passport was, as he swore, so that he could return to the United States in order to respond to the indictment for draft evasion now pending against him in Massachusetts and to fulfill his Selective Service obligations, if any. When Cort applied in Prague for a passport, the American Consul there, who interviewed him, stated his opinion in writing that he had no reason to disbelieve Cort's sworn statement that he had not remained outside the United States to avoid military service.17 I mention this evidence as disclosed by the present record only to indicate why I think a new administrative hearing freed from the weight of the statutory presumption is in order, not to imply any prejudgment of what I think the ultimate administrative decision should be.
133
In No. 3, Rusk v. Cort, I would vacate the judgment of the District Court and remand the case with instructions to declare null and void the certificate of loss of nationality issued to Court by the Secretary of State, so that upon Cort's renewed application for a passport, an administrative hearing could be had, free of the evidentiary presumption of § 349(a)(10). In the event that such administrative proceedings should result in a finding that Cort had lost his United States citizenship, he would be entitled to a de novo judicial hearing18 in which the Government would have the burden of proving an act of expatriation by clear, convincing and unequivocal evidence. Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210, 100 L.Ed. 806; Nishikawa v. Dulles, 356 U.S. 129, 78 S.Ct. 612, 2 L.Ed.2d 659.
134
In No. 2, Kennedy v. Mendoza-Martinez, I would reverse the judgment of the District Court.
1
In question in No. 2, Kennedy v. Mendoza-Martinez, is § 401(j) of the Nationality Act of 1940, added in 1944, 58 Stat. 746, which reads in full as follows:
'A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by * * *
'(j) Departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the land or naval forces of the United States.'
Its successor and counterpart, § 349(a)(10) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 267—268, 8 U.S.C. § 1481(a)(10), is challenged in No. 3, Rusk v. Cort, and reads as follows:
'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—* * *
'(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.'
2
54 Stat. 894, as amended, 50 U.S.C.App. (1946 ed.) § 311.
3
The memorandum opinion in which the quoted statement appears is unreported, but the findings of fact, conclusions of law, and judgment of the court are reported at Mendoza-Martinez v. Rogers, D.C., 192 F.Supp. 1.
4
64 Stat. 826, 50 U.S.C.App. § 454 et seq.
5
62 Stat. 622, 50 U.S.C.App. § 462(a). The short title of the Act has since 1951 been the Universal Military Training and Service Act. 65 Stat. 75, 50 U.S.C.App. § 451(a).
6
In more detail, 28 U.S.C. § 2281 requires a three-judge court to be convened in order to grant 'An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes * * * upon the ground of the unconstitutionality of such statute * * *.'
7
The indictment was in three counts, but Mendoza-Martinez was convicted only on Count I, which reads in full as follows:
'Defendant Frank Martinez Mendoza, a male person within the class made subject to selective service under the Selective Training and Service Act of 1940, as amended, registered as required by said act and the regulations promulgated thereunder and became a registrant of Local Board No. 137, said board being then and there duly created and acting, under the Selective Service System established by said act, in Kern County, California, in the Northern Division of the Southern District of California; and on or about November 15, 1942, in violation of the provisions of said act and the regulations promulgated thereunder, the defendant did knowingly evade service in the land or naval forces of the United States of America in that he did knowingly depart from the United States and go to a foreign country, namely: Mexico, for the purpose of evading service in the land or naval forces of the United States and did there remain until on or about November 1, 1946.'
The judgment and commitment, similarly, stated that Mendoza-Martinez was convicted of:
'Having on or about November 15th 1942, knowingly departed from the United States to Maxico, for the purpose of evading service in the land or naval forces of the United States and having remained there until on or about November 1st 1946.'
8
Compare United States v. International Building Co., 345 U.S. 502, 73 S.Ct. 807, 97 L.Ed. 1182, in which a prior judicial determination of a tax issue, based on the parties' stipulation, was refused collateral-estoppel effect in a later action. See also Restatement, Judgments, § 68, comments g.h.i.
9
Since the Selective Training and Service Act of 1940 applied both to citizens and resident aliens, there was no need to determine in which category Mendoza-Martinez fell 'on or about November 15, 1942.' In the present proceeding it is, of course, not disputed that Mendoza-Martinez was an American citizen on that date.
10
U.S.Const., Amend. XIV, § 1: 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. * * *' This constitutional statement is to be interpreted in light of pre-existing common-law principles governing citizenship. United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890.
11
There is, however, no disagreement that citizenship may be voluntarily relinquished or abandoned either expressly or by conduct. See, e.g., Perez v. Brownell, 356 U.S. 44, 48—49, 78 S.Ct. 568, 570—571, 2 L.Ed.2d 603; id., at 66—67, 78 S.Ct. at 580 (Warren, C.J., dissenting).
12
Ex parte Quirin, 317 U.S. 1, 25—26, 63 S.Ct. 1, 9—10, 87 L.Ed. 3. See also Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413; Hirabayashi v. United States 320 U.S. 81, 93, 63 S.Ct. 1375, 1382, 87 L.Ed. 1774.
13
Mackenzie v. Hare, 239 U.S. 299, 311—312, 36 S.Ct. 106, 108, 60 L.Ed. 297; Perez v. Brownell, supra, 356 U.S., at 57—58, 78 S.Ct., at 575, 576.
14
See also Garner, Uniformity of Law in Respect to Nationality, 19 Am.J.Int'l L. 547 (1925).
15
See Seckler-Hudson, Statelessness: With Special Reference to the United States (1934), 244—253; Preuss, International Law and Deprivation of Nationality, 23 Geo.L.J. 250 (1934); Holborn, The Legal Status of Political Refugees, 1920—1938, 32 Am.J.Int'l L. 680 (1938). See also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956.
16
The drastic consequences of statelessness have led to reaffirmation in the United Nations Universal Declaration of Human Rights, Article 15, of the right of every individual to retain a nationality. U.N.Doc. No. A/810, pp. 71, 74 (1948) (adopted by the U.N. General Assembly on Dec. 10, 1948), reprinted in UNESCO, Human Rights, A Symposium, App. III (1949). See also A Study on Statelessness, U.N.Doc. No. E/1112 (1949); Second Report on the Elimination or Reduction of Statelessness, U.N.Doc. No. A/CN. 4/75 (1953); Weis, The United Nations Convention on the Reduction of Statelessness, 1961, 11 Int'l & Comp.L.Q. 1073 (1962), and authorities cited therein.
The evils of statelessness were recognized in the Report of the President's Commission on Immigration and Naturalization (1953), 241, and the treatise writers have unanimously disapproved of statutes which denationalize individuals without regard to whether they have dual nationality. Borchard, Diplomatic Protection of Citizens Abroad (1916), §§ 262, 334; Fenwick, International Law (3d ed. 1948), 263; 1 Oppenheim, supra, §§ 313 313a; Gettys, The Law of Citizenship in the United States (1934), 137—138, 160.
17
War powers: United States v. Cohen Grocery Co., 255 U.S. 81, 88, 41 S.Ct. 298, 299, 65 L.Ed. 516; Ex parte Endo, 323 U.S. 283, 298—300, 65 S.Ct. 208, 216—217, 89 L.Ed. 243. Foreign-affairs powers: Kent v. Dulles, 357 U.S. 116, 125—130, 78 S.Ct. 1113, 1118 1120, 2 L.Ed.2d 1204; Shachtman v. Dulles, 96 U.S.App.D.C. 287, 225 F.2d 938 (1955).
18
See also Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed. 194; United States v. Cohen Grocery Co., supra; Ex parte Endo, supra.
19
Compare Ex parte Mason, 105 U.S. 696, 26 L.Ed. 1213; Kahn v. Anderson, 255 U.S. 1, 8—9, 41 S.Ct. 224, 225—226, 65 L.Ed. 469; Ex parte Quirin, 317 U.S. 1, 29, 38—46, 63 S.Ct. 1, 11, 15—19, 87 L.Ed. 3.
20
'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; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.' U.S.Const. Amend. V.
'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.' U.S.Const. Amend. VI.
21
Thus the fact that Mendoza-Martinez was, as it happened, convicted of draft evasion before deportation proceedings were brought against him is of no relevance. Even if the incidence of conviction for draft evasion were potentially relevant to the validity of §§ 401(j) and 349(a)(10), the fact is that the 'crime' created by these sections includes an element not necessary to conviction for violation of § 11 of the Selective Service and Training Act of 1940—'(d)eparting from or remaining outside' the country 'for the purpose of evading or avoiding (military) training and service * * *.' See Comment, Power of Congress to Effect Involuntary Expatriation, 56 Mich.L.Rev. 1142, 1166 n. 102 (1958). Mendoza-Martinez was thus never tried for any crime the elements of which are identical with or totally inclusory of those of § 401(j), and hence was not even arguably accorded the procedural protections we here hold essential.
22
Ex parte Garland, 4 Wall. 333, 377, 18 L.Ed. 366; United States v. Lovett, 328 U.S. 303, 316, 66 S.Ct. 1073, 1079; Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 1376.
23
Cummings v. Missouri, 4 Wall. 277, 320—321, 18 L.Ed. 356; Ex parte Wilson, 114 U.S. 417, 426—429, 5 S.Ct. 935, 939—941, 29 L.Ed. 89; Mackin v. United States, 117 U.S. 348, 350—352, 6 S.Ct. 777, 778, 29 L.Ed. 909; Wong Wing v. United States, 163 U.S. 228, 237—238, 16 S.Ct. 977, 981, 41 L.Ed. 140. Reference to history here is peculiarly appropriate. Though not determinative, it supports our holding to note that forfeiture of citizenship and the related devices of banishment and exile have throughout history been used as punishment. In ancient Rome, 'There were many ways in which a man might loss his freedom, and with his freedom he necessarily lost his citizenship also. Thus he might be sold into slavery as an insolvent debtor, or condemned to the mines for his crimes as servus poenae.' Salmond, Citizenship and Allegiance, 17 L.Q.Rev. 270, 276 (1901). Banishment was a weapon in the English legal arsenal for centuries, 4 Bl.Comm. *377, but it was always 'adjudged a harsh punishment even by men who were accustomed to brutality in the administration of criminal justice.' Maxey, Loss of Nationality: Individual Choice or Government Flat? 26 Albany L.Rev. 151, 164 (1962).
24
Helwig v. United States, 188 U.S. 605, 610—612, 23 S.Ct. 427, 428—429, 47 L.Ed. 614; Child Labor Tax Case, 259 U.S. 20, 37 38, 42 S.Ct. 449, 450—451, 66 L.Ed. 817.
25
United States v. Constantine, 296 U.S. 287, 295, 56 S.Ct. 223, 227, 80 L.Ed. 233; Trop v. Dulles, supra, 356 U.S., at 96, 78 S.Ct., at 595 (opinion of The Chief Justice; id., at 111—112, 78 S.Ct., at 603 (Brennan, J., concurring).
26
Lipke v. Lederer, 259 U.S. 557, 562, 42 S.Ct. 549, 551, 66 L.Ed. 1061; United States v. La Franca, 282 U.S. 568, 572—573, 51 S.Ct. 278, 280, 75 L.Ed. 551; United States v. Constantine, supra, 296 U.S., at 295, 56 S.Ct., at 227.
27
Cummings v. Missouri, supra, 4 Wall., at 319, 18 L.Ed. 356; Child Labor Tax Case, supra, 259 U.S., at 43, 42 S.Ct., at 452; Lipke v. Lederer, supra, 259 U.S., at 561—562, 42 S.Ct., at 550—551; United States v. La Franca, supra, 282 U.S., at 572, 51 S.Ct., at 280; Trop v. Dulles, supra, 356 U.S., at 96—97, 78 S.Ct., at 595—596; Flemming v. Nestor, supra, 363 U.S., at 615, 617, 80 S.Ct., at 1375, 1376.
28
Cummings v. Missouri, supra, 4 Wall., at 318, 18 L.Ed. 356; Helwig v. United States, supra, 188 U.S., at 613, 23 S.Ct., at 429; United States v. Constantine, supra, 296 U.S., at 295, 56 S.Ct., at 227; Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 222, 100 L.Ed. 149. But cf. Child Labor Tax Case, supra, 259 U.S., at 41, 42 S.Ct., at 452; Flemming v. Nestor, supra, at 614, 616 and n. 9, 80 S.Ct., at 1374, 1375.
29
Compare Cummings v. Missouri, 4 Wall. 277, 320, 322, 18 L.Ed. 356; United States v. Lovett, 328 U.S. 303, 308—312, 66 S.Ct. 1073, 1075—1077; Wormuth, Legislative Disqualifications as Bills of Attainder, 4 Vand.L.Rev. 603, 608 (1951); Note, Punishment: Its Meaning in Relation to Separation of Power and Substantive Constitutional Restrictions and Its Use in the Lovett, Trop, Perez, and Speiser Cases, 34 Ind.L.J. 231, 279—253 (1959); Comment, The Communist Control Act of 1954, 64 Yale L.J. 712, 723 (1955).
30
Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297, and Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287, whatever the proposition for which they stand in connection with the power of Congress to impose loss of citizenship, compare Perez v. Brownell, supra, 356 U.S., at 51—52, 61—62, 78 S.Ct., at 572, 577-578 (opinion of the Court), with id., at 68—73, 78 S.Ct., at 581—583 (dissenting opinion of The Chief Justice) and id., at 80, 78 S.Ct. at 587 (dissenting opinion of Justice Douglas), are both plainly distinguishable, as is Perez. The statutes in question in each of those cases provided loss of citizenship for noncriminal behavior instead of as an additional sanction attaching to behavior already a crime, and congressional expression attending their passage lacked the overwhelming indications of punitive purpose which characterized the enactments here. Thus, basing decision as we do on the unmistakable penal intent underlying the statutes presently at issue, nothing in our holding is inconsistent with these other cases, and there is no occasion for us to pass upon any question of the power of Congress to act as it did in the statutes involved in those cases. See note 43, infra.
31
The acts of Mendoza-Martinez and Cort would have been covered by this statute as well as by §§ 401(j) and 349(a)(10).
32
See p. 31, infra.
33
The President's veto message to the Senate, S.Doc.No.708, 60th Cong., 2d Sess. (1909), indicates that his refusal to approve the measure was premised partly on the fact that it placed the discretion to remit loss of citizenship rights in the Secretary of the Navy and partly on the President's feeling that it 'would actually encourage hardened offenders to commit a heinous crime against the flag and the nation.' Id., at 2. The former was a fault of the particular form of the measure: The President was worried that power to pardon could not constitutionally be vested in anyone other than himself, and he was further disturbed that placing the power in the Secretary of the Navy would result in discrimination against army people. The President's second reason, however, indicates that to him retention of the law as it stood would serve a purpose always sought to be furthered by the imposition of punishment for crime—deterrence. This is borne out by the statements of the President's advisers in recommending that he veto it. The Secretary of War said, 'Loss of citizenship is a substantial part of the punishment, and doubtless has a very considerable effect in deterring desertions.' Id., at 3. The Secretary of the Navy stated that 'It is believed that the present law regarding the loss of citizenship as a penalty for deserters from the navy acts as a deterrent to many.' Ibid. The Attorney General indicated his agreement with the Secretary of the Navy. Id., at 5.
34
The advisers' citation of Huber v. Reily, supra, and Kurtz v. Moffitt, supra, in support of the quoted statement suggests their awareness that an underlying conviction is constitutionally mandated.
35
The relevance of such history in analyzing the character of a present enactment is illustrated by the Court's approach in Helwig v. United States, 188 U.S. 605, 613—619, 23 S.Ct. 427, 429 432, wherein at considerable length it reviewed and relied upon the character of previous relevant legislation in determining whether the statute before it, which imposed an exaction upon importers who undervalued imported goods for duty purposes, was a penalty.
36
'My Dear Senator: I invite your attention to the desirability of enacting legislation which would provide (1) for the expatriation of citizens of the United States who in time of war or during a national emergency leave the United States or remain outside thereof for the purpose of evading service in the armed forces of the United States, and (2) for the exclusion from the United States of aliens who leave this country for the above mentioned purpose.
'Under existing law a national of the United States, whether by birth or by naturalization, becomes expatriated by operation of law if he (1) obtains naturalization in a foreign state; (2) takes an oath of allegiance to a foreign country; (3) serves in the armed forces of a foreign state if he thereby acquires the nationality of such foreign state; (4) accepts employment under a foreign state for which only
nationals of such state are eligible; (5) votes in a political election in a foreign state or participates in an election or plebiscite to determine the sovereignty over foreign territory; (6) makes a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state; (7) deserts from the armed forces of the United States in time of war and is convicted thereof by a court martial; or (8) is convicted of treason (U.S.C., title 8, sec. 801). Machinery is provided whereby a person who is denied any right or privilege of citizenship on the ground that he has become expatriated may secure a judicial determination of his status; and if he is outside of the United States he is entitled to a certificate of identity which permits him to enter and remain in the United States until his status has been determined by the courts (Nationality Act of 1940, sec. 503; U.S.C., title 8, sec. 903).
'The files of this Department disclose that at the present time there are many citizens of the United States who have left this country for the purpose of escaping service in the armed forces. While such persons are liable to prosecution for violation of the Selective Service and Training Act of 1940, if and when they return to this country, it would seem proper that in addition they should lose their United States citizenship. Persons who are unwilling to perform their duty to their country and abandon it during its time of need are much less worthy of citizenship than are persons who become expatriated on any of the existing grounds.
'Accordingly, I recommend the enactment of legislation which would provide (1) for the expatriation of citizens of the United States who in time of war or during a national emergency leave the United States or remain outside thereof for the purpose of evading service in the armed forces of the United States, and (2) for the exclusion from the United States of aliens who leave this country for that purpose. Any person who may be deemed to have become expatriated by operation of the foregoing provision, would be entitled to have his status determined by the courts pursuant to the above-mentioned section of the Nationality Act of 1940.
'Adequate precedent exists for the suggested legislation in that during the First World War a statute was in force which provided
for the expatriation of any person who went beyond the limits of the United States with intent to avoid any draft into the military or naval service (37 Stat. 356). This provision was repealed by section 504 of the Nationality Code of 1940 (54 Stat. 1172; U.S.C., title 8, sec. 904).
'A draft of a proposed bill to effectuate the foregoing purpose is enclosed herewith.
'I have been informed by the Director of the Bureau of the Budget that the proposed legislation is in accord with the program of the President.
'Sincerely yours,
'Attorney General.'
37
The Senator's statement that 'Any American citizen who is convicted of violating the Selective Service Act loses his citizenship' was apparently a reference to § 401(g), and should accordingly be read in that limited fashion.
38
Section 349(a)(10) did amend § 401(j) by adding a presumption that failure to comply with any provision of the compulsory service laws of the United States means that the departure from or absence from the United States is for the purpose of avoiding military service. See note 1, supra. Our holding today obviates any necessity for passing upon this provision.
39
Lipke v. Lederer, 259 U.S. 557, 42 S.Ct. 549; United States v. La Franca, 282 U.S. 568, 51 S.Ct. 278. See Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935; Mackin v. United States, 117 U.S. 348, 6 S.Ct. 777; Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977. Compare Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216; Slochower v. Board of Higher Education, 350 U.S. 551, 554, 556, 76 S.Ct. 637, 638, 640, 100 L.Ed. 692; Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460.
40
Borchard, Diplomatic Protection of Citizens Abroad (1916), §§ 143, 341; see authorities cited in Klubock, Expatriation—Its Origin and Meaning, 38 Notre Dame Law. 1, 11, n. 68 (1962). See also Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375.
41
The astonishing story of Grover Cleveland Bergdoll is one example. See, e.g., N.Y. Times, Sept. 23, 1927, p. 8, col. 3; May 3, 1935, p. 3, col. 4; Aug. 16, 1935, p. 9, col. 3; Apr. 11, 1939, p. 6, col. 4; May 26, 1939, p. 1, col. 7; May 30, 1939, p. 36, col. 4; Oct. 6, 1939, p. 1, col. 3; Dec. 5, 1939, p. 3, col. 6; 39 Op.Atty.Gen. 303 (1939). Another example is the recent voluntary return of Edward M. Gilbert to face trial on charges for which he could not be extradited. N.Y. Times, Oct. 27, 1962, p. 1, col. 1; Oct. 30, 1962, p. 1, col. 2.
42
Moreover, the problem is, relatively, extremely small. Over 16,000,000 men served in our armed forces during World War II, and nearly 6,000,000 more served during the Korean crisis. The World Almanac (1963), 735. Yet between the time of the enactment of § 401(j) and June 30, 1961, only about 1,750 persons were denationalized for leaving the country to avoid the draft. Compare figures cited in Klubock, supra, at 49, taken from Immigration and Naturalization Service Annual Reports, with figures cited in Comment, The Expatriation Act of 1954, 64 Yale L.J. 1164, 1165, n. 9 (1955), derived partially from correspondence with the General Counsel to the Immigration and Naturalization Service.
43
The conclusion that the denationalization sanction, as used in §§ 401(j) and 349(a)(10), is a punishment, obviates any need to determine whether these sections are otherwise within the powers of Congress. That question would have had to be faced only if the foregoing inquiry had disclosed reasons other than punitive for the infliction of loss of nationality in the present context, necessitating decision whether the sections in question were within the powers of Congress as a regulatory scheme, or if the punitive forfeiture of citizenship had been surrounded with appropriate safeguards, obliging decision whether the sections were within the powers of Congress to apply as a criminal sanction.
44
14 Encyclopaedia Britannica (1957 ed.) 630.
1
The plurality opinion in Trop rested alternatively on the proposition that divestiture of citizenship can result only from a clear renunciation or transfer of allegiance on the part of the citizen. However, since this view had been rejected by a majority of the Court in Perez v. Brownell, supra, the Trop plurality relied principally on the reasoning outlined in the text.
2
My discussion of § 401(j) is equally applicable to its re-enactment as § 349(a)(10) of the Immigration and Nationality Act of 1952, involved in the Cort case.
3
The examples I have given must, of course, have some deterrent effect upon the conduct for which they are administered. But this could not, in the dissent's view, render them punitive. For expatriation as employed in § 401(j) must also, in the dissent's view, have some deterrent effect upon draft-evading flight, since if expatriation were not thought by the dissent to be an undesirable consequence, it could not serve the morale-boosting purpose which is attributed to it. (But see p. 192-193, and n. 6.) And, as the dissent recognizes, the legislative purpose was at least in part a deterrent one.
4
The 'purpose of evading or avoiding training and service' specified in § 401(j) seems no graver a reflection upon loyalty than the 'intent to remain away * * * permanently' or the 'intent to avoid hazardous duty or to shirk important service' specified in the definition of desertion codified in the Uniform Code of Military Justice, 10 U.S.C. § 885. The mere fact that the conduct described in § 401(j) requires the crossing of a frontier does not guarantee that it will be any less equivocal or more serious than was Trop's desertion. A resident of Texas might, during time of war, cross the border into Mexico intending to evade the draft, then change his mind and return the next day. Such conduct clearly results in expatriation under § 401(j).
5
It is obvious that § 401(j) does not reach any conduct not otherwise made criminal by the selective service laws. 62 Stat. 622, 50 U.S.C.App. § 462(a), in relevant part identical with Selective Training and Service Act of 1940, § 11, under which Mendoza-Martinez was prosecuted, provides: '(A)ny person who * * * evades or refuses registration or service in the armed forces or any of the requirements of this title * * *, or who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title, or rules, regulations, or directions made pursuant to this title * * *, shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment * * *.'
6
The prospective fugitive draft evader must consider that if he flees, either (1) he must eventually face criminal fine and imprisonment; or (2) he will not be able to return. To say that prospect (1) will not deter is simply to reject our entire criminal justice as fruitless so far as deterrence is an object. To say that prospect (2) will not deter is simply to concede that expatriation will not deter, either—except on the strained assumption that withdrawal of diplomatic protection can work the difference.
7
As the Government forcefully argues on the collateral estoppel point in Mendoza-Martinez, the selective service requirements apply to resident aliens as well as to citizens. Section 401(j), as discussed in Congress and by the appellants and in Mr. Justice STEWART'S dissent in these cases, seems to reflect a special concern with those who flee 'for the duration,' intending to return after peace is restored. The Government could well argue that such a fugitive, although expatriated, is a resident alien subject to compulsory military service.
1
The District Court said: 'When, as here, a citizenship claimant establishes his birth in the United States the burden is upon the Government to prove by clear, convincing and unequivocal evidence the act it relies upon to show expatriation. Nishikawa v. Dulles, 356 U.S. 129, 133, 78 S.Ct. 612, 2 L.Ed.2d 659. We think the Government has met this burden. In 1951 when the plaintiff went abroad it was for a limited period. On December 29, 1952, he accepted a position at the Harvard Medical School to begin the latter part of 1953, and indicated that he had made arrangements for prior transportation to the United States. His intention to return to this country was steadfast until he learned shortly after January 31, 1953, that the school authorities felt that they could not declare him 'essential' for teaching, and that he probably would be drafted. He wrote them on February 10, 1953, that until he heard 'something definite' from the draft borad he was 'reluctant to take a decision that may prove to be foolish or premature.' On February 9, June 4, and July 3 in 1953 the draft board sent him notices to report for physical examination, and thereafter ordered him to report for induction on September 14, 1953. The plaintiff made no response or compliance but remained abroad. We are convinced that his purpose was to avoid service in the armed forces.
'The only question left in this case is the constitutionality of the law under which the Government maintains that the plaintiff was divested of his citizenship.' 187 F.Supp., at 686.
2
Cort was not charged with going abroad in order to avoid military service, but solely with remaining abroad to avoid induction. The evidence shows convincingly that Cort's purpose in remaining abroad, first in England and then in Czechoslovakia, was to avoid the draft.
On May 29, 1951, Cort left the United States to accept a research fellowship at the University of Cambridge, England. A few days before his departure he registered as a 'special registrant' under the Doctors Draft Act. On September 11, 1952, he was classified I—A (medical), available for military service. Meanwhile, in late 1951 the Government had requested Cort to surrender his passport for invalidation, except for return to the United States. He did not do this.
On December 29, 1952, Cort accepted, by a letter sent from England, a teaching position at the Harvard Medical School, indicating his intention to return to the United States in late June 1953 in order to start work on August 1, 1953. On the same day he also wrote to the Massachusetts Medical Advisory Committee, stating that he would begin teaching at Harvard in July 1953, and requesting a draft deferment on the ground that this 'civilian function * * * shall be far more essential to my country than military service.'
On January 29, 1953, Harvard authorities advised the Medical Advisory Committee that they did not regard Cort's teaching position as essential to medical teaching, and on February 4, 1953, the Committee recommended to the local draft board that Cort be considered
'available for active military service.' Between January 31, 1953, and May 29, 1953, the Dean of the Harvard Medical School and Cort exchanged several letters—the Dean suggesting that Cort apply for a commission, Cort expressing surprise that the teaching position was not considered essential, and that until he had heard from his draft board he was 'reluctant to take a decision that may prove to be foolish or premature.'
On February 9, 1953, Cort was informed by his local draft board that his deferment request had been denied, and he was ordered to report for a physical examination within 30 days of the receipt of the letter. On June 4, 1953, and on July 3, 1953, he was again sent notices directing him to report for a physical examination. On August 13, 1953, Cort was ordered to report for induction on September 14, 1953. Cort did not report notwithstanding that in the interval, as he concedes, he had received these notices from his draft board.
On August 8, 1954, after his residence permit in England was not renewed by the British Home Office, Cort took up residence in Prague, Czechoslovakia, where not until April 7, 1959, did he make any application for a United States passport.
Against this background the District Court was certainly entitled to discredit Cort's belated efforts, long after his indictment for draft evasion, to come to terms with the military authorities, as well as his self-serving statements that he remained abroad to avoid investigation as to his alleged Communist affilations or possible prosecution under the Smith Act.
3
A presumption that one is remaining abroad with a purpose of avoiding military service, arising from continued sojourn abroad in the face of an uncontroverted call to military duty, certainly bears no resemblance whatever to the presumption found wanting in Tot. That presumption was that firearms or ammunition possessed by one previously convicted of a crime of violence, or who was a fugitive from justice, were received not only in interstate commerce, but also subsequent to the enactment of the relevant statute, the presumption arising solely from a showing that such person had already once been convicted of a crime of violence and was presently in possession of firearms or ammunition.
4
Even on the premises of my Brother STEWART, the proper course would be to remand the Cort case to the District Court for a new trial, not, as he proposes, to set aside the basic denationalization proceeding. This is not a case of the District Court being called on simply to review for error an administrative record, but one in which it was required to try the denationalization issue de novo. In these circumstances there would be no need to have the administrative proceeding start all over again.
1
The statute involved in No. 2, Kennedy v. Mendoza-Martinez, is § 401(j) of the Nationality Act of 1940, as amended, 58 Stat. 746. The statute involved in No. 3, Rusk v. Cort, is § 349(a)(10) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1481(a)(10). The substantive provisions of these statutes are practically identical. I agree with the Court that the jurisdictional objection and the claims of collateral estoppel in No. 2 are without merit, and that the constitutional validity of both statutes must therefore be determined.
2
356 U.S., at 62, 78 S.Ct., at 578 (dissenting opinion).
3
In Perez v. Brownell, the Court pointed out that the provision of the Fourteenth Amendment that 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States * * *' does not restrict the power of Congress to enact denaturalization legislation. It was there stated that 'there is nothing in the terms, the context, the history or the manifest purpose of the Fourteenth Amendment to warrant drawing from it a restriction upon the power otherwise possessed by Congress to withdraw citizenship.' 356 U.S., at 58, n. 3, 78 S.Ct., at 576.
4
Act of March 3, 1865, § 21, 13 Stat. 490.
5
This law was the direct predecessor of § 401(g) of the Nationality Act of 1940, providing the additional penalty of loss of citizenship upon those convicted by court-martial of deserting the armed forces in time of war (a provision subsequently invalidated in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 596).
6
356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603 (involving § 401(e)).
7
356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 596 (involving § 401(g)).
8
See Perez v. Brownell, 356 U.S., at 52—57, 78 S.Ct., at 572—575; Trop v. Dulles, 356 U.S., at 94—95, 78 S.Ct., at 594—595; Codification of the Nationality Laws of the United States, H.R.Comm.Print, pt. 1, 76th Cong., 1st Sess. 68—69.
9
S.Rep.No.1075, 78th Cong., 2d Sess. 2.
10
The House Committee Report does contain some particularization of the problem to which the legislation was addressed: 'It is, of course, not known how many citizens or aliens have left the United States for the purpose of evading military service. The Department of Justice discovered that in the western district of Texas, in the vicinity of El Paso alone, there were over 800 draft delinquents recorded in the local Federal Bureau of Investigation office, born in this country and, therefore citizens, who had crossed the border into Mexico for the purpose of evading the draft, but with the expectation of returning to the United States to resume residence after the war.' H.R.Rep.No.1229, 78th Cong., 2d Sess. 1—2. In explaining the bill to the House Committee of the Whole, Representative Dickstein, the Chairman of the House Committee on Immigration, stated: 'I would classify this piece of legislation as a bill to denaturalize and denationalize all draft dodgers who left this country knowing that there was a possibility that they might be drafted in this war and that they might have to serve in the armed forces, in the naval forces, or the marines, and in an effort to get out of such service. We are all American citizens and our country has a great stake in this war; nevertheless, we have found hundreds of men who have left this country to go to certain parts of Mexico and other South American countries with the idea of evading military service and of returning after the war is over, and taking their old places in our society.' 90 Cong.Rec. 3261.
In explaining the bill to the Senate, Senator Russell, the Chairman of the Senate Committee on Immigration, stated: 'The * * * bill * * * relates to the class of persons, whether citizens of the United States or aliens, who departed from the United States in order to avoid service in the armed forces of the United States under the Selective Service Act. Information before the committee indicated that on one day several hundred persons departed from the United States through the city of El Paso, Tex., alone, in order to avoid service in either the Army or the Navy of the United States, and to avoid selection under the selective-service law. This bill provides that any person who is a national of the United States, or an American citizen, and who in time of national stress departed from the United States to another country to avoid serving his country, shall be deprived of his nationality.
'It further provides that any alien who is subject to military service under the terms of the Selective Service Act, and who left this country to avoid military service, shall thereafter be forever barred from admission to the United States.
'Mr. President, I do not see how anyone could object to such a bill. An alien who remains in the country and refuses to serve in the armed forces in time of war is prosecuted under our laws, and if found guilty he is compelled to serve a term in the penitentiary. Under the terms of the Selective Service Act an American citizen who refuses to serve when he is called upon to do so is likewise subject to a prison term. Certainly those who, having enjoyed the advantages of living in the United States, were unwilling to serve their country or subject themselves to the Selective Service Act, should be penalized in some measure. This bill would deprive such persons as are citizens of the United States of their citizenship, and, in the case of aliens, would forever bar them from admission into the United States. Any American citizen who is convicted of violating the Selective Service Act loses his citizenship. This bill would merely impose a similar penalty on those who are not subject to the jurisdiction of our courts, the penalty being the same as would result in the case of those who are subject to the jurisdiction of our courts.' 90 Cong.Rec. 7628—7629.
11
Section 349(a)(10) did add a presumption that failure to comply with any provision of the compulsory service laws of the United States means that the departure from or absence from the United States is for the purpose of avoiding military service. See pp. 215—219.
12
Trop v. Dulles, 356 U.S., at 94, 78 S.Ct., at 594.
13
I cannot suppose that the Court today is saying that Congress can impose denationalization without the safeguards of a criminal trial for conduct which is unexceptionable—like marrying an alien—or relatively innocuous—like voting in a foreign election but that Congress cannot do so for conduct which is reprehensible.
14
See III Moore, Digest of International Law (1906), §§ 434, 436—438, 440; Tsiang, The Question of Expatriation in America Prior to 1907 (1942), 44—55, 71—72, 78—84.
15
'The Congress shall have Power * * *
'To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
'To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
'To provide and maintain a Navy;
'To make Rules for the Government and Regulation of the land and naval Forces;
'To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.' Art. I, § 8, cls. 11, 12, 13, 14, 18.
16
McFarland v. American Sugar Rfg. Co., 241 U.S. 79, 86, 36 S.Ct. 498, 501, 60 L.Ed. 899; Western & Atlantic R. Co. v. Henderson, 279 U.S. 639, 642, 49 S.Ct. 445, 447, 73 L.Ed. 884; Morrison v. California, 291 U.S. 82, 90, 54 S.Ct. 281, 284, 78 L.Ed. 664. See Bailey v. Alabama, 219 U.S. 219, 239, 31 S.Ct. 145, 150, 55 L.Ed. 191; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 81, 31 S.Ct. 337, 341, 55 L.Ed. 369.
17
The United States Consul said, 'Without evidence to the contrary, the consular officer has no reason to doubt Dr. Cort's statements made in the attached affidavit which purports to answer the charge that he departed from and remained outside the jurisdiction of the United States for the purpose of evading or avoiding training and service in the armed forces of the United States.'
18
Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938; Kessler v. Strecker, 307 U.S. 22, 35, 59 S.Ct. 694, 700, 83 L.Ed. 1082; Frank v. Rogers, 102 U.S.App.D.C. 367, 253 F.2d 889.
| 12
|
372 U.S. 29
83 S.Ct. 594
9 L.Ed.2d 561
UNITED STATES, Appellant,v.NATIONAL DAIRY PRODUCTS CORP. et al.
No. 18.
Reargued Dec. 5, 1962.
Decided Feb. 18, 1963.
Rehearing Denied April 1, 1963.
See 372 U.S. 961, 83 S.Ct. 1011.
Daniel M. Friedman, Washington, D.C., for appellant.
John T. Chadwell, Chicago, Ill., for appellees.
Mr. Justice CLARK delivered the opinion of the Court.
1
This case involves the question whether § 3 of the Robinson-Patman Act, 15 U.S.C. § 13a, making it a crime to sell goods at 'unreasonably low prices for the purpose of destroying competition or eliminating a competitor,' is unconstitutionally vague and indefinite as applied to sales made below cost with such purpose. National Dairy and Raymond J. Wise, a vice-president and director, upon being charged, inter alia, with violating § 3 by making sales below cost for the purpose of destroying competition, moved for dismissal of the Robinson-Patman Act counts of the indictment on the ground that the statute is unconstitutionally vague and indefinite. The District Court granted the motion and ordered dismissal. On direct appeal under the Criminal Appeals Act, 18 U.S.C. § 3731, we noted probable jurisdiction, 368 U.S. 808, 82 S.Ct. 45, 7 L.Ed.2d 19, because of the importance of the issue in the administration of the Robinson-Patman Act. We have concluded that the order of dismissal was error and therefore remand the case for trial.
I.
2
National Dairy is engaged in the business of purchasing, processing, distributing and selling milk and other dairy products throughout the United States. Through its processing plant in Kansas City, Missouri, National Dairy has for the past several years been in competition with national concerns and various local dairies in the Greater Kansas City area and the surrounding areas of Kansas and Missouri. In the Greater Kansas City market National Dairy distributes its products directly, but cities and towns in the surrounding Kansas and Missouri areas outside this market are served by independent distributors who purchase milk from National Dairy and resell on their own account.
3
The indictment charged violations of both the Sherman Act, 15 U.S.C. § 1, and the Robinson-Patman Act in Kansas City and in six local markets in the adjacent area.1 The Robinson-Patman counts charged National Dairy and Wise with selling milk in those markets 'at unreasonably low prices for the purpose of destroying competition.' Further specifying the acts complained of, the indictment charged National Dairy with having 'utilized the advantages it possesses by reason of the fact that it operates in a great many different geographical localities in order to finance and subsidize a price war against the small dairies selling milk in competition with it * * * by intentionally selling milk (directly or to a distributor) at prices below National's cost.' In five of the markets National Dairy's pricing practice was alleged to have resulted in 'severe financial losses to small dairies,' and in two others the effect was claimed to have been to 'eliminate competition' and 'drive small dairies from' the market.
4
National Dairy and Wise move to dismiss all of the Robinson-Patman counts on the grounds that the statutory provision, 'unreasonably low prices,' is so vague and indefinite as to violate the due process requirement of the Fifth Amendment and an indictment based on this provision is violative of the Sixth Amendment in that it does not adequately apprise them of the charges. The District Court, after rendering an oral opinion holding that § 3 of the Robinson-Patman Act is unconstitutionally vague and indefinite, granted the motion and ordered dismissal of the § 3 counts. The case came here on direct appeal from the order of dismissal.
II.
5
National Dairy and Wise urge that § 3 is to be tested solely 'on its face' rather than as applied to the conduct charged in the indictment, i.e., sales below cost for the purpose of destroying competition. The Government on the other hand, places greater emphasis on the latter, contending that whether or not there is doubt as to the validity of the statute in all of its possible applications, s 3 is plainly constitutional in its application to the conduct alleged in the indictment.
6
It is true that a statute attacked as vague must initially be examined 'on its face,' but it does not follow that a readily discernible dividing line can always be drawn, with statutes falling neatly into one of the two categories of 'valid' or 'invalid' solely on the basis of such an examination.
7
We do not evaluate § 3 in the abstract.
8
'The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases * * *. (A) limiting construction could be given to the statute by the court responsible for its construction if an application of doubtful constitutionality were * * * presented. We might add that application of this rule frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy.' United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960).
9
The strong presumptive validity that attaches to an Act of Congress has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language. E.g., Jordan v. De George, 341 U.S. 223, 231, 71 S.Ct. 703, 707, 95 L.Ed. 886 (1951), and United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1541, 91 L.Ed. 1877 (1947). Indeed, we have consistently sought an interpretation which supports the constitutionality of legislation. E.g., United States v. Rumely, 345 U.S. 41, 47, 73 S.Ct. 543, 546, 97 L.Ed. 770 (1953); Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932); see Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).
10
Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Harriss, 347 U.S. 612, 617, 74 S.C. 808, 811, 98 L.Ed. 989 (1954). In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged. Robinson v. United States, 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944 (1945). In view of these principles we must conclude that if § 3 of the Robinson-Patman Act gave National Dairy and Wise sufficient warning that selling below cost for the purpose of destroying competition is unlawful, the statute is constitutional as applied to them.2 This is not to say that a beadsight indictment can correct a blunderbuss statute, for the latter itself must be sufficiently focused to forewarn of both its reach and coverage. We therefore consider the vagueness attack solely in relation to whether the statute sufficiently warned National Dairy and Wise that selling 'below cost' with predatory intent was within its prohibition of 'unreasonably low prices.'
III.
11
The history of § 3 of the Robinson-Patman Act indicates that selling below cost, unless mitigated by some acceptable business exigency, was intended to be prohibited by the words 'unreasonably low prices.' That sales below cost without a justifying business reason may come within the proscriptions of the Sherman Act has long been established. See e.g., Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911). Further, when the Clayton Act was enacted in 1914 to strengthen the Sherman Act, Congress passed § 2 to cover price discrimination by large companies which compete by lowering prices, 'oftentimes below the cost of production * * *with the intent to destroy and make unprofitable the business of their competitors.' H.R.Rep.No.627, 63d Cong., 2d Sess. 8. The 1936 enactment of the Robinson-Patman Act was for the purpose of 'strengthening the Clayton Act provisions,' Federal Trade Comm. v. Anheuser-Busch, Inc., 363 U.S. 536, 544, 80 S.Ct. 1267, 1272, 4 L.Ed.2d 1385 (1960), and the Act was aimed at a specific weapon of the monopolist—predatory pricing. Moreover, § 3 was described by Representative Utterback, a House manager of the joint conference committee, as attaching 'criminal penalties in addition to the civil liabilities and remedies already provided by the Clayton Act.' 80 Cong.Rec. 9419.
12
This Court, in Moore v. Mead's Fine Bread Co., 348 U.S. 115, 75 S.Ct. 148, 99 L.Ed. 145 (1954), a case based in part on § 3, recognized the applicability of the Robinson-Patman Act to conduct quite similar to that with which National Dairy and Wise are charged here. The Court said, 'Congress by the Clayton Act and Robinson-Patman Act barred the use of interstate business to destroy local business' through programs in which 'profits made in interstate activities would underwrite the losses of local price-cutting campaigns.' Id. at 120, 119, 75 S.Ct. at 151, 150.
13
In proscribing sales at 'unreasonably low prices for the purpose of destroying competition or eliminating a competitor' we believe that Congress condemned sales made below cost for such purpose. And we believe that National Dairy and Wise could reasonably understand from the statutory language that the conduct described in the indictment was proscribed by the Act. They say, however, that this is but the same horse with a different bridle because the phrase 'below cost' is itself a vague and indefinite expression in business.
14
Whether 'below cost' refers to 'direct' or 'fully distributed' cost or some other level of cost computation cannot be decided in the abstract. There is nothing in the record on this point, and it may well be that the issue will be rendered academic by a showing that National Dairy sold below any of these cost levels. Therefore, we do not reach this issue here. As we said in Automatic Canteen Co. of American v. Federal Trade Comm., 346 U.S. 61, 65, 73 S.Ct. 1017, 1020, 97 L.Ed. 1454 (1953): 'Since precision of expression is not an outstanding characteristic of the Robinson-Patman Act, exact formulation of the issue before us is necessary to avoid inadvertent pronouncement on statutory language in one context when the same language may require separate consideration in other settings.'
15
Finally, we think the additional element of predatory intent alleged in the indictment and required by the Act provides further definition of the prohibited conduct. We believe the notice here is more specific than that which was held adequate in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), in which a requirement of intent served to 'relieve the statute of the objection that it punishes without warning an offense of which the accused was unaware.' Id. at 102, 65 S.Ct. at 1036; see id. at 101—107, 65 S.Ct. at 1035—1038. Proscribed by the statute in Screws was the intentional achievement of a result, i.e., the willful deprivation of certain rights. The Act here, however, in prohibiting sales at unreasonably low prices for the purpose of destroying competition, listed as elements of the illegal conduct not only the intent to achieve a result—destruction of competition but also the act—selling at unreasonably low prices—done in furtherance of that design or purpose. It seems clear that the necessary specificity of warning is afforded when, as here, separate, though related, statutory elements of prohibited activity come to focus on one course of conduct.
16
United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516 (1921), on which much reliance is placed, is inapposite here. In Cohen the Act proscribed 'any unjust or unreasonable rate or charge.' The charge in the indictment was in the exact language of the statute, and, in specifying the conduct covered by the charge, the indictment did nothing more than state the price the defendant was alleged to have collected. Hence, the Court held that a 'specific or definite' act was neither proscribed by the Act nor alleged in the indictment. Id. at 89, 41 S.Ct. at 300. Moreover, the standard held too vague in Cohen was without a meaningful referent in business practice or usage. '(T)here was no accepted and fairly stable commercial standard which could be regarded as impliedly taken up and adopted by the statute * * *.' Small Co. v. American Sugar Rfg. Co., 267 U.S. 233, 240—241, 45 S.Ct. 295, 297, 69 L.Ed. 589 (1925). In view of the business practices against which § 3 was unmistakably directed and the specificity of the violations charged in the indictment here, both absent in Cohen, the proffered analogy to that case must be rejected.
17
In this connection we also note that the approach to 'vagueness' governing a case like this is different from that followed in cases arising under the First Amendment. There we are concerned with the vagueness of the statute 'on its face' because such vagueness may in itself deter constitutionally protected and socially desirable conduct. See Thornhill v. Alabama, 310 U.S. 88, 98, 60 S.Ct. 736, 742, 84 L.Ed. 1093 (1940); N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328. No such factor is present here where the statute is directed only at conduct designed to destroy competition, activity which is neither constitutionally protected nor socially desirable. We are thus permitted to consider the warning provided by § 3 not only in terms of the statute 'on its face' but also in the light of the conduct to which it is applied. The reliance of National Dairy and Wise on First Amendment cases is therefore misplaced.
IV.
18
This opinion is not to be construed, however, as holding that every sale below cost constitutes a violation of § 3. Such sales are not condemned when made in furtherance of a legitimate commercial objective, such as the liquidation of excess, obsolete or perishable merchandise, or the need to meet a lawful, equally low price of a competitor. 80 Cong.Rec. 6332, 6334; see Ben Hur Coal Co. v. Wells, 242 F.2d 481 (C.A.10th Cir., 1957). Sales below cost in these instances would neither be 'unreasonably low' nor made with predatory intent. But sales made below cost without legitimate commercial objective and with specific intent to destroy competition would clearly fall within the prohibitions of § 3.
19
Since the indictment charges the latter conduct and, as noted, supra, n. 2, we are bound by the well-pleaded allegations of the indictment, we must conclude that National Dairy and Wise were adequately forewarned of the illegal conduct charged against them and remand the case for trial. Our holding, of course, does not foreclose proof on the merits as to the reasonableness of the alleged pricing conduct or, for that matter, the absence of the predatory intent necessary to conviction.
20
Reversed and remanded.
21
Mr. Justice BLACK, with whom Mr. Justice STEWART and Mr. Justice GOLDBERG join, dissenting.
22
The statute here involved makes it a crime to sell 'goods at unreasonably low prices for the purpose of destroying competition or eliminating a competitor.' 15 U.S.C. § 13a. In United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516 (1921), this Court held unconstitutional and void for vagueness a statute which made it a crime 'for any person willfully * * * to make any unjust or unreasonable rate or charge' in dealing in or with any necessaries. The rule established by that case has been often followed,1 is in my judgment sound, and should control this case. Accordingly, I would affirm the District Court's judgment holding the statute invalid. The Court here attempts by interpretation to substitute unambiguous standards for the vague standard of 'unreasonably low prices' used by Congress in the statute. It seems to me that if this criminal statute is to be so drastically reconstructed it should be done by Congress, not by us. Moreover, I agree with the Attorney General's National Committee to Study the Antitrust Laws, which concluded:
23
'Doubts besetting Section 3's constitutionality seem well founded; no gloss imparted by history or adjudication has settled the vague contours of this harsh criminal law.'2
1
Seven counts of the 15-count indictment charged violations of § 3 of the Robinson-Patman Act. The Sherman Act and Robinson-Patman Act counts relate to the same course of conduct.
One Robinson-Patman count, number 13, charges Raymond J. Wise, a vicepresident and director of National, with authorizing National's pricing practice and ordering its effectuation in the Kansas City market. United States v. Wise, 370 U.S. 405, 82 S.Ct. 1354, 8 L.Ed.2d 590 (1962), involves two Sherman Act counts of the indictment which named Wise as a defendant.
2
It should be noted that, in reviewing a case in which a motion to dismiss was granted, we are required to accept well-pleaded allegations of the indictment as the hypothesis for decision. Boyce Motor Lines v. United States, 342 U.S. 337, 343, 72 S.Ct. 329, 332, 96 L.Ed. 367 (1952).
1
E.g., Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146 (1927); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939); cf. United States v. Cardiff, 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200 (1952)9
2
Atty.Gen.Nat.Comm. Antitrust Rep. 201 (1955) (recommending repeal of § 3).
| 78
|
372 U.S. 10
83 S.Ct. 671
9 L.Ed.2d 547
Frank W. McCULLOCH, Chairman, and Philip Ray Rodgers et al., Members, National Labor Relations Board, Petitioners,v.SOCIEDAD NACIONAL de MARINEROS de HONDURAS. Ivan C. McLEOD, Regional Director for the Second Region of the National LaborRelations Board, Petitioner, v. EMPRESA HONDURENA de VAPORES, S.A. NATIONAL MARITIME UNION OF AMERICA, AFL—CIO, Petitioner, v. EMPRESA HONDURENA de VAPORES, S.A.
Nos. 107, 91, 93.
Argued Dec. 11 and 12, 1962.
Decided Feb. 18, 1963.
[Syllabus from pages 10-11 intentionally omitted]
Dominick L. Manoli, Washington, D.C., for petitioners in Nos. 91 and 107.
Herman E. Cooper, New York City, for petitioner in No. 93, Archibald Cox, Sol. Gen., for the United States, as amicus curiae, by special leave of Court.
Orison S. Marden, New York City, for respondent in Nos. 91 and 93.
Charles S. Rhyne, Washington, D.C. for respondent in No. 107.
[Amicus Curiae intentionally omitted]
Mr. Justice CLARK delivered the opinion of the Court.
1
These companion cases, involving the same facts, question the coverage of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 541, 29 U.S.C. § 151 et seq. A corporation organized and doing business in the United States beneficially owns seagoing vessels which make regular sailings between United States, Latin American and other ports transporting the corporation's products and other supplies; each of the vessels is legally owned by a foreign subsidiary of the American corporation, flies the flag of a foreign nation, carries a foreign crew and has other contacts with the nation of its flag. The question arising is whether the Act extends to the crews engaged in such a maritime operation. The National Labor Relations Board in a representation proceeding on the application of the National Maritime Union held that it does and ordered an election. 134 N.L.R.B. 287. The vessels' foreign owner sought to enjoin the Board's Regional Director from holding the election, but the District Court for the Southern District of New York denied the requested relief. 200 F.Supp. 484. The Court of Appeals for the Second Circuit reversed, holding that the Act did not apply to the maritime operations here and thus the Board had no power to direct the election. 300 F.2d 222. The N.M.U. had intervened in the proceeding, and it petitioned for a writ of certiorari (No. 93), as did the Regional Director (No. 91). Meanwhile, the United States District Court for the District of Columbia, on application of the foreign bargaining agent of the vessels' crewmen, enjoined the Board members in No. 107. 201 F.Supp. 82. We granted each of the three petitions for certiorari, 370 U.S. 915, 82 S.Ct. 1559, 8 L.Ed.2d 496, and consolidated the cases for argument.1
2
We have concluded that the jurisdictional provisions of the Act do not extend to maritime operations of foreign-flag ships employing alien seamen.
I.
3
The National Maritime Union of America, AFL—CIO, filed a petition in 1959 with the National Labor Relations Board seeking certification under § 9(c) of the Act, 29 U.S.C. § 159(c), as the representative of the unlicensed seamen employed upon certain Honduran-flag vessels owned by Empresa Hondurena de Vapores, S.A., a Honduran corporation. The petition was filed against United Fruit Company, a New Jersey corporation which was alleged to be the owner of the majority of Empresa's stock. Empresa intervened and on hearing it was shown that United Fruit owns all of its stock and elects its directors, though no officer or director of Empresa is an officer or director of United Fruit and all are residents of Honduras. In turn the proof was that United Fruit is owned by citizens of the United States and maintains its principal office at Boston. Its business was shown to be the cultivation, gathering, transporting and sale of bananas, sugar, cacao and other tropical produce raised in Central and South American countries and sold in the United States.
4
United Fruit maintains a fleet of cargo vessels which it utilizes in this trade. A portion of the fleet consists of 13 Honduran-registered vessels operated2 by Empresa and time chartered to United Fruit, which vessels were included in National Maritime Union's representation proceeding. The crews on these vessels are recruited by Empresa in Honduras. They are Honduran citizens (save one Jamaican) and claim that country as their residence and home port. The crew are required to sign Honduran shipping articles, and their wages, terms and condition of employment, discipline, etc., are controlled by a bargaining agreement between Empresa and a Honduran union, Sociedad Nacional de Marineros de Honduras. Under the Honduran Labor Code only a union whose 'juridic personality' is recognized by Honduras and which is composed of at least 90% of Honduran citizens can represent the seamen on Honduran-registered ships. The N.M.U. fulfils neither requirement. Further under Honduran law recognition of Sociedad as the bargaining agent compels Empresa to deal exclusively with it on all matters covered by the contract. The current agreement in addition to recognition of Sociedad provides for a union shop, with a no-strike-or-lockout provision, and sets up wage scales, special allowances, maintenance and cure provisions, hours of work, vacation time, holidays, overtime, accident prevention, and other details of employment as well.
5
United Fruit, however, determines the ports of call of the vessels, their cargoes and sailings, integrating the same into its fleet organization. While the voyages are for the most part between Central and South American ports and those of the United States, the vessels each call at regular intervals at Honduran ports for the purpose of taking on and discharging cargo and, where necessary, renewing the ship's articles.
II.
6
The Board concluded from these facts that United Fruit operated a single, integrated maritime operation within which were the Empresa vessels, reasoning that United Fruit was a joint employer with Empresa of the seamen covered by N.M.U.'s petition. Citing its own West India Fruit & Steamship Co. opinion, 130 N.L.R.B. 343 (1961), it concluded that the maritime operations involved substantial United States contacts, outweighing the numerous foreign contacts present. The Board held that Empresa was engaged in 'commerce' within the meaning of § 2(6) of the Act3 and that the maritime operations 'affected commerce' within § 2(7),4 meeting the jurisdictional requirement of § 9(c) (1).5 It therefore ordered an election to be held among the seamen signed on Empresa's vessels to determine whether they wished N.M.U., Sindicato Maritimo Nacional de Honduras,6 or no union to represent them.
7
As we have indicated, both Empresa and Sociedad brought suits in Federal District Courts to prevent the election, Empresa proceeding in New York against the Regional Director—Nos. 91 and 93—and Sociedad in the District of Columbia against the members of the Board—No. 107. In Nos. 91 and 93 the jurisdiction of the District Court was challenged on two grounds: first, that review of representation proceedings is limited by § 9(d) of the Act, 29 U.S.C. § 159(d), to indirect review as part of a petition for enforcement or review of an order entered under § 10(c), 29 U.S.C. § 160(c); and, second, that the Board members were indispensable parties to the action. The challenge based upon § 9(d) was not raised or adjudicated in Sociedad's action against the Board members—No. 107 and the indispensable-parties challenge is of course not an issue. Sociedad is not a party in Nos. 91 and 93, although the impact of the Board order—the same order challenged in No. 107—is felt by it. That order has the effect of canceling Sociedad's bargaining agreement with Empresa's seamen, since Sociedad is not on the ballot called for by the Board. No. 107, therefore, presents the question in better perspective, and we have chosen it as the vehicle for our adjudication on the merits. This obviates our passing on the jurisdictional questions raised in Nos. 91 and 93, since the disposition of those cases is controlled by our decision in No. 107.
8
We are not of course precluded from reexamining the jurisdiction of the District Court in Sociedad's action, merely because no challenge was made by the parties. Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338 (1934). Having examined the question whether the District Court had jurisdiction at the instance of Sociedad to enjoin the Board's order, we hold that the action falls within the limited exception fashioned in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.id 210 (1958). In that case judicial intervention was permitted since the Board's order was 'in excess of its delegated powers and contrary to a specific prohibition in the Act.' Id., at 188, 79 S.Ct., at 183, 184, 3 L.Ed.2d 210. While here the Board has violated no specific prohibition in the Act, the overriding consideration is that the Board's assertion of power to determine the representation of foreign seamen aboard vessels under foreign flags has aroused vigorous protests from foreign governments and created international problems for our Government. Important interests of the immediate parties are of course at stake. But the presence of public questions particularly high in the scale of our national interest because of their international complexion is a uniquely compelling justification for prompt judicial resolution of the controversy over the Board's power. No question of remotely comparable urgency was involved in Kyne, which was a purely domestic adversary situation. The exception recognized today is therefore not to be taken as an enlargement of the exception in Kyne.
III.
9
Since the parties all agree that the Congress has constitutional power to apply the National Labor Relations Act to the crews working foreign-flag ships, at least while they are in American waters, The Exchange, 7 Cranch 116, 143, 3 L.Ed. 287 (1812); Wildenhus's Case, 120 U.S. 1, 11, 7 S.Ct. 385, 30 L.Ed. 565 (1887); Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 142, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957), we go directly to the question whether Congress exercised that power. Our decision on this point being dispositive of the case, we do not reach the other questions raised by the parties and the amici curiae.
10
The question of application of the laws of the United States to foreign-flag ships and their crews has arisen often and in various contexts.7 As to the application of the National Labor Relations Act and its amendments, the Board has evolved a test relying on the relative weight of a ship's foreign as compared with its American contacts. That test led the Board to conclude here, as in West India Fruit & Steamship Co., supra, that the foreign-flag ships' activities affected 'commerce' and brought them within the coverage of the Act. Where the balancing of the vessel's contacts has resulted in a contrary finding, the Board has concluded that the Act does not apply.8
11
Six years ago this Court considered the question of the application of the Taft-Hartley amendments to the Act in a suit for damages 'resulting from the picketing of a foreign ship operated entirely by foreign seamen under foreign articles while the vessel (was) temporarily in an American port.' Benz v. Compania Naviera Hidalgo, supra, 353 U.S., at 139, 77 S.Ct., at 700, 1 L.Ed.2d 709. We held that the Act did not apply, searching the language and the legislative history and concluding that the latter 'inescapably describes the boundaries of the Act as including only the workingmen of our own country and its possessions.' Id., at 144, 77 S.Ct., at 702, 703, 1 L.Ed.2d 709. Subsequently, in Marine Cooks & Stewards v. Panama S.S. Co., 362 U.S. 365, 80 S.Ct. 779, 4 L.Ed.2d 797 (1960), we held that the Norris-LaGuardia Act, 29 U.S.C. § 101, deprived a Federal District Court of jurisdiction to enjoin picketing of a foreign-flag ship, specifically limiting the holding to the jurisdiction of the court 'to issue the injunction it did under the circumstances shown.' Id., at 372, 80 S.Ct., at 784, 4 L.Ed.2d 797. That case cannot be regarded as limiting the earlier Benz holding, however, since no question as to 'whether the picketing * * * was tortious under state or federal law' was either presented or decided. Ibid. Indeed, the Court specifically noted that the application of the Norris-LaGuardia Act 'to curtail and regulate the jurisdiction of courts' differs from the application of the Taft-Hartley Act 'to regulate the conduct of people engaged in labor disputes.' Ibid.; see Comment, 69 Yale L.J. 498, 523—525 (1960).
12
It is contended that this case is nonetheless distinguishable from Benz in two respects. First, here there is a fleet of vessels not temporarily in United States waters but operating in a regular course of trade between foreign ports and those of the United States; and, second, the foreign owner of the ships is in turn owned by an American corporation. We note that both of these points rely on additional American contacts and therefore necessarily presume the validity of the 'balancing of contacts' theory of the Board. But to follow such a suggested procedure to the ultimate might require that the Board inquire into the internal discipline and order of all foreign vessels calling at American ports. Such activity would raise considerable disturbance not only in the field of maritime law but in our international relations as well. In addition, enforcement of Board orders would project the courts into application of the sanctions of the Act to foreign-flag ships on a purely ad hoc weighing of contacts basis.9 This would inevitably lead to embarrassment in foreign affairs and be entirely infeasible in actual practice. The question, therefore, appears to us more basic; namely, whether the Act as written was intended to have any application to foreign registered vessels employing alien seamen.
13
Petitioners say that the language of the Act may be read literally as including foreign-flag vessels within its coverage. But, as in Benz, they have been unable to point to any specific language in the Act itself or in its extensive legislative history that reflects such a congressional intent. Indeed, the opposite is true as we found in Benz, where we pointed to the language of Chairman Hartley characterizing the Act as 'a bill of rights both for American workingmen and for their employers.' 353 U.S., at 144, 77 S.Ct., at 702, 703, 1 L.Ed.2d 709. We continue to believe that if the sponsors of the original Act or of its amendments conceived of the application now sought by the Board they failed to translate such thoughts into describing the boundaries of the Act as including foreign-flag vessels manned by alien crews.10 Therefore, we find no basis for a construction which would exert United States jurisdiction over and apply its laws to the internal management and affairs of the vessels here flying the Honduran flag, contrary to the recognition long afforded them not only by our State Department11 but also by the Congress.12 In addition, our attention is called to the well-established rule of international law that the law of the flag state ordinarily governs the internal affairs of a ship. See Wildenhus's Case, supra, 120 U.S., at 12, 7 S.Ct., at 387, 30 L.Ed. 565; Colombos, The International Law of the Sea (3d rev. ed. 1954), 222—223. The possibility of international discord cannot therefore be gainsaid. Especially is this true on account of the concurrent application of the Act and the Honduran Labor Code that would result with our approval of jurisdiction. Sociedad, currently the exclusive bargaining agent of Empresa under Honduran law, would have a head-on collision with N.M.U. should it become the exclusive bargaining agent under the Act. This would be aggravated by the fact that under Honduran law N.M.U. is prohibited from representing the seamen on Honduran-flag ships even in the absence of a recognized bargaining agent. Thus even though Sociedad withdrew from such an intramural labor fight—a highly unlikely circumstance—questions of such international import would remain as to invite retaliatory action from other nations as well as Honduras.
14
The presence of such highly charged international circumstances brings to mind the admonition of Mr. Chief Justice Marshall in The Charming Betsy, 2 Cranch 64, 118, 2 L.Ed. 208 (1804), that 'an act of congress ought never to be construed to violate the law of nations if any other possible construction remains * * *.' We therefore conclude, as we did in Benz, that for us to sanction the exercise of local sovereignty under such conditions in this 'delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed.' 353 U.S., at 147, 77 S.Ct., at 704, 1 L.Ed.2d 709. Since neither we nor the parties are able to find any such clear expression, we hold that the Board was without jurisdiction to order the election. This is not to imply, however, 'any impairment of our own sovereignty, or limitation of the power of Congress' in this field. Lauritzen v. Larsen, 345 U.S. 571, 578, 73 S.Ct. 921, 926, 97 L.Ed. 1254 (1953). In fact, just as we directed the parties in Benz to the Congress, which 'alone has the facilities necessary to make fairly such an important policy decision,' 353 U.S., at 147, 77 S.Ct., at 704, 1 L.Ed.2d 709, we conclude here that the arguments should be directed to the Congress rather than to us. Cf. Lauritzen v. Larsen, supra, 345 U.S., at 593, 73 S.Ct., at 933, 934, 97 L.Ed. 1254.
15
The judgment of the District Court is therefore affirmed in No. 107. The judgment of the Court of Appeals in Nos. 91 and 93 is vacated and the cases are remanded to that court, with instructions that it remand to the District Court for dismissal of the complaint in light of our decision in No. 107. It is so ordered.
16
Judgment of District Court of District of Columbia affirmed; judgment of Court of Appeals for the Second Circuit vacated and cases remanded with instructions.
17
Mr. Justice GOLDBERG took no part in the consideration or decision of these cases.
Mr. Justice DOUGLAS, concurring.1
18
I had supposed that the activities of American labor organizations whether related to domestic vessels or to foreign ones were covered by the National Labor Relations Act, at least absent a treaty which evinces a different policy.2 Cf. Cook v. United States, 288 U.S. 102, 118— 120 53 S.Ct. 305, 77 L.Ed. 641. But my views were rejected in Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709; and, having lost that cause in Benz, I bow to the inexorable result of its extension here, though not without some misgivings. The practical effect of our decision is to shift from all the taxpayers to seamen alone the main burden of financing an executive policy of assuring the availability of an adequate American-owned merchant fleet for federal use during national emergencies. See Note, Panlibhon Registration of American-Owned Merchant Ships: Government Policy and the Problem of the Courts, 60 Col.L.Rev. 711.
1
In No. 107, appeal was perfected to the Court of Appeals for the District of Columbia Circuit, to which court we granted a writ of certiorari before judgment.
2
Ten of the 13 vessels are owned and operated by Empresa. Three are owned by Balboa Shipping Co., Inc., a Panamanian subsidiary of United Fruit. Empresa acts as an agent for Balboa in the management of the latter vessels.
3
29 U.S.C. § 152(6):
'The term 'commerce' means trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia or any Territory of the United States and any State or other Territory, or between any foreign country and any State, Territory, or the District of Columbia, or within the District of Columbia or any Territory, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign country.'
4
29 U.S.C. § 152(7):
'The term 'affecting commerce' means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.'
5
29 U.S.C. § 159(c)(1):
'Whenever a petition shall have been filed * * * the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing * * *.'
Section 10(a) of the Act, 29 U.S.C. § 160(a), imposes the same requirement, empowering the Board to 'prevent any person from engaging in any unfair labor practice * * * affecting commerce.'
6
Sindicato, a Honduran union, had intervened in the proceeding. Sociedad was invited to intervene but declined to do so.
7
See generally Comment, 69 Yale L.J. 498, 506—511 (1960); Boczek, Flags of Convenience (1962).
8
E.g., Dalzell Towing Co., 137 N.L.R.B. No. 48, 50 L.R.R.M. 1164 (1962).
9
Our conclusion does not foreclose such a procedure in different contexts, such as the Jones Act, 46 U.S.C. § 688, where the pervasive regulation of the internal order of a ship may not be present. As regards application of the Jones Act to maritime torts on foreign ships, however, the Court has stated that '(p)erhaps the most venerable and universal rule of maritime law relevant to our problem is that which gives cardinal importance to the law of the flag.' Lauritzen v. Larsen, 345 U.S. 571, 584, 73 S.Ct. 921, 929, 97 L.Ed. 1254 (1953); see Romero v. International Terminal Operating Co., 358 U.S. 354, 381—384, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959); Boczek, op. cit., supra, note 7, at 178—180.
10
In 1959 Congress enacted § 14(c)(1) of the Act, 29 U.S.C. (Supp. II) § 164(c)(1), granting the Board discretionary power to decline jurisdiction over labor disputes with insubstantial effects, with a proviso that:
'* * * the Board shall not decline to assert jurisdiction over any labor dispute over which it would assert jurisdiction under the standards prevailing upon August 1, 1959.'
It is argued that the Board would have exerted jurisdiction over Empresa's vessels and crewmen under those 'standards,' as illustrated by its action in Peninsular & Occidental Steamship Co., 120 N.L.R.B. 1097 (1958), about which case the Congress is presumed to have known. Aside from the fact that Congress presumably was aware also of our decision in Benz, the argument is unconvincing. Nothing in the language or the legislative history of the 1959 amendments to the Act clearly indicates a congressional intent to apply the Act to foreign-flag ships and their crews. The 'standards' to which § 14(c)(1) refers are the minimum dollar amounts established by the Board for jurisdictional purposes, and the problem to which § 14(c) is addressed is the 'no-man's land' created by Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601 (1957). See 25 N.L.R.B.Ann.Rep. 18—19 (1960); II Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 (1959), 1153 1154, 1720; 105 Cong.Rec. 6548—6549, 18134.
11
State Department regulations provide that a foreign vessel includes 'any vessel regardless of ownership, which is documented under the laws of a foreign country.' 22 CFR § 81.1(f).
12
Article X of the Treaty of Friendship, Commerce and Consular Rights between Honduras and the United States, 45 Stat. 2618 (1927), provides that merchant vessels flying the flags and having the papers of either country 'shall, both within the territorial waters of the other High Contracting Party and on the high seas, be deemed to be the vessels of the Party whose flag is flown.'
1
(This opinion applies also to No. 33, Incres S.S. Co. v. International Maritime Workers' Union, 372 U.S. 24, 83 S.Ct. 611.)
2
It is agreed that Article XXII of the Treaty of Friendship, Commerce, and Consular Rights between the United States and Honduras, 45 Stat. 2618 (1927), and Article X of the Convention with Liberia of October 7, 1938, 54 Stat. 1751, 1756, grant those nations exclusive jurisdiction over the matters here involved.
| 67
|
372 U.S. 1
83 S.Ct. 614
9 L.Ed.2d 541
NEW JERSEY et al., Appellants,v.NEW YORK, SUSQUEHANNA AND WESTERN RAILROAD COMPANY.
No. 104.
Argued Dec. 11, 1962.
Decided Feb. 18, 1963.
William Gural, Hillside, N.J., for appellants.
Vincent P. Biunno, Newark, N.J., for appellee.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
This direct appeal from a three-judge District Court involves the jurisdiction of the Interstate Commerce Commission to permit discontinuance of trains operated by the appellee railroad wholly within the State of New Jersey. At issue is whether the discontinuance procedures of § 13a(1) or § 13a(2) of the Interstate Commerce Act (72 Stat. 571—572, 49 U.S.C. §§ 13a(1), 13a(2)) are to be followed.
2
Appellee, New York, Susquehanna & Western Railroad Co., operates passenger trains between Butler, New Jersey, and Susquehanna Transfer, in North Bergen, New Jersey. Connecting buses, carrying only train passengers, run between North Bergen and the Port of New York Authority Bus Terminal in Manhattan. The buses are owned and operated by Public Service Coordinated Transport, a New Jersey corporation unaffiliated but under contract with appellee. According to appellee, nearly 90% of its passengers travel to and from New York.
3
As recently as 1956, appellee operated 30 passenger trains eastbound and 30 westbound on weekdays and 17 or 18 in each direction on weekends. Because of financial difficulties and continued losses on passenger train operations, appellee has, with the permission of the Public Utilities Commission of New Jersey, reduced the number of trains from time to time so that it now operates only three trains in each direction on weekdays and none on weekends. The last reduction was authorized on July 14, 1960.
4
On December 30, 1960, appellee filed a notice with the Interstate Commerce Commission stating that it would discontinue all passenger train service on January 30, 1961. On January 9, 1961, appellants petitioned the Interstate Commerce Commission to dismiss the case without prejudice. Since appellee operated trains solely in New Jersey, appellants argued that the case was not, in the first instance, within the jurisdiction of the Commission. The Commission agreed and, on January 18, dismissed the notice for want of jurisdiction. Appellee then brought this suit in the United States District Court for the District of New Jersey to challenge the dismissal. A three-judge court was designated in accordance with 28 U.S.C. §§ 2321—2325 and 2284. The court, one judge dissenting, set aside the Commission's order. 200 F.Supp. 860. New Jersey appealed directly to this Court under 28 U.S.C. § 1253, and we noted probable jurisdiction. 370 U.S. 933, 82 S.Ct. 1584, 8 L.Ed.2d 804.
5
The question presented is whether the procedure for discontinuing trains set forth in § 13a(1) of the Interstate Commerce Act is available to the appellee railroad as the court below held, or whether it must follow that set forth in § 13a(2) of the Act. Section 13a(1) relates to 'the discontinuance * * * of the operation or service of any train or ferry operating from a point in one State to a point in any other State.' A railroad proceeding under this section must first file notices of the proposed discontinuance with the Interstate Commerce Commission, with the Governors of the States in which the train operates, and in every station served by the train. After 30 days, the railroad may discontinue the train unless the Commission has decided to investigate the discontinuance. The Commission may require the railroad to continue operations, pending its investigation, for an additional four months. It also may, at the conclusion of the investigation, order service continued for another year, if it is 'required by public convenience and necessity' and if it 'will not unduly burden interstate * * * commerce.'
6
Section 13a(2) governs 'the discontinuance * * * of the operation or service of any train or ferry operated wholly within the boundaries of a single State.' Under this section, the railroad is first required to seek relief from the appropriate state agency. Only after the state agency has denied the application of discontinuance, or has let 120 days elapse from the time the application was filed without acting, can the railroad seek authority from the Interstate Commerce Commission to discontinue the train. The Commission 'may grant such authority only after full hearing.'
7
A comparison of the language of § 13a(1), which applies to 'any train * * * operating from a point in one State to a point in any other State' (italics supplied), and of § 13a(2), which applies to 'any train * * * operated wholly within the boundaries of a single State' (italics supplied), makes it clear that the statute, on its face, requires appellee to proceed under the latter section. Appellee's trains do not run 'from a point in one State to a point in any other State.' That appellee's passengers, by other conveyances, cross a state line does not alter the conclusion; the statute speaks not of interstate commerce but of the physical limits of a train's or ferry's operations.1
8
Any doubt about this construction of the statute is dispelled by an examination of its legislative history. Section 13a was enacted by Congress as part of the Transportation Act of 1958. The legislative history of that Act reveals Congress' concern about the financial plight of railroads, attributable in part to the losses sustained in operating passenger trains. To discontinue these trains before the enactment of § 13a, the railroads were required in all cases to seek authority from each of the States served. See 104 Cong.Rec. 10842—10843, 10851. Without concurrence of all the States affected, the railroad might be compelled to continue operations despite serious losses. The Interstate Commerce Commission was able to give only partial relief. It could authorize the total abandonment of a line of railroad under § 1(18) of the Act, even if the line was wholly within the boundaries of one State. Colorado v. United States, 271 U.S. 153, 46 S.Ct. 452, 70 L.Ed. 878. However the Commission could not permit partial discontinuance of service over a line of railroad, whether the line crossed state boundaries or not. Board of Public Utility Com'rs of New Jersey v. United States, D.C., 158 F.Supp. 98, probable jurisdiction noted, New York Cent. R. Co. v. Board of Public Utility Com'rs of N.J., 357 U.S. 917, 78 S.Ct. 1358, 2 L.Ed.2d 1361, dismissed as moot, 359 U.S. 982, 79 S.Ct. 939, 3 L.Ed.2d 932.2 See Palmer v. Massachusetts, 308 U.S. 79, 84—85, 60 S.Ct. 34, 84 L.Ed. 93. Thus the Commission could not permit discontinuance of passenger operations while the railroad continued to carry freight over the same line.3
9
As initially proposed in the Senate, the Interstate Commerce Commission would have had power under § 13a to permit discontinuance 'of the operation or service of any train or ferry engaged in the transportation of passengers or property in interstate, foreign and intrastate commerce * * * or of the operation or service of any station, depot or other facility.' S. 3778, 85th Cong., 2d Sess. Opposition to the bill focused upon the reduction of state powers to control local train operations. E.g., 104 Cong.Rec. 10850. A compromise amendment in the Senate changed § 13a so that the Commission's power would extend only to 'any train or ferry engaged in the transportation of passengers or property in interstate or foreign commerce.' 104 Cong.Rec. 10862 10866. Reference to intrastate transportation was eliminated. And as finally reported out of conference, the Act was in its present form. The Interstate Commerce Commission's jurisdiction was limited, in the first instance, to the 'discontinuance * * * of the operation or service of any train or ferry operating from a point in one State to a point in any other State.'
10
Senator Smathers, the Chairman of the Surface Transportation Subcommittee of the Senate Interstate and Foreign Commerce Committee, said, in describing the Senate compromise amendment, that:
11
'any train which operates within a State, whose origin and destination are within the State—that is any train with intrastate characteristics—together with the facilities used by the train, shall be completely under the authority of the State public utilities commission.' 104 Cong.Rec. 10852.4
12
Congressman Harris, Chairman of the House Interstate and Foreign Commerce Committee, similarly interpreted the more restrictive House version, H.R. 12832.5 He said the Interstate Commerce Commission was limited to authorizing the discontinuance
13
'of a train or ferry on a line of railroad not located wholly within a single State. This limitation is contained in the bill being reported because the committee feels that the record at this time does not support the broader change in venue, requested by the railroads, which would have covered Interstate Commerce Commission jurisdiction also over operations more local in character, such as those of a branch line or other line of railroad located solely within one State.' 104 Cong.Rec. 12533.
14
Congressman Harris repeatedly stated that even if the train in question operated on an interstate line, the state regulatory agency would have jurisdiction if the train started and ended within the State. 104 Cong.Rec. 12530, 12542.
15
Finally, Senator Smathers' comments, made after the Senate-House Conference changed the bill to its present form, should be noted. He said:
16
'we protected the right of the States * * * by leaving to the State regulatory agencies the right to regulate and have a final decision with respect to the discontinuance of train service which originated and ended within one particular State, except when it could be established that intrastate service was a burden on interstate commerce.
17
'In addition, the Senate receded on a provision under which we had given the Interstate Commerce Commission jurisdiction also to discontinue service in depots, terminals, and other such facilities in connection with the operation of railroads. We left that matter in the hands of the State regulatory agencies.' 104 Cong.Rec. 15528.
18
It is clear to us from this history, as it was to the Commission, that Congress intended to, and did, leave '(j)urisdiction over trains operating wholly within a single State * * * with State regulatory commissions.'
19
The court below disregarded the plain words of the statute and what we believe is the pertinent legislative history and rested its decision on the ground that to apply § 13a(1) so restrictively would 'thwart the apparent purpose of the Congress in adopting it.' 200 F.Supp., at 864. That purpose was, as the court below observed, remedial. But it was conditioned by a desire to protect state jurisdiction over local operations. To ignore this we conclude was error. Therefore the judgment of the court below must be reversed.
20
Reversed.
1
Apparently one ground for the decision below was the belief (1) that 'operation or service' of a train included bus service or (2) that 'train' included a bus extension. As to the first, it should be noted that the Interstate Commerce Commission has decided, in interpreting § 1(18) of the Act, that appellee's bus service to New York is not part of a 'line of railroad' and that appellee need not obtain a certificate of public convenience and necessity before providing the bus transportation. New York, S. & W.R. Co. Common Carrier Application, 46 M.C.C. 713, 725. Admittedly 'line of railroad' is a different term from 'operation or service of any train.' However we should be loath to suggest that a train could operate where no line of railroad existed.
As to the second alternative, it is answer enough to note that the statute reads 'any train or ferry.' No mention of 'bus' is made.
2
The railroads appealing to this Court did not take issue with the Interstate Commerce Commission decisions holding that the Commission lacked power to authorize partial discontinuances. They argued that instead of partially discontinuing service they were abandoning a line of railroad.
3
In the Board of Public Utility Comm'rs of New Jersey case the three-judge District Court held that the Interstate Commerce Commission could not allow the New York Central Railroad to discontinue its passenger ferries across the Hudson River, while continuing to operate ferries for freight, if the ferries were all part of the same line of railroad. (Under § 1(3) of the Act, the term 'railroad' includes 'ferries used by or operated in connection with any railroad.') After Congress passed § 13a, the New York Central Railroad, among others, succeeded in eliminating its Hudson River passenger ferries. See New Jersey v. United States, D.C., 168 F.Supp. 324, aff'd per curiam, 359 U.S. 27, 49 S.Ct. 603, 3 L.Ed.2d 625. In fact, the New York Central Railroad claimed that its inability to discontinue the passenger ferries was the reason Congress enacted § 13a. 168 F.Supp., at 337, n. 1.
4
Apparently those who were concerned with the protection of the rights of the States were not satisfied with the compromise amendment, perhaps because it retained the phrase 'engaged in the transportation of passengers or property in interstate * * * commerce.' In any event, they were successful in obtaining the omission of any reference to transportation in interstate commerce, since the Act as passed limited Interstate Commerce Commission jurisdiction, in the first instance, to the discontinuance of 'any train * * * operating from a point in one State to a point in any other State.'
5
H.R. 12832 provided that: 'this section (§ 13a) shall not apply to the operations of or services performed by any carrier by railroad on a line of railroad located wholly within a single State.' 104 Cong.Rec. 12547. Also, the House bill eliminated the Interstate Commerce Commission's jurisdiction over discontinuance of stations, depots and other facilities, leaving the state regulatory agencies' power untouched. This change, embodied in the Act, is additional evidence of Congress' intent to leave regulation of local operations to the States.
| 78
|
372 U.S. 24
83 S.Ct. 611
9 L.Ed.2d 557
INCRES STEAMSHIP COMPANY, Ltd., Petitioner,v.INTERNATIONAL MARITIME WORKERS UNION and Shannon J. Wall et al.
No. 33.
Argued Dec. 12, 1962.
Decided Feb. 18, 1963.
Breck P. McAllister, New York City, for petitioner.
H. Howard Ostrin, New York City, for respondents.
Mr. Justice CLARK delivered the opinion of the Court.
1
The basic issue in this case, the application of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 541, 29 U.S.C. § 151 et seq., is decided this day in McCulloch v. Sociedad Nacional, 372 U.S. 10, 83 S.Ct. 671. In view of factual differences and procedural dissimilarity from that case, however, we find it appropriate to write briefly.
2
The petitioner, Incres Steamship Company, Ltd., is a Liberian corporation which is wholly owned by Italian nationals. It operates two Liberian-registered passenger ships, the Nassau and the Victoria, which make regularly scheduled cruises between New York City and various Caribbean ports for seven months each year. In addition, annual cruises are made to Italy, where the vessels undergo repairs and the crews take their leaves. The crews of both vessels are nonresident aliens, most of whom are Italians, and they are recruited and hired in Italy, where they sign Liberian articles.
3
Incres maintains its principal office in London, and it has no place of business in Liberia. It shares an office in New York City with Incres Line Agency, Inc., a New York corporation which is controlled by Incres and acts as agent for its cruise business. The president of Incres, an Italian national, who is a part-time New York resident, is also an unpaid officer and director of Incres Line Agency. He conducts business of Incres from the Incres Line Agency office when he is in New York.
4
The respondent, International Maritime Workers Union, is an American labor organization formed by two other American unions for the primary purpose of organizing foreign seamen on foreignflag ships. In February of 1960 it began a campaign to organize the seamen on Incres' vessels. On May 13, 1960, as part of this campaign, IMWU began picketing at the pier where the Nassau was docked. Two days later the Victoria, while anchored offshore, was picketed by IMWU representatives in a launch. The IMWU representatives persuaded some crew members of the Nassau not to perform their duties, and longshoremen and tugboat crews were temporarily persuaded to refrain from servicing both vessels. As a result of this activity, several cruises were canceled.
5
On May 16, 1960, Incres brought this action for damages and injunctive relief against IMWU. On the same day IMWU filed unfair labor practice charges against Incres, on which the National Labor Relations Board has conducted an investigation but has not rendered a decision. The Supreme Court of New York County granted a temporary and, after trial, a permanent injunction enjoining the union from picketing Incres' vessels or from encouraging crew members to refrain from working on those vessels. The Appellate Division affirmed. 11 A.D.2d 177, 202 N.Y.S.2d 692. The New York Court of Appeals, by a divided court, reversed. 10 N.Y.2d 218, 219 N.Y.S.2d 21, 176 N.E.2d 719. Applying our decision in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), it held that the state courts had no jurisdiction until the Board refused to act in the dispute, since it was 'surely arguable' that the Board would exercise jurisdiction under the contacts theory as applied in West India Fruit & Steamship Co., 130 N.L.R.B. 343 (1961), and other Board decisions. We granted certiorari, 368 U.S. 924, 82 S.Ct. 367, 7 L.Ed.2d 189, and the case was argued with McCulloch v. Sociedad Nacional, supra, and its companion cases.
6
We held today in Sociedad Nacional that the Act does not apply to foreign-registered ships employing alien seamen. The holding and reasoning in that case are equally applicable to the maritime operations here, leading to the conclusion that the Act does not apply. It is true that our decision in Garmon, supra, as applied in Marine Engineers Beneficial Assn. v. Interlake S.S. Co., 370 U.S. 173, 82 S.Ct. 1237, 8 L.Ed.2d 418 (1962), results in pre-emption of state court jurisdiction if a dispute is arguably within the jurisdiction of the Board. But, although it was arguable that the Board's jurisdiction extended to this dispute at the time of the New York Court of Appeals' decision, our decision in Sociedad Nacional clearly negates such jurisdiction now. In that case we were immediately concerned with the Board's jurisdiction to direct an election, holding that the Act had no application to the operations of foreign flagships employing alien crews. Therefore, no different result as to Board jurisdiction follows from the fact that our immediate concern here is the picketing of a foreign-flag ship by an American union. See Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957). The Board's jurisdiction to prevent unfair labor practices, like its jurisdiction to direct elections, is based upon circumstances 'affecting commerce,' and we have concluded that maritime operations of foreign-flag ships employing alien seamen are not in 'commerce' within the meaning of § 2(6), 29 U.S.C. § 152(6).
7
No different result is suggested by our decision in Local Union No. 25 of International Brotherhood of Teamsters v. New York, N.H. & H.R. Co., 350 U.S. 155, 76 S.Ct. 227, 100 L.Ed. 166 (1956). There we held that a railroad, subject to the Railway Labor Act and thus exempt from the definition of 'employer' in the National Labor Relations Act, was not thereby precluded from 'seeking the aid of the Board in circumstances unrelated to its employer-employee relations.' Id., at 159, 76 S.Ct. at 230. Therefore, in a situation where a union 'was in no way concerned with (the railroad's) labor policy,' id., at 160, 76 S.Ct. at 230, but sought to prevent motor carrier employees from delivering truck-trailers to the railroad for 'piggy-back' carriage, we held that state court jurisdiction was pre-empted by the Act. Here, of course, the IMWU's activities are directly related to Incres' employer-employee relationships, since the very purpose of those activities was the organization of alien seamen on Incres' vessels.
8
For the reasons stated, the judgment of the Court of Appeals is vacated and the cause is remanded for further proceedings consistent with this opinion and that in Sociedad Nacional.
9
It is so ordered.
10
Judgment of the New York Court of Appeals vacated and cause remanded.
11
Mr. Justice GOLDBERG took no part in the consideration or decision of this case.
| 910
|
372 U.S. 58
83 S.Ct. 631
9 L.Ed.2d 584
BANTAM BOOKS, INC., et al., Appellants,v.Joseph A. SULLIVAN et al.
No. 118.
Argued Dec. 3 and 4, 1962.
Decided Feb. 18, 1963.
[Syllabus from pages 58-59 intentionally omitted]
Horace S. Manges, New York City, for appellants.
J. Joseph Nugent, Providence, R.I., for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The Rhode Island Legislature created the 'Rhode Island Commission to Encourage Morality in Youth,' whose members and Executive Secretary are the appellees herein, and gave the Commission inter alia '* * * the duty * * * to educate the public concerning any book, picture, pamphlet, ballad, printed paper or other thing containing obscene, indecent or impure language, or manifestly tending to the corruption of the youth as defined in section 13, 47, 48 and 49 of chapter 610 of the general laws, as amended, and to investigate and recommend the prosecution of all violations of said sections * * *.'1 The appellants brought this action in the Superior Court of Rhode Island (1) to declare the law creating the Commission in violation of the First and Fourteenth Amendments, and (2) to declare unconstitutional and enjoin the acts and practices of the appellees thereunder. The Superior Court declined to declare the law creating the Commission unconstitutional on its face but granted the appellants an injunction against the acts and practices of the appellees in performance of their duties. The Supreme Court of Rhode Island affirmed the Superior Court with respect to appellants' first prayer but reversed the grant of injunctive relief. R.I., 176 A.2d 393 (1961).2 Appellants brought this appeal and we noted probable jurisdiction, 370 U.S. 933, 82 S.Ct. 1587, 8 L.Ed.2d 805.3
2
Appellants are four New York publishers of paperback books which have for sometime been widely distributed in Rhode Island. Max Silverstein & Sons is the exclusive wholesale distributor of appellants' publications throughout most of the State. The Commission's practice has been to notify a distributor on official Commission stationery that certain designated books or magazines distributed by him had been reviewed by the Commission and had been declared by a majority of its members to be objectionable for sale, distribution or display to youths under 18 years of age. Silverstein had received at least 35 such notices at the time this suit was brought. Among the paperback books listed by the Commission as 'objectionable' were one published by appellant Dell Publishing Co., Inc., and another published by appellant Bantam Books, Inc.4
3
The typical notice to Silverstein either solicited or thanked Silverstein, in advance, for his 'cooperation' with the Commission, usually reminding Silverstein of the Commission's duty to recommend to the Attorney General prosecution of purveyors of obscenity.5 Copies of the lists of 'objectionable' publications were circulated to local police departments, and Silverstein was so informed in the notices.
4
Silverstein's reaction on receipt of a notice was to take steps to stop further circulation of copies of the listed publications. He would not fill pending orders for such publications and would refuse new orders. He instructed his field men to visit his retailers and to pick up all unsold copies, and would then promptly return them to the publishers. A local police officer usually visited Silverstein shortly after Silverstein's receipt of a notice to learn what action he had taken. Silverstein was usually able to inform the officer that a specified number of the total of copies received from a publisher had been returned. According to the testimony, Silverstein acted as he did on receipt of the notice 'rather than face the possibility of some sort of a court action against ourselves, as well as the people that we supply.' His 'cooperation' was given to avoid becoming involved in a 'court proceeding' with a 'duly authorized organization.'
5
The Superior Court made fact findings and the following two, supported by the evidence and not rejected by the Supreme Court of Rhode Island, are particularly relevant:
6
'8. The effect of the said notices (those received by Silverstein, including the two listing publications of appellants) were (sic) clearly to intimidate the various book and magazine wholesale distributors and retailers and to cause them, by reason of such intimidation and threat of prosecution, (a) to refuse to take new orders for the proscribed publications, (b) to cease selling any of the copies on hand, (c) to withdraw from retailers all unsold copies, and (d) to return all unsold copies to the publishers.
7
'9. The activities of the Respondents (appellees here) have resulted in the suppression of the sale and circulation of the books listed in said notices * * *.'
8
In addition to these findings it should be noted that the Attorney General of Rhode Island conceded on oral argument in this Court that the books listed in the notices included several that were not obscene within this Court's definition of the term.
9
Appellants argue that the Commission's activities under Resolution 73, as amended, amount to a scheme of governmental censorship devoid of the constitutionally required safeguards for state regulation of obscenity, and thus abridge First Amendment liberties, protected by the Fourteenth Amendment from infringement by the States. We agree that the activities of the Commission are unconstitutional and therefore reverse the Rhode Island court's judgment and remand the case for further proceedings not inconsistent with this opinion.6
10
We held in Alberts v. State of California, decided with Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498, that 'obscenity is not within the area of constitutionally protected speech or press' and may therefore be regulated by the States. But this principle cannot be stated without an important qualification:
11
* * * (I)n 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.' (354 U.S. at 488, 77 S.Ct. at 1311) * * * It follows that, under the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity * * * without regard to the possible consequences for constitutionally protected speech.' Marcus v. Search Warrant, 367 U.S. 717, 730—731, 81 S.Ct. 1708, 1715, 1716, 6 L.Ed.2d 1127.
12
Thus, the Fourteenth Amendment requires that regulation by the States of obscenity conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line. It is characteristic of the freedoms of expression in general that they are vulnerable to gravely damaging yet barely visible encroachments. Our insistence that regulations of obscenity scrupulously embody the most rigorous procedural safeguards, Smith v. People of the State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205; Marcus v. Search Warrant, supra, is therefore but a special instance of the larger principle that the freedoms of expression must be ringed about with adequate bulwarks. See, e.g., Thornhill v. State of Alabama, 310, U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Winters v. People of the State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328. '(T)he line between speech unconditionally guaranteed and speech which may legitimately be regulated * * * 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.
13
But is it contended, these salutary principles have no application to the activities of the Rhode Island Commission because it does not regulate or suppress obscenity but simply exhorts booksellers and advises them of their legal rights. This contention, premised on the Commission's want of power to apply formal legal sanctions, is untenable. It is true that appellants' books have not been seized or banned by the State, and that no one has been prosecuted for their possession or sale. But though the Commission is limited to informal sanctions—the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation—the record amply demonstrates that the Commission deliberately set about to achieve the suppression of publications deemed 'objectionable' and succeeded in its aim.7 We are not the first court to look through forms to the substance and recognize that informal censorship may sufficiently inhibit the circulation of publications to warrant injunctive relief.8
14
It is not as if this were not regulation by the State of Rhode Island. The acts and practices of the members and Executive Secretary of the Commission disclosed on this record were performed under color of state law and so constituted acts of the State within the meaning of the Fourteenth Amendment. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714. Cf. Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152. These acts and practices directly and designedly stopped the circulation of publications in many parts of Rhode Island. It is true, as noted by the Supreme Court of Rhode Island, that Silverstein was 'free' to ignore the Commission's notices, in the sense that his refusal to 'cooperate' would have violated no law. But it was found as a fact—and the finding, being amply supported by the record, binds us—that Silverstein's compliance with the Commission's directives was not voluntary. People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around, and Silverstein's reaction, according to uncontroverted testimony, was no exception to this general rule. The Commission's notices, phrased virtually as orders, reasonably understood to be such by the distributor, invariably followed up by police visitations, in fact stopped the circulation of the listed publications ex proprio vigore. It would be naive to credit the State's assertion that these blacklists are in the nature of mere legal advice, when they plainly serve as instruments of regulation independent of the laws against obscenity.9 Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817.
15
Herein lies the vice of the system. The Commission's operation is a form of effective state regulation superimposed upon the State's criminal regulation of obscenity and making such regulation largely unnecessary. In thus obviating the need to employ criminal sanctions, the State has at the same time eliminated the safeguards of the criminal process. Criminal sanctions may be applied only after a determination of obscenity has been made in a criminal trial hedged about with the procedural safeguards of the criminal process. The Commission's practice is in striking contrast, in that it provides no safeguards whatever against the suppression of nonobscene, and therefore constitutionally protected, matter. It is a form of regulation that creates hazards to protected freedoms markedly greater than those that attend reliance upon the criminal law.
16
What Rhode Island has done, in fact, has been to subject the distribution of publications to a system of prior administrative restraints, since the Commission is not a judicial body and its decisions to list particular publications as objectionable do not follow judicial determinations that such publications may lawfully be banned. Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. See Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; Lovell v. City of Griffin, 303 U.S. 444, 451, 58 S.Ct. 666, 668, 82 L.Ed. 949; Schneider v. State of New Jersey, 308 U.S. 147, 164, 60 S.Ct. 146, 152, 84 L.Ed. 155; Cantwell v. State of Connecticut, 310 U.S. 296, 306, 60 S.Ct. 900, 904, 84 L.Ed. 1213; Niemotko v. State of Maryland, 340 U.S. 268, 273, 71 S.Ct. 325, 328, 95 L.Ed. 267; Kunz v. People of State of New York, 340 U.S. 290, 293, 71 S.Ct. 312, 314, 95 L.Ed. 280; Staub v. City of Baxley, 355 U.S. 313, 321, 78 S.Ct. 277, 281, 2 L.Ed.2d 302. We have tolerated such a system only where it operated under judicial superintendence and assured an almost immediate judicial determination of the validity of the restraint.10 Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469. The system at bar includes no such saving features. On the contrary, its capacity for suppression of constitutionally protected publications is far in excess of that of the typical licensing scheme held constitutionally invalid by this Court. There is no provision whatever for judicial superintendence before notices issue or even for judicial review of the Commission's determinations of objectionableness. The publisher or distributor is not even entitled to notice and hearing before his publications are listed by the Commission as objectionable. Moreover, the Commission's statutory mandate is vague and uninformative, and the Commission has done nothing to make it more precise. Publications are listed as 'objectionable' without further elucidation. The distributor is left to speculate whether the Commission considers this publication obscene or simply harmful to juvenile morality. For the Commission's domain is the whole of youthful morals. Finally, we not that although the Commission's supposed concern is limited to youthful readers, the 'cooperation' it seeks from distributors invariably entails the complete suppression of the listed publications; adult readers are equally deprived of the opportunity to purchase the publications in the State. Cf. Butler v. State of Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412.
17
The procedures of the Commission are radically deficient. They fall far short of the constitutional requirements of governmental regulation of obscenity. We hold that the system of informal censorship disclosed by this record violates the Fourteenth Amendment.
18
In holding that the activities disclosed on this record are constitutionally proscribed, we do not mean to suggest that private consultation between law enforcement officers and distributors prior to the institution of a judicial proceeding can never be constitutionally permissible. We do not hold that law enforcement officers must renounce all informal contacts with persons suspected of violating valid laws prohibiting obscenity. Where such consultation is genuinely undertaken with the purpose of aiding the distributor to comply with such laws and avoid prosecution under them, it need not retard the full enjoyment of First Amendment freedoms. But that is not this case. The appellees are not law enforcement officers; they do not pretend that they are qualified to give or that they attempt to give distributors only fair legal advice. Their conduct as disclosed by this record shows plainly that they went for beyond advising the distributors of their legal rights and liabilities. Their operation was in fact a scheme of state censorship effectuated by extralegal sanctions; they acted as an agency not to advise but to suppress.
19
Reversed and remanded.
20
Mr. Justice BLACK concurs in the result.
21
Mr. Justice DOUGLAS, concurring.
22
While I join the opinion of the Court, I adhere to the views I expressed in Roth v. United States, 354 U.S. 476, 508—514, 77 S.Ct. 1304, 1321—1324, 1 L.Ed.2d 1498, respecting the very narrow scope of governmental authority to suppress publications on the grounds of obscenity. Yet as my Brother BRENNAN makes clear, the vice of Rhode Island's system is apparent whatever one's view of the constitutional status of 'obscene' literature. This is censorship in the raw; and in my view the censor and First Amendment rights are incompatible. If a valid law has been violated, authors and publishers and vendors can be made to account. But they would then have on their side all the procedural safeguards of the Bill of Rights, including trial by jury. From the viewpoint of the State that is a more cumbersome procedure, action on the majority vote of the censors being far easier. But the Bill of Rights was designed to fence in the Government and make its intrusions on liberty difficult and its interference with freedom of expression well-nigh impossible.
23
All nations have tried censorship and only a few have rejected it. Its abuses mount high. Today Iran censors news stories in such a way as to make false or misleading some reports of reputable news agencies. For the Iranian who writes the stories and lives in Teheran goes to jail if he tells the truth. Thus censorship in Teheran has as powerful extralegal sanctions as censorship in Providence.
24
The Providence regime is productive of capricious action. A five-to-four vote makes a book 'obscene.' The wrong is compounded when the issue, though closely balanced in the minds of sophisticated men, is resolved against freedom of expression and on the side of censorship. Judges, to be sure, often disagree as to the definition of obscenity. But an established administrative system that bans book after book, even though they muster four votes out of nine, makes freedom of expression much more precarious than it would be if unanimity were required. This underlines my Brother BRENNAN'S observation that the Providence regime 'provides no safeguards whatever against the suppression of nonobscene, and therefore constitutionally protected, matter.' Doubts are resolved against, rather than for, freedom of expression.
25
The evils of unreviewable administrative action of this character are as ancient as dictators. George Kennan, Siberia and the Exile System (U. of Chi.1958) p. 60, gives insight into it:
26
'Mr. Boro din, another Russian author and a well-known contributor to the Russian magazine Annals of the Fatherland, was banished to the territory of Yaku tsk on account of the alleged 'dangerous' and 'pernicious' character of a certain manuscript found in his house by the police during a search. This manuscript was a spare copy of an article upon the economic condition of the province of Via tka, which Mr. Boro din had written and sent to the above-named magazine, but which, up to that time, had not been published. The author went to Eastern Siberia in a convict's gray overcoat with a yellow ace of diamonds on his back, and three or four months after his arrival in Yaku tsk he had the pleasure of reading in the Annals of the Fatherland the very same article for which he had been exiled. The Minister of the Interior had sent him to Siberia merely for having in his possession what the police called a 'dangerous' and 'pernicious' manuscript, and then the St. Petersburg committee of censorship had certified that another copy of that same manuscript was perfectly harmless, and had allowed it to be published, without the change of a line, in one of the most popular and widely circulated magazines in the empire.'
27
Thus under the Czars an all-powerful elite condemned to the Siberia of that day an author whom a minority applauded. Administrative fiat is as dangerous today as it was then.
28
Mr. Justice CLARK, concurring in the result.
29
As I read the opinion of the Court, it does much fine talking about freedom of expression and much condemning of the Commission's overzealous efforts to implement the State's obscenity laws for the protection of Rhode Island's youth but, as if shearing a hog, comes up with little wool. In short, it creates the proverbial tempest in a teapot over a number of notices sent out by the Commission asking the cooperation of magazine distributors in preventing the sale of obscene literature to juveniles. The storm was brewed from certain inept phrases in the notices wherein the Commission assumed the prerogative of issuing an 'order' to the police that certain publications which it deemed obscene are 'not to be sold, distributed or displayed to youths under eighteen years of age' and stated that '(t)he Attorney General will act for us in case of non-compliance.' But after all this expostulation the Court, being unable to strike down Rhode Island's statute, see Alberts v. State of California, 354 U.S. 476. 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), drops a demolition bomb on 'the Commission's practice' without clearly indicating what might be salvaged from the wreckage. The Court in condemning the Commission's practice owes Rhode Island the duty of articulating the standards which must be met, lest the Rhode Island Supreme Court be left at sea as to the appropriate disposition on remand.
30
In my view the Court should simply direct the Commission to abandon its delusions of grandeur and leave the issuance of 'orders' to enforcement officials and 'the State's criminal regulation of obscenity' to the prosecutors, who can substitute prosecution for 'thinly veiled threats' in appropriate cases. See Alberts v. State of California, supra. As I read the opinion this is the extent of the limitations contemplated by the Court, leaving the Commission free, as my Brother HARLAN indicates, to publicize its findings as to the obscene character of any publication; to solicit the support of the public in preventing obscene publications from reaching juveniles; to furnish its findings to publishers, distributors and retailers of such publications and to law enforcement officials; and, finally, to seek the aid of such officials in prosecuting offenders of the State's obscenity laws. This Court has long recognized that 'the primary requirements of decency may be enforced against obscene publications.' Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931); see Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957). Certainly in the face of rising juvenile crime and lowering youth morality the State is empowered consistent with the Constitution to use the above procedures in attempting to dispel the defilement of its youth by obscene publications. With this understanding of the Court's holding I join in its judgment, believing that the limitations as outlined would have little bearing on the efficacy of Rhode Island's law.
31
Mr. Justice HARLAN, dissenting.
32
The Court's opinion fails to give due consideration to what I regard as the central issue in this case—the accommodation that must be made between Rhode Island's concern with the problem of juvenile delinquency and the right of freedom of expression assured by the Fourteenth Amendment.
33
Three reasons, as I understand the Court's opinion, are given for holding the particular procedures adopted by the Rhode Island Commission under this statute, though not the statute itself, unconstitutional: (1) the Commission's activities, carried on under color of state law, amount to a scheme of governmental censorship; (2) its procedures lack adequate safeguards to protect nonobscene material against suppression; and (3) the group's operations in the field of youth morality may entail depriving the adult public of access to constitutionally protected material.
34
In my opinion, none of these reasons is of overriding weight in the context of what is obviously not an effort by the State to obstruct free expression but an attempt to cope with a most baffling social problem.
I.
35
This Rhode Island Commission was formed for the laudable purpose of combatting juvenile delinquency. While there is as yet no consensus of scientific opinion on the causal relationship between youthful reading or viewing of 'the obscene' and delinquent behavior, see Green, Obscenity, Censorship, and Juvenile Delinquency, 14 U. of Toronto L.J. 229 (1962), Rhode Island's approach to the problem is not without respectable support, see S.Rep.No.2381, 84th Cong., 2d Sess. (1956); Kefauver, Obscene and Pornographic Literature and Juvenile Delinquency, 24 Fed.Prob. No. 4, p. 3 (Dec. 1960). The States should have a wide range of choice in dealing with such problems, Alberts v. State of California, decided with Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (separate opinion of the writer, at 500—502), and this Court should not interfere with state legislative judgments on them except upon the clearest showing of unconstitutionality.
36
I can find nothing in this record that justifies the view that Rhode Island has attempted to deal with this problem in an irresponsible way. I agree with the Court that the tenor of some of the Commission's letters and reports is subject to serious criticism, carrying as they do an air of authority which that body does not possess and conveying an impression of consequences which by no means may follow from noncooperation with the Commission. But these are things which could surely be cured by a word to the wise. They furnish no occasion for today's opaque pronouncements which leave the Commission in the dark as to the permissible constitutional scope of its future activities.
37
Given the validity of state obscenity laws, Alberts v. State of California, supra, I think the Commission is constitutionally entitled (1) to express its views on the character of any published reading or other material; (2) to endeavor to enlist the support of law enforcement authorities, or the cooperation of publishers and distributors, with respect to any material the Commission deems obscene; and (3) to notify publishers, distributors, and members of the public with respect to its activities in these regards; but that it must take care to refrain from the kind of overbearing utterances already referred to and others that might tend to give any person an erroneous impression as to either the extent of the Commission's authority or the consequences of a failure to heed its warnings. Since the decision of the Court does not require reinstatement of the broad injunction issued by the trial court,1 and since the majority's opinion rests on the invalidity of the particular procedures the Commission has pursued, I find nothing in that opinion denying the Commission the right to conduct the activities, just enumerated, which I believe it is constitutionally entitled to carry on.
II.
38
It is said that the Rhode Island procedures lack adequate safeguards against the suppression of the non-obscene, in that the Commission may pronounce publications obscene without any prior judicial determination or review. But the Commission's pronouncement in any given instance is not self-executing. Any affected distributor or publisher wishing to stand his ground on a particular publication may test the Commission's views by way of a declaratory judgment action2 or suit for injunctive relief or by simply refusing to accept the Commission's opinion and awaiting criminal prosecution in respect of the questioned work.
39
That the Constitution requires no more is shown by this Court's decision in Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403. There the petitioner refused to comply with a Chicago ordinance requiring that all motion pictures be examined and licensed by a city official prior to exhibition. It was contended that regardless of the obscenity vel non of any particular picture and the licensing standards employed, this requirement in itself amounted to an unconstitutional prior restraint on free expression. Stating that there is no 'absolute freedom to exhibit, at least once, any and every kind of motion picture,' 365 U.S., at 46, 81 S.Ct., at 393, this Court rejected that contention and remitted the petitioner to a challenge of an application of the city ordinance to specific films. The Court thus refused to countenance a 'broadside attack' on a system of regulation designed to prevent the dissemination of obscene matter.
40
Certainly with respect to a sophisticated publisher or distributor,3 and shorn of embellishing mandatory language, this Commission's advisory condemnation of particular publications does not create as great a danger of restraint on expression as that involved in Times Film, where exhibition of a film without a license was made a crime.4 Nor can such danger be regarded as greater than that involved in the preadjudication impact of the sequestration procedures sustained by this Court in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469. For here the Commission's action is attended by no legal sanctions and leaves distribution of the questioned material entirely undisturbed.
41
This case bears no resemblance to what the Court refused to sanction in Marcus v. Search Warrant of Property, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127. There police officers, pursuant to Missouri procedures, seized in a one-day foray under search warrants some 11,000 copies of 280 publications found at the appellants' various places of business and believed by the officers to be obscene. The state court later found that only 100 out of the 280 publications actually were obscene. In holding 'that Missouri's procedures as applied * * * lacked the safeguards which due process demands to assure nonobscene material the constitutional protection to which it is entitled,' 367 U.S., at 731, 81 S.Ct., at 1716, the Court emphasized the historical connection between the search and seizure power and the stifling of liberty of expression. The Missouri warrants gave the broadest discretion to each executing officer and left to his ad hoc judgment on the spot, with little or no opportunity for discriminating deliberation, which publications should be seized as obscene. Since 'there was no step in the procedure before seizure designed to focus searchingly on the question of obscenity,' 367 U.S., at 732, 81 S.Ct., at 1716, it was to be expected that much of the material seized under these procedures would turn out not to be obscene, as indeed was later found by the state court in that very case.
42
No such hazards to free expression exist in the procedures I regard as permissible in the present case. Of cardinal importance, dissemination of a challenged publication is not physically or legally impeded in any way. Furthermore, the advisory condemnations complained of are the product not of hit-or-miss police action but of a deliberative body whose judgments are limited by standards embraced in the State's general obscenity statute, the constitutionality of which is not questioned in this case.
43
The validity of the foregoing considerations is not, in my opinion, affected by the state court findings that one of appellants' distributors was led to withdraw publications, thought obscene by the Commission, because of fear of criminal prosecution. For this record lacks an element without which those findings are not of controlling constitutional significance in the context of the competing state and individual interests here at stake: there is no showing that Rhode Island has put any roadblocks in the way of any distributor's or publisher's recourse to the courts to test the validity of the Commission's determination respecting any publication, or that the purpose of these procedures was to stifle freedom of expression.
44
It could not well be suggested, as I think the Court concedes, that a prosecutor's announcement that he intended to enforce strictly the obscenity laws or that he would proceed against a particular publication unless withdrawn from circulation amounted to an unconstitutional restraint upon freedom of expression, still less that such a restraint would occur from the mere existence of a criminal obscenity statute. Conceding that the restrictive effect of the Commission's procedures on publishers, and a fortiori on independent distributors, may be greater than in either of those situations, I do not believe that the differences are of constitutional import, in the absence of either of the two factors indicated in the preceding paragraph. The circumstance that places the Commission's permissible procedures on the same constitutional level as the illustrations just given is the fact that in each instance the courts are open to the person affected, and that any material, however questionable, may be freely sponsored, circulated, read, or viewed until judicially condemned.
45
In essence what the Court holds is that these publishers or their distributors need not, with respect to any material challenged by the Commission, vindicate their right to its protection in order to bring the Constitution to their aid. The effect of this holding is to cut into this effort of the State to get at the juvenile delinquency problem, without this Court or any other ever having concretely focused on whether any of the specific material called in question by the Commission is or is not entitled to protection under constitutional standards established by our decisions.5
46
This seems to me to weight the accommodation which should be made between the competing interests that this case presents entirely against the legitimate interests of the State. I believe that the correct course is to refuse to countenance this 'broadside attack' on these state procedures and, with an appropriate caveat as to the character of some of the Commission's past utterances, to remit the appellants to their remedies respecting particular publications challenged by the Commission, as was done in the Times Film case. Putting these publishers and their distributors to the pain of vindicating challenged materials is not to place them under unusual hardship, for as this Court has said in another context, 'Bearing the discomfiture and cost' even of 'a prosecution for crime (though) by an innocent person is one of the painful obligations of citizenship.' Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 541, 84 L.Ed. 783.
III.
47
The Court's final point—that the Commission's activities may result in keeping from the adult public protected material, even though suppressible so far as youth is concerned—requires little additional comment. It is enough to say that such a determination should not be made at large, as has been done here. It should await a case when circumspect judgment can be brought to bear upon particular judicially suppressed publications.
48
Believing that the Commission, once advised of the permissible constitutional scope of its activities, can be counted on to conduct itself accordingly, I would affirm the judgment of the Rhode Island Supreme Court. Cf. United States v. Haley, 371 U.S. 18, 83 S.Ct. 11, 9 L.Ed.2d 1.
1
Resolution No. 73 H 1000, R.I.Acts and Resolves, January Session 1956, 1102—1103. The resolution created a 'commission to encourage morality in youth,' to be composed of nine members appointed by the Governor of the State. The members were to serve for staggered, five-year terms. They were to receive no compensation, but their expenses, as well as the expenses incurred in the operation of the Commission generally, were to be defrayed out of annual appropriations. The original mandate of the Commission was superseded in part by Resolution No. 95 S. 444 R.I.Acts and Resolves, January Session 1959, 880, which reads as follows:
'It shall be the duty of said commission to educate the public concerning any book, picture, pamphlet, ballad, printed paper or other thing containing obscene, indecent or impure language, as defined in chapter 11—31 of the general laws, entitled 'Obscene and objectionable publications and shows,' and to investigate and recommend the prosecution of all violations of said sections, and it shall be the further duty of said commission to combat juvenile delinquency and encourage morality in youth by (a) investigating situations which may cause, be responsible for or give rise to undesirable behavior of juveniles, (b) educate the public as to these causes and (c) recommend legislation, prosecution and/or treatment which would ameliorate or eliminate said causes.'
The Commission's activities are not limited to the circulation of lists of objectionable publications. For example, the annual report of the Commission issued in January 1960, recites in part:
'In September, 1959, because of the many complaints from outraged parents at the type of films being shown at the Rhode Island Drive-Ins and also the lack of teen-age supervision while parked, this Commission initiated and completed a survey on the Drive-In Theatres in the State. High points of the survey note that there are II (2) Drive-in theatres in Rhode Island which operate through summer months and remain open until November and then for week-ends during the winter, providing car-heaters.
'Acting on its power to investigate causes of delinquency, the Commission has met with several state officials for a discussion of juvenile drinking, the myriad and complex causes of delinquency, and legal aspects of the Commission's operations. It also held a special meeting with Rhode Island police and legal officials in September, 1959, for a discussion on the extent of delinquency in Rhode Island and the possible formation of state-wide organization to combat it.'
2
The action was brought pursuant to Title 9, c. 30, Gen.Laws R.I., 1956 ed., as amended (Uniform Declaratory Judgments Act).
3
Our appellate jurisdiction is properly invoked, since the state court judgment sought to be reviewed upheld a state statute against the contention that, on its face and applied, the statute violated the Federal Constitution. 28 U.S.C. § 1257(2). Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239.
4
Peyton Place, by Grace Metalious, published (in paperback edition) by appellant Dell Publishing Co., Inc.; The Bramble Bush, by Charles Mergendahl, published (in paperback edition) by appellant Bantam Books, Inc. Most of the other 106 publications which, as of January 1960, had been listed as objectionable by the Commission were issues of such magazines as 'Playboy,' 'Rogue,' 'Frolic,' and so forth. The Attorney General of Rhode Island described some of the 106 publications as 'horror' comics which he said were not obscene as this Court has defined the term.
5
The first notice received by Silverstein reads, in part, as follows:
'This agency was established by legislative order in 1956 with the immediate charge to prevent the sale, distribution or display of indecent and obscene publications to youths and (sic) eighteen years of age.
'The Commissions (sic) have reviewed the following publications and by majority vote have declared they are completely objectionable for sale, distribution or display for youths under eighteen years of age.
'The Chiefs of Police have been given the names of the aforementioned magazines with the order that they are not to be sold, distributed or displayed to youths and (sic) eighteen years of age.
'The Attorney General will act for us in case of non-compliance.
'The Commissioners trust that you will cooperate with this agency in their work. * * *
'Another list will follow shortly.
'Thanking you for your anticipated cooperation, I am,
'Sincerely yours
'Albert J. McAloon
'Executive Secretary'
Another notice received by Silverstein reads in part:
'This list should be used as a guide in judging other similar publications not named.
'Your cooperation in removing the listed and other objectionable publications from your newstands (sic) will be appreciated. Cooperative action will eliminate the necessity of our recommending prosecution to the Attorney General's department.'
An undated 'News Letter' sent to Silverstein by the Commission reads in part: 'The lists (of objectionable publications) have been sent to distributors and police departments. To the present cooperation has been gratifying.'
6
Appellants' standing has not been, nor could it be, successfully questioned. The appellants have in fact suffered a palpable injury as a result of the acts alleged to violate federal law, and at the same time their injury has been a legal injury. See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 151—152, 71 S.Ct. 624, 637—638, 95 L.Ed. 817 (concurring opinion). The finding that the Commission's notices impaired sales of the listed publications, which include two books published by appellants, establishes that appellants suffered injury. It was a legal injury, although more needs be said to demonstrate this. The Commission's notices were circulated only to distributors and not, so far
as appears, to publishers. The Commission purports only to regulate distribution; it has made no claim to having jurisdiction of out-of-state publishers. However, if this were a private action, it would present a claim, plainly justiciable, of unlawful interference in advantageous business relations. American Mercury, Inc., v. Chase, 13 F.2d 224 (D.C.D.Mass.1926). Cf. 1 Harper and James, Torts (1956), §§ 6.11—6.12. See also Pocket Books, Inc., v. Walsh, 204 F.Supp. 297 (D.C.D.Conn.1962). It makes no difference, so far as appellants' standing is concerned, that the allegedly unlawful interference here is the product of state action. See Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131; Terrace v. Thompson, 263 U.S. 197, 214—216, 44 S.Ct. 15, 17—18, 68 L.Ed. 255; Columbia Broadcasting System v. United States, 316 U.S. 407, 422—423, 62 S.Ct. 1194, 1202—1203, 86 L.Ed. 1563. Furthermore, appellants are not in the position of mere proxies arguing another's constitutional rights. The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication, Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949, and the direct and obviously intended result of the Commission's activities was to curtail the circulation in Rhode Island of books published by appellants. Finally, pragmatic considerations argue strongly for the standing of publishers in cases such as the present one. The distributor who is prevented from selling a few titles is not likely to sustain sufficient economic injury to induce him to seek judicial vindication of his rights. The publisher has the greater economic stake, because suppression of a particular book prevents him from recouping his investment in publishing it. Unless he is permitted to sue, infringements of freedom of the press may too often go unremedied. Cf. N.A.A.C.P. v. State of Alabama ex rel. Patterson, 357 U.S. 449, 459, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488.
7
For discussions of the problem of 'informal censorship,' see Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5, 6—9 and n. 7—22 (1960); Note, Extralegal Censorship of Literature, 33 N.Y.U.L.Rev. 989 (1958); Note, Entertainment: Public Pressures and the Law, 71 Harv.L.Rev. 326, 344—347 (1957); Note, Regulation of Comic Books, 68 Harv.L.Rev. 489, 494—499 (1955); Comment, Censorship of Obscene Literature by Informal Governmental Action, 22 Univ. of ChiL.Rev. 216 (1954); Lockhart and McClure, Literature, the Law of Obscenity, and the Constitution, 38 Minn.L.Rev. 295, 309—316 (1954).
8
Threats of prosecution or of license revocation, or listings or notifications of supposedly obscene or objectionable publications or motion pictures, on the part of chiefs of police or prosecutors, have been enjoined in a number of cases. See Kingsley International Pictures Corp. v. Blanc, 396 Pa. 448, 153 A.2d 243 (1959); Bunis v. Conway, 17 A.D.2d 207, 234 N.Y.S.2d 435 (1962) (dictum); Sunshine Book Co. v. McCaffrey, 4 A.D.2d 643, 168 N.Y.S.2d 268 (1957); Random House, Inc., v. Detroit, No. 555684 Chancery, Cir.Ct., Wayne County, Mich., March 29, 1957; HMH Publishing Co. v. Garrett, 151 F.Supp. 903 (D.C.N.D.Ind.1957); New American Library of World Literature v. Allen, 114 F.Supp. 823 (D.C.N.D.Ohio 1953); Bantam Books, Inc. v. Melko, 25 N.J.Super. 292, 96 A.2d 47 (Chancery 1953), modified on other grounds, 14 N.J. 524, 103 A.2d 256 (1954); Dearborn Publishing Co. v. Fitzgerald, 271 F. 479 (D.C.N.D.Ohio 1921); Epoch Producing Corp. v. Davis, 19 Ohio N.P.,N.S., 465 (C.P.1917). Cf. In re Louisiana News Co. v. Dayries, 187 F.Supp. 241 (D.C.E.D.La.1960); Roper v. Winner, 244 S.W.2d 355, 357 (Tex.Civ.App.1951); American Mercury, Inc. v. Chase, 13 F.2d 224 (D.C.D.Mass.1926). Relief has been denied in the following cases: Pocket Books, Inc. v. Walsh, 204 F.Supp. 297 (D.C.D.Conn.1962); Dell Publishing Co. v. Beggans, 110 N.J.Eq. 72, 158 A. 765 (Chancery 1932). See also Magtab Publishing Corp. v. Howard, 169 F.Supp. 65 (D.C.W.D.La.1959). None of the foregoing cases presents the precise factual situation at bar, and we intimate no view one way or the other as to their correctness.
9
We note that the Commission itself appears to have understood its function as the proscribing of objectionable publications, and not merely the giving of legal advice to distributors. See the first notice received by Silverstein, quoted in note 5, supra. The minutes of one of the Commission's meetings read in part:
'* * * Father Flannery (a member of the Commission) noted that he had been called about magazines proscribed by the Commission remaining on sale after lists had been scent (sic) to distributors and police, to which Mr. McAloon suggested that it could be that the same magazines were seen, but that it probably was not the same edition proscribed by the Commission.
'Father Flannery questioned the statewide compliance by the police, or anyone else, to get the proscribed magazines off the stands. Mr. McAloon showed the Commissioners the questionnaires sent to the chiefs of police from this office and returned to us.'
The minutes of another meeting read in part:
'* * * Mr. Sullivan (member of the Commission) suggested calling the Cranston Chief of Police to inquire the reason Peyton Place was still being sold, distributed and displayed since the Police departments had been advised of the Commission's vote.'
Of course, it is immaterial whether in carrying on the function of censor, the Commission may have been exceeding its statutory authority. Its acts would still constitute state action. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714. The issue of statutory authority was not raised or argued in this litigation.
Our holding that the scheme of informal censorship here constitutes state action is in no way inconsistent with Standard Computing Scale Co. v. Farrell, 249 U.S. 571, 39 S.Ct. 380, 63 L.Ed. 780. In that case it was held that a bulletin of specifications issued by the State Superintendent of Weights and Measures could not be deemed state action for Fourteenth Amendment purposes because the bulletin was purely advisory; the decision turned on the fact that the bulletin was not coercive in purport.
10
Nothing in the Court's opinion in Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403, is inconsistent with the Court's traditional attitude of disfavor toward prior restraints of expression. The only question tendered to the Court in that case was whether a prior restraint was necessarily unconstitutional under all circumstances. In declining to hold prior restraints unconstitutional per se, the Court did not uphold the constitutionality of any specific such restraint. Furthermore, the holding was expressly confined to motion pictures.
1
The appellees were enjoined 'from directly or indirectly notifying book and magazine wholesale distributors and retailers that the Commission has found objectionable any specific book or magazine for sale, distribution or display; said injunction * * * (to) apply whether such notification is given directly to said book and magazine wholesale distributors and retailers, or any of them, either orally or in writing, or through the publication of lists or bulletins, and irrespective of the manner of dissemination of such lists or bulletins.'
2
Rhode Island Gen.Laws (Supp.1961), Tit. 9, c. 30 (Uniform Declaratory Judgments Act.).
3
The publishers and distributors involved in this case are all, so far as this record shows, substantial business concerns, presumably represented by competent counsel, as were the appellants here.
4
It seems obvious that in a nonlicensing context the force of Times Film is not lessened by the circumstance that in this case books rather than motion pictures are involved.
5
In their Reply Brief (p. 4) appellants acknowledge: 'We have never attempted to deal with the question of obscenity or nonobscenity of Appellants' books.'
| 23
|
372 U.S. 128
83 S.Ct. 601
9 L.Ed.2d 633
Mark E. SCHLUDE et al., Petitioners,v.COMMISSIONER OF INTERNAL REVENUE.
No. 80.
Argued Dec. 10, 1962.
Decided Feb. 18, 1963.
Carl F. Bauersfeld, Washington, D.C., for petitioners.
Louis F. Oberdorfer, Washington, D.C., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
This is still another chapter in the protracted problem of the time certain items are to be recognized as income for the purposes of the federal income tax. The commissioner of Internal Revenue increased the 1952, 1953 and 1954 ordinary income of the taxpayers1 by including in gross income for those years amounts received or receivable under contracts executed during those years despite the fact that the contracts obligated taxpayers to render performance in subsequent periods. These increases produced tax deficiencies which the taxpayers unsuccessfully challenged in the Tax Court on the ground that the amounts could be deferred under their accounting method. On appeal, the Court of Appeals for the Eighth Circuit agreed with the taxpayers and reversed the Tax Court, 283 F.2d 234, the decision having been rendered prior to ours in American Automobile Ass'n v. United States, 367 U.S. 687, 81 S.Ct. 1727, 6 L.Ed.2d 1109. Following the American Automobile Association case, certiorari in this case was granted, the judgment of the lower court vacated, 367 U.S. 911, 81 S.Ct. 1915, 6 L.Ed.2d 1248, and the cause remanded for further consideration in light of American Automobile Association. 368 U.S. 873, 82 S.Ct. 25, 7 L.Ed.2d 72. In a per curiam opinion, the Court of Appeals held that in view of American Automobile Association, the taxpayers' accounting method 'does not, for income tax purposes, clearly reflect income' and affirmed the judgment for the Commissioner, 296 F.2d 721. We brought the case back once again to consider whether the lower court misapprehended the scope of American Automobile Association, 370 U.S. 902, 82 S.Ct. 1248, 8 L.Ed.2d 399.
2
Taxpayers, husband and wife, formed a partnership to operate ballroom dancing studios (collectively referred to as 'studio') pursuant to Arthur Murray, Inc., franchise agreements. Dancing lessons were offered under either of two basic contracts. The cash plan contract required the student to pay the entire down payment in cash at the time the contract was executed with the balance due in installments thereafter. The deferred payment contract required only a portion of the down payment to be paid in cash. The remainder of the down payment was due in stated installments and the balance of the contract price was to be paid as designated in a negotiable note signed at the time the contract was executed.
3
Both types of contracts provided that (1) the student should pay tuition for lessons in a certain amount, (2) the student should not be relieved of his obligation to pay the tuition, (3) no refunds would be made, and (4) the contract was noncancelable.2 The contracts prescribed a specific number of lesson hours ranging from five to 1,200 hours and some contracts provided lifetime courses entitling the student additionally to two hours of lessons permonth plus two parties a year for life. Although the contracts designated the period during which the lessons had to be taken, there was no schedule of specific dates, which were arranged from time to time as lessons were given.
4
Cash payments received directly from students and amounts received when the negotiable notes were discounted at the bank or fully paid3 were deposited in the studio's general bank account without segregation from its other funds. The franchise agreements required the studio to pay to Arthur Murray, Inc., on a weekly basis, 10% of these cash receipts as royalty and 5% of the receipts in escrow, the latter to continue until a $20,000 indemnity fund was accumulated. Similarly, sales commissions for lessons sold were paid at the time the sales receipts were deposited in the studio's general bank account.
5
The studio, since its inception in 1946, has kept its books and reported income for tax purposes4 on an accrual system of accounting. In addition to the books, individual student record cards were maintained showing the number of hours taught and the number still remaining under the contract. The system, in substance, operated as follows. When a contract was entered into, a 'deferred income' account was credited for the total contract price. At the close of each fiscal period, the student record cards were analyzed and the total number of taught hours was multiplied by the designated rate per hour of each contract. The resulting sum was deducted from the deferred income account and reported as earned income on the financial statements and the income tax return. In addition, if there had been no activity in a contract for over a year, or if a course were reduced in amount, an entry would be made canceling the untaught portion of the contract, removing that amount from the deferred income account, and recognizing gain to the extent that the deferred income exceeded the balance due on the contract, i.e., the amounts received in advance. The amounts representing lessons taught and the gains from cancellations constituted the chief sources of the partnership's gross income.5 The balance of the deferred income account would be carried forward into the next fiscal year to be increased or decreased in accordance with the number of new contracts, lessons taught and cancellations recognized.
6
Deductions were also reported on the accrual basis except that the royalty payments and the sales commissions were deducted when paid irrespective of the period in which the related receipts were taken into income. Three certified public accountants testified that in their opinion the accounting system employed truly reflected net income in accordance with commercial accrual accounting standards.
7
The Commissioner included in gross income for the years in question not only advance payments received in cash but the full face amounts of notes and contracts executed during the respective years. The Tax Court and the Court of Appeals upheld the Commissioner, but the United States in this Court has retreated somewhat and does not now claim the includibility in gross income of future payments which were not evidenced by a note and which were neither due by the terms of the contract nor matured by performance of the related services.6 The question remaining for decision, then, is this: Was it proper for the Commissioner, exercising his discretion under § 41,7 1939 Code, and § 446(b),8 1954 Code, to reject the studio's accounting system as not clearly reflecting income and to include as income in a particular year advance payments by way of cash, negotiable notes and contract installments falling due but remaining unpaid during that year? We hold that it was since we believe the problem is squarely controlled by American Automobile Association, 367 U.S. 687, 81 S.Ct. 1727, 6 L.Ed.2d 1109.
8
The court there had occasion to consider the entire legislative background of the treatment of prepaid income. The retroactive repeal of § 452 of the 1954 Code, 'the only law incontestably permitting the practice upon which (the taxpayer) depends,' was regarded as reinstating long-standing administrative and lower court rulings that accounting systems deferring prepaid income could be rejected by the Commissioner.
9
'(T)he fact is that § 452 for the first time specifically declared petitioner's system of accounting to be acceptable for income tax purposes, and overruled the long-standing position of the Commissioner and courts to the contrary. And the repeal of the section the following year, upon insistence by the Treasury that the proposed endorsement of such tax accounting would have a disastrous impact on the Government's revenue, was just as clearly a mandate from the Congress that petitioner's system was not acceptable for tax purposes.' 367 U.S., at 695, 81 S.Ct. at 1731.
10
Confirming that view was the step-by-step approach of Congress in granting the deferral privilege to only limited groups of taxpayers while exploring more deeply the ramifications of the entire problem.
11
Plainly, the considerations expressed in American Automobile Association are apposite here. We need only add here that since the American Automobile Association decision, a specific provision extending the deferral practice to certain membership corporations was enacted, § 456, 1954 Code, added by § 1, Act of July 26, 1961, 75 Stat. 222, continuing, at least so far, the congressional policy of treating this problem by precise provisions of narrow applicability. Consequently, as in the American Automobile Association case, we invoke the 'longestablished policy of the Court in deferring, where possible, to congressional procedures in the tax field,' and, as in that case, we cannot say that the Commissioner's rejection of the studio's deferral system was unsound.
12
The American Automobile Association case rested upon an additional ground which is also controlling here. Relying upon Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746, the Court rejected the taxpayer's system as artificial since the advance payments related to services which were to be performed only upon customers' demands without relation to fixed dates in the future. The system employed here suffers from that very same vice, for the studio sought to defer its cash receipts on the basis of contracts which did not provide for lessons on fixed dates after the taxable year, but left such dates to be arranged from time to time by the instructor and his student. Under the contracts, the student could arrange for some or all of the additional lessons or could simply allow their rights under the contracts to lapse. But even though the student did not demand the remaining lessons, the contracts permitted the studio to insist upon payment in accordance with the obligations undertaken and to retain whatever prepayments were made without restriction as to use and without obligation of refund. At the end of each period, while the number of lessons taught had been meticulously reflected, the studio was uncertain whether none, some or all of the remaining lessons would be rendered. Clearly, services were rendered solely on demand in the fashion of the American Automobile Association and Automobile Club of Michigan cases.9
13
Moreover, percentage royalties and sales commissions for lessons sold, which were paid as cash was received from students or from its note transactions with the bank, were deducted in the year paid even though the related items of income had been deferred, at least in part, to later periods. In view of all these circumstances, we hold the studio's accrual system vulnerable under § 41 and § 446(b) with respect to its deferral of prepaid income. Consequently, the Commissioner was fully justified in including payments in cash or by negotiable note10 in gross income for the year in which such payments were received. If these payments are includible in the year of receipt because their allocation to a later year does not clearly reflect income, the contract installments are likewise includible in gross income, as the United States now claims, in the year they become due and payable. For an accrual basis taxpayer 'it is the right to receive and not the actual receipt that determines the inclusion of the amount in gross income,' Spring City Foundry Co. v. Commissioner, 292 U.S. 182, 184, 54 S.Ct. 644, 645, 78 L.Ed. 1200; Commissioner v. Hansen, 360 U.S. 446, 79 S.Ct. 1270, 3 L.Ed.2d 1360, and here the right to receive these installments had become fixed at least at the time they were due and payable.
14
We affirm the Court of Appeals insofar as that court held includible the amounts representing cash receipts, notes received and contract installments due and payable. Because of the Commissioner's concession, we reverse that part of the judgment which included amounts for which services had not yet been performed and which were not due and payable during the respective periods and we remand the case with directions to return the case to the Tax Court for a redetermination of the proper income tax deficiencies now due in light of this opinion. It is so ordered.
15
Affirmed in part and reversed in part and case remanded with directions.
16
Mr. Justice STEWART, with whom Mr. Justice DOUGLAS, Mr. Justice HARLAN, and Mr. Justice GOLDBERG join, dissenting.
17
As the Court notes, this case is but the most recent episode in a protracted dispute concerning the proper income tax treatment of amounts received as advances for services to be performed in a subsequent year by a taxpayer who is on an accrual rather than a cash basis. The Government has consistently argued that such amounts are taxable in the year of receipt, relying upon two alternative arguments: It has claimed that deferral of such payments would violate the 'annual accounting' principle which requires that income not be postponed from one year to the next to reflect the long-term economic result of a transaction. Alternatively, the Government has argued that advance payments must be reported as income in the year of receipt under the 'claim-of-right doctrine,' which requires otherwise reportable income, held under a claim of right without restriction as to use, to be reported when received despite the fact that the taxpayer's claim to the funds may be disputed.1
18
As I have elsewhere pointed out, neither of these doctrines has any relevance to the question whether any reportable income at all has been derived when payments are received in advance of performance by an accrual-basis taxpayer.2 The most elementary principles of accrual accounting require that advances be considered reportable income only in the year they are earned by the taxpayer's rendition of the services for which the payments were made. The Government's theories would force upon an accrualbasis taxpayer a cash basis for advance payments in disregard of the federal statute which explicitly authorizes income tax returns to be based upon sound accrual accounting methods.3
19
Apparently the Court agrees that neither the annual accounting requirement nor the claim-of-right doctrine has any relevance or applicability to the question involved in this case. For the Court does not base its decision on either theory, but rather, as in two previous cases,4 upon the ground that the system of accrual accounting used by these particular taxpayers does not 'clearly reflect income' in accord with the statutory command.5 This result is said to be compelled both by a consideration of legislative history and by an analysis of the particular accounting system which these taxpayers employed.
20
For the reasons I have elsewhere stated at some length,6 to rely on the repeal of §§ 452 and 462 as indicating congressional disapproval of accrual accounting principles is conspicuously to disregard clear evidence of legislative intent. The Secretary of the Treasury, who proposed the repeal of these sections, made explicitly clear that no inference of disapproval of accrual accounting principles was to be drawn from the repeal of the sections.7 So did the Senate Report.8 The repeal of these sections was occasioned solely by the fear of temporary revenue losses which would result from the taking of 'double deductions' during the year of transition by taxpayers who had not previously maintained their books on an accrual basis.9
21
The Court's decision can be justified, then, only upon the basis that the system of accrual accounting used by the taxpayers in this case did not 'clearly reflect income' in accordance with the command of § 41. In the Automobile Club of Michigan case10 the taxpayer allocated yearly dues ratably over 12 months, so that only a portion of the dues received during any fiscal year was reported as income for that year. In the absence of any proof that services demanded by the Automobile Club members were distributed in the same proportion over the year, the Court held that the system used by the taxpayer did not clearly reflect income. In the American Automobile Association case11 the taxpayer offered statistical proof to show that its proration of dues reasonably matched the proportion of its yearly costs incurred each month in rendering services attributable to those dues. The Court discounted the validity of this statistical evidence because the amount and timing of the services demanded were wholly within the control of the individual members of the Association, and the Court thought that the Association could not, therefore, estimate with accuracy the costs attributable to each individual member's demands.
22
In the present case the difficulties which the Court perceived in Automobile Club of Michigan and American Automobile Association have been entirely eliminated in the accounting system which these taxpayers have consistently employed. The records kept on individual students accurately measured the amount of services rendered—and therefore the costs incurred by the taxpayer—under each individual contract during each taxable year. But, we are told, there is a fatal flaw in the taxpayers' accounts in this case too: The individual contracts did not provide 'for lessons on fixed dates * * *, but left such dates to be arranged from time to time by the instructor and his student.' Yet this 'fixed date of performance' standard, it turns out, actually has nothing whatever to do with those aspects of the taxpayers' accounting system which the Court ultimately finds objectionable.
23
There is nothing in the Court's opinion to indicate disapproval of the basic method by which income earned by the rendition of services was recorded. On the contrary, the taxpayers' system was admittedly wholly accurate in recording lessons given under each individual contract. It was only in connection with lessons which had not yet been taught that the taxpayers were 'uncertain whether none, some, or all' of the contractual services would be rendered, and the condemned 'arbitrariness' therefore is limited solely to the method by which cancellations were recognized.12 It is, of course, true of all businesses in which services are not rendered simultaneously with payment that the number and amount of cancellations are necessarily unknown at the time advances are received. But surely it cannot be contended that a contract which specified the times at which lessons were to be given would make any more certain how many of the remaining lessons students would in fact demand. Indeed, the Court does not suggest that a schedule fixing the dates of all future lessons would, if embodied in each contract, suffice to make petitioners' accounting system 'clearly reflect income.'
24
Instead, the cure suggested by the Court for the defect which it finds in the accounting system used by these taxpayers is that estimated cancellations should be reported as income in the year advance payments are received. I agree that such estimates might more 'clearly reflect income' than the system actually used by the taxpayers. But any such estimates would necessarily have to be based on precisely the type of statistical evaluations which the Court struck down in the American Automobile Association case. Whatever other artificialities the exigencies of revenue collection may require in the field of tax accounting, it has never before today been suggested that a consistent method of accrual accounting, valid for purposes of recognizing income, is not equally valid for purposes of deferring income. Yet in this case the Court says that the taxpayers, in recognizing income, should have used the very system of statistical estimates which, for income deferral purposes, the American Automobile decision held impermissible.
25
It seems to me that this decision, the third of a trilogy of cases purportedly decided on their own peculiar facts, in truth completes the mutilation of a basic element of the accrual method of reporting income—a method which has been explicitly approved by Congress for almost half a century.13
26
I respectfully dissent.
1
The controversy turns upon the accounting method employed by a partnership in which the taxpayers were equal partners. Since a partnership is not a taxable entity, the partners being liable in their individual capacities for their distributive share of partnership income, § 181, Int.Rev.Code of 1939; § 701, Int.Rev.Code of 1954, the proper statement of the partnership's income affects only the tax liabilities of the partners individually. However, as there is no other dispute in the case, for convenience the discussion will center upon the partnership's accounting method without further mention of its effect upon the respective tax liabilities of the partners.
2
Although the contracts stated they were noncancelable, the studio frequently rewrote contracts reducing the number of lessons for a smaller sum of money. Also, despite the fact that the contracts provided that no refunds would be made, and despite the fact that the studio discouraged refunds, occasionally a refund would be made on a canceled contract.
3
Notes taken from the students were ordinarily transferred, with full recourse, to a local bank which would deduct the interest charges and credit the studio with approximately 50% of the face amount. The remaining 50% was held in a reserve account, unavailable to the studio, until the note was fully paid, at which time the reserved amount was transferred to the studio's general bank account.
4
Though the studio is not a taxable entity, it is still required to prepare and file an information return showing, inter alia, items of gross income and allowable deductions. § 187, 1939 Code; § 6031, 1954 Code.
5
The following schedule reflects ordinary net income on the studio's books and returns:
Gross income:
Contract amounts transferred to. 1952 1953 1954
earned income... $143,949.63. $243,277.46 $325,266.97
Gains from cancellation. 26,861.40. 19,483.36 28,488.61
Other income....... 4,041.21. 11,426.23 16,987.31
Total...........174,852.24.274,187.05 370,702.89
Deductions...........137,267.91.223,390.69 301,609.76
Ordinary net income. 37,584.33. 50,796.36 69,093.13
6
'Upon reconsideration, however, we concede the error of accruing future payments which are neither due as a matter of contract, nor matured by performance of the related services. Indeed, the Studio's right to collect the installment on its due date depends on its continuing ability and willingness to perform. Until that time, its right to receive payment has not fully ripened.' Brief for the United States, p. 67.
7
'§ 41. General rule
'The net income shall be computed upon the basis of the taxpayer's annual accounting period (fiscal year or calendar year, as the case may be) in accordance with the method of accounting regularly employed in keeping the books of such taxpayer; but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made in accordance with such method as in the opinion of the Commissioner does clearly reflect the income. If the taxpayer's annual accounting period is other than a fiscal year as defined in section 48 or if the taxpayer has no annual accounting period or does not keep books, the net income shall be computed on the basis of the calendar year.'
8
'§ 446. General rule for methods of accounting
'(a) General rule.—Taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books.
'(b) Exceptions.—If no method of accounting has been regularly used by the taxpayer, or if the method used does not clearly reflect income, the computation of taxable income shall be made under such method as, in the opinion of the Secretary or his delegate, does clearly reflect income.
'(c) Permissible methods.—Subject to the provisions of subsections (a) and (b), a taxpayer may compute taxable income under any of the following methods of accounting—
'(1) the cash receipts and disbursements method;
'(2) an accrual method;
'(3) any other method permitted by this chapter; or
'(4) any combination of the foregoing methods permitted under regulations prescribed by the Secretary or his delegate.'
9
The treatment of 'gains from cancellations' underlines this aspect of the case. These gains, representing amounts paid or promised in advance of lessons given, were recognized in those periods in which the taxpayers arbitrarily decided the contracts were to be deemed canceled. The studio made no attempt to report estimated cancellations in the year of receipt, choosing instead to defer these gains to periods bearing no economic relationship to the income recognized. Cf. Continental Tie & Lumber Co. v. United States, 286 U.S. 290, 52 S.Ct. 529, 76 L.Ed. 1111.
10
Negotiable notes are regarded as the equivalent of cash receipts, to the extent of their fair market value, for the purposes of recognition of income. § 39.22(a)—4, Treas.Reg. 118, 1939 Code; § 1.61—2(d)(4), Treas.Reg., 1954 Code; Mertens, Federal Income Taxation (1961), § 11.07. See Pinellas Ice & Cold Storage Co. v. Commissioner, 287 U.S. 462, 53 S.Ct. 257, 77 L.Ed. 428.
1
The Commissioner has sometimes been successful in urging the 'claim-of-right doctrine' as a bar to the deferral of advances by accrual-basis taxpayers. See e.g., Andrews v. Commissioner, 23 T.C. 1026, 1032—1033; South Dade Farms v. Commissioner, 138 F.2d 818 (C.A.5th Cir.); Clay Sewer Pipe Ass'n v. Commissioner, 139 F.2d 130 (C.A.3d Cir.); Automobile Club of Michigan v. Commissioner, 230 F.2d 585, 591 (C.A.6th Cir.), aff'd on other grounds, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746.
In more recent cases, on the other hand, the Courts of Appeals have held the claim-of-right doctrine irrelevant to this problem. Bressner Radio, Inc. v. Commissioner, 267 F.2d 520, 524, 525—528 (C.A.2d Cir.); Schuessler v. Commissioner, 230 F.2d 722, 725 (C.A.5th Cir.); Beacon Publishing Co. v. Commissioner, 218 F.2d 697, 699—701 (C.A.10th Cir.).
In the present case the Commissioner urged that the 'claim-of-right doctrine' was applicable even to advance fees which were due under the contract but not yet paid, a position from which he receded only when the case reached this Court. The Tax Court, at least in one case, has accepted the argument. Your Health Club, Inc. v. Commissioner, 4 T.C. 385.
2
See American Automobile Ass'n v. United States, 367 U.S. 687, at 699—702, 81 S.Ct. 1727, at 1733—1735, 6 L.Ed.2d 1109 (dissenting opinion).
3
'§ 446. General rule for methods of accounting
'(a) General rule.—Taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books.
'(b) Exceptions.—If no method of accounting has been regularly used by the taxpayer, or if the method used does not clearly reflect income, the computation of taxable income shall be made under such method as, in the opinion of the Secretary or his delegate, does clearly reflect income.
'(c) Permissible methods.—Subject to the provisions of subsections (a) and (b), a taxpayer may compute taxable income under any of the following methods of accounting—
'(2) an accrual method; * * *.'
4
Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746, and American Automobile Ass'n v. United States, 367 U.S. 687, 81 S.Ct. 1727, 6 L.Ed.2d 1109.
5
See note 3, supra. See also § 41, 1939 Code.
6
See American Automobile Ass'n v. United States, 367 U.S. at 703—711, 81 S.Ct. at 1735—1739 (dissenting opinion).
7
H.R.Rep.No.293, 84th Cong., 1st Sess. 5.
8
S.Rep.No.372, 84th Cong., 1st Sess. 5—6. See also H.R.R.ep.No.293, 84th Cong., 1st Sess. 4—5, U.S.Code Congressional and Administrative News 1955, p. 2046.
9
Since the taxpayers in the present case have consistently maintained their books on an accrual basis, they could not have taken advantage of a 'double deduction' even under the repealed sections.
10
353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746.
11
367 U.S. 687, 81 S.Ct. 1727, 6 L.Ed.2d 1109.
12
The Court also urges that the taxpayers' treatment of the commissions paid to sales personnel and royalties paid to Arthur Murray, Inc., were inconsistent with an accrual accounting system. It should be noted that § 1.461—1(a)(3), Treas.Reg., 1954 Code, specifically provides: '* * * However, in a going business there are certain overlapping deductions. If these overlapping items do not materially distort income, they may be included in the years in which the taxpayer consistently takes them into account.' If, however, the Court is holding that these items do 'materially distort income,' then the case should be remanded for recomputation as to these items.
13
See § 13(d) of the Revenue Act of 1916, 39 Stat. 771.
| 1112
|
372 U.S. 108
83 S.Ct. 659
9 L.Ed.2d 618
James GALLICK, Petitioner,v.The BALTIMORE AND OHIO RAILROAD COMPANY.
No. 76.
Argued Dec. 10, 1962.
Decided Feb. 18, 1963.
Marshall I. Nurenberg, Cleveland, Ohio, for petitioner.
Alexander H. Hadden, for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
Upon a special verdict of the jury, the Common Pleas Court of Cuyahoga County, Ohio, entered judgment awarding damages to petitioner in this Federal Employers' Liability Act1 suit. The Court of Appeals reversed, 173 N.E.2d 382, and the Ohio Supreme Court refused further appellate review, 172 Ohio St. 488, 178 N.E.2d 597, making the decision of the intermediate appellate court the final judgment rendered by the state courts. This Court granted certiorari, 369 U.S. 848, 82 S.Ct. 935, 8 L.Ed.2d 8, to consider the question whether the decision below improperly invaded the jury's function. We have concluded that the decision below is erroneous and must be reversed.
2
Petitioner was a spotting crew foreman working on or about August 10, 1954, along the respondent railroad's right of way in the Cuyahoga River 'flats' section of Cleveland, Ohio. At the particular stretch of roadbed where petitioner was working on that afternoon, there had been for many years a pool of stagnant water, in and about which were dead and decayed rats and pigeons, or portions thereof. Insects had been seen on, over, and about this stagnant pool, and the evidence showed, as the Court of Appeals stated, that respondent had long been aware of the fetid condition of this pool. 173 N.E.2d, at 383. While he was temporarily working near the pool, petitioner experienced a bite on his left leg just above the knee. He grasped the spot with his hand and felt an object under his trousers which seemed to be a large insect and which, when he crushed it, dropped out of his trouser leg. The wound subsequently became infected. The infection failed to respond to medical treatment, and worsened progressively until it spread throughout petitioner's body, creating pus-forming lesions and eventually necessitating the amputation of both his legs. None of the doctors who treated and studied petitioner's case could explain the etiology of his present condition, although some of them diagnosed or characterized it as 'pyodermagangrenosa, secondary to insect bite.' See id., at 384.
3
The Federal Employers' Liability Act makes railroads liable in damages to any employee suffering 'injury or death resulting in whole or in part from the negligence of * * * (the) carrier, or by reason of any defect or insufficiency, due to its negligence, in its * * * roadbed * * * or other equipment.' 45 U.S.C. § 51. In his complaint petitioner alleged respondent's negligence both in permitting the stagnant pool to accumulate dead vermin and attract insects, and in its furnishing a defective and unsafe place for petitioner's work. The respondent denied any negligence and contended that if petitioner's serious injuries resulted from an insect bite sustained while working on railroad property, such consequences 'were beyond the realm of reasonable probability or foreseeability, with the result that no duty arose' to exercise due care to protect petitioner 'from any such risk.' 173 N.E.2d at 384.
4
After a lengthy trial, the court, pursuant to the State's special verdict statute, Ohio Rev.Code, § 2315.15, under which no general verdict is rendered by the jury, submitted some two dozen interrogatories to the jury and charged them as to what it deemed the applicable law of negligence. The special verdict of the jury, to the extent that it is relevant here, follows (answers italicized):
5
'10. On approximately August 10, 1954, was plaintiff bitten by an insect? Yes.
6
'13. Did the defendant B & O, provide the plaintiff Mr. Gallick a reasonably safe place to work under the facts and circumstances existing at the time? Jury can't decide on this question.
7
'14. (D)id the defendant B & O know that by permitting the accumulation of said pool of stagnant water, dead pigeons, dead rats, bugs, and vermin would be attracted to said area? Yes.
8
'15. If the answer to 14 is yes, did the defendant B & O know that its employees would have to work in this area? Yes.
9
'16. Was the defendant negligent in one or more of the particulars alleged in the petition? Yes.
10
'17. If the answer to Question 16 is yes, indicate in the words of the petition the acts or omissions which constitute defendant's negligence. There existed a pool of stagnant water on the premises in the possession of and under the control of defendant into which was accumulated dead pigeons, rats, and various forms of bugs and vermin.
11
'18. Was the illness or diseases from which Mr. Gallick now suffers caused in whole or in part by an insect bite sustained by him on defendant B & O's premises? Yes.
12
'19. Were the injuries to the plaintiff proximately caused * * * by * * * the acts or omissions of the defendant? Yes.
13
'20. (W)as there any reason for the defendant B & O to anticipate that such (maintaining stagnant, infested pool) would or might probably result in a mishap or an injury? No.
14
'21. Is there a proximate causal relationship to the stagnant water, the dead rats, the dead pigeons, the insect bite, and the present physical condition of the plaintiff? Yes.
15
'22. If the answer to Question 21 is yes, was it within the realm of reasonable probability or foreseeability of the defendant B & O to appreciate this proximate causal relationship between the stagnant water, the dead rats, the dead pigeons, the insect bite and the present physical condition of the plaintiff? No.' The trial court entered judgment for petitioner and respondent appealed, assigning as error various trial rulings, none of which the Court of Appeals found 'prejudicial to the rights of the appellant,' except the fundamental one, in the court's view, that judgment for respondent should have been entered on a directed verdict because the trial evidence was insufficient to support a judgment for petitioner.2 The court said that the evidence showed that an insect bit petitioner and caused his severe injuries. It also found that 'to maintain for a period of years a stagnant, vermin-infested pool of water on and over which insects gather,' on property where the railroad's employees were required to work 'could furnish the gravamen of an offense (sic) under the Federal Employers' Liability Act.' 173 N.E.2d, at 387. The court emphasized, however, that there was no 'direct evidence that the existence of the unidentified bug at the time and place had any connection with the stagnant and infested pool,' or had become infected by the pool with the substance that caused petitioner's infection, evidence which would negative the alternative possibility that the insect had emanated from 'the nearby putrid mouth of the Cuyahoga River, or from weeds, or unsanitary places situated on property not owned or controlled by the railroad.' The Court of Appeals therefore deemed the evidence merely 'a series of guesses and speculations * * * a chain of causation too tenuous * * * to support a conclusion of liability.' Id., at 388. '(W)e have a chain of possibilities that the negligence of the defendant might have shared in subjecting the plaintiff to damage and injury, but the proof of a legal causal connection between the negligence and the damage falls short of that required for the consideration of a jury.' Ibid. Accordingly, it reversed the judgment of the Court of Common Pleas and entered final judgment for respondent.
I.
16
We think that the Court of Appeals improperly invaded the function and province of the jury in this Federal Employers' Liability Act case. According to the Court of Appeals, the break in the causal chain that turned it into a mere 'series of guesses and speculations' was the want of evidence from which the jury could properly conclude that respondent's fetid pool had had something to do with the insect that bit petitioner. The only question was whether or not the insect was from or had been attracted by the pool. We hold that the record shows sufficient evidence to warrant the jury's conclusion that petitioner's injuries were caused by the acts or omissions of respondent.
17
As the Court of Appeals stated, 'insects were seen on, over and about this stagnant pool.' According to petitioner's undisputed testimony, he stood near the pool for about a half a minute; then he started to walk away and was bitten on the leg after he took a few steps, perhaps one or two seconds later. Petitioner also testified, on cross-examination, that he had at times seen insects of about the same size as that which bit him crawling over the dead rats and pigeons in the stagnant pool. And on cross-examination by respondent two medical witnesses testified that stagnant, rat-infested pools breed and attract insects.3 Moreover, the jury specifically found that the pool accumulated and attracted bugs and vermin.
18
The Court of Appeals erred in demanding either 'direct evidence that the existence of the unidentified bug at the time and place had any connection with the stagnant and infested pool' or else more substantial circumstantial evidence than that adduced here 'that the pool created conditions and influences which helped to incubate of furnish an environment for the bug * * * or that the insect, having traveled from other areas, became contaminated or infected by the pool.' 173 N.E.2d at 388. Under the ruling cases in this Court the evidence present was sufficient to raise an issue for the jury's determination as to whether the insect emanated from the pool.
19
In Tennant v. Peoria & P.U.R. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520, one of the leading cases, the Court granted certiorari 'because of important problems as to petitioner's right to a jury determination of the issue of causation.' There was no direct evidence of how the decedent was killed. There was evidence that the respondent railroad had been negligent or careless in failing to ring a warning bell before moving an engine, and evidence that the victim was killed by being run over by a train. The question of how the victim met his death was susceptible to various answers, all somewhat conjectural because of the want of direct evidence, some of which supported petitioner's claims and others respondent's. The Court of Appeals set aside a jury verdict for petitioner for failure of the evidence to make out proximate cause, but this Court reversed:
20
'It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. Washington & Georgetown R. Co. v. McDade, 135 U.S. 554, 571, 572, 10 S.Ct. 1044, 1049, 34 L.Ed. 235; Tiller v. Atlantic Coast Line R. Co., supra, 318 U.S. 68, 63 S.Ct. 451, 143 A.L.R. 967; Bailey v. Central Vermont Ry., 319 U.S. 350, 353, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444. That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.' 321 U.S., at 35, 64 S.Ct. at 412.
21
Later Federal Employers' Liability Act cases involving sufficiency of the evidence on causation where several explanations are plausible follow the teaching of the Tennant case. In Schulz v. Pennsylvania R. Co., 350 U.S. 523, 76 S.Ct. 608, 100 L.Ed. 668, a tug fireman was drowned in undetermined circumstances arising from his 'work on * * * dark, icy and undermanned boats'; the lower court said: 'There is some evidence of negligence, and there is an accidental death. But there is not a shred of evidence connecting the two.' This Court held that there was sufficient evidence of causation to require submission of the case to the jury. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916, was another Federal Employers' Liability Act case in which it was uncertain which of various alternative explanations for the cause of the injury was correct. Petitioner's theory was that a mail-hook protruding from a train had hit the victim, while respondent's theory was that an unknown murderer was responsible. Both theories were plausible; the jury found for petitioner, but the lower Court reversed for insufficient evidence. This court reversed on the ground that the lower appellate court had committed 'an undue invasion of the jury's historic function.'
22
These cases, as does the instant case, all involved the question of whether there was evidence that any employer negligence caused the harm, or, more precisely, enough to justify a jury's determination that employer negligence had played any role in producing the harm. In the more recent case, Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493, one of the questions was whether, given the antecedent negligence or carelessness of the employer in maintaining a roadside surface with loose, slippery gravel instead of a firm, flat footing, the causal impact of such neglectfulness was negatived by the subsequent or concurrent negligence of the employee in failing to pay attention to what he was supposed to be doing. Although the context is thus somewhat dissimilar to the present one, the language used in the opinion is most apposite:
23
'Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part * * * in producing the injury * * *. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes * * *. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities.' 352 U.S., at 506—507, 77 S.Ct. at 448—449.
24
The facts before the jury fall within this standard and the Court of Appeals therefore erred in refusing to accept the jury's verdict.
II.
25
Although we have concluded that the jury could properly find that there was a causal relationship between the railroad's negligence and petitioner's injuries, that does not end the case.4 Respondent makes the further argument that the judgment under review may be sustained on the alternative ground, not accepted by the Court of Appeals, that the injury was not reasonably foreseeable, and that therefore there was no negligence.
26
We agree with respondent that reasonable foreseeability of harm is an essential ingredient of Federal Employers' Liability Act negligence. Inman v. Baltimore & O.R. Co., 361 U.S. 138, 140, 80 S.Ct. 242, 243, 4 L.Ed.2d 198; see Brady v. Southern R. Co., 320 U.S. 476, 483—484, 64 S.Ct. 232, 236, 88 L.Ed. 239; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 67, 63 S.Ct. 444, 451, 87 L.Ed. 618; Ringhiser v. Chesapeake & O.R. Co., 354 U.S. 901, 903, 905, 77 S.Ct. 1093, 1096, 1 L.Ed.2d 1268 (dissenting opinions); Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 503, 77 S.Ct. 443, 503, 1 L.Ed.2d 493; cf. Morales v. City of Galveston, 370 U.S. 165, 171, 82 S.Ct. 1226, 1230, 8 L.Ed.2d 412; Dalehite v. United States, 346 U.S. 15, 42, 73 S.Ct. 956, 971, 97 L.Ed. 1427.5 But this requirement has been satisfied in the present case by the jury's findings (Nos. 10, 14—19, 21) of negligence in maintaining the filthy pool of water. The jury had been instructed that negligence is the failure to observe that degree of care which people of ordinary prudence and sagacity would use under the same or similar circumstances;6 and that defendant's duty was measured by what a reasonably prudent person would anticipate as resulting from a particular condition 'defendant's duties are measured by what is reasonably foreseeable under like circumstances'—by what 'in the light of the facts then known, should or could reasonably have been anticipated.'7 Thus when the jury found these facts: petitioner was bitten by an insect; the insect bite caused illness or disease and led to petitioner's present physical condition; the stagnant pool attracted bugs and vermin and was responsible for the insect bite and the injuries to petitioner; and respondent knew that the accumulation of the pool of water would attract bugs and vermin to the area—it is clear that the jury concluded that respondent should have realized the increased likelihood of an insect's biting petitiioner while he was working in the vicinity of the pool.
27
Respondent places reliance, however, upon two special interrogatories returned by the jury. In one, No. 22, the jury found that respondent could not foresee that the stagnant pool would set into being a chain of events that would culminate in petitioner's present physical condition—loss of two limbs, widespread ulcerations, and permanent disability. In the other, No. 20, the jury found that respondent did not have reason to anticipate that its maintenance of the pool 'would or might probably result in a mishap or an injury.' It is said that interrogatories Nos. 20 and 22 are findings of no foreseeability, and that there is therefore a fatal inconsistency among the jury's findings and that they cancel one another out, necessitating a judgment for the defendant, or at least a new trial. See Freightways, Inc., v. Stafford, 217 F.2d 831, 835 (C.A.8th Cir.); Fed.Rules Civ.Proc. 49(b). See also Larrissey v. Norwalk Lines, 155 Ohio St. 207, 214—215, 98 N.E.2d 419, 423—424; Klever v. Reid Bros., 151 Ohio St. 467, 476, 86 N.E.2d 608, 612. But it is the duty of the courts to attempt to harmonize the answers, if it is possible under a fair reading of them: 'Where there is a view of the case that makes the jury's answers to special interrogatories consistent, they must be resolved that way.' Atlantic & Gulf Stevedores, Inc., v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798. We therefore must attempt to reconcile the jury's findings, by exegesis if necessary, as in Arnold v. Panhandle & S.F.R. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889; McVey v. Phillips Petroleum Co., 288 F.2d 53 (C.A.5th Cir.); Morris v. Pennsylvania R. Co., 187 F.2d 837 (C.A.2d Cir.) (collecting authorities), before we are free to disregard the jury's special verdict and remand the case for a new trial.
28
We do not believe that the conclusion of fatal inconsistency is compelled by these findings. In the first place, the jury might not have equated a foreseeable insect bite with a mishap or injury. The trial judge more than once in his instructions separated an 'insect bite' from 'injury,' 'infection,' 'illness' or 'disease.' The answer to Question 20 thus might mean simply that while an insect bits was foreseeable, there was no reason to anticipate a 'mishap' or 'injury' from such a bite. This answer therefore falls in the same category as the jury's response to Question 22, where the jury found that there was no reasonably foreseeable causal relationship between the insect bite and the present physical condition of the plaintiff. It is widely held that for a defendant to be liable for consequential damages he need not foresee the particular consequences of his negligent acts: assuming the existence of a threshold tort against the person, then whatever damages flow from it are recoverable. See, e.g., Boal v. Electric Battery Co., 98 F.2d 815, 819 (C.A.3d Cir.); Koehler v. Waukesha Milk Co., 190 Wis. 52, 57—63, 208 N.W. 901, 903—905 (collecting authorities); Restatement, Torts, § 435; 2 Harper and James, Torts, 1139—1140; Prosser, Torts, 260 (2d ed.); Seavey, Mr. Justice Cardozo and the Law of Torts, 48 Yale L.J. 390, 402—403.8 And we have no doubt that under a statute where the tortfeasor is liable for death or injuries in producing which his 'negligence played any part, even the slightest' (Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493) such a tortfeasor must compensate his victim for even the improbable or unexpectedly severe consequences of his wrongful act. Cf. Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382; Coray v. Southern Pac. Co., 335 U.S. 520, 69 S.Ct. 275, 93 L.Ed. 208; Lillie v. Thompson, 332 U.S. 459, 68 S.Ct. 140, 92 L.Ed. 73. The answers to these two interrogatories are therefore not controlling for Federal Employers' Liability Act purposes.
29
In the second place, in deciding whether respondent had reason to anticipate and foresee any harm to petitioner, the trial court instructed the jury to take into account 'the past experience respecting the location and conditions in question' and the fact 'that no occurrence of the kind here alleged either occurred, or was known by defendant to have occurred, at or near this place before August of 1954.'9 The jury thus might have determined that, since there had been no similar incidents at this pool in the past, the respondent had no specific 'reason' for anticipating a mishap or injury to petitioner—a far too narrow a concept of foreseeable harm to negative negligence under the Federal Employers' Liability Act. Thus there is a second and independent ground for the court to have put aside No. 20 as immaterial. Looking at No. 20 in the context of the charge and the total context of the special verdict, see McVey v. Phillips Petroleum Co., 288 F.2d 53, 59 (C.A.5th Cir.); Halprin v. Mora, 231 F.2d 197, 201 (C.A.3d Cir.), we cannot assign it sufficient weight to warrant overturning the judgment of the trial court entered pursuant to the jury's special verdict.
30
We have examined respondent's other contentions and found them without merit, including the contention that there was insufficient evidence to support the finding of negligence. The Court of Appeals erred in depriving petitioner of the judgment entered upon the special verdict of the jury. Arnold v. Panhandle & S.F.R. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889. The judgment of the Ohio Court of Appeals is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
31
Reversed.
32
Mr. Justice HARLAN, dissenting.
33
Heartrending as the petitioner's accident has turned out to be, I think this case should not have been brought here. It involves no unsettled questions of federal law calling for decision by this Court, nor, in any acceptable sense, a departure by the state courts from legal principles already decided requiring this Court's intervention. The case thus does not qualify for review under Rule 19.* See the dissenting opinion of Mr. Justice Frankfurter in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 77 S.Ct. 443, 458, 1 L.Ed.2d 493, and the separate opinion of this writer, p. 559, 77 S.Ct. p. 478. The case has necessarily required an inordinate amount of time, which the Court can ill afford in the present state of its docket.
34
Reaching the merits, however, id., pp. 559—562, 77 S.Ct. p. 478, 479, I would affirm the judgment below. I agree with my Brothers STEWART and GOLDBERG as to the inconsistency of the jury's verdict. But in addition, I cannot say that the view of the record taken by the state courts, in holding that the evidence on the issue of causation was insufficient to make a case for the jury, was an arbitrary or unreasonable one. The opinion of the Ohio Court of Appeals evinces a conscientious effort to follow this Court's decisions under the Federal Employers' Liability Act, and more particularly the broad pronouncements made in the Rogers case, supra. On this score the Court's reversal seems to me no more than an exercise in second-guessing the state court's estimate of the record.
35
From another standpoint this case does have significance. It affords a particularly dramatic example of the inadequacy of ordinary negligence law to meet the social obligations of modern industrial society. The cure for that, however, lies with the legislature and not with the courts.
36
Mr. Justice STEWART and Mr. Justice GOLDBERG, dissenting.
37
We cannot agree with the Court's disposition of this case, in view of the jury's explicit finding that injury to the petitioner was not reasonably foreseeable. As the Court correctly states, 'foreseeability of harm is an essential ingredient of Federal Employers' Liability Act negligence.' Interrogatory No. 20 was unambiguous: '(W)as there any reason for the defendant B & O to anticipate that such (maintenance of a stagnant, infested pool) would or might probably result in a mishap or an injury?' In our view the jury's answer to this interrogatory, finding that the railroad had no reason here to anticipate mishap or injury, was irreconcilably inconsistent with its finding of negligence in answer to Interrogatory No. 16, and a new trial should have been ordered.
38
The Court agrees that the answer to Interrogatory No. 20 was inconsistent with the jury's answer to Interrogatory No. 16. But instead of concluding that this inconsistency cancels out the several findings involved and thus voids the entire verdict, the Court undertakes to search for an alternative meaning to be given to Interrogatory No. 20 in order to bring it into line with the special finding which favors the petitioner. The Court seeks support for this Procrustean exercise in the often-repeated admonition that courts should make every effort 'to reconcile the jury's findings, by exegesis if necessary, * * * before we are free to disregard the jury's special verdict and remand the case for a new trial.' We think this generally sound guideline is misapplied in the present case.
39
The duty of courts to attempt to reconcile inconsistent jury findings has emerged from cases in which the jury answerer special interrogatories and also returned a general verdict. See, e.g., Arnold v. Panhandle & S.F.R. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889.1
40
The inconsistencies which the courts have dealt with in these cases were inconsistencies between a general verdict for one of the parties and seemingly conflicting special findings in answer to added interrogatories. The purpose of such an effort has been to preserve, if possible, the integrity of the jury's general verdict. As one leading commentator has explained, in the context of Federal Rule 49(b),
41
'The power to enter judgment on findings consistent with each other but inconsistent with the general verdict is a constitutional one and does not violate the Seventh Amendment since the jury's findings of fact are not being re-examined but, as a reasonable regulation of practice, their more specific findings of fact are allowed to control over their general conclusion embodied in the general verdict. Every reasonable intendment should, however, be indulged in favor of the general verdict in an effort to harmonize it with the answers to the interrogatories, and the latter should be held controlling only 'where the conflict on a material question is beyond reconciliation on any reasonable theory consistent with the evidence and its fair inferences.' Of course, if the answers are inconsistent with each other, and one or more with the general verdict, the court cannot enter judgment upon the basis of any of the findings, and as provided by the Rule, should not direct the entry of judgment at all, but should return the jury for further deliberation or should order a new trial.' 5 Moore, Federal Practice, 49.04.
42
Although the Court several times mentions a 'special verdict' of the jury, this refers to no more than the answers given to the interrogatories. The fact is that the jury returned no general verdict for either party. The jury simply answered a list of 23 specific questions, and their answers neither were, nor under any fair reading can be made, consistent. Nothing in the structure of the jury's several findings marks the answer to Interrogatory No. 20 as the one which is obviously out of line. It would be as plausible—and as incorrect—to say that the finding in response to Interrogatory No. 16 must be read to conform to the answer to Interrogatory No. 20, and to enter judgment for the respondent.2
43
We agree with the Court, and hence disagree with our Brother HARLAN, about the sufficiency of the evidence on the issue of causation to make a case for the jury under the standards laid down by this Court, e.g., Rogers v. Missouri Pac.R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493. We also agree with the Court that no inconsistency with a finding of negligence arises from the jury's answer to Interrogatory No. 22, wherein it found that the railroad had no reason to anticipate the extent of the petitioner's injuries. In our view the answer to Interrogatory No. 22 was simply immaterial, because the interrogatory asked, in effect, whether the extent of the petitioner's injuries was foreseeable—an issue irrelevant to the merits of the case, as the Court's opinion aptly points out.
44
Our disagreement with the Court arises, therefore, only from its treatment of the jury's answer to Interrogatory No. 20. Since, as the Court recognizes, foreseeability of harm (as distinguished from foreseeability of the extent of injury covered by Interrogatory No. 22) is the test of liability in FELA cases, the jury's answer to Interrogatory No. 20 is plainly and irreconcilably inconsistent with its answer to Interrogatory No. 16.3 Because the jury in answer to No. 16 found that the railroad was negligent, and yet at the same time specifically found in answer to No. 20 that the mishap was unforeseeable, it is, in our view, impossible to enter a judgment for either party based on these findings. By undertaking to reconcile irretrievably conflicting findings of the jury, the Court, we think, has made the same error that it correctly attributes to the Ohio Court of Appeals—it has invaded the province of the jury under this federal statute. We would avoid such an intrusion by ordering that the cause be put to another jury.
45
For these reasons we would set aside the judgment and remand this case for a new trial.
1
35 Stat. 65, as amended, 45 U.S.C. § 51.
2
For the same reason the Court of Appeals found error in the trial court's refusal to enter a judgment n.o.v. See Journal Entry, R. 629.
3
The Court of Appeals emphasized the fact that no similar bite was ever complained about, as a factor in gauging the probability that the actual causal chain corresponded to petitioner's theory of the case, 173 N.W.2d, at 387; it accepted as supported by 'sufficient credible evidence' the finding that an insect bit petitioner, but it disagreed with the finding that pool and insect bite were related. Although the record does not show that any complaint was ever made to respondent about insect bites, petitioner testified that he had complained to the section foreman about the vermin-infested pool several times and another witness testified that he was bitten by an insect near it in or about September 1954.
4
See B. F. Goodrich Co. v. United States, 321 U.S. 126, 127, 64 S.Ct. 471, 472, 88 L.Ed. 602; United States v. American R. Exp. Co., 265 U.S. 425, 435, 44 S.Ct. 560, 563, 68 L.Ed. 1087; Frey & Son, Inc., v. Cudahy Packing Co., 256 U.S. 208, 210, 41 S.Ct. 451, 65 L.Ed. 892.
5
Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382, was concerned with the breach of a statutory or regulatory duty and does not control or purport to define the content of nonstatutory or nonregulatory duties amounting to negligence for the purposes of the Federal Employers' Liability Act.
6
'Negligence is sometimes said to be a failure to observe for the protection of the rights of others that degree of care, precaution, and vigilance which the circumstances justly demand, and sometimes, in other words, it is said that negligence is the failure to observe ordinary care, and ordinary care is that degree of care which people of ordinary prudence and sagacity use under the same or similar circumstances. What would ordinarily prudent persons have done under like circumstances?'
7
'The B & O in this case was not required to guard against that which a reasonably prudent person, under the circumstances, would not anticipate as likely to happen. If a person has no reasonable ground to anticipate that a particular condition * * * would or might result in a mishap and injury, then the party is not required to do anything to correct such a condition. You must apply this rule to this case. * * * Defendant's duties are measured by what is reasonably foreseeable under like circumstances. * * * In measuring the B & O's conduct here, the point of view to be taken should be the view before the mishap occurred, to see what, in the light of the facts then known, should or could reasonably have been anticipated. And you must follow this rule in this case.'
8
'If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.' Restatement, Torts, § 435. 'In these and like cases of what well may be called direct consequences, the courts generally hold defendant liable for the full extent of the injury without regard to foreseeability.' 2 Harper and James, Torts, p. 1140. 'There is almost universal agreement upon * * * liability for unforeseeable consequences when they follow an impact upon the person of the plaintiff.' Prosser, Torts, 260.
9
'In measuring the B & O's duty to anticipate—that is, in considering how much and how far the defendant ought to have gone in foreseeing and guarding against possible mishaps and dangers the past experience respecting the location and conditions in question may properly be drawn upon. It is entirely proper in this case to take into account the fact * * * that no occurrence of the kind here alleged either occurred, or was known by defendant to have occurred, at or near this place before August of 1954, as * * * indicating what the defendant should here reasonably have foreseen for the future.'
*
In pertinent part, Rule 19 provides:
'1. A review on writ of certiorari is not a matter of right, but of sound judicial discretion, and will be granted only where there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons which will be considered:
'(a) Where a state court has decided a federal question of substance not theretofore determined by this court, or has decided it in a way probably not in accord with applicable decisions of this court. * * *'
1
Atlantic & Gulf Stevedores, Inc., v. Ellerman Lines, Ltd., 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798, is not to the contrary. In that case it was held that the Court of Appeals had erroneously synthesized a conflict between answers to special interrogatories, when no conflict appeared on the face of the several answers, and none was compelled by the theories underlying the several questions.
2
Indeed, were it proper to indulge in a process of speculation to derive meaning for one answer from the content of others—as the majority does to support its conclusion that the answer to Interrogatory No. 16 is the overriding one—support for preferring the answer to Interrogatory No. 20 and entering judgment for respondent could be gained from the jury's response to Interrogatory No. 13, wherein it could not agree on whether petitioner had been furnished an unsafe place to work, thereby further contradicting the existence of negligence which was found in answer to Interrogatory No. 16.
3
Reference to the court's oral instructions to the jury concerning Interrogatories Nos. 16 and 20 additionally negatives the Court's attempted reconciliation of the jury's answers to these questions. The description of negligence in No. 16 was merely a statement cast in terms of a 'failure to observe ordinary care,' without any suggestion that the 'failure to observe for the protection of the rights of others that degree of care, precaution, and vigilance which the circumstances justly demand' had to be a failure in relation to this plaintiff. In contrast to the negligence in the abstract which the jury can be said to have found in answer to Interrogatory No. 16, the judge instructed with reference to Interrogatory No. 20 that 'In answering this question you are instructed that it is a matter of law (that) the defendant B & O is only to be held to a reasonable degree of care, and not to the performance of practicable impossibilities, but that where the proofs justify with reason the conclusion that the employer's negligence played any part, even the slightest, introducing (sic in producing?) the injury, then the employer has a duty to anticipate that such injury would or might probably result.' This instruction dealt with the defendant railroad's duties as an employer in relation to the petitioner in a manner which the instruction concerning Interrogatory No. 16 had not. Moreover, it was, if anything, unduly favorable to petitioner in its equation of foreseeability with causation in fact, and yet the jury answered Interrogatory No. 20 in the negative.
| 78
|
372 U.S. 39
83 S.Ct. 623
9 L.Ed.2d 570
UNITED STATES, Petitioner,v.Don GILMORE et al.
No. 21.
Reargued Dec. 5, 6, 1962.
Decided Feb. 18, 1963.
Wayne G. Barnett, Washington, D.C., for petitioner.
Eli Freed, San Francisco, Cal., for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
In 1955 the California Supreme Court confirmed the award to the respondent taxpayer of a decree of absolute divorce, without alimony, against his wife Dixie Gilmore.1 Gilmore v. Gilmore, 45 Cal.2d 142, 287 P.2d 769. The case before us involves the deductibility for federal income tax purposes of that part of the husband's legal expense incurred in such proceedings as is attributable to his successful resistance of his wife's claims to certain of his assets asserted by her to be community property under California law.2 The claim to such deduction, which has been upheld by the Court of Claims, 290 F.2d 942, is founded on § 23(a)(2) of the Internal Revenue Code of 1939, 26 U.S.C. (1952 ed.) § 23(a)(2), which allows as deductions from gross income
2
'* * * ordinary and necessary expenses * * * incurred during the taxable year3 * * * for the * * * conservation * * * of property held for the production of income.'
3
Because of a conflict of views among the Court of Claims, the Courts of Appeals, and the Tax Court regarding the proper application of this provision,4 and the continuing importance of the question in the administration of the federal income tax laws, we granted certiorari on the Government's petition. 368 U.S. 816, 82 S.Ct. 57, 7 L.Ed.2d 22. The case was first argued at the last Term and set for reargument at this one. 369 U.S. 835, 82 S.Ct. 864, 7 L.Ed.2d 841.
4
At the time of the divorce proceedings, instituted by the wife but in which the husband also cross-claimed for divorce, respondent's property consisted primarily of controlling stock interests in three corporations, each of which was a franchised General Motors automobile dealer.5 As president and principal managing officer of the three corporations, he received salaries from them aggregating about $66,800 annually, and in recent years his total annual dividends had averaged about $83,000. His total annual income derived from the corporations was thus approximately $150,000. His income from other sources was negligible.6
5
As found by the Court of Claims, the husband's overriding concern in the divorce litigation was to protect these assets against the claims of his wife. Those claims had two aspects: first, that the earnings accumulated and retained by these three corporations during the Gilmores' marriage (representing an aggregate increase in corporate net worth of some $600,000) were the product of respondent's personal services, and not the result of accretion in capital values, thus rendering respondent's stockholdings in the enterprises pro tanto community property under California law;7 second, that to the extent that such stockholdings were community property, the wife, allegedly the innocent party in the divorce proceeding, was entitled under California law to more than a one-half interest in such property.8
6
The respondent wished to defeat those claims for two important reasons. First, the loss of his controlling stock interests, particularly in the event of their transfer in substantial part to his hostile wife, might well cost him the loss of his corporate positions, his principal means of livelihood. Second, there was also danger that if he were found guilty of his wife's sensational and reputation-damaging charges of marital infidelity, General Motors Corporation might find it expedient to exercise its right to cancel these dealer franchises.
7
The end result of this bitterly fought divorce case was a complete victory for the husband. He, not the wife, was granted a divorce on his cross-claim; the wife's community property claims were denied in their entirety; and she was held entitled to no alimony. 45 Cal.2d 142, 287 P.2d 769.
8
Respondent's legal expenses in connection with this litigation amounted to $32,537.15 in 1953 and $8,074.21 in 1954—a total of $40,611.36 for the two taxable years in question. The Commissioner of Internal Revenue found all of these expenditures 'personal' or 'family' expenses and as such none of them deductible. 26 U.S.C. (1952 ed.) s 24(a)(1).9 In the ensuing refund suit, however, the Court of Claims held that 80% of such expense (some $32,500) was attributable to respondent's defense against his wife's community property claims respecting his stockholdings and hence deductible under § 23(a)(2) of the 1939 Code as an expense 'incurred * * * for the * * * conservation * * * of property held for the production of income.' In so holding the Court of Claims stated:
9
'Of course it is true that in every divorce case a certain amount of the legal expenses are incurred for the purpose of obtaining the divorce and a certain amount are incurred in an effort to conserve the estate and are not necessarily deductible under section 23(a)(2), but when the facts of a particular case clearly indicate (as here) that the property, around which the controversy evolves, is held for the production of income and without this property the litigant might be denied not only the property itself but the means of earning a livelihood, then it must come under the provisions of section 23(a)(2) * * *. The only question then is the allocation of the expenses to this phase of the proceedings.'10 290 F.2d, at 947.
10
The Government does not question the amount or formula for the expense allocation made by the Court of Claims. Its sole contention here is that the court below misconceived the test governing § 23(a)(2) deductions, in that the deductibility of these expenses turns, so it is argued, not upon the consequences to respondent of a failure to defeat his wife's community property claims but upon the origin and nature of the claims themselves. So viewing Dixie Gilmore's claims, whether relating to the existence or division of community property, it is contended that the expense of resisting them must be deemed nondeductible 'personal' or 'family' expense under § 24(a)(1), not deductible expense under § 23(a)(2). For reasons given hereafter we think the Government's position is sound and that it must be sustained.
I.
11
For income tax purposes Congress has seen fit to regard an individual as having two personalities: 'one is (as) a seeker after profit who can deduct the expenses incurred in that search; the other is (as) a creature satisfying his needs as a human and those of his family but who cannot deduct such consumption and related expenditures.'11 The Government regards § 23(a)(2) as embodying a category of the expenses embraced in the first of these roles.
12
Initially, it may be observed that the wording of § 23(a)(2) more readily fits the Government's view of the provision than that of the Court of Claims. For in context 'conservation of property' seems to refer to operations performed with respect to the property itself, such as safeguarding or unkeep, rather than to a taxpayer's retention of ownership in it.12 But more illuminating than the mere language of § 23(a)(2) is the history of the provision.
13
Prior to 1942 § 23 allowed deductions only for expenses incurred 'in carrying on any trade or business,' the deduction presently authorized by § 23(a)(1). In Higgins v. Commissioner, 312 U.S. 212, 61 S.Ct. 475, 85 L.Ed. 783, this Court gave that provision a narrow construction, holding that the activities of an individual in supervising his own securities investments did not constitute the 'carrying on of trade or business', and hence that expenses incurred in connection with such activities were not tax deductible. Similar results were reached in United States v. Pyne, 313 U.S. 127, 61 S.Ct. 893, 85 L.Ed. 1231, and City Bank Farmers Trust Co. v. Helvering, 313 U.S. 121, 61 S.Ct. 896, 85 L.Ed. 1227. The Revenue Act of 1942 (56 Stat. 798, § 121), by adding what is now § 23(a)(2), sought to remedy the inequity inherent in the disallowance of expense deductions in respect of such profit-seeking activities, the income from which was nonetheless taxable.13
14
As noted in McDonald v. Commissioner, 323 U.S. 57, 62, 65 S.Ct. 96, 98, 89 L.Ed. 68, the purpose of the 1942 amendment was merely to enlarge 'the category of incomes with reference to which expenses were deductible.' And committee reports make clear that deductions under the new section were subject to the same limitations and restrictions that are applicable to those allowable under § 23(a)(1).14 Further, this Court has said that § 23(a)(2) 'is comparable and in pari materia with § 23(a)(1),' providing for a class of deductions 'coextensive with the business deductions allowed by § 23(a)(1), except for' the requirement that the income-producing activity qualify as a trade or business. Trust of Bingham v. Commissioner, 325 U.S. 365, 373, 374, 65 S.Ct. 1232, 1237, 89 L.Ed. 1670.
15
A basic restriction upon the availability of a § 23(a)(1) deduction is that the expense item involved must be one that has a business origin. That restriction not only inheres in the language of § 23(a)(1) itself, confining such deductions to 'expenses * * * incurred * * * in carrying on any trade or business,' but also follows from § 24(a)(1), expressly rendering nondeductible 'in any case * * * (p)ersonal, living, or family expenses.' See note 9, supra. In light of what has already been said with respect to the advent and thrust of § 23(a)(2), it is clear that the '(p)ersonal * * * or family expenses' restriction of § 24(a)(1) must impose the same limitation upon the reach of § 23(a)(2)—in other words that the only kind of expenses deductible under § 23(a)(2) are those that relate to a 'business,' that is, profit-seeking, purpose. The pivotal issue in this case then becomes: was this part of respondent's litigation costs a 'business' rather than a 'personal' or 'family' expense?
16
The answer to this question has already been indicated in prior cases. In Lykes v. United States, 343 U.S. 118, 72 S.Ct. 585, 96 L.Ed. 791, the Court rejected the contention that legal expenses incurred in contesting the assessment of a gift tax liability were deductible. The taxpayer argued that if he had been required to pay the original deficiency he would have been forced to liquidate his stockholdings, which were his main source of income, and that his legal expenses were therefore incurred in the 'conservation' of income-producing property and hence deductible under § 23(a)(2). The Court first noted that the 'deductibility (of the expenses) turns wholly upon the nature of the activities to which they relate' (343 U.S., at 123, 72 S.Ct., at 588, 96 L.Ed. 791), and then stated:
17
'Legal expenses do not become deductible merely because they are paid for services which relieve a taxpayer of liability. That argument would carry us too far. It would mean that the expense of defending almost any claim would be deductible by a taxpayer on the ground that such defense was made to help him keep clear of liens whatever incomeproducing property he might have. For example, it suggests that the expense of defending an action based upon personal injuries caused by a taxpayer's negligence while driving an automobile for pleasure should be deductible. Section 23(a)(2) never has been so interpreted by us. * * *
18
'While the threatened deficiency assessment * * * added urgency to petitioner's resistance of it, neither its size nor its urgency determined its character. It related to the tax payable on petitioner's gifts * * *. The expense of contesting the amount of the deficiency was thus at all times attributable to the gifts, as such, and accordingly was not deductible.
19
'If, as suggested, the relative size of each claim, in proportion to the income-producing resources of a defendant, were to be a touchstone of the deductibility of the expense of resisting the claim, substantial uncertainty and inequity would inhere in the rule. * * * It is not a ground for (deduction) that the claim, if justified, will consume income-producing property of the defendant.' 343 U.S., at 125 126, 72 S.Ct., at 589, 590, 96 L.Ed. 791.
20
In Kornhauser v. United States, 276 U.S. 145, 48 S.Ct. 219, 72 L.Ed. 505, this Court considered the deductibility of legal expenses incurred by a taxpayer in defending against a claim by a former business partner that fees paid to the taxpayer were for services rendered during the existence of the partnership. In holding that these expenses were deductible even though the taxpayer was no longer a partner at the time of suit, the Court formulated the rule that 'where a suit or action against a taxpayer is directly connected with, or * * * proximately resulted from, his business, the expense incurred is a business expense * * *.' 276 U.S., at 153, 48 S.Ct., at 220, 72 L.Ed. 505. Similarly, in a case involving an expense incurred in satisfying an obligation (though not a litigation expense), it was said that 'it is the origin of the liability out of which the expense accrues' or 'the kind of transaction out of which the obligation arose * * * which (is) crucial and controlling.' Deputy v. du Pont, 308 U.S. 488, 494, 496, 60 S.Ct. 363, 366, 367, 368, 84 L.Ed. 416.
21
The principle we derive from these cases is that the characterization, as 'business' or 'personal,' of the litigation costs of resisting a claim depends on whether or not the claim arises in connection with the taxpayer's profit-seeking activities. It does not depend on the consequences that might result to a taxpayer's income-producing property from a failure to defeat the claim, for, as Lykes teaches, that 'would carry us too far'15 and would not be compatible with the basic lines of expense deductibility drawn by Congress.16 Moreover, such a rule would lead to capricious results. If two taxpayers are each sued for an automobile accident while driving for pleasure, deductibility of their litigation costs would turn on the mere circumstance of the character of the assets each happened to possess, that is, whether the judgments against them stood to be satisfied out of income- or nonincome-producing property. We should be slow to attribute to Congress a purpose producing such unequal treatment among taxpayers, resting on no rational foundation.
22
Confirmation of these conclusions is found in the incongruities that would follow from acceptance of the Court of Claims' reasoning in this case. Had this respondent taxpayer conducted his automobile-dealer business as a sole proprietorship, rather than in corporate form, and claimed a deduction under § 23(a)(1),17 the potential impact of his wife's claims would have been no different than in the present situation. Yet it cannot well be supposed that § 23(a)(1) would have afforded him a deduction, since his expenditures, made in connection with a marital litigation, could hardly be deemed 'expenses * * ncurred * * * in carrying on any trade or business.' Thus, under the Court of Claims' view expenses may be even less deductible if the taxpayer is carrying on a trade or business instead of some other income-producing activity. But it was manifestly Congress' purpose with respect to deductibility to place all income-producing activities on an equal footing. And it would surely be a surprising result were it now to turn out that a change designed to achieve equality of treatment in fact had served only to reverse the inequality of treatment.
23
For these reasons, we resolve the conflict among the lower courts on the question before us (note 4, supra) in favor of the view that the origin and character of the claim with respect to which an expense was incurred, rather than its potential consequences upon the fortunes of the taxpayer, is the controlling basic test of whether the expense was 'business' or 'personal' and hence whether it is deductible or not under § 23(a)(2). We find the reasoning underlying the cases taking the 'consequences' view unpersuasive.
24
Baer v. Commissioner, 8 Cir., 196 F.2d 646, upon which the Court of Claims relied in the present case, is the leading authority on that side of the question.18 There the Court of Appeals for the Eighth Circuit allowed a § 23(a)(2) expense deduction to a taxpayer husband with respect to attorney's fees paid in a divorce proceeding in connection with an alimony settlement which had the effect of preserving intact for the husband his controlling stock interest in a corporation, his principal source of livelihood. The court reasoned that since the evidence showed that the taxpayer was relatively unconcerned about the divorce itself '(t)he controversy did not go to the question of * * * (his) liability (for alimony)19 but to the manner in which (that liability) might be met * * * without greatly disturbing his financial structure'; therefore the legal services were 'for the purpose of conserving and maintaining' his income-producing property. 196 F.2d, at 649—650, 651.
25
It is difficult to perceive any significant difference between the 'question of liability' and 'the manner' of its discharge, for in both instances the husband's purpose is to avoid losing valuable property. Indeed most of the cases which have followed Baer have placed little reliance on that distinction, and have tended to confine the deduction to situations where the wife's alimony claims, if successful, might have completely destroyed the husband's capacity to earn a living.20 Such may be the situation where loss of control of a particular corporation is threatened, in contrast to instances where the impact of a wife's support claims is only upon diversified holdings of income-producing securities.21 But that rationale too is unsatisfactory. For diversified security holdings are no less 'property held for the production of income' than a large block of stock in a single company. And as was pointed out in Lykes, supra, 343 U.S. at 126, 72 S.Ct. at 589, 590, 96 L.Ed. 791, if the relative impact of a claim on the income-producing resources of a taxpayer were to determine deductibility, substantial 'uncertainty and inequity would inhere in the rule.'
26
We turn then to the determinative question in this case: did the wife's claims respecting respondent's stockholdings arise in connection with his profit-seeking activities?
II.
27
In classifying respondent's legal expenses the court below did not distinguish between those relating to the claims of the wife with respect to the existence of community property and those involving the division of any such property. Supra, p. 41-42. Nor is such a break-down necessary for a disposition of the present case. It is enough to say that in both aspects the wife's claims stemmed entirely from the marital relationship, and not, under any tenable view of things, from income-producing activity. This is obviously so as regards the claim to more than an equal division of any community property found to exist. For any such right depended entirely on the wife's making good her charges of marital infidelity on the part of the husband. The same conclusion is no less true respecting the claim relating to the existence of community property. For no such property could have existed but for the marriage relationship.22 Thus none of respondent's expenditures in resisting these claims can be deemed 'business' expenses, and they are therefore not deductible under § 23(a)(2).
28
In view of this conclusion it is unnecessary to consider the further question suggested by the Government: whether that portion of respondent's payments attributable to litigating the issue of the existence of community property was a capital expenditure or a personal expense. In neither event would these payments be deductible from gross income.
29
The judgment of the Court of Claims is reversed and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered.
30
Judgment of Court of Claims reversed and case remanded.
31
Mr. Justice BLACK and Mr. Justice DOUGLAS believe that the Court reverses this case because of an unjustifiably narrow interpretation of the 1942 amendment to § 23 of the Internal Revenue Code and would accordingly affirm the judgment of the Court of Claims.
1
Despite the divorce, Dixie Gilmore is referred to throughout this opinion as the 'wife.'
2
Although the second Mrs. Gilmore, having been a party to one of the tax returns involved in this case, is also a respondent here, Mr. Gilmore will be referred to herein as the sole respondent.
3
The taxable years in question are 1953 and 1954. The year 1954 is governed by the 1954 Code. Since the relevant provisions, §§ 212 and 262, are substantially identical with those of the 1939 Code, for the sake of clarity we shall refer only to the 1939 Code.
4
Compare Lewis v. Commissioner, 253 F.2d 821 (C.A.2d Cir.), and Douglas v. Commissioner, 33 T.C. 349, with Gilmore v. United States, 290 F.2d 942 (Ct.Cl.)—the present case—and Baer v. Commissioner, 196 F.2d 646 (C.A.8th Cir.).
5
He owned 100% of the outstanding stock of Don Gilmore-San Francisco, 73 1/3% of the outstanding stock of Don Gilmore-Hayward, and 60% of the outstanding stock of Don Gilmore-Riverside.
6
$1,024.90 in 1953, and $516.60 in 1954.
7
See Pereira v. Pereira, 156 Cal. 1, 103 P. 488, 23 L.R.A.,N.S., 880; Lenninger v. Lenninger, 167 Cal. 297, 139 P. 679; Huber v. Huber, 27 Cal.2d 784, 167 P.2d 708.
8
Under California law a party granted a divorce on grounds of extreme cruelty or adultery may, in the court's discretion, be awarded up to all of the community property of the marriage. Cal.Civ.Code, § 146. See Barham v. Barham, 33 Cal.2d 416, 202 P.2d 289; Wilson v. Wilson, 159 Cal.App.2d 330, 323 P.2d 1017. Such grounds for divorce were alleged by each of these spouses against the other.
9
Section 24(a)(1) provides: 'In computing net income no deduction shall in any case be allowed in respect of—(1) Personal, living, or family expenses * * *.'
10
Several other issues involving deficiency assessments for the years 1953, 1954, and 1955 were decided by the Court of Claims, but they are not before this Court.
11
Surrey and Warren, Cases on Federal Income Taxation, 272 (1960).
12
See 4 Mertens, Law of Federal Income Taxation (rev. ed. 1960), § 25A.09, at 19—20.
13
See H.R.Rep. No. 2333, 77th Cong., 2d Sess. 46.
14
H.R.Rep. No. 2333, 77th Cong., 2d Sess. 75: 'A deduction under this section is subject, except for the requirement of being incurred in connection with a trade or business, to all the restrictions and limitations that apply in the case of the deduction under section 23(a)(1)(A) of an expense paid or incurred in carrying on any trade or business.' See also S.Rep. No. 1631, 77th Cong., 2d Sess. 88.
15
The Treasury Regulations have long provided: 'An expense (not otherwise deductible) paid or incurred by an individual in determining or contesting a liability asserted against him does not become deductible by reason of the fact that property held by him for the production of income may be required to be used or sold for the purpose of satisfying such liability.' Treas.Reg. (1954 Code) § 1.212—1(m); see Treas.Reg. 118 (1939 Code) § 39.23(a)—15(k).
16
Expenses of contesting tax liabilities are now deductible under § 212(3) of the 1954 Code. This provision merely represents a policy judgment as to a particular class of expenditures otherwise non-deductible, like extraordinary medical expenses, and does not cast any doubt on the basic tax structure set up by Congress.
17
We find no indication that Congress intended § 23(a)(2) to include such expenses.
18
Besides the present case see to the same effect, e.g., Patrick v. United States, 288 F.2d 292 (C.A.4th Cir.), No. 22, reversed today, 372 U.S. 53, 83 S.Ct. 618; Owens v. Commissioner, 273 F.2d 251 (C.A.5th Cir.); Bowers v. Commissioner, 243 F.2d 904 (C.A.6th Cir.); McMurtry v. United States, 132 F.Supp. 114, 132 Ct.Cl. 418.
19
Expenses incurred in divorce litigation have generally been held to be nondeductible. See, e.g., Richardson v. Commissioner, 234 F.2d 248 (C.A.4th Cir.); Smith's Estate v. Commissioner, 208 F.2d 349 (C.A.3d Cir.); Joyce v. Commissioner, 3 B.T.A. 393. See also Treas.Reg. (1954 Code) § 1.262—1(b)(7): 'Generally, attorney's fees and other costs paid in connection with a divorce, separation, or decree for support are not deductible by either the husband or the wife.'
20
See, e.g., the present case, 290 F.2d, at 947; Tressler v. Commissioner, 228 F.2d 356, 361 (C.A.9th Cir.); Howard v. Commissioner, 202 F.2d 28, 30 (C.A.9th Cir.).
21
Compare, with the present case, Davis v. United States, 287 F.2d 168, 152 Ct.Cl. 805, reversed in part on other grounds, 370 U.S. 65, 82 S.Ct. 1190, 8 L.Ed.2d 335, in which the Court of Claims held to be nondeductible the legal expenses of resisting the wife's threat to stock not essential to protect the husband's employment.
22
The respondent's attempted analogy of a marital 'partnership' to the business partnership involved in the Kornhauser case, supra, is of course unavailing. The marriage relationship can hardly be deemed an income-producing activity.
| 1112
|
372 U.S. 248
83 S.Ct. 690
9 L.Ed.2d 711
John E. HARRISON, Sr.v.MISSOURI PACIFIC RAILROAD CO.
No. 690.
Decided Feb. 25, 1963.
PER CURIAM.
1
The petition for writ of certiorari is granted. The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
2
The petitioner, a section foreman for respondent railroad, was assaulted by one of his section gang whom he accused of stealing a ballast fork. In this action under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., the petitioner was awarded damages by a jury in the Circuit Court of St. Clair County, Illinois. The trial judge set aside the verdict and granted respondent's motion for judgment notwithstanding the verdict. The Appellate Court affirmed, 35 Ill.App.2d 66, 181 N.E.2d 737. Its judgment became final when the Illinois Supreme Court denied petitioner leave to appeal. Ill.Rev.Stat., 1961, c. 110, § 75.
3
The trial judge granted respondent's motion on the ground that 'there was a lack of evidence to sustain' the jury's verdict. The Appellate Court, in affirming, held that there was no evidence sufficient to support a finding that the respondent knew or should have known prior to the assault of propensities of the assailant to commit such assaults.
4
We think that the Illinois courts improperly invaded the function and province of the jury in this case. While '* * * reasonable foreseeability of harm is an essential ingredient of Federal Employers' Liability Act negligence,' Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, at 117, 83 S.Ct. 659, at 665, we have held that the fact that 'the foreseeable danger was from intentional or criminal misconduct is irrelevant; respondent nonetheless had a duty to make reasonable provision against it.' Lillie v. Thompson, 332 U.S. 459, 462, 68 S.Ct. 140, 142, 92 L.Ed. 73. The petitioner's evidence was that his immediate superior, a roadmaster, assigned the assailant to petitioner's crew and at the time warned him: 'You will have to watch him because he is a bad actor and a trouble maker. You will have to watch him.' He also testified to having several times complained to the roadmaster about the assailant's misconduct and refusal to follow his orders during the two moths the assailant was with his crew. Finally, he testified that after the assault the roadmaster said to him: 'I told you to look out for him. Now you got yourself in plenty of trouble.' This testimony was disputed but, if believed by the jury, it constituted probative facts sufficient to support the jury's finding of foreseeability and withstand the respondent's motion. McBride v. Toledo Terminal R. Co., 354 U.S. 517, 77 S.Ct. 1398, 1 L.Ed.2d 1534; Ringhiser v. Chesapeake & O.R. Co., 354 U.S. 901, 77 S.Ct. 1093, 1 L.Ed.2d 1268; see also Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493.
5
Judgment reversed and cause remanded.
6
Mr. Justice HARLAN and Mr. Justice STEWART would deny certiorari. See dissenting opinion of Frankfurter, J., and separate opinion of Harlan, J., in Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 524, 559, 77 S.Ct. 443, 459, 1 L.Ed.2d 493; concurring opinion of Stewart, J., in Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 111, 80 S.Ct. 173, 4 L.Ed.2d 142; dissenting opinion of Harlan, J., in Gallick v. Baltimore & Ohio R. Co., 372 U.S. 122, 83 S.Ct. 668. The case having been taken, however, they concur in the judgment of the Court, 352 U.S., at 559—562, 77 S.Ct., at 478—480, 1 L.Ed.2d 493; 361 U.S., at 111, 80 S.Ct., at 176, 4 L.Ed.2d 142.
| 78
|
372 U.S. 229
83 S.Ct. 680
9 L.Ed.2d 697
James EDWARDS, Jr., et al., Petitioners,v.SOUTH CAROLINA.
No. 86.
Argued Dec. 13, 1962.
Decided Feb. 25, 1963.
Jack Greenberg, for petitioner.
Daniel R. McLeod, Columbia, S.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioners, 187 in number, were convicted in a magistrate's court in Columbia, South Carolina, of the commonlaw crime of breach of the peace. Their convictions were ultimately affirmed by the South Carolina Supreme Court, 239 S.C. 339, 123 S.E.id 247. We granted certiorari, 369 U.S. 870, 82 S.Ct. 1141, 8 L.Ed.2d 274, to consider the claim that these convictions cannot be squared with the Fourteenth Amendment of the United States Constitution.
2
There was no substantial conflict in the trial evidence.1 Late in the morning of March 2, 1961, the petitioners, high school and college students of the Negro race, met at the Zion Baptist Church in Columbia. From there, at about noon, they walked in separate groups of about 15 to the South Carolina State House grounds, an area of two city blocks open to the general public. Their purpose was 'to submit a protest to the citizens of South Carolina, along with the Legislative Bodies of South Carolina, our feelings and our dissatisfaction with the present condition of discriminatory actions against Negroes, in general, and to let them know that we were dissatisfied and that we would like for the laws which prohibited Negro privileges in this State to be removed.'
3
Already on the State House grounds when the petitioners arrived were 30 or more law enforcement officers, who had advance knowledge that the petitioners were coming.2 Each group of petitioners entered the grounds through a driveway and parking area known in the record as the 'horseshoe.' As they entered, they were told by the law enforcement officials that 'they had a right, as a citizen, to go through the State House grounds, as any other citizen has, as long as they were peaceful.' During the next half hour or 45 minutes, the petitioners, in the same small groups, walked single file or two abreast in an orderly way3 through the grounds, each group carrying placards bearing such messages as 'I am proud to be a Negro' and 'Down with segregation.'
4
During this time a crowd of some 200 to 300 onlookers had collected in the horseshoe area and on the adjacent sidewalks. There was no evidence to suggest that these onlookers were anything but curious, and no evidence at all of any threatening remarks, hostile gestures, or offensive language on the part of any member of the crowd. The City Manager testified that he recognized some of the onlookers, whom he did not identify, as 'possible trouble makers,' but his subsequent testimony made clear that nobody among the crowd actually caused or threatened any trouble.4 There was no obstruction of pedestrian or vehicular traffic within the State House grounds.5 No vehicle was prevented from entering or leaving the horseshoe area. Although vehicular traffic at a nearby street intersection was slowed down somewhat, an officer was dispatched to keep traffic moving. There were a number of bystanders on the public sidewalks adjacent to the State House grounds, but they all moved on when asked to do so, and there was no impediment of pedestrian traffic.6 Police protection at the scene was at all times sufficient to meet any foreseeable possibility of disorder.7
5
In the situation and under the circumstances thus described, the police authorities advised the petitioners that they would be arrested if they did not disperse within 15 minutes.8 Instead of dispersing, the petitioners engaged in what the City Manager described as 'boisterous,' 'loud,' and 'flamboyant' conduct, which, as his later testimony made clear, consisted of listening to a 'religious harangue' by one of their leaders, and loudly singing 'The Star Spangled Banner' and other patriotic and religious songs, while stamping their feet and clapping their hands. After 15 minutes had passed, the police arrested the petitioners and marched them off to jail.9
6
Upon this evidence the state trial court convicted the petitioners of breach of the peace, and imposed sentences ranging from a $10 fine or five days in jail, to a $100 fine or 30 days in jail. In affirming the judgments, the Supreme Court of South Carolina said that under the law of that State the offense of breach of the peace 'is not susceptible of exact definition,' but that the 'general definition of the offense' is as follows:
7
'In general terms, a breach of the peace is a violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence * * *, it includes any violation of any law enacted to preserve peace and good order. It may consist of an act of violence or an act likely to produce violence. It is not necessary that the peace be actually broken to lay the foundation for a prosecution for this offense. If what is done is unjustifiable and unlawful, tending with sufficient directness to break the peace, no more is required. Nor is actual personal violence an essential element in the offense. * * *
8
'By 'peace,' as used in the law in this connection, is meant the tranquility enjoyed by citizens of a municipality or community where good order reigns among its members, which is the natural right of all persons in political society.' 239 S.C., at 343—344, 123 S.E.2d, at 249.
9
The petitioners contend that there was a complete absence of any evidence of the commission of this offense, and that they were thus denied one of the most basic elements of due process of law. Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654; see Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207; Taylor v. Louisiana, 370 U.S. 154, 82 S.Ct. 1188, 8 L.Ed.2d 395. Whatever the merits of this contention, we need not pass upon it in the present case. The state courts have held that the petitioners' conduct constituted breach of the peace under state law, and we may accept their decision as binding upon us to that extent. But it nevertheless remains our duty in a case such as this to make an independent examination of the whole record. Blackburn v. Alabama, 361 U.S. 199, 205, n. 5, 80 S.Ct. 274, 279, 4 L.Ed.2d 242; Pennekamp v. Florida, 328 U.S. 331, 335, 66 S.Ct. 1029, 1031, 90 L.Ed. 1295; Fiske v. Kansas, 274 U.S. 380, 385—386, 47 S.Ct. 655, 656—657, 71 L.Ed. 1108. And it is clear to us that in arresting, convicting, and punishing the petitioners under the circumstances disclosed by this record, South Carolina infringed the petitioners' constitutionally protected rights of free speech, free assembly, and freedom to petition for redress of their grievances.
10
It has long been established that these First Amendment freedoms are protected by the Fourteenth Amendment from invasion by the States. Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138; Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095; Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213. The circumstances in this case reflect an exercise of these basic constitutional rights in their most pristine and classic form. The petitioners felt aggrieved by laws of South Carolina which allegedly 'prohibited Negro privileges in this State.' They peaceably assembled at the site of the State Government10 and there peaceably expressed their grievances 'to the citizens of South Carolina, along with the Legislative Bodies of South Carolina.' Not until they were told by police officials that they must disperse on pain of arrest did they do more. Even then, they but sang patriotic and religious songs after one of their leaders had delivered a 'religious harangue.' There was no violence or threat of violence on their part, or on the part of any member of the crowd watching them. Police protection was 'ample.'
11
This, therefore, was a far cry from the situation in Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295, where two policemen were faced with a crowd which was 'pushing, shoving and milling around,' id., at 317, 71 S.Ct. at 305, where at least one member of the crowd 'threatened violence if the police did not act,' id., at 317, 71 S.Ct. at 305, where 'the crowd was pressing closer around petitioner and the officer,' id., at 318, 71 S.Ct. at 305, and where 'the speaker passes the bounds of argument or persuasion and undertakes incitement to riot.' Id., at 321, 71 S.Ct. at 306. And the record is barren of any evidence of 'fighting words.' See Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031.
12
We do not review in this case criminal convictions resulting from the evenhanded application of a precise and narrowly drawn regulatory statute evincing a legislative judgment that certain specific conduct be limited or proscribed. If, for example, the petitioners had been convicted upon evidence that they had violated a law regulating traffic, or had disobeyed a law reasonably limiting the periods during which the State House grounds were open to the public, this would be a different case.11 See Cantwell v. Connecticut, 310 U.S. 296, 307—308, 60 S.Ct. 900, 904—905, 84 L.Ed. 1213; Garner v. Louisiana, 368 U.S. 157, 202, 82 S.Ct. 248, 271, 7 L.Ed.2d 207 (concurring opinion). These petitioners were convicted of an offense so generalized as to be, in the words of the South Carolina Supreme Court, 'not susceptible of exact definition.' And they were convicted upon evidence which showed no more than that the opinions which they were peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection.
13
The Fourteenth Amendment does not permit a State to make criminal the peaceful expression of unpopular views. '(A) function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech * * * is * * * protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. * * * There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.' Terminiello v. Chicago, 337 U.S. 1, 4—5, 69 S.Ct. 894, 896, 93 L.Ed. 1131. As in the Terminiello case, the courts of South Carolina have defined a criminal offense so as to permit conviction of the petitioners if their speech 'stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand.' Id., at 5, 69 S.Ct., at 896.
14
As Chief Justice Hughes wrote in Stromberg v. California, '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. * * *' 283 U.S. 359, 369, 51 S.Ct. 532, 536, 75 L.Ed. 1117.
15
For these reasons we conclude that these criminal convictions cannot stand.
16
Reversed.
17
Mr. Justice CLARK, dissenting.
18
The convictions of the petitioners, Negro high school and college students, for breach of the peace under South Carolina law are accepted by the Court 'as binding upon us to that extent' but are held violative of 'petitioners' constitutionally protected rights of free speech, free assembly, and freedom to petition for redress of their grievances.' Petitioners, of course, had a right to peaceable assembly, to espouse their cause and to petition, but in my view the manner in which they exercised those rights was by no means the passive demonstration which this Court relates; rather, as the City Manager of Columbia testified, 'a dangerous situation was really building up' which South Carolina's courts expressly found had created 'an actual interference with traffic and an imminently threatened disturbance of the peace of the community.'1 Since the Court does not attack the state courts' findings and accepts the convictions as 'binding' to the extent that the petitioners' conduct constituted a breach of the peace, it is difficult for me to understand its understatement of the facts and reversal of the convictions.
19
The priceless character of First Amendment freedoms cannot be gainsaid, but it does not follow that they are absolutes immune from necessary state action reasonably designed for the protection of society. See Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940); Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939). For that reason it is our duty to consider the context in which the arrests here were made. Certainly the city officials would be constitutionally prohibited from refusing petitioners access to the State House grounds merely because they disagreed with their views. See Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 328, 95 L.Ed. 267, 280 (1951). But here South Carolina's courts have found: 'There is no indication whatever in this case that the acts of the police officers were taken as a subterfuge or excuse for the suppression of the appellants' views and opinions.'2 It is undisputed that the city officials specifically granted petitioners permission to assemble, imposing only the requirement that they be 'peaceful.' Petitioners then gathered on the State House grounds, during a General Assembly session, in a large number of almost 200, marching and carrying placards with slogans such as 'Down with segregation' and 'You may jail our bodies but not our souls.' Some of them were singing.
20
The activity continued for approximately 45 minutes, during the busy noon-hour period, while a crowd of some 300 persons congregated in front of the State House and around the area directly in front of its entrance, known as the 'horseshoe,' which was used for vehicular as well as pedestrian ingress and egress. During this time there were no efforts made by the city officials to hinder the petitioners in their rights of free speech and assembly; rather, the police directed their efforts to the traffic problems resulting from petitioners' activities. It was only after the large crowd had gathered, among which the City Manager and Chief of Police recognized potential troublemakers, and which together with the students had become masse don and around the 'horseshoe' so closely that vehicular and pedestrian traffic was materially impeded,3 that any action against the petitioners was taken. Then the City Manager, in what both the state intermediate and Supreme Court found to be the utmost good faith, decided that danger to peace and safety was imminent. Even at this juncture no orders were issued by the City Manager for the police to break up the crowd, now about 500 persons, and no arrests were made. Instead, he approached the recognized leader of the petitioners and requested him to tell the various groups of petitioners to disperse within 15 minutes, failing which they would be arrested. Even though the City Manager might have been honestly mistaken as to the imminence of danger, this was certainly a reasonable request by the city's top executive officer in an effort to avoid a public brawl. But the response of petitioners and their leader was defiance rather than cooperation. The leader immediately moved from group to group among the students, delivering a 'harangue' which, according to testimony in the record, 'aroused (them) to a fever pitch causing this boisterousness, this singing and stomping.'
21
For the next 15 minutes the petitioners sang 'I Shall Not Be Moved' and various religious songs, stamped their feet, clapped their hands, and conducted what the South Carolina Supreme Court found to be a 'noisy demonstration in defiance of (the dispersal) orders.' 239 S.C. 339, 345, 123 S.E.2d 247, 250. Ultimately, the petitioners were arrested, as they apparently planned from the beginning, and convicted on evidence the sufficiency of which the Court does not challenge. The question thus seems to me whether a State is constitutionally prohibited from enforcing laws to prevent breach of the peace in a situation where city officials in good faith believe, and the record shows, that disorder and violence are imminent, merely because the activities constituting that breach contain claimed elements of constitutionally protected speech and assembly. To me the answer under our cases is clearly in the negative.
22
Beginning, as did the South Carolina courts, with the premise that the petitioners were entitled to assemble and voice their dissatisfaction with segregation, the enlargement of constitutional protection for the conduct here is as fallacious as would be the conclusion that free speech necessarily includes the right to broadcast from a sound truck in the public streets. Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949). This Court said in Thornhill v. Alabama, 310 U.S. 88, 105, 60 S.Ct. 736, 745, 84 L.Ed. 1093 (1940), that '(t)he power and the duty of the State to take adequate steps to preserve the peace and to protect the privacy, the lives, and the property of its residents cannot be doubted.' Significantly, in holding that the petitioner's picketing was constitutionally protected in that case the Court took pains to differeniate it from 'picketing en masse or otherwise conducted which might occasion * * * imminent and aggravated danger * * *.' Ibid. Here the petitioners were permitted without hindrance to exercise their rights of free speech and assembly. Their arrests occurred only after a situation arose in which the law-enforcement officials on the scene considered that a dangerous disturbance was imminent.4 The County Court found that '(t)he evidence is clear that the officers were motivated solely by a proper concern for the preservation of order and the protection of the general welfare in the face of an actual interference with traffic and an imminently threatened disturbance of the peace of the community.'5 In affirming, the South Carolina Supreme Court said the action of the police was 'reasonable and motivated solely by a proper concern for the preservation of order and prevention of further interference with traffic upon the public streets and sidewalks.' 239 S.C. 339, at 345, 123 S.E.2d, at 249—250.
23
In Cantwell v. Connecticut, supra, 310 U.S. at 308, 60 S.Ct. at 905, this Court recognized that '(w)hen 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.' And in Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 267 (1951), we upheld a conviction for breach of the peace in a situation no more dangerous than that found here. There the demonstration was conducted by only one person and the crowd was limited to approximately 80, as compared with the present lineup of some 200 demonstrators and 300 onlookers. There the petitioner was 'endeavoring to arouse the Negro people against the whites, urging that they rise up in arms and fight for equal rights.' Id., at 317, 71 S.Ct. at 305. Only one person—in a city having an entirely different historical background—was exhorting adults. Here 200 youthful Negro demonstrators were being aroused to a 'fever pitch' before a crowd of some 300 people who undoubtedly were hostile. Perhaps their speech was not so animated but in this setting their actions, their placards reading 'You may jail our bodies but not our souls' and their chanting of 'I Shall Not Be Moved,' accompanied by stamping feet and clapping hands, created a much greater danger of riot and disorder. It is my belief that anyone conversant with the almost spontaneous combustion in some Southern communities in such a situation will agree that the City Manager's action may well have averted a major catastrophe.
24
The gravity of the danger here surely needs no furthre explication. The imminence of that danger has been emphasized at every stage of this proceeding, from the complaints charging that the demonstrations 'tended directly to immediate violence' to the State Supreme Court's affirmance on the authority of Feiner, supra. This record, then, shows no steps backward from a standard of 'clear and present danger.' But to say that the police may not intervene until the riot has occurred is like keeping out the doctor until the patient dies. I cannot subscribe to such a doctrine. In the words of my Brother Frankfurter:
25
'This Court has often emphasized that in the exercise of our authority over state court decisions the Due Process Clause must not be construed in an abstract and doctrinaire way by disregarding local conditions. * * * It is pertinent, therefore, to note that all members of the New York Court accepted the finding that Feiner was stopped not because the listeners or police officers disagreed with his views but because these officers were honestly concerned with preventing a breach of the peace. * * * 'As was said in Hague v. C.I.O. (307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423), supra, uncontrolled official suppression of the speaker 'cannot be made a substitute for the duty to maintain order'. 307 U.S. at 516, 59 S.Ct. at page 964, 83 L.Ed. 1423. Where conduct is within the allowable limits of free speech, the police are peace officers for the speaker as well as for his hearers. But the power effectively to preserve order cannot be displaced by giving a speaker complete immunity. Here, there were two police officers present for 20 minutes. They interfered only when they apprehended imminence of violence. It is not a constitutional principle that, in acting to preserve order, the police must proceed against the crowd, whatever its size and temper, and not against the (demonstrators).' 340 U.S. 268, at 288—289, 71 S.Ct. 328, at 336, 95 L.Ed. 295 (concurring opinion in Feiner v. New York and other cases decided that day).
26
I would affirm the convictions.
1
The petitioners were tried in groups, at four separate trials. It was stipulated that the appeals be treated as one case.
2
The Police Chief of Columbia testified that about 15 of his men were present, and that there were, in addition, 'some State Highway Patrolmen; there were some South Carolina Law Enforcement officers present and I believe, I'm not positive, I believe there were about three Deputy Sheriffs.'
3
The Police Chief of Columbia testified as follows:
'Q. Did you, Chief, walk around the State House Building with any of these persons?
'A. I did not. I stayed at the horseshoe. I placed men over the grounds.
'Q. Did any of your men make a report that any of these persons were disorderly in walking around the State House Grounds?
'A. They did not.
'Q. Under normal circumstances your men would report to you when you are at the scene?
'A. They should.
'Q. Is it reasonable to assume then that there was no disorderly conduct on the part of these persons, since you received no report from your officers?
'A. I would take that for granted, yes.'
The City Manager testified:
'Q. Were the Negro college students or other students well demeaned? Were they well dressed and were they orderly?
'A. Yes, they were.'
4
'Q. Who were those persons?
'A. I can't tell you who they were. I can tell you they were present in the group. They were recognized as possible trouble makers.
'Q. Did you and your police chief do anything about placing those people under arrest?
'A. No, we had no occasion to place them under arrest.
'Q. Now, sir, you have stated that there were possible trouble makers and your whole testimony has been that, as City Manager, as supervisor of the City Police, your object is to preserve the peace and law and order?
'A. That's right.
'Q. Yet you took no official action against people who were present and possibly might have done some harm to these people?
'A. We took no official action because there was none to be taken. They were not creating a disturbance, those particular people were not at that time doing anything to make trouble but they could have been.'
5
The Police Chief of Columbia testified:
'Q. Each group of students walked along in column of twos?
'A. Sometimes two and I did see some in single-file.
'Q. There was ample room for other persons going in the same direction or the opposite direction to pass on the same sidewalk?
'A. I wouldn't say they were blocking the sidewalk; now, that was through the State House grounds.'
6
The Police Chief of Columbia testified:
'A. At times they blocked the sidewalk and we asked them to move over and they did.
'Q. They obeyed your commands on that?
'A. Yes.
'Q. So that nobody complained that he wanted to use the sidewalk and he could not do it?
'A. I didn't have any complaints on that.'
7
The City Manager testified:
'Q. You had ample time, didn't you, to get ample police protection, if you thought such was needed on the State House grounds, didn't you?
'A. Yes, we did.
'Q. So, if there were not ample police protection there, it was the fault of those persons in charge of the Police Department, wasn't it?
'A. There was ample police protection there.'
8
The City Manager testified:
'Q. Mr. McNayr, what action did you take?
'A. I instructed Dave Carter to tell each of these groups, to call them up and tell each of the groups and the group leaders that they must disperse, they must disperse in the manner which I have already described, that I would give them fifteen minutes from the time of my conversation with him to have them dispersed and, if they were not dispersed, I would direct my Chief of Police to place them under arrest.'
9
The City Manager testified:
'Q. You have already testified, Mr. McNayr, I believe, that you did order these students dispersed within fifteen minutes?
'A. Yes.
'Q. Did they disperse in accordance with your order?
'A. They did not.
'Q. What then occurred?
'A. I then asked Chief of Police Campbell to direct his men to line up the students and march them or place them under arrest and march them to the City Jail and the County Jail.
'Q. They were placed under arrest?
'A. They were placed under arrest.'
10
It was stipulated at trial 'that the State House grounds are occupied by the Executive Branch of the South Carolina government, the Legislative Branch and the Judicial Branch, and that, during the period covered in the warrant in this matter, to wit: March the 2nd, the Legislature of South Carolina was in session.'
11
Section 1—417 of the 1952 Code of Laws of South Carolina (Cum.Supp.1960) provides as follows:
'It shall be unlawful for any person:
'(1) Except State officers and employees and persons having lawful business in the buildings, to use any of the driveways, alleys or parking spaces upon any of the property of the State, bounded by Assembly, Gervais, Bull and Pendleton Streets in Columbia upon any regular weekday, Saturdays and holidays excepted, between the hours of 8:30 a.m. and 5:30 p.m., whenever the buildings are open for business; or
'(2) To park any vehicle except in the spaces and manner marked and designated by the State Budget and Control Board, in cooperation with the Highway Department, or to block or impede traffic through the alleys and driveways.'
The petitioners were not charged with violating this statute, and the record contains no evidence whatever that any police official had this statute in mind when ordering the petitioners to disperse on pain of arrest, or indeed that a charge under this statute could have been sustained by what occurred.
1
Unreported order of the Richland County Court, July 10, 1961, on appeal from the Magistrate's Court of Columbia, South Carolina. The Supreme Court's affirmance of that order, 239 S.C. 339, 123 S.E.2d 247, is now before us on writ of certiorari.
2
Supra, note 1.
3
The City Manager testified as follows:
'Q. Now, with relation, Mr. McNayr, to the sidewalks around the horseshoe and the lane for vehicular traffic, how was the crowd distributed, with regard to those sidewalks and roadways?
'A. Well, the conditions varied from time to time, but at numerous times they were blocked almost completely with probably as many as thirty or forty persons, both on the sidewalks and in the street area. * * *
'Q. Did you observe the pedestrian traffic on the walkway?
'A. Yes, I did.
'Q. What was the condition there?
'A. The condition there was that it was extremely difficult for a pedestrian wanting to get through, to get through. Many of them took to the street area, even to get through the street area or the sidewalk.'
The Chief of Police testified as follows:
'Q. Was the street blocked?
'A. We had to place a traffic man at the intersection of Gervais and Main to handle traffic and pedestrians.
'Q. Was a vehicular traffic lane blocked?
'A. It was, that was in the horseshoe.'
4
The City Manager testified as follows:
'Q. Did you hear any singing, chanting or anything of that nature from the student group?
'A. Yes.
'Q. Describe that as best you can.
'A. With the harangues, which I have just described, witnessed frankly by everyone present and in this area, the students began answering back with shouts. They became boisterous. They stomped their feet. They sang in loud voices to the point where, again, in my judgment, a dangerous situation was really building up.'
The Police Chief testified as follows:
'Q. Chief, you were questioned on cross examination at length about the appearance and orderliness of the student group. Were they orderly at all times?
'A. Not at the last.
'Q. Would you describe the activities at the last?
'A. As I have stated, they were singing and, also, when they were getting certain instructions, they were very loud and boisterous.'
5
Supra, note 1.
| 23
|
372 U.S. 246
83 S.Ct. 688
9 L.Ed.2d 709
NATIONAL MOTOR FREIGHT TRAFFIC ASSOCIATION, INC.,v.UNITED STATES.
No. 479.
Decided Feb. 25, 1963.
PER CURIAM.
1
The petition for rehearing is denied. However, we think we should make clear the basis upon which our per curiam order affirmed the judgment of the District Court. 371 U.S. 223, 83 S.Ct. 311, 9 L.Ed.2d 273. The District Court dismissed appellants' action to set aside an order of the Interstate Commerce Commission on two grounds: (1) that the appellants lacked standing to challenge the Commission's order in the District Court; (2) that the appellants' challenge to the Commission's order was without merit. Our per curiam order affirmed the District Court's judgment insofar as it upheld the validity of the Commission's order on the merits. We disagreed that appellants lacked standing to challenge the Commission's order in the District Court. The appellants are associations of motor carriers, authorized under 49 U.S.C. § 5b, and perform significant functions in the administration of the Interstate Commerce Act, including the representation of member carriers in proceedings before the Commission. Since individual member carriers of appellants will be aggrieved by the Commission's order, and since appellants are proper representatives of the interests of their members, appellants have standing to challenge the validity of the Commission's order in the District Court. See Administrative Procedure Act, 5 U.S.C. § 1009(a); F.C.C. v. Sanders Bros. Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869; N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 459, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488.
2
Petition for rehearing denied.
3
Mr. Justice HARLAN concurs in the denial of the petition for rehearing and in the affirmance of the judgment of the District Court insofar as that judgment refused to set aside the order of the Interstate Commerce Commission. He believes, however, that the question of 'standing' should not be decided without plenary consideration.
4
Mr. Justice STEWART would grant the petition for rehearing.
| 89
|
372 U.S. 284
83 S.Ct. 691
9 L.Ed.2d 759
BROTHERHOOD OF LOCOMOTIVE ENGINEERS et al.v.BALTIMORE & OHIO RAILROAD CO. et al.
No. 730.
March 4, 1963.
PER CURIAM.
1
Certiorari is granted and the judgment of the Court of Appeals is affirmed for the reasons stated in this opinion.
2
The petitioners, hereinafter referred to as the Organizations, are the Brotherhood of Locomotive Engineers, Brotherhood of Locomotive Firemen and Enginemen, Order of Railway Conductors and Brakemen, Brotherhood of Railroad Trainmen, and Switchmen's Union of North America. The respondents, hereinafter referred to as the Carriers, are the Baltimore & Ohio Railroad Company and 15 other named railroad companies, as representatives of a class of more than 200 such companies.
3
In February of 1959, the Association of American Railroads proposed the creation of a presidential commission to investigate and report on the possibility of a radical overhaul of working rules affecting the Organizations and their members in the light of substantial technological changes in the railroad industry. The basis for this proposal was that '* * * drawing up sound new work standards for the railroad industry has become so complex and challenging that the machinery provided for settling ordinary disputes appears hopelessly inadequate to cope with this task.' The Organizations opposed this proposal, and the President of the United States, in September of 1959, refused to appoint such a commission.
4
On November 2 of that year, pursuant to § 6 of the Railway Labor Act,1 the Carriers served on the Organizations notices of intended changes in agreements affecting rates of pay, rules, and working conditions. After conferences both on individual railroads and on a national level had failed to produce agreement concerning the proposed changes, the Organizations and the Carriers in October of 1960, under the auspices of the Secretary of Labor, agreed to the creation of a Presidential Railroad Commission which was to investigate and report on the controversy, and was also authorized 'to use its best efforts, by mediation, to bring about an amicable settlement * * *.'2 The parties agreed that the proceedings of the Commission were to be accepted '* * * as in lieu of the mediation and emergency board procedures provided by Section(s) 5 and 10 of the Railway way Labor Act.' The Commission was created by Executive Order 10891 in November of 1960, U.S.Code Congressional and Administrative News 1960, p. 1693, and its members were appointed in December of that year.
5
The report and recommendations of the Commission were delivered to the President on February 28, 1962, and national conferences on the issues which remained in dispute resumed on April 2 and continued through May 17. No agreement having been reached, the Organizations on May 21 made application for the mediation services of the National Mediation Board pursuant to § 5 of the Railway Labor Act.3 Between May 25 and June 22, approximately 32 meetings were held by the Organizations and the Carriers under the auspices of the Chairman of that Board, but no agreement was reached. The Organizations having refused to submit the dispute to arbitration, the National Mediation Board on July 16 terminated its services under the provisions of the Railway Labor Act.
6
On the following day, the Carriers served notice on the Organizations that, as of August 16, 1962, changes in rules, rates of pay, and working conditions would be placed in effect by the Carriers. On July 26, the Organizations brought the present suit seeking a judgment that the proposed rule changes would violate the Railway Labor Act. Subsequently, the Carriers, with leave of court and without objection from the Organizations, withdrew their July 17, 1962, notices, and substituted therefor the notices which had been served on November 2, 1959, to become effective August 16, 1962. The Organizations' complaint was then amended to seek similar relief against those notices.
7
The District Court found that both parties had exhausted all of the procedures available under the Railway Labor Act, and that they were therefore free to resort to self-help, restricted only by the possibility of the appointment of an Emergency Board by the President under the provisions of § 10 of the Railway Labor Act.4 It therefore dismissed the complaint for failure to state a cause of action. The Court of Appeals affirmed. 310 F.2d 503.
8
The petitioners insist that, because the Court of Appeals characterized the Organizations' actions as reducing negotiations to 'sterile discussion,' its opinion must be read as holding that the right of the Carriers to serve the § 6 notices here at issue somehow arose as a penalty for the Organizations' failure to bargain in good faith. No evidence was introduced below as to the good faith of either of the parties during the lengthy bargaining proceedings prior to the institution of this suit, and there is nothing in the record before us to indicate that either party acted in bad faith. Any contrary implication in the opinion of the Court of Appeals is disapproved.
9
The Court of Appeals concluded, as had the District Court, that the Railway Labor Act procedures had been exhausted, and that therefore the § 6 notices served by the Carriers were proper. The Court of Appeals correctly rejected the contention of the Organizations that the standards contained in the notices themselves violated the Railway Labor Act. As this Court has pointed out, '(t) he Railway Labor Act * * * does not undertake governmental regulation of wages, hours, or working conditions. Instead it seeks to provide a means by which agreement may be reached with respect to them. The national interest * * * is not primarily in the working conditions as such. So far as the Act itself is concerned these conditions may be as bad as the employees will tolerate or be made as good as they can bargain for. The Act does not fix and does not authorize anyone to fix generally applicable standards for working conditions. The federal interest that is fostered is to see that disagreement about conditions does not reach the point of interfering with interstate commerce. * * *' Terminal R. Ass'n of St. Louis v. Brotherhood of R. Trainmen, 318 U.S. 1, 6, 63 S.Ct. 420, 423, 87 L.Ed. 571. See also, National Labor Relations Board v. American Nat. Ins. Co., 343 U.S. 395, 402, 72 S.Ct. 824, 828, 96 L.Ed. 1027.
10
The only question presented, therefore, is whether the record before us sustains the finding of both lower courts that the parties have exhausted the procedures provided by the Railway Labor Act for major disputes such as that involved here. As this Court stated in Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 725, 65 S.Ct. 1282, 1291, 89 L.Ed. 1886:
11
'* * * (t)he parties are required to submit to the successive procedures designed to induce agreement. § 5 First (b). But compulsions go only to insure that those procedures are exhausted before resort can be had to self-help. No authority is empowered to decide the dispute and no such power is intended, unless the parties themselves agree to arbitration.'
12
The 1960 agreement establishing the Presidential Commission contained a provision purporting to accept the Commission's proceedings as a replacement for the procedures required by the Railway Labor Act. Whether or not such a provision could effectively forestall either party from resorting to the procedures of § 5 of the Act is a question which we need not decide, because the services of the National Mediation Board were in fact specifically invoked by the Organizations, and the Board's procedures were exhausted. Similarly, although arbitration pursuant to § 75 was refused by the Organizations, that section clearly provides that 'the failure or refusal of either party to submit a controversy to arbitration shall not be construed as a violation of any legal obligation imposed upon such party by the terms of this chapter or otherwise.'
13
There is, consequently, no question of bad faith or misconduct on the part of either party justifying the other side's unilateral imposition of changes in working rules. What is clear, rather, is that both parties, having exhausted all of the statutory procedures, are relegated to self-help in adjusting this dispute, subject only to the invocation of the provisions of § 10 providing for the creation of an Emergency Board.6 And on this basis the judgment below must be, and is affirmed.
14
Affirmed.
15
Mr. Justice GOLDBERG took no part in the consideration or decision of this case.
1
Section 6 of the Railway Labor Act, as amended, 45 U.S.C. § 156 provides:
'Carriers and representatives of the employees shall give at least thirty days' written notice of an intended change in agreements affecting rates of pay, rules, or working conditions, and the time and place for the beginning of conference between the representatives of the parties interested in such intended changes shall be agreed upon within ten days after the receipt of said notice, and said time shall be within the thirty days provided in the notice. In every case where such notice of intended change has been given, of conferences are being held with reference thereto, or the services of the Mediation Board have been requested by either party, or said Board has proffered its services, rates of pay, rules, or working conditions shall not be altered by the carrier until the controversy has been finally acted upon, as required by section 155 of this title, by the Mediation Board, unless a period of ten days has elapsed after termination of conferences without request for or proffer of the services of the Mediation Board.'
2
This authorization echoed the words of § 5 First of the Railway Labor Act, as amended, 45 U.S.C. § 155 First:
'First. The parties, or either party, to a dispute between an employee or group of employees and a carrier may invoke the services of the Mediation Board in any of the following cases:
'(a) A dispute concerning changes in rates of pay, rules, or working conditions not adjusted by the parties in conference.
'(b) Any other dispute not referable to the National Railroad Adjustment Board and not adjusted in conference between the parties or where conferences are refused.
'The Mediation Board may proffer its services in case any labor emergency is found by it to exist at any time.
'In either event the said Board shall promptly put itself in communication with the parties to such controversy, and shall use its best efforts, by mediation, to bring them to agreement. If such efforts to bring about an amicable settlement through mediation shall be unsuccessful, the said Board shall at once endeavor as its final required action (except as provided in paragraph third of this section and in section 160 of this title) to induce the parties to submit their controversy to arbitration, in accordance with the provisions of this chapter.
'If arbitration at the request of the Board shall be refused by one or both parties, the Board shall at once notify both parties in writing that its mediatory efforts have failed and for thirty days thereafter, unless in the intervening period the parties agree to arbitration, or an emergency board shall be created under section 160 of this title, no change shall be made in the rates of pay, rules, or working conditions or established practices in effect prior to the time the dispute arose.'
3
See note 2, supra.
4
Section 10 of the Railway Labor Act, as amended, 45 U.S.C. § 160, provides:
'If a dispute between a carrier and its employees be not adjusted under the foregoing provisions of this chapter and should, in the judgment of the Mediation Board, threaten substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service, the Mediation Board shall notify the President, who may thereupon, in his discretion, create a board to investigate and report respecting such dispute. Such board shall be composed of such number of persons as to the President may seem desirable: Provided, however, That no member appointed shall be pecuniarily or otherwise interested in any organization of employees or any carrier. The compensation of the members of any such board shall be fixed by the President. Such board shall be created separately in each instance and it shall investigate promptly the facts as to the dispute and make a report thereon to the President within thirty days from the date of its creation.
'After the creation of such board and for thirty days after such board has made its report to the President, no change, except by agreement, shall be made by the parties to the controversy in the conditions out of which the dispute arose.'
5
Section 7 First of the Railway Labor Act, as amended, 45 U.S.C. § 157 First, provides:
'First. Whenever a controversy shall arise between a carrier or carriers and its or their employees which is not settled either in conference between representatives of the parties or by the appropriate adjustment board or through mediation, in the manner provided in sections 151—156 of this title such controversy may, by agreement of the parties to such controversy, be submitted to the arbitration of a board of three (or, if the parties to the controversy so stipulate, of six) persons: Provided, however, That the failure or refusal of either party to submit a controversy to arbitration shall not be construed as a violation of any legal obligation imposed upon such party by the terms of this chapter or otherwise.'
6
See note 4, supra.
The 1960 agreement establishing the Presidential Commission was 'approved' by Secretary of Labor Mitchell. It provided that the parties accepted its proceedings '* * * as in lieu of the mediation and emergency board procedures provided by Section(s) 5 and 10 of the Railway Labor Act.' In addition, the agreement somewhat inconsistently made provision for the invocation of the services of the National Mediation Board and for national bargaining conferences between the parties immediately following the report of the Commission. Finally, it provided that the agreement was not to be construed as a waiver of any legal right of any of the parties. We have already noted that the parties did in fact exhaust § 5 procedures. Neither party in this Court has contended that the 1960 agreement would affect the applicability of § 10. In any event, it is clear that no private agreement can interfere with the duty of the National Mediation Board or the power which § 10 confers upon the President of the United States.
| 67
|
372 U.S. 253
83 S.Ct. 696
9 L.Ed.2d 738
The WHITE MOTOR COMPANY, Appellant,v.UNITED STATES.
No. 54.
Argued Jan. 14 and 15, 1963.
Decided March 4, 1963.
Gerhard A. Gesell, Washington, D.C., for appellant.
Solicitor General Archibald Cox, for appellee.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This is a civil suit under the antitrust laws that was decided below on a motion for summary judgment. Rule 56 of the Rules of Civil Procedure at the time of the hearing below permitted summary judgment to be entered '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.' Since that time, an amendment to Rule 56, which is included in proposed changes submitted to Congress pursuant to 28 U.S.C. § 2072, would add the following requirement:
2
'When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.'
3
But no such requirement was present when the present case was decided; and appellant, though strenuously opposing summary judgment and demanding a trial, submitted no such affidavits. It did, however, in its brief in opposition to the motion for summary judgment, make allegations concerning factual matters which the District Court thought were properly raised and which we think were relevant to a decision on the merits.
4
Appellant manufactures trucks and sells them (and parts) to distributors,1 to dealers, and to various large users. Both the distributors and dealers sell trucks (and parts) to users. Moreover, some distributors resell trucks (and parts) to dealers, selected with appellant's consent. All of the dealers sell trucks (and parts) only to users. The principal practices charged as violations of §§ 1 and 3 of the Sherman Act, 26 Stat. 209, 15 U.S.C. §§ 1, 3, concern limitations or restrictions on the territories within which distributors or dealers may sell and limitations or restrictions on the persons or classes of persons to whom they may sell. Typical of the territorial clause is the following:
5
'Distributor is hereby granted the exclusive right, except as hereinafter provided, to sell during the life of this agreement, in the territory described below, White and Autocar trucks purchased from Company hereunder.
6
'STATE OF CALIFORNIA: Territory to consist of all of Sonoma County, south of a line starting at the western boundary, or Pacific Coast, passing through the City of Bodega, and extending due east to the east boundary line of Sonoma County, with the exception of the sale of fire truck chassis to the State of California and all political subdivisions thereof.
7
'Distributor agrees to develop the aforementioned territory to the satisfaction of Company, and not to sell any trucks purchased hereunder except in accordance with this agreement, and not to sell such trucks except to individuals, firms, or corporations having a place of business and/or purchasing headquarters in said territory.'
8
Typical of the customer clause is the following:
9
'Distributor further agrees not to sell nor to authorize his dealers to sell such trucks to any Federal or State government or any department or political subdivision thereof, unless the right to do so is specifically granted by Company in writing.'
10
These provisions, applicable to distributors and dealers alike, are claimed by appellee to be per se violations of the Sherman Act.2 The District Court adopted that view and granted summary judgment accordingly. 194 F.Supp. 562. We noted probable jurisdiction. 369 U.S. 858, 82 S.Ct. 946, 8 L.Ed.2d 17. See 15 U.S.C. § 29.
11
Appellant, in arguing for a trial of the case on the merits, made the following representations to the District Court: the territorial clauses are necessary in order for appellant to compete with those who make other competitory kinds of trucks; appellant could theoretically have its own retail outlets throughout the country and sell to users directly; that method, however, is not feasible as it entails a costly and extensive sales organization; the only feasible method is the distributor or dealer system; for that system to be effective against the existing competition of the larger companies, a distributor or dealer must make vigorous and intensive efforts in a restricted territory, and if he is to be held responsible for energetic performance, it is fair, reasonable, and necessary that appellant protect him against invasions of his territory by other distributors or dealers of appellant; that appellant in order to obtain maximum sales in a given area must insist that its distributors and dealers concentrate on trying to take sales away from other competing truck manufacturers rather than from each other. Appellant went on to say:
12
'The plain fact is, as we expect to be able to show to the satisfaction of the Court at a trial of this case on the merits, that the outlawing of exclusive distributorships and dealerships in specified territories would reduce competition in the sale of motor trucks and not foster such competition.'
13
As to the customer clauses, appellant represented to the District Court that one of their purposes was to assure appellant 'that 'national accounts,' 'fleet accounts' and Federal and State governments and departments and political subdivisions thereof, which are classes of customers with respect to which the defendant is in especially severe competition with the manufacturers of other makes of trucks and which are likely to have a continuing volume of orders to place, shall not be deprived of their appropriate discounts on their purchases of repair parts and accessories from any distributor or dealer, with the result of becoming discontented with The White Motor Company and the treatment they receive with reference to the prices of repair parts and accessories for White trucks.'
14
The agreements fixing prices of parts and accessories to these customers3 were, according to appellant, only an adjunct to the customer restriction clauses and amounted merely to an agreement to give these classes of customers their proper discounts. 'In a way this affects the prices which these classes of customers have to pay for such parts and accessories, but it affects, as a practical matter, only spare and repair parts and accessories and it affects only the discounts to be given to these particular classes of customers. The provisions are necessary if the defendant's future sales to 'National Accounts,' 'Fleet Accounts' and Federal and State governments and departments and political subdivisions thereof, in competition with other truck manufacturers, are not to be seriously jeopardized.'
White also argued below:
15
'On principle, there is no reason whatsoever why a manufacturer should not have one distributor who is limited to selling to one class of customers and another distributor who is limited to selling to another class of customers or why a distributor should not be limited to one class of customers and the manufacturer reserve the right to sell to another class of customers. There are many circumstances under which there could be no possible objection to limiting the class of customers to which distributors or dealers resell goods, and there are many reasons why it would be reasonable and for the public interest that distributors or dealers should be limited to reselling to certain classes of customers.
16
'In the instant case, it is both reasonable and necessary that the distributors (except for sales to approved dealers) and direct dealers and dealers be limited to selling to the purchasing public, in order that they may be compelled to develop properly the full potential of sales of White trucks in their respective territories, and to assure The White Motor Company that the persons selling White trucks to the purchasing public shall be fair and honest, to the end of increasing and perpetuating sales of White trucks in competition with other makes of trucks; and it is reasonable and necessary that The White Motor Company reserve to itself the exclusive right to sell White trucks to Federal and State governments or any department or political subdivision thereof rather than to sell such trucks to such governments or departments or political subdivisions thereof through distributors or dealers, and The White Motor Company should have a perfect right so to do.
17
'Therefore, based both on the decisions of the Federal Courts and on principle, the limitations on the classes of customers to whom distributors or dealers may sell White trucks are not only not illegal per se, as the plaintiff must prove to succeed on its motion for summary judgment, but these limitations have proper purposes and effects and are fair and reasonable and not violative of the antitrust laws as being in unreasonable restraint of competition or trade and commerce.'
18
In this Court appellant defends the customer clauses on the ground that 'the only sure way to make certain that something really important is done right, is to do it for oneself. The size of the orders, the technicalities of bidding and delivery, and other factors all play a part in this decision.'
19
Summary judgments have a place in the antitrust field, as elsewhere, though, as we warned in Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458, they are not appropriate 'where motive and intent play leading roles.' Some of the law in this area is so well developed that where, as here, the gist of the case turns on documentary evidence, the rule at times can be divined without a trial.
20
Where the sale of an unpatented product is tied to a patented article, that is a per se violation since it is a bald effort to enlarge the monopoly of the patent beyond its terms. Mercoid Corp. v. Minneapolis Honeywell Regulator Co., 320 U.S. 680, 684, 64 S.Ct. 278, 280, 88 L.Ed. 396; International Salt Co. v. United States, 332 U.S. 392, 395—396, 68 S.Ct. 12, 14—15, 92 L.Ed. 20. And see Ethyl Gasoline Corp. v. United States, 309 U.S. 436. 60 S.Ct. 618, 84 L.Ed. 852. If competitors agree to divide markets, they run afoul of the antitrust laws. Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199. Group boycotts are another example of a per se violation. Fashion Originators' Guild of America v. Federal Trade Comm., 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949; Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741. Price-fixing arrangements, both vertical (United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505; Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502) and horizontal (United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129; Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219), have also been held to be per se violations of the antitrust laws; and a trial to show their nature, extent, and degree is no longer necessary.
21
As already stated, there was price fixing here and that part of the injunction issued by the District Court is not now challenged. In any price-fixing case restrictive practices ancillary to the price-fixing scheme are also quite properly restrained. Such was United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 64 S.Ct. 805, 88 L.Ed. 1024, where price fixing was 'an integral part of the whole distribution system' (Id., 720, 64 S.Ct. 812) including customer restrictions. No such finding was made in this case; and whether or not the facts would permit one we do not stop to inquire.
22
Appellant apparently maintained two types of price-fixing agreements. Under the first, a distributor was allowed to appoint dealers under him, but each distributor had to agree with appellant that he would charge the dealers the same price for trucks that appellant charged its direct dealers. The agreement affected only five percent of the trucks sold by appellant. And there were no price-fixing provisions pertaining to truck sales to ultimate purchasers. The other price-fixing arrangement required all distributors and dealers to give 'national accounts,' 'fleet accounts,' and governmental agencies the same discount on parts and accessories as White gave them. No figures are given, but it was assumed by the District Court that the amount of commerce involved under this agreement was relatively small. Without more detailed findings we therefore cannot say that the case is governed by United States v. Bausch & Lomb Optical Co., supra.
23
We are asked to extend the holding in Timken Roller Bearing Co. v. United States, supra (which banned horizontal arrangements among competitors to divide territory), to a vertical arrangement by one manufacturer restricting the territory of his distributors or dealers. We intimate no view one way or the other on the legality of such an arrangement, for we believe that the applicable rule of law should be designed after a trial.
24
This is the first case involving a territorial restriction in a vertical arrangement; and we know too little of the actual impact of both that restriction and the one respecting customers to reach a conclusion on the bare bones of the documentary evidence before us.
25
Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 62, 31 S.Ct. 502, 516, 55 L.Ed. 619, read into the Sherman Act the 'rule of reason.' That 'rule of reason' normally requires an ascertainment of the facts peculiar to the particular business. As stated in Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683:
26
'Every agreement concerning trade, every regulation of trade, restrains. To bind, to restrain, is of their very essence. The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts. This is not because a good intention will save an otherwise objectionable regulation or the reverse; but because knowledge of intent may help the court to interpret facts and to predict consequences.'
27
We recently reviewed per se violations of the antitrust laws in Northern Pac. R. Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545. That category of antitrust violations is made up of 'agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.' Id., p. 5, 78 S.Ct., p. 518. Tying arrangements or agreements by a party 'to sell one product but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier' (Id., pp. 5—6, 78 S.Ct., p. 518) may fall in that category, though not necessarily so.
28
'They are unreasonable in and of themselves whenever a party has sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product and a 'not insubstantial' amount of interstate commerce is affected. * * * Of course where the seller has no control or dominance over the tying product so that it does not represent an effectual weapon to pressure buyers into taking the tied item any restraint of trade attributable to such tying arrangements would obviously be insignificant at most. As a simple example, if one of a dozen food stores in a community were to refuse to sell flour unless the buyer also took sugar it would hardly tend to restrain competition in sugar if its competitors were ready and able to sell flour by itself.' Id., pp. 6—7, 78 S.Ct., p. 518.
29
We recently noted the importance of the nature of the tying arrangement in its factual setting:
30
'Thus, unless the tying device is employed by a small company in an attempt to break into a market, cf. Harley-Davidson Motor Co., 50 F.T.C. 1047, 1066, the use of a tying device can rarely be harmonized with the strictures of the antitrust laws, which are intended primarily to preserve and stimulate competition.' Brown Shoe Co. v. United States, 370 U.S. 294, 330, 82 S.Ct. 1502, 1526, 8 L.Ed.2d 510.
31
Horizontal territorial limitations, like '(g)roup boycotts, or concerted refusals by traders to deal with other traders' (Klor's, Inc. v. Broadway-Hale Stores, Inc., supra, 212 of 359 U.S., 709 of 79 S.Ct.), are naked restraints of trade with no purpose except stifling of competition. A vertical territorial limitation may or may not have that purpose or effect. We do not know enough of the economic and business stuff out of which these arrangements emerge to be certain. They may be too dangerous to sanction or they may be allowable protections against aggressive competitors or the only practicable means a small company has for breaking into or staying in business (cf. Brown Shoe, supra, at 330 of 370 U.S., 82 S.Ct. at 1526, 1527; United States v. Jerrold Electronics Corp., D.C., 187 F.Supp. 545, 560—561, aff'd, 365 U.S. 567, 81 S.Ct. 755, 5 L.Ed.2d 806) and within the 'rule of reason.' We need to know more than we do about the actual impact of these arrangements on competition to decide whether thay have such a 'pernicious effect on competition and lack * * * any redeeming virtue' (Northern Pac. R. Co. v. United States, supra, p. 5 of 356 U.S., 78 S.Ct. p. 518) and therefore should be classified as per se violations of the Sherman Act.
32
There is an analogy from the merger field that leads us to conclude that a trial should be had. A merger that would otherwise offend the antitrust laws because of a substantial lessening of competition has been given immunity where the acquired company was a failing one. See International Shoe Co. v. Federal Trade Commission, 280 U.S. 291, 302—303, 50 S.Ct. 89, 92—93, 74 L.Ed. 431. But in such a case, as in cases involving the question whether a particular merger will tend 'substantially to lessen competition' (Brown Shoe Co. v. United States, supra, pp. 328—329 of 370 U.S., 82 S.Ct. pp. 1525—1526), a trial rather than the use of the summary judgment is normally necessary. United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176.
33
We conclude that the summary judgment, apart from the price-fixing phase of the case, was improperly employed in this suit. Apart from price fixing, we do not intimate any view on the merits. We only hold that the legality of the territorial and customer limitations should be determined only after a trial.
34
Reversed.
35
Mr. Justice WHITE took no part in the consideration or decision of this case.
36
Mr. Justice BRENNAN, concurring.
37
While I join the opinion of the Court, the novelty of the antitrust questions prompts me to add a few words. I fully agree that it would be premature to declare either the territorial or the customer restrictions illegal per se, since 'we know too little of the actual impact (of either form of restraint) * * * to reach a conclusion on the bare bones of the * * * evidence before us.' But it seems to me that distinct problems are raised by the two types of restrictions and that the District Court will wish to have this distinction in mind at the trial.
I.
38
I discuss first the territorial limitations. The insulation of a dealer or distributor through territorial restraints against sales by neighboring dealers who would otherwise be his competitors involves a form of restraint upon alienation, which is therefore historically and inherently suspect under the antitrust laws.1 See Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 404—408, 31 S.Ct. 376, 383—384, 55 L.Ed. 502. That proposition does not, however, tell us that every form of such restraint is utterly without justification and is therefore to be deemed unlawful per se. That is true only of those 'agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.' Northern Pac. R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545. Specifically, the per se rule of prohibition has been applied to price-fixing agreements, group boycotts, tying arrangements, and horizontal divisions of markets. As to each of these practices, experience and analysis have established the utter lack of justification to excuse its inherent threat to competition.2 To gauge the appropriateness of a per se test for the forms of restraint involved in this case, then, we must determine whether experience warrants, at this stage, a conclusion that inquiry into effect upon competition and economic justification would be similarly irrelevant.3 With respect to the territorial limitations of the type at bar, I agree that the courts have as yet been shown no sufficient experience to warrant such a conclusion.
39
The Government urges, and the District Court found, that these restrictions so closely resemble two traditionally outlawed forms of restraint—horizontal market division and resale price maintenance—that they ought to be governed by the same absolute legal test. Both analogies are surely instructive, and all the more so because the practices at bar are sui generis; but both are, at the same time, misleading. It seems to me that consideration of the similarities has thus far obscured consideration of the equally important differences, which serve in my view to distinguish the practice here from others as to which we have held a per se test clearly appropriate.
40
Territorial limitations bear at least a superficial resemblance to horizontal divisions of markets among competitors, which we have held to be tantamount to agreements not to compete, and hence inevitably violative of the Sherman Act,4 Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199. If it were clear that the territorial restrictions involved in this case had been induced solely or even primarily by appellant's dealers and distributors, it would make no difference to their legality that the restrictions were formally imposed by the manufacturer rather than through inter-dealer agreement.5 Cf. Interstate Circuit, Inc. v. United States, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed. 610; United States v. Masonite Corp., 316 U.S. 265, 275—276, 62 S.Ct. 1070, 1076, 86 L.Ed. 1461. But for aught that the present record discloses, an equally plausible inference is that the territorial restraints were imposed upon unwilling distributors by the manufacturer to serve exclusively his own interests. That inference gains some credibility from the fact that these limitations—unlike, for example, exclusive franchise agreements—bind the dealers to a rather harsh bargain while leaving the manufacturer unfettered. In any event, neither the source nor the purpose of these restraints can be conclusively determined on the pleadings or the supporting affidavits. The crucial question whether, despite the differences in form, these restraints serve the same pernicious purpose and have the same inhibitory effects upon competition as horizontal divisions of markets, is one which cannot be answered without a trial.6
41
The analogy to resale price maintenance agreements is also appealing, but is no less deceptive. Resale price maintenance is not only designed to, but almost invariably does in fact, reduce price competition not only among sellers of the affected product, but quite as much between that product and competing brands. See United States v. Parke, Davis & Co., 362 U.S. 29, 45—47, 80 S.Ct. 503, 512—513, 4 L.Ed.2d 505. While territorial restrictions may indirectly have a similar effect upon intra-brand competition, the effect upon inter-brand competition is not necessarily the same as that of resale price maintenance.7
42
Indeed, the principal justification which the appellant offers for the use of these limitations is that they foster a vigorous inter-brand competition which might otherwise be absent. Thus, in order to determine the lawfulness of this form of restraint, it becomes necessary to assess the merit of this and other extenuations offered by the appellant. Surely it would be significant to the disposition of this case if, as appellant claims, some such arrangement were a prerequisite for effective competition on the part of independent manufacturers of trucks. Whatever relationship such restraints may bear to the ultimate survival of producers like White should be fully explored by the District Court if we are properly to appraise this excuse for resort to these practices.
43
There are other situations, not presented directly by this case, in which the possibility of justification cautions against a too hasty conclusion that territorial limitations are invariably unlawful. Arguments have been suggested against that conclusion, for example, in the case of a manufacturer starting out in business or marketing a new and risky product; the suggestion is that such a manufacturer may find it essential, simply in order to acquire and retain outlets, to guarantee his distributors some degree of territorial insulation as well as exclusive franchises. It has also been suggested that it may reasonably appear necessary for a manufacturer to subdivide his sales territory in order to ensure that his product will be adequately advertised, promoted, and serviced.8 It is, I think, the inappropriateness or irrelevance of such justifications as these to the practices traditionally condemned under the per se test that principally distinguishes the territorial restraints involved in the present case from horizontal market divisions and resale price maintenance.
44
Another issue which seems to me particularly to require a full inquiry into the pros and cons of these territorial restrictions is whether, assuming that some justification for these limitations can be shown, their operation is reasonably related to the needs which brought them into being. To put the question another way, the problem is not simply whether some justification can be found, but whether the restraint so justified is more restrictive than necessary, or excessively anticompetitive, when viewed in light of the extenuating interests.9 That question is one which can be adequately treated only by examining the operation and practical effect of the restraints, whatever may be their form. And in order to appraise that effect, it is necessary to know what sanctions are imposed against distributors who 'raid,' or sell across territorial boundaries in violation of the agreements. If, for example, such a cross-sale incurs only an obligation to share (or 'pass over') the profit with the dealer whose territory has been invaded—as is most often, and apparently here, the case10—then the practical effect upon competition of a territorial limitation may be no more harmful than that of the typical exclusive franchise—the lawfulness of which the Government does not dispute here. If, on the other hand, the dealer who cross-sells runs the risk under the agreement of losing his franchise altogether, intra-brand competition across territorial boundaries involves serious hazards which might well deter any effort to compete.
45
Another pertinent inquiry would explore the availability of less restrictive alternatives. In the present case, for example, as the Government suggests, it may appear at the trial that whatever legitimate business needs White advances for territorial limitations could be adequately served, with less damage to competition, through other devices—for example, an exclusive franchise,11 an assignment of areas of primary responsibility to each distributor,12 or a revision of the levels of profit pass-over so as to minimize the deterrence to cross-selling by neighboring dealers where competition is feasible.13 But no such inquiry as this into the question of alternatives could meaningfully be undertaken until the District Court has ascertained the effect upon competition of the particular territorial restraints in suit, and of the particular sanctions by which they are enforced.
II.
46
I turn next to the customer restrictions. These present a problem quite distinct from that of the territorial limitations. The customer restraints would seem inherently the more dangerous of the two, for they serve to suppress all competition between manufacturer and distributors for the custom of the most desirable accounts. At the same time they seem to lack any of the countervailing tendercies to foster competition between brands which may accompany the territorial limitations. In short, there is far more difficulty in supposing that such customer restrictions can be justified.
47
The crucial question to me is whether, in any meaningful sense, the distributors could, but for the restrictions, compete with the manufacturer for the reserved outlets.14 If they could, but are prevented from doing so only by the restrictions, then in the absence of some justification neither presented nor suggested by this record, their invalidity would seem to be apparent. Cf. United States v. McKesson & Robbins, Inc., 351 U.S. 305, 312, 76 S.Ct. 937, 941, 100 L.Ed. 1209; United States v. Klearflax Linen Looms, Inc., D.C., 63 F.Supp. 32. If, on the other hand, it turns out that as a practical matter the restricted dealers could neither fill the orders nor service the fleets of the governmental and fleet customers, then the District Court might conclude that because there would otherwise be no meaningful competition, the restrictive agreements do no more than codify the economically obvious. It might even be that such restrictions were originally designed to foreclose the distributors from soliciting the reserved accounts, but that now the restrictions have become meaningless because the distributors would in any event be unable to compete.
48
The reasons given by White for the use of customer restrictions strike me as untenable if in operation and effect the restrictions are found to stifle competition. These justifications are of three types. First, White argues that such restrictions are required because '(a) distributor or dealer is not competent to handle this intricate process (of servicing large accounts) until he has had many months of specialized White training'; and that there is a consequent danger of 'unauthorized dealers' who 'will be unqualified to work out specifications for trucks to meet customers' peculiar requirements.' To the extent that these fears are well founded, they represent the concerns which any manufacturer may legitimately have about his distributors' ability to deal effectively with large or demanding customers. By their very terms, however, these concerns seem to call not for cutting the distributors completely out of this segment of the market, but rather for such less drastic measures as, for example, improved supervision and training, or perhaps a special form of manufacturer's warranty to the governmental and fleet purchasers to protect against unsatisfactory distributor servicing.
49
The second justification White offers is that 'the only sure way to make certain that something really important is done right, is to do it for oneself.' This argument seems to me to prove too much, for if the distributors truly cannot be counted on to solicit and service the governmental and fleet accounts—not all of which are, in fact, large or demanding—then this suggests that the only adequate solution may be vertical integration, the elimination of all independent or franchised distribution. But that White is either unwilling or unable to do. Instead, it seeks the best of both worlds—to retain a distribution system for the general run of its customers, while skimming off the cream of the trade for its own direct sales. That, it seems to me, the antitrust laws would not permit, cf. Eastman Kodak Co. of New York v. Southern Photo Materials Co., 273 U.S. 359, 375, 47 S.Ct. 400, 404, 71 L.Ed. 684, if in fact the distributors could compete for the reserved accounts without the restrictions.
50
The third justification, which White offered in its jurisdictional statement, is that customer limitations are essential to enable it to 'more effectively compete against its competitors by selling trucks directly' to the reserved customers rather than 'through the interposition of distributors or dealers.' This argument invites consideration of what to me is the essential vice of the customer restrictions. The manufacturer's very position in the channels of distribution should afford him an inherent cost advantage over his distributors. In the nature of things, it would seem that the large purchasers would buy from whichever outlet gave them the lowest prices. Thus, if the manufacturer always did grant discounts which the distributors were unable to grant, there would seem to be no reason whatever for denying the distributors able to overcome that advantage access to the preferred customers. Conversely, the presence of such restrictions in the agreements between White and its distributors suggests that they are designed, at least in part, to protect a noncompetitive pricing structure, in which the manufacturer in fact does not always charge the lowest prices.
51
In sum, the proffered justifications do not seem to me to sanction customer restrictions which suppress all competition between the manufacturer and his distributors for the most desirable customers. On trial, as I see it, the Government will necessarily prevail unless the proof warrants a finding that, even in the absence of the restrictions, the economics of the trade are such that the distributors cannot compete for the reserved accounts.
52
Mr. Justice CLARK, with whom THE CHIEF JUSTICE and Mr. Justice BLACK join, dissenting.
53
The Court is reluctant to declare vertical territorial arrangements illegal per se because 'This is the first case involving a territorial restriction in a vertical arrangement; and we know too little of the actual impact * * * of that restriction * * * to reach a conclusion on the bare bones of the documentary evidence before us.' The 'bare bones' consist of the complaint and answer, excerpts from interrogatories, exhibits and deposition of the secretary of White Motor on behalf of the Government, taken in 1959, the formal motion of the Government for summary judgment and an excerpt entitled 'Argument' from the brief of White Motor in opposition thereto. I believe that these 'bare bones' really lay bare one of the most brazen violations of the Sherman Act that I have experienced in a quarter of a century.
54
This 'argument,' which the appellant has convinced the Court raises a factual issue requiring a trial, points out that each distributor is required to maintain a sales room, service station and a representative number of White trucks. 'In return for these agreements of the distributor * * * it is only fair and reasonable and, in fact, necessary * * * that the distributor shall be protected in said distributor's territory against selling therein by defendant's other distributors * * * who have not made the investment of money and effort * * * in the said territory.' Likewise, appellant's argument continues, 'similar provisions in direct dealers' contracts and in contracts between the distributors and their respective dealers have the same purposes and the same effects.' These limitations have 'the purpose and effect of promoting the business and increasing the sales of White trucks in competition with The White Motor Company's powerful competitors.' Emphasizing that the motor-truck manufacturing industry is one of 'the most highly competitive industries in this country,' appellant points up that its share 'is very small' and 'by no stretch of the imagination, could be said to dominate the market in trucks.' It insists that there are but two ways to market trucks: (1) selling to the public through its own sales and service stations, and (2) through the distributor-dealer distribution system which it presently follows. It discards the first as being 'feasible only for a very large company.' As to the second, the distributors and dealers must not be allowed to spread their efforts 'too thinly over more territory than they can vigorously and intensively work.' It is therefore necessary, appellant says, 'to confine their efforts to a territory no larger than they have the financial means and sales and service facilities and capabilities to intensively cultivate * * *.' In return 'it is only fair and reasonable, and indeed necessary, that The White Motor Company protect its dealers and distributors in their respective allotted territories against the exploitation by other White distributors or dealers, and indeed by the Company itself * * *.' In order to procure 'distributors and dealers that will adequately represent The White Motor Company's line of motor trucks, (it) has to agree that these men shall be exclusive sales representatives in a given territory.' For this reason appellant 'will not allow any other of its distributors or dealers to come into the territory and scalp the market for White trucks therein.' Rather than 'cutting each other's throats' White Motor insists that they 'concentrate on trying to take sales away from other competing truck manufacturers * * *.' The net effect of its justification for the territorial allocation is that 'these limitations have proper purposes and effects and are fair and reasonable * * *.' (Italicized in original.)
55
On the price-fixing requirement in the contracts, which White Motor has abandoned on appeal, the 'argument' points out that this requirement was limited to about 5% of its sales and was not followed in sales to the public. Justification for its use otherwise was that it insured that all of its agents 'get an equal break pricewise,' which was a necessary step to having 'satisfied and efficient dealer organizations.' As to the required discounts provision on repair parts and accessories, it says that these are necessary 'if the defendant's future sales to 'National Accounts,' 'Fleet Accounts' and Federal and State governments * * * and political subdivisions * * * are not to be seriously jeopardized.' After all, it says, 'probably nothing will make the owner of a motor vehicle so peeved as to be overcharged for repair parts and accessories.'
56
The situation in which White Motor finds itself may be summed up in its own words, i.e., that its contracts are 'the only feasible way for (it) to compete effectively with its bigger and more powerful competitors * * *.' In this justification it attempts but to make a virtue of business necessity, which has long been rejected as a defense in such cases. See Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 407—408, 31 S.Ct. 376, 384, 55 L.Ed. 502 (1911); Fashion Originators' Guild of America v. Federal Trade Comm'n, 312 U.S. 457, 467—468, 61 S.Ct. 703, 707—708, 85 L.Ed. 949 (1941), and Northern Pac. R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). This is true because the purpose of these provisions in its contracts as shown by White Motor's own 'argument' is to enable it to compete with its 'powerful competitors' and 'protect its dealers and distributors in their respective allotted territories against the exploitation by other White distributors or dealers' and thus prevent them from 'cutting each other's throats.' These grounds for its action may be good for White Motor but they are disastrous for free competitive enterprise and, if permitted, will destroy the effectiveness of the Sherman Act. For under these contracts a person wishing to buy a White truck must deal with only one seller who by virtue of his agreements with dealer competitors has the sole power as to the public to set prices, determine terms and even to refuse to sell to a particular customer. In the latter event the customer could not buy a White truck because a neighboring dealer must reject him under the White Motor contract unless he has 'a place of business and/or purchasing headquarters' in the latter's territory. He might buy another brand of truck, it is true, but the existence of interbrand competition has never been a justification for an explicit agreement to eliminate competition. See United States v. McKesson & Robbins, Inc., 351 U.S. 305, 76 S.Ct. 937, 100 L.Ed. 1209 (1956). Likewise each White Motor dealer is isolated from all competition with other White Motor dealers. One cannot make a sale or purchase of a White Motor truck outside of his own territory. He is confined to his own economic island.
57
I have diligently searched appellant's offer of proof but fail to find any allegation by it that raises an issue of fact. All of its statements are economic arguments or business necessities none of which have any bearing on the legal issue. It clearly appears from its contracts that 'all room for competition between retailers (dealers), who supply the public, is made impossible.' John D. Park & Sons Co. v. Hartman, 153 F. 24, 42 (C.A.6th Cir.), opinion by Mr. Justice Lurton, then circuit judge, and adopted by Mr. Justice Hughes, later Chief Justice, in Dr. Miles Medical Co. v. John D. Park & Sons Co., supra, 220 U.S. at 400, 31 S.Ct. at 381 (1911). I have read and re-read appellant's 'argument' and even though I give it the dignity of proof I return to the conclusion, as did Mr. Justice Lurton, that 'If these contracts leave any room at any point of the line for the usual play of competition between the dealers * * * it is not discoverable.' Ibid.
58
This Court, it is true, has never held whether there is a difference between market divisions voluntarily undertaken by a manufacturer such as White Motor and those of dealers in a commodity, agreed upon by themselves, such as were condemned in Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951). White does not contend that its distribution system has any less tendency to restrain competition among its distributors and dealers than a horizontal agreement among such distributors and dealers themselves. It seems to place some halo around its agreements because they are vertical. But the intended and actual effect is the same as, if not even more destructive than, a price-fixing agreement or any of its per se counterparts. This is true because price-fixing agreements, being more easily breached, must be continually policed by those forming the combination, while contracts for a division of territory, being easily detected, are practically self-enforcing. Moreover, White Motor has admitted that each of its distributors and dealers, numbering some 300, has entered into identical contracts. In its 'argument' it says that 'it has to' agree to these exclusive territorial arrangements in order to get financially able and capable distributors and dealers. It has nowise denied that it has been required by the distributors or dealers to enter into the contracts. Indeed the clear inference is to the contrary. The motivations of White Motor and its distributors and dealers are inextricably intertwined; the distributors and dealers are each acquainted with the contracts and have readily complied with their requirements, without which the contracts would be of no effect. It is hard for me to draw a distinction on the basis of who initiates such a plan. Indeed under Interstate Circuit, Inc., v. United States, 306 U.S. 208, 223, 59 S.Ct. 467, 473, 83 L.Ed. 610 (1939), the unanimity of action by some 300 parties here forms the basis of an 'understanding that all were to join' and the economics of the situation would certainly require as much. There this Court on a much weaker factual basis held:
59
'It texes credulity to believe that the several distributors would, in the circumstances, have accepted and put into operation with substantial unanimity such * * * methods without some understanding that all were to join, and we reject as beyond the range of probability that it was the result of mere chance.'
60
Likewise, the other restrictions in the contracts run counter to the Sherman Act. This Court has held the restriction on the withholding of customers to be illegal as a contract between potential competitors not to compete, United States v. McKesson & Robbins, Inc., supra, 351 U.S. at 312, 76 S.Ct. at 941 (1956), and White Motor's prohibition on resales without its approval is condemned by United States v. Bausch & Lomb Co., 321 U.S. 707, 721, 64 S.Ct. 805, 812, 88 L.Ed. 1024 (1944). Experience, as well as our cases, has shown that these restrictions have a 'pernicious effect on competition and lack * * * any redeeming virtue * * *.' Northern Pac. R. Co. v. United States, supra, 356 U.S., at 5, 78 S.Ct., at 518.
61
The Court says that perhaps the reasonableness or the effect of such arrangements might be subject to inquiry. But the rule of reason is inapplicable to agreements made solely for the purpose of eliminating competition. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940) (price fixing); Fashion Originators' Guild v. Federal Trade Comm'n, supra (group boycotts); International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947), and United States v. National Lead Co., 332 U.S. 319, 67 S.Ct. 1634, 91 L.Ed. 2077 (1947) (tying arrangements); Timken Roller Bearing Co. v. United States, supra; Nationwide Trailer Rental System v. United States, 355 U.S. 10, 78 S.Ct. 11, 2 L.Ed.2d 20 (1957), affirming 156 F.Supp. 800 (D.C.D.Kan.1957), and United States v. National Lead Co., supra (division of markets). The same rule applies to the contracts here. The offered justification must fail because it involves a contention contrary to the public policy of the Sherman Act, which is that the suppression of competition is in and of itself a public injury. To admit, as does the petitioner, that competition is eliminated under its contracts is, under our cases, to admit a violation of the Sherman Act. No justification, no matter how beneficial, can save it from that interdiction.
62
The thrust of appellant's contention seems to be in essence that it cannot market its trucks profitably without the advantage of the restrictive covenants. I note that other motor car manufacturers—including the 'big three'—abandoned the practice over a decade ago. One of these, American Motors, told the Eighty-fourth Congress, before which legislation was pending to permit division of territory,1 that it was 'not in favor of any legislation, permissive or otherwise, that restricts the right of the customer to choose any dealers from whom he desires to purchase.' Hearings before a Subcommittee of the House Committee on Interstate and Foreign Commerce on Automobile Marketing Legislation, 84th Cong., p. 285. American Motors seems to have been able to survive and prosper against 'big three' competition. But even though White Motor gains an advantage through the use of the restrictions, 'the question remains whether it is one which (it) is entitled to secure by agreements restricting the freedom of trade on the part of dealers who own what they sell.' Dr. Miles Medical Co., supra, 220 U.S. at 407—408, 31 S.Ct. at 384. And, Mr. Justice Hughes continued:
63
'As to this, the complainant can fare no better with its plan of identical contracts than could the dealers themselves if they formed a combination and endeavored to establish the same restrictions, and thus to achieve the same result, by agreement with each other. If the immediate advantage they would thus obtain would not be sufficient to sustain such a direct agreement, the asserted ulterior benefit to the complainant cannot be regarded as sufficient to support its system.' Id., at 408, 31 S.Ct., at 384.
64
The milk in the coconut is that White Motor 'having sold its product at prices satisfactory to itself, the public is entitled to whatever advantage may be derived from competition in the subsequent traffic.' Id., at 409, 31 S.Ct., at 385.
65
Today the Court does a futile act in remanding this case for trial. In my view appellant cannot plead nor prove an issue upon which a successful defense of its contracts can be predicated. Neither time (I note the case is now in its sixth year) nor all of the economic analysts, the statisticians, the experts in marketing, or for that matter the ingenuity of lawyers, can escape the unalterable fact that these contracts eliminate competition and under our cases are void. The net effect of the remand is therefore but to extend for perhaps an additional five years White Motor's enjoyment of the fruits of its illegal action. Certainly the decision has no precedential value2 in substantive antitrust law.
1
We are advised by appellant that since the judgment below, White 'no longer uses distributors as a separate tier in its system, but sells directly to dealers instead.'
2
Appellant does not appeal from the District Court's ruling that the provisions of the contracts fixing resale prices were unlawful.
3
See note 2, supra.
1
For a general consideration of the history and legality of restraints upon alienation, both at common law and under the Sherman Act, see Levi, The Parke, Davis-Colgate Doctrine: The Ban on Resale Price Maintenance, Supreme Court Review (Kurland ed. 1960), 258, 270—278.
2
The general principle which the Court has stated with respect to price-fixing agreements is applicable alike to boycotts, divisions of markets, and tying arrangements: 'Whatever economic justification particular * * * agreements may be thought to have, the law does not permit an inquiry into their reasonableness. They are all banned because of their actual or potential threat to the central nervous system of the economy.' United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 224, n. 59, at 226, 60 S.Ct. 811, 845, 84 L.Ed. 1129.
3
Outside the categories of restraint which are per se unlawful, this Court has said that the question to be answered is 'whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts.' Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683.
While the Government urges upon us the adoption of a per se rule of illegality, it nonetheless recognizes that not all the considerations relevant to the validity of this particular form of restraint are or could be presented by the present case: 'What is the importance of interbrand as opposed to intrabrand competition? * * * Will White's restrictions remain reasonable if its share of the market increases? * * * These are only a few of the issues relevant to a trial of the 'reasonableness' of any particular set of territorial restrictions. Nor could one be content with a single investigation. Business conditions change. The effect of restricting competition among dealers today may be different tomorrow.' Brief for the United States, pp. 31—32.
4
See Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 240—245, 20 S.Ct. 96, 107—109, 44 L.Ed. 136; United States v. National Lead Co., D.C., 63 F.Supp. 513, aff'd, 332 U.S. 319, 67 S.Ct. 1634, 91 L.Ed. 2077. See also Report of the Attorney General's National Committee to Study the Antitrust Laws (1955), 26.
5
For contrasting views on this question, compare Kessler and Stern, Competition, Contract, and Vertical Integration, 69 Yale L.J. 1, 113 (1959), with Robinson, Restraints on Trade and the Orderly Marketing of Goods, 45 Cornell L.Q. 254, 267—268 (1960).
6
See, for an elaboration and discussion of some of the factors which might enter such an inquiry, Snap-On Tools Corp., FTC Docket 7116, 3 CCH Trade Reg. Rep. 15,546; Jordan, Exclusive and Restricted Sales Areas Under the Antitrust Laws, 9 U.C.L.A.L.Rev. 111, 125—129 (1962). For further discussion of the reasons which make such an inquiry desirable with respect to restraints of this very kind, see Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75 Harv.L.Rev. 655, 698—699 (1962).
7
See Note, Restricted Channels of Distribution Under the Sherman Act, 75 Harv.L.Rev. 795, 800—801 (1962). It may be relevant to the question whether the territorial restrictions were intended to suppress price competition that appellant also maintained a schedule of resale prices in its distributor agreements, though there has been no challenge here to the District Court's finding that those provisions were unlawful per se.
8
For situations in which such extenuations might be relevant, compare, e.g., Packard Motor Car Co. v. Webster Motor Car Co., 100 U.S.App.D.C. 161, 243 F.2d 418; Schwing Motor Co. v. Hudson Sales Corp., 138 F.Supp. 899 (D.C.D.Md.), aff'd, 239 F.2d 176 (C.A.4th Cir.). In the former case the court observed, in holding an exclusive franchise arrangement not violative of the Sherman Act:
'The short of it is that a relatively small manufacturer, competing with large manufacturers, thought it advantageous to retain its largest dealer in Baltimore, and could not do so without agreeing to drop its other Baltimore dealers. To penalize the small manufacturer for competing in this way not only fails to promote the policy of the antitrust laws but defeats it.' 100 U.S.App.D.C., at 164, 243 F.2d at 421. The doctrine of the Packard and Schwing cases is, however, of necessarily limited scope; not only were the manufacturers involved much smaller than the 'big three' of the automobile industry against whom they competed, but both had experienced declines in their respective market shares. And the exclusive franchises involved in those cases apparently were not accompanied by territorial limitations. See Jordan, supra, note 6, at 135—139. See, for consideration of a similar problem by the Federal Trade Commission, Columbus Coated Fabrics Corp., 55 F.T.C. 1500, 1503—1504.
9
If the restraint is shown to be excessive for the manufacturer's needs, then its presence invites suspicion either that dealer pressures rather than manufacturer interests brought it about, or that the real purpose of its adoption was to restrict price competition, cf. Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 457—459, 60 S.Ct. 618, 625—626, 84 L.Ed. 852; United States v. Masonite Corp., supra. See Turner, supra, note 6, at 698 699, 704—705.
10
In its complaint, the Government charged that any dealer or distributor who sells in another's reserved territory must pay to the injured distributor 'a specified amount of money for violation of said exclusive territory * * *.' There has been no suggestion in this case that more drastic sanctions, such as withdrawal or cancellation of a franchise, have ever been invoked by the appellant to check cross-selling. The pass-over provisions contained in the typical White contract (in a provision governing 'adjustment on outside deliveries') seem representative of exclusive-territory sanctions generally employed. See Note, Restricted Channels of Distribution Under the Sherman Act, 75 Harv.L.Rev. 795, 814—816 (1962).
11
The District Court suggested, 194 F.Supp. at 585—586, and the Government seems to concede, that certain types of exclusive franchises would not violate the Sherman Act, although a determination of the legality of such arrangements would seem also to require an examination of their operation and effect.
12
See Snap-On Tools Corp., FTC Docket No. 7116, 3 CCH Trade Reg.Rep. 15,546, p. 20,414. A number of consent decrees have recently recognized the lawfulness of area-of-primary-responsibility covenants as substitutes for the more restrictive exclusive arrangements. See, e.g., United States v. Bostitch, Inc., CCH 1958 Trade Cases 69,207 (D.C.D.R.I.); United States v. Rudolph Wurlitzer Co., CCH 1958 Trade Cases 69,011 (D.C.W.D.N.Y.). The thrust of such provisions is, however, only that the dealer must adequately represent the manufacturer in the assigned area, not that he must stay out of other areas. See generally 60 Mich.L.Rev. 1008 (1962).
13
The essential question whether such restraints exceed the appellant's competitive needs cannot be answered, as the Government suggests simply by reference to the views of major automobile manufacturers that territorial limitations are unnecessary to ensure effective promotion and servicing for their products. See Hearings Before a Subcommittee of the House Committee on Interstate and Foreign Commerce on Automobile Marketing Legislation, 84th Cong., pp. 160, 248, 285, 323.
14
In an analogous case, brought under § 5 of the Federal Trade Commission Act, the Commission dismissed the complaint because of insufficient evidence that customer limitations had foreclosed meaningful competition. In the Matter of Roux Distributing Co., 55 F.T.C. 1386. The finding that non-contractual customer restrictions had a clearly anticompetitive effect in United States v. Klearflax Linen Looms, Inc., D.C., 63 F.Supp. 32, was one which could seemingly not have been made without a trial on the merits, even though the manufacturer involved held a position of virtual monopoly. See Note, Restricted Channels of Distribution Under the Sherman Act, 75 Harv.L.Rev. 795, 817—818 (1962).
1
H.R. 6544, 84th Cong., 1st Sess. The bill was never reported from the Committee.
2
Our recent certification of the amendment to the summary judgment procedure under Rule 56, quoted in the Court's opinion, will eliminate the problem posed here, i.e., the sufficiency of the record.
| 78
|
372 U.S. 368
83 S.Ct. 801
9 L.Ed.2d 821
James H. GRAY et al., Appellants,v.James O'Hear SANDERS.
No. 112.
Argued Jan. 17, 1963.
Decided March 18, 1963.
[Syllabus from pages 368-369 intentionally omitted]
B. D. Murphy and E. Freeman Leverett, Atlanta, Ga., for appellants.
Morris B. Abram, Atlanta, Ga., for appellee.
Atty. Gen., Robert F. Kennedy for the United States, as amicus curiae, by special leave of Court.
Mr. Justice DOUGLAS delivered the opinion of the Court.
I.
1
This suit was instituted by appellee, who is qualified to vote in primary and general elections in Fulton County, Georgia, to restrain appellants from using Georgia's county unit system as a basis for counting votes in a Democratic primary for the nomination of a United States Senator and statewide officers, and for declaratory relief. Appellants are the Chairman and Secretary of the Georgia State Democratic Executive Committee, and the Secretary of State of Georgia. Appellee alleges that the use of the county unit system in counting, tabulating, consolidating, and certifying votes cast in primary elections for statewide offices violates the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment and the Seventeenth Amendment. As the constitutionality of a state statute was involved and the question was a substantial one, a three-judge court was properly convened. See 28 U.S.C. § 2281; United States v. Georgia Public Service Comm., 371 U.S. 285, 83 S.Ct. 397, 9 L.Ed.2d 317.
2
Appellants moved to dismiss; and they also filed an answer denying that the county unit system was unconstitutional and alleging that it was designed 'to achieve a reasonable balance as between urban and rural electoral power.'
3
Under Georgia law each county is given a specified number of representatives in the lower House of the General Assembly.1 This county unit system at the time this suit was filed was employed as follows in statewide primaries:2 (1) Candidates for nominations who received the highest number of popular votes in a county were considered to have carried the county and to be entitled to two votes for each representative to which the county is entitled in the lower House of the General Assembly; (2) the majority of the county unit vote nominated a United States Senator and Governor; the plurality of the county unit vote nominated the others.
4
Appellee asserted that the total population of Georgia in 1960 was 3,943,116; that the population of Fulton County, where he resides, was 556,326; that the residents of Fulton County comprised 14.11% of Georgia's total population; but that, under the county unit system, the six unit votes of Fulton County constituted 1.46% of the total of 410 unit votes, or one-tenth of Fulton County's percentage of statewide population. The complaint further alleged that Echols County, the least populous county in Georgia, had a population in 1960 of 1,876, or .05% of the State's population, but the unit vote of Echols County was .48% of the total unit vote of all counties in Georgia, or 10 times Echols County's statewide percentage of population. One unit vote in Echols County represented 938 residents, whereas one unit vote in Fulton County represented 92,721 residents. Thus, one resident in Echols County had an influence in the nomination of candidates equivalent to 99 residents of Fulton County.
5
On the same day as the hearing in the District Court, Georgia amended the statutes challenged in the complaint. This amendment3 modified the county unit system by allocating units to counties in accordance with a 'bracket system' instead of doubling the number of representatives of each county in the lower House of the Georgia Assembly. Counties with from 0 to 15,000 people were allotted two units; an additional one unit was allotted for the next 5,000 persons; an additional unit for the next 10,000 persons; another unit for each of the next two brackets of 15,000 persons; and, thereafter, two more units for each increase of 30,000 persons. Under the amended Act, all candidates for statewide office (not merely for Senator and Governor as under the earlier Act) are required to receive a majority of the county unit votes to be entitled to nomination in the first primary. In addition, in order to be nominated in the first primary, a candidate has to receive a majority of the popular votes unless there are only two candidates for the nomination and each receives an equal number of unit votes, in which event the candidate with the popular majority wins. If no candidate receives both a majority of the unit votes and a majority of the popular votes, a second run-off primary is required between the candidate receiving the highest number of unit votes and the candidate receiving the highest number of popular votes. In the second primary, the candidate receiving the highest number of unit votes is to prevail. But again, if there is a tie in unit votes, the candidate with the popular majority wins.
6
Appellee was allowed to amend his complaint so as to challenge the amended Act. The District Court held that the amended Act had some of the vices of the prior Act. It stated that under the Amended Act 'the vote of each citizen counts for less and less as the population of the county of his residence increases.' 203 F.Supp. 158, 170, n. 10. It went on to say:
7
'There are 97 two-unit counties, totalling 194 unit votes, and 22 counties totalling 66 unit votes, altogether 260 unit votes, within 14 of a majority; but no county in the above has as much as 20,000 population. The remaining 40 counties range in population from 20,481 to 556,326, but they control altogether only 287 county unit votes. Combination of the units from the counties having the smallest population gives counties having population of one-third of the total in the state a clear majority of county units.' Ibid.
8
The District Court held that as a result of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, it had jurisdiction, that a justiciable case was stated, that appellee had standing, and that the Democratic primary in Georgia is 'state' action within the meaning of the Fourteenth Amendment. It held that the county unit system as applied violates the Equal Protection Clause, and it issued an injunction,4 not against conducting any party primary election under the county unit system, but against conducting such an election under a county unit system that does not meet the requirements specified by the court.5 203 F.Supp. 158. In other words, the District Court did not proceed on the basis that in a statewide election every qualified person was entitled to one vote and that all weighted voting was outlawed. Rather it allowed a county unit system to be used in weighting the votes if the system showed no greater disparity against a county than exists against any State in the conduct of national elections.6 Thereafter the Democratic Committee voted to hold the 1962 primary election for the statewide offices mentioned on a popular vote basis. We noted probable jurisdiction. 370 U.S. 921, 82 S.Ct. 1564, 8 L.Ed.2d 502.
II.
9
We agree with the District Court that the action of this party in the conduct of its primary constitutes state action within the meaning of the Fourteenth Amendment. Judge Sibley, writing for the court in Chapman v. King, 5 Cir., 154 F.2d 460, showed with meticulous detail the manner in which Georgia regulates the conduct of party primaries (id. pp. 463—464) and he concluded:
10
'We think these provisions show that the State, through the managers it requires, collaborates in the conduct of the primary, and puts its power behind the rules of the party. It adopts the primary as a part of the public election machinery. The exclusions of voters made by the party by the primary rules become exclusions enforced by the State.' Id., p. 464.
11
We agree with that result and conclude that state regulation of this preliminary phase of the election process makes it state action. See United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed 1368; Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987.
12
We also agree that appellee, like any person whose right to vote is impaired (Smith v. Allwright, supra; Baker v. Carr, supra, 369 U.S. pp. 204—208, 82 S.Ct. pp. 703—705), has standing to sue.7
13
Moreover, we think the case is not moot by reason of the fact that the Democratic Committee voted to hold the 1962 primary on a popular vote basis. But for the injunction issued below, the 1962 Act remains in force; and if the complaint were dismissed it would govern future elections. In addition, the voluntary abandonment of a practice does not relieve a court of adjudicating its legality, particularly where the practice is deeply rooted and long standing. For if the case were dismissed as moot appellants would be 'free to return to * * * (their) old ways.' United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303.
III.
14
On the merits we take a different view of the nature of the problem than did the District Court.
15
This case, unlike Baker v. Carr, supra, does not involve a question of the degree to which the Equal Protection Clause of the Fourteenth Amendment limits the authority of a State Legislature in designing the geographical districts from which representatives are chosen either for the State Legislature or for the Federal House of Representatives. Nor does it include the related problems of Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110, where 'gerrymandering' was used to exclude a minority group from participation in municipal affairs. Nor does it present the question, inherent in the bicameral form of our Federal Government, whether a State may have one house chosen without regard to population. The District Court, however, analogized Georgia's use of the county unit system in determining the results of a statewide election to phases of our federal system. It pointed out that under the electoral college,8 required by Art. II, § 1, of the Constitution and the Twelfth Amendment in the election of the President, voting strength 'is not in exact proportion to population * * *. Recognizing that the electoral college was set up as a compromise to enable the formation of the Union among the several sovereign states, it still could hardly be said that such a system used in a state among its counties, assuming rationality and absence of arbitrariness in end result, could be termed invidious.' 203 F.Supp., at 169.
16
Accordingly the District Court as already noted9 held that use of the county unit system in counting the votes in a statewide election was permissible 'if the disparity against any county is not in excess of the disparity that exists against any state in the most recent electoral college allocation.' 203 F.Supp., at 170. Moreover the District Court held that use of the county unit system in counting the votes in a statewide election was permissible 'if the disparity against any county is not in excess of the disparity that exists * * * under the equal proportions formula for representation of the several states in the Congress.' Ibid. The assumption implicit in these conclusions is that since equality is not inherent in the electoral college and since precise equality among blocs of votes in one State or in the several States when it comes to the election of members of the House of Representatives is never possible, precise equality is not necessary in statewide elections.
17
We think the analogies to the electoral college, to districting and redistricting, and to other phases of the problems of representation in state or federal legislatures or conventions10 are inapposite. The inclusion of the electoral college in the Constitution, as the result of specific historical concerns,11 validated the collegiate principle despite its inherent numerical inequality, but implied nothing about the use of an analogous system by a State in a statewide election. No such specific accommodation of the latter was ever undertaken, and therefore no validation of its numerical inequality ensued. Nor does the question here have anything to do with the composition of the state or federal legislature. And we intimate no opinion on the constitutional phases of that problem beyond what we said in Baker v. Carr, supra. The present case is only a voting case. 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; Smith v. Allwright, supra. Georgia gives every qualified voter one vote in a statewide election; but in counting those votes she employs the county unit system which in end result weights the rural vote more heavily than the urban vote and weights some small rural counties heavier than other larger rural counties.
18
States can within limits specify the qualifications of voters in both state and federal elections; the Constitution indeed makes voters' qualifications rest on state law even in federal elections. Art. I, § 2. As we held in Lassiter v. Northampton County Election Board, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072, a State may if it chooses require voters to pass literacy tests, provided of course that literacy is not used as a cloak to discriminate against one class or group. But we need not determine all the limitations that are placed on this power of a State to determine the qualifications of voters, for appellee, is a qualified voter.
19
The Fifteenth Amendment prohibits a State from denying or abridging a Negro's right to vote. The Nineteenth Amendment does the same for women. If a State in a statewide election weighted the male vote more heavily than the female vote or the white vote more heavily than the Negro vote, none could successfully contend that that discrimination was allowable. See Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152. How then can one person be given twice or 10 times the voting power of another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county? Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote—whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. The concept of 'we the people' under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications. The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many of our decisions.
20
The Court has consistently recognized that all qualified voters have a constitutionally protected right 'to cast their ballots and have them counted at Congressional elections.' United States v. Classic, 313 U.S. 299, 315, 61 S.Ct. 1031, 1037, 85 L.Ed. 1368; see Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; Wiley v. Sinkler, 179 U.S. 58, 21 S.Ct. 17, 45 L.Ed. 84; Swafford v. Templeton, 185 U.S. 487, 22 S.Ct. 783, 46 L.Ed. 1005. Every voter's vote is entitled to be counted once. It must be correctly counted and reported. As stated in United States v. Mosley, 238 U.S. 383, 386, 35 S.Ct. 904, 905, 59 L.Ed. 1355, 'the right to have one's vote counted' has the same dignity as 'the right to put a ballot in a box.' It can be protected from the diluting effect of illegal ballots. 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. And these rights must be recognized in any preliminary election that in fact determines the true weight a vote will have. See United States v. Classic, supra; Smith v. Allwright, supra. The concept of political equality in the voting booth contained in the Fifteenth Amendment extends to all phases of state elections, see Terry v. Adams, supra; and, as previously noted, there is no indication in the Constitution that homesite or occupation affords a permissible basis for distinguishing between qualified voters within the State.
21
The only weighting of votes sanctioned by the Constitution concerns matters of representation, such as the allocation of Senators irrespective of population and the use of the electoral college in the choice of a President. Yet when Senators are chosen, the Seventeenth Amendment states the choice must be made 'by the people.' Minors, felons, and other classes may be excluded. See Lassiter v. Northampton County Election Board, supra, 360 U.S. p. 51, 79 S.Ct. p. 990. But once the class of voters is chosen and their qualifications specified, we see no constitutional way by which equality of voting power may be evaded. As we stated in Gomillion v. Lightfoot, supra, 364 U.S. p. 347, 81 S.Ct. p. 130:
22
'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.'
23
The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.
24
While we agree with the District Court on most phases of the case and think it was right in enjoining the use of the county unit system12 in tabulating the votes, we vacate its judgment and remand the case so that a decree in conformity with our opinion may be entered.
25
It is so ordered.
26
Judgment vacated and case remanded.
27
Mr. Justice STEWART, whom Mr. Justice CLARK joins, concurring.
28
In joining the opinion and judgment of the Court, I emphasize what—but for my Brother HARLAN'S dissent—I should have thought would be apparent to all who read the Court's opinion. This case does not involve the validity of a State's apportionment of geographic constituencies from which representatives to the State's legislative assembly are chosen, nor any of the problems under the Equal Protection Clause which such litigation would present. We do not deal here with 'the basic ground rules implementing Baker v. Carr.' This case, on the contrary, involves statewide elections of a United States Senator and of state executive and judicial officers responsible to a statewide constituency. Within a given constituency, there can be room for but a single constitutional rule—one voter, one vote. United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368.
29
Mr. Justice HARLAN, dissenting.
30
When Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, was argued at the last Term we were assured that if this Court would only remove the roadblocks of Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, and its predecessors to judicial review in 'electoral' cases, this Court in all likelihood would never have to get deeper into such matters. State legislatures, it was predicted, would be prodded into taking satisfactory action by the mere prospect of legal proceedings.
31
These predictions have not proved true. As of November 1, 1962, the apportionment of seats in at least 30 state legislatures had been challenged in state and federal courts,1 and, besides this one, 10 electoral cases of one kind or another are already on this Court's docket.2 The present case is the first of these to reach plenary consideration.
32
Preliminarily, it is symptomatic of the swift pace of current constitutional adjudication that the majority opinion should have failed to mention any of the four occasions on which Georgia's County Unit System has previously been unsuccessfully challenged in this Court. Cook v. Fortson, decided with Turman v. Duckworth, 329 U.S. 675, 67 S.Ct. 21, 91 L.Ed. 596 (1946); South v. Peters, 339 U.S. 276, 70 S.Ct. 641, 94 L.Ed. 834 (1950); Cox v. Peters, 342 U.S. 936, 72 S.Ct. 559, 96 L.Ed. 697 (1952); and Hartsfield v. Sloan, 357 U.S. 916, 78 S.Ct. 1363, 2 L.Ed.2d 1363 (1958).
33
It is true that none of these cases reached the stage of full plenary consideration but, in light of the judicial history recounted by Mr. Justice Frankfurter in his dissenting opinion in Baker v. Carr, supra, 82 S.Ct. at 266, 278, 82 S.Ct. at 737, 743 et seq., only the guileless could fail to recognize that the prevailing view then was that the validity of this County Unit System was not open to serious constitutional doubt.3 This estimate of the earlier situation is highlighted by the dissenting opinion of Justices BLACK and DOUGLAS in South v. Peters, supra, 339 U.S. at 277, 70 S.Ct. at 642, in which they unsuccessfully espoused the very views which now become the law. Presumably my two Brothers also reflected these same views in noting their dissents in the Cox and Hartsfield cases. See also Cook v. Fortson, etc., supra, in which Mr. Justice BLACK also noted his dissent.
34
But even if the Court's present silence about these cases can be deemed justified on the premise that their summary disposition can be satisfactorily accounted for on grounds not involving the merits, I consider today's decision not supportable.
35
In the context of a nominating primary respecting candidates for statewide office, the Court construes the Equal Protection Clause of the Fourteenth Amendment as requiring that each person's vote be given equal weight. The majority says: 'The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.' Ante, p. 381. The Court then strikes down Georgia's County Unit System as such, a holding which the District Court declined to make. 203 F.Supp., at 170.
36
The Court's holding surely flies in the face of history. For, as impressively shown by the opinion of Frankfurter, J., in Baker v. Carr, 369 U.S., at 301—324, 82 S.Ct., at 755—767, 'one person, one vote' has never been the universally accepted political philosophy in England, the American Colonies, or in the United States. The significance of this historical fact seems indeed to be recognized by the Court, for it implies that its newfound formula might not obtain in a case involving the apportionment of seats in the 'State Legislature or for the Federal House of Representatives.' Ante, p. 376.
37
But, independently of other reasons that will be discussed in a moment, any such distinction finds persuasive refutation in the Federal Electoral College whereby the President of the United States is chosen on principles wholly opposed to those now held constitutionally required in the electoral process for statewide office. One need not close his eyes to the circumstance that the Electoral College was born in compromise, nor take sides in the various attempts that have been made to change the system,4 in order to agree with the court below that it 'could hardly be said that such a system used in a state among its counties, assuming rationality and absence of arbitrariness in end result, could be termed invidious.' 203 F.Supp., at 169.
38
Indeed this Court itself some 15 years ago rejected, in a comparable situation, the notion of political equality now pronounced. In MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, challenge was made to an Illinois law requiring that nominating petitions of a new political party be signed by at least 25,000 voters, including a minimum of 200 voters from each of at least 50 of the 102 counties in the State. The claim was that the '200 requirement' made it possible for 'the voters of the less populous counties * * * to block the nomination of candidates whose support is confined to geographically limited areas.' Id., at 283, 69 S.Ct. at 2. In disallowing this claim, the Court said (id., at 283 284, 69 S.Ct. at 2):
39
'To assume that political power is a function exclusively of numbers is to disregard the practicalities of government. Thus, the Constitution protects the interests of the smaller against the greater by giving in the Senate entirely unequal representation to populations. 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. The Constitution—a practical instrument of government—makes no such demands on the States.'
40
Certainly no support for this equal protection doctrine can be drawn from the Fifteenth, Seventeenth, or Nineteenth Amendment. The Fifteenth Amendment simply assures that the right to vote shall not be impaired 'on account of race, color, or previous condition of servitude.' The Seventeenth Amendment provides that Senators shall be 'elected by the people,' with no indication that all people must be accorded a vote of equal weight. The Nineteenth Amendment merely gives the vote to women. And it is hard to take seriously the argument that 'dilution' of a vote in consequence of a legislatively sanctioned electoral system can, without more, be analogized to an impairment of the political franchise by ballot box stuffing or other criminal activity, e.g., 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, or to the disenfranchisement of qualified voters on purely racial grounds, Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110.
41
A violation of the Equal Protection Clause thus cannot be found in the mere circumstance that the Georgia County Unit System results in disproportionate vote weighting. It 'is important for this court to avoid extracting from the very general language of the 14th Amendment a system of delusive exactness * * *.' Louisville & Nashville R. Co. v. Barber Asphalt Co., 197 U.S. 430, 434, 25 S.Ct. 466, 467, 49 L.Ed. 819 (Holmes, J.). What then remains of the equal protection claim in this case?
42
At the core of Georgia's diffusion of voting strength which favors the small as against the large counties is the urban-rural problem, so familiar in the American political scene. In my dissent in Baker v. Carr, 369 U.S., at 336, 82 S.Ct., at 774, I expressed the view that a State might rationally conclude that its general welfare was best served by apportioning more seats in the legislature to agricultural communities than to urban centers, lest the legitimate interests of the former be submerged in the stronger electoral voice of the latter. In my opinion, recognition of the same factor cannot be deemed irrational in the present situation even though all of the considerations supporting its use in a legislative apportionment case are not present here.
43
Given the undeniably powerful influence of a state governor on law and policy making,5 I do not see how it can be deemed irrational for a State to conclude that a candidate for such office should not be one whose choice lies with the numerically superior electoral strength of urban voters. By like token, I cannot consider it irrational for Georgia to apply its County Unit System to the selection of candidates for other statewide offices6 in order to assure against a predominantly 'city point of view' in the administration of the State's affairs.
44
On the existing record, this leaves the question of 'irrationality' in this case to be judged on the basis of pure arithmetic. The Court by its 'one person, one vote' theory in effect avoids facing up to that problem, but the District Court did face it, holding that the disparities in voting strength between the largest county (Fulton) and the four smallest counties (Webster, Glascock, Quitman, and Echols), running respectively 8 to 1, 10 to 1, 11 to 1, and 14 to 1 in favor of the latter,7 were invidiously discriminatory. But it did not tell us why. I do not understand how, on the basis of these mere numbers, unilluminated as they are by any of the complex and subtle political factors involved, a court of law can say, except by judicial fiat, that these disparities are in themselves constitutionally invidious.
45
The disproportions in the Georgia County Unit System are indeed not greatly out of line with those existing under the Electoral College count for the Presidency. The disparity in population per Electoral College vote between New York (the largest State in the 1960 census) and Alaska (the smallest) was about 5 to 1.8 There are only 15 Georgia counties, out of a total of 159, which have a greater disparity per unit vote, and of these 15 counties 4 have disparity of less than 6 to 1. It is thus apparent that a slight modification of the Georgia plan could bring it within the tolerance permitted in the federal scheme.
46
It was of course imponderables like these that lay at the root of the Court's steadfast pre-Baker v. Carr refusal 'to enter (the) political thicket.' Colegrove v. Green, supra, 328 U.S. at 556, 66 S.Ct. at 1201. Having turned its back on this wise chapter in its history, the Court, in my view, can no longer escape the necessity of coming to grips with the thorny problems it so studiously strove to avoid in Baker v. Carr (see concurring opinion of STEWART, J., 369 U.S., at 265, 82 S.Ct., at 736, and dissenting opinion of HARLAN, J., id., at 339, 82 S.Ct. at 775) and in two subsequent cases, Scholle v. Hare, 369 U.S. 429, 430, 82 S.Ct. 910, 8 L.Ed.2d 1 (concurring opinion of CLARK, J., and STEWART, J.), 430—435, 82 S.Ct. 910—913 (dissenting opinion of HARLAN, J.); W.M.C.A., Inc., v. Simon, 370 U.S. 190, 191—194, 82 S.Ct. 1234, 1235—1236, 8 L.Ed.2d 430 (dissenting opinion of HARLAN, J.). To regard this case as being outside the general stream of electoral cases because only two other States, Maryland and Mississippi, have county unit systems, is to hide one's head in the sand.
47
What then should be the test of 'rationality' in this judicially unfamiliar field? My Brother CLARK has perhaps given us a clue in the legislative inactivity—absence of any other remedy crazy quilt approach contained in his concurring opinion in Baker v. Carr, supra, at 369 U.S. 253-262, 82 S.Ct. 729—734. But I think a formulation of the basic ground rules in this untrod area of judicial competence should await a fully developed record. This case is here at an interlocutory stage. The temporary injunction before us issued upon a record consisting only of the pleading, answers to interrogatories, affidavits, statistical material, and what the lower court described as a 'liberal use of our right to take judicial notice of matters of common knowledge and public concern.' 203 F.Supp., at 160, n. 1. No full-dress exploration of any of the many intricate questions involved in establishing criteria for judging 'rationality' took place, the opinion and decree below issued the day following the hearing, and the District Court observed that, while its standards of equal protection (which this Court now puts aside) 'may appear doctrinaire to some extent,' it was constrained to act as it did because of the then (but no longer existing)9 urgency of the situation. 203 F.Supp., at 170.
48
Surely, if the Court's 'one person, one vote' ideology is constitutionally untenable, as I think it clearly is, the basic ground rules implementing Baker v. Carr should await the trial of this or some other case in which we have before us a fully developed record. Only then can we know what we are doing. Cf. White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696. A matter which so profoundly touches the barriers between federal judicial and state legislative authority demands nothing less.
49
I would vacate the judgment of the District Court and remand the case for trial.
1
Ga.Const.1945, Art. III, § III, I:
'The House of Representatives shall consist of representatives apportioned among the several counties of the State as follows: To the eight counties having the largest population, three representatives each; to the thirty counties having the next largest population, two representatives each; and to the remaining counties, one representative each.'
2
Ga.Code Ann. §§ 34—3212, 34—3213 (1936).
3
Ga.Laws 1962, Ex.Sess., No. 1, p. 1217; Ga.Code Ann., §§ 34—3212, 34—3213 (1962).
4
The order, dated April 28, 1962, was not restricted to the party primary of September 12, 1962; nor was the relief asked so restricted.
5
The District Court in its order defined the type of county unit system which violated the Equal Protection Clause as follows:
'A county unit system for use in a party primary is invidiously discriminatory if any unit has less than its share to the nearest whole number proportionate to population, or to the whole of the vote in a recent party gubernatorial primary, or to the vote for electors of the party in the most recent presidential election; provided, no discrimination is deemed to be invidious under such system if the disparity against any county is not in excess of the disparity that exists as against any state in the most recent electoral college allocation, or under the equal proportions formula for representation of the several states in the Congress of the United States, and, provided provision is made for allocations to be adjusted to accord with changes in the basis at least once each ten years.'
6
See note 5, supra.
7
Chief Justice Holt stated over 250 years ago:
'A right that a man has to give his vote at the election of a person to represent him in parliament, there to concur to the making of laws, which are to bind his liberty and property, is a most transcendent thing, and of an high nature * * *. (I)t is a great injury to deprive * * * (him) of it. * * *
'* * * It would look very strange, when the commons of England are so fond of their right of sending representatives to parliament, that it should be in the power of a sheriff, or other officer, to deprive them of that right, and yet that they should have no remedy * * *. This right of voting is a right in the plaintiff by the common law, and consequently he shall maintain an action for the obstruction of it. * * *
'But in the principal case my brother says, we cannot judge of this matter, because it is a parliamentary thing. O! by all means be very tender of that. Besides it is intricate, and there may be contrariety of opinions. * * * 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. But they say, that this is a matter out of our jurisdiction, and we ought not to inlarge it. I agree we ought not to incroach or inlarge our jurisdiction; * * * but sure we may determine on a charter granted by the king, or on a matter of custom or prescription, when it comes before us without incroaching on the parliament. And if it be a matter within our jurisdiction, we are bound by our oaths to judge of it. This is a matter of property determinable before us. Was ever such a petition heard of in parliament, as that a man was hindered of giving his vote, and praying them to give him remedy? The parliament undoubtedly would say, take your remedy at law. It is not like the case of determining the right of election between the candidates.' Ashby v. White, 2 Ld.Raym. 938, 953, 954, 956 (1702).
8
The electoral college was designed by men who did not want the election of the President to be left to the people. See S. Doc. No. 97, Survey of the Electoral College in the Political System of the United States, 79th Cong., 1st Sess. 'George Washington was elected to the office of Chief Magistrate of the Nation, by 69 votes—the total num-
ber cast by the electors. At that time, three States did not vote. New York had not yet passed an electoral law, and North Carolina and Rhode Island had not yet ratified the Constitution. Therefore, of an estimated population of 4,000,000 people, a President was chosen by 69 voters, who had not been selected by the people, but appointed by State legislatures, save in the instances of Maryland and Virginia.' Id., p. 4.
Hamilton expressed the philosophy behind the electoral college in The Federalist No. 68. 'This process of election affords a moral certainty, that the office of president, will seldom fall to the lot of any man, who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue and the little arts of popularity may alone suffice to elevate a man to the first honors in a single state; but it will require other talents and a different kind of merit to establish him in the esteem and confidence of the whole union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of president of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters preeminent for ability and virtue. And this will be thought no inconsiderable recommendation of the constitution, by those, who are able to estimate the share, which the executive in every government must necessarily have in its good or ill administration.'
Passage of the Fifteenth, Seventeenth, and Nineteenth Amendments shows that this conception of political equality belongs to a bygone day, and should not be considered in determining what the Equal Protection Clause of the Fourteenth Amendment requires in statewide elections.
9
See note 5, supra.
10
We do not reach here the questions that would be presented were the convention system used for nominating candidates in lieu of the primary system.
11
See note 8, supra.
12
The county unit system, even in its amended form (see note 3, supra) would allow the candidate winning the popular vote in the county to have the entire unit vote of that county. Hence the weighting of votes would continue, even if unit votes were allocated strictly in proportion to population. Thus if a candidate won 6,000 of 10,000 votes in a particular county, he would get the entire unit vote, the 4,000 other votes for a different candidate being worth nothing and being counted only for the purpose of being discarded.
1
Advisory Commission on Intergovernmental Relations, Report on Apportionment of State Legislatures, December 1962, p. A—21. I have been informed by the Administrative Office of the United States Courts that, by December 31, 1962, over 25 suits had been filed in the federal courts alone.
2
No. 460, WMCA, Inc., v. Simon; No. 507, Wesberry v. Sanders; No. 508, Reynolds v. Sims; No. 517, Beadle v. Scholle; No. 540, Vann v. Frink; No. 554, Maryland Comm. for Fair Representation v. Tawes; No. 610, McConnell v. Frink; No. 688, Price v. Moss; No. 689, Oklahoma Farm Bureau v. Moss; No. 797, Davis v. Mann.
3
Although the Solicitor General, as amicus, suggests that the Court's action in South v. Peters rested simply on a refusal to exercise federal equity power, it should be noted that the first case cited in the Court's per curiam affirmance is MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3. See infra, p. 385.
4
See Wechsler, Presidential Elections and the Constitution: A Comment on Proposed Amendment, 35 A.B.A.J. 181 (1949).
5
The Georgia Constitution vests in the Governor the State's 'executive power,' and authorizes him to recommend legislation, make reports to and call extraordinary sessions of the State General Assembly, issue writs of election to fill vacancies in the General Assembly, veto or approve bills and resolutions, and require reports from the various departments of the State. Ga.Const. of 1945, Art. V, §§ 2—3001 to 2—3017. Also, by statute, payments cannot be made from the state treasury without a warrant issued by the Governor, Ga.Code Ann., § 40—204, and in the event of a public emergency the Governor is authorized to promulgate and enforce such rules and regulations as are necessary to prevent, control, or quell violence, threatened or actual, Ga.Code Ann., § 40—213.
6
Those involved in this case, besides Governor, are United States Senator, Lieutenant Governor, Secretary of State, Justice of the Supreme Court, Judge of the Court of Appeals, Attorney General, Comptroller General, Commissioner of Labor, and Treasurer. The Governor has a general power to fill vacancies in such offices, unless otherwise provided by law. Ga.Const. of 1945, Art. V, § 1, par. 13, § 2—3013.
7
Population Ratio to
per Fulton
County Population Unit Vote Unit Vote County
Fulton... 556,326. 40. 13,908
DeKalb... 256,782. 20. 12,839
Chatham.. 188,299. 16. 11,760
Muscogee. 158,623. 14. 11,330
Webster.... 3,247. 2. 1,623 8 to 1
Glascock... 2,672. 2. 1,336 10 to 1
Quitman.... 2,432. 2. 1,216 11 to 1
Echols..... 1,876. 2. 938 14 to 1
8
Statistical Abstract of the United States 10,366 (1962).
9
Following the District Court's injunction, a statewide direct primary was held.
| 12
|
372 U.S. 522
83 S.Ct. 887
9 L.Ed.2d 965
James FIELDS et al.v.SOUTH CAROLINA.
No. 399.
Supreme Court of the United States
March 18, 1963
Jack Greenberg, Constance Baker Motley, Matthew J. Perry and Lincoln C. Jenkins, Jr., for petitioners.
Daniel R. McLeod, Atty. Gen. of South Carolina, Everett N. Brandon, Asst. Atty. Gen., and Julian S. Wolfe, for respondent.
On Petition for Writ of Certiorari to the Supreme Court of South Carolina.
PER CURIAM.
1
The petition for writ of certiorari is granted. The judgment of the Supreme Court of South Carolina is vacated and the case is remanded for consideration in light of Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680.
2
Mr. Justice CLARK dissents for the reasons expressed in his dissenting opinion in Edwards v. South Carolina, supra.
| 23
|
372 U.S. 335
83 S.Ct. 792
9 L.Ed.2d 799
Clarence Earl GIDEON, Petitioner,v.Louie L. WAINWRIGHT, Director, Division of Corrections.
No. 155.
Argued Jan. 15, 1963.
Decided March 18, 1963.
[Syllabus from 336 intentionally omitted]
Abe Fortas, Washington, D.C., for petitioner.
Bruce R. Jacob, Tallahassee, Fla., for respondent.
J. Lee Rankin, New York City, for American Civil Liberties Union, amicus curiae, by special leave of Court.
George D. Mentz, Montgomery, Ala., for State of Alabama, amicus curiae.
Mr. Justice BLACK delivered the opinion of the Court.
1
Petitioner was charged in a Florida state court with having broken and entered a poolroom with intent to commit a misdemeanor. This offense is a felony under
[Amicus Curiae intentionally omitted] Florida law. Appearing in court without funds and without a lawyer, petitioner asked the court to appoint counsel for him, whereupon the following colloquy took place:
2
'The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.
3
'The DEFENDANT: The United States Supreme Court says I am entitled to be represented by Counsel.'
4
Put to trial before a jury, Gideon conducted his defense about as well as could be expected from a layman. He made an opening statement to the jury, cross-examined the State's witnesses, presented witnesses in his own defense, declined to testify himself, and made a short argument 'emphasizing his innocence to the charge contained in the Information filed in this case.' The jury returned a verdict of guilty, and petitioner was sentenced to serve five years in the state prison. Later, petitioner filed in the Florida Supreme Court this habeas corpus petitioner attacking his conviction and sentence on the ground that the trial court's refusal to appoint counsel for him denied him rights 'guaranteed by the Constitution and the Bill of Rights by the United States Government.'1 Treating the petition for habeas corpus as properly before it, the State Supreme Court, 'upon consideration thereof' but without an opinion, denied all relief. Since 1942, when Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, was decided by a divided Court, the problem of a defendant's federal constitutional right to counsel in a state court has been a continuing source of controversy and litigation in both state and federal courts.2 To give this problem another review here, we granted certiorari. 370 U.S. 908, 82 S.Ct. 1259, 8 L.Ed.2d 403. Since Gideon was proceeding in forma pauperis, we appointed counsel to represent him and requested both sides to discuss in their briefs and oral arguments the following: 'Should this Court's holding in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, be reconsidered?'
I.
5
The facts upon which Betts claimed that he had been unconstitutionally denied the right to have counsel appointed to assist him are strikingly like the facts upon which Gideon here bases his federal constitutional claim. Betts was indicted for robbery in a Maryland state court. On arraignment, he told the trial judge of his lack of funds to hire a lawyer and asked the court to appoint one for him. Betts was advised that it was not the practice in that county to appoint counsel for indigent defendants except in murder and rape cases. He then pleaded not guilty, had witnesses summoned, cross-examined the State's witnesses, examined his own, and chose not to testify himself. He was found guilty by the judge, sitting without a jury, and sentenced to eight years in prison. Like Gideon, Betts sought release by habeas corpus, alleging that he had been denied the right to assistance of counsel in violation of the Fourteenth Amendment. Betts was denied any relief, and on review this Court affirmed. It was held that a refusal to appoint counsel for an indigent defendant charged with a felony did not necessarily violate the Due Process Clause of the Fourteenth Amendment, which for reasons given the Court deemed to be the only applicable federal constitutional provision. The Court said:
6
'Asserted denial (of due process) is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.' 316 U.S., at 462, 62 S.Ct., at 1256, 86 L.Ed. 1595.
7
Treating due process as 'a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights,' the Court held that refusal to appoint counsel under the particular facts and circumstances in the Betts case was not so 'offensive to the common and fundamental ideas of fairness' as to amount to a denial of due process. Since the facts and circumstances of the two cases are so nearly indistinguishable, we think the Betts v. Brady holding if left standing would require us to reject Gideon's claim that the Constitution guarantees him the assistance of counsel. Upon full reconsideration we conclude that Betts v. Brady should be overruled.
II.
8
The Sixth Amendment provides, 'In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.' We have construed this to mean that in federal courts counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived.3 Betts argued that this right is extended to indigent defendants in state courts by the Fourteenth Amendment. In response the Court stated that, while the Sixth Amendment laid down 'no rule for the conduct of the states, the question recurs whether the constraint laid by the amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the states by the Fourteenth Amendment.' 316 U.S., at 465, 62 S.Ct., at 1257, 86 L.Ed. 1595. In order to decide whether the Sixth Amendment's guarantee of counsel is of this fundamental nature, the Court in Betts set out and considered '(r)elevant data on the subject * * * afforded by constitutional and statutory provisions subsisting in the colonies and the states prior to the inclusion of the Bill of Rights in the national Constitution, and in the constitutional, legislative, and judicial history of the states to the present date.' 316 U.S., at 465, 62 S.Ct., at 1257. On the basis of this historical data the Court concluded that 'appointment of counsel is not a fundamental right, essential to a fair trial.' 316 U.S. at 471, 62 S.Ct., at 1261. It was for this reason the Betts Court refused to accept the contention that the Sixth Amendment's guarantee of counsel for indigent federal defendants was extended to or, in the words of that Court, 'made obligatory upon the states by the Fourteenth Amendment'. Plainly, had the Court concluded that appointment of counsel for an indigent criminal defendant was 'a fundamental right, essential to a fair trial,' it would have held that the Fourteenth Amendment requires appointment of counsel in a state court, just as the Sixth Amendment requires in a federal court.
9
We think the Court in Betts had ample precedent for acknowledging that those guarantees of the Bill of Rights which are fundamental safeguards of liberty immune from federal abridgment are equally protected against state invasion by the Due Process Clause of the Fourteenth Amendment. This same principle was recognized, explained, and applied in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), a case upholding the right of counsel, where the Court held that despite sweeping language to the contrary in Hurtado v. California, 110 U.S. 516, 4 S.Ct. 292, 28 L.Ed. 232 (1884), the Fourteenth Amendment 'embraced' those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions," even though they had been 'specifically dealt with in another part of the Federal Constitution.' 287 U.S., at 67, 53 S.Ct., at 63, 77 L.Ed. 158. In many cases other than Powell and Betts, this Court has looked to the fundamental nature of original Bill of Rights guarantees to decide whether the Fourteenth Amendment makes them obligatory on the States. Explicitly recognized to be of this 'fundamental nature' and therefore made immune from state invasion by the Fourteenth, or some part of it, are the First Amendment's freedoms of speech, press, religion, assembly, association, and petition for redress of grievances.4 For the same reason, though not always in precisely the same terminology, the Court has made obligatory on the States the Fifth Amendment's command that private property shall not be taken for public use without just compensation,5 the Fourth Amendment's prohibition of unreasonable searches and seizures,6 and the Eighth's ban on cruel and unusual punishment.7 On the other hand, this Court in Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), refused to hold that the Fourteenth Amendment made the double jeopardy provision of the Fifth Amendment obligatory on the States. In so refusing, however, the Court, speaking through Mr. Justice Cardozo, was careful to emphasize that 'immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states' and that guarantees 'in their origin * * * effective against the federal government alone' had by prior cases 'been taken over from the earlier articles of the Federal Bill of Rights and brought within the Fourteenth Amendment by a process of absorption.' 302 U.S., at 324—325, 326, 58 S.Ct., at 152.
10
We accept Betts v. Brady's assumption, based as it was on our prior cases, that a provision of the Bill of Rights which is 'fundamental and essential to a fair trial' is made obligatory upon the States by the Fourteenth Amendment. We think the Court in Betts was wrong, however, in concluding that the Sixth Amendment's guarantee of counsel is not one of these fundamental rights. Ten years before Betts v. Brady, this Court, after full consideration of all the historical data examined in Betts, had unequivocally declared that 'the right to the aid of counsel is of this fundamental character.' Powell v. Alabama, 287 U.S. 45, 68, 53 S.Ct. 55, 63, 77 L.Ed. 158 (1932). While the Court at the close of its Powell opinion did by its language, as this Court frequently does, limit its holding to the particular facts and circumstances of that case, its conclusions about the fundamental nature of the right to counsel are unmistakable. Several years later, in 1936, the Court reemphasized what it had said about the fundamental nature of the right to counsel in this language:
11
'We concluded that certain fundamental rights, safeguarded by the first eight amendments against federal action, were also safeguarded against state action by the due process of law clause of the Fourteenth Amendment, and among them the fundamental right of the accused to the aid of counsel in a criminal prosecution.' Grosjean v. American Press Co., 297 U.S. 233, 243—244, 56 S.Ct. 444, 446, 80 L.Ed. 660 (1936).
And again in 1938 this Court said:
12
'(The assistance of counsel) is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. * * * The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not 'still be done." Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938). To the same effect, see Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940), and Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859 (1941).
13
In light of these and many other prior decisions of this Court, it is not surprising that the Betts Court, when faced with the contention that 'one charged with crime, who is unable to obtain counsel, must be furnished counsel by the state,' conceded that '(e)xpressions in the opinions of this court lend color to the argument * * *' 316 U.S., at 462—463, 62 S.Ct., at 1256, 86 L.Ed. 1595. The fact is that in deciding as it did—that 'appointment of counsel is not a fundamental right, essential to a fair trial'—the Court in Betts v. Brady made an abrupt break with its own well-considered precedents. In returning to these old precedents, sounder we believe than the new, we but restore constitutional principles established to achieve a fair system of justice. Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the wide—spread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. A defendant's need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama:
14
'The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.' 287 U.S., at 68—69, 53 S.Ct., at 64, 77 L.Ed. 158.
15
The Court in Betts v. Brady departed from the sound wisdom upon which the Court's holding in Powell v. Alabama rested. Florida, supported by two other States, has asked that Betts v. Brady be left intact. Twenty-two States, as friends of the Court, argue that Betts was 'an anachronism when handed down' and that it should now be overruled. We agree.
16
The judgment is reversed and the cause is remanded to the Supreme Court of Florida for further action not inconsistent with this opinion.
17
Reversed.
18
Mr. Justice DOUGLAS.
19
While I join the opinion of the Court, a brief historical resume of the relation between the Bill of Rights and the first section of the Fourteenth Amendment seems pertinent. Since the adoption of that Amendment, ten Justices have felt that it protects from infringement by the States the privileges, protections, and safeguards granted by the Bill of Rights.
20
Justice Field, the first, Justice Harlan, and probably Justice Brewer, took that position in O'Neil v. Vermont, 144 U.S. 323, 362—363, 370—371, 12 S.Ct. 693, 708, 711, 36 L.Ed. 450, as did Justices Black, Douglas, Murphy and Rutledge in Adamson v. California, 332 U.S. 46, 71—72, 124, 67 S.Ct. 1672, 1683, 1686, 91 L.Ed. 1903. And see Poe v. Ullman, 367 U.S. 467, 515—522, 81 S.Ct. 1752, 6 L.Ed.2d 989 (dissenting opinion). That view was also expressed by Justices Bradley and Swayne in the Slaughter-House Cases, 16 Wall. 36, 118—119, 122, 21 L.Ed. 394, and seemingly was accepted by Justice Clifford when he dissented with Justice Field in Walker v. Sauvinet, 92 U.S. 90, 92, 23 L.Ed. 678.1 Unfortunately it has never commanded a Court. Yet, happily, all constitutional questions are always open. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. And what we do today does not foreclose the matter.
21
My Brother HARLAN is of the view that a guarantee of the Bill of Rights that is made applicable to the States by reason of the Fourteenth Amendment is a lesser version of that same guarantee as applied to the Federal Government.2 Mr. Justice Jackson shared that view.3
22
But that view has not prevailed4 and rights protected against state invasion by the Due Process Clause of the Fourteenth Amendment are not watered-down versions of what the Bill of Rights guarantees.
23
Mr. Justice CLARK, concurring in the result.
24
In Bute v. Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986 (1948) this Court found no special circumstances requiring the appointment of counsel but stated that 'if these charges had been capital charges, the court would have been required, both by the state statute and the decisions of this Court interpreting the Fourteenth Amendment, to take some such steps.' Id., at 674, 68 S.Ct., at 780. Prior to that case I find no language in any cases in this Court indicating that appointment of counsel in all capital cases was required by the Fourteenth Amendment.1 At the next Term of the Court Mr. Justice Reed revealed that the Court was divided as to noncapital cases but that 'the due process clause * * * requires counsel for all persons charged with serious crimes * * *.' Uveges v. Pennsylvania, 335 U.S. 437, 441, 69 S.Ct. 184, 186, 93 L.Ed. 127 (1948). Finally, in Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), we said that '(w)hen one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted.' Id., at 55, 82 S.Ct., at 159.
25
That the Sixth Amendment requires appointment of counsel in 'all criminal prosecutions' is clear, both from the language of the Amendment and from this Court's interpretation. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). It is equally clear from the above cases, all decided after Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), that the Fourteenth Amendment requires such appointment in all prosecutions for capital crimes. The Court's decision today, then, does no more than erase a distinction which has no basis in logic and an increasingly eroded basis in authority. In Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960), we specifically rejected any constitutional distinction between capital and noncapital offenses as regards congressional power to provide for court-martial trials of civilian dependents of armed forces personnel. Having previously held that civilian dependents could not constitutionally be deprived of the protections of Article III and the Fifth and Sixth Amendments in capital cases, Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), we held that the same result must follow in noncapital cases. Indeed, our opinion there foreshadowed the decision today,2 as we noted that:
26
'Obviously Fourteenth Amendment cases dealing with state action have no application here, but if they did, we believe that to deprive civilian dependents of the safeguards of a jury trial here * * * would be as invalid under those cases as it would be in cases of a capital nature.' 361 U.S., at 246—247, 80 S.Ct., at 304, 4 L.Ed.2d 268.
27
I must conclude here, as in Kinsella, supra, that the Constitution makes no distinction between capital and noncapital cases. The Fourteenth Amendment requires due process of law for the deprival of 'liberty' just as for deprival of 'life,' and there cannot constitutionally be a difference in the quality of the process based merely upon a supposed difference in the sanction involved. How can the Fourteenth Amendment tolerate a procedure which it condemns in capital cases on the ground that deprival of liberty may be less onerous than deprival of life—a value judgment not universally accepted3—or that only the latter deprival is irrevocable? I can find no acceptable rationalization for such a result, and I therefore concur in the judgment of the Court.
28
Mr. Justice HARLAN, concurring.
29
I agree that Betts v. Brady should be overruled, but consider it entitled to a more respectful burial than has been accorded, at least on the part of those of us who were not on the Court when that case was decided.
30
I cannot subscribe to the view that Betts v. Brady represented 'an abrupt break with its own well-considered precedents.' Ante, p. 344. In 1932, in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, a capital case, this Court declared that under the particular facts there presented—'the ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility * * * and above all that they stood in deadly peril of their lives' (287 U.S., at 71, 53 S.Ct., at 65)—the state court had a duty to assign counsel for the trial as a necessary requisite of due process of law. It is evident that these limiting facts were not added to the opinion as an after-thought; they were repeatedly emphasized, see 287 U.S., at 52, 57—58, 71, 53 S.Ct., at 58, 59—60, 65 and were clearly regarded as important to the result.
31
Thus when this Court, a decade later, decided Betts v. Brady, it did no more than to admit of the possible existence of special circumstances in noncapital as well as capital trials, while at the same time insisting that such circumstances be shown in order to establish a denial of due process. The right to appointed counsel had been recognized as being considerably broader in federal prosecutions, see Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, but to have imposed these requirements on the States would indeed have been 'an abrupt break' with the almost immediate past. The declaration that the right to appointed counsel in state prosecutions, as established in Powell v. Alabama, was not limited to capital cases was in truth not a departure from, but an extension of, existing precedent.
32
The principles declared in Powell and in Betts, however, have had a troubled journey throughout the years that have followed first the one case and then the other. Even by the time of the Betts decision, dictum in at least one of the Court's opinions had indicated that there was an absolute right to the services of counsel in the trial of state capital cases.1 Such dicta continued to appear in subsequent decisions,2 and any lingering doubts were finally eliminated by the holding of Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114.
33
In noncapital cases, the 'special circumstances' rule has continued to exist in form while its substance has been substantially and steadily eroded. In the first decade after Betts, there were cases in which the Court found special circumstances to be lacking, but usually by a sharply divided vote.3 However, no such decision has been cited to us, and I have found none, after Quicksall v. Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188 decided in 1950. At the same time, there have been not a few cases in which special circumstances were found in little or nothing more than the 'complexity' of the legal questions presented, although those questions were often of only routine difficulty.4 The Court has come to recognize, in other words, that the mere existence of a serious criminal charge constituted in itself special circumstances requiring the services of counsel at trial. In truth the Betts v. Brady rule is no longer a reality.
34
This evolution, however, appears not to have been fully recognized by many state courts, in this instance charged with the front-line responsibility for the enforcement of constitutional rights.5 To continue a rule which is honored by this Court only with lip service is not a healthy thing and in the long run will do disservice to the federal system.
35
The special circumstances rule has been formally abandoned in capital cases, and the time has now come when it should be similarly abandoned in noncapital cases, at least as to offenses which, as the one involved here, carry the possibility of a substantial prison sentence. (Whether the rule should extend to all criminal cases need not now be decided.) This indeed does no more than to make explicit something that has long since been foreshadowed in our decisions.
36
In agreeing with the Court that the right to counsel in a case such as this should now be expressly recognized as a fundamental right embraced in the Fourteenth Amendment, I wish to make a further observation. When we hold a right or immunity, valid against the Federal Government, to be 'implicit in the concept of ordered liberty'6 and thus valid against the States, I do not read our past decisions to suggest that by so holding, we automatically carry over an entire body of federal law and apply it in full sweep to the States. Any such concept would disregard the frequently wide disparity between the legitimate interests of the States and of the Federal Government, the divergent problems that they face, and the significantly different consequences of their actions. Cf. Roth v. United States, 354 U.S. 476, 496—508, 77 S.Ct. 1304, 1315—1321, 1 L.Ed.2d 1498 (separate opinion of this writer). In what is done today I do not understand the Court to depart from the principles laid down in Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, or to embrace the concept that the Fourteenth Amendment 'incorporates' the Sixth Amendment as such.
37
On these premises I join in the judgment of the Court.
1
Later in the petition for habeas corpus, signed and apparently prepared by petitioner himself, he stated, 'I, Clarence Earl Gideon, claim that I was denied the rights of the 4th, 5th and 14th amendments of the Bill of Rights.'
2
Of the many such cases to reach this Court, recent examples are Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Hudson v. North Carolina, 363 U.S. 697, 80 S.Ct. 1314, 4 L.Ed.2d 1500 (1960); Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957). Illustrative cases in the state courts are Artrip v. State, 41 Ala.App. 492, 136 So.2d 574 (Ct.App.Ala.1962); Shaffer v. Warden, 211 Md. 635, 126 A.2d 573 (1956). For examples of commentary, see Allen, The Supreme Court, Federalism, and State Systems of Criminal Justice, 8 De Paul L.Rev. 213 (1959); Kamisar, The Right to Counsel and the Fourteenth Amendment: A Dialogue on 'The Most Pervasive Right' of an Accused, 30 U. of Chi.L.Rev. 1 (1962); The Right to Counsel, 45 Minn.L.Rev. 693 (1961).
3
Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
4
E.g., Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138 (1925) (speech and press); Lovell v. City of Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949 (1938) (speech and press); Staub v. City of Baxley, 355 U.S. 313, 321, 78 S.Ct. 277, 281, 2 L.Ed.2d 302 (1958) (speech); Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S.Ct. 444, 446, 80 L.Ed. 660 (1936) (press); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940) (religion); De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278 (1937) (assembly); Shelton v. Tucker, 364 U.S. 479, 486, 488, 81 S.Ct. 247, 251, 252, 5 L.Ed.2d 231 (1960) (association); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296, 81 S.Ct. 1333, 1335, 6 L.Ed.2d 301 (1961) (association); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680 (1963) (speech, assembly, petition for redress of grievances).
5
E.g., Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 235 241, 17 S.Ct. 581, 584—586, 41 L.Ed. 979 (1897); Smyth v. Ames, 169 U.S. 466, 522—526, 18 S.Ct. 418, 424—426, 42 L.Ed. 819 (1898).
6
E.g., Wolf v. Colorado, 338 U.S. 25, 27—28, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949); Elkins v. United States, 364 U.S. 206, 213, 80 S.Ct. 1437, 1441, 4 L.Ed.2d 1669 (1960); Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961).
7
Robinson v. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962).
1
Justices Bradley, Swayne and Field emphasized that the first eight Amendments granted citizens of the United States certain privileges and immunities that were protected from abridgment by the States by the Fourteenth Amendment. See Slaughter-House Cases, supra, 16 Wall. at 118—119, 21 L.Ed. 394; O'Neil v. Vermont, supra, 144 U.S. at 363, 12 S.Ct. 708, 36 L.Ed. 450. Justices Harlan and Brewer accepted the same theory in the O'Neil case (see id., at 370—371, 12 S.Ct. at 711), though Justice Harlan indicated that all 'persons,' not merely 'citizens,' were given this protection. Ibid. In Twining v. New Jersey, 211 U.S. 78, 117, 29 S.Ct. 14, 27, 53 L.Ed. 97, Justice Harlan's position was made clear:
'In my judgment, immunity from self-incrimination is protected against hostile state action, not only by * * * (the Privileges and Immunities Clause), but (also) by * * * (the Due Process Clause).'
Justice Brewer, in joining the opinion of the Court, abandoned the view that the entire Bill of Rights applies to the States in Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597.
2
See Roth v. United States, 354 U.S. 476, 501, 506, 77 S.Ct. 1304, 1317, 1320, 1 L.Ed.2d 1498; Smith v. California, 361 U.S. 147, 169, 80 S.Ct. 215, 227, 4 L.Ed.2d 205.
3
Beauharnais v. Illinois, 343 U.S. 250, 288, 72 S.Ct. 725, 746, 96 L.Ed. 919. Cf. the opinions of Justices Holmes and Brandeis in Gitlow v. New York, 268 U.S. 652, 672, 45 S.Ct. 625, 632, 69 L.Ed. 1138, and Whitney v. California, 274 U.S. 357, 372, 47 S.Ct. 641, 647, 71 L.Ed. 1095.
4
The cases are collected by Mr. Justice Black in Speiser v. Randall, 357 U.S. 513, 530, 78 S.Ct. 1332, 1552, 2 L.Ed.2d 1460. And see, Ohio ex rel. Eaton v. Price, 364 U.S. 263, 274—276, 80 S.Ct. 1463, 1469—1470, 4 L.Ed.2d 1708.
1
It might, however, be said that there is such an implication in Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940), a capital case in which counsel had been appointed but in which the petitioner claimed a denial of 'effective' assistance. The Court in affirming noted that '(h)ad petitioner been denied any representation of counsel at all, such a clear violation of the Fourteenth Amendment's guarantee of assistance of counsel would have required reversal of his conviction.' Id., at 445, 60 S.Ct. at 322. No 'special circumstances' were recited by the Court, but in citing Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), as authority for its dictum it appears that the Court did not rely solely on the capital nature of the offense.
2
Portents of today's decision may be found as well in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), and Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961). In Griffin, a noncapital case, we held that the petitioner's constitutional rights were violated by the State's procedure, which provided free transcripts for indigent defendants only in capital cases. In Ferguson we struck down a state practice denying the appellant the effective assistance of counsel, cautioning that '(o)ur decision does not turn on the facts that the appellant was tried for a capital offense and was represented by employed counsel. The command of the Fourteenth Amendment also applies in the case of an accused tried for a noncapital offense, or represented by appointed counsel.' 365 U.S., at 596, 81 S.Ct., at 770.
3
See, e.g., Barzun, In Favor of Capital Punishment, 31 American Scholar 181, 188—189 (1962).
1
Avery v. Alabama, 308 U.S. 444, 445, 60 S.Ct. 321, 84 L.Ed. 377.
2
E.g., Bute v. Illinois, 333 U.S. 640, 674, 68 S.Ct. 763, 780, 92 L.Ed. 986; Uveges v. Pennsylvania, 335 U.S. 437, 441, 69 S.Ct. 184, 185, 93 L.Ed. 127.
3
E.g., Foster v. Illinois, 332 U.S. 134, 67 S.Ct. 1716, 91 L.Ed. 1955; Bute v. Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986; Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683.
4
E.g., Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Hudson v. North Carolina, 363 U.S. 697, 80 S.Ct. 1314, 4 L.Ed.2d 1500; Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442.
5
See, e.g., Commonwealth ex rel. Simon v. Maroney, 405 Pa. 562, 176 A.2d 94 (1961); Shaffer v. Warden, 211 Md. 635, 126 A.2d 573 (1956); Henderson v. Bannan, 256 F.2d 363 (C.A.6th Cir. 1958).
6
Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288.
| 01
|
372 U.S. 487
83 S.Ct. 774
9 L.Ed.2d 899
Robert DRAPER and Raymond Lorentzen, Petitioners,v.STATE OF WASHINGTON et al.
No. 201.
Argued Jan. 16, 1963.
Decided March 18, 1963.
Charles F. Luce, Portland, Or., for petitioners.
John J. Lally, Spokane, Wash., for respondents.
Mr. Justice GOLDBERG delivered the opinion of the Court.
1
Certiorari was granted in this case, 370 U.S. 935, 82 S.Ct. 1589, 8 L.Ed.2d 806, in order that the Court might consider whether the State of Washington's rules governing the provision of transcripts to indigent criminal defendants for purposes of appeal were applied in this case so as to deprive petitioners of rights guaranteed them by the Fourteenth Amendment.
2
This Court has dealt recently with the constitutional rights of indigents to free transcripts on appeal in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 and Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269. The principle of Griffin is that '(d)estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts,' 351 U.S., at 19, 76 S.Ct., at 591, a holding restated in Eskridge to be 'that a State denies a constitutional right guaranteed by the Fourteenth Amendment if it allows all convicted defendants to have appellate review except those who cannot afford to pay for the records of their trials,' 357 U.S., at 216, 78 S.Ct., at 1062. In Eskridge the question was the validity of Washington's long-standing procedure whereby an indigent defendant would receive a stenographic transcript at public expense only if, in the opinion of the trial judge, 'justice will thereby be promoted.' Id., at 215, 78 S.Ct., at 1062. This Court held per curiam that, given Washington's guarantee of the right to appeal to the accused in all criminal prosecutions, Wash.Const. Art. I, § 22 and Amend. 10, '(t)he conclusion of the trial judge that there was no reversible error in the trial cannot be an adequate substitute for the right to full appellate review available to all defendants in Washington who can afford the expense of a transcript,' id., at 216, 78 S.Ct., at 1062, and remanded the cause for further proceedings not inconsistent with the opinion. In response, in Woods v. Rhay, 54 Wash.2d 36, 338 P.2d 332 (1959), a case which was remanded by this Court for reconsideration in light of Eskridge two weeks after that case was decided, 357 U.S. 575, 78 S.Ct. 1387, 2 L.Ed.2d 1547, the Supreme Court of Washington formulated a new set of rules to govern trial judges in passing upon indigents' requests for free stenographic transcripts:
3
'1. An indigent defendant in his motion for a free statement of facts must set forth:
4
'a. The fact of his indigency
5
'b. The errors which he claims were committed; and if it is claimed that the evidence is insufficient to justify the verdict, he shall specify with particularity in what respect he believes the evidence is lacking. (The allegations of error need not be expressed in any technical form but must clearly indicate what is intended).
6
'2. If the state is of the opinion that the errors alleged can properly be presented on appeal without a transcript of all the testimony,
7
'a. it may make a showing of what portion of the transcript will be adequate, or
8
'b. if it believes that a narrative statement will be adequate, it must show that such a statement is or will be available to the defendant.
9
'3. The trial court in disposing of an indigent's motion for a statement of facts at county expense shall enter findings of fact upon the following matters:
10
'a. The defendant's indigency
11
'b. Which of the errors, if any, are frivolous and the reasons why they are frivolous
12
'c. Whether a narrative form of statement of facts will be adequate to present the claimed errors for review and will be available to the defendant; and, if not
13
'd. What portion of the stenographic transcript will be necessary to effectuate the indigent's appeal.
14
'4. The trial court's disposition of the motion shall be by definitive order.' 54 Wash.2d, at 44—45, 338 P.2d, at 337.
15
It is the application of these rules which is asserted by petitioners in the present case to be inconsistent with their constitutional rights as declared in the Griffin and Eskridge cases. Petitioners, who are concededly indigent, were each convicted of two counts of robbery by a jury and sentenced to two consecutive 20-year terms after a three-day trial ending on September 14, 1960, during which they were represented by court-appointed counsel. Their motions for new trials were denied. On October 20, acting pro se, they filed timely notices of appeal from the judgments of conviction, and then filed identical motions requesting the trial judge to order preparation of a free transcript of the record and statement of facts.1 Drawn inartistically, these requests asserted petitioners' indigency and then set forth 12 allegations of error in the trial, relating to admission of testimony and exhibits, perjured and self-contradictory testimony, prejudice of the trial judge in the conduct of the trial, failure to enforce the rule as to exclusion of witnesses, and failure of the evidence to establish the elements of the crime charged. Each concluded that '(u)nless Defendant is provided with a transcript and statement of facts at the county expense, he will be unable to prosecute this appeal.'
16
Petitioners' motions were heard on November 28 by the judge who had presided at the jury trial. Petitioners were present at the hearing, having been brought from the State Penitentiary where they were and still are incarcerated. Although they no longer wished the aid of counsel, the judge, in accordance with a statement in Woods v. Rhay,2 directed trial counsel to speak in petitioners' behalf. Counsel attempted, as best he could from his recollection of a trial which had occurred two and one-half months earlier, to elaborate upon the specifications of error in petitioners' motions. The objections to exhibits, he stated, related to a gun introduced against petitioner Draper, and a jacket, claimed to have been found with money in it, introduced as belonging to petitioner Lorentzen. Counsel explained at length that he regarded the foundation laid for introducing these items to have been extremely weak, and that receipt of the evidence on such a slim foundation was prejudicial. He suggested that petitioner Draper had been identified only by an alleged accomplice, Jennings, whose testimony was also contradictory and perjurious. Counsel also argued that the prosecution had failed to prove both the existence of the corporation which the indictment described as owning one of the robbed motels, and the possessory right of its agent to the money taken. 'In my opinion,' he said, 'those two omissions are very important, if not fatal in this case.' Further, counsel referred to petitioners' contention that two witnesses were improperly allowed to sit in the courtroom prior to testifying, and said that he had no personal knowledge of the facts supporting the contention but that since defendants had invoked the exclusion-of-witnesses rule at trial there was perhaps something to the contention. Finally, counsel argued that petitioners' contention that the evidence was insufficient to sustain the conviction was, under Woods v. Rhay and analogous decisions of this Court governing the rights of federal prisoners, enough in itself to entitle them to a transcript.
17
Since petitioners had not desired counsel's assistance, petitioner Draper was allowed to argue when counsel finished. He stated in a layman's way what he believed were the trial errors, but when interrogated by the trial judge for supporting details he asserted his inability to give any without a transcript.
18
The prosecutor opposed the motion both by affidavit and by argument at the hearing. His affidavit summarized in several paragraphs his contrary interpretation of the evidence, which according to him plainly established the defendants' guilt. In his argument he undertook to refute each of petitioners' assignments of error. He contended, therefore, that petitioners' motions for free transcripts and statements of facts should be denied because 'there is nothing here to support any substantial claim of error whatsoever.'
19
The trial judge, upon conclusion of the prosecutor's argument, reviewed petitioners' assignments of error and indicated orally that he would deny their motions. On December 12 he entered an order, coupled with formal findings of fact and conclusions of law, in which he concluded
20
'That the assignments of error as set out by each defendant are patently frivolous; that the guilt of each defendant as to each count of Robbery was established by overwhelming evidence, and that accordingly the furnishing of a statement of facts would result in a waste of public funds.'
21
His findings summarized in six paragraphs the facts which he thought had been proven at the three-day trial. This summary constituted only the trial judge's conclusions about the operative facts, without any description whatsoever of the evidence upon which those conclusions were based. After stating these factual conclusions, the judge specifically rejected each of petitioners' 12 assignments of error with a summary statement—almost wholly conclusory—concerning each.
22
Petitioners sought review by certiorari of the trial court's order in the Supreme Court of Washington. Department One of that court quashed the writ, holding that the trial court had properly applied the principles of Woods v. Rhay and had correctly found the appeal to be frivolous. 58 Wash.2d 830, 365 P.2d 31. By the very nature of the procedure, the Supreme Court's ruling was made without benefit of reference to any portion of a stenographic transcript of the jury trial. Solely on the basis of the stenographic record of the hearing on the motion, the Supreme Court stated that '(i)t would serve no useful purpose to set forth (the) evidence in detail,' 58 Wash.2d, at 832, 365 P.2d, at 33, and instead purported to summarize the operative facts briefly, based entirely and uncritically on the trial judge's conclusions as to what had occurred. These conclusory statements, arrived at without any examination of the underlying evidence, were then (inevitably, given the nature of the trial judge's conclusions) characterized as sufficient to show that all of the elements of the crime of robbery were established by the evidence.3 The court concluded by briefly dealing with and rejecting petitioners' specific assignments of error, just as the trial judge had done.
23
Petitioners contend that the present Washington procedure for indigent appeals has not cured the constitutional defects disapproved in Eskridge. They argue that a standard which conditions effective appeal on a trial judge's finding, even though it be one of nonfrivolity instead of promotion of justice, denies them adequate appellate review. Under the present standard, just as under the disapproved one, they must convince the trial judge that their contentions of error have merit before they can obtain the free transcript necessary to prosecute their appeal. Failing to convince the trial judge, they continue, they are denied adequate appellate review because the Supreme Court then passes upon their assignments of error without consideration of the record of the trial proceedings, whereas defendants with money to buy a transcript are allowed a direct appeal to the Supreme Court, which affords them full review of their contentions. The State argues that this difference in procedure is justifiable because it safeguards against frivolous appeals by indigents while guaranteeing them appellate review in cases where such review is even of potential utility.4
24
In considering whether petitioners here received an adequate appellate review, we reaffirm the principle, declared by the Court in Griffin, that a State need not purchase a stenographer's transcript in every case where a defendant cannot buy it. 351 U.S., at 20, 76 S.Ct., at 591. Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise. A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge's minutes taken during trial or on the court reporter's untranscribed notes, or a bystander's bill of exceptions might all be adequate substitutes, equally as good as a transcript. Moreover, part or all of the stenographic transcript in certain cases will not be germane to consideration of the appeal, and a State will not be required to expend its funds unnecessarily in such circumstances. If, for instance, the points urged relate only to the validity of the statute or the sufficiency of the indictment upon which conviction was predicated, the transcript is irrelevant and need not be provided. If the assignments of error go only to rulings on evidence or to its sufficiency, the transcript provided might well be limited to the portions relevant to such issues. Even as to this kind of issue, however, it is unnecessary to afford a record of the proceedings pertaining to an alleged failure of proof on a point which is irrelevant as a matter of law to the elements of the crime for which the defendant has been convicted.5 In the examples given, the fact that an appellant with funds may choose to waste his money by unnecessarily including in the record all of the transcript does not mean that the State must waste its funds by providing what is unnecessary for adequate appellate review. In all cases the duty of the State is to provide the indigent as adequate and effective an appellate review as that given appellants with funds—the State must provide the indigent defendant with means of presenting his contention to the appellate court which are as good as those available to a nonindigent defendant with similar contentions.
25
Petitioners' contentions in the present case were such that they could not be adequately considered by the State Supreme Court on the limited record before it. The arguments about improper foundation for introduction of the gun and coat, for example, could not be determined on their merits—as they would have been on a nonindigent's appeal—without recourse, at a minimum, to the portions of the record of the trial proceedings relating to this point.6 Again, the asserted failure of proof with respect to identification of the defendants and the allegations of perjury and inconsistent testimony were similarly impossible to pass upon without direct study of the relevant portions of the trial record. Finally, the alleged failure of the evidence to sustain the conviction could not be determined on the inadequate information before the Washington Supreme Court.
26
The materials before the State Supreme Court in this case did not constitute a 'record of sufficient completeness,' see Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917, 921, 8 L.Ed.2d 21, and p. 498, infra, for adequate consideration of the errors assigned. No relevant portions of the stenographic transcript were before it. The only available description of what occurred at the trial was the summary findings of the trial court and the counter-affidavit filed by the prosecutor. The former was not in any sense like a full narrative statement based upon the detailed minutes of a judge kept during trial. It was, so far as we know, premised upon recollections as of a time nearly three months after trial and, far from being a narrative or summary of the actual testimony at the trial, was merely a set of conclusions. The prosecutor's affidavit can by no stretch of the imagination be analogized to a bystander's bill of exceptions. The fact recitals in it were in most summary form, were prepared by an advocate seeking denial of a motion for free transcript, and were contested by petitioners and their counsel at the hearing on that motion.
27
By allowing the trial court to prevent petitioners from having stenographic support or its equivalent for presentation of each of their separate contentions to the appellate tribunal, the State of Washington has denied them the rights assured them by this Court's decisions in Griffin and Eskridge. The rules set out in Woods v. Rhay contemplate a procedure which could have been followed here to afford the petitioners what the Constitution requires. Thus, in accordance with those rules, the State could have endeavored to show that a narrative statement or only a portion of the transcript would be adequate and available for appellate consideration of petitioners' contentions. The trial judge would have complied with both the constitutional mandate and the rules in limiting the grant accordingly on the basis of such a showing by the State. What was impermissible was the total denial to petitioners of any means of getting adequate review on the merits in the State Supreme Court, when no such clog on the process of getting contentions before the State Supreme Court attends the appeals of defendants with money.
28
The Washington rules as applied here come to this: An indigent defendant wishing to appeal and needing a transcript to do so may only obtain it if the judge who has presided at his trial and has already overruled his motion for a new trial as well as his objections to evidence and to conduct of the trial finds that these contentions, upon which he has already ruled, are not frivolous. The predictable finding of frivolity is subject to review without any direct scrutiny of the relevant aspects of what actually occurred at the trial, but rather with examination only of what the parties argued at the hearing on the transcript motion and what the judge recalled and thereafter summarily found as to what went on at the trial.
29
This Court, in Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917, 921, 8 L.Ed.2d 21, dealt with similar vices in the federal courts by requiring that when a defendant denied leave to appeal in forma pauperis by the District Court applies to the Court of Appeals for leave to appeal, that court, when the substance of the applicant's claims cannot be adequately ascertained from the face of his application (as in the present case), must provide 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 * * * in forma pauperis should be allowed.' Here, similarly, the Washington Supreme Court could not deny petitioners' request for review of the denial of the transcript motion without first granting them a 'record of sufficient completeness' to permit proper consideration of their claims. Such a grant would have ensured petitioners a right to review of their convictions as adequate and effective as that which Washington guarantees to nonindigents. Moreover, since nothing we say today militates against a State's formulation and application of operatively nondiscriminatory rules to both indigents and nonindigents in order to guard against frivolous appeals, the affording of a 'record of sufficient completeness' to indigents would ensure that, if the appeals of both indigents and nonindigents are to be tested for frivolity, they will be tested on the same basis by the reviewing court. Compare Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060; Coppedge v. United States, supra, 369 U.S., at 447—448, 82 S.Ct., at 922.
30
In Eskridge this Court held that '(t)he conclusion of the trial judge that there was no reversible error in the trial cannot be an adequate substitute for the right to full appellate review available to all defendants in Washington who can afford the expense of a transcript.' 357 U.S., at 216, 78 S.Ct., at 1062. We hold today that the conclusion of the trial judge that an indigent's appeal is frivolous is a similarly inadequate substitute for the full appellate review available to nonindigents in Washington, when the effect of that finding is to prevent an appellate examination based upon a sufficiently complete record of the trial proceedings themselves.
31
The judgment of the Washington Supreme Court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
32
Reversed and remanded.
33
Mr. Justice WHITE, whom Mr. Justice CLARK, Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.
34
The Supreme Court of Washington in this case determined that the issues raised by petitioners in that court were without merit and frivolous. In my judgment petitioners were afforded an adequate appellate review upon a satisfactory record. Consequently, with all due deference, I dissent.
I.
35
The Court, as it should, Griffin v. Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 591, 100 L.Ed. 891; Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214, 216, 78 S.Ct. 1061, 1062, 2 L.Ed.2d 1269; cf. Johnson v. United States, 352 U.S. 565; Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917, 921, 8 L.Ed.2d 21, carefully avoids requiring the State to supply an indigent with a stenographic transcript of proceedings in every case. It would permit the State to furnish an adequate record substantially equivalent to the transcript which could be purchased by an appellant with resources and would accept a narrative statement based upon the judge's notes or a bystander's bill of exceptions. By any of these standards articulated by the Court, however, I am quite unable to fathom why and in what respects the record placed before the Washington Supreme Court was not wholly satisfactory, just as the Washington Supreme Court determined that it was.
36
Following petitioners' conviction and the denial of the motion for a new trial, petitioners filed a motion before the trial court setting forth their claimed errors and requesting a transcript for purposes of appeal. The State, opposing the request for a transcript, responded by presenting the evidence at the trial in a narrative form by affidavit of the prosecuting attorney. A hearing was held at which both the attorney who represented the petitioners at the trial and the petitioners themselves were free to challenge the accuracy of the State's narrative of the facts or to supplement it in any way The statements and arguments of petitioners and their attorney at the hearing were included in the material before the Supreme Court and added considerably to the State's summary, as did the court's oral opinion and the colloquies between the court and petitioner Draper. Finally, the court, as it was required to do, entered findings of fact setting forth the evidence at the trial and ruling upon each error claimed by petitioners. The findings, as well as the court's statements during the conduct of the hearing, went substantially beyond the summary presented by the State and were expressly intended by the trial judge to set forth the 'substance of the testimony' so that the matters relied upon by petitioners could be presented to the Washington Supreme Court.
37
We thus have a situation where the court, in good faith, utilizing its own knowledge and information about the trial and with the help of the State, the defendants and their counsel, in effect prepared and settled a narrative statement of the evidence for the use of the appellate court in passing upon the merits of the alleged errors. The record before the Washington Supreme Court contained not only the findings made by the trial judge after a hearing, but also everything said at the hearing by the defendants, by their attorney and by the prosecutor. Furthermore, briefs were filed in the Supreme Court of Washington and the court heard oral argument by appointed counsel.
38
If the Court would accept a narrative statement based upon the judge's notes, I am at a loss to understand why the above procedure does not satisfy the Court's own requirements, particularly when throughout this entire proceeding neither the petitioners nor their attorney challenged the accuracy of any statement in the summary prepared by the trial court and when every opportunity was given them to add to this record. While claiming generally that a transcript was required and in effect insisting that the jury should not have believed the evidence, not once did the petitioners or their attorney in the trial court or in this Court indicate in what particulars the record made by the judge with the participation of the parties was inaccurate or inadequate for the purposes of appeal.
39
The Court also says that a bystander's bill of exceptions would suffice. But a bystander's bill is nothing more than a bill of exceptions prepared by the party appealing and certified by a bystander where the judge refuses or is unable so to certify. See, e.g., Cartwright v. Barnett, 192 Ark. 206, 90 S.W.2d 485; McKee v. Elwell, 67 Colo. 149, 186 P. 714. And, as said by a unanimous Court:
40
'Historically a bill of exceptions does not embody a verbatim transcript of the evidence but, on the contrary, a statement with respect to the evidence adequate to present the contentions made in the appellate court. Such a bill may be prepared from notes kept by counsel, from the judge's notes, from the recollection of witnesses as to what occurred at the trial, and, in short, from any and all sources which will contribute to a veracious account of the trial judge's action and the basis on which his ruling was invoked.' Miller v. United States, 317 U.S. 192, 198, 63 S.Ct. 187, 190, 87 L.Ed. 179.
41
Furthermore, in the Miller case the Court expressly observed that '(c)ounsel (for petitioners) could, therefore, have prepared and presented to the trial judge, as was his duty, a bill of exceptions so prepared, and it would then have become the duty of the trial judge to approve it, if accurate, or, if not, to assist in making it accurately reflect the trial proceedings.' Id., at 199, 63 S.Ct. at 191 (emphasis supplied). The State of Washington here did not leave it solely to the defendant or his counsel to prepare the appellate record in the first instance. Upon motion by the defendants, the court proceeded, giving every opportunity to the parties to participate, to prepare a 'statement with respect to the evidence adequate to present the contentions made in the appellate court.' Id., at 198, 63 S.Ct. at 190.
42
Under any standard enunciated by this Court, then, the materials before the Supreme Court afforded ample basis for passing upon petitioners' claims. The conclusion of the Supreme Court of Washington, likewise, was that the record before it was adequate for review. Its judgment was that the appeal was frivolous and that no stenographic transcript was required to dispose of it. I think the court was correct—as an examination of the alleged errors in the light of the record supplied will demonstrate.
II.
43
The errors alleged by petitioners were as follows:
44
'(1) Testimony of witnesses contradict each other on the identification of the defendants.
45
'(2) Identification of clothes and weapons in error, no continuency of possession shown, nor ownership established, nor was ownership of these articles by the Defendants proven.
46
'(3) Testimony of many witnesses in direct conflict with each other and at times contradict each other, as to what happened and how it happened and by whom it was done.
47
'(4) That one witness perjured himself repeatedly and that his testimony was not stricken or thrown out.
48
'(5) That the presumption of innocence was never afforded the Defendants.
49
'(6) That the trial Judge was prejudiced against the Defendants throughout the entire trial.
50
'(7) That the trial Judge should have dismissed the case as the Defendants are not guilty as charged.
51
'(8) That exhibits were entered over objections that should not have been allowed to be entered.
52
'(9) That testimony was allowed over objections that should not have been allowed.
53
'(10) That Defendant was charged with robbing two specific companies that in fact were never proven to have been robbed.
54
'(11) That the Defendant was forced to sit at the same table with the two prosecutors and a policeman that was subpoenaed as a witness.
55
'(12) That after an order excluding witnesses from the courtroom the two main witnesses sat in the courtroom prior to testifying which had a substantial bearing on their testimony.
56
'(13) Unless Defendant is provided with a transcript and statement of facts at the county expense, he will be unable to prosecute this appeal.'
57
The Court places special emphasis on points 1, 2, 3, 4 and 7 as requiring considerably more than the Washington Supreme Court had before it if a constitutionally adequate review was to be afforded the petitioners.
58
However, point 1 merely asserts contradictions in the testimony about the identification of the petitioners. Inconsistency in the evidence is no stranger to criminal trials and it is the task of the jury to sort out the testimony and determine the facts and the guilt or innocence of the defendants. A conflict of testimony 'presents but a mere question of fact, upon which the verdict of the jury is conclusive. It is enough to sustain the verdict that there was positive, direct testimony to the existence of the facts as found.' Corinne Mill, Canal & Stock Co. v. Toponce, 152 U.S. 405, 408, 14 S.Ct. 632, 633, 38 L.Ed. 493. See generally Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720. Accordingly, if a complete transcript of the trial had been placed before the Washington Supreme Court, the bare fact of inconsistency between witnesses would be quite beside the point. The governing question would be whether there was adequate evidence to support the jury's conclusion that the petitioners had indeed been identified and were guilty as charged. Here the record supplied shows that the accomplice Jennings identified the petitioners and this was even confirmed by his mother. Thus neither point 1 nor point 3 would raise any problem for an appellate review of the finding of guilt by the jury.
59
Point 2 questions the admissibility of a gun and a jacket because of insufficient identification. But as petitioners' own attorney pointed out, the gun was identified by the accomplice Jennings, and petitioner Lorentzen's jacket was found in the get-away car which belonged to Lorentzen and was identified as looking like the one which Lorentzen wore during the commission of the crimes. The trial court ruled that the items had been adequately identified and were admissible under Washington law and that the objections of the defendants, as to the positiveness of the identification, went to the weight, rather than to the admissibility of the evidence. The Supreme Court of Washington agreed. I doubt seriously the propriety and wisdom of questioning the judgment of the Washington Supreme Court as to what evidence is necessary to support the admissibility of an exhibit under Washington law.
60
The Court apparently makes much of point 4, a general allegation of perjury, as not being intelligently reviewable upon the record made. This appears wholly untenable in the circumstances of this case. Here the trial was over, the evidence was concluded and the record closed. The jury had heard any attack the petitioners had to offer upon the credibility of the State's witnesses and had weighed the evidence and convicted the petitioners. A motion for a new trial had been denied. On the record made at the trial it was the jury's task to determine whether any witness was telling the truth and to accept or discard his testimony. The petitioners raised no issue of perjury at the trial or in their motion for a new trial. In these circumstances, it would take evidence outside the normal reporter's transcript to prove perjury, evidence which the trial court found they did not have, see United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562 and evidence which could not be presented for the first time on direct appeal upon the record of a trial already made. '(N)ew 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.' Mesarosh v. United States, 352 U.S. 1, 9, 77 S.Ct. 1, 5, 1 L.Ed.2d 1; State v. Brooks, 89 Wash. 427, 154 P. 795. A reporter's transcript might help petitioners prove that perjury had been committed at their trial but such proof would have to be made, if at all, not on direct appeal, but in some other proceeding.
61
Point 4 also shares the difficulties inherent in points 3, 8 and 9, all of which are blanket allegations lacking any specificity. It would seem that in order to make these general assertions at all, it was necessary for petitioners to have at least some specific instances in mind, but neither the petitioners nor their attorney in any way (except as point 2 illuminates point 8) brought to the court's attention any particular instances of the kind generally alleged in these points. These contentions placed nothing before the appellate court for review, see, e.g., Seaboard Air Line R. Co. v. Watson, 287 U.S. 86, 53 S.Ct. 32, 77 L.Ed. 180; Erdmann v. Henderson, 50 Wash.2d 296, 311 P.2d 423; Nordlund v. Pearson, 91 Wash. 358, 157 P. 875, and if they are not to be disregarded the net effect would be to require a complete transcript in every case, contrary to the Court's own standards and contrary to the rules of Woods v. Rhay, 54 Wash.2d 36, 338 P.2d 332, which the Court in general approves.
62
As for point 7, which essentially challenges the sufficiency of the evidence to support a conviction, the trial court found the evidence overwhelming and the Washington Supreme Court considered the evidence in the record placed before it as wholly adequate. The findings of the trial court are attached as an Appendix, p. 509, and it is incredible to me that the Court would hold this statement of the evidence at the trial to be an insufficient record upon which to affirm a jury's conclusion that the petitioners were guilty of robbing two motels.
63
The Washington Supreme Court determined as a matter of law that point 10 was without merit since to prove the crime in this case it was unnecessary to prove the existence of the corporation and the ownership of the money. See note 5 of the Court's opinion, p. 496. Similarly, point 6 was untenable since the only ground for the assertion of prejudice was that the trial judge made rulings adverse to them at the trial and since the challenge for prejudice was neither within the time nor in the form required by Washington law. As to point 5, the trial court found that the jury was specifically instructed in two different instructions as to the presumption of innocence and the burden of proof, the jury also being further reminded by counsel of the presumption of innocence in the selection of the jury. The Supreme Court of Washington held that this was enough under Washington law.
64
It is also readily apparent that the transcript demanded by petitioners would be of no aid at all in disposing of points 11 and 12, since a transcript would not show who was or was not in the courtroom or what prejudice, if any, was suffered by the defendants by being seated at the same table with the prosecutor, which physical arrangement is normal in the trial court which tried petitioners.
65
Finally, it was found by the trial court that points 1, 3, 4, 5, 6, 11 and 12 were never presented to the trial court at any stage of the trial or judgment and sentence in any form or fashion and, therefore, as the Supreme Court of Washington ruled 'even if these assignments were meritorious, our rules would preclude a consideration of them.'
66
I think the record was adequate in this case. If it could have been better, it should not pass without comment that it is normally the lot of the appellant to take the initiative in preparing and presenting a record for appeal. If petitioners' counsel could have been a more help in preparing this record—and this does not appear to have been true here—the petitioners themselves must shoulder the blame, since they repeatedly stated that they did not want the help of appointed counsel, giving no reason whatsoever other than that they desired to represent themselves. Petitioners were notified prior to the hearing on their motion for a transcript that trial counsel was available. Their immediate response to the judge was that they did not desire counsel's help and that they would represent themselves. Petitioner Draper repeated these assertions at the hearing. While the court gave Draper every opportunity to represent himself and the other petitioners in connection with making this record, he also required petitioners' trial counsel to be present to support the petitioners' position. This counsel did and it appears that both at the hearing and upon appeal where he orally argued, he placed his resources and abilities at the disposal of petitioners.
III.
67
I am satisfied therefore that there has been no constitutional infirmity in the review afforded these petitioners by the State of Washington. The contrary ruling of the Court severely limits the power of the States to avoid undue expense in dealing with criminal appeals. It places their appellate process in an inflexible procedural straitjacket. No greater harm could befall the principles of the Griffin and Eskridge cases than to require their indiscriminate application to situations where they are inapposite. The principles of these cases will not be served by an inquisitorial approach in this Court to their administration by state courts. To me the case before us amply demonstrates that the Washington courts have been faithful to the mandate of Griffin and Eskridge and I would affirm.
68
APPENDIX TO OPINION OF MR. JUSTICE WHITE.
69
In the Superior Court of the State of Washington in and for the County of Spokane
No. 16603
STATE OF WASHINGTON, PLAINTIFF
70
v.
71
RAYMOND L. LORENTZEN, ROBERT DRAPER AND JAMES D. LONG, DEFENDANTS
Findings of fact and conclusions of law
December 12, 1960
72
The above entitled cause came regularly on for hearing on the 28th day of November, 1960, on the motion of each defendant in forma pauperis for a free transcript and statement of facts, each defendant being personally present in Court and Thomas F. Lynch appearing as Court appointed counsel for each defendant, and Frank H. Johnson, Deputy Prosecuting Attorney appearing as counsel for the plaintiff, and the Court having examined the files and affidavits and having heard and argument of counsel and the individual argument of the defendant, Robert A. Draper, the Court being fully advised in the premises, now, makes findings of fact as follows:
FINDINGS OF FACT
73
* That each defendant was jointly charged by information filed in the Superior Court of Spokane County, with two counts of Robbery and said defendants were jointly tried before jury in the above entitled Court on September 12th, 13th and 14th, 1960.
II
74
That on September 14, 1960, the jury rendered verdicts of guilty as to each defendant on both counts of the information; that each of said defendants were thereafter on September 30, 1960, sentenced to serve not more than 20 years in the Washington State Penitentiary on each count, said sentences to run consecutively.
III
75
That the evidence established that the TraveLodge Motel is owned and operated as a motel business in Spokane, Washington, by a partnership consisting of H. E. Swanson, Dr. C. M. Anderson, and the TraveLodge Corporation, Inc., a corporation, who do business as a co-partnership under the name of the TravelLodge Motel; that at approximately 1:50 a.m., of July 5, 1960, Robert Deurbrouck was the employee of the TraveLodge Motel and the night clerk in charge of the property and business of the TraveLodge Motel; that at that time and place the defendants, Raymond Lorentzen and James D. Long, entered the TraveLodge Motel each armed with a loaded gun and at gunpoint took from Robert Deurbrouck the approximate sum of $500.00 in lawful money of the United States which was the property of and belonged to the TraveLodge Motel; that the defendant, James D. Long, then struck Robert Deurbrouck on the back of the head with the gun held by the said James D. Long, and inflicted upon the said Robert Deurbrouck, a scalp wound which required four stitches to close.
IV
76
That the defendants, Raymond Lorentzen and James D. Long, then ran to an automobile waiting outside the TraveLodge Motel in which by prearrangement, the defendant, Robert Draper, was driving said automobile, which belonged to the defendant, Raymond Lorentzen, and in which the accomplice Robert Jennings, also waited; that the defendant Robert Draper by prearrangement then drove said automobile to the Down Towner Motel which is a corporation engaged in the motel business; that the defendant James Long and the accomplice Robert Jennings, then entered the DownTowner Motel each armed with a loaded gun and the accomplice held up the night clerk and employee of the DownTowner Motel, one Barry Roff, who was then in charge of, the business and property of the DownTowner Motel and took by force and violence, the approximate sum of $1800.00 in lawful money of the United States, the property of the DownTowner Motel, Inc., a corporation; that the accomplice, Robert Jennings, then struck the said Barry Roff over the back of the head with the gun held and used by the said Robert Jennings; that the defendant, James Long, and the said accomplice, Robert Jennings thereupon ran to the waiting automobile which the defendant Robert Draper was driving, and in which the defendant Raymond Lorentzen was waiting.
V
77
That as Raymond Lorentzen and Robert Jennings ran from the DownTowner Motel to the aforementioned waiting automobile, they were observed by police officer Donald Rafferty, who was on duty as a police officer in the downtown area of Spokane at that time; that officer Rafferty then followed said defendants for a few blocks until he was advised by the police radio on his vehicle, of the above described robbery of the DownTowner Motel; that he thereupon attempted to stop the vehicle in which the above three defendants and the accomplice Robert Jennings were riding, but the defendant, Robert Draper, accelerated his vehicle and attempted to flee; that officer Rafferty then gave chase to this vehicle through downtown streets of Spokane at speeds up to 60 miles per hour and was joined in this pursuit by another police car driven by officer Robert Bailor; that in the course of this pursuit, the defendants fired an unknown number of shots at the pursuing police vehicles; that at the intersection of Third and Wall Streets in Spokane, the vehicle occupied by the defendants was rammed from behind by the police car driven by officer Bailor which caused the defendants' vehicle to go out of control and stop in a parking lot on the northeast corner of Third and Wall Streets in Spokane.
VI
78
That the defendants, James Long and Raymond Lorentzen, were each apprehended in this vehicle with the proceeds of the aforementioned robberies including envelopes, receipts, and papers identified as belonging to and coming from the said motels recovered in said vehicle. The defendant James D. Long immediately thereafter admitted his participation in the above described robberies.
VII
79
That the defendant, Robert Draper, and the accomplice, Robert Jennings, fled from said vehicle and returned to the Davenport Hotel in Spokane, Washington, in which Robert Draper had rented a room under the name 'J. Radde;' that at approximately noon of July 5, 1960, the defendant, Robert Draper, left the Davenport Hotel and flew to Seattle on a Northwest Air Lines, commercial plane, where he was apprehended several days later with the passenger's flight coupon still in his possession; that said passenger's flight coupon is in evidence as exhibit 26 and 26a, and that the Davenport Hotel registration of the defendants, Raymond Lorentzen, James Long, and Robert Draper, the latter using the name of 'J. Radde,' is in evidence as exhibits 23, 24 and 25.
VIII
80
That the accomplice, Robert Jennings, entered a plea of guilty to the aforementioned two counts of Robbery in the Superior Court of Spokane County, on July 19, 1960, and was sentenced by the Honorable Louis F. Bunge, Judge of the above entitled Court, to not more than 20 years confinement in the Washington State Penitentiary on each count, said sentence to run consecutively; that the said Robert Jennings testified as a witness for the State at the trial of the three co-defendants, and testified that the three defendants had driven to Robert Jennings' home near Addy, Washington, approximately 60 miles north of Spokane, in the later afternoon of July 4, 1960, and that the defendants persuaded him to return to Spokane with said defendants; that said testimony was confirmed by testimony of Mrs. Gladys Allen, the mother of the said Robert Jennings; that said Robert Jennings further testified that the robberies of the TravelLodge Motel and the DownTowner Motel were jointly planned by the three defendants and himself in the Davenport Hotel room occupied by the defendant, Robert Draper, approximately several hours before the robberies; that the four men then travelled the route later taken in the actual robberies for the purpose of planning and timing said robberies.
IX
81
That when the State rested its case in chief, the defendants rested their case without taking the witness stand or offering any evidence.
X
82
That the motions of each defendant for free transcript and statement of fact are identical in substance and the Court finds each assignment of error by each defendant without merit as follows:
83
'A. That, as to assignments of error one and three, no showing whatever has been made of any conflict or contradiction in the testimony of any witness and the Court finds that no such material conflict or contradiction was present in the trial.
84
'B. As to assignments of error two and eight, relating to identification and admission of exhibits, each exhibit was properly identified at the trial and was material and relevant to the issues and that the objection to exhibit two, the gun identified by the accomplice Robert Jennings, as one used in the holdup, as well as the objections to remaining exhibits offered, goes to the weight the jury should place upon the exhibits rather than their admissibility.
85
'C. As to assignment of error number four, no showing of any perjury has been made beyond the bare assertion by the defendants of perjury, and the Court finds there is no basis in fact that has been presented to establish such claim.
86
'D. As to assignment of error five, the Court finds that the jury was specifically instructed in instructions number two and four, as to the presumption of innocence and the burden of proof, and the jury was further reminded by counsel in the selection of the jury of said matters.
87
'E. As to assignment of error number six, no showing whatever has been made of any prejudice against the defendants, and no such prejudice existed.
88
'F. As to assignment of error number seven, the Court finds the evidence offered by the State against these defendants overwhelming as to their guilt of the crimes charged.
89
'G. As to assignment of error number nine, no showing has been made by these defendants as to any testimony that was improperly admitted, and the Court finds that no such testimony was admitted.
90
'H. As to assignment of error number ten, the Court finds that the uncontradicted evidence of the State has established the legal nature of each motel business and the ownership of the property that was taken in the robberies, by the employees of said business, and one of the owners, and co-partners of the TraveLodge Motel, Mr. H. E. Swanson.
91
'I. As to assignment of error number eleven; that all counsel and defendants at this trial participated therein from one counsel table adequate to provide all parties with necessary working room, and that no conceivable prejudices resulted to these defendants from such fact, and that no demonstration by any participant in the trial was evident to the Court or ever brought to the attention of the Court during any time of the trial.
92
'J. As to assignment of error number twelve, the Court finds that its attention was never called to the presence of any witnesses in the courtroom after the rule of exclusion had been invoked, and to the Court's knowledge, no such witnesses were present in Court except when they testified and that, if such presence were established, no showing of prejudice to the defendants has been made.'
XI
93
The Court further finds that assignments of error, one, three, four, five, six, eleven and twelve were never presented to the Court at any stage of the trial or judgment and sentence in any form or fashion.
94
From the foregoing Findings of Fact, the Court makes the following
CONCLUSIONS OF LAW
95
* That the claims of error of each defendant are frivolous, groundless and without any basis in fact or law.
II
96
That the defendants do not allege or substantiate any factual basis for their assignments of error beyond the bare assertion of such claims.
III
97
That the assignments of error as set out by each defendant are patently frivolous; that the guilt of each defendant as to each count of Robbery was established by overwhelming evidence, and that accordingly the furnishing of a statement of facts would result in a waste of public funds.
98
Done in open court this 12th day of December, 1960.
99
HUGH H. EVANS,
100
Judge.
1
Washington practice refers to copies of the various documents filed with the clerk of the trial court as the 'transcript of the record,' Rule 44 of the Rules on Appeal, and to the court reporter's transcription of trial proceedings as the 'statement of facts,' Rule 35 of the Rules on Appeal. In accordance with common usage, the latter will often be referred to herein as the 'transcript' and the 'stenographic transcript.'
2
'Where court-appointed counsel has represented the defendant at the trial, his services should be made available to the defendant for the purpose of presenting the motion.' 54 Wash.2d, at 44, n. 3, 338 P.2d, at 337, n. 2.
3
The State Supreme Court twice declared that the defendants had not challenged the trial court's recollection of the evidence, apparently implying that defendants had abandoned any claims resting on insufficiency of or inconsistencies in the evidence. However, the record, including the briefs filed in the State Supreme Court, does not support this conclusion. Petitioners' pro se brief in the State Supreme Court, such as it was, was based on the broad proposition that under Griffin and Eskridge they were entitled to a transcript in order to appeal, a pointless contention if by so stating the argument they meant to waive the right to have the State Supreme Court consider some or possibly all of the underlying allegations of error. Their vigorous arguments at the hearing on the transcript motion were meaningless if they were willing to accept the prosecution's version of the facts. It should be noted, however, that the State Supreme Court did, notwithstanding its comments, consider petitioners' assignments of error.
4
The State also argues that in practical effect there is no difference at all between the rights it affords indigents and nonindigents, because a moneyed defendant, motivated by a 'sense of thrift,' will choose not to appeal in exactly the same circumstances that an indigent will be denied a transcript. We reject this contention as untenable. It defies common sense to think that a moneyed defendant faced with long-term imprisonment and advised by counsel that he has substantial grounds for appeal, as petitioners were here, will choose not to appeal merely to save the cost of a transcript. The State's procedure for indigents, therefore, cannot be justified as an attempt to equalize the incidence of appeal as between indigents and nonindigents.
5
For example, the State Supreme Court here held that, under Washington law, proof of the existence of the corporation robbed is unnecessary to a conviction for robbery, thus obviating the need for a record of the testimony relevant to this point.
6
The Washington courts stated that the asserted lack of foundation went to the weight of the evidence and not to its admissibility. This conclusion, however, in contrast to the holding that the existence of the robbed corporation was irrelevant as a matter of law, necessarily depended upon an examination—never made—of the appropriate portions of the record to test whether the evidence claimed to establish the foundation was in fact sufficient to meet the threshold standard of admissibility.
| 12
|
372 U.S. 477
83 S.Ct. 768
9 L.Ed.2d 892
Ward LANE, Warden, Petitioner,v.George Robert BROWN.
No. 283.
Argued Jan. 16 and 17, 1963.
Decided March 18, 1963.
William D. Ruckelshaus, Indianapolis, Ind., for petitioner, pro hac vice, by special leave of Court.
Nathan Levy, South Bend, Ind., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The respondent, George Robert Brown, is in an Indiana prison under sentence of death. He is an indigent. In a federal habeas corpus proceeding the District Court held that Indiana has deprived Brown of a right secured by the Fourteenth Amendment by refusing him appellate review of the denial of a writ of error coram nobis solely because of his poverty. 196 F.Supp. 484. The Court of Appeals affirmed. 302 F.2d 537. We agree that the Indiana procedure at issue in this case falls short of the requirements of the Fourteenth Amendment of the United States Constitution.
2
In the administration of its criminal law, Indiana seems to have long pursued a conspicuously enlightened policy in the quest for equal justice to the destitute, and it is not without irony that the constitutional problem in this case stems from legislation evidently enacted to enlarge that State's existing system of aid to the indigent. For more than a hundred years the Indiana Constitution has guaranteed the assistance of counsel to every defendant in a criminal trial.1 This right has been extended to include the right of an indigent to consult with a lawyer prior to arraignment,2 as well as the right to be represented by counsel on appeal from a criminal conviction.3 It has also been established for more than a century in Indiana that a poor person appealing a criminal conviction may secure a transcript of the trial record without cost.4 In 1945 the Indiana Legislature enacted the so-called Public Defender Act, a law to deal with the problem of providing legal assistance to indigent prisoners in postconviction proceedings. It is the operation of the provisions of this law, as interpreted by the Supreme Court of Indiana, which we find constitutionally deficient in the present case.
3
The 1945 legislation created the office of Public Defender, to be appointed by the State Supreme Court,5 and, as later amended, authorized him to employ 'such deputies, stenographers or other clerical help as may be required to discharge his duties * * *.'6 The provisions of the law which are at the root of the problem in the case before us are those which define the Public Defender's basic duties and which authorize him to order hearing transcripts, or their equivalent, at public expense:
4
'It shall be the duty of the public defender to represent any person in any penal institution of this state who is without sufficient property or funds to employ his own counsel, in any matter in which such person may assert he is unlawfully or illegally imprisoned, after his time for appeal shall have expired.'7
5
'The public defender may order on behalf of any prisoner he represents a transcript of any court proceeding, including evidence presented, had against any prisoner, and depositions, if necessary, at the expense of the state, but the public defender shall have authority to stipulate facts contained in the record of any court, or the substance of testimony presented or evidence heard involving any issue to be presented on behalf of any prisoner, without the same being fully transcribed.'8
6
The rules of the Indiana Supreme Court expressly permit an appeal from the denial of a writ of error coram nobis, but also require that a transcript be filed in order to confer jurisdiction upon the court to hear such an appeal.9 The Indiana court has held that under the above-quoted provisions of the Public Defender Act, only the Public Defender can procure a transcript of a coram nobis hearing for an indigent; an indigent cannot procure a transcript for himself and appeal pro se, nor can he secure the appointment of another lawyer to get the transcript and prosecute the appeal. State ex rel. Casey v. Murray, 231 Ind. 74, 106 N.E.2d 911; Jackson v. Reeves, 238 Ind. 708, 153 N.E.2d 604; Willoughby v. State, Ind., 177 N.E.2d 465. The upshot is that a person with sufficient funds can appeal as of right to the Supreme Court of Indiana from the denial of a writ of error coram nobis, but an indigent can, at the will of the Public Defender, be entirely cut off from any appeal at all.
7
The impact of this system is fully illustrated by the history of the present case. Brown was convicted of murder in an Indiana trial court and sentenced to death. The conviction was affirmed on appeal, Brown v. State, 239 Ind. 184, 154 N.E.2d 720, and this Court denied a petition for a writ of certiorari. 361 U.S. 936, 80 S.Ct. 375, 4 L.Ed.2d 360. Thereafter, Brown filed in the Federal District Court an application for habeas corpus which was dismissed because of failure to exhaust available state remedies. Brown then filed a petition for a writ of error coram nobis in the state trial court. After a hearing at which Brown was represented by the Public Defender, the court denied relief. Brown requested the Public Defender to represent him in perfecting an appeal to the Indiana Supreme Court. This request was refused because of the Public Defender's stated belief that an appeal would be unsuccessful.10 Brown next applied to the state trial court for a transcript of the coram nobis hearing and the appointment of counsel to perfect an appeal. This application was denied. The Supreme Court of Indiana refused to order the trial court to grant the petitioner's request for a transcript and appointment of counsel, stating:
8
'Under the circumstances presented, the public defender was under no duty to request a transcript of the proceedings in error coram nobis and, in the absence of a request from said office, the trial court was under no duty to provide a certified copy of said proceedings at public expense.' Brown v. Indiana, 241 Ind. 298, 302, 171 N.E.2d 825, 827.
9
Brown again sought a writ of certiorari in this Court, and his petition was again denied, 'without prejudice to an application for a writ of habeas corpus in the appropriate United States District Court * * *.' 366 U.S. 954, 81 S.Ct. 1906, 6 L.Ed.2d 1246.
10
Brown finally instituted in the Federal District Court the habeas corpus proceedings we now review. His petition alleged, in addition to four substantive grounds for relief,11 'That Relator has been denied equal protection of the law in that he was effectively denied an appeal from the Order of the Lake County, Indiana Criminal Court, denying his petition for writ of error coram nobis because of his poverty and inability to secure a transcript, which right of appeal is available to all defendants in Indiana who can afford the expense of a transcript.' The court, directing its attention only to this last issue, held 'that the actions of the State of Indiana have denied petitioner equal protection of the laws,' and ordered that Brown 'be given a full, appellate review of his Coram Nobis denial' within 90 days or such additional time as the court might thereafter determine. 196 F.Supp., at 488. Upon the failure of Indiana to provide such a review, the District Court ordered Brown's discharge from custody, but granted a stay pending appellate review. The Court of Appeals affirmed the District Court's judgment, directing, however, that Brown continue to be held in custody pending final disposition of the case by this Court. 302 F.2d at 540.
11
Both the District Court and the Court of Appeals were of the opinion that the issue in the present case is controlled by recent decisions of this Court which have held constitutionally invalid procedures of other States found substantially to deny indigent defendants the benefits of an existing system of appellate review. We are in complete agreement.
12
In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, the Court held that a State with an appellate system which made available trial transcripts to those who could afford them was constitutionally required to provide 'means of affording adequate and effective appellate review to indigent defendants.' Id., at 20, 76 S.Ct. 591. 'Destitute defendants,' the Court held, 'must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.' Id., at 19, 76 S.Ct. 591. In Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209, involving a $20 fee for filing a motion for leave to appeal a felony conviction to the Supreme Court of Ohio, this Court reaffirmed the Griffin doctrine, saying that 'once the State chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty. * * * This principle is no less applicable where the State has afforded an indigent defendant access to the first phase of its appellate procedure but has effectively foreclosed access to the second phase of that procedure solely because of his indigency.' Id., at 257, 79 S.Ct. 1168. In Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39, the Court made clear that these principles were not to be limited to direct appeals from criminal convictions, but extended alike to state postconviction proceedings. 'Respecting the State's grant of a right to test their detention,' the Court said, 'the Fourteenth Amendment weighs the interests of rich and poor criminals in equal scale, and its hand extends as far to each.' Id., at 714, 81 S.Ct. 898. In Eskridge v. Washington Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269, the Court held invalid a provision of Washington's criminal appellate system which conferred upon the trial judge the power to withhold a trial transcript from an indigent upon the finding that 'justice would not be promoted * * * in that defendant has been accorded a fair and impartial trial, and in the Court's opinion no grave or prejudicial errors occurred therein.' Id., at 215, 78 S.Ct. 1062. There it was said that '(t)he conclusion of the trial judge that there was no reversible error in the trial cannot be an adequate substitute for the right to full appellate review available to all defendants in Washington who can afford the expense of a transcript.' Id., at 216, 78 S.Ct. 1062.
13
The present case falls clearly within the area staked out by the Court's decisions in Griffin, Burns, Smith, and Eskridge. To be sure, this case does not involve, as did Griffin, a direct appeal from a criminal conviction, but Smith makes clear that the Griffin principle also applies to state collateral proceedings, and Burns leaves no doubt that the principle applies even though the State has already provided one review on the merits.
14
In Eskridge the Court held constitutionally invalid a provision which permitted a trial judge to prevent an indigent from taking an effective appeal. The provision before us confers upon a state officer outside the judicial system power to take from an indigent all hope of any appeal at all. Such a procedure, based on indigency alone, does not meet constitutional standards.12 We have no doubt that Indiana, with its historic concern for equal justice under law, will find no practical difficulty in correcting the constitutional deficiency which this case exposes.
15
The judgments of the Court of Appeals and of the District Court are vacated and the case remanded to the latter, so that appropriate orders may be entered ordering Brown's discharge from custody, unless within a reasonable time the State of Indiana provides him an appeal on the merits to the Supreme Court of Indiana from the denial of the writ of error coram nobis.
16
It is so ordered.
17
Separate opinion of Mr. Justice HARLAN, in which Mr. Justice CLARK concurs.
18
I think it falls short of the requirements of due process for a State to foreclose an indigent from appealing in a case such as this at the unreviewable discretion of a Public Defender by whom, or by whose office, the indigent has been represented at the trial. It ignores the human equation not to recognize the possibility that a Public Defender, so circumstanced may decide not to appeal questions which a lawyer who has had no previous connection with the case might consider worthy of appellate review. (I do not of course remotely intimate that such is the situation here.)
19
Were it clear that the decision of this Public Defender not to appeal had been subject to judicial review at the instance of the prisoner, I should have voted to sustain this conviction. However, the State Attorney General has candidly informed us that the Indiana law is unclear on this score.
20
Accordingly, while agreeing with the Court's action in remanding this case, I would instruct the District Court to discharge the prisoner only if the Indiana Supreme Court fails, within a reasonable time, to accord him a review of the Public Defender's decision not to appeal the denial of coram nobis.
1
Ind.Const. Art. 1, § 13 (1851). In 1854 the Supreme Court of Indiana said: 'It is not to be thought of, in a civilized community, for a moment, that any citizen put in jeopardy of life or liberty should be debarred of counsel because he was too poor to employ such aid. No Court could be respected, or respect itself, to sit and hear such a trial.' Webb v. Baird, 6 Ind. 13, 18. (Quoted in the dissenting opinion in Betts v. Brady, 316 U.S. 455, at 476—477, 62 S.Ct. 1252, at 1263, 86 L.Ed. 1595.)
2
Batchelor v. State, 189 Ind. 69, 125 N.E. 773 (1920).
3
State ex rel. White v. Hilgemann, 218 Ind. 572, 34 N.E.2d 129 (1941); State ex rel. Grecco v. Allen Circuit Court, 238 Ind. 571, 575, 153 N.E.2d 914, 916 (1958). But see State ex rel. Macon v. Orange Circuit Court, 243 Ind. 429, 185 N.E.2d 619.
4
Falkenburgh v. Jones, 5 Ind. 296 (1854); State ex rel. Morris v. Wallace, 41 Ind. 445 (1872). Since 1893, the right to a transcript has been conferred by statute. Burns' Ind.Ann.Stat.1946, § 4—3511.
5
'There is hereby created the office of Public Defender. The public defender shall be appointed by the Supreme Court of the state of Indiana to serve at the pleasure of said court, for a term of four (4) years. He shall be a resident of the state of Indiana, and a practicing lawyer of this state for at least three (3) years. The Supreme Court is authorized to give such tests as it may deem proper to determine the fitness of any applicant for appointment.' Indiana Acts 1945, c. 38, § 1, Burns' Ind.Ann.Stat.1956, § 13—1401.
6
'The public defender shall be paid an annual salary to be fixed by the supreme court of this state. He may, with the consent of said court, appoint or employ such deputies, stenographers or other clerical help as may be required to discharge his duties at compensation to be fixed by the court. He shall be provided with an office at a place to be located and designated by the Supreme Court, and he shall be paid his actual necessary and reasonable traveling expenses, including cost of food and lodging when away from the municipality in which his office is located on business of the office of the public defender, and he shall be provided with office furniture, fixtures and equipment, books, stationery, printing services, postage and supplies.' Indiana Acts 1945, c. 38, § 4, as amended, Burns' Ind.Ann.Stat.1956, § 13—1404.
7
Indiana Acts 1945, c. 38, § 2, Burns' Ind.Ann.Stat.1956, § 13—1402.
8
Indiana Acts 1945, c. 38, § 5, Burns' Ind.Ann.Stat.1956, § 13—1405.
9
'Rule 2—40 of this court, 1958 Edition, provides, in relevant part:
"An appeal may be taken to the Supreme Court from a judgment granting or denying a petition for a writ of error coram nobis. The sufficiency of the pleadings and of the evidence to entitle the petitioner to a vacation of the judgment will be considered upon an assignment of error that the finding is contrary to law. The transcript of so much of the record as is necessary to present all questions raised by appellant's propositions shall be filed with the clerk of the Supreme Court within ninety (90) days after the date of the decision. The provisions of the rules of this court applicable to appeals from final judgments shall govern as to the form and time of filing briefs." McCrary v. State, 241 Ind. 518, 533—534, 173 N.E.2d 300, 307.
'Rule 2—6 of this court, 1958 Edition, provides, in relevant part:
"There shall be attached to the front of the transcript, immediately following the index, a specific assignment of the errors relied upon by the appellant in which each specification of error shall be complete and separately numbered." 241 Ind., at 533, 173 N.E.2d, at 307.
10
'After a careful review of your hearing had on June 1 on your petition for Writ of Error Coram Nobis in the Criminal Court of Lake County, will advise that I am unable to find any error or errors that would have any merit to assign upon an appeal; therefore, I am hereby informing you that my office will not appeal the judgment denying your Petition for Writ of Error Coram Nobis.'
11
'(1) Inadequate representation by court-appointed counsel at his trial in Lake County, Indiana Criminal Court.
'(2) Procurement by State authorities of a confession from petitioner through fear produced by threats and prolonged questioning during an illegal detention.
'(3) Admission of confession before proof of the corpus delicti.
'(4) Admission into evidence of exhibits and testimony of petitioner's prior commitment to a mental institution and crimes of rape and attempted rape alleged to have been committed by the petitioner.'
12
We do not deal here with a preliminary screening procedure applicable alike to all coram nobis appeals. Nor need we determine in this case what procedural measures Indiana might constitutionally take to reduce the public expense of indigents' appeals. See Griffin v. Illinois, 351 U.S., at 20, 76 S.Ct., at 591.
| 12
|
372 U.S. 391
83 S.Ct. 822
9 L.Ed.2d 837
Edward M. FAY, Warden, et al., Petitioners,v.Charles NOIA.
No. 84.
Argued Jan. 7 and 8, 1963.
Decided March 18, 1963.
[Syllabus from pages 391-394 intentionally omitted]
William I. Siegel, Brooklyn, N.Y., for petitioners.
Leon B. Polsky, New York City, for respondent.
Joseph J. Rose, Albany, N.Y., for State of New York, as amicus curiae.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case presents important questions touching the federal habeas corpus jurisdiction, 28 U.S.C. § 2241 et seq., in its relation to state criminal justice. The narrow question is whether the respondent Noia may be granted federal habeas corpus relief from imprisonment under a New York conviction now admitted by the State to rest upon a confession obtained from him in violation of the Fourteenth Amendment, after he was denied state post-conviction relief because the coerced confession claim had been decided against him at the trial and Noia had allowed the time for a direct appeal to lapse without seeking review by a state appellate court.
2
Noia was convicted in 1942 with Santo Caminito and Frank Bonino in the County Court of Kings County, New York, of a felony murder in the shooting and killing of one Hammeroff during the commission of a robbery. The sole evidence against each defendant was his signed confession. Caminito and Bonino, but not Noia, appealed their convictions to the Appellate Division of the New York Supreme Court. These appeals were unsuccessful, but subsequent legal proceedings resulted in the releases of Caminito and Bonino on findings that their confessions had been coerced and their convictions therefore procured in violation of the Fourteenth Amendment.1 Although it has been stipulated that the coercive nature of Noia's confession was also established,2 the United States District Court for the Southern District of New York held in Noia's federal habeas corpus proceeding that because of his failure to appeal he must be denied relief under the provision of 28 U.S.C. § 2254 whereby 'An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State * * *.' 183 F.Supp. 222 (1960).3 The Court of Appeals for the Second Circuit reversed, one judge dissenting, and ordered that Noia's conviction be set aside and that he be discharged from custody unless given a new trial forthwith. 300 F.2d 345 (1962). The Court of Appeals questioned whether § 2254 barred relief on federal habeas corpus where the applicant had failed to exhaust state remedies no longer available to him at the time the habeas proceeding was commenced (here a direct appeal from the conviction), but held that in any event exceptional circumstances were present which excused compliance with the section. The court also rejected other arguments advanced in support of the proposition that the federal remedy was unavailable to Noia. The first was that the denial of state post-conviction coram nobis relief on the ground of Noia's failure to appeal barred habeas relief because such failure constituted an adequate and independent state ground of decision, such that this Court on direct review of the state coram nobis proceedings would have declined to adjudicate the federal questions presented. In rejecting this argument, the court—while expressing the view that '(j)ust as it would be an encroachment on the prerogatives of the state for the Supreme Court upon direct review to disregard the state ground, equally—if not more so—would it be a trespass against the state for a lower federal court, upon a petition for habeas corpus, to disregard the state ground in granting relief to the prisoner,' 300 F.2d at 359—held that the exceptional circumstances excusing compliance with § 2254 also established that Noia's failure to appeal was not a state procedural ground adequate to bar the federal habeas remedy: 'The coincidence of these factors: the undisputed violation of a significant constitutional right, the knowledge of this violation brought home to the federal court at the incipiency of the habeas corpus proceeding so forcibly that the state made no effort to contradict it, and the freedom the relator's codefendants now have by virtue of their vindications of the identical constitutional right leads us to conclude that the state procedural ground, that of a simple failure to appeal, reasonable enough to prevent federal judicial intervention in most cases, is in this particular case unreasonable and inadequate.' 300 F.2d, at 362. The second argument was that Noia's failure to appeal was to be deemed a waiver of his claim that he had been unconstitutionally convicted. The Court of Appeals rejected this argument on the ground that no waiver could be inferred in the circumstances. Id., at 351—352.
3
We granted certiorari. 369 U.S. 869, 82 S.Ct. 1140, 8 L.Ed.2d 274. We affirm the judgment of the Court of Appeals but reach that court's result by a different course of reasoning. We hold: (1) Federal courts have power under the federal habeas statute to grant relief despite the applicant's failure to have pursued a state remedy not available to him at the time he applies; the doctrine under which state procedural defaults are held to constitute an adequate and independent state law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal habeas statute. (2) Noia's failure to appeal was not a failure to exhaust 'the remedies available in the courts of the State' as required by § 2254; that requirement refers only to a failure to exhaust state remedies still open to the applicant at the time he files his application for habeas corpus in the federal court. (3) Noia's failure to appeal cannot under the circumstances be deemed an intelligent and understanding waiver of his right to appeal such as to justify the withholding of federal habeas corpus relief.
I.
4
The question has been much mooted under what circumstances, if any, the failure of a state prisoner to comply with a state procedural requirement, as a result of which the state courts decline to pass on the merits of his federal defense, bars subsequent resort to the federal courts for relief on habeas corpus.4 Plainly it is a question that has important implications for federal-state relations in the area of the administration of criminal justice. It cannot be answered without a preliminary inquiry into the historical development of the writ of habeas corpus.
5
We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum,5 in Anglo-American jurisprudence: 'the most celebrated writ in the English law.' 3 Blackstone Commentaries 129. It is 'a writ antecedent to statute, and throwing its root deep into the genius of our common law * * *. It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I.' Secretary of State for Home Affairs v. O'Brien, (1923) A.C. 603, 609 (H.L.). Received into our own law in the colonial period,6 given explicit recognition in the Federal Constitution, Art. I, § 9, cl. 2,7 incorporated in the first grant of federal court jurisdiction, Act of September 24, 1789, c. 20, § 14, 1 Stat. 81—82, habeas corpus was early confirmed by Chief Justice John Marshall to be a 'great constitutional privilege.' Ex parte Bollman and Swartwout, 4 Cranch 75, 95, 2 L.Ed. 554. Only two Terms ago this Court had occasion to reaffirm the high place of the writ in our jurisprudence: 'We repeat what has been so truly said of the federal writ: 'there is no higher duty than to maintain it unimpaired,' Bowen v. Johnston, 1939, 306 U.S. 19, 26, 59 S.Ct. 442, 446, 83 L.Ed. 455, and unsuspended, save only in the cases specified in our Constitution.' Smith v. Bennett, 365 U.S. 708, 713, 81 S.Ct. 895, 898, 6 L.Ed.2d 39.
6
These are not extravagant expressions. Behind them may be discerned the unceasing contest between personal liberty and government oppression. It is no accident that habeas corpus has time and again played a central role in national crises, wherein the claims of order and of liberty clash most acutely, not only in England in the seventeenth century,8 but also in America from our very beginnings, and today.9 Although in form the Great Writ is simply a mode of procedure, its history is inextricably intertwined with the growth of fundamental rights of personal liberty. For its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release. Thus there is nothing novel in the fact that today habeas corpus in the federal courts provides a mode for the redress of denials of due process of law. Vindication of due process is precisely its historic office. In 1593, for example, a bill was introduced in the House of Commons, which, after deploring the frequency of violations of 'the great Charter and auncient good Lawes and statutes of this realme,' provided:
7
'Fore remedy whereof be it enacted: That the provisions and prohibicions of the said great Charter and other Lawes in that behalfe made be dulie and inviolatelie observed. And that no person or persons be hereafter committed to prison but yt be by sufficient warrant and Authorities and by due course and proceedings in Lawe * * *.
8
'And that the Justice of anie the Queenes Majesties Courts of Recorde at the common Lawe maie awarde a writt of habeas Corpus for the deliverye of anye person so imprisoned * * *.'10
9
Although it was not enacted, this bill accurately prefigured the union of the right to due process drawn from Magna Charta and the remedy of habeas corpus accomplished in the next century.
10
Of course standards of due process have evolved over the centuries. But the nature and purpose of habeas corpus have remained remarkably constant. History refutes the notion that until recently the writ was available only in a very narrow class of lawless imprisonments. For example, it is not true that at common law habeas corpus was exclusively designed as a remedy for executive detentions; it was early used by the great common-law courts to effect the release of persons detained by order of inferior courts.11 The principle that judicial as well as executive restraints may be intolerable received dramatic expression in Bushell's case, Vaughan, 135, 124 Eng.Rep. 1006, 6 Howell's State Trials 999 (1670). Bushell was one of the jurors in the trial, held before the Court of Oyer and Terminer at the Old Bailey, of William Penn and William Mead on charges of tumultuous assembly and other crimes. When the jury brought in a verdict of not guilty, the court ordered the jurors committed for contempt. Bushell sought habeas corpus, and the Court of Common Pleas, in a memorable opinion by Chief Justice Vaughan, ordered him discharged from custody. The case is by no means isolated,12 and when hebeas corpus practice was codified in the Habeas Corpus Act of 1679, 31 Car. II, c. 2, no distinction was made between executive and judicial detentions.13
11
Nor is it true that at common law habeas corpus was available only to inquire into the jurisdiction, in a narrow sense, of the committing court. Bushell's case is again in point. Chief Justice Vaughan did not base his decision on the theory that the Court of Oyer and Terminer had no jurisdiction to commit persons for contempt, but on the plain denial of due process, violative of Magna Charta, of a court's imprisoning the jury because it disagreed with the verdict:
12
'* * * (W)hen a man is brought by Habeas Corpus to the Court, and upon retorn of it, it appears to the Court, That he was against Law imprison'd and detain'd, * * * he shall never be by the Act of the Court remanded to his unlawful imprisonment, for then the Court should do an act of Injustice in imprisoning him, de novo, against Law, whereas the great Charter is, Quod nullus libet homo imprisonetur nisi per legem terrae; This is the present case, and this was the case upon all the Presidents (precedents) produc'd and many more that might be produc'd, where upon Habeas Corpus, many have been discharg'd * * *.
13
'This appears plainly by many old Books, if the Reason of them be rightly taken, For insufficient causes are as no causes retorn'd; and to send a man back to Prison for no cause retorn'd, seems unworthy of a Court.' Vaughan, at 156, 124 Eng.Rep., at 1016, 9 Howell's State Trials, at 1023.
14
To the same effect, we read in Bacon's Abridgment:
15
'(I)f the commitment be against law, as being made by one who had no jurisdiction of the cause, or for a matter for which by law no man ought to be punished, the court are to discharge him * * *; and the commitment is liable to the same objection where the cause is so loosely set forth, that the court cannot adjudge whether it were a reasonable ground of imprisonment or not.'14
16
Thus, at the time that the Suspension Clause was written into our Federal Constitution and the first Judiciary Act was passed conferring habeas corpus jurisdiction upon the federal judiciary, there was respectable common-law authority for the proposition that habeas was available to remedy any kind of governmental restraint contrary to fundamental law. In this connection it is significant that neither the Constitution nor the Judiciary Act anywhere defines the writ, although the Act does intimate, 1 Stat. 82, that its issuance is to be 'agreeable to the principles and usages of law;—the common law, presumably. We need not pause to consider whether it was the Framers' understanding that congressional refusal to permit the federal courts to accord the writ its full common-law scope as we have described it might constitute an unconstitutional suspension of the privilege of the writ. There have been some intimations of support for such a proposition in decisions of this Court. Thus Mr. Justice (later Chief Justice) Stone wrote for the Court that '(t)he use of the writ * * * as an incident of the federal judicial power is implicitly recognized by Article I, § 9, Cl. 2, of the Constitution.' McNally v. Hill, 293 U.S. 131, 135, 55 S.Ct. 24, 26, 79 L.Ed. 238. (Italics supplied.) To the same effect are the words of Chief Justice Chase in Ex parte Yerger, 8 Wall. 85, 95, 19 L.Ed. 332: 'The terms of this provision (the Suspension Clause) necessarily imply judicial action.' And see United States ex rel. Turner v. Williams, 194 U.S. 279, 295, 24 S.Ct. 719, 724, 48 L.Ed. 979 (concurring opinion).15 But at all events it would appear that the Constitution invites, if it does not compel, cf. Byrd v. Blue Ridge Rural Elec. Cooperative, 356 U.S. 525, 537, 78 S.Ct. 893, 900, 2 L.Ed.2d 953, a generous construction of the power of the federal courts to dispense the writ conformably with common-law practice.
17
The early decision of this Court in Ex parte Watkins, 3 Pet. 193, 7 L.Ed. 650, which held that the judgment of a federal court of competent jurisdiction could not be impeached on habeas, seems to have viewed the power more narrowly; see also Ex parte Kearney, 7 Wheat. 38, 5 L.Ed. 391. But Watkins may have been compelled by factors, affecting peculiarly the jurisdiction of this Court, which are not generally applicable to federal habeas corpus powers. It was plain from the decision in Marbury v. Madison, 1 Cranch 137, 174—175, 2 L.Ed. 60, which had narrowly construed the grant of original jurisdiction to the Supreme Court in Article III, that the Court would have the power to issue writs of habeas corpus only if such issuance could be deemed an exercise of appellate jurisdiction. Confronted with the question in Ex parte Bollman and Swartwout, 4 Cranch 75, 2 L.Ed. 554—like Watkins, a case of direct application to the Court for the writ—the Court held that the jurisdiction 'which the court is now asked to exercise is clearly appellate. It is the revision of a decision of an inferior court, by which a citizen has been committed to gaol.' 4 Cranch, at 100. This answer sufficed to enable the discharge of the petitioners, who had been committed (but not tried or convicted) for treason; but at the same time it virtually dictated the result in Watkins. The Court had no general jurisdiction of appeals from federal criminal judgments, see pp. 834—835, infra; if, therefore, the writ of habeas corpus was appellate in nature, its issuance to vacate such a judgment would have the effect of accomplishing indirectly what the Court had no power to do directly. This reasoning is prominent in Chief Justice Marshall's opinion for the Court in Watkins. See 3 Pet. at 203.
18
Strictly, then, Watkins is authority only as to this Court's power to issue the writ; the habeas jurisdiction of the other federal courts and judges, including the individual Justices of the Supreme Court, has generally been deemed original. In re Kaine, 14 How. 103, 14 L.Ed. 345; Ex parte Yerger, 8 Wall. 85, 101, 19 L.Ed. 332. But cf. Ex parte Clarke, 100 U.S. 399, 25 L.Ed. 715. But even as to this Court's power, the life of the principles advanced in Watkins was relatively brief.16 In Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872, again a case of direct application to this Court for the writ, the Court ordered the release of one duly convicted in a Federal Circuit Court. The trial judge, after initially imposing upon the defendant a sentence in excess of the legal maximum, had attempted to correct the error by resentencing him. The Court held this double-sentencing procedure unconstitutional, on the ground of double jeopardy, and while conceding that the Circuit Court had a general competence in criminal cases, reasoned that it had no jurisdiction to render a patently lawless judgment.
19
This marked a return to the common-law principle that restraints contrary to fundamental law, by whatever authority imposed, could be redressed by writ of habeas corpus. See also Ex parte Wells, 18 How. 307, 15 L.Ed. 421; Ex parte Parks, 93 U.S. 18, 21, 23 L.Ed. 787. The principle was clearly stated a few years after the Lange decision by Mr. Justice Bradley, writing for the Court in Ex parte Siebold, 100 U.S. 371, 376—377, 25 L.Ed. 717:
20
'* * * The validity of the judgments is assailed on the ground that the acts of Congress under which the indictments were found are unconstitutional. If this position is well taken, it affects the foundation of the whole proceedings. An unconstitutional law is void, and is as no law. An offence created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment. It is true, if no writ of error lies, the judgment may be final, in the sense that there may be no means of reversing it. But personal liberty is of so great moment in the eye of the law that the judgment of an inferior court affecting it is not deemed so conclusive but that * * * the question of the court's authority to try and imprison the party may be reviewed on habeas corpus * * *.'
21
The course of decisions of this Court from Lange and Siebold to the present makes plain that restraints contrary to our fundamental law, the Constitution, may be challenged on federal habeas corpus even though imposed pursuant to the conviction of a federal court of competent jurisdiction.17
22
The same principles have consistently been applied in cases of state prisoners seeking habeas corpus in the federal courts, although the development of the law in this area was at first delayed for several reasons. The first Judiciary Act did not extend federal habeas to prisoners in state custody, Ex parte Dorr, 3 How. 103, 11 L.Ed. 514; and shortly after Congress removed this limitation in 1867, it withdrew from this Court jurisdiction of appeals from habeas decisions by the lower federal courts and did not restore it for almost 20 years.18 Moreover, it was not until this century that the Fourteenth Amendment was deemed to apply some of the safeguards of criminal procedure contained in the Bill of Rights to the States. Yet during the period of the withdrawal of the Supreme Court's jurisdiction of habeas appeals, the lower federal courts did not hesitate to discharge state prisoners whose convictions rested on unconstitutional statutes or had otherwise been obtained in derogation of constitutional rights.19 After its jurisdiction had been restored, this Court adhered to the pattern set by the lower federal courts and to the principles enunciated in Ex parte Siebold and the other federal-prisoner cases.20 More recently, further applications of the Fourteenth Amendment in state criminal proceedings have led the Court to find correspondingly more numerous occasions upon which federal habeas would lie.21
23
Mr. Justice Holmes expressed the rationale behind such decisions in language that sums up virtually the whole history of the Great Writ:
24
'* * * (H)abeas corpus cuts through all forms and goes to the very tissue of the structure. It comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the inquiry whether they have been more than an empty shell.
25
'The argument for the appellee in substance is that the trial was in a court of competent jurisdiction * * *. But * * * (w)hatever disagreement there may be as to the scope of the phrase 'due process of law,' there can be no doubt that it embraces the fundamental conception of a fair trial * * *. We are not speaking of mere disorder, or mere irregularities in procedure, but of a case where the processes of justice are actually subverted. In such a case, the Federal court has jurisdiction to issue the writ. The fact that the state court still has its general jurisdiction and is otherwise a competent court does not make it impossible to find that a jury has been subjected to intimidation in a particular case. The loss of jurisdiction is not general, but particular, and proceeds from the control of a hostile influence.'22
26
We do not suggest that this Court has always followed an unwavering line in its conclusions as to the availability of the Great Writ. Our development of the law of federal habeas corpus has been attended, seemingly, with some backing and filling. E.g., Ex parte Parks, 93 U.S. 18, 23 L.Ed. 787; Ex parte Bigelow, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005; In re Belt, 159 U.S. 95, 15 S.Ct. 987, 40 L.Ed. 88; In re Moran, 203 U.S. 96, 27 S.Ct. 25, 51 L.Ed. 105; Knewel v. Egan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036. Although the remedy extends to federal prisoners held in violation of federal law and not merely of the Federal Constitution, many cases have denied relief upon allegations merely of error of law and not of a substantial constitutional denial. E.g., Ex parte Parks, supra, 93 U.S. at 20 21; In re Wight, 134 U.S. 136, 148, 10 S.Ct. 487, 490, 33 L.Ed. 865; Harlan v. McGourin, 218 U.S. 442, 448, 31 S.Ct. 44, 47, 54 L.Ed. 1101; Eagles v. United States ex rel. Samuels, 329 U.S. 304, 67 S.Ct. 313, 91 L.Ed. 308. Such decisions are not however authorities against applications which invoke the historic office of the Great Writ to redress detentions in violation of fundamental law.23
27
In some of the cases the denial of the remedy on jurisdictional grounds seems to have been chosen in preference to decision of the merits of constitutional claims felt to be tenuous. E.g., In re Moran, supra; Knewel v. Egan, supra; Goto v. Lane, 265 U.S. 393, 44 S.Ct. 525, 68 L.Ed. 1070; United States v. Valante, 264 U.S. 563, 44 S.Ct. 411, 68 L.Ed. 850.24 And doubtless a powerful influence against the allowance of the remedy to state prisoners flowed from the availablity of review of state criminal judgments in this Court as of right. See, e.g., Andrews v. Swartz, 156 U.S. 272, 276, 15 S.Ct. 389, 391, 39 L.Ed. 422. Before 1916 review of such judgments was not discretionary by writ of certiorari but of right by writ of error.25 The occasions on which the extraordinary remedy of habeas corpus was indispensable were therefore few, since the practice of the Court was to put the habeas corpus applicant to his writ of error. E.g., In re Frederich, 149 U.S. 70, 13 S.Ct. 793, 37 L.Ed. 653; Bergemann v. Backer, 157 U.S. 655, 15 S.Ct. 727, 39 L.Ed. 845. And when the Court had no general appellate jurisdiction of federal criminal judgments, which was the case until 1891,26 the writ was sparingly allowed for the reason stated by Chief Justice Marshall in Ex parte Watkins, supra. Thus, in Bigelow the Court said: 'No appeal or writ of error * * * lies to this court. The act of congress has made the judgment of that court (the Supreme Court of the District of Columbia) conclusive, as it had a right to do, and the defendant, having one review of his trial and judgment, has no special reason to complain.' 113 U.S. at 329, 5 S.Ct. at 543. The same view is apparent in Ex parte Parks, supra, 93 U.S. at 20—21; Ex parte Curtis, 106 U.S. 371, 375, 1 S.Ct. 381, 385, 27 L.Ed. 232. Cf. Harlan v. McGourin, supra, 218 U.S., at 448, 31 S.Ct., at 47.
28
Nevertheless, the possibly grudging scope given the Great Writ in such cases is overshadowed by the numerous and varied allegations which this Court has deemed cognizable on habeas, not only in the last decades, but continuously since the fetters of the Watkins decision were thrown off in Ex parte Lange. E.g., Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89 (Fifth Amendment grand jury right); In re Converse, 137 U.S. 624, 11 S.Ct. 191, 34 L.Ed. 796 (Due Process Clause of Fourteenth Amendment); Rogers v. Peck, 199 U.S. 425, 26 S.Ct. 87, 50 L.Ed. 256 (same); Felts v. Murphy, 201 U.S. 123, 26 S.Ct. 366, 50 L.Ed. 689 (same); Lott v. Pittman, 243 U.S. 588, 37 S.Ct. 473, 61 L.Ed. 915 (same); Callan v. Wilson, 127 U.S. 540, 557, 8 S.Ct. 1301, 1307, 32 L.Ed. 223 (constitutional right to jury trial in federal criminal cases); Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016 (same) (by implication); Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138 (Self-Incrimination Clause of Fifth Amendment); Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153 (double jeopardy); Andersen v. Treat, 172 U.S. 24, 19 S.Ct. 67, 43 L.Ed. 351 (Sixth Amendment right to counsel); and see decisions cited at notes 17, 20, and 21, supra.
29
And so, although almost 300 years have elapsed since Bushell's Case, changed conceptions of the kind of criminal proceedings so fundamentally defective as to make imprisonment pursuant to them constitutionally intolerable should not be allowed to obscure the basic continuity in the conception of the writ as the remedy for such imprisonments.
30
It now remains to consider this principle in the application to the present case. It was settled in Brown v. Allen, supra, that the use of a coerced confession in a state criminal trial could be challenged in a federal habeas corpus proceeding. Yet actually the principle had been foreshadowed much earlier—indeed, in the very first case in which this Court reversed a state conviction on the ground that coerced confessions had been used in evidence. 'That complaint is * * * of a wrong so fundamental that it made the whole proceeding a mere pretense of a trial and rendered the conviction and sentence wholly void. Moore v. Dempsey * * *. (A)nd the proceeding thus vitiated could be challenged in any appropriate manner.' Brown v. Mississippi, 297 U.S. 278, 286—287, 56 S.Ct. 461, 465, 80 L.Ed. 682. Under the conditions of modern society, Noia's imprisonment, under a conviction procured by a confession held by the Court of Appeals in Caminito v. Murphy to have been coerced, and which the State here concedes was obtained in violation of the Fourteenth Amendment, is no less intolerable than was Bushell's under the conditions of a very different society; and habeas corpus is no less the appropriate remedy.
II.
31
But, it is argued, a different result is compelled by the exigencies of federalism, which played no role in Bushell's case.
32
We can appraise this argument only in light of the historical accommodation that has been worked out between the state and federal courts respecting the administration of federal habeas corpus. Our starting point is the Judiciary Act of February 5, 1867, c. 28, § 1, 14 Stat. 385—386, which first extended federal habeas corpus to state prisoners generally, and which survives, except for some changes in wording, in the present statutory codification. The original Act and the current provisions are set out in an Appendix at the end of this opinion, pp. 441—445. Although the Act of 1867, like its English and American predecessors, nowhere defines habeas corpus, its expansive language and imperative tone, viewed against the background of post-Civil War efforts in Congress to deal severely with the States of the former Confederacy, would seem to make inescapable the conclusion that Congress was enlarging the habeas remedy as previously understood, not only in extending its coverage to state prisoners, but also in making its procedures more efficacious. In 1867, Congress was anticipating resistance to its Reconstruction measures and planning the implementation of the post-war constitutional Amendments. Debated and enacted at the very peak of the Radical Republicans' power, see 2 Warren, The Supreme Court in United States History (1928), 455—497, the measure that became the Act of 1867 seems plainly to have been designed to furnish a method additional to and independent of direct Supreme Court review of state court decisions for the vindication of the new constitutional guarantees. Congress seems to have had no thought, thus, that a state prisoner should abide state court determination of his constitutional defense—the necessary predicate of direct review by this Court—before resorting to federal habeas corpus. Rather, a remedy almost in the nature of removal from the state to the federal courts of state prisoners' constitutional contentions seems to have been envisaged. See Ex parte Bridges, Fed.Cas.No.1,862, 2 Woods 428, 432 (Cir.Ct.N.D.Ga.1875); Ex parte McCready, Fed.Cas.No.8732, 1 Hughes 598 (Cir.Ct.E.D.Va.1874). Compare Rev.Stat., 1874, § 641 (providing for removal to Federal Circuit Court 'When any civil suit or criminal prosecution is commenced in any State court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the State * * * any right secured to him by any law providing for the equal civil rights of citizens of the United States'); Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667.
33
The elaborate provisions in the Act for taking testimony and trying the facts anew in habeas hearings27 lend support to this conclusion, as does the legislative history of House bill No. 605, which became, with slight changes, the Act of February 5, 1867. The bill was introduced in response to a resolution of the House on December 19, 1865, asking the Judiciary Committee to determine 'what legislation is necessary to enable the courts of the United States to enforce the freedom of the wives and children of soldiers of the United States * * * and also to enforce the liberty of all persons under the operation of the constitutional amendment abolishing slavery.' Cong. Globe, 39th Cong., 1st Sess. 87. The terms in which it was described by its proponent, Representative Lawrence of Ohio, leave little doubt of the breadth of its intended scope: 'the effect of * * * (bill No. 605) is to enlarge the privilege of the writ of hobeas (sic) corpus, and make the jurisdiction of the courts and judges of the United States coextensive with all the powers that can be conferred upon them. It is a bill of the largest liberty.' Cong.Globe, 39th Cong., 1st Sess. 4151 (1866). This Court, shortly after the passage of the Act, described it in equally broad terms: 'This legislation is of the most comprehensive character. It brings within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary to the National Constitution, treaties, or laws. It is impossible to widen this jurisdiction.' Ex parte McCardle, 6 Wall. 318, 325 326, 18 L.Ed. 816.
34
In thus extending the habeas corpus power of the federal courts evidently to what was conceived to be its constitutional limit, the Act of February 5, 1867, clearly enough portended difficult problems concerning the relationship of the state and federal courts in the area of criminal administration. Such problems were not slow to mature. Only eight years after passage of the Act, Mr. Justice Bradley, sitting as Circuit Justice, held that a convicted state prisoner who had not sought any state appellate or collateral remedies could nevertheless win immediate release on federal habeas if he proved the unconstitutionality of his conviction; although the judgment was not final within the state court system, the federal court had the power to inquire into the legality of the prisoner's detention. Ex parte Bridges, supra. Accord, Ex parte McCready, supra. This holding flowed inexorably from the clear congressional policy of affording a federal forum for the determination of the federal claims of state criminal defendants, and it was explicitly approved by the full Court in Ex parte Royall, 117 U.S. 241, 253, 6 S.Ct. 734, 741, 29 L.Ed. 868, a case in which habeas had been sought in advance of trial. The Court held that even in such a case the federal courts had the power to discharge a state prisoner restrained in violation of the Federal Constitution, see 117 U.S., at 245, 250—251, 6 S.Ct., at 739—740, but that ordinarily the federal court should stay its hand on habeas pending completion of the state court proceedings. This qualification plainly stemmed from considerations of comity rather than power, and envisaged only the postponement, not the relinquishment, of federal habeas corpus jurisdiction, which had attached by reason of the allegedly unconstitutional detention and could not be ousted by what the state court might decide. As well stated in a later case:
35
'* * * While the federal courts have the power and may discharge the accused in advance of his trial, if he is restrained of his liberty in violation of the federal constitution or laws, * * * the practice of exercising such power before the question has been raised or determined in the state court is one which ought not to be encouraged. The party charged waives no defect of jurisdiction by submitting to a trial of his case upon the merits, and we think that comity demands that the state courts, under whose process he is held, and which are, equally with the federal courts, charged with the duty of protecting the accused in the enjoyment of his constitutional rights, should be appealed to in the first instance. Should such rights be denied, his remedy in the federal court will remain unimpaired.'28
36
These decisions fashioned a doctrine of abstention, whereby full play would be allowed the States in the administration of their criminal justice without prejudice to federal rights enwoven in the state proceedings. Thus the Court has frequently held that application for a writ of habeas corpus should have been denied 'without prejudice to a renewal of the same after the accused had availed himself of such remedies as the laws of the state afforded * * *.' Minnesota v. Brundage, 180 U.S. 499, 500—501, 21 S.Ct. 455, 456, 45 L.Ed. 639. See also Ex parte Royall, supra, 117 U.S., at 254, 6 S.Ct., at 741. With refinements, this doctrine requiring the exhaustion of state remedies is now codified in 28 U.S.C. § 2254.29 But its rationale has not changed: 'it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation * * *. Solution was found in the doctrine of comity between courts, a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.' Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761. The rule of exhaustion 'is not one defining power but one which relates to the appropriate exercise of power.' Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455. Cf. Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3; Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541; Douglas v. Green, 363 U.S. 192, 80 S.Ct. 1048, 4 L.Ed.2d 1142.
37
The reasoning of Ex parte Royall and its progeny suggested that after the state courts had decided the federal question on the merits against the habeas petitioner, he could return to the federal court on habeas and there relitigate the question, else a rule of timing would become a rule circumscribing the power of the federal courts on habeas, in defiance of unmistakable congressional intent. And so this Court has consistently held, save only in Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969. In that case, the State Supreme Court had rejected on the merits petitioner's contention of mob domination at his trial, and this Court held that habeas would not lie because the State had afforded petitioner corrective process. However, the decision seems grounded not in any want of power, for the Court described the federal courts' habeas powers in the broadest terms, 237 U.S. at 330—331, 35 S.Ct., at 588, but rather in a narrow conception of due process in state criminal justice. The Court felt that so long as Frank had had an opportunity to challenge his conviction in some impartial tribunal, such as the State Supreme Court, he had been afforded the process he was constitutionally due.
38
The majority's position in Frank, however, was substantially repudiated in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543, a case almost identical in all pertinent respects to Frank. Mr. Justice Holmes, writing for the Court in Moore (he had written the dissenting opinion in Frank), said: 'if in fact a trial is dominated by a mob so that there is an actual interference with the course of justice, there is a departure from due process of law; * * * (if) the State Courts failed to correct the wrong, * * * perfection in the machinery for correction * * * can (not) prevent this Court from securing to the petitioners their constitutional rights.' 261 U.S., at 90—91, 43 S.Ct., at 266. It was settled in Moore, restoring what evidently had been the assumption until Frank, see, e.g., Cook v. Hart, 146 U.S. 183, 194—195, 13 S.Ct. 40, 43—44, 36 L.Ed. 934; and cases cited in note 28, supra, that the state courts' view of the merits was not entitled to conclusive weight. We have not deviated from that position.30 Thus, we have left the weight to be given a particular state court adjudication of a federal claim later pressed on habeas substantially in the discretion of the Federal District Court: 'the state adjudication carries the weight that federal practice gives to the conclusion of a court * * * of last resort another jurisdiction on federal constitutional issues. It is not res judicata.' Brown v. Allen, supra, 344 U.S., at 458, 73 S.Ct., at 408 (opinion of Mr. Justice Reed). '* * * (N)o binding weight is to be attached to the State determination. The congressional requirement is greater. The State court cannot have the last say when it, though on fair consideration and what procedurally may be deemed fairness, may have misconceived a federal constitutional right.' 344 U.S., at 508, 73 S.Ct., at 446 (opinion of Mr. Justice Frankfurter). Even if the state court adjudication turns wholly on primary, historical facts, the Federal District Court has a broad power on habeas to hold an evidentiary hearing and determine the facts.31
39
The breadth of the federal courts' power of independent adjudication on habeas corpus stems from the very nature of the writ, and conforms with the classic English practice.32 As put by Mr. Justice Holmes in his dissenting opinion in Frank v. Mangum, supra, 237 U.S., at 348, 35 S.Ct., at 595: 'If the petition discloses facts that amount to a loss of jurisdiction in the trial court, jurisdiction could not be restored by any decision above.' It is of the historical essence of habeas corpus that it lies to test proceedings so fundamentally lawless that imprisonment pursuant to them is not merely erroneous but void. Hence, the familiar principle that res judicata is inapplicable in habeas proceedings, see, e.g., Darr v. Burford, 339 U.S. 200, 214, 70 S.Ct. 587, 595, 94 L.Ed. 761; Salinger v. Loisel, 265 U.S. 224, 230, 44 S.Ct. 519, 521, 68 L.Ed. 989; Frank v. Mangum, 237 U.S. 309, 334, 35 S.Ct. 582, 589, 59 L.Ed. 969; Church, Habeas Corpus (1884), § 386, is really but an instance of the larger principle that void judgments may be collaterally impeached. Restatement, Judgments (1942), §§ 7, 11; Note, Res Judicata, 65 Harv.L.Rev. 818, 850 (1952). Cf. Windsor v. McVeigh, 93 U.S. 274, 282—283, 23 L.Ed. 914. So also, the traditional characterization of the writ of habeas corpus as an original (save perhaps when issued by this Court33) civil remedy for the enforcement of the right to personal liberty,34 rather than as a stage of the state criminal proceedings or as an appeal therefrom, emphasizes the independence of the federal habeas proceedings from what has gone before. This is not to say that a state criminal judgment resting on a constitutional error is void for all purposes. But conventional notions of finality in criminal litigation cannot be permitted to defeat the manifest federal policy that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review.
40
Despite the Court's refusal to give binding weight to state court determinations of the merits in habeas, it has not infrequently suggested that where the state court declines to reach the merits because of a procedural default, the federal courts may be foreclosed from granting the relief sought on habeas corpus.35 But the Court's practice in this area has been far from uniform,36 and even greater divergency has characterized the practice of the lower federal courts.37
41
For the present, however, it suffices to note that rarely, if ever, has the Court predicated its deference to state procedural rules on a want of power to entertain a habeas application where a procedural default was committed by the defendant in the state courts. Typically, the Court, like the District Court in the instant case, has approached the problem as an aspect of the rule requiring exhaustion of state remedies, which is not a rule distributing power as between the state and federal courts. See pp. 417—420, supra. That was the approach taken in the Spencer and Daniels decisions, the most emphatic in their statement of deference to state rules of procedure. The same considerations of comity that led the Court to refuse relief to one who had not yet availed himself of his state remedies likewise prompted the refusal of relief to one who had inexcusably failed to tender the federal questions to the state courts. Either situation poses a threat to the orderly administration of criminal justice that ought if possible to be averted. Whether in fact the conduct of a Spencer or a Daniels was inexcusable in this sense is beside the point, as is the arguable illogicality of turning a rule of timing into a doctrine of forfeitures. The point is that the Court, by relying upon a rule of discretion, avowedly flexible, Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541, yielding always to 'exceptional circumstances,' Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455, has refused to concede jurisdictional significance to the abortive state court proceeding.
III.
42
We have reviewed the development of habeas corpus at some length because the question of the instant case has obvious importance to the proper accommodation of a great constitutional privilege and the requirements of the federal system. Our survey discloses nothing to suggest that the Federal District Court lacked the power to order Noia discharged because of a procedural forfeiture he may have incurred under state law. On the contrary, the nature of the writ at common law, the language and purpose of the Act of February 5, 1867, and the course of decisions in this Court extending over nearly a century are wholly irreconcilable with such a limitation. At the time the privilege of the writ was written into the Federal Constitution it was settled that the writ lay to test any restraint contrary to fundamental law, which in England stemmed ultimately from Magna Charta but in this country was embodied in the written Constitution. Congress in 1867 sought to provide a federal forum for state prisoners having constitutional defenses by extending the habeas corpus powers of the federal courts to their constitutional maximum. Obedient to this purpose, we have consistently held that federal court jurisdiction is conferred by the allegation of an unconstitutional restraint and is not defeated by anything that may occur in the state court proceedings. State procedural rules plainly must yield to this overriding federal policy.
43
A number of arguments are advanced against this conclusion. One, which concedes the breadth of federal habeas power, is that a state prisoner who forfeits his opportunity to vindicate federal defenses in the state court has been given all the process that is constitutionally due him, and hence is not restrained contrary to the Constitution. But this wholly misconceives the scope of due process of law, which comprehends not only the right to be heard but also a number of explicit procedural rights—for example, the right not to be convicted upon evidence which includes one's coerced confession—drawn from the Bill of Rights. As Mr. Justice Holmes explained in Moore v. Dempsey, see pp. 839—840, supra, a mob-dominated trial is no less a denial of due process because the State Supreme Court believed that the trial was actually a fair one. A fortiori, due process denied in the proceedings leading to conviction is not restored just because the state court declines to adjudicate the claimed denial on the merits.
44
A variant of this argument is that if the state court declines to entertain a federal defense because of a procedural default, then the prisoner's custody is actually due to the default rather than to the underlying constitutional infringement, so that he is not in custody in violation of federal law.38 But this ignores the important difference between rights and particular remedies. Cf. 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; Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782. A defendant by committing a procedural default may be debarred from challenging his conviction in the state courts even on federal constitutional grounds. But a forfeiture of remedies does not legitimize the unconstitutional conduct by which his conviction was procured. Would Noia's failure to appeal have precluded him from bringing an action under the Civil Rights Acts against his inquisitors? The Act of February 5, 1867, like the Civil Rights Acts, was intended to furnish an independent, collateral remedy for certain privations of liberty. The conceptual difficulty of regarding a default as extinguishing the substantive right is increased where, as in Noia's case, the default forecloses extraordinary remedies. In what sense is Noia's custody not in violation of federal law simply because New York will not allow him to challenge it on coram nobis or on delayed appeal? But conceptual problems aside, it should be obvious that to turn the instant case on the meaning of 'custody in violation of the Constitution' is to reason in circles. The very question we face is how completely federal remedies fall with the state remedies; when we have answered this, we shall know in what sense custody may be rendered lawful by a supervening procedural default.
45
It is a familiar principle that this Court will decline to review state court judgments which rest on independent and adequate state grounds, notwithstanding the co-presence of federal grounds. See, e.g., N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Fox Film Corp. v. Muller, 296 U.S. 207, 56 S.Ct. 183, 80 L.Ed. 158. Section 25 of the Judiciary Act of 1789, c. 20, 1 Stat. 85—87, denied this Court power to base the reversal of a state court decision on any error other 'than such as * * * immediately respects * * * questions of validity or construction of the said (Federal) constitution, treaties, statutes, commissions, or authorities in dispute.' The deletion of the express restriction by the Judiciary Act of February 5, 1867, c. 28, § 2, 14 Stat. 386—387, did not enlarge this Court's power in that regard. Murdock v. Memphis, 20 Wall. 590, 22 L.Ed. 429. Murdock was a case involving state substantive grounds, but the principle is also applicable in cases involving procedural grounds. See, e.g., Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789; Davis v. Wechsler, 263 U.S. 22, 44 S.Ct. 13, 68 L.Ed. 143; Ward v. Board of County Comm'rs, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 761. Thus, a default such as Noia's, if deemed adequate and independent (a question on which we intimate no view), would cut off review by this Court of the state coram nobis proceeding in which the New York Court of Appeals refused him relief. It is contended that it follows from this that the remedy of federal habeas corpus is likewise cut off.39
46
The fatal weakness of this contention is its failure to recognize that the adequate state-ground rule is a function of the limitations of appellate review. Most of the opinion in the Murdock case is devoted to demonstrating the Court's lack of jurisdiction on direct review to decide questions of state law in cases also raising federal questions. It followed from this holding that if the state question was dispositive of the case, the Court could not decide the federal question. The federal question was moot; nothing turned on its resolution. And so we have held that the adequate state-ground rule is a consequence of the Court's obligation to refrain from rendering advisory opinions or passing upon moot questions.40
47
But while our appellate function is concerned only with the judgments or decrees of state courts, the habeas corpus jurisdiction of the lower federal courts is not so confined. The jurisdictional prerequisite is not the judgment of a state court but detention simpliciter. The entire course of decisions in this Court elaborating the rule of exhaustion of state remedies is wholly incompatible with the proposition that a state court judgment is required to confer federal habeas jurisdiction. And the broad power of the federal courts under 28 U.S.C. § 2243 summarily to hear the application and to 'determine the facts, and dispose of the matter as law and justice require,' is hardly characteristic of an appellate jurisdiction. Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him. Indeed, it has no other power; it cannot revise the state court judgment; it can act only on the body of the petitioner. In re Medley, Petitioner, 134 U.S. 160, 173, 10 S.Ct. 384, 388, 33 L.Ed. 835.
48
To be sure, this may not be the entire answer to the contention that the adequate state-ground principle should apply to the federal courts on habeas corpus as well as to the Supreme Court on direct review of state judgments. The Murdock decision may be supported not only by the factor of mootness, but in addition by certain characteristics of the federal system. The first question the Court had to decide in Murdock was whether it had the power to review state questions in cases also raising federal questions. It held that it did not, thus affirming the independence of the States in matters within the proper sphere of their lawmaking power from federal judicial interference. For the federal courts to refuse to give effect in habeas proceedings to state procedural defaults might conceivably have some effect upon the States' regulation of their criminal procedures. But the problem is crucially different from that posed in Murdock of the federal courts' deciding questions of substantive state law. In Noia's case the only relevant substantive law is federal—the Fourteenth Amendment. State law appears only in the procedural framework for adjudicating the substantive federal question. The paramount interest is federal. Cf. Dice v. Akron, C. & Y.R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398. That is not to say that the States have not a substantial interest in exacting compliance with their procedural rules from criminal defendants asserting federal defenses. Of course orderly criminal procedure is a desideratum, and of course there must be sanctions for the flouting of such procedure. But that state interest 'competes * * * against an ideal * * * (the) ideal of fair procedure.' Schaefer, Federalism and State Criminal Procedure, 70 Harv.L.Rev. 1, 5 (1956). And the only concrete impact the assumption of federal habeas jurisdiction in the face of a procedural default has on the state interest we have described, is that it prevents the State from closing off the convicted defendant's last opportunity to vindicate his constitutional rights, thereby punishing him for his default and deterring others who might commit similar defaults in the future.
49
Surely this state interest in an airtight system of forfeitures is of a different order from that, vindicated in Murdock, in the autonomy of state law within the proper sphere of its substantive regulation. The difference is illustrated in the settled principle that if a prisoner is detained lawfully under one count of the indictment, he cannot challenge the lawfulness of a second count on federal habeas. McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238. For the federal court to order the release of such a prisoner would be to nullify a proceeding—that under the first count—wholly outside the orbit of federal interest. Contrariwise the only count under which Noia was convicted and imprisoned is admitted to be vitiated by force of federal law.
50
Certainly this Court has differentiated the two situations in its application of the adequate state-ground rule. While it has deferred to state substantive grounds so long as they are not patently evasive of or discriminatory against federal rights, it has sometimes refused to defer to state procedural grounds only because they made burdensome the vindication of federal rights.41 That the Court nevertheless ordinarily gives effect to state procedural grounds may be attributed to considerations which are peculiar to the Court's role and function and have no relevance to habeas corpus proceedings in the Federal District Courts: the unfamiliarity of members of this Court with the minutiae of 50 States' procedures; the inappropriateness of crowding our docket with questions turning wholly on particular state procedures; the web of rules and statutes that circumscribes our appellate jurisdiction; and the inherent and historical limitations of such a jurisdiction.
51
A practical appraisal of the state interest here involved plainly does not justify the federal courts' enforcing on habeas corpus a doctrine of forfeitures under the guise of applying the adequate state-ground rule. We fully grant, see p. 438, infra, that the exigencies of federalism warrant a limitation whereby the federal judge has the discretion to deny relief to one who has deliberately sought to subvert or evade the orderly adjudication of his federal defenses in the state courts. Surely no stricter rule is a realistic necessity. A man under conviction for crime has an obvious inducement to do his very best to keep his state remedies open, and not stake his all on the outcome of a federal habeas proceeding which, in many respects, may be less advantageous to him than a state court proceeding. See Rogers v. Richmond, 365 U.S. 534, 547—548, 81 S.Ct. 735, 742—743, 5 L.Ed.2d 760. And if because of inadvertence or neglect he runs afoul of a state procedural requirement, and thereby forfeits his state remedies, appellate and collateral, as well as direct review thereof in this Court, those consequences should be sufficient to vindicate the State's valid interest in orderly procedure. Whatever residum of state interest there may be under such circumstances is manifestly insufficient in the face of the federal policy, drawn from the ancient principles of the writ of habeas corpus, embodied both in the Federal Constitution and in the habeas corpus provisions of the Judicial Code, and consistently upheld by this Court, of affording an effective remedy for restraints contrary to the Constitution. For these several reasons we reject as unsound in principle, as well as not supported by authority, the suggestion that the federal courts are without power to grant haneas relief to an applicant whose federal claims would not be heard on direct review in this Court because of a procedural default furnishing an adequate and independent ground of state decision.
52
What we have said substantially disposes of the further contention that 28 U.S.C. § 2254 embodies a doctrine of forfeitures and cuts off relief when there has been a failure to exhaust state remedies no longer available at the time habeas is sought. This contention is refuted by the language of the statute and by its history.42 It was enacted to codify the judicially evolved rule of exhaustion, particularly as formulated in Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572. See the review of the legislative history in Darr v. Burford, 339 U.S. 200, 211—213, 70 S.Ct. 587, 593—595, 94 L.Ed. 761. Nothing in the Hawk opinion points to past exhaustion. Very little support can be found in the long course of previous decisions by this Court elaborating the rule of exhaustion for the proposition that it was regarded at the time of the revision of the Judicial Code as jurisdictional rather than merely as a rule ordering the state and federal proceedings so as to eliminate unnecessary federal-state friction. There is thus no warrant for attributing to Congress, in the teeth of the language of § 2254, intent to work a radical innovation in the law of habeas corpus. We hold that § 2254 is limited in its application to failure to exhaust state remedies still open to the habeas applicant at the time he files his application in federal court.43 Parenthetically, we note that our holding in Irvin v. Dowd, 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d 900, is not inconsistent. Our holding there was that since the Indiana Supreme Court, Irvin v. State, 236 Ind. 384, 139 N.E.2d 898, had reached the merits of Irvin's federal claim, the District Court, 153 F.Supp. 531, was not barred by § 2254 from determining the merits of Irvin's constitutional contentions.
IV.
53
Noia timely sought and was denied certiorari here from the adverse decision of the New York Court of Appeals on his coram nobis application, and therefore the case does not necessarily draw in question the continued vitality of the holding in Darr v. Burford, supra, that a state prisoner must ordinarily seek certiorari in this Court as a precondition of applying for federal habeas corpus. But what we hold today necessarily overrules Darr v. Burford to the extent it may be thought to have barred a state prisoner from federal habeas relief if he had failed timely to seek certiorari in this Court from an adverse state decision. Furthermore, our decision today affects all procedural hurdles to the achievement of swift and imperative justice on habeas corpus, and because the hurdle erected by Darr v. Buford is unjustifiable under the principles we have expressed, even insofar as it may be deemed merely an aspect of the statutory requirement of present exhaustion, that decision in that respect also is hereby overruled.
54
The soundness of the decision was questioned from the beginning. See Pollock, Certiorari and Habeas Corpus, 42 J. of Crim.L. 356, 357—358, n. 15, 364 (1951). Section 2254 speaks only of 'remedies available in the courts of the State.' Nevertheless, the Court in Darr v. Burford put a gloss upon these words to include petitioning for certiorari in this Court, which is not the court of any State, among the remedies that an applicant must exhaust before proceeding in federal habeas corpus. It is true that before the enactment of § 2254 the Court had spoken of the obligation to seek review in this Court before applying for habeas. E.g., Baker v. Grice, 169 U.S. 284, 18 S.Ct. 323, 42 L.Ed. 748; Markuson v. Boucher, 175 U.S. 184, 20 S.Ct. 76, 44 L.Ed. 124. But that was at the time when review of state criminal judgments in this Court was by writ of error. Review here was thus a stage of the normal appellate process. The writ of certiorari, which today provides the usual mode of invoking this Court's appellate jurisdiction of state criminal judgments, 'is not a matter of right, but of sound judicial discretion, and will be granted only where there are special and important reasons therefor.' Supreme Court Rule 19(1). Review on certiorari therefore does not provide a normal appellate channel in any sense comparable to the writ of error.
55
It is also true that Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572, a decision cited in the Reviser's Note to § 2254, intimated in dictum that exhaustion might comprehend seeking certiorari here. 321 U.S., at 116—177, 64 S.Ct., at 449—450. But that passing reference cannot be exalted into an attribution to Congress of a design patently belied by the unequivocal statutory language.
56
The rationale of Darr v. Burford emphasized the values of comity between the state and federal courts, and assumed that these values would be realized by requiring a state criminal defendant to afford this Court an opportunity to pass upon state action before he might seek relief in federal habeas corpus. But the expectation has not been realized in experience. On the contrary the requirement of Darr v. Burford has proved only to be an unnecessarily burdensome step in the orderly processing of the federal claims of those convicted of state crimes. The goal of prompt and fair criminal justice has been impeded because in the overwhelming number of cases the applications for certiorari have been denied for failure to meet the standard of Rule 19. And the demands upon our time in the examination and decision of the large volume of petitions which fail to meet that test have unwarrantably taxed the resources of this Court. Indeed, it has happened that counsel on oral argument has confessed that the record was insufficient to justify our consideration of the case but that he had felt compelled to make the futile time-consuming application in order to qualify for proceeding in a Federal District Court on habeas corpus to make a proper record. Bullock v. South Carolina, 365 U.S. 292, 81 S.Ct. 686, 5 L.Ed.2d 570. And so in a number of cases the Court has apparently excused compliance with the requirement. See, e.g., Weston v. Sigler, 361 U.S. 37, 80 S.Ct. 141, 4 L.Ed.2d 111; Bailey v. Arkansas, 358 U.S. 869, 79 S.Ct. 101, 3 L.Ed.2d 101; Poret v. Sigler, 355 U.S. 60, 78 S.Ct. 144, 2 L.Ed.2d 107; Massey v. Moore, 348 U.S. 105, 75 S.Ct. 145, 99 L.Ed. 135. Cf. Thomas v. Arizona, 356 U.S. 390, 392, n. 1, 78 S.Ct. 885, 886, 2 L.Ed.2d 863. The same practice has sometimes been followed in the Federal District Courts. See Reitz, Federal Habeas Corpus: Postconviction Remedy for State Prisoners, 108 U. of PaL.Rev. 461, 499 (1960).
57
Moreover, comity does not demand that such a price in squandered judicial resources be paid; the needs of comity are adequately served in other ways. The requirement that the habeas petitioner exhaust state court remedies available to him when he applies for federal habeas corpus relief gives state courts the opportunity to pass upon and correct errors of federal law in the state prisoner's conviction. And the availability to the States of eventual review on certiorari of such decisions of lower federal courts as may grant relief is always open. Our function of making the ultimate accommodation between state criminal law enforcement and state prisoners' constitutional rights becomes more meaningful when grounded in the full and complete record which the lower federal courts on habeas corpus are in a position to provide.
V.
58
Although we hold that the jurisdiction of the federal courts on habeas corpus is not affected by procedural defaults incurred by the applicant during the state court proceedings, we recognize a limited discretion in the federal judge to deny relief to an applicant under certain circumstances. Discretion is implicit in the statutory command that the judge, after granting the writ and holding a hearing of appropriate scope, 'dispose of the matter as law and justice require,' 28 U.S.C. § 2243; and discretion was the flexible concept employed by the federal courts in developing the exhaustion rule. Furthermore, habeas corpus has traditionally been regarded as governed by equitable principles. United States ex rel. Smith. v. Baldi, 344 U.S. 561, 573, 73 S.Ct. 391, 397, 97 L.Ed. 549 (dissenting opinion). Among them is the principle that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks. Narrowly circumscribed, in conformity to the historical role of the writ of habeas corpus as an effective and imperative remedy for detentions contrary to fundamental law, the principle is unexceptionable. We therefore hold that the federal habeas judge may in his discretion deny relief to an applicant who has deliberately bypassed the orderly procedure of the state courts and in so doing has forfeited his state court remedies.
59
But we wish to make very clear that this grant of discretion is not to be interpreted as a permission to introduce legal fictions into federal habeas corpus. The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461—'an intentional relinquishment or abandonment of a know right or privilege'—furnishes the controlling standard. If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits—though of course only after the federal court has satisfied itself, by holding a hearing or by some other means, of the facts bearing upon the applicant's default. Cf. Price v. Johnston, 334 U.S. 266, 291, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356. At all events we wish it clearly understood that the standard here put forth depends on the considered choice of the petitioner.44 Cf. Carnley v. Cochran, 369 U.S. 506, 513 517, 82 S.Ct. 884, 888—891, 8 L.Ed.2d 70; Moore v. Michigan, 355 U.S. 155, 162—165, 78 S.Ct. 191, 195—197, 2 L.Ed.2d 167. A choice made by counsel not participated in by the petitioner does not automatically bar relief. Nor does a state court's finding of waiver bar independent determination of the question by the federal courts on habeas, for waiver affecting federal rights is a federal question. E.g., Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367.
60
The application of the standard we have adumbrated to the facts of the instant case is not difficult. Under no reasonable view can the State's version of Noia's reason for not appealing support an inference of deliberate by-passing of the state court system. For Noia to have appealed in 1942 would have been to run a substantial risk of electrocution. His was the grisly choice whether to sit content with life imprisonment or to travel the uncertain avenue of appeal which, if successful, might well have led to a retrial and death sentence. See, e.g., Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. He declined to play Russian roulette in this fashion. This was a choice by Noia not to appeal, but under the circumstances it cannot realistically be deemed a merely tactical or strategic litigation step, or in any way a deliberate circumvention of state procedures. This is not to say that in every case where a heavier penalty, even the death penalty, is a risk incurred by taking an appeal or otherwise foregoing a procedural right, waiver as we have defined it cannot be found. Each case must stand on its facts. In the instant case, the language of the judge in sentencing Noia, see note 3, supra, made the risk that Noia, if reconvicted, would be sentenced to death, palpable and indeed unusually acute.
VI.
61
It should be unnecessary to repeat what so often has been said and what so plainly is the case: that the availability of the Great Writ of habeas corpus in the federal courts for persons in the custody of the States offends no legitimate state interest in the enforcement of criminal justice or procedure. Our decision today swings open no prison gates. Today as always few indeed is the number of state prisoners who eventually win their freedom by means of federal habeas corpus.45 Those few who are ultimately successful are persons whom society has grievously wronged and for whom belated liberation is little enough compensation. Surely no fair-minded person will contend that those who have been deprived of their liberty without due process of law ought nevertheless to languish in prison. Noia, no less than his codefendants Caminito and Bonino, is conceded to have been the victim of unconstitutional state action. Noia's case stands on its own; but surely no just and humane legal system can tolerate a result whereby a Caminito and a Bonino are at liberty because their confessions were found to have been coerced yet a Noia, whose confession was also coerced, remains in jail for life. For such anomalies, such affronts to the conscience of a civilized society, habeas corpus is predestined by its historical role in the struggle for personal liberty to be the ultimate remedy. If the States withhold effective remedy, the federal courts have the power and the duty to provide it. Habeas corpus is one of the precious heritages of Anglo-American civilization. We do no more today than confirm its continuing efficacy.
62
Affirmed.
APPENDIX TO OPINION OF THE COURT.
63
The Judiciary Act of February 5, 1867, c. 28, § 1, 14 Stat. 385—386:
64
'* * * (T)he several courts of the United States, and the several justices and judges of such courts, within their respective jurisdictions, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States; and it shall be lawful for such person so restrained of his or her liberty to apply to either of said justices or judges for a writ of habeas corpus, which application shall be in writing and verified by affidavit, and shall set forth the facts concerning the detention of the party applying, in whose custody he or she is detained, and by virtue of what claim or authority, if known; and the said justice or judge to whom such application shall be made shall forthwith award a writ of habeas corpus, unless it shall appear from the petition itself that the party is not deprived of his or her liberty in contravention of the constitution or laws of the United States. Said writ shall be directed to the person in whose custody the party is detained, who shall make return of said writ and bring the party before the judge who granted the writ, and certify the true cause of the detention of such person within three days thereafter, unless such person be detained beyond the distance of twenty miles; and if beyond the distance of twenty miles and not above one hundred miles, then within ten days; and if beyond the distance of one hundred miles, then within twenty days. And upon the return of the writ of habeas corpus a day shall be set for the hearing of the cause, not exceeding five days thereafter, unless the party petitioning shall request a longer time. The petitioner may deny any of the material facts set forth in the return, or may allege any fact to show that the detention is in contravention of the constitution or laws of the United States, which allegations or denials shall be made on oath. The said return may be amended by leave of the court or judge before or after the same is filed, as also may all suggestions made against it, that thereby the material facts may be ascertained. The said court or judge shall proceed in a summary way to determine the facts of the case, by hearing testimony and the arguments of the parties interested, and if it shall appear that the petitioner is deprived of his or her liberty in contravention of the constitution or laws of the United States, he or she shall forthwith be discharged and set at liberty. And if any person or persons to whom such writ of habeas corpus may be directed shall refuse to obey the same, or shall neglect or refuse to make return, or shall make a false return thereto, in addition to the remedies already given by law, he or they shall be deemed and taken to be guilty of a misdemeanor, and shall, on conviction before any court of competent jurisdiction, be punished by fine not exceeding one thousand dollars, and by imprisonment not exceeding one year, or by either, according to the nature and aggravation of the case. From the final decision of any judge, justice, or court, inferior to the circuit court, an appeal may be taken to the circuit court of the United States for the district in which said cause is heard, and from the judgment of said circuit court to the Supreme Court of the United States, on such terms and under such regulations and orders, as well for the custody and appearance of the person alleged to be restrained of his or her liberty, as for sending up to the appellate tribunal a transcript of the petition, writ of habeas corpus, return thereto, and other proceedings, as may be prescribed by the Supreme Court, or, in default of such, as the judge hearing said cause may prescribe; and pending such proceedings or appeal, and until final judgment be rendered therein, and after final judgment of discharge in the same, any proceeding against such person so alleged to be restrained of his or her liberty in any State court, or by or under the authority of any State, for any matter or thing so heard and determined, or in process of being heard and determined, under and by virtue of such writ of habeas corpus, shall be deemed null and void.' 28 U.S.C. § 2241:
65
'(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. * * *
66
'(c) The writ of habeas corpus shall not extend to a prisoner unless—
67
'(3) He is in custody in violation of the Constitution or laws or treaties of the United States * * *.'
28 U.S.C. § 2243:
68
'A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.
69
'The writ, or order to show cause shall be directed to the person having custody of the person detained. It shall be returned within three days unless for good cause additional time, not exceeding twenty days, is allowed.
70
'The person to whom the writ or order is directed shall make a return certifying the true cause of the detention.
71
'When the writ or order is returned a day shall be set for hearing, not more than five days after the return unless for good cause additional time is allowed.
72
'Unless the application for the writ and the return present only issues of law the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained.
73
'The applicant or the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts.
74
'The return and all suggestions made against it may be amended by leave of court, before or after being filed.
75
'The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.'
76
Mr. Justice CLARK, dissenting.
77
I agree fully with and join the opinion of my Brother HARLAN. Beyond question the federal courts until today have had no power to release a prisoner in respondent Noia's predicament, there being no basis for such power in either the Constitution or the statute. But the Court today in releasing Noia makes an 'abrupt break' not only with the Constitution and the statute but also with its past decisions, disrupting the delicate balance of federalism so foremost in the minds of the Founding Fathers and so uniquely important in the field of law enforcement. The short of it is that Noia's incarceration rests entirely on an adequate and independent state ground—namely, that he knowingly failed to perfect any appeal from his conviction of murder. While it may be that the Court's 'decision today swings open no prison gates,' the Court must admit in all candor that it effectively swings closed the doors of justice in the face of the State, since it certainly cannot prove its case 20 years after the fact. In view of this unfortunate turn of events, it appears important that we canvass the consequences of today's action on state law enforcement.
78
First, there can be no question but that a rash of new applications from state prisoners will pour into the federal courts, and 98% of them will be frivolous, if history is any guide.1 This influx will necessarily have an adverse effect upon the disposition of meritorious applications, for, as my Brother Jackson said, they will 'be buried in a flood of worthless ones. He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search.' Brown v. Allen, 344 U.S. 443, 537, 73 S.Ct. 397, 425, 97 L.Ed. 469 (1953) (concurring opinion). In fact, the courts are already swamped with applications which cannot, because of sheer numbers, be given more than cursory attention.2
79
Second, the effective administration of criminal justice in state courts receives a staggering blow. Habeas corpus is in effect substituted for appeal, seriously disturbing the orderly disposition of state prosecutions and jeopardizing the finality of state convictions in disregard of the States' comprehensive procedural safeguards which, until today, have been respected by the federal courts. Essential to the administration of justice is the prompt enforcement of judicial decrees. After today state judgments will be relegated to a judicial limbo, subject to federal collateral attack—as here—a score of years later despite a defendant's willful failure to appeal.
80
The rights of the States to develop and enforce their own judicial procedures, consistent with the Fourteenth Amendment, have long been recognized as essential to the concept of a healthy federalism. Those rights are today attenuated if not obliterated in the name of a victory for the 'struggle for personal liberty.' But the Constitution comprehends another struggle of equal importance and places upon our shoulders the burden of maintaining it—the struggle for law and order. I regret that the Court does not often recognize that each defeat in that struggle chips away inexorably at the base of that very personal liberty which it seeks to protect. One is reminded of the exclamation of Pyrrhus: 'One more such victory * * *, and we are utterly undone.'
81
These considerations have been of great concern to the Judicial Conference of the United States, which has frequently sought to have Congress repair the judicial loopholes in federal habeas corpus for state prisoners.3 Likewise, the Conference of Chief Justices at its annual meeting has officially registered its dismay,4 as has the National Association of Attorneys General.5 Proposed legislation sponsored by one or more of these groups has passed in the House in three separate sessions, but inaction by the Senate caused each bill to die on the vine.6 Those proposals apparently were sparked by our decision in Brown v. Allen, supra,7 but the Court today goes far beyond that decision by negating its companion case, Daniels v. Allen, 344 U.S. 443, 482—487, 73 S.Ct. 397, 422, 97 L.Ed. 469 (1953). While I have heretofore opposed such legislation, I must now admit that it may be the only alternative in restoring the writ of habeas corpus to its proper place in the judicial system. That place is one of great importance—a remedy against illegal restraint—but it is not a substitute for or an alternative to appeal, nor is it a burial ground for valid state procedures.
82
Mr. Justice HARLAN, whom Mr. Justice CLARK and Mr. Justice STEWART join, dissenting.
83
This decision, both in its abrupt break with the past and in its consequences for the future, is one of the most disquieting that the Court has rendered in a long time.
84
Section 2241 of the Judicial Code, 28 U.S.C. § 2241, entitled 'Power to grant writ,' which is part of the federal habeas corpus statute, provides among other things:
85
'(c) The writ of habeas corpus shall not extend to a prisoner unless—
86
'(3) He is in custody in violation of the Constitution or laws or treaties of the United States.'
87
I dissent from the Court's opinion and judgment for the reason that the federal courts have no power, statutory or constitutional, to release the respondent Noia from state detention. This is because his custody by New York does not violate any federal right, since it is pursuant to a conviction whose validity rests upon an adequate and independent state ground which the federal courts are required to respect.
88
A full exposition of the matter is necessary, and I believe it will justify the statement that in what it does today the Court has turned its back on history and struck a heavy blow at the foundations of our federal system.
I.
DEPARTURE FROM HISTORY
89
The history of federal habeas corpus jurisdiction, I believe, leaves no doubt that today's decision constitutes a square rejection of long-accepted principles governing the nature and scope of the Great Writ.1
90
Habeas corpus ad subjiciendum is today, as it has always been, a fundamental safeguard against unlawful custody. The importance of this prerogative writ, requiring the body of a person restrained of liberty to be brought before the court so that the lawfulness of the restraint may be determined, was recognized in the Constitution,2 and the first Judiciary Act gave the federal courts authority to issue the writ 'agreeable to the principles and usages of law.'3 Although the wording of earlier statutory provisions has been changed, the basic question before the court to which the writ is addressed has always been the same: in the language of the present statute, on the books since 1867, is the detention complained of 'in violation of the Constitution or laws or treaties of the United States'? Supra, p. 448.
91
Detention can occur in many contexts, and in each the scope of judicial inquiry will differ. Thus a child may be detained by a parent, an alien excluded by an immigration official, or a citizen arrested by a policeman and held without being brought to a magistrate. But the custody with which we are here concerned is that resulting from a judgment of criminal conviction and sentence by a court of law. And the question before us is the circumstances under which that custody may be held to be inconsistent with the commands of the Federal Constitution. What does history show?
92
1. Pre-1915 period.—The formative stage of the development of habeas corpus jurisdiction may be said to have ended in 1915, the year in which Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969, was decided. During this period the federal courts, on applications for habeas corpus complaining of detention pursuant to a judgment of conviction and sentence, purported to examine only the jurisdiction of the sentencing tribunal. In the leading case of Ex parte Watkins, 3 Pet. 193, 7 L.Ed. 650, the Court stated:
93
'An imprisonment under a judgment cannot be unlawful, unless that judgment be an absolute nullity; and it is not a nullity if the court has general jurisdiction of the subject, although it should be erroneous.' 3 Pet., at 203.
94
Many subsequent decisions, dealing with both state and federal prisoners, and involving both original applications to this Court for habeas corpus and review of lower court decisions, reaffirmed the limitation of the writ to consideration of the sentencing court's jurisdiction over the person of the defendant and the subject matter of the suit. E.g., Ex parte Parks, 93 U.S. 18, 23 L.Ed. 787; Andrews v. Swartz, 156 U.S. 272, 15 S.Ct. 389, 39 L.Ed. 422; In re Belt, 159 U.S. 95, 15 S.Ct. 987, 40 L.Ed. 88; In re Moran, 203 U.S. 96, 27 S.Ct. 25, 51 L.Ed. 105.
95
The concept of jurisdiction, however, was subjected to considerable strain during this period, and the strain was not lessened by the fact that until the latter part of the last century, federal criminal convictions were not generally reviewable by the Supreme Court.4 The expansion of the definition of jurisdiction occurred primarily in two classes of cases: (1) those in which the conviction was for violation of an allegedly unconstitutional statute, and (2) those in which the Court viewed the detention as based on some claimed illegality in the sentence imposed, as distinguished from the judgment of conviction. An example of the former is Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 in which the Court considered on its merits the claim that the acts under which the indictments were found were unconstitutional, reasoning that '(a)n unconstitutional law is void, and is as no law,' and therefore 'if the laws are unconstitutional and void, the Circuit Court acquired no jurisdiction of the causes.' 100 U.S., at 376—377.5 An example of the latter is Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872, in which this Court held that if a valid sentence had been carried out, and if the governing statute permitted only one sentence, the sentencing judge lacked jurisdiction to impose further punishment:
96
'(W)hen the prisoner * * * by reason of a valid judgment, had fully suffered one of the alternative punishments to which alone the law subjected him, the power of the court to punish further was gone.' 18 Wall., at 176.6
97
It was also during this period that Congress, in 1867, first made habeas corpus available by statute to prisoners held under state authority. Act of February 5, 1867, c. 28, § 1, 14 Stat. 385. In this 1867 Act the Court now seems to find justification for today's decision, relying on the statement of one of its proponents that the bill was 'coextensive with all the powers that can be conferred' on the courts and judges of the United States. Cong.Globe, 39th Cong., 1st Sess. 4151. But neither the statute itself, its legislative history, nor its subsequent interpretation lends any support to the view that habeas corpus jurisdiction since 1867 has been exercisable whether or not the state detention complained of rested on decision of a federal question.
98
First, there is nothing in the language of the Act—which spoke of the availability of the writ to prisoners 'restrained of * * * liberty in violation of the constitution * * *'—to suggest that there was any change in the nature of the writ as applied to one held pursuant to a judgment of conviction. The language was that typically employed in habeas corpus cases, and, as we have seen, it was not believed that a person so held was restrained in violation of law if the sentencing court had personal and subject matter jurisdiction. Rather, the change accomplished by the language of the Act related to the classes of prisoners (in particular, state as well as federal) for whom the writ would be available.
99
Second, what little legislative history there is does not suggest any change in the nature of the writ. The extremely brief debates indicated only a lack of understanding as to what the Act would accomplish, coupled with an effort by the proponents to make it clear that the purpose was to extend the availability of the writ to persons not then covered; there was no indication of any intent to alter its substantive scope.7 Thus, less than 20 years after enactment, a congressional committee could say of the 1867 Act that it was not 'contemplated by its framers or * * * properly * * * construed to authorize the overthrow of the final judgments of the State courts of general jurisdiction, by the inferior Federal judges * * *.'8
100
Third, cases decided under the Act during this period made it clear that the Court did not regard the Act as changing the character of the writ. In considering the lawfulness of the detention of state prisoners, the Court continued to confine itself to questions it regarded as 'jurisdictional.' See, e.g., In re Rahrer, 140 U.S. 545, 11 S.Ct. 865, 35 L.Ed. 572; Harkrader v. Wadley, 172 U.S. 148, 19 S.Ct. 119, 43 L.Ed. 399; Pettibone v. Nichols, 203 U.S. 192, 27 S.Ct. 111, 51 L.Ed. 148. And the Court repeatedly held that habeas corpus was not available to a state prisoner to consider errors, even constitutional errors, that did not go to the jurisdiction of the sentencing court. E.g., In re Wood, 140 U.S. 278, 11 S.Ct. 738, 35 L.Ed. 505; Andrews v. Swartz, 156 U.S. 272, 15 S.Ct. 389, 39 L.Ed. 422; Bergemann v. Backer, 157 U.S. 655, 15 S.Ct. 727, 39 L.Ed. 845.
101
At the same time, in dealing with applications by state prisoners the Court developed the doctrine of exhaustion of state remedies, a doctrine now embodied in 28 U.S.C. § 2254. In Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868, the prisoner had brought federal habeas corpus seeking release from his detention pending a state prosecution, and alleging that the statute under which he was to be tried was void under the Contract Clause. The power of the federal court to act in this case, if the allegations could be established, was clear since under accepted principles the State would have lacked 'jurisdiction' to detain the prisoner. But the Court observed that the question of constitutionality would be open to the prisoner at his state trial and, absent any showing of urgency, considerations of comity counseled the exercise of discretion to withhold the writ at this early stage. In subsequent decisions, the Court continued to insist that state remedies be exhausted, even when the applicant alleged a lack of jurisdiction in state authorities which, if true, would have enabled the federal court to act on the application immediately. E.g., Ex parte Fonda, 117 U.S. 516, 6 S.Ct. 848, 29 L.Ed. 994; Cook v. Hart, 146 U.S. 183, 13 S.Ct. 40, 36 L.Ed. 934; New York v. Eno, 155 U.S. 89, 15 S.Ct. 30, 39 L.Ed. 80. As stated in Cook v. Hart, 146 U.S., at 195, 13 S.Ct., at 44, 'The party charged waives no defect of jurisdiction by submitting to a trial of his case upon the merits * * *. Should (his) rights be denied, his remedy in the federal court will remain unimpaired.' (Emphasis added.) The question whether the Constitution deprived the State of jurisdiction, in other words, would remain open under traditional doctrine, on collateral as well as direct attack.
102
There can be no doubt of the limited scope of habeas corpus during this formative period, and of the consistent efforts to confine the writ to questions of jurisdiction. But the cardinal point for present purposes is that in no case was it held, or even suggested, that habeas corpus would be available to consider any claims by a prisoner held pursuant to a state court judgment whose validity rested on an adequate nonfederal ground. Indeed, so long as the writ was confined to claims by state prisoners that the State was constitutionally precluded from exercising its jurisdiction in the particular case, it is difficult to conceive of a decision to detain in such cases resting on an adequate state ground. Even when the concept of jurisdiction was expanded, as in Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717, and other decisions, the matters open on habeas were still limited to those which were believed to have deprived the sentencing court of all competence to act, and which therefore could always be raised on collateral attack. It is for this reason that the Royall line of 'exhaustion' cases, relied on so heavily by the Court, has no real bearing on the problem before us. For those cases dealt only with the discretion of the court to take action which, if the allegations of lack of state jurisdiction were upheld, it would have had power to take either before or after state consideration. The issue here, on the other hand, is one of power, and wholly different considerations are involved.
103
In those few instances during this early period when the Court discussed questions it did not regard as jurisdictional, it occasionally went so far as to suggest that a constitutional claim could not be raised on habeas even if the state decision to detain rested on an inadequate state ground—that the only avenue of relief was direct review. Thus in Andrews v. Swartz, 156 U.S. 272, 15 S.Ct. 389, 39 L.Ed. 422, where the claim made on federal habeas was the systematic exclusion of Negroes from a state jury, the Court held it 'a sufficient answer to this contention that the state court had jurisdiction both of the offence charged and of the accused.' Id., at 276, 15 S.Ct., at 391. It continued:
104
'Even if it be assumed that the state court improperly denied to the accused * * * the right to show by proof that persons of his race were arbitrarily excluded * * * it would not follow that the court lost jurisdiction of the case within the meaning of the well-established rule that a prisoner under conviction and sentence of another court will not be discharged on habeas corpus unless the court that passed the sentence was so far without jurisdiction that its proceedings must be regarded as void.' Ibid.
105
2. 1915—1953 period.—The next stage of development may be described as beginning in 1915 with Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969, and ending in 1953 with Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469. In Frank, the prisoner had claimed before the state courts that the proceedings in which he had been convicted for murder had been dominated by a mob, and the State Supreme Court, after consideration not only of the record but of extensive affidavits, had concluded that mob domination had not been established.9 Frank then sought federal habeas, and this Court affirmed the denial of relief. But in doing so the Court recognized that Frank's allegation of mob domination raised a constitutional question which he was entitled to have considered by a competent tribunal uncoerced by popular pressures. Such 'corrective process' had been afforded by the State Supreme Court, however, and since Frank had received 'notice and a hearing, or an opportunity to be heard' on his constitutional claims (237 U.S., at 326, 35 S.Ct., at 586, 59 L.Ed. 969), his detention was not in violation of federal law and habeas corpus would not lie.
106
It is clear that a new dimension was added to habeas corpus in this case, for in addition to questions previously thought of as 'jurisdictional,' the federal courts were now to consider whether the applicant had been given an adequate opportunity to raise his constitutional claims before the state courts. And if no such opportunity had been afforded in the state courts, the federal claim would be heard on its merits. The Court thus rejected the views expressed in Andrews v. Swartz, supra, 372 U.S., p. 455, 83 S.Ct., p. 857, by holding, in effect, that a constitutional claim could be heard on habeas if the State's refusal to give it proper consideration rested on an inadequate state ground. But habeas would not lie to reconsider constitutional questions that had been fairly determined. And a fortiori it would not lie to consider a question when the state court's refusal to do so rested on an adequate and independent state ground.
107
In this connection, it is important to note the section of the opinion relating to Frank's separate constitutional claim that his involuntary absence from the courtroom at the time the verdict was rendered invalidated the conviction. Frank had failed to raise this point in his motion for a new trial; the state court held that it had been 'waived'; and this Court decided that the state rule barring assertion of the point after failure to raise it in a motion for new trial was reasonable and did not violate due process.10 Clearly, the significance of the Court's ruling was that as to this constitutional claim, whatever its merits if the point had been properly preserved, there was an adequate nonfederal ground for the detention.
108
In no case prior to Brown v. Allen, I submit, was there any substantial modification of the concepts articulated in the Frank decision. In Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543, this Court did require a hearing on federal habeas of a claim similar to that in Frank, of mob domination of the trial, even though the state appellate court had purported to pass on the claim, but only by refusing to 'assume that the trial was an empty ceremony.'11 The decision of this Court is sufficiently ambiguous that it seems to have meant all things to all men.12 But I suggest that the decision cannot be taken to have overruled Frank; it did not purport to do so, and indeed it was joined by two Justices who had joined in the Frank opinion. Rather, what the Court appears to have held was that the state appellate court's perfunctory treatment of the question of mob domination, amounting to nothing more than reliance on the presumptive validity of the trial, was not in fact acceptable corrective process and federal habeas would therefore lie to consider the merits of the claim. Until today, the Court has consistently so interpreted the opinion, as in Ex parte Hawk, 321 U.S. 114, 118, 64 S.Ct. 448, 450, 88 L.Ed. 572, where Moore was cited as an example of a case in which 'the remedy afforded by state law proves in practice unavailable or seriously inadequate.' See also Jennings v. Illinois, 342 U.S. 104, 111, 72 S.Ct. 123, 127, 96 L.Ed. 119.
109
Certainly, there is no basis in the Moore opinion, whatever it may fairly be taken to mean, for concluding that the Court required consideration on federal habeas of a question which the state court had had an adequate state ground for refusing to consider. The claim of mob domination was considered, although apparently inadequately, by the state court, and it was only on this premise that the claim was required t be heard on habeas.
110
Subsequent decisions involving state prisoners continued to indicate that the controlling question on federal habeas—apart from matters going to lack of state jurisdiction in light of federal law—was whether or not the State had afforded adequate opportunity to raise the federal claim. If not, the federal claim could be considered on its merits. See, e.g., Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791; White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348; Woods v. Nierstheimer, 328 U.S. 211, 66 S.Ct. 996, 90 L.Ed. 1177; cf. Jennings v. Illinois, 342 U.S. 104, 72 S.Ct. 123, 96 L.Ed. 119.13
111
A development paralleling that in Frank v. Mangum took place during this period with regard to federal prisoners. The writ remained unavailable to consider questions that were or could have been raised in the original proceedings, or on direct appeal, see Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982, but it was employed to permit consideration of constitutional questions that could not otherwise have been adequately presented to the courts. E.g., Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 S.Ct. 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. This limited scope of habeas corpus, and its statutory substitute 28 U.S.C. § 2255, in relation to federal prisoners may have survived Brown v. Allen and may still survive today. See, e.g., Franano v. United States, 8 Cir., 303 F.2d 470, cert. denied, 371 U.S. 865, 83 S.Ct. 125, 9 L.Ed.2d 102. Compare Jordan v. United States, 352 U.S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114.
112
To recapitulate, then, prior to Brown v. Allen, habeas corpus would not lie for a prisoner who was in custody pursuant to a state judgment of conviction by a court of competent jurisdiction if he had been given an adequate opportunity to obtain full and fair consideration of his federal claim in the state courts. Clearly, under this approach, a detention was not in violation of federal law if the validity of the state conviction on which that detention was based rested on an adequate nonfederal ground.
113
3. Post-1953, Brown v. Allen, period.—In 1953, this Court rendered its landmark decisions in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, and Daniels v. Allen, reported therewith, 344 U.S., at 482—487, 73 S.Ct., at 420—422.14 Both cases involved applications for federal habeas corpus by prisoners who were awaiting execution pursuant to state convictions. In both cases, the constitutional contentions made were that the trial court had erred in ruling confessions admissible and in overruling motions to quash the indictment on the basis of alleged discrimination in the selection of jurors.
114
In Brown, these contentions had been presented to the highest court of the State, on direct appeal from the conviction, and had been rejected by that court on the merits, State v. Brown, 233 N.C. 202, 63 S.E.2d 99, after which this Court had denied certiorari, 341 U.S. 943, 71 S.Ct. 997, 95 L.Ed. 1369. At this point, the Court held, Brown was entitled to full reconsideration of these constitutional claims, with a hearing if appropriate, in an application to a Federal District Court for habeas corpus.
115
It is manifest that this decision substantially expanded the scope of inquiry on an application for federal habeas corpus.15 Frank v. Mangum and Moore v. Dempsey had denied that the federal courts in habeas corpus sat to determine whether errors of law, even constitutional law, had been made in the original trial and appellate proceedings. Under the decision in Brown, if a petitioner could show that the validity of a state decision to detain rested on a determination of a constitutional claim, and if he alleged that determination to be erroneous, the federal court had the right and the duty to satisfy itself of the correctness of the state decision.
116
But what if the validity of the state decision to detain rested not on the determination of a federal claim but rather on an adequate nonfederal ground which would have barred direct review by this Court? That was the questionin Daniels. The attorney for the petitioners in that case had failed to mail the appeal papers on the last day for filing, and although he delivered them by hand the next day, the State Supreme Court refused to entertain the appeal, ruling that it had not been filed on time. This ruling, this Court held, barred federal habeas corpus consideration of the claims that the state appellate court had refused to consider. Language in Mr. Justice Reed's opinion for the Court appeared to support the result alternatively in terms of waiver,16 failure to exhaust state remedies,17 and the existence of an adequate state ground.18 But while the explanation may have been ambiguous, the result was clear: habeas corpus would not lie for a prisoner who was detained pursuant to a state judgment which, in the view of the majority in Daniels, rested on a reasonable application of the State's own procedural requirements. Moreover, the issue was plainly viewed as one of authority, not of discretion. 344 U.S., at 485, 73 S.Ct., at 421, 97 L.Ed. 469.
117
I do not pause to reconsider here the question whether the state ground in Daniels was an adequate one; persuasive arguments can be made that it was not. The important point for present purposes is that the approach in Daniels was wholly consistent with established principles in the field of habeas corpus jurisdiction. The problem, however, had been brought into sharper focus by the result in Brown. Once it is made clear that the questions open on federal habeas extend to such matters as the admissibility of confessions, or of other evidence, the possibility that inquiry may be precluded by the existence of a state ground adequate to support the judgment is substantially increased.
118
Issues similar to those in Daniels next came before the Court in Irvin v. Dowd, 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d 900. In that case, the state court's decision affirming Irvin's conviction for murder was ambiguous and it could have been interpreted to rest on a state ground even though Irvin's federal constitutional claims were considered. Irvin v. State, 236 Ind. 384, 139 N.E.2d 898; see also the dissenting opinion of this writer in Irvin v. Dowd, supra, 359 U.S. 412, 79 S.Ct. 835, 3 L.Ed.2d 900. This Court, in reversing a dismissal of an application for federal habeas corpus, concluded that the state court decision had rested on determination of Irvin's federal claims, and held that those claims could therefore be considered on federal habeas. The majority appeared to approach the problem as one of exhaustion,19 but the basic determination was that the state court judgment, pursuant to which Irvin was detained, did not rest on an application of the State's procedural rules.
119
This brings us to the present case. There can, I think, be no doubt that today's holding—that federal habeas will lie despite the existence of an adequate and independent nonfederal ground for the judgment pursuant to which the applicant is detained—is wholly unprecedented. Indeed, it constitutes a direct rejection of authority that is squarely to the contrary. That the result now reached is a novel one does not, of course, mean that it is necessarily incorrect or unwise. But a decision which finds virtually no support in more than a century of this Court's experience should certainly be subject to the most careful scrutiny.
II.
CONSTITUTIONAL BARRIER
120
The true significance of today's decision can perhaps best be laid bare in terms of a hypothetical case presenting questions of the powers of this Court on direct review, and of a Federal District Court on habeas corpus.
121
1. On direct review.—Assume that a man is indicted, and held for trial in a state court, by a grand jury from which members of his race have been systematically excluded. Assume further that the State requires any objection to the composition of the grand jury to be raised prior to the verdict, that no such objection is made, and that the defendant seeks to raise the point for the first time on appeal from his conviction. If the state appellate court refuses to consider the claim because it was raised too late, and if certiorari is sought and granted, the initial question before this Court will be whether there was an adequate state ground for the judgment below. If the petitioner was represented by counsel not shown to be incompetent, and if the necessary information to make the objection is not shown to have been unavailable at the time of trial, it is certain that the judgment of conviction will stand, despite the fact the indictment was obtained in violation of the petitioner's constitutional rights.20
122
What is the reason for the rule that an adequate and independent state ground of decision bars Supreme Court review of that decision—a rule which, of course, is as applicable to procedural as to substantive grounds? In Murdock v. Memphis, 20 Wall. 590, 632—636, 22 L.Ed. 429, it was concluded that under the governing statute (i) the Court did not have jurisdiction, on review of a state decision, to examine and decide 'questions not of a Federal character,' id., at 633, and (ii) an erroneous decision of a federal question by a state court could not warrant reversal if there were:
123
'any other matter or issue adjudged by the State court, which is sufficiently broad to maintain the judgment of that court, notwithstanding the error in deciding the issue raised by the Federal question.' Id., at 636.
124
But as the Court in Murdock so strongly implied, and as emphasized in subsequent decisions, the adequate state ground rule has roots far deeper than the statutes governing our jurisdiction, and rests on fundamentals that touch this Court's habeas corpus jurisdiction equally with its direct reviewing power. An examination of the alternatives that might conceivably be followed will, I submit, confirm that the rule is one of constitutional dimensions going to the heart of the division of judicial powers in a federal system.
125
One alternative to the present rule would be for the Court to review and decide any federal questions in the case, even if the determination of nonfederal questions were adequate to sustain the judgment below, and then to send the case back to the state court for further consideration. But it needs no extended analysis to demonstrate that such action would exceed this Court's powers under Article III. As stated in Herb v. Pitcairn, 324 U.S. 117, 126, 65 S.Ct. 459, 463, 89 L.Ed. 789:
126
'(O)ur power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.'
127
Another alternative, which would avoid the problem of advisory opinions, would be to take the entire case and to review on the merits the state court's decision of every question in it. For example, in our hypothetical case the Court might consider on its merits the question whether the state court correctly ruled that under state law objections to the composition of the grand jury must be made prior to the verdict.
128
To a limited extent, of course, this procedural ruling of the state court raises federal as well as state questions. It is clear that a State may not preclude Supreme Court review of federal claims by discriminating against or evading the assertion of a federal right, and indeed that state procedural grounds for refusal to consider a federal claim must rest on a 'fair or substantial basis.'21 Occasionally this means that a state procedural rule which may properly preclude the raising of state claims in a state court cannot thwart review of federal claims in this Court.22 These principles are inherent in the concept that a state ground, to be of sufficient breadth to support the judgment, must be both 'adequate' and 'independent.'
129
But determination of the adequacy and independence of the state ground, I submit, marks the constitutional limit of our power in this sphere. The reason why this is so was perhaps most articulately expressed in a different but closely related context by Mr. Justice Field in his opinion in Baltimore & O.R. Co. v. Baugh, 149 U.S. 368, 401, 13 S.Ct. 914, 37 L.Ed. 772. He stated, in a passage quoted with approval by the Court in the historic decision in Erie R. Co. v. Tompkins, 304 U.S. 64, 78—79, 58 S.Ct. 817, 822, 82 L.Ed. 1188:
130
'(T)he constitution of the United States * * * recognizes and preserves the autonomy and independence of the states, independence in their legislative and independence in their judicial departments. Supervision over either the legislative or the judicial action of the states is in no case permissible except as to matters by the constitution specifically authorized or delegated to the United States. Any interference with either, except as thus permitted, is an invasion of the authority of the state, and, to that extent, a denial of its independence.'
131
For this Court to go beyond the adequacy of the state ground and to review and determine the correctness of that ground on its merits would, in our hypothetical cae, be to assume full control over a State's procedures for the administration of its own criminal justice. This is and must be beyond our power if the federal system is to exist in substance as well as form. The right of the State to regulate its own procedures governing the conduct of litigants in its courts, and its interest in supervision of those procedures, stand on the same constitutional plane as its right and interest in framing 'substantive' laws governing other aspects of the conduct of those within its borders.
132
There is still a third possible course this Court might follow if it were to reject the adequate state ground rule. The Act of 1867, which in § 1 extended the habeas corpus jurisdiction to state prisoners detained in violation of federal law, in § 2 gave the Supreme Court the authority, in cases coming from the state courts, to order execution directly without remanding the case. 14 Stat. 385, 386—387. That authority, which has been exercised at least once,23 remained unimpaired through the modifications of appellate and certiorari jurisdiction,24 and exists today.25 Acting pursuant to that authority in our hypothetical case, this Court might grant certiorari, 'ignore' the state ground of decision, decide the federal question and, instead of merely remanding the case, issue a writ requiring the petitioner's release from custody. By this simple device, the Court, it might be argued, would avoid problems of advisory opinions while at the same time refraining from consideration of questions of state law.
133
But apart from the unseemliness of such a dispoition, it is apparent that what the Court would actually be doing would be to decide the state law question sub silentio and to reverse the state court judgment on that question. For if the petitioner is detained pursuant to the judgment, and his detention is to be terminated, that must mean that the state ground is not adequate to support the only purpose for which the judgment was rendered. The judgment, in other words, becomes a nullity.
134
Moreover, the future effect of such a disposition is precisely the same as a reversal on the merits of the question of state law. If noncompliance with a state rule requiring a particular constitutional claim to be raised before verdict does not preclude consideration of the claim by this Court, then the rule is invalid in every significant sense, since no judgment based on its application can ever be effective.
135
In short, the constitutional infirmities of such a disposition by this Court are the same as those inherent in review of the state question on its merits. The vice, however, is greater because the Court would, in actuality, be invalidating a state rule without even purporting to consider it.
136
2. On habeas corpus.—The adequate state ground doctrine thus finds its source in basic constitutional principles, and the question before us is whether this is as true in a collateral attack in habeas corpus as on direct review. Assume, then, that after dismissal of the writ of certiorari in our hypothetical case, the prisoner seeks habeas corpus in a Federal District Court, again complaining of the composition of the grand jury that indicted him. Is that federal court constitutionally more free than the Supreme Court on direct review to 'ignore' the adequate state ground, proceed to the federal question, and order the prisoner's release?
137
The answer must be that it is not. Of course, as the majority states, a judgment is not a 'jurisdictional prerequisite' to a habeas corpus application, ante, p. 430 but that is wholly irrelevant. The point is that if the applicant is detained pursuant to a judgment, termination of the detention necessarily nullifies the judgment. The fact that a District Court on habeas has fewer choices than the Supreme Court, since it can only act on the body of the prisoner, does not alter the significance of the exercise of its power. In habeas as on direct review, ordering the prisoner's release invalidates the judgment of conviction and renders ineffective the state rule relied upon to sustain that judgment. Try as the majority does to turn habeas corpus into a roving commission of inquiry into every possible invasion of the applicant's civil rights that may ever have occurred, it cannot divorce the writ from a judgment of conviction if that judgment is the basis of the detention.
138
Thus in the present case if this Court had granted certiorari to review the State's denial of coram nobis, had considered the coerced confession claim, and had ordered Noia's release, the necessary effects of that disposition would have been (1) to set aside the conviction and (2) to invalidate application of the New York rule requiring the claim to be raised on direct appeal in order to be preserved. It is, I think, beyond dispute that the Court does exactly the same thing by affirming the decision below in this case. In doing so, the Court exceeds its constitutional power if in fact the state ground relied upon to sustain the judgment of conviction is an adequate one. See pp. 472—476, infra. The effect of of the approach adopted by the Court is, indeed, to do away with the adequate state ground rule entirely in every state case, involving a federal question, in which detention follows from a judgment.
139
The majority seems to recognize at least some of the consequences of its decision when it attempts to fill the void created by abolition of the adequate state ground rule in state criminal cases. But the substitute it has fashioned—that of 'conscious waiver' or 'deliberate bypassing' of state procedures is, as I shall next try to show, wholly unsatisfactory.
III.
140
ATTEMPTED PALLIATIVES.
141
Apparently on the basis of a doctrine analogous to that of 'unclean hands,' the Court states that a federal judge, in his discretion, may deny relief on habeas corpus to one who has understandingly and knowingly refused to avail himself of state procedures. But such a test, if it is meant to constitute a limitation on interference with state administration of criminal justice, falls far short of the mark. In fact, as explained and applied in this case, it amounts to no limitation at all.
142
First, the Court explains that the test is one calling for the exercise of the district judge's discretion, that the judge may, in other words, grant relief even when a conscious waiver has been shown. Thus the Court does not merely tell the States that, if they wish to detain those whom they convict, they must revamp their entire systems of criminal procedures so that no forfeiture may be imposed in the absence of deliberate choice; the States are also warned that even a deliberate, explicit, intelligent choice not to assert a constitutional right may not preclude its assertion on federal habeas.
143
Second, the Court states (as it must if it is to adhere to its definition) that '(a) choice made by counsel not participated in by the petitioner does not automatically bar relief.' Ante, p. 439. It is true that there are cases in which the adequacy of the state ground necessarily turns on the question whether the defendant himself expressly and intelligently waived a constitutional right. Foremost among these are the cases involving right to counsel, for the Court has made it clear that this right cannot be foregone without deliberate choice by the defendant. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. But to carry this principle over in full force to cases in which a defendant is represented by counsel not shown to be incompetent is to undermine the entire representational system. We have manifested an ever-increasing awareness of the fundamental importance of representation by counsel, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, and yet today the Court suggests that the State may no more have a rule of forfeiture for one who is competently represented than for one who is not. The effect on state procedural rules may be disastrous.
144
Third, when it comes to apply the 'waiver' test in this case, the Court then in effect reads its own creation out of existence. Recognizing that Noia himself decided not to appeal, and that he apparently made this choice after consultation with counsel, the Court states that his decision was nevertheless not a 'waiver.' Since a new trial might have resulted in a death sentence, Noia was, in the majority's view, confronted with a 'grisly choice,' and he quite properly declined to play 'Russian roulette' by appealing his conviction. Ante, pp. 439—440.
145
Does the Court mean by these colorful phrases that it would be unconstitutional for the State to impose a heavier sentence in a second trial for the same offense? Apparently not, since the majority assures us that there may be some cases in which a risk of a heavier sentence must be run. What distinguishes this case, we are told, is that the risk of the death sentence on a new trial was substantial in view of the trial judge's statement that Noia's past record and his involvement in the crime almost led the judge to disregard the jury's recommendation against a death sentence.
146
What the Court seems to be saying in this exercise in fine distinctions is that no waiver of a right can be effective if some adverse consequence might reasonably be expected to follow from exercise of that right. Under this approach, of course, there could never be a binding waiver, since only an incompetent would give up a right without any good reason, and an incompetent cannot make an intelligent waiver. The Court wholly ignores the question whether the choice made by the defendant is one that the State could constitutionally require.
147
Looked at from any angle, the concept of waiver which the Court has created must be found wanting. Of gravest importance, it carries this Court into a sphere in which it has no proper place in the context of the federal system. The true limitations on our constitutional power are those inherent in the rule requiring that a judgment resting on an adequate state ground must be respected.
IV.
148
ADEQUACY OF THE STATE GROUND HERE INVOLVED.
149
It is the adequacy, or fairness, of the state ground that should be the controlling question in this case.26 This controlling question the Court does not discuss.
150
New York asserts that a claim of the kind involved here must be raised on timely appeal if it is to be preserved, and contends that in permitting an appeal it has provided a reasonable opportunity for the claim to be made. The collateral post-conviction writ of coram nobis, the State has said, remains a remedy only for the calling up of facts unknown at the time of the judgment. See People v. Noia, decided sub nom. People v. Caminito, 3 N.Y.2d 596, 601, 170 N.Y.S.2d 799, 804, 148 N.E.2d 139, 143. In other words, the State claims that it may constitutionally detain a man pursuant to a judgment of conviction, regardless of any error that may have led to that conviction, if the relevant facts were reasonably available and an appeal was not taken.
151
Under the circumstances here—particularly the fact that Noia was represented by counsel whose competence is not challenged—is this a reasonable ground for barring collateral assertion of the federal claim? Certainly the State has a vital interest in requiring that appeals be taken on the basis of facts known at the time, since the first assertion of a claim many years later might otherwise require release long after it was feasible to hold a new trial. And although in Daniels v. Allen it might have been argued that the State's refusal to entertain an appeal actually received on time amounted to an evasion of the federal claim. no such argument can be made here, since no appeal was ever sought.
152
Moreover, we should be slow to reject—as an invalid barrier to the raising of a federal right—a state determination that one forum rather than another must be resorted to for the assertion of that right. A far more rigid restriction of federal forums was upheld in Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834. In that case, the Court sustained a federal statute permitting an attack on the validity of an administrative price regulation to be made only on timely review of the administrative order, and precluding the defense of invalidity in a later criminal prosecution for violation of the regulation. What the Court there said bears repetition here:
153
'No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' 321 U.S., at 444, 64 S.Ct., at 677.
154
But is there some special circumstance here that operates to invalidate the nonfederal ground? Certainly it cannot be that the claim of a coerced confession is of such a nature that a State is constitutionally compelled to permit its assertion at any time even if it could have been, but was not, raised on appeal. Many federal decisions have held that a federal prisoner held pursuant to a federal conviction may not assert such a claim in collateral proceedings when it was not, but could have been, asserted on appeal. E.g., Davis v. United States, 7 Cir., 214 F.2d 594, cert. denied, 353 U.S. 960, 77 S.Ct. 870, 1 L.Ed.2d 911; Smith v. United States, 88 U.S.App.D.C. 80, 187 F.2d 192, cert. denied, 341 U.S. 927, 71 S.Ct. 792, 95 L.Ed. 1358; see Hodges v. United States, 108 U.S.App.D.C. 375, 282 F.2d 858, cert. dismissed, 368 U.S. 139, 82 S.Ct. 235, 7 L.Ed.2d 184.
155
Is it then a basis for invalidating the nonfederal ground that Noia's two codefendants are today free from custody on facts which Noia says are identical to those in his case? Does the nonfederal ground fall when the federal claim appears to have obvious merit? There may be some question whether the facts in Noia's case and those in Bonino's and Caminito's are identical,27 but assuming that they are, I think it evident that the nonfederal ground must still stand.
156
Again, there is highly relevant precedent dealing with federal prisoners. In Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982, Sunal and Kulick had been prosecuted for violation of the Selective Service Act, and both had sought to raise a defense the court had refused to consider. Both were convicted and sentenced to imprisonment but took no appeal, quite evidently because such an appeal would have been to no avail under the existing state of the law. Subsequently, in another case, this Court held on comparable facts that the defense in question must be permitted. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567. Sunal and Kulick then sought relief on habeas corpus, and this relief was denied. The opinion of the Court observed that there had been no barrier to the perfection of appeals by these prisoners and no facts which were not then known. That an appeal may have appeared futile at the time (indeed, far more futile than was the case here) was held not a sufficient basis for collateral relief. The present case, I submit, would be less troublesome than Sunal even had it involved a federal prisoner.
157
Surely, the state ground is not rendered inadequate because on a new trial for the same offense, Noia might have received the death sentence. The State is well within constitutional limits in permitting such a sentence to be imposed. Of particular relevance here is the decision in Larson v. United States, 5 Cir., 275 F.2d 673. Two criminal defendants had been tried and sentenced to imprisonment by a federal court. One defendant, Juelich, had moved for a continuance or a change of venue, on the ground of community prejudice, and his motion had been denied. Both defendants were convicted; Juelich appealed from his conviction; and the Court of Appeals reversed, Juelich v. United States, 5 Cir., 214 F.2d 950, holding that the constitutional requirement of a fair trial had been violated by the refusal to grant a change of venue or a continuance. Larson, the other defendant, had chosen not to appeal, apparently because he feared that the death sentence might be imposed in a new trial, but after his codefendant's success, he sought collateral relief under § 2255. That relief was denied by the District Court, and the Court of Appeals affirmed, stating:
158
'We do not say * * * that in every instance, before resort can be had to Section 2255 there must be an appeal. We say only that, in the circumstances of this case, Larson, taking a calculated risk, made a free choice not to jeopardize his life, and he is bound by that decision. * * * Whatever errors there were in his trial were known to Larson and to his counsel—for the same errors formed the basis for Juelich's appeal. Manifest Justice to an accused person requires only that he have an opportunity to correct errors that may have led to an unfair trial. The orderly administration of justice requires that even a criminal case some day come to an end.' 275 F.2d at 679—680.
159
This Court denied certiorari. 363 U.S. 849, 80 S.Ct. 1627, 4 L.Ed.2d 1732.
160
Decisions such as Sunal and Larson are reasoned expressions by the federal judiciary of its views on the fair and proper administration of federal criminal justice. We cannot turn around and tell the State of New York that it is constitutionally prohibited from being governed by the same considerations.
161
I recognize that Noia's predicament may well be thought one that strongly calls for correction. But the proper course to that end lies with the New York Governor's powers of executive clemency, not with the federal courts.28 Since Noia is detained pursuant to a state judgment whose validity rests on an adequate and independent state ground, the judgment below should be reversed.
1
The Appellate Division of the New York Supreme Court and the New York Court of Appeals, on the direct appeals of Caminito and Bonino, affirmed the convictions. People v. Bonino, People v. Caminito, 265 App.Div. 960, 38 N.Y.S.2d 1019 (1942); 291 N.Y. 541, 50 N.E.2d 654 (1943). Certiorari was not sought here. Motions to reargue appeals in the New York Court of Appeals may be made at any time. Caminito filed motions for reargument in 1948 and 1954. The motions were denied. 297 N.Y. 882, 79 N.E.2d 277; 307 N.Y. 686, 120 N.E.2d 857; we denied certiorari from the second denial. 348 U.S. 839, 75 S.Ct. 46, 99 L.Ed. 662. Bonino filed a similar motion in 1947, which was denied, 296 N.Y. 1004, 73 N.E.2d 579. Certiorari was denied. 333 U.S. 849, 68 S.Ct. 654, 92 L.Ed. 1131. Caminito then sought federal habeas corpus in the District Court for the Northern District of New York. The application was denied. 127 F.Supp. 689 (1955). The Court of Appeals for the Second Circuit reversed, sustaining Caminito's claim that his confession had been procured in violation of the Fourteenth Amendment; he was directed to be discharged unless the State accorded him a new trial. United States ex rel. Caminito v. Murphy, 222 F.2d 698 (1955); certiorari was denied, 350 U.S. 896, 76 S.Ct. 155, 100 L.Ed. 788. After Caminito's success Bonino filed a motion for reargument of his appeal in the New York Court of Appeals. The motion was granted and his conviction was also set aside and a new trial ordered on the ground that his confession had been unconstitutionally procured. People v. Bonino, 1 N.Y.2d 752, 152 N.Y.S.2d 298, 135 N.E.2d 51 (1956). Both Caminito and Bonino are now at liberty. It was said by the District Court in the opinion denying Noia relief in federal habeas, 'Even though Bonino and Caminito still remain under indictment it is most highly improbable that they will ever be tried again since the State presented no evidence but the presently unavailable coercion (sic) confessions in 1942. The obtaining of new evidence would appear at this late date impossible.' 183 F.Supp., at 227, n. 6.
2
The stipulation is as follows:
'For purposes of this proceeding, the District Attorney of Kings County concedes that the coercive nature of the confession elicited from the respondent and introduced in evidence against him at the trial in Kings County Court was established and, therefore, the record of trial need not be printed.' Brief for Respondent, p. 15, star footnote.
The facts surrounding the taking of the three confessions were essentially the same, A vivid statement of these facts is given in United States ex rel. Caminito v. Murphy, supra. The Court of Appeals condemned in strong terms the methods used to obtain the confessions. 'All decent Americans soundly condemn satanic practices, like those described above, when employed in totalitarian regimes. It should shock us when American police resort to them, for they do not comport with the barest minimum of civilized principles of justice. * * *' 222 F.2d, at 701.
3
After Caminito and Bonino were released, Noia, unable to employ the procedure of a motion for reargument since he had not appealed from his conviction, made an application to the sentencing court in the nature of coram nobis. The Kings County Court set aside his conviction. People v. Noia, 3 Misc.2d 447, 158 N.Y.S.2d 683 (1956). The Appellate Division of the Supreme Court reversed and reinstated the judgment of conviction, 4 A.D.2d 698, 163 N.Y.S.2d 796 (1957). The New York Court of Appeals affirmed the Appellate Division sub nom. People v. Caminito, 3 N.Y.2d 596, 170 N.Y.S.2d 799, 148 N.E.2d 139 (1958). The Court of Appeals held that '(Noia's) failure to pursue the usual and accepted appellate procedure to gain a review of the conviction does not entitle him later to utilize * * * coram nobis. * * * And this is so even though the asserted error or irregularity relates to a violation of constitutional right. * * *' 3
N.Y.2d, at 601, 170 N.Y.S.2d, at 804, 148 N.E.2d, at 143. Certiorari was denied sub nom. Noia v. New York, 357 U.S. 905, 78 S.Ct. 1149, 2 L.Ed.2d 1156. Noia then brought the instant federal habeas corpus proceeding in the District Court for the Southern District of New York.
The District Court held a hearing limited to an inquiry into the facts surrounding Noia's failure to appeal but made no findings as to Noia's reasons. Noia and the lawyer who defended him at his trial testified. Noia said that while aware of his right to appeal, he did not appeal because he did not wish to saddle his family with an additional financial burden and had no funds of his own. The gist of the lawyer's testimony was that Noia was also motivated not to appeal by fear that if successful he might get the death sentence if convicted on a retrial. The trial judge, not bound to accept the jury's recommendation of a life sentence, had said when sentencing him, 'I have thought seriously about rejecting the recommendation of the jury in your case, Noia, because I feel that if the jury knew who you were and what you were and your background as a robber, they would not have made a recommendation. But you have got a good lawyer, that is my wife. The last thing she told me this morning is to give you a chance.' Record, ff. 2261—2262. Noia's confession included an admission that he was the one who had actually shot the victim.
4
E.g., Reitz, Federal Habeas Corpus: Impact of an Abortive State Proceeding, 74 Harv.L.Rev. 1315 (1961); Brennan, Federal Habeas Corpus and State Prisoners: An Exercise in Federalism, 7 Utah L.Rev. 423 (1961); Hart, Foreword, The Supreme Court, 1958 Term, 73 Harv.L.Rev. 84, 101—121 (1959).
5
Habeas corpus has always had other functions besides inquiry into illegal detention with a view to an order releasing the petitioner. Blackstone names four: habeas corpus ad respondendum; ad satisfaciendum; ad prosequendum, testificandum, deliberandum; ad faciendum et recipiendum. 3 Commentaries 129—132. See, e.g., Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329; Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356. The present case, of course, concerns only the ad subjiciendum form.
6
Church, Habeas Corpus (1884), §§ 38—45; Carpenter, Habeas Corpus in the Colonies, 8 Am.Hist.Rev. 18 (1902).
7
'The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.'
8
See 1 Holdsworth, History of English Law (1927), 227—228; Chafee, The Most Important Human Right in the Constitution, 32 B.U.L.Rev. 143, 146—159 (1952).
9
See Church, supra, note 6, § 40; Ex parte Bollman and Swartwout, supra (petition for habeas by alleged seditious co-conspirators of Aaron Burr); Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281 (presidential power to institute trial by military tribunal during Civil War); Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3 (habeas sought by German saboteurs sentenced to death by a secret military tribunal); Ex parte Endo, 323 U.S. 283, 65 S.Ct. 208, 89 L.Ed. 243 (power to hold loyal citizen of Japanese descent in relocation center in World War II challenged on habeas). All the significant statutory changes in the federal writ have been prompted by grave political crises. The first modification of the provisions of the Judiciary Act of 1789 was made in the Force Act of March 2, 1833, c. 57, § 7, 4 Stat. 634 635, in response to South Carolina's nullification ordinance. The Act provided that federal courts and judges could release from state custody persons who had been acting under federal authority. The Act of August 29, 1842, c. 257, 5 Stat. 539—540, which extended federal habeas to foreign nationals acting under authority of a foreign state, was prompted by British diplomatic protest following the trial of a Canadian soldier by a New York State court. See People v. McLeod, 25 Wend. 483 (N.Y.Sup.Ct.1841). The Act of February 5, 1867, c. 28, § 1, 14 Stat. 385—386, which extended federal habeas to state prisoners generally, was passed in anticipation of possible Southern recalcitrance toward Reconstruction legislation. See p. 415. That was the last important statutory change. See Rev.Stat., Stat., 1874, §§ 751 766; 28 U.S.C. §§ 451—466 1874, §§ 751—766; 28 U.S.C. §§ 451—466 (1958 ed.); Longsdorf, The Federal Habeas Corpus Acts Original and Amended, 13 F.R.D. 407 (1953).
10
Quoted in Walker, The Constitutional and Legal Development of Habeas Corpus as the Writ of Liberty (1960), 44—45.
11
1 Holdsworth, supra, note 8, at 227. See, e.g., Dolphin v. Shutford (1542), reported in 2 Marsden, Select Pleas in the Court of Admiralty (1897), pp. xlvi—xlvii, discussed in Walker, supra, note 10, at 24 (King's Bench issued habeas to remove prisoner held pursuant to order of the Admiralty Court). See further Walker, supra, at 22—25. Of course the state courts are not inferior courts in any sense thought (at least by King's Bench) to be true of the Admiralty Court; the issuance of writs of habeas by the federal courts is, rather, an aspect of the supremacy of federal law. Brown v. Allen, 344 U.S. 433, 510, 73 S.Ct. 397, 448, 97 L.Ed. 469 (opinion of Mr. Justice Frankfurter).
12
See, e.g., Crepps v. Durden, 2 Cowper 640, 98 Eng.Rep. 1283 (K.B.1777); Rex v. Collyer, Sayer 44, 96 Eng.Rep. 797 (K.B.1752); King v. Hawkins, Fort. 272, 92 Eng.Rep. 849 (K.B.1715); Ingersoll, History and Law of the Writ of Habeas Corpus (1849), 29—31.
13
To be sure, the Act expressly excepts judicial detentions that have ripened into criminal convictions. But this exception was not intended to have the effect of denying the protection of habeas corpus for such persons in appropriate cases. Rather, such persons were excluded simply from the coverage of the Act and remitted to their common-law rights to habeas—as construed, for example, in Bushell's case—because the Act was designed to meet the problem of bail, which had principal relevance at the preconviction stage. See Brief of Paul A. Freund, Assigned Counsel, for Respondent, United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (No. 23, October Term 1951), pp. 31—32. Furthermore, the English statutes governing habeas have never been regarded as preempting common-law rights to the writ. Id., at 32; 11 Halsbury, Laws of England (3d ed. 1955), Crown Proceedings, p. 28, n. (u).
14
Habeas Corpus (Bouvier ed., 1856), B 10. (Italics supplied.) See also 2 Hale, History of the Pleas of the Crown, 144: 'if it appear upon the return (to the writ of habeas corpus), that the party is wrongfully committed, or by one that hath not jurisdiction, or for a cause for which a man ought not to be imprisond, the privilege shall be allowd, and the person discharged from that imprisonment.' In Hale's Analysis of the Civil Part of the Law (4th ed.), 78 habeas corpus is described as a remedy to remove or avoid imprisonment 'without lawful or just cause,' and is elsewhere expressly linked with due process of law: 'here falls in all the learning upon the stat. of magna charta, and charta de foresta, which concerns THE LIBERTY OF THE SUBJECT; especially magna charta, cap. 29. and those other statutes that relate to the imprisonment of the subject without due process of law; as the learning of habeas corpus, and the returns thereupon * * *.' Id., at 31.
15
'(H)aving established Federal courts Congress would be powerless to deny the privilege of the writ. Otherwise Article I, section 9 would be reduced to a dead letter.' Brief, supra, note 13, at 29. It is also pointed out there, id., at 28, that the withdrawal of the Supreme Court's jurisdiction of federal habeas appeals, which was upheld in Ex parte McCardle, 7 Wall. 506, 19 L.Ed. 264, did not affect the power of the lower federal courts to grant habeas.
A contrary argument is presented in Collings, Habeas Corpus for Convicts—Constitutional Right or Legislative Grace? 40 Calif.L.Rev. 335 (1952). We intimate no view on any of these constitutional questions.
16
The present status of Watkins with respect to problems of our jurisdiction to issue the writ on original applications to this Court is not of course at issue in the instant case. See Oaks, The 'Original' Writ of Habeas Corpus in the Supreme Court, 1962 Supreme Court Review (Kurland ed.), 153. Cf. Ex parte Republic of Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014.
17
E.g., Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877; Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676; Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89; In re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658; Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849; Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223; In re Coy, 127 U.S. 731, 8 S.Ct. 1263, 32 L.Ed. 274; United States v. DeWalt, 128 U.S. 393, 9 S.Ct. 111, 32 L.Ed. 485; Nielsen, Petitioner, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118; In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149; Andersen v. Treat, 172 U.S. 24, 19 S.Ct. 67, 43 L.Ed. 351; Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016; In re Heff, 197 U.S. 488, 25 S.Ct. 506, 49 L.Ed. 848; Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153; Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138; Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455; Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392; Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302; Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268; Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309; United States v. Hayman, 342 U.S. 205, 212, 72 S.Ct. 263, 268, 96 L.Ed. 232.
Since the enactment of 28 U.S.C.A § 2255 in 1948 (motion to the sentencing court, in the nature of coram nobis; see United States v. Hayman, supra), habeas corpus has become of less practical significance for federal prisoners.
18
Act of March 27, 1868, c. 34, § 2, 15 Stat. 44; Act of March 3, 1885, c. 353, 23 Stat. 437. See Ex parte McCardle, 7 Wall. 506, 19 L.Ed. 264.
19
E.g., Ex parte McCready, Fed.Cas.No. 8,732, 1 Hughes 598 (Cir.Ct.E.D.Va.1874); Ex parte Bridges, Fed.Cas.No. 1,862, 2 Woods 428 (Cir.Ct.N.D.Ga.1875); In re Wong Yung Quy, 6 Sawy. 237, 2 F. 624 (Cir.Ct.D.Cal.1880); In re Parrott, 6 Sawy. 349, 1 F. 481 (Cir.Ct.D.Cal.1880); In re Ah Lee, 6 Sawy. 410, 5 F. 899 (D.C.D.Ore.1880); In re Ah Chong, 6 Sawy. 451, 2 F. 733 (Cir.Ct.D.Cal.1880); Ex parte Houghton, 7 F. 657, 8 F. 897 (D.C.D.Vt.1881).
20
E.g., Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868; Wo Lee v. Hopkins, decided with Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Medley, Petitioner, 134 U.S. 160, 10 S.Ct. 384, 33 L.Ed. 835; Savage, Petitioner, 134 U.S. 176, 10 S.Ct. 389, 33 L.Ed. 842; Minnesota v. Barber, 136 U.S. 313, 10 S.Ct. 862, 34 L.Ed. 455 (disapproved in Minnesota v. Brundage, 180 U.S. 499, 21 S.Ct. 455, 45 L.Ed. 639); Crowley v. Christensen, 137 U.S. 86, 11 S.Ct. 13, 34 L.Ed. 620; In re Converse, 137 U.S. 624, 11 S.Ct. 191, 34 L.Ed. 796; In re Rahrer, 140 U.S. 545, 11 S.Ct. 865, 35 L.Ed. 572; McElvaine v. Brush, 142 U.S. 155, 12 S.Ct. 156, 35 L.Ed. 971; Cook v. Hart, 146 U.S. 183, 13 S.Ct. 40, 36 L.Ed. 934; In re Frederich, 149 U.S. 70, 13 S.Ct. 793, 37 L.Ed. 653; Felts v. Murphy, 201 U.S. 123, 26 S.Ct. 366, 50 L.Ed. 689; Pettibone v. Nichols, 203 U.S. 192, 27 S.Ct. 111, 51 L.Ed. 148; Frank v. Mangum, 237 U.S. 309, 331, 35 S.Ct. 582, 588, 59 L.Ed. 969; Lott v. Pittman, 243 U.S. 588, 37 S.Ct. 473, 61 L.Ed. 915.
21
E.g., Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791; House v. Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739; White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348; Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549; Massey v. Moore, 348 U.S. 105, 75 S.Ct. 145, 99 L.Ed. 135; Cicenia v. Lagay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523; United States ex rel. Jennings v. Ragen, 358 U.S. 276, 79 S.Ct. 321, 3 L.Ed.2d 296; Douglas v. Green, 363 U.S. 192, 80 S.Ct. 1048, 4 L.Ed.2d 1142; Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760; Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751.
22
Frank v. Mangum, 237 U.S. 309, 346—347, 35 S.Ct. 582, 595, 59 L.Ed. 969 (dissenting opinion). The principles advanced by Mr. Justice Holmes in his dissenting opinion in Frank were later adopted by the Court in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543, and have remained the law. See pp. 420—422, infra.
23
Obviously in a case of such mere error the fact that this Court had no general appellate jurisdiction, note 26, infra, over federal criminal judgment argued with special power against granting relief on habeas.
24
In Moran, the Court passed on the merits of one Fifth Amendment ground tendered by the petitioner but rejected the other whether petitioner's being compelled to walk up and down before the jury violated the Self-Incrimination Clause of the Fifth perfunctorily on the basis of lack of habeas jurisdiction to review errors not going to the jurisdiction of the convicting court. In Knewel the basis of the habeas petition was a claim of pleading deficiencies and improper venue under state law. Petitioner's assertion that his constitutional rights had been infringed was thus scarcely colorable. The allegations in Goto and Valante were similarly insubstantial.
25
See Rev.Stat., 1874, § 709; Act of September 6, 1916, c. 448, § 2, 39 Stat. 726—727; 28 U.S.C. § 1257.
26
See Act of March 3, 1891, c. 517, § 5, 26 Stat. 827. The review thus provided was by writ of error. This obligatory review was withdrawn by the Act of January 20, 1897, c. 68, 29 Stat. 492; see Frankfurter and Landis, The Business of the Supreme Court (1927), 109—113, although review as of right remained for capital cases until the Act of March 3, 1911, c. 231, §§ 128, 240, 36 Stat. 1133—1134, 1157. See 28 U.S.C. § 1254.
27
In making provision for the trial of fact on habeas (something that had been left unmentioned in the previous statutes governing federal habeas corpus), the Act of 1867 seems to have restored rather than extended the common-law powers of the habeas judge. For it appears that the common-law doctrine of the incontrovertibility of the truth of the return was subject to numerous exceptions. Hurd, Habeas Corpus (2d ed. 1876), 271; Bacon, Abridgment, Habeas Corpus (Bouvier ed., 1856), B 11.
28
Cook v. Hart, 146 U.S. 183, 194—195, 13 S.Ct. 40, 43—44, 36 L.Ed. 934; See, e.g., Ex parte Fonda, 117 U.S. 516, 6 S.Ct. 848, 29 L.Ed. 994; In re Wood, 140 U.S. 278, 11 S.Ct. 738, 35 L.Ed. 505; Pepke v. Cronan, 155 U.S. 100, 15 S.Ct. 34, 39 L.Ed. 84; In re Frederich, 149 U.S. 70, 13 S.Ct. 793, 37 L.Ed. 653; Whitten v. Tomlinson, 160 U.S. 231, 16 S.Ct. 297, 40 L.Ed. 406; Reid v. Jones, 187 U.S. 153, 23 S.Ct. 89, 47 L.Ed. 116; United States ex rel. Drury v. Lewis, 200 U.S. 1, 26 S.Ct. 229, 50 L.Ed. 343; Pettibone v. Nichols, 203 U.S. 192, 27 S.Ct. 111, 51 L.Ed. 148; Ex parte Simon, 208 U.S. 144, 28 S.Ct. 238, 52 L.Ed. 429; Johnson v. Hoy, 227 U.S. 245, 33 S.Ct. 240, 57 L.Ed. 497.
29
'An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
'An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.'
This section was added in the revision of the Judicial Code in 1948. The Reviser's Note reads: 'This new section is declaratory of existing law as affirmed by the Supreme Court. (See Ex parte Hawk, * * * 64 S.Ct. 448, 321 U.S. 114 * * *.)'
30
See, e.g., Ex parte Hawk, 321 U.S. 114, 118, 64 S.Ct. 448, 450, 88 L.Ed. 572; Jennings v. Illinois, 342 U.S. 104, 109, 72 S.Ct. 123, 126, 96 L.Ed. 119; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549; Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948; Chessman v. Teets, 350 U.S. 3, 76 S.Ct. 34, 100 L.Ed. 4; Thomas v. Arizona, 356 U.S. 390, 78 S.Ct. 885, 2 L.Ed.2d 863; Hawk v. Olson, 326 U.S. 271, 276, 66 S.Ct. 116, 119, 90 L.Ed. 61 (dictum).
The argument has recently been advanced that the Moore decision did not in fact discredit the position advanced by the Court in Frank v. Mangum (that habeas would lie only if the state courts had failed to afford petitioner corrective process), and that this position was first upset in Brown v. Allen. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 488—500 (1963). The argument would seem untenable in light of certain factors: (1) The opinion of the Court in Moore, written by Mr. Justice Holmes, is a virtual paraphrase of his dissenting opinion in Frank. (2) The thesis of the Frank majority finds no support in other decisions of the Court; though the availability of corrective process is sometimes mentioned as a factor bearing upon grant or denial of federal habeas, such language typically appears in the context of the exhaustion problem; indeed, 'available State corrective process' is part of the language of 28 U.S.C. § 2254. See, e.g., White v. Ragen, 324 U.S. 760, 764, 65 S.Ct. 978, 980, 89 L.Ed. 1348. (3) None of the opinions in Brown v. Allen even remotely suggests that the Court was changing the existing law in allowing coerced confessions and racial discrimination in jury selection to be challenged on habeas notwithstanding state court review of the merits of these constitutional claims.
31
See Brown v. Allen, 344 U.S. 443, 478, 73 S.Ct. 397, 418, 97 L.Ed. 469 (opinion of Mr. Justice Reed), 506, 73 S.Ct. 445 (opinion of Mr. Justice Frankfurter). We accompanied our denial of certiorari in Rogers v. Richmond, 357 U.S. 220, 78 S.Ct. 1365, 2 L.Ed.2d 1361, with an opinion in which we said: '* * * while the District Judge may, unless he finds a vital flaw in the State Court proceedings, accept the determination in such proceedings, he need not deem such determination binding, and may take testimony.' The Rogers case was ultimately decided on other grounds. 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760.
32
Lord Herschell, in Cox v. Hakes, (1890) 15 A.C. 506, 527 528 (H.L.), described the English practice as follows: 'No Court was bound by the view taken by any other, or felt itself obliged to follow the law laid down by it. Each Court exercised its independent judgment upon the case, and determined for itself whether the return to the writ established that the detention of the applicant was in accordance with the law. A person detained in custody might thus proceed from court to court until he obtained his liberty. * * * I need not dwell upon the security which was thus afforded against any unlawful imprisonment. It is sufficient to say that no person could be detained in custody if any one of the tribunals having power to issue the writ of habeas corpus was of opinion that the custody was unlawful.' This practice has lately been changed by statute, Administration of Justice Act, 1960, 8 & 9 Eliz. II, c. 65, § 14(2).
33
See note 16, supra.
34
See In re Frederich, 149 U.S. 70, 75—76, 13 S.Ct. 793, 794—795, 37 L.Ed. 653; Ex parte Clarke, 100 U.S. 399, 25 L.Ed. 715; Ex parte Tom Tong, 108 U.S. 556, 2 S.Ct. 871, 27 L.Ed. 826; Kurtz v. Moffitt, 115 U.S. 487, 6 S.Ct. 148, 29 L.Ed. 458; Fisher v. Baker, 203 U.S. 174, 27 S.Ct. 135, 51 L.Ed. 142; Riddle v. Dyche, 262 U.S. 333, 43 S.Ct. 555, 67 L.Ed. 1009. '(T)he writ of habeas corpus is a new suit brought by the petitioner to enforce a civil right, which he claims as against those who are holding him in custody. The proceeding is one instituted by himself for his liberty, and not be the government to punish for his crime. The judicial proceeding, under it is not to inquire into the criminal act which is complained of, but into the right to liberty notwithstanding the act. It is not a proceeding in the original action.' 1 Bailey, Habeas Corpus and Special Remedies (1913), § 4.
35
See In re Wood, 140 U.S. 278, 11 S.Ct. 738, 35 L.Ed. 505; Markuson v. Boucher, 175 U.S. 184, 20 S.Ct. 76, 44 L.Ed. 124; Davis v. Burke, 179 U.S. 399, 21 S.Ct. 210, 45 L.Ed. 249; In re Lincoln, 202 U.S. 178, 26 S.Ct. 602, 50 L.Ed. 984; Ex parte Spencer, 228 U.S. 652, 33 S.Ct. 709, 57 L.Ed. 1010; Goto v. Lane, 265 U.S. 393, 44 S.Ct. 525, 68 L.Ed. 1070; Frank v. Mangum, 237 U.S. 309, 343, 35 S.Ct. 582, 593, 59 L.Ed. 969; Jennings v. Illinois, 342 U.S. 104, 72 S.Ct. 123, 96 L.Ed. 119; Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761; Cicenia v. Lagay, 357 U.S. 504, 507—508, n. 2, 78 S.Ct. 1297, 1299, 2 L.Ed.2d 1523; Brown v. Allen, 344 U.S. 443, 503, 73 S.Ct. 397, 444, 97 L.Ed. 469 (opinion of Frankfurter, J.); Daniels v. Allen, decided with Brown v. Allen, supra, at 485—487, 73 S.Ct., at 421—422.
In Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982, the Court held that federal prisoners who did not appeal their convictions could not be released on habeas. However, the Court expressly excluded errors so grave that they 'cross the jurisdictional line,' 332 U.S., at 179, 67 S.Ct., at 1591, and implied that the claimed error was not even of constitutional dimension, Id., at 182—183, 67 S.Ct., at 1592—1593. See p. 411-412, supra.
36
Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543, is the most striking example of the Court's seeming refusal to give effect to a state procedural ground, though the Court's language is ambiguous. 261 U.S., at 91—92, 43 S.Ct., at 266—267.
37
Compare, e.g., United States ex rel. Kozicky v. Fay, 248 F.2d 520 (C.A.2d Cir., 1957); Whitley v. Steiner, 293 F.2d 895 (C.A.4th Cir., 1961); United States ex rel. Stewart v. Ragen, 231 F.2d 312 (C.A.7th Cir., 1956); and United States ex rel. Dopkowski v. Randolph, 262 F.2d 10 (C.A.7th Cir., 1958), with, e.g., Ex parte Houghton, 7 F. 657, 664; Id., 8 F. 897, 903 (D.C.D.Vt.1881); Com. of Pennsylvania ex rel. Woods v. Cavell, 157 F.Supp. 272 (D.C.W.D.Pa.1957), aff'd mem., 254 F.2d 816 (C.A.3d Cir., 1958); Johns v. Overlade, 122 F.Supp. 921 (D.C.N.D.Ind.1953); Morrison v. Smyth, 273 F.2d 544, 547 (C.A.4th Cir., 1960); United States ex rel. Rooney v. Ragen, 158 F.2d 346, 352 (C.A.7th Cir., 1946).
38
This argument derives no support from the statutory specification of 'custody,' 28 U.S.C. § 2241(c)(3). Of course custody in the sense of restraint of liberty is a prerequisite to habeas, for the only remedy that can be granted on habeas is some from of discharge from custody. McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238; In re Medley, Petitioner, 134 U.S. 160, 173—174, 10 S.Ct. 384, 388, 33 L.Ed. 835; Wales v. Whitney, 114 U.S. 564, 571, 5 S.Ct. 1050, 1053, 29 L.Ed. 277.
39
See Irvin v. Dowd, 359 U.S. 394, 410, 412—413, 79 S.Ct. 825, 834, 835, 3 L.Ed.2d 900 (dissenting opinions); Hart, note 4, supra. Professor Hart seems to concede, however, that the conventional adequate state-ground rule would have to be modified to do service in habeas, 73 Harv.L.Rev., at 112, n. 81, and further opines that the Court has 'vacillated' in its application of the rule even in conventional situations. Id., at 116. It has been said by others also that the adequate stateground rule has not been clearly articulated or consistently applied by this Court. E.g., Note, 74 Harv.L.Rev. 1375, 1394 (1961); Comment, 61 Col.L.Rev. 255, 256, 277 (1961). In any event, no habeas decision has been found which expressly rests upon it. Thus, to apply the rule in habeas would be to set sail on quite uncharter seas.
40
'The reason (for the adequate stateground rule) is so obvious that it has rarely been thought to warrant statement. It is found in the partitioning of power between the state and federal judicial systems and in the limitations of our own jurisdiction. Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.' Herb v. Pitcairn, 324 U.S. 117, 125—126, 65 S.Ct. 459, 463, 89 L.Ed. 789. See Note, note 39, supra, at 1379 and n. 32.
We need not decide whether the adequate state-ground rule is constitutionally compelled or merely a matter of the construction of the statutes defining this Court's appellate review. Murdock itself was predicated on statutory construction, and the present statute governing our review of state court decisions, 28 U.S.C. § 1257, limited as it is to 'judgments or decrees rendered by the highest court of a State in which a decision could be had' (italics supplied), provides ample statutory warrant for our continued adherence to the principles laid down in Murdock.
41
See, e.g., Staub v. Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302; Williams v. Georgia, 349 U.S. 375, 389, 75 S.Ct. 814, 822, 99 L.Ed. 1161; New York Cent. R. Co. v. New York & Pa. Co., 271 U.S. 124, 46 S.Ct. 447, 70 L.Ed. 865; Davis v. Wechsler, 263 U.S. 22, 44 S.Ct. 13, 68 L.Ed. 143; Carter v. Texas, 177 U.S. 442; Note, 74 Harv.L.Rev. 1375, 1388—1391 (1961); Comment, 61 Col.L.Rev. 255 (1961). 'Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.' Davis v. Wechsler, supra, at 24, 44 S.Ct. at 14 (Mr. Justice Holmes.)
42
See note 29, supra. Plainly, the words of § 2254 favor a construction limited to presently available remedies. Reitz, supra, n. 4, at 1365. The only two decisions of this Court prior to 1948 in which past exhaustion was strongly suggested were Ex parte Spencer, 228 U.S. 652, 33 S.Ct. 709, 57 L.Ed. 1010 and Frank v. Mangum, 237 U.S. 309, 343, 35 S.Ct. 582, 593, 59 L.Ed. 969. The latter, of course, was substantially overruled in Moore v. Dempsey, the language of which does not support a notion of forfeitures. See note 36, supra. On the other hand, Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, is typical of decisions plainly implying a rule limited to presently available remedies: 'before this Court is asked to issue a writ of habeas corpus, in the case of a person held under a state commitment, recourse should be had to whatever judicial remedy afforded by the state may still remain open. * * *
'Accordingly, leave to file the petition is denied, but without prejudice.' 294 U.S. at 115, 55 S.Ct., at 343.
43
By thus stating the rule, we do not mean to disturb the settled principles governing its application in cases of presently available state remedies. See, e.g., Brown v. Allen, 344 U.S. 443, 477—450, 73 S.Ct. 397, 402—403, 97 L.Ed. 469.
44
To the extent that any decisions of this Court may be read to suggest a standard of discretion in federal habeas corpus proceedings different from what we lay down today, such decisions shall be deemed overruled to the extent of any inconsistency.
45
A study in 1958 by the Administrative Office of the United States Courts revealed that in the preceding nine years, a total of 24 federal habeas corpus petitioners had won release from state penitentiaries. It should be borne in mind that the typical order of the District Court in such circumstances is a conditional release, permitting the State to rearrest and retry the petitioner without actually discharging him from custody. But the study does not show what number were successfully retried or reconvicted by the state authorities. Report No. 2228 on Habeas Corpus of the Senate Committee on the Judiciary, 85th Cong., 2d Sess. 28. The informativeness of this study has been questioned. Reitz, Federal Habeas Corpus: Postconviction Remedy for State Prisoners, 108 U. of Pa.L.Rev. 461, 479 and n. 98 (1960). Professor Reitz, from his study of reported opinions, suggests that at least 39 habeas petitioners were successful in the 10 years preceding 1960, at least some of whom (it is not known how many), however, were later retried and reconvicted. Id., at 481.
1
In the 12-year period from 1946 to 1957 the petitioners were successful in 1.4% of th cases. H.R.Rep.No.548, 86th Cong., 1st Sess. 37.
2
The increase in number of habeas corpus applications filed in Federal District Courts by state prisoners is illustrated by the following figures:
1941............................ 127
1945............................ 536
1950............................ 560
1955............................ 660
1960............................ 872
1961............................ 906
1962.......................... 1,232
1962 and 1959 Annual Reports, Administrative Office of U.S. Courts, pp. II—23 and 109, respectively.
3
See Report of the Committee on Habeas Corpus, Judicial Conference of the United States, March 14, 1959, reprinted in H.R.Rep.No.548, 86th Cong., 1st Sess. 15—20.
4
See Report of the Habeas Corpus Committee of the Conference of Chief Justices, August 14, 1954, reprinted in H.R.Rep.No. 1293, 85th Cong., 2d Sess. 6—10.
5
See Resolution of National Association of Attorneys General, reprinted in Hearings on H.R. 6742, H.R. 4958, H.R. 3216 and H.R. 2269 before Subcommittee 3 of the House Judiciary Committee, 86th Cong., 1st Sess. 44.
6
See H.R.Rep.No.548, 86th Cong., 1st Sess. 4; H.R. 3216 (proposed by the Judicial Conference) was passed by the House, 105 Cong.Rec. 14637, and referred to the Senate Judiciary Committee, 105 Cong.Rec. 14689, but was not reported by that Committee. It was introduced again in the Eighty-seventh Congress as H.R. 466 and was referred to the House Judiciary Committee, 107 Cong.Rec. 45, but no further action is recorded.
7
See Report of the Committee on Habeas Corpus, note 3, supra, at 16.
1
For a broad range of views, see the analytical discussions of the development of federal habeas corpus jurisdiction in Hart, Foreword, 73 Harv.L.Rev. 84; Reitz, Federal Habeas Corpus: Impact of an Abortive State Proceeding, 74 Harv.L.Rev. 1315; Breunan, Federal Habeas Corpus and State Prisoners: An Exercise in Federalism, 7 Utah L.Rev. 423; and Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441.
2
U.S.Const., Art. I, § 9, cl. 2.
3
Section 14 of the Judiciary Act of 1789, c. 20, 1 Stat. 73, 81—82.
4
The statutory development relating to review of criminal cases by the Supreme Court is discussed in Bator, supra, note 1, at 473, n. 75.
5
See also, e.g., Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877; Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; State of Minnesota v. Brundage, 180 U.S. 499, 21 S.Ct. 455, 45 L.Ed. 639.
6
See also, e.g., Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89; In re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658; In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149. Compare Ex parte Bigelow, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005.
In addition, there were a few cases during this period in which the Court rejected claims made in habeas corpus, apparently on their merits, without clearly limiting itself to questions of 'jurisdiction.' See In re Converse, 137 U.S. 624, 11 S.Ct. 191, 34 L.Ed. 796; Felts v. Murphy, 201 U.S. 123, 26 S.Ct. 366, 50 L.Ed. 689. See also Bator, supra, note 1, at 484. These cases were infrequent, however, and must be considered as exceptions to the general rules held to be applicable in this formative priod.
7
The remarks of Congressman Lawrence quoted by the majority, p. 417, were in response to a suggestion by Congressman LeBlond that the bill would not cover certain civilians in military custody. Cong. Globe, 39th Cong., 1st Sess. 4151. See also id., at 4229.
8
H.R.Rep.No.730, 48th Cong., 1st Sess. 5 (1884).
9
Frank v. State, 141 Ga 243, 280—281, 80 S.E. 1016, 1032 1033.
10
See 237 U.S., at 343, 35 S.Ct., at 593, 59 L.Ed. 969. The dissenting opinion, 237 U.S., at 345, 346, 35 S.Ct., at 594, did not take issue with this holding, but rather focused on the allegations of mob domination.
11
Hicks v. State, 143 Ark. 158, 162, 220 S.W. 308, 310.
12
Compare Hart, supra, note 1, at 105; Reitz, supra, note 1, at 1328—1329; Bator, supra, note 1, at 488—491.
13
It has been suggested that language in such cases as White v. Ragen, 324 U.S. 760, 765, 65 S.Ct. 978, 981, 89 L.Ed. 1348, and House v. Mayo, 324 U.S. 42, 48, 65 S.Ct. 517, 521, 89 L.Ed. 739, supports the result reached today by indicating that federal habeas will lie when an adequate state ground bars direct review by this Court. See Brennan, supra, note 1, at 431—432, n. 51; Reitz, spra, note 1, at 1359—1360. But these cases do not stand for this proposition. In each of them the state court appeared to have denied that the particular post-conviction remedy sought was available to redress a claim of federal right that could not have been adequately asserted in the original trial. In each of them, it remained possible that other state remedies might be open, in which event it seemed clear that the particular denial of relief rested on an adequate state ground. But if it was subsequently determined—either by further attempts to obtain state relief or by proof in a Federal District Court—that no state remedies of any kind were ever available in the state courts, then federal habeas would lie. For, 'it is not simply a question of state procedure,' and there is no truly adequate state ground, 'when a state court of last resort closes the door to any consideration of a claim of denial of a federal right.' Young v. Ragen, 337 U.S. 235, 238, 69 S.Ct. 1073, 1074, 93 L.Ed. 1333; cf. Ward v. Board of Com'rs of Love County, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751; General Oil Co. v. Crain, 209 U.S. 211, 28 S.Ct. 475, 52 L.Ed. 754. In other words, the proposition that cases such as White v. Ragen do stand for is that this Court will, as a matter of sound judicial administration, accept what appears on its face to be an adequate state ground because the Federal District Court remains open for more intensive consideration of the petitioner's claim of inadequacy. Cf. 28 U.S.C. § 2241(b).
14
A third case, Speller v. Allen, was also reported at the same time but was not significantly different, for present purposes, from Brown v. Allen.
15
Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, cited by the Court, ante, p. 414, arose on direct review of a state conviction, and did not suggest that a claim of a coerced confession, once determined by the state courts, could be redetermined on federal habeas.
16
See 344 U.S., at 486, 73 S.Ct., at 422. See also Mr. Justice Frankfurter's separate opinion, 344 U.S., at 488, 503, 73 S.Ct., at 431, 444.
17
'A failure to use a state's available remedy, in the absence of some interference or incapacity * * * bars federal habeas corpus. The statute requires that the applicant exhaust available state remedies. To show that the time has passed for appeal is not enough to empower the Federal District Court to issue the writ.' 344 U.S., at 487, 73 S.Ct., at 422.
18
'(W)here the state action was based on an adequate state ground, no further examination is required, unless no state remedy for the deprivation of federal constitutional rights ever existed.' 344 U.S., at 458, 73 S.Ct., at 408.
19
Analysis of the problem in terms of exhaustion of remedies no longer available has been severely criticized. Hart, supra, note 1, at 112—114. This 'exhaustion' approach is today quite properly interred. Ante, pp. 434—435.
20
See Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83.
21
Lawrence v. State Tax Comm'n, 286 U.S. 276, 282, 52 S.Ct. 556, 558, 76 L.Ed. 1102. See, e.g., Rogers v. Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417; NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488. See also Hart and Wechsler, The Federal Courts and the Federal System, 501.
22
See Davis v. Wechsler, 263 U.S. 22, 44 S.Ct. 13, 68 L.Ed. 143; New York Central R. Co. v. New York & Pa. Co., 271 U.S. 124, 46 S.Ct. 447, 70 L.Ed. 865; NAACP v. Alabama, supra. See also the discussion in the dissenting opinion in Williams v. Georgia, 349 U.S. 375, 393, 399, 75 S.Ct. 814, 825, 827, 99 L.Ed. 1161.
23
In Tyler v. Magwire, 17 Wall. 253, 293, 21 L.Ed. 576, the Court issued a writ of possession and ordered its marshal to execute it against the state defendant in possession.
24
The successive statutes are collected and set out in full in Robertson and Kirkham, Jurisdiction of the Supreme Court of the United States (Wolfson and Kurland ed. 1951), Appendix A.
25
28 U.S.C. § 2106 authorizes the Court to vacate, as well as reverse, affirm or modify, any judgment lawfully brought before it for review. 28 U.S.C. § 1651 (a) provides that the Court 'may issue all writs necessary or appropriate' in aid of its jurisdiction. See also 28 U.S.C. § 2241(a), giving this Court specific authority to issue writs of habeas corpus. Such writs are to be executed, under 28 U.S.C. § 672, by the marshal of this Court, who is authorized by 28 U.S.C. § 549, when acting within a State, to 'exercise the same powers which a sheriff of such state may exercise in executing the laws thereof.' The power to enter judgment and, when necessary, to enforce it by appropriate process, has been said to be inherent in the Court's appellate jurisdiction. Stanley v. Schwalby, 162 U.S. 255, 279—282, 16 S.Ct. 754, 765, 40 L.Ed. 960. See also Hart and Wechsler, supra, note 21, at 420—421.
26
In view of the concession by the State, I assume in this discussion that Noia's confession was coerced. A confession, of course, may be coerced and yet still be a wholly reliable admission of guilt. See Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760. Whether or not Noia was guilty of the crime of felony murder, and whether the evidence of his guilt was accurate and substantial, are matters irrelevant to the question of coercion and also irrelevant here.
27
See People v. Noia, 4 A.D.2d 698, 163 N.Y.S.2d 796.
28
At the oral argument the State District Attorney advised us that his office would support an application for clemency once the case had been disposed of in this Court.
| 01
|
372 U.S. 353
83 S.Ct. 814
9 L.Ed.2d 811
William DOUGLAS and Bennie Will Meyes, Petitioners,v.The PEOPLE OF the STATE OF CALIFORNIA.
No. 34.
Reargued Jan. 16, 1963.
Decided March 18, 1963.
Rehearing Denied April 29, 1963.
See 373 U.S. 905, 83 S.Ct. 1288.
Marvin M. Mitchelson and Burton Marks, Beverly Hills,
Cal., for petitioners.
Jack E. Goertzen and William E. James, Los Angeles, Cal., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioners, Bennie Will Meyes and William Douglas, were jointly tried and convicted in a California court on an information charging them with 13 felonies. A single public defender was appointed to represent them. At the commencement of the trial, the defender moved for a continuance, stating that the case was very complicated, that he was not as prepared as he felt he should be because he was handling a different defense every day, and that there was a conflict of interest between the petitioners requiring the appointment of separate counsel for each of them. This motion was denied. Thereafter, petitioners dismissed the defender, claiming he was unprepared, and again renewed motions for separate counsel and for a continuance. These motions also were denied, and petitioners were ultimately convicted by a jury of all 13 felonies, which included robbery, assault with a deadly weapon, and assault with intent to commit murder. Both were given prison terms. Both appealed as of right to the California District Court of Appeal. That court affirmed their convictions. 187 Cal.App.2d 802, 10 Cal.Rptr. 188. Both Meyes and Douglas then petitioned for further discretionary review in the California Supreme Court, but their petitions were denied without a hearing.1 187 Cal.App.2d, at 813, 10 Cal.Rptr., at 195. We granted certiorari. 368 U.S. 815, 82 S.Ct. 71, 7 L.Ed.2d 23.
2
Although several questions are presented in the petition for certiorari, we address ourselves to only one of them. The record shows that petitioners requested, and were denied, the assistance of counsel on appeal, even though it plainly appeared they were indigents. In denying petitioners' requests, the California District Court of Appeal stated that it had 'gone through' the record and had come to the conclusion that 'no good whatever could be served by appointment of counsel.' 187 Cal.App.2d 802, 812, 10 Cal.Rptr. 188, 195. The District Court of Appeal was acting in accordance with a California rule of criminal procedure which provides that state appellate courts, upon the request of an indigent for counsel, may make 'an independent investigation of the record and determine whether it would be of advantage to the defendant or helpful to the appellate court to have counsel appointed. * * * After such investigation, appellate courts should appoint counsel if in their opinion it would be helpful to the defendant or the court, and should deny the appointment of counsel only if in their judgment such appointment would be of no value to either the defendant or the court.' People v. Hyde, 51 Cal.2d 152, 154, 331 P.2d 42, 43.
3
We agree, however, with Justice Traynor of the California Supreme Court, who said that the '(d)enial of counsel on appeal (to an indigent) would seem to be a discrimination at least as invidious as that condemned in Griffin v. People of State of Illinois * * *.' People v. Brown, 55 Cal.2d 64, 71, 9 Cal.Rptr. 816, 357 P.2d 1072, 1076 (concurring opinion). In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, we held that a State may not grant appellate review in such a way as to discriminate against some convicted defendants on account of their poverty. There, as in Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, the right to a free transcript on appeal was in issue. Here the issue is whether or not an indigent shall be denied the assistance of counsel on appeal. In either case the evil is the same: discrimination against the indigent. For there can be no equal justice where the kind of an appeal a man enjoys 'depends on the amount of money he has.' Griffin v. Illinois, supra, at p. 19, 76 S.Ct., at p. 591.
4
In spite of California's forward treatment of indigents, under its present practice the type of an appeal a person is afforded in the District Court of Appeal hinges upon whether or not he can pay for the assistance of counsel. If he can the appellate court passes on the merits of his case only after having the full benefit of written briefs and oral argument by counsel. If he cannot the appellate court is forced to prejudge the merits before it can even determine whether counsel should be provided. At this stage in the proceedings only the barren record speaks for the indigent, and, unless the printed pages show that an injustice has been committed, he is forced to go without a champion on appeal. Any real chance he may have had of showing that his appeal has hidden merit is deprived him when the court decides on an ex parte examination of the record that the assistance of counsel is not required.
5
We are not here concerned with problems that might arise from the denial of counsel for the preparation of a petition for discretionary or mandatory review beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an appellate court. We are dealing only with the first appeal, granted as a matter of right to rich and poor alike (Cal.Penal Code §§ 1235, 1237), from a criminal conviction. We need not now decide whether California would have to provide counsel for an indigent seeking a discretionary hearing from the California Supreme Court after the District Court of Appeal had sustained his conviction (see Cal.Const., Art. VI, § 4c; Cal.Rules on Appeal, Rules 28, 29), or whether counsel must be appointed for an indigent seeking review of an appellate affirmance of his conviction in this Court by appeal as of right or by petition for a writ of certiorari which lies within the Court's discretion. But it is appropriate to observe that a State can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial of due process or an 'invidious discrimination.' Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563; Griffin v. Illinois, supra, p. 18, 76 S.Ct., p. 590. Absolute equality is not required; lines can be and are drawn and we often sustain them. See Tigner v. Texas, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124; Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163. But where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.
6
When an indigent is forced to run this gantlet of a preliminary showing of merit, the right to appeal does not comport with fair procedure. In the federal courts, on the other hand, an indigent must be afforded counsel on appeal whenever he challenges a certification that the appeal is not taken in good faith. Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593. The federal courts must honor his request for counsel regardless of what they think the merits of the case may be; and 'representation in the role of an advocate is required.' Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 975, 2 L.Ed.2d 1060.2 In California, however, once the court has 'gone through' the record and denied counsel, the indigent has no recourse but to prosecute his appeal on his own, as best he can, no matter how meritorious his case may turn out to be. The present case, where counsel was denied petitioners on appeal, shows that the discrimination is not between 'possibly good and obviously bad cases,' but between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but a poor man cannot. There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.
7
We vacate the judgment of the District Court of Appeal and remand the case to that court for further proceedings not inconsistent with this opinion. It is so ordered.
8
Judgment of the District Court of Appeal vacated and case remanded.
9
Mr. Justice CLARK, dissenting.
10
I adhere to my vote in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), but, as I have always understood that case, it does not control here. It had to do with the State's obligation to furnish a record to an indigent on appeal. There we took pains to point out that the State was free to 'find other means of affording adequate and effective appellate review to indigent defendants.' Id., at 20, 76 S.Ct., at 591. Here California has done just that in its procedure for furnishing attorneys for indigents on appeal. We all know that the overwhelming percentage of in forma pauperis appeals are frivolous. Statistics of this Court show that over 96% of the petitions filed here are of this variety.1 California, in the light of a like experience, has provided that upon the filing of an application for the appointment of counsel the District Court of Appeal shall make 'an independent investigation of the record and determine whether it would be of advantage to the defendant or helpful to the appellate court to have counsel appointed.' People v. Hyde, 51 Cal.2d 152, 154, 331 P.2d 42, 43 (1958). California's courts did that here and after examining the record certified that such an appointment would be neither advantageous to the petitioners nor helpful to the court. It, therefore, refused to go through the useless gesture of appointing an attorney. In my view neither the Equal Protection Clause nor the Due Process Clause requires more. I cannot understand why the Court says that this procedure afforded petitioners 'a meaningless ritual.' To appoint an attorney would not only have been utter extravagance and a waste of the State's funds but as surely 'meaningless' to petitioners.
11
With this new fetish for indigency the Court piles an intolerable burden on the State's judicial machinery. Indeed, if the Court is correct it may be that we should first clean up our own house. We have afforded indigent litigants much less protection than has California. Last Term we received over 1,200 in forma pauperis applications in none of which had we appointed attorneys or required a record. Some were appeals of right. Still we denied the petitions or dismissed the appeals on the moving papers alone. At the same time we had hundreds of paid cases in which we permitted petitions or appeals to be filed with not only records but briefs by counsel, after which they were disposed of in due course. On the other hand, California furnishes the indigent a complete record and if counsel is requested requires its appellate courts either to (1) appoint counsel or (2) make an independent investigation of that record and determine whether it would be of advantage to the defendant or helpful to the court to have counsel appointed. Unlike Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, decision in these matters is not placed in the unreviewable discretion of the Public Defender or appointed counsel but is made by the appellate court itself.2
12
California's concern for the rights of indigents is clearly revealed in People v. Hyde, supra. There, although the Public Defender had not undertaken the prosecution of the appeal, the District Court of Appeal nevertheless referred the application for counsel and the record to the Los Angeles Bar Association. One of its members reviewed these papers, after which he certified that no meritorious ground for appeal was disclosed. Despite this the California District Court of Appeal made its own independent examination of the record.
13
There is an old adage which my good Mother used to quote to me, i.e., 'People who live in glass houses had best not throw stones.' I dissent.
14
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
15
In holding that an indigent has an absolute right to appointed counsel on appeal of a state criminal conviction, the Court appears to rely both on the Equal Protection Clause and on the guarantees of fair procedure inherent in the Due Process Clause of the Fourteenth Amendment, with obvious emphasis on 'equal protection.' In my view the Equal Protection Clause is not apposite, and its application to cases like the present one can lead only to mischievous results. This case should be judged solely under the Due Process Clause, and I do not believe that the California procedure violates that provision.
16
EQUAL PROTECTION.
17
To approach the present problem in terms of the Equal Protection Clause is, I submit, but to substitute resounding phrases for analysis. I dissented from this approach in Griffin v. Illinois, 351 U.S. 12, 29, 34—36, 76 S.Ct. 585, 595, 597—599, 100 L.Ed. 891,1 and I am constrained to dissent from the implicit extension of the equal protection approach here—to a case in which the State denies no one an appeal, but seeks only to keep within reasonable bounds the instances in which appellate counsel will be assigned to indigents.
18
The States, of course, are prohibited by the Equal Protection Clause from discriminating between 'rich' and 'poor' as such in the formulation and application of their laws. But it is a far different thing to suggest that this provision prevents the State from adopting a law of general applicability that may affect the poor more harshly than it does the rich, or, on the other hand, from making some effort to redress economic imbalances while not eliminating them entirely.
19
Every financial exaction which the State imposes on a uniform basis is more easily satisfied by the well-to-do than by the indigent. Yet I take it that no one would dispute the constitutional power of the State to levy a uniform sales tax, to charge tuition at a state university, to fix rates for the purchase of water from a municipal corporation, to impose a standard fine for criminal violations, or to establish minimum bail for various categories of offenses. Nor could it be contended that the State may not classify as crimes acts which the poor are more likely to commit than are the rich. And surely, there would be no basis for attacking a state law which provided benefits for the needy simply because those benefits fell short of the goods or services that others could purchase for themselves.
20
Laws such as these do not deny equal protection to the less fortunate for one essential reason: the Equal Protection Clause does not impose on the States 'an affirmative duty to lift the handicaps flowing from differences in economic circumstances.'2 To so construe it would be to read into the Constitution a philosophy of leveling that would be foreign to many of our basic concepts of the proper relations between government and society. The State may have a moral obligation to eliminate the evils of poverty, but it is not required by the Equal Protection Clause to give to some whatever others can afford.
21
Thus it should be apparent that the present case, as with Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, and Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, is not one properly regarded as arising under this clause. California does not discriminate between rich and poor in having a uniform policy permitting everyone to appeal and to retain counsel, and in having a separate rule dealing only with the standards for the appointment of counsel for those unable to retain their own attorneys. The sole classification established by this rule is between those cases that are believed to have merit and those regarded as frivolous. And, of course, no matter how far the state rule might go in providing counsel for indigents, it could never be expected to satisfy an affirmative duty—if one existed—to place the poor on the same level as those who can afford the best legal talent available.
22
Parenthetically, it should be noted that if the present problem may be viewed as one of equal protection, so may the question of the right to appointed counsel at trial, and the Court's analysis of that right in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, is wholly unnecessary. The short way to dispose of Gideon v. Wainwright, in other words, would be simply to say that the State deprives to indigent of equal protection whenever it fails to furnish him with legal services, and perhaps with other services as well, equivalent to those that the affluent defendant can obtain.
23
The real question in this case, I submit, and the only one that permits of satisfactory analysis, is whether or not the state rule, as applied in this case, is consistent with the requirements of fair procedure guaranteed by the Due Process Clause. Of course, in considering this question, it must not be lost sight of that the State's responsibility under the Due Process Clause is to provide justice for all. Refusal to furnish criminal indigents with some things, that others can afford may fall short of constitutional standards of fairness. The problem before us is whether this is such a case.
24
DUE PROCESS.
25
It bears reiteration that California's procedure of screening its criminal appeals to determine whether or not counsel ought to be appointed denies to no one the right to appeal. This is not a case, like Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209, in which a court rule or statute bars all consideration of the merits of an appeal unless docketing fees are prepaid. Nor is it like Griffin v. Illinois, supra, in which the State conceded that 'petitioners needed a transcript in order to get adequate appellate review of their alleged trial errors.' 351 U.S., at 16, 76 S.Ct., at 589. Here it is this Court which finds, notwithstanding California's assertions to the contrary, that as a matter of constitutional law 'adequate appellate review' is impossible unless counsel has been appointed. And while Griffin left it open to the States to devise 'other means of affording adequate and effective appellate review to indigent defendants,' 351 U.S., at 20, 76 S.Ct., at 591, the present decision establishes what is seemingly an absolute rule under which the State may be left without any means of protecting itself against the employment of counsel in frivolous appeals.3
26
It was precisely towards providing adequate appellate review as part of what the Court concedes to be 'California's forward treatment of indigents'—that the State formulated the system which the Court today strikes down. That system requires the state appellate courts to appoint counsel on appeal for any indigent defendant except 'if in their judgment such appointment would be of no value to either the defendant or the court.' People v. Hyde, 51 Cal.2d 152, 154, 331 P.2d 42, 43. This judgment can be reached only after an independent investigation of the trial record by the reviewing court. And even if counsel is denied, a full appeal on the merits is accorded to the indigent appellant, together with a statement of the reasons why counsel was not assigned. There is nothing in the present case, or in any other case that has been cited to us, to indicate that the system has resulted in injustice. Quite the contrary, there is every reason to believe that California appellate courts have made a painstaking effort to apply the rule fairly and to live up to the State Supreme Court's mandate. See, e.g., the discussion in People v. Vigil, 189 Cal.App.2d 478, 480—482, 11 Cal.Rptr. 319, 321—322.
27
We have today held that in a case such as the one before us, there is an absolute right to the services of counsel at trial. Gideon v. Wainwright, 372 U.S., p. 335, 83 S.Ct., p. 792. But the appellate procedures involved here stand on an entirely different constitutional footing. First, appellate review is in itself not required by the Fourteenth Amendment, McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867; see Griffin v. Illinois, supra, 351 U.S., at 18, 76 S.Ct., at 590, and thus the question presented is the narrow one whether the State's rules with respect to the appointment of counsel are so arbitrary or unreasonable, in the context of the particular appellate procedure that it has established, as to require their invalidation. Second, the kinds of questions that may arise on appeal are circumscribed by the record of the proceedings that led to the conviction; they do not encompass the large variety of tactical and strategic problems that must be resolved at the trial. Third, as California applies its rule, the indigent appellant receives the benefit of expert and conscientious legal appraisal of the merits of his case on the basis of the trial record, and whether or not he is assigned counsel, is guaranteed full consideration of his appeal. It would be painting with too broad a brush to conclude that under these circumstances an appeal is just like a trial.
28
What the Court finds constitutionally offensive in California's procedure bears a striking resemblance to the rules of this Court and many state courts of last resort on petitions for certiorari or for leave to appeal filed by indigent defendants pro se. Under the practice of this Court, only if it appears from the petition for certiorari that a case merits review is leave to proceed in forma pauperis granted, the case transferred to the Appellate Docket, and counsel appointed. Since our review is generally discretionary, and since we are often not even given the benefit of a record in the proceedings below, the disadvantages to the indigent petitioner might be regarded as more substantial than in California. But as conscientiously committed as this Court is to the great principle of 'Equal Justice Under Law,' it has never deemed itself constitutionally required to appoint counsel to assist in the preparation of each of the more than 1,000 pro se petitions for certiorari currently being filed each Term. We should know from our own experience that appellate courts generally go out of their way to give fair consideration to those who are unrepresented.
29
The Court distinguishes our review from the present case on the grounds that the California rule relates to 'the first appeal, granted as a matter of right.' Page 356. But I fail to see the significance of this difference. Surely, it cannot be contended that the requirements of fair procedure are exhausted once an indigent has been given one appellate review. Cf. Lane v. Brown, 372 U.S., p. 477, 83 S.Ct., p. 768. Nor can it well be suggested that having appointed counsel is more necessary to the fair administration of justice in an initial appeal taken as a matter of right, which the reviewing court on the full record has already determined to be frivolous, than in a petition asking a higher appellate court to exercise its discretion to consider what may be a substantial constitutional claim.
30
Further, there is no indication in this record, or in the state cases cited to us, that the California procedure differs in any material respect from the screening of appeals in federal criminal cases that is prescribed by 28 U.S.C. § 1915. As recently as last Term, in Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21, we had occasion to pass upon the application of this statute. Although that decision established stringent restrictions on the power of federal courts to reject an application for leave to appeal in forma pauperis, it nonetheless recognized that the federal courts could prevent the needless expenditure of public funds by summarily disposing of frivolous appeals. Indeed in some respects, California has outdone the federal system, since it provides a transcript and an appeal on the merits in all cases, no matter how frivolous.
31
I cannot agree that the Constitution prohibits a State in seeking to redress economic imbalances at its bar of justice and to provide indigents with full review, from taking reasonable steps to guard against needless expense. This is all that California has done. Accordingly, I would affirm the state judgment.4
1
While the notation of a denial of hearing by the California Supreme Court indicates that only Meyes petitioned that Court for a hearing, and is silent as to Douglas' attempts at further review, the record shows that the petition for review was expressly filed on behalf of Douglas as well. Both Meyes and Douglas, therefore, have exhausted their state remedies and both cases are properly before us. 28 U.S.C. § 1257(3).
2
'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.' Coppedge v. United States, 369 U.S. 438, 449, 82 S.Ct. 917, 923, 8 L.Ed.2d 21.
1
Statistics from the office of the Clerk of this Court reveal that in the 1961 Term only 38 of 1.093 in forma pauperis petitions for certiorari were granted (3.4%). Of 44 in forma pauperis appeals, all but one were summarily dismissed (2.3%).
2
The crucial question here is, of course, the effectiveness of the appellate review which was unquestionably provided. In Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768 the unreviewable decision of the Public Defender precluded any appellate review under Indiana law. As to the fairness and effectiveness of the appellate review here as compared with Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585 (1956), the State conceded the necessity of a transcript for adequate review of the alleged trial errors in that case. Id., 372 U.S., at 16, 83 S.Ct., at 589. Compare the statement of the District Court of Appeal in affirming here: 'Further, the briefs filed by Meyes (which Douglas adopted) conform to the rules in all respects, are well written, present all possible points clearly and ably with abundant citation of pertinent authorities, and were no doubt prepared by one well versed in criminal law and procedure and in brief writing. There was no prejudicial error in not appointing counsel for defendants on the appeal.' 187 Cal.App.2d 802, 812, 10 Cal.Rptr. 188, 195.
1
The majority in Griffin appeared to rely, as here, on a blend of the Equal Protection and Due Process Clauses in arriving at the result. So far as the result in that case rested on due process grounds, I fully accept the authority of Griffin.
2
Griffin v. Illinois, supra, at 34, 76 S.Ct. at 598 (dissenting opinion of this writer).
3
California law provides that if counsel is appointed on appeal, the court shall fix a reasonable fee to be paid by the State. California Penal Code § 1241. It is of course clear that this Court may not require the State to compel its attorneys to donate their services.
4
Petitioners also contend that they were denied the effective assistance of counsel at trial. This claim, in my view, is without merit. A reading of the record leaves little doubt that petitioners' dismissal of their appointed counsel and their efforts to obtain a continuance were designed to delay the proceedings and, in all likelihood, to manufacture an appealable issue. Moreover, the trial court acted well within constitutional bounds in denying the claim that there was a conflict of interest between Douglas and Meyes that required a separate appointed attorney for each.
| 12
|
372 U.S. 293
83 S.Ct. 745
9 L.Ed.2d 770
Charles TOWNSEND, Petitioner,v.Frank G. SAIN, Sheriff of Cook County, et al.
No. 8.
Reargued Oct. 8 and 9, 1962.
Decided March 18, 1963.
[Syllabus from pages 293-295 intentionally omitted]
George N. Leighton, Chicago, Ill., for petitioner.
Edward J. Hladis, Chicago, Ill., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
This case, in its present posture raising questions as to the right to a plenary hearing in federal habeas corpus, comes to us once again after a tangle of prior proceedings. In 1955 the petitioner, Charles Townsend, was tried before a jury for murder in the Criminal Court of Cook County, Illinois. At his trial petitioner, through his court-appointed counsel, the public defender, objected to the introduction of his confession on the ground that it was the product of coercion. A hearing was held outside the presence of the jury, and the trial judge denied the motion to suppress. He later admitted the confession into evidence. Further evidence relating to the issue of voluntariness was introduced before the jury. The charge permitted them to disregard the confession if they found that it was involuntary. Under Illinois law the admissibility of the confession is determined solely by the trial judge, but the question of voluntariness, because it bears on the issue of credibility, may also be presented to the jury. See, e.g., People v. Schwartz, 3 Ill.2d 520, 523, 121 N.E.2d 758, 760; People v. Roach, 369 Ill. 95, 15 N.E.2d 873. The jury found petitioner guilty and affixed the death penalty to its verdict. The Supreme Court of Illinois affirmed the conviction, two justices dissenting. People v. Townsend, 11 Ill.2d 30, 141 N.E.2d 729, 69 A.L.R.2d 371. This Court denied a writ of certiorari. 355 U.S. 850, 78 S.Ct. 76, 2 L.Ed.2d 60.
2
Petitioner next sought post-conviction collateral relief in the Illinois State courts. The Cook County Criminal Court dismissed his petition without holding an evidentiary hearing. The Supreme Court of Illinois by order affirmed, holding that the issue of coercion was res judicata, and this Court again denied certiorari. 358 U.S. 887, 79 S.Ct. 128, 3 L.Ed.2d 115. The issue of coercion was pressed at all stages of these proceedings.
3
Having thoroughly exhausted his state remedies, Townsend petitioned for habeas corpus in the United States District Court for the Northern District of Illinois. That court, considering only the pleadings filed in the course of that proceeding and the opinion of the Illinois Supreme Court rendered on direct appeal, denied the writ. The Court of Appeals for the Seventh Circuit dismissed an appeal. 265 F.2d 660. However, this Court granted a petition for certiorari, vacated the judgment and remanded for a decision as to whether, in the light of the state-court record, a plenary hearing was required. 359 U.S. 64, 79 S.Ct. 655, 3 L.Ed.2d 634.
4
On the remand, the District Court held no hearing and dismissed the petition, finding only that 'Justice would not be served by ordering a full hearing or by awarding any or all of (the) relief sought by Petitioner.' The judge stated that he was satisfied from pages 294-296 state-court records before him that the decision of the state courts holding the challenged confession to have been freely and voluntarily given by petitioner was correct, and that there had been no denial of federal due process of law. On appeal the Court of Appeals concluded that '(o)n habeas corpus, the district court's inquiry is limited to a study of the undisputed portions of the record' and that the undisputed portions of this record showed no deprivation of constitutional rights. 276 F.2d 324, 329. We granted certiorari to determine whether the courts below had correctly determined and applied the standards governing hearings in federal habeas corpus. 365 U.S. 866, 81 S.Ct. 907, 5 L.Ed.2d 859. The case was first argued during the October Term 1961. Two of the Justices were unable to participate in a decision, and we subsequently ordered it reargued. 369 U.S. 834, 82 S.Ct. 864, 7 L.Ed.2d 841. We now have it before us for decision.
5
The undisputed evidence adduced at the trial-court hearing on the motion to suppress showed the following. Petitioner was arrested by Chicago police shortly before or after 2 a.m. on New Year's Day 1954. They had received information from one Campbell, then in their custody for robbery, that petitioner was connected with the robbery and murder of Jack Boone, a Chicago steelworker and the victim in this case. Townsend was 19 years old at the time, a confirmed heroin addict and a user of narcotics since age 15. He was under the influence of a dose of heroin administered approximately one and one-half hours before his arrest. It was his practice to take injections three to five hours apart. At about 2:30 a.m. petitioner was taken to the second district police station and, shortly after his arrival, was questioned for a period variously fixed from one-half to two hours. During this period, he denied committing any crimes. Thereafter at about 5 a.m. he was taken to the 19th district station where he remained, without being questioned, until about 8:15 p.m. that evening. At that time he was returned to the second district station and placed in a line-up with several other men so that he could be viewed by one Anagnost, the victim of another robbery. When Anagnost identified another man, rather than petitioner, as his assailant, a scuffle ensued, the details of which were disputed by petitioner and the police. Following this incident petitioner was again subjected to questioning. He was interrogated more or less regularly from about 8:45 until 9:30 by police officers. At that time an Assistant State's Attorney arrived. Some time shortly before or after nine o'clock, but before the arrival of the State's attorney, petitioner complained to Officer Cagney that he had pains in his stomach, that he was suffering from other withdrawal symptoms, that he wanted a doctor, and that he was in need of a dose of narcotics. Petitioner clutched convulsively at his stomach a number of times. Cagney, aware that petitioner was a narcotic addict, telephoned for a police physician. There was some dispute between him and the State's Attorney, both prosecution witnesses, as to whether the questioning continued until the doctor arrived. Cagney testified that it did and the State's Attorney to the contrary. In any event, after the withdrawal symptoms commenced it appears that petitioner was unresponsive to questioning. The doctor appeared at 9:45. In the presence of Officer Cagney he gave Townsend a combined dosage by injection of 1/8-grain of phenobarbital and 1/230-grain of hyoscine. Hyoscine is the same as scopolamine and is claimed by petitioner in this proceeding to have the properties of a 'truth serum.' The doctor also left petitioner four or five 1/4-grain tablets of phenobarbital. Townsend was told to take two of these that evening and the remainder the following day. The doctor testified that these medications were given to petitioner for the purpose of alleviating the withdrawal symptoms; the police officers and the State's Attorney testified that they did not know what the doctor had given petitioner. The doctor departed between 10 and 10:30. The medication alleviated the discomfort of the withdrawal symptoms, and petitioner promptly responded to questioning.
6
As to events succeeding this point in time on January 1, the testimony of the prosecution witnesses and of the petitioner irreconcilably conflicts. However, for the purposes of this proceeding both sides agree that the following occurred. After the doctor left, Officer Fitzgerald and the Assistant State's Attorney joined Officer Cagney in the room with the petitioner, where he was questioned for about 25 minutes. They all then went to another room; a court reporter there took down petitioner's statements. The State's Attorney turned the questioning to the Boone case about 11:15. In less than nine minutes a full confession was transcribed. At about 11:45 the questioning was terminated, and petitioner was returned to his cell.
7
The following day, Saturday, January 2, at about 1 p.m. petitioner was taken to the office of the prosecutor where the Assistant State's Attorney read, and petitioner signed, transcriptions of the statements which he had made the night before. When Townsend again experienced discomfort on Sunday evening, the doctor was summoned. He gave petitioner more 1/4-grain tablets of phenobarbital. On Monday, January 4, Townsend was taken to a coroner's inquest where he was called to the witness stand by the State and, after being advised of his right not to testify, again confessed. At the time of the inquest petitioner was without counsel. The public defender was not appointed to represent him until his arraignment on January 12.
8
Petitioner testified at the motion to suppress to the following version of his detention. He was initially questioned at the second district police station for a period in excess of two hours. Upon his return from the 19th district and after Anagnost, the robbery victim who had viewed the line-up, had identified another person as the assailant, Officer Cagney accompanied Anagnost into the hall and told him that he had identified the wrong person. Another officer then entered the room, hit the petitioner in the stomach and stated that petitioner knew that he had robbed Anagnost. Petitioner fell to the floor and vomited water and a little blood. Officer Cagney spoke to Townsend 5 or 10 minutes later, Townsend told him that he was sick from the use of drugs, and Cagney offered to call a doctor if petitioner would 'cooperate' and tell the truth about the Boone murder. Five minutes later the officer had changed his tack; he told petitioner that he thought him innocent and that he would call the doctor, implying that the doctor would give him a narcotic. The doctor gave petitioner an injection in the arm and five pills. Townsend took three of these immediately. Although he felt better, he felt dizzy and sleepy and his distance vision was impaired. Anagnost was then brought into the room, and petitioner was asked by someone to tell Anagnost that he had robbed him. Petitioner then admitted the robbery, and the next thing he knew was that he was sitting at a desk. He fell asleep but was awakened and handed a pen; he signed his name believing that he was going to be released on bond. Townsend was taken to his cell but was later taken back to the room in which he had been before. He could see 'a lot of lights flickering,' and someone told him to hold his head up. This went on for a minute or so, and petitioner was then again taken back to his cell. The next morning petitioner's head was much clearer, although he could not really remember what had occurred following the injection on the previous evening. An officer then told petitioner that he had confessed. Townsend was taken into a room and asked about a number of robberies and murders. 'I believe I said yes to all of them.' He could not hear very well and felt sleepy. That afternoon, after he had taken the remainder of the phenobarbital pills, he was taken to the office of the State's Attorney. Half asleep he signed another paper although not aware of its contents. The doctor gave him six or seven pills of a different color on Sunday evening. He took some of these immediately. They kept him awake all night. The following Monday morning he took more of these pills. Later that day he was taken to a coroner's inquest. He testified at the inquest because the officers had told him to do so.
9
Essentially the prosecution witnesses contradicted all of the above. They testified that petitioner had been questioned initially for only one-half hour, that he had scuffled with the man identified by Anagnost, and not an officer, and that he had not vomited. The officers and the Assistant State's Attorney also testified that petitioner had appeared to be awake and coherent throughout the evening of the 1st of January and at all relevant times thereafter, and that he had not taken the pills given to him by the doctor on the evening of the 1st. They stated that the petitioner had appeared to follow the statement which he signed and which was read to him at the State's Attorney's office. Finally they denied that any threats or promises of any sort had been made or that Townsend had been told to testify at the coroner's inquest. As stated above counsel was not provided for him at this inquest.
10
There was considerable testimony at the motion to suppress concerning the probable effects of hyoscine and phenobarbital. Dr. Mansfield, who had prescribed for petitioner on the evening when he had first confessed, testified for the prosecution. He stated that a full therapeutic dose of hyoscine was 1/100 of a grain; that he gave Townsend 1/230 of a grain; that 'phenobarbital * * * reacts very well combined with (hyoscine when) * * * you want to quiet' a person; that the combination will 'pacify' because 'it has an effect on the mind'; but that the dosage administered would not put a person to sleep and would not cause amnesia or impairment of eyesight or of mental condition. The doctor denied that he had administered any 'truth serum.' However, he did not disclose that hyoscine is the same as scopolamine or that the latter is familiarly known as 'truth serum.' Petitioner's expert was a doctor of physiology, pharmacology and toxicology. He was formerly the senior toxicological chemist of Cook County and at the time of trial was a professor of pharmacology, chemotherapy and toxicology at the Loyola University School of Medicine. He testified to the effect of the injection upon a hypothetical subject, obviously the petitioner. The expert stated that the effect of the prescribed dosage of hyoscine upon the subject, assumed to be a narcotic addict, 'would be of such a nature that it could range between absolute sleep * * * and drowsiness, as one extreme, and the other extreme * * * would incorporate complete disorientation and excitation * * *.' And, assuming that the subject took 1/8-grain phenobarbital by injection and 1/2-grain orally at the same time, the expert stated that the depressive effect would be accentuated. The expert testified that the subject would suffer partial or total amnesia for five to eight hours and loss of near vision for four to six hours.
11
The trial judge summarily denied the motion to suppress and later admitted the court reporter's transcription of the confession into evidence. He made no findings of fact and wrote no opinion stating the grounds of his decision.1 Thereafter, for the purpose of testing the credibility of the confession, the evidence relating to coercion was placed before the jury. At that time additional noteworthy testimony was elicited. The identity of hyoscine and scopolamine was established (but no mention of the drug's properties as a 'truth serum' was made). An expert witness called by the prosecution testified that Townsend had such a low intelligence that he was a near mental defective and 'just a little above moron.' Townsend testified that the officers had slapped him on several occasions and had threatened to shoot him. Finally, Officer Corcoran testified that about 9 p.m., Friday evening, before the doctor's arrival, Townsend had confessed to the Boone assault and robbery in response to a question propounded by Officer Cagney in the presence of Officers Fitzgerald, Martin and himself. But although Corcoran, Cagney and Martin had testified extensively at the motion to suppress, none had mentioned any such confession. Furthermore, both Townsend and Officer Fitzgerald at the motion to suppress had flatly said that no statement had been made before the doctor arrived. Although the other three officers testified at the trial, not one of them was asked to corroborate this phase of Corcoran's testimony.
12
It was established that the homicide occurred at about 6 p.m. on December 18, 1953. Essentially the only evidence which connected petitioner with the crime, other than his confession, was the testimony of Campbell, then on probation for robbery, and of the pathologist who performed the autopsy on Boone. Campbell testified that about the 'middle' of December at about 8:30 p.m. he had seen Townsend walking down a street in the vicinity of the murder with a brick in his hand. He was unable to fix the exact date, did not know of the Boone murder at the time and, so far as his testimony revealed, had no reason to suspect that Townsend had done anything unlawful previous to their meeting.
13
The pathologist testified that death was caused by a 'severe blow to the top of his (Boone's) head * * *.' Contrary to the statement in the opinion of the Illinois Supreme Court on direct appeal there was no testimony that the wounds were 'located in such a manner as to have been inflicted by a blow with a house brick * * *.' 11 Ill.2d at 45, 141 N.E.2d at 737. In any event, that court characterized the evidence as meagre and noted that 'it was brought out by cross-examination that Campbell had informed on the defendant to obtain his own release from custody.' 11 Ill.2d at 44, 45, 141 N.E.2d at 737. Prior to petitioner's trial Campbell was placed on probation for robbery. Justice Schaefer, joined by Chief Justice Klingbiel in dissent, found Campbell's testimony 'inherently incredible.' 11 Ill.2d at 49, 141 N.E.2d at 739.
14
The theory of petitioner's application for habeas corpus did not rest upon allegations of physical coercion. Rather, it relied upon the hitherto undisputed testimony and alleged: (1) that petitioner vomited water and blood at the police station when he became ill from the withdrawal of narcotics; (2) that scopolamine is a 'truth serum' and that this fact was not brought out at the motion to suppress or at the trial; (3) that scopolamine 'either alone or combined with Phenobarbital, is not the proper medication for a narcotic addict (and that) * * * (t)he effect of the intravenous injection of hyoscine and phenobarbital * * * is to produce a physiological and psychological condition adversely affecting the mind and will * * * (and) a psychic effect which removes the subject thus injected from the scope of reality; so that the person so treated is removed from contact with his environment, he is not able to see and feel properly, he loses proper use of his eye-sight, his hearing and his sense of perception and his ability to withstand interrogation'; (4) that the police doctor willfully suppressed this information and information of the identity of hyoscine and scopolamine, of his knowledge of these things, and of his intention to inject the hyoscine for the purpose of producing in Townsend 'a physiological and psychological state * * * susceptible to interrogation resulting in * * * confessions * * *'; (5) that the injection caused Townsend to confess; (6) that on the evening of January 1, immediately after the injection of scopolamine, petitioner confessed to three murders and one robbery other than the murder of Boone and the robbery of Anagnost. Although there was some mention of other confessions at the trial, only the confession to the Anagnost robbery was specifically testified to.
15
Initially, in their answer, respondents stated: 'Respondents admit the factual allegations of the petition well pleaded, but deny that Petitioner is held in custody by Respondents in violation of the constitution or laws of the United States * * *.' However, in the course of the first argument before the District Court it appeared that respondents admitted nothing alleged in the petition but merely took the position that the petition, on its face, was insufficient to entitle Townsend either to a hearing or to his release. In the course of the second argument after the remand by this Court, respondents admitted that 'if the allegations of the petition are taken as true, then the petitioner is entitled to the relief he seeks * * *,' and that Townsend had confessed to at least five crimes after the injection of hyoscine. But respondents denied that 'petitioner was adversely influenced by its (the hyoscine's) administration to the extent that his confession was obtained involuntarily'; that 'Hyoscine is the truth serum'; that 'the police surgeon or the prosecution concealed pertinent, material and relevant facts'; or that hyoscine was an improper medication under the circumstances. Despite respondents' concession that a dispute as to these facts existed, the district judge denied Townsend the opportunity to call witnesses or to produce other evidence in support of his allegations and dismiss the petition.
16
Before we granted the most recent petition for certiorari we requested respondents to submit an additional response directed to certain of the allegations of the petition for habeas corpus. Respondents submitted an 'additional answer to petition for habeas corpus' in which they again admitted that Townsend had made confessions immediately after the injection of drugs. Specifically they admitted that petitioner confessed to the robberies of Anagnost and one Joseph Martin and to the murders of Boone, Thomas Johnson, Johnny Stinson, and Willis Thompson. The additional answer revealed the following additional information respecting Townsend's confessions to these crimes. Anagnost had identified another person, rather than petitioner, as his assailant. Thomas Johnson, before his death, had stated that his injury had been an accident. The Assistant State's Attorney did not even bother to transcribe Townsend's statement with respect to Thompson's murder 'because the defendant could not recall the details of the assault which led to the death * * *.' At the Thompson coroner's inquest, when the deputy coroner noted that Townsend was then unable to remember even that he had committed the crime, Officer Cagney complained: 'Why shouldn't we be given credit for these Clean-ups.' Despite these circumstances which made conviction for the Anagnost robbery and the Johnson and Thompson murders, at best, a remote possibility, petitioner was indicted for all of the crimes to which he had confessed. However, after a jury trial, he was acquitted of the murder of Johnny Stinson, and on the very day that he was sentenced to death for the Boone murder, on the motion of the prosecutor, the indictments for the murders of Johnson and Thompson and for the robberies of Anagnost and Martin were dismissed.
17
Although the petition for habeas corpus contains allegations which would constitute a claim that the police doctor, at the trial, had perjured himself, the heart of Townsend's claim is that his confession was inadmissible simply because it was caused by the injection of hyoscine. We must first determine whether petitioner's allegations, if proved, would establish the right to his release.
I.
18
Numerous decisions of this Court have established the standards governing the admissibility of confessions into evidence. If an individual's 'will was overborne'2 or if his confession was not 'the product of a rational intellect and a free will,'3 his confession is inadmissible because coerced. These standards are applicable whether a confession is the product of physical intimidation or psychological pressure and, of course, are equally applicable to a druginduced statement. It is difficult to imagine a situation in which a confession would be less the product of a free intellect, less voluntary, than when brought about by a drug having the effect of a 'truth serum.'4 It is not significant that the drug may have been administered and the questions asked by persons unfamiliar with hyoscine's properties as a 'truth serum,' if these properties exist. Any questioning by police officers which in fact produces a confession which is not the product of a free intellect renders that confession inadmissible.5 The Court has usually so stated the test. See, e.g., Stroble v. California, 343 U.S. 181, 190, 72 S.Ct. 599, 603, 96 L.Ed. 872: 'If the confession which petitioner made * * * was in fact involuntary, the conviction cannot stand * * *.' And in Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242, we held irrelevant the absence of evidence of improper purpose on the part of the questioning officers. There the evidence indicated that the interrogating officers thought the defendant sane when he confessed, but we judged the confession inadmissible because the probability was that the defendant was in fact insane at the time.
19
Thus we conclude that the petition for habeas corpus alleged a deprivation of constitutional rights. The remaining question before us then is whether the District Court was required to hold a hearing to ascertain the facts which are a necessary predicate to a decision of the ultimate constitutional question.
20
The problem of the power and duty of federal judges, on habeas corpus, to hold evidentiary hearings—that is, to try issues of fact6 anew—is a recurring one. The Court last dealt at length with it in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, in opinions by Justices Reed and Frankfurter, both speaking for a majority of the Court. Since then, we have but touched upon it.7 We granted certiorari in the 1959 Term to consider the question, but ultimately disposed of the case on a more immediate ground. Rogers v. Richmond, 365 U.S. 534, 540, 81 S.Ct. 735, 739, 5 L.Ed.2d 760. It has become apparent that the opinions in Brown v. Allen, supra, do not provide answers for all aspects of the hearing problem for the lower federal courts, which have reached widely divergent, in fact often irreconcilable, results.8 We mean to express no opinion on the correctness of particular decisions. But we think that it is appropriate at this time to elaborate the considerations which ought properly to govern the grant or denial of evidentiary hearings in federal habeas corpus proceedings.
II.
21
The broad considerations bearing upon the proper interpretation of the power of the federal courts on habeas corpus are reviewed at length in the Court's opinion in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, and need not be repeated here. We pointed out there that the historic conception of that writ, anchored in the ancient common law and in our Constitution as an efficacious and imperative remedy for detentions of fundamental illegality, has remained constant to the present day. We pointed out, too, that the Act of February 5, 1867, c. 28, § 1, 14 Stat. 385—386, which in extending the federal writ to state prisoners described the power of the federal courts to take testimony and determine the facts de novo in the largest terms, restated what apparently was the common-law understanding. Fay v. Noia, 372 U.S., p. 416, 83 S.Ct., p. 837, n. 27. The hearing provisions of the 1867 Act remain substantially unchanged in the present codification. 28 U.S.C. § 2243. In construing the mandate of Congress, so plainly designed to afford a trial-type proceeding in federal court for state prisoners aggrieved by unconstitutional detentions, this Court has consistently upheld the power of the federal courts on habeas corpus to take evidence relevant to claims of such detention. 'Since Frank v. Mangum, 237 U.S. 309, 331, 35 S.Ct. 582, 588, 59 L.Ed. 969, this Court has recognized that habeas corpus in the federal courts by one convicted of a criminal offense is a proper procedure 'to safeguard the liberty of all persons within the jurisdiction of the United States against infringement through any violation of the Constitution,' even though the events which were alleged to infringe did not appear upon the face of the record of his conviction.' Hawk v. Olson, 326 U.S. 271, 274, 66 S.Ct. 116, 118, 90 L.Ed. 61. Brown v. Allen and numerous other cases have recognized this.
22
The rule could not be otherwise. The whole history of the writ—its unique development—refutes a construction of the federal courts' habeas corpus powers that would assimilate their task to that of courts of appellate review. The function on habeas is different. It is to test by way of an original civil proceeding, independent of the normal channels of review of criminal judgments, the very gravest allegations. State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution. Simply because detention so obtained is intolerable, the opportunity for redress, which presupposes the opportunity to be heard, to argue and present evidence, must never be totally foreclosed. See Frank v. Mangum, 237 U.S. 309, 345—350, 35 S.Ct. 582, 594—596, 59 L.Ed. 969 (dissenting opinion of Mr. Justice Holmes). It is the typical, not the rare, case in which constitutional claims turn upon the resolution of contested factual issues. Thus a narrow view of the hearing power would totally subvert Congress' specific aim in passing the Act of February 5, 1867, of affording state prisoners a forum in the federal trial courts for the determination of claims of detention in violation of the Constitution. The language of Congress, the history of the writ, the decisions of this Court, all make clear that the power of inquiry on federal habeas corpus is plenary. Therefore, where an applicant for a writ of habeas corpus alleges facts which, if proved, would entitle him to relief, the federal court to which the application is made has the power to receive evidence and try the facts anew.
III.
23
We turn now to the considerations which in certain cases may make exercise of that power mandatory. The appropriate standard which must be considered to supersede, to the extent of any inconsistencies, the opinions in Brown v. Allen—is this: Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.9
24
It would be unwise to overly particularize this test. The federal district judges are more intimately familiar with state criminal justice, and with the trial of fact, than are we, and to their sound discretion must be left in very large part the administration of federal habeas corpus. But experience proves that a too general standard—the 'exceptional circumstances' and 'vital flaw' tests of the opinions in Brown v. Allen—does not serve adequately to explain the controlling criteria for the guidance of the federal habeas corpus courts. Some particularization may therefore be useful. We hold that a federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.
25
(1) There cannot even be the semblance of a full and fair hearing unless the state court actually reached and decided the issues of fact tendered by the defendant. Thus, if no express findings of fact have been made by the state court, the District Court must initially determine whether the state court has impliedly found material facts. No relevant findings have been made unless the state court decided the constitutional claim tendered by the defendant on the merits. If relief has been denied in prior state collateral proceedings after a hearing but without opinion, it is often likely that the decision is based upon a procedural issue—that the claim is not collaterally cognizable—and not on the merits. On the other hand, if the prior state hearing occurred in the course of the original trial—for example, on a motion to suppress allegedly unlawful evidence, as in the instant case—it will usually be proper to assume that the claim was rejected on the merits.
26
If the state court has decided the merits of the claim but has made no express findings, it may still be possible for the District Court to reconstruct the findings of the state trier of fact, either because his view of the facts is plain from his opinion or because of other indicia. In some cases this will be impossible, and the Federal District Court will be compelled to hold a hearing.
27
Reconstruction is not possible if it is unclear whether the state finder applied correct constitutional standards in disposing of the claim. Under such circumstances the District Court cannot ascertain whether the state court found the law or the facts adversely to the petitioner's contentions. Since the decision of the state trier of fact may rest upon an error of law rather than an adverse determination of the facts, a hearing is compelled to ascertain the facts. Of course, the possibility of legal error may be eliminated in many situations if the fact finder has articulated the constitutional standards which he has applied. Furthermore, the coequal responsibilities of state and federal judges in the administration of federal constitutional law are such that we think the district judge may, in the ordinary case in which there has been no articulation, properly assume that the state trier of fact applied correct standards of federal law to the facts, in the absence of evidence, such as was present in Rogers v. Richmond, that there is reason to suspect that an incorrect standard was in fact applied.10 Thus, if third-degree methods of obtaining a confession are alleged and the state court refused to exclude the confession from evidence, the district judge may assume that the state trier found the facts against the petitioner, the law being, of course, that third-degree methods necessarily produce a coerced confession.
28
In any event, even if it is clear that the state trier of fact utilized the proper standard, a hearing is sometimes required if his decision presents a situation in which the 'so-called facts and their constitutional significance (are) so blended that they cannot be severed in consideration.' Rogers v. Richmond, supra, 365 U.S. at 546, 81 S.Ct. at 742. See Frank v. Mangum, supra, 237 U.S. at 347, 35 S.Ct. at 595 (Holmes, J., dissenting). Unless the district judge can be reasonably certain that the state trier would have granted relief if he had believed petitioner's allegations, he cannot be sure that the state trier in denying relief disbelieved these allegations. If any combination of the facts alleged would prove a violation of constitutional rights and the issue of law on those facts presents a difficult or novel problem for decision, any hypothesis as to the relevant factual determinations of the state trier involves the purest speculation. The federal court cannot exclude the possibility that the trial judge believed facts which showed a deprivation of constitutional rights and yet (erroneously) concluded that relief should be denied. Under these circumstances it is impossible for the federal court to reconstruct the facts, and a hearing must be held.
29
(2) This Court has consistently held that state factual determinations not fairly supported by the record cannot be conclusive of federal rights. Fiske v. Kansas, 274 U.S. 380, 385, 47 S.Ct. 655, 656, 71 L.Ed. 1108; Blackburn v. Alabama, 361 U.S. 199, 208—209, 80 S.Ct. 274, 281, 4 L.Ed.2d 242. Where the fundamental liberties of the person are claimed to have been infringed, we carefully scrutinize the state-court record. See, e.g., Blackburn v. Alabama, supra; Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167. The duty of the Federal District Court on habeas is no less exacting.
30
(3) However, the obligation of the Federal District Court to scrutinize the state-court findings of fact goes farther than this. Even if all the relevant facts were presented in the state-court hearing, it may be that the factfinding procedure there employed was not adequate for reaching reasonably correct results. If the state trial judge has made serious procedural errors (respecting the claim pressed in federal habeas) in such things as the burden of proof, a federal hearing is required. Even where the procedure employed does not violate the Constitution, if it appears to be seriously inadequate for the ascertainment of the truth, it is the federal judge's duty to disregard the state findings and take evidence anew. Of course, there are procedural errors so grave as to require an appropriate order directing the habeas applicant's release unless the State grants a new trial forthwith. Our present concern is with errors which, although less serious, are nevertheless grave enough to deprive the state evidentiary hearing of its adequacy as a means of finally determining facts upon which constitutional rights depend.
31
(4) Where newly discovered evidence is alleged in a habeas application, evidence which could not reasonably have been presented to the state trier of facts, the federal court must grant an evidentiary hearing. Of course, such evidence must bear upon the constitutionality of the applicant's detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus. Also, the district judge is under no obligation to grant a hearing upon a frivolous or incredible allegation of newly discovered evidence.
32
(5) The conventional notion of the kind of newly discovered evidence which will permit the reopening of a judgment is, however, in some respects too limited to provide complete guidance to the federal district judge on habeas. If, for any reason not attributable to the inexcusable neglect of petitioner, see Fay v. Noia, 372 U.S., p. 438, 83 S.Ct., p. 848 (Part V), evidence crucial to the adequate consideration of the constitutional claim was not developed at the state hearing, a federal hearing is compelled. The standard of inexcusable default set down in Fay v. Noia adequately protects the legitimate state interest in orderly criminal procedure, for it does not sanction needless piecemeal presentation of constitutional claims in the form of deliberate by-passing of state procedures. Compare Price v. Johnston, 334 U.S. 266, 291, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356: 'The primary purpose of a habeas corpus proceeding is to make certain that a man is not unjustly imprisoned. And if for some justifiable reason he was previously unable to assert his rights or was unaware of the significance of relevant facts, it is neither necessary nor reasonable to deny him all opportunity of obtaining judicial relief.'
33
(6) Our final category is intentionally open-ended because we cannot here anticipate all the situations wherein a hearing is demanded. It is the province of the district judges first to determine such necessities in accordance with the general rules. The duty to try the facts anew exists in every case in which the state court has not after a full hearing reliably found the relevant facts.
IV.
34
It is appropriate to add a few observations concerning the proper application of the test we have outlined.
35
First. The purpose of the test is to indicate the situations in which the holding of an evidentiary hearing is mandatory. In all other cases where the material facts are in dispute, the holding of such a hearing is in the discretion of the district judge. If he concludes that the habeas applicant was afforded a full and fair hearing by the state court resulting in reliable findings, he may, and ordinarily should, accept the facts as found in the hearing. But he need not. In every case he has the power, constrained only by his sound discretion, to receive evidence bearing upon the applicant's constitutional claim. There is every reason to be confident that federal district judges, mindful of their delicate role in the maintenance of proper federal-state relations, will not abuse that discretion. We have no fear that the hearing power will be used to subvert the integrity of state criminal justice or to waste the time of the federal courts in the trial of frivolous claims.
36
Second. Although the district judge may, where the state court has reliably found the relevant facts, defer to the state court's findings of fact, he may not defer to its findings of law. It is the district judge's duty to apply the applicable federal law to the state court fact findings independently. The state conclusions of law may not be given binding weight on habeas. That was settled in Brown v. Allen, supra, 344 U.S. at 506, 73 S.Ct. at 445 (opinion of Mr. Justice Frankfurter).
37
Third. A District Court sitting in habeas corpus clearly has the power to compel production of the complete state-court record. Ordinarily such a record—including the transcript of testimony (or if unavailable some adequate substitute, such as a narrative record), the pleadings, court opinions, and other pertinent documents—is indispensable to determining whether the habeas applicant received a full and fair state-court evidentiary hearing resulting in reliable findings. See United States ex rel. Jennings v. Ragen, 358 U.S. 276, 79 S.Ct. 321, 3 L.Ed.2d 296; Townsend v. Sain, 359 U.S. 64, 79 S.Ct. 655, 3 L.Ed.2d 634. Of course, if because no record can be obtained the district judge has no way of determining whether a full and fair hearing which resulted in findings of relevant fact was vouchsafed, he must hold one. So also, there may be cases in which it is more convenient for the district judge to hold an evidentiary hearing forthwith rather than compel production of the record. It is clear that he has the power to do so.
38
Fourth. It rests largely with the federal district judges to give practical form to the principles announced today. We are aware that the too promiscuous grant of evidentiary hearings on habeas could both swamp the dockets of the District Courts and cause acute and unnecessary friction with state organs of criminal justice, while the too limited use of such hearings would allow many grave constitutional errors to go forever uncorrected. The accommodation of these competing factors must be made on the front line, by the district judges who are conscious of their paramount responsibility in this area.
V.
39
Application of the foregoing principles to the particular litigation before us is not difficult. Townsend received an evidentiary hearing at his original trial, where his confession was held to be voluntary. Having exhausted his state remedies without receiving any further such hearing, he turned to the Federal District Court. Twice now, habeas corpus relief has been denied without an evidentiary hearing. On appeal from the second denial, the Court of Appeals held that '(o)n habeas corpus, the district court's inquiry is limited to a study of the undisputed portions of the record.' That formulation was error. And we believe that on this record it was also error to refuse Townsend an evidentiary hearing in the District Court. The state trial judge rendered neither an opinion, conclusions of law, nor findings of fact. He made no charge to the jury setting forth the constitutional standards governing the admissibility of confessions. In short, there are no indicia which would indicate whether the trial judge applied the proper standard of federal law in ruling upon the admissibility of the confession. The Illinois Supreme Court opinion rendered at the time of direct appeal contains statements which might indicate that the court thought the confession was admissible if it satisfied the 'coherency' standard. Under that test the confession would be admissible '(s)o long as the accused (was) capable of making a narrative of past events or of stating his own participation in the crime * * *.' 11 Ill.2d at 43, 141 N.E.2d at 736. As we have indicated in Part I of this opinion, this test is not the proper one. Possibly the state trial judge believed that the admissibility of allegedly drug-induced confessions was to be judged by the 'coherency' standard.11 However, even if this possibility could be eliminated, and it could be ascertained that correct standards of law were applied, it is still unclear whether the state trial judge would have excluded Townsend's confession as involuntary if he had believed the evidence which Townsend presented at the motion to suppress. The problem which the trial judge faced was novel and by no means without difficulty. We believe that the Federal District Court could not conclude that the state trial judge admitted the confession because he disbelieved the evidence which would show that it was involuntary. We believe that the findings of fact of the state trier could not be successfully reconstructed. We hold that, for this reason, an evidentiary hearing was compelled.12
40
Furthermore, a crucial fact was not disclosed at the state-court hearing: that the substance injected into Townsend before he confessed has properties which may trigger statements in a legal sense involuntary.13 This fact was vital to whether his confession was the product of a free will and therefore admissible. To be sure, there was medical testimony as to the general properties of hyoscine, from which might have been inferred the conclusion that Townsend's power of resistance had been debilitated. But the crucially informative characterization of the drug, the characterization which would have enabled the judge and jury, mere laymen, intelligently to grasp the nature of the substance under inquiry, was inexplicably omitted from the medical experts' testimony. Under the circumstances, disclosure of the identity of hyoscine as a 'truth serum' was indispensable to a fair, rounded, development of the material facts. And the medical experts' failure to testify fully cannot realistically be regarded as Townsend's inexcusable default. See Fay v. Noia, 372 U.S., p. 438, 83 S.Ct., p. 848 (Part V).
41
On the remand it would not, of course, be sufficient for the District Court merely to hear new evidence and to read the state-court record. Where an unresolved factual dispute exists, demeanor evidence is a significant factor in adjudging credibility. And questions of credibility, of course, are basic to resolution of conflicts in testimony. To be sure, the state-court record is competent evidence,14 and either party may choose to rely solely upon the evidence contained in that record, but the petitioner, and the State, must be given the opportunity to present other testimonial and documentary evidence relevant to the disputed issues. This was not done here.
42
In deciding this case as we do, we do not mean to prejudge the truth of the allegations of the petition for habeas corpus. We decide only that on this record the federal district judge was obliged to hold a hearing.
43
Reversed and remanded.
44
Mr. Justice GOLDBERG, concurring.
45
I join in the opinion and judgment of the Court and add a few words by way of comment on the dissenting opinion of my Brother STEWART.
46
I cannot agree with Mr. Justice STEWART that the instructions given to the jury by the trial judge on the issue of credibility indicate the application of a proper constitutional test to measure the voluntariness—and hence the admissibility—of the petitioner's disputed confession of the Boone murder. In my view, the very portions of the instructions excerpted by my Brother STEWART support, if anything, the contrary conclusion that an improper and constitutionally impermissible standard was utilized by the trial judge himself in the suppression hearing.
47
If, as suggested by my Brother STEWART, these instructions are taken to evidence the exclusionary standard applied by the trial judge in ruling on the petitioner's motion to suppress, they reflect error of constitutional dimension, as does the standard of admissibility contained in the affirming opinion of the Illinois Supreme Court. While the appellate court, as pointed out in the opinion of THE CHIEF JUSTICE, see pp. 319—321, appears to have adopted a test of 'coherency' to measure the admissibility of the confession, the trial court seemingly concluded that inducement of amnesia was a prerequisite to disregard of the confession. Both standards, whether or not intended to incorporate similar elements, fail to conform to the requisite test.
48
The third paragraph of the instructions quoted by my Brother STEWART in footnote 2, p. 330, advises the jury that it might discount the confession if it found that administration of the drug caused the petitioner to 'lose his memory,' to suffer 'a state of amnesia' during the period of questioning, and to be unable 'to control his answers or to assert his will by denying the crime charged.' By use of the conjunctive to incorporate the requirement of loss of control, this instruction indicates the trial court's apparent view that if the drug had the effect of overbearing the petitioner's will but did not also cause loss of memory, the confession would nonetheless remain acceptable evidence of guilt. This conclusion is buttressed by the instruction quoted in the concluding paragraph of note 2 in my Brother STEWART'S dissenting opinion, in which the trial court indicates that the confession might be disregarded by the jury not simply if the drug had the effect asserted by the petitioner's expert in response to a hypothetical question, but only if, in addition, the drug so affected the petitioner's consciousness that 'he did not know what he was doing.' The petitioner may have been fully aware of what he was doing in confessing and may have suffered no loss of memory, but that is not the issue. The crucial question, and the measure of evidentiary propriety under the Constitution, is whether the drug—whatever label was or was not affixed to it—so overbore the petitioner's will that he was unable to resist confessing. Whether or not he was conscious of what he was doing, the petitioner could, because of the drug, have been wholly unable to stop himself from admitting guilt.*
49
In the absence of contrary indications, I think we must recognize that the misconception of the constitutional standard evidenced by these instructions may well have infected the trial judge's ruling at the suppression hearing. The inference of error is not negatived by the remainder of the instructions, which permit disregard of the confession if induced by force, physical or mental, duress, or promise of reward. In the context of the instructions as a whole, these references to 'voluntariness' do not meet the problems raised by the administration of the drug to the petitioner and do not vitiate the crucial inference that the trial judge viewed exclusion as dependent upon the presence of facts in addition to a druginduced sterilization of the petitioner's will.
50
For the reasons contained in the opinion of the Court, and on the basis of what I believe to be the wholly fair inference that the trial court misconceived the proper constitutional measure of admissibility of the petitioner's confession, the lack of any indication that the trial court did utilize the correct test, and the state appellate court's apparent application of a similarly erroneous standard, I agree that a hearing must be held below.
51
Finally, the Court's opinion does not warrant my Brother STEWART'S criticism as to the propriety or wisdom of articulating standards to govern the grant of evidentiary hearings in habeas corpus proceedings. The setting of certain standards is essential to disposition of this case and a definition of their scope and application is an appropriate exercise of this Court's adjudicatory obligations. Particularly when, as here, the Court is directing the federal judiciary as to its role in applying the historic remedy in a difficult and sensitive area involving large issues of federalism, the careful discharge of our function counsels that, '(i)n order to preclude individualized enforcement of the Constitution in different parts of the Nation, (we) lay down as specifically as the nature of the problem permits the standards or directions that should govern the district judges in the disposition of applications for habeas corpus by prisoners under sentence of State courts.' Brown v. Allen, 344 U.S. 443, 501 502, 73 S.Ct. 397, 443, 97 L.Ed. 469 (separate opinion of Mr. Justice Frankfurter).
52
Mr. Justice STEWART, whom Mr. Justice CLARK, Mr. Justice HARLAN, and Mr. Justice WHITE join, dissenting.
53
The basis for my disagreement with the Court can perhaps best be explained if I define at the outset the several areas in which I am entirely in accord with the Court's opinion. First, as to the underlying issue of constitutional law, I completely agree that a confession induced by the administration of drugs is constitutionally inadmissible in a criminal trial. Secondly, I agree that the Court of Appeals in this case stated an erroneous standard when it said that '(o)n habeas corpus, the district court's inquiry is limited to a study of the undisputed portions of the record. * * *' 276 F.2d 324, 329. Thirdly, I agree that where an applicant for a writ of habeas corpus alleges facts which, if proved, would entitle him to relief, the federal court to which the application is made has the power to receive evidence and try the facts anew.1
54
I differ with the Court's disposition of this case in two important respects. First, I strongly doubt the wisdom of using this case—or any other—as a vehicle for cataloguing in advance a set of standards which are inflexibly to compel district judges to grant evidentiary hearings in habeas corpus proceedings. Secondly, I think that a de novo evidentiary hearing is not required in the present case, even under the very standards which the Court's opinion elaborates.
I.
55
I have no quarrel with the Court's statement of the basic governing principle which should determine whether a hearing is to be had in a federal habeas corpus proceeding: 'Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding.' P. 312. But the Court rightly says that '(i)t would be unwise to overly particularize this test,' and I think that in attempting to erect detailed hearing standards for the myriad situations presented by federal habeas corpus applications, the Court disregards its own wise admonition.
56
The Court has done little more today than to supply new phrases—imprecise in scope and uncertain in meaning—for the habeas corpus vocabulary of District Court judges. And because they purport to establish mandatory requirements rather than guidelines, the tests elaborated in the Court's opinion run the serious risk of becoming talismanic phrases, the mechanistic invocation of which will alone determine whether or not a hearing is to be had.
57
More fundamentally, the enunciation of an elaborate set of standards governing habeas corpus hearings is in no sense required, or even invited, in order to decide the case before us, and the many pages of the Court's opinion which set these standards forth cannot, therefore, be justified even in terms of the normal function of dictum. The reasons for the rule against advisory opinions which purport to decide questions not actually in issue are too well established to need repeating at this late date. See e.g., Marine Cooks & Stewards v. Panama S.S. Co., 362 U.S. 365, 368, n. 5, 80 S.Ct. 779, 4 L.Ed.2d 797; International Association of Machinists v. National Labor Relations Board, 362 U.S. 411, 415, 80 S.Ct. 822, 825, 4 L.Ed.2d 832 n. 5. I regard these reasons as peculiarly persuasive in the present context. We should not try to hedge in with inflexible rules what is essentially an extraordinary writ, designed to do justice in extraordinary and often unpredictable situations.
II.
58
Even accepting the Court's detailed hearing standards in toto, however, I cannot agree that any one of them requires the District Court to hold a new evidentiary hearing in the present case. And I think, putting these rigid formulations to one side, that accepted principles governing the fair and prompt administration of criminal justice within our federal system affirmatively counsel against a de novo federal court hearing in this case.
59
The Court refers to two specific defects which it feels compel a hearing in the District Court: the absence of 'indicia which would indicate whether the trial judge applied the proper standard of federal law in ruling upon the admissibility of the confession' and the fact that it was not disclosed in the state hearing that 'the substance injected into Townsend before he confessed has properties which may trigger statements in a legal sense involuntary.' Since the lengthy extracts from the testimony and pleadings in the Court's opinion do not seem to me to bear on these issues, it becomes necessary to sketch the prior proceedings in this case to indicate why I think the Court is mistaken in concluding that a new hearing is required.
60
During the early morning hours of January 1, 1954, the petitioner was arrested by the Chicago police. He admitted having given himself an injection of heroin 90 minutes before his arrest. Within an hour of his arrest, he was questioned for 30 minutes about various crimes, all of which he denied having committed. He was not questioned again until that evening.
61
Shortly after the evening questioning began, the petitioner complained of stomach pains and requested a doctor. A police surgeon was summoned, and he administered an injection consisting of 2 cc.'s of a saline solution in which 1/230 grain of hyoscine hydrobromide and 1/8 grain of phenobarbital were dissolved. Slightly more than an hour later, the petitioner confessed to the murder of Boone. The following day, 15 hours after the police surgeon had administered the hyoscine, the petitioner initialed a copy of his previous night's statement in the offices of the State's Attorney General. At the coroner's hearing on January 4, the petitioner again confessed to the Boone killing.
62
A. THE STANDARD OF FEDERAL LAW APPLIED BY THE STATE TRIAL COURT IN RULING UPON THE ADMISSIBILITY OF THE CONFESSION.
63
At the trial, the petitioner's lawyer objected to introduction of the confession on the ground that it was involuntary. In accordance with Illinois practice, the motion to suppress was argued before the judge in the absence of the jury. During this proceeding, the petitioner testified that the injection had produced a temporary state of amnesia, that he could not remember making any confession, and that various other physical effects were produced. The police officers present at the petitioner's questioning stated that no change in the petitioner's demeanor suggesting any loss of his mental faculties had taken place as a result of the injection. On the question of the possible effects of the injection administered to the petitioner, Dr. Mansfield, the police surgeon and a licensed physician, testified for the State that he had treated thousands of narcotics addicts suffering from withdrawal symptoms, that in about 50% of such cases he had used the same treatment administered to the petitioner, and that he could recall no case in his experience where his use of hyoscine had produced loss of memory. A doctor of pharmacology (who was not a licensed physician) testified on behalf of the petitioner, and in answer to a hypothetical question stated that a person in the petitioner's condition at the time of interrogation could have been suffering amnesia and partial loss of consciousness as the result of the treatment which had been administered to relieve the narcotic withdrawal symptoms. On cross-examination, this witness revealed that he had never actually seen the effects of hyoscine on a human and admitted that he was unfamiliar with its use in treating drug addicts. It is evident that a finder of fact could with reason have accorded more credibility to the evidence offered by the prosecution than to that offered by the defense.
64
It is true, as the Court today says, that in overruling the motion to suppress the confession, the trial judge did not explicitly spell out the exclusionary standards he was applying. The instructions to the jury at the end of the case, however, although directed to the question of credibility—since that was the issue before the jury under Illinois procedure—were couched in terms of voluntariness, and they clearly established that the trial judge was aware of the correct constitutional standards to be applied.2 Nothing in the record indicates that an incorrect standard was applied at the suppression hearing. Given these circumstances, I think it completely impermissible for us to assume that the trial judge did not apply 'the proper standard of federal law in ruling upon the admissibility of the confession.' Where, as here, a record is totally devoid of any indication that a state trial judge employed an erroneous constitutional standard, the presumption should surely be that the judge knew the law and correctly applied it. Certainly it is improper to presume that the trial judge did not know the law which the Constitution commands him to follow. Yet that is precisely the presumption which the Court makes in this case. B. DISCLOSURE OF THE 'PROPERTIES' OF THE MEDICINE ADMINISTERED TO THE PETITIONER.
65
Much of the evidence which had been presented to the judge alone was subsequently brought before the jury by defense counsel in an attempt to diminish the weight to be given to the confession. Additional evidence was also adduced by the prosecution, including testimony by another licensed physician, who made clear that hyoscine was identical with scopolamine. The case was submitted to the jury under unexceptionable instructions,3 and the petitioner was convicted and sentenced to death. The Illinois Supreme Court, after reviewing in detail the evidence bearing on the voluntariness of the confession, affirmed the conviction. 11 Ill.2d 30, 141 N.E.2d 729. This Court denied certiorari, 355 U.S. 850, 78 S.Ct. 76, 2 L.Ed.2d 60; rehearing denied, 355 U.S. 887, 79 S.Ct. 128, 3 L.Ed.2d 115.
66
The petitioner then instituted post-conviction proceedings in the state trial court. His claim in these proceedings was that the confession had been procured as a result of the administration of scopolamine, that the witnesses for the State were aware of the identity of scopolamine and hyoscine and had deliberately withheld the fact of this identity at trial, and that the petitioner had consequently not been afforded an opportunity to make clear the basis for his claim that his confession had been coerced. The trial court dismissed the petition, and the Supreme Court of Illinois affirmed. In an unpublished opinion, that court concluded as follows:
67
'A study of our opinion on (the original appeal) discloses that all of the evidence with respect to the injection of hyoscine and phenobarbital was carefully considered by us in resolving the issue of the validity of petitioner's confession. (People vs.
68
Townsend, 11 Ill.2d 30, 35, 44, 141 N.E.2d 729, 732, 736). Thus, it is clear that the issue of the effect of the drug on the confession was before us * * *. The only matter which was not presented then was the fact that hyoscine and scopolamine are identical. In an attempt to escape from the doctrine of res judicata, the present petition for a writ of error contends that this fact could not have been presented to us because it was unknown to petitioner and his counsel at the time. Assuming for the moment the truth of this statement, we are of the opinion that the mere fact that the drug which was administered to petitioner is known by two different names presents no constitutional issue. At the original trial there was extensive medical testimony as to the properties and effects of hyoscine. If hyoscine and scopolamine are, in fact, identical, the medical testimony as to these properties and effects would be the same, regardless of the name of the drug. In determining the effect of the drug on the validity of petitioner's confession, the vital issue was its nature and its effect, rather than its name. This issue was thoroughly presented, both in the trial court and in this Court. Furthermore, the claim by petitioner now that the State 'suppressed' this identity of hyoscine and scopolamine at the trial is destroyed by reference to the bill of exceptions from the original trial. A State medical witness, on cross-examination by petitioner's counsel stated: 'Scopolamine or hyoscine are the same."
69
Even under the detailed hearing requirements announced today by the Court, therefore, I think it is clear that the district judge had no choice but to conclude, on the basis of his examination of the full record of the state proceedings, that a new hearing on habeas corpus would not be proper. For the record of the state proceedings clearly shows that the petitioner received a full and fair hearing as to the factual foundation for his constitutional claim—i.e., as to the properties of the drug which had been administered to him and the circumstances surrounding his confession. A total of 3 medical experts and 17 lay witnesses testified. Their testimony was in conflict. The trial court determined upon this conflicting evidence that there was no factual basis for the petitioner's claim that his confession had been involuntary. There is nothing whatever in the record to support an inference that the trial court did not scrupulously apply a completely correct constitutional standard in determining that the confession was admissible.4 The trial court's determination was fully reviewed by the Supreme Court of Illinois on appeal, and reviewed again in state post-conviction proceedings. To be sure, no witness at the trial used the phrase 'truth serum'—a phrase which has no precise medical or scientific meaning. Yet I cannot but agree with the Supreme Court of Illinois that the mere fact that a drug may be known by more than one name hardly presents a constitutional issue.
70
Under our Constitution the State of Illinois has the power and duty to administer its own criminal justice. In carrying out that duty, Illinois must, as must each State, conform to the Due Process Clause of the Fourteenth Amendment. I think Illinois has clearly accorded the petitioner due process in this case. To require a federal court now to hold a new trial of factual claims which were long ago fully and fairly determined in the courts of Illinois is, I think, to frustrate the fair and prompt administration of criminal justice, to disrespect the fundamental structure of our federal system, and to debase the Great Writ of Habeas Corpus.
71
I would affirm.
1
The final defense witness who testified at the motion to suppress was excused. The following then transpired:
'Mr. Branion (a defense attorney): That's all we have, if the Court please.
'The Court: The defense rests on this hearing?
'Mr. Branion: Defense rests.
'The Court: Anything further from the State?
'Mr. McGovern: The State rests for the purpose of this hearing, Judge.
'The Court: Gentlemen, the Court will deny the motion to suppress and admit the statement into evidence and well will proceed with the presentation of the evidence (to the jury).'
2
Reck v. Pate, 367 U.S. 433, 440, 81 S.Ct. 1541, 1546, 6 L.Ed.2d 948.
3
Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 280, 4 L.Ed.2d 242.
4
Of course, there are many relevant circumstances in this case which a district judge would be required to consider in determining whether the injection of scopolamine caused Townsend to confess. Among these are his lack of counsel at the time, his drug addiction, the fact that he was a 'near mental defective,' and his youth and inexperience.
5
Respondents do not dispute this. In fact at the time of the second argument before the District Court respondents stated:
'If it was a fact—to put it very bluntly as we will very shortly, and elaborate upon it—if a truth serum was administered to the petitioner and he was influenced by the truth serum and gave an involuntary confession, upon which his conviction was obtained, then that is it.'
It is at least generally recognized that the administration of sufficient doses of scopolamine will break down the will. Thus, it is stated in The Dispensatory of the United States (25th ed. 1955) 1223: 'Many persons are excessively susceptible to scopolamine and toxic symptoms may occur; such symptoms are often very alarming. There are marked disturbances of intellection, ranging from complete disorientation to an active delirium * * *.' The early literature on the subject designated scopolamine as a 'truth serum.' It was thought to produce true confessions by criminal suspects. E.g., House, Why Truth Serum Should be Made Legal, 42 Medico-Legal Journal 138 (1925). And as recently as 1940 Dean Wigmore suggested that scopolamine might be useful in criminal interrogation. 3 Wigmore on Evidence (3d ed. 1940) § 998 at 642. However, some more recent commentators suggest that scopolamine's use is not likely to produce true confessions. On the contrary it is said:
'Unfortunately, persons under the influence of drugs are very suggestible and may confess to crimes which they have not committed. False or misleading answers may be given, especially when questions are improperly phrased. For example, if the police officer asserted in a confident tone 'You did steal the money, didn't you?', a suggestible suspect might easily give a false affirmative answer.' MacDonald, Truth Serum, 46 J.Crim.L. 259, 259 260 (1955). We make no findings as to either the medical properties of scopolamine or the likely effect of the dosage administered to Townsend. However, whether scopolamine produces true confessions or false confessions, if it in fact caused Townsend to make statements, those statements were constitutionally inadmissible.
6
By 'issues of fact' we mean to refer to what are termed basic, primary, or historical facts: facts 'in the sense of a recital of external events and the credibility of their narrators * * *.' Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 446, 97 L.Ed. 469 (opinion of Mr. Justice Frankfurter). So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense.
7
See Thomas v. Arizona, 356 U.S. 390, 78 S.Ct. 885, 2 L.Ed.2d 863; Rogers v. Richmond, 357 U.S. 220, 78 S.Ct. 1365, 2 L.Ed.2d 1361 (denial of certiorari with accompanying statement); United States ex rel. Jennings v. Ragen, 358 U.S. 276, 79 S.Ct. 321, 3 L.Ed.2d 296 (per curiam); Townsend v. Sain, 359 U.S. 64, 79 S.Ct. 655, 3 L.Ed.2d 634 (per curiam) (vacating judgment on authority of United States ex rel. Jennings v. Ragen, supra).
8
See, e.g., United States ex rel. Tillery v. Cavell, 294 F.2d 12 (C.A.3d Cir.); Schlette v. People, 284 F.2d 827 (C.A.9th Cir.); Bolling v. Smyth, 281 F.2d 192 (C.A.4th Cir.); Chavez v. Dickson, 280 F.2d 727 (C.A.9th Cir.); Gay v. Graham, 269 F.2d 482 (C.A.10th Cir.); United States ex rel. Rogers v. Richmond, 252 F.2d 807 (C.A.2d Cir.), cert. denied with accompanying statement, 357 U.S. 220, 78 S.Ct. 1365, 2 L.Ed.2d 1361; United States ex rel. Alvarez v. Murphy, 246 F.2d 871 (C.A.2d Cir.); Tyler v. Pepersack, 234 F.2d 29 (C.A.4th Cir.); Cranor v. Gonzales, 226 F.2d 83 (C.A.9th Cir.); United States ex rel. De Vita v. McCorkle, 216 F.2d 743 (C.A.3d Cir.). See also Note, Habeas Corpus: Developments Since Brown v. Allen: A Survey and Analysis, 53 Nw.U.L.Rev. 765; Comment, Federal Habeas Corpus Review of State Convictions: An Interplay of Appellate Ambiguity and District Court Discretion, 68 Yale L.J. 98.
9
In announcing this test we do not mean to imply that the state courts are required to hold hearings and make findings which satisfy this standard, because such hearings are governed to a large extent by state law.
The existence of the exhaustion of state remedies requirement (announced in Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 and now codified in 28 U.S.C. § 2254) lends support to the view that a federal hearing is not always required. It presupposes that the State's adjudication of the constitutional issue can be of aid to the federal court sitting in habeas corpus.
10
Of course, under Rogers v. Richmond, a new trial is required if the trial judge or the jury, in finding the facts, has been guided by an erroneous standard of law. However, there will be situations in which statements of the trier of fact will do no more than create doubt as to whether the correct standard has been applied. In such situations a District Court hearing to determine the constitutional issue will be necessary.
11
The charge to the jury dealt only with the issues of credibility so far as the confession was concerned. Even accepting the relevance of the instructions, there is nothing in the charge to the jury to show that the trial judge, like the Supreme Court, did not think that voluntariness was conclusively established by a showing that the defendant was coherent.
12
The dissent fails to say why a hearing was not required for this reason. And 'accepting the Court's * * * hearing standards' as the dissent does, it cannot seriously be argued that a hearing was not compelled. True the state trial judge instructed the jury that it could disregard the confession on grounds of credibility if it believed the petitioner's expert. But this hardly indicates whether the trial judge, at the motion to suppress, himself disbelieved the expert or whether he thought that, notwithstanding the truth of the expert's testimony, the confession was voluntary.
13
It appears that at the suppression hearing it was not disclosed that hyoscine (the substance injected, along with phenobarbital, into Townsend) was identical to scopolamine, and neither was it disclosed that scopolamine is familiarly known as 'truth serum.' Later on in the trial, there was testimony that hyoscine is identical to scopolamine, but not that scopolamine (or hyoscine) is a 'truth serum.'
14
Cf. 28 U.S.C. §§ 2245, 2247.
*
The petitioner's initial resistance to admitting guilt, his sudden change in attitude, and the veritable flood of confessions succeeding immediately upon administration of the drug to him, see pp. 753—754, all indicate the real possibility that his will was so overborne. Moreover, the reliability of a number of these confessions is seriously impaired. See ibid.
1
Indeed, the original version of 28 U.S.C. § 2243 directed the court to 'proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require.' See Walker v. Johnston, 312 U.S. 275, 283—284, 61 S.Ct. 574, 577, 578, 85 L.Ed. 830. (Emphasis added.) The statute was later revised so that it now provides that 'The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.' The Revisers' notes indicate that the change was one of 'phraseology' and not substance.
Where the state court has reliably found facts relevant to any issue, the district judge in such a hearing should, of course, give appropriate deference to such findings. See p. 318.
2
Among the instructions given were the following:
'There has been admitted into evidence a written confession alleged to have been made freely and voluntarily by the defendant.
'You are further instructed that a confession made freely and voluntarily by a person charged with a crime may be considered by you, but if you find from the evidence that any force, physically or mentally, has been exerted upon the defendant by those having the defendant in charge after his arrest in order to obtain a confession, or that those persons made any promises to reward him if he would make such a confession, then you may totally disregard such confession.
'You are further instructed that if you find from the evidence that the defendant was given drugs and that said drugs caused him to lose his memory and create a state of amnesia in the defendant during the questioning of this defendant by the police or State's Attorney and that the defendant was not able to control his answers or to assert his will by denying the crime charged, then you may totally disregard such confession.
'You are instructed that if you find from the evidence that any influence was used on the defendant which amounted to duress upon
his mind or body which caused him to make the confession, then you may totally disregard the confession.
'You are further instructed that if you believe from the evidence in this case that duress or influence either physically or mentally was exerted upon the defendant which caused him to make the written confession which has been introduced into evidence, then you may further consider whether this influence was still in existence at the time the defendant appeared at the coroner's inquest and is alleged to have made a confession there.
'There has been introduced into evidence the testimony of a witness, who is in the category known as an 'Expert Witness,' who testified as to what influence or effect certain drugs had upon a hypothetical person.
'You are further instructed that you may take this testimony into consideration in determining whether the drugs alleged to have been administered to the defendant by Dr. Mansfield would have the same effect upon the defendant that the drug in the opinion of the 'Expert Witness' had upon the hypothetical person, and if you believe from all the evidence in this case that the drugs had the effect upon the defendant to cause his consciousness to be impaired to the extent that he did not know what he was doing while he was being questioned by police officers or the Assistant State's Attorney, then you may totally disregard any statement or confession that he is alleged to have made during the time such influence, if any, was exerted upon him.'
3
See footnote 2, supra.
4
See pp. 766—767, supra.
| 01
|
372 U.S. 517
83 S.Ct. 789
9 L.Ed.2d 918
GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION NO. 89 et al., Petitioners,v.RISS AND COMPANY, Inc.
No. 180.
Argued Feb. 19, 1963.
Decided March 18, 1963.
David Previant, Milwaukee, Wis., for petitioners.
H. Bemis Lawrence, Louisville, Ky., for respondent.
PER CURIAM.
1
Petitioners are a union and six of its members employed by the respondent interstate motor freight common carrier. The present action was brought in the United States District Court for the Western District of Kentucky, and jurisdiction was predicated on § 301 of the Labor Management Relations Act, 1947, 29 U.S.C. § 185. In their complaint, petitioners alleged that the respondent had refused to comply with a ruling of the Joint Area Cartage Committee, directing that the individual petitioners be reinstated with full seniority and back pay. The Committee's ruling was asserted to have been handed down in accordance with the grievance procedures established in the collective bargaining agreement between the union and the employer. The relief demanded in the complaint included the reinstatement of the individual petitioners, with full back pay and fringe benefits to the time of reinstatement.
2
Respondent, after filing its answer, moved to dismiss the complaint. The District Court granted the motion on the pleadings as supplemented at pretrial conference by excerpts from the Local Cartage Agreement between the union and the employer. The District Court's ground for dismissing the complaint was want of federal jurisdiction, a result deemed compelled by our decision in Association of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 348 U.S. 437, 75 S.Ct. 489, 99 L.Ed. 510. The Court of Appeals for the Sixth Circuit affirmed, 6 Cir., 298 F.2d 341, but added two more grounds in support of the order of dismissal: (1) That the determination of the joint Area Cartage Committee was not an arbitration award and so not enforceable under § 301; (2) That on the merits petitioners were not entitled to the relief ordered by the Joint Area Cartage Committee. We granted certiorari, 371 U.S. 810, 83 S.Ct. 31, 9 L.Ed.2d 53. We reverse and remand to the District Court for trial.
3
According to the allegations of the complaint, the six individual petitioners were discharged because they chose to respect and did respect a picket line established by another union at a place of business of respondent. Contending that such discharge violated Article IX of the Local Cartage Agreement, which provides in part that 'it shall not be cause for discharge if any employee or employees refuse to go through the picket line of a union * * *,' petitioners invoked the grievance machinery set up by the Agreement, and processed their grievances through the provided channels culminating in the Joint Area Cartage Committee's determination. Article VIII, § 1(e), of the Agreement provides: 'It is agreed that all matters pertaining to the interpretation of any provisions of this contract shall be referred, at the request of any party at any time, for final decision to the Joint Area Cartage Committee * * *.'
4
If, as petitioners allege, the award of the Joint Area Cartage Committee is under the collective bargaining agreement final and binding, the District Court has jurisdiction under § 301 to enforce it, notwithstanding our Westinghouse decision. See Textile Workers v. Lincoln Mills, 353 U.S. 448, 456, n. 6, 77 S.Ct. 912, 1 L.Ed.2d 972; United Steelworkers v. Pullman-Standard Car Mfg. Co., 241 F.2d 547, 551—552 (C.A.3d Cir. 1957). Plainly, this allegation cannot be rejected on the basis merely of what the present record shows. It is not enough that the word 'arbitration' does not appear in the collective bargaining agreement, for we have held that the policy of the Labor Act '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, 1346, 4 L.Ed.2d 1403; cf. Retail Clerks etc., v. Lion Dry Goods, Inc., 369 U.S. 17, 82 S.Ct. 541, 7 L.Ed.2d 503. Thus, if the award at bar is the parties' chosen instrument for the definitive settlement of grievances under the Agreement, it is enforceable under § 301. And if the Joint Area Cartage Committee's award is thus enforceable, it is of course not open to the courts to reweigh the merits of the grievance. American Mfg. Co., supra, at 567—568, 80 S.Ct. at 1346.
5
Of course, if it should be decided after trial that the grievance award involved here is not final and binding under the collective bargaining agreement, no action under § 301 to enforce it will lie. Then, should petitioners seek to pursue the action as a § 301 suit for breach of contract, there may have to be considered questions unresolved by our prior decisions. We need not reach those questions here. But since the courts below placed so much reliance on the Westinghouse decision, we deem it appropriate to repeat our conclusion in Smith v. Evening News Assn., 371 U.S. 195, 199, 83 S.Ct. 267, 269, 9 L.Ed.2d 246, that 'subsequent decisions * * * have removed the underpinnings of Westinghouse and its holding is no longer authoritative as a precedent.'
6
Reversed and remanded.
| 67
|
372 U.S. 586
83 S.Ct. 922
9 L.Ed.2d 958
James E. BUSH, Petitioner,v.STATE OF TEXAS.
No. 511.
Argued Feb. 26, 1963.
Decided March 25, 1963.
Charles Alan Wright, Austin, Tex., for petitioner.
Bruce Allen, Waxahachie, Tex., and Allo B. Crow, Jr., Odessa, Tex., for respondent.
PER CURIAM.
1
This case raises questions of due process under the Fourteenth Amendment growing out of the conviction of petitioner, an indigent, for the crime of felony theft. Upon proof of two prior theft convictions, petitioner was sentenced to life imprisonment as an habitual offender. The Texas Court of Criminal Appeals affirmed. 172 Tex.Cr.R. 54, 353 S.W.2d 855 (1962). We granted certiorari. 371 U.S. 859, 83 S.Ct. 123, 9 L.Ed.2d 98.
2
Petitioner, who in 1924 had been adjudged insane, entered a plea of not guilty by reason of insanity. His claims of a denial of due process are based on (1) the trial court's refusal prior to trial either to send him to a state mental institution for observation and diagnosis before requiring him to stand trial or to appoint and pay for a competent psychiatrist for that purpose; and (2) the alleged denial by the trial court of adequate time for proper examination and diagnosis by a psychologist who appeared at the trial upon request of petitioner's counsel.
3
Three days before argument here the State commendably filed a 'Supplemental Brief for the Respondent' calling to the Court's attention the following 'Diagnostic Summary,' relating to the petitioner's mental condition, prepared by the Psychiatric Resident of the Houston State Psychiatric Institute at Houston:
4
'Wynne Treatment Center
5
'Diagnostic Summary
6
'Name: BUSH, James E.
7
'T D C No. 165754
8
'Location: Wynne Farm
9
'I, the undersigned, Doctor A. Hug, examined on this date James E. Bush, TDC #165754, an inmate of the Wynne farm and came to the following conclusions.
10
'James is a 64 year old white widower. He was born and raised in a stable farm family situation, together with two brothers and four sisters. None of his immediate relatives at any time were in psychiatric care. He attended the third grade and later worked mainly as a blacksmith. He was married once and has two children. As far as we know from his record he was since 1937 seven times in prison for various offenses with also eight escapes listed. According to the same record he was in Terrell State Hospital in 1924 for mental observation.
11
'On examination patient showed marked psychomotor retardation. He appears to be extremely withdrawn, autistic, isolated from reality and encapsulated in himself. He appears to have no drive or interests. In his verbal productions he is very vague. He is only poorly oriented, giving the date as somewhere in January of 1963 and showed marked difficulties in recalling his past history or attending to any tests of his present memory capacity. He seems to be of low borderline intelligence. As reason for his various crimes he gives—'I always like to help somebody.' There are definite lapses in his trend of thought so that he at times appears to be odd in his statements or difficult to understand, as he, on the other hand, sometimes has difficulties to understand the examiner.
12
'All of the above evidence if not otherwise stated was given by James during a forty-five minute interview.
13
'From James' history of a social failure and from the present evidence, mainly: marked autism and incoherent thinking, we come to the conclusion that James suffers from simple schizophrenia.
14
'It is common knowledge that people who suffer from simple schizophrenia may go through life without calling the attention of a psychiatrist, since they may be distinguished as habitual criminals, alcoholics, vagabonds, etc. They all tend to run a protracted course which practically always starts early in life. They may deteriorate, but usually they go on without much deterioration. We have no doubts about the diagnosis of James, the only question we have is how much of the psychotic picture (memory difficulties) at the present time may be due to organic deterioration, though (sic), for instance, arteriosclerosis or to his autism and lack of interest. On the assumption of the above diagnosis we would have to assume that James was only partly or not at all responsible for his acts, for very many years.
15
'Adolf Hug, M.D.
16
'Psychiatric resident, Houston State Psychiatric Institute, Houston, Texas.
17
'Born 1926 in Zurich, Switzerland.
18
'Trained at University of Zurich.
19
'Holding Swiss State Board and Board for Psychiatry in Switzerland.
20
'American training: one year internship, three years psychiatric residency.
21
'AH:rdm'
22
At oral argument, when the Assistant Attorney General of Texas was asked the views of his office in the event the case should be vacated and remanded by this Court, the following colloquy took place:
The Assistant Attorney General:
23
'* * * (I)f this case was sent back * * * to the Court of Criminal Appeals, my personal position, speaking as Assistant Attorney General of the State of Texas, would be that the man should be * * * examined in this hospital (where he is presently confined as a result of the above examination) and that evidence should be presented to the trial court.'
The Chief Justice:
24
'You would grant him a new trial?'
The Assistant Attorney General:
25
'Yes.' We observe that, as a rule of consistent application, 'this Court has declined to anticipate a question of constitutional law in advance of the necessity of deciding it.' Peters v. Hobby, 349 U.S. 331, 338, 75 S.Ct. 790, 99 L.Ed. 1129 (1955). See Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 136, 67 S.Ct. 231, 91 L.Ed. 128 (1946). At the time its decision was rendered, the Court of Criminal Appeals had available to it neither the above psychiatrist's report nor the view of the Assistant Attorney General regarding disposition of the case. Appropriate federal-state relations and proper regard for state processes require that Texas' highest criminal court be afforded the opportunity to pass upon the case with these later developments before it.
26
The judgment of the Texas Court of Criminal Appeals is therefore vacated, and the case is remanded for consideration in light of subsequent developments.
27
Reversed and remanded.
| 89
|
372 U.S. 591
83 S.Ct. 914
9 L.Ed.2d 961
MICHIGAN NATIONAL BANKv.Earl T. ROBERTSON et al. MICHIGAN NATIONAL BANK v. Elvin E. HILLS et al.
Nos. 55, 64.
March 25, 1963.
PER CURIAM.
1
Respondents in these two cases purchased house trailers in Nebraska, executing and delivering notes and lien instruments to the local dealer who in turn negotiated them to the petitioner, a national bank located in Michigan. Respondents have now sued petitioner, alleging violations of the Nebraska Installment Loan Act and challenging the validity of the transactions and of the documents executed in connection therewith.1 Petitioner claimed that it could not be sued in Nebraska because of 12 U.S.C. § 942 and that 12 U.S.C. § 86, the federal usury provision,3 applied to the exclusion of the Nebraska statutes. These contentions were rejected by the Nebraska courts and respondents obtained judgments for all of the relief requested.4 The petitions for certiorari place before the Court only the applicability of 12 U.S.C. § 94 and we confine ourselves to that matter.
2
All of the reasons, save one, advanced by the Nebraska Supreme Court for not applying 12 U.S.C. § 94 in these cases we have already rejected in Mercantile Nat. Bank at Dallas v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523. The additional ground relied upon in No. 55 was that '(t)he instant action was a local action, not a transitory action. (s)ee § 25—404 R.R.S.1943;5 § 45—154, R.R.S.1943,' 172 Neb. 385, 394, 109 N.W.2d 716, 722, and thus within the exception to 12 U.S.C. § 94 carved out by Casey v. Adams, 102 U.S. 66, 26 L.Ed. 52. This ground is likewise untenable. The applicable Nebraska venue statute on its face allows suit in more than one county and, in the case of foreign corporations such as petitioner, Nebraska Revised Statute § 25—4086 appears to permit suit in any county where the defendant can be found. By its very nature, this is a considerably different kind of suit from the one to determine interests in property at its situs which was involved in Casey v. Adams. Moreover, although § 94 by its terms is applicable to all actions against national banks, when it was re-enacted in the Act of February 18, 1875, c. 80, 18 Stat. 320, it was appended to the provisions dealing with usury actions against national banks. See Mercantile Nat. Bank at Dallas v. Langdeau, supra, 371 U.S. at 561 and 568, 83 S.Ct. at 523 and 527. We think Congress clearly intended 12 U.S.C. § 94 to apply to suits involving usury and the related matters at issue here.
3
The respondents, nevertheless, would have us affirm on another ground, namely, that the documents in question here provide that all matters relating to execution, interpretation, validity and performance are to be determined by the law of the State of Nebraska and that the bank has therefore waived the benefits of § 94, as it may do. First Charlotte Nat. Bank v. Morgan, 132 U.S. 141, 10 S.Ct. 37, 33 L.Ed. 282. But we should not deal with this matter in the first instance. The Nebraska courts do not appear to have addressed themselves to this particular issue and, if the question is still open there, they may or may not decide that under the applicable law, the contractual provision relied upon reaches the issue of venue in the event of suit.
4
The petitions for certiorari are granted, the judgments are vacated and the causes are remanded for further proceedings not inconsistent with this opinion.
5
It is so ordered.
6
Judgments vacated and causes remanded with directions.
7
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurring.
8
I concur in the Court's remand of these cases, as I agree that, even if the bank could under 12 U.S.C. § 94 be sued only in the county where it is located, the bank may waive the benefits of the statute. First Charlotte Nat. Bank v. Morgan, 132 U.S. 141, 10 S.Ct. 37, 33 L.Ed. 282. But I concur only in the result, since I am in total disagreement with the Court's interpretation of § 94 and would prefer to affirm the judgments below holding that the Michigan National Bank can be sued in the Nebraska courts. Each lawsuit grew out of a business transaction in which the Michigan bank financed a Nebraska resident's purchase of a house trailer from a Nebraska dealer. Now, under this Court's holding, these people in Nebraska who allege that their contracts were usurious under Nebraska law must, unless the bank be held to have waived statutory venue, go all the way to Michigan to try to vindicate their rights against the bank. This harsh result is held to be compelled by a provision of the Act of June 3, 1864, c. 106, § 30, 13 Stat. 108, now codified in 12 U.S.C. § 94. I do not know of a single Act Congress has passed in a century which clearly and explicitly denies a person in one State the privilege of filing suit in his own State against an out-of-state company where service can be obtained and where the suit arises out of a transaction within the State. And I am not willing to find such a congressional purpose in § 94. I realize that this Court did hold several weeks ago in Mercantile Nat. Bank at Dallas v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523, that this statute requires a suit in a state court against a national bank to be brought in the county where the bank is located. Langdeau merely required that the plaintiff sue in one county of the State rather than in another. Formal logic strictly applied might call for expansion of that holding to cover the different factual situation here. But that would require a plaintiff to go to another State hundreds of miles from home to bring suit for a wrong done him in a transaction in his own State, a result which I cannot believe Congress intended.
1
'Violation of sections 45—114 to 45—155 in connection with any indebtedness, however acquired, shall render such indebtedness void and uncollectible.' Neb.Rev.Stat. § 45—155; see State ex rel. Beck v. Associates Discount Corp., 168 Neb. 298, 96 N.W.2d 55.
2
Venue of suits.
'Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.'
3
Usurious interest; penalty for taking; limitations.
'The taking, receiving, reserving, or charging a rate of interest greater than is allowed by section 85 of this title, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same: Provided, That such action is commenced within two years from the time the usurious transaction occurred.'
The preceding section, 12 U.S.C. § 85, provides in part:
Rate of interest on loans, discounts, and purchases.
'Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory, or District where the bank is located, or at a rate of 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal reserve bank in the Federal reserve district where the bank is located, whichever may be the greater, and no more, except that where by the laws of any State a different rate is limited for banks organized under State laws, the rate so limited shall be allowed for associations organized or existing in any such State under this chapter.'
4
Respondents sought the return of all installments heretofore paid to the bank, a declaration that the note, contract and mortgage were void and uncollectible and an order directing the bank to deliver the purchasers a certificate of title free and clear of encumbrances.
5
25—404. 'Local actions involving statutory liability, acts and bonds of public officers. Actions for the following causes must be brought in the county where the cause or some part thereof arose: (1) An action for the recovery of a fine, forfeiture, or penalty, imposed by a statute * * *.'
6
'An action, other than one of those mentioned in sections 25—401 to 25—403, against a nonresident of this state or a foreign corporation may be brought in any county in which there may be property of, or debts owing to said defendant, or where said defendant may be found; but if such defendant be a foreign insurance company, the action may be brought in any county where the cause, or some part thereof, arose.'
| 89
|
372 U.S. 528
83 S.Ct. 917
9 L.Ed.2d 922
Beatrice LYNUMN, Petitioner,v.STATE OF ILLINOIS.
No. 9.
Argued Feb. 19, 1963.
Decided March 25, 1963.
Mrs. Jewel Rogers Lafontant, Chicago, Ill., for petitioner.
William C. Wines, Chicago, Ill., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioner was tried in the Criminal Court of Cook County, Illinois, on an indictment charging her with the unlawful possession and sale of marijuana. She was convicted and sentenced to the penitentiary for 'not less than ten nor more than eleven years.' The judgment of conviction was affirmed on appeal by the Illinois Supreme Court. 21 Ill.2d 63, 171 N.E.2d 17. We granted certiorari 370 U.S. 933, 82 S.Ct. 1576, 8 L.Ed.2d 805. For the reasons stated in this opinion, we hold that the petitioner's trial did not meet the demands of due process of law, and we accordingly set aside the judgment before us.
2
On January 17, 1959, three Chicago police officers arrested James Zeno for unlawful possession of narcotics. They took him to a district police station. There they told him that if he 'would set somebody up for them, they would go light' on him. He agreed to 'cooperate' and telephoned the petitioner, telling her that he was coming over to her apartment. The officers and Zeno then went to the petitioner's apartment house, and Zeno went upstairs to the third floor while the officers waited below. Some time later, variously estimated as from five to 20 minutes, Zeno emerged from the petitioner's third floor apartment with a package containing a substance later determined to be marijuana. The officers took the package and told Zeno to return to the petitioner's apartment on the pretext that he had left his glasses there. When the petitioner walked out into the hallway in response to Zeno's call, one of the officers seized her and placed her under arrest.1 The officers and Zeno then entered the petitioner's apartment.2 The petitioner at first denied she had sold the marijuana to Zeno, insisting that while he was in her apartment Zeno had merely repaid a loan. After further conversations with the officers, however, she told them that she had sold the marijuana to Zeno.
3
The officers testified to this oral confession at the petitioner's trial, and it is this testimony which, we now hold, fatally infected the petitioner's conviction. The petitioner testified at the trial that she had not in fact sold any marijuana to Zeno, that Zeno had merely repaid a long-standing loan.3 She also testified, however, that she had told the officers on the day of her arrest that she had sold Zeno marijuana, describing the circumstances under which this statement was made as follows:
4
'I told him (Officer Sims) I hadn't sold Zeno; I didn't know anything about narcotics and I had no source of supply. He kept insisting I had a source of supply and had been dealing in narcotics. I kept telling him I did not and that I knew nothing about it. Then he started telling me I could get 10 years and the children could be taken away, and after I got out they would be taken away and strangers would have them, and if I could cooperate he would see they weren't; and he would recommend leniency and I had better do what they told me if I wanted to see my kids again. The two children are three and four years old. Their father is dead; they live with me. I love my children very much. I have never been arrested for anything in my whole life before. I did not know how much power a policeman had in a recommendation to the State's Attorney or to the Court. I did not know that a Court and a State's Attorney are not bound by a police officer's recommendations. I did not know anything about it. All the officers talked to me about my children and the time I could get for not cooperating. All three officers did. After that conversation I believed that if I cooperated with them and answered the questions the way they wanted me to answer, I believed that I would not be prosecuted. They had said I had better say what they wanted me to, or I would lose the kids. I said I would say anything they wanted me to say. I asked what I was to say. I was told to say 'You must admit you gave Zeno the package' so I said, 'Yes, I gave it to him.'
5
'* * * The only reason I had for admitting it to the police was the hope of saving myself from going to jail and being taken away from my children. The statement I made to the police after they promised that they would intercede for me, the statements admitting the crime, were false.
6
'* * * My statement to the police officers that I sold the marijuana to Zeno was false. I lied to the police at that time. I lied because the police told me they were going to send me to jail for 10 years and take my children, and I would never see them again; so I agreed to say whatever they wanted me to say.'
7
The police officers did not deny that these were the circumstances under which the petitioner told them that she had sold marijuana to Zeno. To the contrary, their testimony largely corroborated the petitioner's testimony. Officer Sims testified:
8
'I told her then that Zeno had been trapped and we asked him to cooperate; that he had made a phone call to her and subsequently had purchased the evidence from her. I told her then if she wished to cooperate, we would be willing to recommend to the State leniency in her case. At that time, she said, 'Yes, I did sell it to him.'
9
'* * * While I was talking to her in the bedroom, she told me that she had children and she had taken the children over to her mother-in-law, to keep her children.
10
'Q. Did you or anybody in your presence indicate or suggest or say to her that her children would be taken away from her if she didn't do what you asked her to do?
11
'Witness: I believe there was some mention of her children being taken away from her if she was arrested.
12
'The Court: By whom? Who made mention of it?
13
'The Witness: I believe Officer Bryson made that statement and I think I made the statement at some time during the course of our discussion that her children could be taken from her. We did not say if she cooperated they wouldn't be taken. I don't know whether Kobar said that to her or not. I don't recall if Kobar said that to her or not.
14
'I asked her who the clothing belonged to. She said they were her children's. I asked how many she had and she said 2. I asked her where they were or who took care of them. She said the children were over at the mother's or mother-in-law. I asked her how did she take care of herself and she said she was on ADC. I told her that if we took her into the station and charged her with the offense, that the ADC would probably be cut off and also that she would probably lose custody of her children. That was not before I said if she cooperated, it would go light on her. It was during the same conversation.
15
'* * * I made the statement to her more than once; but I don't know how many times, that she had been set up and if she cooperated we would go light with her.' Officer Bryson testified:
16
'Miss Lynumn said she was thinking about her children and she didn't want to go to jail. I was present and heard something pertaining to her being promised leniency if she would cooperate. I don't know exactly who said it. I could have, myself, or Sims.'
17
It is thus abundantly clear that the petitioner's oral confession was made only after the police had told her that state financial aid for her infant children would be cut off, and her children taken from her, if she did not 'cooperate.' These threats were made while she was encircled in her apartment by three police officers and a twice convicted felon who had purportedly 'set her up.' There was no friend or adviser to whom she might turn. She had had no previous experience with the criminal law, and had no reason not to believe that the police had ample power to carry out their threats.
18
We think it clear that a confession made under such circumstances must be deemed not voluntary, but coerced. That is the teaching of our cases. We have said that the question in each case is whether the defendant's will was overborne at the time he confessed. Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Watts v. Indiana, 338 U.S. 49, 52, 53, 69 S.Ct. 1347, 1348, 1349, 93 L.Ed. 1801; Leyra v. Denno, 347 U.S. 556, 558, 74 S.Ct. 716, 717, 98 L.Ed. 948. If so, the confession cannot be deemed 'the product of a rational intellect and a free will.' Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 280, 4 L.Ed.2d 242. See also Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265; Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; and see particularly, harris v. South Carolina, 338 U.S. 68, 70, 69 S.Ct. 1354, 1355, 93 L.Ed. 1815.
19
In this case counsel for the State of Illinois has conceded, at least for purposes of argument, that the totality of the circumstances disclosed by the record must be deemed to have combined to produce an impellingly coercive effect upon the petitioner at the time she told the officers she had sold marijuana to Zeno. But counsel for the State argues that we should nonetheless affirm the judgment before us upon either of two alternative grounds. It is contended first that the petitioner did not properly assert or preserve her federal constitutional claim in accord with established rules of Illinois procedure, and that her conviction therefore rests upon an adequate and independent foundation of state law. Secondly, it is urged that the petitioner's conviction 'does not rest in whole or in any part upon petitioner's confession.' We find both of these contentions without validity.
20
It is true that the record in this case does not show that the petitioner explicitly asserted her federal constitutional claim in the trial court. And it is said that in Illinois the procedural rule is settled that where a constitutional claim which is based not upon the alleged unconstitutionality of a statute, but upon the facts of a particular case, is not clearly and appropriately raised in the trial court, the claim will not be considered on appeal by the Supreme Court of Illinois. In other words, such a claim of constitutional right, it is said, must be asserted in the trial court or it will be deemed upon appellate review to have been waived. People v. Touhy, 397 Ill. 19, 72 N.E.2d 827.
21
If all we had to go on were the record in the Illinois trial and appellate courts, there would indeed be color to the claim of counsel for the State, and we would be squarely faced with the necessity of determining what the Illinois procedural rule actually is, and whether the rule constituted an adequate independent ground in support of the judgment affirming the petitioner's conviction. But that is not necessary in this case. For there is here a short and complete answer to the respondent's argument. Before acting upon the petition for certiorari, we entered an order directed to this very problem. The order accorded counsel for the petitioner 'opportunity to secure a certificate from the Supreme Court of Illinois as to whether the judgment herein was intended to rest on an adequate and independent state ground, or whether decision of the federal claim * * * was necessary to the judgment rendered.' 368 U.S. 908, 82 S.Ct. 190, 7 L.Ed.2d 128. The answer of the Supreme Court of Illinois was unambiguous. On June 8, 1962, that court issued the following 'Response to Request for Certificate':
22
'In response to a request by counsel for the plaintiff in error we hereby certify that decision of the federal claim referred to in the order of the United States Supreme Court dated November 13, 1961, was necessary to our judgment in this case.'
23
We decline to search behind this certificate of the Supreme Court of Illinois.
24
The State's contention that the petitioner's conviction did not rest in any part upon her confession is quite without merit. The case was tried by the court without a jury. The record shows that twice during the trial the petitioner's counsel moved to strike the testimony of the police officers as to the petitioner's oral statement to them. On the first occasion the trial judge reserved a ruling on the motion 'until the close of the State's case.' When the motion was renewed, the record states that '(t)he motion to strike was denied.' Thus the record affirmatively shows that the evidence of the petitioner's confession was admitted and considered by the trial court.
25
On appeal, the Supreme Court of Illinois, which has power independently to assess the evidence of guilt in a criminal case, People v. Ware, 23 Ill.2d 59, 177 N.E.2d 362, included in its summary of the prosecution's evidence in this case the statement that '(t)he police officers also testified to certain admissions of guilt made to them by defendant on January 17, 1959.' 21 Ill.2d, at 67, 171 N.E.2d, at 19. Later in its opinion, the court stated:
26
'A review of the record does indicate, however, that strong suggestions of leniency were made to defendant subsequent to her arrest and prior to her admissions. Even in the absence of defendant's statements, there is clear proof by Zeno and the police officers that defendant gave Zeno a package containing marijuana. Upon a review of the entire record, we are convinced that the evidence fully supports the judgment of the trial court. * * *' 21 Ill.2d, at 68, 171 N.E.2d, at 20.
27
While this statement is not free from ambiguity, we take it to express the view that even if the testimony as to the petitioner's confession was erroneously admitted, the error was a harmless one in the light of other evidence of the petitioner's guilt.4 That is an impermissible doctrine. As was said in Payne v. Arkansas, 'this Court has uniformly held that even though there may have been sufficient evidence, apart from the coerced confession, to support a judgment of conviction, the admission in evidence, over objection, of the coerced confession vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment.' 356 U.S. 560, at 568, 78 S.Ct. 844, 850, 2 L.Ed.2d 975. See Spano v. People of State of New York, 360 U.S. 315, 324, 79 S.Ct. 1202, 1207, 3 L.Ed.2d 1265; Watts v. Indiana, 338 U.S. 49, 50, n. 2, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801; Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 303, 92 L.Ed. 224.
28
The judgment is set aside, and the case is remanded to the Supreme Court of Illinois for further proceedings not inconsistent with this opinion.
29
It is so ordered.
30
Judgment set aside and case remanded with directions.
1
Officer Sims testified as follows: 'He called Beatrice and said he had left his glasses in the apartment; she opened the door and as she came out into the hall, I was standing in the common hall, in the vestibule part with the door partly closed. As she walked down the hallway toward Zeno, I opened the door and stepped into the hallway. I told her she was under arrest and I grabbed her by her hands, both hands. At this point, I told her that she had been set up, that she had just made a sale and I showed her the package.'
2
Officer Sims testified: 'I had complete physical possession of her two hands. I had turned her hands loose when we went into the apartment. I went in ahead of her. The door was still open. The apartment door was still ajar and I walked into the apartment and she followed me in. We were together but I was beside her. I believe Bryson and Zeno were behind her. She was between two police officers. We proceeded in that fashion to enter her apartment.'
3
Her testimony on this subject was as follows: 'On January 17th Zeno called me. He owed me money, $23.00. I had loaned him this money about three months previously. He said he was being evicted and had money en route from his sister and if I could lend him the money, he could pay his rent; and I haven't seen him since. That was three months previously. On this day he told me on the phone he was sorry he had not been around to pay the money but he had been in pretty bad shape. But now he had come into some money and would come and pay me.
'* * * On that day I did not give to Zeno, nor did Mr. Zeno ask me in the telephone conversation in which he said he was going to pay me the money he owed me, he did not say anything about having a can ready for him or anything like that.
'He said here is the money I owe you. He owed me $23.00. When he gave me the money, he gave me $28.00. I asked him what the $5.00 was for and he said it was because I had it so long. I did not say to Mr. Zeno let's go into the kitchen. Nothing like that. I did not have any transaction with him in the kitchen nothing even like that.'
4
It is difficult, however, to perceive how the admission of evidence of the confession could be considered harmless. The only other evidence of substance against the petitioner was that given by Zeno, a twice convicted felon who testified that he was eager in his own self-interest to cooperate with the police by 'setting up' someone. While it was undisputed that Zeno was in possession of the package of marijuana when he emerged from the petitioner's apartment, it was far from clear that Zeno obtained the marijuana from the petitioner. Zeno was out of the police officers' sight for a period of from five to 20 minutes, and there were other apartments in the building where Zeno might have obtained the package.
| 01
|
372 U.S. 539
83 S.Ct. 889
9 L.Ed.2d 929
Theodore R. GIBSON, Petitioner,v.FLORIDA LEGISLATIVE INVESTIGATION COMMITTEE.
No. 6.
Reargued Oct. 10, 11, 1962.
Decided March 25, 1963.
Robert L. Carter, New York City, for petitioner.
Mark R. Hawes, St. Petersburg, Fla., for respondent.
Mr. Justice GOLDBERG, delivered the opinion of the Court.
1
This case is the culmination of protracted litigation involving legislative investigating committees of the State of Florida and the Miami branch of the National Association for the Advancement of Colored People.
2
The origins of the controversy date from 1956, when a committee of the Florida Legislature commenced an investigation of the N.A.A.C.P. Upon expiration of this committee's authority, a new committee was established to pursue the inquiry. The new committee, created in 1957, held hearings and sought by subpoena to obtain the entire membership list of the Miami branch of the N.A.A.C.P.; production was refused and the committee obtained a court order requiring that the list be submitted. On appeal, the Florida Supreme Court held that the committee could not require production and disclosure of the entire membership list of the organization, but that it could compel the custodian of the records to bring them to the hearings and to refer to them to determine whether specific individuals, otherwise identified as, or 'suspected of being,' Communists, were N.A.A.C.P. members. 108 So.2d 729, cert. denied, 360 U.S. 919, 79 S.Ct. 1433, 3 L.Ed.2d 1535.
3
Because of the impending expiration of the authority of the 1957 committee, the Florida Legislature in 1959 established the respondent Legislative Investigation Committee to resume the investigation of the N.A.A.C.P. The authorizing statute, c. 59 207, Fla.Laws 1959, defining the purpose and operations of the respondent, declared:
4
'It shall be the duty of the committee to make as complete an investigation as time permits of all organizations whose principles or activities include a course of conduct on the part of any person or group which would constitute violence, or a violation of the laws of the state, or would be inimical to the well-being and orderly pursuit of their personal and business activities by the majority of the citizens of this state. * * *'1
5
The petitioner, then president of the Miami branch of the N.A.A.C.P., was ordered to appear before the respondent Committee on November 4, 1959, and, in accordance with the prior decision of the Florida Supreme Court, to bring with him records of the association which were in his possession or custody and which pertained to the identity of members of, and contributors to, the Miami and state N.A.A.C.P. organizations. Prior to interrogation of any witnesses the Committee chairman read the text of the statute creating the Committee and declared that the hearings would be 'concerned with the activities of various organizations which have been or are presently operating in this State in the fields of, first, race relations; second, the coercive reform of social and educational practices and mores by litigation and pressured administrative action; third, of labor; fourth, of education; fifth, and other vital phases of life in this State.' The chairman also stated that the inquiry would be directed to Communists and Communist activities, including infiltration of Communists into organizations operating in the described fields.
6
Upon being called to the stand, the petitioner admitted that he was custodian of his organization's membership records and testified that the local group had about 1,000 members, that individual membership was renewed annually, and that the only membership lists maintained were those for the then current year.
7
The petitioner told the Committee that he had not brought these records with him to the hearing and announced that he would not produce them for the purpose of answering questions concerning membership in the N.A.A.C.P. He did, however, volunteer to answer such questions on the basis of his own personal knowledge; when given the names and shown photographs of 14 persons previously identified as Communists or members of Communist front or affiliated organizations, the petitioner said that he could associate none of them with the N.A.A.C.P.
8
The petitioner's refusal to produce his organization's membership lists was based on the ground that to bring the lists to the hearing and to utilize them as the basis of his testimony would interfere with the free exercise of Fourteenth Amendment associational rights of members and prospective members of the N.A.A.C.P.
9
In accordance with Florida procedure, the petitioner was brought before a state court and, after a hearing, was adjudged in contempt, and sentenced to six months' imprisonment and fined $1,200, or, in default in payment thereof, sentenced to an additional six months' imprisonment. The Florida Supreme Court sustained the judgment below, 126 So.2d 129, and this Court granted certiorari, 366 U.S. 917, 81 S.Ct. 1093, 6 L.Ed.2d 240; the case was argued last Term and restored to the calendar for reargument this Term, 369 U.S. 834, 82 S.Ct. 863, 7 L.Ed.2d 841.
I.
10
We are here called upon once again to resolve a conflict between individual rights of free speech and association and governmental interest in conducting legislative investigations. Prior decisions illumine the contending principles.
11
This Court has repeatedly held that rights of association are within the ambit of the constitutional protections afforded by the First and Fourteenth Amendments. N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480; Shelton v. Tucker, 364 U.S. 479, 8 S.Ct. 247, 5 L.Ed.2d 231; N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405. The respondent Committee does not contend otherwise, nor could it, for, as was said in N.A.A.C.P. v. Alabama, supra, 'It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.' 357 U.S., at 460, 78 S.Ct., at 1171. And it is equally clear that the guarantee encompasses protection of privacy of association in organizations such as that of which the petitioner is president; indeed, in both the Bates and Alabama cases, supra, this Court held N.A.A.C.P. membership lists of the very type here in question to be beyond the States' power of discovery in the circumstances there presented.
12
The First and Fourteenth Amendment rights of free speech and free association are fundamental and highly prized, and 'need breathing space to survive.' N.A.A.C.P. v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405. 'Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.' Bates v. Little Rock, supra, 361 U.S., at 523, 80 S.Ct., at 416. And, as declared in N.A.A.C.P. v. Alabama, supra, 357 U.S., at 462, 78 S.Ct., at 1171, 'It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute (an) * * * effective * * * restraint on freedom of association * * *. This Court has recognized the vital relationship between freedom to associate and privacy in one's associations. * * * Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.' So it is here.
13
At the same time, however, this Court's prior holdings demonstrate that there can be no question that the State has power adequately to inform itself—through legislative investigation, if it so desires—in order to act and protect its legitimate and vital interests. As this Court said in considering the propriety of the congressonal inquiry challenged in Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273: 'The power * * * to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.' 354 U.S., at 187, 77 S.Ct., at 1179. And, more recently, it was declared that 'The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.' Barenblatt v. United States, 360 U.S. 109, 111, 79 S.Ct. 1081, 1085, 3 L.Ed.2d 1115. It is no less obvious, however, that the legislative power to investigate, broad as it may be, is not without limit. The fact that the general scope of the inquiry is authorized and permissible does not compel the conclusion that the investigatory body is free to inquire into or demand all forms of information. Validation of the broad subject matter under investigation does not necessarily carry with it automatic and wholesale validation of all individual questions, subpoenas, and documentary demands. See, e.g., Watkins v. United States, supra, 354 U.S., at 197—199, 77 S.Ct., at 1184. See also Barenblatt v. United States, supra, 360 U.S., at 127—130, 79 S.Ct., at 1094. When, as in this case, the claim is made that particular legislative inquiries and demands infringe substantially upon First and Fourteenth Amendment associational rights of individuals, the courts are called upon to, and must, determine the permissibility of the challenged actions, Watkins v. United States, supra, 354 U.S., at 198—199, 77 S.Ct., at 1184—1185; '(T)he delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights,' Schneider v. State, 308 U.S. 147, 161, 60 S.Ct. 146, 151, 84 L.Ed. 155. The interests here at stake are of significant magnitude, and neither their resolution nor impact is limited to, or dependent upon, the particular parties here involved. Freedom and viable government are both, for this purpose, indivisible concepts; whatever affects the rights of the parties here, affects all.
II.
14
Significantly, the parties are in substantial agreement as to the proper test to be applied to reconcile the competing claims of government and individual and to determine the propriety of the Committee's demands. As declared by the respondent Committee in its brief to this Court, 'Basically, this case hinges entirely on the question of whether the evidence before the Committee (was) * * * sufficient to show probable cause or nexus between the N.A.A.C.P. Miami Branch, and Communist activities.' We understand this to mean—regardless of the label applied, be it 'nexus,' 'foundation,' or whatever—that it is an essential prerequisite to the validity of an investigation which intrudes into the area of constitutionally protected rights of speech, press, association and petition that the State convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest. Absent such a relation between the N.A.A.C.P. and conduct in which the State may have a compelling regulatory concern, the Committee has not 'demonstrated so cogent an interest in obtaining and making public' the membership information sought to be obtained as to 'justify the substantial abridgment of associational freedom which such disclosures will effect.' Bates v. Little Rock, supra, 361 U.S., at 524, 80 S.Ct., at 417. 'Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.' Ibid.
15
Applying these principles to the facts of this case, the respondent Committee contends that the prior decisions of this Court in Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090; Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115; Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633; and Braden v. United States, 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d 653, compel a result here upholding the legislative right of inquiry. In Barenblatt, Wilkinson, and Braden, however, it was a refusal to answer a question or questions concerning the witness' own past or present membership in the Communist Party which supported his conviction. It is apparent that the necessary preponderating governmental interest and, in fact, the very result in those cases were founded on the holding that the Communist Party is not an ordinary or legitimate political party, as known in this country, and that, because of its particular nature, membership therein it itself a permissible subject of regulation and legislative scrutiny.2 Assuming the correctness of the premises on which those cases were decided, no further demonstration of compelling governmental interest was deemed necessary, since the direct object of the challenged questions there was discovery of membership in the Communist Party, a matter held pertinent to a proper subject then under inquiry.
16
Here, however, it is not alleged Communists who are the witnesses before the Committee and it is not discovery of their membership in that party which is the object of the challenged inquiries. Rather, it is the N.A.A.C.P. itself which is the subject of the investigation, and it is its local president, the petitioner, who was called before the Committee and held in contempt because he refused to divulge the contents of its membership records. There is no suggestion that the Miami branch of the N.A.A.C.P. or the national organization with which it is affiliated was, or is, itself a subversive organization. Nor is there any indication that the activities or policies of the N.A.A.C.P. were either Communist dominated or influenced. In fact, this very record indicates that the association was and is against communism and has voluntarily taken steps to keep Communists from being members. Each year since 1950, the N.A.A.C.P. has adopted resolutions barring Communists from membership in the organization. Moreover, the petitioner testified that all prospective officers of the local organization are thoroughly investigated for Communist or subversive connections and, though subversive activities constitute grounds for termination of association membership, no such expulsions from the branch occurred during the five years preceding the investigation.
17
Thus, unlike the situation in Barenblatt, Wilkinson and Braden, supra, the Committee was not here seeking from the petitioner or the records of which he was custodian any information as to whether he, himself, or even other persons were members of the Communist Party, Communist front or affiliated organizations, or other allegedly subversive groups; instead, the entire thrust of the demands on the petitioner was that he disclose whether other persons were members of the N.A.A.C.P., itself a concededly legitimate and nonsubversive organization.3 Compelling such an organization, engaged in the exercise of First and Fourteenth Amendment rights, to disclose its membership presents, under our cases, a question wholly different from compelling the Communist Party to disclose its own membership. Moreover, even to say, as in Barenblatt, supra, 360 U.S., at 129, 79 S.Ct., at 1094, that it is permissible to inquire into the subject of Communist infiltration of educational or other organizations does not mean that it is permissible to demand or require from such other groups disclosure of their membership by inquiry into their records when such disclosure will seriously inhibit or impair the exercise of constitutional rights and has not itself been demonstrated to bear a crucial relation to a proper governmental interest or to be essential to fulfillment of a proper governmental purpose. The prior holdings that governmental interest in controlling subversion and the particular character of the Communist Party and its objectives outweigh the right of individual Communists to conceal party membership or affiliations by no means require the wholly different conclusion that other groups—concededly legitimate—automatically forfeit their rights to privacy of association simply because the general subject matter of the legislative inquiry is Communist subversion or infiltration. The fact that governmental interest was deemed compelling in Barenblatt, Wilkinson, and Braden and held to support the inquiries there made into membership in the Communist Party does not resolve the issues here, where the challenged questions go to membership in an admittedly lawful organization.
18
Respondent's reliance on Uphaus v. Wyman, supra, as controlling is similarly misplaced. There, this Court upheld the right of the State of New Hampshire, in connection with an investigation of whether 'subversive' persons were within the State, to obtain a list of guests who attended a World Fellowship summer camp located in the State. In Uphaus this Court found that there was demonstrated a sufficient connection between subversive activity—held there to be a proper subject of governmental concern and the World Fellowship, itself, to justify discovery of the guest list; no semblance of such a nexus between the N.A.A.C.P. and subversive activities has been shown here. See III, infra. Moreover, contrary to the facts in this case, the claim to associational privacy in Uphaus was held to be 'tenuous at best,' 360 U.S., at 80, 79 S.Ct., at 1046, since the disputed list was already a matter of public record by virtue of a generally applicable New Hampshire law requiring that places of accommodation, including the camp in question, maintain a guest register open to public authorities. Thus, this Court noted that the registration statute 'made public at the inception the association they (the guests) now wish to keep private.' 360 U.S., at 81, 79 S.Ct., at 1046. Finally, in Uphaus, the State was investigating whether subversive persons were within its boundaries and whether their presence constituted a threat to the State. No such purpose or need is evident here. The Florida Committee is not seeking to identify subversives by questioning the petitioner; apparently it is satisfied that it already knows who they are.
III.
19
In the absence of directly determinative authority, we turn, then, to consideration of the facts now before us. Obviously, if the respondent were still seeking discovery of the entire membership list, we could readily dispose of this case on the authority of Bates v. Little Rock, and N.A.A.C.P. v. Alabama, supra; a like result would follow if it were merely attempting to do piecemeal what could not be done in a single step. Though there are indications that the respondent Committee intended to inquire broadly into the N.A.A.C.P. membership records,4 there is no need to base our decision today upon a prediction as to the course which the Committee might have pursued if initially unopposed by the petitioner. Instead, we rest our result on the fact that the record in this case is insufficient to show a substantial connection between the Miami branch of the N.A.A.C.P. and Communist activities which the respondent Committee itself concedes is an essential prerequisite to demonstrating the immediate, substantial, and subordinating state interest necessary to sustain its right of inquiry into the membership lists of the association.
20
Basically, the evidence relied upon by the respondent to demonstrate the necessary foundation consists of the testimony of R. J. Strickland, an investigator for the Committee and its predecessors, and Arlington Sands, a former association official.
21
Strickland identified by name some 14 persons whom he said either were or had been Communists or members of Communist 'front' or 'affiliated' organizations. His description of their connection with the association was simply that 'each of them has been a member of and/or participated in the meetings and other affairs of the N.A.A.C.P. in Dade County, Florida.' In addition, one of the group was identified as having made, at an unspecified time, a contribution of unspecified amount to the local organization.5
22
We do not know from this ambiguous testimony how many of the 14 were supposed to have been N.A.A.C.P. members. For all that appears, and there is no indicated reason to entertain a contrary belief, each or all of the named persons may have attended no more than one or two wholly public meetings of the N.A.A.C.P., and such attendance, like their membership, to the extent it existed, in the association, may have been wholly peripheral and begun and ended many years prior even to commencement of the present investigation in 1956. In addition, it is not clear whether the asserted Communist affiliations and the association with the N.A.A.C.P., however slight, coincided in time. Moreover, except for passing reference to participation in annual elections, there is no indication that membership carried with it any right to control over policy or activities, much less that any was sought. The reasoning which would find support for the challenged inquiries in Communist attendance at meetings from which no member of the public appears to have been barred is even more attenuated, since the only prerogative seemingly attaching to such attendance was the right to listen to the scheduled speaker or program. Mere presence at a public meeting or bare membership—without more—is not infiltration of the sponsoring organization.
23
It also appears that a number of the 14 persons named by Strickland were no longer even residents of Florida; as to these people, it is difficult to see any basis for supposing that they would be current—much less influential—members of the Miami branch of the N.A.A.C.P., and no other pertinent reason for the inquiry as to them could be found because, as the petitioner testified, the only membership records available related to the then current year.
24
Strickland did refer to one informant as having been instructed to infiltrate the N.A.A.C.P. and 'other organizations.' But any persuasive impact this recitation might otherwise have had is neutralized by the same informant's disclosure that his response to this command was simply to attend N.A.A.C.P. meetings 'on occasions' and by the absence of any other substantial indication of infiltration. This is not a case in which, after a proper foundation has been laid, a Communist is himself interrogated about his own alleged subversive activities or those of the Communist Party, all as part of an inquiry related to what this Court has held to be a legitimate legislative purpose to investigate the activities of the party or its knowing members.
25
The testimony of Sands, the other assertedly important witness, added not even a semblance of anything more convincing with regard to the existence of a connection between subversion and the N.A.A.C.P. Sands, whose officership in the association predated 1950 and who admitted that he was uncertain even as to his then current membership in the N.A.A.C.P., merely corroborated to some extent certain of Strickland's references to attendance at N.A.A.C.P. meetings by a few of the persons identified as Communists. However, this too must have related to some time in the unspecified past, since Sands admitted that he had not even been to an N.A.A.C.P. meeting in two years. Sands also noted that one of the asserted Communists, a lawyer, had represented the association in a 'murder case,' but there is no explanation as to how this fact might indicate or support a conclusion of Communist influence.
26
Nor does the fact that the N.A.A.C.P. has demonstrated its antipathy to communism and an awareness of its threat by passage of annual antisubversion resolutions carry with it any permissible inference that it has, in fact, been infiltrated, influenced, or in any way dominated or used by Communists. Indeed, given the gross improbability of a Communist dominated or influenced organization denouncing communism, the more reasonable inference would seem to be to the contrary.
27
Finally, the Committee can find no support for its inquiry into the membership list from Strickland's suggestion that Sands had once uncertainly told him (Strickland) that one or possibly two of the group of 14 may have 'made a talk' to the local N.A.A.C.P. chapter, again at some unspecified time in the past. There is no indication that the subject of the 'talks' was in any way improper and, in any event, such isolated incidents can not be made to do the work of substantial evidence of subversive influence or infiltration. The same is true of the few additional vague and somewhat unspecific references to other minor and nondirective participation in the affairs of the local group.6
28
This summary of the evidence discloses the utter failure to demonstrate the existence of any substantial relationship between the N.A.A.C.P. and subversive or Communist activities. In essence, there is here merely indirect, less than unequivocal, and mostly hearsay testimony that in years past some 14 people who were asserted to be, or to have been, Communists or members of Communist front or 'affiliated organizations' attended occasional meetings of the Miami branch of the N.A.A.C.P. 'and/or' were members of that branch, which had a total membership of about 1,000.
29
On the other hand, there was no claim made at the hearings, or since, that the N.A.A.C.P. or its Miami branch was engaged in any subversive activities or that its legitimate activities have been dominated or influenced by Communists. Without any indication of present subversive infiltration in, or influence on, the Miami branch of the N.A.A.C.P., and without any reasonable, demonstrated factual basis to believe that such infiltration or influence existed in the past, or was actively attempted or sought in the present—in short without any showing of a meaningful relationship between the N.A.A.C.P., Miami branch, and subversives or subversive or other illegal activities—we are asked to find the compelling and subordinating state interest which must exist if essential freedoms are to be curtailed or inhibited. This we cannot do. The respondent Committee has laid no adequate foundation for its direct demands upon the officers and records of a wholly legitimate organization for disclosure of its membership; the Committee has neither demonstrated nor pointed out any threat to the State by virtue of the existence of the N.A.A.C.P. or the pursuit of its activities or the minimal associational ties of the 14 asserted Communists. The strong associational interest in maintaining the privacy of membership lists of groups engaged in the constitutionally protected free trade in ideas and beliefs may not be substantially infringed upon such a slender showing as here made by the respondent.7 While, of course, all legitimate organizations are the geneficiaries of these protections, they are all the more essential here, where the challenged privacy is that of persons espousing beliefs already unpopular with their neighbors and the deterrent and 'chilling' effect on the free exercise of constitutionally enshrined rights of free speech, expression, and association is consequently the more immediate and substantial. What we recently said in N.A.A.C.P. v. Button, supra, with respect to the State of Virginia is as appears from the record, equally applicable here: 'We cannot close our eyes to the fact that the militant Negro civil rights movement has engendered the intense resentment and opposition of the politically dominant white community * * *.' 371 U.S., at 435, 83 S.Ct., at 339.
30
Of course, a legislative investigation—as any investigation must proceed 'step by step,' Barenblatt v. United States, supra, 360 U.S., at 130, 79 S.Ct., at 1094, but step by step or in totality, an adequate foundation for inquiry must be laid before proceeding in such a manner as will substantially intrude upon and severely curtail or inhibit constitutionally protected activities or seriously interfere with similarly protected associational rights. No such foundation has been laid here. The respondent Committee has failed to demonstrate the compelling and subordinating governmental interest essential to support direct inquiry into the membership records of the N.A.A.C.P.
31
Nothing we say here impairs or denies the existence of the underlying legislative right to investigate or legislate with respect to subversive activities by Communists or anyone else; our decision today deals only with the manner in which such power may be exercised and we hold simply that groups which themselves are neither engaged in subversive or other illegal or improper activities nor demonstrated to have any substantial connections with such activities are to be protected in their rights of free and private association. As declared in Sweezy v. New Hampshire, 354 U.S. 234, 245, 77 S.Ct. 1203, 1209 (opinion of The Chief Justice), 'It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political accociation, and freedom of communication of ideas * * *.'
32
To permit legislative inquiry to proceed on less than an adequate foundation would be to sanction unjustified and unwarranted intrusions into the very heart of the constitutional privilege to be secure in associations in legitimate organizations engaged in the exercise of First and Fourteenth Amendment rights; to impose a lesser standard than we here do would be inconsistent with the maintenance of those essential conditions basic to the preservation of our democracy.
33
The judgment below must be and is reversed.
34
Reversed.
35
Mr. Justice BLACK, concurring.
36
I concur in the Court's opinion and judgment reversing the judgment of the Supreme Court of Florida although, for substantially the same reasons stated by Mr. Justice DOUGLAS in his concurring opinion, I would prefer to reach our decision by a different approach. I agree with Mr. Justice DOUGLAS that the Fourteenth Amendment makes the First Amendment applicable to the States and protects the freedoms of religion, speech, press, assembly, and petition from state abridgment with the same force and to the same degree that the First Amendment protects them from federal abridgment. That, as the cases cited by Mr. Justice DOUGLAS show, is what this Court has previously held. I agree also that these Amendments encompass freedom of the people to associate in an infinite number of organizations including the National Association for the Advancement of Colored People, of which petitioner here was president at the time it was under investigation by the Florida committee. In my view the constitutional right of association includes the privilege of any person to associate with Communists or anti-Communists, Socialists or anti-Socialists, or, for that matter, with people of all kinds of beliefs, popular or unpopular. I have expressed these views in many other cases and I adhere to them now.* Since, as I believe, the National Association for the Advancement of Colored People and its members have a constitutional right to choose their own associates, I cannot understand by what constitutional authority Florida can compel answers to questions which abridge that right. Accordingly, I would reverse here on the ground that there has been a direct abridgment of the right of association of the National Association for the Advancement of Colored People and its members. But, since the Court assumes for purposes of this case that there was no direct abridgment of First Amendment freedoms, I concur in the Court's opinion, which is based on constitutional principles laid down in Schneider v. Irvington, 308 U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939), and later cases of this Court following Schneider.
37
Mr. Justice DOUGLAS, concurring.
38
I join the opinion of the Court, because it is carefully written within the framework of our current decisions. But since the matters involved touch constitutional rights and since I see the Constitution in somewhat different dimensions than are reflected in our decisions, it seems appropriate to set out my views.
39
We deal here with the authority of a State to investigate people, their ideas, their activities. By virtue of the Fourteenth Amendment1 the State is now subject to the same restrictions2 in making the investigation as the First Amendment places on the Federal Government.
40
The need of a referee in our federal system has increased with the passage of time, not only in matters of commerce but in the field of civil rights as well. Today review of both federal and state action threatening individuals' rights is increasingly important if the Free Society envisioned by the Bill of Rights is to be our ideal. For in times of crisis, when ideologies clash, it is not easy to engender respect for the dignity of suspect minorities and for debate of unpopular issues. As the President of Yale University has stated:
41
'We have become too much a nation of lookers and listeners, a nation of spectators. Amidst the easy artificiality of our life, the plethora of substitutes for learning and thinking, the innumerable devices for avoiding or delegating personal responsibility for our opinions, even for having any opinions, the fine edge of our faith has been dulled, our creative powers atrophied.' A. Whitney Griswold, Baccalaureate Address, Yale University, June 8, 1958 (Overbrook Press).3
42
When the State or Federal Government is prohibited from dealing with a subject, it has no constitutional privilege to investigate it. An investigation to permit a legislature properly to perform its powers of internal management is of course allowed. See Barry v. Cunningham, 279 U.S. 597, 613, 49 S.Ct. 452, 455, 73 L.Ed. 867. But otherwise the power to investigate is only an adjunct of the power to legislate—an auxiliary power 'necessary and appropriate to that end.' McGrain v. Daugherty, 273 U.S. 135, 175, 47 S.Ct. 319, 329, 71 L.Ed. 580. Investigation to determine how constitutional laws are being administered marks one limitation. The other is an investigation to determine what constitutional laws should be passed. When the constitutional limits of lawmaking are passed, investigation is out of bounds, apart from the exception noted. See Kilbourn v. Thompson, 103 U.S. 168, 194—200, 26 L.Ed. 377; McGrain v. Daugherty, supra, 273 U.S. 171—175, 47 S.Ct. 329. That is to say, investigations by a legislative committee which 'could result in no valid legislation on the subject' are beyond the pale. Kilbourn v. Thompson, supra, 103 U.S. p. 195, 26 L.Ed. 377. For it misses the whole point of our constitutional history to assume that 'government,' or any branch of government, somehow has rights and powers of its own apart from those necessarily attending the proper performance of its constitutional functions.
43
Joining a lawful organization, like attending a church, is an associational activity that comes within the purview of the First Amendment, which provides in relevant part: 'Congress shall make no law * * * abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.' 'Peaceably to assemble' as used in the First Amendment necessarily involves a coming together, whether regularly or spasmodically. Historically the right to assemble was secondary to the right to petition, the latter being the primary right.4 But today, as the Court stated in De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 260, 81 L.Ed. 278, 'The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.' Assembly, like speech, is indeed essential 'in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means.' Id., p. 365, 57 S.Ct. p. 260. 'The holding of meetings for peaceable political action cannot be proscribed.' Ibid. A Free Society is made up of almost innumerable institutions through which views and opinions are expressed, opinion is mobilized, and social, economic, religious, educational, and political programs are formulated.5
44
Joining groups seems to be a passion with Americans.
45
Schlesinger, The Rise of the City (1933), reviews the zeal with which Americans in the last century became the world's greatest 'joiners':
46
'Now Americans turned with furious zeal to the creation of secret societies but to their own pattern. In the large cities some form of organized social commingling seemed called for to replace the spontaneous friendliness of small rural towns. Liberty and equality this generation was willing to take for granted, but fraternity filled a compelling human need. Moreover, the romantic opportunity to posture before a mystic brotherhood in all the glory of robe, plume and sword restored a sense of self-importance bruised by the anonymity of life amidst great crowds. If further inducement were needed, it was supplied by the provision made by most lodges for sickness and death benefits for their members.
47
'As was to be expected, membership was greatest in the urbanized sections of the country notwithstanding the energy with which the Negroes of the South aped their white brethren and the increasing interest of Western farmers in lodge activities. By the end of the period there were over six million names on the rosters of fraternal bodies. America possessed more secret societies and a larger number of 'joiners' than all other nations.' Id., pp. 288—290.
48
'It is not surprising, therefore, to find that at least five thousand national associations exist in the United States.' Robison, Protection of Associations From Compulsory Disclosure of Membership, 58 Col.L.Rev. 614, 622.
49
A coming together is often necessary for communication—for those who listen as well as for those who speak. Demosthenes, it is said, went to the seashore and declaimed to the waves in order to correct a stammer. But normally a speaker implies an audience. Joining a group is often as vital to freedom of expression as utterance itself. Registering as a student in a school or joining a faculty is as vital to freedom of expression as joining a church is to the free exercise of religion. Joining a political party may be as critical to expression of one's views as hiring reporters is to the establishment of a free press. Some have thought that political and academic affiliations have a preferred position under the due process version of the First Amendment. See Sweezy v. New Hampshire, 354 U.S. 234, 261—267, 77 S.Ct. 1203, 1220, 1 L.Ed.2d 1311 (concurring opinion). But the associational rights protected by the First Amendment are in my view much broader and cover the entire spectrum in political ideology as well as in art, in journalism, in teaching, and in religion.
50
In my view, government is not only powerless to legislate with respect to membership in a lawful organization; it is also precluded from probing the intimacies of spiritual and intellectual relationships in the myriad of such societies and groups that exist in this country, regardless of the legislative purpose sought to be served. '(T)he provisions of the First Amendment * * * of course reach and limit * * * investigations.' Barenblatt v. United States, 360 U.S. 109, 126, 79 S.Ct. 1081, 1092, 3 L.Ed.2d 1115. If that is not true I see no barrier to investigation of newspapers, churches, political parties, clubs, societies, unions, and any other association for their political, economic, social, philosophical, or religious views. If, in its quest to determine whether existing laws are being enforced or new laws are needed, an investigating committee can ascertain whether known Communists or criminals are members of an organization not shown to be engaged in conduct properly subject to regulation, it is but a short and inexorable step to the conclusion that it may also probe to ascertain what effect they have had on the other members. For how much more 'necessary and appropriate' this information is to the legislative purpose being pursued!
51
It is no answer to the conclusion that all such investigations are illegal to suggest that the committee is pursuing a lawful objective in the manner it has determined most appropriate. For, as Laurent Frantz, The First Amendment in the Balance, 71 Yale L.J. 1424, 1441, has so persuasively shown, 'it does not follow that any objective can ever be weighed against an express limitation on the means available for its pursuit. The public interest in the suppression of crime, for example, cannot be weighed against a constitutional provision that accused persons may not be denied the right to counsel.' When otherwise valid legislation is sought to be applied in an unconstitutional manner we do not sustain its application. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. A different test should not obtain for legislative investigations, '(A)ny constitutional limitation serves a significant function only insofar as it stands in the way of something which government thinks ought to be done. Nothing else needs to be prohibited.'6 Frantz, supra, at 1445.
52
For some of us a phase of the problem emerged in United States v. Rumely, 345 U.S. 41, 57—58, 73 S.Ct. 543, 551, 97 L.Ed. 770 (concurring opinion), where several problems were posed. Can the Government damand of a publisher the names of the purchasers of his publications? Would not the spectre of a government agent then look over the shoulder of everyone who reads? Might not the purchase of a book or pamphlet today result in a subpoena tomorrow? Would not the fear of criticism go with every person into the bookstall? If the light of publicity may reach any student, any teacher, would not free inquiry be discouraged? For are there not always books and pamphlets that are critical of the administration or that preach an unpopular policy in domestic or foreign affairs or that are in disrepute in the orthodox school of thought? If the press and its readers were subject to the harassment of hearings, investigations, reports, and subpoenas, government would indeed hold a club over speech and over the press. Recognition of these dangers prompted our decision in Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559, holding unconstitutional an ordinance requiring handbills to disclose the name and address of the distributor or printer. Plainly a legislative committee could not have obtained the same information from the petitioner in that case merely because it was seeking to determine whether Communists were behind the distribution as part of a massive propaganda campaign.
53
The problem was exposed again in Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240, where the press was being investigated. What I said there seems germane here. Since what an editor writes or thinks is none of the Government's business—except, of course, that Congress could punish the breach of a carefully drawn security law; see Near v. Minnesota, 283 U.S. 697, 715—716, 51 S.Ct. 625, 631, 75 L.Ed. 1357—it has no power to investigate the capacities, ideology, prejudices, or politics of those who write the news.
54
'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?' 369 U.S., at 777, 82 S.Ct., at 1054.
55
Bryant v. Zimmerman, 278 U.S. 63, 72, 49 S.Ct. 61, 64, 73 L.Ed. 184, held that the Due Process Clause of the Fourteenth Amendment did not prevent a State from compelling a disclosure of the membership lists of the Ku Klux Klan. That decision was made in 1928 and it is unnecessary to decide now whether its vitality has survived such cases as N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480; and Louisiana v. N.A.A.C.P., 366 U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301, for we distinguished that case in N.A.A.C.P. v. Alabama, supra, 357 U.S. at 465, 78 S.Ct. at 1173, saying, inter alia, 'The decision was based on the particular character of the Klan's activities, involving acts of unlawful intimidation and violence.' Moreover, the incorporation of the First Amendment into the Fourteenth had only recently been adumbrated (see Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138) and the full exposition of the right of association that is part of the periphery of the First Amendment had not yet been made. Indeed Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, which sustained the right of parents to avoid public schools and to put their children in parochial schools, rested in part on the property interest of the parochial schools. Id., pp. 534—535, 45 S.Ct. p. 573.
56
The right of association has become a part of the bundle of rights protected by the First Amendment (see, e.g., N.A.A.C.P. v. Alabama, supra), and the need for a pervasive right of privacy against government intrusion has been recognized, though not always given the recognition it deserves.7 Unpopular groups (N.A.A.C.P. v. Alabama, supra) like popular ones are protected. Unpopular groups if forced to disclose their membership lists may suffer reprisals or other forms of public hostility. N.A.A.C.P. v. Alabama, supra, 357 U.S. p. 462, 78 S.Ct. p. 1171. But whether a group is popular or unpopular, the right of privacy implicit in the First Amendment creates an area into which the Government may not enter.
57
'Freedom of religion and freedom of speech guaranteed by the First Amendment give more than the privilege to worship, to write, to speak as one chooses; they give freedom not to do nor to act as the government chooses. The First Amendment in its respect for the conscience of the individual honors the sanctity of thought and belief. To think as one chooses, to believe what one wishes are important aspects of the constitutional right to be let alone.' Public Utilities Comm'n, etc., v. Pollak, 343 U.S. 451, 467—468, 72 S.Ct. 813, 823, 96 L.Ed. 1068 (dissenting opinion).
58
There is no other course consistent with the Free Society envisoned by the First Amendment. For the views a citizen entertains, the beliefs he harbors, the utterances he makes, the ideology he embraces and the people he associates with are no concern of government.8 That article of faith marks indeed the main difference between the Free Society which we espouse and the dictatorships both on the Left and on the Right.
59
As Mr. Justice Black said (dissenting) in Barenblatt v. United States, supra 360 U.S. 150—151, 79 S.Ct. 1105:
60
'The fact is that once we allow any group which has some political aims or ideas to be driven from the ballot and from the battle for men's minds because some of its members are bad and some of its tenets are illegal, no group is safe. Today we deal with Communists or suspected Communists. In 1920, instead, the New York Assembly suspended duly elected legislators on the ground that, being Socialists, they were disloyal to the country's principles. In the 1830's the Masons were hunted as outlaws and subversives, and abolitionists were considered revolutionaries of the most dangerous kind in both North and South. Earlier still, at the time of the universally unlamented alien and sedition laws, Thomas Jefferson's party was attacked and its members were derisively called 'Jacobins.' Fisher Ames described the party as a 'French faction' guilty of 'subversion' and 'officered, regimented and formed to subordination.' Its members, he claimed, intended to 'take arms against the laws as soon as they dare.' History should teach us then, that in times of high emotional excitement minority parties and groups which advocate extremely unpopular social or governmental innovations will always be typed as criminal gangs and attempts will always be made to drive them out. It was knowledge of this fact, and of its great dangers, that caused the Founders of our land to enact the First Amendment as a guarantee that neither Congress nor the people would do anything to hinder or destroy the capacity of individuals and groups to seek converts and votes for any cause, however radical or unpalatable their principles might seem under the accepted notions of the time.'
61
If a group is engaging in acts or a course of conduct that is criminal, it can be prosecuted, and it and its members can be investigated, save as the Self-Incrimination Clause of the Fifth Amendments sets up a barrier. In Louisiana v. N.A.A.C.P., supra, a state statute requiring the N.A.A.C.P. to register and disclose its membership lists was involved. We denied enforcement of that law, saying that we are 'in an area where, as Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231, emphasized, any regulation must be highly eslective in order to survive challenge under the First Amendment.' 366 U.S., at 296, 81 S.Ct., at 1335. And we added:
62
'At one extreme is criminal conduct which cannot have shelter in the First Amendment. At the other extreme are regulatory measures which, no matter how sophisticated, cannot be employed in purpose or in effect to stifle, penalize, or curb the exercise of First Amendment rights.' Id., p. 297, 81 S.Ct., p. 1336.
63
The Florida court in this case said that a requirement of nondisclosure would provide an 'ideological asylum for those who would destroy by violence the very foundations upon which their governmental sanctuary stands.' 126 So.2d 129, 132. But there is no showing here that the N.A.A.C.P. is engaged in any criminal activity of any kind whatsoever. The Florida Supreme Court in Graham v. Florida Legislative Investigation Committee, 126 So.2d 133, 136, conceded that the N.A.A.C.P. is 'an organization perfectly legitimate but allegedly unpopular in the community.' Whether it has members who have committed crimes is immaterial. One man's privacy may not be invaded because of another's perversity. If the files of the N.A.A.C.P. can be ransacked because some Communists may have joined it, then all walls of privacy are broken down. By that reasoning the records of the confessional can be ransacked because a 'subversive' or a criminal was implicated. By that reasoning an entire church can be investigated because one member was an ideological stray or had once been a Communist or because the minister's sermon paralleled the party line. By the reasoning the files of any society or club can be seized because members of a 'subversive' group had infiltrated it.
64
In sum, the State and the Federal Governments, by force of the First Amendment, are barred from investigating any person's faith or ideology by summoning him or by summoning officers or members of his society, church, or club.
65
Government can intervene only when belief, thought, or expression moves into the realm of action that is inimical to society. That was Jefferson's view. In his Bill for Establishing Religious Freedom he spoke primarily of religious liberty but in terms applicable to freedom of the mind in all of its aspects. It was his view that in the Free Society men's ideas and beliefs, their speech and advocacy are no proper concern of government. Only when they become brigaded with action can government move against them. Jefferson said:9
66
'* * * that the opinions of men are not the object of civil government, nor under its jurisdiction; that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy, which at once detroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or suffer from his own; that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order; and finally, that truth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict unless by human interposition disarmed of her natural weapons, free argument and debate; errors ceasing to be dangerous when it is permitted freely to contradict them.'
67
Madison too knew that tolerance for all ideas across the spectrum was the only true guarantee of freedom of the mind:10
68
'Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects * * *.'
69
Once the investigator has only the conscience of government as a guide, the conscience can become 'ravenous,' as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show:
70
'MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, and I am damned for not doing according to mine, will you come with me, for fellowship?
71
'CRANMER: So those of us whose names are there are damned, Sir Thomas?
72
'MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one.
73
'CRANMER: Then the matter is capable of question?
74
'MORE: Certainly.
75
'CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign.
76
'MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.' Id., pp. 132—133.
77
Where government is the Big Brother,11 privacy gives way to surveillance. But our commitment is otherwise. By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts.12
78
Mr. Justice HARLAN, whom Mr. Justice CLARK, Mr. Justice STEWART, and Mr. Justice WHITE join, dissenting.
79
The difficulties with this decision will become apparent once the case is deflated to its true size.
80
The essential facts are these. For several years before petitioner was convicted of this contempt, the respondent, a duly authorized Committee of the Florida Legislature, had been investigating alleged Communist 'infiltration' into various organizations in Dade County, Florida, including the Miami Branch of the National Association for the Advancement of Colored People.1 There was no suggestion that the branch itself had engaged in any subversive or other illegal activity, but the Committee had developed information indicating that 14 of some 52 present or past residents of Dade County, apparently at one time or another members of the Communist Party or connected organizations,2 were or had been members or had 'participated in the meetings and other affairs' of this local branch of the N.A.A.C.P.
81
Having failed to obtain from prior witnesses, other than its own investigator, any significant data as to the truth or falsity of this information, the Committee, in 1959, summoned the petitioner to testify, also requiring that he bring with him the membership records of the branch. Petitioner, a Negro clergyman, was then and for the past five years had been president of the local branch, and his custodianship of the records stands conceded.
82
On his appearance before the Committee petitioner was asked to consult these records himself and, after doing so, to inform the Committee which, if any, of the 52 individually identified persons were or had been members of the N.A.A.C.P. Miami Branch. He declined to do this on two grounds. First, he said that the N.A.A.C.P. itself had already undertaken action 'excluding from our ranks any and all persons who may have subversive tendencies.' To substantiate this, petitioner furnished the Committee with copies of 'Anti-Communism' resolutions which he stated had been adopted each year since 1950 at the Association's annual convention. Second, petitioner protested that production of the membership records would violate 'a legal right of ours, the right of association.' At the same time the petitioner expressed willingness to testify from recollection as to the membership or nonmembership in the local branch of any persons that the Committee might name to him.
83
The petitioner was then asked to state from recollection the N.A.A.C.P. membership vel non of the 14 persons mentioned above, photographs of each being exhibited to him. But he was unable to supply any information, disclaiming even knowledge of most of the names. He was then again asked to utilize the membership records as a testimonial aid, it having been earlier made clear to him that the Committee itself did not propose to look at the records:
84
'(By Committee counsel). Now, are you aware of the fact, Reverend, that we're not actually asking you to turn over to this Committee those records, but that we're asking that you bring those records here for the purpose of consulting them yourself and telling us, under oath, after consulting them, whether or not certain people who we will name are members, or have been members of your organization?
85
'(By the witness). I'm aware of it.'
86
Petitioner persisted in his refusal. This contempt charge and conviction, and its affirmance by the Supreme Court of Florida, 126 So.2d 129, followed.
I.
87
This Court rests reversal on its finding that the Committee did not have sufficient justification for including the Miami Branch of the N.A.A.C.P. within the ambit of its investigation—that, in the language of our cases (Uphaus v. Wyman, 360 U.S. 72, 79, 79 S.Ct. 1040, 1045, 3 L.Ed.2d 1090), an adequate 'nexus' was lacking between the N.A.A.C.P. and the subject matter of the Committee's inquiry.
88
The Court's reasoning is difficult to grasp. I read its opinion as basically proceeding on the premise that the governmental interest in investigating Communist infiltration into admittedly nonsubversive organizations, as distinguished from investigating organizations themselves suspected of subversive activities, is not sufficient to overcome the countervailing right to freedom of association. Ante, pp. 547—549. On this basis 'nexus' is seemingly found lacking because it was never claimed that the N.A.A.C.P. Miami Branch had itself engaged in subversive activity ante, pp. 554—555, and because none of the Committee's evidence relating to any of the 52 alleged Communist Party members was sufficient to attribute such activity to the local branch or to show that it was dominated, influenced, or used 'by Communists.' Ante, pp. 895—898.
89
But, until today, I had never supposed that any of our decisions relating to state or federal power to investigate in the field of Communist subversion could possibly be taken as suggesting any difference in the degree of governmental investigatory interest as between Communist infiltration of organizations and Communist activity by organizations. See, e.g., Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (infiltration into education); Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633, and Braden v. United States, 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d 653 (infiltration into basic industries); Russell v. United States, 369 U.S. 749, 773, 82 S.Ct. 1038, 1052, 8 L.Ed.2d 240 (infiltration of newspaper business).
90
Considering the number of congressional inquiries that have been conducted in the field of 'Communist infiltration' since the close of World War II, affecting such diverse interests as 'labor, farmer, veteran, professional, youth, and motion picture groups' (Barenblatt, supra, at 119, 79 S.Ct. at 1089), it is indeed strange to find the strength of state interest in the same type of investigation now impugned. And it is not amiss to recall that government evidence in Smith Act prosecutions has shown that the sensitive area of race relations has long been a prime target of Communist efforts at infiltration. See Scales v. United States, 367 U.S. 203, 235, 245, 249 n. 26, 251, 255—256, 81 S.Ct. 1469, 1500, 6 L.Ed.2d 782.
91
Given the unsoundness of the basic premise underlying the Court's holding as to the absence of 'nexus,' this decision surely falls of its own weight. For unless 'nexus' requires an investigating agency to prove in advance the very things it is trying to find out, I do not understand how it can be said that the information preliminarily developed by the Committee's investigator was not sufficient to satisfy, under any reasonable test, the requirement of 'nexus.'
92
Apart from this, the issue of 'nexus' is surely laid at rest by the N.A.A.C.P.'s own 'Anti-Communism' resolution, first adopted in 1950, which petitioner had voluntarily furnished the Committee before the curtain came down on his examination:
93
'ANTI-COMMUNISM
94
'Whereas, certain branches of the National Association for the Advancement of Colored People are being rocked by internal conflicts between groups who follow the Communist line and those who do not, which threaten to destroy the confidence of the public in the Association and which will inevitably result in its eventual disruption; and
95
'Whereas, it is apparent from numerous attacks by Communists in their official organs 'The Daily Worker' and 'Political Affairs' upon officials of the Association that there is a well-organized, nationwide conspiracy by Communists either to capture or split and wreck the NAACP; therefore be it
96
'Resolved, that this Forty-First Convention of the National Association for the Advancement of Colored People go on record as unequivocally condemning attacks by Communists and their fellow-travelers upon the Association and its officials, and in order to safeguard the good-name of the Association, promote and develop unity, eliminate internal ideological friction, increase the membership and build the necessary power effectively to wage the fight for civil rights, herewith, call upon, direct and instruct the National Board of Directors to appoint a committee to investigate and study the ideological composition and trends of the membership and leadership of the local units with a view to determining causes of the aforementioned conflicts, confusion and loss of membership; be it further
97
'Resolved, that this Convention go on record as directing and instructing the Board of Directors to take the necessary action to eradicate such infiltration, and if necessary to suspend and reorganize, or lift the charter and expel any unit, which, in the judgment of the Board of Directors, upon a basis of the findings of the aforementioned investigation and study of local units comes under Communist or other political control and combination.' (Emphasis added.)
98
It hardly meets the point at issue to suggest, as the Court does (ante, p. 554), that the resolution only serves to show that the Miami Branch was in fact free of any Communist influences unless self-investigation is deemed constitutionally to block official inquiry.
II.
99
I also find it difficult to see how this case really presents any serious question as to interference with freedom of association. Given the willingness of the petitioner to testify from recollection as to individual memberships in the local branch of the N.A.A.C.P., the germaneness of the membership records to the subject matter of the Committee's investigation, and the limited purpose for which their use was sought—as an aid to refreshing the witness' recollection, involving their divulgence only to the petitioner himself (supra, pp. 577—578)—this case of course bears no resemblance whatever to N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488, or Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480. In both of those cases the State had sought general divulgence of local N.A.A.C.P. membership lists without any showing of a justifying state interest. In effect what we are asked to hold here is that the petitioner had a constitutional right to give only partial or inaccurate testimony, and that indeed seems to me the true effect of the Court's holding today.
100
I have scrutinized this record with care to ascertain whether any unfairness in the Committee's proceedings could be detected. I can find none. In the questioning and treatment of witnesses, explanations of pertinency, rulings on objections, and general conduct of the inquiry, I perceive nothing in this record which savors of other than a decorous attitude on the part of the Committee and a lawyer like and considerate demeanor on the part of its counsel. Nor do I find in the opinion of the Florida Supreme Court the slightest indication of anything other than a conscientious application of the constitutional principles governing cases such as this.
101
There can be no doubt that the judging of challenges respecting legislative or executive investigations in this sensitive area demands the utmost circumspection on the part of the courts, as indeed the Florida Supreme Court has itself recognized. See Graham v. Florida Legislative Investigation Comm., 126 So.2d 133, 135. But this also surely carries with it the reciprocal responsibility of respecting legitimate state and local authority in this field. With all respect, I think that in deciding this case as it has the Court has failed fully to keep in mind that responsibility.
102
I would affirm.
103
Mr. Justice WHITE, dissenting.
104
In my view, the opinion of the Court represents a serious limitation upon the Court's previous cases dealing with this subject matter and upon the right of the legislature to investigate the Communist Party and its activities. Although one of the classic and recurring activities of the Communist Party is the infiltration and subversion of other organizations, either openly or in a clandestine manner, the Court holds that even where a legislature has evidence that a legitimate organization is under assault and even though that organization is itself sounding open and public alarm, an investigating committee is nevertheless forbidden to compel the organization or its members to reveal the fact, or not, of membership in that organization of named Communists assigned to the infiltrating task.
105
While the Court purports to be saving such a case for later consideration, it is difficult for me to understand how under today's decision a communist in the process of performing his assigned job could be required to divulge not only his membership in the Communist Party but his membership or activities in the target organization as well. The Court fails to articulate why the State's interest is any the more compelling or the associational rights any the less endangered when a known Communist is asked whether he belongs to a protected association than here when the organization is asked to confirm or deny that membership. As I read the Court's opinion the exposed Communist might well, in the name of the associational freedom of the legitimate organization and of its members including himself, successfully shield his activities from legislative inquiry. Thus to me the decision today represents a marked departure from the principles of Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115, and like cases.
106
On the other hand, should a legislature obtain ostensibly reliable information about the penetration of Communists into a particular organization, information which in the course of things would be placed on public record like the testimony here, there could no longer be a weighty interest on the part of that organization to refuse to verify that information or to brand it as false. This is particularly true here where an officer of the association is willing to identify persons from memory and where the organization itself has called upon its own members to root out Communists who are bent upon using the association to serve the goals of the Communist Party. Unbending resistance to answering, one way or the other, a legislative committee's limited inquiries in the face of already public information to the same effect reduces the association's interest in secrecy to sterile doctrine. I would have thought that the freedom of association which is and should be entitled to constitutional protection would be promoted, not hindered, by disclosure which permits members of an organization to know with whom they are associating and affords them the opportunity to make an intelligent choice as to whether certain of their associates who are Communists should be allowed to continue their membership. In these circumstances, I cannot join the Court in attaching great weight to the organization's interest in concealing the presence of infiltrating Communists, if such be the case.
107
The net effect of the Court's decision is, of course, to insulate from effective legislative inquiry and preventive legislation the time-proven skills of the Communist Party in subverting and eventually controlling legitimate organizations. Until such a group, chosen as an object of Communist Party action, has been effectively reduced to vassalage, legislative bodies may seek no information from the organization under attack by dutybound Communists. When the job has been done and the legislative committee can prove it, it then has the hollow privilege of recording another victory for the Communist Party, which both Congress and this Court have found to be an organization under the direction of a foreign power, dedicated to the overthrow of the Government if necessary by force and violence. I respectfully dissent.
1
The prefatory portions of the statute noted the existence of the predecessor committees, recited that the 1957 committee had 'been prevented' from conducting its investigations by 'the deliberate and almost unanimous action of the witnesses before it in resorting to litigation to frustrate said committee's investigations' and asserted that as a result the committee was 'mired down' in numerous lawsuits; the committees' records and reports were said to disclose 'a great abuse of the judicial processes,' as well as violent or illegal conduct, or the threat thereof, and Communist attempts to 'agitate and engender ill-will between the races.' The enactment concluded that 'there still exists the same grave and pressing need for such a committee to exist * * * to continue and complete the above two committees' work, and to participate in and contest the efforts represented by the above referred to litigation to whittle away further at this State's rights and sovereignty, and to be ever ready to investigate any agitator who may appear in Florida in the interim (between legislative sessions).'
2
See, e.g., Barenblatt v. United States, 360 U.S. 109, 127 128, 79 S.Ct. 1081, 3 L.Ed.2d 1115. Thus, this Court 'has upheld federal legislation aimed at the Communist problem which in a different context would certainly have raised constitutional issues of the gravest character.' Id., at 128, 79 S.Ct., at 1094. See also Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1, 88—105, 81 S.Ct. 1357, 6 L.Ed.2d 625.
3
The Florida Supreme Court, in a companion case, Graham v. Florida Legislative Investigation Committee, 126 So.2d 133, 136, characterized the N.A.A.C.P. as 'an organization perfectly legitimate but allegedly unpopular in the community.' Interestingly, in Graham, which arose out of the very same hearings held on the same days as here involved, the Florida court, apparently on the same record we now have before us, upheld the Fourteenth Amendment claims of a witness, not himself asserted to have subversive connections, who refused to answer questions going to his own membership in the N.A.A.C.P. The court there took notice of the 'considerable' evidence of possible or probable reprisals and deterrent effect on the N.A.A.C.P. resulting from involuntary disclosure of affiliation with the organization. Id., at 134—135.
4
Interrogation was not to be confined simply to ascertaining whether or not the 14 persons, first named by Strickland, the Committee investigator, were members of the N.A.A.C.P. Strickland had named 38 other persons about whom inquiry was to be made, and, even more significantly, the Committee counsel declared that he had 'a lot of other people' he wanted to ask about.
5
It is apparent that no impetus to relevant legislative interest or need can be garnered from Strickland's additional identification of a group of 33 alleged Communists or five more asserted card-carrying party members since these individuals were in no way evidentially connected with the N.A.A.C.P., locally or nationally. Were it otherwise, the mere demonstration of the existence of local and extant Communists would always support a demand for membership lists of any organization which might be thought to be an object of infiltration, and the constitutional guarantees of privacy of association and assembly would become meaningless.
6
For example, on retaking the stand, Strickland said that Sands had told him that one of the 14 had been a member of the N.A.A.C.P. prior to 1950 and that another had 'delivered' N.A.A.C.P. 'leaflets'; there was also separate testimony that another was believed to have been an N.A.A.C.P. member 'at one time.' These statements and scattered allusions to a few of the 14 'possibly' having been 'seen' at N.A.A.C.P. public meetings obviously cannot support infringement of constitutional rights.
7
There is here even less of a connection with subversive activities than was shown in Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311, in which, on grounds not here relevant, The Chief Justice, writing for four members of the Court, deemed the inquiry improper. There the State Attorney General, as part of an investigation of subversive activities, sought to question a witness who, though he denied that he himself was a Communist, had 'a record of affiliation with groups cited by the Attorney General of the United States or the House Un-American Activities Committee,' 354 U.S. at 255, 261, 77 S.Ct., at 1214, 1217 (concurring opinion). The contested questions related, inter alia, to the activities of third persons in the Progressive Party and 'considerable sworn testimony (had) been given in (the) investigation to the effect that the Progressive Party in New Hampshire (had) been heavily infiltrated by members of the Communist Party and that the policies and purposes of the Progressive Party have been directly influenced by members of the Communist Party.' Id., at 265, 77 S.Ct., at 1219 (quoting from state court opinion). The concurring opinion of Mr. Justice Frankfurter, in which Mr. Justice Harlan joined, declared with respect to this supporting demonstration that 'the inviolability of privacy belonging to a citizen's political loyalties has so overwhelming an importance to the well-being of our kind of society that it cannot be constitutionally encroached upon on the basis of so meagre a counter-vailing interest of the State as may be argumentatively found in the remote, shadowy threat to the security of New Hampshire allegedly presented in the origins and contributing elements of the Progressive Party and in petitioner's relations to these.' Ibid. The concurring opinion concluded that 'Whatever, on the basis of massive proof and in the light of history, of which this Court may well take judicial notice, be the justification for not regarding the Communist Party as a conventional political party, no such justification has been afforded in regard to the Progressive Party. A foundation in fact and reason would have to be established far weightier than the intimations that appear in the record to warrant such a view of the Progressive Party. This precludes the questioning that petitioner resisted in regard to that Party.' Id., at 266, 77 S.Ct., at 1220. Precisely the same reasoning applies here. While in Sweezy it did not clearly appear that the persons about whom inquiry was made were themselves asserted to have Communist associations, the interest in political and associational privacy was no stronger there than here; if anything, the fact that the legitimate organization itself—rather than a witness suspected of subversive ties—is here put to questioning through its president and that it is its own membership records which are the objects of scrutiny makes the claimed right worthy of more—not less protection.
*
E.g., American Communications Assn. v. Douds, 339 U.S. 382, 445, 70 S.Ct. 674, 707, 94 L.Ed. 925 (1950); Dennis v. United States, 341 U.S. 494, 579, 71 S.Ct. 857, 902, 95 L.Ed. 1137 (1951); Barenblatt v. United States, 360 U.S. 109, 134, 79 S.Ct. 1081, 1097, 3 L.Ed.2d 1115 (1959); Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 137, 147, 81 S.Ct. 1357, 1437, 6 L.Ed.2d 625 (1961).
1
See Brennan, The Bill of Rights and the States, 36 N.Y.U.L.Rev. 761, 770—778.
2
Some have believed that these restraints as applied to the States through the Due Process Clause of the Fourteenth Amendment are less restrictive on them than they are on the Federal Government. That is the view of my Brother Harlan. See Roth v. United States, 354 U.S. 476, 501, 506, 77 S.Ct. 1304, 1320, 1 L.Ed.2d 1498; Smith v. California, 361 U.S. 147, 169, 80 S.Ct. 215, 227, 4 L.Ed.2d 205. Mr. Justice Jackson expressed the same view in Beauharnais v. Illinois, 343 U.S. 250, 288, 72 S.Ct. 725, 746, 96 L.Ed. 919. And compare the opinions of Justices Holmes and Brandeis in Gitlow v. New York, 268 U.S. 652, 672, 45 S.Ct. 625, 632, 69 L.Ed. 1138, and Whitney v. California, 274 U.S. 357, 372, 47 S.Ct. 641, 647, 71 L.Ed. 1095. But that view has not prevailed. The Court has indeed applied the same First Amendment requirements to the States as to the Federal Government.
As stated by Mr. Justice Black in Speiser v. Randall, 357 U.S. 513, 530, 78 S.Ct. 1332, 1352, 2 L.Ed.2d 1460 (concurring opinion):
'(T)he First Amendment * * * of course is applicable in all its particulars to the States. See, e.g., Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302; Poulos v. State of New Hampshire, 345 U.S. 395, 396—397, 73 S.Ct. 760, 762, 97 L.Ed. 1105; Everson v. Board of Education, 330 U.S. 1, 8, 67 S.Ct. 504, 507, 91 L.Ed. 711; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628; Douglas v. City of Jeannette, 319 U.S. 157, 162, 63 S.Ct. 877, 880, 87 L.Ed. 1324; Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; Murdock v. Pennsylvania, 319 U.S. 105, 109, 63 S.Ct. 870, 873, 87 L.Ed. 1292; Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 768, 86 L.Ed. 1031; Bridges v. State of California, 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed. 192; Cantwell v. State of Connecticut, 310 U.S. 296, 303, (60 S.Ct. 900, 84 L.Ed. 1213); Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155; Lovell v. City of Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949; De Jonge v. State of Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278; Gitlow v. State of New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138.'
These cases are inconsistent with the view that First Amendment rights protected against state invasion by the Due Process Clause of the Fourteenth Amendment are a watered-down version of what the First Amendment guarantees.
3
See Reich, Mr. Justice Black and the Living Constitution, 76 Harv.L.Rev. 673, 727—750.
4
Corwin, the Constitution and What it Means Today (1958), p. 203; Arendt, On Revolution (1963), p. 25.
5
Jefferson's grand design included a division 'into hundreds'—a viable ward system through which the people exercised their rights of sovereignty. Letter to John Tyler, May 26, 1810:
I have indeed two great measures at heart, without which no republic can maintain itself in strength. 1. That of general education, to enable every man to judge for himself what will secure or endanger his freedom. 2. To divide every county into hundreds, of such size that all the children of each will be within reach of a central school in it. But this division looks to many other fundamental provisions. Every hundred, besides a school, should have a justice of the peace, a constable and a captain of militia. These officers, or some others within the hundred, should be a corporation to manage all its concerns, to take care of its roads, its poor, and its police by patrols, etc. (as the selectmen of the eastern townships). Every hundred should elect one or two jurors to serve where requisite, and all other elections should be made in the hundreds separately, and the votes of all the hundreds be brought together. Our present captaincies might be declared hundreds for the present, with a power to the courts to alter them occasionally. These little republics would be the main strength of the great one. We owe to them the vigor given to our revolution in its commencement in the Eastern States, and by them the Eastern States were enabled to repeal the embargo in opposition to the Middle, Southern and Western States, and their large and lubberly division into counties which can never be assembled. General orders are given out from a centre to the foreman of every hundred, as to the sergeants of an army, and the whole nation is thrown into energetic action, in the same direction in one instance and as one man, and becomes absolutely irresistible. Could I once see this I should consider it as the dawn of the salvation of the republic, and say with old Simeon, 'nunc dimittis Domine." 12 Writings of Thomas Jefferson (Mem. ed. 1904) 393—394.
And see letter to John Cartwright, June 5, 1824, 16 Jefferson, op cit., supra, 42, 44—46; letter to Samuel Kercheval, July 12, 1816, 15 Jefferson, op cit., supra, 32—44; and letter to Samuel Kercheval, September 5, 1816. Id., at 70—71.
6
'But the advocate of 'judicial restraint' will insist that where there is room for a reasonable difference of opinion between * * * (the legislative body) and the Court as to whether certain action violates the first amendment, * * * (the legislature's) view should take precedence. There are excellent reasons why it should not. First of all, 'Congress shall make no law * * *' is an obvious and express effort to restrain * * * (legislative) power. If that restraint is to be effective, then * * * (the legislature) is the least appropriate body in the world to be accorded the final word as to what it means. And, while I have no desire to re-wage the general battle for judicial review, the evidence is reasonably clear that the first amendment was proposed with the express expectation and intention that the courts would enforce it.' Id., at 1447—1448.
7
See generally Beaney, The Constitutional Right to Privacy in the Supreme Court, 1962 Supreme Court Review, 212; Dykstra, The Right Most Valued by Civilized Man, 6 Utah L.Rev. 305; Robison, Protection of Associations from Compulsory Disclosure of Membership, 58 Col.L.Rev. 614; Frantz, The First Amendment in the Balance, 71 Yale L.J. 1424.
A part of the philosophical basis of this right has its roots in the common law. As Warren and Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193, 196, stated:
'The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.' See also Olmstead v. United States, 277 U.S. 438, 471, 472—479, 48 S.Ct. 564, 572, 72 L.Ed. 944 (dissenting opinion, Brandeis, J.); Poe v. Ullman, 367 U.S. 497, 509, 515—522, 81 S.Ct. 1752, 1759, 6 L.Ed.2d 989 (dissenting opinion).
Whether the problem involves the right of an individual to be let alone in the sanctuary of his home or his right to associate with others for the attainment of lawful purposes, the individual's interest in being free from governmental interference is the same, and, except for the limited situation where there is 'probable cause' for believing that he is involved in a crime, the government's disability is equally complete.
8
As to problems raised when disclosure of members of a political organization which represents a foreign government is required, see Communist Party of United States v. Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625.
9
The Works of Thomas Jefferson (Fed. ed. 1904), Vol. 2, pp. 440—441.
10
Federalist, No. 51.
11
'Outside, even through the shut window pane, the world looked cold. Down in the street little eddies of wind were whirling dust and torn paper into spirals, and though the sun was shining and the sky a harsh blue, there seemed to be no color in anything except the posters that were plastered everywhere. The black-mustachio'd face gazed down from every commanding corner. There was one on the house front immediately opposite. BIG BROTHER IS WATCHING YOU, the caption said, while the dark eyes looked deep into Winston's own. Down at street level another poster, torn at one corner, flapped fitfully in the wind, alternately covering and uncovering the single word INGSOC. In the far distance a helicopter skimmed down between the roofs, hovered for an instant like a blue-bottle, and darted away again with a curving flight. It was the Police Patrol, snooping into people's windows. The patrols did not matter, however. Only the Thought Police mattered.' Orwell, Nineteen Eighty-Four (1949), 4.
12
'Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They bolieved liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is in inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. * * *'
'Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. * * *' Whitney v. California, 274 U.S. 357, 375, 377, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (concurring opinion of Mr. Justice Brandeis).
1
We are told by counsel for the Committee, without contradiction by the petitioner, that the investigations of the predecessor committees have included the activities of such persons and organizations as John Casper, the Ku Klux Klan, and the Seaboard White Citizens Council.
2
The Committee's information as to such membership has not been challenged in this case.
| 23
|
372 U.S. 605
83 S.Ct. 925
10 L.Ed.2d 8
STATE TAX COMMISSION OF UTAH, Petitioner,v.PACIFIC STATES CAST IRON PIPE COMPANY.
No. 178.
Argued March 20, 1963.
Decided April 1, 1963.
F. Burton Howard, Salt Lake City, Utah, for petitioner.
C.M. Gilmour, Salt Lake City, Utah, for respondent.
PER CURIAM.
1
Respondent, a Nevada corporation qualified to do business in Utah, manufactures cast-iron pipe and related items in Provo, Utah, and sells its products throughout the Western States. Prices set by respondent are for the goods delivered at a specific job site, and interstate delivery is usually made by common carrier or in respondents's own equipment. The sales here involved occurred in a different manner. In each case the material was manufactured to meet the specifications of specific out-of-state jobs. The contract called for out-of-state shipment, and respondent set a destination price which included the going common carrier freight charges between the two points involved. But delivery was made and title passed to the purchaser at respondent's foundry in Provo. The purchaser then transported the pipe with its own equipment to the predetermined out-of-state destination. The common carrier tariff was credited to the purchaser.
2
The Utah Tax Commission imposed upon respondent a sales tax deficiency covering these sales.
3
The Supreme Court of Utah reversed the Tax Commission, on the grounds that the certainty of interstate shipment made the imposition of the tax on these shipments unconstitutional under the Commerce clause. 13 Utah 2d 113, 369 P.2d 123. We reverse its judgment on the authority of International Harvester Co. v. Department of Treasury, 322 U.S. 340, 345, 64 S.Ct. 1019, 88 L.Ed. 1313, which holds on facts close to those of this case that a State may levy and collect a sales tax, since the passage of title and delivery to the purchaser took place within the State.
4
Reversed.
| 78
|
372 U.S. 597
83 S.Ct. 926
10 L.Ed.2d 1
WEYERHAEUSER STEAMSHIP COMPANY, Petitioner,v.UNITED STATES.
No. 65.
Argued Feb. 18, 1963.
Decided April 1, 1963.
Henry R. Rolph, San Francisco, Cal., for petitioner.
Anthony L. Mondello, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
In September of 1955 the United States Army Dredge Pacific and the petitioner's vessel F. E. Weyerhaeuser were in a collision off the Oregon coast. To recover for its resultant damages the petitioner brought this action against the United States under the Public Vessels Act.1 A cross-libel was filed, and the District Court after a hearing found that the collision had occurred through the mutual fault of both vessels. Applying the settled admiralty rule of divided damages, the court held that each party was entitled to recover from the other one-half of its provable damages and court costs. 174 F.Supp. 663 supplemented at 178 F.Supp. 496.
2
A United States Civil Service employee aboard the Pacific, Reynold E. Ostrom, had sustained personal injuries in the collision. He had received compensation for these injuries under the Federal Employees' Compensation Act,2 and had then filed a suit against the petitioner to recover damages. That lawsuit was subsequently settled by the payment to Ostrom of $16,000 by the petitioner, and Ostrom then repaid to the United States the amount which had previously been awarded him as statutory compensation, as required by the Compensation Act.3
3
The United States objected to the inclusion, as part of the petitioner's damages from the collision, of the $16,000 which the petitioner had paid to Ostrom. The Government stipulated that the amount was a reasonable settlement of Ostrom's claim, and agreed that such a payment would ordinarily be includible as a proper item of the damages to be divided pursuant to the accepted admiralty formula. The Government took the position, however, that with respect to the amount paid Ostrom the established admiralty rule has been qualified by § 7(b) of the Federal Employees' Compensation Act, which provides that the liability of the United States under the Act for
4
'injury or death of an employee shall be exclusive, and in place, of all other liability of the United States or such instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and anyone otherwise entitled to recover damages from the United States * * * on account of such injury or death, in any direct judicial proceedings in a civil action or in admiralty, or by proceedings, whether administrative or judicial, under any other workmen's compensation law or under any Federal tort liability statute * * *.'4
5
The District Court rejected the Government's argument and entered a decree which recognized the amount paid by the petitioner to Ostrom as part of the petitioner's provable damages from the collision. The Court of Appeals reversed, remanding the case to the District Court with directions to recompute the damages after excluding the Ostrom settlement, holding that the exclusive liability provision of § 7(b) of the Compensation Act precluded any liability of the United States on account of the petitioner's payment for Ostrom's personal injuries. 294 F.2d 179.
6
We granted certiorari to consider the single question whether the historic admiralty rule of divided damages in mutual fault collisions has been qualified, as the Court of Appeals held, by the exclusive liability provision of the federal compensation statute. 369 U.S. 810, 82 S.Ct. 688, 7 L.Ed.2d 611. For the reasons stated in this opinion, we hold that this provision of the compensation statute does not so limit the admiralty rule, and we accordingly reverse the judgment of the Court of Appeals.
7
As this Court has pointed out, the Public Vessels Act 'was intended to impose on the United States the same liability (apart from seizure or arrest under a libel in rem) as is imposed by the admiralty law on the private shipowner * * *.' Canadian Aviator, Ltd. v. United States, 324 U.S. 215, 228, 65 S.Ct. 639, 646, 89 L.Ed. 901. And there can be no question that a private shipowner in a case such as this would be liable for half of all the petitioner's provable damages, including the $16,000 paid to Ostrom. The Government argues, however, that the 'plain words' of the federal compensation statute nevertheless operate to limit the Government's liability in this case.
8
Section 7(b) provides that the compensation remedy shall be exclusive with respect to the Government's liability 'to the employee, his legal representative, spouse, dependents, next of kin, and anyone otherwise entitled to recover damages from the United States * * *.' The Government points out that the general words 'anyone otherwise entitled to recover damages' literally would cover a shipowner entitled to recover divided damages after a mutual fault collision. But the general language upon which the Government relies follows explicit enumeration of specific categories: employees, their representatives, and their dependents. Under the traditional rule of statutory construction which counsels against giving to general words a meaning totally unrelated to the more specific terms of a statute, we think the meaning of the statutory language is far from 'plain.'
9
The legislative history of the Federal Employees' Compensation Act, originally passed in 1916, shows that the concern of Congress was to provide federal employees a swift, economical, and assured right of compensation for injuries arising out of the employment relationship, regardless of the negligence of the employee or his fellow servants, or the lack of fault on the part of the United States. The purpose of § 7(b), added in 1949, was to establish that, as between the Government on the one hand and its employees and their representatives or dependents on the other, the statutory remedy was to be exclusive. There is no evidence whatever that Congress was concerned with the rights of unrelated third parties, much less of any purpose to disturb settled doctrines of admiralty law affecting the mutual rights and liabilities of private shipowners in collision cases.5
10
Section 5 of the Longshoremen's and Harbor Workers' Compensation Act is nearly identical to § 7(b) of the Federal Employees' Compensation Act in providing that '(t)he liability of an employer * * * shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death * * *.'6 In Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, it was held that despite this exclusive liability provision, a shipowner was entitled to reimbursement from a longshoreman's employer for damages recovered against the shipowner by the longshoreman injured by the employer's negligence. The Court's decision in Ryan was based upon the existence of a contractual relationship between the shipowner and the employer. In a series of subsequent cases, the same result was reached, although the contractual relationship was considerably more attenuated. Weyerhaeuser S.S. Co. v. Nacirema Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491; Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413; Waterman S.S. Corp. v. Dugan & McNamara, 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169.
11
In the present case there was no contractual relationship between the United States and the petitioner, governing their correlative rights and duties. There is involved here, instead, a rule of admiralty law which, for more than 100 years, has governed with at least equal clarity the correlative rights and duties of two shipowners whose vessels have been involved in a collision in which both were at fault. The Schooner Catharine v. Dickinson, 17 How. 170, 177, 15 L.Ed. 233; The North Star, 106 U.S. 17, 21, 1 S.Ct. 41, 44, 27 L.Ed. 91. See Halcyon Lines v. Haenn Ship Ceiling and Refitting Corp., 342 U.S. 282, 284, 72 S.Ct. 277, 279, 96 L.Ed. 318. Long ago this Court held that the full scope of the divided damages rule must prevail over a statutory provision which, like the one involved in the present case, limited the liability of one of the shipowners with respect to an element of damages incurred by the other in a mutual fault collision. The Chattahoochee, 173 U.S. 540, 19 S.Ct. 491, 43 L.Ed. 801. The statute at issue in that case was the Harter Act, which categorically provides that cargo cannot collect directly from the carrying vessel for damages as a result of faults in navigation.7 The Court held that despite this statutory provision, the carrying vessel must share, according to the divided damages rule, damages sustained by the non-carrying vessel resulting from liability to the carrying vessel's cargo. See also Aktieselskabet Cuzco v. The Sucarseco, 294 U.S. 394, 55 S.Ct. 467, 79 L.Ed. 942.
12
In this case, as in The Chattahoochee, we hold that the scope of the divided damages rule in mutual fault collisions is unaffected by a statute enacted to limit the liability of one of the shipowners to unrelated third parties. The judgment is reversed.
13
Reversed.
1
43 Stat. 1112, 46 U.S.C. § 781 et seq.
2
39 Stat. 742, as amended, 5 U.S.C. § 751 et seq.
3
'If an injury or death for which compensation is payable * * * is caused under circumstances creating a legal liability in some person other than the United States to pay damages therefor, and a beneficiary entitled to compensation from the United States for such injury or death receives, as a result of a suit brought by him or on his behalf, or as a result of a settlement made by him or on his behalf, any money or other property in satisfaction of the liability of such other person, such beneficiary shall, after deducting the costs of suit and a reasonable attorney's fee, apply the money or other property so received in the following manner:
'(A) If his compensation has been paid in whole or in part, he shall refund to the United States the amount of compensation which has been paid by the United States * * *.' 5 U.S.C. § 777.
4
63 Stat. 861, 5 U.S.C. § 757(b).
5
The Senate Report explained the addition of § 7(b) as follows:
'Section 7 of the act would be amended by designating the present language as subsection '(a)' and by adding a new subsection '(b).' The purpose of the latter is to make it clear that the right to compensation benefits under the act is exclusive and in place of any and all other legal liability of the United States or its instrumentalities of the kind which can be enforced by original proceeding whether administrative or judicial, in a civil action or in admiralty or by any proceeding under any other workmen's compensation law or under any Federal tort liability statute. Thus, an important gap in the present law would be filled and at the same time needless and expensive litigation will be replaced with measured justice. The savings to the United States, both in damages recovered and in the expense of handling the lawsuits, should be very substantial and the employees will benefit accordingly under the Compensation Act as liberalized by this bill.
'Workmen's compensation laws, in general, specify that the remedy therein provided shall be the exclusive remedy. The basic theory supporting all workmen's compensation legislation is that the remedy afforded is a substitute for the employee's (or dependent's) former remedy at law for damages against the employer. With the creation of corporate instrumentalities of Government and with the enactment of various statutes authorizing suits against the United States for tort, new problems have arisen. Such statutes as the Suits in Admiralty Act, the Public Vessels Act, the Federal Tort Claims Act and the like, authorize in general terms the bringing of civil actions for damages against the United States. The inadequacy of the benefits under the Employees' Compensation Act has tended to cause Federal employees to seek relief under these general statutes. Similarly, corporate instrumentalities created by the Congress among their powers are authorized to sue and be sued, and this, in turn, has resulted in filing of suits by employees against such instrumentalities based upon accidents in employments.
'This situation has been of considerable concern to all Government agencies and especially to the corporate instrumentalities. Since the proposed remedy would afford employees and their dependents a planned and substantial protection, to permit other remedies by civil action or suits would not only be unnecessary, but would in general be uneconomical, from the standpoint of both the beneficiaries involved and the government.' S.Rep. No. 836, 81st Cong., 1st Sess. 23; U.S.Code Cong.Service 1949, p. 2135. (Emphasis supplied.)
6
44 Stat. 1426, 33 U.S.C. § 905.
7
The Harter Act provides in pertinent part:
'If the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent, or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel nor shall the vessel, her owner or owners, charterers, agent, or master be held liable for losses arising from dangers of the sea or other navigable waters, acts of God, or public enemies, or the inherent defect, quality, or vice of the thing carried, or from insufficiency of package, or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods, his agent or representative, or from saving or attempting to save life or property at sea, or from any deviation in rendering such service.' 46 U.S.C. § 192.
This provision has been substantially reenacted in § 4(2) of the Carriage of Goods by Sea Act, which provides:
'(2) Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from—
'(a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship;' 46 U.S.C. § 1304(2)(a).
| 78
|
372 U.S. 699
83 S.Ct. 965
10 L.Ed.2d 80
James BASHAM, Petitioner,v.PENNSYLVANIA RAILROAD COMPANY.
No. 512.
Argued March 19, 1963.
Decided April 15, 1963.
Ira Gammerman, New York City, for petitioner.
David J. Mountan, Jr., New York City, for respondent.
PER CURIAM.
1
Petitioner, a car repairman employed by respondent railroad, brought this suit under the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. § 51 et seq., in the Supreme Court of the State of New York to recover damages for personal injuries sustained as a result of respondent's alleged negligence. A jury verdict for petitioner was set aside by the trial judge on the ground that negligence was not established. The Appellate Division affirmed without opinion, one judge dissenting, 10 A.D.2d 948, 201 N.Y.S.2d 362, and the Court of Appeals affirmed, also without opinion, 11 N.Y.2d 991, 229 N.Y.S.2d 428, 183 N.E.2d 704. This Court granted certiorari, 371 U.S. 860, 83 S.Ct. 128, 9 L.Ed.2d 98, to consider the propriety of the trial judge's action.
2
At the time of the accident, petitioner was working on a hoist platform located in a work pit underneath a railroad car on which new wheels were being installed. He testified that as he was lifting a 100-pound wheel spring into position the platform moved, causing him to drop the spring on his left index finger which, as a consequence, was amputated. Petitioner's version of the accident was confirmed by a co-worker who testified that he saw the platform move at the time of the injury. Petitioner offered additional evidence that prior complaints had been lodged with respondent about platform movements in similar and adjacent repair pits in which fellow employees were working and that safety equipment preventing platform movements had been installed in one of the adjacent pits but not in the pit where the accident occurred.
3
Respondent introduced evidence that it was physically impossible for the accident to have happened in the manner claimed by petitioner, that the platform was virtually immovable, and that the equipment installed in the adjacent pit was put there to assure that the platform was in position when the men went to work and had nothing to do with the movement of the platform during the process of installing new wheels.
4
The conflict in the testimony was resolved by the jury's verdict in favor of the petitioner. Since there was an evidentiary basis for that verdict, it was error for the New York trial and appellate courts to reevaluate the conflicting evidence and mandate a result opposite from that reached by the jury.
5
In Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916, also an F.E.L.A. action, the employer argued, as does respondent here, that its evidence tended to show it was physically impossible for its equipment to have injured the employee. There, as in this case, the suing employee offered evidence that the injury was the result of equipment failure. In reversing a state court judgment setting aside a jury verdict for the employee, this Court said, in language fully apposite here: 'Only when there is a complete absence of probative facts to support the conclusion reached (by the jury) does a reversible error appear. But where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.' 327 U.S., at 653, 66 S.Ct., at 744.
6
Since, in this case, petitioner's evidence, though disputed, constituted probative facts sufficient to support the finding of negligence, the state courts improperly invaded the function and province of the jury in setting the verdict aside. Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493.
7
The judgment of the New York Court of Appeals is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
8
Mr. Justice HARLAN (dissenting).
9
This is a run-of-the-mill negligence case, presenting no new question of law or departure from established legal principles. The only question is whether there was enough evidence to take the case to the jury.
10
A total of 12 New York Judges—one at nisi prius, four on the Appellate Division (a fifth dissenting), and seven on the Court of Appeals—have held that the evidence was not sufficient to warrant submission of the case to the jury.
11
To bring such a case here for further review by nine more Justices seems to me a most futile expenditure of judicial time. Having reflected on the oral argument, briefs, and record, I conclude that the only premise on which this reversal can be justified is that anything a jury says goes.
12
I would affirm the judgment below.
| 78
|
372 U.S. 633
83 S.Ct. 969
10 L.Ed.2d 33
Irving J. WOLF, Robert H. Davidson, Richard S. Hull and Frederick Katzenell, Petitioners,v.Arnold A. WEINSTEIN, Jerome Fried, Nazareth Fairgrounds & Farmers' Market, Inc., et al.
No. 70.
Argued Feb. 20, 1963.
Decided April 15, 1963.
[Syllabus from pages 633-634 intentionally omitted]
Melvin Lloyd Robbins, New York City, for petitioners.
Alex L. Rosen and Harold Harper, New York City, for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case concerns two orders of the District Court for the Southern District of New York made in a proceeding for the reorganization of respondent corporation, Nazareth Fairgrounds and Farmers' Market, Inc. (the Debtor), under Chapter X of the Bankruptcy Act, 11 U.S.C. §§ 501—676. One order determined a controversy over the rights of numerous claimants to stock interests in the Debtor. The other order—predicated on findings that respondent Weinstein, President of the Debtor, and respondent Fried, the Debtor's General Manager, had traded in the Debtor's stock during the proceeding in violation of § 249 of the Bankruptcy Act, 11 U.S.C. § 6491—directed that Weinstein have nothing further to do with the operation of the Debtor's business, that Fried be discharged as General Manager and that the compensation of both be terminated forthwith. Neither respondent was, however, directed to return the compensation he had received before the date of the order. The Court of Appeals for the Second Circuit, in separate opinions, reversed both orders. We granted certiorari, 369 U.S. 837, 82 S.Ct. 868, 7 L.Ed.2d 841.
2
We decide only the issues presented by the Court of Appeals' reversal of the District Court's order applying § 249 to Weinstein and Fried, adjudicated sub nom. In re Nazareth Fairgrounds & Farmers' Market, Inc., Debtor, 2 Cir., 296 F.2d 678. Decision of those issues, which involve the reach of § 249, is important in the administration of the Bankruptcy Act. But our consideration of the issues underlying the order of the District Court reversed sub nom. Fried v. Margolis, 2 Cir., 296 F.2d 670, persuades us that the grant of certiorari to review these issues was improvident. Oral argument brought into sharper focus than was apparent at the time we granted the writ that the controversy over the stock interests primarily implicates questions of Pennsylvania law and presents no federal question of substance. In the circumstances, the writ of certiorari as to that judgment of the Court of Appeals is dismissed as improvidently granted. Cf. The Monrosa v. Carbon Black, Inc., 359 U.S. 180, 183 184, 79 S.Ct. 710, 712—713, 3 L.Ed.2d 723.
3
The pertinent provisions of § 249 disallow compensation or reimbursement to any person 'acting in the proceedings in a representative or fiduciary capacity, who at any time after assuming to act in such capacity has purchased or sold * * * stock (of the Debtor) * * * without the prior consent or subsequent approval of the judge * * *.' Both Weinstein and Fried traded in the Debtor's stock while serving respectively as President and General Manager.2 Both held their positions with the approval of the District Court which, after permitting the Debtor to remain in possession pursuant to § 156, 11 U.S.C. § 556, authorized Weinstein to continue to serve as President and Fried to continue as General Manager. The court also approved salaries for each.3 Fried has actively managed the business, the principal asset of which is a farmers' market located in Eastern Pennsylvania. Weinstein, a New York attorney, has acted primarily in a consultative or advisory capacity. The Debtor's business has prospered under their management despite considerable friction and dissension between factions contending for stock and managerial control.
4
The District Court, after hearings upon the nature and extent of Weinstein's and Fried's duties and activities, concluded that each was a 'fiduciary' within the meaning of § 249.4 The District Court thereupon ordered that their compensation be terminated, that Fried be discharged as General Manager, and that Weinstein, whose removal as President the court believed was beyond its powers, have nothing further to do with the management of the business.5 The Court of Appeals reversed the order in its entirety on the ground that § 249 applied to neither Weinstein nor Fried. The Court of Appeals indicated that 'doubtless' a literal reading of the statute's terms would include both, but held that § 249 was to be construed as applicable not to every 'person acting in the proceedings in a representative or fiduciary capacity' but only to such persons in the particular capacities named in §§ 241, 242 and 243, 11 U.S.C. §§ 641, 642 and 643—petitioning creditors, court officers and their attorneys, indenture trustees, depositaries, reorganization managers, committees, creditors and stockholders, or their representatives, and the attorneys for them or for 'other parties in interest'—who under § 247 are entitled to a hearing upon applications for allowances after notice to certain interested groups and individuals. 296 F.2d, at 682—683. In reversing the District Court on this ground the Court of Appeals found no occasion to consider the question whether in addition to denial of compensation removal from office was authorized or required where § 249 was applicable, since in its view 'the order of removal cannot survive the fall of its underpinning.' 296 F.2d, at 683.
5
We disagree with the Court of Appeals. We hold that persons performing fiduciary functions such as those which the District Court found Weinstein and Fried had performed are subject to § 249.
I.
6
The virtual immunity which active participants in corporate reorganizations enjoyed from judicial superintendence of abuses in the payment of compensation and allowances was one of the principal reasons for the enactment of § 77B of the Bankruptcy Act in 1934.6 'There was the spectacle of fiduciaries fixing the worth of their own services and exacting fees which often had no relation to the value of services rendered,' Leiman v. Guttman, 336 U.S. 1, 7, 69 S.Ct. 371, 373, 93 L.Ed. 453. Section 77B, among other significant reforms, created important new judicial powers to regulate the payment of compensation and the reimbursement of expenses. See Dickinson Industrial Site, Inc. v. Cowan, 309 U.S. 382, 388-389, 60 S.Ct. 595, 598—599, 84 L.Ed. 819. Passage of the Chandler Act four years later measurably strengthened these powers of judicial superintendence, particularly with respect to corporate reorganizations, through the new provisions of c. X, 11 U.S.C. §§ 501—676, see Brown v. Gerdes, 321 U.S. 178, 181—182, 64 S.Ct. 487, 488—489, 88 L.Ed. 659. In curbing the pre-statutory abuses the general provisions of § 77B had proved inadequate.7 Chapter X sought also to broaden the participation of interested groups in the reorganization by ensuring compensation to several classes which theretofore often served the estate as volunteers.8
7
No statutory sanction against trading in the Debtor's securities during a reorganization was provided before the Chandler Act. However, § 77B's broad mandate that fees and allowances must be 'reasonable' to merit judicial approval had been held sufficient authority by two federal courts to sanction denial of compensation to persons holding fiduciary positions in reorganization proceedings who had traded in the Debtor's stock. In re Paramount-Publix Corp., D.C., 12 F.Supp. 823, 828, rev'd in part, 2 Cir., 83 F.2d 406; In re Republic Gas Corp., D.C., 35 F.Supp. 300. These decisions found even in the general terms of the statute the embodiment of 'ancient equity rules governing the conduct of trustees, including deprivation of compensation where there is a departure from those rules.' 35 F.Supp., at 305.
8
The relevant legislative materials leave no doubt that the purpose behind § 249 was to codify the rule of these decisions and to give pervasive effect in Chapter X proceedings to the historic maxim of equity that a fiduciary may not receive compensation for services tainted by disloyalty or conflict of interest.9 Cf. Michoud v. Girod, 4 How. 503, 556—560, 11 L.Ed. 1076; Weil v. Neary, 278 U.S. 160, 49 S.Ct. 144, 73 L.Ed. 243; Magruder v. Drury, 235 U.S. 106, 119 120, 35 S.Ct. 77, 81—82, 59 L.Ed. 151. Indeed, we have several times declared that the general statutory authorization in the Bankruptcy Act for 'reasonable' compensation for services 'necessarily implies loyal and disinterested service in the interest of those for whom the claimant purported to act.' Woods v. City Nat. Bank & Trust Co., 312 U.S. 262, 268, 61 S.Ct. 493, 497, 85 L.Ed. 820; see also American United Mutual Life Ins. Co. v. Avon Park, 311 U.S. 138, 61 S.Ct. 157, 85 L.Ed. 91.
9
Access to inside information or strategic position in a corporate reorganization renders the temptation to profit by trading in the Debtor's stock particularly pernicious. The particular dangers may take two forms: On the one hand, an insider is in a position to conceal from other stockholders vital information concerning the Debtor's financial condition or prospects, which may affect the value of its securities, until after he has reaped a private profit from the use of that information. On the other hand, one who exercises control over a reorganization holds a post which might tempt him to affect or influence corporate policies—even the shaping of the very plan of reorganization—for the benefit of his own security holdings but to the detriment of the Debtor's interests and those of its creditors and other interested groups.10
10
Congress enacted two distinct types of sanctions to prevent these possible practices. One appears in § 16(b) of the Securities Exchange Act, 15 U.S.C. § 78p(b), which prohibits the realization by insiders of short-swing profits from trading in their corporation's stock, even when the corporation is solvent. Cf. Blau v. Lehman, 368 U.S. 403, 82 S.Ct. 451, 7 L.Ed.2d 403. The other sanction, directed at preventing insider trading during insolvency or reorganization, appears in § 249; it denies to a 'fiduciary' or 'representative' any compensation or reimbursement if at any time during the proceeding he trades in the Debtor's stock. The two provisions are cumulative, not alternative.11
11
In the light of its clearly revealed objectives, no congressional purpose to exclude from § 249 insiders such as Weinstein and Fried—who are, as the District Court found, no less fiduciaries of the Debtor than committee members, trustees or attorneys—can be perceived. Certainly the possibilities for abuse of their access to inside information and its clandestine use for personal profit are no less.12 Thus throughout the context of corporate reorganization and bankruptcy, the decisions of this and other courts have recognized no substantial distinction between directors, for example, and officers or managing employees with respect to the obligation of loyal and disinterested service. 'Since the officers and directors occupy fiduciary positions during this (reorganization) period, their actions are to be held to a higher standard than that imposed upon the general investing public.' Securities & Exchange Comm'n v. Chenery Corp., 332 U.S. 194, 208, 67 S.Ct. 1575, 1583, 91 L.Ed. 1995. See also Pepper v. Litton, 308 U.S. 295, 306, 60 S.Ct. 238, 245, 84 L.Ed. 281; In re Los Angeles Lumber Prods. Co., D.C., 37 F.Supp. 708.
12
The policies underlying Chapter X and § 249 itself suggest two further reasons for not recognizing such a distinction. First, if the class of 'fiduciaries' or 'representatives' whose trading is regulated by § 249 was meant to comprehend only reorganization committees, attorneys, trustees and the like, the enactment would have been superfluous in view of the fiduciary standard to which they were already bound under settled principles of equity. Even before the Chandler Act a committee member of dominant shareholder who profited from inside information during a reorganization was no more entitled to compensation for his services than the trustee of a private trust who compromised his loyalty. Cf. Weil v. Neary, supra. We have said that the inherent equity power of the bankruptcy court 'embraces denial of compensation to those who have purchased or sold securities during or in contemplation of the proceedings.' American United Mutual Life Ins. Co. v. Avon Park, supra, 311 U.S. at 147, 61 S.Ct. at 162, 85 L.Ed. 91. We can only conclude therefore that § 249 was meant to broaden the classes of fiduciaries to be subjected to this traditional sanction.
13
Second, to define 'fiduciary' in § 249 as narrowly as has the Court of Appeals would invite a form of evasion and circumvention which could readily defeat the whole purpose of the statute's prophylactic rule. If only a director or corporate attorney were disqualified from trading during the reorganization, how easily a director-officer could avoid the ban by relinquishing his directorship while retaining his office and therefore his access to inside information. In other words, the mere shifting of titles could enable the very class at which the regulation was directed to avoid its prohibitions. Congress plainly did not indulge in an exercise in futility in enacting § 249.
14
In terms of the purposes and the underlying policies of § 249 there is therefore no justification for the Court of Appeals' construction exempting Weinstein and Fried. We turn now to the parsing of the provisions of the Bankruptcy Act by which the Court of Appeals reached its conclusion.
II.
15
Article XIII of Chapter X, of which § 249 is a part, provides generally for matters of 'compensation and allowances.' Sections 241, 242 and 243 authorize the bankruptcy court to allow reimbursement and compensation to the persons specifically named in those sections.
16
The Court of Appeals concluded that the prohibitions of § 249 apply only to those persons named in §§ 241—243, who are required to apply to the court for compensation or reimbursement under § 247. The Court of Appeals reasoned from the lacation of § 249 within the article that only the 'strangers' to the corporation mentioned in §§ 241, 242 and 243, whose services would not have been rendered but for the reorganization, and who could not therefore have been compensated without judicial approval, could be taken to be within § 249. The court buttressed this reading by reference to distinct and separate sections of the Act providing for the compensation of officers and employees.
17
Our reading of the same sections leads us to the contrary conclusion; in our view they support our broader reading of § 249. First, it is significant that the coverage of § 249 is defined in terms quite unlike those of the earlier sections of the article. While §§ 241—243 and § 247 detail with care the classes of persons to whom compensation is to be allowed and by whom application is to be made, § 249 speaks generally of 'any committee or attorney, or other person acting in the proceedings in a representative or fiduciary capacity * * *.' Had the Congress meant the coverage of this section to be coextensive with that of its predecessors in the article, it would presumably either have referred expressly to the earlier sections as the guidelines for § 249, or would have enumerated the same groups again in essentially the same terms. That the draftsmen of § 249 used neither readily available approach suggests that the superintendence of § 249 was meant to transcend the bounds of the article.
18
Further parsing of the statute reinforces this conclusion. There is, for example, no mention in §§ 241—243 or § 247 of the directors of the Debtor corporation. Yet there seems little doubt that directors, who are fiduciaries even of a solvent corporation and its shareholders, may be brought within the prohibitions of § 249 if they trade in the Debtor's stock. See In re Los Angeles Lumber Prods. Co., supra, 37 F.Supp. at 711. On the other hand, it is not entirely correct to say that Article XIII authorizes allowances only for 'strangers' whose services would neither have been rendered nor become compensable save for the reorganization. Both the indenture trustee and the attorney for the Debtor are, for example, expressly named as Article XIII applicants, required under § 247 to seek compensation, at least for services pursuant to the reorganization. Neither can properly be considered a 'stranger' whose relationship to and services for the corporation arise solely out of the petition for reorganization.
19
We turn next to the argument that § 249 cannot have been intended to embrace officers and employees in light of certain provisions concerning their compensation in Article VIII. Section 191, for example, authorizes the Debtor in possession to 'employ officers of the debtor at rates of compensation to be approved by the court.' The suggestion is that once the court has approved a rate of compensation under that section, such approval must be taken to immunize the officer from the sanctions of § 249. We cannot accept that suggestion, for surely there are various forms of disloyalty or conflict of interest which would disentitle an officer to compensation under general principles of equity and quite without regard to any statutory prohibition.13
20
The approval of an officer's rate of compensation does not confer an immunity from equitable sanctions, nor can it immunize him from § 249. Section 191 does no more than vest the court with additional authority to pass in advance upon the qualifications and the salary of an officer of the Debtor before he assumes or continues in office. There is no suggestion in that section or elsewhere that such approval was intended to diminish in any way the court's statutory powers over fees and allowances conferred broadly by the Chandler Act. That officers and other employees may receive their compensation on a weekly or monthly basis while other persons subject to § 249, such as attorneys and trustees, customarily serve without compensation until the conclusion of the proceeding, is a difference without legal significance in this context.14 The application of § 249 turns not upon the manner in which, or the time at which, payment is made, but rather upon the nature of the services and responsibilities which are being compensated.
21
Consideration of the function and responsibility of the officers of a Debtor corporation left in possession also supports our construction. The concept of leaving the Debtor in possession, as a 'receivership without a receiver,'15 was designed to obviate the need to appoint a trustee for the supervision of every small corporation undergoing reorganization, even though it appeared capable of carrying on the business during the proceeding. Continued possession by the Debtor, authorized by § 156, is subject at all times to judicial termination and the appointment of a disinterested trustee under § 159. But so long as the Debtor remains in possession, it is clear that the corporation bears essentially the same fiduciary obligation to the creditors as does the trustee for the Debtor out of possession.16 Moreover, the duties which the corporate Debtor in possession must perform during the proceeding are substantially those imposed upon the trustee, § 188. It is equally apparent that in practice these fiduciary responsibilities fall not upon the inanimate corporation, but upon the officers and managing employees who must conduct the Debtor's affairs under the surveillance of the court,17 §§ 188—191. If, therefore—as seems beyond dispute from the very terms of the statute—the trustee is himself a fiduciary within the meaning of § 249, logic and consistency would certainly suggest that those who perform similar tasks and incur like obligations to the creditors and shareholders should not be treated differently under the statute for this purpose.18
22
The foregoing discussion answers two further arguments grounded on statutory construction. First, it has been contended that officers and managing employees must be deemed to be outside § 249 because their compensation derives from 'consensual arrangements' and because they were compensated before the filing of the petition for the very services they continue to perform thereafter. The suggestion overlooks, with respect to officers at least, the requirement imposed by § 191 of judicial approval not only of salary but of the holding of office itself. More important, as to both officers and managing employees, the suggestion fails to appreciate the change which the filing of the petition and judicial approval of the Debtor's remaining in possession necessarily cause in the obligations, if not in the day-to-day activities of all responsible officials. The difference in an officer's status and responsibilities before and after the start of a reorganization is most clearly reflected in the § 191 requirement of judicial approval upon which an officer's or director's continued service is contingent. The broader principle which underlies that requirement and emphasizes the change in responsibility is that the court's willingness to leave the Debtor in possession is premised upon an assurance that the officers and managing employees can be depended upon to carry out the fiduciary responsibilities of a trustee. And if they default in this respect, the court may at any time replace them with an appointed trustee.
23
Finally, it is suggested that important differences between 'what is demanded of a trustee and what is expected of officers of a debtor in possession' require the omission of the latter from § 249. 296 F.2d, at 683. The argument proves too much, for surely the prohibitions of § 249 cover persons other than the trustee various groups such, at the least, as those listed in §§ 241—243, who are held to a fiduciary standard although, unlike the trustee himself, they need not be 'disinterested' within the meaning of § 158(1). That the officers of a Debtor in possession are not 'trustees' for all purposes is beyond dispute, but that proposition does not provide an answer to the question before us which of those persons who are not disinterested and could not therefore serve as trustees under § 156 may nonetheless be regarded as fiduciaries within the meaning of § 249.
24
In concluding as we do that an officer or a managing employee of a Debtor in possession may be a fiduciary for purposes of § 249, we do not mean to suggest that one who holds such a position is necessarily within that section. That question requires in each case a careful examination of the nature of the particular applicant's activities, powers and responsibilities in connection with the reorganization. As to certain classes of participants—committee members and attorneys, for example—the very terms of § 249 clearly make its sanctions applicable. As to other groups—salaried employees who take no part in the management of the Debtor, for instance—it may be equally clear that § 249 was not meant to impose any ban on trading in the Debtor's stock. But in the case of an officer or managerial employee, the question whether the particular applicant is a 'fiduciary' under the statute is one which requires careful appraisal of the relevant facts.19
25
In this case the District Court took evidence concerning both Fried's and Weinstein's activities and responsibilities, and concluded that each was for these purposes a 'fiduciary.' Unless the District Court erroneously interpreted the statute, which we have held it did not, its findings as to the status of the respondents should bind our review of the case. Since there was ample evidence to support those findings, and the Court of Appeals did not question them, § 249 applies to Weinstein and Fried.
III.
26
But the bare holding that § 249 has been violated does not automatically determine the consequences of such a violation. We turn now to that aspect of the case. There is no doubt that proof of trading in contravention of the statute requires at least the denial of any application for past compensation then pending, and the disallowance of all future compensation.20 The District Court went so far but declined to go further. We must now consider whether the District Court was also required, in order fully to effectuate the policies of § 249, to order restitution or recoupment of salaries already received by Fried and Weinstein for their beneficial services to the Debtor. As we have observed, the fact that these salaries have already been paid under approval of the court does not necessarily preclude their recoupment.
27
It is argued, however, that to require restitution at this late date, particularly when the trading involved small amounts of stock and was carried on apparently in good faith and without knowledge of the existence of § 249, imposes an unduly harsh sanction—a remedy disproportionate to the offense. While we recognize that in a case such as this the remedy is indeed a severe one, we cannot find that Congress intended anything less. To hold that one who trades in violation of § 249 forfeits only his right to future compensation would place a premium on concealment of transactions in the Debtor's stock and thereby jeopardize the salutary policies of the statute. Moreover, it is well settled that when the question arises in a terminal application for compensation or reimbursement under § 247, an applicant who has engaged in forbidden transactions near the end of the proceeding is to be denied compensation for all services he has rendered to the Debtor, however valuable those services may have been.21 Thus the policies of the statute afford no alternative but to order the restitution of all amounts of compensation and reimbursement received by these respondents since the start of the reorganization.
28
If the remedy seems harsh in this case, it is wholly consistent with the uniform application of this statute by the lower courts. As the Court of Appeals for the Second Circuit has recognized in an earlier case, '(t)his result may well work harshly in individual cases * * *. But in § 249 of the Bankruptcy Act Congress clearly intended drastic results and thought them necessary to eliminate the serious abuses of insider information which had long been existent in equity reorganizations. * * * In the past excuses of inadvertence or de minimis have not been permitted to undermine the section * * *.' Surface Transit, Inc. v. Saxe, Bacon & O'Shea, 266 F.2d 862, 868 (C.A.2d Cir.). The lower federal courts have uniformly found it immaterial to the application of § 249, for example, that the extent of trading may have been minimal; that the applicant may never have realized the profit from the transaction, or may actually have suffered a loss; that the trading may have been done in response to a personal or corporate emergency; or that the applicant may neither have possessed nor attempted to acquire inside information bearing on the value of the Debtor's stock.22 In light of the seriousness of the abuses which the statute was designed to prevent, it has been thought that to allow any such exception or dispensation would frustrate the manifest intent of Congress to impose an effective prophylactic rule.23 That the rule occasionally bars compensation to those whose conduct might not have been considered inequitable or disloyal in the absence of such a statute is no reason to suspend or make selective the operation of the statute's sanctions.
29
We do not agree, however, that a violation of § 249 of itself requires the discharge of the violator from his corporate office. While a bankruptcy court possesses extensive power over the tenure and the conduct of officers and employees, and might find that trading during the reorganization rendered an officer unfit for further service to the Debtor, even without compensation, that result does not follow inexorably.24 In the present case the District Court apparently relieved Fried and Weinstein of their corporate responsibilities solely because of the violation of § 249. The Court of Appeals, finding no violation, saw no occasion to determine whether the discharge of the respondents might nevertheless be justified by considerations outside that section.
30
The question of the bankruptcy court's power to remove a corporate officer is a difficult and complex one, in which state and federal law may be intricately interwoven.25 We therefore intimate no view concerning either the court's powers with respect to the removal of an officer, or the propriety of exercising in this case whatever powers may exist. That question must be reconsidered by the courts below in the light of our holding that the conduct of the respondents did constitute a violation of § 249 which disentitles them to all compensation.
31
The judgment is reversed and the cause is remanded to the Court of Appeals for further proceedings consistent with this opinion. It is so ordered.
32
Judgment reversed and cause remanded with directions.
33
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, concurring in part and dissenting in part.
34
I agree with the dismissal of the writ respecting the issues involved in Fried v. Margolis, 2 Cir., 296 F.2d 670, but would affirm the judgment of the Court of Appeals in the Nazareth case, 2 Cir., 296 F.2d 678, relating to § 249 of the Bankruptcy Act. On that score I fully agree with Judge Friendly that at 'the very least, courts are justified in demanding a clear indication of Congressional purpose before inflicting' such a 'Draconian penalty' (296 F.2d, at 683) as the Court's decision now imposes on petitioners Weinstein and Fried. The very triviality of the transactions involved in this particular case cautions against acceptance of the Court's ready construction of § 249.
1
11 U.S.C. § 649:
'Any persons seeking compensation for services rendered or reimbursement for costs and expenses incurred in a proceeding under this chapter shall file with the court a statement under oath showing the claims against, or stock of, the debtor, if any, in which a beneficial interest, direct or indirect, has been acquired or transferred by him or for his account, after the commencement of such proceeding. No compensation or reimbursement shall be allowed to any committee or attorney, or other person acting in the proceedings in a representative or fiduciary capacity, who at any time after assuming to act in such capacity has purchased or sold such claims or stock, or by whom or for whose account such claims or stock have, without the prior consent or subsequent approval of the judge, been otherwise acquired or transferred.' This provision was added by the Chandler Act of June 22, 1938, c. 575, 52 Stat. 901.
2
The petition on which the District Court's order was based alleged that in 1958 and 1959 Weinstein (who was still a director and officer of the Debtor) had purchased three shares and sold a fraction of one, and that in 1959 he or persons represented by him had exercised options to purchase six shares. It was further alleged that Fried had bought 20 shares in 1957, of which he had resold 10 shares in 1958. Although conceding that he had bought and sold securities of the Debtor, Weinstein insisted before the District Court that he was unaware of the existence of § 249, and had bought the stock only to keep the corporation out of the control of 'raiders,' and not for personal profit. Fried also admitted the alleged transactions, but maintained that he had been motivated neither by inside information nor by any improper motive to use his corporate position to enhance his trading.
3
At the time of filing of the petition, Weinstein was both a director of the Debtor and its President. Fried had previously been a director and Secretary-Treasurer, but resigned those posts before the filing of the petition, and continued to hold only the position of General Manager, apparently not an office provided for in the corporation's charter. The court originally authorized payment of a salary of $100 weekly to Fried, and nothing to Weinstein. Later Fried's salary was increased to $150 and eventually to $200 weekly, while provision was made for payment of $50 weekly to Weinstein. The District Court's orders with respect to Weinstein were apparently made pursuant to § 191 of the Act, 11 U.S.C. § 591, which permits a debtor in possession to 'employ officers of the debtor at rates of compensation to be approved by the court.' Since Fried was not an officer of the Debtor, but merely a salaried employee, explicit judicial approval of his continued employment and salary may not have been required. Cf. In re Willow Cafeterias, 2 Cir., 111 F.2d 429, 431.
4
Since Weinstein was both an officer and a director of the Debtor and had conceded on cross-examination that he was a 'fiduciary,' no further inquiry concerning his corporate function was necessary, although the District Court did probe the nature and extent of his services. The court did, however, examine Fried at some length concerning the nature of his powers and responsibilities in the management of the Debtor's business, and concluded:
'* * * you were substantially more than a mere employee. You were no cop in the parking lot. You ran the business while Mr. Weinstein wasn't there. As you admitted, you operated the business and managed the property of the debtor. The fact that you consulted and got approval from the directors does not diminish your status in the structure of the debtor. You were the managing agent.'
5
The District Court held that § 189 of the Bankruptcy Act, 11 U.S.C. § 589, authorizing the court to supervise the operations of a debtor in possession, supported the order entered at the close of the hearings that 'Jerome Fried will be discharged from the debtor's employ at once.' The order as to Weinstein was that he 'shall have nothing further to do with the operation of (the Debtor's) * * * business and affairs, and management of its property.' The court acknowledged that consistency would have dictated the removal of Weinstein from office, '(b)ut I don't have that power.' The District Court ordered further that neither Fried nor Weinstein should serve, even if willing to do so, without compensation. The Court of Appeals stayed this provision of the order pending decision of the appeal.
6
See, e.g., S.Doc.No.268, 74th Cong., 2d Sess. 59—63, which details certain abuses, with respect to fees and allowances antedating the adoption of § 77B. See also Securities and Exchange Comm'n, Report on the Study and Investigation of the Work, Activities, Personnel and Functions of Protective and Reorganization Committees, pt. II, 348—373; pt. VIII, 221—231. Further background material is given in 6 Collier, Bankruptcy (14th ed.1947), 13.18; Bandler, Securities Trading and Fee Sharing Under Chapter X of the Bankruptcy Act, 15 Record of the Assn. of the Bar of the City of New York 230—234 (1960).
7
There is much evidence that abuses of this kind survived the enactment of § 77B. See H.R.Rep.No.1409, 75th Cong., 1st Sess. 37—38 (quoting statement of Commissioner William O. Douglas); Teton, Reorganization Revised, 48 Yale L.J. 573, 591—592, 605 (1939); Developments in the Law—Reorganization Under Section 77B of the Bankruptcy Act—1934—1936, 49 Harv.L.Rev. 1111, 1201—1202 (1936); Medill, Fees and Expenses in a Corporate Reorganization Under Section 77B, 34 Mich.L.Rev. 331, 363—364 (1936). For this and other reasons, the Chandler Act established a comprehensive and exclusive system of allowances for services and expenses in a reorganization, which precludes the granting of allowances not therein provided for. See Brown v. Gerdes, supra; Lane v. Haytian Corp., 2 Cir., 117 F.2d 216, 219.
8
Under the very general compensation and allowance provisions of § 77B, for example, courts were uncertain whether remuneration could be provided to stockholders who took an active part in and made valuable contributions to the reorganization. Thus the courts had divided as to the availability of compensation or reimbursement to this and other interested classes of participants. See, e.g., 6 Collier, Bankruptcy (14th ed.1947), 13.01. Specific provisions of Chapter X sought to resolve these ambiguities by enumerating with some precision the participants to whom allowances were available, §§ 241—243, 11 U.S.C. §§ 641—643, and the procedure by which application for allowances must be made, § 247, 11 U.S.C. § 647. See Steinberg, Salient Features in Awarding Allowances in Corporate Reorganization Proceedings and the Role of the Securities and Exchange Commission in Their Final Determination, 8 N.Y.L. Forum 253, 266 (1962); Gerdes, Corporate Reorganizations: Changes Effected by Chapter X of the Bankruptcy Act, 52 Harv.L.Rev. 1, 36—37 (1938).
9
To the effect that the draftsmen of § 249 intended to codify, and also to broaden the scope of, the Paramount-Publix and Republic Gas rule, see Hearings on H.R. 6439, before the House Committee on the Judiciary, 75th Cong., 1st Sess. 184 (statement of Commissioner William O. Douglas: 'We visualized a lot of administrative difficulties in determining in a particular case whether or not actual inside information was used, and so we decided that the best practical way of doing it was to broaden the base a little bit and establish a rule of thumb and follow the pattern of the Paramount case and the Republic Gas case'). See also Douglas, Improvement in Federal Procedure for Corporate Reorganizations, 24 A.B.A.J. 875, 877 (1938); Brudney, Insider Securities Dealings During Corporate Crises, 61 Mich.L.Rev. 1, 6 10 (1962).
The Chandler Act contained another provision which, although less explicit, was in the same vein. Section 221(4), 11 U.S.C. § 621(4), provides that the court shall confirm a plan of reorganization if, inter alia, all payments made or promised by the debtor for services and expenses in connection with the reorganization are 'reasonable or, if to be fixed after confirmation of the plan, will be subject to the approval of the judge * * *.' This provision was carried over in substance from more general provisions of § 77B, as a companion to the new and more specific provisions of § 249.
10
Several courts have suggested that a paramount objective of § 249 was to check the misuse for private gain of inside information or control, to which the position of a representative or fiduciary gives him access. See, e.g., Otis & Co. v. Insurance Bldg. Corp., 1 Cir., 110 F.2d 333, 335; Finn v. Childs Co., 2 Cir., 181 F.2d 431, 441. See generally Steinberg, supra, note 8, at 265; Ferber, Blasberg and Katz, Conflicts of Interest in Reorganization Proceedings Under the Public Utility Holding Company Act of 1935 and Chapter X of the Bankruptcy Act, 28 Geo.Wash.L.Rev. 319, 365—379 (1959); Note, Conflict of Interests as a Factor in the Allowance of Representatives' Claims in Insolvent Corporate Reorganizations, 106 U. of Pa.L.Rev. 1139, 1160—1161 (1958); 63 Harv.L.Rev. 1057—1058 (1950).
11
The common origins and parallel purposes of § 249 and § 16(b) of the Securities Exchange Act have been outlined in 2 Loss, Securities Regulation (2d ed. 1961), 1124—1125. See also Brudney, supra, note 9, at 8—10. For analysis of the particular policies underlying § 16(b) which require a similarly pervasive and unbending rule against certain forms of insider trading, see, e.g., Adler v. Klawans, 2 Cir., 267 F.2d 840, 844; Cook and Feldman, Insider Trading Under the Securities Exchange Act, 66 Harv.L.Rev. 612, 622—623 (1953).
12
Several courts have said that officers, like directors, are to be held to a fiduciary standard during insolvency or reorganization which might bring them within the prohibitions of § 249. E.g., Gochenour v. Cleveland Terminals Bldg. Co., 6 Cir., 118 F.2d 89; In re Jersey Materials Co., D.C., 50 F.Supp. 428; In re Los Angeles Lumber Prods. Co., D.C., 46 F.Supp. 77, 89; cf. In re Philadelphia & W.R. Co., D.C., 64 F.Supp. 738, 741. See also Teton, supra, note 7, at 603; Brudney, supra, note 9, at 20; 6 Collier, Bankruptcy (14th ed.1947), 13.18, at 4591—4592.
The dangers of insider trading or misuse of information or position are not thought to be as applicable to trading by officers and directors of a solvent corporation not under judicial superintendence. Cf. Manufacturers Trust Co. v. Becker, 338 U.S. 304, 70 S.Ct. 127, 94 L.Ed. 107. Although a director, at least, is held always to certain fiduciary obligations while trading in the shares of his corporation, see Conant, Duties of Disclosure of Corporate Insiders Who Purchase Shares, 46 Cornell L.Q. 53 (1960), it has been suggested that it may actually be economically desirable for officers and directors to acquire a proprietary interest in a solvent corporation. See Berle and Means, The Modern Corporation and Private Property (1932), 122; Note, Fiduciary Duty of Officers and Directors Not to Compete With the Corporation, 54 Harv.L.Rev. 1191, 1196—1197 (1941).
13
See, e.g., In re Midland United Co., 3 Cir., 159 F.2d 340, 345—346. Thus, even where the prohibitions of § 249 are for one reason or another not applicable to a particular insider transaction during reorganization, bankruptcy courts have consistently recognized the existence of inherent equity power to disallow or at least to reduce claims for compensation or reimbursement. See In re Cosgrove-Meehan Coal Corp., 136 F.2d 3, 6 (C.A.3d Cir.); Chicago & West Towns Railways v. Friedman, 230 F.2d 364 (C.A.7th Cir.); Berner v. Equitable Office Bldg. Corp., 175 F.2d 218 (C.A.2d Cir.). See also 2 Loss, Securities Regulation (2d ed. 1961), 1124—1125; Note, 106 U. of Pa.L.Rev. 1139, 1155 (1958).
14
Respondents have contended that subjecting a salaried employee to the provisions of § 249 would impose insuperable administrative problems, because the employee would be required to make application to the court at the end of each pay period before payment of his salary would be authorized. The contention would have merit only if officers and employees were also within the class of applicants to whom the requirements of § 247 apply; but such a result is not, for reasons already discussed, inevitable. Indeed, the salary of a nonofficer employee need not even be approved in advance of his employment, In re Wil-low Cafeterias, 2 Cir., 111 F.2d 429; and while the rate of compensation of an officer must be approved initially under § 191, nothing either in that section or in § 247 suggests that weekly or monthly applications for the payment of salary at that rate are also required. Rather, employees and officers receive compensation during the proceeding subject to whatever fiduciary obligations are incumbent upon them, and contingent upon their continued fulfilment of those obligations.
15
The phrase was suggested by SEC Commissioner (later Judge) Jerome Frank, in Hearings on H.R. 8046 before a Subcommittee of the Senate Judiciary Committee, 75th Cong., 2d Sess. 99.
16
See, e.g., In re Avorn Dress Co., 2 Cir., 78 F.2d 681, 683; In re Los Angeles Lumber Prods. Co., D.C., 46 F.Supp. 77, 88; Gerdes, Corporate Reorganizations: Changes Effected by Chapter X of the Bankruptcy Act, 52 Harv.L.Rev. 1, 18—19 (1938).
17
See 6 Collier, Bankruptcy (14th ed. 1947), 2441—2442. Cf. Securities and Exchange Comm'n, Report on the Study and Investigation of the Work, Activities, Personnel and Functions of Protective and Reorganization Committees, pt. I, 312—329, 868—872.
18
One commentator has observed of the Court of Appeals' decision in this case: 'While the court concluded that * * * (the respondents) were not acting in a fiduciary capacity for purposes of § 249, it recognized that such persons owed fiduciary obligations to the corporation which extended to their dealing in its securities. To the extent that the court's opinion can be read to suggest only selective accountability for profits from such transactions, it is at odds with the rigorous rule of accountability embodied in earlier decisions.' Brudney, Insider Securities Dealings During Corporate Crises, 61 Mich.L.Rev. 1, 35 n. 109, at 36 (1962). For a similar view of this case see 48 Va.L.Rev. 751, 755—756 (1962).
19
In the context of § 16(b) of the Securities Exchange Act, for example, it is clear that a determination of who is a corporate 'officer' within the meaning of the statute requires a flexible assessment of particular powers and responsibilities rather than a rigid rule of thumb. So the Court of Appeals for the Second Circuit has held, Colby v. Klune, 178 F.2d 872. In that case Judge Jerome Frank observed on a question quite similar to the one now before us, 'the functions of a 'vice-president' or 'comptroller' are not so well settled as to be self-evident, and there is need for evidence concerning those functions. * * * The question is what this particular employee was called upon to do in this particular company, i.e., the relation between his authorized activities and those of this corporation.' 178 F.2d at 875.
Similarly, the question of when a stockholder participating in a reorganization proceeding is acting in a 'representative' capacity within the meaning of § 249, is one which requires an examination of the particular facts. See, e.g., Young v. Potts, 6 Cir., 161 F.2d 597; Finn v. Childs Co., 2 Cir., 181 F.2d 431. In Young v. Higbee Co., 324 U.S. 204, 65 S.Ct. 594, 89 L.Ed. 890, we undertook just such an analysis of the activities of two stockholders in order to determine, for a different but related purpose, whether they had served during the reorganization in a 'representative' capacity. Cf. Pepper v. Litton, supra. And see Note, Bankruptcy: Corporate Reorganization: Survey of Chapter X in Operation, 18 N.Y.U.L.Q.Rev. 399, 475 (1941).
20
See, e.g., Surface Transit, Inc. v. Saxe, Bacon & O'Shea, 2 Cir., 266 F.2d 862. Moreover, proof of trading in violation of § 249 forfeits any claim to reimbursement for expenses incurred by the applicant in connection with the proceeding. In re Inland Gas Corp., 6 Cir., 309 F.2d 176. It should be unnecessary to add that such sanctions are imposed not as penalties upon the trading itself—for other principles govern the extent to which and conditions under which an insider may profit from investment in the Debtor's securities during the proceeding. Rather, the rationale underlying the denial of compensation and expenses is that allowances may be made, under general equitable limitations and the statutory provisions alike, only for 'loyal and disinterested service in the interest of those for whom the claimant purported to act.' Woods v. City Nat. Bank & Trust Co., supra, 312 U.S. at 268, 61 S.Ct. at 497, 85 L.Ed. 820. Section 249 does no more than declare that one who invests in the Debtor's stock during a reorganization ceases to be disinterested for purposes of compensation and allowances.
21
Cf., e.g., In re Cosgrove-Meehan Coal Corp., 3 Cir., 136 F.2d 3.
22
See, e.g., In re Midland United Co., 3 Cir., 159 F.2d 340; In re Central States Electric Corp., 4 Cir., 206 F.2d 70; Surface Transit, Inc. v. Saxe, Bacon & O'Shea, 2 Cir., 266 F.2d 862; In re Arcade Malleable Iron Co., D.C., 35 F.Supp. 461; In re Norwalk Tire & Rubber Co., D.C., 96 F.Supp. 274. Several cases have recognized narrow exceptions to § 249 where the trading was carried on by a relative of the applicant or claimant, without his knowledge and not for his account, e.g., Nichols v. Securities & Exchange Comm'n, 2 Cir., 211 F.2d 412. But where the trading has been done with the applicant's knowledge or for his account, it is immaterial that he may not realize whatever profit results, In re Central States Electric Corp., supra; In re Midland United Co., D.C., 64 F.Supp. 399, 415—416. See generally, 45 Va.L.Rev. 1070 1071 (1959).
23
See generally, e.g., In re Inland Gas Corp., 6 Cir., 309 F.2d 176; 11 Remington, Bankruptcy (Hayes rev.ed.1961), 535—538; Teton, Reorganization Revised, 48 Yale L.J. 573, 602—603 (1939); Bandler, Securities Trading and Fee Sharing Under Chapter X of the Bankruptcy Act, 15 Record of the Assn. of the Bar of the City of N.Y. 230 (1960).
24
See Ferber, Blasberg and Katz, Conflicts of Interest in Reorganization Proceedings Under the Public Utility Holding Company Act of 1935 and Chapter X of the Bankruptcy Act, 28 Geo.Wash.L.Rev. 319, 360 (1959). As the District Court noted in ordering the removal of Fried, a bankruptcy court possesses considerable authority to supervise the employment policies of a Debtor in possession under §§ 188—191. It is not clear whether the District Court found a basis in its general powers for the removal of Fried and the termination of Weinstein's active duties, for it appears that the court was principally if not exclusively influenced by the violation of § 249. We do not mean to suggest that a violation of § 249 might not, standing alone, justify an order for the violator's discharge, but only to make clear that this result does not follow automatically. In any event, we think that we should not undertake to decide this question without first having the view of the Court of Appeals.
25
It is not clear why the District Court felt powerless to order Weinstein's removal from his corporate office. Nor is it clear to what extent the court felt the question of its power to be governed by pertinent state law. Although § 191 gives to the bankruptcy court the power to approve or disapprove an officer's assumption of office and his rate of compensation, there is a question to what extent those powers also comprehend a power of removal as a matter exclusively of federal law. We have no occasion to decide such questions at this stage of the proceeding.
| 78
|
372 U.S. 609
83 S.Ct. 999
10 L.Ed.2d 15
H. P. DUGAN et al., Petitioners,v.Everett G. RANK et al. The DELANO-EARLIMART IRRIGATION DISTRICT et al., Petitioners, v. Everett G. RANK et al.
Nos. 31, 115.
Argued Jan. 7, 1963.
Decided April 15, 1963.
Archibald Cox, Solicitor Gen., for H. P. Dugan and others, petitioners.
B. Abbott Goldberg, Sacramento, Cal., for Delano-Earlimart Irr. Dist., and others, petitioners.
Claude L. Rowe, Fresno, Cal., for respondents.
Mr. Justice CLARK delivered the opinion of the Court.
1
This injunction suit, filed in 1947 by water right claimants along the San Joaquin River below Friant Dam, California, and against local officials of the United States Bureau of Reclamation, a number of Irrigation and Utility Districts and, subsequently, against the United States as well, sought to prevent the storing and diverting of water at the dam, which is part of the Central Valley Reclamation Project. 50 Stat. 844, 850 (1937). See United States v. Gerlach Live Stock Co., 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231 (1950). The defense interposed was that the suit was against the United States and, therefore, beyond the jurisdiction of the courts, it not having consented to be sued. In 1956 the District Court ordered the injunction issued unless the Government constructed a 'physical solution'1 which would afford the landowners a supply of water simulating that of the past. Rank v. Krug, D.C., 142 F.Supp. 1. The Court of Appeals reversed as to the United States, finding that it had not consented to be sued. However, as to the officials, if affirmed on the ground that the United States had neither acquired nor taken the claimed water rights and that the officials were therefore acting beyond their statutory authority. California v. Rank, 9 Cir., 293 F.2d 340 and 9 Cir., 307 F.2d 96. No. 31 is the petition of the local Reclamation Bureau officials, and No. 115 is that of the Irrigation and Utility Districts. Both cases proceed from the same Court of Appeals opinion. The importance of the question to the operation of this vast federal reclamation project led us to grant certiorari. 369 U.S. 836, 82 S.Ct. 865, 7 L.Ed.2d 842 and 370 U.S. 936, 82 S.Ct. 1586, 8 L.Ed.2d 806. We have concluded that the Court of Appeals was correct in dismissing the suit against the United States; that the suit against the petitioning local officials of the Reclamation Bureau is in fact against the United States and they must be dismissed therefrom; that the United States either owned or has acquired or taken the water rights involved in the suit and that any relief to which the respondents may be entitled by reason of such taking is by suit against the United States under the Tucker Act, 28 U.S.C. § 1346. These conclusions lead to a reversal of the judgment insofar as suit was permitted against the United States through Bureau officials.
2
I. ASPECT OF THE CENTRAL VALLEY RECLAMATION PROJECT INVOLVED.
3
The Project was authorized by the Congress and undertaken by the Bureau of Reclamation of the Department of the Interior pursuant to the Act of August 26, 1937, 50 Stat. 844, 850. It is generally described in sufficient detail for our purposes in United States v. Gerlach Live Stock Co., supra, and Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958). See Graham, The Central Valley Project: Resource Development of a Natural Basin, 38 Cal.L.Rev. 588, 591 (1950), for a description and citation of federal authorizations.
4
The grand design of the Project was to conserve and put to maximum beneficial use the waters of the Central Valley of California,2 comprising a third of the State's territory, and the bowl of which starts in the northern part of the State and, averaging more than 100 miles in width, extends southward some 450 miles. The northern portion of the bowl is the Sacramento Valley, containing the Sacramento River, and the southern portion is the San Joaquin Valley, containing the San Joaquin River. The Sacramento River rises in the extreme north, runs southerly to the City of Sacramento and then on into San Francisco Bay and the Pacific Ocean. The San Joaquin River rises in the Sierra Nevada northeast of Fresno, runs westerly to Mendota and then northwesterly to the Sacramento-San Joaquin Delta where it joins the Sacramento River. The Sacramento River, because of heavier rainfall in its watershed, has surplus water, but its valley has little available tillable soil, while the San Joaquin is in the contrary situation. An imaginative engineering feat has transported some of the Sacramento surplus to the San Joaquin scarcity and permitted the waters of the latter river to be diverted to new areas for irrigation and other needs. This transportation of Sacramento water is accomplished by pumping water from the Sacramento-San Joaquin Delta into the Delta-Mendota Canal, a lift of some 200 feet. The water then flows by gravity through this canal along the west side of the San Joaquin Valley southerly to Mendota, some 117 miles, where it is discharged into the San Joaquin River. The waters of the San Joaquin River are impounded by a dam constructed at Friant, approximately 60 miles upstream from Mendota. Friant Dam stores the water in Millerton Lake from which it is diverted by the Madera Canal on the north to Madera County and the Friant-Kern Canal on the south to the vicinity of Bakersfield for use in those areas for irrigation and other public purposes.
5
The river bed at Friant is at a level approximately 240 Feet higher than at Mendota, 142 F.Supp. 173, which prevents the Sacramento water from being carried further upstream and replenishing the San Joaquin in the 60-mile area between Mendota and Friant Dam, thereby furnishing Sacramento River water for the entire length of the San Joaquin below Friant Dam. This 60-mile stretch of the San Joaquin—and more particularly that between Friant Dam and Gravelly Ford, 37 miles downstream—is the approximate area involved in this litigation. It has been the subject of cooperative studies by the state, local, and federal governments for many years. Indeed the initial planning of the Project recognized, as indicated by the engineering studies included in the plan, that the water flow on the San Joaquin between Friant Dam and Mendota would be severely diminished. See 18 Op.Cal.Atty.Gen. 31, 33—34 (1951). All of the parties recognized the existence of water rights in the area and the necessity to accommodate or extinguish them. Report No. 3, Calif. Water Project Authority, Definition of Rights to the Waters of the San Joaquin River Proposed for Diversion to Upper San Joaquin Valley, 1—2 (1936). The principal alternative, as shown by the reports of the United States Reclamation Bureau to the Congress and the subsequent appropriations of the Congress, was to purchase or pay for infringement of these rights. As early as 1939 the Government entered into negotiations ultimately culminating in the purchase of water rights or agreements for substitute diversions or periodic releases of water from Friant Dam into the San Joaquin River. Graham, The Central Valley Project: Resource Development of a Natural Basin, supra. As of 1952 the United States had entered into 215 contracts of this nature involving almost 12,000 acres, of which contracts some 100 require the United States to maintain a live stream of water in the river.
6
However, agreements could not be reached with some of the claimants along this reach of the river, and this suit resulted.
7
II. HISTORY OF THE LITIGATION.
8
The suit was filed in 1947 and has been both costly and protracted.3 It involves some 325,000 acres of land including a portion of the City of Fresno. See map in 142 F.Supp., at 40. Originally filed in the Superior Court of California, it sought to enjoin local officials of the United States Reclamation Bureau from storing or diverting water to the San Joaquin at Friant Dam or, in the alternative, to obtain a decree of a physical solution of water rights. The action was removed to the United States District Court for the Southern District of California. The named plaintiffs claimed to represent a class of owners of riparian as well as other types of water rights. In addition to the local officials of the Reclamation Bureau two of the Irrigation Districts receiving diverted water from Millerton Lake were originally made defendants and later the other Irrigation and Utility District defendants were joined.
9
The complaint challenged the constitutional authority of the United States to operate the Project. A three-judge court was impaneled pursuant to 28 U.S.C. § 2282, and it decided this issue presented no substantial constitutional question. Rank v. Krug, 90 F.Supp. 773 (D.C.S.D.Cal.1950). This left undecided the question of whether the Secretary of the Interior and Bureau of Reclamation officials had statutory authority to acquire the water rights involved. The issue remained dormant until the Delta-Mendota Canal was completed in 1951, 142 F.Supp., at 45, and the Government began to reduce the flow of water through Friant Dam. By consent, temporary restraining orders were entered controlling the releases covering the years 1951, 1952, and part of 1953. In June of the latter year the United States withdrew its consent with the approval of the Court of Appeals, United States v. United States District Court, 9 Cir., 206 F.2d 303. The District Court then ordered the United States joined as a party on the basis of the McCarran amendment, Act of July 10, 1952, 66 Stat. 560, 43 U.S.C. § 666, infra, n. 5. Friant Dam has, however, been operated by the United States without judicial interference since June 30, 1953.
10
The District Court announced its opinion in the case on February 7, 1956, 142 F.Supp. 1, and the judgment was entered the next year. It declared the water rights of all of the claimants, the members of the class they claimed to represent and the intervenors, Tranquility Irrigation District and the City of Fresno, as against the United States, the Reclamation Bureau officers and the Districts. It did not grant relief as between individual claimants of water rights or adjudicate the priority of these rights among them. 142 F.Supp., at 36. The judgment declared that the claimants
11
'have been, now are, and will be entitled to the full natural flow of the San Joaquin River past Friant at all times * * * unless and until the physical solution hereinelsewhere described is erected and constructed (by the defendants) within a reasonable time, and thereafter operated as hereinelsewhere set forth.' Transcript of Record, Vol. III, p. 993.
12
The physical solution was a series of 10 small dams to be built at the expense of the United States along the stretch of river involved the the purpose of keeping the water at a level 'equivalent' to the natural flow, 142 F.Supp., at 166, or to simulate it at a flow of 2,000 feet per second. 142 F.Supp., at 169.
13
In summary, the court held that the United States was a proper party under the McCarran amendment; that the claimants had vested rights to the full natural flow of the river superior to any rights of the United States or other defendants; that the operation of Friant Dam does not permit sufficient water to pass down the river to satisfy these rights; that Congress has not authorized the taking of these rights by physical seizure but only by eminent domain exercised through judicial proceedings; that as a consequence the impounding at Friant Dam constitutes an unauthorized and unlawful invasion of rights for which damages are not adequate recompense; that this requires all of the defendants, including the United States, to be enjoined from storing or diverting or otherwise impeding the full natural flow of the San Joaquin at Friant Dam unless within a reasonable time and at its own expense the United States, or the Districts, build the dams aforesaid and put them into operation; that the United States is subject to the California county of origin and watershed of origin statutes, Calif. Water Code § 10505, and §§ 11460—11463, and must first satisfy at the same charge as made for agricultural water service the full needs of the City of Fresno and Tranquility Irrigation District before diverting San Joaquin water to other areas; and finally that the United States is also subject to Calif. Water Code §§ 106 and 106.5 as to domestic-use water priority and the power of municipalities to acquire and hold water rights.4
14
The Court of Appeals reversed as to the joinder of the United States, holding that it could not be made a party without its consent. It likewise found that the United States was authorized to acquire, either by physical seizure or otherwise, such of the rights of the claimants as it needed to operate the Project and that this power could not be restricted by state law. However, it found that no such authorized seizure had occurred because the Government had not sufficiently identified what rights it was seizing, and because of this equivocation of the federal officials, there was a trespass rather than a taking. It concluded, therefore, that the petitioner Reclamation Bureau officials had acted beyond their statutory authority and affirmed the injunctive features of the judgment. On rehearing, the injunction was modified to make it inapplicable to the petitioner Districts in No. 115 but the court refused to dismiss as to them.
III. THE UNITED STATES AS A PARTY.
15
We go directly to the question of joinder of the United States as a party. We agree with the Court of Appeals on this issue and therefore do not consider the contention at length. It is sufficient to say that the provision of the McCarran amendment, 66 Stat. 560, 43 U.S.C. § 666,5 relied upon by respondents and providing that the United States may be joined in suits 'for the adjudication of rights to the use of water of a river system or other source,' is not applicable here. Rather than a case involving a general adjudication of 'all of the rights of various owners on a given stream,' S.Rep.No. 755, 82d Cong., 1st Sess. 9 (1951), it is a private suit to determine water rights solely between the respondents and the United States and the local Reclamation Bureau officials. In addition to the fact that all of the claimants to water rights along the river are not made parties, no relief is either asked or granted as between claimants, nor are priorities sought to be established as to the appropriative and prescriptive rights asserted. But because of the presence of local Reclamation Bureau officials and the nature of the relief granted against them, the failure of the action against the United States does not end the matter. We must yet deal with the holding of the Court of Appeals that the suit against these officials is not one against the United States.
IV. RELIEF GRANTED AGAINST FEDERAL OFFICERS
16
The Court of Appeals correctly held that the United States was empowered to acquire the water rights of respondents by physical seizure. As early as 1937, by the Rivers and Harbors Act, 50 Stat. 844, 850, the Congress had provided that the Secretary of the Interior 'may acquire by proceedings in eminent domain, or otherwise, all lands, rights-of-way, water rights, and other property necessary for said purposes * * *.' Likewise, in United States v. Gerlach Live Stock Co., supra, this Court implicitly recognized that such rights were subject to seizure when we held that Gerlach and others were entitled to compensation therefor. The question was specifically settled in Ivanhoe Irrigation District v. McCracken, supra, where we said that such rights could be acquired by the payment of compensation 'either through condemnation or, if already taken, through action of the owners in the courts.' 357 U.S., at 291, 78 S.Ct. at 1183, 2 L.Ed.2d 1313. However, the Court of Appeals, in examining the extent of the taking here, concluded that rather than an authorized taking of water rights, the action of the Reclamation Bureau officials constituted an unauthorized trespass. The court observed that the San Joaquin 'will not be dried up' below Friant because the Government has contracted with other water right owners to maintain 'a live stream,' and as the flow of water varies from day to day the respondents do not now and never will know what part of their claimed water rights the Government has taken or will take.
17
'A casual day by day taking under these circumstances constitutes day to day trespass upon the water right. * * * The cloud cast prospectively on the water right by the assertion of a power to take creates a present injury above what has been suffered by the interference itself—a present loss in property value which cannot be compensated until it can be measured.' 293 F.2d, at 358.
18
The court, therefore, permitted the suit against the petitioning Reclamation Bureau officers as one in trespass, which led it to affirm, with modification, the injunctive relief granted by the District Court.
19
Rather than a trespass, we conclude that there was, under respondents' allegations, a partial taking of respondents' claimed rights. We believe that the Court of Appeals incorrectly applied the principle of Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949), and other cases in the field of sovereign immunity. The general rule is that a suit is against the sovereign if 'the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,' Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947), or if the effect of the judgment would be 'to restrain the Government from acting, or to compel it to act.' Larson v. Domestic & Foreign Corp., supra, 337 U.S. at 704, 69 S.Ct. at 1468, 93 L.Ed. 1628; Ex parte New York, 256 U.S. 490, 502, 41 S.Ct. 588, 591, 65 L.Ed. 1057 (1921). The decree here enjoins the federal officials from impounding, or diverting, or storing for diversion, or otherwise impeding or obstructing the full natural flow of the San Joaquin River. * * *.' Transcript of Record, Vol. III, p. 1021. As the Court of Appeals found, the Project 'could not operate without impairing, to some degree, the full natural flow of the river.' Experience of over a decade along the stretch of the San Joaquin involved here indicates clearly that the impairment was most substantial—almost three-fourths of the natural flow of the river. To require the full natural flow of the river to go through the dam would force the abandonment of this portion of a project which has not only been fully authorized by the Congress but paid for through its continuing appropriations. Moreover, it would prevent the fulfillment of the contracts made by the United States with the Water and Utility Districts, which are petitioning in No. 115. The Government would, indeed, be 'stopped in its tracks * * *.' Larson v. Domestic & Foreign Corp., supra, 337 U.S. at 704, 69 S.Ct. at 1468, 93 L.Ed. 1628.
20
The physical solution has no less direct effect. The Secretary of the Interior, the President and the Congress have authorized the Project as now constructed and operated. Its plans do not include the 10 additional dams required by the physical solution to be built at government expense. The judgment, therefore, would not only 'interfere with the public administration' but also 'expend itself on the public treasury * * *.' Land v. Dollar, supra, 330 U.S. at 738, 67 S.Ct. at 1012, 91 L.Ed. 1209. Moreover, the decree would require the United States contrary to the mandate of the Congress—to dispose of valuable irrigation water and deprive it of the full use and control of its reclamation facilities. It is therefore readily apparent that the relief granted operates against the United States.
21
Nor do we believe that the action of the Reclamation Bureau officials falls within either of the recognized exceptions to the above general rule as reaffirmed only last Term. Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168. See Larson v. Domestic & Foreign Corp., supra; Santa Fe Pac. R. Co. v. Fall, 259 U.S. 197, 199, 42 S.Ct. 466, 467, 66 L.Ed. 896 (1922); Scranton v. Wheeler, 179 U.S. 141, 152—153, 21 S.Ct. 48, 52—53, 45 L.Ed. 126 (1900). Those exceptions are (1) action by officers beyond their statutory powers and (2) even though within the scope of their authority, the powers themselves or the manner in which they are exercised are constitutionally void. Malone v. Bowdoin, supra, 369 U.S. at 647, 82 S.Ct. at 983, 8 L.Ed.2d 168. In either of such cases the officer's action 'can be made the basis of a suit for specific relief against the officer as an individual * * *.' Ibid. But the fact that the Court of Appeals characterized the action of the officers as a 'trespass' does not at all establish that it was either unconstitutional or unauthorized. As this Court said in Larson, supra, 337 U.S. at 693, 69 S.Ct. at 1463, 93 L.Ed. 1628:
22
'The mere allegation that the officer, acting officially, wrongfully holds property to which the plaintiff has title does not meet (the) requirement (that it must also appear that the action to be restrained or directed is not action of the sovereign). True, it establishes a wrong to the plaintiff. But it does not establish that the officer, in committing that wrong, is not exercising the powers delegated to him by the sovereign.'
And, the Court added:
23
'the action of an officer of the sovereign (be it holding, taking or otherwise legally affecting the plaintiff's property) can be regarded as so 'illegal' as to permit a suit for a specific relief against the officer as an individual only if it 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.' Id., at 701—702, 69 S.Ct. at 1467, 93 L.Ed. 1628.
24
Since the Government, through its officers here, had the power, under authorization of Congress, to seize the property of the respondents, as held by the Court of Appeals and recognized by several cases in this Court, and this power of seizure was constitutionally permissible, as we held in Ivanhoe, supra, there can be no question that this case comes under the rule of Larson and Malone, supra. The power to seize which was granted here had no limitation placed upon it by the Congress, nor did the Court of Appeals bottom its conclusion on a finding of any limitation. Having plenary power to seize the whole of respondents' rights in carrying out the congressional mandate, the federal officers a fortiori had authority to seize less. It follows that if any part of respondents' claimed water rights were invaded it amounted to an interference therewith and a taking thereof—not a trespass.
25
We find no substance to the contention that respondents were without knowledge of the interference or partial taking. Nor can we accept the view that the absence of specificity as to the amount of water to be taken prevents the assessment of damages in this case. From the very beginning it was recognized that the operation of Friant Dam and its facilities would entail a taking of water rights below the dam. Indeed, it was obvious from the expressed purpose of the construction of the dam—to store and divert to other areas the waters of the San Joaquin—and the intention of the Government to purchase water rights along the river.6 Pursuant to this announced intention the Government did in fact enter into numerous contracts for water rights, as we have previously noted. While it is true, as the Court of Appeals observed, that the Government did not announce that it was taking water rights to a specified number of 'gallons' or, for that matter, 'inches' of water, see 293 F.2d 340, 357—358, we do not think this quantitative uncertainty precludes ascertainment of the value of the taking. On this point we conclude that the Court of Appeals was in error. We find no uncertainty in the taking.
26
It is likely that an element of undertainty may have been drawn by the Court of Appeals from the Secretary of the Interior's statement in a letter that the operation of Friant Dam 'is an administrative one, voluntarily assumed and voluntarily to be executed.' 293 F.2d 340, 356, n. 8. This alone might present a picture of a spillway being opened and closed at the whim of the Secretary. We view this statement, however, as merely notice to the court that the Secretary intended to operate the water works fairly, but solely on his own, without court interference. Neither he nor the United States was a party. Even if the statement did introduce an element of uncertainty as to what exactly the Secretary might do, injunctive relief was not proper. Despite this caveat, damages were clearly ascertainable (see Collier v. Merced Irrigation District, 213 Cal. 554, 571—572, 2 P.2d 790, 797 (1931)), based partially on the Secretary's prior unequivocal statement regarding his plans as to the minimum flow of water to be released into the river below the dam.7 Parenthetically, we note that petitioners, in their brief, at p. 12, inform us that 'Friant Dam has since been operated in accordance with the Secretary's stated plan, subject to adjustments required by weather and other conditions.'
27
Damages in this instance are to be measured by the difference in market value of the respondents' land before and after the interference or partial taking. As the Supreme Court of California said in Collier v. Merced Irrigation District, supra, at 571—572, 2 P.2d at 797.
28
'* * * (T)he riparian right is a part and parcel of the land in a legal sense, yet it is a usufructuary and intangible right inhering therein and neither a partial nor a complete taking produces a disfigurement of the physical property. The only way to measure the injury done by an invasion of this right is to ascertain the depreciation in market value of the physical property. * * * There was a distinct conflict in the evidence as to whether the lands of appellant had a greater or a less market value after the taking by respondent, but there is no question of law arising on the evidence.'
29
The right claimed here is to the continued flow of water in the San Joaquin and to its use as it flows along the landowner's property. A seizure of water rights need not necessarily be a physical invasion of land. It may occur upstream, as here. Interference with or partial taking of water rights in the manner it was accomplished here might be analogized to interference or partial taking of air space over land, such as in our recent case of Griggs v. Allegheny County, 369 U.S. 84, 89—90, 82 S.Ct. 531, 533—534, 7 L.Ed.2d 585 (1962). See United States v. Causby, 328 U.S. 256, 261—263, 267, 66 S.Ct. 1062, 1065—1067, 1068—1069, 90 L.Ed. 1206 (1946); Portsmouth Co. v. United States, 260 U.S. 327, 329, 43 S.Ct. 135, 136—137, 67 L.Ed. 287 (1922). See also 1 Wiel, Water Rights in the Western States (3d ed. 1911), § 15; 2 Nichols, Eminent Domain (3d ed. 1950), § 6.3. Therefore, when the Government acted here 'with the purpose and effect of subordinating' the respondents' water rights to the Project's uses 'whenever it saw fit,' 'with the result of depriving the owner of its profitable use, (there was) the imposition of such a servitude (as) would constitute an appropriation of property for which compensation should be made.' Peabody v. United States, 231 U.S. 530, 538, 34 S.Ct. 159, 160, 58 L.Ed. 351 (1913); Portsmouth Co. v. United States, supra, 260 U.S. at 329, 43 S.Ct. at 136—137, 67 L.Ed. 287.
30
In an appropriate proceeding there would be a determination of not only the extent of such a servitude but the value thereof based upon the difference between the value of respondents' property before and after the taking. Rather than a stoppage of the government project, this is the avenue of redress open to respondents. Since we have set aside the judgments of both the Court of Appeals and the District Court, it is appropriate that we make clear that we do not in any way pass upon or indicate any view regarding the validity of respondents' water right claims.
31
V. THE IRRIGATION AND UTILITY DISTRICTS.
32
Similar disposition must be made of No. 115. There the petitioners are 14 Irrigation and Utility Districts which have contracts with the Government for the use of water from Millerton Lake. The Court of Appeals, as we have noted, dissolved the injunction previously granted against them by the District Court. No other relief having been sought against the Districts, it appears that they should have been dismissed from the action. In any event, in view of our disposition of No. 31, dismissal of these petitioners is now in order.
33
The judgment as to the dismissal of the United States is affirmed; it is reversed as to the failure to dismiss the Reclamation officials and the Irrigation and Utility Districts, and the cases are remanded to the Court of Appeals with directions that it vacate the judgment of the District Court and remand the case with instructions that the same be dismissed. It is so ordered.
34
Judgment affirmed as to dismissal of the United States, reversed as to failure to dismiss Reclamation officials and Irrigation and Utility Districts, and cases remanded with directions.
35
THE CHIEF JUSTICE took no part in the consideration or decision of these cases.
1
A procedure authorized by California law whereby existing rights to the use of water are protected and excess waters are put to beneficial use.
2
See the Feasibility Report of Secretary Ickes to President Franklin D. Roosevelt, dated November 26, 1935, and approved by the President on December 2, 1935, reprinted in 90 F.Supp. 823—827 and in 1 Engle, Central Valley Project Documents, H.R.Doc.No.416, 84th Cong., 2d Sess. 562—567 (1956).
3
The trial, which lasted more than 200 days, required 30,000 pages of record and produced hundreds of orders. Opinions below are State v. Rank, 293 F.2d 340 (C.A.9th Cir., 1961); Rank v. United States (Krug), 142 F.Supp. 1 (D.C.S.D.Cal.1956). Related cases involving intermediate orders of the District Court are Rank v. Krug, 90 F.Supp. 773 (D.C.S.D.Cal.1950); United States v. United States District Court, 206 F.2d 303 (C.A.9th Cir., 1953); California v. United States District Court, 213 F.2d 818 (C.A.9th Cir., 1954); Rank v. United States, 16 F.R.D. 310 (D.C.S.D.Cal.1954); City of Fresno v. Edmonston, 131 F.Supp. 421 (D.C.S.D.Cal.1955).
4
The last two sections of the judgment are dealt with in cause No. 51, City of Fresno v. California, 372 U.S. 627, 83 S.Ct. 996.
5
43 U.S.C. § 666:
'(a) Consent is given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a party to any such suit, shall (1) be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances: Provided, That no judgment for costs shall be entered against the United States in any such suit.
'(b) Summons or other process in any such suit shall be served upon the Attorney General or his designated representative.
'(c) Nothing in this section shall be construed as authorizing the joinder of the United States in any suit or controversy in the Supreme Court of the United States involving the right of States to the use of the water of any interstate stream.' July 10, 1952, c. 651, Title II, § 208, 66 Stat. 560.
6
See not 2, supra.
7
On March 30, 1953, in response to a request from the district judge that the Secretary clarify his position, a letter was written by the Secretary to the Attorney General expressing his 'administrative intent with respect to the operation of the Central Valley project insofar as it relates to the Friant-to-Gravelly Ford reach of the San Joaquin River.' The letter specified that:
'. . . the Department will release from Friant Reservoir into the bed of the river a sufficient quantity of water (1) to meet all valid legal requirements for the reasonable and beneficial use of water, both surface and underground, by reasonable methods of diversion and reasonable methods of use in that area, and (2) to provide, in addition thereto, a continuous live stream flowing at a rate of not less than five cubic feet per second at specified control points throughout the Friant-to-Gravelly Ford area, the last one to be at a point approximately one-half mile below the head of the Gravelly Ford Canal.' Transcript of Record, Vol. VII, p. 388, n . 8.
| 78
|
372 U.S. 697
83 S.Ct. 967
10 L.Ed.2d 78
DIXILYN DRILLING CORPORATION, Petitioner,v.CRESCENT TOWING AND SALVAGE COMPANY.
No. 297.
Argued March 21, 1963.
Decided April 15, 1963.
E. D. Vickery, Houston, Tex., for petitioner.
Charles Kohlmeyer, Jr., New Orleans, La., for respondent.
PER CURIAM.
1
Respondent Crescent Towing Company contracted with petitioner Dixilyn Drilling Corporation to tow Dixilyn's barge Julie Ann down the Mississippi River. While being towed, the barge collided with a bridge, and the bridge owners filed a libel in the United States District Court claiming damages from the tower and the barge owner. These two jointly paid the claim but continued to litigate, as between themselves, the question of which was liable. The district judge after a full trial found that the collision and the resulting damage were due solely to the negligence of the tower. He also rejected the tower's argument that regardless of which was negligent the barge owner should pay the damages because it had contracted to assume liability for all damages arising out of the towage including 'any damage claims urged by third parties.' The judge held that the barge owner had not agreed to assume liability for damages caused by the tower's own negligence. On review the Court of Appeals held that it need not decide the 'extremely difficult' factual question of who was negligent because, in the court's view, the barge owner had agreed in the towage contract to assume liability for all losses arising out of the towage, including those caused by the tower's negligence. Holding such a contract to be valid, the Court of Appeals reversed the District Court's judgment.
2
In treating as valid a contract which exempts the tower from liability for its own negligence, the Court of Appeals' holding is squarely in conflict with our holding in Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955), and Boston Metals Co. v. The Winding Gulf, 349 U.S. 122, 75 S.Ct. 649, 99 L.Ed. 933 (1955). The Court of Appeals thought that the present case was distinguishable because the peculiar hazards of towage and other factors brought it within the ambit of Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U.S. 411, 79 S.Ct. 1210, 3 L.Ed.2d 1334 (1959). But Southwestern Sugar is not applicable here, for in that case the Court merely preferred to give the Interstate Commerce Commission an opportunity to rule on an exculpatory clause which was part of a tariff filed with the Commission. We adhere to the rule laid down in Bisso and Winding Gulf and hold that the Court of Appeals was in error in failing to follow it. The judgment is reversed and the cause remanded to that court to consider other questions.
3
Reversed and remanded.
4
Mr. Justice HARLAN, concurring.
5
While I would prefer to see Bisso reconsidered, believing, with deference, that it was wrongly decided, I nevertheless join the opinion of the Court. Certainty in the law governing commercial transactions of this kind is an overriding consideration which would not be promoted by opening the Bisso rule to indeterminate exceptions in instances where, unlike Southwestern Sugar, no functions of a regulatory agency are involved.
| 78
|
372 U.S. 710
83 S.Ct. 1020
10 L.Ed.2d 126
Nathan Boyd HOLMESv.CALIFORNIA et al.
No. 70, Misc.
Supreme Court of the United States
April 15, 1963
Holmes, pro se.
Stanley Mosk, Atty. Gen. of California, and William E. James, Asst. Atty. Gen., for respondents.
On Petition for Writ of Certiorari to the District Court of Appeal of California, Second Appellate District.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Douglas v. California, 372 U.S. 353, 83 S.Ct. 814.
2
Mr. Justice CLARK and Mr. Justice HARLAN dissent for the reasons stated in their opinions in Douglas v. California, 372 U.S. 358. 360, 83 S.Ct. 817, 818.
3
Mr. Justice White took no part in the consideration or decision of this case.
| 12
|
372 U.S. 627
83 S.Ct. 996
10 L.Ed.2d 28
CITY OF FRESNO, Petitioner,v.STATE OF CALIFORNIA, United States of America, et al.
No. 51.
Argued Jan. 7, 1963.
Decided April 15, 1963.
Claude L. Rowe, Fresno, Cal., for petitioner.
Sol. Gen. Archibald Cox for respondents.
Mr. Justice CLARK delivered the opinion of the Court.
1
This case arises out of Dugan v. Rank, 371 U.S. 609, 83 S.Ct. 999. As set out in our opinion in that case the original suit was instituted against certain local United States Reclamation Bureau officials and several Irrigation and Utility Districts by a number of claimants to water rights along the San Joaquin River below Friant Dam. Subsequently the United States, over its protest, was made a party and the petitioner here, the City of Fresno, intervened as a party plaintiff. Fresno sought, in addition to the injunctive relief requested by the other parties, a declaration as to (1) its water rights as an overlying owner, i.e., rights to underground water fed by the river; (2) its statutory priority, under California law, to the use of water for municipal or domestic purposes, Calif. Water Code, § 1460; (3) its prior right, under the California County of Origin and Watershed Acts, because of its location, Calif. Water Code, §§ 11460, 11463; and (4) its entitlement to project water from the United States at the same rate charged for water delivered for irrigation purposes. In the District Court Fresno prevailed on all points. In the Court of Appeals this judgment was set aside 'insofar as it relates to the terms upon which the City of Fresno is entitled to receive water from the United States at Friant Dam,' 293 F.2d 340, 360, because in establishing the rate at which water would be delivered the respondent officials were acting 'within the scope of their statutory authority and were carrying out the duties imposed upon them by their official positions. * * * The complaint of Fresno in this regard is a complaint against the United States and this dispute may not be entertained judicially without a waiver of sovereign immunity on the part of the United States.' Id., at 352. With regard to the claim that it enjoyed water rights superior to those of the United States, the Court of Appeals refused to decide, saying on rehearing that '(I)f and when such rights have been established in accordance with state law, Fresno may be able effectively to protest the impounding of waters by these defendants in contravention of such rights.' Id., at 360.
2
Our opinion in Dugan v. Rank, supra, controls the decision in this case. There we decided that the suit against the United States must fail for lack of consent; that the relief against the Reclamation Bureau officials must also fail as being in truth against the United States; that the United States had seized, in whole or in part, the water rights asserted by the claimants; and that their recourse was through a Tucker Act suit. 28 U.S.C. § 1346. The same is true here.
3
We agree entirely with the disposition of the Court of Appeals. Petitioner seems to say that § 8 of the Reclamation Act of 1902, 32 Stat. 390, 43 U.S.C. § 383, requires compliance with California statutes relating to preferential rights of counties and watersheds of origin and to the priority of domestic over irrigation uses. However, § 8 does not mean that state law may operate to prevent the United States from exercising the power of eminent domain to acquire the water rights of others. This was settled in Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958). Rather, the effect of § 8 in such a case is to leave to state law the definition of the property interests, if any, for which compensation must be made.
4
We also note that the County of Origin and Watershed Acts, upon which the city relies, do not grant the preference claimed. Under these statutes the area of preference is '* * * a watershed or area wherein water originates, or an area immediately adjacent thereto which can conveniently be supplied with water therefrom * * *.' Calif.Water Code, § 11460. The area of service from Friant Dam would include Kern and Tulare Counties as well as Fresno and Madera. (See map in Rank v. United States, D.C., 142 F.Supp. 1, at 40.) The preference under the Acts is not limited to that area closest to the stream, but extends beyond the watershed and to areas adjacent thereto which can 'conveniently be supplied with water therefrom,' which from the map would seem to include the Friant-Kern as well as the Madera Canal areas. Likewise, the claim as to the preference of water devoted to domestic uses is unfounded. Section 9(c) of the Reclamation Project Act of 1939, 53 Stat. 1194, as amended, 43 U.S.C. § 485h(c), provides: 'No contract relating to municipal water supply or miscellaneous purposes * * * shall be made unless, in the judgment of the Secretary (of the Interior), it will not impair the efficiency of the project for irrigation purposes.' In United States v. Gerlach Live Stock Co., 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231 (1950), we were concerned with an issue regarding the nature of the Friant Dam unit of the Project and, contrary to petitioner's contention, concluded 'that Congress realistically elected to treat it as a reclamation project.' Id., at 739, 70 S.Ct. at 962. It therefore appears clear that Fresno has no preferential rights to contract for project water, but may receive it only if, in the Secretary's judgment, irrigation will not be adversely affected.
5
As to the rates charged for municipal water, this same § 9(c), supra, delegates authority and discretion to the Secretary of the Interior to fix rates covering irrigation as well as municipal water service. It provides that the yardstick for determining rates shall be such 'as in the Secretary's judgment will produce revenues at least sufficient to cover an appropriate share of the annual operation and maintenance cost and an appropriate share of such fixed charges as the Secretary deems proper * * *.' The Secretary exercised this discretion and so notified the Congress as to the basis for his determination of the appropriate charge for municipal water. Allocation of Costs and Feasibility Report of February 24, 1947, H.R.Doc. No. 146, 80th Cong., 1st Sess. 19; 1 Engle, Central Valley Project Doc. (1956), H.R.Doc. No. 416, 84th Cong., 2d Sess. 574, 594—596. This report estimated a rate of $10 per acre-foot for municipal water and about $3 per acrefoot foot or less for irrigation water. Id., at 594—596. The latter rate was based on farm benefits as well as the ability of the user to pay over a protracted period. It was estimated that this rate would return during the repayment period only about one-fourth of the project capital cost allocated to irrigation. Id., at 576—577, 597. As to municipal rates, the return during the same period was estimated at over three times the project capital cost allocated to the delivery of municipal water.* This surplus, together with that from project electric energy, would be used to pay project costs allocated to irrigation but which were beyond the ability of the irrigators to pay. Congress has been kept advised as to the manner in which these rate schedules are operating. 2 Engle, Central Valley Projects Doc. (1957), H.R.D.oc. No. 246, 85th Cong., 1st Sess. 79—84, 261 262.
6
In accordance with the Secretary's estimates, long-term contracts for Friant Dam water provide for a rate of $3.50 per acre-foot for Class 1 water and $1.50 for Class 2, while contracts for municipal water supply call for $10 per acre-foot. It appears amply clear that the Reclamation Bureau officials were acting entirely within the scope of their authority in operating the Project in this manner and fixing the rates for water in accordance with congressional mandate, all of which has specifically received our approval in Ivanhoe Irrigation District v. McCracken, supra, 357 U.S. at 295, 78 S.Ct. at 1185.
7
The judgment, insofar as it relates to this petition of the City of Fresno, is affirmed and the case remanded to the Court of Appeals with directions to vacate the judgment of the District Court and remand the case with instructions to dismiss the same. It is so ordered.
8
Judgment affirmed in part and case remanded with directions.
9
THE CHIEF JUSTICE took no part in the consideration or decision of this case.
*
The payments for irrigation water amounted to $58,545,475, while project capital cost allocated to irrigation was $221,551,600. Municipal water rates would return $29,667,932, while project capital cost allocated to municipal water supply was $9,091,800.
| 78
|
372 U.S. 658
83 S.Ct. 984
10 L.Ed.2d 52
ARROW TRANSPORTATION COMPANY et al., Petitioners,v.SOUTHERN RAILWAY COMPANY et al.
No. 430.
Argued Jan. 10, 1963.
Decided April 15, 1963.
John C. Lovett, Benton, Ky., for petitioners.
Ralph S. Spritzer, Washington, D.C., for the United States, as amicus curiae, by special leave of Court.
Dean Acheson, Washington, D.C., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
A schedule of reduced rates proposed by the respondent rail carriers was suspended by the Interstate Commerce Commission for the maximum statutory period of seven months pending a determination whether the reduction was lawful. The statute1 expressly provides that 'the proposed change of rate * * * shall go into effect,' if the Commission's proceeding has not been concluded and an order made within the period of suspension. The Commission did not reach a decision within seven months, or within the following five months during which the respondents voluntarily postponed the change, and the respondents announced that the reduced rates would be put in effect. Thereupon the petitioners2 brought this action in the District Court for the Northern District of Alabama to enjoin the respondents from making the change effective pending the Commission's decision. The District Court concluded after examination of the pleadings and a brief hearing that 'there is grave danger that irreparable injury, loss or damage may be inflicted on * * * (petitioners) if the proposed rates go into effect * * * for which * * * (petitioners) will have no adequate remedy at law.'3 The court held, however, that § 15(7) vested exclusive power in the Commission to suspend a change of rate for a limited time and thereby precluded District Court jurisdiction to grant injunctive relief extending the statutory period. The Court of Appeals for the Fifth Circuit affirmed, stating, 'Congress, in its wisdom, has fixed seven months as the maximum period of suspension. It seems clear to us that if the courts extend that period, they are in effect amending the statute and that is a matter beyond their power.' 308 F.2d 181, 186. We granted certiorari, 371 U.S. 859, 83 S.Ct. 121, 9 L.Ed.2d 98.4 We affirm the judgment of the Court of Appeals.
I.
2
The Interstate Commerce Commission was granted no power to suspend proposed rate changes in the original Act of 1887. That power first appeared among the 1910 amendments introduced by the Mann-Elkins Act.5 The problem as to whether the application of new rates might be stayed pending decision as to their lawfulness first emerged after the Commission was empowered by the Hepburn Act of 1906 to determine the validity of proposed rates. In the absence of any suspension power in the Commission, shippers turned to the courts for injunctive relief. The results were not satisfactory. The lower federal courts evinced grave doubt whether they possessed any equity jurisdiction to grant such injunctions, and the availability of relief depended on the view of a particular court on this much controverted issue.6 The Interstate Commerce Commission was more concerned, however, with certain practical consequences of leaving the question with the courts. In its Annual Reports for the three years before 1910 the Commission had directed attention to the fact that such courts as entertained jurisdiction were reaching diverse results, which engendered confusion and produced competitive inequities. The large expense entailed in prosecuting an action and financing a substantial bond proved prohibitive for many small shippers of modest means. Even when a large shipper secured an injunction, the scope of its relief often protected only that particular shipper, leaving his weaker competitors at the mercy of the new rate.7 Therefore, the Commission reported to Congress, '* * * as a practical matter the small shipper who can not file the bond can not and does not continue in business under the higher rate.' I.C.C. Annual Report, 1908, p. 12. As an equally serious consequence, the regulatory goal of uniformity was jeopardized by the diverse conclusions reached by different District Courts—even, it appears, as to the reasonableness of a particular rate change. This resulted in disparity of treatment as between different shippers, carriers, and sections of the country, causing in turn 'discrimination and hardship to the general public.' I.C.C. Annual Report, 1907, p. 10.
3
It cannot be said that the legislative history of the grant of the suspension power to the Commission includes unambiguous evidence of a design to extinguish whatever judicial power may have existed prior to 1910 to suspend proposed rates. However, we cannot suppose that Congress, by vesting the new suspension power in the Commission, intended to give backhanded approval to the exercise of a judicial power which had brought the whole problem to a head.
4
Moreover, Congress engaged in a protracted controversy concerning the period for which the Commission might suspend a change of rates. Such a controversy would have been a futile exercise unless the Congress also meant to foreclose judicial power to extend that period. This controversy spanned nearly two decades. At the outset in 1910, the proposal for conferring any such power on the Commission was strenuously opposed. The carriers contended that any postponement of rate changes would result in loss of revenue or competitive advantages fairly due them in the interim if the rates were finally determined to be lawful. But this opposition eventually took the form of efforts to limit the time for which suspension might be ordered by the Commission.8 The Mann-Elkins Act authorized a suspension for an initial period not to exceed 120 days with a discretionary power in the Commission to extend the period for a maximum additional six months.9 Ten years later the Esch-Cummins Act of 1920 cut the authorized period of extension from six months to 30 days,10 thus reducing from 10 to five months the overall period for which the Commission might order a suspension. Congress was aware throughout the consideration of these measures that some shippers might for a time have to pay unlawful rates because a proceeding might not be concluded and an order made within the reduced time.11 To mitigate that hardship, the 1920 amendments authorized the Commission in such cases to require the carriers to keep detailed accounts of charges collected and to order refunds of excess charges if the Commission ultimately found the rates to be unlawful.12 The suspension provisions took their present form, vesting authority in the Commission to suspend for a maximum period of seven months, in the Act of 1927.13 The accounting and refund provisions of the 1920 law remained. Thus, as we have observed before, the present limitation was 'formed after much experimentation with the period of suspension * * *.' Interstate Commerce Comm'n v. Inland Waterways Corp., 319 U.S. 671, 689, 63 S.Ct. 1296, 1306, 87 L.Ed. 1655.
5
We cannot believe that Congress would have given such detailed consideration to the period of suspension unless it meant thereby to vest in the Commission the sole and exclusive power to suspend and to withdraw from the judiciary any pre-existing power to grant injunctive relief. This Court has previously indicated its view that the present section had that effect. In board of Railroad Comm'rs v. Great Northern R. Co., 281 U.S. 412, 429, 50 S.Ct. 391, 396, 74 L.Ed. 936, Chief Justice Hughes said for the Court: 'This power of suspension was entrusted to the Commission only.'14 The lower federal courts have also said as much.15 And the commentators of the matter have consistently supported the soundness of that view.16
6
There is, of course, a close nexus between the suspension power and the Commission's primary jurisdiction to determine the lawfulness and reasonableness of rates, a jurisdiction to which this Court had, even in 1910, already given the fullest recognition. Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553.17 This relationship suggests it would be anomalous if a Congress which created a power of suspension in the Commission because of the dissonance engendered by recourse to the injunction nevertheless meant the judicial remedy to survive. The more plausible inference is that Congress meant to foreclose a judicial power to interfere with the timing of rate changes which would be out of harmony with the uniformity of rate levels fostered by the doctrine of primary jurisdiction.
7
It must be admitted that Congress dealt with the problem as it affected the relations between shippers and carriers, making no express reference to the interests of competing carriers and their customers such as are involved in the instant case. We see no warrant in that omission, however, for a difference in result. Conflicts over rates between competing carriers were familiar to the Commission long before 1910;18 indeed, the struggle between competing barge and rail carriers has been going on almost since railroads came onto the national scene. Indeed, in another provision of the very same statute Congress in 1910 dealt explicitly with the reduction of rates by railroads competing with water carriers: Section 4(2) of the Act forbids a rail carrier competing with a water carrier to increase rates once reduced on a competitive service, unless 'after hearing by the Commission it shall be found that such proposed increase rests upon changed conditions other than the elimination of water competition.' 49 U.S.C. § 4(2). In addition § 8 of the Act, 49 U.S.C. § 8, creates a private right of action for damages—based upon conduct violative of the Act—which might be available, though we have no occasion here to decide the question, to a competitor claiming that a proposed rate reduction had been grossly discriminatory. Our holding today therefore means only that the injunction remedy is not available to these petitioners, just as it is unavailable to shippers.
II.
8
Our conclusion from the history of the suspension power is buttressed by a consideration of the undesirable consequences which would necessarily attend the survival of the injunction remedy. A court's disposition of an application for injunctive relief would seem to require at least some consideration of the applicant's claim that the carrier's proposed rates are unreasonable. But such consideration would create the hazard of forbidden judicial intrusion into the administrative domain.19 Judicial cognizance of reasonableness of rates has been limited to carefully defined statutory avenues of review.20 These considerations explain why courts consistently decline to suspend rates when the Commission has refused to do so, or to set aside an interim suspension order of the Commission.21 If an independent appraisal of the reasonableness of rates might be made for the purpose of deciding applications for injunctive relief, Congress would have failed to correct the situation so hazardous to uniformity which prompted its decision to vest the suspension power in the Commission. Moreover, such a procedure would permit a single judge to pass before final Commission action upon the question of reasonableness of a rate, which the statute expressly entrusts only to a court of three judges reviewing the Commission's completed task.22
9
Nor is the situation different in this case if it be suggested that a court of equity might rely upon the Commission's finding of unreasonableness which preceded the Commission's suspension order. The Commission's consideration of the question, through its Suspension Board, involves only a brief and informal hearing.23 Automatic judicial acceptance of a finding reached in that way would delegate greater effect to such an administrative process than the process itself warrants. As the basis for a judicial decree of a single district judge, such a procedure would be inconsistent with § 15 (1) of the Act, which provides that effective rates may be struck down as unlawful after a 'full hearing' by the Commission.24
III.
10
The petitioners contend that in any event injunctive relief is authorized in this case to enforce the National Transportation Policy.25 They argue that when the rail carriers' rates go into effect the barge line will inevitably and immediately be driven out of business, contrary to the paramount concern of the policy for the portection of water carriers threatened by rail competition. Apart from the absence of any decisive showing that the barge line would suffer this misfortune, it is clear that nothing in the National Transportation Policy, enacted many years after the 1927 revision of § 15(7), indicates that Congress intended to revive a judicial power which we have found was extinguished when the suspension power was vested in the Commission. Cf. United States v. Borden Co., 308 U.S. 188, 198—199, 60 S.Ct. 182, 188, 84 L.Ed. 181. Indeed, if anything, the policy reinforces our conclusion. The mandate to achieve a balance between competing forms of transportation is directed not to the courts but to the Commission.26 It is reasonable to suppose that had Congress felt that balance to be in danger of distortion, it would have addressed itself to our problem directly by enhancing the powers granted the Commission to enforce the policy. Surely Congress would not have meant its silence alone to imply the revival of a judicial remedy the exercise of which might well defeat rather than promote the objectives of the National Transportation Policy.
11
Affirmed.
12
Mr. Justice CLARK, with whom THE CHIEF JUSTICE and Mr. Justice BLACK join, dissenting.
13
The Court by its action today sounds the death knell for barge transportation on the Tennessee River. The war of extermination between the railroads and barge lines began years ago, and, as Chairman Eastman said in Petroleum Products From New Orleans, La., Group, 194 I.C.C. 31, 44 (1933), has been effected 'by (the railroads) cutting rates where the (barge) competition existed, to whatever extent was necessary to paralyze it, at the same time maintaining rates at a very high level elsewhere.' Indeed, this Court has on many occasions had to protect barge lines from such unlawful practices, even in cases where railroad rate activity has received approval of the Interstate Commerce Commission. See Dixie Carriers, Inc. v. United States, 351 U.S. 56, 76 S.Ct. 578, 100 L.Ed. 934 (1956), and Interstate Commerce Comm'n v. Mechling, 330 U.S. 567, 67 S.Ct. 894, 91 L.Ed. 1102 (1947). See also Arrow Transp. Co. v. United States, 176 F.Supp. 411 (D.C.N.D.Ala.1959). And just a few months ago there was filed here in No. 746, Mechling Barge Lines, Inc., v. United States, another case in which the appellants contend that the same old practices were employed. Although the Court admits that 'It cannot be said that the legislative history * * * (of the suspension power of the Commission, § 15(7)) includes unambiguous evidence of a design to extinguish * * * judicial power * * *,' it nevertheless strips the courts of any power to prevent (1) the collection by the railroads of 'rates and charges * * * which would be unjust and unreasonable, in violation of the Interstate Commerce Act, and constitute unfair and destructive competitive practices in contravention of the National Transportation Policy * * *' as found by the Interstate Commerce Commission;1 (2) the frustration of the National Transportation Policy under which Congress has commanded the Commission to preserve each medium of transportation against unlawful and destructive practices and to guard against the consequences of discrimination; (3) the complete destruction of competing barge lines as well as gross discrimination against shippers and localities along the Tennessee River. I agree with the United States, which has filed at our suggestion an amicus curiae brief, that where 'a competing carrier will be destroyed and others will suffer gross discrimination and injury before the administrative proceeding is terminated,' the appropriate federal court does have the power to enjoin such an extraordinary injury pending decision of the Commission.
I.
14
The conclusions below that the proposed rate reductions will likely force the barge line out of business are not disputed. As the District Court found, there was 'grave danger that irreparable injury, loss or damage may be inflicted * * * if the proposed rates go into effect' and that petitioners 'will have no adequate remedy at law.' On its face the rate reduction is but a continuation of the old policy found by Chairman Eastman to paralyze barge operations—activity to which the Court now gives its blessing—by a drastic reduction in the present all-rail rate on multiple-car grain shipments while maintaining the higher rate on the exbarge traffic. The new rate for the haul from St. Louis to Birmingham, reduced from $8.70 per ton to a mere $3.12, is an example which illustrates the effect of the proposed rate reduction. Arrow's present rate for shipments between those points is $5.48, including expense to Arrow of $2.20 for the 71-mile rail leg from Guntersville, Alabama, to Birmingham and 89¢ for transferring the grain from the barge to the rails at Guntersville, which leaves it only $2.39 for transportation by barge. In order to meet Southern's new rate Arrow would have to reduce by $2.36 its charge allocable to water travel, which would leave it exactly 3¢ per ton for that haul. I note further that the all-rail rate for the St. Louis-Birmingham haul is only 92¢ more than the charge to Arrow for the 71-mile Guntersville-Birmingham rail trip. The result of the effectuation of such drastic reductions is elementary—economic destruction of an important mode of transportation. Still the Court refuses to allow the exercise of an inherent equity power to prevent an unconscionably destructive practice which is damaging not only to Arrow, or to barge lines generally, or to water shippers or river ports, or to industries, but to the public welfare itself—all of this by inference. The Court says 'that Congress meant to foreclose a judicial power to interfere with the timing of rate changes * * * out of harmony with the uniformity of rate levels * * *.' That reasoning, in the light of the fact that many of the proposed new rates are less than 40% of existing ones, coupled with the findings of the Commission and the District Court as to the probable result of this drastic action, is, with due deference, entirely insupportable.
II.
15
The Court seems to say that because Congress, by § 15(7), gave the Commission the power in its discretion to suspend rates for a short period, a power which it never previously had, it ipso facto foreclosed the federal courts from exercising a power they had always possessed, i.e., equity jurisdiction to preserve the status quo and prevent irreparable injury. The two powers are of an entirely different character. The suspension power granted the Commission under § 15(7) is primary and is exercised in its discretion while the validity of a proposed rate is under consideration, but it is limited under present law to a period of seven months. No criteria or guidelines are laid down for the Commission, the only prerequisite being the filing of 'a statement in writing of its reasons for such suspension.' Hence the Commission has a broad, general discretion to suspend proposed rates for a limited period pending investigation. The court, on the other hand, can act only in compelling circumstances to prevent an irreparable injury and to maintain the status quo pending the Commission's decision—an equitable power long recognized as existing in the courts. The exercise of these judicial powers is but in aid of and ancillary to the temporary suspension power of the Commission and supports rather than interferes with the latter's jurisdiction, preventing irreparable injury from resulting while the Commission has the matter under consideration. Indeed, this power should be exercised only in the most exigent circumstances, such as in the present case, where the Commission has found a strong likelihood of irreparable injury resulting from effectuation of proposed rates, has in fact exercised the full measure of its suspension power and now finds itself powerless to prevent those rates from going into effect. I submit that neither the language of § 15(7) nor its legislative history supports the removal of judicial power to act in such circumstances.
16
Prior to 1910 the Commission had the power neither to suspend proposed rates nor 'to prevent by direct action excessively low rates,' Skinner & Eddy Corp. v. United States, 249 U.S. 557, 566, 39 S.Ct. 375, 379, 63 L.Ed. 772 (1919), and its earliest suspensions of proposed rate reductions occurred subsequent to 1910. See Suspension of Rates on Packinghouse Products, 21 I.C.C. 68 (1911); Board of Trade of Chicago v. Illinois Central R. Co., 26 I.C.C. 545 (1913). It was not until 1920 that the Commission was given power to exercise direct action and prescribe minimum rates. Transportation Act of 1920, 41 Stat. 484, 49 U.S.C. § 15(2); see United States v. Illinois Central R. Co., 263 U.S. 515, 525, 44 S.Ct. 189, 193, 68 L.Ed. 417 (1924). At the time of the enactment of § 15(7), as the legislative history shows, there was no evident concern with rate decreases and protection of competing carriers, but attention was focused on the protection of shippers from excessive rate increases with which the Commission had ample power to deal, though it could not at that time suspend rates.2 This omission was noted on the floor of the Senate on the day before the vote was taken on § 15(7) when Senator Heyburn observed that 'Little or no consideration seems to have been given to the advisability of including decreases in rates under the amendment.' 45 Cong. Rec. 6792. There is no evidence that complaints as to rate reductions occupied any significant portion of the Commission's docket prior to 1910. Prior to that time the Commission was concerned almost exclusively with shippers' complaints of rate increases. It is hard for me to see, therefore, how it could be said that Congress, when it first enacted the suspension power in 1910, was faced with the problem of the suspension of rate decreases as between competing carriers when there had apparently been very few, if indeed any, such complaints previous to 1910. The Court says that prior to enactment of the suspension power in 1910, 'such courts as entertained jurisdiction' in rate cases 'were reaching diverse results' and producing 'confusion and * * * competitive inequities,' but those cases, as far as can be determined, did not involve unjust and destructively low rates. Therefore, while there were, as the Court points out, '(c)onflicts * * * between competing carriers' prior to 1910, there is no indication that any of these cases involved reductions in rates. Finally, a suspension power similar to the 'judicial power' which the Court says brought 'the whole problem to a head' is now, by statute, exercised by the Commission for a limited period as a matter of primary jurisdiction—a power quite different from that which the District Court was asked to exercise here. A simple grant of jurisdiction to an administrative agency without reference to a long-recognized equity jurisdiction which is not inconsistent therewith is a strange way to dispose of judicial power. See Hewitt-Robins, Inc. v. Eastern Freight-Ways, Inc., 371 U.S. 84, 83 S.Ct. 157, 9 L.Ed.2d 142 (1962). I attribute no such purblindness to Congress.
17
It can hardly be said that the granting of this primary jurisdiction with power to suspend for seven months totally ousted the equity courts of their traditional power to grant injunctive relief to preserve the status quo and prevent irreparable injury while the case is in progress in another forum. The cases do not support this conclusion where the other forum is either a court of law, Erhardt v. Boaro, 113 U.S. 537, 5 S.Ct. 565, 28 L.Ed. 1116 (1885); Louisville & N.R. Co. v. Western Union Telegraph Co., 207 F. 1 (C.A.6th Cir., 1913), or an administrative agency. Trans-Pacific Freight Conf. of Japan v. Federal Maritime Bd., 112 U.S.App.D.C. 290, 295, 302 F.2d 875, 880 (1962); Board of Governors, etc. v. Transamerica Corp., 184 F.2d 311 (C.A.9th Cir., 1950); West India Fruit & Steamship Co. v. Seatrain Lines, 170 F.2d 775 (C.A.2d Cir., 1948); Isbrandtsen v. United States, 81 F.Supp. 544 (D.C.S.D.N.Y.1948). Moreover, whenever Congress wanted to oust the jurisdiction of the courts it not only knew how to do it but did so in no uncertain terms. See, e.g., Internal Revenue Code of 1954, § 7421; Norris-LaGuardia Act, 29 U.S.C. §§ 101—115. In addition to these considerations, I submit that the Interstate Commerce Act itself supports the conclusion that the courts retained their traditional jurisdiction. Section 22(1) of the Act, 24 Stat. 387, 49 U.S.C. § 22(1), provides that no provision of the Act shall 'in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies.' The 'remedies now existing at common law' include such equitable remedies as injunctions. Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638, 20 S.Ct. 824, 44 L.Ed. 921 (1900).
18
Finally, in 1940, the Congress adopted the National Transportation Policy (54 Stat. 899, 49 U.S.C. preceding § 1) in which it enjoined the Commission to 'foster sound economic conditions in transportation and among the several carriers; * * * encourage the establishment and maintenance of reasonable charges for transportation services, without unjust discriminations * * * or unfair or destructive competitive practices; * * * 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 * * *. All of the provisions of (the Interstate Commerce Act) shall be administered and enforced with a view to carrying out the above declaration of policy.'
19
The policy of 'developing, coordinating, and preserving a national transportation system by water, highway, and rail * * * adequate to meet the needs of the commerce of the United States' (emphasis supplied) will be completely thwarted if Arrow and other barge lines on the Tennessee River are forced out of business. It is, indeed, a sad day for our judicial processes when our courts are rendered powerless to prevent this miscarriage of the clear policy of our Government, the frustration of the admitted duties of the Interstate Commerce Commission and the destruction of an entire system of transportation.
20
In short, this case presents a situation peculiarly appropriate for the exercise of the inherent equity jurisdiction of a federal court to supplement the now-exhausted suspension power of the Commission, consistent with the Commission's conclusion that such suspension is in the public interest and consistent with the affirmative mandate of the Congress in the National Transportation Policy.
21
In addition, while it would be inappropriate to discuss the constitutional questions raised as to § 15(7), the opinion of the Court evokes grave doubt about the constitutionality of the statute, as interpreted. See Porter v. Investors' Syndicate, 286 U.S. 461, 470—471, 52 S.Ct. 617, 620, 76 L.Ed. 1226 (1932); Pacific Tel. & Tel. Co. v. Kuykendall, 265 U.S. 196, 201, 204—205, 44 S.Ct. 553, 556, 68 L.Ed. 975 (1924).
22
I dissent.
1
49 U.S.C. § 15(7):
'Whenever there shall be filed with the Commission any schedule stating a new * * * rate * * * the Commission shall have * * * authority, either upon complaint or upon its own initiative without complaint, at once * * * to enter upon a hearing concerning the lawfulness of such rate * * * and pending such hearing and the decision thereon the Commission, upon filing with such schedule and delivering to the carrier or carriers affected thereby a statement in writing of its reasons for such suspension, may from time to time suspend the operation of such schedule and defer the use of such rate * * * but not for a longer period than seven months beyond the time when it would otherwise go into effect; and after full hearing, whether completed before or after the rate * * * goes into effect, the Commission may make such order with reference thereto as would be proper in a proceeding initiated after it had become effective. If the proceeding has not been concluded and an order made within the period of suspension, the proposed change of rate * * * shall go into effect at the end of such period * * *.'
2
The petitioners are a barge line, Arrow Transportation Co., a competitor of the respondent railroads for grain carriage; a municipality, Guntersville, Alabama, served by Arrow; a grain merchant, O. J. Walls, located in that municipality; and a grain consumer, John D. Bagwell Farms & Hatchery, Inc., which receives its grain by truck from Guntersville. The rate reductions which respondents have filed cover the shipment of grain to various points in the Southeastern United States, but apply only to multiple-car shipments from certain Mississippi and Ohio River ports. The Commission, following a complaint by competing barge lines and other parties, and on the basis of a recommendation of its Suspension Board, made a tentative finding that the proposed rates would be 'unjust and unreasonable, in violation of the Interstate Commerce Act,' and would 'constitute unfair and destructive competitive practices in contravention of the National Transportation Policy.' After the full hearing, however, Division 2 of the Commission, on January 21, 1963, concluded that Southern's rates at least were compensatory and reasonable, Grain in Multiple-Car Shipments—River Crossings to the South, I. & S. Docket No. 7656. That decision is now awaiting reconsideration by the full Commission.
The four petitioners have contended throughout this litigation that the application of the proposed new rail rates will irreparably injure their respective economic interests, particularly because they threaten to force Arrow out of business. Petitioners further contend that the proposed rates, being substantially lower than the competitive barge rates in effect at the time of filing, unlawfully discriminate against a competing form of transportation. The reductions, in petitioners' view, will benefit only those users of grain who are equipped to receive very large rail shipments, to the detriment of all receivers off the rail routes, and the smaller rail-side purchasers who lack facilities for receipt and storage of multiple-car shipments. Southern responds that its reductions, at least, were made possible by technological innovations and efficiencies culminating in the inauguration of new aluminum freight cars designed especially for carriage of large grain shipments. Southern also maintains that the proposed rates are both nondiscriminatory and compensatory, and have been necessitated by vigorous competition against the railroads by unregulated motor carriers on certain routes which the barge lines do not serve.
In the course of the hearings before the Commission, the proposed rates were supported by representatives of the United States Department of Agriculture, the Southern Governors' Conference, the Southeastern Association of Railroad and Utilities Commissioners, and by various receivers and users of grain throughout the Southeast. On the other hand, the rates were protested by certain barge lines besides Arrow, several receivers of grain by barge, the Tennessee Valley Authority, flour milling interests and certain boards of trade outside the Southeast.
3
The District Court concluded in its memorandum following an oral argument: '* * * I have convinced myself that should this Court have jurisdiction of this matter, it should consider all of these matters most carefully and deliberately before denying injunctive relief to plaintiffs. At this time I am of the opinion that the ends of justice would be best served by granting temporary injunctive relief for a limited period of time, not to urge the Commission to greater speed in determining this issue but to be sure that the parties conclude the hearings as speedily as possible. However, lacking jurisdiction, I find myself powerless to grant the relief sought; therefore, at this time it is the judgment of the Court that the motion for preliminary injunction be, and the same is hereby denied. At the same time I am denying defendants' motion to dismiss this case.' The District Court's formal order, entered the following day, denied both the petitioners' motion for a preliminary injunction and the respondents' motion to dismiss.
4
One judge of the Court of Appeals granted petitioners' motion for a temporary restraining order on August 3, 1962, the day on which the order of the District Court issued. On August 8, however, a panel of the Court of Appeals denied petitioners' application for a restraining order pending decision of the appeal. Thereafter, but before oral argument in the Court of Appeals, Mr. Justice Black issued an order extending the Court of Appeals' restraining order pending the presentation and disposition by this Court of a petition for certiorari. The Court of Appeals rendered its opinion on September 7, 1962, and we granted certiorari on October 15. We invited the Solicitor General to file a brief expressing the views of the United States, and he filed a brief for the United States as amicus curiae. Southern was the only railroad which opposed certiorari or argued the merits of the case before this Court.
5
36 Stat. 552.
6
The cases decided between 1906 and 1910 disclose the judicial uncertainty about the availability of any equitable relief. Compare, e.g., Northern Pac. R. Co. v. Pacific Coast Lumber Mfrs.' Ass'n, 165 F. 1 (C.A.9th Cir., 1908); Jewett Bros. & Jewett v. Chicago, M. & St. P.R. Co., 156 F. 160 (C.C.D.S.D.1907) with, e.g., Atlantic Coast Line R. Co. v. Macon Grocery Co., 166 F. 206 (C.A.5th Cir., 1909), aff'd on other grounds, 215 U.S. 501, 30 S.Ct. 184, 54 L.Ed. 300; and Wickwire Steel Co. v. New York Cent. & H.R.R. Co., 181 F. 316 (C.A.2d Cir., 1910). See for a contemporary view that courts lacked such injunctive powers over proposed rates, 1 Drinker, The Interstate Commerce Act (1909), § 243.
7
See In re Advances in Rates—Western Case, 20 I.C.C. 307, 313—314; Dixon, The Mann-Elkins Act, 24 Quarterly Journal of Economics, August 1910, p. 593, at 603; Crook, The Interstate Commerce Commission, 194 North American Review, December 1911, p. 858, at 867.
8
The Administration originally recommended a period of 60 days; congressional proponents of suspension urged in response an unlimited suspension power, see 45 Cong.Rec. 6409. The Commission itself originally proposed a period of 120 days; the Senate Committee which reported on the Senate version of the bill recommended 90 days, S.Rep.No.355, 61st Cong., 2d Sess. 9. For other stages of the legislative give-and-take which finally produced a period of 10 months as the maximum suspension term, see 45 Cong.Rec. 3373—3374, 3472, 4109—4110, 6500—6501, 6503, 6509, 6510—6511, 6783—6784, 6787—6788, 6900—6901, 6915—6921, 8239, 8473.
9
36 Stat. 552.
10
41 Stat. 486—487. Section 418 of the Esch-Cummins Act also added an express provision that if the hearing had not been concluded at the expiration of the 30-day extension period, 'the proposed change of rate, fare, charge, classification, regulation, or practice shall go into effect at the end of such period * * *.'
11
See, e.g., Statement of Commissioner Clark, Hearings on H.R.4378 before House Committee on Interstate and Foreign Commerce, 66th Cong., 1st Sess. 91, 2944; H.R.Rep.No.456, 66th Cong., 1st Sess. 20—21. President Taft's 1910 message expressly adverted to the possibility that the hearings might outlast the suspension period. 45 Cong.Rec. 380.
A recent summary indicates that only about three-fifths of the investigation and suspension proceedings are completed within the seven-month period, but only four percent of such cases require more than a year. Remarks of Commissioner Charles A. Webb, in Expedition of Commission Proceedings, A Panel Discussion, 27 I.C.C.Prac.J. 15, 16 (1959). Professor Sharfman is authority that at the time he wrote it was invariably the practice of carriers voluntarily to extend the period at least with respect to proposed increases. 1 Sharfman, The Interstate Commerce Commission (1931), 203.
12
Section 418 of the Transportation Act of 1920, 41 Stat. 484, 486—487, amending § 15 of the Interstate Commerce Act.
13
44 Stat. 1447—1448. See S.Rep.No.1508, 69th Cong., 2d Sess. 4. Since the enactment of § 15(7), similar suspension provisions have been included in numerous other regulatory statutes. See 49 U.S.C. §§ 316(g), 318(c) (Motor Carrier Act); 49 U.S.C. § 907(g), (i) (Water Carrier Act); 49 U.S.C. § 1006(e) (Freight Forwarders Act); 47 U.S.C. § 204 (Federal Communications Act); 16 U.S.C. § 824d(e) (Federal Power Act); 15 U.S.C. § 717c(e) (Natural Gas Act); and 49 U.S.C. § 1482(g) (Federal Aviation Act). The terms of these later statutes are virtually identical to those of § 15(7), although the length of the prescribed suspension period varies. However, it should be apparent that nothing we hold with respect to § 15(7) necessarily governs the construction and application of these other suspension provisions.
14
Great Northern held only that the District Court lacked power to enjoin intrastate rates which had been duly prescribed by a state regulatory agency and which the railroads were protesting before the Interstate Commerce Commission as discriminatory against interstate commerce. Although, unlike this case, the situation there involved a danger of direct conflict between federal and state regulation, see 281 U.S., at 426—430, 50 S.Ct. at 395—396, the reasoning there does suggest the Court was of the view that even in the absence of such a direct conflict, the federal courts might not enjoin proposed rates when the Commission lacked either the inclination or the power to do so.
15
E.g., M. C. Kiser Co. v. Central of Ga. R. Co., 236 F. 573 (D.C.S.D.Ga.), aff'd, 239 F. 718 (C.A.5th Cir.); Freeport Sulphur Co v. United States, 199 F.Supp. 913, 916 (D.C.S.D.N.Y.); Luckenbach S.S. Co. v. United States, 179 F.Supp. 605, 609—610 (D.C.D.Del.), vacated in part as moot, 364 U.S. 280, 80 S.Ct. 1611, 4 L.Ed.2d 1719; cf. Manhattan Transit Co. v. United States, 24 F.Supp. 174, 177 (D.C.D.Mass.). See also Director General of Railroads v. Viscose Co., 254 U.S. 498, 502, 41 S.Ct. 151, 153, 65 L.Ed. 372, recognizing on similar grounds that under the Transportation Act of 1920 the District Courts lacked power to enjoin the action of the Director General of Railroads in instituting changes of commodity classifications and similar terms: '(T)here was ample and specific provision made therein for dealing with the situation through the Commission—for suspending the supplement or rule * * *.' 254 U.S., at 502, 41 S.Ct., at 153. Cantlay & Tanzola, Inc. v. United States, 115 F.Supp. 72 (D.C.S.D.Cal.), upon which petitioners rely, is not contrary. There the District Court found no need to enjoin or suspend the proposed rates because, pendente lite, the carriers had voluntarily restored the previous schedule. But the court said: 'The Congressional intent (underlying § 15(7)) plainly is that the courts not interfere to suspend carrier-made rates 'prior to an appropriate finding by the Interstate Commerce Commission'.' 115 F.Supp., at 83.
16
See, e.g., Professor Sharfman's view that '(u)pon failure of the Commission to issue an order within this prescribed period, the proposed changes in rates were automatically to become effective, although the Commission might continue its investigation and bring it to decision.' 1 Sharfman, The Interstate Commerce Commission (1931), 202. A contemporary commentator's view of the operation of the new statute was as follows: 'In other words, the Commission may suspend rates for ten months beyond their effective date but no longer, and if the investigation is not then complete, the rates automatically go into effect.' Dixon, The Mann-Elkins Act, 24 Quarterly Journal of Economics, August 1910, p. 593, at 604. For a current view, see Brooks and Daily, The Commission's Power of Suspension and Judicial Review Thereof, 27 I.C.C.Prac.J. 589, 599 (1960).
17
See also Board of Railroad Comm'rs v. Great Northern R. Co., supra, 281 U.S. at 429—430, 50 S.Ct. at 396; Director General of Railroads v. Viscose Co., 254 U.S. 498, 504, 41 S.Ct. 151, 154, 65 L.Ed. 372; In re Advances in Rates—Western Case, 20 I.C.C. 307, 313—314; Brooks and Daily, supra, note 16, at 605.
18
See Commissioner Eastman's description of the evolution of this competition, Petroleum Products from New Orleans, La., Group, 194 I.C.C. 31, 44.
19
See Texas & Pacific R. Co. v. Abilene Cotton Oil Co., supra, 204 U.S. at 440—441, 27 S.Ct. at 355; Director General of Railroads v. Viscose Co., 254 U.S. 498, 41 S.Ct. 151, 65 L.Ed. 372; Baltimore & O.R. Co. v. United States of America ex rel. Pitcairn Coal Co., 215 U.S. 481, 493—495, 30 S.Ct. 164, 169, 54 L.Ed. 292. It has been pointed out that 'the agencies, through their power to suspend or deny suspension, often make final determinations of what the rates shall be during the suspension period * * *.' 1 Davis, Administrative Law (1958), 442.
20
28 U.S.C. § 2325 requires the convening of a three-judge District Court pursuant to 28 U.S.C. § 2284 to enjoin even temporarily the operation or execution 'of any order of the Interstate Commerce Commission * * *.'
The Court of Appeals also suggested—though the suggestion has not been challenged before this Court—that § 16 of the Clavton Act, 15 U.S.C. § 26, might independently bar the injunctive relief sought here. 308 F.2d, at 185. That section restricts to the United States, in suits for violations of the antitrust laws, the right to seek injunctive relief against any common carrier 'in respect of any matter subject to the regulation, supervision, or other jurisdiction of the Interstate Commerce Commission.' Its applicability would, of course, depend upon whether or not the petitioners' action rests upon claimed violations of the antitrust laws. Cf. Central Transfer Co. v. Terminal Railroad Ass'n, 288 U.S. 469, 53 S.Ct. 444, 77 L.Ed. 899.
21
See, E.g., Carlsen v. United States, 107 F.Supp. 398 (D.C.S.D.N.Y.); Bison S.S. Corp. v. United States, 182 F.Supp. 63 (D.C.N.D.Ohio); Luckenbach S.S. Co. v. United States, 179 F.Supp. 605 (D.C.D.Del.). But cf. Amarillo-Borger Express, Inc. v. United States, 138 F.Supp. 411 (D.C.N.D.Tex.), vacated as moot, 352 U.S. 1028, 77 S.Ct. 594, 1 L.Ed.2d 598; Seatrain Lines, Inc. v. United States, 168 F.Supp. 819 (D.C.S.D.N.Y.). Compare generally Goodman, The History and Scope of Federal Power to Delay Changes in Transportation Rates, 27 I.C.C.Prac.J. 245 (1959), with Brooks and Daily, The Commission's Power of Suspension and Judicial Review Thereof, id., 589 (1960).
22
Thus we do not reflect in any way upon decisions which have recognized a limited judicial power to preserve the court's jurisdiction or maintain the status quo by injunction pending review of an agency's action through the prescribed statutory channels. Cf., e.g., Scripps-Howard Radio, Inc. v. Federal Communications Comm'n, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229; West India Fruit & S.S. Co. v. Seatrain Lines, Inc., 2 Cir., 170 F.2d 775; Board of Governors, etc., v. Transamerica Corp., 9 Cir., 184 F.2d 311. Such power has been deemed merely incidental to the courts' jurisdiction to review final agency action, and has never been recognized in derogation of such a clear congressional purpose to oust judicial power as that manifested in the Interstate Commerce Act.
It has also been suggested that a judicial power of this sort may have survived by reason of the 'saving clause' of the statute, 49 U.S.C. § 22(1). That conclusion would, of course, follow only if prior to the adoption of the Act there had been a clearly recognized equitable power to enjoin proposed rate changes. This, as we have already indicated, was not the case. Moreover, we have generally rejected such constructions of this and similar saving clauses, see, e.g., Texas & Pacific R. Co. v. Abilene Cotton Oil Co., supra; T.I.M.E., Inc. v. United States, 359 U.S. 464, 472 474, 79 S.Ct. 904, 909—910, 3 L.Ed.2d 952.
23
See North Carolina Natural Gas Corp. v. United States, 200 F.Supp. 745, 750 (D.C.D.Del.). The Commission's regulations and rules contemplate only an informal hearing before the Suspension Board upon a protest, of which no transcript is to be made, although reconsideration may be requested. See 49 CFR §§ 1.42, 1.200; see also 1 Davis, Administrative Law (1958), 441: 'Although a hearing cannot be held on the question whether to suspend pending hearing, in many cases hurried conferences are held, which provide substantial safeguard against arbitrary action.' The practice of the Civil Aeronautics Board under a virtually identical suspension statute appears to be more formal, 14 CFR § 302.505; see Air Freight Forwarder Assn., 8 C.A.B. 469, 474.
24
We suggest no lack of congressional power to grant either administrative or judicial authority to extend a suspension period prior to completion of the administrative proceeding. Under other statutes Congress has evinced a clear intention to vest the courts with such power. The National Labor Relations Board, for example, has expressly been authorized to apply to the courts for 'appropriate temporary relief or restraining order' pending the Board's decision of an unfair labor practice case. 29 U.S.C. § 160(j). Cf. Trans-Pacific Freight Conference v. Federal Maritime Board, 112 U.S.App.D.C. 290, 295, 302 F.2d 875, 880.
25
54 Stat. 899, which has been inserted before Part I of the Interstate Commerce Act.
26
Schaffer Transportation Co. v. United States, 355 U.S. 83, 87—88, 78 S.Ct. 173, 176, 2 L.Ed.2d 117; Arrow Transportation Co. v. United States, 176 F.Supp. 411, 416 (D.C.N.D.Ala.), aff'd per curiam sub nom. State Corporation Comm'n v. Arrow Transportation Co., 361 U.S. 353, 80 S.Ct. 406, 4 L.Ed.2d 362.
1
We note that on January 21, 1963, while the case was pending here, the Division of the Commission which had previously considered the case concluded that some of the rates proposed by Southern were lawful but still found most (88%) of the entire rate package of all of the railroads unlawful. Even this finding, however, is not final, for it is subject to and is in fact pending reconsideration before the full Commission.
2
In 1910 Congress enacted § 4(2) of the Act, the provisions of which evidence an awareness that railroad rate reductions could be destructive competitive practices, see Skinner & Eddy Corp. v. United States, 249 U.S. 557, 566—567, 39 S.Ct. 375, 378—379, 63 L.Ed. 772 (1919), but § 4(2) clearly does not prohibit such practices. Not until the Transportation Act of 1920, as we have noted, was the Commission given the power to prescribe minimum rates.
| 78
|
372 U.S. 682
83 S.Ct. 956
10 L.Ed.2d 67
INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, et al., Petitioners,v.CENTRAL AIRLINES, INC.
No. 61.
Argued Feb. 19 and 20, 1963.
Decided April 15, 1963.
Rehearing Denied May 27, 1963.
See 373 U.S. 947, 83 S.Ct. 1533.
Charles J. Morris, Dallas, Tex., and Bernard Dunau, Washington, D.C., for petitioners.
Luther Hudson, Fort Worth, for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
The respondent airline discharged the six individual petitioners in April 1958 after they refused to attend disciplinary hearings without having a union representative present. The petitioning union and the employees initiated grievances over these discharges, which were not settled between the parties and which were presented to the system board of adjustment, established by agreement between the union and the airline according to the Railway Labor Act, 44 Stat. 577, as amended, 45 U.S.C. §§ 151—188. The four-man board of adjustment deadlocked, a neutral referee was appointed by the National Mediation Board, and an award was then rendered ordering the individual petitioners reinstated without loss of seniority and with back pay. Central refused to comply and petitioners filed this suit in the United States District Court for the Northern District of Texas for enforcement of the award.
2
The complaint recited the certification of the union as the collective bargaining agent by the National Mediation Board pursuant to an election held under the Railway Labor Act, disclosed the execution of a collective bargaining contract with the company, and attached as an exhibit a copy of another contract with Central establishing a system board of adjustment. This contract stated, 'In compliance with Section 204, Title II of the Railway Labor Act, as amended, there is hereby established a system board of adjustment for the purpose of adjusting and deciding disputes * * *.' Under the express terms of the contract, 'decisions of the Board in all cases properly referable to it shall be final and binding upon the parties' and, when a neutral referee is sitting with the board, 'a majority vote of the Board shall be final, binding, and conclusive between the Company and the Association and anyone they may represent having an interest in the dispute.' The complaint set out in some detail the action and decision of the system board and a copy of its award was attached. Alleging that Central had refused to comply with the terms of the award and that the suit 'arises under the laws of the United States, specifically under the Railway Labor Act as set out more particularly hereinabove,' petitioners requested the 'enforcement of the aforesaid System Board Award * * * and that judgment to entered ordering defendant to comply with said award * * *.'
3
Although the gist of the complaint was that Central was obliged to comply with the award by reason of the Railway Labor Act, the District Court granted Central's motion to dismiss for lack of jurisdiction, concluding that there was no diversity of citizenship (which was not disputed) and that the case did not arise under the laws of the United States as required by 28 U.S.C. § 1331.1 The Court of Appeals for the Fifth Circuit affirmed on the authority of its previous decision in Metcalf v. National Airlines, 271 F.2d 817, ruling that the complaint did not disclose 'affirmatively a federally-created cause of action' and that 'this suit is nothing more than a state-created action to construe a contract.' 295 F.2d 209. Certiorari was granted to consider the important question of whether a suit to enforce an award of an airline system board of adjustment is a suit arising under the laws of the United States under 28 U.S.C. § 1331 or a suit arising under a law regulating commerce under 28 U.S.C. s 1337.2 369 U.S. 802, 82 S.Ct. 642, 7 L.Ed.2d 549. We have concluded that this question must be answered in the affirmative and that the District Court has jurisdiction to proceed with the suit.
I.
4
In 1936, Congress extended the Railway Labor Act to cover the then small-but-growing air transportation industry. 49 Stat. 1189, 45 U.S.C. §§ 181—188. Its general aim was to extend to air carriers and their employees the same benefits and obligations available and applicable in the railroad industry.3 But there was to be a significant variation. The 1936 amendments made applicable to the airlines all of the provisions of the Railway Labor Act, excepting § 3, 45 U.S.C. § 153, dealing with the National Railroad Adjustment Board; but including § 1, 45 U.S.C. § 151, containing definitions; § 2, 45 U.S.C. § 151a, the Act's statement of purposes; §§ 4 and 5, 45 U.S.C. §§ 154—155, relative to the National Mediation Board and its functions; and §§ 7, 8 and 9, 45 U.S.C. §§ 157—159, relating to voluntary arbitration and emergency boards. § 202, 45 U.S.C. § 182. In the place of § 3, Congress provided in § 205, 45 U.S.C. § 185, that the creation of a National Air Transport Board would be postponed until 'in the judgment of the National Mediation Board, it shall be necessary to have a permanent national board of adjustment * * *.' Until the establishment of the national board for the airlines industry, § 204, 45 U.S.C. § 184, required the formation of system, group, or regional boards of adjustment:
5
'It shall be the duty of every carrier and of its employees, acting through their representatives, selected in accordance with the provisions of sections 181—188 of this title, to establish a board of adjustment of jurisdiction not exceeding the jurisdiction which may be lawfully exercised by system, group, or regional boards of adjustment, under the authority of section 153 of this title.'
6
The duty imposed upon the parties to create adjustment boards to settle grievances was more than a causal suggestion to the air industry. The original version of S. 2496, which, as amended, became law, provided for voluntary boards of adjustment as in the case of the railroads and extended the jurisdiction of the National Mediation Board to minor as well as major disputes.4 But upon the suggestion of the National Mediation Board, its jurisdiction was not expanded, and the law as finally passed made compulsory the establishment of the adjustment boards.5 Until and unless the National Mediation Board determined to create a national board, the parties were placed under the statutory duty of establishing and utilizing system, group, or regional boards of adjustment for the purpose of adjusting and deciding disputes arising under existing contracts.
7
The obligation which § 204 fastened upon the carriers and their employees cannot be read in isolation. Its true significance must be drawn from its context as part of the Railway Labor Act which itself draws meaning from its history.6 See Romero v. International Term. Co., 358 U.S. 354, 360, 79 S.Ct. 468, 473, 3 L.Ed.2d 368.
8
Congress has long concerned itself7 with minimizing interruptions in the Nation's transportation services by strikes and labor disputes and has made successive attempts to establish effective machinery to resolve disputes not only as to wages, hours, and working conditions, the so-called major disputes connected with a negotiation of contracts or alterations in them, but also as to the interpretation and application of existing contracts, the minor disputes of the type involved in this case. In 1920,8 the latter category was dealt with by providing that the parties 'may' create boards of adjustment to handle these grievances which, however, if unresolved by these boards were to be referred to the Railway Labor Board whose decisions were not legally enforceable.9 The results were highly unsatisfactory,10 and in 1926 Congress required that 'Boards of adjustment shall be created by agreement.'11 The boards were to be composed of an equal number of employee and employer representatives and their decisions were to 'be final and binding on both parties to the dispute; and it shall be the duty of both to abide by such decisions.'12
9
In spite of the mandate of the 1926 Act, creation of adjustment boards did not automatically follow. Furthermore, there was no provision in the Act for breaking deadlocks of the board, which were frequent and which resulted in a myriad of minor disputes going unresolved. As a result, see Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 725—726, 65 S.Ct. 1282, 1291, 89 L.Ed. 1886, in 1934 the Act was amended to create the National Railroad Adjustment Board, the divisions of which were to hear disputes referred by either party and 'growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.' § 3, 45 U.S.C. § 153, First (i). In the event of deadlocks in a division, the National Mediation Board was required to name a neutral referee to sit with the appropriate division of the Board to determine the case. § 3, First (l). It was provided in § 3, First (m) that 'the awards of the several divisions of the Adjustment Board shall be stated in writing * * * and the awards shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award. * * *' Section 3, First (p) provided for a suit in the United States District Courts to enforce certain awards.
10
While thus establishing a National Adjustment Board with power to make final awards with the help of neutral persons where necessary, Congress also provided in § 3, Second for voluntary system boards:
11
'Nothing in this section shall be construed to prevent any individual carrier, system, or group of carriers and any class or classes of its or their employees, all acting through their representatives, selected in accordance with the provisions of this chapter, from mutually agreeing to the establishment of system, group, or regional boards of adjustment for the purpose of adjusting and deciding disputes of the character specified in this section. In the event that either party to such a system, group, or regional board of adjustment is dissatisfied with such arrangement, it may upon ninety days' notice to the other party elect to come under the jurisdiction of the Adjustment Board.' 45 U.S.C.A. § 153 Second.
12
This machinery was designed to serve the stated purposes of the Act which were, among others: 'To avoid any interruption to commerce or to the operation of any carrier engaged therein' and 'to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.' § 2, 45 U.S.C. § 151a. Implementing such goals, § 2 First, 45 U.S.C. § 152 First, made it 'the duty of all carriers, their officers, agents, and employees to exert every reasonable effort to make and maintain agreements * * * and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce.' The statute directed that minor disputes be handled on the property in the usual manner, but failing adjustment either party could take the matter to the adjustment board, which was to hear and decide it. This provision is applicable both to rail (§ 3, Second) and air (§ 204) carriers.
II.
13
In view of the clearly stated purposes of the Act and of its history, reflecting as it does a steady congressional intent to move toward a reliable and effective system for the settlement of grievances, we believe Congress intended no hiatus in the statutory scheme when it postponed the establishment of a National Air Transport Adjustment Board and instead provided for compulsory system, group, or regional boards. Although the system boards were expected to be temporary arrangements, we cannot believe that Congress intended an interim period of confusion and chaos or meant to leave the establishment of the Boards to the whim of the parties. Instead, it intended the statutory command to be legally enforceable in the courts and the boards to be organized and operated consistent with the purposes of the Act.
14
We have held other duties imposed upon the carriers and their employees by the Railway Labor Act binding and their breach redressable in the federal courts, such as the duty to bargain, gain, Virginian R. Co. v. System Federation, 300 U.S. 515, 545, 57 S.Ct. 592, 598, 81 L.Ed. 789, and the duty of a certified bargaining representative to represent all members of the craft without discrimination, Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173.13 We take a similar view of the duty to establish adjustment boards under § 204; and as the Court said in Tunstall v. Brotherhood of Locomotive Enginemen, 323 U.S. 210, 213, 65 S.Ct. 235, 237, 89 L.Ed. 187, quoting from Deitrick v. Greaney, 309 U.S. 190, 200—201, 60 S.Ct. 480, 484—485, 84 L.Ed. 694, 'The extent and nature of the legal consequences' of this duty' though left by the statute to judicial determination, are nevertheless to be derived from it and the federal policy which it has adopted.'14
15
It is therefore the statute and the federal law which must determine whether the contractual arrangements made by the parties are sufficient to discharge the mandate of § 204 and are consistent with the Act and its purposes. It is federal law which would determine whether a § 204 contract is valid and enforceable according to its terms. If these contracts are to serve this function under § 204, their validity, interpretation, and enforceability cannot be left to the laws of the many States, for it would be fatal to the goals of the Act if a contractual provision contrary to the federal command were nevertheless enforced under state law or if a contract were struck down even though in furtherance of the federal scheme.15 The needs of the subject matter manifestly call for uniformity.16 Compare Local 174, Teamsters Chauffeurs, etc. of America v. Lucas Flour Co., 369 U.S. 95, 103—104, 82 S.Ct. 571, 577, 7 L.Ed.2d 593.
16
The contracts and the adjustment boards for which they provide are creations of federal law and bound to the statute and its policy. If any provision contained in a § 204 contract is enforceable, it is because of congressional sanction: '(T)he federal statute is the source of the power and authority * * *. The enactment of the federal statute * * * is the governmental action * * * though it takes a private agreement to invoke the federal sanction. * * * A union agreement made pursuant to the Railway Labor Act has, therefore, the imprimatur of the federal law upon it * * *.' Railway Emp. Dept. v. Hanson, 351 U.S. 225, 232, 76 S.Ct. 714, 718, 100 L.Ed. 1112. That is, the § 204 contract, like the Labor Management Relations Act § 301 contract, is a federal court and is therefore governed and enforceable by federal law, in the federal courts. The situation presented here is analogous to that in American Surety Co. v. Schultz, 237 U.S. 159, 35 S.Ct. 525, 59 L.Ed. 892, a suit on a supersedeas bond in an appeal from a District Court to the Court of Appeals. When the judgment against the appellant was affirmed and he failed to pay it, the appellee sued the surety in the District Court. This Court held that there was 'arising under' jurisdiction, since the bond had been given pursuant to the federal statute requiring one when appeals were taken; the construction of the bond and the extent of the surety company's liability under it were said to be federal questions which the federal courts had jurisdiction to determine.17 More specifically, the provisions of a § 204 contract, such as those governing the composition of the adjustment board, the procedures to be employed as to notice and hearing or for breaking deadlocks, or the finality to be accorded board awards, are to be judged against the Act and its purposes and enforced or invalidated in a fashion consistent with the statutory scheme.18 There may be, for example, any number of provisions with regard to the finality of an award that would satisfy the requirements of § 204 but we are quite sure that some such provision is requisite to a § 204 contract and that the federal law would look with favor upon contractual provisions affording some degree of finality to system board awards. Congress has long since abandoned the approach of the completely unenforceable award which was used in the 1920 Act. Elgin, J. & E.R. Co. v. Burley, supra. Adjustment board decisions were expressly made final and binding in the 1926 Act, the National Railroad Adjustment Board awards were made enforceable in the federal courts by the 1934 amendments, and the awards under voluntary arbitration agreements were likewise made expressly enforceable by the statute. There is no reason to believe that in 1936 Congress discarded for an entire industry an element essential to a reliable system of settling disputes under existing contracts or that it contemplated awards by adjustment boards the enforceability of which depended entirely upon the desires of the parties or upon state statutes or court decisions. Quite the contrary, the Act, its history, and its purposes lead us to conclude that when Congress ordered the establishment of system boards to hear and decide airline contract disputes, it 'intended the Board to be and to act as a public agency, not as a private go-between; its awards to have legal effect, not merely that of private advice.' Bower v. Eastern Airlines, 214 F.2d 623, 626 (C.A.3d Cir.); Washington Term Co. v. Boswell, 75 U.S.App.D.C. 1, 10, 124 F.2d 235, 244.
III.
17
The contract of the parties here was executed under § 204 and declares a system board award to be final, binding, and conclusive. The claim stated in the complaint is based upon the award and demands that it be enforced. Whether Central must comply with the award or whether, instead, it is impeachable, are questions controlled by federal law and are to be answered with due regard for the statutory scheme and purpose. To the extent that the contract imposes a duty consistent with the Act to comply with the awards, that duty is a federal requirement. If Central must comply, it is because federal law requires its compliance.
18
In the circumstances we have here, we are not dealing with a suit involving an aspect of federal law which is only collateral or remote or a case where state and federal laws are so blended as to present a serious question of the scope of the arising-under provision of § 1331 or § 1337. See Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577; Gully v. First Nat. Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70; Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194; Romero v. International Term. Co., 358 U.S. 354, 393, n. 4, 79 S.Ct. 468, 491, 3 L.Ed.2d 368 (dissenting and concurring opinion). In our view the complaint in this case, for jurisdictional purposes, presented a substantial claim having its source in and arising under the Railway Labor Act and the District Court therefore has jurisdiction under 28 U.S.C. § 1331 if the jurisdictional amount is satisfied and in any case under § 1337. Romero v. International Term. Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368; Montana-Dakota Utilities Co. v. Northwestern P.S. Co., 341 U.S. 246, 249, 71 S.Ct. 692, 694, 95 L.Ed. 912; American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 586, 60 L.Ed. 987.19
19
Reversed and remanded.
1
28 U.S.C. § 1331:
'(a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000 exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.
'(b) Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff is finally adjudged to be entitled to recover less than the sum or value of $10,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interests and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff.'
2
28 U.S.C. § 1337:
'The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.'
Petitioners' complaint mentioned only § 1331, but reliance has subsequently been placed on § 1337 as well, since there is a dispute concerning the existence of the jurisdictional amount required by § 1331. This is permissible. American Federation of Labor v. Watson, 327 U.S. 582, 589—591, 66 S.Ct. 761, 765, 90 L.Ed. 873.
3
See Hearings on S. 2496 before a Subcommittee of the Senate Committee on Interstate Commerce, 74th Cong., 1st Sess. 26 27.
4
Id., at 1—2.
5
Id., at 11.
6
See generally Virginian R. Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789; Texas & N.O.R. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034; Garrison, The National Railroad Adjustment Board, 46 Yale L.J. 567; Note, 72 Yale L.J. 803.
7
The Court has many times reviewed the history of the railway labor laws. For example, see Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886; Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795; Brotherhood of R. R. Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622; Union Pac. R. Co. v. Price, 360 U.S. 601, 79 S.Ct. 1351, 3 L.Ed.2d 1460; International Ass'n of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141.
8
41 Stat. 469, 474.
9
Pennsylvania Railroad System and Allied Lines Federation v. Pennsylvania R. Co., 267 U.S. 203, 45 S.Ct. 307, 69 L.Ed. 574. See Pennsylvania R. Co. v. United States Railroad Labor Board, 261 U.S. 72, 43 S.Ct. 278, 67 L.Ed. 536.
10
See Brotherhood of Railroad Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622.
11
44 Stat. 578.
12
§ 3, First (e), id., at 579.
13
The absence of a specific statute conferring jurisdiction, in addition to §§ 1331 and 1337, was of no moment in such cases. See Tunstall v. Brotherhood of Locomotive Enginemen, 323 U.S. 210, 213, 65 S.Ct. 235, 237, 89 L.Ed. 187; Leedom v. Kyne, 358 U.S. 184, 189—190, 79 S.Ct. 180, 184, 3 L.Ed.2d 210. These cases, and the one at bar, are unlike such cases as Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61, and General Committee, etc. v. M.K.T.R. Co., 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76, where Congress intended no judicial review and its denial impaired no federal rights.
14
See also Switchmen's of North America Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61; General Committee, etc. v. M.K.T.R. Co., 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76; General Committee, etc. v. Southern Pac. Co., 320 U.S. 338, 64 S.Ct. 142, 88 L.Ed. 85; Brotherhood of Ry. and S. S. Clerks, etc. v. United Transport Service Employees, 320 U.S. 715, 816, 64 S.Ct. 260, 88 L.Ed. 420; Texas & N.O.R. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034; Virginian R. Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789.
15
As the dissenting judge below remarked, 295 F.2d, at 221 222: '* * * Congress in 1936 could not * * * have thought that stability and continuity to interstate air commerce would come from the undulating policies * * * of the legislatures and courts (or both) of 48 states in the enforcement of anything thought so essential to industrial peace as this system of governmentally compelled arbitration.' The dissenting opinion also points out the difficult conflict of laws problems which applying state law would raise, 295 F.2d at 223:
'Not the least of the absurdities is that an airplane flies from state to state. What state is to be the forum? What state was the parent of this creature—the consenual contract containing the agreement to arbitrate? May any or all of the states beneath the route or routes traveled by the airline be resorted to? Is the continuity of essential air traffic to be at the plaintiff's choice of forum? What is to happen when several plaintiffs bring several suits in several states? Is effective federal control of an operational activity deemed so essential to national welfare to be precariously dependent upon the accident of diversity of citizenship?'
16
To be sure, different airlines may use different contracts, and any one may have different agreements for different crafts, but such lack of uniformity represents a minimal burden on commerce. The lack of uniformity created by dividing everything by 50 (or however many States the system spans) would multiply the burden by a substantial factor and aggravate the problem to an intolerable degree.
17
The Schultz case followed a line of authority involving suits on bonds given by federal officers to ensure their faithful performance of their federal duties, in which the Court had held that there was federal jurisdiction for suits by an aggrieved party seeking to collect from the surety. Bock v. Perkins, 139 U.S. 628, 11 S.Ct. 677, 35 L.Ed. 314 (suit for tort of U.S. marshal committed in performance of duty); Sonnentheil v. Christian Moerlein Co., 172 U.S. 401, 19 S.Ct. 233, 43 L.Ed. 492 (same); see Feibelman v. Packard, 109 U.S. 421, 3 S.Ct. 289, 27 L.Ed. 984 (same, removal case); Howard v. United States, 184 U.S. 676, 22 S.Ct. 543, 46 L.Ed. 754 (suit against surety of clerk of court brought ex rel. United States to recover for clerk's appropriation of money paid into federal court). The same rule that federal law applies to federal contracts has been applied, in a choice of substantive law rather than jurisdictional context, in cases involving rights and obligations arising on commercial paper issued by the United States. See, e.g., National Metropolitan Bank v. United States, 323 U.S. 454, 65 S.Ct. 354, 89 L.Ed. 383; Clearfield Trust Co. v. United States, 318 U.S. 363, 366, 63 S.Ct. 573, 574, 87 L.Ed. 838. See also Royal Indem. Co. v. United States, 313 U.S. 289, 296, 61 S.Ct. 995, 997, 85 L.Ed. 1361 (general law rather than local law governs whether Government may collect interest on surety bond given to secure collection of taxes); American Pipe & Steel Corp. v. Firestone Co., 292 F.2d 640, 643—644 (C.A.9th Cir.) (construction of subcontract governed by federal law in suit between prime and sub on government contract); Girard Trust Co. v. United States, 149 F.2d 872 (C.A.3d Cir.) (federal law governs rights of parties in lease where Government is lessee, Tucker Act suit); Woodward v. United States, 167 F.2d 774 (C.A.8th Cir.) (federal law governs interpretation of National Service Life Insurance policy, suit against Government on policy). Although these decisions did not involve federal jurisdiction as such, since jurisdiction was conferred by specific statutes and recourse to the 'arising under' statute was unnecessary, they are suggestive since they hold federal law determinative of the merits of the claim. Also highly suggestive, for the same reason, is this Court's language in Sola Elec. Co. v. Jefferson Elec. Co., 317 U.S. 173, 176, 63 S.Ct. 172, 173, 87 L.Ed. 165, a case involving both federal patent-antitrust policies and conflicting state contract law policies of estoppel:
'(T)he doctrine of that case (Erie) is inapplicable to those areas of judicial decision within which the policy of the law is so dominated by the sweep of federal statutes that legal relations which they affect must be deemed governed by federal law having its source in those statutes, rather than by local law.'
18
Thus in cases involving adjustment board procedures or awards, the federal courts have applied federal substantive law to the determination of the validity of the award and the procedures for securing it, irrespective of whether the case was brought into the federal court system on the basis of diversity. See International Assn. of Machinists A.L.F.—C.I.O. v. Northwest Airlines, 304 F.2d 206 (C.A.8th Cir.); Flight Engineers, etc. v. American Airlines, 303 F.2d 5 (C.A.5th Cir.); Woolley v. Eastern Air Lines, 250 F.2d 86, 90—91 (C.A.5th Cir.); Sigfred v. Pan American World Airways, 230 F.2d 13 (C.A.5th Cir.); Bower Eastern Airlines, 214 F.2d 623, 625—627 (C.A.3d Cir.); Pan American World Airways, Inc., v. Division of Labor Law Enforcement, 203 F.Supp. 324 (N.D.Cal.); Edwards v. Capital Airlines, 84 U.S.App.D.C. 346, 176 F.2d 755; Crusen v. United Air Lines, 141 F.Supp. 347 (D.Colo.), aff'd, per curiam, 239 F.2d 863 (C.A.10th Cir.); Farris v. Alaska Airlines, 113 F.Supp. 907 (W.D.Wash.); American Airlines, Inc. v. Air Line Pilots Ass'n, 91 F.Supp. 629 (E.D.N.Y.); International Union United Automobile Aircraft, etc., Workers v. Delta Air Lines, 83 F.Supp. 63 (N.D.Ga.).
19
See also Brotherhood of R. R. Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622, brought under 28 U.S.C. §§ 1331, 1337. (R. 4, 47.)
| 67
|
372 U.S. 726
83 S.Ct. 1028
10 L.Ed.2d 93
William M. FERGUSON, Attorney General for the State of Kansas, et al., Appellants,v.Frank C. SKRUPA, doing business as Credit Advisors.
No. 111.
Argued March 20, 1963.
Decided April 22, 1963.
William M. Ferguson, Wellington, Kan., for appellants.
Lawrence Weigand, Wichita, Kan., for appellee.
Mr. Justice BLACK delivered the opinion of the Court.
1
In this case, properly here on appeal under 28 U.S.C. § 1253, we are asked to review the judgment of a three-judge District Court enjoining, as being in violation of the Due Process Clause of the Fourteenth Amendment, a Kansas statute making it a misdemeanor for any person to engage 'in the business of debt adjusting' except as an incident to 'the lawful practice of law in this state.'1 The statute defines 'debt adjusting' as 'the making of a contract, express, or implied with a particular debtor whereby the debtor agrees to pay a certain amount of money periodically to the person engaged in the debt adjusting business who shall for a consideration distribute the same among certain specified creditors in accordance with a plan agreed upon.'
2
The complaint, filed by appellee Skrupa doing business as 'Credit Advisors,' alleged that Skrupa was engaged in the business of 'debt adjusting' as defined by the statute, that his business was a 'useful and desirable' one, that his business activities were not 'inherently immoral or dangerous' or in any way contrary to the public welfare, and that therefore the business could not be 'absolutely prohibited' by Kansas. The three-judge court heard evidence by Skrupa tending to show the usefulness and desirability of his business and evidence by the state officials tending to show that 'debt adjusting' lends itself to grave abuses against distressed debtors, particularly in the lower income brackets, and that these abuses are of such gravity that a number of States have strictly regulated 'debt adjusting' or prohibited it altogether.2 The court found that Skrupa's business did fall within the Act's proscription and concluded, one judge dissenting, that the Act was prohibitory, not regulatory, but that even if construed in part as regulatory it was an unreasonable regulation of a 'lawful business,' which the court held amounted to a violation of the Due Process Clause of the Fourteenth Amendment. The court accordingly enjoined enforcement of the statute.3
3
The only case discussed by the court below as support for its invalidation of the statute was Commonwealth v. Stone, 191 Pa.Super. 117, 155 A.2d 453 (1959), in which the Superior Court of Pennsylvania struck down a statute almost identical to the Kansas act involved here. In Stone the Pennsylvania court held that the State could regulate, but could not prohibit, a 'legitimate' business. Finding debt adjusting, called 'budget planning' in the Pennsylvania statute, not to be 'against the public interest' and concluding that it could 'see no justification for such interference' with this business, the Pennsylvania court ruled that State's statute to be unconstitutional. In doing so, the Pennsylvania court relied heavily on Adams v. Tanner, 244 U.S. 590, 37 S.Ct. 662, 61 L.Ed. 1336 (1917), which held that the Due Process Clause forbids a State to prohibit a business which is 'useful' and not 'inherently immoral or dangerous to public welfare.'
4
Both the District Court in the present case and the Pennsylvania court in Stone adopted the philosophy of Adams v. Tanner, and cases like it, that it is the province of courts to draw on their own views as to the morality, legitimacy, and usefulness of a particular business in order to decide whether a statute bears too heavily upon that business and by so doing violates due process. Under the system of government created by our Constitution, it is up to legislatures, not courts, to decide on the wisdom and utility of legislation. There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy. In this manner the Due Process Clause was used, for example, to nullify laws prescribing maximum hours for work in bakeries, Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), outlawing 'yellow dog' contracts, Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441 (1915), setting minimum wages for women, Adkins v. Children's Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785 (1923), and fixing the weight of loaves of bread, Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412, 68 L.Ed. 813 (1924). This intrusion by the judiciary into the realm of legislative value judgments was strongly objected to at the time, particularly by Mr. Justice Holmes and Mr. Justice Brandeis. Dissenting from the Court's invalidating a state statute which regulated the resale price of theatre and other tickets, Mr. Justice Holmes said,
5
'I think the proper course is to recognize that a state Legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.'4
6
And in an earlier case he had emphasized that, 'The criterion of constitutionality is not whether we believe the law to be for the public good.'5
7
The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases—that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely—has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws. As this Court stated in a unanimous opinion in 1941, 'We are not concerned * * * with the wisdom, need, or appropriateness of the legislation.'6 Legislative bodies have broad scope to experiment with economic problems, and this Court does not sit to 'subject the state to an intolerable supervision hostile to the basic principles of our government and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to secure.'7 It is now settled that States 'have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law.'8
8
In the face of our abandonment of the use of the 'vague contours'9 of the Due Process Clause to nullify laws which a majority of the Court believed to be economically unwise, reliance on Adams v. Tanner is as mistaken as would be adherence to Adkins v. Children's Hospital, overruled by West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937). Not only has the philosophy of Adams been abandoned, but also this Court almost 15 years ago expressly pointed to another opinion of this Court as having 'clearly undermined' Adams.10 We conclude that the Kansas Legislature was free to decide for itself that legislation was needed to deal with the business of debt adjusting. Unquestionably, there are arguments showing that the business of debt adjusting has social utility, but such arguments are properly addressed to the legislature, not to us. We refuse to sit as a 'superlegislature to weigh the wisdom of legislation,'11 and we emphatically refuse to go back to the time when courts used the Due Process Clause 'to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.'12 Nor are we able or willing to draw lines by calling a law 'prohibitory' or 'regulatory.' Whether the legislature takes for its textbook Adam Smith, Herbert Spencer, Lord Keynes, or some other is no concern of ours.13 The Kansas debt adjusting statute may be wise or unwise. But relief, if any be needed, lies not with us but with the body constituted to pass laws for the State of Kansas.14
9
Nor is the statute's exception of lawyers a denial of equal protection of the laws to nonlawyers. Statutes create many classifications which do not deny equal protection; it is only 'invidious discrimination' which offends the Constitution.15 The business of debt adjusting gives rise to a relationship of trust in which the debt adjuster will, in a situation of insolvency, be marshalling assets in the manner of a proceeding in bankruptcy. The debt adjuster's client may need advice as to the legality of the various claims against him remedies existing under state laws governing debtor-creditor relationships, or provisions of the Bankruptcy Act—advice which a nonlawyer cannot lawfully give him. If the State of Kansas wants to limit debt adjusting to lawyers,16 the Equal Protection Clause does not forbid it. We also find no merit in the contention that the Fourteenth Amendment is violated by the failure of the Kansas statute's title to be as specific as appellee thinks it ought to be under the Kansas Constitution.
10
Reversed.
11
Mr. Justice HARLAN concurs in the judgment on the ground that this state measure bears a rational relation to a constitutionally permissible objective. See Williamson v. Lee Optical Co., 348 U.S. 483, 491, 75 S.Ct. 461, 466, 99 L.Ed. 563.
1
Kan.Gen.Stat.(Supp.1961) § 21—2464.
2
Twelve other States have outlawed the business of debt adjusting. Fla.Stat.Ann. (1962) §§ 559.10—559.13; Ga.Code Ann. (Supp.1961) §§ 84—3601 to 84—3603; Me.Rev.Stat.Ann. (Supp.1961) c. 137, §§ 51—53; Mass.Gen.Laws Ann. (1958) c. 221, § 46C; N.J.Stat.Ann. (Supp.1962) 2A:-99A—1 to 2A:99A—4; N.Y.Penal Law (Supp.1962) §§ 410—412; Ohio Rev.Code Ann. (1962 Supp.) §§ 4710.01 4710.99; Okl.Stat.Ann. (Supp.1962) Tit. 24, §§ 15—18; Pa.Stat.Ann. (Supp.1961) Tit. 18, § 4899; Va.Code Ann. (1958) § 54—44.1; W.Va.Code Ann. (1961) § 6112(4); Wyo.Stat.Ann. (1957) §§ 33—190 to 33—192. Seven other States regulate debt adjusting. Cal.Fin.Code Ann. (1955 and Supp. 1962) §§ 12200—12331; Ill.Stat.Ann. (Supp.1962) c. 16 1/2, §§ 251—272; Mich.Stat.Ann. (Supp.1961) §§ 23.630(1)—23.630(18); Minn.Stat.Ann. (1947 and 1962 Supp.) §§ 332.04—332.11; Ore.Rev.Stat. (1961) §§ 697.610—697.992; R.I.Gen. Laws (Supp.1962) §§ 5—42—1 to 5—42—9; Wis.Stat.Ann. (1957) § 218.02. The courts of New Jersey have upheld a New Jersey statute like the Kansas statute here in question. American Budget Corp. v. Furman, 67 N.J.Super. 134, 170 A.2d 63, aff'd per curiam, 36 N.J. 129, 175 A.2d 622 (1961).
3
Skrupa v. Sanborn, 210 F.Supp. 200 (D.C.D.Kan.1961).
4
Tyson & Brother, etc. v. Banton, 273 U.S. 418, 445, 446, 47 S.Ct. 426, 433, 434, 71 L.Ed. 718 (1927) (dissenting opinion). Mr. Justice Brandeis joined in this dissent, and Mr. Justice Stone dissented in an opinion joined by Mr. Justice Holmes and Mr. Justice Brandeis. Mr. Justice Sanford dissented separately.
5
Adkins v. Children's Hospital, 261 U.S. 525, 567, 570, 43 S.Ct. 394, 406, 67 L.Ed. 785 (1923) (dissenting opinion). Chief Justice Taft, joined by Mr. Justice Sanford, also dissented. Mr. Justice Brandeis took no part.
6
Olsen v. Nebraska ex rel. Western Reference & Bond Assn., 313 U.S. 236, 246, 61 S.Ct. 862, 865, 85 L.Ed. 1305 (1941) (upholding a Nebraska statute limiting the amount of the fee which could be charged by private employment agencies).
7
Sproles v. Binford, 286 U.S. 374, 388, 52 S.Ct. 581, 585, 76 L.Ed. 1167 (1932). And Chief Justice Hughes, for a unanimous Court, added, 'When the subject lies within the police power of the state, debatable questions as to reasonableness are not for the courts but for the Legislature, which is entitled to form its own judgment, and its action within its range of discretion cannot be set aside because compliance is burdensome.' Id., at 388—389, 52 S.Ct. at 585.
8
Lincoln Federal Labor Union, etc. v. Northwestern Iron & Metal Co., 335 U.S. 525, 536, 69 S.Ct. 251, 257, 93 L.Ed. 212 (1949).
Mr. Justice Holmes even went so far as to say that 'subject to compensation when compensation is due, the Legislature may forbid or restrict any business when it has a sufficient force of public opinion behind it.' Tyson & Brother v. Banton, 273 U.S. 418, 445, 446, 47 S.Ct. 426, 434, 71 L.Ed. 718 (1927) (dissenting opinion).
9
See Adkins v. Children's Hospital, 261 U.S. 525, 567, 568, 43 S.Ct. 394, 405, 67 L.Ed. 785 (1923) (Holmes, J., dissenting).
10
Lincoln Federal Labor Union, etc. v. Northwestern Iron & Metal Co., 335 U.S. 525, 535, 69 S.Ct. 251, 256, 93 L.Ed. 212 (1949), referring to Olsen v. Nebraska ex rel. Western Reference & Bond Assn., 313 U.S. 236, 61 S.Ct 862, 85 L.Ed. 1305 (1941). Ten years later, in Breard v. Alexandria, 341 U.S. 622, 631—632, 71 S.Ct. 920, 927, 95 L.Ed. 1233 (1951), this Court again commented on the infirmity of Adams.
11
Day-Brite Lighting, Inc., v. Missouri, 342 U.S. 421, 423, 72 S.Ct. 405, 407, 96 L.Ed. 469 (1952).
12
Williamson v. Lee Optical Co., 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955).
13
'The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics.' Lochner v. New York, 198 U.S. 45, 74, 75, 25 S.Ct. 539, 546, 49 L.Ed. 937 (1905) (Holmes, J., dissenting).
14
See Daniel v. Family Security Life Ins. Co., 336 U.S. 220, 224, 69 S.Ct. 550, 552, 93 L.Ed. 632 (1949); Secretary of Agriculture v. Central Roig Ref. Co., 338 U.S. 604, 618, 70 S.Ct. 403, 410, 94 L.Ed. 381 (1950).
15
See Williamson v. Lee Optical Co., 348 U.S. 483, 488—489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78—79, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911).
16
Massachusetts and Virginia prohibit debt pooling by laymen by declaring it to constitute the practice of law. Mass.Gen.Laws Ann. (1958) c. 221, § 46C; Va. Code Ann. (1958) § 54 44.1. The Massachusetts statute was upheld in Home Budget Service, Inc., v. Boston Bar Assn., 335 Mass. 228, 139 N.E.2d 387 (1957).
| 78
|
372 U.S. 744
83 S.Ct. 1038
10 L.Ed.2d 108
INTERSTATE COMMERCE COMMISSION, Appellant,v.The NEW YORK, NEW HAVEN AND HARTFORD RAILROAD CO. et al. SEA-LAND SERVICE, INC., Appellant, v. The NEW YORK, NEW HAVEN AND HARTFORD RAILROAD CO. et al. SEATRAIN LINES, INC., Appellant, v. The NEW YORK, NEW HAVEN AND HARTFORD RAILROAD CO. et al. UNITED STATES, Appellant, v. The NEW YORK, NEW HAVEN AND HARTFORD RAILROAD CO. et al.
Nos. 108, 109, 110 and 125.
Argued Feb. 28, 1963.
Decided April 22, 1963.
[Syllabus from pages 744-745 intentionally omitted]
Robert W. Ginnane, Warren Price, Jr., and Ralph S. Spritzer, Washington, D.C., for appellants.
Carl Helmetag, Jr., Philadelphia, Pa., for appellees.
[Amicus Curiae intentionally omitted]
Mr. Justice HARLAN delivered the opinion of the Court.
1
This case, involving four consolidated appeals from a three-judge District Court judgment setting aside an order of the Interstate Commerce Commission to the extent that it rejected certain proposed railroad rate decreases, brings before us important questions relating to the role of the Commission in its task of overseeing competition among different modes of transportation. The case is the first in which this Court has considered the interpretation and application of § 15a(3) of the Interstate Commerce Act, added by Congress in the Transportation Act of 1958.1
I.
2
The two corporate appellants here, SeaLand Service, Inc. (formerly Pan-Atlantic Steamship Corporation), and Seatrain Lines, Inc., are common carriers by water engaged in the Atlantic-Gulf coastwise trade; they are the only two companies now performing this service. Sea-Land, which had operated as a 'break-bulk'2 carrier for many years, in 1957 suspended that service and converted four ships into crane-equipped trailerships, each capable of holding 226 demountable truck trailers. With these ships, freight could be moved by highway trailers to the port of origin, the trailers lifted onto the ships, and the process reversed at the port of destination. As a result, Sea-Land was able to provide a motor-water-motor service which afforded door-to-door delivery of goods from and to all shippers and consignees, even if not situated on a railroad siding, in containers that would not have to be opened in transit. Traditionally water rates, including water-rail and water-motor rates, have been lower than the corresponding all-rail rates, and when Sea-Land inaugurated its new trailership service in 1957, it published reduced rates which were generally 5% to 7 1/2% lower than the corresponding allrail boxcar rates. Some 700 of these reduced rates were placed under investigation by the Commission.
3
In Seatrain's service, freight is transported to the company's dock in railroad cars, the cars and their contents are then lifted onto Seatrain's vessels, and at destination the cars are unloaded and delivered by rail to the consignee. This rail-water-rail service is similar to railroad boxcar service, in that it permits carriage from shipper to consignee without breaking bulk when both shipper and consignee are located on railroad sidings.
4
Railroad 'piggy-back,' or trailer-on-flatcar (TOFC), service is like that provided by Sea-Land. A motor carrier trailer is hauled by road to a railhead, loaded onto a flatcar, and demounted at destination for delivery by motor carrier to the consignee.
5
Before 1957, railroad TOFC rates were generally higher than all-rail boxcar, water, and land-water rates. But in 1957, primarily in answer to the new improved service and lower rates offered by Sea-Land, the appellee railroads proposed to establish, on an experimental basis, reduced rates on 66 commodity movements between certain eastern points on the one hand and Fort Worth and Dallas, Texas, on the other,3 These rates, which were substantially on a parity with Sea-Land and Seatrain rates on the same traffic, were suspended and placed under investigation by the Commission. In December 1960 the Commission disposed of 43 docket proceedings by issuing a consolidated report embracing the railroad TOFC rates involved here as well as a number of Sea-Land and Seatrain rates not now before us. 313 I.C.C. 23.
6
The Commission found that the proposed TOFC rates were compensatory, that is, they equaled or exceeded out-of-pocket costs, for all of the listed movements by railroad-leased flatcars capable of carrying two trailers (TTX cars), and for all but six of the listed movements by railroad-owned single trailer cars.4 The Commission further found that the proposed rates equaled or exceeded fully distributed costs5 for 43 of the 66 movements by TTX cars and 14 of 66 movements by railroad-owned cars.
7
Having made these findings, the Commission addressed itself to what it considered the 'most important' question—'whether these (TOFC) rates constitute destructive competition.' 313 I.C.C., at 44. It noted at the outset that, apart from the question of rates, most shippers prefer rail service to Sea-Land and Seatrain service and that, in order to attract traffic, the latter carriers must therefore establish rates somewhat below those of the railroads. As to relative costs, the Commission stated that Sea-Land costs, both out-of-pocket and fully distributed, were below railroad TOFC costs for all 66 movements using railroad-owned flatcars and for all but 2 of the 66 movements using TTX cars. But the Commission explicitly refrained from relying on these findings. Instead it concluded that because of a number of factors:
8
'(W)e cannot determine on these records where the inherent advantages may lie as to any of the rates in issue. We must recognize, also, that cost is only one of the elements which may appropriately be considered in passing upon the lawfulness of rates. In the exceptional circumstances here presented, other considerations, herein discussed, appear to us determinative of the issues.' 313 I.C.C., at 46. (Emphasis added.)
9
The Commission adknowledged that the recently enacted § 15a(3) prohibited it from holding rail rates up to a particular level merely to protect the traffic of another mode but emphasized that the prohibition was qualified by the phrase 'giving due consideration to the objectives of the national transportation policy declared in this Act.'6 In this case, the Commission stated, the reduced TOFC rates were an initial step in a program of rate reductions that could 'fairly be said to threaten the continued operation, and thus the continued existence, of the coastwise water-carrier industry generally.' 313 I.C.C., at 47. Since in the Commission's view the coastwise shipping so threatened was important to the national defense, to the shipping public, and to the economy of ports and coastal areas,7 it concluded that the objectives of the National Transportation Policy required the establishment and maintenance of a differential between rail rates and those of Sea-Land and Seatrain which would enable the coastwise carriers to continue their service. The Commission decided that an appropriate differential to accomplish this purpose would be 6% over Sea-Land rates for TOFC service and somewhat less than 6% for boxcar service. Accordingly, the proposed TOFC rates were ordered to be canceled, without prejudice to the filing of new schedules in conformity with the Commission's views.8
10
The appellee railroads then brought this action before a three-judge District Court seeking to have the Commission's order set aside to the extent that it required cancellation of the proposed TOFC rates. In November 1961, the court handed down its opinion, setting aside the Commission's order in part and enjoining the Commission from canceling TOFC rates which return at least fully distributed costs, except on the basis of certain specified findings. 199 F.Supp. 635. The court held that 'at least on this record,' § 15a(3) prohibited the imposition of a rate differential to protect the water carriers. The reference to the National Transportation Policy in § 15a(3), the court said, was intended to qualify the prohibition of mandatory differentials
11
'* * * only when factors other than the normal incidents of fair competition intervened, such as a practice which would destroy a competing mode of transportation by setting rates so low as to be hurtful to the proponent as well as his competitor or so low as to deprive the competitor of the 'inherent advantage' of being the low-cost carrier.' 199 F.Supp., at 642.
12
The court went on to discuss in some detail its understanding of the way in which costs of service for the different transportation modes were determined, the possible reasons why the Commission had been reluctant to accept relative costs as critical, and the precise circumstances under which the Commission could properly require cancellation of certain TOFC rates. Finally, in rejecting the argument that a differential was required in the interests of the national defense, the court stated that the reference to the national defense in the National Transportation Policy was merely a 'hoped-for 'end," not an operative policy, and that in any event the Commission's conclusion with respect to the national defense was not supported by adequate evidence.
13
We noted probable jurisdiction, 371 U.S. 808, 83 S.Ct. 20, 9 L.Ed.2d 52, because of the importance of the questions presented in effectuating the congressional design embodied in the Interstate Commerce Act.9
II.
14
The significance of § 15a(3) to the determination of these appeals can best be understood after consideration of the legislative history of this provision.
15
Section 15a(3) was the result of several years of congressional consideration of the problems of the transportation industry as a whole and of the railroads in particular. Concerned with their declining share in an expanding market, and with what they regarded as improper administrative interference with their efforts to compete, the railroads vigorously supported legislation introduced in 1955 on the basis of a proposal by the Secretary of Commerce. H.R. 6141, 84th Cong., 1st Sess. This bill, which became known as 'the three shall-nots,' would have amended § 15a(1) of the Act to provide that in determining whether a rate is less than a reasonable minimum, the Commission
16
'* * * shall not consider the effect of such charge on the traffic of any other mode of transportation; or the relation of such charge to the charge of any other mode of transportation; or whether such charge is lower than necessary to meet the competition of any other mode of transportation * * *.'
17
This bill was strongly opposed by the Commission and by other carriers, and died in committee. A substantially similar bill, however, was introduced in the next Congress, H.R. 5523, 85th Cong., 1st Sess., and the Commission renewed its opposition. When, after hearings, a Senate subcommittee recommended a bill to its parent committee, it explicitly rejected the three 'shall-nots.' But at the same time it expressed its concern with 'over-regulation' and emphasized that its own proposal to add a new § 15a(3) was designed to encourage competition among the difference modes and to permit each mode to assert its inherent advantages. S.Rep.No. 1647, 85th Cong., 2d Sess. 10, 18—19, U.S.Code Congressional and Administrative News 1958, p. 3456. The bill at this stage provided that in a proceeding involving competition with another mode
18
'* * * the Commission in determining whether a rail rate is lower than a reasonable minimum rate, shall consider the facts and circumstances attending the movement of the traffic by railroad and not by such other mode.' Id., at 18. (Emphasis added.)
19
At hearings before the full Senate Commerce Committee, the Commission opposed the bill as drafted, not because it disagreed with the principles set out in the subcommittee report but because it feared that the language used, particularly the italicized portion, was inconsistent with those principles and was substantially equivalent to the three 'shallnots.' Hearings on S. 3778 before the Senate Committee on Interstate and Foreign Commerce, 85th Cong., 2d Sess. 165—185. In particular Commissioner (then Chairman) Freas expressed concern that if the Commission were foreclosed from considering the effect of a rate on a competing mode, it would be powerless to reject a railroad rate which covered the railroad's out-of-pocket costs, even if that rate had the effect of destroying the inherent advantages of a lower-cost carrier. He stated:
20
'Whenever conditions permit, given transportation should return the full cost of performing carrier service. * * * In many instances, however, the full cost of the low-cost form of transportation exceeds the out-of-pocket cost of another. If, then, we are required to accept the rates of the high cost carrier merely because they exceed its out-of-pocket costs, we see no way of preserving the inherent advantages of the low cost carrier.' Id., at 168.
21
Commissioner Freas made it clear that the Commission believed the railroads should be permitted to assert their inherent advantages too, id., at 172, and suggested that any proposal specifically authorize the Commission to give 'due consideration to the inherent cost and service advantages of the respective carriers,' id., at 169. In further discussion, it was indicated that it would be inconsistent with the National Transportation Policy to permit destruction of the inherent advantages of any mode of transportation, id., at 170—171, 177, and when Senator Potter suggested the deletion of the phrase 'and not by such other mode' and the addition of a reference to the National Transportation Policy, Chairman Freas answered: 'We will buy Senator Potter's suggestion.' Id., at 177—178. Senator Potter's suggestion was adopted in the final version of the bill.
22
Other testimony of particular interest here is that of John L. Weller, President of Seatrain, who testified on behalf of Seatrain and Pan-Atlantic (now Sea-Land). In opposing the bill recommended by the subcommittee, Mr. Weller emphasized that he did not seek any more than to make it possible for the Commission to preserve the inherent advantages of the water carriers he represented:
23
'As I explained, our kind of operation can only exist with a differential under the railroad rates; that is No. 1. We are not entitled to have such a differential, nor do I urge one, except in the case where cost is lower than the railroad cost. We have no right to ask for anything more than that.' Id., at 30. (Emphasis added.)
24
The proposal reported out by the Senate Commerce Committee was in the form ultimately adopted by Congress and contained the key provision that rates 'shall not be held up to a particular level to protect the traffic of any other mode of transportation, giving due consideration to the objectives of the national transportation policy declared in this Act.' The Committee, quoting with approval the subcommittee's report, made it clear that the purpose of the proposal was to permit each mode of transportation to assert its 'inherent advantages, whether they be of service of cost.' S.Rep.No. 1647, 85th Cong., 2d Sess. 3. The new subsection, the Committee stated, was designed to reaffirm the intent of the 1940 Act, an intent that had been correctly construed by the Commission in 1945 in New Automobiles in Interstate Commerce, 259 I.C.C. 475, but which, in the Committee's view, had not been consistently followed.10 The particular passage in the New Automobiles decision which the Committee endorsed contained the statement:
25
'(T)here appears no warrant for believing that rail rates, for example, should be help up to a particular level to preserve a motor-rate structure, or vice versa.' 259 I.C.C., at 538.
26
This theme—that Congress was firmly opposed to rates maintained by the Commission at an artificially high level merely to protect competing modes—was repeated in the House Commerce Committee report, H.R.Rep. No. 1922, 85th Cong., 2d Sess., and in the debates on the floor of both Houses. 104 Cong.Rec. 10822, 10841—10843, 10858—10859, 12524, 12531, 15528. As stated by Representative Harris, Chairman of the House Commerce Committee, if a carrier could provide a rate that was 'fully compensatory,' the Commission could not force it up to a higher level 'just because it is necessary to keep another mode of transportation in business.' Id., at 12531. The mood of Congress was perhaps best summarized by Senator Smathers when he said:
27
'(W)e are going to eliminate some of the paternalism which has heretofore existed in the minds of the Interstate Commerce Commission. I think we will breathe into our whole system of transportation some new competition, which of course is needed, because the public and the consumer will benefit therefrom.' Id., at 15528.
28
This revealing legislative history fills out the contours of § 15a(3). There can be no doubt that the purpose of this provision was to permit the railroads to respond to competition by asserting whatever inherent advantages of cost and service they possessed. The Commission, in the view of the proponents of the bill, had thwarted effective competition by insisting that each form of transportation subject to its jurisdiction must remain viable at all costs and must therefore receive a significant share of the traffic. It had, in the words of one Congressman, become a 'giant handicapper.'11
29
Moreover, it is clear that Congress did not consciously or inadvertently defeat this purpose when it included in § 15a(3) a reference to the National Transportation Policy. The principal reason for this reference, as the hearings show, was to emphasize the power of the Commission to prevent the railroads from destroying or impairing the inherent advantages of other modes. And the precise example given to the Senate Committee, which led to the language adopted, was a case in which the railroads, by establishing on a part of their operations a compensatory rate below their fully distributed cost, forced a smaller competing lower cost mode to go below its own fully distributed cost and thus perhaps to go out of business.
III.
30
We agree with the District Court that 'at least on this record,' the Commission's rejection of the TOFC rates here at issue and the requirement of a differential over the rates of the coastwise carriers were not consistent with the mandate of § 15a(3). In light of the findings and conclusions underlying the Commission's decision, and more particularly its putting aside the question of 'inherent advantages,' its insistence that TOFC rates, in the words of the prohibition in § 15a(3), 'be held up to a particular level to protect the traffic' of the coastwise carriers cannot be justified on the basis of the objectives of the National Transportation Policy. Since the Commission appears to have relied principally on two aspects of that policy—(i) the prohibition of 'unfair or destructive competitive practices,' and (ii) the objective of preserving a transportation system 'adequate to meet the needs of the commerce of the United States * * * and of the national defense' (note 6, supra)—we shall consider each of these aspects separately.
31
1. Unfair or Destructive Competitive Practices.—If there is one fact that stands out in bold relief in the legislative history of § 15a(3), it is that Congress did not regard the setting of a rate at a particular level as constituting an unfair or destructive competitive practice simply because that rate would divert some or all of the traffic from a competing mode. Moreover, neither the Commission representative nor the witness who testified on behalf of the appellant carriers (supra, pp. 754—756) took this position, since they too recognized that such an interpretation would be inconsistent with the mandate of the National Transportation Policy to 'preserve the inherent advantages of each' mode of transportation. If a carrier is prohibited from establishing a reduced rate that is not detrimental to its own revenue requirements merely because the rate will divert traffic from others, then the carrier is thwarted from asserting its own inherent advantages of cost and service. Nor should the selective character of such a rate reduction, made in response to a particular competitive situation, be permitted, without more, to furnish a basis for rejecting the rate. Section 15a(3), in other words, made it clear that something more than even hard competition must be shown before a particular rate can be deemed unfair or destructive. The principal purpose of the reference to the National Transportation Policy, as we have seen, was to prevent a carrier from setting a rate which would impair or destroy the inherent advantages of a competing carrier, for example, by setting a rate, below its own fully distributed costs, which would force a competitor with a cost advantage on particular transportation to establish an unprofitable rate in order to attract traffic.
32
It is true that in the present case the Commission found that with respect to virtually all of the TOFC movements involved, Sea-Land's out-of-pocket and fully distributed costs were below those of the railroads. But the Commission at the same time explicitly stated that 'we cannot determine on these records where the inherent advantages may lie as to any of the rates in issue.' 313 I.C.C., at 46. (Emphasis added.) It is not for us to make this determination at this stage, or to decide in advance precisely how either carrier's inherent advantages should be measured or protected.12 It may be, for example, that neither a comparison of 'out-of-pocket' nor a comparison of 'fully distributed' costs, as those terms are defined by the Commission, is the appropriate method of deciding which of two competing modes has the cost advantage on a given movement.13 And even if the cost advantage on each movement were determined to lie with the coastwise carriers, it may be that some or all of the TOFC rates at issue here should be allowed to stand because they would not unduly impair that advantage.14 These and other similar questions should be left for initial resolution to the Commission's informed judgment.
33
The court below set out at some length its understanding of the Commission's methods of arriving at carrier costs, its analysis of the role of 'value-of-service' concepts in rate making, and its views of the precise circumstances under which the Commission could lawfully disallow the TOFC rates at issue. We find it unnecessary to consider that discussion in this instance, since we hold only that on the present record, the disallowance of the rates in question was not adequately supported. Cf. Securities & Exchange Comm. v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626.
34
2. The Needs of the Commerce of the United States and of the National Defense.—The Commission gave considerable weight to the factor of 'national defense' and perhaps of 'commerce' in arriving at its decision. But the District Court discounted these factors, concluding that the reference in the National Transportation Policy to the national defense (and presumably to commerce as well) represented merely a 'hoped-for 'end," not an operative policy. We disagree with this conclusion, but hold that the Commission's reliance on these factors was not supported by adequate findings or substantial evidence.
35
The primary reason for the reference to the National Transportation Policy in § 15a(3) was to confirm the Commission's power to protect the inherent advantages of all carriers from destructive competition. But we cannot conclude that this was the only reason, especially in view of the choice not to accept the Commission's proposal, which would have expressed the qualification in terms of the inherent advantage element alone. See p. 755, supra. Nor can we conclude that the statutory references to such virtal considerations as national defense are mere window dressing, without any practical significance in terms of the Commission's function. 'Congress unequivocally reserved to the Commission power to regulate reasonableness of interstate rates in the light of the needs of national defense.' United States v. Capital Transit Co., 325 U.S. 357, 362, 65 S.Ct. 1176, 1178, 89 L.Ed. 1663.
36
On the other hand, by recognizing the relevance of such considerations as national defense, we do not imply that these broad policy factors may be applied so freely as to nullify either the more particularized mandates of the National Transportation Policy or the clear congressional design embodied in § 15a(3). Normally, it is these more specific considerations that should govern the lawfulness of proposed rates in a case involving intermodal competition. Only under extraordinary circumstances may the Commission properly permit them to be outweighed. To justify such a result, we believe it must be demonstrated that the proposed rates in themselves genuinely threaten the continued existence of a transportation service that is uniquely capable of filling a transcendent national defense or other public need.
37
Measured against this standard, the Commission's conclusions cannot be sustained. The Commission did state that the proposed rates were an 'initial step' in a program of rate reductions that 'can fairly be said to threaten' the existence of the coastwise carriers, but it made no findings, and referred to no supporting evidence, to the effect that these particular TOFC rates would drive the corresponding water carrier rates below a profitable level or otherwise endanger the carriers' survival. Cf. Burlington Truck Lines, Inc., v. United States, 371 U.S. 156, 167—168, 83 S.Ct. 239, 245—246, 9 L.Ed.2d 207; Gilbertville Trucking Co. v. United States, 371 U.S. 115, 130—131, 83 S.Ct. 217, 226—227, 9 L.Ed.2d 177. It is not enough to rely on the possible effect of other rate reductions not here in issue, a situation with which the Commission has ample power to deal if occasion arises.
38
Nor did the Commission present an adequate basis for concluding that either the national defense or any significant segment of the country's commerce depends upon the operation of Sea-Land or Seatrain.15 We need not consider the question whether reliance on other additional sources might have been sufficient,16 for we believe that the question is one for initial determination by the Commission, and that all parties should have an opportunity to adduce relevant evidence, including any evidence tending to indicate that disallowance of the proposed TOFC rates might adversely affect the commerce or the national defense of the country. Once raised, these considerations (like the factor of inherent advantage) do not exist solely for the benefit of protesting carriers.
39
In conclusion: We agree with the District Court that the Commission's order, insofar as it related to the TOFC rates at issue, must be set aside. We disagree, however, with that court's determination that the needs of the national defense are not an operative part of the National Transportation Policy, and we deem it inappropriate to approve or disapprove of other aspects of the court's opinion. Accordingly, we decide that the judgment below should be vacated, the order of the Commission set aside to the extent that it related to certain railroad TOFC rates described herein, and the cause remanded to the Commission for further proceedings consistent with this opinion.
40
It is so ordered.
41
Judgment vacated, Commission's order set aside, and cause remanded to Commission.
1
Section 15a(3) of the Interstate Commerce Act, 72 Stat. 572, 49 U.S.C. § 15a(3), provides:
'In a proceeding involving competition between carriers of different modes of transportation subject to this Act, the Commission, in determining whether a rate is lower than a reasonable minimum rate, shall consider the facts and circumstances attending the movement of the traffic by the carrier or carriers to which the rate is applicable. Rates of a carrier shall not be held up to a particular level to protect the traffic of any other mode of transportation, giving due consideration to the objectives of the national transportation policy declared in this Act.'
2
This break-bulk service involved the physical unloading of freight from rail car or truck and the loading of the cargo into the ships, with the operation reversed at the port of destination.
3
Since the establishment of these reduced rates would leave higher rates in effect to and from certain intermediate points involving shorter hauls, thus violating the long- and short-haul provisions of § 4(1) of the Act, 49 U.S.C. § 4(1), the railroads also applied to the Commission for the relief from these provisions which § 4(1) permits the Commission to grant. This fourth-section application was denied by the Commission because, for reasons summarized in the text of this opinion, the Commission found the proposed TOFC rates not shown to be just and reasonable. With respect to the fourth-section application itself, the Commission noted that '(n)o shippers or receivers located at the intermediate points oppose the granting of fourth-section relief.' 313 I.C.C., at 33. Indeed, no individual shippers came forward to urge that the selective character of the reduced TOFC rates here involved in any way discriminated against them, and in this Court the National Industrial Traffic League, a nationwide organization of shippers, has filed a brief as amicus curiae urging affirmance of the decision below.
4
The rates for these six movements were withdrawn and are not at issue. (The Commission had stated that it had no way of knowing the percentages of TOFC traffic that would move in TTX cars and the percentage that would move in railroad-owned cars and had thus concluded that the rates for the six movements in question had not been shown to be compensatory.)
5
The Commission has stated, in discussing railroad costs, that:
'Fully distributed costs based on the out-of-pocket costs plus a revenue-ton and revenue ton-mile distribution of the constant costs, including deficits, indicate the revenue necessary to a fair return on the traffic, disregarding ability to pay.' New Automobiles in Interstate Commerce, 259 I.C.C. 475, 513 (1945).
6
The National Transportation Policy, 54 Stat. 899, 49 U.S.C. preceding § 1, was added to the Interstate Commerce Act in 1940. It provides:
'It is hereby declared to be the national transportation policy of the Congress to provide for fair and impartial regulation of all modes of transportation subject to the provisions of this Act, 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.'
7
In support of these conclusions, the Commission quoted with approval passages from a 1955 report of the United States Maritime Administration, 'A Review of the Coastwise and Intercoastal Shipping Trades,' which emphasized the national defense importance of break-bulk cargo ships; from a 1950 congressional report, S.Rep.No.2494, 81st Cong., 2d Sess. 17, which referred to 'the importance to national defense of having domestic tonnage readily available'; and from a 1945 Commission decision, War Shipping Admin. T A. Application, 260 I.C.C. 589, 591, which spoke of the 'dependency of ports and coastal areas upon the existence of water transportation.'
8
Five of the 10 Commissioners then in office joined in the entire report. A sixth, Commissioner Hutchinson, concurred, stating that he was 'in general agreement with the majority report,' 313 I.C.C., at 50, adding his own view that 'the ultimate effect of approval of the (TOFC) schedules would be to allow rates of the high-cost carrier (TOFC) to gravitate to a level whereby the low-cost carrier (sea-land) will be forced to go below its full costs in order to participate in the traffic.' Id., at 51. He also expressed some doubt as to whether a 6% differential was warranted. Commissioner McPherson, concurring in part, would have approved all compensatory rates but would have imposed no differential. Three Commissioners (Commissioner Freas, joined by Chairman Winchell and Commissioner Webb) dissented on the ground that the Act neither required nor permitted 'blanket protection' for water carriers or for any mode of transportation. Id., at 51 52.
In view of our disposition of this case, it is not necessary to consider whether, in light of Commissioner Hutchinson's concurrence, the 'majority report' in fact represented the views of a majority of the Commission and, if not, whether the Commission's decision could be sustained in the absence of any rationale commanding the support of a majority of the agency. Cf. Securities & Exchange Comm. v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626.
9
There is some question as to precisely what rates are in issue here; the United States and the Commission suggest that these appeals relate only to the TOFC rates which are equal to or exceed fully distributed costs, since the court below did not enjoin the Commission from canceling compensatory TOFC rates under that level. As we read the opinion and judgment below, however, the Commission's order was set aside insofar as it canceled all of the proposed TOFC before the court, and thus any order entered by the Commission in the future with respect to those rates would be subject to full judicial review. Accordingly, we reject as too narrow the position that the relevance of the present appeals is limited to TOFC rates that return at least the fully distributed costs of carriage.
10
During the hearings, Senator Smathers had referred to several Commission decisions, e.g., Petroleum Products in Ill. Territory, 280 I.C.C. 681, 691 (1951); Petroleum Products from Los Angeles to Arizona and New Mexico, 280 I.C.C. 509 (1951), which were believed to have substantially departed from the principles laid down in New Automobiles. Hearings on S. 3778 before the Senate Committee on Interstate and Foreign Commerce, 85th Cong., 2d Sess. 174—175.
11
Hearings, supra, note 10, at 82.
12
It was argued below, and at least intimated here, that the railroads had failed to sustain the burden of proving that they had the relative cost advantage. But we agree with the court below that if a carrier shows a proposed rate to be just and reasonable from the standpoint of its own revenue requirements, it is for a protesting carrier who relies on a claim of inherent cost advantage to bear the burden of persuading the Commission of the existence of that advantage. Of course, when such an issue is raised, each carrier should bring forward the data relating to its own costs that are required for resolution of the issue. See Various Commodities from or to Ark. & Tex., 314 I.C.C. 215.
13
The utility of the concepts of fully distributed and out-of-pocket costs may be limited to the area in which they have traditionally been used—that of determining the reasonableness of a rate from the standpoint of a carrier's own revenue requirements. If so, some different measure may be preferred for comparing the costs of two or more modes of transportation.
14
Even though carrier A may have lower costs than carrier B, the overall advantage may rest with B, for example, if the difference in cost is very slight but the service of B is so superior as to out-weigh any such marginal cost difference. In this event a rate established by B may be lawful even if it has the effect of diverting some or all of A's traffic.
Conversely, the cost advantage of A over B may be so great that even if B were to reduce its rate to the level of its out-of-pocket costs, A might be able to continue to compete effectively and still charge a profitable rate. In this event B's reduced rate would not appear to impair A's inherent cost advantage.
15
The materials relied upon by the Commission are referred to in note 7, supra. These materials were general in nature, and the most recent dated back to 1955. Further, they were not sufficiently related to the specific service rendered by Sea-Land and Seatrain, which, we were informed by Sea-Land's counsel at oral argument, have a combined total of only eight ships currently in operation.
16
The Commission in its brief has cited the 1960 testimony of Vice Admiral Wilson and of the Mayor of Savannah, Georgia, in Decline of Coastwise and Intercoastal Shipping Industry, Hearings before the Merchant Marine and Fisheries Subcommittee of the Senate Committee on Interstate and Foreign Commerce, 86th Cong., 2d Sess. 83—86, 105—106, and has also cited a 1961 letter from Vice Admiral Sylvester to Senator Butler, reproduced at 107 Cong.Rec. 7299—7302.
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