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380 U.S. 263
85 S.Ct. 994
13 L.Ed.2d 827
TEXTILE WORKERS UNION OF AMERICA, Petitioner,v.DARLINGTON MANUFACTURING COMPANY et al. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DARLINGTON MANUFACTURING COMPANY et al.
Nos. 37, 41.
Argued Dec. 9, 1964.
Decided March 29, 1965.
[Syllabus from pages 263-264 intentionally omitted]
Dominick L. Manoli, Washington, D.C., and Irving Abramson, New York City, for petitioners.
Sam J. Ervin, Jr., for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
We here review judgments of the Court of Appeals setting aside and refusing to enforce an order of the National Labor Relations Board which found respondent Darlington guilty of an unfair labor practice by reason of having permanently closed its plant following petitioner union's election as the bargaining representative of Darlington's employees.
2
Darlington Manufacturing Company was a South Carolina corporation operating one textile mill. A majority of Darlington's stock was held by Deering Milliken, a New York 'selling house' marketing textiles produced by others.1 Deering Milliken in turn was controlled by Roger Milliken, president of Darlington, and by other members of the Milliken family.2 The National Labor Relations Board found that the Milliken family, through Deering Milliken, operated 17 textile manufacturers, including Darlington, whose products manufactured in 27 different mills, were marketed through Deering Milliken.
3
In March 1956 petitioner Textile Workers Union initiated an organizational campaign at Darlington which the company resisted vigorously in various ways, including threats to close the mill if the union won a representation election.3 On September 6, 1956, the union won an election by a narrow margin. When Roger Milliken was advised of the union victory, he decided to call a meeting of the Darlington board of directors to consider closing the mill. Mr. Milliken testified before the Labor Board:
4
'I felt that as a result of the campaign that had been conducted and the promises and statements made in these letters that had been distributed (favoring unionization), that if before we had had some hope, possible hope of achieving competitive (costs) * * * by taking advantage of new machinery that was being put in, that this hope had diminished as a result of the election because a majority of the employees had voted in favor of the union * * *.' (R. 457.)
5
The board of directors met on September 12 and voted to liquidate the corporation, action which was approved by the stockholders on October 17. The plant ceased operations entirely in November, and all plant machinery and equipment were sold piecemeal at auction in December.
6
The union filed charges with the Labor Board claiming that Darlington had violated §§ 8(a)(1) and (3) of the National Labor Relations Act by closing its plant,4 and § 8(a)(5) by refusing to bargain with the union after the election.5 The Board, by a divided vote, found that Darlington had been closed because of the antiunion animus of Roger Milliken, and held that to be a violation of § 8(a)(3).6 The Board also found Darlington to be part of a single integrated employer group controlled by the Milliken family through Deering Milliken; therefore Deering Milliken could be held liable for the unfair labor practices of Darlington.7 Alternatively, since Darlington was a part of the Deering Milliken enterprise, Deering Milliken had violated the Act by closing part of its business for a discriminatory purpose. The Board ordered back pay for all Darlington employees until they obtained substantially equivalent work or were put on preferential hiring lists at the other Deering Milliken mills. Respondent Deering Milliken was ordered to bargain with the union in regard to details of compliance with the Board order. 139 N.L.R.B. 241.
7
On review, the Court of Appeals, sitting en banc, set aside the order and denied enforcement by a divided vote. 325 F.2d 682. The Court of Appeals held that even accepting arguendo the Board's determination that Deering Milliken had the status of a single employer, a company has the absolute right to close out a part or all of its business regardless of antiunion motives. The court therefore did not review the Board's finding that Deering Milliken was a single integrated employer. We granted certiorari, 377 U.S. 903, 84 S.Ct. 1170, 12 L.Ed.2d 175, to consider the important questions involved. We hold that so far as the Labor Relations Act is concerned, an employer has the absolute right to terminate his entire business for any reason he pleases, but disagree with the Court of Appeals that such right includes the ability to close part of a business no matter what the reason. We conclude that the cause must be remanded to the Board for further proceedings.
8
Preliminarily is should be observed that both petitioners argue that the Darlington closing violated § 8(a)(1) as well as § 8(a)(3) of the Act. We think, however, that the Board was correct in treating the closing only under § 8(a)(3).8 Section 8(a)(1) provides that it is an unfair labor practice for an employer 'to interfere with, restrain, or coerce employees in the exercise of' § 7 rights.9 Naturally, certain business decisions will, to some degree, interfere with concerted activities by employees. But it is only when the interference with § 7 rights outweighs the business justification for the employer's action that § 8(a)(1) is violated. See, e.g., National Labor Relations Board v. United Steelworkers, 357 U.S. 357, 78 S.Ct. 1268, 2 L.Ed.2d 1383; Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372. A violation of § 8(a)(1) alone therefore presupposes an act which is unlawful even absent a discriminatory motive. Whatever may be the limits of § 8(a)(1), some employer decisions are so peculiarly matters of management prerogative that they would never constitute violations of § 8(a)(1), whether or not they involved sound business judgment, unless they also violated § 8(a)(3). Thus it is not questioned in this case that an employer has the right to terminate his business, whatever the impact of such action on concerted activities, if the decision to close is motivated by other than discriminatory reasons.10 But such action, if discriminatorily motivated, is encompassed within the literal language of § 8(a)(3). We therefore deal with the Darlington closing under that section.
I.
9
We consider first the argument, advanced by the petitioner union but not by the Board, and rejected by the Court of Appeals, that an employer may not go completely out of business without running afoul of the Labor Relations Act if such action is prompted by a desire to avoid unionization.11 Given the Board's findings on the issue of motive, acceptance of this contention would carry the day for the Board's conclusion that the closing of this plant was an unfair labor practice, even on the assumption that Darlington is to be regarded as an independent unrelated employer. A proposition that a single businessman cannot choose to go out of business if he wants to would represent such a startling innovation that it should not be entertained without the clearest manifestation of legislative intent or unequivocal judicial precedent so construing the Labor Relations Act. We find neither.
10
So far as legislative manifestation is concerned, it is sufficient to say that there is not the slightest indication in the history of the Wagner Act or of the Taft-Hartley Act that Congress envisaged any such result under either statute.
11
As for judicial precedent, the Board recognized that '(t)here is no decided case directly dispositive of Darlington's claim that it had an absolute right to close its mill, irrespective of motive.' 139 N.L.R.B., at 250. The only language by this Court in any way adverting to this problem is found in Southport Petroleum Co. v. National Labor Relations Board, 315 U.S. 100, 106, 62 S.Ct. 452, 86 L.Ed. 718, where it was stated:
12
'Whether there was a bona fide discontinuance and a true change of ownership—which would terminate the duty of reinstatement created by the Board's order—or merely a disguised continuance of the old employer, does not clearly appear * * *.'
13
The courts of appeals have generally assumed that a complete cessation of business will remove an employer from future coverage by the Act. Thus the Court of Appeals said in these cases: The Act 'does not compel a person to become or remain an employee. It does not compel one to become or remain an employer. Either may withdraw from that status with immunity, so long as the obligations of any employment contract have been met.' 325 F.2d at 685. The Eighth Circuit, in National Labor Relations Board v. New Madrid Mfg. Co., 215 F.2d 908, 914, was equally explicit:
14
'But none of this can be taken to mean that an employer does not have the absolute right, at all times, to permanently close and go out of business * * * for whatever reason he may choose, whether union animosity or anything else, and without his being thereby left subject to a remedial liability under the Labor Management Relations Act for such unfair labor practices as he may have committed in the enterprise, except up to the time that such actual and permanent closing * * * has occurred.'12
15
The AFL-CIO suggests in its amicus brief that Darlington's action was similar to a discriminatory lockout, which is prohibited "because designed to frustrate organizational efforts, to destroy or undermine bargaining representation, or to evade the duty to bargain."13 One of the purposes of the Labor Relations Act is to prohibit the discriminatory use of economic weapons in an effort to obtain future benefits. The discriminatory lockout designed to destroy a union, like a 'runaway shop,' is a lever which has been used to discourage collective employee activities in the future. But a complete liquidation of a business yields no such future benefit for the employer, if the termination is bona fide.14 It may be motivated more by spite against the union than by business reasons, but it is not the type of discrimination which is prohibited by the Act. The personal satisfaction that such an employer may derive from standing on his beliefs and the mere possibility that other employers will follow his example are surely too remote to be considered dangers at which the labor statutes were aimed.15 Although employees may be prohibited from engaging in a strike under certain conditions, no one would consider it a violation of the Act for the same employees to quit their employment en masse, even if motivated by a desire to ruin the employer. The very permanence of such action would negate any future economic benefit to the employees. The employer's right to go out of business is no different.
16
We are not presented here with the case of a 'runaway shop,'16 whereby Darlington would transfer its work to another plant or open a new plant in another locality to replace its closed plant.17 Nor are we concerned with a shutdown where the employees, by renouncing the union, could cause the plant to reopen.18 Such cases would involve discriminatory employer action for the purpose of obtaining some benefit in the future from the employees in the future.19 We hold here only that when an employer closes his entire business, even if the liquidation is motivated by vindictiveness toward the union, such action is not an unfair labor practice.20
II.
17
While we thus agree with the Court of Appeals that viewing Darlington as an independent employer the liquidation of its business was not an unfair labor practice, we cannot accept the lower court's view that the same conclusion necessarily follows if Darlington is regarded as an integral part of the Deering Milliken enterprise.
18
The closing of an entire business, even though discriminatory, ends the employer-employee relationship; the force of such a closing is entirely spent as to that business when termination of the enterprise takes place. On the other hand, a discriminatory partial closing may have repercussions on what remains of the business, affording employer leverage for discouraging the free exercise of § 7 rights among remaining employees of much the same kind as that found to exist in the 'runaway shop' and 'temporary closing' cases. See supra, pp. 272-273. Moreover, a possible remedy open to the Board in such a case, like the remedies available in the 'runaway shop' and 'temporary closing' cases, is to order reinstatement of the discharged employees in the other parts of the business.21 No such remedy is available when an entire business has been terminated. By analogy to those cases involving a continuing enterprise we are constrained to hold, in disagreement with the Court of Appeals, that a partial closing is an unfair labor practice under § 8(a)(3) if motivated by a purpose to chill unionism in any of the remaining plants of the single employer and if the employer may reasonably have foreseen that such closing would likely have that effect.
19
While we have spoken in terms of a 'partial closing' in the context of the Board's finding that Darlington was part of a larger single enterprise controlled by the Milliken family, we do not mean to suggest that an organizational integration of plants or corporations is a necessary prerequisite to the establishment of such a violation of § 8(a)(3). If the persons exercising control over a plant that is being closed for antiunion reasons (1) have an interest in another business, whether or not affiliated with or engaged in the same line of commercial activity as the closed plant, of sufficient substantiality to give promise of their reaping a benefit from the discouragement of unionization in that business; (2) act to close their plant with the purpose of producing such a result; and(3) occupy a relationship to the other business which makes it realistically foreseeable that its employees will fear that such business will also be closed down if they persist in organizational activities, we think that an unfair labor practice has been made out.
20
Although the Board's single employer finding necessarily embraced findings as to Roger Milliken and the Milliken family which, if sustained by the Court of Appeals, would satisfy the elements of 'interest' and 'relationship' with respect to other parts of the Deering Milliken enterprise, that and the other Board findings fall short of establishing the factors of 'purpose' and 'effect' which are vital requisites of the general principles that govern a case of this kind.
21
Thus, the Board's findings as to the purpose and foreseeable effect of the Darlington closing pertained only to its impact on the Darlington employees. No findings were made as to the purpose and effect of the closing with respect to the employees in the other plants comprising the Deering Milliken group. It does not suffice to establish the unfair labor practice charged here to argue that the Darlington closing necessarily had an adverse impact upon unionization in such other plants. We have heretofore observed that employer action which has a foreseeable consequence of discouraging concerted activities generally22 does not amount to a violation of § 8(a)(3) in the absence of a showing of motivation which is aimed at achieving the prohibited effect. See Local 357 International Brotherhood of Teamsters v. National Labor Relations Board, 365 U.S. 667, 81 S.Ct. 835, and the concurring opinion therein, at 677, 81 S.Ct. at 840. In an area which trenches so closely upon otherwise legitimate employer prerogatives, we consider the absence of Board findings on this score a fatal defect in its decision. The Court of Appeals for its part did not deal with the question of purpose and effect at all, since it concluded that an employer's right to close down his entire business because of distaste for unionism, also embraced a partial closing so motivated.
22
Apart from this, the Board's holding should not be accepted or rejected without court review of its single employer finding, judged, however, in accordance with the general principles set forth above. Review of that finding, which the lower court found unnecessary on its view of the cause, now becomes necessary in light of our holding in this part of our opinion, and is a task that devolves upon the Court of Appeals in the first instance. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.
23
In these circumstances, we think the proper disposition of this cause is to require that it be remanded to the Board so as to afford the Board the opportunity to make further findings on the issue of purpose and effect. See, e.g., National Labor Relations Board v. Virginia Elec. & Power Co., 314 U.S. 469, 479—480, 62 S.Ct. 344, 349, 86 L.Ed. 348. This is particularly appropriate here since the cases involve issues of first impression. If such findings are made, the cases will then be in a posture for further review by the Court of Appeals on all issues. Accordingly, without intimating any view as to how any of these matters should eventuate, we vacate the judgments of the Court of Appeals and remand the cases to that court with instructions to remand them to the Board for further proceedings consistent with this opinion. It is so ordered.
24
Judgments of Court of Appeals vacated and cases remanded with instructions.
25
Mr. Justice STEWART took no part in the decision of these cases.
26
Mr. Justice GOLDBERG took no part in the consideration or decision of these cases.
1
Deering Milliken & Co. owned 41% of the Darlington stock. Cotwool Manufacturing Corp., another textile manufacturer, owned 18% of the stock. In 1960 Deering Milliken & Co. was merged into Cotwool, the survivor being named Deering Milliken, Inc.
2
The Milliken family owned only 6% of the Darlington stock, but held a majority stock interest in both Deering Milliken & Co. and Cotwool, see n. 1, supra.
3
The Board found that Darlington had interrogated employees and threatened to close the mill if the union won the election. After the decision to liquidate was made (see infra), Darlington employees were told that the decision to close was caused by the election, and they were encouraged to sign a petition disavowing the union. These practices were held to violate § 8(a) (1) of the National Labor Relations Act, n. 4, infra, and that part of the Board decision is not challenged here.
4
National Labor Relations Act, §§ 8(a)(1) and (3), as amended, 61 Stat. 140 (1947), 29 U.S.C. §§ 158(a)(1) and (3) (1958 ed.), provide in pertinent part:
'(a) It shall be an unfair labor practice for an employer—
'(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 (section 157 of this title);
'(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * * *.'
5
The union asked for a bargaining conference on September 12, 1956 (the day that the board of directors voted to liquidate), but was told to await certification by the Board. The union was certified on October 24, and did meet with Darlington officials in November, but no actual bargaining took place. The Board found this to be a violation of § 8(a)(5). Such a finding was in part based on the determination that the plant closing was an unfair labor practice, and no argument is made that § 8(a)(5) requires an employer to bargain concerning a purely business decision to terminate his enterprise. Cf. Fibreboard Paper Products Corp. v. Labor Board, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233.
6
Since the closing was held to be illegal, the Board found that the gradual discharges of all employees during November and December constituted § 8(a)(1) violations. The propriety of this determination depends entirely on whether the decision to close the plant violated § 8(a)(3).
7
Members Leedom and Rodgers agreed with the trial examiner that Deering Milliken was not a single employer. Member Rodgers dissented in arguing that Darlington had not violated § 8(a)(3) by closing.
8
The Board did find that Darlington's discharges of employees following the decision to close violated § 8(a)(1). See n. 6, supra.
9
NLRA § 7, as amended, 29 U.S.C. § 157 (1958 ed.), provides:
'Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) (section 158(a)(3) of this title).'
10
It is also clear that the ambiguous act of closing a plant following the election of a union is not, obsent an inquiry into the employer's motive, inherently discriminatory. We are thus not confronted with a situation where the employer 'must be held to intend the very consequences which foreseeably and inescapably flow from his actions * * *.' (National Labor Relations Board v. Erie Resistor Corp., 373 U.S. 221, 228, 83 S.Ct. 1139, 1145, 10 L.Ed.2d 308), in which the Board could find a violation of § 8(a)(3) without an examination into motive. See Radio Officers v. National Labor Relations Board, 347 U.S. 17, 42—43, 74 S.Ct. 323, 336, 337, 98 L.Ed. 455; Local 357 International Brotherhood of Teamsters, etc. v. National Labor Relations Board, 365 U.S. 667, 674—676, 81 S.Ct. 835, 839, 840, 6 L.Ed.2d 11.
11
The Board predicates its argument on the finding that Deering Milliken was an integrated enterprise, and does not consider it necessary to argue that an employer may not go completely out of business for antiunion reasons. Brief for National Labor Relations Board, p. 3, n. 2.
12
In New Madrid the business was transferred to a new employer, which was held liable for the unfair labor practices committed by its predecessor before closing. The closing itself was not found to be an unfair labor practice.
13
Brief for AFL—CIO, p. 7, quoting from National Labor Relations Board v. Truck Drivers Local, 353 U.S. 87, 93, 77 S.Ct. 643, 646, 1 L.Ed.2d 676. This brief was incorporated by reference as Point I of the petitioner union's brief in this Court.
14
The Darlington property and equipment could not be sold as a unit, and were eventually auctioned off piecemeal. We therefore are not confronted with a sale of a going concern, which might present different considerations under §§ 8(a)(3) and (5). Cf. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898; National Labor Relations Board v. Deena Artware, Inc., 361 U.S. 398, 80 S.Ct. 441, 4 L.Ed.2d 400.
15
Cf. NLRA § 8(c), 29 U.S.C. § 158(c) (1958 ed.). Different considerations would arise were it made to appear that the closing employer was acting pursuant to some arrangement or understanding with other employers to discourage employee organizational activities in their businesses.
16
E.g., National Labor Relations Board v. Preston Feed Corp., 4 Cir., 309 F.2d 346; National Labor Relations Board v. Wallick, 3 Cir., 198 F.2d 477. An analogous problem is presented where a department is closed for antiunion reasons but the work is continued by independent contractors. See, e.g., National Labor Relations Board v. Kelly & Picerne, Inc., 1 Cir., 298 F.2d 895; Jays Foods, Inc. v. National Labor Relations Board, 7 Cir., 292 F.2d 317; National Labor Relations Board v. R. C. Mahon Co., 6 Cir., 269 F.2d 44; National Labor Relations Board v. Bank of America, 9 Cir., 130 F.2d 624; Williams Motor Co. v. National Labor Relations Board, 8 Cir., 128 F.2d 960.
17
After the decision to close the plant, Darlington accepted no new orders, and merely continued operations for a time to fill pending orders. 139 N.L.R.B., at 244.
18
E.g., National Labor Relations Board v. Norma Mining Corp., 4 Cir., 206 F.2d 38. Similarly, if all employees are discharged but the work continues with new personnel, the effect is to discourage any future union activities. See National Labor Relations Board v. Waterman S.S. Co., 309 U.S. 206, 60 S.Ct. 493, 84 L.Ed. 704; National Labor Relations Board v. National Garment Co., 8 Cir., 166 F.2d 233; National Labor Relations Board v. Stremel, 10 Cir., 141 F.2d 317.
19
All of the cases to which we have been cited involved closings found to have been motivated, at least in part, by the expectation of achieving future benefits. See cases cited in notes 16, 18, supra. The two cases which are urged as indistinguishable from Darlington are National Labor Relations Board v. Savoy Laundry, 2 Cir., 327 F.2d 370, and National Labor Relations Board v. Missouri Transit Co., 8 Cir., 250 F.2d 261. In Savoy Laundry the employer operated one laundry plant where he processed both retail laundry pickups and wholesale laundering. Once the laundry was marked, all of it was processed together. After some of the employees organized, the employer discontinued most of the wholesale service, and thereafter discharged some of his employees. There was no separate wholesale department, and the discriminatory motive was obviously to discourage unionization in the entire plant. Missouri Transit presents a similar situation. A bus company operated an interstate line and an intrastate shuttle service connecting a military base with the interstate terminal. When the union attempted to organize all of the drivers, the shuttle service was sold and the shuttle drivers were discharged. Although the two services were treated as separate departments, it is clear from the facts of the case that the union was attempting to organize all of the drivers, and the discriminatory motive of the employer was to discourage unionization in the interstate service as well as the shuttle service.
20
Nothing we have said in this opinion would justify an employer's interfering with employee organizational activities by threatening to close his plant, as distinguished from announcing a decision to close already reached by the board of directors or other management authority empowered to make such a decision. We recognize that this safeguard does not wholly remove the possibility that our holding may result in some deterrent effect on organizational activities independent of that arising from the closing itself. An employer may be encouraged to make a definitive decision to close on the theory that its mere announcement before a representation election will discourage the employees from voting for the union, and thus his decision may not have to be implemented. Such a possibility is not likely to occur, however, except in a marginal business; a solidly successful employer is not apt to hazard the possibility that the employees will call his bluff by voting to organize. We see no practical way of eliminating this possible consequence of our holding short of allowing the Board to order an employer who chooses so to gamble with his employees not to carry out his announced intention to close. We do not consider the matter of sufficient significance in the overall labor-management relations picture to require or justify a decision different from the one we have made.
21
In the view we take of these cases we do not reach any of the challenges made to the Board's remedy afforded here.
22
See n. 10, supra.
| 67
|
380 U.S. 356
85 S.Ct. 992
13 L.Ed.2d 892
Aaron E. HENRYv.Benford C. COLLINS. Aaron E. HENRY v. Thomas H. PEARSON.
Nos. 89, 90.
March 29, 1965.
Robert L. Carter, Barbara A. Morris, Jack H. Young and Frank D. Reeves, for petitioner.
W. O. Luckett, for respondents.
PER CURIAM.
1
The petitions for certiorari are granted. The judgments are reversed.
2
After petitioner's arrest on a charge of disturbing the peace, he issued a statement to the effect that this arrest was the result of 'a diabolical plot,' in which respondents, the County Attorney and Chief of Police of Clarksdale, were implicated. Respondents brought suits for libel and obtained jury verdicts. The Supreme Court of Mississippi affirmed. Miss., 158 So.2d 28; Miss., 158 So.2d 695.
3
The following instructions requested by the respondents, approved by the trial judge, were read to the jury:
4
'The court instructs the jury for the plaintiff that malice does not necessarily mean hatred or ill will, but that malice may consist merely of culpable recklessness or a wilful and wanton disregard of the rights and interests of the person defamed.'
5
The jury, was also instructed, at respondents' request, that
6
'* * * (I)f you believe from the evidence that defendant published a false statement charging that his arrest * * * was the result of a diabolical plot * * *, you may infer malice, as defined in these instructions, from the falsity and libelous nature of the statement, although malice as a legal presumption does not arise from the fact that the statement in question is false and libelous. It is for you to determine as a fact, if you have first determined from the evidence that defendant published the statement in question and that it is false, whether or not the statement in question was actually made with malice.'
7
The jury might well have understood these instructions to allow recovery on a showing of intent to inflict harm, rather than intent to inflict harm through falsehood. See Garrison v. Louisiana, 379 U.S. 64, 73, 85 S.Ct. 209, 215, 13 L.Ed.2d 125. 'The constitutional guarantees * * * (prohibit) a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made * * * with knowledge that it was false or with reckless disregard of whether it was false or not.' New York Times Co. v. Sullivan, 376 U.S. 254, 279—280, 84 S.Ct. 710, 725—726, 11 L.Ed.2d 686.
8
For the reasons set out in their respective concurring opinions in New York Times Co. v. Sullivan, 376 U.S. 254, 293—305, 84 S.Ct. 710, 733—739, 11 L.Ed.2d 686, and Garrison v. Louisiana, 379 U.S. 64, 79—88, 85 S.Ct. 209, 222, 13 L.Ed.2d 125, Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Goldberg concur in reversal of these judgments, not merely for error in the instructions read to the jury, but on the ground that it would violate the First and Fourteenth Amendments to subject petitioner to any libel judgment solely because of his publication of criticisms against respondents' performance of their public duties.
9
Reversed.
| 23
|
380 U.S. 300
85 S.Ct. 955
13 L.Ed.2d 855
The AMERICAN SHIP BUILDING COMPANY, Petitioner,v.NATIONAL LABOR RELATIONS BOARD.
No. 255.
Argued Jan. 21, 1965.
Decided March 29, 1965.
William S. Tyson, Washington, D.C., for petitioner.
Norton J. Come, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The American Ship Building Company seeks review of a decision of the United States Court of Appeals for the District of Columbia enforcing an order of the National Labor Relations Board which found that the company had committed an unfair labor practice under §§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act.1 The question presented is that expressly reserved in National Labor Relations Board v. Truck Drivers Local Union, etc., 353 U.S. 87, 93, 77 S.Ct. 643, 646, 1 L.Ed.2d 676; namely, whether an employer commits an unfair labor practice under these sections of the Act when he temporarily lays off or 'locks out' his employees during a labor dispute to bring economic pressure in support of his bargaining position. To resolve an asserted conflict among the circuits2 upon this important question of federal labor law we granted certiorari, 379 U.S. 814, 85 S.Ct. 69, 13 L.Ed.2d 27.
2
The American Ship Building Company operates four shipyards on the Great Lakes—at Chicago, at Buffalo, and at Toledo and Lorain, Ohio. The company is primarily engaged in the repairing of ships, a highly seasonal business concentrated in the winter months when the freezing of the Great Lakes renders shipping impossible. What limited business is obtained during the shipping season is frequently such that speed of execution is of the utmost importance to minimize immobilization of the ships.
3
Since 1952 the employer has engaged in collective bargaining with a group of eight unions. Prior to the negotiations here in question, the employer had contracted with the unions on five occasions, each agreement having been preceded by a strike. The particular chapter of the collective bargaining history with which we are concerned opened shortly before May 1, 1961, when the unions notified the company of their intention to seek modification of the current contract, due to expire on August 1.
4
At the initial bargaining meeting on June 6, 1961, the company took the position that its competitive situation would not allow increased compensation. The unions countered with demands for increased fringe benefits and some unspecified wage increase. Several meetings were held in June and early July during which negotiations focussed upon the fringe benefit questions without any substantial progress. At the last meeting, the parties resolved to call in the Federal Mediation and Conciliation Service, which set the next meeting for July 19. At this meeting, the unions first unveiled their demand for a 20-cent-an-hour wage increase and proposed a six-month extension of the contract pending continued negotiations. The employer rejected the proposed extension because it would have led to expiration during the peak season.
5
Further negotiations narrowed the dispute to five or six issues, all involving substantial economic differences. On July 31, the eve of the contract's expiration, the employer made a proposal; the unions countered with another, revived their proposal for a six-month extension, and proposed in the alternative that the existing contract, with its no-strike clause, be extended indefinitely with the terms of the new contract to be made retroactive to August 1.3 After rejection of the proposed extensions, the employer's proposal was submitted to the unions' membership; on August 8 the unions announced that this proposal had been overwhelmingly rejected. The following day, the employer made another proposal which the unions refused to submit to their membership; the unions made no counteroffer and the parties separated without setting a date for further meetings, leaving this to the discretion of the conciliator.
6
Thus on August 9, after extended negotiations, the parties separated without having resolved substantial differences on the central issues dividing them and without having specific plans for further attempts to resolve them—a situation which the trial examiner found was an impasse. Throughout the negotiations, the employer displayed anxiety as to the unions' strike plans, fearing that the unions would call a strike as soon as a ship entered the Chicago yard or delay negotiations into the winter to increase strike leverage. The union negotiator consistently insisted that it was his intention to reach an agreement without calling a strike; however, he did concede incomplete control over the workers—a fact borne out by the occurrence of a wildcat strike in February 1961. Because of the danger of an unauthorized strike and the consistent and deliberate use of strikes in prior negotiations, the employer remained apprehensive of the possibility of a work stoppage.
7
In light of the failure to reach an agreement and the lack of available work, the employer decided to lay off certain of his workers. On August 11 the employees received a notice which read: 'Because of the labor dispute which has been unresolved since August 1, 1961, you are laid off until further notice.' The Chicago yard was completely shut down and all but two employees laid off at the Toledo yard. A large force was retained at Lorain to complete a major piece of work there and the employees in the Buffalo yard were gradually laid off as miscellaneous tasks were completed. Negotiations were resumed shortly after these layoffs and continued for the following two months until a two-year contract was agreed upon on October 27. The employees were recalled the following day.
8
Upon claims filed by the unions, the General Counsel of the Board issued a complaint charging the employer with violations of §§ 8(a)(1), (a)(3), and (a) (5).4 The trial examiner found that although there had been no work in the Chicago yard since July 19, its closing was not due to lack of work. Despite similarly slack seasons in the past, the employer had for 17 years retained a nucleus crew to do maintenance work and remain ready to take such work as might come in. The examiner went on to find that the employer was reasonably apprehensive of a strike at some point. Although the unions had given assurances that there would be no strike, past bargaining history was thought to justify continuing apprehension that the unions would fail to make good their assurances. It was further found that the employer's primary purpose in locking out his employees was to avert peculiarly harmful economic consequences which would be imposed on him and his customers if a strike were called either while a ship was in the yard during the shipping season or later when the yard was fully occupied. The examiner concluded that the employer:
9
'was economically justified and motivated in laying off its employees when it did, and the fact that its judgment was partially colored by its intention to break the impasse which existed is immaterial in the peculiar and special circumstances of this case. Respondent, by its actions, therefore, did not violate sections 8(a)(1), (3), and (5) of the Act.'
10
A three-to-two majority of the Board rejected the trial examiner's conclusion that the employer could reasonably anticipate a strike. Finding the unions' assurances sufficient to dispel any such apprehension, the Board was able to find only one purpose underlying the layoff: a desire to bring economic pressure to secure prompt settlement of the dispute on favorable terms. The Board did not question the examiner's finding that the layoffs had not occurred until after a bargaining impasse had been reached. Nor did the Board remotely suggest that the company's decision to lay off its employees was based either on union hostility or on a desire to avoid its bargaining obligations under the Act. The Board concluded that the employer 'by curtailing its operations at the South Chicago yard with the consequent layoff of the employees, coerced employees in the exercise of their bargaining rights in violation of Section 8(a)(1) of the Act, and discriminated against its employees within the meaning of Section 8(a)(3) of the Act.'5 142 N.L.R.B., at 1364—1365.
11
The difference between the Board and the trial examiner is thus a narrow one turning on their differing assessments of the circumstances which the employer claims gave it reason to anticipate a strike. Both the Board and the examiner assumed, within the established pattern of Board analysis,6 that if the employer had shut down its yard and laid off its workers solely for the purpose of bringing to bear economic pressure to break an impasse and secure more favorable contract terms, an unfair labor practice would be made out. 'The Board has held that, absent special circumstances, an employer may not during bargaining negotiations either threaten to lock out or lock out his employees in aid of his bargaining position. Such conduct the Board has held presumptively infringes upon the collective-bargaining rights of employees in violation of Section 8(a)(1) and the lockout, with its consequent layoff, amounts to discrimination within the meaning of Section 8(a)(3). In addition, the Board has held that such conduct subjects the Union and the employees it represents to unwarranted and illegal pressure and creates an atmosphere in which the free opportunity for negotiation contemplated by Section 8(a)(5) does not exist.' Quaker State Oil Refining Corp., 121 N.L.R.B. 334, 337.
12
The Board has, however, exempted certain classes of lockouts from proscription. 'Accordingly, it has held that lockouts are permissible to safeguard against * * * loss where there is reasonable ground for believing that a strike was threatened or imminent.' Ibid. Developing this distinction in its rulings, the Board has approved lockouts designed to prevent seizure of a plant by a sitdown strike, Link-Belt Co., 26 N.L.R.B. 227; to forestall repetitive disruptions of an integrated operation by 'quickie' strikes, International Shoe Co., 93 N.L.R.B. 907; to avoid spoilage of materials which would result from a sudden work stoppage, Duluth Bottling Assn., 48 N.L.R.B. 1335; and to avert the immobilization of automobiles brought in for repair, Betts Cadillac Olds, Inc., 96 N.L.R.B. 268. In another distinct class of cases the Board has sanctioned the use of the lockout by a multiemployer bargaining unit as a response to a whipsaw strike against one of its members. Buffalo Linen Supply Co., 109 N.L.R.B. 447, rev'd, sub. nom. Truck Drivers Local Union, etc. v. National Labor Relations Board, 2 Cir., 231 F.2d 110, rev'd, 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676.7
13
In analyzing the status of the bargaining lockout under §§ 8(a)(1) and (3) of the National Labor Relations Act, it is important that the practice with which we are here concerned be distinguished from other forms of temporary separation from employment. No one would deny that an employer is free to shut down his enterprise temporarily for reasons of renovation or lack of profitable work unrelated to his collective bargaining situation. Similarly, we put to one side cases where the Board has concluded on the basis of substantial evidence that the employer has used a lockout as a means to injure a labor organization or to evade his duty to bargain colectively. Hopwood Retinning Co., 4 N.L.R.B. 922; Scott Paper Box Co., 81 N.L.R.B. 535. What we are here concerned with is the use of a temporary layoff of employees solely as a means to bring economic pressure to bear in support of the employer's bargaining position, after an impasse has been reached. This is the only issue before us, and all that we decide.8
14
To establish that this practice is a violation of § 8(a)(1), it must be shown that the employer has interfered with, restrained, or coerced employees in the exercise of some right protected by § 7 of the Act. The Board's position is premised on the view that the lockout interferes with two of the rights guaranteed by § 7: the right to bargain collectively and the right to strike. In the Board's view, the use of the lockout 'punishes' employees for the presentation of and adherence to demands made by their bargaining representatives and so coerces them in the exercise of their right to bargain collectively. It is important to note that there is here no allegation that the employer used the lockout in the service of designs inimical to the process of collective bargaining. There was no evidence and no finding that the employer was hostile to its employees' banding to gether for collective bargaining or that the lockout was designed to discipline them for doing so. It is therefore inaccurate to say that the employer's intention was to destroy of frustrate the process of collective bargaining. What can be said is that it intended to resist the demands made of it in the negotiations and to secure modification of these demands. We cannot see that this intention is in any way inconsistent with the employees' rights to bargain collectively.
15
Moreover, there is no indication, either as a general matter or in this specific case, that the lockout will necessarily destroy the unions' capacity for effective and responsible representation. The unions here involved have vigorously represented the employees since 1952, and there is nothing to show that their ability to do so has been impaired by the lockout. Nor is the lockout one of those acts which are demonstrably so destructive of collective bargaining that the Board need not inquire into employer motivation, as might be the case, for example, if an employer permanently discharged his unionized staff and replaced them with employees known to be possessed of a violent antiunion animus. Cf. National Labor Relations Board v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308. The lockout may well dissuade employees from adhering to the position which they initially adopted in the bargaining, but he right to bargain collectively does not entail any 'right' to insist on one's position free from economic disadvantage. Proper analysis of the problem demands that the simple intention to support the employer's bargaining position as to compensation and the like be distinguished from a hostility to the process of collective bargaining which could suffice to render a lockout unlawful. See National Labor Relations Board v. Brown, 380 U.S. 278, 85 S.Ct. 980.
16
The Board has taken the complementary view that the lockout interferes with the right to strike protected under ss 7 and 13 of the Act9 in that it allows the employer to pre-empt the possibility of a strike and thus leave the union with 'nothing to strike against.' Insofar as this means that once employees are locked out, they are deprived of their right to call a strike against the employer because he is already shut down, the argument is wholly specious, for the work stoppage which would have been the object of the strike has in fact occurred.10 It is true that recognition of the lockout deprives the union of exclusive control of the timing and duration of work stoppages calculated to influence the result of collective bargaining negotiations, but there is nothing in the statute which would imply that the right to strike 'carries with it' the right exclusively to determine the timing and duration of all work stoppages. The right to strike as commonly understood is the right to cease work—nothing more. No doubt a union's bargaining power would be enhanced if it possessed not only the simple right to strike but also the power exclusively to determine when work stoppages should occur, but the Act's provisions are not indefinitely elastic, content-free forms to be shaped in whatever manner the Board might think best conforms to the proper balance of bargaining power.
17
Thus, we cannot see that the employer's use of a lockout solely in support of a legitimate bargaining position is in any way inconsistent with the right to bargain collectively or with the right to strike. Accordingly, we conclude that on the basis of the findings made by the Board in this case, there has been no violation of § 8(a)(1).
18
Section 8(a)(3) prohibits discrimination in regard to tenure or other conditions of employment to discourage union membership. Under the words of the statute there must be both discrimination and a resulting discouragement of union membership. It has long been established that a finding of violation under this section will normally turn on the employer's motivation. See National Labor Relations Board v. Brown, 380 U.S. 278, 85 S.Ct. 980; Radio Officers' Union v. National Labor Relations Board, 347 U.S. 17, 43, 74 S.Ct. 323, 337, 98 L.Ed. 455; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 46, 57 S.Ct. 615, 628, 81 L.Ed. 893. Thus when the employer discharges a union leader who has broken shop rules, the problem posed is to determine whether the employer has acted purely in disinterested defense of shop discipline or has sought to damage employee organization. It is likely that the discharge will naturally tend to discourage union membership in both cases, because of the loss of union leadership and the employees' suspicion of the employer's true intention. But we have consistently construed the section to leave unscathed a wide range of employer actions taken to serve legitimate business interests in some significant fashion, even though the act committed may tend to discourage union membership. See, e.g., National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 347, 58 S.Ct. 904, 911, 82 L.Ed. 1381. Such a construction of § 8(a)(3) is essential if due protection is to be accorded the employer's right to manage his enterprise. See Textile Workers' Union v. Darlington Mfg. Co., 380 U.S. 263, 85 S.Ct. 994.
19
This is not to deny that there are some practices which are inherently so prejudicial to union interests and so devoid of significant economic justification that no specific evidence of intent to discourage union membership or other antiunion animus is required. In some cases, it may be that the employer's conduct carries with it an inference of unlawful intention so compelling that it is justifiable to disbelieve the employer's protestations of innocent purpose. Radio Officers' Union v. National Labor Relations Board, supra, 347 U.S. at 44—45, 74 S.Ct. at 337—338; National Labor Relations Board v. Erie Resistor Corp., supra. Thus where many have broken a shop rule, but only union leaders have been discharged, the Board need not listen too long to the plea that shop discipline was simply being enforced. In other situations, we have described the process as the 'far more delicate task * * * of weighing the interests of employees in concerted activity against the interest of the employer in operating his business in a particular manner * * *.' National Labor Relations Board v. Erie Resistor Corp., supra, 373 U.S. at 229, 83 S.Ct. at 1145.
20
But this lockout does not fall into that category of cases arising under § 8(a)(3) in which the Board may truncate its inquiry into employer motivation. As this case well shows, use of the lockout does not carry with it any necessary implication that the employer acted to discourage union membership or otherwise discriminate against union members as such. The purpose and effect of the lockout were only to bring pressure upon the union to modify its demands. Similarly, it does not appear that the natural tendency of the lockout is severely to discourage union membership while serving no significant employer interest. In fact, it is difficult to understand what tendency to discourage union membership or otherwise discriminate against union members was perceived by the Board. There is no claim that the employer locked out only union members, or locked out any employee simply because he was a union member; nor is it alleged that the employer conditioned rehiring upon resignation from the union. It is true that the employees suffered economic disadvantage because of their union's insistence on demands unacceptable to the employer, but this is also true of many steps which an employer may take during a bargaining conflict, and the existence of an arguable possibility that someone may feel himself discouraged in his union membership or discriminated against by reason of that membership cannot suffice to label them violations of § 8(a) (3) absent some unlawful intention. The employer's permanent replacement of strikers (National Labor Relations Board v. Mackay Radio & Telegraph Co., supra), his unilateral imposition of terms (National Labor Relations Board v. Tex-Tan, Inc., 5 Cir., 318 F.2d 472, 479—482), or his simple refusal to make a concession which would terminate a strike—all impose economic disadvantage during a bargaining conflict, but none is necessarily a violation of § 8(a)(3).
21
To find a violation of § 8(a)(3), then, the Board must find that the employer acted for a proscribed purpose. Indeed, the Board itself has always recognized that certain 'operative' or 'economic' purposes would justify a lockout. But the Board has erred in ruling that only these purposes will remove a lockout from the ambit of § 8(a)(3), for that section requires an intention to discourage union membership or otherwise discriminate against the union. There was not the slightest evidence and there was no finding that the employer was actuated by a desire to discourage membership in the union as distinguished from a desire to affect the outcome of the particular negotiations in which it was involved. We recognize that the 'union membership' which is not to be discouraged refers to more than the payment of dues and that measures taken to discourage participation in protected union activities may be found to come within the proscription. Radio Officers' Union v. National Labor Relations Board, supra, 347 U.S. at 39—40, 74 S.Ct. at 335. However, there is nothing in the Act which gives employees the right to insist on their contract demands, free from the sort of economic disadvantage which frequently attends bargaining disputes. Therefore, we conclude that where the intention proven is merely to bring about a settlement of a labor dispute on favorable terms, no violation of § 8(a)(3) is shown.
22
The conclusions which we draw from analysis of §§ 8(a)(1) and (3) are consonant with what little of relevance can be drawn from the balance of the statute and its legislative history. In the original version of the Act, the predecessor of § 8(a)(1) declared it an unfair labor practice '(t)o attempt, by interference, influence, restraint, favor, coercion, or lockout, or by any other means, to impair the right of employees guaranteed in section 4.'11 Prominent in the criticism leveled at the bill in the Senate Committee hearings was the charge that it did not accord even-handed treatment to employers and employees because it prohibited the lockout while protecting the strike.12 In the face of such criticism, the Committee added a provision prohibiting employee interference with employer bargaining activities13 and deleted the reference to the lockout.14 A plausible inference to be drawn from this history is that the language was deleted to mollify those who saw in the bill an inequitable denial of resort to the lockout, and to remove any language which might give rise to fears that the lockout was being proscribed per se. It is in any event clear that the Committee was concerned with the status of the lockout and that the bill, as reported and as finally enacted, contained no prohibition on the use of the lockout as such.
23
Although neither § 8(a)(1) nor § 8(a)(3) refers specifically to the lockout, various other provisions of the National Labor Relations Act do refer to the lockout, and these references can be interpreted as a recognition of the legitimacy of the device as a means of applying economic pressure in support of bargaining positions. Thus 29 U.S.C. § 158(d)(4) (1958 ed.) prohibits the use of a strike or lockout unless requisite notice procedures have been complied with; 29 U.S.C. § 173(c) (1958 ed.) directs the Federal Mediation and Conciliation Service to seek voluntary resolution of labor disputes without resort to strikes or lockouts; and 29 U.S.C. §§ 176, 178 (1958 ed.) authorize procedures whereby the President can institute a board of inquiry to forestall certain strikes or lockouts. The correlative use of the terms 'strike' and 'lockout' in these sections contemplates that lockouts will be used in the bargaining process in some fashion. This is not to say that these provisions serve to define the permissible scope of a lockout by an employer. That, in the context of the present case, is a question ultimately to be resolved by analysis of §§ 8(a)(1) and (3).
24
The Board has justified its ruling in this case and its general approach to the legality of lockouts on the basis of its special competence to weigh the competing interests of employers and employees and to accommodate these interests according to its expert judgment. 'The Board has reasonably concluded that the availability of such a weapon would so substantially tip the scales in the employer's favor as to defeat the Congressional purpose of placing employees on a par with their adversary at the bargaining table.'15 To buttress its decision as to the balance struck in this particular case, the Board points out that the employer has been given other weapons to counterbalance the employees' power of strike. The employer may permanently replace workers who have gone out on strike, or, by stockpiling and subcontracting, maintain his commercial operations while the strikers bear the economic brunt of the work stoppage. Similarly, the employer can institute unilaterally the working conditions which he desires once his contract with the union has expired. Given these economic weapons, it is argued, the employer has been adequately equipped with tools of economic self-help.
25
There is of course no question that the Board is entitled to the greatest deference in recognition of its special competence in dealing with labor problems. In many areas its evaluation of the competing interests of employer and employee should unquestionably be given conclusive effect in determining the application of §§ 8(a)(1), (3), and (5). However, we think that the Board construes its functions too expansively when it claims general authority to define national labor policy by balancing the competing interests of labor and management.
26
While a primary purpose of the National Labor Relations Act was to redress the perceived imbalance of economic power between labor and management, it sought to accomplish that result by conferring certain affirmative rights on employees and by placing certain enumerated restrictions on the activities of employers. The Act prohibited acts which interfered with, restrained, or coerced employees in the exercise of their rights to organize a union, to bargain collectively, and to strike; it proscribed discrimination in regard to tenure and other conditions of employment to discourage membership in any labor organization. The central purpose of these provisions was to protect employee self-organization and the process of collective bargaining from disruptive interferences by employers. Having protected employee organization in countervailance to the employers' bargaining power, and having established a system of collective bargaining whereby the newly coequal adversaries might resolve their disputes, the Act also contemplated resort to economic weapons should more peaceful measures not avail. Sections 8(a)(1) and (3) do not give the Board a general authority to assess the relative economic power of the adversaries in the bargaining process and to deny weapons to one party or the other because of its assessment of that party's bargaining power. National Labor Relations Board v. Brown, 380 U.S. 278, 85 S.Ct. 980. In this case the Board has, in essence, denied the use of the bargaining lockout to the employer because of its conviction that use of this device would give the employer 'too much power.' In so doing, the Board has stretched §§ 8(a)(1) and (3) far beyond their functions of protecting the rights of employee organization and collective bargaining. What we have recently said in a closely related context is equally applicable here:
27
'(W)hen the Board moves in this area * * * it is functioning as an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands. It has sought to introduce some standard of properly 'balanced' bargaining power, or some new distinction of justifiable and unjustifiable, proper and 'abusive' economic weapons into * * * the Act. * * * We have expressed our belief that this amounts to the Board's entrance into the substantive aspects of the bargaining process to an extent Congress has not countenanced.' National Labor Relations Board v. Insurance Agents' International Union, 361 U.S. 477, 497—498, 80 S.Ct. 419, 431.
28
We are unable to find that any fair construction of the provisions relied on by the Board in this case can support its finding of an unfair labor practice. Indeed, the role assumed by the Board in this area is fundamentally inconsistent with the structure of the Act and the function of the sections relied upon. The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress. Accordingly, we hold that an employer violates neither § 8(a)(1) nor § 8(a)(3) when, after a bargaining impasse has been reached, he temporarily shuts down his plant and lays off his employees for the sole purpose of bringing economic pressure to bear in support of his legitimate bargaining position.
29
Reversed.
30
Mr. Justice WHITE, concurring in the result.
31
The Court today holds that the use of economic weapons by an employer for the purpose of improving his bargaining position can never violate the broad provisions of §§ 8(a)(1) and (3) of the NLRA and hence a bargaining lockout of employees in resistance to demands of a union is invariably exempt from the proscriptions of the Act. As my Brother GOLDBERG well points out, the Court applies legal standards that cannot be reconciled with decisions of this Court defining the Board's functions in applying these sections of the Act and does so without pausing to ascertain if the Board's factual premises are supported by substantial evidence. I also think the Court, in the process of establishing the legality of a bargaining lockout, overlooks the uncontradicted facts in this record and the accepted findings of the trial examiner which indicate to me that the employer's closing of the Chicago yard was not a 'lockout' for the purpose of bringing economic pressure to break an impasse and to secure more favorable contract terms.
32
In my view the issue posed in this case is whether an employer who in fact anticipates a strike may inform customers of this belief to protect his commercial relationship with customers and to safeguard their property thereby discouraging business, and then lay off employees for whom there is no available work. I, like the trial examiner, think he may, and do not think this conduct can be impeached under §§ 8(a)(1) and (3) by merely asserting that the employer and his customers were erroneous in believing a strike was imminent.
33
The Board, the Court of Appeals, and presumably this Court, accept all the findings of the trial examiner, except the finding that the employer's honest belief that a strike would occur had a reasonable basis in fact. The examiner found that at the time of the layoffs at the Chicago yard there was no work there and very little at the other yards, which remained open until all available work was completed. During past slack summer seasons a nucleus crew had been retained at the yards to perform emergency repair jobs for Ship Building's 14 or 15 regular customers. Absent a job, these employees also did maintenance work, but the accommodation of these regular customers and retention of their good will was the only reason for remaining open, the operations being otherwise unprofitable. The customers learned of the labor unrest at the yards through newspaper accounts and Ship Building's plant managers, who felt constrained to tell longstanding customers of the possibility of a strike during the course of repair work. The manager of the Buffalo yard was of the opinion that 'the owner that brought the boat into the dock would have rocks in his head if he would have taken the chance.' Work was not refused, however. There were few, if any, requests for repairs during that summer, a substantial number of shipowners being reluctant to bring their vessels into the yard. The last job left the Chicago yard three weeks before closing. The examiner found that at the time of closing, Ship Building had 'men working on maintenance in the yards, with no work on hand, none anticipated, and customers refusing to send work in.' Only those workers for whom there was no work were laid off and no new jobs were taken on. The examiner noted that the employer was not unaware of the union's negotiating strategy and of the possible effect of a closing on this strategy. But in carefully assessing all the testimony he found that at most these considerations partially colored the employer's motivation. The examiner concluded from these facts that 'the economic inducements so overshadowed anything improper that they must be considered primary, particularly when the economic factors which supported them arose through no fault of Respondent and anteceded the layoff.'
34
Given the finding that the closing was due to lack of work at the Chicago yard, it is no answer to say, as the Board does, that there was no reasonable basis to anticipate a strike and hence the closing was an offensive bargaining lockout. Whether there was a reasonable basis to fear a strike or not, the fact remains that the employer, and its customers, did fear a strike, and consequently there was no work for the employees. It has long been the law that an employer is free to modify or shut down operations temporarily for business reasons unrelated to the exercise by his employees of statutory rights, and the reasonableness of an employer's response to business exigencies is not ordinarily subject to review. See Pepsi-Cola Bottling Co., 145 N.L.R.B. 785 (1964); Associated General Contractors of America, Inc., 105 N.L.R.B. 767 (1953); cf. Fibreboard Paper Products Corp. v. National Labor Relations Board, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233; Textile Workers' Union v. Darlington Mfg. Co., 380 U.S. 263, 85 S.Ct. 994. There is nothing in the decisions of the NLRB, including this case, which would indicate that there are occasions when an employer may not truthfully inform his customers of a labor dispute and his fear of a strike to protect his business and their property and may not lay off employees for lack of work. Indeed, these decisions hold that an employer may shut down in response to such economic conditions, even though these conditions are the result of protected concerted activities, Pepsi-Cola Bottling Co., 145 N.L.R.B. 785 (1964); Associated General Contractors of America, Inc., 105 N.L.R.B. 767 (1953); H. H. Zimmerli, 133 N.L.R.B. 1217 (1961), so long as the creation of or alleged reliance on these conditions is not a subterfuge for a lockout, Ripley Mfg. Co., 138 N.L.R.B. 1452 (1962); Savoy Laundry, Inc., 137 N.L.R.B. 306 (1962); New England Web, Inc., 135 N.L.R.B. 1019 (1962). There is no evidence here that the lack of work was a result of the employer's decision or desire to lay off its employees and the Board did not so find. I do not now determine whether a temporary economic shutdown could ever be found to violate the Act. Here the Board has given no reasons, no rationale, to show how this closing violated the Act, except to say the closing was a bargaining lockout. A lockout is the refusal by an employer to furnish available work to his regular employees. It is apparent that the considerations which fault an employer for refusing to furnish available work are quite different from those which would prohibit him from laying off workers for whom there is no work. Hence, reliance on the Board's lockout cases does not explain, no less support, the result reached in this case. The compelling conclusion is that the Board has failed to 'disclose the basis of its order' and to '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. This is not to say the Board has reached an erroneous balance in regard to the bargaining lockout; it is to say that the bargaining lockout analysis will not suffice to judge the legality of the layoffs in this case.
35
The Court, like the Board, assimilates the employer's conduct here to the bargaining lockout and restrikes the balance; it dismisses the actual justification for the closing with the assertion that the 'examiner found * * * (the) closing was not due to lack of work. Despite similarly slack seasons in the past, the employer had for 17 years retained a nucleus crew to do maintenance work and remain ready to take such work as might come in.' Ante, at p. 304. This is puzzling, since the examiner found precisely the contrary, and neither the Board nor the Court of Appeals took issue with these findings. The examiner said that a nucleus crew was maintained in the past only in the expectation of emergency work, the performance of such work being thought necessary to maintain customer good will. Because of the labor uncertainty and the decision that undertaking emergency jobs would jeopardize customer relations, there was no expectation of work during the summer of 1961, unlike past years. Since I think an employer's decision to lay off employees because of lack of work is not ordinarily barred by the Act, and since neither the Board nor the Court properly can ignore this claim, I would reverse the Board's order, but without reaching out to decide an issue not at all presented by this case.
36
Since the Court does rule on the status of the bargaining lockout under the National Labor Relations Act, I feel constrained to state my views. This Court has long recognized that the Labor Relations Act 'did not undertake the imposible task of specifying in precise and unmistakable language each incident which would constitute an unfair labor practice,' but 'left to the Board the work of applying the Act's general prohibitory language in the light of the infinite combinations of events which might be charged as violative of its terms.' Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 798, 65 S.Ct. 982, 985, 89 L.Ed. 1372. Thus the legal status of the bargaining lockout, as the Court indicated in National Labor Relations Board v. Truck Drivers Union, etc., 353 U.S. 87, 96, 77 S.Ct. 643, 648, 1 L.Ed.2d 676, is to be determined by 'the balancing of the conflicting legitimate interests.'
37
The Board has balanced these interests here—the value of the lockout as an economic weapon against its impact on protected concerted activities, including the right to strike, for which the Act has special solicitude, National Labor Relations Board v. Erie Resistor Corp., 373 U.S. 221, 234, 83 S.Ct. 1139, 1148, 10 L.Ed.2d 308—and has determined that the employer's interest in obtaining a bargaining victory does not outweigh the damaging consequences of the lockout. It determined that for an employer to deprive employees of their livelihood because of demands made by their representatives and in order to compel submission to the employer's demands, coerces employees in their exercise of the right to bargain collectively and discourages resort to that right. And this interferes with the right to strike, sharply reducing the effectiveness of that weapon and denying the union control over the timing of the economic contest. The Court rejects this reasoning on the ground that the lockout is not conduct 'demonstrably so destructive of collective bargaining that the Board need not inquire into employer motivation.' Ante, at p. 309. Since the employer's true motive is to bring about settlement of the dispute on favorable terms, there can be no substantial discouragement of union membership or interference with concerted activities. And the right to strike is only the right to cease work, which the lockout only encourages rather than displaces.
38
This tour de force denies the Board's assessment of the impact on employee rights and this truncated definition of the right to strike, nowhere supported in the Act, is unprecedented. Until today the employer's true motive or sole purpose has not always been determinative of the impact on employee rights. Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372; Radio Officers' Union v. National Labor Relations Board, 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455; National Labor Relations Board v. Truck Drivers Union, etc., 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676; National Labor Relations Board v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308; National Labor Relations Board v. Burnup & Sims, Inc., 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1. The importance of the employer's right to hire replacements to continue operations, or of his right to fire employees he has good reason to believe are guilty of gross misconduct was not doubted in Erie Resistor and Burnup & Sims. Nonetheless the Board was upheld in its determination that the award of super-seniority to strike replacements and discharge of the suspected employee were unfair labor practices. Of course, such conduct is taken in the pursuit of legitimate business ends, but nonetheless the 'conduct does speak for itself. * * * (i)t carries with it unavoidable consequences which the employer not only foresaw but which he must have intended.' Erie Resistor, 373 U.S., at 228, 83 S.Ct., at 1145. I would have thought it apparent that loss of jobs for an indefinite period, and the threatened loss of jobs, which the Court's decision assuredly sanctions, cf. Textile Workers' Union v. Darlington Mfg. Co., 380 U.S., at 274, 85 S.Ct., at 1001, n. 20, because of the union's negotiating activity, itself protected conduct under § 7, hardly encourage affiliation with a union.
39
If the Court means what it says today, an employer may not only lock out after impasse consistent with §§ 8(a)(1) and (3), but replace his locked-out employees with temporary help, cf. National Labor Relations Board v. Brown, 380 U.S. 278, 85 S.Ct. 980, or perhaps permanent replacements, and also lock out long before an impasse is reached. Maintaining operations during a labor dispute is at least equally as important an interest as achieving a bargaining victory, see National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381, and a shutdown during or before negotiations advances an employer's bargaining position as much as a lockout after impasse. And the hiring of replacements is wholly consistent with the employer's intent 'to resist the demands made of it in the negotiations and to secure modification of these demands.' Ante, at p. 309. I would also assume that under §§ 8(a)(1) and (3) he may lock out for the sole purpose of resisting the union's assertion of grievances under a collective bargaining contract, absent a no-lockout clause. Given these legitimate business purposes, there is no antiunion motivation, and absent such motivation, a lockout cannot be deemed destructive of employee rights. '(I)nquiry into employer motivation' may not be truncated. Ante, at p. 312. 'Proper analysis of the problem demands that the simple intention to support the employer's bargaining position as to compensation and the like be distinguished from a hostility to the process of collective bargaining which could suffice to render a lockout unlawful.' Ante, at p. 309. I think that the Board may assess the impact of a bargaining lockout on protected employee rights, without regard to motivation, and that the Court errs in failing to give due consideration to the Board's conclusions in this regard.
40
The balance and accommodation of 'conflicting legitimate interests' in labor relations does not admit of a simple solution and a myopic focus on the true intent or motive of the employer has not been the determinative standard of the Board or this Court. As the Court points out, there are things an employer may do for business reasons which are inconsistent with a rigid or literal interpretation of employee rights under the Act, such as the right to hire strike replacements. National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381. But there are just as clearly others which he may not. Republic Aviation, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372; Erie Resistor, 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308; Burnup & Sims, 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1. A literal interpretation will not suffice to reconcile these cases, nor to justify the result in the present case. For in saying an employer may lock out all his employees, the Court fully ignores the most explicit statutory right of employees 'to refrain from any or all (concerted) activities.' Nor can these cases be explained by the Court's test that employer conduct is not proscribed unless it is 'inherently so prejudicial to union interests and so devoid of significant economic justification,' ante, at p. 311, that true motivation need not be independently shown. The test is clearly one of choosing among several motivations or purposes and weighing the respective interests of employers and employees. And I think that is the standard the Court applies to the bargaining lockout in this case, but without heeding the fact the balance is for the Board to strike in the first instance.
41
The Board's role in this area is a 'delicate task, reflected in part in decisions of this Court, of weighing the interests of employees in concerted activity against the interest of the employer in operating his business in a particular manner.' Erie Resistor, 373 U.S., at 229, 83 S.Ct., at 1145. Its decisions are not immune from attack in this Court. Its findings must be supported by substantial evidence and its explication must fit the case before it, be adequate, and be based upon the policy of the Act and an acceptable reading of industrial realities. I would reverse the Board's decision here because it has not articulated a rational connection between the facts found and the decision made. '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.' Burlington Truck Lines v. United States, 371 U.S. 156, 169, 83 S.Ct. 239, 246, 9 L.Ed.2d 207. It is to ask the Board to show that it has exercised the discretion which it has under the Act. Such insistence on a reasoned decision is a foremost function of judicial review, especially where conflicting significant interests are sought to be accommodated. Compare Securities & Exchange Comm. v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626, with Securities & Exchange Comm. v. Chenery Corp., 332 U.S. 194, 197, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995. But this function is not to reject the Board's reasoned assessment of the impact of a particular economic weapon on employee rights. It is certainly not to restrike the balance which the Board has reached.
42
Mr. Justice GOLDBERG, with whom THE CHIEF JUSTICE joins, concurring in the result.
43
I concur in the Court's conclusion that the employer's lockout in this case was not a violation of either § 8(a)(1) or § 8(a)(3) of the National Labor Relations Act, 49 Stat. 453, as amended, 29 U.S.C. §§ 158(a)(1) and (3) (1958 ed.), and I therefore join in the judgment reversing the Court of Appeals. I reach this result not for the Court's reasons, but because, from the plain facts revealed by the record, it is crystal clear that the employer's lockout here was justifiable. The very facts recited by the Court in its opinion show that this employer locked out its employees in the face of a threatened strike under circumstances where, had the choice of timing been left solely to the unions, the employer and its customers would have been subject to economic injury over and beyond the loss of business normally incident to a strike upon the termination of the collective bargaining agreement. A lockout under these circumstances has been recognized by the Board itself to be justifiable and not a violation of the labor statutes. Betts Cadillac Olds, Inc., 96 N.L.R.B. 268; see Packard Bell Electronics Corp., 130 N.L.R.B. 1122; International Shoe Co., 93 N.L.R.B. 907; Duluth Bottling Assn., 48 N.L.R.B. 1335; Quaker State Oil Refining Corp., 121 N.L.R.B. 334, 337.
44
The trial examiner for the Labor Board found that the employer reasonably and 'honestly believed that a strike might take place immediately, or when a vessel was docked, or that bargaining would be delayed until closer to the winter months when Respondent would be more vulnerable,' 142 N.L.R.B., at 1382, and that the company 'by its actions, therefore, did not violate * * * the Act,' 142 N.L.R.B., at 1383. The Board did not dispute the trial examiner's finding that the employer in fact believed that a strike was threatened. Nor did it deny that if the employer reasonably believed that 'there was a real strike threat,' the lockout would be justified. 142 N.L.R.B., at 1364. The Board, however, rejected the ultimate finding of the trial examiner because it disagreed with his conclusion that the employer 'had reasonable grounds to fear a strike.' (Emphasis added.) 142 N.L.R.B., at 1363. The Court of Appeals in a single sentence sustained the Board's holding on this point concluding, without detailed analysis, 'that the Board's finding that respondent had no reasonable basis for fearing a strike is not without the requisite record support.' 331 F.2d 839, 840. In my view the Board's conclusion that the employer's admitted fear of a strike was unreasonable is not only without the requisite record support but is at complete variance with 'the actualities of industrial relations,' National Labor Relations Board v. United Steelworkers, 357 U.S. 357, 364, 78 S.Ct. 1268, 1272, 2 L.Ed.2d 1383, which the Board is to take into account in effectuating the national labor policy.
45
We do not deal with a case in which the facts are disputed and the Board has resolved testimonial controversies. The facts here are undisputed, and a review of them demonstrates that the employer's fear of a strike at a time strategically selected by the unions to cause it maximum damage and to give the unions the maximum economic advantage was totally reasonable.
46
The employer company is primarily engaged in repairing ships and operates four shipyards on the Great Lakes at Buffalo, New York, Lorain and Toledo, Ohio, and South Chicago, Illinois. As the Court points out, the employer's business is highly seasonal, concentrated in the winter months when the Great Lakes are frozen over and shipping is impossible. Speed is of the utmost importance in this business, for the shipping season is short and the tie-up of a ship for several weeks during the season or a delay in a ship's re-entry into service in the spring produces a severe economic impact. A work stoppage while a ship is in the yards can have serious economic consequences both for the employer and for his customers. Customers are justifiably wary of entrusting their ships to the yards at a time when a collective bargaining dispute is unresolved. For this reason the expiration date of a contract in situations such as this is a vital issue in collective bargaining. The employer seeks an expiration date during the slack season; the union seeks an expiration date during the busy season. In this case is a result of past bargaining, the employer's contract expired on August 1, rather than during the busy season.
47
From 1952 until 1961, when the negotiations now under consideration began, the employer had negotiated five times with the eight unions here involved, and it had experienced exactly one strike per negotiation. The strikes in 1952, 1953, 1955, and 1956 lasted about three weeks each, and the 1958 strike continued for 10 weeks. In 1955 employees had engaged in a showdown before the agreement expired and thereby caught an $8,000,000 ship in the yard, the use of which was lost to the customer for four weeks during its busiest season. In February 1961, at the height of the busy season, wildcat work stoppages occurred in Chicago and Buffalo.
48
Shortly before May 1961 the unions notified the employer that they wished to modify the contract due to expire on August 1. At the first bargaining meeting on June 6, 1961, the employer spokesman maintained that competitive conditions prevented any increase in wages or benefits. The unions took an opposite view and asked for a substantial increase in pension and other benefits. The parties met on numerous occasions throughout June and July. As the negotiations progressed, the employer receded from its original position and offered improved wages and benefits; the unions receded from some of their demands, but a meeting of the minds was not reached. On July 20 and subsequently, with the August 1 expiration date approaching, the unions proposed a six-month extension of the current contract. This would have given the unions an expiration date at a time most advantageous to them; the employer rejected this proposal on the grounds that the contract would then expire on February 1, 1962, the very height of its busy season, and that no customer would risk its ships by putting them in the company's yards knowing that the labor contract was about to expire. On July 28 the unions' negotiator informed the employer that the union members had voted 'overwhelmingly to take a strike if necessary.' On July 31 the employer made a new and increased offer on wages and benefits, asked that its proposals be submitted to the employees for a vote and offered to extend the contract for the limited period sufficient to enable this vote to be taken. The unions in turn asked that the labor agreement be extended indefinitely until a new agreement was reached. The employer refused to agree to an indefinite extension of its present contract on the ground that it could then be struck at any time of the unions' choosing.1
49
Although the contract expired on August 1, the unions did not call a strike on that date but continued to work on a day-to-day basis and submitted the employer's revised offer to a vote of the membership. On August 8 the unions informed the employer that its proposals had been 'overwhelmingly' rejected by the employees. On August 9 the employer made a new package offer on many issues. The union negotiators rejected this new offer, refused to take it to the employees for a vote, and made no counteroffer. Negotiations were broken off without any definite plans for further meetings between the parties. Future meetings were left to the call of a federal mediator.
50
Faced with the situation of an expired contract and the unions free to strike at any time, in particular at a time of their own choosing during the busy season, or whenever the yard was filled with ships, the employer decided to shut down the Chicago yard completely and lay off all but two employees at Toledo. Notices were issued to employees at Chicago, Toledo, and to some in Buffalo, which stated, 'Because of the labor dispute which has been unresolved since August 1, 1961, you are laid off until further notice.' Negotiations were resumed after this lockout and continued until agreement was reached on October 27. The laid off employees were then recalled to work. Since then the parties have engaged in other negotiations and have agreed upon contracts without either strike or lockout.
51
On this record the trial examiner held that the employer reasonably feared that the unions would strike when the time was ripe. He found that the employer reasonably believed that:
52
'(t)he Unions' strategy was:
53
'Keep working at Lorain, keep the nonproductive men on the payroll as long as possible at the other yards until one of two things occurred: (a) A shipowner would send a ship into one of the yards, and then by striking, the Respondent would be forced to his knees in effecting a labor settlement satisfactory to the Union, and if this didn't occur, then, (b) continue to bargain, into the winter months, and then execute an agreement effective in November, December, January, or February, and in this way, when the agreement was reopened, Respondent would be sure to have ships in its docks, and a strike at such a time would bring the Respondent to his knees in effecting an agreement.' 142 N.L.R.B., at 1381.
54
Accordingly the trial examiner held that no unfair labor practice was committed. This holding followed settled Board doctrine that 'lockouts are permissible to safeguard against unusual operational problems or hazards or economic loss where there is reasonable ground for believing that a strike (is) * * * threatened or imminent.' Quaker State Oil Refining Corp., supra, at 337.
55
The Board overturned the trial examiner's ultimate holding, reaching what, on this record, is a totally unsupportable conclusion—that the employer's fear of a strike was unreasonable. The Board rested its conclusion upon the grounds that 'the Unions made every effort to convey to the Respondent their intention not to strike; and they also gave assurances that if a strike were called, any work brought into Respondent's yard before the strike would be completed. The Unions further offered to extend the existing contract (which contained a no-strike provision) for 6 months, or indefinitely, until contract terms were reached * * *.' 142 N.L.R.B., at 1364. Upon analysis it is clear that none of these grounds will support the Board's conclusion that the employer had no reasonable basis to fear a strike.
56
The Board's finding that 'the Unions made every effort to convey to the Respondent their intention not to strike' is based upon statements made by union negotiators during the course of the negotiations. The chief negotiator for the unions testified that on the first day of negotiations, 'I stated that it was my understanding that in the past there seemed to have been a strike at every—during every negotiation since World War II from information I had received, and it was our sincere hope that we could negotiate this agreement—go through those negotiations and negotiate a new agreement without any strife, that personally I always had a strong dislike to strike and that I thought if two parties sincerely desired to reach an agreement, one could be reached without strike. The Company * * * stated that the Company concurred in those thoughts, that they too disliked strikes, and it was their hope, also, that an agreement could be reached amicably.'2 The negotiators for the unions expressed this same sentiment on several other occasions during the negotiations.
57
These statements, which one would normally expect a union agent to make during the course of negotiations as a hopeful augury of their outcome rather than as a binding agreement not to strike, scarcely vitiate the reasonableness of the employer's fear of a strike in light of the long history of past strikes by the same unions. Further, they cannot be deemed to render the employer's fear of a strike unreasonable after the negotiations had reached an impasse, particularly in view of the fact that a strike vote had been taken by the unions' membership, and the membership rather than the union representatives had final authority to determine whether a strike would take place.
58
The fact that the assistant business managers of Local 85 and Local 374 of the Boilermakers Union 'gave assurances that if a strike were called, any work brought into Respondent's yard before the strike would be completed'3 likewise cannot be deemed to offset the unions' threat of a strike and its consequences. These men were officials of locals in only one of the eight separate unions involved. At most they could give assurances as to a few of the men at two of the company's four yards. And even had all of the unions joined in these statements, which was not the case, the employer had been subject to wildcat strikes at a time when the unions were bound by a no-strike clause in their contract. Therefore, without impugning the good faith of these union agents, it surely was not unreasonable for the employer, notwithstanding this assurance, to fear that its employees might not complete work on ships when they were not bound by a no-strike clause.
59
The Board also relies on the fact that the unions offered a six-month extension of the present contract. As I have already pointed out, this would have caused the contract to expire during the employer's busiest season. The employer had a perfect right to reject this stratagem. Had it agreed, the unions would have achieved one of their important objectives without the necessity of striking. By the same token it is clear that the unions would have agreed not to strike had the employer accepted their proposals for increases in wages and benefits. Surely the employer had every right to reject these proposals, and its rejection of them would not show that it was unreasonable in fearing a strike based upon its failure to accede to the unions' demands.
60
Finally, the offer of an indefinite extension of the contract is an equally unsupportable basis for the Board's conclusion. An indefinite extension presumably would mean under traditional contract theory that the unions could strike at any time or after giving brief notice.4 Surely the employer would be reasonable in fearing that such an arrangement would peculiarly place the timing of the strike in the unions' hands.
61
The sum of all this is that the record does not supply even a scintilla of, let alone any substantial, evidence to support the conclusion of the Board that the employer's fear of a strike was unreasonable, but, rather, this conclusion appears irrational. Cf. National Labor Relations Board v. Erie Resistor Corp., 373 U.S. 221, at 236, 83 S.Ct. 1139, at 1149, 10 L.Ed.2d 308. I would therefore hold on this record that the employer's lockout was completely justified.
62
The fact that the Board held on the undisputed facts that the employer's fear of a strike was unreasonable and that the Court of Appeals has affirmed the Board does not preclude us from reviewing this determination. See Public Service Comm. v. United States, 356 U.S. 421, 78 S.Ct. 796, 2 L.Ed.2d 886. The standard that should have been applied by the Court of Appeals was whether the Board's finding was supported by substantial evidence when the record was viewed as a whole. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. See Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245, 9 L.Ed.2d 207; Interstate Commerce Comm. v. J—T Transport Co., 368 U.S. 81, 93, 82 S.Ct. 204, 211, 7 L.Ed.2d 147. 'The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.' Universal Camera Corp. v. National Labor Relations Board, supra, 340 U.S., at 490, 71 S.Ct., at 466. Indeed, the Board here set aside the report of its trial examiner, and in Universal Camera this Court recognized 'that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board's than when he has reached the same conclusion.' 340 U.S., at 496, 71 S.Ct., at 469. The Court of Appeals in my view in its summary affirmance on this issue grossly misapplied the standards laid down by Universal Camera. This case is properly before us on a substantial legal question, which necessarily involves a review of the entire record. In making such a review, although we give proper weight to what the first reviewing court decides, we cannot ignore our duty to apply the statutory standard that the Board's findings must be supported by substantial evidence. Since the Board's holding was not so supported, but, on the contrary, as the plain facts of the record reveal, was irrational, I would reverse the Court of Appeals on this ground.
63
My view of this case would make it unnecessary to deal with the broad question of whether an employer may lock out his employees solely to bring economic pressure to bear in support of his bargaining position. The question of which types of lockout are compatible with the labor statute is a complex one as this decision and the other cases decided today illustrate. See Textile Workers Union v. Darlington Mfg. Co., 380 U.S. 263, 85 S.Ct. 994; National Labor Relations Board v. Brown, 380 U.S. 278, 85 S.Ct. 980. This Court has said that the problem of the legality of certain types of strike activity must be 'revealed by unfolding variant situations' and requires 'an evolutionary process for its rational response, not a quick, definitive formula as a comprehensive answer.' Local 761, Intern. Union of Electrical, etc., Workers v. National Labor Relations Board, 366 U.S. 667, 674, 81 S.Ct. 1285, 1290, 6 L.Ed.2d 592; see also National Labor Relations Board v. United Steelworkers, supra, 357 U.S. 362—363, 78 S.Ct. 1271. The same is true of lockouts.
64
The types of situation in which an employer might seek to lock out his employees differ considerably one from the other. This case presents the situation of an employer with a long history of union recognition and collective bargaining, confronted with a history of past strikes, which locks out only after considerable good-faith negotiation involving agreement and compromise on numerous issues after a bargaining impasse has been reached, more than a week after the prior contract has expired, and when faced with the threat of a strike at a time when it and the property of its customers can suffer unusual harm. Other cases in which the Board has held a lockout illegal have presented far different situations. For example, in Quaker State Oil Refining Corp., supra, an employer locked out its employees the day after its contract with the union expired although no impasse has been reached in the bargaining still in progress, no strike had been threatened by the unions, which had never called a sudden strike during the 13 years they had bargained with the employer, and the unions had offered to resubmit the employer's proposals to its employees for a vote. See also Utah Plumbing & Heating Contractors Assn., 126 N.L.R.B. 973. These decisions of the Labor Board properly take into account, in determining the legality of lockouts under the labor statutes, such factors as the length, character, and history of the collective bargaining relation between the union and the employer, as well as whether a bargaining impasse has been reached. Indeed, the Court itself seems to recognize that there is a difference between locking out before a bargaining impasse has been reached and locking out after collective bargaining has been exhausted, for it limits its holding to lockouts in the latter type of situation without deciding the question of the legality of locking out before bargaining is exhausted. Since the examples of different lockout situations could be multiplied, the logic of the Court's limitation of its holding should lead it to recognize that the problem of lockouts requires 'an evolutionary process,' not 'a quick, definitive formula,' for its answer.
65
The Court should be chary of sweeping generalizations in this complex area. When we deal with the lockout and the strike, we are dealing with weapons of industrial warfare. While the parties generally have their choice of economic weapons, see National Labor Relations Board v. Insurance Agents', 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454, this choice, with respect to both the strike and the lockout, is not unrestricted. While we have recognized 'the deference paid the strike weapon by the federal labor laws,' National Labor Relations Board v. Erie Resistor, supra, 373 U.S., at 235, 83 S.Ct., at 1149, not all forms of economically motivated strikes are protected or even permissible under the labor statutes5 or the prior decisions of this Court.6 Moreover, a lockout prompted by an antiunion motive is plainly illegal under the National Labor Relations Act,7 though no similar restrictions as to motive operate to limit the legality of a strike. See National Labor Relations Board v. Somerset Shoe Co., 1 Cir., 111 F.2d 681; National Labor Relations Board v. Stremel, 10 Cir., 141 F.2d 317; National Labor Relations Board v. Somerset Classics, Inc., 2 Cir., 193 F.2d 613. The varieties of restrictions imposed upon strikes and lockouts reflect the complexities presented by variant factual situations.
66
The Court not only overlooks the factual diversity among different types of lockout, but its statement of the rules governing unfair labor practices under §§ 8(a)(1) and (3) does not give proper recognition to the fact that '(t)he ultimate problem (in this area) is the balancing of the conflicting legitimate interests.' National Labor Relations Board v. Truck Drivers Union, etc., 353 U.S. 87, 96, 77 S.Ct. 643, 648, 1 L.Ed.2d 676. The Court states that employer conduct, not actually motivated by antiunion bias,8 does not violate § 8(a) (1) or § 8(a)(3) unless it is 'demonstrably so destructive of collective bargaining,' ante, at 309, or 'so prejudicial to union interests and so devoid of significant economic justification,' ante, at 311, that no antiunion animus need be shown. This rule departs substantially from both the letter and the spirit of numerous prior decisions of the Court. See, e.g., National Labor Relations Board v. Truck Drivers Union, etc., supra, 353 U.S., at 96, 77 S.Ct., at 647; Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372; National Labor Relations Board v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975; National Labor Relations Board v. Burnup & Sims, Inc., 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1.
67
These decisions demonstrate that the correct test for determining whether § 8(a)(1) has been violated in cases not involving an employer antiunion motive is whether the business justification for the employer's action outweighs the interference with § 7 rights involved. In Republic Aviation Corp. v. National Labor Relations Board, supra, for example, the Court affirmed a Board holding that a company 'no-solicitation' rule was invalid as applied to prevent solicitation of employees on company property during periods when employees were free to do as they pleased, not because such a rule was 'demonstrably * * * destructive of collective bargaining,' but simply because there was no significant employer justification for the rule and there was a showing of union interest, though far short of a necessity, in its abolition. See also, National Labor Relations Board v. Burnup & Sims, Inc., supra.
68
A similar test is applicable in § 8(a)(3) cases where no antiunion motive is shown. The Court misreads Radio Officers' Union v. National Labor Relations Board, 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455, and National Labor Relations Board v. Erie Resistor Corp., supra, in stating that the test in such cases under § 8(a)(3) is whether practices 'are inherently so prejudicial to union interests and so devoid of significant economic justification that no specific evidence of intent to discourage union membership or other antiunion animus is required.' Ante, at 311. Radio Officers did not restrict the application of § 8(a)(3) in cases devoid of antiunion motive to the extreme situations encompassed by the Court's test. Rather, in holding applicable the common-law rule that a man is presumed to intend the foreseeable consequences of his own actions, the Court extended the reach of § 8(a)(3) to all cases in which a significant antiunion effect is foreseeable regardless of the employer's motive. In such cases the Court, in Erie Resistor Corp., held that conduct might be determined by the Board to violate § 8(a)(3) where the Board's determination resulted from a reasonable 'weighing (of) the interests of employees in concerted activity against the interest of the employer in operating his business in a particular manner and * * * (from) balancing in the light of the Act and its policy the intended consequences upon employee rights against the business ends to be served by the employer's conduct.' 373 U.S., at 229, 83 S.Ct., at 1145.
69
These cases show that the tests as to whether an employer's conduct violates § 8(a)(1) or violates § 8(a)(3) without a showing of antiunion motive come down to substantially the same thing: whether the legitimate economic interests of the employer justify his interference with the rights of his employees—a test involving 'the balancing of the conflicting legitimate interests.' National Labor Relations Board v. Truck Drivers Union, etc., supra, 353 U.S., at 96, 77 S.Ct., at 648. As the prior decisions of this Court have held, '(t)he function of striking * * * (such a) balance * * * often a difficult and delicate responsibility, * * * Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.' Ibid.
70
This, of course, does not mean that reviewing courts are to abdicate their function of determining whether, giving due deference to the Board, the Board has struck the balance consistently with the language and policy of the Act. See National Labor Relations Board v. Brown, supra; National Labor Relations Board v. Truck Drivers Union, etc., supra. Nor does it mean that reviewing courts are to rubber-stamp decisions of the Board where the application of principles in a particular case is irrational or not supported by substantial evidence on the record as a whole. Applying these principles to the factual situation here presented, I would accept the Board's carefully limited rule, fashioned by the Board after weighing the 'conflicting legitimate interests' of employers and unions, that a lockout does not violate the Act where used to 'safeguard against unusual operational problems or hazards or economic loss where there is reasonable ground for believing that a strike (is) * * * threatened or imminent.' Quaker State Oil Refining Corp., supra, at 337. This rule is consistent with the policies of the Act and based upon the actualities of industrial relations. I would, however, reject the determination of the Board refusing to apply this rule to this case, for the undisputed facts revealed by the record bring this case clearly within the rule.
71
In view of the necessity for, and the desirability, of weighing the legitimate conflicting interests in variant lockout situations, there is not and cannot be any simply formula which readily demarks the permissible from the impermissible lockout. This being so, I would not reach out in this case to announce principles which are determinative of the legality of all economically motivated lockouts whether before or after a bargaining impasse has been reached. In my view both the Court and the Board, in reaching their opposite conclusions, have inadvisably and unnecessarily done so here. Rather, I would confine our decision to the simple holding, supported by both the record and the actualities of industrial relations, that the employer's fear of a strike was reasonable, and therefore, under the settled decisions of the Board, which I would approve, the lockout of its employees was justified.
1
142 N.L.R.B. 1362, enforced, 118 U.S.App.D.C. 78, 331 F.2d 839 (1964).
29 U.S.C. § 158(a): 'It shall be an unfair labor practice for an employer—
'(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
'(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization:'
29 U.S.C. § 157: 'Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment * * *.'
2
Compare National Labor Relations Board v. Dalton Brick & Tile Corp., 301 F.2d 886 (C.A.5th Cir. 1962); Morand Bros. Beverage Co. v. National Labor Relations Board, 190 F.2d 576 (C.A.7th Cir. 1951), 204 F.2d 529 (1953), with Quaker State Oil Refining Corp. v. National Labor Relations Board, 270 F.2d 40 (C.A.3d Cir. 1959); Utah Plumbing and Heating Contractors Ass'n v. National Labor Relations Board, 294 F.2d 165 (C.A.10th Cir. 1961).
3
The dissenting members of the Board took the view that the indefinite extension would not have afforded the employer enforcible protection against a strike. 142 N.L.R.B., at 1368.
4
The complaint was limited to the Chica go yard.
5
Although the complaint stated a violation of § 8(a)(5) as well, the Board made no findings as to this claim, believing that there would have been no point in entering a bargaining order because the parties had long since executed an agreement. The passage quoted below in the text of this opinion from National Labor Relations Board v. Insurance Agents' International Union, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (see pp. 317-318, infra), has even more direct application to the § 8(a)(5) question. See also National Labor Relations Board v. Dalton Brick & Tile Corp., 301 F.2d 886, 894—895 (C.A.5th Cir. 1962).
6
E.g., Utah Plumbing & Heating Contractors Assn., 126 N.L.R.B. 973; Quaker State Oil Refining Corp., 121 N.L.R.B. 334.
7
The Board's initial view was that such lockouts are unlawful. Morand Bros. Beverage Co., 91 N.L.R.B. 409; Davis Furniture Co., 100 N.L.R.B. 1016. The Board later embraced the contrary view, Buffalo Linen Supply Co., 109 N.L.R.B. 447, a position earlier taken by the Ninth Circuit in reversing the Davis Furniture case sub nom. Leonard v. National Labor Relations Board, 205 F.2d 355 (1953).
8
Contrary to the views expressed in a concurring opinion filed in this case, we intimate no view whatever as to the consequences which would follow had the employer replaced its employees with permanent replacements or even temporary help. Cf. National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381.
9
National Labor Relations Act as amended, § 13, 61 Stat. 151, 29 U.S.C. § 163 (1958 ed.): 'Nothing in this subchapter, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.'
10
Of course to the extent that the employer-induced work stoppage did not accomplish objectives which could be achieved by ancillary measures, such as picketing, the union would not be precluded from employing those measures.
11
1 Legislative History of the National Labor Relations Act, 1935, 3 (hereafter Leg.Hist.). Section 4 of the bill provided:
'Employees shall have the right to organize and join labor organizations, and to engage in concerted activities, either in labor organizations or otherwise, for the purposes of organizing and bargaining collectively through representatives of their own choosing or for other purposes of mutual aid or protection.' Ibid.
12
1 Leg.Hist. 406, 545, 570, 946.
13
S. 2926, § 3(2):
'It shall be an unfair labor practice (f)or employees to attempt, by interference or coercion, to impair the exercise by employers of the right to join or form employer organizations and to designate representatives of their own choosing for the purpose of collective bargaining.' 1 Leg.Hist. 1087.
14
S. 2926, § 3(1):
'It shall be an unfair labor practice (f)or an employer to attempt, by interference or coercion, to impair the exercise by employees of the right to form or join labor organizations, to designate representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.' Ibid.
15
Respondent's Brief 17.
1
See note 4, infra.
2
This same negotiator also testified as follows:
'Q. Did you say that the company was crying about not being able to afford a wage increase and yet did you say that in 1958 the company used the same argument and that a ten or a twelve week strike ensued at the conclusion of which an eight cent an hour increase was granted for each of three years and that the company was still not out of business?
'A. Yes.'
3
There is some evidence in the record that one other local business agent gave a similar assurance.
4
See 1 Williston, Contracts §§ 38, 39 (3d ed. 1957); cf. Pacific Coast Association of Pulp & Paper Manufacturers, 121 N.L.R.B. 990, 993.
5
See, e.g., the secondary boycott and organizational picketing restrictions. 61 Stat. 141, 29 U.S.C. § 158(b)(4) (1958 ed.), 73 Stat. 542, 544, 29 U.S.C. §§ 158(b)(4) and (7) (1958 ed., Supp. V).
6
See International Union Automobile Workers, etc. v. Wisconsin Unemployment Relations Board, 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651; National Labor Relations Board v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627.
7
See National Labor Relations Board v. Truck Drivers Union, etc., supra, 353 U.S., at 93, 77 S.Ct., at 646; Textile Workers' Union v. Darlington Mfg. Co., 380 U.S. 263, at 268—269, 85 S.Ct. 994, at 998—999.
8
National Labor Relations Act § 8(a)(3), 49 Stat. 452, as amended, 29 U.S.C. § 158(a)(3) provides that it shall be an unfair labor practice 'by discrimination * * * to encourage or discourage membership in any labor organization.' The only type of discriminatory motive with which we are here concerned is that which discourages membership in a union.
| 67
|
380 U.S. 359
85 S.Ct. 1012
13 L.Ed.2d 895
O'KEEFFE, Deputy Commissioner,v.SMITH, HINCHMAN & GRYLLS ASSOCIATES, INC., et al.
No. 307.
March 29, 1965.
Solicitor General Cox, Assistant Attorney General Douglas and Morton Hollander, for petitioner.
George W. Ericksen, for respondents.
PER CURIAM.
1
Robert C. Ecker drowned during a Saturday outing while boating on a South Korean lake. At the time of his death he was employed at a defense base in South Korea by the respondent, Smith, Hinchman & Grylls Associates, a government contractor.
2
The decedent had been hired in the United States under an oral contract the terms of which provided that he was to be transported to South Korea at his employer's expense, remain there for two years, and then, at his employer's expense, be transported back to the United States. The employer paid his rent and provided him with a per diem expense allowance for each day of the year, including weekends and holidays, to cover 'the necessary living expenditures in the Korean economy.' He worked on a '365 day per year basis * * * subject to call to the job site at any time.' He 'quite often' worked on Saturdays and Sundays and at other times outside the normal work day. The employer considered all its employees to be 'in the course of regular occupation from the time they leave the United States until their return.' The employer expected the decedent and its other employees to seek recreation away from the job site on weekends and holidays.
3
Based upon the above stipulated facts, the Deputy Commissioner of the Bureau of Employees' Compensation, United States Department of Labor, petitioner herein, determined 'that the accident and the subsequent death of the decedent arose out of and in the course of employment.' 222 F.Supp. 4, 6. He therefore awarded death benefits to the decedent's widow and a minor child in accordance with the terms of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, as amended, 33 U.S.C. § 901 et seq. (1958 ed.), as extended by the Defense Base Act, 55 Stat. 622, as amended, 42 U.S.C. § 1651 et seq. (1958 ed.). The employer and its insurance carrier, respondents herein, then brought this action in the United States District Court for the Middle District of Florida to set aside and enjoin the enforcement of this compensation award. The District Court affirmed the compensation award and granted the Deputy Commissioner's motion for summary judgment. 222 F.Supp. 4. A panel of the Court of Appeals for the Fifth Circuit summarily reversed and set aside the award. 327 F.2d 1003. But compare the later decision of another panel of the Fifth Circuit in O'Keeffe v. Pan American World Airways, Inc., 338 F.2d 319.
4
The petition for writ of certiorari is granted and the judgment of the Court of Appeals is reversed. Section 2(2) of the Act, 33 U.S.C. § 902(2) (1958 ed.), provides workmen's compensation for any 'accidental injury or death arising out of and in the course of employment.' Section 19(a), 33 U.S.C. § 919(a) (1958 ed.), provides for the filing of a 'claim for compensation' and specifies that 'the deputy commissioner shall have full power and authority to hear and determine all questions in respect of such claim.' Section 20(a), 33 U.S.C. § 920(a) (1958 ed.), provides that '(i)n any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary * * * (t)hat the claim comes within the provisions of this chapter.' Finally, § 21(b), 33 U.S.C. § 921(b) (1958 ed.), provides that the Deputy Commissioner's compensation order may be suspended and set aside by a reviewing court only '(i)f not in accordance with law.'
5
In cases decided both before and after the passage of the Administrative Procedure Act, 60 Stat. 237, as amended, 5 U.S.C. § 1001, et seq. (1958 ed.), the Court has held that the foregoing statutory provisions limit the scope of judicial review of the Deputy Commissioner's determination that a 'particular injury arose out of and in the course of employment.' Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 477—478, 67 S.Ct. 801, 806, 91 L.Ed. 1028; O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 507—508, 71 S.Ct. 470, 95 L.Ed. 622.
6
'It matters not that the basic facts from which the Deputy Commissioner draws this inference are undisputed rather than controverted. * * * It is likewise immaterial that the facts permit the drawing of diverse inferences. The Deputy Commissioner alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court. * * * Moreover, the fact that the inference of the type here made by the Deputy Commissioner involves an application of a broad statutory term or phrase to a specific set of facts gives rise to no greater scope of judicial review. * * *' Cardillo v. Liberty Mutual Ins. Co., supra, 330 U.S. at 478, 67 S.Ct. at 807.
7
The rule of judicial review has therefore emerged that the inferences drawn by the Deputy Commissioner are to be accepted unless they are irrational or 'unsupported by substantial evidence on the record * * * as a whole.' O'Leary v. Brown-Pacific-Maxon, Inc., supra, 340 U.S. at 508, 71 S.Ct. at 472.
8
The Brown-Pacific-Maxon case held that the standard to be applied by the Deputy Commissioner does not require 'a causal relation between the nature of employment of the injured person and the accident. Thom v. Sinclair, (1917) A.C. 127, 142. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the 'obligations or conditions' of employment create the 'zone of special danger' out of which the injury arose.' Id., 340 U.S. at 507, 71 S.Ct., at 472. And, borrowing from language in Matter of Waters v. Taylor Co., 218 N.Y. 248, 252, 112 N.E. 727, 728, L.R.A.1917A, 347, the Court in Brown-Pacific-Maxon drew the line only at cases where an employee had become 'so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment.' 340 U.S., at 507, 71 S.Ct., at 472. This standard is in accord with the humanitarian nature of the Act as exemplified by the statutory command that '(i)n any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary * * * (t)hat the claim comes within the provisions of this chapter.' § 20(a), 33 U.S.C. § 920(a).
9
In this case, the Deputy Commissioner, applying the Brown-Pacific-Maxon standard to the undisputed facts, concluded 'that the accident and the subsequent death of the decedent arose out of and in the course of employment.' 222 F.Supp. 4, 6. The District Court, likewise applying the Brown-Pacific-Maxon standard, held 'that the Deputy Commissioner was correct in his finding that the conditions of the deceased's employment created a zone where the deceased Ecker had to seek recreation under exacting and unconventional conditions and that therefore the accident and death of the decedent arose out of and in the course of employment.' 222 F.Supp., at 9.
10
We agree that the District Court correctly affirmed the finding of the Deputy Commissioner. While this Court may not have reached the same conclusion as the Deputy Commissioner, it cannot be said that his holding that the decedent's death, in a zone of danger, arose out of and in the course of his employment is irrational or without substantial evidence on the record as a whole. The decedent was hired to work in the exacting and unconventional conditions of Korea. His transportation over and back was to be at the employer's expense, and while there he was considered to be working on a 365-day-per-year basis, subject to call at the job site at any time, and quite often he worked Saturdays and Sundays and at other times outside the working day. The employer considered decedent and all other employees at this hazardous overseas base to be 'in the course of regular occupation from the time they leave the United States until their return.' Finally, the employer provided neither housing nor recreational activities for its employees, but expected them to live, while necessarily in the country to perform its work, under the exacting and dangerous conditions of Korea. The employer paid decedent's rent and provided him with a per diem expense allowance for each day of the year, including weekends and holidays, to cover the necessary living expenses in the Korean economy. The accident here occurred on an outing for a short period of time on a lake located only 30 miles from the employer's job site. In the words of the District Court, 'It was reasonable to conclude that recreational activities contributed to a higher efficiency of the employer's work and that when conducted in the restricted area of employment, on a work day, so to speak, and in a manner not prohibited by the employer, such activity was an incident of the employment.' 222 F.Supp. 4, 9.
11
The dissent, while giving lip service to the Brown-Pacific-Maxon standards, would reverse the determination of the Deputy Commissioner and District Court here, as well as the Deputy Commissioner and the Courts of Appeals in other cases, that the several accidents involved were within the 'zone of special danger.' As Brown-Pacific-Maxon made clear, it is just this type of determination which the statute leaves to the Deputy Commissioner subject only to limited judicial review. Indeed, this type of determination, depending as it does on an analysis of the many factors involved in the area of the employment, would seem to be one peculiarly for the Deputy Commissioner.
12
The District Court therefore correctly upheld the determination of the Deputy Commissioner and the Court of Appeals erred in summarily reversing its judgment. Cf. O'Keeffe v. Pan American World Airways, Inc., 338 F.2d 319 (C.A.5th Cir. 1964); Pan-American World Airways, Inc. v. O'Hearne, 335 F.2d 70 (C.A.4th Cir. 1964); Self v. Hanson, 305 F.2d 699 (C.A.9th Cir. 1962); Hastorf-Nettles, Inc. v. Pillsbury, 203 F.2d 641 (C.A.9th Cir. 1953).
13
Since we believe that the Deputy Commissioner and District Court properly applied the Brown-Pacific-Maxon standard, and since we deem it necessary to preserve the integrity of the administrative process established by Congress to effectuate the statutory scheme, the judgment of the Court of Appeals is reversed.
14
Reversed.
15
Mr. Justice HARLAN, whom Mr. Justice CLARK and Mr. Justice WHITE join, dissenting.
16
Ecker was employed in Seoul, Korea, as an assistant administrative officer for Smith, Hinchman & Grylls Associates, Inc., an engineering management concern working under contracts with the United States and Korean Governments. His duties were restricted to Seoul where he was responsible for personnel in the stenographic and clerical departments. He was subject to call at the job site at any time, but the usual work week was 44 hours, and employees were accustomed to travel far from the job site on weekends and holidays for recreational purposes. Ecker did not live at the job site; he was given an allowance to live on the economy in Seoul. On his Memorial Day weekend he went to a lake 30 miles east of Seoul where a friend of his (not a co-employee) had a house. Ecker intended to spend the holiday there with his friend and another visitor. Their Saturday afternoon project was to fill in the beach in front of the house with sand, but none was readily available. In order to obtain it the three crossed the lake in a small aluminum boat to a sandy part of the shore. There they filled the boat with a load of sand, intending to transport it back to the house. The return trip, however, put Archimedes' Principle to the test; in the middle of the lake the boat capsized and sank. Two of the three men drowned, including Ecker.
17
The Longshoremen's and Harbor Workers' Compensation Act,1 as extended by the Defense Bases Act,2 provides workmen's compensation for any
18
'accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment.' 33 U.S.C. § 902(2).
19
The Court holds, per curiam, that Ecker died in the course of his employment. I see no meaningful interpretation of the statute which will support this result except a rule that any decision made by a Deputy Commissioner must be upheld (compare Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493). That interpretation, although meaningful, is unsupportable.
20
O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 622, relied upon by the Court, did not establish such a rule. The Court there upheld a compensation award arising from the accidental death of an employee of a government contractor on the island of Guam. The employer maintained for its employees a recreation center near the shoreline along which ran a very dangerous channel. After spending the afternoon at the employer's recreation center, and while waiting for the employer's bus, the employee heard cries for help from two men in trouble in the channel. He drowned in his attempt to rescue them. Mr. Justice Frankfurter, writing for the Court, stated the standard of coverage as:
21
'All that is required is that the 'obligations or conditions' of employment create the 'zone of special danger' out of which the injury arose.' 340 U.S., at 507, 71 S.Ct., at 472.
22
That language was intended to mean only that where the employer had placed a facility for employees in an especially dangerous location and thus had created a danger of accidents, a 'reasonable rescue attempt' could be 'one of the risks of the employment.' This was made crystal clear by the caveat: 'We hold only that rescue attempts such as that before us are not necessarily excluded from the coverage of the Act as the kind of conduct that employees engage in as frolics of their own.' Ibid.
23
He went on to state that the standard of review to be applied to the Deputy Commissioner's finding that the employee died in the course of his employment was the same as that set out in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, for review of Labor Board decisions. Mr. Justice Frankfurter wrote both Universal Camera and Brown-Pacific-Maxon, and delivered the opinions on the same day. Reliance upon Universal Camera in Brown-Pacific-Maxon shows beyond doubt that the Court was not establishing a rule that any compensation award by a Deputy Commissioner would be automatically upheld, for it was the whole purpose of Universal Camera to effectuate congressional intent that the courts expand their scope of review over administrative decisions. That opinion defined judicial responsibility for examining the whole record in Labor Board cases, and not just those parts of the record which tended to support the Board. It remains today as the leading judicial guide for administrative review, and the most prominent directive to lower courts not to underestimate their responsibilities in this regard. I think it untenable to read a case which purports to apply the Universal Camera standard of review as embodying a philosophy of judicial abdication.
24
I read Brown-Pacific-Maxon to mean that some questions of application of 'arising out of and in the course of employment' to the facts of a case will be left to the discretion of the administrator, and review of his decision treated as review of a finding of fact. The cases in which this limited review of the administrator's decision is appropriate are those in which one application of the statute to the external facts of the case effectuates the judicially recognizable purpose of the statute as well as another. Dominion over the broad or clear purposes of the statute thus remains firmly in the courts' hands, while within the confines of such statutory purposes, administrators are left discretion to provide the intimate particularizations of statutory application.3 Brown-Pacific-Maxon is illustrative. The employee drowned in a particularly treacherous channel with which his job brought him into proximity. The danger was not great that circumstance would force him to swim in the channel, but the danger existed and was peculiar to the locality to which his job brought him; and it was out of this special danger that the employee's injury arose. This, taken together with the other elements of job connection which the administrator thought relevant, rendered an award in the case consistent with the broad purposes of the compensation statute. Yet had the Deputy Commissioner come out the other way, I think that his decision would have been equally supportable. Although it was true that the injury was related to an especially dangerous channel with which the employee's job brought him into proximity, the administrator could have ruled that the danger, although special, was so remote that the connection between the job and the injury was not sufficient to justify compensation. Either result would have been consistent with the statutory purpose of compensating all job-connected injuries on the actual job site and, additionally, those injuries off the job site which result from the 'special' dangers of the employment. In the sense that both results would have been supportable, the review of the choice actually made by the Deputy Commissioner was treated as review of a finding of fact.
25
In the case before us, the Deputy Commissioner's ruling is not consistent with the statutory purpose. The injury did not take place on the actual job site, and it did not arise out of any special danger created by the job. In no sense can it be said that Ecker's job created any 'special' danger of his drowning in a lake, or more particularly, of his loading a small boat with sand and capsizing it. Nothing indicates that the lake was rougher, the boat tippier, or the sand heavier than their counterparts in the United States. If there were 'exacting and unconventional conditions' in Korea it does not appear that the lake, boat, or sand was one of them. There is nothing more than a 'but for' relationship between the accident and the employment. To permit the award of compensation to stand reads the 'job-connected' emphasis right out of the statute, an emphasis which is clearly there. Only injuries 'arising out of' the employment are compensated. A disease or infection is covered if it arises 'naturally out of such employment.' Injuries willfully inflicted by third persons upon an employee are covered only if inflicted 'because of his employment.' A 'but for' relationship between the injury and the employment should not in itself be sufficient to bring about coverage.
26
Whether the injury is compensable should depend to some degree on the cause of the injury as well as the time of day, location, and momentary activity of the employee at the time of the accident. I would distinguish between a case in which Ecker smashed his hand in a filing cabinet while at the office and one in which he tripped over a pebble while off on a weekend hike. In the first case Ecker's injury would have arisen out of and in the course of his employment, whereas the statute would not apply to the second case unless the injury were traceable to some special danger peculiar to the employment, which was clearly not the case. Thus, if while off on that same weekend hike Ecker stepped on a mine left over from the Korean conflict, a different result could follow.
27
This view of the statute makes far more sense to me than the view adopted by the Court as indicated by the result in this case and its approving citation of such cases as Self v. Hanson, 9 Cir., 305 F.2d 699, and Pan American World Airways, Inc. v. O'Hearne, 4 Cir., 335 F.2d 70, cert. denied 380 U.S. 950, 85 S.Ct. 1080. It is difficult to determine just what such cases stand for. In Self v. Hanson, for instance, Miss Williams was in the company of a gentleman in a pick-up truck parked at the end of a breakwater on Guam Island at 11 o'clock in the evening. The gentleman said that he wanted to show her a ship in the harbor. Apparently they had been looking at it for over half an hour when the driver of another vehicle on the breakwater lost control and ran into the pick-up truck, causing Miss Williams spinal injuries. The Ninth Circuit upheld the Deputy Commissioner's ruling that she was injured in the course of her employment as a secretary on a Guam defense project.
28
To permit compensation for such injuries is to impose absolute liability upon the employer for any and all injuries, whatever their nature, whatever their cause, just so long as the Deputy Commissioner makes an award and the job location is one to which the reviewing judge would not choose to go if he had his choice of vacation spots. Before setting its stamp of approval on such an interpretation of the statute, the Court at the very least should hear argument and receive briefs on the merits. The Solicitor General has pointed out that 'there are several thousands of injury cases reported annually' under this Act.4 He urged that this question be definitively resolved by this Court. Because of the importance placed by all parties upon resolution of the proper application of the Act to these cases, and because I do not believe Brown-Pacific-Maxon, supra, dictates the Court's result, I respectfully dissent from its decision to treat O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., summarily, from its decision on the merits in that case, and from its denial of certiorari in Pan-American World Airways, Inc. v. O'Hearne, 380 U.S. 950, 85 S.Ct. 1080, and Pan American World Airways, Inc. v. O'Keeffe, 380 U.S. 951, 85 S.Ct. 1083.
29
Mr. Justice DOUGLAS, dubitante.
30
The problems under this Act should rest mainly with the Courts of Appeals.* What we said in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456, of review by Courts of Appeals of decisions of the National Labor Relations Board, should be applicable here:
31
'Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.'
32
Applying that test I would not be inclined to reverse a Court of Appeals that disagreed with a Deputy Commissioner over findings as exotic as we have here.
1
44 Stat. 1424, as amended, 33 U.S.C. § 901 et seq. (1958 ed.).
2
55 Stat. 622, as amended, 42 U.S.C. § 1651 et seq. (1958 ed.).
3
See generally, Jaffe, Judicial Review: Question of Law, 69 Harv.L.Rev. 239 (1955).
4
Petition for certiorari in No. 307, p. 11.
*
These problems are unlike those under the Federal Employers' Liability Act where suits can be brought both in state and in federal courts (45 U.S.C. § 56) and where the law, poorly received by the judiciary, has been severely eroded. See Wilkerson v. McCarthy, 336 U.S. 53, 68 et seq., 69 S.Ct. 413, 420, 93 L.Ed. 497 (concurring opinion).
| 78
|
380 U.S. 278
85 S.Ct. 980
13 L.Ed.2d 839
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.John BROWN et al.
No. 7.
Argued Jan. 19, 1965.
Decided March 29, 1965.
[Syllabus from pages 278-279 intentionally omitted]
Norton J. Come, Washington, D.C., for petitioner.
William L. Keller, Dallas, Tex., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The respondents, who are members of a multiemployer bargaining group, locked out their employees in response to a whipsaw strike against another member of the group. They and the struck employer continued operations with temporary replacements. The National Labor Relations Board found that the struck employer's use of temporary replacements was lawful under National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381, but that the respondents had violated § 8(a)(1) and (3) of the National Labor Relations Act1 by locking out their regular employees and using temporary replacements to carry on business. 137 N.L.R.B. 73. The Court of Appeals for the Tenth Circuit disagreed and refused to enforce the Board's order. 319 F.2d 7. We granted certiorari, 375 U.S. 962, 84 S.Ct. 484, 11 L.Ed.2d 413. We affirm the Court of Appeals.
2
Five operators of six retail food stores in Carlsbad, New Mexico, make up the employer group. The stores had bargained successfully on a group basis for many years with Local 462 of the Retail Clerks International Association. Negotiations for a new collective-bargaining agreement to replace the expiring one began in January 1960. Agreement was reached by mid-February on all terms except the amount and effective date of a wage increase. Bargaining continued without result, and on March 2 the Local informed the employers that a strike had been authorized. The employers responded that a strike against any member of the employer group would be regarded as a strike against all. On March 16, the union struck Food Jet, Inc., one of the group. The four respondents, operating five stores, immediately locked out all employees represented by the Local, telling them and the Local that they would be recalled to work when the strike against Food Jet ended. The stores, including Food Jet, continued to carry on business by using management personnel, relatives of such personnel, and a few temporary employees; all of the temporary replacements were expressly told that the arrangement would be discontinued when the whipsaw strike ended.2 Bargaining continued until April 22 when an agreement was reached. The employers immediately released the temporary replacements and restored the strikers and the locked-out employees to their jobs.
3
The Board and the Court of Appeals agreed that the case was to be decided in light of our decision in the so-called Buffalo Linen case, National Labor Relations Board v. Truck Drivers Union, 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676. There we sustained the Board's finding that, in the absence of specific proof of unlawful motivation, the use of a lockout by members of a multiemployer bargaining unit in response to a whipsaw strike did not violate either § 8(a)(1) or § 8(a)(3). We held that, although the lockout tended to impair the effectiveness of the whipsaw strike, the right to strike 'is not so absolute as to deny self-help by employers when legitimate interests of employees and employers collide. * * * The ultimate problem is the balancing of the conflicting legitimate interests.' 353 U.S., at 96, 77 S.Ct. at 647. We concluded that the Board correctly balanced those interests in upholding the lockout, since it found that the nonstruck employers resorted to the lockout to preserve the multiemployer bargaining unit from the disintegration threatened by the whipsaw strike. But in the present case the Board held, two members dissenting, that the respondents' continued operations with temporary replacements constituted a 'critical difference' from Buffalo Linen—where all members of the employer group shut down operations—and that in this circumstance it was reasonable to infer that the respondents did not act to protect the multiemployer group, but 'for the purpose of inhibiting a lawful strike.' 137 N.L.R.B., at 76. Thus the respondents' act was both a coercive practice condemned by § 8(a)(1) and discriminatory conduct in violation of § 8(a)(3).
4
The Board's decision does not rest upon independent evidence that the respondents acted either out of hostility toward the Local or in reprisal for the whipsaw strike. It rests upon the Board's appraisal that the respondents' conduct carried its own indicia of unlawful intent, thereby establishing, without more, that the conduct constituted an unfair labor practice. It was disagreement with this appraisal, which we share, that led the Court of Appeals to refuse to enforce the Board's order.
5
It is true that the Board need not inquire into employer motivation to support a finding of an unfair labor practice where the employer conduct is demonstrably destructive of employee rights and is not justified by the service of significant or important business ends. See, e.g., National Labor Relations Board v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308; National Labor Relations Board v. Burnup & Sims, Inc., 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1. We agree with the Court of Appeals that, in the setting of this whipsaw strike and Food Jet's continued operations, the respondents' lockout and their continued operations with the use of temporary replacements, viewed separately or as a single act, do not constitute such conduct.
6
We begin with the proposition that the Act does not constitute the Board as an 'arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands.' National Labor Relations Board v. Insurance Agents, 361 U.S. 477, 497, 80 S.Ct. 419, 4 L.Ed.2d 454. In the absence of proof of unlawful motivation, there are many economic weapons which an employer may use that either interfere in some measure with concerted employee activities, or which are in some degree discriminatory and discourage union membership, and yet the use of such economic weapons does not constitute conduct that is within the prohibition of either § 8(a)(1) or § 8(a)(3). See, e.g., National Labor Relations Board v. Mackay Radio & Telegraph Co., supra; National Labor Relations Board v. Dalton Brick & Tile Co., 5 Cir., 301 F.2d 886, 896. Even the Board concedes that an employer may legitimately blunt the effectiveness of an anticipated strike by stockpiling inventories, readjusting contract schedules, or transferring work from one plant to another, even if he thereby makes himself 'virtually strikepproof.'3 As a general matter he may completely liquidate his business without violating either § 8(a)(1) or § 8(a)(3), whatever the impact of his action on concerted employee activities. Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 85 S.Ct. 994. Specifically, he may in various circumstances use the lockout as a legitimate economic weapon. See, e.g., National Labor Relations Board v. Truck Drivers Union, supra; National Labor Relations Board v. Dalton Brick & Tile Corp., supra; Leonard v. National Labor Relations Board, 9 Cir., 205 F.2d 355; Betts Cadillac Olds, Inc., 96 N.L.R.B. 268; International Shoe Co., 93 N.L.R.B. 907; Pepsi-Cola Bottling Co., 72 N.L.R.B. 601, 602; Duluth Bottling Assn., 48 N.L.R.B. 1335; Link-Belt Co., 26 N.L.R.B. 227. And in American Ship Building Co. v. Labor Board, 380 U.S. 300, 85 S.Ct. 955, we hold that a lockout is not an unfair labor practice simply because used by an employer to bring pressure to bear in support of his bargaining position after an impasse in bargaining negotiations has been reached.
7
In the circumstances of this case, we do not see how the continued operations of respondents and their use of temporary replacements imply hostile motivation any more than the lockout itself; nor do we see how they are inherently more destructive of employee rights. Rather, the compelling inference is that that was all part and parcel of respondents' defensive measure to preserve the multiemployer group in the face of the whipsaw strike. Since Food Jet legitimately continued business operations, it is only reasonable to regard respondents' action as evincing concern that the integrity of the employer group was threatened unless they also managed to stay open for business during the lockout. For with Food Jet open for business and respondents' stores closed, the prospect that the whipsaw strike would succeed in breaking up the employer association was not at all fanciful. The retail food industry is very competitive and repetitive patronage is highly important. Faced with the prospect of a loss of patronage to Food Jet, it is logical that respondents should have been concerned that one or more of their number might bolt the group and come to terms with the Local, thus destroying the common front essential to multiemployer bargaining. The Court of Appeals correctly pictured the respondents' dilemma in saying, 'If * * * the struck employer does choose to operate with replacements and the other employers cannot replace after lockout, the economic advantage passes to the struck member, the nonstruck members are deterred in exercising the defensive lockout, and the whipsaw strike * * * enjoys an almost inescapable prospect of success.' 319 F.2d at 11. Clearly respondents' continued operations with the use of temporary replacements following the lockout were wholly consistent with a legitimate business purpose.
8
Nor are we persuaded by the Board's argument that justification for the inference of hostile motivation appears in the respondents' use of temporary employees rather than some of the regular employees. It is not commonsense, we think, to say that the regular employees were 'willing to work at the employers' terms.' 137 N.L.R.B., at 76. It seems probable that this 'willingness' was motivated as much by their understandable desire to further the objective of the whipsaw strike—to break through the employers' united front by forcing Food Jet to accept the Local's terms—as it was by a desire to work for the employers under the existing unacceptable terms. As the Board's dissenting members put it, 'These employees are willing only to receive wages while their brethren in the rest of the associationwide unit are exerting whipsaw pressure on one employer to gain benefits that will ultimately accrue to all employees in the associationwide unit, including those here locked out.' 137 N.L.R.B., at 78. Moreover, the course of action to which the Board would limit the respondents would force them into the position of aiding and abetting the success of the whipsaw strike and consequently would render 'largely illusory,' 137 N.L.R.B., at 78—79, the right of lockout recognized by Buffalo Linen; the right would be meaningless if barred to nonstruck stores that find it necessary to operate because the struck store does so.
9
The Board's finding of a § 8(a)(1) violation emphasized the impact of respondents' conduct upon the effectiveness of the whipsaw strike. It is no doubt true that the collective strength of the stores to resist that strike is maintained, and even increased, when all stores stay open with temporary replacements. The pressures on the employee are necessarily greater when none of the union employees is working and the stores remain open. But these pressures are no more than the result of the Local's inability to make effective use of the whipsaw tactic. Moreover, these effects are no different from those that result from the legitimate use of any economic weapon by an employer. Continued operations with the use of temporary replacements may result in the failure of the whipsaw strike, but this does not mean that the employers' conduct is demonstrably so destructive of employee rights and so devoid of significant service to any legitimate business end that it cannot be tolerated consistently with the Act. Certainly then, in the absence of evidentiary findings of hostile motive, there is no support for the conclusion that respondents violated § 8(a)(1).
10
Nor does the record show any basis for concluding that respondents violated § 8(a)(3). Under that section both discrimination and a resulting discouragement of union membership are necessary, but the added element of unlawful intent is also required. In Buffalo Linen itself the employers treated the locked-out employees less favorably because of their union membership, and this may have tended to discourage continued membership, but we rejected the notion that the use of the lockout violated the statute. The discriminatory act is not by itself unlawful unless intended to prejudice the employees' position because of their membership in the union; some element of antiunion animus is necessary. See Radio Officers' Union v. National Labor Relations Board, 347 U.S. 17, 42—44, 74 S.Ct. 323, 98 L.Ed. 455; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, at 46, 57 S.Ct. 615, 81 L.Ed. 893. We have determined that the 'real motive' of the employer in an alleged § 8(a)(3) violation is decisive, Associated Press v. National Labor Relations Board, 301 U.S. 103, 132, 57 S.Ct. 650, 81 L.Ed. 953; if any doubt still persisted, we laid it to rest in Radio Officers' Union v. National Labor Relations Board, supra, where we reviewed the legislative history of the provision and concluded that Congress clearly intended the employer's purpose in discriminating to be controlling. Id., at 44, 74 S.Ct. 323. See also Textile Workers v. Darlington Mfg. Co., 380 U.S., at 275, 276, 85 S.Ct., at 1002; American Ship Building Co. v. National Labor Relations Board, 380 U.S., at 311—313, 85 S.Ct., at 963—965; Local 357, International Brotherhood of Teamsters v. National Labor Relations Board, 365 U.S. 667, 674—676, 81 S.Ct. 835, 6 L.Ed.2d 11.
11
We recognize that, analogous to the determination of unfair practices under § 8(a)(1), when an employer practice is inherently destructive of employee rights and is not justified by the service of important business ends, no specific evidence of intent to discourage union membership is necessary to establish a violation of § 8(a)(3). This principle, we have said, is 'but an application of the common-law rule that a man is held to intend the foreseeable consequences of his conduct.' Radio Officers' Union v. National Labor Relations Board, supra, at 45, 74 S.Ct. 323. For example, in National Labor Relations Board v. Erie Resistor Corp., supra, we held that an employer's action in awarding superseniority to employees who worked during a strike was discriminatory conduct that carried with it its own indicia of improper intent. The only reasonable inference that could be drawn by the Board from the award of superseniority—balancing the prejudicial effect upon the employees against any asserted business purpose—was that it was directed against the striking employees because of their union membership; conduct so inherently destructive of employee interests could not be saved from illegality by an asserted overriding business purpose pursued in good faith. But where, as here, the tendency to discourage union membership is comparatively slight, and the employers' conduct is reasonably adopted to achieve legitimate business ends or to deal with business exigencies we enter into an area where the improper motivation of the employers must be established by independent evidence. When so established, antiunion motivation will convert an otherwise ordinary business act into an unfair labor practice. National Labor Relations Board v. Erie Resistor Corp., supra, 373 U.S. at 227, 83 S.Ct. 1139, and cases there cited.
12
We agree with the Court of Appeals that respondents' conduct here clearly fits into the latter category, where actual subjective intent is determinative, and where the Board must find from evidence independent of the mere conduct involved that the conduct was primarily motivated by an antiunion animus. While the use of temporary nonunion personnel in preference to the locked-out union members is discriminatory, we think that any resulting tendency to discourage union membership is comparatively remote, and that this use of temporary personnel constitutes a measure reasonably adapted to the effectuation of a legitimate business end. Here discontent on the part of the Local's membership in all likelihood is attributable largely to the fact that the membership was locked out as the result of the Local's whipsaw strategem. But the lockout itself is concededly within the rule of Buffalo Linen. We think that the added dissatisfaction, with its resultant pressure on membership, attributable to the fact that the nonstruck employers remain in business with temporary replacements is comparatively insubstantial. First, the replacements were expressly used for the duration of the labor dispute only; thus, the displaced employee could not have looked upon the replacements as threatening their jobs. At most the union would be forced to capitulate and return its members to work on terms which, while not as desirable as hoped for, were still better than under the old contract. Second, the membership, through its control of union policy, could end the dispute and terminate the lockout at any time simply by agreeing to the employers' terms and returning to work on a regular basis. Third, in light of the union-shop provision that has been carried forward into the new contract from the old collective-bargaining agreement, it would appear that a union member would have nothing to gain and much to lose, by quitting the union. Under all these circumstances, we cannot say that the employers' conduct had any great tendency to discourage union membership. Not only was the prospect of discouragement of membership comparatively remote, but the respondents' attempt to remain open for business with the help of temporary replacements was a measure reasonably adapted to the achievement of a legitimate end—preserving the integrity of the multiemployer bargaining unit.4
13
When the resulting harm to employee rights is thus comparatively slight, and a substantial and legitimate business end is served, the employers' conduct is prima facie lawful. Under these circumstances the finding of an unfair labor practice under § 8(a)(3) requires a showing of improper subjective intent. Here, there is no assertion by either the union or the Board that the respondents were motivated by antiunion animus, nor is there any evidence that this was the case. On the contrary, the background of the employer association's relations with the union and all the circumstances of the respondents' behavior during the dispute tend to support the contrary conclusion: the history of labor relations between the employers and the Local divulges that the relationship has always been more than amicable; union-shop provisions have been incorporated in the collective-bargaining agreement between the Local and the employers for many years; in these very negotiations, the employers' association waived the failure of the Local to give timely notice of its desire to bargain over new terms of employment and consented to hear the Local's claims at the bargaining table; the record contains undisputed testimony by the store owners that they had no bone to pick with the Local, that on the contrary they thought that unions were a good thing, but felt forced to take action in order to preserve the multiemployer group from disintegration and to save their considerable stock of perishable food produce. Even the struck member of the association did not resort to permanent replacements for the striking workers, though it could have under Mackay; rather it sought to ride out the dispute with temporary replacements to avoid depriving the regular employees of their jobs. Thus, not only is there absent in the record any independent evidence of improper motive, but the record contains positive evidence of the employers' good faith. In sum, the Court of Appeals was required to conclude that there was not sufficient evidence gathered from the record as a whole to support the Board's finding that respondents' conduct violates § 8(a)(3). See Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.
14
It is argued, finally, that the Board's decision is within the area of its expert judgment and that, in setting it aside, the Court of Appeals exceeded the authorized scope of judicial review. This proposition rests upon our statement in Buffalo Linen that in reconciling the conflicting interests of labor and management the Board's determination is to be subjected to 'limited judicial review.' 353 U.S., at 96, 77 S.Ct. 643. When we used the phrase 'limited judicial review' we did not mean that the balance struck by the Board is immune from judicial examination and reversal in proper cases.5 Courts are expressly empowered to enforce, modify or set aside, in whole or in part, the Board's orders, except that the findings of the Board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. National Labor Relations Act, as amended, §§ 10(e), (f), 29 U.S.C. §§ 160(e), (f) (1958 ed.). Courts should be 'slow to overturn an administrative decision,' National Labor Relations Board v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 100 L.Ed. 975, but they are not left 'to 'sheer acceptance' of the Board's conclusions,' Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 803, 65 S.Ct. 982, 89 L.Ed. 1372. Reviewing courts are not obliged to stand aside and rubberstamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute. Such review is always properly within the judicial province, and courts would abdicate their responsibility if they did not fully review such administrative decisions. Of course due deference is to be rendered to agency determinations of fact, so long as there is substantial evidence to be found in the record as a whole. But where, as here, the review is not of a question of fact, but of a judgment as to the proper balance to be struck between conflicting interests, '(t)he deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.' American Ship Building Co. v. National Labor Relations Board, 380 U.S., at 318, 85 S.Ct., at 967.
15
Courts must, of course, set aside Board decisions which rest on an 'erroneous legal foundation.' National Labor Relations Board v. Babcock & Wilcox Co., supra, at 112—113, 76 S.Ct. 679. Congress has not given the Board untrammelled authority to catalogue which economic devices shall be deemed freighted with indicia of unlawful intent. National Labor Relations Board v. Insurance Agents, supra, 361 U.S. at 498, 80 S.Ct. 419. In determining here that the respondents' conduct carried its own badge of improper motive, the Board's decision, for the reasons stated, misapplied the criteria governing the application of §§ 8(a)(1) and (3). Since the order therefore rested on an erroneous legal foundation, the Court of Appeals properly refused to enforce it.6
16
Affirmed.
17
Mr. Justice GOLDBERG, whom THE CHIEF JUSTICE joins, concurring.
18
I agree with the Court that, given the Buffalo Linen case, National Labor Relations Board v. Truck Drivers Union, 353 U.S. 87, 77 S.Ct. 643, and applying it in light of the actualities of industrial relations, the employers' conduct here is shown to be justified and necessary to preserve the integrity of the employers' bargaining unit. After the union attempted a whipsaw strike against one member of the multiemployer bargaining unit, the other members locked out their employees. The struck employer attempted to carry on business by using management personnel, relatives of such personnel, and a few temporary employees. To avoid the whipsaw effect of the strike, the nonstruck employers then did the same. During the period of the lockout, all of the employers, struck as well as nonstruck, bargained with the union and, when agreement was reached, in all cases the temporary employees were dismissed and the union employees returned to their jobs.
19
As the Court seems to recognize, ante, p. 292, n. 6, this would be an entirely different case had the nonstruck employers locked out their employees and hired permanent replacements even if the struck employer had exercised his right to hire permanent replacements under the doctrine of National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904. If the Labor Board determined in such a case that the interference with employee rights was not justified by the legitimate economic interests of the employer, the Labor Board determination might well be controlling. See my concurring opinion in American Ship Building Co. v. National Labor Relations Board, 380 U.S. 300, at 327, 85 S.Ct. 955, at 972. Cf. National Labor Relations Board v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139. There would be grave doubts as to whether the act of locking out employees and hiring permanent replacements is justified by any legitimate interest of the nonstruck employers, for Buffalo Linen makes clear that the test in such a situation is not whether parity is achieved between struck and nonstruck employers, but, rather, whether the nonstruck employers' actions are necessary to counteract the whipsaw effects of the strike and to preserve the employer bargaining unit. Since in this case the nonstruck employers did nothing more than hire temporary replacements, an activity necessary to counter whipsawing by the union and to preserve the bargaining unit, I agree that, applying Buffalo Linen, the judgment of the Court of Appeals should be affirmed.
20
Mr. Justice WHITE, dissenting.
21
I cannot agree with the severe restrictions which the Court imposes on the Board's role in determining the employer conduct banned by §§ 8(a)(1) and (3) of the NLRA. This Court has long recognized that '(a) statute expressive of such large public policy as that on which the National Labor Relations Board is based must be broadly phrased and necessarily carries with it the task of administrative application,' Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 194, 61 S.Ct. 845, 852, and has repeatedly held that the Board may find some conduct sufficiently destructive of concerted activities and union membership as to fall within the broad language of §§ 8(a)(1) and (3) notwithstanding that the employer has a business justification for his actions. Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982; National Labor Relations Board v. Truck Drivers Union, 353 U.S. 87, 77 S.Ct. 643 (Buffalo Linen); National Labor Relations Board v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139; National Labor Relations Board v. Burnup & Sims, Inc., 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1. The Board holds that a lockout together with the hiring of replacements by the nonstruck employers of a multiemployer bargaining unit violates § 8(a)(1) and (3). The Court decides that this holding is an 'unauthorized assumption by an agency of major policy decisions properly made by Congress,' ante, at p. 292, and that the 'proper balance to be struck between conflicting interests' requires affirmance of the denial of enforcement of the Board's order. This decision represents a departure from the many decisions of this Court holding that the Board has primary responsibility to weigh the interest of employees in concerted activities against that of the employer in operating his business, Phelps Dodge, 313 U.S. 177, 61 S.Ct. 845; Buffalo Linen, 353 U.S. 87, 95, 77 S.Ct. 643; Erie Resistor, 373 U.S. 221; Burnup & Sims, 379 U.S. 21, 85 S.Ct. 121. The Board's discretion under these sections is not without substantial limits imposed by the policy of the Act and the requirement that the Board 'disclose the basis of its order' and 'give clear indication that it has exercised the discretion with which Congress has empowered it.' Phelps Dodge, 313 U.S. 177, 197, 61 S.Ct. 845, 854; cf. Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207. But in my view the Board has set out the basis and requisite findings for its order in this case and has not exceeded its power in finding the lockout and replacement of union employees an unfair labor practice.
22
The Court reasons that Buffalo Linen gave the nonstruck employer in a multiemployer unit a 'right' to lock out whenever a member of the unit is struck so that a parity of economic advantage or disadvantage between the struck and nonstruck employers can be maintained. In order to maintain parity where the struck employer hires replacements, the nonstruck employers must also be free to hire replacements, lest the right to lock out to protect the unit be illusory. And they need not offer these jobs to the locked-out employees desiring to work, lest the parity between the struck and nonstruck employers be lost and the right to lock out be meaningless. If this reasoning is sound, the nonstruck employers can not only lock out employees who belong to the union because of their union membership but also hire permanent as well as temporary nonunion replacements whenever the struck employer hires such replacements, for parity may well so require. But I cannot accept this reasoning.
23
One, Buffalo Linen established no unqualified 'right' of employers in a multiemployer unit to lock out. Rather it held that the Board was well within the policy and language of the Act in finding no unfair labor practice in the nonstruck members' ceasing operations after the union had successfully shut down the operations of one of the employers. Although a departure from the Board's general ban on lockouts because of their severe effect on protected employee rights, the Board found such a lockout justified by the union-imposed pressure on the employer unit where one employer could not operate and the others maintained full operations. The Board decided that the Act did not require the employers to contribute to this pressure by maintaining full operations.
24
Two, the threat to the integrity of the multiemployer unit, the consideration that was decisive in Buffalo Linen, is obviously very different where the struck employer continues operations with replacements; it certainly cannot be assumed that the struck employer operating with replacements is at the same disadvantage vis-a -vis the nonstruck employers as the employer in Buffalo Linen whose operations were totally shut down by the union. Indeed, there was no showing here that the struck employer was substantially disadvantaged at all, and the Board found that there was 'no economic necessity * * * for the other members shutting down.' 137 N.L.R.B. 73, at 77. The Court makes irrelevant the consideration that justified the lockout in Buffalo Linen—the effect of the single employer strike on the unit—on the faulty premise that Buffalo Linen established the nonstruck members' right to lock out. Neither the Board nor this Court said the right to lock out ineluctably follows from a single employer strike.
25
Three, the disparity between the struck employer who resumes operations and the nonstruck employers who choose to lock out to maintain a united front is caused by the unilateral action of one of the employer members of the unit and not by the union's whipsawing tactic. The integrity of the multiemployer unit may be important, but surely that consideration cannot justify employer tandem action destructive of concerted activity.
26
Four, the Court asserts that the right of nonstruck employers to hire temporary replacements, and to refuse to hire union men, is but a concomitant of the right to lock out to preserve the multiemployer group. This sanctification of the multiemployer unit ignores the fundamental rule that an employer may not displace union members with nonunion members solely on account of union membership, the prototype of discrimination under § 8(a)(3), National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, and may not maintain operations and refuse to retain or hire nonstriking union members, notwithstanding that most of the union members and most of the workers at that very plant are on strike. The struck employer need not continue operations, but if he does, he may not give a preference to employees not affiliated with the striking union, any more than he may do so after the strike, for § 7 explicitly and unequivocally protects the right of employees to engage and not to engage in a concerted activity and § 8(a)(3) clearly prohibits discrimination which discourages union membership. See Firth Carpet Co. v. National Labor Relations Board, 129 F.2d 633 (C.A.2d Cir.); National Labor Relations Board v. Shenandoah-Dives Mining Co., 145 F.2d 542 (C.A.10th Cir.); National Labor Relations Board v. Clausen, 188 F.2d 439 (C.A.3d Cir.), cert. denied, 342 U.S. 868, 72 S.Ct. 108, 96 L.Ed. 653; National Labor Relations Board v. Anchor Rome Mills, 228 F.2d 775, 780 (C.A.5th Cir.); National Labor Relations Board v. Robinson, 251 F.2d 639 (C.A.6th Cir.). If dismissing and replacing nonstriking union members at a struck plant discourages union membership and interferes with concerted activities, I fail to understand how this same conduct at a nonstruck plant, even if in the name of multiemployer parity and unity, has a different effect on employee rights. The employees are not on strike, and desire to work, for whatever reasons, and nothing in the right to lock out can alter these facts. The Court finds it unnecessary to explain how they are removed from the explicit protections of the Act, except to say they belong to the union or the unit the union represents and to assume conclusively they share its whipsawing purpose. Membership has never quite meant this before. The Court's justification for this invasion of employee rights by a member of a multiemployer unit is the employer's right to burden the union strike fund with all its members to bring economic pressure to bear on the union. Unfortunately, this reasoning has equal, if not greater, force in the single employer partial strike situation.
27
Finally, I cannot agree with the Court's fundamental premise on which its balance of rights is founded: that a lockout followed by the hiring of nonunion men to operate the plant has but a 'slight' tendency to discourage union membership, which includes participation in union activities, Radio Officers' Union v. National Labor Relations Board, 347 U.S. 17, 74 S.Ct. 23, and to impinge on concerted activity generally. This proposition overturns the Board's longheld views on the effect of lockouts and dismissal of union members. Moreover, it is difficult to fathom the logic or industrial experience which on the one hand dictates that a guarantee to strike replacements that they will not be laid off after a strike is 'inherently destructive of employee interests,' although based on a legitimate and important business justification, Erie Resistor, 373 U.S. 221, 83 S.Ct. 1139, and yet at the same time dictates that the dismissal of and refusal to hire nonstriking union members, who desire to work, because other union members working for a different employer have struck, have but a slight unimportant inhibiting effect on the affiliation with the union and on concerted activities. I think the Board's finding that this activity substantially burdens concerted activities and discourages union membership is far more consistent with Erie Resistor and industrial realities. Hence the Board was well within its authority in opting for explicitly protected statutory rights of employees as against a limited employer privilege allowable only in exceptional circumstances under an unbroken line of Board decisions since the inception of the Act.
28
'Although the Act protects the right of the employees to strike in support of their demands, this protection is not so absolute as to deny self-help by employers when legitimate interests of employees and employers collide. Conflict may arise, for example, between the right to strike and the interest of small employers in preserving multi-employer bargaining * * *. The ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.' Buffalo Linen, 353 U.S. 87, 96, 77 S.Ct. 643, 647.
29
This is especially so where integrity of a multiemployer bargaining unit is the principal factor to be considered since 'the compelling conclusion is that Congress * * * 'intended to leave to the Board's specialized judgment to inevitable questions concerning multi-employer bargaining bound to arise in the future." Ibid. I think the Court now repudiates this decision and assumes for itself the 'delicate task * * * of weighing the interests of employees in concerted activity against the interest of the employer in operating his business in a particular manner.' Erie Resistor, 373 U.S. 221, 229, 83 S.Ct. 1139, 1145. I would adhere to our prior cases and affirm the decision of the Board.
1
National Labor Relations Act, as amended, § 8(a), 61 Stat. 140, 29 U.S.C. § 158(a) (1958 ed.) provides: 'It shall be an unfair labor practice for an employer—
'(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
'(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * * *.'
National Labor Relations Act, as amended, § 7, 61 Stat. 140, 29 U.S.C. § 157 (1958 ed.) provides: 'Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or proection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment * * *.'
2
Food Jet used supervisory personnel and hired some 'sack boys'; respondent Safeway Stores, which operated two stores in Carlsbad, closed one and transferred its managerial personnel to the other; respondent Thrifty Way Food Stores used management personnel and their wives and also hired some part-time 'box boys'; respondent Brown Food Store relied on management personnel and their relatives, and a 'sack boy' transferred from an out-of-town branch store; respondent Cashway Food Stores also relied on management personnel and their relatives and some transferees from out-of-town branches.
3
See brief for the National Labor Relations Board in American Ship Building Co. v. National Labor Relations Board, 380 U.S. 300, 85 S.Ct. 955. See also 76 Harv.L.Rev. 1494, 1497.
4
For a history of rejection by Congress of proposals to limit or outlaw multiemployer bargaining see Buffalo Linen, 353 U.S., at 95—96, 77 S.Ct. 643.
5
This is evident from the authorities cited in Buffalo Linen, 353 U.S., at 96, n. 28, 77 S.Ct. 643.
In National Labor Relations Board v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, we set aside, as resting on an erroneous legal foundation, a Board decision finding that the employer's refusal to allow distribution of union literature on a company-owned parking lot violated § 8(a)(1). In Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372, we sustained the Board's decision but emphasized that judicial review is contemplated by 29 U.S.C. §§ 160(e), (f), 324 U.S., at 799, 65 S.Ct. 982. Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271, involved a question of remedy as to which the statute expressly grants the Board broad authority, 29 U.S.C. § 160(c). Since Buffalo Linen numerous Board orders have been set aside as outside of the Board's statutory authority. See, e.g., National Labor Relations Board v. Insurance Agents, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454; National Labor Relations Board v. Drivers Local Union, 362 U.S. 274, 80 S.Ct. 706, 4 L.Ed.2d 710, Local 357, International Brotherhood of Teamsters v. National Labor Relations Board, 365 U.S. 667, 81 S.Ct. 835, 6 L.Ed.2d 11; National Labor Relations Board v. Fruit and Vegetable Packers, 377 U.S. 58, 84 S.Ct. 1063, 12 L.Ed.2d 129. Even where the Board is sustained, its analysis in support of its conclusion is subjected to full, independent judicial review. See National Labor Relations Board v. Erie Resistor Corp., supra.
6
We do not here decide whether the case would be the same had the struck employer exercised its prerogative to hire permanent replacements for the strikers under our rule in National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, and the nonstruck employers had then hired permanent replacements for their locked-our employees.
| 67
|
380 U.S. 343
85 S.Ct. 1004
13 L.Ed.2d 882
Michael C. SANSONE, Petitioner,v.UNITED STATES.
No. 365.
Argued March 10, 1965.
Decided March 29, 1965.
Merle L. Silverstein, Clayton, Mo., for petitioner.
Paul Bender, Philadelphia, Pa., for respondent, pro hac vice, by special leave of Court.
Mr. Justice GOLDBERG delivered the opinion of the Court.
1
Petitioner Sansone was indicted for willfully attempting to evade federal income taxes for the year 1957 in violation of § 7201 of the Internal Revenue Code of 1954. Section 7201 provides:
2
'Any person who willfully attempts in any maner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution.'
3
The following facts were established at trial. In March 1956 petitioner and his wife purchased a tract of land for $22,500 and simultaneously sold a portion of the tract for $20,000. In August 1957 petitioner sold another portion of the tract for $27,000. He did not report the gain on either the 1956 or 1957 sale in his income tax returns for those years.1 Petitioner conceded that the 1957 transaction was reportable and that, in not reporting it, he understated his tax liability for that year by $2,456.48. He contended, however, that this understatement was not willful since he believed at the time that extensive repairs on a creek adjoining a portion of the tract he retained might be necessary and that the cost of these repairs might wipe out his profit on the 1957 sale.
4
To counter this defense, the Government introduced the following signed statement made by petitioner during the Treasury investigation of his tax return:
5
'I did not report the 1957 sale in our joint income tax return for 1957 because I was burdened with a number of financial obligations and did not feel I could raise the money to pay any tax due. It was my intention to report all sales in a future year and pay the tax due. I knew that I should have reported the 1957 sale, but my wife did not know that it should have been reported. It was not my intention to evade the payment of our proper taxes and I intended to pay any additional taxes due when I was financially able to do so.'
6
At the conclusion of the trial, petitioner requested that the jury be instructed that it could acquit him of the charged offense of willfully attempting to evade or defeat taxes in violation of § 7201, but still convict him of either or both of the asserted lesser-included offenses of willfully filing a fraudulent or false return, in violation of § 7207,2 or willfully failing to pay his taxes at the time required by law, in violation of § 7203.3 Section 7201 is a felony providing for a maximum fine of $10,000 and imprisonment for five years. Both §§ 7203 and 7207 are misdemeanors with maximum prison sentences of one year under each section, and maximum fines of $10,000 under § 7203 and $1,000 under § 7207.
7
The requested instructions were denied.4 Petitioner was found guilty by the jury of violating § 7201, and was sentenced by the court to pay a fine of $2,000 and to serve 15 months' imprisonment. The conviction was upheld by the Court of Appeals. 334 F.2d 287. We granted certiorari to consider the applicability of the lesser-included offense doctrine to these federal tax statutes. 379 U.S. 886, 85 S.Ct. 159, 13 L.Ed.2d 92.
I.
8
We are faced with the threshold question as to whether or not § 7207, which proscribes the willful filing with a Treasury official of any known false or fraudulent 'return,' applies to the filing of an income tax return.5 If § 7207 does not apply to income tax returns, it is obvious that the defendant was not here entitled to a lesser-included offense charge based on that section.
9
This Court held in Achilli v. United States, 353 U.S. 373, 77 S.Ct. 995, 1 L.Ed.2d 918 that § 7207's statutory predecessor, § 3616(a) of the Internal Revenue Code of 1939, which made it a misdemeanor for any person to deliver to the Collector of Revenue 'any false or fraudulent list, return, account, or statement, with intent to defeat or evade the valuation, enumeration, or assessment intended to be made * * *' (emphasis added), despite its broad language, was not intended by Congress to apply to income tax returns.
10
There were two major bases of this Court's conclusion in Achilli that § 3616(a) did not apply to such returns. First, unlike other criminal provisions clearly applicable to income taxes which appeared in the income tax chapter of the 1939 Code and were specifically designed to punish evasion of that tax, § 3616(a) was placed among the Code's 'General Administrative Provisions' and did not specifically refer to income taxes. Second, § 3616(a) required that the false or fraudulent return be filed 'with intent to defeat or evade the valuation, enumeration, or assessment intended to be made.' This provision, as the Court had already held in Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013, if applied to income tax returns would have made § 3616(a) completely co-extensive with the predecessor of § 7201 where the attempt to evade income taxes was accomplished by filing a fraudulent income tax return. It was clear that the predecessor of § 7201 applied to this method of attempting to evade income taxes and the Court was unwilling to presume that Congress intended to enact both felony and misdemeanor provisions which completely overlap in this important area.
11
Both of these bases of decision were removed by the 1954 Code. Unlike their predecessors in the 1939 Code, §§ 7201, 7203, and 7207, together with other sections clearly applicable to income tax violations, were all placed in the same section (Part I of Chapter 75) of the 1954 Code. Congress specifically stated that it placed all these provisions in the same part of the Code because it wished them to apply to taxes generally, including income taxes. See S.Rep.No.1622, 83d Cong., 2d Sess., 147; H.R.Rep.No.1337, 83d Cong., 2d Sess., 108. In contrast, Part II of Chapter 75 contains provisions applicable only to specified taxes, none of which include income taxes.
12
Further, Congress, in enacting § 7207 did not re-enact § 3616(a)'s requirement that the false or fraudulent return be made with 'intent to defeat or evade' the tax due. Thus the second basis for the Court's conclusion in Achilli that § 3616(a) did not apply to income taxes was removed. See Berra v. United States, supra, 351 U.S. at 134, n. 5, 76 S.Ct. at 688. Finally, in providing that the false or fraudulent return be made 'willfully,' § 7207 was conformed to the language contained in the other misdemeanor provisions clearly applicable to income taxes. See, e.g., § 7203.
13
We conclude, therefore, that § 7207 applies to income tax violations. Since there is no doubt that §§ 7201 and 7203 also apply to income tax violations, with obvious overlapping among them, there can be no doubt that the lesser-included offense doctrine applies to these statutes in an appropriate case. See Spies v. United States, 317 U.S. 492, 495, 63 S.Ct. 364, 366, 87 L.Ed. 418; Berra v. United States, supra.
II.
14
The basic principles controlling whether or not a lesser-included offense charge should be given in a particular case have been settled by this Court. Rule 31(c) of the Federal Rules of Criminal Procedure provides in relevant part, that the 'defendant may be found guilty of an offense necessarily included in the offense charged.' Thus, '(i)n a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justifie(s) it * * * (is) entitled to an instruction which would permit a finding of guilt of the lesser offense.' Berra v. United States, supra, at 134, 76 S.Ct. at 688. See Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980. But a lesser-offense charge is not proper where, on the evidence presented, the factual issues to be resolved by the jury are the same as to both the lesser and greater offenses. Berra v. United States, supra; Sparf v. United States, 156 U.S. 51, 63—64, 15 S.Ct. 273, 277—278, 39 L.Ed. 343. In other words, the lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater. A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense. Berra v. United States, supra; Sparf v. United States, supra, 156 U.S. at 63—64, 15 S.Ct. at 277—278.6 We now apply the principles declared in these cases to the instant case.
III.
15
The offense here charged was a violation of § 7201, which proscribes willfully attempting in any manner to evade or defeat any tax imposed by the Internal Revenue Code. As this Court has recognized, this felony provision is 'the capstone of a system of sanctions which singly or in combination were calculated to induce prompt and forthright fulfillment of every duty under the income tax law and to provide a penalty suitable to every degree of delinquency.' Spies v. United States, supra, 317 U.S. at 497, 63 S.Ct. at 367. As such a capstone, § 7201 necessarily includes among its elements actions which, if isolated from the others, constitute lesser offenses in this hierarchical system of sanctions. Therefore, if on the facts of a given case there are disputed issues of fact which would enable the jury rationally to find that, although all the elements of § 7201 have not been proved, all the elements of one or more lesser offenses have been, it is clear that the defendant is entitled to a lesser-included offense charge as to such lesser offenses.
16
As has been held by this Court, the elements of § 7201 are will-fulness; the existence of a tax deficiency, Lawn v. United States, 355 U.S. 339, 361, 78 S.Ct. 311, 323, 2 L.Ed.2d 321; Spies v. United States, supra, 317 U.S. at 496, 63 S.Ct. at 366; and an affirmative act constituting an evasion or attempted evasion of the tax, Spies v. United States, supra. In comparison, § 7203 makes it a misdemeanor willfully to fail to perform a number of specified acts at the time required by law—the one here relevant being the failure to pay a tax when due. This misdemeanor requires only willfulness and the omission of the required act—here the payment of the tax when due. As recognized by this Court in Spies v. United States, supra, 317 U.S. at 499, 63 S.Ct. at 368, the difference between a mere willful failure to pay a tax (or perform other enumerated actions) when due under § 7203 and a willful attempt to evade or defeat taxes under § 7201 is that the latter felony involves 'some willful commission in addition to the willful omissions that make up the list of misdemeanors.' Where there is, in a § 7201 prosecution, a disputed issue of fact as to the existence of the requisite affirmative commission in addition to the § 7203 omission, a defendant would, of course, be entitled to a lesser-included offense charge based on § 7203. Cf. Spies v. United States, supra. In this case, however, it is undisputed that petitioner filed a tax return and that the petitioner's filing of a false tax return constituted a sufficient affirmative commission to satisfy that requirement of § 7201. The only issue at trial was whether petitioner's act was willful. Given this affirmative commission and the conceded tax deficiency, if petitioner's act was fillful, that is, if the jury believed, as it obviously did, that he knew that the capital gain on the sale of the property was reportable in 1957, he was guilty of violating both §§ 7201 and 7203. If his act was not willful, he was not guilty of violating either § 7201 or § 7203. Thus on the facts of this case, §§ 7201 and 7203 'covered precisely the same ground.' Berra v. United States, supra, 351 U.S. at 134, 76 S.Ct. at 688. This being so, on the authorities cited, it is clear that petitioner was not entitled to a lesser-included offense charge based on § 7203.
17
Section 7207 requires the willful filing of a document known to be false or fraudulent in any material manner. The elements here involved are willfulness and the commission of the prohibited act. Section 7207 does not, however, require that the act be done as an attempt to evade or defeat taxes. Conduct could therefore violate § 7207 without violating § 7201 where the false statement, though material, does not constitute an attempt to evade or defeat taxation because it does not have the requisite effect of reducing the stated tax liability. This may be the case, for example, where a taxpayer understates his gross receipts and he offsets this by also understating his deductible expenses. In this example, if the Government in a § 7201 case charged tax evasion on the grounds that the defendant had understated his tax by understating his gross receipts, and the defendant contended that this was not so, as the misstatement of gross receipts had been offset by an understatement of deductible expenses, the defendant would be entitled to a lesserincluded offense charge based on § 7207, there being this relevant disputed issue of fact. This would be so, for in such a case, if the jury believed that an understatement of deductible expenses had offset the understatement of gross receipts, while the defendant would have violated § 7207 by willfully making a material false and fraudulent statement on his return, he would not have violated § 7201 as there would not have been the requisite § 7201 element of a tax deficiency. Here, however, there is no dispute that petitioner's material misstatement resulted in a tax deficiency. Thus there is no disputed issue of fact concerning the existence of an element required for conviction of § 7201 but not required for conviction of § 7207. Given petitioner's material misstatement which resulted in a tax deficiency, if, as the jury obviously found, petitioner's act was willful in the sense that he knew that he should have reported more income than he did for the year 1957, he was guilty of violating both §§ 7201 and 7207. If his action was not willful, he was guilty of violating neither. As was true with § 7203, on the facts of this case §§ 7201 and 7207 'covered precisely the same ground,' Berra v. United States, supra, at 134, 76 S.Ct. at 688, and thus petitioner was not entitled to a lesser-included offense charge based on § 7207.
18
Petitioner makes one final contention. He argues that he could have been acquitted of attempting to evade or defeat his 1957 taxes, in violation of § 7201, but still have been convicted for willfully failing to pay his tax when due in violation of § 7203 or willfully filing a fraudulent return in violation of § 7207, if the jury believed his statement contained in the government-introduced affidavit, that, although he knew that profit on the sale in question was reportable for 1957 and that tax was due thereon, he intended to report the sale and pay the 1957 tax at some unspecified future date. The basic premise of this argument is that, although all three sections require willfulness, on the facts here, the contents of these willfulness requirements differ. The argument is made that while an intent to report and pay the tax in the future does not vitiate the willfulness requirements of §§ 7203 and 7207, it does constitute a defense to a willful attempt 'in any manner to evade or defeat any tax imposed by' the Internal Revenue Code, in violation of § 7201. While we agree that the intent to report the income and pay the tax sometime in the future does not vitiate the willfulness required by §§ 7203 and 7207, we cannot agree that it vitiates the willfulness requirement of § 7201.
19
No defense to a § 7201 evasion charge is made out by showing that the defendant willfully and fraudulently understated his tax liability for the year involved but intended to report the income and pay the tax at some later time. As this Court has recognized, § 7201 includes the offense of willfully attempting to evade or defeat the assessment of a tax as well as the offense of willfully attempting to evade or defeat the payment of a tax. Lawn v. United States, supra. The indictment here charged an attempt to evade income taxes by defeating the assessment for 1957. The fact that petitioner stated to a revenue agent that he intended to report his 1957 income in some later year, even if taken at face value, would not detract from the criminality of his willful act defeating the 1957 assessment. That crime was complete as soon as the false and fraudulent understatement of taxes (assuming, of course, that there was in fact a deficiency) was filed. See United States v. Beacon Brass Co., 344 U.S. 43, 46, 73 S.Ct. 77, 79. See also Spies v. United States, supra, 317 U.S. at 498—499, 63 S.Ct. at 367—368.
20
In sum, it is clear here that there were no disputed issues of fact which would justify instructing the jury that it could find that petitioner had committed all the elements of either or both of the §§ 7203 and 7207 misdemeanors without having committed a violation of the § 7201 felony. This being the case, the petitioner was not entitled to a lesser-included offense charge and the judgment of the Court of Appeals is
21
Affirmed.
22
Mr. Justice BLACK and Mr. Justice DOUGLAS dissent, believing that there was evidence sufficient to require the Court to charge the jury, as petitioner requested, that they could acquit him on this felony charge of having willfully attempted to evade or defeat taxes in violation of § 7201 but still convict him of the lesser misdemeanor offenses included in the felony charge. See Berra v. United States, 351 U.S. 131, 135, 76 S.Ct. 685, 688 (dissenting opinion). Cf. Achilli v. United States, 353 U.S. 373, 379, 77 S.Ct. 995, 998 (dissenting opinion).
1
Petitioner was charged with a violation of § 7201 for 1956 in addition to the charge for 1957. The jury acquitted him with respect to the 1956 charge, which is consequently not involved in this case.
2
Section 7207 of the Internal Revenue Code of 1954 provides:
'Any person who willfully delivers or discloses to the Secretary or his delegate any list, return, account, statement, or other document, known by him to be fraudulent or to be false as to any material matter, shall be fined not more than $1,000, or imprisoned not more than 1 year, or both.'
3
Section 7203 of the Internal Revenue Code of 1954 provides:
'Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return (other than a return required under authority of section 6015 or section 6016), keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 1 year, or both, together with the costs of prosecution.'
4
The full instructions requested by petitioner were as follows:
No. 1. 'Under the law you may find a defendant guilty of a lesser crime than the crimes charged in the indictment.
'A statute upon which a lesser crime is based (Section 7203 of the Internal Revenue Code of 1954), omitting that part of the Act which does not apply in this case, reads as follows:
"Any person required under this title to pay any * * * tax, * * * who willfully fails to pay such tax, * * * at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor.'
'and then the statute provides for the penalty.
'Therefore, if you find beyond a reasonable doubt that (with respect to either or both of the counts in this indictment) the defendant willfully failed to pay the correct tax to the United States at the time of the filing of his return, but you further find that the defendant did not willfully attempt to defeat and evade his income taxes by the filing of a false and fraudulent return, you will in your verdict say 'Guilty of violating a lesser-included offense.'
'If you have a reasonable doubt as to whether defendant willfully failed to pay the correct tax when filing his income tax return or returns under any count or counts of this indictment, you will resolve the doubt in favor of the defendant and acquit him of the lesser-included offense as to such count or counts.'
No. 2. 'As I have said previously, the law permits the jury to find a defendant guilty of any lesser offense which is necessarily included in the crime charged. The offense charged in the indictment here necessarily includes a lesser offense based upon the following statute (Section 7207 of the Internal Revenue Code of 1954), omitting that part of the Act which does not apply in this case; it reads as follows:
"Any person who willfully delivers or discloses to the Secretary (of the Treasury) or his delegate any * * * return, * * * or other document known by him to be fraudulent or to be false as to any material matter,' 'and then the statute provides for the penalty.
'Therefore, if you find beyond a reasonable doubt that (with respect to either or both of the counts in this indictment) the defendant willfully delivered to the District Director of Internal Revenue at St. Louis, Missouri his and his wife's federal joint income tax return or returns for the years 1956 and 1957 which were known by him to be fraudulent or false as to any material matter, but you further find that the defendant did not willfully attempt to defeat and evade his income tax by the filing of a false and fraudulent return, you will in your verdict say 'Guilty of violating a lesser-included offense.'
'If you have a reasonable doubt as to whether defendant willfully so delivered under any count or counts of this indictment his and his wife's federal joint income tax return or returns which were known by him to be fraudulent or false as to a material matter, you will resolve the doubt in favor of the defendant and acquit him of the lesser-included offense as to such count or counts.'
5
This issue divided the Court of Appeals, with two judges holding that § 7207 does not apply to false income tax returns and one judge, concurring in result, dissenting on this point.
6
This Court has long recognized that to hold otherwise would only invite the jury to pick between the felony and the misdemeanor so as to determine the punishment to be imposed, a duty Congress has traditionally left to the judge. See Sparf v. United States, supra, at 63—64, 15 S.Ct. at 277—278; Berra v. United States, supra, 351 U.S. at 135, 76 S.Ct. at 688. This general principle is particularly applicable in this area. In commenting on § 7201, the House Ways and Means Committee expressly stated that minimum penalties were omitted from § 7201 in order to make it 'possible for the judges to better fix the penalties to fit the circumstances.' H.R.Rep. No. 1337, 83d Cong., 2d Sess., 108. The lack of minimum penalties also, of course, denies to the prosecutor an unbridled discretion as to the penalty to be imposed upon particular defendants by deciding whether, on the same facts, to charge a felony or a misdemeanor.
| 01
|
380 U.S. 415
85 S.Ct. 1074
13 L.Ed.2d 934
Jesse Elliott DOUGLAS, Petitioner,v.STATE OF ALABAMA.
No. 313.
Argued March 9 and 10, 1965.
Decided April 5, 1965.
Charles Cleveland, Birmingham, Ala., for petitioner.
Paul T. Gish, Jr., Montgomery, Ala., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The petitioner and one Loyd were tried separately in Alabama's Circuit Court on charges of assault with intent to murder. Loyd was tried first and was found guilty. The State then called Loyd as a witness at petitioner's trial. Because Loyd planned to appeal his conviction, his lawyer, who also represented petitioner, advised Loyd to rely on the privilege against self-incrimination and not to answer any questions. When Loyd was sworn, the lawyer objected, on self-incrimination grounds, 'to this witness appearing on the stand,' but the objection was overruled. Loyd gave his name and address but, invoking the privilege, refused to answer any questions concerning the alleged crime. The trial judge ruled that Loyd could not rely on the privilege because of his conviction, and ordered him to answer, but Loyd persisted in his refusal.1 The judge thereupon granted the State Solicitor's motion 'to declare (Loyd) a hostile witness and give me the privilege of cross-examination.' The Solicitor then produced a document said to be a confession signed by Loyd. Under the guise of cross-examination to refresh Loyd's recollection, the Solicitor purported to read from the document, pausing after every few sentences to ask Loyd, in the presence of the jury, 'Did you make that statement?' Each time, Loyd asserted the privilege and refused to answer, but the Solicitor continued this form of questioning until the entire document had been read.2 The Solicitor then called three law enforcement officers who identified the document as embodying a confession made and signed by Loyd. Although marked as an exhibit for identification, the document was not offered in evidence.
2
This procedure, petitioner argues, violated his rights under the Confrontation Clause of the Sixth Amendment as applied to the States. The statements from the document as read by the Solicitor recited in considerable detail the circumstances leading to and surrounding the alleged crime; of crucial importance, they named the petitioner as the person who fired the shotgun blast which wounded the victim.3 The jury found petitioner guilty. The Court of Appeals of Alabama affirmed, 42 Ala.App. 314, 163 So.2d 477. Although stating that Loyd's alleged confession was inadmissible in evidence against petitioner under state law because '(t)here must be confrontation face to face to allow viva voce cross-examination before the jury,' and noting that 'it might be claimed that the repeated and cumulative use of the confession might have been an indirect mode of getting the inadmissible confession in evidence,' the Court of Appeals affirmed petitioner's conviction on the ground that petitioner's counsel had 'stopped objecting' and that in that circumstance, 'the failure to object was waiver.' 42 Ala.App., at 329, 332, 163 So.2d, at 493, 495. The Supreme Court of Alabama denied review, 276 Ala. 703, 163 So.2d 496. We granted certiorari, 379 U.S. 815, 85 S.Ct. 77, 13 L.Ed.2d 28. We reverse.
I.
3
We decide today that the Confrontation Clause of the Sixth Amendment is applicable to the States. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065. Our cases construing the clause hold that a primary interest secured by it is the right of cross-examination; an adequate opportunity for cross-examination may satisfy the clause even in the absence of physical confrontation. As the Court said in Mattox v. United States,
4
'The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits * * * being used against the prisoner 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. 237, 242—243, 15 S.Ct. 337, 339, 39 L.Ed. 409.
5
See also 5 Wigmore, Evidence §§ 1365, 1397 (3d ed. 1940); State v. Hester, 137 S.Ct. 145, 189, 134 S.E. 885, 900 (1926).
6
In the circumstances of this case, petitioner's inability to cross-examine Loyd as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause. Loyd's alleged statement that the petitioner fired the shotgun constituted the only direct evidence that he had done so; coupled with the description of the circumstances surrounding the shooting, this formed a crucial link in the proof both of petitioner's act and of the requisite intent to murder. Although the Solicitor's reading of Loyd's alleged statement, and Loyd's refusals to answer, were not technically testimony, the Solicitor's reading may well have been the equivalent in the jury's mind of testimony that Loyd in fact made the statement; and Loyd's reliance upon the privilege created a situation in which the jury might improperly infer both that the statement had been made and that it was true. Slochower v. Board of Higher Education, 350 U.S. 551, 557—558, 76 S.Ct. 637, 640—641, 100 L.Ed. 692; United States v. Maloney, 262 F.2d 535, 537 (C.A.2d Cir. 1959). Since the Solicitor was not a witness, the inference from his reading that Loyd made the statement could not be tested by cross-examination. Similarly, Loyd could not be cross-examined on a statement imputed to but not admitted by him. Nor was the opportunity to cross-examine the law enforcement officers adequate to redress this denial of the essential right secured by the Confrontation Clause. Indeed, their testimony enhanced the danger that the jury would treat the Solicitor's questioning of Loyd and Loyd's refusal to answer as proving the truth of Loyd's alleged confession. But since their evidence tended to show only that Loyd made the confession, cross-examination of them as to its genuineness could not substitute for cross-examination of Loyd to test the truth of the statement itself. Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150; cf. Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890.
7
Hence, effective confrontation of Loyd was possible only if Loyd affirmed the statement as his. However, Loyd did not do so, but relied on his privilege to refuse to answer. We need not decide whether Loyd properly invoked the privilege in light of his conviction. It is sufficient for the purposes of deciding petitioner's claim under the Confrontation Clause that no suggestion is made that Loyd's refusal to answer was procured by the petitioner, see Motes v. United States, supra, 178 U.S. at 471, 20 S.Ct. at 998; on this record it appears that Loyd was acting entirely in his own interests in doing so. This case cannot be characterized as one where the prejudice in the denial of the right of cross-examination constituted a mere minor lapse. The alleged statements clearly bore on a fundamental part of the State's case against petitioner. The circumstances are therefore such that 'inferences from a witness' refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.' Namet v. United States, 373 U.S. 179, 187, 83 S.Ct. 1151, 1155, 10 L.Ed.2d 278, See also Fletcher v. United States, 118 U.S.App.D.C. 137, 332 F.2d 724 (1964).
II.
8
We cannot agree with the Alabama Court of Appeals that petitioner's counsel waived the right to confrontation through failure to make sufficient objection to the reading of Loyd's alleged confession. The court stated: 'There must be a ruling sought and acted on before the trial judge can be put in error. Here there was no ruling asked or invoked as to the questions embracing the alleged confession.' 42 Ala.App., at 332, 163 So.2d, at 495. Yet, as the colloquy set out in the margin shows, petitioner's counsel did object three times to the reading of the confession before the jury.4 After the second time, the Solicitor assured him that he already had an objection in—plainly implying that further objection to the reading of the document was unnecessary. The grund for objection to later questions would have been the same, that the confession was being read to the jury. In light of this record it is difficult to understand the Court of Appeals' conclusion; nevertheless, accepting the finding as an authoritative interpretation of Alabama law, we follow our consistent holdings that the adequacy of state procedural bars to the assertion of federal questions is itself a federal question. See Wright v. Georgia, 373 U.S. 284, 289—291, 83 S.Ct. 1240, 1243 1245, 10 L.Ed.2d 349. In determining the sufficiency of objections we have applied the general principle that an objection which is ample and timely to bring the alleged federal error to the attention of the trial court and enable it to take appropriate corrective action is sufficient to serve legitimate state interests, and therefore sufficient to preserve the claim for review here. Davis v. Wechsler, 263 U.S. 22, 24, 44 S.Ct. 13, 14, 68 L.Ed. 143; Love v. Griffith, 266 U.S. 32, 33—34, 45 S.Ct. 12, 69 L.Ed. 157. No legitimate state interest would have been served by requiring repetition of a patently futile objection, already thrice rejected, in a situation in which repeated objection might well affront the court or prejudice the jury beyond repair. Too, after the confession was read, the defense moved to exclude it; it then moved for a mistrial and for a new trial; all three motions were denied. After two of the three law enforcement officers had testified, the defense renewed its objections to the hearsay references in Loyd's alleged confession and again was overruled. On these facts, it is clear that the defense brought the objection to the attention of the court at several points, at any of which corrective action could have been taken by stopping the questioning, excusing the jury, or excluding the evidence. To the extent that the Alabama rule requires objection after each and every question in this prolonged series, it is plainly inadequate to bar our review of the federal question presented.
9
Reversed and remanded.
10
Mr. Justice HARLAN, concurring in the result.
11
For reasons stated in the opinion of the Court, I agree that petitioner was denied a right of 'confrontation' embodied in the concept of ordered liberty. I concur in the judgment of reversal on the premises stated in my opinion concurring in the result in Pointer v. Texas, 380 U.S., p. 408, 85 S.Ct., p. 1070, decided today.
12
Mr. Justice STEWART, concurring in the result.
13
The Court says that what happened in this case violated the petitioner's 'rights under the Confrontation Clause of the Sixth Amendment as applied to the States.' I concur in the Court's judgment, because I think the petitioner was deprived of his liberty without due process of law in violation of the Fourteenth Amendment. This difference in view is, of course, far more than a matter of mere semantics. See my opinion concurring in the result in Pointer v. Texas, 380 U.S., p. 409, 85 S.Ct., p. 1071.
1
Loyd had not been sentenced at the time of petitioner's trial. The trial judge initially threatened to hold Loyd in contempt for persisting in his refusal to answer after the judge had ruled that Loyd could not rely on the privilege since 'the jury has already determined your guilt.' However, the judge did not proceed with the contempt citation but interrupted petitioner's trial to sentence Loyd to 20 years' imprisonment.
2
There were 21 questions occupying seven pages in the printed record.
3
Two of the Solicitor's questions were as follows:
'Did you make the further statement, 'We intended to shoot these trucks before they got to Centreville, but when we turned and went back north and passed the trucks again I was unable to bring myself to the point of shooting the trucks. After we passed the trucks this time we turned around and went south again toward Centreville, Alabama. These trucks were both stopped at a truck stop in Centreville where we passed them again and we proceeded on south on No. 5 about twenty miles. We sat alongside of the highway waiting for the trucks to come on and several trucks passed us, so we thought we ought to move before someone recognized us. We went back north again and saw a station wagon that looked suspicious so we turned off No. 5 onto 16. We drove over this route about six or eight miles and pulled in behind a church. We sat there for about five minutes and then heard what sounded like two trucks together going south on No. 5. We thought this was the two trucks and we went back to No. 5. When we got to No. 5 I told Douglas that I would drive and he said that was fine because I knew the car better than he. I drove on until we caught these trucks about five or eight miles above the junction of No. 5 and No. 80 and we passed them proceeding on to the junction where we turned around and headed back north to meet these trucks. Jesse Douglas was in the back seat with the automatic shotgun that belongs to B. F. Jackson and had it loaded with buckshot. He rolled down the window and when we passed these trucks he shot the lead truck as we passed them heading back north as they were coming south. We then went on to Highway 14, turned left and went into Greensboro, Alabama. We turned left in Greensboro on No. 69, drove south about five miles and realized we were going the wrong direction to go to Tuscaloosa, Alabama. We turned around and went back up to No. 69 to Tuscaloosa.' Did you make that statement?'
'Were you asked the question, 'How many shots were fired at the truck?' And your answer, 'Only one.' Did you say that?'
4
The following occurred:
'Q. Is that your signature (showing witness signature on confession)?
'A. I'm not sure.
'Q. I will ask you if on January 20, 1962—
'Mr. Esco: (Interrupting) If your Honor please, I object to the reading of any document or purported confession,—
'Mr. McLeod: (Interrupting) This is cross-examination.
'The Court: Hostile witness. Overrule.
'Mr. Esco: We except, if you please.
'Q. I will ask you if on the night of January 20, 1962, in Selma, Alabama, in the Dallas County jail if you didn't make the following statement: (reading 'I, Olen Ray Loyd, make the—'
'Mr. Esco: (Interrupting) I object to this being read in the presence of the jury.
'Mr. McLeod: You've already got an objection in there.
'Mr. Esco: I object to this being read in the presence of the jury.
'The Court: Overrule.
'Mr. Esco: We except.'
'After the questions were read, defense counsel renewed his objections:
'Mr. Esco: I'd first like to object to the reading of this purported confession on the grounds that it is hearsay evidence, that it was made outside the hearing of this defendant, it was not subject to cross-examination, and we move to exclude it from the evidence.
'The Court: The Court will deny your motion.
'Mr. Esco: We except, if you please. And at this time, your Honor, we make a motion for a mistrial on the grounds that this jury has been so prejudiced from these proceedings, and from the attempts of the prosecution to use illegal evidence, that no fair and just verdict whatsoever could come from a jury that has been so prejudiced.
'The Court: Motion is denied.
'Mr. Esco: We except, if you please.
'Mr. Esco: We would like to make a motion for a new trial on the grounds that the proceedings have been very irregular here today and we feel that it has been prejudicial to this defendant.
'The Court: * * * Your objection is overruled.
'Mr. Esco: It is a motion, your Honor.
'The Court: Your motion is overruled.
'Mr. Esco: We except, if you please.'
| 01
|
380 U.S. 374
85 S.Ct. 1035
13 L.Ed.2d 904
FEDERAL TRADE COMMISSION, Petitioner,v.COLGATE-PALMOLIVE CO. et al.
No. 62.
Argued Dec. 10, 1964.
Decided April 5, 1965.
[Syllabus from pages 374-375 intentionally omitted]
Philip B. Heymann, Washington, D.C., for petitioner.
John F. Sonnett, New York City, for respondents.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The basic question before us is whether it is a deceptive trade practice, prohibited by § 5 of the Federal Trade Commission Act,1 to represent falsely that a televised test, experiment, or demonstration provides a viewer with visual proof of a product claim, regardless of whether the product claim is itself true.
2
The case arises out of an attempt by respondent Colgate-Palmolive Company to prove to the television public that its shaving cream, 'Rapid Shave,' out-shaves them all. Respondent Ted Bates & Company, Inc., an advertising agency, prepared for Colgate three one-minute commercials designed to show that Rapid Shave could soften even the toughness of sandpaper. Each of the commercials contained the same 'sandpaper test.' The announcer informed the audience that, 'To prove RAPID SHAVE'S super-moisturizing power, we put it right from the can onto this tough, dry sandpaper. It was apply * * * soak * * * and off in a stroke.' While the announcer was speaking, Rapid Shave was applied to a substance that appeared to be sandpaper, and immediately thereafter a razor was shown shaving the substance clean.
3
The Federal Trade Commission issued a complaint against respondents Colgate and Bates charging that the commercials were false and deceptive. The evidence before the hearing examiner disclosed that sandpaper of the type depicted in the commercials could not be shaved immediately following the application of Rapid Shave, but required a substantial soaking period of approximately 80 minutes. The evidence also showed that the substance resembling sandpaper was in fact a simulated prop, or 'mock-up,' made of plexiglass to which sand had been applied. However, the examiner found that Rapid Shave could shave sandpaper, even though not in the short time represented by the commercials, and that if real sandpaper had been used in the commercials the inadequacies of television transmission would have made it appear to viewers to be nothing more than plain, colored paper. The examiner dismissed the complaint because neither misrepresentation—concerning the actual moistening time or the identity of the shaved substance—was in his opinion a material one that would mislead the public.
4
The Commission, in an opinion dated December 29, 1961, reversed the hearing examiner. It found that since Rapid Shave could not shave sandpaper within the time depicted in the commercials, respondents had misrepresented the product's moisturizing power. Moreover, the Commission found that the undisclosed use of a plexiglass substitute for sandpaper was an additional material misrepresentation that was a deceptive act separate and distinct from the misrepresentation concerning Rapid Shave's underlying qualities. Even if the sandpaper could be shaved just as depicted in the commercials, the Commission found that viewers had been misled into believing they had seen it done with their own eyes. As a result of these findings the Commission entered a cease-and-desist order against the respondents.
5
An appeal was taken to the Court of Appeals for the First Circuit which rendered an opinion on November 20, 1962, 310 F.2d 89. That court sustained the Commission's conclusion that respondents had misrepresented the qualities of Rapid Shave, but it would not accept the Commission's order forbidding the future use of undisclosed simulations in television commercials. It set aside the Commission's order and directed that a new order be entered. On May 7, 1963, the Commission, over the protest of respondents, issued a new order narrowing and clarifying its original order to comply with the court's mandate. The Court of Appeals again found unsatisfactory that portion of the order dealing with simulated props and refused to enforce it, 326 F.2d 517. We granted certiorari, 377 U.S. 942, 84 S.Ct. 1352, 12 L.Ed.2d 306, to consider this aspect of the case and do not have before us any question concerning the misrepresentation that Rapid Shave could shave sandpaper immediately after application, that being conceded.
I.
6
A threshold question presented is whether the petition for certiorari was filed within 90 days after the entry of the judgment below as required by 28 U.S.C. § 2101(c) (1958 ed.). Respondents claim that the failure of the Commission to seek certiorari from the judgment of the Court of Appeals rendered on November 20, 1962, barred a subsequent order prohibiting the use of simulated props in commercials that offer visual proof of a product claim.
7
After a court of appeals has set aside an order of the Commission on a point of law, the Commission may seek certiorari if it disagrees with the court's legal conclusion. Section 5(i) of the Federal Trade Commission Act2 contemplates that when the time for filing a petition for certiorari has passed without a petition being filed, the Commission will enter an order in accordance with the mandate of the court of appeals. The Commission may not merely restate its former position in a new order and then apply for certiorari when the court of appeals reiterates its previous objection. As was said in Federal Power Comm. v. Idaho Power Co., 344 U.S. 17, 20, 73 S.Ct. 85, 86, 97 L.Ed. 15, 'If the court did no more by the second judgment than to restate what it had decided by the first one * * * the 90 days would start to run from the first judgment.' To the same effect see Federal Trade Comm. v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211, 73 S.Ct. 245, 248, 97 L.Ed. 245. However, it has also been held that when a reviewing court finds a legal error in an administrative order, the agency is not foreclosed upon the remand of the case from enforcing the legislative policy of the act it administers, provided the new order does not conflict with the reviewing court's mandate.3
8
Obviously, the court which drafted the mandate is normally in the best position to determine whether the Commission's subsequent order is consistent with the mandate, but this Court is never foreclosed from determining the issue for itself.4 The resolution of this issue in the present case requires a detailed analysis of the various opinions, mandates and orders issued by the Commission and the Court of Appeals.
9
In its initial opinion, dated December 29, 1961, the Commission commented that the heart of the commercials was the visual 'sandpaper test' which was designed to leave the viewer with the impression that he had actually seen such an experiment being performed. The Commission expressed the view that without this visible proof of Rapid Shave's moisturizing ability some viewers might not have been persuaded to buy the product. The Commission then entered into a far-reaching discussion on the use of mock-ups in television and the relationship between 'truth' and 'television salesmanship,' and finally concluded that the use of the plexiglass prop was a deceptive practice. The Commission's order was as inclusive as its discussion. It ordered both respondents to cease and desist from:
10
'Representing, directly or by implication, in describing, explaining, or purporting to prove the quality or merits of any product, that pictures, depictions, or demonstrations * * * are genuine or accurate representations * * * of, or prove the quality or merits of, any product, when such pictures, depictions, or demonstrations are not in fact genuine or accurate representations * * * of, or do not prove the quality or merits of, any such product.'5 (Emphasis added.)
11
The Court of Appeals understandably was concerned with the broad language in the Commission's opinion and order, especially since the Commission was not dealing with an established deceptive practice but was applying the flexible standards of § 5 to a hitherto unexplored area. The breadth of the Commission's order was potentially limitless, apparently establishing a per se rule prohibiting the use of simulated props in all television commercials, since commercials by definition describe 'the qualities or merits' of products. The court's impression that the order was 'quite ambiguous' was not alleviated when in oral argument counsel for the Commission stated that if a prominent person appeared on television saying 'I love Lipsom's iced tea,' while drinking something that appeared to be tea but in fact was not, the commercial would be a deceptive practice.
12
In light of the Commission's order and its oral argument, the court concluded that it was the Commission's intention to prohibit all simulated props in television commercials. The court could not agree with this position since it believed that 'where the only untruth is that the substance (the viewer) sees on the screen is artificial, and the visual appearance is otherwise a correct and accurate representation of the product itself, he is not injured.'6 But, in setting aside the Commission's order, the court gave little specific guidance for the drafting of a new one. It merely criticized the Commission for holding that mock-ups are 'illegal per se.'7 and indicated that the Commission's order 'may' have been too broad in other respects as well.
13
Following the decision by the Court of Appeals, the Commission entered a new 'proposed final order' on February 18, 1963. This order was accompanied by an explanatory opinion that admitted error in the original disposition of the case and expressed an intention to eliminate the errors found by the Court of Appeals. The Commission explained that its new order was not directed toward the broad prohibition of all undisclosed simulated props in commercials, but merely toward prohibiting respondents from misrepresenting to the public that it was seeing for itself a test, experiment or demonstration which purportedly proved a product claim. According to the Commission, the television commercial in question did not merely tell viewers that the experiment had been or could be performed, but instead told them that they were seeing it for themselves and did not have to take the seller's word for it. This, and not the mere use of a prop, was the misrepresentation found to be a deceptive practice. Over the vigorous objection of respondents, the Commission issued its final order on May 7, 1963. Both respondents were ordered to cease and desist from:
14
'Unfairly or deceptively advertising any * * * product by presenting a test, experiment or demonstration that (1) is represented to the public as actual proof of a claim made for the product which is material to inducing its sale, and (2) is not in fact a genuine test, experiment or demonstration being conducted as represented and does not in fact constitute actual proof of the claim, because of the undisclosed use and substitution of a mock-up or prop instead of the product, article, or substance represented to be used therein.'8
15
Respondents again appealed to the Court of Appeals. Despite the urgings of respondents that it limit its review to a determination whether the Commission's order was consistent with the previous mandate, the court re-examined the Commission's new order on the merits. The court recognized that the new order no longer prohibited the use of all simulated props in commercials, but found that it would be impossible under it to distinguish between commercials which depicted a test, experiment or demonstration, and those which did not. The court held that so long as there is an accurate portrayal of a product's attributes or performance there is no deceit and instructed the Commission, 'as we thought we had directed it before,'9 to enter an order merely prohibiting respondents from using mock-ups to demonstrate something which in fact could not be accomplished.
16
We hold that the Commission's order of May 7, 1963, was not in disregard of the Court of Appeals' first mandate and was a good-faith attempt to incorporate the legal principles contained therein. An examination of the Commission's first order and accompanying opinion shows an overriding emphasis on mock-ups as such and a failure to articulate with precision the actual deceptive practice found. As a result, it is not surprising that the court criticized the order as 'ambiguous,' interpreted it as prohibiting the substitution of a mock-up for a product in any commercial, and found that it rested on a premise that mock-ups were 'illegal per se.' It is true that the court also said that viewers are interested in what they see and not in the means by which they see it, but this statement occurred immediately after the court discussed the contention in oral argument that it would be a deceptive practice to represent that a person was drinking 'Lipsom's iced tea' when in fact he was not. The only clear directive in the court's mandate was for the Commission to remove the 'fundamental error (which) so permeates the order'10—i.e., the error that every use of mock-ups is a deceptive practice.
17
We find it inconceivable that the Commission could have successfully sought certiorari from this judgment. Had it done so, it would have been forced to argue either that every use of mock-ups in commercials is a deceptive practice, an apparently unintended theory, or that this Court should reinstate the Commission's decision on a theory of its own, something the Court said it would not do in Securities & Exchange Comm. v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 1760, 91 L.Ed. 1995.
18
Support is given our conclusion by the refusal of the Court of Appeals to declare that the Commission's subsequent order was inconsistent with the previous mandate. However, even if the first opinion of the Court of Appeals could somehow be construed to hold as a matter of law that it is never a deceptive practice to use undisclosed props in a commercial designed to convince a viewer that he is seeing for himself proof of a seller's claims, we find that the Commission acted reasonably in construing the mandate more narrowly. The Commission's vague first order had spawned a correspondingly vague opinion by the Court of Appeals. If the court meant its first opinion to say more than we have attributed to it, it was not until the second opinion that the court clearly articulated its reasoning. Therefore, at the least the court's second opinion resolved a genuine ambiguity in the first, and the time within which certiorari had to be requested dates from the second judgment. See Federal Trade Comm. v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211, 73 S.Ct. 245, 248, 97 L.Ed. 245.
II.
19
In reviewing the substantive issues in the case, it is well to remember the respective roles of the Commission and the courts in the administration of the Federal Trade Commission Act. When the Commission was created by Congress in 1914, it was directed by § 5 to prevent '(u)nfair methods of competition in commerce.'11 Congress amended the Act in 1938 to extend the Commission's jurisdiction to include 'unfair or deceptive acts or practices in commerce'12—a significant amendment showing Congress' concern for consumers as well as for competitors. It is important to note the generality of these standards of illegality; the proscriptions in § 5 are flexible, 'to be defined with particularity by the myriad of cases from the field of business.' Federal Trade Comm. v. Motion Picture Advertising Service Co., 344 U.S. 392, 394, 73 S.Ct. 361, 363, 97 L.Ed. 426.
20
This statutory scheme necessarily gives the Commission an influential role in interpreting § 5 and in applying it to the facts of particular cases arising out of unprecedented situations. Moreover, as an administrative agency which deals continually with cases in the area, the Commission is often in a better position than are courts to determine when a practice is 'deceptive' within the meaning of the Act. This Court has frequently stated that the Commission's judgment is to be given great weight by reviewing courts.13 This admonition is especially true with respect to allegedly deceptive advertising since the finding of a § 5 violation in this field rests so heavily on inference and pragmatic judgment. Nevertheless, while informed judicial determination is dependent upon enlightenment gained from administrative experience, in the last analysis the words 'deceptive practices' set forth a legal standard and they must get their final meaning from judicial construction. Cf. Federal Trade Comm. v. R. F. Keppel & Bro., Inc., 291 U.S. 304, 314, 54 S.Ct. 423, 427, 78 L.Ed. 814.
21
We are not concerned in this case with the clear misrepresentation in the commercials concerning the speed with which Rapid Shave could shave sandpaper, since the Court of Appeals upheld the Commission's finding on that matter and the respondents have not challenged the finding here. We granted certiorari to consider the Commission's conclusion that even if an advertiser has himself conducted a test, experiment or demonstration which he honestly believes will prove a certain product claim, he may not convey to television viewers the false impression that they are seeing the test, experiment or demonstration for themselves, when they are not because of the undisclosed use of mock-ups.
22
We accept the Commission's determination that the commercials involved in this case contained three representations to the public: (1) that sandpaper could be shaved by Rapid Shave; (2) that an experiment had been conducted which verified this claim; and (3) that the viewer was seeing this experiment for himself. Respondents admit that the first two representations were made, but deny that the third was. The Commission, however, found to the contrary, and, since this is a matter of fact resting on an inference that could reasonably be drawn from the commercials themselves, the Commission's finding should be sustained.14 For the purposes of our review, we can assume that the first two representations were true; the focus of our consideration is on the third which was clearly false. The parties agree that § 5 prohibits the intentional misrepresentation of any fact which would constitute a material factor in a purchaser's decision whether to buy.15 They differ, however, in their conception of what 'facts' constitute a 'material factor' in a purchaser's decision to buy. Respondents submit, in effect, that the only material facts are those which deal with the substantive qualities of a product.16 The Commission, on the other hand, submits that the misrepresentation of any fact so long as it materially induces a purchaser's decision to buy is a deception prohibited by § 5.
23
The Comission's interpretation of what is a deceptive practice seems more in line with the decided cases than that of respondents. This Court said in Federal Trade Comm. v. Algoma Lumber Co., 291 U.S. 67, 78, 54 S.Ct. 315, 320, 78 L.Ed. 655: '(T)he public is entitled to get what it chooses, though the choice may be dictated by caprice or by fashion or perhaps by ignorance.' It has long been considered a deceptive practice to state falsely that a product ordinarily sells for an inflated price but that it is being offered at a special reduced price, even if the offered price represents the actual value of the product and the purchaser is receiving his money's worth.17 Applying respondents' arguments to these cases, it would appear that so long as buyers paid no more than the product was actually worth and the product contained the qualities advertised, the misstatement of an inflated original price was immaterial.
24
It has also been held a violation of § 5 for a seller to misrepresent to the public that he is in a certain line of business, even though the misstatement in no way affects the qualities of the product. As was said in Federal Trade Comm. v. Royal Milling Co., 288 U.S. 212, 216, 53 S.Ct. 335, 336, 77 L.Ed. 706:
25
'If consumers or dealers prefer to purchase a given article because it was made by a particular manufacturer or class of manufacturers, they have a right to do so, and this right cannot be satisfied by imposing upon them an exactly similar article, or one equally as good, but having a different origin.'
26
The courts of appeals have applied this reasoning to the merchandising of reprocessed products that are as good as new, without a disclosure that they are in fact reprocessed.18 And it has also been held that it is a deceptive practice to misappropriate the trade name of another.19
27
Respondents claim that all these cases are irrelevant to our decision because they involve misrepresentations related to the product itself and not merely to the manner in which an advertising message is communicated. This distinction misses the mark for two reasons. In the first place, the present case is not concerned with a mode of communication, but with a misrepresentation that viewers have objective proof of a seller's product claim over and above the seller's word. Secondly, all of the above cases, like the present case, deal with methods designed to get a consumer to purchase a product, not with whether the product, when purchased, will perform up to expectations. We find an especially strong similarity between the present case and those cases in which a seller induces the public to purchase an arguably good product by misrepresenting his line of business, by concealing the fact that the product is reprocessed, or by misappropriating another's trademark. In each the seller has used a misrepresentation to break down what he regards to be an annoying or irrational habit of the buying public—the preference for particular manufacturers or known brands regardless of a product's actual qualities, the prejudice against reprocessed goods, and the desire for verification of a product claim. In each case the seller reasons that when the habit is broken the buyer will be satisfied with the performance of the product he receives. Yet, a misrepresentation has been used to break the habit and, as was stated in Algoma Lumber, a misrepresentation for such an end is not permitted.
28
We need not limit ourselves to the cases already mentioned because there are other situations which also illustrate the correctness of the Commission's finding in the present case. It is generally accepted that it is a deceptive practice to state falsely that a product has received a testimonial from a respected source.20 In addition, the Commission has consistently acted to prevent sellers from falsely stating that their product claims have been 'certified.'21 We find these situations to be indistinguishable from the present case. We can assume that in each the underlying product claim is true and in each the seller actually conducted an experiment sufficient to prove to himself the truth of the claim. But in each the seller has told the public that it could rely on something other than his word concerning both the truth of the claim and the validity of his experiment. We find it an immaterial difference that in one case the viewer is told to rely on the word of a celebrity or authority he respects, in another on the word of a testing agency, and in the present case on his own perception of an undisclosed simulation.
29
Respondents again insist that the present case is not like any of the above, but is more like a case in which a celebrity or independent testing agency has in fact submitted a written verification of an experiment actually observed, but, because of the inability of the camera to transmit accurately an impression of the paper on which the testimonial is written, the seller reproduces it on another substance so that it can be seen by the viewing audience. This analogy ignores the finding of the Commission that in the present case the seller misrepresented to the public that it was being given objective proof of a product claim. In respondents' hypothetical the objective proof of the product claim that is offered, the word of the celebrity or agency that the experiment was actually conducted, does exist; while in the case before us the objective proof offered, the viewer's own perception of an actual experiment, does not exist. Thus, in respondents' hypothetical, unlike the present case, the use of the undisclosed mock-up does not conflict with the seller's claim that there is objective proof.
30
We agree with the Commission, therefore, that the undisclosed use of plexiglass in the present commercials was a material deceptive practice, independent and separate from the other misrepresentation found. We find unpersuasive respondents' other objections to this conclusion. Respondents claim that it will be impractical to inform the viewing public that it is not seeing an actual test, experiment or demonstration, but we think it inconceivable that the ingenious advertising world will be unable, if it so desires, to conform to the Commission's insistence that the public be not misinformed. If, however, it becomes impossible or impractical to show simulated demonstrations on television in a truthful manner, this indicates that television is not a medium that lends itself to this type of commercial, not that the commercial must survive at all costs. Similarly unpersuasive is respondents' objection that the Commission's decision discriminates against sellers whose product claims cannot be 'verified' on television without the use of simulations. All methods of advertising do not equally favor every seller. If the inherent limitations of a method do not permit its use in the way a seller desires, the seller cannot by material misrepresentation compensate for those limitations.
31
Respondents also claim that the Commission reached out to decide a question not properly before it and has presented this Court with an abstract question. They argue that since the commercials in the present case misrepresented the time element involved in shaving sandpaper, this Court should not consider the additional misrepresentation that the public had objective proof of the seller's claim. As we have already said, these misrepresentations are separate and distinct, and we fail to see why respondents should be sheltered from a cease-and-desist order with respect to one deceptive practice merely because they also engaged in another.
32
Respondents finally object to what they consider to be the absence of an adequate record to sustain the Commission's finding. It is true that in its initial stages the case was concerned more with the misrepresentation about the product's underlying qualities than with the misrepresentation that objective proof was being given. Nevertheless, both misrepresentations were in the case from the beginning, and respondents were never prejudicially misled into believing that the second question was not being considered. Nor was it necessary for the Commission to conduct a survey of the viewing public before it could determine that the commercials had a tendency to mislead, for when the Commission finds deception it is also authorized, within the bounds of reason, to infer that the deception will constitute a material factor in a purchaser's decision to buy. See Federal Trade Comm. v. Raladam Co., 316 U.S. 149, 152, 62 S.Ct. 966, 968, 86 L.Ed. 1336. We find the record in this case sufficient to support the Commission's findings.
III.
33
We turn our attention now to the order issued by the Commission. It has been repeatedly held that the Commission has wide discretion in determining the type of order that is necessary to cope with the unfair practices found, e.g., Jacob Siegel Co. v. Federal Trade Comm., 327 U.S. 608, 611, 66 S.Ct. 758, 759, 90 L.Ed. 888, and that Congress has placed the primary responsibility for fashioning orders upon the Commission, Federal Trade Comm. v. National Lead Co., 352 U.S. 419, 429, 77 S.Ct. 502, 509, 1 L.Ed.2d 438. For these reasons the courts should not 'lightly modify' the Commission's orders. Federal Trade Comm. v. Cement Institute, 333 U.S. 683, 726, 68 S.Ct. 793, 815, 92 L.Ed. 1010. However, this Court has also warned that an order's prohibitions 'should be clear and precise in order that they may be understood by those against whom they are directed,' Federal Trade Comm. v. Cement Institute, supra, at 726, 68 S.Ct. at 815, and that '(t)he severity of possible penalties prescribed * * * for violations of orders which have become final underlines the necessity for fashioning orders which are, at the outset, sufficiently clear and precise to avoid raising serious questions as to their meaning and application.' Federal Trade Comm. v. Henry Broch & Co., 368 U.S. 360, 367—368, 82 S.Ct. 431, 436, 7 L.Ed.2d 353.
34
The Court of Appeals has criticized the reference in the Commission's order to 'test, experiment or demonstration' as not capable of practical interpretation. It could find no difference between the Rapid Shave commercial and a commercial which extolled the goodness of ice cream while giving viewers a picture of a scoop of mashed potatoes appearing to be ice cream. We do not understand this difficulty. In the ice cream case the mashed potato prop is not being used for additional proof of the product claim, while the purpose of the Rapid Shave commercial is to give the viewer objective proof of the claims made. If in the ice cream hypothetical the focus of the commercial becomes the undisclosed potato prop and the viewer is invited, explicitly or by implication, to see for himself the truth of the claims about the ice cream's rich texture and full color, and perhaps compare it to a 'rival product,' then the commercial has become similar to the one now before us. Clearly, however, a commercial which depicts happy actors delightedly eating ice cream that is in fact mashed potatoes or drinking a product appearing to be coffee but which is in fact some other substance is not covered by the present order.
35
The crucial terms of the present order—'test, experiment or demonstration * * * represented * * * as actual proof of a claim' are as specific as the circumstances will permit. If respondents in their subsequent commercials attempt to come as close to the line of misrepresentation as the Commission's order permits, they may without specifically intending to do so cross into the area proscribed by this order. However, it does not seem 'unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.' Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 331, 96 L.Ed. 367. In commercials where the emphasis is on the seller's word, and not on the viewer's own perception, the respondents need not fear that an undisclosed use of props is prohibited by the present order. On the other hand, when the commercial not only makes a claim, but also invites the viewer to rely on his own perception, for demonstrative proof of the claim, the respondents will be aware that the use of undisclosed props in strategic places might be a material deception. We believe that respondents will have no difficulty applying the Commission's order to the vast majority of their contemplated future commercials. If, however, a situation arises in which respondents are sincerely unable to determine whether a proposed course of action would violate the present order, they can, by complying with the Commission's rules,22 oblige the Commission to give them definitive advice as to whether their proposed action, if pursued, would constitute compliance with the order.
36
Finally, we find no defect in the provision of the order which prohibits respondents from engaging in similar practices with respect to 'any product' they advertise. The propriety of a broad order depends upon the specific circumstances of the case, but the courts will not interfere except where the remedy selected has no reasonable relation to the unlawful practices found to exist.23 In this case the respondents produced three different commercials which employed the same deceptive practice. This we believe gave the Commission a sufficient basis for believing that the respondents would be inclined to use similar commercials with respect to the other products they advertise. We think it reasonable for the Commission to frame its order broadly enough to prevent respondents from engaging in similarly illegal practices in future advertisements. As was said in Federal Trade Comm. v. Ruberoid Co., 343 U.S. 470, 473, 72 S.Ct. 800, 803, 96 L.Ed. 1081: '(T)he Commission is not limited to prohibiting the illegal practice in the precise form in which it is found to have existed in the past.' Having been caught violating the Act, respondents 'must expect some fencing in.' Federal Trade Comm. v. National Lead Co., 352 U.S. 419, 431, 77 S.Ct. 502, 510, 1 L.Ed.2d 438.
37
The judgment of the Court of Appeals is reversed and the case remanded for the entry of a judgment enforcing the Commission's order.
38
Reversed and remanded.
39
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting in part.
40
Under the limited grant of certiorari in this case, the Court must assume that the advertiser can perform the experiment in question and that the demonstration is as simple to execute as it appears on television. The only question here is what techniques the advertiser may use to convey essential truth to the television viewer. If the claim is true and valid, then the technique for projecting that claim, within broad boundaries, falls purely within the advertiser's art. The warrant to the Federal Trade Commission is to police the verity of the claim itself.
41
I do not agree that the use of 'mock-ups' by the television advertiser is of itself a deceptive trade practice. Further, while there was an independent deceptive element in this commercial, I do not think this record justifies the broad remedial order issued by the Commission. I would remand the case to the Commission for further proceedings.
I.
42
'MOCK-UPS' AS SUCH.
43
The faulty prop in the Court's reasoning is that it focuses entirely on what is taking place in the studio rather than on what the viewer is seeing on his screen. That which the viewer sees with his own eyes is not, however, what is taking place in the studio, but an electronic image. If the image he sees on the screen is an accurate reproduction of what he would see with the naked eyes were the experiment performed before him with sandpaper in his home or in the studio, there can hardly be a misrepresentation in any legally significant sense. While the Commission undoubtedly possesses broad authority to give content to the proscriptions of the Act, its discretion, as the Court recognizes, is not unbridled, and 'in the last analysis the words 'deceptive practices' set forth a legal standard and they must get their final meaning from judicial construction' (ante, p. 385). In this case, assuming that Rapid Shave could soften sandpaper as quickly as it does sand-covered plexiglass, a viewer who wants to entertain his friends by duplicating the actual experiment could do so by buying a can of Rapid Shave and some sandpaper. If he wished to shave himself, and his beard were really as tough as sandpaper, he could perform this part of his morning ablutions with Rapid Shave in the same way as he saw the plexiglass shaved on television.
44
I do not see how such a commercial can be said to be 'deceptive' in any legally acceptable use of that term. The Court attempts to distinguish the case where a 'celebrity' has written a testimonial endorsing some product, but the original testimonial cannot be seen over television and a copy is shown over the air by the manufacturer. The Court states of this 'hypothetical': 'In respondents' hypothetical the objective proof of the product claim that is offered, the word of the celebrity or agency that the experiment was actually conducted, does exist; while in the case before us the objective proof offered, the viewer's own perception of an actual experiment, does not exist.' Ante, at 390. But in both cases the viewer is told to 'see for himself,' in the one case that the celebrity has endorsed the product; in the other, that the product can shave sandpaper; in neither case is the viewer actually seeing the proof; and in both cases the objective proof does exist, be it the original testimonial or the sandpaper test actually conducted by the manufacturer. In neither case, however, is there a material misrepresentation, because what the viewer sees is an accurate image of the objective proof.
45
Nor can I readily understand how the accurate portrayal of an experiment by means of a mock-up can be considered more deceptive than the use of mashed potatoes to convey the glamorous qualities of a particular ice cream (ante, pp. 392—393); indeed, to a potato-lover 'the smile on the face of the tiger' might come more naturally than if he were actually being served ice cream.
46
It is commonly known that television presents certain distortions in transmission for which the broadcasting industry must compensate. Thus, a white towel will look a dingy gray over television, but a blue towel will look a sparkling white. On the Court's analysis, an advertiser must achieve accuracy in the studio even though it results in an inaccurate image being projected on the home screen. This led the Court of Appeals to question whether it would be proper for an advertiser to show a product on television that somehow, because of the medium, looks better on the screen than it does in real life. 310 F.2d 89, 94; 326 F.2d 517, 523, n. 16.
47
A perhaps more commonplace example suggests itself: Would it be proper for respondent Colgate, in advertising a laundry detergent, to 'demonstrate' the effectiveness of a major competitor's detergent in washing white sheets; and then 'before the viewer's eyes,' to wash a white (not a blue) sheet with the competitor's detergent? The studio test would accurately show the quality of the product, but the image on the screen would look as though the sheet had been washed with an ineffective detergent. All that has happened here is the converse: a demonstration has been altered in the studio to compensate for the distortions of the television medium, but in this instance in order to present an accurate picture to the television viewer.
48
In short, it seems to me that the proper legal test in cases of this kind concerns not what goes on in the broadcasting studio, but whether what is shown on the television screen is an accurate representation of the advertised product and of the claims made for it.
II.
49
THE COMMISSION'S REMEDY.
50
The Commission ordered both respondents to cease and desist from using mock-ups in any 'test, experiment or demonstration'—in the case of respondent Bates, whether or not relating to Colgate products—as a result of its finding that the use of a plexiglass mock-up in this instance constituted a separate misrepresentation. If that were the only misrepresentation found by the Commission, I would affirm the judgment of the Court of Appeals. The Commission, however, found another misrepresentation, not disputed here, namely, that Rapid Shave would shave sandpaper as quickly as plexiglass, and on this record I cannot say that such finding might not support the Commission's broad order.
51
In so concluding, some further observations are called for. The Court brings to the support of the Commission's broad order the suggestion that it might be difficult for the Commission to police the reliability of simulated demonstrations, and, further, that the Commission might have cause for concern as to advertisers which have demonstrated a propensity for misrepresentation. The policing factor certainly should not permit the Commission to sweep with the broad brush it has used here, since the same risk of inaccurate reproduction inheres in all commercials, not only those involving tests or experiments. Although the Commission doubtless has wide discretion in fashioning remedies (ante, p. 395), I do not believe that an order banning use of all mock-ups can be justified merely on the score of 'policing.'
52
There is some indication, however, that the Commission has had troubles with both respondents in the past (see 59 F.T.C. 1452, 1473 and n. 30). If the Commission should find that a pattern of misrepresentations by respondents creates a substantial risk that they will not accurately portray experiments if permitted to continue using mock-ups, the Commission's present order might well be justified. I think the Commission should have an opportunity to make such findings, which were unnecessary under what I believe was its mistaken view of the case.
53
To that end, I would vacate the judgment of the Court of Appeals and remand the case to the Commission for further proceedings in light of what has been said in this opinion.
1
38 Stat. 719, as amended, 52 Stat. 111, 15 U.S.C. § 45(a)(1) (1958 ed.):
'Unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce, are declared unlawful.'
2
52 Stat. 114, as amended, 15 U.S.C. § 45(i) (1958 ed.):
'If the order of the Commission is modified or set aside by the court of appeals, and if (1) the time allowed for filing a petition for certiorari has expired and no such petition has been duly filed, or (2) the petition for certiorari has been denied, or (3) the decision of the court has been affirmed by the Supreme Court, then the order of the Commission rendered in accordance with the mandate of the court of appeals shall become final on the expiration of thirty days from the time such order of the Commission was rendered, unless within such thirty days either party has instituted proceedings to have such order corrected so that it will accord with the mandate, in which event the order of the Commission shall become final when so corrected.'
3
Securities & Exchange Comm. v. Chenery Corp., 332 U.S. 194, 200, 67 S.Ct. 1575, 1579, 1760, 91 L.Ed. 1995; Federal Communications Comm. v. Pottsville Broadcasting Co., 309 U.S. 134, 145, 60 S.Ct. 437, 442, 84 L.Ed. 656.
4
See National Labor Relations Board v. Donnelly Garment Co., 330 U.S. 219, 227, 67 S.Ct. 756, 761, 91 L.Ed. 854; Federal Communications Comm. v. Pottsville Broadcasting Co., supra, note 3, 309 U.S. at 141, 60 S.Ct. at 440.
5
59 F.T.C. 1452, 1477—1478.
6
310 F.2d 89, 94.
7
Ibid.
8
Colgate-Palmolive Co., No. 7736, FTC, May 7, 1963. An additional clause was added to the order for the benefit of respondent Bates in recognition of the different positions of clients and advertising agencies, which often do not have all the information about a product that the client has. The clause reads: 'provided, however, that it shall be a defense hereunder that respondent neither knew nor had reason to know that the product, article or substance used in the test, experiment or demonstration was a mock-up or prop.'
9
326 F.2d 517, 523.
10
310 F.2d 89, 94.
11
38 Stat. 719 (1914), as amended, 15 U.S.C. § 45(a)(1) (1958 ed.).
12
52 Stat. 111 (1938), 15 U.S.C. § 45(a)(1) (1958 ed.).
13
See, e.g., Federal Trade Comm. v. Motion Picture Advertising Service Co., 344 U.S. 392, 396, 73 S.Ct. 361, 364; Federal Trade Comm. v. Raladam Co., 316 U.S. 149, 152, 62 S.Ct. 966, 968, 86 L.Ed. 1336.
14
See Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456; Federal Trade Comm. v. Pacific States Paper Trade Ass'n, 273 U.S. 52, 63, 47 S.Ct. 255, 258, 71 L.Ed. 534.
15
Brief for Petitioner, p. 13; Brief for Respondent Colgate, p. 22; Brief for Respondent Bates, p. 14.
16
Brief for Respondent Colgate, p. 16: 'What (the buyer) is interested in is whether the actual product he buys will look and perform the way it appeared on his television set.' Id., at 17: '(A) buyer's real concern it with the truth of the substantive claims or promises made to him, not with the means used to make them.' Id., at 20: '(T)he Commission's error was to confuse the substantive claim made for a product with the means by which such claim was conveyed.'
Brief for Respondent Bates, pp. 2—3: 'If the viewer or reader of the advertisement buys the product, and it will do exactly what the portrayal in the advertisement asserts it will do, can there be any unlawful misrepresentation?' Id., at 13—14: 'What induces the buyer to purchase is the claim that the product will perform as represented in the portrayed test. That is the material claim.' Id., at 25: 'It is not a representation in any way relating to the product or to its purchase, so that even if the strained suggestion that there is such an implied representation were realistic, the representation plainly would be immaterial.'
17
Federal Trade Comm. v. Standard Education Society, 302 U.S. 112, 115—117, 58 S.Ct. 113, 115, 82 L.Ed. 141; Kalwajtys v. Federal Trade Comm., 237 F.2d 654, 656, 65 A.L.R.2d 220 (C.A.7th Cir. 1956), cert. denied, 352 U.S. 1025, 77 S.Ct. 591, 1 L.Ed.2d 597.
18
Kerran v. Federal Trade Comm., 265 F.2d 246 (C.A.10th Cir. 1959), cert. denied sub nom. Double Eagle Ref. Co. v. Federal Trade Comm., 361 U.S. 818, 80 S.Ct. 61, 4 L.Ed.2d 64; Mohawk Ref. Corp. v. Federal Trade Comm., 263 F.2d 818 (C.A.3d Cir. 1959), cert. denied, 361 U.S. 814, 80 S.Ct. 53, 4 L.Ed.2d 61.
19
E.g., Niresk Industries, Inc. v. Federal Trade Comm., 278 F.2d 337 (C.A.7th Cir. 1960), cert. denied, 364 U.S. 883, 81 S.Ct. 173, 5 L.Ed.2d 104.
20
E.g., Niresk Industries, Inc. v. Federal Trade Comm., supra, note 19; Howe v. Federal Trade Comm., 148 F.2d 561 (C.A.9th Cir. 1945), cert. denied, 326 U.S. 741, 66 S.Ct. 53, 90 L.Ed. 442.
21
See, e.g., Stipulation 9083, 55 F.T.C. 2101 (1958); Stipulation 8966, 54 F.T.C. 1953 (1957).
22
The Commission's rules, 16 CFR § 3.26 (1964 Supp.), provide:
'(b) Any respondent subject to a Commission order may request advice from the Commission as to whether a proposed course of action, if pursued by it, will constitute compliance with such order. The request for advice should be submitted in writing to the Secretary of the Commission and should include full and complete information regarding the proposed course of action. On the basis of the facts submitted, as well as other information available to the Commission, the Commission will inform the respondent whether or not the proposed course of action, if pursued, would constitute compliance with its order.
'(c) The Commission may at any time reconsider its approval of any report of compliance or any advice given under this section and, where the public interest requires, rescind or revoke its prior approval or advice. In such event the respondent will be given notice of the Commission's intent to revoked or rescind and will be given an opportunity to submit its views to the Commission. The Commission will not proceed against a respondent for violation of an order with respect to any action which was taken in good faith reliance upon the Commission's approval or advice under this section, where all relevant facts were fully, completely and accurately presented to the Commission and where such action was promptly discontinued upon notification of rescission or revocation of the Commission's approval.'
23
Federal Trade Comm. v. National Lead Co., 352 U.S. 419, 429, 77 S.Ct. 502, 509; Federal Trade Comm. v. Ruberoid Co., 343 U.S. 470, 473, 72 S.Ct. 800, 803; Jacob Siegel Co. v. Federal Trade Comm., 327 U.S. 608, 612, 66 S.Ct. 758, 760.
| 78
|
380 U.S. 449
85 S.Ct. 1101
14 L.Ed.2d 151
Lester G. McKINNIE et al., petitioners,v.STATE OF TENNESSEE.
No. 148.—.
Supreme Court of the United States
October Term, 1964.
April 5, 1965
James M. Nabrit, III, New York City, for petitioners.
Thomas E. Fox, Asst. Atty. Gen. of Tennessee, Nashville, Tenn., for respondent.
On Writ of Certiorari to the Supreme Court of Tennessee.
PER CURIAM.
1
The judgment is reversed. Hamm v. City of Rock Hill and Lupper v. Arkansas, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300.
2
Mr. Justice STEWART would vacate the judgment and remand the case to the Supreme Court of Tennessee for reconsideration in the light of supervening federal legislation, in accordance with the views expressed in his dissenting opinion in Hamm v. City of Rock Hill, 379 U.S. 306, 326, 85 S.Ct. 384, 396.
3
Mr. Justice BLACK, Mr. Justice HARLAN, and Mr. Justice WHITE would affirm the judgment of the Supreme Court of Tennessee for the reasons stated in their dissenting opinions in Hamm v. City of Rock Hill, 379 U.S. 306, 318, 322 327, 85 S.Ct. 384, 392, 394, 397.
| 12
|
380 U.S. 400
85 S.Ct. 1065
13 L.Ed.2d 923
Bob Granville POINTER, Petitioner,v.STATE OF TEXAS.
No. 577.
Argued March 15, 1965.
Decided April 5, 1965.
Orville A. Harlan, Houston, Tex., for petitioner.
Gilbert J. Pena, Laredo, Tex., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
The Sixth Amendment provides in part that:
1
'In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * * and to have the Assistance of Counsel for his defence.'
2
Two years ago in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, we held that the Fourteenth Amendment makes the Sixth Amendment's guarantee of right to counsel obligatory upon the States. The question we find necessary to decide in this case is whether the Amendment's guarantee of a defendant's right 'to be confronted with the witnesses against him,' which has been held to include the right to cross-examine those witnesses, is also made applicable to the States by the Fourteenth Amendment.
3
The petitioner Pointer and one Dillard were arrested in Texas and taken before a state judge for a preliminary hearing (in Texas called the 'examining trial') on a charge of having robbed Kenneth W. Phillips of $375 'by assault, or violence, or by putting in fear of life or bodily injury,' in violation of Texas Penal Code Art. 1408. At this hearing an Assistant District Attorney conducted the prosecution and examined witnesses, but neither of the defendants, both of whom were laymen, had a lawyer. Phillips as chief witness for the State gave his version of the alleged robbery in detail, identifying petitioner as the man who had robbed him at gunpoint. Apparently Dillard tried to cross-examine Phillips but Pointer did not, although Pointer was said to have tried to cross-examine some other witnesses at the hearing. Petitioner was subsequently indicted on a charge of having committed the robbery. Some time before the trial was held, Phillips moved to California. After putting in evidence to show that Phillips had moved and did not intent to return to Texas, the State at the trial offered the transcript of Phillips' testimony given at the preliminary hearing as evidence against petitioner. Petitioner's counsel immediately objected to introduction of the transcript, stating, 'Your Honor, we will object to that, as it is a denial of the confrontment of the witnesses against the Defendant.' Similar objections were repeatedly made by petitioner's counsel but were overruled by the trial judge, apparently in part because, as the judge viewed it, petitioner had been present at the preliminary hearing and therefore had been 'accorded the opportunity of cross examining the witnesses there against him.' The Texas Court of Criminal Appeals, the highest state court to which the case could be taken, affirmed petitioner's conviction, rejecting his contention that use of the transcript to convict him denied him rights guaranteed by the Sixth and Fourteenth Amendments. 375 S.W.2d 293. We granted certiorari to consider the important constitutional question the case involves. 379 U.S. 815, 85 S.Ct. 88, 13 L.Ed.2d 28.
4
In this Court we do not find it necessary to decide one aspect of the question petitioner raises, that is, whether failure to appoint counsel to represent him at the preliminary hearing unconstitutionally denied him the assistance of counsel within the meaning of Gideon v. Wainwright, supra. In making that argument petitioner relies mainly on White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, in which this Court reversed a conviction based in part upon evidence that the defendant has pleaded guilty to the crime at a preliminary hearing where he was without counsel. Since the preliminary hearing there, as in Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, was one in which pleas to the charge could be made, we held in White as in Hamilton that a preliminary proceeding of that nature was so critical a stage in the prosecution that a defendant at that point was entitled to counsel. But the State informs us that at a Texas preliminary hearing such as is involved here, pleas of guilty or not guilty are not accepted and that the judge decides only whether the accused should be bound over to the grand jury and if so whether he should be admitted to bail. Because of these significant differences in the procedures of the respective States, we cannot say that the White case is necessarily controlling as to the right to counsel. Whether there might be other circumstances making this Texas preliminary hearing so critical to the defendant as to call for appointment of counsel at that stage we need not decide on this record and that question we reserve. In this case the objections and arguments in the trial court as well as the arguments in the Court of Criminal Appeals and before us make it clear that petitioner's objection is based not so much on the fact that he had no lawyer when Phillips made his statement at the preliminary hearing, as on the fact that use of the transcript of that statement at the trial denied petitioner any opportunity to have the benefit of counsel's cross-examination of the principal witness against him. It is that latter question which we decide here.
I.
5
The Sixth Amendment is a part of what is called our Bill of Rights. In Gideon v. Wainwright, supra, in which this Court held that the Sixth Amendment's right to the assistance of counsel is obligatory upon the States, we did so on the ground 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.' 372 U.S., at 342, 83 S.Ct., at 795. And last Term in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, in holding that the Fifth Amendment's guarantee against self-incrimination was made applicable to the States by the Fourteenth, we reiterated the holding of Gideon that the Sixth Amendment's right-to-counsel guarantee is "a fundamental right, essential to a fair trial," and 'thus was made obligatory on the States by the Fourteenth Amendment.' 378 U.S., at 6, 84 S.Ct., at 1492. See also Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678. We hold today that the Sixth Amendment's right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the Fourteenth Amendment.
6
It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him. And probably no one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-examination in exposing falsehood and bringing out the truth in the trial of a criminal case. See, e.g., 5 Wigmore, Evidence § 1367 (3d ed. 1940). The fact that this right appears in the Sixth Amendment of our Bill of Rights reflects the belief of the Framers of those liberties and safeguards that confrontation was a fundamental right essential to a fair trial in a criminal prosecution. Moreover, the decisions of this Court and other courts* throughout the years have constantly emphasized the necessity for cross-examination as a protection for defendants in criminal cases. This Court in Kirby v. United States, 174 U.S. 47, 55, 56, 19 S.Ct. 574, 577, 43 L.Ed. 890, referred to the right of confrontation as '(o)ne of the fundamental guaranties of life and liberty,' and 'a right long deemed so essential for the due protection of life and liberty that it is guarded against legislative and judicial action by provisions in the constitution of the United States and in the constitutions of most, if not of all, the states composing the Union.' Mr. Justice Stone, writing for the Court in Alford v. United States, 282 U.S. 687, 692, 51 S.Ct. 218, 219, 75 L.Ed. 624, declared that the right of cross-examination is 'one of the safeguards essential to a fair trial.' And in speaking of confrontation and cross-examination this Court said in Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377:
7
'They have ancient roots. They find expression in the Sixth Amendment which provides that in all criminal cases the accused shall enjoy the right 'to be confronted with the witnesses against him.' This Court has been zealous to protect these rights from erosion.' 360 U.S., at 496—497, 79 S.Ct., at 1413 (footnote omitted.
8
There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal. Indeed, we have expressly declared that to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment's guarantee of due process of law. In In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682, this Court said:
9
'A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense—a right to his day in court—are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.' 333 U.S., at 273, 68 S.Ct., at 507 (footnote omitted).
10
And earlier this Term in Turner v. State of Louisiana, 379 U.S. 466, 472—473, 85 S.Ct. 546, 550, 13 L.Ed.2d 424, we held:
11
'In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the 'evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel.'
12
Compare Willner v. Committee on Character & Fitness, 373 U.S. 96, 103—104, 83 S.Ct. 1175, 1180—1181, 10 L.Ed.2d 224.
13
We are aware that some cases, particularly West v. State of Louisiana, 194 U.S. 258, 264, 24 S.Ct. 650, 652, 48 L.Ed. 965, have stated that the Sixth Amendment's right of confrontation does not apply to trials in state courts, on the ground that the entire Sixth Amendment does not so apply. See also Stein v. People of State of New York, 346 U.S. 156, 195—196, 73 S.Ct. 1077, 1098 1099, 97 L.Ed. 1522. But of course since Gideon v. Wainwright, supra, it no longer can broadly be said that the Sixth Amendment does not apply to state courts. And as this Court said in Malloy v. Hogan, supra, 'The Court has not hesitated to re-examine past decisions according the Fourteenth Amendment a less central role in the preservation of basic liberties than that which was contemplated by its Framers when they added the Amendment to our constitutional scheme.' 378 U.S., at 5, 84 S.Ct., at 1492. In the light of Gideon, Malloy, and other cases cited in those opinions holding various provisions of the Bill of Rights applicable to the States by virtue of the Fourteenth Amendment, the statements made in West and similar cases generally declaring that the Sixth Amendment does not apply to the States can no longer be regarded as the law. We hold that petitioner was entitled to be tried in accordance with the protection of the confrontation guarantee of the Sixth Amendment, and that that guarantee, like the right against compelled self-incrimination, is 'to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.' Malloy v. Hogan, supra, 378 U.S., at 10, 84 S.Ct., at 1495.
II.
14
Under this Court's prior decisions, the Sixth Amendment's guarantee of confrontation and cross-examination was unquestionably denied petitioner in this case. As has been pointed out, a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him. See, e.g., Dowdell v. United States, 221 U.S. 325, 330, 31 S.Ct. 590, 592, 55 L.Ed. 753; Motes v. United States, 178 U.S. 458, 474, 20 S.Ct. 993, 999, 44 L.Ed. 1150; Kirby v. United States, 174 U.S. 47, 55—56, 19 S.Ct. 574, 577, 43 L.Ed. 890; Mattox v. United States, 156 U.S. 237, 242—243, 15 S.Ct. 337, 339 340, 39 L.Ed. 409. Cf. Hopt v. People of Territory of Utah, 110 U.S. 574, 581, 4 S.Ct. 202, 205, 28 L.Ed. 262; Queen v. Hepburn, 7 Cranch 290, 295, 3 L.Ed. 348. This Court has recognized the admissibility against an accused of dying declarations, Mattox v. United States, 146 U.S. 140, 151, 13 S.Ct. 50, 53, 36 L.Ed. 917, and of testimony of a deceased witness who has testified at a former trial, Mattox v. United States, 156 U.S. 237, 240—244, 15 S.Ct. 337, 338—340, 39 L.Ed. 409. See also Dowdell v. United States, supra, 221 U.S., at 330, 31 S.Ct., at 592; Kirby v. United States, supra, 174 U.S., at 61, 19 S.Ct., at 579. Nothing we hold here is to the contrary. The case before us would be quite a different one had Phillips' statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine. Compare Motes v. United States, supra, 178 U.S., at 474, 20 S.Ct., at 999. There are other analogous situations which might not fall within the scope of the constitutional rule requiring confrontation of witnesses. The case before us, however, does not present any situation like those mentioned above or others analogous to them. Because the transcript of Phillips' statement offered against petitioner at his trial had not been taken at a time and under circumstances affording petitioner through counsel an adequate opportunity to cross-examine Phillips, its introduction in a federal court in a criminal case against Pointer would have amounted to denial of the privilege of confrontation guaranteed by the Sixth Amendment. Since we hold that the right of an accused to be confronted with the witnesses against him must be determined by the same standards whether the right is denied in a federal or state proceeding, it follows that use of the transcript to convict petitioner denied him a constitutional right, and that his conviction must be reversed.
15
Reversed and remanded.
16
Mr. Justice HARLAN, concurring in the result.
17
I agree that in the circumstances the admission of the statement in question deprived the petitioner of a right of 'confrontation' assured by the Fourteenth Amendment. I cannot subscribe, however, to the constitutional reasoning of the Court.
18
The Court holds that the right of confrontation guaranteed by the Sixth Amendment in federal criminal trials is carried into state criminal cases by the Fourteenth Amendment. This is another step in the onward march of the long-since discredited 'incorporation' doctrine (see, e.g., Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan.L.Rev. 5 (1949); Frankfurter, Memorandum on 'Incorporation' of the Bill of Rights Into the Due Process Clause of the Fourteenth Amendment, 78 Harv.L.Rev. 746 (1965)), which for some reason that I have not yet been able to fathom has come into the sunlight in recent years. See, e.g., Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.
19
For me this state judgment must be reversed because a right of confrontation is 'implicit in the concept of ordered liberty,' Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288, reflected in the Due Process Clause of the Fourteenth Amendment independently of the Sixth.
20
While either of these constitutional approaches brings one to the same end result in this particular case, there is a basic difference between the two in the kind of future constitutional development they portend. The concept of Fourteenth Amendment due process embodied in Palko and a host of other thoughtful past decisions now rapidly falling into discard, recognizes that our Constitution tolerates, indeed encourages, differences between the methods used to effectuate legitimate federal and state concerns, subject to the requirements of fundamental fairness 'implicit in the concept of ordered liberty.' The philosophy of 'incorporation,' on the other hand, subordinates all such state differences to the particular requirements of the Federal Bill of Rights (but see Ker v. State of California, supra, 374 U.S., at 34, 83 S.Ct., at 1630) and increasingly subjects state legal processes to enveloping federal judicial authority. 'Selective' incorporation or 'absorption' amounts to little more than a diluted form of the full incorporation theory. Whereas it rejects full incorporation because of recognition that not all of the guarantees of the Bill of Rights should be deemed 'fundamental,' it at the same time ignores the possibility that not all phases of any given guaranty described in the Bill of Rights are necessarily fundamental.
21
It is too often forgotten in these times that the American federal system is itself constitutionally ordained, that it embodies values profoundly making for lasting liberties in this country, and that its legitimate requirements demand continuing solid recognition in all phases of the work of this Court. The 'incorporation' doctrines, whether full blown or selective, are both historically and constitutionally unsound and incompatible with the maintenance of our federal system on even course.
22
Mr. Justice STEWART, concurring in the result.
23
I join in the judgment reversing this conviction, for the reason that the petitioner was denied the opportunity to cross-examine, through counsel, the chief witness for the prosecution. But I do not join in the Court's pronouncement which makes 'the Sixth Amendment's right of an accused to confront the witnesses against him * * * obligatory on the States.' That questionable tour de force seems to me entirely unnecessary to the decision of this case, which I think is directly controlled by the Fourteenth Amendment's guarantee that no State shall 'deprive any person of life, liberty, or property, without due process of law.'
24
The right of defense counsel in a criminal case to cross-examine the prosecutor's living witnesses is '(o)ne of the fundamental guaranties of life and liberty,'1 and 'one of the safeguards essential to a fair trial.'2 It is, I think, as indispensable an ingredient as the 'right to be tried in a courtroom presided over by a judge.'3 Indeed, this Court has said so this very Term. Turner v. State of Louisiana, 379 U.S. 466, 472 473, 85 S.Ct. 546, 549—550, 13 L.Ed.2d 424.4
25
Here that right was completely denied. Therefore, as the Court correctly points out, we need not consider the case which could be presented if Phillips' statement had been taken at a hearing at which the petitioner's counsel was given a full opportunity to cross-examine. See West v. State of Louisiana, 194 U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965.
26
Mr. Justice GOLDBERG, concurring.
27
I agree with the holding of the Court that 'the Sixth Amendment's right of an accused to confront the witnesses against him is * * * a fundamental right and is made obligatory on the States by the Fourteenth Amendment.' Ante, at 403. I therefore join in the opinion and judgment of the Court. My Brother HARLAN, while agreeing with the result reached by the Court, deplores the Court's reasoning as 'another step in the onward march of the long-since discredited 'incorporation' doctrine,' ante, at 408. Since I was not on the Court when the incorporation issue was joined, see Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903, I deem it appropriate to set forth briefly my view on this subject.
28
I need not recapitulate the arguments for or against incorporation whether 'total' or 'selective.' They have been set forth adequately elsewhere.1 My Brother BLACK's view of incorporation has never commanded a majority of the Court, though in Adamson it was assented to by four Justices. The Court in its decisions has followed a course whereby certain guarantees 'have been taken over from the earlier articles of the federal bill of rights and brought within the Fourteenth Amendment,' Palko v. State of Connecticut, 302 U.S. 319, 326, 58 S.Ct. 149, 152, 82 L.Ed. 288, by a process which might aptly be described as 'a process of absorption.' Ibid. See Cohen v. Hurley, 366 U.S. 117, 154, 81 S.Ct. 954, 974, 6 L.Ed.2d 156 (dissenting opinion of Mr. Justice Brennan); Brennan, The Bill of Rights and the States, 36 N.Y.U.L.Rev. 761 (1961). Thus the Court has held that the Fourteenth Amendment guarantees against infringement by the States the liberties of the First Amendment,2 the Fourth Amendment,3 the Just Compensation Clause of the Fifth Amendment,4 the Fifth Amendment's privilege against self-incrimination,5 the Eighth Amendment's prohibition of cruel and unusual punishments,6 and the Sixth Amendment's guarantee of the assistance of counsel for an accused in a criminal prosecution.7
29
With all deference to my Brother HARLAN, I cannot agree that this process has 'come into the sunlight in recent years.' Ante, at 408. Rather, I believe that it has its origins at least as far back as Twining v. State of New Jersey, 211 U.S. 78, 99, 29 S.Ct. 14, 19, 53 L.Ed. 97, where the Court stated that 'it is possible that some of the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. Chicago, Burlington & Quincy Railroad v. (City of) Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979.' This passage and the authority cited make clear that what is protected by the Fourteenth Amendment are 'rights,' which apply in every case, not solely in those cases where it seems 'fair' to a majority of the Court to afford the protection. Later cases reaffirm that the process of 'absorption' is one of extending 'rights.' See Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, and cases cited by Mr. Justice Brennan in his dissenting opinion in Cohen v. Hurley, supra, 366 U.S. at 156, 81 S.Ct., at 975. I agree with these decisions, as is apparent from my votes in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Malloy v. Hogan, supra, and Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678, and my concurring opinion in New York Times Co. v. Sullivan, 376 U.S. 254, 297, 84 S.Ct. 710, 735, 11 L.Ed.2d 686, and I subscribe to the process by which fundamental guarantees of the Bill of Rights are absorbed by the Fourteenth Amendment and thereby applied to the States.
30
Furthermore, I do not agree with my Brother HARLAN that once a provision of the Bill of Rights has been held applicable to the States by the Fourteenth Amendment, it does not apply to the States in full strength. Such a view would have the Fourteenth Amendment apply to the States 'only a 'watered-down, subjective version of the individual guarantees of the Bill of Rights." Malloy v. Hogan, supra, 378 U.S., at 10—11, 84 S.Ct., at 1495. It would allow the States greater latitude than the Federal Government to abridge concededly fundamental liberties protected by the Constitution. While I quite agree with Mr. Justice Brandeis that '(i)t is one of the happy incidents of the federal system that a * * * State may * * * serve as a laboratory; and try novel social and economic experiments,' New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (dissenting opinion), I do not believe that this includes the power to experiment with the fundamental liberties of citizens safeguarded by the Bill of Rights. My Brother HARLAN's view would also require this Court to make the extremely subjective and excessively discretionary determination as to whether a practice, forbidden the Federal Government by a fundamental constitutional guarantee, is, as viewed in the factual circumstances surrounding each individual case, sufficiently repugnant to the notion of due process as to be forbidden the States.
31
Finally, I do not see that my Brother HARLAN's view would further any legitimate interests of federalism. It would require this Court to intervene in the state judicial process with considerable lack of predictability and with a consequent likelihood of considerable friction. This is well illustrated by the difficulties which were faced and were articulated by the state courts attempting to apply this Court's now discarded rule of Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. See Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich.L.Rev. 869, 897—898. These difficulties led the Attorneys General of 22 States to urge that this Court overrule Betts v. Brady and apply fully the Sixth Amendment's guarantee of right to counsel to the States through the Fourteenth Amendment. See Gideon v. Wainwright, supra, 372 U.S., at 336, 83 S.Ct., at 792. And to deny to the States the power to impair a fundamental constitutional right is not to increase federal power, but, rather, to limit the power of both federal and state governments in favor of safeguarding the fundamental rights and liberties of the individual. In my view this promotes rather than undermines the basic policy of avoiding excess concentration of power in government, federal or state, which underlies our concepts of federalism.
32
I adhere to and support the process of absorption by means of which the Court holds that certain fundamental guarantees of the Bill of Rights are made obligatory on the States through the Fourteenth Amendment. Although, as this case illustrates, there are differences among members of the Court as to the theory by which the Fourteenth Amendment protects the fundamental liberties of individual citizens, it is noteworthy that there is a large area of agreement, both here and in other cases, that certain basic rights are fundamental—not to be denied the individual by either the state or federal governments under the Constitution. See, e.g., Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Gideon v. Wainwright, supra; New York Times Co. v. Sullivan, supra; Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424.
*
See State and English cases collected in 5 Wigmore, Evidence §§ 1367, 1395 (3d ed. 1940). State constitutional and statutory provisions similar to the Sixth Amendment are collected in 5 Wigmore supra, § 1397, n. 1.
1
Kirby v. United States, 174 U.S. 47, 55, 19 S.Ct. 574, 577, 43 L.Ed. 890.
2
Alford v. United States, 282 U.S. 687, 692, 51 S.Ct. 218, 219, 75 L.Ed. 624.
3
Rideau v. State of Louisiana, 373 U.S. 723, 727, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663.
4
See also In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942, where the Court said that 'due process requires as a minimum that an accused be given a public trial after reasonable notice of the charges, have a right to examine witnesses against him, call witnesses on his own behalf, and be represented by counsel.' 349 U.S., at 134, 75 S.Ct., at 624.
1
See Adamson v. People of State of California, supra, at 59, 67 S.Ct., at 1679 (concurring opinion of Mr. Justice Frankfurter); id., at 68, 67 S.Ct., at 1684 (dissenting opinion of Mr. Justice Black); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, id., at 14, 84 S.Ct., at 1497 (dissenting opinion of Mr. Justice Harlan); Gideon v. Wainwright, 372 U.S. 335, 345, 83 S.Ct. 792, 797, 9 L.Ed.2d 799 (concurring opinion of Mr. Justice Douglas); id., at 349, 83 S.Ct., at 799 (concurring opinion of Mr. Justice Harlan); Poe v. Ullman, 367 U.S. 497, 509, 81 S.Ct. 1752, 1759, 6 L.Ed.2d 989 (dissenting opinion of Mr. Justice Douglas); Frankfurter, Memorandum on 'Incorporation' of the Bill of Rights Into the Due Process Cause of the Fourteenth Amendment, 78 Harv.L.Rev. 746; Black, The Bill of Rights, 35 N.Y.U.L.Rev. 865 (1960); Brennan, The Bill of Rights and the States, 36 N.Y.U.L.Rev. 761 (1961); Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan.L.Rev. 5 (1949); Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich.L.Rev. 869 (1948); Henkin, 'Selective Incorporation' in the Fourteenth Amendment, 73 Yale L.J. 74 (1963).
2
See, e.g., Gitlow v. People of State of New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138; De Jonge v. State of Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278; Cantwell v. State of Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296, 81 S.Ct. 1333, 1335, 6 L.Ed.2d 301; New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686.
3
See Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
4
Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979.
5
Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.
6
Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758.
7
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.
| 01
|
380 U.S. 445
85 S.Ct. 1059
13 L.Ed.2d 957
Melvin C. JENKINS, Petitioner,v.UNITED STATES.
No. 761.
Argued April 1, 1965.
Decided April 5, 1965.
H. Thomas Sisk, Washington, D.C., for petitioner.
Philip B. Heymann, Washington, D.C., for respondent.
PER CURIAM.
1
Petitioner was charged in a two-count indictment in the United States District Court for the District of Columbia with robbing a High's Dairy Products store on December 27, 1962 (count 1), and with assault with intent to rob upon the proprietress of a grocery store on January 24, 1963 (count 2), in violation of §§ 22 2901 and 22—501, respectively, of the District of Columbia Code. Following a trial by jury, he was found guilty on count 1 and not guilty on count 2. He was sentenced to imprisonment for from 3 to 10 years. A divided Court of Appeals affirmed the conviction, 117 U.S.App.D.C. 346, 330 F.2d 220. A petition for rehearing en banc was denied, four judges dissenting.
2
Slightly more than two hours after the jury retired to deliberate, the jury sent a note to the trial judge advising that it had been unable to agree upon a verdict 'on both counts because of insufficient evidence.' The judge thereupon recalled the jury to the courtroom and in the course of his response stated that 'You have got to reach a decision in this case.' We granted certiorari, 379 U.S. 944, 85 S.Ct. 442, 13 L.Ed.2d 542, to consider whether in its context and under all the circumstances of this case the statement was coercive. The Solicitor General in his brief in this Court stated:
3
'Of course, if this Court should conclude that the judge's statement had the coercive effect attributed to it, the judgment should be reversed and the cause remanded for a new trial; the principle that jurors may not be coerced into surrendering views conscientiously held is so clear as to require no elaboration.'
4
Upon review of the record, we conclude that in its context and under all the circumstances the judge's statement had the coercive effect attributed to it. Accordingly the judgment of the Court of Appeals is reversed and the cause remanded for a new trial. Cf. Brasfield v. United States, 272 U.S. 448, 450, 47 S.Ct. 135, 136, 71 L.Ed. 345; Burton v. United States, 196 U.S. 283, 307 308, 25 S.Ct. 243, 250, 49 L.Ed. 482; United States v. Rogers, 289 F.2d 433, 435 (C.A.4th Cir.)
5
It is so ordered.
6
Reversed and remanded for new trial.
7
Mr. Justice CLARK and Mr. Justice HARLAN dissent.
| 01
|
380 U.S. 447
85 S.Ct. 1101
14 L.Ed.2d 151
Ralph D. ABERNATHY et al., petitioners,v.STATE OF ALABAMA.
No. 9.—.
Supreme Court of the United States
October Term, 1964.
April 5, 1965
Louis H. Pollak, New York City, for petitioners.
Leslie Hall, Asst. Atty. Gen. of Alabama, Montgomery, Ala., for respondent.
On Writ of Certiorari to the Court of Appeals of Alabama.
PER CURIAM.
1
The judgments are reversed. Boynton v. Com. of Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206.
2
Mr. Justice BLACK and Mr. Justice WHITE took no part in the consideration or decision of this case.
| 12
|
380 U.S. 448
85 S.Ct. 1102
14 L.Ed.2d 151
CHICAGO & NORTH WESTERN RAILWAY CO., appellant,v.CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO. et al.
No. 21.—October Term, 1964.
April 5, 1965.
Rehearing Denied May 3, 1965.
See 381 U.S. 907, 85 S.Ct. 1445.
Appeal from the United States District Court for the Eastern District of Wisconsin.
John C. Danielson, Chicago, Ill., for appellant.
Frank M. Long, Chicago, Ill., for appellees.
PER CURIAM.
1
The judgment is reversed. Texas & P. R. Co. v. Gulf, C. & S. F. R. Co., 270 U.S. 266, 278, 46 S.Ct. 263, 266, 70 L.Ed. 578.
| 78
|
380 U.S. 424
85 S.Ct. 1050
13 L.Ed.2d 941
Otto V. BURNETT, Petitioner,v.NEW YORK CENTRAL RAILROAD COMPANY.
No. 437.
Argued March 11, 1965.
Decided April 5, 1965.
Douglas G. Cole, Cincinnati, Ohio, for petitioner.
Roy W. Short, Cincinnati, Ohio, for respondent.
Mr. Justice GOLDBERG delivered the opinion of the Court.
1
On March 13, 1963, petitioner, a resident of Kentucky, began an action under the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. § 51 et seq. (1958) ed.) in the Common Pleas Court of Hamilton County, Ohio. He alleged that he had been injured on March 17, 1960, in Indiana, while in the course of his employment with respondent, the New York Central Railroad. The Ohio court had jurisdiction of the action, and respondent was properly served with process. The action was dismissed upon respondent's motion, however, because venue was improper. While in Ohio in most transitory actions venue is proper wherever the defendant can be summoned, see Ohio Rev.Code, §§ 2307.36, 2307.38, 2307.39, venue is properly laid in actions against railroads to recover for personal injuries only in the county of the plaintiff's residence or the county where the injury occurred.1 See Ohio Rev.Code, § 2307.37, Loftus v. Pennsylvania R. Co., 107 Ohio St. 352, 140 N.E. 94. On June 12, 1963, eight days after his state court action was dismissed, petitioner brought an identical action in the Federal District Court for the Southern District of Ohio. The District Court dismissed petitioner's complaint on the ground that although the state suit was brought within the limitations period, the federal action was not timely and was then barred by the limitation provision of the FELA, 35 Stat. 66, as amended, 45 U.S.C. § 56 (1958 ed.), which provides: 'That no action shall be maintained under this Act unless commenced within three years from the day the cause of action accrued.' 230 F.Supp. 767. The Court of Appeals, rejecting petitioner's argument that his suit in the state court had tolled the FELA limitation provision, affirmed the District Court's dismissal of his suit. 332 F.2d 529. The Court of Appeals reasoned that since the limitation provision does not limit a common-law right, but, rather, is contained in the same Act which creates the right being limited, the limitation is 'substantive' and not 'procedural.' For this reason, it held, '(f)ailure to bring the action within the time prescribed extinguished the cause of action.' 332 F.2d at 530. We granted certiorari to determine whether petitioner's suit in the Ohio state court tolled the FELA statute of limitations. 379 U.S. 913, 85 S.Ct. 260, 13 L.Ed.2d 184.
2
There is no doubt that, as a matter of federal law, the state action here involved was properly 'commenced' within the meaning of the federal limitation statute which provides that 'no action shall be maintained * * * unless commenced within three years from the day the cause of action accrued.' As this Court held in Herb v. Pitcairn, 325 U.S. 77, 79, 65 S.Ct. 954, 955, 89 L.Ed. 1483, 'when process has been adequate to bring in the parties and to start the case on a course of judicial handling which may lead to final judgment without issuance of new initial process, it is enough to commence the action within the federal statute.' Had Ohio law permitted this state court action simply to be transferred to another state court, Herb v. Pitcairn holds that it would have been timely. The problem here, however, is that the timely state court action was not transferable under Ohio law but, rather, was dismissed, and a new action was brought in a federal court more than three years after the cause of action accrued. Nonetheless, for the reasons set out below, we hold that the principles underlying the Court's decision in Herb v. Pitcairn lead to the conclusion that petitioner's state court action tolled the federal limitation provision and therefore petitioner's federal court action here was timely.
3
The basic question to be answered in determining whether, under a given set of facts, a statute of limitations is to be tolled, is one 'of legislative intent whether the right shall be enforceable * * * after the prescribed time.' Mid-state Horticultural Co. v. Pennsylvania R. Co., 320 U.S. 356, 360, 64 S.Ct. 128, 130, 88 L.Ed. 96. Classification of such a provision as 'substantive' rather than 'procedural' does not determine whether or under what circumstances the limitation period may be extended.2 As this Court has expressly held, the FELA limitation period is not totally inflexible, but, under appropriate circumstances, it may be extended beyond three years. Glus v. Brooklyn Eastern Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770. See Osbourne v. United States, 164 F.2d 767 (C.A.2d Cir.); Scarborough v. Atlantic Coast Line R. Co., 178 F.2d 253, 15 A.L.R.2d 491 (C.A.4th Cir.); Frabutt v. New York, C. & St. L.R. Co., 84 F.Supp. 460 (D.C.W.D.Pa.). These authorities indicate that the basic inquiry is whether congressional purpose is effectuated by tolling the statute of limitations in given circumstances.
4
In order to determine congressional intent, we must examine the purposes and policies underlying the limitation provision, the Act itself, and the remedial scheme developed for the enforcement of the rights given by the Act. Such an examination leads us to conclude that it effectuates the basic congressional purposes in enacting this humane and remedial Act,3 as well as those policies embodied in the Act's limitation provision, to hold that when a plaintiff begins a timely FELA action in a state court of competent jurisdiction, service of process is made upon the opposing party, and the state court action is later dismissed because of improper venue, the FELA limitation is tolled during the pendency of the state action.
5
Statutes of limitations are primarily designed to assure fairness to defendants. Such statutes 'promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.' Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348—349, 64 S.Ct. 582, 586, 88 L.Ed. 788. Moreover, the courts ought to be relieved of the burden of trying stale claims when a plaintiff has slept on his rights.4
6
This policy of repose, designed to protect defendants, is frequently outweighed, however, where the interests of justice require vindication of the plaintiff's rights. Thus, this Court has held that an FELA action is not barred, though brought more than three years after the cause of action accrued, where a defendant misled the plaintiff into believing that he had more than three years in which to bring the action. Glus v. Brooklyn Eastern Terminal, supra. Moreover, it has been held that the FELA limitation provision is tolled when war has prevented a plaintiff from bringing his suit, even though a defendant in such a case might not know of the plaintiff's disability and might believe that the statute of limitations renders him immune from suit. See Osbourne v. United States, supra; Frabutt v. New York, C. & St. L.R. Co., supra. In such cases a plaintiff has not slept on his rights but, rather, has been prevented from asserting them.
7
Considerations in favor of tolling the federal statute of limitations in this case are similar to those leading to an extension of the limitation period in the cases mentioned above. Petitioner here did not sleep on his rights but brought an action within the statutory period in the state court of competent jurisdiction. Service of process was made upon the respondent notifying him that petitioner was asserting his cause of action. While venue was improper in the state court, under Ohio law venue objections may be waived by the defendant,5 and evidently in past cases defendant railroads, including this respondent, had waived objections to venue so that suits by nonresidents of Ohio could proceed in state courts.6 Petitioner, then, failed to file an FELA action in the federal courts, not because he was disinterested, but solely because he felt that his state action was sufficient. Respondent could not have relied upon the policy of repose embodied in the limitation statute, for it was aware that petitioner was actively pursuing his FELA remedy; in fact, respondent appeared specially in the Ohio court to file a motion for dismissal on grounds of improper venue.
8
Both federal and state jurisdictions have recognized the unfairness of barring a plaintiff's action solely because a prior timely action is dismissed for improper venue after the applicable statute of limitations has run. In both federal and state systems of justice rules have been devised to prevent this from happening. Thus a federal statute, 28 U.S.C. § 1406(a), allows a district court 'of a district in which is filed a case laying venue in the wrong division or district * * * if it be in the interest of justice,' to 'transfer such case to any district or division in which it could have been brought.'7 Congress thereby recognized that the filing of a lawsuit 'ITSELF SHOWS THE PROPER DILIGENCE ON THE Part of the plaintiff which * * * statutes of limitation were intended to insure. If by reason of the uncertainties of proper venue a mistake is made * * * 'the interest of justice' may require that the complaint * * * be transferred in order that the plaintiff not be penalized by * * * 'time-consuming and justice-defeating technicalities." Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467, 82 S.Ct. 913, 916, 8 L.Ed.2d 39. If petitioner in this case had instituted his suit in a federal court where venue was improper, his case could simply have been transferred under § 1406(a) to a court with proper venue; the statute of limitations would not have barred his action.
9
The States have developed two methods for preserving causes of action which would otherwise be barred by the passing of a limitation period after a plaintiff has brought his action in a court with improper venue. The first method is analogous to the congressional statute, 28 U.S.C. § 1406(a), and permits transfer within the State from a court with improper venue to one where venue is proper.8 This Court has held that when a timely FELA action is brought in a state court without proper venue and service of process issues, the statute of limitations cannot bar the action when it is later transferred to a proper state court after the limitation period has run. Herb v. Pitcairn, supra. Thus, if venue for petitioner's action were proper in some other county in Ohio, and if Ohio chose to preserve improper venue actions by means of a 'transfer' statute, petitioner's action would not have been barred by the statute of limitations. The second method used by many States to preserve actions brought in a court where venue is improper is a 'savings' statute.9 Such a statute specifically gives to a plaintiff whose timely action is dismissed for procedural reasons such as improper venue a specified time in which to bring a second action. Ohio has such a statute, Ohio Rev.Code § 2305.19, and, had petitioner's action been one arising under Ohio law, he would have had an additional year in which to file his action in a proper court. State causes of action brought in a court where venue is improper are preserved by one or the other of these two methods in 44 States.10
10
These factors point to the conclusion that Congress did not intend the statute of limitations to bar a plaintiff who brings a timely FELA action in a state court of competent jurisdiction, who serves the defendant with process, and whose action is later dismissed for improper venue. This does not mean that we can accept petitioner's argument that the federal limitation provision incorporates the Ohio Saving Statute. To allow the limitation provision to incorporate state saving statutes would produce nonuniform periods of limitation in the several States. The scope of such statutes and the length of additional time they allow vary considerably from State to State.11 Moreover, not all States have saving statutes.12 This Court has long recognized that the FELA 'has a uniform operation, and neither is nor can be deflected therefrom by local statutes.' Panama R. Co. v. Johnson, 264 U.S. 375, 392, 44 S.Ct. 391, 396, 68 L.Ed. 748; Second Employers' Liability Cases (Mondou v. New York, N.H. & H.R. Co.), 223 U.S. 1, 51, 55, 32 S.Ct. 169, 175, 177, 56 L.Ed. 327. This Court has also specifically held that '(t)he period of time within which an action may be commenced is a material element in (a) uniformity of operation' which Congress would not wish 'to be destroyed by the varying provisions of the State statutes of limitation.' Engel v. Davenport, 271 U.S. 33, 39, 46 S.Ct. 410, 413, 70 L.Ed. 813. The incorporation of variant state saving statutes would defeat the aim of a federal limitation provision designed to produce national uniformity.
11
On the other hand, to accept respondent's argument that the limitation provision is not tolled under the circumstances present here would do even greater violence to the policies underlying the limitation provision and the Act. It would produce a substantial nonuniformity by creating a procedural anomaly. A plaintiff who brings a timely FELA action in a federal court where venue is improper would not be barred by the subsequent running of the limitation period, 28 U.S.C. § 1406(a), nor would a plaintiff who brings a timely FELA action in a state court where venue is improper be barred by the subsequent running of the limitation period provided that the State has a 'transfer' statute and venue is proper elsewhere in the State. Herb v. Pitcairn, supra. However, a similar plaintiff in a state court would be barred from further actions by the running of the limitation period if the State relies upon a 'saving' statute, rather than a 'transfer' statute to preserve similar state actions.13 Thus, in effect, a nonuniform limitation provision would be produced. Yet, as we have pointed out, a major reason for having a federal limitation provision was to achieve national uniformity. Engel v. Davenport, supra. Moreover, to accept respondent's position could only discourage FELA actions in the courts of certain States. Yet Congress, in providing for concurrent state and federal court jurisdiction and prohibiting removal of FELA cases to federal courts, has sought to protect the plaintiff's right to bring an FELA action in a state court. See Great Northern R. Co. v. Alexander, 246 U.S. 276, 38 S.Ct. 237, 62 L.Ed. 713. Cf. Gibson, The Venue Clause and Transportation of Lawsuits, 18 Law & Contemp. Prob. 367 (1953). Further, as we have pointed out, both Congress and the States have made clear, through various procedural statutes, their desire to prevent timely actions brought in courts with improper venue from being time-barred merely because the limitation period expired while the action was in the improper court. Finally, the humanitarian purpose of the FELA makes clear that Congress would not wish a plaintiff deprived of his rights when no policy underlying a statute of limitations is served in doing so.
12
These considerations thus lead us to conclude that when a plaintiff begins a timely FELA action in a state court having jurisdiction, and serves the defendant with process and plaintiff's case is dismissed for improper venue, the FELA limitation is tolled during the pendency of the state suit. We believe that the interests of uniformity embodied in the Act are best served by holding that this rule, tolling the statute, applies in all States regardless of whether or not a State has a 'saving' statute. We further hold, under familiar principles which have been applied to statutes of limitations, that the limitation provision is tolled until the state court order dismissing the state action becomes final by the running of the time during which an appeal may be taken or the entry of a final judgment on appeal.14 While this rule produces a minor nonuniformity since the time allowed for taking an appeal is not the same in all States, to adopt state 'saving' statutes would be far less uniform. The period 'saved' under such statutes varies widely among the States, and some States do not have 'saving' statutes. Similarly, to toll the federal statute for a 'reasonable time' after the state court orders the plaintiff's action dismissed would create uncertainty as to exactly when the limitation period again begins to run. This uncertainty would be compounded by applying the equitable doctrine of 'laches' to the federal lawsuit brought after the dismissal of the state court action. Whether laches bars an action in a given case depends upon the circumstances of that case and 'is a question primarily addressed to the discretion of the trial court.' Gardner v. Panama R. Co., 342 U.S. 29, 30, 72 S.Ct. 12, 13, 96 L.Ed. 31. To apply it here would be at variance with the policies of certainty and uniformity underlying this statute of limitations. We conclude that a uniform rule tolling the federal statute for the period of the pendency of the state court action and until the state court dismissal order becomes final is fair to both plaintiff and defendant, carries out the purposes of the FELA, and best serves the policies of uniformity and certainty underlying the federal limitation provision.
13
Applying these principles to the present case, since petitioner brought a timely suit in the Ohio court, served defendant with process, and, after finding the state action dismissed for improper venue, filed his suit in the Federal District Court only eight days after the Ohio court dismissed his action, before his time for appealing from the Ohio order had expired, his federal court action was timely. The Court of Appeals decision affirming the District Court's dismissal of petitioner's action is therefore reversed, and this case is remanded for proceedings consistent with this opinion.
14
Reversed and remanded.
15
Mr. Justice DOUGLAS, whom Mr. Justice BLACK joins, concurring.
16
The federal question presented is whether this action, timely started in the state court but not timely started if the filing date in the federal court governs, was 'commenced within three years from the day the cause of action accrued' within the meaning of 45 U.S.C. § 56. I think it was so 'commenced,' as much as was the action in Herb v. Pitcairn, 325 U.S. 77, 65 S.Ct. 954, 89 L.Ed. 1483.
17
In reaching this conclusion I do not find it necessary to rely on the fact that petitioner filed in the federal court 'before his time for appealing from the Ohio order had expired,' ante, this page. Instead I rest simply on the ground that 'when process has been adequate to bring in the parties and to start the case on a course of judicial handling which may lead to final judgment without issuance of new initial process, it is enough to commence the action within the federal statute.' 325 U.S., at 79, 65 S.Ct., at 955. (Emphasis supplied.) And see Herb v. Pitcairn, 324 U.S. 117, 132 133, 65 S.Ct. 459, 466—467, 89 L.Ed. 789 (dissenting opinion of Black, J.), setting forth the requirements for commencing an FELA action within the meaning of 45 U.S.C. § 56: (1) a bona fide effort to prosecute the claim, (2) in a court having jurisdiction, (3) resulting in notice to the defendant.
18
If after dismissal the plaintiff delays inexcusably in refiling his suit in the proper court and the defendant is prejudiced by the delay, the action will of course be barred by laches. Gardner v. Panama R. Co., 342 U.S. 29, 30—31, 72 S.Ct. 12, 13—14, 96 L.Ed. 31. That familiar equitable doctrine provides the defendant with adequate protection against delay. The Court rejects this established doctrine, however, creating a new statute of limitations of its own which makes the timeliness of a federal cause of action depend on state time requirements which were adopted for other, unrelated purposes and which vary from State to State. The long-established federal rule of laches, in contrast, is uncomplicated, uniform, and directly responsive to the problem. Laches, of course, has no application in the instant case, as petitioner filed in the federal court only eight days after his state court action had been dismissed.
1
Counsel for petitioner stated at oral argument that the constitutionality of this special venue provision for actions against railroads was being challenged in other litigation. No constitutional issue was raised in these proceedings, and we express no views upon any such question.
2
The distinction between substantive and procedural statutes of limitations appears to have arisen in cases involving conflicts of laws, see The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358; Davis v. Mills, 194 U.S. 451, 24 S.Ct. 692, 48 L.Ed. 1067; Restatement of the Law, Conflict of Laws § 605. While the embodiment of a limitation provision in the statute creating the right which it modifies might conceivably indicate a legislative intent that the right and limitation be applied together when the right is sued upon in a foreign forum, the fact that the right and limitation are written into the same statute does not indicate a legislative intent as to whether or when the statute of limitations should be tolled. Thus the 'substantive'-'procedural' distinction would seem to be of little help in deciding questions of extending the limitation period. See Glus v. Brooklyn Eastern Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770; Developments in the Law—Statutes of Limitations, 63 Harv.L.Rev. 1177, 1186—1188 (1950); Note, 72 Yale L.J. 600, 604—605 (1963).
3
See, e.g., Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 507, 77 S.Ct. 443, 448—449, 1 L.Ed.2d 493. See also Griffith, The Vindication of a National Public Policy under the Federal Employers' Liability Act, 18 Law & Contemp.Prob. 160 (1953).
4
See The Act of Limitation with a Proviso, 32 Hen. 8, c. 2 (1540): 'Forasmuch as the Time of Limitation appointed for suing * * * extend, and be of so far and long Time past, that it is above the Remembrance of any living Man, truly to try and know the perfect Certainty of such Things, as hath or shall come in Trial * * * to the great Danger of Mens Consciences that have or shall be impanelled in any Jury for the Trial of the same * * *.'
5
Skelly v. Jefferson State Bank, 9 Ohio St. 606; Ohio Southern R. Co. v. Morey, 47 Ohio St. 207, 24 N.E. 269, 7 L.R.A. 701.
6
Because of the provisions of Ohio Rev.Code § 2307.37, venue in a suit for injuries to person or property against a railroad is proper only in the county where the cause of action arose or where the plaintiff resides. Thus venue in an action by a resident of a foreign state against a railroad arising out of an accident outside the State is not proper anywhere within Ohio. Railroads can agree to venue in an Ohio state court in such a case, however, and evidently they have so agreed, as we were told on oral argument, for cases can be found which involve accidents occurring, and plaintiffs who reside, outside the county where suit was brought. See, e.g. Woodworth v. New York Central R. Co., 149 Ohio St. 543, 80 N.E.2d 142.
7
Numerous cases hold that when dismissal of an action for improper venue would terminate rights without a hearing on the merits because plaintiff's action would be barred by a statute of limitations, 'the interest of justice' requires that the cause be transferred. See, e.g., Gold v. Griffith, 190 F.Supp. 482 (D.C.N.D.Ind.); Dennis v. Galvanek, 171 F.Supp. 115 (D.C.M.D.Pa.); Schultz v. McAfee, 160 F.Supp. 210 (D.C.D.Me.).
8
Thirty-one States have transfer-of-venue statutes which appear to be relevant: Alaska Stat. § 22.10.040; Ariz.Rev. Stat.1956, § 12—404; Deering's Cal.Code Civ.Proc.Ann.1959, § 396; Colo.Rules Civ.Proc., Rule 98(f); Conn.Gen.Stat. 1958, § 52—32; Fla.Stat.1963, § 53.17 F.S.A.; Idaho Code 1947, § 5—406; Smith-Hurd's Ill.Ann.Stat.1956, c. 110, § 10; Burns' Ind.Ann.Stat.1933, § 2—1401; Kan.Code Civ.Proc.Ann.1963, § 60—611; Mass.Gen.Laws Ann.1959, c. 223, § 15; Mich.Stat.Ann.1962, § 27A.1651, Comp.Laws 1948, § 600.1651 (P.A.1961, No. 236); Minn.Stat.Ann.1947, § 542.10; Miss.Code 1942, § 1441; Mont.Rev.Codes 1947, § 93—2906; Nev.Rev.Stat. § 13.050; N.H.Rev.Stat.Ann.1955, § 507:11; N.J.Court Rules Rev. 1:27D; McKinney's N.Y.Civ.Prac.Law & Rules 1963, § 510; N.C.Gen.Stat. § 1 25; N.D. Century Code 1960, § 28—04—07; Ore.Rev.Stat. § 14.110; S.C.Code 1962, § 10—310; S.D.Code § 33.0306; Vernon's Tex.Rules Civ.Proc., Rule 257; Utah Code Ann.1953, § 78—13—8; Va.Code 1950, § 8—157; Wash.Rev.Code § 4.12.030; W.Va.Code 1961, § 5699; Wis.Stat.1963, § 261.03; Wyo.Stat.1957, Civ.Proc.Code § 1—53.
9
Thirty-one States have 'saving' statutes which appear to be relevant: Alaska Stat. § 09.10.240 (one year); Ark.Stat.1947, § 37—222 (one year); Conn.Gen.Stat.1958, § 52—592 (one year); Del.Code Ann.1953, Tit. 10, § 8117 (one year); Ga.Code Ann. § 3 808 (six months); Smith-Hurd's Ill.Ann.Stat.1956, c. 83, § 24a (one year); Burns' Ind.Ann.Stat.1933, § 2—608 (five years); Iowa Code Ann.1950, § 614.10 (six months); Kan.Code Civ.Proc.Ann.1963, § 60-518 (six months); Ky.Rev.Stat. § 413.270 (90 days); Slovenko's La.Civ.Code 1961, Art. 3555, R.S. 9:5801 (complete tolling); Me.Rev.Stat.1954, c. 112, § 99 (six months); Mass.Gen.Laws Ann.1959, c. 260, § 32 (one year); Mich.Stat.Ann.1962, § 27A.5856, Comp.Laws 1948, § 600.5856 (P.A.1961, No. 236) (90 days); Miss.Code 1942, § 744 (one year); Mont.Rev.Codes 1947, § 93—2708 (one year); N.H.Rev.Stat.Ann.1955, § 508:10 (one year); N.M.Stat.1953, § 23—1—14 (six months); McKinney's N.Y.Civ.Prac.Law & Rules 1963, § 205 (six months); N.C.Gen.Stat. § 1—25 (one year); Ohio Rev.Code 1954, § 2305.19 (one year); Okla.Stat.Ann., Tit. 12, § 100 (one year); Ore.Rev.Stat. § 12.220 (one year); R.I.Gen.Laws § 9—1—22 (one year); Tenn.Code Ann.1955, § 28—106 (one year); Vernon's Tex.Civ.Stat.Ann., Tit. 91, Art. 5539a (60 days); Utah Code Ann.1953, § 78—12—40 (one year); Vt.Stat.Ann.1958, Tit. 12, § 558 (one year); Va.Code 1950, § 8—34 (one year); W.Va.Code 1961, § 5410 (one year); Wyo.Stat.1957, § 1—26 (one year).
10
See notes 8, 9, supra, note 12, infra.
11
An additional year is allowed in 20 States, six months in six States, 90 days in two States, 60 days in one State, five years in one State, sixty days in one State, and one State imposes no definite limitation upon the additional time allowed. See note 9, supra.
12
Nineteen States appear to have no applicable saving statute. Alabama, Hawaii, Maryland, Missouri, Nebraska, and Pennsylvania appear to have neither a saving nor a transfer statute.
13
This would be true in the 19 States which lack transfer statutes. Of those 19, 13 have saving statutes and six do not. See notes 8, 9, and 11, supra.
14
Cf. Clayton Act, as amended, § 5(b), 69 Stat. 283, 15 U.S.C. § 16(b) (1958 ed.); Electric Theater Co. v. Twentieth Century-Fox Film Corp., 113 F.Supp. 937, 944 (D.C.W.D.Mo.); Subversive Activities Control Act of 1950, § 14, 64 Stat. 1001, 50 U.S.C. § 793(b) (1958 ed.).
| 78
|
380 U.S. 438
85 S.Ct. 1061
13 L.Ed.2d 951
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.METROPOLITAN LIFE INSURANCE COMPANY.
No. 98.
Argued Jan. 21, 1965.
Decided April 5, 1965.
Daniel M. Friedman, Washington, D.C., for petitioner.
Burton A. Zorn, New York City, for respondent.
Mr. Justice GOLDBERG delivered the opinion of the Court.
1
On petition of Insurance Workers International Union, AFL CIO, and over the protest of respondent, Metropolitan Life Insurance Company, as to the appropriateness of the bargaining unit, the National Labor Relations Board, in a proceeding under § 9(c) of the National Labor Relations Act, 49 Stat. 453, as amended, 29 U.S.C. § 159(c) (1958 ed.), certified the union as the bargaining representative of all debit insurance agents, including all canvassing regular and office account agents, at respondent's district office in Woonsocket, Rhode Island.1 Respondent deliberately refused to bargain with the union in order to challenge the appropriateness of the employee unit certified by the Board. See Pittsburgh Plate Glass Co. v. National Labor Relations Board, 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251. The union thereupon filed unfair labor practice charges with the Board. The Board, adhering to its prior unit determination, held that respondent violated §§ 8(a)(1) and (5) of the Labor Relations Act, 49 Stat. 452, as amended, 29 U.S.C. §§ 158(a)(1) and (5) (1958 ed.), and directed respondent to bargain with the union. 142 N.L.R.B. 491. The Court of Appeals for the First Circuit refused to enforce the order on the grounds that in light of the 'Board's failure to articulate specific reasons for its unit determination,' 327 F.2d 906, 909, the Board's apparently inconsistent determinations of appropriate units of respondent's employees in other cities or regions, see 138 N.L.R.B. 565 (Delaware); 138 N.L.R.B. 734 (Sioux City); 144 N.L.R.B. 149 (Chicago); 138 N.L.R.B. 512 (Cleveland),2 its failure to discuss in these cases what weight, if any, it gave to the factor of the extent of union organization, and the fact that in these cases the Board consistently certified the unit requested by the union, the Court of Appeals could 'only conclude that the * * * Board * * * has indeed * * * (regarded) the extent of union organization as controlling in violation of § 9(c)(5) of the Act.' 327 F.2d, at 911. We granted certiorari because of an aparent conflict between this decision and the decisions of the Court of Appeals for the Third Circuit in Metropolitan Life Ins. Co. v. National Labor Relations Board, 328 F.2d 820, petition for certiorari pending, No. 56 this Term (granted, 85 S.Ct. 1325), which sustained the Board's determination in the Delaware case, 138 N.L.R.B. 565, and the Court of Appeals for the Sixth Circuit, Metropolitan Life Ins. Co. v. National Labor Relations Board, 330 F.2d 62, petition for certiorari pending, No. 229 this Term (granted, 85 S.Ct. 1326), which sustained the Board's determination in the Cleveland case, 138 N.L.R.B. 512. See also National Labor Relations Board v. Western & Southern Life Ins. Co., 328 F.2d 891 (C.A.3d Cir.), petition for certiorari pending, No. 91 this Term (granted, 85 S.Ct. 1326).
2
Section 9(b) of the National Labor Relations Act, 49 Stat. 453, as amended, 29 U.S.C. § 159(b) (1958 ed.) provides:
3
'The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof * * *.'
4
This broad delegation of authority, see Pittsburgh Glass Co. v. National Labor Relations Board, supra, was limited in 1947 by the enactment of § 9(c)(5) of the Act, 61 Stat. 144, 29 U.S.C. § 159(c)(5) (1958 ed.), which provides that '(i)n determining whether a unit is appropriate for the purposes specified in subsection (b) of this section the extent to which the employees have organized shall not be controlling.'
5
Although it is clear that in passing this amendment Congress intended to overrule Board decisions where the unit determined could only be supported on the basis of the extent of organization, both the language and legislative history3 of § 9(c)(5) demonstrate that the provision was not intended to prohibit the Board from considering the extent of organization as one factor, though not the controlling factor, in its unit determination.4
6
The Court of Appeals here properly recognized this effect of § 9(c)(5), but held, in light of the unarticulated bases of decision, and what appeared to it to be inconsistent determinations approving units requested by the union, that the only conclusion that it could reach was that the Board has made the extent of organization the controlling factor, in violation of the congressional mandate. We agree with the Court of Appeals that the enforcing court should not overlook or ignore an evasion of the § 9(c)(5) command. We further agree that in determining whether or not there has been such an evasion, the results in other recent decisions of the Board are relevant. We cannot, however, agree that the only possible conclusion here is that the Board has violated § 9(c) (5). Cf. Metropolitan Life Ins. Co. v. National Labor Relations Board (Cleveland), supra; Metropolitan Life Ins. Co. v. National Labor Relations Board (Delaware), supra.
7
On the other hand, due to the Board's lack of articulated reasons for the decisions in and distinctions among these cases,5 the Board's action here cannot be properly reviewed. When the Board so exercises the discretion given to it by Congress, it must 'disclose the basis of its order' and 'give clear indication that it has exercised the discretion with which Congress has empowered it.'6 Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 197, 61 S.Ct. 845, 854, 85 L.Ed. 1271. See Burlington Truck Lines v. United States, 371 U.S. 156, 167—169, 83 S.Ct. 239, 245—246, 9 L.Ed.2d 207; Interstate Commerce Comm'n v. J—T Transport Co., 368 U.S. 81, 93, 82 S.Ct. 204, 211, 7 L.Ed.2d 147. Although Board counsel in his brief and argument before this Court has rationalized the different unit determinations in the variant factual situations of these cases on criteria other than a controlling effect being given to the extent of organization, the integrity of the administration process requires that 'courts may not accept appellate counsel's post hoc rationalizations for agency action * * *.' Burlington Truck Lines v. United States, supra, 371 U.S. at 168, 83 S.Ct. at 246; see Securities & Exchange Comm'n v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995. For reviewing courts to substitute counsel's rationale or their discretion for that of the Board is incompatible with the orderly function of the process of judicial review. Such action would not vindicate, but would deprecate the administrative process for it would 'propel the court into the domain which Congress has set aside exclusively for the administrative agency.' Securities & Exchange Comm'n v. Chenery Corp., supra, at 196, 67 S.Ct. at 1577.
8
Accordingly, the judgment of the Court of Appeals is vacated and the case remanded to that court with instructions to remand it to the Board for further proceedings consistent with this opinion. It is so ordered.
9
Judgment of Court of Appeals vacated and case remanded with instructions.
10
Mr. Justice DOUGLAS, dissenting.
11
A reading of the Court's opinion reveals the fallacies on which the Board proceeded. The employer sought review of the Board's order, asking that it be set aside. Concededly it should be. But we need not act as amicus for the Board, telling it what to do. The Board is powerful and resourceful and can start over again should it wish. How stale this record may be we do not know. Neither of the parties asks for a remand. They are willing to stand or fall on the present record; and we should resolve the controversy in that posture.
1
The Decision and Direction of Election issued by the Board on October 24, 1962, is unreported.
2
In the Delaware case the Board certified as a unit two of respondent's three district offices in the State; in the Sioux City case the unit certified was respondent's single district office in Sioux City, Iowa, together with two detached offices under its administrative control in Fargo, North Dakota, and Sioux Falls, South Dakota, 284 and 120 miles distant, respectively, from Sioux City; in the Chicago case the unit certified was that all of the district offices within the city limits of Chicago, although some of the city offices had territories extending into the suburbs and some of the suburban offices' territories extended into the city; in the Cleveland case the certified unit consisted of respondent's six offices in the city as well as three offices in the suburbs; finally, in the instant case the unit certified was respondent's single district office in Woonsocket, Rhode Island, out of the eight offices in the State and the 75 offices in respondent's 'New England Territory.' In addition to the instant case and the Sioux City case, the Board has certified single district offices in Western & Southern Life Ins. Co., 138 N.L.R.B. 538; Metropolitan Life Ins. Co. (Meriden and New London), 147 N.L.R.B. 69; Metropolitan Life Ins. Co. (Holyoke), 147 N.L.R.B. 688; Metropolitan Life Ins. Co. (Chicago Heights), 148 N.L.R.B. No. 145. See also Metropolitan Life Ins. Co. (Detroit), 146 N.L.R.B. 1577; Metropolitan Life Ins. Co. (Toledo), 146 N.L.R.B. 967; Equitable Life Ins. Co., 138 N.L.R.B. 529.
3
See H.R.Rep.No.245, 80th Cong., 1st Sess., 37—38; H.R.Conf.Rep.No.510, 80th Cong., 1st Sess., 48, U.S.Code Congressional Service, 1947, p. 1135; 93 Cong.Rec. 6444, 6860.
4
See National Labor Relations Board, Twenty-Eighth Annual Report 51 (1963), which properly states this statutory test: 'Although extent of organization may be a factor evaluated, under section 9(c)(5) it cannot be given controlling weight.'
5
The Board's entire basis of decision on this issue in this case was set forth in the following footnote in its unit determination decision:
'The Employer has eight district offices and two detached offices in Rhode Island, and has only one district office in Woonsocket. The nearest district office is located 12 miles away in Pawtucket. In the prior proceeding in Case No. 4—RC—4865, based on the same record incorporated by reference herein, we found that each of Employer's individual district offices was in effect a separate administrative entity through which the Employer conducted its business operations, and therefore was inherently appropriate for purposes of collective bargaining. See Metropolitan Life Insurance Company, 138 NLRB . . . (565). Applying the tests set forth therein, we find that, since there is no recent history of collective bargaining, no union seeking a larger unit, and the district office sought is located in a separate and distinct geographical area, the employees located at the Woonsocket district office constitute an appropriate unit. See also Metropolitan Life Insurance Company, . . . (138) NLRB . . . (734).'
The cases cited are the Board's decisions in the Delaware and Sioux City cases discussed supra. They do not appear, because of their variant factual circumstances, to be direct authority for decision in this case. Moreover, the Board made no attempt to distinguish other cases, particularly the Chicago and Cleveland cases discussed supra, in which it certified different types of units. The unfair labor practice proceeding added nothing to the analysis, as the trial examiner did not review the issue, as he felt 'bound by the Board's ruling in the representation proceeding,' 142 N.L.R.B., at 492, and the Board affirmed the trial examiner's ruling without discussion, id., at 491.
6
Of course, the Board may articulate the basis of its order by reference to other decisions or its general policies laid down in its rules and its annual reports, reflecting its 'cumulative experience,' National Labor Relations Board v. Seven-Up Bottling Co., 344 U.S. 344, 349, 73 S.Ct. 287, 290, 97 L.Ed. 377, so long as the basis of the Board's action, in whatever manner the Board chooses to formulate it, meets the criteria for judicial review. Cf. Swayne & Hoyt, Ltd. v. United States, 300 U.S. 297, 299, 304, 57 S.Ct. 478, 479, 481, 81 L.Ed. 659; Radio & TV Local 1264 v. Broadcast Serv., 380 U.S. 255, 85 S.Ct. 876.
| 67
|
380 U.S. 513
85 S.Ct. 1153
14 L.Ed.2d 46
VETERANS OF the ABRAHAM LINCOLN BRIGADE, Petitioner,v.SUBVERSIVE ACTIVITIES CONTROL BOARD.
No. 65.
Argued Dec. 9, 1964.
Decided April 26, 1965.
Leonard B. Boudin, Washington, D.C., for petitioner.
Kevin T. Maroney and Bruce J. Terris, Washington, D.C., for respondent.
PER CURIAM.
1
Petitioner was ordered by the Subversive Activities Control Board to register as a Communist-front organization under § 7 of the Subversive Acitvities Control Act of 1950, as amended, 64 Stat. 993, 50 U.S.C. § 786 (1958 ed.), and the Court of Appeals for the District of Columbia Circuit affirmed. 117 U.S.App.D.C. 404, 331 F.2d 64. We granted certiorari, 377 U.S. 989, 84 S.Ct. 1916, 12 L.Ed.2d 1043. In this case, the order to register was based almost exclusively on events before 1950, and very largely on events before 1940. The hearings themselves were concluded in November 1954, more than 10 years ago. On so stale a record we do not think it is either necessary or appropriate that we decide the serious constitutional questions raised by the order. See American Committee for Protection of Foreign Born v. Subversive Activities Control Board, 380 U.S. 503, 85 S.Ct. 1148. The judgment is vacated and the cause remanded for proceedings consistent with this opinion.
2
It is so ordered.
3
Judgment vacated and cause remanded.
4
Mr. Justice WHITE took no part in the decision of this case.
5
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice HARLAN concur, dissenting.
6
I think this case is ripe for decision. The controversy is real, not feigned. All of the relevant facts one needs to know to resolve the constitutional question are exposed in the present record.
7
This is the famous brigade of Americans who fought in the Spanish Civil War against Franco. Approximately 3,000 American youths were members; and of these only about 1,800 survived. Petitioner was formed in 1939 as an unincorporated association and was incorporated in 1940 under the laws of New York, its charter being forfeited in 1952 for failure to file required reports.
8
The record is detailed. The Court of Appeals, which sustained the Subversive Activities Control Board in finding that petitioner is a 'Communist-front organization' within the meaning of § 3(4) of the Subversive Activities Control Act of 1950, as amended, 64 Stat. 989, 50 U.S.C. § 782(4) (117 U.S.App.D.C. 404, 331 F.2d 64), spoke of 'the tremendous volume of the record' and the 'almost numberless facets of fact involved.' Id., at 413, 331 F.2d, at 73. The history of the formation of the Brigade, its relationship with the Communist Party and with Communists, the manner in which international brigades of this kind were employed by Communists, the role of Communists in forming this Brigade, the affiliations of officers of the Brigade, the ideas and program promoted by the Brigade's official organ, Volunteer for Liberty, the efforts of the Brigade to get its members employed in unions, offices, or factories where a Communist unit or functionary was located, the extent to which the Brigade responded to Party discipline, and the extent to which the Brigade aided and supported the Party—all were fully explored.
9
Since 1950 the Brigade's affairs have been run almost entirely by an Executive Secretary and a National Commander. Since 1950 its activities have consisted principally of social affairs, rehabilitating and resettling veterans and getting them employment, making statements in opposition to the Franco regime, supporting its members who were indicted under the Smith Act, and defending itself in this proceeding.
10
This proceeding started in 1953, when the Attorney General petitioned the Board for an order requiring the Brigade to register as a Communist-front organization. Hearings before the Board commenced May 3, 1954, and ended November 16, 1954. Over a year later the Board issued a registration order against the Brigade, and its report in the case. The final order of the Board is dated December 21, 1955. The opinion of the Court of Appeals comes eight years later* and is dated December 17, 1963.
11
But no one suggests that there have been any basic changes in the pattern of the Brigade's activities either since the Board's order or the Court's judgment. The Court of Appeals found no difficulty in concluding that as of the date of the record the Brigade continued to be what it had been in the past:
12
'The events in 1950—1954 were not factually isolated. The Brigade continued to operate after 1950. It had the same officers and occupied the same offices. It continued to publish its magazine. The character and tone of its declarations upon the subjects with which it dealt were the same as those it had always utilized. So that factually, on this record, the post-1950 activities and policies appear as a continued, although diminished, stream, rather than as a separate, new phase of life.' 117 U.S.App.D.C., at 412—413, 331 F.2d, at 72—73.
13
None of the parties before us has suggested that the record is stale or incomplete; and as noted in my dissenting opinion in American Committee for Protection of Foreign Born v. Subversive Activities Control Board, 380 U.S. 507, 85 S.Ct. 1151, the Act contains a special provision covering that contingency. None of the parties before us has suggested that we need to know more about the Brigade since the Board's decision in 1955. We are told by counsel that what the Brigade once was, it still is.
14
There is one way and one way only in which this case is getting stale with the passage of time. And that is that the Brigade's membership is not being renewed but depleted. Its membership, as noted, is made up of Americans who fought in the Spanish War against Franco. The mortality table has caused that list to shrink and it will continue to shrink. In 1955 there were only 600 survivors of the Brigade, not all of whom were members of petitioner. Hence in some months or years the case will return to us more stale than it is at the present time.
15
With all due respect, I think it is indefensible not to decide the important constitutional questions tendered here and now.
*
The finding of the Board that the Communist Party was a Communist-action organization was a product of the litigation which terminated on June 5, 1961, with this Court's decision in Communist Party v. Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625. That litigation was in progress in the years between 1950 and 1961; and since the finding that the Party was a Communist- action organization was necessary to the Board's result in this case, the present case was held by the Court of Appeals pending the outcome of the Communist Party litigation. See 117 U.S.App.D.C. 404, at 406, 331 F.2d 64, at 66. The present case was then argued before the Court of Appeals in October of 1962, and decision was rendered on December 17, 1963.
| 23
|
380 U.S. 503
85 S.Ct. 1148
14 L.Ed.2d 39
AMERICAN COMMITTEE FOR PROTECTION OF FOREIGN BORN, Petitioner,v.SUBVERSIVE ACTIVITIES CONTROL BOARD.
No. 44.
Argued Dec. 8, 9, 1964.
Decided April 26, 1965.
Joseph Forer, Washington, D.C., for petitioner.
Bruce J. Terris, Washington, D.C., for respondent.
PER CURIAM.
1
The Court of Appeals for the District of Columbia Circuit affirmed an order of the Subversive Activities Control Board requiring that the petitioner register as a 'Communist-front' organization under § 7 of the Subversive Activities Control Act of 1950, as amended, 64 Stat. 993, 50 U.S.C. § 786 (1958 ed.). 117 U.S.App.D.C. 393, 331 F.2d 53. We granted certiorari. 377 U.S. 915, 84 S.Ct. 1181, 12 L.Ed.2d 185.
2
Under the statute, a determination that an organization is a Communist front must rest on findings that it '(A) is substantially directed, dominated, or controlled by a Communist-action organization, and (B) is primarily operated for the purpose of giving aid and support to a Communist-action organization * * *' § 3(4), 64 Stat. 989, 50 U.S.C. § 782(4) (1958 ed.). In Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625, this Court sustained the Board's determination that the Communist Party is a 'Communistaction organization' within the meaning of § 3(3) of the Act; in doing so, the Court upheld the registration requirement against First Amendment attack and found an objection based on the Fifth Amendment privilege against self-incrimination not ripe for decision.
3
In the present case the Board's findings that petitioner is a 'Communist front' were based primarily upon evidence taken at a hearing which was concluded in 1955. The findings which support the conclusion that the petitioner is controlled by and primarily operated for the purpose of giving aid and support to the Communist Party rest in substantial measure upon evidence of the activities of Abner Green, found to be a Party member expressly assigned in 1941 to be petitioner's executive secretary. Green died in 1959. The Board's order was filed on June 27, 1960, but the record discloses no findings or evidence concerning petitioner's activities after Green's death.1 In the circumstances we think that the record should be brought up to date to take account of supervening events. Since a registration order operates prospectively, it is apparent that reasonably current aid and control must be established to justify a registration order. Our Communist Party decision on the Communist-action provisions did not necessarily foreclose petitioner's constitutional questions bearing on the Communist-front provisions.2 Since petitioner's current status is not clear on this record, decision of the serious constitutional questions raised by the order is neither necessary nor appropriate.
4
The judgment of the Court of Appeals is vacated, and the cause remanded for proceedings consistent with this opinion.
5
It is so ordered.
6
Judgment vacated and cause remanded.
7
Mr. Justice WHITE took no part in the decision of this case.
8
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice HARLAN concur, dissenting.
9
I dissent from the refusal of the Court to face up to the important constitutional questions squarely presented by this case. The Court's excuse is that Abner Green, the executive secretary, who was prominent in petitioner's affairs, died after the close of the hearings.1
10
Petitioner has never, so far as appears, alleged any facts indicating that with the death of Abner Green the nature of the Committee underwent any significant change. Yet this suggestion could have been made to the Board prior to its decision; and it could have been made to the Court of Appeals, for the Act in § 14(a) specifically provides: 'If either party shall apply to the court for leave to adduce additional evidence, and shall show to the satisfaction of the court that such additional evidence is material, the court may order such additional evidence to be taken before the Board and to be adduced upon the proceeding in such manner and upon such terms and conditions as to the court may seem proper.'2
11
In determining that petitioner was a Communist-front organization, the Board was directed by the Act to consider other evidence in addition to evidence that petitioner's executive secretary was a member of the Communist Party. Section 13(f) sets forth four different categories of evidence which must be considered by the Board in deciding whether an organization is a front: (1) the extent to which those who are active in the direction of the alleged front are also active in a Communist-action organization; (2) the extent to which financial or other support is derived from a Communist-action organization; (3) the extent to which the alleged front's funds and personnel are used to promote the objectives of a Communist-action organization; and (4) the extent to which the alleged front's positions on matters of policy do not deviate from the Communist line. Evidence in all four of these categories was adduced.
12
The Court takes a peculiar view of the evidence when it surmises that the death of petitioner's executive secretary may suddenly have changed the nature of the organization. It forgets what the Court said in the Communist Party case: 'Where the current character of an organization and the nature of its connections with others is at issue, of course past conduct is pertinent. Institutions, like other organisms, are predominantly what their past has made them. History provides the illuminating context within which the implications of present conduct may be known.' 367 U.S. 1, 69, 81 S.Ct. 1357, 1396.3
13
The Board found that the petitioner had existed in the United States since 1932 or 1933 and that it was eight or nine years later that Green became its executive secretary. The evidence before the Board established that Green was the 'top functionary' of petitioner's national organization and that he was the 'most influential official' therein, but he was not the only top official who was found to be a member of the Communist Party. The number two person in the national organization was Harriet Barron, the administrative secretary, who with Green carried on the organization's day-to-day activities. She was found to have been a member of the Communist Party at the time of the hearings and for a number of years prior thereto.
14
A great deal of the evidence heard by the Board related to the local branches of the petitioner. The Board found: 'The management, direction, and supervision of the branches (local committees) have been by Communist Party members such as Ruth Hillsgrove for the New England Committee; Evelyn Abelson and Bess Steinberg for the Western Pennsylvania Committee; Saul Grossman for the Michigan Committee; Marion Kinney for the Northwest Committee; and Delphine Smith for the Los Angeles Committee.' This evidence establishes that the petitioner cannot possibly be regarded as a one-man organization. It is true that Green was the leader of the national organization in New York and that he appeared at some meetings of the local committees. But the nature and existence of these local committees, which the Board regarded as 'part of' the national organization, indicate clearly that the organization had an existence above and beyond Green himself.
15
In this regard the genesis of the Northwest Committee is instructive. The Board found that the organization of this branch resulted from discussions in Communist Party meetings in Seattle about the need for a local branch of the American Committee to defend Party members. This was in 1949 when the Party designated member Kinney to head this organization. Green was not present at the meetings which led to the formation of this branch, and seems to have had little, if any, part in it. The first mention of Green in connection with this branch seems to be the testimony that in 1952 he made a speech at a meeting that was in some way connected with the activities of the local committee.
16
The ultimate finding of the Board as to these local organizations was: 'We find on the entire record that the American Committee and the various area or local committees are associated together for joint action on particular subjects. Together they constitute a voluntary association and one organization within the meaning of the term 'organization' set forth in section 3(2) of the statute.' (Emphasis supplied.) One simply cannot read the record and come to the conclusion that this congeries of individual organizations, loosely united under the aegis of the national committee, was merely Green's alter ego and would therefore change upon his death.
17
A Communist-front organization is one which is controlled by a Communist-action organization and which is primarily operated for the purpose of giving aid and support to Communism. To prove this latter part of the definition the Attorney General introduced before the Board evidence showing that the Committee engaged in the legal defense of Party members who were defendants in deportation and denaturalization proceedings. Much of this evidence appears to have concerned the activities of the local committees. The Board found, for example, that 'the cases of Joe Weber, Refugio Ramon Martinez, and James MacKay (were) handled by the Midwest Committee; the Mexican deportees and a group referred to as the Terminal Island Four (were) handled by the Los Angeles Committee; and the Giacomo Quattrone-Ponzi case (was) handled by the New England Committee.' There is no reason to believe that this work of the local committees has been discontinued because of Green's death.
18
The case is very much alive; and the record is by no means stale. We should face up to the serious issues presented and in no way affected by Abner Green's death.
19
Mr. Justice BLACK, dissenting.
20
While I have joined the dissents of Mr. Justice DOUGLAS from the Court's action in remanding these cases without deciding the important constitutional questions involved, I have additional reasons for objecting to the remands. In Communist Party of U.S. v. Subversive Activities Control Board, 367 U.S. 1, 137, 81 S.Ct. 1357, 1431, 6 L.Ed.2d 625 (dissenting opinion), I stated at some length my reasons for believing that the Subversive Activities Control Act of 1950, as amended, 64 Stat. 987, 50 U.S.C. §§ 781 826 (1958 ed.), on which the Government's case here rests, violates a number of provisions of our Constitution and Bill of Rights in many respects. See also Aptheker v. Secretary of State, 378 U.S. 500, 517, 84 S.Ct. 1659, 1669, 12 L.Ed.2d 992 (concurring opinion). I think that among other things the Act is a bill of attainder; that it imposes cruel, unusual and savage punishments for thought, speech, writing, petition and assembly; and that it stigmatizes people for their beliefs, associations and views about politics, law, and government. The Act has borrowed the worst features of old laws intended to put shackles on the minds and bodies of men, to make them confess to crime, to make them miserable while in this country, and to make it a crime even to attempt to get out of it.* It is difficult to find laws more thought-stifling than this one even in countries considered the most benighted. Previous efforts to have this Court pass on the constitutionality of the various provisions of this freedom-crushing law have met with frustration on one excuse or another. I protest against following this course again. My vote is to hear the case now and hold the law to be what I think it is—a wholesale denial of what I believe to be the constitutional heritage of every freedom-loving American.
1
Petitioner raised the point when, on February 11, 1960, the Board heard oral argument on the sufficiency of the evidence. At that time, petitioner's counsel urged as an independent reason for 'throwing out this case' that '(t)his case is stale and you ought to throw it out because you can't enter an order under the Act * * *. (The Attorney General) talks about what a devil Abner Green was, or Harriet Barron, the two people he said ran the organization. Well, the fact is that it has been years since Harriet Barron has had any connection with the (petitioner), and Abner Green to my great sorrow is now dead. Things have changed, and times have changed * * * you can't conscientiously enter an order in the present in view of the terrific amount of time that has passed and the changes in time * * *.' XVIII Transcript 7492 7493. The Board made no mention of this argument in its report.
2
That the issues are not plainly foreclosed is illustrated by President Truman's veto message:
'Insofar as the bill would require registration by the Communist Party itself, it does not endanger our traditional liberties. However, the application of the registration requirements to so-called Communist-front organizations can be the greatest danger to freedom of speech, press and assembly, since the alien and sedition laws of 1798. This danger arises out of the criteria or standards to be applied in determining whether an organization is a Communist-front organization.
'(T)he bill would permit such a determination to be based solely upon 'the extent to which the positions taken or advanced by it from time to time on matters of policy do not deviate from those' of the Communist Movement.
'This provision could easily be used to classify as a Communist-front organization any organization which is advocating a single policy or objective which is also being urged by the Communist Party or by a Communist foreign government. * * * Thus, an organization which advocates low-cost housing for sincere humanitarian reasons might be classified as a Communist-front organization because the Communists regularly exploit slum conditions as one of their fifth-column techniques.' H.R.Doc. No. 708, 81st Cong., 2d Sess., p. 6. See also Note, 74 Yale L.J. 738 (1965).
1
The Attorney General began the present proceeding in 1953 for an order requiring the petitioner to register as a Communist-front organization, alleging that the petitioner was controlled by the Communist Party. (Immediately prior to the commencement of this proceeding the Board had issued its report of Arpil 20, 1953, finding the Party to be a Communist-action organization.) Hearings were had before an examiner and concluded sometime in 1956. The examiner's recommended decision was issued on September 10, 1957. While the Board had the case under advisement, the second remand in the Communist Party litigation occurred. (The history of this litigation is set out in full in Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1, at 19—22, 81 S.Ct. 1357, 1370—1372, 6 L.Ed.2d 625.) It was therefore necessary to postpone action in the present case because petitioner here was alleged to be a front for the Communist Party, and the provisions of the Act would not come into play as to petitioner unless the Party were proved to be a Communist-action organization—which was of course the purpose of the Communist Party litigation.
In 1959, after the Board's second modified report in the Communist Party proceeding, the Board reactivated this case and ordered the Attorney General to make available to petitioner certain documents which intervening judicial decisions had suggested were producible. Further proceedings were had in this connection; further oral argument was presented to the Board; and the Board's report and order were filed on June 27, 1960.
On appeal the Court of Appeals on January 8, 1962, remanded the case to the Board to allow petitioner to introduce evidence of alleged perjured testimony. On March 8, 1962, the Board reaffirmed its earlier order. On December 17, 1963, the Court of Appeals affirmed the Board's order. We granted certiorari on April 27, 1964.
2
On oral argument before the Board on February 11, 1960, counsel for the petitioner did argue in a general way that the cae was 'stale' simply as the result of the 'passage of time.' In the course of this argument counsel observed that 'Abner Green to my great sorrow is now dead. Things have changed, and times have changed. Standards have changed, and everybody has changed, I think, but the Department of Justice * * *.' This passing reference to Green's death falls far short of a serious effort to show that petitioner was a legally different entity after Green's death: for example, petitioner made no effort to reopen the record for evidence concerning Green's successor, any new policies now in effect, or the like. And, as noted, no effort was made in the Court of Appeals to have the case remanded for the taking of new evidence.
3
In that case the Court of Appeals observed:
'(I)t is rarely, if ever, possible to prove present nature by some instantaneous, contemporaneous fact, totally ignoring the whole of the past. Not only is the past clearly pertinent, it may be quite material to a determination of present nature. Whether it is material depends upon whether there is affirmative evidence of a departure from the established past. In the ordinary affairs of life and in ordinary litigation, if a person or an organization is shown to have had over many years a certain policy and program, and no more is shown, the conclusion is clearly indicated that he or it has the same policy and program in the present.' 96 U.S.App.D.C. 66, 105, 223 F.2d 531, 570.
*
In Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992, this Court held unconstitutional on its face the whole of § 6 of the Subversive Activities Control Act of 1950, as amended, 64 Stat. 993, 50 U.S.C. § 785 (1958 ed.), which made it unlawful for any member of an organization registered under the Act 'to make application for a passport * * * or * * * to use or attempt to use any such passport.'
| 23
|
380 U.S. 460
85 S.Ct. 1136
14 L.Ed.2d 8
Eddie V. HANNA, Petitioner,v.Edward M. PLUMER, Jr., Executor.
No. 171.
Argued Jan. 21, 1965.
Decided April 26, 1965.
Albert P. Zabin, Boston, Mass., for petitioner, pro hac vice, by special leave of Court.
James J. Fitzpatrick, Boston, Mass., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The question to be decided is whether, in a civil action where the jurisdiction of the United States district court is based upon diversity of citizenship between the parties, service of process shall be made in the manner prescribed by state law or that set forth in Rule 4(d)(1) of the Federal Rules of Civil Procedure.
2
On February 6, 1963, petitioner, a citizen of Ohio, filed her complaint in the District Court for the District of Massachusetts, claiming damages in excess of $10,000 for personal injuries resulting from an automobile accident in South Carolina, allegedly caused by the negligence of one Louise Plumer Osgood, a Massachusetts citizen deceased at the time of the filing of the complaint. Respondent, Mrs. Osgood's executor and also a Massachusetts citizen, was named as defendant. On February 8, service was made by leaving copies of the summons and the complaint with respondent's wife at his residence, concededly in compliance with Rule 4(d)(1), which provides:
3
'The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:
4
'(1) Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein * * *.'
5
Respondent filed his answer on February 26, alleging, inter alia, that the action could not be maintained because it had been brought 'contrary to and in violation of the provisions of Massachusetts General Laws (Ter.Ed.) Chapter 197, Section 9.' That section provides:
6
'Except as provided in this chapter, an executor or administrator shall not be held to answer to an action by a creditor of the decrased which is not commenced within one year from the time of his giving bond for the performance of his trust, or to such an action which is commenced within said year unless before the expiration thereof the writ in such action has been served by delivery in hand upon such executor or administrator or service thereof accepted by him or a notice stating the name of the estate, the name and address of the creditor, the amount of the claim and the court in which the action has been brought has been filed in the proper registry of probate. * * *' Mass.Gen.Laws Ann., c. 197, § 9 (1958).
7
On October 17, 1963, the District Court granted respondent's motion for summary judgment, citing Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520, and Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, in support of its conclusion that the adequacy of the service was to be measured by § 9, with which, the court held, petitioner had not complied. On appeal, petitioner admitted noncompliance with § 9, but argued that Rule 4(d)(1) defines the method by which service of process is to be effected in diversity actions. The Court of Appeals for the First Circuit, finding that '(r)elatively recent amendments (to § 9) evince a clear legislative purpose to require personal notification within the year,'1 concluded that the conflict of state and federal rules was over 'a substantive rather than a procedural matter,' and unanimously affirmed. 331 F.2d 157. Because of the threat to the goal of uniformity of federal procedure posed by the decision below,2 we granted certiorari, 379 U.S. 813, 85 S.Ct. 52, 13 L.Ed.2d 27.
8
We conclude that the adoption of Rule 4(d)(1), designed to control service of process in diversity actions,3 neither exceeded the congressional mandate embodied in the Rules Enabling Act nor transgressed constitutional bounds, and that the Rule is therefore the standard against which the District Court should have measured the adequacy of the service. Accordingly, we reverse the decision of the Court of Appeals.
9
The Rules Enabling Act, 28 U.S.C. § 2072 (1958 ed.), provides, in pertinent part:
10
'The Supreme Court shall have the power to prescribe, by general rules, the forms of process, writs, pleadings, and motions, and the practice and procedure of the district courts of the United States in civil actions.
11
'Such rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury * * *.'
12
Under the cases construing the scope of the Enabling Act, Rule 4(d)(1) clearly passes muster. Prescribing the manner in which a defendant is to be notified that a suit has been instituted against him, it relates to the 'practice and procedure of the district courts.' Cf. Insurance Co. v. Bangs, 103 U.S. 435, 439, 26 L.Ed. 580.
13
'The test must be whether a rule really regulates procedure, the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them.' Sibbach v. Wilson & Co., 312 U.S. 1, 14, 61 S.Ct. 422, 426, 85 L.Ed. 479.4
14
In Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 66 S.Ct. 242, 90 L.Ed. 185, this Court upheld Rule 4(f), which permits service of a summons anywhere within the State (and not merely the district) in which a district court sits:
15
'We think that Rule 4(f) is in harmony with the Enabling Act * * *. Undoubtedly most alterations of the rules of practice and procedure may and often do affect the rights of litigants. Congress' prohibition of any alteration of substantive rights of litigants was obviously not addressed to such incidental effects as necessarily attend the adoption of the prescribed new rules of procedure upon the rights of litigants who, agreeably to rules of practice and procedure, have been brought before a court authorized to determine their rights. Sibbach v. Wilson & Co., 312 U.S. 1, 11—14, 61 S.Ct. 422, 425—427, 85 L.Ed. 479. The fact that the application of Rule 4(f) will operate to subject petitioner's rights to adjudication by the district court for northern Mississippi will undoubtedly affect those rights. But it does not operate to abridge, enlarge or modify the rules of decision by which that court will adjudicate its rights.' Id., at 445—446, 66 S.Ct. at 246.
16
Thus were there no conflicting state procedure, Rule 4(d)(1) would clearly control. National Equipment Rental, Limited v. Szukhent, 375 U.S. 311, 316, 84 S.Ct. 411, 414, 11 L.Ed.2d 354. However, respondent, focusing on the contrary Massachusetts rule, calls to the Court's attention another line of cases, a line which like the Federal Rules—had its birth in 1938. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, overruling Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865, held that federal courts sitting in diversity cases, when deciding questions of 'substantive' law, are bound by state court decisions as well as state statutes. The broad command of Erie was therefore identical to that of the Enabling Act: federal courts are to apply state substantive law and federal procedural law. However, as subsequent cases sharpened the distinction between substance and procedure, the line of cases following Erie diverged markedly from the line construing the Enabling Act. Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, made it clear that Erie-type problems were not to be solved by reference to any traditional or common-sense substance-procedure distinction:
17
'And so the question is not whether a statute of limitations is deemed a matter of 'procedure' in some sence. The question is * * * does it significantly affect the result of a litigation for a federal court to disregard a law of a State that would be controlling in an action upon the same claim by the same parties in a State court?' 326 U.S., at 109, 65 S.Ct., at 1470.5
18
Respondent, by placing primary reliance on York and Ragan, suggests that the Erie doctrine acts as a check on the Federal Rules of Civil Procedure, that despite the clear command of Rule 4(d)(1), Erie and its progeny demand the application of the Massachusetts rule. Reduced to essentials, the argument is: (1) Erie, as refined in York, demands that federal courts apply state law whenever application of federal law in its stead will alter the outcome of the case. (2) In this case, a determination that the Massachusetts service requirements obtain will result in immediate victory for respondent. If, on the other hand, it should be held that Rule 4(d)(1) is applicable, the litigation will continue, with possible victory for petitioner. (3) Therefore, Erie demands application of the Massachusetts rule. The syllogism possesses an appealing simplicity, but is for several reasons invalid.
19
In the first place, it is doubtful that, even if there were no Federal Rule making it clear that in-hand service is not required in diversity actions, the Erie rule would have obligated the District Court to follow the Massachusetts procedure. 'Outcome-determination' analysis was never intended to serve as a talisman. Byrd v. Blue Ridge Rural Elec. Cooperative, 356 U.S. 525, 537, 78 S.Ct. 893, 900, 2 L.Ed.2d 953. Indeed, the message of York itself is that choices between state and federal law are to be made not by application of any automatic, 'litmus paper' criterion, but rather by reference to the policies underlying the Erie rule. Guaranty Trust Co. of New York v. York, supra, 326 U.S. at 108—112, 65 S.Ct. at 1469—1471.6
20
The Erie rule is rooted in part in a realization that it would be unfair for the character of result of a litigation materially to differ because the suit had been brought in a federal court.
21
'Diversity of citizenship jurisdiction was conferred in order to prevent apprehended discrimination in state courts against those not citizens of the state. Swift v. Tyson (16 Pet. 1, 10 L.Ed. 865) introduced grave discrimination by noncitizens against citizens. It made rights enjoyed under the unwritten 'general law' vary according to whether enforcement was sought in the state or in the federal court; and the privilege of selecting the court in which the right should be determined was conferred upon the noncitizen. Thus, the doctrine rendered impossible equal protection of the law.' Erie R. Co. v. Tompkins, supra, 304 U.S. at 74—75, 58 S.Ct. at 820—821.7
22
The decision was also in part a reaction to the practice of 'forum-shopping' which had grown up in response to the rule of Swift v. Tyson. 304 U.S., at 73—74, 58 S.Ct. at 819—820.8 That the York test was an attempt to effectuate these policies is demonstrated by the fact that the opinion framed the inquiry in terms of 'substantial' variations between state and federal litigation. 326 U.S., at 109, 65 S.Ct. at 1469. Not only are nonsubstantial, or trivial, variations not likely to raise the sort of equal protection problems which troubled the Court in Erie; they are also unlikely to influence the choice of a forum. The 'outcome-determination' test therefore cannot be read without reference to the twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.9
23
The difference between the conclusion that the Massachusetts rule is applicable, and the conclusion that it is not, is of course at this point 'outcome-determinative' in the sense that if we hold the state rule to apply, respondent prevails, whereas if we hold that Rule 4(d)(1) governs, the litigation will continue. But in this sense every procedural variation is 'outcome-determinative.' For example, having brought suit in a federal court, a plaintiff cannot then insist on the right to file subsequent pleadings in accord with the time limits applicable in state courts, even though enforcement of the federal timetable will, if he continues to insist that he must meet only the state time limit, result in determination of the controversy against him. So it is here. Though choice of the federal or state rule will at this point have a market effect upon the outcome of the litigation, the difference between the two rules would be of scant, if any, relevance to the choice of a forum. Petitioner, in choosing her forum, was not presented with a situation where application of the state rule would wholly bar recovery;10 rather, adherence to the state rule would have resulted only in altering the way in which process was served.11 Moreover, it is difficult to argue that permitting service of defendant's wife to take the place of inhand service of defendant himself alters the mode of enforcement of state-created rights in a fashion sufficiently 'substantial' to raise the sort of equal protection problems to which the Erie opinion alluded.
24
There is, however, a more fundamental flaw in respondent's syllogism: the incorrect assumption that the rule of Erie R. Co. v. Tompkins constitutes the appropriate test of the validity and therefore the applicability of a Federal Rule of Civil Procedure. The Erie rule has never been invoked to void a Federal Rule. It is true that there have been cases where this Court has held applicable a state rule in the face of an argument that the situation was governed by one of the Federal Rules. But the holding of each such case was not that Erie commanded displacement of a Federal Rule by an inconsistent state rule, but rather that the scope of the Federal Rule was not as broad as the losing party urged, and therefore, there being no Federal Rule which covered the point in dispute, Erie commanded the enforcement of state law.
25
'Respondent contends in the first place that the charge was correct because of the fact that Rule 8(c) of the Rules of Civil Procedure makes contributory negligence an affirmative defense. We do not agree. Rule 8(c) covers only the manner of pleading. The question of the burden of establishing contributory negligence is a question of local law which federal courts in diversity of citizenship cases (Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188) must apply.' Palmer v. Hoffman, 318 U.S. 109, 117, 63 S.Ct. 477, 482, 87 L.Ed. 645.12
26
(Here, of course, the clash is unavoidable; Rule 4(d)(1) says implicitly, but with unmistakable clarity—that inhand service is not required in federal courts.) At the same time, in cases adjudicating the validity of Federal Rules, we have not applied the York rule or other refinements of Erie, but have to this day continued to decide questions concerning the scope of the Enabling Act and the constitutionality of specific Federal Rules in light of the distinction set forth in Sibbach. E.g., Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152.
27
Nor has the development of two separate lines of cases been inadvertent. The line between 'substance' and 'procedure' shifts as the legal context changes. 'Each implies different variables depending upon the particular problem for which it is used.' Guaranty Trust Co. of New York v. York, supra, 326 U.S. at 108, 65 S.Ct. at 1469; Cook, The Logical and Legal Bases of the Conflict of Laws, pp. 154—183 (1942). It is true that both the Enabling Act and the Erie rule say, roughly, that federal courts are to apply state 'substantive' law and federal 'procedural' law, but from that it need not follow that the tests are identical. For they were designed to control very different sorts of decisions. When a situation is covered by one of the Federal Rules, the question facing the court is a far cry from the typical, relatively unguided Erie Choice: the court has been instructed to apply the Federal Rule, and can refuse to do so only if the Advisory Committee, this Court, and Congress erred in their prima facie judgment that the Rule in question transgresses neither the terms of the Enabling Act nor constitutional restrictions.13
28
We are reminded by the Erie opinion14 that neither Congress nor the federal courts can, under the guise of formulating rules of decision for federal courts, fashion rules which are not supported by a grant of federal authority contained in Article I or some other section of the Constitution; in such areas state law must govern because there can be no other law. But the opinion in Erie, which involved no Federal Rule and dealt with a question which was 'substantive' in every traditional sense (whether the railroad owed a duty of care to Tompkins as a trespasser or a licensee), surely neither said nor implied that measures like Rule 4(d)(1) are unconstitutional. For the constitutional provision for a federal court system (augmented by the Necessary and Proper Clause) carries with it congressional power to make rules governing the practice and pleading in those courts, which in turn includes a power to regulate matters which, though falling with the uncertain area between substance and procedure, are rationally capable of classification as either. Cf. M'Culloch v. State of Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579. Neither York nor the cases following it ever suggested that the rule there laid down for coping with situations where no Federal Rule applies is coextensive with the limitation on Congress to which Erie had adverted. Although this Court has never before been confronted with a case where the applicable Federal Rule is in direct collision with the law of the relevant State,15 courts of appeals faced with such clashes have rightly discerned the implications of our decisions.
29
'One of the shaping purposes of the Federal Rules is to bring about uniformity in the federal courts by getting away from local rules. This is especially true of matters which relate to the administration of legal proceedings, an area in which federal courts have traditionally exerted strong inherent power, completely aside from the powers Congress expressly conferred in the Rules. The purpose of the Erie doctrine, even as extended in York and Ragan, was never to bottle up federal courts with 'outcome-determinative' and 'integral-relations' stoppers when there are 'affirmative countervailing (federal) considerations' and when there is a Congressional mandate (the Rules) supported by constitutional authority.' Lumbermen's Mutual Casualty Co. v. Wright, 322 F.2d 759, 764 (C.A.5th Cir. 1963).16
30
Erie and its offspring cast no doubt on the long-recognized power of Congress to prescribe housekeeping rules for federal courts even though some of those rules will inevitably differ from comparable state rules. Cf. Herron v. Southern Pacific Co., 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857. 'When, because the plaintiff happens to be a non-resident, such a right is enforceable in a federal as well as in a State court, the forms and mode of enforcing the right may at times, naturally enough, vary because the two judicial systems are not identic.' Guaranty Trust Co. of New York v. York, supra, 326 U.S. at 108, 65 S.Ct. at 1469; Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 555, 69 S.Ct. 1221, 1229. Thus, though a court, in measuring a Federal Rule against the standards contained in the Enabling Act and the Constitution, need not wholly blind itself to the degree to which the Rule makes the character and result of the federal litigation stray from the course it would follow in state courts, Sibbach v. Wilson & Co., supra, 312 U.S. at 13—14, 61 S.Ct. at 426—427, it cannot be forgotten that the Erie rule, and the guidelines suggested in York, were created to serve another purpose altogether. To hold that a Federal Rule of Civil Procedure must cease to function whenever it alters the mode of enforcing state-created rights would be to disembowel either the Constitution's grant of power over federal procedure or Congress' attempt to exercise that power in the Enabling Act.17 Rule 4(d)(1) is valid and controls the instant case.
31
Reversed.
32
Mr. Justice BLACK concurs in the result.
33
Mr. Justice HARLAN, concurring. It is unquestionably true that up to now Erie and the cases following it have not succeeded in articulating a workable doctrine governing choice of law in diversity actions. I respect the Court's effort to clarify the situation in today's opinion. However, in doing so I think it has misconceived the constitutional premises of Erie and has failed to deal adequately with those past decisions upon which the courts below relied.
34
Erie was something more than an opinion which worried about 'forum-shopping and avoidance of inequitable administration of the laws,' ante, p. 468, although to be sure these were important elements of the decision. I have always regarded that decision as one of the modern cornerstones of our federalism, expressing policies that profoundly touch the allocation of judicial power between the state and federal systems. Erie recognized that there should not be two conflicting systems of law controlling the primary activity of citizens, for such alternative governing authority must necessarily give rise to a debilitating uncertainty in the planning of everyday affairs.1 And it recognized that the scheme of our Constitution envisions an allocation of law-making functions between state and federal legislative processes which is undercut if the federal judiciary can make substantive law affecting state affairs beyond the bounds of congressional legislative powers in this regard. Thus, in diversity cases Erie commands that it be the state law governing primary private activity which prevails.
35
The shorthand formulations which have appeared in some past decisions are prone to carry untoward results that frequently arise from oversimplification. The Court is quite right in stating that the 'outcome-determinative' test of Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, if taken literally, proves too much, for any rule, no matter how clearly 'procedural,' can affect the outcome of litigation if it is not obeyed. In turning from the 'outcome' test of York back to the unadorned forum-shopping rationale of Erie, however, the Court falls prey to like oversimplification, for a simple forum-shopping rule also proves too much; litigants often choose a federal forum merely to obtain what they consider the advantages of the Federal Rules of Civil Procedure or to try their cases before a supposedly more favorable judge. To my mind the proper line of approach in determining whether to apply a state or a federal rule, whether 'substantive' or 'procedural,' is to stay close to basic principles by inquiring if the choice of rule would substantially affect those primary decisions respecting human conduct which our constitutional system leaves to state regulation.2 If so, Erie and the Constitution require that the state rule prevail, even in the face of a conflicting federal rule.
36
The Court weakens, if indeed it does not submerge, this basic principle by finding, in effect, a grant of substantive legislative power in the constitutional provision for a federal court system (compare Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865), and through it, setting up the Federal Rules as a body of law inviolate.
37
'(T)he constitutional provision for a federal court system * * * carries with it congressional power * * * to regulate matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either.' Ante, p. 472. (Emphasis supplied.)
38
So long as a reasonable man could characterize any duly adopted federal rule as 'procedural,' the Court, unless I misapprehend what is said, would have it apply no matter how seriously it frustrated a State's substantive regulation of the primary conduct and affairs of its citizens. Since the members of the Advisory Committee, the Judicial Conference, and this Court who formulated the Federal Rules are presumably reasonable men, it follows that the integrity of the Federal Rules is absolute. Whereas the unadulterated outcome and forum-shopping tests may err too far toward honoring state rules, I submit that the Court's 'arguably procedural, ergo constitutional' test moves too fast and far in the other direction.
39
The courts below relied upon this Court's decisions in Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520, and Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528. Those cases deserve more attention than this Court has given them, particularly Ragan which, if still good law, would in my opinion call for affirmance of the result reached by the Court of Appeals. Further, a discussion of these two cases will serve to illuminate the 'diversity' thesis I am advocating.
40
In Ragan a Kansas statute of limitations provided that an action was deemed commenced when service was made on the defendant. Despite Federal Rule 3 which provides that an action commences with the filing of the complaint, the Court held that for purposes of the Kansas statute of limitations a diversity tort action commenced only when service was made upon the defendant. The effect of this holding was that although the plaintiff had filed his federal complaint within the state period of limitations, his action was barred because the federal marshal did not serve a summons on the defendant until after the limitations period had run. I think that the decision was wrong. At most, application of the Federal Rule would have meant that potential Kansas tort defendants would have to defer for a few days the satisfaction of knowing that they had not been sued within the limitations period. The choice of the Federal Rule would have had no effect on the primary stages of private activity from which torts arise, and only the most minimal effect on behavior following the commission of the tort. In such circumstances the interest of the federal system in proceeding under its own rules should have prevailed.
41
Cohen v. Beneficial Indus. Loan Corp. held that a federal diversity court must apply a state statute requiring a small stockholder in a stockholder derivative suit to post a bond securing payment of defense costs as a condition to prosecuting an action. Such a statute is not 'outcome determinative'; the plaintiff can win with or without it. The Court now rationalizes the case on the ground that the statute might affect the plaintiff's choice of forum (ante, p. 469, n. 10), but as has been pointed out, a simple forum-shopping test proves too much. The proper view of Cohen is in my opinion, that the statute was meant to inhibit small stockholders from instituting 'strike suits,' and thus it was designed and could be expected to have a substantial impact on private primary activity. Anyone who was at the trial bar during the period when Cohen arose can appreciate the strong state policy reflected in the statute. I think it wholly legitimate to view Federal Rule 23 as not purporting to deal with the problem. But even had the Federal Rules purported to do so, and in so doing provided a substantially less effective deterrent to strike suits, I think the state rule should still have prevailed. That is where I believe the Court's view differs from mine; for the Court attributes such overriding force to the Federal Rules that it is hard to think of a case where a conflicting state rule would be allowed to operate, even though the state rule reflected policy considerations which, under Erie, would lie within the realm of state legislative authority.
42
It remains to apply what has been said to the present case. The Massachusetts rule provides that an executor need not answer suits unless in-hand service was made upon him or notice of the action was filed in the proper registry of probate within one year of his giving bond. The evident intent of this statute is to permit an executor to distribute the estate which he is administering without fear that further liabilities may be outstanding for which he could be held personally liable. If the Federal District Court in Massachusetts applies Rule 4(d)(1) of the Federal Rules of Civil Procedure instead of the Massachusetts service rule, what effect would that have on the speed and assurance with which estates are distributed? As I see it, the effect would not be substantial. It would mean simply that an executor would have to check at his own house or the federal courthouse as well as the registry of probate before he could distribute the estate with impunity. As this does not seem enough to give rise to any real impingement on the vitality of the state policy which the Massachusetts rule is intended to serve, I concur in the judgment of the Court.
1
Section 9 is in part a statute of limitations, providing that an executor need not 'answer to an action * * * which is not commenced within one year from the time of his giving bond * * *.' This part of the statute, the purpose of which is to speed the settlement of estates, Spaulding v. McConnell, 307 Mass. 144, 146, 29 N.E.2d 713, 715 (1940); Doyle v. Moylan, 141 F.Supp. 95 (D.C.D.Mass.1956), is not involved in this case, since the action clearly was timely commenced. (Respondent filed bond on March 1, 1962; the complaint was filed February 6, 1963; and the service the propriety of which is in dispute—was made on February 8, 1963.) 331 F.2d, at 159. Cf. Guaranty Trust Co. of New York v. York, supra; Ragan v. Merchants Transfer & Warehouse Co., supra.
Section 9 also provides for the manner of service. Generally, service of process must be made by 'delivery in hand,' although there are two alternatives: acceptance of service by the executor, or filing of a notice of claim, the components of which are set out in the statute, in the appropriate probate court. The purpose of this part of the statute, which is involved here, is, as the court below noted, to insure that executors will receive actual notice of claims. Parker v. Rich, 297 Mass. 111, 113—114, 8 N.E.2d 345, 347 (1937). Actual notice is of course also the goal of Rule 4(d)(1); however, the Federal Rule reflects a determination that this goal can be achieved by a method less cumbersome than that prescribed in § 9. In this case the goal seems to have been achieved; although the affidavit filed by respondent in the District Court asserts that he had not been served in hand nor had he accepted service, It does not allege lack of actual notice.
2
There are a number of state service requirements which would not necessarily be satisfied by compliance with Rule 4(d)(1). See, e.g., Cal.Civ.Proc.Code § 411, subd. 8; Idaho Code Ann. § 5—507, subd. 7 (1948); Ill.Rev.Stat., c. 110, § 13.2 (1963); Ky.Rev.Stat., Rules Civ.Proc., Rule 4.04 (1962); Md.Ann.Code, Rules Proc., Rule 104 b (1963); Mich.Rev.Jud.Act § 600.1912 (1961); N.C.Gen.Stat. § 1—94 (1953); S.D.Code § 33.0807(8) (Supp.1960); Tenn.Code Ann. § 20—214 (1955).
3
'These rules govern the procedure in the United States district courts in all suits of a civil nature whether cognizable as cases at law or in equity with the exceptions stated in Rule 81. * * *' Fed.Rules Civ.Proc. 1.
This case does not come within any of the exceptions noted in Rule 81.
4
See also Schlagenhauf v. Holder, 379 U.S. 104, 112—114, 85 S.Ct. 234, 239—241, 13 L.Ed.2d 152.
5
See also Ragan v. Merchants Transfer & Warehouse Co., supra; Woods v. Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524; Bernhardt v. Polygraphic Co., 350 U.S. 198, 203—204, 207—208, 76 S.Ct. 273, 276—277, 278—279, 100 L.Ed. 199; cf. Byrd v. Blue Ridge Rural Elec. Cooperative, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953.
6
See Iovino v. Waterson, 274 F.2d 41, 46—47 (C.A.2d Cir.1959), cert. denied sub nom. Carlin v. Iovino, 362 U.S. 949, 80 S.Ct. 860, 4 L.Ed.2d 867.
7
See also Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477; Woods v. Interstate Realty Co., supra, note 5, 337 U.S. at 538, 69 S.Ct. at 1237.
8
Cf. Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 48 S.Ct. 404, 72 L.Ed. 681.
9
The Court of Appeals seemed to frame the inquiry in terms of how 'important' § 9 is to the State. In support of its suggestion that § 9 serves some interest the State regards as vital to its citizens, the court noted that something like § 9 has been on the books in Massachusetts a long time, that § 9 has been amended a number of times and that § 9 is designed to make sure that executors receive actual notice. See note 1, supra. The apparent lack of relation among these three observations is not surprising, because it is not clear to what sort of question the Court of Appeals was addressing itself. One cannot meaningfully ask how important something is without first asking 'important for what purpose?' Erie and its progeny make clear that when a federal court sitting in a diversity case is faced with a question of whether or not to apply state law, the importance of a state rule is indeed relevant, but only in the context of asking whether application of the rule would make so important a difference to the character or result of the litigation that failure to enforce it would unfairly discriminate against citizens of the forum State, or whether application of the rule would have so important an effect upon the fortunes of one or both of the litigants that failure to enforce it would be likely to cause a plaintiff to choose the federal court.
10
See Guaranty Trust Co. of New York v. York, supra, 326 U.S. at 108—109, 65 S.Ct. at 1469; Ragan v. Merchants Transfer & Warehouse Co., supra, 337 U.S. at 532, 69 S.Ct. at 1234; Woods v. Interstate Realty Co., supra, note 5, 337 U.S. at 538, 69 S.Ct. at 1237.
Similarly, a federal court's refusal to enforce the New Jersey rule involved in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, requiring the posting of security by plaintiffs in stockholders' derivative actions, might well impel a stockholder to choose to bring suit in the federal, rather than the state, court.
11
Cf. Monarch Insurance Co. of Ohio v. Spach, 281 F.2d 401, 412 (C.A.5th Cir. 1960). We cannot seriously entertain the thought that one suing an estate would be led to choose the federal court because of a belief that adherence to Rule 4(d)(1) is less likely to give the executor actual notice than § 9, and therefore more likely to produce a default judgment. Rule 4(d)(1) is well designed to give actual notice, as it did in this case. See note 1, supra.
12
To the same effect, see Ragan v. Merchants Transfer & Warehouse Co., supra; Cohen v. Beneficial Indus. Loan Corp., supra, note 10, 337 U.S. at 556, 69 S.Ct. at 1230; id., at 557, 69 S.Ct. at 1230 (DOUGLAS, J., dissenting); cf. Bernhardt v. Polygraphic Co., supra, note 5, 350 U.S. at 201—202, 76 S.Ct. at 275; see generally Iovino v. Waterson, supra, note 6, 274 F.2d at 47—48.
13
Sibbach v. Wilson & Co., supra, 312 U.S. at 13—15, 61 S.Ct. at 426—427; see Appointment of Committee to Draft Unified System of Equity and Law Rules, 295 U.S. 774; Orders re Rules of Procedure, 302 U.S. 783; Letter of Submittal, 308 U.S. 649; 1A Moore, Federal Practice 0.501(2), at 5027—5028 (2d ed. 1961).
14
Erie R. Co. v. Tompkins, supra, 304 U.S. at 77-79, 58 S.Ct. at 822—823; cf. Bernhardt v. Polygraphic Co., supra, note 5, 350 U.S. at 202, 76 S.Ct. at 275; Sibbach v. Wilson & Co., supra, 312 U.S. at 10, 61 S.Ct. at 424; Guaranty Trust Co. of New York v. York, supra, 326 U.S. at 105, 65 S.Ct. at 1467.
15
In Sibbach v. Wilson & Co., supra, the law of the forum State (Illinois) forbade the sort of order authorized by Rule 35. However, Sibbach was decided before Klaxon Co. v. Stentor Electric Mfg. Co., supra, note 7, and the Sibbach opinion makes clear that the Court was proceeding on the assumption that if the law of any State was relevant, it was the law of the State where the tort occurred (Indiana), which, like Rule 35, made provision for such orders. 312 U.S., at 6—7, 10—11, 61 S.Ct. at 423. 424—425.
16
To the same effect, see D'Onofrio Construction Co. v. Recon Co., 255 F.2d 904, 909—910 (C.A.1st Cir. 1958).
17
Mississippi Pub. Corp. v. Murphree, supra, 326 U.S. at 445—446, 66 S.Ct. at 246; Iovino v. Waterson, supra, note 6, 274 F.2d at 46.
1
Since the rules involved in the present case are parallel rather than conflicting, this first rationale does not come into play here.
2
See Hart and Wechsler, The Federal Court and the Federal System 678. Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 536—540, 78 S.Ct. 893, 900-902, 2 L.Ed.2d 953, indicated that state procedures would apply if the State had manifested a particularly strong interest in their employment. Compare Dice v. Akron, C. & Y.R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398. However, this approach may not be of constitutional proportions.
| 89
|
380 U.S. 479
85 S.Ct. 1116
14 L.Ed.2d 22
James A. DOMBROWSKI et al., Appellants,v.James H. PFISTER, etc., et al.
No. 52.
Argued Jan. 25, 1965.
Decided April 26, 1965.
[Syllabus from pages 480-481 intentionally omitted]
Leon Hubert Jr., New Orleans, La., and Arthur Kinoy, New York City, for appellants.
John E. Jackson, Jr., New Orleans, La., and Jack N. Rogers, Baton Rouge, La., for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Appellants filed a complaint in the District Court for the Eastern District of Louisiana, invoking the Civil Rights Act, Rev.Stat. § 1979, 42 U.S.C. § 1983 (1958 ed.) and seeking declaratory relief and an injunction restraining appellees the Governor, police and law enforcement officers, and the Chairman of the Legislative Joint Committee on Un-American Activities in Louisiana—from prosecuting or threatening to prosecute appellants for alleged violations of the Louisiana Subversive Activities and Communist Control Law and the Communist Propaganda Control Law.1 Appellant Southern Conference Educational Fund, Inc. (SCEF), is active in fostering civil rights for Negroes in Louisiana and other States of the South. Appellant Dombrowski is its Executive Director; intervenor Smith, its Treasurer; and intervenor Waltzer, Smith's law partner and an attorney for SCEF. The complaint alleges that the statutes on their face violate the First and Fourteenth Amendment guarantees securing freedom of expression, because over-breadth makes them susceptible of sweeping and improper application abridging those rights. Supported by affidavits and a written offer of proof, the complaint further alleges that the threats to enforce the statutes against appellants are not made with any expectation of securing valid convictions, but rather are part of a plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass appellants and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana.
2
A three-judge district court, convened pursuant to 28 U.S.C. § 2281 (1958 ed.) dismissed the complaint, one judge dissenting, 'for failure to state a claim upon which relief can be granted.' 227 F.Supp. 556, 564. The majority were of the view that the allegations, conceded to raise serious constitutional issues, did not present a case of threatened irreparable injury to federal rights which warranted cutting short the normal adjudication of constitutional defenses in the course of state criminal prosecutions; rather, the majority held, this was an appropriate case for abstention, since a possible narrowing construction by the state courts would avod unnecessary decision of constitutional questions. In accordance with this view the court withdrew its initial determination that the statutes were not unconstitutional on their face. 227 F.Supp., at 562—563. Postponement of consideration of the federal issues until state prosecution and possible review here of adverse state determination was thought to be especially appropriate since the statutes concerned the State's 'basic right of self-preservation' and the threatened prosecution was 'imbued * * * with an aura of sedition or treason or acts designed to substitute a different form of local government by other than lawful means * * *'; federal court interference with enforcement of such statutes 'truly * * * would be a massive emasculation of the last vestige of the dignity of sovereignty.' 227 F.Supp., at 559, 560. We noted probable jurisdiction in order to resolve a seeming conflict with our later decision in Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377, and to settle important questions concerning federal injunctions against state criminal prosecutions threatening constitutionally protected expression. 377 U.S. 976, 84 S.Ct. 1881, 12 L.Ed.2d 745. We reverse.
I.
3
In Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, the fountainhead of federal injunctions against state prosecutions, the Court characterized the power and its proper exercise in broad terms: it would be justified where state officers '* * * threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution * * *.' 209 U.S., at 156, 28 S.Ct., at 452. Since that decision, however, considerations of federalism have tempered the exercise of equitable power,2 for the Court has recognized that federal interference with a State's good-faith administration of its criminal laws is peculiarly inconsistent with our federal framework. It is generally to be assumed that state courts and prosecutors will observe constitutional limitations as expounded by this Court, and that the mere possibility of erroneous initial application of constitutional standards will usually not amount to the irreparable injury necessary to justify a disruption of orderly state proceedings. In Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324, for example, the Court upheld a district court's refusal to enjoin application of a city ordinance to religious solicitation, even though the ordinance was that very day held unconstitutional as so applied on review of a criminal conviction under it. Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292. Since injunctive relief looks to the future, and it was not alleged that Pennsylvania courts and prosecutors would fail to respect the Murdock ruling, the Court found nothing to justify an injunction. And in a variety of other contexts the Court has found no special circumstances to warrant cutting short the normal adjudication of constitutional defenses in the course of a criminal prosecution.3 In such cases it does not appear that the plaintiffs 'have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith, or that a federal court of equity by withdrawing the determination of guilt from the state courts could rightly afford petitioners any protection which they could not secure by prompt trial and appeal pursued to this Court.' Douglas v. City of Jeannette, supra, 319 U.S., at 164, 63 S.Ct., at 881.
4
But the allegations in this complaint depict a situation in which defense of the State's criminal prosecution will not assure adequate vindication of constitutional rights. They suggest that a substantial loss or impairment of freedoms of expression will occur if appellants must await the state court's disposition and ultimate review in this Court of any adverse determination. These allegations, if true, clearly show irreparable injury.
5
A criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms. See, e.g., Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205. When the statutes also have an overbroad sweep, as is here alleged, the hazard of loss or substantial impairment of those precious rights may be critical. For in such cases, the statutes lend themselves too readily to denial of those rights. The assumption that defense of a criminal prosecution will generally assure ample vindication of constitutional rights is unfounded in such cases. See Baggett v. Bullitt, supra, 377 U.S., at 379, 84 S.Ct., at 1326. For '(t)he threat of sanctions may deter * * * almost as potently as the actual application of sanctions. * * *' NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405. Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression—of transcendent value to all society, and not merely to those exercising their rights—might be the loser. Cf. Garrison v. State of Louisiana, 379 U.S. 64, 74 75, 85 S.Ct. 209, 215, 216, 13 L.Ed.2d 125. For example, we have consistently allowed attackes on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. Thornhill v. State of Alabama, 310 U.S. 88, 97—98, 60 S.Ct. 736, 741—742, 84 L.Ed. 1093; NAACP v. Button, supra, 371 U.S., at 432—433, 83 S.Ct., at 337—338; cf. Aptheker v. Secretary of State, 378 U.S. 500, 515—517, 84 S.Ct. 1659, 1668—1669, 12 L.Ed.2d 992; United States v. Raines, 362 U.S. 17, 21—22, 80 S.Ct. 519, 522—523, 4 L.Ed.2d 524. We have fashioned this exception to the usual rules governing standing, see United States v. Raines, supra, because of the '* * * danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.' NAACP v. Button, supra, 371 U.S., at 433, 83 S.Ct., at 338. If the rule were otherwise, the contours of regulation woudl have to be hammered out case by case—and tested only by those hardy enough to risk criminal prosecution to determine the properscope of regulation. Cf. Ex parte Young, supra, 209 U.s., at 147—148, 28 S.Ct., at 448—449. By permitting determination of the invalidity of these statutes without regard to the permissibility of some regulation on the facts of particular cases, we have, in effect, avoided making vindication of freedom of expression await the outcome of protracted litigation. Moreover, we have not thought that the improbability of successful prosecution makes the case different. The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure. See NAACP v. Button, supra, 371 U.S., at 432 433, 83 S.Ct., at 337—338; cf. Baggett v. Bullitt, supra, 377 U.S., at 378—379, 84 S.Ct., at 1326; Bush v. Orleans School Board, D.C., 194 F.Supp. 182, 185, affirmed sub nom. Tugwell v. Bush, 367 U.S. 907, 81 S.Ct. 1926, 6 L.Ed.2d 1250; Gremillion v. United States, 368 U.S. 11, 82 S.Ct. 119, 7 L.Ed.2d 75.
6
Appellants' allegations and offers of proof outline the chilling effect on free expression of prosecutions initiated and threatened in this case. Early in October 1963 appellant Dombrowski and intervenors Smith and Waltzer were arrested by Louisiana state and local police and charged with violations of the two statutes. Their offices were raided and their files and records seized.4 Later in October a state judge quashed the arrest warrants as not based on probable cause, and discharged the appellants. Subsequently, the court granted a motion to suppress the seized evidence on the ground that the raid was illegal. Louisiana officials continued, however, to threaten prosecution of the appellants, who thereupon filed this action in November. Shortly after the three-judge court was convened, a grand jury was summoned in the Parish of Orleans to hear evidence looking to indictments of the individual appellants. On appellants' application Judge Wisdom issued a temporary restraining order against prosecutions pending hearing and decision of the case in the District Court. Following a hearing the District Court, over Judge Wisdom's dissent, dissolved the temporary restraining order and, at the same time, handed down an order dismissing the complaint. Thereafter the grand jury returned indictments under the Subversive Activities and Communist Control Law against the individual appellants.5
7
These events, together with repeated announcements by appellees that the appellant organization is a subversive or Communist-front organization, whose members must register or be prosecuted under the Louisiana statutes, have appellants allege, frightened off potential members and contributors. Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817. Seizures of documents and records have paralyzed operations and threatened exposure of the identity of adherents to a locally unpopular cause. See NAACP v. State of Alabama, ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488. Although the particular seizure has been quashed in the state courts, the continuing threat of presecution portends further arrests and seizures, some of which may be upheld and all of which will cause the organization inconvenience or worse. In Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, we struck down a motion picture censorship statute solely because the regulatory scheme did not sufficiently assure exhibitors a prompt judicial resolution of First Amendment claims. The interest in immediate resolution of such claims is surely no less where criminal prosecutions are threatened under statutes allegedly overbroad and seriously inhibiting the exercise of protected freedoms. Not only does the complaint allege far more than an 'injury other than that incidental to every criminal proceeding brought lawfully and in good faith,' but appellants allege threats to enforce statutory provisions other than those under which indictments have been brought. Since there is no immediate prospect of a final state adjudication as to those other sections if, indeed, there is any certainty that prosecution of the pending indictments will resolve all constitutional issues presented—a series of state criminal prosecutions will not provide satisfactory resolution of constitutional issues.
8
It follows that the District Court erred in holding that the complaint fails to allege sufficient irreparable injury to justify equitable relief.
9
The District Court also erred in holding that it should abstain pending authoritative interpretation of the statutes in the state courts, which might hold that they did not apply to SCEF, or that they were unconstitutional as applied to SCEF. We hold the abstention doctrine is inappropriate for cases such as the present one where, unlike Douglas v. City of Jeannette, statutes are justifiably attacked on their face as abridging free expression, or as applied for the purpose of discouraging protected activities.
10
First, appellants have attacked the good faith of the appellees in enforcing the statutes, claiming that they have invoked, and threaten to continue to invoke, criminal process without any hope of ultimate success, but only to discourage appellants' civil rights activities. If these allegations state a claim under the Civil Rights Act, 42 U.S.C. § 1983, as we believe they do, see Beauregard v. Wingard, 230 F.Supp. 167 (D.C.S.D.Calif.1964); Bargainer v. Michal, 233 F.Supp. 270 (D.C.N.D.Ohio 1964), the interpretation ultimately put on the statutes by the state courts is irrelevant. For an interpretation rendering the statute inapplicable to SCEF would merely mean that appellants might ultimately prevail in the state courts. It would not alter the impropriety of appellees' invoking the statute in bad faith to impose continuing harassment in order to discourage appellants' activities, as appellees allegedly are doing and plan to continue to do.
11
Second, appellants have challenged the statutes as overly broad and vague regulations of expression. We have already seen that where, as here, prosecutions are actually threatened, this challenge, if not clearly frivolous, will establish the threat of irreparable injury required by traditional doctrines of equity. We believe that in this case the same reasons preclude denial of equitable relief pending an acceptable narrowing construction. In considering whether injunctive relief should be granted, a federal district court should consider a statute as of the time its jurisdiction is invoked, rather than some hypothetical future date. The area of proscribed conduct will be adequately defined and the deterrent effect of the statute contained within constitutional limits only by authoritative constructions sufficiently illuminating the contours of an otherwise vague prohibition. As we observed in Baggett v. Bullitt, supra, 377 U.S., at 378, 84 S.Ct., at 1326, this cannot be satisfactorily done through a series of criminal prosecutions, dealing as they inevitably must with only a narrow portion of the prohibition at any one time, and not contributing materially to articulation of the statutory standard. We believe that those affected by a statute are entitled to be free of the burdens of defending prosecutions, however expeditious, aimed at hammering out the structure of the statute piecemea, with no likelihood of obviating similar uncertainty for others. Here, no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, and appellants are entitled to an injunction. The State must, if it is to invoke the statutes after injunctive relief has been sought, assume the burden of obtaining a permissible narrow construction in a noncriminal proceeding6 before it may seek modification of the injunction to permit future prosecutions.7
12
On this view of the 'vagueness' doctrine, it is readily apparent that abstention serves no legitimate purpose where a statute regulating speech is properly attacked on its face, and where, as here, the conduct charged in the indictments is not within the reach of an acceptable limiting construction readily to be anticipated as the result of a single criminal prosecution and is not the sort of 'hardcore' conduct that would obviously be prohibited under any construction. In these circumstances, to abstain is to subject those affected to the uncertainties and vagaries of criminal prosecution, whereas the reasons for the vagueness doctrine in the area of expression demand no less than freedom from prosecution prior to a construction adequate to save the statute. In such cases, abstention is at war with the purposes of the vagueness doctrine, which demands appropriate federal relief regardless of the prospects for expeditious determination of state criminal prosecutions. Although we hold today that appellants' allegations of threats to prosecute, if upheld, dictate appropriate equitable relief without awaiting declaratory judgments in the state courts, the settled rule of our cases is that district courts retain power to modify injunctions in light of changed circumstances. System Federation No. 91, Ry. Emp. Dept., AFL—CIO v. Wright, 364 U.S. 642, 81 S.Ct. 368, 5 L.Ed.2d 349; Chrysler Corp. v. United States, 316 U.S. 556, 62 S.Ct. 1146, 86 L.Ed. 1668; United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999. Our view of the proper operation of the vagueness doctrine does not preclude district courts from modifying injunctions to permit prosecutions in light of subsequent state court interpretation clarifying the application of a state to particular conduct.
13
We conclude that on the allegations of the complaint, if true, abstention and the denial of injunctive relief may well result in the denial of any effective safeguards against the loss of protected freedoms of expression, and cannot be justified.
II.
14
Each of the individual appellants was indicated for violating § 364(7)8 of the Subversive Activities and Communist Control Law by failing to register as a member of a Communist-front organization. Smith and Waltzer were indicted for failing to register as members 'of a Communist front organization known as the National Lawyers Guild, which said organization has been cited by committees and sub-committees of the United States Congress as a Communist front organization * * *.' Dombrowski and Smith were indicted for failing to register as members of 'a Communist front organization known as the Southern Conference Educational Fund, which said organization is essentially the same as the Southern Conference for Human Welfare, which said Southern Conference for Human Welfare (has) * * * been cited by the committees of the United States Congress as a Communist front organization * * *.' Dombrowski and Smith were also indicted for violating § 364(4),9 by acting as Executive Director and Treasurer respectively 'of a subversive organization, to wit, the Southern Conference Educational Fund, said organization being essentially the same as the Southern Conference for Human Welfare, which said organization has been cited by committees of the United States Congress as a Communist front organization * * *.'
15
The statutory definition of 'a subversive organization' in § 359(5)10 incorporated in the offense created s 364(4), is substantially identical to that of the Washington statute which we considered in Baggett v. Bullitt, supra, 377 U.S., at 362, 363, n. 1, 84 S.Ct., at 1318. There the definition was used in a state statute requiring state employees to take an oath as a condition of employment. We held that the definition, as well as the oath based thereon, denied due process because it was unduly vague, uncertain and broad. Where, as here, protected freedoms of expression and association are similarly involved, we see no controlling distinction in the fact that the definition is used to provide a standard of criminality rather than the contents of a test oath. This overly broad statute also creates a 'danger zone' within which protected expression may be inhibited. Cf. Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. So long as the statute remains available to the State the threat of prosecutions of protected expression is a real and substantial one. Even the prospect of ultimate failure of such prosecutions by no means dispels their chilling effect on protected expression. A Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809; Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584; Marcus v. Search Warrants of Property, etc., 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127; Speiser v. Randall, supra. Since § 364(4) is so intimately bound up with a definition invalid under the reasoning of Baggett v. Bullitt, we hold that it is invalid for the same reasons.
16
We also find the registration requirement of § 364(7) invalid. That section creates an offense of failure to register as a member of a Communist-front organization, and, under § 359(3),11 'the fact that an organization has been officially cited or identified by the Attorney General of the United States, the Subversive Activities Control Board of the United States or any Committee or Subcommittee of the United States Congress as a * * * communist front organization * * * shall be considered presumptive evidence of the factual status of any such organization.' There is no requirement that the organization be so cited only after compliance with the procedural safeguards demanded by Joint Anti-Fascist Refugee Committee v. McGrath, supra.12
17
A designation resting on such safeguards is a minimum requirement to insure the rationality of the presumptions of the Louisiana statute and, in its absence, the presumptions cast an impermissible burden upon the appellants to show that the organizations are not Communist fronts. 'Where the transcendent value of speech is involved, due process certainly requires * * * that the State bear the burden of persuasion to show that the appellants engaged in criminal speech.' Speiser v. Randall, supra, 357 U.S., at 526, 78 S.Ct., at 1342. It follows that § 364(7), resting on the invalid presumption, is unconstitutional on its face.13
III.
18
The precise terms and scope of the injunctive relief to which appellants are entitled and the identity of the appellees to be enjoined cannot, of course, be determined until after the District Court conducts the hearing on remand. The record suffices, however, to permit this Court to hold that, without the benefit of limiting construction, the statutory provisions on which the indictments are founded are void on their face; until an acceptable limiting construction is obtained, the provisions cannot be applied to the activities of SCEF, whatever they may be. The brief filed in this Court by appellee Garrison, District Attorney of the Parish of Orleans, the official having immediate responsibility for the indictments, concedes the facts concerning the arrests of the individual appellants, their discharge by the local judge, and the indictments of the individual appellants by the grand jury. In view of our decision on the merits, the District Court on remand need decide only the relief to which appellants may be entitled on the basis of their attacks on other sections of that statute and the Communist Propaganda Control Law, and on their allegations that appellees threaten to enforce both statutes solely to discourage appellants from continuing their civil rights activities. On these issues, abstention will be as inappropriate as on the issues we here decide.
19
The judgment of the District Court is reversed and the cause is remanded for further proceedings consistent with this opinion. These shall include prompt framing of a decree restraining prosecution of the pending indictments against the individual appellants, ordering immediate return of all papers and documents seized, and prohibiting further acts enforcing the sections of the Subversive Activities and Communist Control Law here found void on their face. In addition, appellants are entitled to expeditious determination, without abstention, of the remaining issues raised in the complaint. It is so ordered.
20
Judgment of District Court reversed and cause remanded with directions.
21
Mr. Justice BLACK took no part in the consideration or decision of this case.
22
Mr. Justice STEWART took no part in the decision of this case.
23
Mr. Justice HARLAN, whom Mr. Justice CLARK, joins, dissenting.
24
The basic holding in this case marks a significant departure from a wise procedural principle designed to spare our federal system from premature federal judicial interference with state statutes or proceedings challenged on federal constitutional grounds. This decision abolishes the doctrine of federal judicial abstention in all suits attacking state criminal statutes for vagueness on First-Fourteenth Amendment grounds. As one who considers that it is a prime responsibility of this Court to maintain federal-state court relationships in good working order, I cannot subscribe to a holding which displays such insensitivity to the legitimate demands of those relationships under our federal system. I see no such incompatibility between the abstention doctrine and the full vindication of constitutionally protected rights as the Court finds to exist in cases of this kind.
25
In practical effect the Court's decision means that a State may no longer carry on prosecutions under statutes challengeable for vagueness on 'First Amendment' grounds without the prior approval of the federal courts. For if such a statute can be so questioned (and few, at least colorably, cannot) then a state prosecution, if instituted after the commencement of a federal action,1 must be halted until the prosecuting authorities obtain in some other state proceeding a narrowing construction, which in turn would presumably be subject to further monitoring by the federal courts before the state prosecution would be allowed to proceed.
26
For me such a paralyzing of state criminal processes cannot be justified by any of the considerations which the Court's opinion advances in its support. High as the premium placed on First Amendment rights may be, I do not think that the Federal Constitution prevents a State from testing their availability through the medium of criminal proceedings, subject of course to this Court's ultimate review.
27
Underlying the Court's major premise that criminal enforcement of an overly broad statute affecting rights of speech and association is in itself a deterrent to the free exercise thereof seems to be the unarticulated assumption that state courts will not be as prone as federal courts to vindicate constitutional rights promptly and effectively. Such an assumption should not be indulged in the absence of a showing that such is apt to be so in a given case. No showing of that kind has been made. On the contrary, the Louisiana courts in this very case have already refused to uphold the seizure of appellants' books. Ante, pp. 487 488. We should not assume that those courts would not be equally diligent in construing the statutes here in question in accordance with the relevant decisions of this Court.2
28
The Court suggests that 'a substantial loss or impairment of freedoms of expression will occur if appellants must await the state court's disposition and ultimate review in this Court of any adverse determination.' Ante, p. 486. But the possibility of such an impairment is not obviated by traveling the federal route approved here. Even in the federal courts the progress of litigation is not always as swift as one would like to see it. It is true, of course, that appellants would have to show in the state case that the conduct charged falls outside the scope of a criminal statute construed within constitutional limits, whereas in this case they need not allege the particular conduct which they deem to be protected. But the argument that these state prosecutions do not afford an appropriate vehicle for testing appellants' claims respecting freedom of speech and association hardly sits well with the Smith Act cases in which First Amendment claims were at the very core of the federal prosecutions. See Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356; Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782.
29
Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377, in which the Court last Term struck down a Washington state statute virtually identical to this one, should not be dispositive of this case. Baggett was decided in the context of what amounted to an academic loyalty oath, applicable to college professors with respect to some of whom (those not having tenure) there was at least grave doubt whether a state remedy was available to review the constitutionality of their dismissal by reason of refusal to take the required oath. I would not extend the doctrine of that case to thwart the normal processes of state criminal law enforcement.3
30
Had this statute been a federal enactment and had this Court been willing to pass upon its validity in a declaratory judgment or injunction action, I can hardly believe that it would have stricken the statute without first exposing it to the process of narrowing construction in an effort to save as much of it as possible. See, e.g., Dennis v. United States, supra, 341 U.S., at 502, 71 S.Ct., at 863, 95 L.Ed. 1137. Yet here the Court has not only made no effort to give this state statute a narrowing construction, but has also declined to give the Louisiana courts an opportunity to do so with respect to the acts charged in the pending prosecutions against these appellants. See Fox v. State of Washington, 236 U.S. 273, 35 S.Ct. 383, 59 L.Ed. 573; Poulos v. State of New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105. The statute thus pro tanto goes to its doom without either state or federal court interpretation, and despite the room which the statute clearly leaves for a narrowing constitutional construction. See Dennis, Yates, and Scales, supra This seems to me to be heavy-handed treatment of the first order.
31
What the Court decides suffers from a further infirmity. Interwoven with the vagueness doctrine is a question of standing. In a criminal prosecution a defendant could not avoid a constitutional application of this statute to his own conduct simply by showing that if applied to others whose conduct was protected it would be unconstitutional.4 To follow that practice in a federal court which is asked to enjoin a state criminal prosecution would, however, in effect require that the parties try the criminal case in advance in the federal forum, see Cleary v. Bolger, 371 U.S. 392, 83 S.Ct. 385, 9 L.Ed.2d 390; Stefanelli v. Minard, 342 U.S. 117, 123—124, 72 S.Ct. 118, 121—122, 96 L.Ed. 138, a procedure certainly seriously disruptive of the orderly processes of the state proceedings. The Court seems to recognize that persons whose conduct would be included under even the narrowest reading of the statutes—what might be called 'hard-core' conduct—could have been constitutionally prosecuted under the statutes invalidated today, without being able to assert a vagueness defense. Ante, n. 7, p. 491-492. Thus, if persons were conspiring to stage a forcibe coup d'etat in a State, they could hardly claim in a criminal trial that a statute such as this was vague as applied to them. For all we know, appellants' conduct in fact would fall within even the narrowest reading of the Louisiana Subversive Activities and Communist Control Law, but since appellants were able to reach a federal court before the State instituted criminal proceedings against them, they are now immunized with a federal vaccination from state prosecution. To make standing and criminality turn on which party wins the race to the forum of its own choice is to repudiate the 'considerations of federalism' (ante, p. 484) to which the Court pays lip service.
32
While I consider that abstention was called for, I think the District Court erred in dismissing the action. It should have retained jurisdiction for the purpose of affording appellants appropriate relief in the event that the state prosecution did not go forward in a prompt and bona fide manner. See Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152.
1
The Subversive Activities and Communist Control Law is La.Rev.Stat. §§ 14:358 through 14:374 (Cum.Supp.1962). The Communist Propaganda Control Law is La.Rev.Stat. §§ 14:390 through 14:390.8 (Cum.Supp.1962).
2
28 U.S.C. § 2283 (1958 ed.) provides that:
'A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.'
The District Court did not suggest that this statute denied power to issue the injunctions sought. This statute and its predecessors do not preclude injunctions against the institution of state court proceedings, but only bar stays of suits already instituted. See Ex parte Young, supra. See generally Warren, Federal and State Court Interference, 43 Harv.L.Rev. 345, 366—378 (1930); Note, Federal Power to Enjoin State Court Proceedings, 74 Harv.L.Rev. 726, 728—729 (1961). Since the grand jury was not convened and indictments were not obtained until after the filing of the complaint, which sought interlocutory as well as permanent relief, no state 'proceedings' were pending within the intendment of § 2283. To hold otherwise would mean that any threat of prosecution sufficient to justify equitable intervention would also be a 'proceeding' for § 2283. Nor are the subsequently obtained indictments 'proceedings' against which injunctive relief is precluded by § 2283. The indictments were obtained only because the District Court erroneously dismissed the complaint and dissolved the temporary restraining order issued by Judge Wisdom in aid of the jurisdiction of the District Court properly invoked by the complaint. We therefore find it unnecessary to resolve the question whether suits under 42 U.S.C. § 1983 (1958 ed.) come under the 'expressly authorized' exception to § 2283. Compare Cooper v. Hutchinson, 184 F.2d 119, 124 (C.A.3d Cir.1950), with Smith v. Village of Lansing, 241 F.2d 856, 859 (C.A.7th Cir. 1957). See Note, 74 Harv.L.Rev. 726, 738 (1961).
3
See, e.g., Beal v. Missouri Pac. R. Corp., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577 (mere threat of single prosecution); Spielman Motor Sales Co., Inc. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322 (same); Watson v. Buck, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416 (no irreparable injury or constitutional infirmity in statute); Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927 (same). It is difficult to think of a case in which an accused could properly bring a state prosecution to a halt while a federal court decides his claim that certain evidence is rendered inadmissible by the Fourteenth Amendment. Cf. Cleary v. Bolger, 371 U.S. 392, 83 S.Ct. 385, 9 L.Ed.2d 390; Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138.
4
The circumstances of the arrests are set forth in Judge Wisdom's dissenting opinion:
'At gunpoint their homes and offices were raided and ransacked by police officers and trustees from the House of Detention acting under the direct supervision of the staff director and the counsel for the State Un-American Activities Committee. The home and office of the director of Southern Conference Educational Fund were also raided. Among the dangerous articles removed was Thoreau's Journal. A truckload of files, membership lists, subscription lists to SCEF's newspaper, correspondence, and records were removed from SCEF's office, destroying its capacity to function. At the time of the arrests, Mr. Pfister, Chairman of the Committee, announced to the press that the raids and arrest resulted from 'racial agitation'.' 227 F.Supp., at 573.
5
Prosecution under these indictments is awaiting decision of this case.
6
Thirty-seven States, including Louisiana, have adopted the Uniform Declaratory Judgments Act. The Louisiana version, La.Civ.Proc.Code Ann., 1960, Arts. 1871—1883, abolishes the former requirement that there be no other adequate remedy.
7
Our cases indicate that once an acceptable limiting construction is obtained, it may be applied to conduct occurring prior to the construction, see Poulos v. State of New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105; Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049; Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840, provided such application affords fair warning to the defendants, see Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; cf. Harrison v. NAACP, 360 U.S. 167, 179, 79 S.Ct. 1025, 1031, 3 L.Ed.2d 1152.
8
Section 364(7) provides: 'It shall be a felony for any person knowingly and wilfully to * * * (f)ail to register as required in R.S. 14:360 or to make any registration which contains any material false statement or omission.'
9
Section 364(4) provides: 'It shall be a felony for any person knowingly and wilfully to * * * (a)ssist in the formation or participate in the management or to contribute to the support of any subversive organization or foreign subversive organization knowing said organization to be a subversive organization or a foreign subversive organization * * *.'
10
Section 359(5) provides: "Subversive organization' means any organization with engages in or advocates, abets, advises, or teaches, or a purpose of which is to engage in or advocate, abet, advise, or teach activities intended to overthrow, destroy, or to assist in the overthrow or destruction of the constitutional form of the government of the state of Louisiana, or of any political subdivision thereof by revolution, force, violence or other unlawful means, or any other organization which seeks by unconstitutional or illegal means to overthrow or destroy the government of the state of Louisiana or any political subdivision thereof and to establish in place thereof any form of government not responsible to the people of the state of Louisiana under the Constitution of the state of Louisiana.'
11
Section 359(3) provides: "Communist Front Organization' shall, for the purpose of this act include any communist action organization, communist front organization, communist infiltrated organization or communist controlled organization and the fact that an organization has been officially cited or identified by the Attorney General of the United States, the Subversive Activities Control Board of the United States or any Committee or Subcommittee of the United States Congress as a communist organization, a communist action organization, a communist front organization, a communist infiltrated organization or has been in any other way officially cited or identified by any of these aforementioned authorities as a communist controlled organization, shall be considered presumptive evidence of the factual status of any such organization.'
12
Although we hold the statute void on its face, its application to the National Lawyears Guild is instructive. In 1953, the Attorney General of the United States proposed to designate the organization as subversive. His proposal was made under revised regulations, promulgated under Executive Order 10450 to comply with Anti-Fascist Committee, establishing a notice and hearing procedure prior to such designation of an organization. 18 Fed.Reg. 2619; see 1954 Annual Report of the Attorney General, p. 14. The Guild brought an action in the District Court for the District of Columbia attacking the Executive Order and the procedures. A summary judgment in favor of the Attorney General because of failure to exhaust administrative remedies was sustained on appeal and this Court denied certiorari, National Lawyers Guild v. Brownell, 96 U.S.App.D.C. 252, 225 F.2d 552, cert. denied, 351 U.S. 927, 76 S.Ct. 778, 100 L.Ed. 1457. After a Hearing Officer determined that certain interrogatories propounded to the Guild should be answered, the Guild brought another action in the District Court, National Lawyers Guild v. Rogers, Civil Action No. 1738—58, filed July 2, 1958. On September 11, 1958, the Attorney General rescinded the proposal to designate the Guild. 1958 Annual Report of the Attorney General, p. 251. On September 12, 1958, the complaint was dismissed as moot at the instance of the Attorney General, who filed a motion reciting the recission and stating that the Attorney General had 'concluded that the evidence that would now be available at a hearing on the merits of the proposed designation fails to meet the strict standards of proof which guide the determination of proceedings of this character.' The present federal statutes provide that the Subversive Activities Control Board may not designate an organization as a Communist front wighout first according the organization the procedural safeguards of notice and hearing. Subversive Activities Control Act of 1950, § 13, 64 Stat. 998, 50 U.S.C. § 792 (1958 ed.) See Communist Party of United States v. Subversive Activities Control Bd., 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625.
13
Although we read appellee Garrison's brief as conceding that appellants' files and records were seized in aid of the prosecutions under the Subversive Activities and Communist Control Law, we find no concession that the seizure, as alleged in appellants' offer of proof, was also under color of the Communist Propaganda Control Law. Section 390.6 of that statute authorizes the seizure and destruction on summary process of '(a)ll communist propaganda discovered in the state of Louisiana' in violation of the other provisions of the Act, and § 390.2 makes it a felony to disseminate such material. 'Communist propaganda' is defined in § 390.1, which contains a presumption identical to that which we have found to be invalid in § 359(3) of the Subversive Activities and Communist Control Law. In light of the uncertain state of the record, however, we believe that the appellants' attacks upon the constitutionality, on its face and as applied, of the Communist Propaganda Control Law should await determination by the District Court after considering the sufficiency of threats to enforce the law.
1
If the state criminal prosecution were instituted first, a federal court could not enjoin the state action. 28 U.S.C. § 2283 (1958 ed.).
2
Moreover, it is not unlikely that the Louisiana courts would construe these statutes so as to obviate the problems of vagueness noted by the Court in Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377, with regard to a similar Washington statute. Compare Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324, and Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, ante, p. 485.
3
In this case appellants are pursuing a consistent course of conduct, and the only question is whether the Louisiana statutes apply to such conduct. Thus, this case comes within the 'bulk of abstention cases in this Court * * * (where) the unsettled issue of state law principally concerned the applicability of the challenged statute to a certain person or a defined course of conduct, whose resolution in a particular manner would eliminate the constitutional issue and terminate the litigation.' Baggett v. Bullitt, supra, 377 U.S., at 376—377, 84 S.Ct., at 1325—1326. The present case is indistinguishable from Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152, and Albertson v. Millard, 345 U.S. 242, 73 S.Ct. 600, 97 L.Ed. 983, as explained in Baggett, supra, 377 U.S., at 376, n. 13. 84 S.Ct., at 1325.
4
See Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 96—104 (1960).
| 23
|
380 U.S. 451
85 S.Ct. 1130
14 L.Ed.2d 1
The AMERICAN OIL COMPANY, Appellant,v.P. G. NEILL et al.
No. 19.
Argued Jan. 25 and 26, 1965.
Decided April 26, 1965.
Frank I. Goodman, for appellant.
Allan G. Shepard, Boise, Idaho, for appellees.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
This appeal presents the issue of whether, where a licensed Idaho dealer in motor fuels sells and transfers gasoline outside the State for importation into the State by an agency of the Federal Government, the State of Idaho may constitutionally impose an excise tax upon the transaction on the theory that the dealer constructively 'receives' the gasoline in Idaho upon its importation.
2
On June 26, 1959, invitations for bids were issued by the United States Government from the Regional Office of the General Services Administration (GSA) at Seattle, Washington, covering some 607 separate items—each designed to supply a distinct motor fuel need of a particular government agency at one of a multitude of locations in Idaho, Montana, Oregon, and Washington for the period from November 1, 1959, through October 31, 1960. Bids on each item were to be submitted to the Seattle office and were to be evaluated on their individual merits and accepted or rejected without reference to other items.
3
Appellant's predecessor in interest, Utah Oil Refining Company (Utah Oil), is a Delaware corporation. Pursuant to the GSA invitation it transmitted bids from its offices in Salt Lake City, Utah, on various items. Included were numbers 63 and 64 dealing with the supply of approximately 200,000 and 1,000,000 gallons of gasoline, respectively, for the use of the Atomic Energy Commission (AEC) at Idaho Falls, Idaho. Bids on these two items were submitted in alternative form, quoting a price f.o.b. Salt Lake City and a price f.o.b. the AEC activity site in Idaho.1
4
On October 26, 1959, Utah Oil's bids on the two items were accepted in Seattle by the GSA. Under the terms of the contract gasoline was to be sold to the AEC at a designated price f.o.b. Bulk Plant, Salt Lake City. The total price did not include any state tax but provision was made for an increase in the contract price if any such tax was imposed.
5
In accordance with the contract, the AEC, or its operating agent, Phillips Petroleum Company, periodically ordered some 1,436,355 gallons of gasoline. Delivery was effected by Utah Oil in Salt Lake City. Although the facts subsequent to delivery are in dispute, it appears that thereafter common carriers, selected and paid by the AEC, transported the fuel from Salt Lake City to Idaho Falls where it was placed in AEC-owned storage tanks and used in AEC operations in Idaho.2
6
During the time that Utah Oil was performing the contract, it was authorized to do business in the State of Idaho as a 'licensed dealer' as defined by the Idaho Motor Fuels Tax Act, as amended, Idaho Code, Tit. 49, c. 12 (1957). This Act imposes an initial requirement that all motor fuel 'dealers' hold a permit issued by the state Tax Collector. To procure such a permit one need only fill out an application, post bond, and pay a five-dollar filing fee. Securance of a permit is necessary before any dealer can 'import, receive, use, sell or distribute any motor fuels' within the State. Idaho Code Ann. § 49—1202 (1957).
7
A 'dealer' is defined by § 49—1201 as any person who first receives motor fuels in the State within the meaning of the word 'received.'3 As a dealer, one is required to make monthly reports to the State Tax Collector and pay an excise tax of six cents per gallon on all motor fuels 'received' within the ambit of § 49 1201(g). The Act then provides that the proceeds of the tax are to be placed into a state highway fund.
8
During its performance of the contracts Utah Oil submitted the required monthly reports. The State Tax Collector thereupon insisted that payment of the six-cent tax be forthcoming pursuant to § 49—1201(g) due to the fact that Utah Oil was a licensed dealer in the State of Idaho which had sold motor fuel to an agency 'not the holder of (a) * * * dealer permit * * * for importation into the state * * * from a point of origin outside the state.' Taxes totaling $86,181.30 were paid under protest. The instant litigation was then initiated in the District Court of the Third Judicial District of the State of Idaho for refund. Appellant claimed at the threshold that the imposition of the tax on an out-of-state sale to the Federal Government violated the Due Process, Commerce, and Supremacy Clauses of the Constitution.
9
The trial judge granted summary judgment for the appellant finding that the imposition of the tax violated the Due Process and Commerce Clauses since it was applied to a sale made outside of Idaho. On appeal the Idaho Supreme Court reversed, finding the constitutional objections to be without merit. 86 Idaho 7, 383 P.2d 350. We noted probable jurisdiction, 377 U.S. 962, 84 S.Ct. 1643, 12 L.Ed.2d 734, because the validity of a state statute had been upheld over an objection that it was repugnant to the Constitution. 28 U.S.C. § 1257(2) (1958 ed.)
I.
10
When passing on the constitutionality of a state taxing scheme it is firmly established that this Court concerns itself with the practical operation of the tax, that is, substance rather than form. State of Wisconsin v. J. C. Penney Co., 311 U.S. 435, 443—444, 61 S.Ct. 246, 249, 85 L.Ed. 267; Lawrence v. State Tax Comm'n, 286 U.S. 276, 280, 52 S.Ct. 556, 557, 76 L.Ed. 1102, and cases cited therein. This approach requires us to determine the ultimate effect of the law as applied and enforced by a State or, in other words, to find the operating incidence of the tax. Connecticut Gen. Life Ins. Co. v. Johnson, 303 U.S. 77, 80, 58 S.Ct. 436, 438, 82 L.Ed. 673.
11
When a state court has made its own definitive determination as to the operating incidence, our task is simplified. We give this finding great weight in determining the natural effect of a statute, and if it is consistent with the statute's reasonable interpretation it will be deemed conclusive.4 Such a situation is manifest in the instant case.
12
The trial judge found that the operating incidence of the tax clearly fell on the dealer:
13
'(T)he dealer is not in any way required to pass the tax on or collect it from the consumer, and the ultimate purchaser or consumer has no responsibility whatsoever for payment of the tax. While it may be the overall policy of the state to collect a tax of 6¢ per gallon on all gasoline used to propel motor vehicles over Idaho state highways, the taxable event or transaction is not the use by the local consumer or purchaser, but the 'receipt' of the gas by the dealer. It cannot be said under this statute that the licensed dealer is the mere collector of a tax from the purchaser or user * * *.'
14
This conclusion was further buttressed by finding that the Idaho administrative interpretation of the state in the past has been to treat it as a privilege tax upon the dealer.5
15
On appeal the Idaho Supreme Court left the trial court's conclusions undisturbed. Moreover, the State Attorney General in his brief before this Court expressly states that the tax 'is a privilege tax, the incidence of which falls on the dealer * * *.'6 This unanimity between the courts of Idaho and its agencies is to us in accord with the literal interpretation of the Act inasmuch as § 49—1210 clearly states that 'each dealer shall pay to the commissioner an excise tax of six cents per gallon on all motor fuels * * *' with no coinciding provision passing the burden of the tax to the purchaser. We therefore give the findings below controlling effect and hold that the incidence of the tax falls on the dealer.
II.
16
Although the Idaho Supreme Court agreed with the trial judge that the taxed events were the sales of gasoline in Utah, two factors were considered sufficient to bring the transactions within the purview of Idaho's taxing power. First, Utah Oil sold the gasoline with knowledge that it would be imported into and used within Idaho; and, second, Utah Oil had been authorized to do business in Idaho having applied for and received a dealer's permit 'authorizing it to enter into the Idaho market as a distributor of motor fuels * * *.' 86 Idaho, at 23, 383 P.2d, at 360. We conclude that these considerations are insufficient to uphold the tax as against attack under the Due Process Clause.
17
The mere fact that Utah Oil knew that the gasoline was to be imported into Idaho merits little discussion. More than once this Court has struck down taxes directly imposed on or resulting from out-of-state sales which were held to be insufficiently related to activities within the taxing State, despite the fact that the vendor knew that the goods were destined for use in that State. Miller Bros. Co. v. State of Maryland, 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed. 744 (use tax); Norton Co. v. Department of Revenue, 340 U.S. 534, 71 S.Ct. 377, 95 L.Ed. 517 (gross receipts tax); McLeod v. J. E. Dilworth Co., 322 U.S. 327, 64 S.Ct. 1023, 88 L.Ed. 1304 (sales tax).
18
These cases have also firmly established the doctrine that when a tax is imposed on an out-of-state vendor, 'nexus' between the taxing State and the taxpayer is the outstanding prerequisite on state power to tax. Consistent with this requirement there must be 'some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.' Miller Bros. Co. v. State of Maryland, supra, 347 U.S. at 344-345, 74 S.Ct. at 539. Granted that when a corporation, pursuant to permission given, enters a State and proceeds to do local business the 'link' is strong. In such instances there is a strong inference that it exists between the State and transactions which result in economic benefits obtained from a source within the State's territorial limits. The corporation can, however, exempt itself by a clear showing that there are no in-state activities connected with out-of-state sales. In such instances, the transactions are said to be 'dissociated from the local business,' Norton Co. v. Department of Revenue, supra, 340 U.S. at 537, 71 S.Ct. at 380, and therefore may not, consistent with due process, be taxed.
19
In the present case it is plain that neither Utah Oil's position as a licensed dealer in Idaho nor the fact that it otherwise engaged in business there will suffice to uphold the tax. Utah Oil's transfer of gasoline was unquestionably an out-of-state sale vis-a -vis Idaho and entirely unconnected with its business in that State. Each and every phase of the transaction had its locus outside of Idaho: invitations for bids were issued by the Government in Seattle, Washington; Utah Oil submitted its bids from Salt Lake City; the bids were accepted in Seattle; the contract called for delivery of the gasoline f.o.b. Salt Lake City; Utah Oil delivered the gasoline to Salt Lake City, and it was there that title passed. There is no reason to suppose, nor does the record in any way indicate, that Utah Oil's activities in Idaho contributed in any way to the procurement or performance of the contract. Compare Norton Co. v. Department of Revenue, supra, with General Motors Corp. v. Washington, 377 U.S. 436, 84 S.Ct. 1564, 12 L.Ed.2d 430.
20
The Idaho Supreme Court was fully cognizant of these facts but chose to characterize Utah Oil's dealer's permit as authorizing it 'to engage in the very activity it now claims is exempt from the tax.' 86 Idaho, at 23, 383 P.2d, at 360. This statement, however, fails to reflect the clear holding by this Court that the granting by a state 'of the privilege of doing business there and its consequent authority to tax the privilege do not withdraw from the protection of the due process clause the privilege' of doing business elsewhere. Connecticut Gen. Life Ins. Co. v. Johnson, supra, 303 U.S. at 82, 58 S.Ct. at 439. This is exactly the situation present in the instant case. Under the circumstances we hold the fact that Utah Oil was the holder of an Idaho dealer's permit to be purely fortuitous.
21
Since we decide that the exacted tax violates the Due Process Clause, there is no need for discussion of constitutionality under the Commerce or Supremacy Clause. The decision of the Idaho Supreme Court is reversed and the case remanded to that court for proceedings not inconsistent with this opinion.
22
Reversed and remanded.
23
Mr. Justice BLACK dissents.
1
Although the invitation for bids issued by the GSA proposed the alternative delivery points it was discretionary with each bidder as to whether or not quotations for each point were submitted.
2
On the ground that the tax was not a 'use tax' in the usual sense, the trial judge declined the offer of proof as to what occurred after delivery which was tendered by the State Tax Collector. The Idaho Supreme Court concurred, holding that such evidence was immaterial due to the fact that the status of Phillips Petroleum was only that of a contractor for the AEC.
3
The section provides, inter alia: '2. Motor fuel imported into this state other than that placed in storage at refineries or pipe line terminals in this state shall be considered to be received immediately after the same is unloaded and by the person who is the owner thereof at such time if such person is a licensed dealer; otherwise such motor fuel shall be considered to be received by the person who owned such fuel immediately prior to its being unloaded; provided, however, motor fuels shipped or brought into this state by a qualified dealer, which fuel is sold and delivered in this state directly to a person who is not the holder of an uncanceled dealer permit, shall be considered to have been received by the dealer shipping or bringing the same into this state; further provided that motor fuel which is in any manner supplied, sold or furnished to any person or agency, whatsoever, not the holder of an uncanceled Idaho dealer permit, by an Idaho licensed dealer, for importation into the state of Idaho from a point of origin outside the state, shall be considered to be received by the Idaho licensed dealer so supplying, selling, or furnishing such motor fuel, immediately after the imported motor fuel has been unloaded in the state of Idaho.' (Emphasis added.) Idaho Code Ann. § 49—1201(g) (Supp.1963).
4
Compare Railway Express Agency, Inc. v. Com. of Virginia, 347 U.S. 359, 369—372, 74 S.Ct. 558, 564, 565, 98 L.Ed. 337 (dissenting opinion), with Railway Express Agency, Inc. v. Com. of Virginia, 358 U.S. 434, 440—441, 79 S.Ct. 411, 415—416, 3 L.Ed.2d 450.
5
Letter from Don J. McClenahan, Assistant Attorney General of the State of Idaho, to Bigelow Boysen, May 9, 1950. The conclusion was reached in this opinion that 'the act places the legal incidence of the tax upon the dealer * * * and not on the vendee or consumer.' A decision by the Comptroller General also agrees with this conclusion. 24 Comp.Gen. 163 (1944).
6
Brief for the appellee, p. 5.
| 78
|
380 U.S. 563
85 S.Ct. 1162
14 L.Ed.2d 75
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.Clay B. BROWN et al.
No. 63.
Argued March 3, 1965.
Decided April 27, 1965.
[Syllabus from pages 563-565 intentionally omitted]
Wayne G. Barnett, Washington, D.C., for petitioner.
William H. Kinsey, Portland, Or., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
In 1950, when Congress addressed itself to the problem of the direct or indirect acquisition and operation of going businesses by charities or other taxexempt entities, it was recognized that in many of the typical sale and lease-back transactions, the exempt organization was trading on and perhaps selling part of its exemption. H.R.Rep. No. 2319, 81st Cong., 2d Sess., pp. 38—39; S.Rep. No. 2375, 81st Cong., 2d Sess., pp. 31—32, U.S.Code Congressional Service 1950, p. 3053. For this and other reasons the Internal Revenue Code was accordingly amended in several respects, of principal importance for our purposes by taxing as 'unrelated business income' the profits earned by a charity in the operation of a business, as well as the income from long-term leases of the business.1 The short-term lease, however, of five years or less, was not affected and this fact has moulded many of the transactions in this field since that time, including the one involved in this case.2
2
The Commissioner, however, in 1954, announced that when an exempt organization purchased a business and leased it for five years to another corporation, not investing its own funds but paying off the purchase price with rental income, the purchasing organization was in danger of losing its exemption; that in any event the rental income would be taxable income; that the charity might be unreasonably accumulating income; and finally, and most important for this case, that the payments received by the seller would not be entitled to capital gains treatment. Rev.Rul. 54—420, 1954—2 Cum.Bull. 128.
3
This case is one of the many in the course of which the Commissioner has questioned the sale of a business concern to an exempt organization.3 The basic facts are undisputed. Clay Brown, members of his family and three other persons owned substantially all of the stock in Clay Brown & Company, with sawmills and lumber interests near Fortuna, California. Clay Brown, the president of the company and spokesman for the group, was approached by a representative of California Institute for Cancer Research in 1952, and after considerable negotiation the stockholders agreed to sell their stock to the Institute for $1,300,000, payable $5,000 down from the assets of the company and the balance within 10 years from the earnings of the company's assets. It was provided that simultaneously with the transfer of the stock, the Institute would liquidate the company and lease its assets for five years to a new corporation, Fortuna Sawmills, Inc., formed and wholly owned by the attorneys for the sellers.4 Fortuna would pay to the Institute 80% of its operating profit without allowance for depreciation or taxes, and 90% of such payments would be paid over by the Institute to the selling stockholders to apply on the $1,300,000 note. This note was noninterest bearing, the Institute had no obligation to pay it except from the rental income and it was secured by mortgages and assignments of the assets transferred or leased to Fortuna. If the payments on the note failed to total $250,000 over any two consecutive years, the sellers could declare the entire balance of the note due and payable. The sellers were neither stockholders nor directors of Fortuna but it was provided that Clay Brown was to have a management contract with Fortuna at an annual salary and the right to name any successor manager if he himself resigned.5
4
The transaction was closed on February 4, 1953. Fortuna immediately took over operations of the business under its lease, on the same premises and with practically the same personnel which had been employed by Clay Brown & Company. Effective October 31, 1954, Clay Brown resigned as general manager of Fortuna and waived his right to name his successor. In 1957, because of a rapidly declining lumber market, Fortuna suffered severe reverses and its operations were terminated. Respondent sellers did not repossess the properties under their mortgages but agreed they should be sold by the Institute with the latter retaining 10% of the proceeds. Accordingly, the property was sold by the Institute for $300,000. The payments on the note from rentals and from the sale of the properties totaled $936,131.85. Respondents returned the payments received from rentals as the gain from the sale of capital assets. The Commissioner, however, asserted the payments were taxable as ordinary income and were not capital gain within the meaning of I.R.C.1939, § 117(a)(4) and I.R.C.1954, § 1222(3). These sections provide that '(t)he term 'long-term capital gain' means gain from the sale or exchange of a capital asset held for more than 6 months * * *.'
5
In the Tax Court, the Commissioner asserted that the transaction was a sham and that in any event respondents retained such an economic interest in and control over the property sold that the transaction could not be treated as a sale resulting in a long-term capital gain. A divided Tax Court, 37 T.C. 461, found that there had been considerable goodfaith bargaining at arm's length between the Brown family and the Institute, that the price agreed upon was within a reasonable range in the light of the earnings history of the corporation and the adjusted net worth of its assets, that the primary motivation for the Institute was the prospect of ending up with the assets of the business free and clear after the purchase price had been fully paid, which would then permit the Institute to convert the property and the money for use in cancer research, and that there had been a real change of economic benefit in the transaction.6 Its conclusion was that the transfer of respondents' stock in Clay Brown & Company to the Institute was a bona fide sale arrived at in an arm's-length transaction and that the amounts received by respondents were proceeds from the sale of stock and entitled to long-term capital gains treatment under the Internal Revenue Code. The Court of Appeals affirmed, 9 Cir., 325 F.2d 313, and we granted certiorari, 377 U.S. 962, 84 S.Ct. 1647, 12 L.Ed.2d 734.
6
Having abandoned in the Court of Appeals the argument that this transaction was a sham, the Commissioner now admits that there was real substance in what occurred between the Institute and the Brown family. The transaction was a sale under local law. The Institute acquired title to the stock of Clay Brown & Company and, by liquidation, to all of the assets of that company, in return for its promise to pay over money from the operating profits of the company. If the stipulated price was paid, the Brown family would forever lose all rights to the income and properties of the company. Prior to the transfer, these respondents had access to all of the income of the company; after the transfer, 28% of the income remained with Fortuna and the Institute. Respondents had no interest in the Institute nor were they stockholders or directors of the operating company. Any rights to control the management were limited to the management contract between Clay Brown and Fortuna, which was relinquished in 1954.
7
Whatever substance the transaction might have had, however, the Commissioner claims that it did not have the substance of a sale within the meaning of § 1222(3). His argument is that since the Institute invested nothing, assumed no independent liability for the purchase price and promised only to pay over a percentage of the earnings of the company, the entire risk of the transaction remained on the sellers. Apparently, to qualify as a sale, a transfer of property for money or the promise of money must be to a financially responsible buyer who undertakes to pay the purchase price other than from the earnings or the assets themselves or there must be a substantial down payment which shifts at least part of the risk to the buyer and furnishes some cushion against loss to the seller.
8
To say that there is no sale because there is no risk-shifting and that there is no risk-shifting because the price to be paid is payable only from the income produced by the business sold, is very little different from saying that because business earnings are usually taxable as ordinary income, they are subject to the same tax when paid over as the purchase price of property. This argument has rationality but it places an unwarranted construction on the term 'sale,' is contrary to the policy of the capital gains provisions of the Internal Revenue Code, and has no support in the cases. We reject it.
9
'Capital gain' and 'capital asset' are creatures of the tax law and the Court has been inclined to give these terms a narrow, rather than a broad, construction. Corn Products Co. v. Commissioner, 350 U.S. 46, 52, 76 S.Ct. 20, 24, 100 L.Ed. 29. A 'sale,' however, is a common event in the non-tax world; and since it is used in the Code without limiting definition and without legislative history indicating a contrary result, its common and ordinary meaning should at least be persuasive of its meaning as used in the Internal Revenue Code. 'Generally speaking, the language in the Revenue Act, just as in any statute, is to be given its ordinary meaning, and the words 'sale' and 'exchange' are not to be read any differently.' Helvering v. William Flaccus Oak Leather Co., 313 U.S. 247, 249, 61 S.Ct. 878, 880, 85 L.Ed. 1310; Hanover Bank v. Commissioner, 369 U.S. 672, 687, 82 S.Ct. 1080, 1088, 8 L.Ed.2d 187; Commissioner v. Korell, 339 U.S. 619, 627—628, 70 S.Ct. 905, 909—910, 94 L.Ed. 1108; Crane v. Commissioner, 331 U.S. 1, 6, 67 S.Ct. 1047, 1050, 91 L.Ed. 1301; Lang v. Commissioner, 289 U.S. 109, 111, 53 S.Ct. 534, 535, 77 L.Ed. 1066; Old Colony R. Co. v. Commissioner, 284 U.S. 552, 560, 52 S.Ct. 211, 213, 76 L.Ed. 484.
10
'A sale, in the ordinary sense of the word, is a transfer of property for a fixed price in money or its equivalent,' State of Iowa v. McFarland, 110 U.S. 471, 478, 4 S.Ct. 210, 214, 28 L.Ed. 198; it is a contract 'to pass rights of property for money,—which the buyer pays or promises to pay to the seller * * *,' Williamson v. Berry, 8 How. 495, 544, 12 L.Ed. 1170. Compare the definition of 'sale' in § 1(2) of the Uniform Sales Act and in § 2—106(1) of the Uniform Commercial Code. The transaction which occurred in this case was obviously a transfer of property for a fixed price payable in money.
11
Unquestionably the courts, in interpreting a statute, have some 'scope for adopting a restricted rather than a literal or usual meaning of its words where acceptance of that meaning would lead to absurd results * * * or would thwart the obvious purpose of the statute.' Helvering v. Hammel, 311 U.S. 504, 510—511, 61 S.Ct. 368, 371, 85 L.Ed. 303; cf. Commissioner v. Gillette Motor Transport, Inc., 364 U.S. 130, 134, 80 S.Ct. 1497, 1500, 4 L.Ed. 1617; and Commissioner v. P. G. Lake, Inc., 356 U.S. 260, 265, 78 S.Ct. 691, 694, 2 L.Ed.2d 743. But it is otherwise 'where no such consequences (would) follow and where * * * it appears to be consonant with the purposes of the Act * * *.' Helvering v. Hammel, supra, 311 U.S. at 511, 61 S.Ct. at 371; Takao Ozawa v. United States, 260 U.S. 178, 194, 43 S.Ct. 65, 67, 67 L.Ed. 199. We find nothing in this case indicating that the Tax Court or the Court of Appeals construed the term 'sale' too broadly or in a manner contrary to the purpose or policy of capital gains provisions of the Code.
12
Congress intended to afford capital gains treatment only in situatons 'typically involving the realization of appreciation in value accrued over a substantial period of time, and thus to ameliorate the hardship of taxation of the entire gain in one year.' Commissioner v. Gillette Motor Transport, Inc., 364 U.S. 130, 134, 80 S.Ct. 1497, 1500. It was to 'relieve the taxpayer from * * * excessive tax burdens on gains resulting from a conversion of capital investments' that capital gains were taxed differently by Congress. Burnet v. Harmel, 287 U.S. 103, 106, 53 S.Ct. 74, 75, 77 L.Ed. 199; Commissioner v. P. G. Lake, Inc., 356 U.S. 260, 265, 78 S.Ct. 691, 694, 2 L.Ed.2d 743.
13
As of January 31, 1953, the adjusted net worth of Clay Brown & Company as revealed by its books was $619,457.63. This figure included accumulated earnings of $448,471.63, paid in surplus, capital stock and notes payable to the Brown family. The appraised value as of that date, however, relied upon by the Institute and the sellers, was.$1,064,877, without figuring interest on deferred balances. Under a deferred payment plan with a 6% interest figure, the sale value was placed at $1,301,989. The Tax Court found the sale price agreed upon was arrived at in an arm's-length transaction, was the result of real negotiating and was 'within a reasonable range in light of the earnings history of the corporation and the adjusted net worth of the corporate assets.' 37 T.C. 461, 486.
14
Obviously, on these facts, there had been an appreciation in value accruing over a period of years, Commissioner v. Gillette Motor Transport, Inc., supra, and an 'increase in the value of the income-producing property.' Commissioner v. P. G. Lake, Inc., supra, at 266, 78 S.Ct. at 695. This increase taxpayers were entitled to realize at capital gains rates on a cash sale of their stock; and likewise if they sold on a deferred payment plan taking an installement note and a mortgage as security. Further, if the down payment was less than 30% (the 1954 Code requires no down payment at all) and the transaction otherwise satisfied I.R.C.1939, § 44, the gain itself could be reported on the installment basis.
15
In the actual transaction, the stock was transferred for a price payable on the installment basis but payable from the earnings of the company. Eventually $936,131.85 was realized by respondents. This transaction, we think, is a sale, and so treating it is wholly consistent with the purposes of the Code to allow capital gains treatment for realization upon the enhanced value of a capital asset.
16
The Commissioner, however, embellishes his risk-shifting argument. Purporting to probe the economic realities of the transaction, he reasons that if the seller continues to bear all the risk and the buyer none, the seller must be collecting a price for his risk-bearing in the form of an interest in future earnings over and above what would be a fair market value of the property. Since the seller bears the risk, the so-called purchase price must be excessive and must be simply a device to collect future earnings at capital gains rates.
17
We would hesitate to discount unduly the power of pure reason and the argument is not without force. But it does present difficulties. In the first place, it denies what the tax court expressly found—that the price paid was within reasonable limits based on the earnings and net worth of the company; and there is evidence in the record to support this finding. We do not have, therefore, a case where the price has been found excessive.
18
Secondly, if an excessive price is such an inevitable result of the lack of risk-shifting, it would seem that it would not be an impossible task for the Commissioner to demonstrate the fact. However, in this case he offered no evidence whatsoever to this effect; and in a good many other cases involving similar transactions, in some of which the reasonableness of the price paid by a charity was actually contested, the Tax Court has found the sale price to be within reasonable limits, as it did in this case.7
19
Thirdly, the Commissioner ignores as well the fact that if the rents payable by Fortuna were deductible by it and not taxable to the Institute, the Institute could pay off the purchase price at a considerably faster rate than the ordinary corporate buyer subject to income taxes, a matter of considerable importance to a seller who wants the balance of his purchase price paid as rapidly as he can get it. The fact is that by April 30, 1955, a little over two years after closing this transaction, $412,595.77 had been paid on the note and within another year the sellers had collected another $238,498.80, for a total of $651,094.57.
20
Furthermore, risk-shifting of the kind insisted on by the Commissioner has not heretofore been considered an essential ingredient of a sale for tax purposes. In LeTulle v. Scofield, 308 U.S. 415, 60 S.Ct. 313, 84 L.Ed. 355, one corporation transferred properties to another for cash and bonds secured by the properties transferred. The Court held that there was 'a sale or exchange upon which gain or loss must be reckoned in accordance with the provisions of the revenue act dealing with the recognition of gain or loss upon a sale or exchange,' id., at 421, 60 S.Ct. at 316, since the seller retained only a creditor's interest rather than a proprietary one. '(T)hat the bonds were secured solely by the assets transferred and that upon default, the bonholder would retake only the property sold, (did not change) his status from that of a creditor to one having a proprietary stake.' Ibid. Compare Marr v. United States, 268 U.S. 536, 45 S.Ct. 575, 69 L.Ed. 1079. To require a sale for tax purposes to be to a financially responsible buyer who undertakes to pay the purchase price from sources other than the earnings of the assets sold or to make a substantial down payment seems to us at odds with commercial practice and common understanding of what constitutes a sale. The term 'sale' is used a great many times in the Internal Revenue Code and a wide variety of tax results hinge on the occurrence of a 'sale.' To accept the Commissioner's definition of sale would have wide ramifications which we are not prepared to visit upon taxpayers, absent congressional guidance in this direction.
21
The Commissioner relies heavily upon the cases involving a transfer of mineral interests, the transferor receiving a bonus and retaining a royalty or other interest in the mineral production. Burnet v. Harmel, 287 U.S. 103, 53 S.Ct. 74, 77 L.Ed. 199; Palmer v. Bender, 287 U.S. 551, 53 S.Ct. 225, 77 L.Ed. 489; Thomas v. Perkins, 301 U.S. 655, 57 S.Ct. 911, 81 L.Ed. 1324; Kirby Petroleum Co. v. Commissioner, 326 U.S. 599, 66 S.Ct. 409, 90 L.Ed. 343; Burton-Sutton Oil Co. v. Commissioner, 328 U.S. 25, 66 S.Ct. 861, 90 L.Ed. 1062; Commissioner v. Southwest Exploration Co., 350 U.S. 308, 76 S.Ct. 395, 100 L.Ed. 347. Thomas v. Perkins is deemed particularly pertinent. There a leasehold interest was transferred for a sum certain payable in oil as produced and it was held that the amounts paid to the transferor were not includable in the income of the transferee but were income of the transferor. We do not, however, deem either Thomas v. Perkins or the other cases controlling.
22
First, 'Congress * * * has recognized the peculiar character of the business of extracting natural resources,' Burton-Sutton Oil Co. v. Commissioner, 328 U.S. 25, 33, 66 S.Ct. 861, 866; see Stratton's Independence Ltd. v. Howbert, 231 U.S. 399, 413 414, 34 S.Ct. 136, 138—139, 58 L.Ed. 285, which is viewed as an income-producing operation and not as a conversion of capital investment, Anderson v. Helvering, 310 U.S. 404, at 407, 60 S.Ct. 952, at 953, 84 L.Ed. 1277, but one which has its own built-in method of allowing through depletion 'a tax-free return of the capital consumed in the production of gross income through severance,' Anderson v. Helvering, supra, at 408, 60 S.Ct. at 954, which is independent of cost and depends solely on production, Burton-Sutton, 328 U.S. at 34, 66 S.Ct. at 866. Percentage depletion allows an arbitrary deduction to compensate for exhaustion of the asset, regardless of cost incurred or any investment which the taxpayer may have made. The Commissioner, however, would assess to respondents as ordinary income the entire amount of all rental payments made by the Institute, regardless of the accumulated values in the corporation which the payments reflected and without regard for the present policy of the tax law to allow the taxpayer to realize on appreciated values at the capital gains rates.
23
Second, Thomas v. Perkins does not have unlimited sweep. The Court in Anderson v. Helvering, supra, pointed out that it was still possible for the owner of a working interest to divest himself finally and completely of his mineral interest by effecting a sale. In that case the owner of royalty interest, fee interest and deferred oil payments contracted to convey them for $160,000 payable $50,000 down and the balance from one-half the proceeds which might be derived from the oil and gas produced and from the sale of the fee title to any of the lands conveyed. The Court refused to extend Thomas v. Perkins beyond the oil payment transaction involved in that case. Since the transferor in Anderson had provided for payment of the purchase price from the sale of fee interest as well as from the production of oil and gas, 'the reservation of this additional type of security for the deferred payments serve(d) to distinguish this case from Thomas v. Perkins. It is similar to the reservation in a lease of oil payment rights together with a personal guarantee by the lessee that such payments shall at all events equal the specified sum.' Anderson v. Helvering, supra, 310 U.S. at 412—413, 60 S.Ct. at 956. Hence, there was held to be an outright sale of the properties, all of the oil income therefrom being taxable to the transferee notwithstanding the fact of payment of part of it to the seller. The respondents in this case, of course, not only had rights against income, but if the income failed to amount to $250,000 in any two consecutive years, the entire amount could be declared due, which was secured by a lien on the real and personal properties of the company.8
24
There is another reason for us not to disturb the ruling of the Tax Court and the Court of Appeals. In 1963, the Treasury Department, in the course of hearings before the Congress, noted the availability of capital gains treatment on the sale of capital assets even though the seller retained an interest in the income produced by the assets. The Department proposed a change in the law which would have taxed as ordinary income the payments on the sale of a capital asset which were deferred over more than five years and were contingent on future income. Payments, though contingent on income, required to be made within five years would not have lost capital gains status nor would payments not contingent on income even though accompanied by payments which were. Hearings before the House Committee on Ways and Means, 88th Cong., 1st Sess., Feb. 6, 7, 8 and 18, 1963, Pt. I (rev.), on the President's 1963 Tax Message, pp. 154—156.
25
Congress did not adopt the suggested change9 but it is significant for our purposes that the proposed amendment did not deny the fact or occurrence of a sale but would have taxed as ordinary income those income-contingent payments deferred for more than five years. If a purchaser could pay the purchase price out of a earnings within five years the seller would have capital gain rather than ordinary income. The approach was consistent with allowing appreciated values to be treated as capital gain but with appropriate safeguards against reserving additional rights to future income. In comparison, the Commissioner's position here is a clear case of 'overkill' if aimed at preventing the involvement of tax-exempt entities in the purchase and operation of business enterprises. There are more precise approaches to this problem as well as to the question of the possibly excessive price paid by the charity or foundation. And if the Commissioner's approach is intended as a limitation upon the tax treatment of sales generally, it represents a considerable invasion of current capital gains policy, a matter which we think is the business of Congress, not ours.
26
The problems involved in the purchase of a going business by a taxexempt organization have been considered and dealt with by the Congress. Likewise, it was given its attention to various kinds of transactions involving the payment of the agreed purchase price for property from the future earnings of the property itself. In both situations it has responded, if at all, with precise provisions of narrow application. We consequently deem it wise to 'leave to the Congress the fashioning of a rule which, in any event, must have wide ramifications.' American Automobile Ass'n v. United States, 367 U.S. 687, 697, 81 S.Ct. 1727, 1732, 6 L.Ed.2d 1109.
27
Affirmed.
28
Mr. Justice HARLAN, concurring.
29
Were it not for the tax laws, the respondents' transaction with the Institute would make no sense, except as one arising from a charitable impulse. However the tax laws exist as an economic reality in the businessman's world, much like the existence of a competitor. Businessmen plan their affairs around both, and a tax dollar is just as real as one derived from any other source. The Code gives the Institute a tax exemption which makes it capable of taking a greater after-tax return from a business than could a non-tax-exempt individual or corporation. Respondents traded a residual interest in their business for a faster payout apparently made possible by the Institute's exemption. The respondents gave something up; they received something substantially different in return. If words are to have meaning, there was a 'sale or exchange.'
30
Obviously the Institute traded on its tax exemption. The Government would deny that there was an exchange, essentially on the theory that the Institute did not put anything at risk; since its exemption is unlimited, like the magic purse that always contains another penny, the Institute gave up nothing by trading on it.
31
One may observe preliminarily that the Government's remedy for the so-called 'bootstrap' sale—defining sale or exchange so as to require the shifting of some business risks—would accomplish little by way of closing off such sales in the future. It would be neither difficult nor burdensome for future users of the bootstrap technique to arrange for some shift of risks. If such sales are considered a serious abuse, ineffective judicial correctives will only postpone the day when Congress is moved to deal with the problem comprehensively. Furthermore, one may ask why, if the Government does not like the tax consequences of such sales, the proper course is not to attack the exemption rather than to deny the existence of a 'real' sale or exchange.
32
The force underlying the Government's position is that the respondents did clearly retain some risk-bearing interest in the business. Instead of leaping from this premise to the conclusion that there was no sale or exchange, the Government might more profitably have broken the transaction into components and attempted to distinguish between the interest which respondents retained and the interest which they exchanged. The worth of a business depends upon its ability to produce income over time. What respondents gave up was not the entire business, but only their interest in the business' ability to produce income in excess of that which was necessary to pay them off under the terms of the transaction. The value of such a residual interest is a function of the risk element of the business and the amount of income it is capable of producing per year, and will necessarily be substantially less than the value of the total business. Had the Government argued that it was that interest which respondents exchanged, and only to that extent should they have received capital gains treatment, we would perhaps have had a different case.
33
I mean neither to accept nor reject this approach, or any other which falls short of the all-or-nothing theory specifically argued by the petitioner, specifically opposed by the respondents, and accepted by the Court as the premise for its decision. On a highly complex issue with as wide ramifications as the one before us, it is vitally important to have had the illumination provided by briefing and argument directly on point before any particular path is irrevocably taken. Where the definition of 'sale or exchange' is concerned, the Court can afford to proceed slowly and by stages. The illumination which has been provided in the present case convinces me that the position taken by the Government is unsound and does not warrant reversal of the judgment below. Therefore I concur in the judgment to affirm.
34
Mr. Justice GOLDBERG, with whom THE CHIEF JUSTICE and Mr. Justice BLACK join, dissenting.
35
The essential facts of this case which are undisputed illuminate the basic nature of the transaction at issue. Respondents conveyed their stock in Clay Brown & Co., a corporation owned almost entirely by Clay Brown and the members of his immediate family, to the California Institute for Cancer Research, a tax-exempt foundation. The Institute liquidated the corporation and transferred its assets under a five-year lease to a new corporation, Fortuna, which was managed by respondent Clay Brown, and the shares of which were in the name of Clay Brown's attorneys, who also served as Fortuna's directors. The business thus continued under a new name with no essential change in control of its operations. Fortuna agreed to pay 80% of its pretax profits to the Institute as rent under the lease, and the Institute agreed to pay 90% of this amount to respondents in payment for their shares until the respondents received $1,300,000, at which time their interest would terminate and the Institute would own the complete beneficial interest as well as all legal interest in the business. If remittances to respondents were less than $250,000 in any two consecutive years or any other provision in the agreements was violated, they could recover the property. The Institute had no personal liability. In essence respondents conveyed their interest in the business to the Institute in return for 72% of the profits of the business and the right to recover the business assets if payments fell behind schedule.
36
At first glance it might appear odd that the sellers would enter into this transaction, for prior to the sale they had a right to 100% of the corporation's income, but after the sale they had a right to only 72% of that income and would lose the business after 10 years to boot. This transaction, however, afforded the sellers several advantages. The principal advantage sought by the sellers was capital gain, rather than ordinary income, treatment for that share of the business profits which they received. Further, because of the Tax Code's charitable exemption1 and the lease arrangement with Fortuna,2 the Institute believed that neither it nor Fortuna would have to pay income tax on the earnings of the business. Thus the sellers would receive free of corporate taxation, and subject only to personal taxation at capital gains rates, 72% of the business earnings until they were paid $1,300,000. Without the sale they would receive only 48% of the business earnings, the rest going to the Government in corporate taxes, and this 48% would be subject to personal taxation at ordinary rates. In effect the Institute sold the respondents the use of its tax exemption, enabling the respondents to collect $1,300,000 from the business more quickly than they otherwise could and to pay taxes on this amount at capital gains rates. In return, the Institute received a nominal amount of the profits while the $1,300,000 was being paid, and it was to receive the whole business after this debt had been paid off. In any realistic sense the Government's grant of a tax exemption was used by the Institute as part of an arrangement that allowed it to buy a business that in fact cost it nothing. I cannot believe that Congress intended such a result.
37
The Court today legitimates this bootstrap transaction and permits respondents the tax advantage which the parties sought. The fact that respondent Brown, as a result of the Court's holding, escapes payment of about $60,000 in taxes may not seem intrinsically important—although every failure to pay the proper amount of taxes under a progressive income tax system impairs the integrity of that system. But this case in fact has very broad implications. We are told by the parties and by interested amici that this is a test case. The outcome of this case will determine whether this bootstrap scheme for the conversion of ordinary income into capital gain, which has already been employed on a number of occasions, will become even more widespread.3 It is quite clear that the Court's decision approving this tax device will give additional momentum to its speedy proliferation. In my view Congress did not sanction the use of this scheme under the present revenue laws to obtain the tax advantages which the Court authorizes. Moreover, I believe that the Court's holding not only deviates from the intent of Congress but also departs from this Court's prior decisions.
38
The purpose of the capital gains provisions of the Internal Revenue Code of 1954, § 1201 et seq., is to prevent gains which accrue over a long period of time from being taxed in the year of their realization through a sale at high rates resulting from their inclusion in the higher tax brackets. Burnet v. Harmel, 287 U.S. 103, 106, 53 S.Ct. 74, 75, 77 L.Ed. 199. These provisions are not designed, however, to allow capital gains treatment for the recurrent receipt of commercial or business income. In light of these purposes this Court has held that a 'sale' for capital gains purposes is not produced by the mere transfer of legal title. Burnet v. Harmel, supra; Palmer v. Bender, 287 U.S. 551, 53 S.Ct. 225, 77 L.Ed. 489. Rather, at the very least, there must be a meaningful economic transfer in addition to a change in legal title. See Corliss v. Bowers, 281 U.S. 376, 50 S.Ct. 336, 74 L.Ed. 916. Thus the question posed here is not whether this transaction constitutes a sale within the terms of the Uniform Commercial Code or the Uniform Sales Act—we may assume it does—but, rather, the question is whether, at the time legal title was transferred, there was also an economic transfer sufficient to convert ordinary income into capital gain by treating this transaction as a 'sale' within the terms of I.R.C. § 1222(3).
39
In dealing with what constitutes a sale for capital gains purposes, this Court has been careful to look through formal legal arrangements to the underlying economic realities. Income produced in the mineral extraction business, which 'resemble(s) a manufacturing business carried on by the use of the soil,' Burnet v. Harmel, supra, 287 U.S. at 107, 53 S.Ct. at 76, is taxed to the person who retains an economic interest in the oil. Thus, while an outright sale of mineral interests qualifies for capital gains treatment, a purported sale of mineral interests in exchange for a royalty from the minerals produced is treated only as a transfer with a retained economic interest, and the royalty payments are fully taxable as ordinary income. Burnet v. Harmel, supra. See Palmer v. Bender, supra.
40
In Thomas v. Perkins, 301 U.S. 655, 57 S.Ct. 911, 81 L.Ed. 1324, an owner of oil interests transferred them in return for an 'oil production payment,' an amount which is payable only out of the proceeds of later commercial sales of the oil transferred. The Court held that this transfer, which constituted a sale under state law, did not constitute a sale for tax purposes because there was not a sufficient shift of economic risk. The transferor would be paid only if oil was later produced and sold; if it was not produced, he would not be paid. The risks run by the transferor of making or losing money from the oil were shifted so slightly by the transfer that no § 1222(3) sale existed, notwithstanding the fact that the transaction conveyed title as a matter of state law, and once the payout was complete, full ownership of the minerals was to vest in the purchaser.
41
I believe that the sellers here retained an economic interest in the business fully as great as that retained by the seller of oil interests in Thomas v. Perkins. The sellers were to be paid only out of the proceeds of the business. If the business made money they would be paid; if it did not, they would not be paid. In the latter event, of course, they could recover the business, but a secured interest in a business which was losing money would be of dubious value. There was no other security. The Institute was not bound to pay any sum whatsoever. The Institute, in fact, promised only to channel to the sellers a portion of the income it received from Fortuna.
42
Moreover, in numerous cases this Court has refused to transfer the incidents of taxation along with a transfer of legal title when the transferor retains considerable control over the income-producing asset transferred. See, e.g., Commissioner v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898; Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788; Corliss v. Bowers, supra. Control of the business did not, in fact, shift in the transaction here considered. Clay Brown, by the terms of the purchase agreement and the lease was to manage Fortuna. Clay Brown was given power to hire and arrange for the terms of employment of all other employees of the corporation. The lease provided that 'if for any reason Clay Brown is unable or unwilling to so act, the person or persons holding a majority interest in the principal note described in the Purchase Agreement shall have the right to approve his successor to act as general manager of Lessee company.' Thus the shareholders of Clay Brown & Co. assured themselves of effective control over the management of Fortuna. Furthermore, Brown's attorneys were the named shareholders of Fortuna and its Board of Directors. The Institute had no control over the business.
43
I would conclude that on these facts there was not a sufficient shift of economic risk or control of the business to warrant treating this transaction as a 'sale' for tax purposes. Brown retained full control over the operations of the business; the risk of loss and the opportunity to profit from gain during the normal operation of the business shifted but slightly. If the operation lost money, Brown stood to lose; if it gained money Brown stood to gain, for he would be paid off faster. Moreover, the entire purchase price was to be paid out of the ordinary income of the corporation, which was to be received by Brown on a recurrent basis as he had received it during the period he owned the corporation. I do not believe that Congress intended this recurrent receipt of ordinary business income to be taxed at capital gains rates merely because the business was to be transferred to a tax-exempt entity at some future date. For this reason I would apply here the established rule that, despite formal legal arrangements, a sale does not take place until there has been a significant economic change such as a shift in risk or in control of the business.4
44
To hold as the Court does that this transaction constitutes a 'sale' within the terms of I.R.C. § 1222(3), thereby giving rise to capital gain for the income received, legitimates considerable tax evasion. Even if the Court restricts its holding, allowing only those transactions to be § 1222(3) sales in which the price is not excessive, its decision allows considerable latitude for the unwarranted conversion of ordinary income into capital gain. Valuation of a closed corporation is notoriously difficult. The Tax Court in the present case did not determine that the price for which the corporation was sold represented its true value; it simply stated that the price 'was the result of real negotiating' and 'within a reasonable range in light of the earnings history of the corporation and the adjusted net worth of the corporate assets.' 37 T.C., at 486. The Tax Court, however, also said that '(i)t may be * * * that petitioner (Clay Brown) would have been unable to sell the stock at as favorable a price to anyone other than a tax-exempt organization.' 37 T.C., at 485. Indeed, this latter supposition is highly likely, for the Institute was selling its tax exemption, and this is not the sort of asset which is limited in quantity. Though the Institute might have negotiated in order to receive beneficial ownership of the corporation as soon as possible, the Institute, at no cost to itself, could increase the price to produce an offer too attractive for the seller to decline. Thus it is natural to anticipate sales such as this taking place at prices on the upper boundary of what courts will hold to be a reasonable price—at prices which will often be considerably greater than what the owners of a closed corporation could have received in a sale to buyers who were not selling their tax exemptions. Unless Congress repairs the damage done by the Court's holding, I should think that charities will soon own a considerable number of closed corporations, the owners of which will see no good reason to continue paying taxes at ordinary income rates. It should not be necessary, however, for Congress to address itself to this loophole, for I believe that under the rpesent laws it is clear that Congress did not intend to accord capital gains treatment to the proceeds of the type of sale present here.
45
Although the Court implies that it will hold to be 'sales' only those transactions in which the price is reasonable, I do not believe that the logic of the Court's opinion will justify so restricting its holding. If this transaction is a sale under the Internal Revenue Code, entitling its proceeds to capital gains treatment because it was arrived at after hard negotiating, title in a conveyancing sense passed, and the beneficial ownership was expected to pass at a later date, then the question recurs, which the Court does not answer, why a similar transaction would cease to be a sale if hard negotiating produced a purchase price much greater than actual value. The Court relies upon Kolkey v. Commissioner, 254 F.2d 51 (C.A.7th Cir.), as authority holding that a bootstrap transaction will be struck down where the price is excessive. In Kolkey, however, the price to be paid was so much greater than the worth of the corporation in terms of its anticipated income that it was highly unlikely that the price would in fact ever be paid; consequently it was improbable that the sellers' interest in the business would ever be extinguished. Therefore, in Kolkey the court, viewing the case as one involving 'thin capitalization,' treated the notes held by the sellers as equity in the new corporation and payments on them as dividends. Those who fashion 'bootstrap' purchases have become considerably more sophisticated since Kolkey; vastly excessive prices are unlikely to be found and transactions are fashioned so that the 'thin capitalization' argument is conceptually inapplicable. Thus I do not see what rationale the Court might use to strike down price transactions which, though excessive, do not reach Kolkey's dimensions, when it upholds the one here under consideration. Such transactions would have the same degree of risk-shifting, there would be no less a transfer of ownership, and consideration supplied by the buyer need be no less than here.
46
Further, a bootstrap tax avoidance scheme can easily be structured under which the holder of any income-earning asset 'sells' his asset to a tax-exempt buyer for a promise to pay him the income produced for a period of years. The buyer in such a transaction would do nothing whatsoever; the seller would be delighted to lose his asset at the end of, say, 30 years in return for capital gains treatment of all income earned during that period. It is difficult to see, on the Court's rationale, why such a scheme is not a sale. And, if I am wrong in my reading of the Court's opinion, and if the Court would strike down such a scheme on the ground that there is no economic shifting of risk or control, it is difficult to see why the Court upholds the sale presently before it in which control does not change and any shifting of risk is nominal.
47
I believe that the Court's overly conceptual approach has led to a holding which will produce serious erosion of our progressive taxing system, resulting in greater tax burdens upon all taxpayers. The tax avoidance routes opened by the Court's opinion will surely be used to advantage by the owners of closed corporations and other income-producing assets in order to evade ordinary income taxes and pay at capital gains rates, with a resultant large-scale ownership of private businesses by tax-exempt organizations.5 While the Court justifies its result in the name of conceptual purity,6 it simultaneously violates long-standing congressional tax policies that capital gains treatment is to be given to significant economic transfers of investment-type assets but not to ordinary commercial or business income and that transactions are to be judged on their entire substance rather than their naked form. Though turning tax consequences on form alone might produce greater certainty of the tax results of any transaction, this stability exacts as its price the certainty that tax evasion will be produced. In Commissioner v. P.G. Lake, Inc., 356 U.S. 260, 265, 78 S.Ct. 691, 694, 2 L.Ed.2d 743, this Court recognized that the purpose of the capital gains provisions of the Internal Revenue Code is "to relieve the taxpayer from * * excessive tax burdens on gains resulting from a conversion of capital investments, and to remove the deterrent effect of those burdens on such conversions.' * * * And this exception has always been narrowly construed so as to protect the revenue against artful devices.' I would hold in keeping with this purpose and in order to prevent serious erosion of the ordinary income tax provisions of the Code, that the bootstrap transaction revealed by the facts here considered is not a 'sale' within the meaning of the capital gains provisions of the Code, but that it obviously is an 'artful device,' which this Court ought not to legitimate. The Court justifies the untoward result of this case as permitted tax avoidance; I believe it to be a plain and simple case of unwarranted tax evasion.
1
The Revenue Act of 1950, c. 994, 64 Stat. 906, amended § 101 of the Internal Revenue Code of 1939 and added §§ 421 through 424, 3813 and 3814. These sections are now §§ 501 through 504 and 511 through 515 of the Internal Revenue Code of 1954.
2
The sale and leaseback transaction has been much examined. Lanning, Tax Erosion and the 'Bootstrap Sale' of a Business—I, 108 U.Pa.L.Rev. 623 (1960); Moore and Dohan, Sales, Churches, and Monkeyshines, 11 Tax L.Rev. 87 (1956); MacCracken, Selling a Business to a Charitable Foundation, 1954 U.So.Cal.Tax Inst. 205; Comment, The Three-Party Sale and Lease-Back, 61 Mich.L.Rev. 1140 (1963); Alexander, The Use of Foundations in Business, 15 N.Y.U.Tax Inst. 591 (1957); New Developments in Tax-exempt Institutions, 19 J.Taxation 302 (1963). See also Stern, The Great Treasury Raid, p. 245 (1964).
3
Union Bank v. United States, 285 F.2d 126, 152 Ct.Cl. 426; Commissioner v. Johnson, 1 Cir., 267 F.2d 382, aff'g Estate of Howes v. Commissioner, 30 T.C. 909; Kolkey v. Commissioner, 7 Cir., 254 F.2d 51; Knapp Bros. Shoe Mfg. Corp. v. United States, 142 F.Supp. 899, 135 Ct.Cl. 797; Oscar C. Stahl, P—H 1963 T.C.Mem.Dec. 63,201; Isis Windows, Inc., P—H 1963 T.C.Mem.Dec. 63,176; Ralph M. Singer, P—H 1963 T.C.Mem.Dec. 63,158; Brekke v. Commissioner, 40 T.C. 789; Royal Farms Dairy Co. v. Commissioner, 40 T.C. 172; Anderson Dairy, Inc. v. Commissioner, 39 T.C. 1027; Estate of Hawthorne, P—H 1960 T.C.Mem.Dec. 60,146; Estate of Hawley, P—H 1961 T.C.Mem.Dec. 61,038; Ohio Furnace Co. v. Commissioner, 25 T.C. 179; Truschel v. Commissioner, 29 T.C. 433. Some of these cases are now pending on appeal in one or more of the courts of appeals.
4
The net current assets subject to liabilities were sold by the Institute to Fortuna for a promissory note which was assigned to sellers. The lease covered the remaining assets of Clay Brown & Company. Fortuna was capitalized at $25,000, its capital being paid in by its stockholders from their own funds.
5
Clay Brown's personal liability for some of the indebtedness of Clay Brown & Company, assumed by Fortuna, was continued. He also personally guaranteed some additional indebtedness incurred by Fortuna.
6
The Tax Court found nothing to indicate that the arrangement between the stockholders and the Institute contemplated the Brown family's being free at any time to take back and operate the business.
7
In all but four of the cases listed in note 3, supra, there was a finding that the price was within permissible limits. The exceptions are: Kolkey v. Commissioner, where the price was considered grossly excessive and the transaction a sham; Union Bank v. United States, in which the Court of Claims referred to the evidence of excessive price but nevertheless held a sale had taken place; Brekke v. Commissioner, where the seller was not before the court, the price was said to be twice the fair market value and the issue was the deductibility of the rent paid by the operating company to the exempt organization; and Estate of Hawley, in which there was no express treatment of the sale price, but the transaction was found to be a bona fide sale.
8
Respondents place considerable reliance on the rule applicable where patents are sold or assigned, the seller or assignor reserving an income interest. In Rev.Rul. 58—353, 1958—2 Cum.Bull. 408, the Service announced its acquiescence in various Tax Court cases holding that the consideration received by the owner of a patent for the assignment of a patent or the granting of an exclusive license to such patent may be treated as the proceeds of a sale of property for income tax purposes, even though the consideration received by the transferor is measured by production, use, or sale of the patented article. The Government now says that the Revenue Ruling amounts only to a decision to cease litigating the question, at least temporarily, and that the cases on which the rule is based are wrong in principle and inconsistent with the cases dealing with the taxation of mineral interests. We note, however, that in Rev.Rul. 60—226, 1960—1 Cum.Bull. 26, the Service extended the same treatment to the copyright field. Furthermore, the Secretary of the Treasury in 1963 recognized the present law to the that 'the sale of a patent by the inventor may be treated as the sale of a capital asset,' Hearings before the House Committee on Ways and Means, 88th Cong., 1st Sess., Feb. 6, 7, 8 and 18, 1963, Pt. I (rev.), on the President's 1963 Tax Message, p. 150, and the Congress failed to enact the changes in the law which the Department recommended.
These developments in the patent field obviously do not help the position of the Commissioner. Nor does I.R.C.1954, § 1235, which expressly permits specified patent sales to be treated as sales of capital assets entitled to capital gains treatment. We need not, however, decide here whether the extraction and patent cases are irreconcilable or whether, instead, each situation has its own peculiar characteristics justifying discrete treatment under the sale and exchange language of § 1222. Whether the patent cases are correct or not, absent § 1235, the fact remains that this case involves the transfer of corporate stock which has substantially appreciated in value and a purchase price payable from income which has been held to reflect the fair market value of the assets which the stock represents.
9
It did, however, accept and enact another suggestion made by the Treasury Department. Section 483, which was added to the Code, provided for treating a part of the purchase price as interest in installment sales transactions where no interest was specified. The provision was to apply as well when the payments provided for were indefinite as to their size, as for example 'where the payments are in part at least dependent upon future income derived from the property.' S.Rep. No. 830, 88th Cong., 2d Sess., p. 103, U.S.Code Congressional and Administrative News 1964, p. 1776. This section would apparently now apply to a transaction such as occurred in this case.
1
See I.R.C.1954, § 501(c)(3).
2
This lease arrangement was designed to permit the Institute to take advantage of its charitable exemption to avoid taxes on payment of Fortuna's profits to it, with Fortuna receiving a deduction for the rental payments as an ordinary and necessary business expense, thus avoiding taxes to both. Though unrelated business income is usually taxable when received by charities, an exception is made for income received from the elase of real and personal property of less than five years. See I.R.C. § 514; Lanning, Tax Erosion and the 'Bootstrap Sale' of a Business I, 108 Pa.L.Rev. 623, 684—689. Though denial of the charity's tax exemption on rent received from Fortuna would also remove the economic incentive underlying this bootstrap transaction, there is no indication in the Court's opinion that such income is not tax exempt. See the Court's opinion, ante, at 565—566.
3
See the articles cited in the majority opinion, ante, at 566, n. 2.
4
The fact that respondents were to lose complete control of the business after the payments were complete was taken into account by the Commissioner, for he treated the business in respondents' hands as a wasting asset, see I.R.C.1954, § 167, and allowed them to offset their basis in the stock against the payments received.
5
Attorneys for amici have pointed out that tax-exempt charities which they represent have bought numerous closed corporations.
6
It should be noted, however, that the Court's holding produces some rather unusual conceptual results. For example, after the payout is complete the Institute presumably would have a basis of $1,300,000 in a business that in reality cost it nothing. If anyone deserves such a basis, it is the Government, whose grant of tax exemption is being used by the Institute to acquire the business.
| 1112
|
380 U.S. 528
85 S.Ct. 1177
14 L.Ed.2d 50
A. M. HARMAN, Jr., et al., Appellants,v.Lars FORSSENIUS et al.
No. 360.
Argued March 1 and 2, 1965.
Decided April 27, 1965.
Joseph C. Carter, Jr., Richmond, Va., for appellants.
H. E. Windener, Jr., Bristol, Va., for appellees.
Harold H. Greene, Washington, D.C., for United States, as amicus curiae, by special leave of Court.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
We are called upon in this case to construe, for the first time, the Twenty-fourth Amendment to the Constitution of the United States:
2
'The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.'
3
The precise issue is whether § 24—17.2 of the Virginia Code which provides that in order to qualify to vote in federal elections one must either pay a poll tax or file a witnessed or notarized certificate of residence1—contravenes this command.
4
Prior to the adoption of the Twenty-fourth Amendment, the Virginia Constitution (Art. II, §§ 18—20) and statutes (Va.Code Ann. §§ 24—17, 24—67 (1950)) established uniform standards for qualification for voting in both federal and state elections. The requirements were: (1) United States citizenship; (2) a minimum age of twenty-one; (3) residence in the State for one year, in the city or county for six months, and in the voting precinct for thirty days; and (4) payment 'at least six months prior to any election * * * to the proper officer all State poll taxes ($1,50 annually) assessed or assessable against him for three years next preceding * * * such election.'2 The statutes further provided for permanent registration.3 Once registered, the voters could qualify for elections in subsequent years merely by paying the poll taxes.
5
In 1963, in anticipation of the promulgation of the Twenty-fourth Amendment, the Governor of Virginia convened a special session of the Virginia General Assembly. On November 21 of that year, the General Assembly enacted two Acts4 designed
6
'(1) to enable persons to register and vote in federal elections without the payment of poll tax or other tax as required by the 24th Amendment to the Constitution of the United States, (2) to continue in effect in all other elections the present registration and voting requirements of the Constitution of Virginia, and (3) to provide methods by which all persons registered to vote in federal or other elections may prove that they meet the residence requirements of § 18 of the Constitution of Virginia.'5
7
No changes were made with regard to qualification for voting in state elections. With regard to federal elections, however, the payment of a poll tax as an absolute prerequisite to registration and voting was eliminated, and a provision was added requiring the federal voter to file a certificate of residence in each election year or, at his option, to pay the customary poll taxes. The statute provides that the certificate of residence must be filed no earlier than October 1 of the year immediately preceding that in which the voter desires to vote and not later than six months prior to the election. The voter must state in the certificate (which must be notarized or witnessed) his present address, that he is currently a resident of Virginia, that he has been a resident since the date of his registration, and that he does not presently intend to remove from the city or county of which he is a resident prior to the next general election. Va.Code Ann. § 24—17.2 (1964 Supp.). Thus, as a result of the 1963 Acts, a citizen after registration may vote in both federal and state elections upon the payment of all assessable poll taxes. Va.Code Ann. § 24—17 (1964 Supp.). If he has not paid such taxes he cannot vote in state elections, and may vote in federal elections only upon filing a certificate of residence in each election year. Va.Code Ann. §§ 24—17.1, 24—17.2 (1964 Supp.).
8
The present appeal originated as two separate class actions, brought by appellees in the United States District Court for the Eastern District of Virginia, attacking the foregoing provisions of the 1963 Virginia legislation as violative of Art. I, § 2, of the Constitution of the United States, and the Fourteenth, Seventeenth, and Twenty-fourth Amendments thereto. The complaints, which prayed for declaratory and injunctive relief, named as defendants (appellants here) the three members of the Virginia State Board of Elections and, in one case, the County Treasurer of Roanoke County, Virginia, and, in the other, the Director of Finance of Fairfax County. The jurisdiction of the District Court was invoked pursuant to 28 U.S.C. §§ 1331, 1343, 2201 (1958 ed.), and a court of three judges was convened pursuant to 28 U.S.C. §§ 2281, 2284 (1958 ed.).
9
The District Court denied the State's motion to stay the proceedings in order to give the Virginia courts an opportunity to resolve the issues and interpret the statutes involved. The court further denied the State's motions to dismiss for failure to join indispensable parties, for failure to state a claim on which relief could be granted, and for want of a justiciable controversy.6 On the merits, the District Court held that the certificate of residence requirement was 'a distinct qualification' or at least an 'increase (in) the quantum of necessary proof of residence' imposed solely on the federal voter, and that it therefore violated Art. I, § 2, and the Seventeenth Amendment, which provide that electors choosing a Representative or Senator in the Congress of the United States 'shall have the qualifications requisite for electors of the most numerous branch of the State legislature.' The court rejected the argument that the residency certificate was merely a method, like the poll tax, of proving the residence qualification which is imposed on both federal and state voters. Accordingly, the District Court entered an order declaring invalid the portions of the 1963 Virginia legislation which required the filing of a certificate of residence and enjoining appellants from requiring compliance by a voter with said portions of the 1963 Acts. We noted probable jurisdiction. 379 U.S. 810, 85 S.Ct. 83, 13 L.Ed.2d 25.
10
We hold that § 24—17.2 is repugnant to the Twenty-fourth Amendment and affirm the decision of the District Court on that basis. We therefore find it unnecessary to determine whether that section violates Art. I, § 2, and the Seventeenth Amendment.
I.
11
At the outset, we are faced with the State's contention that the District Court should have stayed the proceedings until the courts of Virginia had been afforded a reasonable opportunity to pass on underlying issues of state law and to construe the statutes involved. We hold that the District Court did not abuse its discretion in refusing to postpone the exercise of its jurisdiction.
12
In applying the doctrine of abstention, a federal district court is vested with discretion to decline to exercise or to postpone the exercise of its jurisdiction in deference to state court resolution of underlying issues of state law. Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971.7 Where resolution of the federal constitutional question is dependent upon, or may be materially altered by, the determination of an uncertain issue of state law, abstention may be proper in order to avoid unnecessary friction in federalstate relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication. E.g., Railroad Comm'n of Texas v. Pullman Co., supra. The doctrine, however, contemplates that deference to state court adjudication only be made where the issue of state law is uncertain. Davis v. Mann, 377 U.S. 678, 690, 84 S.Ct. 1441, 1447, 12 L.Ed.2d 609; McNeese v. Board of Education, 373 U.S. 668, 673 674, 83 S.Ct. 1433, 1436—1437, 10 L.Ed.2d 622; City of Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77, 84, 78 S.Ct. 1063, 1067, 2 L.Ed.2d 1174.8 If the state statute in question, although never interpreted by a state tribunal, is not fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question, it is the duty of the federal court to exercise its properly invoked jurisdiction. Baggett v. Bullitt, 377 U.S. 360, 375—379, 84 S.Ct. 1316, 1324—1326, 12 L.Ed.2d 377. Thus, 'recognition of the role of state courts as the final expositors of state law implies no disregard for the primacy of the federal judiciary in deciding questions of federal law.' England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 415—416, 84 S.Ct. 461, 465, 11 L.Ed.2d 440.
13
The state statutes involved here are clear and unambiguous in all material respects.9 While the State suggests that the Virginia tribunals are 'unquestionably far better equipped than the lower (federal) court to unravel the skeins of local law and administrative practices in which the Appellees' claims are entangled,'10 the State does not point to any provision in the legislation which leaves 'reasonable room for a construction by the Virginia courts which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem.' Harrison v. NAACP, 360 U.S. 167, 177, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152.
14
In spite of the clarity of the 1963 legislation, the State argues that the District Court should have abstained on the ground that if the certificate of residence requirement were found to be a qualification distinct from those specified in the Virginia Constitution, it would be invalid as a matter of Virginia law and 'a crucial federal constitutional issue would accordingly disappear from the case.' We find little force in this argument. The section of the Virginia Constitution (Art. II, § 18) on which the State relies expressly limits the franchise to citizens who have met certain residency requirements.11 The statute in issue, § 24—17.2, requires the voter to certify that he meets those residence requirements. It is thus difficult to envisage how § 24 17.2 could be construed as setting forth a qualification not found in the Virginia Constitution.12
15
In addition to the clarity of the Virginia statutes, support for the District Court's refusal to stay the proceedings is found in the nature of the constitutional deprivation alleged and the probable consequences of abstaining. Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 229, 84 S.Ct. 1226, 1232, 12 L.Ed.2d 256; Baggett v. Bullitt, 377 U.S. 360, 375—379, 84 S.Ct. 1316, 1324—1326, 12 L.Ed.2d 377. The District Court was faced with two class actions attacking a statutory scheme allegedly impairing the right to vote in violation of Art. I, § 2, and the Fourteenth, Seventeenth and Twenty-fourth Amendments. As this Court has stressed on numerous occasions, '(t)he right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.' Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506. The right is fundamental 'because preservative of all rights.' Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220. In appraising the motion to stay proceedings, the District Court was thus faced with a claimed impairment of the fundamental civil rights of a broad class of citizens. The motion was heard about two months prior to the deadline for meeting the statutory requirements and just eight months before the 1964 general elections. Given the importance and immediacy of the problem, and the delay inherent in referring questions of state law to state tribunals,13 it is evident that the District Court did not abuse its discretion in refusing to abstain. Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 229, 84 S.Ct. 1226, 1232, 12 L.Ed.2d 256; Baggett v. Bullitt, 377 U.S. 360, 375—379, 84 S.Ct. 1316, 1324—1326, 12 L.Ed.2d 377.14
II.
16
Reaching the merits, it is important to emphasize that the question presented is not whether it would be within a State's power to abolish entirely the poll tax and require all voters state and federal—to file annually a certificate of residence. Rather, the issue here is whether the State of Virginia may constitutionally confront the federal voter with a requirement that he either pay the customary poll taxes as required for state elections or file a certificate of residence. We conclude that this requirement constitutes an abridgment of the right to vote in federal elections in contravention of the Twenty-fourth Amendment.
17
Prior to the proposal of the Twenty-fourth Amendment in 1962, federal legislation to eliminate poll taxes, either by constitutional amendment or statute, had been introduced in every Congress since 1939. The House of Representatives passed anti-poll tax bills on five occasions and the Senate twice proposed constitutional amendments.15 Even though in 1962 only five States retained the poll tax as a voting requirement, Congress reflected widespread national concern with the characteristics of the tax. Disenchantment with the poll tax was manyfaceted.16 One of the basic objections to the poll tax was that it exacted a price for the privilege of exercising the franchise. Congressional hearings and debates indicate a general repugnance to the disenfranchisement of the poor occasioned by failure to pay the tax.17
18
'While it is true that the amount of poll tax now required to be paid in the several States is small and imposes only a slight economical obstacle for any citizen who desires to qualify in order to vote, nevertheless, it is significant that the voting in poll tax States is relatively low as compared to the overall population which would be eligible. * * * (T)he historical analysis * * * indicates that where the poll tax has been abandoned * * * voter participation increased.' H.R.Rep.No.1821, 87th Cong., 2d Sess., p. 3.
19
Another objection to the poll tax raised in the congressional hearings was that the tax usually had to be paid long before the election—at a time when political campaigns were still quiescent which tended to eliminate from the franchise a substantial number of voters who did not plan so far ahead.18 The poll tax was also attacked as a vehicle for fraud which could be manipulated by political machines by financing block payments of the tax.19 In addition, and of primary concern to many, the poll tax was viewed as a requirement adopted with an eye to the disenfranchisement of Negroes and applied in a discriminatory manner.20 It is against this background that Congress proposed, and three-fourths of the States ratified, the Twenty-fourth Amendment abolishing the poll tax as a requirement for voting in federal elections.
20
Upon adoption of the Amendment, of course, no State could condition the federal franchise upon payment of a poll tax. The State of Virginia accordingly removed the poll tax as an absolute prerequisite to qualification for voting in federal elections, but in its stead substituted a provision whereby the federal voter could qualify either by paying the customary poll tax or by filing a certificate of residence six months before the election.
21
It has long been established that a State may not impose a penalty upon those who exercise a right guaranteed by the Constitution. Frost & Frost Trucking Co. v. Railroad Comm'n of California, 271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101. 'Constitutional rights would be of little value if they could be * * * indirectly denied,' Smith v. Allwright, 321 U.S. 649, 664, 64 S.Ct. 757, 765, 88 L.Ed. 987, or 'manipulated out of existence.' Gomillion v. Lightfoot, 364 U.S. 339, 345, 81 S.Ct. 125, 129, 5 L.Ed.2d 110. Significantly, the Twenty-fourth Amendment does not merely insure that the franchise shall not be 'denied' by reason of failure to pay the poll tax; it expressly guarantees that the right to vote shall not be 'denied or abridged' for that reason. Thus, like the Fifteenth Amendment, the Twenty-fourth 'nullifies sophisticated as well as simple-minded modes' of impairing the right guaranteed. Lane v. Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281. 'It hits onerous procedural requirements which effectively handicap exercise of the franchise= by those claiming the constitutional immunity. Ibid.; cf. Gray v. Johnson, 234 F.Supp. 743 (D.C.S.D.Miss.).
22
Thus, in order to demonstrate the invalidity of § 24—17.2 of the Virginia Code, it need only be shown that it imposes a material requirement solely upon those who refuse to surrender their constitutional right to vote in federal elections without paying a poll tax. Section 24—17.2 unquestionably erects a real obstacle to voting in federal elections for those who assert their constitutional exemption from the poll tax. As previously indicated, the requirement for those who wish to participate in federal elections without paying the poll tax is that they file in each election year, within a stated interval ending six months before the election, a notarized or witnessed certificate attesting that they have been continuous residents of the State since the date of registration (which might have been many years before under Virginia's system of permanent registration) and that they do not presently intend to leave the city or county in which they reside prior to the forthcoming election. Unlike the poll tax bill which is sent to the voter's residence, it is not entirely clear how one obtains the necessary certificate. The statutes merely provide for the distribution of the forms to city and county court clerks, and for further distribution to local registrars and election officials. Va.Code Ann. § 24—28.1 (1964 Supp.). Construing the statutes in the manner least burdensome to the voter, it would seem that the voter could either obtain the certificate of residence from local election officials or prepare personally 'a certificate in form substantially' as set forth in the statute. The certificate must then be filed 'in person, or otherwise' with the city or county treasurer. This is plainly a cumbersome procedure. In effect, it amounts to annual re-registration which Virginia officials have sharply contrasted with the 'simple' poll tax system.21 For many, it would probably seem far preferable to mail in the poll tax payment upon receipt of the bill. In addition, the certificate must be filed six months before the election, thus perpetuating one of the disenfranchising characteristics of the poll tax which the Twenty-fourth Amendment was designed to eliminate. We are thus constrained to hold that the requirement imposed upon the voter who refuses to pay the poll tax constitutes an abridgment of his right to vote by reason of failure to pay the poll tax.
23
The requirement imposed upon those who reject the poll tax method of qualifying would not be saved even if it could be said that it is no more onerous, or even somewhat less onerous, than the poll tax. For federal elections, the poll tax is abolished absolutely as a prerequisite to voting, and no equivalent or milder substitute may be imposed. Any material requirement imposed upon the federal voter solely because of his refusal to waive the constitutional immunity subverts the effectiveness of the Twenty-fourth Amendment and must fall under its ban.
24
Nor may the statutory scheme be saved, as the State asserts, on the ground that the certificate is a necessary substitute method of proving residence, serving the same function as the poll tax. As this Court has held in analogous situations, constitutional deprivations may not be justified by some remote administrative benefit to the State. Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 780; Oyama v. California, 332 U.S. 633, 646—647, 68 S.Ct. 269, 275—276, 92 L.Ed. 249. Moreover, in this case the State has not demonstrated that the alternative requirement is in any sense necessary to the proper administration of its election laws. The forty-six States which do not require the payment of poll taxes have apparently found no great administrative burden in insuring that the electorate is limited to bona fide residents. The availability of numerous devices to enforce valid residence requirements—such as registration, use of the criminal sanction, purging of registration lists, challenges and oaths, public scrutiny by candidates and other interested parties—demonstrates quite clearly the lack of necessity for imposing a requirement whereby persons desiring to vote in federal elections must either pay a poll tax or file a certificate of residence six months prior to the election.
25
The Virginia poll tax was born of a desire to disenfranchise the Negro.22 At the Virginia Constitutional Convention of 1902, the sponsor of the suffrage plan of which the poll tax was an integral part frankly expressed the purpose of the suffrage proposal:
26
'Discrimination! Why, that is precisely what we propose; that, exactly, is what this Convention was elected for—to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution, with a view to the elimination of every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate.'23
27
The poll tax was later characterized by the Virginia Supreme Court of Appeals as a device limiting 'the right of suffrage to those who took sufficient interest in the affairs of the State to qualify themselves to vote.' Campbell v. Goode, 172 Va. 463, 466, 2 S.E.2d 456, 457. Whether, as the State contends, the payment of the poll tax is also a reliable indicium of continuing residence need not be decided, for even if the poll tax has served such an evidentiary function, the confrontation of the federal voter with a requirement that he either continue to pay the customary poll tax or file a certificate of residence could not be sustained. For federal elections the poll tax, regardless of the services it performs, was abolished by the Twenty-fourth Amendment. That Amendment was also designed to absolve all requirements impairing the right to vote in federal elections by reason of failure to pay the poll tax. Section 24—17.2 of the Virginia Code falls within this proscription.
28
The judgment of the District Court is affirmed.
29
Affirmed.
30
Mr. Justice HARLAN agrees with this opinion insofar as it rests on the proposition that the Twenty-fourth Amendment forbids the use of a state poll tax for any purpose whatever in determining voter qualifications in all elections for federal office. He also agrees that this is not a case for application of the abstention doctrine.
1
Va.Code Ann. § 24—17.2 (1964 Supp.) provides:
'Proof of residence required; how furnished.—
'(a) No person shall be deemed to have the qualifications of residence required by § 18 of the Constitution of Virginia and §§ 24—17 and 24—17.1 in any calendar year subsequent to that in which he reg-
istered under either § 24—67 or § 24—67.1, and shall not be entitled to vote in any election held in this State during any such subsequent calendar year, unless he has offered proof of continuing residence by filing in person, or otherwise, a certificate of residence at the time and in the manner prescribed in paragraph (b) of this section, or, at his option, by personally paying to the proper officer, at least six months prior to any such election in which he offers to vote, all State poll taxes assessed or assessable against him for the three years next preceding that in which he offers to vote. Proof of continuing residence may only be established by either of such two methods.
'(b) Any person who shall offer proof of continuing residence by filing a certificate of residence as provided in paragraph (a) of this section, shall file with the treasurer of his county or city not earlier than the first of October of the year next preceding that in which he offers to vote and not later than six months prior to the election, a certificate in form substantially as follows:
'I do certify that I am now and have been a resident of Virginia since the date of my registration to vote under the laws of Virginia, that I am now a resident of .......... (city or county), residing at .......... (street and number, or place of residence therein), and that it is my present intention not to remove from the city or county stated herein prior to the next general election.
'..........ein
'Witnessed:
'or
'Subscribed and sworn to before me this .......... day of .........., 19....
'..........and
'Notary Public'
2
Members of the Armed Services are exempt from the poll tax requirement. Va.Code Ann. § 24—23.1 (1950).
3
Va.Code Ann. §§ 24—52 to 24—119 (1950). Registration, effected by filing an application showing that the statutory requirements had been met (§ 24—68), was permanent. Thereafter, in order to qualify for subsequent elections, the voter merely had to pay the assessed poll taxes (unless, of course, his name had been removed from the registration lists for, inter alia, failure to meet the statutory and constitutional requirements (§§ 24—94 to 24 96)).
4
Va.Acts, 1963, Extra Sess., cc. 1 and 2. Chapter 2 is now codified in Title 24 of the Virginia Code. Chapter 1—applicable to 1964 elections only—has not been codified.
5
Va.Acts, 1963, Extra Sess., c. 2, § 1(a).
6
The motion to dismiss for failure to state a claim on which relief could be granted and for failure to set forth a justiciable controversy was directed solely at the complaint of appellee Henderson, who was registered and had already paid his poll tax. The District Court was patently correct in rejecting the State's argument that appellee Henderson lacked standing to maintain this action. Gray v. Sanders, 372 U.S. 368, 374—376, 83 S.Ct. 801, 805—806, 9 L.Ed.2d 821; Baker v. Carr, 369 U.S. 186, 204—208, 82 S.Ct. 691, 703—705, 7 L.Ed.2d 663.
7
See Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 328—329, 84 S.Ct. 1293, 1295—1296, 12 L.Ed.2d 350; Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 1324, 12 L.Ed.2d 377; England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 415—416, 84 S.Ct. 461, 464—465, 11 L.Ed.2d 440.
8
To the same effect, see England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 415—416, 84 S.Ct. 461, 464 465, 11 L.Ed.2d 440; United Gas Pipe Line Co. v. Ideal Cement Co., 369 U.S. 134, 135—136, 82 S.Ct. 676, 677—678, 7 L.Ed.2d 623; Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101.
9
The only ambiguity discussed in the briefs of the parties or developed during argument concerned the question whether § 24 17.2 required the voter to secure a prepared certificate of residence from local election officials or whether he could personally prepare one 'in form substantially' as set forth in the statute. We do not regard this as a material ambiguity having any effect on the constitutional question and accept, for the purposes of this decision, the State's assertion that the voter may secure such a form from local election officials or prepare one according to the statutory description. Infra, p. 541.
10
The State also argues that since the States are empowered by Art. I, § 2, Art. II, § 1, and the Seventeenth Amendment to create voter qualifications for federal elections, the question whether a state statutory enactment creates a voter qualification must initially be referred to the state tribunals. True, '(t)he States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised.' Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 50, 79 S.Ct. 985, 989, 3 L.Ed.2d 1072; Pope v. Williams, 193 U.S. 621, 633, 24 S.Ct. 573, 575, 48 L.Ed. 817; Mason v. Missouri, 179 U.S. 328, 335, 21 S.Ct. 125, 128, 45 L.Ed. 214. The right to vote, however, is constitutionally protected, Exparte Yarbrough, 110 U.S. 651, 663—665, 4 S.Ct. 152, 158—159, 28 L.Ed. 274; Smith v. Allwright, 321 U.S. 649, 664, 64 S.Ct. 757, 765, 88 L.Ed. 987; and the conditions imposed by the States upon that right must not contravene any constitutional provision or congressional restriction enacted pursuant to constitutional power. Carrington v. Rash, 380 U.S. 89, 91, 85 S.Ct. 775, 777; Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 50—51, 79 S.Ct. 985, 989—990, 3 L.Ed.2d 1072; United States v. Classic, 313 U.S. 299, 315, 61 S.Ct. 1031, 1037, 85 L.Ed. 1368. The question presented in this case—whether the Virginia statute imposes a condition upon the franchise which violates the United States Constitution—is thus quite clearly a federal question. The precise nature of the condition imposed is, of course, a question of Virginia law. However, the statutory requirement is clear and unambiguous, and the sole question remaining is whether the state requirement is valid under the Federal Constitution.
11
Va.Const., Art. II, § 18, sets forth as a qualification for voting: residency in the State for one year, in the city or county six months, and in the voting precinct thirty days.
12
Moreover, the State cites no Virginia decisions in support of its contention that the requirement might constitute an impermissible 'qualification' according to Virginia law.
13
See Baggett v. Builitt, 377 U.S. 360, 378—379, 84 S.Ct. 1316, 1326—1327, 12 L.Ed.2d 377; England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 425—426, 84 S.Ct. 461, 470 471, 11 L.Ed.2d 440 (DOUGLAS, J., concurring).
14
The State also asserts that the District Court erred in denying its motion to dismiss for failure to join indispensable parties. The argument is that the relief requested in the complaints was an injunction against the enforcement of all provisions of the 1963 legislation, which included a system for separate registration of state and federal voters. Va.Code Ann. §§ 24—67, 24—67.1 (1964 Supp.). Since registration in Virginia is entrusted to local registrars, the State argues, their joinder was essential in order to effect the relief requested. Williams v. Fanning, 332 U.S. 490, 493—494, 68 S.Ct. 188, 189—190, 92 L.Ed. 95.
While the State is correct in asserting that the complaints were phrased broadly enough to encompass all portions of the 1963 Acts, the District Court was certainly warranted in concluding that the basic aim of the complaints was to secure relief from the certificate of residence requirement. The named defendants were clearly capable of effecting this relief and hence the District Court did not err in denying the motion to dismiss. Ceballos v. Shaughnessy, 352 U.S. 599, 603—604, 77 S.Ct. 545, 547—548, 1 L.Ed.2d 583. Moreover, even accepting the State's broad construction of the complaints, it is apparent that, given the State Board of Elections' power to supervise and to insure 'legality' in the election process (Va.Code Ann. §§ 24—25, 24—26, 24—27 (1950)), the local registrars were not indispensable parties. See Louisiana v. United States, 380 U.S. 145, 151, 85 S.Ct. 817, 821, n. 10.
15
H.R.Rep. No. 1821, 87th Cong., 2d Sess., p. 2.
16
See generally Ogden, The Poll Tax in the South (1958).
17
See, e.g., Hearings before Subcommittee No. 5 of the House Committee on the Judiciary on Amendments to Abolish Tax and Property Qualifications for Electors in Federal Elections, 87th Cong., 2d Sess., 14—22, 48—58 (hereinafter cited as House Hearings); Hearings before a Subcommittee of the Senate Committee on the Judiciary on S.J.Res. 29, 87th Cong., 2d Sess., 33 (hereinafter cited as Senate Hearings).
18
See, e.g., House Hearings 14—15. See generally Ogden, supra, note 16, at 44—52.
19
See Ogden, supra, note 16, at 59—110.
20
See House Hearings 14—22, 26—27, 48—58; Senate Hearings 33.
21
See, e.g., the testimony of Judge William Old before the House Judiciary Committee, defending the poll tax as enabling Virginia 'to avoid the burdensome necessity for annual registration.' House Hearings 81. See also id., at 98—99 (Attorney General Button); 108 Cong.Rec. 4532 (Senator Byrd); 108 Cong.Rec. 4641 (Senator Robertson); R. 73, 76 (Governor Harrison).
22
See 2 Virginia Constitutional Convention (Proceedings and Debates, 1901—1092) 2937—3080.
23
Statement of the Honorable Carter Glass, id., at 3076 3077. This statement was characteristic of the entire debate on the suffrage issue; the only real controversy was whether the provisions eventually adopted were sufficient to accomplish the disenfranchisement of the Negro. See id., at 2937—3080.
| 12
|
380 U.S. 553
85 S.Ct. 1156
14 L.Ed.2d 68
GENERAL MOTORS CORPORATION, Petitioner,v.DISTRICT OF COLUMBIA.
No. 352.
Argued March 10, 1965.
Decided April 27, 1965.
Donald K. Barnes, Detroit, Mich., for petitioner.
Henry E. Wixon, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The District of Columbia Income and Franchise Tax Act of 1947 imposes a tax of 5% on the taxable income of every corporation, foreign or domestic, for the privilege of engaging in any trade or business within the District.1 The Act further provides that '(t)he measure of the franchise tax shall be that portion of the net income of the corporation * * * as is fairly attributable to any trade or business carried on or engaged in within the District and such other net income as is derived from sources within the District.'2 The Act does not attempt to define a specific method whereby the portion of income 'fairly attributable' to the District is to be determined, but authorizes the District Tax Commissioners to prescribe regulations for such determination.3 However, the Commissioners' discretion in devising such regulations is not unfettered, as the Act further commands: 'If the trade or business of any corporation * * * is carried on or engaged in both within and without the District, the net income derived therefrom shall * * * be deemed to be income from sources within and without the District.'4
2
Acting pursuant to the authority delegated to formulate regulations governing the allocation of income, the District Commissioners promulgated regulations which provide: 'Where income for any taxable year is derived from the manufacture and sale or purchase and sale of tangible personal property, the portion thereof to be apportioned to the District shall be such percentage of the total of such income as the District sales made during such taxable year bear to the total sales made everywhere during such taxable year.'5
3
The petitioner, General Motors Corporation (G.M.), seeks review of an en banc decision of the Court of Appeals for the District of Columbia Circuit which approved the application of these regulations in determining the proportion of its total net income allocable to the District for the purpose of computing the franchise tax due.6 General Motors attacks this method of computation on the grounds that it attributes to the District an unreasonably high proportion of its total income and that it is therefore both unauthorized by the relevant sections of the statute, and violative of the Interstate Commerce and Due Process Clauses of the Constitution. We agree that this method of allocation is not authorized by the D.C.Code and therefore reverse the judgment of the Court of Appeals without reaching the constitutional questions raised.
4
General Motors is engaged in the manufacture and sale of motor vehicles, parts, and accessories. A Delaware corporation, the petitioner maintains its principal offices in New York and Detroit. It carries on no manufacturing operations within the District of Columbia, but it makes substantial sales to customers located within the District, chiefly retail automobile dealers. During the years in question, 1957 and 1958, its volume of sales to such customers aggregated $37,185,704 and $32,542,519, respectively.7 Orders for these sales were received and filled outside the District, and the products were shipped to customers from G.M. manufacturing plants in Maryland, Delaware, and Michigan.
5
It is the claim of G.M. that the use of 'sales-factor formula' in the regulations is beyond the authority of the statute, because that formula taxes more of its net income than is 'fairly attributable' to its District of Columbia business, particularly in light of the statutory provision which provides that the net income of a business carried on both within and without the District shall be deemed to be from sources within and without the District. We agree that the Commissioners exceeded their statutory authority by allocating income to the District in disregard of the express restrictions of the law.
6
We are normally content to leave undisturbed decisions by the Court of Appeals for the District of Columbia Circuit concerning the import of legislation governing the affairs of the District. However, at times application of the District Code has an impact not confined to the Potomac's shores, but reaching far beyond. This is such a case, for approval of the District Commissioners' regulations lends sanction to an apportionment formula seriously at variance with those prevailing in the vast majority of States and creates substantial dangers of multiple taxation. Where a decision is of such significance to interstate commerce, and where the result reached involves statutorily unsupportable exertions of administrative power, the traditional reasons underlying our customary refusal to review interpretations of District law do not apply.
7
It is of course clear that the District Code does not expressly prescribe the use of any particular formula for the apportionment of income to sources within and without the District. On the contrary, the Code expressly authorizes the District Commissioners to promulgate regulations for the detailed apportionment of the income of multistate enterprises. But neither does the Code leave the Commissioners wholly unguided in their exercise of this authority. The Commissioners' authority is clearly limited by the provision (§ 47—1580a) which requires that the net income of a corporation doing business inside and outside the District be deemed to arise from sources situated in like fashion. To understand the meaning of this limitation, we need but take the simple example of a corporation which has its manufacturing facilities located wholly in Maryland and sells all of its products in the District of Columbia. Application of the Commissioners' formula would result in the allocation of 100% of the corporation's income to the District. Yet there can be no doubt that the business of the corporation is carried on both within and without the District, viz., manufacture in Maryland and sales in the District. The statute does not say that net income shall be deemed to be derived from sources within and without the District only where the sales of any corporation are made both within and without the District, which is the effect of the Commissioners' regulation. The statute is phrased more broadly and commands apportionment of income to sources within and without the District whenever 'the trade or business of any corporation * * * is carried on or engaged in both within and without the District.' As it is clear that some part of the trade or business of this hypothetical corporation is carried on without the District, the conclusion follows that the Commissioners must 'deem' some part of the income of this corporation to be derived from sources outside the District.
8
It is said that the Commissioners' regulations are within the statutory grant of authority because the language 'the net income derived therefrom' in § 47—1580a must be read to mean the total income of the corporation and not the 'net income arising from activities in the District.' The section must be so read, it is argued, because this reading least restricts the discretion of the Commissioners in devising apportionment formulae, and the traditional canon of broad construction of revenue measures demands that restrictions on the Commissioners' discretion be minimized. Applying this approach to the case at hand it, is argued that the Commissioners fulfilled their statutory obligation in apportioning the total income of G.M. to sources inside and outside the District in accordance with the geographical distribution of the company's sales.
9
Where, as in this case, some portion of a corporation's income is derived from manufacture and sale outside the District, there is no question that the statute requires the Commissioners to allocate that portion to sources outside the District.8 However, it does not follow that the making of that kind of allocation alone relieves the Commissioners of their statutory responsibility to apportion that part of a corporation's income arising from manufacture outside and sale inside the District limits. As to this segment of its income, G.M. is in precisely the same situation as the hypothetical corporation manufacturing wholly in Maryland and selling solely in the District; that is, it is carrying on a business partly within and partly without the District limits. It is not enough under the statute to require apportionment of income derived from District sales only in the case where the taxed corporation has no sales outside the District. The inescapable and determinative fact in both the hypothetical case and the case before us is that the company carries on business both inside and outside the District with respect to the income which it derives from the sales made within the District. Consequently, § 47—1580a requires that some portion of this income be deemed to arise from sources outside the District.
10
The conclusion which we reach by analysis of the plain language of the statute also finds support in the consequences which a contrary view would have for the overall pattern of taxation of income derived from interstate commerce. The great majority of States imposing corporate income taxes apportion the total income of a corporation by application of a three-factor formula which gives equal weight to the geographical distribution of plant, payroll, and sales.9 The use of an apportionment formula based wholly on the sales factor, in the context of general use of the three-factor approach, will ordinarily result in multiple taxation of corporate net income; for the States in which the property and payroll of the corporation are located will allocate to themselves 67% of the corporation's income, whereas the jurisdictions in which the sales are made will allocate 100% of the income to themselves. Conversely, in some cases enterprises will have their payroll and plant located in the sales-factor jurisdictions and make their sales in the three-factor jurisdictions so that only 33% of their incomes will be subject to state taxation. In any case, the sheer inconsistency of the District formula with that generally prevailing may tend to result in the unhealthy fragmentation of enterprise and an uneconomic pattern of plant location, and so presents an added reason why this Court must give proper meaning to the relevant provisions of the District Code.
11
Moreover, the result reached in this case is consistent with the concern which the Court has shown that state taxes imposed on income from interstate commerce be fairly apportioned. In upholding taxes imposed on corporate income by Connecticut and New York and apportioned in accordance with the geographical distribution of a corporation's property, this Court carefully inquired into the reasonableness of the apportionment formulae used.
12
'The profits of the corporation were largely earned by a series of transactions beginning with manufacture in Connecticut and ending with sale in other states. In this it was typical of a large part of the manufacturing business conducted in the state. The Legislature, in attempting to put upon this business its fair share of the burden of taxation, was faced with the impossibility of allocating specifically the profits earned by the processes conducted within its borders. * * * There is * * * nothing in this record to show that the method of apportionment adopted by the state was inherently arbitrary, or that its application to this corporation produced an unreasonable result.' Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 120—121, 41 S.Ct. 45, 47, 65 L.Ed. 165.
13
See also Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm'n, 266 U.S. 271, 45 S.Ct. 82, 69 L.Ed. 282. While the Court has refrained from attempting to define any single appropriate method of apportionment, it has sought to ensure that the methods used display a modicum of reasonable relation to corporate activities within the State. The Court has approved formulae based on the geographical distribution of corporate property and those based on the standard three-factor formula. See, e.g., Underwood Typewriter Co. v. Chamberlain, supra; Butler Bros. v. McColgan, 315 U.S. 501, 62 S.Ct. 701, 86 L.Ed. 991. The standard three-factor formula can be justified as a rough, practical approximation of the distribution of either a corporation's sources of income or the social costs which it generates. By contrast, the geographical distribution of a corporation's sales is, by itself, of dubious significance in indicating the locus of either factor. We of course do not mean to take any position on the constitutionality of a state income tax based on the sales factor alone. For the present purpose, it is sufficient to note that the factors alluded to by this Court in justifying apportionment measures constitutionally challenged in the past lend little support to the use of an exclusively sales-oriented approach. In construing the District Code to prohibit the use of a sales-factor formula, we sacrifice none of the values which our scrutiny of state apportionment measures has sought to protect.
14
In sum, we find that the language of the authorizing statute does not permit the application of an apportionment formula which makes use of the sales factor alone. The conclusion which we draw from examination of the statutory language finds support in the conflict with other taxing jurisdictions which would result from a contrary view. In finds further support in the continuing concern for fair apportionment which this Court has displayed over the years in scrutinizing state taxing statutes. As the District Code confides in the Commissioners the authority to prescribe detailed regulations, it is not for us to make specific prescription, and we limit ourselves to holding that the present regulation is unauthorized by the statute. Accordingly, the judgment of the Court of Appeals for the District of Columbia Circuit is reversed and the case remanded for proceedings consistent with this opinion.
15
Reversed and remanded.
16
Mr. Justice BLACK and Mr. Justice DOUGLAS, agreeing with the Court of Appeals that the tax here is authorized by the controlling statute, would affirm the judgment.
1
D.C.Code 1961, § 47—1571a.
2
D.C.Code 1961, § 47—1580.
3
D.C.Code 1961, § 47—1580a.
4
Ibid.
5
Section 10.2(c) of the District of Columbia Income and Franchise Tax Regulations, relettered by amendment of July 24, 1956.
6
118 U.S.App.D.C. 381, 336 F.2d 885, certiorari granted, 379 U.S. 887, 85 S.Ct. 156, 13 L.Ed.2d 91. An earlier decision (91 Wash.Law Rep. 650) of a panel of the Circuit Court, reversed by the decision here reviewed, had reached a contrary conclusion in affirming the decision of the District of Columbia Tax Court (CCH D.C.Tax Rep. 200—006).
7
Out of total sales of $9,461,855,874 in 1957 and.$7,853,393,381 in 1958.
8
This is not to say that the Commissioners need engage in detailed segmentation of corporate income to source and specific allocation thereof. All that is required is that the formula adopted for general application take account of the geographical spread of the major dimensions of a business.
9
Of the 38 States requiring payment of such taxes, 26 employ varieties of a three-factor formula which takes into account the geographical distribution of a corporation's payroll, property and sales, generally giving equal weight to each factor. Another three use substantially the same formula, replacing the payroll factor with the broader category of manufacturing costs. Yet another three make use of a formula which incorporates the sales and property factors. Only four taxing jurisdictions use formulae based solely on the geographic distribution of corporate sales. See H.R.Rep.No. 1480, 88th Cong., 2d Sess., at 119.
| 78
|
380 U.S. 545
85 S.Ct. 1187
14 L.Ed.2d 62
R. Wright ARMSTRONG, Jr., Petitioner,v.Salvatore E. MANZO et ux.
No. 149.
Argued March 9, 1965.
Decided April 27, 1965.
Ewell Lee Smith, Jr., Dallas, Tex., for petitioner.
William Duncan, El Paso, Tex., for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioner, R. Wright Armstrong, Jr., and his wife were divorced by a Texas court in 1959. Custody of their only child, Molly Page Armstrong, was awarded to Mrs. Armstrong, and the petitioner was granted 'the privilege of visiting with said child at reasonable times, places, and intervals.' The divorce decree ordered the petitioner to pay $50 a month for his daughter's support. In 1960 Mrs. Armstrong married the respondent, Salvatore E. Manzo. Two years later the Manzos filed a petition for adoption in the District Court of El Paso County, Texas, seeking to make Salvatore Manzo the legal father of Molly Page Armstrong.1
2
Texas law provides that an adoption such as this one shall not be permitted without the written consent of the child's natural father, except in certain specified circumstances. One such exceptional circumstance is if the father 'shall have not contributed substantially to the support of such child during (a) period of two (2) years commensurate with his financial ability.' In that event, the written consent of the judge of the juvenile court of the county of the child's residence may be accepted by the adoption court in lieu of the father's consent.2
3
Preliminary to filing the adoption petition, Mrs. Manzo filed an affidavit in the juvenile court, alleging in conclusory terms that the petitioner had 'failed to contribute to the support of' Molly Page Armstrong 'for a period in excess of two years preceding this date.' No notice was given to the petitioner of the filing of this affidavit, although the Manzos well knew his precise whereabouts in Fort Worth, Texas. On the basis of the affidavit, and without, so far as the record shows, a hearing of any kind, the juvenile court judge promptly issued his consent to the adoption. In the adoption petition, filed later the same day, the Manzos alleged that 'consent of the natural father, R. W. Armstrong, Jr., to the adoption herein sought is not necessary upon grounds that the said father has not contributed to the support of said minor child commensurate with his ability to do so for a period in excess of two (2) years, and the Judge of a Juvenile Court of El Paso County, Texas * * * has consented in writing to said adoption.' No notice of any kind was given to the petitioner of the filing or pendency of this adoption petition.
4
An investigator appointed by the court made a detailed written report recommending the adoption, and a few weeks later the adoption decree was entered. The decree provided in accord with Texas law that 'all legal relationship and all rights and duties between such Child and the natural father shall cease and determine, and such Child is hereafter deemed and held to be for every purpose the child of its parent by adoption, as fully as though naturally born to him in lawful wedlock,'3 and further provided that 'the said Molly Page Armstrong shall be known by the Christian and Surname as Molly Page Manzo, from this day forward.'
5
During this entire period the petitioner was not given, and did not have, the slightest inkling of the pendency of these adoption proceedings. On the day the decree was entered, however, Salvatore Manzo wrote to the petitioner's father, advising him that 'I have this date completed court action to adopt Molly Page as my daughter and to change her name to Molly Page Manzo.' The petitioner's father immediately relayed this news to the petitioner, who promptly filed a motion in the District Court of El Paso County, asking that the adoption decree be 'set aside and annulled and a new trial granted,' upon the ground that he had been given no notice of the adoption proceedings.4
6
The court did not vacate the adoption decree, but set a date for hearing on the motion. At that hearing the petitioner introduced evidence, through witnesses and by depositions, in an effort to show that he had not failed to contribute to his daughter's support 'commensurate with his financial ability.'5 At the conclusion of the hearing the court entered an order denying the petitioner's motion and providing that the 'adoption decree entered herein is in all things confirmed.'
7
The petitioner appealed to the appropriate Texas court of civil appeals, upon the ground, among others, that the trial court had erred in not setting aside the adoption decree, because the entry of the decree without notice to the petitioner had deprived him 'of his child without due process of law.' The appellate court affirmed the trial court's judgment,6 and the Supreme Court of Texas refused an application for writ of error.
8
We granted certiorari. 379 U.S. 816, 85 S.Ct. 46, 13 L.Ed.2d 26. The questions before us are whether failure to notify the petitioner of the pendency of the adoption proceedings deprived him of due process of law so as to render the adoption decree constitutionally invalid, and, if so, whether the subsequent hearing on the petitioner's motion to set aside the decree served to cure its constitutional invalidity.
9
In disposing of the first issue, there is no occasion to linger long. It is clear that failure to give the petitioner notice of the pending adoption proceedings violated the most rudimentary demands of due process of law. 'Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.' Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306, at 313, 70 S.Ct. 652, at 656, 94 L.Ed. 865. '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 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. 52.' Id., at 314, 70 S.Ct. at 657. Questions frequently arise as to the adequacy of a particular form of notice in a particular case. See, e.g., Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255; New York v. New York, N.H. & H.R. Co., 344 U.S. 293, 73 S.Ct. 299, 97 L.Ed. 333; Walker v. Hutchinson City, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178; Mullane v. Central Hanover Bank & Tr. Co., supra. But as to the basic requirement of notice itself there can be no doubt, where, as here, the result of the judicial proceeding was permanently to deprive a legitimate parent of all that parenthood implies. Cf. May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221.
10
The Texas Court of Civil Appeals implicitly recognized this constitutional rule, but held, in accord with its understanding of the Texas precedents,7 that whatever constitutional infirmity resulted from the failure to give the petitioner notice had been cured by the hearing subsequently afforded to him upon his motion to set aside the decree. 371 S.W.2d at 412. We cannot agree.
11
Had the petitioner been given the timely notice which the Constitution requires, the Manzos, as the moving parties, would have had the burden of proving their case as against whatever defenses the petitioner might have interposed. See Jones v. Willson, Tex.Civ.App., 285 S.W.2d 877; Ex parte Payne, Tex.Civ.App., 301 S.W.2d 194. It would have been incumbent upon them to show not only that Salvatore Manzo met all the requisits of an adoptive parent under Texas law, but also to prove why the petitioner's consent to the adoption was not required. Had neither side offered any evidence, those who initiated the adoption proceedings could not have prevailed.
12
Instead, the petitioner was faced on his first appearance in the courtroom with the task of overcoming an adverse decree entered by one judge, based upon a finding of nonsupport made by another judge. As the record shows, there was placed upon the petitioner the burden of affirmatively showing that he had contributed to the support of his daughter to the limit of his financial ability over the period involved. The burdens thus placed upon the petitioner were real, not purely theoretical. For 'it is plain that where the burden of proof lies may be decisive of the outcome.' Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. Yet these burdens would not have been imposed upon him had he been given timely notice in accord with the Constitution.
13
A fundamental requirement of due process is 'the opportunity to be heard.' Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783. It is an opportunity which must be granted at a meaningful time and in a meaningful manner. The trial court could have fully accorded this right to the petitioner only by granting his motion to set aside the decree and consider the case anew. Only that would have wiped the slate clean. Only that would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place. His motion should have been granted.
14
For the reasons stated, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
15
It is so ordered.
16
Reversed and remanded.
1
Mrs. Manzo joined the petition in order to manifest her consent to the adoption, and also filed a separate written consent.
2
Vernon's Ann.Civ.Stat., Art. 46a, § 6, provides in pertinent part as follows:
'Except as otherwise provided in this Section, no adoption shall be permitted except with the written consent of the living parents of the child; provided, however, that if a living parent or parents shall voluntarily abandon and desert a child sought to be adopted, for a period of two (2) years, and shall have left such child to the care, custody, control and management of other persons, or if such parent or parents shall have not contributed substantially to the support of such child during such period of two (2) years commensurate with his financial ability, then, in either event, it shall not be necessary to obtain the written consent of the living parent or parents in such default, and in such cases adoption shall be permitted on the written consent of the Judge of the Juvenile Court of the county of such child's residence; or if there be no Juvenile Court, then on the written consent of the Judge of the County Court of the county of such child's residence.' The petitioner does not here question the constitutional validity of the substantive provisions of this statute.
3
Vernon's Ann.Civ.Stat., Art. 46a, § 9.
4
The third paragraph of the petitioner's motion was as follows:
'At the time the above entitled and numbered proceeding came on to be heard and judgment rendered, your Petitioner had never been advised or given notice, actual or constructive, as required by the laws of Texas, that this proceeding was to be heard or that it was even pending or of the judgment herein until after the rendition of the judgment, nor was any attempt made to notify Petitioner in any way of this proceeding although his address and whereabouts were well known to the parties, in fact the parties to this proceeding deliberately and wrongfully withheld all notice from Petitioner for the expressed purpose of denying him any opportunity to appear, contest and present his defenses to this proceeding; and that Petitioner was prevented from appearing and presenting his defenses not by his own fault or negligence but rather by the deliberate and wrongful acts of the parties to this proceeding.'
The prayer of the motion was as follows:
'Wherefore, Petitioner prays that the judgment and decree entered in this proceeding be in all things vacated, set aside and annulled and a new trial granted.'
5
See note 2, supra.
6
371 S.W.2d 407.
7
See Lee v. Purvin, Tex.Civ.App., 285 S.W.2d 405; Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269, 151 A.L.R. 1217; DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687; Johnston v. Chapman, Tex.Civ.App., 279 S.W.2d 597.
| 34
|
380 U.S. 624
85 S.Ct. 1207
14 L.Ed.2d 116
PARAGON JEWEL COAL COMPANY, Inc., Petitioner,v.COMMISSIONER OF INTERNAL REVENUE. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Robert Lee MERRITT et al.
Nos. 134, 237.
Argued March 8, 1965.
Decided April 28, 1965.
Frederick Bernays Wiener, Washington, D.C., for petitioner in No. 134.
Philip B. Heymann, Washington, D.C., for respondent in No. 134 and the petitioner in No. 237.
John Y. Merrell, Washington, D.C. for respondents in No. 237.
Mr. Justice CLARK delivered the opinion of the Court.
1
The issue in these consolidated tax cases is whether the lessee1 of coal lands is entitled to percentage depletion on all the gross income derived from the sale of the coal mined from its leases, or whether contract miners who do the actual mining acquired a depletable interest within the meaning of §§ 611 and 613(b)(4) of the Internal Revenue Code of 1954 to the extent they were paid by the lessee for mining and delivering coal to it.
2
The mining contractors, respondents in No. 237, claimed an allocable portion of the allowance for the years 1954 through 1956, while the lessee, petitioner in No. 134, claimed the right to the entire depletion deduction for 1955 through 1957. In each case the deduction was denied the taxpayer. However, the Commissioner now takes the position that the lessee is entitled to the entire allowance;2 the Tax Court so held, 39 T.C. 257, but the Court of Appeals agreed with the contractors. 330 F.2d 161. We granted certiorari in No. 134, 379 U.S. 812, 85 S.Ct. 43, 13 L.Ed.2d 26, and in No. 237, 379 U.S. 886, 85 S.Ct. 157, 13 L.Ed.2d 91, and consolidated them for argument. We have concluded that the Tax Court was correct and reverse the judgment of the Court of Appeals.
3
The parties agree that the principles of our opinion in Parsons v. Smith, 359 U.S. 215, 79 S.Ct. 656, 3 L.Ed.2d 747 (1959), are controlling here. There we held that the deduction is allowed in recognition of the fact that mineral deposits are wasting assets and that the deduction is intended as compensation to the owner for the part used in production; that there may be more than one depletable interest in the same coal deposit, but that the right to an allocable portion of the allowance depends on the ownership of an economic interest in the coal in place since the statute makes the deduction available only to the owner of a capital interest in such deposit; and, finally, that the legal form of such capital interest is unimportant so long as it constitutes a right with regard to the coal in place.
4
The problem arises in applying those principles 'according to the peculiar conditions in each case.'3 The mining contractors contend that they made a capital investment in the coal in place because of the nature and extent of their expenditures in preparation for and in the performance of oral agreements which they claim granted them the right to mine certain designated areas to exhaustion. They contend that they could only look to the extraction and sale of coal for a return of their investment, and thus that the test of Parsons v. Smith, supra, is satisfied.
5
Paragon, on the other hand, says that Congress never intended for contractors mining coal to have a depletable interest as evidenced by statutory enactments adopted subsequent to the tax years involved in Parsons v. Smith, supra; that in the case of a lease the lessor of coal lands is no longer granted a deduction for depletion but is relegated to capital gains treatment only.4 And, finally, that the expenditures made by the contractors were only for equipment which they depreciated and could not constitute an investment in the coal in place as required under Parsons v. Smith, supra.
6
The Commissioner of Internal Revenue takes the position that only a taxpayer with a legally enforceable right to share in the value of a mineral deposit has a depletable capital or economic interest in that deposit and the contract miners in this case had no such interest in the unmined coal.
7
THE FACTS.
8
Paragon took an assignment of written leases on the coal in and under certain lands which obligated it to pay annual minimum cash royalties, tonnage royalties, land taxes, and to mine all or 85% of the minable coal in the tracts. It made substantial investments in preparation for processing and marketing the coal, including construction of a tipple, a power line, a railroad siding with four spurs and the purchase of processing equipment. It also built a road from the tipple which circled the mountain close to the outcrop line of coal. This road was used to truck the coal from the contractors' mines to Paragon's tipple.
9
Paragon made oral agreements with various individuals and firms to mine the coal in allocated areas under its leases. They were to mine the coal at their own expense and deliver it to Paragon's tipple at a fixed fee per ton for mining, less 2 1/2% for rejects. It was understood that this fee might vary from time to time—and it did so—depending somewhat on the general trend of the market price for the coal over extended periods and to some extent on labor costs. However, any changes in the fixed fee were always prospective, the contractors being notified several days in advance of any change so that they always knew the amount they would get for the mining of the coal upon delivery. After delivery to Paragon's tipple the contractor had no further control over the coal, and no responsibility for its sale or in fixing its price. The fixed fee was earned and payable upon delivery and the contractors did not even know the price at which Paragon sold.
10
The contractors agreed to buy power at a fixed rate per ton from Paragon's line or put in their own diesel engine generator and compressors. A certain amount per ton was also paid by the contractors for engineering services inside the mine. An engineer provided by Paragon was used to map out or show each of the contractors the particular direction his mine was to take, the locations of adjacent mines, etc. The single engineer was utilized for all of the mines to ensure that they would not run into each other and also so that no minable coal would be rendered unrecoverable by haphazard mining methods. Periodically, the enginer would extend his projections of the mine in order to keep it within the contractor's original location.
11
Because of the nature of the coal deposits, it was necessary to use the drift-mining method5 which requires the opening of two parallel tunnels, one for ventilation and the other for working space and removal of coal. In this type operation the roof is supported by leaving pillars of coal in place and erecting wooden supports about every 18 inches.6 However, as the miners withdraw from a mine where the coal seam has been exhausted, they take out the wooden supports and also remove the coal pillars, thus recovering the last bit of minable coal. Because of the method used it often takes six to eight weeks to develop a mine to the point where it can be operated profitably.
12
The nature of the coal deposits here involved was such that the miners often encountered 'a sandstone roll' which is an outcrop of rock which 'squeezes' out the coal. When one of these situations is encountered the miners must move large amounts of rock to reach the coal seam. During this period, of course, they are receiving no money because they are not delivering merchantable coal to Paragon's tipple.7 At other times, water might accumulate which would have to be pumped out before work could resume. Again, the contract miners received nothing for this clearing operation.
13
After the coal was removed it was placed in the contractor's bins at the entrance to the mine and was later trucked over a connecting roadway built by the contractor to the adjacent road of Paragon and then taken to the latter's tipple. Paragon took all of the merchantable coal mined. If its facilities were full at the moment the contractor would fill his own bins and then shut down his mine. The record shows no deliveries by the contractors to anyone other than Paragon.
14
Although there was nothing said at the time of the oral contracts regarding who was to receive the depletion, the Tax Court found that Paragon expected to receive that deduction and had fixed its per-ton fee for mining with this in mind. The contracts were also silent regarding termination and were apparently for an indefinite period. However, numerous contractors quit mining, and some sold their equipment, buildings, tracks, etc., to others. Under the agreements, those ceasing to operate could not remove the buildings, but could remove all other equipment. It was anticipated that the contractors would continue mining in their allocated areas as long as it was profitable and so long as proper mining methods were used and the coal met Paragon's standards. However, the contractors were under no obligation to mine any specific amount of coal and were not specifically given the right to mine any particular area to exhaustion.
15
The contractors paid nothing for the privilege of mining the coal; they acquired no title to the coal either in place or after it was mined; they paid none of the royalty or land taxes required by Paragon's leases; they claim no sublease, no co-adventure, no partnership. Their sole claim to any interest in the coal in place is based on their investment in equipment, connecting roadways, buildings and the costs of opening the mine, and, in some instances, on their installation of track inside the mine to remove the coal. They admit, however, that all of this was removable, save the buildings and the connecting roadways, neither of which represented any appreciable expendiure. All of their expenditures were deducted either as direct costs, development costs, depreciation of equipment or capital assets.
16
On the basis of these facts the Tax Court concluded as a matter of law that the contractors did not have a depletable interest under their contracts. The Court of Appeals accepted all of the Tax Court's findings but held that the latter erred in its conclusions. It reversed on the basis that the contractors were 'performing Paragon's obligation under its leases and this constituted ample consideration' together with their 'continuing right to produce the coal and to be paid therefor at a price which was closely related to the market price' to give them 'an economic interest in the mineral (bringing) them within the rationale of Parsons v. Smith * * *.' At 163 of 330 F.2d. We believe that the Court of Appeals was in error in so doing.
17
STATUTORY PROVISIONS FOR COAL DEPLETION.
18
This Court has often said that the purpose of the allowance for depletion is to compensate the owner of wasting mineral assets for the part exhausted in production, so that when the minerals are gone, the owner's capital and his capital assets remain unimpaired. United States v. Cannelton Sewer Pipe Co., 364 U.S. 76, 81, 80 S.Ct. 1581, 1584, 4 L.Ed.2d 1581 (1960). Percentage depletion first came into the tax structure in 1926 and has been consistently regarded as a matter of legislative grace.8 We, therefore, must look to the Code provisions and regulations in effect during the years involved to determine whether these contract coal miners acquired a depletable interest in the coal in place.
19
Section 611(a) provides for 'a reasonable allowance for depletion * * * according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under regulations prescribed by the Secretary * * *.' The pertinent regulation states:
20
'(1) Annual depletion deductions are allowed only to the owner of an economic interest in mineral deposits or standing timber. An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital. But a person who has no capital investment in the mineral deposit or standing timber does not possess an economic interest merely because through a contractual relation he possess(es) a mere economic or pecuniary advantage derived from production. For example, an agreement between the owner of an economic interest and another entitling the latter to purchase or process the product upon production or entitling the latter to compensation for extraction or cutting does not convey a depletable economic interest. * * *' Treas.Reg. § 1.611 1(b)(1).
21
Section 611(b) estabishes an equitable apportionment of such allowance between the lessor and the lessee nin the case of a lease. However, § 611(b) must now be read in light of § 631(c)9 which provides that an owner who disposes of coal under any form of contract in which he retains an economic interest shall not receive percentage depletion, but instead must take capital gains treatment for the royalties received under that contract. The result of this in the typical lessor-lessee situation is that the lessee is entitled to the entire depletion allowance on the gross income from the property. Respondent contract miners make no contention that they are lessees or the sublessees of Paragon.
22
However, they claim that they are entitled to a portion of the percentage depletion because they have somehow acquired an economic interest in the coal in place. This test was first enunciated in Palmer v. Bender, 287 U.S. 551, 557, 53 S.Ct. 225, 226, 77 L.Ed. 489 (1933), and has since become the touchstone of decisions determining the eligibility of a party to share in the depletion allowance. The contract miners contend that their investments of time and money in developing these mines bring them within the meaning of our cases. We believe that Parsons v. Smith, supra, completely settles this question against them.
23
In Parsons, the Court enumerated seven factors to be considered in determining whether the coal-mining contracts there involved gave the contract miners any capital investment or economic interest in the coal in place. They were:
24
'(1) that (the contract miners') investments were in their equipment, all of which was movable—not in the coal in place; (2) that their investments in equipment were recoverable through depreciation—not depletion; (3) that the contracts were completely terminable without cause on short notice; (4) that the landowners did not agree to surrender and did not actually surrender to (the contract miners) any capital interest in the coal in place; (5) that the coal at all times, even after it was mined, belonged entirely to the landowners, and that (the contract miners) could not sell or keep any of it but were required to deliver all that they mined to the landowners; (6) that (the contract miners) were not to have any part of the proceeds of the sale of the coal, but, on the contrary, they were to be paid a fixed sum for each ton mined and delivered * * *; and (7) that (the contract miners), thus, agreed to look only to the landowners for all sums to become due them under their contracts.' At 225 of 359 U.S., at 663 of 79 S.Ct.
25
The Tax Court found all of these factors present in this case and ruled therefore that Parsons controlled.
26
The Court of Appeals agreed with the contractors' position and held, contrary to the Tax Court, that the contracts under which they mined the coal were not terminable at the will of Paragon but gave the contractors 'a continuing right to produce the coal and to be paid therefor at a price which was closely related to the market price.' It based its decision on the fact that the operators made 'large expenditures of time and money in preparing their respective sites for mining' and that '(i)t would be inequitable indeed to hold that Paragon might * * * then take the benefit of the operators' efforts at will and without cause.' At 163 of 330 F.2d. We regret that we are unable to agree.
27
In Parsons the contract was expressly terminable on short notice; here no specific right to terminate was mentioned in the agreement between the parties. However, as the Court of Appeals noted, 'the contracts did not fix upon the operators an obligation to mine to exhaustion.' In fact, many of them quit at any time they chose. We are unable to say that it is any more inequitable to allow Paragon to terminate the contracts at will than it is to allow the contractors to terminate work and thereby impose upon Paragon the obligation to get other people to work the mine or forfeit its right under the leases.
28
In any event, the right to mine even to exhaustion, without more, does not constitute an economic interest under Parsons, but is 'a mere economic advantage derived from production, through a contractual relation to the owner, by one who has no capital investment in the mineral deposit.' Helvering v. Bankline Oil Co., 303 U.S. 362, 367, 58 S.Ct. 616, 618, 82 L.Ed. 897 (1938).
29
The court below also indicated that it disagreed with the conclusion of the Tax Court that Paragon could set the price at any level it chose under the agreements. It stated that the contractors were 'to be paid therefor at a price which was closely related to the market price.' The conclusion of the Tax Court was that while the fee varied somewhat with labor costs, 'there (was) no evidence that the amount paid by Paragon was directly related either to the price it was getting for the coal or to the sales price of a particular contractor's coal, and the amount was apparently changeable at the will of Paragon.' (Emphasis supplied.) 39 T.C., at 282. After an examination of the entire record, we can only conclude that Paragon at all times retained the right to change its fixed fee at will, and after delivery to the tipple, the contractors could only rely on Paragon's personal covenant to pay the posted price. This is insufficient. As we said in Palmer v. Bender, 287 U.S. 551, 557, 53 S.Ct. 225, 226 (1933), the deduction is allowed only to one who 'has acquired, by investment, any interest in the oil in place, and secures, by any form of legal relationship, income derived from the extraction of the oil, to which he must look for a return of his capital.' (Emphasis supplied.) Here, Paragon was bound to pay the posted fee regardless of the condition of the market at the time of the particular delivery and thus the contract miners did not look to the sale of the coal for a return of their investment, but looked solely to Paragon to abide by its covenant.
30
This construction of the Act as to coal depletion is buttressed by the language of the Treasury Regulations which, by example, specifically provide that 'an agreement between the owner of an economic interest and another entitling the latter to * * * compensation for extration* * * does not convey a depletable economic interest.' This language was taken almost verbatim from Helvering v. Bankline Oil Co., 303 U.S. 362, 367, 58 S.Ct. 616, 618 (1938), and incorporated in the first regulations under the Internal Revenue Code of 1939, and since that time there have been no major changes in the economic-interest-versus-economic-advantage paragraph. Compare Treas.Reg. 103, § 19.23(m)—1; Treas.Reg. 111, § 29.23(m)—1; and Treas.Reg. 118, § 39.23(m)—1(a)—(b), with Treas.Reg. § 1.611 1(b)(1). This Regulation has survived through successive amendments of the Internal Revenue Code and therefore is entitled to great weight.
31
Further, we believe that additional support is given to our construction by subsequent statutory enactments. As noted above, an owner who by contract disposes of the coal in place while retaining an economic interest is relegated to capital gains treatment of the royalties received. However, exemptive language in § 631(c)10 excludes an owner who is also a co-adventurer, partner or principal in the mining of coal, thus permitting such an owner to secure percentage depletion. 'Owner' is defined for purpose of this subsection as 'any person who owns an economic interest in coal in place, including a sublessor.' (Emphasis supplied.) While Paragon is certainly an owner of an economic interest in the coal, it is also a principal in the mining of coal and thus comes within the exemption and is expressly allowed depletion. The contract miners do not claim, nor will the record support a contention, that they are a 'co-adventurer, partner, or principal.' In contrast to the language of § 631(c), it is noted that in treating with timber in § 631(b) an 'owner' is allowed capital gains instead of depletion. In this instance 'owner' is defined to be 'any person who owns an interest in such timber, including a sublessor and a holder of a contract to cut timber.' (Emphasis supplied.) This last phrase as to contractors is not included in § 631(c) thus indicating that as to coal, 'owner' does not include contract coal miners. Clearly the Congress knew what language to use when it wished to give a contractor a tax allowance. It gave holders of contracts to cut timber capital gains treatment in § 631(b) but did not so provide for contract coal miners in § 631(c).
32
Nor does the opinion in Commissioner of Internal Revenue v. Southwest Exploration Co., 350 U.S. 308, 76 S.Ct. 395, 100 L.Ed. 347 (1956), undercut our conclusion. There the State of California required that the State's offshore oil might be extracted only from wells drilled on filled lands or slant drilled from upland drill sites to the submerged oil deposits. Pursuant to that statute Southwest entered into an agreement with upland owners whereby in the event it was awarded a lease by the State it was given the right to use the surface of the upland as a base for its derrick and drilling operation in reaching the leased oil premises. In consideration of this use Southwest assigned to the upland owners, 24 1/2% of the net profits derived from the oil recovered. This agreement was the sine qua non of Southwest's securing a lease to drill the submerged land from the State. We held that Southwest's right to drill being expressly conditioned by law upon the agreements with the upland owners made the latter essential parties to the lease from the State and was a sufficient investment by them in the obtaining of the lease to give them an economic interest in the oil in place, which investment was recoverable solely through the extraction of the oil to which they had to look for the return of their investment. Here we have no such statute; the contractors had no part whatever in the lease but were wholly disassociated from it; no fixed percentage of the net income from Paragon's lease was assigned to the contractors; and the latter did not look to the coal but to Paragon for their payment.11
33
For these reasons the judgment is reversed. It is so ordered.
34
Judgments reversed.
35
Mr. Justice GOLDBERG, with whom Mr. Justice BLACK joins, dissenting.
36
I respectfully dissent. I cannot accept the Court's formalistic view of the depletion provisions of the Internal Revenue Code of 1954, §§ 611, 613, and 614, which, as applied to this case, would give the entire depletion allowance to Paragon, the lessee of the coal-bearing land. I cannot agree with the Court's decision that a lessee of mineral lands, whose total investment may consist merely of a promise to pay a small royalty for minerals produced, is entitled to the full allowance for depletion and that no share of this allowance is to be apportioned to a mining company with substantial investment in digging and maintaining a particular coal mine. I believe that the issue in this case is basically a simple one: For purposes of the depletion allowance under the Internal Revenue Code, should the mine operators here be viewed as independent contractors selling their services to Paragon, the lessee, or should they be viewed as entrepreneurs participating in a type of joint venture to which Paragon contributes its lease of the land and certain necessary equipment and for which the mine operators provide the other investment necessary to open and run the mines? A look through the formal legal arrangements to the underlying economic realities makes clear that the position of the miners is far closer to that of the entrepreneur participating in a joint venture than to that of a seller or services. For this reason I would hold that the miners have 'an economic interest in the * * * (mineral), in place, which is depleted by production,' Palmer v. Bender, 287 U.S. 551, 557, 53 S.Ct. 225, 227, 77 L.Ed. 489, and they are therefore entitled to a fairly proportioned share of the depletion allowance.
37
The factual situation presented by this case is far different from that considered by the Court in Parsons v. Smith, 359 U.S. 215, 79 S.Ct. 656, 3 L.Ed.2d 747. Parsons held that persons contracting with the owners of coal-bearing land to strip-mine the land were not entitled to an allowance for depletion. Parsons involved comparatively little investment in any particular mines. The coal was obtained through a strip-mining process which consists of removing the earth which lies over the coal, and then removing the coal uncovered. The entire investment of petitioners in Parsons took the form of equipment, such as mechanical shovels, trucks and bulldozers, which 'was movable and usable elsewhere in strip mining and * * * for other purposes.' Parsons v. Smith, supra, at 219, 79 S.Ct. at 660. In fact, one of petitioners in Parsons was primarily a roadbuilding firm. It insisted upon a contract terminable by either party on 10 days' notice since, "* * * if an opportunity opened up, (it) wanted to go back to road building," id., at 216, 79 S.Ct. at 658, for which its shovels and bulldozers were primarily designed. The contracts of both petitioners in Parsons were made terminable on very short notice. Thus the strippers in Parsons were clearly independent contractors hired to do the stripping, not entrepreneurs with a fixed investment in a particular mine.
38
On the other hand, the mines here involved were not strip mines but deep underground mines. The mine operators in the instant case had to use a drift, rather than a strip, method of mining. Unlike a strip-mine contractor, who can begin full production immediately upon removal of the overburden with one employee and a mechanical shovel, the driftmine operators here had to employ a number of miners and spend many months opening the underground mines. The operations of the miners here included cutting shafts, building a railroad spur, opening ventilation tunnels, shoring the roof of the mine, removing rock and unmarketable coal, and developing entries, cross sections, rooms and air courses, etc. Normally six to eight weeks was required before any marketable coal was reached and several months before the mine reached the production1 stage. Moreover, even after the production stage was reached, the miners had to face and prepare pillars of coal for support, and frequently they spent many weeks excavating worthless 'rolls' of nonmarketable rock or removing excess water from the mines. All this activity required considerable capital investment.
39
Kyva and Standard, the two partnerships of mine operators involved here, state without challenge that as of the end of 1956, they had invested in machinery, $33,263.81 and $26,901.30, respectively. Their expenses during their first year of operation were, respectively, $76,036.64 and.$73,214.02. This expense was primarily capital expense representing investment in the mine, making it ready for exploitation of the coal in place. Unlike Parsons where the bulldozers, trucks and shovels were movable and primarily designed for road building and other work, the major part of the mine operators' capital investment here consisted of labor costs and was usable only in this particular underground mine operation. The mine operators could look for a return of their investment only to sales of the coal which they were to mine. Moreover, the Court of Appeals held that Paragon's contracts with the operators were not terminable at will or upon short notice, and that 'the operators had a continuing right to produce the coal and to be paid therefor at a price which was closely related to the market price.' 330 F.2d 161, 163. Under these circumstances I believe it undeniable that the operators invested considerable time, labor, and equipment in the coal in place. In order to extract the mineral, they pooled their resources, funds, and energies with Paragon, which supplied its base interest and made other investment necessary for processing and marketing the coal. I would hold, with the Court of Appeals, that the operators as well as Paragon fit within the rule enunciated in Palmer v. Bender, supra, and followed in other cases,2 and that they had an economic interest in the mineral in place which entitled them to an allowance for depletion.
40
The Court tries to assimilate this case to Parsons by stating that Paragon could have terminated the interest of the operators in the coal at any time and that the rators had no right to mine their coal veins to exhaustion. The actual facts, however, reveal that Paragon has never taken steps, nor given the slightest information that it might take steps, to terminate anyone's contract. As a matter of practical fact the operators could count on mining the coal vein so long as coal remained and selling that coal to Paragon at a rate which varied slightly with the market price of coal. Additionally, the Court of Appeals found that the operators had 'a right to mine to exhaustion,' and a 'continuing right to produce the coal and to be paid therefor at a price which was closely related to the market price.' 330 F.2d, at 163. Whether or not the actions of the parties would produce these legal results is, of course, a question of state law. And, it is a clear rule of long standing that this Court, in the absence of exceptional circumstances, accepts the determinations of the Court of Appeals, the members of which are closer to the local scene than we, on questions of local law. General Box Co. v. United States, 351 U.S. 159, 165, 76 S.Ct. 728, 732, 100 L.Ed. 1055; Allegheny County v. Frank Mashuda Co., 360 U.S. 185, 191, 79 S.Ct. 1060, 1064, 3 L.Ed.2d 1163; Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 534, 69 S.Ct. 1233, 1235, 93 L.Ed. 1520. Moreover, in view of the operators' considerable investment in the mines and their substantial reliance on being able to work those mines, I should be most surprised were state courts, contrary to the view of the Court of Appeals, to allow Paragon to terminate the contracts at will or to lower drastically the price it paid for the coal deliberately in order to drive particular operators out of business. Thus this case differs from Parsons not only because here the operators had a substantial fixed and unmovable investment in each particular mine, but also because here the operators had a right to mine the coal until it was exhausted in order to attempt to recover their investment and make a profit. In Parsons, as I have noted, it was the strip operator itself which insisted upon terminability so that it would be free to move its equipment to more profitable and unrelated opportunities.
41
The Court, in reaching its result, relies upon Treasury Regulations § 1.611—1(b)(1) and Helvering v. Bankline Oil Co., 303 U.S. 362, 58 S.Ct. 616, 82 L.Ed. 897. With all deference I do not believe that either the regulation or Bankline Oil bears significantly upon the issue here presented. The regulation in its entirety makes clear that '(a)n economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place * * * and secures, by any form of legal relationship, income derived from the extraction of the mineral * * *. But a person who has no capital investment in the mineral deposit * * * does not possess an economic interest merely because through a contractual relation he possess(es) a mere economic or pecuniary advantage derived from production.'3 The regulation thus indicates that the question to be asked is whether the mine operators have a significant investment in the coal in place. I think it clear from the facts I have recited that their investment has given them an economic interest in the coal. Bankline Oil held that a processor of natural gas who received the gas at the mouth of the well and "* * * had no enforceable rights whatsoever under its contracts prior to the time the wet gas was actually placed in its pipe line," 'had no capital investment in the mineral deposit,' for he 'had no interest in the gas in place.' 303 U.S., at 368, 58 S.Ct. at 618. The facts that 'the taxpayer's capital investment was in equipment facilitating delivery of the gas produced rather than in equipment for production of gas, * * * that its function was not production of gas but the processing of gas,' G.C.M. 22730, 1941—1 Cum.Bull. 214, 220, and that the taxpayer had no enforcible right to receive any gas from the well,4 all adequately distinguish Bankline Oil from the case here before us.
42
Further, I find this case virtually indistinguishable from Commissioner of Internal Revenue v. Southwest Exploration Co., 350 U.S. 308, 76 S.Ct. 395, 100 L.Ed. 347. In Southwest Exploration, owners of uplands next to offshore oil drilling sites allowed drillers to use their land as a base for offshore drilling operations in return for 24 1/2% of the net profits derived from the oil recovered. Though no oil lay under the owners' land, under California law offshore oil could be extracted only from filled lands or by slant drilling from upland drill sites. The Court held, because the owners of the upland sites had contributed the use of their land, necessary for the extraction of the oil, in return for a share in the net profits from the production of oil, that they had 'an economic interest which entitle(d) * * * (them) to depletion on the income thus received.' 350 U.S., at 317, 76 S.Ct., at 400. The coal mine operators in this case made as significant an investment in the mine as did the upland owners in Southwest Exploration. Their contribution was as necessary for the extraction of the coal as was the land for the extraction of the oil. They were as dependent upon the coal for the recoupment of their investment as were the landowners upon the oil. Though the mine operators had little control over who bought the coal, there is no indication that the landowners had any control over who bought the oil. And the mine operators made a substantial investment in the mine—not an investment in machinery which could be moved from place to place or mine to mine, but a fixed investment of time and labor in opening and developing the mine. The coal mine operators could look only to a sale of the coal for the return of their investment.
43
The Court also attempts to draw support from §§ 631(b) and (c) of the Internal Revenue Code of 1954 as showing a congressional intent not to allow mine operators to share in the depletion allowance. These sections, however, have nothing to do with the issue of apportioning the depletion allowance here under consideration. They state only that the holders of certain passive kinds of income interest, such as royalty interests in coal like that of the lessor in this case—interests quite unlike those owned either by Paragon or the mine operators here—will not receive any allowance for depletion but instead will receive capital gains treatment for their income. See S.Rep.No. 781, 82d Cong., 1st Sess., 43, U.S.Code Congressional and Administrative Service, p. 1969. Section 631(b), a rather lengthy subsection, provides capital gains treatment for the income of certain passive owners of timber interests and states in part that '(f)or purposes of this subsection, the term 'owner' means any person who owns an interest in such timber, including a sublessor and a holder of a contract to cut timber.' This definition, by its very terms, applies only to § 631(b), a section with no bearing on the question at issue here. Section 631(c), also a lengthy subsection, provides for capital gains treatment for income arising from coal royalties. To make certain that only passive holders of royalties received capital gains treatment and that holders of working interests did not receive capital gains treatment but instead received a depletion allowance, Congress specifically excluded holders of working interests from the coverage of § 631(c). Congress stated that certain owners of royalty interests would receive capital gains treatment, but stated that '(t)his subsection shall not apply to income realized by any owner as a co-adventurer, partner, or principal in the mining of such coal, and the word 'owner' means any person who owns an economic interest in coal in place, including a sublessor.' This definition is meant to exclude from the coverage of § 631(c) not only mine operators, but also lessees such as Paragon, whose income does not arise from passive royalties. In my view, this sentence adequately does the job Congress intended for it to do, for the income of both mine operators and lessees falls within the scope of 'income realized by any owner as a co-adventurer, partners, or principal in the mining of such coal.' See S.Rep.No. 781, supra, at 43.5
44
Even were I to assume that the definitions of 'owner' in §§ 631(b) and (c) have a more direct bearing upon §§ 611, 613, and 614, the sections dealing with the depletion allowance, §§ 631(b) and (c) would not show that Congress did not intend to grant contract miners for coal any depletion allowance. '(A) holder of a contract to cut timber' may well have been included specifically in § 631(b)'s definition because Congress wished to make crystal clear that all holders of contracts to cut timber were to receive capital gains treatment for their income. See H.R.Rep. No. 1337, 83d Cong., 2d Sess., 59. Congress may not have included a similar provision in § 631(c) because it did not believe that the strip miner, whose function is similar to that of the holder of a contract to cut timber, should be brought within the coverage of § 631(c); or Congress may have felt that since lessees such as Paragon were not included within the coverage of § 631(c), holders of contracts to mine coal should similarly not have their income treated as a capital gain; or the issue of according capital gains treatment to the income of contract mine operators might not have been before the Committee when § 631 was being drafted. If §§ 631(b) and (c) have any relevance to this case, it must be in the fact that § 631(c) defines an owner as a person 'who owns an economic interest in coal in place' (emphasis added), thus indicating a specific congressional intent that formal legal ownership of the mineral should not be controlling.
45
Finally, it is argued that the operators were able to recover their investments through depreciation and to allow them depletion as well would be to permit a double recovery of their costs. This argument overlooks the fact that Paragon too is able to recover every cent of its investment through depreciation and amortization allowances in addition to depletion. The only investment made by Paragon which might be considered different in kind from that of the mine operators is Paragon's promise to pay a royalty to its lessors of between 30 and 40 cents per ton of coal.6 This royalty was fully deductible from Paragon's income. Despite the fact that to allow a lessee to share in the depletion allowance is to allow a double deduction, Congress affirmatively stated its intent to allow lessees of land to share in this allowance. See Internal Revenue Code of 1954, § 611(b)(1). Perhaps allowing both a depletion allowance and depreciation is inequitable, but this is a congressional decision which is not for us to question.
46
I conclude that the depletion allowance should be properly apportioned between the lessee and the coal mine operators. The operators were not employees or independent contractors hired to perform services. Unlike a man hired to mow a lawn, or shovel snow, or strip-mine coal, they made a substantial investment in opening and developing each individual mine and could look only to proceeds of the sale of coal extracted for a return of that investment. Under these circumstances I believe that the operators meet the test of Palmer v. Bender, supra, which undisputedly applies here, for they have 'an economic interest in the * * * (coal), in place, which is depleted by production.' 287 U.S. at 557, 53 S.Ct. at 227, 77 L.Ed. 489. While, clearly, the 'phrase 'economic interest' is not to be taken as embracing a mere economic advantage derived from production,' Helvering v. Bankline Oil Co., 303 U.S. 362, 367, 58 S.Ct. 616, 618, 82 L.Ed. 897, the operators here, unlike the strip miners in Parsons, do not merely derive an economic advantage through production; they also have a substantial capital investment in the mineral in place. To refuse to recognize this merely because the operators do not hold legal title to the coal is, in my view, a blind following of form, which I cannot accept.7 To hold that the operators here are, in fact, like sellers of services is equally unrealistic. I would accept the sound view of the Court of Appeals—the members of which come from local mining areas—that the operators are substantial investors in the coal, and, in accordance with what I believe to be the intent of Congress, I would require that they be permitted a share of the allowance for depletion.
1
Paragon Jewel Coal Co. was actually an assignee or sublessee of the coal lands in this particular case. However, this is a factual matter without significance here, and for purposes of convenience it will be referred to as the lessee throughout the opinion.
2
The Commissioner took a neutral position in the Tax Court, but contended before the Court of Appeals, as he does here, that the lessee is entitled to the depletion deduction on all the gross income derived from the sale of coal mined from its leases.
3
I.R.C.1954. § 611, 26 U.S.C. § 611 (1958 ed.).
4
I.R.C. 1954, § 631(c), 26 U.S.C. § 631(c) (1958 ed.).
5
Drift mining is an underground mining operation in which a horizontal coal seam is reached by clearing away a part of the mountainside with a bulldozer. Two openings are made into the coal seam. One is an entry and the other is an air course used to ventilate the mine. Coal is removed as the drift mine is driven into the mountain following the seam of coal.
6
This shoring up prevents cave-ins and like all safety requirements, both state and federal, was done at the miners' expense.
7
Paragon on at least one occasion shared in the cost incident to going through a sandstone roll of unusual proportions, but that was apparently not the practice.
8
Parsons v. Smith, 359 U.S. 215, and cases cited in n. 5, at 219, 79 S.Ct. at 659, 3 L.Ed.2d 747.
9
For the text of § 631(c) see n. 10, infra.
10
Section 631(c) for the pertinent period read:
'In the case of the disposal of coal (including lignite), held for more than 6 months before such disposal, by the owner thereof under any form of contract by virtue of which such owner retains an economic interest in such coal, the difference between the amount realized from the disposal of such coal and the adjusted depletion basis thereof plus the deductions disallowed for the taxable year under section 272 shall be considered as though it were a gain or loss, as the case may be, on the sale of such coal. Such owner shall not be entitled to the allowance for percentage depletion provided in section 613 with respect to such coal. This subsection shall not apply to income realized by any owner as a co-adventurer, partner, or principal in the mining of such coal, and the word 'owner means any person who owns an economic interest in coal in place, including a sublessor. The date of disposal of such coal shall be deemed to be the date such coal is mined. In determining the gross income, the adjusted gross income, or the taxable income of the lessee, the deductions allowable with respect to rents and royalties shall be determined without regard to the provisions of this subsection. This subsection shall have no application, for purposes of applying subchapter G, relating to corporations used to avoid income tax on shareholders (including the determinations of the amount of the deductions under section 535(b)(6) or section 545(b)(5)).' (Emphasis supplied.)
It is interesting to note that when § 631(c) was amended in 1964 to include domestic iron ore Congress did not change the language of this section to also include those mining mining such ore or coal under a contract since it had made provision for such contractors in § 631(b) dealing with timber.
11
We said in Commissioner of Internal Revenue v. Southwest Exploration Co., supra, 350 U.S., at 317, 76 S.Ct., at 400: 'We decide only that where, in the circumstances of this case, a party essential to the drilling for an extraction of oil has made an indispensable contribution of the use of real property adjacent to the oil deposits in return for a share in the net profits from the production of oil, that party has an economic interest which entitles him to depletion on the income thus received.'
1
For the applicable definition of production stage, see Treas.Reg. § 1.616—2(b).
2
See, e.g., Burton-Sutton Oil Co. v. Commissioner of Internal Revenue, 328 U.S. 25, 32, 66 S.Ct. 861, 865, 90 L.Ed. 1062; Kirby Petroleum Co. v. Commissioner of Internal Revenue, 326 U.S. 599, 603, 66 S.Ct. 409, 411, 90 L.Ed. 343; Helvering v. O'Donnell, 303 U.S. 370, 371, 58 S.Ct. 619, 620, 82 L.Ed. 903; Thomas v. Perkins, 301 U.S. 655, 661, 57 S.Ct. 911, 913, 81 L.Ed. 1324.
3
Treas.Reg. § 1.611—1(b)(1) reads as follows:
'Annual depletion deductions are allowed only to the owner of an economic interest in mineral deposits or standing timber. An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital. But a person who has no capital investment in the mineral deposit or standing timber does not possess an economic interest merely because through a contractual relation he possess(es) a mere economic or pecuniary advantage derived from production. For example, an agreement between the owner of an economic interest and another entitling the latter to purchase or process the product upon production or entitling the latter to compensation for extraction or cutting does not convey a depletable economic interest. Further, depletion deductions with respect to an economic interest of a corporation are allowed to the corporation and not to its shareholders.'
4
The Court of Appeals found that the mine operators here had an enforcible right to mine the coal to exhaustion. See discussion, supra, at 642.
5
The Court points out that the mine operators do not claim to be a 'co-adventurer, partner, or principal' in the mining of the coal. Ante, at 637. The mine operators, however, do claim to be engaged in a type of joint venture with Paragon in mining the coal. It is understandable that they do not use the exact language of § 631(c), for that section has no bearing upon the question here at issue: whether they own an economic interest in the coal in place.
6
Paragon paid the mine operators between $4 and $5 per ton for the coal.
7
Compare this Court's rejection of the argument that only a legal interest can constitute a 'substantial interest' in a corporation in United States v. Boston & M.R. Co., 380 U.S. 157, 85 S.Ct. 868.
| 1112
|
380 U.S. 592
85 S.Ct. 1220.
14 L.Ed.2d 95
FEDERAL TRADE COMMISSION, Petitioner,v.CONSOLIDATED FOODS CORPORATION.
No. 422.
Argued March 10 and 11, 1965.
Decided April 28, 1965.
Archibald Cox, Sol. Gen., for petitioner.
Daniel Walker, Chicago, Ill., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The question presented involves an important construction and application of § 7 of the Clayton Act,1 38 Stat. 731, as amended, 15 U.S.C. § 18. Consolidated Foods Corp.—which owns food processing plants and a network of wholesale and retail food stores—acquired Gentry, Inc., in 1951. Gentry manufactures principally dehydrated onion and garlic. The Federal Trade Commission held that the acquisition violated § 7 because it gave respondent the advantage of a mixed threat and lure of reciprocal buying in its competition for business and 'the power to foreclose competition from a substantial share of the markets for dehydrated onion and garlic.' It concluded, in other words, that the effect of the acquisition 'may be substantially to lessen competition' within the meaning of § 7, and it ordered divestiture and gave other relief. —- F.T.C. —-, —-. The Court of Appeals, relying mainly on 10 years of post-acquisition experience, held that the Commission had failed to show a probability that the acquisition would substantially lessen competition. 329 F.2d 623. The case is here on certiorari. 379 U.S. 912, 85 S.Ct. 259, 13 L.Ed.2d 183.
2
We hold at the outset that the 'reciprocity' made possible by such an acquisition is one of the congeries of anticompetitive practices at which the antitrust laws are aimed. The practice results in 'an irrelevant and alien factor,' —- F.T.C., p. —-, intruding into the choice among competing products, creating at the least 'a priority on the business at equal prices.' International Salt Co. v. United States, 332 U.S. 392, 396—397, 68 S.Ct. 12, 15, 92 L.Ed. 20; Northern Pac. R. Co. v. United States, 356 U.S. 1, 3, 6, 12, 78 S.Ct. 514, 517, 2 L.Ed.2d 545. Reciprocal trading may ensue not from bludgeoning or coercion but from more subtle arrangements. A threatened withdrawal of orders if products of an affiliate cease being bought, as well as a conditioning of future purchases on the receipt of orders for products of that affiliate is an anti-competitive practice.2 Section 7 of the Clayton Act is concerned 'with probabilities, not certainties.' Brown Shoe Co. v. United States, 370 U.S. 294, 323, 82 S.Ct. 1502, 8 L.Ed.2d 510; United States v. Philadelphia Nat. Bank, 374 U.S. 321, 362, 83 S.Ct. 1715, 1740, 10 L.Ed.2d 915. Reciprocity in trading as a result of an acquisition violates § 7, if the probability of a lessening of competition is shown. We turn then to that, the principal, aspect of the present case.
3
Consolidated is a substantial purchaser of the products of food processors who in turn purchase dehydrated onion and garlic for use in preparing and packaging their food. Gentry, which as noted is principally engaged in the manufacture of dehydrated onion and garlic, had in 1950, immediately prior to its acquisition by Consolidated, about 32% of the total sales of the dehydrated garlic and onion industry and, together with its principal competitor, Basic Vegetable Products, Inc., accounted for almost 90% of the total industry sales. The remaining 10% was divided between two other firms. By 1958 the total industry output of both products had doubled. Gentry's share rising to 35% and the combined share of Gentry and Basic remaining at about 90%.3
4
After the acquisition Consolidated (though later disclaiming adherence to any policy of reciprocity) did undertake to assist Gentry in selling. An official of Consolidated wrote as follows to its distributing divisions:
5
'Oftentimes, it is a great advantage to know when you are calling on a prospect, whether or not that prospect is a supplier of someone within your own organization. Everyone believes in reciprocity providing all things are equal.
6
'Attached is a list of prospects for our Gentry products. We would like to have you indicate on the list whether or not you are purchasing any of your supplies from them. If so, indicate whether your purchases are relatively large, small or insignificant. * * *
7
'Will you please refer the list to the proper party in your organization. * * * If you have any special suggestions, as to how you could be helpful in properly presenting Gentry to any of those listed, it will be appreciated.'
8
Food processors who sold to Consolidated stated they would give their onion and garlic business to Gentry for reciprocity reasons if it could meet the price and quality of its competitors' products. Typical is a letter from Armour and Co.:
9
'I can assure you that it is the desire of our people to reciprocate and cooperate with you in any way we can in line with good business practices, and I am sure that if our quality obstacles can be overcome, your quotations will receive favorable consideration. We value our relationship with you very highly and are disappointed that we have been unable lately to reciprocate for your fine cooperation on Armour Pantry Shelf Meats.' Some suppliers responded and gave reciprocal orders. Some who first gave generous orders later reduced them or abandoned the practice. It is impossible to recreate the precise anatomy of the market arrangements following the acquisition, though respondent offers a factual brief seeking to prove that 'reciprocity' either failed or was not a major factor in the post-acquisition history.
10
The Commission found, however, that 'merely as a result of its connection with Consolidated, and without any action on the latter's part, Gentry would have an unfair advantage over competitors enabling it to make sales that otherwise might not have been made.'
And the Commission concluded:
11
'With two firms accounting for better than 85% of both product lines for eleven successive years, maximum concentration short of monopoly has already been achieved. If it is desirable to prevent a trend toward oligopoly it is a fortiori desirable to remove, so far as possible, obstacles to the creation of genuinely competitive conditions in an oligopolistic industry. Respondent's reciprocal buying power, obtained through acquisition of Gentry, is just such an anticompetitive obstacle.
12
'This conclusion is buttressed by the peculiar nature of the dehydrated onion and garlic industry. In the first place, the record shows that Gentry's leading competitor, Basic Vegetable Products, Inc., has been the innovator and leader in the field. Gentry has recently made technical strides narrowing, although probably not closing, the gap between them. There is also evidence that the third firm, Puccinelli Packing Co., is not only much smaller—commanding only about 10% of each product market—but is considered by many buyers to offer an inferior product and inferior service.' —- F.T.C., p. —-.
13
The Court of Appeals, on the other hand, gave post-acquisition evidence almost conclusive weight. It pointed out that, while Gentry's share of the dehydrated onion market increased by some 7%, its share of the dehydrated garlic market decreased 12%. 329 F.2d, p. 626. It also relied on apparently unsuccessful attempts at reciprocal buying. Ibid. The Court of Appeals concluded that 'Probability can best be gauged by what the past has taught.' Id., p. 627.
14
The Court of Appeals was not in error in considering the post-acquisition evidence in this case. See United States v. E. I. Du Pont De Nemours & Co., 353 U.S. 586, 597, 77 S.Ct. 872, 879, 1 L.Ed.2d 1057, et seq., 602 et seq. But we think it gave too much weight to it. Cf. United States v. Continental Can Co., 378 U.S. 441, 463, 84 S.Ct. 1738, 1750, 12 L.Ed.2d 953. No group acquiring a company with reciprocal buying opportunities is entitled to a 'free trial' period. To give it such would be to distort the scheme of § 7. The 'mere possibility' of the prohibited restraint is not enough. (United States v. E. I. Du Pont De Nemours & Co., supra, 353 U.S. p. 598, 77 S.Ct. p. 880.) Probability of the proscribed evil is required, as we have noted. If the post-acquisition evidence were given conclusive weight or allowed to override all probabilities, then acquisitions would go forward willy-nilly, the parties biding their time until reciprocity was allowed fully to bloom. It is, of course, true that post-acquisition conduct may amount to a violation of § 7 even though there is no evidence to establish probability in limine. See United States v. E. I. Du Pont De Nemours & Co., supra, 353 U.S. pp. 597—598, 77 S.Ct. pp. 879—880. But the force of § 7 is still in probabilities, not in what later transpired. That must necessarily be the case, for once the two companies are united no one knows what the fate of the acquired company and its competitors would have been but for the merger.
15
Moreover, the post-acquisition evidence here tends to confirm, rather than cast doubt upon, the probable anti-competitive effect which the Commission found the merger would have. The Commission found that Basic's product was superior to Gentry's—as Gentry's president freely and repeatedly admitted. Yet Gentry, in a rapidly expanding market, was able to increase its share of onion sales by 7% and to hold its losses in garlic to a 12% decrease. Thus the Commission was surely on safe ground in reaching the following conclusion:
16
'If reciprocal buying creates for Gentry a protected market, which others cannot penetrate despite superiority of price, quality, or service, competition is lessened whether or not Gentry can expand its market share. It is for this reason that we reject respondent's argument that the decline in its share of the garlic market proves the ineffectiveness of reciprocity. We do not know that its share would not have fallen still farther, had it not been for the influence of reciprocal buying. This loss of sales fails to refute the likelihood that Consolidated's reciprocity power, which it has shown a willingness to exploit to the full, will not immunize a substantial segment of the garlic market from normal quality, price, and service competition.' —- F.T.C., p. —-.4
17
But the Court of Appeals ignored the Commission's findings as to the inferiority of Gentry's product; indeed at one point it even supplanted those findings with its own conclusion that Gentry's onions were superior:
18
'Consolidated's Gentry division in the years following the acquisition, during which time it improved its onion processing equipment to eliminate a problem arising from the presence of wood splinters and achieved a product of higher quality than that of its competitors, increased its share of the rapidly expanding market by only some 7% with respect to dehydrated onion * * *.' 329 F.2d, p. 626. (Emphasis supplied.) But the Commission's contrary conclusion was unquestionably based on substantial evidence, as the following excerpt from the testimony of Gentry's president particularly indicates:
19
'Q. You mentioned the fact, Dr. Prater, that Gentry had a reputation of being second to Basic in quality. Was one of the factors involved in the quality competition the wood splinter problem?
20
'A. Yes, the wood splinter problem has been a problem in the dehydration industry for many years. Basic exploited this extensively, and solved it by improvements in production techniques in the use, or by the use of better methods, and by using, instead of wood trays, trays of aluminum plastic glass fibers. We met this competition partially by the improvement of our production techniques and installation of continuous conveyor dehydrators.'
21
We do not go so far as to say that any acquisition, no matter how small, violates § 7 if there is a probability of reciprocal buying. Some situations may amount only to de minimis. But where, as here, the acquisition is of a company that commands a substantial share of a market, a finding of probability of reciprocal buying by the Commission, whose expertise the Congress trusts, should be honored, if there is substantial evidence to support it.
22
The evidence is in our view plainly substantial. Reciprocity was tried over and again and it sometimes worked. The industry structure was peculiar, Basic being the leader with Gentry closing the gap. Moreover there is evidence, as the Commission found, 'that many buyers have determined that their source of supply may best be protected by a policy of buying from two suppliers.' When reciprocal buying—or the inducement of it—is added, the Commission observed:
23
'Buyers are likely to lean toward Basic on the ground of quality, but, in seeking a second, protective supply channel, to purchase from Gentry in the belief that this will further their sales to Consolidated. Not only does Gentry thus obtain sales that might otherwise go to Basic or Puccinelli, but the two-firm oligopoly structure of the industry is strengthened and solidified and new entry by others is discouraged.' —- F.T.C., p. —-.
24
We conclude that there is substantial evidence to sustain that conclusion and that the order of the Commission should not have been denied enforcement. The judgment of the Court of Appeals is accordingly reversed.
25
Reversed.
26
Mr. Justice HARLAN (concurring in the judgment).
27
Had the Commission's complaint been grounded on § 5 of the Federal Trade Commission Act, it seems manifest to me that no case would have been made out on this record. But given the ambulatory use of § 7 of the Clayton Act sanctioned by the Court in United States v. E. I. Du Pont De Nemours & Co., 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057, I concur in the judgment.
28
I do so, however, upon the premises stated in the concurring opinion of my Brother STEWART, post, this page, but with one reservation. To the extent that anything in his opinion might be taken as drawing on evidence upon which the Commission indicated no reliance, I could not subscribe to that approach. This Court must review administrative findings as they are made by the agency concerned, and if the evidence will not support the findings and theory upon which the agency acted, an affirmance of the agency's order cannot properly rest upon a reassessment of the record by us. See Securities & Exchange Comm'n v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995; National Labor Relations Board v. Metropolitan Life Ins. Co., 380 U.S., pp. 438, 443—444, 85 S.Ct. pp. 1061, 1064—1065. However, since both sides agree that 'conglomerate' mergers and reciprocal buying are within the purview of § 7, I think the Commission's order is supportable, though barely so, within the confines of the evidence upon which it apparently relied.
29
Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510, forecloses any contention that the 'market affected' was not substantial enough to bring § 7 into play. In this Court Consolidated has pitched its case on the proposition that it used to the full whatever power it acquired as a result of the merger to bring about reciprocal buying. The Commission found only seven instances of successful efforts by Consolidated to pressure suppliers to buy from Gentry. If in fact these few instances had represented the full measure of Consolidated's ability to induce purchasing from Gentry, they would for me be insufficient to carry the day for the Commission's order, and I would vote to affirm. While I cannot subscribe to the undiscriminating use made in the Court's opinion of the buying statistics, I think there was enough in these seven instances—for example, the Phillips Packing Company, J. J. Gielow & Sons, Illinois Meat Company, and Morgan Packing Company episodes—for the Commission justifiably to find that Consolidated had not used all the reciprocal buying leverage it could muster; the Commission, therefore, could reasonably conclude that the probable effect of the Gentry acquisition would be substantially to lessen competition in the relevant market.
30
On this basis I concur in the result reached by the Court.
31
Mr. Justice STEWART (concurring in the judgment).
32
The Federal Trade Commission, in invalidating a merger between Consolidated Foods and Gentry, Inc., has espoused a novel theory to bring the facts of this case within the scope of § 7 of the Clayton Act. Its resolution of the issue has been much debated and much disputed.1 The Court of Appeals has disagreed with the Commission's appraisal of the facts in this case and with its conclusions concerning the § 7 implications of reciprocity. Other cases are being held awaiting clarification from this Court.2 We must decide the applicability of the Act to the facts of this case, but we should also provide guidance to the Commission and to the courts which will have to grapple in the future with the potentialities of reciprocal buying in § 7 cases. While I agree with the result that the Court has reached, I am persuaded to file this separate statement of my views regarding the issues involved.
33
Clearly the opportunity for reciprocity is not alone enough to invalidate a merger under § 7. The Clayton Act was not passed to outlaw diversification. Yet large scale diversity of industrial interests almost always presents the possibility of some reciprocal relationships. Often the purpose of diversification is to acquire companies whose present management can benefit from the technical skills and sales acumen of the acquiring corporation. Without more, § 7 of the Clayton Act does not prohibit mergers whose sole effect is to introduce into an arena of 'soft' competition the experience and skills of a more aggressive organization.
34
It obviously requires more than this kind of bare potential for reciprocal buying to bring a merger within the ban of § 7. Before a merger may be properly outlawed under § 7 on the basis solely of reciprocal buying potentials, the law requires a more closely textured economic analysis. The Court summarizes the 'substantial' evidence before the Commission as follows:
35
'Reciprocity was tried over and again and it sometimes worked. The industry structure was peculiar, Basic being the leader with Gentry closing the gap.
36
Moreover there is evidence, as the Commission found, 'that many buyers have determined that their source of supply may best be protected by a policy of buying from two suppliers.' When reciprocal buying—or the inducement of it—is added, the Commission observed: '* * * the two-firm oligopoly structure of the industry is strengthened and solidified and new entry by others is discouraged."
37
I cannot agree that these elements, singly or together, are sufficient to make unlawful the merger negotiated by Consolidated and Gentry. Certainly the mere effort at reciprocity cannot be the basis for finding the probability of a significant alteration in the market structure. Section 7 does not punish intent. No matter how bent on reciprocity Consolidated might have been, if its activities would not have the requisite probable impact on competition, it cannot be held to have violated this law. And, I think, it is not enough to say that the merger is illegal merely because the reciprocity attempts 'sometimes worked.' If the opportunity for reciprocity itself is not a violation of the Act when the merger occurs, then some standard must be established for determining how effective reciprocity must be before the merger is subject to invalidation. Nor do I think that illegality of this merger can be rested upon the fact that '(t)he industry structure was peculiar, Basic being the leader with Gentry closing the gap.' There is evidence that in the years following 1951, when the merger took place, increased emphasis was placed on solving technical problems which had prevented some processors from relying on dehydrated, rather than raw, onions. The 1950's were a time of flux for the industry. Basic was sometimes the innovator of technological change leading to increased sales; sometimes Gentry had the upper hand. It is possible that this shift to more intensive competition was connected with the merger. Faced with a new competitive situation, Basic may have determined to solve quality control problems which had long been dormant. Indeed, the evidence seems to show that, after the acquisition, the industry reflected the salutary qualities normally associated with free competition. Overall, both Basic and Gentry were furnishing a better product at the end of this period than at the beginning. It is true that the industry had oligopolistic features, but there is no evidence to indicate that barriers to entry were particularly severe.3 And Gentry, while it was 'closing the gap' with regard to dehydrated onions, was falling even farther behind Basic in the sales of dehydrated garlic. Finally, I can attach no significance to the fact that processors, seeking a second source of supply, normally relied on Gentry rather than Puccinelli. That fact can rest on so many alternative hypotheses that it is persuasive as to none.4
38
The touchstone of § 7 is the probability that competition will be lessened. But before a court takes the drastic step of ordering divestiture, the evidence must be clear that such a probability exists. The Act does not require that there be a certainty of anticompetitive effect. But that does not mean that the courts or the Commission can rely on slipshod information confusingly presented and ambiguous in its implications. The law does not require proof that competition certainly will be lessened by the merger. But the record should be clear and convincing that the requisite probability is present.
39
To determine that probability, the courts and the Commission should rely on the best information available, whether it is an examination of the market structure before the merger has taken place, or facts concerning the changes in the market after the merger has been consummated. For that reason, I differ with the Court in its assessment of the weight to be accorded post-acquisition evidence. That evidence is the best evidence available to determine whether the merger will distort market forces in the dehydrated onion and garlic industry. The Court of Appeals, in my view, was not wrong because it 'gave too much weight' to the post-acquisition evidence. It erred because of the gloss it placed on the statistics and testimony adduced before the hearing examiner and the Commission.
40
The Court discounts the value of post-acquisition evidence on the ground that the companies are not entitled to a 'free trial' period after the merger. That characterization, however, misstates the case. No one gives the company a 'free trial' by assessing, in light of what actually happened, what could only be hypotheses at the time the merger occurred. Without post-acquisition evidence, the trier is faced with a blank slate and untested speculation. The merger in this case was achieved in 1951, yet the Commission did not issue a cease-and-desist order until six years later. We may be sure that the Commission relied on post-acquisition factors in issuing its order; there is no reason why we should rely on those factors less in assessing the propriety of the Commission's action. Indeed, if anyone had a 'free trial' period to check the anticompetitive potential of the merger, it was not the respondent but the Commission.
41
The record in this case is sorely incomplete, and a reviewing court is given little guidance in determining why this merger should be voided, if reciprocity-creating mergers are not per se invalid. Yet our responsibility to the Commission—to respect its findings where there is evidence to support them—requires close scrutiny of the record before its conclusions are upset. I think the record contains just enough to support invalidation of the merger, but because of evidence not referred to in the Court's opinion.
42
The food processing industry is composed basically of two classes of manufacturers. One class, which includes such processors as Armour and Swift, has built significant brand names commanding consumer acceptance of their products. For such companies, exposure at the retail market is assured. Consolidated Foods, as the wholesaler, is sufficiently dependent on such processors that its economic power over this class is minimal. It cannot readily strong-arm Armour into purchasing dehydrated onions from Gentry at the pain of losing Consolidated's favor. A second class incorporates the smaller processors in the industry. Many of these sell their product to Consolidated in bulk, for packaging under house labels of Consolidated divisions. Many of the products which these processors package under their own labels are not so widely known; they rely on the wholesaler to persuade supermarkets to try them on their counters. These processors are susceptible to the subtle pressures of reciprocity.
43
My reading of the record persuades me that most of the processors in this second class shifted their buying from Basic to Gentry, though the extent of that shift varied from company to company. It is true that testimony from the purchasing agents of many of these companies attributed the shift to other causes. However, the pattern of movement in this class, when contrasted to the lack of a pattern among the major processors, seems to me sufficient to support the Commission's conclusion that these shifts were in response to the influence of reciprocity, whether express or 'tacitly accommodative.' The pattern is relevant because the independent processors are substantial purchasers in the dehydrated onion and garlic market. Furthermore, this pattern confirms what was assumed by the Commission: that Consolidated has the power to influence the purchases by a substantial segment of its suppliers. Some of the independent processors have failed, and others have merged with large processors leading to greater concentration in the food processing industry. The Commission could, therefore, have fairly concluded that the inhibitory effects of reciprocity in this situation marked this merger with illegality.
44
For these reasons I concur in the judgment of the Court.
1
Section 7 reads in pertinent part as follows:
'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 substantially to lessen competition, or to tend to create a monopoly.' 15 U.S.C. § 18.
2
Edwards, Conglomerate Bigness as a Source of Power, in Nat. Bur. Eco. Research, Business Concentration and Price Policy (1955), 331, p. 342:
'Where large and powerful concerns encounter each other as seller and buyer, there is sometimes a reciprocal exchange of favors, by which each of the great enterprises strengthens the other.
'The most common form of such a relationship is probably reciprocal buying. A reciprocal buying arrangement may arise either through formal contract or through an informal understanding that may be scarcely distinguishable from a mere policy of cultivating the good will of a large customer. The essence of the arrangement is the willingness of each company to buy from the other, conditioned upon the expectation that the other company will make reciprocal purchases. The goods bought are typically dissimilar in kind, and in the usual case could be obtained from other sources on terms which, aside from the reciprocal purchases, would be no less advantageous. Where such a relationship is well established, it prevents the competitors of each company from selling to the other company, and affords to each company whatever increase of size and strength can be derived from an assured place as supplier to the other.'
And see Stocking and Mueller, Business Reciprocity and the Size of Firms, 30 J.Bus.U.Chi. 73, 75—77 (1957); Ammer, Realistic Reciprocity, 40 Harv.Bus.Rev.No. 1, 116 (1962); Hausman, Reciprocal Dealing and the Antitrust Laws, 77 Harv.L.Rev. 873 (1964).
For a discussion of the conglomerate acquisition (the type involved in the present case) see Report, Federal Trade Commission on The Merger Movement (A Summary Report, 1948), p. 59 et seq.
3
As stated by the Court of Appeals:
'Immediately prior to the Consolidated-Gentry merger, Basic accounted for 60% and Gentry 28% of dehydrated onion sales. By 1958, these figures were 57% and 35%, respectively. In dehydrated garlic sales, Basic had 36% of the market in 1950 and 50% in 1958, while Gentry's shares were 51% and 39% for the same years.' 329 F.2d, p. 625.
4
The last three sentences were a footnote to the first sentence.
1
See Hausman, Reciprocal Dealing and the Antitrust Laws, 77 Harv.L.Rev. 873; Krash, The Legality of Reciprocity under Section 7 of the Clayton Act, 9 Antitrust Bull. 93 (1964); Ammer, Realistic Reciprocity, 40 Harv.Bus.Rev. No. 1, 116 (1962).
2
See, e.g., United States v. General Dynamics Corp. (D.C.S.D.N.Y.); United States v. General Motors Corp. (D.C.N.D.Ill.); Trabon Engineering Corp. v. Eaton Mfg. Co. (D.C.N.D.Ohio).
3
Indeed, by the time of the Commission's decision an additional firm, Gilroy Foods, Inc., had entered this market.
4
For example, customers of Gentry often chose Basic for their alternative supplier, probably because of doubt that Puccinelli could satisfy their needs if the occasion arose. There is no reason to assume that customers of Basic chose Gentry as a backstop for motives any more nefarious.
| 78
|
380 U.S. 650
85 S.Ct. 1192.
14 L.Ed.2d 133
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES, Petitioner,v.ASSOCIATION FOR the BENEFIT OF NON-CONTRACT EMPLOYEES. UNITED AIR LINES, INC., Petitioner, v. NATIONAL MEDIATION BOARD et al. NATIONAL MEDIATION BOARD et al., Petitioners, v. ASSOCIATION FOR the BENEFIT OF NON-CONTRACT EMPLOYEES.
Nos. 138, 139, 369.
Argued March 4, 1965.
Decided April 28, 1965.
Archibald Cox, Sol. Gen., for respondents in No. 139 and petitioners in No. 369.
[Syllabus from pages 650-652 intentionally omitted]
James L. Highsaw, Jr., Washington, D.C., for petitioner in No. 138.
Stuart Bernstein, Chicago, Ill., for petitioner in No. 139.
Alex L. Arguello, San Francisco, Cal., for respondent in Nos. 138 and 369.
Mr. Justice CLARK delivered the opinion of the Court.
1
These consolidated cases involve claims of United Air Lines (United) and the Association for the Benefit of Non-Contract Employees of United (the Association), attacking the form of ballot that the Board intends to use in a representation election among United's employees under § 2, Ninth of the Railway Labor Act, 44 Stat. 577, as amended, 45 U.S.C. § 152, Ninth (1958 ed.).1 United also contends that the National Mediation Board (Board) should hold a hearing under the same section, with its participation, to determine the appropriate craft or class in which the election should be held. Before the Board the conflicting unions Brotherhood of Railway and Steamship Clerks (Brotherhood) and International Association of Machinists (Machinists)—agreed that the appropriate craft or class in which the election should be held was 'clerical, office, stores, fleet and passenger service employees'; over the objection of United the Board ordered an election in this unit to determine which union, if either, would be its bargaining representative. United then filed suit against the Board raising the questions it presses here. This case was dismissed and is here, after affirmance by the Court of Appeals, as No. 139. After this dismissal the Association filed suit against the Board, the Brotherhood being permitted to intervene, and raised substantially the same claims. The District Court enjoined the Board from conducting an election with a ballot that did not permit an employee to cast a vote against collective bargaining representation; the other issues were remanded to the Board for further consideration. 218 F.Supp. 114. The Court of Appeals affirmed these cases by a divided court and they are here as Nos. 138 and 369. 117 U.S.App.D.C. 387, 330 F.2d 853. Judge Wright, dissenting, thought the District Court was without jurisdiction to enjoin the Board from conducting a representation election, citing Switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943). We granted certiorari in all three of the cases. 379 U.S. 814, 85 S.Ct. 44, 13 L.Ed.2d 27.
2
We hold that the Board satisfied its statutory duty to investigate the dispute; that United is not entitled to be a party to proceedings by which the Board determines the scope of the appropriate craft or class; and that the Board's choice of ballot for its future elections does not exceed its statutory authority and is therefore not open to judicial review.
1. THE FACTS
3
In January 1947, after lengthy hearings in which United and other airlines participated at the request of the Board, it was determined that the 'clerical, office, stores, fleet and passenger service' grouping of employees constituted an appropriate craft or class, within the meaning of the Act, for collective bargaining purposes. Case No. R—1706, N.M.B. Determinations of Craft or Class 423 (1948). All of the parties here, save the Association, participated in this public hearing. Since that time they have participated in other cases involving the same questions decided in R—1706, but, with some exceptions, the Board has continued through the years to hold elections in that craft or class.
4
In August 1962 the Brotherhood filed with the Board an application under § 2, Ninth to investigate a representation dispute among employees of United. In its original application the Brotherhood proposed to exclude those stores and fleet service personnel then represented by the Machinists. After the Board had advised United and the Machinists of the Brotherhood's application each informed the Board that in its opinion the application should be dismissed because it did not conform to what the Board had found to constitute a craft or class in Case No. R—1706, supra. Alternatively, United requested that if dismissal was not in order the Board should hold hearings to determine the proper craft or class in which the election should be held. Upon receiving notice of this opposition the Brotherhood amended its application to include the full craft or class approved in R—1706. The Machinists then agreed that this was the appropriate unit in which to conduct the election.
5
The Board concluded that a dispute existed requiring an election and scheduled one for January 1963. It proposed to use its standard form of ballot which provided for the printing of the names of the labor organizations—in this case, the Brotherhood and the Machinists—with a box below each name for the employee to check the representative preferred. A third space was provided in which the employee could write in the name of any other organization or individual he wished to represent him. There was not a place on the ballot in which the employee could vote specifically for 'no union.'
6
The Board, on December 19, 1962, directed that a list of the employees involved be supplied by United not later than January 14, 1963. On January 11 United advised that the request was premature and requested a hearing as to the scope of the unit involved in the Brotherhood's amended application. It outlined in some detail the past practices of the Board in dealing with such requests and attacked the continued suitability of the R—1706 determination, asking that the case be re-opened and that the group be divided into three separate crafts or classes. On January 17 the Board denied this request. It pointed out that United on September 7, 1962, had objected to the craft proposed in the Brotherhood's original application on the sole ground that it did not conform to R—1706; that the Brotherhood had then amended its request to conform with R—1706; that United had been notified of this change on October 8, 1962; that on October 24 the Board had requested United to furnish the number of employees in the craft or class as amended and that it had furnished this information on November 2, stating that there were 12,451 as of a given date; and that it had failed to furnish the names of the employees. The Board then commented that 'the carrier is not a party to this representation dispute'; that 'no request for a review of * * * Case No. R—1706, et al. has been received from either organization party to NMB Case No. 3590' (the pending application of the Brotherhood); and that United's request was 'not timely made, since the Board, on December 19, 1962, found that a representation dispute existed among the employees in this craft or class, and has authorized an election.' United requested reconsideration of this decision, but without success.
7
Meanwhile, on January 18, 1963, when United advised the Board that it was 'willing to allow a ballot box election on Company property provided the ballot follows the form used by the National Labor Relations Board,' i.e., the ballot 'would have a space for the employee to vote against representation as well as space for the employee to vote for representation' by the Brotherhood or the Machinists. (Emphasis in the original.) The Board replied that its form of ballot had been used since 1934 and that it saw no reason to depart from it. Thereafter United advised that it would furnish the list of employees by February 11, but on that date the list was refused and action was begun the next day against the Board in the District Court for the District of Columbia. This case was later dismissed, as we have noted.
8
It appears that while the election was being delayed the Association was being organized among United's employees. By March 1963 it claimed 6,400 members, about 50% of the total number of United's employees. It sought, like United, to be heard in a craft or class proceeding and to have the ballot amended. It stated, however, that it did not seek recognition as a bargaining representative, and it did not want its name on the ballot. It intended to dissolve after the election. The Board denied the applications.
9
After United's case was dismissed, the Association filed a similar suit in the same court, seeking substantially the same relief. The Brotherhood was permitted to intervene, and it filed a separate appeal from that of the Board after the court had disposed of the case as we have already stated.
10
After we granted certiorari, the Board adopted an amended form of ballot on which there appears the following directly above the names of the unions seeking election as representative:
11
'INSTRUCTIONS FOR VOTING
12
'No employee is required to vote. If less than a majority of the employees cast valid ballots, no representative will be certified.'
13
In effect, this amended ballot stated on its face what has been the practice of the Board in these elections since its inception. The Board has announced its intention to use this form of ballot in future representation elections, including any that may be held in this particular matter.
14
2. THE PURPOSES OF THE ACT AND THE BOARD'S FUNCTION.
15
The major objective of the Railway Labor Act, 44 Stat. 577, as amended, 45 U.S.C. §§ 151—188 (1958 ed.), was 'the avoidance of industrial strife, by conference between the authorized representatives of employer and employee.' Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 547, 57 S.Ct. 592, 599, 81 L.Ed. 789 (1937). Section 2, Ninth set up the machinery for the selection of the representatives of employees. It authorized the National Mediation Board, upon request, to investigate disputes over representation; to 'designate' those who were affected; to use a secret ballot or any other appropriate means of ascertaining the choice of employees; to establish rules governing elections and to certify the representatives so chosen to represent the employees in negotiations. Upon the issuance of this certificate the employer, under the Act, is required to 'treat' with the representative certified to it by the Board. As we said in Virginian R. Co.: 'The statute does not undertake to compel agreement between the employer and employees, but it does command those preliminary steps without which no agreement can be reached. It at least requires the employer to meet and confer with the authorized representative of its employees, to listen to their complaints, to make reasonable effort to compose differences—in short, to enter into a negotiation for the settlement of labor disputes such as is contemplated by section 2, First.' Id., at 548, 57 S.Ct. at 599.
16
In Switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95 (1943), the petitioner sued for the cancellation of a Board representation certificate. The Court held that the Act precluded review of the Board's certification of a collective bargaining representative under § 2, Ninth. The case involved a question of statutory construction, i.e., whether the Act permitted the division of crafts or classes of a single carrier into smaller units for collective bargaining purposes. The Court refused to consider the merits of the claim, holding that it was for the Board, not the courts, finally to resolve such questions. 'The Act in § 2, Fourth,' the Court said, 'writes into law the 'right' of the 'majority of any craft or class of employees' to 'determine who shall be the representative of the craft or class for the purposes of this Act.' That 'right' is protected by § 2, Ninth which gives the Mediation Board the power to resolve controversies concerning it and as an incident thereto to determine what is the appropriate craft or class in which the election should be held.' Id., at 300 301, 64 S.Ct. at 97. The Court goes on to note that Congress decided on the method which might be employed to protect this 'right'; and that where Congress 'has not expressly authorized judicial review,' id., at 301, 64 S.Ct. at 97, 'this Court has often refused to furnish one even where questions of law might be involved,' id., at 303, 64 S.Ct. at 98. The Court's conclusion was that 'the intent seems plain—the dispute was to reach its last terminal point when the administrative finding was made. There was to be no dragging out of the controversy into other tribunals of law.' Id., at 305, 64 S.Ct. at 99. Thus, the Court held there could be no judicial review.
17
It is sometimes said that in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), the Court created an 'exception' to the doctrine of Switchmen's Union. In Kyne, it was held that the law afforded a remedy in the courts when unlawful action by the National Labor Relations Board inflicted injury on one of the parties to a bargaining dispute. But this was no exception to Switchmen's Union. Rather the Court was careful to note that '(t) his suit is not one to 'review,' in the sense of that term as used in the Act, a decision of the Board made within its jurisdiction. Rather it is one to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act.' Leedom v. Kyne, 358 U.S. 184, 188, 79 S.Ct. 180, 184. (Emphasis supplied.) The limited nature of this holding was re-emphasized only last Term where we referred to the 'narrow limits' and 'painstakingly delineated procedural boundaries of Kyne.' Boire v. Greyhound Corp., 376 U.S. 473, 481, 84 S.Ct. 894, 899, 11 L.Ed.2d 849 (1964). It is with these principles in mind that we turn to the questions in the instant cases.
3. THE CRAFT OR CLASS DETERMINATION.
18
The order of the District Court in Nos. 138 and 369 enjoins the Board from conducting an election 'in which the form of the ballot does not permit a voting employee to cast a vote against collective bargaining representation * * *.' The Association concedes that the order does not enjoin the holding of the election until the Board reconsiders its craft or class determination; nor has it petitioned here for a review of that portion of the decision. Thus, we need not reach the question of the Association's right to demand or participate in proceedings leading to such a determination.
19
The same is not true of United, however, for it specifically sought and was denied such relief, and it comes here contending that this denial constituted error. United argues that since the Act compels it to treat with the representative chosen by the majority of its employees in the craft or class in which the election is held, it has a direct and substantial interest in the scope of that unit; and that since the Act provides for no administrative or judicial review, due process requires that it be accorded an opportunity to participate in the proceedings by which the Board determines which employees may participate.
20
It also contends that the Board, in designating the employees who could participate in the election, did not do so as a result of the statutorily required investigation— which, United contends, requires that the Board take evidence and make findings—but made an arbitrary determination, relying solely on the agreement of the unions.
21
United's position is that Switchmen's Union does not control a claim that the Board has ignored an express command of the Act. This particular question was reserved in the 1943 cases. In General Committee v. Missouri-Kansas-Texas R. Co., 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76 (1943), a companion case to Switchmen's Union, the Court stated: 'Whether judicial power may ever be exerted to require the Mediation Board to exercise the 'duty' imposed upon it under § 2, Ninth, and, if so, the type or types of situations in which it may be invoked present questions not involved here.' Id., at 336, n. 12, 64 S.Ct. at 152. We think that the Board's action here is reviewable only to the extent that it bears on the question of whether it performed its statutory duty to 'investigate' the dispute.2 Reviewing that action, however, we conclude that the contention is completely devoid of merit.
22
Section 2, Ninth makes it the duty of the Board to 'investigate' a representation dispute and 'to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier.' This command is broad and sweeping. We should note at the outset that the Board's duty to investigate is a duty to make such investigation as the nature of the case requires.3 An investigation is 'essentially informal, not adversary'; it is 'not required to take any particular form.' Inland Empire District Council v. Millis, 325 U.S. 697, 706, 65 S.Ct. 1316, 1321, 89 L.Ed. 1877 (1945). These principles are particularly apt here where Congress has simply told the Board to investigate and has left to it the task of selecting the methods and procedures which it should employ in each case.
23
In dealing with the sufficiency of the investigation it is necessary to examine the experience of the Board through the years in resolving questions of craft or class appropriateness. That experience, insofar as it concerns the unit unvolved here, dates back to 1946 in Case No. R—1706, supra, when it was called upon for the first time to apply the craft or class crinciple of representation to the airline industry. At that time it had before it a fledgling industry, a relatively new statutory command and a huge group of employees for whom there were no recognized crafts or classes within the recognized crafts or classes within the meaning of the Act. At least five unions groupings, and all of the major airlines were invited to participate in an extended public hearing. United was among those participating and in fact supported the very craft or class unit which the Board eventually decided upon and to which it has adhered here. Because it was the first time the Board had recognized such a craft or class, it cautiously provided in denying reconsideration of its determination that it was subject to future re-examination where to do so would further the purposes of the Act.
24
Thereafter began a period in which the workability of the R 1706 determination was tested in practice, and it did not go completely unchallenged. In 1948 United voluntarily recognized the Machinists as the collective bargaining representative for its ramp and stores employees. It supplied the Board with evidence upon which this recognition was based and its reasons for departing from its usual policy. It is noteworthy that the Board replied that voluntary recognition would not preclude future determination by the Board of the proper craft or class to which those employees would belong. In 1951 the determination of R—1706 withstood challenge in Matter of Representation of Employees of Northwest Airlines, Inc., Case No. R—2357, 2 N.M.B. Determinations of Craft or Class 60 (1955). United submitted a statement in this proceeding, emphasizing its disagreement with the R—1706 decision and requesting that it be disregarded. The Board refused to do so, but it did reiterate what it had implied in 1947—that it was 'of the opinion that upon proper application * * *, it will be advisable to reexamine the determination in case R—1706 et al., with the view of making such modifications as may be found to be justified at that time.' Id., at 67. We note that in both cases—R 1706 and R—2357—the unions competing for representative status were in disagreement as to the appropriate unit in which elections should be held. Again in 1952, in Case No. R—2482, 2 N.M.B. Determinations of Craft or Class 72 (1955), United participated when the Air Line Dispatch Clerks Association sought to represent its general dispatch clerks, dispatch clerks A, B, and C and crew schedulers; the Brotherhood there disputed the grouping, contending that R—1706 established the scope of the election. The Board sustained this position, which was also that of United, and held that R—1706 should be adhered to. United had argued that the dispatch clerks and schedulers were not a separate craft or class but merely components of the R—1706 unit, and that representation could be had only through investigation and election in that group. The Board ultimately discussed the application in these terms:
25
'The precedents heretofore established by the Board, however, cannot be disregarded. Moreover, the record of stable industrial relations which has followed in the years since the Determination in R—1706 must be given due and careful consideration.
26
'* * * In an industry which is still expanding, the agency charged with the duty of certifying designated representatives for collective bargaining must of necessity hesitate before acquiescing in the desires of certain employees to establish small segregated groups, because by that very course it may retard, or even destroy job opportunities. Flexibility in the use of employee talent carries just as many advantages for the employees as it does for the carrier. The Board is fully aware that the action taken herein will have, as an end result, the withholding of an immediate opportunity to select a collective-bargaining agent by this group of employees, but nevertheless, it is convinced that the basic purposes of the Railway Labor Act will be better served by adherence to the policy of preserving established crafts or classes.' Id., at 76.
27
Nor do the subsequent cases brought to our attention strip the R—1706 decision of its continuing validity. In both these matters—Cases' No. C—2252 and C—2389, 3 N.M.B. Determinations of Craft or Class 16 (1961)—the Board determined that stock and storeroom employees were separate crafts or classes of employees at North Central and Trans-Texas Air Lines. Neither of these airlines had participated in the 1946 proceedings. Both were feeder lines, and in both cases the contending unions disagreed as to the appropriate unit in which the election should be held. In any event, the Board was simply pursuing the policy it had announced when it decided R—1706—that it would re-examine craft or class determinations when it thought the purpose of the Act would be furthered thereby. This in itself belies the notion that the Board has blindly followed the R—1706 ruling.4
28
It is in light of this background that we must decide whether the Board's reaffirmation of the R—1706 determination in these cases was made after a sufficient investigation, within the meaning of the Act. We reject the contention that it adhered solely to the craft or class chosen by the unions. Time and again it has acknowledged that it has the task of determining the appropriateness of a craft or class, and nothing in this case suggests that it abdicated that responsibility here. Where units untested by actual collective bargaining have been proposed by the unions involved the Board has consistently held hearings to determine the propriety of holding elections in those crafts of classes. But where the unions have agreed and the unit they have agreed upon has been one well-established in industry bargaining circles, it has usually held elections without full-scale hearings, not simply because the unions agree but because the unit upon which they agree is one that is well-recognized under prior determinations of the Board and has proven satisfactory in actual experience. This is what it did here.
29
The Board received the Brotherhood's application; it requested, received and considered statements from the carrier and the Machinists. On the basis of these preliminary actions, it scheduled an election. But it continued to correspond with United, accepting and studying its detailed application for reconsideration of the Board's decision to proceed to election in the R—1706 craft or class. Viewed alongside prior experience with the R—1706 grouping in the air transport industry this procedure clearly complied with the statutory command that the Board 'investigate' the dispute. The only missing element of the required investigation is the election and that can now be held promptly.
30
United sought to have the District Court require the Board to hold a hearing on the craft or class issue in which it would participate as a 'party in interest.' But the Act does not require a hearing when the Board itself designates those who may participate in the election. It provides that 'the Board shall designate who may participate in the election * * *, or may appoint a committee of three neutral persons who after hearing shall within ten days designate the employees who may participate in the election.' (Emphasis supplied.) Indeed, United seems aware of this, for it stated in its brief that if 'the Railway Labor Act does not specifically require a hearing, it does require an 'investigation," and that United must be heard in the course of that proceeding. Clearly, then, the Board cannot be required to hold a hearing.
31
Nor does the Act require that United be made a party to whatever procedure the Board uses to define the scope of the electorate. This status is accorded only to those organizations and individuals who seek to represent the employees, for it is the employees' representative that is to be chosen, not the carriers'. Whether and to what extent carriers will be permitted to present their views on craft or class questions is a matter that the Act leaves solely in the discretion of the Board.
32
The gist of United's claim, therefore, is that it should be accorded a greater role in the Board's investigation. This argument must be rejected. Here United participated in the proceeding establishing the craft or class in question as a cognizable grouping of employees, and it has had opportunities since that time to present further evidence. It must be remembered that United is under no compulsion to reach an agreement with the certified representative. As Chief Justice Stone said in Virginian R. Co. v. System Federation No. 40, supra, 'The quality of the action compelled, its reasonableness, and therefore the lowfulness of the compulsion, must be judged in the light of the conditions which have occasioned the exercise of governmental power.' Id., 300 U.S. at 558—559, 57 S.Ct. at 605. Likewise, as the Court observed in Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1515, 4 L.Ed.2d 1307 (1960), the procedural requirements in a articular proceeding depend on '(t)he nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding * * *.' The Board, as we noted in Switchmen's Union, performs the 'function of a referee.' It does not select one organization or another; it simply investigates, defines the scope of the electorate, holds the election and certifies the winner. Thus, while the Board's investigation and resolution of a dispute in one craft or class rather than another might impose some additional burden upon the carrier, we cannot say that the latter's interest rises to a status which requires the full panoply of procedural protections. We find support for this conclusion when we consider the burden that acceptance of United's contentions would visit upon the administration of the Act. To require full-dress hearings on craft or class in each representation dispute would fly in the face of Congress' instruction that representatives should be certified within 30 days of invocation of the Board's services. It places beyond reach the speed which the Act's framers thought an objective of the first order.
33
In view of these considerations, we hold that the Board performed its statutory duty to conduct an investigation and designate the craft or class in which the election should be held and that it did so in a manner satisfying any possible constitutional requirements that might exist. Its determination, therefore, is not subject to judicial review. Switchmen's Union v. National Mediation Board, supra. As was pointed out there, the 'highly selective manner in which Congress has provided for judicial review of administrative orders or determinations under the Act,' id., 320 U.S. at 305, 64 S.Ct. at 99, indicates the confidence that it reposed in the Board. In turn the fair and equitable manner in which the Board has discharged its difficult function is attested by the admirable results it has attained.
34
4. THE FORM OF THE BALLOT.
35
As we have noted the District Court enjoined the Board from conducting an election with a ballot that did not permit an employee to cast a vote against collective representation. We believe this was error. Section 2, Ninth empowers the Board to establish the rules governing elections. Moreover, it provides that in resolving representation disputes the Board is authorized 'to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier.' Thus, not only does the statute fail to spell out the form of any ballot that might be used but it does not even require selection by ballot. It leaves the details to the broad discretion of the Board with only the caveat that it 'insure' freedom from carrier interference. That the details of selecting representatives were to be left for the final determination of the Board is buttressed by legislative history clearly indicating as much.5 See Hearings on H.R.7650, House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 34—35.
36
In summary, then, the selection of a ballot is a necessary incident of the Board's duty to resolve disputes. The Act expressly says as much, instructing the Board alone to establish the rules governing elections. Thus, it is clear that its decision on the matter is not subject to judicial review where there is no showing that it has acted in excess of its statutory authority.
37
United and the Association, however, apparently relying on Leedom v. Kyne, supra, contend that the Board has exceeded its statutory authority in selecting the proposed ballot. The argument is that § 2, Fourth, which provides that '(t)he majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class' requires a ballot with a 'no union' box. They urge that in Virginian R. Co. v. System Federation No. 40, supra, 300 U.S. at 560, 57 S.Ct. at 605, certification on the basis of a majority of the votes cast, rather than a majority of the eligible voters, was upheld on the ground that nonvoters 'are presumed to assent to the expressed will of the majority of those voting.' And they say that the Board's ballot is inconsistent with this rationale. But the Board has not followed the presumption of Virginian R. Co. Indeed the caveat on the face of the proposed ballot expressly refutes such an assumption. The Board's rule of election procedure is that no vote is a vote for no representation, and this is now made plain to the voting employees. It is, as we have said, an assumption more favorable to the employees that the Association represents. Thus, under the Board's practice a majority of the craft or class, as required by § 2, Fourth, does have the right to determine who shall be the representative of the group or, indeed, whether they shall have any representation at all.
38
It is also claimed that since § 9(a) of the National Labor Relations Act, 49 Stat. 453, as amended, 61 Stat. 143, 29 U.S.C. § 159(a) (1958 ed.) and § 2, Ninth of the Railway Labor Act are both designed to encourage collective bargaining and the National Labor Relations Board uses a ballot with a 'no union' box, the Mediation Board must use one also. Even assuming that the 'no union' ballot would implement the purpose of the Act, this is a far cry from saying that it is the only form of ballot that would do so. Given broad discretion as it is the Mediation Board has followed a presumption contrary to that adhered to by the Labor Relations Board. The latter has tailored its ballot to conform to the presumption of Virginian R. Co. If in a Labor Board election, an employee does not vote, he can safely be presumed to have acquiesced in the will of the majority of the voters. In a Mediation Board election, if the employee refuses to vote he is treated as having voted for no representation.
39
We venture no opinion as to whether the Board's proposed ballot will best effectuate the purposes of the Act. We do say that there is nothing to suggest that in framing it the Board has exceeded its statutory authority.
40
Unable to point to any specific requirement of a 'no union' ballot in the Act, United and the Association are left to arguing in terms of policy and broad generalities as to what the Railway Labor Act should provide. The very nature of the arguments indicates that the Board's choice of its proposed ballot is not subject to judicial review, for it was to avoid the haggling and delays of litigation that such questions were left to the Board. These are matters for Congress and the Board rather than the courts. Here the Board—a creature of Congress—has been, as we have said, careful to provide fair, yet effective, procedures and we feel certain that it will continue to do so. If its decision on the ballot is not acceptable, the place to go is to Congress, not to us.
41
Accordingly, we reverse the judgments in Nos. 138 and 369 and affirm the judgment in No. 139. It is so ordered.
42
Partly affirmed and partly reversed.
43
Mr. Justice BLACK concurs in the result.
44
Mr. Justice STEWART, dissenting.
45
My dissent stems from the Court's approval of the form of ballot used by the National Mediation Board in representation elections. As I understand its opinion, the Court holds that the form of ballot devised by the Board is subject to judicial review, at least for the purpose of determining whether the Board 'acted in excess of its statutory authority.' With that I agree. But the Court goes on to hold that the ballot devised by the Board does conform with the statute. With that I cannot agree.
I.
46
Nothing decided in Switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61, forecloses a determination by this Court of the validity of the ballot form used by the Board. On the contrary, that case, which insulated from judicial review the Board's ultimate craft or class determinations, makes it all the more imperative that the Board be required to operate by fair and lawful procedures. Compare Silver v. New York Stock Exchange, 373 U.S. 341, 361, 83 S.Ct. 1246, 1259, 10 L.Ed.2d 389. To say that Switchmen's Union, by interpreting the Railway Labor Act (44 Stat. 577, as amended) to deprive courts of jurisdiction to review class or craft determinations, also deprived courts of jurisdiction to review the fundamental procedures used by the Board in arriving at those determinations 'would indeed be to 'turn the blade inward." Graham v. Brotherhood of Firemen, 338 U.S. 232, 237, 70 S.Ct. 14, 17, 94 L.Ed. 22.
47
The ballot lies at the heart of the Board's certification mechanism. It is used day in and day out and will be used on thousands of occasions in the future. What happened in this very case illustrates the vital and salutary effect of judicial scrutiny of the Board's procedures. The ballot form which the Court of Appeals held illegal in this litigation had been used by the Board for many years. Yet the Solicitor General, as a consequence of the grant of certiorari in this case, persuaded the Board to modify the ballot to reduce its ambiguities.1 If the Court were understood as holding today that there can be no review of the ballot's structure, the Board would, of course, be free to return to the older historic form which the Solicitor General has virtually conceded is unfair and unlawful.2
II.
48
Even as revised in response to our grant of certiorari in this case, however, the form of ballot to be used by the Board continues to list spaces only for the organizations actually competing for representation, with a blank space left for writing in an unlisted organization. No space is provided for voting for 'no union.' Employees are still confronted with a ballot upon which they can mark a choice only among representatives, without an opportunity to mark a choice for no representative at all. This ballot form is directly attributable to the Board's view of what the bargaining pattern should be in the airline industry. The Board has stated that 'the act does not contemplate that its purposes shall be achieved, nor is it clear that they can be achieved, without employee representatives * * *.'3 As a result, the Board has designed its ballot to encourage employees to choose a labor organization to represent them collectively. I believe both the language of the Act and its legislative history belie this view and, for that reason, I would order the Board to reconsider the form of its ballot.
49
Section 2, Fourth provides that 'Employees shall have the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class * * *.' The Act performs the function, familiar to the rest of our labor legislation, of furnishing the opportunity for majority determination within each employee group of what the nature of bargaining shall be. But the Act is not compulsory. Employees are not required to organize, nor are they required to select labor unions or anyone else as their representatives. It has always been recognized that under the law the employees have the option of rejecting collective representation.
The House Report on the bill stated:
50
'2. It (H.R. 9861) provides that the employees shall be free to join any labor union of their choice and likewise be free to refrain from joining any union if that be their desire and forbids interference by the carriers' officers with the exercise of said rights.' (Emphasis supplied.) (H.R.Rep. No. 1944 to accompany H.R. 9861, Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 1934, p. 2.)
51
Much of the testimony on the bill was given by Commissioner Joseph B. Eastman, Federal Coordinator of Transportation and the principal draftsman of the legislation. His reply to a question by Congressman Huddleston reflects the contemporary understanding of the Act:
52
'Commissioner EASTMAN. No; it does not require collective bargaining on the part of the employees. If the employees do not wish to organize, prefer to deal individually with the management with regard to these matters, why, that course is left open to them, or it should be.' (Hearings on H.R. 7650, House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 1934, p. 57.) And in the Senate, Senator Wagner insisted that this was the burden of the bill:
53
'Senator WAGNER. * * * I didn't understand these provisions compelled an employee to join any particular union. I thought the purpose of it was just the opposite, to see that the men have absolute liberty to join or not to join any union or to remain unorganized.
54
'Mr. CLEMENT. That is the way we hope they will read when they are finally amended.' (Hearings on S. 3266, Senate Committee on Interstate Commerce, 73d Cong., 2d Sess., 1934, p. 76.)
55
See also Hearings, id., p. 12. That legislative history is directly counter to the conception of the Act reflected by the ballot form used by the Board, and spelled out in the particularized record of the present case.4
56
The form of the ballot is markedly different from that evolved by the National Labor Relations Board under a statute which contained almost identical wording at the time the ballot was designed.5 Originally the Labor Board, like the Mediation Board, did not include a space for a 'no union' vote. Since July 1937, however, it has consistently placed such a slot on the ballot to insure that an employee's vote for a particular representative does not spring from a feeling that the vying organizations present the only alternatives available. 'The policy adopted by the Board is designed merely to make sure that the votes recorded for a particular representative express a free choice rather than a choice in default of the possibility of expressing disapproval of both or all proposed representatives.' In re Interlake Iron Corp., 4 N.L.R.B. 55, 61. 'The Act * * * does not require an unwilling majority of employees to bargain through representatives. It merely guarantees and protects that right of a majority if it chooses to exercise it.' Ibid. (Emphasis supplied.)
57
Certainly the Board may use alternate devices for divining the desires of the employees. But each device must be tested within its own framework. Where the Board purports to gain its information through the traditional system of balloting the employees, all parties rely on that election to yield a meaningful result. Here the Board decided to employ the secret ballot and rely on its results exclusively. At the least then, the ballot must unambiguously convey to each employee the choices available to him under the law.6
58
Because the National Mediation Board has hewn to the mistaken belief that its duty is to encourage collective representation in the airline industry, I would remand this case to the Board for further consideration in the light of the views here expressed. I would not attempt to dictate to the Board precisely what form the ballot should ultimately take. Within a broad range, that question surely lies within the Board's discretion. But it is a question the Board should confront with a correct understanding of the law.
1
Section 2, Ninth provides:
'If any dispute shall arise among a carrier's employees as to who are the representatives of such employees designated and authorized in accordance with the requirements of this chapter, it shall be the duty of the Mediation Board, upon request of either party to the dispute, to investigate such dispute and to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier. Upon receipt of such certification the carrier shall treat with the representative so certified as the representative of the craft or class for the purposes of this chapter. In such an investigation, the Mediation Board shall be authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier. In the conduct of any election for the purposes herein indicated the Board shall designate who may participate in the election and establish the rules to govern the election, or may appoint a committee of three neutral persons who after hearing shall within ten days designate the employees who may participate in the election. * * *' 45 U.S.C. § 152, Ninth.
2
Indeed in the Keystone case dealing with the Railway Labor Act, Virginian R. Co. v. System Federation No. 40, supra, the validity of the Board's certificate was attacked because it failed to recite the number of eligible voters in the craft or class in which the election was held. The Court found it unnecessary to decide whether the certificate would be conclusive absent such a finding, but it commented:
'But we think it plain that if the Board omits to certify any of them (the facts concerning the number of eligible voters, the number participating and the choice of the majority), the omitted fact is open to inquiry by the court asked to enforce the command of the statute. * * * Such inquiry was made by the trial court which found the number of eligible voters and thus established the correctness of the Board's ultimate conclusion.' Id., 300 U.S. at 562, 57 S.Ct. at 606.
3
Ruby v. American Airlines, Inc., 2 Cir., 323 F.2d 248, 255; WES Chapter, Flight Engineers' Int'l Ass'n v. National Mediation Board, 114 U.S.App.D.C. 229, 232, 314 F.2d 234, 237.
4
It should be noted, however, that in nearly all cases subsequent to Nos. C—2252, and C—2389, the Board has held elections among clerical, office, stores, fleet and passenger service employees without re-examining that grouping and without noticeable protest. Mr. Thompson, Executive Secretary of the Board, lists 19 such cases in his affidavit in the District Court supporting the Board's motion to dismiss. This hardly supports United's contention that the Board is clinging in this case to a determination it has found obsolete.
5
The legislative history supports the view that the employees are to have the option of rejecting collective representation. The ballot that the Board proposes to use in future elections fully comports to this conception of the Act. Using the Board's ballot an employee may refrain from joining a union and refuse to bargain collectively. All he need do is not vote and this is considered a vote against representation under the Board's practice of requiring that a majority of the eligible voters in a craft or class actually vote for some representative before the election is valid. The practicalities of voting—the fact that many who favor some representation will not vote—are in favor of the employee who wants 'no union.' Indeed, the method proposed by the Board might well be more effective than providing a 'no union' box, since, if one were added, a failure to vote would then be taken as a vote approving the choice of the majority of those voting. This is the practice of the National Labor Relations Board.
1
The Solicitor General's changes would leave the slots on the ballot intact (not supplying a 'no union' box) but would append the following caption:
'INSTRUCTIONS FOR VOTING
'No employee is required to vote. If less than a majority of the employees cast valid ballots, no representative will be certified.'
It is this revised form of ballot which the Court today approves, rather than the old form which was before the Court of Appeals.
2
Before Switchmen's Union there were several decisions which furnished the National Mediation Board with clarifying interpretations of the Act. The Board found these 'decisions are very helpful * * * in that they serve to settle issues which, in the past, have frequently arisen to trouble the orderly and prompt adjustment of disputes over representation between different factions among employees.' Annual Report of the National Mediation Board, 1938, pp. 5—6.
3
Administration of the Railway Labor Act by the National Mediation Board, 1934—1957, p. 15.
4
In a letter to United Air Lines, rejecting its objections to the form of the ballot, the Executive Secretary of the Board stated: 'Introduction of a 'yes' or 'no' ballot would contribute to, if it did not actually encourage, an attempt to circumvent the mandate of Congress that representatives be designated by carriers and their employees for the purposes described in Section 2, First and Second of the Railway Labor Act * * *.' Letter to Charles Mason from Executive Secretary of the National Mediation Board, January 24, 1963.
5
The original § 9(c) of the Wagner Act, 49 Stat. 453, stated the Labor Board's powers in the following language:
'Whenever a question affecting commerce arises concerning the representation of employees, the Board may investigate such controversy and certify to the parties, in writing, the name or names of the representatives that have been designated or selected. In any such investigation, the Board shall provide for an appropriate hearing upon due notice, either in conjunction with a proceeding under
section 10 or otherwise, and may take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives.' Compare § 2, Ninth of the Railway Labor Act:
'If any dispute shall arise among a carrier's employees as to who are the representatives of such employees designated and authorized in accordance with the requirements of this chapter, it shall be the duty of the Mediation Board, upon request of either party to the dispute, to investigate such dispute and to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved iin the dispute, and certify the same to the carrier. * * * In such an investigation, the Mediation Board shall be authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier. * * *' 45 U.S.C. § 152, Ninth (1958 ed.).
The similarity in the purposes of the Wagner Act and the Railway Labor Act was pointed out in the report of the House Committee on Labor which stated that 'the bill is merely an amplification and further clarification of the principles enacted into law by the Railway Labor Act * * *.' H.R.Rep. No. 1147, 74th Cong., 1st Sess., p. 3. See 40 Op.Atty.Gen. 541 (Attorney General Clark).
6
Prior to this litigation, the only court to consider the ballot employed by the National Mediation Board found that failure to include a 'no union' slot deprived the employees of a 'free choice.' 'It is manifest that this ballot did not present the issue to the eligible voters.' McNulty v. National Mediation Board, 18 F.Supp. 494, 501 (D.C.N.D.N.Y.).
| 89
|
380 U.S. 609
85 S.Ct. 1229
14 L.Ed.2d 106
Eddie Dean GRIFFIN, Petitioner,v.STATE OF CALIFORNIA.
No. 202.
Argued March 9, 1965.
Decided April 28, 1965.
Rehearing Denied June 7, 1965.
See 381 U.S. 957, 85 S.Ct. 1797.
Morris Lavine, Los Angeles, Cal., for petitioner.
Albert W. Harris, Jr., San Francisco, Cal., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner was convicted of murder in the first degree after a jury trial in a California court. He did not testify at the trial on the issue of guilt, though he did testify at the separate trial1 on the issue of penalty. The trial court instructed the jury on the issue of guilt, stating that a defendant has a constitutional right not to testify. But it told the jury:2
2
'As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.'
3
It added, however, that no such inference could be drawn as to evidence respecting which he had no knowledge. It stated that failure of a defendant to deny or explain the evidence of which he had knowledge does not create a presumption of guilt nor by itself warrant an inference of guilt nor relieve the prosecution of any of its burden of proof.
4
Petitioner had been seen with the deceased the evening of her death, the evidence placing him with her in the alley where her body was found. The prosecutor made much of the failure of petitioner to testify:
5
'The defendant certainly knows whether Essie Mae had this beat up appearance at the time he left her apartment and went down the alley with her.
6
'What kind of a man is it that would want to have sex with a woman that beat up is she was beat up at the time he left? 'He would know that. He would know how she got down the alley. He would know how the blood got on the bottom of the concrete steps. He would know how long he was with her in that box. He would know how her wig got off. He would know whether he beat her or mistreated her. He would know whether he walked away from that place cool as a cucumber when he saw Mr. Villasenor because he was conscious of his own guilt and wanted to get away from that damaged or injured woman.
7
'These things he has not seen fit to take the stand and deny or explain.
8
'And in the whole world, if anybody would know, this defendant would know.
9
'Essie Mae is dead, she can't tell you her side of the story. The defendant won't.'
10
The death penalty was imposed and the California Supreme Court affirmed. 60 Cal.2d 182, 32 Cal.Rptr. 24, 383 P.2d 432. The case is here on a writ of certiorari which we granted, 377 U.S. 989, 84 S.Ct. 1926, 12 L.Ed.2d 1043, to consider whether comment on the failure to testify violated the Self-Incrimination Clause of the Fifth Amendment which we made applicable to the States by the Fourteenth in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, decided after the Supreme Court of California had affirmed the present conviction.3
11
If this were a federal trial, reversible error would have been committed. Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650, so holds. It is said, however, that the Wilson decision rested not on the Fifth Amendment, but on an Act of Congress, now 18 U.S.C. § 3481.4 That indeed is the fact, as the opinion of the Court in the Wilson case states. And see Adamson v. People of State of California, 332 U.S. 46, 50, n. 6, 67 S.Ct. 1672, 1674, 91 L.Ed. 1903; Bruno v. United States, 308 U.S. 287, 294, 60 S.Ct. 198, 200, 84 L.Ed. 257. But that is the beginning, not the end, of our inquiry. The question remains whether, statute or not, the comment rule, approved by California, violates the Fifth Amendment.
12
We think it does. It is in substance a rule of evidence that allows the State the privilege of tendering to the jury for its consideration the failure of the accused to testify. No formal offer of proof is made as in other situations; but the prosecutor's comment and the court's acquiescence are the equivalent of an offer of evidence and its acceptance. The Court in the Wilson case stated:
13
'* * * the act was framed with a due regard also to those who might prefer to rely upon the presumption of innocence which the law gives to every one, and not wish to be witnesses. It is not every one who can safely venture on the witness stand, though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offenses charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is not every one, however, honest, who would therefore willingly be placed on the witness stand. The statute, in tenderness to the weakness of those who from the causes mentioned might refuse to ask to be witnesses, particularly when they may have been in some degree compromised by their association with others, declares that the failure of a defendant in a criminal action to request to be a witness shall not create any presumption against him.' 149 U.S., p. 66, 13 S.Ct. p. 766.
14
If the words 'fifth Amendment' are substituted for 'act' and for 'statute' the spirit of the Self-Incrimination Clause is reflected. For comment on the refusal to testify is a remnant of the 'inquisitorial system of criminal justice,' Murphy v. Waterfront Comm., 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678, which the Fifth Amendment outlaws.5 It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. It is said, however, that the inference of guilt for failure to testify as to facts peculiarly within the accused's knowledge is in any event natural and irresistible, and that comment on the failure does not magnify that inference into a penalty for asserting a consitutional privilege. People v. Modesto, 62 Cal.2d 436, 452—453, 42 Cal.Rptr. 417, 426—427, 398 P.2d 753, 762—763. What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another. That the inference of guilt is not always so natural or irresistible is brought out in the Modesto opinion itself:
15
'Defendant contends that the reason a defendant refuses to testify is that his prior convictions will be introduced in evidence to impeach him ((Cal.) Code Civ.Proc. § 2051) and not that he is unable to deny the accusations. It is true that the defendant might fear that his prior convictions will prejudice the jury, and therefore another possible inference can be drawn from his refusal to take the stand.' Id., p. 453, 42 Cal.Rptr., p. 427, 398 P.2d, p. 763.
16
We said in Malloy v. Hogan, supra, 378 U.S. p. 11, 84 S.Ct. p. 1495, that 'the same standards must determine whether an accused's silence in either a federal or state proceeding is justified.' We take that in its literal sense and hold that the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.6
17
Reversed.
18
THE CHIEF JUSTICE took no part in the decision of this case.
19
Mr. Justice HARLAN, concurring.
20
I agree with the Court that within the federal judicial system the Fifth Amendment bars adverse comment by federal prosecutors and judges on a defendant's failure to take the stand in a criminal trial, a right accorded him by that amendment. And given last Term's decision in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, that the Fifth Amendment applies to the States in all its refinements, I see no legitimate escape from today's decision and therefore concur in it. I do so, however, with great reluctance, since for me the decision exemplifies the creeping paralysis with which this Court's recent adoption of the 'incorporation' doctrine is infecting the operation of the federal system. See my opinion concurring in the result in Pointer v. State of Texas, 380 U.S. 400. at 408, 85 S.Ct. 1065, at 1070.
21
While I would agree that the accusatorial rather than inquisitorial process is a fundamental part of the 'liberty' guaranteed by the Fourteenth Amendment, my Brother STEWART in dissent, post, this page, fully demonstrates that the nocomment rule 'might be lost, and justice still be done,' Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288. As a 'non-fundamental' part of the Fifth Amendment (cf. my opinion concurring in the result in Pointer, 380 U.S., at 409, 85 S.Ct. at 1070), I would not, but for Malloy, apply the no-comment rule to the States.
22
Malloy put forward a single argument for applying the Fifth Amendment, as such, to the States:
23
'It would be incongruous to have different standards determine the validity of a claim of privilege * * *, depending on whether the claim was asserted in a state or federal court. Therefore, the same standards must determine whether an accused's silence in either a federal or state proceeding is justified.' Malloy v. Hogan, supra, 378 U.S. at 11, 84 S.Ct. at 1495. (Emphasis added.)
24
My answer then (378 U.S., at 27, 84 S.Ct. at 1503) and now is that 'incongruity,' within the limits of fundamental fairness, is at the heart of our federal system. The powers and responsibilities of the State and Federal Governments are not congruent, and under the Constitution they are not intende to be.
25
It has also recently been suggested that measuring state procedures against standards of fundamental fairness as reflected in such landmark decision as Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97, and Palko v. State of Connecticut, supra, 'would require this Court to intervene in the state judicial process with considerable lack of predictability and with a consequent likelihood of considerable friction,' Pointer v. State of Texas, 380 U.S. at 413—414, 85 S.Ct., at 1073 (concurring opinion of Goldberg, J.). This approach to the requirements of federalism, not unlike that evinced by the Court in Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, apparently leads, in cases like this, to the conclusion that the way to eliminate friction with state judicial systems is not to attempt a working harmony, but to override them altogether.
26
Although compelled to concur in this decision, I am free to express the hope that the Court will eventually return to constitutional paths which, until recently, it has followed throughout its history.
27
Mr. Justice STEWART, with whom Mr. Justice WHITE joins, dissenting.
28
The petitioner chose not to take the witness stand at his trial upon a charge of first-degree murder in a California court. Article I, § 13, of the California Constitution establishes a defendant's privilege against self-incrimination and further provides:
29
'(I)n any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court any by counsel, and may be considered by the court or the jury.'
30
In conformity with this provision, the prosecutor in his argument to the jury emphasized that a person accused of crime in a public forum would ordinarily deny or explain the evidence against him if he truthfully could do so.1 Also in conformity with this California constitutional provision, the judge instructed the jury in the following terms:
31
'It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. Thus, whether or not he does testify rests entirely in his own decision. As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify, or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable. In this connection, however, it should be noted that if a defendant does not have the knowledge that he would need to deny or to explain any certain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain such evidence. The failure of a defendant to deny or explain evidence against him does not create a presumption of guilt or by itself warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt.'
32
The jury found the petitioner guilty as charged, and his conviction was affirmed by the Supreme Court of California.2
33
No claim is made that the prosecutor's argument or the trial judge's instructions to the jury in this case deprived the petitioner of due process of law as such. This Court long ago decided that the Due Process Clause of the Fourteenth Amendment does not of its own force forbid this kind of comment on a defendant's failure to testify. Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14; Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672. The Court holds, however, that the California constitutional provision violates the Fifth Amendment's injunction that no person 'shall be compelled in any criminal case to be a witness against himself,' an injunction which the Court less than a year ago for the first time found was applicable to trials in the courts of the several States.
34
With both candor and accuracy, the Court concedes that the question before us is one of first impression here.3 It is a question which has not arisen before, because until last year the self-incrimination provision of the Fifth Amendment had been held to apply only to federal proceedings, and in the federal judicial system the matter has been covered by a specific Act of Congress which has been in effect ever since defendants have been permitted to testify at all in federal criminal trials.4 See Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198; Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765; Adamson v. People of State of California, supra.
35
We must determine whether the petitioner has been 'compelled * * * to be a witness against himself.' Compulsion is the focus of the inquiry. Certainly, if any compulsion be detected in the California procedure, it is of a dramatically different and less palpable nature than that involved in the procedures which historically gave rise to the Fifth Amendment guarantee. When a suspect was brought before the Court of High Commission or the Star Chamber, he was commanded to answer whatever was asked of him, and subjected to a farreaching and deeply probing inqury in an effort to ferret out some unknown and frequently unsuspected crime. He declined to answer on pain of incarceration, banishment, or mutilation. And if he spoke falsely, he was subject to further punishment. Faced with this formidable array of alternatives, his decision to speak was unquestionably coerced.5
36
Those were the lurid realities which behind enactment of the Fifth Amendment, a far cry from the subject matter of the case before us. I think that the Court in this case stretches the concept of compulsion beyond all reasonable bounds, and that whatever compulsion may exist derives from the defendant's choice not to testify, not from any comment by court or counsel. In support of its conclusion that the California procedure does compel the accused to testify, the Court has only this to say: 'It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.' Exactly what the penalty imposed consists of is not clear. It is not, as I understand the problem, that the jury becomes aware that the defendant has chosen not to testify in his own defense, for the jury will, of course, realize this quite evidence fact, even though the choice goes unmentioned. Since comment by counsel and the court does not compel testimony by creating such an awarencess, the Court must be saying that the California constitutional provision places some other compulsion upon the defendant to incriminate himself, some compulsion which the Court does not describe and which I cannot readily perceive.
37
It is not at all apparent to me, on any realistic view of the trial process, that a defendant will be at more of a disadvantage under the California practice than he would be in a court which permitted no comment at all on his failure to take the witness stand. How can it be said that the inferences drawn by a jury will be more detrimental to a defendant under the limiting and carefully controlling language of the instruction here involved than would result if the jury were left to roam at large with only its untutored instincts to guide it, to draw from the defendant's silence broad inferences of guilt? The instructions in this case expressly cautioned the jury that the defendant's failure to testify 'does not create a presumption of guilt or by itself warrant an inference of guilt'; it was further admonished that such failure does not 'relieve the prosecution of its burden of providing every essential element of the crime,' and finally the trial judge warned that the prosecution's burden remained that of proof 'beyond a reasonable doubt.' Whether the same limitations would be observed by a jury without the benefit of protective instructions shielding the defendant is certainly open to real doubt.
38
Moreover, no one can say where the balance of advantage might lie as a result of the attorneys' discussion of the matter. No doubt the prosecution's argument will seek to encourage the drawing of inferences unfavorable to the defendant. However, the defendant's counsel equally has an opportunity to explain the various other reasons why a defendant may not wish to take the stand, and thus rebut the natural if uneducated assumption that it is because the defendant cannot truthfully deny the accusations made.
39
I think the California comment rule is not a coercive device which impairs the right against self-incrimination, but rather a means of articulating and bringing into the light of rational discussion a fact inescapably impressed on the jury's consciousness. The California procedure is not only designed to protect the defendant against unwarranted inferences which might be drawn by an uninformed jury; it is also an attempt by the State to recognize and articulate what it believes to be the natural probative force of certain facts. Surely no one would deny that the State has an important interest in throwing the light of rational discussion on that which transpires in the course of a trial, both to protect the defendant from the very real dangers of silence and to shape a legal process designed to ascertain the truth.
40
The California rule allowing comment by counsel and instruction by the judge on the defendant's failure to take the stand is hardly an idiosyncratic aberration. The Model Code of Evidence, and the Uniform Rules of Evidence both sanction the use of such procedures.6 The practice has been endorsed by resolution of the American Bar Association and the American Law Institute,7 and has the support of the weight of scholarly opinion.8
41
The formulation of procedural rules to govern the administration of criminal justice in the various States is properly a matter of local concern. We are charged with no general supervisory power over such matters; our only legitimate function is to prevent violations of the Constitution's commands. California has honored the constitutional command that no person shall 'be compelled in any criminal case to be a witness against himself.' The petitioner was not compelled to testify, and he did not do so. But whenever in a jury trial a defendant exercises this constitutional right, the members of the jury are bound to draw inferences from his silence. No constitution can prevent the operation of the human mind. Without limiting instructions, the danger exists that the inferences drawn by the jury may be unfairly broad. Some States have permitted this danger to go unchecked, by forbidding any comment at all upon the defendant's failure to take the witness stand.9 Other States have dealt with this danger in a variety of ways, as the Court's opinion indicates. Ante, note 3, at pp. 611-612. Some might differ, as a matter of policy, with the way California has chosen to deal with the problem, or even disapprove of the judge's specific instructions in this case.10 But, so long as the constitutional command is obeyed, such matters of state policy are not for this Court to decide.
42
I would affirm the judgment.
1
See Penal Code § 190.1, providing for separate trials on the two issues.
2
Article I, § 13, of the California Constitution provides in part:
'* * * in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury.'
3
The California Supreme Court later held in People v. Modesto, 62 Cal.2d 436, 42 Cal.Rptr. 417, 398 P.2d 753, that its 'comment' rule squared with Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489. The overwhelming consensus of the States, however, is opposed to allowing comment on the defendant's failure to testify. The legislatures or courts of 44 States have recognized that such comment is, in light of the privilege against self-incrimination, 'an unwarrantable line of argument.' State v. Howard, 35 S.C. 197, 203, 14 S.E. 481, 483. See 8 Wigmore, Evidence § 2272, n. 2 (McNaughton rev. ed. 1961 and 1964 Supp.). Of the six States which permit comment, two, California and Ohio, give this permission by means of an explicit constitutional qualification of the privilege against self-incrimination. Cal.Const. Art. I, § 13; Ohio Const. Art. I, § 10. New Jersey permits comment, State v. Corby, 28 N.J. 106, 145 A.2d 289; cf. State v. Garvin, 44 N.J. 268, 208 A.2d 402; but its constitution contains no provision embodying the privilege against self-incrimination (see Laba v. Newark Bd. of Educ., 23 N.J. 364, 389, 129 A.2d 273, 287; State v. White, 27 N.J. 158, 168 169, 142 A.2d 65, 70). The absence of an express constitutional privilege against self-incrimination also puts Iowa among the six. See State v. Ferguson, 226 Iowa 361, 372—373, 283 N.W. 917, 923. Connecticut permits comment by the judge but not by the prosecutor. State v. Heno, 119 Conn. 29, 174 A. 181, 94 A.L.R. 696. New Mexico permits comment by the prosecutor but holds that the accused is then entitled to an instruction that 'the jury shall indulge no presumption against the accused because of his failure to testify'. N.M.Stat.Ann. § 41—12—19; State v. Sandoval, 59 N.M. 85, 279 P.2d 850.
4
Section 3481 reads as follows:
'In trial of all persons charged with the commission of offenses against the United States and in all proceedings in courts martial and courts of inquiry in any State, District, Possession or Territory, the person charged shall, at his own request, be a competent witness. His failure to make such request shall not create any presumption against him.' June 25, 1948, c. 645, 62 Stat. 833.
The legislative history shows that 18 U.S.C. § 3481 was designed, inter alia, to bar counsel for the prosecution from commenting on the defendant's refusal to testify. Mr. Frye of Maine, spokesman for the bill, said, 'That is the law of Massachusetts, and we proposed to adopt it as a law of the United States.' 7 Cong.Rec. 385. The reference was to Mass.Stat. 1866, c. 260, now Mass.Gen.Laws Ann., c. 233, § 20, cl. Third (1959), which is almost identical with 18 U.S.C. § 3481. See also Commonwealth v. Harlow, 110 Mass. 411; Commonwealth v. Scott, 123 Mass. 239; Opinion of the Justices, 300 Mass. 620, 15 N.E.2d 662.
5
Our decision today that the Fifth Amendment prohibits comment on the defendant's silence is no innovation, for on a previous occasion a majority of this Court indicated their acceptance of this proposition. In Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, the question was, as here, whether the Fifth Amendment proscribed California's comment practice. The four dissenters (Black, Douglas, Murphy and Rutledge, JJ.) would have answered this question in the affirmative. A fifth member of the Court, Justice Frankfurter, stated in a separate opinion: 'For historical reasons a limited immunity from the common duty to testify was written into the Federal Bill of Rights, and I am prepared to agree that, as part of that immunity, comment on the failure of an accused to take the witness stand is forbidden in federal prosecutions.' Id., p. 61, 67 S.Ct. p. 1680. But, though he agreed with the dissenters on this point, he also agreed with Justices Vinson, Reed, Jackson, and Burton that the Fourteenth Amendment did not make the Self-Incrimination Clause of the Fifth Amendment applicable to the States; thus he joined the opinion of the Court which so held (the Court's opinion assumed that the Fifth Amendment barred comment, but it expressly disclaimed any intention to decide the point. Id., p. 50, 67 S.Ct., p. 1674).
6
We reserve decision on whether an accused can require, as in Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257, that the jury, be instructed that his silence must be disregarded.
1
See the excerpt from the prosecutor's argument quoted in the Court's opinion, ante, pp. 610-611.
2
60 Cal.2d 182, 32 Cal.Rptr. 24, 383 p.2d 432. As this case was decided before Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, the California Supreme Court did not give plenary consideration to the question now before us; however, that court has since upheld the federal constitutionality of the California comment rule in a thoroughly reasoned opinion by Chief Justice Traynor. People v. Modesto, 62 Cal.2d 436, 42 Cal.Rptr. 417, 398 P.2d 753.
3
In the Adamson case, the present question was not reached because the majority ruled that the Fifth Amendment is not applicable to the States. Mr. Justice Reed's opinion made clear that the California rule was only assumed to contravene the Fifth Amendment, 'without any intention * * *of ruling upon the issue.' The dissenting opinion of Mr. Justice Black and Mr. Justice Douglas read the majority opinion as 'strongly (implying) that the Fifth Amendment does not, of itself, bar comment upon failure to testify,' but they considered the case on the majority's assumption, thereby giving no approval to that assumption, even in dictum. That no such approval was given by this dissenting opinion is further made evident by the fact that Mr. Justice Murphy and Mr. Justice Rutledge, also in dissent, felt it necessary to make what they characterized as an 'addition,' an expression of their view that the guarantee against self-incrimination had been violated in the case. Mr. Justice Frankfurter, in concurring, also indicated that he was prepared to agree that the Fifth Amendment barred comment, thus bringing to three the members of the Court who, in dicta, took the view embraced by the Court today.
4
20 Stat. 30, as amended, now 18 U.S.C. § 3481.
5
See generally 8 Wigmore, Evidence § 2250 (McNaughton rev. ed. 1961).
6
Model Code of Evidence, Rule 201 (1942); Uniform Rules of Evidence, Rule 23(4) (1953).
7
56 A.B.A.Rep. 137—159 (1931); 59 A.B.A.Rep. 130—141 (1934); 9 Proceedings A.L.I. 202, 203 (1931).
8
See Bruce, The Right to Comment on the Failure of the Defendant to Testify, 31 Mich.L.Rev. 226; Dunmore, Comment on Failure of Accused to Testify, 26 Yale L.J. 464; Hadley, Criminal Justice in America, 11 A.B.A.J. 674, 677; Hiscock, Criminal Law and Procedure in New York, 26 Col.L.Rev. 253, 258—262; Note, Comment on Defendant's Failure to Take the Stand, 57 Yale L.J. 145.
9
See, e.g., State v. Pearce, 56 Minn., 226, 57 N.W. 652, 1065; Tines v. Commonwealth, 77 S.W. 363, 25 KyL.Rep. 1233; Hanks v. Commonwealth, 248 Ky. 203, 58 S.W.2d 394.
10
It should be noted that the defendant's counsel did not request any additions to the instructions which would have brought but other possible reasons which might have influenced the defendant's decision not to become a witness. The California Constitution does not in terms prescribe what form of instruction should be given and the petitioner has not argued that another form would have been denied.
| 01
|
380 U.S. 685
85 S.Ct. 1242
14 L.Ed.2d 165
WARREN TRADING POST COMPANY, Appellant,v.ARIZONA STATE TAX COMMISSION et al.
No. 115.
Argued March 9, 1965.
Decided April 29, 1965.
Edward Jacobson, Phoenix, Ariz., for appellant.
Philip M. Haggerty, Phoenix, Ariz., for appellees.
Mr. Justice BLACK delivered the opinion of the Court.
1
Arizona has levied a tax of 2% on the 'gross proceeds of sales, or gross income' of appellant Warren Trading Post Company, which does a retail trading business with Indians on the Arizona part of the Navajo Indian Reservation under a license granted by the United States Commissioner of Indian Affairs pursuant to 19 Stat. 200, 25 U.S.C. § 261 (1958 ed.).1 Appellant claimed that as applied to its income from trading with reservation Indians on the reservation the state tax was invalid as (1) in violation of Art. I, § 8, cl. 3, of the United States Constitution, which provides that 'Congress shall have Power * * * To regulate Commerce * * * with the Indian Tribes'; (2) inconsistent with the comprehensive congressional plan, enacted under authority of Art. I, § 8, to regulate Indian trade and traders and to have Indian tribes on reservations govern themselves. The State Supreme Court rejected these contentions and upheld the tax, one Justice dissenting. 95 Ariz. 110, 387 P.2d 809. The case is properly here on appeal under 28 U.S.C. § 1257(2) (1958 ed.). Since we hold that this state tax cannot be imposed consistently with federal statutes applicable to the Indians on the Navajo Reservation, we find it unnecessary to consider whether the tax is also barred by that part of the Commerce Clause giving Congress power to regulate commerce with the Indian tribes.
2
The Navajo Reservation was set apart as a 'permanent home' for the Navajos in a treaty made with the 'Navajo nation or tribe of Indians' on June 1, 1868.2 Long before that, in fact from the very first days of our Government, the Federal Government had been permitting the Indians largely to govern themselves, free from state interference,3 and had exercised through statutes and treaties4 a sweeping and dominant control over persons who wished to trade with Indians and Indian tribes. As Chief Justice John Marshall recognized in Worcester v. Georgia, 6 Pet. 515, 556—557, 8 L.Ed. 483:
3
'From the commencement of our government, congress has passed acts to regulate trade and intercourse with the Indians; which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate.'
He went on to say that:
4
'The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be carried on exclusively by the government of the union.' Id., at 557, 8 L.Ed. 483.
5
See also, e.g., United States v. Forty-three Gallons v. Whiskey, 93 U.S. 188, 23 L.Ed. 846. In the very first volume of the federal statutes is found an Act, passed in 1790 by the first Congress, 'to regulate trade and intercourse with the Indian tribes,' requiring that Indian traders obtain a license from a federal official, and specifying in detail the conditions on which such licenses would be granted.5
6
Such comprehensive federal regulation of Indian traders has continued from that day to this.6 Existing statutes make specific restrictions on trade with the Indians,7 and one of them, passed in 1876 and tracing back to comprehensive enactments of 18028 and 1834,9 provides that the Commissioner of Indian Affairs shall have 'the sole power and authority to appoint traders to the Indian tribes' and to specify 'the kind and quantity of goods and the prices at which such goods shall be sold to the Indians.'10 Acting under authority of this statute and one added in 1901,11 the Commissioner has promulgated detailed regulations prescribing in the most minute fashion who may qualify to be a trader and how he shall be licensed; penalties for acting as a trader without a license; conditions under which government employees may trade with Indians; articles that cannot be sold to Indians; and conduct forbidden on a licensed trader's premises.12 He has ordered that detailed business records be kept and that government officials be allowed to inspect these records to make sure that prices charged are fair and reasonable; that traders pay Indians in money; that bonds be executed by proposed licensees; and that the governing body of an Indian reservation may assess from a trader 'such fees, etc., as it may deemappropriate.'13 It was under these comprehensive statutes and regulations that the Commissioner of Indian Affairs licensed appellant to trade with the Indians on the Navajo Reservation. These apparently all-inclusive regulations and the statutes authorizing them would seem in themselves sufficient to show that Congress has taken the business of Indian trading on reservations so fully in hand that no room remains for state laws imposing additional burdens upon traders.14 In fact, the Solicitor's Office of the Department of the Interior in 194015 and again in 194316 interpreted these statutes to bar States from taxing federally licensed Indian traders on their sales to reservation Indians on a reservation. We think those rulings were correct.
7
Congress has, since the creation of the Navajo Reservation nearly a century ago, left the Indians on it largely free to run the reservation and its affairs without state control, a policy which has automatically relieved Arizona of all burdens for carrying on those same responsibilities. And in compliance with its treaty obligations the Federal Government has provided for roads, education and other services needed by the Indians.17 We think the assessment and collection of this tax would to a substantial extent frustrate the evident congressional purpose of ensuring that no burden shall be imposed upon Indian traders for trading with Indians on reservations except as authorized by Acts of Congress or by valid regulations promulgated under those Acts. This state tax on gross income would put financial burdens on appellant or the Indians with whom it deals in addition to those Congress or the tribes have prescribed, and could thereby disturb and disarrange the statutory plan Congress set up in order to protect Indians against prices deemed unfair or unreasonable by the Indian Commissioner. And since federal legislation has left the State with no duties or responsibilities respecting the reservation Indians, we cannot believe that Congress intended to leave to the State the privilege of levying this tax.18 Insofar as they are applied to this federally licensed Indian trader with respect to sales made to reservation Indians on the reservation, tese state laws imposing taxes cannot stand. Cf. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447. The judgment of the Supreme Court of Arizona is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
8
Reversed and remanded.
1
Ariz.Rev.Stat. §§ 42—1309, 42—1312. The tax is applicable to 'every person engaging or continuing within this state in the business of selling any tangible personal property whatever at retail,' with stated exceptions. Ariz.Rev.Stat. § 42—1312. Appellant's challenge to these statutes is limited to the State's attempt to apply them to gross income from sales made on the reversation to reservation Indians.
2
15 Stat. 667.
3
Arizona was admitted to the Union on its agreement that
'the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to * * * all lands lying within said boundaries owned or held by any Indian or Indian tribes, the right or title to which shall have been acquired through or from the United States or any prior sovereignty, and that until the title of such Indian or Indian tribes shall have been extinguished the same shall be and remain subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States * * *.' Act of June 20, 1910, 36 Stat. 557, 569. See also Act of Aug. 21, 1911, 37 Stat. 39.
Certain state laws have been permitted to apply to activities on Indian reservations, where those laws are specifically authorized by acts of Congress, or where they clearly do not interfere with federal policies concerning the reservations. See Organized Village of Kake v. Egan, 369 U.S. 60, 72—75, 82 S.Ct. 562, 570, 7 L.Ed.2d 573; Williams v. Lee, 358 U.S. 217, 219—221, 79 S.Ct. 269, 270—271, 3 L.Ed.2d 251; Thomas v. Gay, 169 U.S. 264, 18 S.Ct. 340, 42 L.Ed. 740; Utah & N.R. Co. v. Fisher, 116 U.S. 28, 31—32, 6 S.Ct. 246, 247—248, 29 L.Ed. 542. Compare, e.g., 18 U.S.C. § 1161 (1958 ed.) (permitting application of state liquor law standards within an Indian reservation under certain conditions); 45 Stat. 1185, as amended, 25 U.S.C. § 231 (1958 ed.) (permitting application of state health and education laws within a reservation under certain conditions); 18 U.S.C. § 1162 (1958 ed.) and 28 U.S.C. § 1360 (1958 ed.) (respectively granting certain States criminal and civil jurisdiction over offenses and causes of action involving Indians within specified Indian reservations).
4
In 1778, in its first treaty with an Indian tribe, the United States promised to provide for the Delaware Nation
'a well-regulated trade, under the conduct of an intelligent, candid agent, with an adequate sallery, one more influenced by the love of his country, and a constant attention to the duties of his department by promoting the common interest, than the sinister purposes of converting and binding all the duties of his office to his private emolument * * *.' Treaty of Sept. 17, 1778, Art. V, 7 Stat. 13, 14. Similar provisions were found in other early treaties, concluded before the first Congress legislated on the subject of Indian trade. See United States Department of the Interior, Federal Indian Law 96 (hereafter cited as Federal Indian Law). In 1871 Congress forbade future treaties with the Indian tribes but left the obligations of existing treaties unimpaired. 16 Stat. 544, 566, now 25 U.S.C. § 71 (1958 ed.).
5
Act of July 22, 1790, 1 Stat. 137.
6
See generally Federal Indian Law 94—138, 373—381.
7
E.g., 4 Stat. 729, now 25 U.S.C. § 263 (1958 ed.) (empowering the President in the public interest to forbid introduction of any or all goods into the territory of a tribe, and to revoke and refuse all licenses to trade with that tribe); 4 Stat. 729, as amended, now 25 U.S.C. § 264 (1958 ed.) (establishing penalties for trading without a license and forbidding traders to hire white persons as clerks unless licensed to do so); 18 U.S.C. § 3113 (1958 ed.) (forbidding unlawful introduction of liquor into Indian country and providing for revocation of the license of any trader violating this prohibition).
8
Act of March 30, 1802, 2 Stat. 139.
9
Act of June 30, 1834, 4 Stat. 729.
10
19 Stat. 200, 25 U.S.C. § 261 (1958 ed.), provides:
'The Commissioner of Indian Affairs shall have the sole power and authority to appoint traders to the Indian tribes and to make such rules and regulations as he may deem just and proper specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians.'
11
31 Stat. 1066, as amended, 25 U.S.C. § 262 (1958 ed.), provides:
'Any person desiring to trade with the Indians on any Indian reservation shall, upon establishing the fact, to the satisfaction of the Commissioner of Indian Affairs, that he is a proper person to engage in such trade, be permitted to do so under such rules and regulations as the Commissioner of Indian Affairs may prescribe for the protection of said Indians.'
12
25 CFR §§ 251.9, 252.6, 251.3, 252.3, 251.5, 251.8, 251.18, 251.19, 251.21, 252.15.
13
25 CFR §§ 252.7, 251.22, 251.24, 251.10, 252.9, 252.27c. See generally 25 CFR §§ 251, 252.
14
These statutes and regulations apply only to activities on reservations. See Taylor v. United States, 44 F.2d 531 (C.A.9th Cir.), cert. denied, 283 U.S. 820, 51 S.Ct. 345, 75 L.Ed. 1436; 57 I.D. 124, 125.
15
57 I.D. 124.
16
58 I.D. 562.
17
Since 1950 Congress has authorized expenditure of over $100,000,000 as part of an extensive plan to rehabilitate the Navajo and Hopi tribes of Arizona. 64 Stat. 44, as amended, 25 U.S.C. §§ 631—640 (1958 ed.). Detailed accounts of the ways in which the Federal Government has aided and supported the Navajos and other tribes may be found in Secretary of the Interior, Annual Report, 1963, pp. 11—47; id., 1962, pp. 7—44; id., 1961, pp. 277 318. See also Federal Indian Law 268—306; Young, the Navajo Yearbook, Report No. viii, 1951—1961, A Decade of Progress (1961).
18
The Buck Act, now 4 U.S.C. §§ 105—110 (1964 ed.), in which Congress permitted States to levy sales or use taxes within certain federal areas, has been interpreted by what appears to be the only court to consider the question before this case, and by the Interior Department, as not applying to Indian reservations. Your Food Stores, Inc. v. Village of Espanola, 68 N.M. 327, 334, 361 P.2d 950, 955—956; 58 I.D. 562. Cf. 4 U.S.C. § 109 (1964 ed.), excepting taxes on Indians from the scope of the Act. We think that interpretation was correct. See S.Rep. No. 1625, 76th Cong., 3d Sess., 2, 3. Moreover, we hold that Indian traders trading on a reservation with reservation Indians are immune from a state tax like Arizona's, not simply because those activities take place on a reservation, but rather because Congress in the exercise of its power granted in Art. I, § 8, has undertaken to regulate reservation trading in such a comprehensive why that there is no room for the States to legislate on the subject. Cf. Surplus Trading Co. v. Cook, 281 U.S. 647, 651, 50 S.Ct. 455, 456, 74 L.Ed. 1091. Even assuming that the Arizona tax here is of a kind to which the Buck Act applies, nothing whatever in that Act suggests to us that Congress meant to give States new power to tax federally licensed Indian traders. See 58 I.D. 562.
| 12
|
380 U.S. 693
85 S.Ct. 1246
14 L.Ed.2d 170
ONE 1958 PLYMOUTH SEDAN, Petitioner,v.COMMONWEALTH OF PENNSYLVANIA.
No. 294.
Argued March 31, 1965.
Decided April 29, 1965.
Standord Shmukler, Philadelphia, Pa., (Louis Lipschitz, Jerold G. Klevit, and Lipschitz & Chalfin, Philadelphia, Pa., with him on the brief), for petitioner.
Thomas J. Shannon, Asst. Atty. Gen., Harrisburg, Pa., for respondent.
Mr. Justice GOLDBERG delivered the opinion of the Court.
1
At approximately 6:30 a.m. on December 16, 1960, two law enforcement officers of the Pennsylvania Liquor Control Board stationed near Camden, New Jersey, at the approach to the Benjamin Franklin Bridge, observed a 1958 Plymouth sedan bearing Pennsylvania license plates proceeding toward the bridge in the direction of Philadelphia, Pennsylvania. The officers, noting that '(t)he car was low in the rear, quite low,' followed it across the bridge into Philadelphia. They stopped the automobile a short distance within the city, identified themselves and questioned the owner, George McGonigle. The officers then searched the car and, in the rear and the trunk, found 31 cases of liquor not bearing Pennsylvania tax seals. The car and liquor were seized and McGonigle was arrested and charged with violation of Pennsylvania law.1 The officers did not have either a search or arrest warrant.
2
Pursuant to a Pennsylvania statute2 the Commonwealth filed a petition for forfeiture of the automobile.3 At the hearing, McGonigle, by timely objection, sought dismissal of the forfeiture petition on the ground that the forfeiture of the automobile depended upon the admission of evidence illegally obtained in violation of the Fourth Amendment to the Constitution as applied to the States by the Fourteenth Amendment. The trial court sustained this position and dismissed the forfeiture petition. In doing so, the trial judge made a specific finding that '(t)he seizure was founded upon evidence illegally obtained, since under the particular circumstances the officers acted without probable cause.'4 The Superior Court of Pennsylvania, an intermediate appellate court, by a 4-to-3 decision reversed the order dismissing the petition and directed that the automobile be forfeited. 199 Pa.Super. 428, 186 A.2d 52. The Supreme Court of Pennsylvania affirmed the order of the Superior Court, one judge dissenting. 414 Pa. 540, 201 A.2d 427.
3
The basis of the Pennsylvania Supreme Court's decision was that the exclusionary rule, which this Court in Mapp v. Ohio, 367 U.S. 643, 657, 81 S.Ct. 1684, 1693, 6 L.Ed.2d 1081, held 'is an essential part of both the Fourth and Fourteenth Amendments,' applies only to criminal prosecutions and is not applicable in a forfeiture proceeding which the Pennsylvania court deemed civil in nature. In light of this disposition of the case, the State Supreme Court did not review the trial court's finding of lack of probable cause, stating:
4
'The thrust of the arguments, both of the appellant and the Commonwealth, is directed to the validity and propriety of the search and the subsequent seizure by the officers of this Plymouth automobile. In our view, such arguments are beyond the point. By reason of the nature of the present proceeding, i.e., a forfeiture procedure, we consider it unnecessary to determine the propriety and validity of the search and the seizure of this automobile.' 414 Pa., at 542; 201 A.2d, at 429.
5
We granted certiorari, 379 U.S. 927, 85 S.Ct. 323, 13 L.Ed.2d 340, to consider the important question of whether the constitutional exclusionary rule enunciated in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, and Mapp applies to forfeiture proceedings of the character involved here—a question on which there has been conflict in both state and federal decisions.5 For the reasons set forth below, we hold that the constitutional exclusionary rule does apply to such forfeiture proceedings and consequently reverse the judgment of the Pennsylvania Supreme Court.
6
As this Court has acknowledged, '(t)he leading case on the subject of search and seizure is Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746.' Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 283, 69 L.Ed. 543. See Mapp v. Ohio, supra, 367 U.S. at 646—647, 81 S.Ct. at 1686—1687. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, itself was not a criminal case but was a proceeding by the United States to forfeit 35 cases of plate glass which had allegedly been imported without payment of the customs duty. The District Judge in the case entered an order compelling the owners of the plate glass to produce certain record which would aid the United States in proving its case for forfeiture. The question before the Court in Boyd was whether the compulsory production of a man's private papers for their evidentiary use against him in a proceeding to forfeit his property for alleged fraud against the revenue laws constituted an unreasonable search and seizure within the meaning of the Fourth Amendment of the Constitution. In holding that the Fourth Amendment applied and barred such attempted seizure, Mr. Justice Bradley, for the Court stated:
7
'We are also clearly of opinion that proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal. In this very case the ground of forfeiture as declared in the twelfth section of the act of 1874, on which the information is based, consists of certain acts of fraud committed against the public revenue in relation to imported merchandise, which are made criminal by the statute; and it is declared, that the offender shall be fined not exceeding $5,000, nor less than $50, or be imprisoned not exceeding two years, or both; and in addition to such fine such merchandise shall be forfeited. These are the penalties affixed to the criminal acts, the forfeiture sought by this suit being one of them. If an indictment had been presented against the claimants, upon conviction the forfeiture of the goods could have been included in the judgment. If the government prosecutor elects to waive an indictment, and to file a civil information against the claimants,—that is, civil in form,—can he by this device take from the proceeding its criminal aspect and deprive the claimants of their immunities as citizens, and extort from them a production of their private papers, or, as an alternative, a confession of guilt? This cannot be. The information, though technically a civil proceeding, is in substance and effect a criminal one. * * * As, therefore, suits for penalties and forfeitures incurred by the commission of offenses against the law, are of this quasi criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the fourth amendment of the constitution * * *.' Boyd v. United States, supra, 116 U.S. at 633—634, 6 S.Ct. at 534.
8
This authoritative statement and the holding by the Court in Boyd that the Government could not seize evidence in violation of the Fourth Amendment for use in a forfeiture proceeding would seem to be dispositive of this case. The Commonwealth, however, argues that Boyd is factually distinguishable as it involved a subpoena sought by the Government for the production of evidence whereas the issue here is the admissibility of illegally seized evidence already in the Government's possession. Although there is this factual difference between Boyd and the case at bar, nevertheless the basic holding of Boyd applies with equal, if not greater, force to the case before us. In both the Boyd situation and here the essential question is whether evidence—in Boyd the books and records, here the results of the search of the car—the obtaining of which violates the Fourth Amendment may be relied upon to sustain a forfeiture. Boyd holds that it may not.
9
The Commonwealth further argues that Boyd's unequivocal statement that the Fourth Amendment applies to forfeiture proceedings as well as criminal prosecutions has been undermined by the statements of this Court in United States v. Jeffers, 342 U.S. 48, 54, 72 S.Ct. 93, 96, 96 L.Ed. 59, and Trupiano v. United States, 334 U.S. 699, 710, 68 S.Ct. 1229, 1234—1235, 92 L.Ed. 1663. Jeffers and Trupiano, unlike Boyd, were not forfeiture cases. They were federal criminal prosecutions. In both cases the Court held that evidence seized in violation of the Fourth Amendment was not admissible notwithstanding the fact that the evidence involved was contraband. By way of dictum, however, since the point was not before it, the Court stated in these cases that its ruling that the contraband was excludable as illegally seized did not mean that the Government was required to return the illegally imported narcotics to Jeffers or the unregistered still, alcohol and mash to Trupiano.
10
The nature of the contraband involved in these cases clearly explains these statements of the Court. Both Trupiano and Jeffers concerned objects the possession of which, without more, constitutes a crime.6 The repossession of such per se contraband by Jeffers and Trupiano would have subjected them to criminal penalties. The return of the contraband would clearly have frustrated the express public policy against the possession of such objects. See United States v. Jeffers, supra, 342 U.S. at 53 54, 72 S.Ct. at 96.
11
It is apparent that the nature of the property here, though termed contraband by Pennsylvania, is quite different. There is nothing even remotely criminal in possessing an automobile. It is only the alleged use to which this particular automobile was put that subjects Mr. McGonigle to its possible loss. And it is conceded here that the Commonwealth could not establish an illegal use without using the evidence resulting from the search which is challenged as having been in violation of the Constitution. Furthermore, the return of the automobile to the owner would not subject him to any possible criminal penalties for possession or frustrate any public policy concerning automobiles, as automobiles. This distinction between what has been described as contraband per se and only derivative contraband has indeed been recognized by Pennsylvania itself in its requirement of mandatory forfeiture of illegal liquor, and stills, and only discretionary forfeiture of such things as automobiles illegally used. See Purdon's Pa.Stat.Ann., Tit. 47, § 6—602(e) (1964 Cum.Supp.). We, therefore, do not have a case before us in any way analogous to the contraband involved in Jeffers and Trupiano and these cases can in no way be deemed to impair the continued validity of Boyd which, like this case, involved property not intrinsically illegal in character.7
12
Finally as Mr. Justice Bradley aptly pointed out in Boyd, a forfeiture proceeding is quasi-criminal in character. Its object, like a criminal proceeding, is to penalize for the commission of an offense against the law. In this case McGonigle, the driver and owner of the automobile, was arrested and charged with a criminal offense against the Pennsylvania liquor laws. The record does not disclose which particular offense or offenses he was charged with committing.8 If convicted of any one of the possible offenses involved, however, he would be subject, if a first offender, to a minimum penalty of a $100 fine and a maximum penalty of a $500 fine.9 In this forfeiture proceeding he was subject to the loss of his automobile, which at the time involved had an estimated value of approximately $1,000,10 a higher amount than the maximum fine in the criminal proceeding. It would be anomalous indeed, under these circumstances, to hold that in the criminal proceeding the illegally seized evidence is excludable, while in the forfeiture proceeding, requiring the determination that the criminal law has been violated, the same evidence would be admissible.11 That the forfeiture is clearly a penalty for the criminal offense and can result in even greater punishment than the criminal prosecution has in fact been recognized by the Pennsylvania courts. In Commonwealth v. One 1959 Chevrolet Impala Coupe, involving a forfeiture in 1962, the Pennsylvania Superior Court in affirming the exercise of discretion to waive a forfeiture following a criminal prosecution, stated:
13
'It seemed to the court below that to make this man pay the sum of $500.00 in fines, together with the costs of the proceeding and the storage cost for the automobile, was sufficient punishment under all the circumstances. To forfeit a 1959 Chevrolet Impala coupe in addition to the above seemed to the court below to be entirely out of proportion to the crime involved. We cannot say that the court below abused its discretion in so acting.' 201 Pa.Super. 145, 150, 191 A.2d 717, 719.
14
In sum, we conclude that the nature of a forfeiture proceeding, so well described by Mr. Justice Bradley in Boyd, and the reasons which led the Court to hold that the exclusionary rule of Weeks v. United States, supra, is obligatory upon the States under the Fourteenth Amendment, so well articulated by Mr. Justice Clark in Mapp, support the conclusion that the exclusionary rule is applicable to forfeiture proceedings such as the one involved here. This being the case, the judgment of the Pennsylvania Supreme Court must be reversed. Our holding frees the Pennsylvania court on remand to review the trial court's finding that the officials did not in this case have probable cause for the search involved, a question which it previously did not consider necessary to decide.12
15
The judgment of the Supreme Court of Pennsylvania is reversed and the cause is remanded for proceedings not inconsistent with this opinion.
16
It is so ordered.
17
Reversed and remanded.
18
Mr. Justice BLACK, concurring.
19
The language of the Fourth Amendment forbids 'unreasonable searches and seizures' but it does not expressly or by implication provide that evidence secured in such a way cannot be used in a prosecution against an accused. Congress could, of course, pass a law to preclude the use of evidence so secured in the federal courts, but I do not believe this Court or any other has constitutional power to pass such a law itself. See Wolf v. People of State of Colorado, 338 U.S. 25, 39, 69 S.Ct. 1359, 1367, 93 L.Ed. 1782 (concurring opinion). For these reasons I cannot agree that because we ourselves might believe the practice of obtaining evidence in that manner 'shocks the conscience' or is 'shabby' or 'arbitrary,' we are commanded or even authorized by the Constitution to prevent its use as evidence. That seems to me to be amending the Constitution, which is the business of the people, not interpreting it, which is the business of the courts. But the Fifth Amendment does specifically provide that 'No person * * * shall be compelled in any criminal case to be a witness against himself,' and this Court held in Boyd v. United States, 116 U.S. 616, 634—635, 6 S.Ct. 524, 534—535, 29 L.Ed. 746, that 'a compulsory production of the private books and papers of the owner of goods sought to be forfeited in * * * a suit is compelling him to be a witness against himself, within the meaning of the fifth amendment to the constitution, and is the equivalent of a search and seizure—and an unreasonable search and seizure—within the meaning of the fourth amendment.' Boyd therefore stands for the constitutional principle that evidence secured by unreasonable search and seizure is compelled evidence, and is therefore barred from use in criminal cases by the Fifth Amendment's provision that 'No person * * * shall be compelled in any criminal case to be a witness against himself * * *.' See Rochin v. People of California, 342 U.S. 165, 174, 72 S.Ct. 205, 211, 96 L.Ed. 183 (concurring opinion). The Court in Boyd thus based its exclusion of unlawfully seized evidence squarely on the specific prohibitions of the Fourth and Fifth Amendments, and not merely on the personal predilections of judges against such use.
20
This Court in Mapp v. Ohio, 367 U.S. 643, 646, 81 S.Ct. 1684, 1686, 6 L.Ed.2d 1081, recognized as the Court had in Boyd that 'the fourth and fifth amendments run almost into each other.' 116 U.S., at 630, 6 S.Ct., at 532. At the very outset of its opinion in Mapp this Court relied on and quoted at length from the opinion in the Boyd case, which had relied on the Fourth and Fifth Amendments together to forbid the use in court of evidence obtained through an unreasonable search or seizure. 367 U.S., at 646—647, 81 S.Ct. at 1686—1687. Use of such evidence, the Court said in Mapp, would be 'tantamount to coerced testimony.' 367 U.S., at 656, 81 S.Ct., at 1692. And we said last Term in Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1494, 12 L.Ed.2d 653:
21
'Mapp held that the Fifth Amendment privilege against self-incrimination implemented the Fourth Amendment in such cases, and that the two guarantees of personal security conjoined in the Fourteenth Amendment to make the exclusionary rule obligatory on the States. We relied upon the great case of Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 * * *.'
22
It was because of the Court's reliance on the Boyd doctrine which held that the Fourth and Fifth Amendments together barred use of unreasonably seized evidence—that I joined the Court's opinion in Mapp. See 367 U.S. 643, 661, 81 S.Ct. 1684, 1694 (concurring opinion). And for that same reason I agree with the Court today that the Fourth Amendment's protection against unlawful search and seizure and the Fifth Amendment's protection against compelled testimony apply in forfeiture proceedings like the one here. This was the holding in Boyd, which itself involved a forfeiture proceeding, and I would follow it in forfeiture proceedings as well as in criminal cases. In doing so, I recognize that this interpretation was reached in Boyd on the principle that 'constitutional provisions for the security of person and property should be liberally construed.' 116 U.S., at 635, 6 S.Ct., at 535. But that interpretive principle, I think, is a desirable one if our Constitution is to be given its proper place in our Government.
23
I also agree with the Court that our remand expresses no view as to whether the trial court was correct in its ruling on the issue of probable cause, and that the Supreme Court of Pennsylvania is free on remand to review the trial court's finding, and that of course, as declared in Mapp, the standard of probable cause is the same in the state courts as in the federal courts.
1
See note 9, infra, and accompanying text.
2
Surdon's Pa.Stat.Ann. Tit. 47, § 6—601 (1964 Cum.Supp.), which provides in pertinent part:
'No property rights shall exists in any liquor, alcohol or malt or brewed beverage illegally manufactured or possessed, or in any still, equipment, material, utensil, vehicle, boat, vessel, animals or aircraft used in the illegal manufacture or illegal transportation of liquor, alcohol or malt or brewed beverages, and the same shall be deemed contraband and proceedings for its forfeiture to the Commonwealth may, at the discretion of the board, be instituted in the manner hereinafter provided.'
3
A separate petition was filed for the forfeiture of the liquor which was upheld by the trial court. No appeal was taken from this order.
4
The trial court's decision is unreported.
5
See Commonwealth v. One 1958 Plymouth Sedan, 414 Pa. 540, 201 A.2d 427; Berkowitz v. United States, 340 F.2d 168 (C.A.1st Cir.); United States v. $5,608.30 in United States Coin and Currency, 326 F.2d 359 (C.A.7th Cir.); United States v. $1,058.00 in United States Currency, 323 F.2d 211 (C.A.3d Cir.); United States v. Carey, 272 F.2d 492 (C.A.5th Cir.); United States v. One 1956 Ford Tudor Sedan, 253 F.2d 725 (C.A.4th Cir.); United States v. Physic, 175 F.2d 338 (C.A.2d Cir.); United States v. Butler, 156 F.2d 897 (C.A.10th Cir.); United States v. One 1963 Cadillac Hardtop, 220 F.Supp. 841 (D.C.E.D.Wis.). See also Cleary v. Bolger, 371 U.S. 392, 401, 403, 83 S.Ct. 385, 390, 391, 9 L.Ed.2d 390 (concurring opinion).
6
See, as to Trupiano, Internal Revenue Code of 1939, §§ 2803(a), 2810(a), 53 Stat. 303, 308; as to Jeffers, Internal Revenue Code of 1939, § 2553(a), 53 Stat. 271; Narcotic Drugs Import and Export Act, 42 Stat. 596, 21 U.S.C. § 174 (1958 ed.).
7
Nor has the continued validity of Boyd been in any way impaired by the decisions of this Court in United States v. One Ford Coupe Automobile, 272 U.S. 321, 47 S.Ct. 154, 71 L.Ed. 279, or Dodge v. United States, 272 U.S. 530, 47 S.Ct. 191, 71 L.Ed. 392. The question involved in both of these cases was not the introduction of evidence seized in violation of the Constitution but that of whether evidence seized by one without statutory authority could be used when its seizure was later ratified by an official with statutory authority. Indeed in Dodge v. United States, supra, at 532, 47 S.Ct. at 192, Mr. Justice Holmes, for the Court, expressly recognized that the case did not involve exclusion of evidence obtained by an unlawful search and seizure and stated:
'The exclusion of evidence obtained by an unlawful search and seizure stands on a different ground. If the search and seizure are unlawful as invading personal rights secured by the Constitution those rights would be infringed yet further if the evidence were allowed to be used.'
8
Under Pennsylvania law on the alleged facts of this case, McGonigle presumably could have been charged with violating one or more of the following subsections of Purdon's Pa.Stat.Ann. Tit. 47, § 4—491: (2) possession or transport of liquor that has not been purchased from a Pennsylvania Liquor Store; (4) possession of untaxed liquor; (11) illegal importation of liquor into the Commonwealth.
9
Purdon's Pa.Stat.Ann. Tit. 47, § 4—494(a) (1964 Cum.Supp.) provides:
'Any person who shall violate any of the provisions of this article, except as otherwise specifically provided, shall be guilty of a misdemeanor and, upon conviction thereof, shall be sentenced to pay a fine of not less than one hundred dollars ($100), nor more than five hundred dollars ($500), and on failure to pay such fine, to imprisonment for not less than one month, nor more than three months, and for any subsequent offense, shall be sentenced to pay a fine not less than three hundred dollars ($300), nor more than five hundred dollars ($500), and to undergo imprisonment for a period not less than three months, nor more than one year.'
10
See National Market Reports, Inc., Red Book, Jan. 1—Feb. 14, 1961, Region A, 114.
11
This Court in Boyd v. United States, supra, 116 U.S. at 638, 6 S.Ct. at 536, rejected any argument that the technical character of a forfeiture as an in rem proceeding against the goods had any effect on the right of the owner of the goods to assert as a defense violations of his constitutional rights. The Court stated:
'(A)lthough the owner of goods, sought to be forfeited by a proceeding in rem, is not the nominal party, he is, nevertheless, the substantial party to the suit; he certainly is so, after making claim and defense; and, in a case like the present, he is entitled to all the privileges which appertain to a person who is prosecuted for a forfeiture of his property by reason of committing a criminal offense.'
12
The applicable standard of what constitutes probable cause, as stated by MR. JUSTICE CLARK for the Court in Ker v. State of California, 374 U.S. 23, 33, 83 S.Ct. 1623, 10 L.Ed.2d 726, 'is the same under the Fourth and Fourteenth Amendments.' Cf. Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134; Carroll v. United States, 267 U.S. 132, 153—154, 45 S.Ct. 280, 285, 69 L.Ed. 543.
| 01
|
380 U.S. 678
85 S.Ct. 1238
14 L.Ed.2d 159
COMMISSIONER OF INTERNAL REVENUE, Petitioner.v.ESTATE of Marshal L. NOEL, Deceased, William H. Frantz and Ruth M. Noel, Executors.
No. 503.
Argued April 1, 1965.
Decided April 29, 1965.
John B. Jones, Jr., Washington, D.C., for petitioner.
Harry Norman Ball, Philadelphia, Pa., for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
This is a federal estate tax case, raising questions under § 2042(2) of the Internal Revenue Code of 1954, 26 U.S.C. § 2042(2) (1958 ed.), which requires inclusion in the gross estate of a decedent of amounts received by beneficiaries other than the executor from 'insurance under policies on the life of the decedent' if the decedent 'possessed at his death any of the incidents of ownership, exercisable either alone or in conjunction with any other person. * * *'1 The questions presented in this case are whether certain flight insurance policies payable upon the accidental death of the insured were policies 'on the life of the decedent' and whether at his death he had reserved any of the 'incidents of ownership' in the policies.
2
These issues emerge from the following facts. Respondent Ruth M. Noel drove her husband from their home to New York International Airport where he was to take an airplane to Venezuela. Just before taking off, Mr. Noel signed applications for two round-trip flight insurance policies, aggregating $125,000 and naming his wife as beneficiary. Mrs. Noel testified that she paid the premiums of $2.50 each on the policies and that her husband then instructed the sales clerk to 'give them to my wife. They are hers now, I no longer have anything to do with them.' The clerk gave her the policies, which she kept. Less than three hours later Mr. Noel's plane crashed into the Atlantic Ocean and he and all others aboard were killed. Thereafter the companies paid Mrs. Noel the $125,000 face value of the policies, which was not included in the estate tax return filed by his executors. The Commissioner of Internal Revenue determined that the proceeds of the policies should have been included and the Tax Court sustained that determination, holding that the flight accident policies were insurance 'on the life of the decedent'; that Mr. Noel had possessed exercisable 'incidents of ownership' in the policies at his death; and that the $125,000 paid to Mrs. Noel as beneficiary was therefore includable in the gross estate. 39 T.C. 466. Although agreeing that decedent's reserved right to assign the policies and to change the beneficiary amounted to 'exercisable incidents of ownership within the meaning of the statute,' the Court of Appeals nevertheless reversed, holding that given 'its ordinary, plain and generally accepted meaning,' the statutory phrase 'policies on the life of the decedent' does not apply to insurance paid on account of accidental death under policies like those here. 332 F.2d 950. The court's reason for drawing the distinction was that under a life insurance contract an insurer 'agrees to pay a specified sum upon the occurrence of an inevitable event,' whereas accident insurance covers a risk 'which is evitable and not likely to occur.' (Emphasis supplied.) 332 F.2d, at 952. Because of the importance of an authoritative answer to these questions in the administration of the estate tax laws, we granted certiorari to decide them. 379 U.S. 927, 85 S.Ct. 330, 13 L.Ed.2d 340.
I.
3
In 1929, 36 years ago, the Board of Tax Appeals, predecessor to the Tax Court, held in Ackerman v. Commissioner, 15 B.T.A. 635, that 'amounts received as accident insurance' because of the death of the insured were includable in the estate of the deceased.2 The Board of Tax Appeals recognized that 'there is a distinction between life insurance and accident insurance, the former insuring against death in any event and the latter * * * against death under certain contingencies * * *.' The Court of Appeals in the case now before us considered this distinction between an 'inevitable' and an 'evitable' event to be of crucial significance under the statute. The Board of Tax Appeals in Ackerman did not, stating 'we fail to see why one is not taken out upon the life of the policy-holder as much as the other. In each case the risk assumed by the insurer is the loss of the insured's life, and the payment of the insurance money is contingent upon the loss of life.' This view of the Board of Tax Appeals is wholly consistent with the language of the statute itself which makes no distinction between 'policies on the life of the decedent' which are payable in all events and those payable only if death comes in a certain way or within a certain time. Even were the statutory language less clear, since the Board of Tax Appeals' Ackerman case it has been the settled and consistent administrative practice to include insurance proceeds for accidental death under policies like these in the estates of decedents. The Treasury Regulations remain unchanged from the time of the Ackerman decision3 and from that day to this Congress has never attempted to limit the scope of that decision or the established administrative construction of § 2042(2), although it has re-enacted that section and amended it in other respects a number of times.4 We have held in many cases that such a longstanding administrative interpretation, applying to a substantially re-enacted statute, is deemed to have received congressional approval and has the effect of law. See, e.g., National Lead Co. v. United States, 252 U.S. 140, 146, 40 S.Ct. 237, 239, 64 L.Ed. 496; United States v. Dakota-Montana Oil Co., 288 U.S. 459, 466, 53 S.Ct. 435, 438, 77 L.Ed. 893. We hold here that these insurance policies, whether called 'flight accident insurance' or 'life insurance,' were in effect insurance taken out on the 'life of the decedent' within the meaning of § 2042(2).
II.
4
The executors' second contention is that even if these were policies 'on the life of the decedent,' Mrs. Noel owned them completely, and the decedent therefore possessed no exercisable incident of ownership in them at the time of his death so as to make the proceeds includable in his estate. While not clearly spelled out, the contention that the decedent reserved no incident of ownership in the policies rests on three alternative claims: (a) that Mrs. Noel purchased the policies and therefore owned them; (b) that even if her husband owned the policies, he gave them to her, thereby depriving himself of power to assign the policies or to change the beneficiary; and (c) even assuming he had contractual power to assign the policies or make a beneficiary change, this power was illusory as he could not possibly have exercised it in the interval between take-off and the fatal crash in the Atlantic.
5
(a) The contention that Mrs. Noel bought the policies and therefore owned them rests solely on her testimony that she furnished the money for their purchase, intending thereby to preserve her right to continue as beneficiary. Accepting her claim that she supplied the money to buy the policies for her own benefit (which the Tax Court did not decide), what she bought nonetheless were policy contracts containing agreements between her husband and the companies. The contracts themselves granted to Mr. Noel the right either to assign the policies or to change the beneficiary without her consent. Therefore the contracts she bought by their very terms rebut her claim that she became the complete, unconditional owner of the policies with an irrevocable right to remain the beneficiary.
6
(b) The contention that Mr. Noel gave or assigned the policies to her and therefore was without power thereafter to assign them or to change the beneficiary stands no better under these facts. The contract terms provided that these policies could not be assigned nor could the beneficiary be changed without a written endorsement on the policies. No such assignment or change of beneficiary was endorsed on these policies, and consequently the power to assign the policies or change the beneficiary remained in the decedent at the time of his death.
7
(c) Obviously, there was no practical opportunity for the decedent to assign the policies or change the beneficiary between the time he boarded the plane and the time he died. That time was too short and his wife had the policies in her possession at home. These circumstances disabled him for the moment from exercising those 'incidents of ownership' over the policies which were undoubtedly his. Death intervened before this temporary disability was removed. But the same could be said about a man owning an ordinary life insurance policy who boarded the plane at the same time or for that matter about any man's exercise of ownership over his property while aboard an airplane in the three hours before a fatal crash. It would stretch the imagination to think that Congress intended to measure estate tax liability by an individual's fluctuating, day-by-day, hour-by-hour capacity to dispose of property which he owns. We hold that estate tax liability for policies 'with respect to which the decedent possessed at his death any of the incidents of ownership' depends on a general, legal power to exercise ownership, without regard to the owner's ability to exercise it at a particular moment. Nothing we have said is to be taken as meaning that a policyholder is without power to divest himself of all incidents of ownership over his insurance policies by a proper gift or assignment, so as to bar its inclusion in his gross estate under § 2042(2). What we do hold is that no such transfer was made of the policies here involved. The judgment of the Court of Appeals is reversed and the judgment of the Tax Court is affirmed.
8
It is so ordered.
9
Judgment of Court of Appeals reversed and judgment of Tax Court affirmed.
10
Mr. Justice DOUGLAS dissents.
1
'§ 2042. Proceeds of life insurance.
'The value of the gross estate shall include the value of all property—
'(1) Receivable by the executor.
'To the extent of the amount receivable by the executor as insurance under policies on the life of the decedent.
'(2) Receivable by other beneficiaries.
'To the extent of the amount receivable by all other beneficiaries as insurance under policies on the life of the decedent with respect to which the decedent possessed at his death any of the incidents of ownership, exercisable either alone or in conjunction with any other person. * * *'
2
Section 302(g) of the Revenue Act of 1924, which was applicable in Ackerman, provided that the estate should include all proceeds receivable by other beneficiaries 'under policies taken out by the decedent upon his own life.' 43 Stat. 253, 304 305.
3
26 CFR § 20.2042—1(a)(1). See also Treas.Reg. 105 (1939 Code), § 81.25; Treas.Reg. 80 (1934 ed.), Art. 25; Treas.Reg. 70 (1926 ed. and 1929 ed.), Art. 25; Treas.Reg. 68 (1924 ed.), Art. 25; Treas.Reg. 63 (1922 ed.), Art. 27; and Treas.Reg. 37 (1921 ed.), Art. 32.
4
Section 2042 was first enacted as § 402(f) of the Revenue Act of 1918, c. 18, 40 Stat. 1057, 1097—1098. This section was re-enacted in § 402(f) of the Revenue Act of 1921, c. 136, 42 Stat. 227, 278—279; in § 302(g) of the Revenue Act of 1924, c. 234, 43 Stat. 253, 304—305, and the Revenue Act of 1926, c. 27, 44 Stat. 9, 70—71; and in § 811(g) of the Internal Revenue Code of 1939.
| 1112
|
381 U.S. 126
85 S.Ct. 1321
14 L.Ed.2d 261
James A. WATTS et al.v.SEWARD SCHOOL BOARD et al.
No. 923.
May 3, 1965.
George Kaufmann, for petitioners.
George N. Hayes, for respondent Seward School Board.
PER CURIAM.
1
Petitioners Watts and Blue were dismissed from their positions as schoolteachers in Seward, Alaska, on grounds of 'immorality,' which under Alaska Statutes 1962, § 14.20.170 was defined as 'conduct of the person tending to bring the individual concerned or the teaching profession into public disgrace or disrespect.' Petitioners' dismissals were upheld by the Alaska Superior Court (Third Judicial District), and on appeal the Alaska Supreme Court affirmed the Superior Court's decision. 395 P.2d 372. The Alaska Supreme Court noted that '(t)he immoral conduct complained of as to the appellant Watts was his holding of private conversations with various teachers in which he solicited their support in an attempt to oust the school superintendent from his job. The allegedly immoral conduct of the appellant Blue was his making of a speech to a labor union at Seward in which he stated, 'We have been unable to get rid of the (school) Superintendent, so we are going to get rid of the Board', or words to that effect.' 395 P.2d, at 374. The Alaska Supreme Court held that this conduct 'had a tendency to bring the (petitioners) * * * and the teaching profession into public disgrace or disrespect,' within the terms of the statute, 395 P.2d, at 375, and it therefore sustained their dismissals. Petitioners contend that their dismissals for engaging in the conduct here described unconstitutionally infringe their rights to political expression guaranteed by the First and Fourteenth Amendments to the United States Constitution.
2
We need not consider petitioners' contentions at this time, for since their petition for certiorari was filed Alaska has amended its statutes in this area. House Bill 27, adopted by the Alaska Legislature and signed by the Governor on March 31, 1965, now defines 'immorality' as grounds for revocation of a teaching certificate, as 'the commission of an act which, under the laws of the state, constitutes a crime involving moral turpitude.' Moreover, Alaska Statutes, Tit. 14, c. 20, have been amended by the addition of a new section which reads:
3
'Sec. 14.20.095. Right to Comment and Criticize Not to be Restricted. No rule or regulation of the commissioner of education, a local school board, or local school administrator may restrict or modify the right of a teacher to engage in comment and criticism outside school hours, relative to school administrators, members of the governing body of any school or school district, any other public official, or any school employee, to the same extent that any private individual may exercise the right.'
4
This Court has held that supervening changes in state law that may be relevant to the disposition of a case may require that the cause be remanded for appropriate action by the state court. See, e.g., State of Missouri ex rel. Wabash R. Co. v. Public Service Comm'n, 273 U.S. 126, 131, 47 S.Ct. 311, 313, 71 L.Ed. 575. Cf. Trunkline Gas Co. v. Hardin County, 375 U.S. 8, 84 S.Ct. 49, 11 L.Ed.2d 38. Accordingly, it is appropriate to allow the Alaska court to consider the effect of the new Alaska statutes upon this case. To that end, the petition for certiorari is granted, the judgment of the Supreme Court of Alaska is vacated, and this case is remanded to that court for such further consideration as may be deemed appropriate by that court under Alaska law.
5
Vacated and remanded.
| 89
|
381 U.S. 81
85 S.Ct. 1315
14 L.Ed.2d 232
Lucy C. SIMONS, Petitioner,v.MIAMI BEACH FIRST NATIONAL BANK.
No. 363.
Argued March 10, 1965.
Decided May 3, 1965.
Rehearing Denied June 7, 1965.
See 381 U.S. 956, 85 S.Ct. 1797.
Robert C. Ward, Miami, Fla., for petitioner.
Marion E. Sibley, Miami Beach, Fla., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question to be decided in this case is whether a husband's valid Florida divorce, obtained in a proceeding wherein his nonresident wife was served by publication only and did not make a personal appearance, unconstitutionally extinguished her dower right in his Florida estate.
2
The petitioner and Sol Simons were domiciled in New York when, in 1946, she obtained a New York separation decree that included an award of monthly alimony. Sol Simons moved to Florida in 1951 and, a year later, obtained there a divorce in an action of which petitioner had valid constructive notice but in which she did not enter a personal appearance.1 After Sol Simons' death in Florida in 1960, respondent, the executor of his estate, offered his will for probate in the Probate Court of Dade County, Florida. Petitioner appeared in the proceeding and filed an election to take dower under Florida law, rather than have her rights in the estate governed by the terms of the will, which made no provision for her.2 The respondent opposed the dower claim, asserting that since Sol Simons had divorced petitioner she had not been his wife at his death, and consequently was not entitled to dower under Florida law. Petitioner thereupon brought the instant action in the Circuit Court for Dade County in order to set aside the divorce decree and to obtain a declaration that the divorce, even if valid to alter her marital status, did not destroy or impair her claim to dower. The action was dismissed after trial, and the Florida District Court of Appeal for the Third District affirmed. 157 So.2d 199.3 The Supreme Court of Florida declined to review the case, 166 So.2d 151. We granted certiorari, 379 U.S. 877, 85 S.Ct. 150, 13 L.Ed.2d 85. We affirm.
3
Petitioner's counsel advised us during oral argument that he no longer challenged the judgment below insofar as it embodied a holding that the 1952 Florida divorce was valid and terminated the marital status of the parties. We therefore proceed to the decision of the question whether the Florida courts unconstitutionally denied petitioner's dower claim.4
4
Petitioner argues that since she had not appeared in the Florida divorce action the Florida divorce court had no power to extinguish any right which she had acquired under the New York decree. She invokes the principle of Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, where this Court decided that a Nevada divorce court, which had no personal jurisdiction over the wife, had no power to terminate a husband's obligation to provide the wife support as required by a pre-existing New York separation decree. As this was so, we there ruled that New York, in giving continued effect to the maintenance provisions of its separation decree, did not deny full faith and credit to the Nevada decree. See U.S.Const., Art. IV, § 1.5 The application of the Estin principle to the instant case, petitioner contends, dictates that we hold the Florida courts to their constitutional duty to give effect to the New York decree, inherent in which is a preservation of her dower right.
5
The short answer to this contention is that the only obligation imposed on Sol Simons by the New York decree, and the only rights granted petitioner under it, concerned monthly alimony for petitioner's support. Unlike the ex-husband in Estin, Sol Simons made the support payments called for by the separate maintenance decree notwithstanding his ex parte divorce. In making these payments until his death he complied with the full measure of the New York decree; when he died there was consequently nothing left of the New York decree for Florida to dishonor.
6
This conclusion embodies our judgment that there is nothing in the New York decree itself that can be construed as creating or preserving any interest in the nature of or in lieu of dower in any property of the decedent, wherever located. Petitioner refers us to no New York law that treats such a decree as having that effect, or, for that matter, to any New York law that has such an effect irrespective of the existence of the decree. We think it clear that the burden of showing this rested upon petitioner. Cf. State Farm Mut. Auto. Ins. Co. v. Duel, 324 U.S. 154, 160, 65 S.Ct. 573, 89 L.Ed. 812; Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U.S. 532, 547 548, 55 S.Ct. 518, 523—524, 79 L.Ed. 1044. It follows that insofar as petitioner's argument rests on rights created by the New York decree or by New York law, the denial of her dower by the Florida courts was not a violation of the Full Faith and Credit Clause. Cf. Armstrong v. Armstrong, 350 U.S. 568, 76 S.Ct. 629, 100 L.Ed. 705.
7
Insofar as petitioner argues that since she was not subject to the jurisdiction of the Florida divorce court its decree could not extinguish any dower right existing under Florida law, Vanderbilt v. Vanderbilt, 354 U.S. 416, 418, 77 S.Ct. 1360, 1 L.Ed.2d 1456, the answer is that under Florida law no dower right survived the decree. The Supreme Court of Florida has said that dower rights in Florida property, being inchoate, are extinguished by a divorce decree predicated upon substituted or constructive service. Pawley v. Pawley, Fla., 46 So.2d 464.6
8
It follows that the Florida courts transgressed no constitutional bounds in denying petitioner dower in her ex-husband's Florida estate.
9
Affirmed.
10
Mr. Justice HARLAN, concurring.
11
I am happy to join the opinion of the Court because it makes a partial retreat from Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 a decision which I believe must eventually be rerationalized, if not entirely overruled.
12
The Vanderbilt case was this. The Vanderbilt couple was domiciled in California. Mr. Vanderbilt went to Nevada, established a new domicile, and obtained an ex parte1 divorce decree which did not provide for alimony payments to Mrs. Vanderbilt. In the meantime Mrs. Vanderbilt went to New York. After the Nevada decree had become final, she sued in New York for support under New York law, sequestering Mr. Vanderbilt's property located there. New York ordered support payments, rejecting full-faith-and-credit arguments based on the Nevada decree. Over dissents by Mr. Justice Frankfurter and myself (354 U.S., at 419, 428, 77 S.Ct. at 1367) the Court affirmed the New York award, holding that because the Nevada court had no personal jurisdiction over Mrs. Vanderbilt, 'the Nevada decree, to the extent it purported to affect the wife's right to support, was void * * *.' 354 U.S., at 419, 77 S.Ct. 1363.
13
Two rules emerged from the case, neither of which, I suggest with deference, commends itself: (1) an ex parte divorce can have no effect on property rights; (2) a State in which a wife subsequently establishes domicile can award support to her regardless of her connection with that State at the time of the ex parte divorce and regardless of the law in her former State of domicile.2
14
The first rule slips unobtrusively into oblivion in today's decision, for Florida is allowed to turn property rights on its ex parte decree. A concurrence disputes this, but I do not understand how the Court's language in this case can be read as anything less. If I may paraphrase only slightly, the Court says, 'Insofar as petitioner argues that since she was not subject to the jurisdiction of the Florida divorce court, its decree could not extinguish any dower right existing under Florida law, Vanderbilt v. Vanderbilt, 354 U.S. 416, 418, 77 S.Ct. 1360, 1362, the answer is that the Florida decree extinguished petitioner's dower rights.' Ante, p. 85. The Court goes on to state and accept the Florida law that an ex parte divorce extinguishes dower rights. I do not see how a withdrawal from the due process phase of Vanderbilt could be clearer.
15
Because New York was petitioner's State of domicile at all times relevant to this case and did not purport to invest her with any rights to property beyond those she received from her husband, the second rule is not involved here. My hope is that its time will come too. I continue to believe that the views expressed in my Vanderbilt dissent embody a more satisfactory and workable approach to the law of 'divisible divorce' (Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561) than can be distilled from existing Court opinions.
16
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurring.
17
I agree completely with the Court's judgment and opinion, and add these few words only in reply to the suggestion of my Brother HARLAN that the Court here is making 'a partial retreat from Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456.' I do not think that today's decision marks any 'retreat' at all from the opinion or holding in Vanderbilt, and I do not understand the Court so to regard it. Vanderbilt held that a wife's right to support could not be cut off by an ex parte divorce. In the case before us, Mrs. Simons' Florida dower was not terminated by the ex parte divorce. It simply never came into existence. No one disputes that the ex parte divorce was effective to end the marriage, so that after it Mrs. Simons was no longer Mr. Simons' wife. Florida law, as the Court's opinion shows, grants dower only to a woman who is the legal wife of the husband when he dies. Mrs. Simons therefore had no property rights cut off by the divorce. She simply had her marriage ended by it, and for that reason was not a 'widow' within the meaning of the Florida law. Unless this Court were to make the novel declaration that Florida cannot limit dower rights to widows, I see no possible way in which the Vanderbilt case, which dealt with rights which a State did give to divorced wives, could be thought to apply.
18
Mr. Justice STEWART and Mr. Justice GOLDBERG, dissenting.
19
We would dismiss the writ of certiorari in this case as improvidently granted, believing that, as the Court's opinion clearly demonstrates, no federal question is presented. There exists no question under the Full Faith and Credit Clause, because Sol Simons, even after his Florida divorce, 'complied with the full measure of the New York decree,' ante, at 84.
20
No other federal question is even remotely suggested in the present posture of this case. Petitioner asserted in her petition for a writ of certiorari that '(t)he Courts of Florida have denied to the widow, Lucy C. Simons, her constitutional property rights to which she was entitled * * * by the mere subterfuge of an ex parte divorce case in the Courts of Florida, where the Florida Court did not have jurisdiction because of the lack of proper residence.' We were advised at oral argument by petitioner's counsel, however, that petitioner no longer challenged the judgment below insofar as it embodied a holding that the 1952 Florida divorce decree was valid and terminated the marital status of the parties.
21
The only possible questions which remain in this case, therefore, are questions of state law which are of no proper concern to this Court.
1
Petitioner was served by publication while still living in New York and received copies of the order for publication and the divorce complaint. She did not enter an appearance in the Florida proceeding on advice of counsel.
2
21 Fla.Stat.Ann.1964, § 731.34, F.S.A. provides as follows:
'Whenever the widow of any decedent shall not be satisfied with the portion of the estate of her husband to which she is entitled under the law of descent and distribution or under the will of her husband, or both, she may elect in the manner provided by law to take dower, which dower shall be one third in fee simple of the real property which was owned by her husband at the time of his death or which he had before conveyed, whereof she had not relinquished her right of dower as provided by law, and one third part absolutely of the personal property owned by her husband at the time of his death * * *.'
3
Petitioner attacked the validity of the divorce on the grounds: (1) that Sol Simons had defrauded the Florida courts by falsely claiming residence, (2) that the New York decree was a bar to the divorce suit and that Sol Simons had defrauded the court by failing to disclose the prior New York decree, (3) that the divorce decree on its face showed want of jurisdiction and (4) that after petitioner received notice of the divorce suit Sol Simons lulled her into inaction. The trial court made findings of fact adverse to petitioner on all points and dismissed the suit with prejudice. In affirming, the Florida District Court of Appeal held that '(t)he prior New York separate maintenance decree was not a bar to a divorce suit by the husband, and his failure to disclose it in his complaint was not a fraud on the court. * * * Any affirmative defense the prior suit may have afforded should have been presented in the divorce suit.' 157 So.2d 199, at 200.
4
Neither the Florida trial court nor the District Court of Appeal expressly discussed the merits of petitioner's claim that the divorce, even if valid, did not destroy or impair her dower rights. But since Florida law allows dower only to a decedent's wife, see note 6, infra, we interpret the Florida courts' decisions sustaining the validity of the divorce as also holding that the divorce extinguished petitioner's dower rights.
5
'Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State * * *.'
6
In Pawley the Supreme Court of Florida distinguished the dower right from the right to support, saying at 46 So.2d 464, 472 473, n. 2, 28 A.L.R.2d 1358.
'In this, if not in every jurisdiction, right of dower can never be made the subject of a wholly independent issue in any divorce suit. It stands or falls as a result of the decree which denies or grants divorce. It arises upon marriage, as an institution of the law. The inchoate right of dower has some of the incidents of property. It partakes of the nature of a lien or encumbrance. It is not a right which is originated by or is derived from the husband; nor is it a personal obligation to be met or fulfilled by him, but it is a creature of the law, is born at the marriage altar, cradled in the bosom of the marital status as an integral and component part thereof, survives during the life of the wife as such and finds its sepulcher in divorce. Alimony too is an institution of the law but it is a personal obligation of the husband which is based upon the duty imposed upon him by the common law to support his wife and gives rise to a personal right of the wife to insist upon, if she be entitled to, it. It has none of the incidents of, and is in no sense a lien upon or interest in, property. Consequently, the right of the wife to be heard on the question of alimony should not, indeed lawfully it cannot, be destroyed by a divorce decree sought and secured by the husband in an action wherein only constructive service of process was effected.'
A petition for writ of certiorari to this Court alleged, 'Petitioner is thus permitted to file another suit for alimony, but her contract of marriage is annulled and her inchoate dower rights destroyed without due process of law.' Brief for petitioner, p. 9, Pawley v. Pawley, No. 325, October Term, 1950. The petition was denied, 340 U.S. 866, 71 S.Ct. 90, 95 L.Ed. 632.
1
'Ex parte' throughout this opinion is used to denote a situation in which the divorce court has not obtained personal jurisdiction over the defendant spouse.
2
The Vanderbilt result might have been proper on any of three grounds. (1) If New York was Mrs. Vanderbilt's State of domicile at the time of the ex parte Nevada divorce, New York law investing a wife with support rights should not be overborne by an ex parte decree in another State. (2) If California was Mrs. Vanderbilt's domicile at the time of the Nevada divorce and under California law support could have been awarded, New York should also be free (though not bound) to award support. (3) If Mr. Vanderbilt owned property in New York at the time of the ex parte divorce, New York might arguably be free to hold that ownership of New York property carries with it the obligation to support one's wife, at least to the extent of the value of that property.
The Court did not concern itself with the location of Mrs. Vanderbilt's domicile or Mr. Vanderbilt's property at the time of the Nevada divorce.
| 1011
|
381 U.S. 41
85 S.Ct. 1293
14 L.Ed.2d 205
MARYLAND, for the Use of Nadine Y. LEVIN, Sydney L. Johns, et al., Petitioners,v.UNITED STATES.
No. 345.
Argued March 15, 1965.
Decided May 3, 1965.
Theodore E. Wolcott, New York City, for petitioners.
David Rose, Washington, D.C., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
The question we decide here is whether a civilian employee and military member of the National Guard is an 'employee' of the United States for purposes of the Federal Tort Claims Act when his National Guard unit is not in active federal service.1
2
Petitioners' decedents were passengers on a Capital Airlines plane that collided over Maryland with a jet trainer assigned to the Maryland Air National Guard. The only survivor of the accident was the pilot of the trainer, Captain McCoy, and it is not disputed that the collision was caused by his negligence. The estates of the pilot and co-pilot of the Capital plane, and Capital Airlines itself, filed suit against the United States under the Federal Tort Claims Act in the District Court for the District of Columbia, and recovered judgments. The Court of Appeals for the District of Columbia Circuit affirmed, United States v. State of Maryland, for the Use of Meyer, 116 U.S.App.D.C. 259, 322 F.2d 1009, cert. denied, 375 U.S. 954, 84 S.Ct. 445, 11 L.Ed.2d 314, motion for leave to file petition for rehearing pending, No. 543, 1963 Term, 380 U.S. —-, 85 S.Ct. —-. Meanwhile, petitioners filed a similar suit in the Western District of Pennsylvania, and all parties agreed to proceed solely on the record made in the Meyer case. The District Court rendered judgment for petitioners, but the Court of Appeals for the Third Circuit reversed. 329 F.2d 722. We granted certiorari, 379 U.S. 877, 85 S.Ct. 149, 13 L.Ed.2d 85, to resolve the conflict between the two Circuits on this single record, and, more broadly, to settle authoritatively the basic question stated at the outset of this opinion which is at the core of other litigation arising out of this same disaster, now pending in a number of courts in different parts of the country.2
3
Captain McCoy held a commission from the Governor of Maryland as an officer in the Maryland Air National Guard, and he served on alternate Saturdays as a fighter pilot and Squadron Maintenance Officer with the 104th Fighter Interceptor Squadron. During the rest of the month Captain McCoy was employed by the Guard in a civilian capacity as Aircraft Maintenance Chief under 32 U.S.C. § 709 (1958 ed.), the socalled federal 'caretaker' statute.3 In his civilian capacity Captain McCoy supervised the maintenance of the squadron aircraft assigned to the Air National Guard but owned by the United States. On the day of the accident, Captain McCoy had obtained permission from his superior to take a passenger on a flight in order to interest the passenger in joining the Air National Guard. The principal factual dispute below was whether at the time of the accident Captain McCoy was performing his duties with the Guard in a military or civilian capacity. A line of cases in the courts of appeals beginning with United States v. Holly, 192 F.2d 221 (C.A.10th Cir., 1951), has held that civilian 'caretakers' are employees of the United States for purposes of suit under the Federal Tort Claims Act.4 Another line of cases has been equally consistent in treating military members of the Guard as employees of the States, not the Federal Government.5 We do not deal with the factual question, on which the decision below turned,6 since, in agreement with the views of Judge Smith7 and in disagreement with the Court of Appeals in the Meyer case, we hold that in both capacities Captain McCoy was an employee of the State of Maryland, and not of the United States. Hence the United States cannot be held liable under the Tort Claims Act for his negligence in either capacity.
I.
4
The National Guard is the modern Militia reserved to the Statees by Art. I, § 8, cl. 15, 16, of the Constitution.8 It has only been in recent years that the National Guard has been an organized force, capable of being assimilated with ease into the regular military establishment of the United States. From the days of the Minutemen of Lexington and Concord until just before World War I, the various militias embodied the concept of a citizen army, but lacked the equipment and training necessary for their use as an integral part of the reserve force of the United States Armed Forces.9 The passage of the National Defense Act of 191610 materially altered the status of the militias by constituting them as the National Guard. Pursuant to power vested in Congress by the Constitution (see n. 8), the Guard was to be uniformed, equipped, and trained in much the same way as the regular army, subject to federal standards and capable of being 'federalized' by units, rather than by drafting individual soldiers.11 In return, Congress authorized the allocation of federal equipment to the Guard, and provided federal compensation for members of the Guard, supplementing any state emoluments. The Governor, however, remained in charge of the National Guard in each State except when the Guard was called into active federal service; in most instances the Governor administered the Guard through the State Adjutant General,12 who was required by the Act to report periodically to the National Guard Bureau, a federal organization, on the guard's reserve status.13 The basic structure of the 1916 Act has been preserved to the present day.
5
Section 93 of the National Defense Act authorized the payment of federal funds for the employment by the Guard of civilian 'caretakers' to be responsible for the upkeep of federal equipment allocated to the National Guard.14 This section was later amended to make explicit that employment as a caretaker could be held by officers in the Guard, who would receive a full-time salary as civilian caretakers, and in addition would receive compensation for service as military members of the Guard.15 The legislative history of these amendments makes clear that the State Adjutant General could appoint officers of the Guard to serve as civilian caretakers, provided only that the appointees met the requirements established by the federal authorities.16
II.
6
It is not argued here that military members of the Guard are federal employees, even though they are paid with federal funds and must conform to strict federal requirements in order to satisfy training and promotion standards. Their appointment by state authorities and the immediate control exercised over them by the States make it apparent that military members of the Guard are employees of the States, and so the courts of appeals have uniformly held. See n. 5, supra. Civilian caretakers should not be considered as occupying a different status. Caretakers, like military members of the Guard, are also paid with federal funds and must observe federal requirements in order to maintain their positions.17 Although they are employed to maintain federal property, it is property for which the States are responsible, and its maintenance is for the purpose of keeping the state militia in a ready status. The National Defense Act of 1916 authorized the allocation of federal property to the National Guard, but provided
7
'That as a condition precedent to the issue of any property as provided for by this Act, the State, Territory, or the District of Columbia desiring such issue shall make adequate provision, to the satisfaction of the Secretary of War, for the protection and care of such property * * *.'18
8
The Act also provided that damage or loss of federal property would be charged to the States, unless the Secretary of War determined that the damage or loss was unavoidable.19 Caretakers appointed under § 90 of the Act were thus to perform a state function, the maintenance of federal equipment allocated to the Guard.20 The caretakers have been termed the 'backbone' of the Guard,21 and are the only personnel on duty with Guard units during the greater part of the year. Like their military counterpart, caretakers are appointed by the State Adjutant General,22 and are responsible to him in the performance of their daily duties. They can be discharged and promoted only by him.23 Civilian caretakers are treated as state employees for purposes of the Social Security Act,24 for state retirement funds,25 and under the regulations issued by the Department of the Air Force.26 As early as 1920 the Comptroller of the Treasury ruled that a civilian caretaker was not a federal employee entitled to the annual leave provisions applicable to the War Department,27 an opinion that was reiterated in 1941 by the Comptroller General28 and that reflects the consistent position of the Department of Defense.29
9
United States v. Holly, supra, decided in 1951, held that civilian caretakers were employees of the United States, and has since been followed in other courts of appeals (n. 4, supra). Holly rested on a construction of the National Defense Act which, in our view, is not supported by the legislative history. Although the original section provided that caretakers were to 'be detailed by the battery or troop commander' (who was a state employee), n. 14, supra, in 1935 Congress amended the statute to provide that the Secretary of the military establishment concerned (here the Secretary of the Air Force) 'shall designate the person to employ' the caretaker.30 The court in Holly read this amendment to mean that caretakers could be employed directly by federal authorities or by the State Adjutant General acting as a federal agent. However, the purpose of the amendment was simply to permit a State to pool its caretakers, and not to restrict the employment of such personnel only to those on the military roster of the unit where the equipment was allotted. The Senate report indicates that Congress envisaged that caretakers would continue to be employed only by the state authorities. It stated:
10
'Section 6 of S. 2710 will authorize the pooling of National Guard caretakers. Under present law States are required to select the caretakers from the units that have the material. Section 6 will permit the handling under the adjutant general or other proper State official of the caretakers as a pool.'31
11
It seems clear, then, that no significant distinction was intended between the method of employing military and civilian personnel of the National Cuard.
12
Congress again in 1954 accepted the Defense Department understanding that civilian caretakers were employees of the States. In amending the Social Security Act (68 Stat. 1059, 42 U.S.C. § 418(b) (5) (1958 ed.)) to provide coverage for civilian caretakers as state employees, the committee reports stated:
13
'This provision would establish as a separate coverage group civilian employees of State National Guard units who are employed pursuant to section 90 of the National Defense Act * * * and paid from funds allotted to such units by the Department of Defense. These employees would also be deemed to be employees of the State. The Department of Defense does not regard these employees as Federal employees * * *.'32
14
In 1956 Congress authorized federal disbursing officers to withhold from the salaries of civilian caretakers amounts needed by the States for their retirement systems. Although Congress was aware of the Holly line of cases,33 the Senate report stated that authority was necessary since '(t)hese employees, although paid from Federal funds, are considered to be State rather than Federal employees. Accordingly, State authorities have been unable to make the usual deduction of the employee's contribution into the retirement system.' S.Rep.No. 2045, 84th Cong., 2d Sess. (1956).
15
In 1960 it was proposed to extend the coverage of the Federal Tort Claims Act to include civilian and military personnel of the National Guard.34 This proposal was rejected, and the bill that finally passed provides an administrative procedure whereby the proper Secretary can pay claims up to $5,000 for damage to persons or property caused by Naional Guard personnel.35 The Act includes liability for personal injury caused by civilian caretakers, even though the Justice Department called to the attention of Congress the line of cases indicating that acts of civilian caretakers were already covered under the Federal Tort Claims Act.36 The committee reports of both the House and Senate reflect acceptance of the position advocated by the Department of the Army that civilian caretakers should be included in the bill along with their military counterparts.37
16
In sum, we conclude that the congressional purpose in authorizing the employment by state authorities of civilian caretakers, the administrative practice of the Defense Department in treating caretakers as state employees, the consistent congressional recognition of that status, and the like supervision exercised by the States over both military and civilian personnel of the National Guard, unmistakably lead in combination to the view that civilian as well as military personnel of the Guard are to be treated for the purposes of the Tort Claims Act as employees of the States and not of the Federal Government. This requires a decision that the United States is not liable to petitioners for the negligent conduct of McCoy.38
17
In so holding we are not unmindful that this doubtless leaves those who suffered from this accident without effective legal redress for their losses.39 It is nevertheless our duty to take the law as we find it, remitting those aggrieved to whatever requitement may be deemed appropriate by Congress, which in affording the administrative remedies, unfortunately not available here (see n. 37), has shown itself not impervious to the moral demands of such distressing situations.
18
Affirmed.
19
Mr. Justice DOUGLAS dissents.
1
The Federal Tort Claims Act provides in pertinent part:
28 U.S.C. § 1346 (1958 ed.):
'(b) Subject to the provisions of chapter 171 of this title, the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.'
28 U.S.C. § 2671:
'As used in this chapter and sections 1346(b)( and 2401(b) of this title, the term—
"Federal agency' includes the executive departments and independent establishment of the United States, and corporations primarily acting as, instrumentalities or agencies of the United States but does not include any contracttor with the United States.
"Employee of the government' includes officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.'
28 U.S.C. § 2674:
'The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.'
2
We are informed that such litigation is pending in Illinois, Ohio, and New York.
3
National Defense Act of 1916, § 90, 39 Stat. 166, as amended, now 32 U.S.C. § 709 (1958 ed.):
'(a) Under such regulations as the Secretary of the Army may prescribe, funds allotted by him for the Army National Guard may be spent for the compensation of competent persons to care for material, armament, and equipment of the Army National Guard. Under such regulations as the Secretary of the Air Force may rpescribe, funds allotted by him for the Air National Guard may be spent for the compensation of competent persons to care for material, armament, and equipment of the Air National Guard. A caretaker employed under this subsection may also perform clerical duties incidental to his employment and other duties that do not interfere with the performance of his duties as caretaker.
'(b) Enlisted members of the National Guard and civilians may be employed as caretakers under this section. However, if a unit has more than one caretaker, one of them must be an enlisted member. Compensation under this section is in addition to compensation otherwise provided for a member of the National Guard.
'(c) Under regulations to be prescribed by the Secretary concerned, material, armament, and equipment of the Army National Guard or Air National Guard of a State or Territory, Puerto Rico, the Canal Zone, or the District of Columbia may be placed in a common pool for care, maintenance, and storage. Not more than 15 caretakers may be employed for each of those pools.
'(d) Under regulations to be prescribed by the Secretary concerned, one commissioned officer of the National Guard in a grade below major may be employed for each pool set up under subsection (c) and for each squadron of the Air National Guard. Commissioned officers may not be otherwise employed under this section.
'(e) Funds appropriated by Congress for the National Guard are in addition to funds appropriated by the several States and Territories, Puerto Rico, the Canal Zone, and the District of Columbia for the National Guard, and are available for the hire of caretakers and clerks.
'(f) The Secretary concerned shall fix the salaries of clerks and caretakers authorized to be employed under this section, and shall designate the person to employ them.'
4
Elmo v. United States, 197 F.2d 230 (C.A.5th Cir.); United States v. Duncan, 197 F.2d 233 (C.A.5th Cir.); Courtney v. United States, 230 F.2d 112, 57 A.L.R.2d 1444 (C.A.2d Cir.); United States v. Wendt, 242 F.2d 854 (C.A.9th Cir.).
5
Williams v. United States, 189 F.2d 607 (C.A.10th Cir.); Dover v. United States, 192 F.2d 431 (C.A.5th Cir.); McCranie v. United States, 199 F.2d 581 (C.A.5th Cir.); Storer Broadcasting Co. v. United States, 251 F.2d 268 (C.A.5th Cir.); Bristow v. United States, 309 F.2d 465 (C.A.6th Cir.); Pattno v. United States, 311 F.2d 604 (C.A.10th Cir.); Blackwell v. United States, 321 F.2d 96 (C.A.5th Cir.).
6
A majority of the Court of Appeals held, contrary to the District Court, that McCoy was acting in his military capacity at the time of the accident.
7
Of the other two members of the panel, Judge Hastie did not reach the question whether civilian Guard employees were embraced within the Tort Claims Act, and Judge Staley was in accord with the views of the District of Columbia Circuit in Meyer.
8
'The Congress shall have Power * * *
'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
'To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.'
9
See generally, Wiener, The Militia Clause of the Constitution, 54 Harv.L.Rev. 181 (1940).
10
39 Stat. 166 (1916).
11
National Defense Act, § 111, now 10 U.S.C. § 672 (1964 ed.). See Wiener, supra, n. 9.
12
See 32 U.S.C. § 314 (1958 ed.).
13
National Defense Act, § 66, as amended, now 32 U.S.C. § 314(d) (1958 ed.).
14
'Funds allotted by the Secretary of War for the support of the National Guard shall be available * * * for the compensation of competent help for the care of the material, animals, and equipment thereof, under such regulations as the Secretary of War may prescribe: Provided, That the men to be compensated, not to exceed five for each battery or troop, shall be duly enlisted therein and shall be detailed by the battery or troop commander, under such regulations as the Secretary of War may prescribe, and shall be paid by the United States disbursing officer in each State, Territory, and the District of Columbia.' 39 Stat. 205.
15
Act of June 19, 1935, 49 Stat. 391.
16
See S.Rep. No. 635, 74th Cong., 1st Sess., pp. 2—3, quoted infra, p. 51.
17
Detailed requirements for civilian caretakers are set out in Air National Guard Regulation No. 40—01, dated December 20, 1954 (hereinafter ANGR 40—01), and Air National Guard Manual No. 40—01, dated March 1, 1958.
18
National Defense Act, § 83, 39 Stat. 203, 204, now 32 U.S.C. § 702(d) (1958 ed.).
19
Id., § 87, now 32 U.S.C. § 710 (1958 ed.).
20
In 1926 Congress authorized the employment of National Guard officers as caretakers, limited to one per squadron, in order to provide 'an officer constantly on duty at the flying field for the supervision of flying training.' H.R.Rep. No. 1031, 69th Cong., 1st Sess., p. 3, explaining the amendment to § 90 of the National Defense Act, enacted as Act of May 28, 1926, 44 Stat. 673, now 32 U.S.C. § 709(d) (1958 ed.). See also S.Rep. No. 785, 69th Cong., 1st Sess. Training, of course, was a duty reserved to the States by § 91 of the National Defense Act and by Art. I, § 8, cl. 16, of the Constitution.
21
Hearings before the Subcommittee of the House Appropriations Committee, 84th Cong., 2d Sess., p. 1303.
22
ANGR 40—401, 3(b), 7(a).
23
Id., 3.
24
Act of Aug. 14, 1935, c. 531, 49 Stat. 620, as amended 42 U.S.C. § 418(b) (5) (1958 ed.).
25
Act of June 15, 1956, c. 390, 70 Stat. 283, as amended, 5 U.S.C. § 84d (1964 ed.).
26
ANGR 40—01, 4, provides:
'Air National Guard civilian personnel are considered to be employees of the State, Territory, Puerto Rico, or the District of Columbia (21 Comp Gen Dec. 305).'
27
27 Comp.Dec. 344 (1920).
28
21 Comp.Gen. 305 (1941).
29
See S.Rep. No. 1502, 86th Cong., 2d Sess., p. 6; H.R.Rep. No. 1928, 86th Cong., 2d Sess., p. 6.
30
Supra, n. 15, now 32 U.S.C. § 709(f) (1958 ed.) (emphasis supplied).
31
S.Rep. No. 635, 74th Cong., 1st Sess., pp. 2—3.
32
S.Rep. No. 1987, 83d Cong., 2d Sess., pp. 45—46; H.R.Rep. No. 1698, 83d Cong., 2d Sess., p. 50.
33
S.Rep. No. 2045, 84th Cong., 2d Sess., p. 4.
34
S. 1764 and H.R. 5435, 86th Cong., 2d Sess.
35
Act of September 13, 1960, 74 Stat. 878, 32 U.S.C. § 715 (1958 ed., Supp. IV). If the claim is for more than $5,000 and the Secretary deems it meritorious he may award up to $5,000 and certify the balance to Congress for appropriate action.
36
See S.Rep. No. 1502, 86th Cong., 2d Sess., p. 11; Hearings before Subcommittee No. 2 of the House Committee on the Judiciary on H.R. 5435 and H.R. 9315, 86th Cong., 2d Sess., pp. 6 7.
37
See S.Rep. No. 1502 supra; H.R.Rep. No. 1928, supra. The 1960 Act does not cover the accident involved in these cases, since the collision occurred in 1958.
38
Petitioners contend that the judgments of the District of Columbia Circuit in Meyer should be given collateral estoppel effect here, even though petitioners were not parties in Meyer. See Restatement Judgments § 93, comment b; Developments in the Law Res Judicata, 65 Harv.L.Rev. 818, 865, 870—871 (1952); but see United States v. United Air Lines, Inc., D.C., 216 F.Supp. 709, aff'd on other grounds sub nom. United Air Lines, Inc. v. Wiener, 9 Cir., 335 F.2d 379 writ of cert. dismissed under Rule 60, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549. We reject the Government's contention that the point was not preserved below. Having regard to the fact that the decision in Meyer came down during the interval between the argument and decision of Levin, we think that the estoppel challenge was properly and timely raised in the petition for rehearing in Levin. However, we need not reach the merits of the challenge since the judgment in Meyer, also pending in this Court (see p. 43, supra), must, in any event, now fall in consequence of our decision in the cases before us.
39
The State of Maryland has not, so far as we know, waived its sovereign immunity, and petitioners are not eligible for benefits under 32 U.S.C. § 715, supra, n. 35.
| 78
|
381 U.S. 129
85 S.Ct. 1322
14 L.Ed.2d 263
John PARROT et al.v.CITY OF TALLAHASSEE, FLORIDA.
No. 958.
May 3, 1965.
Jack Greenberg and Derrick A. Bell, Jr., for petitioners.
Roy T. Rhodes and Edw. J. Hill, for respondent.
PER CURIAM.
1
The petition for writ of certiorari is granted and the judgment of the Florida Circuit Court is reversed. Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771.
2
Respondent asserts that the judgment below rests on an adequate independent state ground in that petitioners, through misunderstanding or oversight, failed to obtain certification of the Circuit Court record submitted with their otherwise timely petition for writ of certiorari in the Florida District Court of Appeal, First District. Petitioners tried to correct this nonjurisdictional defect (see, e.g., Aris v. State, 162 So.2d 670 (Fla.Dist.Ct.App.)) when notified of it, but their petition was dismissed nonetheless. We do not find this procedural ground adequate to bar review by this Court. See Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302; NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; NAACP v. Alabama, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325.
| 12
|
381 U.S. 125
85 S.Ct. 1364
14 L.Ed.2d 284
Bernard SUSSER et al.v.CARVEL CORPORATION et al.
No. 355.
Supreme Court of the United States
May 3, 1965
Arnold Fleischmann, Towson, Md., for petitioners.
Herman L. Weisman and John A. Wilson, New York City, for respondents.
On Writ of Certiorari to the United States Court of Appeals for the Second Circuit.
PER CURIAM.
1
The writ of certiorari is dismissed as improvidently granted.
2
Mr. Justice GOLDBERG took no part in the consideration or decision of this case.
| 89
|
381 U.S. 1
85 S.Ct. 1271
14 L.Ed.2d 179
Louis ZEMEL, Appellant,v.Dean RUSK, Secretary of State, et al.
No. 86.
Argued March 1, 1965.
Decided May 3, 1965.
Rehearing Denied Oct. 11, 1965.
See 86 S.Ct. 17.
[Syllabus from pages 1-2 intentionally omitted]
Leonard B. Boudin, Washington D.C., for appellant.
Archibald Cox, Sol. Gen., for appellees.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The questions for decision are whether the Secretary of State is statutorily authorized to refuse to validate passports of United States citizens for travel to Cuba, and, if he is, whether the exercise of that authority is constitutionally permissible. We answer both questions in the affirmative.
2
Prior to 1961 no passport was required for travel anywhere in the Western Hemisphere. On January 3 of that year, the United States broke diplomatic and consular relations with Cuba. On January 16 the Department of State eliminated Cuba from the area for which passports were not required, and declared all outstanding United States passports (except those held by persons already in Cuba) to be invalid for travel to or in Cuba 'unless specifically endorsed for such travel under the authority of the Secretary of State.' A companion press release stated that the Department contemplated granting exceptions to 'persons whose travel may be regarded as being in the best interests of the United States, such as newsmen or businessmen with previously established business interests.'
3
Through an exchange of letters in early 1962, appellant, a citizen of the United States and holder of an otherwise valid passport, applied to the State Department to have his passport validated for travel to Cuba as a tourist. His request was denied. On October 30, 1962, he renewed the request, stating that the purpose of the proposed trip was 'to satisfy my curiosity about the state of affairs in Cuba and to make me a better informed citizen.' The request again was denied, on the ground that the purpose of the trip did nto meet the previously prescribed standards for such travel.
4
On December 7, 1962, appellant instituted this suit against the Secretary of State and the Attorney General in the United States District Court for the District of Connecticut, seeking a judgment declaring: (1) that he was entitled under the Constitution and laws of the United States to travel to Cuba and to have his passport validated for that purpose; (2) that his travel to Cuba and the use of his passport for that purpose would not violate any statute, regulation, or passport restriction; (3) that the Secretary's restrictions upon travel to Cuba were invalid; (4) that the Passport Act of 1926 and § 215 of the Immigration and Nationality Act of 1952 were unconstitutional; (5) that the Secretary's refusal to grant him a passport valid for Cuba violated rights guaranteed him by the Constitution and the United Nations Declaration of Human Rights; and (6) that denial of the passport endorsement without a formal hearing violated his rights under the Fifth Amendment.1 The complaint also requested that the Secretary be directed to validate appellant's passport for travel to Cuba and that the Secretary and the Attorney General be enjoined from interfering with such travel. In his amended complaint, appellant added to his constitutional attack on the 1926 and 1952 Acts a prayer that the Secretary and the Attorney General be enjoined from enforcing them.
5
On appellant's motion, and over the objection of appellees, a three-judge court was convened. On crossmotions for summary judgment, the court, by a divided vote, granted the Secretary of State's motion for summary judgment and dismissed the action against the Attorney General, 228 F.Supp. 65 (D.C.D.Conn.1964). We postponed consideration of the jurisdictional question to the hearing of the case on the merits, 379 U.S. 809, 85 S.Ct. 34, 13 L.Ed.2d 25.
I.
6
A direct appeal to this Court from a district court lies under 28 U.S.C. § 1253 (1958 ed.) only 'from an order granting or denying * * * an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of congress to be heard and determined by a district court of three judges.' Thus we must deal first with the Government's contention that a three-judge court was improperly convened, for if the contention is correct, this Court lacks jurisdiction over the appeal. Phillips v. United States, 312 U.S. 246, 248, 61 S.Ct. 480, 481, 85 L.Ed. 800.
7
Section 2282 of Title 28 of the United States Code requires the impanelling of a three-judge court in any case where the relief sought is '(a)n interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States * * *.' On its face, appellant's amended complaint, by calling upon the court below to enjoin the enforcement of the Passport Act of 1926 and § 215 of the Immigration and Nationality Act of 1952, on the ground that those statutes are unconstitutional, meets the requirements of § 2282. The Solicitor General notes that appellant would be accorded full relief by the voiding of the Secretary's order. It is true that appellant's argument—that either the Secretary's order is not supported by the authority granted him by Congress, or the statutes granting that authority are unconstitutional—is two-pronged. But we have often held that a litigant need not abandon his nonconstitutional arguments in order to obtain a three-judge court: 'The joining in the complaint of a nonconstitutional attack along with the constitutional one does not dispense with the necessity to convene such a court.'2
8
The Solicitor General, apparently conceding—as all three judges below agreed—that appellant's Fifth Amendment attack is substantial, cf. Kent v. Dulles, 357 U.S. 116, 125, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204; Aptheker v. Secretary of State, 378 U.S. 500, 505—506, 84 S.Ct. 1659, 1663—1664, 12 L.Ed.2d 992, argues that it is in reality an attack upon an administrative, as opposed to a legislative, policy, and therefore, under cases like Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800, and Ex parte Bransford, 310 U.S. 354, 60 S.Ct. 947, 84 L.Ed. 1249, a three-judge court need not have been convened. We need not evaluate this contention, for appellant's complaint also attacks the 1926 and 1952 Acts on the ground that 'they contain no standards and are therefore an invalid delegation of legislative power.' This allegation cannot be brushed aside as an attack upon the actions of the Secretary; in arguing invalid delegation, appellant has quite clearly assailed the statutes themselves. The Solicitor General therefore meets the delegation argument on another ground: by labeling it 'frivolous.' Although we do not accept appellant's delegation argument, infra, pp. 17-18, we cannot agree that it is so insubstantial as to compel a district court to read it out of the complaint and refuse to convene a three-judge court. Compare William Jameson & Co. v. Morgenthau, 307 U.S. 171, 59 S.Ct. 804, 83 L.Ed. 1189; Schneider v. Rusk, 372 U.S. 224, 83 S.Ct. 621, 9 L.Ed.2d 695. Indeed, we explicitly noted in Kent v. Dulles, supra, 357 U.S. at 129, 78 S.Ct. at 1120 that if we had held that the Secretary's refusal to issue a passport to petitioner in that case was supported by the 1926 and 1952 Acts, we would then have been obliged to consider whether those Acts were void for invalid delegation.3
9
The complaint therefore launches a substantial constitutional attack upon two federal statutes, and prays that their operation be enjoined. Cf. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794. We hold that the three-judge court was properly convened, and that we therefore have jurisdiction over the appeal.4
II.
10
We think that the Passport Act of 1926, 44 Stat. 887, 22 U.S.C. § 211a (1958 ed.), embodies a grant of authority to the Executive to refuse to validate the passports of United States citizens for travel to Cuba. That Act provides, in pertinent part:
11
'The Secretary of State may grant and issue passports * * * under such rules as the President shall designate and prescribe for and on behalf of the United States * * *.'5
12
This provision is derived from § 23 of the Act of August 18, 1856, 11 Stat. 52, 60—61, which had, prior to 1926, been re-enacted several times without substantial change. The legislative history of the 1926 Act and its predecessors does not, it is true, affirmatively indicate an intention to authorize area restrictions. However, its language is surely broad enough to authorize area restrictions, and there is no legislative history indicating an intent to exclude such restrictions from the grant of authority; these factors take on added significance when viewed in light of the fact that during the decade preceding the passage of the Act, the Executive had imposed both peacetime and wartime area restrictions. As a result of a famine in Belgium in 1915, the State Department stopped issuing passports for use in that country except to 'applicants obliged to go thither by special exigency or authorized by Red Cross or Belgian Relief Commission.' III Hackworth, Digest of International Law, p. 526 (1942). Beginning December 9, 1914, and continuing through World War, I, passports were validated only for specific purposes and specific countries. No passports were issued for travel in Germany and Austria until July 18, 1922, and none for the Soviet Union until approximately September 1923. Hearings before the Senate Committee on Foreign Relations on Department of State Passport Policies, 85th Cong., 1st Sess., pp. 63—64. The use in the 1926 Act of language broad enough to permit executive imposition of area restrictions, after the Executive had several times in the recent past openly asserted the power to impose such restrictions under predecessor statutes containing substantially the same language, supports the conclusion that Congress intended in 1926 to maintain in the Executive the authority to make such restrictions.6
13
This construction of the Act is reinforced by the State Department's continued imposition of area restrictions during both times of war and periods of peace since 1926. For a period of about seven months following the outbreak of war between Italy and Ethiopia in 1935, the Department declined to issue passports for travel in Ethiopia, except to journalists, Red Cross representatives, and others able to show a 'compelling exigency' necessitating such travel. In cases where persons did not include Ethiopia in their applications, but were—by reason of the mention in their applications of adjacent countries—suspected of intending to travel therein, their passports were stamped 'not valid for use in Ethiopia.' III Hackworth, supra, pp. 531—532. Following the outbreak of the Spanish Civil War in 1936, passports were stamped 'not valid for travel in Spain,' with exceptions for newspapermen and persons furnishing medical assistance. Id., at 533—534. A similar restriction was placed on travel to China in August 1937, in view of 'the disturbed situation in the Far East.' Passports were validated for travel to China only 'in exceptional circumstances,' and in no case for women or children. Id., at 532 533.
14
On March 31, 1938, the President, purporting to act pursuant to the 1926 Act, specifically authorized the Secretary to impose area restrictions in the issuance of passports, Exec. Order No. 7856, 3 Fed.Reg. 681, 687:
15
'The Secretary of State is authorized in his discretion to refuse to issue a passport, to restrict a passport for use only in certain countries, to restrict it against use in certain countries, to withdraw or cancel a passport already issued, and to withdraw a passport for the purpose of restricting its validity or use in certain countries.'
16
This Executive Order is still in force. 22 CFR § 51.75. In September 1939, travel to Europe was prohibited except with a passport specially validated for such travel; passports were so validated only upon a showing of the 'imperativeness' of the travel. Departmental Order No. 811, 4 Fed.Reg. 3892.
17
Area restrictions have also been imposed on numerous occasions since World War II. Travel to Yugoslavia was restricted in the late 1940's as a result of a series of incidents involving American citizens. Dept. State Press Conf., May 9, 1947. Travel to Hungary was restricted between December 1949 and May 1951, and after December 1951.7 In June 1951, the State Department began to stamp passports 'not valid for travel in Czechoslovakia,' and declared that all passports outstanding at that time were not valid for such travel. 24 Dept. State Bull. 932. In May 1952, the Department issued a general order that all new passports would be stamped not valid for travel to Albania, Bulgaria, Communist China, Czechoslovakia, Hungary, Poland, Rumania and the Soviet Union. 26 id., at 736. In October 1955, the Secretary announced that passports would no longer require special validation for travel to Czechoslovakia, Hungary, Poland, Rumania and the Soviet Union, but would be stamped invalid for travel 'to the following areas under control of authorities with which the United States does not have diplomatic relations: Albania, Bulgaria, and those portions of China, Korea and Viet-Nam under communist control.' 33 id., at 777. In February 1956, the restriction on travel to Hungary was reimposed. 34 id., 246—248. And in late 1956, passports were for a brief period stamped invalid for travel to or in Egypt, Israel, Jordan and Syria. 35 id., at 756.
18
Even if there had been no passport legislation enacted since the 1926 Act, the post-1926 history of executive imposition of area restrictions, as well as the pre-1926 history, would be of relevance to our construction of the Act. The interpretation expressly placed on a statute by those charged with its administration must be given weight by courts faced with the task of construing the statute. Udall v. Tallman, 380 U.S. 1, 16—18, 85 S.Ct. 792, 801—802; Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796. Under some circumstances, Congress' failure to repeal or revise in the face of such administrative interpretation has been held to constitute persuasive evidence that that interpretation is the one intended by Congress.8 In this case, however, the inference is supported by more than mere congressional inaction. For in 1952 Congress, substantially reenacting laws which had been passed during the First and Second World Wars,9 provided that after the issuance of a presidential proclamation of war or national emergency, it would be unlawful to leave or enter the United States without a valid passport. Section 215 of the Immigration and Nationality Act of 1952, 66 Stat. 190, 8 U.S.C. § 1185 (1958 ed.). The Solicitor General urges that in view of the issuance in 1953 of a presidential proclamation of national emergency which is still outstanding,10 travel in violation of an area restriction imposed on an otherwise valid passport is unlawful under the 1952 Act. The correctness of this interpretation is a question we do not reach on this appeal, see infra, pp. 18—20. But whether or not the new legislation was intended to attach criminal penalties to the violation of area restrictions, it certainly was not meant to cut back upon the power to impose such restrictions. Despite 26 years of executive interpretation of the 1926 Act as authorizing the imposition of area restrictions, Congress in 1952, though it once again enacted legislation relating to passports, left completely untouched the broad rule-making authority granted in the earlier Act. Cf. Norwegian Nitrogen Products Co. v. United States, surpa, 288 U.S. at 313, 53 S.Ct. at 357.11
19
This case is therefore not like Kent v. Dulles, supra, where we were unable to find, with regard to the sort of passport refusal involved there, an administrative practice sufficiently substantial and consistent to warrant the conclusion that Congress had implicitly approved it. Appellant reminds us that in summarizing the Secretary's practice in Kent, we observed:
20
'So far as material here, the cases of refusal of passports generally fell into two categories. First, questions pertinent to the citizenship of the applicant and his allegiance to the United States had to be resolved by the Secretary. * * * Second, was the question whether the applicant was participating in illegal conduct, trying to escape the toils of the law, promoting passport frauds, or otherwise engaging in conduct which would violate the laws of the United States.' 357 U.S., at 127, 78 S.Ct., at 1119.
21
It must be remembered, in reading this passage, that the issue involved in Kent was whether a citizen could be denied a passport because of his political beliefs or associations. In finding that history did not support the position of the Secretary in that case, we summarized that history 'so far as material here' that is, so far as material to passport refusals based on the character of the particular applicant. In this case, however, the Secretary has refused to validate appellant's passport not because of any characteristic peculiar to appellant, but rather because of foreign policy considerations affecting all citizens.
III.
22
Having concluded that the Secretary of State's refusal to validate appellant's passport for travel to Cuba is supported by the authority granted by Congress in the Passport Act of 1926, we must next consider whether that refusal abridges any constitutional right of appellant. Although we do not in this case reach the question of whether the 1952 Act should be read to attach criminal penalties to travel to an area for which one's passport is not validated, we must, if we are to approach the constitutional issues presented by this appeal candidly, proceed on the assumption that the Secretary's refusal to validate a passport for a given area acts as a deterrent to travel to that area. In Kent v. Dulles, supra, 357 U.S. at 125, 78 S.Ct. at 1118, we held that '(t)he right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment.' See also Aptheker v. Secretary of State, supra, 378 U.S. at 505—506, 84 S.Ct. at 1663. However, the fact that a liberty cannot be inhibited without due process of law does not mean that it can under no circumstances be inhibited.12
23
The requirements of due process are a function not only of the extent of the governmental restriction imposed,13 but also of the extent of the necessity for the restriction. Cuba is the only area in the Western Hemisphere controlled by a Communist government. It is, moreover, the judgment of the State Department that a major goal of the Castro regime is to export its Communist revolution to the rest of Latin America.14 The United States and other members of the Organization of American States have determined that travel between Cuba and the other countries of the Western Hemisphere is an important element in the spreading of subversion, and many have therefore undertaken measures to discourage such travel.15 It also cannot be forgotten that in the early days of the Castro regime, United States citizens were arrested and imprisoned without charges. We think, particularly in view of the President's statutory obligation to 'use such means, not amounting to acts of war, as he may think necessary and proper' to secure the release of an American citizen unjustly deprived of his liberty by a foreign government,16 that the Secretary has justifiably concluded that travel to Cuba by American citizens might involve the Nation in dangerous international incidents, and that the Constitution does not require him to validate passports for such travel.
24
The right to travel within the United States is of course also constitutionally protected, cf. Edwards v. People of State of California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119. But that freedom does not mean that areas ravaged by flood, fire or pestilence cannot be quarantined when it can be demonstrated that unlimited travel to the area would directly and materially interfere with the safety and welfare of the area or the Nation as a whole. So it is with international travel. That the restriction which is challenged in this case is supported by the weightiest considerations of national security is perhaps best pointed up by recalling that the Cuban missile crisis of October 1962 preceded the filing of appellant's complaint by less than two months.
25
Appellant also asserts that the Secretary's refusal to validate his passport for travel to Cuba denies him rights guaranteed by the First Amendment. His claim is different from that which was raised in Kent v. Dulles, supra, and Aptheker v. Secretary of State, supra, for the refusal to validate appellant's passport does not result from any expression or association on his part; appellant is not being forced to choose between membership in an organization and freedom to travel. Appellant's allegation is, rather, that the 'travel ban is a direct interference with the First Amendment rights of citizens to travel abroad so that they might acquaint themselves at first hand with the effects abroad of our Government's policies, foreign and domestic, and with conditions abroad which might affect such policies.' We must agree that the Secretary's refusal to validate passports for Cuba renders less than wholly free the flow of information concerning that country. While we further agree that this is a factor to be considered in determining whether appellant has been denied due process of law,17 we cannot accept the contention of appellant that it is a First Amendment right which is involved. For to the extent that the Secretary's refusal to validate passports for Cuba acts as an inhibition (and it would be unrealistic to assume that it does not), it is an inhibition of action. There are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the citizen's opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right. The right to speak and publish does not carry with it the unrestrained right to gather information.
26
Finally, appellant challenges the 1926 Act on the ground that it does not contain sufficiently definite standards for the formulation of travel controls by the Executive. It is important to bear in mind, in appraising this argument, that because of the changeable and explosive nature of contemporary international relations, and the fact that the Executive is immediately privy to information which cannot be swiftly presented to, evaluated by, and acted upon by the legislature, Congress—in giving the Executive authority over matters of foreign affairs—must of necessity paint with a brush broader than that it customarily wields in domestic areas.
27
'Practically every volume of the United States Statutes contains one or more acts or joint resolutions of Congress authorizing action by the President in respect of subjects affecting foreign relations, which either leave the exercise of the power to his unrestricted judgment, or provide a standard far more general than that which has always been considered requisite with regard to domestic affairs.' United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 324, 57 S.Ct. 216, 223, 81 L.Ed. 255.
28
This does not mean that simply because a statute deals with foreign relations, it can grant the Executive totally unrestricted freedom of choice. However, the 1926 Act contains no such grant. We have held, Kent v. Dulles, supra, and reaffirm today, that the 1926 Act must take its content from history: it authorizes only those passport refusals and restrictions 'which it could fairly be argued were adopted by Congress in light of prior administrative practice.' Kent v. Dulles, supra, 357 U.S. at 128, 78 S.Ct. at 1119. So limited, the Act does not constitute an invalid delegation.
IV.
29
Appellant's complaint sought not only an order compelling the Secretary of State to validate his passport for travel to Cuba, but also a declaration that appellant 'is entitled under the Constitution and laws of the United States to travel to Cuba,' and an order enjoining the Secretary and the Attorney General from interfering with such travel. Read in the context of the arguments appellant makes here, it appears that the intent of the complaint was that these latter prayers should be considered only in the event that the court decided that the Secretary lacks authority to refuse to validate appellant's passport for Cuba. However, the complaint can also be read to incorporate a request that, even if the court should find that the Secretary does have such authority, it go on to decide whether appellant can be criminally prosecuted, under § 215(b) of the Immigration and Nationality Act of 1952, 66 Stat. 190, 8 U.S.C. § 1185(b) (1958 ed.), for travel in violation of an area restriction. That section provides:
30
'After such proclamation as is provided for in subsection (a) of this section has been made and published and while such proclamation is in force, it shall, except as otherwise provided by the President, and subject to such limitations and exceptions as the President may authorize and prescribe, be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid passport.' A proclamation of the sort referred to was issued in 1953 and remains on the books. Pres. Proc. No. 3004, 67 Stat. c31; cf. Exec. Order No. 11037, 3 CFR 621 (1959—1963 Comp.). We hold that on either interpretation of the complaint, the court below was correct in refusing to reach the issue of criminal liability.
31
There are circumstances under which courts properly make exceptions to the general rule that equity will not interfere with the criminal processes, by entertaining actions for injunction or declaratory relief in advance of criminal prosecution. See Evers v. Dwyer, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222; Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255. However, the Declaratory Judgments Act, 28 U.S.C. § 2201 (1958 ed.), 'is an enabling Act, which confers a discretion on the courts rather than an absolute right upon the litigant.' Public Serv. Comm'n of Utah v. Wycoff Co., 344 U.S. 237, 241, 73 S.Ct. 236, 239, 97 L.Ed. 291. The complaint filed in this case does not specify the sort of travel to Cuba appellant has in mind—e.g., whether he plans to proceed to Cuba directly or travel there via one or more other countries. Nor can we tell from the papers filed whether the Government will, in the event appellant journeys to Cuba, charge him under § 215(b) with leaving the United States on a carrier bound for Cuba with a passport not validated for Cuba; leaving the United States with such a passport with the intent of traveling to Cuba before he returns home; leaving the United States with such a passport on a journey which in fact takes him to Cuba; re-entering the United States with such a passport after having visited Cuba; some other act—or whether it will charge him at all.18 Whether each or any of these gradations of fact or charge would make a difference as to criminal liability is an issue on which the District Court wisely took no position. Nor do we. For if we are to avoid rendering a series of advisory opinions, adjudication of the reach and constitutionality of § 215(b) must await a concrete fact situation. Compare Alabama State Federation of Labor, etc. v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725.
32
The District Court therefore correctly dismissed the complaint, and its judgment is affirmed.
33
Affirmed.
34
Mr. Justice BLACK, dissenting.
35
Article I of the Constitution provides that 'All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.' (Emphasis supplied.) I have no doubt that this provision grants Congress ample power to enact legislation regulating the issuance and use of passports for travel abroad, unless the particular legislation is forbidden by some specific constitutional prohibition such as, for example, the First Amendment. See Aptheker v. Secretary of State, 378 U.S. 500, 517, 84 S.Ct. 1659, 1670, 12 L.Ed.2d 992 (concurring opinion); cf. Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204. Since Article I, however, vests 'All legislative Powers' in the Congress, and no language in the Constitution purports to vest any such power in the President, it necessarily follows, if the Constitution is to control, that the President is completely devoid of power to make laws regulating passports or anything else. And he has no more power to make laws by labeling them regulations than to do so by calling them laws. I cannot accept the Government's argument that the President has 'inherent' power to make regulations governing the issuance and use of passports. Post, pp. 28—30. We emphatically and I think properly rejected a similar argument advanced to support a seizure of the Nation's steel companies by the President. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153. And regulation of passports, just like regulation of steel companies, is a law-making—not an executive, law-enforcing—function.
36
Nor can I accept the Government's contention that the passport regulations here involved are valid 'because the Passport Act of 1926 in unequivocal words delegates to the President and Secretary a general discretionary power over passports * * *.' That Act does provide that 'the Secretary of State may grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries * * * under such rules as the President shall designate and prescribe * * *.'1 Quite obviously, the Government does not exaggerate in saying that this Act 'does not provide any specific standards for the Secretary' and 'delegates to the President and Secretary a general discretionary power over passports'—a power so broad, in fact, as to be marked by no bounds except an unlimited discretion. It is plain therefore that Congress has not itself passed a law regulating passports; it has merely referred the matter to the Secretary of State and the President in words that say in effect, 'We delegate to you our constitutional power to make such laws regulating passports as you see fit.' The Secretary of State has proceeded to exercise the power to make laws regulating the issuance of passports by declaring that he will issue them for Cuba only to 'persons whose travel may be regarded as being in the best interests of the United States,' as he views those interests. For Congress to attempt to delegate such an undefined law-making power to the Secretary, the President, or both, makes applicable to this 1926 Act what Mr. Justice Cardozo said about the National Industrial Recovery Act:2 'This is delegation running riot. No such plenitude of power is susceptible of transfer.' A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 553, 55 S.Ct. 837, 853, 79 L.Ed. 1570 (concurring opinion). See also Panama Ref. Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446; cf. Kent v. Dulles, 357 U.S. 116, 129, 78 S.Ct. 1113, 1120, 2 L.Ed.2d 1204.
37
Our Constitution has ordained that laws restricting the liberty of our people can be enacted by the Congress and by the Congress only. I do not think our Constitution intended that this vital legislative function could be farmed out in large blocks to any governmental official, whoever he might be, or to any governmental department or bureau, whatever administrative expertise it might be thought to have. The Congress was created on the assumption that enactment of this free country's laws could be safely entrusted to the representatives of the people in Congress, and to no other official or government agency. The people who are called on to obey laws have a constitutional right to have them passed only in this constitutional way. This right becomes all the more essential when as here the person called on to obey may be punishable by five years' imprisonment and a $5,000 fine if he dares to travel without the consent of the Secretary or one of his subordinates.3 It is irksome enough for one who wishes to travel to be told by the Congress, the constitutional lawmaker with power to legislate in this field, that he cannot go where he wishes. It is bound to be far more irritating—and I do not think the authors of our Constitution, who gave 'All' legislative power to Congress, intended—for a citizen of this country to be told that he cannot get a passport because Congress has given an unlimited discretion to an executive official (or viewed practically, to his subordinates) to decide when and where he may go. I repeat my belief that Congress has ample power to regulate foreign travel. And of course, the fact that there may be good and adequate reasons for Congress to pass such a law is no argument whatever for holding valid a law written not by the Congress but by executive officials. See Panama Ref. Co. v. Ryan, supra, 293 U.S., at 420, 55 S.Ct. at 248. I think the 1926 Act gives the lawmaking power of Congress to the Secretary and the President and that it therefore violates the constitutional command that 'All' legislative power be vested in the Congress. I would therefore reverse the judgment.
38
Mr. Justice DOUGLAS, with whom Mr. Justice GOLDBERG concurs, dissenting.
39
Appellant, the holder of a valid United States passport, requested that his passport be validated for travel to Cuba: he wished to make the trip 'to satisfy my curiosity about the state of affairs in Cuba and to make me a better informed citizen.' The need for validation arose from the Department of State's prior elimination of Cuba from the area for which passports were not required, 22 CFR § 53.3(b), and from its issuance of a public notice declaring all outstanding passports invalid for travel to Cuba unless specifically endorsed for such travel under the authority of the Secretary of State, 26 Fed.Reg. 492. A companion press release of January 16, 1961, stated that such travel would be permitted by 'persons whose travel may be regarded as being in the best interests of the United States, such as newsmen or businessmen with previously established business interests.' The Passport Office denied appellant's request for validation. Referring to the press release, the Deputy Director of the Passport Office informed appellant that it was 'obvious that your present purpose of visiting Cuba does not meet the standards for validation of your passport.'
40
We held in Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204, that the right to travel overseas, as well as at home, was part of the citizen's liberty under the Fifth Amendment. That conclusion was not an esoteric one drawn from the blue. It reflected a judgment as to the peripheral rights of the citizen under the First Amendment. The right to know, to converse with others, to consult with them, to observe social, physical, political and other phenomena abroad as well as at home gives meaning and substance to freedom of expression and freedom of the press. Without those contacts First Amendment rights suffer. That is why in Kent v. Dulles, supra, we said that freedom of movement has 'large social values.' Id., at 126, 78 S.Ct., at 1118.
41
The ability to understand this pluralistic world, filled with clashing ideologies, is a prerequisite of citizenship if we and the other peoples of the world are to avoid the nuclear holocaust. The late Pope John XXIII in his famous encyclical Pacem in Terris stated the idea eloquently.
42
'Men are becoming more and more convinced that disputes which arise between States should not be resolved by recourse to arms, but rather by negotiation.
43
'It is true that on historical grounds this conviction is based chiefly on the terrible destructive force of modern arms; and it is nourished by the horror aroused in the mind by the very thought of the cruel destruction and the immense suffering which the use of those armaments would bring to the human family; and for this reason it is hardly possible to imagine that in the atomic era war could be used as an instrument of justice.
44
'Nevertheless, unfortunately, the law of fear still reigns among peoples, and it forces them to spend fabulous sums for armaments: not for aggression, they affirm—and there is no reason for not believing them—but to dissuade others from aggression.
45
'There is reason to hope, however, that by meeting and negotiating, men may come to discover better the bonds that unite them together, deriving from the human nature which they have in common; and that they may also come to discover that one of the most profound requirements of their common nature is this: that between them and their respective peoples it is not fear which should reign but love, a love which tends to express itself in a collaboration that is loyal, manifold in form and productive of many benefits.'
He also said:
46
'From the fact that human beings are by nature social, there arises the right of assembly and association.'
47
Since we deal with rights peripheral to the enjoyment of First Amendment guarantees, restrictive legislation must be 'narrowly drawn' (Cantwell v. State of Connecticut, 310 U.S. 296, 307, 60 S.Ct. 900, 905, 84 L.Ed. 1213) to meet a precise evil. Only last Term, in Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992, we reaffirmed that when we struck down a provision of the Subversive Activities Control Act of 1950 (64 Stat. 987) because it 'too broadly and indiscriminately' restricted the right to travel. Id., at 505, 84 S.Ct., at 1663. We should do the same here.
48
I agree that there are areas to which Congress can restrict or ban travel. Pestilences may rage in a region making it necessary to protect not only the traveler but those he might infect on his return. A theatre of war may be too dangerous for travel. Other like situations can be put. But the only so-called danger present here is the Communist regime in Cuba. The world, however, is filled with Communist thought; and Communist regimes are on more than one continent. They are part of the world spectrum; and if we are to know them and understand them, we must mingle with them, as Pope John said. Keeping alive intellectual intercourse between opposing groups has always been important and perhaps was never more important than now.
49
The First Amendment presupposes a mature people, not afraid of ideas. The First Amendment leaves no room for the official, whether truculent or benign, to say nay or yea because the ideas offend or please him or because he believes some political objective is served by keeping the citizen at home or letting him go. Yet that is just what the Court's decision today allows to happen. We have here no congressional determination that Cuba is an area from which our national security demands that Americans be excluded. Nor do we have a congressional authorization of the Executive to make such a determination according to standards fixed by Congress. Rather we have only the claim that Congress has painted with such a 'broad brush' that the State Department can ban travel to Cuba simply because it is pleased to do so. By permitting this, the Court ignores the 'familiar and basic principle,' Aptheker v. Secretary of State, supra, at 508, 84 S.Ct., at 1664, that 'a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.' NAACP v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 1314, 12 L.Ed.2d 325.
50
As I have said, the right to travel is at the periphery of the First Amendment, rather than at its core, largely because travel is, of course, more than speech: it is speech brigaded with conduct. 'Conduct remains subject to regulation for the protection of society. * * * (But i)n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.' Cantwell v. State of Connecticut, supra, 310 U.S. at 304, 60 S.Ct. at 903. Restrictions on the right to travel in times of peace should be so particularized that a First Amendment right is not precluded unless some clear countervailing national interest stands in the way of its assertion.*
51
Mr. Justice GOLDBERG, dissenting.
52
Last year approximately 2,750,000 Americans traveled abroad. More than 1,100,000 passports were issued or renewed, nearly 4,000 of which were obtained by journalists.1 This phenomenal amount of travel not only demonstrates our curiosity about things foreign, and the increasing importance of, and in the often necessity for, travel, but it also reflects the long history of freedom of movement which Americans have enjoyed. Since the founding of the Republic our Government has encouraged such travel.2 For example, in 1820, when John Quincy Adams issued a passport to one Luther Bradish he certified that Bradish was about to visit foreign countries 'with the view of gratifying a commendable curiosity.'3 In 1962, however, when appellant requested that his passport be validated so that he might travel to Cuba 'to satisfy my curiosity about the state of affairs in Cuba and to make me a better informed citizen,' his request was denied upon the basis of Department of State regulations, issued under the alleged authority of an Executive Order, restricting travel to Cuba.
53
Appellant attacks the limitation imposed upon the validity of his passport as beyond the inherent power of the Executive, unauthorized by Congress, and beyond the constitutional authority of either the Executive or Congress. I agree with the Court that Congress has the constitutional power to impose area restrictions on travel, consistent with constitutional guarantees, and I reject appellant's arguments to the contrary. With all deference, however, I do not agree with the Court's holding that Congress has exercised this power. Moreover, I do not believe that the Executive has inherent authority to impose area restrictions in time of peace. I would hold, under the principles established by prior decisions of this Court that inasmuch as Congress has not authorized the Secretary to impose area restrictions, appellant was entitled to a passport valid for travel to Cuba.
I. INHERENT AUTHORITY OF THE EXECUTIVE.
54
This Court has recognized that the right to travel abroad is 'an important aspect of the citizen's 'liberty" guaranteed by the Due Process Clause of the Fifth Amendment. Kent v. Dulles, 357 U.S. 116, 127, 78 S.Ct. 1113, 1119, 2 L.Ed.2d 1204. In Aptheker v. Secretary of State, 378 U.S. 500, 517, 84 S.Ct. 1659, 1669, 12 L.Ed.2d 992 we reaffirmed that 'freedom of travel is a constitutional liberty closely related to rights of free speech and association.' As nations have become politically and commercially more dependent upon one another and foreign policy decisions have come to have greater impact upon the lives of our citizens, the right to travel has become correspondingly more important. Through travel, by private citizens as well as by journalists and governmental officials, information necessary to the making of informed decisions can be obtained. And, under our constitutional system, ultimate responsibility for the making of informed decisions rests in the hands of the people. As Professor Chafee has pointed out, 'An American who has crossed the ocean is not obliged to form his opinions about our foreign policy merely from what he is told by officials of our government or by a few correspondents of American newspapers. Moreover, his views on domestic questions are enriched by seeing how foreigners are trying to solve similar problems. In many different ways direct contact with other countries contributes to sounder decisions at home.' Chafee, Three Human Rights in the Constitution of 1787, 195—196 (1956).
55
The constitutional basis of the right to travel and its importance to decision-making in our democratic society led this Court in Kent v. Dulles, supra, to conclude that '(i)f that 'liberty' is to be regulated, it must be pursuant to the law-making functions of the Congress.' 357 U.S., at 129, 78 S.Ct. at 1120. Implicit in this statement, and at the very core of the holding in Kent v. Dulles, is a rejection of the argument there advanced and also made here by the Government that the Executive possesses an inherent power to prohibit or impede travel by restricting the issuance of passports. The Court in Kent expressly recognized that a passport is not only of great value, but also is necessary4 to leave this country and to travel to most parts of the world. Kent v. Dulles, supra, 357 U.S., at 121, 78 S.Ct., at 1115. The Court demonstrates in Kent v. Dulles, and I shall show in detail below, that there is no long-standing and consistent history of the exercise of an alleged inherent Executive power to limit travel or restrict the validity of passports. In view of the constitutional basis of the right to travel, the legal and practical necessity for passports, and the absence of a longstanding Executive practice of imposing area restrictions, I would rule here, as this Court did in Kent v. Dulles, that passport restrictions may be imposed only when Congress makes provision Dulles, supra, at 130, 78 S.Ct., at 1120, therefor 'in explicit terms,' Kent v. Dulles, supra, at 130, 78 S.Ct., at 1120. consistent with constitutional guarantees. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153. I would hold expressly that the Executive has no inherent authority to impose area restrictions in time of peace.
56
II. STATUTORY AUTHORITY.
57
I cannot accept the Court's view that authority to impose area restrictions was granted to the Executive by Congress in the Passport Act of 1926, 44 Stat. 887, 22 U.S.C. § 211a (1958 ed.), which provides, 'The Secretary of State may grant and issue passports * * * under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other person shall grant, issue, or verify such passports.' I do not believe that the legislative history of this provision, or administrative practice prior to its most recent re-enactment in 1926 will support the Court's interpretation of the statute. Moreover, the nature of the problem presented by area restrictions makes it unlikely that authority to impose such restrictions was granted by Congress in the course of enacting such a broad general statute. In my view, as the history I shall relate establishes, this statute was designed solely to centralize authority to issue passports in the hands of the Secretary of State in order to overcome the abuses and chaos caused by the fact that prior to the passage of the statute numerous unauthorized persons issued passports and travel documents.
A. The Legislative History.
58
The 1926 provision has its origin in the Act of August 18, 1856, 11 Stat. 52, 60—61. Prior to 1856 the issuance of passports was not regulated by law. Governors of States, local mayors, and even notaries public issued documents which served as passports. This produced confusion abroad. In 1835 Secretary of State Forsyth wrote:
59
'It is within the knowledge of the Department that the diplomatic agents of foreign governments in the United States have declined authenticating acts of governors or other State or local authorities; and foreign officers abroad usually require that passports granted by such authorities shall be authenticated by the ministers or consuls of the United States. Those functionaries, being thus called upon, find themselves embarrassed between their desire to accommodate their fellow-citizens and their unwillingness to certify what they do not officially know; and the necessity of some uniform practice, which may remove the difficulties on all sides, has been strongly urged upon the Department.' III Moore, International Law Digest 862—863 (1906).
60
Despite administrative efforts to curb the flow of state and local passports, Secretary of State Marcy wrote in 1854:
61
'To preserve proper respect for our passports it will be necessary to guard against frauds as far as possible in procuring them. I regret to say that local magistrates or persons pretending to have authority to issue passports have imposed upon persons who go abroad with these spurious papers. Others, again, who know that they are not entitled to passports—not being citizens of the United States—seek to get these fraudulent passports, thinking that they will protect them while abroad.' III Moore, op. cit. supra, at 863.
62
As is noted in an official history of the State Department, 'The lack of legal provision on the subject (of passports) led to gross abuses, and 'the impositions practiced upon the illiterate and unwary by the fabrication of worthless passports' (IX Op.Atty.Gen. 350) led finally to the passage of the Act of August 18, 1856.' The Department of State of the United States: Its History and Functions 178 (1893). This Act provided that 'the Secretary of State shall be authorized to grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by such diplomatic or consular officers of the United States, and under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other person shall grant, issue, or verify any such passport.' 11 Stat. 60. That Act made it a crime for a person to issue a passport who was not authorized to do so. This provision was re-enacted on July 3, 1926, 44 Stat. 887, in substantially identical form.5 There is no indication in the legislative history either at the time the Act was originally passed in 1856 or when it was re-enacted, that it was meant to serve any purpose other than that of centralizing the authority to issue passports in the hands of the Secretary of State so as to eliminate abuses in their issuance. Thus, in my view, the authority to make rules, granted by the statute to the Executive, extends only to the promulgation of rules designed to carry out this statutory purpose.
B. The Administrative Practice
63
The administrative practice of the State Department prior to 1926 does not support the Court's view that when Congress re-enacted the 1856 provision in 1926 it intended to grant the Executive authority to impose area restrictions. Prior to the First World War the State Department had never limited the validity of passports for travel to any particular area. In fact, limitations upon travel had been imposed only twice. During the War of 1812 Congress specifically provided by statute that persons could not cross enemy lines without a passport, and in 1861 at the beginning of the Civil War the Secretary of State ruled that passports would not be issued to persons whose loyalty was in doubt. These restrictions were imposed in time of war. The first, restricting the area of travel, evidently was thought to require a specific statutory enactment by Congress, and the second did not limit the area of travel, but, rather, limited the persons to whom passports would be issued.6 Until 50 years ago peacetime limitations upon the right of a citizen to travel were virtually unknown, see Chafee, op. cit. supra, at 193; Jaffe, The Right to Travel: The Passport Problem, 35 Foreign Affairs 17, and it was in this atmosphere that the Act of 1856 was passed and its re-enactment prior to 1926 took place.
64
The only area restrictions imposed between 1856 and 1926 arose out of the First World War. Although Americans were not required by law to carry passports in 1915, certain foreign countries insisted that Americans have them. American Consulates and Embassies abroad were therefore authorized to issue emergency passports after the outbreak of the war, and in 1915 the Secretary of State telegraphed American Ambassadors and Ministers in France, Germany, Great Britain, Italy, the Netherlands, and Denmark: 'Do not issue emergency passports for use in Belgium (then occupied by German armed forces) unless applicants obliged to go thither by special exigency or authorized by Red Cross or Belgian Relief Commission.' See III Hackworth, Digest of International Law 525—526 (1942). After the United States entered World War I travel to areas of belligerency and to enemy countries was restricted. Passports were marked not valid for travel to these areas, and Congress provided by statute that passports were necessary in order to leave or enter the United States. The congressional Act requiring passports for travel expired in 1921, and soon after the official end of the war passports were marked valid for travel to all countries. See III Hackworth, supra, at 527; Hearings before the Senate Committee on Foreign Relations on Department of State Passport Policies, 85th Cong., 1st Sess., 64 (hereafter Senate Hearings). Thus in 1926 freedom of travel was as complete as prior to World War I. In this atmosphere Congress re-enacted, in virtually identical terms, the 1856 statute, the sole purpose of which, as I have already noted, was to centralize passport issuance. Congress in doing so did not indicate the slightest intent or desire to enlarge the authority of the Executive to regulate the issuance of passports. Surely travel restrictions imposed while the United States was at war and a single telegram instructing ministers to deny emergency passports for a brief time in 1915 for travel to a theatre of war, do not show that Congress, by re-enacting the 1856 Act in 1926, intended to authorize the Executive to impos area restrictions upon travel in peacetime whenever the Executive believed such restrictions might advance American foreign policy. The long tradition of freedom of movement, the fact that no passport area restrictions existed prior to World War I, the complete absence of any indication in the legislative history that Congress intended to delegate such sweeping authority to the Executive all point in precisely the opposite direction.7
65
In Kent v. Dulles, supra, the Court held that the 1926 Act did not authorize the Secretary of State to withhold passports from persons because of their political beliefs or associations. Although it was argued that prior to 1926 the Secretary had withheld passports from Communists and other suspected subversives and that such an administrative practice had been adopted by Congress, the Court found that the evidence of such a practice was insufficient to warrant the conclusion that it had congressional authorization.
66
Yet in Kent v. Dulles the Government pointed to scattered Executive interpretations showing that upon occasion the State Department believed that it had the authority in peacetime to withhold passports from persons deemed by the Department to hold subversive beliefs. In 1901 Attorney General Knox advised the Secretary of State that a passport might be withheld from 'an avowed anarchist.' 23 Op.Atty.Gen. 509, 511. Orders promulgated by the Passport Office periodically have required denial of passports to 'revolutionary radicals.' See Passport Office Instructions of May 4, 1921. A State Department memorandum of May 29, 1956, in summarizing the Department's passport policy, states that after the Russian Revolution 'passports were refused to American Communists who desired to go abroad for indoctrination, instruction, etc. This policy was continued until 1931 * * *.'8
67
These isolated instances of the assumption of authority to refuse passports to persons thought subversive were held insufficient to show that Congress in 1926 intended to grant the Secretary of State discretionary authority to deny passports to persons because of their political beliefs, Kent v. Dulles, supra, at 128, 78 S.Ct., at 1119. This case presents an even more attenuated showing of administrative practice, for there is revealed only one isolated instance of a peacetime area restriction and this closely connected with World War I. Clearly this single instance is insufficient to show that Congress intended to authorize the Secretary to impose peacetime area restrictions.
68
Moreover, just as the more numerous instances of restriction on travel because of political beliefs and associations in wartime were insufficient to show that Congress intended to grant the Secretary authority to curtail such travel in time of peace, see Kent v. Dulles, supra, at 128, 78 S.Ct., at 1119, so here the fact that area restrictions were imposed during World War I does not show that Congress intended to grant the Secretary authority to impose such restrictions in time of peace. In time of war and in the exercise of the war power, restrictions may be imposed that are neither permissible nor tolerable in time of peace. See Kent v. Dulles, supra, at 128, 78 S.Ct., at 1119; cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153. But see Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644. Thus even if the State Department's wartime practic should lead to the conclusion that area restrictions in time of war were sanctioned, it surely does not show that Congress wished to authorize similar curtailment of the right to travel in time of peace.9
69
While the Court intimates that Kent v. Dulles is distinguishable from the present case because in Kent v. Dulles passports were denied on the basis of the applicants' political beliefs, ante, at 13, I find little in the logic of that opinion to support such a distinction. The Court in Kent v. Dulles based its conclusions that the Executive does not have an inherent herent power to impose peacetime passport restrictions and that Congress did not delegate such authority to the Executive on the history of passport restrictions and the constitutional basis of the right to travel. While the Court there mentions that it is dealing 'with beliefs, with associations, with ideological matters,' 357 U.S., at 130, 78 S.Ct., at 1120, a reading of the opinion clearly reveals that its holding does not turn upon such factors. Moreover, the importance of travel to the gathering of information, an activity closely connected with the First Amendment and a right asserted here, seems to be a major reason for the Court's holding in Aptheker and Kent that the right to travel is afforded constitutional protection. Kent v. Dulles thus seems not only relevant, but controlling, in the case presented here.
C. The Nature of the Problem
70
The Statute's Inapplicability To The Problem of Area Restrictions.
71
The Court's interpretation of the 1926 Passport Act not only overlooks the legislative history of the Act and departs from the letter and spirit of this Court's decisions in Kent v. Dulles, supra, and Aptheker v. Secretary of State, supra, but it also implies that Congress resolved, through a sweeping grant of authority, the many substantial problems involved in curtailing a citizen's right to travel because of considerations of national policy. People travel abroad for numerous reasons of varying importance. Some travel for pleasure, others for business, still others for education. Foreign correspondents and lecturers must equip themselves with firsthand information. Scientists and scholars gain considerably from interchanges with colleagues in other nations. See Chafee, op. cit. supra, at 195.
72
Just as there are different reasons for people wanting to travel, so there are different reasons advanced by the Government for its need to impose area restrictions. These reasons vary. The Government says restrictions are imposed sometimes because of political differences with countries, sometimes because of unsettled conditions, and sometimes, as in this case, as part of program, undertaken together with other nations, to isolate a hostile foreign country such as Cuba because of its attempts to promote the subversion of democratic nations. See Senate Hearings 63—69. The Department of State also has imposed different types of travel restrictions in different circumstances. All newsmen, for example, were prohibited from traveling to China, see Senate Hearings 67, but they have been allowed to visit Cuba. See Public Notice 179 (Jan. 16, 1961), 26 Fed.Reg. 492; Press Release No. 24, issued by the Secretary of State, Jan. 16, 1961. In view of the different types of need for travel restrictions, the various reasons for traveling abroad, the importance and constitutional underpinnings of the right to travel and the right of a citizen and a free press to gather information about foreign countries, it cannot be presumed that Congress, without focusing upon the complex problems involved, resolved them by adopting a broad and sweeping statute which, in the Court's view, confers unlimited discretion upon the Executive, and which makes no distinctions reconciling the rights of the citizen to travel with the Government's legitimate needs. I do not know how Congress would deal with this complex area were it to focus on the problems involved, or whether, for example, in light of our commitment to freedom of the press, Congress would consent under any circumstances to prohibiting newsmen from traveling to foreign countries. But, faced with a complete absence of legislative consideration of these complex issues, I would not presume that Congress, in 1926, issued a blanket authorization to the Executive to impose area restrictions and define their scope and duration, for the nature of the problem seems plainly to call for a more discriminately fashioned statute.
73
III. CONCLUSION.
74
In my view it is clear that Congress did not mean the 1926 Act to authorize the Executive to impose area restrictions in time of peace, and, with all deference, I disagree with the Court's holding that it did. I agree with the Court that Congress may authorize the imposition of travel restrictions consistent with constitutional guarantees, but I find it plain and evident that Congress has never considered and resolved the problem. After consideration Congress might determine that broad general authority should be delegated to the Secretary of State, or it might frame a narrower statute. I believe that here, as in other areas, appropriate delegation is constitutionally permissible where some standard for the application of delegated power is provided. See, e.g., Lichter v. United States, 334 U.S. 742, 785, 68 S.Ct. 1294, 1316, 92 L.Ed. 1694. However, in light of my conclusion that the 1926 Act did not deal with area restrictions I do not find it necessary to consider the question of whether the language of the 1926 Act might constitute an unconstitutionally broad delegation of power.
75
In view of the different types of need for area restrictions asserted by the Government, the various reasons for travel abroad, the importance and constitutional underpinnings of the right of citizens and a free press to gather information about foreign countries—considerations which Congress did not focus upon—I would not infer, as the Court does, that Congress resolved the complex problem of area restrictions, which necessarily involves reconciling the rights of the citizen to travel with the Government's legitimate needs, by the re-enactment of a statute that history shows was designed to centralize authority to issue passports in the Secretary of State so as to prevent abuses arising from their issuance by unauthorized persons. Since I conclude that the Executive does not possess inherent power to impose area restrictions in peacetime, and that Congress has not considered the issue or granted such authority to the Executive, I would reverse the judgment of the District Court.
1
This procedural claim was abandoned in the District Court and has not been urged here.
2
Florida Lime & Avocado Growers v. Jacobsen, 362 U.S. 73, 80, 80 S.Ct. 568, 573, 4 L.Ed.2d 568; see also Allen v. Grand Central Aircraft Co., 347 U.S. 535, 74 S.Ct. 745, 98 L.Ed. 933; Lee v. Bickell, 292 U.S. 415, 54 S.Ct. 727, 78 L.Ed. 1337; Sterling v. Constantin, 287 U.S. 378, 53 S.Ct. 190. 77 L.Ed. 375.
3
See also Douglas v. Noble, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590.
4
The convening of a three-judge court in this case surely coincides with the legislative policy underlying the passage of § 2282:
'The legislative history of § 2282 and of its complement, § 2281 * * * 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. * * * 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.' Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154—155, 83 S.Ct. 554, 560, 9 L.Ed.2d 644. Appellant in this case does not challenge merely a 'single, unique exercise' of the Secretary's authority, cf. Phillips v. United States, supra, 312 U.S. at 253, 61 S.Ct. at 484. On the contrary, this suit seeks to 'paralyze totally the operation of an entire regulatory scheme,' indeed, a regulatory scheme designed and administered to promote the security of the Nation.
5
The Secretary of State, rather than the President, imposed the restriction on travel to Cuba. However, Congress has provided that '(t)he Secretary of State shall perform such duties as shall from time to time be enjoined on or intrusted to him by the President relative to * * * such * * * matters respecting foreign affairs as the President of the United States shall assign to the department * * *.' R.S. § 202, 5 U.S.C. § 156 (1958 ed.). The President, in turn, has authorized the Secretary in his discretion 'to restrict a passport for use only in certain countries (or) to restrict it against use in certain countries * * *.' Exec. Order No. 7856, 3 Fed.Reg. 681, 687, 22 CFR § 51.75.
6
United States v. Cerecedo Hermanos y Compania, 209 U.S. 337, 28 S.Ct. 532, 52 L.Ed. 821; Service v. Dulles, 354 U.S. 363, 380, 77 S.Ct. 1152, 1161, 1 L.Ed.2d 1403; National Labor Relations Board v. Gullett Gin Co., 340 U.S. 361, 366, 71 S.Ct. 337, 340, 95 L.Ed. 337.
7
22 Dept. State Bull. 399; 26 id., at 7.
8
Norwegian Nitrogen Products Co. v. United States, supra, 288 U.S. at 313, 53 S.Ct. at 357; Costanzo v. Tillinghast, 287 U.S. 341, 345, 53 S.Ct. 152, 153, 77 L.Ed. 350; United States v. Midwest Oil Co., 236 U.S. 459, 472—473, 35 S.Ct. 309, 312—313, 59 L.Ed. 673.
9
Act of May 22, 1918, 40 Stat. 559; Act of June 21, 1941, 55 Stat. 252.
10
Pres.Proc. No. 3004, 67 Stat. c31; cf. Exec.Order No. 11037, 3 CFR 621 (1959—1963 Comp.).
11
Pres.Proc. No. 3004, 67 Stat. c31, which was issued in 1953 pursuant to § 215, stated that the departure and entry of citizens would be governed by 'sections 53.1 to 53.9, inclusive, of title 22 of the Code of Federal Regulations.' 22 CFR § 53.8 (1949 ed.) provided:
'Nothing in this part shall be construed to prevent the Secretary of State from exercising the discretion resting in him to refuse to issue a passport, to restrict its use to certain countries, to withdraw or cancel a passport already issued, or to withdraw a passport for the purpose of restricting its validity or use in certain countries.'
12
Aptheker v. Secretary of State, supra, 378 U.S. at 505 514, 84 S.Ct. at 1662—1663; Schachtman v. Dulles, 96 U.S.App.D.C. 287, 290 (opinion of the court), 293 (Edgerton, J., concurring), 225 F.2d 938, 941, 944 (1955); cf. Bolling v. Sharpe, 347 U.S. 497, 499—500, 74 S.Ct. 693, 694—695, 98 L.Ed. 884; Freedom to Travel (Report of Special Committee to Study Passport Procedures, Ass'n of the Bar of the City of New York), pp. 53, 55 (1958); Chafee, Three Human Rights in the Constitution of 1787, p. 192 (1956).
13
Compare Kent v. Dulles, supra; Aptheker v. Secretary of State, supra; Universal Declaration of Human Rights, Art. 13 (quoted, S.Doc.No.123, 81st Cong., 1st Sess., p. 1157); Toyosaburo Korematsu v. United States, 323 U.S. 214, 218, 65 S.Ct. 193, 195, 89 L.Ed. 194.
14
Cuba, Dept. State Pub. No. 7171, pp. 25—36 (1961); see also Ball, U.S. Policy Toward Cuba, Dept. State Pub. No. 7690, p. 3 (1964); 47 Dept. State Bull. 598—600.
15
See Report of the Special Committee to Study Resolutions II.1 and VIII of the Eighth Meeting of Consultation of Ministers of Foreign Affairs, OEA/Ser. G/IV, pp. 14—16 (1963); 48 Dept. State Bull. 517, 719; Resolution I, Final Act, Ninth Meeting of Consultation of Ministers of Foreign Affairs, OEA/Ser. F/II.9 (1964).
16
R.S. § 2001, 22 U.S.C. § 1732 (1958 ed.), provides:
'Whenever it is made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign government, it shall be the duty of the President forthwith to demand of that government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release; and all the facts and proceedings relative thereto shall as soon as practicable be communicated by the President to Congress.'
17
Indeed, it was precisely this sort of consideration which led us to hold in Kent v. Dulles, supra, 357 U.S. at 126—127, 78 S.Ct. at 1118—1119, that the right to travel is protected by the Fifth Amendment. See also Aptheker v. Secretary of State, supra, 378 U.S. at 520, 84 S.Ct. at 1671 (Douglas, J., concurring).
18
The Solicitor General does not state with particularity the Government's position as to the reach of § 215(b) with regard to area restrictions; he simply asserts that § 215(b) 'confirms the authority of the Secretary to impose area restrictions in the issuance of passports and prohibits travel in violation thereof.' Brief for Appellees, p. 56; see also id., at 10—11, 60—61.
1
44 Stat. 887, 22 U.S.C. § 211a (1958 ed.).
2
Act of June 16, 1933, 48 Stat. 195.
3
66 Stat. 190, 8 U.S.C. § 1185 (1964 ed.).
*
Time after time this Court has been alert to protect First Amendment rights which are exercised in a context of overt action which is subject to governmental regulation. 'In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.' Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231. See, e.g., Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Cantwell v. State of Connecticut, supra; Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; Saia v. People of State of New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574; Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280; Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301; NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405; Aptheker v. Secretary of State, supra.
1
U.S. Dept. of State, Summary of Passport Statistics Jan. 1965.
2
Very recently the President has requested citizens voluntarily and temporarily to limit their travel abroad because of balance of payments difficulties.
3
See U.S. Dept. of State, The American Passport 10 (1898).
4
Except for the years 1918 to 1921 and since 1941 American law did not require a passport for travel abroad. Currently, however, § 215(b) of the Immigration and Nationality Act of 1952, 66 Stat. 190, 8 U.S.C. § 1185(b) (1958 ed.), makes it unlawful, after the proclamation of a national emergency to 'to depart from or enter, or attempt to depart from or enter, the United States * * * (without) a valid passport.' The Court expresses no views nor do I upon the validity or proper interpretation of this provision, which is currently involved in other litigation not now before us.
5
The following changes have been made in the wording of this provision of the statute between 1856 and the present: When the statute was placed in the Revised Statutes of 1874, the words 'shall be authorized to' were replaced by 'may.' R.S. § 4075. On June 14, 1902, the provision was amended to increase the list of those whom the Secretary could cause to grant, issue and verify passports in foreign countries by adding the words 'and by such chief or other executive officer of the insular possessions of the United States.' 32 Stat. 386. When the provision was re-enacted in 1926, the list of those whom the Secretary could cause to grant, issue and verify passports in foreign countries was modified by substituting for the words 'by such diplomatic or consular officers of the United States,' the words 'by diplomatic representatives of the United States, and by such consul generals, consuls, or vice consuls when in charge, as the Secretary of State may designate,' and the words 'such passports' were substituted for the words 'any such passport.' 44 Stat. 887.
6
See Kent v. Dulles, supra, 357 U.S. at 128, 78 S.Ct., at 1119, where the Court implies that regulation of travel based upon disloyalty to the country during wartime presents quite a different question from such regulation in time of peace.
7
The Court also argues that State Department imposition of area restrictions after 1926 shows that the Act granted power to impose such restrictions, for a consistent administrative interpretation must be given weight by the courts. Ante, at 11. See Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796. With all deference, I do not find a consistent administrative interpretation of the 1926 Act. While area restrictions have been imposed by the Executive from time to time since 1926, see Senate Hearings 64—65, the Executive has also indicated doubts as to its authority to restrict passports. In 1958 the President formally asked Congress for 'clear statutory authority to prevent Americans from using passports for travel to areas where there is no means of protecting them or where their presence would conflict with our foreign policy objectives.' H.R.Doc. No. 417, 85th Cong., 2d Sess. In 1957 the Report of the Commission on Government Security expressly recommended that it be made unlawful 'for any citizen of the United States to travel to any country in which his passport is declared to be invalid.' S.Doc. No. 64, 85th Cong., 1st Sess., 475. Moreover, when the Department of State announced limitations on the use of passports for travel to Red China, the accompanying press release stated that the restrictions did not forbid American travel to the areas restricted. See Senate Hearings 40; Report of the Association of the Bar of the City of New York, Freedom to Travel 70 (1958). In any event I believe that the evidence set out above that Congress did not mean the 1926 Act to authorize the imposition of area restrictions is sufficiently strong so that it is not overcome by the fact that after 1926 the Department on occasion asserted that it had an inherent power to impose such restrictions.
8
See the Report of the Commission on Government Security 470, 471 (1957).
9
Although the United States has severed its diplomatic ties with the Castro government, and, as the Court correctly points out, ante, at 14—15, justifiably regards the Castro regime as hostile to this country, the United States is not in a state of war with Cuba. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410, 84 S.Ct. 923, 931, 11 L.Ed.2d 804.
| 23
|
381 U.S. 90
85 S.Ct. 1253
14 L.Ed.2d 239
FEDERAL POWER COMMISSION, Petitioner,v.UNION ELECTRIC COMPANY.
No. 123.
Argued March 2, 1965.
Decided May 3, 1965.
Rehearing Denied June 7, 1965.
See 381 U.S. 956, 85 S.Ct. 1796.
Ralph S. Spritzer, Washington, D.C., for petitioner.
Robert J. Keefe, St. Louis, Mo., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
Section 23(b)1 of the Federal Power Act2 requires any person desiring to construct a dam or other project on a nonnavigable stream, but one over which Congress has jurisdiction under its authority to regulate commerce, to file a declaration of intention with the Federal Power Commission. If the Commission finds that 'the interests of interstate or foreign commerce would be affected by such proposed construction,' the declarant may not construct or operate the project without a license. The issue here is whether the construction of a pumped storage hydroelectric project generating energy for interstate transmission is one which would affect the 'interests of interstate or foreign commerce' within the intendment of the Act.
I.
2
Respondent Union Electric Co. (Union), operating generating plants and an interconnected transmission and distribution system in Missouri, Illinois, and Iowa, filed a declaration of intention pursuant to § 23(b) to construct a pumped storage hydroelectric facility, the Taum Sauk installation, as a part of Union's interstate system. The pumped storage plant, an engineering innovation of growing use, is to supplement the energy produced by other plants during periods of peak demands. During such periods it generates energy through use of hydroelectric units driven by water falling from an elevated reservoir into a lower pool.3 During off-peak periods it uses energy from other sources to pump water from the lower pool back to the headwater pool.4 The project is capable of creating up to 350 megawatts and the energy created will be utilized in Missouri, Illinois, and possibly Iowa. Taum Sauk is to be located on the East Fork of the Black River, about four miles above the confluence of these waters.5 The East Fork is a nonnavigable tributary of the Black River, itself a navigable stream along with the White River into which it flows.
3
The FPC found the East Fork was a stream 'over which Congress has jurisdiction under its authority to regulate commerce,' since it is a headwater of a navigable river system. The project would affect the interests of commerce and would require a license, the FPC also held, both because it contemplated the utilization of water power for the interstate transmission of electricity and because it would affect downstream navigability, 27 F.P.C. 801. The Court of Appeals reversed, 326 F.2d 535 (C.A.8th Cir.) holding that the only 'commerce' which is relevant to the FPC's determination under § 23(b) is commerce on the downstream navigable waterway and that the project in question would have no significant impact on water commerce.6 Absent an effect on downstream navigability, or on irrigation development, flood control projects or planned utilization of water resources, matters which might affect the interests of water commerce, a water power project located on the headwaters of a navigable river is a 'local' activity beyond the licensing power and consequent regulatory controls of the FPC. Because the question is an unresolved one of jurisdiction over an important class of hydroelectric projects, we granted certiorari, 379 U.S. 812, 85 S.Ct. 41, 13 L.Ed.2d 26, and now reverse the judgment of the Court of Appeals. We have determined that its limitation of the FPC's licensing power to projects affecting commerce on navigable waters is founded upon an erroneous reading of the language of § 23(b) and the design and purposes of the Federal Water Power Act.
II.
4
To focus the inquiry, it is well to state what is not involved in this case. There is no question that the interstate transmission of electric energy is fully subject to the commerce powers of Congress. Public Utilities Comm'n of Rhode Island v. Attleboro Steam & Electric Co., 273 U.S. 83, 86, 47 S.Ct. 294, 295, 71 L.Ed. 549; Electric Bond & Share Co. v. Securities & Exchange Comm'n, 303 U.S. 419, 432—433, 58 S.Ct. 678, 681—682, 82 L.Ed. 936. Nor is there any doubt today that projects generating energy for such transmission, such as Taum Sauk, affect commerce among the States and therefore are within the purview of the commerce power, quite without regard to the federal control of tributary streams and navigation. See National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 40—41, 57 S.Ct. 615, 625—626, 81 L.Ed. 893; National Labor Relations Board v. Fruehauf Trailer Co., 301 U.S. 49, 57 S.Ct.642, 81 L.Ed. 918; Consolidated Edison Co. of New York v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126; Katzenbach v. McClung, 379 U.S. 294, 301—304, 85 S.Ct. 377, 382—384, 13 L.Ed.2d 290. But see United States v. Appalachian Electric Power Co., 4 Cir., 107 F.2d 769, rev'd on other grounds, 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243.7 Thus, there are no constitutional doubts or barriers to the FPC's interpretation. The only question is whether Congress has required a license for a water power project utilizing the headwaters of a navigable river to generate energy for an interstate power system. We think an affirmative answer is required by both the language and purposes of the Act.
5
The language of the Act, in our view, plainly requires a license in the circumstances of this case. Section 23(b)8 prohibits construction of nonlicensed hydroelectric projects on navigable streams, regardless of any effect, detrimental or beneficial, on navigation or commerce by water and requires those proposing a project on a nonnavigable stream to file a declaration of intention and to come before the Commission for a determination of whether the 'interests of interstate or foreign commerce would be affected,' a determination which obviously does not speak in terms of the interests of navigation or water commerce. Plainly the provision does not require a license only where 'the interests of interstate or foreign commerce on navigable waters would be affected.' Although transportation on interstate waterways is interstate commerce, the phrase 'affect the interests of commerce' on its face hardly supports any claim that Congress sought to regulate only such transportation. Rather, it strongly implies that Congress drew upon its full authority under the Commerce Clause, including but not limited to its power over water commerce. '(H)alf a dozen enactments, other than the National Labor Relations Act are sufficient to illustrate that when (Congress) wants to bring aspects of commerce within the full sweep of its constiutional authority, it manifests its purpose by regulating not only 'commerce' but also matters which 'affect', 'interrupt,' or 'promote' interstate commerce. * * * In so describing the range of its control, Congress is not indulging stylistic preferences.' Polish National Alliance of United States, etc. v. National Labor Relations Board, 322 U.S. 643, 647, 64 S.Ct. 1196, 1198, 88 L.Ed. 1509.
6
The scope of this language is not restricted by the earlier clause in § 23(b) limiting the filing requirements to projects on nonnavigable streams 'over which Congress has jurisdiction under its authority to regulate commerce' that is, tributaries of river systems necessitating supervisory power to preserve or improve downstream navigability or water commerce generally. See United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136; State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 61 S.Ct. 1050, 85 L.Ed. 1487. This language merely designates those who must file a declaration of intention—al those who would locate a water power project on a nonnavigable stream within the jurisdiction of Congress are required to declare their intention so that the Commission may determine the necessity for a license. Congress then proceeds to invoke its full authority over commerce, without qualification, to define what projects on nonnavigable streams are required to be licensed. Respondent asserts that commerce must mean the same thing in both the filing and licensing requirements of § 23(b); because of the allusion to water commerce in the filing provision, the Commission's inquiry into the effect of the project on commerce must be limited to the source of Congress' power over the stream. Nothing in the structure or syntax of § 23(b) compels this conclusion. Indeed, in describing in distinct terms the standard for who must file and what must be licensed,9 the more compelling inference is that Congress intended the inquiry into the project's effect on commerce to include, but not be limited to, effect on downstream navigability.10
7
Turning to the purposes of the Federal Water Power Act, enacted in 1920, we 58 Cong.Rec. 1932, 1936—1940; 59 Cong.Rec. 241, 1039—1042, 1173—1174. See indicates that the Commission was to restrict its considerations under § 23(b) to effect on navigability. There is much to indicate the contrary.
8
The central purpose of the Federal Water Power Act was to provide for the comprehensive control over those uses of the Nation's water resources in which the Federal Government had a legitimate interest; these uses included navigation, irrigation, flood control, and, very prominently, hydroelectric power—uses which, while unregulated, might well be contradictory rather than harmonious.11 Prior legislation in 1890 and the Rivers and Harbors Act of 1899,12 prohibiting the erection of any obstruction to navigation, including those on nonnavigable feeders, United States v. Rio Grande Dam & Irrivation Co., 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136, and requiring the consent of Congress and approval of the Secretary of War before constructing a bridge, dam, or dike along or in navigable waters, was thought inadequate, for it accommodated only the federal interest in navigation. As this Court has had occasion to note before, the 1920 Federal Water Power Act 'was the outgrowth of a widely supported effort of the conservationists to secure enactment of a complete scheme of national regulation which would promote the comprehensive development of the water resources of the Nation, in so far as it was within the reach of the federal power to do so * * *.' First Iowa Hydro-Electric 33 U.S.C. §§ 401, 403 (1958 ed.). U.S. 152, 180, 66 S.Ct. 906, 919, 90 L.Ed. 1143. The principal use to be developed and regulated in the Act, as its title indicates, was that of hydroelectric power to meet the needs of an expanding economy.13
9
The provisions of the Act reflect these objectives. The preface states that besides navigation and the creation of the Commission, the Act was 'to provide for the * * * development of water power; the use of the public lands in relation thereto * * * and for other purposes.' 41 Stat. 1063. Section 10(a), as amended, requires as a condition for obtaining a license that the proposed project 'be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, and for other beneficial public uses * * *.'14 Other provisions regulate the operations, services, charges, and duration of hydroelectric plants,15 'provisions * * * not essential to or even concerned with navigation as such,' but which 'have an obvious relationship to the exercise of the commerce power.' United States v. Appalachian Electric Power Co., 311 U.S. 377, 424, 427, 61 S.Ct. 291, 307, 308, 85 L.Ed. 243. In order to insure comprehensive control over the utilization of the Nation's waterways, 'navigable stream' was broadly defined to include the interrupting falls, shallows, rapids and the waterways authorized by or recommended to Congress for improvements;16 and other recognized sources of federal authority were invoked, such as jurisdiction over public lands and national forests.17
10
If the comprehensive development of water power, 'in so far as it was within the reach of the federal power to do so,' First Iowa Hydro-Electric Coop. v. Federal Power Comm'n, 328 U.S., at 180, 66 S.Ct. at 919, was the central thrust of the Act, there is obviously little merit to the argument that § 23(b) requires a license when the interests of water commerce are affected but dispenses with the license when other commerce interests are vitally involved. The purposes of the Act are more fully served if the Commission must, as it held in this case, consider the impact of the project on the full spectrum of commerce interests.
III.
11
Union's earnest position, however, is that the legislative history of the Act reveals a more limited purpose and requires a narrower construction of § 23(b). The core of the argument is that the constitutional basis for the Act generally and for § 23(b) in particular was the authority of Congress over navigation, that Congress invoked only this power, and no other, and that § 23(b) accordingly provides for no greater control over projects on nonnavigable streams than is necessary to protect downstream navigability. On these matters, it is said, both conservations and opponents of the Act agreed. Moreover, the argument continues, the limited reach of § 23(b) is confined by the repeated references to navigation and to congressional power over it in the course of committee hearings and reports on the 1935 amendments to the Act.
12
We cannot distill as much as Union does from the long and intense legislative struggle to enact what was a decided innovation in federal policy. The Act unquestionably involved an invocation of the congressional power over navigation under the Commerce Clause, since it required a license to build any water power project on a navigable stream, broadly defined,18 regardless of any actual effect on navigation. There was, consequently, considerable debate about the scope and extent of the federal power over river navigation, about the definition of 'navigable waters' and about the authority of Congress to impose controls and conditions having little relevance to the protection of navigation.19 Some thought the Commerce Clause did not extend to anything but the navigable mainstream itself, and then only for the purpose of preserving or improving water transportation. This broad objection to the Act found expression in remarks directed at § 23(b) and in assertions that the power over navigation was not sufficient to require the licensing of projects on nonnavigable streams, save perhaps where downstream navigability was substantially affected.20 Since the opponents of the Act mounted a major attack on the federal power over navigation, and this was a well-recognized basis of Commerce Clause authority, the proponents defended on this ground. Navigation and federal power over it hence permeated the debates, and statements reflecting the understandings and disagreements over these issues understandably constitute a considerable part of the context in which the Act was enacted.
13
But none of this history can fairly be said to meet, much less determine, the question presented here. That question is not whether Congress exercised its authority over navigation in the Federal Water Power Act, which it most assuredly did, but whether in enacting § 23(b) it also invoked its full Commerce Clause authority over hydroelectric projects located on waters subject to federal jurisdiction. The fact that there were debates over the extent of federal power over navigation, or over navigable or nonnavigable streams, sheds little light on whether Congress did, or did not, intend to rely on other aspects of its power over commerce when it directed a Commission determination of the effects of a proposed project on the 'interests of commerce.' It is true that the debates on § 23(b), taking the course that they did, contain no express references to interstate commerce in electrical energy, perhaps because the authority to regulate the production of goods destined for interstate shipment was far less defined and understood at that time, see Hammer v. Dagenhart, 247 U.S. 251, 38 S.Ct. 529, 62 L.Ed. 1101, decided in 1918, and perhaps because no one was inclined to inject other constitutional issues into the ongoing debates.21 But the Act which emerged from these debates, and § 23(b) in particular, was couched in terms which reached beyond the control of navigation and forms no support for the proposition that Congress intended to equate the 'interests of commerce' with those of navigation.22
14
Indeed, this history indicates that Congress was differentiating between the two. The House version of § 23(b) granted permission to construct a dam on a nonnavigable stream and provided for a license if the Commission found the improvement justified for the purpose of improving or developing the waterway 'for the use or benefit of navigation in interstate or foreign commerce.'23 The Senate Committee, along with the expansion of the definition of navigable waters, amended this to require the Commission to make an immediate investigation and to prohibit the construction without a license if the Commission found that 'the interests of interstate or foreign commerce would be affected.'24 Only if the Commission did not so find was the declarant granted permission to construct upon compliance with state laws. No one offered any explanation for the substitution of the inclusive term 'affect the interests of interstate commerce.'25 But conservationists and opponents seemed to agree that the Act embodied the full measure of Congress' authority under the Commerce Clause to regulate hydroelectric projects.26 And there is no evidence that the sponsors of the Act, who prevailed in securing its enactment in the broad terms they drafted, intended a construction of interstate or foreign commerce narrower than their constitutional counterparts. In the face of numerous objections to this exercise of federal authority, we find it of compelling significance that the Congress adopted comprehensive language and refrained from writing any limitation or reference to navigation into § 23(b).
15
The materials concerning the 1935 amendments do not alter our conclusion. Here the hearings and reports contained references to navigation and to the federal authority over navigable and nonnavigable streams.27 The House Report, for example, stated that 'every person intending to construct a project which might affect navigation would be required to come to the Commission for a determination of the interests of the United States.' H.R.Rep. No. 1318, 74th Cong., 1st Sess., 26. To the same effect, see S.Rep. No. 621, 74th Cong., 1st Sess., 46—47. Such statements clearly refer to the filing requirement of § 23(b), which was the subject of the committee amendment. Only persons constructing projects on nonnavigable feeders of navigable waters need file a declaration of intention. The committee statements are thus quite accurate in this respect, but they do not illuminate the licensing provision of § 23(b), as distinct from its filing requirement, nor do they resolve the issue of which projects among those which might affect navigation are required to be licensed. They do not, explicitly or implicitly, exempt from licensing those projects having no effect on navigation. The reports do not equate the 'interests of commerce' with those of water transportation.
16
It is true that there are no express references in the reports or the debates to other aspects of the commerce power in connection with § 23(b), but the reports reflect the same broad intent as the earlier deliberations to secure federal control over all water power projects involving the utilization of the Nation's river systems.
17
'The act would be greatly strengthened by enabling the Commission to preserve control over ann projects with which the Federal Government has any valid concern.' S.Rep. No. 621, 74th Cong., 1st Sess., 47.
18
See also H.R.Rep. No. 1318, 74th Cong., 1st Sess., 26. And on the floor of Congress objections to federal control over projects on nonnavigable streams, similar to those voiced in 1920, were again rejected as inconsistent with effective water power regulation. 79 Cong.Rec. 10568. Moreover, there was promptly eliminated an amendment to § 23 which would have required a license only when the 'interests of interstate or foreign commerce would be directly affected or burdened by such proposed construction.'28
19
Nor can we ignore the actual effect of the filing requirement added in 1935. The applicable provision prior to this amendment, § 9 of the Rivers and Harbors Act, 30 Stat. 1151, forbidding obstructions to navigation, was adequate to insure that projects with a substantial effect on downstream navigability would be brought before the Commission. Persons intending to construct a project which would likely have no such effect, such as some pure pumped storage installations, could decline to file a declaration of intention with impunity. Thus the 1935 amendment made a difference principally in regard to projects which predictably have little, if any, effect on navigation but a significant effect on interstate commerce. Respondent would have us assume this difference was not intended, although both the Committees stated that the amendment would enable 'the Commission to preserve control over all projects with which the Federal Government has any valid concern.' S.Rep.No. 621, 74th Cong., 1st Sess., 47; H.R.Rep. No. 1318, 74th Cong., 1st Sess., 26. In light of the necessary purport of this amendment and the breadth of the federal interest in hydroelectric projects expressed in the 1920 Act the preoccupation of the Commission and the committees with navigation, while not without significance, does not overcome the clear import of the language and the purposes of the Act.
20
The respondent asserts that an anomalous consequence flows from the Commission's construction of the Act and its view that steam plants generating large amounts of energy for interstate transmission are not within the scope of § 23(b), although located along a stream over which Congress has jurisdiction. Since the Commission's jurisdiction here rests solely on the interstate transmission of energy, there can be no basis for distinguishing between a steam plant and a hydroelectric facility both generating energy for interstate use. The Court of Appeals, after noting that the generation of electric energy is a local or intrastate activity, concluded from this argument that '(t)he Commission's jurisdiction * * * must logically rest upon its delegated congressional jurisdiction over the interests of commerce on navigable waters.' 326 F.2d, at 551. On this reasoning either the Act should, but does not, require a license for a steam plant when situated on the navigable mainstream itself, or should not, but does, require a license for a hydroelectric plant, pumped storage or otherwise, situated on the mainstream but which has no demonstrable effect, or a beneficial effect, on navigability. The answer to this conundrum is that unlike Part II of Title II of the Public Utility Act of 1935, under which the Commission regulates various aspects of the sale and transmission of energy in interstate commerce, Part I, the original Federal Water Power Act, is concerned with the utilization of water resources and particularly the power potential in water. In relation to this central concern of the Act,29 the distinction between a hydroelectric project and a steam plant is obvious, and meaningful, although both produce energy for interstate transmission.30
21
Reversed.
22
Mr. Justice GOLDBERG, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.
23
I agree with the Court that there 'is no question that the interstate transmission of electric energy is fully subject to the commerce powers of Congress,' and that projects generating energy for such transmission, whether they use water or steam, 'are within the purview of the commerce power, quite without regard to the federal control of tributary streams and navigation.' Ante, at 94. The basic question here presented, however, is one of statutory interpretation: whether Congress exercised fully its commerce power, requiring licenses of those whose projects, built on nonnavigable streams, affect interstate or foreign commerce in any way, or whether Congress wished to require licenses only of those whose projects affect interstate or foreign commerce on navigable waters. From the time the provision in question was enacted in 1920 until 1962 the Federal Power Commission believed the latter interpretation to be correct and did not attempt to require a license unless commerce on navigable waters was affected. In 1962, however, the Commission 'ruled for the first time that (a) hydroelectric project to be constructed in and to utilize nonnavigable waters for the purpose of developing power for interstate use * * * cannot be constructed without an FPC license * * * because it would affect the interests of interstate commerce since the power would be used to supply markets in (other States).' 'New Regulatory Policies,' Forty-second Annual Report of the Federal Power Commission 23 (1962).1 I believe that the Commission's earlier interpretation, consistently followed for many years, correctly reflected congressional intent.
24
The Court's conclusion, supporting the Commission's new theory that a license is required if a project affects the interests of interstate or foreign commerce in any way seems to be based upon an overly literal reading of the statute. The statute provides that a license is required if the Commission finds that 'the interests of interstate or foreign commerce would be affected by such proposed construction.' With all deference, I do not believe that the interpretation of the Court and the Commission that this language establishes that Congress intended to exercise the full reach of its commerce power can be maintained, for the legislative history of this provision clearly reveals that the 'interests of * * * commerce' to which Congress refers are the interests of commerce on navigable waters. Statements by congressional proponents of the Federal Water Power Act and others, when the Act was first enacted in 1920, make clear an intent that licensing be required only when interests of commerce on navigable waters are affected.2 Moreover, after a considerable period during which the Commission consistently interpreted the licensing provision in accordance with this congressional intent, the statute was re-enacted in 1935. At that time statements of the drafters of the Act3 and the Senate and House Reports on the Act4 again clearly indicated an intent to have the licensing requirement apply only when a project affects interests of commerce on navigable waters.
25
It may well be, as the Court intimates, that some of the Act's proponents believed that Congress constitutionally could require licensing only where navigable waters are affected.5 If the legislative history showed an intent to exercise the commerce power to its full extent, notwithstanding doubts as to the reach of this power, I would accept the reading of the statute given by the Court. However, the history, in my view, reveals an express congressional intent to limit the application of the licensing provision to navigable waters irrespective of the scope of the commerce power. There is no indication that anyone envisaged or desired the application of the licensing provision to the type of project here involved which affects interstate commerce only because the electricity produced crosses state lines.
26
Moreover, to interpret the provision as the Court does today produces a substantial anomaly, for steam generating plants that affect interstate commerce in a manner identical to that of hydroelectric plants such as the one involved here would not be required to obtain a license from the Commission, yet hydroelectric plants would have to obtain one. The Court attempts to explain away this anomaly, by stating that in view of the original Federal Water Power Act's concern with 'the power potential in water,' 'the distinction between a hydroelectric project and a steam plant is obvious, and meaningful, although both produce energy for interstate transmission.' Ante, at 110. However, even in terms of the 'power potential in water,' I fail to find a relevant distinction between a plant which artificially pumps water to an elevated reservoir in off-peak periods allowing it to fall and generate electricity at peak periods and a plant which heats water to create steam which generates electricity. I see no purpose of the Act that justifies producing this anomaly in the regulatory scheme. Under my view, of course, when interstate or foreign commerce is affected, Congress can constitutionally require licenses of both steam and hydroelectric projects, of either steam or hydroelectric projects, or of neither. The legislative history here, however, establishes to my satisfaction that it has required licenses of neither steam plants nor the type of hydroelectric plant here involved, and in light of this legislative history I agree with the Court of Appeals that Congress intended that a license be required only where the interests of commerce on navigable waters are affected.6
27
APPENDIX A TO OPINION OF MR. JUSTICE GOLDBERG, DISSENTING.
28
Excerpts from Senate debate on May 27, 1920, 59 Cong.Rec. 7730.
29
'Mr. KING. This bill, as I interpret it, would make every stream navigable, even to the headwaters of the smallest stream, or up to the snow line, where the snow melts and finds its way by little trickles and rivulets into some other stream. For instance, this language, if the Senator will pardon me_ _
30
'Mr. NELSON. Let me call the attention of the Senator to the first part of the amendment, which reads:
31
'Navigable waters' means those parts of streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States_ _
32
'Mr. KING. The Senator will see that that does not impose any limitation upon the Federal Government as to what it may regulate. When it confers the power to regulate commerce among the States, et cetera, that is not a definition of what commerce is or the extent to which Congress may control streams. The Supreme Court has held, as I understand, that tributaries of tributaries of other tributaries, if any part of such tributary of the final stream was navigable, would be under the cognizance of the Federal Government. That would carry up to the snow line.
33
'Mr. NELSON. The court's decision only goes to this extent and the facts in the case must be considered—that as to the tributaries that supply water to the main stream, which is in fact and in law navigable, Congress of necessity must have sufficient jurisdiction over those feeders to prevent their being dammed up and thereby preventing the supply of water running into the main stream. That is the extent of the decision and the Senator ought to see that that is inevitable, for if all the feeders of our great rivers, such as the Mississippi, the Missouri, and other navigable rivers, could be dammed up so that water would be kept away from them they would cease to be navigable.
34
'Mr. KING. I am not arguing that question.
35
'Mr. NELSON. So the Government has jurisdiction to the extent that the supply of water can not be cut off from a navigable stream.
36
'Mr. KING. Obviously, then, under the Senator's contention, the Federal Government would have jurisdiction over the snow line, and, as the Senator from Colorado (Mr. Thomas) sotto voce says, it would have jurisdiction of the clouds which produce the snow which melts and produces the spring which produces the tributary flowing into the river which is navigable. So that the Federal Government may stretch out its powerful and omnipotent hand until it can grasp the snow in the mountains and say, 'We have jurisdiction over that.'
37
'Mr. NELSON. That is a forced construction.
38
'Mr. KING. I think that the Senator's position leads to that.
39
'Mr. NELSON. It does not lead to that, and that is not my position. The Senator a few moments ago referred to the Rio Grande case. The court intimated incidentally in that opinion that the control of Congress extended to the feeders of the stream, but when it comes to applying the principles of law to the facts in each case they must be measured by the facts. The court did not mean to decide that the feeders were navigable. What the court meant to say was that the Federal Government has sufficient jurisdiction over the feeders to see to it that the supply of water shall not be destroyed or so diminished in the feeders as to prevent the main stream from being navigable. The Senator on reflection ought to see that if the Government had no control whatever of the feeders if such a thing were possible, although I can not conceive it if it were possible for the States or individuals to dam up the feeders and prevent a drop of water flowing into the main navigable stream, they could dry up the main stream and destroy navigation on it. Except in those sections where the water is exhausted for irrigation, the erection of dams in feeders, as a matter of fact, for instance, in the East and in the Middle West, does not diminish the supply of water, for the water flows over the dam in one way or another and enters the feeders and then the main stream. It is only in the arid West where it is possible to divert water entirely for irrigation purposes from the main stream.
40
'To what extent can that be done? I take it that if a case of that kind should come before the court, the court would consider both the rights of the farmers, who needed the water for irrigation, and the interests of commerce requiring water for navigation, and the question would be one of fact in each case. Does the diversion of the water of a certain feeder of a certain stream for irrigation purposes diminish the quantity of the water to such an extent as to destroy the navigability of the main stream? If the diversion of the water did not diminish the navigability of the main stream, the Government would have no control whatever. Furthermore, it would only have control to the extent of the supply of water needed to subserve the purposes of real navigation.
41
,'we are not seeking to interfere with the present situation, and no matter what we put into this bill, if the Senator from Maine will excuse me a moment longer, we can not change the dicisions of the Supreme Court as to their determination of the words 'navigable stream.' We could not undo by this legislation, if we should make the effort, what they have decided. We have made no such attempt. We have simply said that those parts of streams or bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, and which in either their natural or improved conditions, and so forth, are navigable, shall be considered to be navigable streams. That is all we have said. We have simply left the matter where the courts have left it; and if we undertook to change the law as it is and to say that a certain class of streams which are navigable in fact are not nevigable the Supreme Court would overrule us.' (Emphasis added.)
42
APPENDIX B TO OPINION OF MR. JUSTICE GOLDBERG, DISSENTING.
43
A memorandum prepared by the Federal Power Commission and submitted to the House Committee on Interstate and Foreign Commerce explaining the amendments to the Federal Water Power Act states:
44
'Section 210 of the bill amends section 23 of the Water Power Act. * * * In subsection (b) the present provision that those intending to undertake projects on a nonnavigable tributary of a navigable stream may in their discretion file declaration of such intention with the Commission is changed so as to make it a duty to file such a declaration before proceeding with the construction, maintenance or operation of any project on such waters. Furthermore, a provision is inserted expressly making it unlawful to construct a project on any navigable waters without a license granted pursuant to the act. This latter provision is in substance the result achieved by the River and Harbor Act of 1899 when read with the Water Power Act. It is thought desirable to bring together the regulations dealing with power projects in a single act. Under this section as amended, every person intending to construct a project which might conceivably affect any navigable waters would be under the duty of coming to the Commission. The act would be greatly strengthened by enabling the Commission to preserve control over all projects with which the Federal Government has any valid concern.' Hearings before the House Committee on Interstate and Foreign Commerce, 74th Cong., 1st Sess., 391. (Emphasis added.) Dozier DeVane, Solicitor for the Federal Power Commission, testified as follows concerning the amendments which the Commission had prepared:
45
'Mr. MARTIN. Although it may be rather in the form of repetition, the memorandum impresses me that the contention of Mr. Mapes in section 3 is broader, from the standpoint of commerce in the way of a power, than the language in section 4.
46
'It occurred to me that you could just leave those words 'navigable waters in the United States' in the section and then add as defined in section 3.
47
'Mr. DEVANE. No, sir; what we are attempting to do is to make it clear that the Commission has the authority to issue (a) license under section 4 in cases that arise under section 23 of the act.
48
'Mr. MARTIN. The addition of the words defined in section 3, added to 'navigable waters of the United States,' however, would incorporate the section 3 definition of navigable waters.
49
'Mr. DEVANE. Of course, we think it exists without that amendment.
50
'Mr. Ryan calls my attention to the fact that section 3 might be considered to apply only to navigable waters, while section 23 applies to nonnavigable waters as well.
51
'The jurisdiction of Congress extends beyond the navigable waters. It extends to nonnavigable waters where anything you do in those rivers or streams might affect navigation and those are the cases which fall under section 23 of the act.
52
'Mr. CROSSER. What was that last statement? I did not quite hear it.
53
'Mr. DEVANE. Section 23 applies to nonnavigable waters, where anything that is done in those waters might affect interstate or foreign commerce.
54
'The CHAIRMAN. I think the committee has your position on that. You may pass on.
55
'Mr. MAPES. Does the Commission arrive at its conclusion, reach about the same conclusion, as to whether a plant should obtain the license or not, as Congress and the Board of Engineers do when they determine that a stream is navigable and that, therefore, people who desire to build a bridge across it, must get the consent of Congress to do it?
56
'Mr. DEVANE. The Commission in the first instance refers these declarations of intention to the War Department, the Engineer Corps of the War Department, and an investigation and recommendation is made by that Department, with reference to the effect upon interstate or foreign commerce, and the Commission, if it is necessary after that investigation and report is made, holds hearings, takes evidence, and makes its findings.
57
'The Commission attempts to act according to the facts as they are shown. In very few of the cases is there ever any controversy.
58
'Mr. MAPES. Are these two expressions synonymous, or not: the effect upon interstate commerce, and the navigability of a stream?
59
'Mr. DEVANE. Mr. Mapes, I think they are. Do you want to hear argument on the other side as to whether they are or not?
60
'Mr. MAPES. No.
61
'Mr. DEVANE. I see that you have some knowledge at least of the fact that that question has been debated, but to me it is a question of 'tweedledee and tweedledum.' I cannot take my legal processes to that refinement. There may be a difference; yes, sir. It is conceivable, at least in somebody's mind, that the construction of a project in a certain stream will not at the time in fact have any effect upon interstate or foreign commerce, but that the construction of the project has a potential possibility of affecting interstate or foreign commerce at some future time which will prevent a man from spending money to put commerce on that stream.
62
'Now that is the way the argument runs.
63
'Mr. DEVANE. We are not seeking by any amendment that we propose to enlarge the jurisdiction of the Commission in the waters of the United States over which Congress has control.
64
'Mr. HOLMES. I understood you to say you were, so that you could control other than navigable waters.
65
'Mr. DEVANE. That is the law today.
66
'Mr. HOLMES. Then I misunderstood you in that regard.
67
'Mr. DEVANE. Well, I would like to make that perfectly clear.
68
'We are not extending the power. We are not proposing any amendment that extends the power of the Commission over any waters of the United States that they do not have power over today—not at all.
69
'At this point, Mr. Mapes, I think we might clear up the difficulty that I had in answering a question that you asked me on Saturday.
70
'You will observe that under subsection (b) of section 23, persons desiring to construct projects in waters over which Congress has jurisdiction, but which may not be looked upon as navigable waters, as such, may come to the Commission under a declaration of intention and have determined in advance of the construction whether or not a license is necessary.
71
'That provision in section 23 is broader than the language in section 3, where the definition of navigable waters is used, the one that you were asking me about, on Staturday.
72
'The definition of navigable waters in section 3 applies only to those waters that are in fact navigable.
73
'Section 23 applies to waters that are not in fact navigable, but where construction may affect interstate or foreign commerce.
74
'Mr. MAPES. Yes. Has the court sustained the Commission in that respect, the jurisdiction of the Commission?
75
'Mr. DEVANE. Of nonnavigable waters?
76
'Mr. MAPES. Yes.
77
'Mr. DEVANE. You are asking about the jurisdiction of Congress over these nonnavigable waters, that affect navigation?
78
'Mr. MAPES. Yes.
79
'Mr. DEVANE. Yes; the jurisdiction of Congress over such streams was upheld in the case of the United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136. That was decided under the Rivers and Harbors Act of 1899, which in effect is the same as section 23 of this act.'
80
Hearings before the House Committee on Interstate and Foreign Commerce, 74th Cong., 1st Sess., 471—472, 474, 476, 489, 490. (Emphasis added.)
1
49 Stat. 838, 846, 16 U.S.C. § 817 (1958 ed.).
2
The Federal Power Act was originally enacted in 1920 as the Federal Water Power Act, 41 Stat. 1063. The original Act was amended by Title II of the Public Utility Act of 1935, 49 Stat. 838, 16 U.S.C. §§ 791—823 (1958 ed.), and made Part I of the Federal Power Act. Parts II and III, dealing with regulation of electric utility companies, were added. To distinguish the original Federal Water Power Act, which was kept largely intact, from Parts II and III, Part I will be referred to in this opinion under its original title.
3
A pumped storage facility may be likened to a large storage battery, taking electric energy from other sources, usually steam-electric plants, during some hours of the day, and supplying energy to an integrated system during other hours. The water in the upper pool may thus be regarded as the equivalent of stored electric energy. Pumped storage installations fall into two categories, those in which pumped storage facilities are added to a conventional hydro installation, and those which are exclusively pumped storage, generating power solely by circulating water between a lower and higher reservoir. Within these categories pumped storage installations vary widely in design and mode of operation. F.P.C., 1964 National Power Survey, Part I, 120—124. Existing combined pumped storage hydroelectric projects include Rocky River, Conn. (1929); Buchanan, Tex. (1950); Flatiron, Colo. (1954); Hiwassee, N.C. (1956); and Lewiston, N.Y. (1961). The pure pumped storage installations are of more recent vintage, with the following projects planned or recently constructed: Yards Creek, N.J.; Cabin Creek, Colo.; Muddy Run, Pa.; Ludington, Mich.; Cornwall, N.Y.; and the Taum Sauk project. See id., at 122—123.
4
At Taum Sauk the upper reservoir is a 32-acre pool constructed atop a mountain, at about 1,500 feet above sea level, and the lower reservoir, impounded by a 60-foot dam, covers about 370 acres and has a usable storage capacity of $4,350 acre-feet of water. The two are connected by a pressure tunnel and conduit, with a pumping and generating station on an open channel running to the lower pool.
5
During normal stream flows and normal operations of the project, there would be no increase or decrease of the natural stage or flow of waters below the dam. In the event of malfunction or abnormal flows, the project might affect the level of both the East Fork and Black River.
6
The trial examiner found that the Taum Sauk project would affect the navigable capacity of the Black River. Although the Commission directed most of its opinion to the issue of whether the project affected the interests of commerce because a substantial part of its power is transmitted in interstate commerce, it concurred in the examiner's finding that the project may, under certain conditions, affect the navigability of the Black River. The Court of Appeals reversed the latter holding on the ground that the finding was not supported by substantial evidence. The question presented in the petition for certiorari was whether the generation of energy for interstate transmission was a sufficient basis for requiring a license, although the Commission reserved in a footnote the right to argue the correctness of the alternative holding. We do not determine whether this issue is properly here or decide whether there is substantial evidence to support a finding of effect on navigability; our discussion proceeds on the assumption that the Court of Appeals was correct in determining that there was not.
7
Utah Power & Light Co. v. Pfost, 286 U.S. 165, 52 S.Ct. 548, 76 L.Ed. 1038, cited by the Court of Appeals, is not opposed. The Court there held that a State had power to impose a tax on a company generating electric energy for distribution in interstate commerce. This, of course, does not control the commerce powers of Congress. Cf. Consolidated Edison Co. of New York v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126; Polish National Alliance of United States, etc. v. National Labor Relations Board, 322 U.S. 643, 649, 64 S.Ct. 1196, 1199, 88 L.Ed. 1509: '(F)ederal regulation does not preclude state taxation and state taxation does not preclude federal regulation.'
8
Section 23(b) reads:
'It shall be unlawful for any person * * * for the purpose of developing electric power, to construct, operate, or maintain any dam, water conduit, reservoir, power house, or other works incidental thereto across, along, or in any of the navigable waters of the United States, or upon any part of the public lands or reservations of the United States (including the Territories), or utilize the surplus water or water power from any Government dam, except under and in accordance with * * * a license granted pursuant to this Act. Any person * * * intending to construct a dam or other project works across, along, over, or in any stream or part thereof, other than those defined herein as navigable waters, and over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States shall before such construction file declaration of such intention with the Commission, whereupon the Commission shall cause immediate investigation of such proposed construction to be made, and if upon investigation it shall find that the interests of interstate or foreign commerce would be affected by such proposed construction, such person * * * shall not construct, maintain, or operate such dam or other project works until it shall have applied for and shall have received a license under the provisions of this Act. If the Commission shall not so find, and if no public lands or reservations are affected, permission is hereby granted to construct such dam or other project works in such stream upon compliance with State laws.'
9
To be sure the requirement that the project be on a stream over which Congress has jurisdiction delimits the cases in which the Commission need inquire into the project's effect on commerce, leaving the theoretical possibility that some projects affecting commerce need not be licensed because they are located on waters beyond cognizance under the Commerce Clause. But it has not been shown that this possibility is anything more than theoretical. To the extent there are such projects, there is nothing inconsistent between a narrow exemption for projects located on intrastate nonnavigable waters which do not flow into any navigable streams and an intent to reach all projects affecting commerce generally when located on the more typical stream.
10
Respondent also underscores the statutory directive requiring determination of whether the 'proposed construction' of the dam or project works would affect commerce and urges that the use of this term indicates the provision refers to effect on navigation. Whether inquiry be limited to such effects or extend to matters affecting the interests of commerce generally, an intelligible determination perforce entails consideration of the nature of the project, its intended use and its mode of operation and not only that of the physical construction. Further, the statute provides that upon finding that the project will have an effect on commerce, the declarant 'shall not construct, maintain, or operate such dam or other project works' without a license.
11
H.R.Rep. No. 61, 66th Cong., 1st Sess.; 58 Cong.Rec. 1932, 1936—1940; 59 Cong. Rec. 241, 1039—1042, 1173—1174. See also 42 Cong.Rec. 6968; S.Doc. No. 325, 60th Cong., 1st Sess., 25.
The movement toward the enactment of the Act in 1920 may be said to have taken its keynote from President Roosevelt's veto of a bill which would have turned over to private interests important power sites on the Rainy River. He said:
'We are now at the beginning of great development in water power. Its use through electrical transmission is entering more and more largely into every element of the daily life of the people. Already the evils of monopoly are becoming manifest; already the experience of the past shows the necessity of caution in making unrestricted grants of this great power.
'It should also be the duty of some designated official to see to it that in approving the plans the maximum development of the navigation and power is assured, or at least that in making the plans these may not be so developed as ultimately to interfere with the better utilization of the water or complete development of the power.' 42 Cong.Rec. 4698.
The history of the movement and its objectives are well recounted in Kerwin. Federal Water-Power Legislation 105—293 (hereafter Kerwin); Pinchot, The Long Struggle for Effective Federal Water Power Legislation, 14 Geo.Wash.L.Rev. 9 (1945).
12
26 Stat. 453, 454; 30 Stat. 1121, 1151; 33 U.S.C. §§ 401, 403 (1958) ed.).
13
'The increasing need of power, resulting through our participation in the war and growing shortage in certain sections of our coal and oil supply, compelled attention to the urgency of immediate and comprehensive water-power legislation. * * * (T)he need for legislation for the development of hydroelectric power at the present time is clearly set forth by Secretary Houston in a recent report.' H.R.Rep. No. 61, 66th Cong., 1st Sess., 4.
'If 10 years ago, instead of enacting restrictive laws which have prohibited development of our waters powers, Congress had invited their development through fair and reasonable terms, the beginning of the World War would have found the United States with 20,000,000 developed hydroelectric power instead of 5,000,000. * * *
'The necessity for the development of our water power is of paramount importance to the people of the United States, and Congress should enact a law without further delay * * *.' 59 Cong.Rec. 241, 244 (remarks of Senator Jones in introducing the bill).
See also 59 Cong.Rec. 1222-1224, 1039, 1042, 1048; S.Rep. No. 180, 66th Cong., 1st Sess.
14
49 Stat. 842, 16 U.S.C. § 803(a) (1958 ed.).
15
These conditions require that the project shall be maintained in good repair and operated in the interests of navigation, amortization reserves shall be maintained after the twentieth year of operation out of any excess return on net investment, annual charges shall be paid to the United States, excessive profits, unregulated by state authority, shall be expropriated to the United States, § 10, 49 Stat. 842, 16 U.S.C. §§ 803(b), (c), (d), (e) (1958 ed.), and rates and services for energy, absent state regulation, shall be reasonable and adequate, § 19, 41 Stat. 1073, 16 U.S.C. § 812 (1958 ed.). Under § 14, 49 Stat. 844, 16 U.S.C. § 807 (1958 ed.), the United States may recapture any project after expiration of the license, upon payment of the net investment in the property.
16
§ 3(8), 49 Stat. 838, 16 U.S.C. § 796(8) (1958 ed.).
17
§ 4(e), 49 Stat. 840, 16 U.S.C. § 797(e) (1958 ed.).
18
§ 3(8), 49 Stat. 838, 16 U.S.C. § 796(8) (1958 ed.).
Earlier versions of the Act would have defined 'navigable waters' to include only such streams or parts thereof which in their ordinary natural condition are used for the transportation of persons and property in interstate commerce or which through improvements shall become usable in such commerce. S. 1419, 65th Cong., 1st Sess.; H.R. 3184, 66th Cong., 1st Sess. The conservationists noted that this definition excluded falls, shallows and rapids, thought to be rather valuable sites for hydroelectric projects. 57 Cong.Rec. 4638. A filibuster in the closing hours of the session in 1919 prevented enactment of S. 1419, Kerwin 253—254, and the definition of navigation in H.R. 3184 was amended by the Senate Commerce Committee to include interrupting falls and shallows and rapids as well as streams cited for improvement. S.Rep. No. 180, 66th Cong. 1st Sess.
19
See, e.g., 59 Cong.Rec. 1041—1042, 1430—1432, 1472, 6529 6531, 6536, 7723—7729.
These objections may be found in the debates on the earlier versions of water power legislation, notwithstanding that 'navigable waters' in these bills was more narrowly defined and permission to construct a project on a nonnavigable stream was granted. Earlier bills include S. 1419, 65th Cong.1st Sess.; H.R. 3184, 66th Cong., 1st Sess. See 56 Cong.Rec. 8917, 9038; 57 Cong.Rec. 4638; 58 Cong.Rec. 2032.
20
The following are representative:
'Stripped of its covering, the proposal relates not to commerce between the States or with foreign nations, but it authorizes a commission to issue licenses to corporations and to individuals to build dams and to erect power houses for the generation of electricity for industrial purposes. And in this purpose may be found the explanation of the strained effort to enlarge the definition of 'navigable waters' beyond its proper limits. The proponents of this legislation are not concerned with navigation and so with navigable waters in fact. There is a scheme of power development for the demands and the profits of industry under Federal control. They recognize the impracticability of such developments upon streams navigable in fact and in law, except under unusual and exceptional conditions. * * *
Limit this definition of 'navigable waters' as we may and the bill even then, will go to the very verge of constitutional inhibition. I know of no authority in our fundamental law for th licensing by Congress of corporations and individuals for the building of dams, the erection of power houses, and the generation of electricity for industrial and commercial purposes. There are those who profess to believe that this may be done upon navigable streams as an incident to the improvement of navigation. Whether this view be sound or not, it is clear in my mind that such powers can not be exercised by
the Federal Government within the limits of our States upon streams which are not navigable and over which Congress has no jurisdiction. * * *' 59 Cong.Rec. 6531 (remarks of Representative White).
'As a matter of law, aside from purposes of navigation, the use of the water in the different streams of the several States belongs to the people of those States and not to the Federal Government. The argument insisted upon amounts to this: That the Federal Government is to sell and to make a charge for water that does not belong to it, but which belongs to the people of the States.' 59 Cong.Rec. 1430 (remarks of Senator Nelson).
'Mr. KING. Obviously, then, under the Senator's contention, the Federal Government would have jurisdiction over the snow line, and, as the Senator from Colorado (Mr. Thomas) sotto voce says, it would have jurisdiction of the clouds which produce the snow which melts and produces the spring which produces the tributary flowing into the river which is navigable. So that the Federal Government may stretch out its powerful and omnipotent hand until it can grasp the snow in the mountains and say, 'We have jurisdiction over that.'
'Mr. NELSON. That is a forced construction.
'Mr. KING. I think that the Senator's position leads to that.
'Mr. NELSON. It does not lead to that, and that is not my position. The Senator a few moments ago referred to the Rio Grande case. The court intimated incidentally in that opinion that the control of Congress extended to the feeders of the stream, but when it comes to applying the principles of law to the facts in each case they must be measured by the facts. The court did not mean to decide that the feeders were navigable. What the court meant to say was that the Federal Government has sufficient jurisdiction over the feeders to see to it that the supply of water shall not be destroyed or so diminished in the feeders as to prevent the main stream from being navigable. * * *
'* * * Does the diversion of the water of a certain feeder of a certain stream for irrigation purposes diminish the quantity of the water to such an extent as to destroy the navigability
of the main stream? If the diversion of the water did not diminish the navigability of the main stream, the Government would have no control whatever. Furthermore, it would only have control to the extent of the supply of water needed to subserve the purposes of real navigation.
'We are not seeking to interfere with the present situation, and no matter what we put into this bill, if the Senator from Maine will excuse me a moment longer, we can not change the decisions of the Supreme Court as to their determination of the words 'navigable stream.' We could not undo by this legislation, if we should make the effort, what they have decided. We have made no such attempt.' 59 Cong.Rec. 7730.
See also 59 Cong.Rec. 1041—1042, 1472, 7723—7730. Cf. 57 Cong.Rec. 4636—4638, 56 Cong.Rec. 9038.
21
Especially an issue that was largely theoretical at the time. Prior to the use of the pumped storage technique, hydroelectric projects sufficiently large to serve interstate markets were on the interrupting falls, shallows, and rapids of the navigable mainstream or utilized enough water to affect the flow or level of navigable portions.
22
Indeed, Congress not only invoked its powers over commerce in § 23(b) but also drew upon its powers over public lands and reservations. Only if there is no effect on commerce and 'if no public lands or reservations are affected' is permission granted to construct without a license.
23
H.R. 3184, 66th Cong., 1st Sess. See also S. 1419, 65th Cong., 1st Sess.
24
S.Rep. No. 180, 66th Cong., 1st Sess., 19.
25
Ibid., H.R.Rep. No. 910, 66th Cong., 2d Sess. The House managers did state in a separate statement in regard to the Senate amendment:
'This amendment seeks to prescribe how a stream of doubtful navigability may be determined as within the provisions of the law, and in substance it provides that the commission shall ascertain whether the interests of commerce are affected; if not, then permission is granted to construct in accordance with the State laws.' Id., at 13.
But whatever the scope of § 23(b), the provision was meant to do more than afford a method for obtaining a determination of the navigability of the stream on which the project was to be located. It applies only if the stream is a nonnavigable stream over which Congress has jurisdiction and the Commission is to determine the effect of the project on commerce, not the nature of the stream.
26
See, e.g., 58 Cong.Rec. 1935; 59 Cong.Rec. 241—244, 1173 1174, 1472, 6529—6531, 7723—7729.
27
See Hearings before the House Committee on Interstate and Foreign Commerce on H.R. 5423, 74th Cong., 1st Sess., at 383—391, 471—490; S.Rep. No. 621, 74th Cong., 1st Sess., 46—47; H.R.Rep. No. 1318, 74th Cong., 1st Sess., 25—26.
28
The amendment was proposed by Senator Pittman and adopted by the Senate without discussion. 79 Cong.Rec. 9053. It was deleted by the House Committee, also without explanation. H.R.Rep. No. 1318, 74th Cong., 1st Sess., 42. The Senate agreed. 79 Cong.Rec. 14473.
29
Respondent notes that if the use of water resources is at the heart of the matter, then it cannot be explained why the Act differentiates between two precisely similar hydroelectric plants on a nonnavigable stream subject to federal jurisdiction solely because one transmits energy in interstate commerce and the other generates for local use. We fail to perceive the difficulty. The project located on a nonnavigable stream, without any effect on navigability and water commerce and without any interstate sales, may well have no effect on commerce among the States and thus be beyond the power of Congress under the Commerce Clause.
30
The Court of Appeals noted that the Commission's novel construction 'represents a decided departure from its administrative construction of (the) statute' and 'one not based upon generally
acknowledged limits of jurisdiction adhered to throughout the years.' 326 F.2d, at 552. Congress must be deemed to have accepted this concistently held administrative view.
It is true that the FPC has not previously required a license for hydroelectric projects generating for interstate markets, but having no effect on navigability, but the existence of such projects in any number may be doubted. The construction of pure pumped storage installations on small streams is a relatively recent development. Thus pure pumped storage projects were not of significance to the federal interest in hydroelectric plants in the early days of the Act.
Further, the FPC's view here is not novel. A Court of Appeals expressly dealt with and rejected this construction of the Act in 1939, United States v. Appalachian Electric Power Co., 107 F.2d 769, 79 (C.A.4th Cir.). There the Court of Appeals held, in a decision relied on by the court below, that the Commission's construction was untenable 'either on the basis of statutory construction or constitutional authority,' resting this conclusion in part on a very narrow view of Congress' authority under the Commerce Clause over hydroelectric projects, whether on navigable or nonnavigable waters. This Court, although finding the stream in question navigable, rejected this underpinning of the Court of Appeals' decision and made quite explicit the broad nature of the federal interest in hydroelectric projects. The Court also expressly put aside the issues posed by the intended interstate sales. 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243. Thus the issue herein presented can fairly be said to have been unsettled and unresolved since that decision, as evidened by an examiner's ruling in 1954 that a project required a license because it would generate energy for interstate transmission. The Commission followed the earlier Court of Appeals' decision and rejected this ruling in a cursory dictum, the project requiring a license on the more traditional ground of effect on navigability. California Oregon Power Co., 13 F.P.C. 1, 3.
The FPC itself has regarded the question as an open one, stating, in reaching the issue in this case, that 'an issue of such importance must not be allowed to go unresoved any longer since there can be little doubt that this country in the years ahead will become over-
whelmingly more dependent upon the maximum development of its water resources in all their uses.' 27 F.P.C. 801, 806—807.
We do not find in these circumstances a generally acknowledged jurisdictional limitation or a consistently held administrative interpretation. See American Trucking Ass'ns v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337.
1
Moreover, in 1935 Congress re-enacted the relevant statutory provisions. The long-standing administrative interpretation of the licensing provision both before and after its re-enactment is an important factor in construing the statute. See, e.g., Helvering v. Reynolds, 313 U.S. 428, 432, 61 S.Ct. 971, 973, 85 L.Ed. 1438; Commissioner v. Estate of Noel, 380 U.S. 678, 85 S.Ct. 1238; 1 Davis, Administrative Law § 5.07 (1958).
2
See Appendix A. See also 56 Cong.Rec. 8917, 9038; 57 Cong.Rec. 4638—4639; 59 Cong.Rec. 6529—6531, 7723, 7725, 7730.
3
See Appendix B.
4
Both the Senate and House Reports on the 1935 amendments to the Federal Water Power Act make clear that the licensing provision was to apply where navigable waters are affected. The Senate Report states: 'Under this subsection with the two amendments here made every person intending to construct a project which might conceivably affect any navigable waters would be under the duty of coming to the Commission.' S.Rep. No. 621, 74th Cong., 1st Sess., 47. The House Report expresses similar views. H.R.Rep. No. 1318, 74th Cong., 1st Sess., 25—26.
5
See n. 2, supra.
6
In light of the majority decision in this case, I do not feel it necessary to deal with the Court of Appeals determination that the Commission erred in finding that the hydroelectric project here involved affected navigable waters.
| 78
|
381 U.S. 54
85 S.Ct. 1308
14 L.Ed.2d 214
UNITED STATES, Petitioner,v.MIDLAND-ROSS CORPORATION.
No. 628.
Argued March 31, 1965.
Decided May 3, 1965.
Frank I. Goodman for petitioner.
Theodore R. Colborn, Cleveland, Ohio, for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question for decision is whether, under the Internal Revenue Code of 1939, certain gains realized by the taxpayer are taxable as capital gains or as ordinary income. The taxpayer bought noninterest-bearing promissory notes from the issuers at prices discounted below the face amounts. With one exception, each of the notes was held for more than six months, and, before maturity and in the year of purchase, was sold for less than its face amount but more than its issue price.1 It is conceded that the gain in each case was the economic equivalent of interest for the use of the money to the date of sale but the taxpayer reported the gains as capital gains. The Commissioner of Internal Revenue determined that the gains attributable to original issue discount were but interest in another form and therefore were taxable as ordinary income. Respondent paid the resulting deficiencies and in this suit for refund prevailed in the District Court for the Northern District of Ohio, 214 F.Supp. 631, and in the Court of Appeals for the Sixth Circuit, 335 F.2d 561. Because this treatment as capital gains conflicts with the result reached by other courts of appeals,2 we granted certiorari. 379 U.S. 944, 85 S.Ct. 441, 13 L.Ed.2d 542. We reverse.
2
The more favorable capital gains treatment applied only to gain on 'the sale or exchange of a capital asset.' § 117(a)(4). Although original issue discount becomes property when the obligation falls due or is liquidated prior to maturity and § 117(a)(1) defined a capital asset as 'property held by the taxpayer,'3 we have held that
3
'not everything which can be called property in the ordinary sense and which is outside the statutory exclusions qualifies as a capital asset. This Court has long held that the term 'capital asset' is to be construed narrowly in accordance with the purpose of Congress to afford capitalgains treatment only in situations typically involving the realization of appreciation in value accrued over a substantial period of time, and thus to ameliorate the hardship of taxation of the entire gain in one year.' Commissioner v. Gillette Motor Transport, Inc., 364 U.S. 130, 134, 80 S.Ct. 1497, 1500, 4 L.Ed.2d 1617.
4
See also Corn Products Co. v. Commissioner, 350 U.S. 46, 52, 76 S.Ct. 20, 24, 100 L.Ed. 29. In applying this principle, this Court has consistently construed 'capital asset' to exclude property representing income items or accretions to the value of a capital asset themselves properly attributable to income. Thus the Court has held that 'capital asset' does not include compensation awarded a taxpayer as representing the fair rental value of its facilities during the period of their operation under government control, Commissioner v. Gillette Motor Transport, Inc., supra; the amount of the proceeds of the sale of an orange grove attributable to the value of an unmatured annual crop, Watson v. Commissioner, 345 U.S. 544, 73 S.Ct. 848, 97 L.Ed. 1232; an unexpired lease, Hort v. Commissioner, 313 U.S. 28, 61 S.Ct. 757, 85 L.Ed. 1168; and oil payment rights, Commissioner v. P. G. Lake, Inc., 356 U.S. 260, 78 S.Ct. 691, 2 L.Ed.2d 743. Similarly, earned original issue discount cannot be regarded as 'typically involving the realization of appreciation in value accrued over a substantial period of time * * * (given capital gains treatment) to ameliorate the hardship of taxation of the entire gain in one year.'
5
Earned original issue discount serves the same function as stated interest, concededly ordinary income and not a capital asset; it is simply 'compensation for the use or forbearance of money.' Deputy v. du Pont, 308 U.S. 488, 498, 60 S.Ct. 363, 368, 84 L.Ed. 416; cf. Lubin v. Commissioner, 335 F.2d 209 (C.A.2d Cir.). Unlike the typical case of capital appreciation, the earning of discount to maturity is predictable and measurable, and is 'essentially a substitute for * * * payments which § 22(a) expressly characterizes as gross income (; thus) it must be regarded as ordinary income, and it is immaterial that for some purposes the contract creating the right to such payments may be treated as 'property' or 'capital'.' Hort v. Commissioner, supra, 313 U.S., at 31, 61 S.Ct., at 758. The $6 earned on a one-year note for $106 issued for $100 is precisely like the $6 earned on a one-year loan of $100 at 6% stated interest. The application of general principles would indicate, therefore, that earned original issue discount, like stated interest, should be taxed under § 22(a) as ordinary income.4
6
The taxpayer argues, however, that administrative practice and congressional treatment of original issue discount under the 1939 Code establish that such discount is to be accounted for as capital gain when realized. Section 1232(a) (2)(A) of the Internal Revenue Code of 19545 provides that 'upon sale or exchange of * * * evidences of indebtedness issued after December 31, 1954, held by the taxpayer more than 6 months, any gain realized * * * (up to the prorated amount of original issue discount) shall be considered as gain from the sale or exchange of property which is not a capital asset,' that is, it is to be taxed at ordinary income rates. From this the taxpayer would infer that Congress understood prior administrative and legislative history as extending capital gains treatment to realized original issue discount. If administrative practice and legislative history before 1954 did in fact ignore economic reality and treat stated interest and original issue discount differently for tax purposes, the taxpayer should prevail. See Hanover Bank v. Commissioner, 369 U.S. 672, 82 S.Ct. 1080, 8 L.Ed.2d 187; Deputy v. du Pont, supra; cf. Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110, 59 S.Ct. 423, 83 L.Ed. 536. But the taxpayer must persuade us that this was clearly the case, see Watson v. Commissioner, supra, 345 U.S., at 551, 73 S.Ct., at 852, and has not done so.
7
The taxpayer refers us to various statutory provisions treating original issue discount as ordinary income in specific situations, arguing that these establish a congressional understanding that in situations not covered by such provisions, original issue discount is entitled to capital gains treatment. Even if these provisions were merely limited applications of the principle of § 1232(a)(2), they may demonstrate, not that the general rule was to the contrary, but that the general rule was unclear, see Brandis, Effect of Discount or Premium on Bondholder's North Carolina Income Tax, 19 N.C.L.Rev. 1, 7 (1940), and that Congress wished to avoid any doubt as to its treatment of particular situations. Cf. S.Rep.No. 1622, 83d Cong., 2d Sess., p. 112 (1954).
8
First we are referred to §§ 42(b) and 42(c) of the 1939 Code.6 Section 42(b) applied, inter alia, to discounted noninterest-bearing obligations periodically redeemable for specified increasing amounts, and permitted cash-basis taxpayers an election to accrue the annual increase. If anything, the statutory language supports the Government's position, for it implies that an accrual-basis taxpayer has no election, but must accrue the increases; this seems to indicate a congressional understanding that such increases were ordinary income. Section 42(c) postpones recognition of discount on short-term government obligations until maturity or sale. That provision, however, has its own history. Earlier law, requiring the proration of original issue discount according to the time the obligation was held, was considered to 'impose on taxpayers the duty of making burdensome computations.' See S.Rep.No.673, Part 1, 77th Cong., 1st Sess., p. 30 (1941). The proration provisions had in turn succeeded a statute enacted, not to make an exception to a general rule of capital gains treatment for issue discount, but to insure that the then-existing exemption for discount as representing interest could be claimed by taxpayers other than the original holder. H.R.Conf.Rep.No.17, 71st Cong., 1st Sess., p. 2 (1929). Since the tax exemption for Treasury paper was eliminated in 1941, there was no longer any important reason to distinguish exempt original issue discount from nonexempt market discount, and § 42(c) was enacted expressly to simplify administration by eliminating the necessity for allocation between interest and capital gain or loss, and treating all discount as income, but taxable only on realization.7 If the inferences drawn by respondent were correct, these provisions would be rendered superfluous by the enactment of § 1232(a)(2), but they have been carried forward as §§ 454(a) and (b) of the 1954 Code.
9
It is also argued that §§ 201(e) and 207(d) of the 1939 Code8 manifested a congressional view opposed to ordinary income treatment. These sections required annual accrual of bond premium and discount by life and mutual casualty insurance companies. But again, somewhat like § 42(b), these provisions provided for accrual by cash-basis taxpayers. See Massachusetts Mutual Life Ins. Co. v. United States, 288 U.S. 269, 53 S.Ct. 337, 77 L.Ed. 739. Moreover, the Commissioner had interpreted these provisions as requiring him to treat market discounts or premiums, as well as interest agreed upon by the borrower in the guise of original issue discount, as ordinary income items.9
10
Thus, the taxpayer has not demonstrated that, in specifying ordinary income treatment for original issue discount in particular situations, Congress evinced its understanding that such discount would otherwise be entitled to capital gains treatment. Therefore we turn to the question whether Treasury practice and decisional law preclude ordinary income treatment.
11
The taxpayer premises this part of his argument primarily upon the case of Caulkins v. Commissioner, 1 T.C. 656, acq., 1944 Cum.Bull. 5, aff'd, 144 F.2d 482 (C.A.6th Cir.), acq. withdrawn, 1955—1 Cum.Bull. 7.10 The taxpayer there purchased an 'Accumulative Installment Certificate' providing for 10 annual payments of $1,500 in return for $20,000 at the end of 10 years. The certificate provided for gradually increasing cash surrender and loan values. In 1939 the taxpayer received $20,000 as agreed and, relying on the long-term capital gains provisions of the Revenue Act of 1938, c. 289, 52 Stat. 447, reported only half the profit as taxable income. Acting primarily on the theory that the certificate was not in registered form as required by § 117(f), the Commissioner sought to treat the increment as interest or as income arising out of a transaction entered into for profit. The Tax Court upheld the taxpayer, finding that the certificate was in registered form within the meaning of § 117(f) of the Revenue Act of 1938, a provision identical to § 117(f) of the 1939 Code,11 but its discussion of the capital gains question is at best opaque.12 The Court of Appeals acknowledged that 'the transaction presents no true aspect of capital gain' and that 'Congress might well have made the differentiation urged by the Commissioner, since it is difficult to perceive any practical reason for taxing increment of the type involved here differently from ordinary income. * * * (as) consideration paid for the use of the amounts paid in. * * *' 144 F.2d, at 484. Nevertheless it construed the words 'amounts received by the holder upon * * * retirement' in § 117(f) as unsusceptible of partition, and therefore as including the increment attributable to interest, which, with the principal amount, was thus taxable only as capital gain.
12
Caulkins did not unambiguously establish that original issue discount was itself a 'capital asset' entitled to capital gains treatment. It held only that under § 117(f) Congress had not provided that the 'amount' received on retirement might be broken down into its component parts. This was inconsistent with the view expressed in Williams v. McGowan, 152 F.2d 570, 162 A.L.R. 1036 (C.A.2d Cir.), and approved by this Court in Watson v. Commissioner, supra, 345 U.S., at 552, 73 S.Ct., at 853, that 'Congress plainly did mean to comminute the elements of a business; plainly it did not regard the whole as 'capital assets." 152 F.2d, at 572. The Tax Court has consistently regarded Caulkins as having erroneously read § 117(f) to preclude differentiation of the sources of proceeds on redemption. Paine v. Commissioner, 23 T.C. 391, 401, reversed on other grounds, 236 F.2d 398 (C.A.8th Cir.); Stanton v. Commissioner, 34 T.C. 1; see 3B Mertens, The Law of Federal Income Taxation 184—186, 378—381 (Zimet rev.). The Commissioner, in addition to withdrawing his acquiescence in Caulkins, has also rejected the interpretation of 'amount' under § 117(f) as not subject to apportionment under general principles. Rev.Rul. 119, 1953—2 Cum.Bull. 95; Rev.Rul. 55—136, 1955—1 Cum.Bull. 213; Rev.Rul. 56—299, 1956—1 Cum.Bull. 603. To the extent the Tax Court's decision in Caulkins rested, as its opinion indicates, on a reading of § 117(f) to require more favorable treatment on redemption than on sale, it is clearly at odds with the legislative purpose, which was merely to treat alike redemptions and sales or exchanges of securities in registered form or with coupons attached, and not to extend the class of capital assets. Rev.Rul. 56—299, supra. Such an interpretation, which would not benefit the taxpayer in the sale transactions here involved, may underlie the Tax Court's decision but it has no justification in logic or in the legislative history, and even the taxpayer would reject such a meaning, however well supported by the Caulkins acquiescense. Finally, notwithstanding the acquiescence, what little other administrative practice we are referred to seems contrary to Caulkins. See I.T. 1684, II—1 Cum.Bull. 60 (1923).
13
The concept of discount or premium as altering the effective rate of interest is not to be rejected as an 'esoteric concept derived from subtle and theoretic analysis.' Old Colony R. Co. v. Commissioner, 284 U.S. 552, 561, 52 S.Ct. 211, 214, 76 L.Ed. 484. For, despite some expressions indicating a contrary view,13 this Court has often recognized the economic function of discount as interest. In Old Mission Portland Cement Co. v. Helvering, 293 U.S. 289, 290, 55 S.Ct. 158, 159, 79 L.Ed. 367, for example, the Court regarded it as 'no longer open to question that amortized bond discount may be deducted in the separate return of a single taxpayer.'14 The radical changes since Caulkins in the concept of treatment of accumulated interest under the 1939 Code are consistent with this. For example, accrued bond interest on stated interest bonds sold between interest dates has long been taxable to the seller of the bonds. See I.T. 3175, 1938—1 Cum.Bull. 200. But on 'flat' sales of defaulted notes at prices in excess of face amount, with no attribution of interest arrearages in the sale price, the requirement of allocation to treat a portion of the proceeds as ordinary income dates only from 1954. Fisher v. Commissioner, 209 F.2d 513 (C.A.6th Cir.); see Jaglom v. Commissioner, 303 F.2d 847, (C.A.2d Cir.). The propriety of such allocation in the present case is even more evident; unlike defaulted bond interest, there is no suggestion that full payment of the original issue discount will not be made at maturity.
14
For these reasons we hold that earned original issue discount is not entitled to capital gains treatment under the 1939 Code.
15
Reversed.
1
The original plaintiff, Industrial Rayon Corporation, was merged into respondent Midland-Ross Corporation in 1961. During 1952, 1953, and 1954, Industrial's idle funds were used to purchase 13 noninterest-bearing notes, varying in face amount from $500,000 to $2,000,000, from General Motors Acceptance Corporation, Commercial Investment Trust Company and Commercial Credit Company. The original issue discount in most instances was calculated to yield the equivalent of 2% to 2 1/2% on an annual basis if the note were held to maturity, and the gains on sale approximated the discount earned to date. It is not contended that any part of the gain was attributable to market fluctuations as opposed to the passage of time.
2
Real Estate Investment Trust of America v. Commissioner, 334 F.2d 986 (C.A.1st 1st Cir.), petition for writ of certiorari pending, No. 620; Dixon v. United States, 333 F.2d 1016 (C.A.2d Cir.), affirmed, 381 U.S. 68, 85 S.Ct. 1301; Rosen v. United States, 288 F.2d 658 (C.A.3d Cir.); United States v. Harrison, 304 F.2d 835 (C.A.5th Cir.); Commissioner of Internal Revenue v. Morgan, 272 F.2d 936 (C.A.9th Cir.). See also Pattiz v. United Sttates, 311 F.2d 947, 160 Ct.8cl. 121; Schwartz v. Commissioner, 40 T.C. 191; Leavin v. Commissioner, 37 T.C. 766; Gibbons v. Commissioner, 37 T.C. 569.
3
'Sec. 117. Capital Gains and Losses.
'(a) Definitions.—As used in this chapter—
'(1) Capital assets.—The term 'capital assets' means property held by the taxpayer * * *.'
4
Our disposition makes it unnecessary to decide certain questions raised at argument, as to which we intimate no view:
(1) Since each note was sold in the year of purchase, we do not reach the question whether an accrual-basis taxpayer is required to report discount earned before the final disposition of an obligation;
(2) Since no argument is made that the gain on the sale of each note varied significantly from the portion of the original issue discount earned during the holding period, we do not reach the question of the tax treatment under the 1939 Code of 'market discount' arising from post-issue purchases at prices varying from issue price plus a ratable portion of the original issue discount, or of the tax treatment of gains properly attributable to fluctuations in the interest rate and market price of obligations as distinguished from the anticipated increase resulting from mere passage of time.
5
'Sale or exchange.—
'(A) (As amended by § 50(a), Technical Amendments Act of 1958, Pub.L. 85—866, 72 Stat. 1606) General rule.—Except as provided in subparagraph (B), upon sale or exchange of bonds or other evidences of indebtedness issued after December 31, 1954, held by the taxpayer more than 6 months, any gain realized which does not exceed—
'(ii) * * * an amount which bears the same ratio to the original issue discount (as defined in subsection (b)) as the number of complete months that the bond or other evidence of indebtedness was held by the taxpayer bears to the number of complete months from the date of original issue to the date of maturity, 'shall be considered as gain from the sale or exchange of property which is not a capital asset. Gain in excess of such amount shall be considered gain from the sale or exchange of a capital asset held more than 6 months.'
Section 1232(b) defines 'original issue discount' as 'the difference between the issue price and the stated redemption price at maturity * * *.'
We intimate no view on the construction of this statute. In particular, we imply no view upon the Commissioner's implicit contention that accrual-basis taxpayers are required to report discount as earned prior to final disposition of obligations acquired after December 31, 1954. Cf. Lubin v. Commissioner, supra.
6
'Sec. 42. Period in Which Items of Gross Income Included.
'(b) Noninterest-bearing Obligations Issued at Discount.—If, in the case of a taxpayer owning any noninterest-bearing obligation issued at a discount and redeemable for fixed amounts increasing at stated intervals or owning an obligation described in paragraph (2) of subsection (d), the increase in the redemption price of such obligation occurring in the taxable year does not (under the method of accounting used in computing his net income) constitute income to him in such year, such taxpayer may, at his election made in his return for any taxable year beginning after December 31, 1940, treat such increase as income received in such taxable year. * * * In the case of any such obligations owned by the taxpayer at the beginning of the first taxable year to which his election applies, the increase in the redemption price of such obligations occurring between the date of acquisition * * * and the first day of such taxable year shall also be treated as income received in such taxable year.
'(c) Short-Term Obligations Issued on Discount Basis.—In the case of any obligation of the United States or any of its possessions, or of a State or Territory, or any political subdivision thereof, or of the District of Columbia, issued on or after March 1, 1941, on a discount basis and payable without interest at a fixed maturity date not exceeding one year from the date of issue, the amount of discount at which such obligation is originally sold shall not be considered to accrue until the date on which such obligation is paid at maturity, sold, or otherwise disposed of.'
7
Since the statute applied only to paper with maturity of a year or less, the simplification resulting from recognizing income only on realization outweighed the possible shifting of income between tax years by accrual-basis taxpayers. At the same time, short-term government paper was excluded from the definition of 'capital asset' in § 117(a)(1)(D) of the 1939 Code, avoiding the necessity of separating out the amount of proceeds attributable to market fluctuations rather than earned discount. This exclusion is carried forward as § 1221(5) of the 1954 Code.
8
'Sec. 201. Life Insurance Companies.
'(e) Amortization of Premium and Accrual of Discount.—The gross income, the deduction provided in section 201(c)(7)(A) and the credit allowed against net income in section 26(a) shall each be decreased by the appropriate amortization of premium and increased by the appropriate accrual of discount attributable to the taxable year on bonds, notes, debentures or other evidences of indebtedness held by a life insurance company. Such amortization and accrual shall be determined (1) in accordance with the method regularly employed by such company, if such method is reasonable, and (2) in all other cases in accordance with regulations prescribed by the Commissioner with the approval of the Secretary.
'Sec. 207. Mutual Insurance Companies other than Life or Marine.
'(d) Amortization of Premium and Accrual of Discount.—The gross amount of income during the taxable year from interest, the deduction provided in subsection (b)(4)(A), and the credit allowed against net income in section 26(a) shall each be decreased by the appropriate amortization of premium and increased by the appropriate accrual of discount attributable to the taxable year on bonds, notes, debentures or other evidences of indebtedness held by a mutual insurance company subject to the tax imposed by this section. Such amortization and accrual shall be determined (1) in accordance with the method regularly employed by such company, if such method is reasonable, and (2) in all other cases, in accordance with regulations prescribed by the Commissioner with the approval of the Secretary.'
9
This provision was eliminated and the life insurance provision amended by the Revenue Act of 1964, § 228, 78 Stat. 19, 98—99, amending §§ 818(b), 822(d) (2) of the 1954 Code. See S.Rep. No. 830, 88th Cong., 2d Sess., pp. 122—124 U.S. Code Congressional and Administrative News, 1964, pp. 122-124, for a detailed explanation.
10
We consider the decisions and acquiescence only as evidence of the earlier understanding of the tax law. With respect to the claim of a particular taxpayer that he relied to his detriment on the acquiescence, see Dixon v. United States, 381 U.S. 68, 85 S.Ct. 1301.
11
'Retirement of Bonds, Etc.—For the purposes of this chapter, amounts received by the holder upon the retirement of bonds, debentures, notes, or certificates or other evidences of indebtedness issued by any corporation (including those issued by a government or political subdivision thereof), with interest coupons or in registered form, shall be considered as amounts received in exchange therefor.'
12
The entire discussion of the capital gains question is as follows:
'Prior to the enactment of the Revenue Act of 1934, the payment of a bond by the corporation issuing it was held to be but the fulfillment of a contractual obligation to repay money in accordance with the fixed terms of the obligation and not a sale or exchange of a capital asset. Fairbanks v. United States, 306 U.S. 436 (59 S.Ct. 607, 83 L.Ed. 855); Felin v. Kyle (3 Cir.), 102 Fed.(2d) 349; John H. Watson, Jr., 27 B.T.A. 463; Arthur E. Braun, Trustee, 29 B.T.A. 1161; Frank J. Cobbs, 39 B.T.A. 642; petition to review dismissed, 111 Fed.(2d) 644. Section 117(f), supra, appeared for the first time in the Revenue Act of 1934. In McClain v. Commissioner, 311 U.S. 527 (61 S.Ct. 373, 85 L.Ed. 319), the Supreme Court said: 'It is plain that Congress intended by the new sub-section (f) to take out of the bad debt provision certain transactions and to place them in the category of capital gains and losses.' This tribunal has held that by a parity of reasoning Congress also intended to take out of the ordinary income provisions of the revenue act gains realized by a taxpayer in connection with the retirement of the specified obligations. William H. Noll, 43 B.T.A. 496.' 1 T.C., at 660—661.
It thus seems unclear whether the acquiescence related to the essentially uncontested capital gains question, and whether the decision was meant to apply beyond the narrow confines of § 117(f). See Dixon v. United States, 381 U.S., at 76—79, 85 S.Ct. at 1306—1308.
13
See, e.g., New York Life Ins. Co. v. Edwards, 271 U.S. 109, 116, 46 S.Ct. 436, 437, 70 L.Ed. 859; Old Colony R. Co. v. Commissioner, supra. Though these bond premium cases are said to be inconsistent with the view taken here, they are equally inconsistent with the treatment of discount to the borrower.
14
See also Helvering v. Union Pacific R. Co., 293 U.S. 282, 285, 288, 55 S.Ct. 165, 166, 168, 79 L.Ed. 363; Western Maryland R. Co. v. Commissioner, 33 F.2d 695, 696 (C.A.4th Cir.); Longview Hilton Hotel Co. v. Commissioner, 9 T.C. 180, 182.
| 1112
|
381 U.S. 124
85 S.Ct. 1364
14 L.Ed.2d 260
Stanley M. CORBETT, Guardian of the Property of Constantine Neonakis, a Minor, appellant,v.Viola STERGIOS, etc.
No. 179.—.
Supreme Court of the United States
October Term, 1964.
May 3, 1965
Robert R. Eidsmoe, Sioux City, Iowa, for appellant.
Phillip S. Dandos, Sioux City, Iowa, for appellee.
Opinion on remand, 137 N.W.2d 266.
PER CURIAM.
1
In light of our construction of the Treaty of Friendship, Commerce and Navigation between the United States and the Kingdom of Greece, signed August 3, 1951, effective October 13, 1954,1 a construction confirmed by representations of the signatories whose views were not available to the Supreme Court of Iowa, the judgment is reversed. Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 633.
1
5 U.S. Treaties and Other International Agreements 1829; T.I.A.S. No. 3057.
| 910
|
381 U.S. 68
85 S.Ct. 1301
14 L.Ed.2d 223
W. Palmer DIXON et al., Petitioners,v.UNIED STATES.
No. 486.
Argued March 30 and 31, 1965.
Decided May 3, 1965.
Bernard E. Brandes, New York City, for petitioners.
Frank I. Goodman, for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case involves the issue decided today in United States v. Midland-Ross Corp., 381 U.S. 54, 85 S.Ct. 1308. Petitioners are members of a partnership which, during the tax year 1952, bought 33 short-term noninterest-bearing notes from issuers at discounts between 2 3/8% and 3 3/4% of face value. The notes had maturities ranging from 190 to 272 days. Their total face value was $43,050,000, and the total issue price was $42,222,357. The partnership sold 20 of the 33 notes before the end of the tax year but after having held them for more than six months, realizing a gain of $494,528. The remaining 13 notes were disposed of in the next tax year. In its 1952 return the partnership reported the $494,528 gain as a long-term capital gain, and, although on the accrual basis, did not accrue any income on account of the 13 unsold notes. Petitioners' individual income tax returns reflected the same treatment for their respective distributive shares of the partnership income derived from the sale of the notes.
2
The Commissioner of Internal Revenue determined that the gain realized was taxable as ordinary income, and also that a portion of the original issue discount on the 13 unsold notes was earned and reportable as ordinary income for 1952.1 Petitioners paid the resulting deficiencies, and in this suit for refund the United States prevailed in the District Court for the Southern District of New York, 224 F.Supp. 358, and in the Court of Appeals for the Second Circuit, 333 F.2d 1016. We brought the case here on certiorari, 379 U.S. 943, 85 S.Ct. 437, 13 L.Ed.2d 542, to resolve a conflict with United States v. Midland-Ross Corp., supra. We affirm.
3
Our holding today in Midland-Ross that original issue discount is not entitled to capital gains treatment under the 1939 Internal Revenue Code requires that we affirm the result below unless an affirmance is precluded by an argument made here and not in Midland-Ross. The petitioners contend that in purchasing the notes they relied upon the Commissioner's published acquiescence in the Tax Court's decision in Caulkins v. Commissioner of Internal Revenue, 1 T.C. 656, aff'd 144 F.2d 482, not withdrawn until the transaction was closed,2 which acquiescence would require treating the gain realized as gain on the sale or exchange of a capital asset. Although petitioners concede that under § 7805(b) of the Internal Revenue Code of 1954 the Commissioner has discretion to apply the withdrawal of the acquiescence retroactively, cf. Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746, they contend that he abused his discretion in this case.
Section 7805(b) provides:
4
'Retroactivity of Regulations or Rulings.—The Secretary (of the Treasury) or his delegate may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect.'3
5
In Caulkins the Tax Court allowed capital gains treatment of the full amount received by the taxpayer upon the retirement of an 'Accumulative Installment Certificate,' a debt security under which the lender made 10 annual remittances to the borrower in the amount of $1,500 each in return for a payment of $20,000 in the tenth year. See United States v. Midland-Ross Corp., supra, 381 U.S., at 63, 85 S.Ct. at 1313. The result gave capital gains treatment to an amount corresponding to but not in the form of original issue discount. The basis for this result was an interpretation of § 117(f) of the Revenue Act of 1938, c. 289, 52 Stat. 447, which was reenacted as § 117(f) of the 1939 Code, and which provided that 'amounts received by the holder upon the retirement of bonds, debentures, notes, or certificates or other evidences of indebtedness * * * with interest coupons or in registered form, shall be considered as amounts received in exchange therefor.' The Commissioner's 1955 withdrawal of his acquiescence in the Tax Court's decision in Caulkins was made retroactive as a general matter, but an exception was made for 'amounts received upon redemption of Accumulative Installment Certificates issued by Investors Syndicate which were purchased during the period beginning December 25, 1944, the date acquiescence in the Caulkins case was announced and March 14, 1955, the date this Revenue Ruling is published * * *.'4 The exception thus covered only the debt securities of the specific type involved in Caulkins, and issued by the particular issuer there involved.
6
In Automobile Club of Michigan v. Commissioner of Internal Revenue, supra, 353 U.S. at 183—184, 77 S.Ct. at 709 we held that the Commissioner is empowered retroactively to correct mistakes of law in the application of the tax laws to particular transactions.5 He may do so even where a taxpayer may have relied to his detriment on the Commissioner's mistake. See Manhattan General Equipment Co. v. Commissioner of Internal Revenue, 297 U.S. 129, 56 S.Ct. 397, 80 L.Ed. 528. This principle is no more than a reflection of the fact that Congress, not the Commissioner, prescribes the tax laws, The Commissioner's rulings have only such force as Congress chooses to give them, and Congress has not given them the force of law. Consequently it would appear that the Commissioner's acquiescence in an erroneous decision, published as a ruling, cannot in and of itself bar the United States from collecting a tax otherwise lawfully due.
7
But petitioners point to prefatory statements in the Internal Revenue Bulletins for 1952 and other years stating that Tax Court decisions acquiesced in 'should be relied upon by officers and employees of the Bureau of Internal Revenue as precedents in the disposition of other cases.' See, e.g., 1952—1 Cum.Bull. IV. These are merely guidelines for Bureau personnel, however, and hardly help the petitioners here. The title pages of the same Revenue Bulletins give taxpayers explicit warning that rulings
8
'* * * are for the information of taxpayers and their counsel as showing the trend of official opinion in * * * the Bureau of Internal Revenue; the rulings other than Treasury Decisions have none of the force of effect of Treasury Decisions and do not commit the Department to any interpretation of the law which has not been formally approved and promulgated by the Secretary of the Treasury.'6 (Emphasis added.) This admonition, together with the language of § 7805(b)'s predecessor, § 3791(b) of the 1939 Code, gave ample notice that the Commissioner's acquiescence in Caulkins was not immune from subsequent retroactive correction to eliminate a mistake of law.
9
Indeed, long before the tax year here in question this Court had made it clear that 'The power of an administrative officer or board to administer a federal statute and to prescribe rules and regulations to that end is not the power to make law * * * but the power to adopt regulations to carry into effect the will of Congress as expressed by the statute. A regulation which does not do this, but operates to create a rule out of harmony with the statute, is a mere nullity.' Manhattan General Equipment Co. v. Commissioner of Internal Revenue, supra, 297 U.S. at 134,7 56 S.Ct. at 400. There we held that the Commissioner could make retroactive a new regulation increasing tax liability beyond that provided for by the prior regulation where the superseding regulation corrected an erroneous interpretation of the statute.
10
'The statute defines the rights of the taxpayer and fixes a standard by which such rights are to be measured. The regulation constitutes only a step in the administrative process. It does not, and could not, alter the statute. It is no more retroactive in its operation than is a judicial determination construing and applying a statute to a case in hand.' Id., at 135, 56 S.Ct. at 400.
11
This reasoning applies with even greater force to the Commissioner's rulings and acquiescences.8 Therefore the acquiescence in Caulkins, even assuming for the moment that it embodied the Commissioner's acceptance of the treatment petitioners urge upon us here, does not preclude the Commissioner from collecting the tax lawfully due under the statute.
12
We cannot agree with petitioners that Automobile Club of Michigan v. Commissioner of Internal Revenue, supra, supports a finding that the Commissioner abused his discretion in giving retroactive effect to the withdrawal of the acquiescence. In that case the Commissioner had issued general pronouncements according exempt status to all automobile clubs similarly situated, following letter rulings to that effect in favor of the taxpayer. The Commissioner then corrected his erroneous view and, in 1945, specifically revoked the taxpayer's exemption for 1943 and subsequent years. We rejected the taxpayer's claim that the Commissioner had abused the discretion given him by § 7805(b)'s predecessor. The Commissioner's action had been forecast in a General Counsel Memorandum in 1943, and the corrected ruling had been applied to all automobile clubs for tax years back to 1943. 353 U.S., at 185—186, 77 S.Ct. at 710—711.
13
Petitioners make two arguments based on Automobile Club of Michigan. First, they contend that the Commissioner's decision to apply his change of position retroactively to them is an abuse of discretion because, unlike the taxpayer in Automobile Club, they had no notice in the relevant tax year that the Commissioner was about to correct his mistake of law, and thus had purchased the discounted notes in express reliance upon the Commissioner's published acquiescence in Caulkins. Second, they argue that the Commissioner abused his discretion because the retroactive withdrawal of his acquiescence in Caulkins excepted certificates of the type involved in Caulkins if issued by the issuer there involved and purchased while the acquiescence was in effect; this is said to be an unreasonable and arbitrary classification since, petitioners assert, there is no significant difference between the excepted certificates and the notes that they had purchased.
14
Although we mentioned certain facts in support of our conclusion in Automobile Club that there had not been an abuse of discretion in that case, it does not follow that the absence of one or more of these facts in another case wherein a ruling or regulation is applied retroactively establishes an abuse of discretion. Automobile Club merely examined all the circumstances of the particular case to determine whether the Commissioner had there abused his discretion. 353 U.S., at 185, 77 S.Ct. at 711. In the present case it cannot be said that the Commissioner abused his discretion in either of the respects urged by petitioners. The absence of notice does not prove an abuse, since, for the reasons we have stated, the petitioners were not justified in relying on the acquiescence as precluding correction of the underlying mistake of law and the retroactive application of the correct law to their case. Since no reliance was warranted, no notice was required.
15
Nor is there merit in the argument that the Commissioner abused his discretion in distinguishing Investors Syndicate Accumulative Installment Certificates from other debt securities, for we do not think the Commissioner's acquiescence in Caulkins was to be interpreted as his acceptance of the proposition that earned original issue discount was entitled to capital gains treatment.9 That interpretation might be properly put upon his acquiescence only if, first, the Tax Court in Caulkins squarely decided that any discount element in the amount realized by the taxpayer on the retirement of the certificate was not to be taxed as ordinary income but as capital gain, and second, the decision of the Tax Court should be read as holding that the tax treatment of gain attributable to discount is the same on sales and retirements. But Caulkins embodies neither of these holdings. Therefore, when the Commissioner revoked his acquiescence in 1955 he was not repudiating his earlier acceptance of a decision that prescribed capital gains treatment for the earned original issue discount here involved. Consequently, his decision to accept Accumulative Installment Certificates from the retroactive application of his nonacquiescence in Caulkins could not constitute an abuse of discretion of which the petitioners may complain.
16
As to item first: that he Tax Court in Caulkins did not squarely decide that the discount element in the amount realized by the taxpayer on the retirement of a debt security is to be taxed as a capital gain is apparent from its opinion. The Tax Court seemed to regard the only significant issue before it as whether the taxpayer's certificate of indebtedness was a 'registered' certificate within the meaning of § 117(f). There was no explicit consideration of whether any discount element in the amount realized by the taxpayer on the certificate was to be taxed as ordinary income or as capital gain. It is at best highly questionable, therefore, that by acquiescing in this decision the Commissioner conceded that § 117(f) extended capital gains treatment to the discount element in the certificate of indebtedness.10
17
As to item second: the petitioners were not warranted in reading Caulkins as holding that the gain realized on a sale that is attributable to original issue discount is to be given the same tax treatment as gain so attributable realized on a retirement. The opinion deals only with, and rests squarely upon, § 117(f), which is concerned with retirements. It is true that, in the case of securities in registered form or with coupons attached, that section was added by the Revenue Act of 1934, 48 Stat. 680, 714 715, to eliminate a difference in treatment between sales and retirements. See, e.g., Fairbanks v. United States, 306 U.S. 436, 59 S.Ct. 607, 83 L.Ed. 855; Watson v. Commissioner, 27 B.T.A. 463. But the opinion in Caulkins appears erroneously to carry forward a distinction and to give more favorable treatment to retirements. See United States v. Midland-Ross Corp., supra, 381 U.S., at 63 66, 85 S.Ct., at 1307—1315. Thus petitioners should not have read Caulkins as they did. Indeed the Tax Court has since distinguished Caulkins on the ground that it rested on the § 117(f) language of retirement and consequently was inapplicable to a sale. See Paine v. Commissioner, 23 T.C. 391, 401, rev'd on other grounds, 236 F.2d 398 (C.A.8th Cir.); United States v. Midland-Ross Corp., supra, 381 U.S., at 65, 85 S.Ct., at 1314.
18
Furthermore, even on the assumption that Caulkins may be read as petitioners contend, petitioners had the burden of demonstrating that Accumulative Installment Certificates could not rationally be distinguished from other discounted securities. Cf. American State Bank v. United States, 279 F.2d 585, 589—590 (C.A.7th Cir.); Schwartz v. Commissioner, 40 T.C. 191, 193. But the record is devoid of any evidence of effort by petitioners to discharge this burden by showing the absence of any significant difference between the holders of Accumulative Installment Certificates and themselves. Indeed, the Commissioner might well have believed that however mistaken the view that his acquiescence in Caulkins was tantamount to an acceptance of capital gains treatment for original issue discount, the assumption that such treatment would be given the discount element of their debt securities was more understandable in the case of holders of Accumulative Installment Certificates—the same obligations as were involved in Caulkins—than in the case of other taxpayers. So thinking, the Commissioner might further have concluded that equitable considerations pointed to making an exception to the retroactive application of the nonacquiescence for the holders of these Certificates. It is not for us to pass upon the wisdom of any such distinction. It suffices that on this record we cannot say that the distinction was so devoid of rational basis that we must now overturn the Commissioner's judgment.
19
Insofar as petitioners' arguments question the policy of empowering the Commissioner to correct mistakes of law retroactively when a taxpayer acts to his detriment in reliance upon the Commissioner's acquiescence in an erroneous Tax Court decision,11 their arguments are more appropriately addressed to Congress. Congress has seen fit to allow the Commissioner to correct mistakes of law, and in § 7805(b) has given him a large measure of discretion in determining when to apply his corrections retroactively. In the circumstances of this case we cannot say that this discretion was abused.
20
Affirmed.
1
The petitioners concede the correctness of this treatment of the earned discount on the 13 unsold notes if original issue discount is reportable as ordinary income. Again, as in Midland-Ross, we do not reach or intimate any view upon the question whether an accrual-basis taxpayer is required to report discount earned before the final disposition of an obligation. See United States v. Midland-Ross, 381 U.S. 54, at 58, 85 S.Ct. 1308, at 1310, note 4.
2
The Commissioner initially published a notification of nonacquiescence. See Rev.Rul. 11581, 1943 Cum.Bull. 1, 28. He published his acquiescence after the Court of Appeals affirmed the Tax Court. See Rev.Rul. 11907, 1944 Cum.Bull. 1, 5. The withdrawal of his acquiescence and the reinstatement of his initial nonacquiescence came in 1955, in 1955—1 Cum.Bull. 7, and Rev.Rul. 55—136, 1955—1 Cum.Bull. 213.
3
Section 3791(b) of the 1939 Code, 53 Stat. 467, was similarly worded except that the 1954 Act substituted 'The Secretary or his delegate' for 'The Secretary, or the Commissioner with the approval of the Secretary * * *.'
Whether the discount element of the gain from the notes here involved is a capital or an income item is governed by the relevant provisions of the 1939 Code, but the statute governing the retroactive application of the withdrawal of the acquiescence in 1955 is § 7805(b) of the 1954 Code, and not § 3791(b) of the 1939 Code. This makes no practical difference since the two provisions are identical apart from the variance mentioned above.
4
The withdrawal was published March 14, 1955. However, the exception was later limited to certificates acquired before December 31, 1954, Rev.Rul. 56—299, 1956—1 Cum.Bull. 603, apparently because § 1232 of the 1954 Code applies to obligations issued after that date.
5
See also Helvering v. Reynolds, 313 U.S. 428, 61 S.Ct. 971, 85 L.Ed. 1438; Manhattan General Equipment Co. v. Commissioner of Internal Revenue, 297 U.S. 129, 134—135, 56 S.Ct. 397, 399—400, 80 L.Ed. 528.
6
Compare the current Internal Revenue Bulletins, wherein, with specific regard to acquiescences, it is stated:
'Actions of acquiescences in adverse decisions shall be relied on by Revenue officers and others concerned as conclusions of the Service only to the application of the law to the facts in the particular case. Caution should be exercised in extending the application of the decision to a similar case unless the facts and circumstances are substantially the same * * *.' E.g., 1964—1 Cum.Bull. 3. And the introduction to Revenue Rulings now expressly warns that 'Except where otherwise indicated, published rulings and procedures apply retroactively.' Id., at 1. See also Rev.Proc. 62—28, 1962—2 Cum.Bull. 496, which states at 504:
'A ruling * * * may be revoked or modified at any time in the wise administration of the taxing statutes. * * * If a ruling is revoked or modified, the revocation or modification applies to all open years under the statutes, unless the Commissioner exercises the discretionary powers given to him under section 7805(b) of the Code to limit the retroactive effect of the ruling.'
7
See also Miller v. United States, 294 U.S. 435, 439—440, 55 S.Ct. 440, 79 L.Ed. 977; Lynch v. Tilden Produce Co., 265 U.S. 315, 320—322, 44 S.Ct. 488, 68 L.Ed. 1034.
8
The Commissioner's acquiescence in Caulkins and his withdrawal and reinstatement of nonacquiescence were stated in Revenue Rulings. Present practice appears to be to publish acquiescences and nonacquiescences without incorporating them in rulings. See, e.g., 1964—1 Cum.Bull. 3.
9
Petitioners invoke the principle that 'The Commissioner cannot tax one and not tax another without some rational basis for the difference. And so, assuming the correctness of the principle of 'equality,' it can be an independent ground of decision that the Commissioner has been inconsistent, without much concern for whether we should hold as an original matter that the position the Commissioner now seeks to sustain is wrong.' United States v. Kaiser, 363 U.S. 299, 308, 80 S.Ct. 1204, 1210, 4 L.Ed.2d 1233 (concurring opinion). See also Schuster v. Commissioner of Internal Revenue, 312 F.2d 311 (C.A.9th Cir.); Exchange Parts Co. of Fort Worth v. United States, 279 F.2d 251, 150 Ct.Cl. 538; City Loan & Savings Co. v. United States, 177 F.Supp. 843, aff'd 287 F.2d 612 (C.A.6th Cir.); Brecklein v. Bookwalter, D.C., 231 F.Supp. 404; Connecticut Railway & Lighting Co. v. United States, D.C., 142 F.Supp. 907.
10
The opinion of the Court of Appeals stated that § 117(f) required that all gain realized upon retirement of an obligation to which the section applied be given capital gains treatment; that court's primary concern, however, was also with the question whether the section applied to the Caulkins certificates. Technically, the Commissioner's acquiescence in Caulkins was in the Tax Court decision and not in the decision of the Court of Appeals. As a general matter, the Commissioner still follows the practice of noting his acquiescence or nonacquiescence only in Tax Court decisions.
11
Cf. Griswold, A Summary of the Regulations Problem, 54 Harv.L.Rev. 398, 411—419 (1941).
| 1112
|
381 U.S. 214
85 S.Ct. 1365
14 L.Ed.2d 345
Max JABEN, Petitioner,v.UNITED STATES.
No. 347.
Argued March 9, 1965.
Decided May 17, 1965.
Rehearing Denied Oct. 11, 1965.
See 86 S.Ct. 19.
Morris A. Shenker, St. Louis, Mo., for petitioner.
Nathan Lewin, Washington, D.C., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
The statute of limitations on the felony of willfully attempting to evade federal income taxes requires the Government to obtain an indictment for that offense within six years of the date of its commission, with the proviso:
2
'* * * Where a complaint is instituted before a commissioner of the United States within the period above limited, the time shall be extended until the date which is 9 months after the date of the making of the complaint before the commissioner of the United States. * * *' Internal Revenue Code of 1954, § 6531.
3
On April 15, 1963, the day before the six-year period was to expire, the Government filed a complaint against petitioner Jaben charging him with willfully filing a false return for the year 1956. The Commissioner determined that the complaint showed probable cause for believing that Jaben had committed the offense, and, at the Government's request, issued a summons ordering Jaben to appear at a preliminary hearing on May 15, 1963. On May 11, 1963, the preliminary hearing on the complaint was continued to May 22, 1963, at the request of the United States Attorney, and without objection by petitioner. The preliminary hearing was never held since, on May 17, 1963, the grand jury superseded the complaint procedure by returning an indictment against Jaben, one count of which covered the 1956 attempted evasion which the complaint had charged. The indictment was not returned within the normal six-year limitation period, but if the complaint filed with the Commissioner was valid for the purpose of bringing the nine-month extension into play, then the indictment was timely. Jaben moved to dismiss the count of the indictment pertaining to 1956, arguing that the complaint was insufficient because it did not show probable cause for believing that he had committed the offense. Both the trial court and the Court of Appeals for the Eighth Circuit rejected this claim, 333 F.2d 535. We granted certiorari, 379 U.S. 878, 85 S.Ct. 150, 13 L.Ed.2d 85, to resolve a conflict with United States v. Greenberg, 320 F.2d 467, decided by the Ninth Circuit, in which an identical claim, based on a virtually identical complaint, was accepted. For reasons that follow we agree with the Eighth Circuit and affirm its judgment.
I.
4
Under the Government's interpretation of § 6531, probable cause is not relevant to the complaint's ability to initiate the extension of the limitation period. Section 6531 provides that the nine-month extension is brought into play '(w)here a complaint is instituted before a commissioner of the United States' within the six-year period of limitations (supra, pp. 215-216). Rule 3 of the Federal Rules of Criminal Procedure defines a complaint as
5
'* * * a written statement of the essential facts constituting the offense charged. It shall be made upon oath before a commissioner or other officer empowered to commit persons charged with offenses against the United States.'
6
Since the Government's complaint stated the essential facts constituting the offense of attempted tax evasion and was made upon oath before a Commissioner, the Government contends that regardless of the complaint's adequacy for any other purposes, it was valid for the purpose of triggering the nine-month extension of the limitation period whether or not it showed probable cause. The Government would, thus, totally ignore the further steps in the complaint procedure required by Rules 4 and 5.1 Indeed it follows from its position that once having filed a complaint, the Government need not further pursue the complaint procedure at all, and, in the event that the defendant pressed for a preliminary hearing and obtained a dismissal of the complaint, that the Government could nonetheless rely upon the complaint as having extended the limitation period.
7
We do not accept the Government's interpretation. Its effort to look solely to Rule 3 and ignore the requirements of the Rules that follow would deprive the institution of the complaint before the Commissioner of any independent meaning which might rationally have led Congress to fasten upon it as the method for initiating the nine-month extension. The Commissioner's function, on that view, would be merely to rubberstamp the complaint. The Government seeks to give his role importance in its version of § 6531 by pointing out that he would administer the oath, receive the complaint, and make sure that it stated facts constituting the offense (a requirement which would be met by a charge in the words of the statute); but surely these matters are essentially formalities. The argument ignores the fact that the Commissioner's basic functions under the Rules are to make the judgment that probable cause exists and to warn defendants of their rights. Furthermore, if we do not look beyond Rule 3, there is no provision for notifying the defendant that he has been charged and the period of limitations extended. (Indeed, it is not until we reach Rule 4 that we find a requirement that the complaint must show who it was that committed the offense.) Notice to a criminal defendant is usually achieved by service upon him of the summons or arrest warrant provided for in Rule 4. Neither is appropriate absent a judgment by the Commissioner that the complaint shows probable cause, and no other form of notice is specified by the Rules.
8
More basically, the evident statutory purpose of the nine-month extension provision is to afford the Government an opportunity to indict criminal tax offenders in the event that a grand jury is not in session at the end of the normal limitation period. This is confirmed by the immediate precursor of the present section which provided for an extension 'until the discharge of the grand jury at its next session within the district.' I.R.C.1939, § 3748(a).2 Clearly the statute was not meant to grant the Government greater time in which to make its case (a result which could have been accomplished simply by making the normal period of limitation six years and nine months), but rather was intended to deal with the situation in which the Government has its case made within the normal limitation period but cannot obtain an indictment because of the grand jury schedule. The Government's interpretation does not reflect this statutory intention, for it provides no safeguard whatever to prevent the Government from filing a complaint at a time when it does not have its case made, and then using the nine-month period to make it.
9
The better view of § 6531 is that the complaint, to initiate the time extension, must be adequate to begin effectively the criminal process prescribed by the Federal Criminal Rules. It must be sufficient to justify the next steps in the process—those of notifying the defendant and bringing him before the Commissioner for a preliminary hearing. To do so the complaint must satisfy the probable cause requirement of Rule 4. Furthermore, we think that the Government must proceed through the further steps of the complaint procedure by affording the defendant a preliminary hearing as required by Rule 5, unless before the preliminary hearing is held, the grand jury supersedes the complaint procedure by returning an indictment. This interpretation of the statute reflects its purpose by insuring that within a reasonable time following the filing of the complaint, either the Commissioner will decide whether there is sufficient cause to bind the defendant over for grand jury action, or the grand jury itself will have decided whether or not to indict. A dismissal of the complaint before the indictment is returned would vitiate the time extension.
10
In this case the Government obtained a superseding indictment before any preliminary hearing took place. Under the interpretation which we have adopted it follows that if the complaint satisfied the requirements of Rules 3 and 4, in particular the probable cause standard of Rule 4, then the nine-month extension had come into play and had not been cut off by any later dismissal of the complaint.3 We turn then to the question whether the complaint showed probable cause.
II.
The Jaben complaint read as follows:
11
'The undersigned complainant, being duly sworn, states:
12
'That he is a Special Agent of the Internal Revenue Service and, in the performance of the duties imposed on him by law, he has conducted an investigation of the Federal income tax liability of Max Jaben for the calendar year 1956, by examining the said taxpayer's tax return for the year 1956 and other years; by identifying and interviewing third parties with whom the said taxpayer did business; by consulting public and private records reflecting the said taxpayer's income; and by interviewing third persons having knowledge of the said taxpayer's financial condition.
13
'That based on the aforesaid investigation, the complainant has personal knowledge that on or about the 16th day of April, 1957, at Kansas City, Missouri, in the Western District of Missouri, Max Jaben did unlawfully and wilfully attempt to evade and defeat the income taxes due and owing by him to the United States of America for the calendar year 1956, by filing and causing to be filed with the District Director of Internal Revenue for the District of Kansas City, Missouri, at Kansas City, Missouri, a false and fraudulent income tax return, wherein he stated that his taxable income for the calendar year 1956 was $17,665.31, and that the amount of tax due and owing thereon was the sum of $6,017.32, when in fact his taxable income for the said calendar year was the sum of $40,001.76 upon which said taxable income he owed to the United States of America an income tax of $14,562.99.
14
'(Signed) David A. Thompson
15
'Special Agent
16
'Internal Revenue Service
17
'Kansas City, Missouri.'
18
Petitioner argues that the complaint is basically indistinguishable from that which the Court found wanting in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503. The Giordenello complaint read in relevant part:
19
'The undersigned complainant being duly sworn states: That on or about January 26, 1956, at Houston, Texas in the Southern District of Texas, Veto Giordenello did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation; in violation of Section 174, Title 21, United States Code.
20
'And the complainant further states that he believes that —4 are material witnesses in relation to this charge.'
21
The complaints there and here are materially distinguishable. Information in a complaint alleging the commission of a crime falls into two categories: (1) that information which, if true, would directly indicate commission of the crime charged, and (2) that which relates to the source of the directly incriminating information. The Giordenello complaint gave no source information whatsoever. Its directly incriminating e.g., 'A saw narcotics in B's possession,' in the words of the statute, and even then incomplete, supplemented by 'on or about January 26, 1956, at Houston.' If the Jaben complaint were as barren, it would have stated simply that 'on or about April 16, 1957, at Kansas City, Missouri, Jaben willfully filed a false income tax return.' In fact, it gave dollars-and-cents figures for the amounts which allegedly should have been returned and the amounts actually returned. As to sources, the affiant indicated that he, in his official capacity, had personally conducted an investigation in the course of which he had examined the taxpayer's returns for 1956 and other years, interviewed third persons with whom the taxpayer did business and others having knowledge of his financial condition, and consulted public and private records reflecting the taxpayer's income; and that the conclusion that Jaben had committed the offense was based upon this investigation.
22
Beyond the substance of the complaint there is a material distinction in the nature of the offense charged. Some offenses are subject to putative establishment by blunt and concise factual allegations, e.g., A saw narcotics in B's possession,' whereas 'A saw B file a false tax return' does not mean very much in a tax evasion case. Establishment of grounds for belief that the offense of tax evasion has been committed often requires a reconstruction of the taxpayer's income from many individually unrevealing facts which are not susceptible of a concise statement in a complaint. Furthermore, unlike narcotics informants, for example, whose credibility may often be suspect, the sources in this tax evasion case are much less likely to produce false or untrustworthy information. Thus, whereas some supporting information concerning the credibility of informants in narcotics cases or other common garden varieties of crime may be required, such information is not so necessary in the context of the case before us.
23
Giordenello v. United States, supra, and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, established that a magistrate is intended to make a neutral judgment that resort to further criminal process is justified. A complaint must provide a foundation for that judgment. It must provide the affiant's answer to the magistrate's hypothetical question, 'What makes you think that the defendant committed the offense charged?' This does not reflect a requirement that the Commissioner ignore the credibility of the complaining witness. There is a difference between disbelieving the affiant and requiring him to indicate some basis for his allegations. Obviously any reliance upon factual allegations necessarily entails some degree of reliance upon the credibility of the source. See, e.g., Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 368, 92 L.Ed. 436. Nor does it indicate that each factual allegation which the affiant puts forth must be independently documented, or that each and every fact which contributed to his conclusions be spelled out in the complaint. Compare United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684. It simply requires that enough information be presented to the Commissioner to enable him to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process.
24
In this instance the issue of probable cause comes down to the adequacy of the basis given for the allegation that petitioner's income was $40,001.76 instead of the $17,665.31 he had reported. This is not the type of fact that can be physically observed. The amount of petitioner's income could only be determined by examining records and interviewing third persons familiar with petitioner's financial condition. Compare Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150. Here the affiant, a Special Agent of the Internal Revenue Service, swore that he had conducted just such an investigation and thereafter swore that he had personal knowledge as to petitioner's actual income. In such circumstances, the magistrate would be justified in accepting the agent's judgment of what he 'saw' without requiring him to bring the records and persons to court, to list and total the items of unreported income or to otherwise explain how petitioner's actual income was calculated.
25
We conclude that the challenged count of this indictment is not time-barred.
26
Affirmed.
27
Mr. Justice WHITE, with whom Mr. Justice BLACK joins, concurring in the judgment.
28
The Court rejects the contention of the Government that the filing of a complaint fulfilling the requirements of Rule 3 suffices to trigger the provisions of § 6531 extending the period of limitations. The Court holds that the complaint must also satisfy the probable-cause requirement of Rule 4 and that the Government must proceed with the preliminary hearing under Rule 5. Section 6531 provides that '(w)here a complaint is instituted' the time shall be extended. Assuming that the 'complaint' specified in this provision is one satisfying Rule 4 as well as Rule 3, the statute affords no basis whatever for the Court's holding that the Government must proceed with the preliminary hearing and that 'dismissal of the complaint before the indictment is returned would vitiate the time extension,' ante, at 220, even though an indictment were obtained thereafter within the nine-month period. The statute is unequivocal that the period is extended when the complaint is instituted and, in my view, requires nothing further of the Government.
29
Because I agree with the Court that the complaint supplied an adequate foundation for the Commissioner's determination that probable cause existed, I deem it unnecessary to consider whether § 6531 contemplates a complaint establishing probable cause or merely compliance with Rule 3.
30
Mr. Justice GOLDBERG, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join, concurring in part and dissenting in part.
I.
31
I agree with the Court that the purpose of the tolling provision in the statute of limitations before us, as evidenced by its language and its legislative history, is to avoid penalizing the Government when a criminal defendant cannot be indicted merely because no grand jury is sitting at the time the limitation period expires. In keeping with this purpose, the Government ought to be allowed to present a case prepared before the expiration of the limitation period to the grand jury when it next convenes, but it ought not to be allowed to take advantage of a nine-month extension to prepare a case which was not ready for submission before the end of the statutory period. I believe that the Court, therefore, is quite correct in rejecting the Government's argument that the filing of any complaint which meets the formal requirements of Rule 3 of the Federal Rules of Criminal Procedure is sufficient to toll the statute of limitations. The Government's argument would, in effect, allow it an additional nine months in every case. Rather, the view that I would accept as correct is that the only complaint that tolls the statute is one that begins effectively the criminal process prescribed by the Federal Rules.
32
I further agree with the Court that a complaint has effectively begun the criminal process only when all of the preindictment steps detailed in Rules 3, 4, and 5 have been taken. Only when it has been determined in the preliminary hearing rquired by Rule 5 that probable cause exists 'to believe that an offense has been committed and that the defendant has committed it' can we say with any assurance that the complaint was not filed merely to extend the limitation period, but that it was a complaint which does what a complaint normally does, namely, starts the criminal procedure in motion. A speedy determination by a disinterested magistrate—the United States Commissioner—that probable cause exists also provides assurance that the Government in fact had a case ready for presentation to the grand jury before the limitation period expired. Thus I join the Court's opinion insofar as it holds that only those complaints toll the statute of limitations which also start the criminal machinery in motion by leading to a preliminary hearing in compliance with Rules 3, 4, and 5.
II.
33
The facts of this case lead me to conclude, however, that the procedure outlined in Rule 5 was not followed, for a preliminary hearing was not scheduled within a reasonable time as the Rule requires. A person who is arrested must be taken before a Commissioner immediately and informed of his rights, and a preliminary examination to determine whether probable cause exists to believe that an offense has been committed and that he committed it must be held at that time or promptly thereafter. See Mallory v. United States, 354 U.S. 449, 454, 77 S.Ct. 1356, 1 L.Ed.2d 1479. This preliminary examination must be held promptly because it normally determines whether holding a defendant in custody pending action by the grand jury is warranted. Even when a defendant is not actually in custody but is free on bond a speedy hearing is still necessary, for he should not be required to maintain bond unless it has been determined by a disinterested Commissioner that probable cause exists. While normally when a summons is issued, rather than an arrest warrant, the period of time within which a preliminary examination must be held may be longer than when a defendant has been arrested, for he is not in custody nor need he post bond, in the special circumstances present here involving a statutory period of repose, it is important that the preliminary hearing be held with expedition similar to that necessary when the defendant is in custody or free on bond. A prompt preliminary hearing in this type of case serves as a check to prevent the Government from beginning a prosecution when a case is not ready for submission to the grand jury before the limitation period expires. I should think that, in view of this purpose, it would be sound practice, consistent with the statutory policy of repose, to hold the preliminary hearing and secure a magistrate's determination of probable cause before the statutory period expires. Only then can it be certain that the Government has evidence showing probable cause at hand before the end of the limitation period. And, in an exceptional case, such as the one before us, where the complaint is filed so late that the hearing cannot be held within the limitation period, surely, in order to serve the statutory purpose, the hearing must be held with the same promptness as when a defendant is in custody or on bond, even though a summons, rather than an arrest warrant, was issued.
34
In this case the complaint was filed the day before the limitation period expired. In accordance with the government's wishes, the summons was made returnable 30 days later, and, at the Government's subsequent request, the hearing date was postponed an additional week. In my view, to schedule a hearing to be held 36 days after the limitation period expires, when that hearing normally should have been held before the end of the statutory time for prosecution, is not to schedule it within the 'reasonable time' which the Court itself says is required. Nor can it be said under the circumstances here present that the petitioner waived the right to have the probable cause determination made promptly. Whatever the burden on a defendant may be under other circumstances to move to accelerate a date fixed by a Commissioner upon an ex parte application of the Government, it would be unjust to apply any waiver concept here. Until the holding today there was no authoritative construction that the statute, read in conjunction with the Federal Criminal Rules, entitles the charged defendant to a hearing after issuance of a summons. There is no basis, therefore, for concluding that petitioner, by being silent under these circumstances, knowingly and consciously waived his right to a speedy hearing and determination of whether probable cause existed.
35
I would conclude that a preliminary hearing, which was to determine whether probable cause existed, was not held within a 'reasonable time' as Rule 5 requires, and that since the Government did not fulfill all the requirements of this Rule, the complaint did not serve to institute the proper pre-indictment criminal procedure. It therefore, in my view, was not the type of complaint that tolls the statute of limitations under Internal Revenue Code, § 6531, and petitioner's prosecution should be barred.
III.
36
While it is not necessary, under my view of this case, to determine whether the complaint showed probable cause, since the Court reaches that issue, I believe it appropriate to express my disagreement withits conclusion. If the Court means that the standard of probable cause required for the issuance of a summons directing the defendant to appear for a preliminary hearing is the same as the standard required for issuance of a search warrant or an arrest warrant, which will place the defendant under immediate physical restraint, the complaint before us fails to demonstrate probable cause, for it clearly fails to meet the standards laid down in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503, and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.
37
This Court in Giordenello held that a finding of 'probable cause' must be made by a 'neutral and detached' magistrate who 'assess(es) independently the probability that * * * (an accused) committed the crime charged.' Giordenello v. United States, supra, at 486—487, 78 S.Ct. 1245, 2 L.Ed.2d 1503. (Emphasis added.) The Court also stated,
38
'The purpose of the complaint * * * is to enable the appropriate magistrate * * * to determine whether the 'probable cause' required to support a warrant exists. The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime.' Id., at 486, 78 S.Ct. at 1250.
39
In order to make an independent determination that probable cause exists; the magistrate must be presented with more than the fact that the affiant or his sources are reliable and the affiant's conclusion that the accused is believed to have committed a crime. As we stated in Aguilar v. Texas, supra, at 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, the magistrate or commissioner must also 'be informed of some of the underlying circumstances' supporting the affiant's belief that the accused has committed a crime. This statement was recently reaffirmed in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684. To allow a magistrate to find probable cause when a reliable affiant does no more than swear, as the agent did here, that his investigations led him to conclude that petitioner understated his income, is to remove the function of making an independent determination of probable cause from the hands of the magistrate and to place it in the hands of the agent.
40
The affidavit presented by the revenue agent in this case does no more than list the agent's sources of information examination of public and private records and interviews with third persons—and concludes that the petitioner understated his income. Without the slightest indication of what the agent's examinations and interviews revealed, it is impossible for a 'neutral and detached magistrate' to determine for himself whether probable cause existed. The agent need not set out all the information obtained, but, as we held in Aguilar, some of the underlying facts must be indicated.
41
I cannot accept the Court's view that the nature of the offense charged in this case excuses the Government from setting out any of the facts underlying the conclusion that the petitioner understated his income. Surely, defendants in criminal tax cases whether based upon a net worth theory or otherwise—are as entitled to a magistrate's independent determination of 'probable cause' as any other defendants. Furthermore, I do not believe it impossible, or even very difficult, for the Government to give some indication of the type of information obtained through its perusal of petitioner's books and its interviews with third persons. But I do not believe that it is impossible for a magistrate or commissioner to determine whether probable cause exists without some indication of the facts which led the affiant to his conclusion.
42
It is as true of the complaint before us as of the affidavit in Giordenello that 'it is difficult to understand how the Commissioner could be expected to assess independently the probability that petitioner committed the crime charged.' 357 U.S. at 486—487, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503. In my view, Giordenello and Aguilar require that the complaint not only state the ultimate conclusion that petitioner understated his income and set out the sources of information leading to that conclusion, but that it also set out some of the underlying facts upon which that conclusion is based. Since none of the underlying facts are set out in the complaint before us, I conclude that the probable cause standard of Giordenello and Aguilar is not met. For all the reasons stated, I would reverse the judgment of the Court of Appeals.
1
Rule 4(a) provides:
'If it appears from the complaint that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it. Upon the request of the attorney for the government a summons instead of a warrant shall issue. * * * If a defendant fails to appear in response to the summons, a warrant shall issue.'
Rule 5(c) provides:
'* * * If the defendant waives preliminary examination, the commissioner shall forthwith hold him to answer in the district court. If the defendant does not waive examination, the commissioner shall hear the evidence within a reasonable time. The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. If from the evidence it appears to the commissioner that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the commissioner shall forthwith hold him to answer in the district court; otherwise the commissioner shall discharge him. * * *'
2
This provision was introduced into the tax laws in 1884 by way of an amendment to a bill providing for a limitation period. In proposing the amendment on the floor of the Senate, Senator Hoar stated:
'As has already been said, this limitation which purports to be a limitation of two years is in point of fact in many districts but a limitation of one year, because the indictment must be found by a grand jury within two years within the commission of the offense. If the offense be concealed, or if it be discovered a year before the grand jury meet, it would of the United States within the period move this amendment:
"Provided, That where a complaint shall be instituted before a commissioner of the United sTates within the period above limited, the period shall be extended until the discharge of the grand jury at its next session within the district.'
'I think there will be no objection to that.' 15 Cong.Rec. 5771. The time for which the period was extended was change to nine months in 1954.
3
A dissenting opinion accepts our interpretation of the statute, but, likening petitioner's position to one who is incarcerated awaiting a preliminary hearing, argues that petitioner was not scheduled to have a preliminary hearing within the 'reasonable time' required by Rule 5(c). We reject this view of the case. (1) Although the statute should be interpreted to reflect its intent, it greatly overplays that intent to invest the procedure required to effectuate it with the same sense of urgency which might be thought to attend a preliminary hearing for an incarcerated prisoner. (2) A defendant can fully protect himself from unreasonable delay by moving for advancement of the preliminary hearing date and by objecting to any postponements. Petitioner made no such motion or objection, and at no point in the trial or appellate review of this case has he objected to the scheduling of the preliminary hearing.
Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479, did not deal with preliminary hearings under Rule 5(c), but with the requirement of Rule 5(a) that a person who is arrested must be taken 'without unnecessary delay before the nearest available commissioner' so that he can be apprised of his rights.
4
So in original.
| 01
|
381 U.S. 131
85 S.Ct. 1375
14 L.Ed.2d 290
L. W. HOLT et al., Petitioners,v.COMMONWEALTH OF VIRGINIA.
No. 464.
Argued April 27 and 28, 1965.
Decided May 17, 1965.
Marvin M. Karpatkin, New York City, for petitioners.
Francis C. Lee, Richmond, Va., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
The petitioners, both of whom are lawyers, were adjudged guilty and each was fined $50 for contempt of court by the Circuit Court of the City of Hopewell, Virginia. The Virginia Supreme Court of Appeals affirmed, rejecting petitioners' contentions that their convictions violated the Due Process Clause of the Fourteenth Amendment. 205 Va. 332, 136 S.E.2d 809. We granted certiorari. 379 U.S. 957, 85 S.Ct. 644, 13 L.Ed.2d 553.
2
The charges against petitioners came about in this way. Petitioner Dawley represented certain defendants in a libel suit pending before Circuit Judge Holladay. The libel case was dismissed by agreement of the parties. After the dismissal Judge Holladay had the court clerk and counsel, including the petitioner Dawley, come into the judge's chambers and there the judge asked Dawley three times if he had had anything to do with making the defendants in the libel case 'unavailable to be served with subpoenas.' Dawley refused to answer and later, in court, again refused to answer. Judge Holladay then directed the Commonwealth's Attorney to prepare an order directing Dawley to show cause why he should not be punished for contempt. Dawley thereafter filed a motion requesting Judge Holladay to disqualify himself from trying the contempt case. Judge Holladay denied this motion. Dawley then filed a motion for change of venue. Petitioner Holt appeared as counsel representing Dawley and read this motion to the judge as a part of his argument urging a change of venue. It is upon the allegations about Judge Holladay in that motion and the reading of them by Holt that the present convictions for contempt are based.
3
The motion for change of venue charged, among other things, that because of local prejudice Dawley could not get a fair trial in Hopewell and, crucial to this contempt conviction,
4
'3. That the said Judge Carlton E. Holladay, who presided as Judge in said libel suit, and who fails and refuses to disqualify himself as Judge in the pending trial of the Defendant, E. A. Dawley, Jr., has, with respect to said contempt action and is now in effect and/or in fact acting as police officer, chief prosecution witness, adverse witness for the defense, grand jury, chief prosecutor and judge.
5
'4. That in addition to the foregoing, said Judge Carlton E. Holladay did intimidate and harass and is intimidating and harassing the lawyer representing said E. A. Dawley, Jr., viz, Leonard W. Holt, Esq., the effect of which is to seriously hamper the efforts of said Leonard W. Holt in defending the said E. A. Dawley, Jr.; that said harassment and intimidation arises out of and in connected solely with said Leonard W. Holt's participating in the defense of said E. A. Dawley, Jr. in the contempt action; that part of said harassment and intimidation occurred at a hearing of this contempt action in the Hopewell Circuit Court on January 8, 1962, at which hearing the said Carlton E. Holladay revealed that he had been making an independent investigation and inquiry of Mr. Holt's conduct in this contempt defense, and said Judge at said place and time made the statement that he would 'deal with' said Leonard W. Holt after he, the judge, had dealt with said E. A. Dawley, Jr.' After these charges were read to Judge Holladay by Holt, this colloquy took place:
6
'The Court: On the motion for change of venue, does that apply whether your client would be tried before a jury or before the Court? Does it apply in both cases?
7
'Mr. Holt: We say it would apply.
8
'The Court: Apply in both cases.
9
,'at this time I might say that I do not see how that this Court can pass unnoticed the matters and things that have been presented to the Court by Mr. Dawley in a plea filed in the Court and presented here in Court and by Mr. Holt as his counsel and argued in court. I think that the plea is contemptuous, I think the argument is contemptuous.
10
'At this time both E. A. Dawley, Jr., and Leonard W. Holt are held and adjudged summarily to be in contempt of this Court.
11
'I will take under advisement the punishment and advise you of it during the day.
12
'Court will adjourn for lunch.
13
'Mr. Holt: Please, before the Court adjourns, may we get the specificity on the part of the Court regarding what is considered in the pleading, if anything, contemptuous? I think under the laws of the Commonwealth and United States we are in this position—that if something has been said which is contemptuous, there be elements of intent that should be present, and if the element of intent be present, and there are certain things which flow under it in terms—
14
'The Court: I don't think that you need any specification or bill of particulars on that. I think that you can read it, Mr. Dawley can read it, and I think it is plain to the people who are in the courtroom that the remarks are contemptuous, and you summarily have been held in contempt of Court.
15
'And Court stands adjourned at this time for lunch.'
16
Thereafter the judge denied the motion for change of venue and fined each petitioner $50.
17
The Virginia Supreme Court of Appeals, in affirming, held that the language used in the motion violated Va. Code Ann. § 18.1 292 (1960 Repl. Vol.), which authorizes summary punishment of a person who misbehaves in the presence of the court so as to obstruct justice, or who uses '(v)ile, contemptuous or insulting language' to or about a judge in respect of his official acts.1 Petitioners contend that their convictions through this application of the state law to them in several respects deny due process of law guaranteed by the Due Process Clause of the Fourteenth Amendment. The view we take regarding one of these contentions makes it unnecessary for us to consider the others.2
18
It is not charged that petitioners here disobeyed any valid court order, talked loudly, acted boisterously, or attempted to prevent the judge or any other officer of the court from carrying on his court duties. Their convictions rest on nothing whatever except allegations made in motions for change of venue and disqualification of Judge Holladay because of alleged bias on his part. It is not claimed, and probably could not seriously be claimed, that petitioners, by filing their motions, violated any duty they owed the court. Dawley had been ordered by the judge to appear to defend himself against a charge of contempt and Holt appeared as his counsel. And it is settled that due process and the Sixth Amendment guarantee a defendant charged with contempt such as this 'an opportunity to be heard in his defense—a right to his day in court—* * * and to be represented by counsel.' In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682. See also Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. The right to be heard must necessarily embody a right to file motions and pleadings essential to present claims and raise relevant issues. See Willner v. Committee on Character and Fitness, 373 U.S. 96, 105, 83 S.Ct. 1175, 1181, 10 L.Ed.2d 224. And since 'A fair trial in a fair tribunal is a basic requirement of due process,' In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942, it necessarily follows that motions for change of venue to escape a biased tribunal raise constitutional issues both relevant and essential. Cf. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751; Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749. Consequently, neither Dawley nor his counsel could consistently with due process be convicted for contempt for filing these motions unless it might be thought that there is something about the language used which would justify the conviction.
19
As previously stated, the words used in the motions were plain English, in no way offensive in themselves, and wholly appropriate to charge bias in the community and bias of the presiding judge. The Supreme Court of Appeals of Virginia considered the motion for change of venue 'a vehicle to heap insults upon the court, a studied attempt to smear the judge.' 205 Va., at 338, 136 S.E.2d, at 814. But if the charges were 'insulting' it was inherent in the issue of bias raised, an issue which we have seen had to be raised, according to the charges, to escape the probability of a constitutionally unfair trial. Virginia apparently contends here that the right to present a defense is not involved in this case either (1) because the motion for change of venue was not in the proper form and not authorized by state law in such circumstances, or (2) because the charges of bias were false. As to the first argument, assuming it could have any relevance where a defendant asserts a federally guaranteed right to a fair trial, the motion for change of venue was duly filed with the clerk, and the trial court without objection set it down for hearing, specifically invited argument on it, and decided the motion on the merits, without any intimation that a motion for change of venue was not proper in these circumstances. Nor can we accept Virginia's apparent contention that the contempt convictions should be sustained on the ground that petitioners' charges of bias were false. The issue of truth or falsity of these charges was not heard, the trial court choosing instead to convict and sentence petitioners for having done nothing more than make the charges. Even if failure to prove their allegations of bias could under any circumstances ever be made part of the basis of a contempt charge against petitioners, these convictions cannot rest on any such unproven assumption.
20
Our conclusion is that these petitioners have been punished by Virginia for doing nothing more than exercising the constitutional right of an accused and his counsel in contempt cases such as this to defend against the charges made. The judgment of conviction is reversed and the cause is remanded to the Supreme Court of Appeals of Virginia for further proceedings not inconsistent with this opinion.
21
Reversed and remanded.
22
Mr. Justice HARLAN, dissenting.
23
The Virginia Supreme Court of Appeals has in effect held that the manner in which petitioners presented their motion for a change of venue violated professional standards governing members of the Virginia Bar. This Court now sets aside the trivial disciplinary penalty imposed simply because in its view petitioners' conduct was not out of bounds. Believing that any differences over the professional propriety of petitioners' actions involve nothing of constitutional proportions, I would affirm the judgment of the Virginia Supreme Court of Appeals.*
1
'The courts and judges may issue attachments for contempt, and punish them summarily, only in the cases following:
'(1) Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice;
'(2) Violence, or threats of violence, to a judge or officer of the court, or to a juror, witness or party going to, attending or returning from the court, for or in respect of any set or proceeding had or to be had in such court;
'(3) Vile, contemptuous or insulting language addressed to or published of a judge for or in respect of any act or proceeding had, or to be had, in such court, or like language used in his presence and intended for his hearing for or in respect of such act or proceeding;
'(4) Misbehavior of an officer of the court in his official character;
'(5) Disobedience or resistance of an officer of the court, juror, witness or other person to any lawful process, judgment, decree or order of the court.' Va. Code Ann. § 18.1—292 (1960 Repl. Vol.).
2
We neither reach nor consider the questions whether the summary convictions of both Dawley and Holt were invalid because their alleged misconduct did not disturb the court's business or threaten demoralization of its authority, cf. In re Oliver, 333 U.S. 257, 277—278, 68 S.Ct. 499, 509—510, 92 L.Ed. 682, whether summary conviction of Dawley was invalid because he committed no act in open court, and whether Judge Holladay was so personally embroiled and interested in the controversy that he should not have decided the contempt issue.
*
I do not think that any of the other contentions not reached by this Court can be said, on this record, to present a substantial federal question (ante, pp. 135-136, n. 2).
| 34
|
381 U.S. 233
85 S.Ct. 1379
14 L.Ed.2d 358
UNITED STATES, Petitioner,v.ATLAS LIFE INSURANCE COMPANY.
No. 489.
Argued March 31, 1965.
Decided May 17, 1965.
[Syllabus from pages 233-234 intentionally omitted]
Archibald Cox, Sol. Gen., for petitioner.
Norris Darrell, New York City, for respondent.
Daniel B. Goldberg, New York City, for Attorney General of Louisiana and others, as amici curiae.
Mr. Justice WHITE delivered the opinion of the Court.
1
The Life Insurance Company Income Tax Act of 1959,1 which represents a comprehensive overhaul of the laws relating to the taxation of life insurance companies, places a tax upon taxable investment income and upon one-half the amount by which total gain from operations exceeds taxable investment income.2 In arriving at taxable investment income and gain from operations, the 1959 Act, consistent with prior law in this regard, recognizes that life insurance companies are required by law to maintain policyholder reserves to meet future claims, that they normally add to these reserves a large portion of their investment income and that these annual reserve increments should not be subjected to tax. The question in this case is whether the method by which Congress chose to deal with these annual reserve increments and to arrive at taxable investment income places an impermissible tax on the interest earned by life insurance companies from municipal bonds, within the meaning of the Act itself and the relevant cases in this Court.
I.
2
The 1959 Act defines life insurance company reserves,3 provides a rather intricate method for establishing the amount which for tax purposes is deemed to be added each year to these reserves4 and in § 804 prescribes a division of the investment income of an insurance company into two parts, the policyholders' share and the company's share.5 More specifically, the total amount to be added to the reserve—the policy and other contract liability requirements—is divided by the total investment yield6 and the resulting percentage is used to allocate each item of investment income, including tax-exempt interest, partly to the policyholders and partly to the company. In this case, approximately 85% of each item of income was assigned to the policyholders and was, as the Act provides, excluded from the company's taxable income. The remainder of each item is considered to be the company's share of investment income. From the total amount allocated to the company the Act allows a deduction of the company's share of tax-exempt interest (and of other nontaxed items) to arrive at taxable investment income.7 The taxable investment income for the purposes of arriving at the portion of gain from operations which is to be subjected to tax is arrived at by much the same process as above described.
3
Section 804(a)(6), however, provides as follows:
4
'(6) Exception.—If it is established in any case that the application of the definition of taxable investment income contained in paragraph (2) results in the imposition of tax on—
5
'(A) any interest which under section 103 is excluded from gross income,
6
'adjustment shall be made to the extent necessary to prevent such imposition.'
7
An identical exception is contained in § 809(b)(4) providing for the calculation of gain from operation. Section 103 of the Code provides for the exclusion from gross income of the interest earned on state and municipal bonds.
8
According to the Commissioner, the company's income from investments includes only its pro rata share of tax-exempt interest and since this share is fully deductible by the company, the law imposes no tax at all on exempt interest. Atlas, however, claims otherwise: The company is entitled to deduct from total investment income both the full amount of the annual addition to reserves and the full amount of exempt interest received; by assigning part of exempt interest to the reserve account rather than assigning only taxable income, the Act necessarily places more taxable income in the company's share of investment return; the company thus pays more tax because it has received tax-exempt interest of which a portion must be allocated to the reserve account.
9
Claiming that it was entitled to the adjustments provided for in §§ 804(a)(6) and 809(b)(4), the company sued for a refund in the District Court. The complaint also alleged the treatment accorded tax-exempt interest was contrary to the Constitution of the United States and to the principles set forth in National Life Ins. Co. v. United States, 277 U.S. 508, 48 S.Ct. 591, 72 L.Ed. 968, and State of Missouri ex rel. Missouri Ins. Co. v. Gehner, 281 U.S. 313, 50 S.Ct. 326, 74 L.Ed. 870. The District Court rejected these claims, 216 F.Supp. 457 (D.C.N.D.Okl.), but the Court of Appeals reversed, 333 F.2d 389 (C.A.10th Cir.). That court considered the 1959 formula to impose a tax on tax-exempt interest within the meaning of the National Life and Gehner cases and hence by the terms of §§ 804(a)(6) and 809(b)(4) an adjustment was required. We granted certiorari to consider this important question relating to the taxation of life insurance companies. 379 U.S. 927, 85 S.Ct. 326, 13 L.Ed.2d 340.
10
We reverse, holding that in the circumstances of this case there is no statutory or constitutional barrier to the application of the formula provided in § 804 to arrive at the taxable investment income of Atlas and hence the exceptions provided in §§ 804(a)(6) and 809(b)(4) are not applicable.
II.
11
Under the 1959 Act the undivided part of a life insurance company's assets represented by its reserves is considered as a fund held for the benefit of the policyholders. The required annual addition to reserve is drawn from the income earned from investments of the commingled assets. Each item of investment income, including tax-exempt interest, is divided into a policyholders' share and a company's share. The policyholders' share is added to the reserve, is excluded for tax purposes from the gross income of the company and is not taxed to either company's share of investment income company's share jof investment income is then reduced by its share of tax-exempt interest to arrive at taxable investment income. It is apparent from the face of the Act that this is the formula which Congress intended to be of general application and that Congress did not consider the application of the formula in the usual case to lay a tax on exempt interest, or to have any such effect, so as to bring the exception clauses into operation. Otherwise the exception would become the rule and the general formula of little, if any, utility.
12
This view of the section is fully supported by its legislative history. As H.R. 4245 came to the Senate after passage by the House, it provided for deducting the annual addition to reserves, but to prevent a 'double deduction' reduced the deduction by a portion of tax-exempt interest.8 This treatment of tax-exempt interest was one of many subjects of comment in the extensive hearings which followed before the Senate Committee on Finance. It was repeatedly and strongly argued by many that life insurance companies were entitled to deduct in full both the annual addition to reserves and the entire amount of tax-exempt interest, that the provisions of H.R. 4245 with regard to tax-exempt interest discriminated against the insurance companies, that the section was constitutionally invalid under the National Life and Gehner cases and that the formula would have adverse consequences on the municipal bond market.9 Other witnesses, however, including those representing the Treasury Department, supported the bill and considered it to accord proper and constitutionally permissible treatment to municipal bond interest.10 It is very doubtful that there remained at the conclusion of the hearings any unexplored facts or legal arguments concerning this aspect of the bill.
13
The Senate Committee, with the hearings behind it, reported out a bill with amendments which, among other things, took a decidedly different approach to the ascertainment of the annual addition to reserves and to the handling of tax-exempt interest. This approach was essentially that which is contained in the statute as described above.11
14
As time and again stated in the Committee Report and by those who presented the bill on the floor of the Senate, the purpose of the formula provided by the Senate was to avoid taxing exempt interest.12 Senator Byrd, the Committee chairman, stated that '(i)n providing the formula I have described to the Senate it was the intention of the committee not to impose any tax or tax-exempt interest.' 105 Cong.Rec. 8401. It is extremely difficult to read the hearings, the reports, and the debates without concluding that in the opinion of Congress the formula it provided, without adjustment under § 804(a)(6) or § 809(b)(4), did not impose a tax on exempt interest in either the statutory or constitutional sense.
15
None of the materials called to our attention, however, explain why or for what purpose §§ 804(a)(6) and 809(b)(4) were added to the Act, save for mere recitations in the reports and the debates that an adjustment would be required in any case where tax-exempt interest was shown to be subjected to tax.13 It may be that Congress thought that peculiar facts and circumstances in particular cases would require different treatment than the general formula would provide. If this was the case, no examples or illustrations of these aberrational situations were referred to or explained. And if this was to be the sole function of §§ 804(a)(6) and 809(b)(4) the Commissioner is surely entitled to a judgment, for there is nothing in this record indicating that this case is anything but the typical one to which Congress intended to apply the general formula.
16
Atlas, however, in effect views §§ 804(a)(6) and 809(b)(4) as built-in safety valves to be triggered and become fully operational by a final determination in a lawsuit, such as this one, that the new formula, contrary to the judgment of Congress, does indeed place a tax on exempt interest within the meaning of the relevant cases heretofore decided by this Court. This is not an unreasonable view of the purposes which Congress may have had in writing the exception provisions into the Act, but we cannot agree with Atlas or the Court of Appeals that National Life, 277 U.S. 508, 48 S.Ct. 591, and Gehner, 281 U.S. 313, 50 S.Ct. 326, provide the necessary triggering to bring these clauses into play.
III.
17
In National Life, the Court struck down a provision of the federal income tax law which permitted insurance companies to exclude municipal bond interest from their gross income and at the same time reduce the reserve deduction otherwise available to the company by the full amount of the exempt interest which was excluded from gross income, the result being that the company paid as much tax as it would have paid had the same total income been entirely from taxable sources. Under that provision, a company shifting its investments from taxable to nontaxable securities would have lowered neither its taxable income nor its total tax. As compared with the company deriving its income only from taxable sources, the enterprise with the same total amount of investment income derived partly from exempt and partly from taxable sources would pay more tax per dollar of taxable gross income, i.e., taxable income before deduction for the reserve. Unable to perceive any purpose in reducing one reduction by the full amount of another, save for an intent to impose a tax on exempt receipts, the Court ruled that '(o)ne may not be subjected to greater burdens upon his taxable property solely because he owns some that is free.' 277 U.S., at 519, 48 S.Ct., at 593.
18
It is obvious that this is not the case under the 1959 Act. Here, a company receiving income from both exempt and nonexempt securities pays not the same, but less, tax than the company with an identical amount of gross income derived from only taxable sources. As the taxpayer displaces taxable income with exempt income, the size of the tax base, and the tax, are reduced. The tax burden per taxable dollar of taxable gross income does not increase, but remains the same.14
19
But Atlas urges that the rule of National Life, when read in conjunction with State of Missouri ex rel. Missouri Ins. Co. v. Gehner, 281 U.S. 313, 50 S.Ct. 326, means that a tax is imposed on tax-exempt interest whenever the liability of the taxpayer receiving such interest is greater than it would have been if the tax-exempt interest had not been received. In the Gehner case a state ad valorem property tax was imposed on the net personal property of an insurance company. Exempt government bonds were excluded from the tax base but only 84%—the ratio of taxable assets to total assets—of the legally required reserves was allowed as a deduction. The Court considered National Life to hold that 'a state may not subject one to a greater burden upon his taxable property merely because he owns tax-exempt government securities.' 281 U.S., at 321, 50 S.Ct., at 328. This paraphrase of the National Life holding was correct and states the principle for which both of these cases have been cited.15 But it is obvious that the tax in Gehner did not infringe this rule. Reducing the reserve deduction by the ration of taxable assets to total assets did not result in an increased tax burden on taxable property. The Court, nevertheless, invalidated the tax because 'the ownership of United States bonds is made the basis of denying the full exemption which is accorded to those who own no such bonds.' 281 U.S., at 321—322, 50 S.Ct., at 328. The company was apparently to have the full benefit of both the exclusion of the government bonds and the deduction for the full amount of policyholder reserves. Otherwise, the law would not disregard the ownership of the bonds in exacting the tax. The Gehner case does, therefore, condemn more than an increase in the tax rate on taxable dollars for those owning exempt securities.
20
This extension of National Life was soon repudiated.16 In Denman v. Slayton, 282 U.S. 514, 51 S.Ct. 269, 75 L.Ed. 500, decided but one Term after Gehner, the Court unanimously upheld § 214(a)(2) of the Revenue Act of 1921, which permitted the deduction of interest generally except interest on indebtedness incurred or continued to purchase or carry tax-exempt securities, as applied to a dealer in securities whose disallowed interest incurred to carry exempt bonds exceeded the return from the bonds. Although the parties argued both Gehner and National Life, the Court did not mention Gehner and said National Life was radically different, since the dealer 'was not in effect required to pay more upon his taxable receipts than was demanded of others who enjoyed like incomes solely because he was the recipient of interest from tax-free securities.' 282 U.S., at 519, 51 S.Ct., at 270. But he was, like the taxpayer in Gehner, required to pay a greater tax than would be the case if the exempt securities were ignored entirely; absent ownership of the exempt bonds, the disallowed interest would have been deductible from taxable income. Ownership of exempt bonds was indeed the 'basis of denying the full exemption which is accorded to those who own no such bonds.' Gehner, 281 U.S., at 321—322, 50 S.Ct., at 328. Thus the Court not only refused to follow the implications of Gehner in the context of the federal income tax, but also sustained the propriety of disallowing an expense attributable to the production of nontaxable income. Such disallowance was not to impose an impermissible burden on the exempt receipts. 'While guaranteed exemptions must be strictly observed, this obligation is not inconsistent with reasonable classification designed to subject all to the payment of their just share of a burden fairly imposed.' 282 U.S., at 519, 51 S.Ct., at 270.
21
The Court followed Denman, and again distinguished National Life, without mentioning Gehner, in Helvering v. Independent Life Ins. Co., 292 U.S. 371, 54 S.Ct. 758, where the Revenue Acts of 1921 and 1924 permitted deduction of depreciation and expenses of buildings owned by life insurance companies only if the company included in its gross income the rental value of space it occupied. The Court assumed that the rental value was not income, and could not constitutionally be taxed, but upheld the measure as a valid apportionment of expenses attributable to the space occupied by the company and the space for which rents are received. Denman v. Slayton was said to make clear the distinction between a permissible exclusion from deductions of the amount attributable to exempt income and a tax on exempt property. This apportionment fell within the former and did not lay a tax on the rental value of the owner's use of his building.
IV.
22
We affirm the principle announced in Denman and Independent Life that the tax laws may require tax-exempt income to pay its way. In our view, Congress has done no more in the 1959 Act than to particularize this principle in connection with taxing the income of life insurance companies.
23
An insurance company obtains most of its funds from premiums paid to it by policyholders in exchange for the company's promise to pay future death claims and other benefits. The company is also obligated to maintain reserves, which, if they are to be adequate to pay future claims, must grow at a sufficient rate each year. The receipt of premiums necessarily entails the creation of reserves and additions to reserves from investment income. Thus the insurance company is not only permitted to invest, but it must invest; and it must return to the reserve a large portion of its investment income. As no insurance company would deny, there is sufficient economic and legal substance to the company's obligation to return a large portion of investment income to policyholder reserves to warrant or require the exclusion of investment income so employed from the taxable income of the company. And we think the policyholders' claim against investment income is sufficiently direct and immediate to justify the Congress in treating a major part of investment income not as income to the company but as income to the policyholders. Whether viewed as income to the policyholders, or, as Atlas would have it, as the principal cost of carrying on the business which produces the company's net investment income,17 a large portion of total investment income is credited to the reserve and eliminated from taxable investment income.
24
Under the 1959 Act this portion is arrived at by subjecting each dollar of investment income, whatever its source, to a pro rata share of the obligation owed by the company to the policyholders, from whom the invested funds are chiefly obtained. In our view, there is nothing inherently arbitrary or irrational in such a formula for setting aside that share of investment income which must be committed to the reserves. Undoubtedly policyholders have not contracted to have assigned to them either taxable or exempt dollars. Their claim can be fully satisfied with either, but it runs against all investment income, whatever its source. We see no sound reason, legal or economic, for distinguishing between the taxable and nontaxable dollar or for saying that the reserve must be satisfied by resort to taxable income alone. Interest on municipal bonds may be exempt from tax, but this does not carry with it exemption from the company's obligation to add a large portion of investment income to policyholder reserve.18
25
Tax exemption cannot change the substance of this undertaking. And the statutory formula allocating so much of each dollar of investment income as the reserve increment bears to total investment income is quite clearly consistent with it. For the formula treats taxable and exempt income in the same way, deeming that both are saddled with an equal share of the company's obligation to policyholders. We think that Congress can treat the receipts from investment of a pool of fungible assets in this manner and that the taxpayer's desired allocation of these receipts is not constitutionally required.
26
It is said, however, that a company investing 'idle' assets in municipal bonds and thereby adding exempt interest to its income will pay more tax, and at a higher rate per dollar of taxable income, than if it had not made the additional investment at all. Likewise, it is claimed, two companies having the same amount of investment in taxable securities and the same amount of commitments to policyholders, but one having some municipal securities in addition, will have a different tax bill, the latter paying more tax and at a higher rate because of the ownership of the bonds. But insurance companies accumulate funds to invest and they must, and do, invest. Their choice is not between investing and not investing at all but between investing in one kind of securities or another. Under the 1959 formula investing in exempt securities results in a lower total tax than investing in taxable securities and the tax rate per taxable dollar does not increase. It is likewise unrealistic to compare the tax burdens of two companies, each with the same amount of taxable income but one with exempt income in addition, and to assume in the comparison that each has the same obligation to augment reserves. The likelihood is that if the one company has additional exempt income which the other does not have, it also has more assets, larger reserves and a greater reserve claim against investment income, which will reduce taxable income and substantially offset the alleged disparity in tax burden between the two companies.
27
Undoubtedly the 1959 Act does not wholly ignore the receipt of tax-exempt interest in arriving at taxable investment income. The formula does pre-empt a share of tax-exempt interest for policyholders and the company will pay more than it would if it had the full benefit of the exclusion for reserve additions and at the same time could reduce taxable income by the full amount of exempt interest. But this result necessarily follows from the application of the principle of charging exempt income with a fair share of the burdens properly allocable to it. In the last analysis Atlas' insistence on both the full reserve and exempt-income exclusions is tantamount to saying that those who purchase exempt securities instead of taxable ones are constitutionally entitled to reduce their tax liability and to pay less tax per taxable dollar than those owning no such securities. The doctrine of intergovernmental immunity does not require such a benefit to be conferred on the ownership of municipal bonds. Congress was entitled to allocate investment income to policyholders as it did. The formula was 'designed to subject all to the payment of their just share of a burden fairly imposed,' Denman, supra, 282 U.S., at 519, 51 S.Ct., at 270, and as applied to this case did not impose a tax on income excludable under § 103 of the Internal Revenue Code.
28
Reversed.
1
73 Stat. 112, Int.Rev.Code §§ 801—820.
2
The Act provides a three-phase procedure for taxation of life insurance companies. Under phase one the tax base represents the life insurance company's share of income from interest, dividends, rents, royalties, and other investment sources less investment expenses and deduction of the company's share of exempt interest and other items. § 804. Under phase two the tax base represents 50% of the excess of total net income from all sources 'gain from operations'—over taxable investment income. This excess, referred to as underwriting gain, consists of mortality and loading savings, i.e., savings resulting from fewer deaths per age group than were assumed in establishing premiums and reserves and any reduced expenses in servicing policies. § 809. It also may include a portion of investment income which is not taxed under phase one, since in calculating the amount of investment income to be allocated to policyholders under phase two, the reserves are multiplied by the company's required interest rate rather than the company's average or current earnings rate used in phase one. § 809(a). This difference is minimized by other adjustments to the reserve under phase one whenever the applicable earnings rate exceeds or is less than the assumed rate. See note 4, infra. If there is underwriting loss under phase two, the entire loss is deducted from the taxable investment income as computed under phase one. If there is gain, half of this gain is added to the phase one tax base.
Phase three imposes a tax on certain underwriting gains made available to shareholders which are not taxed under phase two. § 815.
3
Int.Rev.Code § 801(b)(1).
Life insurance reserves may be defined simply as that fund which, together with future premiums and interest, will be sufficient to pay future claims. Under the statute such reserves are defined as amounts computed or estimated on the basis of recognized mortality tables and assumed rates of interest, set aside to mature or liquidate future claims arising from life, annuity, and noncancellable health and accident insurance policies, and required by law, with some exceptions not pertinent here.
4
Int.Rev.Code § 805.
This amount is called the 'policy and other contract liability requirements' and is determined by a series of calculations. The company's 'adjusted life insurance reserves' are multiplied by the current earnings rates or the average earnings rate for the current and four preceding years, whichever is lower. 'Adjusted life insurance reserves' are the life insurance reserves required by law adjusted for the difference between the assumed interest rate used by the company in computing such reserves and the actual earnings rate. The reserve is reduced by 10% for every 1% by which the applicable earnings rate exceeds the company's assumed interest rate. To the amount so calculated are added pension plan reserves multiplied by the current earnings rate and interest paid during the taxable year.
5
Int.Rev.Code § 804(a)(1):
'Exclusion of policyholders' share of investment yield.—The policyholders' share of each and every item of investment yield (including tax-exempt interest, partially tax-exempt interest, and dividends received) of any life insurance company shall not be included in taxable investment income. For purposes of the preceding sentence, the policyholders' share of any item shall be that percentage obtained by dividing the policy and other contract liability requirements by the investment yield; except that if the policy and other contract liability requirements exceed the investment yield, then the policyholders' share of any item shall be 100 percent.'
6
Investment yield is gross investment income less specified deductions, including investment expenses, real estate expenses, depreciation, depletion and trade and business expenses, subject to certain exceptions and limitations. Int.Rev.Code §§ 804(b), (c).
7
Included in the investment yield which is divided between the policyholders and company, in addition to interest on state and municipal bonds, are partially nontaxed interest on federal bonds and intracorporate dividends. Section 804(a)(2) permits deduction of the company's nontaxed share of these items along with interest on exempt bonds.
8
H.R.Rep. No. 34, 86th Cong., 1st Sess., 28—29, 31.
9
See Hearings on H.R. 4245 before the Senate Committee on Finance, 86th Cong., 1st Sess., 45—46, 48, 121, 187, 248—266, 304 318, 404—409, 516—518, 613—614, 694—699, 700—702.
10
Id., at 19—60, 646—654.
11
S.Rep. No. 291, 86th Cong., 1st Sess., 6.
12
As stated in the Senate Report on H.R. 4245, the Committee on Finance was of the opinion that the formula provided in § 804 did not impose a tax on tax-exempt interest—'(t)he purpose of your committee in providing this treatment is to exempt a life insurance company from tax on any tax-exempt interest * * *.' S.Rep. No. 291, 86th Cong., 1st Sess., 17. See also pp. 6, 18, 46, U.S.Code Congressional and Administrative News 1959, p. 1592.
Senator Byrd in explaining the bill to the Senate presented a letter from the Department of the Treasury which said that the formula provided by the bill did not place a tax on exempt interest, that the additional language of § 804(a)(6) establishing an exception was not at all necessary but that just to make sure it had been provided that in any case the formula resulted in taxing interest excludable under § 103, an adjustment would be made. 105 Cong.Rec. 8402. The more detailed explanation of the bill by Senator Byrd was to the same effect. 105 Cong.Rec. 8404. Senator Curtis, a member of the Senate Committee, delivered a comprehensive speech in support of the bill in the course of which he said that his earlier concern about inadvertently taxing exempt interest had been fully met by the bill. After reviewing the formula, with examples illustrating its operation and without mentioning the exception of § 804(a)(6) he remarked that 'no tax-exempt income or credits of life insurance companies will be included in the tax base of such companies, under this bill. This should allay any fear that any constitutional provision is transgressed.' 105 Cong.Rec. 8429. The bill passed in the Senate, 105 Cong.Rec. 8438, and the Conference Report, which may be said to have adopted the Senate approach to the problem involved in this case, H.R.Rep. No. 520, 86th Cong., 1st Sess., 4, 14—15, U.S.Code Congressional & Administrative News 1959, p. 1663, 105 Cong.Rec. 10412, was adopted by both Houses.
13
See S.Rep. No. 291, 86th Cong., 1st Sess., 17, 24; H.R.Rep. No. 520, 86th Cong., 1st Sess., 15; 105 Cong.Rec. 8401, 10400, 10412—10414. Representative Mills, Chairman of the House Ways and Means Committee, stated:
'As agreed to by the conferees, the final version of H.R. 4245 extensively rewrites the provisions of the House bill dealing with tax-exempt interest and dividends received, including the addition of a proviso to the effect that if in any particular case the formula under the bill does not provide the proper treatment of these items, appropriate adjustment will be made. It is my belief that the appropriate deduction was allowed by the House bill and that these provisions of the final bill, which closely follow the Senate amendment, make no change of substance.' 105 Cong.Rec. 10412.
14
Where income from taxable sources is displaced by the same amount of income from exempt bonds, the total investment yield and the reserve exclusion remain the same. Thus the proportion of each item of income allocated to the policyholders' share and the company's share also remains the same. Since the amount of exempt income allocated to the company is larger and that share is fully deductible, the tax base is correspondingly smaller.
The result is a decrease in the tax commensurate with the extent to which the company's taxable income is taxed. With a fully taxable investment yield of $1,000,000 and a policyholders' share of $800,000, 20% of the investment yield would be included in gain from operations. Gain from operations would be reduced by 20% of any part of the investment yield that was shifted from taxable income to tax-exempt income.
15
See, e.g., Denman v. Slayton, 282 U.S. 514, 519, 51 S.Ct. 269, 270; Helvering v. Independent Life Ins. Co., 292 U.S. 371, 381, 54 S.Ct. 758, 760, 78 L.Ed. 1311; Schuylkill Trust Co. v. Pennsylvania, 296 U.S. 113, 119, 56 S.Ct. 31, 34, 80 L.Ed. 91; New Jersey Realty Title Ins. Co. v. Division of Tax Appeals, 338 U.S. 665, 674—675, 677, 70 S.Ct. 413, 418—419, 94 L.Ed. 439.
16
This is true insofar as Gehner rested on a doctrine of implied constitutional immunity. The tax there was a state ad valorem property tax said to be on federal bonds and then, as now, a federal statute insulated such bonds from state taxation. See 31 U.S.C. 73 Stat. 622, § 105(a), § 742 (1958 ed. Supp. V).
17
The statement of Stanford Rothschild, a representative of one of the life insurance companies objecting to the proposed pro rata disallowance of the reserve deduction in H.R. 4245, before the Senate Committee provides a clear exposition of this view:
'Life insurance companies have two kinds of gross investment income: On the one hand, there is the income which has to be set aside to cover actual expenses and the liabilities to the policyholders. On the other hand, there is free investment income, not needed for the operation of the company; this excess income is fully taxable.
'All tax laws dealing with life insurance companies have allowed deductions from income for required interest. Even the excise tax formulas have provided for such deductions. The basic reason for this deduction is that required interest cannot be construed to be true income or profit, just as the cost of goods sold by a merchant must be eliminated from his gross income.' Hearings on H.R. 4245 before the Senate Committee on Finance, 86th Cong., 1st Sess., 696—697.
Under this view of the reserve increment, we think this case is strikingly similar to Denman v. Slayton. On this theory the reserve increment is an accrued expense in the nature of interest on the funds obtained from policyholders for investment, and the denial of that part of the deduction which exempt income bears to total investment receipts represents disallowance of an expense attributable to the production of exempt income, which is precisely what Denman permits. It is argued, however, that the rule of Denman disallowing deduction of exempt interest is limited to 'but for' situations: Interest incurred on loans used to purchase exempt bonds may be disallowed only where there would have been no interest charge except for the purchase of exempt securities. It is by no means clear that this is not the case here, for there is a relationship between the amount of the reserve increment, representing interest on funds obtained from policyholders, and the amount of a company's investments, exempt or otherwise, unless it be assumed that a company does not sell policies and obtain funds for the purpose of investment. However this may be, we do not read Denman so narrowly. We think interest can be said to be incurred or continued as a cost of producing exempt income whenever a taxpayer borrows for the purpose of making investments and in fact invests funds in exempt securities.
There was no problem of allocating interest in Denman, but surely no one doubts that the case would not have been any different if the dealer there borrowed and purchased taxable securities with half the loan and used the other half to purchase exempt securities.
18
There is nothing to the argument that since the reserve obligation remains the same whether there is exempt income or not, no part of the obligation is fairly chargeable to exempt income. It could as well be argued that because the reserve requirement is the same whether there is taxable income or not, none of the reserve increment may be obtained by pre-empting taxable income. The fact is that the annual addition to reserve must be made up from investment income, whatever its source, and the company owes to its policyholders a share of the tax-exempt dollar fully as much and in the same sense that it owes a part of the taxable dollar.
| 1112
|
381 U.S. 139
85 S.Ct. 1401
14 L.Ed.2d 296
The UNITED STATES of America, Plaintiff,v.The STATE OF CALIFORNIA.
No. 5, Original.
Argued Dec. 7 and 8, 1964.
Decided May 17, 1965.
[Syllabus from pages 139-141 intentionally omitted]
Archibald Cox, Sol. Gen., for plaintiff.
Richard H. Keatinge, San Marino, Cal., for defendant.
George N. Hayes, Anchorage, Alaska, for State of Alaska, as amicus curiae, by special leave of Court.
Mr. Justice HARLAN delivered the opinion of the Court.
1
The present case requires us to determine the extent of submerged lands granted to the State of California by the Submerged Lands Act of 1953,1 and in particular to declare whether specified bodies of water on the California coast are 'inland waters' within the meaning of that Act. A substantial amount of background is necessary to place the issues in perspective.
I.
2
THE SETTING OF THE CASE.
3
This is a suit begun in 1945, brought by the United States against California to determine dominion over the submerged lands and mineral rights under the three-mile belt of sea off the coast of California. In 1947 the Court decreed:
4
'The United States of America is now, and has been at all times pertinent hereto, possessed of paramount rights in, and full dominion and power over, the lands, minerals and other things underlying the Pacific Ocean lying seaward of the ordinary low-water mark on the coast of California, and outside of the inland waters, extending seaward three nautical miles * * *. The State of California has no title thereto or property interest therein.' United States v. California, 332 U.S. 804, 805, 68 S.Ct. 20, 21, 92 L.Ed. 382, Order and Decree.
5
After the entry of this decree, the United States asked that the lands awarded to it be defined in greater detail in certain areas where there was substantial oil well activity, and which California asserted lay within inland waters. The Court appointed a Special Master,2 and directed him to consider seven specified segments of the California coast3 to determine the line of ordinary low water and the outer limit of inland waters. These segments included various bays, and, as the problem evolved, the so-called 'overall unit area' consisting of the waters inside a line encompassing the islands off the shore of southern California, some as far as 50 miles out.4 The Special Master's Report, generally favoring the position of the United States, was filed with this Court in November 1952, 344 U.S. 872, 73 S.Ct. 163, 97 L.Ed. 676. He adopted as his criteria for defining inland waters those applied by the United States in the conduct of its foreign affairs as of the date of the California decree, October 27, 1947—in particular, a rule that only a bay having a closing line across its mouth no more than 10 miles in length and enclosing a sufficient water area to satisfy the so-called Boggs formula5 would be inland water, with the qualification that a bay which had been historically considered inland water would so continue.6 Both parties noted their exceptions to the Report, but before any further action was taken, Congress enacted the Submerged Lands Act.
6
The Submerged Lands Act7 grants to the State title to and ownership of the lands beneath navigable waters within the boundaries of the respective States.' § 3(a). 'Boundaries' includes the seaward boundaries of a State 'as they existed at the time such State became a member of the Union, or as heretofore approved by the Congress,' but subject to the limitation that
7
'in no event shall the term 'boundaries' * * * be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean, or more than three marine leagues into the Gulf of Mexico.' § 2(b).
8
'Coast line' is then defined as the composite 'line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.' § 2(c). For States having no previously approved seaward boundaries the Act provides that '(a)ny State admitted subsequent to the formation of the Union which has not already done so may extend its seaward boundaries to a line three geographical miles distant from its coast line * * *.' § 4.
9
Thus the Act effectively grants each State on the Pacific coast all submerged lands shoreward of a line three geographical miles8 from its 'coast line', derivatively defined in terms of 'the seaward limit of inland waters.' 'Inland waters' is not defined by the Act.
10
In a later measure related to the Submerged Lands Act, Congress declared that the United States owned all submerged land in the continental shelf seaward of the lands granted to the States. Outer Continental Shelf Lands Act, 67 Stat. 462, 43 U.S.C. § 1331 et seq.
11
The passage of the Submerged Lands Act marked the beginning of a long halt in the proceedings in this case. Depth of California's coastal waters increases very rapidly, and as of May 22, 1953, the date of enactment, it was impractical to drill for oil except close to the shore. By granting to California the mineral rights in the three-mile belt, the Act vested in California all the interests that were then thought to be important, and no further action was taken on the Special Master's Report. That Report was neither adopted, modified, nor rejected by this Court, but was simply allowed to lie dormant. By 1963, however, drilling techniques had improved sufficiently to revitalize the importance of the demarcation line between state and federal submerged lands. The United States filed an amended complaint reviving the Special Master's Report and redescribing the issues as modified by the Submerged Lands Act; both the United States and California filed new exceptions to the Report, and the case is now ready for decision.
12
The basic contention of the United States is that the Act simply moved the line of demarcation out three miles from the line established by the California decree. Therefore, contends the United States, the Special Master's Report on the line of ordinary low water and the outer limit of inland waters as used in the California decree is just as relevant now as it was before Congress acted, and, with slight modifications, the line drawn by the Special Master should be taken as the 'coast line' for purposes of the Submerged Lands Act. California asserts that whereas the Special Master determined inland waters to be those which the United States would have claimed as such for purposes of international relations, the Submerged Lands Act used the term in an entirely different sense to mean those waters which the States historically considered to be inland—in California's case, those waters which the State considered to be inland at the time it entered the Union. Therefore, according to California, the line drawn in the Special Master's Report was determined under standards wholly foreign to the Submerged Lands Act.
13
The focal point of this case is the interpretation to be placed on 'inland waters' as used in the Act. Since the Act does not define the term, we look to the legislative history.
II.
14
LEGISLATIVE HISTORY REVEALS THAT CONGRESS MEANT TO LEAVE THE DEFINITION OF INLAND WATERS TO THE COURTS.
15
Two changes relevant for our purposes were made in the bill which became the Submerged Lands Act between the time it was sent to the Senate Committee on Interior and Insular Affairs and the time of its passage.
16
(1) As first written, the bill defined inland waters to include
17
'all estuaries, ports, harbors, bays, channels, straits, historic bays, and sounds, and all other bodies of water which join the open sea.'
18
This definition was removed by the Senate Committee.9
19
(2) The bill originally contained no limitation on the extent of historic boundaries that could be claimed. The provision limiting the extent of boundary claims to no more than three geographical miles from the coastline on the Atlantic and Pacific Oceans and three marine leagues on the Gulf of Mexico was added to the bill on the floor of the Senate in the late stages of the debates.10
20
Removal of the definition for inland waters and the addition of the three-mile limitation in the Pacific, when taken together, unmistakably show that California cannot prevail in its cntention that 'as used in the Act, Congress intended inland waters to identify those areas which the states always thought were inland waters.'11 By deleting the original definition of 'inland waters' Congress made plain its intent to leave the meaning of the term to be elaborated by the courts, independently of the Submerged Lands Act.
21
In response to substantial objections made in the hearings to the original bill's broad definition of inland waters on grounds that it would prejudice and limit the position which the United States could take in its future conduct of foreign affairs,12 Senator Cordon, the manager of the bill, recommended and obtained elimination of the definition. The Committee Report which he authored explained:
22
'The words 'which include all estuaries, ports, harbors, bays, channels, straits, historic bays, and sounds, and all other bodies of water which join the open sea' have been deleted from the reported bill because of the committee's belief that the question of what constitutes inland waters should be left where Congress finds it. The committee is convinced that the definition neither adds nor takes away anything a State may have now in the way of a coast and the lands underneath waters behind it.' S.Rep.No.133, 83d Cong., 1st Sess., 18, U.S.Code Cong. and Adm.News 1953, p. 1493.13
23
The committee's understanding that the measure 'neither adds nor takes away anything a State may have now in the way of a coast and the lands underneath waters behind it,' appears to be an acceptance of 'inland waters' as used in the California and prior Court opinions, whatever that usage might have been. Various different concepts of inland waters were asserted during the Senate Hearings, based on such elements as the depth of the water,14 the width of opening of a coastal indentation,15 the Boggs formula, and the common designation of bodies of water as bays, sounds, straits, etc.16 When it became clear that the question had highly technical aspects (see, e.g., n. 5, supra) and was one on which differences would arise, the Senate Committee adopted the expedient solution of leaving the matter just as it had found it, neither accepting nor rejecting any particular rule or formula.17 It intended to leave unaffected the judicial view of inland waters and the judicial responsibility for particularizing it.
24
Reference to Senator Cordon's request to the Senate Committee for deletion of the objectionable clause confirms that understanding. He said:
25
'The matter of inland waters is one that has been defined time and time again by the courts, not, I believe, in any one all-inclusive definition, but it was felt (by those who objected to the definition during the hearings) that the use of these words were (sic) an attempted legislative definition of the term 'inland waters,' and it was inadvisable for us in this bill, which is a transfer of title, to attempt to make law in the other field of what is or is not inland water.
26
'The use of the language, it was felt, would probably raise questions that have not been raised, whereas the present definitions are in the decisions and available to the court.'
27
'Senator MALONE. The inland waters had a special master for that particular job, did they not, and that is now under consideration, that is, his report is under consideration by the Supreme Court?
28
'Senator CORDON. With respect to California, and a portion of California coast; yes. Senate Hearings 1304—1305.
29
Shortly thereafter there follows a virtually conclusive statement:
30
'Senator CORDON. It was not the chairman's view that we were attempting to draw a line delimiting inland waters, but that we were using a term that is well known in the law and is defined by the Court in the California case, for instance, and in the Louisiana case, I assume. That line might still be defined, even though the area may not now have the same legal status as it had before.'18 Id., at 1376. (Emphasis added.)
31
California fastens on a statement made in the Committee Report with regard to the eliminated definition:
32
'The elimination of the language, in the committee's opinion, is consistent with the philosophy of the Holland bill to place the States in the position in which both they and the Federal Government thought they were for more than a century and a half, and not to create any situations with respect thereto.' S.Rep.No. 133, 83d Cong., 1st Sess., 18.
33
From this California reasons that 'inland waters' must have been intended to encompass all waters which the States 'thought' were inland waters, for that is the only way in which the Act can now be interpreted to effectuate fully its supposed 'philosophy' of granting to the States all submerged lands within their historic boundaries.
34
If such a view of the bill's purpose is accepted as of the time that the Committee Report was written, there is, nonetheless, no inconsistency whatsoever between that purpose and a legislative intent to leave the definition of inland waters to the courts without restriction; at that time the limitation on boundary claims had not yet been incorporated into the Act; thus as the Act was then written, States could have claimed all submerged lands within their historic boundaries, no matter how 'inland waters' was defined. The definition would have affected only those States which, not having adequate pre-existing seaward boundaries, chose to extend their boundaries three miles from the coastline pursuant to § 4 of the Act. As stated by Senator Cordon during the Hearings,
35
'this bill has two approaches to a determination of the area of its application. The first approach is that of the boundaries of the States when they came into the Union; second, an election to any State that has not done so to extend its boundary 3 geographical miles from its present coastline, as that term is described in the present tense in the bill.' Senate Hearings 1374.
36
Only with the adoption of the three-mile limitation on the Atlantic and Pacific Oceans and the three-league limitation in the Gulf of Mexico did the interpetations of historic boundaries and inland waters become operationally related, and any inconsistency thus created between the limitation and the prior philosophy of the Act shows only that, to the extent the limitation would come into play, the philosophy was modified.19 This amendment was one of very few made to the bill as reported by the Senate Committee, and came as the result of continuous criticism throughout the course of the debates that the extent of the grant was indefinite,20 and that coastal States could engage in a 'claiming race'21 for submerged lands. California points to language stating that adoption of the limitation worked no significant change in the bill. 99 Cong.Rec. 4114—4116 (remarks of Senator Holland). But such statements simply reflect the understanding of the major supporters of the bill that no States other than Texas and Florida (on its Gulf side) had provable claims beyond three miles, and that the claims of those two States did not go beyond three leagues.22 If such were the case, the limitation could indeed be thought to have no effect, for no state boundaries would run afoul of it, and the vast grant of submerged lands up to three miles along the length of the Atlantic and Pacific coasts, and three leagues, subject to historical proof, in the Gulf of Mexico, would not be impaired. Senator Holland, the author of the bill, proposed the limiting boundary amendment to meet the fears of those Senators who had criticized the indefiniteness of the bill. He explained:
37
'* * * I think the amendment has very little effect. But I am perfectly willing to meet the suggestions of my friends, some of whom have been opponents, and some of whom have been supporters of the joint resolution, to the effect that they would like to have the language more clearly spelled out than it was in the original measure, to the effect that there is no intention whatsoever to grant boundaries beyond 3 geographical miles in either the Atlantic or the Pacific, and that this Congress knows of no possible situation under which greater boundaries are claimed or could be granted in the Gulf of Mexico than 3 leagues; and, in that case, this Congress knows, although this amendment does not indicate it, that there are but 2 States affected by that particular situation.' 99 Cong.Rec. 4116.
38
Senator Holland was aware of California's expansive inland water claims, but thought them altogether untenable.
39
'Mr. HOLLAND. My understanding is that California has no provable case beyond 3 miles from its mainland; and that as to the islands, its provable case would be 3 miles around each of the islands. I so stated in the hearings on this matter.
40
'Mr. DOUGLAS. That is a consummation devoutly to be desired, but I am not at all satisfied that that it what the Senator's joint resolution would accomplish, because the coastline is not fully and clearly defined.
41
'Mr. HOLLAND. Under the joint resolution, no such contention could be maintained.
42
'Mr. DOUGLAS. Is the Senator certain of that?
43
'Mr. HOLLAND. That is what I believe, and that is what every legal authority I have consulted on the subject believes. Incidentally, the only reason why there was some thought to the contrary was some wording in the original joint resolution, which has been omitted, which would have made the outer boundary of inland waters farther out than that which is now provided by the joint resolution. The joint resolution simply continues the outer boundary of inland waters pursuant to the decisions of the Supreme Court already made. * * *
44
'The Senator from Florida knows full well that if the United States Supreme Court should change its mind as to what constituted the outer limits of inland waters, and should change it to a sufficient degree, it could open up, not only under this joint resolution, but of its own initiative, questions which would reach out much farther than anything we have been talking about here.
45
'The Senator from Florida believes that the laws, as announced over and over and over again by the Supreme Court, as to the delimitation of inland waters, are sufficiently fixed, definite, and certain so that it would require a complete, cataclysmic change of the Supreme Court's philosophy in that field to afford any hope for an extension of the boundaries of the good State of California so that they would go out beyond the islands as to all areas contained within an outer line. There is no way for us to foreclose the Supreme Court from changing its mind. It might change its mind with reference to inland waters and their delimitation. But failing such change, the Senator from Florida cannot see how, under this joint resolution, there could possibly be any serious question affecting California or any other State.' 99 Cong.Rec. 2756—2757.
46
Senator Holland did not wish to foreclose California from arguing (as it has done both here and before the Special Master) that its waters are inland within the appropriate judicial definition, but it was his opinion that no such definition would permit California's claim to all waters shoreward of their remote islands to prevail. Congress could have defined inland waters as it wished for the purely domestic purposes of the Submerged Lands Act. See United States v. Louisiana, 363 U.S. 1, 30—36, 80 S.Ct. 961, 979—982, 4 L.Ed.2d 1025. It could have adopted California's theory, or the Special Master's theory, or any other. Instead, it chose to leave the definition of inland waters where it found it in the Court's hands. The Act does not reveal a particular intent that courts should broadly interpret 'inland waters' so as to restore California to its historic expectations regardless of what its expectations might be.23 Indeed, if the Court is to draw any inference from the intent and structure of the Act as to how inland waters should be defined, the most plausible inference would be that Congress, in adopting the three-mile limitation, must have intended some base line to be used other than one dependent upon each State's subjective concept of its inland waters, for such a limitation would prove to have been none at all, as full acceptance of California's claims in the present case would show.
III.
47
THE MEANING OF 'INLAND WATERS' IN THE SUBMERGED LANDS ACT SHOULD CONFORM TO THE CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE.
48
We turn, then, to determining the judicial definition of 'inland waters.' It immediately appears that the bulk of cases cited by Congressmen during debates on the Submerged Lands Act for the proposition that inland waters have 'been defined time and time again by the courts' deal with interior waters such as lakes and rivers, and provide no assistance in classifying bodies of water which join the open sea.24 In this latter context no prior case in this Court has ever precisely defined the term. The 1947 California opinion clearly indicated that 'inland waters' was to have an international content since the outer limits of inland waters would determine the Country's international coastline, but the Court did not particularize the definition.25 It was that task which subsequently led to the appointment of the Special Master.
49
The Special Master found that there was no internationally accepted definition for inland waters and decided, in those circumstances, that it was the position which the United States took on the question in the conduct of its foreign affairs which should be controlling. He considered the relevant date on which to determine our foreign policy position to be the date of the California decree, October 27, 1947. He therefore rejected the assertion that letters from the State Department written in 1951 and 195226 declaring the then present policy of the United States were conclusive on the question before him. At the same time that decision required the Special Master to consider a great many foreign policy materials dating back to 1793 in an attempt to discern a consistent thread of United States policy on the definition of inland waters. He ultimately decided that as of 1947 the United States had taken the position that a bay was inland water only if a closing line could be drawn across its mouth less than 10 miles long enclosing a sufficient water area to satisfy the Boggs formula.27
50
Since the filing of the Special Master's Report the policy of the United States has changed significantly. Indeed it may now be said that there is a settled international rule defining inland waters. On March 24, 1961, the United States ratified the Convention on the Territorial Sea and the Contiguous Zone (T.I.A.S. No. 5639) and on September 10, 1964, when the requisite number of nations had ratified it, the Convention went into force. For nations which do not use a straight-base-line method28 to define inland waters (see United Kingdom v. Norway, (1951) I.C.J.Rep. 116), the Convention permits a 24-mile maximum closing line for bays and a 'semicircle' test for testing the sufficiency of the water area enclosed. The semicircle test requires that a bay must comprise at least as much water area within its closing line as would be contained in a semicircle with a diameter equal to the length of the closing line. Unquestionably the 24-mile closing line together with the semicircle test now represents the position of the United States.29
51
The United States contends that we must ignore the Convention on the Territorial Sea and the Contiguous Zone in performing our duty of giving content to 'inland waters' as used in the Submerged Lands Act, and must restrict ourselves to determining what our decision would have been had the question been presented to us for decision on May 22, 1953, the date of enactment. At that time there was no international accord on any definition of inland waters, and the best evidence (although strenuously contested by California) of the position of the United States was the letters of the State Department which the Special Master refused to treat as conclusive.
52
We do not think that the Submerged Lands Act has so restricted us. Congress, in passing the Act, left the responsibility for defining inland waters to this Court.30 We think that it did not tie our hands at the same time. Had Congress wished us simply to rubber-stamp the statements of the State Department as to its policy in 1953, it could readily have done so itself.31 It is our opinion that we best fill our responsibility of giving content to the words which Congress employed by adopting the best and most workable definitions available. The Convention on the Territorial Sea and the Contiguous Zone, approved by the Senate and ratified by the President,32 provides such definitions. We adopt them for purposes of the Submerged Lands Act. This establishes a single coastline for both the administration of the Submerged Lands Act and the conduct of our future international relations (barring an unexpected change in the rules established by the Convention). Furthermore the comprehensiveness of the Convention provides answers to many of the lesser problems related to coastlines which, absent the Convention, would be most troublesome.33
53
California argues, alternatively to its claim that 'inland waters' embraces all ocean areas lying within a State's historic seaward boundaries, that if Congress intended 'inland waters' to be judicially defined in accordance with international usage, such definition should possess an ambulatory quality so as to encompass future changes in international law or practice. Thus, if 10 years from now the definitions of the Convention were amended, California would say that the extent of the Submerged Lands Act grant would automatically shift, at least if the effect of such amendment were to enlarge the extent of submerged lands available to the States. We reject this open-ended view of the Act for several reasons. Before today's decision no one could say with assurance where lay the line of inland waters as contemplated by the Act; hence there could have been no tenable reliance on any particular line. After today that situation will have changed. Expectations will be established and reliance placed on the line we define. Allowing future shifts of international undertanding respecting inland waters to alter the extent of the Submerged Lands Act grant would substantially undercut the definiteness of expectation which should attend it. Moreover, such a view might unduly inhibit the United States in the conduct of its foreign relations by making its ownership of submerged lands vis-a -vis the States continually dependent upon the position it takes with foreign nations. 'Freezing' the meaning of 'inland waters' in terms of the Convention definition largely avoids this, and also serves to fulfill the requirements of definiteness and stability which should attend any congressional grant of property rights belonging to the United States.
IV.
54
SUBSIDIARY ISSUES.
55
Once it is decided that the definitions of the Convention on the Territorial Sea and the Contiguous Zone apply, many of the subsidiary issues before us fall into place.
56
1. Straight Base Lines.—California argues that because the Convention permits a nation to use the straight-base-line method for determining its seaward boundaries if its 'coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity,' California is therefore free to use such boundary lines across the openings of its bays and around its islands.34 We agree with the United States that the Convention recognizes the validity of straight base lines used by other countries, Norway for instance, and would permit the United States to use such base lines if it chose, but that California may not use such base lines to extend our international boundaries beyond their traditional international limits against the expressed opposition of the United States. The national responsibility for conducting our international relations obviously must be accommodated with the legitimate interests of the States in the territory over which they are sovereign. Thus a contraction of a State's recognized territory imposed by the Federal Government in the name of foreign policy would be highly questionable. But an extension of state sovereignty to an international area by claiming it as inland water would necessarily also extend national sovereignty, and unless the Federal Government's responsibility for questions of external sovereignty is hollow, it must have the power to prevent States from so enlarging themselves. We conclude that the choice under the Convention to use the straight-base-line method for determining inland waters claimed against other nations is one that rests with the Federal Government, and not with the individual States.
57
California relies upon Manchester v. Com. of Massachusetts, 139 U.S. 240, 11 S.Ct. 559, 35 L.Ed. 159, for the proposition that a State may draw its boundaries as it pleases within limits recognized by the law of nations regardless of the position taken by the United States. Although some dicta in the came may be read to support that view, we do not so interpret the opinion. The case involved neither an expansion of our traditional international boundary nor opposition by the United States to the position taken by the State.
58
2. Twenty-four-mile Closing Rule.—The Convention recognizes, and it is the present United States position,35 that a 24-mile closing rule together with the semicircle test should be used for classifying boys in the United States.36 Applying these tests to the segments of California's coast here in dispute, it appears that Monterey Bay is inland water and that none of the other coastal segments in dispute37 fulfill these aspects of the Convention test. We so hold.
59
California asserts that the Santa Barbara Channel may be considered a 'fictitious bay' because the openings at both ends of the channel and between the islands are each less than 24 miles.38 The United States argues that the channel is no bay at all; that it is a strait which serves as a useful route of communication between two areas of open sea and as such may not be classified as inland waters.39
60
By way of analogy California directs our attention to the Breton and Chandleur Sounds off Louisiana which the United States claims as inland waters, United States v. Louisiana, 363 U.S. 1, 66—67, n. 108, 80 S.Ct. 961, 997—998, 4 L.Ed.2d 1025. Each of these analogies only serves to point up the validity of the United States' argument that the Santa Barbara Channel should not be treated as a bay. The Breton Sound is a cul de sac. The Chandleur Sound, if considered separately from the Breton Sound which it joins, leads only to the Breton Sound. Neither is used as a route of passage between two areas of open sea. In fact both are so shallow as to not be readily navigable.40 California also points to the Strait of Juan de Fuca. That strait is not claimed by the United States as a 'fictitious bay' and it does not connect two areas of open sea.
61
Evidence submitted to the Special Master on the extent of international use made of the Santa Barbara Channel was sparse. What evidence there was indicated the usefulness of the route, but did not specify whether the ships so using it were domestic or international.41 California now regards the point as important, for under international law as expressed in the Corfu Channel Case, (1949) I.C.J. Rep. 4, the International Court of Justice held that a country could not claim a strait as inland water if, in its natural state, it served as a useful route for international passage. We do not consider the point of controlling importance. The United States has not in the past claimed the Santa Barbara Channel as inland water and opposes any such claim now. The channel has not been regarded as a bay either historically or geographically. In these circumstances, as with the drawing of straight base lines, we hold that if the United States does not choose to employ the concept of a 'fictitious bay' in order to extend our international boundaries around the islands framing Santa Barbara Channel, it cannot be forced to do so by California. It is, therefore, unnecessary to reinstitute proceedings before a master to determine the factual question of whether the passageway is internationally useful.
62
3. Historic Inland Waters.—By the terms of the Convention the 24-mile closing rule does not apply to so-called 'historic' bays.42 Essentially these are bays over which a coastal nation has traditionally asserted and maintained dominion with the acquiescence of foreign nations.43 California claims that virtually all the waters here in dispute are historic inland waters as the term is internationally understood. It relies primarily on an interpretation of its State Constitution to the effect that the state boundaries run three miles outside the islands and bays,44 plus several court decisions which so interpret it as applied to Monterey, Santa Monica, and San Pedro Bays.45 The United States counters that, as with straight base lines, California can maintain no claim to historic inland waters unless the claim is endorsed by the United States. The Special Master found it unnecessary to decide that question because, on the evidence before him, he concluded that California had not traditionally exercised dominion over any of the claimed waters.
63
Since the 24-mile rule includes Monterey Bay, we do not consider it here. As to Santa Monica Bay, San Pedro Bay, and the other water areas in dispute, we agree with the Special Master that they are not historic inland waters of the United States.
64
California contends that two studies of the criteria for determining historic waters have been made since the Special Master filed his report46 which show that he applied the wrong standards, thus vitiating his conclusions. In particular it is said that the Special Master erroneously thought the concept of historic waters to be an exception to the general rule of inland waters requiring a rigorous standard of proof. We find no substantial indication of this in his report.
65
On the evidence, California's claim that its constitution set a boundary beyond the bays and islands is arguable, but many of the state statutes drawing county boundaries which supposedly run to the limit of the state boundaries cut the other way by indicating a line only three miles from shore.47 Furthermore, a legislative declaration of jurisdiction without evidence of further active and continuous assertion of dominion over the waters is not sufficient to establish the claim.48 There is a federal district court opinion, United States v. Carrillo, 13 F.Supp. 121 (1935), which dismissed federal criminal charges for an offense which took place more than three miles from the shore of San Pedro Bay on the ground that the bay was within California, not federal, jurisdiction; but it is difficult to see this dismissal as an assertion of dominion. In Santa Monica Bay, California did successfully prosecute a criminal offense which took place more than three miles from the shore, People v. Stralla, 14 Cal.2d 617, 96 P.2d 941 (1939). However, the decision stands as the only assertion of criminal jurisdiction of which we have been made aware.49
66
The United States disclaims that any of the disputed areas are historic inland waters. We are reluctant to hold that such a disclaimer would be decisive in all circumstances, for a case might arise in which the historic evidence was clear beyond doubt. But in the case before us, with its questionable evidence of continuous and exclusive assertions of dominion over the disputed waters, we think the disclaimer decisive.
67
4. Harbors and Roadsteads.—The parties disagree as to whether inland waters should encompass anchorages beyond the outer harborworks of harbors. The Convention on the Territorial Sea and the Contiguous Zone (Art. 8) states without qualification that 'the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast.' We take that to be the line incorporated in the Submerged Lands Act.
68
As to open roadsteads used for loading, unloading and anchoring ships, the Convention (Art. 9) provides that such areas should be included in the territorial sea, and, by implication, that they are not to be considered inland waters. We adopt that interpretation.
69
5. The Line of Ordinary Low Water.—Along the California coast there are two low tides each day, one of which is generally lower than the other. The assertion of the United States, with which the Special Master agreed, is that the line of ordinary low water is obtained by taking the average of all the low tides. California would average only the lower low tides.
70
We hold that California's position represents the better view of the matter. The Submerged Lands Act defines coastline in terms of the 'line of ordinary low water.' The Convention (Art. 3) uses 'the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State' (i.e., the United States). We interpret the two lines thus indicated to conform, and on the official United States coastal charts of the Pacific Coast prepared by the United States Coast and Geodetic Survey, it is the lower low water line which is marked.
71
6. Artificial Accretions.—When this case was before the Special Master, the United States contended that it owned all mineral rights to lands outside inland waters which were submerged at the date California entered the Union, even though since enclosed or reclaimed by means of artificial structures. The Special Master ruled that lands so enclosed or filled belonged to California because such artificial changes were clearly recognized by international law to change the coastline. Furthermore, the Special Master recognized that the United States, through its control over navigable waters, had power to protect its interests from encroachment by unwarranted artificial structures, and that the effect of any future changes could thus be the subject of agreement between the parties.
72
The United States now contends that whereas the Submerged Lands Act recognized and confirmed state title within all artificial as well as natural modifications to the shoreline prior to the passage of the Act, Congress meant to recognize only natural modifications after the date of the Act. The Act, however, makes no specific reference to artificial accretions, and nowhere in the legislative history did anyone focus on the question.50 The United States points by analogy to the rule of property law that artificial fill belongs to the owner of the submerged land onto which it is deposited. Marine R. & Coal Co. v. United States, 257 U.S. 47, 65, 42 S.Ct. 32, 34, 66 L.Ed. 124. We think the situation different when a State extends its land domain by pushing back the sea; in that case its sovereignty should extend to the new land, as was generally thought to be the case prior to the 1947 California opinion.51 The considerations which led us to reject the possibility of wholesale changes in the location of the line of inland waters caused by future changes in international Law, supra, pp. 166—167, do not apply with force to the relatively slight and sporadic changes which can be brought about artificially. Arguments based on the inequity to the United States of allowing California to effect changes in the boundary between federal and state submerged lands by making future artificial changes in the coastline are met, as the Special Master pointed out, by the ability of the United States to protect itself through its power over navigable waters.
73
With the modifications set out in this opinion we approve the recommendations of the Special Master. The parties, or either of them, may, before September 1, 1965, submit a proposed decree to carry this opinion into effect, failing which the Court will prepare and enter an appropriate decree at the next Term of Court.
74
It is so ordered.
75
Recommendations of Special Master approved as modified.
76
THE CHIEF JUSTICE and Mr. Justice CLARK took no part in the consideration or decision of this case.
77
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.
78
In 1947 in United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889, this Court held that the United States had paramount rights in the waters and submerged lands lying adjacent to its coastlines. A Special Master was appointed to apply the rule of that case to segments of submerged land off the mainland of California. In 1953 Congress, believing that this Court's decision unfairly denied to the coastal States submerged lands within their historic boundaries, passed the Submerged Lands Act to upset that decision and restore to the States what Congress believed had historically and rightfully been theirs. The Court today decides this case on the basis of the 13-year-old Master's Report which attempted to carry out the 1947 California opinion and decree. Instead of relying on that 1952 Report, which was based on a decision which Congress in 1953 forcefully and emphatically rejected in the Submerged Lands Act, I would refer this case to a Master for new hearings, findings and recommendations to be made in light of the Submerged Lands Act, the controlling statutory law as it now exists.
I.
79
The issue in this case is whether California or the United States is the owner of seven segments of land lying under the sea off the mainland of California.1 Most of the segments lie under or outside what are called bays in popular usage, and as to them the question is whether and how much of the land underlying them and the marginal sea beyond belongs to California.2 One large segment, which also includes two of the bays in issue, touches the sea opposite a chain of islands which lie up to approximately 50 miles off the mainland, separated by the Santa Barbara Channel, the San Pedro Channel, and the Gulf of Santa Catalina.3 As to that segment, California claims ownership of the sea bottom under the water separating the islands from the mainland and three miles beyond the islands, while the United States argues that California owns only a strip three geographic miles wide around each island and one extending three geographic miles from the mainland shore, with the intervening submerged land all belonging to the Federal Government. In order to understand the present contentions of the parties, it is necessary to go back to the years before 1945, the year in which the dispute of which the present controversy is an aftermath came before this Court.
80
For many decades some of the States bordering on the sea had claimed dominion over water and submerged lands lying off their shores. Their claims usually were stated as extending into the open sea a distance of three statute miles, three geographic miles, or three marine leagues from their 'coast lines.'4 But 'coast line,' as the term was used in many such claims, and as it is used in modern geographic descriptions, does not mean simply the low-water mark of the mainland shore; rather, it means a legally recognized line which follows the low-water mark of the shore where the shore is relatively straight and facing open sea, and which at other points follows the recognized outside limits of 'inland waters,' which flow into the sea or form indentations in the land. Such 'inland waters' may include certain estuaries, bays and harbors, and waters between a mainland and offshore islands.
81
For many years the Federal Government raised no objection to the various States' claims that their boundaries, including claims to the marginal sea, extended outward for various distances into the sea. However, by the 1930's it became apparent that the submerged lands off the shores of certain States contained rich and valuable oil reserves and other natural resources. In the late 1930's it was for the first time asserted that in spite of the States' historic claims the United States, and not the respective coastal States, was the owner of all submerged lands lying both within and without the three-mile limits, except for land under 'inland waters.'5 California and other States claimed that they were the owners of all submerged lands within their historic boundaries dating back to their respective admissions to the Union, including of course both historic inland waters and a three-mile or three-league strip of marginal sea beyond. To settle this controversy the United States in 1945 brought in this Court the action against California of which today's decision is an aftermath, alleging that the United States was 'the owner in fee simple of, or possessed of paramount rights in and powers over, the lands, minerals and other things of value underlying the Pacific Ocean, lying seaward of the ordinary low water mark on the coast of California and outside of the inland waters of the State, extending seaward three nautical miles * * *.' California objected immediately that the complaint was vague because the Government did not make clear how broadly or narrowly it defined 'inland waters.' California also answered that its historic boundaries as set out in its constitution in 1849, approved when it was admitted to the Union, included not only a strip out to three miles from its coast, but also 'all the islands, harbors, and bays along and adjacent to the Pacific coast,' and that therefore 'all lands under all navigable waters within the boundaries of the State' belonged to it. This Court then held in 1947 in United States v. California, 332 U.S. 19, 67 S.Ct. 1658, that the United States and not California had paramount rights in all the waters and submerged lands within the three-mile belt of marginal sea 'outside of the inland waters.' 332 U.S. 804, 805, 68 S.Ct. 20, 21, 92 L.Ed. 382. See also United States v. Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216; United States v. Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221. As for the problem of deciding what were inland waters and what were not, and of drawing an exact demarcation between the inland waters and a three-mile strip of marginal sea, this Court said that 'there is no reason why, after determining in general who owns the three-mile belt here involved, the Court might not later, if necessary, have more detailed hearings in order to determine with greater definiteness particular segments of the boundary.' 332 U.S., at 26, 67 S.Ct., at 1662.
82
It was not long before such hearings did become necessary, for the United States and California found themselves in sharp disagreement as to what the term 'inland waters' meant when applied to specific segments of the California coast. Both parties assumed at that time long before the Submerged Lands Act was passed, that the term was to be given a content derived from the usage of international law and the United States' foreign relations, since the California decision in upholding the claim of the United States to land under the three-mile belt of marginal sea had relied on the necessity of federal protection and control of the territorial seas as an incident of national sovereignty. But the doctrines of international law were so confused and contradictory as to exactly what measurements a bay must have to be inland water, and under what conditions a channel between islands and the mainland was inland water, that both sides were able to find precedents supporting them. This Court therefore submitted the case to a Special Master to make findings of fact and recommendations of law as to whether each of seven segments of submerged land off the mainland of California, the same seven now in dispute, should be treated as 'inland waters' within the meaning of the California opinion and decree, and therefore the property of the State.6 342 U.S. 891, 72 S.Ct. 198, 96 L.Ed. 668. On October 14, 1952, the Master filed his Report, 344 U.S. 872, 73 S.Ct. 163, 97 L.Ed. 676, in which he said he assumed that the test of whether the land in dispute belonged to California depended on whether it was inland water 'by (1) any customary, generally recognized rule of international Law * * * or by (2) effective assertion by the United States on its own behalf in its international relations.' He thus considered any claim based on the historic boundaries of the State as totally irrelevant, as having been rejected in this Court's 1947 opinion, and he ruled in substance that the United States was the owner of the submerged lands in question to the extent it claimed. Whether the test he used correctly interpreted the opinion need not concern us at this point. California of course filed exceptions, as did the United States. Then in 1953 Congress entered the picture by passing the Submerged Lands Act, and for more than 10 years, during which neither of the parties took any further steps in this Court and the Master's Report lay dormant, it appeared that the Act of Congress had determined the dispute.
83
The Submerged Lands Act of 19537 gave to the coastal States 'title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters * * *.'8 It defined 'lands beneath navigable waters' as all submerged land lying within three geographic miles seaward of the 'coast line' of the State,9 which was in turn stated to be the low-water mark where the mainland was in direct contact with the open sea, and elsewhere the seaward limit of the 'inland waters.'10 The Act said, in language of extreme importance to the resolution of the present dispute at the present time, that each State was to have title to submerged lands 'to the boundary line of each such State'11 with the term 'boundaries' meaning 'the seaward boundaries of a State * * * as they existed at the time such State became a member of the Union, or as heretofore approved by the Congress,'12 up to a limit of three geographic miles from the coastline in the Atlantic and Pacific Oceans, and three leagues from the coastline in the Gulf of Mexico.13 Thus each State was given title to the submerged lands off its shores out as far as its boundaries at the time the State entered the Union, which were stated not to go more than three miles (or leagues) beyond its 'coast line.' The 'coast line' was the outer limit of its 'inland waters.' The basic question here is whether the State's 'coast line' as the term is used in the Act is to be determined by looking at the State's historic boundaries when it entered the Union, or by the standard used by the Master in carrying out the California decree.
84
For 10 years after the Act was passed transferring title to these submerged lands to the States, no further action in the case pending in this Court was taken by either the United States or California.14 California's original claim that these bays and channels were inland waters within the meaning of this Court's decree had ceased to be so important, since the States had been given title to all the submerged lands out to their historic boundaries, including recognition of their claims to three miles or leagues of the marginal sea. After 10 years had passed, however, exploitation of undersea oil resources had become possible in deep water at great distances from the mainland, and the United States raised this present dispute with California concerning where the outer limit of the submerged land given the State by the Submerged Lands Act lay. The United States contends that this depends on the location of the 'coast line' since the State's added rights extended three miles from the 'coast line,' and that the location of the 'coast line' depends in turn on the location of the seaward edge of the 'inland waters,' which the United States argues should be measured according to the definition of 'inland waters' used by the Master in his hearings in the California case; the United States further argues that the report of the Master settled the case, and that the subsequent passage of the Submerged Lands Act had no effect on the correctness of the standard he used. California replies that since the stated purpose of the Act was to restore the States' claims to the submerged lands within their historic boundaries which included all waters within the States' boundaries as inland waters and three miles beyond into the territorial sea, the 'coast line' or seaward edge of the 'inland waters' was to be defined in terms of what a State had historically claimed was its coastline, the line from which it had measured its boundary, by its three-mile claim to the marginal sea. In other words, the United States proposes that in measuring California's submerged lands even under the Submerged Lands Act this Court should start with a line of internationally defined 'inland waters' as applied by the Master in carrying out the decree in the California case, and measure three miles out. California argues that since the effect of the California case was rejected by the Submerged Lands Act, this Court should look only to the Submerged Lands Act for the governing law and in defining the State's boundary should start with the coastline as historically recognized when the State was admitted to the Union from which the State measured its three-mile claim of marginal sea, and measure three miles outward from that historic coastline, thus restoring the State's historic boundaries. I think that the language and purpose of the Submerged Lands Act of 1953 show that California is right.
II.
85
This Court's 1947 holding precipitated one of the most hotly contested political issues of the post-war decade. Critics of the decision said that it had come as a complete surprise and had effectively taken away from the coastal States what they and others had thought from the time they entered the Union and before belonged to them. In 1952 a resolution passed both houses of Congress designed to 'restore' to the States the submerged lands which they had thought they owned before the California decision.15 Many opposed this bill as a 'give away' of the federal public domain, and President Truman prevented the bill's passage by vetoing it.16 Even in so doing, however, he recognized frankly that 'Even so careful and zealous a guardian of the public interest as the late Secretary of the Interior, Harold Ickes, at first assumed that the undersea lands were owned by the States.'17
86
The controversy over whether to upset the Federal Government's title which this Court had declared in the 1947 decision continued, however, and on January 9, 1953, Senator Holland of Florida on behalf of himself and 39 other Senators introduced a bill, Senate Joint Resolution 13,18 which was identical with the bill which had passed the previous year and which, with various amendments, passed both houses of Congress, was signed by President Eisenhower, and became law as the Submerged Lands Act of 1953. The stated purpose of the law as enacted was
87
'To confirm and establish the titles of the States to lands beneath navigable waters within State boundaries and to the natural resources within such lands and waters * * * and to confirm the jurisdiction and control of the United States over the natural resources of the seabed of the Continental Shelf seaward of State boundaries.'19
88
As the first witness to testify at the Senate committee hearings on his bill, Senator Holland said that
89
'the general purpose of Senate Joint Resolution 13 is to recognize, confirm, establish, and vest in the several States and this means all 48 of them—the submerged lands and the natural resources therein within their respective boundaries, subject to the exercise of all of the powers or regulation of the Federal Government for the purpose of commerce, navigation, national defense, and international affairs, none of which Federal powers include any property rights. This joint resolution will confirm to the maritime States—of which there are 20—the rights which they had respectively enjoyed since the founding of our Nation and up to the date of the decision in the California case, in their offshore lands and waters which lie within their constitutional boundaries.'20
90
Its object, he said, was 'restoring to the States their plenary rights, property, jurisdiction, and control which they exercised without question for 150 years over the areas lying within State boundaries.'21 It dealt only, he said, with the area within 'the States' historic or constitutional boundaries.'22 Those who testified in favor of the bill stated their objective the same way. Thus Secretary of the Interior McKay said:
91
'I do believe that the national interest would be best served by restoring to the various States the coastal offshore lands to the limits of the line marked by the historical boundaries of each of the respective States.'23
92
There can be no doubt, I believe, and I do not understand the Court to question, that, as proposed to the Senate Committee on Interior and Insular Affairs by Senator Holland and others, the bill which became the Submerged Lands Act unquestionably was intended to give the States title to all the offshore lands going out at least as far as the respective States' historic boundaries. A brief filed in this Court in another case shows that in the reported deliberations on the bill the term 'historic State boundaries' was used 813 times, 'original boundaries' 121 times, and 'traditional' boundaries 114 times.24 Since I take it that the Court concedes that this was the original purpose, see ante, pp. 153—154, I shall not bother to set forth all the statements of proponents of the bill at the Senate hearings, as well as at the House hearings, which stated flatly that this was its purpose.
III.
93
We start then from the conceded fact that the bill as originally introduced gave California title to all the submerged lands off its shore out to its historic boundaries, whatever they might prove to be. The Court, however, pins its case for denying California those historic boundaries on what it calls two 'relevant,' indeed fundamental, changes, ante, p. 150, made in the bill prior to its passage, which the Court says show that the bill's sponsors suddenly altered their intent and decided instead of restoring to California and other States mineral rights within their historic boundaries, to limit them to a three-mile or three-league strip of marginal waters along 'coast lines' which were to be restrictively defined according to current policies of international relations adhered to by the State Department. A study of the legislative history convinces me that in making the two changes on which the Court relies, the Senators intended in no way to alter the purpose of the original Holland bill to restore to the States all the waters and submerged lands within their historic constitutional boundaries. They expressly, vigorously and repeatedly avowed that the original purpose was unchanged.
94
A. THE REMOVAL OF THE DEFINITION OF 'INLAND WATERS.'
95
As originally drafted, § 2 of the Holland bill defined 'inland waters,' which extended to the 'coast line,' as including
96
'all estuaries, ports, harbors, bays, channels, straits, historic bays, and sounds, and all other bodies of water which join the open sea.'25
97
This definition would of course unquestionably give California title to submerged lands lying under all its historically recognized bays and straits as part of California's 'inland waters,' quite apart from the fact that they might also lie within California's historic boundary of inland waters plus marginal sea. The Deputy Legal Adviser of the State Department testified that such a legislative definition of inland waters, even though limited to the purpose of the bill of affecting property rights between the United States and the States, 'a purely domestic matter,'26 might possibly embarrass the State Department in its foreign relations if the Department asserted a different definition of the words 'inland waters' in its relations with foreign nations.27 The Attorney General warned that to attempt to define the coastline in a few words might increase rather than diminish litigation.28 As a result, Senator Cordon, the Acting Chairman of the Committee, at the conclusion of the hearings quoted the language defining 'inland waters' for purposes of the Act and said:
98
'That language was objectionable to the State Department and to the Department of Justice. That isn't, in itself, in my opinion, reason to strike it, but I am of the opinion that the objections were sound. The matter of inland waters is one that has been defined time and time again by the courts, not, I believe, in any one all-inclusive definition, but it was felt that the use of these words were an attempted legislative definition of the term 'inland waters,' and it was inadvisable for us in this bill, which is a transfer of title, to attempt to make law in the other field of what is or is not inland water.'29
99
At another point he explained that the language was struck simply because
100
'It was sought not to get into that field because you were in a field then where, in our attempts to take care of a purely domestic matter, we might be putting the United States on record with a precedent which we intended only to apply domestically but which might be applied internationally.'30
He emphasized that
101
'The elimination of the language still follows what the Chair understands to be the philosophy of the bill, that we are putting the States where they thought they were, and not attempting now to create either a situation in law or a basis for a rule of evidence that may or may not have been sound when the States came into the Union.'31
102
Senator Daniel of Texas, a leading advocate and sponsor of the bill, said:
103
'I agree fully with the chairman that the striking of these words was not done in any manner to prejudice the rights of the States * * *. I just want to state that for the record, if this record is ever used in the future.'32
104
Senator Cordon, who had proposed the change, replied:
105
'I appreciate the statement of the Senator, and I concur in it, so far as the action taken here is concerned.'33
106
And Senator Anderson, another member of the Committee reporting the bill, agreed:
107
'I subscribe fully to what the chairman said quite awhile ago in pointing out that this bill does not seek to take away from or add to the position of these States as they came into the Union.'34
108
When the bill was reported out of committee and presented to the Senate, its supporters made clear that the Committee had made no change in its original objective of restoring to the States everything within their historic boundaries. Senator Holland said it was an 'obvious fact'35 that the bill was 'giving to the States that which, without question, was enjoyed by them for 150 or 160 years, namely, the ownership of everything within State boundaries, and reserving to the Federal Government everything beyond that.'36 Senator Cordon expressed his understanding that
109
'The boundaries of the States cannot be changed by Congress without the consent of the States. We cannot do anything legislatively in that field, and we have not sought to do so in this measure.
110
'I think that answers all and every one of the discussions with reference to boundary lines of the States, including whether they are measured from low water, high water, inland water, or some island.'37
And Senator Holland said:
111
'By way of a brief summary, the general purpose of this measure as reported by the Interior and Insular Affairs Committee is to recognize, confirm, establish, and vest in and assign to the respective States the title and ownership of the lands and resources beneath navigable waters within their respective boundaries * * *.'38
And Senator Daniel explained:
112
'Until recently the Federal Government never thought it owned these lands, and even until now it has never possessed or used them. The lands are still in the possession of the States * * *. The passage of the pending proposed legislation will simply permit the States to keep what they have always had since the foundation of the Union.'39
113
If that were not enough to show that the removal of the definition of inland waters from § 2 of the bill as a courtesy to the State and Justice Departments was to have no substantive effect, the Senate Committee said at the beginning of its report on its version of the bill:
114
'The committee wishes to emphasize that, as will be seen from comparison with the measure as introduced, the changes are primarily those of form and language, and the committee amendment is consistent throughout with the philosophy and intent of Senate Joint Resolution 13 as introduced. The only change of substance is found in section 9, in which the jurisdiction and control of the Federal Government over the natural resources of the seabed of the Continental Shelf seaward of historic State boundaries is confirmed.'40
115
Thus the continued intention to confer on the State all submerged lands within their 'historic boundaries' was again reiterated. And in a specific reference to the elimination of the definition of inland waters from § 2, the Committee Report said that the words had been deleted
116
'because of the committee's belief that the question of what constitutes inland waters should be left where Congress finds it. The committee is convinced that the definition neither adds nor takes away anything a State may have now in the way of a coast and the lands underneath waters behind it.'41
117
The Committee had before it the report of the Special Master in this very case42 and did not adopt his criteria, based on the California decision, for determining inland waters, criteria which included the Boggs formula for determining bays, a formula which many Senators indicated they disapproved and which the Committee Report specifically stated it did not mean to establish as the law. Clearly the position of the Committee was that it really cared only about restoring to the States their claims to submerged lands within their historic boundaries, which of course included all the lands, bays, harbors and channels within those boundaries—their historic coastlines—and three miles or leagues of marginal sea.43 The Committee saw no reason to attempt to spell out its definition of inland waters, as including all historic bays and channels, when there was no reason to do so and when to do so might possibly have embarrassing repercussions on American foreign relations, where different definitions of inland waters prevailed. Lest anyone misconstrue the change, the Committee said with reference to it:
118
'The elimination of the language, in the committee's opinion, is consistent with the philosophy of the Holland bill to place the States in the position in which both they and the Federal Government thought they were for more than a century and a half, and not to create any situations with respect thereto.'44
119
The Court reads this change in words as showing 'a legislative intent to leave the definition of inland waters to the courts without restriction.' Ante, p. 154. The Court agrees that before this change was made, the bill gave the States all the submerged lands out to their historic boundaries. The Court admits that the 1947 California decision rejected the States' claims to their historic boundaries and, according to the Court, set up a test of international law and foreignpolicy standards for measuring inland waters. But the Court concludes that when the Committee said that it was leaving the States with the rights to inland waters which they had before the California decision, it really meant to establish the international law standard, including the Boggs formula (except insofar as that formula has since been abandoned by treaty) which many Senators had so strenuously opposed and which in their Committee Report they specifically stated they did not mean to adopt. I think that a fair reading of the discussion of this change shows that the Committee members intended that all the States should have their boundaries, including a belt of marginal sea and all the lands and waters from which they had historically measured their claims to the marginal sea, which they thought would have been recognized as such by the courts up to the time of the California decision, and that the test of inland waters and coastlines was therefore an historical one. The Committee regarded the California decision as a complete aberration, and assumed that before it all courts would have judged inland waters by historical tests, as in fact several California and federal decisions show they had.45 I cannot understand how the Court reasons that when the Committee said that it left the States as it thought they were before the California decision, it really meant to put them in the position the Court says they were in after that case, insofar as inland waters and their coastlines are concerned. I think that the amendment did just what the Committee said it did: it freed Congress from the need of 'having to determine matters that are highly technical,'46 and left it for the States to prove if they could the facts to support their historic claims that particular bodies were inland waters behind the coastline. Senator Kuchel of California, fully familiar with the problems of California, and on the alert to protect that State's interest in the bays and channels within its historic boundaries, interpreted the bill properly, I think, when he said:
120
'In recognizing State ownership of lands beneath navigable waters within historic State boundaries, this joint resolution wisely makes no attempt to define exactly what those boundaries are. In substance, the resolution provides that each of the States has ownership of all lands beneath navigable waters extending, in the case of littoral States, 3 geographical miles seaward from its coastline, or to its historic boundary.'47
121
Thus up to this point in the legislative history I think it can be said that (1) the Holland bill as originally drafted unquestionably gave the States title to all submerged lands out as far as their historic boundaries; and (2) the elimination of the legislative definition of inland waters did not alter the original intent of the bill in the slightest degree, but rather left it up to the States to prove that particular bays, channels or harbors were inside their coastlines as part of their 'historic boundaries,' according to 'the position in which both they and the Federal Government thought they were for more than a century and a half.'48
122
B. THE THREE-MILE OR THREE-LEAGUE LIMITATION.
123
The Court calls attention to one other change in the bill before its enactment, and on the significance attributed to this one small change depends the validity of the Court's entire opinion. The Court says that this change was fundamental, of vital importance. It says that to the extent of this change, 'the philosophy (of the Holland Bill) was modified.' Ante, p. 154. I find this altogether surprising, since when the change was introduced—by Senator Holland himself—and adopted almost immediately without any opposition being voiced, he said it was 'just a minor change of verbiage,'49 one of several 'minor changes for the purpose of clarification.'50 If the change was to have the dramatic effect which the Court attributes to it, Senator Holland certainly did not recognize it, for he said that it did 'not depart in the slightest from the intention of the sponsors of the joint resolution.'51 This amendment along with others was adopted after discussion occupying less than two pages in the Congressional Record, without a roll-call vote, without even one single objection from the Senate floor. Fundamental changes in the basic purpose of bills are never adopted in that way. Senator Holland's explanation that this was 'just a minor change of verbiage' should be accepted by this Court, as I have no doubt it was accepted by the Senate.
124
This change which its sponsor thought was 'minor' and which the Court thinks is fundamental, and on which the Court's whole argument depends, merely modified the definition of 'boundaries' in § 2 of the Act by adding:
125
'but in no event shall the term 'boundaries' or the term 'lands beneath navigable waters' be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean, or more than three marine leagues into the Gulf of Mexico.'52
126
The Court says that this language implicitly did away with the original and continued intention of the proponents of the bill to 'restore' to the States the ownership of all submerged lands lying under all waters within their historic boundaries, wherever those boundaries lay, and instead established a rule that historic boundaries would not be honored if they extended more than three miles from the coastline, i.e., from the seaward edge of the inland waters as the Court today defines inland waters. The Court then reads the legislative history as destroying the historic definition of inland waters—which is, of course, all waters within a State's boundaries exclusive of claims to marginal sea—and substituting a very restrictive one based on this Court's decision in the California case, a reading which I have indicated above is, I think, flatly contrary to what the legislative history shows. The Court thus holds that by making two minor changes in the bill, which changes they said over and over again were of no substantive significance, the Senators supporting it silently repudiated in large measure their own intention, which they had proclaimed to the public and the Senate from the beginning and continued to proclaim to the end, of restoring to the States their historic constitutional boundaries.
127
This three-mile or three-league limitation amendment was added for a very simple reason, which is plain in the Congressional Record and which shows that the sponsors of the bill were reaffirming rather than abandoning their basic original purpose in offering this and similar bills: they wished to restore to the States the submerged lands out to their historic boundaries, including three miles or leagues of marginal sea, but no farther. As reported from Committee, the bill gave the States submerged lands out to their boundaries at the time they entered the Union 'or as heretofore or hereafter approved by Congress' without any limitation. It was feared by some that one or more of the States, none of which had ever claimed more than three miles (or leagues) of the marginal sea, might suddenly assert claims that their boundaries extended out hundreds of miles to the very limits of the Continental Shelf.53 If allowed to do this, the fear was expressed, such States would be taking title to mineral wealth far beyond the historic boundaries to which the sponsors of the bill wished to confine them. The sponsors stated that their purpose was merely to 'restore' to the States what they had thought they had had as boundaries—the outer part of the Continental Shelf was to belong to the Federal Government.54 In order to prevent any States from trying to use the word 'boundaries' in the Act to push their boundaries out beyond their historic three-mile or three-league claims to the marginal sea, Senator Holland himself introduced this amendment. It deleted the words 'or hereafter,' thus limiting the States to any boundaries which they had previously claimed, in spite of any claims they might make in the future; and it also set forth as a limitation the Senators' understanding of the maximum extent of the marginal sea historically claimed by any State from or as a part of its historic boundaries: three geographical miles in the Atlantic and Pacific Oceans, and three leagues in the Gulf of Mexico. As Senator Holland explained, a limitation to existing boundaries had been the intention of the bill's sponsors all along, and it had been and was the understanding of the sponsors that no States claimed that their historic boundaries extended more than three miles from their coastlines in the Atlantic or Pacific Oceans. He said the three-mile limitation was 'just a minor change of verbiage'55 made in order 'to make very clear that Congress at this time is seeking to do only those things which the authors and supporters of the joint resolution have so very fully, and rather repeatedly, stated for the RECORD heretofore during the course of the debate.'56 He reiterated that
128
'The amendment will simply indicate that this Senate, in the passage of the joint resolution, is certainly not inviting additional claims, and it knows of no additional claims.'57
129
Senator Holland, as the record shows, and many other Senators were well aware of California's existing claim which is now before us, and could not have considered it to be 'additional.'58
130
Time and time again the proponents of the bill stated before the amendment was passed that no State claimed more than three miles or leagues of marginal sea as part of its historic boundaries, and no State would be given rights by the bill beyond those original claims. Said Senator Holland, 'I emphasize the fact that this joint resolution does not extend the boundary of any State beyond the 3-mile limit.'59 Said Senator Daniel, again before the amendment:
131
'* * * those of us who are coauthors of this measure have always understood that it was not necessary to write into the pending legislation a specific provision that it shall not apply to lands beyond 3 miles, or 3 leagues, because all the States are claiming is 3 miles, except in the Gulf of Mexico where historic boundaries are 3 leagues from shore.'60
He added:
132
'I believe that the exchange here within the past few minutes should make it very clear that the authors of this measure are not trying to give to the States, or to restore to the States, any lands outside their historic boundaries.'61
133
The claims of the States to a belt of marginal waters of course did not determine the location of the coastline from which such a belt would be measured. California's historic coastline, it says, was the outer limit of the bays and islands. In limiting the States to their historic claims of three miles or three leagues from their 'coast lines,' wherever those 'coast lines' might be, Congress unquestionably, I think, was leaving totally undisturbed the validity of their historic claims to the boundaries from which those belts would be measured.
134
The Court's opinion lays great stress on an opinion expressed by Senator Holland that California's claim that its historic boundary of inland waters and marginal sea extended out to and three miles beyond its off-shore islands was not persuasive. The Court leaves the impression that Senator Holland made a ruling that California's claim would not be covered by the Act. In fact he did nothing of the kind, but merely expressed the opinion to opponents of the bill who said that restoring the States to their historic boundaries would give them too large an area of submerged lands and who cited California's claim to the channel as an example, that he thought California would have a difficult time in proving that its historic boundary extended so far. The context of Senator Holland's remarks is important to set out in full, since when read in context his opinion, which he later repeated on several occasions, serves to emphasize that he intended that each State be allowed to prove where its historic boundaries lay, which is all that California is asking that it be allowed to do here, and which is what the Court now denies it.
135
The exchange began when Senator Long of Louisiana asked Senator Holland about how far seaward Louisiana's boundary would extend under the bill. Senator Long said:
136
'Now, if I understand correctly, the Senator is not proposing that the actual determination of exactly what was the historic boundary at the time Louisiana came into the Union be decided by the Congress, but rather that the question of the historic boundary of the State might be one still subject to actual judicial determination.
137
'Senator HOLLAND. Of course, the Senator is right.
138
'Senator HOLLAND. We cannot draft general legislation that will still every possible legal question.'62
139
Senator Anderson of New Mexico then asked Senator Holland whether the bill validated the claim of California that its historic boundary extended to the offshore islands with a three-mile belt of marginal sea beyond them. To this Senator Holland replied:
140
'The Senator from Florida can only give his opinion, and in his opinion it would not, because of the great depths of the water that exist between the coastline of California and the extrusions from the sea bottom which appear out there, and some of which are above the level of the water. Again, though the Senator from Florida states that that would be a matter, naturally, on which the courts would be asked to rule. We are not going to find any formula that displaces the function of the courts to go into cases and find which cases come within the general doctrine announced by legislation and which fall without that legislation.'63
141
In other words, the bill did not settle definitively the question of fact as to whether California's historic boundary was to be measured from the outer rim of the islands. That was a question on which courts would have to hear evidence and then decide according to 'the general doctrine announced by (this) legislation'—the doctrine, as Senator Holland and others repeated so many times, that the States were to be restored to their 'historic boundaries.' And as he said in summary, there was nothing in his bill which would diminish California's claim to the waters and submerged lands around its offshore islands.64 In later referring to the adoption of Senator Holland's amendment to the bill, Senator Daniel of Texas said, 'the intention was to write specifically into the joint resolution what the authors have said all along would be its effect—that it covered only land within the historic boundaries.'65
142
As a further indication that the three-miles-from-coast-line amendment was not intended to affect States' claims to their historic boundaries, the record shows that opponents of the bill subsequently tried to amend it to restrict the line from which the three-mile limits would be measured, and failed. Senator Douglas of Illinois, a leader of the opposition, proposed an amendment which would have changed the definition of 'coast line' in the bill so that the three miles would be measured only from the main continent, and separately around any islands, thus cutting off California's claim to the submerged lands between the islands and the mainland, which is largely the issue before us now. Senator Douglas indicated specifically that his proposed amendment was intended to destroy California's claim to those submerged lands, and that he had warned Senator Kuchel of California of his intention to introduce it.66 Senator Long of Louisiana objected that 'the Senator from Illinois is submitting his own definition of inland waters.'67 Senator Douglas' amendment was defeated,68 and California's historic claims, for whatever they might prove to be worth, were left, as Senator Holland had stated, undiminished.
143
I think that this review of the relevant hearings and debates in the Senate makes clear three things: (1) As originally proposed, the bill was intended to 'restore' to the States title to submerged lands within their historic boundaries, whatever those might prove to be. (2) The removal of the explicit definition of inland waters, far from being, as the Court views it, fundamental, was not a 'change of substance'69 and was 'not done in any manner to prejudice the rights of the States';70 it was intended merely to avoid possible embarrassment in the field of international relations from a bill which had nothing to do with international relations or international law, being merely a 'transfer of title.'71 (3) The addition of the limitation of boundaries to three miles beyond the coastline, far from being, as the Court views it, fundamental, was 'just a minor change of verbiage'72 intended to make clear what the bill's sponsors had intended all along: that the bill was not designed to allow States in the future to push their boundaries out to the limits of the Continental Shelf, but rather to limit them to everything within their historic boundaries, including historic coastlines and historic three-mile or three-league claims to the marginal sea beyond.
144
Near the conclusion of the debates on the bill Senator Holland in explaining its purpose used these words, which I do not think show any fundamental or even perceptible changes or modifications of philosophy from those he had used in his first speech on the bill:
145
'The truth is that Senate Joint Resolution 13 simply restores or gives back to the States the submerged lands within their historic boundaries which they have possessed, used and developed in good faith for over 100 years. * * *
146
'* * * It would write the law for the future as it was believed to exist in the past by restoring to the States all lands beneath navigable waters within their historic boundaries.'73
C. THE HOUSE LEGISLATIVE HISTORY.
147
The hearings and debates in the House were less extensive than those in the Senate, but the intention of the legislators there to restore to the States all submerged lands within their historic boundaries was no less explicit. Forty different bills, of which one74 was identical with the Senate Joint Resolution passed by both Houses the year before and with the Senate bill introduced by Senator Holland, were considered by the House Subcommittee and Committee. The Committee chose the latter bill and with minor perfecting amendments reported it favorably to the House.75 Typical of the testimony at the hearings was the statement by Attorney General Brownell that:
148
'The States want, and we believe they are entitled to, all the development rights, you might say, in these submerged lands within their historic boundaries.'76
149
The House Committee Report on the bill said:
150
'Title II confirms and establishes the rights and claims of the 48 States, asserted and exercised by them throughout our country's history, to the lands beneath navigable waters within State boundaries and the resources within such lands and waters.'77
151
In explaining the bill to the members of the House, Congressman Willis of Louisiana, a member of the Committee and a supporter of the bill, said:
152
'First, it restores to the States complete title to the submerged lands up to the limit of their historic boundaries.'78
153
And on the floor Congressman Wilson of Texas, also a Committee member and supporter of the bill, explained its purpose in the following exchange:
154
'Mr. WILSON of Texas. * * * Bear in mind that this is title II, the title that returns or restores this seaward boundary within the historical boundaries of the States to the States * * *.
155
'Mr. HALLECK. If we stick to the provisions of the bill, then we are just being consistent with respect to the title to the land within the historic boundaries?
156
'Mr. WILSON of Texas. That is true.'79
157
The House bill, passed with this intention, was then sent to the Senate, which at that time was considering Senator Holland's bill, a virtually identical measure. After the Senate passed the Holland bill, with the two changes which the Court deems fundamental, Congressman Reed, Chairman of the House Judiciary Committee, which had reported the House bill, asked the members of the House to accede to their bill as amended by the Senate. He prefaced his remarks by saying:
158
'Mr. Speaker, I trust that 3 minutes will be sufficient for me to say all that I deem necessary about this resolution.'80
159
He then proceeded in these words to tell the members of the House what had happened to their bill as adopted by the Senate:
160
'Titles I and II of the original bill, H.R. 4198, are now before us. There have been no substantial changes made by the Senate in these titles. They are practically the same as when passed by the House except in a few instances where a few words and phrases here and there have been changed or deleted for clarification.
161
'About the only thing that is substantially new in this bill is a reassertion by the Senate in section 9 which confirms the rights of the United States to the jurisdiction and control of the lands under the Continental Shelf outside of State boundaries.'81
162
Relying on these assurances by Chairman Reed that there had been 'no substantial changes' made in the bill by the Senate, the House without further discussion of the portions of the bill here involved proceeded to adopt the Senate version, which after being signed by the President became the Submerged Lands Act of 1953.
163
This, then, is the legislative history of the Submerged Lands Act, both in the Senate and in the House, which, according to the Court, shows that the sponsors and supporters of the Act completely altered their intention of restoring to the States the submerged lands within their historic boundaries, and instead left the States with what the Court allows them today. I think that the statements and actions of the supporters of the bill show on the contrary that the intention of restoring all submerged lands under all waters within historic state boundaries was plainly and explicitly stated and understood by all from the beginning, and, despite attacks from opponents of the bill, never varied. Time and time again the Senators and Congressmen repeated that the bill had not been changed in any way to diminish the rights granted to the States in the bill as originally introduced—rights which, as the Court does not dispute, included the right to all submerged lands under all waters within historic state boundaries. I would follow the understanding of the authors and supporters of the bill, and I would take them at their word.
IV.
164
In light of this legislative history, of which I have set forth only a small part, I think that under the Submerged Lands Act California is entitled to all the submerged lands within its historic boundaries, and that it should be given an opportunity to try to prove in hearings before a Master where those historic boundaries were. The Court says that Congress left it up to this Court to expound the legal principles which shall determine California's claims, without any reference to the Submerged Lands Act's stated purpose to restore the mineral rights of the States in submerged lands within their historic boundaries. I think the Court is completely misreading the intentions of the authors and supporters of the Act. If there is anything clear in the legislative history, it is that Congress was not satisfied with the way in which this Court had decided the California case and did not approve of the considerations of external sovereignty used there in determining a domestic dispute over title. It seems to me the height of irony to hold that an Act passed expressly to escape the effect of this Court's opinion in this field is now construed as leaving us free to announce principles directly antithetic to the basic purpose of Congress of deciding that question for itself once and for all. True, the Congress left to the courts the exercise of their historic function to decide the factual question of where a State's historic boundaries, based on those approved when it was admitted to the Union, lie. But I think the Court errs in arguing repeatedly that by leaving it to the courts to decide the issues of fact in particular cases, Congress meant to leave it to this Court to determine the legal principles governing California's claim, and in particular to do so by adopting a formula of its own devising based on one used by the State Department in its handling of foreign affairs.
165
California has never been given an opportunity to appear at a hearing to determine where its boundaries were when it came into the Union. The 13-year-old report of the Master quite naturally considered this issue irrelevant since the Submerged Lands Act had not been passed at the time that report was made. Certainly it cannot be asserted that California's claim that its 1849 boundaries included these areas is frivolous. By the terms of its constitution approved by Congress when the State was admitted to the Union in 1850, and over the years, California appears to have claimed that its boundaries extended beyond its outlying islands and has claimed as inland waters within those boundaries all the bays, harbors and channels in question in this lawsuit. A statement in the original California Constitution,82 several official maps, including the one used at the California constitutional convention in 1849,83 and other evidence tend to support California's contention that it historically owned these bays and the channel between the islands and the mainland. Both state and federal court decisions have held as a matter of fact and law that some of the very bays in question here, which the Government argues are not inland waters in the international sense, were within the boundaries of the State and subject to its jurisdiction. Ocean Industries, Inc. v. Greene, 15 F.2d 862 (D.C.N.D.Cal.) (Monterey Bay); United States v. Carrillo, 13 F.Supp. 121 (D.C.S.D.Cal.) (San Pedro Bay); People v. Stralla, 14 Cal.2d 617, 96 P.2d 941 (Santa Monica Bay); Ocean Industries, Inc. v. Superior Court, 200 Cal. 235, 252 P. 722 (Monterey Bay). Indeed, in one of these cases, People v. Stralla, supra, the United States Attorney with the authorization of the Attorney General of the United States appeared as amicus curiae agreeing with the State's attorney that all of the bay in question there as here was within California's boundaries and subject to its exclusive territorial jurisdiction.84
166
There may be evidence which tends to disprove the historic validity of California's claims. But what California has asked here is an opportunity to prove where its boundaries historically were, to use the test of ownership fixed by Congress in the Submerged Lands Act rather than the foreign-relations tests set up by the Special Master 13 years ago and approved by this Court today for the first time. I think that the legislative history of the Submerged Lands Act shows without question that the definitions in it were to be read as preserving to the maritime States their claims to submerged lands and waters within their historic boundaries, and that those who offered and supported the bill regarded California's claim to these bays, harbors and the channel out to its offshore islands as something the State would be allowed to try to prove. In litigation to determine the extent of the outer limits of the States' historic boundaries in the marginal sea in the Gulf of Mexico, Texas and Florida were allowed to prove their historic boundaries and won in United States v. Louisiana, 363 U.S. 1, 80 S.Ct. 961, 4 L.Ed.2d 1025, and United States v. Florida, 363 U.S. 121, 80 S.Ct. 961, 1026, 4 L.Ed.2d 1096 respectively. Louisiana, Mississippi, and Alabama based their claims in the Gulf of Mexico on historic boundaries and this Court decided against them on the facts in United States v. Louisiana, supra. All five of those States were given an opportunity to try to prove their historic boundaries, in order to determine the extent of the submerged lands to which they were entitled by the Submerged Lands Act. California has had no such opportunity. California set up as an affirmative defense in 1946 that its boundaries extended to the point it presently claims. We did not pass on this contention then, for we held that regardless of where the historic boundaries were, the United States had paramount rights in all its marginal sea. The Court today still leaves the question of the State's historic boundaries undecided, except insofar as relevant to international claims of the United States, and instead decides this case on the basis of standards of international law derived from the reasoning of the 1947 California case. Congress did not, I think, mean to readopt the standards of the California case, which the authors of the Submerged Lands Act so violently criticized, and to cut California off without any chance at all to establish ownership of these bays and channels by proving that they were within the State's historic boundaries. In order to carry out what I believe to be the congressional command in the Submerged Lands Act, I would refer the case to a Special Master to give California that chance.
APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D
1
67 Stat. 29, 43 U.S.C. §§ 1301—1315 (1958 ed.).
2
The late William H. Davis of New York City.
3
The segments were as follows:
1. From Point Conception to Point Hueneme;
2. San Pedro Bay;
3. From the southern extremity of San Pedro Bay to the western headland at Newport Bay;
4. Crescent City Bay;
5. Monterey Bay;
6. San Luis Obispo Bay;
7. Santa Monica Bay.
We directed the Special Master to recommend answers to the following questions:
'Question 1.—What is the status (inland waters or open sea) of particular channels and other water areas between the mainland and offshore islands, and, if inland waters, then by what criteria are the inland water limits of any such channel or other water area to be determined?
'Question 2.—Are particular segments in fact bays or harbors constituting inland waters and from what landmarks are the lines marking the seaward limits of bays, harbors, rivers, and other inland waters to be drawn?
'Question 3.—By what criteria is the ordinary low water mark on the coast of California to be ascertained?' 342 U.S. 891, 72 S.Ct. 198, 96 L.Ed. 668.
4
California's claim to the 'overall unit area' runs from Point Conception to Richardson Rock (21 miles across water), to San Miguel Island, to Santa Rosa Island, to Gull Island; thence to Begg Rock (35.8 miles), to San Nicolas Island, to San Clemente Island (43 miles); thence back to the mainland at Point Loma (56.8 miles). San Nicolas and San Clemente Islands are over 50 miles from shore. See Map attached as Appendix C to the dissenting opinion, post, at 178.
5
To determine whether a coastal indentation is of sufficient depth and shape to be island water, the Boggs formula would (1) draw the closing line across the mouth of the indentation; (2) draw a belt around the shore of the indentation (similar to a small marginal belt) having a width equal to one-fourth the length of the closing line across the entrance; (3) compare the remaining area inside the closing line with the area of a semicircle having a diameter equal to one-half of the length of the closing line, and if the enclosed area is larger than that of the semicircle, the indentation is inland water. Boggs, Delimitation of the Territorial Sea, 24 Am.J.Int'l L. 541, 548.
6
The Special Master recommended as follows:
'Question 1: The channels and other water areas between the mainland and the offshore islands within the area referred to by California as the 'over-all unit area' are not inland waters. They lie seaward of the baseline of the marginal belt of territorial waters, which should be measured in each instance along the shore of the adjoining mainland or island, each island having its own marginal belt.
'Question 2: No one of the seven particular coastal segments now under consideration for precise determination and adjudication is a bay constituting inland waters. The landmarks from which the lines marking the seaward limits (the straight-line segments of the baseline of the marginal belt) of bays, harbors, rivers and other inland waters are to be drawn, are as follows:
'Bays
'The extreme seaward limit of inland waters of a bay is a line ten nautical miles long. For indentations having pronounced headlands not more than ten nautical miles apart, and having a depth as hereinafter defined, a straight line is to be drawn across the entrance. Where the headlands are more than ten nautical miles apart, the straight line is to be drawn across the indentation at the point nearest the entrance at which the width does not exceed ten nautical miles. In either case the requisite depth is to be determined by the following criterion: The envelope of all arcs of circles having a radius equal
to one-fourth the length of the straight line shall be drawn from all points around the shore of the indentation; if the area enclosed by the straight line across the entrance and the envelope of the arcs of the circles is greater than that of a semicircle with a diameter equal to one-half the length of the line across the entrance, the waters of the indentation shall be regarded as inland waters; if otherwise, the waters of the indentation shall be regarded as open sea.
'Harbors (Ports)
'In front of harbors the outer limit of inland waters is to embrace an anchorage reasonably related to the physical surroundings and the service requirements of the port, and, absent contrary evidence, may be assumed to be the line of the outermost permanent harbor works.
'River Mouths
'Where rivers empty into the sea, the seaward limit of inland waters is a line following the general direction of the coast drawn across the mouth of the river whatever its width. If the river flows into an estuary, the rules applicable to bays apply to the estuary.
'Landmarks
Where pronounced headlands exist at tributary waterways, the appropriate landmark is the point of intersection of the plane of ordinary low water with the outermost extension of the natural headland. Where there is no pronounced headland, the landmark is the point of intersection of the ordinary low-water mark with a line bisecting the angle between the general trend line of the ordinary low-water mark along the open coast and the general trend line of the ordinary low-water mark along the shore of the tributary waterway.
'Question 3: The 'ordinary low-water mark on the coast of California' is the intersection with the shoreline (as it exists at the time of survey) of the plane of the mean of all low waters, to be established, subject to the approval of the Court, by the United States Coast & Geodetic Survey from observations made over a period of 18.6 years.' Report of Special Master 2—5 (footnotes omitted).
7
The Submerged Lands Act provides in relevant part:
'AN ACT
'To confirm and establish the titles of the States to lands beneath navigable waters within State boundaries and to the natural re-
sources within such lands and waters, to provide for the use and control of said lands and resources, and to confirm the jurisdiction and control of the United States over the natural resources of the seabed of the Continental Shelf seaward of State boundaries.
'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the 'Submerged Lands Act.'
'TITLE I
'DEFINITION
'SEC. 2 (43 U.S.C. § 1301). When used in this Act—
'(a) The term 'lands beneath navigable waters' means—
'(2) all lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide and seaward to a line three geographical miles distant from the coast line of each such State and to the boundary line of each such State where in any case such boundary as it existed at the time such State became a member of the Union, or as heretofore approved by Congress, extends seaward (or into the Gulf of Mexico) beyond three geographical miles, and
'(3) all filed in, made, or reclaimed lands which formerly were lands beneath navigable waters, as hereinabove defined;
'(b) The term 'boundaries' includes the seaward boundaries of a State or its boundaries in the Gulf of Mexico or any of the Great Lakes as they existed at the time such State became a member of the Union, or as heretofore approved by the Congress, or as extended or confirmed pursuant to section 4 hereof but in no event shall the term 'boundaries' or the term 'lands beneath navigable waters' be interpreted as extending from the coast line more than three geo-
graphical miles into the Atlantic Ocean or the Pacific Ocean, or more than three marine leagues into the Gulf of Mexico;
'(c) The term 'coast line' means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters;
'TITLE II
'LANDS BENEATH NAVIGABLE WATERS WITHIN STATE BOUNDARIES
'SEC. 3 (43 U.S.C. § 1311). RIGHTS OF THE STATES.—
'(a) It is hereby determined and declared to be in the public interest that (1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, and they are hereby, subject to the provisions hereof, recognized, confirmed, established, and vested in and assigned to the respective States or the persons who were on June 5, 1950, entitled thereto under the law of the respective States in which the land is located, and the respective grantees, lessees, or successors in interest thereof;
'(b) (1) The United States hereby releases and relinquishes unto said States and persons aforesaid, except as otherwise reserved herein, all right, title, and interest of the United States, if any it has, in and to all said lands, improvements, and natural resources;
'SEC. 4 (43 U.S.C. § 1312). SEAWARD BOUNDARIES.—The seaward boundary of each original coastal State is hereby approved and confirmed as a line three geographical miles distant from its coast line or, in the case of the Great Lakes, to the international boundary. Any State admitted subsequent to the formation of the Union which has not already done so may extend its seaward boundaries to a line three geographical miles distant from its coast line, or to the international boundaries of the United States in the Great Lakes or any other body of water traversed by such boundaries. Any claim heretofore or hereafter asserted either by constitutional provision, statute, or otherwise, indicating the intent of a State so to extend its bounda-
ries is hereby approved and confirmed, without prejudice to its claim, if any it has, that its boundaries extend beyond that line. Nothing in this section is to be construed as questioning or in any manner prejudicing the existence of any State's seaward boundary beyond three geographical miles if it was so provided by its constitution or laws prior to or at the time such State became a member of the Union, or if it has been heretofore approved by Congress.'
8
One English, statute, or land mile equals approximately .87 geographical, marine, or nautical mile. The conventional '3-mile limit' under international law refers to three geographical miles, or approximately 3.45 land miles.
9
S.Rep.No.133, 83d Cong., 1st Sess., 18 U.S.Code Cong. and Adm.Laws 1953, p. 1487.
10
99 Cong.Rec. 4116. Senator Anderson proposed a similar amendment while the bill was in committee. Hearings before the Senate Committee on Interior and Insular Affairs on S.J.Res. 13 and other bills, 83d Cong., 1st Sess., 1348 (hereinafter cited as Senate Hearings). After discussion the proposal was voted down, id., at 1416.
11
Closing Brief of California 14.
12
Senate Hearings 312—315, 1064—1065, 1085, 1304, 1378.
13
See also Senate Hearings 1285 (remarks of Senator Cordon).
14
Senate Hearings 275—280.
15
Id., at 1052.
16
Id., at 1374—1380.
17
Id., at 1380—1385.
18
In the later debates, Senator Cordon answered an assertion that the committee had rejected the Boggs formula by saying, 'The committee, as I recall, and I think I am correct, neither accepted nor rejected the Boggs formula or any other formula.' 99 Cong.Rec. 2633. And see the material quoted in n. 23, infra.
19
See Senate Hearings 1415 (remarks of Senator Cordon).
20
See, e.g., 99 Cong.Rec. 2881, 2916, 3038—3040, 3549—3564, 3655—3656, 3884—3886, 4085—4086, 4094—4099, 4109.
21
99 Cong.Rec. 3655 (remarks of Senator Kilgore).
22
99 Cong.Rec. 2695, 3039 (remarks of Senator Daniel), 2746 (remarks of Senator Holland), 2881 (remarks of Senator Anderson), 2916 (remarks of Senators Anderson and Douglas). Senate Hearings 957 (remarks of Senator Holland).
23
Several amendments were offered and defeated which would have limited the grant to the international three-mile limit or to three miles from the shoreline around the entire coastal perimeter of the United States, thus cutting off any claims to a three-league limit by the Gulf Coast States. See 99 Cong.Rec. 4157, 4203, 4473—4478. The reason for the unacceptability of these amendments to the leaders of the measure, largely composed of Senators from the Gulf Coast States, is obvious, and had nothing to do with any particular concept of inland waters.
Senator Douglas introduced amendments specifically designed to prevent States from claiming as inland waters those water areas between the mainland and remote islands. Section 2(c), as amended, would have read: 'The term 'coast line' means the line of ordinary low water along that portion of the coast of the main continent which is in direct contact with the open sea and the line marking the seaward limit of inland waters, and in the case of any island seaward of such coast, means the line of ordinary low water around such island.' 99 Cong.Rec. 4240. (Amendments italicized.) The colloquy leading to the rejection of these amendments is extremely revealing in the total absence of hostility to the basic idea which Senator Douglas was pursuing and the absence of any understanding by the leaders of the measure that it embodied an historical definition of inland waters.
'Mr. DOUGLAS. Mr. President, this amendment is designed to clear up an ambiguity in the pending joint resolution and to conform to what the distinguished Senator from Florida (Mr. HOLLAND) the author of the joint resolution, stated was its real intention.
'One of the problems connected with the joint resolution is the problem of where the base line is, from which the submerged lands seaward from the low-water mark are to be measured. Senate Joint Resolution 13 defines this location as the 'coastline,' but it is not precisely certain in my mind or in the mind of the Senator from Oregon (Mr. CORDON) whose interpretation I requested, what is meant by the word 'coastline.' In the main debate on the joint resolution, I pointed out that this definition might mean 1 of 2 things. First, it might mean, what I hoped it would mean; namely, the shoreline of the main continental land mass and the external limits of inland
waters; and then, in the case of islands, the shorelines of each of those islands.
'But I pointed out that probably there would be a contrary claim particularly in the case of California, and that an attempt would be made to define the term 'coastline' as being a line drawn from the main continent out to and along the outer edge of the outer islands lying off the coast. This is a tremendously important subject. It involves very substantial areas, particularly in the case of California. If it is the latter definition which is to be used, then the water between the remote islands—however far out—and the main continental land mass would become inland waters, not external waters, and all the intervening submerged lands would become the property of the coastal State.
'Mr. LONG. Mr. President, I can understand the argument made by the Senator from Illinois, but I believe his amendment completely fails to reach the objective he is striving to achieve.
'If one examines the testimony of the representative of the Department of State, he will see that it is the position of the State Department of the present administration, as it was also the position of the previous administration, and, so far as I know, of all other administrations, that the marginal sea begins wherever the line of inland waters ends. That is a very simple position to take in the case of a straight coast line, as is the situation with regard to the State of Texas. There the shore line and the coast line are synonymous in almost all instances.
'However, the situation becomes more complicated when we consider a coast having many indentures, islands, sounds, coves, bays, and the like. At present there is a difference of opinion between the State governments and the Federal Government as to precisely where the line of inland waters is located. But it is well agreed, as it has always been agreed, that the marginal sea begins at the point where the line of inland waters ends.
'I should like to apply that definition to the State of Louisiana. I regret that I do not have here a map of Louisiana for the purpose of demonstrating my point, but all who have made a study of the question agree that a body of water known as Chandeleur Sound is
inland water. In that area there is a large number of islands, each island close to another. It is agreed by both the Federal Government and the State government, and it has always been agreed, that Chandeleur Sound is inland water. The effect of the Douglas amendment would be to make Chandeleur Sound a part of the high seas, although the Federal Government has never contended that Chandeleur Sound was a part of the high seas, and the State government has always claimed it was inland water.
'Likewise, in the case of bays, it is the position of the State Department that bays not wider than 10 miles are inland waters. The distance of 10 miles between headlands across the mouth of a bay marks the place where the marginal sea begins. The amendment offered by the Senator from Illinois would have the effect once again of declaring such a bay to be a part of the high seas, merely because it is wider than 6 miles between headlands.
'Obviously, the Senator from Illinois is submitting his own definition of inland waters. In effect, it is a definition of inland waters which does not have the support of a single State government in the United States; it does not have the support of the State Department; it is a definition that does not meet with the approval of the Department of Justice; it is a definition, in effect, that does not meet with the approval of a single department of either the Federal Government or the State governments.
'There is no authority for accepting the inference of this amendment, namely, that the definition of inland waters is that they begin at the shore line or where 3-mile lines from headlands intersect in a bay. There is no support for this type of amendment, other than that it appeals to the Senator from Illinois.
'The committee has struggled with this problem. The committee struggled with several different formulas for defining inland waters. Originally, the joint resolution provided that inland waters should include all bays, sounds, straits, and estuaries. However, there was some objection to that definition by the Department of Justice. The Department of Justice contended that it would be far more preferable not to attempt to define inland waters, but simply to use the words 'inland waters,' to meet the standard that those words would ordinarily suggest. Therefore, at the suggestion of the Department
of Justice, and I suppose with the support of the Department of State, the words 'including all bays, estuaries, straits, and sounds,' were stricken from the joint resolution.
'I submit that the language of the joint resolution is the best agreement that could be reached, upon the advice of the competent officials of the State Department and the Justice Department, as well as the advice that the committee had available to it from all the witnesses who testified, and therefore we should retain the committee language rather than accept the definition of the Senator from Illinois.
'Mr. DANIEL. Is it not true that there are some islands off the main continent which are not as far as 3 miles distant, and that this amendment would confuse the situation with reference to them? * * * We would have to apply this amendment instead of the present rule of inland waters which permits both the Nation and the State to measure from the outer line along those islands.
'Mr. HOLLAND. * * *
'I think I understand what the Senator (Douglas) is trying to attain. What he is trying to attain is in complete accord with the belief of the Senator from Florida, that islands which are far remote from the coast, and clear beyond inland waters by any reasonable conception, have a 3-mile submerged shelf around each of them; and while that fact is clearly shown in the statement of international law furnished to the committee in the last Congress by the Secretary of State at that time, Mr. Dean Acheson, the proposed amendment would not effectuate that situation at all * * *.'
The amendment was defeated 50 to 26. 99 Cong.Rec. 4240—4243.
24
See, e.g., 99 Cong.Rec. 3110—3112 (remarks of Senator Hill).
25
The 1947 case raised the purely legal question—who owned the lands and mineral rights beneath the marginal sea belt? In deciding that they belonged to the United States the court relied heavily on the international responsibilities of the Federal Government.
'But whatever any nation does in the open sea, which detracts from its common usefulness to nations, or which another nation may charge detracts from it, is a question for consideration among nations as such, and not their separate governmental units. What this Government does, or even what the states do, anywhere in the ocean, is a subject upon which the nation may enter into and assume treaty or similar international obligations.' 332 U.S. 19, 35, 67 S.Ct. 1658, 1666, 91 L.Ed. 1889 (footnote omitted). The opinion also established that landlocked waters not a part of the open sea are not part of the marginal belt, and belong to the States. The only problem remaining in the way of actually fixing the location of the marginal belt, and hence the dividing line of ownership between the State and the United States, was that of determining where the open sea ends and landlocked waters begin. The Court specifically left that question unresolved. It is precisely that problem of defining what constitutes open sea and what constitutes inland waters which we must decide in the present case.
Resolution of that question will (1) determine for the present the location of the marginal belt which we claim against other nations, and (2) define the areas within which ships of foreign nations have no right of innocent passage. Unquestionably, the definitions of what constitutes open sea and inland waters is to borrow the words of the 1947 opinion, ' a subject upon which the nation may enter into and assume treaty or similar international obligations.' Negotiations at The Hague beginning in 1930 were directed to just that end, and the Convention on the Territorial Sea and the Contiguous Zone, to which we became a party in 1961, now establishes rules for separating the open sea from inland waters.
26
Letter from Acting Secretary of State Webb to Attorney General McGrath, November 13, 1951, Senate Hearings 460; letter from Secretary of State Acheson to Attorney General McGrath, February 12, 1952, Senate Hearings 462.
27
See n. 5, supra. Neither the Special Master nor the United States treated the Boggs formula as having been the 'definitive' United States position. The Special Master recommended it as an 'appropriate technical method' for measuring the sufficiency of the depth of bays. Report of Special Master 26.
28
See n. 34, infra.
29
Letter from Dean Rusk, Secretary of State, to Robert Kennedy, Attorney General, January 15, 1963, II, International Legal Materials 527.
30
See discussion and legislative history, Part II, supra.
31
See 99 Cong.Rec. 2633 (remarks of Senators Long and Cordon).
32
The Convention was approved by the Senate May 26, 1960, 106 Cong.Rec. 11196, and was ratified by the President March 24, 1961, 44 State Dept.Bull. 609. See Treaties in Force—January 1, 1965, 263.
33
In support of the position that we should ignore the developments in the law and practice of nations respecting the concept of inland waters which have transpired subsequent to the passage of the Submerged Lands Act—a position which the Solicitor General frankly recognized in his oral presentation was not an easy one for the Government to maintain—the United States cites a statement made by Senator Cordon during the hearings.
'Those who prepared the bill over the years took the view—and that is the way the bill is before us—that 'coastline' means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters. That is in the present tense. It is the coastline as of now. We have confirmed here 3 miles from the coastline as of now * * *.
'If we attempt now to discuss a coastline of 1783, or whenever the Revolutionary War was concluded and the treaty was signed—and I do not just now recall the date—if we attempt now to determine a coastline as of then, it would seem to me that we increase our difficulties beyond what, as I understand the bill, we envisioned in the first place, but which we left where by they were.' Senate Hearings 1354—1355.
That statement was made in reply to a suggestion that a State should have the choice of extending its boundaries three miles from its present coastline or three miles from its coastline as of the time it entered the Union. Senator Cordon's reply expresses his opposition to that idea on the ground that the exact location of the ancient shoreline would be extremely difficult to determine. It reveals no intent to restrict the courts in framing the definitions to be used to determine the present coastline.
34
Article 4 of the Convention provides:
'1. In localities where the coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.
'2. The drawing of such baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the re gime of internal waters.
'3. Baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them.
'4. Where the method of straight baselines is applicable under the provisions of paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by a long usage.
'5. The system of straight baselines may not be applied by a State in such a manner as to cut off from the high seas the territorial sea of another State.
'6. The coastal State must clearly indicate straight baselines on charts, to which due publicity must be given.'
35
Letter from Dean Rusk, Secretary of State, to Robert Kennedy, Attorney General, January 15, 1963, II International Legal Materials 527; Brief for the United States in Answer to California's Exceptions 148.
36
The full text of Article 7 is as follows:
'1. This article relates only to bays the coasts of which belong to a single State.
'2. For the purposes of these articles, a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation.
'3. For the purpose of measurement, the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water marks of its natural entrance points. Where, because of the presence of islands, an indentation has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Islands within an indentation shall be included as if they were part of the water areas of the indentation.
'4. If the distance between the low-water marks of the natural entrance points of a bay does not exceed twenty-four miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered as internal waters.
'5. Where the distance between the low-water marks of the natural entrance points of a bay exceeds twenty-four miles, a straight baseline of twenty-four miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length.
'6. The foregoing provisions shall not apply to so-called 'historic' bays, or in any case where the straight baseline system provided for in article 4 is applied.'
37
The parties stated that Crescent City Bay is no longer an area in dispute.
38
The United States asserts that 'international law recognizes no principle of 'fictitious bays." We find it unnecessary to decide that question. The Government states:
'The expression seems to have originated in a proposal by the Committee of Experts, made to the Fifth Session of the International Law Commission, suggesting a 10-mile rule for bays, a general 10-mile limit for straight baselines, providing that baselines should not be drawn to islands more than 5 miles from shore, and limiting baselines to 5 miles in groups of islands or between such groups and the mainland, except that in such a group one opening could be 10 miles. The latter situation was called a 'fictitious bay.' The Special Rapporteur adopted this proposal in an Addendum to the Second Report on the Regime of the Territorial Sea, International Law Commission, Fifth Session, 18 May 1953. English text, U.N.Doc. A/CN.4/61/Add.1, p. 7 and Annex, p. 4. The subject of groups of islands was postponed by the Commission in 1954 (Article 11, Report of the International Law Commission Covering the Work of Its Sixth Session (U.N.Doc. A/CN.4/88), p. 42), and there is no special provision on the subject in the Convention on the Territorial Sea and the Contiguous Zone as finally adopted. The Report of the International Law Commission on the Work of Its Eighth Session, p. 45, fn. 1 (U.N.Doc.A/C.6/L.378), makes clear that the original proposal on the subject was an attempt to formulate a rule and not an expression of a rule already in existence.' Brief for the United States in Answer to California's Exceptions, 149—150, n. 112.
The openings at the ends of the Santa Barbara Channel are 11 miles and 21 miles.
39
See Letter from Acting Secretary of State Webb to Attorney General McGrath, November 13, 1951. Senate Hearings 460. See also Senate Hearings 1084—1085 (remarks of Jack B. Tate).
40
The depth in general ranges between 6 and 12 feet according to Coast and Geodetic Survey Chart No. 1270, but there is no passage as much as 12 feet deep connecting the ends of the sounds. The sounds are 'navigable waters' in the legal sense even in the parts too shallow for navigation. See United States v. Turner, 5 Cir., 175 F.2d 644, 647, cert. denied, 338 U.S. 851, 70 S.Ct. 92, 94 L.Ed. 521.
41
Testimony before the Special Master indicated that the channel provided a substantial amount of protection from the rough seas of the Pacific and was used as an alternate route of passage for ships 'coming down from the Pacific Northwest.' (Tr. 595. See also Tr. 608.) In its appendix, p. 57, California points to a statement in Davidson, Coast Pilot of California, Oregon, and Washington (4th ed. 1889), p. 53, 'The islands break the force of the large westerly swell of the Pacific along the coastline, and in winter afford good lee from the full force of the southeast gales.'
42
See Art. 7, § 6, supra, n. 36.
43
See generally, Juridical Regime of Historic Waters, Including Historic Bays, U.N.Doc. A/CN.4/143 (1962).
44
Article XII of the California Constitution of 1849 described the sea boundary of the State of California as follows:
'* * * thence running west and along said boundary line to the Pacific Ocean, and extending therein three English miles; thence running in a northwesterly direction and following the direction of the Pacific Coast to the 42d degree of north latitude, thence on the line of said 42d degree of north latitude to the place of beginning. Also all the islands, harbors, and bays, along and adjacent to the Pacific Coast.'
45
Ocean Industries, Inc. v. Superior Court, 200 Cal. 235, 252 P. 722 (1927); Ocean Industries, Inc. v. Greene, 15 F.2d 862 (D.C.N.D.Cal.1926) (Monterey Bay). People v. Stralla, 14 Cal.2d 617, 96 P.2d 941 (1939) (Santa Monica Bay). United States v. Carrillo, 13 F.Supp. 121 (D.C.1935) (San Pedro Bay).
46
Historic Bays, U.N.Doc. A/CN.13/1 (1957), and Juridical Regime of Historic Waters, including Historic Bays, U.N.Doc. A/CN.4/143 (1962).
47
E.g., for San Diego County, see Cal.Stat.1850, c. 15, § 2, p. 58; Cal.Stat.1851, c. 14, § 2, p. 172; Cal.Political Code 1872, §§ 3907, 3944; Cal.Political Code 1923, § 3945; Cal.Stat.1919, c. 470, § 38, p. 895; Cal.Stat.1923, c. 160, § 38, p. 361; Cal.Govt.Code § 23137; Cal.Stat.1947, c. 424, p. 1069. For Los Angeles County, see Cal.Stat.1850, c. 15, § 3, p. 59; Cal.Stat.1851, c. 14, § 3, p. 172; Cal.Stat.1856, c. 46, § 1, p. 53; Cal.Political Code 1872, § 3945; Cal.Stat.1919, c. 470, § 20, p. 877; Cal.Political Code 1923, § 3927; Cal.Stat.1923, c. 160, § 20, p. 343; Cal.Govt.Code, § 23119; Cal.Stat.1947, c. 424, p. 1055.
48
See generally, Juridical Regime of Historic Waters, Including Historic Bays, U.N.Doc. A/CN.4/143, 80—105 (1962).
49
The United States Attorney for the Southern District of California participated as an amicus curiae in the Stralla case and supported the position of California. We do not consider this action so significant as to foreclose the United States in the controversy before us. Compare the discussion of actions taken by the Secretary of the Interior in United States v. California, 332 U.S. 19, 39—40, 67 S.Ct. 1658, 1668—1669, 91 L.Ed. 1889.
50
See, e.g., 99 Cong.Rec. 2697 (remarks of Senator Cordon); Senate Hearings 1344—1345, 1353—1358, 1374.
51
See, e.g., Statement of Robert Moses and the discussion following it. Senate Hearings 137.
The United States points by analogy to judicial interpretations of the Swamp Land Act of 1850, 9 Stat. 519, to the effect that it granted only those lands which were swamp at the date of its passage. However, the terms of that Act were specific: '* * * those swamp and overflowed lands * * * which shall remain unsold at the passage of this act, shall be, and the same are hereby, granted * * *'; and it granted lands sovereignty over which had never been thought to change because the nature of the land changed.
1
See Appendix A.
2
See Appendix B, which shows Monterey Bay, one of the bays in question. California claims that all the submerged land and waters landward of the line drawn across the headlands are inland waters within the historic coastline of the State, and that its historic boundary, the outer limit of its rights under the Submerged Lands Act, extends three miles seaward of that line. The United States claims that California owns only a belt of submerged lands within three miles of the low-water mark of the mainland shore.
3
See Appendix C. California claims all the submerged land between the line drawn along the islands from the mainland, and a belt of marginal sea three miles to seaward of that line. The United States contends that California is entitled only to a belt within three miles of the mainland shore and three miles around each of the islands.
4
One geographic (or marine or nautical) mile equals approximately 1.15 statute (or land or English) miles. One marine league equals three geographic miles or approximately 3.45 statute miles.
5
See S.Rep. No. 133, 83d Cong., 1st Sess. (hereafter cited as Senate Report), 21.
6
The Master was asked also to consider what criteria were proper for measuring the ordinary low-water mark on the shore.
7
67 Stat. 29, 43 U.S.C. §§ 1301—1315 (1958 ed.).
8
§ 3, 67 Stat. 29, 30, 43 U.S.C. § 1311 (1958 ed.).
9
§ 2(a)(2), 67 Stat. 29, 43 U.S.C. § 1301(a)(2) (1958 ed.).
10
§ 2(c), 67 Stat. 29, 43 U.S.C. § 1301(c) (1958 ed.).
11
§ 2(a)(2).
12
§ 2(b), 67 Stat. 29, 43 U.S.C. § 1301(b) (1958 ed.). (Emphasis supplied.)
13
Ibid.
14
The constitutional power of Congress to enact the Submerged Lands Act was upheld in Alabama v. Texas, 347 U.S. 272, 74 S.Ct. 481, 98 L.Ed. 689.
15
S.J.Res. 20, 82d Cong., 2d Sess. For a summary of earlier proposed legislation dealing with submerged lands, see United States v. Louisiana, 363 U.S. 1, 6, n. 4, 80 S.Ct. 961, 966, 4 L.Ed.2d 1025.
16
Message from the President, May 29, 1952, S.Doc. No. 139, 82d Cong., 2d Sess.
17
Id., p. 2.
18
S.J.Res. 13, 83d Cong., 1st Sess. A substantially identical bill, H.R. 2948, 83d Cong., 1st Sess., was introduced in the House.
19
67 Stat. 29. (Emphasis supplied.) The latter clause, dealing with the outer Continental Shelf, was added to the original bill in committee.
20
Hearings before the Senate Committee on Interior and Insular Affairs on S.J.Res. 13 and Other Bills, 83d Cong., 1st Sess. (hereafter cited as Senate Hearings), 31—32. (Emphasis supplied.)
21
Senate Hearings 49.
22
Id., 34.
23
Id., 512. Unlike the Truman Administration, the Eisenhower Administration supported legislation to grant mineral rights in submerged offshore lands to the adjacent States.
24
Brief of the State of Texas, United States v. Louisiana, 363 U.S. 1, p. 50, 80 S.Ct. 961, p. 989.
25
See Senate Report 14.
26
Senate Hearings 1378 (Senator Cordon). Compare United States v. Louisiana, 363 U.S. 1, 33, 80 S.Ct. 961, 981.
27
Id., 1053 (Deputy Legal Adviser Tate). Compare United States v. Louisiana, 363 U.S. 1, 30—32, 80 S.Ct. 961, 979—980.
28
Id., 926. Attorney General Brownell suggested that a line be drawn on a map as part of the bill. He said that if the Committee tried 'to describe in words bays or other characteristics of the coast, unnecessary litigation will almost surely result.' Ibid.
29
Senate Hearings 1304.
30
Id., 1378.
31
Id., 1383.
32
Id., 1384.
33
Ibid.
34
Id., 1385.
35
99 Cong.Rec. 2746.
36
Ibid.
37
Id., 2634.
38
Id., 2744. (Emphasis supplied.)
39
Id., 2830.
40
Senate Report 2. (Emphasis supplied.)
41
Id., 18, U.S.Code Cong. and Adm.News 1953, p. 1493. (Emphasis supplied.)
42
Senate Hearings 1211—1229.
43
The Committee Report also reprinted the favorable report of a Senate Committee during a previous session of a bill which the Committee said was 'identical in substance with Senate Joint Resolution 13 as introduced.' Senate Report 49. That earlier report, S.Rep.No.1592, 80th Cong., 2d Sess., as quoted, criticised the California decision for creating great uncertainty as to what areas would be 'inland waters' within the reasoning of the opinion. Under the federal-external-sovereignty reasoning of the California case the Committee saw no clear answer to such questions as:
'At what precise point does a bay become a part of the open sea? Are waters landward of offshore islands inland waters? Are uplands formed by nature subsequent to the date of fixing the lowwater mark subject to 'the paramount power' of the United States as defined by the Court's opinion?' Senate Report 61.
The Committee sought in the legislation to avoid these 'extreme complexities,' ibid., by enacting 'a law consonant with what the States and the Supreme Court believed for more than a century was the law,' ibid., and restoring to the States all their historic property rights both to inland waters and to the marginal sea. The Report said:
'Unless S. 1988 as reported, is enacted, confusion will exist as to the ownership and taxability of, and powers over, bays and the 3-mile belt * * *. We consider it against the public interest for the Federal Government to commence a series of vexatious lawsuits against the sovereign States to recover submerged lands within the boundaries of the States, traditionally looked upon as the property of the States under a century of pronouncements by the Supreme Court reflecting its belief that the States owned these lands.' Id., at 62.
44
Senate Report 18.
45
See infra, p. 212. '(T)he sponsors understood this Court to have established, prior to the California decision, a rule of state ownership itself defined in terms of state territorial boundaries * * *.' United States v. Louisiana, 363 U.S. 1, 19—20, 80 S.Ct. 961, 973.
46
Senate Hearings 1383 (Senator Cordon).
47
99 Cong.Rec. 2984. (Emphasis supplied.
48
Senate Report 18, supra, n. 44.
49
99 Cong.Rec. 4115.
50
Id., at 4114.
51
Ibid.
52
§ 2(b), 67 Stat. 29, 43 U.S.C. § 1301(b) (1958 ed.).
53
See, e.g., 99 Cong.Rec. 2917, 2975—2977, 3040, 3273, 3336 3337, 3381, 3549, 3552—3553, 3655, 3885—3886, 4085.
54
Compare the Outer Continental Shelf Lands Act, 67 Stat. 462, 43 U.S.C. §§ 1331—1343 (1958) ed.), passed the same year, claiming for the United States 'jurisdiction, control, and power of disposition' of all submerged lands seaward of the area granted the States in the Submerged Lands Act.
55
99 Cong.Rec. 4115.
56
Ibid.
57
Ibid. (Emphasis supplied.)
58
See, e.g., Senate Hearings 48—49.
59
99 Cong.Rec. 2746.
60
Id., 3039.
61
Id., 3051.
62
Senate Hearings 48. (Emphasis supplied.)
63
Id., 48—49. (Emphasis supplied.)
64
Id., 50—51.
65
99 Cong.Rec. 4175. See also id., 4477, 4478 (remarks of Senator Daniel).
66
Id., 4240. Senator Douglas said that his amendment was aimed at 'preventing coastal States from pushing their coastal boundaries out to a line along the outer shores of remote islands and claiming everything in between.' Id., 4242.
67
Id., 4241.
68
Id., 4242. An earlier attempt by Senator Douglas and others to strike from the bill reference to the historic boundaries of the States when they entered the Union, and substitute a limitation based on the marginal waters claimed by the Federal Government under international law, had also failed. See 99 Cong.Rec. 3957—3960, 4114. Senator Cordon had objected that the 'net result' of the amendment 'would be that an arbitrary 3-mile limit would be established, rather than to follow the philosophy of the joint resolution itself. The resolution provides that the limit be the statutory boundary with which a State entered the Union, or as such boundary may have been subsequently approved by an act of the Congress.' 99 Cong.Rec. 4106.
Several similar attempts by opponents of the bill to amend it to restrict the States to a belt within three miles of their mainland shores also failed. Senator Monroney introduced an amendment to limit the area restored to the States to three miles seaward of the low-tide mark on the shore. 99 Cong.Rec. 4157. Senator Long, a supporter of the bill (which already contained the two changes which the Court says were fundamental) protested:
'In view of the fact that the Congress has already indicated its intention of vesting in the States proprietary rights within their historic boundaries, does the Senator have any objection to the Court's deciding what the historic boundaries are?' 99 Cong.Rec. 4160.
The proposed amendment was defeated. 99 Cong.Rec. 4203. A similar measure introduced by Senator Magnuson, which he emphasized would have limited the States to the amount of marginal sea which the United States claimed in international relations, was likewise defeated. 99 Cong.Rec. 4473—4478.
69
Senate Report 2.
70
Senate Hearings 1384 (Senator Daniel).
71
Id., 1304 (Senator Cordon).
72
99 Cong.Rec. 4115 (Senator Holland).
73
Id., 4361.
74
H.R. 2948, 83d Cong., 1st Sess. See H.R.Rep. No. 215, 83d Cong., 1st Sess. (hereafter cited as House Report), 3.
75
H.R. 4198, 83d Cong., 1st Sess.
76
Hearings before Subcommittee No. 1, House Committee on the Judiciary on H.R. 2948 and Similar Bills, 83d Cong., 1st Sess., 219—220.
77
House Report 14.
78
99 Cong.Rec. 2504.
79
Id., 2567.
80
Id., 4897.
81
Ibid. (Emphasis supplied.)
82
Article XII of the California Constitution of 1849, approved when the State was admitted to the Union (Act of Sept. 9, 1850, 9 Stat. 452), provides:
'The boundary of the State of California shall be as follows:
'Commencing at the point of intersection of forty-second degree of north latitude with the one hundred and twentieth degree of longitude west from Greenwich, and running south on the line of said one hundred and twentieth degree of west longitude until it intersects the thirty-ninth degree of north latitude; thence running in a straight line in a southeasterly direction to the river Colorado, at a point where it intersects the thirty-fifth degree of north latitude; thence down the middle of the channel of said river to the boundary-line between the United States and Mexico, as established by the treaty of May 30, 1848; thence running west and along said boundary-line to the Pacific Ocean, and extending therein three English miles; thence running in a northwesterly direction, and following the direction of the Pacific coast, to the forty-second degree of north latitude; thence on the line of said forty-second degree of north latitude to the place of beginning. Also all the islands, harbors, and bays along and adjacent to the Pacific coast.' (Emphasis supplied.) H.R.Doc. No. 357, 59th Cong., 2d Sess., 405.
California contends that the inclusion of the islands off the shore also includes within the boundaries all waters between the islands and the mainland.
83
Reproduced in part in Appendix D, infra.
84
The brief of the United States Attorney, filed sub nom. People v. Adams, is reprinted as Appendix 3 to the Brief for the State of California in the Proceedings Before the Special Master, pp. 6—22.
| 910
|
381 U.S. 252
85 S.Ct. 1389
14 L.Ed.2d 370
WATERMAN STEAMSHIP CORP., Petitioner,v.UNITED STATES.
No. 245.
Argued April 26 and 27, 1965.
Decided May 17, 1965.
Rehearing Denied Oct. 11, 1965.
See 86 S.Ct. 17.
[Syllabus from pages 252-253 intentionally omitted]
John W. McConnell, Jr., Mobile, Ala., for petitioner.
Paul Bender, Asst. Sol. Gen., Dept. of Justice, Washington, D.C., for respondent, pro hac vice, by special leave of Court.
Mr. Justice GOLDBERG delivered the opinion of the Court.
1
This case involves the tax consequences of the purchase by petitioner of a number of ships from the United States Government during the Second World War and the subsequent post-war refund by the Government, pursuant to an Act of Congress, of a substantial portion of the purchase price.
2
At various times during the years 1942 through 1946, petitioner purchased from the United States Maritime Commission a total of 18 ships that had been built by the United States Government. It paid a total of $46,973,167 for these vessels (after an allowance for the trade-in by petitioner of four of its own ships).1 The vessels purchased by petitioner were immediately chartered back, by bareboat charters, to the United States so that the Government continued to operate them.2 The United States paid a total of $13,430,431 in charter hire to petitioner for the wartime use of these ships during the years 1942 through 1946, which amount petitioner reported in its federal income tax returns for those years.
3
On March 8, 1946, Congress enacted the Merchant Ship Sales Act of 1946, 60 Stat. 41, as amended, 50 U.S.C.App. § 1735 et seq. (1958 ed.), which gave American citizens the right to purchase warbuilt ships from the United States as statutory sales prices which were substantially below the prices at which such vessels were sold by the Commission during the war. Section 9 of the Act, 50 U.S.C.App. § 1742 (1958 ed.), provided the opportunity, upon application, for those, like petitioner, who had bought ships during the war years to obtain a downward adjustment in their sales price 'by treating the vessel as if it were being sold to the applicant on the date of the enactment of this Act (March 8, 1946), and not before that time.' The details of a § 9 adjustment are complex. They consist, however, essentially of two parts: (1) an adjustment in the purchase price down to the new statutory price (§§ 9(b)(1)—(4)); and (2) an unwinding of the transactions, including tax payments, that occurred as a result of the sale prior to 1946 (§§ 9(b)(5), (6), (c)(1)).3
4
Petitioner applied for a downward adjustment of the sales price of its 18 ships purchased prior to the Act. The Maritime Commission granted such an adjustment, determining that under the statute the sales price of these vessels should be $17,685,424.4 Petitioner therefore was credited with $29,287,743, the difference between the statutory sales price and the original price of $46,973,167.5
5
The pre-Act transactions were then unwound, pursuant to the statute, as follows: (1) the Government was credited $13,430,431, representing the charter hire which had been paid by the Government to petitioner for use of the 18 vessels from 1942 to 1946;6 (2) the Government was debited $1,495,125, representing charter hire which would have been paid by the Government to petitioner prior to 1946 for use of the four ships traded in by petitioner on the original purchase; (3) the Government was debited $2,686,262, representing a return of the interest petitioner paid on the mortgages and interest income which petitioner could have earned on the cash invested in the 18 vessels prior to the date of the Act had this cash not been so committed; and (4) the Government was debited $430,206, representing an overpayment by petitioner of federal income taxes, which, under the Act, were recalculated to give effect to the foregoing unwinding.7 The sum of the unwinding credits and debits was a net credit in favor of the Government of $8,818,838. This amount reduced petitioner's credit on the original sales price of $46,973,167 from $29,287,743 to $20,468,904.8
6
In tabular form, the computations and credits made under the Act were as follows:
7
Statutory Adjustments.
8
1. Original sales price.................. $46,973,167
9
2. Statutory sales price................. 17,685,424
-----------
3. Gross sales price adjustment
10
(§§ 9(b) (1)-(4) and (7))....... $29,287,743
4. Credit to Government:
5. Charter hire on 18 vessels
11
(§ 9(b) (6))...................... 13,430,431
6. Debits against Government:
7. Charter hire on 4 ships traded in
12
(§ 9(b) (6))...................... (1,495,125)
8. Interest on petitioners' investment
13
(§ 9(b) (5))...................... (2,686,262)
9. Overpayment by petitioner of federal
14
income taxes (§ 9(b) (8)).
10. Net credit in favor of Government
15
(line 5 minus line 7-9)............... 8,818,838
11. Net 1946 sales price adjustment
(line 3 minus line 10)................ $20,468,9049
Neither party here disputes the accuracy of any of these computations. The issue between the parties is the effect of these determinations on the tax treatment of the ships for the years following this 1946 adjustment. In its federal income tax returns for the years 1947 through 1950 petitioner took depreciation on these vessels on the assumption that its cost was $17,685,424, the statutory sales price. In 1959, however, petitioner sued in the United States District Court for the Southern District of Alabama for a tax refund, contending that its real cost and therefore its basis for depreciation was not the statutory sales price, $17,685,424, but rather $26,504,263, the difference between $46,973,167, the original sales price, and $20,468,904, the net 1946 sales price adjustment credited to petitioner. The District Court agreed with petitioner that its real cost was $26,504,263 and that this was its depreciation basis for tax purposes. 203 F.Supp. 915. The Court of Appeals for the Fifth Circuit reversed, however, holding that, under the statutory scheme, petitioner's real cost was $17,685,424, the statutory sales price, and that this therefore was its proper depreciation basis. 330 F.2d 128. The difference between the lower courts' determinations of the real cost to petitioner of these 18 ships is $8,818,838,10 the net credit in favor of the Government in the preceding calculations of the 1946 sales price adjustment. We granted certiorari, 379 U.S. 927, 85 S.Ct. 321, to resolve a conflict between Courts of Appeals and the Court of Claims on the issue here involved.11 For the reasons set forth below, we agree with the Court of Appeals in this case and consequently affirm the judgment.
Petitioner's argument, put quite simply, is that during the war it paid $46,973,167 for the ships. In 1946, petitioner asserts, it was paid back $20,468,904. Thus petitioner concludes that its cost and therefore its depreciation basis for tax purposes in these ships is the difference between these two figures, or $26,504,263.12 The Government agrees that petitioner paid $46,973,167 during the war and received back $20,468,904 in 1946. It points out, however, that from 1942 through 1946 petitioner also received from the Government in charter hire for the use of the ships, a net of $8,818,838 (the net credit to the Government under the unwinding provisions of the Act), which petitioner would not have received had it not bought these ships prior to the date of the Act. The Government contends that when this $8,818,838 paid to petitioner from 1942 to 1946 is added to the amount of $20,468,904 paid as a lump sum to petitioner in 1946, it is clear that petitioner has received a total of $29,287,743,13 from the Government. The Government concludes that petitioner's cost and therefore its basis for depreciation for tax purposes in these ships is the difference between the original sales price, $46,973,167, and this total refund, $29,287,743, or $17,685,424—the statutory sales price. Petitioner cannot and does not dispute the fact that it received this $8,818,838 from the Government from 1942 through 1946. It argues, however, that this sum was received as income and thus cannot be taken to reduce petitioner's cost. The Government, on the other hand, contends that, although the $8,818,838 was undoubtedly originally received as income, under the statutory unwinding scheme this amount must be deemed a return of capital which has reduced petitioner's cost. The only issue dividing the parties, therefore, is the proper treatment of this $8,818,838, an issue which must be determined by reference to the 1946 Act.14
Section 9 of the Merchant Ship Sales Act of 1946 expressly provides that, upon application, a statutory adjustment 'shall be made, as hereinafter provided, by treating the vessel as if it were being sold to the applicant on the date of the enactment of this Act (March 8, 1946), and not before that time.' It is clear that if petitioner had bought the ships on the date of the Act its cost and depreciation basis would have been the statutory sales price of $17,685,424 and that petitioner would not have received net charter hire from the Government of $8,818,838—a payment attributable to the fact that the vessels involved were sold to it before the date of the 1946 Act.15
In order to achieve the statutory purpose of putting petitioner and the Government in the positions they would have occupied had petitioner bought the ships on the 1946 statutory enactment date and not before that time, it was necessary that this $8,818,838 net charter hire be refunded to the Government. In effect this is just what § 9 provides. As applied to this case, petitioner was first credited with $29,287,743, the difference between the original sales price, $46,973,167, and the lower statutory sales price, $17,685,424. The Government owed this amount of $29,287,743 to petitioner. Because of the unwinding of the pre-Act transactions pursuant to the statutory scheme, however, the Government was credited with $8,818,838, representing the net amount, after appropriate tax adjustments, which petitioner received from the United States Government from 1942 through 1946 over and above the amount which it would have earned had it not purchased the ships from the Government prior to the statutory adjustment date. Petitioner owed this amount of $8,818,838 to the Government.
The Government could have paid its obligation to petitioner by its check in the amount of $29,287,743. Petitioner, in turn, could have paid its obligation to the Government by its check in the amount of $8,818,838. Obviously, it makes no difference that this same result was reached through an offsetting of the mutual debts which resulted in a net credit to petitioner of their difference $20,368,904.16 Thus petitioner is correct in its assertion that it only received $20,468,904 as a lump sum payment in 1946. It is not correct, however, in its assertion that this was the total amount it received in repayment of the sales price. The total it received was $29,287,743; it received $20,468,904 of this amount in a lump sum in 1946 and $8,818,83817 in the years 1942 through 1946 in government payments which it would not have received had it not owned the ships during those years—an ownership which the statute unwinds. This $29,287,743 total refund must be credited against petitioner's original cost of $46,973,167, producing a net cost to petitioner and thus a basis for depreciation of $17,685,424—the statutory sales price.18
In order to give effect to the statutory scheme, therefore, this $8,818,838 must be treated not as income but as a return of capital against the original $46,973,167 purchase price. That this is the proper way of treating this amount for tax purposes is made clear by the statutory language which directs recomputation of an applicant's federal income taxes based upon the unwinding of the pre-Act transactions. As a condition of receiving an adjustment under the Act, § 9(c)(1) requires the applicant to agree (1) that the charter hire actually received from the United States for the ships prior to the Act 'shall be treated for Federal tax purposes as not having been received or accrued as income' (emphasis added); (2) that 'depreciation and amortization allowed or allowable with respect to the vessel up to the date of the enactment of this Act for Federal tax purposes shall be treated as not having been allowable'; and (3) that the return of interest paid on the mortgages plus the income attributed to the applicant which it would have received as charter hire on the ships traded in and interest on the cash invested which it could have earned had it not bought the ships prior to the date of the Act 'shall be treated for Federal Tax purposes as having been received and accrued as income * * *.' The net sum derived from these tax computations is assigned as a credit to the party in whose favor they run, and payment of this credit is explicitly deemed to constitute payment of the tax overpayment or deficiency created by the recomputations. (§ 9(b)(8)).
All of these provisions, as we have already stated, were given effect in this case. Pursuant to agreement between petitioner and the Government, petitioner's federal income taxes were recomputed on the statutory assumptions that it did not receive the charter hire on the 18 vessels purchased from the Government from 1942 through 1946, but did receive charter hire on the four ships it traded in and interest on its investment in the 18 ships during this period. Based on this recalculation, petitioner was held entitled to a tax refund of $430,206, for which the Government was debited in the unwinding computations. See the table on p. 257, supra. The total impact of these tax provisions makes it quite clear that the net amount the Government paid to petitioner as a result of its owning the ships prior to 1946, $8,818,838, as the statute specifically states, 'shall be treated for Federal Tax purposes as not having been received or accrued as income,' but rather shall be treated as a repayment of the purchase price, or, in other words, a return of capital reducing basis. Moreover, the result contended for by petitioner would produce the anomaly that, due to the unwinding calculations, there is no income tax paid or to be paid on the $8,818,838 which petitioner claims is income earned during 1942 to 1946. This anomaly is only avoided if, as Congress obviously intended, this amount be treated not as income but rather as a return of capital.
Furthermore, petitioner's argument is necessarily predicated on the theory that, although the original acquisition cost of the ships should, under the statutory scheme, be adjusted to the lower 1946 price, nevertheless, petitioner's cost as a basis for depreciation should remain the higher one determined on the assumption that the ships were purchased not in 1946 but at the time of their original acquisitions, dating back to 1942. It could only be under such a theory that the $8,818,838 net charter hire received by petitioner from the Government could be considered to be income and not a return of capital. But the Act vitiates any such theory in its express statement that the statute treats 'the vessel as if it were being sold to the applicant on the date of the enactment of this Act, and not before that time.' Nothing in the language or legislative history of the Act supports petitioner's contention that this statutory treatment was to apply to give petitioner a lower actual cost of acquisition but that the contrary treatment sought by petitioner was to apply to give statutory treatment was to apply to give for depreciation purposes.
Indeed, our conclusion derived from the plain words of the statute is confirmed fully by the legislative history of the Act. As originally reported out of the House Committee on the Merchant Marine and Fisheries, see H.R.Rep.No.831, 79th Cong., 1st Sess., U.S.Code Cong. Service 1946, p. 1086, and the Senate Committee on Commerce, see S.Rep.No.807, 79th Cong., 1st Sess., the bill contained petitioner's assumption that the sale took place not on the date on the Act, but at its original date and at the lower statutory sales price. On the floor of the House, however, a committee amendment was proffered and accepted which rejected this assumption and premised the operation of § 9 on the contrary assumption that the sale took place on the date of the enactment of the Act and not before. 91 Cong.Rev. 9281. This committee amendment is the version of the Act that was enacted into law. See H.R.Conf.Rep.No.1526, 79th Cong., 2d Sess., 17.
Representative (now Senator) Henry Jackson, the manager of the committee amendments on the House floor, explained it as follows:
'Section 9 of H.R. 3603 provides for a refund to operators who purchased vessels during the war, at war cost, back to the statutory sales price contained in section 3 of the bill. Such an adjustment is fair. We do not want to place the wartime purchaser at a disadvantage with his competitor who acquires a similar vessel under the provisions of this bill.
'However, section 9 contains many loopholes which in my opinion places the wartime purchaser in a far better position than future purchasers. For one thing, the wartime purchaser, under section 9, would be allowed trade-in allowances far in excess of those rpovided under the committee amendment to section 8.
'If there is to be equality between past and future purchases there must be comparable terms and nothing less. * * *
'I have proposed certain modifications to section 9 of H.R. 3603 which has been accepted as a committee amendment. The effect of this amendment is to treat prior sales as having taken place on the date of the enactment of this bill. The operator is compensated for all actual money investment to date by an allowance of 3 1/2 percent interest thereon.
'The committee amendment treats all of these prior sales as being made on the date of the bill's enactment and not before that time, so that the previous purchaser and a future purchaser will be put on exactly the same basis. In order to accomplish this result it is necessary to 'unwind' a previous transaction, and most of the provisions of the committee amendment which appear complicated are the provisions describing how this unwinding is to be done.
'These are the provisions which the amendment includes for the purpose of unwinding the previous transaction. The basic principle of the amendment is very simple—the previous transaction is to be looked upon as having taken place not when it actually did but as taking place on the date of the bill's enactment and subject to all of the bill's provisions. * * *' (Emphasis added.) 91 Cong.Rec. 9182, 9185, 9282.
Treating pre-Act and post-Act purchasers as having the same tax basis in the vessels—the statutory sales price—serves the congressional purpose of putting the two groups 'on exactly the same basis.' Otherwise, pre-Act purchasers, with a higher basis for federal income tax purposes, would have competitive advantages over post-Act purchasers in the ability of pre-Act purchasers to take higher depreciation deductions from income, thus paying lower taxes on the same income than their post-Act purchaser competitors. In fact, this advantage over post-Act purchasers is exactly what petitioner seeks in this case. Both petitioner and a post-Act purchaser of comparable ships would pay a statutory sales price of $17,685,424. Yet petitioner seeks a depreciation basis of $26,504,263 while the post-Act purchaser would only have a basis of $17,685,424. This varying result is prohibited by the statute.
Petitioner argues, however, that the Senate predecessor to § 9 of the 1946 Act contained an express provision that, if an adjustment in the purchase price is made for a pre-Act purchaser, for purposes of federal income taxes, 'the vessel shall be considered as having been acquired at the adjuster purchase price (the statutory sales price) * * *.' See § 9(e)(1) of H.R. 3603, as amended by the Senate Committee on Commerce, 79th Cong., 1st Sess., 91 Cong.Rec. 11535. Petitioner states that this provision, which would confirm the result here contended for by the Government, was eliminated from the version of the Act that was finally adopted. From these facts, petitioner would have us infer that Congress rejected the notion that the statutory sales price should be the cost basis of the ships for depreciation. This contention of petitioner, however, completely overlooks the fact that the provision upon which petitioner relies was in an early version of the bill which at that time was premised not on the assumption finally accepted that the sales took place on the 1946 statutory enactment date, but rather on the contrary theory that the sales took place at the statutory prices but on their original dates. On this latter assumption which the bill then contained, the express provision of the Senate bill was necessary to prevent the very result for which petitioner now contends. However, as we have already pointed out, in the legislative consideration of the bill as finally enacted, the early version of the bill premised on the assumption that the sales took place at their original dates was rejected and the bill revised to embrace the contrary assumption that the sales took place at the date of the enactment of the Act and not before that time. See pp. 264—266, supra. Once this revision in the bill's basic approach was made there was no longer any necessity to provide, as the earlier Senate version had, that for tax or any other specific purpose 'the vessel shall be considered as having been acquired at the * * * (statutory sales) price * * *.' For in the bill as finally enacted, it was expressly provided that the vessel is to be treated 'as if it were being sold to the applicant on the date of the enactment of this Act, and not before that time,' and explicit provision was made for unwinding all pre-Act transactions, including taxes. We therefore reject this argument of petitioner.
Finally, petitioner argues that the congressional history subsequent to the enactment of the 1946 statute supports its interpretation of the Act. In 1950, Congress passed an amendment to the 1946 Act, designed to provide precisely the tax result here contended for by petitioner.19 This amendment, however, was vetoed by President Truman. While both House and Senate Committee Reports contain statements that this amendment was deemed simply a clarifying one which expressed the intent of the original Act, see H.R.Rep.No.1342, 81st Cong., 1st Sess., 1; S.Rep.No.1915, 81st Cong., 2d Sess., 1, it was vetoed by President Truman on the ground that, on the contrary, he considered it to vitiate the intent of Congress in enacting the 1946 Act. The President's veto message stated:
'(O)ther provisions of the Merchant Ship Sales Act already provide that for certain purposes the cost basis of the vessels owned by prior purchasers shall be the statutory sales price. The consistent pattern of treatment provided in the act would be destroyed by granting in this one subsection the concession on cost basis entailed in this measure. Finally, the benefits accruing to prior purchasers, if they are allowed to capitalize these amounts above the statutory sales price, would afford them the special operating advantages which arise from the higher depreciation allowances possible under this measure.' 96 Cong.Rec. 15792.
Thus, it is apparent that the President and Congress disagreed over the meaning of a law passed by a prior Congress, and that the President, deeming the amendment to depart from the purpose of the original statute, refused to approve it so that the amendment was not enacted into law. This Court has pointed out on previous occasions that 'the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.' United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 332, 4 L.Ed.2d 334; United States v. Philadelphia National Bank, 374 U.S. 321, 348—349, 83 S.Ct. 1715, 1733, 10 L.Ed.2d 915. This is particularly true where a President (the same President who signed the original Act) vetoes a 'clarifying' amendment on the grounds that, in his view, it does not clarify but rather vitiates the intent of the Congress that passed the original Act. As this Court held in Fogarty v. United States, 340 U.S. 8, 71 S.Ct. 5, 95 L.Ed. 10 in considering a similar situation, the abortive action of the subsequent Congress 'would not supplant the contemporaneous intent of the Congress which enacted the * * * Act.' Id., at 14, 71 S.Ct. at 8. See also United States v. Wise, 370 U.S. 405, 411, 82 S.Ct. 1354, 1358, 8 L.Ed.2d 590.
For all the reasons set forth above, we conclude that, under the statutory scheme which unwinds the pre-Act transactions, petitioner's real cost and thus its basis for depreciation was the statutory sales price of $17,685,424.20 Consequently, the judgment of the Court of Appeals is affirmed.
Affirmed.
APPENDIX TO OPINION OF THE COURT.
Section 9 of the Merchant Ship Sales Act of 1946, 60 Stat. 46, 50 U.S.C.App. § 1742 (1958 ed.), provides in relevant part:
'Sec. 9. (a) A citizen of the United States who on the date of the enactment of this Act—
'(1) owns a vessel which he purchased from the Commission prior to such date, and which was delivered by its builder after December 31, 1940; * * *
'shall, except as hereinafter provided, be entitled to an adjustment in the price of such vessel under this section if he makes application therefor, in such form and manner as the Commission may prescribe, within sixty days after the date of publication of the applicable prewar domestic costs in the Federal Register under section 3(c) of this Act. * * *
'(b) Such adjustment shall be made, as hereinafter provided, by treating the vessel as if it were being sold to the applicant on the date of the enactment of this Act, and not before that time. The amount of such adjustment shall be determined as follows:
'(1) The Commission shall credit the applicant with the excess of the cash payments made upon the original purchase price of the vessel over 25 per centum of the statutory sales price of the vessel as of such date of enactment. If such payment was less than 25 per centum of the statutory sales price of the vessel, the applicant shall pay the difference to the Commission.
'(2) The applicant's indebtedness under any mortgage to the United States with respect to the vessel shall be adjusted.
'(3) The adjusted mortgage indebtedness shall be in an amount equal to the excess of the statutory sales price of the vessel as of the date of the enactment of this Act over the sum of the cash payment retained by the United States under paragraph (1) plus the readjusted trade-in allowance (determined under paragraph (7)) with respect to any vessel exchanged by the applicant on the original purchase. The adjusted mortgage indebtedness shall be payable in equal annual installments thereafter during the remaining life of such mortgage with interest on the portion of the statutory sales price remaining unpaid at the rate of 3 1/2 per centum per annum.
'(4) The Commission shall credit the applicant with the excess, if any, of the sum of the cash payments made by the applicant upon the original purchase price of the vessel plus the readjusted trade-in allowance (determined under paragraph (7)) over the statutory sales price of the vessel as of the date of the enactment of this Act to the extent not credited under paragraph (1).
'(5) The Commission shall also credit the applicant with an amount equal to interest at the rate of 3 1/2 per centum per annum (for the period beginning with the date of the original delivery of the vessel to the applicant and ending with the date of the enactment of this Act) on the excess of the original purchase price of the vessel over the amount of any allowance allowed by the Commission on the exchange of any vessel on such purchase; the amount of such credit first being reduced by any interest on the original mortgage indebtedness accrued up to such date of enactment and unpaid. Interest so accrued and unpaid shall be canceled.
'(6) The applicant shall credit the Commission with all amounts paid by the United States to him as charter hire for use of the vessel (exclusive of service, if any, required under the terms of the charter) under any charter party made prior to the date of the enactment of this Act, and any charter hire for such use accrued up to such date of enactment and unpaid shall be canceled; and the Commission shall credit the applicant with the amount that would have been paid by the United States to the applicant as charter hire for bare-boat use of vessels exchanged by the applicant on the original purchase (for the period beginning with date on which the vessels so exchanged were delivered to the Commission and ending with the date of the enactment of this Act).
'(7) The allowance made to the applicant on any vessel exchanged by him on the original purchase shall be readjusted so as to limit such allowance to the amount provided for under section 8.
'(8) There shall be subtracted from the sum of the credits in favor of the Commission under the foregoing provisions of this subsection the amount of any overpayments of Federal taxes by the applicant resulting from the application of subsection (c)(1), and there shall be subtracted from the sum of the credits in favor of the applicant under the foregoing provisions of this subsection the amount of any deficiencies in Federal taxes of the applicant resulting from the application of subsection (c)(1). If, after making such subtractions, the sum of the credits in favor of the applicant exceeds the sum of the credits in favor of the Commission, such excess shall be paid by the Commission to the applicant. If, after making such subtractions, the sum of the credits in favor of the Commission exceeds the sum of the credits in favor of the applicant, such excess shall be paid by the applicant to the Commission. Upon such payment by the Commission or the applicant, such overpayments shall be treated as having been refunded and such deficiencies as having been paid.
'For the purposes of this subsection, the purchase price of a vessel on account of which a construction-differential subsidy was paid or agreed to be paid under section 504 of the Merchant Marine Act, 1936, as amended, shall be the net cost of the vessel to the owner.
'(c) An adjustment shall be made under this section only if the applicant enters into an agreement with the Commission binding upon the citizen applicant and any affiliated interest to the effect that—
'(1) depreciation and amortization allowed or allowable with respect to the vessel up to the date of the enactment of this Act for Federal tax purposes shall be treated as not having been allowable; amounts credited to the Commission under subsection (b)(6) shall be treated for Federal tax purposes as not having been received or accrued as income; amounts credited to the applicant under subsection (b)(5) and (6) shall be treated for Federal tax purposes as having been received and accrued as income in the taxable year in which falls the date of the enactment of this Act * * *.'
('Secretary,' meaning Secretary of Commerce, was substituted for 'Commission' in the above statute, except where otherwise indicated by the context, on authority of 1950 Reorg.Plan No. 21, effective May 24, 1950, 15 Fed.Reg. 3178, 64 Stat. 1273.)
1
The total purchase price (without trade-in allowance) was $49,582,767. The trade-in allowance was $2,609,600. The net purchase price of $46,973,167 consisted of a cash payment of $6,449,107 and mortgage indebtedness of $40,524,060. For simplicity in this opinion, the $46,973,167 purchase price will be considered as if it had all been paid in cash.
2
The last two vessels purchased by petitioner were delivered on February 27, 1946, and March 11, 1946, respectively, one just before and the other just after the date (March 8, 1946) of the Merchant Ship Sales Act of 1946, 60 Stat. 41, as amended, 50 U.S.C.App. § 1735 et seq. (1958 ed.), and thus were not chartered to the Government before the Act.
3
Section 9, in relevant part, is set out in the Appendix to this opinion.
4
As with the original purchase price, this figure is after an allowance for the four vessels traded in. The statutory price (without trade-in allowance) was $17,997,981. The trade-in allowance (determined under § 9(b)(7) was $312,557. For simplicity, in the remainder of this opinion, the figures used for both the original sales price and the statutory sales price will be those of the price after these respective trade-in allowances.
5
The total $29,287,743 purchase price credit was comprised of a cash credit of $11,735,951 and a reduction of mortgage indebtedness of $17,551,792. As with the original purchase price, see note 1, supra, for simplicity this total credit will be considered as if it were all a cash credit.
6
See note 2, supra.
7
This recalculation included a readjustment of previous depreciation allowed.
8
The figure $20,468,904 is one dollar smaller than the difference between $29,287,743 and $8,818,838. This discrepancy is caused by the omission from the calculation of figures of amounts less than one dollar. This net credit of $20,468,904 was divided into a cash credit to petitioner of $2,917,112 and a reduction of the mortgage indebtedness by $17,551,792. Again, for simplicity, this 1946 net credit will be considered as if it were all a cash credit. See notes 1 and 5, supra.
9
See note 8, supra.
10
See note 14, infra.
11
The Court of Appeals for the Third Circuit agrees with the result of the Court of Appeals in this case. See National Bulk Carriers, Inc. v. United States, 3 Cir., 331 F.2d 407. However, these decisions conflict with that of the Court of Claims in Socony Mobil Oil Co. v. United States, 287 F.2d 910, 153 Ct.Cl. 638, upon which the District Court in the instant case relied.
12
As stated in note 1, supra, the original purchase price of $46,973,167 consisted of a $6,449,107 cash payment and $40,524,060 in mortgage indebtedness. By the statutory enactment date of March 8, 1946, petitioner had paid an additional $9,786,339 on the mortgage. At that date therefore the original $46,973,167 purchase price consisted of a cash payment of $16,235,446 and a now reduced mortgage indebtedness of $30,737,721. As stated in note 8, supra, the 1946 payment to petitioner was comprised of a cash credit of $2,917,112 and a reduction of the mortgage indebtedness by $17,551,792. Thus under petitioner's calculations, after the 1946 adjustment its cost of the vessels was the sum of its cash investment of $13,318,334 ($16,235,446 minus $2,917,112) and its mortgage indebtedness of $13,185,929 ($30,737,721 minus $17,551,792), or 26,504,263.
13
See note 8, supra.
14
The figure of $8,818,838 is one dollar lower than the difference between the basis figures as asserted by the two parties. This discrepancy is brought about by the fact that all figures have been rounded off to dollar amounts. Also, the asserted basis figures given in the text are based upon the parties' contentions as to the correct cost figure for the 18 ships. They do not take into account the undisputed figure of $175,876 which represents the basis of the four ships traded in and which both parties agree should be added to their respective cost bases as given in text. In tabular form, the tax contentions are as follows:
Government Petitioner
1. Original sales price. $46,973,167 $46,973,167
2. Net charter payments by the Government to
petitioner from 1942-1946 (8,818,838) (.........)
3. Lump sum payment by Government to
petitioner in 1946. (20,468,904) ($20,468,904)
6. Basis as of March 8, 1946 $17,861,300 $26,680,139
15
As we have already discussed, this $8,818,838 represents the $13,430,431 charter hire which petitioner received from the Government because it owned these ships during the war, as offset by debits to the Government and credits to petitioner representing the charter hire which petitioner would have received on its four ships which it traded in, interest on petitioner's investment in the ships during this period, and a refund of income taxes paid on this unwound charter hire.
16
See note 8, supra.
17
See note 8, supra.
18
As noted above, notes 1, 5, 8, 12, supra, these figures are stated on the basis that the whole transaction was for cash. The same result is achieved, however, when the transaction is viewed on the mortgage basis as set forth in note 12, supra. When this is done the $8,818,838 is seen as a cash payment by the Government to petitioner which must be credited against its asserted net cash investment of $13,318,334, reducing it to $4,499,496. On this basis, petitioner's cost therefore is its net cash investment of $4,499,496 plus its mortgage indebtedness of $13,185,929, or $17,685,424—the statutory sales price. (Again there is a one-dollar discrepancy because of the rounding off of all figures to dollar amounts.)
19
The amendment provided, as an addition to subsection 9(b) of the Act:
'From and after March 8, 1946, the cost basis of a vessel in respect of which the price adjustment is made shall be the underpreciated original purchase price reduced by the net amount of such adjustment in favor of the applicant resulting from the application of all of the foregoing provisions of this subsection.' See H.R.Rep. No. 1342, 81st Cong., 1st Sess., 5; S.Rep. No. 1915, 81st Cong., 2d Sess., 5.
20
See note 14, supra.
| 1112
|
381 U.S. 355
85 S.Ct. 1557
14 L.Ed.2d 681
Mardon R. WALKERv.GEORGIA.
No. 1072.
Supreme Court of the United States
May 24, 1965
Jack Greenberg, James M. Nabrit III and Donald L. Hollowell, for petitioner.
Lewis R. Slaton and Carter Goode, for respondent.
On Petition for Writ of Certiorari to the Supreme Court of Georgia.
PER CURIAM.
1
The petition for writ of certiorari is granted and the judgment is reversed. Hamm v. City of Rock Hill and Lupper v. State of Arkansas, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300.
2
Mr. Justice STEWART would vacate the judgment and remand the case to the Supreme Court of Georgia for reconsideration in the light of supervening federal legislation, in accordance with the views expressed in his dissenting opinion in Hamm v. City of Rock Hill, 379 U.S. 306, 326, 85 S.Ct. 384, 396, 13 L.Ed.2d 300.
3
Mr. Justice BLACK, Mr. Justice HARLAN, and Mr. Justice WHITE would affirm the judgment of the Supreme Court of Georgia for the reasons stated in thier dissenting opinions in Hamm v. City of Rock Hill, 379 U.S. 306, 318, 322, 327, 85 S.Ct. 384, 392, 394, 397, 13 L.Ed.2d 300.
| 12
|
381 U.S. 279
85 S.Ct. 1459
14 L.Ed.2d 383
FEDERAL COMMUNICATIONS COMMISSION, Petitioner,v.Taft B. SCHREIBER et al.
No. 482.
Argued April 27, 1965.
Decided May 24, 1965.
[Syllabus from pages 279-280 intentionally omitted]
John W. Douglas, Washington, D.C., for petitioner.
Allen E. Susman, Beverly Hills, Cal., for respondents.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
At issue in this case are the extent of the Federal Communications Commission's authority to promulgate procedural standards for determining whether testimony taken and documents produced during an investigatory proceeding should be accorded confidential treatment, and the scope of judicial review of determinations made pursuant to such standards.
2
This case had its origin in a subpoena and various orders issued during the course of an investigatory proceeding conducted by the Federal Communications Commission pursuant to § 403 of the Communications Act of 1934, as amended, 48 Stat. 1094, 47 U.S.C. § 403 (1958 ed.).1 The proceeding, financed by specific congressional appropriation,2 was initiated on February 26, 1959, and had as its objective the gathering of
3
'comprehensive information concerning the respective roles played by the networks, advertisers, agencies, talent, film producers and distributors, and other major elements in the television industry.'3
4
As an initial step in the investigation, the Commission ordered that an
5
'inquiry be made to determine the policies and practices pursued by the networks and others in the acquisition, ownership, production, distribution, selection, sale and licensing of programs for television exhibition, and the reasons and necessity in the public interest for said policies and practices * * *.'4
6
The Commission authorized its chief hearing examiner to conduct the investigation. He was empowered, inter alia, to subpoena witnesses, compel their attendance, and require the production of any records or documents deemed relevant to the inquiry.5 The Commission ordered that
7
'said investigatory proceeding shall be a public proceeding except that the said presiding officer may order non-public sessions of the said investigatory proceeding where and to the extent that the public interest, the proper dispatch of the business of said proceeding, or the ends of justice will be served thereby.'6
8
In October 1960, public sessions were held in Los Angeles, California, at which time evidence was received concerning the functions, policies and practices of television companies, talent agencies and representatives, program 'packagers,'7 sales representatives, and others. On October 17, 1960, the Presiding Officer issued a subpoena duces tecum to respondent Schreiber, a Vice President of respondent Music Corporation of America, Inc. (MCA)—one of the largest packagers and producers of network television programs,8 directing him to appear at the hearing and to produce certain documents described in the annexes to the subpoena. Respondent Schreiber appeared and produced the material specified in Annex A.9 He refused, however, to submit without qualification the material called for in Annex B,10 which included a list of the programs packaged by MCA. Respondent Schreiber stated that he would produce the subpoenaed materials only 'if the Commission will take this information and assure us that it will be held in confidence, will not be published, and will not be made available to other people, other than those on the Commission, and that serve the Commission.' As grounds for confidential treatment, he asserted that the information sought might disclose trade secrets and confidential data, and that the information was outside the scope of the hearing. He also objected generally to the procedures governing the hearing on the ground that they would require 'public disclosure of trade secrets and confidential data of my company which might be of aid to its many competitors in this highly competitive television industry.' The Presiding Officer found 'no doubt' as to the relevance of the material and rejected, as 'without merit,' the claim that the information should be received in confidence.
9
Respondents then petitioned the Commission for review. On January 25, 1961, the Commission affirmed the Presiding Officer and ordered respondents to appear, testify and produce the material subpoenaed at a reconvened hearing. In its opinion the Commission stressed the importance of publicizing the information gathered during the course of the investigation11 and reaffirmed its resolve to permit in camera sessions only in extraordinary situations:
10
'(W)e determined that public proceedings should be the rule herein, and that non-public procedures should be used only in those extraordinary instances where disclosure would irreparably damage private, competitive interests and where such interests could be found by the Presiding Officer to outweigh the paramount interest of the public and the Commission in full public disclosure.'
11
The Commission noted that the Presiding Officer and Commission counsel had made 'every effort to avoid public disclosure of detailed internal financial information or detailed contractual arrangements which might in fact irreparably harm private interests without sufficient compensating benefit to the public,' and found that they had not departed from this standard in rejecting respondents' claim of likely competitive harm which, the Commission held, was, 'totally unsupported by their pleadings and contrary to the record.' Accordingly, the Commission ordered respondents 'to testify * * * regarding all matters deemed relevant by said Presiding Officer,' and to produce the information required by the subpoena and 'such other information and data as may be deemed relevant and ordered or directed to be produced by the said Presiding Officer.' On remand, a broader claim for confidentiality was made by respondents. They requested that all testimony and documentary evidence to be elicited from them be received in nonpublic sessions, and disclosed only if a court, in subsequent litigation, should authorize its public disclosure. The contention was rejected by the Presiding Officer, but respondent Schreiber persisted in his refusal to comply with subpoena and the Commission's orders.12
12
The Commission thereupon petitioned the United States District Court for the Southern District of California for the enforcement of its subpoena and orders. The District Court found that the investigation was statutorily authorized, that the information requested in Annex B was relevant to the inquiry, and that respondents had disobeyed valid orders and a valid subpoena.13 Accordingly, the District Court ordered respondents to appear at a reconvened hearing and to comply with the Commission's subpoena and orders. However, the court, in order to protect 'respondents' rights and to preclude disclosure of trade secrets of which competitors might take advantage,' ordered that all testimony given and documents produced by respondents be received and held in confidence.14 The court's order further provided that, after the investigation of respondents had been completed, the Commission could move the court for an order, 'should good cause exist therefor,' permitting such testimony and documents to be made public. 201 F.Supp. 421.
13
On appeal, a divided Court of Appeals for the Ninth Circuit affirmed that portion of the District Court's order which pertains to the questions now before this Court.15 The Court of Appeals held that the District Court had not abused its discretion in conditioning its order to require confidential treatment of the information sought. 329 F.2d 517. In dissent, Judge Browning stated that the Commission's procedural rule, requiring public hearings unless in camera proceedings could be justified by those from whom the information was sought, was well within the Commission's power. It was Judge Browning's view that the District Court could require confidential treatment only if the Commission's application of its procedural rule and consequent refusal to accord confidential treatment were found to be arbitrary or an abuse of the Commission's discretion. Id., at 528 534. Because this case presents important questions concerning the respective roles to be performed by federal courts and the Federal Communications Commission in the administration of the Communications Act of 1934, we granted certiorari. 379 U.S. 927, 85 S.Ct. 325, 13 L.Ed.2d 340.
14
We hold that the Commission's rule—requiring public disclosure except where the proponents of a request for confidential treatment have demonstrated that the public interest, proper dispatch of business, or the ends of justice would be served by nonpublic sessions—was well within the Commission's statutory authority. We further find that the Commission did not abuse its discretion in applying this rule. Accordingly, we modify the decision below insofar as it affirms the District Court's imposition of conditions upon the enforcement of the subpoena and orders issued by the Commission.
I.
15
Section 4(j) of the Communications Act of 1934, as amended, 48 Stat. 1068, 47 U.S.C. § 154(j) (1958 ed.), empowers the Federal Communications Commission to 'conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice.' This Court has interpreted that provision as 'explicitly and by implication' delegating to the Commission power to resolve 'subordinate questions of procedure * * * (such as) the scope of the inquiry, whether applications should be heard contemporaneously or successively, whether parties should be allowed to intervene in one another's proceedings, and similar questions.' Federal Communications Comm'n v. Potsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 439, 84 L.Ed. 656. The statute does not merely confer power to promulgate rules generally applicable to all Commission proceedings, cf. Federal Communications Comm'n v. WJR, The Goodwill Station 337 U.S. 265, 282, 69 S.Ct. 1097, 1106, 93 L.Ed. 1353; it also delegates broad discretion to prescribe rules for specific investigations, cf. Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 321—322, 53 S.Ct. 350, 360—361, 77 L.Ed. 796, and to make ad hoc procedural rulings in specific instances, Federal Communications Comm'n v. Pottsville Broadcasting Co., supra. Congress has 'left largely to its judgment the determination of the manner of conducting its business which would most fairly and reasonably accommodate' the proper dispatch of its business and the ends of justice. Federal Communications Comm'n v. WJR, The Goodwill Station, supra.16
16
In the Pottsville Broadcasting case, this Court stressed, in upholding this delegation of broad procedural authority, the established principle that administrative agencies 'should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.' 309 U.s., at 143, 60 S.Ct., at 441. This principle, which has been upheld in a variety of applications,17 is an outgrowth of the congressional determination that administrative agencies and administrators will be familiar with the industries which they regulate and will be in a better position than federal courts or Congress itself to design procedural rules adapted to the peculiarities of the industry and the tasks of the agency involved. Thus, underlying the broad delegation in § 4(j) of procedural rule-making power to the Federal Communications Commission is a 'recognition of the rapidly fluctuating factors characteristic of the evolution of broadcasting and of the corresponding requirement that the administrative process possess sufficient flexibility to adjust itself to these factors.' Federal Communications Comm'n v. Pottsville Broadcasting Co., supra, at 138, 60 S.Ct. at 439.
17
To permit federal district courts to establish administrative procedures de novo would, of course, render nugatory Congress' effort to insure that administrative procedures be designed by those most familiar with the regulatory problems involved. Thus, in providing for judicial review of administrative procedural rule-making, Congress has not empowered district courts to substitute their judgment for that of the agency. Instead, it has limited judicial responsibility to insuring consistency with governing statutes and the demands of the Constitution. Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 214—218, 66 S.Ct. 494, 508—510; Federal Communications Comm'n v. Pottsville Broadcasting Co., supra, 309 U.S., at 144—145, 60 S.Ct., at 442; Federal Radio Comm'n v. Nelson Bros. Co., 289 U.S. 266, 276—277, 53 S.Ct. 627, 632, 77 L.Ed. 1166.
18
It is apparent that the courts below did not respect this congressional distribution of authority. The Commission promulgated a rule governing disclosure in this investigation. Yet, neither the District Court nor the Court of Appeals inquired into the validity of the Commission's exercise of its rulemaking authority. Instead, the District Court devised procedures to be followed by the Commission on the basis of the court's conception of how the public and private interests involved could best be served. In reviewing this determination, the Court of Appeals found that the District Judge had not abused his discretion, 'but, on the contrary, established a fair and just procedure whereby a most important investigation could proceed without being unduly disrupted, obstructed or prolonged, and at the same time afford (respondents) protection against the improvident disclosure of possible valuable trade secrets.' 329 F.2d, at 524. In so doing, the Court of Appeals erred. The question for decision was whether the exercise of discretion by the Commission was within permissible limits, not whether the District Judge's substituted judgment was reasonable.
19
It is also evident that the Commission's procedural rule requiring public proceedings except where it is shown that the public interest, the dispatch of business, or the ends of justice would be served by nonpublic sessions—was well within the Commission's power. Grants of agency authority comparable in scope to § 4(j) have been held to authorize public disclosure of information,18 or receipt of data in confidence,19 as the agency may determine to be proper upon a balancing of the public and private interests involved. That § 4(j) is broad enough to empower the Commission to establish standards for determining whether to conduct an investigation publicly or in private is demonstrated by this Court's decision in Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 53 S.Ct. 350. There, the Court pointed out that a similar grant of rulemaking authority—s 315(c) of the Tariff Act of 1922, 42 Stat. 941, 942—943—which authorizes the Tariff Commission 'to adopt such reasonable procedure, rules, and regulations as it may deem necessary,' empowered the Commission
20
'to shape its course within reasonable limits by its own conception of the promptings of policy and fairness. It would have kept within the statute even though it had made the hearings private and had refrained from the publication of anything, either the records of its agents or the testimony of witnesses. * * * Instead, it made the hearing public, and exposed everything to view except only when publication was likely in its judgment to result in hardship or injustice.' 288 U.S., at 321—322, 53 S.Ct., at 360—361.
21
The delegated power, of course, may not be exercised arbitrarily, but its exercise may not be impeached merely because reasonably minds might differ on the wisdom thereof. Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 215—218, 66 S.Ct. 494, 508—510; Isbrandtsen-Moller Co. v. United States, 300 U.S. 139, 146, 57 S.Ct. 407, 411; Norwegian Nitrogen Products Co. v. United States, supra, 288 U.S. at 321—322, 53 S.Ct. at 360—361. It is apparent, however, that the Commission's determination in the present case that 'public proceedings should be the rule' with exceptions granted 'only in those extraordinary instances where disclosure would irreparably damage private, competitive interests and where such interests could be found by the Presiding Officer to outweigh the paramount interest of the public and the Commission in full public disclosure' was not an arbitrary exercise of the Commission's authority. The procedural rule, establishing a presumption in favor of public proceedings, accords with the general policy favoring disclosure of administrative agency proceedings.20 Moreover, the reasons advanced by the Commission in support of its determination to make public hearings the norm and to place the burden of justifying confidential treatment upon those from whom information is sought amply demonstrate that the Commission's exercise of its delegated powers may not be successfully attacked as arbitrary or capricious. The investigative inquiry was designed to secure information to aid the Commission in the discharge of its many functions. The Commission stated that the subject matter of the inquiry is 'complex and generally unknown' involving 'manysided transaction(s)' among 'networks, advertising agencies, program producers, program packagers, talent agencies' and others. Therefore, the Commission determined, in order 'to obtain a full and rounded picture of such transactions, it is highly desirable that the facts, information, data and opinion supplied by one group or individual be known to other groups and individuals involved, so that they may verify, refute, explain, amplify or supplement the record from their own diverse points of view.' The Commission observed that, in addition to stimulating the flow of information, public hearings serve to inform those segments of the public primarily affected by the agency's regulatory policies and those likely to be affected by subsequent administrative or legislative action of the factual basis for any action ultimately taken—a practical inducement to public acceptance of the results of the investigation.21 Also implicit in the Commission's discourse is a recognition that publicity tends to stimulate the flow of information and public preferences which may significantly influence administrative and legislative views as to the necessity and character of prospective action. The Commission further pointed out that public disclosure is necessary to the execution of its duty under § 4(k) of the Communications Act of 1934, as amended, 48 Stat. 1068 47 U.S.C. § 154(k) (1958 ed.), to make annual reports to Congress. Significantly, this investigation was specifically authorized by Congress so that Congress might 'draw upon the facts which are obtained.'22
22
We hold, therefore, that the Commission's adoption of the procedural rule favoring public disclosure and placing upon those from whom information is sought the burden of demonstrating the need for in camera proceedings is statutorily authorized.
II.
23
Remaining for determination is whether the Commission's application of its disclosure rule and the consequent rejection of respondents' requests for confidential treatment were so arbitrary or unreasonable as to warrant the imposition by the District Court of conditions upon enforcement of the Commission's subpoena and orders.23
24
Upon remand from the Commission, respondents moved that all testimony and documents to be elicited from them—not merely Annex B—should be received in camera. Respondents asserted that in light of the announced scope of the inquiry, the Commission's order to produce documents upon request and to testify 'regarding all matters deemed relevant' would require MCA 'to disclose all of its business information to its many competitors and to make a public record of all of its activities,' and that such a disclosure, if demanded, would necessarily include confidential business secrets. No factual showing was made; there was only the argument.
25
The District Court accepted the argument, finding 'well-grounded (the) fears of the respondents that the testimony to be given might result in disclosure of trade-secrets, of which competitors might take advantage.' 201 F.Supp., at 425. Accordingly, the court ordered that all testimony and documents adduced by respondents be received in confidence. In so doing the District Court rerred, for it is clear that the Presiding Officer did not abuse his discretion in rejecting this request for blanket nondisclosure.
26
The Presiding Officer did not know what information would actually be sought, what questions asked. Indeed, he could only speculate as to whether the Commission would seek to elicit any data which, if disclosed to MCA's competitors, would work competitive harm. He could not ascertain the likelihood of irreparable damage to private competitive interests, nor could be discern whether the private interest outweighed the public interest in disclosure. If and when information was demanded which if disclosed might in fact injure MCA competitively, there would be ample opportunity to request that it be received in confidence, and to seek judicial protection if the request were denied. Cf. Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459. The Presiding Officer would have abused his discretion in denying the request only if it were shown that no information could have been elicited from respondents which could be publicly disclosed. The record affords no justification for such a proposition.
27
The only other possible basis for the District Court's order would be an assumption that the Presiding Officer would consistently require disclosure even if a balancing of public and private interests compelled secrecy. There is no support for such an assumption in the record and it runs contrary to the presumption to which administrative agencies are entitled—that they will act properly and according to law.
28
Nor can the District Court's order be saved on the ground that it did not direct that all information be held in confidence, but merely deferred the determination of whether the information was entitled to confidential treatment until after the inquiry of respondents had been completed. The order directs that there be no disclosure until the court so orders, 'should good cause exist therefor.' Not only does this order seem to shift the burden of proof to the Commission to justify publication, despite the valid rule to the contrary, but it also permits respondents to avoid submitting the issue of disclosure to the Presiding Officer despite the 'long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.' Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50—51, 58 S.Ct. 459, 463, 82 L.Ed. 638; Reisman v. Caplin, supra. Moreover, the District Court's order forbids disclosure until completion of the investigation of respondents without any showing that secrecy is justified. During this period the Commission could not make the information available to Congress, and the Commission would be denied the benefit of other evidence stimulated by disclosure. And the period during which the benefits of disclosure would be denied would inevitably be lond. Respondent first appeared before the Presiding Officer on October 21, 1960, and resolution of the issues then raised has caused a delay of more than four and one-half years.
29
We do not find forceful respondents' contention that the District Court's order was necessary to protect against the discriminatory treatment of MCA by the Commission. The allegations finds little support in the record; moreover, no reference is made to this factor in the District Court's opinion or findings of fact. Respondents' assertions that 'the Commission's interest in MCA was deep' and that 'concentration upon MCA was unique,' even if true, would not demonstrate the need for secrecy. Instead, such assertions merely lend credence to the Commission's unchallenged finding that because of the importance of MCA in the industry, the failure to explore fully the policies and practices of MCA 'would seriously impair, if not render nugatory, any attempt on the Commission's part to understand and delineate the policies, practices and activities involved in the creation, production, sale and licensing of television filmed programs.' Furthermore, it is clear that respondents are adequately protected against imprevident disclosure, even if the Commission should unfairly seek disclosure of information which would be competitively disastrous to respondents. Not only does the administrative remedy exist, but judicial protection against Commission overreaching also remains available with respect to any requests for information made in the future.
30
We conclude, therefore, that the Commission did not abuse its discretion in rejecting respondents' requests for blanket nondisclosure and accordingly hold that the District Court erred in ordering the Commission to afford confidential treatment to all information elicited from respondents.
31
Respondents also moved the confidential treatment be accorded Annex B which called for the production of a list of programs as to which MCA served as a 'packager' and those in which MCA had a financial interest. Respondent Schreiber testified that the information sought would disclose MCA's confidential agency relationships with clients, 'might be used detrimentally,' and 'would be possibly advantageous to our competitors.'
32
We find that the Commission's affirmance of the Presiding Officer's determination that the material sought in Annex B should be received in public session was clearly proper. Certainly private agreements between MCA and its clients not to disclose facts without the client's consent could not affect the Commission in the discharge of its public duties. See 8 Wigmore, Evidence § 2286 (McNaughton rev. 1961). And the naked assertion of possible competitive injury does not establish that the Presiding Officer abused his discretion in declining to accord confidential treatment. Moreover, there is nothing in the District Court's opinion, findings or conclusions of law which indicates the likelihood, or even the possibility, of competitive harm from public disclosure of the Annex B information. MCA's competitors and others engaged in similar businesses had furnished publicly the same type of information without objection. Respondents did not attempt before the Commission or on review to distinguish the information furnished by MCA's competitors or the list of programs produced by MCA (subpoenaed in Annex A) which was introduced without objection by respondent Schreiber. Nor did respondents file affidavits in support of their position. But, even if it were conceded that disclosure of Annex B might have some competitive impact, there is no warrant for concluding that the Presiding Officer abused his discretion in finding that respondents had not sustained their burden of demonstrating that the private interest involved outweighed the public interest in disclosure.
33
One further point should be discussed. During oral argument counsel for respondents suggested that his clients were prejudiced in their efforts to demonstrate the need for confidential treatment of the information contained in Annex B by restrictions imposed upon the participation of counsel by the then-prevailing Commission rules.24 We do not find this contention persuasive. Respondents filed a petition, prepared and signed by counsel, seeking review before the full Commission of the Presiding Officer's rejection of their confidentiality request. Subsequently, they filed a second motion for confidential treatment with the Presiding Officer and respondents' counsel was afforded an opportunity to argue orally in support of the motion. Thus, it is evident that the then-existing Commission rules restricting the rights of counsel did not prejudice respondents in their efforts to secure in camera proceedings with regard to Annex B,25 and hence there is no occasion to order that respondents be afforded an additional opportunity to present objections to the disclosure of the information subpoenaed in Annex B.
34
The judgment of the Court of Appeals iis modified so as to strike paragraph 2 of the District Court's order, and the cause is remanded to the District Court with directions to enforce the Commission's orders and subpoena without qualification.
35
It is so ordered.
36
Judgment of Court of Appeals modified and cause remanded to District Court with directions.
1
Section 403 provides:
'The Commission shall have full authority and power at any time to institute an inquiry, on its own motion, in any case and as to any matter or thing concerning which complaint is authorized to be made, to or before the Commission by any provision of this Act, or concerning which any question may arise under any of the provisions of this Act, or relating to the enforcement of any of the provisions of this Act. The Commission shall have the same powers and authority to proceed with any inquiry instituted on its own motion as though it had been appealed to by complaint or petition under any of the provisions of this Act, including the power to make and enforce any order or orders in the case, or relating to the matter or thing concerning which the inquiry is had, excepting orders for the payment of money.'
2
Independent Offices Appropriations Act, 1956, 69 Stat. 199, 201—202.
3
Statement of Commission Chairman McConnaughey; Hearings before the Subcommittee of the Senate Appropriations Committee, Independent Offices Appropriations for 1956, 84th Cong., 1st Sess., p. 293. Chairman McConnaughey also noted that '(o)nly with this information can the problems affecting the further expansion of television outlets be adequately identified and evaluated, and appropriate recommendations made for their solution.' Id., at 294. See also Hearings before the Subcommittee of the House Appropriations Committee, Independent Offices Appropriations for 1956, 84th Cong., 1st Sess., pp. 663—664.
4
The purpose and scope of the inquiry are set forth in the Commission's order of Feb. 26, 1959. 24 Fed.Reg. 1605. On Nov. 10, 1959, the Commission entered a supplemental order
'(t)hat the inquiry and investigatory proceeding instituted pursuant to the Commission's Order of February 26, 1959 (FCC 59 166), be and is hereby amended and enlarged to determine the policies, practices, mechanics and surveillance pursued and carried out by networks, station licensees and others in connection with the acquisition, ownership, production, distribution, selection, sale and licensing of programs for radio and television exhibition and the policies and practices pursued by networks, station licensees and others in connection with the selection, presentation and supervision of advertising material for broadcast to the public and the reasons and necessity in the public interest for said policies and practices * * *.' Id., at 9275, 9276.
In its orders the Commission noted that the information sought was necessary (1) to complete its general investigation of radio and television broadcasting pursuant to the Independent Offices Appropriations Act; (2) to determine 'what, if any, rules, regulations, legislation or other actions are necessary or desirable in the public interest in connection with' television programming; (3) to determine where the public interest lies in the granting of construction permits, station licenses, modifications and renewals; and (4) to enable the Commission to report and make specific recommendations to Congress in relation to the regulation of broadcasting. Id., at 1605, 9275.
5
Id., at 1605.
6
Ibid.
7
'Packagers' develop and assemble the talent and scripts for a particular program or programs. A 'producer' has general charge of the process of preparing the package for television showing.
8
The Commission's unchallenged finding was:
'that MCA, Inc., (a) represents a large share of the talent, both acting and creative, engaged in television programming; (b) produces television programs; (c) packages and/or sells such programs; (d) maintains and leases production facilities for such programs and generally engages, on a large scale, in all facets of television program production. The record of the proceeding to date clearly establishes that failure fully to explore the policies, practices and activities of MCA, Inc., in connection with television programming would seriously impair, if not render nugatory, any attempt on the Commission's part to understand and delineate the policies, practices and activities involved in the creation, production, sale and licensing of television filmed programs * * *.' R. 16.
9
'(A) A list by name or title of all television programs whether series programs, special programs, or otherwise, which appeared or were exhibited by or through the facilties of the television networks operated by NBC, CBS, or ABC since September 1, 1958, which programs were produced by MCA, Inc. or Revue Productions, Inc. and/or in which MCA, Inc. or Revue Productions, Inc. has or had a financial or proprietary interest or with regard to which MCA, Inc. or Revue Productions, Inc. is or was entitled to receive or has received a percentage of the profits or other compensation or fees in connection with the production or exhibition of such programs other than remuneration or compensation for the representation as agent of individual natural persons as talent.'
10
'(B) A list of all television programs whether series programs, special programs, or otherwise, which appeared on or were exhibited by or through the facilities of the television networks of NBC, CBS, or ABC, since September 1, 1958, in which MCA, Inc. or any predecessor affiliate or subsidiary of MCA, Inc. acted as packager and/or, by agreement or otherwise, is entitled to receive or has received a percentage of the cost or selling price of said program or was or is entitled to receive or has received other compensation, remuneration or fees in connection with the packaging, licensing for broadcast or selling of said program, otherwise than as remuneration or compensation for the representation as agent of individual natural persons as talent.'
11
See post, pp. 293—294.
12
On review of the Presiding Officer's first order, the Commission although dealing with the merits of that order, held 'that the orders and directions of the Presiding Officer as to relevance and public disclosure of evidence, information and data are interlocutory in nature, do not of themselves 'aggrieve' any person, and are not, as of right, appealable to the Commission.' This holding precluded an application to the Commission for review of the Presiding Officer's second order.
13
Respondents do not challenge these findings.
14
Paragraph 2 of the District Court's order provides:
'It is Further Ordered that any further interrogation of respondents and any documents produced by respondents be taken and held by the Commission in private and confidential session, that the public be excluded therefrom, that all testimony adduced and documents produced be maintained in confidence by the Commission, that the Commission by motion duly made and served, may move the Court upon the conclusion of such interrogation and production for an order, should good cause exist therefor, permitting such testimony and documents to be made public, and that respondents shall retain the right to oppose such motion if and when so made.'
15
Under the procedures established by the Presiding Officer, counsel for a witness could not, during the course of interrogation of his client, take exception to, request clarification of, or object to any question, nor could be initiate consultation with his client. Counsel could consult with his client only upon the request of the client if approved by the Presiding Officer. The District Court held that under § 6(a) of the Administrative Procedure Act, 60 Stat. 240, respondents were entitled to the assistance of counsel in the following respects: the right to have counsel object to any question and state his reasons therefor, and the right to have counsel initiate consultation without interference by the Commission or its agents. The Court of Appeals disagreed, concluding that the procedures established by the Presiding Officer were not violative of any constitutional or statutory provisions. On Sept. 2, 1964, the Commission amended Part I of its Rules and Regulations, permitting counsel for any person compelled to appear in Commission proceedings to advise his client either upon his own initiative or that of his client, 'to make objections on the record, and to state briefly the basis for such objections.' 29 Fed.Reg. 12774 12775. Finding this amendment to be 'in accord with respondents' legal position on this matter,' respondents did not seek review of the ruling below. Given the change in the Commission's rules, we need not, and do not, express any views as to the legality of the prior rules concerning a witness' right to the assistance of counsel.
16
The Commission's own conception of its authority is similarly broad. Section 1.1 of the Commission's General Rules of Practice and Procedure provides that procedures to be followed in investigative proceedings shall 'be such as in the opinion of the Commission will best serve the purpose of such proceeding.' 47 CFR § 1.1 (1965).
17
Civil Aeronautics Board v. Hermann, 353 U.S. 322, 77 S.Ct. 804, 1 L.Ed.2d 852; Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614; Wallace Corp. v. National Labor Relations Board, 323 U.S. 248, 65 S.Ct. 238, 89 L.Ed. 216; Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. 424; Utah Fuel Co. v. National Bituminous Coal Comm'n, 306 U.S. 56, 59 S.Ct. 409, 83 L.Ed. 483; Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 53 S.Ct. 350.
18
Isbrandtsen-Moller Co. v. United States, 300 U.S. 139, 57 S.Ct. 407, 81 L.Ed. 562; American Sumatra Tobacco Corp. v. Securities & Exchange Comm'n, 71 App.D.C. 259, 110 F.2d 117 (1940); E. Griffiths Hughes, Inc. v. Federal Trade Comm'n, 61 App.D.C. 386, 63 F.2d 362 (1933).
19
Norwegian Nitrogen Products Co. v. United States, supra.
20
Section 3(c) of the Administrative Procedure Act, 60 Stat. 238, 5 U.S.C. § 1002(c) (1958 ed.), provides:
'Save as otherwise required by statute, matters of official record shall in accordance with published rule be made available to persons properly and directly concerned except information held confidential for good cause found.'
This statute has been interpreted to apply to all information received in any 'formal proceeding.' Attorney General's Manual on the Administrative Procedure Act 24 (1947). In construing § 3(c), the District Court for the District of Columbia has stated: 'Of course, the public interest in open hearings places the burden on the plaintiffs to show that their documents should be received in confidence.' Graber Mfg. Co. v. Dixon, 223 F.Supp. 1020, 1022 (D.C.D.C.1963). See also Davis, Administrative Law § 8.09 (1958).
21
See generally Rourke, Law Enforcement Through Publicity, 24 U.Chi.L.Rev. 225 (1957); Note, 72 Yale L.J. 1227 (1963).
22
Statement of Senator Magnuson, 101 Cong.Rec. 7629.
23
Respondents do not contend that a denial of confidential treatment would result in the abridgment of any constitutional right.
24
See note 15, supra.
25
It should also be noted that during the initial proceeding before the Presiding Officer when respondent Schreiber first objected to disclosure of the Annex B information, he was afforded an opportunity to consult with counsel. In addition, the Commission rules then in effect contained no restrictions on the right of counsel to prepare written documents in support of requests for confidential treatment or on the right of witnesses, such as respondent Schreiber, to submit such documents.
| 89
|
381 U.S. 301
85 S.Ct. 1493
14 L.Ed.2d 398
Corliss LAMONT, dba Basic Pamphlets, Appellant,v.POSTMASTER GENERAL OF THE UNITED STATES. John F. FIXA, Individually and as Postmaster, San Francisco, California, etal., Appellants, v. Leif HEILBERG.
Nos. 491 and 848.
Argued April 26, 1965.
Decided May 24, 1965.
Leonard B. Boudin, Washington, D.C., for appellant in No. 491.
Archibald Cox, Sol. Gen., for appellee in No. 491 and appellants in No. 848.
Marshall W. Krause, San Francisco, Cal., for appellee in No. 848.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
These appeals present the same question: is § 305(a) of the Postal Service and Federal Employees Salary Act of 1962, 76 Stat. 840, constitutional as construed and applied? The statute provides in part:
2
'Mail matter, except sealed letters, which originates or which is printed or otherwise prepared in a foreign country and which is determined by the Secretary of the Treasury pursuant to rules and regulations to be promulgated by him to be 'communist political propaganda', shall be detained by the Postmaster General upon its arrival for delivery in the United States, or upon its subsequent deposit in the United States domestic mails, and the addressee shall be notified that such matter has been received and will be delivered only upon the addressee's request, except that such detention shall not be required in the case of any matter which is furnished pursuant to subscription or which is otherwise ascertained by the Postmaster General to be desired by the addressee.' 39 U.S.C. § 4008(a).
3
The statute defines 'communist political propaganda' as political propaganda (as that term is defined in § 1(j) of the Foreign Agents Registration Act of 19381) which is issued by or on behalf of any country with respect to which there is in effect a suspension or withdrawal of tariff concessions or from which foreign assistance is withheld pursuant to certain specified statutes. 39 U.S.C. § 4008(b). The statute contains an exemption from its provisions for mail addressed to government agencies and educational institutions, or officials thereof, and for mail sent pursuant to a reciprocal cultural international agreement. 39 U.S.C. § 4008(c).
4
To implement the statute the Post Office maintains 10 or 11 screening points through which is routed all unsealed mail from the designated foreign countries. At these points the nonexempt mail is examined by Customs authorities. When it is determined that a piece of mail is 'communist political propaganda,' the addressee is mailed a notice identifying the mail being detained and advising that it will be destroyed unless the addressee requests delivery by returning an attached reply card within 20 days.
5
Prior to March 1, 1965, the reply card contained a space in which the addressee could request delivery of any 'similar publication' in the future. A list of the persons thus manifesting a desire to receive 'communist political propaganda' was maintained by the Post Office. The Government in its brief informs us that the keeping of this list was terminated, effective March 15, 1965. Thus, under the new practice, a notice is sent and must be returned for each individual piece of mail desired. The only standing instruction which it is now possible to leave with the Post Office is not to deliver any 'communist political propaganda.'2 And the Solicitor General advises us that the Post Office Department 'intends to retain its assumption that those who do not return the card want neither the identified publication nor any similar one arriving subsequently.'
6
No. 491 arose out of the Post Office's detention in 1963 of a copy of the Peking Review #12 addressed to appellant, Dr. Corliss Lamont, who is engaged in the publishing and distributing of pamphlets. Lamont did not respond to the notice of detention which was sent to him but instead instituted this suit to enjoin enforcement of the statute, alleging that it infringed his rights under the First and Fifth Amendments. The Post Office thereupon notified Lamont that it considered his institution of the suit to be an expression of his desire to receive 'communist political propaganda' and therefore none of his mail would be detained. Lamont amended his complaint to challenge on constitutional grounds the placement of his name on the list of those desiring to receive 'communist political propaganda.' The majority of the three-judge District Court nonetheless dismissed the complaint as moot, 229 F.Supp. 913, because Lamont would now receive his mail unimpeded. Insofar as the list was concerned, the majority thought that any legally significant harm to Lamont as a result of being listed was merely a speculative possibility, and so on this score the controversy was not yet ripe for adjudication. Lamont appealed from the dismissal, and we noted probable jurisdiction. 379 U.S. 926, 85 S.Ct. 327, 13 L.Ed.2d 340.
7
Like Lamont, appellee Heilberg in No. 848, when his mail was detained, refused to return the reply card and instead filed a complaint in the District Court for an injunction against enforcement of the statute. The Post Office reacted to this complaint in the same manner as it had to Lamont's complaint, but the District Court declined to hold that Heilberg's action was thereby mooted. Instead the District Court reached the merits and unanimously held that the statute was unconstitutional under the First Amendment. 236 F.Supp. 405. The Government appealed and we noted probable jurisdiction. 379 U.S. 997, 85 S.Ct. 722, 13 L.Ed.2d 700.
8
There is no longer even a colorable question of mootness in these cases, for the new procedure, as described above, requires the postal authorities to send a separate notice for each item as it is received and the addressee to make a separate request for each item. Under the new system, we are told, there can be no list of persons who have manifested a desire to receive 'communist political propaganda' and whose mail will therefore go through relatively unimpeded. The Government concedes that the changed procedure entirely precludes any claim of mootness and leaves for our consideration the sole question of the constitutionality of the statute.
9
We conclude that the Act as construed and applied is unconstitutional because it requires an official act (viz., returning the reply card) as a limitation on the unfettered exercise of the addressees First Amendment rights. As stated by Mr. Justice Holmes in United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 437, 41 S.Ct. 352, 363, 65 L.Ed. 704 (dissenting): 'The United States may give up the post-office 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 * * *.'3
10
We struck down in Murdock v. Com. of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, a flat license tax on the exercise of First Amendment rights. A registration requirement imposed on a labor union organizer before making a speech met the same fate in Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430. A municipal licensing system for those distributing literature was held invalid in Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949. We recently reviewed in Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, an attempt by a State to impose a burden on the exercise of a right under the Twenty-fourth Amendment. There, a registration was required by all federal electors who did not pay the state poll tax. We stated:
11
'For federal elections, the poll tax is abolished absolutely as a prerequisite to voting, and no equivalent or milder substitute may be imposed. Any material requirement imposed upon the federal voter solely because of his refusal to waive the constitutional immunity subverts the effectiveness of the Twenty-fourth Amendment and must fall under its ban.' Id., 380 U.S., p. 542, 85 S.Ct., p. 1186.
12
Here the Congress—expressly restrained by the First Amendment from 'abridging' freedom of speech and of press—is the actor. The Act sets administrative officials astride the flow of mail to inspect it, appraise it, write the addressee about it, and await a response before dispatching the mail. Just as the licensing or taxing authorities in the Lovell, Thomas, and Murdock cases sought to control the flow of ideas to the public, so here federal agencies regulate the flow of mail. We do not have here, any more than we had in Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586, any question concerning the extent to which Congress may classify the mail and fix the charges for its carriage. Nor do we reach the question whether the standard here applied could pass constitutional muster. Nor do we deal with the right of Customs to inspect material from abroad for contraband. We rest on the narrow ground that the addressee in order to receive his mail must request in writing that it be delivered. This amounts in our judgment to an unconstitutional abridgment of the addressee's First Amendment rights. The addressee carries an affirmative obligation which we do not think the Government may impose on him. This requirement is almost certain to have a deterrent effect, especially as respects those who have sensitive positions. Their livelihood may be dependent on a security clearance. Public officials like schoolteachers who have no tenure, might think they would invite disaster if they read what the Federal Government says contains the seeds of treason. Apart from them, any addressee is likely to feel some inhibition in sending for literature which federal officials have condemned as 'communist political propaganda.' The regime of this Act is at war with the 'uninhibited, robust, and wide-open? debate and discussion that are contemplated by the First Amendment. New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686.
13
We reverse the judgment in No. 491 and affirm that in No. 848.
14
It is so ordered.
15
Judgment in No. 491 reversed and judgment in No. 848 affirmed.
16
Mr. Justice WHITE took no part in the consideration or decision of these cases.
17
Mr. Justice BRENNAN, with whom Mr. Justice GOLDBERG joins, concurring.
18
These might be troublesome cases if the addressees predicated their claim for relief upon the First Amendment rights of the senders. To succeed, the addressees would then have to establish their standing to vindicate the senders' constitutional rights, cf. Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, as well as First Amendment protection for political propaganda prepared and printed abroad by or on behalf of a foreign government, cf. Johnson v. Eisentrager, 339 U.S. 763, 781—785, 70 S.Ct. 936, 945—947, 94 L.Ed. 1255. However, those questions are not before us, since the addressees assert First Amendment claims in their own right: they contend that the Government is powerless to interfere with the delivery of the material because the First Amendment 'necessarily protects the right to receive it.' Martin v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313. Since the decisions today uphold this contention, I join the Court's opinion.
19
It is true that the First Amendment contains no specific guarantee of access to publications. However, the protection of the Bill of Rights goes beyond the specific guarantees to protect from congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884; NAACP v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204; Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992. I think the right to receive publications is such a fundamental right. The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.
20
Even if we were to accept the characterization of this statute as a regulation not intended to control the content of speech, but only incidentally limiting its unfettered exercise, see Zemel v. Rusk, 381 U.S. 1, 16—17, 85 S.Ct. 1271, 1280—1281, we 'have consistently held that only a compelling (governmental) interest in the regulation of a subject within (governmental) constitutional power to regulate can justify limiting First Amendment freedoms.' NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 341, 9 L.Ed.2d 405. The Government's brief expressly disavows any support for this statute 'in large public interests such as would be needed to justify a true restriction upon freedom of expression or inquiry.' Rather the Government argues that, since an addressee taking the trouble to return the card can receive the publication named in it, only inconvenience and not an abridgment is involved. But inhibition as well as prohibition against the exercise of precious First Amendment rights is a power denied to government. See, e.g., Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649; Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125; Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460. The registration requirement which was struck down in Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430, was not appreciably more burdensome. Moreover, the addressee's failure to return this form results in nondelivery not only of the particular publication but also of all similar publications or material. Thus, although the addressee may be content not to receive the particular publication, and hence does not return the card, the consequence is a denial of access to like publications which he may desire to receive. In any event, we cannot sustain an intrusion on First Amendment rights on the ground that the intrusion is only a minor one. As the Court said in Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746:
21
'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.
22
It is the duty of courts to be watchful for the constitutional rights of the citizens, and against any stealthy encroachments thereon.'
23
The Government asserts that Congress enacted the statute in the awareness that Communist political propaganda mailed to addressees in the United States on behalf of foreign governments was often offensive to the recipients and constituted a subsidy to the very governments which bar the dissemination of publications from the United States. But the sensibilities of the unwilling recipient are fully safeguarded by 39 CFR § 44.1(a) (Supp.1965) under which the Post Office will honor his request to stop delivery; the statute under consideration, on the other hand, impedes delivery even to a willing addressee. In the area of First Amendment freedoms, government has the duty to confine itself to the least intrusive regulations which are adequate for the purpose. Cf. Butler v. State of Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412. The argument that the statute is justified by the object of avoiding the subsidization of propaganda of foreign governments which bar American propaganda needs little comment. If the Government wishes to withdraw a subsidy or a privilege, it must do so by means and on terms which do not endanger First Amendment rights. Cf. Speiser v. Randall, supra. That the governments which originate this propaganda themselves have no equivalent guarantees only highlights the cherished values of our constitutional framework; it can never justify emulating the practice of restrictive re gimes in the name of expediency.
24
Mr. Justice HARLAN concurs in the judgment of the Court on the grounds set forth in this concurring opinion.
1
'The term 'political propagranda' includes any oral, visual, graphic, written, pictorial, or other communication or expression by any person (1) which is reasonably adapted to, or which the person disseminating the same believes will, or which he intends to, prevail upon, indoctrinate, convert, induce, or in any other way influence a recipient or any section of the public within the United States with reference to the political or public interests, policies, or relations of a government of a foreign country or a foreign political party or with reference to the foreign policies of the United States or promote in the United States racial, religious, or social dissensions, or (2) which advocates, advises, instigates, or promotes any racial, social, political, or religious disorder, civil riot, or other conflict involving the use of force or violence in any other American republic or the overthrow of any government or political subdivision of any other American republic by any means involving the use of force or violence.' 22 U.S.C. § 611(j).
2
A Post Office regulation permits a patron to refuse delivery of any piece of mail (39 CFR § 44.1(a)) or to request in writing a withholding from delivery for a period not to exceed two years of specifically described items of certain mail, including 'foreign printed matter.' Ibid. And see Schwartz, The Mail Must Not Go Through, 11 U.C.L.A. L.Rev. 805, 847.
3
'Whatever may have been the voluntary nature of the postal system in the period of its establishment, it is now the main artery through which the business, social, and personal affairs of the people are conducted and upon which depends in a greater degree than upon any other activity of government the promotion of the general welfare.' Pike v. Walker, 73 App.D.C. 289, 291, 121 F.2d 37, 39. And see Gellhorn, Individual Freedom and Governmental Restraints p. 88 et seq. (1956).
| 23
|
381 U.S. 348
85 S.Ct. 1553
14 L.Ed.2d 679
COLUMBIA ARTISTS MANAGEMENT, INC., et al.,v.UNITED STATES et al.
No. 775.
Supreme Court of the United States
May 24, 1965
Seymour D. Lewis and Ralph F. Colin, for appellants.
Solicitor General Cox, Assistant Attorney General Orrick, Lionel Kestenbaum and Elliott H. Moyer, for the United States.
Theodore R. Kupferman, for appellee Summy-Birchard, Inc.
PER CURIAM.
1
The motion to affirm is granted and the judgment is affirmed.
2
Mr. Justice HARLAN, Mr. Justice STEWART, and Mr. Justice GOLDBERG, dissenting.
3
An examination of the proceedings in this case convinces us that a summary disposition of this matter is not appropriate.
4
In 1955 the Government brought an antitrust action against appellant Columbia, appellant Community Concerts, Inc. (Columbia's wholly owned subsidiary), and two corporations whose successor is appellee Summy-Birchard, Inc.* Columbia and Summy-Birchard manage professional concert artists, and their affiliates, Community and the Civic Concert Service division of Summy-Birchard, are 'concert services,' organizing and maintaining local nonprofit 'audience associations' throughout the country which sponsor concert series. Normally an audience association pays an artist an established fee set by the artist and his manager, out of which the artist's manager retains a share and the concert service also retains a share known as the 'margin.' The Government's complaint charged a conspiracy to monopolize the business of managing and booking concert artists and the business of forming and maintaining audience associations.
5
On October 20, 1955, a consent decree was entered by the District Court for the Southern District of New York, the terms of which provide that the managing companies must make their artists available to all concert services at the same rate and that the concert services must make performers available to audience associations without reference to the management of the artists. Paragraph VI(D) of the decree requires that each defendant make available 'to any financial responsible concert service any artist managed by such defendant and reasonably available for the desired performance, at the same margin allowed to the defendant or its affiliate concert service by that artist for a performance for the same fee.'
6
Columbia's standard contract with concert services contains a provision, which Columiba argues is required by a collective bargaining agreement among managers and the concert artists' union, prohibiting a concert service from booking an engagement at less than the artist's established fee without the consent of the artist. After Summy-Birchard protested against signing contracts containing this provision on the ground that it constituted illegal resale price maintenance, Columbia petitioned the District Court on July 18, 1963, for a construction of the 1955 consent decree, alleging in part that the decree specifically sanctioned this contract provision and thus insulated it from attack by a party to the decree. The Government and Summy-Birchard were joined as parties. The District Court held that this contract provision prevented competition among concert services, for it required all of them to be paid the same 'margin' for each artist, and concluded that such a provision was illegal. After reargument, the District Court reaffirmed its prior opinion and stated in its final order:
7
'The provision in Columbia's contract * * * that each engagement before an audience association shall be performed at the artist's established fee constitutes illegal resale price maintenance and is a per se violation of Section 1 of the Sherman Act (15 U.S.C. § 1). To the extent that the Final Judgment operates to allow Columbia to set such resale prices, it is illegal and void as contrary to the Sherman Act, and any continued reliance by Columbia upon such portion or portions of the Final Judgment will not be construed by the Court to be in any way valid.'
8
Columbia appeals from this judgment claiming that it constitutes a modification of the 1955 consent decree and that the District Court is without power to modify the decree without Columbia's agreement.
I.
9
In our view there is substance to Columbia's contention that the District Court modified the 1955 consent decree. As we read the District Court's opinion, that court held that the 1955 decree affirmatively sanctioned the use of the contract provision, and then went on to modify the decree, invalidating that portion of the decree which permitted Columbia to include the provision at issue in its contracts. The District Judge stated in his original opinion:
10
'The scheme of the concert service business conducted by Community and the Civic division of Summy-Birchard which is embodied in the decree clearly envisions that the artist or his manager will be able to control the ultimate price paid by the 'consummer' audience association, impresario, or whoever assumes the risk of 'producing' a show. Were this not so, the definition of 'margin' in the decree would be meaningless. Since this court by its decree—albeit a consent order—has sanctioned pro tanto this structuring of the industry, it should not be slow to consider charges of illegality against the system.'
11
The District Judge suggested that Summy-Birchard's answer might be treated as a 'petition for declaratory judgment' or a 'petition for modification.' After discussion whether or not the contract provision constituted resale price maintenance, he conclude by stating:
12
'Thus, insofar as the decree-imposed requirement of margin operates to allow Columbia to set resale prices, the decree is illegal and void as contrary to the letter and policy of the Sherman Act, and this court will not construe Columbia's continued reliance upon that portion of the decree to be in any way valid.'
13
The District Judge characterized what he had done as '[i]nvalidation of * * * part of the consent decree.' The District Court's opinion on rehearing states, 'The opinion of November 19 is accordingly reaffirmed,' and the judgment of the District Court, set out above, states that '[t]o the extent that the Final Judgment operates to allow Columbia to set such resale prices, it is illegal and void and contrary to the Sherman Act.' In our view the language of the opinion and judgment of the District Court conclusively shows that the court modified the 1955 consent decree despite Columbia's opposition to such modification.
14
We believe that the modification of a previously entered consent decree under the circumstances present here raises substantial questions of law. This Court has held that a consent decree ordinarily may not be modified without the consent of the parties involved. In United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed.2d 999, Mr. Justice Cardozo stated for the Court: 'Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned.' See United States v. International Harvester Co., 274 U.S. 693, 47 S.Ct. 748, 71 L.Ed. 1302; Ford Motor Co. v. United States, 335 U.S. 303, 69 S.Ct. 93, 93 L.Ed.2d 24. While the Court has allowed modifications in consent decrees upon occasion, see Chrysler Corp. v. United States, 316 U.S. 556, 62 S.Ct. 1146, 86 L.Ed.2d 1668; cf. Hughes v. United States, 342 U.S. 353, 72 S.Ct. 306, 96 L.Ed. 394, a showing of changed circumstances is usually necessary. Whether a modification of the consent decree was proper in this case, where no changed circumstances were claimed, should not be determined by this Court summarily. Additionally, the District Court's determination that Columbia's contract provision constitutes resale price maintenance prohibited by the Sherman Act, 26 Stat. 209, raises substantial issues of antitrust law which we believe also ought to be briefed and argued.
II.
15
Apart from what has already been said, there is another reason why this case should not be dealt with summarily. If the District Court's action is not viewed as a modification of the decree, but rather as a determination that the decree neither specifically sanctioned nor prohibited Columbia's contract provision, the court's judgment must be viewed as a declaratory judgment that Columbia's conduct violated the Sherman Act. In that event no appeal lies to this Court, for the Expediting Act, 32 Stat. 823, as amended, 15 U.S.C. § 29, allows direct appeals to this Court only in civil actions 'wherein the United States is complainant.' If appellant is appealing from a declaratory. judgment, this case should be transferred to the Court of Appeals for the Second Circuit. If the Court is holding by its action that the case is properly here because of the fact that the 1955 action was commenced by the Government, then the case raises substantial questions as to the scope of the Expediting Act which should be resolved only after plenary consideration. See Shenandoah Valley Broadcasting, Inc. v. ASCAP, 375 U.S. 39, 84 S.Ct. 8, 11 L.Ed.2d 8.
16
We would therefore 'postpone jurisdiction' and set the case for argument.
17
Mr. Justice DOUGLAS took no part in the consideration or decision of this case.
*
Summy-Birchard is successor to both the National Concert and Artists Corp. and its wholly owned subsidiary, Civic Concert Services, Inc.
| 78
|
381 U.S. 336
85 S.Ct. 1486
14 L.Ed.2d 422
Paul V. CASE, Petitioner,v.STATE OF NEBRASKA.
No. 843.
Argued April 28, 1965.
Decided May 24, 1965.
Daniel J. Meador, Charlottesville, Va., for petitioner.
Melvin Kent Kammerlohr, Lincoln, Neb., for the State of Neb.
PER CURIAM.
1
Petitioner sought a writ of habeas corpus in the District Court for Lancaster County, Nebraska, alleging that he was unconstitutionally denied the assistance of counsel when he entered a plea of guilty in that court to a charge of burglary. The trial court dismissed the petition without a hearing, and filed no opinion. The Nebraska Supreme Court affirmed. 177 Neb. 404, 129 N.W.2d 107. The Supreme Court's opinion recognized that petitioner's allegations, if true, would establish a violation of the Federal Constitution. 177 Neb., at 410, 129 N.W.2d, at 111. The Supreme Court held, however, that, in Nebraska, 'Habeas corpus is not available to discharge a prisoner from a sentence of penal servitude if the court imposing it had jurisdiction of the offense and of the person charged with the crime, and the sentence was within the power of the court.' 177 Neb., at 412, 129 N.W.2d, at 112. We granted certiorari, 379 U.S. 958, 85 S.Ct. 672, 13 L.Ed.2d 554, to decide whether the Fourteenth Amendment requires that the States afford state prisoners some adequate corrective process for the hearing and determination of claims of violation of federal constitutional guarantees.
2
After certiorari was granted, the Nebraska Legislature enacted a statute providing a postconviction procedure. Neb.Leg. Bill 836, Seventy-fifth Session, effective April 12, 1965. On its face, the statute provides for a hearing of petitions such as this one, alleging denial of federal constitutional rights. Therefore, the judgment is vacated and the cause remanded to the Nebraska Supreme Court for reconsideration in light of the supervening statute.
3
It is so ordered.
4
Judgment vacated and cause remanded.
5
Mr. Justice CLARK, concurring.
6
As the Court points out, we granted certiorari in this case 'to decide whether the Fourteenth Amendment requires that the States afford state prisoners some adequate corrective process for the hearing and determination of claims of violation of federal constitutional guarantees.' Happily, Nebraska in the interim has adopted just such a procedure thus obviating the necessity of our passing upon the question.
7
It should be pointed out, however, that as early as 1949 this Court in Young v. Ragen, 337 U.S. 235, 69 S.Ct. 1073, 93 L.Ed. 1333, articulated the principle that the States must afford prisoners some 'clearly defined method by which they may raise claims of denial of federal rights.' Id., at 239, 69 S.Ct., at 1074, 93 L.Ed. 1333. But compare Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). In stating that proposition the Court noted: 'The doctrine of exhaustion of state remedies, to which this Court has required the scrupulous adherence of all federal courts * * * presupposes that some adequate state remedy exists. We recognize the difficulties with which the Illinois Supreme Court is faced in adapting available state procedures to (this) requirement * * *. Nevertheless, that requirement must be met.' Young v. Ragen, supra, at 238—239, 69 S.Ct. at 1074—1075.
8
Thereafter, the Illinois Post-Conviction Hearing Act was adopted.1 It was followed by passage of a statute in North Carolina in 1951 which was 'modeled' on the Illinois Act.2 Miller v. State, 237 N.C. 29, 51, 74 S.E.2d 513, 528 (1953). Nebraska is the seventh State to adopt such a statute since Young v. Ragen, supra.3 There exists in some States a wide variety of procedural techniques that have been used to deal with due process attacks on criminal convictions, i.e., basic common-law remedies such as habeas corpus, coram nobis and delayed motions for new trial. But the great variations in the scope and availability of such remedies result in their being entirely inadequate.
9
As a consequence there has been a tremendous increase in habeas corpus applications in federal courts. Indeed, in the Supreme Court alone they have increased threefold in the last 15 years. This has brought about much public agitation and debate over proposed limitations of the habeas corpus jurisdiction of federal courts. The necessity for such proposals has been based on various grounds, including that of federal-state comity; inordinate delay in the administration of criminal justice in the state courts; and the heavy burden on the federal judiciary. None of these will survive careful scrutiny.
10
Strangely enough there has been little light thrown on the necessity for more effective postconviction remedies in the State. In 1958 the Burton Committee4 reported out a preliminary draft of findings in which it stated
11
'that the law of state post-conviction process in many states was wholly inadequate to cope with the demands now being placed upon it. In some jurisdictions prisoners were altogether precluded from direct access to the courts. (Cochran v. State of Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453 (1942); Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215 (1951).) * * * In many more, the procedures recognized by state law failed to provide genuine opportunities for testing constitutional issues of the most numerous and important types. The result was that prisoners often failed to obtain hearings on their allegations in the state courts. This, in turn, increased the number of petitions in state and federal courts and was generally productive of frustrations in all persons concerned with the process.'5
12
Believing that the practical answer to the problem is the enactment by the several States of postconviction remedy statutes I applaud the action of Nebraska. This will enable prisoners to 'air out' their claims in the state courts and will stop the rising conflict presently being generated between federal and state courts. This has proven true in Illinois where it is reported that federal applications from state prisoners dropped considerably after its Act was adopted. I understand that the Illinois Legislature is now considering the enlargement of the five-year limitations period of its present Act to a 20-year period. The consensus is that this will solve the problem entirely in Illinois, which was originally the 'sore spot' of the Nation in this regard.
13
I hope that the various States will follow the lead of Illinois, Nebraska, Maryland, North Carolina, Maine, Oregon and Wyoming in providing this modern procedure for testing federal claims in the state courts and thus relieve the federal courts of this ever-increasing burden.
14
Mr. Justice BRENNAN, concurring.
15
The petitioner entered his plea of guilty on April 18, 1963, one month after this Court's decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, holding the Sixth Amendment guarantee of counsel applicable to state prosecutions by virtue of the Fourteenth Amendment.1 The Nebraska Supreme Court followed prior Nebraska decisions in holding that, in a habeas corpus action brought by a convicted prisoner, judicial inquiry is limited to the jurisdiction of the convicting court over the offense and over the person of the accused, and to the question whether the sentence imposed was within the power of the court.2 The State conceded in its response to the petition for certiorari that habeas corpus was unavailable to hear petitioner's claim and that petitioner had no other remedy in the state courts.3
16
On oral argument, counsel appointed for petitioner, see 379 U.S. 995, 85 S.Ct. 722, conceded the relevancy of the new Nebraska postconviction procedure,4 but contended that petitioner was nevertheless entitled to a declaration that he had been unconstitutionally denied a hearing by the Nebraska courts, and to a reversal of the judgment of the Nebraska Supreme Court and a mandate directing that by some procedure the petitioner's claim be adequately adjudicated.5
17
Petitioner concedes that the Court's practice has been to remit prisoners to their federal habeas corpus remedy. See, e.g., Jennings v. Illinois, 342 U.S. 104, 72 S.Ct. 123, 96 L.Ed. 119. But he contends that substituting federal for state corrective process, instead of directing the State itself to meet its obligation, is a disservice to sound principles of federalism.6 He points to the vast increase in the number of federal habeas corpus applications by state prisoners as evidence that lack of adequate state procedures has put an intolerable strain on the federal writ and has brought about mounting friction between state and federal courts. See Henry v. State of Mississippi, 379 U.S. 443, 453, 85 S.Ct. 564, 570. In short, he contends that if the evolution in the coverage of the Fourteenth Amendment and in the scope of federal habeas corpus, see Fay v. Noia 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, is not to pull the federal judiciary increasingly into state criminal administration, the States must provide broader procedures more hospitable to federal constitutional claims.
18
The desirability of minimizing the necessity for resort by state prisoners to federal habeas corpus is not to be denied. Our federal system entrusts the States with primary responsibility for the administration of their criminal laws. The Fourteenth Amendment and the Supremacy Clause make requirements of fair and just procedures an integral part of those laws, and state procedures should ideally include adequate administration of these guarantees as well.7 If, by effective processes the States assumed this burden, the exhaustion requirement of 28 U.S.C. § 2254 (1958 ed.) would clearly promote state primacy in the implementation of these guarantees. Of greater importance, it would assure not only that meritorious claims would generally be vindicated without any need for federal court intervention, but that nonmeritorious claims would be fully ventilated, making easier the task of the federal judge if the state prisoner pursued his cause further. See Townsend v. Sain, 372 U.S. 293, 312—318, 83 S.Ct. 745, 9 L.Ed.2d 770. Greater finality would inevitably attach to state court determinations of federal constitutional questions, because further evidentiary hearings on federal habeas corpus would, if the conditions of Townsend v. Sain were met, prove unnecessary.
19
None can view with satisfaction the channeling of a large part of state criminal business to federal trial courts. If adequate state procedures, presently all too scarce,8 were generally adopted, much would be done to remove the irritant of participation by the federal district courts in state criminal procedure. The 1954 Report of the Special Committee on Habeas Corpus of the Conference of Chief Justices pointed the way in urging that 'State statutes should provide a postconviction process at least as broad in scope as existing Federal statutes under which claims of violation of constitutional right asserted by State prisoners are determined in Federal courts under the Federal habeas corpus statutes,' and recommending provisions for hearing, a record, fact findings and conclusions of law. H.R.Rep.No.1293, 85th Cong., 2d Sess., p. 7 et seq.
20
These are similar to other suggestions of desirable attributes of a state postconviction procedure which should reduce the necessity for exercise of federal habeas corpus jurisdiction.9 The procedure should be swift and simple and easily invoked. It should be sufficiently comprehensive to embrace all federal constitutional claims. In light of Fay v. Noia, supra, it should eschew rigid and technical doctrines of forfeiture, waiver, or default. See Douglas v. Alabama, 380 U.S. 415, 422—423, 85 S.Ct. 1074; Henry v. Mississippi, supra. It should provide for full fact hearings to resolve disputed factual issues, and for compilation of a record to enable federal courts to determine the sufficiency of those hearings. Townsend v. Sain, supra. It should provide for decisions supported by opinions, or fact findings and conclusions of law, which disclose the grounds of decision and the resolution of disputed facts. Provision for counsel to represent prisoners, as in § 4 of the Nebraska Act, would enhance the probability of effective presentation and a proper disposition of prisoners' claims.
21
But there is no occasion in this case to decide whether due process requires the States to provide corrective process. The new statute on its face is plainly an adequate corrective process. Every consideration of federalism supports our conclusion to afford the Nebraska courts the opportunity to say whether that process is available for the hearing and determination of petitioner's claim.
1
Ill.Rev.Stat., c. 38, §§ 122—1—122—7 (1963).
2
N.C.Gen.Stat. §§ 15—217—15—222 (Supp. 1963).
3
Maryland, Maine, Oregon and Wyoming have passed similar legislation. Md.Ann. Code, Art. 27, §§ 645A to 645J (Supp. 1964); Me.Rev.Stat.Ann., c. 126, §§ 1—A to 1—G (Supp.1963); Ore.Rev.Stat. §§ 138.510—138.680 (1963); Wyo.Stat.Ann. §§ 7—408.1 to 7—408.8 (1963 Cum.Supp.). It should be noted, however, that six other States have adopted similar procedures by rule of court. See Alaska Sup.Ct. Rule 35(b); Del.Super.Ct.Crim.Proc. Rule 35, Del.C.Ann.; Fla. Rules Crim.Proc. 1, F.S.A. ch. 924 Appendix; Ky.Rules Crim.Proc. 11.42; Mo.Sup.Ct. Rule 27.26, V.A.M.R.; N.J.Crim.Prac. Rules of Super. and County Cts., Rule 3:10A—2.
4
The late Mr. Justice Burton of revered memory was Chairman of the Committee on Post Conviction Remedies of the American Bar Association's Section of Judicial Administration. In August 1958 it circulated a preliminary draft of a study entitled Effective State Post-Conviction Procedures—Their Nature and Essentialities, which was prepared by the Seminar in Criminal Procedure of the University of Chicago Law School under the direction of Professor Francis A. Allen.
5
Id., at 2—3.
1
The petition for habeas corpus reads:
'Petitioner, Paul Vernon CASE, was sentenced to five (5) years in the Nebraska Penal and Correctional Complex on May 3, 1963, A.D.
'Petitioner was 'fast talked' and forcibly coerced into waiving his rights (U.S. Constitutional Rights) to have advice and counsel; to have a Preliminary Hearing, and to plead not-guilty.
'Mr. William D. Blue told Petitioner he, Petitioner, would be charged with being 'An Habitual Criminal' if he did not waive these rights. He, Petitioner was held in Solitary Confinement in City Jail, until such time as he would agree—under cruel and unusual circumstances.
'The basic rights waived by this Petitioner are guaranteed him under the Sixth Amendment of the U.S. Constitution and are so
fundamental and essential to a fair trial that they are made obligatory upon the States, All states, by way of the Fourteenth Amendment. For reference see Gideon v. Wainwright in the U.S. Supreme Court. October 1962, Term, No. 155; all Justices concurring.'
2
See Jackson v. Olson, 146 Neb. 885, 893—894, 22 N.W.2d 124, 129—130, 165 A.L.R. 932; In re Dunn, 150 Neb. 669, 35 N.W.2d 673; Hawk v. Olson, 145 Neb. 306, 16 N.W.2d 181, rev'd 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61, on remand, 146 Neb. 875, 22 N.W.2d 136.
3
The response stated: 'For all practical purposes, there is no collateral remedy available in the Nebraska courts to a state prisoner who alleges that a violation of his federal constitutional rights occurred in connection with his conviction and whose claim has not yet been considered by the state courts, unless the prisoner's claim is predicated upon a lack of jurisdiction of the sentencing court over the offense or over the person of the accused.'
In addition to this concession that the State provided no remedy whatever, petitioner cites Carlsen v. State, 129 Neb. 84, 261 N.W. 339, as authority for the unavailability of coram nobis; Neb.Rev.Stat. § 29—2103 (1964 Reissue), as barring a motion for a new trial; and Neb.Rev.Stat. § 25—1912 (1964 Reissue), as barring an appeal.
4
The new statute, Neb.Leg. Bill 836, 75th Session, effective April 12, 1965, provides:
'Sec. 1. A prisoner in custody under sentence and claiming a right to be released on the ground that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Constitution of this state or the Constitution
of the United States, may file a verified motion at any time in the court which imposed such sentence, stating the grounds relied upon, and asking the court to vacate or set aside the sentence.
'Unless the motion and the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief, the court shall cause notice thereof to be served on the county attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Constitution of this state or the Constitution of the United States, the court shall vacate and set aside the judgment and shall discharge the prisoner or resentence him or grant a new trial as may appear appropriate. Proceedings under the provisions of this act shall be civil in nature. Costs shall be taxed as in habeas corpus cases.
'A court may entertain and determine such motion without requiring the production of the prisoner, whether or not a hearing is held. Testimony of the prisoner or other witnesses may be offered by deposition. The court need not entertain a second motion or successive motions for similar relief on behalf of the same prisoner.
'Sec. 2. An order sustaining or overruling a motion filed under the provisions of this act shall be deemed to be a final judgment, and an appeal may be taken to the Supreme Court therefrom as provided for in appeals in civil cases; Provided, that a prisoner may in the discretion of the Supreme Court upon application to the court be released on such recognizance as the Supreme Court shall fix pending the determination of the appeal.
'Sec. 3. The remedy provided by this act is cumulative and is not intended to be concurrent with any other remedy existing in the courts of this state. Any proceeding filed under the provisions of this act which states facts which if true would constitute grounds for relief under another remedy shall be dismissed without prejudice.
'Sec. 4. The district court may appoint an attorney or attorneys, not exceeding two, to represent the prisoners in all proceedings under the provisions of this act and fix their compensation as provided in section 29—1803, Reissue Revised Statutes of Nebraska, 1943.'
5
The petitioner states in his brief:
'At this stage of the litigation the Court need not pass on the steps to be taken if the Nebraska court should fail to comply with a mandate requiring corrective process for petitioner. It might be suggested, however, that the problem essentially is no different from actual or potential disobedience of the mandate in many other cases remanded by this Court. If on the remand Nebraska failed to make corrective process available, petitioner could return here with a fresh petition for certiorari. This Court could then order petitioner's discharge from custody. That is the ultimate sanction behind the due process requirement of state corrective process. See Dowd v. United States ex rel. Cook, 340 U.S. 206, 209—210, 71 S.Ct. 262, 263—264, 95 L.Ed. 215.'
In support of this contention, the petitioner argues that the Supremacy Clause and the fundamental Fourteenth Amendment right to a hearing constitutionally require the States to afford corrective judicial process to remedy federal constitutional defects in their criminal prosecutions, citing Frank v. Mangum, 237 U.S. 309, 335, 35 S.Ct. 582, 590, 59 L.Ed. 969; Moore v. Dempsey, 261 U.S. 86, 91, 43 S.Ct. 265, 266, 67 L.Ed. 543; Mooney v. Holohan, 294 U.S. 103, 113, 55 S.Ct. 340, 342, 79 L.Ed. 791; New York ex rel. Whitman v. Wilson, 318 U.S. 688, 690, 63 S.Ct. 840, 841, 87 L.Ed. 1083; Carter v. Illinois, 329 U.S. 173, 175—176, 67 S.Ct. 216, 218, 219, 91 L.Ed. 172; Foster v. Illinois, 332 U.S. 134, 139, 67 S.Ct. 1716, 1719, 91 L.Ed. 1955; Taylor v. Alabama, 335 U.S. 252, 272, 68 S.Ct. 1415, 1424, 92 L.Ed. 1935 (concurring opinion); Young v. Ragen, 337 U.S. 235, 238—239, 69 S.Ct. 1073, 1074, 93 L.Ed. 1333. In addition to the cases cited involving criminal convictions, petitioner cites as other applications of the general principle General Oil Co. v. Crain, 209 U.S. 211, 228, 28 S.Ct. 475, 481, 52 L.Ed. 754; Kenney v. Supreme Lodge, 252 U.S. 411, 415, 40 S.Ct. 371, 372, 64 L.Ed. 638; Ward v. Board of County Com'rs of Love County, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751; McKnett v. St. Louis & S.F.R. Co., 292 U.S. 230, 54 S.Ct. 690, 78 L.Ed. 1227; Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967. He also argues that, since Nebraska allowed habeas corpus to attack convictions for jurisdictional defects based on Nebraska law, the Nebraska Supreme Court unconstitutionaly discriminated against federal law by refusing habeas corpus for jurisdictional defects based on the Fourteenth Amendment. For the proposition that a State may not discriminate against rights arising under federal laws, petitioner cites McKnett v. St. Louis & S.F.R. Co., supra, and Testa v. Katt, supra, and for the proposition that an unconstitutional denial of counsel is a jurisdictional defect relies on Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.
6
Petitioner refers to Young v. Ragen, supra, where, in vacating the denial of state habeas corpus, the Court said: 'If there is now no post-trial procedure by which federal rights may be vindicated in Illinois, we wish to be advised of that fact upon remand of this case.' 337 U.S., at 239, 69 S.Ct. at 1075. He also cites Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Boles v. Stevenson, 379 U.S. 43, 85 S.Ct. 174, 13 L.Ed.2d 109; Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408; and Note, Effect of the Federal Constitution in Requiring State Post-Conviction Remedies, 53 Col.L.Rev. 1143 (1953).
7
Dean Griswold of the Harvard Law School, in an address, 'The States and Criminal Law,' given on May 13, 1965, to the Cleveland Bar Association, said:
'For, after all, the basic responsibility for the enforcement of the criminal law remains with the States. The States are, or should be, as much concerned with high standards as is the Federal government. The State should, in my view, welcome the determinations of the Supreme Court that the high standards prescribed by our Federal Constitution are to be taken seriously and should be enforced. What is needed now is for the States to accept this responsibility, and to adopt means to carry it out. With proper explanation and understanding, this can, I believe, be done without impairing our enforcement of the criminal law. When the States do fully meet this responsibility we will all be better off, and we will more nearly have realized the potentialities of our Great Federal form of Government.'
8
The Uniform Post-Conviction Procedure Act, 9B Uniform Laws Ann. 352—359, designed to provide adjudication of federal claims, has had but slight influence in the States. Arkansas adopted the Uniform Act in 1957, but repealed it two years later. 2 Acts of Arkansas (1959) 1160—1161. Six States in addition to Nebraska have adopted their own statutes. Ill.Rev.Stats., c. 38, §§ 122—1 to 122 7 (1963); Me.Rev.Stat.Ann., c. 126, §§ 1—A to 1—G (Supp.1963); Md.Ann.Code, Art. 27, §§ 645A to 645J (Supp.1964); N.C.Gen.Stat. §§ 15—217 to 15—222 (Supp. 1963); Ore.Rev.Stat. §§ 138.510—138.680 (1963); Wyo.Stat.Ann. §§ 7—408.1 to 7—408.8 (1963 Cum.Supp.). Procedures have been adopted by rule of court in six States. Alaska Sup.Ct. Rule 35(b); Del.Super.Ct.Crim.Proc. Rule 35(a); Fla.Rules Crim.Proc. 1; Ky.Rules Crim.Proc. 11.42; Mo.Sup.Ct. Rule 27.26; N.J.Crim.Prac. Rules of Super. and County Cts., Rule 3:10A 2. Some state courts are apparently broadening existing postconviction remedies by judicial construction. See, e.g., People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965); State ex rel. Banach v Boles, 141 W.Va. 850, 858, 131 S.E.2d 722, 728 (1963); Hunt v. Warden, 335 F.2d 936, 941—942 (C.A.4th Cir.) (discussing the expanding Maryland remedy). See also the views expressed in People v. Wilson, 18 App.Div.2d 424, 430, 239 N.Y.S.2d 900, 903; Ex parte Aaron, 275 Ala. 377, 381—382, 155 So.2d 334, 337—338 (dissenting opinion); Donnell v. Nash, 323 F.2d 850 (C.A.8th Cir.); Cobb v. Balkcom, 339 F.2d 95, 100 (C.A.5th Cir.). Proposals that the States make their postconviction procedures co-extensive with federal habeas corpus are found in Meador. Accommodating State Criminal Procedure and Federal Postconviction Review, 50 A.B.A.J. 928 (1964); National Assn. of Attys. Gen. Conference Proceedings, 1964, pp. 42—43 (remarks of Arthur J. Sills, Atty. Gen. of New Jersey), 149—150 (resolution of the Association); Brennan, Some Aspects of Federalism, 39 N.Y.U.L.Rev. 945, 957—959 (1964).
9
See Meador, supra, 50 A.B.A.J., at 929—930, Brennan, supra, 39 N.Y.U.L.Rev., at 958—959; cf. Report No. 23, ABA Section of Criminal Law (Mid-Winter Meeting, Feb. 1965) 5, 7.
| 89
|
381 U.S. 311
85 S.Ct. 1473
14 L.Ed.2d 405
MINNESOTA MINING AND MANUFACTURING CO., Petitioner,v.NEW JERSEY WOOD FINISHING CO.
No. 291.
Argued April 29, 1965.
Decided May 24, 1965.
[Syllabus from pages 311-312 intentionally omitted]
Sidney P. Howell, Jr., New York City, for petitioner.
Albert G. Besser, Newark, N.J., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
This private treble-damage antitrust action was brought by the New Jersey Wood Finishing Company against Minnesota Mining and Manufacturing Company and the Essex Wire Corporation.1 Respondent's original complaint was filed on November 20, 1961.2 It alleged violations of § 7 of the Clayton Act,3 a conspiracy to restrain commerce in electrical insulation products in violation of § 1 of the Sherman Act and an attempt to monoplize the same as prohibited by § 2.4 The substance of the complaint concerned the acquisition in 1956 of all the assets of Insulation and Wires, Inc., a subsidiary of Essex, by Minnesota Mining and an alleged conspiracy to restrain trade in electrical insulation products. The latter claimed that the suit was barred by the four-year limitation provision of the Clayton Act.5 However, New Jersey Wood asserted that the bar of the statute had been tolled by a proceeding filed in 1960 against Minnesota Mining by the Federal Trade Commission under § 7 of the Clayton Act. That action resulted in a consent order under which Minnesota Mining was directed to divest itself of the assets acquired. Section 5(b) of the Clayton Act6 provides that a 'civil or criminal proceeding * * * instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws' suspends the running of the statute of limitations during the pendency thereof and for one year thereafter with respect to private actions arising under those laws and based on any matter complained of in the government suit. The questions here are whether proceedings by the Federal Trade Commission toll the running of the § 4B statute of limitations to the same extent as to judicial proceedings and, if they do, whether the claim of New Jersey Wood is based on 'any matter complained of' in the Commission action. The District Court denied Minnesota Mining's motion to dismiss, holding that the four-year statute had been tolled by § 5(b) and that this suit was timely filed. 216 F.Supp. 507. The Court of Appeals affirmed. 332 F.2d 346. We granted certiorari because of a conflict between circuits7 and the importance of the question in the administration of the Clayton Act. 379 U.S. 877, 85 S.Ct. 146, 13 L.Ed.2d 85.
I.
2
New Jersey Wood is engaged in the manufacture of electrical insulation materials, some of which it sells to independent distributors who, in turn, sell to wire and cable manufacturers and fabricators. Minnesota Mining is a difversified company, with one of its divisions producing electrical insulation materials. Essex is a substantial consumer of electrical insulation material. It owned Insulation Wires which distributes that type of material.
3
In August 1956 Minnesota Mining bought all the assets of Insulation Wires and in 1960 the Federal Trade Commission filed a proceeding against it under § 7 of the Clayton Act which resulted in a consent order directing the divestiture by Minnesota Mining of the assets so acquired. This order was dated August 24, 1961. The Commission charged that prior to 1953 Minnesota Mining was the leading manufacturer of electrical insulation tape; that through five transactions in the years 1952 through 1956 it had also brought under its control substantial shares of other major electrical product lines; and that its subsequent acquisition of two of the three largest distributors of these products might have the effect of actually or potentially lessening competition and tending to create a monopoly in various aspects of that commerce. One of the two distributors so acquired was Insulation Wires.
4
Thereafter, within a year, this suit was filed. We need not detail the allegations of the complaint. It is sufficient to say that the gist of it was that prior to August 1956 Insulation Wires was the primary distributor of New Jersey Wood products throughout the United States; that in August 1956 Minnesota Mining acquired all of the assets of Insulation Wires and during the next month notified New Jersey Wood that beginning in January 1957 Insulation Wires would no longer distribute its products. The complaint also charged Minnesota Mining and Essex with conspiring to restrain trade and commerce in the manufacture, sale and distribution of electrical insulation products beginning with the acquisition of Insulation Wires and continuing until the filing of this suit. There were numerous overt acts alleged as being in furtherance of the conspiracy, the first of which was that acquisition.
II.
5
At the outset it is necessary to examine § 5(a) of the Clayton Act8 and its relationship to § 5(b). The former makes a final judgment or decree in any civil or criminal proceeding brought by or on behalf of the United States prima facie evidence in subsequent private suits 'as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto.' Several distinctions between these sections are apparent and suggest that they are not wholly interdependent. First, the words 'final judgment or decree' are used in § 5(a) and are of crucial significance in its application. However, § 5(b) tolls the statute of limitations set out in § 4B from the time suit is instituted by the United States regardless of whether a final judgment or decree is ultimately entered. Its applicability in no way turns on the success of the Government in prosecuting its case. Moreover, under § 5(a) the judgment or decree may be used only as to matters respecting which it would operate as an estoppel between the parties. No such limitation appears in the tolling provision. It applies to every private right of action based in whole or in part on 'any matter' complained of in the government suit.
6
When we turn from the express language of these two statutory provisions to the congressional policies underlying them, it becomes even more apparent that the applicability of § 5(a) to Federal Trade Commission actions should not control the question whether such proceedings toll the statute of limitations. We have discussed these policies at greater length below. At this juncture it is sufficient to say that in framing § 5(a) Congress focused on the narrow issue of the use by private parties of judgments or decrees as prima facie evidence. This was recognized in Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534 (1951), where we stated that the purpose of § 5(a) was 'to minimize the burdens of litigation for injured private suitors by making available to them all matters previously established by the Government in antitrust actions' and to permit them 'as large an advantage as the estoppel doctrine would afford had the Government brought suit.' Id., at 568, 71 S.Ct. at 413. As we shall show, however, its purpose in adopting § 5(b) was not so limited, for it was not then dealing with the delicate area in which a judgment secured in an action between two parties may be used by a third. Whatever ambiguities may exist in the legislative history of these provisions as to other questions, it is plain that in § 5(b) Congress meant to assist private litigants in utilizing any benefits they might cull from government antitrust actions. See S.Rep.No.619, 84th Cong., 1st Sess., 6, U.S.Code Cong. & Admin.News 1955, p. 2328. The distinction was emphasized in Union Carbide & Carbon Corp. v. Nisley, 10 Cir., 300 F.2d 561 (1962), where the court after noting the analysis of § 5(a) set out in Emich Motors Corp., supra, stated that:
7
'The corollary purpose of the tolling provisions of the second paragraph of Section 5 (now § 5(b)) is to vouchsafe the intended benefits of related government proceedings by suspending the running of the statute of limitations until the termination of the government proceedings, and allowing the private suitor one year thereafter in which to prepare and file his suit. The competency of a government judgment in a private suit is necessarily restricted to the requirements of due process. But the tolling of the statute during the pendency of the government litigation is not so limited.' Id., at 569.
8
In our view, therefore, the two sections are not necessarily coextensive; they are governed by different considerations as well as congressional policy objectives. This makes § 5(b) readily severable from § 5(a). Even if we assumed arguendo that § 5(a) is inapplicable to Commission proceedings—a question upon which we venture no opinion—that conclusion would be immaterial in our consideration of § 5(b) and § 4B. Congress has expressed its belief that private antitrust litigation is one of the surest weapons for effective enforcement of the antitrust laws. This construction will lend considerable impetus to that policy.
III.
9
Section 5, later §§ 5(a) and 5(b), was passed in response to the plea of President Wilson. In a speech to the Congress on January 20, 1914, he urged that a law be enacted which would permit victims of antitrust violations to have 'redress upon the facts and judgments proved and entered in suits by the Government' and that 'the statute of limitations * * * be suffered to run against such litigants only from the date of the conclusion of the Government's action.' 51 Cong.Rec. 1964. The broad aim of this enactment was to use 'private self-interest as a means of enforcement' of the antitrust laws. Bruce's Juices, Inc. v. American Can Co., 330 U.S. 743, 751, 67 S.Ct. 1015, 1019, 91 L.Ed. 1219 (1947). The 'entire provision (was) intended to help persons of small means who are injured in their property or business by combinations or corporations violating the antitrust laws.' H.R.Rep.No.627, 627, 63d Cong., 2d Sess., 14. See S.Rep. No. 619, supra, at 6.
10
It may be, as Minnesota Mining contends, that when it was enacted the tolling provision was a logical backstop for the prima facie evidence clause of § 5(a). But even though § 5(b) complements § 5(a) in this respect by permitting a litigant to await the outcome of government proceedings and use any judgment or decree rendered therein—a benefit which often is of limited practical value9—it is certainly not restricted to that effect. As we have pointed out, the textual distinctions as well as the policy basis of § 5(b) indicate that it was to serve a more comprehensive function in the congressional scheme of things. The Government's initial action may aid the private litigant in a number of other ways. The pleadings, transcripts of testimony, exhibits and documents are available to him in most instances. In fact, the rules of the Commission so provide. 16 CFR § 1.132(e). See generally 16 CFR § 1.131 et seq. Moreover, difficult questions of law may be tested and definitively resolved before the private litigant enters the fray. The greater resources and expertise of the Commission and its staff render the private suitor a tremendous benefit aside from any value he may derive from a judgment or decree. Indeed, so useful is this service that government proceedings are recognized as a major source of evidence for private parties. See Bicks, The Department of Justice and Private Treble Damage Actions, 4 Antitrust Bull. 5 (1959); Loevinger, Handling a Plaintiff's Antitrust Damage Suit, 4 Antitrust Bull. 29 (1959).
11
Admittedly, there is little in the legislative history to suggest that Congress consciously intended to include Commission actions within the sweep of the tolling provision. But neither is there any substantial evidence that it consciously intended to exclude them. The fact of the matter is that the record of the 1914 legislative proceedings reveals an almost complete absence of any discussion on the tolling problem. It seems that Congress simply did not consider the extent of its coverage in the course of its deliberations.
12
It is in light of this legislative silence that we must determine whether § 4B is tolled by Commission proceedings. In resolving this question we must necessarily rely on the one element of congressional intention which is plain on the record the clearly expressed desire that private parties be permitted the benefits of prior government actions. Implicit in such an objective is the necessity that the tolling provision include Commission proceedings. Otherwise the benefits flowing from a major segment of the Government's enforcement effort would, in many cases, be denied to private parties. In this connection, and of crucial significance, is the fact that the potential advantages available to such litigants because of § 5(b) reach far beyond the specific and limited benefits accruing to them under § 5(a). Furthermore, the § 5(b) advantages flow as naturally from Commission proceedings as they do from Justice Department actions. Yet petitioner contends that § 4B must be tolled in the latter but not in the former. Such a grudging interpretation of the interrelationship of § 5(b) and § 4B, however, would collide head-on with Congress' basic policy objectives. Acceptance of petitioner's position would make enjoyment of these intended benefits turn on the arbitrary allocation of enforcement responsibility between the Department and the Commission, and we must therefore reject it.
13
It is true that the precise language of § 5(b) does not clearly encompass Commission proceedings. But it is not the literal wording of such a provision that is controlling where, as here, Congress has evidenced neither acceptance nor rejection of either interpretation, yet one effects a clearly expressed congressional purpose while the other defeats it. We stated the pivotal question for determination in such an event only this Term in Burnett v. New York Central R. Co., 380 U.S. 424, 427, 85 S.Ct. 1050, 1054 (1965): '(W)hether congressional purpose is effectuated by tolling the statute of limitations is given circumstances.' In order to determine that intent, we must examine 'the purposes and policies underlying the limitation provision, the Act itself, and the remedial scheme developed for the enforcement of the rights given by the Act.' Ibid. Guided by these criteria, we think it clear that congressional policy sustaining § 5(b) would be effectively served only by tolling the statute of limitations in cases such as this, and we deem that policy controlling. This analysis is not a novel one. Mr. Justice Holmes, sitting on circuit, noted in Johnson v. United States, 1 Cir., 163 F. 30, 32, 18 L.R.A., N.S., 1194:
14
'A statute may indicate or require as its justification a change in the policy of the law, although it expresses that change only in the specific cases most likely to occur to the mind. The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however, indirectly, that will should be recognized and obeyed. The major premise of the conclusion expressed in a statute, the change of policy that induces the enactment, may not be set out in terms, but it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.'
15
We hold, therefore, that the limitation provision of § 4B is tolled by Commission proceedings to the same extent and in the same circumstances as it is by Justice Department actions. In so holding we give effect to Congress' basic policy objectives in enacting § 5(b)—objectives which would be frustrated should we reach a contrary conclusion and thereby deprive large numbers of private litigants of the benefits of government antitrust suits simply because those suits were pursued by one governmental agency rather than the other.
IV.
16
Minnesota Mining further contends that even though § 5(b) tolls Commission proceedings, the suit here, insofar as it asserts Sherman Act claims, is not based in part on any matter complained of in the Commission's proceeding. We cannot agree.
17
New Jersey Wood's Sherman Act claims res on an alleged conspiracy to restrain and attempt to monopolize trade and commerce in the manufacture, sale and distribution of electrical insulation products. The purposes of the conspiracy were alleged to be: (1) to control Insulation Wires; (2) to prevent it from distributing New Jersey Wood products; (3) to insure that Insulation Wires' supplies were purchased from a Minnesota Mining subsidiary; (4) to effect tie-in sales of electrical insulation products with other Minnesota Mining products; and (5) to have Essex deal only with Insulation Wires in purchasing electrical insulation products to the exclusion of competitive distributors handling New Jersey Wood products. The effect of the conspiracy was alleged to be the complete disruption of the pattern of manufacture, sale and distribution that New Jersey Wood had enjoyed with Insulation Wires and denial to it of access to substantial national markets for electrical insulation products.
18
Certainly the allegations are based 'in part' on the Commission action. It charged that the Insulation Wires acquisition, along with that of another distributor, placed in the hands of Minnesota Mining, a manufacturer, two of the three largest distributors in the business; that following the acquisitions these distributors discontinued distribution of the products of a number of manufacturers who had used them prior to their acquisition by Minnesota Mining; and that the effect of such action by Minnesota Mining was 'the actual or potential lessening of competition' in the manufacture, sale and distribution of insulation products and the foreclosure of other manufacturers from a substantial share of the markets for said products. It appears to us that both suits set up substantially the same claims. It is true that the Commission's Clayton Act proceeding required proof only of a potential anticompetitive effect while the Sherman Act carries the more onerous burden of proof of an actual restraint. The Commission complaint, however, did allege an 'actual' as well as a 'potential' lessening of competition, i.e., manufacturers 'have been foreclosed from a substantial share of the markets.' Moreover, the monopolization count was phrased in terms of an 'attempt to monopolize,' which may be illegal though not successful. See United States v. Columbia Steel Co., 334 U.S. 495, 525, 531—532, 68 S.Ct. 1107, 1123, 1126, 92 L.Ed. 1533 (1948).
19
Minnesota Mining's claim seems to be that the crucial difference between the Commission and the New Jersey Wood proceedings is that the former alleges conduct that may substantially lessen competition while the latter asserts activity that has actually done so. We think that this is a distinction without a difference and does not deprive New Jersey Wood of the tolling effect of § 5(b). That clause provides for tolling as long as the private claim is based 'in part on any matter complained of' in the government proceedings. The fact that New Jersey Wood claims that the same conduct has a greater anti-competitive effect does not make the conduct challenged any less a matter complained of in the government action. It merely requires it to meet a greater burden of proof as to the effect of the conspiracy before a Sherman Act claim can be sustained.
20
Affirmed.
21
Mr. Justice HARLAN and Mr. Justice STEWART did not participate in the decision of this case.
22
Mr. Justice BLACK, dissenting.
23
Section 4B of the Clayton Act bars a private antitrust damage suit unless brought within four years after the cause of action arises.1 Section 5(b) of the Act, as amended, 15 U.S.C. § 16(b) (1964 ed.), however, suspends the running of this limitation period '(w)henever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws * * *.' I am unable to agree with the Court's holding that a purely administrative proceeding initiated by the Federal Trade Commission and decided by that same regulatory agency is the kind of 'civil or criminal proceeding * * * instituted by the United States * * *' which tolls the statute of limitations under § 5(b). The Court itself concedes that even as amended 'the precise language of § 5(b) does not clearly encompass Commission proceedings' and that 'there is little in the legislative history to suggest that Congress consciously intended to include Commission actions within the sweep of the tolling provision.' And the Solicitor General, while urging as amicus curiae the result the Court reaches today, candidly admits that this 'result is difficult and perhaps impossible to justify in terms of conventional analysis of the text and legislative history * * *.' It is because I think both the language of the statute and the legislative history persuasively, if not conclusively, show that Congress did not intend the construction the Court gives § 5(b) today, that I am unable to agree with its decision.
24
The whole of § 5, now divided into subdivisions (a) and (b), was passed in response to President Wilson's 1914 plea to Congress to enact a law designed to make it easier for antitrust victims to collect damages through private lawsuits since preparing an antitrust case against a major corporate defendant was a larger task than most injured persons could undertake. To accomplish that single purpose he recommended to Congress, as the Court notes, two things—that these victims be permitted to seek 'redress upon the facts and judgments proved and entered in suits by the Government' and also that 'the statute of limitations * * * be suffered to run against such litigants only from the date of the conclusion of the Government's action.' 51 Cong.Rec. 1964. Congress accepted the President's recommendation and passed § 5, a single section in two paragraphs, making 'a final judgment or decree * * * rendered in any criminal prosecution or in any suit or proceeding in equity brought by or on behalf of the United States * * * prima facie evidence' against a civil antitrust defendant and tolling the statute of limitations during the pendency of 'any suit or proceeding in equity or criminal prosecution * * * instituted by the United States * * *.' This language of § 5 as it passed the Congress in 1914 clearly did not refer to administrative proceedings but to antitrust suits or criminal prosecutions instituted by the Government in civil or criminal courts. Moreover, the purpose and effect of the two parts of this provision were obviously complementary, permitting the injured party to utilize a final judgment obtained by the Government and also providing a means whereby the injured party could await the result of the government action confident that his suit would not be barred by the statute of limitations. In the words of one of the committee reports, the 'entire provision is intended to help persons of small means who are injured in their property or business by combinations or corporations violating the antitrust laws.' H.R.Rep.No.627, 63d Cong., 2d Sess., 14. (Emphasis supplied.) See S.Rep.No.698, 63d Cong., 2d Sess., 45. Therefore, both the language and the complementary nature of the two paragraphs of § 5 ought to show beyond any doubt that the whole section as passed was intended to apply to the same kind of proceeding in the same kind of tribunal that is a proceeding brought in a civil or criminal court, the only tribunal which in common understanding has power to render the kind of 'final judgment or decree' mentioned in § 5(a).2 Furthermore, since the two paragraphs of § 5 when offered and when passed were regarded as an entity because of their identical language and purpose, it is not surprising that the Senators and Congressmen addressing themselves to § 5 did not specifically direct their remarks to the tolling provision as distinct from the effect to be given a court judgment or decree. Those discussing the measure naturally treated the 'suit or proceeding in equity' or 'criminal prosecution' set out in both paragraphs in identical terms as referring to the same kind of proceeding in the same kind of tribunal, namely a court. It is true that the language was changed in 1955 from 'suit or proceeding in equity' and 'criminal prosecution' to 'civil or criminal proceeding,' the present language, but the legislative history of the 1955 amendment affirmatively shows that there was no intention to affect in any way the kind of court proceedings necessary to suspend the statute of limitations. Thus, I am unable to go along with the Court in construing the tolling provision of § 5(b) as though it applies to both court and Trade Commission proceedings while treating § 5(a) as though it may apply to court proceedings only. Such a holding would, in my judgment, run counter to the whole legislative history of the 1914 Act.
25
I am setting out as an Appendix some of the legislative history of the original Act and of the 1955 amendment, which points out specifically something which does not surprise me at all: that while Congress was ready to make the final judgment of a court prima facie evidence against a defendant, it was at the same time entirely unwilling to give such effect to administrative hearings and orders and was also unwilling to toll the statute of limitations during the pendency of such proceedings. It is true that many administrative agencies now conduct hearings, make findings, and issue orders in a way more or less comparable to courts. I doubt, however, that the time has even yet come when Congress would be willing to compel judges and juries to treat administrative orders as prima facie proof of a violation of law, either civil or criminal, or to treat those proceedings as though they were conducted in a court of law with all the protections there afforded litigants.
26
I would reverse this judgment.
27
APPENDIX TO OPINION OF MR. JUSTICE BLACK, DISSENTING.
28
THE 1914 ACT.
29
Herewith for illustration are statements made about § 5 of the 1914 Clayton Act by Senators and Congressmen particularly interested in § 5, all of whom took part in the preparation and sponsorship of the 1914 bill or the discussions that took place as it went through the House and Senate.
30
Senator Walsh, the spokesman for the Judiciary Committee, led the fight for the House version of § 5 and defended it on the ground that the defendant 'has had an opportunity to try out before a court, with all the forms of the law, every question involved in the lawsuit. * * *' 51 Cong.Rec. 13851. (Emphasis added.) And Senator Walsh later added that 'Here the party has had his day in court. He has tried every issue, and it is simply a question, now that he has had it tried, whether he may insist upon a second trial.' 51 Cong.Rec. 13857. (Emphasis added.) Opponents of the 'conclusive evidence' proposal of the House bill never challenged the premise, implicit in the remarks of Senator Walsh and others, that only judgments rendered in judicial proceedings were contemplated by § 5. Not once did any member of Congress suggest that under the House version, administrative findings based upon evidence which would not be admissible in a court should be conclusive of the defendant's liability in a later treble-damage action.
31
Senator Walsh, in arguing that his proposal would not violate the Constitution, again emphasized that § 5 did not apply to administrative orders, but only to judgments or decrees of the courts:
32
'I want to say just a word with reference to the authorities to which the attention of the Senate has been invited * * *. Nobody questions them. They all lay down the rule that in an action brought against an individual who has never theretofore had his day in court you can not make a certificate or a recital or an order of an administrative board or anything of that kind conclusive evidence against him.' 51 Cong.Rec. 13856—13857. (Emphasis added.) On the other hand, there were Senators who thought a judgment or decree for a defendant should be equally binding on a treble-damage plaintiff. In opposing this idea, Senator White argued:
33
'Then, Mr. President, as has been said, it is burdensome enough to require parties to the litigation themselves to be bound by the findings of a court or jury in a particular case. So many things that we can not at the time possibly foresee influence such decisions. The way in which the evidence is produced may have its effect upon a jury or a court.
34
'The manner in which the case is handled by the lawyers employed may determine in the mind of a jury or a court what the verdict or the judgment shall be, and yet, Mr. President, those things should probably not have been controlling influences in the conclusions reached.' 51 Cong.Rec. 13900. (Emphasis added.)
35
And Senator Cummins said: 'But when the suit is brought, then the judgment or decree of the court in the suit that has been brought by the Government would be prima facie evidence of violation of the antitrust law * * *.' 51 Cong.Rec. 13850. (Emphasis added.)
36
When the bill left the conference committee and went back to the House, the managers were called on to defend the changes against charges that elimination of the criminal penalties had emasculated the bill. Chairman Webb of the House Judiciary Committee attempted to describe the proposed enforcement procedures in the strongest possible light. After reading the provision vesting enforcement responsibility in the Trade Commission, he stated:
37
'Now, the value of these two sections is this: That they not only give the individual the right to sue for treble damages where he pleases, and we not only suspend the statute of limitations against an individual if a Government suit is brought against a trust, but we also require the Federal Trade Commission to stop these practices and take those guilty of such practices into court.
38
'But that is not all. Some argue that after the Trade Commission takes jurisdiction that excludes individuals from pursuing these other remedies. The bill further provides:
39
"No order of the commission or board or the judgment of the court to enforce the same shall in any wise relieve or absolve any person from any liability under the antitrust acts.'
40
'So you have three or four distinct remedies, all of which may be invoked at the same time.' 51 Cong.Rec. 16274. (Emphasis added.)
41
It is clear therefore that Chairman Webb distinguished between suits by the 'Government'—the suits to which the tolling provision applied—and proceedings of the Federal Trade Commission. He believed that the statute was suspended only when actions were brought under the direction of the Attorney General. This was confirmed a few moments later by the following exchange:
42
'Mr. HARDY. Under the bill does the Government have the authority to bring suit for injunction as well as private parties?
43
'MR. WEBB. Yes. Section 15 gives the district attorneys under the direction of the Attorney General the right to apply for an injunction.' 51 Cong.Rec. 16276.
44
The day following Chairman Webb's remarks Representative Floyd, another of the House managers, again attempted to persuade the House that the enforcement scheme contemplated by the bill was strong:
45
'That is not all. Under section 5 of the bill any private litigant injured by the unlawful acts of any corporation where the Government of the United States has proceeded against such corporation and obtained a judgment, either in a court of law or equity, is allowed the use of that judgment or decree to show the unlawful acts of the combination to the full extent that it would be an estoppel between the Government and the original offender. * * * That is a new remedy and a most efficient remedy. The Government of the United States, acting in behalf of all of its citizens, prosecutes a trust, convicts it either in a criminal court or a civil court, and the private litigant, injured by the unlawful acts of such trust, has nothing to do in order to recover the three-fold damages except to prove the amount of damages and that the injury was done by this trust or corporation. * * *
46
'But that is not all. There are several other remedies provided in this bill. Under section 11 the violation of sections 2, 3, 7, and 8 may be enforced, respectively, by the Trade Commission, by the Interstate Commerce Commission, or by the Federal Reserve Board.' 51 Cong.Rec. 16319. (Emphasis added.)
47
Another relevant discussion in the House is the following:
48
'Mr. McKENZIE: If this section is left in the bill, do you not feel and believe that this decree that is mentioned in this section should be the decree of the court of last resort the Supreme Court of the land?
49
'Mr. VOLSTEAD. No.
50
'Mr. McKENZIE. You think it would be good policy to leave a matter of such great importance in the hands of an inferior court?
51
'Mr. VOLSTEAD. Yes.' 51 Cong.Rec. 9079.
52
As originally presented to the House, § 5 also made a 'judgment or decree' rendered in a 'suit or proceeding in equity brought by or on behalf of the United States' conclusive against any prospective treble-damage plaintiff. Opponents of this clause vigorously challenged the constitutionality of binding a party who had never had his 'day in court.' The debates made it clear time and again that the proceeding contemplated was an action brought for the United States by the Attorney General, not an administrative proceeding:
53
'Mr. SISSON. * * * (D)oes the gentleman believe that his rights in the court should be determined upon the questions raised by the Attorney General of the United States?
54
'Mr. PROUTY. Why, certainly not; the Constitution expressly prohibits it. In other words, the Attorney General could go in and prevent my having a trial before a jury.
55
'Mr. SISSON. That is the point I had in mind.
56
'Mr. PROUTY. By instituting a proceeding in equity and having the case tried.
57
'Mr. SISSON. That is the point I had in mind, that the Attorney General, if he was disposed to do so—we would not charge that of any particular Attorney General—might cook up a case which would directly defeat the rights of every individual if he had been injured.' 51 Cong.Rec. 9492.
58
Defenders of the proposition, on the other hand, stated:
59
'Mr. CULLOP. My question is this: Supposing a collusive suit was brought and the defendant won on the issue, then is every outsider barred from any further suit? According to this language he is.
60
'Mr. FLOYD of Arkansas * * *.
61
'* * * My answer to that proposition is that if the time ever comes in this Government when any Attorney General will enter into collusive suits with corporations and combinations engaged in unlawful acts, it will be an evil day for our Republic, a day when every statute will become useless and justice will become a mockery.' 51 Cong.Rec. 9489.
62
Furthermore, an amendment was in fact offered to the Senate which arguably would have resulted in bringing administrative proceedings within the scope of the phrase 'suit or proceeding.' The amendment met with opposition and was withdrawn. The House bill originally dealt only with a 'suit or proceeding in equity,' and did not apply to criminal proceedings. After the bill reached the Senate, Senator Bryan moved to strike out the words 'in equity,' so the provision would read simply 'any suit or proceeding.' As observed by Senator Reed, 'That would cover any kind of proceeding.' Senator Culberson proposed a substitute adding the phrase 'criminal prosecution or,' and retaining the phrase 'in equity.' Senator Bryan withdrew his broader proposal and accepted Senator Culberson's limited substitute. 51 Cong.Rec. 13897—13898.
63
The House initially passed the Act with four substantive sections, each having a criminal penalty attached. All of the criminal penalties were removed in the Senate or in conference. Senator Reed of Missouri, leading the opposition to the bill, charged repeatedly that the Clayton Act had been stripped of all force and effectiveness:
64
'We end by providing a smooth and easy road which may be traveled through the years, until finally a commission shall issue an innocuous, non-enforcible decree, a decree that can be vitalized only by being affirmed by a court. At the conclusion of all the litigation we propose to impose no penalty, levy no fine, send no one to jail, and we permit the culprit to preserve his swag!' 51 Cong.Rec. 15867. (Emphasis added.) Had the proponents of the measure contemplated the use of administrative findings as evidence it appears that the obvious answer to Senator Reed would have been that the bill does have teeth for the Commission's order would be admissible as prima facie evidence against the 'culprit,' and private claimants would be able to reclaim 'his swag,' three times over. Neither this, nor any other answer challenging the accuracy of Senator Reed's statement, was heard on the Senate floor, although his complaint was repeatedly made. And in the House, Representative Nelson charged:
65
'Finally, the penalty is cut out; they can do all these things, and the Trade Commission can only say, 'You must not to it any more.' Then there is the long delay in an appeal to the courts; and they go through the courts. And then what? There may be an injunction issued, but they have got away with the loot with impunity.' 51 Cong.Rec. 16325.
66
For further examples see 51 Cong.Rec. 9079, 9169, 9488—9490, 9492, 9494—9495, 12789—12790, 13850—13851, 13856—13857, 13897 13898, 13900, 14262, 14328, 15867, 15948, 15950, 16003, 16044, 16046, 16149, 16154, 16274, 16281, 16319, 16325.
67
THE 1955 AMENDMENT.
68
The committee reports on the amendment detailed carefully every change the bill would make, but there is absolutely no evidence that there was any intent to amend § 5(b) for the purpose of suspending the statute of limitations during the pendency of Federal Trade Commission hearings. See H.R.Rep. No. 422, 84th Cong., 1st Sess.; S.Rep.No.619, 84th Cong., 1st Sess., U.S.Code Cong.Admin. News 1955, p. 2328. And the debates and the hearings affirmatively show that no change was intended. For example, in the 1951 hearings Representative Patman appeared before the House subcommittee considering the bill and questioned whether § 5 had been changed to deny the right of a private litigant to use a judgment obtained by the Government. Representative Wilson assured him that: 'This doesn't change the present law.' Representative Keating, the author of the bill, then commented: 'I think there is a slight change in existing law where it refers to the subsequent numbers. There has to be a change in phraselogy in that because of what we have done in section 4. I believe that is the only change.' Hearings on H.R. 3408 before the Subcommittee on Study of Monopoly Power of the House Committee on the Judiciary, 82d Cong., 1st Sess., Part 3, 98—100. And on the floor of the House in the discussion of the bill which became the present law, Representative Quigley stated:
69
'It was the specific purpose of the committee in reporting this bill to in no way affect the substantive rights of individual litigants. It is simply a procedural change and suggested with the thought of setting up a uniform statute of limitations. That is the sole purpose.' 101 Cong.Rec. 5131.
70
Mr. Justice GOLDBERG, dissenting.
71
With all deference, I dissent. I agree with the Court, ante, at 321 that, as we recently stated in Burnett v. New York Central R. Co., 380 U.S. 424, 427, 85 S.Ct. 1050, 1054, the pivotal question for determination is 'whether congressional purpose is effectuated by tolling the statute of limitations in given circumstances.' I cannot agree, however, that the Court has correctly applied that test in this case. As my Brother BLACK has so well demonstrated in his dissenting opinion, both the language and legislative history of the statutes before us clearly show that Congress did not intend that the statute of limitations applicable to private antitrust actions be tolled by the institution of a Federal Trade Commission administrative proceeding. Cf. United States v. Welden, 377 U.S. 95, 84 S.Ct. 1082, 12 L.Ed.2d 152. It frustrates rather than effectuates congressional purpose to fail to honor the express intent of Congress in this given circumstance.
1
The case was considered on interlocutory appeal. 28 U.S.C. § 1292(b) (1958 ed.). Esses did not appeal and is not a party here.
2
During the pendency of the case in the District Court respondent filed an amended complaint. However, respondent's theories of recovery and the controlling legal questions are common to both pleadings.
3
38 Stat. 731, as amended, 15 U.S.C § 18 (1964 ed.).
4
26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2 (1964 ed.).
5
Section 4B of the Clayton Act, 69 Stat. 283, 15 U.S.C. § 15b (1964 ed.), provides that:
'Any action to enforce any cause of action under sections 15 or 15a of this title shall be forever barred unless commenced within four years after the cause of action accrued. No cause of action barred under existing law on the effective date of this section and sections 15a and 16 of this title shall be revived by said sections.'
6
Section 5(b), 38 Stat. 731, as amended, 15 U.S.C. § 16(b) (1964 ed.), provides:
'(b) Whenever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any
of the antitrust laws, but not including an action under section 15a of this title, the running of the statute of limitations in respect of every private right of action arising under said laws and based in whole or in part on any matter complained of in said proceeding shall be suspended during the pendency thereof and for one year thereafter: Provided, however, That whenever the running of the statute of limitations in respect of a cause of action arising under section 15 of this title is suspended hereunder, any action to enforce such cause of action shall be forever barred unless commenced either within the period of suspension or within four years after the cause of action accrued.'
7
See Highland Supply Corp. v. Reynolds Metals Co., 327 F.2d 725 (C.A.8th Cir. 1964).
8
Section 5(a) 38 Stat. 731, as amended, 15 U.S.C. § 16(a) (1964 ed.), provides:
'(a) A final judgment or decree heretofore or hereafter rendered in any civil or criminal proceeding brought by or on behalf of the United States under the antitrust laws to the effect that a defendant has violated said laws shall be prima facie evidence against such defendant in any action or proceeding brought by any other party against such defendant under said laws or by the United States under section 15a of this title, as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto: Provided, That this section shall not apply to consent judgments or decrees entered before any testimony has been taken or to judgments or decrees entered in actions under section 15a of this title.'
9
See Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 74 S.Ct. 257, 98 L.Ed. 273 (1954).
1
Section 4B of the Clayton Act, 69 Stat. 283, 15 U.S.C. § 15b (1964 ed.), provides that:
'Any action to enforce any cause of action under sections 15 or 15a of this title shall be forever barred unless commenced within four years after the cause of action accrued.'
2
And of course, it is not at all clear that this is a suit 'instituted by the United States.' The Department of Justice brings suits and criminal prosecutions in the name of the United States, while an independent regulatory agency sues and is sued in its own name. And the United States does not initiate the proceedings before an administrative agency. Here for example the Federal Trade Commission filed the proceeding against petitioner. However, because of view I take of the other language in the section, I find it unnecessary to decide this question.
| 78
|
381 U.S. 414
85 S.Ct. 1575
14 L.Ed.2d 692
KENNECOTT COPPER CORP.v.UNITED STATES.
No. 995.
Supreme Court of the United States
June 1, 1965
Arthur H. Dean and Howard T. Milman, for appellant.
Solicitor General Cox, Assistant Attorney General Orrick, Lionel Kestenbaum, Jerome S. Wagshal and Donald L. Hardison, for the United States.
PER CURIAM.
1
The motion to affirm is granted and the judgment is affirmed. Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 and United States v. Aluminum Co. of America, 377 U.S. 271, 84 S.Ct. 1283, 12 L.Ed.2d 314.
2
Mr. Justice HARLAN and Mr. Justice GOLDBERG, dissenting.
3
We would note probable jurisdiction and set the case for argument. In so voting, we indicate no opinion on the merits. Under the Expediting Act, 32 Stat. 823, as amended, 15 U.S.C. § 29 (1964 ed.), this is appellant's first and only appeal. So long as this statute remains on the books and Congress provides no intermediate review, see United States v. Singer Mfg. Co., 374 U.S. 174, 175, 83 S.Ct. 1773, 1774, 10 L.Ed.2d 823, it is our view that the policy of the Act is, in general, best served by plenary rather than summary dispositions of such appeals. Ibid. Of course, if the question presented by an appeal is plainly insubstantial or directly governed by a controlling decision of this Court, summary disposition would still be appropriate. Since we do not believe that this can be said of this case, we would give plenary consideration to this appeal.
| 78
|
381 U.S. 357
85 S.Ct. 1498
14 L.Ed.2d 443
The ATLANTIC REFINING COMPANY, Petitioner,v.FEDERAL TRADE COMMISSION. The GOODYEAR TIRE & RUBBER COMPANY, Petitioner, v. FEDERAL TRADE COMMISSION.
Nos. 292, 296.
Argued March 30, 1965.
Decided June 1, 1965.
Rehearing Denied Oct. 11, 1965.
See 86 S.Ct. 18.
[Syllabus from pages 357-359 intentionally omitted]
Frederic L. Ballard, Jr., Philadelphia, Pa., and John F. Sonnett, New York City, for petitioners.
Daniel M. Friedman, Washington, D.C., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
The Federal Trade Commission has found that an agreement between the Atlantic Refining Company (Atlantic) and the Goodyear Tire & Rubber Company (Goodyear), under which the former 'sponsors' the sale of the tires, batteries and accessory TBA products of the latter to its wholesale outlets and its retail service station dealers, is an unfair method of competition in violation of § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U.S.C. § 45 (1964 ed.).1 Under the plan Atlantic sponsors the sale of Goodyear products to its wholesale and retail outlets on an overall commission basis. Goodyear is responsible for its sales and sells at its own price to Atlantic wholesalers and dealers for resale; it bears all of the cost of distribution through its warehouses, stores and other supply points and carries on a joint sales promotion program with Atlantic. The latter, however, is primarily responsible for promoting the sale of Goodyear products to its dealers and assisting them in their resale; for this it receives a commission on all sales made to its wholesalers and dealers. The hearing examiner, with the approval of the Commission and the Court of Appeals, enjoined the use of direct methods of coercion on the part of Atlantic upon its dealers in the inauguration and promotion of the plan. Atlantic does not seek review of this phase of the case. However, the Commission considered the coercive practices to be symptomatic of a more fundamental restraint of trade and found the sales-commission plan illegal in itself as 'a classic example of the use of economic power in one market * * * to destroy competition in another market. * * *' 58 F.T.C. 309, 367. It prohibited Atlantic from participating in any such commission arrangement.2 Similarly, it forbade Goodyear from continuing the arrangement with Atlantic or any other oil company.3 Goodyear and Atlantic filed separate appeals. The Court of Appeals approved the findings of the Commission and affirmed its order. 'Appraising the broader aspects of the system (used by Atlantic and Goodyear) as a tying arrangement,' it agreed with the Commission that it injured 'competition in the distribution of TBA at the manufacturing, wholesale, and retail levels.' 331 F.2d 394, 402. We granted certiorari, 379 U.S. 943, because of the importance of the questions raised and especially in light of the holding of the Court of Appeals for the District of Columbia Circuit in Texaco, Inc. v. Federal Trade Comm'n, 118 U.S.App.D.C. 366, 336 F.2d 754, which is in apparent conflict with these cases. We affirm the judgments of the Court of Appeals.
I.
2
Since Atlantic has not sought review of paragraphs 5 and 6 of the Commission's order as to its use of overt acts of coercion on its wholesalers and retailers those portions of the order are final. We therefore do not set out in detail all of the facts which are so carefully examined in the opinion of the Court of Appeals.
3
Atlantic is a major producer, refiner and distributor of oil and its by-products. Its market is confined to portions of 17 States along the eastern seaboard.4 Its distribution system consists of wholesale distributors who purchase gasoline and lubricants in large quantities and retail service station operators who do business either as lessees of Atlantic or as contract dealers selling its products. In 1955 Atlantic had 2,493 lessee dealers, who purchased 39.1% of its gasoline sales, and 3,044 contract dealers, who bought 18.1%.5 About half of the contract dealers were service station operators; the remainder were operators of garages, grocery stores and other outlets which sell gasoline but do not handle tires, batteries and accessories.
4
Goodyear is the largest manufacturer of rubber products in the United States with sales of over $1,000,000,000 in 1954. It distributes tires, tubes and accessories through 57 warehouses located throughout the country. It does not warehouse batteries; 'Goodyear' batteries are tradenamed by it but manufactured and directly distributed to Goodyear outlets by the Electric Auto-Lite Company and Gould-National Batteries, Inc. Goodyear also sells its products at wholesale and retail through about 500 company-owned stores and through numerous independent dealers. These independent franchised dealers number more than 12,000, there being among them a number of Atlantic wholesale petroleum distributors and retail petroleum jobbers. Goodyear has also had a substantial number of non-franchised dealers which includes most service station customers, including the Atlantic stations involved here.
5
Gasoline service stations are particularly well suited to sell tires, batteries and accessories. They constitute a large and important market for those products. Since at least 1932 Atlantic has been distributing such products to its dealers. In 1951 it inaugurated the sales-commission plan.6 Its contract with Goodyear covered three regions: Philadelphia-New Jersey, New York State and New England.
6
The Goodyear-Atlantic agreement required Atlantic to assist Goodyear 'to the fullest practicable extent in perfecting sales, credit, and merchandising arrangements' with all of Atlantic's outlets. This included announcement to its dealers of its sponsorship of Goodyear products followed by a field representative's call to 'suggest * * * the maintenance of adequate stocks of merchandise' and 'maintenance of proper identification and advertising' of such merchandise.7 Atlantic was to instruct its salesmen to urge dealers to 'vigorously' represent Goodyear, and to 'cooperate with and assist' Goodyear in its 'efforts to promote and increase the sale' by Atlantic dealers of Goodyear products. And it was to 'maintain adequate dealer training programs in the sale of tires, batteries, and accessories.' In addition, the companies organized joint sales organization meetings at which plans were made for perfecting the sales plan. One project was a 'double teaming' solicitation of Atlantic outlets by representatives of both companies to convert them to Goodyear products. They were to call on the dealers together, take stock orders, furnish initial price lists and project future quotas of purchases of Goodyear products. Goodyear also required that each Atlantic dealer be assigned to a supply point maintained by it, such as a warehouse, Goodyear store, independent dealer or designated Atlantic distributor or retail dealer. Atlantic would not receive any commission on purchases made outside of an assigned supply point. Its commission of 10% on sales to Atlantic dealers and 7.5% on sales to its wholesalers was paid on the basis of a master sheet prepared by Goodyear and furnished Atlantic each month. This list was broken down so as to show the individual purchases of each dealer (except those whose supply points for Goodyear products were Atlantic wholesalers). Under this reporting technique, the Commission found, 'Atlantic may determine the exact amount of sponsored TBA purchased by each Atlantic outlet * * *.' 58 F.T.C. 309, 351. Goodyear also furnished, this time at the specific request of Atlantic, a list of the latter's recalcitrant dealers who refused to be identified with the 'Goodyear Program.' These lists Atlantic forwarded to its district offices for 'appropriate action.' On one occasion a list of 46 such dealers was furnished Atlantic officials by Goodyear. The Commission found that 'the entire group * * * was thereafter signed to Goodyear contracts and Goodyear advertising signs were installed at their stations.' Id., at 346—347.
7
The effectiveness of the program is evidenced by the results. Within seven months after the agreement Goodyear had signed up 96% and 98%, respectively, of Atlantic's dealers in two of the three areas assigned to it. In 1952 the sale of Goodyear products to Atlantic dealers was $4,175,890—40% higher than Atlantic's sales during the last year of its purchase-resale plan with Lee tires and Exide batteries. By 1955 these sales of Goodyear products amounted to $5,700,121. Total sales of Goodyear and Firestone products from June 1950 to June 1956 were over $52,000,000. This enormous increase, the findings indicate, was the result of the effective policing of the plan. The reports of sales by Goodyear to Atlantic enabled it to know exactly the amount of Goodyear products the great majority of its dealers were buying.
8
The Commission stressed the evidence showing that 'Atlantic dealers have been orally advised by sales officials of the oil company that their continued status as Atlantic dealers and lessees will be in jeopardy if they do not purchase sufficient quantities of sponsored' tires, batteries and accessories. Id., at 342. Indeed, some dealers lost their leases after being reported for not complying with the Goodyear sales program. But we need not detail this feature of the case since Atlantic has conceded the point by not perfecting an appeal thereon.
II.
9
Section 5 of the Federal Trade Commission Act declares '(u)nfair methods of competition in commerce, and unfair * * * acts or practices in commerce * * * unlawful.' In a broad delegation of power it employers the Commission, in the first instance, to determine whether a method of competition or the act or practice complained of is unfair. The Congress intentionally left development of the term 'unfair' to the Commission rather than attempting to define 'the many and variable unfair practices which prevail in commerce * * *.' S.Rep.No. 592, 63d Cong., 2d Sess., 13. As the conference report stated, unfair competition could best be prevented 'through the action of an administrative body of practical men * * * who will be able to apply the rule enacted by Congress to particular business situations, so as to eradicate evils with the least risk of interfering with legitimate business operations.' H.R.Conf.Rep. No. 1142, 63d Cong., 2d Sess., 19. In thus divining that there is no limit to business ingenuity and legal gymnastics the Congress displayed much foresight. See Federal Trade Comm'n v. Cement Institute, 333 U.S. 683, 693, 68 S.Ct. 793, 799, 92 L.Ed. 1010 (1948). Where the Congress has provided that an administrative agency initially apply a broad statutory term to a particular situation, our function is limited to determining whether the Commission's decision 'has 'warrant in the record' and a reasonable basis in law.' National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111, 131, 64 S.Ct. 851, 861, 88 L.Ed. 1170 (1944). While the final word is left to the courts, necessarily 'we give great weight to the Commission's conclusion * * *.' Federal Trade Comm'n v. Cement Institute, supra, 333 U.S. at 720, 68 S.Ct. at 812.
III.
10
Certainly there is 'warrant in the record' for the findings of the Commission here. Substantial evidence supports the conclusion that notwithstanding Atlantic's contention that it and its dealers are mutually dependent upon each other, they simply do not bargain as equals. Among the sources of leverage in Atlantic's hands are its lease and equipment loan contracts with their cancellation and short-term provisions. Only last Term we described the power implications of such arrangements in Simpson v. Union Oil Co. of Cal., 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964), and we need not repeat that discussion here. It must also be remembered that Atlantic controlled the supply of gasoline and oil to its wholesalers and dealers. This was an additional source of economic leverage, United States v. Loew's, Inc., 371 U.S. 38, 45, 83 S.Ct. 97, 102, 9 L.Ed.2d 11 (1962), as was its extensive control of all advertising on the premises of its dealers.
11
Furthermore, there was abundant evidence that Atlantic, in some instances with the aid of Goodyear, not only exerted the persuasion that is a natural incident of its economic power, but coupled with it direct and over threats of reprisal such as are now enjoined by paragraphs 5 and 6 of the order. Indeed, the Commission could properly have concluded that it was for this bundle of persuasion that Goodyear paid Atlantic its commission. We will not repeat the manner in which this sponsorship was carried out. It is sufficient to note that the most impressive evidence of its effectiveness was its undeniable success within a short time of its inception. In 1951, seven months after the sales-commission plan had gone into effect, Goodyear had enjoyed great success in signing contracts with Atlantic dealers despite the fact that a 1946—1949 survey had shown that 67% of the dealers had preferred Lee tires and 76% Exide batteries.
12
With this background in mind, we consider whether there was a 'reasonable basis in law' for the Commission's ultimate conclusion that the sales-commission plan constituted an unfair method of competition.
IV.
13
At the outset we must stress what we do not find present here. We recognize that the Goodyear-Atlantic contract is not a tying arrangement. Atlantic is not required to tie its sale of gasoline and other petroleum products to purchases of Goodyear tires, batteries and accessories. Nor does it expressly require such purchases of its dealers. But neither do we understand that either the Commission or the Court of Appeals held that the sales-commission arrangement was a tying scheme. What they did find was that the central competitive characteristic was the same in both cases—the utilization of economic power in one market to curtail competition in another. Here that lever was bolstered by actual threats and coercive practices. As our cases hold, all that is necessary in § 5 proceedings to find a violation is to discover conduct that 'runs counter to the public policy declared in the' Act. Fashion Originators' Guild of America v. Federal Trade Comm'n, 312 U.S. 457, 463, 61 S.Ct. 703, 706, 85 L.Ed. 949 (1941). But this is of necessity, and was intended to be, a standard to which the Commission would give substance. In doing so, its use as a guideline of recognized violations of the antitrust laws was, we believe, entirely appropriate. It has long been recognized that there are many unfair methods of competition that do not assume the proportions of antitrust violations. Federal Trade Comm'n v. Motion Picture Advertising Service Co., 344 U.S. 392, 394, 73 S.Ct. 361, 363, 97 L.Ed. 426 (1953). When conduct does bear the characteristics of recognized antitrust violations it becomes suspect, and the Commission may properly look to cases applying those laws for guidance.
14
Although the Commission relied on such cases here, it expressly rejected a mechanical application of the law of tying arrangements. Rather it looked to the entire record as a basis for its conclusion that the activity of Goodyear and Atlantic impaired competition at three levels of the tires, batteries and accessories industry. It found that wholesalers and manufacturers of competing brands, and even Goodyear wholesalers who were not authorized supply points, were foreclosed from the Atlantic market. In addition, it recognized the obvious fact that Firestone and Goodyear were excluded from selling to Atlantic's dealers in each other's territories. Both of these effects on competition flowed from the contract itself. It also found that the plight of Atlantic wholesalers and retailers was equally clear. They had to compete with other wholesalers and retailers who were free to stock several brands, but they were effectively foreclosed from selling brands other than Goodyear. This restraint is in this respect broader than the one found in International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947), where the dealers could stock other salt if they could buy it at lower prices. Here the dealers could buy only at Goodyear's price.
15
Thus the Commission was warranted in finding that the effect of the plan was as though Atlantic had agreed with Goodyear to require its dealers to buy Goodyear products and had done so. It is beyond question that the effect on commerce was not insubstantial. In International Salt Co., the market foreclosed was $500,000 annually. Firestone and Goodyear sales alone exceeded $11,000,000 in 1955 and $50,000,000 in six years, and more than 5,500 retailers and wholesalers were affected.
16
Goodyear and Atlantic contend that the Commission should have made a far more extensive economic analysis of the competitive effect of the sales-commission plan, examining the entire market in tires, batteries and accessories. But just as the effect of this plan is similar to that of a tie-in, so is it unnecessary to embark upon a full-scale economic analysis of competitive effect. We think it enough that the Commission found that a not insubstantial portion of commerce is affected. See United States v. Loew's, Inc., 371 U.S. 38, 45, n. 4, 83 S.Ct. 97, 102 (1962); International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12 (1947).
17
Nor can we say that the Commission erred in refusing to consider evidence of economic justification for the program. While these contracts may well provide Atlantic with an economical method of assuring efficient product distribution among its dealers they also amount to a device that permits suppliers of tires, batteries and accessories, through the use of oil company power, to effectively sew up large markets. Upon considering the destructive effect on commerce that would result from the widespread use of these contracts by major oil companies and suppliers, we conclude that the Commission was clearly justified in refusing the participants an opportunity to offset these evils by a showing of economic benefit to themselves. Northern Pacific R. Co. v. United States, 356 U.S. 1, 6—7, 78 S.Ct. 514, 518, 519, 2 L.Ed.2d 545 (1958).
18
The short of it is that Atlantic with Goodyear's encouragement and assistance, has marshaled its full economic power in a continuing campaign to force its dealers and wholesalers to buy Goodyear products. The anticompetitive effects of this program are clear on the record and render unnecessary extensive economic analysis of market percentages or business justifications in determining whether this was a method of competition which Congress has declared unfair and therefore unlawful.
V.
19
We now turn to the matter of relief. As we have said, the Commission's order forbids Atlantic's participation in any contract with any supplier of tires, batteries and accessories whereby it receives anything of value in connection with the sale of such products by any marketer. It also prohibits Goodyear from continuing or effecting any contract with Atlantic, 'or with any other marketing oil company,' whereby Goodyear pays anything of value to the oil company in connection with the sale of tires, batteries and accessories by Goodyear to wholesalers or retailers of the oil company.
20
1. We first consider Atlantic, whose major argument is that the order is arbitrary and goes too far. It disallows the sales-commission plan, Atlantic says, but permits reinstitution of the old purchase-resale plan even though the latter has the same anticompetitive effects and is a less effective method of distribution. This position flows from the language of the order which prohibits Atlantic's receipt of anything of value in connection with the sale of tires, batteries and accessories by any marketer 'other than The Atlantic Refining Company.' The merits of the purchaseresale plan, however, were not before the Commission and we therefore have no occasion to pass upon them. Nor do we believe that the order is too broad. Section 5(b) empowers the Commission to issue a cease-and-desist order against anyone using an unfair method of competition in commerce. The Commission was of the opinion that to enjoin the use of overt coercive tacties was insufficient. We think it was justified in this conclusion. The long existence of the plan itself, coupled with the coercive acts practiced by Atlantic pursuant to it, warranted a decision to require more. The Commission could have decided that to uproot the practice required its complete prohibition; otherwise dealers would not enjoy complete freedom from unfair practices which the Act condemns. These are matters well within the ambit of the Commission's authority.
21
2. As for Goodyear we hold that the order is entirely within the power of the Commission. Both the Commission and the Court of Appeals stressed that the sales-commission plan enabled Goodyear 'to integrate (into) its own nationwide distribution system the economic power possessed by Atlantic over its wholesale and retail petroleum outlets.' 58 F.T.C., at 348. In addition, the Commission dedicated a considerable portion of its opinion to Goodyear's role in carrying it out. Thus, although it is the oil company's power and overt acts toward its outlets that outlaw the commission plan, the Commission was not restricted solely to an examination of its activity. Rather, in deciding upon the relief to be entered against Goodyear, it could appropriately consider its propensity for harnessing and utilizing that power. Because of the relevance of that evidence to our present inquiry we will consider it here in some detail.
22
Goodyear was no silent or inactive partner in the implementation of the sales-commission plan. It did not simply sit back and passively accept whatever benefits might accrue to it from the Atlantic contract. Indeed, the most striking aspect of the program, in the Commission's view, was the degree to which the petitioners worked together to achieve the program's success. A Goodyear representative put it very neatly when he said: 'After years of courtship Atlantic and Goodyear have wed. * * * We welcome wholeheartedly this merger.'
23
Examples of this close cooperation were numerous. Atlantic had a rather large turnover in dealerships, as well as a substantial number of new station openings each year. With the selection of persons to man these stations, Goodyear supply points were notified by Atlantic before they actually began operations, thus allowing Atlantic-Goodyear teams an opportunity to call on the prospective dealer, to get initial orders before local competitors and to condition acceptance of the Goodyear line. Goodyear brands were used for demonstration in Atlantic training schools for these new dealers, and discussions of tires, batteries and accessories at these schools were often conducted by representatives of both Atlantic and Goodyear.
24
Moreover, Atlantic gave Goodyear lists of its dealers so that the latter could remove advertising for other products and replace it with its own. Goodyear sent lists of dealers refusing to accept its advertising to Atlantic for 'appropriate action'; and it will be recalled that on one occasion when a list of 46 such dealers was forwarded to Atlantic, all soon fell into line. This is a particularly impressive example of Goodyear's inclination to use Atlantic's power for its own benefit. And there are more.
25
The reporting technique used by petitioners was especially revealing. Through it, Atlantic could determine the exact amount of sponsored products purchased by each Atlantic retail outlet from its assigned supply point. Goodyear supplied this information sua sponte insofar as the record shows. Ostensibly it was used in determining commissions due Atlantic. What makes it suspect is the detail with which it was compiled—wholly unnecessary for commission-payment purposes. Its potential use for channeling pressures upon recalcitrant dealers is obvious. And when considered alongside the admitted overt coercive practices of Atlantic, this list becomes a potent device in ensuring the success of the program.
26
The Commission also found that Goodyear and Atlantic concluded that the most effective merchandising tactic was dual solicitation or so-called 'double-teaming.' Goodyear relied heavily on this technique and had urged it on the oil companies in a 1951 letter from its sales-commission program manager. The Commission found that 'Goodyear thus appeared confident that the presence of an Atlantic salesman together with the Goodyear representative would render unnecessary any higgling or haggling over price before obtaining an initial order for TBA from Atlantic dealers.' 58 F.T.C., at 355. (Emphasis in the original.) Goodyear's confidence was justified, for as the Commission observed, the annual dealer evaluation by Atlantic salesmen carried substantial weight when the district managers decided upon annual lease extensions, and dealers were therefore understandably susceptible to the encouragement of Goodyear salesmen when Atlantic men were nearby looking over their shoulders. Thus, the Commission was well justified in concluding that Goodyear had in effect purchased a 'captive market.'
27
With the preceding discussion in mind, we turn to Goodyear's relationships with other oil companies. As of December 1964 it had sales-commission agreements with 20 other oil companies. Nine of these contracts were before the Commission in the instant case and were found to be 'in all material respects identical with the Goodyear-Atlantic contract.' Id., at 352. They similarly require the companies to assist actively in the 'selling and promotion' of Goodyear products. There is specific evidence in the record of the short-term lease agreements used by Shell, Sinclair and Sherwood Bros., three of the companies with which Goodyear has such agreements. Moreover, there was some indication that only three oil companies use three-year leases. Furthermore, there was evidence of practices by at least four oil companies and Goodyear similar to those existing under the Atlantic arrangement. These included threats as well as more subtle pressures.
28
Goodyear complains that there is no evidence of the economic power of many of the companies with which it has sales-commission plans. However, the Commissions's order does not directly restrict the activities of these companies. Goodyear, on the other hand, was before the Commission and was found to be a transgressor. There was substantial evidence of its propensity to use the power structure of Atlantic and at least four other oil companies to further its own distribution program. Nor is it any objection for Goodyear to claim that it did not exert any overt coercive pressures on the oil companies' outlets. It is of little consequence that Atlantic actually applied the pressure. For so close was the teamwork of the two companies that, even with blinders on, Goodyear could not have been ignorant of those practices. It is difficult to escape the conclusion that there would have been little point in paying substantial commissions to oil companies were it not for their ability to exert power over their wholesalers and dealers—an ability adequately demonstrated on this record. Its allowance of these substantial overriding commissions in fact paid off handsomely. Goodyear's sales under its various sales-commission contracts rose from $16,700,000 in 1951 to $36,000,000 in 1955
29
The Commission, of course, has 'wide discretion in its choice of a remedy deemed adequate to cope with * * * unlawful practices * * *.' Jacob Siegel Co. v. Federal Trade Comm'n, 327 U.S. 608, 611, 66 ,S.Ct. 758, 760, 90 L.Ed. 888 (1946). Furthermore, it acts within the limits of its authority when it bars repetitions of similar conduct with other parties. Federal Trade Comm'n v. Henry Broch & Co., 368 U.S. 360, 364, 82 S.Ct. 431, 433, 7 L.Ed.2d 353 (1962). There was ample evidence establishing on Goodyear's part a course of conduct lasting over 14 years aimed at utilizing oil company power structures to curtail competition in tires, batteries and accessories. We think that the Commission could appropriately conclude that this course of conduct required forbidding the use of sales-commission plans by Goodyear completely.
30
This order does not necessarily prohibit Goodyear from making contracts with companies not possessed of economic power over their dealers. The evidence in this particular record, however, does involve relationships such as it has enjoyed with Atlantic and its propensity to use those relationships for an unfair competitive advantage. Goodyear offered no evidence that it has arrangements differing from those mentioned in the instant case. In these circumstances it is sufficient to point out that in the event it has such a contract with such a company it may seek a reopening of the order approved today. The Commission has statutory power to reopen and modify its orders at all times. But Congress has placed in the Commission in the first instance the power to shape the remedy necessary to deal with unfair methods of competition. We will interfere only where there is no reasonable relation between the remedy and the violation. Federal Trade Comm'n v. Ruberoid Co., 343 U.S. 470, 473, 72 S.Ct. 800, 803, 96 L.Ed. 1081 (1952). On this record we cannot say that the Commission's remedy is unreasonable and the judgments are therefore affirmed.
31
Affirmed.
32
Mr. Justice STEWART, whom Mr. Justice HARLAN joins, dissenting.
33
That part of the Commission's order enjoining the petitioners from engaging in 'coercive conduct' designed to compel Atlantic dealers to handle Atlantic- sponsored tires, batteries, and accessories is clearly correct. There is ample evidence that Atlantic coerced its dealers into the exclusive handling of the sponsored goods by threatening the cancellation of dealer franchises. Not only was there direct evidence of the making of such threats; the nearly universal shift to Goodyear's products, coming shortly after the dealers expressed their preference for competing brands would itself indicate that the change was wrought by something more than simple persuasion. On the basis of this evidence, the Commission reasonably concluded that Atlantic had imposed on its dealers an arrangement whereby continued maintenance of their relationship with Atlantic depended upon their handling the sponsored products, despite the absence of contractual terms to this effect and Atlantic's protests that its 'official' policy was one of free choice.
34
But granting that the Commission validly found that the petitioners had engaged in coercive practices amounting to a violation of § 5 of the Act does not lead me to conclude that its order enjoining the use of any sales-commission plan of distribution is supportable. In essence, the sales-commission agreement between Atlantic and Goodyear provided Atlantic with a commission on all sales made by Goodyear to the Atlantic dealers in exchange for Atlantic's sponsorship of the Goodyear products. The responsibility for making the sales and deliveries was Goodyear's, though Atlantic undertook to engage in various activities in support of the Goodyear sales effort. This method of distribution was adopted by Atlantic to replace a purchase-resale plan which it had previously employed and found unsatisfactory. Under the purchase-resale plan, Atlantic purchased the tires, batteries, and accessories, warehoused them, and sold them to its dealers. The principal advantage accruing to Atlantic from adoption of the sales-commission plan was that it enabled Atlantic to dispense with maintaining its own storage and distribution facilities. Under both systems, Atlantic had a financial interest in the sale of the sponsored products and, for all that appears, the same incentive to maximize its dealers' purchases of them.
35
There is no reason to assume that the sales-commission plan of distribution gave to Atlantic any distinctive capacity to effect the arrangement which is the gravamen of the violation proved. The core of that violation is Atlantic's coercion of its dealers into handling only sponsored products by threatening to cancel their franchises and indulging in a variety of related coercive practices, thereby raising substantial barriers to competition in that segment of the market for tires, batteries, and accessories represented by its dealers. This it could have done as easily under the sales-commission plan, the purchase-resale plan, or any plan of distribution which gave it a financial interest in the sale of any particular line of tires, batteries and accessories.
36
Indeed the Commission itself recognized that whatever power Atlantic may have over its dealers does not derive from this particular means of distribution:
37
'Atlantic has sufficient economic power with respect to its wholesale and retail petroleum distributors to cause them to purchase substantial quantities of sponsored TBA even without the use of overt coercive tactics or of written or oral tying agreements, and this power is a fact existing independently of the particular method of distributing or sponsoring TBA used by Atlantic.'*
38
Therefore, to the extent that the Commission's order is based on the premise that the sales-commission plan confers upon Atlantic some distinctive capacity to coerce its dealers into handling sponsored products, and thereby exclude competing suppliers, it is without foundation. Insofar as this exclusion resulted from threats of franchise cancellation and related coercive tactics, that part of the order directed at these practices will afford the necessary relief.
39
The Commission's order need not be justified on a showing that the plan confers any distinctive capacity for coercion upon Atlantic, however, if it can be demonstrated that the plan is merely one variant of a broader category of activity which could be prohibited under § 5. It would be less than candid to deny that aggressive salesmanship by Atlantic representatives is apt to meet with more than ordinary success when directed at Atlantic dealers, even though the most scrupulous obedience is accorded to the Commission's order prohibiting coercion. Given the disparity of financial resources and the natural desire of the dealers to maintain a cordian relationship with Atlantic, some competitive advantage will necessarily accrue to Atlantic's sponsorship of a particular line of tires, batteries, and accessories under any plan of distribution. This advantage is the inevitable result of the market structure in which Atlantic and its dealers find themselves, and has nothing to do with the particular method which Atlantic might use to market a line of products. The disparity in size and financial strength, the short term of the prevailing leases, the dire financial consequences attendant upon lease cancellation, and the established market preference for certain brands of gasoline—all contribute to give Atlantic a leverage over its dealers and a corresponding power to effect some exclusion of competition.
40
The Commission's order can thus be understood as a measure to prevent such exclusion by taking a step toward the total exclusion of Atlantic from the marketing of tires, batteries, and accessories. Indeed, once it is conceded that the sales-commission plan makes no distinctive contribution to Atlantic's coercive capacity, this would seem the only conceivable justification for the Commission's order. This justification, however, is without foundation in law, for it assumes that § 5 of the Federal Trade Commission Act, which proscribes unfair methods of competition, prohibits the marketing of complementary goods by a manufacturer or processor enjoying some undefined measure of economic leverage vis-a -vis his distributors. So long as the manufacturer does enjoy some such leverage, his marketing of complementary goods through an established system of distributorships will tend to effect some exclusion of competition, whether those goods be distributed by another through a sales-commission plan, or purchased and resold by the manufacturer, or indeed manufactured and sold by him.
41
I cannot believe that § 5 was intended to allow the Commission to block the expansion of an enterprise into the marketing of such complementary items. Section 5 prohibits unfair methods of competition. The coercive practices enjoined by paragraphs five and six of the order apart, no unfairness is claimed in any of the practices employed by Atlantic. All concede that the continuing exclusionary pressure, to the extent it exists, derives from the imbalance of economic power between the two parties, rather than from any unfair feature of the sales-commission plan. To use an unfair practice charge to punish an enterprise for consequences inevitably flowing from its position in the structure of commerce is a grave distortion of the statute, imposing a massive and unjustifiable restraint on entrepreneurial action. Henceforth, large concerns marketing their products through smaller distributors stand vulnerable to the charge that their methods of competition are unfair because they have done no more than add a complementary product to those already sold through their distributors. I can find no warrant for this position in the words of the statute, in the economic policy it reflects, or in any of the cases decided under it.
42
In short, there is no justification whatever for that part of the Commission's order which prohibits the petitioners from employing the sales-commission plan of distribution. An order based on the premise that the Commission could enjoin Atlantic from any marketing at all of tires, batteries, and accessories is without foundation in the statute; an order based on the premise that the plan confers on Atlantic some distinctive capacity for coercion is without foundation in fact. Baseless in fact and in law, this order inflicts significant and undeserved damage upon Atlantic. Unjustifiable Commission orders imposing such damage on corporate enterprise, and ultimately on the public, cannot be sanctioned by invocation of abstractions regarding the deference properly owed expert tribunals in devising remedial measures. It is to avoid just such errors as inhere in this order that the power of judicial review was granted to the courts—errors which, serving no public purpose, impose senseless damage on the private sector of our economy.
43
For these reasons I would reverse the judgment of the Court of Appeals approving the Commission's prohibition of the use of the sales-commission plan by Atlantic. I think the Commission's order as to Goodyear should likewise have been set aside by the Court of Appeals. That order is not only riven with the same defects, but in addition prohibits Goodyear from entering into sales-commission agreements with oil companies which, so far as we know, have never practiced the coercive techniques used by Atlantic, and which are not in a position to exercise any leverage at all over their dealers.
44
Mr. Justice GOLDBERG, dissenting.
45
I would vacate the judgments below and remand these cases to the Commission, since in my view the Commission has not set forth the basis for its broad orders with sufficient clarity and completeness, so that they can be properly reviewed. Cf. United States v. Chicago, M., St. P. & P.R. Co., 294 U.S. 499, 511, 55 S.Ct. 462, 467, 79 L.Ed. 1023; Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 197, 61 S.Ct. 845, 853, 85 L.Ed. 1271; Burlington Truck Lines v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207; National Labor Relations Board v. Metropolitan Life Ins. Co., 380 U.S. 438, 85 S.Ct. 1061, 13 L.Ed. 951.
46
Atlantic does not here dispute the fact that it engaged in practices to coerce its dealers into purchasing the sales-commission-sponsored TBA. Moreover, I agree with the Court that the record is sufficient to support the finding that Goodyear participated in these coercive practices. Ante, at 373—375. Therefore, I would have no difficulty in affirming the Commission's orders if the Commission had ordered Atlantic and Goodyear to cease using sales-commission TBA plans as a remedy necessary to cure these coercive practices and prevent their recurrence. See United States v. Loew's, Inc., 371 U.S. 38, 53, 83 S.Ct. 97, 102, 9 L.Ed.2d 11.
47
The Commission's opinion, however, does not appear to rest these orders on such a basis. Rather, it considered Atlantic's coercive activities 'as mere symptoms of a more fundamental restraint of trade inherent in the sales commission itself.' 58 F.T.C. 309, 348. (Emphasis added.) Apparently it was because the Commission believed that Atlantic's participation in a sales-commission plan inherently restricted its dealers' free choice in TBA purchasing that it enjoined Atlantic and Goodyear from entering into any sales-commission plans, with each other or others. It is on this basis that the Commission action must be reviewed. The propriety of agency action must be judged 'solely by the grounds invoked by the agency,' Securities & Exchange Comm'n v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995. See National Labor Relations Board v. Metropolitan Ins. Co., supra; Burlington Truck Lines v. United States, supra, 371 U.S. at 168, 83 S.Ct. 239.
48
When looked at on this basis, however, it becomes obvious that the Commission has not supported its decision with adequate findings and conclusions, set forth with sufficient clarity, so that proper review is possible. This is seen when the Commission's opinion is analyzed and read in conjunction with its orders, particularly its order enjoining Goodyear from participating in sales-commission arrangements with any oil company.
49
Apparently the Commission's conclusion that the Atlantic-Goodyear sales-commission plan operates as an inherently unfair method of competition was based upon a determination that the Atlantic dealers were in an economically subservient position to Atlantic. This determination in turn was founded upon the facts that the Atlantic lease-franchise arrangements were only for short one-year terms enabling Atlantic to terminate them without cause at the end of any year and that it was the practice of many of the dealers to borrow money from Atlantic in order to stock their inventories. This subservient position of the dealers was held to put them in a position where 'Atlantic has sufficient economic power with respect to its wholesale and retail petroleum distributors to cause them to purchase substantial quantities of sponsored TBA even without the use of overt coercive tactics or of written or oral tying agreements, and this power is a fact existing independently of the particular method of distributing or sponsoring TBA used by Atlantic.' 58 F.T.C., at 364—365.
50
Though apparently deciding this case on the basis of Atlantic's economic power over its dealers, the Commission then enjoined Goodyear from continuing existing sales-commission arrangements or entering into new ones with any oil company. This was done without any analysis of the relationship which other oil companies may have with their dealers. The Commission determined only the following with respect to other oil companies: (1) the sales-commission contracts between Goodyear and the other oil companies are in all material respects identical to the Goodyear-Atlantic sales-commission contract and (2) one of the other 20 oil companies with which Goodyear has these sales-commission contracts has, in the past, practiced coercion on its dealers. 58 F.T.C., at 352—353. Moreover, in a related case, the Commission expressly held illegal a TBA sales-commission arrangement between Texaco Inc. and the B. F. Goodrich Company without analysis of the relationship between Texaco and its dealers. See Texaco, Inc. v. FTC, 118 U.S.App.D.C. 366, 336 F.2d 754 (C.A.D.C.Cir.). This case and another related case, The Firestone Tire & Rubber Company, 58 F.T.C. 371, resulted in both B. F. Goodrich and Firestone, as well as Goodyear, being enjoined from engaging in any sales-commission plan with any oil company.
51
Moreover, the Commission in this case relied upon the facts 'that Atlantic, which describes itself as '* * * a large producer and distributor of petroleum products' whose operating revenue 'totalled more than one half billion dollars' in 1954, distributes gasoline directly to more than 5,500 retail service stations and through wholesale distributors to more than 2,800 additional service stations in 17 states along the Atlantic Seaboard. Approximately 81 percent of Atlantic's total sales of gasoline in 1955 were accounted for by these approximately 8,300 retail service stations.' 58 F.T.C. at 364. These facts were stated to show that Atlantic's position in the petroleum retail market was sufficiently great so as to make its dealerships desirable and unique and that, therefore, Atlantic had power over its dealers sufficient to induce them to buy Atlantic-sponsored TBA. Yet, while relying on these facts about Atlantic, the Commission made no distinction between large or small companies in its order that precluded Goodyear from participating in any sales-commission plan. And, as discussed above, in related cases, B. F. Goodrich and Firestone as well have been enjoined from participating in any TBA sales-commission plan, regardless of the size of the oil company or its relation to its dealers.
52
An amicus brief filed on behalf of a small oil company asserts, however, that small oil companies need sales-commission TBA plans in order to compete effectively with the large companies. Since the Commission had only large companies before it in these cases, however, this contention has not adequately been explored. Despite this fact, the Commission has clearly precluded Goodyear, Firestone and B. F. Goodrich from entering into sales-commission arrangements with any oil company no matter how small the company and no matter what the competitive factors involved are. Moreover, the Commission's opinion here, while again not unambiguous on the point, indicates that it would be per se an unfair method of competition for any tire company to enter into a sales-commission TBA promotion arrangement with any oil company. Yet the whole basis for such a holding rests upon the limited economic facts of the Atlantic situation. This is not to say that the Commission could not conclude, after adequate factual determinations, that a general rule applicable to all companies is correct. It is to say that the Commission must have before it a sufficient record and must make the necessary findings supportive of a rule of broad application before a reviewing court can adequately perform its function.
53
Finally, the opinion and order of the Commission seem to draw a distinction between sales-commission and purchase-resale methods of oil company TBA promotion. These are alternative methods by which oil companies sponsor TBA purchasing by their dealers. In fact, prior to 1951, Atlantic distributed TBA through a purchase-resale plan. Atlantic-sponsored TBA was purchased by Atlantic from various manufacturers and distributed to the Atlantic dealers through warehouses owned by Atlantic. In some areas the warehouses were supplemented by Atlantic dealers who acted as supply point subdistributors to other dealers. In March 1951, Atlantic changed from the purchase-resale method to the sales-commission plan for the announced reason that the latter arrangement would produce a substantial saving in operating and capital costs, plus a substantial improvement in service to Atlantic dealers. Under the sales-commission plan, the tire company—rather than the oil company—performs the distribution function. The sponsored TBA is manufactured or purchased by the tire company and is distributed through warehouses owned by the tire company. Also, the tire company uses as supply points its own outlets (both company-owned and independent) as well as some oil company dealers, who are franchised by the tire company for this purpose. Under both purchase-resale and sales-commission plans, the oil company is primarily responsible for selling the TBA to its dealers and assisting them in selling it to their motorist customers. Under both plans the tire company salesman occasionally accompanies the oil company salesman to explain new TBA products, but the day-to-day promoting and selling are done by the oil company salesman.
54
In its order the Commission enjoined Atlantic from using any sales-commission TBA plan, but expressly excepted from the injunction the use by Atlantic of a purchase-resale TBA arrangement. This exception was mae over the objection of the Commission staff that both methods of TBA sponsorship should be condemned and enjoined. In answer to the argument that it is irrational to condemn sales-commission systems but not purchase-resale plans, the Commission did not even attempt to distinguish the two based on any difference concerning what it considered to be the essential core of the violation by Atlantic, 'the use (by the oil company) of economic power in one market (here, gasoline distribution) to destroy competition in another market (TBA distribution).' 58 F.T.C., at 367. Indeed, it would seem difficult to draw any distinction between the two plans on this basis. While the Commission did attempt to distinguish the two systems on other bases, this crucial aspect of the decision was handled in a short, summary fashion, without factual findings or analysis. Moreover, the Commission did not even discuss the argument that any distinction which permits purchase-resale but prohibits sales-commission plans discriminates against the smaller oil companies in favor of larger companies. It has been argued earnestly by an amicus that the capital investment required for a purchase-resale plan is so great that the smaller oil companies cannot afford it and presently only the very large Gulf and Esso companies use such a method. The record in this case is clear that Atlantic switched from purchase-resale to sales-commission TBA promotion since it found the capital costs of purchase-resale to be unduly onerous.
55
In his brief in this Court the Solicitor General, on behalf of the Commission, did not even argue that there was a rational distinction between purchase- resale and sales-commission TBA plans. Rather he argued that the Commission had not really approved the purchase-resale plan in failing to enjoin Atlantic's use of it. This argument fails to account for the language of the Commission opinion and the fact that the Commission rejected the staff recommendation, both of which to me are quite persuasive for the conclusion that the Commission has approved purchase-resale. Moreover, it ignores the fact that in the related Firestone case the Commission distinguished its earlier decision in General Motors Corp., 34 F.T.C. 58, which, while condemning and enjoining coercion, did not condemn General Motors' plan of inducing its dealers to buy General Motors automotive parts and accessories. A major ground used by the Commission in distinguishing the General Motors case from the TBA cases, was that the General Motors case involved a purchase-resale plan whereas the TBA cases before the Commission involve sales-commission arrangements. While it would therefore seem to me on the current state of the record that the Commission has approved purchase-resale TBA promotion by oil companies while condemning similar sales-commission promotions, at the very least, this is yet another ambiguity in the opinion.
56
In short, the Commission opinions in this and the related cases are bathed in confusion and leave unanswered a number of questions necessarily involved in the decision of these cases. Are TBA sales-commission plans only unfair methods of competition if the oil company has used coercive tactics on its dealers? If they are illegal without past or present evidence of coercion, are they illegal for oil companies which do not have the same relation with their dealers as Atlantic has with its dealers? Are they illegal for oil companies which do not have the same market position as Atlantic? Has the Commission drawn a distinction between sales-commission and purchase-resale TBA promotion plans, condemning the former but approving the latter? If it has, is there a rational basis, consistent with the policies of § 5, for such a distinction? All of these questions appear to me to be inadequately answered by the Commission's opinion.
57
I do not mean to imply what the answers to any of these questions should be. Congress has entrusted the initial and primary responsibility for answering them to the Commission. However, as this Court has recognized, 'We must know what a decision means before the duty becomes ours to say whether it is right or wrong.' United States v. Chicago, M., St. P. & P.R. Co., supra, 294 U.S. at 511, 55 S.Ct. at 467. 'The administrative process will best be vindicated by clarity in its exercise.' Phelps Dodge Corp. v. National Labor Relations Board, supra, 313 U.S. at 197, 61 S.Ct. at 853. When the Commission 'exercises the discretion given to it by Congress, it must 'disclose the basis of its order' and 'give clear indication that it has (properly) exercised the discretion with which Congress has empowered it." National Labor Relations Board v. Metropolitan Ins. Co., supra, 380 U.S. at 443, 85 S.Ct. at 1064. See Burlington Truck Lines v. United States, supra, 371 U.S. at 167—169, 83 S.Ct. 245, 246. Administrative agency action is not to be sustained where 'its explication is * * * inadequate, irrational or arbitrary * * *.' National Labor Relations Board v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1149, 10 L.Ed.2d 308.
58
Moreover, if in these and the related cases the Commission is laying down the broad rule that all sales-commission TBA promotion arrangements in the oil industry are per se unfair methods of competition, such a rule has neither been clearly articulated nor supported with adequate economic analysis. In White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738, this Court reversed a district court that had developed a per se rule of antitrust liability without regard to an analysis of the economics of the situation. The Court stated, '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.' 372 U.S., at 261, 83 S.Ct. at 701.
59
Similarly in this case, the Commission has not provided us with a factual record or analysis sufficient to reach the conclusion that sales-commission plans are per se illegal in the oil industry. In condemning such arrangements the Commission would be upsetting long-established practices prevalent in the oil industry. It would be affecting the entire oil industry, small companies as well as large, not just the particular parties involved in these cases. Finally, it must be remembered that the Commission is an expert administrative body set up by Congress in order to provide adequate economic fact finding and analyses of complicated problems such as the ones here presented. The integrity of this congressional scheme is violated by the Commission's entering and the courts' affirming broad industry-wide orders the meaning and bases of which are unclear and the factual and economic analysis of which is inadequate.
60
I do not mean by this that the Commission is required to use a rule-making rather than a case-by-case approach to decision-making in this area, although it would seem that rule-making would here be the preferable approach. Cf. Elman, Comment, Rulemaking Procedures in the FTC's Enforcement of the Merger Law, 78 Harv.L.Rev. 385 (1964). The Commission has the general power to choose to proceed in this field, as in others, through either rule-making or the process of case-by-case adjudication. See Securities & Exchange Comm'n v. Chenery Corp., supra, 332 U.S. at 201—202, 67 S.Ct. 1579, 1580, 91 L.Ed. 1995; California v. Lo-Vaca Gathering Co., 379 U.S. 366, 371, 85 S.Ct. 486, 489, 13 L.Ed.2d 357. Whichever method the Commission chooses to use, however, it seems obvious to me that the Commission must formulate a clear rational rule which is based on an adequate economic explication and takes into consideration, the situation of all industry members affected by the rule. Since its failure to do so precludes proper judicial review of these cases, I would vacate the judgments below and remand these cases to the Commission so that it can, with clarity, exercise the administrative process entrusted to the Commission by Congress.
1
Section 5 provides in pertinent part:
'(a) (1) Unfair methods of competition in commerce, and unfair * * * acts or practices in commerce, are declared unlawful.
'(6) The Commission is empowered and directed to prevent persons, partnerships, or corporations * * * from using unfair methods of competition in commerce and unfair * * * acts or practices in commerce.
'(b) Whenever the Commission shall have reason to believe that any such person, partnership, or corporation has been or is using any unfair method of competition or unfair * * * act or practice in commerce, and if it shall appear to the Commission that a proceeding by it in respect thereof would be to the interest of the public, it shall issue and serve upon such person, partnership, or corporation a complaint stating its charges in that respect and containing a notice of a hearing upon a day and at a place therein fixed at least thirty days after the service of said complaint. * * * If upon such hearing the Commission shall be of the opinion that the method of competition or the act or practice in question is prohibited by (this Act), it shall make a report in writing in which it shall state its findings as to the facts and shall issue and cause to be served on such person, partnership, or corporation an order requiring such person, partnership, or corporation to cease and desist from using such method of competition or such act or practice. * * * After the expiration of the time allowed for filing a petition for review, if no such petition has been duly filed within such time, the Commission may at any time, after notice and opportunity for hearing, reopen and alter, modify, or set aside, in whole or in part, any report or order made or issued by it under this section, whenever in the opinion of the Commission conditions of fact or of law have so changed as to require such action or if the public interest shall so require * * *.'
2
Atlantic was ordered to cease and desist from:
'1. Entering (into) or continuing in operation or effect any contract, agreement or combination, express or implied, with The Goodyear Tire & Rubber Company, or The Goodyear Tire & Rubber Company, Inc., or with any other rubber company or tire manufacturer, or any other supplier of tires, batteries, and/or accessories, whereby The Atlantic Refining Company receives anything of value in connection with the sale of TBA products to any wholesaler or retailer of Atlantic petroleum products by any marketer or distributor of TBA products other than The Atlantic Refining Company;
'2. Accepting or receiving anything of value from any manufacturer, distributor, wholesaler, or other vendor of TBA products, for acting as sales agent or for otherwise sponsoring, recommending, urging, inducing, or promoting the sale of TBA products, directly or indirectly, by any such vendor to any wholesaler or retailer of Atlantic petroleum products;
'3. Using or attempting to use any contractual or other device, such as, but not limited to, agreements, leases, training programs, promotions, dealer meetings, dealer discussions, service station identification, credit cards, and financial loans, to sponsor, recommend, urge, induce, or otherwise promote the sale of TBA products by any distributor or marketer of such products other than The Atlantic
Refining Company to or through any wholesaler or retailer of Atlantic petroleum products;
'4. Employing any method of inspecting, reporting, or surveillance or using or attempting to use, in any manner, its relationship with Atlantic outlets to sponsor, recommend, urge, induce, or otherwise promote the sale of any specified brand or brands of TBA products by any distributor or marketer of such products other than The Atlantic Refining Company to any wholesaler or retailer of Atlantic petroleum products;
'5. Intimidating or coercing or attempting to intimidate or coerce any wholesaler or retailer of Atlantic petroleum products to purchase any brand or brands of TBA products;
'6. Preventing or attempting to prevent any wholesaler or retailer of Atlantic (petroleum) products from purchasing and reselling, merchandising, or displaying TBA products of his own independent choice.' 58 F.T.C., at 369—370.
3
Goodyear was ordered to cease and desist from:
'1. Entering into or continuing in operation or effect any contract, agreement or combination, express or implied with The Atlantic Refining Company or with any other marketing oil company whereby Goodyear, directly or indirectly, pays or contributes anything of value to any such marketing oil company in connection with the sale of TBA products by Goodyear or any distributor of Goodyear products to any wholesaler or retailer of petroleum products of such marketing oil company;
'2. Paying, granting or allowing, or offering to pay, grant or allow, anything of value to The Atlantic Refining Company or to any (other) marketing oil company for acting as sales agent or for otherwise sponsoring, recommending, urging, inducing or promoting the sale of TBA products, directly or indirectly, by Goodyear or any distributor of Goodyear products to any wholesaler or retailer of petroleum products of such marketing oil company;
'3. Reporting or participating in the reporting to The Atlantic Refining Company or any other marketing oil company concerning sales of TBA products to wholesalers or retailers of petroleum products, individually or by groups, of any such marketing oil company.' 58 F.T.C., at 370—371.
4
In 1948 these States accounted for 36.7% of the gasoline sales in the United States. Atlantic's share of this market was 6.8%; its share of the national market was 2.5%. It had total operating revenues exceeding $500,000,000 in 1954.
5
Lessee dealers lease their stations from Atlantic, while contract dealers either own their own stations or lease them from some party other than Atlantic.
6
Prior to 1951 Atlantic distributed tires, batteries and accessories to its dealers through a purchase-resale plan, whereby it would purchase Lee tires, Exide batteries and various accessories directly from the manufacturers and resell them to its dealers and wholesalers.
Atlantic also entered into a sales-commission agreement with the Firestone Tire & Rubber Company in 1951. Firestone products were to be marketed in the Eastern Pennsylvania, Western Pennsylvania and Southern regions of Atlantic's sales territory, but Firestone is not a party to this action.
7
While Atlantic controlled the placement of advertising in the dealers' stations, Goodyear furnished and erected the displays. Atlantic permitted no sings or displays other than those of sponsored products.
*
58 F.T.C. 309, at 364—365.
| 89
|
381 U.S. 407
85 S.Ct. 1525
14 L.Ed.2d 477
William J. SCOTT et al.v.Joseph GERMANO et al.
No. 1152.
June 1, 1965.
Don H. Reuben, Howard J. Trienens and D. Lawrence Gunnels, for appellants.
Bernard Kleiman and Lester Asher, for Germano and others.
William G. Clark, Atty. Gen. of Illinois, and Richard A. Michael, Asst. Atty. Gen., for Kerner and others.
PER CURIAM.
1
Upon remand of this case, Germano v. Kerner, 378 U.S. 560, 84 S.Ct. 1908, 12 L.Ed.2d 1034 (1964), for further proceedings consistent with the views stated in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the District Court on January 22, 1965, entered a judgment declaring invalid Art. IV, § 6, of the Illinois Constitution, S.H.A. and Ill.Rev.Stat., c. 46, §§ 158—1 to 158—5 (1963), apportioning the Illinois Senate; directing that all members of the Illinois General Assembly be made parties defendant; and requiring that 'any implementation, amendment or substitution of all or part of the said defective portions' of the Illinois Constitution or legislation be submitted to it for approval before the holding of any election thereunder. It further held that if no such 'implementation, amendment or substitution' was submitted it would order the parties to show cause why all Illinois State Senators should not be elected from the State at large in the 1966 election and every four years thereafter.
2
In April 1964 the case of People ex rel. Engle v. Kerner was filed in the Circuit Court of Sangamon County, Illinois. It contested the composition of both houses of the General Assembly but was dismissed by the trial court. Upon appeal the Supreme Court of Illinois on February 4, 1965, held the composition of the Illinois Senate invalid; the court expressed confidence that the General Assembly would 'successfully perform its duty to enact a constitutionally valid plan during its current session' which expires July 1, 1965. However, the court retained jurisdiction of the case 'for the purpose of taking such affirmative action as may be necessary to insure that the 1966 election is pursuant to a constitutionally valid plan.' 32 Ill.2d 212, 225, 205 N.E.2d 33, 41.
3
On February 8, 1965, the appellants here moved that the United States District Court reconsider and vacate its order of January 22, 1965, and stay further proceedings in light of the Supreme Court of Illinois' opinion in Engle, supra. This the District Court refused to do. Direct appeal was perfected here, 28 U.S.C. § 1253 (1958 ed.), and the appellants have now moved to stay the judgment of the District Court.*
4
We believe that the District Court should have stayed its hand. The power of the judiciary of a State to require valid reapportionment or to formulate a valid redistricting plan has not only been recognized by this Court but appropriate action by the States in such cases has been specifically encouraged. State of Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 676, 84 S.Ct. 1429, 1440, 12 L.Ed.2d 595 (1964); City of Scranton v. Drew, 379 U.S. 40, 85 S.Ct. 207, 13 L.Ed.2d 107 (1964), citing Butcher v. Bloom, 415 Pa. 438, 203 A.2d 556 (1964); Jackman v. Bodine, 43 N.J. 453, 473, 205 A.2d 713, 724 (1964). See also Kidd v. McCanless, 200 Tenn. 273, 292 S.W.2d 40 (1956), asd discussion thereof in Baker v. Carr, 369 U.S. 186, 235—236, 82 S.Ct. 691, 719 720, 7 L.Ed.2d 663 (1962).
5
We therefore vacate the order of the District Court dated May 7, 1965. The case is remanded with directions that the District Court enter an order fixing a reasonable time within which the appropriate agencies of the State of Illinois, including its Supreme Court, may validly redistrict=the Illinois State Senate; provided that the same be accomplished within ample time to permit such plan to be utilized in the 1966 election of the members of the State Senate, in accordance with the provisions of the Illinois election laws. Ill.Rev.Stat., c. 46 (1963).
6
The District Court shall retain jurisdiction of the case and in the event a valid reapportionment plan for the State Senate is not timely adopted it may enter such orders an it deems appropriate, including an order for a valid reapportionment plan for the State Senate or an order directing that its members be elected at large pending a valid reapportionment by the State itself.
7
It is so ordered.
8
Mr. Justice HARLAN concurs in the result.
9
Mo. Justice GOLDBERG took no part in the consideration or decision of this case.
*
The motion to dispense with the printing of the jurisdictional statement is granted.
| 12
|
381 U.S. 420
85 S.Ct. 1571
14 L.Ed.2d 476
Walter R. HEARNE et al.v.Robert E. SMYLIE Governor of Idaho, et al.
No. 617.
Supreme Court of the United States
June 1, 1965
Herman J. McDevitt, for appellants.
Allan G. Shepard, Atty. Gen. of Idaho, and M. Allyn Dingel, Jr., Asst. Atty. Gen., for Williams and others, appellees.
PER CURIAM.
1
The appeal in this case concerns an order of the United States District Court for the District of Idaho staying this reapportionment suit until 30 days after the adjournment of the 1965 Session of the Idaho Legislature. The Idaho Legislature, after adopting a new reapportionment plan, adjourned on March 25, 1965. The stay order now having expired by its own terms and the District Court and the parties now being in a position to proceed promptly with this litigation, the motions to dismiss are granted and the appeal is dismissed.
| 12
|
381 U.S. 431
85 S.Ct. 1582
14 L.Ed.2d 480
Anthony J. TRAVIA et al.v.John C. LOMENZO et al.
No. 1218.
Supreme Court of the United States
June 1, 1965
Simon H. Rifkind and Edward N. Costikyan, for appellants.
Louis J. Lefkowitz, Atty. Gen. of New York, Daniel M. Cohen and and George D. Zuckerman, Asst. Attys. Gen., Donald Zimmerman, Special Asst. Atty. Gen., and Orrin G. Judd, for Lomenzo and others.
Leonard B. Sand and Max Gross, for WMCA, Inc., and others, appellees.
PER CURIAM.
1
The motion to accelerate the appeal is denied. The application for a stay, addressed to Mr. Justice Harlan as Circuit Justice and referred by him to the Court for consideration under Rule 50(6), is denied.
2
Mr. Justice HARLAN, dissenting.
3
An application has been made to me, as Circuit Justice, for a stay pending appeal from an order of a three-judge District Court, dated May 24, 1965, ordering New York to hold a special legislative election on November 2, 1965, under the electoral scheme embodied in reapportionment 'Plan A'1 passed by the New York Legislature, signed by the Governor, and held unconstitutional under the State Constitution by the New York Court of Appeals. The stay application was accompanied by a motion, addressed to the Court, asking for an acceleration and immediate hearing of the appeal, to which the relief sought from me is incident. Because the stay and acceleration questions were in my opinion inextricably related and involved issues of far-reaching importance, I referred the stay application to the full Court for determination (see Sup.Ct.Rule 50(6)) in conjunction with the motion to accelerate the appeal. The Court now denies both the stay and motion to accelerate, and I respectfully dissent.
4
'Plan A' was one of four alternative reapportionment plans passed by the New York Legislature under the impact of an order of the District Court, dated July 27, 1964, entered pursuant to this Court's decision in WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568, which held New York's then-existing method of legislative apportionment violative of the Fourteenth Amendment. The District Court order provided by way of interim relief that (1) the November 1964 legislative elections could proceed under the invalidated apportionment system, but the legislators would be permitted to serve for only a one-year period, instead of the two-year term provided in the State Constitution; (2) a special November 1965 election must be held under a constitutionally valid apportionment plan to be enacted by the New York Legislature and submitted to the District Court for approval not later than April 1, 1965 (later extended to May 5, 1965), the legislators so elected again to serve for only one year; and (3) the regularly scheduled November 1966 election, for a normal two-year term, would be held under the same or some other court-approved reapportionment plan. This Court summarily affirmed the District Court's order. Hughes v. WMCA, Inc., 379 U.S. 694, 85 S.Ct. 713, 13 L.Ed.2d 698. Two dissenting Justices would have set the case for plenary consideration, and two concurring Justices expressly noted that the Court's action did not foreclose the District Court from modifying its interim order in light of subsequent developments.
5
In December 1964 the 1964 Legislature, meeting in special session, passed and the Governor signed four alternative reapportionment plans, one of which, 'Plan A,' is involved in the matter now before us. On January 26, 1965, the three-judge District Court found that 'Plan A' satisfied federal constitutional requirements, but that each of the other plans did not. 238 F.Supp. 916. On April 14, 1965, the New York Court of Appeals held all four plans invalid under the State Constitution, in that each provided for an Assembly of more than 150 members, thus exceeding the membership limit prescribed by the New York Constitution, Art. 3, § 2. In re Orans, 15 N.Y.2d 339, 258 N.Y.S.2d 825, 206 N.E.2d 854.
6
Ignoring the New York Court of Appeals' holding that Plan A violated the State Constitution, a majority of the District Court, on May 18, 1965, ordered the November 1965 state legislative election to proceed under that plan. One judge dissented, considering that a more appropriate, though admittedly not wholly satisfactory, 'interim' solution would be to permit the November 1965 election to go forward under the old reapportionment formula, with the legislators thus elected being accorded 'weighted votes' in the legislature based on population.
7
On May 24, 1965, the State Legislature passed three bills, the substantial effects of which were (1) to adopt the dissenting district judge's weighted voting formula for the 1966 legislative session, without holding an election this fall;2 (2) to create a bi-partisan commission to devise a new reapportionment formula for the 1966 election, meeting both federal and state constitutional requirements;3 and (3) to issue a call for a constitutional convention to promulgate a permanent reapportionment plan to govern the 1968 and subsequent elections.4 The Speaker of the Assembly and the President pro tem of the State Senate (the intervenors-appellants here) thereupon sought leave to intervene in the District Court proceedings and to persuade the court to modify the interim relief in accordance with these legislative proposals. Their application for leave to intervene was granted, but the District Court refused to modify its earlier order. These applications for a stay and accelerated appeal followed immediately.
8
These matters bristle with difficult and important questions that touch the nerve centers of the sound operation of our federal and state judicial and political systems. They involve, among other things, the right of a federal court to order that one house of a state legislature shall temporarily be of greater size than is permitted by the State Constitution. Surely such questions are deserving of plenary consideration and reasoned explication. By denying a stay and refusing to accelerate this appeal, the Court, instead, has in effect decided them not only summarily but also sub silentio. For while the denial of a stay does not technically moot the appeal, it is manifest that such is the practical effect of the Court's action, since in normal course the appeal will not even be heard until after the presently ordered November election has taken place.
9
Without prejudging the question, the propriety of a federal court's ordering a state election to proceed under a plan which the highest court of the State has found to violate the State Constitution in respects not claimed to be violative of the Federal Constitution, when a number of alternatives are available, raises what I consider to be very serious federal questions which this Court should at least hear. All parties have shown themselves willing to argue the case promptly. I would set the case for immediate argument, and would have the Court render its decision on the stay promptly thereafter, with opinions on the merits of the controversy to follow in due course. Compare Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, 19.5
10
I am wholly at a loss to understand the Court's casual way of disposing of this matter and I can find no considerations of any kind which justify it. The Court should be willing to face up articulately to these difficult problems which have followed as a not unnatural aftermath of its reapportionment decisions of last Term.
1
New York Laws 1964, c. 976. At the same time the Legislature passed three successive amendments to c. 976: New York Laws 1964, cc. 977-978 (Plan 'B'), c. 979 (Plan 'C'), and c. 981 (Plan 'D'). These four acts have been referred to throughout the proceedings as Plans A, B, C and D.
2
New York Assembly Intro. 6051, Print. 7067, vetoed by the Governor on May 27, 1965.
3
New York Assembly Intro. 6050, Print. 7066, vetoed by the Governor on May 27, 1965.
4
New York Assembly Intro. 5695, Print. 5988.
5
The necessity for a prompt disposition is evidenced by the fact that the State's primary machinery must be set in motion today if an election next November is to take place.
| 12
|
381 U.S. 415
85 S.Ct. 1572
14 L.Ed.2d 689
Frank M. JORDAN, Secretary of State of California, et al.v.Phill SILVER.
No. 935.
Supreme Court of the United States
June 1, 1965
Thomas C. Lynch, Atty. Gen. of California, Charles E. Corker and Charles A. Barrett, Asst. Attys. Gen., Sanford N. Gruskin, Deputy Atty. Gen., and Herman F. Selvin, for appellants.
Phill Silver, appellee, pro se.
PER CURIAM.
1
The motion of the appellant the Senate of the Legislature of California to take judicial notice of official judicial records is denied. The motion to strike the motion to dismiss or affirm is also denied. The motion to affirm is granted and the judgment is affirmed.
2
Mr. Justice HARLAN, whom Mr. Justice CLARK and Mr. Justice STEWART join, concurring.
3
The California Constitution reserves to the people of the State of initiative power to propose constitutional amendments by filing a petition with the Secretary of State.1 If the petition is signed by 8% of the persons who voted in the preceding gubernational election, the proposed amendment will be submitted to the people at the next general election, and only a bare majority vote of the people is required in order to pass the amendment.
4
Prior to 1926 the California Constitution, Art. IV, § 6, provided that both houses of the legislature would be apportioned on the basis of population.2 In 1926 an initiative measure, known as Proposition 28, was submitted to the voters which deleted the requirement that the Senate be apportioned on a strict population basis, leaving the method of apportioning the Assembly unaffected.3 The statements accompanying the measure, which were distributed to all voters, described the proposition as an attempt to provide a federal-type plan for California, similar to the apportionment of the United States Congress, and summarized the arguments pro and con the proposal.4 Proposition 28 was approved by a popular vote of 437,003 to 363,208 in the November 1926 election, and the following year the legislature adopted apportionment statutes to effectuate the constitutional amendment. This legislation was submitted to the people as required by state law, and was approved by them in the 1928 election.5 The amendment provided that the Senate would be composed of 40 members, to be elected from senatorial districts; the districts would be based on population, but no county could contain more than one district, and no district could consist of more than three counties.6
5
Since the adoption of these changes, various initiative measures have been submitted to the voters on more than one occasion in an attempt to change this apportionment system for the Senate. In 1948 such a proposition was defeated by a vote of 2,250,937 to 1,069,899.7 In 1960 such a proposition was defeated by a vote of 3,408,090 to 1,876,185.8 And in 1962 another such proposition was defeated by a vote of 2,495,440 to 2,181,758.9
6
The Court today summarily affirms the decree of the District Court holding this senatorial apportionment, consistently approved by a majority of the people of California voting in general elections, to be invalid under the decisions of this Court in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, and companion cases. Were I able to detect in any of those cases the slightest basis for optimism that the Court might consider last Term's reapportionment pronouncements to leave room for the people of a State to choose for themselves the kind of legislative structure they wish to have—at least when the democratic processes employed are as straightforward and flexible as those of California—I would vote to 'Note' and hear this case. Finding, however, that the judgment of the District Court is squarely required by Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632,10 I reluctantly acquiesce in the Court's summary affirmance.11
1
Calif.Const. Art. IV, § 1.
2
'For the purpose of choosing members of the legislature, the state shall be divided into forty senatorial and eighty assembly districts, as nearly equal in population as may be, and composed of contiguous territory, to be called senatorial and assembly districts.' Calif.Const. of 1879, Art. IV, § 6, in Calif.Laws 1925, p. xi.
3
'For the purpose of choosing members of the legislature, the state shall be divided into forty senatorial and eighty assembly districts to be called senatorial and assembly districts. Such districts shall be composed of contiguous territory, and assembly districts shall be as nearly equal in population as may be. Each senatorial district shall choose one senator and each assembly district shall choose one member of assembly. * * * [I]n the formation of senatorial districts no county or city and county shall contain more than one senatorial district, and the counties of small population shall be grouped in districts of not to exceed three counties in any one senatorial district. * * *' Calif.Laws 1927, p. lxxxv.
Another measure, Proposition 20, was also submitted to the voters in the 1926 election, which would have preserved the apportionment of both houses on a strict population basis. This proposition was defeated by a vote of 492,923 to 319,456. Record 37.
4
'Argument in Favor of Legislative Reapportionment Initiative Measure.
"FEDERAL PLANS.'
'This proposed constitutional amendment will take the place of section 6, article 4, of the constitution of California, which now provides that the state shall be divided into forty senatorial districts and eighty assembly districts 'as nearly equal in population as may be, and composed of contiguous terreitory.'
'The growth of city population in California, and particularly the unprecedented development of the two great urban regions of the state, will have the effect, if representation is reapportioned according to present law, of consolidating political power in the inhabitants of 3 per cent of the area of the state to the prejudice of the representative
rights of the balance of the population who inhabit 97 per cent of the area of the state. The state legislature, foreseeing disadvantages to the general interests of the state, has repeatedly declined, since the publication of the last federal census, to reapportion representation on the basis of the existing law.
'The present amendment would alter the constitution so as to enable the legislature to find a solution to the difficulty that will protect the right of the great bulk of the state to fair representation.
'The plan is called the 'Federal Plan' because its provisions resemble those of the federal constitution with respect to representation in the United States congress. It rests upon a principle widely recognized in American government and other governments that representation in a public assembly is equitably apportioned not according to population alone but according to two factors—population and territory.
'The measure will preserve to rural California and the great agricultural producing areas which comprise it, the control of one house of the state legislature, namely: the senate. The measure makes no change in assembly districts. It does not increase the members of the legislature. It can not, in any way, add to state expense.
'Under this plan no county or city and county has more than one senator. The small counties are grouped, but are given at least one senator to each three counties. There are fity-eight counties in the state and forty senators. To illustrate the working of the plan, twenty-seven of these counties, might, by reason of superior population, each elect one senator; sixteen counties grouped in twos might elect eight; and fifteen counties grouped in threes might elect five. Every large homogeneous geographical area of the state is assured one representative in the senate.
'Twenty-nine states of the Union have based their legislative representation in some form upon this principle, and these states include, among others, New York, Pennsylvania, Massachusetts, Iowa, and Ohio. The principle was submitted to a popular election in Ohio in 1903, and was overwhelmingly adopted by 731,000 votes for it and only 26,479 votes against the principle. This amendment is sponsored by the California Farm Bureau Federation, the State Grange, the Farmers Union, and the Agricultural Legislative Committee. But it is also supported by chambers of commerce, women's clubs, and civic organizations generally throughout the state. It will
create a well-balanced legislature in which neither the cities nor the countryside may predominate. It is a just and wholesome provision. It will give the state a better legislature than is possible under present law, and will be a fair determination of a controversy disturbing to the best interests of California.
'Vote YES on this amendment.
'DAVID P. BARROWS.
'Argument Against Legislative Reapportionment Initiative Measure.
'The proposed amendment is unfair and impractical so far as it relates to senatorial districts.
'The provision that no county or city and county shall contain more than one senatorial district would limit Alameda, Los Angeles and San Francisco to one senator each. These three combined have 200,000 more than half of the population of the state, so the result would be that the majority would have only three senators, and the minority would be represented by thirty-seven senators. There is no good reason for the discrimination.
'The agricultural and commercial interests are so closely allied and interwoven that neither one as such should have the greater power in legislation. The only fair way is to base the representation on population, in accordance with the fundamental principles of our government that the majority shall rule.
'The amendment prescribes no method of determining how the senatorial districts shall be formed. It merely provides that counties of small population shall be grouped in districts of not more than three counties in one district. It is left to the legislature or reapportionment commission to determine arbitrarily and without restriction how it shall be done. Many of the counties of small population are contiguous, so it will follow that sparsely settled districts must be formed, and even the argicultural sections will not have equal representation in the senate as among themselves.
'The populous counties pay the greater share of taxes, and should have the controlling voice in the expenditure of the state's funds.
'If the citizens of these centers should vote for this amendment they would help to disfranchise themselves.
'Vote NO and preserve American principles.
'DANA R. WELLER.'
Record 54.
5
Record 37. The vote was 692,347 in favor, and 570,120 opposed.
6
Calif.Const. Art. IV, § 6. The present effect of this apportionment is that Los Angeles County, with a population of over 6,000,000, has one Senator and the three smallest counties, which together have a population of 14,294, also have one Senator. There is no claim made, however, that the Assembly is not apportioned solely on the basis of population.
7
Proposition 13 on the 1948 ballot. Record 37-38.
8
Proposition 15 on the 1960 ballot. Record 38.
9
Proposition 23 on the 1962 ballot. Record 78.
10
The gleam of a distinction between that case and this, which is suggested by what the Court said at p. 731 of its Lucas opinion, p. 1471 of 84 S.Ct., is wholly dissipated by what appears shortly thereafter at pp. 736-737, pp. 1473-1474 of 84 S.Ct.
11
This affirmance does not of course touch the propriety of any relief that the District Court may later grant, or the extent to which provisions of the California Constitution are still binding on the State Legislature in drafting apportionment legislation, see Forty-Fourth General Assembly of Colorado v. Lucas, 379 U.S. 693, 85 S.Ct. 715, 13 L.Ed.2d 699.
| 12
|
381 U.S. 392
85 S.Ct. 1517
14 L.Ed.2d 466
The UNITED GAS IMPROVEMENT COMPANY, Petitioner,v.CONTINENTAL OIL COMPANY et al. FEDERAL POWER COMMISSION, Petitioner, v. M. H. MARR et al.
Nos. 644, 693.
Argued April 28, 1965.
Decided June 1, 1965.
[Syllabus from pages 392-394 intentionally omitted]
Sol. Gen. Archibald Cox and William T. Coleman, Jr., Philadelphia, Pa., for petitioners.
David T. Searls, Houston, Tex., for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
In Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035, the Court held that Federal Power Commission jurisdiction under the Natural Gas Act, as amended, 52 Stat. 821, 15 U.S.C. § 717 et seq. (1964 ed.), extended to what are described colloquially and perhaps somewhat loosely as 'wellhead' sales of natural gas by producers to interstate pipeline companies for resale in interstate commerce. The issue in the present cases is whether sales to an interstate pipeline company of leases covering proven and substantially developed reserves of gas to be sold in interstate commerce are also subject to Commission jurisdiction. We hold that they are.
I.
2
In 1957, Texas Eastern, a natural gas company which owns and operates an interstate transmission system extending from Texas to the Philadelphia-Newark area, executed gas purchase contracts with Continental Oil Company, M. H. Marr, Sun Oil Company, and General Crude Oil Company, to purchase their natural gas production in Rayne Field, Louisiana, at an initial price of 23.9¢ per Mcf.1 The producers applied to the Commission for certificates of public convenience and necessity authorizing them to sell their gas to Texas Eastern. Texas Eastern applied for a certificate permitting it to build new pipeline facilities to connect its system to Rayne Field. After a hearing, and in spite of objections by several intervenors to the 23.9¢ price, the examiner issued a decision recommending a grant of the requested certificates. However, before the Commission acted on the examiner's decision, the Court of Appeals for the Third Circuit handed down its decision in Public Serv. Comm. of State of New York v. FPC, 257 F.2d 7172 (the 'Catco' case), reversing an order of the Commission granting unconditional certificates for sales of natural gas on the ground that the certificate applicants had the burden of showing that the proposed sale price of 22.4¢ was justified by public convenience and necessity, and that the burden had not been sustained. Thereafter the producers in the present case requested the Commission to permit withdrawal of their applications for sales to Texas Eastern at 23.9¢ (1.5¢ higher than the Catco price) and canceled the sales contracts. The parties then agreed on a different method for achieving their objectives.
3
Under the new plan formulated by the parties, Texas Eastern, instead of making conventional wellhead purchases of natural gas, proposed to buy the producers' leasehold interests in the Rayne Field lands in which the natural gas was located. The provisions of the lease-sale agreements were such that they were very close in economic effect to conventional sales of natural gas. The gas reserves in Rayne Field were proven, and the field substantially developed.3 Texas Eastern was still to build the connecting facilities to the field which had been called for under the original plan, and the same volumes of gas were to flow into its system. The lease-sales were to cover no minerals except natural gas and condensate, all other mineral rights being reserved to the lease-sellers, and by a management agreement Continental Oil, one of the sellers, was to continue to do the bulk of production work.4 Payments on the purchase price could be accelerated if gas production exceeded a specified amount, and the leases were purchased through an intermediate corporation so that Texas Eastern's liability would be substantially limited if production from the field fell below expectations.5 Completion of the transfers was conditioned upon issuance of the necessary certificates by the Commission.
4
The Commission granted Texas Eastern's request to reopen the proceedings in order to consider the lease-sale plan, and issued an unconditional certificate to Texas Eastern permitting it to build the pipeline facilities necessary to connect with Rayne Field. In issuing the certificate the Commission overruled objections made by the New York Public Service Commission that the prices paid for the leases were not justified, and noted that 'Texas Eastern has not filed an application for a certificate authorizing the acquisition of the Rayne Field leases and we have no authority to issue such a certificate.' 21 F.P.C. 860, 864.
5
Soon thereafter the lease-sale transactions were completed and Texas Eastern began to receive gas from Rayne Field for interstate distribution. However, on review of the Commission's action the Court of Appeals for the District of Columbia Circuit set aside the certificate order because the language and tenor of the Commission's opinion appeared to approve the prices paid for the leases under the acquisition agreement. Public Serv. Comm. of State of New York v. FPC, 109 U.S.App.D.C. 289, 287 F.2d 143. The court thought it of 'no importance here that the transactions by which Texas Eastern proposes to acquire the gas will themselves be, by virtue of a change in form, beyond the regulatory control of the Commission,' id., at 292, 287 F.2d, at 146, since the Commission could regulate Texas Eastern through its certification authority over the connecting facilities regardless of its jurisdiction over the lease-sale transactions themselves. The Court therefore remanded, stating that:
6
'Two courses are open to the Commission. It may, by clarification of the order presently under review, expressly disclaim any approval of the price to be paid for natural gas by the applicant. * * * Or it may reopen the record in the certificate proceeding to permit Texas Eastern to establish by adequate evidence that the acquisition costs which it proposes to incur will be consistent with the public convenience and necessity.' Ibid.
7
The Commission chose to reopen the proceedings. After hearings before an examiner, it decided that the question of its jurisdiction over the lease-sales themselves, as opposed to authority over Texas Eastern's connecting facilities, was not foreclosed either by previous Commission rulings or the mandate of the Court of Appeals for the District of Columbia Circuit. On the merits, it decided that a holding that it had no jurisdiction to inquire into production costs because the transaction was cast as a sale of leases instead of a sale of natural gas 'would exalt form over substance, would give greater weight to the technicalities of contract draftsmanship than to the achievement of the purposes of the Natural Gas Act, and would impair our ability to control the price received for gas sold to the pipelines in interstate commerce to the detriment of the ultimate consumer.' 29 F.P.C. 249, 256.
8
After asserting jurisdiction over the lease-sales, the Commission concluded that it would not be in the public interest to certificate them. Reasoning that the transaction was not subject to effective regulation because of the difficulty of estimating the unit price paid for the gas and the impossibility of providing continuing price regulation because of the one-shot nature of the sale, it ordered that the parties be given a six-month period in which to reframe the transaction so as to rectify these alleged infirmities.
9
Appeal was taken, not to the Court of Appeals for the District of Columbia Circuit, but to the Fifth Circuit pursuant to the alternative routes of appeal provided by § 19(b) of the Act.6 That court reversed. It interpreted this Court's decision in FPC v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 69 S.Ct. 1251, 93 L.Ed. 1499, as holding that leases such as those here involved 'relate to the production or gathering of natural gas and are thus outside Commission jurisdiction * * *.' 336 F.2d 320, 325. Under this view, it was unnecessary for the court to decide whether the earlier decision of the Court of Appeals for the District of Columbia Circuit had established 'the law of the case' on the jurisdictional question. We granted certiorari, 379 U.S. 958, 85 S.Ct. 664, 13 L.Ed.2d 554, because of the importance of the issue to the proper administration of the Natural Gas Act. It should be noted that no questions are before us relating to the propriety of the Commission's disposition of the case following its assertion of jurisdiction. It is only the jurisdictional question which we must answer. We reverse.
II.
10
Section 1(b) of the Natural Gas Act provides that '(t)he provisions of this Act shall apply * * * to the sale in interstate commerce of natural gas for resale * * * but shall not apply * * * to the production or gathering of natural gas.' 52 Stat. 821, 15 U.S.C. § 717(b) (1964 ed.).
11
Without impugning in any way the good faith and genuineness of the transactions, we think it clear that the lease-sales here in question can nonetheless be considered 'sales' of natural gas in interstate commerce for purposes of the Act. A regulatory statute such as the Natural Gas Act would be hamstrung if it were tied down to technical concepts of local law.7 The Court recognized as much in National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170, when it held that 'employee' as used in the National Labor Relations Act was to be defined by reference 'to the purpose of the Act and the facts involved in the economic relationship' (id., at 129, 64 S.Ct., at 860) rather than exclusively by reference to common law standards or local law. Gray v. Powell, 314 U.S. 402, 62 S.Ct. 326, 86 L.Ed. 301, decided under the Bituminous Coal Act of 1937, is also closely analogous to this phase of the cases at bar. The Act provided for establishment of minimum and maximum prices for soft coal, and specified that 'the sale or delivery or offer for sale of coal at a price below sum minimum or above such maximum shall constitute a violation of the code * * *.' 50 Stat. 80. A large coal consumer leased coal lands on which established mine facilities were located, and entered into management agreements with a contractor to whom the landowners had leased the mine facilities. It then claimed that the coal it had thus obtained was not subject to the Act because there had been no 'sale or delivery or offer for sale' by the producers, but only the sale of leases in the coal lands. The Court rejected this claim, stating that 'the purpose of Congress which was to stabilize the industry through price regulation, would be hampered by an interpretation that required a transfer of title, in the technical sense, to bring a producer's coal, consumed by another party, within the ambit of the coal code.' 314 U.S., at 416, 62 S.Ct., at 335.
12
The implications of the Hearst and Gray v. Powell approaches for the cases at hand are manifest. The sales of leases here involved were, in most respects, equivalent to conventional sales of natural gas which unquestionably would be subject to Commission jurisdiction under Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035. Indeed, the context of this case shows that when the first plan was aborted by the Catco case, the parties did not alter their objectives, but merely the method of attaining them. The Court of Appeals for the District of Columbia Circuit described the lease-sale plan as a 'change in form.' There are differences, to be sure, between the original sale agreements and the lease-sale plan. For example, texas Eastern has the power to make the major decisions controlling further development of the field, and we are told that the lease-sales will not trigger 'favored nation' clauses in other gas contracts. But it is perfectly clear that the sales of these leases in Rayne Field, a proven and substantially developed field, accomplished the transfer of large amounts of natural gas to an interstate pipeline company for resale in other States. That is the significant and determinative economic fact. To ignore it would substantially undercut Phillips, and because of it the Commission (unless foreclosed, infra, pp. 404—406) acted properly in treating these sales of leasehold interests as sales of natural gas within the meaning of the Natural Gas Act.
13
We turn then to the question whether these lease-sales, even though sales of natural gas within the meaning of the Act, are nonetheless outside Commission jurisdiction because of the exemption for 'production or gathering.'
14
The statement in Phillips that 'production and gathering, in the sense that those terms are used in § 1(b), end(ed) before the sales by Phillips occur(red)' (347 U.S., at 678, 74 S.Ct., at 797), could be read to turn the 'production or gathering' exemption purely on a matter of the timing of the title transfer. That would mean, of course, that the lease-sales here involved were within the production or gathering exemption, for at the time of the transfer the gas was still in the ground. The same would be true for any sale of gas in place. Acceptance of any such narrow interpretation would make Phillips a shadow. Its substance lies, instead, in the judgment that '(p) rotection of consumers against exploitation at the hands of natural-gas companies was the primary aim of the Natural Gas Act,' id., at 685, 74 S.Ct., at 801, and 'congressional intent (was) to give the Commission jurisdiction over the rates of all wholesales of natural gas in interstate commerce.' Id., at 682, 74 S.Ct., at 799. We have not limited Phillips to a matter of the timing of the transaction, see Cities Service Gas Co. v. State Corp. Comm. of Kansas, 355 U.S. 391, 78 S.Ct. 381, 2 L.Ed.2d 355, reversing, per curiam, 180 Kan. 454, 304 P.2d 528, and consider that it would be a mistake to do so.
15
We conclude that even though a sale of natural gas in interstate commerce occurs before production or gathering is ended, it is nonetheless subject to regulation. In the context of such a sale, as distinguished from the situation in FPC v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 69 S.Ct. 1251, 93 L.Ed. 1499, to be discussed hereafter, the 'production or gathering' exemption relates to the physical activities, processes and facilities of production or gathering, but not to sales of the kind affirmatively subjected to Commission jurisdiction. This accommodation of the two relevant clauses of § 1(b) gives content to the national objectives of the Natural Gas Act as expounded in Phillips, and to the Commission's jurisdiction to accomplish them, while in no way interfering with state regulatory power over the physical processes of production or gathering in furtherance of conservation or other legitimate state concerns.
16
Respondents argue that the Court's decision in FPC v. Panhandle Eastern Pipe Line Co., supra, precludes this result. In Panhandle an interstate pipeline company transferred undeveloped leases to a production company. The Government asserted that Commission jurisdiction should attach because the gas reserves covered by the leases had been included in the interstate company's rate base computation and because the lessening of its natural gas reserves might affect the pipeline company's ability to perform adequately the obligations for which it had been certificated. This Court disagreed, holding that the disposition of undeveloped leases was encompassed by the production or gathering exemption.
17
Two distinctions between Panhandle and the present case are apparent. First, the Pandhandle leases were undeveloped. The Rayne Field leaseholds were substantially developed.8 Natural gas would and did begin to flow into the Texas Eastern system immediately upon completion of its connection with the field. The substantiality of development is a relevant consideration, for the more that must be done before the gas begins its interstate journey, the less the transaction resembles the conventional wellhead sale of natural gas in interstate commerce which, as Phillips held, the Act has affirmatively placed within Commission jurisdiction. Second, Pahnandle did not involve a sale of natural gas for resale in interstate commerce, but a transfer by an interstate transmission company to a production company for sale of the gas in intrastate commerce. Hence, the Panhandle court did not have before it the present problem—whether the transfer to an interstate pipeline company for transmission and resale in interstate commerce of proven and substantially developed gas reserves is subject to Commission jurisdiction. This was largely the problem which the Court later faced in Phillips and resolved in favor of jurisdiction.
18
The language of Panhandle is unquestionably broad. But flat statements such as '(o)f course leases are an essential part of production,' 337 U.S., at 505, 69 S.Ct., at 1256, should not be taken to cover more than the particular kind of leases that were before the Court; it should not be considered as embracing each and every transfer that can be put in lease form. Concepts of stare decisis in statutory interpretation apply to the holdings with which the case-by-case method of decision surrounds a statute. To recognize no differences between the Panhandle transfers and those in issue here, and in the name of stare decisis to hold that Commission jurisdiction depends on the form rather than the substance of the transaction, would turn the case-by-case process against itself.
III.
19
Because we differ with the court below on the jurisdictional issue, it is necessary for us to reach the question which the Fifth Circuit did not decide—whether the mandate of the Court of Appeals for the District of Columbia Circuit or the prior ruling of the Commission established the law of the case.
20
The original Commission order granting Texas Eastern a certificate to construct its connecting facilities proceeded on the basis that the Commission lacked authority to certificate the leasehold transfers. That question was not put in issue before the Court of Appeals for the District of Columbia Circuit. The opinion assumed its correctness with the single statement, citing Panhandle, that 'the Commission has been held to lack jurisdiction over gas leases,' 109 U.S. App.D.C., at 291, 287 F.2d, at 145, and concluded that '(t)he relevance of Texas Eastern's acquisition costs to these matters is unaffected by the form of the transaction; the Commission's warrant to inquire arises by virtue of its responsibility to regulate the purchaser, regardless of the status of the seller.' Id., at 292, 287 F.2d, at 146. On remand, the Commission stated that in its previous decision it had 'merely noted without discussion that we had no authority to issue a certificate for the acquisition of the leases * * *. It is apparent the issue was hardly considered in the earlier phase of this proceeding.' 29 F.P.C. 249, 253. In exercising the warrant to inquire, the Commission became aware of the difficulties of inquiring into the reasonableness of the acquisition prices without having jurisdiction over the transfers, and as a result, reconsidered the jurisdictional question.
21
We do not think that either the prior Commission decision or the initial opinion on review foreclosed that possibility. It is extremely doubtful that certiorari would have been appropriate from the decision which the Court of Appeals for the District of Columbia Circuit allegedly made on the jurisdictional question, with the result that review by this Court would be precluded on this basic question of Commission jurisdiction. Furthermore, in light of the fact that this case followed two different routes of appeal,9 thus eliminating the possibility that the initial reviewing court would clarify the extent of its mandate, compare Colgate-Palmolive Co. v. FTC, 1 Cir., 326 F.2d 517, it is appropriate to resolve doubts about the construction of the initial mandate in the Commission's favor.
22
We believe that the Commission's decision to reconsider the jurisdictional issue was consistent with a decision to inquire into the acquisition costs. 'On review the court may thus correct errors of law and on remand the Commission is bound to act upon the correction. * * * But an administrative determination in which is imbedded a legal question open to judicial review does not impliedly foreclose the administrative agency, after its error has been corrected, from enforcing the legislative policy committed to its charge.' Federal Communications Comm. v. Pottsville Broadcasting Co., 309 U.S. 134, 145, 60 S.Ct. 437, 442, 84 L.Ed. 656.
23
Reversed.
24
Mr. Justice DOUGLAS, dissenting.
25
While I dissented in Federal Power Comm. v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 69 S.Ct. 1251, 93 L.Ed. 1499, it is not conceivable to me that the majority that made up the Court in that case would adhere to what is done today. That would be irrelevant if we dealt with a constitutional matter, as issues of that magnitude are always open for re-examination. But since we deal with the vagaries of a statute with no constitutional overtones, I think the matter should be left where Panhandle Eastern Peipe Line left it, saving for the Congress, of course, the power to expand the regime of the federal bureaucracy if it desires. It is sometimes customary for a court to distinguish precedents to the vanishing point, creating an illusion of certainty in the law while leaving only a shadow of an ancient landmark. That is within the judicial competence and has been done before. But where the issue has been so hotly contested as it was in Panhandle Eastern Pipe Line and when the Court has been so explicit in bringing traffic in gas leases under the 'production or gathering of natural gas' which Congress left to the States, I would adhere to that result until Congress changes it.
1
The price included 1.3¢ per Mcf. for reimbursement of state taxes.
2
Affirmed sub nom. Atlantic Refining Co. v. Public Serv. Comm. of State of New York, 360 U.S. 378, 79 S.Ct. 1246, 3 L.Ed.2d 1312.
3
Nineteen wells were in the ground; respondents state that seven more were to be drilled.
4
Texas Eastern had the right to make major production decisions such as what volume of gas to nominate for production each month and whether new wells should be drilled.
5
The Commission found:
'(1) Only gas in particular strata is conveyed; and the producers retain their interest in oil and other minerals;
'(2) In effect the transaction is for the sale of stripped gas inasmuch as the producers are to receive a production payment from Texas Eastern from the sale of natural gas liquids;
'(3) While the payment for the leases is represented by notes and spread over a 16-year period, the notes have an acceleration clause by which payment is accelerated if production is increased, so that Texas Eastern's payments would be geared to production;
'(4) By a management agreement dated July 27, 1959, Continental agrees to operate the field, including drilling wells and managing all wells and equipment, and to deliver to Texas Eastern specified minimum daily quantities of gas; Texas Eastern will reimburse Continental for its expenses in operating the field but the assignment of the leases shows that the costs of operating the leases will be defrayed out of the production payments to which Continental is entitled;
'(5) It is Louisiana Gas (the intermediary corporation), not Texas Eastern which is liable on the notes to the producers, so that the true purchaser of the gas is not bound by the principal obligation of the lease sale transaction.' 29 F.P.C. 249, 254.
6
52 Stat. 831, 15 U.S.C. § 717r(b) (1964 ed.). It provides:
'Any party to a proceeding under this Act aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the court of appeals of the United States for any circuit wherein the natural-gas company to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia * * *.'
7
Respondents point to Louisiana law which does not recognize a sale of gas in place. Frost-Johnson Lumber Co. v. Salling's Heirs, 150 La. 756, 91 So. 207; LSA—Rev.Stat. Tit. 9, § 1105 (1962 Cum.Supp.); LSA—Code of Civ.Proc., Art. 3664. Other producing States, including Texas and Kansas, do recognize ownership of gas in place. 1 Williams and Meyers, Oil and Gas Law, pp. 26—47 (1962 ed., and 1963 Cum.Supp.).
8
See n. 3, supra.
9
See n. 6, supra.
| 89
|
381 U.S. 421
85 S.Ct. 1576
14 L.Ed.2d 693
Dale H. DREWS et al.v.MARYLAND.
No. 1010.
Supreme Court of the United States
June 1, 1965
Francis D. Murnaghan, Jr., for appellants.
Thomas B. Finan, Atty. Gen. of Maryland, and Robert C. Murphy, Deputy Atty. Gen., for appellee.
PER CURIAM.
1
The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied.
2
Mr. Chief Justice WARREN, with whom Mr. Justice DOUGLAS joins, dissenting from the denial of certiorari.1
3
On Sunday, Lacey, who are Negroes, and Helen W. Brown, Dale H. Drews and Joseph C. Sheeham, who are white, went to Gwynn Oak Park, an amusement park in Baltimore County, Maryland. Ironically, the park was celebrating 'All Nations Day.' Shortly after 3 p. m. they were standing in a group by themselves and had, a park guard testified, attracted no attention from other patrons. The guard approached the group and told them that 'we are very sorry but the park was closed to colored, and that the colored people would have to leave the premises. * * *' Mr. Lacey answered that he was enjoying himself and would like to took around some more, and neither he nor Miss Joyner complied with the request to leave. The guard then asked all five to leave, but they refused. He testified, however, that they 'were all very polite.' During this interchange between the guard and petitioners, other patrons of the park began to gather around.
4
Upon the refusal of petitioners to leave, the guard summoned the Baltimore County police, who, after asking petitioners to leave, placed them under arrest. Meanwhile, the crowd surrounding the petitioners grew larger and more hostile, even going so far as to kick, spit, and yell 'Lynch them!' Neither the park officials nor the county police made any attempt to exclude from the park or arrest any of those who engaged in such conduct. Upon being informed of their arrest, the five joined arms briefly, and the three men then dropped to the ground and assumed a prostrate position. Petitioners Joyner and Brown remained on their feet. The police placed handcuffs on Miss Joyner, and escorted her and Miss Brown from the park. Though the police encountered some difficulty in pulling the women through the crowed, they left under their own power. The men, on the other hand, had to be carried out, but offered no active resistance. The only remark by any of the petitioners was made by one of the men, who, responding to mistreatment by someone in the crowd, said '* * * forgive him, he doesn't know what he is doing. * * *'
5
On April 5, 1960, petitioners Brown, Joyner, Drews and Sheeham were charged with 'acting in a disorderly manner, to the disturbance of the public peace, at, in or on Gwynn Oak Amusement Park, Inc., a body corporate, a place of public resort and amusement in Baltimore County' in violation of Md. Code Ann. Art. 27, § 123 (1957 ed.).2 Mr. Lacey was not prosecuted. Petitioners waived jury trial, were found guilty by the court, and each was fined $25 plus costs.3 On January 18, 1961, the Maryland Court of Appeals, defining disorderly conduct as 'the doing or saying, or both, of that which offends, disturbs, incites, or tends to incite, a number of people gathered in the same area,'4 affirmed the convictions. 224 Md. 186, 192, 167 A.2d 341, 343-344. On June 22, 1964, this Court vacated the judgments and remanded the case to the Court of Appeals for consideration in light of Griffin v. State of Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754, and Bell v. State of Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822. 378 U.S. 547, 84 S.Ct. 1900, 12 L.Ed.2d 1032. On remand, the Court of Appeals, purporting to distinguish Griffin and Bell, reinstated and reaffirmed the prior judgments of conviction, Judge Oppenheimer dissenting. 236 Md. 349, 204 A.2d 64.
6
I cannot concur in the Court's refusal to review this case. (1) There is in my mind serious question as to whether the conduct of petitioners can constitutionally be punished under a disorderly conduct statute. (2) It seems to me apparent from the record that petitioners' conduct is protected under the Civil Rights Act of 1964, 78 Stat. 241, and that, under our decision in Hamm v. City of Rock Hill and Lupper v. State of Arkansas, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300, the passage of the Act must be deemed to have abated the convictions.
I.
7
In Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, the only evidence supporting the petitioner's disorderly conduct conviction was to the effect that, after being arrested on another charge, he was 'very argumentative' with the arresting officers. We set aside the conviction on the ground that it was 'so totally devoid of evidentiary support as to render them unconstitutional under the Due Process Clause of the Fourteenth Amendment.' Ibid. Thompson was followed in Garner v. State of Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207, where the evidence showed that the petitioners, who were Negroes, had taken seats at a lunch counter where only white people were served, and had refused to leave upon request. For this they were convicted of disturbing the peace. For purposes of our decision, we gave the statute under which the petitioners were convicted its broadest possible readings, and assumed that it outlawed even peaceful and orderly conduct which foreseeably might cause a public commotion, id., at 169, 82 S.Ct., at 254. Nonetheless, we found the petitioners' conduct constitutionally insufficient to support the conviction.5 And in Barr v. City of Columbia, 378 U.S. 146, 84 S.Ct. 1734, 12 L.Ed.2d 766, we reversed a breach of the peace conviction based on conduct similar to that involved in Garner. In doing so, we observed that
8
'because of the frequent occasions on which we have reversed under the Fourteenth Amendment convictions of peaceful individuals who were convicted of breach of the peace because of the acts of hostile onlookers, we are reluctant to assume that the breach-of-peace statute covers petitioners' conduct here. * * * Since there was no evidence to support the breach-of-peace convictions, they should not stand.' Id., at 150-151, 84 S.Ct., at 1737.
9
I do not find this case meaningfully distinguishable from Garner and Barr. Clearly, nothing petitioners did prior to being placed under arrest could be called disorderly conduct: their only 'sins' up to that point were being Negro or being in the company of Negroes, and politely refusing to leave the park. Nonetheless, they were arrested. Then all five members of the group briefly linked arms, and, in a further show of passive resistance, the three men dropped to the ground. They did not, the police officers testified, offer anything in the way of active resistance to either arrest or ejection. As Judge Oppenheimer observed: 'In resisting the command of the officers to leave the park, the defendants used no force against the officers or anyone else; they held back or fell to the ground.' 236 Md., at 355, 204 A.2d, at 68. Nor did they argue with the police, cf. Thompson v. City of Louisville, supra, or use profanity, cf. Sharpe v. State, 231 Md. 401, 190 A.2d 628, cert. denied, 375 U.S. 946, 84 S.Ct. 350, 11 L.Ed.2d 275; indeed, the only words spoken were in the nature of a plea for forgiveness of one of the mob. All they did was refuse to assist in their own ejection from a segregated amusement park.
10
The two women did not even lie down. The only bit of testimony from which the trial judge could possibly have inferred disorderly behavior is the following:
11
'Q. Now, Officer, do you always place handcuffs on persons whom you have arrested? 'A. When I have a little trouble getting them through the Park or any—when I have a little trouble with them, yes.
12
'Q. What trouble did you have with Juretha Joyner?
13
'A. By refusing to leave.
14
'Q. Did you place handcuffs on any of the other Defendants?
15
'A. No, I don't recall.
16
'Q. Did you or did you not?
17
'A. No, sir.
18
'Q. Now, did the two female Defendants leave the Park, did they leave under their own power?
19
'A. I had to pull them through the crowd.
20
'Q. They walked out?
21
'A. They walked out, but I had to pull them through.
22
'The Court: Why did you have to pull them through?
23
'A. Because they didn't want to leave voluntarily.
24
'Q. They came when you pulled?
25
'A. They did, yes, sir.'
26
There is undoubtedly some truth to the officer's surmise; I am sure neither woman liked being ejected from the park solely because of her race or the race of her friend. I suspect that their reluctance also resulted in no small measure from a fear of being pulled through a shouting, spitting, kicking mob.
27
Even if it be assumed that the arrest of petitioners was lawful,6 I have great difficulty distinguishing the conduct of the women, and, to a lesser extent, that of the men, from the refusals to leave segregated establishments which were before us in Garner and Barr. I cannot see how a statute outlawing 'drunkenness and disorderly conduct'7 can be said to have given petitioners fair warning, cf. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894, that the conduct (or, in the case of the women, lack of conduct) in which they engaged was criminally punishable.8 I cannot, at least not without argument and full consideration by the Court, join in letting stand a decision which holds that police can arrest persons who are doing nothing remotely disorderly, secure in the knowledge that if the persons refuse wholeheartedly to cooperate in their own arrest and removal to a waiting squad car, their conviction for disorderly conduct will be forthcoming.9
II.
28
In Hamm v. City of Rock Hill and Lupper v. State of Arkansas, 379 U.S. 306, 308, 85 S.Ct. 384, 388, we held:
29
'The Civil Rights Act of 1964 forbids discrimination in places of public accommodation and removes peaceful attempts to be served on an equal basis from the category of punishable activities. Although the conduct in the present cases occurred prior to enactment of the Act, the still-pending convictions are abated by its passage.'
30
The convictions in this case did not become final until today. That the amusement park is an establishment covered by § 201 of the Civil Rights Act, 78 Stat. 241, 243, seems clear.10 I take it, therefore, that the Court does not regard petitioners' conduct as a 'peaceful attempt to be served on an equal basis.' I cannot agree. Surely the attempt to be served was completely orderly, and, as I indicated above, I think petitioners' postarrest conduct amounted to no more than a natural and fully understandable reaction to their arbitrary exclusion from the park.
31
In two recent decisions, we have, rightly in my opinion, recognized that people denied service because of their race are likely to react with less than wholehearted cooperation. Today, I fear, the Court forgets that elemental principle of human conduct, and demands, on pain of criminal penalty, the patience of Job. In Blow v. North Carolina, 379 U.S. 684, 85 S.Ct. 635, 13 L.Ed.2d 603, the evidence adduced at trial showed that the petitioners, two Negroes, were refused service in a restaurant, whereupon one proceeded to sit down on the floor mat outside the door, and the other stood near the door. They were convicted under a statute making it a crime to enter upon the lands of another without a license after being forbidden to do so. We held that the Civil Rights Act abated their convictions. In McKinnie v. State of Tennessee, 380 U.S. 449, 85 S.Ct. 1101, the petitioners, eight Negroes, entered the vestibule of a restaurant, were refused entrance into the restaurant proper, whereupon they remained in the vestibule, which measured 6' x 6'4", for approximately 20 minutes. There was testimony that the petitioners had engaged in some pushing and shoving, but the evidence was unclear as to whether the pushing was initiated by the Negroes or was attributable to white people who, during the 20 minutes, entered the restaurant through the vestibule. Again, we held that the convictions (for conspiracy to injure trade or commerce) had been abated by the passage of the Civil Rights Act. In each case we concluded that the conduct of the petitioners constituted no more than a peaceful refusal to acquiesce in a denial of their federal rights. I think we should draw the same conclusion here.
32
In dissenting, I of course do not suggest that a civil rights demonstrator, or anybody else, has a right to block traffic, or bar access to a man's home or place of business. I fully concur in the Court's observation in Cox v. State of Louisiana, 379 U.S. 536, 554-555, 85 S.Ct. 453, 464:
33
'The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental authorities have the duty and responsibility to keep their streets open and available for movement. A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations.'
34
But such examples are a far cry from what happened here. Juretha Joyner, a Negro, went with some friends to celebrate 'All Nations Day' at Gwynn Oak Park. Despite the facts that she behaved with complete order and dignity, and that her right to be at the park is protected by federal law, she was asked to leave, solely because of her race. She refused and, upon being handcuffed, displayed some reluctance (though no active resistance) to being pulled through an actively hostile mob. For this she was convicted of 'acting in a disorderly manner, to the disturbance of the public peace.' Today the Court declines to review her conviction, and the convictions of her three companions. I cannot join.
1
I agree with appellee that this is not a proper appeal. However, in 28 U.S.C. § 2103 (1958 ed., Supp. V), Congress has provided, in pertinent part:
'If an appeal to the Supreme Court is improvidently taken from the decision of the highest court of a State, or of a United States court of appeals, in a case where the proper mode of a review is by petition for certiorari, this alone shall not be ground for dismissal; but the papers whereon the appeal was taken shall be regarded and acted on as a petition for writ of certiorari and as if duly presented to the Supreme Court at the time the appeal was taken.'
2
Section 123 provides, in pertinent part:
'Drunkenness and disorderly conduct generally; habitual offenders.
'Every person who shall be found drunk, or acting in a disorderly manner to the disturbance of the public peace [in any of a number of specified locations, including places of public resort or amusement], shall be deemed guilty of a misdemeanor; and, upon conviction thereof, shall be subject to a fine of not more than fifty dollars, or be confined in jail for a period of not more than sixty days or be both fined and imprisoned in the discretion of the court. * * *'
3
This Court has never (and I hope it never does) let the fact that the criminal penalty is relatively small stand in the way of reviewing a case presenting important constitutional questions. E. g., Thompson v. City of Louisville, 362 U.S. 199, 203-204, 80 S.Ct. 624, 627-628 ($10 fine); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 ($10 fine).
4
Compare Cox v. State of Louisiana, 379 U.S. 536, 51-552, 85 S.Ct. 453, 462-463, 13 L.Ed.2d 471.
5
In Garner the Court noted that the record did not support the allegation that the trial judge had taken judicial notice of the fact that the petitioners' presence in a segregated establishment was likely to cause a disturbance. 368 U.S., at 173, 82 S.Ct., at 256. Neither the trial transcript in the instant case nor the trial judge's memorandum opinion indicates that he took that sort of notice here.
6
It is far from clear that the arrest was lawful. In view of the fact that § 24-13 of the Baltimore County Code (1958) authorizes the appointment of special police officers 'for the proper protection of persons and property in the county,' it may well be that the guard who asked petitioners to leave the park enjoyed the same status as the officer involved in Griffin v. State of Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754.
When this case was here the first time, we remanded it for consideration in light of Griffin. However, only Judge Oppenheimer, dissenting, drew from our remand the meaning that, until today, I too had thought it was supposed to carry, and voted to remand the case to the trial court for an investigation of the relation between the guard and the county:
'If Wood, the 'special officer' in this case, had virtually the same authority from Baltimore County that Collins [the guard involved in Griffin] had from Montgomery County * * * then under Griffin v. Maryland, supra, the State was a joint participant in the discriminatory action.
'* * * * *
'The Baltimore County Code authorizes the county to appoint special police officers to serve for private persons or corporations. Baltimore County Code, Sections 24-13 and 35-3 (1958). I would remand this case to the Circuit Court for Baltimore County for the taking of additional testimony to determine whether or not Wood was appointed by Baltimore County under these sections of its Code. If he was, the convictions should be reversed.' 236 Md., at 355; 204 A.2d, at 68 (Oppenheimer, J., dissenting).
Thus we still do not know whether the guard's action constituted state action, thereby rendering his command to leave the park unconstitutional. Yet it is axiomatic that 'one cannot be punished for failing to obey the command of an officer if that command is itself violative of the Constitution.' Wright v. State of Georgia, 373 U.S. 284, 291-292, 83 S.Ct. 1240, 1245, 10 L.Ed.2d 349. Moreover, a strong argument can be made that, under Maryland law, resisting an unlawful arrest does not constitute disorderly conduct. See Sharpe v. State, 231 Md. 401, 403, 404, 190 A.2d 628, 630, cert. denied, 375 U.S. 946, 84 S.Ct. 350, 11 L.Ed.2d 275.
7
With the conduct of petitioners herein, compare that of the defendants in Sharpe v. State, supra, note 6, and In re Cromwell, 232 Md. 409, 194 A.2d 88. Also, compare Niemotko v. State, 194 Md. 247, 250, 71 A.2d 9, 10, with Niemotko v. State of Maryland, 340 U.S. 268, 271, 71 S.Ct. 325, 327, 328, 95 L.Ed. 267, 280.
8
Whether or not petitioners' conduct would support a conviction for something other than disturbing the peace I do not know. Nor do I inquire, for '[c]onviction upon a charge not made would be sheer denial of due process.' De Jonge v. State of Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed. 278. See also Garner v. State of Louisiana, 368 U.S. 157, 164, 82 S.Ct. 248, 251-252; Thompson v. City of Louisville, 362 U.S. 199, 206, 80 S.Ct. 624, 629; Cole v. State of Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644.
9
It seems to me that the persons who were in fact guilty of disorderly conduct were the members of the crowd; however, none of them was prosecuted.
10
There is a restaurant at Gwynn Oak Park; indeed, petitioners were standing next to it when they were arrested. If a substantial portion of the food served in that restaurant has moved in interstate commerce, the entire amusement park is a place of public accommodation under the Act. §§ 201(b)(2), 201(b)(4), 201(c). See also § 201(b)(3). If the Court were unwilling to assume that the restaurant serves a substantial portion of such food, the proper course would be to remand the case for a hearing on the issue. Since the Court denies certiorari, I assume that it is for some other reason that it regards petitioners' conduct as not protected by the Act. I further assume that the fact that three of the petitioners are white is not the decisive factor, cf. Walker v. Georgia, 381 U.S. 355, 85 S.Ct. 1557, since certiorari is denied as to the Negro petitioner too.
| 12
|
381 U.S. 761
85 S.Ct. 1797
14 L.Ed.2d 713
ASSOCIATED FOOD RETAILERS OF GREATER CHICAGO, INC., et al.v.JEWELL TEA CO., Inc.
No. 321.
Supreme Court of the United States
June 7, 1965
Eugene Kart, for petitioners.
George B. Christensen, Fred H. Daugherty, Theodore A. Groenke and Samuel Weisbard, for respondent.
Solicitor General Cox, for the United States, as amicus curiae.
On Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit.
PER CURIAM.
1
The petition for writ of certiorari is granted and the judgment below is reversed. Local Union No. 189, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO v. Jewel Tea Co., 381 U.S. 676, 85 S.Ct. 1596.
2
Mr. Justice HARLAN, Mr. Justice STEWART and Mr. Justice GOLDBERG concur in the judgment of the Court for the reasons stated in Mr. Justice GOLDBERG's opinion in United Mine Workers of America v. Pennington and Local Union No. 189, etc. v. Jewel Tea Co., 381 U.S. 697, 85 S.Ct. 1607.
3
Mr. Justice BLACK, Mr. Justice DOUGLAS and Mr. Justice CLARK dissent.
| 67
|
381 U.S. 479
85 S.Ct. 1678
14 L.Ed.2d 510
Estelle T. GRISWOLD et al. Appellants,v.STATE OF CONNECTICUT.
No. 496.
Argued March 29, 1965.
Decided June 7, 1965.
Thomas I. Emerson, New Haven, Conn., for appellants.
Joseph B. Clark, New Haven, Conn., for appellee.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Appellant Griswold is Executive Director of the Planned Parenthood League of Connecticut. Appellant Buxton is a licensed physician and a professor at the Yale Medical School who served as Medical Director for the League at its Center in New Haven—a center open and operating from November 1 to November 10, 1961, when appellants were arrested.
2
They gave information, instruction, and medical advice to married persons as to the means of preventing conception. They examined the wife and prescribed the best contraceptive device or material for her use. Fees were usually charged, although some couples were serviced free.
3
The statutes whose constitutionality is involved in this appeal are §§ 53—32 and 54—196 of the General Statutes of Connecticut (1958 rev.). The former provides:
4
'Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.'
Section 54—196 provides:
5
'Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.'
6
The appellants were found guilty as accessories and fined $100 each, against the claim that the accessory statute as so applied violated the Fourteenth Amendment. The Appellate Division of the Circuit Court affirmed. The Supreme Court of Errors affirmed that judgment. 151 Conn. 544, 200 A.2d 479. We noted probable jurisdiction. 379 U.S. 926, 85 S.Ct. 328, 13 L.Ed.2d 339.
7
We think that appellants have standing to raise the constitutional rights of the married people with whom they had a professional relationship. Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603, is different, for there the plaintiff seeking to represent others asked for a declaratory judgment. In that situation we thought that the requirements of standing should be strict, lest the standards of 'case or controversy' in Article III of the Constitution become blurred. Here those doubts are removed by reason of a criminal conviction for serving married couples in violation of an aiding-and-abetting statute. Certainly the accessory should have standing to assert that the offense which he is charged with assisting is not, or cannot constitutionally be a crime.
8
This case is more akin to Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, where an employee was permitted to assert the rights of his employer; to Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, where the owners of private schools were entitled to assert the rights of potential pupils and their parents; and to Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586, where a white defendant, party to a racially restrictive covenant, who was being sued for damages by the covenantors because she had conveyed her property to Negroes, was allowed to raise the issue that enforcement of the covenant violated the rights of prospective Negro purchasers to equal protection, although no Negro was a party to the suit. And see Meyer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042; Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517; NAACP v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405. The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those rights are considered in a suit involving those who have this kind of confidential relation to them.
9
Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment. Overtones of some arguments suggest that Lochner v. State of New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937, should be our guide. But we decline that invitation as we did in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703; Olsen v. State of Nebraska, 313 U.S. 236, 61 S.Ct. 862, 85 L.Ed. 1305; Lincoln Federal Labor Union v. Northwestern Co., 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212; Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563; Giboney v. Empire Storage Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834. We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation.
10
The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice—whether public or private or parochial—is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.
11
By Pierce v. Society of Sisters, supra, the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. State of Nebraska, supra, the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313) and freedom of inquiry, freedom of thought, and freedom to teach (see Wieman v. Updegraff, 344 U.S. 183, 195, 73 S.Ct. 215, 220, 97 L.Ed. 216) indeed the freedom of the entire university community. Sweezy v. State of New Hampshire, 354 U.S. 234, 249—250, 261—263, 77 S.Ct. 1203, 1211, 1217—1218, 1 L.Ed.2d 1311; Barenblatt v. United States, 360 U.S. 109, 112, 79 S.Ct. 1081, 1085, 3 L.Ed.2d 1115; Baggett v. Bullitt, 377 U.S. 360, 369, 84 S.Ct. 1316, 1321, 12 L.Ed.2d 377. Without those peripheral rights the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases.
12
In NAACP v. State of Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 1172, we protected the 'freedom to associate and privacy in one's associations,' noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid 'as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association.' Ibid. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of 'association' that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members. NAACP v. Button, 371 U.S. 415, 430—431, 83 S.Ct. 328, 336—337. In Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, we held it not permissible to bar a lawyer from practice, because he had once been a member of the Communist Party. The man's 'association with that Party' was not shown to be 'anything more than a political faith in a political party' (id., at 244, 77 S.Ct. at 759) and was not action of a kind proving bad moral character. Id., at 245—246, 77 S.Ct. at 759—760.
13
Those cases involved more than the 'right of assembly'—a right that extends to all irrespective of their race or idealogy. De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278. The right of 'association,' like the right of belief (West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178), is more than the right to attend a meeting; it includes the right to express one's attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful.
14
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516—522, 81 S.Ct. 1752, 6 L.Ed.2d 989 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'
15
The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746, as protection against all governmental invasions 'of the sanctity of a man's home and the privacies of life.'* We recently referred in Mapp v. Ohio, 367 U.S. 643, 656, 81 S.Ct. 1684, 1692, 6 L.Ed.2d 1081, to the Fourth Amendment as creating a 'right to privacy, no less important than any other right carefully and particularly reserved to the people.' See Beaney, The Constitutional Right to Privacy, 1962 Sup.Ct.Rev. 212; Griswold, The Right to be Let Alone, 55 Nw.U.L.Rev. 216 (1960).
16
We have had many controversies over these penumbral rights of 'privacy and repose.' See, e.g., Breard v. City of Alexandria, 341 U.S. 622, 626, 644, 71 S.Ct. 920, 923, 933, 95 L.Ed. 1233; Public Utilities Comm. v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492; Lanza v. State of New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384; Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877; Skinner v. State of Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655. These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.
17
The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a 'governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.' NAACP v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 1314, 12 L.Ed.2d 325. Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.
18
We deal with a right of privacy older than the Bill of Rights older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
19
Reversed.
20
Mr. Justice GOLDBERG, whom THE CHIEF JUSTICE and Mr. Justice BRENNAN join, concurring.
21
I agree with the Court that Connecticut's birth-control law unconstitutionally intrudes upon the right of marital privacy, and I join in its opinion and judgment. Although I have not accepted the view that 'due process' as used in the Fourteenth Amendment includes all of the first eight Amendments (see my concurring opinion in Pointer v. Texas, 380 U.S. 400, 410, 85 S.Ct. 1065, 1071, 13 L.Ed.2d 923, and the dissenting opinion of Mr. Justice Brennan in Cohen v. Hurley, 366 U.S. 117, 154, 81 S.Ct. 954, 974, 6 L.Ed.2d 156), I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty is not so restricted and that it embraces the right of marital privacy though that right is not mentioned explicitly in the Constitution1 is supported both by numerous decisions of this Court, referred to in the Court's opinion, and by the language and history of the Ninth Amendment. In reaching the conclusion that the right of marital privacy is protected, as being within the protected penumbra of specific guarantees of the Bill of Rights, the Court refers to the Ninth Amendment, ante, at 484. I add these words to emphasize the relevance of that Amendment to the Court's holding.
22
The Court stated many years ago that the Due Process Clause protects those liberties that are 'so rooted in the traditions and conscience of our people as to be ranked as fundamental.' Snyder v. Com. of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674. In Gitlow v. People of State of New York, 268 U.S. 652, 666, 45 S.Ct. 625, 630, 69 L.Ed. 1138, the Court said:
23
'For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States.' (Emphasis added.) And, in Meyer v. State of Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, the Court, referring to the Fourteenth Amendment, stated:
24
'While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also (for example,) the right * * * to marry, establish a home and bring up children * * *.'
25
This Court, in a series of decisions, has held that the Fourteenth Amendment absorbs and applies to the States those specifics of the first eight amendments which express fundamental personal rights.2 The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.
26
The Ninth Amendment reads, 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.' The Amendment is almost entirely the work of James Madison. It was introduced in Congress by him and passed the House and Senate with little or no debate and virtually no change in language. It was proffered to quiet expressed fears that a bill of specifically enumerated rights3 could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected.4
27
In presenting the proposed Amendment, Madison said:
28
'It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution (the Ninth Amendment).' I Annals of Congress 439 (Gales and Seaton ed. 1834).
29
Mr. Justice Story wrote of this argument against a bill of rights and the meaning of the Ninth Amendment:
30
'In regard to * * * (a) suggestion, that the affirmance of certain rights might disparage others, or might lead to argumentative implications in favor of other powers, it might be sufficient to say that such a course of reasoning could never be sustained upon any solid basis * * *. But a conclusive answer is, that such an attempt may be interdicted (as it has been) by a positive declaration in such a bill of rights that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people.' II Story, Commentaries on the Constitution of the United States 626—627 (5th ed. 1891).
31
He further stated, referring to the Ninth Amendment:
32
'This clause was manifestly introduced to prevent any perverse or ingenious misapplication of the wellknown maxim, that an affirmation in particular cases implies a negation in all others; and, e converso, that a negation in particular cases implies an affirmation in all others.' Id., at 651.
33
These statements of Madison and Story make clear that the Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights which the Constitution guaranteed to the people.5
34
While this Court has had little occasion to interpret the Ninth Amendment,6 '(i)t cannot be presumed that any clause in the constitution is intended to be without effect.' Marbury v. Madison, 1 Cranch 137, 174, 2 L.Ed. 60. In interpreting the Constitution, 'real effect should be given to all the words it uses.' Myers v. United States, 272 U.S. 52, 151, 47 S.Ct. 21, 37, 71 L.Ed. 160. The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental and so deeprooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that '(t)he enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.' (Emphasis added.)
35
A dissenting opinion suggests that my interpretation of the Ninth Amendment somehow 'broaden(s) the powers of this Court.' Post, at 520. With all due respect, I believe that it misses the import of what I am saying. I do not take the position of my Brother Black in his dissent in Adamson v. People of State of California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903, that the entire Bill of Rights is incorporated in the Fourteenth Amendment, and I do not mean to imply that the Ninth Amendment is applied against the States by the Fourteenth. Nor do I mean to state that the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive. As any student of this Court's opinions knows, this Court has held, often unanimously, that the Fifth and Fourteenth Amendments protect certain fundamental personal liberties from abridgment by the Federal Government or the States. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693; Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659; Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113; Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900; NAACP v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792; New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. The Ninth Amendment simply shows the intent of the Constitution's authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments. I do not see how this broadens the authority of the Court; rather it serves to support what this Court has been doing in protecting fundamental rights.
36
Nor am I turning somersaults with history in arguing that the Ninth Amendment is relevant in a case dealing with a State's infringement of a fundamental right. While the Ninth Amendment—and indeed the entire Bill of Rights—originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the 'liberty' protected by the Fifth And Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments. Cf. United Public Workers v. Mitchell, 330 U.S. 75, 94—95, 67 S.Ct. 556, 566, 567, 91 L.Ed. 754.
37
In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the 'traditions and (collective) conscience of our people' to determine whether a principle is 'so rooted (there) * * * as to be ranked as fundamental.' Snyder v. Com. of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332. The inquiry is whether a right involved 'is of such a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions' * * *.' Powell v. State of Alabama, 287 U.S. 45, 67, 53 S.Ct. 55, 63, 77 L.Ed. 158. 'Liberty' also 'gains content from the emanations of * * * specific (constitutional) guarantees' and 'from experience with the requirements of a free society.' Poe v. Ullman, 367 U.S. 497, 517, 81 S.Ct. 1752, 1763, 6 L.Ed.2d 989 (dissenting opinion of Mr. Justice Douglas).7
38
I agree fully with the Court that, applying these tests, the right of privacy is a fundamental personal right, emanating 'from the totality of the constitutional scheme under which we live.' Id., at 521, 81 S.Ct. at 1765. Mr. Justice Brandeis, dissenting in Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944, comprehensively summarized the principles underlying the Constitution's guarantees of privacy:
39
'The protection guaranteed by the (Fourth and Fifth) amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.' The Connecticut statutes here involved deal with a particularly important and sensitive area of privacy—that of the marital relation and the marital home. This Court recognized in Meyer v. Nebraska, supra, that the right 'to marry, establish a home and bring up children' was an essential part of the liberty guaranteed by the Fourteenth Amendment. 262 U.S., at 399, 43 S.Ct. at 626. In Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, the Court held unconstitutional an Oregon Act which forbade parents from sending their children to private schools because such an act 'unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.' 268 U.S., at 534—535, 45 S.Ct. at 573. As this Court said in Prince v. Massachusetts, 321 U.S. 158, at 166, 64 S.Ct. 438, at 442, 88 L.Ed. 645, the Meyer and Pierce decisions 'have respected the private realm of family life which the state cannot enter.'
40
I agree with Mr. Justice Harlan's statement in his dissenting opinion in Poe v. Ullman, 367 U.S. 497, 551—552, 81 S.Ct. 1752, 1781: 'Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right. * * * Of this whole 'private realm of family life' it is difficult to imagine what is more private or more intimate than a husband and wife's marital relations.'
41
The entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected.
42
Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family—a relation as old and as fundamental as our entire civilization—surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution.
43
My Brother STEWART, while characterizing the Connecticut birth control law as 'an uncommonly silly law,' post, at 527, would nevertheless let it stand on the ground that it is not for the courts to "substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws." Post, at 528. Elsewhere, I have stated that '(w)hile I quite agree with Mr. Justice Brandeis that * * * 'a * * * State may * * * serve as a laboratory; and try novel social and economic experiments,' New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (dissenting opinion), I do not believe that this includes the power to experiment with the fundamental liberties of citizens * * *.'8 The vice of the dissenters' views is that it would permit such experimentation by the States in the area of the fundamental personal rights of its citizens. I cannot agree that the Constitution grants such power either to the States or to the Federal Government.
44
The logic of the dissents would sanction federal or state legislation that seems to me even more plainly unconstitutional than the statute before us. Surely the Government, absent a showing of a compelling subordinating state interest, could not decree that all husbands and wives must be sterilized after two children have been born to them. Yet by their reasoning such an invasion of marital privacy would not be subject to constitutional challenge because, while it might be 'silly,' no provision of the Constitution specifically prevents the Government from curtailing the marital right to bear children and raise a family. While it may shock some of my Brethren that the Court today holds that the Constitution protects the right of marital privacy, in my view it is far more shocking to believe that the personal liberty guaranteed by the Constitution does not include protection against such totalitarian limitation of family size, which is at complete variance with our constitutional concepts. Yet, if upon a showing of a slender basis of rationality, a law outlawing voluntary birth control by married persons is valid, then, by the same reasoning, a law requiring compulsory birth control also would seem to be valid. In my view, however, both types of law would unjustifiably intrude upon rights of marital privacy which are constitutionally protected.
45
In a long series of cases this Court has held that where fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. 'Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling,' Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480. The law must be shown 'necessary, and not merely rationally related to, the accomplishment of a permissible state policy.' McLaughlin v. State of Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 290, 13 L.Ed.2d 222. See Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 161, 60 S.Ct. 146, 151, 84 L.Ed. 155.
46
Although the Connecticut birth-control law obviously encroaches upon a fundamental personal liberty, the State does not show that the law serves any 'subordinating (state) interest which is compelling' or that it is 'necessary * * * to the accomplishment of a permissible state policy.' The State, at most, argues that there is some rational relation between this statute and what is admittedly a legitimate subject of state concern—the discouraging of extra-marital relations. It says that preventing the use of birth-control devices by married persons helps prevent the indulgence by some in such extra-marital relations. The rationality of this justification is dubious, particularly in light of the admitted widespread availability to all persons in the State of Connecticut, unmarried as well as married, of birth-control devices for the prevention of disease, as distinguished from the prevention of conception, see Tileston v. Ullman, 129 Conn. 84, 26 A.2d 582. But, in any event, it is clear that the state interest in safeguarding marital fidelity can be served by a more discriminately tailored statute, which does not, like the present one, sweep unnecessarily broadly, reaching far beyond the evil sought to be dealt with and intruding upon the privacy of all married couples. See Aptheker v. Secretary of State, 378 U.S. 500, 514, 84 S.Ct. 1659, 1667; NAACP v. State of Alabama, 377 U.S. 288, 307—308, 84 S.Ct. 1302, 1313, 1314, 12 L.Ed.2d 325; McLaughlin v. State of Florida, supra, 379 U.S. at 196, 85 S.Ct. at 290. Here, as elsewhere, '(p)recision of regulation must be the touchstone in an area so closely touching our most precious freedoms.' NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340. The State of Connecticut does have statutes, the constitutionality of which is beyond doubt, which prohibit adultery and fornication. See Conn.Gen.Stat. §§ 53—218, 53—219 et seq. These statutes demonstrate that means for achieving the same basic purpose of protecting marital fidelity are available to Connecticut without the need to 'invade the area of protected freedoms.' NAACP v. State of Alabama, supra, 377 U.S. at 307, 84 S.Ct. at 1314. See McLaughlin v. State of Florida, supra, 379 U.S. at 196, 85 S.Ct. at 290.
47
Finally, it should be said of the Court's holding today that it in no way interferes with a State's proper regulation of sexual promiscuity or misconduct. As my Brother Harlan so well stated in his dissenting opinion in Poe v. Ullman, supra, 367 U.S. at 553, 81 S.Ct. at 1782.
48
'Adultery, homosexuality and the like are sexual intimacies which the State forbids * * * but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality * * * or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.'
49
In sum, I believe that the right of privacy in the marital relation is fundamental and basic—a personal right 'retained by the people' within the meaning of the Ninth Amendment. Connecticut cannot constitutionally abridge this fundamental right, which is protected by the Fourteenth Amendment from infringement by the States. I agree with the Court that petitioners' convictions must therefore be reversed.
50
Mr. Justice HARLAN, concurring in the judgment.
51
I fully agree with the judgment of reversal, but find myself unable to join the Court's opinion. The reason is that it seems to me to evince an approach to this case very much like that taken by my Brothers BLACK and STEWART in dissent, namely: the Due Process Clause of the Fourteenth Amendment does not touch this Connecticut statute unless the enactment is found to violate some right assured by the letter or penumbra of the Bill of Rights.
52
In other words, what I find implicit in the Court's opinion is that the 'incorporation' doctrine may be used to restrict the reach of Fourteenth Amendment Due Process. For me this is just as unacceptable constitutional doctrine as is the use of the 'incorporation' approach to impose upon the States all the requirements of the Bill of Rights as found in the provisions of the first eight amendments and in the decisions of this Court interpreting them. See, e.g., my concurring opinions in Pointer v. State of Texas, 380 U.S. 400, 408, 85 S.Ct. 1065, 1070, 13 L.Ed.2d 923, and Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106, and my dissenting opinion in Poe v. Ullman, 367 U.S. 497, 522, at pp. 539—545, 81 S.Ct. 1752, 1774, 1778.
53
In my view, the proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values 'implicit in the concept of ordered liberty,' Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288. For reasons stated at length in my dissenting opinion in Poe v. Ullman, supra, I believe that it does. While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom.
54
A further observation seems in order respecting the justification of my Brothers BLACK and STEWART for their 'incorporation' approach to this case. Their approach does not rest on historical reasons, which are of course wholly lacking (see Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan.L.Rev. 5 (1949)), but on the thesis that by limiting the content of the Due Process Clause of the Fourteenth Amendment to the protection of rights which can be found elsewhere in the Constitution, in this instance in the Bill of Rights, judges will thus be confined to 'interpretation' of specific constitutional provisions, and will thereby be restrained from introducing their own notions of constitutional right and wrong into the 'vague contours of the Due Process Clause.' Rochin v. People of State of California, 342 U.S. 165, 170, 72 S.Ct. 205, 208, 96 L.Ed. 183.
55
While I could not more heartily agree that judicial 'self restraint' is an indispensable ingredient of sound constitutional adjudication, I do submit that the formula suggested for achieving it is more hollow than real. 'Specific' provisions of the Constitution, no less than 'due process,' lend themselves as readily to 'personal' interpretations by judges whose constitutional outlook is simply to keep the Constitution in supposed 'tune with the times' (post, p. 522). Need one go further than to recall last Term's reapportionment cases, Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481, and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, where a majority of the Court 'interpreted' 'by the People' (Art. I, § 2) and 'equal protection' (Amdt. 14) to command 'one person, one vote,' an interpretation that was made in the face of irrefutable and still unanswered history to the contrary? See my dissenting opinions in those cases, 376 U.S., at 20, 84 S.Ct. at 536; 377 U.S., at 589, 84 S.Ct. at 1395.
56
Judicial self-restraint will not, I suggest, be brought about in the 'due process' area by the historically unfounded incorporation formula long advanced by my Brother BLACK, and now in part espoused by my Brother STEWART. It will be achieved in this area, as in other constitutional areas, only by continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms. See Adamson v. People of State of California, 332 U.S. 46, 59, 67 S.Ct. 1672, 91 L.Ed. 1903 (Mr. Justice Frankfurter, concurring). Adherence to these principles will not, of course, obviate all constitutional differences of opinion among judges, nor should it. Their continued recognition will, however, go farther toward keeping most judges from roaming at large in the constitutional field than will the interpolation into the Constitution of an artificial and largely illusory restriction on the content of the Due Process Clause.*
57
Mr. Justice WHITE, concurring in the judgment.
58
In my view this Connecticut law as applied to married couples deprives them of 'liberty' without due process of law, as that concept is used in the Fourteenth Amendment. I therefore concur in the judgment of the Court reversing these convictions under Connecticut's aiding and abetting statute.
59
It would be unduly repetitious, and belaboring the obvious, to expound on the impact of this statute on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capricious denials or on the nature of this liberty. Suffice it to say that this is not the first time this Court has had occasion to articulate that the liberty entitled to protection under the Fourteenth Amendment includes the right 'to marry, establish a home and bring up children,' Meyer v. State of Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed.2d 1042 and 'the liberty * * * to direct the upbringing and education of children,' Pierce v. Society of Sisters, 268 U.S. 510, 534—535, 45 S.Ct. 571, 573, 69 L.Ed. 1070, and that these are among 'the basic civil rights of man.' Skinner v. State of Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655. These decisions affirm that there is a 'realm of family life which the state cannot enter' without substantial justification. Prince v. Com. of Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645. Surely the right invoked in this case, to be free of regulation of the intimacies of the marriage relationship, 'come(s) to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.' Kovacs v. Cooper, 336 U.S. 77, 95, 69 S.Ct. 448, 458, 93 L.Ed. 513 (opinion of Frankfurter, J.).
60
The Connecticut anti-contraceptive statute deals rather substantially with this relationship. For it forbids all married persons the right to use birth-control devices, regardless of whether their use is dictated by considerations of family planning, Trubek v. Ullman, 147 Conn. 633, 165 A.2d 158, health, or indeed even of life itself. Buxton v. Ullman, 147 Conn. 48, 156 A.2d 508. The anti-use statute, together with the general aiding and abetting statute, prohibits doctors from affording advice to married persons on proper and effective methods of birth control. Tileston v. Ullman, 129 Conn. 84, 26 A.2d 582. And the clear effect of these statutes, as enforced, is to deny disadvantaged citizens of Connecticut, those without either adequate knowledge or resources to obtain private counseling, access to medical assistance and up-to-date information in respect to proper methods of birth control. State v. Nelson, 126 Conn. 412, 11 A.2d 856; State v. Griswold, 151 Conn. 544, 200 A.2d 479. In my view, a statute with these effects bears a substantial burden of justification when attacked under the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Skinner v. State of Oklahoma, 316 U.S. 535, 62 S.Ct. 1110; Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796; McLaughlin v. Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 288.
61
An examination of the justification offered, however, cannot be avoided by saying that the Connecticut anti-use statute invades a protected area of privacy and association or that it demands the marriage relationship. The nature of the right invaded is pertinent, to be sure, for statutes regulating sensitive areas of liberty do, under the cases of this Court, require 'strict scrutiny,' Skinner v. State of Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, and 'must be viewed in the light of less drastic means for achieving the same basic purpose.' Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231. 'Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.' Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417. See also McLaughlin v. State of Florida, 379 U.S. 184, 85 S.Ct. 283. But such statutes, if reasonably necessary for the effectuation of a legitimate and substantial state interest, and not arbitrary or capricious in application, are not invalid under the Due Process Clause. Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271.*
62
As I read the opinions of the Connecticut courts and the argument of Connecticut in this Court, the State claims but one justification for its anti-use statute. Cf. Allied Stores of Ohio v. Bowers, 358 U.S. 522, 530, 79 S.Ct. 437, 442, 3 L.Ed.2d 480; Martin v. Walton, 368 U.S. 25, 28, 82 S.Ct. 1, 3, 7 L.Ed.2d 5 (Douglas, J., dissenting). There is no serious contention that Connecticut thinks the use of artificial or external methods of contraception immoral or unwise in itself, or that the anti-use statute is founded upon any policy of promoting population expansion. Rather, the statute is said to serve the State's policy against all forms of promiscuous or illicit sexual relationships, be they premarital or extramarital, concededly a permissible and legitimate legislative goal.
63
Without taking issue with the premise that the fear of conception operates as a deterrent to such relationships in addition to the criminal proscriptions Connecticut has against such conduct, I wholly fail to see how the ban on the use of contraceptives by married couples in any way reinforces the State's ban on illicit sexual relationships. See Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756. Connecticut does not bar the importation or possession of contraceptive devices; they are not considered contraband material under state law, State v. Certain Contraceptive Materials, 126 Conn. 428, 11 A.2d 863, and their availability in that State is not seriously disputed. The only way Connecticut seeks to limit or control the availability of such devices is through its general aiding and abetting statute whose operation in this context has been quite obviously ineffective and whose most serious use has been against birth-control clinics rendering advice to married, rather than unmarried, persons. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064. Indeed, after over 80 years of the State's proscription of use, the legality of the sale of such devices to prevent disease has never been expressly passed upon, although it appears that sales have long occurred and have only infrequently been challenged. This 'undeviating policy * * * throughout all the long years * * * bespeaks more than prosecutorial paralysis.' Poe v. Ullman, 367 U.S. 497, 502, 81 S.Ct. 1752, 1755. Moreover, it would appear that the sale of contraceptives to prevent disease is plainly legal under Connecticut law.
64
In these circumstances one is rather hard pressed to explain how the ban on use by married persons in any way prevents use of such devices by persons engaging in illicit sexual relations and thereby contributes to the State's policy against such relationships. Neither the state courts nor the State before the bar of this Court has tendered such an explanation. It is purely fanciful to believe that the broad proscription on use facilitates discovery of use by persons engaging in a prohibited relationship or for some other reason makes such use more unlikely and thus can be supported by any sort of administrative consideration. Perhaps the theory is that the flat ban on use prevents married people from possessing contraceptives and without the ready availability of such devices for use in the marital relationship, there will be no or less temptation to use them in extramarital ones. This reasoning rests on the premise that married people will comply with the ban in regard to their marital relationship, notwithstanding total nonenforcement in this context and apparent nonenforcibility, but will not comply with criminal statutes prohibiting extramarital affairs and the anti-use statute in respect to illicit sexual relationships, a premise whose validity has not been demonstrated and whose intrinsic validity is not very evident. At most the broad ban is of marginal utility to the declared objective. A statute limiting its prohibition on use to persons engaging in the prohibited relationship would serve the end posited by Connecticut in the same way, and with the same effectiveness, or ineffectiveness, as the broad anti-use statute under attack in this case. I find nothing in this record justifying the sweeping scope of this statute, with its telling effect on the freedoms of married persons, and therefore conclude that it deprives such persons of liberty without due process of law.
65
Mr. Justice BLACK, with whom Mr. Justice STEWART joins, dissenting.
66
I agree with my Brother STEWART'S dissenting opinion. And like him I do not to any extent whatever base my view that this Connecticut law is constitutional on a belief that the law is wise or that its policy is a good one. In order that there may be no room at all to doubt why I vote as I do, I feel constrained to add that the law is every bit as offensive to me as it is my Brethren of the majority and my Brothers HARLAN, WHITE and GOLDBERG who, reciting reasons why it is offensive to them, hold it unconstitutional. There is no single one of the graphic and eloquent strictures and criticisms fired at the policy of this Connecticut law either by the Court's opinion or by those of my concurring Brethren to which I cannot subscribe—except their conclusion that the evil qualities they see in the law make it unconstitutional.
67
Had the doctor defendant here, or even the nondoctor defendant, been convicted for doing nothing more than expressing opinions to persons coming to the clinic that certain contraceptive devices, medicines or practices would do them good and would be desirable, or for telling people how devices could be used, I can think of no reasons at this time why their expressions of views would not be protected by the First and Fourteenth Amendments, which guarantee freedom of speech. Cf. Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89; NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405. But speech is one thing; conduct and physical activities are quite another. See, e.g., Cox v. State of Louisiana, 379 U.S. 536, 554—555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471; Cox v. State of Louisiana, 379 U.S. 559, 563—564, 85 S.Ct. 476, 480, 13 L.Ed.2d 487; id., 575—584 (concurring opinion); Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; cf. Reynolds v. United States, 98 U.S. 145, 163—164, 25 L.Ed. 244. The two defendants here were active participants in an organization which gave physical examinations to women, advised them what kind of contraceptive devices or medicines would most likely be satisfactory for them, and then supplied the devices themselves, all for a graduated scale of fees, based on the family income. Thus these defendants admittedly engaged with others in a planned course of conduct to help people violate the Connecticut law. Merely because some speech was used in carrying on the conduct just as in ordinary life some speech accompanies most kinds of conduct—we are not in my view justified in holding that the First Amendment forbids the State to punish their conduct. Strongly as I desire to protect all First Amendment freedoms, I am unable to stretch the Amendment so as to afford protection to the conduct of these defendants in violating the Connecticut law. What would be the constitutional fate of the law if hereafter applied to punish nothing but speech is, as I have said, quite another matter.
68
The Court talks about a constitutional 'right of privacy' as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the 'privacy' of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth Amendment's guarantee against 'unreasonable searches and seizures.' But I think it belittles that Amendment to talk about it as though it protects nothing but 'privacy.' To treat it that way is to give it a niggardly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given. The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone. And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.
69
One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term 'right of privacy' as a comprehensive substitute for the Fourth Amendment's guarantee against 'unreasonable searches and seizures.' 'Privacy' is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. I have expressed the view many times that First Amendment freedoms, for example, have suffered from a failure of the courts to stick to the simple language of the First Amendment in construing it, instead of invoking multitudes of words substituted for those the Framers used. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 293, 84 S.Ct. 710, 733, 11 L.Ed.2d 686 (concurring opinion); cases collected in City of El Paso v. Simmons, 379 U.S. 497, 517, n. 1, 85 S.Ct. 577, 588, 13 L.Ed.2d 446 (dissenting opinion); Black, The Bill of Rights, 35 N.Y.U.L.Rev. 865. For these reasons I get nowhere in this case by talk about a constitutional 'right or privacy' as an emanation from one or more constitutional provisions.1 I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court's judgment and the reasons it gives for holding this Connecticut law unconstitutional.
70
This brings me to the arguments made by my Brothers HARLAN, WHITE and GOLDBERG for invalidating the Connecticut law. Brothers HARLAN2 and WHITE would invalidate it by reliance on the Due Process Clause of the Fourteenth Amendment, but Brother GOLDBERG, while agreeing with Brother HARLAN, relies also on the Ninth Amendment. I have no doubt that the Connecticut law could be applied in such a way as to abridge freedom of speech and press and therefore violate the First and Fourteenth Amendments. My disagreement with the Court's opinion holding that there is such a violation here is a narrow one, relating to the application of the First Amendment to the facts and circumstances of this particular case. But my disagreement with Brothers HARLAN, WHITE and GOLDBERG is more basic. I think that if properly construed neither the Due Process Clause nor the Ninth Amendment, nor both together, could under any circumstances be a proper basis for invalidating the Connecticut law. I discuss the due process and Ninth Amendment arguments together because on analysis they turn out to be the same thing—merely using different words to claim for this Court and the federal judiciary power to invalidate any legislative act which the judges find irrational, unreasonable or offensive.
71
The due process argument which my Brothers HARLAN and WHITE adopt here is based, as their opinions indicate, on the premise that this Court is vested with power to invalidate all state laws that it consider to be arbitrary, capricious, unreasonable, or oppressive, or this Court's belief that a particular state law under scrutiny has no 'rational or justifying' purpose, or is offensive to a 'sense of fairness and justice.'3 If these formulas based on 'natural justice,' or others which mean the same thing,4 are to prevail, they require judges to determine what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary. The power to make such decisions is of course that of a legislative body. Surely it has to be admitted that no provision of the Constitution specifically gives such blanket power to courts to exercise such a supervisory veto over the wisdom and value of legislative policies and to hold unconstitutional those laws which they believe unwise or dangerous. I readily admit that no legislative body, state or national, should pass laws that can justly be given any of the invidious labels invoked as constitutional excuses to strike down state laws. But perhaps it is not too much to say that no legislative body ever does pass laws without believing that they will accomplish a sane, rational, wise and justifiable purpose. While I completely subscribe to the holding of Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60, and subsequent cases, that our Court has constitutional power to strike down statutes, state or federal, that violate commands of the Federal Constitution, I do not believe that we are granted power by the Due Process Clause or any other constitutional provision or provisions to measure constitutionality by our belief that legislation is arbitrary, capricious or unreasonable, or accomplishes no justifiable purpose, or is offensive to our own notions of 'civilized standards of conduct.'5 Such an appraisal of the wisdom of legislation is an attribute of the power to make laws, not of the power to interpret them. The use by federal courts of such a formula or doctrine or whatnot to veto federal or state laws simply takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom and transfers that power to this Court for ultimate determination—a power which was specifically denied to federal courts by the convention that framed the Constitution.6
72
Of the cases on which my Brothers WHITE and GOLDBERG rely so heavily, undoubtedly the reasoning of two of them supports their result here—as would that of a number of others which they do not bother to name, e.g., Lochner v. State of New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937; Coppage v. State of Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441; Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412, 68 L.Ed. 813, and Adkins v. Children's Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785. The two they do cite and quote from, Meyer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, and Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, were both decided in opinions by Mr. Justice McReynolds which elaborated the same natural law due process philosophy found in Lochner v. New York, supra, one of the cases on which he relied in Meyer, along with such other long-discredited decisions as, e.g., Adams v. Tanner, 244 U.S. 590, 37 S.Ct. 662, 61 L.Ed. 1336, and Adkins v. Children's Hospital, supra. Meyer held unconstitutional, as an 'arbitrary' and unreasonable interference with the right of a teacher to carry on his occupation and of parents to hire him, a state law forbidding the teaching of modern foreign languages to young children in the schools.7 And in Pierce, relying principally on Meyer, Mr. Justice McReynolds said that a state law requiring that all children attend public schools interfered unconstitutionally with the property rights of private school corporations because it was an 'arbitrary, unreasonable, and unlawful interference' which threatened 'destruction of their business and property.' 268 U.S., at 536, 45 S.Ct. at 574. Without expressing an opinion as to whether either of those cases reached a correct result in light of our later decisions applying the First Amendment to the States through the Fourteenth,8 I merely point out that the reasoning stated in Meyer and Pierce was the same natural law due process philosophy which many later opinions repudiated, and which I cannot accept. Brothers WHITE and GOLDBERG also cite other cases, such as NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405; Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231, and Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, which held that States in regulating conduct could not, consistently with the First Amendment as applied to them by the Fourteenth, pass unnecessarily broad laws which might indirectly infringe on First Amendment freedoms.9 See Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 7—8, 84 S.Ct. 1113, 1117, 12 L.Ed.2d 89.10 Brothers WHITE and GOLDBERG now apparently would start from this requirement that laws be narrowly drafted so as not to curtail free speech and assembly, and extend it limitlessly to require States to justify and law restricting 'liberty' as my Brethren define 'liberty.' This would mean at the very least, I suppose, that every state cri minal statute—since it must inevitably curtail 'liberty' to some extent—would be suspect, and would have to be justified to this Court.11
73
My Brother GOLDBERG has adopted the recent discovery12 that the Ninth Amendment as well as the Due Process Clause can be used by this Court as authority to strike down all state legislation which this Court thinks violates 'fundamental principles of liberty and justice,' or is contrary to the 'traditions and (collective) conscience of our people.' He also states, without proof satisfactory to me, that in making decisions on this basis judges will not consider 'their personal and private notions.' One may ask how they can avoid considering them. Our Court certainly has no machinery with which to take a Gallup Poll.13 And the scientific miracles of this age have not yet produced a gadget which the Court can use to determine what traditions are rooted in the '(collective) conscience of our people.' Moreover, one would certainly have to look far beyond the language of the Ninth Amendment14 to find that the Framers vested in this Court any such awesome veto powers over lawmaking, either by the States or by the Congress. Nor does anything in the history of the Amendment offer any support for such a shocking doctrine. The whole history of the adoption of the Constitution and Bill of Rights points the other way, and the very material quoted by my Brother GOLDBERG shows that the Ninth Amendment was intended to protect against the idea that 'by enumerating particular exceptions to the grant of power' to the Federal Government, 'those rights which were not singled out, were intended to be assigned into the hands of the General Government (the United States), and were consequently insecure.'15 That Amendment was passed, not to broaden the powers of this Court or any other department of 'the General Government,' but, as every student of history knows, to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication. If any broad, unlimited power to hold laws unconstitutional because they offend what this Court conceives to be the '(collective) conscience of our people' is vested in this Court by the Ninth Amendment, the Fourteenth Amendment, or any other provision of the Constitution, it was not given by the Framers, but rather has been bestowed on the Court by the Court. This fact is perhaps responsible for the peculiar phenomenon that for a period of a century and a half no serious suggestion was ever made that the Ninth Amendment, enacted to protect state powers against federal invasion, could be used as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs. Use of any such broad, unbounded judicial authority would make of this Court's members a day-to-day constitutional convention.
74
I repeat so as not to be misunderstood that this Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court's belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have.16
75
I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes. For myself, I must with all deference reject that philosophy. The Constitution makers knew the need for change and provided for it. Amendments suggested by the people's elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and being somewhat oldfashioned I must add it is good enough for me. And so, I cannot rely on the Due Process Clause or the Ninth Amendment or any mysterious and uncertain natural law concept as a reason for striking down this state law. The Due Process Clause with an 'arbitrary and capricious' or 'shocking to the conscience' formula was liberally used by this Court to strike down economic legislation in the early decades of this century, threatening, many people thought, the tranquility and stability of the Nation. See, e.g., Lochner v. State of New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937. That formula, based on subjective considerations of 'natural justice,' is no less dangerous when used to enforce this Court's views about personal rights than those about economic rights. I had thought that we had laid that formula, as a means for striking down state legislation, to rest once and for all in cases like West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703; Olsen v. State of Nebraska ex rel. Western Reference & Bond Assn., 313 U.S. 236, 61 S.Ct. 862, 85 L.Ed. 1305, and many other opinions.17 See also Lochner v. New York, 198 U.S. 45, 74, 25 S.Ct. 539, 551 (Holmes, J., dissenting).
76
In Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93, this Court two years ago said in an opinion joined by all the Justices but one18 that
77
'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.'
78
And only six weeks ago, without even bothering to hear argument, this Court overruled Tyson & Brother v. Banton, 273 U.S. 418, 47 S.Ct. 426, 71 L.Ed. 718, which had held state laws regulating ticket brokers to be a denial of due process of law.19 Gold v. DiCarlo, 380 U.S. 520, 85 S.Ct. 1332. I find April's holding hard to square with what my concurring Brethren urge today. They would reinstate the Lochner, Coppage, Adkins, Burns line of cases, cases from which this Court recoiled after the 1930's, and which had been I thought totally discredited until now. Apparently my Brethren have less quarrel with state economic regulations than former Justices of their persuasion had. But any limitation upon their using the natural law due process philosophy to strike down any state law, dealing with any activity whatever, will obviously be only self-imposed.20
79
In 1798, when this Court was asked to hold another Connecticut law unconstitutional, Justice Iredell said:
80
'(I)t has been the policy of all the American states, which have, individually, framed their state constitutions since the revolution, and of the people of the United States, when they framed the Federal Constitution, to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case. If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.' Calder v. Bull, 3 Dall. 386, 399, 1 L.Ed. 648 (emphasis in original).
81
I would adhere to that constitutional philosophy in passing on this Connecticut law today. I am not persuaded to deviate from the view which I stated in 1947 in Adamson v. People of State of California, 332 U.S. 46, 90—-92, 67 S.Ct. 1672, 1696, 91 L.Ed. 1903 (dissenting opinion):
82
'Since Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60, was decided, the practice has been firmly established for better or worse, that courts can strike down legislative enactments which violate the Constitution. This process, of course, involves interpretation, and since words can have many meanings, interpretation obviously may result in contraction or extension of the original purpose of a constitutional provision thereby affecting policy. But to pass upon the constitutionality of statutes by looking to the particular standards enumerated in the Bill of Rights and other parts of the Constitution is one thing; to invalidate statutes because of application of 'natural law' deemed to be above and undefined by the Constitution is another. 'In the one instance, courts proceeding within clearly marked constitutional boundaries seek to execute policies written into the Constitution; in the other they roam at will in the limitless area of their own beliefs as to reasonableness and actually select policies, a responsibility which the Constitution entrusts to the legislative representatives of the people.' Federal Power Commission v. Natural Gas Pipeline Co., 315 U.S. 575, 599, 601, n. 4, 62 S.Ct. 736, 749, 750, 86 L.Ed. 1037.'21 (Footnotes omitted.)
83
The late Judge Learned Hand, after emphasizing his view that judges should not use the due process formula suggested in the concurring opinions today or any other formula like it to invalidate legislation offensive to their 'personal preferences,'22 made the statement, with which I fully agree, that:
84
'For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not.'23
85
So far as I am concerned, Connecticut's law as applied here is not forbidden by any provision of the Federal Constitution as that Constitution was written, and I would therefore affirm.
86
Mr. Justice STEWART, whom Mr. Justice BLACK joins, dissenting.
87
Since 1879 Connecticut has had on its books a law which forbids the use of contraceptives by anyone. I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual's moral, ethical, and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual's choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.
88
In the course of its opinion the Court refers to no less than six Amendments to the Constitution: the First, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth. But the Court does not say which of these Amendments, if any, it thinks is infringed by this Connecticut law.
89
We are told that the Due Process Clause of the Fourteenth Amendment is not, as such, the 'guide' in this case. With that much I agree. There is no claim that this law, duly enacted by the Connecticut Legislature, is unconstitutionally vague. There is no claim that the appellants were denied any of the elements of procedural due process at their trial, so as to make their convictions constitutionally invalid. And, as the Court says, the day has long passed since the Due Process Clause was regarded as a proper instrument for determining 'the wisdom, need, and propriety' of state laws. Compare Lochner v. State of New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937, with Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93. My Brothers HARLAN and WHITE to the contrary, '(w)e 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.' Ferguson v. Skrupa, supra, 372 U.S. at 730, 83 S.Ct. at 1031.
90
As to the First, Third, Fourth, and Fifth Amendments, I can find nothing in any of them to invalidate this Connecticut law, even assuming that all those Amendments are fully applicable against the States.1 It has not even been argued that this is a law 'respecting an establishment of religion, or prohibiting the free exercise thereof.'2 And surely, unless the solemn process of constitutional adjudication is to descend to the level of a play on words, there is not involved here any abridgment of '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.'3 No soldier has been quartered in any house.4 There has been no search, and no seizure.5 Nobody has been compelled to be a witness against himself.6
91
The Court also quotes the Ninth Amendment, and my Brother GOLDBERG's concurring opinion relies heavily upon it. But to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment, like its companion the Tenth, which this Court held 'states but a truism that all is retained which has not been surrendered,' United States v. Darby, 312 U.S. 100, 124, 61 S.Ct. 451, 462, 85 L.Ed. 609, was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder.
92
What provision of the Constitution, then, does make this state law invalid? The Court says it is the right of privacy 'created by several fundamental constitutional guarantees.' With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.7
93
At the oral argument in this case we were told that the Connecticut law does not 'conform to current community standards.' But it is not the function of this Court to decide cases on the basis of community standards. We are here to decide cases 'agreeably to the Constitution and laws of the United States.' It is the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not. If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.8
*
The Court said in full about this right of privacy:
'The principles laid down in this opinion (by Lord Camden in Entick v. Carrington, 19 How.St.Tr. 1029) affect the very essence of constitutional liberty and security. They reach further than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offense,—it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony, or of his private papers to be used as evidence to convict him of crime, or to forfeit his goods, is within the condemnation of that judgment. In this regard the fourth and fifth amendments run almost into each other.' 116 U.S., at 630, 6 S.Ct., at 532.
1
My Brother STEWART dissents on the ground that he 'can find no * * * general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.' Post, at 530. He would require a more explicit guarantee than the one which the Court derives from several constitutional amendments. This Court, however, has never held that the Bill of Rights or the Fourteenth Amendment protects only those rights that the Constitution specifically mentions by name. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884; Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992; Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204; Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 780, 13 L.Ed.2d 675; Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796; NAACP v. Alabama, 360 U.S. 240, 79 S.Ct. 1001, 3 L.Ed.2d 1205; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Meyer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 625. To the contrary, this Court, for example, in Bolling v. Sharpe, supra, while recognizing that the Fifth Amendment does not contain the 'explicit safeguard' of an equal protection clause, id., 347 U.S. at 499, 74 S.Ct. at 694, nevertheless derived an equal protection principle from that Amendment's Due Process Clause. And in Schware v. Board of Bar Examiners, supra, the Court held that the Fourteenth Amendment protects from arbitrary state action the right to pursue an occupation, such as the practice of law.
2
See, e.g., Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979; Gitlow v. New York, supra; Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782; Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; Pointer v. Texas, supra; Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.
3
Madison himself had previously pointed out the dangers of inaccuracy resulting from the fact that 'no language is so copious as to supply words and phrases for every complex idea.' The Federalist, No. 37 (Cooke ed. 1961), at 236.
4
Alexander Hamilton was opposed to a bill of rights on the ground that it was unnecessary because the Federal Government was a government of delegated powers and it was not granted the power to intrude upon fundamental personal rights. The Federalist, No. 84 (Cooke ed. 1961), at 578—579. He also argued,
'I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power.' Id., at 579. The Ninth Amendment and the Tenth Amendment, which provides, 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,' were apparently also designed in part to meet the above-quoted argument of Hamilton.
5
The Tenth Amendment similarly made clear that the States and the people retained all those powers not expressly delegated to the Federal Government.
6
This Amendment has been referred to as 'The Forgotten Ninth Amendment,' in a book with that title by Bennett B. Patterson (1955). Other commentary on the Ninth Amendment includes Redlich, Are There 'Certain Rights * * * Retained by the People'? 37 N.Y.U.L.Rev. 787 (1962), and Kelsey, The Ninth Amendment of the Federal Constitution, 11 Ind.L.J. 309 (1936). As far as I am aware, until today this Court has referred to the Ninth Amendment only in United Public Workers v. Mitchell, 330 U.S. 75, 94—95, 67 S.Ct. 556, 566—567, 91 L.Ed. 754; Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 143—144, 59 S.Ct. 366, 372, 83 L.Ed. 543; and Ashwander v. TVA, 297 U.S. 288, 330—331, 56 S.Ct. 466, 475, 80 L.Ed. 688. See also Calder v. Bull, 3 Dall. 386, 388, 1 L.Ed. 648; Loan Ass'n v. City of Topeka, 20 Wall. 655, 662—663, 22 L.Ed. 455.
In United Public Workers v. Mitchell, supra, 330 U.S. at 94 95, 67 S.Ct. at 567, the Court stated: 'We accept appellant's contention that the nature of political rights reserved to the people by the Ninth and Tenth Amendments (is) involved. The right claimed as inviolate may be stated as the right of a citizen to act as a party official or worker to further his own political views. Thus we have a measure of interference by the Hatch Act and the Rules with what otherwise would be the freedom of the civil servant under the First, Ninth and Tenth Amendments. And, if we look upon due process as a guarantee of freedom in those fields, there is a corresponding impairment of that right under the Fifth Amendment.'
7
In light of the tests enunciated in these cases it cannot be said that a judge's responsibility to determine whether a right is basic and fundamental in this sense vests him with unrestricted personal discretion. In fact, a hesitancy to allow too broad a discretion was a substantial reason leading me to conclude in Pointer v. Texas, supra, 380 U.S. at 413—414, 85 S.Ct. at 1073, that those rights absorbed by the Fourteenth Amendment and applied to the States because they are fundamental apply with equal force and to the same extent against both federal and state governments. In Pointer I said that the contrary view would require 'this Court to make the extremely subjective and excessively discretionary determination as to whether a practice, forbidden the Federal Government by a fundamental constitutional guarantee, is, as viewed in the factual circumstances surrounding each individual case, sufficiently repugnant to the notion of due process as to be forbidden the States.' Id., at 413, 85 S.Ct. at 1073.
8
Pointer v. Texas, supra, 380 U.S. at 413, 85 S.Ct. at 1073. See also the discussion of my Brother Douglas, Poe v. Ullman, supra, 367 U.S. at 517—518, 81 S.Ct. at 1763 (dissenting opinion).
*
Indeed, my Brother BLACK, in arguing his thesis, is forced to lay aside a host of of cases in which the Court has recognized fundamental rights in the Fourteenth Amendment without specific reliance upon the Bill of Rights. Post, p. 512, n. 4.
*
Dissenting opinions assert that the liberty guaranteed by the Due Process Clause is limited to a guarantee against unduly vague statutes and against procedural unfairness at trial. Under this view the Court is without authority to ascertain whether a challenged statute, or its application, has a permissible purpose and whether the manner of regulation bears a rational or justifying relationship to this purpose. A long line of cases makes very clear that this has not been the view of this Court. Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623; Jacobson v. Com. of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643; Douglas v. Noble, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590; Meyer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 625; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571; Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752; Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659; Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271.
The traditional due process test was well articulated, and applied, in Schware v. Board of Bar Examiners, supra, a case which placed no reliance on the specific guarantees of the Bill of Rights.
'A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment. Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623. Cf. Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692; Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. And see Ex parte Secombe, 19 How. 9, 13, 15 L.Ed. 565. A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. Douglas v. Noble, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590; Cummings v. State of Missouri, 4 Wall. 277, 319—320, 18 L.Ed. 356. Cf. Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940. Obviously an applicant could not be excluded merely because he was a Republican or a Negro or a member of a particular church. Even in applying permissible standards, officers of a State cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards, or when their action is invidiously discriminatory.' 353 U.S., at 238—239, 77 S.Ct. at 756. Cf. Martin v. Walton, 368 U.S. 25, 26, 82 S.Ct. 1, 2, 7 L.Ed.2d 5 (Douglas, J., dissenting).
1
The phrase 'right to privacy' appears first to have gained currency from an article written by Messrs. Warren and (later Mr. Justice) Brandeis in 1890 which urged that States should give some form of tort relief to persons whose private affairs were exploited by others. The Right to Privacy, 4 Harv.L.Rev. 193. Largely as a result of this article, some States have passed statutes creating such a cause of action, and in others state courts have done the same thing by exercising their powers as courts of common law. See generally 41 Am.Jur. 926—927. Thus the Supreme Court of Georgia, in granting a cause of action for damages to a man whose picture had been used in a newspaper advertisement without his consent, said that 'A right of privacy in matters purely private is * * * derived from natural law' and that 'The conclusion reached by us seems to be * * * thoroughly in accord with natural justice, with the principles of the law of every civilized nation, and especially with the elastic principles of the common law * * *.' Pavesich v. New England Life Ins. Co., 122 Ga. 190, 194, 218, 50 S.E. 68, 70, 80, 69 L.R.A. 101. Observing that 'the right of privacy * * * presses for recognition here,' today this Court, which I did not understand to have power to sit as a court of common law, now appears to be exalting a phrase which Warren and Brandeis used in discussing grounds for tort relief, to the level of a constitutional rule which prevents state legislatures from passing any law deemed by this Court to interfere with 'privacy.'
2
Brother Harlan's views are spelled out at greater length in his dissenting opinion in Poe v. Ullman, 367 U.S. 497, 539—555, 81 S.Ct. 1752, 1774, 1783, 6 L.Ed.2d 989.
3
Indeed, Brother WHITE appears to have gone beyond past pronouncements of the natural law due process theory, which at least said that the Court should exercise this unlimited power to declare acts unconstitutional with 'restraint.' He now says that, instead of being presumed constitutional, see Adkins v. Children's Hospital, 261 U.S. 525, 544, 43 S.Ct. 394, 396, 67 L.Ed. 785, the statute here 'bears a substantial burden of justification when attacked under the Fourteenth Amendment.'
4
A collection of the catchwords and catch phrases invoked by judges who would strike down under the Fourteenth Amendment laws which offend their notions of natural justice would fill many pages. Thus it has been said that this Court can forbid state action
which 'shocks the conscience,' Rochin v. People of California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183, sufficiently to 'shock itself into the protective arms of the Constitution,' Irvine v. People of State of California, 347 U.S. 128, 138, 74 S.Ct. 381, 386, 98 L.Ed. 561 (concurring opinion). It has been urged that States may not run counter to the 'decencies of civilized conduct,' Rochin, supra, 342 U.S. at 173, 72 S.Ct. at 210, or 'some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,' Snyder v. Com. of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674, or to 'those canons of decency and fairness which express the notions of justice of English-speaking peoples,' Malinski v. People of State of New York, 324 U.S. 401, 417, 65 S.Ct. 781, 789, 89 L.Ed. 1029 (concurring opinion), or to 'the community's sense of fair play and decency,' Rochin, supra, 342 U.S. at 173, 72 S.Ct. at 210. It has been said that we must decide whether a state law is 'fair, reasonable and appropriate,' or is rather 'an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty, or to enter into * * * contracts,' Lochner v. State of New York, 198 U.S. 45, 56, 25 S.Ct. 539, 543, 49 L.Ed. 937. States, under this philosophy, cannot act in conflict with 'deeply rooted feelings of the community,' Haley v. State of Ohio, 332 U.S. 596, 604, 68 S.Ct. 302, 306, 92 L.Ed. 224 (separate opinion), or with 'fundamental notions of fairness and justice,' id., 607, 68 S.Ct. 307. See also, e.g. Wolf v. People of State of Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 ('rights * * * basic to our free society'); Hebert v. State of Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270 ('fundamental principles of liberty and justice'); Adkins v. Children's Hospital, 261 U.S. 525, 561, 43 S.Ct. 394, 402, 67 L.Ed. 785 ('arbitrary restraint of * * * liberties'); Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595 ('denial of fundamental fairness, shocking to the universal sense of justice'); Poe v. Ullman, 367 U.S. 497, 539, 81 S.Ct. 1752, (dissenting opinion) ('intolerable and unjustfiable'). Perhaps the clearest, frankest and briefest explanation of how this due process approach works is the statement in another case handed down today that this Court is to invoke the Due Process Clause to strike down state procedures or laws which it can 'not tolerate.' Linkletter v. Walker, 381 U.S. 618, at 631, 85 S.Ct. 1731, at 1739.
5
See Hand, The Bill of Rights (1958) 70: '(J)udges are seldom content merely to annul the particular solution before them; they do not, indeed they may not, say that taking all things into consideration, the legislators' solution is too strong for the judicial stomach. On the contrary they wrap up their veto in a protective veil of adjectives such as 'arbitrary,' 'artificial,' 'normal,' 'reasonable,' 'inherent,' 'fundamental,' or 'essential,' whose office usually, though quite innocently, is to disguise what they are doing and impute to it a derivation far more impressive than their personal preferences, which are all that in fact lie behind the decision.' See also Rochin v. People of California, 342 U.S. 165, 174, 72 S.Ct. 205, 210 (concurring opinion). But see Linkletter v. Walker, supra, n. 4, 381 U.S. 631, 85 S.Ct., at 1739.
6
This Court held in Marbury v. Madison, 1 Cranch 137, that this Court has power to invalidate laws on the ground that they exceed
the constitutional power of Congress or violate some specific prohibition of the Constitution. See also Fletcher v. Peck, 6 Cranch 87, 3 L.Ed. 162. But the Constitutional Convention did on at least two occasions reject proposals which would have given the federal judiciary a part in recommending laws or in vetoing as bad or unwise the legislation passed by the Congress. Edmund Randolph of Virginia proposed that the President
'* * * and a convenient number of the National Judiciary, ought to compose a council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by (original wording illegible) of the members of each branch.' 1 The Records of the Federal Convention of 1787 (Farrand ed.1911) 21.
In support of a plan of this kind James Wilson of Pennsylvania argued that:
'* * * It had been said that the Judges, as expositors of the Laws would have an opportunity of defending their constitutional rights. There was weight in this observation; but this power of the Judges did not go far enough. Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power, and they will have an opportunity of taking notice of these characters of a law, and of counteracting, by the weight of their opinions the improper views of the Legislature.' 2 id., at 73.
Nathaniel Gorham of Massachusetts 'did not see the advantage of employing the Judges in this way. As Judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures.' Ibid.
Elbridge Gerry of Massachusetts likewise opposed the proposal for a council of revision:
'* * * He relied for his part on the Representatives of the people as the guardians of their Rights & interests. It (the proposal) was
making the Expositors of the Laws, the Legislators which ought never to be done.' Id., at 75.
And at another point:
'Mr. Gerry doubts whether the Judiciary ought to form a part of it (the proposed council of revision), as they will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality * * *. It was quite foreign from the nature of ye. office to make them judges of the policy of public measures.' 1 Id., at 97—98.
Madison supported the proposal on the ground that 'a Check (on the legislature) is necessary.' Id., at 108. John Dickinson of Delaware opposed it on the ground that 'the Judges must interpret the Laws they ought not to be legislators.' Ibid. The proposal for a council of revision was defeated.
The following proposal was also advanced:
'To assist the President in conducting the Public affairs there shall be a Council of State composed of the following officers—1. The Chief Justice of the Supreme Court, who shall from time to time recommend such alterations of and additions to the laws of the U.S. as may in his opinion be necessary to the due administration of Justice, and such as may promote useful learning and inculcate sound morality throughout the Union * * *.' 2 id., at 342. This proposal too was rejected.
7
In Meyer, in the very same sentence quoted in part by my Brethren in which he asserted that the Due Process Clause gave an abstract and inviolable right 'to marry, establish a home and bring up children,' Mr. Justice McReynolds asserted also that the Due Process Clause prevented States from interfering with 'the right of the individual to contract.' 262 U.S., at 399, 43 S.Ct., at 626.
8
Compare Poe v. Ullman, 367 U.S., at 543—544, 81 S.Ct. at 1776, 1777, 6 L.Ed.2d 989 (Harlan, J., dissenting).
9
The Court has also said that in view of the Fourteenth Amendment's major purpose of eliminating state-enforced racial discrimination, this Court will scrutinize carefully any law embodying a racial classification to make sure that it does not deny equal protection of the laws. See McLaughlin v. State of Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222.
10
None of the other cases decided in the past 25 years which Brothers WHITE and GOLDBERG cite can justly be read as holding that judges have power to use a natural law due process formula to strike down all state laws which they think are unwise, dangerous, or irrational. Prince v. Com. of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645, upheld a state law forbidding minors from selling publications on the streets. Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204, recognized the power of Congress to restrict travel outside the country so long as it accorded persons the procedural safeguards of due process and did not violate any other specific constitutional provision. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, held simply that a State could not, consistently with due process, refuse a lawyer a license to practice law on the basis of a finding that he was morally unfit when there was no evidence in the record, 353 U.S., at 246—247, 77 S.Ct. at 760, to support such a finding. Compare Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, in which the Court relied in part on Schware. See also Konigsberg v. State Bar, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810. And Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, merely recognized what had been the understanding from the beginning of the country, an understanding shared by many of the draftsmen of the Fourteenth Amendment, that the whole Bill of Rights, including the Due Process Clause of the Fifth Amendment, was a guarantee that all persons would receive equal treatment under the law. Compare Chambers v. State of Florida, 309 U.S. 227, 240—241, 60 S.Ct. 472, 478—479, 84 L.Ed. 716. With one exception, the other modern cases relied on by my Brethren were decided either solely under the Equal Protection Clause of the Fourteenth Amendment or under the First Amendment, made applicable to the States by the Fourteenth, some of the latter group involving the right of association which this Court has held to be a part of the rights of speech, press and assembly guaranteed by the First Amendment. As for Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 I am compelled to say that if that decision was written or intended to bring about the abrupt and drastic reversal in the course of constitutional adjudication which is now attributed to it, the change was certainly made in a very quiet and unprovocative manner, without any attempt to justify it.
11
Compare Adkins v. Children's Hospital, 261 U.S. 525, 568, 43 S.Ct. 394, 405 (Holmes, J., dissenting):
'The earlier decisions upon the same words (the Due Process Clause) in the Fourteenth Amendment began within our memory and went no farther than an unpretentious assertion of the liberty to follow the ordinary callings. Later that innocuous generality was expanded into the dogma, Liberty of Contract. Contract is not specially mentioned in the text that we have to construe. It is merely an example of doing what you want to do, embodied in the word liberty. But pretty much all law consists in forbidding men to do some things that they want to do, and contract is no more exempt from law than other acts.'
12
See Patterson, The Forgotten Ninth Amendment (1955). Mr. Patterson urges that the Ninth Amendment be used to protect unspecified 'natural and inalienable rights.' P. 4. The Introduction by Roscoe Pound states that 'there is a marked revival of natural law ideas throughout the world. Interest in the Ninth Amendment is a symptom of that revival.' P. iii.
In Redlich, Are There 'Certain Rights * * * Retained by the People'?, 37 N.Y.U.L.Rev. 787, Professor Redlich, in advocating reliance on the Ninth and Tenth Amendments to invalidate the Connecticut law before us, frankly states:
'But for one who feels that the marriage relationship should be beyond the reach of a state law forbidding the use of contraceptives, the birth control case poses a troublesome and challenging problem of constitutional interpretation. He may find himself saying, 'The law is unconstitutional—but why?' There are two possible paths to travel in finding the answer. One is to revert to a frankly flexible due process concept even on matters that do not involve specific constitutional prohibitions. The other is to attempt to evolve a new constitutional framework within which to meet this and similar problems which are likely to arise.' Id., at 798.
13
Of course one cannot be oblivious to the fact that Mr. Gallup has already published the results of a poll which he says show that 46% of the people in this country believe schools should teach about birth control. Washington Post, May 21, 1965, p. 2, col. 1. I can hardly believe, however, that Brother Goldberg would view 46% of the persons polled as so overwhelming a proportion that this Court may now rely on it to declare that the Connecticut law infringes 'fundamental' rights, and overrule the long-standing view of the people of Connecticut expressed through their elected representatives.
14
U.S.Const. Amend. IX, provides:
'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'
15
1 Annals of Congress 439. See also II Story, Commentaries on the Constitution of the United States (5th ed. 1891): 'This clause was manifestly introduced to prevent any perverse or ingenious misapplication of the well-known maxim, that an affirmation in particular cases implies a negation in all others; and, e converso, that a negation in particular cases implies an affirmation in all others. The maxim, rightly understood, is perfectly sound and safe; but it has often been strangely forced from its natural meaning into the support of the most dangerous political heresies.' Id., at 651 (footnote omitted).
16
Justice Holmes in one of his last dissents, written in reply to Mr. Justice McReynolds' opinion for the Court in Baldwin v. State of Missouri, 281 U.S. 586, 50 S.Ct. 436, 439, 74 L.Ed. 1056, solemnly warned against a due process formula apparently approved by my concurring Brethren today. He said:
'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 and 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. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words 'due process of law,' if taken in their literal meaning have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still was ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass.' 281 U.S., at 595. See 2 Holmes-Pollock Lettes (Howe ed. 1941) 267—268.
17
E.g., in Day-Brite Lighting, Inc. v. State of Missouri, 342 U.S. 421, 423, 72 S.Ct. 405, 407, 96 L.Ed. 469, this Court held that 'Our recent decisions make plain that we do not sit as a super-legislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare.'
Compare Gardner v. Com. of Massachusetts, 305 U.S. 559, 59 S.Ct. 90, 83 L.Ed. 353, which the Court today apparently overrules, which held that a challenge under the Federal Constitution to a state law forbidding the sale or furnishing of contraceptives did not raise a substantial federal question.
18
Brother HARLAN, who has consistently stated his belief in the power of courts to strike down laws which they consider arbitrary or unreasonable, see e.g., Poe v. Ullman, 367 U.S. 497, 539—555, 81 S.Ct. 1752, 1774, 1783 (dissenting opinion), did not join the Court's opinion in Ferguson v. Skrupa.
19
Justice Holmes, dissenting in Tyson, said:
'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.' 273 U.S., at 446, 47 S.Ct. at 433.
20
Compare Nicchia v. People of State of New York, 254 U.S. 228, 231, 41 S.Ct. 103, 104, 65 L.Ed. 235, upholding a New York dog-licensing statute on the ground that it did not 'deprive dog owners of liberty without due process of law.' And as I said concurring in Rochin v. People of State of California, 342 U.S. 165, 175, 72 S.Ct. 205, 211, 96 L.Ed. 183, 'I believe that faithful adherence to the specific guarantees in the Bill of Rights insures a more permanent protection of individual liberty than that which can be afforded by the nebulous standards' urged by my concurring Brethren today.
21
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and similar cases applying specific Bill of Rights provisions to the States do not in my view stand for the proposition that this Court can rely on its own concept of 'ordered liberty' or 'shocking the conscience' or natural law to decide what laws it will permit state legislatures to enact. Gideon in applying to state prosecutions the Sixth Amendment's guarantee of right to counsel followed Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, which had held that specific provisions of the Bill of Rights, rather than the Bill of Rights as a whole, would be selectively applied to the States. While expressing my own belief (not shared by MR. JUSTICE STEWART) that all the provisions of the Bill of Rights were made applicable to the States by the Fourteenth Amendment, in my dissent in Adamson v. People of State of California, 332 U.S. 46, 89, 67 S.Ct. 1672, 1695, 91 L.Ed. 1903, I said: 'If the choice must be between the selective process of the Palko decision applying some of the Bill of Rights to the States, or the Twining rule applying none of them, I would choose the Palko selective process.'
Gideon and similar cases merely followed the Palko rule, which in Adamson I agreed to follow if necessary to make Bill of Rights safeguards applicable to the States. See also Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.
22
Hand, The Bill of Rights (1958) 70. See note 5, supra. See generally id., at 35—45.
23
Id., at 73. While Judge Hand condemned as unjustified the invalidation of state laws under the natural law due process formula, see id., at 35—45, he also expressed the view that this Court in a number of cases had gone too far in holding legislation to be in violation of specific guarantees of the Bill of Rights. Although I agree with his criticism of use of the due process formula, I do not agree with all the views he expressed about construing the specific guarantees of the Bill of Rights.
1
The Amendments in question were, as everyone knows, originally adopted as limitations upon the power of the newly created Federal Government, not as limitations upon the powers of the individual States. But the Court has held that many of the provisions of the first eight amendments are fully embraced by the Fourteenth Amendment as limitations upon state action, and some members of the Court have held the view that the adoption of the Fourteenth Amendment made every provision of the first eight amendments fully applicable against the States. See Adamson v. People of State of California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1684 (dissenting opinion of Mr. Justice Black).
2
U.S.Constitution, Amendment I. To be sure, the injunction contained in the Connecticut statute coincides with the doctrine of certain religious faiths. But if that were enough to invalidate a law under the provisions of the First Amendment relating to religion, then most criminal laws would be invalidated. See, e.g., the Ten Commandments. The Bible, Exodus 20:2—17 (King James).
3
U.S.Constitution, Amendment I. If all the appellants had done was to advise people that they thought the use of contraceptives was desirable, or even to counsel their use, the appellants would, of course, have a substantial First Amendment claim. But their activities went far beyond mere advocacy. They prescribed specific contraceptive devices and furnished patients with the prescribed contraceptive materials.
4
U.S.Constitution, Amendment III.
5
U.S.Constitution, Amendment IV.
6
U.S.Constitution, Amendment V.
7
Cases like Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231, and Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480, relied upon in the concurring opinions today. dealt with true First Amendment rights of association and are wholly inapposite here. See also, e.g., NAACP v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697. Our decision in McLaughlin v. State of Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222, is equally far afield. That case held invalid under the Equal Protection Clause a state criminal law which discriminated against Negroes.
The Court does not say how far the new constitutional right of privacy announced today extends. See, e.g., Mueller, Legal Regulation of Sexual Conduct, at 127; Ploscowe, Sex and the Law, at 189. I suppose, however, that even after today a State can constitutionally still punish at least some offenses which are not committed in public.
8
See Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506. The Connecticut House of Representatives recently passed a bill (House Bill No. 2462) repealing the birth control law. The State Senate has apparently not yet acted on the measure, and today is relieved of that responsibility by the Court. New Haven Journal-Courier, Wed., May 19, 1965, p. 1, col. 4, and p. 13, col. 7.
| 45
|
381 U.S. 437
85 S.Ct. 1707
14 L.Ed.2d 484
UNITED STATES, Petitioner,v.Archie BROWN.
No. 399.
Argued March 29, 1965.
Decided June 7, 1965.
Archibald Cox, Sol. Gen., for petitioner.
Richard Gladstein, San Francisco, Cal., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
In this case we review for the first time a conviction under § 504 of the Labor-Management Reporting and Disclosure Act of 1959, which makes it a crime for a member of the Communist Party to serve as an officer or (except in clerical or custodial positions) as an employee of a labor union.1 Section 504, the purpose of which is to protect the national economy by minimizing the danger of political strikes,2 was enacted to replace § 9(h) of the National Labor Relations Act, as amended by the Taft-Hartley Act, which conditioned a union's access to the National Labor Relations Board upon the filing of affidavits by all of the union's officers attesting that they were not members of or affiliated with the Communist Party.3
2
Respondent has been a working longshoreman on the San Francisco docks, and an open and avowed Communist, for more than a quarter of a century. He was elected to the Executive Board of Local 10 of the International Longshoremen's and Warehousemen's Union for consecutive one-year terms in 1959, 1960, and 1961. On May 24, 1961, respondent was charged in a one-count indictment returned in the Northern District of California with 'knowingly and wilfully serv(ing) as a member of an executive board of a labor organization * * * while a member of the Communist Party, in wilful violation of Title 29, United States Code, Section 504.' It was neither charged nor proven that respondent at any time advocated or suggested illegal activity by the union, or proposed a political strike.4 The jury found respondent guilty, and he was sentenced to six months' imprisonment. The Court of Appeals for the Ninth Circuit, sitting en banc, reversed and remanded with instructions to set aside the conviction and dismiss the indictment, holding that § 504 violates the First and Fifth Amendments to the Constitution. 334 F.2d 488. We granted certiorari, 379 U.S. 899, 85 S.Ct. 187, 13 L.Ed.2d 174.
3
Respondent urges—in addition to the grounds relied on by the court below—that the statute under which he was convicted is a bill of attainder, and therefore violates Art. I, § 9, of the Constitution.5 We agree that § 504 is void as a bill of attainder and affirm the decision of the Court of Appeals on that basis. We therefore find it unnecessary to consider the First and Fifth Amendment arguments.
I.
4
The provisions outlawing bills of attainder were adopted by the Constitutional Convention unanimously, and without debate.6
5
'No Bill of Attainder or ex post facto Law shall be passed (by the Congress).' Art. I, § 9, cl. 3.
6
'No State shall * * * pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts * * *.' Art. I, § 10.
7
A logical starting place for an inquiry into the meaning of the prohibition is its historical background. The bill of attainder, a parliamentary act sentencing to death one or more specific persons, was a device often resorted to in sixteenth, seventeenth and eighteenth century England for dealing with persons who had attempted, or threatened to attempt, to overthrow the government.7 In addition to the death sentence, attainder generally carried with it a 'corruption of blood,' which meant that the attainted party's heirs could not inherit his property.8 The 'bill of pains and penalties' was identical to the bill of attainder, except that it prescribed a penalty short of death,9 e.g., banishment,10 deprivation of the right to vote,11 or exclusion of the designated party's sons from Parliament.12 Most bills of attainder and bills of pains and penalties named the parties to whom they were to apply; a few, however, simply described them.13 While some left the designated parties a way of escaping the penalty, others did not.14 The use of bills of attainder and bills of pains and penalties was not limited to England. During the American Revolution, the legislatures of all thirteen States passed statutes directed against the Tories; among these statutes were a large number of bills of attainder and bills of pains and penalties.15
8
While history thus provides some guidelines, the wide variation in form, purpose and effect of ante-Constitution bills of attainder indicates that the proper scope of the Bill of Attainder Clause, and its relevance to contemporary problems, must ultimately be sought by attempting to discern the reasons for its inclusion in the Constitution, and the evils it was designed to eliminate. The best available evidence, the writings of the architects of our constitutional system, indicates that the Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply—trial by legislature.
9
The Constitution divides the National Government into three branches—Legislative, Executive and Judicial. This 'separation of powers' was obviously not instituted with the idea that it would promote governmental efficiency. It was, on the contrary, looked to as a bulwark against tyranny. For if governmental power is fractionalized, if a given policy can be implemented only by a combination of legislative enactment, judicial application, and executive implementation, no man or group of men will be able to impose its unchecked will. James Madison wrote:
10
'The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.'16
11
The doctrine of separated powers is implemented by a number of constitutional provisions, some of which entrust certain jobs exclusively to certain branches, while others say that a given task is not to be performed by a given branch. For example, Article III's grant of 'the judicial Power of the United States' to federal courts has been interpreted both as a grant of exclusive authority over certain areas. Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60, and as a limitation upon the judiciary, a declaration that certain tasks are not to be performed by courts, e.g., Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246. Compare Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153.
12
The authors of the Federalist Papers took the position that although under some systems of government (most notably the one from which the United States had just broken), the Executive Department is the branch most likely to forget the bounds of its authority, 'in a representative republic * * * where the legislative power is exercised by an assembly * * * which is sufficiently numerous to feel all the passions which actuate a multitude; yet not so numerous as to be incapable of pursuing the objects of its passions * * *,' barriers had to be erected to ensure that the legislature would not overstep the bounds of its authority and perform the functions of the other departments.17 The Bill of Attainder Clause was regarded as such a barrier. Alexander Hamilton wrote:
13
'Nothing is more common than for a free people, in times of heat and violence, to gratify momentary passions, by letting into the government principles and precedents which afterwards prove fatal to themselves. Of this kind is the doctrine of disqualification, disfranchisement, and banishment by acts of the legislature. The dangerous consequences of this power are manifest. If the legislature can disfranchise any number of citizens at pleasure by general descriptions, it may soon confine all the votes to a small number of partisans, and establish an aristocracy or an oligarchy; if it may banish at discretion all those whom particular circumstances render obnoxious, without hearing or trial, no man can be safe, nor know when he may be the innocent victim of a prevailing faction. The name of liberty applied to such a government, would be a mockery of common sense.'18
14
Thus the Bill of Attainder Clause not only was intended as one implementation of the general principle of fractionalized power, but also reflected the Framers' belief that the Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness, of, and levying appropriate punishment upon, specific persons.
15
'Every one must concede that a legislative body, from its numbers and organization, and from the very intimate dependence of its members upon the people, which renders them liable to be peculiarly susceptible to popular clamor, is not properly constituted to try with coolness, caution, and impartiality a criminal charge, especially in those cases in which the popular feeling is strongly excited,—the very class of cases most likely to be prosecuted by this mode.'19
16
By banning bills of attainder, the Framers of the Constitution sought to guard against such dangers by limiting legislatures to the task of rule-making. 'It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments.' Fletcher v. Peck, 6 Cranch 87, 136, 3 L.Ed. 162.20
II.
17
It is in this spirit that the Bill of Attainder Clause was consistently interpreted by this Court—until the decision in American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925, which we shall consider hereafter. In 1810, Chief Justice Marshall, speaking for the Court in Fletcher v. Peck, 6 Cranch 87, 138, 3 L.Ed. 162, stated that '(a) bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.' This means, of course, that what were known at common law as bills of pains and penalties are outlawed by the Bill of Attainder Clause. The Court's pronouncement therefore served notice that the Bill of Attainder Clause was not to be given a narrow historical reading (which would exclude bills of pains and penalties), but was instead to be read in light of the evil the Framers had sought to bar: legislative punishment, of any form or severity, of specifically designated persons or groups. See also Ogden v. Saunders, 12 Wheat. 213, 286, 6 L.Ed. 606.
18
The approach which Chief Justice Marshall had suggested was followed in the twin post-Civil War cases of Cummings v. State of Missouri, 4 Wall. 277, 18 L.Ed. 356, and Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366. Cummings involved the constitutionality of amendments to the Missouri Constitution of 1865 which provided that no one could engage in a number of specified professions (Cummings was a priest) unless he first swore that he had taken no part in the rebellion against the Union. At issue in Garland was a federal statute which required attorneys to take a similar oath before they could practice in federal courts. This Court struck down both provisions as bills of attainder on the ground that they were legislative acts inflicting punishment on a specific group: clergymen and lawyers who had taken part in the rebellion and therefore could not truthfully take the oath. In reaching its result, the Court emphatically rejected the argument that the constitutional prohibition outlawed only a certain class of legislatively imposed penalties:
19
'The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact. Disqualification from office may be punishment, as in cases of conviction upon impeachment. Disqualification from the pursuits of a lawful avocation, or from positions of trust, or from the privilege of appearing in the courts, or acting as an executor, administrator, or guardian, may also, and often has been, imposed as punishment.' 4 Wall., at 320.
20
The next extended discussion of the Bill of Attainder Clause21 came in 1946, in United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252, where the Court invalidated § 304 of the Urgent Deficiency Appropriation Act, 1943, 57 Stat. 431, 450, which prohibited payment of further salary to three named federal employees,22 as a bill of attainder.
21
'(L)egislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution. * * * This permanent proscription from any opportunity to serve the Government is punishment, and of a most severe type. * * * No one would think that Congress could have passed a valid law, stating that after investigation it had found Lovett, Dodd, and Watson 'guilty' of the crime of engaging in 'subversive activities,' defined that term for the first time, and sentenced them to perpetual exclusion from any government employment. Section 304, while it does not use that language, accomplishes that result.' Id., at 315—316, 66 S.Ct., at 1079.23
III.
22
Under the line of cases just outlined, § 504 of the Labor-Management Reporting and Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under the Commerce Clause to enact legislation designed to keep from positions affecting interstate commerce persons who may use such positions to bring about political strikes. In § 504, however, Congress has exceeded the authority granted it by the Constitution. The statute does not set forth a generally applicable rule decreeing that any person who commits certain acts or possesses certain characteristics (acts and characteristics which, in Congress' view, make them likely to initiate political strikes) shall not hold union office, and leave to courts and juries the job of deciding what persons have committed the specified acts or possess the specified characteristics. Instead, it designates in no uncertain terms the persons who possess the feared characteristics and therefore cannot hold union office without incurring criminal liability members of the Communist Party.24
23
Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625, lends support to our conclusion. That case involved an appeal from an order by the Control Board ordering the Communist Party to register as a 'Communist-action organization,' under the Subversive Activities Control Act of 1950, 64 Stat. 987, 50 U.S.C. § 781 et seq. (1958 ed.). The definition of 'Communist-action organization' which the Board is to apply is set forth in § 3 of the Act:
24
'(A)ny organization in the United States * * * which (i) is substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement referred to in section 2 of this title, and (ii) operates primarily to advance the objectives of such world Communist movement * * *.' 64 Stat. 989, 50 U.S.C. § 782 (1958 ed.).
25
A majority of the Court rejected the argument that the Act was a bill of attainder, reasoning that § 3 does not specify the persons or groups upon which the deprivations set forth in the Act are to be imposed, but instead sets forth a general definition. Although the Board had determined in 1953 that the Communist Party was a 'Communist-action organization,' the Court found the statutory definition not to be so narrow as to insure that the Party would always come within it:
26
'In this proceeding the Board has found, and the Court of Appeals has sustained its conclusion, that the Communist Party, by virtue of the activities in which it now engages, comes within the terms of the Act. If the Party should at any time choose to abandon these activities, after it is once registered pursuant to § 7, the Act provides adequate means of relief.' 367 U.S., at 87, 81 S.Ct., at 1405.
27
The entire Court did not share the view of the majority that § 3's definition constituted rule-making rather than specification.25 See also Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 723, 71 S.Ct. 909, 914, 95 L.Ed. 1317. However, language incorporated in the majority opinion indicates that there was agreement on one point: by focusing upon 'the crucial constitutional significance of what Congress did when it rejected the approach of outlawing the Party by name and accepted instead a statutory program regulating not enumerated organizations but designated activities,' 367 U.S., at 84—85, 81 S.Ct., at 1404, the majority clearly implied that if the Act had applied to the Communist Party by name, it would have been a bill of attainder:
28
'The Act is not a bill of attainder. It attaches not to specified organizations but to described activities in which an organization may or may not engage. * * * The Subversive Activities Control Act * * * requires the registration only of organizations which, after the date of the Act, are found to be under the direction, domination, or control of certain foreign powers and to operate primarily to advance certain objectives. This finding must be made after full administrative hearing, subject to judicial review which opens the record for the reviewing court's determination whether the administrative findings as to fact are supported by the preponderance of the evidence.' Id., at 86—87, 81 S.Ct., at 1405.26
29
In this case no disagreement over whether the statute in question designates a particular organization can arise, for § 504 in terms inflicts its disqualification upon members of the Communist Party. The moment § 504 was enacted, respondent was given the choice of declining a leadership position in his union or incurring criminal liability.
30
The Solicitor General points out that in Board of Governors of Federal Reserve System v. Agnew, 329 U.S. 441, 67 S.Ct. 411, 91 L.Ed. 408, this Court applied § 32 of the Banking Act of 1933, which provides:
31
'No officer, director, or employee of any corporation or unincorporated association, no partner or employee of any partnership, and no individual, primarily engaged in the issue, flotation, underwriting, public sale, or distribution, at wholesale or retail, or through syndicate participation, of stocks, bonds, or other similar securities, shall serve the same time as an officer, director, or employee of any member bank except in limited classes of cases in which the Board of Governors of the Federal Reserve System may allow such service by general regulations when in the judgment of the said Board it would not unduly influence the investment policies of such member bank or the advice it gives its customers regarding investments.'27
32
He suggests that for purposes of the Bill of Attainder Clause, such conflict-of-interest laws28 are not meaningfully distinguishable from the statute before us. We find this argument without merit. First, we note that § 504, unlike § 32 of the Banking Act, inflicts its deprivation upon the members of a political group thought to present a threat to the national security. As we noted above, such groups were the targets of the overwhelming majority of English and early American bills of attainder. Second, § 32 incorporates no judgment censuring or condemning any man or group of men. In enacting it, Congress relied upon its general knowledge of human psychology, and concluded that the concurrent holding of the two designated positions would present a temptation to any man—not just certain men or members of a certain political party. Thus insofar as § 32 incorporates a condemnation, it condemns all men. Third, we cannot accept the suggestion that § 32 constitutes an exercise in specification rather than rule-making. It seems to us clear that § 32 establishes an objective standard of conduct. Congress determined that a person who both (a) held a position in a bank which could be used to influence the investment policies of the bank or its customers, and (b) was in a position to benefit financially from investment in the securities handled by a particular underwriting house, might well be tempted to 'use his influence in the bank to involve it or its customers in securities which his underwriting house has in its portfolio or has committed itself to take.' 329 U.S., at 447, 67 S.Ct., at 414. In designating bank officers, directors and employees as those persons in position (a), and officers, directors, partners and employees of underwriting houses as those persons in position (b), Congress merely expressed the characteristics it was trying to reach in an alternative, shorthand way.29 That Congress was legislating with respect to general characteristics rather than with respect to a specific group of men is well demonstrated by the fact that § 32 provides that the prescribed disqualification should not obtain whenever the Board of Governors determined that 'it would not unduly influence the investment policies of such member bank or the advice it gives its customers regarding investments'. We do not suggest that such an escape clause is essential to the constitutionality of § 32, but point to it only further to point up the infirmity of the suggestion that § 32, like § 504, incorporates an empirical judgment of, and inflicts its deprivation upon, a particular group of men.
33
It is argued, however, that in § 504 Congress did no more than it did in enacting § 32: it promulgated a general rule to the effect that persons possessing characteristics which make them likely to incite political strikes should not hold union office, and simply inserted in place of a list of those characteristics an alternative, shorthand criterion—membership in the Communist Party. Again, we cannot agree. The designation of Communists as those persons likely to cause political strikes is not the substitution of a semantically equivalent phrase; on the contrary, it rests, as the Court in Douds explicitly recognized, 339 U.S., at 389, 70 S.Ct., at 679, upon an empirical investigation by Congress of the acts, characteristics and propensities of Communist Party members. In a number of decisions, this Court has pointed out the fallacy of the suggestion that membership in the Communist Party, or any other political organization, can be regarded as an alternative, but equivalent, expression for a list of undesirable characteristics. For, as the Court noted in Schneiderman v. United States, 320 U.S. 118, 136, 63 S.Ct. 1333, 1342, 87 L.Ed. 1796, 'under our traditions beliefs are personal and not a matter of mere association, and * * * men in adhering to a political party or other organization notoriously do not subscribe unqualifiedly to all of its platforms or asserted principles.'30 Just last Term, in Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992, we held § 6 of the Subversive Activities Control Act to violate the Constitution because it 'too broadly and indiscriminately' restricted constitutionally protected freedoms. One of the factors which compelled us to reach this conclusion was that § 6 inflicted its deprivation upon all members of the Communist organizations without regard to whether there existed any demonstrable relationship between the characteristics of the person involved and the evil Congress sought to eliminate. Id., at 509—511, 84 S.Ct., at 1665—1666. These cases are relevant to the question before us. Even assuming that Congress had reason to conclude that some Communists would use union positions to bring about political strikes, 'it cannot automatically be inferred that all members shar(e) their evil purposes or participat(e) in their illegal conduct.' Schware v. Board of Bar Examiners of State of New Mexico, 353 U.S. 232, 246, 77 S.Ct. 752, 760, 1 L.Ed.2d 796. In utilizing the term 'members of the Communist Party' to designate those persons who are likely to incite political strikes, it plainly is not the case that Congress has merely substituted a convenient shorthand term for a list of the characteristics it was trying to reach.31
IV.
34
The Solicitor General argues that § 504 is not a bill of attainder because the prohibition it imposes does not constitute 'punishment.' In support of this conclusion, he urges that the statute was enacted for preventive rather than retributive reasons—that its aim is not to punish Communists for what they have done in the past, but rather to keep them from positions where they will in the future be able to bring about undesirable events. He relies on American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925, which upheld § 9(h) of the National Labor Relations Act, the predecessor of the statute presently before us. In Douds the Court distinguished Cummings, Garland and Lovett on the ground that in those cases
35
'the individuals involved were in fact being punished for past actions; whereas in this case they are subject to possible loss of position only because there is substantial ground for the congressional judgment that their beliefs and loyalties will be transformed into future conduct.' Id., at 413, 70 S.Ct. at 691.
36
This case is not necessarily controlled by Douds. For to prove its assertion that § 9(h) was preventive rather than retributive in purpose,32 the Court in Douds focused on the fact that members of the Communist Party could escape from the class of persons specified by Congress simply by resigning from the Party:
37
'Here the intention is to forestall future dangerous acts; there is no one who may not by a voluntary alteration of the loyalties which impel him to action, become eligible to sign the affidavit. We cannot conclude that this section is a bill of attainder.' Id., at 414, 70 S.Ct. at 692.
38
Section 504, unlike § 9(h), disqualifies from the holding of union office not only present members of the Communist Party, but also anyone who has within the past five years been a member of the Party. However, even if we make the assumption that the five-year provision was inserted not out of desire to visit retribution but purely out of a belief that failure to include it would lead to pro forma resignations from the Party which would not decrease the threat of political strikes, it still clearly appears that § 504 inflicts 'punishment' within the meaning of the Bill of Attainder Clause. It would be archaic to limit the definition of 'punishment' to 'retribution.' Punishment serves several purposes; retributive, rehabilitative, deterrent—and preventive. One of the reasons society imprisons those convicted of crimes is to keep them from inflicting future harm, but that does not make imprisonment any the less punishment.
39
Historical considerations by no means compel restriction of the bill of attainder ban to instances of retribution. A number of English bills of attainder were enacted for preventive purposes that is, the legislature made a judgment, undoubtedly based largely on past acts and associations (as § 504 is)33 that a given person or group was likely to cause trouble (usually, overthrow the government) and therefore inflicted deprivations upon that person or group in order to keep it from bringing about the feared event.34 It is also clear that many of the early American bills attainting the Tories were passed in order to impede their effectively resisting the Revolution.
40
'In the progress of the conflict, and particularly in its earliest periods, attainder and confiscation had been resorted to generally, throughout the continent, as a means of war. But it is a fact important to the history of the revolting colonies, that the acts prescribing penalties, usually offered to the persons against whom they were directed the option of avoiding them, by acknowledging their allegiance to the existing governments.
41
'It was a preventive, not a vindictive policy. In the same humane spirit, as the contest approached its close, and the necessity of these severities diminished, many of the states passed laws offering pardons to those who had been disfranchised, and restoring them to the enjoyment of their property * * *.'35
42
Thus Justice Iredell was on solid historical ground when he observed, in Calder v. Bull, 3 Dall. 386, 399—400, 1 L.Ed. 648, that 'attainders, on the principle of retaliation and proscription, have marked all the vicissitudes of party triumph.' (Emphasis supplied.)
43
We think that the Court in Douds misread United States v. Lovett when it suggested, 339 U.S., at 413, 70 S.Ct., at 691, that that case could be distinguished on the ground that the sanction there imposed was levied for purely retributive reasons. In Lovett the Court, after reviewing the legislative history of § 304 of the Urgent Deficiency Appropriation Act, 328 U.S., at 308—313, 66 S.Ct., at 1075—1077, concluded that the statute was the product of a congressional drive to oust from government persons whose (congressionally determined) 'subversive' tendencies made their continued employment dangerous to the national welfare: 'the purpose of all who sponsored Section 304 * * * clearly was to 'purge' the then existing and all future lists of Government employees of those whom Congress deemed guilty of 'subversive activities' and therefore 'unfit' to hold a federal job.' Id., at 314, 66 S.Ct., at 1078. Similarly, the purpose of the statute before us is to purge the governing boards of labor unions of those whom Congress regards as guilty of subversive acts and associations and therefore unfit to fill positions which might affect interstate commerce.36
44
The Solicitor General urges us to distinguish Lovett on the ground that the statute struck down there 'singled out three identified individuals.' It is of course true that § 504 does not contain the words 'Archie Brown,' and that it inflicts its deprivation upon more than three people. However, the decisions of this Court, as well as the historical background of the Bill of Attainder Clause, make it crystal clear that these are distinctions without a difference. It was not uncommon for English acts of attainder to inflict their deprivations upon relatively large groups of people,37 sometimes by description rather than nane.38 Moreover, the statutes voided in Cummings and Garland were of this nature.39 We cannot agree that the fact that § 504 inflicts its deprivation upon the membership of the Communist Party rather than upon a list of named individuals takes it out of the category of bills of attainder.
45
We do not hold today that Congress cannot weed dangerous persons out of the labor movement, any more than the Court held in Lovett that subversives must be permitted to hold sensitive government positions. Rather, we make again the point made in Lovett: that Congress must accomplish such results by rules of general applicability. It cannot specify the people upon whom the sanction it prescribes is to be levied. Under our Constitution, Congress possesses full legislative authority, but the task of adjudication must be left to other tribunals.
46
This Court is always reluctant to declare that an Act of Congress violates the Constitution, but in this case we have no alternative. As Alexander Hamilton observed:
47
'By a limited constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.'40
48
The judgment of the Court of Appeals is affirmed.
49
Affirmed.
50
Mr. Justice WHITE, with whom Mr. Justice CLARK, Mr. Justice HARLAN, and Mr. Justice STEWART join, dissenting.
51
'A bill of attainder is a legislative act which inflicts punishment without a judicial trial.' Cummings v. State of Missouri, 4 Wall. 277, 323, 18 L.Ed. 356. When an enactment is challenged as an attainder, the central inquiry must be whether the disability imposed by the act is 'punishment' (i.e., is directed at an individual or a group of individuals) or is 'regulation' (i.e., is directed at controlling future conduct). Flemming v. Nestor, 363 U.S. 603, at 613—614, 80 S.Ct. 1367, at 1374—1375, 4 L.Ed.2d 1435; accord, Trop v. Dulles, 356 U.S. 86, 95 96, 78 S.Ct. 590, 595—596, 2 L.Ed.2d 630 (Warren, C.J., announcing judgment). Whether a punitive purpose would be inferred has depended in past cases on a number of circumstances, including the nature of the disability, whether it was traditionally regarded as punishment, whether it is rationally connected to a permissible legislative objective, as well as the specificity of the legislature's designation of the persons to be affected. See generally Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168—169, 83 S.Ct. 554, 567—568, 9 L.Ed.2d 644.
52
In this case, however, the Court discards this meticulous multifold analysis that has been deemed necessary in the past. Instead the Court places the burden of separating attainders from permissible regulation on an examination of the legislative findings implied by the nature of the class designated. The Bill of Attainder Clause, the Court says, was intended to implement the separation of powers by confining the legislature to rule-making and preventing legislative invasion of a function left exclusively to the courts—fact-finding connected with applications of a general rule to individuals or groups. Section 504 of the Labor-Management Reporting and Disclosure Act is therefore a bill of attainder because in pursuit of its purpose of preventing political strikes, it has specified the persons—Communist Party members—who are to be disqualified from holding union office, rather than excluding all persons who might engage in the undesirable conduct. The vice in s 504 is that it does not set forth a rule generally applicable to 'any person who commits certain acts or possesses certain characteristics (acts and characteristics which, in Congress' view, make them likely to initiate political strikes)' but has instead designated 'the persons who possess the feared characteristics,' members of the Communist Party. Ante, at 450.
53
At this point the Court implies that legislation is sufficiently general if it specifies a characteristic that makes it likely that individuals falling within the group designated will engage in conduct Congress may prohibit. But the Court then goes on to reject the argument that Communist Party membership is in itself a characteristic raising such a likelihood. The Court declares that '(e)ven assuming that Congress had reason to conclude that some Communists would use union positions to bring about political strikes, '* * * it cannot automatically be inferred that all members shar(e) their evil purposes or participat(e) in their illegal conduct." Ante, at 456. (Emphasis added.) This sudden shift in analysis—from likelihood to certainty—must mean that the Bill of Attainder Clause proscribes legislative action with respect to any group smaller than the total class possessing the characteristic upon which legislative power is premised whenever the legislation is based only on a finding about the average characteristics of the subgroup. The legislature may focus on a particular group or class only when the group designation is a 'shorthand phrase' for the feared characteristic—i.e., when it is common knowledge that all, not just some, members of the group possess the feared characteristic and thus such legislative designation would require no legislative fact-finding about individuals.1
54
In the Court's view, therefore, § 504 is too narrow in specifying the particular class; but it is also too broad in treating all members of the class alike. On both counts underinclusiveness and overinclusiveness—s 504 is invalid as a bill of attainder because Congress has engaged in forbidden fact-finding about individuals and groups and has thus strayed into the area reserved to the judiciary by the Constitution.
I.
55
It is not difficult to find some of the cases and statutes which the necessary implications of the Court's approach will overrule or invalidate.
56
American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925, which upheld the predecessor statute to § 504 is obviously In that case the Court accepted the congressional findings about the Communist Party and about the propensity of Party members 'to subordinate legitimate trade union objectives to obstructive strikes when dictated by Party leaders, often in support of the policies of a foreign government.' 339 U.S. at 388, 70 S.Ct., at 678. Moreover, Congress was permitted to infer from a person's 'political affiliations and beliefs' that such a person would be likely to instigate political strikes. 339 U.S., at 391 392, 70 S.Ct., at 680. Like § 504, the statute there under consideration did not cover all persons who might be likely to call political strikes. Nevertheless, legislative findings that some Communists would engage in illegal activities were sufficient to sustain the exercise of legislative power. The Bill of Attainder Clause now forbids Congress to do precisely what was validated in Douds.
57
Similarly invalidated are statutes denying positions of public importance to groups of persons identified by their business affiliations, commonly known as conflict-of-interest statutes. In the Douds case the Court found in such statutes support for its conclusion that Congress could rationally draw inferences about probable conduct on the basis of political affiliations and beliefs, which it considered comparable to business affiliations. The majority in the case now before us likewise recognizes the pertinency of such statutes and, in its discussion of Board of Governors of Federal Reserve System v. Agnew, 329 U.S. 441, 67 S.Ct. 411, 91 L.Ed. 408, strenuously—and unsuccessfully—attempts to distinguish them.
58
The statute involved in Agnew, § 32 of the Banking Act of 1933, 48 Stat. 194, as amended, 12 U.S.C. § 78 (1964 ed.), forbade any partner or employee of a firm primarily engaged in underwriting securities from being a director of a national bank. The Court expressly recognized that the statute was directed to the 'probability or likelihood' that a bank director who was also a partner or employee of an underwriting firm 'may use his influence in the bank to involve it or its customers in securities which his underwriting house has in its portfolio or has committed itself to take.' 329 U.S., at 447, 67 S.Ct., at 414. (Emphasis added.) And, as we noted in Douds, 339 U.S., at 392, 70 S.Ct., at 681, '(t)here was no showing, nor was one required, that all employees of underwriting firms would engage in such conduct.' See also Agnew, 329 U.S., at 449, 67 S.Ct., at 415.
59
In terms of the Court's analysis of the Bill of Attainder Clause, no meaningful distinction may be drawn between § 32 of the Banking Act and § 504. Both sections disqualify a specifically described group, officers and employees of underwriting firms in the one case and members of the Communist Party in the other. Both sections may be said to be underinclusive: others besides underwriters may have business interests conflicting with the duties of a bank director and others than Communists may call political strikes. Equally, both sections may be deemed overinclusive: neither section finds that all members of the group affected would violate their obligations to the office from which they are disqualified; some members would and perhaps others would not. Both sections are based on a probability or likelihood that this would occur. Both sections leave to the courts the task of determining whether particular persons are members of the designated groups and occupy the specified positions.
60
In attempting to distinguish the two sections, the Court states that in enacting § 32 of the Banking Act Congress made no judgment or condemnation of any specific group of persons. Instead, the Court reasons, 'Congress relied upon its general knowledge of human psychology, and concluded that the concurrent holding of the two designated positions would present a temptation to any man—not just certain men or members of a certain political party.' Ante, at 454. But § 32 disqualifies only partners and employees of underwriting firms, not other businessmen with conflicting interests. And § 504 applies to any man who occupies the two positions of labor union leader and member of the Communist Party. If based upon 'its general knowledge of human psychology' Congress may make findings about a group including members and employees of underwriting firms which disqualify such persons from a certain office, why may not Congress on a similar basis make such a finding about members of the Communist Party? 'Because of their business connections, carrying as they do certain loyalties, interests and disciplines,' § 32 disqualifies members and employees of underwriting firms as posing 'a continuing threat of participation in the harmful activities * * *.' Douds, 339 U.S., at 392, 70 S.Ct., at 681. The same might be said about § 504, as was said about its predecessor: 'Political affiliations of the kind here involved, no less than business affiliations, provide rational ground for the legislative judgment that those persons proscribed by § 9(h) would be subject to 'tempting opportunities' to commit acts deemed harmful to the national economy. In this respect, § 9(h) is not unlike a host of other statutes which prohibit specified groups of persons from holding positions of power and public interest because, in the legislative judgment, they threaten to abuse the trust that is a necessary concomitant of the power of office.' Id., at 392, 70 S.Ct., at 681.
61
Conflict-of-interest statutes are an accepted type of legislation.2 Indeed, our Constitution contains a conflict-of-interest provision in Art. I, § 6, cl. 2, which prohibits any Congressman from simultaneously holding office under the United States. If the Court would save the conflict-of-interest statutes, which apparently it would, it is difficult to understand why § 504 is stricken down as a bill of attainder.
62
Other legislative enactments relevant here are those statutes disqualifying felons from occupying certain positions. The leading case is Hawker v. People of State of New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002, which upheld a provision prohibiting convicted felons from practicing medicine against a claim that, as applied to one convicted before its enactment, it was an ex post facto law. The Court noted that a legislature may establish qualifications for the practice of medicine, and character may be such a qualification. Conviction of a felony, the Court reasoned, may be evidence of character:
63
'It is not open to doubt that the commission of crime * * * has some relation to the question of character. It is not, as a rule, the good people who commit crime. When the legislature declares that whoever has violated the criminal laws of the state shall be deemed lacking in good moral character, it is not laying down an arbitrary or fanciful rule, one having no relation to the subject-matter, but is only appealing to a well-recognized fact of human experience. * * *
64
'It is no answer to say that this test of character is not in all cases absolutely certain, and that sometimes it works harshly. Doubtless, one who has violated the criminal law may thereafter reform, and become in fact possessed of a good moral character. But the legislature has power in cases of this kind to make a rule of universal application, and no inquiry is permissible back of the rule to ascertain whether the fact of which the rule is made the absolute test does or does not exist.' 170 U.S., at 196—197, 18 S.Ct., at 576.
65
Accord, De Veau v. Braisted, 363 U.S. 144, 159—160, 80 S.Ct. 1146, 1154, 4 L.Ed.2d 1109 (Frankfurter, J., announcing judgment) (bill of attainder and ex post facto challenges).
66
Like § 504, the legislation challenged in Hawker was both overinclusive and underinclusive. Felons were not the only persons who might possess character defects making them unsuitable practitioners of medicine; and, as the Court expressly noted, not all felons would lack good moral character. Nevertheless, the legislature was permitted to disqualify all members of the class, rather than being required to delegate to the courts the responsibility of determining the character of each individual based on all relevant facts, including the prior conviction. The legislative findings that sustained the legislation attacked in Hawker were simply that a substantial number of felons would be likely to abuse the practice of medicine because of their bad character. It is just such findings respecting the average propensities of a given class of persons to engage in particular conduct that the Court will not now permit under the Bill of Attainder Clause. Though the Court makes no attempt to distinguish the Hawker-type laws it apparently would save them, see Trop v. Dulles, 356 U.S. 86, 96—97, 78 S.Ct. 590, 595—596, 2 L.Ed.2d 630 (Warren, C.J., announcing judgment), and with them the provision of the statute now before the Court which disqualifies felons from holding union office.3
67
The Court apparently agrees that the Subversive Activities Control Act was not a bill of attainder with regard to the Communist Party because, as the Court pointed out in Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625, the finding that the Party was a Communist-action organization was not made by the legislature but was made administratively, after a trial-type hearing and subject to judicial review. But this apparently does not settle whether the statute is a bill of attainder with respect to Party members; for under today's approach, a finding about the Party and about some of its members does not cure the vice of overinclusiveness. The Subversive Activities Control Act attaches certain disqualifications to each Party member following the administrative-judicial finding that the Party is a Communist-action organization. Among other things, each Party member is disqualified from holding union office, almost the same disqualification as is involved here. Subversive Activities Control Act of 1950, § 5(a)(1)(E), added by the Act of Aug. 24, 1954, § 6, 68 Stat. 777, 50 U.S.C. § 784(a)(1)(E) (1958 ed.). I do not see how this and the other consequences attached to Party membership in that Act could survive examination under the principles announced today.
68
On the other hand, if the statutes involved in Hawker and Agnew are not bills of attainder, how can the Subversive Activities Control Act be an attainder with respect to members of the Communist Party? In the Communist Party case, the Board found that the '(Party's) principal leaders and a substantial number of its members are subject to and recognize the disciplinary power of the Soviet Union and its representatives. This evidences domination and control over (the Party) by the Soviet Union, and a purpose to advance the objectives of the world Communist movement.' Modified Report of the Board, December 18, 1956, in Record in that case, p. 2538. That finding was expressly sustained by this Court. 367 U.S. 1, 57, 81 S.Ct. 1357, 1390. Certainly, if Hawker and Agnew are to be followed at all, these nonlegislative findings establish a sufficient probability or likelihood with regard to Party members—a sufficient temptation to Party members who are also union officers—to permit the legislature to disqualify Party members from union office as it did in the Subversive Activities Control Act.
69
And if the disqualification of Party members in the Subversive Activities Control Act is not a bill of attainder, neither is § 504. If it is § 504's specific designation of the Communist Party and its members which concerns the Court—if the Court would have the same concern if the statute in Agnew had disqualified the members of a particular underwriting firm—it seems to me that at this point this vice is no vice at all; for the Congress has provided in another statute, the Subversive Activities Control Act, for an adjudication about Communist-action organizations, the nature of the Party has now been adjudicated and an adequate probability about the future conduct of its members established to justify the disqualification which Congress has imposed. Compare Schware v. Board of Bar Examiners of State of New Mexico, 353 U.S. 232, 244, 77 S.Ct. 752, 759, 1 L.Ed.2d 796 (absent findings respecting nature of Communist Party at time of bar applicant's membership, membership in Party 15 years prior to application provides no rational ground for disqualification).
70
This, of course, is not the path the Court follows. Section 504 is said to impose punishment on specific individuals because it has disqualified all Communist Party members without providing for a judicial determination as to each member that he will call a political strike. A likelihood of doing so based on membership is not enough. By the same token, a statute disqualifying Communists (or authorizing the Executive Branch to do so) from holding sensitive positions in the Government would be automatically infirm, as would a requirement that employees of the Central Intelligence Agency or the National Security Agency disclaim membership in the Communist Party, unless in each case it is proved by evidence other than membership in the Communist Party, the nature of which has already been adjudicated, that the individual would commit acts of disloyalty or subordinate his official undertakings to the interests of the Party.
71
But how does one prove that a person would be disloyal? The Communist Party's illegal purpose and its domination by a foreign power have already been adjudicated, both administratively and judicially. If this does not in itself provide a sufficient probability with respect to the individual who persists in remaining a member of the Party, or if a probability is in any event insufficient, what evidence with regard to the individual will be sufficient to disqualify him? If he must be apprehended in the act of calling one political strike or in one act of disloyalty before steps can be taken to exclude him from office, there is little or nothing left of the preventive or prophylactic function of § 504 or of the statutes such as the Court had before it in Hawker and Agnew.
72
Examples of statutes that will now be suspect because of the Court's opinion but were, until today, unanimously accepted as legitimate exercises of legislative power could easily be multiplied. Such a catalogue in itself would lead one to inquire whether the Court's reasoning does not contain some flaw that explains such perverse results.
II.
73
One might well begin by challenging the Court's premise that the Bill of Attainder Clause was intended to provide a general dividing line between legislative and judicial functions and thereby to operate as the chief means of implementing the separation of powers. While it must be conceded that our system of government is based on the separation of powers and that the prohibition on bills of attainder is a judicially enforceable restraint on legislative power and therefore constitutes one among the many mechanisms implementing the separation of powers, that conclusion is the most that can be gleaned from the authorities cited by the Court. Some, like the statement quoted from Chief Justice Marshall, Fletcher v. Peck, 6 Cranch 87, 136, 3 L.Ed. 162, reflect views concerning 'whether the nature of society and of government does not prescribe some limits to the legislative power,' id., at 135, rather than an analysis of the bill-of-attainder provision. None assigns a preeminent position to that provision as compared with other restraints on the legislature.
74
On the other hand, there are substantial reasons for concluding that the Bill of Attainder Clause may not be regarded as enshrining any general rule distinguishing between the legislative and judicial functions. Congress may pass legislation affecting specific persons in the form of private bills. It may also punish persons who commit contempt before it. So too, one may note that if Art. I, § 9, cl. 3, immortalizes some notion of the separation of powers at the federal level, then Art. I, § 10, necessarily does the same for the States. But it has long been recognized by this Court that '(w)hether the legislative, executive, and judicial powers of a state shall be kept altogether distinct and separate, or whether persons or collections of persons belonging to one department may, in respect to some matters, exert powers which, strictly speaking, pertain to another department of government, is for the determination of the state.' Dreyer v. People of State of Illinois, 187 U.S. 71, 84, 23 S.Ct. 28, 32, 47 L.Ed. 79; accord, e.g., Reetz v. People of State of Michigan, 188 U.S. 505, 507, 23 S.Ct. 390, 391, 47 L.Ed. 563; Carfer v. Caldwell, 200 U.S. 293, 297, 26 S.Ct. 264, 265, 50 L.Ed. 488; Sweezy v. State of New Hampshire, 354 U.S. 234, 255, 77 S.Ct. 1203, 1214, 1 L.Ed.2d 1311 (Warren, C.J., announcing judgment), 256—257, 77 S.Ct. 1214—1215 (Frankfurter, J., concurring), 268, 77 S.Ct. 1221 (Clark, J., dissenting).
III.
75
The basic flaw in the Court's reasoning, however, is its too narrow view of the legislative process. The Court is concerned to separate the legislative and judicial functions by ensuring that the legislature does not infringe the judicial function of applying general rules to specific circumstances. Congress is held to have violated the Bill of Attainder Clause here because, on the one hand, § 504 does not encompass the whole class of persons having characteristics that would make them likely to call political strikes and, on the other hand, § 504 does single out a particular group, members of the Communist Party, not all of whom possess such characteristics. Because of this combination of underinclusiveness and overinclusiveness the Court concludes that Communist Party members were singled out for punishment, thus rejecting the Government's contention that § 504 has solely a regulatory aim.
76
The Court's conclusion that a statute which is both underinclusive and overinclusive must be deemed to have been adopted with a punitive purpose assumes that legislatures normally deal with broad categories and attack all of an evil at a time. Or if partial measures are undertaken, a legislature singles out a particular group for regulation only because the group label is a 'shorthand phrase' for traits that are characteristic of the broader evil. But this Court has long recognized in equal protection cases that a legislature may prefer to deal with only part of an evil. See, e.g., Railway Express Agency, Inc. v. People of State of New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533; Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086; People of State of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 49 S.Ct. 61, 73 L.Ed. 184; Patsone v. Commonwealth of Pennsylvania, 232 U.S. 138, 34 S.Ct. 281, 58 L.Ed. 539. And it is equally true that a group may be singled out for regulation without any punitive purpose even when not all members of the group would be likely to engage in the feared conduct. '(I) f the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out.' Patsone v. Commonwealth of Pennsylvania, 232 U.S., at 144, 34 S.Ct., at 282. (Emphasis added.) That is, the focus of legislative attention may be the substantially greater likelihood that some members of the group would engage in the feared conduct compared to the likelihood that members of other groups would do so. This is true because legislators seldom deal with abstractions but with concrete situations and the regulation of specific abuses. Thus many regulatory measures are enacted after investigation into particular incidents or the practices of particular groups and after findings by the legislature that the practices disclosed are inimical to the public interest and should be prevented in the future. Not surprisingly, the resulting legislation may reflect in its specificity the specificity of the preceding legislative inquiry. See United States v. Boston & M.R. Co., 380 U.S. 157, 161—162, 85 S.Ct. 868, 870—871, 13 L.Ed.2d 728. But the fact that it does should not be taken, in itself, to be conclusive that the legislature's purpose is punitive. Admittedly the degree of specificity is a relevant factor—as when individuals are singled out by name—but because in many instances specificity of the degree here held impermissible may be wholly consistent with a regulatory, rather than a punitive purpose, the Court's per se approach cuts too broadly and invalidates legitimate legislative activity.
IV.
77
Putting aside the Court's per se approach based on the nature of the classification specified by the legislation, we must still test § 504 against the traditional definition of the bill of attainder as legislative punishment of particular individuals. In my view, § 504 does not impose punishment and is not a bill of attainder.
78
We have said that 'only the clearest proof could suffice' to establish that Congress' purpose was punitive rather than regulatory. Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 1376, 4 L.Ed.2d 1435. A punitive purpose has been found when it could be said that a statute passed amid the fierce passions aroused by the Civil War bore no rational connection to any permissible legislative purpose. Cummings v. State of Missouri, 4 Wall. 277, 319, 322, 18 L.Ed. 356; see Dent v. State of West Virginia, 129 U.S. 114, 128, 9 S.Ct. 231, 235, 32 L.Ed. 623; Hawker v. People of State of New York, 170 U.S. 189, 198, 18 S.Ct. 573, 577, 42 L.Ed. 1002. The imposition of a particularly harsh deprivation without any discernible legitimate legislative purpose has similarly been characterized as penal. Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (Warren, C.J., announcing judgment). Similarly a punitive purpose has been found when such a purpose clearly appeared in the legislative history. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169, 83 S.Ct. 554, 568, 9 L.Ed.2d 644; United States v. Lovett, 328 U.S. 303, 308—314, 66 S.Ct. 1073, 1075—1078, 90 L.Ed. 1252. In other cases the analysis is more difficult. We summarized the relevant considerations in Kennedy v. Mendoza-Martinez, supra:
79
'Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions.' 372 U.S., at 168—169, 83 S.Ct., at 567, 568.
80
An application of these criteria to § 504 compels the conclusion that it is regulatory rather than punitive.
81
Congress' concern with the possibility of political strikes is not simply a fictional concern advanced to mask a punitive purpose. Congress has sought to forestall political strikes since 1947, when it adopted § 9(h) of the National Labor Relations Act, which was sustained as a reasonable regulation in American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925. Section 504 was adopted as a fairer and more effective method of dealing with the same evil. H.R.Rep. No. 741, 86th Cong., 1st Sess. (1959), p. 33, U.S.Code Cong. & Admin.News 1959, p. 2424; 1 Leg.Hist. LMRDA 791. Section 9(h) had proved ineffective because many Communists would take the prescribed oath, which meant the only sanction available was a perjury prosecution that presented serious difficulties of proof. See Hearings before the House Committee on Un-American Activities, Communist Infiltration of Vital Industries and Current Communist Techniques in the Chicago, Illinois, Area, 86th Cong., 1st Sess. (1959), pp. 519, 576; Hearings before a Subcommittee of the Senate Committee on Labor and Public Welfare, Communist Domination of Unions and National Security, 82d Cong., 2d Sess. (1952), p. 54. Moreover, the oath requirement created inequities both because the disqualification imposed was visited on the whole union membership and because the taking of an oath was exacted of all union leaders, many of whom resented the requirement. See American Communications Ass'n v. Douds, 339 U.S., at 434—435, 70 S.Ct., at 701—702 (Jackson, J., concurring and dissenting); S.Rep. No. 187, 86th Cong., 1st Sess. (1959), pp. 7, 9, U.S.Code Cong. & Admin.News 1959, p. 2318; 1 Leg.Hist. LMRDA 403, 405. It was obviously reasonable for Congress to substitute § 504 for § 9(h), and no punitive purpose may be inferred from such congressional action.
82
Nor can it be denied that § 504 is reasonably related to a permissible legislative objective. In American Communications Ass'n v. Douds, we held that 'Congress could rationally find that the Communist Party is not like other political parties in its utilization of positions of union leadership as means by which to being about strikes * * *' 339 U.S., at 391, 70 S.Ct., at 680, and therefore Congress could rationally infer that members of the Communist Party were likely to call political strikes. See also Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1, 93—94, 112, 81 S.Ct. 1357, 1408—1409, 1419, 6 L.Ed.2d 625. In 1956 the Subversive Activities Control Board found, after a trial-type hearing, that the Party's principal leaders and a substantial number of its members recognize the disciplinary power of the Soviet Union. Without question the findings previously made by Congress and the Subversive Activities Control Board afforded a rational basis in 1959 for Congress to conclude that Communists were likely to call political strikes, and sufficiently more likely than others to do so that special measures could appropriately be enacted to deal with the particular threat posed.
83
In view of Congress' demonstrated concern in preventing future conduct—political strikes—and the reasonableness of the means adopted to that end, I cannot conclude that § 504 had a punitive purpose or that it constitutes a bill of attainder. I intimate no opinion on the issues that the Court does not reach.
1
73 Stat. 536, 29 U.S.C. § 504 (1958 ed., Supp. IV). The section, which took effect on September 14, 1959, provides, in pertinent part:
'(a) No person who is or has been a member of the Communist Party * * * shall serve—
'(1) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization. * * *
'during or for five years after the termination of his membership in the Communist Party. * * *
'(b) Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned for not more than one year, or both.'
2
In American Communications Ass'n v. Douds, 339 U.S. 382, 388, 70 S.Ct. 674, 678, 94 L.Ed. 925, this Court found that 'the purpose of § 9(h) of the (National Labor Relations) Act (was) to remove * * * the so-called 'political strike." Section 504 was designed to accomplish the same purpose as § 9(h), but in a more direct and effective way. H.R.Rep. No. 741, 86th Cong., 1st Sess., p. 33; H.R.Rep. No. 1147, 86th Cong., 1st Sess., p. 36, U.S.Code Cong. & Admin.News 1959, p. 2318.
3
61 Stat. 146, amending the National Labor Relations Act of 1935, 49 Stat. 449. Section 9(h) provided:
'No investigation shall be made by the Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, no petition under section 9(e)(1) shall be entertained, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b) of section 10, unless there is on file with the Board an affidavit executed contemporaneously or within the preceding twelve-month period by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate or constituent unit that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods. The provisions of section 35 A of the Criminal Code shall be applicable in respect to such affidavits.'
Section 9(h) was repealed by § 201(d) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 525.
4
Evidence that the executive board had never called a strike was, upon the motion of the Government, stricken from the record, and a defense offer to prove that the union had not been involved in a strike since 1948 was rejected by the court.
5
Respondent first raised the bill of attainder argument in his motion to dismiss the indictment.
6
Madison, Debates in the Federal Convention of 1787, p. 449 (Hunt and Scott ed. 1920).
7
E.g., 3 Jac. 1, c. 2; 10 & 11 Will. 3, c. 13; 13 Will. 3, c. 3; 9 Geo. 1, c. 15.
8
3 Coke, First Institute (on Littleton), p. 565 (Thomas ed. 1818); Chafee, Three Human Rights in the Constitution of 1787, p. 96 (1956). Cf. U.S.Const., Art. III, § 3, cl. 2.
9
II Wooddeson, A Systematical View of the Laws of England, p. 638, (1792); II Story, Commentaries on the Constitution of the United States, p. 210 (4th ed. 1873); see, e.g., 13 Car. 2, Stat. I, c. 15; 9 Geo. 1, c. 15.
10
II Wooddeson, A Systematical View of the Laws of England, p. 638 (1792); see, e.g., 19 Car. 2, c. 10; Proceedings Against Hugh and Hugh Le Despencer, 1 State Trials 23 (1320).
11
E.g., 11 Geo. 3, c. 55.
12
21 Rich. 2, c. 6.
13
E.g., 26 Hen. 8, c. 25 (priv.), 3 Statutes of the Realm, p. 529; 8 Will. 3, c. 5.
14
See note 32, infra.
15
Van Tyne, The Loyalists in the American Revolution, apps. B & C (1902); Thompson, Anti-Loyalist Legislation During the American Revolution, 3 Ill.L.Rev. 81, 147; Reppy, The Spectre of Attainder in New York, 23 St. John's L.Rev. 1. See Respublica v. Gordon, 1 Dall. 233, 1 L.Ed. 115; Cooper v. Telfair, 4 Dall. 14, 1 L.Ed. 721.
16
The Federalist, No. 47, pp. 373—374 (Hamilton ed. 1880).
17
The Federalist, No. 48, pp. 383—384 (Hamilton ed. 1880) (Madison); see generally The Federalist, Nos. 47 (Madison), 48 (Madison), 49 (Hamilton), 51 (Hamilton) and 78 (Hamilton).
18
III (John C.) Hamilton, History of the Republic of the United States, p. 34 (1859), quoting Alexander Hamilton. James Madison expressed similar sentiments:
'Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the state constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favour of personal security and private rights * * *. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and with indignation, that sudden changes, and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators; and snares to the more industrious and less informed part of the community.' The Federalist, No. 44, p. 351 (Hamilton ed. 1880).
19
1 Cooley, Constitutional Limitations, pp. 536—537 (8th ed. 1927). To the same effect, see Calder v. Bull, 3 Dall. 386, 389, 1 L.Ed.2d 648; United States v. Lovett, 328 U.S. 303, 317 318, 66 S.Ct. 1073, 1079—1080, 90 L.Ed. 1252; II Story, Commentaries on the Constitution of the United States, p. 210 (4th ed. 1873); III Hamilton, History of the Republic of the United States, p. 31 (1859); Pound, Justice According to Law II, 14 Col.L.Rev. 1, 7—12. Macaulay's account of the attainder of Sir John Fenwick is particularly vivid:
'Some hundreds of gentlemen, every one of whom had much more than half made up his mind before the case was open, performed the office both of judge and jury. They were not restrained, as a judge is restrained, by the sense of responsibility * * *. They were not selected, as a jury is selected, in a manner which enables a culprit to exclude his personal and political enemies. The arbiters of the prisoner's fate came in and went out as they chose. They heard a fragment here and thereof what was said against him, and a fragment here and there of what was said in his favor. During the progress of the bill they were exposed to every species of influence. One member might be threatened by the electors of his borough with the loss of his seat * * *. In the debates arts were practised and passions excited which are unknown to well-constituted tribunals, but from which no great popular assembly divided into parties ever was or ever will be free.' IX Macaulay, History of England, p. 207 (1900).
20
The same thought is reflected in the writings of Thomas Jefferson: '173 despots would surely be as oppressive as one. * * * (L)ittle will it avail us that they are chosen by ourselves. * * * (T)he government we fought for (is) one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason that convention, which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. * * * If * * * the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can it be effectual; because in that case they may put their proceedings into the form of an act of assembly, which will render them obligatory on the other branches. They have accordingly in many instances, decided rights which should have been left to judiciary controversy * * *.' Jefferson, Notes on the State of Virginia, pp. 157—158 (Ford ed. 1894). (Emphasis supplied.)
21
In 1872, in Pierce v. Carskadon, 16 Wall. 234, 21 L.Ed. 276, the Court voided as a bill of attainder a West Virginia statute conditioning access to the courts upon the taking of an oath similar to those involved in Cummings and Garland. In Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623, this Court upheld a West Virginia statute requiring that physicians obtain a license in order to practice. Appellant argued, inter alia, that the statute was a bill of attainder because the granting of a license was conditioned upon graduating from medical school, practicing for 10 years, or passing a special examination. The Court rejected the argument on the ground that the statute set forth general qualifications applicable to all persons who wanted to practice medicine, id., at 124, 9 S.Ct., at 234, and did not single out a specific person or group for deprivation. See also Drehman v. Stifle, 8 Wall. 595, 19 L.Ed. 508.
22
Section 304 provided:
'No part of any appropriation, allocation, or fund (1) which is made available under or pursuant to this Act, or (2) which is now, or which is hereafter made, available under or pursuant to any other Act, to any department, agency, or instrumentality of the United States, shall be used, after November 15, 1943, to pay any part of the salary, or other compensation for the personal services, of Goodwin B. Watson, William E. Dodd, Junior, and Robert Morss Lovett, unless prior to such date such person has been appointed by the President, by and with the advice and consent of the Senate: Provided, That this section shall not operate to deprive any such person of payment for leaves of absence or salary, or of any refund or reimbursement, which have accrued prior to November 15, 1943 * * *.'
23
Although it may be that underinclusiveness is a characteristic of most bills of attainder, we doubt that it is a necessary feature. We think it clear from the Lovett opinion that § 304 would have been voided even if it could have been demonstrated that no one other than Lovett, Watson and Dodd possessed the characteristics which Congress was trying to reach. The vice of attainder is that the legislature has decided for itself that certain persons possess certain characteristics and are therefore deserving of sanction, not that it has failed to sanction others similarly situated.
24
We of course take no position on whether or not members of the Communist Party are in fact likely to incite political strikes. The point we make is rather that the Constitution forbids Congress from making such determinations.
25
See 367 U.S., at 146, 81 S.Ct., at 1436 (Black, J., dissenting).
26
'It need hardly be said that it is upon the particular evidence in a particular record that a particular defendant must be judged, and not upon the evidence in some other record or upon what may be supposed to be the tenets of the Communist Party.' Noto v. United States, 367 U.S. 290, 299, 81 S.Ct. 1517, 1521, 6 L.Ed.2d 836.
It is argued that § 504 is not a bill of attainder because prior to its enactment there had been an administrative adjudication (by the Subversive Activities Control Board) of 'the nature of the Party.' Compare Hawker v. People of State of New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002; DeVeau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1155, 4 L.Ed.2d 1109. Even leaving aside the fact that the legislative history of § 504, see note 2, supra, indicates that Congress was acting in reliance on the findings it had made in 1947 rather than on those made by the Board in 1953, we think that this argument misses the point of the Court's opinion in the Communist Party case, where the Court stressed that the Subversive Activities Control Act did not name the Communist Party but rather set forth a broad definition, which would permit the Party to escape the prescribed deprivations in the event its character changed.
27
48 Stat. 194, as amended, 49 Stat. 709, 12 U.S.C. § 78 (1964 ed.).
28
A similar example is furnished by provisions forbidding state officers or employees from concurrently holding certain other types of positions, such as positions with the Federal Government. See, e.g., Cal.Const., Art. IV, § 20; cf. N.Y.Const., Art. III, § 7; U.S.Const., Art. I, § 6, cl. 2.
29
The command of the Bill of Attainder Clause—that a legislature can provide that persons possessing certain characteristics must abstain from certain activities, but must leave to other tribunals the task of deciding who possesses those characteristics—does not mean that a legislature cannot use a shorthand phrase to summarize the characteristics with which it is concerned. For example, a legislature might determine that persons afflicted with a certain disease which has as one of its symptoms a susceptibility to uncontrollable seizures should not be licensed to operate dangerous machinery. In enacting a statute to achieve this goal, the legislature could name the disease instead of listing the symptoms, for in doing so it would merely be substituting a shorthand phrase which conveys the same meaning.
30
To the same effect, see Noto v. United States, 367 U.S. 290, 299—300, 81 S.Ct. 1517, 1521—1522, 6 L.Ed.2d 836; Wieman v. Updegraff, 344 U.S. 183, 190, 73 S.Ct. 215, 218, 97 L.Ed. 216.
31
We rely on the 'overbroadness' cases only to buttress our conclusion that § 504 cannot be rationalized on the ground that membership in the Communist Party is merely an equivalent, shorthand way of expressing those characteristics which render likely the incitement of political strikes. We of course do not hold that overbroadness is a necessary characteristic of a bill of attainder.
32
The Court's opinion in Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1, 88, 81 S.Ct. 1357, 1406, 6 L.Ed.2d 625, also referred to the fact that the members of the class affected by the statute could extricate themselves from the class at will. However, whereas the factor of escapability was considered in Douds to be probative of whether or not the statute was punitive, in the Communist Party case it was considered only as one factor tending to show that the Act in question was not directed at a specific group of persons but rather set forth a generally applicable definition. See note 26, supra. We do not read either opinion to have set up inescapability as an absolute prerequisite to a finding of attainder. Such an absolute rule would have flown in the face of explicit precedent, Cummings v. State of Missouri, 4 Wall. 277, 324, 18 L.Ed. 356, as well as the historical background of the constitutional prohibition. A number of ante-Constitution bills of attainder inflicted their deprivations upon named or described persons or groups, but offered them the option of avoiding the deprivations, e.g., by swearing allegiance to the existing government. See, e.g., Del.Laws 1778, c. 29b; Mass. Acts of September 1778, c. 13; III Hamilton, History of the Republic of the United States, p. 25 (1859); see generally Note, 72 Yale L.J. 330, 339—340.
33
American Communications Ass'n v. Douds, 339 U.S. 382, 389, 70 S.Ct. 674, 679, 94 L.Ed. 925; see note 2, supra.
34
See Ex parte Law, 15 Fed.Cas. pp. 3, 9—10, 35 Ga. 285 (No. 8,126) (D.C.S.D.Ga. 1866). Professor Chafee has pointed out that even the death penalty was often inflicted largely for preventive purposes: 'There was no good middle ground between beheading and doing nothing. If the ousted adviser were left at liberty, he could readily turn his resentment into coercion or rebellion and make a magnificent comeback to the utter ruin of those who had driven him from his high place. Therefore, the usual object of Parliamentary proceedings against an important minister was to put him to death.' Chafee, Three Human Rights in the Constitution of 1787, pp. 103—104 (1956).
The preventive purpose of the 'Act for the Attainder of the pretended Prince of Wales of High Treason' of 1700, 13 Will. 3, c. 3, is demonstrated by the parliamentary declaration that anyone corresponding with the Prince or his followers would be subject to prosecution for treason. See also Chafee, supra, pp. 109—113 (impeachment and attainder of the Earl of Strafford), 115—118 (bill against the Earl of Clarendon).
35
III Hamilton, History of the Republic of the United States, p. 25 (1859); see, e.g., Mass. Acts of September 1778, c. 13 ('An Act to Prevent the Return of Tories'); cf. Md. Laws February 1777, c. 20 ('An Act to punish certain crimes and misdemeanors, and to prevent the growth of toryism'); see also II Story, Commentaries on the Constitution of the United States, p. 211, n. 1 (4th ed. 1873); authorities cited note 15, supra.
36
Nor do the deprivations imposed by the two statutes differ in any meaningful way. Section 304 cut off the salary of the specified individuals, thereby effectively barring them from government service, 328 U.S. at 316, 66 S.Ct., at 1079; § 504 provides that specified persons cannot serve as officers of, or engage in most kinds of employment with, labor unions. Compare Del.Laws 1778, c. 29b; Cummings v. State of Missouri, 4 Wall. 277, 317, 320, 18 L.Ed. 356; Ex parte Garland, 4 Wall. 333, 374, 18 L.Ed. 366.
37
E.g., 12 Car. 2, c. 30; 19 Geo. 2, c. 26; 11 Geo. 3, c. 55.
38
Note 13, supra.
39
See also Ex parte Law, 15 Fed.Cas. pp. 3, 8, 35 Ga. 285 (No. 8,126) (D.C.S.D.Ga.1866); United States v. Lovett, 328 U.S. 303, 327, 66 S.Ct. 1073, 1084, 90 L.Ed. 1252 (Frankfurter, J., concurring).
40
The Federalist, No. 78, pp. 576—577 (Hamilton ed. 1880).
1
An overbroadness challenge could also be made under the First Amendment on the ground that in § 504 Congress has too broadly and indiscriminately visited disabilities on a class defined in terms of associational ties. See Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992. But the Court expressly disavows decision of First Amendment claims, and I likewise put such questions aside.
2
See, e.g., § 10 of the Clayton Act, 38 Stat. 734, 15 U.S.C. § 20 (1964 ed.) (requiring competitive bidding for certain transactions between a common carrier and other corporations when there are common directors), United States v. Boston & M.R. Co., 380 U.S. 157, 85 S.Ct. 868, 13 L.Ed.2d 728; § 16(b) of the Securities Exchange Act of 1934, 48 Stat. 896, 15 U.S.C. § 78p(b) (1964 ed.) (providing that profits made by directors, officers, and principal shareholders through short-swing transactions in corporation stock shall inure to benefit of corporation), Blau v. Lehman, 368 U.S. 403, 411—413, 82 S.Ct. 451, 455—457, 7 L.Ed.2d 403 § 310(b) of the Trust Indenture Act of 1939, 53 Stat. 1157 (making certain conflicting interests grounds for disqualification of indenture trustees).
3
For a partial listing of similar statutes, see De Veau v. Braisted, 363 U.S. 144, 159, 80 S.Ct. 1146, 1154, 4 L.Ed.2d 1109 (Frankfurter, J., announcing judgment). De Veau v. Braisted itself sustained against a bill of attainder challenge, without dissent on this issue, a state statute disqualifying felons from holding office in waterfront labor unions.
| 23
|
381 U.S. 654
85 S.Ct. 1750
14 L.Ed.2d 623
George ANGELET, Petitioner,v.Edward M. FAY, Warden.
No. 578.
Argued March 11, 1965.
Decided June 7, 1965.
Leon B. Polsky, New York City, for petitioner.
Gray Thoron, Ithaca, N.Y., for respondent.
Michael Juviler, New York City, for National Dist. Attys' Ass'n, as amicus curiae.
Mr. Justice CLARK delivered the opinion of the Court.
1
This is a companion case to Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, decided this date. Petitioner was convicted in a New York State court in 1951 for possession of narcotics with intent to sell. On December 21, 1950, two detectives attached to the Narcotics Squad of the New York City Police Department entered petitioner's apartment by a door opened by a painter who was just leaving. They ignored the protest of petitioner and proceeded, without a warrant, to search the apartment. Upon entering, one of the officers called an agent of the Federal Bureau of Narcotics. After two federal agents arrived the local and federal officers made a thorough search of the apartment. One of the local officers found 54 cellophane envelopes, 106 empty capsules, a box of staples and a scale. A federal agent found four packages under a hat. Analysis revealed that three of the packets contained heroin and the other contained cocaine. These items were introduced in evidence at the state trial without objection of petitioner's counsel. Nor was objection made to the participation of the federal narcotics agents in the investigation. After conviction petitioner filed a notice of appeal to the Appellate Division but the appeal was dismissed in March of 1952.
2
In August 1961, after Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, was decided, petitioner resorted to state post-conviction remedies claiming that the evidence found in his apartment and introduced against him had been illegally seized and that his conviction had therefore been obtained in violation of the Fourth and Fourteenth Amendments. Upon seeking habeas corpus in the United States District Court on the same grounds his application was denied. The trial judge refused to apply Mapp retrospectively. The Court of Appeals sitting en banc affirmed by a divided vote. 333 F.2d 12. We granted certiorari, 379 U.S. 815, 85 S.Ct. 126, 13 L.Ed.2d 28 (1964), and set this case for argument with Linkletter, supra. That case answers petitioner's point as to the retrospective application of Mapp.
3
However, petitioner also contends that the participation of federal narcotics agents in the search and seizure requires reversal here, citing Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233 (1956). We cannot agree. That case invoked the supervisory power of a federal court over a federal law enforcement officer and we held that the latter might be enjoined from appearing in a state trial for the purpose of offering evidence previously seized by him illegally as a federal officer and so found by a federal court. But even if an exclusionary rule were fashioned to bar use of the federal agent's testimony in the absence of a federal court restraint, the petitioner would be entitled to no relief. Such an exclusionary rule would depend upon the reasons given in Mapp and under Linkletter, supra, would not have retrospective application.
4
Affirmed.
5
Mr. Justice BLACK and Mr. Justice DOUGLAS would reverse the judgment of the Court of Appeals for the reasons stated in Mr. Justice BLACK's dissenting opinion in Linkletter v. Walker, 381 U.S. 640, 85 S.Ct. 1743.
| 01
|
381 U.S. 657
85 S.Ct. 1585
14 L.Ed.2d 626
UNITED MINE WORKERS OF AMERICA, Petitioner,v.James M. PENNINGTON et al.
No. 48.
Argued Jan. 27, 1965.
Decided June 7, 1965.
[Syllabus from pages 657-658 intentionally omitted]
Harrison Combs, Washington, D.C., for petitioner.
John A. Rowntree, Knoxville, Tenn., for respondents.
Theodore J. St. Antoine, Washington, D.C., for American Federation of Labor and Congress of Industrial Organizations, as amicus curiae.
Mr. Justice WHITE delivered the opinion of the Court.
1
This action began as a suit by the trustees of the United Mine Workers of America Welfare and Retirement Fund against the respondents, individually and as owners of Phillips Brothers Coal Company, a partnership, seeking to recover some $55,000 in royalty payments alleged to be due and payable under the trust provisions of the National Bituminous Coal Wage Agreement of 1950, as amended, September 29, 1952, executed by Phillips and United Mine Workers of America on or about October 1, 1953, and reexecuted with amendments on or about September 8, 1955, and October 22, 1956. Phillips filed an answer and a cross claim against UMW, alleging in both that the trustees, the UMW and certain large coal operators had conspired to restrain and to monopolize interstate commerce in violation of §§ 1 and 2 of the Sherman Antitrust Act, as amended, 26 Stat. 209, 15 U.S.C. §§ 1, 2 (1958 ed.). Actual damages in the amount of $100,000 were claimed for the period beginning February 14, 1954, and ending December 31, 1958.1
2
The allegations of the cross claim were essentially as follows: Prior to the 1950 Wage Agreement between the operators and the union, severe controversy had existed in the industry, particularly over wages, the welfare fund and the union's efforts to control the working time of its members. Since 1950, however, relative peace has existed in the industry, all as the result of the 1950 Wage Agreement and its amendments and the additional understandings entered into between UMW and the large operators. Allegedly the parties considered overproduction to be the critical problem of the coal industry. The agreed solution was to be the elimination of the smaller companies, the larger companies thereby controlling the market. More specifically, the union abandoned its efforts to control the working time of the miners, agreed not to oppose the rapid mechanization of the mines which would substantially reduce mine employment, agreed to help finance such mechanization and agreed to impose the terms of the 1950 agreement on all operators without regard to their ability to pay. The benefit to the union was to be increased wages as productivity increased with mechanization, these increases to be demanded of the smaller companies whether mechanized or not. Royalty payments into the welfare fund were to be increased also, and the union was to have effective control over the fund's use. The union and large companies agreed upon other steps to exclude the marketing, production, and sale of nonunion coal. Thus the companies agreed not to lease coal lands to nonunion operators, and in 1958 agreed not to sell or buy coal from such companies. The companies and the union jointly and successfully approached the Secretary of Labor to obtain establishment under the Walsh-Healey Act, as amended, 49 Stat. 2036, 41 U.S.C. § 35 et seq. (1958 ed), of a minimum wage for employees of contractors selling coal to the TVA, such minimum wage being much higher than in other industries and making it difficult for small companies to compete in the TVA term contract market. At a later time, at a meeting attended by both union and company representatives, the TVA was urged to curtail its spot market purchases, a substantial portion of which were exempt from the Walsh-Healey order. Thereafter four of the larger companies waged a destructive and collusive price-cutting campaign in the TVA spot market for coal, two of the companies, West Kentucky Coal Co. and its subsidiary Nashville Coal Co., being those in which the union had large investments and over which it was in position to exercise control.
3
The complaint survived motions to dismiss and after a five-week trial before a jury, a verdict was returned in favor of Phillips and against the trustees and the union, the damages against the union being fixed in the amount of $90,000, to be trebled under 15 U.S.C. § 15 (1958 ed.). The trial court set aside the verdict against the trustees but overruled the union's motion for judgment notwithstanding the verdict or in the alternative for a new trial. The Court of Appeals affirmed. 325 F.2d 804. It ruled that the union was not exempt from liability under the Sherman Act on the facts of this case, considered the instructions adequate and found the evidence generally sufficient to support the verdict. We granted certiorari. 377 U.S. 929, 84 S.Ct. 1333, 12 L.Ed.2d 294. We reverse and remand the case for proceedings consistent with this opinion.
I.
4
We first consider UMW's contention that the trial court erred in denying its motion for a directed verdict and for judgment notwithstanding the verdict, since a determination in UMW's favor on this issue would finally resolve the controversy. The question presented by this phase of the case is whether in the circumstances of this case the union is exempt from liability under the antitrust laws. We think the answer is clearly in the negative and that the union's motions were correctly denied.
5
The antitrust laws do not bar the existence and operation of labor unions as such. Moreover, § 20 of the Clayton Act, 38 Stat. 738, and § 4 of the Norris-LaGuardia Act, 47 Stat. 70, permit a union, acting alone, to engage in the conduct therein specified without violating the Sherman Act. United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788; United States v. International Hod Carriers Council, 313 U.S. 539, 61 S.Ct. 839, 85 L.Ed. 1508, affirming per curiam, 37 F.Supp. 191 (D.C.N.D.Ill.1941); United States v. American Federation of Musicians, 318 U.S. 741, 63 S.Ct. 665, 87 L.Ed. 1120, affirming per curiam, 47 F.Supp. 304 (D.C.N.D.Ill.1942).
6
But neither § 20 nor § 4 expressly deals with arrangements or agreements between unions and employers. Neither section tells us whether any or all such arrangements or agreements are barred or permitted by the antitrust laws. Thus Hutcheson itself stated:
7
'So long as a union acts in its self-interest and does not combine with non-labor groups, the licit and the illicit under § 20 are not to be distinguished by any judgment regarding the wisdom or unwisdom, the rightness or wrongness, the selfishness or unselfishness of the end of which the particular union activities are the means.' 312 U.S., at 232, 61 S.Ct. at 466. (Emphasis added.)
8
And in Allen Bradley Co. v. Local Union No. 3, IBEW, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939, this Court made explicit what had been merely a qualifying expression in Hutcheson and held that 'when the unions participated with a combination of business men who had complete power to eliminate all competition among themselves and to prevent all competition from others, a situation was created not included with the exemptions of the Clayton and Norris-LaGuardia Acts.' Id., 325 U.S. at 809, 65 S.Ct. at 1540. See also United Brotherhood of Carpenters v. United States, 330 U.S. 395, 398—400, 67 S.Ct. 775, 778, 91 L.Ed. 973; United States v. Employing Plasterers Assn., 347 U.S. 186, 190, 74 S.Ct. 452, 454, 98 L.Ed. 618. Subsequent cases have applied the Allen Bradley doctrine to such combinations without regard to whether they found expression in a collective bargaining agreement, United Brotherhood of Carpenters v. United States, supra; see Local 24 of International Brotherhood of Teamsters, etc., v. Oliver, 358 U.S. 283, 296, 79 S.Ct. 297, 304, 3 L.Ed.2d 312, and even though the mechanism for effectuating the purpose of the combination was an agreement on wages, see Adams Dairy Co. v. St. Louis Dairy Co., 260 F.2d 46 (C.A.8th Cir. 1958), or on hours of work, Philadelphia Record Co. v. Manufacturing Photo-Engravers Assn., 155 F.2d 799 (C.A.3d Cir. 1946).
9
If the UMW in this case, in order to protect its wage scale by maintaining employer income, had presented a set of prices at which the mine operators would be required to sell their coal, the union and the employers who happened to agree could not successfully defend this contract provision if it were challenged under the antitrust laws by the United States or by some party injured by the arrangement. Cf. Allen Bradley Co. v. Local Union No. 3, IBEW, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939; United States v. Borden Co., 308 U.S. 188, 203—205, 60 S.Ct. 182, 190, 191, 84 L.Ed. 181; Lumber Prods. Assn. v. United States, 144 F.2d 546, 548 (C.A.9th Cir. 1944), aff'd on this issue sub nom. United Brotherhood of Carpenters v. United States, 330 U.S. 395, 398—400, 67 S.Ct. 775, 777, 778, 91 L.Ed. 973; Las Vegas Merchant Plumbers Assn. v. United States, 210 F.2d 732 (C.A.9th Cir. 1954), cert. denied, 348 U.S. 817, 75 S.Ct. 29, 99 L.Ed. 645; Local 175, IBEW v. United States, 219 F.2d 431 (C.A.6th Cir. 1955), cert. denied, 349 U.S. 917, 75 S.Ct. 606, 99 L.Ed. 1250. In such a case, the restraint on the product market is direct and immediate, is of the type characteristically deemed unreasonable under the Sherman Act and the union gets from the promise nothing more concrete than a hope for better wages to come.
10
Likewise, if as is alleged in this case, the union became a party to a collusive bidding arrangement designed to drive Phillips and others from the TVA spot market, we think any claim to exemption from antitrust liability would be frivolous at best. For this reason alone the motions of the unions were properly denied.
11
A major part of Phillips' case, however, was that the union entered into a conspiracy with the large operators to impose the agreed-upon wage and royalty scales upon the smaller, nonunion operators, regardless of their ability to pay and regardless of whether or not the union represented the employees of these companies, all for the purpose of eliminating them from the industry, limiting production and pre-empting the market for the large, unionized operators. The UMW urges that since such an agreement concerned wage standards, it is exempt from the antitrust laws.
12
It is true that wages lie at the very heart of those subject about which employers and unions must bargain and the law contemplates agreements on wages not only between individual employers and a union but agreements between the union and employers in a multi-employer bargaining unit. National Labor Relations Board v. Truck Drivers Union, 353 U.S. 87, 94—96, 77 S.Ct. 643, 646—647, 1 L.Ed.2d 676. The union benefit from the wage scale agreed upon is direct and concrete and the effect on the product market, though clearly present, results from the elimination of competition based on wages among the employers in the bargaining unit, which is not the kind of restraint Congress intended the Sherman Act to proscribe. Apex Hosiery Co. v. Leader, 310 U.S. 469, 503—504, 60 S.Ct. 982, 997, 84 L.Ed. 1311; see Adams Dairy Co. v. St. Louis Dairy Co., 260 F.2d 46 (C.A.8th Cir. 1958). We think it beyond question that a union may conclude a wage agreement with the multi-employer bargaining unit without violating the antitrust laws and that it may as a matter of its own policy, and not by agreement with all or part of the employers of that unit, seek the same wages from other employers.
13
This is not to say that an agreement resulting from union-employer negotiations is automatically exempt from Sherman Act scrutiny simply because the negotiations involve a compulsory subject of bargaining, regardless of the subject or the form and content of the agreement. Unquestionably the Board's demarcation of the bounds of the duty to bargain has great relevance to any consideration of the sweep of labor's antitrust immunity, for we are concerned here with harmonizing the Sherman Act with the national policy expressed in the National Labor Relations Act of promoting 'the peaceful settlement of industrial disputes by subjecting labor-management controversies to the mediatory influence of negotiation,' Fibreboard Paper Prods. Corp. v. National Labor Relations Board, 379 U.S. 203, 211, 85 S.Ct. 398, 403, 13 L.Ed.2d 233. But there are limits to what a union or an employer may offer or extract in the name of wages, and because they must bargain does not mean that the agreement reached may disregard other laws. Local 24 of Intern. Broth. of Teamsters, etc. v. Oliver, 358 U.S. 283, 296, 79 S.Ct. 297, 304, 3 L.Ed.2d 312; United Brotherhood of Carpenters v. United States, 330 U.S. 395, 399—400, 67 S.Ct. 775, 778, 91 L.Ed. 973.
14
We have said that a union may make wage agreements with a multiemployer bargaining unit and may in pursuance of its own union interests seek to obtain the same terms from other employers. No case under the antitrust laws could be made out on evidence limited to such union behavior.2 But we think a union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units. One group of employers may not conspire to eliminate competitors from the industry and the union is liable with the employers if it becomes a party to the conspiracy. This is true even though the union's part in the scheme is an undertaking to secure the same wages, hours or other conditions of employment from the remaining employers in the industry.
15
We do not find anything in the national labor policy that conflicts with this conclusion. This Court has recognized that a legitimate aim of any national labor organization is to obtain uniformity of labor standards and that a consequence of such union activity may be to eliminate competition based on differences in such standards. Apex Hosiery Co. v. Leader, 310 U.S. 469, 503, 60 S.Ct. 982, 997, 84 L.Ed. 1311. But there is nothing in the labor policy indicating that the union and the employers in one bargaining unit are free to bargain about the wages, hours and working conditions of other bargaining units or to attempt to settle these matters for the entire industry. On the contrary, the duty to bargain unit by unit leads to a quite different conclusion. The union's obligation to its members would seem best served if the union retained the ability to respond to each bargaining situation as the individual circumstances might warrant, without being strait-jacketed by some prior agreement with the favored employers.
16
So far as the employer is concerned it has long been the Board's view that an employer may not condition the signing of a collective bargaining agreement on the union's organization of a majority of the industry. American Range Lines, Inc., 13 N.L.R.B. 139, 147 (1939); Samuel Youlin, 22 N.L.R.B. 879, 885 (1940); Newton Chevrolet, Inc., 37 N.L.R.B. 334, 341 (1941); see National Labor Relations Board v. George P. Pilling & Son Co., 119 F.2d 32, 38 (C.A.3d Cir. 1941). In such cases the obvious interest of the employer is to ensure that acceptance of the union's wage demands will not adversely affect his competitive position. In American Range Lines, Inc., supra, the Board rejected that employer interest as a justification for the demand. '(A)n employer cannot lawfully deny his employees the right to bargain collectively through their designated representative in an appropriate unit because he envisions competitive disadvantages accruing from such bargaining.' 13 N.L.R.B., at 147. Such an employer condition, if upheld, would clearly reduce the extent of collective bargaining. Thus, in Newton Chevrolet, Inc., supra, where it was held a refusal to bargain for the employer to insist on a provision that the agreed contract terms would not become effective until five competitors had signed substantially similar contracts, the Board stated that '(t)here is nothing in the Act to justify the imposition of a duty upon an exclusive bargaining representative to secure an agreement from a majority of an employer's competitors as a condition precedent to the negotiation of an agreement with the employer. To permit individual employers to refuse to bargain collectively until some or all of their competitors had done so clearly would lead to frustration of the fundamental purpose of the Act to encourage the practice of collective bargaining.' 37 N.L.R.B., at 341. Permitting insistence on an agreement by the union to attempt to impose a similar contract on other employers would likewise seem to impose a restraining influence on the extent of collective bargaining, for the union could avoid an impasse only by surrendering its freedom to act in its own interest vis-a-vis other employers, something it will be unwilling to do in many instances. Once again, the employer's interest is a competitive interest rather than an interest in regulating its own labor relations, and the effect on the union of such an agreement would be to limit the free exercise of the employees' right to engage in concerted activities according to their own views of their self-interest. In sum, we cannot conclude that the national labor policy provides any support for such agreements.
17
On the other hand, the policy of the antitrust laws is clearly set against employer-union agreements seeking to prescribe labor standards outside the bargaining unit. One could hardly contend, for example, that one group of employers could lawfully demand that the union impose on other employers wages that were significantly higher than those paid by the requesting employers, or a system of computing wages that, because of differences im methods of production, would be more costly to one set of employers than to another. The anticompetitive potential of such a combination is obvious, but is little more severe than what is alleged to have been the purpose and effect of the conspiracy in this case to establish wages at a level that marginal producers could not pay so that they would be driven from the industry. And if the conspiracy presently under attack were declared exempt it would hardly be possible to deny exemption to such avowedly discriminatory schemes.
18
From the viewpoint of antitrust policy, moreover, all such agreements between a group of employers and a union that the union will seek specified labor standards outside the bargaining unit suffer from a more basic defect, without regard to predatory intention or effect in the particular case. For the salient characteristic of such agreements is that the union surrenders its freedom of action with respect to its bargaining policy. Prior to the agreement the union might seek uniform standards in its own self-interest but would be required to assess in each case the probable costs and gains of a strike or other collective action to that end and thus might conclude that the objective of uniform standards should temporarily give way. After the agreement the union's interest would be bound in each case to that of the favored employer group. It is just such restraints upon the freedom of economic units to act according to their own choice and discretion that run counter to antitrust policy. See, e.g., Associated Press v. United States, 326 U.S. 1, 19, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013; Fashion Originators' Guild v. Federal Trade Comm'n, 312 U.S. 457, 465, 61 S.Ct. 703, 706, 85 L.Ed. 949; Anderson v. Shipowners Assn., 272 U.S. 359, 364—365, 47 S.Ct. 125, 71 L.Ed. 298.
19
Thus the relevant labor and antitrust policies compel us to conclude that the alleged agreement between UMW and the large operators to secure uniform labor standards throughout the industry, if proved, was not exempt from the antitrust laws.
II.
20
The UMW next contends that the trial court erroneously denied its motion for a new trial based on claimed errors in the admission of evidence.
21
In Eastern R. R. Presidents Conf. v. Noerr Motor Freight Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464, the Court rejected an attempt to base a Sherman Act conspiracy on evidence consisting entirely of activities of competitors seeking to influence public officials. The Sherman Act, it was held, was not intended to bar concerted action of this kind even though the resulting official action damaged other competitors at whom the campaign was aimed. Furthermore, the legality of the conduct 'was not at all affected by any anticompetitive purpose it may have had,' id., at 140, 81 S.Ct. at 531—even though the 'sole purpose in seeking to influence the passage and enforcement of laws was to destroy the truckers as competitors for the long-distance freight business,' Id., at 138, 81 S.Ct. at 530. Nothing could be clearer from the Court's opinion than that anticompetitive purpose did not illegalize the conduct there involved.
22
We agree with the UMW that both the Court of Appeals and the trial court failed to take proper account of the Noerr case. In approving the instructions of the trial court with regard to the approaches of the union and the operators to the Secretary of Labor and to the TVA officials, the Court of Appeals considered Noerr as applying only to conduct 'unaccompanied by a purpose or intent to further a conspiracy to violate a statute. It is the illegal purpose or intent inherent in the conduct which vitiates the conduct which would otherwise be legal.' 325 F.2d, at 817. Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent of purpose. The Court of Appeals, however, would hold the conduct illegal depending upon proof of an illegal purpose.
23
The instructions of the trial court to the jury exhibit a similar infirmity. The jury was instructed that the approach to the Secretary of Labor was legal unless part of a conspiracy to drive small operators out of business and that the approach to the TVA was not a violation of the antitrust laws 'unless the parties so urged the TVA to modify its policies in buying coal for the purpose of driving the small operators out of business.' If, therefore, the jury determined the requisite anticompetitive purpose to be present, it was free to find an illegal conspiracy based solely on the Walsh-Healey and TVA episodes, or in any event to attribute illegality to these acts as part of a general plan to eliminate Phillips and other operators similarly situated. Neither finding, however, is permitted by Noerr for the reasons stated in that case. Joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition. Such conduct is not illegal, either standing alone or as part of a broader scheme itself violative of the Sherman Act. The jury should have been so instructed and, given the obviously telling nature of this evidence, we cannot hold this lapse to be mere harmless error.3
24
There is another reason for remanding this case for further proceedings in the lower courts. It is clear under Noerr that Phillips could not collect any damages under the Sherman Act for any injury which it suffered from the action of the Secretary of Labor. The conduct of the union and the operators did not violate the Act, the action taken to set a minimum wage for government purchases of coal was the act of a public official who is not claimed to be a co-conspirator, and the jury should have been instructed, as UMW requested, to exclude any damages which Phillips may have suffered as a result of the Secretary's Walsh-Healey determinations.4 See also American Banana Co. v. United Fruit Co., 213 U.S. 347, 358, 29 S.Ct. 511, 513, 53 L.Ed. 826; Angle v. Chicago, St. Paul, Minneapolis & Omaha R. Co., 151 U.S. 1, 16—21, 14 S.Ct. 240, 245, 247, 38 L.Ed. 55; Okefenokee Rural Elec. Mem. Corp. v. Florida P. & L. Co., 214 F.2d 413, 418 (C.A.5th Cir. 1954). The trial court, however, admitted evidence concerning the Walsh-Healey episodes for 'whatever bearing it may have on the overall picture' and told the jury in its final instructions to include in the verdict all damages resulting directly from any act which was found to be part of the conspiracy. The effect this may have had on the jury is reflected by the statement of the Court of Appeals that the jury could reasonably conclude 'that the wage determination for the coal industry under the Walsh-Healey Act and the dumping of West Kentucky coal on the TVA spot market materially and adversely affected the operations of Phillips in the important TVA market * * *,' 325 F.2d, at 815, and that '(t)his minimum wage determination prevented Phillips from bidding on the TVA term market * * *,' id., at 814.5
25
The judgment is reversed and the case remanded for further proceedings consistent with this opinion. It is so ordered.
26
Reversed and remanded.
27
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK, and Mr. Justice CLARK agree, concurring.
28
As we read the opinion of the Court, it reaffirms the principles of Allen Bradley Co. v. Local Union, No. 3, IBEW, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939, and tells the trial judge:
29
First. On the new trial the jury should be instructed that if there were an industry-wide collective bargaining agreement whereby employers and the union agreed on a wage scale that exceeded the financial ability of some operators to pay and that if it was made for the purpose of forcing some employers out of business, the union as well as the employers who participated in the arrangement with the union should be found to have violated the antitrust laws.
30
Second. An industry-wide agreement containing those features is prima facie evidence of a violation.*
31
In Allen Bradley Co. v. Union, No. 3, IBEW, supra, the union was promoting closed shops in the New York City area. It got contractors to purchase equipment only from local manufacturers who had closed-shop agreements with the union; and it got manufacturers to confine their New York City sales to contractors employing the union's members. Agencies were set up to boycott recalcitrant local contractors and manufacturers and bar from the area equipment manufactured outside its boundaries. As we said:
32
'The combination among the three groups, union, contractors, and manufacturers, became highly successful from the standpoint of all of them. The business of New York City manufacturers had a phenomenal growth, thereby multiplying the jobs available for the Local's members. Wages went up, hours were shortened, and the New York electrical equipment prices soared, to the decided financial profit of local contractors and manufacturers.' 325 U.S., at 800, 65 S.Ct., at 1535.
33
I repeat what we said in Allen Bradley Co. v. Union No. 3, IBEW, supra, 325 U.S., at 811, 65 S.Ct., at 1540:
34
'The difficulty of drawing legislation primarily aimed at trusts and monopolies so that it could also be applied to labor organizations without impairing the collective bargaining and related rights of those organizations has been emphasized both by congressional and judicial attempts to draw lines between permissible and prohibited union activities. There is, however, one line which we can draw with assurance that we follow the congressional purpose. We know that Congress feared the concentrated power of business organizations to dominate markets and prices. It intended to outlaw business monopolies. A business monopoly is no less such because a union participates, and such participation is a violation of the (Sherman) Act.'
35
Congress can design an oligopoly for our society, if it chooses. But business alone cannot do so as long as the antitrust laws are enforced. Nor should business and labor working hand-in-hand be allowed to make that basic change in the design of our so-called free enterprise system. If the allegations in this case are to be believed, organized labor joined hands with organized business to drive marginal operators out of existence. According to those allegations the union used its control over West Kentucky Coal Co. and Nashville Coal Co. to dump coal at such low prices that respondents, who were small operators, had to abandon their business. According to those allegations there was a boycott by the union and the major companies against small companies who needed major companies' coal land on which to operate. According to those allegations, high wage and welfare terms of employment were imposed on the small, marginal companies by the union and the major companies with the knowledge and intent that the small ones would be driven out of business.
36
The only architect of our economic system is Congress. We are right in adhering to its philosophy of the free enterprise system as expressed in the antitrust laws and as enforced by Allen Bradley Co. v. Union, supra, until the Congress delegates to big business and big labor the power to remold our economy in the manner charged here.
1
The parties stipulated that the damages period would include the four-year limitation period, 15 U.S.C. § 15b (1958 ed.), preceding the filing of Phillips' cross claim and extend up to December 31, 1958, the date on which Phillips terminated its business.
2
Unilaterally, and without agreement with any employer group to do so, a union may adopt a uniform wage policy and seek vigorously to implement it even though it may suspect that some employers cannot effectively compete if they are required to pay the wage scale demanded by the union. The union need not gear its wage demands to wages which the weakest units in the industry can afford to pay. Such union conduct is not alone sufficient evidence to maintain a union-employer conspiracy charge under the Sherman Act. There must be additional direct or indirect evidence of the conspiracy. There was, of course, other evidence in this case, but we indicate no opinion as to its sufficiency.
3
It would of course still be within the province of the trial judge to admit this evidence, if he deemed it probative and not unduly prejudicial, under the 'established judicial rule of evidence that testimony of prior or subsequent transactions, which for some reason are barred from forming the basis for a suit, may nevertheless be introduced if it tends reasonably to show the purpose and character of the particular transactions under scrutiny. Standard Oil Co. v. United States, 221 U.S. 1, 46, 47, 31 S.Ct. 502, 510, 55 L.Ed. 619. United States v. Reading Co., 253 U.S. 26, 43—44, 40 S.Ct. 425, 427, 428, 64 L.Ed. 760.' Federal Trade Comm'n v. Cement Institute, 333 U.S. 683, 705, 68 S.Ct. 793, 805, 92 L.Ed. 1010; see also Heike v. United States, 227 U.S. 131, 145, 33 S.Ct. 226, 229, 57 L.Ed. 450; American Medical Assn. v. United States, 76 U.S.App.D.C. 70, 87—89, 130 F.2d 233, 250—252 (1942), aff'd. 317 U.S. 519, 63 S.Ct. 326, 87 L.Ed. 434 (certiorari limited to other issues).
4
By contrast, in Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 82 S.Ct. 1404, 8 L.Ed.2d 777, we held that the acts of a wartime purchasing agent appointed by the Canadian Government could be proved as part of the conspiracy and as an element in computing damages. The purchasing agent, however, was not a public official but the wholly owned subsidiary of an American corporation alleged to be a principal actor in the conspiracy. The acts complained of had been performed at the direction of the purchasing agent's American parent and there was '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 (the plaintiff) be stopped.' 370 U.S. at 706, 82 S.Ct., at 1414. That case is wholly dissimilar to both Noerr and the present case.
5
This latter conclusion regarding the term market would seem doubly erroneous as Phillips had virtually conceded, in the course of offering evidence respecting bids of the alleged conspirators on the term market, that it was claiming no damages from its exclusion from the term market, a market it never had any immediate prospect of entering. The trial court ruled that the proffered testimony was inadmissible on the damages phase of the case.
*
'It is elementary that an unlawful conspiracy may be and often is formed without simultaneous action or agreement on the part of the conspirators. United States v. Schenck, D.C., 253 F. 212, 213, affirmed 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Levey v. United States, 9 Cir., 92 F.2d 688, 691. Acceptance by competitors, without previous agreement, of an invitation to participate in a plan, the necessary consequence of which, if carried out, is restraint of interstate commerce, is sufficient to establish an unlawful conspiracy under the Sherman Act. Eastern States Retail Lumber Dealers' Association v. United States, 234 U.S. 600, 34 S.Ct. 951, 58 L.Ed. 1490; Lawlor v. Loewe, 235 U.S. 522, 534, 35 S.Ct. 170, 171, 59 L.Ed. 341; American Column & Lumber Co. v. United States, 257 U.S. 377, 42 S.Ct. 114, 66 L.Ed. 284; United States v. American Linseed Oil Co., 262 U.S. 371, 43 S.Ct. 607, 67 L.Ed. 1035.' Interstate Circuit v. United States, 306 U.S. 208, 227, 59 S.Ct. 467, 474, 83 L.Ed. 610.
| 67
|
381 U.S. 676
85 S.Ct. 1607
14 L.Ed.2d 626
UNITED MINE WORKERS OF AMERICA, Petitioner,v.James M. PENNINGTON et al. LOCAL UNION NO. 189, AMALGAMATED MEAT CUTTERS, AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, et al., Petitioners, v. JEWEL TEA COMPANY, Inc.
Nos. 48, 240.
Supreme Court of the United States
June 7, 1965
[Syllabus from pages 676-678 intentionally omitted]
Bernard Dunau, Washington, D.C., for petitioners.
George B. Christensen, Chicago, Ill., for respondent.
Archibald Cox, Sol. Gen., for the United States, as amicus curiae, by special leave of Court.
Mr. Justice WHITE announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and Mr. Justice BRENNAN join.
1
Like No. 48, United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585 decided today, this case presents questions regarding the application of §§ 1 and 2 of the Sherman Anti-trust Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2 (1958 ed.), to activities of labor unions. In particular, it concerns the lawfulness of the following restriction on the operating hours of food store meat departments contained in a collective bargaining agreement executed after joint multi-employer, multiunion negotiations:
2
'Market operating hours shall be 9:00 a.m. to 6:00 p.m. Monday through Saturday, inclusive. No customer shall be served who comes into the market before or after the hours set forth above.'
3
This litigation arose out of the 1957 contract negotiations between the representatives of 9,000 Chicago retailers of fresh meat and the seven union petitioners, who are local affiliates of the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL—CIO, representing virtually all butchers in the Chicago area. During the 1957 bargaining sessions the employer group presented several requests for union consent to a relaxation of the existing contract restriction on marketing hours for fresh meat, which forbade the sale of meat before 9 a.m. and after 6 p.m. in both service and self-service markets.1 The unions rejected all such suggestions, and their own proposal retaining the marketing-hours restriction was ultimately accepted at the final bargaining session by all but two of the employers, National Tea Co. and Jewel Tea Co. (hereinafter 'Jewel'). Associated Food Retailers of Greater Chicago, a trade association having about 1,000 individual and independent merchants as members and representing some 300 meat dealers in the negotiations, was among those who accepted. Jewel, however, asked the union negotiators to present to their membership, on behalf of it and National Tea, a counter offer that included provision for Friday night operations. At the same time Jewel voiced its belief, as it had midway through the negotiations, that any marketing-hours restriction was illegal. On the recommendation of the union negotiators, the Jewel offer was rejected by the union membership, and a strike was authorized. Under the duress of the strike vote, Jewel decided to sign the contract previously approved by the rest of the industry.
4
In July 1958 Jewel brought suit against the unions, certain of their officers, Associated, and Charles H. Bromann, Secretary-Treasurer of Associated, seeking invalidation under §§ 1 and 2 of the Sherman Act of the contract provision that prohibited night meat market operations. The gist of the complaint was that the defendants and others had conspired together to prevent the retail sale of fresh meat before 9 a.m. and after 6 p.m. As evidence of the conspiracy Jewel relied in part on the events during the 1957 contract negotiations—the acceptance by Associated of the market-hours restriction and the unions' imposition of the restriction on Jewel through a strike threat. Jewel also alleged that it was a part of the conspiracy that the unions would neither permit their members to work at times other than the hours specified nor allow any grocery firm to sell meat, with or without employment of their members, outside those hours; that the members of Associated, which had joined only one of the 1957 employer proposals for extended marketing hours, had agreed among themselves to insist on the inclusion of the marketing-hours limitation in all collective bargaining agreements between the unions and any food store operator; that Associated, its members and officers had agreed with the other defendants that no firm was to be permitted to operate self-service meat markets between 6 p.m. and 9 p.m.; and that the unions, their officers and members had acted as the enforcing agent of the conspiracy.
5
The complaint stated that in recent years the prepackaged, self-service system of marketing meat had come into vogue, that 174 of Jewel's 196 stores were equipped to vend meat in this manner, and that a butcher need not be on duty in a self-service market at the time meat purchases were actually made. The prohibition of night meat marketing, it was alleged, unlawfully impeded Jewel in the use of its property and adversely affected the general public in that many persons find it inconvenient to shop during the day. An injunction, treble damages and attorney's fees were demanded.
6
The trial judge held the allegations of the complaint sufficient to withstand a motion to dismiss made on the grounds, inter alia, that (a) the alleged restraint was within the exclusive regulatory scope of the National Labor Relations Act and was therefore outside the jurisdiction of the Court and (b) the controversy was within the labor exemption to the antitrust laws. That ruling was sustained on appeal. Jewel Tea Co. v. Local Unions Nos. 189, etc., Amalgamated Meat Cutters, AFL—CIO, 274 F.2d 217 (C.A.7th Cir. 1960), cert. denied, 362 U.S. 936, 80 S.Ct. 757, 4 L.Ed.2d 747. After trial, however, the District Judge ruled the 'record was devoid of any evidence to support a finding of conspiracy' between Associated and the unions to force the restrictive provision on Jewel. 215 F.Supp. 839, 845. Testing the unions' action standing alone, the trial court found that even in self-service markets removal of the limitation on marketing hours either would inaugurate longer hours and night work for the butchers or would result in butchers' work being done by others unskilled in the trade. Thus, the court concluded, the unions had imposed the marketing-hours limitation to serve their own interests respecting conditions of employment, and such action was clearly within the labor exemption of the Sherman Act established by Hunt v. Crumboch, 325 U.S. 821, 65 S.Ct. 1545, 89 L.Ed. 1954; United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788; United States v. American Federation of Musicians, 318 U.S. 741, 63 S.Ct. 665, 87 L.Ed. 1120. Alternatively, the District Court ruled that even if this was not the case, the arrangement did not amount to an unreasonable restraint of trade in violation of the Sherman Act.
7
The Court of Appeals reversed the dismissal of the complaint as to both the unions and Associated. Without disturbing the District Court's finding that, apart from the contractual provision itself, there was no evidence of conspiracy, the Court of Appeals concluded that a conspiracy in restraint of trade had been shown. The court noted that '(t)he rest of the Industry agreed with the Defendant Local Unions to continue the ban on night operations,' while plaintiff resisted, and concluded that Associated and the unions 'entered into a combination or agreement, which constituted a conspiracy, as charged in the complaint. * * * (w)hether it be called an agreement, a contract or a conspiracy, is immaterial.' 331 F.2d 547, 551.
8
Similarly, the Court of Appeals did not find it necessary to review the lower court's finding that night marketing would affect either the butchers' working hours or their jurisdiction, for the court held that an employer-union contract respecting working hours would be unlawful. 'One of the proprietary functions is the determination of what days a week and what hours of the day the business will be open to supply its customers. * * * As long as all rights of employees are recognized and duly observed by the employer, including the number of hours per day that any one shall be required to work, any agreement by a labor union, acting in concert with business competitors of the employer, designed to interfere with his operation of a retail business * * * is a violation of the Sherman Act. * * * (T)he furnishing of a place and advantageous hours of employment for the butchers to supply meat to customers are the prerogatives of the employer.' 331 F.2d 547, 549.
9
We granted certiorari on the unions' petition,2 379 U.S. 813, 85 S.Ct. 66,3 and now reverse the Court of Appeals.
I.
10
We must first consider the unions' attack on the appropriateness of the District Court's exercise of jurisdiction, which is encompassed in their contention that this controversy is within the exclusive primary jurisdiction of the National Labor Relations Board. On this point, which is distinct from the unions' argument that the operating-hours restriction is subject to regulation only by the Board and is thus wholly exempt from the antitrust laws, the unions' thesis is that the privotal issue is whether the operating-hours restriction is a 'term or condition of employment' and that the District Court should have held the case on its docket pending a Board Proceeding to resolve that issue, which is said to be peculiarly within the competence of the Board.
11
'The doctrine of primary jurisdiction * * * applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.' United States v. Western Pac. R. Co., 352 U.S. 59, 63—64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126. The doctrine is based on the principle 'that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over,' Far East Conference v. United States, 342 U.S. 570, 574, 72 S.Ct. 492, 494, 96 L.Ed. 576, and 'requires judicial abstention in cases where protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme,' United States v. Philadelphia Nat. Bank, 374 U.S. 321, 353, 83 S.Ct. 1715, 1736, 10 L.Ed.2d 915.
12
Whether a proposed bargaining subject is a term or condition of employment is an issue that the Board frequently determines in considering charges that an employer or union has violated the duty to bargain in good faith concerning 'wages, hours, and other terms and conditions of employment,' the mandatory subjects of bargaining described in § 8(b) of the National Labor Relations Act, 49 Stat. 452, as amended. Such an issue may be raised by an unfair labor practice charge of violation of § 8(a)(5) or § 8(b)(3) through, for example, a refusal to bargain on a mandatory subject of bargaining, see National Labor Relations Board v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230, or insistence on a nonmandatory subject, see National Labor Relations Board v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823. Thus, the unions contend, Jewel could have filed an unfair labor practice charge with the Board on the ground that the unions had insisted on a nonmandatory subject—the marketing-hours restriction. Obviously, classification of bargaining subjects as 'terms or conditions of employment' is a matter concerning which the Board has special expertise. Nevertheless, for the reasons stated below we cannot conclude that this is a proper case for application of the doctrine of primary jurisdiction.
13
To begin with, courts are themselves not without experience in classifying bargaining subjects as terms or conditions of employment. Just such a determination must be frequently made when a court's jurisdiction to issue an injunction affecting a labor dispute is challenged under the Norris-LaGuardia Act, which defines 'labor dispute' as including 'any controversy concerning terms or conditions of employment.' Norris-LaGuardia Act, § 13(c), 47 Stat. 73, 29 U.S.C. § 113(c), (1958 ed.). See Order of Railroad Telegraphers v. Chicago & N.W.R. Co., 362 U.S. 330, 80 S.Ct. 761, 4 L.Ed.2d 774; Bakery Sales Drivers Local Union v. Wagshal, 333 U.S. 437, 68 S.Ct. 630, 92 L.Ed. 792; cf. Local 24 of Intern. Broth. of Teamsters Union v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312.
14
Secondly, the doctrine of primary jurisdiction is not a doctrine of futility; it does not require resort to 'an expensive and merely delaying administrative proceeding when the case must eventually be decided on a controlling legal issue wholly unrelated to determinations for the ascertainment of which the proceeding was sent to the agency.' Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481, 521, 78 S.Ct. 851, 873, 2 L.Ed.2d 926 (Frankfurter, J., dissenting). It was only after commencement of trial that it became evident that a major issue in this case would be whether the marketing-hours restriction was a term or condition of employment. Jewel's complaint alleged the existence of a conspiracy between Associated and the unions to impose the marketing-hours provision on Jewel—that is, it was alleged that the unions had agreed with a part of the bargaining unit to impose certain terms on the rest of the unit. We hold today in United Mine Workers of America v. Pennington with respect to allegations of a similar employer-union agreement to impose a particular scale of wages—indisputably at the core of 'wages, hours, and other terms and conditions of employment'—that such an understanding is not exempt from the Sherman Act. At the stage when the decision whether to refer the parties to the Board was made, therefore, the issues were so framed that a Board determination would have been of subsidiary importance at best.
15
Finally, we must reject the unions' primary-jurisdiction contention because of the absence of an available procedure for obtaining a Board determination. The Board does not classify bargaining subjects in the abstract but only in connection with unfair labor practice charges of refusal to bargain. The typical antitrust suit, however, is brought by a stranger to the bargaining relationship, and the complaint is not that the parties have refused to bargain but, quite the contrary, that they have agreed. Jewel's conspiracy allegation in the present case was just such a complaint. Agreement is of course not a refusal to bargain, and in such cases the Board affords no mechanism for obtaining a classification of the subject matter of the agreement. Moreover, even in the few instances when the antitrust action could be framed as a refusal to bargain charge, there is no guarantee of Board action. It is the function of the Board's General Counsel rather than the Board or a private litigant to determine whether an unfair labor practice complaint will ultimately issue. National Labor Relations Act, § 3(d), 29 U.S.C. § 153(d) (1958 ed.). And the six-month limitation period of § 10(b) of the Act, 29 U.S.C. § 160(b) (1958 ed.), would preclude many litigants from even filing a charge with the General Counsel. Indeed, Jewel's complaint in this very case was filed more than six months after it signed the 1957 collective bargaining agreement. '(W)e know of no case where the court has ordered reference of an issue which the administrative body would not itself have jurisdiction to determine in a proceeding for that purpose.' Montana-Dakota Utilities Co. v. Northwestern Public Serv. Co., 341 U.S. 246, 254, 71 S.Ct. 692, 696, 95 L.Ed. 912.4
II.
16
Here, as in United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, the claim is made that the agreement under attack is exempt from the antitrust laws. We agree, but not on the broad grounds urged by the union.
17
It is well at the outset to emphasize that this case comes to us stripped of any claim of a union-employer conspiracy against Jewel. The trial court found no evidence to sustain Jewel's conspiracy claim and this finding was not disturbed by the Court of Appeals. We therefore have a situation where the unions, having obtained a marketing-hours agreement from one group of employers, have successfully sought the same terms from a single employer, Jewel, not as a result of a bargain between the unions and some employers directed against other employers, but pursuant to what the unions deemed to be in their own labor union interests.
18
Jewel does not allege that it has been injured by the elimination of competition among the other employers within the unit with respect to marketing hours; Jewel complains only of the unions' action in forcing it to accept the same restriction, the unions acting not at the behest of any employer group but in pursuit of their own policies. It might be argued that absent any union-employer conspiracy against Jewel and absent any agreement between Jewel and any other employer, the union-Jewel contract cannot be a violation of the Sherman Act. But the issue before us is not the broad substantive one of a violation of the antitrust laws—was there a conspiracy or combination which unreasonably restrained trade or an attempt to monopolize and was Jewel damaged in its business?—but whether the agreement is immune from attack by reason of the labor exemption from the antitrust laws. See note 3, supra. The fact that the parties to the agreement are but a single employer and the unions representing its employees does not compel immunity for the agreement. We must consider the subject matter of the agreement in the light of the national labor policy. Cf. Bakery Sales Drivers Local Union v. Wagshal, 333 U.S. 437, 68 S.Ct. 630.
19
We pointed out in Pennington that exemption for union-employer agreements is very much a matter of accommodating the coverage of the Sherman Act to the policy of the labor laws. Employers and unions are required to bargain about wages, hours and working conditions, and this fact weighs heavily in favor of antitrust exemption for agreements on these subjects. But neither party need bargain about other matters and either party commits an unfair labor practice if it conditions its bargaining upon discussions of a nonmandatory subject. National Labor Relations Board v. Division of Wooster Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718. Jewel, for example, need not have bargained about or agreed to a schedule of prices at which its meat would be sold and the unions could not legally have insisted that it do so. But if the unions had made such a demand Jewel had agreed and the United States or an injured party had challenged the agreement under the antitrust laws, we seriously doubt that either the unions or Jewel could claim immunity by reason of the labor exemption, whatever substantive questions of violation there might be.
20
Thus the issue in this case is whether the marketing-hours restriction, like wages, and unlike prices, is so intimately related to wages, hours and working conditions that the unions' successful attempt to obtain that provision through bona fide, arm's-length bargaining in pursuit of their own labor union policies, and not at the behest of or in combination with nonlabor groups, falls within the protection of the national labor policy and is therefore exempt from the Sherman Act.5 We think that it is.
21
The Court of Appeals would classify the marketing-hours restriction with the product-pricing provision and place both within the reach of the Sherman Act. In its view, labor has a legitimate interest in the number of hours it must work but no interest in whether the hours fall in the daytime, in the nighttime or on Sundays. '(T)he furnishing of a place and advantageous hours of employment for the butchers to supply meat to customers are the prerogatives of the employer.' 331 F.2d 547, 549. That reasoning would invalidate with respect to both service and self-service market the 1957 provision that 'eight hours shall constitute the basic work day, Monday through Saturday; work to being at 9:00 a.m. and stop at 6:00 p.m. * * *' as well as the marketing-hours restriction.
22
Contrary to the Court of Appeals, we think that the particular hours of the day and the particular days of the week during which employees shall be required to work are subjects well within the realm of 'wages, hours, and other terms and conditions of employment' about which employers and unions must bargain. National Labor Relations Act, § 8(d); see Timken Roller Bearing Co., 70 N.L.R.B. 500, 504, 515—516, 521 (1946), rev'd on other grounds, 161 F.2d 949 (C.A.6th Cir. 1947) (employer's unilateral imposition of Sunday work was refusal to bargain); Massey Gin & Machine Works, Inc., 78 N.L.R.B. 189, 195, 199 (1948) (change in starting and quitting time); Camp & McInnes, Inc., 100 N.L.R.B. 524, 532 (1952) (reduction of lunch hour and advancement of quitting time). And, although the effect on competition is apparent and real, perhaps more so than in the case of the wage agreement, the concern of union members is immediate and direct. Weighing the respective interests involved, we think the national labor policy expressed in the National Labor Relations Act places beyond the reach of the Sherman Act union-employer agreements on when, as well as how long, employees must work. An agreement on these subjects between the union and the employers in a bargaining unit is not illegal under the Sherman Act, nor is the union's unilateral demand for the same contract of other employers in the industry.
23
Disposing of the case, as it did, on the broad grounds we have indicated, the Court of Appeals did not deal separately with the marketing-hours provision, as distinguished from hours of work, in connection with either service or self-service markets. The dispute here pertains principally to self-service markets.
24
The unions argue that since night operations would be impossible without night employment of butchers, or an impairment of the butchers' jurisdiction, or a substantial effect on the butchers' workload, the marketing-hours restriction is either little different in effect from the valid working-hours provision that work shall stop at 6 p.m. or is necessary to protect other concerns of the union members. If the unions' factual premises are true, we think the unions could impose a restriction on night operations without violation of the Sherman Act; for then operating hours, like working hours, would constitute a subject of immediate and legitimate concern to union members.
25
Jewel alleges on the other hand that the night operation of self-service markets requires no butcher to be in attendance and does not infringe any other legitimate union concern. Customers serve themselves; and if owners want to forgo furnishing the services of a butcher to give advice or to make special cuts, this is not the unions' concern since their desire to avoid night work is fully satisfied and no other legitimate interest is being infringed. In short, the connection between working hours and operating hours in the case of the self-service market is said to be so attenuated as to bring the provision within the prohibition of the Sherman Act.
26
If it were true that self-service markets could actually operate without butchers, at least for a few hours after 6 p.m., that no encroachment on butchers' work would result and that the workload of butchers during normal working hours would not be substantially increased, Jewel's position would have considerable merit. For then the obvious restraint on the product market—the exclusion of self-service stores from the evening market for meat would stand alone, unmitigated and unjustified by the vital interests of the union butchers which are relied upon in this case. In such event the limitation imposed by the unions might well be reduced to nothing but an effort by the unions to protect one group of employers from competition by another, which is conduct that is not exempt from the Sherman Act. Whether there would be a violation of §§ 1 and 2 would then depend on whether the elements of a conspiracy in restraint of trade or an attempt to monopolize had been proved.6
27
Thus the dispute between Jewel and the unions essentially concerns a narrow factual question: Are night operations without butchers, and without infringement of butchers' interests, feasible? The District Court resolved this factual dispute in favor of the unions. It found that 'in stores where meat is sold at night it is impractical to operate without either butchers or other employees. Someone must arrange, replenish and clean the counters and supply customer services.' Operating without butchers would mean that 'their work would be done by others unskilled in the trade,' and 'would involve an increase in workload in preparing for the night work and cleaning the next morning.' 215 F.Supp., at 846. Those findings were not disturbed by the Court of Appeals, which, as previously noted, proceeded on a broader ground. Our function is limited to reviewing the record to satisfy ourselves that the trial judge's findings are not clearly erroneous. Fed.Rules Civ.Proc. 52(a).
28
The trial court had before it evidence concerning the history of the unions' opposition to night work, the development of the provisions respecting night work and night operations, the course of collective bargaining negotiations in 1957, 1959, and 19617 with regard to those provisions, and the characteristics of meat marketing insofar as they bore on the feasibility of night operations without butchers.
29
The unions' opposition to night work has a long history. Prior to 1919 the operating hours of meat markets in Chicago were 7 a.m. to 7 p.m., Monday through Friday; 7 a.m. to 10 p.m. on Saturday, and 7 a.m. to 1 p.m. on Sunday. Butchers worked the full 81-hour, seven-day week. The Chicago butchers' strike of 1919 was much concerned with shortening working hours, and the resulting contract, signed in 1920, set the working day at 8 a.m. to 6 p.m., Monday through Friday, and 8 a.m. to 9 p.m. on Saturday. Various alterations in the hours were made in 1937, 1941, 1945, 1946, and again in 1947, when the present working hours (9 a.m. to 6 p.m., Monday through Saturday) were established. In a mail ballot conducted by the unions in October 1962, Jewel's meat cutters voted 759 to 28 against night work.
30
Concomitant with the unions' concern with the working hours of butchers was their interest in the hours during which customers might be served. The 1920 agreement provided that 'no customers will be served who come into the market after 6 P.M. and 9 P.M. on Saturdays and on days preceding holidays * * *.' That provision was continued until 1947, when it was superseded by the formulation presently in effect and here claimed to be unlawful:
31
'Market operating hours shall be 9:00 a.m. to 6:00 p.m. Monday through Saturday, inclusive. No customer shall be served who comes into the market before or after the hours set forth above.'
32
In 1947, Jewel had just started investigating the self-service method of meat vending. It introduced that method in the Chicago area in 1948 and in the territory of these unions in 1953.
33
During the 1957 negotiations numerous proposals for relaxation of the operating-hours restriction were presented by the employer group. Each of these proposals, including the submitted separately by Jewel for consideration at the unions' ratification meetings, combined a provision for night operations with a provision for a more flexible workday that would permit night employment of butchers. Such juxtaposition of the two provisions could, of course, only serve to reinforce the unions' fears that night operations meant night work. Jewel did allege in its complaint, filed in July 1958, that night operations were possible without butchers, but even in the 1959 bargaining sessions Jewel failed to put forth any plan for night operations that did not also include night work. Finally, toward the end of the 1961 negotiations, Jewel did make such a suggestion, but, as the trial judge remarked, the 'unions questioned the seriousness of that proposal under the circumstances.' 215 F.Supp., at 843.
34
The unions' evidence with regard to the practicability of night operations without butchers was accurately summarized by the trial judge as follows:
35
'(I)n most of plaintiff's stores outside Chicago, where night operations exist, meat cutters are on duty whenever a meat department is open after 6 P.M. * * *. Even in self-service departments, ostensibly operated without employees on duty after 6 P.M., there was evidence that requisite customer services in connection with meat sales were performed by grocery clerks. In the same vein, defendants adduced evidence that in the sale of delicatessen items, which could be made after 6 P.M. from self-service cases under the contract, 'practically' always during the time the market was open the manager, or other employees, would be rearranging and restocking the cases. There was also evidence that even if it were practical to operate a self-service meat market after 6 P.M. without employees, the night operations would add to the workload in getting the meats prepared for night sales and in putting the counters in order the next day.' 215 F.Supp., at 844.
36
Jewel challenges the unions' evidence on each of these points arguing, for example, that its preference to have butchers on duty at night, where possible under the union contract, is not probative of the feasibility of not having butchers on duty and that the evidence that grocery clerks performed customer services within the butchers' jurisdiction was based on a single instance resulting from 'entrapment' by union agents. But Jewel's argument when considered against the historical background of union concern with working hours and operating hours and the virtually uniform recognition by employers of the intimate relationship between the two subjects, as manifested by bargaining proposals in 1957, 1959, and 1961—falls far short of a showing that the trial judge's ultimate findings were clearly erroneous.
37
Judgment reversed and case remanded to the United States District Court for the Northern District of Illinois for further proceedings in conformity with the judgment of this Court.
38
Mr. Justice GOLDBERG, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting from the opinion but concurring in the reversal in No. 48 and concurring in the judgment of the Court in No. 240.
39
Stripped of all the pejorative adjectives and reduced to their essential facts, both Pennington and Jewel Tea represent refusals by judges to give full effect to congressional action designed to prohibit judicial intervention via the antitrust route in legitimate collective bargaining. The history of these cases furnishes fresh evidence of the observation that in this area, necessarily involving a determination of 'what public policy in regard to the industrial struggle demands,' Duplex Printing Press Co. v. Deering, 254 U.S. 443, 479, 485, 41 S.Ct. 172, 183, 65 L.Ed. 349 (dissenting opinion of Mr. Justice Brandeis), 'courts have neither the aptitude nor the criteria for reaching sound decisions.' Cox, Labor and the Antitrust Laws—A Preliminary Analysis, 104 U.Pa.L.Rev. 252, 269—270 (1955); see Winter, Collective Bargaining and Competition: The Application of Antitrust Standards to Union Activities, 73 Yale L.J. 14 (1963).
I.
40
Pennington presents a case of a union negotiating with the employers in the industry for wages, fringe benefits, and working conditions. Despite allegations of conspiracy, which connotes clandestine activities, it is no secret that the United Mine Workers acting to further what it considers to be the best interests of its members, espouses a philosophy of achieving uniform high wages, fringe benefits, and good working conditions. As the quid pro quo for this, the Union is willing to accept the burdens and consequences of automation. Further, it acts upon the view that the existence of marginal operators who cannot afford these high wages, fringe benefits, and good working conditions does not serve the best interests of the working miner but, on the contrary, depresses wage standards and perpetuates undesirable conditions. This has been the articulated policy of the Union since 1933. See Baratz, The Union and the Coal Industry 62—74 (1955). The Mine Workers has openly stated its preference, if need be, for a reduced working force in the industry, with those employed working at high wages rather than for greater total employment at lesser wage rates. Ibid. See also Folliard, Roar of John L. Lewis Subdued at 85, The Washington Post, Feb. 14, 1965, § E, p. 3; Hearings before a Subcommittee of the Senate Committee on Labor and Public Welfare on S.Res. 274, 81st Cong., 2d Sess., 1 10; Hearings before a subcommittee of the House Committee on Education and Labor, Welfare of Miners, 80th Cong., 1st Sess.; 1 Proceedings of Forty-Second Consecutive Constitutional Convention of the United Mine Workers of America, 9—14 (1956). Consistent with this view, the Union welcomes automation, insisting only that the workers participate in its benefits.1
41
Jewel Tea presents another and different aspect of collective bargaining philosophy. The Chicago Local of the Amalgamated Meat Cutters bargains for its members with small, independent service butchers as well as large automated self-service chains. It seeks from both a uniform policy that no fresh meat be sold after 6 p.m. This union policy, as my Brother WHITE recognizes, 381 U.S., at 694—696, 85 S.Ct., at 1604—1605, has a long history dating back to 1919 and has grown out of the Union's struggle to reduce the long, arduous hours worked by butchers, which in 1919 were 81 hours per week. It took a long strike to achieve the first limitation on hours in 1920, and it has required hard extensive collective bargaining since then to maintain the policy and further reduce the number of hours worked. While it is claimed by Jewel Tea, a large operator of automated self-service markets, that it can operate beyond the set hours without increasing the work of butchers or having others do butchers' work—a claim rejected by the trial court and the majority of this Court—it is conceded, on this record, that the small, independent service operators cannot do so. Therefore to the extent that the Union's uniform policy limiting hours of selling fresh meat has the effect of aiding one group of employers at the expense of another, here the union policy, unlike that in Pennington, aids the small employers at the expense of the large.
42
Although evidencing these converse economic effects, both Pennington and Jewel Tea, as the Court in Pennington, and my Brother WHITE's opinion in Jewel Tea acknowledge, involve conventional collective bargaining on wages, hours, and working conditions—mandatory subjects of bargaining under the National Labor Relations Act, 49 Stat. 452, as amended, 29 U.S.C. § 158(d) (1958 ed.). Yet the Mine Workers' activity in Pennington was held subject to an antitrust action by two lower courts. This decision was based upon a jury determination that the Union's economic philosophy is undesirable, and it resulted in an award against the Union of treble damages of $270,000 and $55,000 extra for respondent's attorneys' fees. In Jewel Tea, the Union has also been subjected to an antitrust suit in which a court of appeals, with its own notions as to what butchers are legitimately interested in, would subject the Union to a treble damage judgment in an as yet undetermined amount.
43
Regretfully these cases, both in the ower courts and in expressions in the arious opinions filed today in this Court, as I shall demonstrate, constitute a throwback to past days when courts allowed antitrust actions against unions and employers engaged in conventional collective bargaining, because 'a judge considered' the union or employer conduct in question to be 'socially or economically' objectionable. Duplex Printing Press Co. v. Deering, supra, 254 U.S. at 485, 41 S.Ct. at 183 (dissenting opinion of Mr. Justice Brandeis). It is necessary to recall that history to place the cases before us in proper perspective.
II.
44
The Sherman Act, 26 Stat. 209, 15 U.S.C. § 1 et seq. (1958 ed.), 'was enacted in the era of 'trusts' and of 'combinations' of businesses and of capital organized and directed to control of the market by suppression of competition in the marketing of goods and services, the monopolistic tendency of which had become a matter of public concern.' Apex Hosiery Co. v. Leader, 310 U.S. 469, 492 493, 60 S.Ct. 982, 992, 84 L.Ed. 1311. Despite the fact that the Act was therefore aimed at business combinations, not labor unions, and that a careful reading of the legislative history shows that the interdiction of 'every' contract, combination or conspiracy in restraint of trade was not intended to apply to labor unions and the activities of labor unions in their own interests, aimed at promotion of the labor conditions of their members,2 the Court in Loewe v. Lawlor, 208 U.S. 274, 28 S.Ct. 301, 52 L.Ed. 488, held that the Act proscribed activities of labor unions and, in that case, prohibited the use of a secondary boycott as part of an organizational campaign. Congress responded by adopting in §§ 6 and 20 of the Clayton Act, 38 Stat. 731, 738, 15 U.S.C. § 17, 29 U.S.C. § 52 (1958 ed.), what has come to be known as the labor exemption from the Sherman Act. See Frankfurter & Greene, The Labor Injunction 139—144 (1930). Section 6 states: '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 * * * organizations, instituted for the purposes of mutual help * * * or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof * * *.'3 Section 20 barred federal court injunctions 'in any case between an employer and employees, or between employers and employees' involving a dispute over terms and conditions of employment. It specifically prohibited issuance of injunctions against certain activities such as quitting work, persuading others to do the same, etc., and concluded with the provision: 'nor shall any of the acts specified * * * be considered or held to be violations of any law of the United States.'
45
These congressional provisions, however, were frustrated, as thoughtful commentators have acknowledged, by decisions of this Court. See, e.g., , Frankfurter & Greene, op. cit. supra, at 165 176; Cox, op. cit. supra, at 257—258. See also H.R.Rep.No. 669, 72d Cong., 1st Sess., 3, 7—8. In Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349, the Court was again faced with a secondary boycott used as an organizational tool, that is, a post-Clayton Act Lawlor situation. Despite the Act, the Court again held the activity to violate the Sherman Act on the basis that § 6 did not confer immunity from antitrust liabilities 'where * * * (unions) depart from * * * normal and legitimate objects * * *.' Id., at 469, 41 S.Ct. at 177. What constitutes a 'normal and legitimate' union object was to be determined by the courts; the Duplex Court held that a secondary boycott was not such an object. Section 20 was swept away on the ground that it only applied to controversies between 'employers and employees,' and that 'it would do violence to the * * * language employed,' id., at 472, 41 S.Ct., at 178, to hold that the section included an attempt to organize a new employer. Mr. Justice Brandeis, in dissent (joined by Mr. Justice Holmes and Mr. Justice Clarke), forcefully argued that the decision of the majority violated the clear congressional purpose to remove from judges the determination of 'what public policy in regard to the industrial struggle demands,' id., at 485, 41 S.Ct., at 183, and to 'declare the right of industrial combatants to push their struggle to the limits of the justification of self-interest * * *.' Id., at 488, 41 S.Ct., at 184.
46
Duplex was followed by other decisions of this Court and lower federal courts which sustained the application of the antitrust laws to curb both primary and secondary union activity. See, e.g., Bedford Cut Stone Co. v. Journeymen Stone Cutters Ass'n of North America, 274 U.S. 37, 47 S.Ct. 522, 71 L.Ed. 916; Coronado Coal Co. v. United Mine Workers of America, 268 U.S. 295, 45 S.Ct. 551, 69 L.Ed. 963; Alco-Zander Co. v. Amalgamated Clothing Workers of America, 35 F.2d 203 (D.C.E.D.Pa.); United States v. Railway Employees' Dept. of American Federation of Labor, 283 F. 479 (D.C.N.D.Ill.).
47
Mr. Justice Brandeis' dissent in Duplex has, however, carried the day in the courts of history as evidenced by subsequent congressional action and decisions of this Court. The Norris-LaGuardia Act, 47 State. 70, 29 U.S.C. § 101 (1958 ed.), was passed by Congress in 1932 expressly to overrule the majority opinion of Duplex and the cases that followed it and to affirm the philosophy of the dissenters in those cases. See United States v. Hutcheson, 312 U.S. 219, 235—236, 61 S.Ct. 463, 467—468, 85 L.Ed. 788; Milk Wagon Drivers Union, etc. v. Lake Valley Farm Products, Inc., 311 U.S. 91, 102—103, 61 S.Ct. 122, 127—128, 85 L.Ed. 63; New Negro Alliance v.Sanitary Grocery Co., 303 U.S. 552, 562, 58 S.Ct. 703, 707, 82 L.Ed. 1012.4 Although framed in terms of restrictions on the use of injunctions, this Court in United States v. Hutcheson, 312 U.S. 219, 235—236, 61 S.Ct. 463, 468, recognized that the Act's 'underlying aim * * * was to restore the broad purpose which Congress thought it had formulated in the Clayton Act but which was frustrated * * *.' See H.R.Rep.No.669, 72d Cong., 1st Sess., 6—8. As this Court has recognized, congressional enactment of the Norris-LaGuardia Act 'was prompted by a desire * * * to withdraw federal courts from a type of controversy for which many believed they were ill-suited and from participation in which, it was feared, judicial prestige might suffer.' Marine Cooks & Stewards, AFL v. Panama S.S. Co., 362 U.S. 365, 370, n. 7, 80 S.Ct. 779, 783, 4 L.Ed.2d 797. The Wagner Act, 49 Stat. 449, as amended, 29 U.S.C. § 151 et seq. (1958 ed.), followed the Norris-LaGuardia Act and gave affirmative protection and encouragement to union organization and collective bargaining and further reflected congressional desire to narrow the judiciary's role in the formulation of labor policy by entrusting principal enforcement responsibility to an administrative agency.
48
Following adoption of the Norris-LaGuardia and Wagner Acts, in Apex Hosiery Co. v. Leader, 310 U.S. 469, 60 S.Ct. 982, the Court gave proper recognition to congressional purpose in this area. In holding that union use of a sit-down strike as an organizational tool did not violate the antitrust laws, even though attended with violence, the Court stated:
49
'Strikes or agreements not to work, entered into by laborers to compel employers to yield to their demands, may restrict to some extent the power of employers who are parties to the dispute to compete in the market with those not subject to such demands.
50
But * * * the mere fact of such restrictions on competition does not in itself bring the parties to the agreement within the condemnation of the Sherman Act. * * * Furthermore, successful union activity, as for example consummation of a wage agreement with employers, may have some influence on price competition by eliminating that part of such competition which is based on differences in labor standards. Since, in order to render a labor combination effective it must eliminate the competition from nonunion made goods, * * * an elimination of price competition based on differences in labor standards is the objective of any national labor organization. But this effect on competition has not been considered to be the kind of curtailment of price competition prohibited by the Sherman Act.'5 310 U.S., at 503—504, 60 S.Ct., at 997—998.
51
Apex was followed by the Court in United States v. Hutcheson, supra, which has been recognized as a landmark case. Mr. Justice Frankfurter, after an extensive review of the history of the application of the antitrust laws to labor unions, concluded, for the Court, that 'whether trade union conduct constitutes a violation of the Sherman Law is to be determined only by reading the Sherman Law and § 20 of the Clayton Act and the Norris-LaGuardia Act as a harmonizing text of outlawry of labor conduct.' 312 U.S., at 231, 61 S.Ct., at 466. The Court then went on to hold: 'So long as a union acts in its self-interest and does not combine with nonlabor groups,6 the licit and the illicit * * * are not to be distinguished by any judgment regarding the wisdom or unwisdom, the rightness or wrongness, the selfishness or unselfishness of the end of which the particular union activities are the means.' 312 U.S., at 232, 61 S.Ct., at 466.
52
In Allen Bradley Co. v. Local Union No. 3, Intern. Broth. of Elec. Workers, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939, the only relevant case in this area since Hutcheson, the Court reaffirmed the Hutcheson holding 'that a union's exemption from the Sherman Act is not to be determined by a judicial 'judgment regarding the wisdom or unwisdom, the rightness or wrongness, the selfishness or unselfishness of the end of which the particular union activities are the means." 325 U.S. at 810—811, 65 S.Ct., at 1540. The Court, however, held that the Union was subject to Sherman Act liability on the facts of the case as there were 'industry-wide understandings, looking not merely to terms and conditions of employment but also to price and market control. Agencies were set up composed of representatives of all three groups (the union-contractor-manufacturer combination) to boycott recalcitrant local contractors and manufacturers and to bar from the (New York City) area equipment manufactured outside its boundaries.' 325 U.S., at 799—800, 65 S.Ct., at 1535. And 'this combination of business men' 'intended to and did restrain trade in and monopolize the supply of electrical equipment in the New York City area to the exclusion of equipment manufactured in and shipped from other states, and did also control its price and discriminate between its would-be customers.' 325 U.S., at 800—801, 65 S.Ct., at 1536. Thus Allen Bradley involved two elements: (1) union participation in price fixing and market allocation, with the only union interest being the indirect prospect that these anticompetitive devices might increase employers' profits which might then trickle down to the employees, (2) accomplished by the union's joining a combination or conspiracy of the employers.7
53
To round out this history it should be noted that, while rejecting attempts to restrict or eliminate the labor exemption from the antitrust laws,8 Congress, in the 1947 Taft-Hartley Act, 61 Stat. 136, 29 U.S.C. § 141 et seq. (1958 ed.), and the 1959 Landrum-Griffin Act, 73 Stat. 519, 29 U.S.C. § 401 et seq. (1958 ed., Supp. V), has taken steps to proscribe union activities which, in its legislative judgment, it considers to be detrimental to the public good. Consistent, however, with its policy of not turning the lawfulness of union conduct on subjective judgments of purpose or effect, a policy expressed in §§ 6 and 20 of the Clayton Act and in the Norris-LaGuardia Act, Congress did this by making unlawful certain specific union activities under the National Labor Relations Act. Congress, for example, has curbed the secondary boycott in § 8(b)(4)(B) of the National Labor Relations Act, preserving from condemnation certain secondary activities deemed legitimate.9 The jurisdictional strike is regulated by § 8(b)(4)(D) in conjunction with § 10(k) of the Act.10 Union opposition to automation has been regulated to the limited extent Congress wished to do so by § 8(b)(6) of the Act.11 Strikes and pressure by minority unions for organization or recognition are controlled by §§ 8(b)(4)(C) and 8(b)(7) of the Act.12 Union restrictions on contracting out and subcontracting of work are delineated by § 8(e) of the Act.13 For the issue presently before us, it is most significant that in enacting this last prohibition, Congress in the exercise of its legislative judgment, specifically excepted the unusual situations existing in the garment and building industries. Such exceptions for particular industries which may be proper subjects of legislative discretion, would, of course, be most difficult for courts to make in employing a broad proscription like the Sherman Act.
III.
54
In my view, this history shows a consistent congressional purpose to limit severely judicial intervention in collective bargaining under cover of the wide umbrella of the antitrust laws, and, rather, to deal with what Congress deemed to be specific abuses on the part of labor unions by specific proscriptions in the labor statutes. I believe that the Court should respect this history of congressional purpose and should reaffirm the Court's holdings in Apex and Hutcheson which, unlike earlier decisions, gave effect to, rather than frustrated, the congressional design. The sound approach of Hutcheson is that the labor exemption from the antitrust laws derives from a synthesis of all pertinent congressional legislation—the nature of the Sherman Act itself,14 §§ 6 and 20 of the Clayton Act, the Norris-LaGuardia Act, the Fair Labor Standards Act,15 the Walsh-Healey16 and Davis-Bacon17 Acts, and the Wagner Act with its Taft-Hartley and Landrum-Griffin amendments. This last statute, in particular, provides that both employers and unions must bargain over 'wages, hours, and other terms and conditions of employment.' 29 U.S.C. § 158(a)(5), (b)(3), (d) (1958 ed.). Following the sound analysis of Hutcheson, the Court should hold that, in order to effectuate congressional intent, collective bargaining activity concerning mandatory subjects of bargaining under the Labor Act is not subject to the antitrust laws.18 This rule flows directly from the Hutcheson holding that a union acting as a union, in the interests of its members, and not acting to fix prices or allocate markets in aid of an employer conspiracy to accomplish these objects, with only indirect union benefits, is not subject to challenge under the antitrust laws. To hold that mandatory collective bargaining is completely protected would effectuate the congressional policies of encouraging free collective bargaining, subject only to specific restrictions contained in the labor laws, and of limiting judicial intervention in labor matters via the antitrust route—an intervention which necessarily under the Sherman Act places on judges and juries the determination of 'what public policy in regard to the industrial struggle demands.' Duplex Printing Press Co. v. Deering, supra, 254 U.S., at 485, 41 S.Ct., at 183 (dissenting opinion of Mr. Justice Brandeis). See Winter, Collective Bargaining and Competition: The Application of Antitrust Standards to Union Activities, 73 Yale L.J. 14 (1963).
55
Section 6 of the Clayton Act made it clear half a century ago that it is not national policy to force workers to compete in the 'sale' of their labor as if it were a commodity or article of commerce. The policy was confirmed and extended in the subsequent Norris-LaGuardia Act. Other federal legislation establishing minimum wages and maximum hours takes labor standards out of competition. The Fair Labor Standards Act, 52 Stat. 1060, as amended, 29 U.S.C. §§ 201—219 (1958 ed.), clearly states that the existence of 'labor conditions' insufficient for a 'minimum standard of living * * * constitutes an unfair method of competition in commerce.' 29 U.S.C. at § 202(a). Moreover, this Court has recognized that in the Walsh-Healey Act, 49 Stat. 2036, as amended, 41 U.S.C. §§ 35—45 (1958 ed.), Congress brought to bear the 'leverage of the Government's immense purchasing power to raise labor standards' by eliminating substandard producers from eligibility for public contracts. Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 507, 63 S.Ct. 339, 342. See also Davis-Bacon Act, 46 Stat. 1494, 40 U.S.C. § 276a (1958 ed.). The National Labor Relations Act itself clearly expresses one of its purposes to be 'the stabilization of competitive wage rates and working conditions within and between industries.' 29 U.S.C. § 151. In short, business competition based on wage competition is not national policy and 'the mere fact of such restrictions on competition does not * * * bring the parties * * * within the condemnation of the Sherman Act.' Apex Hosiery Co. v. Leader, supra, 310 U.S., at 503, 60 S.Ct., at 997.
56
The National Labor Relations Act also declares it to be policy of the United States to promote the establishment of wages, hours, and other terms and conditions of employment by free collective bargaining between employers and unions. The Act further provides that both employers and unions must bargain about such mandatory subjects of bargaining. This national scheme would be virtually destroyed by the imposition of Sherman Act criminal and civil penalties upon employers and unions engaged in such collective bargaining. To tell the parties that they must bargain about a point but may be subject to antitrust penalties if they reach an agreement is to stultify the congressional scheme.
57
Moreover, mandatory subjects of bargaining are issues as to which union strikes may not be enjoined by either federal or state courts.19 To say that the union can strike over such issues but that both it and the employer are subject to possible antitrust penalties for making collective bargaining agreements concerning them is to assert that Congress intended to permit the parties to collective bargaining to wage industrial warfare but to prohibit them from peacefully settling their disputes. This would not only be irrational but would fly in the face of the clear congressional intent of promoting 'the peaceful settlement of industrial disputes by subjecting labormanagement controversies to the mediatory influence of negotiation.' Fibreboard Paper Prods. Corp. v. National Labor Relations Board, 379 U.S. 203, 211, 85 S.Ct. 398, 403, 13 L.Ed.2d 233.
58
Congress has also recognized that some labor organizations seek, as in Pennington, through industry-wide bargaining, to eliminate differences in labor standards among employers. This was common knowledge in 1935 when the Wagner Act was enacted. The aims and practices of unions engaging in industry-wide bargaining were well known in 1947 at the time of the Taft-Hartley revision. Then and on subsequent occasions Congress refused to enact bills to restrict or prohibit industry-wide bargaining. See, e.g., H.R. 3020, 80th Cong., 1st Sess., §§ 2(16), 9(f)(1), 12(a)(3)(A), 12(a)(4), H.R.Rep.No.245, 80th Cong., 1st Sess., 24, 73; note 8, supra, and citations contained therein; H.R. 8449, 82d Cong.2d Sess. Nor can it be seriously argued that multi-employer bargaining, as in Jewel Tea, introduces an illegal element or is otherwise opposed to the national labor policy. Indeed, this Court to implement congressional policy sanctioning multi-employer bargaining, permitted employers to resort, under certain circumstances, to lockouts to protect the integrity of the multi-employer bargaining unit. See National Labor Relations Board v. Truck Drivers Local Union No. 449, etc., 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676; National Labor Relations Board v. Brown, 380 U.S. 278, 85 S.Ct. 980.20 The wisdom of permitting industry-wide and multi-employer bargaining is for Congress to decide, unless this Court is to return to the discredited approach of the majority in Duplex and substitute its notion for that of Congress as to how unions and employers should conduct their collective bargaining.
IV.
59
The Court in Pennington today ignores this history of the discredited judicial attempt to apply the antitrust laws to legitimate collective bargaining activity, and it flouts the clearly expressed congressional intent that, since '(t)he labor of a human being is not a commodity or article of commerce,'21 the antitrust laws do not proscribe, and the national labor policy affirmatively promotes, the 'elimination of price competition based on differences in labor standards,' Apex Hosiery Co. v. Leader, supra, 310 U.S., at 503, 60 S.Ct., at 997. While purporting to recognize the indisputable fact that the elimination of employer competition based on substandard labor conditions is a proper labor union objective endorsed by our national labor policy and that, therefore, 'a union may make wage agreements with a multi-employer bargaining unit and may in pursuance of its own union interests seek to obtain the same terms from other employers,' Pennington, 381 U.S., at 665, 85 S.Ct., at 1591, the Court holds that 'a union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units.' Ibid.
60
This rule seems to me clearly contrary to the congressional purpose manifested by the labor statutes, and it will severely restrict free collective bargaining. Since collective bargaining inevitably involves and requires discussion of the impact of the wage agreement reached with a particular employer or group of employers upon competing employers, the effect of the Court's decision will be to bar a basic element of collective bargaining from the conference room. If a union and employer are prevented from discussing and agreeing upon issues which are, in the great majority of cases, at the central core of bargaining, unilateral force will inevitably be substituted for rational discussion and agreement. Plainly and simply, the Court would subject both unions and employers to antitrust sanctions, criminal as well as civil, if in collective bargaining they concluded a wage agreement and, as part of the agreement, the union has undertaken to use its best efforts to have this wage accepted by other employers in the industry. Indeed, the decision today even goes beyond this. Under settled antitrust principles which are accepted by the Court as appropriate and applicable, which were the basis for jury instructions in Pennington, and which will govern it upon remand, there need not be direct evidence of an express agreement. Rather the existence of such an agreement, express or implied, may be inferred from the conduct of the parties. See, e.g., Interstate Circuit, Inc. v. United States, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed. 610; American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575; United States v Paramount Pictures, Inc., 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260; Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 74 S.Ct. 257, 98 L.Ed. 273. Or, as my Brother Douglas, concurring in Pennington, would have it, conduct of the parties could be prima facie evidence of an illegal agreement. 381 U.S., at 673, 85 S.Ct., at 1595. As the facts of Pennington illustrate, the jury is therefore at liberty to infer such an agreement from 'clear' evidence that a union's philosophy that high wages and mechanization are desirable has been accepted by a group of employers and that the union has attempted to achieve like acceptance from other employers. For, as I have pointed out, stripped of all adjectives, this is what Pennington presents. Yet the Court today holds 'the alleged agreement between UMW and the large operators to secure uniform labor standards throughout the industry, if proved, was not exempt from the antitrust laws.' 381 U.S., at 669, 85 S.Ct., at 1592.
61
The rational thing for an employer to do, when faced with union demands he thinks he cannot meet, is to explain why, in economic terms, he believes that he cannot agree to the union requests. Indeed, the Labor Act's compulsion to bargain in good faith requires that he meaningfully address himself to the union's requests. See National Labor Relations Board v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027. A recurring and most understandable reason given by employers for their resistance to union demands is that competitive factors prevent them from accepting the union's proposed terms. Under the Court's holding today, however, such a statement by an employer may start both the employer and union on the road to antitrust sanctions, criminal and civil. For a jury may well interpret such discussion and subsequent union action as showing an implicit or secret agreement to impose uniform standards on other employers. Nor does the Court's requirement that there be 'direct or indirect evidence of the conspiracy,' 381 U.S., at 665 n. 2, 85 S.Ct., at 1591—whatever those undefined terms in the opinion may mean—provide any substantial safeguard for uninhibited collective bargaining discussions. In Pennington itself, the trial court instructed the jury that a union's unilateral actions did not subject it to antitrust sanctions, and yet the jury readily inferred a 'conspiracy' from the 'direct or indirect evidence' of the union's publicly stated policy in favor of high wages and mechanization, its collective bargaining agreement with a group of employers establishing high wages, and its attempts to obtain similar high wages from other employers.
62
Furthermore, in order to determine whether, under the Court's standard, a union is acting unilaterally or pursuant to an agreement with employers, judges and juries will inevitably be drawn to try to determine the purpose and motive of union and employer collective bargaining activities. The history I have set out, however, makes clear that Congress intended to foreclose judges and juries from roaming at large in the area of collective bargaining, under cover of the antitrust laws, by inquiry into the purpose and motive of the employer and union bargaining on mandatory subjects. Such roaming at large, experience shows, leads to a substitution of judicial for congressional judgment as to how collective bargaining should operate.
63
The case of Alco-Zander Co. v. Amalgamated Clothing Workers of America, 35 F.2d 203 (D.C.E.D.Pa.), is one example of judicial inadequacy in this sensitive economic area. That case involved a situation where the unionized garment industry in New York was being undersold by the lower-priced, nonunion garment industry of Philadelphia. The union, fearing for the future of the jobs of its members employed in the unionized New York industry, started an organizing drive in Philadelphia. A federal district court enjoined, as a violation of the antitrust laws, the union's organizational campaign which consisted of primary strikes and peaceful picketing. The court declared that 'the primary purpose of the campaign for the unionization of the Philadelphia market was the protection of the unionized markets in other states,' and that 'the object of the strikes was to put an end to all production in Philadelphia under nonunion conditions and only to permit it to be resumed if and when the manufacturers were willing to operate upon an union basis and under union wage scales.' 35 F.2d., at 205. It is clear, therefore, that the court enjoined the union's activities as antitrust violations because it believed that this purpose and object was socially and economically undesirable. Alco-Zander and other similar cases22 were almost universally condemned as striking examples of judicial interference in legitimate collective bargaining via the antitrust laws because of judge-made notions as to the economic wisdom of the union conduct. See, e.g., Berman, Labor and the Sherman Act, 248—259 (1930); Comment, 24 IllL.Rev. 925 (1930). There is no doubt that the Norris-LaGuardia Act was designed to overrule them. See H.R.Rep.No.669, 72d Cong., 1st Sess., 3—7; S.Rep.No.163, 72d Cong., 1st Sess., 9—10.
64
Congress in the Norris-LaGuardia Act and other labor statutes, as this Court recognized in Apex and Hutcheson, determined that judicial notions of the social and economic desirability of union action should not govern antitrust liability in the area of collective bargaining. The fact that a purpose-motive approach necessarily opens the door to basing criminal or civil penalties under the Sherman Act on just such a determination and to making courts the arbiters of our national labor policy is borne out not only by the history of cases like Alco-Zander but also by the cases decided today.
65
In Pennington, central to the alleged conspiracy is the claim that hourly wage rates and fringe benefits were set at a level designed to eliminate the competition of the smaller nonunion companies by making the labor cost too high for them to pay. Indeed, the trial judge charged that there was no violation of the Sherman Act in the establishing of wages and welfare payments through the national contract, 'provided' the mine workers and the major coal producers had not agreed to fix 'high' rates 'in order to drive the small coal operators out of business.' Under such an instruction, if the jury found the wage scale too 'high' it could impute to the union the unlawful purpose of putting the nonunion operators out of business. It is clear that the effect of the instruction therefore, was to invite 12 jurymen to become arbiters of the economic desirability of the wage scale in the Nation's coal industry. The Court would sustain the judgment based on this charge and thereby put its stamp of approval on this role for courts and juries.
66
The Court's approval of judges and juries determining the permissible wage scale for working men in an industry is confirmed by the Court's express statement 'there are limits to what a union or an employer may offer or extract in the name of wages,' Pennington, 381 U.S., at 665, 85 S.Ct., at 1591. To allow a jury to infer an illegal 'conspiracy' from the agreed-upon wage scale means that the jury must determine at what level the wages could be fixed without impelling the parties into the ambit of the antitrust laws. Is this not another way of saying that, via the antitrust route, a judge or jury may determine, according to its own notions of what is economically sound, the amount of wages that a union can properly ask for or that an employer can pay? It is clear, as experience shows, that judges and juries neither have the aptitude nor possess the criteria for making this kind of judgment. In Pennington, absent the alleged conspiracy, would the wage rate and fringe benefits have been lower? Should they have been lower? If Pennington were an action for injunctive relief, what would be the appropriate remedy to reach the labor cost which is at the heart of the alleged antitrust violation? A judicial determination of the wage rate? A judicial nullification of the existing rate with a direction to negotiate a lower one? I cannot believe that Congress has sanctioned judicial wage control under the umbrella of the Sherman Act, for, absent a national emergency,23 Congress has never legislated wage control in our free-enterprise economy.
67
The history I have set out makes clear that Congress intended to foreclose judges and juries from making essentially economic judgments in antitrust actions by determining whether unions or employers had good or bad motives for their agreements on subjects of mandatory bargaining. Moreover, an attempted inquiry into the motives of employers or unions for entering into collective bargaining agreements on subjects of mandatory bargaining is totally artificial. It is precisely in this area of wages, hours, and other working conditions that Congress has recognized that unions have a substantial, direct, and basic interest of their own to advance.
68
As I have discussed, the Court's test is not essentially different from the discredited purpose-motive approach. Only rarely will there be direct evidence of an express agreement between a union and an employer to impose a particular wage scale on other employers. In most cases, as was true of Pennington, the trial court will instruct the jury that such an illegal agreement may be inferred from the conduct—'indirect evidence'—of the union and employers. To allow a court or a jury to infer an illegal agreement from collective bargaining conduct inevitably requires courts and juries to analyze the terms of collective bargaining agreements and the purposes and motives of unions and employers in agreeing upon them. Moreover, the evidence most often available to sustain antitrust liability under the Court's theory would show, as it did in Pennington, simply that the motives of the union and employer coincide—the union seeking high wages and protection from low-wage, nonunion competition, and the employer who pays high wages seeking protection from competitors who pay lower wages. When there is this coincidence of motive, does the illegality of the 'conspiracy' turn on whether the Union pursued its goal of a uniform wage policy through strikes and not negotiation? As I read the Court's opinion this is precisely what the result turns on and thus unions are forced, in order to show that they have not illegally 'agreed' with employers, to pursue their aims through strikes and not negotiations. Yet, it is clear that such a result was precisely what the National Labor Relations Act was designed to prevent. The only alternative to resolution of collective bargaining issues by force available to the parties under the Court's holding is the encouragement of fraud and deceit. An employer will be forced to take a public stand against a union's wage demands, even if he is willing to accept them, lest a too ready acceptance be used by a jury to infer an agreement between the union and employer that the same wages will be sought from other employers. Yet, I have always thought that in collective bargaining, even more than in other areas of contractual agreement, the objective is open covenants openly arrived at.
69
Furthermore, I do not understand how an inquiry can be formulated in terms of whether the union action is unilateral or is a consequence of a 'conspiracy' with employers independently of the economic terms of the collective bargaining agreement. The agreement must be admitted into evidence and the Court holds that its economic consequences are relevant. In the end, one way or another, the entire panoply of economic fact becomes involved, and judges and juries under the Court's view would then be allowed to speculate about why a union bargained for increased compensation, or any other labor standard within the scope of mandatory bargaining. It is precisely this type of speculation that Congress has rejected.
70
The plain fact is that is makes no sense to turn antitrust liability of employers and unions concerning subjects of mandatory bargaining on whether the union acted 'unilaterally' or in 'agreement' with employers. A union can never achieve substantial benefits for its members through unilateral action; I should have thought that the unsuccessful history of the Industrial Workers of the World, which eschewed collective bargaining and espoused a philosophy of winning benefits by unilateral action, proved this beyond question. See Dulles, Labor in America 208—223 (1949); Chaplin, Wobbly (1948). Furthermore, I cannot believe that Congress, by adopting the antitrust laws, put its stamp of approval on this discredited IWW philosophy of industrial relations; rather, in the Clayton Act and the labor statutes, Congress has repudiated such a philosophy. Our national labor policy is designed to encourage the peaceful settlement of industrial disputes through the negotiation of agreements between employers and unions. Unions cannot, as the history of the IWW shows, successfully retain employee benefits by unilateral action; nor can employers be assured of continuous operation without contractual safeguards. The history of labor relations in this country shows, as Congress has recognized, that progress and stability for both employers and employees can be achieved only through collective bargaining agreements involving mutual rights and responsibilities.
71
This history also shows that labor contracts establishing more or less standardized wages, hours, and other terms and conditions of employment in a given industry or market area are often secured either through bargaining with multi-employer associations or through bargaining with market leaders that sets a 'pattern' for agreements on labor standards with other employers. These are two similar systems used to achieve the identical result of fostering labor peace through the negotiation of uniform labor standards in an industry. Yet the Court makes antitrust liability for both unions and employers turn on which of these two systems is used. It states that uniform wage agreements may be made with multi-employer units but an agreement cannot be made to affect employers outside the formal bargaining unit. I do not believe that the Court understands the effect of its ruling in terms of the practical realities of the automobile, steel, rubber, shipbuilding, and numerous other industries which follow the policy of pattern collective bargaining. See Chamberlain, Collective Bargaining 259—263 (1951); note 20, supra. I also do not understand why antitrust liability should turn on the form of unit determination rather than the substance of the collective bargaining impact on the industry.
72
Finally, it seems clear that the essential error at the core of the Court's reasoning is that it ignores the express command of Congress that '(t)he labor of a human being is not a commodity or article of commerce,'24 and therefore that the antitrust laws do not prohibit the 'elimination of price competition based on differences in labor standards.' Apex Hosiery Co. v. Leader, supra, 310 U.S. at 503, 60 S.Ct. at 997. This is made clear by a simple question that the Court does not face. Where there is an 'agreement' to seek uniform wages in an industry, in what item is competition restrained? The answer to this question can only be that competition is restrained in employee wage standards. That is, the union has agreed to restrain the free competitive market for labor by refusing to provide labor to other employers below the uniform rate. Under such an analysis, it would seem to follow that the existence of a union itself constitutes a restraint of trade, for the object of a union is to band together the individual workers in an effort, by common action, to obtain better wages and working conditions—i.e., to obtain a higher price for their labor. The very purpose and effect of a labor union is to limit the power of an employer to use competition among workingmen to drive down wage rates and enforce substandard conditions of employment. If competition between workingmen to see who will work for the lowest wage is the ideal, all labor unions should be eliminated. Indeed the Court itself apparently realizes that its holding that the antitrust laws are violated when a labor union agrees with employers not to compete on wages is premised on the belief that labor is a commodity and that this premise leads to the logical conclusion that unions themselves restrain trade in this commodity. This is the only reason I can imagine for the Court's felt need, in 1965, to assert that '(t)he antitrust laws do not bar the existence and operation of labor unions as such.' Pennington, 381 U.S., at 661, 85 S.Ct., at 1589. (Emphasis added.)
73
As I have already discussed, however, if one thing is clear, it is that Congress has repudiated the view that labor is a commodity and thus there should be competition to see who can supply it at the cheapest price. See pp. 1615—1616, supra. The kind of competition which is suppressed by employer-union agreement on uniform wages can only be competition between unions to see which union will agree to supply labor at a lower rate, or competition between employers in the sale of their products based on differences in labor costs. Neither type of 'suppression,' I submit, can be supported as a restraint of trade condemned by the antitrust laws. No one, I think, believes that Congress intended that there be an economic system under which unions would compete with each other to supply labor at the lowest possible cost. It is equally clear that Congress did not intend that competition among manufacturers should be carried on, not on the basis of their relative efficiency or ability to produce what the consumer demands, but on their ability to operate at substandard wage rates. One of the important social advantages of competition mandated by the antitrust laws is that it rewards the most efficient producer and thus ensures the optimum use of our economic resources. This result, as Congress recognized, is not achieved by creating a situation in which manufacturers compete on the basis of who pays the lowest wages. As this Court stated in Apex Hosiery Co. v. Leader, supra, 310 U.S. at 503—504, 60 S.Ct. at 997—998, the 'elimination of price competition based on differences in labor standards is the objective of any national labor organization. But this effect on competition has not been considered to be the kind of curtailment of price competition prohibited by the Sherman Act.'
74
The assumption running through the Court's opinion in Pennington, as well as the opinion of my Brother DOUGLAS, is that giving full scope to the congressional exemption of labor unions from the antitrust laws will operate to the advantage of large employers and big unions to the prejudice of small employers. Although I cannot see how that should affect the result reached on the basis of congressional intent even if the assumption were true, see Hunt v. Crumboch, 325 U.S. 821, 825, n. 1, 65 S.Ct. 1545, 1547, 89 L.Ed. 1954. I feel compelled to note that this assumption is not accurate and is belied by the actualities of industrial relations. Experience in this area shows that frequently unions first organize the small and weak employers. These small employers are understandably afraid that unless other, larger employers are also organized, effective competition will be impossible. They will thus often seek to have the union attempt to organize and bargain for similar labor standards with their larger competitors so that the requirement to pay high union wages will not force the small businessmen to close down their enterprises.
75
The Court's holding in Pennington today flies in the face of Apex and Hutcheson and restrains collective bargaining in the same way as did the holding of the majority in Duplex—a holding which Congress has expressly repudiated in favor of Mr. Justice Brandeis' dissenting views. It represents contemporary manifestations of the reluctance of judges to give full effect to congressional purpose in this area and the substitution of judges' views for those of Congress as to how free collective bargaining should operate.25
V.
76
The judicial expressions in Jewel Tea represent another example of the reluctance of judges to give full effect to congressional purpose in this area and the substitution by judges of their views for those of Congress as to how free collective bargaining should operate. In this case the Court of Appeals would have held the Union subject to the Sherman Act's criminal and civil penalties because in the court's social and economic judgment, the determination of the hours at which meat is to be sold is a 'proprietary' matter within the exclusive control of management and thus the Union had no legitimate interest in bargaining over it. My Brother DOUGLAS, joined by Mr. Justice BLACK and Mr. Justice CLARK, would affirm this judgment apparently because the agreement was reached through a multi-employer bargaining unit. But, as I have demonstrated above, there is nothing even remotely illegal about such bargaining. Even if an independent conspiracy test were applicable to the Jewel Tea situation, the simple fact is that multi-employer bargaining conducted at arm's length does not constitute union abetment of a business combination. It is often a self-defensive form of employer bargaining designed to match union strength. See National Labor Relations Board v. Truck Drivers Union No. 449, etc., supra; National Labor Relations Board v. Brown, supra.
77
My Brother WHITE, joined by THE CHIEF JUSTICE and Mr. Justice BRENNAN, while not agreeing with my Brother DOUGLAS, would reverse the Court of Appeals. He also, however, refuses to give full effect to the congressional intent that judges should not, under cover of the Sherman Act umbrella, substitute their economic and social policies for free collective bargaining. My Brother WHITE recognizes that the issue of the hours of sale of meat concerns a mandatory subject of bargaining based on the trial court's findings that it directly affected the hours of work of the butchers in the self-service markets, and therefore, since there was a finding that the Union was not abetting an independent employer conspiracy, he joins in reversing the Court of Appeals. In doing so, however, he apparently draws lines among mandatory subjects of bargaining, presumably based on a judicial determination of their importance to the worker, and states that not all agreements resulting from collective bargaining based on mandatory subjects of bargaining are immune from the antitrust laws, even absent evidence of union abetment of an independent conspiracy of employers. Following this reasoning, my Brother WHITE indicates that he would sustain a judgment here, even absent evidence of union abetment of an independent conspiracy of employers, if the trial court had found 'that self-service markets could actually operate without butchers, at least for a few hours after 6 p.m., that no encroachment on butchers' work would result and that the workload of butchers during normal working hours would not be substantially increased * * *.' 381 U.S., at 692, 85 S.Ct., at 1603. Such a view seems to me to be unsupportable. It represents a narrow, confining view of what labor unions have a legitimate interest in preserving and thus bargaining about. Even if the self-service markets could operate after 6 p.m., without their butchers and without increasing the work of their butchers at other times, the result of such operation can reasonably be expected to be either that the small, independent service markets would have to remain open in order to compete, thus requiring their union butchers to work at night, or that the small, independent service markets would not be able to operate at night and thus would be put at a competitive disadvantage.26 Since it is clear that the large, automated self-service markets employ fewer butchers per volume of sales than service markets do, the Union certainly has a legitimate interest in keeping service markets competitive so as to preserve jobs. Job security of this kind has been recognized to be a legitimate subject of union interest. See Order of Railroad Telegraphers v. Chicago & N.W.R. Co., 362 U.S. 330, 80 S.Ct. 761, 4 L.Ed.2d 774; Local 24 of the Intern. Broth. of Teamsters, etc. v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312, 362 U.S. 605, 80 S.Ct. 923, 4 L.Ed.2d 987; United States v. Intern. Hod Carriers, etc., 313 U.S. 539, 61 S.Ct. 839, 85 L.Ed. 1508, affirming United States v. Carrozzo, 37 F.Supp. 191 (D.C.N.D.Ill.); United States v. American Federation of Musicians, 318 U.S. 741, 63 S.Ct. 665, 87 L.Ed. 1120, affirming 47 F.Supp. 304 (D.C.N.D.Ill); National Ass'n of Window Glass Mfrs. v. United States, 263 U.S. 403, 44 S.Ct. 148, 68 L.Ed. 358; cf. Intern. Broth. of Teamsters, etc., Union, Local 309 v. Hanke, 339 U.S. 470, 475, 70 S.Ct. 773, 775, 94 L.Ed. 995 (opinion of Mr. Justice Frankfurter); see also California Sportswear & Dress Assn., Inc., 54 F.T.C. 835. As I have previously stated: '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.' Los Angeles Meat & Provision Drivers Union, Local 626 v. United States, 371 U.S. 94, 103, 104, 83 S.Ct. 162, 168, 9 L.Ed.2d 150 (concurring opinion). The direct interest of the union in not working undesirable hours by curtailing all business at those hours is, of course, a far cry from the indirect 'interest' in Allen Bradley in fixing prices and allocating markets solely to increase the profits of favored employers.
78
Indeed, if the Union in Jewel Tea were attempting to aid the small service butcher shops and thus save total employment against automation, perhaps at a necessarily reduced wage scale, the case would present the exact opposite union philosophy from that of the Mine Workers in Pennington. Putting the opinion of the Court in Pennington together with the opinions of my Brothers DOUGLAS and WHITE in Jewel Tea, it would seem that unions are damned if their collective bargaining philosophy involves acceptance of automation (Pennington) and are equally damned if their collective bargaining philosophy involves resistance to automation (Jewel Tea). Again, the wisdom of a union adopting either philosophy is not for judicial determination. This Court recently stated that '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." Ferguson v. Skrupa, 372 U.S. 726, 731—732, 83 S.Ct. 1028, 1032, 10 L.Ed.2d 93. I likewise see no reason why this Court should go back to the time when judges determined 'according to their own economic and social views whether the damage inflicted on an employer in an industrial struggle was damnum absque injuria, because an incident of trade competition, or a legal injury, because in their opinion, economically and socially objectionable.' Duplex Printing Press Co. v. Deering, supra, 254 U.S. at 486, 41 S.Ct. at 183 (dissenting opinion of Mr. Justice Brandeis).
VI.
79
Moreover, while these cases involve suits against unions, we should not overlook the fact that if unions are held liable under the antitrust laws for collective bargaining activities concerning mandatory subjects, then the employer parties to this mandatory collective bargaining would also be subject to antitrust penalties, criminal and civil. It would seem the height of unfairness so to panalize employers for the discharge of their statutory duty to bargain on wages, hours, and other terms and conditions of employment, which duty, this Court has held, requires the employer to enter into a signed contract with the union embodying the collective bargaining terms agreed upon. See H. J. Heinz Co. v. National Labor Relations Board, 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309. The unfairness to employers of this situation is aptly illustrated by the record facts of Pannington. From 1930 until the formation of the Bituminous Coal Operators' Association and the negotiation of a uniform wage agreement between the Association and the union in 1950, bargaining in the coal industry was highlighted by bitter and protracted negotiations. Costly strikes were a recurring phenomenon and government seizure of the mines was characteristic of most of the period. Unfair labor practice charges were often exchanged and lawsuits resulting from bargaining differences were on court dockets continuously. In 1934, 400,000 miners struck for one week. In 1939, a five-week strike ended only after presidential intervention. In 1941, the union struck southern mines after those operators withdrew from negotiations in which the union was seeking to eliminate a regional wage differential. Shortly thereafter the union struck the so-called 'captive' mines (mines which produce coal to be used in the processing of other products, mainly steel). One hundred thousand other miners struck in sympathy with the captive mine employees. During negotiations in 1943, there were a number of strikes over a six-month period and the Government twice seized the struck mines. Similarly in 1945 a number of strikes following a breakdown in negotiations resulted in government seizure of 235 mines. When the Government seized the mines once again in 1946 because of a breakdown in negotiations over a welfare fund, a settlement was reached only through the active intervention of the Secretary of the Interior, who himself negotiated the beginning of the program of welfare fund benefits.
80
It was the opinion of many employers and neutral observers of the scene that these chaotic collective bargaining conditions were a result, at least in part, of the disorganized bargaining on the employer side. With each new effort at negotiations the operators had attempted to form a committee with various subcommittees to receive and present bargaining proposals. There was, however, no permanent organization to unify the operators' bargaining position and thereby to attempt to maintain peaceful and stable labor relations. The amorphous and ad hoc nature of the employers' bargaining organization was felt to have subjected the operators to whipsawing by the union and thus impaired serious, good faith and business-like bargaining. It was to try to correct this situation that the Association was formed. The Association is open to any coal operator who wishes to participate in the negotiations through it. Since this change in 1950, collective bargaining has been, to a marked degree, stabilized in the industry. There have been no governmental seizures or nationwide strikes. Collective bargaining problems have not ended as a matter of course in Labor Board or court proceedings, or in governmental seizure or other intervention. While the negotiations have not always been easy and many difficult issues have arisen, the procedure for solving them has gone from the earlier jungle-type economic warfare to the reasoned and rational process of the conference table. I cannot believe that Congress, which has manifested a clear general purpose of promoting labor peace and stability, and, in particular, has a long history of attention to collective bargaining in coal,27 one of our basic industries, intended that these employer efforts to perfect a solid front in bargaining with the miners' union should have the effect of subjecting the employers, as well as the union, to the penalties of the antitrust laws. To apply the antitrust laws at this late date to such activities would endanger the stability which now characterizes collective bargaining in the coal industry and other basic industries with similar collective bargaining histories. It is in recognition of this fact that Congress has on a number of occasions refused to enact legislation that would curtail industry-wide bargaining28 or would make the antitrust laws generally applicable to collective bargaining activity.29
VII.
81
My view that Congress intended that collective bargaining activity on mandatory subjects of bargaining under the Labor Act not be subject to the antitrust laws does not mean that I believe that Congress intended that activity involving all nonmandatory subjects of bargaining be similarly exempt. The direct and overriding interest of unions in such subjects as wages, hours, and other working conditions, which Congress has recognized in making them subjects of mandatory bargaining, is clearly lacking where the subject of the agreement is pricefixing and market allocation. Moreover, such activities are at the core of the type of anticompetitive commercial restraint at which the antitrust laws are directed.
82
Nor does my view mean that where a union operates as a businessman, exercising a proprietary or ownership function, it is beyond the reach of the antitrust laws merely because it is a union. On the contrary, the labor exemption is inapplicable where the union acts not as a union but as an entrepreneur. See, e.g., Streiffer v. Seafarers Sea Chest Corp., 162 F.Supp. 602 (D.C.E.D.La.); United States v. Seafarers Sea Chest Corp., 1956 CCH Trade Cases 68,298 (D.C.E.D.N.Y.). Therefore, if a union is found by sufficient evidence and under proper instructions to have participated as a proprietor in actions violative of the antitrust laws, it is no more shielded from antitrust sanctions than any other business participant.
83
In Pennington, there were allegations that a part of the conspiracy of the large coal operators consisted of collusive bidding on the TVA spot market of West Kentucky Coal Company, Nashville Coal Company, and two other coal operators, for which the Union allegedly shared responsibility. It was asserted that the effect of this alleged collusive bidding was to drive down the prices on the spot market and thereby injure the small coal operators. Although the Court of Appeals apparently accepted this position, it did not deal directly with the question of whether the evidence was sufficient to show the Union's participation in the alleged scheme. Rather, the Court of Appeals relied upon the fact that the Union was a major stockholder in West Kentucky and has substantial interests in Nashville. It examined the origin and growth of the union interest in these two companies and concluded: 'It was not unreasonable for the jury to conclude from these facts that it was the purpose of the UMW to have a very material voice, if not the dominant one, in determining the policies and operations of these two major coal companies, which, as is hereinafter pointed out are charged with playing an important role in the alleged conspiracy.' 325 F.2d 804, 814. This, it appears, is as near as the Court of Appeals came to passing upon the sufficiency of the evidence connecting the Union with the alleged collusive spot market bidding and in effect is a holding that the ownership of a controlling or substantial interest in a company which violates the antitrust laws subjects the owner of that interest to personal antitrust liability. In my view, this is clearly not the law. The ownership of a controlling or substantial interest in a company which conspires with others in violation of the antitrust laws does not in itself impose antitrust liability on the owner. Hartford-Empire Co. v. United States, 323 U.S. 386, 403, 65 S.Ct. 373, 382, 89 L.Ed. 322; Buckeye Powder Co. v. E. I. du Pont de Nemours P. Co., 223 other grounds, 248 U.S. 55, 39 S.Ct. 38, 63 L.Ed. 123; Union Pacific Coal Co. v. F. 881, 885—886 (C.A.3d Cir.), aff'd on United States, 173 F. 737 (C.A.8th Cir.). Rather the owner must be shown to have participated knowingly and actively in the alleged illegal activity. See United States v. Wise, 370 U.S. 405, 416, 82 S.Ct. 1354, 1361, 8 L.Ed.2d 590. Cf. Coronado Coal Co. v. United Mine Workers, 268 U.S. 295, 299—305, 45 S.Ct. 551, 69 L.Ed. 963; United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 393—396, 42 S.Ct. 570, 577—578, 66 L.Ed. 975.
84
Moreover, the trial court erred in its instruction to the jury on this issue. It correctly instructed the jury that union ownership of a coal company did not violate the law. However, it erroneously refused to instruct the jury that the Union's financial stake in the two coal companies did not of itself show participation in an illegal conspiracy, if there was one, and that the Union must have been shown to have participated through being party to an overall plan which included the spot-market bidding or through its participation in the particular practices complained of. Thus it is clear that the judgment against the Union cannot stand on the basis of this part of the case.
85
Finally, my conclusion that unions and employers are exempt from the operations of the antitrust laws for activities involving subjects of mandatory bargaining is based solely on congressional statutes which I believe clearly grant such an exemption and not on any views past or present as to the economic desirability of such an exemption. Whether it is wise or sound public policy for this exemption to continue to exist in its present form, or at all, or whether the exemption gives too much power to labor organizations, is solely for Congress to determine. The problem of the application of the antitrust laws to collective bargaining is but another aspect of the question of whether it is sound public policy to recognize or to limit the 'right of industrial combatants to push their struggle to the limits of the justification of self-interest.' Duplex Printing Press Co. v. Deering, supra, 254 U.S. at 488, 41 S.Ct. at 184 (dissenting opinion of Mr. Justice Brandeis).
86
On this issue I am in agreement with the Court in Hunt v. Crumboch, supra, 325 U.S. at 825, n. 1, 65 S.Ct. at 1547: 'That which Congress has recognized as lawful, this Court has no constitutional power to declare unlawful, by arguing that Congress has accorded too much power to labor organizations.'
87
For the reasons expressed above, I dissent from the opinion of the
88
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice CLARK concur, dissenting.
89
If we followed Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939,* we would hold with the Court of Appeals that this multiemployer agreement with the union not to sell meat between 6 p.m. and 9 a.m. was not immunized from the antitrust laws and that respondent's evidence made out a prima facie case that it was in fact a violation of the Sherman Act.
90
If, in the present case, the employers alone agreed not to sell meat from 6 p.m. to 9 a.m., they would be guilty of an anticompetitive practice, barred by the antitrust laws. Absent an agreement or conspiracy, a proprietor can keep his establishment open for such hours as he chooses. Cf. Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 85 S.Ct. 994. My Brother WHITE recognizes, as he must, that the agreement in this case has an 'effect on competition (that) is apparent and real' and that it is an 'obvious restraint on the product market,' ante, p. 1603. That Jewel has been coerced by the unions into respecting this agreement means that Jewel cannot use convenience of shopping hours as a means of competition. As the Court of Appeals pointed out, 331 F.2d, at 550, there is nothing procompetitive about this agreement. Cf. Board of Trade of City of Chicago v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683.
91
At the conclusion of respondent's case, the District Court dismissed Associated and Bromann from the action, which was tried without a jury, on the ground that there was no evidence of a conspiracy between Associated and the unions. But in the circumstances of this case the collective bargaining agreement itself, of which the District Court said there was clear proof, was evidence of a conspiracy among the employers with the unions to impose the marketing-hours restriction on Jewel via a strike threat by the unions. This tended to take from the merchants who agreed among themselves their freedom to work their own hours and to subject all who, like Jewel, wanted to sell meat after 6 p.m. to the coercion of threatened strikes, all of which if done in concert only by businessmen would violate the antitrust laws. See Fashion Originators' Guild of America v. Federal Trade Comm'n, 312 U.S. 457, 465, 61 S.Ct. 703, 85 L.Ed. 949
92
In saying that there was no conspiracy, the District Court failed to give any weight to the collective bargaining agreement itself as evidence of a conspiracy and to the context in which it was written. This Court makes the same mistake. We said in Allen Bradley Co. v. Local Union No. 3, supra, 325 U.S. at 808, 65 S.Ct. at 1539, '* * * we think Congress never intended that unions could, consistently with the Sherman Act, aid non-labor groups to create business monopolies and to control the marketing of goods and services.' Here the contract of the unions with a large number of employers shows it was planned and designed not merely to control but entirely to prohibit 'the marketing of goods and services' from 6 p.m. until 9 a.m. the next day. Some merchants relied chiefly on price competition to draw trade; others employed courtesy, quick service, and keeping their doors open long hours to meet the convenience of customers. The unions here induced a large group of merchants to use their collective strength to hurt others who wanted the competitive advantage of selling meat after 6 p.m. Unless Allen Bradley is either overruled or greatly impaired, the unions can no more aid a group of businessmen to force their competitors to follow uniform store marketing hours than to force them to sell at fixed prices. Both practies take away the freedom of traders to carry on their business in their own competitive fashion.
93
My Brother WHITE'S conclusion that the concern of the union members over marketing hours is 'immediate and direct' depends upon the there being a necessary connection between marketing hours and working hours. That connection is found in the District Court's finding that 'in stores where meat is sold at night it is impractical to operate without either butchers or other employees.' 215 F.Supp. 839, 846. It is, however, undisputed that on some nights Jewel does so operate in some of its stores in Indiana, and even in Chicago it sometimes operates without butchers at night in the sale of fresh poultry and sausage, which are exempt from the union ban.
94
It is said that even if night self-service could be carried on without butchers, still the union interest in store hours would be immediate and direct because competitors would have to stay open too or be put at a disadvantage—and some of these competitors would be non-self-service stores that would have to employ union butchers at night. But Allen Bradley forecloses such an expansive view of the labor exemption to the antitrust laws.
1
The practice in the Chicago area is for the employers and the butchers to execute separate, but similar, collective bargaining agreements for self-service and service markets. A self-service market is 'one in which fresh beef, veal, lamb, mutton or pork are available for sale on a prepackage self-service basis.' Semi-self-service markets, those in which fresh meat is made available on a prepackaged basis but there is also a service counter offering custom cutting for those who prefer it, are governed by the self-service contract. Service markets are those in which no fresh meat is made available on a self-service basis.
2
Action upon the separate petition of Associated and Bromann, No. 321 Oct. Term, 1964, has been withheld, pending disposition of this case.
3
The grant of certiorari was limited to the following questions:
'1. Based on the District Court's undisturbed finding that the limitation 'was imposed after arm's length bargaining, * * * and was fashioned exclusively by the unions to serve their own interests—how long and what hours members shall work, what work they shall do, and what pay they shall receive,' whether the limitation upon market operating hours and the controversy concerning it are within the labor exemption of the Sherman Antitrust Act.
'2. Whether a claimed violation of the Sherman Antitrust Act which falls within the regulatory scope of the National Labor Relations Act is within the exclusive primary jurisdiction of the National Labor Relations Board.'
4
To be distinguished are the pre-emption cases in which the possibility that the Board may not exercise jurisdiction renders state courts no less powerless to act, see San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245—246, 79 S.Ct. 773, 3 L.Ed.2d 775. See generally, Local 20, Teamsters, etc. v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280.
5
The crucial determinant is not the form of the agreement e.g., prices or wages—but its relative impact on the product market and the interests of union members. Thus in Local 24 of Intern. Broth. of Teamsters Union v. Oliver, 358 U.S. 283, 79 S.Ct. 297, we held that federal labor policy precluded application of state antitrust laws to an employer-union agreement that when leased trucks were driven by their owners, such owner-drivers should receive, in addition to the union wage, not less than a prescribed minimum rental. Though in form a scheme fixing prices for the supply of leased vehicles, the agreement was designed 'to protect the negotiated wage scale against the possible undermining through diminution of the owner's wages for driving which might result from a rental which did not cover his operating costs.' Id., at 293—294, 79 S.Ct. at 303. As the agreement did not embody a "remote and indirect approach to the subject of wages' * * * but a direct frontal attack upon a problem thought to threaten the maintenance of the basic wage structure established by the collective bargaining contract,' id., at 294, 79 S.Ct. at 304, the paramount federal policy of encouraging collective bargaining proscribed application of the state law. See also Los Angeles Meat and Provision Drivers Union, Local 626 v. United States, 371 U.S. 94, 98, 83 S.Ct. 162, 9 L.Ed.2d 150; Milk Wagon Drivers' Union, Local No. 753 v. Lake Valley Farm Products, Inc., 311 U.S. 91, 61 S.Ct. 122. 85 L.Ed. 63.
6
One issue, for example, would be whether the restraint was unreasonable. Judicial pronouncements regarding the reasonableness of restraints on hours of business are relatively few. Some cases appear to have viewed such restraints as tantamount to limits on hours of work and thus reasonable, even though contained in agreements among competitors. Thus in Chicago Board of Trade v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683, the Court upheld a rule of a grain exchange that had the form of a restriction on prices of transactions outside regular trading hours but was characterized by the Court as a rule designed to shift transactions to the regular trading period, i.e., to limit hours of operation. The Court, per Mr. Justice Brandeis, stated:
'Every board of trade and nearly every trade organization imposes some restraint upon the conduct of business by its members. Those relating to the hours in which business may be done are common; and they make a special appeal where, as here, they tend to shorten the working day or, at least, limit the period of most exacting activity.' 246 U.S., at 241, 38 S.Ct. at 245. (Emphasis added.) See also La Due v. Teamsters & Chauffeurs Union, Local No. 43, 1946—1947 Trade Cas., 57,631 (Wis.Cir.Ct.1947); Cielesz v. Local 189, Amalgamated Meat Cutters, 25 Ill.App.2d 491, 167 N.E.2d 302 (1960).
Other cases have upheld operating-hours restraints in factual circumstances that make it seem likely that the agreement affected hours of operation and hours of work in equal measure but without stressing that fact. See Dunkel Oil Corp. v. Anich, 1944—1945 Trade Cas., 57,306 (D.C.E.D.Ill.1944); Baker v. Retail Clerks Assn., 313 Ill.App. 432, 40 N.E.2d 571 (1942); Stovall v. McCutchen, 107 Ky. 577, 54 S.W. 969, 47 L.R.A. 287 (1900).
Kold Kist, Inc. v. Amalgamated Meat Cutters, Local No. 421, 99 Cal.App.2d 191, 221 P.2d 724 (1950), held unreasonable a union-employer agreement limiting night sales of frozen poultry, which had previously been obtained from the plaintiff-distributor. The plaintiff alleged, however, that it had been several affected, since many stores had stopped carrying its products entirely due to the lack of storage facilities in which to keep the poultry during hours in which sale was prohibited, and such effects may be atypical.
The decided cases thus do not appear to offer any easy answer to the question whether in a particular case an operating-hours restraint is unreasonable.
7
In 1959, and again in 1961, new collective bargaining agreements containing the challenged provision were executed. In each instance, Jewel reserved its position with respect to this litigation.
1
For these policies, John L. Lewis, the long-time head of the Mine Workers, has been variously condemned and praised. See, e.g., Baratz, op. cit. supra, at 138—151; Folliard, op. cit. supra; Alinsky, John L. Lewis 346—372 (1949); Wechsler, Labor Baron: A Portrait of John L. Lewis (1944). Among the praise has been a Presidential Medal of Freedom, awarded on September 14, 1964, in which Mr. Lewis was cited as follows: 'Eloquent spokesman of labor, he has given voice to the aspirations of the industrial workers of the country and led the cause of free trade unions within a healthy system of free enterprise.'
2
The legislative history is well summarized in Berman, Labor and the Sherman Act 3—54 (1930). See also Frankfurter & Greene, The Labor Injunction 139, n. 17 (1930).
3
One of the expressed aims of the Act appears to have been approval of such union-employer agreements as 'the protocol in the sweated industries of New York City and vicinity which abolished sweatshops and long hours of labor, and the burdensome, miserable toil prevailing, and established the combination of employers and of work men and work women by which certain standards are to be enforced, and (which provided that) no employer can become a member of the manufacturers' association in that trade unless he is willing to undersign an agreement by which the conditions prevailing in the protocol will be inaugurated by him.' H.R. Rep. No. 627, 63d Cong., 2d Sess., 15; S.Rep. No. 698, 63d Cong., 2d Sess., 11. This quotation was a part of the statement of Samuel Gompers to the House Committee in which he argued for adoption of a labor exemption to the Sherman Act. He stated his fear that while he did not believe that courts would declare the existence of labor unions per se to be violations of the Sherman Act, he believed that such protocols as the one discussed above would be held unlawful and stated that the manufacturers' association involved had already been sued. He was therefore seeking a congressional enactment declaring such a protocol lawful both for labor and business. It is significant that in both Senate and House Reports, almost the entire discussion of § 6 of the Clayton Act consists of this extract from Mr. Gompers' testimony. The inference is inescapable that the Clayton Act was designed, inter alia, to immunize such protocols from antitrust liability.
4
As the House Committee stated in reporting out the Norris-LaGuardia Act, '(t)he purpose of the bill is to protect the rights of labor in the same manner the Congress intended when it enacted the Clayton Act, October 15, 1914 (38 Stat.L., 738), which act, by reason of its construction and application by the Federal courts, is ineffectual to accomplish the congressional intent.' H.R.Rep. No. 669, 72d Cong., 1st Sess., 3; see also id., at 7—8.
5
In reaching this conclusion the Court relied, in part, on the provision of § 6 of the Clayton Act that 'the labor of a human being is not a commodity or article of commerce * * * nor shall such (labor) organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in the restraint of trade, under the anti-trust laws.' 310 U.S., at 503, 60 S.Ct., at 997. It also relied on provisions of the Norris-LaGuardia Act, the Railway Labor Act, 48 Stat. 1185, as amended, 45 U.S.C. § 151 et seq. (1958 ed.), the National Labor Relations Act, the Walsh-Healey Act, 49 Stat. 2036, as amended, 41 U.S.C. §§ 35—45 (1958 ed.), and the Fair Labor Standards Act, 52 Stat. 1060, as amended, 29 U.S.C. §§ 201—219 (1958 ed.). Its conclusion was that '(t)his series of acts clearly recognizes that combinations of workers eliminating competition among themselves and restricting competition among their employers based on wage cutting are not contrary to the public policy.' 310 U.S., at 504, n. 24, 60 S.Ct., at 998.
6
The Court clarified this statement by citation to United States v. Brims, 272 U.S. 549, 47 S.Ct. 169, 71 L.Ed. 403, a case involving an employer conspiracy to allocate markets. See Bedford Cut Stone Co. v. Journeymen Stone Cutters' Ass'n of North America, 274 U.S. 37, 56, 64, 47 S.Ct. 522, 528, 531 (dissenting opinion of Mr. Justice Brandeis). This, of course, is quite similar to the situation presented in Allen Bradley Co. v. Local Union No. 3, etc., 325 U.S. 797, 65 S.Ct. 1533. It is far different from the situations in the cases decided today and the situation in the garment industry which was specifically approved by Congress in the Clayton Act. See note 3, supra.
7
Cf. the opinion of my Brother White in Jewel Tea, 381 U.S. at 688—689, 692—693, 85 S.Ct. at 1601—1602, 1603; infra, pp. 1623 1625, United States v. Brims, 272 U.S. 549, 47 S.Ct. 169, discussed in note 6, supra.
8
See, e.g., H.R. 3020 §§ 301(a), (b), 80th Cong., 1st Sess.; S.Rep. No. 105, 80th Cong., 1st Sess., 22; H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 65; 93 Cong.Rec. A844—A846, A1910, 1834—1844, 3834—3836, 4130—4136, 4858—4875, 7347; S. 2573, 87th Cong., 1st Sess.; Sovern, Some Ruminations on Labor, the Antitrust Laws and Allen Bradley, 13 Lab.L.J. 957 (1962).
9
As this case does not involve an Allen Bradley situation, it is not necessary to determine whether Congress, in enacting these Taft-Hartley boycott and related revisions to the Act and at the same time rejecting an attempted codification of the Allen Bradley doctrine in the antitrust laws, intended that all union activities in this area be covered solely under the comprehensive regulation of the labor statutes with their restricted injunctive and damage provisions. See sources cited in note 8, supra. Cf. Local 20, Teamsters, Chauffeurs and Helpers Union v. Morton Trucking Co., 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280; Local 24 of the Intern. Broth. of Teamsters, etc. v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312; Garner v. Teamsters, Chauffeurs and Helpers Union No. 776 (AFL), 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228.
10
As an antitrust issue, see United States v. Hutcheson, supra.
11
As an antitrust issue, see United States v. Intern. Hod Carriers, etc., 313 U.S. 539, 61 S.Ct. 839, 85 L.Ed. 1508, affirming United States v. Carrozzo, 37 F.Supp. 191 (D.C.N.D.Ill.).
12
As antitrust issues, see United States v. Building & Construction Trades Council of New Orleans, Louisiana, 313 U.S. 539, 61 S.Ct. 839, 85 L.Ed. 1508.
13
In Pennington the collective bargaining agreement restricted subleasing, which is a mining form of subcontracting. Indeed, the Pennington case bristles with potential unfair labor practices. The Mine Workers allegedly imposed the national wage agreement on the small coal operators at a time when the Union did not represent their employees. For a minority union to enter into a collective bargaining contract covering all the employees of a unit has been held to infringe the rights of employees under § 7 of the NLRA. Intern. Ladies Garment Workers' Union, AFL-CIO v. National Labor Relations Board, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762. A 'protective wage clause' in the national wage agreement provided that signatory companies would not buy coal mined under terms and conditions less favorable than those in the national wage agreement. The Labor Board has held that this type of clause violates § 8(e) of the NLRA, as amended., 29 U.S.C. § 158(e) (1958 ed., Supp. V). See Raymond O. Lewis, W. A. Boyle & John Owens, etc., 144 N.L.R.B. 228. See also Raymond O. Lewis et al., 148 N.L.R.B. —-, 1964 CCH, N.L.R.B. Decisions 13,334.
14
See p. 1609 supra; Apex Hosiery Co. v. Leader, supra.
15
52 Stat. 1060, as amended, 29 U.S.C. §§ 201—219 (1958 ed.).
16
49 Stat. 2036, as amended, 41 U.S.C. §§ 35—45 (1958 ed.).
17
46 Stat. 1494, as amended, 40 U.S.C. § 276a (1958 ed.).
18
Although I agree with my Brother White in Jewel Tea that the doctrine of primary jurisdiction does not apply here, decisions of the Labor Board as to what constitutes a subject of mandatory bargaining are, of course, very significant in determination of the applicability of the labor exemption.
19
See, e.g., Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct.480, 99 L.Ed. 546; Garner v. Teamsters, Chauffeurs and Helpers Local Union No. 776 (AFL), 346 U.S. 485, 490—491, 74 S.Ct. 161, 98 L.Ed. 228. Although Allen Bradley held that the Clayton and Norris-LaGuardia Acts precluded federal courts from enjoining activities concerned with even some nonmandatory subjects of bargaining, Congress has since provided that union insistence on bargaining over nonmandatory subjects is an unfair labor practice, cf. National Labor Relations Board v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823, and thus the Labor Board can order the union to cease and desist from such assistance, as well as from auxiliary conduct like strikes designed to effectuate it; see Local 164, Brotherhood of Painters v. National Labor Relations Board, 110 U.S.App.D.C. 294, 293 F.2d 133.
20
Today, between 80% and 100% of the workers under union agreement are covered by multi-employer contracts in such important industries as men's and women's clothing, coal mining, building construction, hotel, longshoring, maritime, trucking, and warehousing. Between 60% and 80% of unionized workers are under multi-employer pacts in baking, book and job printing, canning and preserving, textile dyeing and finishing, glass and glass-ware, malt liquor, pottery and retail trades. See Raynolds, Labor Economics and Labor Relations 170 (3d ed. 1959). Furthermore, in some other major industries relatively uniform terms of employment are obtained through the negotiation of a contract with one leading employer and the subsequent acceptance of that contract's key provisions, with only minor modifications by the other employers in the industry. See Chamberlain, Collective Bargaining 259—263 (1951).
21
Section 6 of the Clayton Act. See p. 1609, supra.
22
See, e.g., Coronado Coal Co. v. United Mine Workers of America, 268 U.S. 295, 45 S.Ct. 551, 69 L.Ed. 963 (union primary strike activities in an organizational campaign enjoined on the grounds that the 'purpose' of the organizational campaign was to prevent nonunion coal from undercutting union coal); United States v. Railway Employees' Dept. of American Federation of Labor, 283 F. 479 (D.C.N.D.Ill) (primary strike against railroad held invalid on the ground that it interrupted commerce); Bedford Cut Stone Co. v. Journeymen Stone Cutters Ass'n of North America, 274 U.S. 37, 47 S.Ct. 522, 71 L.Ed. 916 (union's unilateral refusal to work on nonunion goods held invalid).
23
See Exec. Orders Nos. 9250 and 9328, 7 Fed.Reg. 7871, 8 Fed.Reg. 4681, promulgated pursuant to the Act of October 2, 1942, 56 Stat. 765.
24
Section 6 of the Clayton Act. See p. 1609, supra.
25
The Court in Pennington states that it 'cannot conclude that the national labor policy provides any support' for agreements whereby unions undertake to attempt to obtain uniform terms from other employers in the industry. Pennington, 381 U.S., at 667, 85 S.Ct., at 1592. In making this statement the Court ignores clear congressional expressions in §§ 6 and 20 of the Clayton Act, the Norris-LaGuardia Act, the Fair Labor Standards Act, the Walsh-Healey Public Contracts Act, the Davis-Bacon Act, and the express purpose of the National Labor Relations Act. See generally, pp. 1614—1615, supra. Moreover, the Court's reliance on three old Labor Board cases for its conclusions is clearly misplaced. These cases hold, at most, as the Court itself recognizes, that an employer may not refuse to recognize a union chosen by his employees or refuse to sign any contract until such time as the union has successfully organized the employer's competitors. Such situations, of course, are completely different from the situation in which an employer with established collective bargaining relations voluntarily agrees with the union that the union will attempt to have other employers accept similar or uniform terms. They also are completely different from the situation in which an employer signs a collective bargaining agreement the terms of which contain a 'most favored nation' clause, or labor standards on a sliding scale adjusted to the average or some other prevailing wage standard.
26
It is clear that the small service butcher shops cannot operate at night without butchers on duty. There is no doubt that the Union could bargain with them as to the hours its members worked.
27
See, e.g., Hearings before a Subcommittee of the Senate Committee on Interstate Commerce on S. 1417, 74th Cong., 1st Sess.; Hearings before the Senate Committee on Interstate Commerce on S. 4668, 74th Cong., 2d Sess.; Hearings before a Subcommittee of the Senate Committee on Interstate Commerce on S. 1, 75th Cong., 1st Sess.; Hearings before a Subcommittee of the House Committee on Education and Labor, Welfare of Miners, 80th Cong., 1st Sess.; Hearings before a Subcommittee of the Senate Committee on Labor and Public Welfare on S.Res. 274, 81st Cong., 2d Sess.; Hearings before a Subcommittee of the Senate Committee on Labor and Public Welfare, Causes of Unemployment in the Coal and Other Domestic Industries, 84th Cong., 1st Sess.
28
See p. 1616 supra.
29
See notes 8, 9 supra, and accompanying text.
*
The Allen Bradley decision has been reaffirmed and approved by the Court on numerous occasions. See United Brotherhood of Carpenters v. United States, 330 U.S. 395, 400, 411, 67 S.Ct. 775, 91 L.Ed. 973; United States v. Women's Sportswear Assn., 336 U.S. 460, 464, 69 S.Ct. 714, 93 L.Ed. 805; Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 497, 69 S.Ct. 684, 93 L.Ed. 834; United States v. Employing Plasterers Assn., 347 U.S. 186, 190, 74 S.Ct. 452, 98 L.Ed. 618; Local 24 of Intern. Broth. of Teamsters Union v. Oliver, 358 U.S. 283, 296, 79 S.Ct. 297, 3 L.Ed.2d 312; Los Angeles Meat and Provision Drivers Union, Local 626, v. United States, 371 U.S. 94, 99—101, 83 S.Ct. 162, 9 L.Ed.2d 150.
| 67
|
381 U.S. 618
85 S.Ct. 1731
14 L.Ed.2d 601
Victor LINKLETTER, Petitioner,v.Victor G. WALKER, Warden.
No. 95.
Argued March 11, 1965.
Decided June 7, 1965.
Euel A. Screws, Jr., Montgomery, Ala., for petitioner.
Teddy W. Airhart, Jr., Baton Rouge, La., for respondent.
H. Richard Uviller, New York City, for National District Attorneys' Association, as amicus curiae.
Mr. Justice CLARK delivered the opinion of the Court.
1
In Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), we held that the exclusion of evidence seized in violation of the search and seizure provisions of the Fourth Amendment was required of the States by the Due Process Clause of the Fourteenth Amendment. In so doing we overruled Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), to the extent that it failed to apply the exclusionary rule to the States.1 This case presents the question of whether this requirement operates retrospectively upon cases finally decided in the period prior to Mapp. The Court of Appeals for the Fifth Circuit held that it did not, 323 F.2d 11, and we granted certiorari in order to settle what has become a most troublesome question in the administration of justice.2 377 U.S. 930, 84 S.Ct. 1340, 12 L.Ed.2d 295. We agree with the Court of Appeals.
2
The petitioner was convicted in a Louisiana District Court on May 28, 1959, of 'simple burglary.' At the time of his arrest he had been under surveillance for two days as a suspect in connection with another burglary. He was taken to the police station, searched, and keys were taken from his person. After he was booked and placed in jail, other officers took his keys, entered and searched his home, and seized certain property and papers. Later his place of business was entered and searched and seizures were effected. These intrusions were made without a warrant. The State District Court held that the arresting officers had reasonable cause for the arrest under Louisiana law and finding probable cause to search as an incident to arrest it held the seizures valid. The Supreme Court of Louisiana affirmed in February 1960.
3
On June 19, 1961, Mapp was announced. Immediately thereafter petitioner filed an application for habeas corpus in the state court on the basis of Mapp. The writ being denied in the Louisiana courts, he then filed a like application in the United States District Court. After denial there he appealed and the Court of Appeals affirmed. It found the searches too remote from the arrest and therefore illegal but held that the constitutional requirement of exclusion of the evidence under Mapp was not retrospective. Petitioner has two points: (1) that the Court of Appeals erred in holding that Mapp was not retrospective; and (2) that even though Mapp be held not to operate retrospectively, the search in his case was subsequent to that in Mapp, and while his final conviction was long prior to our disposition of it, his case should nevertheless be governed by Mapp.
4
Initially we must consider the term 'retrospective' for the purposes of our opinion. A ruling which is purely prospective does not apply even to the parties before the court.3 See, e.g., England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). See also Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932). However, we are not here concerned with pure prospectivity since we applied the rule announced in Mapp to reverse Miss Mapp's conviction. That decision has also been applied to cases still pending on direct review at the time it was rendered.4 Therefore, in this case, we are concerned only with whether the exclusionary principle enunciated in Mapp applies to state court convictions which had become final5 before rendition of our opinion.
I.
5
While to some it may seem 'academic' it might be helpful to others for us to briefly outline the history and theory of the problem presented.
6
At common law there was no authority for the proposition that judicial decisions made law only for the future.6 Blackstone stated the rule that the duty of the court was not to 'pronounce a new law, but to maintain and expound the old one.' 1 Blackstone, Commentaries 69 (15th ed. 1809).7 This Court followed that rule in Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178 (1886),8 holding that unconstitutional action 'confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.' At 442, 6 S.Ct. at 1125. The judge rather than being the creator of the law was but its discoverer. Gray, Nature and Sources of the Law 222 (1st ed. 1909). In the case of the overruled decision, Wolf v. People of State of Colorado, supra, here, it was thought to be only a failure at true discovery and was consequently never the law; while the overruling one, Mapp, was not 'new law but an application of what is, and theretofore had been, the true law.' Shulman, Retroactive Legislation, 13 Encyclopaedia of the Social Sciences 355, 356 (1934).
7
On the other hand, Austin maintained that judges do in fact do something more than discover law; they make it interstitially by filling in with judicial interpretation the vague, indefinite, or generic statutory or common-law terms that alone are but the empty crevices of the law. Implicit in such an approach is the admission when a case is overruled that the earlier decision was wrongly decided. However, rather than being erased by the later overruling decision it is considered as an existing juridical fact until overruled, and intermediate cases finally decided under it are not to be disturbed.
8
The Blackstonian view ruled English jurisprudence and cast its shadow over our own as evidenced by Norton v. Shelby County, supra. However, some legal philosophers continued to insist that such a rule was out of tune with actuality largely because judicial repeal ofttime did 'work hardship to those who (had) trusted to its existence.' Cardozo, Address to the N.Y. Bar Assn., 55 Rep.N.Y. State Bar Assn. 263, 296—297 (1932). The Austinian view gained some acceptance over a hundred years ago when it was decided that although legislative divorces were illegal and void, those previously granted were immunized by a prospective application of the rule of the case. Bingham v. Miller, 17 Ohio 445 (1848). And as early as 1863 this Court drew on the same concept in Gelpcke v. City of Dubuque, 1 Wall. 175, 17 L.Ed. 520 (1863). The Supreme Court of Iowa had repeatedly held that the Iowa Legislature had the power to authorize municipalities to issue bonds to aid in the construction of railroads. After the City of Dubuque had issued such bonds, the Iowa Supreme Court reversed itself and held that the legislature lacked such power. In Gelpcke, which arose after the overruling decision, this Court held that the bonds issued under the apparent authority granted by the legislature were collectible. 'However we may regard the late (overruling) case in Iowa as affecting the future, it can have no effect upon the past.' At 206. The theory was, as Mr. Justice Holmes stated in Kuhn v. Fairmont Coal Co., 215 U.S. 349, 371, 30 S.Ct. 140, 148 (1910), 'that a change of judicial decision after a contract has been made on the faith of an earlier one the other way is a change of the law.' And in 1932 Mr. Justice Cardozo in Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360, applied the Austinian approach in denying a federal constitutional due process attack on the prospective application of a decision of the Montana Supreme Court. He said that a State 'may make a choice for itself between the principle of forward operation and that of relation backward.' At 364, 53 S.Ct. at 148. Mr. Justice Cardozo based the rule on the avoidance of 'injustice or hardship' citing a long list of state and federal cases supporting the principle that the courts had the power to say that decisions though later overruled 'are law none the less for intermediate transactions.' At 364, 53 S.Ct. at 148. Eight years later Chief Justice Hughes in Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940), in discussing the problem made it clear that the broad statements of Norton, supra, 'must be taken with qualifications.' He reasoned that the actual existence of the law prior to the determination of unconstitutionality 'is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.' He laid down the rule that the 'effect of the subsequent ruling as to invalidity may have to be considered in various aspects.' At 374, 60 S.Ct. at 319.
9
One form of limited retroaction which differs somewhat from the type discussed above is that which was established in United States v. Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49 (1801). There, a schooner had been seized under an order of the President which commanded that any armed French vessel found on the high seas be captured. An order of condemnation was entered on September 23, 1800. However, while the case was pending before this Court the United States signed an agreement with France providing that any property captured and not 'definitively condemned' should be restored. Chief Justice Marshall said:
10
'It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied * * * (and) where individual rights * * * are sacrificed for national purposes * * * the court must decide according to existing laws, and if it be necessary to set aside a judgment * * * which cannot be affirmed but in violation of law, the judgment must be set aside.' At 110.
11
This same approach was subsequently applied in instances where a statutory change intervened, Carpenter v. Wabash R. Co., 309 U.S. 23, 60 S.Ct. 416, 84 L.Ed. 558 (1940); where a constitutional amendment was adopted, United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763 (1934);9 and where judicial decision altered or overruled earlier case law, Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941).10
12
Under our cases it appears (1) that a change in law will be given effect while a case is on direct review, Schooner Peggy, supra,11 and (2) that the effect of the subsequent ruling of invalidity on prior final judgments when collaterally attacked is subject to no set 'principle of absolute retroactive invalidity' but depends upon a consideration of 'particular relations * * * and particular conduct * * * of rights claimed to have become vested, of status, of prior determinations deemed to have finality'; and 'of public policy in the light of the nature both of the statute and of its previous application.' Chicot County Drainage Dist. v. Baxter State Bank, supra, 308 U.S., at 374, 60 S.Ct. at 319.
13
That no distinction was drawn between civil and criminal litigation is shown by the language used not only in Schooner Peggy, supra, and Chicot County, supra, but also in such cases as State v. Jones, 44 N.M. 623, 107 P.2d 324 (1940) and James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961). In the latter case, this Court laid down a prospective principle in overruling Commissioner v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752 (1946), 'in a manner that will not prejudice those who might have relied on it.'12 At 221 of 366 U.S., 81 S.Ct. at 1056. Thus, the accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective. And 'there is much to be said in favor of such a rule for cases arising in the future.' Mosser v. Darrow, 341 U.S. 267, at 276, 71 S.Ct. 680, at 684 (dissenting opinion of Black, J.).
14
While the cases discussed above deal with the invalidity of statutes or the effect of a decision overturning long established common-law rules there seems to be no impediment—constitutional or philosophical—to the use of the same rule in the constitutional area where the exigencies of the situation require such an application. It is true that heretofore, without discussion, we have applied new constitutional rules to cases finalized before the promulgation of the rule.13 Petitioner contends that our method of resolving those prior cases demonstrates that an absolute rule of retroaction prevails in the area of constitutional adjudication. However, we believe that the Constitution neither prohibits nor requires retrospective effect. As Justice Cardozo said, 'We think the Federal Constitution has no voice upon the subject.'14
15
Once the premise is accepted that we are neither required to apply, nor prohibited from applying, a decision retrospectively, we must then weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. We believe that this approach is particularly correct with reference to the Fourth Amendment's prohibitions as to unreasonable searches and seizures. Rather than 'disparaging' the Amendment we but apply the wisdom of Justice Holmes that '(t)he life of the law has not been logic: it has been experience.' Holmes, The Common Law 5 (Howe ed. 1963).15
II.
16
Since Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), this Court has adhered to the rule that evidence seized by federal officers in violation of the Fourth Amendment is not admissible at trial in a federal court. In 1949 in Wolf v. People of State of Colorado, supra, the Court decided that while the right to privacy—'the core of the Fourth Amendment'—was such a basic right as to be implicit in 'the concept of ordered liberty' and thus enforceable against the States through the Fourteenth Amendment, 'the ways of enforcing such a basic right raise questions of a different order. How such arbitrary conduct should be checked, what remedies against it should be afforded, the means by which the right should be made effective, are all questions that are not to be so dogmatically answered as to preclude the varying solutions which spring from an allowable range of judgment on issues not susceptible of quantitative solution.' At 27—28 of 338 U.S., 69 S.Ct. at 1361.
17
The Court went on to say that the federal exclusionary rule was not 'derived from the explicit requirements of the Fourth Amendment * * *. The decision was a matter of judicial implication.' At 28, 69 S.Ct. at 1361. Since 'we find that in fact most of the English-speaking world does not regard as vital to such protection the exclusion of evidence thus obtained, we must hesitate to treat this remedy as an essential ingredient of the right.'16 At 29, 69 S.Ct. at 1362. While granting that 'in practice' the exclusion of evidence might be 'an effective way of deterring unreasonable searches,' the Court concluded that it could not 'condemn as falling below the minimal standards assured by the Due Process Clause a State's reliance upon other methods which, if consistently enforced, would be equally effective.' At 31, 69 S.Ct. at 1363. The continuance of the federal exclusionary rule was excused on the ground that the reasons for it were more 'compelling' since public opinion in the community could be exerted against oppressive conduct by local police far more effectively than it could throughout the country.
18
The 'asymmetry which Wolf imported into the law,' Mapp v. Ohio, supra, 367 U.S. at 670, 81 S.Ct. at 1700 (concurring opinion of Douglas, J.), was indicated by a decision announced on the same day, Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949), holding that evidence given to federal authorities 'on a silver platter' by state officers was not excludable in federal trials. At 79, 69 S.Ct. at 1374. Wolf's holding, in conjunction with the 'silver platter' doctrine of Lustig, provided wide avenues of abuse in the Weeks' exclusionary rule in the federal courts. Evidence seized in violation of the Fourth Amendment by state officers was turned over to federal officers and admitted in evidence in prosecutions in the federal courts. In 1951 Wolf was strengthened by Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138, in which the Court refused to permit a federal court to enjoin the use of evidence in a state criminal proceeding that had been illegally seized by state officers. In 1952, however, the Court could not tolerate the procedure involved in Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, where morphine capsules pumped from the accused's stomach by state officers were admitted in evidence in a state court. It struck down the conviction on due process grounds under the Fourteenth Amendment because the action was shocking to the conscience. In 1954 came Irvine v. People of State of California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561, in which the State admitted evidence procured via a microphone secreted clandestinely by state police in the accused's bedroom. These 'incredible' circumstances did not sufficiently shock the conscience of the Court into applying the Rochin test. Instead the case went off on the doctrine of Wolf. Mr. Justice Jackson in announcing the judgment of the Court overruled those who urged that Wolf 'applies only to searches and seizures which produce on our minds a mild shock, while if the shock is more serious, the states must exclude the evidence or we will reverse the conviction.' At 133 134, of 347 U.S., 74 S.Ct. at 383—384. He strongly reaffirmed Wolf stating:
19
'Now that the Wolf doctrine is known to them, state courts may wish further to reconsider their evidentiary rules. But to upset state convictions even before the states have had adequate opportunity to adopt or reject the rule would be an unwarranted use of federal power.' At 134, 74 S.Ct. at 384.
20
The opinion in dealing with the operation of the exclusionary rule said that it 'must be remembered that petitioner is not invoking the Constitution to prevent or punish a violation of his federal right recognized in Wolf * * *. He is invoking it only to set aside his own conviction of crime. * * * Rejection of the evidence does nothing to punish the wrong-doing official, while it may, and likely will, release the wrong-doing defendant. * * * (It) does nothing to protect innocent persons who are the victims of illegal but fruitless searches.' At 136, 74 S.Ct. at 385. Admitting the futility of other remedies available to the victims of illegal searches, Mr. Justice Jackson and the then Chief Justice suggested that the 'Clerk of this Court should be directed to forward a copy of the record in this case, together with a copy of this opinion, for attention of the Attorney General of the United States' with a view to prosecution under the Civil Rights Act, 62 Stat. 696, 18 U.S.C. § 242 (1958 ed.). In concurring in the judgment in Irvine the writer of this opinion indicated his displeasure with Wolf but observed that since the Court 'still refuses today' to overrule it he felt bound by Wolf but had hopes that 'strict adherence to the tenor of that decision may produce needed converts for its extinction.' At 138—139, 74 S.Ct. at 387. The Court continued to broaden the rule of exclusion when, in 1956, it held that a federal agent might be enjoined from transferring to state authorities evidence that he had seized on an illegal federal warrant, or testifying with regard to it in a state prosecution. Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233. In 1960 the Court's dissatisfaction with the 'silver platter' doctrine, Lustig v. United States, supra, led to its rejection in the leading case of Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669. The factual situation being the converse of Rea v. United States, supra, the Court tightened the noose of exclusion in order to strangle completely the use in the federal courts of evidence illegally seized by state agents. It was in Elkins that the Court emphasized that the exclusionary rule was 'calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.'17 At 217 of 364 U.S., 80 S.Ct. at 1444.
21
Mapp was announced in 1961. The Court in considering 'the current validity of the factual grounds upon which Wolf was based' pointed out that prior to Wolf 'almost two-thirds of the States were opposed to the use of the exclusionary rule, now, despite the Wolf case, more than half of those since passing upon it * * * have wholly or partly adopted or adhered to the Weeks rule.' At 651 of 367 U.S., 81 S.Ct. at 1689. We then cited California as typical of those adopting the rule since Wolf. It was "compelled to reach that conclusion," we said, quoting California's highest court, "because other remedies have completely failed to secure compliance with the constitutional provisions * * *.' People v. Cahan, 1955, 44 Cal.2d 434, 445, 282 P.2d 905, 911, 50 A.L.R.2d 513. * * *' We went on to find that '(t)he experience of California that such other remedies have been worthless and futile is buttressed by the experience of other States. The obvious futility of relegating the Fourth Amendment to the protection of other remedies has, moreover, been recognized by this Court since Wolf. See Irvine v. People of State of California * * *.' At 652—653, 81 S.Ct. at 1689—1690. In discussing People v. Defore, 242 N.Y. 13, 150 N.E. 585, upon which Wolf heavily relied, we concluded that 'Likewise, time has set its face against what Wolf called the 'weighty testimony' of People v. Defore * * * 'that (t)he Federal rule as it stands is either too strict or too lax.' 242 N.Y., at page 22, 150 N.E., at page 588.' At 653 of 367 U.S., 81 S.Ct. at 1690. We concluded that 'the force of that reasoning has been largely vitiated by later decisions of this Court,' at 653, 81 S.Ct. at 1690, which had closed all of the courtroom doors 'open to evidence secured by official lawlessness * * *' save that of the state courts. At 655, 81 S.Ct. at 1691. That door was closed by Mapp.
22
In recapitulation, we found in Mapp that Wolf rested on these grounds. First, that the 'contrariety of views of the States' as to the use of the exclusionary rule was 'particularly impressive.' Second, "other means of protection' (of Fourth Amendment rights) (had) been afforded' than the exclusionary rule. And, third, the 'weighty testimony' of People v. Defore, supra. As to the first, we found the lineup of the States as to the exclusionary rule had shifted to where a majority favored it; as to the second, that the other means of protection had proven to be 'worthless and futile' and had not reduced the incidence of police lawlessness during the 12 years since Wolf was announced but that Wolf had operated as a license for police illegality; and, as to the third, that our cases subsequent to Mapp had completely closed the laxity in the federal exclusionary rule complained of in People v. Defore, supra. We also affirmatively found that the exclusionary rule was 'an essential part of both the Fourth and Fourteenth Amendments' and the only effective remedy for the protection of rights under the Fourth Amendment; that it would stop the needless 'shopping around' that was causing conflict between federal and state courts, as was permitted in Wilson v. Schnettler, 365 U.S. 381, 81 S.Ct. 632, 5 L.Ed.2d 620 (1961); that it would withdraw the invitation which Wolf extended to federal officers to step across the street to the state's attorney with their illegal evidence, thus eliminating a practice which tended to destroy the entire system of constitutional restraints on which the liberties of the people rest; that it would promote state-federal cooperation in law enforcement by rejecting the double standard of admissibility of illegal evidence which tends to breed suspicion among the officers, encourages disobedience to the Constitution on the part of all the participants and violates 'the imperative of judicial integrity.' Mapp v. Ohio, supra, 367 U.S. at 657—660, 81 S.Ct. at 1692—1694. In short, just as other cases had found the exclusionary rule to be a deterrent safeguard necessary to the enforcement of the Amendment, Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), Mapp bottomed its rule on its necessity as a 'sanction upon which (the Fourth Amendment's) protection and enjoyment had always been deemed dependent under the Boyd, Weeks and Silverthorne cases.' At 655 of 367 U.S., 81 S.Ct. at 1692. Mapp's rationale was that since Wolf we had on an ad hoc basis been led to exclude all evidence in both state and federal courts where a federal agent had participated in the illegal search. Only a few States had made any changes in their rule of admissibility since Wolf and many of those not following the federal exclusionary rule were, in effect, using Wolf as a license to violate the Fourth Amendment's proscription of unreasonable searches and seizures as applied to the States by the Wolf case itself. As we noted in Mapp 'further delay in (applying the exclusionary rule to the States) could have no effect other than to compound the difficulties'; a definitive continuance of Wolf might have increased the number of cases involving illegal searches in non-exclusionary States and also enticed those in the exclusionary column to reverse their position, as some States had done prior to Mapp.
III.
23
We believe that the existence of the Wolf doctrine prior to Mapp is 'an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.' Chicot County Drainage Dist. v. Baxter State Bank, supra, 308 U.S. at 374, 60 S.Ct. at 319. The thousands of cases that were finally decided on Wolf cannot be obliterated. The 'particular conduct, private and official,' must be considered. Here 'prior determinations deemed to have finality and acted upon accordingly' have 'become vested.' And finally, 'public policy in the light of the nature both of the (Wolf doctrine) and of its previous application' must be given its proper weight. Ibid. In short, we must look to the purpose of the Mapp rule; the reliance placed upon the Wolf doctrine; and the effect on the administration of justice of a retrospective application of Mapp.
24
It is clear that the Wolf Court, once it had found the Fourth Amendment's unreasonable Search and Seizure Clause applicable to the States through the Due Process Clause of the Fourteenth Amendment, turned its attention to whether the exclusionary rule was included within the command of the Fourth Amendment. This was decided in the negative. It is clear that based upon the factual considerations heretofore discussed the Wolf Court then concluded that it was not necessary to the enforcement of the Fourth Amendment for the exclusionary rule to be extended to the States as a requirement of due process. Mapp had as its prime purpose the enforcement of the Fourth Amendment through the inclusion of the exclusionary rule within its rights. This, it was found, was the only effective deterrent to lawless police action. Indeed, all of the cases since Wolf requiring the exclusion of illegal evidence have been based on the necessity for an effective deterrent to illegal police action. See, e.g., Rea v. United States, supra. We cannot say that this purpose would be advanced by making the rule retrospective. The misconduct of the police prior to Mapp has already occurred and will not be corrected by releasing the prisoners involved. Nor would it add harmony to the delicate state-federal relationship of which we have spoken as part and parcel of the purpose of Mapp. Finally, the ruptured privacy of the victims' homes and effects cannot be restored. Reparation comes too late.
25
It is true that both the accused and the States relied upon Wolf. Indeed, Wolf and Irvine each pointed the way for the victims of illegal searches to seek reparation for the violation of their privacy. Some pursued the same. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). In addition, in Irvine, a flag in a concurring opinion warned that Wolf was in stormy weather. On the other hand, the States relied on Wolf and followed its command. Final judgments of conviction were entered prior to Mapp. Again and again this Court refused to reconsider Wolf and gave its implicit approval to hundreds of cases in their application of its rule. In rejecting the Wolf doctrine as to the exclusionary rule the purpose was to deter the lawless action of the police and to effectively enforce the Fourth Amendment. That purpose will not at this late date be served by the wholesale release of the guilty victims.
26
Finally, there are interests in the administration of justice and the integrity of the judicial process to consider. To make the rule of Mapp retrospective would tax the administration of justice to the utmost. Hearings would have to be held on the excludability of evidence long since destroyed, misplaced or deteriorated. If it is excluded, the witnesses available at the time of the original trial will not be available or if located their memory will be dimmed. To thus legitimate such an extraordinary procedural weapon that has no bearing on guilt would seriously disrupt the administration of justice.
27
It is urged, however, that these same considerations apply in the cases that we have applied retrospectively in other areas,18 notably that of coerced confessions, and that the Mapp exclusionary rule should, therefore, be given the same dignity and effect. Two cases are cited, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961), but neither is apposite. It is said that we ordered new trials 25 years after conviction in the latter and after the lapse of 21 years in the former. This time table is true but that is all. The principle that a coerced confession is not admissible in a trial predated the arrests as well as the original convictions in each of these cases. See Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936). There was no question of retrospective operation involved in either case. Moreover, coerced confessions are excluded from evidence because of 'a complex of values,' Blackburn v. State of Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960), including 'the likelihood that the confession is untrue'; 'the preservation of the individual's freedom of will'; and "(t)he abhorrence of society to the use of involuntary confessions." At 207, 80 S.Ct. at 280. Cited with approval in Jackson v. Denno, 378 U.S. 368, 385—386, 84 S.Ct. 1774, 1785 (1964). But there is no likelihood of unreliability or coercion present in a search-and-seizure case. Rather than being abhorrent at the time of seizure in this case, the use in state trials of illegally seized evidence had been specifically authorized by this Court in Wolf.19 Furthermore, in Noia, the confession was admittedly coerced and the sole issue involved the availability of federal habeas corpus in a state conviction, where state post-conviction remedies had been exhausted but the accused had failed to appeal from his original conviction. Nothing of that kind is involved here and this holding has no bearing whatever on Noia or Reck, for that matter. Finally, in each of the three areas in which we have applied our rule retrospectively20 the principle that we applied went to the fairness of the trial—the very integrity of the fact-finding process. Here, as we have pointed out, the fairness of the trial is not under attack. All that petitioner attacks is the admissibility of evidence, the reliability and relevancy of which is not questioned and which may well have had no effect on the outcome.
28
Nor can we accept the contention of petitioner that the Mapp rule should date from the day of the seizure there, rather than that of the judgment of this Court. The date of the seizure in Mapp has no legal significance. It was the judgment of this Court that changed the rule and the date of that opinion is the crucial date. In the light of the cases of this Court this is the better cutoff time. See United States v. Schooner Peggy, supra.
29
All that we decide today is that though the error complained of might be fundamental it is not of the nature requiring us to overturn all final convictions based upon it. After full consideration of all the factors we are not able to say that the Mapp rule requires retrospective application.
30
Affirmed.
31
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.
32
The Court of Appeals held, and this Court now concedes, that the petitioner Linkletter is presently in prison serving a nine-year sentence at hard labor for burglary under a 1959 Louisiana State Court conviction obtained by use of evidence unreasonably seized in violation of the Fourth and Fourteenth Amendments. On June 19, 1961, we decided Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 in which the Court specifically held that 'all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.' 367 U.S. at 655, 81 S.Ct. at 1691. Stating that this Court had previously held in Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, that the Fourth Amendment was applicable to the States through the Due Process Clause of the Fourteenth Amendment, this Court in Mapp went on to add:
33
'In short, the admission of the new constitutional right by Wolf could not consistently tolerate denial of its most important constitutional privilege, namely, the exclusion of the evidence which an accused had been forced to give by reason of the unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment.' 367 U.S., at 656, 81 S.Ct., at 1692.
34
Despite the Court's resounding promises throughout the Mapp opinion that convictions based on such 'unconstitutional evidence' would "find no sanction in the judgments of the courts," Linkletter, convicted in the state court by use of 'unconstitutional evidence,' is today denied relief by the judgment of this Court because his conviction became 'final' before Mapp was decided. Linkletter must stay in jail; Miss Mapp, whose offense was committed before Linkletter's, is free. This different treatment of Miss Mapp and Linkletter points up at once the arbitrary and discriminatory nature of the judicial contrivance utilized here to break the promise of Mapp by keeping all people in jail who are unfortunate enough to have had their unconstitutional convictions affirmed before June 19, 1961.
35
Miss Mapp's Ohio offense was committed May 23, 1957; Linkletter's Louisiana offense occurred more than a year later August 16, 1958. Linkletter was tried in Louisiana, convicted, the State Supreme Court affirmed, and a rehearing was denied March 21, 1960, all within about one year and seven months after his offense was committed. The Ohio Supreme Court affirmed Miss Mapp's conviction March 23, 1960, approximately two years and 10 months after her offense. Thus, had the Ohio courts proceeded with the same expedition as those in Louisiana, or had the Louisiana courts proceeded as slowly as the Ohio courts, Linkletter's conviction would not have been 'finally' decided within the Court's definition of 'finally' until within about 10 days of the time Miss Mapp's case was decided in this Court—which would have given Linkletter ample time to petition this Court for virtually automatic relief on direct review after the Mapp case was decided. The Court offers no defense based on any known principle of justice for discriminating among defendants who were similarly convicted by use of evidence unconstitutionally seized. It certainly cannot do so as between Linkletter and Miss Mapp. The crime with which she was charged took place more than a year before his, yet the decision today seems to rest on the fanciful concept that the Fourth Amendment protected her 1957 offense against conviction by use of unconstitutional evidence but denied its protection to Linkletter for his 1958 offense. In making this ruling the Court assumes for itself the virtue of acting in harmony with a comment of Justice Holmes that '(t)he life of the law has not been logic: it has been experience.'1 Justice Holmes was not there talking about the Constitution; he was talking about the evolving judge-made law of England and of some of our States whose judges are allowed to follow in the common law tradition. It should be remembered in this connection that no member of this Court has ever more seriously criticized it than did Justice Holmes for reading its own predilections into the 'vague contours' of the Due Process Clause.2 But quite apart from that, there is no experience of the past that justifies a new Court-made rule to perpetrate a grossly invidious and unfair discrimination against Linkletter simply because he happened to be prosecuted in a State that was evidently well up with its criminal court docket. If this discrimination can be excused at all it is not because of experience but because of logic—sterile and formal at that—not, according to Justice Holmes, the most dependable guide in lawmaking.
36
When we get beyond the way the new rule works as between people situated like Linkletter and Miss Mapp, the new contrivance stands no better. I say 'new' because the Court admits, as it must, that 'It is true that heretofore, without discussion, we have applied new constitutional rules to cases finalized before the promulgation of the rule.' Ante, p. 628. And the Court also refers to a number of cases in which that practice has been followed. For example, in Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, where we announced that a pauper could not be denied the right to appeal because of his indigency, a suggestion was made in a concurring opinion that the Court should apply its new rule to future cases only. Id., at 25—26, 76 S.Ct., at 594—595. However, in 1958 this Court did apply the Griffin rule to a conviction obtained in 1935, over the dissents of two Justices who said that the Griffin case decided in 1956 should not determine the constitutionality of the petitioner's 1935 conviction. Eskridge v. Washington State Parole Bd., etc., 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269.
37
Interesting as the question may be abstractly, this case should not be decided on the basis of arguments about whether judges 'make' law or 'discover' it when performing their duty of interpreting the Constitution. This Court recognized in Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 319, 84 L.Ed. 329, an opinion in which I joined, that 'an allinclusive statement of a principle of absolute retroactive invalidity cannot be justified.' And where state courts in certain situations chose to apply their decisions to the future only, this Court also said that, 'the federal constitution has no voice' forbidding them to do so. Great Northern Ry. Co. v. Sunburst Oil & Ref. Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360. But cf. Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372, 30 S.Ct. 140, 148, 54 L.Ed. 228 (dissenting opinion). In stating this Court's position on the question, the opinion in the Chicot County case recognized that rights and interests may have resulted from the existence and operation of a statute which should be respected notwithstanding its later being declared unconstitutional:
38
'The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects,—with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination.' 308 U.S., at 374, 60 S.Ct., at 318.
39
Thus in Mosser v. Darrow, 341 U.S. 267, 71 S.Ct. 680, 95 L.Ed. 927, when this Court created an entirely new rule imposing heavy financial liability on a trustee in bankruptcy for acts which at the time he performed them had been perfectly valid under the law, I dissented, stating my belief that although there was 'much to be said in favor of such a rule (of trustee liability) for cases arising in the future,' 341 U.S., at 276, 71 S.Ct., at 684, it should not be applied against trustees who had in good faith relied on the existence of a different rule in the past. On the other hand, in James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246, I suggested in an opinion in which Mr. Justice Douglas joined, that there were objections having a peculiar force in the field of criminal law to a judicial rule to the effect that courts 'should make their decisions as to what the law is apply only prospectively.' A major basis for what we said there was stated this way:
40
'Our trouble with this aspect of the Court's action is that it seems to us to indicate that the Court has passed beyond the interpretation of the tax statute and proceeded substantially to amend it.
41
'In our judgment one of the great inherent restraints upon this Court's departure from the field of interpretation to enter that of lawmaking has been the fact that its judgments could not be limited to prospective application.' 366 U.S., at 224—225, 81 S.Ct., at 1058—1059.
42
I adhere to my views in James, expressing opposition to a general rule that would always apply new interpretations of criminal laws prospectively. Doubtless there might be circumstances in which applying a new interpretation of the law to past events might lead to unjust consequences which, as we said in Chicot, cannot justly be ignored.' No such unjust consequences to Linkletter, however, can possibly result here by giving him and others like him the benefit of a changed constitutional interpretation where he is languishing in jail on the basis of evidence concededly used unconstitutionally to convict him. And I simply cannot believe that the State of Louisiana has any 'vested interest' that we should recognize in these circumstances in order to keep Linkletter in jail. I therefore would follow this Court's usual practice and apply the Mapp rule to unconstitutional convictions which have resulted in persons being presently in prison.
43
In refusing to give Linkletter the benefit of the Mapp rule, the Court expresses the view that its 'approach is particularly correct with reference to the Fourth Amendment's prohibitions as to unreasonable searches and seizures,' indicating a disparaging view of the Fourth Amendment that leaves me somewhat puzzled after Mapp and other recent opinions talking about the indispensable protections of the Amendment. Ante, p. 629. Then the Court goes on to follow a recent pattern of balancing away Bill of Rights guarantees and balances away3 in great part the Fourth Amendment safeguards one could reasonably have expected from the Mapp opinion and the opinion in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, which opened up to collateral attack all unconstitutional convictions even though 'final.' Even using the Court's own balancing process, however, I think those now in prison under convictions resting on the use of unconstitutionally seized evidence should have their convictions set aside and be granted new trials conducted in conformity with the Constitution.
I.
44
As the Court concedes, ante, p. 628, this is the first instance on record where this Court, having jurisdiction, has ever refused to give a previously convicted defendant the benefit of a new and more expansive Bill of Rights interpretation. I am at a loss to understand why those who suffer from the use of evidence secured by a search and seizure in violation of the Fourth Amendment should be treated differently from those who have been denied other guarantees of the Bill of Rights. Speaking of the right guaranteed by the Fourth and Fifth Amendments not to be convicted on 'unconstitutional evidence,' the Court said in Mapp, only four years ago, that:
45
'* * * we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him * * *.' 367 U.S., at 660, 81 S.Ct., at 1694. (Emphasis supplied.)
46
Linkletter was convicted on 'unconstitutional evidence.' He brought this federal habeas corpus proceeding seeking relief from his prior conviction, which this Court held in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, was the proper way to challenge a previous conviction unconstitutionally obtained. Evidence used against Noia, however, was not obtained by an unlawful search and seizure but by a coerced confession. Noia's conviction had taken place 21 years before his case reached this Court, and was therefore 'final.' And in Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948, decided in 1961, this Court set aside the conviction of Reck for a 1936 offense on the ground that a coerced confession had been used against him.
47
There are peculiar reasons why the Mapp search and seizure exclusionary rule should be given like dignity and effect as the coerced confession exclusionary rule. Quite apart from the Court's positive statement in Mapp that the right guaranteed by the Fourth and Fifth Amendments not to be convicted through use of unconstitutionally seized evidence should be given 'like effect as other basic rights secured by the Due Process Clause * * *,' Mapp, like most other search and seizure exclusionary rule cases, relied heavily on Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. In reaching the conclusion in Boyd that evidence obtained by unlawful search and seizure could not be admitted nin evidence, the Boyd Court relied on the Fifth Amendment's prohibition against compelling a man to be a witness against himself. The Boyd Court held that the Fifth Amendment's prohibition against self-incrimination gave constitutional justification to exclusion of evidence obtained by an unlawful search and seizure. The whole Court4 treated such a search and seizure as compelling the person whose property was thus taken to give evidence against himself. There was certainly nothing in the Boyd case to indicate that the Fourth and Fifth Amendments were to be given different dignity and respect in determining what, when and under what circumstances persons are entitled to their full protection. See One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693, 703, 85 S.Ct. 1246, 1252 (concurring opinion).
48
This Court's opinion in Mapp not only by the express language already quoted but in numerous other places treated the two amendments as inseparable from the standpoint of the exclusionary rule. Speaking of the two, the Court said:
49
'(T)he very least that together they assure in either sphere is that no man is to be convicted on unconstitutional evidence.' 367 U.S., at 657, 81 S.Ct., at 1692.
Again the Court said in Mapp that:
50
"(C)onviction by means of unlawful seizures and enforced confessions * * * should find no sanction in the judgments of the courts * * *." Id., at 648, 81 S.Ct., at 1688.
51
This statement appearing in Mapp had originally been made in Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652. Weeks, which established the federal exclusionary rule for the first time, did so by relying greatly on the Boyd case and Boyd's treatment of unlawful seizures and enforced confessions as falling into precisely the same constitutional category. Yet the Court today by a chain of circuitous reasoning degrades the search and seizure exclusionary rule to a position far below that of the rule excluding evidence obtained by coerced confessions. The result is that this departure from the philosophy of Mapp denies Linkletter a right to challenge his conviction for an offense committed in August 1958 while it leaves Miss Mapp free because of an offense she committed in 1957.
II.
52
One reason—perhaps a basic one—put forward by the Court for its refusal to give Linkletter the benefit of the search and seizure exclusionary rule is the repeated statement that the purpose of that rule is to deter sheriffs, policemen, and other law officers from making unlawful searches and seizures. The inference I gather from these repeated statements is that the rule is not a right or privilege accorded to defendants charged with crime but is a sort of punishment against officers in order to keep them from depriving people of their constitutional rights. In passing I would say that if that is the sole purpose, reason, object and effect of the rule, the Court's action in adopting it sounds more like lawmaking than construing the Constitution. Compare Mapp v. Ohio, 367 U.S. 643, 661, 81 S.Ct. 1684, 1694 (concurring opinion). Both the majority and the concurring members of the Boyd Court seemed to believe they were construing the Constitution. Quite aside from that aspect, however, the undoubted implication of today's opinion that the rule is not a safeguard for defendants but is a mere punishing rod to be applied to law enforcement officers is a rather startling departure from many past opinions, and even from Mapp itself. Mapp quoted from the Court's earlier opinion in Weeks v. United States, supra, certainly not with disapproval, saying that the Court 'in that case clearly stated that use of the seized evidence involved 'a denial of the constitutional rights of the accused." 367 U.S., at 648, 81 S.Ct., at 1688. I have read and reread the Mapp opinion but have been unable to find one word in it to indicate that the exclusionary search and seizure rule should be limited on the basis that it was intended to do nothing in the world except to deter officers of the law. Certainly no such limitation is implied by the Court's statement in Mapp that without the rule:
53
'(T)he assurance against unreasonable * * * searches and seizures would be 'a form of words,' valueless and undeserving of mention in a perpetual charter of inestimable human liberties * * *.' 367 U.S., at 655, 81 S.Ct., at 1691.
54
The Court went on to indicate its belief that the rule was "implicit in 'the concept of ordered liberty,'" id., at 655, 81 S.Ct., at 1691, and that it is an 'essential ingredient' of the constitutional guarantee. Id., at 651, 81 S.Ct., at 1689. If the exclusionary rule has the high place in our constitutional plan of 'ordered liberty,' which this Court in Mapp and other cases has so frequently said that it does have, what possible valid reason can justify keeping people in jail under convictions obtained by wanton disregard of a constitutional protection which the Court itself in Mapp treated as being one of the 'constitutional rights of the accused'?
III.
55
The Court says that the exclusionary rule's purpose of preventing law enforcement officers from making lawless searches and seizures 'will not at this late date be served by the wholesale release of the guilty victims.' Ante, p. 637. It has not been the usual thing to cut down trial protections guaranteed by the Constitution on the basis that some guilty persons might escape. There is probably no one of the rights in the Bill of Rights that does not make it more difficult to convict defendants. But all of them are based on the premise, I suppose, that the Bill of Rights' safeguards should be faithfully enforced by the courts without regard to a particular judge's judgment as to whether more people could be convicted by a refusal of courts to enforce the safeguards. Such has heretofore been accepted as a general maxim. In answer to an argument made in the Mapp case, that application of the exclusionary rule to the States might allow guilty criminals to go free, this Court conceded that:
56
'In some cases this will undoubtedly be the result. * * * The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.' Mapp v. Ohio, supra, at 659, 81 S.Ct., at 1693.
IV.
The Court says that:
57
'To make the rule of Mapp retrospective would tax the administration of justice to the utmost. Hearings would have to be held on the excludability of evidence long since destroyed, misplaced or deteriorated. If it is excluded, the witnesses available at the time of the original trial will not be available or if located their memory will be dimmed. To thus legitimate such an extraordinary procedural weapon that has no bearing on guilt would seriously disrupt the administration of justice.' Ante, pp. 637-638.
58
This same argument would certainly apply with much force to many cases we have heard in the past including Reck v. Pate, supra, and Fay v. Noia, supra. Reck was directed to be given a new trial 25 years after his offense and Noia 21 years after conviction. Both were given relief under just 'such an extraordinary procedural weapon' as the Court seems today to inveigh against. Indeed in Noia's case this Court went to great lengths to explain in an exhaustive and in what I consider to be a very notable and worthwhile opinion that habeas corpus was designed to go behind 'final' judgments and release people who were held on convictions obtained by reason of a denial of constitutional rights. A glance at the briefs and this Court's opinions in both Reck and Noia will reveal that this Court rejected precisely the same kind of arguments and reasoning that I have just quoted from the Court's opinion justifying its judgment in this case. What the Court held in Noia did not, as the dissenting Justice charged it would, seriously disrupt the administration of justice.5 It merely opened up to collateral review cases of men who were in prison due to convictions where their constitutional rights had been disregarded. Noia rested on the sound principle that people in jail, without regard to when they were put there, who were convicted by the use of unconstitutional evidence were entitled in a government dedicated to justice and fairness to be allowed to have a new trial with the safeguards the Constitution provides.
59
Little consolation can be gathered by people who languish in jail under unconstitutional convictions from the Court's statement that 'the ruptured privacy of the victims' homes and effects cannot be restored. Reparation comes too late.' Ante, p. 637. Linkletter is still in jail. His claim is no more 'too late' than was Noia's.6
60
The plain facts here are that the Court's opinion cuts off many defendants who are now in jail from any hope of relief from unconstitutional convictions. The opinion today also beats a timid retreat from the wholesome and refreshing principles announced in Noia. No State should be considered to have a vested interest in keeping prisoners in jail who were convicted because of lawless conduct by the State's officials. Careful analysis of the Court's opinion shows that it rests on the premise that a State's assumed interest in sustaining convictions obtained under the old, repudiated rule outweighs the interests both of that State and of the individuals convicted in having wrongful convictions set aside. It certainly offends my sense of justice to say that a State holding in jail people who were convicted by unconstitutional methods has a vested interest in keeping them there that outweighs the right of persons adjudged guilty of crime to challenge their unconstitutional convictions at any time. No words can obscure the simple fact that the promises of Mapp and Noia are to a great extent broken by the decision here. I would reverse.
1
Although Mapp may not be considered to be an overruling decision in the sense that it did not disturb the earlier holding of Wolf that the search and seizure provisions of the Fourth Amendment are applicable to the States, its effect certainly was to change existing law with regard to enforcement of the right.
2
A split of authority has developed in the various courts of appeals concerning the retrospectivity of Mapp. Compare Hall v. Warden, 313 F.2d 483 (C.A.4th Cir. 1963) (retroactive); Walker v. Peppersack, 316 F.2d 119 (C.A.4th Cir. 1963) (retroactive); People of State of California v. Hurst, 325 F.2d 891 (C.A.9th Cir. 1963) (retroactive), with Gaitan v. United States, 317 F.2d 494 (C.A.10th Cir. 1963) (prospective); Linkletter v. Walker, 323 F.2d 11 (C.A.5th Cir. 1963) (prospective); Sisk v. Lane, 331 F.2d 235 (C.A.7th Cir. 1964) (prospective); United States ex rel. Angelet v. Fay, 333 F.2d 12 (C.A.2d Cir. 1964) (prospective).
About the only point upon which there was agreement in the cases cited was that our opinion in Mapp did not foreclose the question.
The state courts which have considered the question have almost unanimously decided against application to cases finalized prior to Mapp. See, e.g., State ex rel. Beltowski v. Tahash, 266 Minn. 182, 123 N.W.2d 207, cert. denied, 375 U.S. 947, 84 S.Ct. 358, 11 L.Ed.2d 278 (1963); Moore v. State, 274 Ala. 276, 147 So.2d 835 (1962), cert. denied, 374 U.S. 811, 83 S.Ct. 1700, 10 L.Ed.2d 1034 (1963); People v. Muller, 11 N.Y.2d 154, 227 N.Y.S.2d 421, 182 N.E.2d 99, cert. denied, 371 U.S. 850, 83 S.Ct. 89, 9 L.Ed.2d 86 (1962).
Commentators have also split over the question of absolute retroactivity. See Bender, The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio, 110 U.Pa.L.Rev. 650 (1962); Freund, New Vistas in Constitutional Law, 112 U.Pa.L.Rev. 631 (1964); Traynor, Mapp v. Ohio at Large in the Fifty States, 1962 Duke L.J. 319; Weinstein, Local Responsibility for Improvement of Search and Seizure Practices, 34 Rocky Mt.L.Rev. 150 (1962); Note, Collateral Attack of Pre-Mapp v. Ohio Convictions Based on Illegally Obtained Evidence in State Courts, 16 Rutgers L.Rev. 587 (1962); Note, Prospective Overruling and Retroactive Application in the Federal Courts, 71 Yale L.J. 907 (1962). Contra, Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va.L.Rev. 201 (1965); Meador, Habeas Corpus and the 'Retroactivity' Illusion, 50 Va.L.Rev. 1115 (1964); Torcia & King, The Mirage of Retroactivity and Changing Constitutional Concepts, 66 Dick.L.Rev. 269 (1962).
3
It has been suggested that this Court is prevented by Article III from adopting the technique of purely prospective overruling. Note, 71 Yale L.J. 907, 933 (1962). But see 1A Moore, Federal Practice 4082—4084 (2d ed. 1961); Currier, supra, n. 2, at 216—220. However, no doubt was expressed of our power under Article III in England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). See also Griffin v. People of State of Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956) (concurring opinion of Frankfurter, J.).
4
Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964).
5
By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before our decision in Mapp v. Ohio.
6
'I know of no authority in this court to say that, in general, state decisions shall make law only for the future. Judicial decisions have had retrospective operation for near a thousand years.' Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372, 30 S.Ct. 140, 148, 54 L.Ed. 228 (1910) (dissenting opinion of Holmes, J.).
7
While Blackstone is always cited as the foremost exponent of the declaratory theory, a very similar view was stated by Sir Matthew Hale in his History of the Common Law which was published 13 years before the birth of Blackstone. Gray, Nature and Sources of the Law 206 (1st ed. 1909).
8
It is interesting to note, however, that as early as 1801, Chief Justice Marshall in United States v. Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49, had made clear that
'if subsequent to the judgment (in the trial court) and before the decision of the appellate court, a law intervenes and positively changes the rule which governs * * * the court must decide according to existing laws, and if it be necessary to set aside a judgment * * * which cannot be affirmed but in violation of law, the judgment must be set aside.' At 110.
Petitioner maintains that this case establishes a rule of absolute retroactivity and that the principle is the same with regard to constitutional rights. Respondent, on the other hand, maintains that the case stands for the proposition for which he contends, i.e., that a change in the law will be given effect while a case is on direct review, but cannot be necessarily invoked on collateral attack.
9
'Because this was a criminal prosecution, it builds not only upon the cases which followed Schooner Peggy but also upon the principle, established at common law, that repeal of a penal statute prohibits prosecution of acts committed before the repeal if those acts had not yet been prosecuted to final judgment. The repeal is regarded as an indication that the state no longer wants such acts punished, regardless of when they took place, and no longer views them as criminal.' Note, 71 Yale L.J. 907, 914 (1962).
10
This was a diversity case in which this Court held that the doctrine of Schooner Peggy, in effect, was incorporated in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. 'A federal court sitting in a diversity case must therefore apply the most recent state court decision, even if it came after the operative events or the entry of judgment by a lower court.' Note, 71 Yale L.J. 907, 915 (1962). See, e.g., Blaauw v. Grand Trunk Western R. Co., 380 U.S. 127, 85 S.Ct. 806, 13 L.Ed.2d 792 (1965).
11
Accord, Carpenter v. Wabash R. Co., 309 U.S. 23, 60 S.Ct. 416, 84 L.Ed. 558 (1940) (intervening statutory change); Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538 and cases cited at 541—542, 61 S.Ct. 347, 349—350 (1941); Dinsmore v. Southern Express Co., 183 U.S. 115, 120, 22 S.Ct. 45, 46, 46 L.Ed. 111 (1901) (intervening statutory change); Crozier v. Fried. Krupp Aktiengesellschaft, 224 U.S. 290, 308, 32 S.Ct. 488, 492, 56 L.Ed. 771 (1912) (intervening statutory change).
12
There was no mention of prospective overruling in the opinion, however three Justices voted to overrule Wilcox but reversed James' conviction because 'the element of willfulness could not be proven in a criminal prosecution for failing to include embezzled funds in gross income in the year of misappropriation so long as the statute contained the gloss placed upon it by Wilcox at the time the alleged crime was committed.' 366 U.S. 213, 221—222, 81 S.Ct. 1057. Mr. Justice Black and Mr. Justice Douglas concurred in the reversal of the conviction on the basis that Wilcox was right and therefore failure to include embezzled funds in taxable income was not a crime. However, Mr. Justice Black strongly disagreed with the prospective manner in which the overruling was done.
'(O)ne of the great inherent restraints upon this Court's departure from the field of interpretation to enter that of lawmaking has been the fact that its judgments could not be limited to prospective application. This Court and in fact all departments of the Government have always heretofore realized that prospective lawmaking is the function of Congress rather than of the courts. We continue to think that this function should be exercised only by Congress under our constitutional system.' 366 U.S., at 225, 81 S.Ct., at 1058.
Compare the dissenting opinion of Mr. Justice Black in Mosser v. Darrow, 341 U.S. 267, 275, 71 S.Ct. 680, 684, 95 L.Ed. 927 (1951), where he stated that a new rule of trustee liability should not be applied retroactively. For discussion of these cases see Currier, supra, n. 2; Note, 71 Yale L.J. 907.
13
Eskridge v. Washington State Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958), applied the rule of Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), requiring the State to furnish transcripts of the trial to indigents on appeal, to a 1935 conviction. The rule in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), that counsel must be appointed to represent an indigent charged with a felony, was actually applied retrospectively in that case since Gideon had collaterally attacked the prior judgment by post-conviction remedies. See also Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650 (1964). Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), involving a coerced confession, was also applied to the petitioner who was here on a collateral attack. See also McNerlin v. Denno, 378 U.S. 575, 84 S.Ct. 1933, 12 L.Ed.2d 1041 (1964). It is also contended that Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961), supports the conclusion of absolute retroactivity in the constitutional area since the petitioner convicted in 1937 was released after a finding that the confession was coerced when judged by standards set forth in our cases decided subsequent to his conviction. See United States ex rel. Angelet v. Fay, 333 F.2d 12, 24 (dissenting opinion of Marshall, J.).
14
Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, (1932) (referring to state court's prospective overruling of prior decision).
15
See Mapp v. Ohio, 367 U.S. 643, 661—662, 81 S.Ct. 1684, 1694—1695 (1961) (concurring opinion of Black, J.).
16
There the Court detailed the lineup of the States on the exclusionary rule before and after Weeks pointing out that at the time of the decision 31 States rejected the rule and 16 States were in agreement with it.
17
In an Appendix to the opinion, the lineup of States regarding the exclusion of illegally seized evidence was catalogued, indicating that there was some change since Wolf—26 States excluded such evidence while 24 did not. At 224—225 of 364 U.S., 80 S.Ct. at 1448—1453.
18
See cases cited in n. 13, supra.
19
Indeed, Mr. Justice Black in concurring said 'that the federal exclusionary rule is not a command of the Fourth Amendment but is a judicially created rule of evidence which Congress might negate.' 338 U.S. 25, at 39—40, 69 S.Ct. 1359, at 1367.
20
In Griffin v. People of State of Illinois, supra, the appeal which was denied because of lack of funds was 'an integral part of the (State's) trial system for finally adjudicating the guilt or innocence of a defendant.' At 18 of 351 U.S., 76 S.Ct. at 590. Precluding an appeal because of inability to pay was analogized to denying the poor a fair trial. In Gideon v. Wainwright, supra, we recognized a fundamental fact that a layman, no matter how intelligent, could not possibly further his claims of innocence and violation of previously declared rights adequately. Because of this the judgment lacked reliability. In Jackson v. Denno, supra, the holding went to the basis of fair hearing and trial because the procedural apparatus never assured the defendant a fair determination of voluntariness. In addition, Mr. Justice White expressed grave doubts regarding the ability of the jury to disregard a confession found to be involuntary if the question of guilt was uncertain.
1
Holmes, The Common Law 5 (Howe ed. 1963).
2
Adkins v. Children's Hosital, 261 U.S. 525, 568, 43 S.Ct. 394, 405, 67 L.Ed. 785 (dissenting opinion).
3
See United States ex rel. Angelet v. Fay, 333 F.2d 12, 27 (dissenting opinion of Judge Marshall).
4
Mr. Justice Miller, joined by Chief Justice Waite, agreed with the Court that the Fifth Amendment barred use at a trial of evidence obtained through a subpoena compelling production of a man's private papers to be used in a criminal prosecution of him; Mr. Justice Miller did not agree that a statute authorizing such a subpoena violated the Fourth Amendment. Boyd v. United States, 116 U.S. 616, 638, 6 S.Ct. 524, 536.
5
See Fay v. Noia, 372 U.S. 391, 445, 83 S.Ct. 822, 852 (Clark, J., dissenting).
6
'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 not 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
| 01
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381 U.S. 741
85 S.Ct. 1751
14 L.Ed.2d 715
Reverend John Earl CAMERON et al.v.Hon. Paul JOHNSON, Governor of Mississippi, et al.
No. 587, Misc.
Supreme Court of the United States
June 7, 1965
Arthur Kinoy, William M. Kunstler, Benjamin E. Smith, Bruce C. Waltzer, Melvin Wulf and Morton Stavis, for appellants.
Joe T. Patterson, Atty. Gen. of Mississippi, and William A. Allain, Asst. Atty. Gen., for appellees.
PER CURIAM.
1
Appellants brought this action, inter alia, under § 1979 of the Revised Statutes, 42 U.S.C. § 1983 (1958 ed.), to enjoin enforcement of the Mississippi Anti-Picketing statute,* on the grounds that it was an unconstitutionally broad regulation of speech, and that it was being applied for the purpose of discouraging appellants' civil rights activities.
2
The motion for leave to proceed in forma pauperis is granted. The judgment, 244 F.Supp. 846, is vacated and the cause remanded for reconsideration in light of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116. On remand, the District Court should first consider whether 28 U.S.C. § 2283 (1958 ed.) bars a federal injunction in this case, see 380 U.S. at 484, n. 2, 85 S.Ct., at 1119. If § 2283 is not a bar, the court should then determine whether relief is proper in light of the criteria set forth in Dombrowski.
3
Mr. Justice BLACK, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.
4
I dissent from the reversal of this judgment and from the manner in which it is done. A cryptic, uninformative per curiam order is no way, I think, for this Court to decide a case involving as this one does a State's power to make it an offense for people to obstruct public streets and highways and to block ingress and egress to and from its public buildings and properties. The case also involves the question whether, having passed such a law, valid on its face, the State can prosecute offenders in its own courts or whether United States courts have power to enjoin all state prosecutions merely because of a charge that the law is unconstitutional on its face, without first determining the constitutionality of the statute.
5
Every person who has the slighest information about what is going on in this country can understand the importance of these issues. The summary disposition the Court makes of this case fails properly to enlighten state or federal courts or the people who deserve to know what are the rights of the people, the rights of affected groups, the rights of the Federal Government, and the rights of the States in this field of activities which encompasses some of the most burning, pressing and important issues of our time. There are many earnest, honest, good people in this Nation who are entitled to know exactly how far they have a constitutional right to go in using the public streets to advocate causes they consider just. State officials are also entitled to the same information. The Court has already waited entirely too long, in my judgment, to perform its duty of clarifying these constitutional issues.1 These issues are of such great importance that I am of the opinion that before this Court relegates the States to the position of mere onlookers in struggles over their streets and the accesses to their public buildings, this Court should at least write an opinion making clear to the States and interested people the boundaries between what they can do in this field and what they cannot. Today's esoteric and more or less mysterious per curiam order gives no such information.
6
This action was brought by and on behalf of picketers and demonstrators in Mississippi, some of whom have charges now pending against them which were brought in the Mississippi state courts2 for violating a Mississippi statute which provided:
7
'It shall be unlawful for any person, singly or in concert with others, to engage in picketing or mass demonstrations in such a manner as to obstruct or interfere with free ingress or egress to and from any public premises, State property, county or municipal courthouses, city halls, office buildings, jails, or other public buildings or property owned by the State of Mississippi or any county or municipal government located therein or with the transaction of public business or administration of justice therein or thereon conducted or so as to obstruct or interfere with free use of public streets, sidewalks or other public ways adjacent or contiguous thereto.'3
8
Their complaint in the United States District Court asked that the Governor of Mississippi and other state officials be enjoined from enforcing the statute against them and others. The complaint alleged that the law was unconstitutional on its face and as applied to the plaintiffs and persons similarly situated because the language of the statute was so vague and ambiguous that a person of ordinary intelligence could not understand it, and so broad and sweeping in its terms that it could be used, had been used, and would be used, to harass and persecute the plaintiffs and others, not merely for blocking streets and doors and passageways, but also for simply picketing and demonstrating, activities which this statute does not prohibit.4 They alleged in addition that the Mississippi Legislature actually passed the law to discourage picketers and demonstrators from protesting against state denial of voting rights to Negroes. The District Court majority found as a fact on the evidence stipulated by the parties that neither the plaintiffs nor anyone else had been interfered with for simply picketing and demonstrating,5 and also found that
9
'on the occasions in suit when some of the plaintiffs were arrested and charged with violating this Act, that such persons deliberately and intentionally blocked the sidewalk and one of the entrances to the county courthouse in Forrest County, Mississippi, by walking so close together as to make use of such entrance and exit to and from said county courthouse by the officials and business visitors impossible.'
10
The District Court held that no serious claim could be made that the statute was unconstitutionally vague or too broad on its face, and therefore refused to issue an injunction forbidding the prosecution of offenses under that law. And having found from the evidence that there had been no harassment of the plaintiffs, except as harassment could be said to exist in the ordinary enforcement of any valid law, the court refused to enjoin the state officials from enforcing the law against them and others, and dismissed the complaint.6
11
If, as I believe, the Mississippi statute is not unconstitutional on its face, then the District Court in dismissing the complaint and leaving the trials to the state courts acted in accordance with an unbroken line of this Court's cases going back to the early days of this country. See, e.g., 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; Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322; Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927. It is true that Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, held that state officials could be enjoined from harassing people by starting multitudinous criminal prosecutions against them where severe cumulative punishments might accrue before the constitutionality of the state law involved could be tested. In the absence of some such extraordinary situation, however, this Court has uniformly held that federal courts should refrain from interfering with enforcement of state criminal laws. Thus in Douglas v. City of Jeannette, supra, this Court found no reason to permit a federal court to enjoin a state criminal proceeding even though the statute involved was the same day declared unconstitutional in a similar application. Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292.7
12
The Court in its cryptic per curiam order directs that 'On remand, the District Court should first consider whether 28 U.S.C. § 2283 (1958 ed.) bars a federal injunction in this case * * *.' But the District Court has already considered § 22838 and at the very beginning of its opinion stated that § 2283
13
'* * * is not jurisdictional, but expresses very clearly and definitely the policy and thinking of Congress. Such a statute has been on the books for many years and still stands in the above quoted form. Certainly there are times and occasions which are exceptional, when it is proper for the Court to enjoin the prosecution of a criminal case, but the facts of this case and of this record do not approach such a situation.' 244 F.Supp., at 851.
14
The appellants argue that 28 U.S.C. § 2283, which bars injunctions against actions already instituted in state courts, is not applicable here because the pending prosecutions were removed and the remand orders have been stayed, and because in this class action 'The basic relief sought in the complaint is the enjoining of the prospective enforcement of the state statute * * *.' The question of applicability of § 2283 is here on appeal and if the Court is uncertain about that statute's application here it has the duty to decide the question now and not remand to the lower court which has already decided it.
15
The Court's exceedingly brief order directs the District Court on remand, if § 2283 does not bar this action, to 'determine whether relief is proper in light of the criteria set forth in Dombrowski' v. Pfister, 380 U.S. 479, 85 S.Ct. 1116. Apparently the Court means to indicate that this recent decision created a new rule authorizing federal courts to enjoin state officers from enforcing state laws even though clearly and narrowly drawn to forbid picketers and demonstrators from obstructing street traffic and blocking the entrances of public buildings. The Court by citing Dombrowski seems to be indicating the existence of such a rule, since it would be a futile gesture to remand the case to the District Court merely to have it state formally what it said in dismissing under the Jeannette rule before: that 'There is no basis of fact in this record or by a reasonable construction of the statute by which its constitutionality could be doubted.' Since the District Court has expressed its view that the statute is constitutional on its face and has found in addition that there has been no unlawful harassing application of it, there is no reason for us to remand the case to the District Court unless this Court wants either to upset the District Court's findings of fact or to order the District Court to hold, as this Court held about a subversive activities statute in Dombrowski, that the statute challenged is also unconstitutional on its face.
16
I did not participate in Dombrowski, but I do not think it is applicable here. Dombbrowski did approve federal district court injunctions to prevent state officers from enforcing a state statute alleged and found to be void on its face as a violation of the First and Fourteenth Amendments on the ground that overbreadth made it susceptible of sweeping and improper application abridging freedom of expression, where it was also alleged that the statute was part of a plan 'to employ arrests, seizures, and threats of prosecution' under the statute in a way that would discourage the complainants and their supporters from asserting and attempting to vindicate their constitutional rights. This Court in Dombrowski held, as I read the opinion, that an injunction against any enforcement of any kind of the state statute (as distinguished from an order enjoining state officers from committing lawless acts) could issue there only because (1) there were threats of prosecutions purely to harass, with no hope of ultimate success, (2) the law was challenged as, and found to be on its face, an 'overly broad and vague regulation of expression,' and (3) 'no readily apparent construction suggests itself as a vehicle for rehabilitating the statute in a single prosecution * * *.' Crucial to the holding in Dombrowski that any enforcement whatever of the statute should be enjoined was this Court's finding that the statute involved was unconstitutional on its face. This is clearly shown by the Court's statement that:
17
'(A)bstention serves no legitimate purpose where a statute regulating speech is properly attacked on its face, and where, as here, the conduct charged in the indictments is not within the reach of an acceptable limiting construction readily to be anticipated as the result of a single criminal prosecution and is not the sort of 'hardcore' conduct that would obviously be prohibited under any construction.' 380 U.S., at 491—492, 85 S.Ct., at 1123. (Emphasis supplied.)
18
Dombrowski also indicates to me that there might be cases in which state or federal officers, acting under color of a law which is valid, could be enjoined from engaging in unlawful conduct which deprives persons of their federally guaranteed statutory or constitutional rights. Compare 17 Stat. 13, 42 U.S.C. § 1983 (1958 ed). Stating these bases for permitting injunction against all enforcement in Dombrowski, most of which bases are not present here, is enough without more to show that Dombrowski cannot control the decision in this case. Here there is no allegation of improper conduct by law enforcement officers, and in fact, there is a specific finding to the contrary. And certainly the one unquestionably indispensable ingredient of Dombrowski required for a blanket injunction on enforcement—a finding that the statute is unconstitutionally vague or broad on its face—is absent here unless the Court is convinced, without even hearing argument, that this Mississippi statute is unconstitutional on its face as an infringement on constitutionally protected expression.
19
I think that no such claim of unconstitutionality on its face can possibly be maintained. What the Mississippi statute forbids is so clear that any person of ordinary intelligence can or should understand it. I find it hard to take seriously a vagueness argument, since I doubt that there is a fourth grade schoolboy in this country who would not understand that the statute forbids him, either alone or with others, to block or obstruct ingress and egress to and from Mississippi public buildings (here a courthouse) and to obstruct free use of the streets adjacent to those public properties. Nor is the statute overly broad in what it covers. It does not even undertake to forbid or regulate picketing or demonstrating on the streets (as I think it could—see Cox v. State of Louisiana, 379 U.S. 559, 575, 85 S.Ct. 453, 466, 13 L.Ed.2d 471 (concurring opinion); National Labor Relations Board v. Fruit & Vegetable Packers, 377 U.S. 58, 76, 84 S.Ct. 1063, 1073, 12 L.Ed.2d 129 (concurring opinion). It simply modestly provides that those who carry on such activities shall do so in a way that will not obstruct others who want to use the streets to travel or want to go in or out of a public building. The Mississippi statute is narrowly and precisely drawn, patently designed to accomplish this objective. Thus it fits this Court's often-repeated description of the kind of law which should be drawn in the State's exercise of its generally unquestioned constitutional power to regulate picketing and street activities. See, e.g., Cox v. State of Louisiana, 379 U.S. 536, 554—555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471; Thornhill v. State of Alabama, 310 U.S. 88, 105, 60 S.Ct. 736, 745, 84 L.Ed. 1093; Schneider v. State of New Jersey, 308 U.S. 147, 160—161, 60 S.Ct. 146, 161, 84 L.Ed. 155. Far from questioning the power of States to regulate conduct on the streets and in public buildings, this Court said in Schneider v. State, supra, at 160, 60 S.Ct. at 150:
20
'Municipal authorities, as trustees for the public, have the duty to keep their communities' streets open and available for movement of people and property, the primary purpose to which the streets are dedicated. So long as legislation to this end does not abridge the constitutional liberty of one rightfully upon the street to impart information through speech or the distribution of literature, it may lawfully regulate the conduct of those using the streets. For example a person could not exercise this liberty by taking his stand in the middle of a crowded street, contrary to traffic regulations, and maintain his position to the stoppage of all traffic * * *.' It would seem inconsistent with our whole federal system to say that the Federal Constitution somehow takes away from States and their subdivisions the general power to control their streets and ingress and egress to and from their public buildings and other public properties. Such state control would have to be exercised consistently with special federal constitutional guarantees, such as the right not to be discriminated against on account of race, color or religion; but the statute here does not, on its face draw any such invidious discriminations and the statute is attacked on its face. And of course Mississippi has no less power over its public buildings and streets than does any other State.
21
The Mississippi statute is in many respects like one that this Court sustained a few months ago against a challenge that it was void for vagueness on its face, and that it was an unjustified restriction upon the freedoms guaranteed by the First and Fourteenth Amendments. That statute, modeled after an Act of Congress passed in 1950, 64 Stat. 1018, 18 U.S.C. § 1507 (1958 ed.), made it an offense in Louisiana to picket or parade in or near a courthouse with an intent of interfering with or obstructing or impeding the administration of justice. The Court's opinion stated:
22
'The conduct which is the subject of this statute—picketing and parading—is subject to regulation even though intertwined with expression and association.' Cox v. Louisiana 379 U.S. 559, 563, 85 S.Ct. 476, 480.
23
And in a companion case, decided the same day, this Court stated: 'Governmental authorities have the duty and responsibility to keep their streets open and available for movement.' Cox v. Louisiana, 379 U.S. 536, 554—555, 85 S.Ct. 453, 464. 'A group of demonstrators,' this Court said, 'could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations.' Id., at 555, 85 S.Ct. at 464. The Court also emphasized in that same case that the 'control of travel on the streets is a clear example of governmental responsibility to insure' 'public order, without which liberty itself would be lost in the excesses of anarchy.' Id., at 554, 85 S.Ct. at 464. It is true that we have only recently held that Mississippi must not deny the constitutional right of Negroes to register and vote. United States v. Mississippi, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717. But this, of course, does not mean that no good or valid law could come out of the State of Mississippi. We should without hesitation condemn as unconstitutional discriminatory voting laws of Mississippi or of any other State. We should with equal firmness, however, approve a law which on its face is designed merely to carry out the State's responsibility to protect people who want to get into and out of the State's public buildings and to move along its highways freely without obstruction.
24
I cannot believe for one moment that this Court in Dombrowski intended to authorize federal injunctions completely suspending all enforcement of a constitutionally valid state criminal law merely because state defendants allege that state officials are about to harass them by doing no more than enforcing that valid law against them in the state courts. If Dombrowski held any such thing, I think the quicker that case is reconsidered in order to give it a 'limiting construction' the better it will be for the courts, the States, the United States and the people in this country who want to live in an atmosphere of peace and quiet. Creating new hurdles to the conviction of people who violate valid laws cannot be ranked as one of the most pressing and exigent needs of the times, to say the least. Perhaps at no time in the Nation's history has there been a greater need to make clear to all that the United States Constitution does not render States impotent to require people permitted to advocate views and air grievances on the streets to do so without obstructing the use of those streets by those who want to use them to move from place to place—the primary use for which all the people pay taxes to build and maintain streets.
25
The record in this case tells us that there are probably hundreds of cases like these in one State alone. It is not difficult to foresee that reversal of the District Court's denial of injunction here will be a signal and invitation for many, many more efforts to tie the hands of state officials in many more States on charges that threatened prosecutions under valid laws are prompted by a desire to harass. Much has been said of late about the threat to prompt and efficient administration of justice from the increasing workload of our United States courts.9 If that is a valid argument in deciding cases, it is not amiss to point out that the rule which the Court implicitly adopts here is bound to bring an ever-increasing number of cases into federal courts, where state prosecutions will be enjoined until a federal court can first weigh the motives of state officials in instituting prosecutions. This of course means more and more delays between the arrests of people accused of violating state laws and their trials. The law's delays—which many believe are really a guilty man's most effective defense—are bound to be multiplied beyond measure. Moreover, it should not be forgotten that this is a big country—too big to expect the Federal Government to take over the creation and enforcement of local criminal laws throughout the country. The Nation was not formed with any such purpose in mind. It is wise and right and in conformity with the national governmental plan for federal courts to be vigilant and alert to protect federally guaranteed rights. But we put too much strain on the federal courts if we bodily transfer from stateto federal-court jurisdiction what is, in effect, the initial step in the trial of persons charged with violating state or local criminal laws which are far from being unconstitutional on their face. The Federal Constitution certainly does not require us to do it and, in my judgment, forbids it. I would affirm the District Court's judgment.
26
Mr. Justice WHITE, dissenting.
27
I dissent from the per curiam remand of this case on the authority of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, for while I joined the opinion of the Court in Dombrowski, I do not think it is applicable here.
28
The appellants in Dombrowski attacked numerous and sundry provisions of Louisiana's Subversive Activities and Communist Control Law and the Communist Propaganda Control Law on the ground that the statutes 'violate the First and Fourteenth Amendment guarantees securing freedom of expression, because overbreath makes them suspectible of sweeping and improper application abridging those rights.' 380 U.S. 479, 482, 85 S.Ct. 1118. There was also an allegation of threats to enforce these sweeping provisions as part of a 'plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass' the appellants and to discourage their protected activities. The lower court denied relief on the ground that these allegations did not present a case of threatened irreparable injury to constitutional rights warranting the intervention of a federal court. We reversed. The Court, at the outset, fully and explicitly accepted the teaching of the cases 'that federal interference with a State's good-faith administration of its criminal laws is peculiarly inconsistent with our federal framework' and that 'the mere possibility of erroneous initial application of constitutional standards will usually not amount to the irreparable injury necessary to justify a disruption of orderly state proceedings.' 380 U.S., at 484—485, 85 S.Ct., at 1120. Without questioning the rule that the possible invalidity of a state statute is not itself ground for equitable relief, Terrace v. Thompson, 263 U.S. 197, 214, 44 S.Ct. 15, 17, 68 L.Ed. 255, or the imminence of prosecution under such a statute, since no person is immune from prosecution in good faith for alleged criminal acts, Douglas v. City of Jeannette, 319 U.S. 157, 163—164, 63 S.Ct. 877, 881, 87 L.Ed. 1324, we held that there was a sufficient showing of threatened irreparable injury to federal rights, which could not be dissipated by a particular prosecution, to warrant equitable intervention by a federal court. What was controlling on both the exercise of equitable power and the abstention issue was the depiction of a 'situation in which defense of the State's criminal prosecution will not assure adequate vindication of constitutional rights.' 380 U.S., at 485, 85 S.Ct., at 1120. The situation depicted here does not contain the elements which were operative in Dombrowski.
29
Dombrowski did not hold that the traditional equitable limitations on a federal court's power to enjoin imminent or pending criminal proceedings are relaxed whenever a statute is attacked as void on its face or as applied in violation of the First and Fourteenth Amendments. Rather that case makes clear that two particular kinds of challenges to state criminal statutes warrant extraordinary intervention in a State's criminal processes. They are planned prosecutorial misuse of a statute regulating freedom of expression and a vagueness attack on such a statute. Where threats of enforcement are without any expectation of conviction and are 'part of a plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass,' it is obvious that defense in a state criminal prosecution will not suffice to avoid irreparable injury. The very prosecution is said to be a part of the unconstitutional scheme and the scheme, including future use of the statutes, is quite irrelevant to the prosecution in the state courts. Similarly where a plethora of statutory provisions are assailed as invalidly vague, uncertain or overbroad, with a consequent reach into areas of expression protected by the First Amendment, and such provisions are not susceptible of clarifying construction under the impact of one case, defense in the state prosecution cannot remove the unconstitutional vice of vagueness. For 'those affected by a statute are entitled to be free of the burdens of defending prosecutions, however expeditious, aimed at hammering out the structure of the statute piecemeal, with no likelihood of obviating similar uncertainty for others.' Dombrowski v. Pfister, 380 U.S., at 491, 85 S.Ct., at 1123. To relegate the party to defense in a state proceeding would be likely to leave standing a statute susceptible of having a severe in terrorem effect on expression, even if one prosecuted under such a statute is not convicted. It is this reasoning that accounts for relaxation of the abstention doctrine where sweeping and unclear statutes are attacked on their face, as in Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377, a case quite pertinent to the rationale of Dombrowski.
30
Here there is no more harassment alleged than that ordinarily and necessarily entailed by a criminal prosecution based on a good faith belief that the defendants have violated a statute. Although it is said that the statute is aimed at demonstrations, and that the prosecutions interfere with them, these allegations do not charge a misuse of the statute. Indeed, the petitioners allege that the picketing said to be unlawful under it was peaceful and nonobstructive, and the State claims quite the contrary. This issue is at the core of the criminal trial and to decide it in a federal court represents a wholly duplicative adjudication of an ordinary factual matter in dispute in a state criminal trial.
31
Nor do I think that any substantial claim of vagueness or overbroadness can be made about the statute here at issue.1 Its provisions are these:
32
'It shall be unlawful for any person, singly or in concert with others, to engage in picketing or mass demonstrations in such a manner as to obstruct or interfere with free ingress or egress to and from any public premises. State property, county or municipal courthouses, city halls, office buildings, jails, or other public buildings or property owned by the State of Mississippi or any county or municipal government located therein or with the transaction of public business or administration of justice therein or thereon conducted or so as to obstruct or interfere with free use of public streets, sidewalks or other public ways adjacent or contiguous thereto.'
33
To the terms 'obstruct' and 'interfere' raise no issues of vagueness or overbreadth such as were considered to be present in Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, and Dombrowski, 380 U.S. 479, 85 S.Ct. 1116, for the terms are neither unclear nor open-ended. The statute does not deal with belief or expression as such—it does not ban all forms of picketing, Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 453, 13 L.Ed.2d 471—but rather with obstructions to and interferences with ingress or egress to and from public buildings and the sidewalks and streets contiguous thereto, assuredly permissible subjects of state regulation. Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453. The statute does 'aim specifically at evils within the allowable area of State control,' Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 742, and does not leave one to guess at where fanciful possibility ends and intended coverage begins. Cf. Baggett v. Bullitt, 377 U.S. 360, 373—375, 84 S.Ct. 1316, 1324.
34
The constitutional challenge to this statute which thus emerges is, in my view, an assertion that the type of conduct covered by the clear terms of the statute, obstructive picketing at public buildings, for example, cannot constitutionally be proscribed. Whether the attack is made on the face of the statute or as applied is beside the point, for in neither case would there be those special circumstances which Dombrowski requires to sanction federal intervention into a State's criminal processes. Whatever 'criteria' Dombrowski contains, they do not indicate that in this situation the ordinary rule barring injunctive relief against state criminal prosecutions should be waived.
35
'(T)he mere possibility of erroneous initial application of constitutional standards will usually not amount to the irreparable injury necessary to justify a disruption of orderly state proceedings,' and what is required for extraordinary intervention is a 'situation in which defense of the State's criminal prosecution will not assure adequate vindication of constitutional rights.' Dombrowski v. Pfister, 380 U.S. 479, 484 485, 85 S.Ct. 1116, 1120. In Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, the Court denied injunctive relief against threatened application of a city ordinance to constitutionally protected religious solicitation, 'since the lawfulness or constitutionality of the statute or ordinance on which the prosecution is based may be determined as readily in the criminal case as in a suit for an injunction.' 319 U.S., at 163, 63 S.Ct., at 881. The constitutional challenge to this Mississippi statute, unlike the attack on the statutes in Dombrowski v. Pfister and Baggett v. Bullitt, but indistinguishable from that in Douglas v. City of Jeannette, does not entail 'extensive adjudications, under the impact of a variety of factual situations,' Baggett v. Bullitt, 377 U.S. 360, 378, 84 S.Ct. 1316, 1326, to bring it within constitutional bounds. This is not a case where 'no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution.' Dombrowski v. Pfister, 380 U.S., at 491, 85 S.Ct., at 1123.
36
In these circumstances it is difficult to see what hazards to federal rights are posed by requiring one to follow orderly proceedings in the state courts. Numerous cases establish that the possible invalidity of a statute, or the imminence of a prosecution under it, itself will not suffice to warrant intervention. Terrace v. Thompson, 263 U.S. 197, 214, 44 S.Ct. 15; Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927; Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322; Beal v. Missouri Pac. R. Co., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577; Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877. Dombrowski v. Pfister is not to the contrary.
37
It is obvious, however, that several of my Brethren find more guidance in Dombrowski than I do and more than I think a district judge can find in either that case or this unrevealing per curiam remand, which ignores the differences between this case and Dombrowski. The issues are important and of immediate concern and I would note probable jurisdiction and set this case down for argument.2
*
House Bill No. 546, Gen.Laws of Miss. 1964, c. 343.
1
See Bell v. State of Maryland, 378 U.S. 226, 242, 84 S.Ct. 1814, 1823, 12 L.Ed.2d 822 (opinion of DOUGLAS, J.); id., at 318, 85 S.Ct. 384 (BLACK, J., dissenting); Hamm v. City of Rock Hill, 379 U.S. 306, 318, 85 S.Ct. 384, 392, 13 L.Ed.2d 300 (BLACK, J., dissenting).
2
We are informed that after the decision of the District Court in the present case, 170 of the state-court defendants removed their prosecutions to a federal district court, purportedly under authority of 28 U.S.C. § 1443 (1958 ed.). The Federal District Court ordered the cases remanded to the state courts. The Court of Appeals stayed the remand orders, and an appeal from those orders is now pending before the Fifth Circuit. Hartfield v. Mississippi, No. 21811; Anderson v. Mississippi, No. 21813; Carmichael v. City of Greenwood, No. 22289. It can be assumed that if appellants are unsuccessful in the Fifth Circuit they will seek review in this Court, which will take at least another year. Today's decision appears to add more devices to the collection of delaying tactics by which state criminal defendants may use collateral litigation in the federal courts to prevent their prosecutions in state courts from coming to trial for many years, if ever.
3
House Bill No. 546, Gen.Laws of Miss. 1964, c. 343.
4
The complaint alleged that the statute violated the First, Fifth, Thirteenth, Fourteenth and Fifteenth Amendments.
5
'The Court, therefore, further finds as a fact that the State of Mississippi is prosecuting the plaintiffs in the state court under said picketing statute in good faith, and is fully entitled under the law to do so to conclusion of such prosecution * * *.' 244 F.Supp., at 848.
6
We understand from the District Court's opinion and conclusions of law that it did not dismiss the complaint on the ground that it thought it necessary to have the state courts construe the statute, but rather on the ground that having found the statute constitutional it dismissed in order for the criminal cases to be tried in the state courts. Moreover, whatever the reasons assigned for dismissal by the District Court, it is well established that an appellee in whose favor a judgment has been rendered is entitled to an affirmance on any proper ground.
7
In an opinion joined by MR. JUSTICE CLARK denying a petition for habeas corpus in similar circumstances, I stated:
'This petition for habeas corpus is denied because the factual allegations fall far short of showing that there are not Mississippi state processes available by appeal or otherwise for petitioner to challenge her state conviction, which processes would effectively protect her constitutional rights, particularly since any denial of such rights by the highest court of a state can be remedied by appropriate appellate proceedings in the Supreme Court of the United States. See 28 U.S.Code Section 2241, 2254 and 1257.' Application of Wyckoff, D.C., 196 F.Supp. 515, discussed in Brown v. Rayfield, 320 F.2d 96, 98—99 (C.A.5th Cir.).
8
'A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.' 28 U.S.C. § 2283 (1958 ed.).
9
See Case v. Nebraska, 381 U.S. 337, 340, 85 S.Ct. 1486 (concurring opinions); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731.
1
House Bill No. 546, Gen.Laws of Miss. 1964, c. 343.
2
As the Court recognizes, the question whether § 2283 bars an injunction in suits brought under 42 U.S.C. § 1983 (1958 ed.) is an open one; I think that the presence of that issue is a further reason why a per curiam remand is inappropriate.
| 23
|
381 U.S. 532
85 S.Ct. 1628
14 L.Ed.2d 543
Billie Sol ESTES, Petitioner,v.STATE OF TEXAS.
No. 256.
Argued April 1, 1965.
Decided June 7, 1965.
Rehearing Denied Oct. 11, 1965.
See 86 S.Ct. 18.
[Syllabus from pages 532-534 intentionally omitted]
John D. Cofer and Hume Cofer, Austin, Tex., for petitioner.
Waggoner Carr, Austin, Tex., and Leon Jaworski, Houston, Tex., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.*
1
The question presented here is whether the petitioner, who stands convicted in the District Court for the Seventh Judicial District of Texas at Tyler for swindling,1 was deprived of his right under the Fourteenth Amendment to due process by the televising and broadcasting of his trial. Both the trial court and the Texas Court of Criminal Appeals found against the petitioner. We hold to the contrary and reverse his conviction.
I.
2
While petitioner recites his claim in the framework of Canon 35 of the Judicial Canons of the American Bar Association he does not contend that we should enshrine Canon 35 in the Fourteenth Amendment, but only that the time honored principles of a fair trial were not followed in his case and that he was thus convicted without due process of law. Canon 35, of course, has of itself no binding effect on the courts but merely expresses the view of the Association in opposition to the broadcasting, televising and photographing of court proceedings. Likewise, Judicial Canon 28 of the Integrated State Bar of Texas, 27 Tex.B.J. 102 (1964), which leaves to the trial judge's sound discretion the telecasting and photographing of court proceedings, is of itself not law. In short, the question here is not the validity of either Canon 35 of the American Bar Association or Canon 28 of the State Bar of Texas, but only whether petitioner was tried in a manner which comports with the due process requirement of the Fourteenth Amendment.
3
Petitioner's case was originally called for trial on September 24, 1962, in Smith County after a change of venue from Reeves County, some 500 miles west. Massive pretrial publicity totaling 11 volumes of press clippings, which are on file with the Clerk, had given it national notoriety. All available seats in the courtroom were taken and some 30 persons stood in the aisles. However, at that time a defense motion to prevent telecasting, broadcasting by radio and news photography and a defense motion for continuance were presented, and after a two-day hearing the former was denied and the latter granted.
4
These initial hearings were carried live by both radio and television, and news photography was permitted throughout. The videotapes of these hearings clearly illustrate that the picture presented was not one of that judicial serenity and calm to which petitioner was entitled. Cf. Wood v. Georgia, 370 U.S. 375, 383, 82 S.Ct. 1364, 1369, 8 L.Ed.2d 569 (1962); Turner v. State of Louisiana, 379 U.S. 466, 472, 85 S.Ct. 546, 549, 13 L.Ed.2d 424 (1965); Cox v. State of Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 479, 13 L.Ed.2d 487 (1965). Indeed, at least 12 cameramen were engaged in the courtroom throughout the hearing taking motion and still pictures and televising the proceedings. Cables and wires were snaked across the courtroom floor, three microphones were on the judge's bench and others were beamed at the jury box and the counsel table. It is conceded that the activities of the television crews and news photographers led to considerable disruption of the hearings. Moreover, veniremen had been summoned and were present in the courtroom during the entire hearing but were later released after petitioner's motion for continuance had been granted. The court also had the names of the witnesses called; some answered but the absence of others led to a continuance of the case until October 22, 1962. It is contended that this two-day pretrial hearing cannot be considered in determining the question before us. We cannot agree. Pretrial can create a major problem for the defendant in a criminal case. Indeed, it may be more harmful than publicity during the trial for it may well set the community opinion as to guilt or innocence. Though the September hearings dealt with motions to prohibit television coverage and to postpone the trial, they are unquestionably relevant to the issue before us. All of this two-day affair was highly publicized and could only have impressed those present, and also the community at large, with the notorious character of the petitioner as well as the proceeding. The trial witnesses present at the hearing, as well as the original jury panel, were undoubtedly made aware of the peculiar public importance of the case by the press and television coverage being provided, and by the fact that they themselves were televised live and their pictures rebroadcast on the evening show.
5
When the case was called for trial on October 22 the scene had been altered. A booth had been constructed at the back of the courtroom which was painted to blend with the permanent structure of the room. It had an aperture to allow the lens of the cameras an unrestricted view of the courtroom. All television cameras and newsreel photographers were restricted to the area of the booth when shooting film or telecasting.
6
Because of continual objection, the rules governing live telecasting, as well as radio and still photos, were changed as the exigencies of the situation seemed to require. As a result, live telecasting was prohibited during a great portion of the actual trial. Only the opening2 and closing arguments of the State, the return of the jury's verdict and its receipt by the trial judge were carried live with sound. Although the order allowed videotapes of the entire proceeding without sound, the cameras operated only intermittently, recording various portions of the trial for broadcast on regularly scheduled newscasts later in the day and evening. At the request of the petitioner, the trial judge prohibited coverage of any kind, still or television, of the defense counsel during their summations to the jury.
7
Because of the varying restrictions placed on sound and live telecasting the telecasts of the trial were confined largely to film clips shown on the stations' regularly scheduled news programs. The news commentators would use the film of a particular part of the day's trial activities as a backdrop for their reports. Their commentary included excerpts from testimony and the usual reportorial remarks. On one occasion the videotapes of the September hearings were rebroadcast in place of the 'late movie.'
II.
8
In Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), this Court constructed a rule that the televising of a defendant in the act of confessing to a crime was inherently invalid under the Due Process Clause of the Fourteenth Amendment even without a showing of prejudice or a demonstration of the nexus between the televised confession and the trial. See id., at 729, 83 S.Ct. 1421 (dissenting opinion of Clark, J.). Here, although there was nothing so dramatic as a home-viewed confession, there had been a bombardment of the community with the sights and sounds of a two-day hearing during which the original jury panel, the petitioner, the lawyers and the judge were highly publicized. The petitioner was subjected to characterization and minute electronic scrutiny to such an extent that at one point the photographers were found attempting to picture the page of the paper from which he was reading while sitting at the counsel table. The two-day hearing and the order permitting television at the actual trial were widely known throughout the community. This emphasized the notorious character that the trial would take and, therefore, set it apart in the public mind as an extraordinary case or, as Shaw would say, something 'not conventionally unconventional.' When the new jury was empaneled at the trial four of the jurors selected had seen and heard all or part of the broadcasts of the earlier proceedings.
III.
9
We start with the proposition that it is a 'public trial' that the Sixth Amendment guarantees to the 'accused.' The purpose of the requirement of a public trial was to guarantee that the accused would be fairly dealt with and not unjustly condemned. History had proven that secret tribunals were effective instruments of oppression. As our Brother Black so well said in In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948):
10
'The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy's abuse of the lettre de cachet. * * * Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution.' At 268—270, 68 S.Ct. at 505—506. (Footnotes omitted.)
11
It is said however, that the freedoms granted in the First Amendment extend a right to the news media to televise from the courtroom, and that to refuse to honor this privilege is to discriminate between the newspapers and television. This is a misconception of the rights of the press.
12
The free press has been a mighty catalyst in awakening public interest in governmental affairs, exposing corruption among public officers and employees and generally informing the citizenry of public events and occurrences, including court proceedings. While maximum freedom must be allowed the press in carrying on this important function in a democratic society its exercise must necessarily be subject to the maintenance of absolute fairness in the judicial process. While the state and federal courts have differed over what spectators may be excluded from a criminal trial, 6 Wigmore, Evidence § 1834 (3d ed. 1940), the amici curiae brief of the National Association of Broadcasters and the Radio Television News Directors Association, says, as indeed it must, that 'neither of these two amendments (First and Sixth) speaks of an unlimited right of access to the courtroom on the part of the broadcasting media. * * *' At 7. Moreover, they recognize that the 'primary concern of all must be the proper administration of justice'; that 'the life or liberty of any individual in this land should not be put in jeopardy because of actions of any news media'; and that 'the due process requirements in both the Fifth and Fourteenth Amendments and the provisions of the Sixth Amendment require a procedure that will assure a fair trial. * * *' At 3—4.
13
Nor can the courts be said to discriminate where they permit the newspaper reporter access to the courtroom. The television and radio reporter has the same privilege. All are entitled to the same rights as the general public. The news reporter is not permitted to bring his typewriter or printing press. When the advances in these arts permit reporting by printing press or by television without their present hazards to a fair trial we will have another case.
IV.
14
Court proceedings are held for the solemn purpose of endeavoring to ascertain the truth which is the sine qua non of a fair trial. Over the centuries Anglo-American courts have devised careful safeguards by rule and otherwise to protect and facilitate the performance of this high function. As a result, at this time those safeguards do not permit the televising and photographing of a criminal trial, save in two States and there only under restrictions. The federal courts prohibit it by specific rule. This is weighty evidence that our concepts of a fair trial do not tolerate such an indulgence. We have always held that the atmosphere essential to the preservation of a fair trial—the most fundamental of all freedoms—must be maintained at all costs. Our approach has been through rules, contempt proceedings and reversal of convictions obtained under unfair conditions. Here the remedy is clear and certain of application and it is our duty to continue to enforce the principles that from time immemorial have proven efficacious and necessary to a fair trial.
V.
15
The State contends that the televising of portions of a criminal trial does not constitute a denial of due process. Its position is that because no prejudice has been shown by the petitioner as resulting from the televising, it is permissible; that claims of 'distractions' during the trial due to the physical presence of television are wholly unfounded; and that psychological considerations are for psychologists, not courts, because they are purely hypothetical. It argues further that the public has a right to know what goes on in the courts; that the court has no power to 'suppress, edit, or censor events, which transpire in proceedings before it,' citing Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947); and that the televising of criminal trials would be enlightening to the public and would promote greater respect for the courts.
16
At the outset the motion should be dispelled that telecasting is dangerous because it is new. It is true that our empirical knowledge of its full effect on the public, the jury or the participants in a trial, including the judge, witnesses and lawyers, is limited. However, the nub of the question is not its newness but, as Mr. Justice Douglas says, 'the insidious influences which it puts to work in the administration of justice.' Douglas, The Public Trial and the Free Press, 33 Rocky Mt. L.Rev. 1 (1960). These influences will be detailed below, but before turning to them the State's argument that the public has a right to know what goes on in the courtroom should be dealt with.
17
It is true that the public has the right to be informed as to what occurs in its courts, but reporters of all media, including television, are always present if they wish to be and are plainly free to report whatever occurs in open court through their respective media. This was settled in Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941), and Pennekamp v. State of Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946), which we reaffirm. These reportorial privileges of the press were stated years ago:
18
'The law, however, favors publicity in legal proceedings, so far as that object can be attained without injustice to the persons immediately concerned. The public are permitted to attend nearly all judicial inquiries, and there appears to be no sufficient reason why they should not also be allowed to see in print the reports of trials, if they can thus have them presented as fully as they are exhibited in court, or at least all the material portion of the proceedings impartially stated, so that one shall not, by means of them, derive erroneous impressions, which he would not have been likely to receive from hearing the trial itself.' 2 Cooley's Constitutional Limitations 931—932 (Carrington ed. 1927).
19
The State, however, says that the use of television in the instant case was 'without injustice to the person immediately concerned,' basing its position on the fact that the petitioner has established no isolatable prejudice and that this must be shown in order to invalidate a conviction in these circumstances. The State paints too broadly in this contention, for this Court itself has found instances in which a showing of actual prejudice is not a prerequisite to reversal. This is such a case. It is true that in most cases involving claims of due process deprivations we require a showing of identifiable prejudice to the accused. Nevertheless, at times a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process. Such a case was In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955), where Mr. Justice Black for the Court pointed up with his usual clarity and force:
20
'A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. * * * (T)o perform its high function in the best way 'justice must satisfy the appearance of justice.' Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (99 L.Ed. 11).' At 136, 75 S.Ct. at 625. (Emphasis supplied.)
21
And, as Chief Justice Taft said in Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, almost 30 years before:
22
'the requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice. Every procedure which would offer a possible temptation to the average man * * * to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused denies the latter due process of law.' At 532, 47 S.Ct. at 444. (Emphasis supplied.)
23
This rule was followed in Rideau, supra, and in Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965). In each of these cases the Court departed from the approach it charted in Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872, (1952), and in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), where we made a careful examination of the facts in order to determine whether prejudice resulted. In Rideau and Turner the Court did not stop to consider the actual effect of the practice but struck down the conviction on the ground that prejudice was inherent in it. Likewise in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), we applied the same rule, although in different contexts.
24
In this case it is even clearer that such a rule must be applied. In Rideau, Irvin and Stroble, the pretrial publicity occurred outside the courtroom and could not be effectively curtailed. The only recourse other than reversal was by contempt proceedings. In Turner the probability of prejudice was present through the use of deputy sheriffs, who were also witnesses in the case, as shepherds for the jury. No prejudice was shown but the circumstances were held to be inherently suspect, and therefore, such a showing was not held to be a requisite to reversal. Likewise in this case the application of this principle is especially appropriate. Television in its present state and by its very nature, reaches into a variety of areas in which it may cause prejudice to an accused. Still one cannot put his finger on its specific mischief and prove with particularity wherein he was prejudiced. This was found true in Murchison, Tumey, Rideau and Turner. Such untoward circumstances as were found in those cases are inherently bad and prejudice to the accused was presumed. Forty-eight of our States and the Federal Rules have deemed the use of television improper in the courtroom. This fact is most telling in buttressing our conclusion that any change in procedure which would permit its use would be inconsistent with our concepts of due process in this field.
VI.
25
As has been said, the chief function of our judicial machinery is to ascertain the truth. The use of television, however, cannot be said to contribute materially to this objective. Rather its use amounts to the injection of an irrelevant factor into court proceedings. In addition experience teaches that there are numerous situations in which it might cause actual unfairness—some so subtle as to defy detection by the accused or control by the judge. We enumerate some in summary:
26
1. The potential impact of television on the jurors is perhaps of the greatest significance. They are the nerve center of the fact-finding process. It is true that in States like Texas where they are required to be sequestered in trials of this nature the jurors will probably not see any of the proceedings as televised from the courtroom. But the inquiry cannot end there. From the moment the trial judge announces that a case will be televised it becomes a cause celebre. The whole community, including prospective jurors, becomes interested in all the morbid details surrounding it. The approaching trial immediately assumes an important status in the public press and the accused is highly publicized along with the offense with which he is charged. Every juror carries with him into the jury box these solemn facts and thus increases the change of prejudice that is present in every criminal case. And we must remember that realistically it is only the notorious trial which will be broadcast, because of the necessity for paid sponsorship. The conscious or unconscious effect that this may have on the juror's judgment cannot be evaluated, but experience indicates that it is not only possible but highly probable that it will have a direct bearing on his vote as to guilt or innocence. Where pretrial publicity of all kinds has created intense public feeling which is aggravated by the telecasting or picturing of the trial the televised jurors cannot help but feel the pressures of knowing that friends and neighbors have their eyes upon them. If the community be hostile to an accused a televised juror, realizing that he must return to neighbors who saw the trial themselves, may well be led 'not to hold the balance nice, clear and true between the State and the accused. * * *' Moreover, while it is practically impossible to assess the effect of television on jury attentiveness, those of us who know juries realize the problem of jury 'distraction.' The State argues this is de minimis since the physical disturbances have been eliminated. But we know that distractions are not caused solely by the physical presence of the camera and its telltale red lights. It is the awareness of the fact of telecasting that is felt by the juror throughout the trial. We are all self-conscious and uneasy when being televised. Human nature being what it is, not only will a juror's eyes be fixed on the camera, but also his mind will be preoccupied with the telecasting rather than with the testimony.
27
Furthermore, in many States the jurors serving in the trial may see the broadcasts of the trial proceedings. Admittedly, the Texas sequestration rule would prevent this occurring there.3 In other States following no such practice jurors would return home and turn on the TV if only to see how they appeared upon it. They would also be subjected to reenactment and emphasis of the selected parts of the proceedings which the requirements of the broadcasters determined would be telecast and would be subconsciously influenced the more by that testimony. Moreover, they would be subjected to the broadest commentary and criticism and perhaps the well-meant advice of friends, relatives and inquiring strangers who recognized them on the streets.
28
Finally, new trials plainly would be jeopardized in that potential jurors will often have seen and heard the original trial when it was telecast. Yet viewers may later be called upon to sit in the jury box during the new trial. These very dangers are illustrated in this case where the court, due to the defendant's objections, permitted only the State's opening and closing arguments to be broadcast with sound to the public.
29
2. The quality of the testimony in criminal trials will often be impaired. The impact upon a witness of the knowledge that he is being viewed by a vast audience is simply incalculable. Some may be demoralized and frightened, some cocky and given to overstatement; memories may falter, as with anyone speaking publicly, and accuracy of statement may be severely undermined. Embarrassment may impede the search for the truth, as may a natural tendency toward overdramatization. Furthermore, inquisitive strangers and 'cranks' might approach witnesses on the street with jibes, advice or demands for explanation of testimony. There is little wonder that the defendant cannot 'prove' the existence of such factors. Yet we all know from experience that they exist.
30
In addition the invocation of the rule against witnesses is frustrated. In most instances witnesses would be able to go to their homes and view broadcasts of the day's trial proceedings, notwithstanding the fact that they had been admonished not to do so. They could view and hear the testimony of preceding witnesses, and so shape their own testimony as to make its impact crucial. And even in the absence of sound, the influences of such viewing on the attitude of the witness toward testifying, his frame of mind upon taking the stand or his apprehension of withering cross-examination defy objective assessment. Indeed, the mere fact that the trial is to be televised might render witnesses reluctant to appear and thereby impede the trial as well as the discovery of the truth.
31
While some of the dangers mentioned above are present as well in newspaper coverage of any important trial, the circumstances and extraneous influences intruding upon the solemn decorum of court procedure in the televised trial are far more serious than in cases involving only newspaper coverage.
32
3. A major aspect of the problem is the additional responsibilities the presence of television places on the trial judge. His job is to make certain that the accused receives a fair trial. This most difficult task requires his undivided attention. Still when television comes into the courtroom he must also supervise it. In this trial, for example, the judge on several different occasions—aside from the two days of pretrial—was obliged to have a hearing or enter an order made necessary solely because of the presence of television. Thus, where telecasting is restricted as it was here, and as even the State concedes it must be, his task is made much more difficult and exacting. And, as happened here, such rulings may unfortunately militate against the fairness of the trial. In addition, laying physical interruptions aside, there is the ever-present distraction that the mere awareness of television's presence prompts. Judges are human beings also and are subject to the same psychological reactions as laymen. Telecasting is particularly bad where the judge is elected, as is the case in all save a half dozen of our States. The telecasting of a trial becomes a political weapon, which, along with other distractions inherent in broadcasting, diverts his attention from the task at hand—the fair trial of the accused.
33
But this is not all. There is the initial decision that must be made as to whether the use of television will be permitted. This is perhaps an even more crucial consideration. Our judges are highminded men and women. But it is difficult to remain oblivious to the pressures that the news media can bring to bear on them both directly and through the shaping of public opinion. Moreover, where one judge in a district or even in a State permits telecasting, the requirement that the others do the same is almost mandatory. Especially is this true where the judge is selected at the ballot box.
34
4. Finally, we cannot ignore the impact of courtroom television on the defendant. Its presence is a form of mental—if not physical—harassment, resembling a police line-up or the third degree. The inevitable close-ups of his gestures and expressions during the ordeal of his trial might well transgress his personal sensibilities, his dignity, and his ability to concentrate on the proceedings before him—sometimes the difference between life and death—dispassionately, freely and without the distraction of wide public surveillance. A defendant on trial for a specific crime is entitled to his day in court, not in a stadium, or a city or nationwide arena. The heightened public clamor resulting from radio and television coverage will inevitably result in prejudice. Trial by television is, therefore, foreign to our system. Furthermore, telecasting may also deprive an accused of effective counsel. The distractions, intrusions into confidential attorney-client relationships and the temptation offered by television to play to the public audience might often have a direct effect not only upon the lawyers, but the judge, the jury and the witnesses. See Pye, The Lessons of Dallas—Threats to Fair Trial and Free Press, National Civil Liberties Clearing House, 16th Annual Conference.
35
The television camera is a powerful weapon. Intentionally or inadvertently it can destroy an accused and his case in the eyes of the public. While our telecasters are honorable men, they too are human. The necessity for sponsorship weighs heavily in favor of the televising of only notorious cases, such as this one, and invariably focuses the lens upon the unpopular or infamous accused. Such a selection is necessary in order to obtain a sponsor willing to pay a sufficient fee to cover the costs and return a profit. We have already examined the ways in which public sentiment can affect the trial participants. To the extent that television shapes that sentiment, it can strip the accused of a fair trial.
36
The State would dispose of all these observations with the simple statement that they are for psychologists because they are purely hypothetical. But we cannot afford the luxury of saying that, because these factors are difficult of ascertainment in particular cases, they must be ignored. Nor are they 'purely hypothetical.' They are no more hypothetical than were the considerations deemed controlling in Tumey, Murchison, Rideau and Turner. They are real enough to have convinced the Judicial Conference of the United States, this Court and the Congress that television should be barred in federal trials by the Federal Rules of Criminal Procedure; in addition they have persuaded all but two of our States to prohibit television in the courtroom. They are effects that may, and in some combination almost certainly will, exist in any case in which television is injected into the trial process.
VII.
37
The facts in this case demonstrate clearly the necessity for the application of the rule announced in Rideau. The sole issue before the court for two days of pretrial hearing was the question now before us. The hearing was televised live and repeated on tape in the same evening, reaching approximately 100,000 viewers. In addition, the courtroom was a mass of wires, television cameras, microphones and photographers. The petitioner, the panel of prospective jurors, who were sworn the second day, the witnesses and the lawyers were all exposed to this untoward situation. The judge decided that the trial proceedings would be telecast. He announced no restrictions at the time. This emphasized the notorious nature of the coming trial, increased the intensity of the publicity on the petitioner and together with the subsequent televising of the trial beginning 30 days later inherently prevented a sober search for the truth. This is underscored by the fact that the selection of the jury took an entire week. As might be expected, a substantial amount of that time was devoted to ascertaining the impact of the pretrial televising on the prospective jurors. As we have noted, four of the jurors selected had seen all or part of those broadcasts. The trial, on the other hand, lasted only three days.
38
Moreover, the trial judge was himself harassed. After the initial decision to permit telecasting he apparently decided that a booth should be built at the broadcasters' expense to confine its operations; he then decided to limit the parts of the trial that might be televised live; then he decided to film the testimony of the witnesses without sound in an attempt to protect those under the rule; and finally he ordered that defense counsel and their argument not be televised, in the light of their objection. Plagued by his original error—recurring each day of the trial—his day-to-day orders made the trial more confusing to the jury, the participants and to the viewers. Indeed, it resulted in a public presentation of only the State's side of the case.
39
As Mr. Justice Holmes said in Patterson v. People of State of Colorado, ex rel. Attorney General, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907):
40
'The theory of our 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.'
41
It is said that the ever-advancing techniques of public communication and the adjustment of the public to its presence may bring about a change in the effect of telecasting upon the fairness of criminal trials. But we are not dealing here with future developments in the field of electronics. Our judgment cannot be rested on the hypothesis of tomorrow but must take the facts as they are presented today.
42
The judgment is therefore reversed.
43
Reversed.
44
Mr. Chief Justice WARREN, whom Mr. Justice DOUGLAS and Mr. Justice GOLDBERG join, concurring.
45
While I join the Court's opinion and agree that the televising of criminal trials is inherently a denial of due process, I desire to express additional views on why this is so. In doing this, I wish to emphasize that our condemnation of televised criminal trials is not based on generalities or abstract fears. The record in this case presents a vivid illustration of the inherent prejudice of televised criminal trials and supports our conclusion that this is the appropriate time to make a definitive appraisal of television in the courtroom.
I.
46
Petitioner, a much-publicized financier, was indicted by a Reeves County, Texas, grand jury for obtaining property through false pretenses. The case was transferred to the City of Tyler, in Smith County, Texas, and was set for trial on September 24, 1962. Prior to that date petitioner's counsel informed the trial judge that he would make a motion on September 24 to exclude all cameras from the courtroom during the trial.
47
On September 24, a hearing was held to consider petitioner's motion to prohibit television, motion pictures, and still photography at the trial. The courtroom was filled with newspaper reporters and cameramen, television cameramen, and spectators. At least 12 cameramen with their equipment were seen by one observer, and there were 30 or more people standing in the aisles. An article appearing in the New York Times the next day stated:
48
'A television motor van, big as an intercontinental bus, was parked outside the courthouse and the second-floor courtroom was a forest of equipment. Two television cameras had been set up inside the bar and four more marked cameras were aligned just outside the gates. * * *
49
(Cables and wires snaked over the floor.'1
50
With photographers roaming at will through the courtroom, petitioner's counsel made his motion that all cameras be excluded. As he spoke, a cameraman wandered behind the judge's bench and snapped his picture. Counsel argued that the presence of cameras would make it difficult for him to consult with his client, make his client ill at ease, and make it impossible to obtain a fair trial since the cameras would distract the jury, witnesses and lawyers. He also expressed the view that televising selected cases tends to give the jury an impression that the particular trial is different from ordinary criminal trials. The court, however, ruled that the taking of pictures and televising would be allowed so long as the cameramen stood outside the railing that separates the trial participants from the spectators. The court also ruled that if a complaint was made that any camera was too noisy, the cameramen would have to stop taking pictures; that no pictures could be taken in the corridors outside the courtroom; and that those with microphones were not to pick up conversations between petitioner and his lawyers. Subsequent to the court's ruling petitioner arrived in the courtroom,2 and the defense introduced testimony concerning the atmosphere in the court on that day. At the conclusion of the day's hearing the judge reasserted his earlier ruling. He then ordered a roll call of the prosecution witnesses, at least some of whom had been in the courtroom during the proceedings.
51
The entire hearing on September 24 was televised live by station KLTV of Tyler, Texas, and station WFAA—TV of Dallas, Texas. Commercials were inserted when there was a pause in the proceedings. On the evening of Monday, September 24, both stations ran an edited tape of the day's proceedings and interrupted the tape to play the commercials ordinarily seen in the particular time slot. In addition to the live television coverage there was also a live radio pickup of the proceedings by at least one station.
52
The proceedings continued on September 25. There was again a significant number of cameramen taking motion pictures, still pictures and television pictures. The judge once more ordered cameramen to stay on the other side of the railing and stated that this order was to be observed even during court recesses. The panel from which the petit jury was to be selected was then sworn in the presence of the cameramen. The panel was excused to permit counsel to renew his motion to prohibit photography in the courtroom. The court denied the motion, but granted a continuance of trial until October 22 and dismissed the jury panel. At the suggestion of petitioner's counsel the trial judge warned the prosecution witnesses who were present not to discuss the case during the continuance. The proceedings were televised live and portions of the television tape were shown on the regularly scheduled evening news programs. Live radio transmission apparently occurred as on the day before.
53
On October 1, 1962, the trial judge is sued an order explaining what coverage he would permit during the trial. The judge delivered the order in his chambers for the benefit of television cameramen so that they could film him. The judge ruled that although he would permit television cameras to be present during the trial, they would not be permitted to present live coverage of the interrogation of prospective jurors or the testimony of witnesses. He ruled that each of the three major television networks, NBC, CBS, ABC, and the local television station KLTV could install one camera not equipped to pick up sound and the film would be available to other television stations on a pooled basis. In addition, he ruled that with respect to news photographers only cameramen for the local press, Associated Press, and United Press would be permitted in the courtroom. Photographs taken were also to be made available to others on a pooled basis. The judge did not explain how he decided which television cameramen and which still photographers were to be permitted in the courtroom and which were to be excluded.
54
For the proceedings beginning on October 22, station KLTV, at its own expense, and with the permission of the court, had constructed a booth in the rear of the courtroom painted the same or near the same color as the courtroom. An opening running lengthwise across the booth permitted the four television cameras to photograph the proceedings. The courtroom was small and the cameras were clearly visible to all in the courtroom.3 The cameras were equipped with 'electronic sound on camera' which permitted them to take both film and sound. Upon entering the courtroom the judge told all those with television cameras to go back to the booth; asked the press photographers not to move around any more than necessary; ordered that no flashbulbs or floodlights be used; and again told cameramen that they could not go inside the railing. Defense counsel renewed his motion to ban all 'sound equipment * * * still cameras, movie cameras and television; and all radio facilities' from the courtroom. Witnesses were again called on this issue, but at the conclusion of the hearing the trial judge reaffirmed his prior ruling to permit cameramen in the courtroom. In response to petitioner's argument that his rights under the Constitution of the United States were being violated, the judge remarked that the 'case (was) not being tried under the Federal Constitution.'
55
None of the proceedings on October 22 was televised live. Television cameras, however, recorded the day's entire proceedings with sound for later showings. Apparently none of the October 22 proceedings was carried live on radio, although the proceedings were recorded on tape. The still photographers admitted by the court were free to take photographs from outside the railing.
56
On October 23 the selection of the jury began. Overnight an additional strip had been placed across the television booth so that the opening for the television cameras was reduced, but the cameras and their operators were still quite visible.4 A panel of 86 prospective jurors was ready for the voir dire. The judge excused the jurors from the courtroom and made still another ruling on news coverage at the trial. He ordered the television recording to proceed from that point on without an audio pickup, and, in addition, forbade radio tapes of any further proceedings until all the evidence had been introduced. During the course of the trial the television cameras recorded without sound whatever matters appeared interesting to them for use on later newscasts; radio broadcasts in the form of spot reports were made from a room next to the courtroom. There was no live television or radio coverage until November 7 when the trial judge permitted live coverage of the prosecution's arguments to the jury, the return of the jury's verdict and its acceptance by the court. Since the defense objected to being photographed during the summation, the judge prohibited television cameramen or still photographers from taking any pictures of the defense during its argument. But the show went on, and while the defense was speaking the cameras were directed at the judge and the arguments were monitored by audio equipment and relayed to the television audience by an announcer. On November 7 the judge, for the first time, directed news photographers desiring to take pictures to take them only from the back of the room. Up until this time the trial judge's orders merely limited news photographers to the spectator section.
II.
57
The decision below affirming petitioner's conviction runs counter to the evolution of Anglo-American criminal procedure over a period of centuries. During that time the criminal trial has developed from a ritual practically devoid of rational justification5 to a fact-finding process, the acknowledged purpose of which is to provide a fair and reliable determination of guilt.6
58
An element of rationality was introduced in the guilt-determining process in England over 600 years ago when a rudimentary trial by jury became 'the principal institution for criminal cases.'7 Initially members of the jury were expected to make their own examinations of the cases they were to try and come to court already familiar with the facts,8 which made it impossible to limit the jury's determination to legally relevant evidence. Gradually, however, the jury was transformed from a panel of witnesses to a panel of triers passing on evidence given by others in the courtroom.9 The next step was to insure the independence of the jury, and this was accomplished by the decision in the case of Edward Bushell, 6 How.St.Tr. 999 (1670), which put an end to the practice of fining or otherwise punishing jury members who failed to reach the decision directed by the court. As the purpose of trial as a vehicle for discovering the truth became clearer, it was recognized that the defendant should have the right to call witnesses and to place them under oath,10 to be informed of the charges against him before the trial,11 and to have counsel assist him with his defense.12 All these protections, and others which could be cited, were part of a development by which 'the administration of criminal justice was set upon a firm and dignified basis.'13
59
When the colonists undertook the responsibility of governing themselves, one of their prime concerns was the establishment of trial procedures which would be consistent with the purpose of trial. The Continental Congress passed measures designed to safeguard the right to a fair trial,14 and the various States adopted constitutional provisions directed to the same end.15 Eventually the Sixth Amendment incorporated into the Constitution certain provisions dealing with the conduct of trials:
60
'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.'
61
Significantly, in the Sixth Amendment the words 'speedy and public' qualify the term trial and the rest of the Amendment defines specific protections the accused is to have at his trial. Thus, the Sixth Amendment, by its own terms, not only requires that the accused have certain specific rights but also that he enjoy them at a trial—a word with a meaning of its own, see Bridges v. State of California, 314 U.S. 252, 271, 62 S.Ct. 190, 197, 86 L.Ed. 192.
62
The Fourteenth Amendment which places limitations on the States' administration of their criminal laws also gives content to the term trial. Whether the Sixth Amendment as a whole applies to the States through the Fourteenth,16 or the Fourteenth Amendment embraces only those portions of the Sixth Amendment that are 'fundamental,'17 or the Fourteenth Amendment incorporates a standard of 'ordered liberty' apart from the specific guarantees of the Bill of Rights,18 it has been recognized that state prosecutions must, at the least, comport with 'the fundamental conception' of a fair trial.19
63
It has been held on one or another of these theories that the fundamental conception of a fair trial includes many of the specific provisions of the Sixth Amendment, such as the right to have the proceedings open to the public, In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682, the right to notice of specific charges, Cole v. State of Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644; the right to confrontation, Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934, and the right to counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792. But it also has been agreed that neither the Sixth nor the Fourteenth Amendment is to be read formalistically, for the clear intent of the amendments is that these specific rights be enjoyed at a constitutional trial. In the words of Justice Holmes, even though 'every form (be) preserved,' the forms may amount to no 'more than an empty shell' when considered in the context or setting in which they were actually applied.20
64
In cases arising from state prosecutions this Court has acted to prevent the right to a constitutional trial from being reduced to a formality by the intrusion of factors into the trial process that tend to subvert its purpose. The Court recognized in Pennekamp v. State of Florida, 328 U.S. 331, 334, 66 S.Ct. 1029, 1031, 90 L.Ed. 1295, that the 'orderly operation of courts' is 'the primary and dominant requirement in the administration of justice.' And, in Moore v. Dempsey, 261 U.S. 86, 90—91, 43 S.Ct. 265, 266—267, 67 L.Ed. 543, it was held that the atmosphere in and around the courtroom might be so hostile as to interfere with the trial process, even though an examination of the record disclosed that all the forms of trial conformed to the requirements of law: the defendant had counsel, the jury members stated they were impartial, the jury was correctly charged, and the evidence was legally sufficient to convict. Moreover, in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, a conviction was reversed where extensive pretrial publicity rendered a fair trial unlikely despite the observance of the formal requisites of a legal trial. We commented in that case:
65
'No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one's fellows is often its father.' Id., at 728, 81 S.Ct., at 1645.
66
To recognize that disorder can convert a trial into a ritual without meaning is not to pay homage to order as an end in itself. Rather, it recognizes that the courtroom in Anglo-American jurisprudence is more than a location with seats for a judge, jury, witnesses, defendant, prosecutor, defense counsel and public observers; the setting that the courtroom provides is itself an important element in the constitutional conception of trial, contributing a dignity essential to 'the integrity of the trial' process. Craig v. Harney, 331 U.S. 367, 377, 67 S.Ct. 1249, 1255. As Mr. Justice Black said, in another context: 'The very purpose of a court system is to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures.'21 In light of this fundamental conception of what the term trial means, this Court has recognized that often, despite widespread, hostile publicity about a case, it is possible to conduct a trial meeting constitutional standards. Significantly, in each of these cases, the basic premise behind the Court's conclusion has been the notion that judicial proceedings can be conducted with dignity and integrity so as to shield the trial process itself from these irrelevant external factors, rather than to aggravate them as here. Thus, in reversing contempt convictions for out-of-court statements, this Court referred to 'the power of courts to protect themselves from disturbances and disorder in the court room,' Bridges v. State of California, 314 U.S. 252, 266, 62 S.Ct. 190, 195. (emphasis added); 'the necessity for fair adjudication, free from interruption of its processes,' Pennekamp v. State of Florida, 328 U.S. 331, 336, 66 S.Ct. 1029, 1032, 'the integrity of the trial,' Craig v. Harney, 331 U.S. 367, 377, 67 S.Ct. 1249, 1255. And, in upholding a conviction against a claim of unfavorable publicity, this Court commented 'that petitioner's trial was conducted in a calm judicial manner,' United States ex rel. Darcy v. Handy, 351 U.S. 454, 463, 76 S.Ct. 965, 970, 100 L.Ed. 1331.
67
Similarly, when state procedures have been found to thwart the purpose of trial this Court has declared those procedures to be unconstitutional. In Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, the Court considered a state procedure under which judges were paid for presiding over a case only if the defendant was found guilty and costs assessed against him. An argument was made that the practice should not be condemned broadly, since some judges undoubtedly would not let their judgment be affected by such an arrangement. However, the Court found the procedure so inconsistent with the conception of what a trial should be and so likely to produce prejudice that it declared the practice unconstitutional even though no specific prejudice was shown.
68
In Lyons v. State of Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481, this Court stated that if an involuntary confession is introduced into evidence at a state trial the conviction must be reversed, even though there is other evidence in the record to justify a verdict of guilty. We explained the rationale behind this judgment in Payne v. State of Arkansas, 356 U.S. 560, 568, 78 S.Ct. 844, 850, 2 L.Ed.2d 975:
69
'(W)here * * * a coerced confession constitutes a part of the evidence before the jury and a general verdict is returned, no one can say what credit and weight the jury gave to the confession.'
70
Similar reasoning led to the decision last Term in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774. We held there that when the voluntariness of a confession is at issue there must be a procedure adopted which provides 'a reliable and clearcut determination of * * * voluntariness.' Id., at 391, 84 S.Ct., at 1788. We found insufficient a procedure whereby the jury heard the confession but was instructed to disregard it if the jury found the confession involuntary:
71
'(T)he New York procedure poses substantial threats to a defendant's constitutional rights to have an involuntary confession entirely disregarded and have the coercion issue fairly and reliably determined. These hazards we cannot ignore.' Id., at 389, 84 S.Ct., at 1787.
72
Earlier this Term, in Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424, we considered a case in which deputy sheriffs, who were the prosecution's principal witnesses, were in charge of a sequestered jury during the trial. The Supreme Court of Louisiana criticized the practice but said that in the absence of a showing of prejudice there was no ground for reversal. We reversed because the 'extreme prejudice inherent' in the practice required its condemnation on constitutional grounds.
73
Finally, the Court has on numerous other occasions reversed convictions, where the formalities of trial were observed, because of practices that negate the fundamental conception of trial.22
74
This line of cases does not indicate a disregard for the position of the States in our federal system. Rather, it stands for the proposition that the criminal trial under our Constitution has a clearly defined purpose, to provide a fair and reliable determination of guilt, and no procedure or occurrence which seriously threatens to divert it from that purpose can be tolerated.
III.
75
For the Constitution to have vitality, this Court must be able to apply its principles to situations that may not have been foreseen at the time those principles were adopted. As was said in Weems v. United States, 217 U.S. 349, 373, 30 S.Ct. 544, 551, 54 L.Ed. 793, and reaffirmed in Brown v. Board of Education, 347 U.S. 483, 492—493, 74 S.Ct. 686, 690—691, 98 L.Ed. 873:
76
'Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth. * * * In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality.'
77
I believe that it violates the Sixth Amendment for federal courts and the Fourteenth Amendment for state courts to allow criminal trials to be televised to the public at large. I base this conclusion on three grounds: (1) that the televising of trials diverts the trial from its proper purpose in that it has an inevitable impact on all the trial participants; (2) that it gives the public the wrong impression about the purpose of trials, thereby detracting from the dignity of court proceedings and lessening the reliability of trials; and (3) that it singles out certain defendants and subjects them to trials under prejudicial conditions not experienced by others.
78
I have attempted to show that our common-law heritage, our Constitution, and our experience in applying that Constitution have committed us irrevocably to the position that the criminal trial has one well-defined purpose—to provide a fair and reliable determination of guilt. In Tumey v. State of Ohio, supra, 273 U.S., at 532, 47 S.Ct., at 444, this Court condemned the procedure there employed for compensating judges because it offered a 'possible temptation' to judges 'not to hold the balance nice, clear, and true between the state and the accused.' How much more harmful is a procedure which not only offers the temptation to judges to use the bench as a vehicle for their own ends, but offers the same temptation to every participant in the trial, be he defense counsel, prosecutor, witness or juror! It is not necessary to speak in the abstract on this point. In the present case, on October 1, the trial judge invited the television cameras into his chambers so they could take films of him reading one of his pretrial orders. On this occasion, at least, the trial judge clearly took the initiative in placing himself before the television audience and in giving his order, and himself, the maximum possible publicity. Moreover, on October 22, when trial counsel renewed his motion to exclude television from the courtroom on the ground that it violated petitioner's rights under the Federal Constitution, the trial judge made the following speech:
79
'This case is not being tried under the Federal Constitution. This Defendant has been brought into this Court under the state laws, under the State Constitution.
80
'I took an oath to uphold this Constitution; not the Federal Constitution but the State Constitution; and I am going to do my best to do that as long as I preside on this Court, and if it is distasteful in following my oath and upholding the constitution, it will just have to be distasteful.'
81
One is entitled to wonder if such a statement would be made in a court of justice by any state trial judge except as an appeal calculated to gain the favor of his viewing audience. I find it difficult to believe that this trial judge, with over 20 years' experience on the bench, was unfamiliar with the fundamental duty imposed on him by Article VI of the Constitution of the United States:
82
'This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.'
83
This is not to say that all participants in the trial would distort it by deliberately playing to the television audience, but some undoubtedly would. The even more serious danger is that neither the judge, prosecutor, defense counsel, jurors or witnesses would be able to go through trial without considering the effect of their conduct on the viewing public. It is admitted in dissent that 'if the scene at the September hearing had been repeated in the courtroom during this jury trial, it is difficult to conceive how a fair trial in the constitutional sense could have been afforded the defendant.' Post, p. 612. But it is contended that what went on at the September hearing is irrelevant to the issue before us. With this I cannot agree. We granted certiorari to consider whether petitioner was denied due process when he was required to submit to a televised trial. In this, as in other cases involving rights under the Due Process Clause, we have an obligation to make an independent examination of the record, e.g., Watts v. State of Indiana, 338 U.S. 49, 51, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801; Norris v. State of Alabama, 294 U.S. 587, 590, 55 S.Ct. 579, 580, 79 L.Ed. 1074; and the limited grant of certiorari does not prohibit us from considering all the facts in this record relevant to the question before us. The parties to this case, and those who filed briefs as amici curiae, recognize this, since they treat the televising of the September proceedings as a factor relevant to our consideration. Our decisions in White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, and Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, clearly hold that an accused is entitled to procedural protections at pretrial hearings as well as at actual trial and his conviction will be reversed if he is not accorded these protections. In addition, in Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, we held that a pretrial hearing can have a profound effect on the trial itself and effectively prevent an accused from having a fair trial. Petitioner clearly did not have a fair determination of his motion to exclude cameras from the courtroom. The very presence of the cameras at the September hearing tended to impress upon the trial judge the power of the communications media and the criticism to which he would have been subjected if he had ruled that the presence of the cameras was inconsistent with petitioner's right to a fair trial. The prejudice to petitioner did not end here. Most of the trial participants were present at the September hearing—the judge, defense counsel, prosecutor, prosecution witnesses and defendant himself—and they saw for themselves the desecration of the courtroom. After undergoing this experience it is unrealistic to suppose that they would come to the October trial unaware that court procedures were being sacrificed in this case for the convenience of television. The manner in which the October proceedings were conducted only intensified this awareness. It was impossible for any of the trial participants ever to be unaware of the presence of television cameras in court for the actual trial.23 The snouts of the four television cameras protruded through the opening in the booth, and the cameras and their operators were not only readily visible but were impossible to ignore by all who were surveying the activities in this small courtroom. No one could forget that he was constantly in the focus of the 'all-seeing eye.' Although the law of Texas purportedly permits witnesses to object to being televised, it is ludicrous to place this burden on them. They would naturally accept the conditions of the courtroom as the judge establishes them, and feel that it would be as presumptuous for them to object to the court's permitting television as to object to the court reporter's recording their testimony. Yet, it is argued that no witnesses objected to being televised. This is indeed a slender reed to rely on, particularly in view of the trial judge's failure, in the course of his self-exculpating statements justifying his decision to allow television, to advise the witnesses or the jurors that they had the right to object to being televised. Defense counsel, however, stated forcefully that he could not concentrate on the case because of the distraction caused by the cameras. And the trial judge's attention was distracted from the trial since he was compelled to make seven extensive rulings concerning television coverage during the October proceedings alone, when he should, instead, have been concentrating on the trial itself.
84
It is common knowledge that 'television * * * can * * * work profound changes in the behavior of the people it focuses on.'24 The present record provides ample support for scholars who have claimed that awareness that a trial is being televised to a vast, but unseen audience, is bound to increase nervousness and tension,25 cause an increased concern about appearances,26 and bring to the surface latent opportunism that the traditional dignity of the courtroom would discourage. Whether they do so consciously or subconsciously, all trial participants act differently in the presence of television cameras. And, even if all participants make a conscientious and studied effort to be unaffected by the presence of television, this effort in itself prevents them from giving their full attention to their proper functions at trial. Thus, the evil of televised trials, as demonstrated by this case, lies not in the noise and appearance of the cameras, but in the trial participants' awareness that they are being televised. To the extent that television has such an inevitable impact it undercuts the reliability of the trial process.
85
In the early days of this country's development, the entertainment a trial might provide often tended to obfuscate its proper role.
86
'The people thought holding court one of the greatest performances in the range of their experience. * * * The country folks would crowd in for ten miles to hear these 'great lawyers' plead; and it was a secondary matter with the client whether he won or lost his case, so the 'pleading' was loud and long.'27
87
'In early frontier America, when no motion pictures, no television, and no radio provided entertainment, trial day in the county was like fair day, and from near and far citizens young and old converged on the county seat. The criminal trial was the theater and spectaculum of old rural America. Applause and cat calls were not infrequent. All too easily lawyers and judges became part-time actors at the bar. * * *'28
88
I had thought that these days of frontier justice were long behind us, but the courts below would return the theater to the courtroom.
89
The televising of trials would cause the public to equate the trial process with the forms of entertainment regularly seen on television and with the commercial objectives of the television industry. In the present case, tapes of the September 24 hearing were run in place of the 'Tonight Show' by one station and in place of the late night movie by another. Commercials for soft drinks, soups, eyedrops and seatcovers were inserted when there was a pause in the proceedings. In addition, if trials were televised there would be a natural tendency on the part of broadcasters to develop the personalities of the trial participants, so as to give the proceedings more of an element of drama. This tendency was noticeable in the present case. Television commentators gave the viewing audience a homey, flattering sketch about the trial judge, obviously to add an extra element of viewer appeal to the trial:
90
'Tomorrow morning at 9:55 the WFAA T.V. cameras will be in Tyler to telecast live (the trial judge's) decision whether or not he will permit live coverage of the Billie Sol Estes trial. If so, this will be the first such famous national criminal proceeding to be televised in its entirety live. (The trial judge) was appointed to the bench here in Tyler in 1942 by (the Governor). The judge has served every two years since then. This very beautiful Smith County Courthouse was built and dedicated in 1954, but before that (the trial judge) had made a reputation for himself that reached not only throughout Texas, but throughout the United States as well. It is said that (the trial judge), who is now 53 years old, has tried more cases than any other judge during his time in office.'
91
The television industry might also decide that the bareboned trial itself does not contain sufficient drama to sustain an audience. It might provide expert commentary on the proceedings and hire persons with legal backgrounds to anticipate possible trial strategy, as the football expert anticipates plays for his audience. The trial judge himself stated at the September hearing that if he wanted to see a ball game he would turn on his television set, so why not the same for a trial.
92
Moreover, should television become an accepted part of the courtroom, greater sacrifices would be made for the benefit of broadcasters. In the present case construction of a television booth in the courtroom made it necessary to alter the physical layout of the courtroom and to move from their accustomed position two benches reserved for spectators.29 If this can be done in order better to accommodate the television industry, I see no reason why another court might not move a trial to a theater, if such a move would provide improved television coverage. Our memories are short indeed if we have already forgotten the wave of horror that swept over this country when Premier Fidel Castro conducted his prosecutions before 18,000 people in Havana Stadium.30 But in the decision below, which completely ignores the importance of the courtroom in the trial process, we have the beginnings of a similar approach toward criminal 'justice.' This is not an abstract fear I am expressing because this very situation confronted the Nebraska Supreme Court in Roberts v. State, 100 Neb. 199, 203, 158 , n.W. 930, 931—932 (1916):
93
'The court removed the trial from the court-room to the theater, and stated as a reason therefor: 'By reason of the insufficiency of the courtroom to seat and accommodate the people applying for admission * * * it is by the court ordered that the further trial of this cause be had at the Keith Theater, and thereupon the court was adjourned to Keith Theater, where trial proceeded.' The stage was occupied by court, counsel, jury, witnesses, and officers connected with the trial. The theater proper was crowded with curious spectators. Before the trial was completed it was returned to the court-room and concluded there. At the adjournment of court on one occasion the bailiff announced from the stage: 'The regular show will be to-morrow; matine e in the afternoon and another performance at 8:30. Court is now adjourned until 7:30."
94
There would be a real threat to the integrity of the trial process if the television industry and trial judges were allowed to become partners in the staging of criminal proceedings. The trial judge in the case before us had several 'conferences (with) representatives of the news media.' Post, p. 606. He then entered into a joint enterprise with a television station for the construction of a booth in his courtroom. The next logical step in this partnership might be to schedule the trial for a time that would permit the maximum number of viewers to watch and to schedule recesses to coincide with the need for station breaks. Should the television industry become an integral part of our system of criminal justice, it would not be unnatural for the public to attribute the shortcomings of the industry to the trial process itself. The public is aware of the television industry's consuming interest in ratings, and it is also aware of the steps that have been taken in the past to maintain viewer interest in television programs. Memories still recall vividly the scandal caused by the disclosure that quiz programs had been corrupted in order to heighten their dramatic appeal. Can we be sure that similar efforts would not be made to heighten the dramatic appeal of televised trials? Can we be sure that the public would not inherently distrust our system of justice because of its intimate association with a commercial enterprise?
95
Broadcasting in the courtroom would give the television industry an awesome power to condition the public mind either for or against an accused. By showing only those parts of its films or tapes which depict the defendant or his witnesses in an awkward or unattractive position, television directors could give the community, state or country a false and unfavorable impression of the man on trial. Moreover, if the case should end in a mistrial, the showing of selected portions of the trial, or even of the whole trial, would make it almost impossible to select an impartial jury for a second trial. Cf. Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663. To permit this powerful medium to use the trial process itself to influence the opinions of vast numbers of people, before a verdict of guilt or innocence has been rendered, would be entirely foreign to our system of justice.
96
The sense of fairness, dignity and integrity that all associate with the court-room would become lost with its commercialization. Thus, the televising of trials would not only have an effect on those participating in the trials that are being televised, but also on those who observe the trials and later become trial participants.
97
It is argued that television not only entertains but also educates the public. But the function of a trial is not to provide an educational experience; and there is a serious danger that any attempt to use a trial as an educational tool will both divert it from its proper purpose and lead to suspicions concerning the intergrity of the trial process. The Soviet Union's trial of Francis Gary Powers provides an example in point. The integrity of the trial was suspect because it was concerned not only with determining the guilt of the individual on trial but also with providing an object lesson to the public. This divided effort undercut confidence in the guilt-determining aspect of the procedure and by so doing rendered the educational aspect self-defeating.
98
'Was it prejudicial to (Powers) that the trial took place in a special hall with over 2,000 spectators, that it was televised, that prominent representatives of many organizations in various countries were invited to attend, that simultaneous oral translations of the proceedings * * * were provided, and that detailed * * * reports of the case in various languages were distributed to the press before, during and after the trial?'
99
'* * * (T)he Soviet legal system * * * consciously and explicitly uses the trial, and indeed the very safeguards of justice themselves, as instruments of the social and political objectives of the state. * * *
100
'* * * A Soviet trial is supposed to be correct, impartial, just, reasonable, and at the same time it is supposed to serve as an object-lesson to society, a means of teaching the participants, the spectators and the public generally to be loyal, obedient, disciplined fighters for Communist ideals. * * *
101
'* * * (T)he tension between the demands of justice and the demands of politics can never be entirely eliminated. The fate of the accused is bound to be influenced in one way or another when the trial is lifted above its individual facts and deliberately made an object-lesson to the public.'
102
'* * * (T)he deliberate use of a trial as a means of political education threatens the integrity of the judicial process.'31
103
Finally, if the televising of criminal proceedings were approved, trials would be selected for television coverage for reasons having nothing to do with the purpose of trial. A trial might be televised because a particular judge has gained the fancy of the public by his unorthodox approach; or because the district attorney has decided to run for another office and it is believed his appearance would attract a large audience; or simply because a particular courtroom has a layout that best accommodates television coverage.32 For the most part, however, the most important factor that would draw television to the courtroom would be the nature of the case. The alleged perpetrator of the sensational murder, the fallen idol, or some other person who, like petitioner, has attracted the public interest would find his trial turned into a vehicle for television. Yet, these are the very persons who encounter the greatest difficulty in securing an impartial trial, even without the presence of television. This Court would no longer be able to point to the dignity and calmness of the courtroom as a protection from outside influences. For the television camera penetrates this protection and brings into the courtroom tangible evidence of the widespread interest in a case an interest which has often been fanned by exhaustive reports in the newspapers, television and radio for weeks before trial. The present case presents a clear example of this danger. In the words of petitioner's counsel:
104
'The Saturday Evening Post, The Readers Digest, Time, Life all had feature stories upon (petitioner's) story giving in detail his life history and the details of * * * alleged fraudulent transactions. * * *
105
'The metropolitan papers throughout the country featured the story daily. Each day for weeks the broadcasts carried some features of the story.'33
106
After living in the glare of this publicity for weeks, petitioner came to court for a legal adjudication of the charges against him. As he approached the courthouse he was confronted by an army of photographers, reporters and television commentators shoving microphones in his face.34 When he finally made his way into the courthouse it was reasonable for him to expect that he could have a respite from this merciless badgering and have his case adjudicated in a calm atmosphere. Instead, the carnival atmosphere of the September hearing served only to increase the publicity surrounding petitioner and to condition further the public's mind against him. Then, upon his entrance into the courtroom for his actual trial he was confronted with the sight of the television camera zeroed in on him and the ever-present still photographers snapping pictures of interest. As he opened a newspaper waiting for the proceedings to begin, the close-up lens of a television camera zoomed over his shoulder in an effort to find out what he was reading. In no sense did the dignity and integrity of the trial process shield this petitioner from the prejudicial publicity to which he had been exposed, because that publicity marched right through the courtroom door and made itself at home in heretofore unfamiliar surroundings. We stated in Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799, '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 principle was not applied by the courts below.
107
I believe petitioner in this case has shown that he was actually prejudiced by the conduct of these proceedings, but I cannot agree with those who say that a televised trial deprives a defendant of a fair trial only if 'actual prejudice' can be shown. The prejudice of television may be so subtle that it escapes the ordinary methods of proof,35 but it would gradually erode our fundamental conception of trial.36 A defendant may be unable to prove that he was actually prejudiced by a televised trial, just as he may be unable to prove that the introduction of a coerced confession at his trial influenced the jury to convict him when there was substantial evidence to support his conviction aside from the confession, Payne v. State of Arkansas, supra; that the jury refrained from making a clearcut determination on the voluntariness question, Jackson v. Denno, supra; that a particular judge was swayed by a direct financial interest in his conviction, Tumey v. State of Ohio, supra; or that the jury gave additional weight to the testimony of certain prosecution witnesses because of the jury's repeated contacts with those witnesses during the trial, Turner v. State of Louisiana, supra. How is the defendant to prove that the prosecutor acted differently than he ordinarily would have, that defense counsel was more concerned with impressing prospective clients than with the interests of the defendant, that a juror was so concerned with how he appeared on television that his mind continually wandered from the proceedings, that an important defense witness made a bad impression on the jury because he was 'playing' to the television audience or that the judge was a little more lenient or a little more strict than he usually might be? And then, how is petitioner to show that this combination of changed attitudes diverted the trial sufficiently from its purpose to deprive him of a fair trial? It is no answer to say that an appellate court can review for itself tapes or films of the proceedings. In the first place, it is not clear that the court would be able to obtain unedited tapes or films to review. Even with the cooperation of counsel on both sides, this Court was unable to obtain films of this trial which were in any sense complete. In addition time limitations might restrict the television companies to taking pictures only of those portions of the trial that are most newsworthy and most likely to attract the attention of the viewing audience. More importantly, the tapes or films, even if unedited, could give a wrong impression of the proceedings. The camera which takes pictures cannot take a picture of itself. In addition, the camera cannot possibly cover the actions of all trial participants during the trial. While the camera is focused on the judge who is apparently acting properly, a juror may be glancing up to see where the camera is pointing and counsel may be looking around to see whether he can confer with his client without the close-up lens of the camera focusing on them. Needless to say, the camera cannot penetrate the minds of the trial participants and show their awareness that they may at that moment be the subject of the camera's focus. The most the camera can show is that a formally correct trial took place, but our Constitution requires more than form.
108
I recognize that the television industry has shown in the past that it can be an enlightening and informing institution, but like other institutions it must respect the rights of others and cannot demand that we alter fundamental constitutional conceptions for its benefit. We must take notice of the inherent unfairness of television in the courtroom and rule that its presence is inconsistent with the 'fundamental conception' of what a trial should be. My conviction that this is the proper holding in this case is buttressed by the almost unanimous condemnation of televised court proceedings by the judiciary in this country and by the strong opposition to the practice by the organized bar in this country. Canon 35 of the American Bar Association's Canons of Judicial Ethics prohibits the televising of court trials.37 With only two, or possibly three exceptions,38 The highest court of each State which has considered the question has declared that televised criminal trials are inconsistent with the Anglo-American conception of 'trial.'39 Similarly, Rule 53 of the Federal Rules of Criminal Procedure prohibits the 'broadcasting' of trials,40 and the Judicial Conference of the United States has unanimously condemned televised trials.41 This condemnation rests on more than notions of policy; it arises from an understanding of the constitutional conception of the term 'trial. Such a general consensus is certainly relevant to this Court's determination of the question. See Mapp v. Ohio, 367 U.S. 643, 651, 81 S.Ct. 1684, 1689, 6 L.Ed.2d 1081.
IV.
109
Nothing in this opinion is inconsistent with the constitutional guarantees of a public trial and the freedoms of speech and the press.
110
This Court explained in In re Oliver, 333 U.S. 257, 266, 270, 68 S.Ct. 499, 506, 92 L.Ed.2d 682, that the public trial provision of the Sixth Amendment is a 'guarantee to an accused' designed to 'safeguard against any attempt to employ our courts as instruments of persecution.' Clearly the openness of the proceedings provides other benefits as well: it arguably improves the quality of testimony, it may induce unknown witnesses to come forward with relevant testimony, it may move all trial participants to perform their duties conscientiously, and it gives the public the opportunity to observe the courts in the performance of their duties and to determine whether they are performing adequately.42 But the guarantee of a public trial confers no special benefit on the press, the radio industry or the television industry. A public trial is a necessary component of an accused's right to a fair trial and the concept of public trial cannot be used to defend conditions which prevent the trial process from providing a fair and reliable determination of guilt.
111
To satisfy the constitutional requirement that trials be public it is not necessary to provide facilities large enough for all who might like to attend a particular trial, since to do so would interfere with the integrity of the trial process and make the publicity of trial proceedings an end in itself. Nor does the requirement that trials be public mean that observers are free to act as they please in the courtroom, for persons who attend trials cannot act in such a way as to interfere with the trial process, see Moore v. Dempsey, supra. When representatives of the communications media attend trials they have no greater rights than other members of the public. Just as an ordinary citizen might be prohibited from using field glasses or a motion picture camera in the courthouse because by so doing he would interfere with the conduct of the trial, representatives of the press and broadcasting industries are subject to similar limitations when they attend court. Since the televising of criminal trials diverts the trial process from its proper end, it must be prohibited. This prohibition does not conflict with the constitutional guarantee of a public trial, because a trial is public, in the constitutional sense, when a courtroom has facilities for a reasonable number of the public to observe the proceedings, which facilities are not so small as to render the openness negligible and not so large as to distract the trial participants from their proper function, when the public is free to use those facilities, and when all those who attend the trial are free to report what they observed at the proceedings.
112
Nor does the exclusion of television cameras from the courtroom in any way impinge upon the freedoms of speech and the press. Court proceedings, as well as other public matters, are proper subjects for press coverage.
113
'A trial is a public event. What transpires in the court room is public property. If a transcript of the court proceedings had been published, we suppose none would claim that the judge could punish the publisher for contempt. And we can see no difference though the conduct of the attorneys of the jury, or even of the judge himself, may have reflected on the court. Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.'43
114
So long as the television industry, like the other communications media, is free to send representatives to trials and to report on those trials to its viewers, there is no abridgment of the freedom of press. The right of the communications media to comment on court proceedings does not bring with it the right to inject themselves into the fabric of the trial process to alter the purpose of that process.
115
In summary, television is one of the great inventions of all time and can perform a large and useful role in society. But the television camera, like other technological innovations, is not entitled to pervade the lives of everyone in disregard of constitutionally protected rights.44 The television industry, like other institutions, has a proper area of activities and limitations beyond which it cannot go with its cameras. That area does not extend into an American courtroom. On entering that hallowed sanctuary, where the lives, liberty and property of people are in jeopardy, television representatives have only the rights of the general public, namely, to be present, to observe the proceedings, and thereafter, if they choose, to report them.
116
(For opinion of HARLAN, J., concurring, see post, p. 1662.)
117
APPENDIX TO OPINION OF MR. CHIEF JUSTICE WARREN. TAI TABLE THT , TAI TABLE THT TAI TABLE THT TAI TABLE T HT TAI TABLE THT TAI TABLE THT TAI TABLE Mr. Justice HARLAN, concurring.
118
I concur in the opinion of the Court, subject, however, to the reservations and only to the extent indicated in this opinion.
119
The constitutional issue presented by this case is far-reaching in its implications for the administration of justice in this country. The precise question is whether the Fourteenth Amendment prohibits a State, over the objection of a defendant, from employing television in the courtroom to televise contemporaneously, or subsequently by means of videotape, the courtroom proceedings of a criminal trial of widespread public interest. The issue is no narrower than this because petitioner has not asserted any isolatable prejudice resulting from the presence of television apparatus within the courtroom or from the contemporaneous or subsequent broadcasting of the trial proceedings. On the other hand, the issue is no broader, for we are concerned here only with a criminal trial of great notoriety, and not with criminal proceedings of a more or less routine nature.
120
The question is fraught with unusual difficulties. Permitting television in the courtroom undeniably has mischievous potentialities for intruding upon the detached atmosphere which should always surround the judicial process. Forbidding this innovation, however, would doubtless impinge upon one of the valued attributes of our federalism by preventing the States from pursuing a novel course of procedural experimentation. My conclusion is that there is no constitutional requirement that television be allowed in the courtroom, and, at least as to a notorious criminal trial such as this one, the considerations against allowing television in the courtroom so far outweigh the countervailing factors advanced in its support as to require a holding that what was done in this case infringed the fundamental right to a fair trial assured by the Due Process Clause of the Fourteenth Amendment.
121
Some preliminary observations are in order: All would agree, I am sure, that at its worst, television is capable of distorting the trial process so as to deprive it of fundamental fairness. Cables, kleig lights, interviews with the principal participants, commentary on their performances, 'commercials' at frequent intervals, special wearing apparel and makeup for the trial participants—certainly such things would not conduce to the sound administration of justice by any acceptable standard. But that is not the case before us. We must judge television as we find it in this trial—relatively unobtrusive, with the cameras contained in a booth at the back of the courtroom.
I.
122
No constitutional provision guarantees a right to televise trials. The 'public trial' guarantee of the Sixth Amendment, which reflects a concept fundamental to the administration of justice in this Country, In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682, certainly does not require that television be admitted to the courtroom. See United Press Assns. v. Valente, 308 N.Y. 71, 123 N.E.2d 777. Essentially, the publictrial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings. In re Oliver, supra, 333 U.S. at 266—273, 68 S.Ct., at 504—507. A fair trial is the objective, and 'public trial' is an institutional safeguard for attaining it.
123
Thus the right of 'public trial' is not one belonging to the public, but one belonging to the accused, and inhering in the institutional process by which justice is administered. Obviously, the publictrial guarantee is not violated if an individual member of the public cannot gain admittance to a courtroom because there are no available seats. The guarantee will already have been met, for the 'public' will be present in the form of those persons who did gain admission. Even the actual presence of the public is not guaranteed. A public trial implies only that the court must be open to those who wish to come, sit in the available seats, conduct themselves with decorum, and observe the trial process. It does not give anyone a concomitant right to photograph, record, broadcast, or otherwise transmit the trial proceedings to those members of the public not present, although to be sure, the guarantee of public trial does not of itself prohibit such activity.
124
The free speech and press guarantees of the First and Fourteenth Amendments are also asserted as embodying a positive right to televise trials, but the argument is greatly overdrawn. Unquestionably, television has become a very effective medium for transmitting news. Many trials are newsworthy, and televising them might well provide the most accurate and comprehensive means of conveying their content to the public. Furthermore, television is capable of performing an educational function by acquainting the public with the judicial process in action. Albeit these are credible policy arguments in favor of television, they are not arguments of constitutional proportions. The rights to print and speak, over television as elsewhere, do not embody an independent right to bring the mechanical facilities of the broadcasting and printing industries into the courtroom. Once beyond the confines of the courthouse, a news-gathering agency may publicize, within wide limits, what its representatives have heard and seen in the courtroom. But the line is drawn at the courthouse door; and within, a reporter's constitutional rights are no greater than those of any other member of the public. Within the courthouse the only relevant constitutional consideration is that the accused be accorded a fair trial. If the presence of television substantially detracts from that goal, due process requires that its use be forbidden.
125
I see no force in the argument that to exclude television apparatus from the courtroom, while at the same time permitting newspaper reporters to bring in their pencils and notebooks, would discriminate in favor of the press as against the broadcasting services. The distinctions to be drawn between the accouterments of the press and the television media turn not on differences of size and shape but of function and effect. The presence of the press at trials may have a distorting effect, but it is not caused by their pencils and note books. If it were, I would not hesitate to say that such physical paraphernalia should be barred.
II.
126
The probable impact of courtroom television on the fairness of a trial may vary according to the particular kind of case involved. The impact of television on a trial exciting wide popular interest may be one thing; the impact on a run-of-the-mill case may be quite another. Furthermore, the propriety of closed circuit television for the purpose of making a court recording or for limited use in educational institutions obviously presents markedly different considerations. The Estes trial was a heavily publicized and highly sensational affair. I therefore put aside all other types of cases; in so doing, however, I wish to make it perfectly clear that I am by no means prepared to say that the constitutional issue should ultimately turn upon the nature of the particular case involved. When the issue of television in a non-notorious trial is presented it may appear that no workable distinction can be drawn based on the type of case involved, or that the possibilities for prejudice, though less severe, are nonetheless of constitutional proportions. Compare Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. The resolution of those further questions should await an appropriate case; the Court should proceed only step by step in this unplowed field. The opinion of the Court necessarily goes no farther, for only the four members of the majority who unreservedly join the Court's opinion would resolve those questions now.
127
I do not deem the constitutional inquiry in this case ended by the finding in effect conceded by petitioner's counsel, that no isolatable prejudice was occasioned by the manner in which television was employed in this case.1 Courtroom television introduces into the conduct of a criminal trial the element of professional 'showmanship,' an extraneous influence whose subtle capacities for serious mischief in a case of this sort will not be underestimated by any lawyer experienced in the elusive imponderables of the trial arena. In the context of a trial of intense public interest, there is certainly a strong possibility that the timid or reluctant witness, for whom a court appearance even at its traditional best is a harrowing affair, will become more timid or reluctant when he finds that he will also be appearing before a 'hidden audience' of unknown but large dimensions. There is certainly a strong possibility that the 'cocky' witness having a thirst for the limelight will become more 'cocky' under the influence of television. And who can say that the juror who is gratified by having been chosen for a front-line case, an ambitious prosecutor, a publicity-minded defense counsel, and even a conscientious judge will not stray, albeit unconsciously, from doing what 'comes naturally' into pluming themselves for a satisfactory television 'performance'? Surely possibilities of this kind carry grave potentialities for distorting the integrity of the judicial process bearing on the determination of the guilt or innocence of the accused, and, more particularly, for casting doubt on the reliability of the fact-finding process carried on under such conditions. See Douglas, The Public Trial and the Free Press, 46 A.B.A.J. 840 (1960). To be sure, such distortions may produce no telltale signs, but in a highly publicized trial the danger of their presence is substantial, and their effects may be far more pervasive and deleterious than the physical disruptions which all concede would vitiate a conviction. A lively public interest could increase the size of the viewing audience immensely, and the masses of spectators to whom the trial is telecast would have become emotionally involved with the case through the dissemination of pretrial publicity, the usual concomitant of such a case. The presence of television would certainly emphasize to the trial participants that the case is something 'special.' Particularly treacherous situations are presented in cases where pretrial publicity has been massive2 even when jurors positively state they will not be influenced by it; see Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663; Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751. To increase the possibility of influence and the danger of a 'popular verdict' by subjecting the jurors to the view of a mass audience whose approach to the case has been conditioned by pretrial publicity can only make a bad situation worse. The entire thrust of rules of evidence and the other protections attendant upon the modern trial is to keep extraneous influences out of the courtroom. Turner v. State of Louisiana, 379 U.S. 466, 472—473, 85 ,S.Ct. 546, 549—550, 13 L.Ed.2d 424. As we recently observed in Turner, 'Mr. Justice Holmes stated no more than a truism when he observed that 'Any judge who has sat with juries knows that, in spite of forms they are extremely likely to be impregnated by the environing atmosphere.' Frank v. Mangum, 237 U.S. 309, at 349, 35 S.Ct. 582, at 595, 59 L.Ed. 969 (dissenting opinion).' Id., at 472, 85 S.Ct., at 549.3 The knowledge on the part of the jury and other trial participants that they are being televised to an emotionally involved audience can only aggravate the atmosphere created by pretrial publicity.
128
The State argues that specific prejudice must be shown for the Due Process Clause to apply. I do not believe that the Fourteenth Amendment is so impotent when the trial practices in question are instinct with dangers to constitutional guarantees. I am at a loss to understand how the Fourteenth Amendment can be thought not to encompass protection of a state criminal trial from the dangers created by the intrusion of collateral and wholly irrelevant influences into the courtroom. The Court has not hesitated in the past to condemn such practices, even without any positive showing of isolatable prejudice. In Turner v. State of Louisiana, supra, decided just this Term, we held that the 'potentialities' for distortion of the trial created by a key witness serving as bailiff to a sequestered jury were sufficient to violate the Due Process Clause of the Fourteenth Amendment. In Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, the Court made the judgment that a trial judge's determination of a coerced-confession issue is more likely to avoid prejudice than a jury determination, a judgment which indeed overrode a long-standing contrary state practice. And in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751, we held that flamboyant pretrial publicity cast sufficient doubt on the impartiality of the jury to vitiate a conviction, even in the face of statements by all the jurors that they were not subject to its influence. See 366 U.S., at 729, 81 S.Ct., at 1646 (Frankfurter, J., concurring). Other examples of instances in which the Court has exercised its judgment as to the effects of one thing or another on human behavior are plentiful. See, e.g., Griffin v. State of California, 380 U.S. —-, 85 S.Ct. 1229, 14 L.Ed.2d 106; Tancil v. Woolls, 379 U.S. 19, 85 S.Ct. 157, 13 L.Ed.2d 91; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (compare People v. Defore, 242 N.Y. 13, 150 N.E. 585); Avery v. State of Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244; Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749.
129
The judgment that the presence of television in the courtroom represents a serious danger to the trial process is supported by a vast segment of the Bar of this country, as evidenced by Canon 35 of the Canons of Judicial Ethics of the American Bar Association, counseling against such practices,4 the views of the Judicial Conference of the United States (infra, p. 601), Rule 53 of the Federal Rules of Criminal Procedure, and even the 'personal views' (post, pp. 601-602) of the Justices on the dissenting side of the present case.
130
The arguments advanced against the constitutional banning of televised trials seem to me peculiarly unpersuasive. It is said that the pictorial broadcasting of trials will serve to educate the public as to the nature of the judicial process. Whatever force such arguments might have in run-of-the-mill cases, they carry little weight in cases of the sort before us, where the public's interest in viewing the trial is likely to be engendered more by curiosity about the personality of the well-known figure who is the defendant (as here), or about famous witnesses or lawyers who will appear on the television screen, or about the details of the particular crime involved, than by innate curiosity to learn about the workings of the judicial process itself. Indeed it would be naive not to suppose that it would be largely such factors that would qualify a trial for commercial television 'billing,' and it is precisely that kind of case where the risks of permitting television coverage of the proceedings are at their greatest.
131
It is also asserted that televised trials will cause witnesses to be more truthful, and jurors, judges, and lawyers more diligent. To say the least this argument is sophistic, for it is impossible to believe that the reliability of a trial as a method of finding facts and determining guilt or innocence increases in relation to the size of the crowd which is watching it. Attendance by interested spectators in the courtroom will fully satisfy the safeguards of 'public trial.' Once openness is thus assured, the addition of masses of spectators would, I venture to say, detract rather than add to the reliability of the process. See Cox v. State of Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 479, 13 L.Ed.2d 487. A trial in Yankee Stadium, even if the crowd sat in stony silence, would be a substantially different affair from a trial in a traditional courtroom under traditional conditions, and the difference would not, I think, be that the witnesses, lawyers, judges, and jurors in the stadium would be more truthful, diligent, and capable of reliably finding facts and determining guilt or innocence.5 There will be no disagreement, I am sure, among those competent to judge that precisely the opposite would likely be the case.
132
Finally, we should not be deterred from making the constitutional judgment which this case demands by the prospect that the day may come when television will have become so commonplace an affair in the daily life of the average person as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process. If and when that day arrives the constitutional judgment called for now would of course be subject to re- examination in accordance with the traditional workings of the Due Process Clause. At the present juncture I can only conclude that televised trials, at least in cases like this one, possess such capabilities for interfering with the even course of the judicial process that they are constitutionally banned. On these premises I concur in the opinion of the Court.
133
APPENDIX TO OPINION OF MR. JUSTICE HARLAN, CONCURRING.
134
The development of Canon 35 is set out at length in the amicus curiae brief of the American Bar Association, pp. 3—8, as follows:
135
'It (Canon 35) was originally adopted on September 30, 1937 by the House of Delegates1 in the following form:
136
"Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the court room, during sessions of the court or recesses between sessions, and the broadcasting of court proceedings are calculated to detract from the essential dignity of the proceedings, degrade the court and create misconceptions with respect thereto in the mind of the public and should not be permitted.' 62 A.B.A.Rep. 1134—35 (1937).
137
'A Special Committee on Cooperation Between Press, Radio and Bar, as to Publicity Interfering with Fair Trial of Judicial and Quasi-Judicial Proceedings had reported to the Association its grave concern with the dangers attendent upon the use of radio in connection with trials, particularly in light of the spectacular publicity and broadcast of the trial of Bruno Hauptmann.2 The Committee specifically referred to the evil of 'trial in the air'.3 62 A.B.A.Rep. 860 (1937).
138
'After the adoption of Judicial Canon 35, the direct radio broadcasting of court proceedings was disapproved by the Association's Committee on Professional Ethics and Grievances in its Opinion No. 212, March 15, 1941, as being specifically condemned. The Committee quoted with approval the following statement of the Michigan and Detroit Bar Associations:
139
"Such broadcasts are unfair to the defendant and to the witnesses. The natural embarrassment and confusion of a citizen on trial should not be increased by a realization that his voice and his difficulties are being used as entertainment for a vast radio audience. The fear expressed by most persons when facing an audience or microphone is a matter of common knowledge, and but few defendants or witnesses can properly concentrate on facts and testify fully and fairly when so handicapped. * * * Such broadcasts are unfair to the Judge, who should be permitted to devote his undivided attention to the case, unmindful of the effect which his comments or decision may have upon the radio audience.' American Bar Association, Opinions of the Committee on Professional Ethics and Grievances 426 (1957).
140
'In 1952, the growing prominence of television as a medium of mass communication was dealt with in a report of the Special Committee on Televising and Broadcasting Legislative and Judicial Proceedings (headed by the late John W. Davis). 77 A.B.A.Rep. 607 (1952). In condemning the practice of televising judicial proceedings, the Committee called attention to the fact that:
141
"The attention of the court, the jury, lawyers and witnesses should be concentrated upon the trial itself and ought not to be divided with the television or broadcast audience who for the most part have merely the interest of curiosity in the proceedings. It is not difficult to conceive that all participants may become over-concerned with the impression their actions, rulings or testimony will make on the absent multitude.' Id. at 610.
142
'As a result of this report, and the recommendation of the Committee on Professional Ethics and Grievances, Judicial Canon 35 was amended by inserting a ban on the 'televising' of court proceedings and inserting the descriptive phrase 'distract the witness in giving his testimony' before the phrase 'degrade the court.' In addition, a second paragraph was added providing for the televising and broadcasting of certain ceremonial proceedings. Id. at 110—11.
143
'In October, 1954, the Board of Governors authorized the appointment of a Special Bar-Media Conference Committee on Fair Trial-Free Press to meet with representatives of the press, radio, and television. The views of both sides were thoroughly explored and were presented in detail in the September, 1956 issue of the American Bar Association Journal.4 After extensive joint debate, no solutions or agreements were reached. 83 A.B.A.Rep. 790—91 (1958). The Committee did report that it was convinced that
144
"courtroom photographing or broadcasting or both would impose undue police duties upon the trial judge(,) * * * that the broadcasting and the photographing in the courtroom might have an adverse psychological effect upon trial participants, judges, lawyers, witnesses and juries(,) * * * (and) that partial broadcasts of trials, particularly on television, might influence public opinion which in turn might influence trial results. * * *' Id. at 645.
145
'Following the presentation of the Bar-Media Conference Committee report and in connection with the consideration of a report and recommendation of a Special Committee of the American Bar Foundation created in July, 1955 (83 A.B.A.Rep. 643—45 (1958)), the House of Delegates conducted a hearing as a 'Committee of the Whole' during its February, 1958 session at which proponents and opponents of Judicial Canon 35 were fully heard. 83 A.B.A.Rep. 648—69 (1958). Thereafter, at the August, 1958 meeting of the House of Delegates, it was decided to have a Special Committee study Canon 35 and
146
"conduct further studies of the problem, including the obtaining of a body of reliable factual data on the experience of judges and lawyers in those courts were either photography, televising or broadcasting, or all of them, are permitted. * * * The fundamental objective of the Committee and of all others interested must be to consider and make recommendations which will preserve the right of fair trial.' 83 A.B.A.Rep. 284 (1958).
147
'The Special Committee filed an Interim Report and Recommendations with the House of Delegates in August, 1962 setting forth the 'Area and Perspective' of its survey and studies. The report included portions of testimony by media representatives taken at a hearing held in Chicago on February 18, 1962, as well as a summary of the Committee's informal conference with certain representatives from Colorado and Texas. In addition, the report included written comments by officers of State Bar Associations responding to a Committee survey, and certain general correspondence received by the Committee regarding Judicial Canon 35. The report also listed significant publications favoring either revision or retention of the Canon. * * * (Hereinafter cited Int. Rep.)
148
'The Special Committee thereafter submitted its final report and recommendations, concluding that the substantive provisions of Judicial Canon 35 remain valid and 'should be retained as essential safeguards of the individual's inviolate and personal right of fair trial.' * * * The Committee did recommend certain minor deletions * * * and changes * * * which were adopted by the House of Delegates, after full debate, on February 5, 1963:
149
"The taking of photographs in the court room, during sessions of the court or recesses between sessions, and the broadcasting or televising of court proceedings (are calculated to) detract from the essential dignity of the proceedings, distract (the) participants and witnesses in giving (his) testimony, (degrade the court) and create misconceptions with respect thereto in the mind of the public and should not be permitted.'5
150
'A vast majority of the states have voluntarily adopted Judicial Canon 35 in one form or another, and it has been embodied in principle in Rule 53 of the Federal Rules of Criminal Procedure. In a recent Resolution of the Judicial Conference of the United States, the philosophy of Canon 35 was unanimously reaffirmed:
151
"Resolved, That the Judicial Conference of the United States condemns the taking of photographs in the courtroom or its environs in connection with any judicial proceeding, and the broadcasting of judicial proceedings by radio, television, or other means, and considers such practices to be inconsistent with fair judicial procedure and that they ought not to be permitted in any federal court. Int. Rep. p. 97.'
152
(Footnotes numbered and partially omitted.)
153
Mr. Justice STEWART, whom Mr. Justice BLACK, Mr. Justice BRENNAN, and Mr. Justice WHITE join, dissenting.
154
I cannot agree with the Court's decision that the circumstances of this trial led to a denial of the petitioner's Fourteenth Amendment rights. I think that the introduction of television into a courtroom, is, at least in the present state of the art, an extremely unwise policy. It invites many constitutional risks, and it detracts from the inherent dignity of a courtroom. But I am unable to escalate this personal view into a per se constitutional rule. And I am unable to find, on the specific record of this case, that the circumstances attending the limited televising of the petitioner's trial resulted in the denial of any right guaranteed to him by the United States Constitution.
155
On October 22, 1962, the petitioner went to trial in the Seventh Judicial District Court of Smith County, Texas, upon an indictment charging him with the offenses of (1) swindling, (2) theft by false pretenses, and (3) theft by a bailee. After a week spent in selecting a jury, the trial itself lasted some three and a half days. At its conclusion the jury found the petitioner guilty of the offense of swindling under the first count of the indictment. The trial judge permitted portions of the trial proceedings to be televised, under the limitations described below. He also gave news photographers permission to take still pictures in the courtroom under specified conditions.
156
The Texas Court of Criminal Appeals affirmed the petitioner's conviction, and we granted certiorari, limited to a single question. The question, as phrased by the petitioner, is this:
157
'Whether the action of the trial court, over petitioner's continued objection, denied him due process of law and equal protection of the laws under the Fourteenth Amendment to the Constitution of the United States, in requiring petitioner to submit to live television of his trial, and in refusing to adopt in this all out publicity case, as a rule of trial procedure, Canon 35 of the Canons of Judicial Ethics of the American Bar Association, and instead adopting and following, over defendant's objection, Canon 28 of the Canons of Judicial Ethics, since approved by the Judicial Section of the integrated (State agency) State Bar of Texas.'
158
The two Canons of Judicial Ethics referred to in the petitioner's statement of the question presented are set out in the margin.1 But, as the Court rightly says, the problem before us is not one of choosing between the conflicting guidelines reflected in these Canons of Judicial Ethics. It is a problem rooted in the Due Process Clause of the Fourteenth Amendment. We deal here with matters subject to continuous and unforeseeable change—the techniques of public communication. In an area where all the variables may be modified tomorrow, I cannot at this time rest my determination on hypothetical possibilities not present in the record of this case. There is no claim here based upon any right guaranteed by the First Amendment. But it is important to remember that we move in an area touching the realm of free communication, and for that reason, if for no other, I would be wary of imposing any per se rule which, in the light of future technology, might serve to stifle or abridge true First Amendment rights.
I.
159
The indictment was originally returned by a grand jury in Reeves County, Texas, and it engendered widespread publicity. After some preliminary proceedings there, the case was transferred for trial to Smith County, more than 500 miles away. The trial was set for September 24, 1962, but it did not commence on that date. Instead, that day and the next were spent in hearings on two motions filed by defense counsel: a motion to bar television and news cameras from the trial, and a motion to continue the trial to a later date. Those proceedings were themselves telecast 'live,' and news photographers were permitted to take pictures in the courtroom. The activities of the television crews and news photographers led to considerable disruption of the hearings.2 At the conclusion of the hearings the motion for a continuance was granted, and the case reset for trial on October 22. The motion to bar television and news photographers from the trial was denied.3
On October 1, the trial judge issued an order
160
delineating what coverage he would permit during the trial.4 As a result of that order and ensuing conferences between the judge and representatives of the news media, the environment for the trial, which began on October 22, was in sharp contrast to that of the September hearings. The actual extent of television and news photography in the courtroom was described by the judge, after the trial had ended, in certifying the petitioner's bill of exceptions. This description is confirmed by my understanding of the entire record and was agreed to and accepted by defense counsel:
161
'Prior to the trial of October 22, 1962, there was a booth constructed and placed in the rear of the courtroom painted the same or near the same color as the courtroom with a small opening across the top for the use of cameras. * * *
162
'Live telecasting and radio broadcasting were not permitted and the only telecasting was on film without sound, and there was not any broadcasting of the trial by radio permitted. Each network, ABC, NBC, CBS and KRLD (KLTV) Television in Tyler was allowed a camera in the courtroom. * * * The telecasting on film of this case was not a continuous camera operation and only pictures being taken at intervals during the day to be used on their regular news casts later in the day. There were some days during the trial that cameras of only one or two stations were in operation, the others not being in attendance upon the Court each and every day. The Court did not permit any cameras other than those that were noiseless nor were flood lights and flash bulbs allowed to be used in the courtroom. The Court permitted one news photographer with Associated Press, United Press International and Tyler Morning Telegraph and Courier Times. However, they were not permitted inside the Bar; and the Court did not permit any telecasting or photographing in the hallways leading into the courtroom or on the second floor of the courthouse where the courtroom is situated, in order that the Defendant and his attorneys would not be hindered, molested or harassed in approaching or leaving the courtroom. The Court did permit live telecasting of the arguments of State's counsel and the returning of the verdict by the Jury and its acceptance by the Court. The opening argument of the District Attorney of Smith County was carried by sound and because of transmission difficulty, there was not any picture. The closing argument for the State by the District Attorney of Reeves County was carried live by both picture and sound. The arguments of attorneys for Defendant, John D. Cofer and Hume Cofer, were not telecast or broadcast as the Court granted their Motion that same not be permitted.
163
'There was not any televising at any time during the trial except from the booth in the rear of the courtroom, and during the argument of counsel to the jury, news photography was required to operate from the booth so that they would not interfere or detract from the attention of either the jurors or the attorneys.
164
'During the trial that began October 22nd, there was never at any time any radio broadcasting equipment in the courtroom. There was some equipment in a room off of the courtroom where there were periodic news reports given; and throughout the trial that began October 22nd, not any witness requested not to be televised or photographed while they were testifying. Neither did any juror, while being interrogated on voir dire or at any other time, make any request of the Court not to be televised.'
165
Thus, except for the closing arguments for the prosecution and the return of the jury's verdict, there was no 'live' telecasting of the trial. And, even for purposes of delayed telecasting on later news programs, no words or other sounds were permitted to be recorded while the members of the jury were being selected or while any witness was testifying. No witnesses and no jurors were televised or photographed over their objection.5
166
Finally, the members of the jury saw no telecasts and no pictures of anything that went on during the trial. In accord with Texas law, the jurors were sequestered, day and night, from the beginning of the trial until it ended.6 The jurors were lodged each night in quarters provided for that purpose in the courthouse itself. On the evening of November 6, by agreement of counsel and special permission of the court, the members of the jury were permitted to watch the election returns on television for a short period. For this purpose a portable television was brought into the jury's quarters by a court officer, and operated by him. Otherwise the jurors were not permitted to watch television at any time during the trial. The only newspapers permitted the jury were ones from which all coverage of the trial had been physically removed.
II.
167
It is important to bear in mind the precise limits of the question before us in this case. The petition for a writ of certiorari asked us to review four separate constitutional claims. We declined to review three of them, among which was the claim that the members of the jury 'had received through the news media damaging and prejudicial evidence * * *.'7 We thus left undisturbed the determination of the Texas Court of Criminal Appeals that the members of the jury were not prejudiced by the widespread publicity which preceded the petitioner's trial. One ingredient of this pretrial publicity was the telecast of the September hearings. Despite the confusion in the courtroom during those hearings, all that a potential juror could have possibly learned from watching them on television was that the petitioner's case had been called for trial, and that motions had been made and acted upon for a continuance, and to exclude cameras and television. At those hearings, there was no discussion whatever of anything bearing on the petitioner's guilt or innocence. This was conceded by the petitioner's counsel at the trial.8
168
Because of our refusal to review the petitioner's claim that pretrial publicity had a prejudicial effect upon the jurors in this case, and because, insofar as the September hearings were an element of that publicity, the claim is patently without merit, that issue is simply not here. Our decision in Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663, therefore, has no bearing at all in this case. There the record showed that the inhabitants of the small Louisiana parish where the trial was held had repeatedly been exposed to a television film showing 'Rideau, in jail, flanked by the sheriff and two state troopers, admitting in detail the commission of the robbery, kidnapping, and murder, in response to leading questions by the sheriff.' 373 U.S., at 725, 83 S.Ct., at 1419. We found that '(a)ny subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality.' Id., at 726, 83 S.Ct., at 1419. See also Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751.
169
The Rideau case was no more than a contemporary application of enduring principles of procedural due process, principles reflected in such earlier cases as Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; and Chambers v. State of Florida, 309 U.S. 227, 235—241, 60 S.Ct. 472, 476—479, 84 L.Ed. 716. 'Under our Constitution's guarantee of due process,' we said, 'a person accused of committing a crime is vouchsafed basic minimal rights. Among these are the right to counsel, the right to plead not guilty, and the right to be tried in a courtroom presided over by a judge.' 373 U.S., at 726—727, 83 S.Ct., at 1419. We had occasion to apply the same basic concepts of procedural due process earlier this Term in Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424. 'In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the 'evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel.' 379 U.S., at 472—473, 85 S.Ct., at 550.
170
But we do not deal here with mob domination of a courtroom, with a kangaroo trial, with a prejudiced judge or a jury inflamed with bias. Under the limited grant of certiorari in this case, the sole question before us is an entirely different one. It concerns only the regulated presence of television and still photography at the trial itself, which began on October 22, 1962. Any discussion of pretrial events can do no more than obscure the important question which is actually before us.
III.
171
It is obvious that the introduction of television and news cameras into a criminal trial invites many serious constitutional hazards. The very presence of photographers and television cameramen plying their trade in a courtroom might be so completely and thoroughly disruptive and distracting as to make a fair trial impossible. Thus, if the scene at the September hearing had been repeated in the courtroom during this jury trial, it is difficult to conceive how a fair trial in the constitutional sense could have been afforded the defendant.9 And even if, as was true here, the television cameras are so controlled and concealed as to be hardly perceptible in the courtroom itself, there are risks of constitutional dimensions that lurk in the very process of televising court proceedings at all.
172
Some of those risks are catalogued in the amicus curiae brief filed in this case by the American Bar Association: '(P)otential or actual jurors, in the absence of enforceable and effective safeguards, may arrive at certain misconceptions regarding the defendant and his trial by viewing televised pre-trial hearings and motions from which the jury is ordinarily excluded. Evidence otherwise inadmissible may leave an indelible mark. * * * Once the trial begins, exposure to nightly rebroadcasts of selected portions of the day's proceedings will be difficult to guard against, as jurors spend frequent evenings before the television set. The obvious impact of witnessing repeated trial episodes and hearing accompanying commentary, episodes admittedly chosen for their news value and not for evidentiary purposes, can serve only to distort the jurors' perspective. * * * Despite the court's injunction not to discuss the case, it seems undeniable that jurors will be subject to the pressure of television-watching family, friends and, indeed, strangers. * * * It is not too much to imagine a juror being confronted with his wife's television-oriented viewpoint. * * * Additionally, the jurors' daily television appearances may make them recognizable celebrities, likely to be stopped by passing strangers, or perhaps harried by intruding telephone calls. * * *' Constitutional problems of another kind might arise if a witness or juror were subjected to being televised over his objection.
173
The plain fact of the matter, however, is that none of these things happened or could have happened in this case. The jurors themselves were prevented from seeing any telecasts of the trial, and completely insulated from association with any members of the public who did see such telecasts. This case, therefore, does not remotely resemble Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424, where, during the trial, the jurors were subjected outside the courtroom to unmeasured and unmeasurable influences by key witnesses for the prosecution.
174
In the courtroom itself, there is nothing to show that the trial proceeded in any way other than it would have proceeded if cameras and television had not been present. In appearance, the courtroom was practically unaltered. There was no obtrusiveness and no distraction, no noise and no special lighting. There is no indication anywhere in the record of any disturbance whatever of the judicial proceedings. There is no claim that the conduct of the judge, or that any deed or word of counsel, or of any witness, or of any juror, was influenced in any way by the presence of photographers or by television.
175
Furthermore, from a reading of the record it is crystal clear that this was not a trial where the judge was harassed or confused or lacking in command of the proceedings before the jury. Nor once, after the first witness was called, was there any interruption at all of the trial proper to secure a ruling concerning the presence of cameramen in the courtroom. There was no occasion, during the entire trial—until after the jury adjourned to reach its verdict—for any cautionary word to members of the press in the courtroom. The only time a motion was made, the jury was not in the courtroom. The trial itself was a most mundane affair, totally lacking in the lurid and completely emotionless. The evidence related solely to the circumstances in which various documents had been signed and negotiated. It was highly technical, if not downright dull. The petitioner called no witnesses, and counsel for petitioner made only a brief closing argument to the jury. There is nothing to indicate that the issues involved were of the kind where emotion could hold sway. The transcript of the trial belies any notion that frequent interruptions and inconsistent rulings communicated to the jury any sense that the judge was unable to concentrate on protecting the defendant and conducting the trial in a fair manner, in accordance with the State and Federal Constitutions.
IV.
176
What ultimately emerges from this record, therefore, is one bald question—whether the Fourteenth Amendment of the United States Constitution prohibits all television cameras from a state courtroom whenever a criminal trial is in progress. In the light of this record and what we now know about the impact of television on a criminal trial, I can find no such prohibition in the Fourteenth Amendment or in any other provision of the Constitution. If what occurred did not deprive the petitioner of his constitutional right to a fair trial, then the fact that the public could view the proceeding on television has no constitutional significance. The Constitution does not make us arbiters of the image that a televised state criminal trial projects to the public.
177
While no First Amendment claim is made in this case, there are intimations in the opinions filed by my Brethren in the majority which strike me as disturbingly alien to the First and Fourteenth Amendments' guarantees against federal or state interference with the free communication of information and ideas. The suggestion that there are limits upon the public's right to know what goes on in the courts causes me deep concern. The idea of imposing upon any medium of communications the burden of justifying its presence is contrary to where I had always thought the presumption must lie in the area of First Amendment freedoms. See Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460. And the proposition that nonparticipants in a trial might get the 'wrong impression' from unfettered reporting and commentary contains an invitation to censorship which I cannot accept. Where there is no disruption of the 'essential requirement of the fair and orderly administration of justice,' '(f)reedom of discussion should be given the widest range.' Pennekamp v. State of Florida, 328 U.S. 331, 347, 66 S.Ct. 1029, 1037, 90 L.Ed. 1295; Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192. Cf. Cox v. State of Louisiana, 379 U.S. 559, 563, 85 S.Ct. 476, 480, 13 L.Ed.2d 487.
178
I do not think that the Constitution denies to the State or to individual trial judges all discretion to conduct criminal trials with television cameras present, no matter how unobtrusive the cameras may be. I cannot say at this time that it is impossible to have a constitutional trial whenever any part of the proceedings is televised or recorded on television film. I cannot now hold that the Constitution absolutely bars television cameras from every criminal courtroom, even if they have no impact upon the jury, no effect upon any witness, and no influence upon the conduct of the judge.
179
For these reasons I would affirm the judgment.
180
Mr. Justice WHITE, with whom Mr. Justice BRENNAN joins, dissenting.
181
I agree with Mr. Justice STEWART that a finding of constitutional prejudice on this record entails erecting a flat ban on the use of cameras in the courtroom and believe that it is premature to promulgate such a broad constitutional principle at the present time. This is the first case in this Court dealing with the subject of television coverage of criminal trials; our cases dealing with analogous subjects are not really controlling, cf. Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663; and there is, on the whole, a very limited amount of experience in this country with television coverage of trials. In my view, the currently available materials assessing the effect of cameras in the courtroom are too sparse and fragmentary to constitute the basis for a constitutional judgment permanently barring any and all forms of television coverage. As was said in another context, 'we know too little of the actual impact * * * to reach a conclusion on the bare bones of the * * * evidence before us.' White Motor Co. v. United States, 372 U.S. 253, 261, 83 S.Ct. 696, 701, 9 L.Ed.2d 738. It may well be, however, that as further experience and informed judgment do become available, the use of cameras in the courtroom, as in this trial, will prove to pose such a serious hazard to a defendant's rights that a violation of the Fourteenth Amendment will be found without a showing on the record of specific demonstrable prejudice to the defendant. Compare Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, with Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, with Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522, with Jackson v. Denno, 378 U.S. 368, 389—390, 84 S.Ct. 1774, 1787—1788, 12 L.Ed.2d 908.
182
The opinion of the Court in effect precludes further opportunity for intelligent assessment of the probable hazards imposed by the use of cameras at criminal trials. Serious threats to constitutional rights in some instances justify a prophylactic rule dispensing with the necessity of showing specific prejudice in a particular case. Rideau v. State of Louisiana, 373 U.S. 723, 727, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663; Jackson v. Denno, 378 U.S. 368, 389, 84 S.Ct. 1774, 1787, 12 L.Ed.2d 908. But these are instances in which there has been ample experience on which to base an informed judgment. Here, although our experience is inadequate and our judgment correspondingly infirm, the Court discourages further meaningful study of the use of television at criminal trials. Accordingly, I dissent.
183
Mr. Justice BRENNAN.
184
I write merely to emphasize that only four of the five Justices voting to reverse rest on the proposition that televised criminal trials are constitutionally infirm, whatever the circumstances. Although the opinion announced by my Brother CLARK purports to be an 'opinion of the Court,' my Brother HARLAN subscribes to a significantly less sweeping proposition. He states:
185
'The Estes trial was a heavily publicized and highly sentational affair. I therefore put aside all other types of cases * * *. The resolution of those further questions should await an appropriate case; the Court should proceed only step by step in this unplowed field. The opinion of the Court necessarily goes no farther, for only the four members of the majority who unreservedly join the Court's opinion would resolve those questions now.' Ante, pp. 590-591. (Emphasis supplied.)
186
Thus today's decision is not a blanket constitutional prohibition against the televising of state criminal trials.
187
While I join the dissents of my Brothers STEWART and WHITE, I do so on the understanding that their use of the expressions 'the Court's opinion' or 'the opinion of the Court' refers only to those views of our four Brethren which my Brother HARLAN explicitly states he shares.
*
Mr. Justice HARLAN concurs in this opinion subject to the reservations and to the extent indicated in his concurring opinion, post, p. 587
1
The evidence indicated that petitioner, through false pretenses and fraudulent representations, induced certain farmers to purchase fertilizer tanks and accompanying equipment, which in fact did not exist, and to sign and deliver to him chattel mortgages on the fictitious property.
2
Due to mechanical difficulty there was no picture during the opening argument.
3
Only six States, in addition to Texas, require sequestration of the jury prior to its deliberations in a non-capital felony trial. The great majority of jurisdictions leave the matter to the trial judge's discretion, while in at least one State the jury will be kept together in such circumstances only upon a showing of cause by the defendant.
1
N.Y. Times, Sept. 25, 1962, p. 46, col. 4. See Appendix Photographs 1, 2, 3.
2
Counsel explained to the trial court that he desired to protect petitioner from the cameras until the court had made its ruling.
3
See Appendix, Photograph 6.
4
See Appendix, Photograph 7.
5
Jenks, A Short History of English Law 46—47 (6th ed. 1949); I Stephen, A History of the Criminal Law of England 51—74 (1883).
6
See, e.g., Craig v. Harney, 331 U.S. 367, 378, 67 S.Ct. 1249, 1256, 91 L.Ed. 1546; Irvin v. Dowd, 366 U.S. 717, 728, 81 S.Ct. 1639, 1645, 6 L.Ed.2d 751; Brady v. State of Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215; Jackson v. Denno, 378 U.S. 368, 391, 84 S.Ct. 1774, 1788, 12 L.Ed.2d 908.
7
See Singer v. United States, 380 U.S. 24, 27, 85 S.Ct. 783, 786, 13 L.Ed.2d 630.
8
II Pollock and Maitland, The History of English Law 621 622 (2d ed. 1906).
9
I Stephen, supra, note 5, at 260.
10
See 7 Will. 3, c. 3 (1695).
11
Ibid.
12
Ibid; 6 & 7 Will. 4, c. 114 (1836).
13
I Stephen, supra, note 5, at 427.
14
I Journals of the Continental Congress 1774—1789, 69 (Ford ed. 1904).
15
Radin, The Right to a Public Trial, 6 Temple L.Q. 381, 383, n. 5a (1932).
16
Adamson v. People of State of California, 332 U.S. 46, 71 72, 67 S.Ct. 1672, 1686, 91 L.Ed. 1903 (dissenting opinion of Mr. Justice Black).
17
Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 795, 9 L.Ed.2d 799.
18
Pointer v. State of Texas, 380 U.S. 400, 408, 85 S.Ct. 1065 (opinion of Mr. Justice Harlam, concurring in the result).
19
Cox v. State of Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 479, 13 L.Ed.2d 487; Frank v. Mangum, 237 U.S. 309, 347, 35 S.Ct. 582, 595, 59 L.Ed. 969 (dissenting opinion of Justice Holmes). See Adamson v. State of California, 332 U.S. 46, 53, 67 S.Ct. 1672, 1676; In re Murchison, 349 U.S. 133, 136; Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642; Jackson v. Denno, 378 U.S. 368, 377, 84 S.Ct. 1774, 1781 (Court opinion), 424, 84 S.Ct. 1805 (dissenting opinion of Mr. Justice Clark), 428, 84 S.Ct. 1807 (dissenting opinion of Mr. Justice Harlan).
20
Frank v. Mangum, 237 U.S. 309, 346, 35 S.Ct. 582, 594 (dissenting opinion).
21
Cox v. State of Louisiana, 379 U.S. 559, 583, 85 S.Ct. 476, 471 (dissenting opinion).
22
See Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791; Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9; Napue v People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217; and Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.
23
See Appendix, Photograph 7.
24
Keating, 'Not 'Bonanza,' Not 'Peyton Place,' But the U.S. Senate,' N.Y. Times Magazine, April 25, 1965, 67, 72. See, e.g., N.Y. Times, April 22, 1965, p. 43, col. 2 (in describing a televised stockholders' meeting the Times reported, 'Some stockholders seemed very much aware they were on camera'); Tinkham, Should Canon 35 Be Amended? A Question of Proper Judicial Administration, 42 A.B.A.J. 843, 845 (1956) (in giving examples of how people react when they know they are on television, the author describes the reactions of a television audience when the camera was turned on it as 'contorted, grimacing'); Gould, N. Y. Times, March 11, 1956, § 2, p. X 11, col. 2 ('The most experienced performers in show business know the horrors of stage fright before they go on TV. This psychological and emotional burden must not be placed on a layman whose testimony may have a bearing on whether, in a murder trial, another human being is to live or die.').
25
See, e.g., Douglas, The Public Trial and the Free Press, 46 A.B.A.J. 840, 842 (1960). In United States v. Kleinman, 107 F.Supp. 407 (D.C.D.C.1952), the court refused to hold in contempt witnesses in a congressional hearing who refused to answer questions while television cameras were focused on them. The court stated:
'The only reason for having a witness on the stand, either before a committee of Congress or before a court, is to get a thoughtful, calm, considered and, it is to be hoped, truthful disclosure of facts. That is not always accomplished, even under the best of circumstances. But at least the atmosphere of the forum should lend itself to that end.
'In the cases now to be decided, the stipulation of facts discloses that there were, in close proximity to the witness, television cameras, newsreel cameras, news photographers with their concomitant flashbulbs, radio microphones, a large and crowded hearing room with spectators standing along the walls, etc. The obdurate stand taken by these two defendants must be viewed in the context of all these conditions. The concentration of all of these elements seems to me necessarily so to disturb and distract any witness to the point that he might say today something that next week he will realize was erroneous. And the mistake could get him in trouble all over again.' Id., at 408.
26
See, e.g., Douglas, supra, note 25, at 842; Yesawich, Televising and Broadcasting Trials, 37 Cornell L.Q. 701, 717 (1952).
27
Wigmore, A Kaleidoscope of Justice 487 (1941).
28
Mueller, Problems Posed by Publicity to Crime and Criminal Proceedings, 110 U.Pa.L.Rev. 1, 6 (1961).
29
Compare Appendix, Photograph 5, with Appendix, Photograph 6.
30
N.Y. Times, Jan. 23, 1959, p. 1, col. 1.
31
Berman, Introduction to the Trial of the U 2 xiii, xii xiii, xxix (1960).
32
A revealing dialogue took place in the present case between defense counsel and one of the television executives present in the courtroom during the September 24 hearing.
'Q. The camera on the other side of the room has to look over a corner of the jury box and past the jurors to be aimed at the witness box, does it not?
'A. I think that is pretty clear, sir. I don't think the jurors would be in the way there.
'Q. You don't think the jurors would get in the way of your operations?
'A. I don't mean that exactly, sir.'
33
Petition for writ of certiorari, 35a.
34
See Appendix, Photograph 4.
35
See, e.g., Douglas, supra, note 25, at 844.
36
Cf. Fay v. People of State of New York, 332 U.S. 261, 300, 67 S.Ct. 1613, 1633, 91 L.Ed. 2043 (dissenting opinion of Mr. Justice Murphy).
37
The Canon provides in pertinent part:
'Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the court room, during sessions of the court or recesses between sessions, and the broadcasting or televising of court proceedings detract from the essential dignity of the proceedings, district participants and witnesses in giving testimony, and create misconceptions with respect thereto in the mind of the public and should not be permitted.'
38
Colorado, In re Hearings Concerning Canon 35 of Canons of Judicial Ethics, 296 P.2d 465 (Colo.Sup.Ct.1956), and Texas permit televising of trials in the discretion of the trial judge. The current situation in Oklahoma is unclear. In Lyles v. State, 330 P.2d 734 (1958), the Criminal Court of Appeals of Oklahoma stated that the televising of proceedings was in the discretion of the trial judge. In 1959, however, the Supreme Court adopted a rule prohibiting television during actual proceedings. Okl.Stat.Ann., Tit. 5, at 65—66 (1963 Supp.). Nevertheless, in 1961 the court again stated that the televising of trials is a matter for the trial judge's discretion. Cody v. State, 361 P.2d 307, 84 A.L.R.2d 997 (Ct.Crim.App.Okl.1961).
39
With the exceptions stated in note 38, supra, no State affirmatively permits televised trials. It has been stated that Canon 35 is in effect in 30 States. 48 J.Am.Jud.Soc. 80 (1964); Brief for Petitioner, p. 39. It is difficult to verify this figure because of the lack of uniformity among the States in reporting their court rules. However, the following States have clearly adopted Canon 35, or its equivalent: Alaska, Alaska Rules Crim.Proc. 48; Arizona, Ariz.Sup.Ct.Rule 45, 17 Ariz.Rev.Stat.Ann., at 40; Connecticut, Conn. Practice Book 27 (1963); Delaware, Del.Sup.Ct.Rule 33, 13 Del.Code Ann., at 23 (1964 Supp.) (adopted Canon 35 in its pre-1952 form, which does not explicitly prohibit television, but does prohibit 'the taking of photographs' and 'broadcasting of court proceedings'); Florida, Code of Ethics, Rule A35, 31 Fla.Stat.Ann., at 285 (1964 Supp.), see Brumfield v. State, 108 So.2d 33 (Fla.Sup.Ct.1958); Hawaii, Hawaii Sup.Ct.Rule 16, 43 Haw. 450; Illinois, 1964 Ann.Rep. of the Ill.Judicial Conference 168—169, see People v. Ulrich, 376 Ill. 461, 34 N.E.2d 393 (1941), People v. Munday, 280 Ill. 32, 117 N.E. 286 (1917); Iowa, Iowa Sup.Ct.Rule 119, 40 Iowa Code Ann., c. 610 (1964 Supp.); Kansas, Kansas Sup.Ct. Rule 117, 191 Kan. xxiv (1963) (does not refer specifically to television); Kentucky, Ky.Ct.App.Rule 3.170, Russell's Kentucky Practice and Service 21 (1964); Louisiana, Canon of Judicial Ethics XXIII, 242 La. LI (1960); Michigan, Canon of Judicial Ethics 35, Callaghan's Michigan Pleading and Practice, Rules at 422—423 (2d ed. 1962). New Jersey, Canon of Judicial Ethics 35, 1 Waltzinger, New Jersey Practice 299 (Rev. ed. 1954); New Mexico, N.M.Sup.Ct.Rule 27, 4 N.M.Stat.Ann., at 95 (1963 Supp.); New York, N.Y.Rules of the Administrative Board of the Judicial Conference, Rule 5, N.Y.Judiciary Law, at 320 (1964 Supp.); Ohio, 176 Ohio St. lxiv (1964), see State v. Clifford, 162 Ohio St. 370, 123 N.E.2d 8 (1954), cert. denied, 349 U.S. 929, 75 S.Ct. 771, 99 L.Ed. 1259; Tennessee, Tenn.Sup.Ct.Rule 38, 209 Tenn. 818 (1961); Virginia, 201 Va. cvii (1960) (prohibits taking of photographs and broadcasting, although it does not refer specifically to television); Washington, 61 Wash.2d xxviii (1963); West Virginia, 141 W.Va. viii (1955).
In addition, Brand, Bar Associations, Attorneys and Judges (1956 and 1959 Supp.) reports that the Idaho Supreme Court adopted Canon 35 in its present form and the Supreme Courts of Oregon, South Dakota and Utah adopted the Canon when it merely prohibited 'photographing and 'broadcasting' without specifically mentioning television. It has also been reported that the Supreme Court of Arkansas adopted Canon 35. 44 J.Am.Jud.Soc. 120 (1960).
Moreover, the Supreme Court of California assumed it was 'improper' to televise criminal proceedings in People v. Stroble, 36 Cal.2d 615, 226 P.2d 330 (1951), affirmed 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872, rehearing denied 343 U.S. 952, 72 S.Ct. 1039, 96 L.Ed. 1353; see the rule adopted by the Conference of California Judges, 24 Cal.State Bar J. 299 (1949); the Court of Appeals of Maryland in Ex parte Sturm, 152 Md. 114, 122, 136 A. 312, 315, 51 A.L.R. 356 (1927), used language indicating that Maryland would probably bar television from the courtroom if faced with the problem; and the Supreme Court of Pennsylvania cited with approval Canon 35 in Mack Appeal, 386 Pa. 251, 257, n. 5, 126 A.2d 679, 681—682, n. 4 (1956), cert. denied Mack v. Com. of Pa., 352 U.S. 1002, 77 S.Ct. 559, 1 L.Ed.2d 547, see 48 J.Am.Jud.Soc. 200 (1965).
40
Rule 53 provides:
'The taking of photographis in the court room during the progress of judicial proceedings or radio broadcasting of judicial proceedings from the court room shall not be permitted by the court.'
41
'Resolved, That the Judicial Conference of the United States condemns the taking of photographs in the courtroom or its environs in connection with any judicial proceedings, and the broadcasting of judicial proceedings by radio, television, or other means, and considers such practices to be inconsistent with fair judicial procedure and that they ought not to be permitted in any federal court.' Annual Report of the Proceedings of the Judicial Conference of the United States, March 8—9, 1962, p. 10.
42
See, e.g., 3 Blackstone, Commentaries on the Laws of England 372—373 (15th ed. 1809); 6 Wigmore, Evidence 332—335 (3d ed. 1940).
43
Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546. See Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192; Pennekamp v. State of Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295.
44
Compare Olmstead v. United States, 277 U.S. 438, 471, 48 S.Ct. 564, 570, 72 L.Ed. 944 (dissenting opinion of Mr. Justice Brandeis); On Lee v. United States, 343 U.S. 747, 762, 72 S.Ct. 967, 976, 96 L.Ed. 1270 (dissenting opinion of Mr. Justice Douglas); Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734; Lopez v. United States, 373 U.S. 427, 445—446, 83 S.Ct. 1381, 1391—1392, 10 L.Ed.2d 462 (opinion concurring in the result), 373 U.S. 465, 83 S.Ct. 1402 (dissenting opinion of Mr. Justice Brennan).
1
The trial judge ordered that there was to be no audio transmission of the witnesses' testimony. The witnesses, however, were present at the September hearing when everything was broadcast, and the record does not show affirmatively that they were aware that the microphone which confronted them during the actual trial was not being used for the same purpose.
2
Petitioner in this case amassed 11 volumes of pretrial press clippings.
3
The Court had occasion to recognize in Cox v. State of Louisiana, 379 U.S. 559, 565, 85 S.Ct. 476, 481, 13 L.Ed.2d 487, that even 'judges are human' and not immune from outside environmental influences.
4
The consistent position of the American Bar Association is set out in the Appendix.
5
There may, of course, be a difference in impact upon the atmosphere and trial participants between the physical presence of masses of people and the presence of a camera lens which permits masses of people to observe the process remotely. However, the critical element is the knowledge of the trial participants that they are subject to such visual observation, an element which is, of course, present in this case.
1
'The House of Delegates is not only the governing body of the American Bar Association; because of the presence of representatives of all State Bar Associations, the largest and most important local bar associations, and of other important national professional groups, it is in fact a broadly representative policy forum for the profession as a whole.'
2
'See State v. Hauptmann, 115 N.J.L. 412, 180 Atl. 809 (Ct.Err. & App.), cert. denied, 296 U.S. 649, (56 S.Ct. 310, 80 L.Ed. 461) (1935).'
3
'Prior to the adoption of Judicial Canon 35, the impropriety of permitting radio broadcasts of court proceedings was recognized by the Committee on Professional Ethics and Grievances of the Association in its Opinion No. 67, March 21, 1932. The Committee had recourse to Judicial Canon 34 which provides that a judge should not administer his office 'for the purpose of advancing his personal ambitions or increasing his popularity.' The Committee found that radio broadcasting of a trial changes 'what should be the most serious of human institutions either into an enterprise for the entertainment of the public or of one for promoting publicity for the judge.' American Bar Association, Opinions of the Committee on Professional Ethics and Grievances 163 (1957).'
4
'42 A.B.A.J. 834, 838, 843 (1956).'
5
'The full text of Judicial Canon 35, as amended, is as follows:
"IMPROPER PUBLICIZING OF COURT PROCEEDINGS
"Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the court room, during sessions of the court or recesses between sessions, and the broadcasting or televising of court proceedings detract from the essential dignity of the proceedings, distract participants and witnesses in giving testimony, and create misconceptions with respect thereto in the mind of the public and should not be permitted.
"Provided that this restriction shall not apply to the broadcasting or televising, under the supervision of the court, of such portions of naturalization proceedings (other than the interrogation of applicants) as are designed and carried out exclusively as a ceremony for the purpose of publicly demonstrating in an impressive manner the essential dignity and the serious nature of naturalization."
1
Canons of Judicial Ethics. American Bar Association: Judicial Canon 35. Improper publicizing of Court proceedings.
'Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the court room, during sessions of the court or recesses between sessions, and the broadcasting or televising of court proceedings detract from the essential dignity of the proceedings, distract participants and witnesses in giving testimony, and create misconceptions with respect thereto in the mind of the public and should not be permitted.
'Provided that this restriction shall not apply to the broadcasting or televising, under the supervision of the court, of such portions of naturalization proceedings (other than the interrogation of applicants) as are designed and carried out exclusively as a ceremony for the purpose of publicly demonstrating in an impressive manner the essential dignity and the serious nature of naturalization.'
Canons of Judicial Ethics, Integrated State Bar of Texas: Judicial Canon 28. Improper Publicizing of Court Proceedings.
'Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the court room, during sessions of the court or recesses between sessions, and the broadcasting or televising of court proceedings unless properly supervised and controlled, may detract from the essential dignity of the proceedings, distract participants and witnesses in giving testimony, and create misconceptions with respect thereto in the mind of the public. The supervision and control of such trial coverage shall be left to the trial judge who has the inherent power to exclude or control coverage in the proper case in the interest of justice.
'In connection with the control of such coverage the following declaration of principles is adopted:
'(1) There should be no use of flash bulbs or other artificial lighting.
'(2) No witness, over his expressed objection, should be photographed, his voice broadcast or be televised.
'(3) The representatives of news media must obtain permission of the trial judge to cover by photograph, broadcasting or televising, and shall comply with the rules prescribed by the judge for the exercise of the privilege.
'(4) Any violation of the Court's Rules shall be punished as a contempt.
'(5) Where a judge has refused to allow coverage or has regulated it, any attempt, other than argument by representatives of the news media directly with the Court, to bring pressure of any kind on the judge, pending final disposition of the cause in trial, shall be punished as a contempt.'
2
A contemporary newspaper account described the scene as follows:
'A television motor van, big as an intercontinental bus, was parked outside the courthouse and the second-floor courtroom was a forest of equipment. Two television cameras had been set up inside the bar and four more marked cameras were aligned just outside the gates.
'A microphone stuck its 12-inch snout inside the jury box, now occupied by an overflow of reporters from the press table, and three microphones confronted Judge Dunagan on his bench. (C)ables and wires snaked over the floor.' The New York Times, September 25, 1962, p. 46, col. 4.
3
In ruling on the motion, the trial judge stated:
'In the past, it has been the policy of this Court to permit televising in the court room under the rules and supervision of the Court. Heretofore, I have not encountered any difficulty with it. I was unable to observe any detraction from the witnesses or the attorneys in those cases. We have watched television, of course, grow up from its infancy and now into its maturity; and it is a news media. So I really do not see any justified reason why it should not be permitted to take its proper seat in the family circle. However, it will be under the strict supervision of the Court. I know there has been pro and con about televising in the court room. I have heard some say that it makes a circus out of the Court. I had the privilege yesterday morning of sitting in my home and viewing a sermon by the First Baptist Church over in Dallas and certainly it wasn't any circus in that church; and I feel that if it is a proper instrument in the house of the Lord, it is not out of place in the court room, if properly supervised.
'Now, television is going to be televising whatever the scene is here. If you want to watch a ball game and that is what they televise, you are going to see a ball game. If you want to see a preacher and hear a sermon, you tune in on that and that is what you are going to get. If the Court permits a circus in this court room, it will be televised, that is true, but they will not be creating a circus.
'Now, the most important point is whether or not it would interfere with a fair and impartial trial of this Defendant. That is the most important point, and that is the purpose, or will be the primary purpose of the Court, to insure that he gets that fair trial.
'There is not anything the Court can do about the interest in this case, but I can control your activites and your conduct here; and I can assure you now that this Court is not going to be turned into a circus with TV or without it. Whatever action is necessary for the Court to take to insure that, the Court will take it.
'There has been one consideration that the Court has given and it is that this is a small court room and there will be hundreds of people trying to get into this court room to witness this trial. I believe we would have less confusion if they would stay at home and stay out of the court room and look in on the trial. With all of those people trying to crowd in and push into this court room, that is another consideration I have given to it.'
4
'In my statement of September 24, 1962, admitting television and other cameras in the court room during the trial of Billie Sol Estes, I said cameras would be allowed under the control and direction of the Court so long as they did not violate the legal rights of the Defendant or the State of Texas.
'In line with my statement of September 24, 1962, I am at this time informing both television and radio that live broadcasting or telecasting by either news media cannot and will not be permitted during the interrogation of jurors in testing their qualifications, or of the testimony given by the witnesses, as to do so would be in violation of Art. 644 of the Code of Criminal Procedure of Texas, which provides as follows: 'At the request of either party, the witnesses on both sides may be sworn and placed in the custody of an officer and removed out of the court room to some place where they can not hear the testimony as delivered by any other witness in the case. This is termed placing witnesses under rule.'
'* * * (E)ach television network and the local television station will be allowed one film camera without sound in the court room and the film will be made available to other television stations on a pool basis. Marshall Pengra, manager of Television Station KLTV, Tyler, will be in charge of the independent pool and independent stations may contact him. The same will be true of cameras for the press, which will be limited to the local press, Associated Press and United Press.
'I am making this statement at this time in order that the two news media affected may have sufficient notice before the case is called on October 22nd.
'The rules I have set forth above concerning the use of cameras are subject to change if I find that they are too restrictive or not workable, for any reason.'
5
There were nine witnesses for the prosecution and no witnesses for the defense.
6
Arts. 668, 745 and 725, Tex.Code Crim.Proc.
7
Petition for Writ of Certiorari, Question 3, p. 3.
8
'A. (Mr. Hume Cofer, counsel for petitioner). * * * The publicity that was given this trial on the last occasion and the number of cameras here, I think was sufficient to spread the news of this case throughout the county, to every available juror; and it is my opinion that on that occasion, there were so many cameras and so much paraphernalia here that it gave an opportunity for every prospective juror in Smith County to know about this case.
'Q. Not about the facts of the case?
'A. No, sir; not about the facts, nor any of the evidence.'
9
See note 2.
| 01
|
382 U.S. 1
86 S.Ct. 34
15 L.Ed.2d 6
FAIRFAX FAMILY FUND, INC.v.CALIFORNIA.
No. 124.
Appeal from the District Court of Appeal of California, Second Appellate District.
Herman F. Selvin, for appellant.
Thomas C. Lynch, Atty. Gen. of California, Charles E. Corker, Asst. Atty. Gen., and Arthur C. de Goede and H. Warren Siegel, Deputy Attys. Gen., for appellee.
Oct. 11, 1965.
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
Appellant is a Kentucky corporation engaged in a mail-order loan business in thirty-two States. It has no offices, no agents, no employees, and no property in California. It solicits loans from California residents by mail; after a credit report is prepared by a local independent contractor, the loan application is passed on by appellant's officers in Kentucky. If the loan is approved, the check is mailed to the borrower from Kentucky. Because appellant failed to obtain a license from the State of California and pay the annual $200 fee, appellee sought and obtained an injunction barring appellant from conducting its out-of-state small-loan business until the requisite California license was obtained. In order to obtain a license, the lender must display 'the financial responsibility, experience, character, and general fitness * * * such as to command the confidence of the community and to warrant belief that the business will be operated honestly, fairly, and efficiently * * *.' Cal.Fin. Code § 24206.
4
Our decisions have heretofore precluded a State from exacting a license of a firm doing an exclusively interstate business as a condition of entry into the State. See, e. g., Robbins v. Shelby County Taxing District, 120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694; Crutcher v. Kentucky, 141 U.S. 47, 11 S.Ct. 851, 35 L.Ed. 649; Eli Lilly & Co. v. Sav-On-Drugs, 366 U.S. 276, 278-289, 81 S.Ct. 1316, 6 L.Ed.2d 288; see also id., at 288, 289-292, 81 S.Ct. at 1223, 1324 (Douglas, J., dissenting). Appellee would characterize these California statutes as primarily of a regulatory nature, invoking Robertson v. California, 328 U.S. 440, 66 S.Ct. 1160, 90 L.Ed. 1366, in which the majority of the Court held that a State might exclude an interstate insurance company which failed to meet certain minimum reserve requirements designed to assure that the insurer is financially solvent.
5
But here California exacts a $200 annual fee as a condition of obtaining and maintaining a license. As we recognized in Murdock v. Pennsylvania, 319 U.S. 105, 112, 63 S.Ct. 870, 87 L.Ed. 1292: 'The power to tax the exercise of a privilege is the power to control or suppress its enjoyment.' The California District Court of Appeal viewed the fee as one designed to offset the expenses of administering the licensing system itself. From California's characterization of the fee* it is not one to 'defray the cost of purely local regulations 319 U.S., at 114, n. 8, 63 S.Ct. at 875. (Emphasis added.)
6
Because I believe that this case presents substantial and important constitutional questions, I would note probable jurisdiction and set this case down for argument.
*
'The charges or expenses imposed by the licensing procedure are no larger in amount than is reasonably necessary to defray the administrative expenses involved * * *.' People of State of California v. Fairfax Family Fund Inc., 235 Cal.App.2d 881, 884, 47 Cal.Rptr. 812, 814.
| 89
|
382 U.S. 4
86 S.Ct. 24
15 L.Ed.2d 2
WMCA, INC., et al.v.John P. LOMENZO, Secretary of State of New York, et al.
No. 85.
Supreme Court of the United States
October 11, 1965
Leo A. Larkin, Jack B. Weinstein, Leonard B. Sand, Max Gross, Morris Handel and George H. P. Dwight, for appellants.
Louis J. Lefkowitz, Atty. Gen. of New York, Thomas E. Dewey, Leonard Joseph and Malcolm H. Bell, for appellees.
PER CURIAM.
1
The motion to affirm is granted and the judgment is affirmed.
2
Mr. Justice HARLAN, concurring.*
3
The Court today disposes summarily of four New York reapportionment cases; it retains jurisdiction of a fifth, Lomenzo v. WMCA, Inc., No. 81, which raises substantial questions similar to some of those involved in a set of Hawaii reapportionment cases. Burns v. Richardson, 86 S.Ct. 74; Cravalho v. Richardson, 86 S.Ct. 74; and Abe v. Richardson, 86 S.Ct. 74, with respect to which probable jurisdiction has been noted (86 S.Ct. 74). Because these cryptic dispositions risk bewildering the New York legislators and courts, let alone those of other States, I believe it fitting to elucidate my understanding of these dispositions, all of which I join on the premises herein indicated. The need for clarification is particularly desirable because, through dismissal of the appeal in Rockefeller v. Orans, 86 S.Ct. 75, and affirmance in WMCA, Inc. v. Lomenzo, 86 S.Ct. 24, this Court signifies its approval of two decisions concerning the same apportionment plan, one of which 86 S.Ct. 75 found it acceptable and the other of which 86 S.Ct. 24 struck it down.
4
Mr. Justice FORTAS took no part in the consideration or decision of this case.
5
The New York Legislature adopted an apportionment plan, known as 'Plan A,'1 to comply with an order of a three-judge District Court, dated July 27, 1964, requiring the State to enact 'a valid apportionment scheme that is in compliance with the XIV Amendment of the United States Constitution and which shall be implemented to as to effect the election of Members of the Legislature at the election in November, 1965, Members so elected to hold office for a term of one year ending December 31, 1966.'2
6
In WMCA, Inc. v. Lomenzo, D.C., 238 F.Supp. 916, the three-judge court found that Plan A satisfied this order; in so doing it rejected contentions that apportioning on a basis of citizen population violates the Federal Constitution, and that partisan 'gerrymandering' may be subject to federal constitutional attack under the Fourteenth Amendment. In affirming this decision, this Court necessarily affirms these two eminently correct principles.
7
Quite evidently Plan A was seen by the District Court, and is also viewed by this Court, as but a temporary measure. In holding the plan federally acceptable for the purpose of electing a special 1966 Legislature, the District Court explicitly abstained from dealing with challenges to the plan under the State Constitution. Judge Waterman also noted that although Plan A met federal constitutional requirements, 'Of course, the ultimate fitness of the scheme for their needs and purposes is for the people of the State of New York, themselves, to decide, and not for this court to mandate.' 238 F.Supp., at 927.
8
Subsequent to the decision below in WMCA, the New York Court of Appeals held Plan A (as well as Plans B, C, and D) unconstitutional as a matter of state law.3 In now dismissing for lack of a substantial federal question the appeal from that decision (Rockefeller v. Orans, 86 S.Ct. 75) insofar as it may bear upon any apportionment plan effective after the expiration of the 1966 New York Legislature, I take it that the Court is asserting that any final apportionment plan must comport with state as well as federal constitutional requirements.4 So much of the disposition in 86 S.Ct. 75 I join without reservation. In dismissing, without more, the remaining part of that appeal, I take it that the Court is simply reflecting its affirmances in 86 S.Ct. 49 and 86 S.Ct. 90, whereby it puts its stamp of approval on the District Court's use of Plan A, though invalid under the New York Constitution, as a temporary measure. I acquiesce in this aspect of the disposition because of factors to which I advert below.
9
The Court affirms as well two appeals, Travia v. Lomenzo, 86 S.Ct. 49, and Screvane v. Lomenzo, 86 S.Ct. 90, from the District Court's order of May 24, 1965, which specifically ordered a November 1965 special election under Plan A after the New York Court of Appeals had already declared that plan to be in violation of the State Constitution.5 On June 1, 1965, this Court denied a motion to stay the order and to accelerate the appeal, Travia v. Lomenzo, 381 U.S. 431, 85 S.Ct. 1582. In dissent I noted that a federal court order that a state election be held under a plan declared invalid under the State Constitution by the highest court of that State surely presented issues of far-reaching importance for the smooth functioning of our federal system, which were deserving of plenary consideration by this Court. I would have accelerated the appeal, and but for the action of this Court in denying the stay which was sought I would have granted the further application for such a stay that was made to me during the summer. Travia v. Lomenzo, 86 S.Ct. 49, Memorandum of Mr. Justice Harlan, July 16, 1965, 86 S.Ct. 7. I now acquiesce in the affirmance6 as I can see no satisfactory way to heal, at this juncture, the wounds to federal-state relations caused by the District Court's order without inflicting even greater ones.
10
The upshot of what is done today is, then, to suspend New York's 150-member constitutional provision for the one-year duration of the 1966 Legislature, a result to which I subscribe only under the compulsion of what has gone before in this Court.
*
This opinion applies also to Travia et al. v. Lomenzo, 86 S.Ct. 49; Rockefeller, Governor of New York, et al. v. Orans et al., 86 S.Ct. 75; and Screvane et al. v. Lomenzo, 86 S.Ct. 90.
1
New York Laws 1964, c. 976. The New York Legislature passed three successive amendments to c. 976: New York Laws 1964, cc. 977-978 ('Plan B'), c. 979 ('Plan C'), and c. 981 '(Plan D'). The District Court in the same opinion that found Plan A constitutional, WMCA, Inc. v. Lomenzo, D.C., 238 F.Supp. 916, also held that Plans B, C, and D did not meet the requirements of the Fourteenth Amendment, as interpreted in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, and WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418. This Court is retaining jurisdiction in the appeal from those determinations, Lomenzo v. WMCA, Inc., No. 81.
2
Civil No. 61-1559, D.C.S.D.N.Y., 246 F.Supp. 953. The order of the District Court was affirmed summarily by this Court, Hughes v. W.M.C.A., Inc., 379 U.S. 694, 85 S.Ct. 713, 13 L.Ed.2d 698, Mr. Justice Clark and I dissenting.
3
In re Orans, 15 N.Y.2d 339, 258 N.Y.S.2d 825, 206 N.E.2d 854. The Court of Appeals held Plans A, B, C, and D invalid under Art. III, § 2, of the New York Constitution which states, 'The assembly shall consist of one hundred and fifty members.' All four plans provided for larger assemblies: Plan A, 165 assemblymen, c. 976, § 301; Plan B, 180 assemblymen, c. 977, § 301; Plan C, 186 assemblymen (having a total of 165 votes), c. 979, § 301; Plan D, 174 assemblymen (having a total of 150 votes), c. 981, § 301.
4
The Court's dismissal of this part of the appeal in 86 S.Ct. 75 necessarily approves the Court of Appeals' holding that from the standpoint of federal law the 150-member requirement of the New York Constitution was not an integral part of the apportionment scheme invalidated in WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568.
5
The May 24, 1965, order of the District Court was in oral form. A written opinion was handed down on July 13, 1965, D.C., 246 F.Supp. 953, embodying the May order.
6
A decision on the merits by this Court is unavoidable. The appeal from the three-judge District Court is brought here under 28 U.S.C. § 1253 (1964 ed.), and I do not believe this case, or a fortiori any of the other New York reapportionment cases presently before the Court, is moot. Surely if this Court now held that the District Court erred in ordering the election under Plan A, it has the power, for example, to enjoin the November 2 election and to order the District Court to arrange for yet another election and for other appropriate temporary reapportionment relief. The very great difficulties implicit in affording any such relief at this late stage go to the question of its desirability, not to the mootness of the underlying action.
| 12
|
382 U.S. 36
86 S.Ct. 151
15 L.Ed.2d 30
Otis JAMESv.STATE OF LOUISIANA.
No. 23, Misc.
Oct. 18, 1965.
G. Wray Gill, Sr., for petitioner.
Jack P. F. Gremillion, Atty. Gen. of Louisiana, M. E. Culligan, Asst. Atty. Gen., and Jim Garrison, for respondent.
PER CURIAM.
1
The petitioner was convicted by a Louisiana jury of possession of narcotics and was sentenced to imprisonment for 10 years. The Supreme Court of Louisiana set aside the conviction on the ground that it was based upon evidence seized without a warrant during an illegal search. 246 La. 1033, 169 So.2d 89. Upon rehearing, however, that court affirmed the conviction by a divided vote. 246 La. 1053, 169 So.2d 97. We grant the motion to proceed in forma pauperis and the petition for certiorari and reverse the judgment.
2
Police officers arrested the petitioner near the intersection of Camp Street and Jackson Avenue in the City of New Orleans, after he had alighted from an automobile driven by another man. The officers then drove the petitioner to his home, more than two blocks away. They broke open the door and for several hours conducted an intensive search which finally yielded the narcotics equipment and single morphine tablet that constituted the basis of the petitioner's subsequent conviction.
3
The Supreme Court of Louisiana found that the officers had probable cause to arrest the petitioner at the time they apprehended him, and the validity of his arrest is not here in issue. In the circumstances of this case, however, the subsequent search of the petitioner's home cannot be regarded as incident to his arrest on a street corner more than two blocks away. A search 'can be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.' Stoner v. State of California, 376 U.S. 483, 486, 84 S.Ct. 889, 891, 11 L.Ed.2d 856. See also Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777.
4
Under the doctrine of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, see also Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, it was constitutional error to admit the fruits of this illegal search into evidence at the petitioner's trial. Accordingly, the petition for certiorari is granted, the judgment is reversed, and the case is remanded to the Supreme Court of Louisiana for further proceedings not inconsistent with this opinion.
5
It is so ordered.
6
Petition for certiorari granted, judgment reversed, and case remanded for further proceedings.
| 01
|
382 U.S. 32
86 S.Ct. 152
15 L.Ed.2d 26
JONES & LAUGHLIN STEEL CORPORATIONv.GRIDIRON STEEL COMPANY.
No. 123.
Oct. 18, 1965.
Walter J. Blenko, Walter J. Blenko, Jr., and Richard F. Stevens, for petitioner.
Robert J. Fay, for respondent.
PER CURIAM.
1
The petition for writ of certiorari to the Court of Appeals for the Sixth Circuit is granted, and the judgment dismissing petitioner's appeal to that court is reversed. The time limited by 28 U.S.C. § 2107 and Fed.Rule Civ.Proc. 73 for the filing of the notice of appeal from the judgment appealed from was 30 days. However, Fed.Rule Civ.Proc. 6(a), as amended, provides that in computing the period, '(t)he last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.' Since the thirtieth day following entry of the judgment appealed from way Saturday and the notice of appeal was filed the following Monday, we hold that the filing of the notice of appeal was timely. The provision of Rule 6(a) was not made inapplicable by the order of the Court of Appeals directing that the District Court Clerk's offices be open for business on Saturday mornings. The case is remanded to the Court of Appeals for further proceedings consistent with this opinion. It is so ordered.
2
Petition for certiorari granted, judgment dismissing appeal reversed, and case remanded for further proceedings.
| 89
|
382 U.S. 34
86 S.Ct. 157
15 L.Ed.2d 28
FIRST SECURITY NATIONAL BANK & TRUST CO.v.UNITED STATES.
No. 141.
Oct. 18, 1965.
Paul A. Porter and Victor H. Kramer, for appellants.
Solicitor General Cox, Assistant Attorney General Turner and Lionel Kestenbaum, for the United States.
PER CURIAM.
1
In United States v. First National Bank, 376 U.S. 665, 84 S.Ct. 1033, 12 L.Ed.2d 1, this Court held that the merger of First National Bank and Trust Co. of Lexington, Kentucky, with Security Trust Co. of Lexington to form First Security National Bank and Trust Co. violated § 1 of the Sherman Act, 26 Stat. 209, 15 U.S.C. § 1. The Court's judgment remanded the case to the District Court 'for further proceedings in conformity with the opinion of this Court.' Thereafter, on July 1, 1964, the District Court ordered the parties 'to report to the court the progress made in complying with the judgment' of the Supreme Court. On application of the parties, the reporting date was thrice postponed to permit negotiations between First Security and the Government concerning an appropriate plan of divestiture. When, on the final date for reporting, February 16, 1965, the parties jointly presented only a proposed interlocutory decree providing that the detailed plan for divestiture would be submitted within six months, the District Court held First Security, its executive officers and directors in contempt. Although there is some indication that the District Court was dissatisfied with the compliance of the bank with the District Court's order of July 1, 1964, the contempt judgment itself was entered because the delay in submitting a final plan of divestiture was a failure 'to comply with the mandate of the Supreme Court * * *.' The court imposed a fine of $100 per day until the contempt had been purged by 'full compliance with the mandate of the Supreme Court.'
2
The District Judge's interpretation of this Court's judgment was erroneous. We remanded the case for further proceedings in the District Court consistent with this Court's opinion. Neither the opinion nor the judgment of this Court expressly dealt with the matter of remedy and neither ordered divestiture within any particular period of time. Compare United States v. El Paso Natural Gas Co., 376 U.S. 651, 662, 84 S.Ct. 1044, 1050, 12 L.Ed.2d 12 (decided the same day as the prior appeal in this case and directing the District Court to order divestiture without delay). No order of divestiture was entered in the District Court until March 18, 1965, a month after the bank had been held in contempt. The District Court has the authority to require obedience and to punish disobedience of its lawful orders and decrees, 18 U.S.C. § 401, but this record reveals nothing the bank did or failed to do which violated the judgment of this Court. The judgment holding the bank, its executive officers and directors in contempt is reversed.
3
Reversed.
4
Mr. Justice FORTAS took no part in the consideration or decision of this case.
| 01
|
382 U.S. 25
86 S.Ct. 153
15 L.Ed.2d 21
GONDECKv.PAN AMERICAN WORLD AIRWAYS, INC.
No. 919.
Oct. 18, 1965.
Arthur Roth, for petitioner.
Leo M. Alpert, for respondents.
PER CURIAM.
1
Petitioner's husband, Frank J. Gondeck, was killed as a result of a jeep accident on San Salvador Island outside a defense base at which he was employed. The accident took place in the evening as Gondeck and four others were returning from a nearby town. The Deputy Commissioner of the Bureau of Employees' Compensation, United States Department of Labor, awarded death benefits to petitioner in accordance with the terms of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, as amended, 33 U.S.C. § 901 et seq. (1958 ed.), as extended by the Defense Base Act, 55 Stat. 622, as amended, 42 U.S.C. § 1651 et seq. (1958 ed.). In support of the award, the Deputy Commissioner found, among other things, that, although Gondeck had completed his day's work, he was subject to call for emergencies while off duty and was returning from reasonable recreation when the accident occurred. The District Court set aside the Deputy Commissioner's order, and the Court of Appeals for the Fifth Circuit affirmed. United States v. Pan American World Airways, Inc., 299 F.2d 74. The Court of Appeals acknowledged that Gondeck was subject to call, id., at 75, but found no benefit to the employer in Gondeck's trip, and 'no evidence that furnishes a link by which the activity in which Gondeck was engaged was related to his employment.' Id., at 77.
2
On June 11, 1962, we denied certiorari. 370 U.S. 918, 82 S.Ct. 1556, 8 L.Ed.2d 499. On October 8, 1962, we denied a petition for rehearing. 371 U.S. 856, 83 S.Ct. 17, 9 L.Ed.2d 93. We are now apprised, however, of 'intervening circumstances of substantial * * * effect,'* justifying application of the established doctrine that 'the interest in finality of litigation must yield where the interests of justice would make unfair the strict application of our rules.' United States v. Ohio Power Co., 353 U.S. 98, 99, 77 S.Ct. 652, 653, 1 L.Ed.2d 683. Subsequent to our orders in the present case, the Court of Appeals for the Fourth Circuit upheld an award to the survivors of another employee killed in the same accident. Pan American World Airways, Inc. v. O'Hearne, 335 F.2d 70. In upholding the award, the court cited our decision in O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483. In a subsequent case the Court of Appeals for the Fifth Circuit itself expressed doubt whether its decision in the present case had been consistent with Brown-Pacific-Maxon. O'Keeffe v. Pan American World Airways, 338 F.2d 319, 325. The court also noted that, 'The Gondeck case stands alone, except for a per curiam opinion.' Id., at 325. This Court reversed that per curiam judgment last Term, O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359, 85 S.Ct. 1012, 13 L.Ed.2d 895, so that the present case now stands completely alone.
3
In O'Keeffe we made clear that the determinations of the Deputy Commissioner are subject only to limited judicial review, and we reaffirmed the Brown-Pacific-Maxon holding that the Deputy Commissioner need not find a causal relation between the nature of the victim's employment and the accident, nor that the victim was engaged in activity of benefit to the employer at the time of his injury or death. No more is required than that the obligations or conditions of employment create the 'zone of special danger' out of which the injury or death arose. Since the Court of Appeals for the Fifth Circuit misinterpreted the Brown-Pacific-Maxon standard in this case, and since, of those eligible for compensation from the accident, this petitioner stands alone in not receiving it, 'the interests of justice would make unfair the strict application of our rules.' United States v. Ohio Power Co., supra, 353 U.S. at 99, 77 S.Ct. at 653, 1 L.Ed.2d 683.
4
We therefore grant the motion for leave to file the petition for rehearing, grant the petition for rehearing, vacate the order denying certiorari, grant the petition for certiorari, and reverse the judgment of the Court of Appeals.
5
It is so ordered.
6
Judgment of Court of Appeals reversed.
7
Mr. Justice FORTAS took no part in the consideration or decision of this case.
8
Mr. Justice CLARK, joining in the judgment.
9
I fully agree with my Brother HARLAN 'that litigation must at some point come to an end' and 'that this decision holds seeds of mischief for the future orderly administration of justice * * *.' But with Cahill v. New York, N.H. & H.R. Co., 351 U.S. 183, 76 S.Ct. 758, 100 L.Ed. 1075 (1956), on our books, no other conclusion can be reached.
10
Up until Cahill I thought that successive petitions for rehearing would not be received by the Court under its Rule 58(4).1 This rule took the place of the old 'end of Term' rule of Bronson v. Schulten, 104 U.S. 410, 415, 26 L.Ed. 797 (1882), abolished by the Congress in 1948, 28 U.S.C. § 452 (1958 ed.). Indeed, I doubted that the Court had the power to grant a successive petition for rehearing under a factual situation, as here, where a petition for certiorari had been denied over three years ago, 370 U.S. 918, 82 S.Ct. 1556, 8 L.Ed.2d 499 (1962); a petition for rehearing had been denied, 371 U.S. 856, 83 S.Ct. 17, 19 L.Ed.2d 93 (1962); the mandate had issued more than three years before; and where petitioner had, about the same date, cancelled her appeal bond and been discharged of all liability thereunder. In Cahill, however, the Court through the device of a 'motion to recall and amend the judgment' permitted a successive petition not only to be received but granted, despite the fact that the judgment thereby reopened had been previously paid.2 This paved the way for the grant of a successive petition for rehearing in United States v. Ohio Power Co., 353 U.S. 98, 77 S.Ct. 652, 1 L.Ed.2d 683 (1957), to make its judgment conform with this Court's decision that same Term in United States v. Allen-Bradley Co., 352 U.S. 306, 77 S.Ct. 343, 1 L.Ed.2d 347 (1957), a companion case of Ohio Power in the Court of Claims.
11
The vice, of course, is the granting of successive petitions for rehearing in violation of Rule 58(4), which was done for the first time in Cahill. It makes no difference that the rejection of finality be to correct alleged errors of our own or those below. Nor does it matter that the errors be corrected in the same Term, as in Cahill, or four Terms later, as here. In each instance the action violates Rule 58(4) and that is the basis of my position.
12
I, too, as my Brother Harlan said in Ohio Power, 'can think of nothing more unsettling to lawyers and litigants, and more disturbing to their confidence in the evenhandedness of the Court's processes, than to be left in * * * uncertainty * * * as to when their cases may be considered finally closed in this Court.' At p. 111 of 353 U.S., at page 659 of 77 S.Ct. (dissenting opinion). However, Cahill opened up this practice. It may be that Ohio Power and the present case are more objectionable of their facts, but they merely condone Cahill's original vice. Until we can gain the vote of the majority to the contrary we are stuck with the practice. The outlook for this appears dim. We can only hope that this rule of 'no finality,' which the Court varnishes with the charms of reason, will be sparingly used, or overruled by Congress, as was the 'end of Term' rule. I, therefore, join in the judgment of the Court.
13
Mr. Justice HARLAN, dissenting.
14
The result reached in this case has been achieved at the expense of the sound legal principle that litigation must at some point come to an end.
15
I can find nothing in the train of events on which the Court relies in overturning this more than three-year-old final judgment that justifies bringing into play the dubious doctrine of United States v. Ohio Power Co., 353 U.S. 98, 77 S.Ct. 652, 1 L.Ed.2d 683, a case which was decided by a closely divided vote of less than a full bench,1 which deviated from long-established practices of this Court,2 and which, so far as I can find, has had no sequel in subsequent decisions of the Court.3
16
The judgment against this petitioner became final as long ago as June 11, 1962. 370 U.S. 918, 82 S.Ct. 1556, 8 L.Ed.2d 499. The Court refused to reconsider it four months later when it denied rehearing on October 8, 1962. 371 U.S. 856, 83 S.Ct. 17, 9 L.Ed.2d 93. When some two years later, July 13, 1964, the Court of Appeals for the Fourth Circuit upheld a compensation award with respect to a co-employee of Gondeck killed in the same accident, Pan American World Airways, Inc. v. O'Hearne, 335 F.2d 70, petitioner did not even seek to file another petition for rehearing here. A few months later the Fifth Circuit might be thought to have indicated some doubt about its earlier decision in the Gondeck case, O'Keeffe v. Pan American World Airways, Inc., 5 Cir., 338 F.2d 319, 325, but again no attempt was made to file a further petition for rehearing here in Gondeck.
17
It was this Court's decision of last Term in O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359, 85 S.Ct. 1012, 13 L.Ed.2d 895, which itself was a debatable innovation in this area of the law,4 that triggered the undoing of this judgment of four Terms ago. It should be noted that the subject matter in O'Keeffe v. Pan American World Airways, Inc., was an entirely different accident from the one in which petitioner's decedent was involved.
18
This, then, is hardly one of those rare cases in which "the interest in finality of litigation must yield" because "the interests of justice would make unfair the strict application of our rules," ante, pp. 26-27. On the contrary, the situation is one in which the prevailing party in this litigation had every reason to count on the judgment in its favor remaining firm. Believing that this decision holds seeds of mischief for the future orderly administration of justice, I respectfully dissent.
*
U.S. Supreme Ct. Rule 58(2).
1
'Consecutive petitions for rehearings, and petitions for rehearing that are out of time under this rule, will not be received.'
2
Mr. Justice Black, joined by The Chief Justice, Mr. Justice Douglas and myself, dissented.
1
The vote was 4 to 3, Mr. Justice Brennan and Mr. Justice Whittaker, since retired, not participating. 353 U.S., at 99, 77 S.Ct. at 652.
2
See dissenting opinion of Harlan, J., 353 U.S., at 99, 77 S.Ct. at 652.
3
My Brother CLARK's citation of Cahill v. New York, N.H. & H.R. Co., 351 U.S. 183, 76 S.Ct. 758, 100 L.Ed.2d 1075 ante, p. 28 for the proposition that this petition for rehearing must be granted is inapposite. Cahill was an FELA case in which this Court reversed summarily a judgment of the Court of Appeals overturning a district court judgment for the plaintiff, 350 U.S. 898, 76 S.Ct. 180, 100 L.Ed. 790. Later that same Term, after a petition for rehearing had been denied, 350 U.S. 943, 76 S.Ct. 300, 100 L.Ed. 823, the Court was persuaded on 'a motion to recall and amend the judgment' that its mandate, which simply reinstated the District Court's judgment, was incorrect and that the case should properly have been remanded to the Court of Appeals for further proceedings. It is difficult for me to see how the correction during the same Term of our own error in Cahill can be thought to compel or justify a general 'rule of 'no finality" (as my Brother CLARK puts it, ante, p. 29) which requires the granting of a second petition for rehearing three years after the first one was denied in a case which this Court never heard.
4
The case was decided without argument by a substantially divided Court, 380 U.S. 359, 85 S.Ct. 1012, 13 L.Ed.2d 895. See dissenting opinion of Harlan, J., joined by Clark and White, JJ., 380 U.S., at 365, 85 S.Ct. at 1016. See also separate opinion of Douglas, J., 380 U.S., at 371, 85 S.Ct. at 1019.
| 78
|
382 U.S. 54
86 S.Ct. 203
15 L.Ed.2d 134
Marc D. LEH, etc., et al., Petitioners,v.GENERAL PETROLEUM CORPORATION et al.
No. 4.
Argued Oct. 11, 1965.
Decided Nov. 8, 1965.
Rehearing Denied Jan. 17, 1966.
See 382 U.S. 1001, 86 S.Ct. 525.
Richard G. Harris, Los Angeles, Cal., for petitioner.
Francis R. Kirkham, San Francisco, Cal., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
On September 28, 1956, petitioners, a partnership engaged in wholesale distribution of refined petroleum products and one of the partners, filed in the Southern District of California a trebledamage action charging violations of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2 (1964 ed.), against seven companies engaged in producing, refining, and marketing gasoline and other hydrocarbon substances in interstate commerce. Defendants contended that the action was barred by the California one-year statute of limitations applicable to suits for statutory penalties or forfeitures, Cal.Code Civ.Proc. § 340(1). Plaintiffs conceded that their cause of action accrued no later than February 1954, and that the four-year limitation provision added to the Clayton Act in 1955, Clayton Act § 4B, 69 Stat. 283, 15 U.S.C. § 15b (1964 ed.), was not applicable to a right of action accruing in 1954. But plaintiffs contended that the governing provision was the California three-year statute of limitations respecting actions on a statutory liability other than a penalty, Cal.Code Civ.Proc. § 338(1), and that in any event the running of the statute of limitations was tolled by § 5(b) of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § 16(b) (1964 ed.), because of a civil antitrust proceeding that was commenced by the United States in 1950 and was still pending when plaintiffs filed their complaint. Section 5(b) provides that during the pendency of a civil or criminal proceeding instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, the running of the statute of limitations shall be suspended in respect of every private right of action 'based in whole or in part on any matter complained of in said proceeding.'1 The lower courts upheld the defense of limitations and dismissed the complaint, holding that the one-year statute governed and that plaintiffs were not entitled to the benefit of § 5(b), 208 F.Supp. 289 (D.C.S.D.Cal.1962), aff'd, 330 F.2d 288 (C.A.9th Cir. 1964). We granted certiorari limited to the question of the applicability of § 5(b), 379 U.S. 877, 85 S.Ct. 148, 13 L.Ed.2d 85, because of an apparent conflict between this case and Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561 (C.A.10th Cir. 1962), dismissed under Rule 60 sub nom. Wade v. Union Carbide & Carbon Corp., 371 U.S. 801, 83 S.Ct. 13, 9 L.Ed.2d 46, concerning interpretation of the statutory requirement that the private action for which the benefit of the tolling provision is sought be 'based in whole or in part on any matter complained of' in the government proceeding. We conclude that the lower courts misapplied § 5(b), and we reverse the judgment below.
2
Prior to the present case, the Court of Appeals for the Ninth Circuit had declared a restrictive interpretation of § 5(b). In Steiner v. 20th Century-Fox Film Corp., 232 F.2d 190 (1956), that court ruled that the scope of § 5(b) was determined by the principles of collateral estoppel applicable under § 5(a) of the Clayton Act, as amended, 69 Stat. 283, 15 U.S.C. § 16(a) (1964 ed.), which provides that a final judgment or decree rendered in a suit by the United States and holding a defendant in violation of the antitrust laws shall be prima facie evidence in a private antitrust action against such defendant 'as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto.'2 Accordingly, the court declared in Steiner that '(a) greater similarity is needed than that the same conspiracies are alleged. The same means must be used to achieve the same objectives of the same conspiracies by the same defendants.' 232 F.2d, at 196. In the present case the Court of Appeals purported to follow Steiner and concluded that the running of the statute of limitations was not suspended because here, in the court's opinion, 'there were not only different overt acts charged, but different conspiracies, occurring at different times, between different parties.' 330 F.2d, at 301; see also 208 F.Supp., at 294—295. Conflicting with Steiner and the present case is Union Carbide & Carbon Corp. v. Nisley, supra, which held that the evidentiary rules of estoppel are not determinative and that the running of the period of limitations is tolled by § 5(b) if there is 'substantial identity of subject matter.' 300 F.2d, at 570.
3
Minnesota Mining & Mfg. Co. v. New Jersey Wood Finishing Co., 381 U.S. 311, 85 S.Ct. 1473, 14 L.Ed.2d 405, which was decided in the interim between the granting of certiorari and oral argument in the present case, establishes certain basic principles for the construction of § 5(b) that are to be followed here. The questions presented for decision in Minnesota Mining were whether proceedings by the Federal Trade Commission under § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § 18 (1964 ed.), activate § 5(b) to the same extent as judicial proceedings and, if so, whether the claim of New Jersey Wood, the private plaintiff, was based on 'any matter complained of' in the Commission action. One of the arguments advanced with respect to the first question was that Commission proceedings did not suspend the running of limitations because, it was asserted, any Commission order that might issue would not be admissible under § 5(a). We rejected this contention that § 5(a) and § 5(b) were coextensive.
4
'It may be * * * that when it was enacted the tolling provision was a logical backstop for the prima facie evidence clause of § 5(a). But even though § 5(b) complements § 5(a) in this respect by permitting a litigant to await the outcome of government proceedings and use any judgment or decree rendered therein * * * it is certainly not restricted to that effect. As we have pointed out, the textual distinctions as well as the policy basis of § 5(b) indicate that it was to serve a more comprehensive function in the congressional scheme of things. The Government's initial action may aid the private litigant in a number of other ways. The pleadings, transcripts of testimony, exhibits and documents are available to him in most instances. * * * Moreover, difficult questions of law may be tested and definitively resolved before the private litigant enters the fray. The greater resources and expertise of the Commission and its staff render the private suitor a tremendous benefit aside from any value he may derive from a judgment or decree. Indeed, so useful is this service that government proceedings are recognized as a major source of evidence for private parties.' 381 U.S., at 319, 85 S.Ct., at 1477.
5
Minnesota Mining sweeps away much of the foundation for the Steiner view of the scope of § 5(b). The private plaintiff is not required to allege that the same means were used to achieve the same objectives of the same conspiracies by the same defendants. Rather, effect must be given to the broad terms of the statute itself—'based in whole or in part on any matter complained of' (emphasis added)—read in light of Congress' 'belief that private antitrust litigation is one of the surest weapons for effective enforcement of the antitrust laws.' 381 U.S., at 318, 85 S.Ct., at 1477. Doubtlessly, care must be exercised to insure that reliance upon the government proceeding is not mere sham and that the matters complained of in the government suit bear a real relation to the private plaintiff's claim for relief. But the courts must not allow a legitimate concern that invocation of § 5(b) be made in good faith to lead them into a niggardly construction of the statutory language here in question. With those matters in mind we now turn to a comparison of plaintiffs' complaint with the complaint in the government proceeding on which plaintiffs rely, United States v. Standard Oil Co. of California, Civil No. 11584 C, D.C.S.D.Cal.3
6
The complaint of the United States charged that seven petroleum companies and the Conservation Committee of California Oil Producers had conspired together to restrain and to monopolize interstate commerce in the Pacific States area in violation of §§ 1 and 2 of the Sherman Act, beginning in or about the year 1936, and continuing up to and including the date suit was filed in 1950. The complaint divided the conspiracy into two principal branches: (1) agreement by the defendants to eliminate competition among themselves in the Pacific States area and (2) agreement by the defendants to utilize their control of the production, transportation, refining, and marketing of crude oil and refined petroleum products to restrict and to eliminate the competition of independent producers, refiners and marketers in the Pacific States area. In furtherance of the first branch of the conspiracy, the compalint further charged, defendants had conspired to do and had actually accomplished the following things, among others: sharing wholesale and retail markets with each other by selling gasoline and other refined petroleum products at identical prices, thus confining effective competition among themselves to the advertising of brand names and to the offering of free services in their retail outlets; fixing and maintaining uniform and noncompetitive prices for the sale of gasoline and other refined petroleum products at wholesale and at retail; refusing to sell their petroleum products to any wholesale or retail distributor who failed or refused to follow the prices fixed by them; and refusing to sell their petroleum products to any wholesale distributor, jobber, or retail dealer except on a 'full-requirements' or 'exclusive-dealer' basis. Among acts and agreements charged as having been accomplished in furtherance of the second branch of the conspiracy were the following: coercing independent producers into limiting production of crude oil through production quotas established by the defendant Conservation Committee; limiting the supply of crude oil available to independent refiners and refusing to sell crude oil to such refiners; acquiring control of independent refiners; inducing independent refiners to shut down their productive capacity or to dismantle their refining facilities in return for an agreement to furnish such independent refiners with their full requirements of gasoline and other refined petroleum products; foreclosing independent wholesale and retail markets otherwise available to the independent refiners by requiring independent jobbers, wholesalers, and retailers to handle exclusively the refined petroleum products of defendants.
7
Plaintiffs' amended complaint in the present case also charged a conspiracy to violate §§ 1 and 2 of the Sherman Act. The period of the conspiracy of which plaintiffs complained varied somewhat from that charged in the government action, plaintiffs alleging that the conspiracy herein commenced in or about the year 1948 (the year in which plaintiffs commenced business) and continued until the date of the filing of the complaint in 1956. The defendants were the same as those in the government proceeding, except that Shell Oil Company and the Conservation Committee of California Oil Producers were named as defendants in the government suit and were not defendants here, and Olympic Oil Company was named as a defendant here and was not a defendant in the government proceeding.4 The complaint charged that defendants had agreed to restrain and to monopolize the wholesale and retail distribution of refined gasoline throughout the southern California area by excluding independent jobbers from such distribution and by eliminating the jobbers' customers, i.e., retail outlets, and preventing those customers from competing with retail outlets owned and operated by defendants. In particular, defendants were alleged to have accomplished their unlawful purposes by the following acts: controlling the sale and distribution of refined gasoline in the southern California area; denying independent jobbers access to a source of supply of refined gasoline; preventing independent jobbers from obtaining refined gasoline from other sources; preventing the customers of independent jobbers from obtaining gasoline with which to compete with retail service stations and outlets operated or controlled by defendants; maintaining fixed, artificial, and noncompetitive prices for the wholesale and retail sale of refined gasoline in the southern California area and fixing the price at which gasoline would be sold, if at all, to independent dealers and jobbers; and generally controlling the sources of refined gasoline in the southern California area and preventing and precluding independent jobbers from obtaining a source of supply. Plaintiffs claimed injury to their independent jobber business through a loss of profits resulting from price-fixing and from the destruction of their business because of the termination of their source of supply.
8
The lower courts found that plaintiffs' complaint was not based in whole or in part on any matter complained of in the government proceeding principally because of the differences in the defendants named in the two suits and in the period of the conspiracies alleged. See 330 F.2d, at 301; 208 F.Supp., at 294 295. We cannot agree that these differences bar resort to the tolling provision in this case.
9
Here too we may find guidance in Minnesota Mining. In that case, the plaintiff, a manufacturer of electrical insulation materials, brought suit against Minnesota Mining and Manufacturing Company and the Essex Wire Corporation, the complaint alleging violations of § 7 of the Clayton Act and §§ 1 and 2 of the Sherman Act. The substance of the complaint concerned the acquisition by Minnesota Mining from Essex of Insulation and Wires, Inc., which thereafter ceased to distribute plaintiff's products, and an alleged conspiracy between Minnesota Mining and Essex to restrain trade in electrical insulation products. The action upon which plaintiff relied as suspending the running of limitations was a Federal Trade Commission proceeding under § 7 against Minnesota Mining but not against Essex. Essex was not a party to the interlocutory appeal in the private action and no contention was made here that the difference in parties prevented tolling of limitations as to Minnesota Mining. Minnesota Mining did argue that because of the greater burden of proof under the Sherman Act, plaintiff's Sherman Act claims could not be held to be based in part on any matter complained of in the Clayton Act proceeding before the Commission. This Court found that 'both suits set up substantially the same claims,' 381 U.S., at 323, 85 S.Ct., at 1479, and rejected Minnesota Mining's argument.
10
Just as in Minnesota Mining the differences between Sherman Act and Clayton Act proceedings were held not to require the conclusion that the private action under the Sherman Act was not based in part on any matter complained of in the Government's § 7 suit, so here we cannot conclude that a private claimant may invoke § 5(b) only if the conspiracy of which he complains has the same breadth and scope in time and participants as the conspiracy described in the government action on which he relies. Here there is substantial identity of parties, six of the seven defendants in this case being defendants in the government suit as well. In suits of this kind, the absence of complete identity of defendants may be explained on several grounds unrelated to the question of whether the private claimant's suit is based on matters of which the Government complained. In the interim between the filing of the two actions it may have become apparent that a party named as a defendant by the Government was in fact not a party to the antitrust violation alleged. Or the private plaintiff may prefer to limit his suit to the defendants named by the Government whose activities contributed most directly to the injury of which he complains. On the other hand, some of the conspirators whose activities injured the private claimant may have been too low in the conspiracy to be selected as named defendants or co-conspirators in the Government's necessarily broader net. The overlap in the time periods of the two conspiracies is less complete, but this disparity is equally without significance. That plaintiffs alleged a conspiracy corresponding in time to the period during which they were in business obviously does not mean that this conspiracy is not based in part on matters complained of by the Government. Nor can that conclusion be drawn from the fact that plaintiffs focus on the southern California area, which is only a part of the Pacific States area with which the Government was concerned.
11
It is obvious from a comparison of the two complaints that plaintiffs' suit is based in part on matters of which the Government complained. The Government charged that defendants had conspired to eliminate the competition of independent marketers; plaintiffs charged a conspiracy to eliminate independent jobbers and retailers. Both the plaintiffs and the Government alleged that defendants had fixed prices at wholesale and at retail. The Government alleged that defendants had conspired to eliminate the competition of independent refiners by acquiring such refiners, limiting the supply of crude oil available to them, and inducing them to shut down their refining facilities; plaintiffs complained that defendants had denied them a source of supply and prevented them from obtaining gasoline from other sources. To require more detailed duplication of claims would be to resurrect the collateral estoppel approach declared in Steiner and rejected by this Court in Minnesota Mining.
12
Defendants contend, however, that during the extensive discovery proceedings that preceded the ruling on the motion to dismiss, plaintiffs made certain concessions establishing that, whatever the complaint may allege, plaintiffs' claim in fact is not based at all on any matter complained of by the Government in Standard Oil. Plaintiffs' real claim, defendants say, is that they had an arrangement with Olympic Refining Company under which they were to be supplied with gasoline as long as Olympic was in turn supplied by defendant General Petroleum Corporation, that defendant Standard Oil Company of California replaced General Petroleum Corporation as Olympic's supplier in February 1954, and that plaintiffs' supply was thereby terminated. The attorney for plaintiffs stated in a hearing before the trial court that General Petroleum Corporation had the absolute right to terminate its supply to Olympic at any time and that if General had in this case done so unilaterally plaintiffs would not be in court. But plaintiffs contended that defendants conspired together to effect the termination of General's supplier relationship with Olympic. Defendants argue that this conspiracy to terminate a particular supply contract is far removed from the matters with which the government complaint was concerned.
13
In general, consideration of the applicability of § 5(b) must be limited to a comparison of the two complaints on their face. Obviously suspension of the running of the statute of limitations pending resolution of the government action may not be made to turn on whether the United States is successful in proving the allegations of its complaint. Minnesota Mining & Mfg. Co. v. New Jersey Wood Finishing Co., 381 U.S. 311, 316, 85 S.Ct. 1473, 1476. Equally, the availability of § 5(b) to the private claimant may not be made dependent on his ability to prove his case, however fatal failure may prove to his hopes of success on the merits.
14
Moreover, defendants' argument contains a basic flaw in that it does not take account of all that plaintiffs' counsel said. The relationship between plaintiffs and General was one of subdistributorship, and there were accordingly two levels in the chain of distribution between General and the ultimate retail outlet. Plaintiffs claimed, counsel said, that pressure was exerted to terminate the relationship between General and Olympic, and thereby between Olympic and plaintiffs, as the result of an industry commitment to do away with sub-distributorship operations 'because the sub-distributorship could not be controlled. the gasoline could be controlled, obviously, when General Petroleum sold it directly at retail. The gasoline could be controlled if you had a good company as opposed to a bad company, which was acting as a distributor. But the gasoline could not be controlled when it went to the sub-distributorship level.' Clearly this is a claim that in order to obtain and to maintain control of distribution and retail marketing, including the control and fixing of uniform wholesale and retail prices of which the government action complained, defendants agreed to tighten control of the chain of distribution through elimination of independent jobbers acting as subdistributors. Counsel's statements simply filled out the details of the general allegations of the complaint.
15
As we have concluded that the running of the statute of limitations was suspended, the judgment must be
16
Reversed.
17
Mr. Justice HARLAN and Mr. Justice FORTAS took no part in the consideration or decision of this case.
1
Section 5(b), 15 U.S.C. § 16(b) provides:
'(b) Whenever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, but not including an action under section 15a of this title, the running of the statute of limitations in respect of every private right of action arising under said laws and based in whole or in part on any matter complained of in said proceeding shall be suspended during the pendency thereof and for one year thereafter: Provided, however, That whenever the running of the statute of limitations in respect of a cause of action arising under section 15 of this title is suspended hereunder, any action to enforce such cause of action shall be forever barred unless commenced either within the period of suspension or within four years after the cause of action accrued.'
2
Section 5(a), 15 U.S.C. § 16(a) provides:
'(a) A final judgment or decree heretofore or hereafter rendered in any civil or criminal proceeding brought by or on behalf of the United States under the antitrust laws to the effect that a defendant has violated said laws shall be prima facie evidence against such defendant in any action or proceeding brought by any other party against such defendant under said laws or by the United States under section 15a of this title, as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto: Provided, That this section shall not apply to consent judgments or decrees entered before any testimony has been taken or to judgments or decrees entered in actions under section 15a of this title.'
See generally Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534.
3
The case has since been terminated by consent judgments entered into by all defendants except the Conservation Committee of California Oil Producers and Texaco, Inc., as to each of which the case was dismissed. See 1958 CCH Trade Cases, 69,212; 1959 CCH Trade Cases, 69,240; 1959 CCH Trade Cases, 69,399.
4
Olympic was dismissed from the case prior to the ruling on defendants' statute of limitations defense.
| 78
|
382 U.S. 46
86 S.Ct. 219
15 L.Ed.2d 128
FEDERAL TRADE COMMISSION, Petitioner,v.MARY CARTER PAINT CO. et al.
No. 15.
Argued Oct. 12, 1965.
Decided Nov. 8, 1965.
Nathan Lewin, Washington, D.C., for petitioner.
David W. Peck, New York City, for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Respondent Mary Carter Paint Company1 manufactures and sells paint and related products. The Federal Trade Commission ordered respondent to cease and desist from the use of certain representations found by the Commission to be deceptive and in violation of § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 52 Stat. 111, 15 U.S.C. § 45 (1964 ed.). 60 F.T.C. 1830, 1845. The representations appeared in advertisements which stated in various ways that for every can of respondent's paint purchased by a buyer, the respondent would give the buyer a 'free' can of equal quality and quantity. The Court of Appeals for the Fifth Circuit set aside the Commission's order. 333 F.2d 654. We granted certiorari, 379 U.S. 957, 85 S.Ct. 661, 13 L.Ed.2d 553. We reverse.
2
Although there is some ambiguity in the Commission's opinion, we cannot say that its holding constituted a departure from Commission policy regarding the use of the commercially exploitable word 'free.' Initial efforts to define the term in decisions2 were followed by 'Guides Against Deceptive Pricing.'3 These informed businessmen that they might advertise an article as 'free,' even though purchase of another article was required, so long as the terms of the offer were clearly stated, the price of the article required to be purchased was not increased, and its quality and quantity were not diminished. With specific reference to two-for-the-price-of-one offers, the Guides required that either the sales price for the two be 'the advertiser's usual and customary retail price for the single article in the recent, regular course of his business,' or where the advertiser has not previously sold the article, the price for two be the 'usual and customary' price for one in the relevant trade areas. These, of course, were guides, not fixed rules as such, and were designed to inform businessmen of the factors which would guide Commission decision. Although Mary Carter seems to have attempted to tailor its offer to come within their terms, the Commission found that it failed; the offer complied in appearance only.
3
The gist of the Commission's reasoning is in the hearing examiner's finding, which it adopted, that
4
'the usual and customary retail price of each can of Mary Carter paint was not, and is not now, the price designated in the advertisement ($6.98) but was, and is now, substantially less than such price. The second can of paint was not, and is not now, 'free,' that is, was not, and is not now, given as a gift or gratuity. The offer is, on the contrary, an offer of two cans of paint for the price advertised as or purporting to be the list price or customary and usual price of one can.' 60 F.T.C., at 1844.
5
In sum, the Commission found that Mary Carter had no history of selling single cans of paint; it was marketing twins, and in allocating what is in fact the price of two cans to one can, yet calling one 'free,' Mary Carter misrepresented. It is true that respondent was not permitted to show that the quality of its paint matched those paints which usually and customarily sell in the $6.98 range, or that purchasers of paint estimate quality by the price they are charged. If both claims were established, it is arguable that any deception was limited to a representation that Mary Carter has a usual and customary price for single cans of paint, when it has no such price. However, it is not for courts to say whether this violates the Act. '(T)he Commission is often in a better position than are courts to determine when a practice is 'deceptive' within the meaning of the Act.' Federal Trade Comm'n v. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 1043, 13 L.Ed.2d 904. There was substantial evidence in the record to support the Commission's finding; its determination that the practice here was deceptive was neither arbitrary nor clearly wrong. The Court of Appeals should have sustained it. Federal Trade Comm'n v. Colgate-Palmolive Co., supra; Carter Products, Inc. v. Federal Trade Comm'n, 5 Cir., 323 F.2d 523, 528.
6
The Commission advises us in its brief that it believes it would be appropriate here 'to remand the case to it for clarification of its order.' The judgment of the Court of Appeals is therefore reversed and the case is remanded to that court with directions to remand to the Commission for clarification of its order.
7
It is so ordered.
8
Judgment of Court of Appeals reversed and case remanded to the Commission.
9
Mr. JUSTICE STEWART took no part in the decision of this case.
10
Mr. Justice HARLAN, dissenting.
11
In my opinion the basis for the Commission's action is too opaque to justify an upholding of its order in this case. A summary discussion of the facts and Commission proceedings will suffice to show why I cannot subscribe to the majority's disposition.
12
Since 1951 the enterprise now known as Mary Carter Paint Company has been manufacturing paint products for direct distribution through its own outlets and franchised dealers. For most or all of this period, its practice has been to establish its prices on a per-can basis but to give each customer a second can without further charge for each can purchased. Mary Carter's advertisements, while disclosing that the first can of each pair must be bought at the listed price, have always described the second can as 'free'; typical slogans are: 'Buy one get one free' and 'Every second can free.' It is this advertising which the Commission now condemns as unfair and deceptive under § 5 of the Federal Trade Commission Act, as amended, 52 Stat. 111, 15 U.S.C.A. § 45 (1964 ed.).
13
To the extent that the Commission's order may rest on the proposition that the second can is not 'free' because its receipt is 'tied' to the purchase of the first can, it is manifestly inconsistent with the rules governing use of the word 'free' maintained by the Commission for over a decade. No one suggests that the additional can of Mary Carter paint is free in the sense that no conditions are attached to its receipt, but the FTC forsook this commercially unrealistic definition in 1953. In that year, first by its decision in Walter J. Black, Inc., 50 F.T.C. 225, and then a general policy statement, 4 CCH Trade Reg.Rep. 40,210, it sanctioned use of the word 'free' to describe an item given without extra charge on condition of another purchase so long as the condition was plainly stated and the 'tying' product was not increased in price for the occasion or decreased in quantity or quality. The FTC prefaced these rules in Black by saying that '(t)he businessmen of the United States are entitled to a clear and unequivocal answer' and it represented that its new position would be maintained until either Congress or the courts decided otherwise. 50 F.T.C., at 232, 235.
14
There is presently no charge by the Commission that Mary Carter failed to comply with this general statement which continued in force through the proceedings and decision affecting Mary Carter. Rather, for the greater period of its advertising operations Mary Carter could properly claim to have relied on the FTC's official pronouncement while it was establishing its 'every second can free' slogan in the public mind, an investment now seemingly lost. Without inflexibly holding the Commission to its promise and avowed position, certainly solid justification should be demanded before the courts agree that this departure is not 'arbitrary, capricious, (or) an abuse of discretion.' Administrative Procedure Act, § 10(e), 60 Stat. 243, 5 U.S.C. § 1009(e) (1964 ed.).
15
At the very least the Commission should be required to demonstrate real deception and public injury in a decision that allows the courts to evaluate its reasoning and businessmen to comply with assurance with its latest views; these standards are not met by the FTC's opinion in this case. The Department of Justice suggests that the FTC regards the advertisements as implying that Mary Carter regularly sells its paint for the present per-can price without giving an extra can free;1 from this premise, it might be argued, the buyer may then conclude that each can of Mary Carter is the equal of similarly priced rivals with whom it has regularly competed on equal terms in the past, making the present 'free' can offer appear an excellent bargain. But the advertising in the present case does not really suggest that the 'free' can is a departure from Mary Carter's usual pricing policy. Certainly nothing in any of the publicity states that the extra can is a 'new' bargain or asserts that the opportunity may lapse in the near future. To the contrary, a number of Mary Carter advertisements, not separately treated by the Commission, affirmatively suggest that the extra-can offer has been and will continue to be the sales policy. Far from trying to imply that its extra-can offer represents a temporary saving for the customer, Mary Carter has striven over a number of years to associate itself irrevocably in the public mind with the notion that every second can is free; the catchphrase appears in one form or another in nearly all the ads before us and is even imprinted on the top of Mary Carter paint cans. Finally, it is not without irony that the Commission, presumably seeking to protect the consumer from any unfounded ultimate conclusions that a can of Mary Carter is as good as its high-priced rivals, rejected an offer of proof from the company that a single can of Mary Carter is scientifically equal or superior to the leading paints that sell at the same per-can price level without giving bonus cans. Actually, there is no suggestion that any volume of consumer complaints has been received, which further deepens the mystery why this frail proceeding was ever initiated.2
16
The temptation to gloss over the analytical failings of the rationale now asserted for the FTC by relying on agency exertise must be short-lived in this case. Any findings by the FTC as to what the public may conclude from particular phrasings are most inexplicit, no distinction is taken between the various ads in question, and the conduct proscribed is never sharply identified. Surely there can be no resort to uninvoked expertise to buttress an unarticulated theory.
17
The opaqueness of the Commission's opinion and order makes their approval difficult for yet other reasons. The bite of the FTC decision is in its order, which even the Commission recognizes to be unclear; how the Commission order can be upheld before this Court is told what exactly it means is indeed a puzzling question. Additionally, by failing to spell out its rationale the FTC decision breeds the suspicion that it is not merely ad hoc3 but quite possibly irreconcilable with the Black case seemingly reaffirmed by the Commission in this very proceeding. If the Commission is able to write an opinion and order that can cure these defects and draw the plain distinctions necessary to assure fair warning and equal treatment for other advertisers, it has not done so yet.
18
In administering § 5 in the context of the many elusive questions raised by modern advertising, it is the duty of the Commission to speak and rule clearly so that law-abiding businessmen may know where they stand. In proscribing a practice uncomplained of by the public, effectively harmless to the consumer, allowed by the Commission's long-established policy statement, and only a hairbreadth away from advertising practices that the Commission will continue to permit, I think that the Commission in this instance has fallen far short of what is necessary to entitle its order to enforcement.
19
For these reasons I would not disturb the judgment of the Court of Appeals setting aside the Commission's order.
1
Hereinafter Mary Carter or respondent.
2
Book-of-the-Month Club, Inc., 48 F.T.C. 1297 (1952); Walter J. Black, Inc., 50 F.T.C. 225 (1953); Puro Co., 50 F.T.C. 454 (1953); Book-of-the-Month Club, Inc., 50 F.T.C. 778 (1954); Ray S. Kalwajtys, 52 F.T.C. 721, enforced Kalwajtys v. F.T.C., 237 F.2d 654 (1956).
3
Guides Against Deceptive Pricing, Guide V, adopted October 2, 1958, 23 Fed.Reg. 7965; see also policy statement, December 3, 1953, 4 CCH Trade Reg.Rep. 40,210. For the current guide, Guide IV, effective January 8, 1964, see 29 Fed.Reg. 180.
1
Such an implication might be thought to run counter to the spirit of the now-superseded Guide V, Guides Against Deceptive Pricing, 23 Fed.Reg. 7965 (1958), requiring that the sales price for two articles in a two-for-the-price-of-one sale must be the usual and customary price for one. Mary Carter can, of course, reasonably claim to have complied with the letter of Guide V; assuming that it is making a two-for-the-price-of-one offer in substance, the advertised sum is the usual and customary price which a purchaser has to pay in order to acquire a single can. There is evidence that on at least a few occasions customers took only one can, paying the advertised per-can price. There is no evidence that Mary Carter permitted or tolerated sales of single cans at less than the advertised per-can price.
2
I put aside the argument that might arise from Mary Carter's practice of selling its paint in both gallon and quart cans. Conceivably, one might order a gallon and receive an unneeded extra gallon, never realizing that two quarts purchased plus two quarts free could be had for a smaller sum. The FTC ignored and the Government expressly disclaims reliance on any such argument. Moreover, many ads seems to give both quart and gallon prices.
3
Of the post-1952 cases cited in the majority's note 2 (ante, p. 47), none is authority for condemning Mary Carter's advertising. Puro Co., 50 F.T.C. 454 (1953), and Ray S. Kalwajtys, 52 F.T.C. 721, enforced, Kalwajtys v. Federal Trade Commission, 237 F.2d 654, 65 A.L.R.2d 220 (C.A.7th Cir. 1956), both involved plain deceptions as to the usual prices of the items in question. Book-of-the-Month Club, Inc., 50 F.T.C. 778 (1954), and the Black case both exculpate sellers under the rule finally appearing in the 1953 policy statement, with whose terms Mary Carter has complied.
| 89
|
382 U.S. 68
86 S.Ct. 233
15 L.Ed.2d 143
RICHMOND TELEVISION CORPORATIONv.UNITED STATES.
No. 420.
Supreme Court of the United States
November 8, 1965
Robert T. Barton, Jr., for petitioner.
Solicitor General Marshall and Acting Assistant Attorney General Roberts, for the United States.
On Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit.
Opinion on remand 354 F.2d 410.
PER CURIAM.
1
The petition for writ of certiorari is granted.
2
In the light of the representations of the Solicitor General, and an independent examination of the record, we believe that the Court of Appeals for the Fourth Circuit was mistaken in its view that the petitioner's amortization claims for the taxable years 1956 and 1957 were not properly before it. Although the record is not free from ambiguity, we take the Court of Appeals to have based its decision on the ground that the petitioner's amortization claims derived solely from net operating loss deductions carried forward from prior years, and that no additional amortization deductions for 1956 and 1957 were sought. Since we find that the petitioner adequately presented its amortization claims for 1956 and 1957, we vacate the judgment of the Court of Appeals and remand the case to that court for the consideration of those claims, without intimation of any kind as to their merit.
| 89
|
382 U.S. 87
86 S.Ct. 211
15 L.Ed.2d 176
Fred L. SHUTTLESWORTH, Petitioner,v.CITY OF BIRMINGHAM.
No. 5.
Argued Oct. 11, 1965.
Decided Nov. 15, 1965.
James M. Nabrit, III, New York City, for petitioner.
Earl McBee, Birmingham, Ala., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioner was brought to trial in the Circuit Court of Jefferson County, Alabama, upon a complaint charging him with violating two sections of the General Code of the City of Birmingham, Alabama.1 After trial without a jury, the court found him 'guilty as charged in the Complaint,' and imposed a sentence of imprisonment for 180 days at hard labor and an additional 61 days at hard labor in default of a $100 fine and costs. The judgment of conviction was affirmed by the Alabama Court of Appeals, 42 Ala.App. 296, 161 So.2d 796, and the Supreme Court of Alabama declined review. 276 Ala. 707, 161 So.2d 799. We granted certiorari to consider the petitioner's claim that under the Fourteenth Amendment of the United States Constitution his conviction cannot stand. 380 U.S. 905, 85 S.Ct. 881, 13 L.Ed.2d 793.
2
The two ordinances which Shuttles-worth was charged with violating are §§ 1142 and 1231 of the Birmingham General City Code. The relevant paragraph of 1142 provides: 'It shall be unlawful for any person or any number of persons to so stand, loiter or walk upon any street or sidewalk in the city as to obstruct free passage over, on or along said street or sidewalk. It shall also be unlawful for any person to stand or loiter upon any street or sidewalk of the city after having been requested by any police officer to move on.' Section 1231 provides: 'It shall be unlawful for any person to refuse or fail to comply with any lawful order, signal or direction of a police officer.' The two counts in the complaint were framed in the words of these ordinances.2
3
The evidence was in conflict, but the prosecution's version of the facts can be briefly summarized. On April 4, 1962, at about 10:30 a.m., Patrolman Byars of the Birmingham Police Department observed Shuttlesworth standing on a sidewalk with 10 or 12 companions outside a department store near the intersection of 2d Ave. and 19th St. in the City of Birmingham. After observing the group for a minute or so, Byars walked up and 'told them they would have to move on and clear the sidewalk and not obstruct it for the pedestrians.' After some, but not all, of the group began to disperse, Byars repeated this request twice. In response to the second request, Shuttlesworth said, 'You mean to say we can't stand here on the sidewalk?' After the third request he replied, 'Do you mean to tell me we can't stand here in front of this store?' By this time everybody in the group but Shuttlesworth had begun to walk away, and Patrolman Byars told him he was under arrest. Shuttlesworth then responded, 'Well, I will go into the store,' and walked into the entrance of the adjacent department store. Byars followed and took him into custody just inside the store's entrance.3
I.
4
On its face, the here relevant paragraph of § 1142 sets out two separate and disjunctive offenses. The paragraph makes it an offense to 'so stand, loiter or walk upon any street or sidewalk * * * as to obstruct free passage over, on or along said street or sidewalk.' The paragraph makes it 'also * * * unlawful for any person to stand or loiter upon any street or sidewalk * * * after having been requested by any police officer to move on.' (Emphasis added.) The first count of the complaint in this case, tracking the ordinance, charged these two separate offenses in the alternative.4
5
Literally read, therefore, the second part of this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city. The constitutional vice of so broad a provision needs no demonstration.5 It 'does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat.' Cox v. State of Louisiana, 379 U.S. 536, 559, 579, 85 S.Ct. 453, 466, 469, 476, 13 L.Ed.2d 471, 487 (separate opinion of MR. JUSTICE BLACK). Instinct with its ever-present potential for arbitrarily suppressing First Amendment liberties, that kind of law bears the hallmark of a police state.6
6
The matter is not one which need be exhaustively pursued, however, because, as the respondent correctly points out, the Alabama Court of Appeals has not read § 1142 literally, but has given to it an explicitly narrowed construction. The ordinance, that court has ruled, 'is directed at obstructing the free passage over, on or along a street or sidewalk by the manner in which a person accused stands, loiters or walks thereupon. Our decisions make it clear that the mere refusal to move on after a police officer's requesting that a person standing or loitering should do so is not enough to support the offense. * * * (T)here must also be a showing of the accused's blocking free passage * * *.' Middlebrooks v. City of Birmingham, 42 Ala.App. 525, 527, 170 So.2d 424, 426.
7
The Alabama Court of Appeals has thus authoritatively ruled that § 1142 applies only when a person who stands, loiters, or walks on a street or sidewalk so as to obstruct free passage refuses to obey a request by an officer to move on. It is our duty, of course, to accept this state judicial construction of the ordinance. Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; United States v. Burnison, 339 U.S. 87, 70 S.Ct. 503, 94 L.Ed. 675; Aero Mayflower Transit Co. v. Board of Railroad Comm'rs, 332 U.S. 495, 68 S.Ct. 167, 92 L.Ed. 99. As so construed, we cannot say that the ordinance is unconstitutional though it requires no great feat of imagination to envisage situations in which such an ordinance might be unconstitutionally applied.
8
The present limiting construction of § 1142 was not given to the ordinance by the Alabama Court of Appeals, however, until its decision in Middlebrooks, supra, two years after the petitioner's conviction in the present case.7 In Middlebrooks the Court of Appeals stated that it had applied its narrowed construction of the ordinance in affirming Shuttlesworth's conviction, but its opinion in the present case, 42 Ala.App. 296, 161 So.2d 796, nowhere makes explicit any such construction. In any event, the trial court in the present case was without guidance from any state appellate court as to the meaning of the ordinance.
9
The trial court made no findings of fact and rendered no opinion. For all that appears, that court may have found the petitioner guilty only by applying the literal—and unconstitutional—terms of the ordinance. Upon the evidence before him, the trial judge as finder of the facts might easily have determined that the petitioner had created an obstruction, but had subsequently moved on. The court might alternatively have found that the petitioner himself had created no obstruction, but had simply disobeyed Patrolman Byars' instruction to move on. In either circumstance the literal terms of the ordinance would apply; in neither circumstance would the ordinance be applicable as now construed by the Alabama Court of Appeals. Because we are unable to say that the Alabama courts in this case did not judge the petitioner by an unconstitutional construction of the ordinance, the petitioner's conviction under § 1142 cannot stand.
II.
10
We find the petitioner's conviction under the second count of the complaint, for violation of § 1231 of the General City Code, to be constitutionally invalid for a completely distinct reason. That ordinance makes it a criminal offense for any person 'to refuse or fail to comply with any lawful order, signal or direction of a police officer.' Like the provisions of § 1142 discussed above, the literal terms of this ordinance are so broad as to evoke constitutional doubts of the utmost gravity. But the Alabama Court of Appeals has confined this ordinance to a relatively narrow scope. In reversing the conviction of the petitioner's codefendant, the court said of § 1231: 'This section appears in the chapter regulating vehicular traffic, and provides for the enforcement of the orders of the officers of the police department in directing such traffic.' Phifer v. City of Birmingham, 42 Ala.App. 282, 285, 160 So.2d 898, 901.8
11
The record contains no evidence whatever that Patrolman Byars was directing vehicular traffic at the time he told the petitioner and his companions to move on. Whatever Patrolman Byars' other generally assigned duties may have been,9 he testified unambiguously that he directed the petitioner's group to move on, to 'clear the sidewalk and not obstruct it for the pedestrians.'10
12
Five years ago this Court decided the case of Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. There we reversed the conviction of a man who had been found guilty in the police court of Louisville, Kentucky, of loitering and disorderly conduct. The proposition for which that case stands is simple and clear. It has nothing to do with concepts relating to the weight or sufficiency of the evidence in any particular case. It goes, rather, to the most basic concepts of due process of law. Its application in Thompson's case turned, as MR. JUSTICE BLACK pointed out 'not on the sufficiency of the evidence, but on whether this conviction rests upon any evidence at all.' 362 U.S., at 199, 80 S.Ct. at 625. The Court found there was 'no evidence whatever in the record to support these convictions,' and held that it was 'a violation of due process to convict and punish a man without evidence of his guilt.' 362 U.S., at 206, 80 S.Ct. at 629. See also Garner v. State of Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207.
13
No more need be said in this case with respect to the petitioner's conviction for violating § 1231 of the General Code of the City of Birmingham, Alabama. Quite simply, the petitioner was not in, on, or around any vehicle at the time he was directed to move on or at the time he was arrested. He was a pedestrian. Officer Byars did not issue any direction to the petitioner in the course of directing vehicular traffic, because Officer Byars was not then directing any such traffic. There was thus no evidence whatever in the record to support the petitioner's conviction under this ordinance as it has been authoritatively construed by the Alabama Court of Appeals. It was a violation of due process to convict and punish him without evidence of his guilt.
14
For these reasons the judgment is reversed and the case is remanded to the Court of Appeals of Alabama for proceedings not inconsistent with this opinion.
15
Reversed and remanded.
16
Mr. Justice DOUGLAS, concurring.
17
I join Part II of the Court's opinion but would reverse on Count I for a somewhat different reason. The police power of a municipality is certainly ample to deal with all traffic conditions on the streets—pedestrian as well as vehicular. So there could be no doubt that if petitioner were one member of a group obstructing a sidewalk he could, pursuant to a narrowly drawn ordinance, be asked to move on and, if he refused, be arrested for the obstruction. But in this case the testimony is that the group dissolved when warned by the police, save only the petitioner.* At the time of the arrest petitioner was no longer blocking traffic. Section 1142 of the Birmingham General Code makes it unlawful to 'obstruct the free passage of persons on * * * sidewalks.' The ordinance, as it has been construed by the Alabama Court of Appeals, has been held to apply only to one who continues to block a sidewalk after a police warning to move. Middlebrooks v. City of Birmingham, 42 Ala.App. 525, 527, 170 So.2d 424, 426. There was no such 'obstructing' here, unless petitioner's presence on the street was itself enough. Failure to obey such an order, when one is not acting unlawfully, certainly cannot be made a crime in a country where freedom of locomotion (Edwards v. People of State of California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119) is honored. For these reasons I think there was no evidence, within the meaning of Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, to sustain the conviction and hence I would reverse the judgment outright.
18
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS.
19
Officer Robert L. Byars, who made the arrest, testified on cross-examination as follows:
20
'Q. How many persons were standing there at that intersection when you first observed it?
21
'A. Some ten or twelve.
22
'Q. Were they all colored or white people, or altogether or what?
23
'A. I didn't pay particular notice to the race.
24
'Q. You stood there a minute or minute and a half and then you went out and cleared the intersection?
25
'A. I went out and asked them to move.
26
'Q. Was that great big crowd out there and the intersection completely blocked? You testified you had half of the south-north cross walk free, that the defendants were not blocking half of the south-north cross walk, they were standing in the west part of the cross walk where they should be standing assuming they were going south, they were not blocking the east-west cross walk at all? Now, where was the crowd that was blocking?
27
'A. They were all standing on the sidewalk.
28
'Q. You mean the crowd?
29
'A. That's right, including the defendant.
30
'Q. Now, you placed the defendants where you have the X. Now, the crowd is what we are interested in now, the crowd they were blocking, where were they?
31
'Mr. Walker: We object. There has been no testimony that there was a crowd that was being blocked; the testimony is there was a crowd blocking the moving traffic.
32
'Q. Are these defendants charged then with assembling the crowd or something? Who were they blocking? Where were the persons they were blocking, these two defendants here?
33
'A. They were blocking half of the sidewalk causing the people walking east to go into the street around them.
34
'Q. The people walking east along what street?
35
'A. Along 2nd Avenue.
36
'Q. Along this way (indicating)?
37
'A. That's right.
38
'Q. The people walking along 2nd Avenue from west to east had to go around them?
39
'A. That is true.
40
'Q. While they stood there?
41
'A. That is true.
42
'Q. And you observed that for a minute or minute and a half? 'A. That is true.
43
'Q. And then you went out and you required them to move on. Did you speak directly to the Defendant Shuttlesworth?
44
'A. I spoke to the people standing assembled there.
45
'Q. They all moved but him, is that correct?
46
'A. Not on the first request they didn't all move. Some began to move.
47
'Q. Well, all had moved by the time you made the arrest?
48
'A. Except Shuttlesworth.
49
'Q. Nobody was standing there but Shuttlesworth?
50
'A. Nobody was standing; everybody else was in motion except the Defendant Shuttlesworth, who had never moved.
51
'Q. Was he talking to you during this time?
52
'A. He made a statement to me on two occasions when I informed him to move on on three occasions.
53
'Q. Did he ask you where you wanted him to move?
54
'A. No.
55
'Q. Did you tell him where to move?
56
'A. I did not.
57
'Q. You didn't arrest anybody but Shuttlesworth?
58
'A. Not at that time.' (R. 27—28.)
59
Officer C. W. Hallman, who observed the above after having been called over by Officer Byars, testified on direct examination as follows:
60
'Q. About how many was in the group at that time, if you know?
61
'A. I would say five or six. It could have been more or less.
62
'Q. What happened to the group then, if anything?
63
'A. All of them dispersed except Shuttlesworth.
64
'Q. What happened after that?
65
'A. Officer Byars told him he was under arrest for blocking the sidewalk and placed him under arrest.' (R. 59—60.) Mr. Justice BRENNAN, concurring.
66
I join the Court's opinion on my understanding that Middlebrooks v. City of Birmingham is being read as holding that § 1142 applies only when a person (a) stands, loiters or walks on a street or sidewalk so as to obstruct free passage, (b) is requested by an officer to move on, and (c) thereafter continues to block passage by loitering or standing on the street. It is only this limiting construction which saves the statute from the constitutional challenge that it is overly broad. Moreover, because this construction delimits the statute to 'the sort of 'hard-core' conduct that would obviously be prohibited under any construction,' Dombrowski v. Pfister, 380 U.S. 479, 491—492, 85 S.Ct. 1116, 1124, 14 L.Ed.2d 22, it may be legitimately applied to such conduct occurring before that construction.
67
Mr. Justice FORTAS, with whom The Chief Justice joins, concurring.
68
I agree that Shuttlesworth's conviction must be set aside. But I am concerned lest the opinion of the Court be considered as indicating that Shuttlesworth can constitutionally be convicted of violating the General Code of the City of Birmingham, Alabama, on the facts here presented. Any such conviction would violate basic constitutional guaranties. I would make this clear now.
69
The Court's opinion does not challenge the constitutionality of § 1142 of the Birmingham Code as that section was construed by the Alabama Court of Appeals two years after Shuttlesworth's conviction. The opinion may be read to imply that if Shuttlesworth is now put to trial for violation of § 1142, as construed, the vice of the present conviction may be eliminated. I would make it clear that the Federal Constitution forbids a conviction on the facts of this record, regardless of the validity of the ordinance involved.
70
I agree that, as construed by Alabama two years after Shuttlesworth was convicted, § 1142 cannot be held unconstitutional on its face. I agree that if there were a rational basis for charging Shuttlesworth with violating the section as so construed, he could be retried if Alabama should choose so vigorously to protect the sidewalks of Birmingham. Civil rights leaders, like all other persons, are subject to the law and must comply with it. Their calling carries no immunity. Their cause confers no privilege to break or disregard the law.
71
But there is here no possible basis for a conviction which would be valid under the Federal Constitution. The accused provision would be unconstitutional as applied to Shuttlesworth's facts even after the plastic surgery by Alabama's Court of Appeals in 1964. Middlebrooks v. City of Birmingham, 42 Ala.App. 525, 170 So.2d 424.1 A revision of the formula does not and cannot change the facts; and those facts do not permit the State to jail Shuttlesworth for his actions on April 4, 1962.
72
Taking the prosecution's version of the facts, it appears that Shuttlesworth was one of a group of 8, 10 or 122 persons who at 10:30 a.m. on April 4, 1962, were accosted by a patrolman after they had stood for a minute or a minute and a half at 19th Street and 2d Avenue in Birmingham. They occupied one-half of the sidewalk. They were conversing among themselves. There is no suggestion of disorder or of deliberate obstruction of pedestrian traffic. After the first command by the patrolman, the group commenced to move away. The officer repeated his command, and Shuttlesworth said, 'You mean to say we can't stand here on the sidewalk?' After the third command, Shuttlesworth said, 'Do you mean to tell me we can't stand here in front of this store?' The officer then told Shuttlesworth he was under arrest. Shuttlesworth said he would go into the store. The officer followed and arrested him. There was no resistance. By this time everybody in the group except Shuttlesworth had moved away. The entire incident took less than four and one-half minutes, from arrival of Shuttlesworth and his friends at the corner to his arrest.
73
For this, Shuttlesworth was tried, convicted and sentenced to spend half a year at hard labor and to pay a fine of $100.
74
In my view, there is nothing in the facts which justified an arrest and conviction. Prior to the officer's command the situation was that a small group of people occupying one-half of the sidewalk were engaged in orderly conversation. Promptly upon the officer's command, the group began to disperse and only Shuttlesworth remained. He, alone, cannot be held to have blocked the sidewalk. His rhetorical questions may have irritated the patrolman; but a policeman's lot is not a happy one—and certainly, in context, Shuttlesworth's questions did not rise to the magnitude of an offense against the laws of Alabama. If one were to confine oneself to the surface version of the facts, a general alarm for the people of Birmingham would be in order. Their use of the sidewalks would be hazardous beyond measure.
75
But this, of course, is fiction. It is facade for a narrower, but no less disagreeable, truth. On April 4, 1962, the Negroes of Birmingham were engaged in a 'selective buying campaign'—an attempted boycott—of Birmingham's stores for the purpose of protesting discrimination against them. Shuttlesworth and his companions were Negroes.3 They were standing in front of a department store. Shuttlesworth, as an officer who participated in the arrest testified, was a 'notorious' person in the field of civil rights in Birmingham.4
76
In my view the net effect of the facts in this case is inescapable. Shuttlesworth's arrest was an incident in the tense racial conflict in Birmingham. This may explain the arrest, but it adds nothing to its lawfulness. There is no basis in the facts and circumstances of the case for charging that Shuttlesworth was 'blocking free passage' on the sidewalk, Middlebrooks, supra, at 527, 170 So.2d, at 426, or that he culpably refused to obey an order of an officer to move on, or remained after such an order so as to justify arrest, trial or conviction. Any attempt to punish Shuttlesworth in these circumstances would, in my view, violate the Fourteenth Amendment of the Federal Constitution.
1
This was a trial de novo on appeal from a judgment of conviction in the Recorder's Court of the City of Birmingham.
2
'Count One
'Comes the City of Birmingham, Alabama, a municipal corporation, and complains that F. L. Shuttlesworth, within twelve months before the beginning of this prosecution and within the City of Birmingham, or the police jurisdiction thereof, did stand, loiter or walk upon a street or sidewalk within and among a group of other persons so as to obstruct free passage over, on or along said street or sidewalk at, to-wit: 2nd Avenue, North, at 19th Street or did while in said group stand or loiter upon said street or sidewalk after having been requested by a police officer to move on, contrary to and in violation of Section 1142 of the General City Code of Birmingham of 1944, as amended by Ordinance Number 1436—F.
'Count Two
'Comes the City of Birmingham, Alabama, a municipal corporation, and complains that F. L. Shuttlesworth, within twelve months before the beginning of this prosecution and within the City of Birmingham, or the police jurisdiction thereof, did refuse to comply with a lawful order, signal or direction of a police officer, contrary to and in violation of Section 1231 of the General City Code of the City of Birmingham.'
3
The record contains many references to a so-called 'selective buying campaign' in which Birmingham Negroes were engaged at that time. There was no showing, however, of any connection between this campaign and the presence of the petitioner and his companions outside the department store on the morning of his arrest.
4
See note 2, supra.
5
Thornhill v. State of Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093; N.A.A.C.P. v. Button, 371 U.S. 415, 433, 435, 83 S.Ct. 328, 338, 339, 9 L.Ed.2d 405; Amsterdam, Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 75—81, 96—104 (1960). Cf. Smith v. People of State of California, 361 U.S. 147, 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205; Baggett v. Bullitt, 377 U.S. 360, 371, 84 S.Ct. 1316, 1322, 12 L.Ed.2d 377.
6
Lovell v. City of Griffin, 303 U.S. 444, 451, 58 S.Ct. 666, 668, 82 L.Ed. 949; Kunz v. People of State of New York, 340 U.S. 290, 293, 71 S.Ct. 312, 314, 95 L.Ed. 280; Schneider v. State of New Jersey, 308 U.S. 147, 163—164, 60 S.Ct. 146, 151—152, 84 L.Ed. 155.
7
The petitioner's trial took place in October 1962. The Alabama Court of Appeals affirmed the judgment of conviction in November 1963. The Middlebrooks case was decided in October 1964. 42 Ala.App. 525, 170 So.2d 424. The Middlebrooks construction of the ordinance was adumbrated in Smith v. City of Birmingham, decided the same day. 42 Ala.App. 467, 168 So.2d 35.
8
Cf. Shelton v. City of Birmingham, 42 Ala.App. 371, 165 So.2d 912, affirming the conviction of a defendant who refused to obey an officer's direction to get out of the middle of a street which had been closed to private vehicles and in which '(p)olice cars and fire engines were being used to move and quiet the crowd.'
9
Patrolman Byars testified that on the morning in question he was a 'utility officer,' and that as such he was 'in charge of the direction and movement of all traffic at 3rd Avenue and 19th Street and four blocks in an east, west, north and south direction.' He conceded that he was 'not regularly placed' at the intersection where the arrest occurred, and that he had 'nothing to do with the other officers who were also there.'
10
The record shows that the officer directing vehicular traffic at the intersection of 2d Ave. and 19th St. at the time of the petitioner's arrest was Officer Hallman. His relevant testimony was as follows:
'Q. Now, you observe on these corners from your position here when you police that corner, do you not?
'A. I try to.
'Q. Had you seen these people over there blocking traffic before you saw Officer Byars?
'A. I saw him standing over there talking to them.
'Q. Did you see them before he was talking to them?
'A. I saw them over there. I didn't pay any particular attention to them.
'Q. Did you get the impression they were waiting for the light to change?
'A. I couldn't answer that because I dont's know what they had on their mind.
'Q. You formed no impression when you first saw them?
'A. No.
'Q. You took no note of them when you first saw them, is that right?
'A. Just saw them standing over there.
'Q. The only time you made note of them standing over there was when you saw the policeman assisting you talking to them?
'A. When I saw him over there talking to them. He wasn't assisting me.
'Q. He wasn't assisting you with your corner.
'A. No.'
*
See Appendix hereto.
1
As the Court's opinion herein points out, in Middlebrooks, the Court of Appeals stated that its narrowed construction of the ordinance had been the 'ratio decidendi' of Shuttlesworth, decided a year earlier. But there is no indication of this in Shuttlesworth itself.
2
Officer Renshaw testified there were 8, 10 or 12 people in the group (R. 40). Officer Byars testified to 10 or 12 (R. 17).
3
Testimony of Officer Renshaw (R. 49). Officer Byars testified that he didn't know what color they were (R. 27, 36).
4
The principal arresting officer testified that he did not recognize Shuttlesworth, but he had seen his picture on television. He had heard of him, had read that he had frequently been arrested, and that he had been in the Birmingham jail. Shuttlesworth's walk on April 4, 1962, started during a recess in a federal court civil rights trial in which he was involved. The trial had been publicized.
| 23
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382 U.S. 70
86 S.Ct. 194
15 L.Ed.2d 165
William ALBERTSON and Roscoe Quincy Proctor, Petitioners,v.SUBVERSIVE ACTIVITIES CONTROL BOARD.
No. 3.
Argued Oct. 18, 1965.
Decided Nov. 15, 1965.
[Syllabus from pages 70-71 intentionally omitted]
John J. Abt, New York City, for petitioners.
Kevin T. Maroney, Washington, D.C., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The Communist Party of the United States of America failed to register with the Attorney General as required by the order of the Subversive Activities Control Board sustained in Communist Party of the United States v. SACB, 367 U.S 1, 81 S.Ct. 1357, 6 L.Ed.2d 625.1 Accordingly, no list of Party members was filed as required by § 7(d)(4) of the Subversive Activities Control Act of 1950, 64 Stat. 993—994, 50 U.S.C. § 786(d)(4) (1964 ed.).2 Sections 8(a) and (c) of the Act provide that, in that circumstance, each member of the organization must register and file a registration statement; in default thereof, § 13(a) authorizes the Attorney General to petition the Board for an order requiring the member to register.3 The Attorney General invoked § 13(a) against petitioners, and the Board, after evidentiary hearings, determined that petitioners were Party members and ordered each of them to register pursuant to §§ 8(a) and (c). Review of the orders was sought by petitioners in the Court of Appeals for the District of Columbia Circuit under § 14(a).4 The Court of Appeals affirmed the orders, 118 U.S.App.D.C. 117, 332 F.2d 317. We granted certiorari, 381 U.S. 910, 85 S.Ct. 1529, 14 L.Ed.2d 432. We reverse.5
I.
2
Petitioners address several constitutional challenges to the validity of the orders, but we consider only the contention that the orders violate their Fifth Amendment privilege against self-incrimination.6
3
The Court of Appeals affirmed the orders without deciding the privilege issue, expressing the view that under our decision in Communist Party, 367 U.S., at 105—110, 81 S.Ct., at 1415—1417, the issue was not ripe for adjudication and would be ripe only in a prosecution for failure to register if the petitioners did not register. 118 U.S.App.D.C. at 121—123, 332 F.2d, at 321—323. We disagree. In Communist Party the Party asserted the privilege on behalf of unnamed officers—those obliged to register the Party and those obliged 'to register for' the Party if it failed to do so.7 The self-incrimination claim asserted on behalf of the latter officers was held premature because the Party might choose to register and thus the duty of those officers might never arise. Here, in contrast, the contingencies upon which the members' duty to register arises have already matured; the Party did not register within 30 days after the order to register became final and the requisite 60 days since the order became final have elapsed. As to the officers obliged to register the Party, Communist Party held that the self-incrimination claim asserted on their behalf was not ripe for adjudication because it was not known whether they would ever claim the privilege or whether the claim, if asserted, would be honored by the Attorney General. But with respect to the orders in this case, addressed to named individuals, both these contingencies are foreclosed. Petitioners asserted the privilege in their answers to the Attorney General's petitions; they did not testify at the Board hearings; they again asserted the privilege in the review proceedings in the Court of Appeals. In each instance the Attorney General rejected their claims. Thus, the considerations which led the Court in Communist Party to hold that the claims on behalf of unnamed officers were premature are not present in this case.
4
There are other reasons for holding that petitioners' self-incrimination claims are ripe for decision. Specific orders requiring petitioners to register have been issued. The Attorney General has promulgated regulations requiring that registration shall be accomplished on Form IS—52a and that the accompanying registration statement shall be a completed Form IS—52,8 28 CFR §§ 11.206, 11.207, and petitioners risk very heavy penalties if they fail to register by completing and filing these forms. Under § 15(a)(2) of the Act, 64 Stat. 1002, 50 U.S.C. § 794(a)(2), for example, each day of failure to register constitutes a separate offense punishable by a fine of up to $10,000 or imprisonment of up to five years, or both.9 Petitioners must either register without a decision on the merits of their privilege claims, or fail to register and risk onerous and rapidly mounting penalties while awaiting the Government's pleasure whether to initiate a prosecution against them. To ask, in these circumstances, that petitioners await such a prosecution for an adjudication of their self-incrimination claims is in effect, to contend that they should be denied the protection of the Fifth Amendment privilege intended to relieve claimants of the necessity of making a choice between incriminating themselves and risking serious punishments for refusing to do so.
5
Indeed the Government concedes in its brief in this Court that the Court of Appeals' holding of prematurity was erroneous insofar as petitioners' claims of privilege relate to the Board's power to compel the act of registration and the submission of an accompanying registration statement. The brief candidly acknowledges that, since, § 14(b) provides for judicial review of a Board order to register, petitioners' claims in that regard, like any other contention that an order is invalid, may be heard and determined by the reviewing court—thus distinguishing orders that are not similarly reviewable, see Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686; Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783. Nevertheless, the Government argues that petitioners' claims are premature insofar as they relate to 'any particular inquiry' on Forms IS—52a and IS—52. Two contingencies are hypothesized in support of this contention: (1) that the Attorney General might alter the present forms or (2) that he might accept less than fully completed forms.
6
The distinction upon which this argument is predicated is illusory. Neither the statute nor the regulations draw any distinction between the act of registering and the submission of a registration statement, on the one hand, and, on the other hand, the answering of the inquiries demanded by the forms; the statute and regulations contemplate rather that the questions asked on the forms are to be fully and completely answered. Moreover, the contingencies hypothesized are irrelevant. Petitioners are obliged to register and to submit registration forms in accordance with presently existing regulations; the mere contingency that the Attorney General might revise the regulations at some future time does not render premature their challenge to the existing requirements. Nor can these requirements be viewed as requiring that petitioners answer—at the risk of criminal prosecution for error—only those items which will not incriminate petitioners; full compliance is required. Finally, the Government's argument would do violence to the congressional scheme. The penalties are incurred only upon failure to register as required by final orders and, under § 14(b), orders become final upon completion of judicial review. In so providing, Congress plainly manifested an intention to afford alleged members, prior to criminal prosecution for failure to register, an adjudication of all, not just some, of the claims addressed to the validity of the Board's registration orders. We therefore proceed to a determination of the merits of petitioners' self-incrimination claims.
II.
7
The risks of incrimination which the petitioners take in registering are obvious. Form IS—52a requires an admission of membership in the Communist Party. Such an admission of membership may be used to prosecute the registrant under the membership clause of the Smith Act, 18 U.S.C. § 2385 (1964 ed.) or under § 4(a) of the Subversive Activities Control Act, 64 Stat. 991, 50 U.S.C. § 783(a) (1964 ed.), to mention only two federal criminal statutes. Scales v. United States, 367 U.S. 203, 211, 81 S.Ct. 1469, 1477, 6 L.Ed.2d 782. Accordingly, we have held that mere association with the Communist Party presents sufficient threat of prosecution to support a claim of privilege. Patricia Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170; Irving Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306; Brunner v. United States, 343 U.S. 918, 72 S.Ct. 674, 96 L.Ed. 1332; Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964. These cases involved questions to witnesses on the witness stand, but if the admission cannot be compelled in oral testimony, we do not see how compulsion in writing makes a difference for constitutional purposes. Cf. People of New York ex rel. Ferguson v. Reardon, 197 N.Y. 236, 243—244, 90 N.E. 829, 832, 27 L.R.A.,N.S., 141. It follows that the requirement to accomplish registration by completing and filing Form IS—52a is inconsistent with the protection of the Self-Incrimination Clause.
8
The statutory scheme, in providing that registration 'shall be accompanied' by a registration statement, clearly implies that there is a duty to file Form IS—52, the registration statement, only if there is an enforceable obligation to accomplish registration by completing and filing Form IS—52a. Yet, even if the statute and regulations required petitioners to complete and file Form IS—52 without regard to the validity of the order to register onForm IS—52a, the requirement to complete and file Form IS—52 would also invade the privilege. Like the admission of Party membership demanded by Form IS—52a, the information called for by Form IS—52—the organization of which the registrant is a member his aliases, place and date of birth, a list of offices held in the organization and duties thereof—might be used as evidence in or at least supply investigatory leads to a criminal prosecution. The Government, relying on United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037, argues that petitioners might answer some questions and appropriately claim the privilege on the form as to others, but cannot fail to submit a registration statement altogether. Apart from our conclusion that nothing in the Act or regulations permits less than literal and full compliance with the requirements of the form, the reliance on Sullivan is misplaced. Sullivan upheld a conviction for failure to file an income tax return on the theory that '(i)f the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all.' 274 U.S., at 263, 47 S.Ct., at 607. That declaration was based on the view, first, that a self-incrimination claim against every question on the tax return, or based on the mere submission of the return, would be virtually frivolous, and second, that to honor the claim of privilege not asserted at the time the return was due would make the taxpayer rather than a tribunal the final arbiter of the merits of the claim. But neither reason applies here. A tribunal, the Board, had an opportunity to pass upon the petitioners' self-incrimination claims; and since, unlike a tax return, the pervasive effect of the information called for by Form IS—52 is incriminatory, their claims are substantial and far from frivolous. In Sullivan the questions in the income tax return were neutral on their face and directed at the public at large, but here they are directed at a highly selective group inherently suspect of criminal activities. Petitioners' claims are not asserted in an essentially noncriminal and regulatory area of inquiry, but against an inquiry in an area permeated with criminal statutes, where response to any of the form's questions in context might involve the petitioners in the admission of a crucial element of a crime.
III.
9
Section 4(f) of the Act,10 the purported immunity provision, does not save the registration orders from petitioners' Fifth Amendment challenge. In Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110, decided in 1892, the Court held 'that no (immunity) statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege * * *,' and that such a statute is valid only if it supplies 'a complete protection from all the perils against which the constitutional prohibition was designed to guard * * *' by affording 'absolute immunity against future prosecution for the offence to which the question relates.' Id., at 585—586, 12 S.Ct. at 206. Measured by these standards, the immunity granted by § 4(f) is not complete. See Scales v. United States, 367 U.S., at 206—219, 81 S.Ct., at 1474—1476. It does not preclude any use of the information called for by Form IS—52, either as evidence or as an investigatory lead. With regard to the act of registering on Form IS—52a, § 4(f) provides only that the admission of Party membership thus required shall not per se constitute a violation of §§ 4(a) and (c) or any other criminal statute, or 'be received in evidence' against a registrant in any criminal prosecution; it does not preclude the use of the admission as an investigatory lead, a use which is barred by the privilege. (Counselman v. Hitchcock, 142 U.S., at 564—565, 585, 12 S.Ct., at 198—199, 206.11
10
The Government does not contend that the shortcoming of § 4(f) is remedied in regard to information called for on the registration statement. Form IS—52. With respect to Form IS—52a, however, the argument is made that, since an order to register is preceded by a Board finding or Party membership, the admission of membership required on that form would be of no investigatory value and thus is not 'incriminatory' within the meaning of the Fifth Amendment privilege. On this view the incompleteness of the § 4(f) grant of immunity would be rendered immaterial and the admission of Party membership could be compelled without violating the privilege. We disagree. The judgment as to whether a disclosure would be 'incriminatory' has never been made dependent on an assessment of the information possessed by the Government at the time of interrogation; the protection of the privilege would be seriously impaired if the right to invoke it was dependent on such an assessment, with all its uncertainties. The threat to the privilege is no less present where it is proposed that this assessment be made in order to remedy a shortcoming in a statutory grant of immunity. The representation that the information demanded is of no utility is belied by the fact that the failure to make the disclosure is so severely sanctioned; and permitting the incompleteness of § 4(f) to be cured by such a representation would render illusory the Counselman requirement that a statute in order to supplant the privilege, must provide 'complete protection from all the perils against which the constitutional prohibition was designed to guard.'
11
The judgment of the Court of Appeals is reversed and the Board's orders are set aside.
12
It is so ordered.
13
Mr. Justice BLACK concurs in the reversal for all the reasons set out in the Court's opinion as well as those set out in his dissent in Communist Party of the United States v. SACB, 367 U.S. 1, 137, 81 S.Ct. 1357, 1431.
14
Mr. Justice WHITE took no part in the consideration or decision of this case.
APPENDIX TO OPINION OF THE COURT.
Form IS—52a is as follows:
Form No. IS—52a (Ed. 9—6—61)
Budget Bureau No. 43—R414
Approval expires July 31, 1966
15
UNITED STATES DEPARTMENT OF JUSTICE WASHINGTON, D.C.
REGISTRATION FORM FOR INDIVIDUALS
16
Pursuant to Section 8(a) or (b) of the Internal Security Act of 1950
17
(NOTE: This form should be accompanied by a Registration Statement, Form IS—52)
18
_ _ (Name of individual—Print or type) hereby registers as a member of _ _ a Communist-action organization.
19
/s/ _ _
20
(Signature)
21
(Date)
22
_ _ _
23
(Typed or printed name)
24
(Date)
25
_ _d n
26
(Address—type or print) Form IS—52 is as follows:
Budget Bureau No. 43—R301.2
Approval expires July 31, 1966
27
UNITED STATES DEPARTMENT OF JUSTICE WASHINGTON, D.C.
28
FORM IS—52 for REGISTRATION STATEMENTS OF INDIVIDUALS
29
Pursuant to section 8 of the Internal Security Act of 1950
INSTRUCTION SHEET—READ CAREFULLY
30
1. All individuals required to register under section 8 of the Internal Security Act of 1950 shall use this form for their registration statements.
31
2. Two copies of the statement are to be filed. An additional copy of the statement should be prepared and retained by the Registrant for future references.
32
3. The statement is to be filed with the Internal Security Division, Department of Justice, Washington, D.C.
33
4. All items of the form are to be answered. Where the answer to an item is 'None' or 'inapplicable,' it should be so stated.
34
5. Both copies of the statement are to be signed. The making of any willful false statement or the omission of any material fact is punishable under 18 U.S. Code, 1001.
35
6. If the space provided on the form for the answer to any given item is insufficient, reference shall be made in such space to a full insert page or pages on which the item number and item shall be restated and the answer given.
FOR AN INDIVIDUAL
36
a. Who is a member of any Communist-action organization which has failed to file a registration statement as required by Section 7(a) of the Internal Security Act of 1950.
OR
37
b. Who is a member of any organization which has registered as a Communist-action organization under Section 7(a) of the Internal Security Act of 1950 but which has failed to include the individual's name upon the list of members filed with the Attorney General.
38
1. Name of the Communist-action organization of which Registrant was a member within the preceding twelve months.
39
2. (a) Name of Registrant.
40
(b) All other names used by Registrant during the past ten years and dates when used.
41
(c) Date of birth.
42
(d) Place of birth.
43
3. (a) Present business address.
44
(b) Present residence address.
45
4. If the Registrant is now or has within the past twelve months been an officer of the Communist-action organization listed in response to question number 1:
46
(a) List all offices so held and the date when held.
47
(b) Give a description of the duties or functions performed during tenure of office.
48
The undersigned certifies that he has read the information set forth in this statement, that he is familiar with the contents thereof, and that such contents are in their entirety true and accurate to the best of his knowledge and belief. The undersigned further represents that he is familiar with the provisions of Section 1001, Title 18, U.S.Code (printed at the bottom of this form).*
49
/S/ _ _
50
(Signature)
51
(Date)
52
/T/ _ _
53
(Name)
54
(Date)
55
(Print or type)
56
Mr. Justice CLARK, concurring.
57
I join in the opinion of the Court. The conclusion it reaches today was forecast in 1948. In response to the request of the Chairman of the Senate Judiciary Committee for an expression of the views of the Department of Justice on H.R. 5852, a precursor of the Act here under attack, it was then pointed out that the 'measure might be held * * * even to compel self-incrimination.'**
58
This view was expressed in a letter over my signature as Attorney General which noted that the proposed legislation 'would require every Communist political organization and every Communist-front organization to register * * *. In addition to information which would be required of both organizations in common, a Communist political organization would be obliged to disclose the names and addresses of its members in its registration statement. * * * In case of the failure of any organization to register in accordance with the measure, it would be the duty of the executive officer and the secretary of such organization to register in behalf of the organization. * * * A failure to register * * * subjects the organization and certain of its agents to severe penalties.' After consideration of other provisions of the bill the letter advised that the Department of Justice had concluded that 'the measure might be held (notwithstanding the legislative finding of clear and present danger) to deny freedom of speech, of the press, and of assembly, and even to compel self-incrimination.' It also expressed the belief of the Department that 'there would not be any voluntary registrations under the measure. Should a Communist organization fail to register, the burden to proceed would shift to the Attorney General * * * to prove that the organization is required to register.'
59
As finally passed, the Act imposed a duty to register upon individual members after the refusal of the Communist Party to register and disclose its membership. Though not in H.R. 5852 about which the Department of Justice expressed constitutional doubts, this more pervasive registration requirement directly abridges the privilege of members against self-incrimination. I therefore join in this reversal.
1
The judgment of conviction of the Party for failure to register was reversed by the Court of Appeals for the District of Columbia Circuit, and the case remanded for a new trial. Communist Party of the United States v. United States, 118 U.S.App.D.C. 61, 331 F.2d 807.
2
Under this section the registration statement which accompanies the registration of a Communist-action organization is required to include 'the name and last-known address of each individual who was a member of the organization at any time during the period of twelve full calendar months preceding the filing of such statement.'
3
Sections 8(a) and (c), 64 Stat. 995, 50 U.S.C. § 787(a) and (c) (1964 ed.), provide:
'(a) Any individual who is or becomes a member of any organization concerning which (1) there is in effect a final order of the Board requiring such organization to register under section 786(a) of this title as a Communist-action organization, (2) more than thirty days have elapsed since such order has become final, and (3) such organization is not registered under section 786 of this title as a Communist-action organization, shall within sixty days after said order has become final, or within thirty days after becoming a member of such organization, whichever is later, register with the Attorney General as a member of such organization.
'(c) The registration made by any individual under subsection (a) or (b) of this section shall be accompanied by a registration statement to be prepared and filed in such manner and form, and containing such information, as the Attorney General shall by regulations prescribe.'
Section 13(a), 64 Stat. 998, 50 U.S.C. § 792(a) (1964 ed.), provides:
'Whenever the Attorney General shall have reason to believe that * * * any individual who has not registered under section 787 of this title is in fact required to register under such section, he shall file with the Board and serve upon such * * * individual a petition for an order requiring such * * * individual to register pursuant to such subsection or section, as the case may be. Each such petition shall be verified under oath, and shall contain a statement of the facts upon which the Attorney General relies in support of his prayer for the issuance of such order.'
4
Section 14(a), 64 Stat. 1001, 50 U.S.C. § 793(a) (1964 ed.), provides:
'The party aggrieved by any order entered by the Board * * * may obtain a review of such order by filing in the United States Court of Appeals for the District of Columbia, within sixty days from the date of service upon it of such order, a written petition praying that the order of the Board be set aside. * * * Upon the filing of such petition the court shall have jurisdiction of the proceeding and shall have power to affirm or set aside the order of the Board * * *. The findings of the Board as to the facts, if supported by the preponderance of the evidence, shall be conclusive. * * * The judgment and decree of the court shall be final, except that the same shall be subject to review by the Supreme Court upon certiorari * * *.'
5
The Government's opposition to the petition for certiorari suggested that the case is moot as to petitioner Albertson by reason of his alleged expulsion from the Party. Albertson, however, challenges the suggestion of mootness. There is no occasion to decide the question since, in any event, we must reach the merits of the issues in respect of an identical order issued against petitioner Proctor.
6
Petitioners' other challenges assailed the Act and registration orders as denying substantive due process (because they allegedly serve no governmental purpose), as abridging First Amendment freedoms, as violating procedural due process and constituting bills of attainder (because they made the Board's 1953 determination that the Communist Party was a Communist-action organization conclusive upon petitioners), and finally, as denying petitioners the safeguards of grand jury indictment, judicial trial and trial by jury.
7
The regulations governing Party registration pursuant to § 7(d), 50 U.S.C. § 786(d), are 28 CFR §§ 11.200 and 11.201, and the forms are IS—51a and IS—51. The regulation governing officers obliged by § 7(h), 50 U.S.C. § 786(h) 'to register for' the Party if it failed to register is 28 CFR § 11.205. See Communist Party, 367 U.S., at 105—110, 81 S.Ct. 1415—1417.
8
Copies of Form IS—52a and Form IS—52 are reproduced in the Appendix to this opinion.
9
The case was argued orally by both sides on the premise that the penalty for failure to complete and file Form IS—52 constituted a separate offense punishable by fine of up to $10,000 or imprisonment of up to five years, or both, but that each day of failure to file the form did not constitute a separate offense. We have no occasion, however, to decide the question, and intimate no view upon it. See § 15(b), 50 U.S.C. § 794(b).
10
Section 4(f), 64 Stat. 992, 50 U.S.C. § 783(f) provides:
'Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute. The fact of the registration of any person under section 787 or section 788 of this title as an officer or member of any Communist organization shall not be received in evidence against such person in any prosecution for any alleged violation of subsection (a) or subsection (c) of this section or for any alleged violation of any other criminal statute.'
11
The legislative history includes several expressions of doubt that the immunity granted was coextensive with the privilege. See S.Rep. No. 2369, 81st Cong., 2d Sess., Pt. 2, pp. 12—13 (Sen. Kilgore) (Minority Report); 96 Cong.Rec. 14479 (Sen. Humphrey); 96 Cong.Rec. 15199 and 15554 (Sen. Kefauver); see also 96 Cong.Rec. 13739—13740 (Rep. Celler), dealing with a more modified immunity grant in H.R. 9490. See generally Scales v. United States, 367 U.S., at 212—219, 81 S.Ct., at 1477—1481 (Court opinion), 282—287 (dissenting opinion).
*
18 U.S.C., Section 1001, provides: Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
**
Hearings on H.R. 5852 before the Senate Committee on the Judiciary, 80th Cong., 2d Sess., 422 (1948).
| 23
|
382 U.S. 103
86 S.Ct. 224
15 L.Ed.2d 187
Carolyn BRADLEY et al.v.SCHOOL BOARD, CITY OF RICHMOND, VA., et al. Renee Patrice GILLIAM et al. v. SCHOOL BOARD, CITY OF HOPEWELL, VA., et al.
Nos. 415, 416.
Decided Nov. 15, 1965.
Jack Greenberg, James M. Nabrit III, S. W. Tucker and Henry L. Marsh III, for petitioners.
J. Elliott Drinard and Henry T. Wickham, for respondents School Board, City of Richmond, Va., and others.
Frederick T. Gray, for respondents School Board, City of Hopewell, and others.
PER CURIAM.
1
The petitions for writs of certiorari to the Court of Appeals for the Fourth Circuit are granted for the purpose of deciding whether it is proper to approve school desegregation plans without considering, at a full evidentiary hearing, the impact on those plans of faculty allocation on an alleged racial basis. We hold that the Court of Appeals erred in both these cases in this regard, 345 F.2d 310, 319—321; 345 F.2d 325, 328.
2
Plans for desegregating the public school systems of Hopewell and Richmond, Virginia, were approved by the District Court for the Eastern District of Virginia without full inquiry into petitioners' contention that faculty allocation on an alleged racial basis rendered the plans inadequate under the principles of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. The Court of Appeals, while recognizing the standing of petitioners, as parents and pupils, to raise this contention, declined to decide its merits because no evidentiary hearings had been held on this issue. But instead of remanding the cases for such hearings prior to final approval of the plans, the Court of Appeals held that '(w)hether and when such an inquiry is to be had are matters with respect to which the District Court * * * has a large measure of discretion,' and it reasoned as follows:
3
'When direct measures are employed to eliminate all direct discrimination in the assignment of pupils, a District Court may defer inquiry as to the appropriateness of supplemental measures until the effect and the sufficiency of the direct ones may be determined. The possible relation of a reassignment of teachers to protection of the constitutional rights of pupils need not be determined when it is speculative. When all direct discrimination in the assignment of pupils has been eliminated, assignment of teachers may be expected to follow the racial patterns established in the schools. An earlier judicial requirement of general reassignment of all teaching and administrative personnel need not be considered until the possible detrimental effects of such an order upon the administration of the schools and the efficiency of their staffs can be appraised along with the need for such an order in aid of protection of the constitutional rights of pupils.' 345 F.2d at 320—321.
4
We hold that petitioners were entitled to such full evidentiary hearings upon their contention. There is no merit to the suggestion that the relation between faculty allocation on an alleged racial basis and the adequacy of the desegregation plans is entirely speculative. Nor can we perceive any reason for postponing these hearings: Each plan had been in operation for at least one academic year; these suits had been pending for several years; and more than a decade has passed since we directed desegregation of public school facilities 'with all deliberate speed,' Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083. Delays in desegregating school systems are no longer tolerable. Goss v. Board of Education, 373 U.S. 683, 689, 83 S.Ct. 1405, 1409, 10 L.Ed.2d 632; Calhoun v. Latimer, 377 U.S. 263, 264—265, 84 S.Ct. 1235, 1236, 12 L.Ed.2d 288; see Watson v. City of Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529.
5
The judgments of the Court of Appeals are vacated and the cases are remanded to the District Court for evidentiary hearings consistent with this opinion. We, of course, express no views of the merits of the desegregation plans submitted, nor is further judicial review precluded in these cases following the hearings.
6
Vacated and remanded.
| 12
|
382 U.S. 111
86 S.Ct. 258
15 L.Ed.2d 194
SWIFT & COMPANY, Inc., et al., Appellants,v.Don J. WICKHAM, Commissioner of Agriculture and Markets of New York.
No. 9.
Argued Oct. 13, 1965.
Decided Nov. 22, 1965.
William J. Condon, New York City, for appellants.
Samuel A. Hirshowitz, New York City, for appellee.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Appellants, the Swift and Armour Companies, stuff, freeze, and package turkeys which they ship to retailers throughout the country for ultimate sale to consumers. Each package is labeled with the net weight of the particular bird (including stuffing) in conformity with a governing federal statute, the Poultry Products Inspection Act of 1957, 71 Stat. 441, 21 U.S.C. §§ 451—469 (1964 ed.), and the regulations issued under its authority by the Secretary of Agriculture.1 Many of these turkeys are sold in New York. Section 193 of New York's Agriculture and Markets Law, McKinney's Consol.Laws, c. 692 has been interpreted through regulations and rulings to require that these packaged turkeys be sold with labels informing the public of the weight of the unstuffed bird as well as of the entire package. Because the amount of stuffing varies with each bird, the State thus seeks to help purchasers ascertain just how much fowl is included in each ready-for-the-oven turkey.
2
Swift and Armour requested permission of the Poultry Products Section of the Department of Agriculture to change their labels in order to conform with New York's requirements, but such permission was refused at the initial administrative level and no administrative review of that refusal was sought. Swift and Armour then brought this federal action to enjoin the Commissioner of Agriculture and Markets of New York from enforcing the State's labeling provisions, asserting that enforcement would violate the Commerce Clause and the Fourteenth Amendment of the Federal Constitution and overriding requirements of the federal poultry enactment.
3
Pursuant to appellants' request, a three-judge district court was constituted under 28 U.S.C. § 2281 (1958 ed.), which provides for such a tribunal whenever the enforcement of a state statute is sought to be enjoined 'upon the ground of the unconstitutionality of such statute.' The District Court, unsure of its jurisdiction for reasons appearing below, dismissed the suit on the merits3 acting both in a three-judge and single-judge capacity.4 Appeals were lodged in the Court of Appeals for the Second Circuit from the single-judge determination, and in this Court from the three-judge decision in accordance with the direct appeal statute, 28 U.S.C. § 1253 (1964 ed.). The threshold question before us, the consideration of which we postponed to the merits (379 U.S. 997, 85 S.Ct. 716, 13 L.Ed.2d 700), is whether this Court, rather than the Court of Appeals, has jurisdiction to review the District Court determination, and this in turn depends on whether a three-judge court was required. We hold that it was not.
4
At the outset, we agree with the District Court that the Commerce Clause and Fourteenth Amendment claims alleged in the complaint are too insubstantial to support the jurisdiction of a three-judge court. It has long been held that no such court is called for when the alleged constitutional claim is insubstantial, Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152; California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323. Since the only remaining basis but forth for enjoining enforcement of the state enactment was its asserted repugnancy to the federal statute, the District Court was quite right in concluding that the question of a three-judge court turned on the proper application of our 1962 decision in Kesler v. Department of Public Safety, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641. There we decided that in suits to restrain the enforcement of a state statute allegedly in conflict with or in a field pre-empted by a federal statute, § 2281 comes into play only when the Supremacy Clause of the Federal Constitution is immediately drawn in question, but not when issues of federal or state statutory construction must first be decided even though the Supremacy Clause may ultimately be implicated. Finding itself unable to say with assurance whether its resolution of the merits of this case involved less statutory construction than had taken place in Kesler, the District Court was left with the puzzling question how much more statutory construction than occurred in Kesler is necessary to deprive three judges of their jurisdiction.
5
It might suffice to dispose of the three-judge court issue for us to hold, in agreement with what the District Court indicated, 230 F.Supp., at 410, that this case involves so much more statutory construction than did Kesler that a three-judge court was inappropriate. (We would indeed find it difficult to say that less or no more statutory construction was involved here than in Kesler and that therefore under that decision a three-judge court was necessary.) We think, however, that such a disposition of this important jurisdictional question would be less than satisfactory, that candor compels us to say that we find the application of the Kesler rule as elusive as did the District Court, and that we would fall short in our responsibilities if we did not accept this opportunity to take a fresh look at the problem. We believe that considerations of stare decisis should not deter us from this course. Unless inexorably commanded by statute, a procedural principle of this importance should not be kept on the books in the name of stare decisis once it is proved to be unworkable in practice; the mischievous consequences to litigants and courts alike from the perpetuation of an unworkable rule are too great. For reasons given in this opinion, we have concluded that the Kesler doctrine in this area of § 2281 is unsatisfactory, and that Kesler should be pro tanto overruled. The overruling of a six-to-two decision5 of such recent vintage, which was concurred in by two members of the majority in the present case,6 and the opinion in support of which was written by an acknowledged expert in the field of federal jurisdiction, demands full explication of our reasons.
I.
6
The three-judge district court is a unique feature of our jurisprudence, created to alleviate a specific discontent within the federal system. The antecedent of § 2281 was a 1910 Act7 passed to assuage growing popular displeasure with the frequent grants of injunctions by federal courts against the operation of state legislation regulating railroads and utilities in particular.8 The federal courts of the early nineteenth century had occasionally issued injunctions at the behest of private litigants against state officials to prevent the enforcement of state statutes,9 but such cases were rare and generally of a character that did not offend important state policies. The advent of the Granger and labor movements in the late nineteenth century,10 and the acceleration of state social legislation especially through the creation of regulatory bodies met with opposition in the federal judiciary. In Chicago, M. & St. P.R. Co. v. State of Minnesota, 134 U.S. 418, 10 S.Ct. 462, 702, 33 L.Ed. 970, this Court held that the setting of rates not permitting a fair return violated the Due Process Clause of the Fourteenth Amendment. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, established firmly the corollary that inferior federal courts could enjoin state officials from enforcing such unconstitutional state laws.
7
This confrontation between the uncertain contours of the Due Process Clause and developing state regulatory legislation, arising in district courts that were generally considered unsympathetic to the policies of the States, had severe repercussions. Efforts were made in Congress to limit in various ways the jurisdiction of federal courts in these sensitive areas.11 State officials spoke out against the obstruction and delay occasioned by these federal injunction suits.12 The sponsor of the bill establishing the three-judge procedure for these cases, Senator Overman of North Carolina, noted:
8
'(T)here are 150 cases of this kind now where one federal judge has tied the hands of the state officers, the governor, and the attorney-general * * *.
9
Whenever one judge stands up in a State and enjoins the governor and the attorney-general, the people resent it, and public sentiment is stirred, as it was in my State, when there was almost a rebellion, whereas if three judges declare that a state statute is unconstitutional the people would rest easy under it.' 45 Cong.Rec. 7256.13
10
In such an atmosphere was this three-judge court procedure put on the statute books, and although subsequent Congresses have amended the statute14 its basic structure remains intact.
II.
11
Section 2281 was designed to provide a more responsible forum for the litigation of suits which, if successful, would render void state statutes embodying important state policies. The statute provides for notification to the State of a pending suit, 28 U.S.C. § 2284(2) (1964 ed.), thus preventing ex parte injunctions common previously.15 It provides for three judges, one of whom must be a circuit judge, 28 U.S.C. § 2284(1) (1964 ed.), to allow a more authoritative determination and less opportunity for individual predilection in sensitive and politically emotional areas. It authorizes direct review by this Court, 28 U.S.C. § 1253, as a means of accelerating a final determination on the merits; an important criticism of the pre-1910 procedure was directed at the length of time required to appeal through the circuit courts to the Supreme Court, and the consequent disruption of state tax and regulatory programs caused by the outstanding injunction.16
12
That this procedure must be used in any suit for an injunction against state officials on the ground that a state enactment is unconstitutional has been clear from the start. What yet remains unclear, in spite of decisions by this and other courts, is the scope of the phrase 'upon the ground of the unconstitutionality of such statute' when the complaint alleges not the traditional Due Process Clause, Equal Protection Clause, Commerce Clause, or Contract Clause arguments, but rather that the state statute or regulation in question is pre-empted by or in conflict with some federal statute or regulation thereunder. Any such pre-emption or conflict claim is of course grounded in the Supremacy Clause of the Constitution: if a state measure conflicts with a federal requirement, the state provision must give way. Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23. The basic question involved in these cases, however, is never one of interpretation of the Federal Constitution but inevitably one of comparing two statutes. Whether one district judge or three must carry out this function is the question at hand.
13
The first decision of this Court casting light on the problem was Ex parte Buder, 271 U.S. 461, 46 S.Ct. 557, 70 L.Ed. 1036, in which the question presented was, as here, whether an appeal was properly taken directly from the District Court to the Supreme Court. At issue was whether a Missouri statute authorizing taxation of bank shares remained valid after the enactment of a federal statute which enlarged the scope of the States' power to tax national banks by permitting taxation of shares, or dividends, or income. Under the federal scheme, States were apparently expected to choose one of the three methods. Although the Missouri law applied the first basis of assessment, the District Court held that because the State did not explicitly choose among the three types of taxation, but instead relied on a prior statute, the assessment was void. Mr. Justice Brandeis, writing for a unanimous Court, held that this was not properly a three-judge court case '* * * because no state statute was assailed as being repugnant to the federal Constitution.' 271 U.S., at 465, 46 S.Ct., at 558. Although the complaint in Buder did not explicitly invoke the Supremacy Clause, it should be noted that the defendants' answer asserted that if the federal statute was constitutional under the Tenth Amendment, then it would indeed be the "supreme law of the land' within the meaning and provisions of Article VI of the Constitution of the United States,' and thus controlling over the particular state statute unless that statute could be construed as consistent with the federal law. The District Court in Buder was thus clearly presented with the Supremacy Clause basis of the statutory conflict.
14
Ex parte Bransford, 310 U.S. 354, 60 S.Ct. 947, 84 L.Ed. 1249, raised a similar problem, also in the context of the validity of a state tax. The Court again held this type of federal-state confrontation outside the purview of the predecessor of § 2281:
15
'If such assessments are invalid, it is because they levy taxes upon property withdrawn from taxation by federal law or in a manner forbidden by the National Banking Act. The declaration of the supremacy clause gives superiority to valid federal acts over conflicting state statutes but this superiority for present purposes involves merely the construction of an act of Congress, not the constitutionality of the state enactment.' 310 U.S., at 358—359, 60 S.Ct. at 950: In a third case, Case v. Bowles, 327 U.S. 92, 66 S.Ct. 438, 90 L.Ed. 552, the question involved the proposed sale by the State of Washington of timber on stateowned land at a price violating the Federal Emergency Price Control Act of 1942. A federal district court enjoined the sale, and on appeal the State argued that the single judge lacked jurisdiction. This Court held otherwise: 'the complaint did not challenge the constitutionality of the State statute but alleged merely that its enforcement would violate the Emergency Price Control Act. Consequently a three-judge court is not required.' 327 U.S., at 97, 66 S.Ct., at 441.17
16
The upshot of these decisions seems abundantly clear: Supremacy Clause cases are not within the purview of § 2281.18 This distinction between cases involving claims that state statutes are unconstitutional within the scope of § 2281 and cases involving statutory preemption or conflict remained firm until Kesler v. Department of Public Safety, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641, in which the plaintiff alleged a conflict between the federal bankruptcy laws and a state statute suspending the driving licenses of persons who are judgment debtors as a result of an adverse decision in an action involving the negligent operation of an automobile. It was argued that federal policy underlying the bankruptcy law overrode the State's otherwise legitimate exercise of its police power. Mr. Justice Frankfurter, for a majority, declared first that § 2281 made no distinction between the Supremacy Clause and other provisions of the Constitution as a ground for denying enforcement of a state statute, and second that Buder, Bransford, and Case could be distinguished on the ground that they presented no claims of unconstitutionality as such: 'If in immediate controversy is not the unconstitutionality of a state law but merely the construction of a state law or the federal law, the three-judge requirement does not become operative.' 369 U.S., at 157, 82 S.Ct., at 811. In the Kesler case itself, Mr. Justice Frankfurter said, there was no problem of statutory construction but only a 'constitutional question' whether the state enactment was pre-empted. After what can only be characterized as extensive statutory analysis (369 U.S., at 158—174, 82 S.Ct. at 811—820) the majority concluded that there had in fact been no pre-emption.19
III.
17
In re-examining the Kesler rule the admonition that § 2281 is to be viewed 'not as a measure of broad social policy to be construed with great liberality, but as an enactment technical in the strict sense of the term and to be applied as such,' Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800, should be kept in mind. The Kesler opinion itself reflects this admonition, for its rationalization of Buder, Bransford, and Case as being consistent with the view that Supremacy Clause cases are not excluded from 'the comprehensive language of § 2281,' 369 U.S., at 156, 82 S.Ct., at 810, is otherwise most difficult to explain.
18
As a procedural rule governing the distribution of judicial responsibility the test for applying § 2281 must be clearly formulated. The purpose of the three-judge scheme was in major part to expedite important litigation: it should not be interpreted in such a way that litigation, like the present one, is delayed while the proper composition of the tribunal is litigated. We are now convinced that the Kesler rule, distinguishing between cases in which substantial statutory construction is required and those in which the constitutional issue is 'immediately' apparent, is in practice unworkable. Not only has it been uniformly criticized by commentators,20 but lower courts have quite evidently sought to avoid dealing with its application21 or have interpreted it with uncertainty.22 As Judge Friendly's opinion for the court below demonstrates, in order to ascertain the correct forum, the merits must first be adjudicated in order to discover whether the court has 'engaged in so much more construction than in Kesler as to make that ruling inapplicable.' 230 F.Supp., at 410. Such a formulation, whatever its abstract justification, cannot stand as an every-day test for allocating litigation between district courts of one and three judges.
19
Two possible interpretations of § 2281 would provide a more practicable rule for three-judge court jurisdiction. The first is that Kesler might be extended to hold, as some of its language might be thought to indicate,23 that all suits to enjoin the enforcement of a state statute, whatever the federal ground, must be channeled through three-judge courts. The second is that no such suits resting solely on 'supremacy' grounds fall within the statute.
20
The first alternative holds some attraction. First, it is relatively straightforward: a court need not distinguish among different constitutional grounds for the requested injunction; it need look only at the relief sought. Moreover, in those cases, as in that before us, in which an injunction is sought on several grounds, the proper forum would not depend on whether certain alleged constitutional grounds turn out to be insubstantial. Second, § 2281 speaks of 'unconstitutionality,' and, to be sure, any determination that a state statute is void for obstructing a federal statute does rest on the Supremacy Clause of the Federal Constitution. And, third, there is some policy justification for a wider rule. In a broad sense, what concerned the legislators who passed the progenitor of § 2281 was the voiding of state legislation by inferior federal courts. The sensibilities of the citizens, and perhaps more particularly of the state officials, were less likely to be offended, the Congress thought, by a judgment considered and handed down by three judges rather than by one judge. This rationale can be thought to be as applicable to a suit voiding state legislation on grounds of conflict with a federal statute as it is to an identical suit alleging a conflict with the Federal Constitution directly.
21
Persuasive as these considerations may be, we believe that the reasons supporting the second interpretation, that is, returning to the traditional Buder-Bransford-Case rule, should carry the day. This restrictive view of the application of § 2281 is more consistent with a discriminating reading of the statute itself than is the first and more embracing interpretation. The statute requires a three-judge court in order to restrain the enforcement of a state statute 'upon the ground of the unconstitutionality of such statute.' Since all federal actions to enjoin a state enactment rest ultimately on the Supremacy Clause,24 the words 'upon the ground of the unconstitutionality of such statute' would appear to be superfluous unless they are read to exclude some types of such injunctive suits.25 For a simple provision prohibiting the restraint of the enforcement of any state statute except by a three-judge court would manifestly have sufficed to embrace every such suit whatever its particular constitutional ground. It is thus quite permissible to read the phrase in question as one of limitation, signifying a congressional purpose to confine the three-judge court requirement to injunction suits depending directly upon a substantive provision of the Constitution, leaving cases of conflict with a federal statute (or treaty) to follow their normal course in a single-judge court. We do not suggest that this reading of § 2281 is compelled. We do say, however, that it is an entirely appropriate reading, and one that is supported by all the precedents in this Court until Kesler and by sound policy considerations.
22
An examination of the origins of the three-judge procedure does not suggest what the legislators would have thought about this particular problem, but it does show quite clearly what sort of cases were of concern to them. Their ire was aroused by the frequent grants of injunctions against the enforcement of progressive state regulatory legislation, usually on substantive due process grounds. (See pp. 116—119, supra.) Requiring the collective judgment of three judges and accelerating appeals to this Court were designed to safeguard important state interests. In contrast, a case involving an alleged incompatibility between state and federal statutes, such as the litigation before us, involves more confining legal analysis and can hardly be thought to raise the worrisome possibilities that economic or political predilections will find their way into a judgment. Moreover, those who enacted the three-judge court statute should not be deemed to have been insensitive to the circumstance that single-judge decisions in conflict and pre-emption cases were always subject to the corrective power of Congress, whereas a 'constitutional' decision by such a judge would be beyond that ready means of correction and could be dealt with only by constitutional amendment. The purpose of § 2281 to provide greater restraint and dignity at the district court level cannot well be thought generally applicable to cases that involve conflicts between state and federal statutes, in this instance determining whether the Department of Agriculture's regulations as applied to the labeling of total net weight on frozen stuffed turkeys necessarily renders invalid a New York statute requiring a supplemental net weight figure which excludes the stuffing.
23
Our decision that three-judge courts are not required in Supremacy Clause cases involving only federal-state statutory conflicts, in addition to being most consistent with the statute's structure, with pre-Kesler precedent, and with the section's historical purpose, is buttressed by important considerations of judicial administration. As Mr. Justice Frankfurther observed in Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 92 93, 80 S.Ct. 568, 579—580 (dissenting opinion):
24
'(T)he convening of a three-judge trial court makes for dislocation of the normal structure and functioning of the lower federal courts, particularly in the vast non-metropolitan regions; and direct review of District Court judgments by this Court not only expands this Court's obligatory jurisdiction but contradicts the dominant principle of having this Court review decisions only after they have gone through two judicial sieves * * *.'
25
Although the number of three-judge determinations each year should not be exaggerated,26 this Court's concern for efficient operation of the lower federal courts persuades us to return to the Buder-Bransford-Case rule, thereby conforming with the constrictive view of the three-judge jurisdiction which this Court has traditionally taken. Ex parte Collins, 277 U.S. 565, 48 S.Ct. 585, 72 L.Ed. 990; Oklahoma Gas & Elec. Co. v. Oklahoma Packing Co., 292 U.S. 386, 54 S.Ct. 732, 78 L.Ed. 1318; Rorick v. Board of Commissioners, 307 U.S. 208, 59 S.Ct. 808, 83 L.Ed. 1242; Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800.
26
We hold therefore that this appeal is not properly before us under 28 U.S.C. § 1253 and that appellate review lies in the Court of Appeals, where appellants' alternative appeal is now pending. The appeal is dismissed for lack of jurisdiction
27
It is so ordered.
28
Appeal dismissed.
29
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice CLARK concur, dissenting.
30
Less than four years ago, this Court decided that a three-judge district court was required in suits brought under 28 U.S.C. § 2281, even though the alleged 'ground of the unconstitutionality' of the challenged statute was based upon a conflict between state and federal statutes. Kesler v. Department of Public Safety, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641.
31
A state statute may violate the Equal Protection Clause of the Fourteenth Amendment or the Due Process Clause or some other express provision of the Constitution. If so a three-judge court is plainly required by 28 U.S.C. § 2281. But the issue of the 'unconstitutionality' of a state statute can be raised as clearly by a conflict between it and an Act of Congress as by a conflict between it and a provision of the Constitution. The Supremacy Clause, contained in Art. VI, cl. 2, of the Constitution, states as much in clear language:
32
'This Constitution, and the Laws of the United States which shall be made in Pursuance thereof * * * shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.'
33
An issue of the 'unconstitutionality' of a state statute is therefore presented whether the conflict is between a provision of the Constitution and a state enactment or between the latter and an Act of Congress. What Senator Overman, author of the three-judge provision, said of it in 1910 is as relevant to enjoining a state law on the ground of federal pre-emption as it is to enjoining it because it violates the Fourteenth Amendment:
34
'The point is, this amendment is for peace and good order in the State. Whenever one judge stands up in a State and enjoins the governor and the attorney-general, the people resent it, and public sentiment is stirred, as it was in my State, when there was almost a rebellion, whereas if three judges declare that a state statute is unconstitutional the people would rest easy under it. But let one little judge stand up against the whole State, and you find the people of the State rising up in rebellion. The whole purpose of the proposed statute is for peace and good order among the people of the States.' 45 Cong.Rec. 7256.
35
Some of the most heated controversies between State and Nation which this Court has supervised have involved questions whether there was a conflict between a state statute and a federal one or whether a federal Act was so inclusive as to pre-empt state action in the particular area. One of the earliest and most tumultuous was Cohens v. Commonwealth of Virginia, 6 Wheat. 264, 440, 5 L.Ed. 257, where the alleged unconstitutionality of a Virginia law was based on the argument that an Act of Congress, authorizing a lottery in the District of Columbia, barred Virginia from making it a criminal offense to sell lottery tickets within that State. The protest from the States was vociferous1 even though the Court in the end construed the federal Act to keep it from operating in Virginia. Id., at 447. I therefore see no difference between a charge of 'unconstitutionality' of a state statute whether the conflict be between it and the Constitution or between it and a federal law. Neither the language of the Supremacy Clause nor reason nor history makes any difference plain.
36
Pre-emption or conflict of a state law with a federal one is a recurring theme2 arising in various contexts. The storm against Cohens v. Commonwealth of Virginia was a protest against this Court's acting as referee in a federal-state contest involving pre-emption or a conflict between the laws of the two regimes. Congress has recently been concerned with the problem in another aspect of the matter,3 when efforts were made to curb the doctrine of pre-emption by establishing standards for an interpretation of an Act of Congress.4 The three-judge court is only another facet of the self-same problem.
37
The history of 28 U.S.C. § 2281, as related by the Court speaks of the concern of Congress over the power of one judge to bring a halt to an entire state regulatory scheme. That can—and will hereafter—happen in all cases of pre-emption or conflict where the Supremacy Clause is thought to require state policy to give way. A fairly recent example is Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 62 S.Ct. 491, 86 L.Ed. 754, where a federal court injunction in a pre-emption case suspended Alabama's program for control of renovated butter—a demonstrably important health measure. The Court in Florida Lime & Avocado Growers v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568, where one of the issues was pre-emption or conflict between two statutory systems, emphasized that the interest of the States in being free from such injunctive interference at the instance of a single judge outweighed the additional burdens that such a rule imposed on the federal court system. On reflection I think that result better reflects congressional policy even though, as in Cohens v. Commonwealth of Virginia, the end result is only a matter of statutory construction.
38
On the basis of virtually no experience in applying that interpretation of the statute, a majority has now decided that the rule of Kesler is 'unworkable' and, therefore, that our previous interpretation of the statute must have been incorrect. I regret that I am unable to join in that decision. My objection is not that the Court has not given Kesler 'a more respectful burial,' Gideon v. Wainwright, 372 U.S. 335, 349, 83 S.Ct. 792, 799, 9 L.Ed.2d 799 (concurring opinion), but that the Court has engaged in unwarranted infanticide.
39
Stare decisis is no immutable principle.5 There are many occasions when this Court has overturned a prior decision, especially in matters involving an interpretation of the Constitution or where the problem of statutory construction had constitutional overtones.
40
An error in interpreting a federal statute may be easily remedied. If this Court has failed to perceive the intention of Congress, or has interpreted a statute in such a manner as to thwart the legislative purpose, Congress may change it. The lessons of experience are not learned by judges alone.
41
I am unable to find a justification for overturning a decision of this Court interpreting this Act of Congress, announced only on March 26, 1962.
42
If the Court were able to show that our decision in Kesler had thrown the lower courts into chaos, a fair case for its demise might be made out. The Court calls the rule 'unworkable.' But it is not enough to attach that label. The Court broadly asserts that 'lower courts have quite evidently sought to avoid dealing with its (Kesler's) application or have interpreted it with uncertainty.' For this proposition only three cases (in addition to the instant case) are cited. The Court's failure to provide more compelling documentation for its indictment of Kesler is not the result of less than meticulous scholarship, for so far as I have been able to discover, the truth of the matter is that there are no cases (not even the three cited) even remotely warranting the conclusion that Kesler is 'unworkable.'
43
Kesler was an attempt to harmonize our earlier cases. If the Kesler test is 'unworkable' as the Court asserts, we should nonetheless accept its basic premise:
44
'Neither the language of § 2281 nor the purpose which gave rise to it affords the remotest reason for carving out an unfrivolous claim of unconstitutionality because of the Supremacy Clause from the comprehensive language of § 2281.' 369 U.S., at 156, 82 S.Ct., at 810.
45
If there is overruling to be done, we should overrule Ex parte Buder, 271 U.S. 461, 46 S.Ct. 557, 70 L.Ed. 1036, and Ex parte Bransford, 310 U.S. 354, 60 S.Ct. 947, 84 L.Ed. 1249.
46
That the ground of unconstitutionality in many so-called Supremacy Clause cases is found only in the asserted conflict between federal and state statutes is, as I have said, no basis for distinguishing that class of cases from others in which three-judge courts are plainly required. While courts are, strictly speaking, engaging in statutory construction in such cases, the task of adjudication is much the same as in what all would concede to be constitutional adjudication. Though the purpose of Congress is the final touchstone, the interests which must be taken into account in either case are much the same, as Cohens v. Commonwealth of Virginia eloquently demonstrates.
47
The Court has decided, on no more than the gloomy predictions contained in a handful of law review articles, that Kesler would inevitably produce chaos in the federal courts, that the rule announced there is 'unworkable.' Those predictions have plainly not been borne out. If difficulties arise, Congress can cure them. Until Congress acts, I would let Kesler stand.
48
I therefore believe that a three-judge court was properly convened and that we should decide this appeal on the merits.
1
Section 457(b) declares:
'The use of any written, printed or graphic matter upon or accompanying any poultry product inspected or required to be inspected pursuant to the provisions of this chapter or the container thereof which is false or misleading in any particular is prohibited.'
Section 458(d) prohibits 'Using in commerce, or in a designated major consuming area, a false or misleading label on any poultry product.'
The Secretary of Agriculture is authorized by § 463 to issue regulations. 7 CFR § 81.125 requires containers to bear 'approved labels'; § 81.130(a)(3) declares that labels must include the net weight of the contents and that 'The net weight marked on containers of poultry products shall be the net weight of the poultry products and shall not include the weights of the wet or dry packaging materials and giblet wrapping materials.'
2
Section 193, subd. 3 provides:
'All food and food products offered for sale at retail and not in containers shall be sold or offered for sale by net weight, standard measure or numerical count under such regulations as may be prescribed by the commissioner.'
Net weight was not defined in the regulation, 1 NYCRR § 221.40 (now § 221.9(c)), but '(t)he Director of the Bureau of Weights and Measures of the Department testified that he interpreted the regulation, as applied to stuffed turkeys, to require statement of the net weight both of the unstuffed and of the stuffed bird, and that, when asked, he so advised local sealers of weights and measures.' Swift & Co. v. Wickham, 230 F.Supp. 398, 401 (1964).
3
The court below rejected appellants' Commerce Clause and Fourteenth Amendment arguments, held that there had been no federal pre-emption of this field of regulation, and, though implying strongly that the New York labeling requirements did not conflict with federal requirements, held that this question should first be passed upon at a higher federal administrative level.
4
The three-judge court dismissed the complaint 'certifying out of abundant caution' that the original district judge, also a member of the three-judge panel, 'individually arrived at the same conclusion.' 230 F.Supp., at 410. This procedure for minimizing prejudice to litigants when the jurisdiction of a three-judge court is unclear has been used before, see Query v. United States, 316 U.S. 486, 62 S.Ct. 1122, 86 L.Ed. 1616.
5
Mr. Justice Whittaker took no part in the decision of the case.
6
Mr. Justice Brennan and the present writer were included in the Kesler majority.
7
Act of June 18, 1910, c. 309, § 17, 36 Stat. 557.
8
See Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 3—9 (1964); Hutcheson, A Case for Three Judges, 47 Harv.L.Rev. 795 (1934); Warren, Federal and State Court Interference, 43 Harv.L.Rev. 345 (1930). For more contemporary accounts see, e.g., Baldwin, Presidential Address: The Progressive Unfolding of the Powers of the United States, VI Am.Pol.Sci.Rev. 1, 8—9 (1912); Scott, The Increased Control of State Activities by the Federal Courts, III Am.Pol.Sci.Rev. 347 (1909). Although various types of state legislation were being challenged in injunctive suits, see Lockwood, Maw, and Rosenberry, The Use of the Federal Injunction in Constitutional Litigation, 43 Harv.L.Rev. 426 (1930), most numerous and prominent were the railroad cases. Senator Overman noted that '* * * nine out of ten of the cases where application for an injunction has been made to test the constitutionality of state statutes have been railroad cases.' 45 Cong.Rec. 7254 (1910).
9
E.g., Spooner v. McConnell, 22 Fed.Cas. 939 (No. 13245) (1838).
10
See S. J. Buck, The Granger Movement, esp. 194—214, 231 237 (1913); Jackson, The Struggle for Judicial Supremacy 48—68 (1949); 2 Warren, The Supreme Court in United States History 574 599 (1935). For the related story of the use of the equity power in the labor field, see Frankfurter and Greene, The Labor Injunction (1930).
11
See Hutcheson, supra, at 803—804.
12
See, e.g., 45 Cong.Rec. 7253 (1910) (remarks of Senator Crawford). Although some litigation of this sort dragged on for as much as five years, ibid., it is not clear that most state courts were any more expeditious, see Lilienthal, The Federal Courts and State Regulation of Public Utilities, 43 Harv.L.Rev. 379, 417 and n. 176 (1930).
13
Senator Overman was probably referring to Southern R. Co. v. McNeill, 4 Cir., 155 F. 756 (1907). There, after an injunction had been sustained by the Circuit Court, the Governor publicly urged state officials to ignore it. The railway complained to the Court that 'these attacks on the part of the Governor and state officials against the company and its agents * * * had the effect of demoralizing the servants, agents, and employe § of the company to such an extent as to render it well nigh impossible for complainant to properly discharge the duties which it owed the public * * *.' Id., at 790—791.
14
The procedure was extended to cover challenges to orders of state administrative commissions in 1913, 37 Stat. 1013, 28 U.S.C. § 2281, and in 1925 suits for permanent injunctions were brought within its purview, 43 Stat. 938, 28 U.S.C. § 2281. Three-judge district courts are also required in certain suits arising under federal law. See Note, The Three-Judge District Court: Scope and Procedure Under Section 2281, 77 Harv.L.Rev. 299, 300—301 and n. 19 (1963).
15
See Hutcheson, supra, at 800—801. Senator Crawford of South Dakota told the Congress that when his State Legislature was debating a maximum rate law, the railway companies had already prepared motions for injunctions:
'The statute passed and was presented to the governor for his signature, and in less than an hour after he had signed the bill and it was filed in the office of the secretary of state a restraining order came by telegraph from a United States judge, enjoining the governor and the attorney-general and all the officers in the State from proceeding to enforce that statute.' 45 Cong.Rec. 7252 (1910).
16
See, id., at 7256 (remarks of Senator Crawford); note 12, supra.
17
This basic rule has been reiterated in other familiar cases where the facts did not require its application. See Query v. United States, 316 U.S. 486, 62 S.Ct. 1122, 86 L.Ed. 1616, where, however, a three-judge court was found necessary because other not insubstantial constitutional claims had been clearly asserted. In Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568, the majority held that if a state statute is sought to be enjoined on constitutional grounds (Commerce Clause, Equal Protection) it did not matter that a 'nonconstitutional' ground (pre-emption by the Federal Agricultural Marketing Agreement Act) was also asserted. Mr. Justice Frankfurter dissented, reasoning that the three-judge procedure should be read narrowly and that the mere availability of a 'non-constitutional' basis for enjoining the state statute should give jurisdiction to a single judge. Both majority and dissent assumed that an attack upon a state enactment on the ground that it was inconsistent with a federal statute was such a 'non-constitutional' ground.
18
None of these cases can be read to suggest that the result depends on whether or not the complaint specifically invokes the Supremacy Clause, for that clause is the inevitable underpinning for the striking down of a state enactment which is inconsistent with federal law. See the quotation from Bransford, supra, p. 121, a case in which the Supremacy Clause was not invoked in the complaint. See also the discussion of Ex parte Buder, supra, pp. 120-121. Nor do any of these cases suggest that the issue turns on the amount of statutory construction involved, whether large, small, or simply of the character that entails laying the alleged conflicting statutes side by side.
19
In dissent it was stated that the Kesler opinion 'refutes the very test which it establishes.' 369 U.S., at 177, 82 S.Ct., at 821 (dissenting opinion of THE CHIEF JUSTICE). In addition, three Justices dissented in whole or in part from the conclusions derived from this statutory analysis.
20
See Currie, supra, at 61—64 (1964); Note, 77 Harv.L.Rev. 299, 313—315 (1963); Note, 49 Va.L.Rev. 538, 553—555 (1963); 76 Harv.L.Rev. 168 (1962); 15 Stan.L.Rev. 565 (1963); 1962 U.Ill.L.F. 467; 111 U.Pa.L.Rev. 113 (1962).
21
See Borden Co. v. Liddy, 8 Cir., 309 F.2d 871; American Travelers Club, Inc. v. Hostetter, D.C., 219 F.Supp. 95, 102, n. 7.
22
See, in addition to the case before us, Bartlett & Co. Grain v. State Corp. Comm'n of Kansas, D.C., 223 F.Supp. 975.
23
'Neither the language of § 2281 nor the purpose which gave rise to it affords the remotest reason for carving out an unfrivolous claim of unconstitutionality because of the Supremacy Clause from the comprehensive language of § 2281.' 369 U.S., at 156, 82 S.Ct. at 810.
24
Art. VI, cl. 2. 'This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.'
25
The 'unconstitutionality' clause of § 2281 can hardly be thought to encompass the voiding of a state statute for inconsistency with the state constitution. Cf. Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80, 80 S.Ct. 568, 573.
26
The statistics are summarized in Note; 77 Harv.L.Rev. 299, 303—305 (1963); Note, 72 Yale L.J. 1646, 1654—1659 (1963). The most recent figures show that out of the 11,485 trials completed in district courts in fiscal 1965, only 147 were heard by three-judge courts. Of these 60 dealt with I.C.C. regulations, 35 with civil rights, and only 52 with state or local law. 1965 Dir.Adm.Off. U.S. Courts Ann.Rep. II—25, II—28.
1
See 1 Warren, The Supreme Court in United States History, p. 552 et seq. (1928).
'The Richmond Enquirer spoke of the opinion, 'so important in its consequences and so obnoxious in its doctrines,' and said that 'the very title of the case is enough to stir one's blood.' It feared that 'the Judiciary power, with a foot as noiseless as time and a spirit as greedy as the grave, is sweeping to their destruction the rights of the States. * * * These encroachments have increased, are increasing and ought to be diminished'; and it advocated a repeal of the fatal Section of the Judiciary Act as 'the most advisable and constitutional remedy for the evil.' A leading Ohio paper spoke of 'the alarming progress of the Supreme Court in subverting the Federalist principles of the Constitution and introducing on their ruins a mighty consolidated empire fitted for the sceptre of a great monarch'; and it continued: 'That the whole tenor of their decisions, when State-Rights have been involved, have had a direct tendency to reduce our governors to the condition of mere provincial satraps, and that a silent acquiescence in these decisions will bring us to this lamentable result, is to us as clear as mathematical demonstration." Id., at 552—553.
2
Thus the dissent in Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 179, 62 S.Ct. 491, 507, 86 L.Ed. 754, called that decision in favor of pre-emption 'purely destructive legislation.' And see Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447; Campbell v. Hussey, 368 U.S. 297, 82 S.Ct. 327, 7 L.Ed.2d 299; Cf. Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 84 S.Ct. 1293, 12 L.Ed.2d 350.
3
H.R. 3, 88th Cong., 1st Sess., in material part provided:
'No Act of Congress shall be construed as indicating an intent on the part of Congress to occupy the field in which such Act operates, to the exclusion of all State laws on the same subject matter, unless such Act contains an express provision to that effect, or unless there is a direct and positive conflict between such Act and a State law so that the two cannot be reconciled or consistently stand together.'
The first version of the bill was introduced in 1956. The House Committee on the Judiciary made numerous changes, limiting its application to the subject of subversion, and reported the bill out with a 'do pass' recommendation. H.R.Rep. No. 2576, 84th Cong., 2d Sess. The Senate version, S. 3143, was not so narrowed in Committee. S.Rep. No. 2230, 84th Cong., 2d Sess. The bill was not passed in either the House or the Senate.
H.R. 3 was again introduced in the Eighty-fifth Congress. The Judiciary Committee again recommended that the bill 'do pass,' but this time did not narrow its scope to the subject of subversion. See H.R.Rep. No. 1878, 85th Cong., 2d Sess. It was passed by the House on July 17, 1958.
H.R. 3, having once again been approved by the Judiciary Committee, H.R.Rep. No. 422, 86th Cong., 1st Sess., was approved by the House on June 24, 1959.
In the Eighty-seventh Congress, H.R. 3 was favorably reported out by the Judiciary Committee. H.R.Rep. No. 1820, 87th Cong., 2d Sess., but was not acted upon by the full House.
4
The concern of Congress in this chapter of federal-state relations did not concern the three-judge court problem but the broader aspects envisaged by such cases as Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640, Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035, Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, Railway Employes v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112, and Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 62 S.Ct. 491, 86 L.Ed. 754. See H.R.Rep. No. 1820, 87th Cong., 2d Sess., p. 3 et seq.
5
See Radin, Case Law and Stare Decisis, 33 Col.L.Rev. 199 (1933).
| 89
|
382 U.S. 145
86 S.Ct. 272
15 L.Ed.2d 217
UNITED STEELWORKERS OF AMERICA, AFL-CIO, Petitioner,v.R. H. BOULIGNY, INC.
No. 19.
Argued Oct. 21, 1965.
Decided Nov. 22, 1965.
Michael H. Gottesman, Washington, D.C., for petitioner.
Joseph W. Grier, Jr., Charlotte, N.C., for respondent.
Mr. Justice FORTAS delivered the opinion of the Court.
1
Respondent, a North Carolina corporation, brought this action in a North Carolina state court. It sought $200,000 in damages for defamation alleged to have occurred during the course of the United Steelworkers' campaign to unionize respondent's employees. The Steelworkers, an unincorporated labor union whose principal place of business purportedly is Pennsylvania, removed the case to a Federal District Court.1 The union asserted not only federal-question jurisdiction, but that for purposes of the diversity jurisdiction it was a citizen of Pennsylvania, although some of its members were North Carolinians.
2
The corporation sought to have the case remanded to the state courts, contending that its complaint raised no federal questions and relying upon the generally prevailing principle that an unincorporated association's citizenship is that of each of its members. But the District Court retained jurisdiction. The District Judge noted 'a trend to treat unincorporated associations in the same manner as corporations and to treat them as citizens of the state wherein the principal office is located.' Divining 'no common sense reason for treating an unincorporated national labor union differently from a corporation,' he declined to follow what he styled 'the poorer reasoned but more firmly established rule' of Chapman v. Barney, 129 U.S. 677, 9 S.Ct. 426, 32 L.Ed. 800.
3
On interlocutory appeal the Court of Appeals for the Fourth Circuit reversed and directed that the case be remanded to the state courts. 336 F.2d 160. Certiorari was granted, 379 U.S. 958, 85 S.Ct. 666, 13 L.Ed.2d 554, so that we might decide whether an unincorporated labor union is to be treated as a citizen for purposes of federal diversity jurisdiction, without regard to the citizenship of its members.2 Because we believe this properly a matter for legislative consideration which cannot adequately or appropriately be dealt with by this Court, we affirm the decision of the Court of Appeals.
4
Article III, § 2, of the Constitution provides:
5
'The judicial Power shall extend * * * to Controversies * * * between Citizens of different States * * *.'
6
Congress lost no time in implementing the grant. In 1789 it provided for federal jurisdiction in suits 'between a citizen of the State where the suit is brought, and a citizen of another State.'3 There shortly arose the question as to whether a corporation—a creature of state law—is to be deemed a 'citizen' for purposes of the statute. This Court, through Chief Justice Marshall, initially responded in the negative, holding that a corporation was not a 'citizen' and that it might sue and be sued under the diversity statute only if none of its shareholders was a co-citizen of any opposing party. Bank of United States v. Deveaux, 5 Cranch 61, 3 L.Ed. 38. In 1844 the Court reversed itself and ruled that a corporation was to be treated as a citizen of the State which created it. Louisville, C. & C.R. Co. v. Letson, 2 How. 497, 11 L.Ed. 353. Ten years later, the Court reached the same result by a different approach. In a compromise destined to endure for over a century,4 the Court indulged in the fiction that, although a corporation was not itself a citizen for diversity purposes, its shareholders would conclusively be presumed citizens of the incorporating State. Marshall v. Baltimore & O.R. Co., 16 How. 314, 14 L.Ed. 953.
7
Congress re-entered the lists in 1875, significantly expanding diversity jurisdiction by deleting the requirement imposed in 1789 that one of the parties must be a citizen of the forum State.5 The resulting increase in the quantity of diversity litigation, however, cooled enthusiasts of the jurisdiction, and in 1887 and 1888 Congress enacted sharp curbs. It quadrupled the jurisdictional amount, confined the right of removal to nonresident defendants, reinstituted protections against jurisdiction by collusive assignment, and narrowed venue.6
8
It was in this climate that the Court in 1889 decided Chapman v. Barney, supra. On its own motion the Court observed that plaintiff was a joint stock company and not a corporation or natural person. It held that although plaintiff was endowed by New York with capacity to sue, it could not be considered a 'citizen' for diversity purposes. 129 U.S., at 682, 9 S.Ct., at 427.7
9
In recent years courts and commentators have reflected dissatisfaction with the rule of Chapman v. Barney.8 The distinction between the 'personality' and 'citizenship' of corporations and that of labor unions and other unincorporated associations, it is increasingly argued, has become artificial and unreal. The mere fact that a corporation is endowed with a birth certificate is, they say, of no consequence. In truth and in fact, they point out, many voluntary associations and labor unions are indistinguishable from corporations in terms of the reality of function and structure, and to say that the latter are juridical persons and 'citizens' and the former are not is to base a distinction upon an inadequate and irrelevant difference. They assert, with considerable merit, that it is not good judicial administration, nor is it fair, to remit a labor union or other unincorporated association to vagaries of jurisdiction determined by the citizenship of its members and to disregard the fact that unions and associations may exist and have an identity and a local habitation of their own.
10
The force of these arguments in relation to the diversity jurisdiction is particularized by petitioner's showing in this case. Petitioner argues that one of the purposes underlying the jurisdiction—protection of the nonresident litigant from local prejudice—is especially applicable to the modern labor union. According to the argument, when the nonresident defendant is a major union, local juries may be tempted to favor local interests at its expense. Juries may also be influenced by the fear that unionization would adversely affect the economy of the community and its customs and practices in the field of race relations. In support of these contentions, petitioner has exhibited material showing that during organizational campaigns like that involved in this case, localities have been saturated with propaganda concerning such economic and racial fears. Extending diversity jurisdiction to unions, says petitioner, would make available the advantages of federal procedure, Article III judges less exposed to local pressures than their state court counterparts, juries selected from wider geographical areas, review in appellate courts reflecting a multistate perspective, and more effective review by this Court.
11
We are of the view that these arguments, however appealing, are addressed to an inappropriate forum, and that pleas for extension of the diversity jurisdicton to hitherto uncovered broad categories of litigants ought to be made to the Congress and not to the courts.
12
Petitioner urges that in People of Puerto Rico v. Russell & Co., 288 U.S. 476, 53 S.Ct. 447, 77 L.Ed. 903, we have heretofore breached the doctrinal wall of Chapman v. Barney and, that step having been taken, there is now no necessity for enlisting the assistance of Congress. But Russell does not furnish the precedent which petitioner seeks. The problem which it presented was that of fitting an exotic creation of the civil law, the sociedad en comandita, into a federal scheme which knew it not. The Organic Act of Pureto Rico conferred jurisdiction upon the federal court if all the parties on either side of a controversy were citizens of a foreign state or 'citizens of a State, Territory, or District of the United States not domiciled in Porto Rico.'9 All of the sociedad's members were nonresidents of Puerto Rico, and jurisdiction lay in the federal court if they were the 'parties' to the action. But this Court held that the sociedad itself, not its members, was the party, doing so on a basis that is of no help to petitioner. It did so because, as Justice Stone stated for the Court, in '(t)he tradition of the civil law, as expressed in the Code of Puerto Rico,' 'the sociedad is consistently regarded as a juridical person.' 288 U.S., at 480—481, 53 S.Ct., at 448—449. Accordingly, the Court held that the sociedad, Russell & Co., was a citizen domiciled in Puerto Rico, within the meaning of the Organic Act, and ordered the case remanded to the insular courts. It should be noted that the effect of Russell was to contract jurisdiction of the federal court in Puerto Rico.10
13
If we were to accept petitioner's urgent invitation to amend diversity jurisdiction so as to accommodate its case, we would be faced with difficulties which we could not adequately resolve. Even if the record here were adequate, we might well hesitate to assume that petitioner's situation is sufficiently representative or typical to form the predicate of a general principle. We should, for example, be obliged to fashion a test for ascertaining of which State the labor union is a citizen. Extending the jurisdiction to corporations raised no such problem, for the State of incorporation was a natural candidate, its arguable irrelevance in terms of the policies underlying the jurisdiction being outweighed by its certainty of application. But even that easy and apparent solution did not dispose of the problem; in 1958 Congress thought it necessary to enact legislation providing that corporations are citizens both of the State of incorporation and of the State in which their principal place of business is located.11 Further, in contemplating a rule which would accommodate petitioner's claim, we are acutely aware of the complications arising from the circumstance that petitioner, like other labor unions, has local as well as national organizations and that these, perhaps, should be reckoned with in connection with 'citizenship' and its jurisdictional incidents.12
14
Whether unincorporated labor unions ought to be assimilated to the status of corporations for diversity purposes, how such citizenship is to be determined, and what if any related rules ought to apply, are decisions which we believe suited to the legislative and not the judicial branch, regardless of our views as to the intrinsic merits of petitioner's argument—merits stoutly attested by widespread support for the recognition of labor unions as juridical personalities.13
15
We affirm the decision below.
1
28 U.S.C. § 1441(a) (1964 ed.) provides: 'Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.'
2
Petitioner does not here challenge the Court of Appeals' finding with respect to the absence of federal-question jurisdiction. Mention of this finding is omitted from the 'statement of the case' portion of petitioner's brief. Instead, petitioner expresses an intention, on remand of this case, to raise a different issue—that libel suits brought against unions for conduct arising in the course of an organizational campaign are within the exclusive jurisdiction of the National Labor Relations Board and may not be the subject of litigation, at least initially, in state or federal court. Compare Linn v. United Plant Guard Workers of America, Local 114, 337 F.2d 68 (C.A.6th Cir.), cert. granted, 381 U.S. 923, 85 S.Ct. 1558, 14 L.Ed.2d 682, with Meyer v. Joint Council 53, Intern'l Bro. of Teamsters, etc., 416 Pa. 401, 206 A.2d 382, petition for cert. dismissed under Rule 60, 382 U.S. 897, 86 S.Ct. 193.
3
1 Stat. 78.
4
See 72 Stat. 415 (1958), 28 U.S.C. § 1332(c), providing that: 'For the purposes of this section and section 1441 of this title, a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.'
5
18 Stat. 470.
6
24 Stat. 552, 553, as amended by 25 Stat. 434. On the historical background of these changes in the diversity jurisdiction see generally, Moore and Weckstein, Diversity Jurisdiction: Past, Present, and Future, 43 Tex.L.Rev. 1 (1964); Moore and Weckstein, Corporations and Diversity of Citizenship Jurisdiction: A Supreme Court Fiction Revisited, 77 Harv.L.Rev. 1426 (1964); Hart and Wechsler, The Federal Courts and the Federal System 891—943 (1953).
7
Equally responsive to the congressional intent as manifested in 1887 and 1888 was the Court's decision in 1892 in Shaw v. Quincy Mining Co., 145 U.S. 444, 12 S.Ct. 935, 36 L.Ed. 768, holding that in a diversity suit a corporation could only be sued in the State of incorporation, even though its principal place of business was elsewhere.
8
See Mason v. American Express Co., 334 F.2d 392 (C.A.2d Cir.); 78 Harv.L.Rev. 1661 (1965); 53 Geo.L.J. 513 (1965); 65 Col.L.Rev. 162 (1965); American Fed. of Musicians v. Stein, 213 F.2d 679, 685—689 (C.A.6th Cir.), cert. denied, 348 U.S. 873, 75 S.Ct. 108, 99 L.Ed. 687, suggesting that a trial court might find a union to be a citizen for diversity purposes—a suggestion rejected on remand, 183 F.Supp. 99 (D.C.M.D.Tenn.); and Van Sant v. American Express Co., 169 F.2d 355 (C.A.3d Cir.); Comment, 1965 Duke LJ. 329; Note, Unions as Juridicial Persons, 66 Yale L.J. 712, 742—749 (1957). Cf. Swan v. First Church of Christ, Scientist, in Boston, 225 F.2d 745 (C.A.9th Cir.). But see Brocki v. American Express Co., 279 F.2d 785 (C.A.6th Cir.), cert. denied, 364 U.S. 871, 81 S.Ct. 113, 5 L.Ed.2d 92; Underwood v. Maloney, 256 F.2d 334 (C.A.3d Cir.), cert. denied, 358 U.S. 864, 79 S.Ct. 93, 3 L.Ed.2d 97; A. H. Bull Steamship Co. v. N.M.E.B.A., 250 F.2d 332 (C.A.2d Cir.), each of which takes a more conventional view.
9
The federal district court in Puerto Rico had jurisdiction 'of all cases cognizable in the district courts of the United States' and 'of all controversies where all of the parties on either side of the controversy are citizens or subjects of a foreign State or States, or citizens of a State, Territory, or District of the United States not domiciled in Porto Rico * * *,' § 41, Organic Act of Puerto Rico of 1917, 39 Stat. 965 (now 48 U.S.C. § 863). See 70 Stat. 658 (1956), amending 28 U.S.C. § 1332, relating to the treatment of the Commonwealth of Puerto Rico for diversity purposes.
10
As the Court noted in Russell, 288 U.S., at 482, 53 S.Ct., at 449, the effect of its decision was to prevent nonresidents from organizing sociedads to carry on business in Puerto Rico and then 'remove from the insular courts controversies arising under local law.' The Court of Appeals for the Second Circuit in Mason, 334 F.2d, at 397, n. 8, seems to assert that Russell had the effect of broadening the diversity jurisdiction. We do not agree. At the time Russell was decided, Puerto Rico was not considered a 'State' for purposes of the federal diversity jurisdiction statute. Accordingly, a sociedad, although recognized as a citizen of Puerto Rico in Russell, could not avail itself of the general diversity statute.
11
See note 4, supra.
12
The American Law Institute has proposed that for diversity purposes unincorporated associations be deemed citizens of the States in which their principal places of business are located, but that they be disabled from initiating diversity litigation in States where they maintain 'local establishments.' ALI, Study of the Division of Jurisdiction Between State and Federal Courts, Proposed Final Draft No. 1 (1965), §§ 1301(b)(2) and 1302(b). Compare 29 U.S.C. § 185(c), which provides: 'For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members.'
13
See, e.g., United Mines Workers of America v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975; Rule 17(b) of the Fed.Rules Civ.Proc; ALI, Study, supra; 3 Moore, Federal Practice 17.25 (2d ed., 1964); Note, Unions as Juridical Persons, 66 Yale L.J. 712 (1957). Cf. 78 Stat. 445 (1964), which amended 28 U.S.C. § 1332(c) to confer citizenship upon insurers, 'whether incorporated or unincorporated,' involved in direct-action suits; Note, Developments in the Law—Judicial Control of Actions of Private Associations, 76 Harv.L.Rev. 983, 1080—1100 (1963).
| 89
|
382 U.S. 136
86 S.Ct. 279
15 L.Ed.2d 210
UNITED STATES, Petitioner,v.Frank ROMANO et al.
No. 2.
Argued Oct. 14, 1965.
Decided Nov. 22, 1965.
Louis F. Claiborne, Washington, D.C., for petitioner.
W. Paul Flynn, New Haven, Conn., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
Federal officers, armed with a search warrant, entered one of the buildings in an industrial complex in Jewett City, Connecticut. There they found respondents standing a few feet from an operating still. Respondents1 were indicted on three counts: Count 1 charged possession, custody and control of an illegal still in violation of 26 U.S.C. § 5601(a)(1);2 Count 2, the illegal production of distilled spirits in violation of 26 U.S.C. § 5601(a)(8);3 and Count 3, a conspiracy to produce distilled spirits. Both respondents were convicted on all three counts, both were fined on Count 1 and both sentenced to concurrent terms of imprisonment on each of the three counts.
2
The Court of Appeals affirmed the convictions on Count 3. 330 F.2d 566. It reversed the convictions on Counts 1 and 2 because the trial court in instructing the jury read verbatim provisions of § 5601(b)(1)4 and s 5601(b)(4),5 which provide in part that the presence of the defendant at the site of an illegal still 'shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury * * *.' This instruction and the statutory inference which it embodied were held by the Court of Appeals to violate the Due Process Clause of the Fifth Amendment. We granted certiorari to consider this constitutional issue. 380 U.S. 941, 85 S.Ct. 1020, 13 L.Ed.2d 961.
3
We agree as to the invalidity of § 5601(b)(1) and the reversal of the convictions on Count 1. It is unnecessary, however, to consider the validity of § 5601(b)(4) and the convictions on Count 2 since the sentences on that count were concurrent with the sentences, not here challenged, which were imposed on Count 3. United States v. Gainey, 380 U.S. 63, 65, 85 S.Ct. 754, 756, 13 L.Ed.2d 658; Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 273, 73 L.Ed. 692.
4
If we were reviewing only the sufficiency of the evidence to support the verdict on Count 1, that conviction would be sustained. There was, as the Court of Appeals recognized, ample evidence in addition to presence at the still to support the charge of possession of an illegal still. But here, in addition to a standard instruction on reasonable doubt, the jury was told that the defendants' presence at the still 'shall be deemed sufficient evidence to authorize conviction.' This latter instruction may have been given considerable weight by the jury; the jury may have disbelieved or disregarded the other evidence of possession and convicted these defendants on the evidence of presence alone. We thus agree with the Court of Appeals that the validity of the statutory inference in the disputed instruction must be faced and decided.
5
The test to be applied to the kind of statutory inference involved in this criminal case is not in dispute. In Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519, the Court, relying on a line of cases dating from 1910,6 reaffirmed the limits which the Fifth and Fourteenth Amendments place 'upon the power of Congress or that of a state legislature to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated.' Id., at 467, 63 S.Ct., at 1245. Such a legislative determination would not be sustained if there was 'no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. * * * (W)here the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them it is not competent for the legislature to create it as a rule governing the procedure of courts.' Id., at 467—468, 63 S.Ct., at 1245. Judged by this standard, the statutory presumption in issue there was found constitutionally infirm.
6
Just last Term, in United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658, the Court passed upon the validity of a companion section to § 5601(b)(1) of the Internal Revenue Code. The constitutionality of the legislation was held to depend upon the 'rationality of the connection 'between the facts proved and the ultimate fact presumed." 380 U.S., at 66, 85 S.Ct., at 757. Tested by this rule, the Court sustained the provision of 26 U.S.C. § 5601(b)(2) declaring presence at a still to be sufficient evidence to authorize conviction under 26 U.S.C. § 5601(a)(4) for carrying on the business of the distillery without giving the required bond. Noting that almost anyone at the site of a secret still could reasonably be said to be carrying on the business or aiding and abetting it and that Congress had accorded the evidence of presence only its 'natural probative force,' the Court sustained the presumption.
7
This case is markedly different from Gainey, supra. Congress has chosen in the relevant provisions of the Internal Revenue Code to focus upon various phases and aspects of the distilling business and to make each of them a separate crime. Count 1 of this indictment charges 'possession, custody and * * * control' of an illegal still as a separate, distinct offense. Section 5601(a)(1) obviously has a much narrower coverage than has § 5601(a)(4) with its sweeping prohibition of carrying on a distilling business.
8
In Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818, the Court squarely held, and the United States conceded, that presence alone was insufficient evidence to convict of the specific offense proscribed by § 5601(a)(1), absent some evidence that the defendant engaged in conduct directly related to the crime of possession, custody or control. That offense was confined to those who had 'custody or possession' of the still or acted in some 'other capacity calculated to facilitate the custody or possession, such as, for illustration, service as a caretaker, watchman, lookout, or in some other capacity.' Id., at 164, 67 S.Ct., at 648. This requirement was not satisfied in the Bozza case either by the evidence showing participation in the distilling operations or by the fact that the defendant helped to carry the finished product to delivery vehicles. These facts, and certainly mere presence at the still, were insufficient proof that 'petitioner ever exercised, or aided the exercise of, any control over the distillery.' Ibid.
9
Presence at an operating still is sufficient evidence to prove the charge of 'carrying on' because anyone present at the site is very probably connected with the illegal enterprise. Whatever his job may be, he is at the very least aiding and abetting the substantive crime of carrying on the illegal distilling business. Section 5601(a)(1), however, proscribes possession, custody or control. This is only one of the various aspects of the total undertaking, many of which have nothing at all to do with possession, as Bozza made quite clear and as the United States conceded in that case. Presence tells us only that the defendant was there and very likely played a part in the illicit scheme. But presence tells us nothing about what the defendant's specific function was and carries no legitimate, rational or reasonable inference that he was engaged in one of the specialized functions connected with possession, rather than in one of the supply, delivery or operational activities having nothing to do with possession. Presence is relevant and admissible evidence in a trial on a possession charge; but absent some showing of the defendant's function at the still, its connection with possession is too tenuous to permit a reasonable inference of guilt—'the inference of the one from proof of the other is arbitrary * * *.' Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519.
10
The United States has presented no cases in the courts which have sustained a conviction for possession based solely on the evidence of presence. All of the cases which deal with this issue and with which we are familiar have held presence alone, unilluminated by other facts, to be insufficient proof of possession.7 Moreover, the Government apparently concedes in this case that except for the circumstances surrounding the adoption of the 1958 amendments to the Internal Revenue Code, which added the presumptions relating to illegal distilling operations, the crime of possession could not validly be inferred from mere presence at the still site.8
11
According to the Government, however, the 1958 amendments were, among other things, designed to overrule Bozza and must be viewed as broadening the substantive crime of possession to include all those present at a set-up still who have any connection with the illicit enterprise.9 So broadened, it is argued, the substantive crime of 'possessing', under the teachings of Gainey, could be acceptably proved by showing presence alone.
12
We are not persuaded by this argument, primarily because the amendments did not change a word of § 5601(a)(1), which defines the substantive crime. Possession, custody or control remains the crime which the Government must prove. The amendments, insofar as relevant here, simply added § 5601(b)(1) and permitted an inference of possession from the fact of presence. Moreover, the inference was not irrebuttable. It was allowable only if the defendant failed to explain his presence to the satisfaction of the jury. Plainly, it seems to us, the defendant would be exonerated if he satisfactorily explained or the circumstances showed that his function at the still was not in furtherance of the specific crime of possession, custody or control. If a defendant is charged with possession and it is unmistakably shown that delivery, for example, was his sole duty, it would seem very odd under the present formulation of the Code to hold that his explanation had merely proved his guilt of 'possessing' by showing some connection with the illegal business.
13
The Government's position would equate 'possessing' with 'carrying on.' We are not convinced that the amendments to the Code included in the Excise Tax Technical Changes Act of 1958 were intended to work any such substantive change in the basic scheme of the Act, which was in the words of the Government's brief in this Court, 'to make criminal every meaningful form of participation in, or assistance to, the operation of an illegal still by an elaborate pattern of partially redundant provisions some specific and some general—designed to close all loopholes.' Possession, custody or control was one of the specific crimes defined in the Code and we do not think that the 1958 amendments worked any change in this regard.10 On the legislative record before us, we reject the Government's expansive reading of the 1958 amendments.
14
Congress may have intended by the 1958 amendments to avoid the Bozza case. But it chose to do so, not by changing the definition of the substantive crime, but by declaring presence to be sufficient evidence to prove the crime of possession beyond reasonable doubt. This approach obviously fails under the standards traditionally applied to such legislation. It may be, of course, that Congress has the power to make presence at an illegal still a punishable crime, but we find no clear indication that it intended to so exercise this power.11 The crime remains possession, not presence, and, with all due deference to the judgment of Congress, the former may not constitutionally be inferred from the latter.
15
Affirmed.
16
Mr. Justice BLACK concurs in the reversal of these convictions for the reasons stated in his dissent against affirmance of the conviction in United States v. Gainey, 380 U.S. 63, 74, 85 S.Ct. 754, 761, 13 L.Ed.2d 658.
17
Mr. Justice DOUGLAS concurs in the result for the reasons stated in his opinion in United States v. Gainey, 380 U.S. 63, 71, 85 S.Ct. 754, 760, 13 L.Ed.2d 658.
18
Mr. Justice FORTAS concurs in the result.
1
Respondents were indicted with two others whose convictions are not in issue here.
2
Section 5601(a)(1) provides that any person who 'has in his possession or custody, or under his control, any still or distilling apparatus set up which is not registered, as required by section 5179(a) * * * shall be fined not more than $10,000, or imprisoned not more than 5 years, or both * * *.'
3
Section 5601(a)(8) provides that any person who, 'not being a distiller authorized by law to produce distilled spirits, produces distilled spirits by distillation or any other process from any mash, wort, wash, or other material * * * shall be fined not more than $10,000, or imprisoned not more than 5 years, or both * * *.'
4
Section 5601(b)(1) of 26 U.S.C. provides: 'Whenever on trial for violation of subsection (a)(1) the defendant is shown to have been at the site or place where, and at the time when, a still or distilling apparatus was set up without having been registered, such presence of the defendant shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury (or of the court when tried without jury).'
5
Section 5601(b)(4) of 26 U.S.C. provides: 'Whenever on trial for violation of subsection (a)(8) the defendant is shown to have been at the site or place where, and at the time when, such distilled spirits were produced by distillation or any other process from mash, wort, wash, or other material, such presence of the defendant shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury (or of the court when tried without jury).'
6
Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78; Bailey v. State of Alabama, 219 U.S. 219, 31 S.Ct. 145, 55 L.Ed. 191; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369; McFarland v. American Sugar Rfg. Co., 241 U.S. 79, 36 S.Ct. 498, 60 L.Ed. 899; Manley v. State of Georgia, 279 U.S. 1, 49 S.Ct. 215, 73 L.Ed. 575; Western & Atlantic R. Co. v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884; Morrison v. People of State of California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664.
7
E.g., Pugliese v. United States, 343 F.2d 837 (C.A.1st Cir., 1965); Barrett v. United States, 322 F.2d 292 (C.A.5th Cir., 1963), rev'd on other grounds, sub nom. United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658; McFarland v. United States, 273 F.2d 417 (C.A.5th Cir., 1960) (dictum); Vick v. United States, 216 F.2d 228 (C.A.5th Cir., 1954); United States v. De Vito, 68 F.2d 837 (C.A.2d Cir., 1934); Graceffo v. United States, 46 F.2d 852 (C.A.3d Cir., 1931).
8
Brief for petitioner, p. 14. See also brief for petitioner, p. 33, United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658; Bozza v. United States, 330 U.S. 160, 164, 67 S.Ct. 645, 647, 91 L.Ed. 818.
9
The relevant Senate and House Reports discussing the presumptions added by § 5601(b) are in identical language, which was borrowed from an analysis prepared by the Alcohol and Tobacco Tax Division of the Internal Revenue Service (see Hearings before a Subcommittee of the House Committee on Ways and Means on Excise Tax Technical and Administrative Problems, Part I, 84th Cong., 1st Sess., p. 208):
'These paragraphs are new. Their purpose is to create a rebuttable presumption of guilt in the case of a person who is found at illicit distilling or rectifying premises, but who, because of the practical impossibility of proving his actual participation in the illegal activities except by inference drawn from his presence when the illegal acts were committed, cannot be convicted under the ruling of the Supreme Court in Bozza v. United States, (330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818).
'The prevention of the illicit production or rectification of alcoholic spirits, and the consequent defrauding of the United States of tax, has long been rendered more difficult by the failure to obtain a conviction of a person discovered at the site of illicit distilling or rectifying premises, but who was not, at the time of such discovery, engaged in doing any specific act.
'In the Bozza case, the Supreme Court took the position that to sustain conviction, the testimony 'must point directly to conduct within the narrow margins which the statute alone defines.' These new provisions are designed to avoid the effect of that holding as to future violations.' S.Rep. No. 2090, 85th Cong., 2d Sess., pp. 188—189, U.S.Code Cong. & Admin.News 1958, p. 4580; H.R.Rep. No. 481, 85th Cong., 1st Sess., p. 175.
10
In reference to the re-enactment of § 5601(a)(1), the provision that defines the substantive offense, the Reports merely say, 'This paragraph is a restatement of existing law * * *.' S.Rep. No. 2090, 85th Cong., 2d Sess., p. 186, U.S.Code Cong. & Adm.News 1958, p. 4577; H.R.Rep. No. 481, 85th Cong., 1st Sess., p. 173.
11
The Government advanced a somewhat similar contention in Tot. It was rejected, partly on the ground that it was not supported by legislative history. Tot v. United States, 319 U.S. 463, 472, 63 S.Ct. 1241, 1247, 87 L.Ed. 1519. Cf. United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260.
| 34
|
382 U.S. 159
86 S.Ct. 305
15 L.Ed.2d 227
MARYLAND for the Use of Nadine Y. LEVIN et al.v.UNITED STATES.
No. 345.
Supreme Court of the United States
October Term, 1964.
November 22, 1965
Theodore E. Wolcott, for petitioners.
Solicitor General Marshall, former Solicitor General Cox, Assistant Attorney General Douglas, Morton Hollander, Nathan Lewin and David L. Rose, for the United States.
Louis G. Davidson, Richard W. Galiher, William E. Stewart, Jr., and Peter J. McBreen, as amici curiae.
On Petition for Rehearing.
PER CURIAM.
1
The petition for rehearing and the motion to remand for trial on unresolved issues are granted as herein indicated. The judgment of this Court of May 3, 1965, 381 U.S. 41, 85 S.Ct. 1293, 14 L.Ed.2d 205, is vacated, and in lieu thereof the following judgment is entered: 'The judgment of the Court of Appeals for the Third Circuit is modified to direct that the case be remanded to the United States District Court for the Western District of Pennsylvania for further proceedings with respect to the unresolved issues tendered in petitioners' bill of complaint, and is in all other respects affirmed.'
2
It is so ordered.
3
Mr. Justice CLARK and Mr. Justice HARLAN, believing that a remand is legally unjustified, dissent from that part of the Court's order.
4
Mr. Justice FORTAS took no part in the consideration or decision of this case.
| 89
|
382 U.S. 154
86 S.Ct. 277
15 L.Ed.2d 223
SEABOARD AIR LINE R. CO.v.UNITED STATES. INTERSTATE COMMERCE COMMISSION v. FLORIDA EAST COAST RAILWAY CO.
Nos. 425, 555.
Decided Nov. 22, 1965.
Paul A. Porter, Dennis G. Lyons, Harold J. Gallagher, Walter H. Brown, Jr., Richard A. Hollander, Edwin H. Burgess, Prime F. Osborn, Albert B. Russ, Jr., and Phil C. Beverly, for appellants Seaboard Air Line R. Co. and others.
Robert W. Ginnane and Fritz R. Kahn, for appellant Interstate Commerce Commission.
Solicitor General Marshall, Assistant Attorney General Turner and Lionel Kestenbaum, for the United States.
A. Alvis Layne and Fred H. Kent, for appellee Florida East Coast railway co.
W. Graham Claytor, Jr., for appellee Southern Ry. Co.
Edward J. Hickey, Jr., and William G. Mahoney, for appellee Railway Labor Executives' Ass'n.
PER CURIAM.
1
Atlantic Coast Line Railroad Company and Seaboard Air Line Railroad Company filed with the Interstate Commerce Commission an application for authority to merge. In the administrative proceedings, the applicants contended that the merger would enable them to lower operating costs, improve service, and eliminate duplicate facilities; other carriers opposed the merger on the ground that it would have adverse competitive effects; and the Department of Justice contended that the merger would create a rail monopoly in central and western Florida.
2
The Commission approved the merger, subject to routing and gateway conditions to protect competing railroads. It recognized that the merger would eliminate competition and create a rail monopoly in parts of Florida. But it found that the merged lines carried only a small part of the total traffic in the area involved; that ample rail competition would remain therein; and that the reduction in competition would 'have no appreciably injurious effect upon shippers and communities.' Seaboard Air Line Railroad Co., 320 I.C.C. 122, 167. In addition, the Commission noted that the need to preserve intramodal rail competition had diminished, due to the fact that railroads were increasingly losing traffic to truck, water, and other modes of competition.
3
A three-judge District Court set aside the order and remanded the case to the Commission for further proceedings. It concluded that the Commission's analysis of the competitive effects of the merger was fatally defective because the Commission had not determined whether the merger violated § 7 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 18 (1964 ed.), by reference to the relevant product and geographic markets. By thus disposing of the case, the District Court did not reach the ultimate question whether the merger would be consistent with the public interest despite the foreseeable injury to competition.1
4
We believe that the District Court erred in its interpretation of the directions this Court set forth in McLean Trucking Co. v. United States, 321 U.S. 67, 64 S.Ct. 370, 88 L.Ed. 544 (1944), and Minneapolis & St. Louis R. Co. v. United States, 361 U.S. 173, 80 S.Ct. 229, 4 L.Ed.2d 223 (1959). As we said in Minneapolis at 186, 80 S.Ct. at 237:
5
'Although § 5(11) does not authorize the Commission to 'ignore' the antitrust laws, McLean Trucking Co. v. United States, 321 U.S. 67, 80, 64 S.Ct. 370, 88 L.Ed. 544, there can be 'little doubt that the Commission is not to measure proposals for (acquisitions) by the standards of the antitrust laws.' 321 U.S. at pages 85—86, 64 S.Ct. at page 379. The problem is one of accommodation of § 5(2) and the antitrust legislation. The Commission remains obligated to 'estimate the scope and appraise the effects of the curtailment of competition which will result from the proposed (acquisition) and consider them along with the advantages of improved service (and other matters in the public interest) to determine whether the (acquisition) will assist in effectuating the over-all transportation policy.' 321 U.S. at page 87, 64 S.Ct. at page 381.'
6
The same criteria should be applied here to the proposed merger. It matters not that the merger might otherwise violate the antitrust laws; the Commission has been authorized byn the Congress to approve the merger of railroads if it makes adequate findings in accordance with the criteria quoted above that such a merger would be 'consistent with the public interest.' 54 Stat. 906, 49 U.S.C. § 5(2)(b) (1964 ed.).
7
Whether the Commission has confined itself within the statutory limits upon its discretion and has based its findings on substantial evidence are questions for the trial court in the first instance, United States v. Great Northern R. Co., 343 U.S. 562, 578, 72 S.Ct. 985, 994, 96 L.Ed. 1142 (1952), and we indicate no opinion on the same. We therefore vacate the judgment of the District Court and remand the case to it for a full review of the administrative order and findings pursuant to the standards enunciated by this Court.
8
Vacated and remanded.
9
Mr. Justice FORTAS took no part in the consideration or decision of these cases.
1
It expressly declined to consider two further issues, i.e., whether the Commission's labor-protection conditions were adequate and whether control of the merged company by the Mercantile-Safe Deposit and Trust Company would be consistent with the public interest.
| 78
|
382 U.S. 158
86 S.Ct. 304
15 L.Ed.2d 226
UNITED STATESv.MARYLAND for the Use of Mary Jane MEYER et al.
No. 543.
Supreme Court of the United States
October Term, 1963.
November 22, 1965
Rehearing Denied Jan. 17, 1966.
See 382 U.S. 1001, 86 S.Ct. 525.
Solicitor General Cox, Assistant Attorney General Douglas, Morton Hollander and David L. Rose, for the United States.
Louis G. Davidson, Richard W. Galiher, William E. Stewart, Jr., and Peter J. McBreen, for respondents.
On Petition for Rehearing.
PER CURIAM.
1
The motion for leave to file a conditional petition for rehearing is granted and the petition for rehearing is also granted. The order of December 16, 1963, 375 U.S. 954, 84 S.Ct. 445, 11 L.Ed.2d 314, denying the petition for writ of certiorari is vacated, and the petition for writ of certiorari is granted. The judgment of the Court of Appeals for the District of Columbia Circuit is reversed in conformity with our decision in Maryland for the Use of Levin et al. v. United States, 381 U.S. 41, 85 S.Ct. 1293, 14 L.Ed.2d 205, and the case is remanded to the United States District Court for the District of Columbia for further proceedings with respect to the unresolved issues tendered in respondents' bill of complaint.
2
It is so ordered.
3
Mr. Justice CLARK and Mr. Justice HARLAN, believing that a remand is legally unjustified, dissent from that part of the Court's order.
4
Mr. Justice FORTAS took no part in the consideration or decision of this case.
| 78
|
382 U.S. 172
86 S.Ct. 347
15 L.Ed.2d 247
WALKER PROCESS EQUIPMENT, INC., Petitioner,v.FOOD MACHINERY AND CHEMICAL CORPORATION.
No. 13.
Argued Oct. 12, 13, 1965.
Decided Dec. 6, 1965.
Charles J. Merriam, Chicago, Ill., for petitioner.
Daniel M. Friedman, Washington, D.C., for the United States, as amicus curiae.
Sheldon O. Collen, Chicago, Ill., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
The question before us is whether the maintenance and enforcement of a patent obtained by fraud on the Patent Office may be the basis of an action under § 2 of the Sherman Act,1 and therefore subject to a treble damage claim by an injured party under § 4 of the Clayton Act.2 The respondent, Food Machinery, & Chemical Corp. (hereafter Food Machinery), filed this suit for infringement of its patent No. 2,328,655 covering knee-action swing diffusers used in aeration equipment for sewage treatment systems.3 Petitioner, Walker Process Equipment, Inc. (hereafter Walker), denied the infringement and counterclaimed for a declaratory judgment that the patent was invalid. After discovery, Food Machinery moved to dismiss its complaint with prejudice because the patent had expired. Walker then amended its counterclaim to charge that Food Machinery had 'illegally monopolized interstate and foreign commerce by fraudulently and in bad faith obtaining and maintaining * * * its patent * * well knowing that it had no basis for * * * a patent.' It alleged fraud on the basis that Food Machinery had sworn before the Patent Office that it neither knew nor believed that its invention had been in public use in the United States for more than one year prior to filing its patent application when, in fact, Food Machinery was a party to prior use within such time. The counterclaim further asserted that the existence of the patent had deprived Walker of business that it would have otherwise enjoyed. Walker prayed that Food Machinery's conduct be declared a violation of the antitrust laws and sought recovery of treble damages.
2
The District Court granted Food Machinery's motion and dismissed its infringement complaint along with Walker's amended counterclaim, without leave to amend and with prejudice. The Court of Appeals for the Seventh Circuit affirmed, 335 F.2d 315. We granted certiorari, 379 U.S. 957, 85 S.Ct. 657, 13 L.Ed.2d 553. We have concluded that the enforcement of a patent procured by fraud on the Patent Office may be violative of § 2 of the Sherman Act provided the other elements necessary to a § 2 case are present. In such event the treble damage provisions of § 4 of the Clayton Act would be available to an injured party.
I.
3
As the case reaches us, the allegations of the counterclaim, as to the fraud practiced upon the Government by Food Machinery as well as the resulting damage suffered by Walker are taken as true.4 We, therefore, move immediately to a consideration of the legal issues presented.
4
Both Walker and the United States, which appears as amicus curiae, argue that if Food Machinery obtained its patent by fraud and thereafter used the patent to exclude Walker from the market through 'threats of suit' and prosecution of this infringement suit, such proof would establish a prima facie violation of § 2 of the Sherman Act. On the other hand, Food Machinery says that a patent monopoly and a Sherman Act monopolization cannot be equated; the removal of the protection of a patent grant because of fraudulent procurement does not automatically result in a § 2 offense. Both lower courts seem to have concluded that proof of fraudulent procurement may be used to bar recovery for infringement, Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 65 S.Ct. 993, 89 L.Ed. 1381 (1945), but not to establish invalidity. As the Court of Appeals expressed the proposition, 'only the government may 'annul or set aside' a patent,' citing Mowry v. Whitney, 14 Wall. 434, 20 L.Ed. 858 (1872). It went on to state that no case had 'decided, or hinted that fraud on the Patent Office may be turned to use in an original affirmative action, instead of as an equitable defense. * * * Since Walker admits that its anti-trust theory depends on its ability to prove fraud on the Patent Office, it follows that * * * Walker's second amended counterclaim failed to state a claim upon which relief could be granted.' 335 F.2d, at 316.
II.
5
We have concluded, first, that Walker's action is not barred by the rule that only the United States may sue to cancel or annul a patent. It is true that there is no statutory authority for a private annulment suit and the invocation of the equitable powers of the court might often subject a patentee 'to innumerable vexatious suits to set aside his patent.' Mowry, supra, 81 U.S. at 441. But neither reason applies here. Walker counterclaimed under the Clayton Act, not the patent laws. While one of its elements is the fraudulent procurement of a patent, the action does not directly seek the patent's annulment. The gist of Walker's claim is that since Food Machinery obtained its patent by fraud it cannot enjoy the limited exception to the prohibitions of § 2 of the Sherman Act, but must answer under that section and § 4 of the Clayton Act in treble damages to those injured by any monopolistic action taken under the fraudulent patent claim. Nor can the interest in protecting patentees from 'innumerable vexatious suits' be used to frustrate the assertion of rights conferred by the antitrust laws. It must be remembered that we deal only with a special class of patents, i.e., those procured by intentional fraud.
6
Under the decisions of this Court a person sued for infringement may challenge the validity of the patent on various grounds, including fraudulent procurement. E.g., Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 65 S.Ct. 993, 89 L.Ed. 1381 (1945); Hazel-Atlas Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944); Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 54 S.Ct. 146, 78 L.Ed. 293 (1933). In fact, one need not await the filing of a threatened suit by the patentee; the validity of the patent may be tested under the Declaratory Judgment Act, 28 U.S.C. § 2201 (1964 ed.). See Kerotest Mfg. Co. v. C—O Two Fire Equipment Co., 342 U.S. 180, 185, 72 S.Ct. 219, 222, 94 L.Ed. 200 (1952). At the same time, we have recognized that an injured party may attack the misuse of patent rights. See, e.g., Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376 (1944). To permit recovery of treble damages for the fraudulent procurement of the patent coupled with violations of § 2 accords with these long-recognized procedures. It would also promote the purposes so well expressed in Precision Instrument, supra, 324 U.S. at 816, 65 S.Ct. at 998:
7
'A patent by its very nature is affected with a public interest. * * * (It) is an exception to the general rule against monopolies and to the right to access to a free and open market. The far-reaching social and economic consequences of a patent, therefore, give the public a paramount interest in seeing that patent monopolies spring from backgrounds free from fraud or other inequitable conduct and that such monopolies are kept within their legitimate scope.'
III.
8
Walker's counterclaim alleged that Food Machinery obtained the patent by knowingly and willfully misrepresenting facts to the Patent Office. Proof of this assertion would be sufficient to strip Food Machinery of its exemption from the antitrust laws.5 By the same token, Food Machinery's good faith would furnish a complete defense. This includes an honest mistake as to the effect of prior installation upon patentability—so-called 'technical fraud.'
9
To establish monopolization or attempt to monopolize a part of trade or commerce under § 2 of the Sherman Act, it would then be necessary to appraise the exclusionary power of the illegal patent claim in terms of the relevant market for the product involved. Without a definition of that market there is no way to measure Food Machinery's ability to lessen or destroy competition. It may be that the device—knee-action swing diffusers—used in sewage treatment systems does not comprise a relevant market. There may be effective substitutes for the device which do not infringe the patent. This is a matter of proof, as is the amount of damages suffered by Walker.
10
As respondent points out, Walker has not clearly articulated its claim. It appears to be based on a concept of per se illegality under § 2 of the Sherman Act. But in these circumstances, the issue is premature. As the Court summarized in White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963), the area of per se illegality is carefully limited. We are reluctant to extend it on the bare pleadings and absent examination of market effect and economic consequences.
11
However, even though the per se claim fails at this stage of litigation, we believe that the case should be remanded for Walker to clarify the asserted violations of § 2 and to offer proof thereon. The trial court dismissed its suit not because Walker failed to allege the relevant market, the dominance of the patented device therein, and the injurious consequences to Walker of the patent's enforcement, but rather on the ground that the United States alone may 'annul or set aside' a patent for fraud in procurement. The trial court has not analyzed any economic data. Indeed, no such proof has yet been offered because of the disposition below. In view of these considerations, as well as the novelty of the claim asserted and the paucity of guidelines available in the decided cases, this deficiency cannot be deemed crucial. Fairness requires that on remand Walker have the opportunity to make its § 2 claims more specific, to prove the alleged fraud, and to establish the necessary elements of the asserted § 2 violation.
12
Reversed and remanded.
13
Mr. Justice HARLAN (concurring).
14
I join the Court's opinion. I deem it appropriate, however, to add a few comments to what my Brother CLARK has written because the issue decided is one of first impression and to allay possible misapprehension as to the possible reach of this decision.
15
We hold today that a treble-damage action for monopolization which, but for the existence of a patent, would be violative of § 2 of the Sherman Act may be maintained under § 4 of the Clayton Act if two conditions are satisfied: (1) the relevant patent is shown to have been procured by knowing and willful fraud practiced by the defendant on the Patent Office or, if the defendant was not the original patent applicant, he had been enforcing the patent with knowledge of the fraudulent manner in which it was obtained; and (2) all the elements otherwise necessary to establish a § 2 monopolization charge are proved. Conversely, such a private cause of action would not be made out if the plaintiff: (1) showed no more than invalidity of the patent arising, for example, from a judicial finding of 'obviousness,' or from other factors sometimes compendiously referred to as 'technical fraud'; or (2) showed fraudulent procurement, but no knowledge thereof by the defendant; or (3) failed to prove the elements of a § 2 charge even though he has established actual fraud in the procurement of the patent and the defendant's knowledge of that fraud.
16
It is well also to recognize the rationale underlying this decision, aimed of course at achieving a suitable accommodation in this area between the differing policies of the patent and antitrust laws. To hold, as we do, that private suits may be instituted under § 4 of the Clayton Act to recover damages for Sherman Act monopolization knowingly practiced under the guise of a patent procured by deliberate fraud, cannot well be thought to impinge upon the policy of the patent laws to encourage inventions and their disclosure. Hence, as to this class of improper patent monopolies, antitrust remedies should be allowed room for full play. On the other hand, to hold, as we do not, that private antitrust suits might also reach monopolies practiced under patents that for one reason or another may turn out to be voidable under one or more of the numerous technicalities attending the issuance of a patent, might well chill the disclosure of inventions through the obtaining of a patent because of fear of the vexations or punitive consequences of treble-damage suits. Hence, this private antitrust remedy should not be deemed available to reach § 2 monopolies carried on under a nonfraudulently procured patent.
17
These contrasting factors at once serve to justify our present holding and to mark the limits of its application.
1
26 Stat. 209, 15 U.S.C. § 2 (1964 ed.):
'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 * * *.'
2
38 Stat. 731, 15 U.S.C. § 15 (1964 ed.):
'Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover three-fold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee.'
3
The patent in question was issued in the name of the inventor, Lannert. But he had previously assigned the patent rights to his employer, Chicago Pump Company, a division of Food Machinery.
4
See, e.g., United States v. New Wrinkle, Inc., 342 U.S. 371, 376, 72 S.Ct. 350, 352, 96 L.Ed. 417 (1952).
5
This conclusion applies with equal force to an assignee who maintains and enforces the patent with knowledge of the patent's infirmity.
| 78
|
382 U.S. 204
86 S.Ct. 396
15 L.Ed.2d 270
Aaron SOLOMONv.SOUTH CAROLINA.
No. 588.
Appeal from the Supreme Court of South Carolina.
Ellis Lyons, for appellant.
Daniel R. McLeod, Atty. Gen. of South Carolina, and E. N. Brandon, Asst. Atty. Gen., for appellee.
Dec. 6, 1965.
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 is of the opinion that the judgment should be reversed on the authority of Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965. And see McGowan v. State of Maryland, 366 U.S. 420, 561, 577, 81 S.Ct. 1101, 1218, 1226, 6 L.Ed.2d 393 (dissenting opinion).
3
Mr. Justice BRENNAN and Mr. Justice STEWART are of the opinion that probable jurisdiction should be noted.
| 23
|
382 U.S. 198
86 S.Ct. 358
15 L.Ed.2d 265
Patricia ROGERS et al.v.Edgar F. PAUL et al.
No. 532.
Dec. 6, 1965.
Jack Greenberg, James M. Nabrit III, Derrick A. Bell, Jr., and George Howard, Jr., for petitioners.
John P. Woods, for respondents.
PER CURIAM.
1
The petition for writ of certiorari to the Court of Appeals for the Eighth Circuit and the motion to add parties are granted. The judgment of that court is vacated and the case is remanded to the District Court for the Western District of Arkansas for further proceedings consistent with this opinion.
2
1. This class action to desegregate the public high schools of Fort Smith, Arkansas, was commenced several years ago in the name of two Negro students. One of the students has since graduated and the other has entered the last high school grade. A motion to add parties is made on behalf of two additional Negro students. It is alleged therein, and not denied by respondents, that these students are in the 10th and 11th grades of high school and that they are members of the class represented, seeking the same relief for all the reasons offered by the original party plaintiffs. That motion is accordingly granted.
3
2. The desegregation plan adopted in 1957 desegregates only one grade a year and the 10th, 11th and 12th high school grades are still segregated. The students who are petitioners here were assigned to a Negro high school on the basis of their race.1 Those assignments are constitutionally forbidden not only for the reasons stated in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, but also because petitioners are thereby prevented from taking certain courses offered only at another high school limited to white students, see State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; Sipuel v. Board of Regents, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247; Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114. Petitioners are entitled to immediate relief; we have emphasized that '(d)elays in desegregating school systems are no longer tolerable.' Bradley v. School Board, 382 U.S. 103, at 105, 86 S.Ct. 224, at 226. Pending the desegregation of the public high schools of Fort Smith according to a general plan consistent with this principle, petitioners and those similarly situated shall be allowed immediate transfer to the high school that has the more extensive curriculum and from which they are excluded because of their race.
4
3. From the outset of these proceedings petitioners have challenged an alleged policy of respondents of allocating faculty on a racial basis. The District Court took the view that petitioners were without standing to challenge the alleged policy, and accordingly refused to permit any inquiry into the matter. The Court of Appeals sustained this ruling, holding that only students presently in desegregated grades would have the standing to make that challenge. 345 F.2d 117, 125. We do not agree and remand for a prompt evidentiary hearing on this issue.
5
Even the Court of Appeals' requirement for standing would be met on remand since petitioners' transfer to the white high school would desegregate their grades to that limited extent. Moreover, we reject the Court of Appeals' view of standing as being unduly restrictive. Two theories would give students not yet in desegregated grades sufficient interest to challenge racial allocation of faculty: (1) that racial allocation of faculty denies them equality of educational opportunity without regard to segregation of pupils; and (2) that it renders inadequate an otherwise constitutional pupil desegregation plan soon to be applied to their grades. See Bradley v. School Board, supra. Petitioners plainly had standing to challenge racial allocation of faculty under the first theory and thus they were improperly denied a hearing on this issue.
6
Vacated and remanded.
7
Mr. Justice CLARK, Mr. Justice HARLAN, Mr. Justice WHITE and mr. Justice FORTAS would set the case down for argument and plenary consideration.
1
The constitutional adequacy of the method chosen for assigning students to the schools for purpose of desegregating the lower grades is not before us, and the method contemplated for the high schools is not part of the record.
| 12
|
382 U.S. 181
86 S.Ct. 327
15 L.Ed.2d 254
The HANNA MINING COMPANY et al., Petitioners,v.DISTRICT 2, MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO, et al.
No. 7.
Argued Oct. 12, 1965.
Decided Dec. 6, 1965.
[Syllabus from pages 181-183 intentionally omitted]
John H. Hanninen, McCreary Hinslea & Ray, Cleveland, Ohio, for petitioners.
Lee Pressman, New York City, for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
The present controversy once again brings before the Court the troublesome question of where lies the line between permissible and federally preempted state regulation of union activities.
I.
2
Petitioners ('Hanna') are four corporations whose integrated fleet of Great Lakes vessels carriers cargo in interstate and foreign commerce and is operated by one of the four, the Hanna Mining Company. The respondent District 2, Marine Engineers Beneficial Association ('MEBA')1 represented the licensed marine engineers in Hanna's fleet under a collective bargaining agreement terminating on July 15, 1962. According to Hanna, while negotiations for a new contract continued during August 1962, a majority of the marine engineers informed Hanna by written petitions that they did not wish to be represented by MEBA. Hanna then declined to negotiate further until MEBA's majority status was established by a secret ballot. Without acquiescing in this proposal or questioning any of the employee signatures on the petitions, MEBA responded on September 12, 1962, by picketing one of Hanna's ships unloading at a dock in Duluth, Minnesota, with signs giving the ship's name, stating that Hanna unfairly refused to negotiate with MEBA, and indicating that no dispute existed with any other employer. Because of the continued picketing, dock workers refused day after day to unload the ship. From September 12 until shipping ended for the winter, MEBA similarly picketed Hanna ships at other Great Lakes ports, including Superior, Wisconsin.
3
Hanna turned first to the National Labor Relations Board. On September 12, it petitioned the Regional Director at Cleveland, Ohio, to hold a representation election among Hanna's engineers to prove or disprove MEBA's majority status. The petition was dismissed at the end of September on the stated ground that the engineers were 'supervisors' under § 2(11) of the National Labor Relations Act,2 and automatically excluded from the Act's definition of 'employees' under § 2(3),3 so election proceedings under § 9 were not warranted;4 giving the same reason, the Board in November declined to overturn this decision.5 As a second measure, Hanna on September 15, 1962, filed charges with the Regional Director in Minneapolis, Minnesota, alleging that MEBA had violated § 8(b)(4)(B) of the Act,6 by inducing work stoppages among dockers at Duluth through improper secondary pressure. In October, the Regional Director dismissed the charges and the General Counsel sustained the dismissal in December, stating that MEBA's conduct at Duluth and at other sites investigated did not exceed the bounds of lawful picketing under the Board's standards.7 Hanna's third and last appeal to the Board came on September 27, 1962, when it filed charges with the Regional Director in Cleveland, Ohio, accusing MEBA of organizational or recognitional picketing improper under § 8(b)(7) of the Act.8 The Regional Director dismissed the charge in October and in the next two months the General Counsel affirmed the dismissal because in seeking to represent 'supervisors' rather than 'employees' MEBA fell outside the section.9
4
Winter brought an end to both shipping and picketing for several months but when the navigation season opened in the spring of 1963 MEBA pickets once more appeared. After picketing occurred at Superior, Wisconsin, Hanna filed suit on June 24, 1963, in a Wisconsin circuit court. The complaint and affidavits alleged that MEBA was picketing Hanna's vessels at the docks of the Great Northern Railway Company at Superior in the same manner as the 1962 picketing and with the same improper aim of forcing its representation on unwilling engineers; Hanna stated that workers of other employers were refusing to render service to Hanna's vessels and it prayed for injunctive relief against further picketing of the vessels and the docks where they berthed and against any other attempt of MEBA to impose representation on Hanna engineers. The Circuit Court dismissed the suit in July for lack of jurisdiction over the subject matter. In April 1964 the Wisconsin Supreme Court affirmed the decision. 23 Wis.2d 433, 127 N.W.2d 393. While agreeing that the picketing could be deemed illegal under Wisconsin law,10 that court held that the picketing arguably violated §§ 8(b)(4)(B) and 8(b)(7) of the federal labor Act and so fell within the Board's exclusive jurisdiction marked out in San Diego Bldg. Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775. In light of other language in Garmon the Wisconsin Supreme Court held that the General Counsel's dismissal of charges under §§ 8(b)(4)(B) and 8(b)(7) did not foreclose the possibility of a preempting violation, even assuming the 1963 picketing in Superior mirrored the 1962 picketing in Duluth. We invited the views of the United States, 379 U.S. 942, 85 S.Ct. 439, granted certiorari, 380 U.S. 941, 85 S.Ct. 1022, 13 L.Ed.2d 961, and now reverse and remand.
II.
5
The ground rules for preemption in labor law, emerging from our Garmon decision, should first be briefly summarized: in general, a State may not regulate conduct arguably 'protected by § 7, or prohibited by § 8' of the National Labor Relations Act, see 359 U.S., at 244—246, 79 S.Ct. at 780; and the legislative purpose may further dictate that certain activity 'neither protected nor prohibited' be deemed privileged against state regulation, cf. 359 U.S., at 245, 79 S.Ct. at 779. For the reasons that follow, we believe the Board's decision that Hanna engineers are supervisors removes from this case most of the opportunities for preemption.
6
When in 1947 the National Labor Relations Act was amended to exclude supervisory workers from the critical definition of 'employees,' § 2(3), it followed that many provisions of the Act employing that pivotal term would cease to operate where supervisors were the focus of concern. Most obviously, § 7 no longer bestows upon supervisory employees the rights to engage in self-organization, collective bargaining, and other concerted activities11 under the umbrella of § 8 of the Act, as amended, 61 Stat. 140, 29 U.S.C. § 158 (1964 ed.). See National Labor Relations Board v. Edward G. Budd Mfg. Co., 6 Cir., 169 F.2d 571. Accordingly, activity designed to secure organization or recognition of supervisors cannot be protected by § 7 of the Act, arguably or otherwise. Compare National Labor Relations Board v. Drivers, Chauffeurs, Helpers, Local Union No. 639, 362 U.S. 274, 279, 80 S.Ct. 706, 709, 4 L.Ed.2d 710. Correspondingly, the situations in which that same activity can be prohibited by the Act, even arguably, are fewer than would be the case if employees were being organized or seeking recognition. There can be no breach of § 8(b)(7), curtailing organizational or recognitional picketing, because there cannot exist the forbidden objective of requiring representation of 'employees' by the picketing organization. Nor could one even advance the argument unsuccessfully urged in Drivers, Chauffeurs, Helpers, Local Union No. 639 that § 8(b)(1)(A), 61 Stat. 141, 29 U.S.C. § 158(b)(1)(A) (1964 ed.), condemns the picketing as restraint or coercion of employees exercising their § 7 right not to organize or bargain collectively.
7
Even though such efforts to unionize supervisors are not protected by the Act, or in the respects immediately relevant prohibited by it, the question arises whether Congress nonetheless desired that in their peaceful facets these efforts remain free from state regulation as well as Board authority. Compare Local 20, Teamsters, Chauffeurs and Helpers Union v. Morton, 377 U.S. 252, 258—260, 84 S.Ct. 1253, 1257—1259, 12 L.Ed.2d 280. Arguing that the States are indeed powerless in this respect, MEBA pitches its case chiefly on the 1947 amendment of the 'employee' definition and on the concurrent enactment of § 14(a) of the Act, 61 Stat. 151, 29 U.S.C. § 164(a) (1964 ed.), which provides in relevant part that '(n)othing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization * * *.' It is contended that the amendment and this section signify a federal policy of laissez faire toward supervisors ousting state as well as Board authority and, more particularly, that to allow the Wisconsin injunction would obliterate the opportunity for supervisor unions that Congress expressly reserved.
8
This broad argument fails utterly in light of the legislative history, for the Committee reports reveal that Congress' propelling intention was to relieve employers from any compulsion under the Act and under state law to countenance or bargain with any union of supervisory employees.12 Whether the legislators fully realized that their method of achieving this result incidentally freed supervisors' unions from certain limitations under the newly enacted § 8(b) is not wholly clear, but certainly Congress made no considered decision generally to exclude state limitations on supervisory organizing. As to the portion of § 14(a) quoted above, some legislative history suggests that it was not meant to immunize any conduct at all but only to make it 'clear that the amendments to the act do not prohibit supervisors from joining unions * * *.' S.Rep.No.105, 80th Cong., 1st Sess., p. 28; H.R.Conf.Rep.No. 510, 80th Cong., 1st Sess., p. 60 ('(T)he first part of this provision (§ 14(a)) was included presumably out of an abundance of caution.'). However, even assuming that § 14(a) itself intended also to make it clear that state law could not prohibit supervisors from joining unions, the section would have no application to the present facts; for picketing by a minority union to extract recognition by force of such pressures is decidedly not a sine qua non of collective bargaining, as indeed its limitation by § 8(b)(7) in nonsupervisor situations attests.
9
The remaining question in this phase of the case is whether the supervisory status of Hanna's engineers has been settled 'with unclouded legal significance,' Garmon, 359 U.S., at 246, 79 S.Ct. at 780, so as to preclude arguable application of the Act in the respects discussed. We hold that the Board's statement accompanying its refusal to order a representation election does resolve the question with the clarity necessary to avoid preemption. While MEBA does not contend that the Board erred in its determination, an abstract difficulty arises from the lack of a statutory channel for judicial review of such a Board decision. Compare Hotel Employees Local No. 255, Hotel and Restaurant Employees and Bartenders International Union v. Leedom, 358 U.S. 99, 79 S.Ct. 150, 3 L.Ed.2d 143 (equity action to obtain election). However, the usual deference to Board expertise in applying statutory terms to particular facts assures that its decision would in any event be respected in a high percentage of instances, and so diminished a risk of interference with federal labor policy does not justify use of the preemption doctrine to thwart state regulation bound to be legitimate on this score in almost all cases.
III.
10
A further basis for preemption, urged by MEBA and adopted by the Wisconsin Supreme Court, is that the picketing at Superior exerted secondary pressure arguably violating § 8(b)(4)(B). The argument appears to be that a state injunction banishing the pickets inevitably impinges upon the Board's authority to regulate facets of the picketing that might exceed 'primary' picketing and violate § 8(b)(4)(B)13—facets never specified by MEBA but presumably those that ignore the Board's limitations on time, location, and manner of common situs picketing. See Sailors' Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547. However, as will appear, no arguable violation exists if Hanna's proof lives up to its allegations; further, even assuming a violation, federal interests normally justifying preemption are absent from this case.
11
Hanna's claim that there is no arguable violation rests, of course, on the finding made by the Regional Director and the General Counsel in declining to issue a complaint under § 8(b)(4)(B) with respect to MEBA's 1962 picketing. The Wisconsin Supreme Court refused to credit this finding because of this Court's comment in Garmon that the 'refusal of the General Counsel to file a charge' is one of those dispositions 'which does not define the nature of the activity with unclouded legal significance.' 359 U.S., at 245—246, 79 S.Ct. at 780. This language allows more than one interpretation, but we take it not to apply to those refusals of the General Counsel which are illuminated by explanations that do squarely define the nature of the activity. The General Counsel has statutory 'final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints,' § 3(d) of the Act, as amended, 61 Stat. 139, 29 U.S.C. § 153(d) (1964 ed.) and his pronouncements in this context are entitled to great weight. The usual inability of the charging party to contest the General Counsel's adverse decision in the courts, see Hourihan v. National Labor Relations Board, 91 U.S.App.D.C. 316, 201 F.2d 187, does to be sure create a slight risk if state courts may proceed on this basis, but in the context of this case we believe the risk is too minimal to deserve recognition.
12
Even taking the General Counsel's ruling at face value, MEBA stresses that the § 8(b)(4)(B) charge by Hanna concerned picketing in Duluth in September 1962 while the picketing before the Wisconsin court occurred at Superior in spring 1963. Yet Hanna accompanied the 1962 charge with information as to the 1962 picketing in several ports including Superior. The Regional Director is said to have conducted an investigation in Superior as well as in Duluth, and the General Counsel's letter on the § 8(b)(4)(B) charge appeared to state that activity at the sites other than Duluth also did not violate the Act. See n. 7, supra. And while some months intervened between the fall 1962 picketing at Superior and its resumption at that port in spring 1963, Hanna has offered to prove that the picketing remained the same in all significant respects including the picket signs employed, the location of the pickets, and the pickets' general behavior. If this proof is furnished, the chance that the picketing sought to be enjoined conceals a § 8(b)(4)(B) violation seems remote indeed.
13
Additionally, even if a § 8(b)(4)(B) violation were present, central interests served by the Garmon doctrine are not endangered by a state injunction when, in an instance such as this, the Board has established that the workers sought to be organized are outside the regime of the Act. Cf. Incres S.S. Co. v. International Maritime Workers Union, 372 U.S. 24, 83 S.Ct. 611, 9 L.Ed.2d 557. Most importantly, the Board's decision on the supervisory question determines, as we have already shown, that none of the conduct is arguably protected nor does it fall in some middle range impliedly withdrawn from state control.14 Consequently, there is wholly absent the greatest threat against which the Garmon doctrine guards, a State's prohibition of activity that the Act indicates must remain unhampered.15
14
Nor is this a case in which the presence of arguably prohibited activity may permit the Board to afford complete protection to the legitimate interests advanced by the State. Since Hanna as the primary employer is present at the picketed situs, the primary picketing proviso of § 8(b)(4)(B) severely inhibits the Board's use of that section to reach the volatile core of the conduct, the impact on secondary employers that follows from the mere presence of the pickets at a common situs. Section 8(b)(7) which might provide full relief is rendered inapplicable by the supervisor ruling. Thus, so far as Garmon may proceed on the view that the opportunity belongs to the Board wherever it and the State offer duplicate relief, it has limited application to the present facts.16
15
In concluding that the Act does not preempt the State's authority to quench the picketing said to have occurred in this case, we do not retreat from Garmon. Rather, we consider that neither the terms nor the policies of that decision justify its extension to the present facts, an extension producing untoward results noted by the Wisconsin Supreme Court itself. 23 Wis.2d 433, 446, 127 N.W.2d 393, 399.
16
The judgment of the Supreme Court of Wisconsin is reversed and the case is remanded to that court for proceedings not inconsistent with this opinion.
17
It is so ordered.
18
Judgment of Supreme Court of Wisconsin reversed and case remanded with directions.
19
Mr. Justice BRENNAN, concurring.
20
I agree with the Court that § 14(a) does not evince a congressional decision to exclude state regulation of picketing aimed at organizing supervisors and securing the employer's recognition of the union. The question here, however, is whether Congress has excluded state regulation when that picketing also has secondary aspects arguably within the reach of § 8(b)(4)(B). I agree with the Court that state regulation is likewise not precluded in such case.
21
The proviso to § 8(b)(4)(B) expressly states '(t)hat nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.' (Emphasis supplied.) While Congress thus provided that primary picketing is not rendered unlawful under the Act merely by having secondary aspects, the italicized words of the proviso evince a congressional intention to leave undisturbed whatever other provisions of law regulate primary picketing. Ordinarily such regulation occurs under the National Labor Relations Act. The primary aspects of supervisory picketing are not, however, regulated by the federal Act; and I think the assumption that regulation will occur, which underlies the italicized words of the proviso is strong enough to support the Court's conclusion that state regulation of supervisory organizational picketing is not preempted.*
22
It is true that we said in Garmon that States have no power to regulate 'activities' arguably subject to the federal Act; picketing which, because of its secondary aspects, is arguably subject to § 8(b)(4)(B) is, by one construction, an 'activity.' But Garmon was not a case in which only incidental aspects of picketing were arguably subject to federal power and in which the alternative to state regulation was a regulatory void which Congress plainly assumed would not exist. In this limited context, it is permissible to distinguish the primary from the secondary aspects of the picketing, and hold that the States may regulate the former, although preempted as to the latter, and although the necessary effect of regulation curbs both secondary and primary aspects of the picketing. This choice seems more consistent with the congressional meaning, since the alternative is to immunize the primary aspects of such common-situs picketing from state regulation, and that alternative finds no support either in policy or in the statute. Thus, I think that the Wisconsin courts may consider so much of the complaint as is addressed to the primary aspects of MEBA's picketing.
1
The remaining respondents are officers, agents, and representatives of MEBA, and what is said of it in this opinion applies equally to them.
2
National Labor Relations Act, as amended, § 2(11), 61 Stat. 138, 29 U.S.C. § 152(11) (1964 ed.), gives a functional definition of the term 'supervisor.'
3
National Labor Relations Act, as amended, § 2(3), 61 Stat. 137, 29 U.S.C. § 152(3) (1964 ed.), provides in relevant part that the 'term 'employee' * * * shall not include * * * any individual employed as a supervisor * * *.'
4
National Labor Relations Act, as amended, § 9, 61 Stat. 143, 29 U.S.C. § 159 (1964 ed.), pertinently provides in subsection (c) that petitions may be entertained and elections ordered to determine 'the representative defined in subsection (a) of this section'; and subsection (a) pertinently provides that '(r)epresentatives designated or selected * * * by the majority of the employees in a unit * * * shall be the exclusive representatives of all the employees in such unit' for collective bargaining purposes.
5
In relevant part the Board's letter stated that as the 'appeal makes no affirmative claim that a majority of the 'employees' as distinguished from 'supervisors' are sought to be represented in an appropriate unit and as a unit of supervisors is otherwise inappropriate, no question concerning representation in an appropriate unit exists.' While this pronouncement could be clearer, the parties do not dispute that it affirms or refuses to disturb the Regional Director's explicit finding.
6
National Labor Relations Act, as amended, § 8(b)(4)(B), 73 Stat. 542, 29 U.S.C. § 158(b)(4)(B) (1964 ed.), provides in relevant part that it shall be an unfair labor practice for a labor organization or its agents:
'(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 * * * transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services * * * where * * * an object thereof is—
'(B) forcing or requiring any person to cease * * * 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 * * * certified * * * 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
The letter from the General Counsel's office stated in part: '(T)he evidence revealed that the picketing by MEBA at the common situs herein conformed to Moore Dry Dock standards * * *. Furthermore, MEBA's activity at other sites did not evince an unlawful object on the part of the Union inconsistent with the ostensibly primary object of the picketing at the situs of the dispute.'
8
National Labor Relations Act, as amended, § 8(b)(7), 73 Stat. 544, 29 U.S.C. § 158(b)(7) (1964 ed.), provides, excluding portions and exceptions not here relevant, that it is an unfair labor practice for a labor organization or its agents to picket any employer with an object of forcing '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 bargaining agent unless such labor organization is certified or seeks certification.
9
A second, clarifying letter from the General Counsel's office stated in part: 'Our disposition of this case was predicated solely on our conclusion that the supervisory status of the licensed engineers precluded a finding that the Union's picketing and other activity was for an object proscribed by Section 8(b)(7) of the Act.'
10
See Vogt, Inc. v. International Brotherhood of Teamsters, Local 695, 270 Wis. 315, 321a, 71 N.W.2d 359, 74 N.W.2d 749, aff'd sub nom. International Brotherhood of Teamsters, Local 695 v. Vogt, Inc., 354 U.S. 284, 77 S.Ct. 1166, 1 L.Ed.2d 1347.
11
National Labor Relations Act, as amended, § 7, 61 Stat. 140, 29 U.S.C. § 157 (1964 ed.), provides that 'employees' shall have the right to engage in, or in general to refrain from, the mentioned activities.
12
Summarizing the impact of the new measure on supervisory personnel, the Senate Report stated: '(T)he bill does not prevent anyone from organizing nor does it prohibit any employer from recognizing a union of foremen. It merely relieves employers who are subject to the national act free from any compulsion by this National Board or any local agency to accord to the front line of management the anomalous status of employees.' S.Rep.No.105, 80th Cong., 1st Sess., p. 5. See also H.R.Rep.No.245, 80th Cong., 1st Sess., pp. 13—17.
13
By contrast, sometimes offensive conduct may be restrained by a state remedy that has no impact at all on related activity arguably within the Board's exclusive province. See, e.g., Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151, upholding a state injunction against violence but setting it aside so far as it reached peaceful picketing.
14
Aside from the § 14(a) line of argument already answered, we do not find at all apposite Local 20, Teamsters, Chauffeurs and Helpers Union v. Morton, 377 U.S. 252, 84 S.Ct. 1253, holding a State powerless to award damages against a striking union for requesting a secondary employer to cease business with the struck employer. While in Morton preemption was premised on the fact that the secondary pressure did not come within the ban fixed by § 8(b)(4)(B) and adopted by § 303(a) of the Labor Management Relations Act, as amended, 73 Stat. 545, 29 U.S.C. § 187(a) (1964 ed.), the conduct there occurred in the context of a peaceful economic strike by employees, a sphere in which the federal interest is especially pervasive. By contrast the present case, involving secondary pressure wielded to impose representation on unwilling supervisors, finds itself at that far corner of labor law where, as we have shown, federal occupation is at a minimum and state power at a peak.
15
Hattiesburg Bldg. and Trades Council v. Broome Co., 377 U.S. 126, 84 S.Ct. 1156, 12 L.Ed.2d 172, cited to us by MEBA, may illustrate this concern. There, the union's organizational picketing at a common situs was enjoined by the State because its objective violated state law. In urging that the picketing's possible violation of § 8(b)(4)(B) preempted state authority, the Solicitor General suggested that it may also have been 'lawful picketing' outside the State's reach so far as not prohibited by the section. Memorandum, p. 6, n. 7. See also Michelman, State Power To Govern Concerted Employee Activities, 74 Harv.L.Rev. 641, 652—653 (1961) (citations omitted): '(A) state generally may not enjoin conduct thought to be a federal unfair labor practice. The reason is that, despite the state court's contrary belief, the conduct may, as a matter of federal law, be privileged.'
16
In Marine Engineers Beneficial Ass'n v. Interlake S.S. Co., 370 U.S. 173, 82 S.Ct. 1237, 8 L.Ed.2d 418, we overturned a state ban on picketing arguably violating § 8(b)(4)(B); and to the counter-argument that the picketing group was not a 'labor organization' subject to § 8(b), we pointed out that this decision was for the Board. Unlike the present case, in Interlake the § 8(b) (4)(B) remedy had not been tried; but quite apart from that consideration, had the Board held the union a 'labor organization' and also held those being organized to be 'employees'—another point not recently decided by the Board—complete relief against the picketing might well have been available under § 8(b)(7). See 370 U.S., at 182—183, 82 S.Ct. at 1242—1243.
*
It could be argued that this assumption supports a scope of state regulation no broader than that ordinarily provided by the federal Act. It is not necessary to resolve that argument here.
| 910
|
382 U.S. 162
86 S.Ct. 352
15 L.Ed.2d 240
Al HARRIS, Petitioner,v.UNITED STATES.
No. 6.
Argued Oct. 11, 12, 1965.
Decided Dec. 6, 1965.
Ronald L. Goldfarb, Alexandria, Va., for petitioner.
Ralph S. Spritzer, Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This case brings back to us a question resolved by a closely divided Court in Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609, concerning the respective scope of Rule 42(a) and of Rule 42(b) of the Federal Rules of Criminal Procedure. Petitioner was a witness before a grand jury and refused to answer certain questions on the ground of self-incrimination. He and the grand jury were brought before the District Court which directed him to answer the questions propounded before the grand jury, stating that petitioner would receive immunity from prosecution. He refused again to give any answers to the grand jury. He was thereupon brought before the District Court and sworn. The District Court repeated the questions and directed petitioner to answer, but he refused on the ground of privilege. The prosecution at once requested that petitioner be found in contempt of court 'under Rule 42(a).' Counsel for petitioner protested and requested an adjournment and a public hearing where he would be permitted to call witnesses. The District Court denied the motion and thereupon adjudged petitioner guilty of criminal contempt, imposing a sentence of one year's imprisonment.1 The Court of Appeals af>>firmed, 334 F.2d 460. We granted certiorari, 379 U.S. 944, 85 S.Ct. 438, 13 L.Ed.2d 542.
2
Rule 42(a) is entitled 'Summary Disposition' and reads as follows:
3
'A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.'
4
Rule 42(a) was reserved 'for exceptional circumstances,' Brown v. United States, 359 U.S. 41, 54, 79 S.Ct. 539, 548 (dissenting opinion), such as acts threatening the judge or disrupting a hearing or obstructing court proceedings. Ibid. We reach that conclusion in light of 'the concern long demonstrated by both Congress and this Court over the possible abuse of the contempt power,' ibid., and in light of the wording of the Rule. Summary contempt is for 'misbehavior' (Ex parte Terry, 128 U.S. 289, 314, 9 S.Ct. 77, 83, 32 L.Ed. 405) in the 'actual presence of the Court.' Then speedy punishment may be necessary in order to achieve 'summary vindication of the court's dignity and authority' Cooke v. United States, 267 U.S. 517, 534, 45 S.Ct. 390, 394, 69 L.Ed. 767. But swiftness was not a prerequisite of justice here. Delay necessary for a hearing would not imperil the grand jury proceedings.
5
Cases of the kind involved here are foreign to Rule 42(a). The real contempt, if such there was, was contempt before the grand jury—the refusal to answer to it when directed by the court. Swearing the witness and repeating the questions before the judge was an effort to have the refusal to testify 'committed in the actual presence of the court' for the purposes of Rule 42(a). It served no other purpose, for the witness had been adamant and had made his position known. The appearance before the District Court was not a new and different proceeding, unrelated to the other. It was ancillary to the grand jury hearing and designed as an aid to it. Even though we assume arguendo that Rule 42(a) may at times reach testimonial episodes, nothing in this case indicates that petitioner's refusal was such an open, serious threat to orderly procedure that instant and summary punishment, as distinguished from due and deliberate procedures (Cooke v. United States, supra, at 536, 45 S.Ct. at 394), was necessary. Summary procedure, to use the words of Chief Justice Taft, was designed to fill 'the need for immediate penal vindication of the dignity of the court.' Ibid. We start from the premise long ago stated in Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242, that the limits of the power to punish for contempt are '(t)he least possible power adequate to the end proposed.'2 In the instant case, the dignity of the court was not being affronted: no disturbance had to be quelled; no insolent tactics had to be stopped. The contempt here committed was far outside the narrow category envisioned by Rule 42(a).3
6
Rule 42(b) provides the normal procedure. It reads:
7
'A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.'
8
Such notice and hearing serve important ends. What appears to be a brazen refusal to cooperate with the grand jury may indeed be a case of frightened silence. Refusal to answer may be due to fear fear of reprisals on the witness or his family. Other extenuating circumstances may be present.4 We do not suggest that there were circumstances of that nature here. We are wholly ignorant of the episode except for what the record shows and it reveals only the barebones of demand and refusal. If justice is to be done, a sentencing judge should know all the facts. We can imagine situations where the questions are so inconsequential to the grand jury but the fear of reprisal so great that only nominal punishment, if any, is indicated. Our point is that a hearing and only a hearing will elucidate all the facts and assure a fair administration of justice. Then courts will not act on surmise or suspicion but will come to the sentencing stage of the proceeding with insight and understanding.
9
We are concerned solely with 'procedural regularity' which, as Mr. Justice Brandeis said in Burdeau v. McDowell, 256 U.S. 465, 477, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (dissenting), has been 'a large factor' in the development of our liberty. Rule 42(b) prescribes the 'procedural regularity' for all contempts in the federal regime5 except those unusual situations envisioned by Rule 42(a) where instant action is necessary to protect the judicial institution itself.
10
We overrule Brown v. United States, supra, and reverse and remand this case for proceedings under Rule 42(b).
11
Reversed and remanded.
12
Mr. Justice STEWART, with whom Mr. Justice CLARK, Mr. Justice HARLAN, and Mr. Justice WHITE join, dissenting.
13
The issue in this case is the procedure to be followed when a witness has refused to answer questions before a grand jury after he has been ordered to do so by a district court. This issue, involving Rule 42(a) and Rule 42(b) of the Federal Rules of Criminal Procedure, was, as the Court says, resolved in Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609.1 That was six years ago. Since then this Court has made no changes in Rule 42(a) or 42(b).2 But today Brown is overturned, and the question it 'resolved' is now answered in the opposite way.
14
The particular question at issue here is of limited importance. But in this area the Court's duty is important, involving as it does the responsibility for clear and consistent guidance to the federal judiciary in the application of ground rules of our own making. We are not faithful to that duty, I think, when we overturn a settled construction of those rules for no better reasons than those the Court has offered in this case.3
15
The limited scope of the question at issue is made clear by the present record. A grand jury in the Southern District of New York was investigating alleged violations of the Communications Act of 1934.4 The petitioner appeared before this grand jury pursuant to a subpoena. He refused to answer a number of questions about an interstate telephone call upon the ground of possible self-incrimination. The petitioner was then granted immunity from any possible self-incrimination under § 409(l) of the Communications Act.5 Only after giving the petitioner and his lawyer full opportunity to be heard did the District Judge rule that the petitioner was clothed with complete constitutional immunity from self-incrimination, and only then did he direct the petitioner to answer the grand jury's questions. The petitioner returned to the grand jury room and again refused to answer the questions, this time in direct and deliberate disobedience of the District Judge's order.
16
It is common ground, I suppose, that the petitioner was then and there in contempt of court.6 Since the petitioner's refusal to obey the judge's order did not occur within the sight and hearing of the judge, a contempt proceeding could then have been initiated only under Rule 42(b). Such a proceeding would have been fully consonant with our decision in Brown,7 and a judge 'more intent upon punishing the witness than aiding the grand jury in its investigation might well have taken just such a course.' 359 U.S., at 50, 79 S.Ct., at 546. In such a proceeding all that would have been required to prove the contempt would have been the testimony of the grand jury stenographer, and the judge could then have imposed sentence. Such a procedure is often followed.8
17
Instead, however, the District Judge in this case followed the alternative procedure approved in Brown. He made one last effort to aid the grand jury in its investigation and gave the petitioner a final chance to purge himself of contempt. The petitioner and his lawyer appeared before the judge in open court.9 After the petitioner was sworn as a witness, the judge propounded the same questions which the petitioner had refused to answer before the grand jury. The petitioner again refused to answer. At the conclusion of the questioning the judge asked, 'Does anybody want to say anything further?' The only response from the petitioner's counsel, then or later,10 was a brief renewal of his attack upon the purpose of the grand jury investigation and the scope of the immunity which had been conferred upon the petitioner—legal questions which the judge had, after a complete hearing, fully determined before he had ordered the petitioner to answer the grand jury's questions in the first place.
18
The procedure followed by the District Court in this case was in precise conformity with Rule 42(a) and with longsettled and consistently followed practice.11 It is a procedure which, in this context, is at least as fair as a Rule 42(b) proceeding. The petitioner, represented by counsel, was accorded an additional chance to purge himself of contempt; he and his counsel were accorded full opportunity to offer any explanation they might have had in extenuation of the contempt—to inform the 'sentencing judge of all the facts.' And finally, there is no reason to assume that a sentence imposed for obduracy before a grand jury is likely to be more severe in a Rule 42(a) proceeding than one imposed after a proceeding under Rule 42(b). Indeed, the recent Rule 42(b) cases in the Southern District of New York referred to by the Court indicate the contrary.12 A sentence for contempt is reviewable on appeal in either case,13 and there is nothing to suggest that in the exercise of this reviewing power an appellate court will have any more information to go on in the one case than in the other.
19
For these reasons I would affirm the judgment of the Court of Appeals.
1
'The Court: Anything further?
'Mr. Maloney: No, your Honor.
'I think the record speaks for itself, and I would ask your Honor to find this witness in contempt of court under Rule 42(a) of the Federal Rules of Criminal Procedure.
'Mr. Polakoff: Your Honor, if this is a contempt proceeding I respectfully request an adjournment. I want to have the minutes and I want to have an opportunity to discuss them and consider them with my client and to look up the law.
'I further request, your Honor, a hearing where I will be permitted to call witnesses, perhaps a grand juror or two or more; perhaps the places the phone calls allegedly were made as indicated by the assistant, to prove to your Honor that there could be no possible violation of the Communications Act.
'I have not been told what tariff has been violated; no law has been cited or rule or regulation to your Honor or to me, and that requires research.
'I also would request that the contempt hearing be held in public.
'The Court: Your request is denied. This is a contempt committed in open court, and I adjudge the defendant guilty of a criminal contempt rule under Rule 42(a).'
2
And see Nye v. United States, 313 U.S. 33, 52—53, 61 S.Ct. 810, 817—818, 85 L.Ed. 1172; In re Michael, 326 U.S. 224, 227, 66 S.Ct. 78, 79, 90 L.Ed. 30; Cammer v. United States, 350 U.S. 399, 404, 76 S.Ct. 456, 458, 100 L.Ed. 474.
3
Rule 42(a) was described by the Advisory Committee as 'substantially a restatement of existing law. Ex parte Terry, 128 U.S. 289 (9 S.Ct. 77, 32 L.Ed. 405); Cooke v. United States * * *.' We have confirmed this on more than one occasion, e.g., Offutt v. United States, 348 U.S. 11, 13—14, 75 S.Ct. 11, 13—14, 99 L.Ed. 11; Brown v. United States, supra, 359 U.S. at 51, 79 S.Ct. at 547.
4
Chief Justice Taft said in Cooke v. United States, supra, 267 U.S. at 537, 45 S.Ct. at 395:
'Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed.'
5
In more than one instance in the Southern District of New York, from which this case comes, witnesses cited for testimonial contempt before the grand jury were given hearings under Rule 42(b). E.g., United States v. Castaldi, 338 F.2d 883; United States v. Tramunti, 343 F.2d 548; United States v. Shillitani, 345 F.2d 290; United States v. Pappadio, 346 F.2d 5. There is no indication that this procedure impeded the functioning of the grand jury.
1
Brown v. United States was reaffirmed and followed in Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038, 4 L.Ed.2d 989.
2
The proposed amendments to Rules of Criminal Procedure for the United States District Courts, approved on September 22—23, 1965, by the Judicial Conference of the United States, make no changes in Rule 42(a) or Rule 42(b).
3
No argumentation or factual data are contained in the Court's opinion today which were not fully revealed in the dissenting opinion in Brown, 359 U.S., at 53—63, 79 S.Ct., at 548 553, passim, and considered by the Court there. Nor is it suggested that the Brown rule has proved to be unclear or difficult of application. The considerations attending the overruling of Brown are quite unlike those involved in the overruling that occurred in Swift & Co., Inc. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, where the Court changed a procedural rule which it found unworkable in actual practice.
4
48 Stat. 1070 and 1100, 47 U.S.C. §§ 203(c) and 501, (1964 ed.), and 18 U.S.C. § 1952 (1964 ed.).
5
48 Stat. 1096, 47 U.S.C. § 409(l) (1964 ed.).
6
The prevailing opinion today says, 'The real contempt, if such there was, was contempt before the grand jury * * *.' But a grand jury is without power itself to compel the testimony of witnesses. It is the court's process which summons the witness to attend and give testimony, and it is the court which must compel a witness to testify, if, after appearing, he refuses to do so.
7
'When upon his return to the grand jury room the petitioner again refused to answer the grand jury's questions, now in direct disobedience of the court's order, he was for the first time guilty of contempt. At that point a contempt proceeding could unquestionably and quite properly have been initiated. Since this disobedience of the order did not take place in the actual presence of the court, and thus could be made known to the court only by the taking of evidence, the proceeding would have been conducted upon notice and hearing in conformity with Rule 42(b). See Carlson v. United States, 209 F.2d 209, 216 (C.A.1st Cir.).' 359 U.S., at 50, 79 S.Ct., at 546.
8
See cases cited in note 5 of the Court's opinion, supra, p. 167.
9
The record shows that the court was 'opened by proclamation.'
10
Before imposing sentence, the judge gave petitioner and his counsel still another opportunity to offer any explanation they might have of the petitioner's obduracy:
'The Court: I have already made my position perfectly clear, but I will say it again: I have directed you to answer these questions before the grand jury, and I have directed you to answer them here. It is my ruling that you cannot be prosecuted for any answer that you give under the circumstances of this case. Do you still refuse, Mr. Harris?
'The Witness: I respectfully refuse to answer on the grounds it would tend to incriminate me.
'The Court: Anything further?'
11
See, in addition to Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609, and Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038, 4 L.Ed.2d 989; Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344; Wilson v. United States, 221 U.S. 361, 369, 31 S.Ct. 538, 539, 55 L.Ed. 771; Hale v. Henkel, 201 U.S. 43, 46, 26 S.Ct. 370, 372, 50 L.Ed. 652; United States v. Curcio, 234 F.2d 470, 473 (C.A.2d Cir.), rev'd on other grounds, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957); Lopiparo v. United States, 216 F.2d 87 (C.A.8th Cir.); United States v. Weinberg, 65 F.2d 394, 396 (C.A.2d Cir.). For the earlier practice at common law, see People ex rel. Phelps v. Fancher, 4 Thompson & Cook 467 (N.Y.1874); People ex rel. Hackley v. Kelly, 24 N.Y. 74, 79—80 (1861); In re Harris, 4 Utah 5, 8—9, 5 P. 129, 130—132 (1884); Heard v. Pierce, 8 Cush. 338, 342—345, 62 Mass. 338, 342 345 (1851).
12
See note 5 of the Court's opinion, supra, p. 167. United States v. Castaldi, 338 F.2d 883 (two years); United States v. Tramunti, 343 F.2d 548 (one year); United States v. Shillitani, 345 F.2d 290 (two years); United States v. Papadio, 346 F.2d 5 (two years).
13
See Green v. United States, 356 U.S. 165, 188, 78 S.Ct. 632, 645, 2 L.Ed.2d 672; Yates v. United States, 356 U.S. 363, 78 S.Ct. 766, 2 L.Ed.2d 837; Nilva v. United States, 352 U.S. 385, 396, 77 S.Ct. 431, 437—438, 1 L.Ed.2d 415; Brown v. United States, 359 U.S. 41, 52, 79 S.Ct. 539, 547, 3 L.Ed.2d 609.
| 01
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382 U.S. 237
86 S.Ct. 338
15 L.Ed.2d 294
The WESTERN PACIFIC RAILROAD COMPANY et al., Appellants,v.UNITED STATES et al.
No. 12.
Argued Oct. 19, 1965.
Decided Dec. 7, 1965.
Walter G. Treanor, San Francisco, Cal., for appellants.
Paul Bender, Washington, D.C., for appellants, pro hac vice, by special leave of Court.
Robert W. Ginnane, Washington, D.C., and Frank S. Farrell, St. Paul, Minn., for appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
Section 3(4) of the Interstate Commerce Act, as amended, 54 Stat. 902, 49 U.S.C. § 3(4) (1964 ed.), commands that 'All carriers subject to the provisions of this chapter * * * shall not discriminate in their rates, fares, and charges between connecting lines * * *.'1 The meaning of the term 'connecting lines' is the crucial question in this controversy between the Western Pacific Railroad Company, on the one hand, and the Union Pacific Railroad Company and the Northern Pacific Railway Company, on the other. Western Pacific contends that it is a 'connecting line' in relation to these carriers and that, therefore, it is entitled to invoke against them the provisions of § 3(4) prohibiting discriminatory rates. The Interstate Commerce Commission and the District Court held otherwise.
2
Western Pacific filed a complaint with the Commission, alleging, in part, that Union Pacific and Northern Pacific practice rate discrimination against it.2 The alleged discrimination consists in the refusal of these carriers, except with respect to a few commodities, to enter into joint through rates via Portland, Oregon, with the route of which Western Pacific is part, although they maintain a full line of such rates with a competitor, the Southern Pacific Company. The hearing examiner found in favor of Western Pacific, but Division 2 of the Commission reversed. The Division found both that Western Pacific could not invoke the provisions of § 3(4) because it was not a 'connecting line,' and that, even if it were, the evidence did not establish the 'similarity of circumstances and conditions' that would compel rate treatment equal to that accorded to Southern Pacific. The Division refused to accord Western Pacific 'connecting line' status on the ground that it neither physically connects with the allegedly discriminating carriers at the point of discrimination, nor participates in existing through routes with them through that point. Western Pacific R. Co. v. Camas Prairie R. Co., 316 I.C.C. 795. When the full Commission denied further hearing, Western Pacific brought this action in the United States District Court for the Northern District of California to set aside the Commission's order. The three-judge court dismissed the complaint solely on the ground that Western Pacific was not a 'connecting line.' Western Pacific R. Co. v. United States, D.C., 230 F.Supp. 852. It agreed with the Commission's limited definition of the term and said, 'Any further liberalization of the present definition will have to come from the Supreme Court.' Id., at 855. We noted probable jurisdiction. 379 U.S. 956, 85 S.Ct. 656, 13 L.Ed.2d 553.
3
Analysis of 'connecting line' status in this case is closely tied to the geographical, structural, and economic relationships among the railroads involved. Union Pacific, Northern Pacific and their short-line connections provide exclusive rail service between many points in the Pacific Northwest and Portland, Oregon. From Portland, the two competitive routes in question descend, at times parallel, at times intertwined, to Southern California. The route closest to the seacoast consists largely of Southern Pacific. To the east of this route lies the so-called Bieber route whose completion in 1931 was authorized by the Commission to provide competition with Southern Pacific.3 The Bieber route is composed of the end-to-end connections of three different companies: the Great Northern Railway from Portland to Bieber, California; the Western Pacific from Bieber to Stockton; and the Atchison, Topeka & Santa Fe from Stockton to Southern California. Thus the Bieber route and Southern Pacific both connect with the allegedly discriminating carriers at Portland where facilities for the interchange of traffic exist.
4
The Bieber route carriers presently enjoy joint through rates among themselves. Moreover, the other two participants in that route have expressed willingness to join with Western Pacific in the joint rates it seeks with Union Pacific and Northern Pacific. Union Pacific and Northern Pacific, for over 50 years, have maintained through routes and a full line of joint rates with Southern Pacific via Portland. They have refused, however, except for a few commodities, to offer through routes and joint rates on traffic moving on the Bieber route through Portland. The joint rates established with Southern Pacific are lower than the combination of local rates that would otherwise apply. Since the Bieber route carriers can offer joint rates only with respect to a few commodities, they cannot match the lower rates offered by Southern Pacific to shippers of most commodities between points in California and points in the Pacific Northwest exclusively served by Union Pacific and Northern Pacific via Portland.
5
The Commission and the District Court held, however, that even under these circumstances, Western Pacific is not a 'connecting line' eligible to complain of the alleged discrimination. In argument here the Commission and the appellee railroads contend that to qualify for that status Western Pacific must show more than that it participates in an established through route that connects with Union Pacific and Northern Pacific, and that all the participants in the route stand willing to cooperate with these carriers in establishing joint through rates.4 We are urged to hold that to qualify under § 3(4) as a complainant 'connecting line' a railroad must either itself make a direct connection with the discriminating carrier, or be part of a through route that already includes the carrier. We cannot accept such a construction of the statute.
6
The literal meaning of the statute does not require that construction. To be sure, the term 'connecting lines' suggests the requirement of an actual physical connection between the complainant and the discriminating carrier. The term 'line,' however, admits of more than a single meaning limited to the track owned exclusively by one railroad company. It may also be interpreted reasonably to include a functional railroad unit such as the Bieber through route involved here. Moreover, all parties in this litigation recognize that in Atlantic Coast Line R. Co. v. United States, 284 U.S. 288, 52 S.Ct. 171, 76 L.Ed. 298, this Court rejected the contention that 'connecting line' is a term limited to the meaning that the statutory language might initially suggest. Mr. Justice Brandeis, speaking for a unanimous Court, wrote, 'There is no warrant for limiting the meaning of 'connecting lines' to those having a direct physical connection * * *. The term is commonly used as referring to all the lines making up a through route.' Id., at 293, 52 S.Ct. at 173.
7
There also is no warrant for limiting the meaning of 'connecting lines' to the lines making up a through route that already includes the discriminating carrier. We have been referred to no previous judicial or administrative decisions compelling that conclusion. The Atlantic Coast Line case, supra, imposes no such limitation. It established that the term 'connecting lines' extends beyond physical connection to encompass lines participating in a through route, but it does not even hint of any limitation on the nature of the through route, much less hold that the through route must already include the discriminating carrier.5 Our subsequent definition of 'through route' in Thompson v. United States, 343 U.S. 549, 72 S.Ct. 978, 96 L.Ed. 1134 adds no more to an analysis of 'connecting line' under § 3(4). In that case, which arose under §§ 15(3) and 15(4) of the Act, we held that the Commission had improperly applied the test of the existence of a through route: '* * * whether the participating carriers hold themselves out as offering through transportation service.' 343 U.S., at 557, 72 S.Ct., at 983. Section 3(4) does not use the term 'through route.' But even if, after Atlantic Coast Line, a carrier may qualify as a 'connecting line' if it is one of the 'lines making up a through route,' 284 U.S., at 293, 52 S.Ct., at 173, the Thompson test offers no solution to the problem presented here. It simply does not speak to the question whether the discriminating carrier must be one of the participating carriers offering through service in conjunction with the carrier seeking 'connecting line' status.
8
The reason the issue presented in this case has not been decided before now6 may be that discrimination of the sort complained of here is uncommon. In most instances it is to the advantage of railroads such as Union Pacific and Northern Pacific to encourage the movement of traffic over their lines from as many sources as possible.7 Moreover, when such discrimination does occur the railroad connecting directly with the discriminating carrier is likely to take the lead as complainant.
9
In the absence of any settled construction of § 3(4), then, its manifest purpose to deprive railroads of discretion to apportion economic advantage among competitors at a common interchange must be the basic guide to decision. Just such discretion would be conferred upon railroads in a position to discriminate if we were to hold that their decisions not to enter through route relationships with connecting through routes could bar nonadjacent participants in such through routes from eligibility to complain. Indeed such a holding would result in an anomalous set of circumstances clearly illustrated in the present context. No one doubts that Southern Pacific, by virtue of its direct physical connection, would be eligible to complain of rate discrimination if it were practiced in favor of the Bieber route. It is also undisputed that Great Northern would be eligible to complain of the present discrimination, not merely as it affects its segment of the Bieber route, but on behalf of the route as a whole. Moreover, it is clear that if Union Pacific and Northern Pacific had entered a through route relationship with the Bieber route and then had decided to abandon it, or to set rates somewhat higher than those set for Southern Pacific, any participant in the Bieber route could complain of that discrimination. We cannot therefore construe § 3(4) to bar these participants from eligibility to complain solely because they have been put to an even greater competitive disadvantage by the refusal of the allegedly discriminating carriers to enter a through route relationship with them comparable to the one established with Southern Pacific. Hence, we hold that to qualify as a 'connecting line,' in the absence of physical connection, a carrier need only show that it participates in an established through route, making connection at the point of common interchange, all of whose participants stand willing to cooperate in the arrangements necessary to eliminate the alleged discrimination.
10
Such a construction of 'connecting line' does not interfere with the function of the Commission under § 15(3) of the Act, 54 Stat. 911, 49 U.S.C. § 15(3), (1964 ed.), to require the establishment of through routes and joint rates 'in the public interest.'8 Section, 3(4) is applicable only to a narrower range of situations involving discrimination at a common interchange. Moreover, the remedy in § 3(4) situations need not entail the establishment of through routes, joint rates, or indeed any particular form of relief. All that is required is the elimination of discriminatory treatment. See Chicago, Indianapolis & Louisville R. Co. v. United States, 270 U.S. 287, 292—293, 46 S.Ct. 226, 228, 70 L.Ed. 590; United States v. Illinois Central R. Co., 263 U.S. 515, 520—521, 44 S.Ct. 189, 191, 68 L.Ed. 417. Finally our holding does no more than to define the characteristics of a carrier eligible to complain. Relief is warranted only if it also appears that differential treatment is not justified by differences in operating conditions that substantially affect the allegedly discriminating carrier. See United States v. Illinois Central R. Co., supra, 263 U.S. at p. 521, 44 S.Ct. at p. 192; Atchison, Topeka & Santa Fe R. Co. v. United States, D.C., 218 F.Supp. 359, 369.
11
In the present case, having found that Western Pacific was not eligible to complain, the District Court did not reach the question whether it was entitled to relief. We therefore vacate the judgment and remand this case to the District Court for further proceedings consistent with this opinion. It is so ordered.
12
Judgment Vacated and Case Remanded with Directions.
13
Mr. Justice DOUGLAS, dissenting.
14
Under the Interstate Commerce Act, 49 U.S.C. § 1 et seq., as I read it, there are two ways of obtaining 'through routes.' One is to qualify as a 'connecting line' within the meaning of § 3(4) where a similarly situated competing carrier has been given a through route.1 The other is to apply for a rate for a 'through route' under § 1(4).2 In the event that a carrier refuses to establish a 'through route,' the Commission may 'upon complaint or upon its own initiative without complaint,' establish a 'through route' when 'deemed by it to be necessary or desirable in the public interest.' § 15(3).3
15
In this case appellants sought a 'through route' with certain appellee railroads on the same basis as the joint rates those railroads had established with the Southern Pacific. In an adversary proceeding the Commission denied the establishment of a 'through route' under § 1(4) saying:
16
'* * * The shippers urge that the rates and routes sought would give them more freedom of choice in the movement of their goods, would improve transportation service, time in transit, and car supply, and make available additional transit privileges. Nothing of record, however, indicates that the existing through routes and joint rates are inadequate to meet the needs of the shipping public. In fact the failure of the shipper witnesses to initiate in the last 31 years a determined campaign to persuade the defendants of the necessity of establishing through routes between points on the complainants' lines in California and points on the defendants' lines in the Northwest, is at least some indication of the adequacy of the existing routes. The expression 'in the public interest' means more than a mere desire on the part of shippers for something that would merely be convenient or desirable for them. This desire must be weighed against the effect on other carriers and the general public. On the basis of this record, we cannot find that the public interest would be served by requiring the establishment of joint rates and through routes which are substantially slower and costlier than the present routes.' 316 I.C.C. 795, 810—811.
17
What the Court does today is to let § 3(4) swallow § 1(4) by letting any segment of a multi-carrier through route become a 'connecting line.'4 For then the ban in § 3(4) on discriminatory rates in effect forces the establishment of 'through routes' with 'just and reasonable rates' as required by § 1(4), without satisfying any of the conditions of § 1(4) and of § 15(3). Indeed after today, the whole protective scheme of § 15(3) which makes the Commission the guardian of 'through routes' (see St. Louis South-western R. Co. v. United States, 245 U.S. 136, 142—143, 38 S.Ct. 49, 51, 62 L.Ed. 199) breaks down.
18
In addition to the conditions set forth in § 15(3) the Commission's power to compel the establishment of through routes is limited by § 15(4), which prevents the Commission from establishing any through route requiring a carrier to 'short haul' itself except where particular circumstances (enumerated in § 15(4)) are found to exist. See Thompson v. United States, 343 U.S. 549, 552—556, 72 S.Ct. 978, 980, 982, 96 L.Ed. 1134; Denver & R. G. W. R. Co. v. Union P.R. Co., 351 U.S. 321, 325, 76 S.Ct. 982, 984, 100 L.Ed. 1220 et seq.; Chicago, M., St. P. & P.R. Co. v. United States, 366 U.S. 745, 81 S.Ct. 1630, 6 L.Ed.2d 772. Can a carrier after today's decision be compelled to 'short haul' itself where an internal segment of a multi-carrier through route invokes § 3(4)?5
19
Section 3(4) narrowly construed to include only lines that physically abut, would, of course, lift some cases from § 1(4) and from § 15. But those are the exceptions, relatively few in number. The Court multiplies those almost without end when it holds that any interior segment of an established multi-carrier through route is a 'connecting line' within the meaning of § 3(4).
20
Today's decision uproots the established concept of 'through routes.' As we stated in Thompson v. United States, 343 U.S. 549, 557, 72 S.Ct. 978, 983 (quoting from the Commission's 21st Annual Report to Congress):
21
'A through route is a continuous line of railway formed by an arrangement, express or implied, between connecting carriers. * * * Existence of a through route is to be determined by the incidents and circumstances of the shipment, such as the billing, the transfer from one carrier to another, the collection and division of transportation charges, or the use of a proportional rate to or from junction points or basing points. These incidents named are not to be regarded as exclusive of others which may tend to establish a carrier's course of business with respect to through shipments.'
Then we added:
22
'In short, the test of the existence of a 'through route' is whether the participating carriers hold themselves out as affering through transportation service. Through carriage implies the existence of a through route whatever the form of the rates charged for the through service.' Ibid. (Italics added.)
23
And see Denver & R. G. W. R. Co. v. Union P.R. Co., 351 U.S. 321, 327, 330, 76 S.Ct. 982, 985, 987, 100 L.Ed. 1220.
24
Here there has been no 'holding out' by the participating carriers (either consensually or as a result of any Commission action) that offers this interior segment of this multi-carrier route to become a part of any 'through route.' If we are to allow § 1(4) and §§ 3(4) and 15(3) to exist in harmony, we must adhere to that requirement, restricting 'connecting line' to those lines that have a direct physical connection with the allegedly discriminating carrier.
25
Atlantic Coast Line R. Co. v. United States, 284 U.S. 288, 52 S.Ct. 171, 76 L.Ed. 298, is not opposed. While the line in question was only a segment in a multi-carrier system, it had 'through routes' with the other carriers in controversy. Id., at 292, 52 S.Ct. at 172. The words 'connecting lines'6 were therefore used to include 'all the lines making up a through route.' Id., at 293, 52 S.Ct. at 173. But there is no 'through route' here, the defendants not having agreed to one and the Commission having expressly disallowed one pursuant to its power under § 15(3).
1
Section 3(4) provides in full:
'All carriers subject to the provisions of this chapter shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines and connecting lines, and for the receiving, forwarding, and delivering of passengers or property to and from connecting lines; and shall not discriminate in their rates, fares, and charges between connecting lines, or unduly prejudice any connecting line in the distribution of traffic that is not specifically routed by the shipper. As used in this paragraph the term 'connecting line' means the connecting line of any carrier subject to the provisions of this chapter or any common carrier by water subject to chapter 12 of this title.'
2
Western Pacific and its subsidiaries named as defendants: The Northern Pacific Railway Company, The Union Pacific Railroad Company, and certain of their short-line connections. These railroads denied the allegations of the complaint. The Southern Pacific Company intervened in opposition to the complaint. The complaint also named as defendants: The Atchison, Topeka & Santa Fe Railway Company, The Great Northern Railway Company, and certain short-line connections. These railroads answered expressing willingness to join in the relief sought by Western Pacific.
The complaint also alleged violation of § 1(4) of the Act which requires, in part, that railroads establish 'reasonable through routes' with other carriers and 'just and reasonable rates, fares, charges, and classifications applicable thereto. * * *' When such routes are not established voluntarily, the Commission has authority under § 15(3) to prescribe them 'in the public interest.' This authority is subject to the short-haul limitation embodied in § 15(4). Although the complainants indicated a willingness to rely solely on the alleged violation of § 3(4), the Commission found against them on the § 1(4) allegation as well. No question under § 1(4) is presented here.
3
Great Northern R. Co. Construction, 166 I.C.C. 3, 39; 170 I.C.C. 399.
4
Pursuant to 28 U.S.C. § 2322 (1964 ed.), the United States was named as defendant in the District Court. It did not, however, join with the Commission in defense of the Commission's order, and it supports Western Pacific in this Court.
5
In the Atlantic Coast Line case, certain railroads leasing the Carolina, Clinchfield & Ohio Railway with the approval of the Commission filed restrictive schedules designed ultimately to exclude an as yet incomplete extension of the Georgia & Florida Railroad from participating, when completed, in joint rates over the Clinchfield. The Commission ordered the schedules canceled on the ground that they violated terms in the lease, accepted by the lessees, on which the Commission had conditioned its approval. One condition required the lessees to permit the Clinchfield to be used as a link for through traffic with 'such other carriers, now connecting, or which may hereafter connect, with (it) * * *.' 284 U.S., at 292, note 3, 52 S.Ct. at 172. The extension of the Georgia & Florida made connection with the Clinchfield only via the rails of an intermediate carrier. This Court sustained the Commission's order, however, and held that the Georgia & Florida was a carrier connecting with the Clinchfield because it was one of the 'lines making up a through route.' 284 U.S., at 293, 52 S.Ct. at 173. Even assuming that the through route referred to was not one limited to the complaining carrier and the intermediate carrier, it is clear that this Court was not faced with the question whether the complaining railroad would be regarded as a 'connecting line' if the through route establishing the connection did not also encompass the Clinchfield. In short, Atlantic Coast Line did not present the issue squarely before us now.
6
Although we do not regard Chicago, Indianapolis & Louisville R. Co. v. United States, 270 U.S. 287, 46 S.Ct. 226, 70 L.Ed. 590, as dispositive of the question presented, that case, on its facts, supports the conclusion we reach.
7
In response to an inquiry at oral argument, the parties have submitted memoranda agreeing that through routes and joint rates are ordinarily established by voluntary agreement, and that a railroad usually interchanges traffic on a comparable basis with competing railroads at a common interchange. See also Thompson v. United States, 343 U.S. 549, 554, 72 S.Ct. 978, 981, 96 L.Ed. 1134.
8
Section 15(3) provides in relevant part:
'The Commission may, and it shall whenever deemed by it to be necessary or desirable in the public interest, after full hearing upon complaint or upon its own initiative without complaint, establish through routes, joint classifications, and joint rates, fares, or charges, applicable to the transportation of passengers or property by carriers subject to this chapter * * * or the maxima or minima, or maxima and minima, to be charged, and the divisions of such rates, fares, or charges as hereinafter provided, and the terms and conditions under which such through routes shall be operated.'
1
Section 3(4) provides:
'All carriers subject to the provisions of this chapter shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines and connecting lines, and for the receiving, forwarding, and delivering of passengers or property to and from connecting lines; and shall not discriminate in their rates, fares, and charges between connecting lines, or unduly prejudice any connecting line in the distribution of traffic that is not specifically routed by the shipper. As used in this paragraph the term 'connecting line' means the connecting line of any carrier subject to the provisions of this chapter or any common carrier by water subject to chapter 12 of this title.' (Italics added.)
The discriminatory refusal to enter into through routes has been held to constitute a violation of 3(4). See Dixie Carriers, Inc. v. United States, 351 U.S. 56, 76 S.Ct. 578, 100 L.Ed. 934.
2
Section 1(4) provides in part:
'It shall be the duty of every common carrier subject to this chapter to provide and furnish transportation upon reasonable request therefor, and to establish reasonable through routes with other such carriers, and just and reasonable rates, fares, charges, and classifications applicable thereto; * * *.'
3
Section 15(3) provides in part:
'The Commission may, and it shall whenever deemed by it to be necessary or desirable in the public interest, after full hearing upon complaint or upon its own initiative without complaint, establish through routes, joint classifications, and joint rates, fares, or charges, applicable to the transportation of passengers or property by carriers subject to this chapter, or by carriers by railroad subject to this chapter and common carriers by water subject to chapter 12 of this title, or the maxima or minima, or maxima and minima, to be charged, and the divisions of such rates, fares, or charges as hereinafter provided, and the terms and conditions under which such through routes shall be operated.'
4
The term 'multi-carrier through route' is used here to indicate a route composed of two or more carriers which have established among themselves a through route with joint rates. This, of course, describes the Bieber route from southern California to Portland.
5
Congress has refused, although requested to do so by the Commission, to repeal § 15(4). See Thompson v. United States, supra, 343 U.S. at 555, 72 S.Ct. at 982.
6
Section 3(4) was not involved. What was in litigation was the construction of one of its earlier orders allowing one carrier to lease another. Commission approval was accompanied by conditions assuring 'equal service, routing, and movement of competitive traffic to and from all connecting lines' reached by the lessee. 284 U.S., at 292, 52 S.Ct., at 172. It was in that context that the Court held that carriers were protected even though their rails did not 'physically abut' on the rails of the lessee. 284 U.S., at 293, 52 S.Ct., at 173.
| 78
|
382 U.S. 223
86 S.Ct. 360
15 L.Ed.2d 284
UNITED GAS IMPROVEMENT CO. et al., Petitioners,v.CALLERY PROPERTIES, INC., et al. PUBLIC SERVICE COMMISSION OF the STATE OF NEW YORK, Petitioner, v. CALLERY PROPERTIES, INC., et al. OCEAN DRILLING & EXPLORATION COMPANY, Petitioner, v. FEDERAL POWER COMMISSION et al. FEDERAL POWER COMMISSION, Petitioner, v. CALLERY PROPERTIES, INC., et al.
Nos. 21, 22, 26 and 32.
Argued Oct. 18, 19, 1965.
Decided Dec. 7, 1965.
Rehearings Denied Jan. 17, 1966.
See 382 U.S. 1001, 86 S.Ct. 526.
[Syllabus from pages 223-224 intentionally omitted]
Richard A. Solomon, Washington, D.C., for Federal Power commission.
William T. Coleman, Jr., Philadelphia, Pa., for United Gas Improvement Co. and others.
Kent H. Brown, Albany, N.Y., for Public Service Comm'n of New York.
J. Evans Attwell, Houston, Tex., for Ocean Drilling & Exploration Co.
Herbert W. Varner, Houston, Tex., for Superior Oil Co. and others.
Richard F. Generelly, Washington, D.C., for Callery Properties, Inc. and others.
Paul W. Hicks, Dallas, Tex., for Placid Oil Co. and others.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The Federal Power Commission in 1958—1959 granted unconditional certificates of public convenience and necessity to numerous producers of gas in south Louisiana, the sales contracts of the producers calling for initial prices ranging from 21.4 cents to 23.8 cents per Mcf. After deliveries commenced under those contracts, consumer interests challenged the orders in various courts of appeals. The Court of Appeals for the Third Circuit sustained the Commission's action (United Gas Improvement Co. v. Federal Power Comm'n, 3 Cir., 269 F.2d 865) but we vacated the judgment (Public Service Comm'n, of State of New York v. Federal Power Comm'n, 361 U.S. 195, 80 S.Ct. 292, 4 L.Ed.2d 237) for reconsideration in light of Atlantic Refining Co. v. Public Service Comm'n (CATCO), 360 U.S. 378, 79 S.Ct. 1246, 3 L.Ed.2d 1312; and the other courts of appeals did likewise.1
2
The Commission thereupon instituted an area rate proceeding for south Louisiana and consolidated the remanded cases with that proceeding. 25 F.P.C. 942. It advised the producers of their potential obligation to refund any amounts eventually found to be inconsistent 'with the requirements of the public interest and necessity' under § 7 of the Natural Gas Act, 52 Stat. 824, as amended, 15 U.S.C. § 717f. 27 F.P.C. 15. Later the Commission in the interest of expedition severed the present group of applications and set them for a hearing in a consolidated proceeding under § 7. 27 F.P.C. 482. At the end, the Commission imposed two conditions on the certificates granted in these cases. First, it provided that the producers commence service at 18.5 cents per Mcf., plus 1.5 cents tax reimbursement where applicable, a price that it found to be 'in line' with prices for Commission-certificated sales of gas from the southern Louisiana production area under generally contemporaneous contracts, 30 F.P.C. 283, 288—289. Second, it provided that until just and reasonable area rates are determined for south Louisiana, or until July 1, 1967, whichever is earlier, the producers shall not file any increased rates above 23.55 cents, the level at which rate filings might trigger increased rates by other producers under the escalation provisions of their contracts with the pipeline companies here involved. 30 F.P.C. 283, 298.
3
In addition, the Commission ordered the producers to refund to their customers the amounts in excess of the proper initial price which they had already collected under the original certificate. 30 F.P.C. 283, 290.
4
On review the Court of Appeals held that the Commission erred in limiting producers to an initial 'in-line' price without first canvassing evidence bearing on the question of what would be a just and reasonable price for the gas. It further held that the Commission had no power to place an upper limit on future rates that a producer might file. Finally, the Court of Appeals, while upholding the power of the Commission to order refunds, held that the measure of such refunds was not to be the difference between the 'in-line' price and the original contract price, but between the latter and the just and reasonable price subsequently to be fixed. 335 F.2d 1004. We granted certiorari, 380 U.S. 931, 85 S.Ct. 935, 13 L.Ed.2d 820. We reverse the Court of Appeals.
5
We think the Commission acted lawfully and responsibly in line with our decision in the CATCO case where we held that it need not permit gas to be sold in the interstate market at the producer's contract price, pending determination of just and reasonable rates under § 5, 52 Stat. 823, 15 U.S.C. § 717d. 360 U.S. 378, 388—391, 79 S.Ct. 1246, 1253—1255. Rather, we held that there is ample power under § 7(e),2 to attach appropriate protective conditions. And see Federal Power Comm'n v. Hunt, 376 U.S. 515, 524—527, 84 S.Ct. 861, 866—868, 11 L.Ed.2d 878. The fixing of an initial 'in-line' price establishes a firm price at which a producer may operate, pending determination of a just and reasonable rate, without any contingent obligation to make refunds should a just and reasonable rate turn out to be lower than the 'in-line' price. Consumer protection is afforded by keeping the 'in-line' price at the level where substantial amounts of gas have been certificated to enter the market under other contemporaneous certificates, no onger subject to judicial review or in any way 'suspect.' We believe the Commission can properly conclude under § 7 that adequate protection to the public interest requires as an interim measure that gas not enter the interstate market at prices higher than existing levels. To consider in this § 7 proceeding the mass of evidence relevant to the fixing of just and reasonable rates under § 5 might in practical effect render nugatory any effort to fix initial prices.3 We said in CATCO that § 7 procedures are designed 'to hold the line awaiting adjudication of a just and reasonable rate' (360 U.S., at 392, 79 S.Ct., at 1255), and that 'the inordinate delay' in § 5 proceedings (360 U.S., at 391, 79 S.Ct., at 1255) should not cripple them.
6
The second condition which temporarily bars rate increases beyond 23.55 cents per Mcf., was likewise aimed at keeping the general price level relatively constant pending determination of the just and reasonable rate. We noted in Federal Power Comm'n v. Hunt, supra, 376 U.S., at 524, 84 S.Ct., at 867, that 'a triggering of price rises often results from the out-of-line initial pricing of certificated gas' and that the possibility of refund does not afford sufficient protection. And see Federal Power Comm'n v. Texaco Inc., 377 U.S. 33, 42—43, 84 S.Ct. 1105, 1110—1111, 12 L.Ed.2d 112. We think, contrary to the Court of Appeals, that there was ample power under § 7(e) for the Commission to attach these conditions for consumer protection during this interim period though the certificate was not a temporary one, as in Hunt, but a permanent one, as in CATCO and Federal Power Comm'n v. Texaco Inc., supra.
7
The 'in-line' price of 18.5 cents is supported by the contract prices in the south Louisiana area that were not 'suspect,' and the selection of 23.55 cents beyond which a price increase might trigger escalation reflects the Commission's expertise.
8
We also conclude that the Commission's refund order was allowable. We reject, as did the Court of Appeals below, the suggestion that the Commission lacked authority to order any refund. While the Commission 'has no power to make reparation orders,' Federal Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591, 618, 64 S.Ct. 281, 295, 88 L.Ed. 333, its power to fix rates under § 5 being prospective only. Atlantic Refining Co. v. Public Service Comm'n, supra, 360 U.S., at 389, 79 S.Ct., at 1254, it is not so restricted where its order, which never became final, has been overturned by a reviewing court. Here the original certificate orders were subject to judicial review; and judicial review at times results in the return of benefits received under the upset administrative order. See Securities & Exchange Comm'n v. Chenery Corp., 332 U.S. 194, 200—201, 67 S.Ct. 1575, 1579—1580, 1760, 91 L.Ed. 1995. An agency, like a court, can undo what is wrongfully done by virtue of its order. Under these circumstances, the Commission could properly conclude that the public interest required the producers to make refunds4 for the period in which they sold their gas at prices exceeding those properly determined to be in the public interest.
9
We think that the Commission could properly measure the refund by the difference between the rates charged and the 'in-line' rates to which the original certificates should have been conditioned. The Court of Appeals would delay the payment of the refund until the 'just and reasonable' rate could be determined. We have said elsewhere that it is the duty of the Commission, 'where refunds are found due, to direct their payment at the earliest possible moment consistent with due process.' Federal Power Comm'n v. Tennessee Gas Transmission Co., 371 U.S. 145, 155, 83 S.Ct. 211, 216, 9 L.Ed.2d 199. These excessive rates have been collected since 1958; under the circumstances, the Commission was not required to delay this refund further. And the imposition of interest on refunds is not an inappropriate means of preventing unjust enrichment. See Texaco, Inc. v. Federal Power Comm'n, 5 Cir., 290 F.2d 149, 157; Philip Carey Mfg. Co., Miami Cabinet Division v. National Labor Relations Board, 6 Cir., 331 F.2d 720, 729—731.
10
Reversed.
11
Mr. Justice FORTAS took no part in the consideration or decision of these cases.
12
Mr. Justice HARLAN, concurring in part and dissenting in part.
13
While the Commission's expansive view of its powers seems to me largely defensible in the abstract, I believe its actual decision reveals error and unfairness in important respects.
I.
14
The price condition, alone of the three key prongs of the Commission's order, can in my view be wholly sustained. The chief challenge to it stems from the exclusion in the § 7 hearing of a mass of cost and supply-demand evidence tendered by producers.1 Although the encompassing § 7 standard of public convenience and necessity encourages a broad inquiry, the Commission has given valid reasons for limiting itself to the in-line price for the time being. Area pricing ultimately aims to simplify proceedings under the statute, but the transition to it is said to strain the Commission's present resources for investigation. See State of Wisconsin v. FPC, 373 U.S. 294, 298—300, 313—314, 83 S.Ct. 1266, 1269—1270, 1276—1277, 10 L.Ed.2d 357. The in-line price, comparatively easy to fix, provides a firm basis for producers, helps avoid unrefundable initial overcharges, and exerts a downward pressure on price; at the same time, producers can file increases under § 4 with a six-month delay at most. The Commission has given a fair trial to cost evidence,2 and nothing in the offer of proof suggests a supply-demand crisis warranting court intervention with this administrative approach.
15
In locating the in-line price, the Commission has ignored a number of contemporaneous high-price contracts labeled 'suspect' because then under review, disapproved, or deemed influenced by those under review or disapproved. Although the danger of using a crooked measuring rod demands some precaution, this blanket exclusion also chances some distortion in favor of an unduly low in-line price. In the main the producers have chosen not to brief this question, apparently under the misapprehension that the Government has not here sought to sustain the exclusion of these contracts or that the lower court's failure to reach the question precluded this Court from doing so.3 But while the suspect order rule may by default be abided in this instance, I would not close the door to future arguments for a different solution of the dilemma.
16
A last troubling aspect of the in-line price derives from a critical and unusual circumstance: it, like the other conditions in this case, was imposed for the first time on remand, several years after an unconditional permanent certificate had issued. Presumably for six months hence, producers will be compelled to sell at a price they might not have accepted when free to refuse; for all that appears, the price may even be below cost, let alone a fair profit. However, in general the producers apparently did not seek an option to cancel future sales if dissatisfied by the newly conditioned certificates, the six-month delay is both brief and familiar, and I cannot say the Commission did not have a legitimate interest in imposing the in-line price at the time it did.
II.
17
The price-increase moratorium also seems to me a measure not generally beyond the Commission's grasp, but it should not be sustained on the record before us. Recognizing force in the contrary view of the Court of Appeals, I do not believe that § 4 must be read to bestow on producers an invincible right to raise prices subject only to a six-month delay and refund liability. Cf. FPC v. Texaco Inc., 377 U.S. 33, 84 S.Ct. 1105, 12 L.Ed.2d 112; FPC v. Hunt, 376 U.S. 515, 84 S.Ct. 861, 11 L.Ed.2d 878. A freeze until 1967 is not permanent pricefixing, and in this interregnum between individual and area pricing, the hazard of irreversible price increases warrants imposing some brake. A lengthy moratorium coupled with a refusal to consider cost or supply-demand figures in setting prices for duration—might present a real risk of choking off supply, but such a case is not before us.
18
Nevertheless, a moratorium instituted on remand is a hazardous device at best, and the present one is simply not supported by evidence. Because the producers have no chance to refuse the certificates after commencing delivery, the ceiling may coerce sales at unfairly low prices. Yet while the present moratorium must be endured longer than the in-line price, at least it permits the producers to charge a markedly higher amount; and as the safety valve for a price explosion, the moratorium could be upheld. At this point, however, the Government's argument fails for lack of proof that a price explosion is likely if increases rise above the moratorium figure. The Commission's figure was not considered by its hearing examiner, who made no recommendation for a moratorium. The Commission report itself devotes no more than one conclusory sentence, qualified by a footnote, to the question of what specific price rise will trigger increases at large, 30 F.P.C., at 298; rather than amplifying, the Government brief merely contends that the point has not been adequately preserved under § 19—a contention I do not accept.4 Several producers state that the Commission's fear of triggering has not been realized although sales are currently being made by them at levels above the intended moratorium price.
III.
19
While agreeing that the Commission has power to order refunds in the case before us, I believe the measure of repayment it selected is illogical and harsh. On the initial question of power, it must be conceded that nothing in the statute provides for refunds when a sale has been approved without qualification; but approval in the present instances had not become final for want of judicial review, and an equitable power to order refunds may fairly be implied.
20
The measure of refunds is another matter. The Commission has now directed that the producers repay the difference between the amounts collected over four to six years and the figure it has now established as the original in-line price.5 Since the in-line price has been fixed without reference to cost evidence and falls below the opening levels set in the negotiated contracts, the producers may well be receiving less than cost, as some of them expressly claim; and this imposed revision downward of prices covers not six months but a period of years.
21
The obvious refund formula, implicated by the statute itself and adopted by the Court of Appeals, would call for repayment of all amounts collected in excess of the 'just and reasonable' price; that price, measured under §§ 4 and 5, naturally takes due account of costs. The Government retorts that producers have no 'right' to sell their gas for a 'just and reasonable' price under the statute, a proposition perhaps true in the limited sense that the public convenience and necessity might yet exclude fair-profit sales by a uniquely high cost producer or in the face of a glutted market. No attempt is made, however, to class the present facts with such imaginable situations. Nor is advance exclusion from the interstate market so fearsome as an unexpected repricing of a completed sale depriving the seller of profit or costs.
22
On the present facts the Governement has failed to point to any public interest overrriding the potent claims of the producers to a fair return on their past four to six years of sales. Any triggering caused by the amounts previously charged has already spent its force and cannot be undone. Unconvincingly, the Government implies the producers may be comparatively well off with the present formula because it provides a final figure now and the 'just and reasonable' price might prove to be below the in-line price; however, instant certainty as to past prices is no great gain since taxes and royalties have already been paid, and the chance that producers may get more than they deserve by following the in-line price is not a substitute for assuring them a fair return. About the only concrete advantage cited by the Covernment for the in-line price is that it speeds refunds to consumers. Assuming that a compromise cannot be reached as in other cases,6 elaborate cost data should become available in the next year or two with the completion of the southern Louisiana area rate proceeding. Consumers, who assuredly expected no refunds when they paid their gas bills as long ago as six years, certainly do not suffer seriously in waiting a bit longer for refunds that individually must be minute in most cases.
23
The incongruity of the Commission's refund formula is well portrayed by considering what would have happened if the Commission had originally granted the certificates now thought proper by this Court. By accepting certificates conditioning sales at the in-line price, the producers could immediately have filed for increases, suffering at most a sixmonth delay. Even if the Commission's moratorium survived, the ceiling during this four-to-six-year period would have been 23.55 cents rather than the 18.5-cent figure now imposed. Thus, even had the Commission not erred in the first instance in favor of the producers, they still could have collected payments well in excess of 18.5 cents subject only to the ultimate finding of a 'just and reasonable' price now denied them by the Commission.
24
In line with the foregoing discussion, I would uphold the Commission's decision fixing an in-line price, remand the case for further findings on the triggering price for a moratorium if the Commission wishes to pursue the point, and set aside the refund with leave to order repayments based on the 'just and reasonable' price.
1
See United Gas Improvement Co. v. Federal Power Comm'n, 9 Cir., 283 F.2d 817; Public Service Comm'n of State of New York v. Federal Power Comm'n, 109 U.S.App.D.C. 292, 287 F.2d 146; United Gas Improvement Co. v. Federal Power Comm'n, 10 Cir., 287 F.2d 159; United Gas Improvement Co. v. Federal Power Comm'n, 5 Cir., 290 F.2d 133; and United Gas Improvement Co. v. Federal Power Comm'n, 5 Cir., 290 F.2d 147.
2
Section 7(e) provides in part:
'The Commission shall have the power to attach to the issuance of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require.'
3
In the early post-CATCO cases, the Commission apparently proceeded on a case-by-case basis, considering whatever evidence might have been presented. See, e.g., Continental Oil Co., 27 F.P.C. 96, 102—108. Experience convinced it that the minimal utility derived from cost and economic trend evidence was outweighed by the administrative burdens and delays its consideration inevitably produced. See Skelly Oil Co., 28 F.P.C. 401, 410—412. The Commission properly and constructively exercised its discretion in declining to consider this large quantity of evidence. To have done so would have required a considerable expenditure of manpower, cf. State of Wisconsin v. Federal Power Comm'n, 373 U.S. 294, 313, 83 S.Ct. 1266, 1276, 10 L.Ed.2d 357. We have previously encouraged the Commission to devise reasonable means of streamlining its procedures, see Federal Power Comm'n v. Hunt, supra, 376 U.S., at 527, 84 S.Ct. at 868, and we regard the Commission's decision here as an appropriate step in that direction. Cf. Federal Power Comm'n v. Texaco Inc., 377 U.S. 33, 44, 84 S.Ct. 1105, 1112, 12 L.Ed.2d 112.
4
The problem of refunds for amounts collected above the 'in-line' price is not affected here by any filling under § 4 for increases within the limits of the triggering moratorium. 52 Stat. 822, 15 U.S.C. § 717c. Under § 4(d), a 30-day notice to the Commission and to the public is required for all rate increases, the Commission having authority under § 4(e) to suspend the new rate for five months and thereafter to act only 'after full hearings.' If the Commission has not acted at the expiration of the period of suspension, the new rates become effective. The Commission may require the producer to furnish a bond, and thereafter may compel refund of 'the portion of such increased rates or charges by its decision found not justified.'
1
Section citations herein are all to the Natural Gas Act, 52 Stat. 821, as amended, 15 U.S.C. §§ 717—717w (1964 ed.).
2
See the majority's note 3, ante, p. 228.
3
See Petition of the FPC for Certiorari, p. 15, n. 14.
4
This precise ground of attack upon the moratorium was set forth by at least one producer. See ODECO Application for Rehearing Before the FPC. R. 603. Applications of other producers argued instead that any moratorium was plainly illegal under the Fifth Circuit's decision in Hunt v. FPC, 5 Cir., 306 F.2d 334, which had not then been reversed by this Court. 376 U.S. 515, 84 S.Ct. 861, 11 L.Ed.2d 878. See Petition of Placid Oil et al. for Rehearing Before the FPC, p. 35. Under these circumstances, § 19 does not seem to me to preclude allowing all producers the benefit of the error pinpointed by ODECO.
5
Deliveries commenced under all or nearly all the contracts in 1959 at prices exceeding 18.5 cents. The Commission's order directing the in-line price, refunds, and the moratorium issued four years later in 1963, and it has been under judicial review for the past two years. The record does not clearly indicate what rate increases the producers may already have filed with the Commission.
6
On several occasions, the Commission has approved agreements by producers to refund a fixed fraction of the difference between the amounts collected and the settlement price. See Texaco Inc., 28 F.P.C. 247 (other producers severed from the instant case); Continental Oil Co., 28 F.P.C. 1090 (on remand from CATCO).
| 78
|
382 U.S. 252
86 S.Ct. 335
15 L.Ed.2d 304
HAZELTINE RESEARCH, INC., et al., Petitioners,v.Edward J. BRENNER, Commissioner of Patents.
No. 57.
Argued Nov. 17, 1965.
Decided Dec. 8, 1965.
Rehearing Denied Jan. 17, 1966.
See 382 U.S. 1000, 86 S.Ct. 527.
Laurence B. Dodds, Little Neck, N.Y., for petitioners.
J. William Doolittle, Washington, D.C., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
The sole question presented here is whether an application for patent pending in the Patent Office at the time a second application is filed constitutes part of the 'prior art' as that term is used in 35 U.S.C. § 103 (1964 ed.), which reads in part:
2
'A patent may not be obtained * * * if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art * * *.'
3
The question arose in this way. On December 23, 1957, petitioner Robert Regis filed an application for a patent on a new and useful improvement on a microwave switch. On June 24, 1959, the Patent Examiner denied Regis' application on the ground that the invention was not one which was new or unobvious in light of the prior art and thus did not meet the standards set forth in § 103. The Examiner said that the invention was unpatentable because of the joint effect of the disclosures made by patents previously issued, one to Carlson (No. 2,491,644) and one to Wallace (No. 2,822,526). The Carlson patent had been issued on December 20, 1949, over eight years prior to Regis' application, and that patent is admittedly a part of the prior art insofar as Regis' invention is concerned. The Wallace patent, however, was pending in the Patent Office when the Regis application was filed. The Wallace application had been pending since March 24, 1954, nearly three years and nine months before Regis filed his application and the Wallace patent was issued on February 4, 1958, 43 days after Regis filed his application.1
4
After the Patent Examiner refused to issue the patent, Regis appealed to the Patent Office Board of Appeals on the ground that the Wallace patent could not be properly considered a part of the prior art because it had been a 'co-pending patent' and its disclosures were secret and not known to the public. The Board of Appeals rejected this argument and affirmed the decision of the Patent Examiner. Regis and Hazeltine, which had an interest as assignee, then instituted the present action in the District Court pursuant to 35 U.S.C. § 145 (1964 ed.) to compel the Commissioner to issue the patent. The District Court agreed with the Patent Office that the co-pending Wallace application was a part of the prior art and directed that the complaint be dismissed. 226 F.Supp. 459. On appeal the Court of Appeals affirmed per curiam. 119 U.S.App.D.C. 261, 340 F.2d 786. We granted certiorari to decide the question of whether a co-pending application is included in the prior art, as that term is used in 35 U.S.C. § 103. 380 U.S. 960, 85 S.Ct. 1108, 14 L.Ed.2d 152.
5
Petitioners' primary contention is that the term 'prior art,' as used in § 103, really means only art previously publicly known. In support of this position they refer to a statement in the legislative history which indictates that prior art means 'what was known before as described in section 102.'2 They contend that the use of the word 'known' indicates that Congress intended prior art to include only inventions or discoveries which were already publicly known at the time an invention was made.
6
If petitioners are correct in their interpretation of 'prior art,' then the Wallace invention, which was not publicly known at the time the Regis application was filed, would not be prior art with regard to Regis' invention. This is true because at the time Regis filed his application the Wallace invention, although pending in the Patent Office, had never been made public and the Patent Office was forbidden by statute from disclosing to the public, except in special circumstances, anything contained in the application.3
7
The Commissioner, relying chiefly on Alexander Milburn Co. v. Davis-Bournonville Co., 270 U.S. 390, 46 S.Ct. 324, 70 L.Ed. 651, contends that when a patent is issued, the disclosures contained in the patent become a part of the prior art as of the time the application was filed, not, as petitioners contend, at the time the patent is issued. In that case a patent was held invalid because, at the time it was applied for, there was already pending an application which completely and adequately described the invention. In holding that the issuance of a patent based on the first application barred the valid issuance of a patent based on the second application. Mr. Justice Holmes, speaking for the Court, said, 'The delays of the patent office ought not to cut down the effect of what has been done. * * * (The first applicant) had taken steps that would make it public as soon as the Patent Office did its work, although, of course, amendments might be required of him before the end could be reached. We see no reason in the words or policy of the law for allowing (the second applicant) to profit by the delay * * *.' At p. 401, 46 S.Ct. at p. 325.
8
In its revision of the patent laws in 1952, Congress showed its approval of the holding in Milburn by adopting 35 U.S.C. § 102(e) (1964 ed.) which provides that a person shall be entitled to a patent unless '(e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the application for patent.' Petitioners suggest, however, that the question in this case is not answered by mere reference to § 102(e), because in Milburn, which gave rise to that section, the co-pending applications described the same identical invention. But here the Regis invention is not precisely the same as that contained in the Wallace patent, but is only made obvious by the Wallace patent in light of the Carlson patent. We agree with the Commissioner that this distinction is without significance here. While we think petitioners' argument with regard to § 102(e) is interesting, it provides no reason to depart from the plain holding and reasoning in the Milburn case. The basic reasoning upon which the Court decided the Milburn case applies equally well here. When Wallace filed his application, he had done what he could to add his disclosures to the prior art. The rest was up to the Patent Office. Had the Patent Office acted faster, had it issued Wallace's patent two months earlier, there would have been no question here. As Justice Holmes said in Milburn, 'The delays of the patent office ought not to cut down the effect of what has been done.' P. 401, 46 S.Ct. at p. 325.
9
To adopt the result contended for by petitioners would create an area where patents are awarded for unpatentable advances in the art. We see no reason to read into § 103 a restricted definition of 'prior art' which would lower standards of patentability to such an extent that there might exist two patents where the Congress has plainly directed that there should be only one.
10
Affirmed.
1
It is not disputed that Regis' alleged invention, as well as his application, was made after Wallace's application was filed. There is, therefore, no question of priority of invention before us.
2
H.R.Rep. No. 1923, 82d Cong., 2d Sess., p. 7 (1952).
3
35 U.S.C. § 122 (1964 ed.) states: 'Applications for patents shall be kept in confidence by the Patent Office and no information concerning the same given without authority of the applicant or owner unless necessary to carry out the provisions of any Act of Congress or in such special circumstances as may be determined by the Commissioner.'
| 78
|
382 U.S. 257
86 S.Ct. 368
15 L.Ed.2d 308
F. J. GUNTHER, Petitioner,v.SAN DIEGO & ARIZONA EASTERN RAILWAY COMPANY.
No. 27.
Argued Nov. 8, 1965.
Decided Dec. 8, 1965.
Charles W. Decker, San Francisco, Cal., for petitioner.
Waldron A. Gregory, San Francisco, Cal., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
The petitioner, Gunther, worked as a fireman for respondent railroad for eight years, from 1916 to 1924, and as an engineer for 30 years, from 1924 until December 30, 1954. On that date, shortly after his seventy-first birthday, he was removed from active service because of an alleged physical disability. The railroad's action was taken on the basis of reports made by its physicians, after physical examinations of petitioner, that in their opinion he was no longer physically qualified to work as a locomotive engineer because his 'heart was in such condition that he would be likely to suffer an acute coronary episode.' Dissatisfied with the railroad doctors' findings, Mr. Gunther went to a recognized specialist who, after examination, concluded that petitioner was qualified physically to continue work as an engineer. On the basis of this report petitioner requested the railroad to join him in the selection a three-doctor board to re-examine his physical qualifications for return to service. The railroad refused. This disagreement led to prolonged litigation which has reached us 11 years after the controversy arose.
2
When the railroad refused to consent to the appointment of a new board of doctors to re-examine petitioner or to restore him to service, he filed a claim for reinstatment and back pay with the Railroad Adjustment Board, which was created by § 3 of the Railway Labor Act, as amended,1 to adjust, among other things, disputes of railroads and their employees 'growing out of grievances or out of the interpretation or application of agreements concerning * * * rules, or working conditions * * *.'2 The Adjustment Board, over the protests of the railroad, decided it had jurisdiction of the grievance and then, referring to past practice in similar cases, proceeded, as its findings show, to appoint a committee of three qualified physicians, to re-examine petitioner, 'one chosen by carrier and one by the employe and the third by the two so selected, for the purpose of determining the facts as to claimant's disability and the propriety of his removal from service * * *.' Subsequently, this committee of doctors examined petitioner and decided by a majority vote that he was physically qualified to act as an engineer, contrary to the prior findings of the railroad's doctors. Upon the basis of these findings the Adjustment Board decided that the railroad had been wrong in disqualifying petitioner for service and sustained his claim 'for reinstatement with pay for all time lost from October 15, 1955 * * *.' The railroad refused to comply with the Board's order and petitioner as authorized by the Act3 filed this action in a district court of the United States for an appropriate court order to enforce the Adjustment Board's award. After hearings the District Court, in its third opinion in the case, held the award erroneous and refused to enforce it.4 The District Court's refusal was based on its conclusion that there were no express or implied provisions in the collective bagaining contract which in the court's judgment limited in any way what it found to be the absolute right of the railroad, in absence of such provisions, to remove petitioner from active service whenever its physicians found in good faith 'that plaintiff was physically disqualified from such service.' The Court of Appeals affirmed, agreeing with the interpretation put upon the contract by the District Court, and thereby rejected the Board's interpretation of the contract and its decision on the merits of the dispute. 336 F.2d 543. We granted certiorari because the holding of the two courts below seemed, in several respects, to run counter to the requirements of the Railway Labor Act as we have construed it. 380 U.S. 905, 85 S.Ct. 890, 13 L.Ed.2d 793.
3
I. Section 3, First (i) of the Railway Labor Act provides that 'disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements' are to be handled by the Adjustment Board. In § Congress has established an expert body to settle 'minor' grievances like petitioner's which arise from day to day in the railroad industry. The Railway Adjustment Board, composed equally of representatives of management and labor is peculiarly familiar with the thorny problems and the whole range of grievances that constantly exist in the railroad world. Its membership is in daily contact with workers and employers, and knows the industry's language, customs, and practices. See Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 243—244, 70 S.Ct. 577, 94 L.Ed. 795. The Board's decision here fairly read shows that it construed the collective bargaining provisions which secured seniority rights, together with other provisions of the contract, as justifying an interpretation of the contract guaranteeing to petitioner 'priority in service according to his seniority and pursuant to the agreement so long as he is physically qualified.' The District Court, whose opinion was affirmed by the Court of Appeals, however, refused to accept the Board's interpretation of this contract. Paying strict attention only to the bare words of the contract and invoking old common-law rules for the interpretation of private employment contracts, the District Court found nothing in the agreement restricting the railroad's right to remove its employees for physical disability upon the goodfaith findings of disability by its own physicians. Certainly it cannot be said that the Board's interpretation was wholly baseless and completely without reason. We hold that the District Court and the Court of Appeals as well went beyond their province in rejecting the Adjustment Board's interpretation of this railroad collective bargaining agreement. As hereafter pointed out Congress, in the Railway Labor Act, invested the Adjustment Board with the broad power to arbitrate grievances and plainly intended that interpretation of these controversial provisions should be submitted for the decision of railroad men, both workers and management, serving on the Adjustment Board with their long experience and accepted expertise in this field.
4
II. The courts below were also of the opinion that the Board went beyond its jurisdiction in appointing a medical board of three physicians to decide for it the question of fact relating to petitioner's physical qualifications to act as an engineer. We do not agree. The Adjustment Board, of course, is not limited to common-law rules of evidence in obtaining information. The medical board was composed of three doctors, one of whom was appointed by the company, one by petitioner, and the third by these two doctors. This not only seems an eminently fair method of selecting doctors to perform this medical task but it appears from the record that it is commonly used in the railroad world for the very purpose it was used here. In fact the record shows that under respondent's present collective bargaining agreement with its engineers provision is made for determining a dispute precisely like the one before us by the appointment of a board of doctors in precisely the manner the Board used here. This Court has said that the Railway Labor Act's 'provisions dealing with the Adjustment Board were to be considered as compulsory arbitration in this limited field.'5 On a question like the one before us here, involving the health of petitioner, and his physical ability to operate an engine, arbitrators would probably find it difficult to find a better method for arriving at the truth than by the use of doctors selected as these doctors were. We reject the idea that the Adjustment Board in some way breached its duty or went beyond its power in relying as it did upon the finding of this board of doctors.
5
III. Section 3, First (m) provides that Adjustment Board awards 'shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award.'6 The award of the Board in this case, based on the central finding that petitioner was wrongfully removed from service is twofold, consisting both of an order of reinstatement and the money award for lost earnings. Thus there arises the question of whether the District Court may open up the Board's finding on the merits that the railroad wrongfully removed petitioner from his job merely because one part of the Board's order contained a money award. We hold it cannot. This Court time and again has emphasized and re-emphasized that Congress intended minor grievances of railroad workers to be decided finally by the Railroad Adjustment Board. In Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622, the Court gave a Board decision the same finality that a decision of arbitrators would have. In Union Pacific R. Co. v. Price, 360 U.S. 601, 79 S.Ct. 1351, 3 L.Ed.2d 1460, the Court discussed the legislative history of the Act at length and pointed out that it 'was designed for effective and final decision of grievances which arise daily' and that its 'statutory scheme cannot realistically be squared with the contention that Congress did not purpose to foreclose litigation in the courts over grievances submitted to and disposed of by the Board * * *.' 360 U.S., at 616, 79 S.Ct., at 1359. Also in Brotherhood of Locomotive Engineers v. Louisville & Nashville R. Co., 373 U.S. 33, 83 S.Ct. 1059, 10 L.Ed.2d 172, the Court said that prior decisions of this Court had made it clear that the Adjustment Board provisions were to be considered as 'compulsory arbitration in this limited field,' p. 40, 83 S.Ct. p. 1063, 'the complete and final means for settling minor disputes,' p. 39, 83 S.Ct. p. 1062, and 'a mandatory, exclusive, and comprehensive system for resolving grievance disputes.' P. 38, 83 S.Ct. p. 1062.
6
The Railway Labor Act as construed in the foregoing and other opinions of this Court does not allow a federal district court to review an Adjustment Board's determination of the merits of a grievance merely because a part of the Board's award, growing from its determination on the merits, is a money award. The basic grievance here—that is, the complaint that petitioner has been wrongfully removed from active service as an engineer because of health—has been finally, completely, and irrevocably settled by the Adjustment Board's decision. Consequently, the merits of the wrongful removal issue as decided by the Adjustment Board must be accepted by the District Court.
7
IV. There remains the question of further proceedings in this case with respect to the money aspect of the Board's award. The Board did not determine the amount of back pay due petitioner on account of his wrongful removal from service. It merely sustained petitioner's claim for 'reinstatement with pay for all time lost from October 15, 1955.' Though the Board's finding on the merits of the wrongful discharge must be accepted by the District Court, it has power under the Act to determine the size of the money award. The distinction between court review of the merits of a grievance and the size of the money award was drawn in Brotherhood of Locomotive Engineers v. Louisville & Nashville R. Co., supra, at pp. 40—41, 83 S.Ct. p. 1063, 1064, when it was said that the computation of a time-lost award is 'an issue wholly separable from the merits of the wrongful discharge issue.' On this separable issue the District Court may determine in this action how much time has been lost by reason of the wrongful removal of petitioner from active service, and any proper issues that can be raised with reference to the amount of money necessary to compensate for the time lost. In deciding this issue as to how much money petitioner will be entitled to receive because of lost time, the District Court will bear in mind the fact that the decision on the merits of the wrongful removal issue related to the time when the Board heard and decided the case. Eleven years have elapsed since that time, long enough for many changes to have occurred in connection with petitioner's health. This would, of course, be relevant in determining the amount of money to be paid him in a lawsuit which can, as the statute provides, proceed on this separable issue 'in all respects as other civil suits' where damages must be determined.
8
The judgments of the courts below are reversed and the cause is remanded to the District Court for consideration not inconsistent with this opinion.
9
Reversed and remanded.
1
48 Stat. 1185, 45 U.S.C. § 151 et seq. (1964 ed.).
2
Section 3, First (i), 48 Stat. 1191, 45 U.S.C. § 153, First (i) (1964 ed.). This section also provides that disputes between railroad employees and their employers 'failing to reach an adjustment * * * may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.'
3
Section 3, First (p), 48 Stat. 1192, 45 U.S.C. § 153, First (p) (1964 ed.), provides:
'If a carrier does not comply with an order of a division of the Adjustment Board within the time limit in such order, the petitioner * * * may file in the District Court of the United States for the district in which he resides or in which is located the principal operating office of the carrier * * * a petition setting forth briefly * * * the order of the division of the Adjustment Board in the premises. Such suit in the District Court of the United States shall proceed in all respects as other civil suits, except that on the trial of such suit the findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated * * *. The district courts are empowered, under the rules of the court governing actions at law, to make such order and enter such judgment, by writ of mandamus or otherwise, as may be appropriate to enforce or set aside the order of the division of the Adjustment Board.'
4
192 F.Supp. 882, 198 F.Supp. 402. The third opinion written by the court is not reported.
5
Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co., 353 U.S. 30, 39, 77 S.Ct. 635, 1 L.Ed.2d 622.
6
48 Stat. 1191, 45 U.S.C. § 153, First (m) (1964 ed.).
| 89
|
382 U.S. 281
86 S.Ct. 423
15 L.Ed.2d 324
PENNSYLVANIA PUBLIC UTILITY COMMISSIONv.The PENNSYLVANIA RAILROAD CO.
No. 375.
Dec. 13, 1965.
William A. Goichman and Joseph C. Bruno, for appellant.
Hugh B. Cox and Windsor F. Cousins, for appellee.
PER CURIAM.
1
In the three-judge District Court from which this appeal comes to us, the Pennsylvania Railroad Company sued to enjoin the enforcement of a duly promulgated order of the Pennsylvania Public Utility Commission on the sole ground that the order conflicted with a federal statute. The Commission, among other defenses, contended that the federal statute was unconstitutional, but the District Court decided the case in favor of the railroad and issued an appropriate injunction. 240 F.Supp. 233.
2
It follows from our recent decision in Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194, that the injunction sought by the railroad, being based on incompatibility between the state order and the federal statute, was not grounded in the 'unconstitutionality' of a state measure so as to require a three-judge tribunal under 28 U.S.C. § 2281 (1964 ed.). Nor is § 2282, requiring such a tribunal in order to enjoin 'any Act of Congress for repugnance to the Constitution,' invoked by the Commission's defense that the federal statute is unconstitutional; it is settled that this provision 'does not provide for a case where the validity of an act of Congress is merely drawn in question, albeit that question be decided, but only for a case where there is an application for an interlocutory or permanent injunction to restrain the enforcement of an act of Congress.' International Ladies' Garment Workers' Union v. Donnelly Garment Co., 304 U.S. 243, 250, 58 S.Ct. 875, 879, 82 L.Ed. 1316.
3
Because a three-judge court was not required to adjudicate this suit, this Court has no jurisdiction under 28 U.S.C. § 1253 (1964 ed.) to entertain a direct appeal. It does not appear from the record that the Commission lodged a protective appeal in the Court of Appeals, and the time to do so has almost certainly expired. The appeal to this Court occurred before Swift & Co. v. Wickham, supra, was decided, and there is no reason why the Commission should be deprived of appellate review. In accordance with precedent, we vacate the judgment below and remand the case to the District Court so that it may enter a fresh decree from which a timely appeal may be taken to the Court of Appeals. See Phillips v. United States, 312 U.S. 246, 254, 61 S.Ct. 480, 484, 85 L.Ed. 800.
4
It is so ordered.
5
Judgment vacated and case remanded to District Court.
| 89
|
382 U.S. 288
86 S.Ct. 419
15 L.Ed.2d 331
UNITED STATES of America, Plaintiff,v.STATE OF LOUISIANA et al.
No. 9, Original.
Supreme Court of the United States
December 13, 1965
1
Solicitor General Marshall, for the United States.
2
Jack P. F. Gremillion, Atty. Gen. of Louisiana, John L. Madden, Asst. Atty. Gen., Paul M. Hebert, Victor A. Sachse, Thomas W. Leigh, Oliver P. Stockwell and J. J. Davidson, for the State of Louisiana.
3
Supplemental Decree.
4
The motion by the United States for the entry of a supplemental decree is granted and a supplemental decree is entered.
5
For the purpose of giving effect to the conclusions of this Court as stated in its opinion, announced May 31, 1960, 363 U.S. 1, 121, 80 S.Ct. 961, 4 L.Ed.2d 1025, 1096, and the decree entered by this Court on December 12, 1960, 364 U.S. 502, 81 S.Ct. 258, 5 L.Ed.2d 247, it is ordered, adjudged and decreed as follows:
6
1. As against the defendant State of Louisiana, the United States is entitled to all the lands, minerals and other natural resources underlying the Gulf of Mexico, south of grid line y=499,394.40 on the Louisiana Plane Coordinate System, South Zone, that are more than three geographical miles seaward from a line described as follows (coordinates refer to the Louisiana Plane Coordinate System, South Zone):
7
Beginning at the point where grid line y=499,394.40 intersects the line of mean low water on the eastern side of Chandeleur Island, thence southerly along the line of mean low water on the eastern side of the Chandeleur Islands, and by straight lines across channels between the islands, to the southwesternmost extremity of Errol Shoal, at latitude 29 35 48 N., longitude 89 00 48 W. (x =2,737,287.96, y=345,654.41); thence to Pass a Loutre lighted whistle buoy 4, at latitude 29 09 55.9 N., longitude 88 56 54.4 W. (x=2,761,169.19, y=189,334.14); thence to South Pass lighted whistle buoy 2, at latitude 28 58 44.9 N., longitude 89 06 36.9 W. (x=2,710,848.37, y=120,529.25); thence to Southwest Pass entrance mid-channel lighted whistle buoy, at latitude 28 52 37.1 N., longitude 89 25 57.1 W. (x=2,608,424.04, y=81,526.86); thence to Ship Shoal lighthouse at latitude 28 54 51.512 N., longitude 91 04 15.985 W. (x=2,083,908.09, y=90,154.12); thence to Calcasieu Pass lighted whistle buoy 1, at latitude 29 36 21.7 N., longitude 93 19 07.6 W. (x=1,369,080.08, y=347,060.52); thence to Sabine Pass lighted whistle buoy 1, at latitude 29 36 16 N., longitude 93 48 31.2 W. (x=1,213,416.18, y=349,514.72).
8
2. The State of Louisiana is not entitled to any interest in the lands, minerals or resources described in paragraph 1 hereof, and said State, its privies, assigns, lessees and other persons claiming under it are hereby enjoined from interfering with the rights of the United States in such lands, minerals and resources.
9
3. With the exceptions provided by § 5 of the Submerged Lands Act, 67 Stat. 32, 43 U.S.C. § 1313 (1964 ed.), the State of Louisiana is entitled, as against the United States, to all the lands, minerals and other natural resources in the portions of the disputed area described in this paragraph. These portions of the disputed area are bounded on the landward side by the seaward boundary of Zone 1, as delineated on Exhibit A to the parties' Interim Agreement of October 12, 1956, as amended, on file with the Court. They are bounded on the seaward side by lines three geographical miles seaward from baselines as herein described, consisting of (1) segments of, or the line of mean low water on the mainland, on naturally formed islands, or on naturally formed low-tide elevations situated wholly or partly within three geographical miles from the low-water line on the mainland or on such islands, and (2) straight lines across designated opening in the low-water line. As used herein, 'salient point' means any point on the low-water line, so situated that there is some area within three geographical miles seaward from such point that is more than three geographical miles from all other points on the baseline. These baselines are ambulatory and subject to continual modification by natural or artificial changes in the shore line to the extent the law may provide, but for purposes of present identification and practical administration until notice by either party to the other they are described herein by their coordinates in the Louisiana Plane Coordinate System, South Zone, as shown by Exhibits 1 to 4, inclusive, filed with the Motion of the United States herein. Each three-mile line is to be drawn in such manner that every point on the three-mile line is exactly three geographical miles from the nearest point or points on the baseline, continuing in each direction until it meets another specified boundary of the particular portion of the disputed area. The portions of the disputed area referred to herein are as follows:
10
'(a) In the vicinity of Calcasieu Pass, all that portion of the disputed area bounded on the landward side by the seaward boundary of Zone 1, and bounded on the seaward side by a line three geographical miles seaward from the tip of the western jetty, at x =1,362,416, y=397,822; from the tip of the eastern jetty, at x=1,363,392, y=397,870; and from a straight line between said points.
11
(b) In the vicinity of March Island and Atchafalaya Bay, all that portion of the disputed area bounded on the landward side by the seaward boundary of Zone 1, and bounded on the seaward side by a line three geographical islands and low-tide elevations at x=1,778,769, y=324,757; x=1,782,391, y=321,876; x=1,783,067, y=321,331; x=1,791,584, y=307,545; x=1,809,845, y=296,285; x=1,820,994, y=291,804; x=1,833,527, y=271,423; x=1,834,019, y=270,301; x=1,835,344, y=270,839; x=1,843,467, y=275,912; x=1,844,320, y=278,858; x=1,875,200, y=285,729; and x=1,877,582, y=283,274; three geographical miles seaward from a straight line between South Point, Marsh Island, at x=1,863,474, y=298,772, and Point Au Fer, at x=1,993,420, y=241,930; and three geographical miles seaward from a salient point on a low-tide elevation at x=1,987,371, y=241,272.
12
(c) In East Bay, all that portion of the disputed area bounded on the landward side by the seaward boundary of Zone 1, and bounded on the seaward side by a line three geographical miles seaward from salient points on the mean low-water line at x=2,639,545, y=126,825; x=2,641,835, y=129,725; and x=2,644,940, y =134,910, and from the line of mean low water which may be considered to consist of straight lines between said points; three geographical miles seaward from a salient point on a low-tide elevation at x=2,672,315, y=141,745; three geographical miles seaward from the line of mean low-water which may be considered to consist of straight lines between the points x=2,673,481, y=141,245; x=2,678,500, y=139,250; and x=2,682,605, y=136,895; and three geographical miles seaward from a salient point on the mean low-water line at x=2,685,325, y=133,800.
13
(d) Between Pass a Loutre and Breton Island, all that portion of the disputed area west of grid line x=2,740,710, bounded on the landward side by the seaward boundary of Zone 1, and bounded on the seaward side by a line three geographical miles seaward from salient points on the mainland, on islands, or on low-tide elevations at x=2,738,320, y=210,230; x=2,737,065, y=210,155; x=2,727,090, y=209,195; x=2,709,100, y=220,995; x=2,708,835, y=221,440; x=2,707,635, y=223,640; x=2,701,500, y=232,820; x=2,700,735, y=234,640; x=2,689,305, y=250,395; and x=2,688,235, y=252,215; and three geographical miles seaward from a straight line between the eastern headland of Main Pass, at x=2,681,915, y=257,755, and the southern extremity of Breton Island, at x=2,678,009, y=294,303.
14
4. The United States is not entitled, as against the State of Louisiana, to any interest in the lands, minerals or resources described in paragraph 3 hereof, with the exceptions provided by § 5 of the Submerged Lands Act, 43 U.S.C. § 1313.
15
5. All sums now held impounded by the United States under the Interim Agreement of October 12, 1956, as amended, derived from or attributable to the lands, minerals or resources described in paragraph 1 hereof are hereby released to the United States absolutely, and the United States is hereby relieved of any obligation under said agreement to impound any sums hereafter received by it, derived from or attributable to said lands, minerals, or resources.
16
6. All sums now held impounded by the State of Louisiana under the Interim Agreement of October 12, 1956, as amended, derived from or attributable to the lands, minerals or resources described in paragraph 3 hereof are hereby released to the State of Louisiana absolutely, and the State of Louisiana is hereby relieved of any obligation under said agreement to impound any sums hereafter received by it, derived from or attributable to said lands, minerals or resources.
17
7. Within 75 days after the entry of this decree—
18
(a) The State of Louisiana shall pay to the United States or other persons entitled thereto under the Interim Agreement of October 12, 1956, as amended, all sums, if any, now held impounded by the State of Louisiana under said agreement, derived from or attributable to the lands, minerals or resources described in paragraph I hereof;
19
(b) The State of Louisiana shall render to the United States and file with the Court a true, full, accurate and appropriate account of any and all other sums of money derived by the State of Louisiana since June 5, 1950, either by sale, leasing, licensing, exploitation or otherwise from or on account of any of the lands, minerals or resources described in paragraph 1 hereof;
20
(c) The United States shall pay to the State of Louisiana or other persons entitled thereto under the Interim Agreement, as amended, all sums, if any, now held impounded by the United States under said agreement, derived from or attributable to the lands, minerals or resources described in paragraph 3 hereof;
21
(d) The United States shall render to the State of Louisiana and file with the Court a true, full, accurate and appropriate account of any and all other sums of money derived by the United States either by sale, leasing, licensing, exploitation or otherwise from or on account of the lands, minerals or resources described in paragraph 3 hereof.
22
8. Within 60 days after receiving the account provided for by paragraph 7(b) or 7(d) hereof, a party may serve on the other and file with the Court its objections thereto. Thereafter either party may file such motion or motions at such time as may be appropriate to have the account settled in conjunction with the issues concerning the areas still in dispute. If neither party files such an objection within 60 days, then each party shall forthwith pay to any third person any amount shown by such accounts to be payable by it to such person, and the party whose obligation to the other party is shown by such accounts to be the greater shall forthwith pay to the other party the net balance so shown to be due. If objections are filed but any undisputed net balance is shown which will be due from one party to the other party or to any third person regardless of what may be the ultimate ruling on the objections, the party so shown to be under any such obligation shall forthwith pay each such undisputed balance to the other party or other person so shown to be entitled thereto. The payments directed by paragraphs 7(a) and 7(c) hereof shall be made irrespective of the accounting provided for by paragraphs 7(b) and 7(d).
23
9. Until further order of the Court or agreement of the parties filed with the Court, both parties shall continue to recognize as a single lease for all purposes any existing lease now being administered under the Interim Agreement of October 12, 1956, as amended, that covers lands, minerals, or resources, part of which are described in paragraph 1 or paragraph 3 hereof and part of which remain in dispute (including any existing leasehold partly in Zone 1 and partly within the area confirmed to the United States by this decree); but the party hereby awarded part of the lands, minerals, or resources covered by any such lease shall hereafter administer the lease as to such lands, minerals, or resources as sole lessor, shall be entitled to receive from the lessee all payments hereafter due under said lease to the extent that they are derived from or attributable to such part of the lands, minerals, or resources covered by the lease, and shall be under no duty to account for or impound any payments so received. Either party, for its own convenience, may nevertheless impound any or all of such moneys if it wishes to do so, or may terminate such impoundment in whole or in part at any time, without further order of the Court or agreement of the other party. In all other respects each such lease (including any existing leasehold partly in Zone 1 and partly within the area confirmed to the United States by this decree) shall continue to be administered as at present.
24
10. Nothing in this supplemental decree or the proceedings leading to it shall prejudice any rights, claims or defenses of the United States or of the State of Louisiana with respect to the remainder of the disputed area or past or future payments derived therefrom or attributable thereto or the operation of the Interim Agreement of October 12, 1956, as amended, with respect to such area and payments.
25
11. The Court retains jurisdiction to entertain such further proceedings, enter such orders and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to the decree of December 12, 1960, herein, or to this decree, including, if necessary, further adjustments of the accounting between the parties with respect to the lands, minerals and resources described in paragraph 1 and paragraph 3 of this decree.
26
THE CHIEF JUSTICE and Mr. Justice CLARK took no part in the consideration or decision of this motion or in the formulation of this decree.
| 910
|
382 U.S. 266
86 S.Ct. 411
15 L.Ed.2d 314
UNITED STATES, Petitioner,v.Ray F. SPEERS, Trustee in Bankruptcy of the Kurtz Roofing Company, etc.
No. 17.
Argued Oct. 20, 1965.
Decided Dec. 13, 1965.
Richard M.Roberts, Washington, D.C., for petitioner.
Robert B. Gosline, Toledo, Ohio, for respondent.
Mr. Justice FORTAS delivered the opinion of the Court.
1
This case presents the question whether a federal tax lien, unrecorded as of the time of bankruptcy, is valid as against the trustee in bankruptcy.
2
On June 3, 1960, a District Director of Internal Revenue assessed more than $14,000 in withholding taxes and interest against the Kurtz Roofing Company. Demand for payment was made, and the taxpayer refused to pay. This gave rise to a federal tax lien.1 Notice of the lien was not filed either in the Office of the Recorder of Erie County, Ohio, where Kurtz had its principal place of business, or in the United States District Court, at least not before February of 1961.2 On June 20, 1960, Kurtz filed a petition in bankruptcy. In the ensuing proceedings the trustee took the position that the federal tax lien was invalid as to him. He relied upon § 70, sub. c of the Bankruptcy Act, 11 U.S.C. § 110, sub. c (1964 ed.), which, he asserted, vested in him the rights of a 'judgment creditor,' and upon 26 U.S.C. § 6323 (1964 ed.), which entitles a 'judgment creditor' to prevail over an unrecorded federal tax lien. Section 70, sub. c provides in part:
3
'The trustee, as to all property, whether or not coming into possession or control of the court, upon which a creditor of the bankrupt could have obtained a lien by legal or equitable proceedings at the date of bankruptcy, shall be deemed vested as of such date with all the rights, remedies, and powers of a creditor then holding a lien thereon by such proceedings, whether or not such a creditor actually exists.'
Section 6323 provides in part:
4
'(T)he lien imposed by section 6321 shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed by the Secretary or his delegate * * *.'
5
The trustee's position, in short, was that his statutory lien attached to all property of the bankrupt as of the date of filing of the petition; that he was a statutory 'judgment creditor'; and that, under § 6323, the unrecorded tax lien of the United States was not valid against him. This position, if sustained, would reduce the Government's claim for unpaid taxes to the status of an unsecured claim, sharing fourth-class priority with unsecured state and local tax claims under § 64, sub. a(4) of the Bankruptcy Act, 11 U.S.C. § 104, sub. a(4) (1964 ed.), and ranking behind administrative expenses, certain wage claims, and specified creditors' expenses.3 The result in the present case is that instead of recovering the full amount owing to it, the United States would receive only 53.48%.
6
The trustee's position was affirmed by the referee, the District Court, and the Court of Appeals for the Sixth Circuit. 335 F.2d 311. Certiorari was granted, 379 U.S. 958, 85 S.Ct. 665, 13 L.Ed.2d 553, to resolve the conceded conflict between decisions of Courts of Appeals for the Second, Third, and Ninth Circuits4 and the decision below. We affirm.
7
Despite the language of the applicable statutory provisions, § 70, sub. c and § 6323, most of the Courts of Appeals passing on the question have sustained the validity of an unrecorded federal tax lien as against the trustee in bankruptcy. They have arrived at this result on the authority of a statement in United States v. Gilbert Associates, Inc., 345 U.S. 361, 364, 73 S.Ct. 701, 703, 97 L.Ed. 1071, that the phrase 'judgment creditor' in § 3672, the predecessor of § 6323, was used by Congress 'in the usual, conventional sense of a judgment of a court of record * * *.'
8
It is clear, however, that this characterization was not intended to exclude a trustee in bankruptcy from the scope of the phrase 'judgment creditor.' The issue before the Court in Gilbert was quite different.
9
Gilbert involved neither a bankruptcy proceeding nor the rights of a trustee in bankruptcy. Gilbert arose out of a state insolvency proceeding. The issue was whether an unrecorded federal tax lien was valid as against a municipal tax assessment which had neither been reduced to judgment nor accorded 'judgment creditor' status by any statute. The asserted superior position of the local tax claim was based upon the fact that the New Hampshire court, in the Gilbert insolvency proceeding, had, for the first time, conveniently characterized the local tax claim as 'in the nature of a judgment,' relying upon the procedures used by the taxing authorities.5 Because the effect of federal tax liens should not be determined by the diverse rules of the various States, the Court held that the municipality was not a 'judgment creditor' for purposes of the federal statute. The Court said:
10
'A cardinal principle of Congress in its tax scheme is uniformity, as far as may be. Therefore, a 'judgment creditor' should have the same application in all the states. In this instance, we think Congress used the words 'judgment creditor' in § 3672 in the usual, conventional sense of a judgment of a court of record, since all states have such courts. We do not think Congress had in mind the action of taxing authorities who may be acting judicially as in New Hampshire and some other states, where the end result is something 'in the nature of a judgment,' while in other states the taxing authorities act quasi-judicially and are considered administrative bodies.' (Footnotes omitted.) 345 U.S., at 364, 73 S.Ct., at 703.6
11
In view of the nature of the claim for which superiority was asserted and because its dominant theme was the need for uniformity in construing the meaning of § 3672, Gilbert cannot be considered as governing the entirely different situation with respect to the rights conferred by Congress upon a trustee in bankruptcy. In the latter circumstance we are confronted with a specific congressional Act defining the status of the trustee. We have no problem of evaluating widely differing state laws. We have no possibility or unequal application of the federal tax laws, depending upon variances in the terms and phraseology of different state and local tax assessment statutes and judicial rulings thereon. Here we are faced with a uniform federal scheme—the rights of the trustee in bankruptcy in light of an unequivocal statement by Congress that he shall have 'all' the rights of a judicial lien creditor with respect to the bankrupt's property.
12
The legislative history lends support to the conclusion drawn from the statutory language that the purpose of Congress was to invalidate an unrecorded federal tax lien as against the trustee in bankruptcy. It was in 1910 that Congress enacted the predecessor of § 70, sub. c, vesting the trustee 'with all the rights, remedies, and powers of a judgment creditor.'7 Three years later, in 1913, Congress enacted the predecessor of § 6323, providing that an unrecorded federal tax lien was invalid as against a 'judgment creditor.'8 These two statutes, with their corresponding references to 'judgment creditor,' co-existed for nearly 40 years. During that period, and prior to our decision in Gilbert in 1953, the only Court of Appeals squarely to pass upon the question decided that the trustee was a 'judgment creditor' for purposes of avoiding an unrecorded federal tax lien. United States v. Sands, 174 F.2d 384, 385 (C.A.2d Cir.), rejecting contrary dictum in In re Taylorcraft Aviation Corp., 168 F.2d 808, 810 (C.A.6th Cir.).
13
In amending the Bankruptcy Act in 1950, Congress deleted from § 70, sub. c the phrase 'judgment creditor,' providing instead that whether or not the bankrupt's property was in possession or control of the court, the trustee was to have 'all the rights, remedies, and powers' of a creditor holding a judicial lien.9 Elsewhere in the same legislation it was recognized that the category of those holding judicial liens includes judgment creditors,10 and a judicial lien holder generally has 'greater rights than a judgment creditor,'11 It is clear, therefore, that, with respect to the present problem, it was not the purpose of the 1950 amendments to reduce the powers of the trustee. As the House report accompanying the legislation noted, the revision of § 70, sub. c 'has been placed in the bill for the protection of trustees in bankruptcy * * * also to simplify, and to some extent expand, the general expression of the rights of trustees in bankruptcy.'12
14
In 1954 Congress dealt explicitly with the question whether the trustee ought to prevail against unrecorded federal tax liens. An unsuccessful effort was made, reflected in the House version of the proposed § 6323, expressly to exclude 'artificial' judgment creditors like the trustee in bankruptcy.13 At conference, the House conferees acceded to the views of the Senate, which deemed it 'advisable to continue to rely upon judicial interpretation of existing law instead of attempting to prescribe specific statutory rules.'14 The Government suggests that the 'existing law' sought to be preserved was this Court's decision in Gilbert. But as of the date of the 1954 amendments, Gilbert had not yet been applied by any court to displace the rights of the trustee in bankruptcy as against an unrecorded federal tax lien. So far as that issue is concerned, it is more likely that reference to 'existing law' was to the specific and then unchallenged rule announced by the Second Circuit in United States v. Sands, supra, and by other courts in other cases holding the trustee to have the rights of a judgment creditor.15 As we have already noted, Gilbert is not inconsistent with the rule announced in Sands.
15
In recent years, and since the view began to spread that Gilbert compelled exclusion of the trustee from the benefits of § 6323, legislation has been introduced expressly to reiterate the trustee's power to upset unrecorded federal tax liens.16 Such legislation was proposed not to alter the statutory scheme, but to remove what was throught to be an erroneous gloss placed upon it by the courts. Thus, both Senate and House committee reports accompanying a recent bill, H.R. 394, 88th Cong., reflect the belief that those decisions upon which the Government now relies 'would appear to be contrary to the legislative purpose which gave the trustee all the rights of an ideal judicial lien creditor.'17
16
In light of these legislative materials—the adoption of the phrase 'judgment creditor' in both statutes, the legislative broadening of § 70, sub. c in 1950, and the expressions of congressional discontent with recent decisions excluding the trustee from § 6323—we are persuaded that, read together, § 6323 and § 70, sub. c entitle the trustee to prevail over unrecorded federal tax liens.
17
The Government seeks to ward off this result with the argument that so to read the statutes is to confer upon certain classes of creditors 'windfalls' unwarranted by the equities of their situation. The question may, however, be stated less invidiously than the argument indicates: it is whether the Government, unlike other creditors, and contrary to the general policy against secret liens, should be given advantage of a lien which it has not recorded as of the date of bankruptcy.18 It is true that the consequence of depriving the United States of claimed priority for its secret lien is to improve the relative position of creditors—if there are any not already protected by § 6323—whose security was obtained subsequent to the Government's lien and who, once the federal lien is invalidated, have a prior claim to the secured assets. And our decision will enhance the possibility that there will be something in the bankrupt's estate for those claimants whose priorities are higher than that afforded unsecured tax claims,19 as well as for state and local tax claims which share with the Federal Government the priority in § 64, sub. a(4), 11 U.S.C. § 104, sub. a(4). Whether this result is inadvisable need not detain us,20 for the question is one of policy which in our view has been decided by Congress in favor of the trustee. In any event, it is possible for the Government in cases which it deems appropriate, to avoid a result which it regards with unhappiness by promptly filing notice of its lien.21 Should experience indicate that inclusion of the trustee within § 6323 is inadvisable, the fact will not be lost upon Congress.
18
The Government advances one last and quite novel22 argument predicated upon § 67, sub. b of the Bankruptcy Act, 11 U.S.C. § 107, sub. b (1964 ed.), which provides:
19
'The provisions of section 60 of this Act to the contrary notwithstanding, statutory liens (including those) for taxes and debts owing to the United States or to any State or any subdivision thereof * * * may be valid against the trustee, even though arising or perfected while the debtor is insolvent and within four months prior to the filing of the petition * * *. Where by such laws such liens are required to be perfected and arise but are not perfected before bankruptcy, they may nevertheless be valid, if perfected within the time permitted by and in accordance with the requirements of such laws * * *.' The contention is that the lower court's reading of § 70, sub. c and § 6323 cannot be correct, for it precludes the possibility which appears to be contemplated by § 67, sub. b—that a federal tax lien not perfected until after bankruptcy may nevertheless be 'valid against the trustee.' We find no such inconsistency. The purpose of § 67, sub. b, insofar as tax claims are concerned, is to protect them from § 60, 11 U.S.C. § 96 (1964 ed.), which permits the trustee to avoid transfers made within four months of bankruptcy. Thus § 67, sub. b permits an otherwise inchoate federal tax claim to be 'perfected' by assessment and demand within the four months prior to bankruptcy or afterwards.23 It does not nullify or purport to nullify the consequences which flow from the Government's failure to file its perfected lien prior to the date when the trustee's rights as a statutory judgment creditor attach—namely, on filing of the petition in bankruptcy.24 There is no indication in the language of § 67, sub. b, in the legislative history, or in decisions of any court, that the subsection was intended to affect the construction or application of § 6323. In any event, we should hesitate to read § 67, sub. b as relevant to the relationship between § 70, sub. c and § 6323, for Congress in the very legislation proposed to clarify the trustee's rights under § 6323 did consider § 67, sub. b, and evidenced no awareness of interrelationship or of inconsistency.25
20
Affirmed.
21
Mr. Justice BLACK, dissenting.
22
Section 6323 of the 1954 Internal Revenue Code provides that an unfiled tax lien is not 'valid as against any mortgagee, pledgee, purchaser, or judgment creditor * * *.' The Court here holds that a bankruptcy trustee must be treated as if he were a 'judgment creditor' thereby reducing government tax claims to the level of unsecured creditors. I am unable to agree. A bankruptcy trustee cannot be treated as a judgment creditor except by giving that term an entirely artificial, fictional meaning. The Court justifies this extraordinary twist of meaning by reference to § 70, sub. c. of the Bankruptcy Act, 11 U.S.C. § 110, sub. c (1964 ed). That section, so far as here pertinent, provides:
23
'c. * * * The trustee, as to all property, whether or not coming into possession or control of the court, upon which a creditor of the bankrupt could have obtained a lien by legal or equitable proceedings at the date of bankruptcy, shall be deemed vested as of such date with all the rights, remedies, and powers of a creditor then holding a lien thereon by such proceedings, whether or not such a creditor actually exists.'
24
This language gives no intimation of a purpose to destroy a valid tax lien such as the Government had here when bankruptcy occurred. The section's terms simply show a purpose to make sure that all the property the bankrupt had before bankruptcy will be vested in the trustee. It stretches this language entirely too much to say it was intended to change the law so drastically that the mere appointment of a trustee could render invalid a government tax lien which was perfectly valid the moment before bankruptcy. Nor can this section fairly be read as an attempt by Congress to nullify valid government tax liens by placing the claims of all unsecured creditors of the bankrupt on the same level as valid tax liens. In writing § 70, sub. c Congress was amending the bankruptcy law, not the government tax lien law that dates back nearly 100 years. I still think, as we said in United States v. Gilbert Associates, Inc., 345 U.S. 361, 364, 73 S.Ct. 701, 97 L.Ed. 1071, that in enacting the predecessor of § 6323 Congress used the words 'judgment creditor' in 'the usual, conventional sense of a judgment of a court of record * * *.' The Second, Third, and Ninth Circuits have so construed this section. I think they were right. The Court today gives frail and inadequate support, I think, for its judicial destruction of the Government's congressionally created lien.
25
I would reverse this judgment.
1
26 U.S.C. § 6321 (1964 ed.) provides: 'If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.'
26 U.S.C. § 6322 (1964 ed.) provides: 'Unless another date is specifically fixed by law, the lien imposed by section 6321 shall arise at the time the assessment is made and shall continue until the liability for the amount so assessed is satisfied or becomes unenforceable by reason of lapse of time.'
2
In its brief in the Court of Appeals the Government for the first time stated that notice of the lien was in fact filed with the Recorder on February 9, 1961. The Statement, in the referee's certificate that notice of the lien was never filed was not controverted in the District Court and, as respondent contends, there is no proof of the February filing in the record.
3
See §§ 64, sub. a(1)—(3), 11 U.S.C. §§ 104, sub. a (1)—(3) (1964 ed.). Secured creditors, including those whose security was obtained subsequent to creation of the Government's lien, would have recourse to their security before any of the Bankruptcy Act priorities come into play. Goggin v. Division of Labor Law Enforcement of California, 336 U.S. 118, 69 S.Ct. 469, 93 L.Ed. 543; City of Richmond v. Bird, 249 U.S. 174, 39 S.Ct. 186, 63 L.Ed. 543. Administrative expenses and wage claims precede all other statutory liens on personal property not accompanied by possession if not enforced by sale prior to bankruptcy. § 67, sub. c, 11 U.S.C. § 107, sub. c (1964 ed.); Goggin, supra, 336 U.S. 126 130, 69 S.Ct. 473—475.
4
See Brust v. Sturr, 237 F.2d 135 (C.A.2d Cir.); In re Fidelity Tube Corp., 278 F.2d 776 (C.A.3d Cir.) (Kalodner and Hastie, JJ., dissenting), cert. denied sub nom. Borough of East Newark v. United States, 364 U.S. 828, 81 S.Ct. 66, 5 L.Ed.2d 56; Simonson v. Granquist, 287 F.2d 489 (C.A.9th Cir.) (Hamley, J., expressing contrary views), rev'd on other grounds, 369 U.S. 38, 82 S.Ct. 537, 7 L.Ed.2d 557. See also United States v. England, 226 F.2d 205 (C.A.9th Cir.); In re Taylorcraft Aviation Corp., 168 F.2d 808, 810 (C.A.6th Cir.) (dictum).
5
345 U.S., at 363, 73 S.Ct., at 703, quoting from Petition of Gilbert Associates, Inc., 97 N.H. 411, 414, 90 A.2d 499, 502.
6
The Government's brief also emphasized this concern for uniformity in administration of the federal tax laws. See brief for petitioner in Gilbert, No. 440, 1952 Term, pp. 22—24, where the Government argued: 'Congress did not intend to subordinate federal tax liens to local tax liens merely because by state statute or state court decisions the local tax assessments are for local purposes denominated 'judgments' * * *. Moreover, in holding that under our 'decisions' and in 'this jurisdiction' the Town's tax assessments are 'judgments,' the court below failed to give sufficient heed to the repeated declarations of this Court that the federal revenue laws should be interpreted 'so as to give a uniform application to a nationwide scheme of taxation,' and hence their provisions are not to be deemed subject to state law unless the language of the section involved, expressly or by necessary implication, so requires.'
7
The Act of June 25, 1910, c. 412, 36 Stat. 840, § 8, provided in part: 'such trustees, as to all property in the custody or coming into the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings thereon; and also, as to all property not in the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a judgment creditor holding an execution duly returned unsatisfied.'
8
Act of March 4, 1913, c. 166, 37 Stat. 1016.
9
Act of March 18, 1950, c. 70, § 2, 64 Stat. 26, now 11 U.S.C. § 110, sub. c (1964 ed.). Prior to the amendment, § 70, sub. c characterized the trustee as a lien holder as to property in the court's possession or control and as a 'judgment creditor' as to property not so reduced to possession. See n. 7, supra; Lewis v. Manufacturers National Bank, 364 U.S. 603, 605—606, 81 S.Ct. 347, 348—349, 5 L.Ed.2d 323.
10
Act of March 18, 1950, c. 70, § 1, 64 Stat. 25, now 11 U.S.C. § 96, sub. a (4) (1964 ed.). See 4 Collier, Bankruptcy 70.49, n. 3, at 1415 (1964 ed.).
11
See, e.g., H.R.Rep. No. 745, 86th Cong., 1st Sess., to accompany H.R. 7242, p. 10: 'As a matter of general law the holder of a lien by legal proceedings has greater rights than a judgment creditor * * *. It would seem anomalous to allow judgment creditors to prevail over secret tax liens and to deny that right to a judicial lien holder.'
12
H.R.Rep. No. 1293, 81st Cong., 1st Sess., to accompany S. 88, p. 7; U.S.Code Congressional Service 1950, p. 1989. That this was the tenor of the amendment is generally conceded. See, e.g., In re Fidelity Tube Corp., 278 F.2d 776, 781, 786—787 (both majority and dissenting opinions); 4 Collier, op. cit. supra, at 1415; Seligson, Creditors' Rights, 32 N.Y.U.L.Rev. 708, 710 (1957).
13
The proposed legislation was to make clear that 'such protection is not extended to a judgment creditor who does not have a valid judgment obtained in a court of record and of competent jurisdiction' and that 'particular persons shall not be treated as judgment creditors because State or Federal law artificially provides or concedes such persons rights or privileges of judgment creditors, or even designates them as such, when they have not actually obtained a judgment in the conventional sense.' H.R.Rep. No. 1337, 83d Cong., 2d Sess., to accompany H.R. 8300, p. A407; U.S.Code Congressional and Administrative News 1954, p. 4554. See Treas.Reg. on Procedure and Administration (1954 Code) § 301.6323—1 (26 CFR § 301.6323—1), incorporating the material rejected by the Eighty-third Congress.
14
S.Rep. No. 1622, 83d Cong., 2d Sess., to accompany H.R. 8300, p. 575; U.S.Code Congressional and Administrative News 1954, p. 5224; H.R.Conf.Rep. No. 2543, 83d Cong., 2d Sess., to accompany H.R. 8300, p. 78.
15
E.g., Sampsell v. Straub, 194 F.2d 228, 231 (C.A.9th Cir.), cert. denied, 343 U.S. 927, 72 S.Ct. 761, 96 L.Ed. 1338; McKay v. Trusco Finance Co., 198 F.2d 431, 433 (C.A.5th Cir.); In re Lustron Corp., 184 F.2d 789 (C.A.7th Cir.), cert. denied sub nom. Reconstruction Finance Corp. v. Lustron Corp., 340 U.S. 946, 71 S.Ct. 531, 95 L.Ed. 682.
16
On two occasions the proposed legislation was approved by the appropriate House and Senate committees, and one bill received the assent of both Houses. See H.R. 7242, 86th Cong., § 6, vetoed by President on September 8, 1960, 106 Cong.Rec. 19168; H.R. 394, 88th Cong., § 6; H.R. 136, 89th Cong., § 6.
17
H.R.Rep. No. 454, 88th Cong., 1st Sess., p. 10; S.Rep. No. 1133, 88th Cong., 2d Sess., p. 11.
18
In enacting the predecessor of § 6323 in 1913, Congress seems generally to have answered this question in the negative—and against secret liens. See H.R.Rep. No. 1018, 62d Cong., 2d Sess., pp. 1—2.
19
See § 64, sub. a (1)—(3), 11 U.S.C. § 104, sub. a (1) (3), giving priority to claims for administrative expenses, wages, and certain creditors' expenses. The claims of general creditors are, of course, in no way affected by our decision. And in some circumstances administrative expense and wage claimants would in any case prevail over the Government's lien. See n. 3, supra.
20
We note that failure of the Government to record its lien may work a hardship upon persons subsequently extending credit in ignorance of the unrecorded lien, and that nondisclosure may induce others to incur administrative or other expenses which they would not incur if there were no hope of repayment. Moreover, state and local governments might reduce their claims to judgment if they knew of the existence of a federal lien. See Memorandum of Chairman, Drafting Committee of National Bankruptcy Conference, contained in S.Rep. No. 1133, 88th Cong., 2d Sess., to accompany H.R. 394, pp. 24—25.
21
In its letter to Senator Eastland opposing H.R. 394, dated September 8, 1961, the Treasury asserted that 'The Service has, as a matter of administrative practice, exercised forbearance as a creditor in cases when there exists a reasonable possibility that the business can regain financial stability. Enactment of the proposed amendments * * * could well force the service to change this practice, which it is believed has been proved by experience to be highly desirable.' S.Rep. No. 1133, 88th Cong., 2d Sess., p. 18. This same argument was made to an earlier Congress and rejected. See letter from Treasury, dated Aug. 9, 1960, in opposition to H.R. 7242, contained in S.Rep. No. 1871, 86th Cong., 2d Sess., p. 36.
22
In the Court of Appeals the Government advanced, as an alternative basis for disposition of the case, the contention that pursuant to § 67, sub. b the alleged filing of notice in February of 1961 retroactively validated the lien as against the trustee. The court declined to reach the merits of this claim, noting that it had not been presented either to the referee or to the District Court and that there was no proof of record with respect to the alleged February filing. 335 F.2d, at 314.
The § 67, sub. b argument raised in this Court differs from that rejected below, for that subsection is now cited to us as an aid in construing the relationship between § 70, sub. c and § 6323. Insofar as it is relevant to the particular problem of statutory construction presented by this case, we regard the § 67, sub. b argument as properly before us, for 'Where the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived.' United States v. Fisher, 2 Cranch 358, 386, 2 L.Ed. 304 (Marshall, C.J.). See also United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788; Estate of Sanford v. Commissioner of Internal Revenue, 308 U.S. 39, 42—44, 60 S.Ct. 51, 55—56, 84 L.Ed. 20; United States v. Aluminum Co. of America, 148 F.2d 416, 429 (C.A.2d Cir.) (L.Hand, J.).
23
See Simonson v. Granquist, 369 U.S. 38, 41, 82 S.Ct. 537, 539, 7 L.Ed.2d 557; 4 Collier, op. cit. supra, 67.20, at 183; cf. Lewis v. Manufacturers National Bank, supra, 364 U.S., at 609, 81 S.Ct., at 350.
24
4 Collier, op. cit. supra, 67.26, at 283—286, and 70.48, at 1407.
25
See legislative materials cited at notes 11, 16, and 17, supra.
| 1112
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382 U.S. 283
86 S.Ct. 429
15 L.Ed.2d 327
Anthony ALBANESEv.N. V. NEDERL. AMERIK STOOMV. MAATS. et al.
No. 523.
INTERNATIONAL TERMINAL OPERATING CO., INC.
v.
N. V. NEDERL. AMERIK STOOMV. MAATS. et al.
No. 557.
N. V. NEDERL. AMERIK STOOMV. MAATS.
v.
Anthony ALBANESE et al.
No. 654.
Supreme Court of the United States
December 13, 1965
Rehearing Denied No. 557 Jan. 31, 1966.
See 382 U.S. 1030, 86 S.Ct. 644.
Rehearing Denied No. 523 Jan. 17, 1966.
See 382 U.S. 100, 86 S.Ct. 534.
Philip F. DiCostanzo and Robert Klonsky, for petitioner Albanese.
Sidney A. Schwartz and Joseph Arthur Cohen, for petitioner International Terminal Operating Co.
Edmund F. Lamb, for N. V. Nederl. Amerik Stoomv. Maats.
Arthur J. Mandell, for American Trial Lawyers Ass'n, Admiralty Section, as amicus curiae.
On Petitions for Writs of Certiorari to the United States Court of Appeals for the Second Circuit.
PER CURIAM.
1
The motion of the American Trial Lawyers Association for leave to file a brief, as amicus curiae, is granted. The petition for certiorari in No. 523, Albanese v. N. V. Nederl. Amerik Stoomv. Maats., is also granted.
2
We believe that the judgment of the Court of Appeals setting aside the judgment for petitioner Albanese on the ground that the trial court incorrectly charged the jury on the issue of negligence is erroneous. Gutierrez v. Waterman S. S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297.
3
In its opinion the Court of Appeals also stated that the District Court incorrectly instructed the jury as to the applicability of the Safety and Health Regulations for Longshoring1 on the question of the shipowner's liability. But we do not read that court's opinion as making this an independent ground for ordering a new trial. So we not only reverse the judgment of the Court of Appeals in the case of Albanese but reinstate the District Court's judgment in his favor.
4
The petitions in No. 557, International Terminal Operating Co. v. N. V. Nederl. Amerik Stoomv. Maats.; and No. 654, N. V. Nederl. Amerik Stoomv. Maats. v. Albanese, are denied. It is so ordered.
5
Petitions denied.
6
Mr. Justice HARLAN would have denied certiorari in No. 523, Albanese v. N. V. Nederl. Amerik Stoomv. Maats., but the writ having been granted, he would have set the issues for plenary consideration. He concurs in the denial of certiorari in No. 557, International Terminal Operating Co. v. N. V. Nederl. Amerik Stoomv. Maats., and No. 654, N. V. Nederl, Amerik Stoomv. Maats. v. Albanese.
1
29 CFR § 9.1 et seq. (1963), now 29 CFR § 1504.1 (1965), promulgated by the Secretary of Labor under the authority of Public Law 85-742, 72 Stat. 835, 33 U.S.C. § 941 (1964 ed.).
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