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382 U.S. 205
86 S.Ct. 373
15 L.Ed.2d 272
INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AFL-CIO, LOCAL 283, Petitioner,v.Russell SCOFIELD et al. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 133, UAW, AFL-CIO, Petitioner, v. The FAFNIR BEARING CO. et al.
Nos. 18, 53.
Argued Oct. 20, 1965.
Decided Dec. 7, 1965.
[Syllabus from pages 205-206 intentionally omitted]
Joseph L. Rauh, Jr., Washington, D.C., for petitioners.
Sol. Gen. Thurgood Marshall for respondents.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The two cases before us present converse sides of a single question—whether parties who are wholly successful in unfair labor practice proceedings before the National Labor Relations Board have a right to intervene in the Court of Appeals review proceedings.
2
In No. 18 (Scofield), the Union Local was charged by four individual employees with violations of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq. (1964 ed.), for fining certain Union members for exceeding incentive pay ceilings set by the Union. The General Counsel of the Board issued a complaint. After a full hearing, the Board dismissed the complaint, 145 N.L.R.B. 1097. The individual employees then sought review in the Seventh Circuit. The General Counsel filed an answer supporting the decision. At this point, the Union filed a timely motion of intervention, alleging that it would be directly affected should the appellate court set aside the Board's decision and direct the entry of a remedial order against it. Neither the individual employees nor the Board opposed intervention. A division of the Seventh Circuit denied the motion to intervene, but authorized the Union to file a brief as amicus curiae without leave to participate in oral argument. The Union sought review here, and we granted certiorari to review the denial of intervention because of the importance of the issue and the conflict among the courts of appeals, 379 U.S. 959, 85 S.Ct. 666, 13 L.Ed.2d 554. Further proceedings were stayed pending the completion of our review.
3
In No. 53 (Fafnir), the Local filed unfair labor practice charges against the Fafnir Bearing Company. The charging party alleged that the company had violated its statutory bargaining obligation by refusing to permit the contracting Union to conduct its own time studies of job operations in the plant. The Union allegedly needed to conduct these studies to ascertain whether it should proceed to arbitration. The General Counsel issued a complaint, a hearing was held, and the Board entered a cease-and-desist order against the company, 146 N.L.R.B. 1582. The company petitioned for review in the Second Circuit, and the Board filed a cross-petition for enforcement. The Union—the successful party before the Board—moved to intervene, alleging numerous grounds in support. Both the company and the Board opposed intervention. The Second Circuit denied the motion, although cognizant of the difficulties of the problem, and authorized the Union to file an amicus brief. Fafnir Bearing Co. v. N.L.R.B., 2 Cir., 339 F.2d 801. We granted certiorari, 380 U.S. 950, 85 S.Ct. 1087, 13 L.Ed.2d 968, and consolidated Fafnir with Scofield in order to consider both facets of the intervention problem.
4
We hold that both the successful charged party (in Scofield) and the successful charging party (in Fafnir) have a right to intervene in the Court of Appeals proceeding which reviews or enforces Labor Board orders. We think that Congress intended to confer intervention rights upon the successful party to the Labor Board proceedings in the court in which the unsuccessful party challenges the Board's decision.
5
A threshold question concerns our jurisdiction to grant certiorari. Under § 1254(1) of the Judicial Code,1 only a 'party' to a case in the Court of Appeals may seek review here. In both these cases, the Union seeking certiorari was denied intervention and relegated to the status of an amicus curiae. Because an amicus is not a 'party' to the case, it would not have been entitled to file a petition to review a judgment on the merits by the Court of Appeals, Ex parte Leaf Tobacco Board, 222 U.S. 578, 581, 32 S.Ct. 833, 56 L.Ed. 323; Ex parte Cutting, 94 U.S. 14, 20—22, 24 L.Ed. 49. In view of our decision herein, we think that § 1254(1) permits us to review the orders denying intervention. See Brotherhood of Railroad Trainmen v. Baltimore & O.R. Co., 331 U.S. 519, 67 S.Ct. 1387, 91 L.Ed. 1646.
I.
6
Congress has made a careful adjustment of the individual and administrative interests throughout the course of litigation over a labor dispute. The Labor Act does not, however, provide explicitly for intervention at the appellate court level. Section 10(f) of the Act, 29 U.S.C. § 160(f) (1964 ed.), serves as our guide, even though it is silent on the intervention problem. It states, in pertinent part:
7
'Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business, or in the United States Court of Appeals for the District of Columbia, by filing in such a court a written petition praying that the order of the Board be modified or set aside.'
8
Similarly, no specific standards govern the propriety of intervention in Labor Board review proceedings. The Rules of the Courts of Appeals typically provide: 'A person desiring to intervene in a case where the applicable statute does not provide for intervention shall file with the court and serve upon all parties a motion for leave to intervene.'2
9
Lacking a clear directive on the subject, we look to the statutory design of the Act. Cf. Scripps-Howard Radio v. Commission, 316 U.S. 4, 11, 62 S.Ct. 875, 880, 86 L.Ed. 1229. Of course, in considering the propriety of intervention in the courts of appeals, our discussion is limited to Labor Board review proceedings. Federal agencies are not fungibles for intervention purposes—Congress has treated the matter with attention to the particular statutory scheme and agency.
10
In some instances, the words of the statute themselves elicit an answer. When the Board enters a final order against the charged party, it is clear that the phrase '(a)ny person aggrieved' in § 10(f) enables him to seek immediate review in the appropriate Court of Appeals. Alternatively, if the Board determines that a complaint should be dismissed, the charging party has a statutory right to review as a 'person aggrieved.' A hybrid situation occurs when the Board dismisses certain portions of the complaint and issues an order on others. As to that portion which results in a remedial order against him, the charged party is aggrieved; likewise, the charging party is aggrieved with respect to the portion of the decision dismissing the complaint. Each one is a 'party' in a consolidated appeal, and has invariably been granted leave to intervene with regard to the portion of the order on which the Board found in his favor.3
11
Scofield serves as an example of another variant in review proceedings. The unsuccessful charging party to the Board proceedings petitioned for review, and the successful charged party wished to intervene. The vast majority of the courts have recognized his right to do so.4 Recognition of intervention rights in this instance is in complete accord with the statements in Ford Motor Co. v. National Labor Relations Board, 305 U.S. 364, 369, 373, 59 S.Ct. 301, 305, 307, 83 L.Ed. 221, that:
12
'While Section 10(f) assures to any aggrieved person opportunity to contest the Board's order, it does not require an unnecessary duplication of proceedings. The aim of the Act is to attain simplicity and directness both in the administrative procedure and on judicial review. * * *
13
'* * * The jurisdiction to review the orders of the Labor Relations Board is vested in a court with equity powers, and while the court must act within the bounds of the statute and without intruding upon the administrative province, it may adjust its relief to the exigencies of the case in accordance with the equitable principles governing judicial action. The purpose of the judicial review is consonant with that of the administrative proceeding itself,—to secure a just result with a minimum of technical requirements. * * *'
14
To allow intervention to the charged party in the first appellate review proceeding is to avoid 'unnecessary duplication of proceedings,' and to adhere to the goal of obtaining 'a just result with a minimum of technical requirements.' Analysis of the Act's machinery in practice so indicates. A decision of the reviewing court to set aside a Board order dismissing a complaint has the effect of returning the case to the Board for further proceedings. This normally results in the Board's entering an order against the charged party. From this remedial order, as noted, the charged party is aggrieved and may seek review. Judicial time and energy is then expended in pursuit of issues already resolved in the first appeal.5 Moreover, the second appeal could lead to undesirable 'circuit shopping' and useless proliferation of judicial effort. Under § 10(f), an aggrieved person has the option of obtaining review either in the circuit in which he maintains his residence or place of business or in the Court of Appeals for the District of Columbia Circuit. In the second appellate proceeding, he could obtain a hearing in the circuit which did not originally decide the validity of the Board's dismissal of the complaint. Permitting intervention in the first review thus centralizes the controversy and limits it to a single decision, accelerating final resolution. This is in accord with one of the objectives of the Labor Act—the prompt determination of labor disputes.
15
Permitting intervention also insures fairness to the would-be intervenor. If intervention is permitted, the parties to the Board proceedings are able to present their arguments on the issues to a reviewing court which has not crystallized its views. To be sure, if intervention is denied in the initial review proceeding, the charged party would not be bound by the decision under technical res judicata rules. Still, the salient facts having been resolved and the legal problems answered in this initial review, subsequent litigation serves little practical value to the potential intervenor. In the second appellate proceeding, the Court of Appeals would almost invariably defer to the initial decision as a matter of stare decisis or of comity.6 See, e.g., Henry I. Siegel Co., Inc. v. National Labor Relations Board, 340 F.2d 309; Zdanok v. Glidden Co., 2 Cir., 327 F.2d 944, 949—950, cert. denied, 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298.
16
Allowing intervention does not affect the discretionary review powers of this Court. One occupying the status of intervenor in the Court of Appeals proceeding may seek certiorari from the decision there, United Steelworkers v. National Labor Relations Board, 373 U.S. 908, 83 S.Ct. 1298, 10 L.Ed.2d 410; 376 U.S. 492, 84 S.Ct. 899, 11 L.Ed.2d 863; International Union of Mine Workers v. Eagle-Picher Co., 325 U.S. 335, 338—339, 65 S.Ct. 1166, 1167—1168, 89 L.Ed. 1649. Denial of intervention in the initial review proceedings—and the attendant remand to the Board and second appeal to the Court of Appeals—only results in a delay of the time when the disaffected party may seek review here. Should we decide to grant certiorari, the first review would seem the more propitious time, since all the parties are then before the Court and the dispute has been fully developed without inconvenience to either private party. United Steelworkers v. National Labor Relations Board, 376 U.S. 492, 84 S.Ct. 899, affords an apt illustration. The Court of Appeals had permitted intervention to the charged party who sought review from the adverse decision there. We reversed unanimously. The Board itself had not sought certiorari because 'the Solicitor General concluded that other cases were entitled to priority in selecting the limited number of cases which the government (could) properly ask this Court to review.' Memorandum for the NLRB, p. 2, filed in connection with the petition for certiorari, No. 89, October Term, 1963. Had the charged party been denied intervention in the Court of Appeals, the decision of the Government not to apply for certiorari—unrelated to the merits of the cause—would have unnecessarily postponed resolution on that important issue.7
17
In fact, the Labor Board itself agrees that intervention by charged parties will not impair effective discharge of its duties and may well promote the public interest. The rights typically secured to an intervenor in a reviewing court—to participate in designating the record, to participate in prehearing conferences preparatory to simplification of the issues, to file a brief, to engage in oral argument, to petition for rehearing in the appellate court or to this Court for certiorari—are not productive of delay nor do they cause complications in the appellate courts. Appellate records in Labor Board cases are generally complete, and whatever material the charged party may see fit to add to the appendix will not affect the burden in preparation. Participation in defining the issues before the court guarantees that all relevant material is brought to its attention, and makes the briefs on the merits more meaningful. The charged party is usually accorded the right as an amicus to file a brief on the merits even if denied intervention. Participation in oral argument does not necessarily enlarge the total time allocated, since parties aligned on the same side are usually required to share the time.8 And, as noted, petitioning for certiorari at this time has the salutary effect of insuring prompt adjudication. Further, if a charged party permitted to intervene decides to acquiesce in the decision or if certiorari is denied by this Court, it is likely that he will then stipulate to the entry of an order against him. This would obviate the need for supplemental agency or court proceedings. On the other hand, an amicus—with the exception of the right to file a brief—might be unable adequately to present all the relevant data to the court.
18
Finally, an element of fortuity would be injected by the denial of intervention to a successful party in the Board proceedings. When the charged party loses before the Board, he is accorded a statutory right to immediate review and may seek or oppose this Court's ultimate review of the case. If he prevails at the agency level, however, denial of intervention deprives him of the rights accorded a losing party, even though the issue before the reviewing court is identical—whether a remedial order should have been entered against the charged party. These considerations lead us to the assumption that Congress would not intend, without clearly expressing a view to the contrary, that a party should suffer by his own success before the agency.
19
Additionally, helpful analogies may be found in the Judicial Review Act of 1950, governing intervention in the Courts of Appeals by private parties directly affected by agency orders,9 and in the Federal Rules of Civil Procedure.10 We take these provisions to mean that Congress has exhibited a concern that interested private parties be given a right to intervene and participate in the review proceedings involving the specified agency and its orders.
II.
20
The problem of whether intervention should be granted to the successful charging party to the Labor Board proceedings presents considerations somewhat distinct from the case of the intervening charged party. Resolution of the problem is no easy matter, and it is understandable that the courts have divided on the issue.11 Still, we believe that Congress intended intervention rights to obtain.
21
The Board opposes intervention in Fafnir. A charged party may incur a liability on account of an order being entered against him. Fairness to him thus requires that he be allowed to intervene to preclude that possibility. On the other hand, the Board reasons, the charging party stands only to become a beneficiary of an order entered.12 As such, he is but another member of the public whose interests the Board is designed to serve. The Labor Board is said to be the custodian of the 'public interest,' to the exclusion of the so-called 'private interests' at stake. Support for this view is claimed to be found in our decision in Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738 (1940). Also, the Board fears that enabling the intervenor to petition for certiorari from an adverse circuit decision will be inimical to the public interest. We disagree.
22
In prior decisions, this Court has observed that the Labor Act recognizes the existence of private rights within the statutory scheme.13 These cases have, to be sure, emphasized the 'public interest' factor. To employ the rhetoric of 'public interest,' however, is not to imply that the public right excludes recognition of parochial private interests. A perusal of the statutory scheme and of the Board's Rules and Regulations is illustrative.
23
The statutory machinery begins with the filing of an unfair labor practice charge by a private person, § 10(b), 61 Stat. 146; see also, 24 Fed.Reg. 9102 (1959), 29 CFR § 102.9 (1965). When the General Counsel issues a complaint and the proceeding reaches the adjudicative stage, the course the hearing will take is in the agency's control, but the charging party is accorded formal recognition: he participates in the hearings as a 'party';14 he may call witnesses and cross-examine others, may file exceptions to any order of the trial examiner, and may file a petition for reconsideration to a Board order, 28 Fed.Reg. 7973 (1963), as amended, 29 CFR § 102.46 (1965). Of course, if the Board dismisses the complaint, he can obtain review as a person aggrieved, which serves the 'public interest' by guaranteeing that the Board interpretation of the relevant provisions accords with the intent of Congress.15
24
And that the charging party may have vital 'private rights' in the Board proceeding is clear in this very case, which also involves, potentially, a breach of the parties' collective bargaining agreement.16 Under our decisions in the Steelworkers trilogy, 363 U.S. 564, 574, 593, 80 S.Ct. 1343, 1347, 1358, 4 L.Ed.2d 1403, 1409, 1424, and Carey v. Westinghouse Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320, the Union could take whatever contractual claim it had to arbitration and from there to a federal court. And while it is true that the rights and duties under § 301(a) of the Labor Act, 61 Stat. 156, are not coextensive with those redressed in Labor Board proceedings, a determination by an appellate court that the Union has no statutory right to conduct its own time studies will surely have an impact upon a later decision by an arbitrator or an appellate court under § 301(a) on the contractual issue.
25
In short, we think that the statutory pattern of the Labor Act does not dichotomize 'public' as opposed to 'private' interests. Rather, the two interblend in the intricate statutory scheme.17 Nor do we think that our holding in Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S.Ct. 561, casts doubt on these notions. The Court there held that private parties who initiated unfair labor practice charges may not prosecute a contempt action against the charged party in the court which enforces the Labor Board order.18 In the same case, the private parties had been permitted to intervene in the Court of Appeals when the merits of the Board's decision were at stake, 309 U.S., at 263, 60 S.Ct. at 562. We find nothing inconsistent in denying the right of a private party to institute a contempt proceeding—where the Board's expertness in achieving compliance with orders is challenged—and, on the other hand, in permitting intervention in a proceeding already in the court for decision. When the court is to rule on the merits of the Board's order, the Act supports the view that it is the court and not the agency which will define the public interest, see § 10(d), 49 Stat. 454, Ford Motor Co. v. National Labor Relations Board, 305 U.S. 364, 59 S.Ct. 301.
26
The Board also argues that permitting intervention will adversely affect its tactical or budgetary decision not to bring a case here for review. But the opportunity is open to the Board to advise this Court whether a case that the intervening charging party brings here is an appropriate vehicle to raise important issues. And Congress has entrusted to this Court, rather than the Labor Board, discretionary jurisdiction to review cases decided by the Courts of Appeals.19
27
Many of the considerations which favor intervention in Scofield are also pertinent here.20 Of special note is the capriciousness we would have to ascribe to Congress in refusing to afford the successful party to a Labor Board proceeding an opportunity tantamount to that of the unsuccessful party in persuading an appellate court. The charging party, like the charged party, should not be prejudiced by his success before the agency. Accordingly, we reverse both cases and remand them to the respective courts for further proceedings.
28
It is so ordered.
29
Reversed and remanded.
1
Section 1254(1), 28 U.S.C. § 1254(1) (1964 ed.), provides:
'Cases in the courts of appeals may be reviewed by the Supreme Court * * *:
'(1) By writ of certiorari granted upon the petition of any party to any civil * * * case, before or after rendition of judgment or decree.'
2
Second Circuit Rule 13(f); Seventh Circuit Rule 14(f). The other circuits which provide for intervention have substantively identical rules: First Circuit Rule 16(6); Third Circuit Rule 18(6); Fourth Circuit Rule 27(6); Sixth Circuit Rule 13(6); Eighth Circuit Rule 27(f); Ninth Circuit Rule 34(6); Tenth Circuit Rule 34(6); District of Columbia Circuit Rule 38(f).
3
Darlington Mfg. Co. v. National Labor Relations Board, 325 F.2d 682 (C.A.4th Cir.), vacated and remanded on other grounds, sub nom. Textile Workers v. Darlington Co., 380 U.S. 263, 85 S.Ct. 994, 13 L.Ed.2d 827; Industrial Union of Marine & Shipbuilding Workers v. National Labor Relations Board, 320 F.2d 615 (C.A.3d Cir.); National Labor Relations Board v. Wooster Div. of Borg-Warner Corp., 236 F.2d 898 (C.A.6th Cir.); see also American Newspaper Publishers Assn. v. National Labor Relations Board, 190 F.2d 45 (C.A.7th Cir.).
4
Carrier Corp. v. National Labor Relations Board, 311 F.2d 135 (C.A.2d Cir.), reversed on other grounds, sub nom. United Steelworkers of America, AFL-CIO v. National Labor Relations Board, 376 U.S. 492, 84 S.Ct. 899, 11 L.Ed.2d 863; Local 1441, Retail Clerks International Assn. v. National Labor Relations Board, 117 U.S.App.D.C. 120, 326 F.2d 663; Amalgamated Clothing Workers of America v. National Labor Relations Board, 324 F.2d 228 (C.A.2d Cir.); Minnesota Milk Co. v. National Labor Relations Board, 314 F.2d 761 (C.A.8th Cir.); Great Western Broadcasting Corp. v. National Labor Relations Board, 310 F.2d 591 (C.A.9th Cir.); Selby-Battersby & Co. v. National Labor Relations Board, 259 F.2d 151 (C.A.4th Cir.); Kovach v. National Labor Relations Board, 229 F.2d 138 (C.A.7th Cir.). Contra, Superior Derrick Corp. v. National Labor Relations Board, 273 F.2d 891 (C.A.5th Cir.), cert. denied, 364 U.S. 816, 81 S.Ct. 47, 5 L.Ed.2d 47; Amalgamated Meat Cutters, etc. v. National Labor Relations Board, 267 F.2d 169 (C.A.1st Cir.), cert. denied, 361 U.S. 863, 80 S.Ct. 121, 4 L.Ed.2d 104; Haleston Drug Stores, Inc. v. National Labor Relations Board, 190 F.2d 1022 (C.A.9th Cir.).
5
There are, of course, cases in which the Court of Appeals will remand to the Board to take additional evidence or to reconsider the order in light of litigational developments. In these cases, there is a greater opportunity for the party originally victorious before the Board successfully to persuade it or the appellate court then in the case in which no additional evidence need be taken. Still, the considerations discussed herein strongly suggest the propriety of intervention in these cases as well, especially since, at the time a motion for leave to intervene is filed, the reviewing court will not be fully apprised of the issues involved in the case.
Then, too, only 12 proceedings in which the Board had entered an order dismissing the complaint and the charging party appealed the dismissal in the Court of Appeals occurred during the 1964 fiscal year. See 29 NLRB Ann.Rep. 201, Table 19 (1964). In eight of these, the Board orders were affirmed in full. Ibid. The small caseload gives further support for the notion that the courts of appeals, and the Board, will not be disadvantaged by allowing intervention to the charged party.
6
In the rare instance in which the reviewing court does not abide by these principles, an even more aggravated situation could result. In the second review proceeding, if the now-successful charging party is denied intervention and the appellate court takes a different view of the applicable law, the charging party might later have the opportunity to seek review again as a 'person aggrieved.' Thus, three or even more review proceedings could be engendered out of the failure to permit intervention at the most convenient stage—the initial review proceeding. Such an incongruous result should not be sanctioned in light of our statement in Ford Motor Co. v. National Labor Relations Board, 305 U.S. 364, 370, 59 S.Ct. 301, that although 'there are two proceedings, separately carried on the docket, they were essentially one so far as any question as to the legality of the Board's order was concerned.'
7
The Labor Board may also adversely affect the rights of the private parties in other instances. For example, the Board may decide a case and later re-evaluate its position at a time when that case is before an appellate court. The General Counsel, in such a situation, cannot be expected wholeheartedly to attempt to convince an appellate court of the correctness of a doctrine which the Board itself has abandoned.
8
First Circuit Rule 28(3); Second Circuit Rule 23(c); Third Circuit Rule 31(3); Fourth Circuit Rule 15(3); Fifth Circuit Rule 25(3); Sixth Circuit Rule 20(3); Seventh Circuit Rule 21(b); Eighth Circuit Rule 13(c); Ninth Circuit Rule 20(3); Tenth Circuit Rule 20(3); District of Columbia Circuit Rule 19(c).
Additionally, all the circuits have rules which permit the court to increase the time for oral argument upon a showing of good cause.
9
Review of commission orders in general is governed by the provisions of the Judicial Review Act of 1950 (the Hobbs Act), 64 Stat. 1129, 5 U.S.C. §§ 1031—1042 (1964 ed.). The provision regarding appellate court intervention, 5 U.S.C. § 1038, provides as follows:
'The Attorney General shall be responsible for and have charge and control of the interests of the Government in all court proceedings authorized by this chapter. The agency, and any party or parties in interest in the proceeding before the agency whose interests will be affected if an order of the agency is or is not enjoined, set aside, or suspended, may appear as parties thereto of their own motion and as of right, and be represented by counsel in any proceeding to review such order. * * *'
10
The Federal Rules of Civil Procedure, of course, apply only in the federal district courts. Still, the policies underlying intervention may be applicable in appellate courts. Under Rule 24(a)(2) or Rule 24(b)(2), we think the charged party would be entitled to intervene. See Missouri-Kansas Pipe Line Co. v. United States, 312 U.S. 502, 505—506, 61 S.Ct. 666, 667, 85 L.Ed. 975; Textile Workers Union of America v. Allendale, 96 U.S.App.D.C. 401, 403—404, 266 F.2d 765, 767—768.
The Advisory Panel on Labor-Management Relations Law issued a report, S. Doc. No. 81, 86th Cong., 2d Sess. (1960), which contained a statement of policy that 'any party to NLRB proceedings should be allowed to intervene in the appellate proceedings,' p. 17.
11
The cases which have permitted intervention usually have not discussed the question, e.g., National Labor Relations Board v. Johnson, 322 F.2d 216 (C.A.6th Cir.); Kearney & Trecker Corp. v. National Labor Relations Board, 210 F.2d 852 (C.A.7th Cir.), cert. denied, sub nom. Kearney-Trecker Employees, UAW v. National Labor Relations Board, 348 U.S. 824, 75 S.Ct. 38, 99 L.Ed. 649; West Texas Utilities Co. v. National Labor Relations Board, 87 U.S.App.D.C. 179, 184 F.2d 233, cert. denied, 341 U.S. 939, 71 S.Ct. 999, 95 L.Ed. 1366. Contra, National Labor Relations Board v. Retail Clerks Assn., 243 F.2d 777, 783 (C.A.9th Cir.); Stewart Die Casting Corp. v. National Labor Relations Board, 132 F.2d 801 (C.A.7th Cir.); Aluminum Ore Co. v. National Labor Relations Board, 131 F.2d 485, 488, 147 A.L.R. 1 (C.A.7th Cir.).
12
Cf. Hart and Wechsler, The Federal Courts and The Federal System, 326 (1953):
'Haven't you noticed how frequently the protected groups in an administrative program pay for their protection by a sacrifice of procedural and litigating rights? The agency becomes their champion and they stand or fall by it. Does this phenomenon reflect a disregard or a recognition of the equities of the situation?' See also Jaffe, The Public Right Dogma in (1946).
13
National Labor Relations Board v. Fansteel Metallurgical Corp., 306 U.S. 240, 258, 59 S.Ct. 490, 497, 83 L.Ed. 627; Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271; Nathanson v. National Labor Relations Board, 344 U.S. 25, 27, 73 S.Ct. 80, 82, 97 L.Ed. 23; Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246. See Jaffe, The Individual Right to Initiate Administrative Process, 25 Iowa L.Rev. 485, 528—531 (1940).
14
The NLRB Rules and Regulations and Statements of Procedure, 29 CFR § 102.8 (1965), afford the charging party this status. The section provides as follows:
'The term 'party' as used herein shall mean * * * any person named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in any Board proceeding, including, without limitation, any person filing a charge or petition under the act, any person named as respondent, as employer, or as party to a contract in any proceeding under the act * * *.' (Emphasis added.)
15
For an analysis of the rights of a charging party before the Board, see Comment, 32 U.Chi.L.Rev. 786 (1965). Of course, the considerations involved in determining whether the charging party has certain rights before the Board are not dispositive on the question of appellate intervention. In the first place, the need for centralized control over the agency hearings and the standards under which they operate is much greater at the administrative than the appellate level, where perforce an adequate record has been made for adjudication. Also, the statistics of the NLRB reveal that over 97% of the unfair labor practice charges are resolved before the circuit court has entered a decree. 29 NLRB Ann.Rep. 178—179, Table 7 (1964). This winnowing process diminishes once a case is lodged in the circuit court and falls within our supervisory power over the federal courts. Then, too, manpower and budgetary considerations are of great concern at the administrative level. These factors are not nearly as great when a labor dispute reaches the appellate courts since the Board will invariably appear to defend its order.
16
In the Board's opinion in Fafnir, the charging party's interests were referred to a dozen times as a statutory right of the 'private party,' 146 N.L.R.B., at 1585—1587.
17
See Retail Clerks Local 137 v. Food Employers Council, Inc., 9 Cir., 351 F.2d 525.
18
The Court placed great weight upon the language and legislative history behind § 10(a), 49 Stat. 453, as it read at that time:
'The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 8) affecting commerce. This power shall be exclusive, and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law, or otherwise.' (Emphasis added.)
The italicized portion of § 10(a) was deleted in the Taft-Hartley amendments to the Wagner Act in 1947, when Congress added the union unfair labor practice provisions and enacted § 301(a). While it is true that the Labor Board does not confer a private administrative remedy, it is equally true that, since 1947, it serves substantially as an organ for adjudicating private disputes. See Report of the Advisory Panel on Labor, Management Retions Law, supra, n. 10, p. 5.
19
The Board also claims that the charging party, if permitted to intervene, will be able to thwart proposed settlements between the Board and the charged party when the case is in the appellate court. Nothing in the record indicates that this will be the consequence of allowing intervention and we intimate no view on the question.
20
As in the case of the charged party, disallowing intervention could lead to duplicity in appellate review, 'circuit shopping,' unfairness to the successful party to the Board proceedings, etc.
| 89
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382 U.S. 296
86 S.Ct. 486
15 L.Ed.2d 373
E. S. EVANS et al., Petitioners,v.Charles E. NEWTON et al.
No. 61.
Argued Nov. 9 and 10, 1965.
Decided Jan. 17, 1966.
Jack Greenberg, New York City, for petitioners.
C. Baxter Jones and Frank C. Jones, Macon, Ga., for respondents.
Louis F. Claiborne, Washington, D.C., for the United States, as amicus curiae.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
In 1911 United States Senator Augustus O. Bacon executed a will that devised to the Mayor and Council of the City of Macon, Georgia, a tract of land which, after the death of the Senator's wife and daughters, was to be used as 'a park and pleasure ground' for white people only, the Senator stating in the will that while he had only the kindest feeling for the Negroes he was of the opinion that 'in their social relations the two races (white and negro) should be forever separate.' The will provided that the park should be under the control of a Board of Managers of seven persons, all of whom were to be white. The city kept the park segregated for some years but in time let Negroes use it, taking the position that the park was a public facility which it could not constitutionally manage and maintain on a segregated basis.1
2
Thereupon, individual members of the Board of Managers of the park brought this suit in a state court against the City of Macon and the trustees of certain residuary beneficiaries of Senator Bacon's estate, asking that the city be removed as trustee and that the court appoint new trustees, to whom title to the park would be transferred. The city answered, alleging it could not legally enforce racial segregation in the park. The other defendants admitted the allegation and requested that the city be removed as trustee.
3
Several Negro citizens of Macon intervened, alleging that the racial limitation was contrary to the laws and public policy of the United States, and asking that the court refuse to appoint private trustees. Thereafter the city resigned as trustee and amended its answer accordingly. Moreover, other heirs of Senator Bacon intervened and they and the defendants other than the city asked for reversion of the trust property to the Bacon estate in the event that the prayer of the petition were denied.
4
The Georgia court accepted the resignation of the city as trustee and appointed three individuals as new trustees, finding it unnecessary to pass on the other claims of the heirs. On appeal by the Negro intervenors, the Supreme Court of Georgia affirmed, holding that Senator Bacon had the right to give and bequeath his property to a limited class, that charitable trusts are subject to supervision of a court of equity, and that the power to appoint new trustees so that the purpose of the trust would not fail was clear. 220 Ga. 280, 138 S.E.2d 573. The case is here on a writ of certiorari. 380 U.S. 971, 85 S.Ct. 1338, 14 L.Ed.2d 267.
5
There are two complementary principles to be reconciled in this case. One is the right of the individual to pick his own associates so as to express his preferences and dislikes, and to fashion his private life by joining such clubs and groups as he chooses. The other is the constitutional ban in the Equal Protection Clause of the Fourteenth Amendment against state-sponsored racial inequality, which of course bars a city from acting as trustee under a private will that serves the racial segregation cause. Com. of Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792. A private golf club, however, restricted to either Negro or white membership is one expression of freedom of association. But a municipal golf course that serves only one race is state activity indicating a preference on a matter as to which the State must be neutral.2 What is 'private' action and what is 'state' action is not always easy to determine. See Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45. Conduct that is formally 'private' may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action. The action of a city in serving as trustee of property under a private will serving the segregated cause is an obvious example. See Com. of Pennsylvania v. Board of Directors of City Trusts, supra. A town may be privately owned and managed, but that does not necessarily allow the company to treat it as if it were wholly in the private sector. Thus we held in Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265, that the exercise of constitutionally protected rights on the public streets of a company town could not be denied by the owner. A State is not justified, we said, in 'permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties * * *.' Id., at 509, 66 S.Ct. at 280. We have also held that where a State delegates an aspect of the elective process to private groups, they become subject to the same restraints as the State. Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152. That is to say, when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.
6
Yet generalizations do not decide concrete cases. 'Only by sifting facts and weighing circumstances' (Burton v. Wilmington Parking Authority, supra, 365 U.S. at 722, 81 S.Ct. 856, 6 L.Ed.2d 45) can we determine whether the reach of the Fourteenth Amendment extends to a particular case. The range of government activities is broad and varied, and the fact that government has engaged in a particular activity does not necessarily mean that an individual entrepreneur or manager of the same kind of undertaking suffers the same constitutional inhibitions. While a State may not segregate public schools so as to exclude one or more religious groups, those sects may maintain their own parochial educational systems. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070.
7
If a testator wanted to leave a school or center for the use of one race only and in no way implicated the State in the supervision, control, or management of that facility, we assume arguendo that no constitutional difficulty would be encountered.3
8
This park, however, is in a different posture. For years it was an integral part of the City of Macon's activities. From the pleadings we assume it was swept, manicured, watered, patrolled, and maintained by the city as a public facility for whites only, as well as granted tax exemption under Ga.Code Ann. § 92—201. The momentum it acquired as a public facility is certainly not dissipated ipso facto by the appointment of 'private' trustees. So far as this record shows, there has been no change in municipal maintenance and concern over this facility. Whether these public characteristics will in time be dissipated is wholly conjectural. If the municipality remains entwined in the management or control of the park, it remains subject to the restraints of the Fourteenth Amendment just as the private utility in Public Utilities Commission of District of Columbia v. Pollak, 343 U.S. 451, 462, 72 S.Ct. 813, 96 L.Ed. 1068, remained subject to the Fifth Amendment because of the surveillance which federal agencies had over its affairs. We only hold that where the tradition of municipal control had become firmly established, we cannot take judicial notice that the mere substitution of trustees instantly transferred this park from the public to the private sector.
9
This conclusion is buttressed by the nature of the service rendered the community by a park. The service rendered even by a private park of this character is municipal in nature. It is open to every white person, there being no selective element other than race. Golf clubs, social centers, luncheon clubs, schools such as Tuskegee was at least in origin,4 and other like organizations in the private sector are often racially oriented. A park, on the other hand, is more like a fire department or police department that traditionally serves the community. Mass recreation through the use of parks is plainly in the public domain, Watson v. Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529; and state courts that aid private parties to perform that public function on a segregated basis implicate the State in conduct proscribed by the Fourteenth Amendment. Like the streets of the company town in Marsh v. State of Alabama, supra, the elective process of Terry v. Adams, supra, and the transit system of Public Utilities Commission of District of Columbia v. Pollak, supra, the predominant character and purpose of this park are municipal.
10
Under the circumstances of this case, we cannot but conclude that the public character of this park requires that it be treated as a public institution subject to the command of the Fourteenth Amendment, regardless of who now has title under state law. We may fairly assume that had the Georgia courts been of the view that even in private hands the park may not be operated for the public on a segregated basis, the resignation would not have been approved and private trustees appointed. We put the matter that way because on this record we cannot say that the transfer of title per se disentangled the park from segregation under the municipal regime that long controlled it.
11
Since the judgment below gives effect to that purpose, it must be and is
12
Reversed.
13
Mr. Justice WHITE.
14
As Mr. Justice BLACK emphasizes, this case comes to us in the very narrow context of a state court judgment accepting the resignation of a trustee and appointing successor trustees. The lower court judgment does not enjoin the new trustees to comply with the racial restriction in the trust, and there is therefore not presented for decision the question whether, should the trustees fail to exclude Negroes from the park, state judicial enforcement of the racial restriction would constitute discriminatory state action forbidden by the Equal Protection Clause of the Fourteenth Amendment. See Bell v. State of Maryland, 378 U.S. 226, 328—331, 84 S.Ct. 1814, 12 L.Ed.2d 822 (dissenting opinion). But we do have properly before us, in my opinion, the question of whether the Fourteenth Amendment prohibits the new trustees from voluntarily excluding Negroes. This is so because decision of the state law questions in this case was not independent of that federal question. The city's resignation, its acceptance by the state courts, and the appointment of new trustees were all based on the premise that the city could not, but private trustees could, obey the racial restriction in the trust without violation of the Federal Constitution. If that premise was incorrect, this Court should vacate the judgment below and remand for further consideration of the state law issues free from the compulsion of an erroneous view of federal law. Missouri ex rel. Southern R. Co. v. Mayfield, 340 U.S. 1, 5, 71 S.Ct. 1, 95 L.Ed. 3; Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676; State Tax Commission of Utah v. Van Cott, 306 U.S. 511, 59 S.Ct. 605, 83 L.Ed. 950.
15
That the Fourteenth Amendment prohibits operation of the park on a segregated basis so long as the city is trustee is of course not disputed. See cases cited by the majority, ante, n. 1. Whether the successor trustees may themselves operate the park on a segregated basis is the question. The majority holds that they may not. I agree, but for different reasons.
16
To a large extent the majority grounds its conclusion that exclusion of Negroes from the park after the change in trustees would be state action and thus violative of the Fourteenth Amendment on the existence of prior municipal involvement in the operation of the park.
17
'The momentum (the park) acquired as a public facility is certainly not dissipated ipso facto by the appointment of 'private' trustees. So far as this record shows, there has been no change in municipal maintenance and concern over this facility. Whether these public characteristics will in time be dissipated is wholly conjectural. * * * We only hold that where the tradition of municipal control had become firmly established, we cannot take judicial notice that the mere substitution of trustees instantly transferred this park from the public to the private sector.' Ante, p. 301.
18
It is equally evident that the record does not show continued involvement of the city in the operation of the park—the record is silent on this point. On the contrary, the city's interest would seem to lead it to cut all ties with the operation of the park. It must be as clear to the city as to this Court that if the city remains 'entwined in the management or control of the park, it remains subject to the restraints of the Fourteenth Amendment,' ante, p. 301; and should segregation in the park be barred, the residuary beneficiaries would undoubtedly press their claim that failure of the trust purpose expressed in the racial restriction results in reversion of the park property. It seems unlikely that the city would act so as unnecessarily to jeopardize the continued existence of this centrally located park, which comprises about 100 acres and is one of the city's largest parks.
19
That the city's own interest might lead it to extricate itself at once from operation of the park does not, of course, necessarily mean that it has done so; and I am no more inclined than the majority to resolve this question by conjecture. I refer to possible inferences from the city's self-interest solely to emphasize that the record affords absolutely no basis for inferring continued involvement of the city in the management and control of the park. What the majority has done is to raise a presumption of one fact by showing the absence of proof of the converse. To postulate in this manner that the city's involvement has not been dissipated is simply a disguised form of conjecture and, I submit, is an insufficient basis for decision of this case.
20
I would nevertheless hold that the racial condition in the trust may not be given effect by the new trustees because, in my view, it is incurably tainted by discriminatory state legislation validating such a condition under state law. The state legislation to which I refer is §§ 69—504 and 69—505 of the Georgia Code, which were adopted in 1905, just six years before Senator Bacon's will was executed. Sections 69—504 and 69—505 make lawful charitable trusts 'dedicated in perpetuity to the public use as a park, pleasure ground, or for other public purpose' and provide that 'the use of said park, pleasure ground, or other property so conveyed to said municipality (may) be limited to the white race only, or to white women and children only, or to the colored race only, or to colored women and children only, or to any other race, or to the women and children of any other race only * * *.'1
21
As this legislation does not compel a trust settlor to condition his grant upon use only by a racially designated class, the State cannot be said to have directly coerced private discrimination. Nevertheless, if the validity of the racial condition in Senator Bacon's trust would have been in doubt but for the 1905 statute and if the statute removed such doubt only for racial restrictions, leaving the validity of nonracial restrictions still in question, the absence of coercive language in the legislation would not prevent application of the Fourteenth Amendment. For such a statute would depart from a policy of strict neutrality in matters of private discrimination by enlisting the State's assistance only in aid of racial discrimination and would so involve the State in the private choice as to convert the infected private discrimination into state action subject to the Fourteenth Amendment. Compare Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771; Lombard v. State of Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338; Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323. Although there are no Georgia decisions directly on the point and the question is therefore not free from doubt, the available authorities have led me to conclude that §§ 69—504 and 69—505 did involve the State in the private choice by favoring private racial discrimination over private discrimination based on grounds other than race.
22
Apart from §§ 69—504 and 69—505, the Georgia statute governing the determination of permissible objects of charitable trusts is § 108—203.2 This statute 'almost copies the statute of 43d Elizabeth,' Newson v. Starke, 46 Ga. 88, 92 (1872), and has the effect of fully adopting in Georgia the common law of charities, Jones v. Habersham, 107 U.S. 174, 180, 2 S.Ct. 336, 27 L.Ed. 401. We may therefore expect general charitable trust principles to be as fully applicable in Georgia as elsewhere in the several States. Under such principles, there is grave doubt concerning whether a charitable trust for a park could be limited to the use of less than the whole public.
23
In the leading case of Commissioners for Special Purposes of Income Tax v. Pemsel, (1891) A.C. 531, 583, Lord Macnaghten established the classification of charitable trusts that, with some modifications, has since prevailed:
24
"Charity' in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads.'
25
See also Restatement (Second), Trusts § 368 (1959). A more general test of what is charitable is whether the accomplishment of the trust purpose 'is of such social interest to the community as to justify permitting property to be devoted to the purpose in perpetuity.' IV Scott on Trusts § 368, at 2629—2630 (2d ed. 1956). The first three categories identified by Lord Macnaghten designate trust purposes that have long been recognized as beneficial to the community as a whole—whether or not immediate benefit is restricted to a relatively small group—and that therefore satisfy the general test stated by Professor Scott. See Restatement (Second), Trusts § 374, comment a (1959). But the present trust falls under the fourth category and can therefore be sustained as charitable only because the generality of user beneficiaries establishes that it is beneficial to the community. Otherwise a trust to establish a country club for the use of the residents of the wealthiest part of town would be charitable. Professor Scott states this principle as follows:
26
'As we have seen, a trust to promote the happiness or well-being of members of the community is charitable, although it is not a trust to relieve poverty, advance education, promote religion or protect health. In such a case, however, the trust must be for the benefit of the members of the community generally and not merely for the benefit of a class of persons.' IV Scott on Trusts § 375.2, at 2715 (2d ed. 1956). (Emphasis added.)
27
Accord, Trustees of New Castle Common v. Megginson, 1 Boyce 361, 376, 77 A. 565, 571 (Sup.Ct.Del.1910) (trust for town common was charitable; '(i)t is public, because it relates to all the inhabitants of a particular community and not to any classification of such inhabitants, or to any group thereof separately from the other inhabitants by any distinction of race, creed, social rank, wealth, poverty, occupation, or business * * *'); Restatement, Trusts § 375, comments a and c (1935); Restatement (Second), Trusts § 375, comment a (1959); see also Bogert on Trusts § 378 (2d ed. 1964).3 Apart from the present case, no Georgia cases dealing with trusts for general community purposes have been found, see Smith, The Validity of Charitable Gifts in Georgia, 1 Ga.B.J. 16, 26—27 (Feb. 1939), but the available Georgia authorities are consistent with the rule enunciated by Scott. Compare Bramblett v. Trust Co. of Georgia, 182 Ga. 87, 185 S.E. 72 (1936) (trust to establish 'home for gentlewomen' not charitable), with Houston v. Mills Memorial Home, 202 Ga. 540, 43 S.E.2d 680 (1947) (trust for Negro old folks' home is charitable).4 On the whole, therefore, I conclude that prior to the 1905 legislation it would have been extremely doubtful whether § 108—203 authorized a trust for park purposes when a portion of the public was to be excluded from the park.
28
Sections 69—504 and 69—505 clearly permit exclusion of a portion of the public if such exclusion is on racial grounds. At the same time, those sections appear to make nonracial restrictions on the user of a park created by trust even more doubtful. Section 69—504 authorizes the conveyance of land 'dedicated in perpetuity to the public use as a park' and also provides that such a conveyance may limit user on racial grounds. The natural construction of this provision would be that it authorizes a trust only for the use of the whole public or for the use of a racially designated subpart of the public, but not for the use of some other portion of the public such as men only or Irish persons only. Such an interpretation follows from the maxim expressio unius est exclusio alterius and from the dedication cases to which the majority refers, ante, at pp. 300-301, which indicate that the expression 'dedicated in perpetuity to the public use as a park' means dedication to the public as a whole and not some portion of the public. See also Western Union Telegraph Co. v. Georgia R. & Banking Co., 227 F. 276, 285 (D.C.S.D.Ga.1915). ("There can be no dedication, strictly speaking, to private uses, nor even to uses public in their nature, but the enjoyment of which is restricted to a limited part of the public.") One commentator has suggested that § 69—504 was intended to expand clause 4 of § 108—203, see note 2, supra, i.e., 'to enlarge 'public works' or 'public conveniences' to include public parks or pleasure grounds * * *.' Smith, The Validity of Charitable Gifts in Georgia, 1 Ga.B.J. 16, 27 (Feb. 1939). On that assumption, the sole authority for holding gifts in trust for park purposes to be charitable would be § 69—504, and that section clearly makes nonracial restrictions on use of such parks more doubtful than racial restrictions. Even if § 69—504 is regarded as a clarification of prior law, rather than an addition to it, it has the same effect of casting doubt on the validity of nonracial restrictions.
29
This case must accordingly be viewed as one where the State has forbidden all private discrimination except racial discrimination. As a result, 'the State through its regulations has become involved to such a significant extent' in bringing about the discriminatory provision in Senator Bacon's trust that the racial restriction 'must be held to reflect * * * state policy and therefore to violate the Fourteenth Amendment.' Robinson v. State of Florida, 378 U.S. 153, 156—157, 84 S.Ct. 1693, 1695, 12 L.Ed.2d 771. For the reasons stated, I would vacate the judgment of the Georgia court and remand the case for further proceedings.
30
Mr. Justice BLACK, dissenting.
31
I find nothing in the United States Constitution that compels any city or other state subdivision to hold title to property it does not want or to act as trustee under a will when it chooses not to do so. And I had supposed until now that the narrow question of whether a city could resign such a trusteeship and whether a state court could appoint successor trustees depended entirely on state law. Here, however, the Court assumes that federal power exists to reverse the Supreme Court of Georgia for affirming a Georgia trial court's decree, which, as the State Supreme Court held, did only these 'two things: (1) Accepted the resignation of the City of Macon as trustee of Baconsfield; and (2) appointed new trustees,' 220 Ga. 280, 284, 138 S.E.2d 573, 576.
32
The State Supreme Court's interpretation of the scope and effect of this Georgia decree should be binding upon us unless the State Supreme Court has somehow lost its power to control and limit the scope and effect of Georgia trial court decrees relating to Georgia wills creating Georgia trusts of Georgia property. A holding that ignores this state power would be so destructive of our state judicial systems that it could find no support, I think, in our Federal Constitution or in any of this Court's prior decisions. For myself, I therefore accept the decision of the Georgia Supreme Court as holding only what it declared it held, namely, that the trial court committed no error under Georgia law in accepting the City of Macon's resignation as trustee and in appointing successor trustees to execute the Bacon trust.
33
I am not sure that the Court is passing at all on the only two questions the Georgia Supreme Court decided in approving the city's resignation as trustee and the appointment of successors. If the Court is holding that a State is without these powers, it is certainly a drastic departure from settled constitutional doctrine and a vastly important one which, I cannot refrain from saying, deserves a clearer explication than it is given. Ambiguity cannot, however, conceal the revolutionary nature of such a holding, if this is the Court's holding, nor successfully obscure the tremendous lopping off of power heretofore uniformly conceded by all to belong to the States. This ambiguous and confusing disposition of such highly important questions is particularly disturbing to me because the Court's discussion of the constitutional status of the park comes in the nature of an advisory opinion on federal constitutional questions the Georgia Supreme Court did not decide. Consequently, for all the foregoing reasons and particularly since the Georgia courts decided no federal constitutional question, I agree with my Brother HARLAN that the writ of certiorari should have been dismissed as improvidently granted.
34
Questions of this Court's jurisdiction would be different, of course, if either the mere resignation or appointment of trustees under a will was prohibited by some federal constitutional provision. But there is none. The Court implies, however, that the city's resignation and the state court's appointment of new trustees amounted to 'state-sponsored racial inequality,' which, of course, if correct, would present a federal constitutional question. This suggestion rests on a further implication by the Court that the Georgia court's decree would result in the operation of Baconsfield Park on a racially segregated basis. The record here, for several reasons, can support no such implications: (1) the State Supreme Court specifically limited the effect of the decree it affirmed to approval of the city's resignation as trustee and the appointment of new ones; (2) the new trustees were not directed to operate the park on a discriminatory basis; and (3) there is no indication that they have done so. Furthermore, where a valid law makes a certain use of property held in trust illegal, responsibility for its illegal use cannot be escaped by putting it in the hands of new trustees. Cf., e.g., Mormon Church v. United States, 136 U.S. 1, 47—48, 10 S.Ct. 792, 34 L.Ed. 481.
35
The ambiguous language used by the Court even casts doubt upon Georgia's power to hold that the trust property here can revert to the heirs of Senator Bacon if the conditions upon which he created the trust should become impossible to carry out. The heirs of Senator Bacon raised the issue of reversion below, but neither court reached it. So far as I have been able to find, the power of a State to decide such a question has been taken for granted in every prior opinion this Court has ever written touching this subject. I believe that Georgia's complete power to decide this question is so clear that no doubt should be cast on it as I think the Court's opinion does. But if this Court is to exercise jurisdiction in this case and hold, despite the fact that the state court's decree did not adjudicate any such question, that the new successor trustees cannot constitutionally operate the park in accordance with Senator Bacon's will, then I think that the Court should explicitly state that the question of reversion to his heirs is controlled by state law and remand the case to the Georgia Supreme Court to decide that question.
36
Nothing that I have said is to be taken as implying that Baconsfield Park could at this time be operated by successor trustees on a racially discriminatory basis. Questions of equal protection of all people without discrimination on account of color are of paramount importance in this Government dedicated to equal justice for all. We can accord that esteemed principle the respect it is due, however, without distorting the constitutional structure of our Government by taking away from the States that which is their due.
37
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
38
This decision, in my opinion, is more the product of human impulses, which I fully share, than of solid constitutional thinking. It is made at the sacrifice of long-established and still wise procedural and substantive constitutional principle. I must respectfully dissent.
I.
39
In my view the writ should be dismissed as improvidently granted because the far-reaching constitutional question tendered is not presented by this record with sufficient clarity to require or justify its adjudication, assuming that the question is presented at all.
40
In the posture in which this case reached the state courts it required of them no more than approval of the city's resignation as trustee under Senator Bacon's will and the appointment of successor trustees. Neither of these issues of course would in itself present a federal question. While I am inclined to agree with my Brother BLACK that this is all the state courts decided, I think it must be recognized that the record is not wholly free from ambiguity on this score. Even so, the writ should be dismissed. To infer from the Georgia Supreme Court's opinion, as the majority here does, a further holding that the new trustees are entitled to operate Baconsfield on a racially restricted basis, is to stretch for a constitutional issue. This plainly contravenes the established rule that this Court will not reach constitutional questions if their decision can reasonably be avoided. Peters v. Hobby, 349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129; United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770; Charles River Bridge v. Proprietors of Warren Bridge, 11 Pet. 420, 553, 9 L.Ed. 773. Application of that doctrine is especially called for here where decision should require precise knowledge of the factual details and nuances that only time and a complete record can bring into focus. Dismissal of the writ should thus follow.
II.
41
On the merits, which I reach only because the Court has done so, I do not think that the Fourteenth Amendment permits this Court in effect to frustrate the terms of Senator Bacon's will, now that the City of Macon is no longer connected, so far as the record shows, with the administration of Baconsfield. If the majority is in doubt that such is the case, it should remand for findings on that issue and not reverse.
42
The Equal Protection Clause reaches only discriminations that are the product of capricious state action; it does not touch discriminations whose origins and effectuation arise solely out of individual predilections, prejudices, and acts. Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. So far as the Fourteenth Amendment is concerned the curtailing of private discriminatory acts, to the extent they may be forbidden at all, is a matter that is left to the States acting within the permissible range of their police power.
43
From all that now appears, this is a case of 'private discrimination.' Baconsfield had its origin not in any significant governmental action1 or on any public land but rather in the personal social philosophy of Senator Bacon and on property owned by him. The City of Macon's acceptance and, until recent years, its carrying out of the trusteeship were both entirely legitimate, and indeed in accord with the prevailing mores of the times. When continuance of its trusteeship became incompatible with later changes in constitutional doctrine, the city first undertook to disregard the racial restrictions imposed by the will on the use of the park, and then when that action was appropriately challenged, resigned as trustee. The state courts, obedient to federal commands, Com. of Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792, have accepted the resignation of the city, and, to prevent failure of the trust under their own laws, have appointed new trustees. I can see nothing in this straightforward train of events which justifies finding 'state action' of the kind necessary to bring the Fourteenth Amendment into play.
44
The first ground for the majority's state action holding rests on nothing but an assumption and a conjecture. The assumption is that the city itself maintained Baconsfield in the past. The conjecture is that it will continue to be connected with the administration of the park in the future. The only underpinning for the assumption is the circumstance that over the years Baconsfield has geographically become an adjunct to the city's park system and the admitted fact that until the present proceeding, title to it was vested in the city as trustee. The only predicate for the majority's conjecture as to the future is the failure of the record to show the contrary.
45
If speculation is the test, the record more readily supports contrary inferences. Papers before us indicate that Senator Bacon left other property in trust precisely in order to maintain Baconsfield.2 Why should it be assumed that these resources were not used in the past for that purpose, still less that the new trustees, now faced with a challenge as to their right to effectuate the terms of Senator Bacon's trust, will not keep Baconsfield privately maintained in all respects? Further, the city's and state courts' readiness to sever ties between the city and park in derogation of the will, let alone the city's earlier operation of the park on a nonsegregated basis despite the terms of the will, strongly indicates that they will not flinch from completing the separation of park and state if any ties remain to implicate the Fourteenth Amendment.
46
For me this facet of the majority's opinion affords a wholly unacceptable basis for imputing unconstitutional state action, resting as it does on pure surmise and conjecture, and implausible ones at that.3
III.
47
Quite evidently uneasy with its first ground of decision, the majority advances another which ultimately emerges as the real holding. This ground derives from what is asserted to be the 'public character' (ante, p. 302) of Baconsfield and the 'municipal * * * nature' of its services (ante, p. 301). Here it is not suggested that Baconsfield will use public property or funds, be managed by the city, enjoy an exclusive franchise, or even operate under continuing supervision of a public regulatory agency. State action is inherent in the operation of Baconsfield quite independently of any such factors, so it seems to be said, because a privately operated park whose only criterion for exclusion is racial is within the 'public domain' (ante, p. 302).
48
Except for one case which will be found to be a shaky precedent, the cases cited by the majority do not support this novel state action theory. Public Utilities Commission of District of Columbia v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068, applied due process standards, limited like equal protection standards to instances involving state action, to certain action of a private citywide transit company. State action was explicitly premised on the close legal regulation of the company by the public utilities commission and the commission's approval of the particular action under attack. The conclusion might alternatively have rested on the near-exclusive legal monopoly enjoyed by the company, 343 U.S., at 454, n. 1, 72 S.Ct. Ct. at 816, but in all events nothing was rested on any 'public function' theory. Watson v. City of Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529, ordering speedy desegregation of parks in that city, concerned recreation facilities concededly owned or managed by the city government. See 303 F.2d 863, 864 865.4 The only Fourteenth Amendment case5 finding state action in the 'public function' performed by a technically private institution is Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265, holding that a company-owned town of over 1,500 residents and effectively integrated into the surrounding area could not suppress free speech on its streets in disregard of constitutional safeguards. While no stronger case for the 'public function' theory can be imagined, the majority opinion won only five of the eight Justices participating, one of whom also concurred separately, and three spoke out in dissent. The doctrine of that case has not since been the basis of other decisions in this Court and certainly it has not been extended. On the contrary, several years after the decision this Court declined to review two New York cases which in turn held Marsh inapplicable to a privately operated residential community of apartment buildings housing 35,000 residents, Watchtower Bible & Tract Soc'y v. Metropolitan Life Ins. Co., 297 N.Y. 339, 79 N.E.2d 433, certiorari denied, 335 U.S. 886, 69 S.Ct. 232, 93 L.Ed. 425, and to a privately owned housing development of 25,000 people alleged to discriminate on racial grounds, Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512, 87 N.E.2d 541, 14 A.L.R.2d 133, certiorari denied, 339 U.S. 981, 70 S.Ct. 1019, 94 L.Ed. 1385. See also Hall v. Virginia, 335 U.S. 875, 69 S.Ct. 240, 93 L.Ed. 418, dismissing the appeal in 188 Va. 72, 49 S.E.2d 369.
49
More serious than the absence of any firm doctrinal support for this theory of state action are its potentialities for the future. Its failing as a principle of decision in the realm of Fourteenth Amendment concerns can be shown by comparing—among other examples that might be drawn from the still unfolding sweep of governmental functions—the 'public function' of privately established schools with that of privately owned parks. Like parks, the purpose schools serve is important to the public. Like parks, private control exists, but there is also a very strong tradition of public control in this field. Like parks, schools may be available to almost anyone of one race or religion but to no others. Like parks, there are normally alternatives for those shut out but there may also be inconveniences and disadvantages caused by the restriction. Like parks, the extent of school intimacy varies greatly depending on the size and character of the institution.
50
For all the resemblance, the majority assumes that its decision leaves unaffected the traditional view that the Fourteenth Amendment does not compel private schools to adapt their admission policies to its requirements, but that such matters are left to the States acting within constitutional bounds. I find it difficult, however, to avoid the conclusion that this decision opens the door to reversal of these basic constitutional concepts, and, at least in logic, jeopardizes the existence of denominationally restricted schools while making of every college entrance rejection letter a potential Fourteenth Amendment question.
51
While this process of analogy might be spun out to reach privately owned orphanages, libraries, garbage collection companies, detective agencies, and a host of other functions commonly regarded as nongovernmental though paralleling fields of governmental activity, the example of schools is, I think, sufficient to indicate the pervasive potentialities of this 'public function' theory of state action. It substitutes for the comparatively clear and concrete tests of state action a catch-phrase approach as vague and amorphous as it is far-reaching. It dispenses with the sound and careful principles of past decisions in this realm. And it carries the seeds of transferring to federal authority vast areas of concern whose regulation has wisely been left by the Constitution to the States.
1
Watson v. Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529. And see Mayor & City Council of Baltimore v. Dawson, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774 (beaches and bathhouses).
2
Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776, New Orleans City Park Improvement Assn. v. Detiege, 358 U.S. 54, 79 S.Ct. 99, 3 L.Ed.2d 46.
3
It is argued that this park was a product of Georgia's policy to allow charitable trusts of public facilities to be segregated. A Georgia statute permitted any person to grant a municipal corporation land in trust to the public use as a park on a racially segregated basis. Ga.Code Ann. § 69—504. And a companion measure authorized municipal corporations to accept such grants and to enforce the racial limitations. Id., § 69—505. This policy, it is urged, had a 'coercive effect' (Lombard v. State of Louisiana, 373 U.S. 267, 273, 83 S.Ct. 1122, 10 L.Ed.2d 338,) implicating Georgia in racial discrimination, for without that legislative pattern for segregation a testator would have had to travel an uncertain course to reach that end. Before § 69—504 was enacted in 1905, an attempt to establish a trust such as this would have faced numerous difficulties. The pre-1905 statutory law did not expressly include parks as a proper subject of charitable trusts, although it was specific in other regards. See Ga.Code § 4008 (1895). And Georgia's public parks were conceived of as 'dedicated' commons with an easement in favor of the general public. See Mayor & Council of Macon v. Franklin, 12 Ga. 239. The concept of dedication meant that the property was to benefit the public as a whole. Ford v. Harris, 95 Ga. 97, 101, 22 S.E. 144, 145; East Atlanta Land Co. v. Mower, 138 Ga. 380, 388, 75 S.E. 418, 422. It would have posed conceptual difficulties, to say the least, to dedicate land to the public as a whole, at the same time excluding the members of the Negro race. Cf. Brown v. Gunn, 75 Ga. 441, in which this point was disposed of only by finding that, on the particular facts of that case, there was no 'dedication.' We think it likely that it was the very difficulties discussed here that § 69—504 was intended to eliminate. We do not, however, reach the question whether the State facilitated, through this legislative action, the establishment of segregated parks.
4
Ala.Laws 1880—1881, pp. 395—396; Ala.Laws, 1882—1883, pp. 392—393.
1
'69—504. Gifts for public parks or pleasure grounds.—Any person may, by appropriate conveyance, devise, give, or grant to any municipal corporation of this State, in fee simple or in trust, or to other persons as trustees, lands by said conveyance dedicated in perpetuity to the public use as a park, pleasure ground, or for other public purpose, and in said conveyance, by appropriate limitations and conditions, provide that the use of said park, pleasure ground, or other property so conveyed to said municipality shall be limited to the white race only, or to white women and children only, or to the colored race only, or to colored women and children only, or to any other race, or to the women and children of any other race only, that may be designated by said devisor or grantor; and any person may also, by such conveyance, devise, give, or grant in perpetuity to such corporations or persons other property, real or personal, for the development, improvement, and maintenance of said property.
'69—505. Municipality authorized to accept.—Any municipal corporation, or other persons natural or artificial, as trustees, to whom such devise, gift, or grant is made, may accept the same in behalf of and for the benefit of the class of persons named in the conveyance, and for their exclusive use and enjoyment; with the right to the municipality or trustees to improve, embellish, and ornament the land so granted as a public park, or for other public use as herein specified, and every municipal corporation to which such conveyance shall be made shall have power, by appropriate police provision, to protect the class of persons for whose benefit the devise or grant is made, in the exclusive used (sic) and enjoyment thereof.' Ga.Code Ann. §§ 69—504 and 69—505 (1957).
2
'108—203. Subjects of charity.—The following subjects are proper matters of charity for the jurisdiction of equity:
'1. Relief of aged, impotent, diseased, or poor people.
'2. Every educational purpose.
'3. Religious instruction or worship.
'4. Construction or repair of public works, or highways, or other public conveniences.
'5. Promotion of any craft or persons engaging therein.
'6. Redemption or relief of prisoners or captives.
'7. Improvement or repair of cemeteries or tombstones.
'8. Other similar subjects, having for their object the relief of human suffering or the promotion of human civilization.' Ga.Code Ann. § 108—203 (1959).
3
This precise question had been mooted in England a few years before the 1905 Georgia enactment in the case of In re Christchurch Inclosure Act, 38 Ch.D. 520 (1888), aff'd, (1893) A.C. 1, and it appears the English rule may differ from the American rule. The Christchurch Inclosure Act gave tenants in certain cottages the right in a designated common to cut turf for fuel. In the case before the court, it was clear the act had to be given effect in some manner, but the court expressed great difficulty in giving it effect as creating a charitable trust. 'For, although the occupiers of these cottages may have been, and perhaps were, poor people, the trust is not for the poor occupiers, but for all the then and future occupiers, whether poor or not. Moreover, the trust is not for the inhabitants of a parish or district, but only for some of such persons.' Id., at 530. Nevertheless, the court felt bound to hold such a trust was charitable on the authority of a dictum by Lord Selborne in Goodman v. Mayor of Saltash, 7 App.Cas. 633, 642 (1882) (trust for a fishery for the use of all 'free inhabitants of ancient tenements' held charitable), that '(a) gift subject to a condition or trust for the benefit of the inhabitants of a parish or town, or of any particular class of such inhabitants, is (as I understand the law) a charitable trust * * *.' Lord Blackburn dissented in Goodman v. Mayor of Saltash, saying that 'though there are many cases to the effect that a trust for public purposes, not confined to the poor, may be considered charitable for many purposes, I do not know of any that say that such a trust as is now supposed would be taken out of the rule against perpetuities * * *.' Id., at 662. No doubt Lord Selborne's view of what constituted a trust for the benefit of the public generally was colored by feudal traditions and the long history of royal charters to the burghers, or 'free inhabitants' of a town (in fact, the trust in Goodman v. Mayor of Saltash was a fictional one created by supposing the prior existence of such a charter, now lost), while the American rule enunciated by Scott is in keeping with the American democratic tradition, which is turn is reflected by the Georgia cases regarding dedication of land to public use discussed by the majority, ante, at 300-301, n. 3.
4
The trust in Mills Memorial Home was specifically recognized as charitable by § 108—203(1) ('Relief of aged, impotent, diseased, or poor people'), see note 2, supra, while the trust in Bramblett would be classifiable as one to promote the happiness or well-being of members of the community at large and would thus be tested by the standard of generality stated by Professor Scott.
1
The majority disclaims reliance on the early Georgia charitable trust statutes authorizing the establishment of racially restricted parks and permitting a city to act as trustee under such a trust. My Brother WHITE, however, finds that the mere existence of those statutes, enacted in 1905, 'incurably taint(s)' the racial conditions of Senator Bacon's will (ante, p. 305). For several reasons that thesis seems to me to fall short. First, it is by no means clear that
Georgia common law would not have permitted user restrictions on such a park in trust, so that the statute was but declaratory of existing law pro tanto. See, e.g., Houston v. Mills Memorial Home, 202 Ga. 540, 43 S.E.2d 680 (permitting trust for home for Negro aged). Thus even on my Brother WHITE'S premise that a State in allowing discrimination may not discriminate among possible user restrictions, the proper course would be to remand to the Georgia courts to determine whether user-restricted trusts such as Senator Bacon's were in any event valid under the state common law. Second, in order to find an 'incurable taint' of the racial conditions rather than an arguable claim turning on state common law, it is apparently suggested that the state statutes invalidly 'removed * * * doubt only for racial restrictions' (ante, p. 306) and by this clarification improperly encouraged Senator Bacon to discriminate. There is, however, absolutely no indication whatever in the record that Senator Bacon would have acted otherwise but for the statute, a gap in reasoning that cannot be obscured by general discussion of state 'involvement' or 'infection.' Third, it could hardly be argued that the statute in question was unconstitutional when passed, in light of the then-prevailing constitutional doctrine; that being so, it is difficult to perceive how it can now be taken to have tainted Senator Bacon's will at the time he made his irrevocable choice.
2
See R. 20, 22, for provisions of Senator Bacon's will allotting property for 'the management, improvement and preservation' of the park.
3
Twice in its opinion the majority intimates it might reach a different conclusion on the city's involvement if it had a fully developed record before it. At pp. 301, ante, the Court says, 'We only hold that where the tradition of municipal control had become firmly established, we cannot take judicial notice that the mere substitution of trustees instantly transferred this park from the public to the private sector.' And in concluding at p. 302, ante, the opinion reads: 'We put the matter that way because on this record we cannot say that the transfer of title per se disentangled the park from segregation under the municipal regime that long controlled it.' These cautions seem to reinforce the point made at the outset of this dissent that the Court should have refused to adjudicate the constitutional issue on this cloudy record. See Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666.
4
The majority's language directly following its Watson citation (ante, p. 302)—'and state courts that aid private parties to perform that public function (mass recreation through the use of parks) on a segregated basis implicate the State in conduct proscribed by the Fourteenth Amendment'—quite evidently is oblique reliance on Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, which the majority does not even cite. Whatever may be the basis of that inscrutable decision, certainly nothing in it purports to rest on anything resembling the 'public function' theory.
5
In Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152, cited by the Court, none of the three prevailing opinions garnered a majority, and some commentators have simply concluded that the state action requirement was read out of the Fifteenth Amendment on that occasion. Lewis, The Meaning of State Action, 60 Col.L.Rev. 1083, 1094 (1960); Note, The Strange Career of 'State Action' Under the Fifteenth Amendment, 74 Yale L.J. 1448, 1456 1459 (1965).
| 12
|
382 U.S. 323
86 S.Ct. 467
15 L.Ed.2d 391
Louis KATCHEN, Petitioner,v.Hyman D. LANDY, Trustee in Bankruptcy, etc.
No. 28.
Argued Nov. 8, 1965.
Decided Jan. 17, 1966.
[Syllabus from pages 323-324 intentionally omitted]
Fred M. Winner, Denver, Colo., for petitioner.
George Louis Creamer, Denver, Colo., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
The disputed issue here is whether a bankruptcy court has summary jurisdiction to order the surrender of voidable preferences asserted and proved by the trustee in response to a claim filed by the creditor who received the preferences. The Court of Appeals held that the bankruptcy court had such summary jurisdiction. 336 F.2d 535. We affirm.
2
The corporate bankrupt began business on April 21, 1960, and borrowed $50,000 from two local banks. Petitioner, then an officer of the company, was an accommodation maker on the two corporate notes delivered to the banks. After the corporate bankrupt in this case suffered a disastrous fire, its funds and collections were placed in a 'trust account' under the sole control of petitioner. From this account petitioner made two payments on one of the company notes on which he was an accommodation maker and one payment on the other. Bankruptcy followed within four months of these payments. Petitioner filed two claims in the proceeding, one for rent due him from the bankrupt and one for a payment on one of the notes made from his personal funds. The trustee responded with a petition asserting that the payments from the trust fund to the banks were voidable preferences and demanding judgment for the amount of the preferences along with the amount of an unpaid stock subscription owed to the corporation by petitioner. Petitioner's objection to the summary jurisdiction of the referee was overruled, and judgment was rendered for the trustee on both the preferences and the stock subscription. Petitioner's claims were to be allowed only when and if the judgment was satisfied. The District Court sustained the referee. A divided Court of Appeals, sitting en banc, after reconsidering Inter-State National Bank of Kansas City v. Luther, 221 F.2d 382 (C.A.10th Cir. 1955), cert. dismissed under Rule 60, 350 U.S. 944, 76 S.Ct. 297, 100 L.Ed. 823, adhered to its pronouncements in that case, affirmed the judgment for the amount of the voidable preferences but reversed the judgment for the amount of the stock subscription. The trustee did not seek review here of the adverse decision on the stock subscription. We granted certiorari on the creditor's petition because of the diversity of views among the Courts of Appeals on the issue involved1 and the importance of the question in the administration of the bankruptcy laws. 380 U.S. 971, 85 S.Ct. 1328, 14 L.Ed.2d 268.
3
The crux of the dispute here concerns the mode of procedure for trying out the preference issue. The bankruptcy courts are expressly invested by statute with original jurisdiction to conduct proceedings under the Bankruptcy Act.2 These courts are essentially courts of equity, Local Loan Co. v. Hunt, 292 U.S. 234, 240, 54 S.Ct. 695, 697, 78 L.Ed. 1230; Pepper v. Litton, 308 U.S. 295, 304, 60 S.Ct. 238, 244, 84 L.Ed. 281, and they characteristically proceed in summary fashion to deal with the assets of the bankrupt they are administering. The bankruptcy courts 'have summary jurisdiction to adjudicate controversies relating to property over which they have actual or constructive possession.' Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 481, 60 S.Ct. 628, 630, 84 L.Ed. 876; Cline v. Kaplan, 323 U.S. 97, 98—99, 65 S.Ct. 155, 156, 89 L.Ed. 97; May v. Henderson, 268 U.S. 111, 115—116, 45 S.Ct. 456, 458, 69 L.Ed. 870; Taubel-Scott-Kitzmiller Co. v. Fox, 264 U.S. 426, 432—434, 44 S.Ct. 396, 398, 68 L.Ed. 770. They also deal in a summary way with 'matters of an administrative character, including questions between the bankrupt and his creditors, which are presented in the ordinary course of the administration of the bankrupt's estate.' Taylor v. Voss, 271 U.S. 176, 181, 46 S.Ct. 461, 463, 70 L.Ed. 889; U.S. Fidelity & Guaranty Co. v. Bray, 225 U.S. 205, 218, 32 S.Ct. 620, 625, 56 L.Ed. 1055. This is elementary bankruptcy law which petitioner does not dispute.
4
But petitioner points out that if a creditor who has received a preference does not file a claim in the bankruptcy proceeding and holds the property he received under a substantial adverse claim, so that the property may not be deemed within the actual or constructive possession of the bankruptcy court, the trustee may recover the preference only by a plenary action under § 60 of the Act, 11 U.S.C. § 96 (1964 ed.), see Taubel-ScottKitzmiller Co. v. Fox, 264 U.S. 426, 44 S.Ct. 396; and in a plenary action in the federal courts the creditor could demand a jury trial, Schoenthal v. Irving Trust Co., 287 U.S. 92, 94—95, 53 S.Ct. 50, 51, 77 L.Ed. 185; Adams v. Champion, 294 U.S. 231, 234, 55 S.Ct. 399, 400, 79 L.Ed. 880; compare Buffum v. Peter Barceloux Co., 289 U.S. 227, 235—236, 53 S.Ct. 539, 542, 77 L.Ed. 1140. Petitioner contends the situation is the same when the creditor files a claim and the trustee not only objects to allowance of the claim but also demands surrender of the preference. This is so, petitioner argues, because the Bankruptcy Act does not confer summary jurisdiction on a bankruptcy court to order preferences surrendered and because, if it does, petitioner's rights under the Seventh Amendment of the Constitution are violated. We agree with neither contention.
5
With respect to the statutory question, it must be conceded that the Bankruptcy Act does not in express terms confer summary jurisdiction to order claimants to surrender preferences. But Congress has often left the exact scope of summary proceedings in bankruptcy undefined, and this Court has elsewhere recognized that in the absence of congressional definition this is a matter to be determined by decisions of this Court after due consideration of the structure and purpose of the Bankruptcy Act as a whole, as well as the particular provisions of the Act brought in question. Taubel-Scott-Kitzmiller Co. v. Fox, 264 U.S. 426, 431 and n. 7, 44 S.Ct. 396, 398.
6
When Congress enacted general revisions of the bankruptcy laws in 1898 and 1938, it gave 'special attention to the subject of making (the bankruptcy laws) inexpensive in (their) administration.' H.R.Rep. No. 1228, 54th Cong., 1st Sess., p. 2; H.R.Rep. No. 1409, 75th Cong., 1st Sess., p. 2; S.Rep. No. 1916, 75th Cong., 3d Sess., p. 2. Moreover, this Court has long recognized that a chief purpose of the bankruptcy laws is 'to secure a prompt and effectual administration and settlement of the estate of all bankrupts within a limited period,' Ex parte Christy, 3 How. 292, 312, 11 L.Ed. 603, and that provision for summary disposition, 'without regard to usual modes of trial attended by some necessary delay,' is one of the means chosen by Congress to effectuate that purpose, Bailey v. Glover, 21 Wall. 342, 346, 22 L.Ed. 636. See generally Wiswall v. Campbell, 93 U.S. 347, 350—351, 23 L.Ed. 923; United States Fidelity & Guaranty Co. v. Bray, 225 U.S. 205, 218, 32 S.Ct. 620, 625.
7
It is equally clear that the expressly granted power to 'allow,' 'disallow' and 'reconsider' claims, Bankruptcy Act, § 2, sub. a(2), 11 U.S.C. § 11, sub. a(2) (1964 ed.),3 which is of 'basic importance in the administration of a bankruptcy estate,' Gardner v. State of New Jersey, 329 U.S. 565, 573, 67 S.Ct. 467, 471, 91 L.Ed. 504, is to be exercised in summary proceedings and not by the slower and more expensive processes of a plenary suit. United States Fidelity & Guaranty Co. v. Bray, 225 U.S. 205, 218, 32 S.Ct. 620, 625; Wiswall v. Campbell, 93 U.S. 347, 350—351. This power to allow or to disallow claims includes 'full power to inquire into the validity of any alleged debt or obligation of the bankrupt upon which a demand or a claim against the estate is based. This is essential to the performance of the duties imposed upon it.' Lesser v. Gray, 236 U.S. 70, 74, 35 S.Ct. 227, 228, 59 L.Ed. 471. The trustee is enjoined to examine all claims and to present his objections, Bankruptcy Act, § 47, sub. a(8), 11 U.S.C. § 75, sub. a(8) (1964 ed.),4 and '(w)hen objections are made, (the court) is duty bound to pass on them,' Gardner v. State of New Jersey, 329 U.S. 565, 573, 67 S.Ct. 467, 471. 'The whole process of proof, allowance, and distribution is, shortly speaking, an adjudication of interests claimed in a res,' id., at 574, 67 S.Ct. at 472, and thus falls within the principle quoted above that bankruptcy courts have summary jurisdiction to adjudicate controversies relating to property within their possession. Further, the Act itself directs that '(o)bjections to claims shall be heard and determined as soon as the convenience of the court and the best interests of the estates and the claimants will permit,' Bankruptcy Act, § 57, sub. f, 11 U.S.C. § 93, sub. f (1964 ed.), and a committee report indicates that the provision means that '(o)bjections shall be heard and determined in a summary way,' H.R.Rep. No. 1674, 52d Cong., 1st Sess., p. 20.
8
Section 57 of the Act contains another important congressional directive around which much of this case turns. Subsection g forbids the allowance of a claim when the creditor has 'received of acquired preferences * * * void or voidable under this title' absent a surrender of any preference. Bankruptcy Act, § 57, sub. g, 11 U.S.C. § 93, sub. g (1964 ed.).5 Unavoidably and by the very terms of the Act, when a bankruptcy trustee presents a § 57, sub. g objection to a claim, the claim can neither be allowed nor disallowed until the preference matter is adjudicated. The objection under § 57, sub. g is, like other objections, part and parcel of the allowance process and is subject to summary adjudication by a bankruptcy court. This is the plain import of § 57 and finds support in the same policy of expedition that underlies the necessity for summary action in many other proceedings under the Act.
9
There is no contrary indication in any other provision of the Act. The provisions of the Acts of 1800 and 1841 which gave the creditor the right to have his claim tried by a jury were not repeated in the Acts of 1867 and 1898.6 Section 19 of the current law, Bankruptcy Act, § 19, 11 U.S.C. § 42 (1964 ed.), requires a jury in only limited situations and is not helpful to petitioner in this case. It is true that § 60, dealing with preferences and their voidability, confers concurrent jurisdiction on state courts and the federal bankruptcy courts to entertain plenary suits for the recovery of preferences. But by its own terms this provision applies only 'where plenary proceedings are necessary' and hence itself contemplates non-plenary recovery proceedings.7
10
If anything, the other provisions of the Act support the view that § 57, sub. g objections are to be summarily determined. Section 57, sub. k provides for reconsideration of claims that have previously been allowed, and § 57, sub. 1 provides that when a claim has been reconsidered and rejected the trustee may recover any dividend previously paid on it, proceedings for such recovery to be within the summary jurisdiction of a bankruptcy court.8 Even under the predecessor to the present section, which did not expressly provide that the dividend could be summarily recovered, Bankruptcy Act of 1898, § 57, sub. 1, 30 Stat. 561, this Court held that the referee had jurisdiction to determine whether a preference has been received and to order return of the dividend. Pirie v. Chicago Title & Trust Co., 182 U.S. 438, 455—456, 21 S.Ct. 906, 913, 45 L.Ed. 1171.9 So too, proceedings under § 60, sub. d, 11 U.S.C. § 96, sub. d (1964 ed.),10 for examination of the reasonableness of amounts paid in contemplation of bankruptcy to an attorney for services to be rendered for the bankrupt are within the summary jurisdiction of the referee although the Act does not expressly so provide. In re Wood and Henderson, 210 U.S. 246, 28 S.Ct. 621, 52 L.Ed. 1046; Conrad, Rubin & Lesser v. Pender, 289 U.S. 472, 53 S.Ct. 703, 77 L.Ed. 1327.
11
So far we have been discussing principles applicable to a case where the trustee presents a § 57, sub. g objection to a claim but does not seek the affirmative relief of surrender of the preference. But once it is established that the issue of preference may be summarily adjudicated absent an affirmative demand for surrender of the preference, it can hardly be doubted that there is also summary jurisdiction to order the return of the preference. This is so because in passing on a § 57, sub. g objection a bankruptcy court must necessarily determine the amount of preference, if any, so as to ascertain whether the claimant, should he return the preference, has satisfied the condition imposed by § 57, sub. g on allowance of the claim. Schwartz v. Levine & Malin, Ins., 111 F.2d 81 (C.A.2d Cir. 1940). Thus, once a bankruptcy court has dealt with the preference issue nothing remains for adjudication in a plenary suit. The normal rules of res judicata and collateral estoppel apply to the decisions of bankruptcy courts. Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 376 377, 60 S.Ct. 317, 319—320, 84 L.Ed. 329; Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104. More specifically, a creditor who offers a proof of claim and demands its allowance is bound by what is judicially determined, Wiswall v. Campbell, 93 U.S. 347, 351; and if his claim is rejected, its validity may not be relitigated in another proceeding on the claim. Sampsell v. ImperialPaper Corp., 313 U.S. 215, 218—219, 61 S.Ct. 904, 906—907, 85 L.Ed. 1293; Lesser v. Gray, 236 U.S. 70, 75, 35 S.Ct. 227, 229, 59 L.Ed. 471. The Courts of Appeals have uniformly applied these principles to hold that a bankruptcy court's resolution of the § 57, sub. g objection is res judicata in a subsequent action by the trustee under § 60 to recover the preference. Schwartz v. Levine & Malin, Inc., 111 F.2d 81 (C.A.2d Cir. 1940); Giffin v. Vought, 175 F.2d 186 (C.A.2d Cir. 1949); Ullman, Stern & Krausse v. Coppard, 246 F. 124 (C.A.5th Cir. 1917); Breit v. Moore, 220 F. 97 (C.A.9th Cir. 1915); Johnson v. Wilson, 118 F.2d 557 (C.A.9th Cir. 1941); see In re J. R. Palmenberg Sons, 76 F.2d 935 (C.A.2d Cir. 1935), aff'd sub nom. Bronx Brass Foundry, Inc. v. Irving Trust Co., 297 U.S. 230, 56 S.Ct. 451, 80 L.Ed. 657. To require the trustee to commence a plenary action in such circumstances would be a meaningless gesture, and it is well within the equitable powers of the bankruptcy court to order return of the preference during the summary proceedings on allowance and disallowance of claims. Compare In re Wood and Henderson, 210 U.S. 246, 256, 28 S.Ct. 621, 625, 52 L.Ed. 1046 (determination of reasonableness of attorney's fee would be res judicata in suit to recover the excess), with Conrad, Rubin & Lesser v. Pender, 289 U.S. 472, 53 S.Ct. 703 (upholding turnover order). What we said in Alexander v. Hillman, 296 U.S. 222, 56 S.Ct. 204, 80 L.Ed. 192, in connection with the jurisdiction of a receivership court to entertain a counterclaim against a claimant in the receivership proceeding, is equally applicable here:
12
'By presenting their claims respondents subjected themselves to all the consequences that attach to an appearance. * * *
13
'Respondents' contention means that, while invoking the court's jurisdiction to establish their right to participate in the distribution, they may deny its power to require them to account for what they misappropriated. In behalf of creditors and stockholders, the receivers reasonably may insist that, before taking aught, respondents may by the receivership court be required to make restitution. That requirement is in harmony with the rule generally followed by courts of equity that, having jurisdiction of the parties to controversies brought before them, they will decide all matters in dispute and decree complete relief.' 296 U.S., at 241—242, 56 S.Ct., at 210—211.
14
Our examination of the structure and purpose of the Bankruptcy Act and the provisions dealing with allowance of claims therefore leads us to conclude, and we so hold, that the Act does confer summary jurisdiction to compel a claimant to surrender preferences that under § 57, sub. g would require disallowance of the claim.11 A number of Courts of Appeals, including the court below, have reached similar results.12
15
Petitioner contends, however, that this reading of the statute violates his Seventh Amendment right to a jury trial. But although petitioner might be entitled to a jury trial on the issue of preference if he presented no claim in the bankruptcy proceeding and awaited a federal plenary action by the trustee, Schoenthal v. Irving Trust Co., 287 U.S. 92, 53 S.Ct. 50, when the same issue arises as part of the process of allowance and disallowance of claims, it is triable in equity. The Bankruptcy Act, passed pursuant to the power given to Congress by Art. I, § 8, of the Constitution to establish uniform laws on the subject of bankruptcy, converts the creditor's legal claim into an equitable claim to a pro rata share of the res. Gardner v. State of New Jersey, 329 U.S. 565, 573—574, 67 S.Ct. 467, 471—472, a share which can neither be determined nor allowed until the creditor disgorges the alleged voidable preference he has already received. See Alexander v. Hillman, 296 U.S. 222, 242, 56 S.Ct. 204, 211, 80 L.Ed. 192. As bankruptcy courts have summary jurisdiction to adjudicate controversies relating to property over which they have actual or constructive possession, Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 481, 60 S.Ct. 628, 629; Cline v. Kaplan, 323 U.S. 97, 98—99, 65 S.Ct. 155, 156; May v. Henderson, 268 U.S. 111, 115—116, 45 S.Ct. 456, 458; and as the proceedings of bankruptcy courts are inherently proceedings in equity, Local Loan Co. v. Hunt, 292 U.S. 234, 240, 54 S.Ct. 695, 697; Pepper v. Litton, 308 U.S. 295, 304, 60 S.Ct. 238, 244; there is no Seventh Amendment right to a jury trial for determination of objections to claims, including § 57, sub. g objections. As this Court has previously said in answering the argument that disputed claims must be tried before a jury:
16
'But those who use this argument lose sight of the fundamental principle that the right of trial by jury, considered as an absolute right, does not extend to cases of equity jurisdiction. If it be conceded or clearly shown that a case belongs to this class, the trial of questions involved in it belongs to the court itself, no matter what may be its importance or complexity.
17
'So, in cases of bankruptcy, many incidental questions arise in the course of administering the bankrupt estate, which would ordinarily be pure cases at law, and in respect of their facts triable by jury, but, as belonging to the bankruptcy proceedings, they become cases over which the bankruptcy court, which acts as a court of equity, exercises exclusive control. Thus a claim of debt or damages against the bankrupt is investigated by chancery methods.'
18
Barton v. Barbour, 104 U.S. (14 Otto) 126, 133—134, 26 L.Ed. 672. This has been the characteristic view of the courts. Carter v. Lechty, 72 F.2d 320 (C.A.8th Cir. 1934); In re Michigan Brewing Co., 24 F.Supp. 430 (W.D.Mich.1938), aff'd, Conlon v. Michigan Brewing Co., 101 F.2d 1007 (C.A.6th Cir. 1939); In re Rude, 101 F. 805 (D.C.D.Ky.1900); In re Christensen, 101 F. 243 (D.C.N.D.Iowa 1900). See also In re Wood and Henderson, 210 U.S. 246, 258, 28 S.Ct. 621, 626; Pirie v. Chicago Title & Trust Co., 182 U.S. 438, 455—456, 21 S.Ct. 906, 913.
19
And of course it makes no difference, so far as petitioner's Seventh Amendment claim is concerned, whether the bankruptcy trustee urges only a § 57, sub. g objection or also seeks affirmative relief. In practical effect, the denial of a jury trial would be no less were the bankruptcy court merely to determine the existence and amount of the preference, since that determination would be entitled to res judicata effect in any subsequent plenary action. And we have held that equity courts have power to decree complete relief and for that purpose may accord what would otherwise be legal remedies. See Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 291—292, 80 S.Ct. 332, 334, 4 L.Ed.2d 323; Porter v. Warner Co., 328 U.S. 395, 398—399, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332; Alexander v. Hillman, 296 U.S. 222, 56 S.Ct. 204; McGowan v. Parish, 237 U.S. 285, 296, 35 S.Ct. 543, 548, 59 L.Ed. 955.
20
Petitioner's final reliance is on the doctrine of Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988, and Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44, that 'where both legal and equitable issues are presented in a single case, 'only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims." 369 U.S., at 472—473, 82 S.Ct. at 897.
21
The argument here is that the same issues—whether the creditor has received a preference and, if so, its amount—may be presented either as equitable issues in the bankruptcy court or as legal issues in a plenary suit and that the bankruptcy court should stay its own proceedings and direct the bankruptcy trustee to commence a plenary suit so as to preserve petitioner's right to a jury trial. Unquestionably the bankruptcy court would have power to give such an instruction to the trustee, Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 483—484, 60 S.Ct. 628, 630—631; see Bankruptcy Act, § 2, sub. a(7), 11 U.S.C. § 11, sub. a(7) (1964 ed.), and some lower courts have required such a procedure, B. F. Avery & Sons Co. v. Davis, 192 F.2d 255 (C.A.5th Cir. 1951), cert. denied, 342 U.S. 945, 72 S.Ct. 559; Triangle Electric Co. v. Foutch, 40 F.2d 353, (C.A.8th Cir. 1930); see Katchen v. Landy, 336 F.2d 535, 543 (C.A.10th Cir. 1964) (Phillips, J., dissenting in part). Nevertheless we think this argument must be rejected.
22
At the outset, we note that the Dairy Queen doctrine, if applicable at all, is applicable whether or not the trustee seeks affirmative relief. For, as we have said, determination of the preference issues in the equitable proceeding would in any case render unnecessary a trial in the plenary action because of the res judicata effect to which that determination would be entitled. Thus petitioner's argument would require that in every case where a § 57, sub. g objection is interposed and a jury trial is demanded the proceedings on allowance of claims must be suspended and a plenary suit initiated, with all the delay and expense that course would entail. Such a result is not consistent with the equitable purposes of the Bankruptcy Act nor with the rule of Beacon Theatres and Dairy Queen, which is itself an equitable doctrine, Beacon Theatres v. Westover, 359 U.S., at 509—510, 79 S.Ct., at 955—957. In neither Beacon Theatres nor Dairy Queen was there involved a specific statutory scheme contemplating the prompt trial of a disputed claim without the intervention of a jury. We think Congress intended the trustee's § 57, sub. g objection to be summarily determined; and to say that because the trustee could bring an independent suit against the creditor to recover his voidable preference, he is not entitled to have his statutory objection to the claim tried in the bankruptcy court in the normal manner is to dismember a scheme which Congress has prescribed. See Alexander v. Hillman, 296 U.S. 222, 243, 56 S.Ct. 204, 211. Both Beacon Theatres and Dairy Queen recognize that there might be situations in which the Court could proceed to resolve the equitable claim first even though the results might be dispositive of the issues involved in the legal claim. To implement congressional intent, we think it essential to hold that the bankruptcy court may summarily adjudicate the § 57, sub. g objection; and, as we have held above, the power to adjudicate the objection carries with it the power to order surrender of the preference.
23
Affirmed.
24
Mr. Justice BLACK and Mr. Justice DOUGLAS dissent for the reasons stated in the dissenting opinion of Judge Phillips in the Court of Appeals.
1
B. F. Avery & Sons Co. v. Davis, 192 F.2d 255 (C.A.5th Cir. 1951), cert. denied, 342 U.S. 945, 72 S.Ct. 559, 96 L.Ed. 703, held the referee did not have summary jurisdiction to entertain the trustee's demand for surrender of the preference. In Avery, the preference arose out of a different transaction than the creditor's claim, and a subsequent decision of the Fifth Circuit notes that although that fact was not the articulated basis of the Avery decision, it may not preclude summary jurisdiction to order return of a preference received in the same transaction. Gill v. Phillips, 337 F.2d 258 (1964), opinion on denial of rehearing, 340 F.2d 318 (C.A.5th Cir. 1965). The Fifth Circuit rule is thus uncertain, but Avery at least prevents summary recovery of unrelated preferences. Several Courts of Appeals have upheld the summary jurisdiction of the referee over counterclaims arising out of the same transaction as the creditor's claim but have stated that such jurisdiction does not extend to permissive counterclaims arising out of distinct transactions. See In re Solar Mfg. Corp., 200 F.2d 327 (C.A.3d Cir. 1952), cert. denied sub nom. Marine Midland Trust Co. of New York v. McGirl, 345 U.S. 940, 73 S.Ct. 831, 97 L.Ed. 1366; In re Majestic Radio & Television Corp., 227 F.2d 152 (C.A.7th Cir. 1955), cert. denied sub nom. Dwyer v. Franklin, 350 U.S. 995, 76 S.Ct. 545, 100 L.Ed. 860; Peters v. Lines, 275 F.2d 919 (C.A.9th Cir. 1960). The decision presently under review upholds summary jurisdiction to order return of a preference whether or not the preference relates to the same transaction as the claim but declines to extend such jurisdiction to unrelated counterclaims not involving a preference, set-off, voidable lien, or a fraudulent transfer. 336 F.2d, at 537.
2
Bankruptcy Act, § 2, sub. a, 11 U.S.C. § 11, sub. a (1964 ed.), provides:
'(a) The courts of the United States hereinbefore defined as courts of bankruptcy are hereby created courts of bankruptcy and are invested, within their respective territorial limits as now established or as they may be hereafter changed, with such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in proceedings under this title * * *.'
3
11 U.S.C. § 11, sub. a(2) confers power to:
'(2) Allow claims, disallow claims, reconsider allowed or disallowed claims, and allow or disallow them against bankrupt estates.'
4
11 U.S.C. § 75, sub. a(8) provides that trustees shall:
'(8) examine all proofs of claim and object to the allowance of such claims as may be improper.'
5
11 U.S.C. § 93, sub. g provides:
'(g) The claims of creditors who have received or acquired preferences, liens, conveyances, transfers, assignments or encumbrances, void or voidable under this title, shall not be allowed unless such creditors shall surrender such preferences, liens, conveyances, transfers, assignments, or encumbrances.'
The language of this section, it will be observed, is concerned with creditors rather than claims and thus contemplates that allowance of a claim may be conditioned on surrender of preferences received with respect to transactions unrelated to the claims. The exact reach of § 57, sub. g is not entirely settled, see 3 Collier on Bankruptcy, 57.19(3.2) (14th ed. 1964), and that question is not involved here.
6
The history of the early jury trial provisions is traced in In re United Button Co., 140 F. 495 (D.C.D.Del.), aff'd sub nom. Brown & Adams v. United Button Co., 149 F. 48 (C.A.3d Cir. 1906).
7
Bankruptcy Act § 60, sub. b, 11 U.S.C. § 96, sub. b (1964 ed.), provides:
'(b) Any such preference may be avoided by the trustee if the creditor receiving it or to be benefited thereby or his agent acting with reference thereto has, at the time when the transfer is made, reasonable cause to believe that the debtor is insolvent. Where the preference is voidable, the trustee may recover the property or, if it has been converted, its value from any person who has received or converted such property, except a bona-fide purchaser from or lienor of the debtor's transferee for a present fair equivalent value. * * * For the purpose of any recovery or avoidance under this section, where plenary proceedings are necessary, and State court which would have had jurisdiction if bankruptcy had not intervened and any court of bankruptcy shall have concurrent jurisdiction.'
8
Bankruptcy Act, § 57, subs. k and 1, 11 U.S.C. § 93, subs. k and l (1964 ed.), provide:
'(k) Claims which have been allowed may be reconsidered for cause and reallowed or rejected in whole or in part according to the equities of the case, before but not after the estate has been closed.
'(l) Whenever a claim shall have been reconsidered and rejected, in whole or in part, upon which a dividend has been paid, the trustee may recover from the creditor the amount of the dividend received upon the claim if rejected in whole, or the proportional part thereof if rejected only in part, and the trustee may also recover any excess dividend paid to any creditor. The court shall have summary jurisdiction of a proceeding by the trustee to recover any such dividends.'
9
Under the Act as it then stood, the preference involved in Pirie was not voidable or recoverable but nevertheless was ample ground for disallowance of the claim. But the creditor argued that compelling repayment of the dividend would constitute determination of a 'suit by the trustee' without the consent of the defendant contrary to the provisions of then § 23, sub. b (presently codified, without alterations material to the present discussion, in 11 U.S.C. § 46, sub. b (1964 ed.)) that:
'b Suits by the trustee shall only be brought or prosecuted in the courts where the bankrupt, whose estate is being administered by such trustee, might have brought or prosecuted them if proceedings in bankruptcy had not been instituted, unless by consent of the proposed defendant.' 30 Stat. 552.
That argument was rejected by the Court on the ground the proceedings under review were not a 'suit' within the meaning of the quoted provision. 182 U.S., at 455—456, 21 S.Ct., at 906. We apply that reasoning in our opinion today and hold that determination of objections to claims, whether or not affirmative relief is decreed, does not constitute adjudication of a suit by the trustee, and thus it is not necessary to ascertain whether the creditor has 'consented' to such determination within the meaning of § 23, sub. b. Rather, our decision is governed by the 'traditional bankruptcy law that he who invokes the aid of the bankruptcy court by offering a proof of claim and demanding its allowance must abide the consequences of that procedure. Wiswall v. Campbell, 93 U.S. 347, 351, 23 L.Ed. 923.' Gardner v. State of New Jersey, 329 U.S. 565, 573, 67 S.Ct. 467, 472. As this is the basis of our decision, we obviously intimate no opinion concerning whether the referee has summary jurisdiction to adjudicate a demand by the trustee for affirmative relief, all of the substantial factual and legal bases for which have not been disposed of in passing on objections to the claim.
10
11 U.S.C. § 96, sub. d provides:
'(d) If a debtor shall, directly or indirectly, in contemplation of the filing of a petition by or against him, pay money or transfer property to an attorney at law, for services rendered or to be rendered, the transaction may be examined by the court on its own motion or shall be examined by the court on petition of the trustee or any creditor and shall be held valid only to the extent of a reasonable amount to be determined by the court, and the excess may be recovered by the trustee for the benefit of the estate. * * *'
11
See note 5, supra.
12
See the decisions cited in note 1, supra, upholding summary jurisdiction to grant affirmative relief on related counterclaims that would also be defenses to the claim, particularly In re Solar Mfg. Corp., 200 F.2d 327, 331, (C.A.3d Cir. 1952), cert. denied sub nom. Marine Midland Trust Co. of New York v. McGirl, 345 U.S. 940, 73 S.Ct. 831; In re Majestic Radio & Television Corp., 227 F.2d 152, 156 (C.A.7th Cir. 1955), cert. denied sub nom. Dwyer v. Franklin, 350 U.S. 995, 76 S.Ct. 545. See also Florance v. Kresge, 93 F.2d 784 (C.A.4th Cir. 1938); Floro Realty & Inv. Co. v. Steem Electric Corp., 128 F.2d 338 (C.A.8th Cir. 1942).
| 78
|
382 U.S. 362
86 S.Ct. 522
15 L.Ed.2d 416
KOEHRING CO.v.HYDE CONSTRUCTION CO., Inc., et al.
No. 593.
Jan. 17, 1966.
Steven E. Keane, for petitioner.
Charles Clark, for respondents.
PER CURIAM.
1
On March 11, 1964, pursuant to a transfer order issued by the Court of Appeals for the Fifth Circuit, the United States District Court for the Northern District of Oklahoma entered an order temporarily restraining respondents from proceeding with trial of a case in the Mississippi state courts. When respondents, in disregard of the temporary restraining order, proceeded to trial in Mississippi, the District Court on March 14 found them in civil contempt.1 Undeterred, respondents pressed the state court action to a conclusion and obtained a judgment against petitioner on April 8. But the District Court, on September 1, enjoined respondents from seeking to enforce the Mississippi judgment, required them to compensate petitioner for reasonable expenses in connection with the contempt proceeding, reserved decision as to whether they must also reimburse petitioner for expenses relating to the Mississippi litigation, and ordered the civil suit between the parties retried—this time in Oklahoma and in federal court.
2
Respondents appealed from this decree to the Court of Appeals for the Tenth Circuit which reversed, holding that at the time the District Court had entered the original restraining order it was without jurisdiction since it had not yet received the case file from the transferor court. We are asked to review that determination. We grant the petition and reverse.
3
The District Court had assumed jurisdiction of the cause and entered its restraining order on March 11, five days before the papers in the case were transferred to it from Mississippi. It acted upon the basis of a certified copy of an order entered the previous day by the Court of Appeals for the Fifth Circuit. That order provided not only that the District Court for the Southern District of Mississippi had erred in failing to comply with an earlier appellate mandate to transfer the case, but also that 'pending the entry of the order of transfer by the District Judge and the physical filing of the record in Oklahoma, this order shall constitute a transfer to enable the parties to present the matter to the District Court of Oklahoma.'
4
Although a federal appellate court does not ordinarily itself transfer a case to another district, but remands to the District Court for that purpose,2 the extraordinary action in this case was taken as a result of extraordinary circumstances. These included the fact that the Federal District Court in Mississippi had granted a motion to dismiss despite instructions from the Fifth Circuit to transfer the cause to Oklahoma,3 and the further fact that trial of a duplicative action in the Mississippi state courts brought by respondent Hyde Construction Company was to commence, and did in fact commence, on March 11—one day after the Fifth Circuit's instanter transfer and the very day on which the Federal District Court in Oklahoma entered its order.
5
In the special circumstances of this case, we conclude that the District Court in Oklahoma had acquired jurisdiction on March 11 in accordance with the Fifth Circuit's order for instanter transfer and that the Tenth Circuit erred in vacating the District Court's orders on the stated jurisdictional ground. We do not read 28 U.S.C. § 1404(a), providing that 'a district court may transfer any civil action,' as precluding an appellate court, where unusual circumstances indicate the necessity thereof, from effecting a transfer by direct order.4
6
Accordingly, we grant the petition, reverse the judgment, and remand to the District Court for the Northern District of Oklahoma for further proceedings consistent with this opinion, reserving to the parties the right to apply to that court to have the case transferred back to the Southern District of Mississippi because of changed conditions.5
7
Reversed and remanded.
8
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.
9
I think, as shown by the record and the carefully prepared opinions of the able judges in both the Fifth and the Tenth Circuits, that the circumstances of this case are both too complex and obscure, and the issues which concern among other things the relationship between state and federal courts and the transfer of cases between federal courts are all too important to be treated in the cursory manner as they are by the Court here. This Court's reversal of the judgment below, without giving respondents any opportunity for oral argument to support the thoroughly considered opinion and holding of the Tenth Circuit, seems more extraordinary to me than what the Court's per curiam opinion refers to as the 'extraordinary circumstances' in the courts below. I dissent from that course of action taken by this Court.
1
Criminal contempt charges were also filed, but are not involved in the present petition.
2
Cf. Platt v. Minnesota Mining Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (under Rule 21(b) of the Federal Rules of Criminal Procedure).
3
The Fifth Circuit suggests that the District Court's action was the result of misunderstanding over whether an answer had been filed and hence of its duty to grant a voluntary dismissal under Rule 41(a)(1) of the Federal Rules of Civil Procedure, rather than the result of unreadiness to respect appellate instructions.
4
Drabik v. Murphy, 246 F.2d 408 (C.A.2d Cir.), is not authority for the proposition that the transferee court fails to acquire jurisdiction until papers are received from the transferor court. On the contrary, Drabik suggests that the transferor court may lose jurisdiction before that event.
5
This reservation was made in the opinion of the Fifth Circuit.
| 89
|
382 U.S. 341
86 S.Ct. 500
15 L.Ed.2d 404
UNITED STATES, Petitioner,v.Ethel Mae YAZELL.
No. 10.
Argued Oct. 13, 1965.
Decided Jan. 17, 1966.
[Syllabus from pages 341-342 intentionally omitted]
Sol. Gen. Thurgood Marshall for petitioner.
Mr. J. V. Hammett, Lampasas, Tex., for respondent.
Mr. Justice FORTAS delivered the opinion of the Court.
1
This case presents an aspect of the continuing problem of the interaction of federal and state laws in our complex federal system. Specifically, the question presented is whether, in the circumstances of this case, the Federal Government, in its zealous pursuit of the balance due on a disaster loan made by the Small Business Administration, may obtain judgment against Ethel Mae Yazell of Lampasas, Texas. At the time the loan was made, Texas law provided that a married woman could not bind her separate property unless she had first obtained a court decree removing her disability to contract.1 Mrs. Yazell had not done so. At all relevant times she was a beneficiary of the peculiar institution of coverture which is now, with some exceptions, relegated to history's legal museum.
2
The impact of the quaint doctrine of coverture upon the federal treasury is therefore of little consequence. Even the Texas law which gave rise to the difficulty was repealed in 1963.2 The amount in controversy in this extensive litigation, about $4,000, is important only to the Yazell family. But the implications of the controversy are by no means minor. Using Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838, as its base, the Government here seeks to occupy new ground in the inevitable conflict between federal interest and state law. The Government was rebuffed by the trial and appellate courts. We hold that in the circumstances of this case, the state rule governs, and, accordingly, we affirm the decision of the United States Court of Appeals for the Fifth Circuit, 334 F.2d 454.3
3
Reference in some detail to the facts of this case will illuminate the problem.4 Delbert L. Yazell operated in Lampasas, Texas, a small shop to sell children's clothing. The shop was called Yazell's Little Ages. Occasionally, his wife, Ethel Mae, assisted in the business. The business, under Texas law, was the community property of husband and wife, who, however, were barred by the coverture statute from forming a partnership. Dillard v. Smith, 146 Tex. 227, 230, 205 S.W.2d 366, 367. A disastrous flood occurred in Lampasas on May 12, 1957. The stock of Yazell's Little Ages was ruined. Its fixtures were seriously damaged.5
4
The Small Business Administration had a regional office in Dallas, Texas. As of December 31, 1963, the agency had outstanding in Texas, generally under the supervision of its Dallas regional office, 1,363 business loans and 4,172 disaster loans, aggregating more than $60,000,000.6 Upon the occurrence of the Lampasas flood, the SBA opened a Disaster Loan Office in Lampasas, under the direction of the Dallas office.7
5
On June 10, 1957, Mr. Yazell conferred with a representative of the SBA about a loan to enable him to cope with the disaster to his business. After a careful, detailed but commendably prompt investigation, the head of SBA's Disaster Loan Office wrote Mr. Yazell on June 20, 1957, that authorization for a loan of $12,000 had been received. Yazell was informed that the loan would be made upon his compliance with certain requirements. He was told that a named law firm in Lampasas had been employed by the SBA to assist him in complying with the terms of the authorization.8
6
Yazell and his wife 'doing business as' Yazell's Little Ages then signed a note in the amount of $12,000, payable to the order of SBA in Dallas at the rate of $120 per month including 3% interest. On the same day they also executed a chattel mortgage on their stock of merchandise and their store fixtures. By express reference to Article 4000 of the Revised Civil Statutes of Texas, the chattel mortgage exempted from its coverage retail sales made from the stock. The chattel mortgage was accompanied by a separate acknowledgment of Mrs. Yazell before a notary public, which was required by Texas law as a part of the institution of coverture. The notary attested, in the words of the applicable Texas statute, that 'Ethel Mae Yazell, wife of Delbert L. Yazell * * * whose name is subscribed to the (chattel mortgage) * * * having been examined by me privily and apart from her husband * * * acknowledged such instrument to be her act and deed, and declared that she had willingly signed the same * * *.' See Tex.Rev.Civ.Stat.Ann. Art. 6608. See also Art. 1300, 4618 (Supp.1964), 6605. These statutes all relate to conveyances of the marital homestead.
7
The note, chattel mortgage and accompanying documents were in due course sent to the Dallas office of SBA. Both the Lampasas law firm engaged by SBA to assist Yazell and the Acting Regional Counsel of SBA certified that 'all action has been taken deemed desirable * * * to assure the validity and legal enforceability of the Note.' Thereafter, the funds were made available to Yazell pursuant to the terms of the loan.9
8
From the foregoing, it is clear (1) that the loan to Yazell was individually negotiated in painfully particularized detail, and (2) that it was negotiated with specific reference to Texas law including the peculiar acknowledgment set forth above. None of the prior cases decided by this Court in which the federal interest has been held to override state law resembles this case in these respects; the differences are intensely material to the resolution of the issue presented.
9
Next, it seems clear (1) that the SBA was aware and is chargeable with knowledge that the contract would be subject to the Texas law of coverture; (2) that both the SBA and the Yazells entered into the contract without any thought that the defense of coverture would be unavailable to Mrs. Yazell with respect to her separate property as provided by Texas law; and (3) that, in the circumstances, the United States is seeking the unconscionable advantage of recourse to assets for which it did not bargain. These points will be briefly elaborated before we reach the ultimate issue: whether, despite all of the foregoing, some 'federal interest' requires us to give the United States this advantage.
10
It will be noted that the transaction was custom-tailored by officials of SBA located in Dallas and Lampasas, Texas, and undoubtedly familiar with Texas law. It was twice approved by Texas counsel who certified that 'all action has been taken deemed desirable' even though no effort was made to cause Mrs. Yazell to have her incapacity removed under Texas law.10 In at least two decisions since 1949, federal courts had applied the Texas law of coverture in actions under federal statutes.11 At no time does it appear that the SBA made the slightest suggestion to the Yazells or their SBA-appointed counsel that it intended to enforce the contract against Mrs. Yazell's separate property.12 The forms used, although specifically adapted to this transaction and to Texas law, made no reference to such an intent, and it is either probable or certain that no such intent existed. As stated above, the SBA now has more than 5,000 loans outstanding in Texas.13 The Solicitor General informed the Court that the SBA, in conformity with the general practice of government lending agencies, requires that the signature of the wife be obtained as a routine matter.14 If it had been intended that the result now sought by the Government would obtain, simple fairness as well as elementary craftsmanship would have dictated that in a Texas agreement the wife be advised, at least by formal notation, that she was, in the opinion of SBA, binding her separate property, despite Texas law to the contrary. Again, it must be emphasized that this was a custom-made, handtailored, specifically negotiated transaction. It was not a nationwide act of the Federal Government, emanating in a single form from a single source.15
11
We now come to the basic issue which this case presents to this Court. Is there a 'federal interest' in collecting the deficiency from Mrs. Yazell's separate property which warrants overriding the Texas law of coverture? Undeniably there is always a federal interest to collect moneys which the Government lends. In this case, the federal interest is to put the Federal Government in position to levy execution against Mrs. Yazell's separate property, if she has any, for the unpaid balance of the $12,000 disaster loan after the stock of merchandise and fixtures of the store have been sold, after any other community property has been sold, and after Mr. Yazell's leviable assets have been exhausted. The desire of the Federal Government to collect on its loans is understandable. Perhaps even in the case of a disaster loan, the zeal of its representatives may be commended. But this serves merely to present the question—not to answer it. Every creditor has the same interest in this respect; every creditor wants to collect.16 The United States, as sovereign, has certain preferences and priorities,17 but neither Congress nor this Court has ever asserted that they are absolute. For example, no contention will or can be made that the United States may by judicial fiat collect its loan with total disregard of state laws such as homestead exemptions.18 Accordingly, generalities as to the paramountcy of the federal interest do not lead inevitably to the result the Government seeks. Our problem remains: whether in connection with an individualized, negotiated contract, the Federal Government may obtain a preferred right which is not provided by statute or specific agency regulation, which was not a part of its bargain, and which requires overriding a state law dealing with the intensely local interests of family property and the protection (whether or not it is up-to-date or even welcome) of married women.
12
The Government asserts that this overriding federal interest can be found in the unlimited right of the Federal Government to choose the persons with whom it will contract, citing Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108, which is remote from the issue at hand.19 Realistically, in terms of Yazell's case, this has nothing to do with our problem: The loan was made to enable Yazell to reopen the store after the disaster of the flood. The SBA chose its contractors with knowledge of the limited office of Mrs. Yazell's signature under Texas law. That knowledge did not deter them. If they had 'chosen' Mrs. Yazell as their contractor in the sense that her separate property would be liable for the loan, presumably they would have said so, and they would have proceeded with the formalities necessary under Texas law to have her disability removed.20 In all reality, the assertion that this case involves the right of the United States to choose its beneficiaries cannot determine the issue before us.21 This case is not a call to strike the shackles of an obsolete law from the hands of a beneficent Federal Government, nor is it a summons to do battle to vindicate the rights of women. It is much more mundane and commercial than either of these. The issue is whether the Federal Government may voluntarily and deliberately make a negotiated contract with knowledge of the limited capacity and liability of the persons with whom it contracts, and thereafter insist, in disregard of such limitation, upon collecting (a) despite state law to the contrary relating to family property rights and liabilities, and (b) in the absence of federal statute, regulation or even any contract provision indicating that the state law would be disregarded.
13
The institution of coverture is peculiar and obsolete. It was repealed in Texas after the events of this case. It exists, in modified form, in Michigan.22 But the Government's brief tells us that there are 10 other States which limit in some degree the capacity of married women to contract.23 In some of these States, such as California, the limitations upon the wife's capacity and responsibility are part of an ingenious, complex, and highly purposeful distribution of property rights between husband and wife, geared to the institution of community property and designed to strike a balance between efficient management of joint property and protection of the separate property of each spouse.24 It is an appropriate inference from the Government's brief that its position is that the Federal Government, in order to collect on a negotiated debt, may override all such state arrangements despite the absence of congressional enactment or agency regulation or even any stipulation in the negotiated contract or any warning to the persons with whom it contracts.25
14
We do not here consider the question of the constitutional power of the Congress to override state law in these circumstances by direct legislation26 or by appropriate authorization to an administrative agency coupled with suitable implementing action by the agency.27 We decide only that this Court, in the absence of specific congressional action, should not decree in this situation that implementation of federal interests requires overiding the particular state rule involved here. Both theory and the precedents of this Court teach us solicitude for state interests, particularly in the field of family and family-property arrangements. They should be overridden by the federal courts only where clear and substantial interests of the National Government, which cannot be served consistently with respect for such state interests, will suffer major damage if the state law is applied.
15
Each State has its complex of family and family-property arrangements. There is presented in this case no reason for breaching them. We have no federal law relating to the protection of the separate property of married women. We should not here invent one and impose it upon the States, despite our personal distaste for coverture provisions such as those involved in this case. Nor should we establish a principle which might cast doubt upon the effectiveness in relevant types of federal suits of the laws of 11 other States relating to the contractual positions of married women, which, as the Government's brief warns us, would be affected by our decision in the present case. Clearly, in the case of these SBA loans there is no 'federal interest' which justifies invading the peculiarly local jurisdiction of these States, in disregard of their laws, and of the subtleties reflected by the differences in the laws of the various States which generally reflect important and carefully evolved state arrangements designed to serve multiple purposes.
16
The decisions of this Court do not compel or embrace the result sought by the Government. None of the cases in which this Court has devised and applied a federal principle of law superseding state law involved an issue arising from an individually negotiated contract. None of these cases permitted federal imposition and enforcement of liability on a person who, according to state law, was not competent to contract. None of these cases overrode state law in the peculiarly state province of family or family-property arrangements.28
17
This Court's decisions applying 'federal law' to supersede state law typically relate to programs and actions which by their nature are and must be uniform in character throughout the Nation. The leading case, Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838, involved the remedial rights of the United States with respect to federal commercial paper. United States v. Allegheny County, 322 U.S. 174, 64 S.Ct. 908, 88 L.Ed. 1209, was treated by the Court as involving the liability of property of the United States to local taxes.29 D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956, involved the rights of the FDIC as an insurer-assignee of a bank as against the maker of a note given the bank on the secret understanding it would not be called for payment. The bank deposit insurance program is general and standardized. In all relevant aspects, the terms are explicitly dictated by federal law.30 The Court held that FDIC was entitled to a federal rule protecting it against misrepresentations as to the financial condition of the banks it insures, accomplished by secret arrangements inconsistent with the policy of the applicable federal statutes.
18
On the other hand, in the type of case most closely resembling the present problem, state law has invariably been observed. The leading case is Fink v. O'Neil,106 U.S. 272, 1 S.Ct. 325, 27 L.Ed. 196. There the United States sought to levy execution against property defined by state law as homestead and exempted by the State from execution. This Court held that Revised Statutes § 916, now Rule 69 of the Federal Rules of Civil Procedure, governed, and that the United States' remedies on judgments were limited to those generally provided by state law.31 These homestead exemptions vary widely. They result in a diversity of rules in the various States and in a limitation upon the power of the Federal Government to collect which is comparable to the coverture limitation.32 The purpose and theory of the two types of limitations are obviously related.33 Another illustration of acceptance of divergent and limiting state laws is afforded by Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 66 S.Ct. 992, 90 L.Ed. 1172. In that case this Court held that the state classification of property owned by the Reconstruction Finance Corporation as 'real property' for tax purposes would prevail in determining whether the property was within the class of property as to which Congress had waived the federal exemption from local taxation.
19
Generally, in the cases applying state law to limit or condition the enforcement of a federal right, the Court has insisted that the state law is being 'adopted' as the federal rule. Even so, it has carefully pointed out that this theory would make it possible to 'adopt,' as the operative 'federal' law, differing laws in the different States, depending upon the State where the relevant transaction takes place.34
20
Although it is unnecessary to decide in the present case whether the Texas law of coverture should apply ex proprio vigore on the theory that the contract here was made pursuant and subject to this provision of state law—or by 'adoption' as a federal principle, it is clear that the state rule should govern. There is here no need for uniformity. There is no problem in complying with state law; in fact, SBA transactions in each State are specifically and in great detail adapted to state law.35 There is in this case no defensible reason to override state law unless, despite the contrary indications in Fink v. O'Neil and elsewhere as has been set forth, we are to take the position that the Federal Government is entitled to collect regardless of the limits of its contract and regardless of any state laws, however local and peculiarly domestic they may be.
21
The decision below is affirmed.
22
Affirmed.
23
Mr. Justice HARLAN, concurring.
24
I join the Court's opinion with a single qualification, namely, that I place no reliance on any of the particularities of the negotiations between the parties respecting this loan. In my view the conclusion that Texas law governs the issue before us is amply justified by the Court's appraisal of the competing state and federal interests at stake, irrespective of whether the parties negotiated with specific reference to Texas law.
25
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS and Mr. Justice WHITE join, dissenting.
26
Because I think the dissenting opinion of Judge Prettyman in the Court of Appeals gives a more accurate picture of the relevant facts and issues in this case than does the opinion of the Court, and because I agree with the legal conclusion Judge Prettyman reached for the reasons he gave, I set out his dissent below and adopt it as my own.
27
'Mrs. Yazell and her husband, trading as a partnership, borrowed money from the Federal Government through the Small Business Administration. They signed a note for the loan. They also signed, as security for the loan, a chattel mortgage on the merchandise in their store. They could not pay, and the Government foreclosed on the security. A deficiency remained. The Government sued on the note, praying judgment for the balance of the loan. Mrs. Yazell moved for summary judgment on the ground that she is a married woman and so, in Texas, no personal judgment and no judgment affecting her separate estate can be rendered against her, with a few exceptions not here material. The District Court judge agreed with her, and so do my brethren on this court. I am contrari-minded.
28
'A loan from the Federal Government is a federal matter and should be governed by federal law. There being no federal statute on the subject, the courts must fashion a rule. This is the clear holding of Clearfield Trust Co. v. United States.1
29
'To effectuate the policy of the Small Business Act, loans of many hundreds of thousands of dollars each year to businesses must be made throughout the country. These loans can be made only under conditions which will reasonably assure repayment.2 I think the Act should
30
be of uniform application throughout the country. If local rules are to govern federal contracts in respect to the capacity of married women to contract, so too should local rules as to all other features of contractual capacity govern such contracts. Chaos which would nullify federal programs for disaster relief would arise. And of course there is no reason to restrict this decision to loans under the Small Business Act. It would necessarily apply with equal force to every other federal program which involves contracts between the Federal Government and individuals. A multitude of programs will be frustrated by it.
31
'It seems to me that, if a person has capacity to get money from the Federal Government, he has the capacity to give it back. The present lawsuit does not involve a general liability for debt; it involves merely the obligation to repay to the Government specific money borrowed from the Government. It seems to me that if a person borrows a horse from a neighbor he ought to be required to give it back if the owner wants it back, whether or not the borrower is a married woman. I suppose the Texas law, by nullifying repayments by married women, tends to minimize ill-advised borrowing. But I think the federal rule ought to be that you must repay what you borrow.
32
'It seems to me that United States v. Helz3 was correctly decided Though I think that Judge Prettyman's dissent is enough to justify his rejection of the Texas law of 'coverture' as a part of federal law, I consider it appropriate to add another reason, which in itself would be enough for me. The Texas law of 'coverture,' which was adopted by its judges and which the State's legislature has now largely abandoned, rests on the old common-law fiction that the husband and wife are one. This rule has worked out in reality to mean that though the husband and wife are one, the one is the husband. This fiction rested on what I had supposed is today a completely discredited notion that a married woman, being a female, is without capacity to make her own contracts and do her own business. I say 'discredited' reflecting on the vast number of women in the United States engaging in the professions of law, medicine, teaching, and so forth, as well as those engaged in plain old business ventures as Mrs. Yazell was. It seems at least unique to me that this Court in 1966 should exalt this archaic remnant of a primitive caste system to an honored place among the laws of the United States.
1
Tex.Rev.Civ.Stat.Ann. Art. 4626. This section, as amended by Acts 1963, 58th Leg., p. 1188, c. 472, § 6, now gives to Texas wives the capacity to contract. Under old Art. 4626 a married woman could have her disability removed.
2
See note 1, supra.
3
The Court of Appeals by a vote of two to one affirmed the decision of the District Court in favor of the wife, based upon the Texas law of coverture. The action was instituted by the United States to recover the balance due on a note of approximately $12,000, secured by a chattel mortgage. The note was signed by both husband and wife. The mortgage had been foreclosed, the pledged assets sold, and a deficiency judgment was rendered against the husband in this same action. No appeal was taken by the husband.
4
In the discussion which follows, as specifically indicated by reference to 'SBA file,' we have occasionally referred to the official file of the Small Business Administration on the Yazell loan to supplement the record with facts which disclose the agency's practice.
5
SBA file.
6
Brief of the United States, p. 12.
7
SBA file.
8
SBA file.
9
SBA file.
10
See note 1, supra.
11
United States v. Belt, 88 F.Supp. 510 (D.C.S.D.Tex.) (suit held barred by coverture); Texas Water Supply Corp. v. Reconstruction Finance Corp., 204 F.2d 190 (C.A.5th Cir.) (case held within an exception to coverture).
12
SBA file.
13
The Ninth Circuit, in Bumb v. United States, 276 F.2d 729 (C.A.9th Cir.), aptly observed in response to a claim by the Small Business Administration that the 'need for uniformity' excused it from complying with a California 'bulk sales' statute requiring notice of intent to mortgage:
'It is true that the Small Business Administration operates throughout the United States, but such fact raises no presumption of the desirability of a uniform federal rule with respect to the validity of chattel mortgages in pursuance of the lending program of the Small Business Administration. The largeness of the business of the Small Business Administration offers no excuse for failure to comply with reasonable requirements of local law, which are designed to protect local creditors against undisclosed action by their local debtors which impair the value of their claims. It must be assumed that the Small Business Administration maintains competent personnel familiar with the laws of the various states in which it conducts business, and who are advised of the steps required by local law in order to acquire a valid security interest within the various states.' Id., at 738.
14
Brief for the United States, p. 11.
15
Contrast Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838. Compare also United States v. Helz, 314 F.2d 301 (C.A.6th Cir.), arising under the National Housing Act, 48 Stat. 1246, 12 U.S.C. § 1702 et seq., which issues separate forms for each State but does not negotiate with individual applicants. See United States v. View Crest Garden Apts., Inc., 268 F.2d 380 (C.A.9th Cir.), cert. denied, 361 U.S. 884, 80 S.Ct. 156, 4 L.Ed.2d 120.
16
In this case, the Yazells' general creditors collected about 20% of their claims.
17
For example, Congress has provided for preference in the case of debts owed the United States on tax delinquencies. See 26 U.S.C. §§ 6321, 6323 (1964 ed.); 11 U.S.C. § 104(a)(4) (1964 ed.). 31 U.S.C. § 191 (1964 ed.) also provides a priority for the United States in some situations involving ordinary debts. See Kennedy. The Relative Priority of the Federal Government: The Pernicious Career of the Inchoate and General Lien, 63 Yale L.J. 905 (1954).
18
See pp. 354—356, infra.
19
The Government relies upon Perkins, at p. 127, 60 S.Ct. at p. 876, for the proposition that the United States has 'the unrestricted power * * * to determine those with whom it will deal.' Brief for the United States, p. 9. Perkins had nothing to do with the question of the power of the United States to override state law declaring the incapacity of persons to contract. The Court there held that private companies alleging their right as potential bidders for government contracts lacked standing to challenge a federal statute requiring federal procurement contracts to include a minimum wage stipulation. The Government quotes the decision out of context, omitting the following italicized words: the Court stated that 'Like private individuals and businesses, the Government enjoys the unrestricted power * * * to determine those with whom it will deal, and to fix the terms and conditions upon which it will make needed purchases.' Mrs. Yazell would subscribe to that proposition—indeed, the brunt of her case is that the Government, in entering ordinary commercial contracts, should be treated 'like private individuals and businesses.'
20
See note 1, supra.
21
It is worth noting that in the only situation where the United States' power to choose its contractors might arise—where a married woman has separate property in respect of which she seeks or the Government offers a loan—the Texas law expressly provided for her power to contract and to bind her separate property. Tex.Rev.Civ.Stat.Ann. Art. 4614.
22
Mich.Stat.Ann. §§ 26.161, 26.181, 26.182, 26.183. See Koengeter v. Holzbaugh, 332 Mich. 280, 50 N.W.2d 778; Weingarten, Creditors' Rights, 10 Wayne L.Rev. 184 (1963).
23
Brief for the United States, p. 15, n. 10. The States are, in addition to Texas and Michigan: Alabama, Arizona, California, Florida, Georgia, Idaho, Indiana, Kentucky, Nevada, and North Carolina. With the exception of Michigan, see n. 22, supra, none of these States other than Texas has a coverture rule applicable to facts such as those presented by this case.
24
In California a wife has full capacity to contract. Cal.Civ.Code § 158. Her separate property is liable for her own debts, as are her earnings. Cal.Civ.Code §§ 167, 171. However, in connection with California's community property law governing the management and control of community property, see Cal.Civ.Code (Supp.1964) §§ 172, 172a, the community property is generally not subject to the debts of the wife. Cal.Civ.Code § 167. See also Ariz.Rev.Stat.Ann. § 25—214; Nev.Rev.Stat. § 123.230.
25
The Government's argument, if accepted by this Court, would cast doubt, in addition, on state laws preventing wives from conveying realty without the consent of their husbands—see, e.g., Ala.Code Tit. 34, § 73; Fla.Stat.Ann. (Supp. 1964) § 708.08; Ind.Ann.Stat. § 38—102; Ky.Rev.Stat. § 404.020 (executory sales contract); N.C.Gen.Stat. § 52—2—or from acting as guarantors or sureties—see, e.g., Ga.Code Ann. § 53—503; Ky.Rev.Stat. § 404.010.
26
See, e.g., United States v. Bess, 357 U.S. 51, 78 S.Ct. 1054, 2 L.Ed.2d 1135, which held that the exemptions from execution to satisfy federal tax liens provided in § 3691 of the Internal Revenue Code of 1939 (now 26 U.S.C. § 6334) are exclusive of state exemptions.
27
See, e.g., United States v. Shimer, 367 U.S. 374, 81 S.Ct. 1554, 6 L.Ed.2d 908 (Pennsylvania rule precluding mortgagee who buys mortgaged property at foreclosure from seeking deficiency judgment held inconsistent with scheme of Veterans Administration regulations under which mortgage issued).
28
On the contrary, in De Sylva v. Ballentine, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415, the Court applied state law to define 'children' although the issue arose in connection with the right to renew a copyright—a peculiarly federal area. Cf. Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 66 S.Ct. 992, 90 L.Ed. 1172; Commissioner v. Stern, 357 U.S. 39, 78 S.Ct. 1047, 2 L.Ed.2d 1126. We do not regard Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424, as an exception. There California sought to apply its community property rule that a wife has a half interest in her husband's life insurance if the premiums come out of community property (his earnings), in derogation of the federal statutory policy that soldiers have an absolute right to name the beneficiary of their National Service Life Insurance. The Court held that the California rule would directly have undercut congressional intent with respect to the Federal Government's generalized, nationwide insurance program.
29
The Court held that a state tax rule under which movable machinery was part of the realty of a manufacturer for purposes of an ad valorem property tax could not be applied so as to subject a manufacturer renting the machinery from the United States to such an enhancement of the value of its realty. The Court held that the title to the machinery was in the United States, and was effective to protect the machinery from local taxes. But compare Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 66 S.Ct. 992, 90 L.Ed. 1172.
30
The statute involved in D'Oench, Duhme is now the Federal Deposit Insurance Act, 64 Stat. 873, 12 U.S.C. § 1811 et seq. (1964 ed.).
31
See also Custer v. McCutcheon, 283 U.S. 514, 51 S.Ct. 530, 75 L.Ed. 1239. Rule 69 provides that procedure on execution shall be 'in accordance with the practice and procedure of the state in which the district court is held * * * except that any statute of the United States governs to the extent that it is applicable.' With the one exception of federal tax cases, see n. 26, supra, state execution procedure seems to be applied without question, even in suits by the United States. See, e.g., United States v. Harpootlian, 24 F.2d 646 (C.A.2d Cir.) (applying state law on the time within which examination can be had of a judgment debtor after an execution against him is returned unsatisfied, over an objection by the Government that this was an improper application of a statute of limitations to the sovereign); United States v. Miller, 229 F.2d 839 (C.A.3d Cir.) (Pennsylvania prohibition of garnishment of future debts of garnishee to debtor).
32
In Texas, the value of the homestead that is exempt from execution is $5,000, as of the time of its designation as a homestead and without reference to the value of any improvements, Tex.Rev.Civ.Stat.Ann. Art. 3833; Tex.Const., Art. 16, §§ 50, 51. In Tennessee and Maine, the homestead exemption is $1,000, Tenn.Const., Art. 11, § 11; Me.Rev.Stat.Ann. Tit. 14, §§ 4551, 4552; in California, it is $15,000 for the head of a family, $7,500 for all others, Cal.Civ.Code §§ 1240, 1260 (Supp.1964); cf. Cal.Const., Art. 17, § 1. If Mrs. Yazell's separate property were a homestead under Texas law, she might have been able to defeat execution on the judgment that might have been entered against her in this suit to a far greater degree than some other debtor to the SBA could who happened to reside in Tennessee or Maine; and a Californian would do even better than Mrs. Yazell.
Other exemptions from execution vary similarly. For example, Texas, Maine and California provide for detailed personal exemptions. In Texas, a family is exempt not only as to its homestead, but also its furniture, cemetery lot, implements of husbandry, tools and books of a trade, family library and pictures, five cows and their calves, two mules, two horses, one wagon, one carriage, one gun, 20 hogs, 20 sheep, harness, provisions and forage for home consumption, current wages, clothing, 20 goats, 50 chickens, 30 turkeys, 30 ducks, 30 geese, 30 guineas, and one dog. A somewhat less extensive list is provided for persons who are not constituents of a family. Tex.Rev.Stat.Ann. Arts. 3832, 3835. Cf. also Me.Rev.Stat.Ann. Tit. 14, § 4401; Cal.Civ.Proc.Code §§ 690—690.52 (1955 ed. and Supp.1964). Texas also has other special protections, including a provision applicable to ferrymen, saving to them their ferryboat and tackle, Tex.Rev.Civ.Stat.Ann. Art. 3836.
33
Rule 64, adopting state provisional remedies for security in advance of judgment, can lead to the same kind of diversity as does Rule 69. Cf. DeBeers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 65 S.Ct. 1130, 89 L.Ed. 1566. State provisional remedies vary greatly. See 7 Moore's Fed.Prac. 64.04(3).
34
'In our choice of the applicable federal rule we have occasionally selected state law.' Clearfield Trust Co. v. United States, 318 U.S. 363, 367, 63 S.Ct. 573, 575. The Court observed in Clearfield that the difficulty of determining which state rule to apply could be a persuasive argument in favor of a federal rule. Ibid. No such difficulty exists here, of course.
In Royal Indemnity Co. v. United States, 313 U.S. 289, 61 S.Ct. 995, 85 L.Ed. 1361, cited by the Government for the proposition that 'the rights of the United States under contracts entered into as part of an authorized nationwide program are to be determined by federal and not by State law,' Brief for the United States, p. 7, the Court, while insisting that 'the rule governing the interest to be recovered as damages for delayed payment of a contractual obligation to the United States is not controlled by state statute or local common law,' 313 U.S., at 296, 61 S.Ct., at 997, nonetheless held that the statutory rate prevailing in the State where the obligation was undertaken and to be performed was a suitable one for adoption by the federal courts. Cf. also Board of Commissioners of Jackson County v. United States, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313.
35
The Financial Assistance Manual of the Small Business Administration, SBA—500, is replete with admonitions to follow state law carefully. Thus § 401.03 reads:
'Compliance with Applicable Laws. When the United States disburses its funds, it is exercising a constitutional function or power and its rights and duties are governed by Federal rather than local law. However, it is frequently necessary, in the obtaining of a marketable title or enforceable security interest in property, to follow local procedural requirements and statutes. Accordingly, care should be used in following or meeting all applicable requirements and statutes of the State in which the property is located, including the filing and refiling, recording and re-recording of any documents.'
See also, e.g., §§ 401.06, 402.04, 403.03, 404.01, 404.02, 406.02, 407.03, 407.04 ('State laws vary as to the dominion a lender must exercise over assigned accounts receivable. * * * In drafting servicing provisions * * * counsel should carefully consider the applicable laws of the State * * *.'), 408.01, 410.08 ('In order to guard against this Agency's liability for payment of insurance premiums under the standard mortgagee clause in any state the law of which * * * makes the mortgagee so liable, the regional director shall * * *.'), 706.01. Section 1008.03 authorizes a Regional Director of SBA, 'In instances where a disaster area is distantly located from the Regional office and where speed and economy of administration make such procedure advisable,' to recommend to the General Counsel that 'local counsel be appointed and that he be authorized to rely on such counsel for all legal matters and closing opinions.' See, in addition, 13 CFR (1965 Supp.) § 122.17.
1
' 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943).
2
' 15 U.S.C. § 636(a)(7); 13 C.F.R. § 120.4-2(c) (1958).
3
'314 F.2d 301 (1963). by the Sixth Circuit and that it applies here. I would follow it.' 334 F.2d 454, 456.
| 910
|
382 U.S. 375
86 S.Ct. 511
15 L.Ed.2d 428
Gerald SEGAL, Individually and d/b/a Segal Cotton Products, et al., Petitioners,v.William J. ROCHELLE, Jr., Trustee.
No. 44.
Argued Nov. 17, 1965.
Decided Jan. 18, 1966.
Henry Klepak, Dallas, Tex., for petitioners.
William J. Rochelle, Jr., Dallas, Tex., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This case, presenting a difficult question of bankruptcy law on which the circuits have differed, arises out of the following facts. On September 27, 1961, voluntary bankruptcy petitions were filed in a federal court in Texas by Gerald Segal, Sam Segal, and their business partnership, Segal Cotton Products. A single trustee, Rochelle, was designated to serve in all three proceedings. After the close of that calendar year, loss-carryback tax refunds were sought and obtained from the United States on behalf of Gerald and Sam Segal under Internal Revenue Code § 172. The losses underlying the refunds had been suffered by the partnership during 1961 prior to the filing of the bankruptcy petitions; the losses were carried back to the years 1959 and 1960 to offset net income on which the Segals had both paid taxes. By agreement, Rochelle deposited the refunds in a special account, and the Segals applied to the referee in bankruptcy to award the refunds to them on the ground that bankruptcy had not passed the refund claims to the trustee.
2
Concluding that the refund claims had indeed passed under § 70a(5) of the Bankruptcy Act1 as 'property * * * which prior to the filing of the petition * * * (the bankrupt) could by any means have transferred,' the referee denied the Segals' application. The District Court affirmed the denial, and the Segals and their partnership appealed to the Court of Appeals for the Fifth Circuit.2 That court too rejected the Segals' contention.
3
As the Court of Appeals here recognized, the Court of Appeals for the First Circuit in Fournier v. Rosenblum, 318 F.2d 525, and the Court of Appeals for the Third Circuit in In re Sussman, 289 F.2d 76, have both ruled squarely that a bankrupt's loss-carryback refund claims based on losses in the year of bankruptcy do not pass to the trustee but instead the bankrupt is entitled to the refunds when they are ultimately paid. Concededly, under § 70a(5) the trustee must acquire the bankrupt's 'property' as of the date the petition is filed and property subsequently acquired belongs to the bankrupt. See note 1, supra; 4 Collier, Bankruptcy 70.09 (14th ed. 1962). Since the tax laws allow a loss-carryback refund claim to be made only when the year has closed, see I.R.C. §§ 172(a), (c), 6411, both the First and Third Circuits reasoned that prior to the year's end a loss-carryback refund claim was too tenuous to be classed as 'property' which would pass under § 70a(5). Alternatively, the Third Circuit stated that because of the federal anti-assignment statute,3 inchoate refund claims were not in any event property 'which prior to the filing of the petition * * * (the bankrupt) could by any means have transferred,' as § 70a(5) also requires. Both circuits felt the result to be unfortunate, not least because the very losses generating the refunds often help precipitate the bankruptcy and injury to the creditors, but both believed the statutory language left no option.
4
After detailed discussion of the problems, the Court of Appeals in this case resolved that the loss-carryback refund claims were both 'property' and 'transferable' at the time of the bankruptcy petition and hence had passed to the trustee. 336 F.2d 298. We granted certiorari because of the conflict and the significance of the issue in bankruptcy administration.4 380 U.S. 931, 85 S.Ct. 939, 13 L.Ed.2d 819. Conceding the question to be close, we are persuaded by the reasoning of the Fifth Circuit and we affirm its decision.
I.
5
We turn first to the question whether on the date the bankruptcy petitions were filed, the potential claims for loss-carryback refunds constituted 'property' as § 70a(5) employs that term. Admittedly, in interpreting this section '(i)t is impossible to give any categorical definition to the word 'property,' nor can we attach to it in certain relations the limitations which would be attached to it in others.' Fisher v. Cushman, 1 Cir., 103 F. 860, 864, 51 L.R.A. 292. Whether an item is classed as 'property' by the Fifth Amendment's Just-Compensation Clause or for purposes of a state taxing statute cannot decide hard cases under the Bankruptcy Act, whose own purposes must ultimately govern.
6
The main thrust of § 70a(5) is to secure for creditors everything of value the bankrupt may possess in alienable or leviable form when he files his petition. To this end the term 'property' has been construed most generously and an interest is not outside its reach because it is novel or contingent or because enjoyment must be postponed. E.g., Horton v. Moore, 6 Cir., 110 F.2d 189 (contingent, postponed interest in a trust); Kleinschmidt v. Schroeter, 9 Cir., 94 F.2d 707 (limited interest in future profits of a joint venture); see 3 Remington, Bankruptcy §§ 1177 1269 (Henderson ed. 1957). However, limitations on the term do grow out of other purposes of the Act; one purpose which is highly prominent and is relevant in this case is to leave the bankrupt free after the date of his petition to accumulate new wealth in the future. Accordingly, future wages of the bankrupt do not constitute 'property' at the time of bankruptcy nor, analogously, does an intended bequest to him or a promised gift—even though state law might permit all of these to be alienated in advance. E.g., In re Coleman, 87 F.2d 753; see 4 Collier, Bankruptcy 70.09, 70.27 (14th ed. 1962). Turning to the loss-carryback refund claim in this case, we believe it is sufficiently rooted in the pre-bankruptcy past and so little entangled with the bankrupts' ability to make an unencumbered fresh start that it should be regarded as 'property' under § 70a(5).
7
Temporally, two key elements pointing toward realization of a refund existed at the time these bankruptcy petitions were filed: taxes had been paid on net income within the past three years, and the year of bankruptcy at that point exhibited a net operating loss. The Segals stress in this Court that under the statutory scheme no refund could be claimed from the Government until the end of the year, but as cases already cited indicate, postponed enjoyment does not disqualify an interest as 'property.' That earnings by the bankrupt after filing the petition might diminish or eliminate the loss-carryback refund claim does further qualify the interest, but we have already noted that contingency in the abstract is no bar and the actual risk that the refund claims may be erased is quite far from a certainty.5 Unlike a pre-bankruptcy promise of a gift or bequest, passing title to the trustee does not make it unlikely the gift or bequest will be effected. Nor does passing the claim hinder the bankrupt from starting out on a clean slate, for any administrative inconvenience to the bankrupt will not be prolonged, see 110 U.Pa.L.Rev., at 279—280, and the bankrupt without a refund claim to preserve has more reason to earn income rather than less.
8
We are told that if this loss-carryback refund claim is 'property,' that label must also attach to loss-carryovers, that is, the application of pre-bankruptcy losses to earnings in future years. Since losses may be carried forward five years and in some cases even seven or ten years, I.R.C. §§ 172(b)(1)(B)—(D), great hardship for the estate is foreseen by petitioners in keeping it open for this length of time. While in fact the trustee can obviate this detriment to the estate—by selling a contingent claim in some instances or simply forgoing it—inconvenience and hindrance might be caused for the bankrupt individual. Without ruling in any way on a question not before us, it is enough to say that a carryover into post-bankruptcy years can be distinguished conceptually as well as practically. The bankrupts in this case had both prior net income and a net loss when their petitions were filed and apparently would have deserved an immediate refund had their tax year terminated on that date; by contrast, the supposed loss-carryover would still need to be matched in some future year by earnings, earnings that might never eventuate at all.
II.
9
Having concluded that the loss-carryback refund claims in this case constituted 'property' at the time of the bankruptcy petitions, it remains for us to decide whether in addition they were property 'which prior to the filing of the petition * * * (the bankrupt) could by any means have transferred * * *.'6 The prime obstacle to an affirmative answer is 31 U.S.C. § 203, which renders 'absolutely null and void' all transfers of any claim against the United States unless among other conditions the claim has been allowed and the amount ascertained. See n. 3, supra. Plainly since the tax laws calculate the refund only on the full year's experience after the year has closed, the claims in the present instance could not have been allowed or ascertained at the time the petitions were filed.
10
The respondent argues that the transferability requirement of § 70a(5) can be met by relying on the long-established rule that § 203 does not apply to prevent transfers by 'operation of law.' See United States v. Aetna Cas. & Surety Co., 338 U.S. 366, 373—374, 70 S.Ct. 207, 211—212, 94 L.Ed. 171; Goodman v. Niblack, 102 U.S. 556, 560, 26 L.Ed. 229.7 The phrasing of § 70a(5), however, suggests that it contemplates a voluntary transfer and is not satisfied simply because property could have been transferred by operation of law, such as by death, bankruptcy, or judicial process. Not only is there practically no form of property that would not be transferable under the broader reading, but such a reading also makes redundant the alternative route for complying with § 70a(5) through showing that the property 'might have been levied upon and sold under judicial process * * *.'8 Admittedly, the Bankruptcy Act defines the word 'transfer' in its general definitional section to include at least certain transfers that are 'involuntary,'9 but legislative history indicates that the introduction of this latter term into the Act 40 years after its framing was not aimed at § 70a(5) at all. See H.R.Rep. No. 1409, 75th Cong., 1st Sess., p. 5; Analysis of H.R. 12889, 74th Cong., 2d Sess., p. 7 House Judiciary (Comm. Print).
11
Difficulty in defining the term 'transfer' is enhanced by the absence of any explanation for Congress' having made transferability a condition in the first place. Bankruptcy Acts prior to the present one enacted in 1898 had no like limitation on the trustee's succession to property, see Bankruptcy Acts of 1867, § 14, 14 Stat. 522; of 1841, § 3, 5 Stat. 442; and of 1800, §§ 5, 13, 2 Stat. 23, 25, and under the predecessor Act claims against the Government passed without impediment to the trustee. See, e.g., Erwin v. United States, 97 U.S. 392, 24 L.Ed. 1065. This history and the chance that the 1898 limitation sought only to respect state policies against alienating property such as a contingent remainder or spendthrift trust fund argue for flatly ignoring the limitation in this instance. See 14 Stan.L.Rev., at 383—386. Nevertheless, we have been shown no legislative history on the point, and an uncertain guess at Congress' intent provides dubious ground for disregarding its plain language. In any event, we are not prepared to accept this argument, just as we cannot now go beyond a narrow definition of the term 'transfer,' in a case in which these points have not been thoroughly briefed by the parties.
12
The Court of Appeals determined that despite § 203 a sufficient voluntary transfer of the loss-carryback refund claim could have been made prior to bankruptcy to satisfy § 70a(5), and on balance we share this view. In Martin v. National Surety Co., 300 U.S. 588, 596, 57 S.Ct. 531, 534—535, 81 L.Ed. 822, a unanimous Court held that § 203, in spite of its broad language, 'must be interpreted in the light of its purpose to give protection to the Government' so that between the parties effect might still be given to an assignment that failed to comply with the statute. The opinion reasoned that after claims have been collected by the assignor, requiring compliance with the invalid assignment by transfer of the recovery to the assignee presented no danger that the Government might become 'embroiled in conflicting claims, with delay and embarrassment and the chance of multiple liability.' 300 U.S., at 594, 57 S.Ct. at 534. While other circumstances encouraged Martin to uphold the assignment and this Court has not faced the problem head-on since that time, we find no reason to retreat now from the basic holding in Martin which was both anticipated and followed by a number of other courts, state and federal. See California Bank v. United States Fid. & Guar. Co., 9 Cir., 129 F.2d 751; Royal Indem. Co. v. United States, 93 F.Supp. 891, 117 Ct.Cl. 736; Leonard v. Whaley, 91 Hun 304, 36 N.Y.S. 147; Ann., 12 A.L.R.2d 460, 468—475 (1950). Among these States is Texas, whose precedents leave little doubt that an assignment of the claims at issue would be enforced in equity in the normal case. Trinity Univ. Ins. Co. v. First State Bank, 143 Tex. 164, 183 S.W.2d 422; see United Hay Co. v. Ford, 124 Tex. 213, 76 S.W.2d 480 (dictum).
13
It should not be pretended that this contemplated 'transfer' is one in the fullest sense that term permits. For example, this Court has ruled that one holding a claim invalidly assigned under § 203 may not sue the Government upon it though he join his assignor as well. United States v. Shannon, 342 U.S. 288, 72 S.Ct. 281, 286, 96 L.Ed. 321. Yet it remains true that a Texas court of equity could and would compel the assignment of any refund received, if indeed it might not try to compel a reluctant assignor to collect the claim or make it over by a valid assignment when that became possible. This, we believe, suffices to make the Segals' claims transferable within the meaning of § 70a(5). Cf. 4 Collier, Bankruptcy 70.37, at 1293, n. 6 (14th ed. 1962).
14
Affirmed.
1
30 Stat. 565, as amended, 11 U.S.C. § 110(a)(5) (1964 ed.). In relevant part that section provides: '(a) The trustee of the estate of a bankrupt * * * shall * * * be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under this title, except insofar as it is to property which is held to be exempt, to all of the following kinds of property wherever located * * * (5) property, including rights of action, which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded, or sequestered * * *.'
2
The wife of Gerald Segal and the estate of the deceased wife of Sam Segal had unsuccessfully urged before the referee their own contingent rights to half the refunds, but review on this issue was not sought.
3
Rev.Stat. § 3477, as amended, 31 U.S.C. § 203 (1964 ed.). The section, so far as relevant, states: 'All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor * * * shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof.'
4
Considerable commentary has been directed to the problem. Practically all the writers agree that it is desirable for the trustee to receive the refunds although a minority contend that existing law will not permit this result. See Herzog, Bankruptcy Law—Modern Trends, 36 Ref.J. 18 (1962); 60 Nw.U.L.Rev. 122 (1965); 40 Notre Dame Law 118 (1964); 14 Stan.L.Rev. 380 (1962); 40 Tex.L.Rev. 569 (1962); 42 Tex.L.Rev. 542 (1964); 17 U.Fla.L.Rev. 241 (1964); 16 U.Miami L.Rev. 345 (1961); 110 U.Pa.L.Rev. 275 (1961).
5
So far as losses by the bankrupt after filing but before the year's end might increase the refund—a situation not claimed to be present in this case—the Court of Appeals suggested '(a) proration of the refund in the ratio of the losses before and after the filing date would be indicated * * *.' 336 F.2d, at 302, n. 5.
6
The 'choice of law' rules relevant to this question are not in dispute. What would constitute a 'transfer' is a matter of federal law. 4 Collier, Bankruptcy 70.15, at 1035—1036 and n. 25 (14th ed. 1962). Whether an item could have been so transferred is determined generally by state law, save that on rare occasions overriding federal law may control this determination or bear upon it. Id., at 1034—1035 and n. 22. The Segals were Texas residents, the business was apparently based in Texas, and the bankruptcy court was located there; no other State's law is claimed to be relevant.
7
This exception is the simplest reason why § 203 does not interfere with the vesting in the trustee of property coming within § 70a(5), for all transfers under § 70a are explicitly by 'operation of law,' see n. 1, supra; but of course property must still qualify as transferable within the meaning of § 70a(5).
8
See n. 1, supra. The respondent has not argued that under Texas law the Segals' inchoate refund claims would be subject to such judicial process, and apparently in Texas the claims' contingent status would render this argument quite doubtful. See 26 Tex.Jur.2d, Garnishment § 17 (1961), and cases there cited.
9
Bankruptcy Act § 1(30), as amended by the Chandler Act, 52 Stat. 842, as amended, 11 U.S.C. § 1(30) (1964 ed.), pertinently reads: "Transfer' shall include the sale and every other and different mode, direct or indirect, of disposing of or of parting with property or with an interest therein or with the possession thereof or of fixing a lien upon property or upon an interest therein, absolutely or conditionally, voluntarily or involuntarily, by or without judicial proceedings, as a conveyance, sale, assignment, payment, pledge, mortgage, lien, encumbrance, gift, security or otherwise * * *.'
| 78
|
382 U.S. 386
86 S.Ct. 478
15 L.Ed.2d 436
CALIFORNIA, Petitioner,v.Lyman E. BUZARD.
No. 40.
Argued Nov. 16, 1965.
Decided Jan. 18, 1966.
Doris H. Maier, Sacramento, Cal., for petitioner.
Thomas Keister Greer, Rocky Mount, Va., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Section 514 of the Soldiers' and Sailors' Civil Relief Act of 1940, 56 Stat. 777, as amended, provides a nonresident serviceman present in a State in compliance with military orders with a broad immunity from that State's personal property and income taxation. Section 514(2)(b) of the Act further provides that
2
'the term 'taxation' shall include but not be limited to licenses, fees, or excises imposed in respect to motor vehicles or the use thereof: Provided, That the license, fee, or excise required by the State, * * * of which the person is a resident or in which he is domiciled has been paid.'1
3
The respondent here, Captain Lyman E. Buzard, was a resident and domiciliary of the State of Washington stationed at Castle Air Force Base in California. He had purchased an Oldsmobile while on temporary duty in Alabama, and had obtained Alabama license plates for it by registering it there. On his return, California refused to allow him to drive the car on California highways with the Alabama plates, and, since he had not registered or obtained license tags in his home State, demanded that he register and obtain license plates in California. When he sought to do so, it was insisted that he pay both the registration fee of $8 imposed by California's Vehicle Code2 and the considerably larger 'license fee' imposed by its Revenue and Taxation code.3 The license fee is calculated at 'two (2) percent of the market value of the vehicle,' § 10752, and is 'imposed * * * in lieu of all taxes according to value levied for State or local purposes on vehicles * * * subject to registration under the Vehicle Code * * *.' § 10758. Captain Buzard refused to pay the 2% fee,4 and was prosecuted and convicted for violating Vehicle Code § 4000, which provides that '(N)o person shall drive * * * any motor vehicle * * * upon a highway unless it is registered and the appropriate fees have been paid under this code.' The conviction, affirmed by the District Court of Appeal, 38 Cal.Rptr. 63, was reversed by the Supreme Court of California, 61 Cal.2d 833, 40 Cal.Rptr. 681, 395 P.2d 593. We granted certiorari, 380 U.S. 931, 85 S.Ct. 937, 13 L.Ed.2d 820, to consider whether § 514 barred California from exacting the 2% tax as a condition of registering and licensing Captain Buzard's car. We conclude that it did, and affirm.
4
The California Supreme Court's reversal of Captain Buzard's conviction depended on its reading of the words 'required by' in the proviso of § 514(2) (b). In the context of the entire statute and its prior construction, it gave those words the effect of barring the host State from imposing a motor vehicle 'license, fee, or excise' unless (1) there was such a tax owing to and assessed by the home State and (2) that tax had not been paid by the serviceman. The mandatory registration statute of Washington, as of most States, imposes the duty to register only as to cars driven on its highways, and Captain Buzard had not driven his car in Washington during the registration year. The court reasoned that there was thus no 'license, fee, or excise' owing to and assessed by his home State. Since there was on this view no tax 'required by' Washington, the court concluded that California could not impose its tax, even though Captain Buzard had not paid any Washington tax.
5
If this reading of the phrase 'required by' in the proviso were correct, no host State could impose any tax on the licensing or registration of a serviceman's motor vehicle unless he had not paid taxes actually owing to and assessed by his home State. If the serviceman were under no obligation to his home State, and payment of taxes was a prerequisite of registration or licensing under the host State statutes, the host State authorities might consider themselves precluded from registering and licensing his car. The California court did not confront this consequence of its construction, because it regarded the relevant provisions of California statutes as allowing registration and licensing whether or not taxes were paid; hence, the possibility of unregistered cars using the California highways was thought not to be at issue.5 The court's construction, however, pertained to the federal, not the state, statute; if correct, it would similarly restrict the imposition of other host States' registration and licensing tax provisions, whether or not they are as flexible as California's. We must therefore consider the California court's construction in the light of the possibility that in at least some host States, it would permit servicemen to escape registration requirements altogether.
6
Thus seen, the California court's construction must be rejected. Although little appears in the legislative history to explain the proviso,6 Congress was clearly concerned that servicemen stationed away from their home State should not drive unregistered or unlicensed motor vehicles. Every State required in 1944, and requires now, that motor vehicles using its highways be registered and bear license plates. Such requirements are designed to facilitate the identification of vehicle owners and the investigation of accidents, thefts, traffic violations and other violations of law. Commonly, if not universally, the statutes imposing the requirements of registration or licensing also prescribe fees which must be paid to authorize state officials to issue the necessary documents and plates. To assure that servicemen comply with the registration and licensing laws of some State, whether of their home State or the host State, we construe the phrase 'license, fee, or excise required by the State * * *' as equivalent to 'license, fee, or excise of the State. * * *' Thus read, the phrase merely indicates Congress' recognition that, in one form or another, all States have laws governing the registration and licensing of motor vehicles, and that such laws impose certain taxes as conditions thereof. The serviceman who has not registered his car and obtained license plates under the laws 'of' his home State, whatever the reason, may be required by the host State to register and license the car under its laws.
7
The proviso is to be read, at the least, as assuring that § 514 would not have the effect of permitting servicemen to escape the obligation of registering and licensing their motor vehicles. It has been argued that § 514(2)(b) also represents a congressional judgment that servicemen should contribute to the costs of highway maintenance, whether at home or where they are stationed, by paying whatever taxes the State of registration may levy for that purpose. We conclude, however, that no such purpose is revealed in the section or its legislative history and that its intent is limited to the purpose of assuring registration. Since at least the 2% tax here involved has been held not essential to that purpose as a matter of state law, we affirm the California Supreme Court's judgment.
8
It is plain at the outset that California may collect the 2% tax only if it is a 'license, fee, or excise' on a motor vehicle or its use. The very purpose of § 514 in broadly freeing the nonresident serviceman from the obligation to pay property and income taxes was to relieve him of the burden of supporting the governments of the States where he was present solely in compliance with military orders. The statute operates whether or not the home State imposes or assesses such taxes against him. As we said in Dameron v. Brodhead, 345 U.S. 322, 326, 73 S.Ct. 721, 724, 97 L.Ed. 1041, '* * * though the evils of potential multiple taxation may have given rise to this provision, Congress appears to have chosen the broader technique of the statute carefully, freeing servicemen from both income and property taxes imposed by any state by virtue of their presence there as a result of military orders. It saved the sole right of taxation to the state of original residence whether or not that state exercised the right.' Motor vehicles were included as personal property covered by the statute. Even if Congress meant to do more by the proviso of § 514(2)(b) than insure that the car would be registered and licensed in one of the two States, it would be inconsistent with the broad purposes of § 514 to read subsection (2)(b) as allowing the host State to impose taxes other than 'licenses, fees, or excises' when the 'license, fee, or excise' of the home State is not paid.7
9
Although the Revenue and Taxation Code expressly denominates the tax 'a license fee,' § 10751, there is no persuasive evidence Congress meant state labels to be conclusive; therefore, we must decide as a matter of federal law what 'licenses, fees, or excises' means in the statute. See Storaasli v. State of Minnesota, 283 U.S. 57, 62, 51 S.Ct. 354, 355, 75 L.Ed. 839. There is nothing in the legislative history to show that Congress intended a tax not essential to assure registration, such as the California 'license fee,' to fall within the category of 'licenses, fees, or excises' host States might impose if home State registration was not effected. While it is true that a few state taxes in effect in 1944, like the California 2% 'license fee,' were imposed solely for revenue purposes, the great majority of state taxes also served to enforce registration and licensing statutes.8 No discussion of existing state laws appears in the Committee Reports. There is thus no indication that Congress was aware that any State required that servicemen contribute to the costs of highway maintenance without regard to the relevance of such requirements to the nonrevenue purposes of state motor vehicle laws.
10
The conclusion that Congress lacked information about the California practice does not preclude a determination that it meant to include such taxes, levied only for revenue, as 'licenses, fees, or excises.' But in deciding that question in the absence of affirmative indication of congressional meaning, we must consider the overall purpose of § 514 as well as the words of subsection (2)(b). Taxes like the California 2% 'license fee' serve primarily a revenue interest, narrower in purpose but no different in kind from taxes raised to defray the general expenses of government.9 It is from the burden of taxes serving such ends that nonresident servicemen were to be freed, in the main, without regard to whether their home States imposed or sought to collect such taxes from them. Dameron v. Brodhead, supra. In recent amendments, Congress has reconfirmed this basic purpose.10 We do not think that subsection (2) (b) should be read as impinging upon it. Rather, reading the Act, as we must, 'with an eye friendly to those who dropped their affairs to answer their country's call,' Le Maistre v. Leffers, 333 U.S. 1, 6, 68 S.Ct. 371, 373, 92 L.Ed. 429, we conclude that subsection (2)(b) refers only to those taxes which are essential to the functioning of the host State's licensing and registration laws in their application to the motor vehicles of nonresident servicemen. Whether the 2% tax is within the reach of the federal immunity is thus not to be tested, as California argues, by whether its inclusion frustrates the administration of California's tax policies. The test, rather, is whether the inclusion would deny the State power to enforce the nonrevenue provisions of state motor vehicle legislation.
11
Whatever may be the case under the registration and licensing statutes of other States, California authorities have made it clear that the California 2% tax is not imposed as a tax essential to the registration and licensing of the serviceman's motor vehicle.11 Not only did the California Supreme Court regard the statutes as permitting registration without payment of the tax, but the District Court of Appeal, in another case growing out of this controversy, expressly held that '(t)he registration statute has an entirely different purpose from the license fee statutes, and it is clearly severable from them.' Buzard v. Justice Court, 198 Cal.App.2d 814, 817, 18 Cal.Rptr. 348, 349—350.12 The California Supreme Court also held, in effect, that invalidity of the 'license fee' as applied was a valid defense to prosecution under Vehicle Code § 4000. In these circumstances, and since the record is reasonably to be read as showing that Captain Buzard would have registered his Oldsmobile but for the demand for payment of the 2% tax, the California Supreme Court's reversal of his conviction is affirmed.
12
Affirmed.
1
50 U.S.C.App. § 574(2)(b). Section 514, 50 U.S.C.App. § 574, reads in relevant part as follows:
'(1) For the purposes of taxation in respect of any person, or of his personal property, income, or gross income, by any State, * * * such person shall not not be deemed to have lost a residence or domicile in any State, * * * solely by reason of being absent therefrom in compliance with military or naval orders, or to have acquired a residence or domicile in, or to have become resident in or a resident of, any other State, * * * while, and solely by reason of being, so absent. For the purposes of taxation in respect of the personal property, income, or gross income of any such person by any State, * * * of which such person is not a resident or in which he is not domiciled, * * * personal property shall not be deemed to be located or present in or to have a situs for taxation in such State, Territory, possession, or political subdivision, or district * * *.
'(2) When used in this section, (a) the term 'personal property' shall include tangible and intangible property (including motor vehicles), and (b) the term 'taxation' shall include but not be limited to licenses, fees, or excises imposed in respect to motor vehicles or the use thereof: Provided, That the license, fee, or excise required by the State * * * of which the person is a resident or in which he is domiciled has been paid.' (50 U.S.C.App. § 574.)
The unitalicized text was enacted in 1942, 56 Stat. 777. Concern whether nonresident servicemen were sufficiently protected from personal property taxation by host States led to a clarifying amendment in 1944, 58 Stat. 722. That amendment gave § 514 its two subsections. The italicized words in subsection (1) are the relevant additions to the original section. Subsection (2) was entirely new.
2
The relevant provisions of the Vehicle Code, enacted in 1935, and recodified in 1959, are §§ 4000, 4750 and 9250.
3
The relevant provisions of the Revenue and Taxation Code, enacted in 1939, are §§ 10751, 10752 and 10758.
4
Captain Buzard did not have sufficient cash to pay the $8 registration fee and the approximately $100 demanded in payment of the 2% tax and penalties. He testified without contradiction that at that time he 'didn't refuse to pay' the tax. 'He (the registration officer) said, 'Do you want to pay it now?' and I said, 'I don't have the money in cash with me, will you accept a check?' and he said, 'No." It was thereafter that Captain Buzard asserted his contention that the tax could not legally be assessed.
5
'Defendant does not contend that California may not, as an exercise of its police power, require him to register his automobile. In fact, his attempt to register the vehicle independently of the payment of fees and penalties was frustrated by the department. Defendant's position is simply that the Soldiers' and Sailors' Civil Relief Act of 1940 * * * prohibits the collection of such fees as an incident to a proper exercise of the police power or otherwise. As a consequence of the narrow question thus raised by the defendant, contentions which look to the purpose of registration in furtherance of proper law enforcement and administration fail to address themselves to the issue.' 61 Cal.2d, at 835, 40 Cal.Rptr., at 682, 395 P.2d, at 594.
The statutory scheme severs the 2% tax provision of the Revenue and Taxation Code from the flat registration fee of $8 requirement in the Vehicle Code. Vehicle Code § 4000, under which respondent was prosecuted, refers only to payments of 'the appropriate fees * * * under this code' and Vehicle Code § 4750 refers only to 'the required fee.' (Emphasis supplied.) The severability clause of the Revenue and Taxation Code, § 26, provides that if application of any provision of that Code to 'any person or circumstance, is held invalid * * * the application of the provision to other persons or circumstances, is not affected.'
6
H.R.Rep. No. 1514, 78th Cong., 2d Sess.; S.Rep. No. 959, 78th Cong., 2d Sess. There were no debates.
7
Contra, Whiting v. City of Portsmouth, 202 Va. 609, 118 S.E.2d 505; Snapp v. Neal, 250 Miss. 597, 164 So.2d 752, reversed 382 U.S. 397, 86 S.Ct. 485.
8
Most States in 1944, as now, conditioned registration and the issuance of license plates upon the payment of a registration fee measured by horsepower, weight or some combination of these factors. See, e.g., Del.Rev.Code 1935, § 5564 (weight); Page's Ohio Gen.Code (1945 Repl. Vol.), § 6292 (weight); Mo.Rev.Stat.Ann.1942, § 8369 (horsepower); N.J.Rev.Stat.1937, § 39:3—8 (horsepower); Conn.Gen.Stat.Rev.1930, § 1578 (cubic displacement); Iowa Code 1939, § 5008.05 (value and weight); Digest Ark.Stat.1937, § 6615 (horsepower and weight).
Other States charged a flat fee. See, e.g., Ore.Comp.Laws 1940, §§ 115—105, 115—106; Ariz.Code 1939, § 66—256; Alaska Comp.Laws 1933, § 3151.
A few States, such as California, charged both a flat registration fee and a larger, variable 'license fee' measured by vehicle value. See, e.g., Cal.Vehicle Code 1935, §§ 140, 148, 370, Cal.Rev. & Tax.Code 1939, §§ 10751—10758; Remington's Wash.Rev.Stat. (1937 Repl. Vol.), §§ 6312—16, 6312—102; compare Miss.Code 1942, §§ 9352—19, 9352—03 (certificate of payment of ad valorem tax required of those who must pay it); Wyo.Comp.Stat.1945, §§ 60—103, 60—104 (flat fee plus ad valorem fee; ad valorem fee to be paid only by persons actually driving in the State).
The statutes commonly recited that these fees, whatever their measure, were imposed for the privilege of using the State's highways; the proceeds were usually devoted to highway purposes. Even where property value was the measure of the fees, they were characterized as privilege, not property, taxes. See, e.g., Ingels v. Riley, 5 Cal.2d 154, 53 P.2d 939, 103 A.L.R. 1 (1936).
9
Indeed, the 2% 'license fee' was adopted in 1935 as a substitute for local ad valorem taxation of automobiles, which had proved administratively impractical. Stockwell, Studies in California State Taxation, 1910—1935, at pp. 108—110 (1939); Final Report of the California Tax Commission 102 (1929). Its basis remains the location of the automobile in the State.
10
Pub.L. § 87—771, 76 Stat. 768.
11
It is not clear from the California Courts' opinions whether they regard the $8 registration fee as a fee essential to the registration and licensing of the motor vehicle. Therefore that question remains open for determination in the state courts.
12
See note 5, supra.
| 12
|
382 U.S. 397
86 S.Ct. 485
15 L.Ed.2d 445
Sergeant Jesse E. SNAPP, Petitioner,v.Honorable W. D. NEAL, State Auditor, et al.
No. 16.
Argued Nov. 15 and 16, 1965.
Decided Jan. 18, 1966.
Leon D. Hubert, Jr., New Orleans, La., for petitioner.
Martin R. McLendon, Jackson, Miss., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This is a companion case to California v. Buzard, 382 U.S. 386, 86 S.Ct. 478, decided today. The State of Mississippi levied an ad valorem tax against a house trailer of the petitioner, Sergeant Jesse E. Snapp. Sergeant Snapp was stationed under military orders at Crystal Springs Air Force Base, Mississippi. He bought the trailer in Mississippi and moved it on Mississippi highways to a private trailer park near the Air Force Base where he placed it on movable concrete blocks and used it as a home. He did not register or license the trailer, or pay any taxes on it in his home State of South Carolina. He challenged the Mississippi tax as a tax on his personal property prohibited by the Soldiers' and Sailors' Civil Relief Act of 1940, 54 Stat. 1178, as amended in 1944, § 514, 50 U.S.C.App. § 574.* The Mississippi Supreme Court sustained the levy on the ground that, as applied to motor vehicles, § 514(2)(b) conditions the nonresident serviceman's immunity from its ad valorem tax on the serviceman's prior payment of the fees imposed by his home State. The court reasoned that since § 514(2)(b), 'stipulat(es) expressly that the taxation should not be limited to privilege and excise taxes, it necessarily follows that the prohibited tax must include the only other general branch of taxation, that is, ad valorem. It is emphasized that the federal statute is meant to include ad valorem taxes as being one of the taxes for which the serviceman is immune, provided he complies with the laws of his home state concerning registration of the motor vehicle. If he fails to so comply, as was done in this case at bar, he is no longer entitled to protection of the Act of Congress.' 250 Miss. 597, at 614—615, 164 So.2d 752, at 760. We granted certiorari, 380 U.S. 931, 85 S.Ct. 935, 13 L.Ed.2d 819. We reverse on the authority of our holding today in Buzard that the failure to pay the motor vehicle 'license, fee, or excise' of the home State entitles the host State only to exact motor vehicle taxes qualifying as 'licenses, fees, or excises'; the ad valorem tax, as the Mississippi Supreme Court acknowledged, is not such an exaction. We thus have no occasion to decide whether the Mississippi Supreme Court was correct in holding that the house trailer was a 'motor vehicle' within the meaning of § 514(2)(b).
2
Reversed.
*
The relevant text of the statute is in California v. Buzard, 382 U.S., p. 388, 86 S.Ct., p. 480, n. 1.
| 12
|
382 U.S. 406
86 S.Ct. 459
15 L.Ed.2d 453
Dan TEHAN, Sheriff of Hamilton County, Ohio, Petitioner,v.UNITED STATES ex rel. Edgar I. SHOTT, Jr.
No. 52.
Argued Nov. 18, 1965.
Decided Jan. 19, 1966.
Rehearing Denied Feb. 28, 1966.
See 383 U.S. 931, 86 S.Ct. 925.
Calvin W. Prem, Cincinnati, Ohio, for petitioner.
Thurman Arnold, Wshington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
In 1964 the Court held that the Fifth Amendment's privilege against compulsory self-incrimination 'is also protected by the Fourteenth Amendment against abridgment by the States.' Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 1492, 12 L.Ed.2d 653. In Griffin v. State of California, decided on April 28, 1965, the Court held that adverse comment by a prosecutor or trial judge upon a defendant's failure to testify in a state criminal trial violates the federal privilege against compulsory self-incrimination, because such comment 'cuts down on the privilege by making its assertion costly.' 380 U.S. 609, 614, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106. The question before us now is whether the rule of Griffin v. State of California is to be given retrospective application.
I.
2
In the summer of 1961 the respondent was brought to trial before a jury in an Ohio court upon an indictment charging violations of the Ohio Securities Act.1 The respondent did not testify in his own behalf, and the prosecuting attorney in his summation to the jury commented extensively upon that fact.2 The jury found the respondent guilty, the judgment of conviction was affirmed by an Ohio court of appeals, and the Supreme Court of Ohio declined further review. State v. Shott, 173 Ohio St. 542, 184 N.E.2d 213. The respondent then brought his case to this Court, claiming several constitutional errors but not attacking the Ohio comment rule as such. On May 13, 1963, we dismissed the appeal and denied certiorari, Mr. Justice Black dissenting. Shott v. Ohio, 373 U.S. 240, 83 S.Ct. 1295, 10 L.Ed.2d 409. All avenues of direct review of the respondent's conviction were thus fully foreclosed more than a year before our decision in Malloy v. Hogan, supra, and almost two years before our decision in Griffin v. State of California, supra.
3
A few weeks after our denial of certiorari the respondent sought a writ of habeas corpus in the United States District Court for the Southern District of Ohio, again alleging various constitutional violations in his state trial. The District Court dismissed the petition, and the respondent appealed to the United States Court of Appeals for the Sixth Circuit. On November 10, 1964, that court reversed, noting that 'the day before the oral argument of this appeal, the Supreme Court in Malloy v. Hogan * * * reconsidered its previous rulings and held that the Fifth Amendment's exception from self-incrimination is also protected by the Fourteenth Amendment against abridgment by the states,' and reasoning that 'the protection against self-incrimination under the Fifth Amendment includes not only the right to refuse to answer incriminating questions, but also the right that such refusal shall not be commented upon by counsel for the prosecution.' 337 F.2d 990, 992.
4
We granted certiorari, requesting the parties 'to brief and argue the question of the retroactivity of the doctrine announced in Griffin v. State of California * * *.' Tehan v. U.S. ex rel. Shott, 381 U.S. 923, 85 S.Ct. 1560, 14 L.Ed.2d 683. Since, as we have noted, the original Ohio judgment of conviction in this case became final long before Griffin v. State of California was decided by this Court, that question is squarely presented.3
II.
5
In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, we held that the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, was not to be given retroactive effect. The Linkletter opinion reviewed in some detail the competing conceptual and jurisprudential theories bearing on the problem of whether a judicial decision that overturns previously established law is to be given retroactive or only prospective application. Mr. Justice Clark's opinion for the Court outlined the history and theory of the problem in terms both of the views of the commentators and of the decisions in this and other courts which have reflected those views. It would be a needless exercise here to survey again a field so recently and thoroughly explored.4
6
Rather, we take as our starting point Linkletter's conclusion that 'the accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective,' that there is '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,' in short that 'the Constitution neither prohibits nor requires retrospective effect.' Upon that premise, resolution of the issue requires us to '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.' 381 U.S., at 628—629, 85 S.Ct. at 1737 1738.5
III.
7
Twining v. State of New Jersey was decided in 1908. 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97. In that case the plaintiffs in error had been convicted by the New Jersey courts after a trial in which the judge had instructed the jury that it might draw an adverse inference from the defendants' failure to testify. The plaintiffs in error urged in this Court two propositions: '(f)irst, that the exemption from compulsory self-incrimination is guaranteed by the Federal Constitution against impairment by the states; and, second, if it be so guaranteed, that the exemption was in fact impaired in the case at bar.' 211 U.S., at 91, 29 S.Ct. at 16. In a lengthy opinion which thoroughly considered both the Privileges and Immunities Clause and the Due Process Clause of the Fourteenth Amendment, the Court held, explicitly and unambiguously, 'that the exemption from compulsory self-incrimination in the courts of the states is not secured by any part of the Federal Constitution.' 211 U.S., at 114, 29 S.Ct., at 26. Having thus rejected the first proposition advanced by the plaintiffs in error, the Court refrained from passing on the second. That is, the Court did not decide whether adverse comment upon a defendant's failure to testify constitutes a violation of the federal constitutional right against self-incrimination.6
8
The rule thus established in the Twining case was reaffirmed many times through the ensuing years. In an opinion for the Court in 1934, Mr. Justice Cardozo cited Twining for the proposition that '(t)he privilege against self-incrimination may be withdrawn and the accused put upon the stand as a witness for the state.' Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674, 90 A.L.R. 575. Two years later Chief Justice Hughes, writing for a unanimous Court, reiterated the explicit statements of the rule in Twining and Snyder, noting that '(t)he compulsion to which the quoted statements refer is that of the processes of justice by which the accused may be called as a witness and required to testify.' Brown v. State of Mississippi, 297 U.S. 278, 285, 56 S.Ct. 461, 464, 80 L.Ed. 682. In 1937 the Court again approved the Twining doctrine in Palko v. Connecticut, 302 U.S. 319, 324, 325—326, 58 S.Ct. 149, 82 L.Ed. 288. In Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1233, the issue was once more presented to the Court in much the same form as it had been presented almost 40 years earlier in Twining. In Adamson there had been comment by judge and prosecutor upon the defendant's failure to testify at his trial, as permitted by the California Constitution. The Court again followed Twining in holding that the Fourteenth Amendment does not require a State to accord the privilege against self-incrimination, and, as in Twining, the Court did not reach the question whether adverse comment upon a defendant's failure to testify would violate the Fifth Amendment privilege.7 Thereafter the Court continued to adhere to the Twining rule, notably in Knapp v. Schweitzer, decided in 1958, 357 U.S. 371, 374, 78 S.Ct. 1302, 1304, 2 L.Ed.2d 1393, and in Cohen v. Hurley, decided in 1961, 366 U.S. 117, 127—129, 81 S.Ct. 954, 960—961, 6 L.Ed.2d 156.
9
In recapitulation, this brief review clearly demonstrates: (1) For more than half a century, beginning in 1908, the Court adhered to the position that the Federal Constitution does not require the States to accord the Fifth Amendment privilege against self-incrimination. (2) Because of this position, the Court during that period never reached the question whether the federal guarantee agaisnt self-incrimination prohibits adverse comment upon a defendant's failure to testify at his trial.8 Although there were strong dissenting voices,9 the Court made not the slightest deviation from that position during a period of more than 50 years.
10
Thus matters stood in 1964, when Malloy v. Hogan announced that the Fifth Amendment privilege against self-incrimination is protected by the Fourteenth Amendment against abridgment by the States (378 U.S., at 6, 84 S.Ct. at 1492). Less than a year later, on April 28, 1965, Griffin v. California held that the Fifth Amendment 'in its bearing on the States by reason of the Fourteenth Amendment, forbids * * * comment by the prosecution on the accused's silence * * *.' (380 U.S., at 615, 85 S.Ct. at 1233.)
IV.
11
Thus we must reckon here, as in Linkletter, 381 U.S., at 636, 85 S.Ct. at 1740, with decisional history of a kind which Chief Justice Hughes pointed out '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, 308 U.S. 371, 374, 60 S.Ct. 317, 318, 84 L.Ed. 329. It is against this background that we look to the purposes of the Griffin rule, the reliance placed upon the Twining doctrine, and the effect on the administration of justice of a retrospective application of Griffin. See Linkletter v. Walker, 381 U.S., at 636, 85 S.Ct. at 1740.
12
In Linkletter, the Court stressed that the prime purpose of the rule of Mapp v. Ohio,10 rejecting the doctrine of Wolf v. People of State of Colorado11 as to the admissibility of unconstitutionally seized evidence, was 'to deter the lawless action of the police and to effectively enforce the Fourth Amendment.' 381 U.S., at 637, 85 S.Ct. at 1742. There we could not '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.' Ibid.
13
No such single and distinct 'purpose' can be attributed to Griffin v. State of California, holding it constitutionally impermissible for a State to permit comment by a judge or prosecutor upon a defendant's failure to testify in a criminal trial. The Griffin opinion reasoned that such comment 'is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.' 380 U.S., at 614, 85 S.Ct. at 1233. It follows that the 'purpose' of the Griffin rule is to be found in the whole complex of values that the privilege against self-incrimination itself represents, values described in the Malloy case as reflecting 'recognition that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay. * * * Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth.'12 378 U.S., at 7—8, 84 S.Ct. at 1493.
14
Insofar as these 'purposes' of the Fifth Amendment privilege against compulsory self-incrimination bear on the question before us in the present case, several considerations become immediately apparent. First, the basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution 'shoulder the entire load.' Second, since long before Twining v. New Jersey, all the States have by their own law respected these basic purposes by extending the protection of the testimonial privilege against self-incrimination to every defendant tried in their criminal courts. In Twining the Court noted that 'all the states of the Union have, from time to time, with varying form, but uniform meaning, included the privilege in their Constitutions, except the states of New Jersey and Iowa, and in those States it is held to be part of the existing law.' 211 U.S., at 92, 29 S.Ct. at 16. See also 8 Wigmore Evidence § 2252 (McNaughton rev. 1961). It follows that such variations as may have existed among the States in the application of their respective guarantees against self-incrimination during the 57 years between Twining and Griffin did not go to the basic purposes of the federal privilege. And finally, insofar as strict application of the federal privilege against self-incrimination reflects the Constitution's concern for the essential values represented by 'our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life,"13 any impingement upon those values resulting from a State's application of a variant from the federal standard cannot now be remedied. As we pointed out in Linkletter with respect to the Fourth Amendment rights there in question, 'the ruptured privacy * * * cannot be restored.' 381 U.S., at 637, 85 S.Ct. at 1742.
15
As in Mapp, therefore, we deal here with a doctrine which rests on considerations of quite a different order from those underlying other recent constitutional decisions which have been applied retroactively. The basic purpose of a trial is the determination of truth, and it is self-evident that to deny a lawyer's help through the technical intricacies of a criminal trial or to deny a full opportunity to appeal a conviction because the accused is poor is to impede that purpose and to infect a criminal proceeding with the clear danger of convicting the innocent. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650; Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Eskridge v. Washington State Board of Prison Terms & Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269. The same can surely be said of the wrongful use of a coerced confession. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205; McNerlin v. Denno, 378 U.S. 575, 84 S.Ct. 1933, 12 L.Ed.2d 1041; Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948. By contrast, the Fifth Amendment's privilege against self-incrimination is not an adjunct to the ascertainment of truth. That privilege, like the guarantees of the Fourth Amendment, stands as a protection of quite different constitutional values—values reflecting the concern of our society for the right of each individual to be let alone. To recognize this is no more than to accord those values undiluted respect.
16
There can be no doubt of the States' reliance upon the Twining rule for more than half a century, nor can it be doubted that they relied upon that constitutional doctrine in the utmost good faith. Two States amended their constitutions so as expressly to permit comment upon a defendant's failure to testify, Ohio in 1912,14 and California in 1934.15 At least four other States followed some variant of the rule permitting comment.16
17
Moreover, this reliance was not only invited over a much longer period of time, durign which the Twining doctrine was repeatedly reaffirmed in this Court, but was of unquestioned legitimacy as time, during which the Twining doctrine the doctrine of Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, considered in Linkletter as an important factor militating against the retroactive application of Mapp. During the 12-year period between Wolf v. People of State of Colorado and Mapp v. Ohio, the States were aware that illegal seizure of evidence by state officers violated the Federal Constitution.17 In the 56 years that elapsed from Twining to Malloy, by contrast, the States were repeatedly told that comment upon the failure of an accused to testify in a state criminal trial in no way violated the Federal Constitution.18
18
The last important factor considered by the Court in Linkletter was 'the effect on the administration of justice of a retrospective application of Mapp.' 381 U.S., at 636, 85 S.Ct. at 1741. A retrospective application of Griffin v. California would create stresses upon the administration of justice more concentrated but fully as great as would have been created by a retrospective application of Mapp. A retrospective application of Mapp would have had an impact only in those States which had not themselves adopted the exclusionary rule, apparently some 24 in number.19 A retrospective application of Griffin would have an impact only upon those States which have not themselves adopted the no-comment rule, apparently six in number.20 But upon those six States the impact would be very grave indeed. It is not in every criminal trial that tangible evidence of a kind that might raise Mapp issues is offered. But it may fairly be assumed that there has been comment in every single trial in the courts of California, Connecticut, Iowa, New Jersey, New Mexico, and Ohio, in which the defendant did not take the witness stand—in accordance with state law and with the United States Constitution as explicitly interpreted by this Court for 57 years.
19
Empirical statistics are not available, but experience suggests that California is not indulging in hyperbole when in its amicus curiae brief in this case it tells us that 'Prior to this Court's decision in Griffin, literally thousands of cases were tried in California in which comment was made upon the failure of the accused to take the stand. Those reaping the greatest benefit from a rule compelling retroactive application of Griffin would be (those) under lengthy sentences imposed many years before Griffin. Their cases would offer the least likelihood of a successful retrial since in many, if not most, instances, witnesses and evidence are no longer available.' There is nothing to suggest that what would be true in California would not also be true in Connecticut, Iowa, New Jersey, New Mexico, and Ohio. To require all of those States now to void the conviction of every person who did not testify at his trial would have an impact upon the administration of their criminal law so devastating as to need no elaboration.
V.
20
We have proceeded upon the premise that 'we are neither required to apply, nor prohibited from applying a decision retrospectively.' Linkletter v. Walker, 381 U.S., at 629, 85 S.Ct. at 1738. We have considered the purposes of the Griffin rule, the reliance placed upon the Twining doctrine, and the effect upon the administration of justice of a retrospective application of Griffin. After full consideration of all the factors, we are not able to say that the Griffin rule requires retrospective application.
21
The judgment is vacated and the case remanded to the Court of Appeals for the Sixth Circuit for consideration of the claims contained in the respondent's petition for habeas corpus, claims which that court has never considered. It is so ordered.
22
Judgment vacated and case remanded with directions.
23
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissents for substantially the same reasons stated in his dissenting opinion in Linkletter v. Walker, 381 U.S. 618, at 640, 85 S.Ct. 1731, at 1743.
24
THE CHIEF JUSTICE took no part in the decision of this case.
25
Mr. Justice FORTAS took no part in the consideration or decision of this case.
1
Ohio Rev. Code §§ 1707.01—1707.45.
2
Since 1912 a provision of the Ohio Constitution has permitted a prosecutor to comment upon a defendant's failure to testify in a criminal trial. Article I, § 10 of the Constitution of Ohio provides, in part, as follows: 'No person shall be compelled, in any criminal case, to be a witness against himself; but his failure to testify may be considered by the court and jury and may be the subject of comment by counsel.'
Section 2945.43 of the Revised Code of Ohio contains substantially the same wording.
3
The Supreme Court of California and the Supreme Court of Ohio have both considered the question, and each court has unanimously held that under the controlling principles discussed in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, the Griffin rule is not to be applied retroactively in those States. In re Gaines, 63 Cal.2d 234, 45 Cal.Rptr. 865, 404 P.2d 473; Pinch v. Maxwell, 3 Ohio St.2d 212, 210 N.E.2d 883.
As in Linkletter, the question in the present case is not one of 'pure prospectivity.' The rule announced in Griffin was applied to reverse Griffin's conviction. Compare England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440. Nor is there any question of the applicability of the Griffin rule to cases still pending on direct review at the time it was announced. Cf. O'Connor v. Ohio, 382 U.S. 286, 86 S.Ct. 445. December 13, 1965.
The precise question is whether the rule of Griffin v. State of California is to be applied to cases in which the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari elapsed or a petition for certiorari finally denied, all before April 28, 1965.
4
See Linkletter v. Walker, 381 U.S. 618, 622—628, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601.
5
For a recent commentary on the Linkletter decision and a suggested alternative approach to the problem, see Mishkin, The Supreme Court 1964 Term—Foreward: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv.L.Rev. 56.
6
'We have assumed only for the purpose of discussion that what was done in the case at bar was an infringement of the privilege against self-incrimination. We do not intend, however, to lend any countenance to the truth of that assumption. The courts of New Jersey, in adopting the rule of law which is complained of here, have deemed it consistent with the privilege itself, and not a denial of it. * * * The authorities upon the question are in conflict. We do not pass upon the conflict, because, for the reasons given, we think that the exemption from compulsory self-incrimination in the courts of the states is not secured by any part of the Federal Constitution.' 211 U.S., at 114, 29 S.Ct., at 26.
7
As the Court pointed out in Adamson, 332 U.S., at 50, n. 6, 67 S.Ct. at 1674, this question had never arisen in the federal courts, because a federal statute had been interpreted as prohibiting adverse comment upon a defendant's failure to testify in a federal criminal trial. See 20 Stat. 30, as amended, now 18 U.S.C. § 3481; Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257; Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650.
8
In the federal judicial system, the matter was controlled by a statute. See n. 7, supra.
9
See, e.g., Mr. Justice Black's historic dissenting opinion in Adamson v. California, 332 U.S., at 68, 67 S.Ct. at 1683.
10
367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
11
338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782.
12
These values were further catalogued in Mr. Justice Goldberg's opinion for the Court in Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678, announced the same day as Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; 'The privilege against self-incrimination 'registers an important advance in the development of our liberty—'one of the great landmarks in man's struggle to make himself civilized." Ullmann v. United States, 350 U.S. 422, 426, 76 S.Ct. 497, 500, 100 L.Ed. 511 (53 A.L.R.2d 1008). (The quotation is from Griswold, The Fifth Amendment Today (1955), 7.) It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates 'a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest entire load,' 8 Wigmore, Evidence (McNaughton entire load,' 8 Wigmore, Evidence (McNaughton rev., 1961), 317; our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life,' United States v. Grunewald, 2 Cir., 233 F.2d 556, 581—582 (Frank, J., dissenting), rev'd 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (62 A.L.R.2d 1344); our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes 'a shelter to the guilty,' is often 'a protection to the innocent.' Quinn v. United States, 349 U.S. 155, 162, 75 S.Ct. 668, 673, 99 L.Ed. 964 (51 A.L.R.2d 1157.)' 378 U.S., at 55, 84 S.Ct., at 1597. '(T)he privilege against self-incrimination represents many fundamental values and aspirations. It is 'an expression of the moral striving of the community. * * * a reflection of our common conscience * * *.' Malloy v. Hogan, 378 U.S. 9, n. 7, quoting Griswold, The Fifth Amendment Today (1955), 73. That is why it is regarded as so fundamental a part of our constitutional fabric, despite the fact that 'the law and the lawyers * * * have never made up their minds just what it is supposed to do or just whom it is intended to protect.' Kalven, Invoking the Fifth Amendment—Some Legal and Impractical Considerations, 9 Bull. Atomic Sci. 181, 182.' 378 U.S., at 56, n. 5, 84 S.Ct. at 1597.
13
See n. 12, supra.
14
See n. 2, supra.
15
California Constitution, Art. I, § 13.
16
See State v. Heno, 119 Conn. 29, 174 A. 181, 94 A.L.R. 696; State v. Ferguson, 226 Iowa 361, 372—373, 283 N.W. 917, 923; State v. Corby, 28 N.J. 106, 145 A.2d 289; State v. Sandoval, 59 N.M. 85, 279 P.2d 850.
17
In Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, it was unequivocally determined by a unanimous Court that the Federal Constitution, by virtue of the Fourteenth Amendment, prohibits unreasonable searches and seizures by state officers. 'The security of one's privacy against arbitrary intrusion by the police * * * is * * * implicit in 'the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause.' 338 U.S., at 27—28, 69 S.Ct. at 1361.
18
See, for example, Scott v. California, 364 U.S. 471, 81 S.Ct. 245, 5 L.Ed.2d 222, where, as late as December 1960, only a single member of the Court expressed dissent from the dismissal of an appeal challenging the constitutionality of the California comment rule.
19
See Elkins v. United States, 364 U.S. 206, at 224—225, 80 S.Ct. 1437, at 1447, 4 L.Ed.2d 1669 (Appendix).
20
See notes 2, 15, and 16, supra.
| 01
|
382 U.S. 399
86 S.Ct. 518
15 L.Ed.2d 447
Jay GIACCIO, Appellant,v.STATE OF PENNSYLVANIA.
No. 47.
Argued Dec. 6, 1965.
Decided Jan. 19, 1966.
Peter Hearn, Philadelphia, Pa., for appellant.
John S. Halsted, West Chester, Pa., for appellee.
Mr. Justice BLACK delivered the opinion of the Court.
1
Appellant Giaccio was indicted by a Pennsylvania grand jury and charged with two violations of a state statute which makes it a misdemeanor to wantonly point or discharge a firearm at any other person.1 In a trial before a judge and jury appellant's defense was that the firearm he had discharged was a starter pistol which only fired blanks. The jury returned a verdict of not guilty on each charge, but acting pursuant to instructions of the court given under authority of a Pennsylvania statute of 1860, assessed against appellant the court costs of one of the charges (amounting to $230.95). The Act of 1860, set out below,2 provides among other things that:
2
'* * * in all cases of acquittals by the petit jury on indictments for (offenses other than felonies), the jury trying the same shall determine, by their verdict, whether the county, or the prosecutor, or the defendant shall pay the costs * * * and whenever the jury shall determine as aforesaid, that the * * * defendant shall pay the costs, the court in which the said determination shall be made shall forthwith pass sentence to that effect, and order him to be committed to the jail of the county until the costs are paid, unless he give security to pay the same within ten days.'
3
Appellant made timely objections to the validity of this statute on several grounds,3 including an objection that the statute is unconstitutionally vague in violation of the Fourteenth Amendment's Due Process Clause because it authorizes juries to assess costs against acquitted defendants, with a threat of imprisonment until the costs are paid, without prescribing definite standards to govern the jury's determination. The trial court held the 1860 Act void for vagueness in violation of due process, set aside the jury's verdict imposing costs on the appellant, and vacated the 'sentence imposed upon Defendant that he pay said costs forthwith or give security to pay the same within ten (10) days and to stand committed until he had complied therewith.'4 The Superior Court of Pennsylvania, one judge dissenting, reversed the trial court closing its opinion this way:
4
'We can find no reason that would justify our holding it (the 1860 Act) unconstitutional.
5
'Order reversed, sentence reinstated.'5
6
The State Supreme Court, again with one judge dissenting, agreed with the Superior Court and affirmed its judgment.6 This left appellant subject to the judgment for costs and the 'sentence' to enforce payment. We noted jurisdiction to consider the question raised concerning vagueness and absence of proper standards in the 1860 Act. 381 U.S. 923, 85 S.Ct. 1558, 14 L.Ed.2d 682. We agree with the trial court and the dissenting judges in the appellate courts below that the 1860 Act is invalid under the Due Process Clause because of vagueness and the absence of any standards sufficient to enable defendants to protect themselves against arbitrary and discriminatory impositions of costs.
7
1. In holding that the 1860 Act was not unconstitutionally vague the State Superior and Supreme Courts rested largely on the declaration that the Act 'is not a penal statute' but simply provides machinery for the collection of costs of a 'civil character' analogous to imposing costs in civil cases 'not as a penalty but rather as compensation to a litigant for expenses. * * *' But admission of an analogy between the collection of civil costs and collection of costs here does not go far towards settling the constitutional question before us. Whatever label be given the 1860 Act, there is no doubt that it provides the State with a procedure for depriving an acquitted defendant of his liberty and his property. Both liberty and property are specifically protected by the Fourteenth Amendment against any state deprivation which does not meet the standards of due process, and this protection is not to be avoided by the simple label a State chooses to fasten upon its conduct or its statute. So here this state Act whether labeled 'penal' or not must meet the challenge that it is unconstitutionally vague.
8
2. It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case. See, e.g., Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377. This 1860 Pennsylvania Act contains no standards at all, nor does it place any conditions of any kind upon the jury's power to impose costs upon a defendant who has been found by the jury to be not guilty of a crime charged against him. The Act, without imposing a single condition, limitation or contingency on a jury which has acquitted a defendant simply says the jurors 'shall determine, by their verdict, whether * * * the defendant shall pay the costs' whereupon the trial judge is told he 'shall forthwith pass sentence to that effect, and order him (defendant) to be committed to the jail of the county' there to remain until he either pays or gives security for the costs. Certainly one of the basic purposes of the Due Process Clause has always been to protect a person against having the Government impose burdens upon him except in accordance with the valid laws of the land. Implicit in this constitutional safeguard is the premise that the law must be one that carries an understandable meaning with legal standards that courts must enforce. This state Act as written does not even begin to meet this constitutional requirement.
9
3. The State contends that even if the Act would have been void for vagueness as it was originally written, subsequent state court interpretations have provided standards and guides that cure the former constitutional deficiencies. We do not agree. All of the so-called court-created conditions and standards still leave to the jury such broad and unlimited power in imposing costs on acquitted defendants that the jurors must make determinations of the crucial issue upon their own notions of what the law should be instead of what it is. Pennsylvania decisions have from time to time said expressly, or at least implied, that juries having found a defendant not guilty may impose costs upon him if they find that his conduct, though not unlawful, is 'reprehensible in some respect,' 'improper,' outrageous to 'morality and justice,' or that his conduct was 'not reprehensible enough for a criminal conviction but sufficiently reprehensible to deserve an equal distribution of costs' or that though acquitted 'his innocence may have been doubtful.'7 In this case the trial judge instructed the jury that it might place the costs of prosecution on the appellant, though found not guilty of the crime charged, if the jury found that 'he has been guilty of some misconduct less than the offense which is charged but nevertheless misconduct of some kind as a result of which he should be required to pay some penalty short of conviction (and) * * * his misconduct has given rise to the prosecution.'
10
It may possibly be that the trial court's charge comes nearer to giving a guide to the jury than those that preceded it, but it still falls short of the kind of legal standard due process requires. At best it only told the jury that if it found appellant guilty of 'some misconduct' less than that charged against him, it was authorized by law to saddle him with the State's costs in its unsuccessful prosecution. It would be difficult if not impossible for a person to prepare a defense against such general abstract charges as 'misconduct,' or 'reprehensible conduct.' If used in a statute which imposed forfeitures, punishments or judgments for costs, such loose and unlimiting terms would certainly cause the statute to fail to measure up to the requirements of the Due Process Clause. And these terms are no more effective to make a statute valid which standing alone is void for vagueness.
11
We hold that the 1860 Act is constitutionally invalid both as written and as explained by the Pennsylvania courts.8 The judgment against appellant is reversed and the case is remanded to the State Supreme Court for further proceedings not inconsistent with this opinion.
12
Reversed and remanded.
13
Mr. Justice STEWART, concurring.
14
I concur in the Court's determination that the Pennsylvania statute here in question cannot be squared with the standards of the Fourteenth Amendment, but for reasons somewhat different from those upon which the Court relies. It seems to me that, despite the Court's disclaimer,* much of the reasoning in its opinion serves to cast grave constitutional doubt upon the settled practice of many States to leave to the unguided discretion of a jury the nature and degree of punishment to be imposed upon a person convicted of a criminal offense. Though I have serious questions about the wisdom of that practice, its constitutionality is quite a different matter. In the present case it is enough for me that Pennsylvania allows a jury to punish a defendant after finding him not guilty. That, I think, violates the most rudimentary concept of due process of law.
15
Mr. Justice FORTAS, concurring.
16
In my opinion, the Due Process Clause of the Fourteenth Amendment does not permit a State to impose a penalty or costs upon a defendant whom the jury has found not guilty of any offense with which he has been charged.
1
Act of June 24, 1939, Pub.L. 872, § 716, Pa.Stat.Ann., Tit. 18, § 4716.
2
Act of March 31, 1860, Pub.L. 427, § 62, Pa.Stat.Ann., Tit. 19, § 1222, provides:
'In all prosecutions, cases of felony excepted, if the bill of indictment shall be returned ignoramus, the grand jury returning the same shall decide and certify on such bill whether the county or the prosecutor shall pay the costs of prosecution; and in all cases of acquittals by the petit jury on indictments for the offenses aforesaid, the jury trying the same shall determine, by their verdict, whether the county, or the prosecutor, or the defendant shall pay the costs, or whether the same shall be apportioned between the prosecutor and the defendant, and in what proportions; and the jury, grand or petit, so determining, in case they direct the prosecutor to pay the costs or any portion thereof, shall name him in their return or verdict; and whenever the jury shall determine as aforesaid, that the prosecutor or defendant shall pay the costs, the court in which the said determination shall be made shall forthwith pass sentence to that effect, and order him to be committed to the jail of the county until the costs are paid, unless he give security to pay the same within ten days.'
3
One objection was that the Act violates the Equal Protection Clause of the Fourteenth Amendment because it discriminates against defendants in misdemeanor cases by imposing greater burdens upon them than upon defendants in felony cases and cases involving summary offenses. We do not reach or decide this question.
4
30 Pa.Dist. & C.O.R.2d 463 (Q.S. Chester, 1963).
5
202 Pa.Super. 294, 310, 196 A.2d 189, 197.
6
415 Pa. 139, 202 A.2d 55.
7
The foregoing quotations appear in a number of Pennsylvania cases including Commonwealth v. Tilghman, 4 S. & R. 127; Baldwin v. Commonwealth, 26 Pa. 171; Commonwealth v. Daly, 11 Pa.Dist. 527 (Q.S.Clearfield); and in the opinion of the Superior Court in this case, 202 Pa.Super. 294, 196 A.2d 189.
8
In so holding we intend to cast no doubt whatever on the constitutionality of the settled practice of many States to leave to juries finding defendants guilty of a crime the power to fix punishment within legally prescribed limits.
*
See n. 8, ante.
| 34
|
382 U.S. 1003
86 S.Ct. 610
15 L.Ed.2d 494
Stephen S. CHANDLER, United States District Judge for the Western District of Oklahoma, petitioner,v.JUDICIAL COUNCIL OF THE TENTH CIRCUIT OF the UNITED STATES.
No. 1111, Misc.
Supreme Court of the United States
January 21, 1966
Thomas J. Kenan, for petitioner.
Solicitor General Marshall, for respondent.
Petitioner applied to Mr. Justice White, Circuit Justice for the Tenth Circuit, for "Stay of Order of Judicial Council of the Tenth Circuit of the United States" in the above matter, and the application was by him referred to the Court for its consideration and action.
It appearing to the Court from the response of the Solicitor General to the application that the order from which relief is sought is entirely interlocutory in character pending prompt further proceedings inquiring into the administration of Judge Chandler of judicial business in the Western District of Oklahoma, and that at such proceedings Judge Chandler will be permitted to appear before the Council, with counsel, and that after such proceedings the Council will, as soon as possible, undertake to decide what use, if any, should be made of such powers as it may have in the premises, it is hereby ordered that the application for stay be denied pending this contemplated prompt action of the Judicial Council. The Court expresses no opinion concerning the propriety of the interlocutory action taken.
Dissenting opinion by Mr. Justice Black with whom Mr. Justice Douglas joins:
1
United States District Judge Stephen S. Chandler here asks for a stay of an "Order" of the Judicial Council of the Tenth Circuit directing that until further order of the Council, Judge Chandler "take no action whatsoever in any case or proceeding now or hereafter pending" in his court, that cases now assigned to him be assigned to other judges, and that no new actions filed be assigned to him. If this order is not stayed and if the Judicial Council has some way to enforce it, the order means that Judge Chandler is completely barred from performing any of his official duties and in effect is removed or ousted from office pending further orders of the Council. The reason given by the Council for this drastic action is that it "finds that Judge Chandler is presently unable, or unwilling to discharge efficiently the duties of his office. * * * " By refusing to stay the Council's order, the Court necessarily acts on the premise that the Council has a legal right to remove Judge Chandler from office at least temporarily. Though the Court tries to soft-pedal its refusal to stay the order by referring to it as "interlocutory in character," the stark fact which cannot be disguised is that a United States District Judge, duly appointed by the President and approved by the Senate, is with this Court's imprimatur locked out of his office pending "further proceedings" by the Judicial Council. I think the Council is completely without legal authority to issue any such order, either temporary or permanent, with or without a hearing, that no statute purports to authorize it, and that the Constitution forbids it. Nor can the effect of the order be softened by asserting that Judge Chandler will be permitted to have a lawyer represent him before his fellow judges. Assuming that we have jurisdiction to stay an order from a governmental agency that has no power at all to do what this Council has done, I would stay this "Order" instanter.
2
The Council states that its order was made "pursuant to the power and authority vested in the Judicial Council by the Act of June 25, 1948, [c.] p. 646, § 332, 62 Stat. 902, 28 U.S.C. § 332." That section so far as relevant reads:
3
"Each judicial council shall make all necessary orders for the effective and expeditious administration of the business of the courts within its circuit. The district courts shall promptly carry into effect all orders of the judicial council."
4
There is no language whatever in this or any other Act which can by any reasonable interpretation be read as giving the Council a power to pass upon the work of district judges, declare them inefficient and strip them of their power to act as judges. The language of Congress indicates a purpose to vest the Judicial Council with limited administrative powers; nothing in this language, or the history behind it, indicates that a Council of Circuit Court Judges was to be vested with power to discipline district judges, and in effect remove them from office. This is clearly and simply a proceeding by circuit judges to inquire into the fitness of a district judge to hold his office and to remove him if they so desire. I do not believe Congress could, even if it wished, vest any power in the circuit judges.
5
One of the great advances made in the structure of government by our constitution was its provision for an independent judiciary for judges who could do their duty as they saw it without having to account to superior court judges or to any one else except the Senate sitting as a court of impeachment. Article II, § 4 of the Constitution provides that "Officers of the United States," which include judges, "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors," and Art. I, §§ 2 and 3 state that impeachment can be instituted only on recommendation of the House of Representatives and that trial can be held only by the Senate. To hold that judges can do what this Judicial Council has tried to do to Judge Chandler here would in my judgment violate the plan of our Constitution to preserve, as far as possible, the liberty of the people by guaranteeing that they have judges wholly independent of the Government or any of its agents with the exception of the United States Congress acting under its limited power of impeachment. We should stop in its infancy, before it has any growth at all, this idea that the United States district judges can be made accountable for their efficiency or lack of it to the judges just over them in the federal judicial system. The only way to do that is to grant this stay and I am in favor of granting it.
| 89
|
382 U.S. 448
86 S.Ct. 607
15 L.Ed.2d 517
UNITED STATESv.CALIFORNIA.
No. 5, Orig.
Supreme Court of the United States
January 31, 1966
Solicitor General Marshall, Louis F. Claiborne and George S. Swarth, for the United States.
Thomas C. Lynch, Atty. Gen. of California, Jay L. Shavelson, Asst. Atty. Gen., Richard H. Keatinge, Special Asst. Atty. Gen., and Warren J. Abbott and N. Gregory Taylor, Deputy Attys. Gen., for the State of California.
Supplemental Decree.
PER CURIAM.
1
In accordance with the Court's opinion in United States v. State of California, 381 U.S. 139, 85 S.Ct. 1401, 14 L.Ed.2d 296, proposed decrees have been submitted by the parties. The Court has examined such proposed decrees and the briefs and papers submitted in support thereof, and enters the following decree:
2
The United States having moved for entry of a supplemental decree herein, and the matter having been referred to the late William H. Davis as Special Master to hold hearings and recommend answers to certain questions with respect thereto, and the Special Master having held such hearings and having submitted his report, and the issues having been modified by the supplemental complaint of the United States and the answer of the State of California thereto, and the parties having filed amended exceptions to the report of the Special Master, and the Court having received briefs and heard argument with respect thereto and having by its opinion of May 17, 1965, approved the recommendations of the Special Master, with modifications, it is ordered, adjudged and decreed that the decree heretofore entered in this cause on October 27, 1947, 332 U.S. 804, 68 S.Ct. 20, 92 L.Ed. 382, be, and the same is hereby, modified to read as follows:
3
1. As against the State of California and all persons claiming under it, the subsoil and seabed of the continental shelf, more than three geographical miles seaward from the nearest point or points on the coast line, at all times pertinent hereto have appertained and now appertain to the United States and have been and now are subject to its exclusive jurisdiction, control and power of disposition. The State of California has no title thereto or property interest therein.
4
2. As used herein, 'coast line' means—
5
(a) The line of mean lower low water on the mainland, on islands, and on low-tide elevations lying wholly or partly within three geographical miles from the line of mean lower low water on the mainland or on an island; and
6
(b) The line marking the seaward limit of inland waters.
7
The coast line is to be taken as heretofore or hereafter modified by natural or artificial means, and includes the outermost permanent harbor works that form an integral part of the harbor system within the meaning of Article 8 of the Convention on the Territorial Sea and the Contiguous Zone, T.I.A.S. No. 5639.
8
3. As used herein—
9
(a) 'Island' means a naturally-formed area of land surrounded by water, which is above the level of mean high water; (b) 'Low-tide elevation' means a naturally-formed area of land surrounded by water at mean lower low water, which is above the level of mean lower low water but not above the level of mean high water;
10
(c) 'Mean lower low water' means the average elevation of all the daily lower low tides occurring over a period of 18.6 years;
11
(d) 'Mean high water' means the average elevation of all the high tides occurring over a period of 18.6 years;
12
(e) 'Geographical mile' means a distance of 1852 meters (6076.10333 * * * U.S. Survey Feet or approximately 6076.11549 International Feet).
13
4. As used herein, 'inland waters' means waters landward of the baseline of the territorial sea, which are now recognized as internal waters of the United States under the Convention on the Territorial Sea and the Contiguous Zone. The inland waters referred to in paragraph 2(b) hereof include—
14
(a) Any river or stream flowing directly into the sea, landward of a straight line across its mouth;
15
(b) Any port, landward of its outermost permanent harbor works and a straight line across its entrance;
16
(c) Any 'historic bay,' as that term is used in paragraph 6 of Article 7 of the Convention, defined essentially as a bay over which the United States has traditionally asserted and maintained dominion with the acquiescence of foreign nations;
17
(d) Any other bay (defined as a well-marked coastal indentation having such penetration, in proportion to the width of its entrance, as to contain landlocked waters, and having an area, including islands within the bay, at least as great as the area of semicircle whose diameter equals the length of the closing line across the entrance of the bay, or the sum of such closing lines if the bay has more than one entrance), landward of a straight line across its entrance or, if the entrance is more than 24 geographical miles wide, landward of a straight line not over 24 geographical miles long, drawn within the bay so as to enclose the greatest possible amount of water. An estuary of a river is treated in the same way as a bay.
18
5. In drawing a closing line across the entrance of any body of inland water having pronounced headlands, the line shall be drawn between the points where the plane of mean lower low water meets the outermost extension of the headlands. Where there is no pronounced headland, the line shall be drawn to the point where the line of mean lower low water on the shore is intersected by the bisector of the angle formed where a line projecting the general trend of the line of mean lower low water along the open coast meets a line projecting the general trend of the line of mean lower low water along the tributary waterway.
19
6. Roadsteads, waters between islands, and waters between islands and the mainland are not per se inland waters.
20
7. The inland waters of the Port of San Pedro are those enclosed by the breakwater and by straight lines across openings in the breakwater; but the limits of the port, east of the eastern end of the breakwater, are not determined by this decree.
21
8. The inland waters of Crescent City Harbor are those enclosed within the breakwaters and a straight line from the outer end of the west breakwater to the southern extremity of Whaler Island.
22
9. The inland waters of Monterey Bay are those enclosed by a straight line between Point Pinos and Point Santa Cruz.
23
10. The description of the inland waters of the Port of San Pedro, Crescent City Harbor, and Monterey Bay, as set forth in paragraphs 7, 8, and 9 hereof, does not imply that the three-mile limit is to be measured from the seaward limits of those inland waters in places where the three-mile limit is placed farther seaward by the application of any other provision of this decree.
24
11. The following are not historic inland waters, and do not comprise inland waters except to the extent that they may be enclosed by lines as hereinabove described for the enclosure of inland waters other than historic bays:
25
(a) Waters between the Santa Barbara or Channel Islands, or between those islands and the mainland;
26
(b) Waters adjacent to the coast between Point Conception and Point hueneme;
27
(c) Waters adjacent to the coast between Point Fermin and Point Lasuen (identified as the bluffs at the end of the Las Bolsas Ridge at Huntington Beach);
28
(d) Waters adjacent to the coast between Point Lasuen and the western headland of Newport Bay;
29
(e) Santa Monica Bay;
30
(f) Crescent City Bay;
31
(g) San Luis Obispo Bay.
32
12. With the exceptions provided by § 5 of the Submerged Lands Act, 67 Stat. 32, 43 U.S.C. § 1313 (1964 ed.), and subject to the powers reserved to the United States by § 3(d) and § 6 of said Act, 67 Stat. 31, 32, 43 U.S.C. §§ 1311(d) and 1314 (1964 ed.), the State of California is entitled, as against the United States, to the title to and ownership of the tidelands along its coast (defined as the shore of the mainland and of islands, between the line of mean high water and the line of mean lower low water) and the submerged lands, minerals, other natural resources and improvements underlying the inland waters and the waters of the Pacific Ocean within three geographical miles seaward from the coast line and bounded on the north and south by the northern and southern boundaries of the State of California, including the right and power to manage, administer, lease, develop and use the said lands and natural resources all in accordance with applicable State law. The United States is not entitled, as against the State of California, to any right, title or interest in or to said lands, improvements and natural resources except as provided by § 5 of the Submerged Lands Act.
33
13. The parties shall submit to the Court for its approval any stipulation or stipulations that they may enter into, identifying with greater particularity all or any part of the boundary line, as defined by this decree, between the submerged lands of the United States and the submerged lands of the State of California, or identifying any of the areas reserved to the United States by § 5 of the Submerged Lands Act. As to any portion of such boundary line or of any areas claimed to have been reserved under § 5 of the Submerged Lands Act as to which the parties may be unable to agree, either party may apply to the Court at any time for entry of a further supplemental decree.
34
14. 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 this decree or to effectuate the rights of the parties in the premises.
35
THE CHIEF JUSTICE, Mr. Justice CLARK, and Mr. Justice FORTAS took no part in the formulation of this decree.
| 910
|
382 U.S. 423
86 S.Ct. 594
15 L.Ed.2d 501
BROTHERHOOD OF LOCOMOTIVE ENGINEERS et al., Appellants,v.CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD CO. et al. Robert N. HARDIN, Prosecuting Attorney for the Seventh Judicial Circuit ofArkansas, etc., et al., Appellants, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD CO. et al.
Nos. 69, 71.
Argued Dec. 8 and 9, 1965.
Decided Jan. 31, 1966.
[Syllabus from pages 423-424 intentionally omitted]
Jack L. Lessenberry and James E. Youngdahl, Little Rock, Ark., for appellants.
Robert V. Light, Little Rock, Ark., and Dennis Lyons, Washington, D.C., for appellees.
Opinion of the Court by Mr. Justice BLACK, announced by Mr. Chief Justice WARREN.
1
Appellees, a group of interstate railroads operating in Arkansas, brought this action in a United States District Court asking that court to declare two Arkansas statutes unconstitutional and to enjoin two Arkansas Prosecuting Attorneys, appellants here, from enforcing or attempting to enforce the two state statutes. The railroad brotherhoods, also appellants here, were allowed to intervene in the District Court in order to defend the validity of the state statutes. One of those statutes, enacted in 1907, makes it an offense for a railroad operating a line of more than 50 miles to haul freight trains consisting of more than 25 cars without having a train crew consisting of not 'less than an engineer, fireman, a conductor and three brakemen * * *.'1 The second statute challenged by the railroads, enacted in 1913, makes it an offense for any railroad operating with lines 100 miles or more
[Amicus Curiae intentionally omitted] in length to engage in switching activities in cities of designated populations, with 'less than one (1) engineer, a fireman, a foreman and three (3) helpers. * * *'2 The complaint charged that, as applied to the plaintiff railroads, both statutes (1) operate in an 'arbitrary, capricious, discriminatory and unreasonable' manner in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment; (2) unduly interfere with, burden and needlessly increase the cost of interstate commerce in violation of the Commerce Clause, Art. I, § 8, cl. 3, of the Constitution, and contrary to the National Transportation Policy expressed in the Interstate Commerce Act; (3) discriminate against interstate commerce in favor of local or intrastate commerce; and (4) by seeking to regulate and control the number of persons working on interstate railroad locomotives and cars invade a field of legislation preempted by the Federal Government primarily through federal enactment of Public Law 88 108 passed by Congress in 1963.3 This law was passed to avert a nationwide railroad strike threatened by a labor dispute between the national railroads and the brotherhoods over the number of employees that should be used on trains.
2
In their complaint the railroads admitted that this Court had on three separate occasions, in 1911,4 in 1916,5 and again in 1931,6 sustained the constitutionality of both state statutes against the same Fourteenth Amendment and Commerce Clause challenges made in the present action. The complaint alleged, however, that improvements have now been so great in locomotives, freight cars, couplers, brakes, trackage, roadbeds, and operating methods that the facts on which the prior holdings rested no longer exist. The brotherhoods and the two defendant Prosecuting Attorneys answered the complaint asserting the constitutionality of the Acts and denying that there had been a change in conditions so significant as to justify any departure from this Court's prior decisions. The brotherhoods' answer alleged that modern developments had actually multiplied the dangers of railroading thus making the Arkansas statutes more necessary than ever. The pleadings therefore, at least to some extent, presented factual issues calling for the introduction and determination of evidence under prior holdings of this Court. See, e.g., Southern Pacific Co. v. State of Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915. At this stage of the trial, however, the railroads, claiming there was no substantial dispute in the evidence with reference to any relevant issues, filed a motion for summary judgment under Rule 56, Fed.Rules Civ.Proc. alleging that: (1) Both state statutes are 'pre-empted by federal legislation in conflict therewith, to-wit: Public Law 88—108 and the award of Arbitration Board No. 282 pursuant thereto; the Railway Labor Act * * *; and the Interstate Commerce Act * * * particularly the preamble thereto'; (2) the state statutes constitute discriminatory legislation against interstate commerce in violation of the Commerce Clause; and (3) the state statutes deny the railroads equal protection of the laws in violation of the Fourteenth Amendment. Without hearing any evidence the three-judge court convened to consider the case sustained the railroads' motion for summary judgment, holding, one judge dissenting, that the Arkansas statutes are 'in substantial conflict with Public Law 88—108 * * * and the proceedings thereunder, and are therefore unenforceable against the plaintiffs * * *.' 239 F.Supp. 1, 29. The District Court did not purport to rule on the other questions presented in the motion for summary judgment and the complaint. We noted probable jurisdiction, 381 U.S. 949, 85 S.Ct. 1802, 14 L.Ed.2d 723.
3
A few weeks ago this Court held in Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, that an allegation that a state statute is pre-empted by a federal statute does not allege the unconstitutionality of the state statute so as to call for the convening of a three-judge court under 28 U.S.C. § 2281 (1964 ed.). Thus, under Swift, the pre-emption issue in this case standing alone would not have justified a three-judge court, and hence would not have justified direct appeal to us under 28 U.S.C. § 1253 (1964 ed.). The complaint here, however, also challenged the Arkansas statutes as being in violation of the Commerce, Due Process, and Equal Protection Clauses. In briefs submitted to us after oral argument the appellants have argued that all these constitutional challenges are so insubstantial as a matter of law that they are insufficient to make this an appropriate case for a three-judge court. We cannot accept that argument. Whatever the ultimate holdings on the questions may be we cannot dismiss them as insubstantial on their face. Nor does the fact that the pre-emption issue alone was passed on by the District Court keep this from being a three-judge case. Had all the issues been tried by the District Court and had that court enjoined enforcement of the state laws on preemption alone, we would have had jurisdiction of a direct appeal to us under 28 U.S.C. § 1253 (1964 ed.). Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568. The same is true here where the state laws were enjoined on the basis of preemption but the other constitutional challenges were left undecided. Thus we have jurisdiction and so proceed to the merits.
I.
4
We first consider the question of pre-emption. Congress unquestionably has power under the Commerce Clause to regulate the number of employees who shall be used to man trains used in interstate commerce. In the absence of congressional legislation on that subject, however, the States have extensive power of their own to regulate in this field, particularly to protect the safety of railroad employees and the public. This Court said in Missouri Pac. R. Co. v. Norwood, one of the previous decisions upholding the constitutionality of these Arkansas statutes, that:
5
'In the absence of a clearly expressed purpose so to do Congress will not be held to have intended to prevent the exertion of the police power of the states for the regulation of the number of men to be employed in such crews.' 283 U.S., at 256, 51 S.Ct., at 462.
6
See also the same case, 290 U.S. 600, 54 S.Ct. 227.
7
In view of Norwood and the two preceding cases, all of which sustained the constitutionality of the Arkansas statutes over charges of federal preemption, the question presented to this Court is whether in adding the 1963 compulsory arbitration Act to previous federal legislation, Congress intended to pre-empt this field and supersede state legislation like that of Arkansas, or, stated another way, whether application of the Arkansas law 'would operate to frustrate the purpose of the (1963) federal legislation like that of Arkansas, or, statfeurs and Helpers Union v. Morton, 377 U.S. 252, 258, 84 S.Ct. 1253, 1257, 12 L.Ed.2d 280.
8
Since the railroad unions first gained strength in this country the problem of manning trains has presented an issue of constant dispute between the railroads and the unions. Some States, such as Arkansas, believing perhaps that many railroads might not voluntarily assume the expense necessary to hire enough workers for their trains to make the operations as safe as they could and should be, passed laws providing for the minimum size of the train crews. Where these laws were not in effect the question of the size of the crews was settled by collective bargaining, though not without great difficulty. It was this sensitive and touchy problem which brought on the explosive collective bargaining impasse that triggered the 1963 Act which the railroads now contend was intended to permanently supersede the 1907 and 1913 Arkansas statutes. Such a permanent supersession would, of course, amount to an outright repeal of the statutes by Congress.
9
The particular dispute which eventually led to the enactment of Public Law 88—108 began in 1959 when the Nation's major railroads notified the brotherhoods that they considered it to be the right of management to have the unrestricted discretion to decide how many employees should be used to man trains, and that they did not intend to submit that subject to collective bargaining in the future. The brotherhoods protested, serving counter-proposals on the railroads. As a result the representatives of each side met to try to negotiate a new collective bargaining agreement. On the question of the size of the crews the negotiators stuck and would not budge. The railroad negotiators insisted that changed conditions, particularly the substitution of diesel and electrically propelled engines for steam engines, had made firemen completely unnecessary employees. They continued to insist that the railroads should be left free to decide for themselves when and how many firemen should be used, if any at all. Throughout all negotiations, and up to now, the brotherhoods have insisted that a fireman is needed even on a diesel engine, particularly to aid the engineer as a lookout for safety purposes, and to help make needed repairs and adjustments while the train is moving, should the engine for any reason fail to function. Agreement on this question proving impossible in the 1959 negotiations, President Eisenhower, acting at the request of both sides, appointed a Presidential Commission to try to adjust the dispute. After long investigation and consideration the Commission reported. Its report was unsatisfactory to the brotherhoods, not wholly satisfactory to the railroads, and did not result in any settlement. The dispute dragged on. Another report was made by the President's Advisory Committee on Labor-Management Policy but it also failed to bring about an agreement.
10
All efforts at agreement having failed, President Kennedy, on July 22, 1963, reported to Congress that on July 29 the railroads 'can be expected to initiate work rules changes. * * * And the brotherhoods thereupon can be expected to strike.' This Nation,' he said, 'stands on the brink of a nationwide rail strike that would, in very short order, create widespread economic chaos and distress.' Pointing out the disastrous consequences that might occur to the country should a strike take place, the President recommended legislation to provide 'for an interim remedy while awaiting the results of further bargaining by the parties.' He recommended that 'for a 2-year period during which both the parties and the public can better inform themselves on this problem * * * interim work rules changes proposed by either party to which both parties cannot agree should be submitted for approval, disapproval or modification to the Interstate Commerce Commission in accordance with the procedures and provisions of section 5 of the Interstate Commerce Act * * *.' President Kennedy repeatedly emphasized to the Congress his hope that the dispute could eventually be settled by collective bargaining. He stated his belief that advances in railroad technology had made it necessary to reduce the railroad labor force, but he insisted that the public should help bear the burden of this reduction in order that it not fall entirely on those employees who would lose their jobs. He warned the Congress that it was highly necessary "for workers to enjoy reasonable protection against the harsh effects of too sudden change." In his message the President expressed no desire to have Congress pass a law that would finally and completely dispose of the problem of the number of men who should man the crew of a train, but instead warned that 'It would be wholly inappropriate to make general and permanent changes in our labor relations statutes on this basis' and that any "revolutionary changes even for the better carry a high price in disruption * * * (that) might exceed the value of the improvements." Thus the President's message did not in any way indicate a purpose on his part to disturb the existing pattern of full-crew laws by supersession of them, either temporarily or permanently.
11
Congress enacted the bill proposed by the President with one significant change. He had recommended that a binding determination of the issues not resolved by collective bargaining be made by the Interstate Commerce Commission. At least one brotherhood witness testified before the Senate Commerce Committee to an apprehension that the Interstate Commerce Commission if given the power requested would declare States' full-crew laws superseded by orders of the Commission.7 Subsequent to this both the House and Senate Committees dropped a section of the proposed bill that would have vested power in the Commission to make binding settlements.8 Instead of that section the Act passed by Congress provided for establishment of an arbitration board to consist of seven members, two appointed by the railroads, two by the unions and three to be appointed by the President should the four members named by the railroads and unions fail to agree among themselves on an additional three. The arbitration board was given power to resolve the dispute over the firemen and full-crew questions. Their award was to be a complete and final disposition of these issues for a period not exceeding two years from the date the awards would take effect. Awards were made by such a board which the railroads now claim call for supersession of the state laws. We hold that neither the Act itself nor the awards made under it can have such an effect.
12
The text of the Act and the awards made under it contain no section specifically pre-empting the States' full-crew laws nor is there any specific saving clause indicating lack of intent to pre-empt them. Appellees argue, however, that the terms of the Act and the awards are inconsistent with the operation of the state laws and thus the laws are no longer valid. But Congress wanted to do as little as possible in solving the dispute which was before it, and we note that this dispute was not over the size of crews in States which had full-crew laws, for there the size of crews was regulated by statute and not by collective bargaining agreements. The railroads made this very point before the Senate Commerce Committee when a spokesman for three railroads, in commenting on the few jobs that would be lost if the brotherhoods accepted the railroads' proposal, said '25.9 percent of the firemen positions in freight and yard service must be maintained because of the provisions of so-called full-crew laws of the States of (listing 13 States including Arkansas).'9 It appears, therefore, that Congress did not need to pre-empt the state laws in order to eliminate this collective bargaining impasse, and further examination of the legislative history of Public Law 88—108 confirms our view that Congress had no intention of superseding the state full-crew laws by passage of that Act.
13
The President's proposal was interpreted and explained to the House Committee on Interstate and Foreign Commerce by the Secretary of Labor. On the subject of state full-crew laws he told that Committee:
14
'I call attention to such statements as those of the Missouri Railroad Company v. Norwood, the Supreme Court case in 1930 in which the Court said, 'In the absence of a clearly stated purpose so to do Congress will not be held to have intended to prevent the assertion of the police power of the States for the regulation of the number of men to be employed in such crews.' It would be the intention reflected here that the issuance of an interim ruling, subject to termination in a time period or at the agreement of the parties, would not have the effect of affecting any State full crew law.'10
15
The Chairman of the House Committee on several occasions emphatically stated both in the hearings and on the House floor that the bill was not intended, either as proposed or as passed, to supersede state laws. On one occasion he said:
16
'This issue was raised in the course of the hearings before the committee. Questions were asked of the various people representing management and the labor industry and witnesses representing the labor brotherhoods, the employees' representatives, and the Secretary of Labor. It was made rather clear in the course of the hearings that it would in no way affect the provisions of State laws. The committee in executive session discussed the question and concluded that it was not the intent of the committee in any way to affect State laws. On page 14 of the committee report we included, in order that this history might be made, this language: 'The committee does not intend that any award made under this section may supersede or modify any State law relating to the manning of trains."11
17
The Chairman of the Committee then went on to tell the House, after referring to this Court's holding in Missouri Pac. R. Co. v. Norwood,
18
'Therefore, since this bill does not mention the subject of State laws, and since, as the committee report shows, we do not intend to affect these laws, I am confident they are not affected by the bill.
19
'I think that is about as clear as we can make it.'
20
Many statements like those quoted above point to the fact that both the Senate and the House members did not intend by enacting Public Law 88—108 to supersede state laws. This sentiment was voiced by witnesses representing both labor and railroads as well as by public officials of the Nation. The railroads seek to offset these carefully considered expressions by reference to a single incident. On one of the occasions when Representative Harris, Chairman of the House Committee reporting the bill, had stated that the Act would not supersede the state law, Representative Smith of Virginia, Chairman of the Rules Committee of the House, interrupted Representative Harris to make the statement set out below.12 This single statement by Congressman Smith was hardly enough to cast doubt in the minds of the members of the House as to the accuracy of the statement made by Congressman Harris, Chairman of the Committee which reported the bill. The substance of Congressman Smith's statement was:
21
'I think the provisions of the Constitution are such and the decisions of the courts are such that there is no way in which a State can overcome the power of the Federal Government under the interstate commerce clause.' This statement was, of course, correct but it has little relevance as to whether the bill was intended to exercise the power of the Federal Government to supersede state laws.
22
In the face of the clear congressional history of this Act we could not hold that either the Act itself or the arbitration awards made under it supersede the Arkansas state laws.
II.
23
The railroads contend that the District Court would have been justified in holding the two Arkansas Acts unconstitutional on the second ground of their motion for summary judgment which is that the two Acts 'constitute discriminatory legislation against interstate commerce in favor of intrastate commerce.' Aside from the fact that such an argument was apparently rejected in the prior cases upholding the constitutionality of the Arkansas statutes we think it is wholly without merit. The argument is based on the fact that the 1907 state law exempts railroads with less than 50 miles of track and the 1913 law exempts railroads with less than 100 miles of track. None of the State's 17 intrastate railroads have more than 50 miles of track. It turns out that none of them are subject to either of the two state laws while 10 of the 11 interstate railroads are subject to the 1907 Act and eight of them are subject to the 1913 Act. It is impossible for us to say as a matter of law that this difference in treatment by the State, based on the differing mileage of railroads, is without any rational basis as the railroads contend. Certainly some regulations based on different mileage of railroads might be wholly rational, reasonable, and desirable. We cannot say on the record now before us that classification according to the length of mileage in these two statutes constitutes discrimination against interstate commerce in violation of the Commerce Clause or the Equal Protection Clause. See Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 137, 83 S.Ct. 1210, 1214, 10 L.Ed.2d 248.
24
The judgment of the District Court is reversed and the cause is remanded to that court for consideration of the constitutional issues left undecided by its previous judgment. It is so ordered.
25
Judgment reversed and cause remanded with directions.
26
Mr. Justice FORTAS took no part in the consideration or decision of this case.
27
Mr. Justice DOUGLAS, dissenting.
28
We all agree that Congress has ample power to regulate the number of employees used to man railroad trains operating in interstate commerce. Unlike the majority, however, I believe that Congress has exercised that power, and respectfully dissent from the Court's conclusion to the contrary.
29
The bargaining impasse which prompted the passage of Public Law 88—108 (77 Stat. 132) represented, in a sense, only the exposed top of a large iceberg. Lurking beneath the surface of the controversy were the twin problems of automation and technological unemployment. Congress was well aware of the developing conflict between innovation and job security. When President Kennedy sought a legislative solution to the pending crisis in the railroad industry, he reminded Congress that:
30
'* * * this dispute over railroad work rules is part of a much broader national problem. Unemployment, whether created by so-called automation, by a shift of industry to new areas, or by an overall shortage of market demand, is a major social burden.
31
'This problem is particularly but not exclusively acute in the railroad industry. Forty percent fewer employees than were employed at the beginning of this decade now handle substantially the same volume of rail traffic. The rapid replacement of steam locomotives by diesel engines for 97 percent of all freight tonnage has confronted many firemen, who have spent much of their career in this work, with the unpleasant prospect of human obsolescence. * * * The Presidential Commission was established in part, it said, because of the need to close the gap between technology and work.'
32
The Presidential Railroad Commission to which President Kennedy referred was established by President Eisenhower's order in 1960,1 and was charged with investigating the dispute which arose out of the railroads' proposed elimination of firemen on diesel engines, and the reduction of the number of other crew members, in freight and yard service. After an extensive study, the Commission issued its report containing detailed findings on all aspects of the dispute. The Commission's recommendations included the elimination of firemen on diesels in freight service and the reduction of the number of brakemen and switchmen. It recommended financial benefits for those separated from service.
33
This Presidential Railroad Commission was well aware that, however, desirable might be a nationwide solution to the problem, the continued existence of state 'full crew' laws made this impossible:
34
'(M)ost of the legislation of this kind was enacted prior to 1920. These laws apparently fail to envision modern railroad operations. We feel that our recommendations with respect to this issue should have nationwide application. We recognize that there will be difficulty in applying the rule recommended by us in States where 'full crew' laws have been enacted. How the restriction of those laws may be lifted, however, is a matter which goes beyond our charge.'2
35
Then came Public Law 88—108, § 3 of which empowers the Board to 'resolve the matters on which the parties were not in agreement' and to make a binding award which 'shall constitute a complete and final disposition of the * * * issues.' Section 7(a) lays down standards for the Board:
36
(1) '(T)he effect of the proposed award upon adequate and safe transportation service';
37
(2) '(T)he effect of the proposed award upon * * * the interests of the carrier and employees affected'; and
38
(3) '(D)ue consideration to the narrowing of the areas of disagreement which has been accomplished in bargaining and mediation.'
39
Today the Court concludes that Congress sought only to shear off the visible portion of the iceberg, leaving the continued existence of state 'full crew' laws as a bar to the resolution of these matters.
40
That the state statutes in question conflict with the federal arbitration awards is plain. Congress directed the National Arbitration Board to resolve the dispute as to the necessity of firemen on diesel freights and as to the minimum size of train and switching crews. The Board has declared that, in general, firemen are not to be required. And through local boards, the number of brakemen, switchmen, and helpers to be used in various operations is fixed.3 These state laws, however, compel the use of firemen in virtually all interstate operations, and fix the size of train crews at levels usually exceeding those fixed by the local awards.4 States lacking such laws are, in light of the Court's decision, free to enact them and thereby, in effect, imperil Public Law 88—108 and the arbitration awards made under it. This Court has held that a state statute must fall in the face of an inconsistent provision in a collective bargaining agreement negotiated pursuant to the command of federal law, Local 24 of Intern. Broth. of Teamsters, Chauffuers, Warehousemen and Helpers of America, AFL—CIO Union v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312, even though Congress did not prescribe the particular terms of the agreement. And see State of California v. Taylor, 353 U.S. 553, 77 S.Ct. 1037, 1 L.Ed.2d 1034. We have here something more than collective bargaining agreements. These arbitration awards are binding directives, resolving a labor-management dispute, issued under the direction and authority of Congress.
41
The problems submitted to the Arbitration Board concerned primarily two central issues: (1) continued use of firemen on diesel-electric or electric locomotives which do not use steam power, and on which the work of firing boilers need not be performed; (2) the makeup or 'consist' of train service crews in road and yard. These are matters recognized by the Board as governed in some States 'by statute or administrative decision.' Indeed, a resolution of them in many situations might involve overriding or disregarding conflicting local regulations. Any realistic view of the scope and nature of the impasse the parties had reached would necessarily endow the Board with power to resolve conflicts between what it deemed to be the desirable national policy on the one hand and conflicting state laws on the other.
42
The issues were far-reaching; they included questions in the realm of economics, of railroad technology, and of sociology. This was a controversy that years of collective bargaining, study, informed analysis, persuasion, and debate had not been able to resolve. The Board's seven members5 held 29 days of hearings, received the testimony of more than 40 witnesses recorded in nearly 5,000 pages of transcript, examined more than 200 documentary exhibits, and made inspection trips to four railroad yards in the Chicago area. Its award6 was concurred in by the two carrier members and dissented from by the labor members.7 The opinion of the neutral members of the Board details the conclusions the panel reached. It states, as to the question of firemen, that:
43
'although we think it clear that firemen are presently performing useful services, we agree with the (Presidential Railroad) Commission 'that firemen-helpers are not so essential for the safe and efficient operation of road freight and yard diesels that there should continue to be either a national rule or local rules requiring their assignment on all such diesels."8
44
The Board found, in respect to the other members of the train crew, that 'the consist of crews necessary to assure safety and to prevent undue workloads must be determined primarily by local conditions. A national prescription of crew size would be wholly unrealistic.' The Board established procedures for local arbitration of these issues. And, the Board added,
45
'It is clear from the evidence before us that the myriad of local arrangements has led to numerous inconsistencies in the manning of crews. It is equally clear that some of the existing rules, originating as they did more than a half-century ago, are anachronistic and do not reflect the present state of railroad technology and operating conditions.' The Board's concern with safety is apparent from a reading of the neutral members' opinion. As that opinion puts it:
46
'It may be fairly stated that concern with safety has pervaded this entire proceeding. It was apparent in the presentations and arguments by all the organizations and by the carriers, and was further emphasized by the inquiries which members of the Board directed to witnesses and counsel.'
47
We are in no position, of course, to pass judgment on the work of the Arbitration Board, nor is it our function to do so. But it is apparent that this panel had the power and the tools to resolve the controversy. Its award constitutes a national solution to the question of firemen and establishes the procedures, already utilized in respect to these railroads operating in Arkansas, for resolution of the crew consist issue.
48
I conclude that the effect of Public Law 88—108 and the awards made pursuant to it was to supersede state 'full crew' legislation. Of course, were the intent of Congress shown to be otherwise, that would be dispositive. Unlike the majority, I do not think that the bits and pieces of legislative debate cited in the Court's opinion can be regarded as a controlling statement of legislative intent. If anything, the legislative history of Public Law 88—108 suggests that Congress refused to accept the suggestion that, if it wished to avoid the supersession of state 'full crew' laws, it should expressly say so.
49
The majority points to statements made by Congressman Harris, Chairman of the House Committee on Interstate and Foreign Commerce, to the effect that the bill would have no effect on state laws. But when he stated his conclusion on the floor of the House, he was immediately challenged by Congressman Smith, Chairman of the Rules Committee. Under the circumstances, it seems inappropriate to regard Congressman Harris' views as wholly authoritative. The testimony of Secretary Wirtz, also referred to by the Court, was followed by a legal memorandum submitted by the Secretary. This memorandum suggests that the Interstate Commerce Commission would, under the proposed legislation, have the power to supersede state legislation, and that to avoid this the Commission might expressly provide to the contrary in its orders.9
50
The absence of an express disclaimer of intent to supersede state laws was called to the attention of Congress. Testifying before the House Committee, Secretary Wirtz did so.10 The General Counsel of the Interstate Commerce Commission told the Committee that if 'the Congress wants to be doubly certain, for example, that no such legal consequence follows it could be done' by expressly stating that no supersession is intended.11 To this the Chairman responded:
51
'I appreciate your very frank response, because I think it has sort of been left up in the air as to what the courts might do. There has been expression as to what is intended and what some might have thought but I think we also have to provide clarity wherever it is necessary in order that the Commission may have guidance in its effort to carry out the responsibility should it so be directed.'12
52
The Commission's General Counsel testified to the same effect before the Senate Commerce Committee:
53
'If it were desired to make that absolutely certain, if that is the desire of Congress, it can be done by just a phrase. * * *'13
54
Despite this advice, Congress did not include a 'saving' clause.14
55
Congress was faced, at the time it enacted Public Law 88—108, with more than the threat of a crippling strike. It had before it the recommendations of the Presidential Railroad Commission. It had been told by the President of the seriousness of the problem of technological unemployment arising from automation. Congress responded by establishing a procedure for resolution of the railroad industry's pressing economic problem with ample consideration of the 'safety' issue. It is inconceivable that Congress intended to solve only part of the problem when it directed the Arbitration Board to make a binding award which 'shall constitute a complete and final disposition of the * * * issues.'
56
In sum, I agree with District Court that, 'There is nothing in the Act itself or in the history that indicates that the Congress intended to resolve this problem of national magnitude by legislation that would be effective in only some 30 states that do not regulate crew consists by law or administrative regulation.' 239 F.Supp. 1, 23.
57
Although automation was a prime concern of the President and the Congress, the Court holds that the lawmakers cloaked their concern in such weasellike words as not to reach the roots of the problem. With all respect, I dissent.
1
Ark.Laws 1907, Act. 116, Ark.Stat.Ann. §§ 73—720 through 73—722 (1957).
2
Ark.Act 67 of 1913, Ark.Stat.Ann. §§ 73—726 through 73—729 (1957).
3
77 Stat. 132, 45 U.S.C. following § 157 (1964 ed.).
4
Chicago, R.I. & P.R. Co. v. State of Arkansas, 219 U.S. 453, 31 S.Ct. 275, 55 L.Ed. 290.
5
St. Louis I.M. & S.R. Co. v. State of Arkansas, 240 U.S. 518, 36 S.Ct. 443, 60 L.Ed. 776.
6
Missouri Pac. R. Co. v. Norwood, 283 U.S. 249, 51 S.Ct. 458, 75 L.Ed. 1010; 290 U.S. 600, 54 S.Ct. 227, 78 L.Ed. 527. See also latter case below, D.C., 13 F.Supp. 24.
7
Hearings before Senate Committee on Commerce on S.J.Res. No. 102, 88th Cong., 1st Sess., 629.
8
S.Rep. No. 459, 88th Cong., 1st Sess., 9.
9
Hearings before the Senate Committee on Commerce on S.J.Res. No. 102, 88th Cong., 1st Sess., 707.
10
Hearings before the House Committee on Interstate and Foreign Commerce on H.J.Res. No. 565, 88th Cong., 1st Sess., 78.
11
109 Cong.Rec. 16122 (1963). See also the Committee Report referred to by Chairman Harris, H.R.Rep. No. 713, 88th Cong., 1st Sess., 14.
12
'Mr. SMITH of Virginia. Mr. Speaker, the colloquy between the gentleman from California (Mr. SISK), and the chairman of the Committee on Interstate and Foreign Commerce, the gentleman from Arkansas (Mr. HARRIS), raises a question that has not previously been discussed on the floor of the House. It was discussed in the
committee yesterday before the Committee on Rules. I do not like to remain silent in view of the statement that a State law can overcome the constitutional provision which gives exclusive jurisdiction to the Federal Government in matters of interstate commerce. I do not know what precedents may have been found with reference to this question, but of course, in the matter of purely intrastate commerce under our Constitution the State, of course, would have authority, but when it comes to dealing with interstate commerce I think the provisions of the Constitution are such and the decisions of the courts are such that there is no way in which a State can overcome the power of the Federal Government under the interstate commerce clause.
'I simply wanted to make my own position clear with reference to that question, for whatever it may be worth.
'Mr. EDMONDSON. Mr. Speaker, will the gentleman yield?
'Mr. SMITH of Virginia. I yield to the gentleman from Oklahoma.
'Mr. EDMONDSON. I thank the distinguished chairman of the Committee on Rules for yielding to me at this point. Would this not mean in effect that about the only kind of train operation in which State laws would prevail would be in the switching of cars involving switch engine operations?
'Mr. SMITH of Virginia. Of course, it is just a question of what is or what constitutes interstate commerce. Now, as you know, the decisions of the courts and the actions of the Congress have gone a long way in putting almost everything under interstate commerce.' 109 Cong.Rec. 16122 (1963).
1
Executive Order No. 10891, Nov. 1, 1960, U.S.Code Congressional and Administrative News 1960, p. 1693.
2
Report of the Presidential Railroad Commission (1962), at p. 64.
3
The national award provided for the elimination of 90% of the firemen's jobs in each local seniority district, except that firemen would in all cases be required on yard locomotives lacking a 'deadman' control. In addition, jobs had to be made available to firemen retained in service pursuant to the employment protective provisions of the award which, in general, provided that any fireman with 10 years' seniority had to be retained either as a fireman or an engineer. Firemen with between two and 10 years' seniority had to be retained in engine service or offered a comparable position.
As for brakemen and switchmen, the award established procedures for binding local arbitration whereby the number of other crew members might be fixed on a local basis, subject to certain employment protective conditions established by the national Board. The applicable local awards for Arkansas railroad operations provide for two brakemen on main-line operations and one brakeman on branchline operations. In switching operations, the local awards provide, with certain exceptions, for one helper.
4
Thus Arkansas law requires a fireman on every train, with certain exceptions, while the arbitration award permits abolition of 90% of the firemen's positions. Arkansas requires three brakemen while the arbitration award requires no more than two. Similar conflicts appear in respect to the yard operations.
5
The Chairman of the Board was Ralph T. Seward. The other two neutral members were Benjamin Aaron and James J. Healy. Representing the carriers were Guy W. Knight and J. E. Wolfe. Representing the labor organizations were H. E. Gilbert and R. H. McDonald.
6
See note 3, supra.
7
The carrier members, while 'disappointed with certain of (the) provisions' of the award, noted the 'care and diligence' which the Board had displayed in reaching its decision. The labor members contended that the Board had not been true to the congressional command and that its conclusions were erroneous.
8
The opinion states that the 'lookout function presently assigned to the fireman is also performed by the head brakeman in road freight service and by all members of the train crew in yard service. In the great majority of cases the lack of a fireman to perform the related functions of lookout and signal passing will not endanger safety or impair efficiency because these functions can be, as they are now, performed by other crew members.'
The mechanical duties performed by firemen, the Board found, could in large part 'be performed by the engineer while the locomotive is in service and by shop maintenance personnel at other times.'
Finally, the Board found that relief of the engineer by the fireman is of critical importance only in the event of sudden incapacitation. 'In road freight service the usual presence of the head brakeman in the cab obviates the need for a fireman in such an emergency.'
9
See Hearings before House Committee on Interstate and Foreign Commerce on H.J.Res. No. 565, 88th Cong., 1st Sess., 112 113. The reference to the Interstate Commerce Commission was made, of course, because at that stage Congress was considering the legislation in the form proposed by the President, which contemplated resolution of the dispute by the Commission.
The report of the Committee reflects the view of its Chairman and states that state full-crew laws would not be superseded. H.R.Rep. No. 713, 88th Cong., 1st Sess., 14. It bears repeating that this position was challenged by Congressman Smith on the floor of the House. And it is also significant that the report of the Senate Commerce Committee (S.Rep. No. 459, 88th Cong., 1st Sess.) makes no mention of the pre-emption question, despite references to it in the Committee's hearings. See note 13 and accompanying text and note 14, infra.
10
See Hearings before House Committee on Interstate and Foreign Commerce on H.J.Res. 565, 88th Cong., 1st Sess., 111.
11
Id., at p. 614.
12
Ibid.
13
Hearings before Senate Committee on Commerce on S.J.Res. No. 102, 88th Cong., 1st Sess., 401.
14
The possibility that the bill would result in the supersession of state laws was noted at other points in the Senate Commerce Committee hearings. A representative of the Brotherhood of Locomotive Engineers testified:
'Mr. DAVIDSON. Mr. Chairman, I was just handed a note that I would like to read into the record, if I may.
'Senator PASTORE. All right.
'Mr. DAVIDSON. General Counsel for the ICC, at the House hearing today, stated if this bill passes, the Commission would have jurisdiction over States' minimum crew bills.
'Senator PASTORE. I don't want to pass any judgment on that. You have read it into the record. I will check that.' Id., at 478.
The General Counsel of the Railway Labor Executives' Association testified: 'I certainly visualize that as a bare minimum the carriers will contend that the effect (of) orders of the Commission authorizing decreases in crew consist—either of enginecrew or traincrew—would operate to overrule full crew laws in those States that have them. Perhaps that explains the alacrity with which the carriers embraced the President's recommendation and endorsed it.' Id. at 629.
As stated by the District Court: 'A complete review of the legislative history will reveal that some members of Congress thought that the legislation would pre-empt state crew consist laws, and others thought it would not. It is perfectly clear that the Committees in both Houses had it brought effectively to their attention that the legislation might have a pre-empting effect, and if such pre-emption was not the desire and intention of the Congress, it should so expressly state in the bill. There was no such expression although the bill was amended in many other respects after the hearings before both Committees had been concluded.' 239 F.Supp., pp. 22—23.
| 89
|
383 U.S. 53
86 S.Ct. 657
15 L.Ed.2d 582
William C. LINN, Petitioner,v.UNITED PLANT GUARD WORKERS OF AMERICA, LOCAL 114, et al.
No. 45.
Argued Nov. 18, 1965.
Decided Feb. 21, 1966.
[Syllabus from pages 53-54 intentionally omitted]
Donald F. Welday, Detroit, Mich., for petitioner.
Sol. Gen. Thurgood Marshall for the United States, as amicus curiae, by special leave of Court.
Winston L. Livingston, Detroit, Mich., for respondents.
Mr. Justice CLARK delivered the opinion of the Court.
1
The case before us presents the question whether, and to what extent, the National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C. § 141 et seq. (1964 ed.), bars the maintenance of a civil action for libel instituted under state law by an official of an employer subject to the Act, seeking damages for defamatory statements published during a union organizing campaign by the union and its officers. The District Court dismissed the complaint on the ground that the National Labor Relations Board had exclusive jurisdiction over the subject matter. It held that such conduct 'would arguably constitute an unfair labor practice under Section 8(b)' of the Act and that San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), compelled a dismissal on preemption grounds. The Court of Appeals affirmed, 337 F.2d 68, assuming without deciding that the statements in question were 'false, malicious, clearly libelous and damaging to plaintiff, Linn, albeit they were relevant to the union's campaign.' At p. 69. We granted certiorari, 381 U.S. 923, 85 S.Ct. 1558, 14 L.Ed.2d 682. We conclude that where either party to a labor dispute circulates false and defamatory statements during a union organizing campaign, the court does have jurisdiction to apply state remedies if the complainant pleads and proves that the statements were made with malice and injured him. The judgment is, therefore, reversed.
I.
2
Petitioner Linn, an assistant general manager of Pinkerton's National Detective Agency, Inc., filed this suit against the respondent union, two of its officers and a Pinkerton employee, Leo J. Doyle. The complaint alleged that, during a campaign to organize Pinkerton's employees in Detroit, the respondents had circulated among the employees leaflets which stated inter alia:
3
'(7) Now we find out that Pinkerton's has had a large volume of work in Saginaw they have had it for years.
4
'United Plant Guard Workers now has evidence
5
'A. That Pinkerton has 10 jobs in Saginaw, Michigan.
6
'B. Employing 52 men.
7
'C. Some of these jobs are 10 yrs. old!
8
'(8) Make you feel kind sick & foolish.
9
'(9) The men in Saginaw were deprived of their right to vote in three N.L.R.B. elections. Their names were not summitted (sic). These guards were voted into the Union in 1959! These Pinkerton guards were robbed of pay increases. The Pinkerton manegers (sic) were lying to us—all the time the contract was in effect. No doubt the Saginaw men will file criminal charges. Somebody may go to Jail!'
10
The complaint further alleged that Linn was one of the managers referred to in the leaflet, and that the statements in the leaflet were 'wholly false, defamatory and untrue' as respondents well knew. It did not allege any actual or special damage but prayed for the recovery of $1,000,000 on the ground that the accusations were libelous per se. Federal jurisdiction was based on diversity of citizenship.
11
All respondents, save Doyle, moved to dismiss, asserting that the subject matter was within the exclusive jurisdiction of the Board. The record indicates that prior to the institution of this action Pinkerton had filed unfair labor practice charges with the Regional Director of the Board, alleging that the distribution of the leaflets, as well as other written material, had restrained and coerced Pinkerton's employees in the exercise of their § 7 rights, in violation of § 8(b)(1)(A) of the Act. The Regional Director refused to issue a complaint. Finding that the leaflets were circulated by Doyle, who was 'not an officer or member of the charged union, nor was there any evidence that he was acting as an agent of such union,' he concluded that the union was not responsible for the distribution of the leaflets and that the charge was, therefore, 'wholly without basis.' This ruling was sustained by the General Counsel of the Board some two months after this suit was filed.
12
In an unpublished opinion the District Judge dismissed the complaint holding, as we have already noted, that even if the union were responsible for distributing the material the case was controlled by Garmon, supra. The Court of Appeals affirmed, limiting its holding 'to a suit for libelous statements growing out of and relevant to a union's campaign to organize the employees of an employer subject to the National Labor Relations Act.' At 72.
II.
13
The question before us has been a recurring one in both state and federal tribunals,1 involving the extent to which the National Labor Relations Act, as amended, supersedes state law with respect to libels published during labor disputes. Its resolution entails accommodation of the federal interest in uniform regulation of labor relations with the traditional concern and responsibility of the State to protect its citizens against defamatory attacks. The problem is aggravated by the fact that the law in many States presumes damages from the publication of certain statements characterized as actionable per se.2 Labor disputes are ordinarily heated affairs; the language that is commonplace there might well be deemed actionable per se in some state jurisdictions. Indeed, representation campaigns are frequently characterized by bitter and extreme charges, countercharges, unfounded rumors, vituperations, personal accusations, misrepresentations and distortions. Both labor and management often speak bluntly and recklessly, embellishing their respective positions with imprecatory language. Cafeteria Employees Union, etc. v. Angelos, 320 U.S. 293, 295, 64 S.Ct. 126, 127, 88 L.Ed. 58 (1943). It is therefore necessary to determine whether libel actions in such circumstances might interfere with the national labor policy.
14
Our task is rendered more difficult by the failure of the Congress to furnish precise guidance in either the language of the Act or its legislative history.3 As Mr. Justice Jackson said for a unanimous Court in Garner v. Teamsters, etc., Union, 346 U.S. 485, 488, 74 S.Ct. 161, 164, 98 L.Ed. 228 (1953): 'The * * * Act * * * leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible.'
15
The Court has dealt with specific pre-emption problems arising under the National Labor Relations Act on many occasions, going back as far as Allen-Bradley Local No. 1111, etc. v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154 (1942). However, in framing the pre-emption question before us we need look primarily to San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). There in most meticulous language this Court spelled out the 'extent to which the variegated laws of the several States are displaced by a single, uniform, national rule * * *.' At 241, 79 S.Ct. at 777. The Court emphasized that it was for the Board and the Congress to define the 'precise and closely limited demarcations that can be adequately fashioned only by legislation and administration,' while '(o)ur task is confined to dealing with classes of situations.' At 242, 79 S.Ct. at 778. In this respect, the Court concluded that the States need not yield jurisdiction 'where the activity regulated was a merely peripheral concern of the Labor Management Relations Act * * * (o)r where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.' At 243—244, 79 S.Ct. at 779. In short, as we said in Local 100 of United Ass'n of Journeymen and Apprentices v. Borden, 373 U.S. 690, 693—694, 83 S.Ct. 1423, 1425, 10 L.Ed.2d 638 (1963):
16
'(I)n the absence of an overriding state interest such as that involved in the maintenance of domestic peace, state courts must defer to the exclusive competence of the National Labor Relations Board in cases in which the activity that is the subject matter of the litigation is arguably subject to the protections of § 7 or the prohibitions of § 8 of the National Labor Relations Act. This relinquishment of state jurisdiction * * * is essential 'if the danger of state interference with national policy is to be averted,' * * * and is as necessary in a suit for damages as in a suit seeking equitable relief. Thus the first inquiry, in any case in which a claim of federal preemption is raised, must be whether the conduct called into question may reasonably be asserted to be subject to Labor Board cognizance.'
17
We note that the Board has given frequent consideration to the type of statements circulated during labor controversies, and that it has allowed wide latitude to the competing parties.4 It is clear that the Board does not 'police or censor propaganda used in the elections it conducts, but rather leaves to the good sense of the voters the appraisal of such matters, and to opposing parties the task of correcting inaccurate and untruthful statements.' Stewart-Warner Corp., 102 N.L.R.B. 1153, 1158 (1953). It will set aside an election only where a material fact has been misrepresented in the representation campaign; opportunity for reply has been lacking; and the misrepresentation has had an impact on the free choice of the employees participating in the election. Hollywood Ceramics Co., 140 N.L.R.B. 221, 223—224 (1962); F. H. Snow Canning Co., 119 N.L.R.B. 714, 717—718 (1957). Likewise, in a number of cases, the Board has concluded that epithets such as 'scab,' 'unfair,' and 'liar' are commonplace in these struggles and not so indefensible as to remove them from the protection of § 7, even though the statements are erroneous and defame one of the parties to the dispute. Yet the Board indicated that its decisions would have been different had the statements been uttered with actual malice, 'a deliberate intention to falsify' or 'a malevolent desire to injure.' E.g., Bettcher Mfg. Corp., 76 N.L.R.B. 526 (1948); Atlantic Towing Co., 75 N.L.R.B. 1169, 1170—1173 (1948). In sum, although the Board tolerates intemperate, abusive and inaccurate statements made by the union during attempts to organize employees, it does not interpret the Act as giving either party license to injure the other intentionally by circulating defamatory or insulting material known to be false. See Maryland Drydock Co. v. National Labor Relations Board, 183 F.2d 538 (C.A.4th Cir. 1950). In such case the one issuing such material forfeits his protection under the Act. Walls Manufacturing Co., 137 N.L.R.B. 1317, 1319 (1962).
18
In the light of these considerations it appears that the exercise of state jurisdiction here would be a 'merely peripheral concern of the Labor Management Relations Act,' provided it is limited to redressing libel issued with knowledge of its falsity, or with reckless disregard of whether it was true of false. Moreover, we believe that 'an overriding state interest' in protecting its residents from malicious libels should be recognized in these circumstances. This conclusion is buttressed by our holding in United Construction Workers, etc. v. Laburnum Construction Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025 (1954), where Mr. Justice Burton writing for the Court held:
19
'To the extent * * * that Congress has not prescribed procedure for dealing with the consequences of tortious conduct already committed, there is no ground for concluding that existing criminal penalties or liabilities for tortious conduct have been eliminated. The care we took in the Garner case to demonstrate the existing conflict between state and federal administrative remedies in that case was, itself, a recognition that if no conflict had existed, the state procedure would have survived.' At 665, 74 S.Ct. at 838.
20
In International Union, United Automobile, etc. Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958), we again upheld state jurisdiction to entertain a compensatory and punitive damage action by an employee for malicious interference with his lawful occupation. In each of these cases the 'type of conduct' involved, i.e., 'intimidation and threats of violence,' affected such compelling state interests as to permit the exercise of state jurisdiction. Garmon, supra, 359 U.S. at 248, 79 S.Ct. at 781. We similarly conclude that a State's concern with redressing malicious libel is 'so deeply rooted in local feeling and responsibility' that it fits within the exception specifically carved out by Garmon.
21
We acknowledge that the enactment of § 8(c) manifests a congressional intent to encourage free debate on issues dividing labor and management.5 And, as we stated in another context, cases involving speech are to be considered 'against the background of a profound * * * commitment to the principle that debate * * * should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks.' New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964). Such considerations likewise weigh heavily here; the most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth. But it must be emphasized that malicious libel enjoys no constitutional protection in any context. After all, the labor movement has grown up and must assume ordinary responsibilities. The malicious utterance of defamatory statements in any form cannot be condoned, and unions should adopt procedures calculated to prevent such abuses.
III.
22
Nor should the fact that defamation arises during a labor dispute give the Board exclusive jurisdiction to remedy its consequences. The malicious publication of libelous statements does not in and of itself constitute an unfair labor practice. While the Board might find that an employer or union violated § 8 by deliberately making false statements, or that the issuance of malicious statements during an organizing campaign had such a profound effect on the election as to require that it be set aside, it looks only to the coercive or misleading nature of the statements rather than their defamatory quality. The injury that the statement might cause to an individual's reputation—whether he be an employer or union official—has no relevance to the Board's function. Cf. Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738 (1940). The Board can award no damages, impose no penalty, or give any other relief to the defamed individual.
23
On the contrary, state remedies have been designed to compensate the victim and enable him to vindicate his reputation. The Board's lack of concern with the 'personal' injury caused by malicious libel, together with its inability to provide redress to the maligned party, vitiates the ordinary arguments for pre-emption.6 As stressed by The Chief Justice in his dissenting opinion in Russell, supra:
24
'The unprovoked infliction of personal injuries during a period of labor unrest is neither to be expected nor to be justified, but economic loss inevitably attends work stoppages. Fruthermore, damages for personal injuries may be assessed without regard to the merits of the labor controversy * * *.' At 649, 78 S.Ct. at 941.
25
Judicial condemnation of the alleged attack on Linn's character would reflect no judgment upon the objectives of the union. It would not interfere with the Board's jurisdiction over the merits of Furthermore, damages for personal
26
But it has been insisted that not only would the threat of state libel suits dampen the ardor of labor debate and truncate the free discussion envisioned by the Act, but that such suits might be used as weapons of economic coercion. Moreover, in view of the propensity of juries to award excessive damages for defamation, the availability of libel actions may pose a threat to the stability of labor unions and smaller employers. In order that the recognition of legitimate state interests does not interfere with effective administration of national labor policy the possibility of such consequences must be minimized. We therefore limit the availability of state remedies for libel to those instances in which the complainant can show that the defamatory statements were circulated with malice and caused him damage.
27
The standards enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), are adopted by analogy, rather than under constitutional compulsion. We apply the malice test to effectuate the statutory design with respect to pre-emption. Construing the Act to permit recovery of damages in a state cause of action only for defamatory statements published with knowledge of their falsity or with reckless disregard of whether they were true or false guards against abuse of libel actions and unwarranted intrusion upon free discussion envisioned by the Act.
28
As we have pointed out, certain language characteristic of labor disputes may be held actionable per se in some state courts. These categories of libel have developed without specific reference to labor controversies. However, even in those jurisdictions, the amount of damages which may be recovered depends upon evidence as to the severity of the resulting harm. This is a salutary principle. We therefore hold that a complainant may not recover except upon proof of such harm, which may include general injury to reputation, consequent mental suffering, alienation of associates, specific items of pecuniary loss, or whatever form of harm would be recognized by state tort law.7 The fact that courts are generally not in close contact with the pressures of labor disputes makes it especially necessary that this rule be followed. If the amount of damages awarded is excessive, it is the duty of the trial judge to require a remittitur or a new trial. Likewise, the defamed party must establish that he has suffered some sort of compensable harm as a prerequisite to the recovery of additional punitive damages.8
29
Since the complaint here does not make the specific allegations that we find necessary in such actions, leave should be given Linn on remand to amend his complaint, if he so desires, to meet these requirements. In the event of a new trial he, of course, bears the burden of proof of such allegations.
IV.
30
Finally, it has been argued that permitting state action here would impinge upon national labor policy because the availability of a judicial remedy for malicious libel would cause employers and unions to spurn appropriate administrative sanctions for contemporaneous violations of the Act. We disagree. When the Board and state law frown upon the publication of malicious libel, albeit for different reasons, it may be expected that the injured party will request both administrative and judicial relief. The Board would not be ignored since its sanctions alone can adjust the equilibrium disturbed by an unfair labor practice. If a malicious libel contributed to union victory in a closely fought election, few employers would be satisfied with simply damages for 'personal' injury caused by the defamation. An unsuccessful union would also seek to set the election results aside as the fruits of an employer's malicious libel. And a union may be expected to request similar relief for defamatory statements which contribute to the victory of a competing union. Nor would the courts and the Board act at cross purposes since, as we have seen, their policies would not be inconsistent.
31
As was said in Garrison v. State of Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125: '(T)he use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.' We believe that under the rules laid down here it can be appropriately redressed without curtailment of state libel remedies beyond the actual needs of national labor policy. However, if experience shows that a greater curtailment, even a total one, should be necessary to prevent impairment of that policy, the Court will be free to reconsider today's holding. We deal here not with a constitutional issue but solely with the degree to which state remedies have been pre-empted by the Act.
32
Reversed and remanded.
33
Mr. Justice BLACK, dissenting.
34
The Court holds that an individual participant on the employer's side of a labor dispute can sue the union for libel on account of charges made by the union in the heat of the dispute. By the same token I assume that under the Court's holding, individual labor union members now have the right to sue their employers when they say naughty things during labor disputes. This new Court-made law tosses a monkey wrench into the collective bargaining machinery Congress set up to try to settle labor disputes, and at the same time exalts the law of libel to an even higher level of importance in the regulation of day-to-day life in this country.
35
When Congress passed the National Labor Relations Act, it must have known, as almost all people do, that in labor disputes both sides are masters of the arts of vilification, invective and exaggeration. In passing this law Congress indicated no purpose to try to purify the language of labor disputes or force the disputants to say nice things about one another. Nor do I believe Congress intended to leave participants free to sue one another for libel for insults they hurl at one another in the heat of battle. The object of the National Labor Relations Act was to bring about agreements by collective bargaining, not to add fuel to the fire by encouraging libel suits with their inevitable irritations and disputeprolonging tendencies. Yet it is difficult to conceive of an element more certain to create irritations guaranteed to prevent fruitful collective bargaining discussions than the threat or presence of a large monetary judgment gained in a libel suit generating anger and a desire for vengeance on the part of one or the other of the bargaining parties. I think, therefore, that libel suits are not only 'arguably' but inevitably in conflict with the basic purpose of the Act to settle disputes peaceably—not to aggravate them, but to end them. For this reason I would affirm the judgment of the two lower courts.
36
Moreover, we held in Thornhill v. State of Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093, that 'In the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution.' Discussion is not free, however, within the meaning of our First Amendment, if that discussion may be penalized by judgments for damages in libel actions. See the concurring opinions of Mr. Justice Douglas and myself in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, and Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125, and my opinion in Rosenblatt v. Baer, 383 U.S. 94, 86 S.Ct. 669. It is rather strange for this Court to import its novel ideas on libel suits into the area of labor controversies where the effect is bound to abridge the freedom of the parties to discuss their disputes and to settle them through peaceful negotiations. It is strange because one of the hopes of those responsible for modern collective bargaining was that peaceful settlements among the parties working by themselves under the aegis of federal law would be substituted for the old-time labor feuds too frequently accompanied by bitter strife and wasteful, dangerous conflicts verging on private war. Because libel suits in my judgment are inconsistent with both the Constitution of the United States and the policies of the Act, I dissent from the holding of the Court reversing the judgment below.
37
Mr. Justice FORTAS, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.
38
In my opinion, the Court's decision in the present case opens a major breach in the wall which has heretofore confined labor disputes to the area and weaponry defined by federal labor law, except where violence or intimidation is involved. By arming the disputants with the weapon of libel suits and the threat of punitive damages the Court jeopardizes the measure of stability painstakingly achieved in labor-management relations. It introduces a potentially disruptive device into the comprehensive structure created by Congress for resolving these disputes. In so doing, the Court not only sanctions an arrangement inconsistent with the intent of Congress, but, I think, departs from its own decisions narrowly limiting the occasions on which the disputants may, outside of the statutory framework, litigate issues arising in labor disputes.
39
In my judgment, the structure provided by Congress for the handling of labor-management controversies precludes any court from entertaining a libel suit between parties to a labor dispute or their agents where the allegedly defamatory statement is confined to matters which are part of the fabric of the dispute. The present controversy is just such a case.
40
Petitioner Linn is an officer of the employer sought to be organized by respondent union. The allegedly defamatory statements, set out in the opinion of the Court, relate to management conduct during the course of the dispute. The leaflets in question allegedly accuse management of lying both to the NLRB and to employees in order to deprive some employees of their right to vote in NLRB elections and to certain pay increases.
41
As an illustration of the kind of hyperbole characteristic of labor-management strife, this 'libel' is hardly incendiary. To the experienced eye, it is pale and anemic when compared with the rich and colorful charges freely exchanged in the heat of many labor disputes.1
42
In response to such a pallid 'libel,' the Court today holds that petitioner, perceiving himself the target of a purportedly false and defamatory statement, may sue the union and several of its officers for damages—so long as he pleads that the statement is defamatory, was made with malice, and caused some injury to him. Should he succeed in clearing the hurdles thus set in his path, he may recover not only compensation for his 'injuries,' but punitive or exemplary damages as well. These requirements that petitioner plead and prove both malice and special damages—arising from what I regard as the Court's well-founded concern that libel suits might otherwise 'pose a threat to the stability of labor unions and smaller employers'—may be cold comfort to the potential defendant in a libel suit. 'Malice,' which the Court defines as a deliberate intention to falsify or a malevolent desire to injure, is, after all, a largely subjective standard, responsive to the ingenuity of trial counsel and the predilections of judge and jury. And 'injury' resulting from words is not limited to tangible trauma. These requirements afford dubious defense on a battlefield from which the qualified umpire—the NLRB has been removed. In a libel suit, the outcome is determined by standards alien to the subject matter of labor relations, by considerations which do not take into account the complex and subtle values that are at stake, and by a jury unfamiliar with the quality of rhetoric customary in labor disputes. The outcome, in fact, is more apt to reflect immediate community attitudes toward unionization than appreciation for the underlying, long-term perplexities of the interplay of management and labor in a democratic society.
43
Until today, the decisions of this Court have consistently held that the federal structure for resolving labor disputes may not be breached or encumbered by state remedies where the tortious conduct allegedly involved is either protected or prohibited by federal labor legislation, or even 'arguably subject to' federal law2—and despite the inability of the NLRB to redress the pecuniary harm suffered by the victime. In Garner v. Teamsters, etc., Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228, the Court held that state courts may not enjoin peaceful picketing where plaintiff's grievance is within the jurisdiction of the NLRB. In Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601, the Court held that even where the NLRB declines to exercise its conceded jurisdiction over a labor dispute 'affecting commerce,' a parallel remedy before a state board is nonetheless pre-empted. And in San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, the Court concluded that state courts may not award damages for peaceful picketing, although the conduct involved was only 'arguably subject' to the federal statute and despite the NLRB's decision not to exercise jurisdiction.3 See also Liner v. Jafco, Inc., 375 U.S. 301, 84 S.Ct. 391, 11 L.Ed.2d 347; Local 100 of United Ass'n of Journeymen and Apprentices v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638; Local No. 438, Constr. & General Laborers' Union v. Curry, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d 514. Today marks the first departure from what has become a well-established rule that only where the public's compelling interest in preventing violence or the threat of violence is involved can the exclusiveness of the federal structure for resolving labor disputes be breached. As was said in Garmon, 359 U.S., at 247, 79 S.Ct., at 780: 'Even the States' salutary effort to redress private wrongs or grant compensation for past harm cannot be exerted to regulate activities that are potentially subject to the exclusive federal regulatory scheme.' The majority's opinion fails to make clear why the participant's interest in protecting his reputation from the sting of words uttered as part of a labor dispute is a compelling concern which this Court must allow the States to protect, while his interest in preserving his economic well-being from illegal picketing is not.
44
By narrowly restricting the permissible exceptions to the general rule of preemption and by excluding generally the right to compensation for purely private wrongs, the Court has contributed to the Nation's success in domesticating the potentially explosive warfare between labor and management. The decision announced today threatens the degree of equilibrium which has been achieved. I think that the Court's decision both underestimates the damage libel suits may inflict on the equilibrium, and overestimates the effectiveness of the restraint which will result from superimposed requirements of malice and special damages.
45
I find support for my view in the evidence as to the intent of Congress. As the majority concedes, Congress has in unmistakable terms recognized the importance of labor-management dialogue untrammelled by fear of retribution for strong utterances. It has manifested awareness that lusty speech provides a useful safety valve for the tensions which often accompany these controversies. For example, Congress has provided that an unfair labor practice charge may not be based on the 'expressing of any views, argument, or opinion * * * if such expression contains no threat of reprisal or force or promise of benefit.' 29 U.S.C. § 158(c) (1964 ed.).4 And one of its statutes, 29 U.S.C. § 411(a)(2) (1964 ed.), has been construed to prevent unions from disciplining members who utter defamatory statements during the course of internal union disputes. Salzhandler v. Caputo, 316 F.2d 445 (C.A.2d Cir.), cert. denied, 375 U.S. 946, 84 S.Ct. 344, 11 L.Ed.2d 275; Cole v. Hall, 339 F.2d 881 (C.A.2d Cir.); Stark v. Twin City Carpenters Dist. Council, 219 F.Supp. 528 (D.C.D.Minn.). Where Congress wishes to create an exception to the general rule of exclusive NLRB jurisdiction, it does so explicitly. See 29 U.S.C. § 187 (1964 ed.), authorizing suits for damages arising out of violations of 29 U.S.C. § 158, and 29 U.S.C. § 164, authorizing judicial remedies where the NLRB declines to assert jurisdiction under 29 U.S.C. § 151 (1964 ed.).
46
The foregoing considerations do not apply to the extent that the use of verbal weapons during labor disputes is not confined to any issue in the dispute, or involves a person who is neither party to nor agent of a party to the dispute. In such instances, perhaps the courts ought to be free to redress whatever private wrong has been suffered. But this is not such a case. The fact that the Court today rules that, after appropriate amendment of the complaint, a libel action may be maintained on the basis of the circumscribed accusation contained in the leaflet in question demonstrates how very substantial is the breach opened in the wall which has heretofore insulated labor disputes from the vagaries of lawsuits.5 I would affirm the decision below.
1
E.g., Brantley v. Devereaux, 237 F.Supp. 156 (D.C.E.D.S.C.1965); Meyer v. Joint Council 53, Int'l Bro. of Teamsters, 416 Pa. 401, 206 A.2d 382, petition for cert. dismissed under Rule 60, 382 U.S. 897, 86 S.Ct. 193, 15 L.Ed.2d 154 (1965). Blum v. International Assn. of Machinists, 42 N.J. 389, 201 A.2d 46 (1964).
2
We adopt this terminology to avoid confusion with the concept of libel per se, applied in many States simply to designate words whose defamatory nature appears without consideration of extrinsic facts. Although Linn's complaint alleges that the leaflets were 'libelous per se,' his failure to specify the manner in which their publication harmed him indicates that he meant to rely on the presumption of damages. Under our present holding Linn must show that he was injured by the circulation of the statements; this necessarily includes proof that the words had a defamatory meaning.
3
The Congress has declared in the Act that employees have the right to self-or-ganization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activity for mutual aid and protection. § 7. In § 8(a) Congress has made it an unfair labor practice for an employer to restrain or coerce employees in the exercise of § 7 rights. Likewise, § 8(b) protects these rights against interference by a labor organization or its agents. And § 8(c) provides that the expression of any views or opinions 'shall not constitute or be evidence of an unfair labor practice * * * if such expression contains no threat of reprisal or force or promise of benefit.' In addition, § 9(c)(1) authorizes the Board, under certain conditions, to conduct representation elections and certify the results thereof. Finally, § 10 grants the Board exclusive power to enforce the prohibitions of the Act.
4
See Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv.L.Rev. 38, 66 (1964).
5
The wording of the statute indicates, however, that § 8(c) was not designed to serve this interest by immunizing all statements made in the course of a labor controversy. Rather, § 8(c) provides that the 'expressing of any views, argument, or opinion * * * shall not constitute or be evidence of an unfair labor practice * * * if such expression contains no threat of reprisal or force or promise of benefit.' 61 Stat. 142 (1947), 29 U.S.C. § 158(c) (1964 ed.). It is more likely that Congress adopted this section for a narrower purpose, i.e., to prevent the Board from attributing antiunion motive to an employer on the basis of his past statements. See H.R.Rep.No. 510, 80th Cong., 1st Sess., 45 (1947). U.S.Code Congressional Service, p. 1135. Comparison with the express protection given union members to criticize the management of their unions and the conduct of their officers, 73 Stat. 523 (1959), 29 U.S.C. § 411(a)(2) (1964 ed.), strengthens this interpretation of congressional intent.
6
The fact that the Board has no authority to grant effective relief aggravates the State's concern since the refusal to redress an otherwise actionable wrong creates disrespect for the law and encourages the victim to take matters into his own hands. The function of libel suits in preventing violence has long been recognized. Developments in the Law—Defamation, 69 Harv.L.Rev. 875, 933 (1956). But as to criminal libel suits see Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964).
7
The Government, as amicus curiae, has urged us to go further. It would limit liability to 'grave' defamations—those which accuse the defamed person of having engaged in criminal, homosexual, treasonable, or other infamous conduct. We cannot agree. This would impose artificial characterizations that would encroach too heavily upon state jurisdiction.
8
It should be noted that punitive damages were awarded in Laburnum and Russell. In both instances there was proof of compensatory injury resulting from the defendants' violence.
1
Compare, for example, the considerably more imaginative use of vituperation reflected in the allegedly defamatory statement in United Steelworkers of America v. R. H. Bouligny, Inc., 382 U.S. 145, 86 S.Ct. 272, 15 L.Ed.2d 217. A description of the statement is found in Brief for Respondent, p. 2 (No. 19, O.T.1965).
2
Suits to enforce collective bargaining agreements have been held to arise under 29 U.S.C. § 185(a) (1964 ed.) and hence are not within the reach of the pre-emption doctrine. See Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246; Sovern, Section 301 and the Primary Jurisdiction of the NLRB, 76 Harv.L.Rev. 529 (1963).
3
Subsequent to Garmon and Guss, Congress has explicity removed the obstacles to state-court treatment of labor disputes as to which the NLRB has declined to exercise jurisdiction on the ground of insufficient effect on interstate commerce. 29 U.S.C. § 164(c)(2) (1964 ed.).
4
Although libelous statements cannot serve as the predicate for an unfair labor practice charge, like any other misleading statement they may in certain circumstances induce the NLRB to set aside the results of an election. See Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv.L.Rev. 38, 82—84 (1964).
5
Resort to libel suits as an auxiliary weapon in resolving labor disputes presents much more than an abstract threat. For evidence of a growing tendency to invoke these suits see the list of such cases recently pending in the Fourth Circuit alone in Brief for Petitiioner, p. 15, United Steelworkers of America v. R. H. Bouligny, Inc., supra; and those discussed at pp. 18—39 of the Appendix to the brief filed by respondents in Nos. 89 and 94, O.T.1965, and in the present case as amici curiae.
| 910
|
383 U.S. 39
86 S.Ct. 708
15 L.Ed.2d 572
UNITED STATES, Petitioner,v.Bert N. ADAMS et al.
No. 55.
Argued Oct. 14, 1965.
Decided Feb. 21, 1966.
[Syllabus from pages 39-40 intentionally omitted]
John W.Douglas, Washington, D. C., for petitioner.
John A. Reilly, New York City, for respondents.
Mr. Justice CLARK delivered the opinion of the Court.
1
This is a companion case to No. 11, Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, decided this day along with Nos. 37 and 43, Calmar, Inc. v. Cook Chemical Co. and Colgate-Palmolive Co. v. Cook Chemical Co. The United States seeks review of a judgment of the Court of Claims, holding valid and infringed a patent on a wet battery issued to Adams. This suit under 28 U.S.C. § 1498 (1964 ed.) was brought by Adams and others holding an interest in the patent against the Government charging both infringement and breach of an implied contract to pay compensation for the use of the invention. The Government challenged the validity of the patent, denied that it had been infringed or that any contract for its use had ever existed. The Trial Commissioner held that the patent was valid and infringed in part but that no contract, express or implied, had been established. The Court of Claims adopted these findings, initially reaching only the patent questions, 330 F.2d 622, 165 Ct.Cl. 576, but subsequently, on respondents' motion to amend the judgment, deciding the contract claims as well. 330 F.2d, at 634, 165 Ct.Cl., at 598. The United States sought certiorari on the patent validity issue only. We granted the writ, along with the others, in order to settle the important issues of patentability presented by the four cases. 380 U.S. 949, 85 S.Ct. 1090, 13 L.Ed.2d 968. We affirm.
I.
2
While this case is controlled on the merits by No. 11, Graham, 383 U.S. 1, 86 S.Ct. 684, respondents have raised threshold issues as to our jurisdiction which require separate handling. They say that the petition for certiorari came too late, contending that the 90-day period for filing began with the date of the initial judgment rather than the date of the decision on the contract issue, citing F.T.C. v. Minneapolis-Honeywell Co., 344 U.S. 206, 73 S.Ct. 245, 97 L.Ed. 245 (1952). We cannot agree; first, because that case did not involve a timely motion to amend the judgment1 and, secondly, because here the Government's liability was inextricably linked with the alleged contract action which was not determined until the latter judgment.
3
Nor is there merit in respondents' contention that the Government failed to comply with the requirements of our Rules 21(1) and 33 as to service, since these requirements are not jurisdictional, no prejudice resulted and the failure was inadvertent.
4
We turn now to the merits.
II.
5
The Patent in Issue and Its Background.
6
The patent under consideration, U.S. No. 2,322,210, was issued in 1943 upon an application filed in December 1941 by Adams. It relates to a nonrechargeable, as opposed to a storage, electrical battery. Stated simply, the battery comprises two electrodes—one made of magnesium, the other of cuprous chloride which are placed in a container. The electrolyte, or battery fluid, used may be either plain or salt water.
7
The specifications of the patent state that the object of the invention is to provide constant voltage and current without the use of acids, conventionally employed in storage batteries, and without the generation of dangerous fumes. Another object is 'to provide a battery which is relatively light in weight with respect to capacity' and which 'may be manufactured and distributed to the trade in a dry condition and rendered serviceable by merely filling the container with water.' Following the specifications, which also set out a specific embodiment of the invention, there appear 11 claims. Of these, principal reliance has been placed upon Claims 1 and 10, which read:
8
'1. A battery comprising a liquid container, a magnesium electropositive electrode inside the container and having an exterior terminal, a fused cuprous chloride electronegative electrode, and a terminal connected with said electronegative electrode.' '10. In a battery, the combination of a magnesium electropositive electrode, and an electronegative electrode comprising cuprous chloride fused with a carbon catalytic agent.'
9
For several years prior to filing his application for the patent, Adams had worked in his home experimenting on the development of a wet battery. He found that when cuprous chloride and magnesium were used as electrodes in an electrolyte of either plain water or salt water an improved battery resulted.
10
The Adams invention was the first practical, water-activated, constant potential battery which could be fabricated and stored indefinitely without any fluid in its cells. It was activated within 30 minutes merely by adding water. Once activated, the battery continued to deliver electricity at a voltage which remained essentially constant regardless of the rate at which current was withdrawn. Furthermore, its capacity for generating current was exceptionally large in comparison to its size and weight. The battery was also quite efficient in that substantially its full capacity could be obtained over a wide range of currents. One disadvantage, however, was that once activated the battery could not be shut off; the chemical reactions in the battery continued even though current was not withdrawn. Nevertheless, these chemical reactions were highly exothermic, liberating large quantities of heat during operation. As a result, the battery performed with little effect on its voltage or current in very low temperatures. Relatively high temperatures would not damage the battery. Consequently, the battery was operable from 65 below zero Fahrenheit to 200 Fahrenheit. See findings at 330 F.2d, at 632, 165 Ct.Cl., at 591—592.
11
Less than a month after filing for his patent, Adams brought his discovery to the attention of the Army and Navy. Arrangements were quickly made for demonstrations before the experts of the United States Army Signal Corps. The Signal Corps scientists who observed the demonstrations and who conducted further tests themselves did not believe the battery was workable. Almost a year later, in December 1942, Dr. George Vinal, an eminent government expert with the National Bureau of Standards, still expressed doubts. He felt that Adams was making 'unusually large claims' for 'high watt hour output per unit weight,' and he found 'far from convincing' the graphical data submitted by the inventor showing the battery's constant voltage and capacity characteristics. He recommended, 'Until the inventor can present more convincing data about the performance of his (battery) cell, I see no reason to consider it further.'
12
However, in November 1943, at the height of World War II, the Signal Corps concluded that the battery was feasible. The Government thereafter entered into contracts with various battery companies for its procurement. The battery was found adaptable to many uses. Indeed, by 1956 it was noted that '(t)here can be no doubt that the addition of water activated batteries to the family of power sources has brought about developments which would otherwise have been technically or economically impractical.' See Tenth Annual Battery Research and Development Conference, Signal Corps Engineering Laboratories, Fort Monmouth, N.J., p. 25 (1956). Also, see Finding No. 24, 330 F.2d, at 632, 165 Ct.Cl., at 592.
13
Surprisingly, the Government did not notify Adams of its changed views nor of the use to which it was putting his device, despite his repeated requests. In 1955, upon examination of a battery produced for the Government by the Burgess Company, he first learned of the Government's action. His request for compensation was denied in 1960, resulting in this suit.
III.
14
The Prior Art.
15
The basic idea of chemical generation of electricity is, of course, quite old. Batteries trace back to the epic discovery by the Italian scientist Volta in 1795, who found that when two dissimilar metals are placed in an electrically conductive fluid an electromotive force is set up and electricity generated. Essentially, the basic elements of a chemical battery are a pair of electrodes of different electrochemical properties and an electrolyte which is either a liquid (in 'wet' batteries) or a moist paste of various substances (in the so-called 'drycell' batteries). Various materials which may be employed as electrodes, various electrolyte possibilities and many combinations of these elements have been the object of considerable experiment for almost 175 years. See generally, Vinal, Primary Batteries (New York 1950).
16
At trial, the Government introduced in evidence 24 patents and treatises as representing the art as it stood in 1938, the time of the Adams invention.2 Here, however, the Government has relied primarily upon only six of these references3 which we may summarize as follows.
17
The Niaudet treatise describes the Marie Davy cell invented in 1860 and De La Rue's variations on it. The battery comprises a zinc anode and a silver chloride cathode. Although it seems to have been capable of working in an electrolyte of pure water, Niaudet says the battery was of 'little interest' until De La Rue used a solution of ammonium chloride as an electrolyte. Niaudet also states that '(t)he capital advantage of this battery, as in all where zinc with sal ammoniac (ammonium chloride solution) is used, consists in the absence of any local or internal action as long as the electric circuit is open; in other words, this battery does not work upon itself.' Hayes likewise discloses the De La Rue zinc-silver chloride cell, but with certain mechanical differences designed to restrict the battery from continuing to act upon itself.
18
The Wood patent is relied upon by the Government as teaching the substitution of magnesium, as in the Adams patent, for zinc. Wood's patent, issued in 1928, states: 'It would seem that a relatively high voltage primary cell would be obtained by using * * * magnesium as the * * * (positive) electrode and I am aware that attempts have been made to develop such a cell. As far as I am aware, however, these have all been unsuccessful, and it has been generally accepted that magnesium could not be commercially utilized as a primary cell electrode.' Wood recognized that the difficulty with magnesium electrodes is their susceptibility to chemical corrosion by the action of acid or ammonium chloride electrolytes. Wood's solution to this problem was to use a 'NEUTRAL ELECTROLYTE CONTAINING A STRONG soluble oxidizing agent adapted to reduce the rate of corrosion of the magnesium electrode on open circuit.' There is no indication of its use with cuprous chloride, nor was there any indication that a magnesium battery could be water-activated.
19
The Codd treatise is also cited as authority for the substitution of magnesium. However, Codd simply lists magnesium in an electromotive series table, a tabulation of electrochemical substances in descending order of their relative electropositivity. He also refers to magnesium in an example designed to show that various substances are more electropositive than others, but the discussion involves a cell containing an acid which would destroy magnesium within minutes. In short, Codd indicates, by inference, only that magnesium is a theoretically desirable electrode by virtue of its highly electropositive character. He does not teach that magneisum could be combined in a water-activated battery or that a battery using magnesium would have the properties of the Adams device. Nor does he suggest, as the Government indicates, that cuprous chloride could be substituted for silver chloride. He merely refers to the cuprous ion—a generic term which includes an infinite number of copper compounds—and in no way suggests that cuprous chloride could be employed in a battery.
20
The Government then cites the Wensky patent which was issued in Great Britain in 1891. The patent relates to the use of cuprous chloride as a depolarizing agent. The specifications of his patent disclose a battery comprising zinc and copper electrodes, the cuprous chloride being added as a salt in an electrolyte solution containing zinc chloride as well. While Wensky recognized that cuprous chloride could be used in a constant-current cell, there is no indication that he taught a water-activated system or that magnesium could be incorporated in his battery.
21
Finally, the Skrivanoff patent depended upon by the Government relates to a battery designed to give intermittent, as opposed to continuous, service. While the patent claims magnesium as an electrode, it specifies that the electrolyte to be used in conjunction with it must be a solution of 'alcoline, chloro-chromate, or a permanganate strengthened with sulphuric acid.' The cathode was a copper or carbon electrode faced with a paste of 'phosphoric acid, amorphous phosphorous, metallic copper in spangles, and cuprous chloride.' This paste is to be mixed with hot sulfuric acid before applying to the electrode. The Government's expert testified in trial that he had no information as to whether the cathode, as placed in the battery, would, after having been mixed with the other chemicals prescribed, actually contain cuprous chloride. Furthermore, respondents' expert testified, without contradiction, that he had attempted to assemble a battery made in accordance with Skrivanoff's teachings, but was met first with a fire when he sought to make the cathode, and then with an explosion when he attempted to assemble the complete battery.
IV.
22
The Validity of the Patent.
23
The Government challenges the validity of the Adams patent on grounds of lack of novelty under 35 U.S.C. § 102(a) (1964 ed.) as well as obviousness under 35 U.S.C. § 103 (1964 ed.) As we have seen in Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, novelty and nonobviousness—as well as utility—are separate tests of patentability and all must be satisfied in a valid patent.
24
The Government concludes that wet batteries comprising a zinc anode and silver chloride cathode are old in the art; and that the prior art shows that magnesium may be substituted for zinc and cuprous chloride for silver chloride. Hence, it argues that the 'combination of magnesium and cuprous chloride in the Adams battery was not patentable because it represented either no change or an insignificant change as compared the prior battery designs.' And, despite 'the fact that, wholly unexpectedly, the battery showed certain valuable operating advantages over other batteries (these advantages) would certainly not justify a patent on the essentially old formula.'
25
There are several basic errors in the Government's position. First, the fact that the Adams battery is water-activated sets his device apart from the prior art. It is true that Claims 1 and 10, supra, do not mention a water electrolyte, but, as we have noted, a stated object of the invention was to provide a battery rendered serviceable by the mere addition of water. While the claims of a patent limit the invention, and specifications cannot be utilized to expand the patent monopoly, Burns v. Meyer, 100 U.S. 671, 672, 25 L.Ed. 733 (1880); McCarty v. Lehigh Valley R. Co., 160 U.S. 110, 116, 16 S.Ct. 240, 242, 40 L.Ed. 358 (1895), it is fundamental that claims are to be construed in the light of the specifications and both are to be read with a view to ascertaining the invention, Seymour v. Osborne, 11 Wall. 516, 547, 20 L.Ed. 33 (1871); Schriber-Schroth Co. v. Cleveland Trust Co., 311 U.S. 211, 312 U.S. 654, 61 S.Ct. 235, 85 L.Ed. 132 (1940); Schering Corp. v. Gilbert, 2 Cir., 153 F.2d 428 (1946). Taken together with the stated object of disclosing a water-activated cell, the lack of reference to any electrolyte in Claims 1 and 10 indicates that water alone could be used. Furthermore, of the 11 claims in issue, three of the narrower ones include references to specific electrolyte solutions comprising water and certain salts. The obvious implication from the absence of any mention of an electrolyte—a necessary element in any battery—in the other eight claims reinforces this conclusion. It is evident that respondents' present reliance upon this feature was not the afterthought of an astute patent trial lawyer. In his first contact with the Government less than a month after the patent application was filed, Adams pointed out that 'no acids, alkalines or any other liquid other than plain water is used in this cell. Water does not have to be distilled. * * *' Letter to Charles F. Kettering (January 7, 1942), R., pp. 415, 416. Also see his letter to the Department of Commerce (March 28, 1942), R., p. 422. The findings, approved and adopted by the Court of Claims, also fully support this conclusion.
26
Nor is Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 S.Ct. 1143, 89 L.Ed. 1644 (1945), apposite here. There the patentee had developed a rapidly drying printing ink. All that was needed to produce such an ink was a solvent which evaporated quickly upon heating. Knowing that the boiling point of a solvent is an indication of its rate of evaporation, the patentee merely made selections from a list of solvents and their boiling points. This was no more than 'selecting the last piece to put into the last opening in a jig-saw puzzle.' 325 U.S., at 335, 65 S.Ct. at 1147. Indeed, the Government's reliance upon Sinclair & Carroll points up the fallacy of the underlying premise of its case. The solvent in Sinclair & Carroll had no functional relation to the printing ink involved. It served only as an inert carrier. The choice of solvent was dictated by known, required properties. Here, however, the Adams battery is shown to embrace elements having an interdependent functional relationship. It begs the question, and overlooks the holding of the Commissioner and the Court of Claims, to state merely that magnesium and cuprous chloride were individually known battery components. If such a combination is novel, the issue is whether bringing them together as taught by Adams was obvious in the light of the prior art.
27
We believe that the Court of Claims was correct in concluding that the Adams battery is novel. Skrivanoff disclosed the use of magnesium in an electrolyte completely different from that used in Adams. As we have mentioned, it is even open to doubt whether cuprous chloride was a functional element in Skrivanoff. In view of the unchallenged testimony that the Skrivanoff formulation was both dangerous and inoperable, it seems anomalous to suggest that it is an anticipation of Adams. An inoperable invention or one which fails to achieve its intended result does not negative novelty. Smith v. Snow, 294 U.S. 1, 17, 55 S.Ct. 279, 285, 79 L.Ed. 721 (1935). That in 1880 Skrivanoff may have been able to convince a foreign patent examiner to issue a patent on his device has little significance in the light of the foregoing.
28
Nor is the Government's contention that the electrodes of Adams were mere substitutions of pre-existing battery designs supported by the prior art. If the use of magnesium for zinc and cuprous chloride for silver chloride were merely equivalent substitutions, it would follow that the resulting device—Adams'—would have equivalent operating characteristics. But it does not. The court below found, and the Government apparently admits, that the Adams battery 'wholly unexpectedly' has shown 'certain valuable operating advantages over other batteries' while those from which it is claimed to have been copied were long ago discarded. Moreover, most of the batteries relied upon by the Government were of a completely different type designed to give intermittent power and characterized by an absence of internal action when not in use. Some provided current at voltages which declined fairly proportionately with time.4 Others were so-called standard cells which, though producing a constant voltage, were of use principally for calibration or measurement purposes. Such cells cannot be used as sources of power.5 For these reasons we find no equivalency.6
29
We conclude the Adams battery was also nonobvious. As we have seen, the operating characteristics of the Adams battery have been shown to have been unexpected and to have far surpassed then-existing wet batteries. Despite the fact that each of the elements of the Adams battery was well known in the prior art, to combine them as did Adams required that a person reasonably skilled in the prior art must ignore that (1) batteries which continued to operate on an open circuit and which heated in normal use were not practical; and (2) water-activated batteries were successful only when combined with electrolytes detrimental to the use of magnesium. These long-accepted factors, when taken together, would, we believe, deter any investigation into such a combination as is used by Adams. This is not to say that one who merely finds new uses for old inventions by shutting his eyes to their prior disadvantages thereby discovers a patentable innovation. We do say, however, that known disadvantages in old devices which would naturally discourage the search for new inventions may be taken into account in determining obviousness.
30
Nor are these the only factors bearing on the question of obviousness. We have seen that at the time Adams perfected his invention noted experts expressed disbelief in it. Several of the same experts subsequently recognized the significance of the Adams invention, some even patenting improvements on the same system. Fischbach et al., U.S. Patent No. 2,636,060 (1953). Furthermore, in a crowded art replete with a century and a half of advancement, the Patent Office found not one reference to cite against the Adams application. Against the subsequently issued improvement patents to Fischbach, supra, and to Chubb, U.S. Reissue Patent No. 23,883 (1954), it found but three references prior to Adams—none of which are relied upon by the Government.
31
We conclude that the Adams patent is valid. The judgment of the Court of Claims is affirmed. It is so ordered.
32
Affirmed.
33
Mr. Justice WHITE dissents.
34
Mr. Justice FORTAS took no part in the consideration or decision of this case.
1
Where a timely motion is filed, the time in such cases runs from the date of the order overruling the motion. See Department of Banking v. Pink, 317 U.S. 264, 267, 63 S.Ct. 233, 235, 87 L.Ed. 254 (1942); United States v. Crescent Amusement Co., 323 U.S. 173, 177, 65 S.Ct. 254, 256, 89 L.Ed. 160 (1944); Forman v. United States, 361 U.S. 416, 426, 80 S.Ct. 481, 487, 4 L.Ed.2d 412 (1960).
2
The references are listed in the opinion of the Court of Claims, 330 F.2d, at 631, 165 Ct.Cl., at 590.
3
Niaudet, Elementary Treatise on Electric Batteries (Fishback translation 1880); Hayes U.S.Patent No. 282,634 (1883); Wood U.S.Patent No. 1,696,873 (1928); Codd, Practical Primary Cells (London 1929); Wensky British Patent No. 49 of 1891; and Skrivanoff British Patent No. 4,341 (1880).
4
It is interesting to note in this connection that in testing the Adams cell the Signal Corps compared it with batteries of this type. The graphical results of the comparison are shown in respondents' brief, p. 51.
5
The standard text in the art states: 'The best answer to the oft-repeated question: 'How much current can I draw from my standard cell?' is 'None." Vinal, Primary Batteries, p. 212 (New York 1950); see also Ruben U.S. Patent No. 1,920,151 (1933).
6
In their motion to dismiss the writ of certiorari as improvidently granted, respondents asserted that the Government was estopped to claim equivalency of cuprous chloride and silver chloride. We find no merit in this contention and, therefore, deny the motion.
| 78
|
383 U.S. 75
86 S.Ct. 669
15 L.Ed.2d 597
Alfred D. ROSENBLATT, Petitioner,v.Frank P. BAER.
No. 38.
Argued Oct. 20, 1965.
Decided Feb. 21, 1966.
[Syllabus from pages 75-76 intentionally omitted]
Arthur H. Nighswander, Laconia, N.H., for petitioner.
Stanley M. Brown, Manchester, N.H., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
A jury in New Hampshire Superior Court awarded respondent damages in this civil libel action based on one of petitioner's columns in the Laconia Evening Citizen. Respondent alleged that the column contained defamatory falsehoods concerning his performance as Supervisor of the Belknap County Recreation Area, a facility owned and operated by Belknap County. In the interval between the trial and the decision of petitioner's appeal by the New Hampshire Supreme Court, we decided New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. We there held that consistent with the First and Fourteenth Amendments a State cannot award damages to a public official for defamatory falsehood relating to his official conduct unless the official proves actual malice—that the falsehood was published with knowledge of its falsity or with reckless disregard of whether it was true or false. The New Hampshire Supreme Court affirmed the award, finding New York Times no bar. 106 N.H. 26, 203 A.2d 773. We granted certiorari and requested the parties to brief and argue, in addition to the questions presented in the petition for certiorari, the question whether respondent was a 'public official' under New York Times and under our decision in Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125; 380 U.S. 941, 85 S.Ct. 1023, 13 L.Ed.2d 961.
2
The Recreation Area was used principally as a ski resort but also for other recreational activities. Respondent was employed by and directly responsible to the Belknap County Commissioners, three elected officials in charge of the county government. During the 1950's, a public controversy developed over the way respondent and the Commissioners operated the Area; some protested that respondent and the Commissioners had not developed the Area's full potential, either as a resort for local residents or as a tourist attraction that might contribute to the county's taxes. The discussion culminated in 1959, when the New Hampshire Legislature enacted a law transferring control of the Area to a special five-man commission.1 At least in part to give this new regime a fresh start, respondent was discharged.
3
Petitioner regularly contributed an unpaid column to the Laconia Evening Citizen. In it he frequently commented on political matters. As an outspoken proponent of the change in operations at the Recreation Area, petitioner's views were often sharply stated, and he had indicated disagreement with the actions taken by respondent and the County Commissioners. In January 1960, during the first ski season under the new management, some six months after respondent's discharge, petitiioner published the column that respondent alleges libeled him. In relevant part, it reads:
4
'Been doing a little listening and checking at Belknap Recreation Area and am thunderstruck by what am learning.
5
'This year, a year without snow till very late, a year with actually few very major changes in procedure; the difference in cash income simply fantastic, almost unbelievable.
6
'On any sort of comparative basis, the Area this year is doing literally hundreds of per cent BETTER than last year.
7
'When consider that last year was excellent snow year, that season started because of more snow, months earlier last year, one can only ponder following question:
8
'What happened to all the money last year? and every other year? What magic has Dana Beane (Chairman of the new commission) and rest of commission, and Mr. Warner (respondent's replacement as Supervisor) wrought to make such tremendous difference in net cash results?'
I.
9
The column on its face contains no clearly actionable statement. Although the questions 'What happened to all the money last year? and every other year?' could be read to imply peculation, they could also be read, in context, merely to praise the present administration. The only persons mentioned by name are officials of the new regime; no reference is made to respondent, the three elected commissioners, or anyone else who had a part in the administration of the Area during respondent's tenure. Persons familiar with the controversy over the Area might well read it as complimenting the luck or skill of the new management in attracting increased patronage and producing a 'tremendous difference in net cash results' despite less favorable snow; indeed, witnesses for petitioner testified that they so read the column.
10
Respondent offered extrinsic proofs to supply a defamatory meaning. These proofs were that the column greatly exaggerated any improvement under the new regime, and that a large part of the community understood it to say that the asserted improvements were not explicable by anything the new management had done. Rather, his witnesses testified, they read the column as imputing mismanagement and peculation during respondent's tenure. Respondent urged two theories to support a recovery based on that imputation.
II.
11
The first was that the jury could award him damages if it found that the column cast suspicion indiscriminately on the small number of persons who composed the former management group, whether or not it found that the imputation of misconduct was specifically made of and concerning him.2 This theory of recovery was open to respondent under New Hampshire law; the trial judge explicitly instructed the jury that 'an imputation of impropriety or a crime to one or some of a small group that cast suspicion upon all is actionable.'3 The question is presented, however, whether that theory of recovery is precluded by our holding in New York Times that, in the absence of sufficient evidence that the attack focused on the plaintiff, an otherwise impersonal attack on governmental operations cannot be utilized to establish a libel of those administering the operations. 376 U.S., at 290—292, 84 S.Ct., at 731.
12
The plaintiff in New York Times was one of the three elected Commissioners of the City of Montgomery, Alabama. His duties included the supervision of the police department. The statements in the advertisement upon which he principally relied as referring to him were that 'truckloads of police * * * ringed the Alabama State College Campus' after a demonstration on the State Capitol steps, and that Dr. Martin Luther King had been 'arrested * * * seven times.' These statements were false in that although the police had been 'deployed near the campus,' they had not actually 'ringed' it and had not gone there in connection with a State Capitol demonstration, and in that Dr. King had been arrested only four times. We held that evidence that Sullivan as Police Commissioner was the supervisory head of the Police Department was constitutionally insufficient to show that the statements about police activity were 'of and concerning' him; we rejected as inconsistent with the First and Fourteenth Amendments the proposition followed by the Alabama Supreme Court in the case that '(i)n measuring the performance or deficiencies of * * * groups, praise or criticism is usually attached to the official in complete control of the body,' New York Times Co. v. Sullivan, 273 Ala. 656, 674—675, 144 So.2d 25, 39. To allow the jury to connect the statements with Sullivan on that presumption alone was, in our view, to invite the spectre of prosecutions for libel on government, which the Constitution does not tolerate in any form. 376 U.S., at 273—276, 290—292, 84 S.Ct., at 722, 731.4 We held 'that such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations.' 376 U.S., at 292, 84 S.Ct., at 732. There must be evidence showing that the attack was read as specifically directed at the plaintiff.
13
Were the statement at issue in this case an explicit charge that the Commissioners and Baer or the entire Area management were corrupt, we assume without deciding that any member of the identified group might recover.5 The statement itself might be sufficient evidence that the attack was specifically directed at each individual. Even if a charge and reference were merely implicit, as is alleged here, but a plaintiff could show by extrinsic proofs that the statement referred to him, it would be no defense to a suit by one member of an identifiable group engaged in governmental activity that another was also attacked. These situations are distinguishable from the present case; here, the jury was permitted to infer both defamatory content and reference from the challenged statement itself, although the statement on its face is only an impersonal discussion of government activity. To the extent the trial judge authorized the jury to award respondent a recovery without regard to evidence that the asserted implication of the column was made specifically of and concerning him, we hold that the instruction was erroneous.6 Here, no explicit charge of peculation was made; no assault on the previous management appears. The jury was permitted to award damages upon a finding merely that respondent was one of a small group acting for an organ of government, only some of whom were implicated, but all of whom were tinged with suspicion. In effect, this permitted the jury to find liability merely on the basis of his relationship to the government agency, the operations of which were the subject of discussion. It is plain that the elected Commissioners, also members of that group, would have been barred from suit on this theory under New York Times. They would be required to show specific reference. Whether or not respondent was a public official, as a member of the group he bears the same burden.7 A theory that the column cast indiscriminate suspicion on the members of the group responsible for the conduct of this governmental operation is tantamount to a demand for recovery based on libel of government, and therefore is constitutionally insufficient. Since the trial judge's instructions were erroneous in this respect, the judgment must be reversed.
III.
14
Respondent's second theory, supported by testimony of several witnesses, was that the column was read as referring specifically to him, as the 'man in charge' at the Area, personally responsible for its financial affairs. Even accepting respondent's reading, the column manifestly discusses the conduct of operations of government.8 The subject matter may have been only of local interest, but at least here, where publication was addressed primarily to the interested community, that fact is constitutionally irrelevant. The question is squarely presented whether the 'public official' designation under New York Times applies.
15
If it does, it is clear that the jury instructions were improper. Under the instructions, the jury was permitted to find that negligent misstatement of fact would defeat petitioner's privilege. That test was rejected in Garrison, 379 U.S., at 79, 85 S.Ct., at 218, where we said, 'The test which we laid down in New York Times is not keyed to ordinary care; defeasance of the privilege is conditioned, not on mere negligence, but on reckless disregard for the truth.' The trial court also charged that '(d)efamatory matter which constitutes comment rather than fact is justified if made without malice and represented fair comment on matters of public interest,' and defined malice to include 'ill will, evil motive, intention to injure. * * *' This definition of malice is constitutionally insufficient where discussion of public affairs is concerned; '(w)e held, in New York Times that a public official might be allowed the civil remedy only if he establishes that the utterance was false and that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true.' Garrison, 379 U.S., at 74, 85 S.Ct., at 215.
16
Turning, then, to the question whether respondent was a 'public official' within New York Times we reject at the outset his suggestion that it should be answered by reference to state-law standards. States have developed definitions of 'public official' for local administrative purposes, not the purposes of a national constitutional protection.9 If existing state-law standards reflect the purposes of New York Times, this is at best accidental. Our decision in New York Times, moreover, draws its force from the constitutional protections afforded free expression. The standards that set the scope of its principles cannot therefore be such that 'the constitutional limits of free expression in the Nation would vary with state lines.' Pennekamp v. State of Florida, 328 U.S. 331, 335, 66 S.Ct. 1029, 1031, 90 L.Ed. 1295.10
17
We remarked in New York Times that we had no occasion 'to determine how far down into the lower ranks of government employees the 'public official' designation would extend for purposes of this rule, or otherwise to specify categories of persons who would or would not be included.' 376 U.S., at 283, n. 23, 84 S.Ct., at 727. No precise lines need be drawn for the purposes of this case. The motivating force for the decision in New York Times was twofold. We expressed 'a profound national commitment to the principle that debate on public issue should be uninhibited, robust, and wide-open, and that (such debate) may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.' 376 U.S., at 270, 84 S.Ct., at 721. (Emphasis supplied.) There is, first, a strong interest in debate on public issues, and, second, a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues. Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the 'public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.11
18
This conclusion does not ignore the important social values which underlie the law of defamation. Society has a pervasive and strong interest in preventing and redressing attacks upon reputation. But in cases like the present, there is tension between this interest and the values nurtured by the First and Fourteenth Amendments. The thrust of New York Times is that when interests in public discussion are particularly strong, as they were in that case, the Constitution limits the protections afforded by the law of defamation. Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, both elements we identified in New York Times are present12 and the New York Times malice standards apply.13
19
As respondent framed his case, he may have held such a position. Since New York Times had not been decided when his case went to trial, his presentation was not shaped to the 'public official' issue. He did, however, seek to show that the article referred particularly to him. His theory was that his role in the management of the Area was so prominent and important that the public regarded him as the man responsible for its operations, chargeable with its failures and to be credited with its successes. Thus, to prove the article referred to him, he showed the importance of his rule; the same showing, at the least, raises a substantial argument that he was a 'public official.'14
20
The record here, however, leaves open the possibility that respondent could have adduced proofs to bring his claim outside the New York Times rule. Moreover, even if the claim falls within New York Times, the record suggests respondent may be able to present a jury question of malice as there defined. Because the trial here was had before New York Times, we have concluded that we should not foreclose him from attempting retrial of his action. We remark only that, as is the case with questions of privilege generally it is for the trial judge in the first instance to determine whether the proofs show respondent to be a 'public official.'15
21
The judgment is reversed and the case remanded to the New Hampshire Supreme Court for further proceedings not inconsistent with this opinion.
22
It is so ordered.
23
Reversed and remanded.
24
Mr. Justice CLARK concurs in the result.
25
Mr. Justice DOUGLAS, concurring.
26
In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, we dealt with elected officials.1 We now have the question as to how far its principles extend or how far down the hierarchy we should go.
27
The problems presented are considerable ones. Maybe the key man in a hierarchy is the night watchman responsible for thefts of state secrets. Those of us alive in the 1940's and 1950's witnessed the dreadful orderal of people in the public service being pummelled by those inside and outside government, with charges that were false, abusive, and damaging to the extreme. Many of them, unlike the officials in New York Times who ran far election, rarely had opportunity for rejoinder.
28
Yet if free discussion of public issues is the guide, I see no way to draw lines that exclude that night watchman, the file clerk, the typist, or, for that matter, anyone on the public payroll. And how about those who contract to carry out governmental missions? Some of them are as much in the public domain as any socalled officeholder. And how about the dollar-a-year man, whose prototype was publicized in United States v. Mississippi Valley Generating Co., 364 U.S. 520, 81 S.Ct. 294, 5 L.Ed.2d 268?2 And the industrialists who raise the price of a basic commodity? Are not steel and aluminum in the public domain? And the labor leader who combines trade unionism with bribery and racketeering? Surely the public importance of collective bargaining puts labor as well as management into the public arena so far as the present constitutional issue is concerned.3
29
The Court in Thornhill v. State of Alabama, 310 U.S. 88, 101 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093, put the issue as follows:
30
'The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive adminstration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times. * * * Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.'
31
If the term 'public official' were a constitutional term, we would be stuck with it and have to give it content. But the term is our own; and so long as we are fashioning a rule of free discussion of public issues I cannot relate it only to those who, by the Court's standard, are deemed to hold public office.
32
The question in final analysis is the extent to which the Due Process Clause of the Fourteenth Amendment has displaced the libel laws of the States. I do not suppose anyone would have thought in those terms at the time the Amendment was adopted. But constitutional law is not frozen as of a particular moment of time. It was indeed not until 1931 that this Court squarely held that the First Amendment was applicable to the States by reason of the Fourteenth (Stromberg v. People of State of California, 283 U.S. 359, 368—369, 51 S.Ct. 532, 535, 75 L.Ed. 117)—New York Times being merely an application and extension of that principle. But since freedom of speech is now the guideline, do state libel laws have any place at all in our constitutional system, at least when it comes to public issues? If freedom of speech is the guide, why is it restricted to speech addressed to the larger public matters and not applicable to speech at the lower levels of science, the humanities, the professions, agriculture, and the like?
33
In my view the First Amendment would bar Congress from passing any libel law, the Alien and Sedition Act (1 Stat. 596) to the contrary notwithstanding. Some think that due process as applied to the States is a watered-down federal version as respects the guarantees in the Bill of Rights that are incorporated into the Fourteenth Amendment. See e.g., Roth v. United States, 354 U.S. 476, 501, 77 S.Ct. 1304, 1317, 1 L.Ed.2d 1498 (separate opinion); Beauharnais v. People of State of Illinois, 343 U.S. 250, 287, 72 S.Ct. 725, 746, 96 L.Ed. 919 (dissenting opinion). That has been the minority view, the majority maintaining that there is no difference. If there is no difference and if I am right in assuming Congress could not constitutionally pass a libel law, then the question is whether a public issue, not a public official, is involved.4
34
The case is therefore for me in a different posture than the one discussed by the Court. I would prefer to dismiss the writ as improvidently granted.5 To facilitate our work,6 however, I have decided to join Part II of the Court's opinion, as well as Mr. Justice BLACK'S separate opinion, and to concur in the judgment.
35
Mr. Justice STEWART, concurring.
36
The Constitution does not tolerate actions for libel on government. State defamation laws, therefore, whether civil or criminal, cannot constitutionally be converted into laws against seditious libel. Our decisions in the New York Times and Garrison cases turned upon that fundamental proposition.1 What the Court says today seems to me fully consonant with those decisions, and I join the Court's opinion and judgment.
37
It is a fallacy, however, to assume that the First Amendment is the only guidepost in the area of state defamation laws. It is not. As the Court says, 'important social values * * * underlie the law of defamation. Society has a pervasive and strong interest in preventing and redressing attacks upon reputation.'
38
The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.
39
We use misleading euphemisms when we speak of the New York Times rule as involving 'uninhibited, robust, and wideopen' debate, or 'vehement, caustic, and sometimes unpleasantly sharp' criticism.2 What the New York Times rule ultimately protects is defamatory falsehood. No matter how gross the untruth, the New York Times rule deprives a defamed public official of any hope for legal redress without proof that the lie was a knowing one, or uttered in reckless disregard of the truth.
40
That rule should not be applied except where a State's law of defamation has been unconstitutionally converted into a law of seditious libel.3 The First and Fourteenth Amendments have not stripped private citizens of all means of redress for injuries inflicted upon them by careless liars.4 The destruction that defamatory falsehood can bring is, to be sure, often beyond the capacity of the law to redeem. Yet, imperfect though it is, an action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored.
41
Moreover, the preventive effect of liability for defamation serves an important public purpose. For the rights and values of private personality far transcend mere personal interests. Surely if the 1950's taught us anything, they taught us that the poisonous atmosphere of the easy lie can infect and degrade a whole society.
42
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurring and dissenting.
43
Respondent Baer managed the financial affairs of a ski recreation center owned and operated by Belknap County, New Hampshire. Petitioner Rosenblatt, an unpaid columnist for a local newspaper, published a column criticizing the past management of the center. Baer thought the column implied dishonest manipulations in his handling of the finances for the center. Charging this he sued Rosenblatt for libel and obtained a verdict for $31,500 which the Supreme Court of New Hampshire affirmed. This Court, relying on New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 and Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, reverses that judgment and remands to the state court under conditions expressed in its opinion that will allow a new trial and another judgment against Rosenblatt. I concur in the reversal but dissent from leaving the case open for a new trial believing that for reasons stated in the concurring opinions of Mr. Justice Douglas and myself in the New York Times and Garrison cases a libel judgment against Rosenblatt is forbidden by the First Amendment which the Fourteenth made applicable to the States.
44
I think the publication here, discussing the way an agent of government does his governmental job, is the very kind that the First Amendment was adopted primarily to protect. The article here sued on as libelous discusses the use of the public's money to take care of the public's business by a paid agent of the public. Unconditional freedom to criticize the way such public functions are performed is in my judgment necessarily included in the guarantees of the First Amendment. And the right to criticize a public agent engaged in public activities cannot safely, and should not, depend upon whether or not that agent is arbitrarily labeled a 'public official.' Nor should the right to criticize depend upon how high a position in government a public agent may occupy. Indeed a large percentage of public moneys expended is distributed by local agents handling local funds as the respondent in this case did. To be faithful to the First Amendment's guarantees, this Court should free private critics of public agents from fear of libel judgments for money just as it has freed critics from fear of pains and penalties inflicted by government.
45
This case illustrates I think what a short and inadequate step this Court took in the New York Times case to guard free press and free speech against the grave dangers to the press and the public created by libel actions. Half-million-dollar judgments for libel damages like those awarded against the New York Times will not be stopped by requirements that 'malice' be found, however that term is defined. Such a requirement is little protection against high emotions and deep prejudices which frequently pervade local communities where libel suits are tried. And this Court cannot and should not limit its protection against such press-destroying judgments by reviewing the evidence, findings, and court rulings only on a case-by-case basis. The only sure way to protect speech and press against these threats is to recognize that libel laws are abridgments of speech and press and therefore are barred in both federal and state courts by the First and Fourteenth Amendments. I repeat what I said in the New York Times case that 'An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment.'
46
Finally, since this case is to be sent back and a new trial may follow, I add one further thought. The Court indicates that in a retrial it will be for the trial judge 'in the first instance' to decide whether respondent is a 'public official.' Statements like this have a way of growing and I fear that the words 'in the first instance' will soon be forgotten. When that happens the rule will be that the Federal Constitution forbids States to let juries decide essentially jury questions in libel cases. After a long fight in England Fox's Libel Act of 1792 was passed and it provided that juries should be the judges of both the law and the facts in libel cases. This was heralded by all lovers of freedom of speech and press as a victory for freedom. This rule was particularly approved in this country where in 1735 John Peter Zenger was prosecuted in a highly publicized trial for criticizing the government of New York. In that case the Chief Justice of the Province of New York got rid of two lawyers who dared defend Zenger by disbarring them. The lawyer who finally defended Zenger, Andrew Hamilton, won imperishable fame in this country by his boldness in telling the jury that they, not the judge, had the right to say whether or not the defendant was guilty. Zenger was acquitted. 17 How.St.Tr. 675. Many of the States familiar with this oppressive practice of denying the jury and granting the judge power to determine the guilt of a defendant in libel cases wrote in their constitutions special provisions to protect the right to trial by jury in such cases. I regret to see the Court take a single step in the direction of holding that a judge rather than the jury is to have the determination of any fact in libel cases. Compare Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.
47
Mr. Justice HARLAN, concurring in part and dissenting in part.
48
I agree with the Court's opinion except for Part II, in which a section of the trial court's charge is characterized as depending upon a 'theory' of 'impersonal' libel, which we held constitutionally impermissible in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710.
49
In New York Times, in addition to establishing a constitutional standard governing actions for defamation of public officials, we went on to examine the evidence in that particular case. We found that 'it was incapable of supporting the jury's finding that the allegedly libelous statements were made 'of and concerning' respondent.' 376 U.S., at 288, 84 S.Ct., at 730. The statements in question, in general terms, attributed misconduct to the police of Montgomery, Alabama, during civil rights activities. The plaintiff in the libel suit, the Commissioner of Public Affairs, pressed his action not on the theory that the statements referred to him, but instead 'solely on the unsupported assumption that, because of his official position,' the statements must be taken as indicating that he had been involved in the misconduct. 376 U.S., at 289, 84 S.Ct., at 731. The Supreme Court of Alabama held that '(i)n measuring the performance or deficiencies of * * * groups (such as the police), praise or criticism is usually attached to the official in complete control of the body,' 273 Ala. 656, at 674—675, 144 So.2d 25, at 39, and allowed the action by the Commissioner.
50
In setting aside the state judgment we noted that this proposition had 'disquieting implications for criticism of governmental conduct,' 376 U.S., at 291, 84 S.Ct., at 732, for it permitted any general statement criticizing some governmental activity to be transmuted into a cause of action for personal libel by the official in charge of that activity. We stated that the liberty of expression embodied in the Fourteenth Amendment forbade a State from permitting 'an otherwise impersonal attack on governmental operations' to be used as the basis of 'a libel of an official responsible for those operations.' 376 U.S., at 292, 84 S.Ct., at 732.
51
This salutary principle has been applied, I believe incorrectly, to the facts of this case. It is true that, on its face, the alleged libel here seems to discuss only the conduct of governmental operations, viz., the comparative improvement in the management of the ski area. However, the theory on which respondent based his claim is that the rhetorical question, 'What happened to all the money last year? and every other year?' was read as accusing him of peculation or culpable mismanagement. The trial court and the Supreme Court of New Hampshire, as well as this Court, have found this a permissible reading of the newspaper article.
52
The charge of the trial court did not leave the jury free to convert an 'impersonal' into a 'personal' libel. The court merely instructed the jury that if it interpreted the article as an accusation of misconduct the jury could find for the plaintiff if either he alone was found to be libeled, or he was one of a small group of persons so libeled.* This is conventional tort law. '(I)f the group is small enough numerically or sufficiently restricted geographically so that people reasonably think the defamatory utterance was directed to or intended to include the plaintiff, there may be a recovery.' 1 Harper & James, Torts § 5, 7, at 367 (1956). See also Prosser, Torts § 106, at 767—768 (1964); Riesman, Democracy and Defamation: Control of Group Libel, 42 Col.L.Rev. 727, 759—760 (1942). The Restatement of Torts § 564, Comment c (1938), includes this aspect of defamation in language very similar to that of the charge in this case:
53
'The size of the class may be so small as to indicate that the plaintiff is the person intended or at least to cast such grave suspicion upon him as to be defamatory of him. Thus, a statement that all members of a school board or a city council are corrupt is sufficiently definite to constitute a defamatory publication of each member thereof. If, however, the group or class disparaged is a large one, some particular circumstances must point to the plaintiff as the person defamed. Thus, a statement that all lawyers are dishonest or that all ministers are liars is not defamatory of any particular lawyer or minister unless the surrounding circumstances indicate that he was the person intended.'
54
This and the trial court's formulation can scarcely be thought too indefinite, for they reflect standards successfully applied over the years in numerous state cases. See, e.g., Gross v. Cantor, 270 N.Y. 93, 200 N.E. 592; cases cited in Harper & James, supra, § 5.7, at 367; and Prosser, supra, § 106, at 767 768. The rule is an eminently sound one.
55
As to the facts at hand, it seems to be agreed—apart of course from the public-official 'malice' rule which would apply in any event—that if the article in question is read by the jury as an accusation of wrongdoing by Baer, he has a good cause of action in libel. I see no reason why that cause of action should fail if the jury finds that the article was read as accusing the three Commissioners along with Baer. This is a very different case from New York Times, where the alleged libel concerned not an identified small group responsible for the running of a particular public enterprise, but a criticism of 'the police' generally in the discharge of their duties. It seems manifest that in instructing the jury as to a 'small group,' the trial judge was not allowing the plaintiff to transform impersonal governmental criticism into an individual cause of action, but was simply referring to this traditional tort doctrine that more than one person can be libeled by the same statement. I cannot understand why a statement which a jury is permitted to read as meaning 'A is a thief' should become absolutely privileged if it is read as meaning 'A, B, C, and D are thieves.'
56
Without receding in any way from our ruling in New York Times that impersonal criticism of government cannot be made a basis for a libel action by an official who heads the branch or agency involved, I dissent from the Court's conclusion that this is such a case. In all other respects I join the Court's opinion.
57
Mr. Justice FORTAS, dissenting.
58
I would vacate the writ in this case as improvidently granted. The trial below occurred before this Court's decision in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710. As a result, the factual record in this case was not shaped in light of the principles announced in New York Times. Particularly in this type of case it is important to observe the practice of relating our decisions to factual records. They serve to guide our judgment and to help us measure theory against the sharp outlines of reality. Especially where our decision furnishes a necessarily Procrustean bed for state law, I think, with all respect, that we should insist upon a relevant factual record. A subsequent trial may conceivably help respondent, but it will be too late to be of assistance to us.
1
N.H.Laws 1959, c. 399.
2
The article purports to compare performance of the ski Area under the direction of unnamed persons during the prior year with performance of the Area under the direction of an identified group—a group which includes not only the new manager of the Area, but the new commissioners as well.
3
See generally Lewis, The Individual Member's Right to Recover for a Defamation Leveled at the Group, 17 U.Miami L.Rev. 519, 523—525 (1963).
4
See Kalven, The New York Times Case: A Note on 'The Central Meaning of the First Amendment,' 1964 Sup.Ct.Rev. 191, 207 210.
5
Such recovery would, of course, be subject to a showing of actual malice if the individual were a 'public official' within the meaning of New York Times.
6
It might be argued that the charge instructed the jury to award recovery only if it found that the libel was aimed at Mr. Baer or if it found the libel aimed at Mr. Baer, along with a few others. Such a charge might not be objectionable; we do not mean to suggest that the fact that more than one person is libeled by a statement is a defense to suit by a member of the group. However, we cannot read the charge as being so limited. The jury was told:
'an imputation of impropriety or a crime to one or some of a small group that casts suspicion upon all is actionable. It is sufficient if Mr. Baer * * * proves * * * that he was one of a group upon whom suspicion was cast * * *; but Mr. Baer has the burden of showing that the defamation, if you find that there was one, either was directed to him or could have been as one of a small group.' (Emphasis supplied.)
The latitude allowed the jury to find defamatory reference in this apparently impersonal discussion of government affairs was thus too broad.
7
See Gilberg v. Goffi, 21 A.D.2d 517, 251 N.Y.S.2d 823 (1964), aff'd, 15 N.Y.2d 1023, 260 N.Y.S.2d 29, 207 N.E.2d 620 (1965); Comment, 114 U.Pa.L.Rev. 241 (1965).
8
The New Hampshire court fully recognized that this was the subject of the column. It instructed the jury:
'You are entitled, I think, to find that the public had a right to be informed about any difficulties or discrepancies in income or thievery at this public area. It's in the public domain. It's public property. * * * Keep in mind that the public has a right to know how their public affairs are being conducted * * *.'
9
See, e.g., Opinion of the Justices, 73 N.H. 621, 62 A. 969, 5 L.R.A., N.S., 415 (1906).
10
For similar reasons, we reject any suggestion that our references in New York Times, 376 U.S., at 282, 283, n. 23, 84 S.Ct., at 727, and Garrison, 379 U.S., at 74, 85 S.Ct., at 215, to Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434, mean that we have tied the New York Times rule to the rule of official privilege. The public interests protected by the New York Times rule are interests in discussion, not retaliation, and our reference to Barr should be taken to mean no more than that the scope of the privilege is to be determined by reference to the functions it serves. See Pedrick, Freedom of the Press and the Law of Libel: The Modern Revised Translation, 49 Cornell L.Q. 581, 590 591 (1964).
11
Compare, e.g., Clancy v. Daily News Corp., 202 Minn. 1, 277 N.W. 264 (1938); Tanzer v. Crowley Publishing Corp., 240 App.Div. 203, 268 N.Y.S. 620 (1934); Poleski v. Polish Am. Publishing Co., 254 Mich. 15, 235 N.W. 841 (1931); 1 Harper & James, Torts § 5.26, pp. 449—450 (1956); Prosser, Torts § 110, p. 815 (3d ed. 1964); Noel, Defamation of Public Officers and Candidates, 49 Col.L.Rev. 875, 896—897, 901—902 (1949); Comment, 113 U.Pa.L.Rev. 284, 288 (1964); Note, 18 Vand.L.Rev. 1429, 1445 (1965).
12
We are treating here only the element of public position, since that is all that has been argued and briefed. We intimate no view whatever whether there are other bases for applying the New York Times standards—for example, that in a particular case the interests in reputation are relatively insubstantial, because the subject of discussion has thrust himself into the vortex of the discussion of a question of pressing public concern. Cf. Salinger v. Cowles, 195 Iowa 873, 889, 191 N.W. 167, 173—174 (1922); Peck v. Coos Bay Times Publishing Co., 122 Or. 408, 420—421, 259 P. 307, 311—312 (1927); Coleman v. MacLennan, 78 Kan. 711, 723—724, 98 P. 281, 285—286, 20 L.R.A., N.S., 361 (1908); Pauling v. News Syndicate Co., 335 F.2d 659, 671 (C.A.2d Cir. 1964).
13
It is suggested that this test might apply to a night watchman accused of stealing state secrets. But a conclusion that the New York Times malice standards apply could not be reached merely because a statement defamatory of some person in government employ catches the public's interest; that conclusion would virtually disregard society's interest in protecting reputation. The employee's position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scruting and discussion occasioned by the particular charges in controversy.
14
It is not seriously contended, and could not be, that the fact respondent no longer supervised the Area when the column appeared has decisional significance here. To be sure, there may be cases where a person is so far removed from a former position of authority that comment on the manner in which he performed his responsibilities no longer has the interest necessary to justify the New York Times rule. But here the management of the Area was still a matter of lively public interest; propositions for further change were abroad, and public interest in the way in which the prior administration had done its task continued strong. The comment, if it referred to respondent, referred to his performance of duty as a county employee.
15
1 Harper & James, Torts § 5.29 (1956); Prosser, Torts § 110, p. 823 (3d ed. 1964), Restatement, Torts § 619. Such a course will both lessen the possibility that a jury will use the cloak of a general verdict to punish unpopular ideas or speakers, and assure an appellate court the record and findings required for review of constitutional decisions. Cf. Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460; New York Times, 376 U.S., at 285, 84 S.St. at 728.
1
And cf. Farmers Education and Co-op Union, etc. v. WDAY, 360 U.S. 525, 79 S.Ct. 1302, 3 L.Ed.2d 1407, holding that a radio station is not liable for defamatory statements made in a speech broadcast over such station under § 315(a) of the Federal Communications Act of 1934 by a candidate for public office.
2
He in fact received no compensation from the Government, but was given $10 per day in lieu of subsistence, plus transportation expenses. See 364 U.S., at 533, 81 S.Ct., at 300.
3
Cf. Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657 where the principle of New York Times Co. v. Sullivan, supra, is extended, via the path of preemption, to the field of labor relations.
4
There is the view that the 'most absolute construction of the First Amendment, as applied to the states by the Fourteenth, would permit a line to be drawn between the spurious common law of seditious libel and the genuine common law of civil liability for defamation of private character.' Brant, The Bill of Rights: Its Origin and Meaning 502—503 (1965). But that ipse dixit overlooks our decisions which, without defining the outer limits, establish that the First Amendment applies to both. Compare New York Times Co. v. Sullivan, supra, with Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125.
5
The complaint was drawn and the trial conducted in conformity with the defamation law as it existed prior to New York Times. Whether the complaint can be amended to conform to the theory of liability announced in New York Times is wholly a matter of state law. See N.H.Rev.Stat.Ann. § 514:9 (1955). Whether there can be a new trial is also wholly a matter of state law. See N.H.Rev.Stat.Ann. § 526:1 (1955). Whether respondent is a 'public official' in the New York Times sense is not ascertainable from the record. We do not even know whether he took an oath of office. So far as we know, he may have been a hybrid in the nature of an independent contractor. Moreover, the oral argument and the briefs were not squarely addressed to the larger and profoundly important questions stirred by this litigation.
6
Cf. Mr. Justice Rutledge in Screws v. United States, 325 U.S. 91, 113, 134, 65 S.Ct. 1031, 1041, 89 L.Ed. 1495.
1
New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710; Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209.
2
See New York Times Co. v. Sullivan, 376 U.S., at 270, 84 S.Ct. at 721.
3
This is not to say that there do not exist situations where for other reasons state defamation laws may be similarly limited. See Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657.
4
Irving Brant has recently made the point well:
'Civil actions for slander and libel developed in early ages as a substitute for the duel and a deterrent to murder. They lie within the genuine orbit of the common law, and in the distribution of American sovereignty they fall exclusively within the jurisdiction of the states. The First Amendment further assures their exclusion from the federal domain. The Fourteenth Amendment, by absorbing the First, unquestionably gives the Supreme Court authority to block state use of civil suits as a substitute for laws of seditious libel. But considering the differences in derivation, in purpose, in value to society, and in the natural location of power, there seems to be no compelling constitutional reason to bar private suits. The most absolute construction of the First Amendment, as applied to the states by the Fourteenth, would permit a line to be drawn between the spurious common law of seditious libel and the genuine common law of civil liability for defamation of private character. It is the misuse of civil liability that offends the Constitution.' Brant, The Bill of Rights: Its Origin and Meaning 502—503 (1965).
*
The trial judge charged the jury as follows:
'An insinuation of a crime is actionable as a positive assertion if the meaning is reasonably plain and clear, and the putting of the words in the form of a question does not change the liability of the defendant if the form and sense of the question is defamatory or derogatory. Now, an imputation of impropriety or a crime to one or some of a small group that casts suspicion upon all is actionable. It is sufficient if Mr. Baer, the plaintiff here, proves on the balance of probabilities by his evidence that he was one of a group upon whom suspicion was cast, and the fact that others in this group might also have been libeled is not a defense; but Mr. Baer has the burden of showing that the defamation, if you find that there was one, either was directed to him or could have been as one of a small group.' R. Vol. V, pp. 148—149.
'Now, as to any part of the article which you, if you do, find defamatory, and that Mr. Baer was intended, or he with a few others was intended, he and a small group, if you find that it was derogatory of him and charged him with a crime, held him up to scorn and ridicule, that he was the fellow, either singly or in a small group, then you can go on to consider—and you should—whether the publication was privileged or justified. * * *' R. Vol. V, pp. 151—152.
| 23
|
383 U.S. 1
86 S.Ct. 684
15 L.Ed.2d 545
William T. GRAHAM et al., Petitioners,v.JOHN DEERE COMPANY OF KANSAS CITY et al. CALMAR, INC., Petitioner, v. COOK CHEMICAL COMPANY. COLGATE-PALMOLIVE COMPANY, Petitioner, v. COOK CHEMICAL COMPANY.
Nos. 11, 37, 43.
Argued Oct. 14, 1965.
Decided Feb. 21, 1966.
[Syllabus from pages 1-2 intentionally omitted]
No. 11:
Orville O. Gold, Kansas City, Mo., for petitioners.
S. Tom Morris, Amarillo, Tex., for respondents.
Nos. 37, 43:
Dennis G. Lyons, Washington, D.C., for petitioners.
Gordon D. Schmidt, Kansas City, Mo., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
After a lapse of 15 years, the Court again focuses its attention on the patentability of inventions under the standard of Art. I, § 8, cl. 8, of the Constitution and under the conditions prescribed by the laws of the United States. Since our last expression on patent validity, Great A. & P. Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162 (1950), the Congress has for the first time expressly added a third statutory dimension to the two requirements of novelty and utility that had been the sole statutory test since the Patent Act of 1793. This is the test of obviousness, i.e., whether '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 to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.' § 103 of the Patent Act of 1952, 35 U.S.C. § 103 (1964 ed.).
2
The questions, involved in each of the companion cases before us, are what effect the 1952 Act had upon traditional statutory and judicial tests of patentability and what definitive tests are now required. We have concluded that the 1952 Act was intended to codify judicial precedents embracing the principle long ago announced by this Court in Hotchkiss v. Greenwood, 11 How. 248, 13 L.Ed. 683 (1851), and that, while the clear language of § 103 places emphasis on an inquiry into obviousness, the general level of innovation necessary to sustain patentability remains the same.
I.
3
The Cases.
4
(a). No. 11, Graham v. John Deere Co., an infringement suit by petitioners, presents a conflict between two Circuits over the validity of a single patent on a 'Clamp for vibrating Shank Plows.' The invention, a combination of old mechanical elements, involves a device designed to absorb shock from plow shanks as they plow through rocky soil and thus to prevent damage to the plow. In 1955, the Fifth Circuit had held the patent valid under its rule that when a combination produces an 'old result in a cheaper and otherwise more advantageous way,' it is patentable. Jeoffroy Mfg., Inc. v. Graham, 219 F.2d 511, cert. denied, 350 U.S. 826, 76 S.Ct. 55, 100 L.Ed. 738. In 1964, the Eighth Circuit held, in the case at bar, that there was no new result in the patented combination and that the patent was, therefore, not valid. 333 F.2d 529, reversing D.C., 216 F.Supp. 272. We granted certiorari, 379 U.S. 956, 85 S.Ct. 652, 13 L.Ed.2d 553. Although we have determined that neither Circuit applied the correct test, we conclude that the patent is invalid under § 103 and, therefore, we affirm the judgment of the Eighth Circuit.
5
(b). No. 37, Calmar, Inc. v. Cook Chemical Co., and No. 43, Colgate-Palmolive Co. v. Cook Chemical Co., both from the Eighth Circuit, were separate declaratory judgment actions, but were filed contemporaneously. Petitioner in Calmar is the manufacturer of a finger-operated sprayer with a 'hold-down' cap of the type commonly seen on grocers' shelves inserted in bottles of insecticides and other liquids prior to shipment. Petitioner in Colgate-Palmolive is a purchaser of the sprayers and uses them in the distribution of its products. Each action sought a declaration of invalidity and noninfringement of a patent on similar sprayers issued to Cook Chemical as assignee of Baxter I. Scoggin, Jr., the inventor. By cross-action, Cook Chemical claimed infringement. The actions were consolidated for trial and the patent was sustained by the District Court. 220 F.Supp. 414. The Court of Appeals affirmed, 8 Cir., 336 F.2d 110, and we granted certiorari, 380 U.S. 949, 85 S.Ct. 1082, 13 L.Ed.2d 967. We reverse.
6
Manifestly, the validity of each of these patents turns on the facts. The basic problems, however, are the same in each case and require initially a discussion of the constitutional and statutory provisions covering the patentability of the inventions.
II.
7
At the outset it must be remembered that the federal patent power stems from a specific constitutional provision which authorizes the Congress 'To promote the Progress of * * * useful Arts, by securing for limited Times to * * * Inventors the exclusive Right to their * * * Discoveries.' Art. I, § 8, cl. 8.1 The clause is both a grant of power and a limitation. This qualified authority, unlike the power often exercised in the sixteenth and seventeenth centuries by the English Crown, is limited to the promotion of advances in the 'useful arts.' It was written against the backdrop of the practices—eventually curtailed by the Statute of Monopolies—of the Crown in granting monopolies to court favorites in goods or businesses which had long before been enjoyed by the public. See Meinhardt, Inventions, Patents and Monopoly, pp. 30—35 (London, 1946). The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which by constitutional command must 'promote the Progress of * * * useful Arts.' This is the standard expressed in the Constitution and it may not be ignored. And it is in this light that patent validity 'requires reference to a standard written into the Constitution.' Great A. & P. Tea Co. v. Supermarket Equipment Corp., supra, 340 U.S. at 154, 71 S.Ct. at 131 (concurring opinion).
8
Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim. This is but a corollary to the grant to Congress of any Article I power. Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23. Within the scope established by the Constitution, Congress may set out conditions and tests for patentability. McClurg v. Kingsland, 1 How. 202, 206, 11 L.Ed. 102. It is the duty of the Commissioner of Patents and of the courts in the administration of the patent system to give effect to the constitutional standard by appropriate application, in each case, of the statutory scheme of the Congress.
9
Congress quickly responded to the bidding of the Constitution by enacting the Patent Act of 1790 during the second session of the First Congress. It created an agency in the Department of State headed by the Secretary of State, the Secretary of the Department of War and the Attorney General, any two of whom could issue a patent for a period not exceeding 14 years to any petitioner that 'hath * * * invented or discovered any useful art, manufacture, * * * or device, or any improvement therein not before known or used' if the board found that 'the invention or discovery (was) sufficiently useful and important * * *.' 1 Stat. 110. This group, whose members administered the patent system along with their other public duties, was known by its own designation as 'Commissioners for the Promotion of Useful Arts.'
10
Thomas Jefferson, who as Secretary of State was a member of the group, was its moving spirit and might well be called the 'first administrator of our patent system.' See Federico, Operation of the Patent Act of 1790, 18 J.Pat.Off.Soc. 237, 238 (1936). He was not only an administrator of the patent system under the 1790 Act, but was also the author of the 1793 Patent Act. In addition, Jefferson was himself an inventor of great note. His unpatented improvements on plows, to mention but one line of his inventions, won acclaim and recognition on both sides of the Atlantic. Because of his active interest and influence in the early development of the patent system, Jefferson's views on the general nature of the limited patent monopoly under the Constitution, as well as his conclusions as to conditions for patentability under the statutory scheme, are worthy of note.
11
Jefferson, like other Americans, had an instinctive aversion to monopolies. It was a monopoly on tea that sparked the Revolution and Jefferson certainly did not favor an equivalent form of monopoly under the new government. His abhorrence of monopoly extended initially to patents as well. From France, he wrote to Madison (July 1788) urging a Bill of Rights provision restricting monopoly, and as against the argument that limited monopoly might serve to incite 'ingenuity,' he argued forcefully that 'the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression,' V Writings of Thomas Jefferson, at 47 (Ford ed., 1895).
12
His views ripened, however, and in another letter to Madison (Aug. 1789) after the drafting of the Bill of Rights, Jefferson stated that he would have been pleased by an express provision in this form:
13
'Art. 9. Monopolies may be allowed to persons for their own productions in literature, & their own inventions in the arts, for a term not exceeding _ _ years, but for no longer term & no other purpose.' Id., at 113.
And he later wrote:
14
'Certainly an inventor ought to be allowed a right to the benefit of his invention for some certain time. * * * Nobody wishes more than I do that ingenuity should receive a liberal encouragement.' Letter to Oliver Evans (May 1807), V Writings of Thomas Jefferson, at 75—76 (Washington ed.).
15
Jefferson's philosophy on the nature and purpose of the patent monopoly is expressed in a letter to Isaac McPherson (Aug. 1813), a portion of which we set out in the margin.2 He rejected a natural-rights theory in intellectual property rights and clearly recognized the social and economic rationale of the patent system. The patent monopoly was not designed to secure to the inventor his natural right in his discoveries. Rather, it was a reward, an inducement, to bring forth new knowledge. The grant of an exclusive right to an invention was the creation of society—at odds with the inherent free nature of disclosed ideas—and was not to be freely given. Only inventions and discoveries which furthered human knowledge, and were new and useful, justified the special inducement of a limited private monopoly. Jefferson did not believe in granting patents for small details, obvious improvements, or frivolous devices. His writings evidence his insistence upon a high level of patentability.
16
As a member of the patent board for several years, Jefferson saw clearly the difficulty in 'drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not.' The board on which he served sought to draw such a line and formulated several rules which are preserved in Jefferson's correspondence.3 Despite the board's efforts, Jefferson saw 'with what slow progress a system of general rules could be matured.' Because of the 'abundance' of cases and the fact that the investigations occupied 'more time of the members of the board than they could spare from higher duties, the whole was turned over to the judiciary, to be matured into a system, under which every one might know when his actions were safe and lawful.' Letter to McPherson, supra, at 181, 182. Apparently Congress agreed with Jefferson and the board that the courts should develop additional conditions for patentability. Although the Patent Act was amended, revised or codified some 50 times between 1790 and 1950, Congress steered clear of a statutory set of requirements other than the bare novelty and utility tests reformulated in Jefferson's draft of the 1793 Patent Act.
III.
17
The difficulty of formulating conditions for patentability was heightened by the generality of the constitutional grant and the statutes implementing it, together with the underlying policy of the patent system that 'the things which are worth to the public the embarrassment of an exclusive patent,' as Jefferson put it, must outweigh the restrictive effect of the limited patent monopoly. The inherent problem was to develop some means of weeding out those inventions which would not be disclosed or devised but for the inducement of a patent.
18
This Court formulated a general condition of patentability in 1851 in Hotchkiss v. Greenwood, 11 How. 248, 13 L.Ed. 683. The patent involved a mere substitution of materials—porcelain or clay for wood or metal in doorknobs—and the Court condemned it, holding:4
19
'(U)nless more ingenuity and skill * * * were required * * * than were possessed by an ordinary mechanic acquainted with the business, there was an absence of that degree of skill and ingenuity which constitute essential elements of every invention. In other words, the improvement is the work of the skilful mechanic, not that of the inventor.' At p. 267.
20
Hotchkiss, by positing the condition that a patentable invention evidence more ingenuity and skill than that possessed by an ordinary mechanic acquainted with the business, merely distinguished between new and useful innovations that were capable of sustaining a patent and those that were not. The Hotchkiss test laid the cornerstone of the judicial evolution suggested by Jefferson and left to the courts by Congress. The language in the case, and in those which followed, gave birth to 'invention' as a word of legal art signifying patentable inventions. Yet, as this Court has observed, '(t)he truth is, the word ('invention') cannot be defined in such manner as to afford any substantial aid in determining whether a particular device involves an exercise of the inventive faculty or not.' McClain v. Ortmayer, 141 U.S. 419, 427, 12 S.Ct. 76, 78, 35 L.Ed. 800 (1891); Great A. & P. Tea Co. v. Supermarket Equipment Corp., supra, 340 U.S., at 151, 71 S.Ct. at 129. Its use as a label brought about a large variety of opinions as to its meaning both in the Patent Office, in the courts, and at the bar. The Hotchkiss formulation, however, lies not in any label, but in its functional approach to questions of patentability. In practice, Hotchkiss has required a comparison between the subject matter of the patent, or patent application, and the background skill of the calling. It has been from this comparison that patentability was in each case determined.
IV.
21
The 1952 Patent Act.
22
The Act sets out the conditions of patentability in three sections. An analysis of the structure of these three sections indicates that patentability is dependent upon three explicit conditions: novelty and utility as articulated and defined in § 101 and § 102, and nonobviousness, the new statutory formulation, as set out in § 103. The first two sections, which trace closely the 1874 codification, express the 'new and useful' tests which have always existed in the statutory scheme and, for our purposes here, need no clarification.5 The pivotal section around which the present controversy centers is § 103. It provides:
23
§ 103. Conditions for patentability; non-obvious subject matter
24
'A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, 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 to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.' The section is cast in relatively unambiguous terms. Patentability is to depend, in addition to novelty and utility, upon the 'non-obvious' nature of the 'subject matter sought to be patented' to a person having ordinary skill in the pertinent art.
25
The first sentence of this section is strongly reminiscent of the language in Hotchkiss. Both formulations place emphasis on the pertinent are existing at the time the invention was made and both are implicitly tied to advances in that art. The major distinction is that Congress has emphasized 'nonobviousness' as the operative test of the section, rather than the less definite 'invention' language of Hotchkiss that Congress thought had led to 'a large variety' of expressions in decisions and writings. In the title itself the Congress used the phrase 'Conditions for patentability; non-obvious subject matter' (italics added), thus focusing upon 'nonobviousness' rather than 'invention.'6 The Senate and House Reports, S.Rep. No. 1979, 82d Cong., 2d Sess. (1952); H.R.Rep. No. 1923, 82d Cong., 2d Sess. (1952), U.S.Code Congressional and Administrative News 1952, p. 2394, reflect this emphasis in these terms:
26
'Section 103, for the first time in our statute, provides a condition which exists in the law and has existed for more than 100 years, but only by reason of decisions of the courts. An invention which has been made, and which is new in the sense that the same thing has not been made before, may still not be patentable if the difference between the new thing and what was known before is not considered sufficiently great to warrant a patent. That has been expressed in a large variety of ways in decisions of the courts and in writings. Section 103 states this requirement in the title. It refers to the difference between the subject matter sought to be patented and the prior art, meaning what was known before as described in section 102. If this difference is such that the subject matter as a whole would have been obvious at the time to a person skilled in the art, then the subject matter cannot be patented.
27
'That provision paraphrases language which has often been used in decisions of the courts, and the section is added to the statute for uniformity and definiteness. This section should have a stabilizing effect and minimize great departures which have appeared in some cases.' H.R.Rep., supra, at 7; S.Rep., supra, at 6.
28
It is undisputed that this section was, for the first time, a statutory expression of an additional requirement for patentability, originally expressed in Hotchkiss. It also seems apparent that Congress intended by the last sentence of § 103 to abolish the test it believed this Court announced in the controversial phrase 'flash of creative genius,' used in Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58 (1941).7
29
It is contended, however, by some of the parties and by several of the amici that the first sentence of § 103 was intended to sweep away judicial precedents and to lower the level of patentability. Others contend that the Congress intended to codify the essential purpose reflected in existing judicial precedents the rejection of insignificant variations and innovations of a commonplace sort—and also to focus inquiries under § 103 upon nonobviousness, rather than upon 'invention,' as a means of achieving more stability and predictability in determining patentability and validity.
30
The Reviser's Note to this section,8 with apparent reference to Hotchkiss, recognizes that judicial requirements as to 'lack of patentable novelty (have) been followed since at least as early as 1850.' The note indicates that the section was inserted because it 'may have some stabilizing effect, and also to serve as a basis for the addition at a later time of some criteria which may be worked out.' To this same effect are the reports of both Houses, supra, which state that the first sentence of the section 'paraphrases language which has often been used in decisions of the courts, and the section is added to the statute for uniformity and definiteness.'
31
We believe that this legislative history, as well as other sources,9 shows that the revision was not intended by Congress to change the general level of patentable invention. We conclude that the section was intended merely as a codification of judicial precedents embracing the Hotchkiss condition, with congressional directions that inquiries into the obviousness of the subject matter sought to be patented are a prerequisite to patentability.
V.
32
Approached in this light, the § 103 additional condition, when followed realistically, will permit a more practical test of patentability. The emphasis on non-obviousness is one of inquiry, not quality, and, as such, comports with the constitutional strictures.
33
While the ultimate question of patent validity is one of law, Great A. & P. Tea Co. v. Supermarket Equipment Corp., supra, 340 U.S. at 155, 71 S.Ct. at 131, the § 103 condition, which is but one of three conditions, each of which must be satisfied, lends itself to several basic factual inquiries. Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness, these inquiries may have relevancy. See Note, Subtests of 'Nonobviousness': A Nontechnical Approach to Patent Validity, 112 U.Pa.L.Rev. 1169 (1964).
34
This is not to say, however, that there will not be difficulties in applying the nonobviousness test. What is obvious is not a question upon which there is likely to be uniformity of thought in every given factual context. The difficulties, however, are comparable to those encountered daily by the courts in such frames of reference as negligence and scienter, and should be amenable to a case-by-case development. We believe that strict observance of the requirements laid down here will result in that uniformity and definiteness which Congress called for in the 1952 Act.
35
While we have focused attention on the appropriate standard to be applied by the courts, it must be remembered that the primary responsibility for sifting out unpatentable material lies in the Patent Office. To await litigation is—for all practical purposes—to debilitate the patent system. We have observed a notorious difference between the standards applied by the Patent Office and by the courts. While many reasons can be adduced to explain the discrepancy, one may well be the free rein often exercised by Examiners in their use of the concept of 'invention.' In this connection we note that the Patent Office is confronted with a most difficult task. Almost 100,000 applications for patents are filed each year. Of these, about 50,000 are granted and the backlog now runs well over 200,000. 1965 Annual Report of the Commission of Patents 13—14. This is itself a compelling reason for the Commissioner to strictly adhere to the 1952 Act as interpreted here. This would, we believe, not only expedite disposition but bring about a closer concurrence between administrative and judicial precedent.10
36
Although we conclude here that the inquiry which the Patent Office and the courts must make as to patentability must be beamed with greater intensity on the requirements of § 103, it bears repeating that we find no change in the general strictness with which the overall test is to be applied. We have been urged to find in § 103 a relaxed standard, supposedly a congressional reaction to the 'increased standard' applied by this Court in its decisions over the last 20 or 30 years. The standard has remained invariable in this Court. Technology, however, has advanced—and with remarkable rapidity in the last 50 years. Moreover, the ambit of applicable art in given fields of science has widened by disciplines unheard of a half century ago. It is but an evenhanded application to require that those persons granted the benefit of a patent monopoly be charged with an awareness of these changed conditions. The same is true of the less technical, but still useful arts. He who seeks to build a better mousetrap today has a long path to tread before reaching the Patent Office.
VI.
37
We now turn to the application of the conditions found necessary for patentability to the cases involved here:
38
A. The Patent in Issue in No. 11, Graham v. John Deere Co.
39
This patent, No. 2,627,798 (hereinafter called the '798 patent) relates to a spring clamp which permits plow shanks to be pushed upward when they hit obstructions in the soil, and then springs the shanks back into normal position when the obstruction is passed over. The device, which we show diagrammatically in the accompanying sketches (Appendix, Fig. 1), is fixed to the plow frame as a unit. The mechanism around which the controversy center is basically a hinge. The top half of it, known as the upper plate (marked 1 in the sketches), is a heavy metal piece clamped to the plow frame (2) and is stationary relative to the plow frame. The lower half of the hinge, known as the hinge plate (3), is connected to the rear of the upper plate by a hinge pin (4) and rotates downward with respect to it. The shank (5), which is bolted to the forward end of the hinge plate (at 6), runs beneath the plate and parallel to it for about nine inches, passes through a stirrup (7), and then continues backward for several feet curving down toward the ground. The chisel (8), which does the actual plowing, is attached to the rear end of the shank. As the plow frame is pulled forward, the chisel rips through the soil, thereby plowing it. In the normal position, the hinge plate and the shank are kept tight against the upper plate by a spring (9), which is atop the upper plate. A rod (10) runs through the center of the spring, extending down through holes in both plates and the shank. Its upper end is bolted to the top of the spring while its lower end is hooked against the underside of the shank.
40
When the chisel hits a rock or other obstruction in the soil, the obstruction forces the chisel and the rear portion of the shank to move upward. The shank is pivoted (at 11) against the rear of the hinge plate and pries open the hinge against the closing tendency of the spring. (See sketch labeled 'Open Position,' Appendix, Fig. 1.) This closing tendency is caused by the fact that, as the hinge is opened, the connecting rod is pulled downward and the spring is compressed. When the obstruction is passed over, the upward force on the chisel disappears and the spring pulls the shank and hinge plate back into their original position. The lower, rear portion of the hinge plate is constructed in the form of a stirrup (7) which brackets the shank, passing around and beneath it. The shank fits loosely into the stirrup (permitting a slight up and down play). The stirrup is designed to prevent the shank from recoiling away from the hinge plate, and thus prevents excessive strain on the shank near its bolted connection. The stirrup also girds the shank, preventing it from fishtailing from side to side.
41
In practical use, a number of spring-hinge-shank combinations are clamped to a plow frame, forming a set of ground-working chisels capable of withstanding the shock of rocks and other obstructions in the soil without breaking the shanks.
42
Background of the Patent.
43
Chisel plows, as they are called, were developed for plowing in areas where the ground is relatively free from rocks or stones. Originally, the shanks were rigidly attached to the plow frames. When such plows were used in the rocky, glacial soils of some of the Northern States, they were found to have serious defects. As the chisels hit buried rocks, a vibratory motion was set up and tremendous forces were transmitted to the shank near its connection to the frame. The shanks would break. Graham, one of the petitioners, sought to meet that problem, and in 1950 obtained a patent, U.S. No. 2,493,811 (hereinafter '811), on a spring clamp where solved some of the difficulties. Graham and his companies manufactured and sold the '811 clamps. In 1950, Graham modified the '811 structure and filed for a patent. That patent, the one in issue, was granted in 1953. This suit against competing plow manufacturers resulted from charges by petitioners that several of respondents' devices infringed the '798 patent. The Prior Art.
44
Five prior patents indicating the state of the art were cited by the Patent Office in the prosecution of the '798 application. Four of these patents, 10 other United States patents and two prior-use spring-clamp arrangements not of record in the '798 file wrapper were relied upon by respondents as revealing the prior art. The District Court and the Court of Appeals found that the prior art 'as a whole in one form or another contains all of the mechanical elements of the 798 Patent.' One of the prior-use clamp devices not before the Patent Examiner—Glencoe—was found to have 'all of the elements.'
45
We confine our discussion to the prior patent of Graham, '811, and to the Glencoe clamp device, both among the references asserted by respondents. The Graham '811 and '798 patent devices are similar in all elements, save two: (1) the stirrup and the bolted connection of the shank to the hinge plate do not appear in '811; and (2) the position of the shank is reversed, being placed in patent '811 above the hinge plate, sandwiched between it and the upper plate. The shank is held in place by the spring rod which is hooked against the bottom of the hinge plate passing through a slot in the shank. Other differences are of no consequence to our examination. In practice the '811 patent arrangement permitted the shank to wobble or fishtail because it was not rigidly fixed to the hinge plate; moreover, as the hinge plate was below the shank, the latter caused wear on the upper plate, a member difficult to repair or replace.
46
Graham's '798 patent application contained 12 claims. All were rejected as not distinguished from the Graham '811 patent. The inverted position of the shank was specifically rejected as was the bolting of the shank to the hinge plate. The Patent Office examiner found these to be 'matters of design well within the expected skill of the art and devoid of invention.' Graham withdrew the original claims and substituted the two new ones which are substantially those in issue here. His contention was that wear was reduced in patent '798 between the shank and the heel or rear of the upper plate.11 He also emphasized several new features, the relevant one here being that the bolt used to connect the hinge plate and shank maintained the upper face of the shank in continuing and constant contact with the underface of the hinge plate.
47
Graham did not urge before the Patent Office the greater 'flexing' qualities of the '798 patent arrangement which he so heavily relied on in the courts. The sole element in patent '798 which petitioners argue before us is the interchanging of the shank and hinge plate and the consequences flowing from this arrangement. The contention is that this arrangement—which petitioners claim is not disclosed in the prior art—permits the shank to flex under stress for its entire length. As we have sketched (see sketch, 'Graham '798 Patent' in Appendix, Fig. 2), when the chisel hits an obstruction the resultant force (A) pushes the rear of the shank upward and the shank pivots against the rear of the hinge plate at (C). The natural tendency is for that portion of the shank between the pivot point and the bolted connection (i.e., between C and D) to bow downward and away from the hinge plate. The maximum distance (B) that the shank moves away from the plate is slight—for emphasis, greatly exaggerated in the sketches. This is so because of the strength of the shank and the short—nine inches or so length of that portion of the shank between (C) and (D). On the contrary, in patent '811 (see sketch, 'Graham '811 Patent' in Appendix, Fig. 2), the pivot point is the upper plate at point (c); and while the tendency for the shank to bow between points (c) and (d) is the same as in '798, the shank is restricted because of the underlying hinge plate and cannot flex as freely. In practical effect, the shank flexes only between points (a) and (c), and not along the entire length of the shank, as in '798. Petitioners say that this difference in flex, though small, effectively absorbs the tremendous forces of the shock of obstructions whereas prior art arrangements failed.
48
The Obviousness of the Differences.
49
We cannot agree with petitioners. We assume that the prior art does not disclose such an arrangement as petitioners claim in patent '798. Still we do not believe that the argument on which petitioners' contention is bottomed supports the validity of the patent. The tendency of the shank to flex is the same in all cases. If free-flexing, as petitioners now argue, is the crucial difference above the prior art, then it appears evident that the desired result would be obtainable by not boxing the shank within the confines of the hinge.12 The only other effective place available in the arrangement was to attach it below the hinge plate and run it through a stirrup or bracket that would not disturb its flexing qualities. Certainly a person having ordinary skill in the prior art, given the fact that the flex in the shank could be utilized more effectively if allowed to run the entire length of the shank, would immediately see that the thing to do was what Graham did, i.e., invert the shank and the hinge plate.
50
Petitioners' argument basing validity on the free-flex theory raised for the first time on appeal is reminiscent of Lincoln Engineering Co. of Illinois v. Stewart-Warner Corp., 303 U.S. 545, 58 S.Ct. 662, 82 L.Ed. 1008 (1938), where the Court called such an effort 'an afterthought. No such function * * * is hinted at in the specifications of the patent. If this were so vital an element in the functioning of the apparatus, it is strange that all mention of it was omitted.' At p. 550, 58 S.Ct. at p. 665. No 'flexing' argument was raised in the Patent Office. Indeed, the trial judge specifically found that 'flexing is not a claim of the patent in suit * * *' and would not permit interrogation as to flexing in the accused devices. Moreover, the clear testimony of petitioners' experts shows that the flexing advantages flowing from the '798 arrangement are not, in fact, a significant feature in the patent.13
51
We find no nonobvious facets in the '798 arrangement. The wear and repair claims were sufficient to overcome the patent examiner's original conclusions as to the validity of the patent. However, some of the prior art, notably Glencoe, was not before him. There the hinge plate is below the shank but, as the courts below found, all of the elements in the '798 patent are present in the Glencoe structure. Furthermore, even though the position of the shank and hinge plate appears reversed in Glencoe, the mechanical operation is identical. The shank there pivots about the underside of the stirrup, which in Glencoe is above the shank. In other words, the stirrup in Glencoe serves exactly the same function as the heel of the hinge plate in '798. The mere shifting of the wear point to the heel of the '798 hinge plate from the stirrup of Glencoe—itself a part of the hinge plate presents no operative mechanical distinctions, much less nonobvious differences.
52
B. The Patent in Issue in No. 37, Calmar, Inc. v. Cook Chemical Co., and in No. 43, Colgate-Palmolive Co. v. Cook Chemical Co.
53
The single patent14 involved in these cases relates to a plastic finger sprayer with a 'hold-down' lid used as a built-in dispenser for containers or bottles packaging liquid products, principally household insecticides. Only the first two of the four claims in the patent are involved here and we, therefore, limit our discussion to them. We do not set out those claims here since they are printed in 220 F.Supp., at 417—418.
54
In essence the device here combines a finger-operated pump sprayer, mounted in a container or bottle by means of a container cap, with a plastic overcap which screws over the top of and depresses the sprayer (see Appendix, Fig. 3). The pump sprayer passes through the container cap and extends down into the liquid in the container; the overcap fits over the pump sprayer and screws down on the outside of a collar mounting or retainer which is molded around the body of the sprayer. When the overcap is screwed down on this collar mounting a seal is formed by the engagement of a circular ridge or rib located above the threads on the collar mounting with a mating shoulder located inside the overcap above its threads.15 The overcap, as it is screwed down, depresses the pump plunger rendering the pump inoperable and when the seal is effected, any liquid which might seep into the overcap through or around the pump is prevented from leaking out of the overcap. The overcap serves also to protect the sprayer head and prevent damage to it during shipment or merchandising. When the overcap is in place it does not reach the cap of the container or bottle and in no way engages it since a slight space is left between those two pieces.
55
The device, called a shipper-sprayer in the industry, is sold as an integrated unit with the overcap in place enabling the insecticide manufacturer to install it on the container or bottle of liquid in a single operation in an automated bottling process. The ultimate consumer simply unscrews and discards the overcap, the pump plunger springs up and the sprayer is ready for use.
56
The Background of the Patent.
57
For many years manufacturers engaged in the insecticide business had faced a serious problem in developing sprayers that could be integrated with the containers or bottles in which the insecticides were marketed. Originally, insecticides were applied through the use of tin sprayers, not supplied by the manufacturer. In 1947, Cook Chemical, an insecticide manufacturer, began to furnish its customers with plastic pump dispensers purchased from Calmar. The dispenser was an unpatented finger-operated device mounted in a perforated cardboard holder and hung over the neck of the bottle or container. It was necessary for the ultimate consumer to remove the cap of the container and insert and attach the sprayer to the latter for use.
58
Hanging the sprayer on the side of the container or bottle was both expensive and troublesome. Packaging for shipment had to be a hand operation, and breakage and pilferage as well as the loss of the sprayer during shipment and retail display often occurred. Cook Chemical urged Calmar to develop an integrated sprayer that could be mounted directly in a container or bottle during the automated filling process and that would not leak during shipment or retail handling. Calmar did develop some such devices but for various reasons they were not completely successful. The situation was aggravated in 1954 by the entry of Colgate-Palmolive into the insecticide trade with its product marketed in aerosol spray cans. These containers, which used compressed gas as a propellent to dispense the liquid, did not require pump sprayers.
59
During the same year Calmar was acquired by the Drackett Company. Cook Chemical became apprehensive of its source of supply for pump sprayers and decided to manufacture its own through a subsidiary, Bakan Plastics, Inc. Initially, it copied its design from the unpatented Calmar sprayer, but an officer of Cook Chemical, Scoggin, was assigned to develop a more efficient device. By 1956 Scoggin had perfected the shipper-sprayer in suit and a patent was granted in 1959 to Cook Chemical as his assignee. In the interim Cook Chemical began to use Scoggin's device and also marketed it to the trade. The device was well received and soon became widely used.
60
In the meanwhile, Calmar employed two engineers, Corsette and Cooprider, to perfect a shipper-sprayer and by 1958 it began to market its SS—40, a device very much similar to Scoggin's. When the Scoggin patent issued, Cook Chemical charged Calmar's SS—40 with infringement and this suit followed.
61
The Opinions of the District Court and the Court of Appeals.
62
At the outset it is well to point up that the parties have always disagreed as to the scope and definition of the invention claimed in the patent in suit. Cook Chemical contends that the invention encompasses a unique combination of admittedly old elements and that patentability is found in the result produced. Its expert testified that the invention was 'the first commercially successful, inexpensive integrated shipping closure pump unit which permitted automated assembly with a container of household insecticide or similar liquids to produce a practical, ready-to-use package which could be shipped without external leakage and which was so organized that the pump unit with its hold-down cap could be itself assembled and sealed and then later assembled and sealed on the container without breaking the first seal.' Cook Chemical stresses the long-felt need in the industry for such a device; the inability of others to produce it; and its commercial success—all of which, contends Cook, evidences the nonobvious nature of the device at the time it was developed. On the other hand, Calmar says that the differences between Scoggin's shipper-sprayer and the prior art relate only to the design of the overcap and that the differences are so inconsequential that the device as a whole would have been obvious at the time of its invention to a person having ordinary skill in the art.
63
Both courts accepted Cook Chemical's contentions. While the exact basis of the District Court's holding is uncertain, the court did find the subject matter of the patent new, useful and nonobvious. It concluded that Scoggin 'had produced a sealed and protected sprayer unit which the manufacturer need only screw onto the top of its container in much the same fashion as a simple metal cap.' 220 F.Supp., at 418. Its decision seems to be bottomed on the finding that the Scoggin sprayer solved the long-standing problem that had confronted the industry.16 The Court of Appeals also found validity in the 'novel 'marriage' of the sprayer with the insecticide container' which took years in discovery and in 'the immediate commercial success' which it enjoyed. While finding that the individual elements of the invention were 'not novel per se' the court found 'nothing in the prior art suggesting Scoggin's unique combination of these old features * * * as would solve the * * * problems which for years beset the insecticide industry.' It concluded that 'the * * * (device) meets the exacting standard required for a combination of old elements to rise to the level of patentable invention by fulfilling the long-felt need with an economical, efficient, utilitarian apparatus which achieved novel results and immediate commercial success.' 336 F.2d, at 114.
64
Only two of the five prior art patents cited by the Patent Office Examiner in the prosecution of Scoggin's application are necessary to our discussion, i.e., Lohse U.S. Patent No. 2,119,884 (1938) and Mellon U.S. Patent No. 2,586,687 (1952). Others are cited by Calmar that were not before the Examiner, but of these our purposes require discussion of only the Livingstone U.S. Patent No. 2,715,480 (1953). Simplified drawings of each of these patents are reproduced in the Appendix, Figs. 4—6, for comparison and description.
65
The Lohse patent (Fig. 4) is a shipper-sprayer designed to perform the same function as Scoggin's device. The differences, recognized by the District Court, are found in the overcap seal which in Lohse is formed by the skirt of the overcap engaging a washer or gasket which rests upon the upper surface of the container cap. The court emphasized that in Lohse '(t)here are no seals above the threads and below the sprayer head.' 220 F.Supp., at 419.
66
The Mellon patent (Fig. 5), however, discloses the idea of effecting a seal above the threads of the overcap. Mellon's device, likewise a shipper-sprayer, differs from Scoggin's in that its overcap screws directly on the container, and a gasket, rather than a rib, is used to effect the seal.
67
Finally, Livingstone (Fig. 6) shows a seal above the threads accomplished without the use of a gasket or washer.17 Although Livingstone's arrangement was designed to cover and protect pouring spouts, his sealing feature is strikingly similar to Scoggin's. Livingstone uses a tongue and groove technique in which the tongue, located on the upper surface of the collar, fits into a groove on the inside of the overcap. Scoggin employed the rib and shoulder seal in the identical position and with less efficiency because the Livingstone technique is inherently a more stable structure, forming an interlock that withstands distortion of the overcap when subjected to rough handling. Indeed, Cook Chemical has now incorporated the Livingstone closure into its own shipper-sprayers as had Calmar in its SS—40.
68
Let us first return to the fundamental disagreement between the parties. Cook Chemical, as we noted at the outset, urges that the invention must be viewed as the overall combination, or putting it in the language of the statute—that we must consider the subject matter sought to be patented taken as a whole. With this position, taken in the abstract, there is, of course, no quibble. But the history of the prosecution of the Scoggin application in the Patent Office reveals a substantial divergence in respondent's present position.
69
As originally submitted, the Scoggin application contained 15 claims which in very broad terms claimed the entire combination of spray pump and overcap. No mention of, or claim for, the sealing features was made. All 15 claims were rejected by the Examiner because (1) the applicant was vague and indefinite as to what the invention was, and (2) the claims were met by Lohse. Scoggin canceled these claims and submitted new ones. Upon a further series of rejections and new submissions, the Patent Office Examiner, after an office interview, at last relented. It is crystal clear that after the first rejection, Scoggin relied entirely upon the sealing arrangement as the exclusive patentable difference in his combination. It is likewise clear that it was on that feature that the Examiner allowed the claims. In fact, in a letter accompanying the final submission of claims, Scoggin, through his attorney, stated that 'agreement was reached between the Honorable Examiner and applicant's attorney relative to limitations which must be in the claims in order to define novelty over the previously applied disclosure of Lohse when considered in view of the newly cited patents of Mellon and Darley, Jr.' (Italics added.)
70
Moreover, those limitations were specifically spelled out as (1) the use of a rib seal and (2) an overcap whose lower edge did not contact the container cap. Mellon was distinguished, as was the Darley patent, infra, n. 18, on the basis that although it disclosed a hold-down cap with a seal located above the threads, it did not disclose a rib seal disposed in such position as to cause the lower peripheral edge of the overcap 'to be maintained out of contacting relationship with (the container) cap * * * when * * * (the overcap) was screwed (on) tightly * * *.' Scoggin maintained that the 'obvious modification' of Lohse in view of Mellon would be merely to place the Lohse gasket above the threads with the lower edge of the overcap remaining in tight contact with the container cap or neck of the container itself. In other words, the Scoggin invention was limited to the use of a rib—rather than a washer or gasket—and the existence of a slight space between the overcap and the container cap.
71
It is, of course, well settled that an invention is construed not only in the light of the claims, but also with reference to the file wrapper or prosecution history in the Patent Office. Hogg v. Emerson, 11 How. 587, 13 L.Ed. 824 (1850); Crawford v. Heysinger, 123 U.S. 589, 8 S.Ct. 399, 31 L.Ed. 269 (1887). Claims as allowed must be read and interpreted with reference to rejected ones and to the state of the prior art; and claims that have been narrowed in order to obtain the issuance of a patent by distinguishing the prior art cannot be sustained to cover that which was previously by limitation eliminated from the patent. Powers-Kennedy Contracting Corp. v. Concrete Mixing & Conveying Co., 282 U.S. 175, 185—186, 51 S.Ct. 95, 99, 75 L.Ed. 278 (1930); Schriber-Schroth Co. v. Cleveland Trust Co., 311 U.S. 211, 220 221, 312 U.S. 654, 61 S.Ct. 235, 239—240, 85 L.Ed. 132 (1940).
72
Here, the patentee obtained his patent only by accepting the limitations imposed by the Examiner. The claims were carefully drafted to reflect these limitations and Cook Chemical is not now free to assert a broader view of Scoggin's invention. The subject matter as a whole reduces, then, to the distinguishing features clearly incorporated into the claims. We now turn to those features.
73
As to the space between the skirt of the overcap and the container cap, the District Court found:
74
'Certainly without a space so described, there could be no inner seal within the cap, but such a space is not new or novel, but it is necessary to the formation of the seal within the hold-down cap.
75
'To me this language is descriptive of an element of the patent but not a part of the invention. It is too simple, really, to require much discussion. In this device the hold-down cap was intended to perform two functions—to hold down the sprayer head and to form a solid tight seal between the shoulder and the collar below. In assembling the element it is necessary to provide this space in order to form the seal.' 220 F.Supp. at 420. (Italics added.)
76
The court correctly viewed the significance of that feature. We are at a loss to explain the Examiner's allowance on the basis of such a distinction. Scoggin was able to convince the Examiner that Mellon's cap contacted the bottle neck while his did not. Although the drawings included in the Mellon application show that the cap might touch the neck of the bottle when fully screwed down, there is nothing—absolutely nothing—which indicates that the cap was designed at any time to engage the bottle neck. It is palpably evident that Mellon embodies a seal formed by a gasket compressed between the cap and the bottle neck. It follows that the cap in Mellon will not seal if it does not bear down on the gasket and this would be impractical, if not impossible, under the construction urged by Scoggin before the Examiner. Moreover, the space so strongly asserted by Cook Chemical appears quite plainly on the Livingstone device, a reference not cited by the Examiner.
77
The substitution of a rib built into a collar likewise presents no patentable difference above the prior art. It was fully disclosed and dedicated to the public in the Livingstone patent. Cook Chemical argues, however, that Livingstone is not in the pertinent prior art because it relates to liquid containers having pouring spouts rather than pump sprayers. Apart from the fact that respondent made no such objection to similar references cited by the Examiner,18 so restricted a view of the applicable prior art is not justified. The problems confronting Scoggin and the insecticide industry were not insecticide problems; they were mechanical closure problems. Closure devices in such a closely related art as pouring spouts for liquid containers are at the very least pertinent references. See, II Walker on Patents § 260 (Deller ed. 1937).
78
Cook Chemical insists, however, that the development of a workable shipper-sprayer eluded Calmar, who had long and unsuccessfully sought to solve the problem. And, further, that the long-felt need in the industry for a device such as Scoggin's together with its wide commercial success supports its patentability. These legal inferences or subtests do focus attention on economic and motivational rather than technical issues and are, therefore, more susceptible of judicial treatment than are the highly technical facts often present in patent litigation. See Judge Learned Hand in Reiner v. I. Leon Co., 285 F.2d 501, 504 (2 Cir. 1960). See also Note, Subtests of 'Nonobviousness': A Nontechnical Approach to Patent Validity, 112 U.Pa.L.Rev. 1169 (1964). Such inquiries may lend a helping hand to the judiciary which, as Mr. Justice Frankfurter observed, is most ill-fitted to discharge the technological duties cast upon it by patent legislation. Marconi Wireless Telegraph Co. of America v. United States, 320 U.S. 1, 60, 63 S.Ct. 1393, 87 L.Ed. 1731 (1943). They may also serve to 'guard against slipping into use of hindsight,' Monroe Auto Equipment Co. v. Heckethorn Mfg. & Supply Co., 332 F.2d 406, 412 (1964), and to resist the temptation to read into the prior art the teachings of the invention in issue.
79
However, these factors do not, in the circumstances of this case, tip the scales of patentability. The Scoggin invention, as limited by the Patent Office and accepted by Scoggin, rests upon exceedingly small and quite non-technical mechanical differences in a device which was old in the art. At the latest, those differences were rendered apparent in 1953 by the appearance of the Livingstone patent, and unsuccessful attempts to reach a solution to the problems confronting Scoggin made before that time became wholly irrelevant. It is also irrelevant that no one apparently chose to avail himself of knowledge stored in the Patent Office and readily available by the simple expedient of conducting a patent search—a prudent and nowadays common preliminary to well organized research. Mast, Foos & Co. v. Stover Mfg. Co., 177 U.S. 485, 20 S.Ct. 708, 44 L.Ed. 856 (1900). To us, the limited claims of the Scoggin patent are clearly evident from the prior art as it stood at the time of the invention.
80
We conclude that the claims in issue in the Scoggin patent must fall as not meeting the test of § 103, since the differences between them and the pertinent prior art would have been obvious to a person reasonably skilled in that art.
81
The judgment of the Court of Appeals in No. 11 is affirmed. The judgment of the Court of Appeals in Nos. 37 and 43 is reversed and the cases remanded to the District Court for disposition not inconsistent with this opinion. It is so ordered.
82
Judgment of Court of Appeals in No. 11 affirmed. Judgment of Court of Appeals in Nos. 37 and 43 reversed and cases remanded to District Court.
83
Mr. Justice STEWART took no part in the consideration or decision of Nos. 37 and 43.
84
Mr. Justice FORTAS took no part in the consideration or decision of these cases.
APPENDIX TO OPINION OF THE COURT.
FIGURE 1.-GRAHAM '798 PATENT
FIGURE 2.-FLEX COMPARISON
FIG. 3. SCOGGIN PATENT 2,870,943
FIG. 4. LOHSE PATENT 2,119,884
FIG. 5. MELLON PATENT 2,586,687
FIG. 6. LIVINGSTONE PATENT 2,715,480
1
The provision appears in the Constitution spliced together with the copyright provision, which we omit as not relevant here. See H.R.Rep.No.1923, 82d Cong., 2d Sess., at 4 (1952); DeWolf, An Outline of Copyright Law, p. 15 (Boston, 1925).
2
'Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.' VI Writings of Thomas Jefferson, at 180—181 (Washington ed.).
3
'(A) machine of which we are possessed, might be applied by every man to any use of which it is susceptible.' Letter to Isaac McPherson, supra, at 181.
'(A) change of material should not give title to a patent. As the making a ploughshare of cast rather than of wrought iron; a comb of iron instead of horn or of ivory * * *.' Ibid.
'(A) mere change of form should give no right to a patent, as a high-quartered shoe instead of a low one; a round hat instead of a three-square; or a square bucket instead of a round one.' Id., at 181—182.
'(A combined use of old implements.) A man has a right to use a saw, an axe, a plane separately; may he not combine their uses on the same piece of wood?' Letter to Oliver Evans, (Jan. 1814), VI Writings of Thomas Jefferson, at 298 (Washington ed.).
4
In historical retrospect, the specific result in Hotchkiss flows directly from an application of one of the rules of the original board of 'Commissioners,' n. 3, second rule, supra.
5
'§ 101. Inventions patentable
'Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.'
§ 102. Conditions for patentability; novelty and loss of right to patent
'A person shall be entitled to a patent unless—
'(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or
'(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in
this country, more than one year prior to the date of the application for patent in the United States, or
'(c) he has abandoned the invention, or
'(d) the invention was first patented or caused to be patented by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application filed more than twelve months before the filing of the application in the United States, or
'(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 applicant for patent, or
'(f) he did not himself invent the subject matter sought to be patented, or
'(g) before the applicant's invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.'
The precursors of these sections are to be found in the Act of February 21, 1793, c. 11, 1 Stat. 318; Act of July 4, 1836, c. 357, 5 Stat. 117; Act of July 8, 1870, c. 230, 16 Stat. 198; Rev.Stat. § 4886 (1874).
6
The corresponding provision in the preliminary draft was titled 'Conditions for patentability, lack of invention' (italics added), Proposed Revision and Amendment of the Patent Laws, Preliminary Draft with Notes, House Committee on the Judiciary (Committee Print, 1950).
7
The sentence in which the phrase occurs reads: '(T)he new device, however useful it may be, must reveal the flash of creative genius not merely the skill of the calling.' At p. 91, 62 S.Ct. at p. 41. Although some writers and lower courts found in the language connotations as to the frame of mind of the inventors, none Hotchkiss specifically, and the reference to 'flash of creative genius' was but a rhetorical embellishment of language going back to 1833. Cf. 'exercise of genius,' Shaw v. Cooper, 7 Pet. 292, 8 L.Ed. 689; 'inventive genius,' Reckendorfer v. Faber, 92 U.S. 347, 23 L.Ed. 719 (1876); Concrete Appliance Co. v. Gomery, 269 U.S. 177, 46 S.Ct. 42, 70 L.Ed. 222; 'flash of thought,' Densmore v. Scofield, 102 U.S. 375, 26 L.Ed. 214 (1880); 'intuitive genius,' Potts v. Creager, 155 U.S. 597, 15 S.Ct. 194, 39 L.Ed. 275 (1895). Rather than establishing a more exacting standard, Cuno merely rhetorically restated the requirement that the subject matter sought to be patented must be beyond the skill of the calling. It was the device, not the invention, that had to reveal the 'flash of creative genius.' See Boyajian, The Flash of Creative Genius, An Alternative Interpretation, 25 J.Pat.Off.Soc. 776, 780, 781 (1943); Pacific Contact Laboratories, Inc. v. Solex Laboratories, Inc., 9 Cir., 209 F.2d 529, 533; Brown & Sharpe Mfg. Co. v. Kar Engineering Co., 1 Cir., 154 F.2d 48, 51—52; In re Shortell, 142 F.2d 292, 295—296, 31 CCPA (Pat.) 1062, 1069.
8
'There is no provision corresponding to the first sentence explicitly stated in the present statutes, but the refusal of patents by the Patent Office, and the holding of patents invalid by the courts, on the ground of lack of invention or lack of patentable novelty has been followed since at least as early as 1850. This paragraph is added with the view that an explicit statement in the statute may have some stabilizing effect, and also to serve as a basis for the addition at a later time of some criteria which may be worked out.
'The second sentence states that patentability as to this requirement is not to be negatived by the manner in which the invention was made, that is, it is immaterial whether it resulted from long toil and experimentation or from a flash of genius.'
9
See Efforts to Establish a Statutory Standard of Invention, Study No. 7, Senate Subcommittee on Patents, Trademarks, and Copyrights, 85th Cong., 1st Sess. (Committee Print, 1958); Hearings, Subcommittee No. 3, House Committee on the Judiciary, on H.R. 3760, 82d Cong., 1st Sess. (1951).
10
The President has appointed a Commission on the Patent System. Executive Order No. 11215, 30 Fed.Reg. 4661 (April 10, 1965). It is hoped that its studies may develop more efficient administrative procedures and techniques that will further expedite dispositions and at the same time insure the strict application of appropriate tests of patentability.
11
In '811, where the shank was above the hinge plate, an upward movement of the chisel forced the shank up against the underside of the rear of the upper plate. The upper plate thus provided the fulcrum about which the hinge was pried open. Because of this, as well as the location of the hinge pin, the shank rubbed against the heel of the upper plate causing wear both to the plate and to the shank. By relocating the hinge pin and by placing the hinge plate between the shank and the upper plate, as in '798, the rubbing was eliminated and he wear point was changed to the hinge plate, a member more easily removed or replaced for repair.
12
Even petitioners' expert testified to that effect:
'Q. Given the same length of the forward portion of the clamp * * * you would anticipate that the magnitude of flex (in '798) would be precisely the same or substantially the same as in 811, wouldn't you?
'A. I would think so.'
13
'Q. * * * Do you regard the small degree of flex in the forward end of the shank that lies between the pivot point and the point of spring attachment to be of any significance or any importance to the functioning of a device such as 798? A. Unless you are approaching the elastic limit, I think this flexing will reduce the maximum stress at the point of pivot there, where the maximum stress does occur. I think it will reduce that. I don't know how much.
'Q. Do you think it is a substantial factor, a factor of importance in the functioning of the structure? A. Not a great factor, no.'
The same expert previously testified similarly in Jeoffoy Mfg., Inc. v. Graham, 219 F.2d 511.
14
The patent is U.S. No. 2,870,943 issued in 1959 to Cook Chemical Co. as assignee of Baxter I. Scoggin, Jr., the inventor. In No. 37, Calmar is the manufacturer of an alleged infringing device, and, in No. 43, Colgate is a customer of Calmar and user of its device.
15
Our discussion here relates to the overcap seal. The container itself is sealed in the customary way through the use of a container gasket located between the container and the container cap.
16
'By the same reasoning, may it not also be said that if (the device) solved a long-sought need, it was likewise novel? If it meets the requirements of being new, novel and useful, it was the subject of invention, although it may have been a sort step, nevertheless it was the last step that ended the journey. The last step is the one that wins and he who takes it when others could not, is entitled to patent protection.' 220 F.Supp., at 421.
The Prior Art.
17
While the sealing feature was not specifically claimed in the Livingstone patent, it was disclosed in the drawings and specifications. Under long-settled law the feature became public property. Miller v. Brass Co., 104 U.S. 350, 352, 26 L.Ed. 783 (1882).
The Invalidity of the Patent.
18
In addition to Livingstone and Mellon, the Examiner cited Slade, U.S. Patent No. 2,844,290 (hold-down cap for detergent cans having a pouring spout); Nilson, U.S. Patent No. 2,118,222 (combined cap and spout for liquid dispensing containers); Darley, Jr., U.S. Patent No. 1,447,712 (containers for toothpaste, cold creams and other semi-liquid substances).
| 78
|
383 U.S. 131
86 S.Ct. 719
15 L.Ed.2d 637
Henry BROWN et al., Petitioners,v.STATE OF LOUISIANA.
No. 41.
Argued Dec. 6, 1965.
Decided Feb. 23, 1966.
[Syllabus from pages 131-132 intentionally omitted]
Carl Rachlin, New York City, for petitioners.
Richard Kilbourne, Clinton, La., for respondent.
Mr. Justice FORTAS announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE and Mr. Justice DOUGLAS join.
1
This is the fourth time in little more than four years that this Court has reviewed convictions by the Louisiana courts for alleged violations, in a civil rights context, of that State's breach of the peace statute. In the three preceding cases the convictions were reversed. Garner v. State of Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207, decided in December 1961, involved sit-ins by Negroes at lunch counters catering only to whites. Taylor v. State of Louisiana, 370 U.S. 154, 82 S.Ct. 1188, 8 L.Ed.2d 395, decided in June 1962, concerned a sit-in by Negroes in a waiting room at a but depot, reserved 'for whites only.' Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471, decided in January 1965, involved the leader of some 2,000 Negroes who demonstrated in the vicinity of a courthouse and jail to protest the arrest of fellow demonstrators. In each of these cases the demonstration was orderly. In each, the purpose of the participants was to protest the denial to Negroes of rights guaranteed them by state and federal constitutions and to petition their governments for redress of grievances. In none was there evidence that the participants planned or intended disorder. In none were there circumstances which might have led to a breach of the peace chargeable to the protesting participants.1
2
In Garner the Court found the record utterly barren of evidence to support convictions under Title 14, Article 103(7) of the Louisiana Criminal Code, which then defined the crime of 'disturbing the peace' in specific detail.2 The record contained no evidence of boisterous or disorderly actions or of 'passive conduct likely to cause a public disturbance.' 368 U.S., at 173 174, 82 S.Ct., at 257. In Taylor, which arose under the Louisiana statute as amended to read in its present form, see p. 138, infra, the Court in a per curiam opinion set aside the convictions despite evidence of 'restlessness' among the white onlookers. Finally, in Cox, the Court held that the fact would not permit application of Louisiana's breach of the peace statute, despite the large scale of the demonstrations and the fact that petitioner's speech occasioned 'grumbling' on the part of white onlookers. Petitioner and the demonstrators as a group, though 'well behaved,' were far from silent, 379 U.S., at 543, 546, 85 S.Ct., at 457, 459.3 As an 'additional reason' why the conviction could not be sustained, the Court, citing Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131, and Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697, held that were the statute to be defined and applied as the Louisiana Supreme Court had done, it would be unconstitutional because the vagueness and breadth of the definition 'would allow persons to be punished merely for peacefully expressing unpopular views.' 379 U.S., at 551, 85 S.Ct., at 462. See Edwards v. South Carolina, supra, 372 U.S., at 237, 83 S.Ct., at 684.
3
Since the present case was decided under precisely the statute involved in Cox but before our decision in that case was announced, it might well be supposed that, without further ado, we would vacate and remand in light of Cox. But because the incident leading to the present convictions occurred in a public library and might be thought to raise materially different questions, we have heard argument and have considered the case in extenso.
4
The locus of the events was the Audubon Regional Library in the town of Clinton, Louisiana, Parish of East Feliciana. The front room of the building was used as a public library facility where patrons might obtain library services. It was a small room, containing two tables and one chair (apart from the branch assistant's desk and chairs), a stove, a card catalogue, and open book shelves. The room was referred to by the regional librarian, Mrs. Perkins, as 'the adult reading-room, the adult service-room.' The library permitted 'registered borrowers' to 'browse' among the books in the room or to borrow books. A 'registered borrower' was one who could produce an identification card showing that he was registered by the Audubon Regional Library. Other space in the building included the headquarters of the regional library.
5
The Audubon Regional Library is operated jointly by the Parishes of East Feliciana, West Feliciana, and St. Helena. It has three branches and two bookmobiles. The bookmobiles served 33 schools, both white and Negro, as well as 'individuals.' One of the bookmobiles was red, the other blue. The red bookmobile served only white persons. The blue bookmobile served only Negroes. It is a permissible inference that no Negroes used the branch libraries.4
6
The registration cards issued to Negroes were stamped with the word 'Negro.' A Negro in possession of such a card was entitled to borrow books, but only from the blue bookmobile. A white person could not receive service from the blue bookmobile. He would have to wait until the red bookmobile came around, or would have to go to a branch library.
7
This tidy plan was challenged on Saturday, March 7, 1964, at about 11:30 a.m. Five young Negro males, all residents of East or West Feliciana Parishes, went into the adult reading or service room of the Audubon Regional Library at Clinton. The branch assistant, Mrs. Katie Reeves, was alone in the room. She met the men 'between the tables' and asked if she 'could help.' Petitioner Brown requested a book, 'The Story of the Negro' by Arna Bontemps. Mrs. Reeves checked the card catalogue, ascertained that the Branch did not have the book, so advised Mr. Brown, and told him that she would request the book from the State Library, that he would be notified upon its receipt and that 'he could either pick it up or it would be mailed to him.' She told him that 'his point of service was a bookmobile or it could be mailed to him.' Mrs. Reeves testified that she expected that the men would then leave; they did not, and she asked them to leave. They did not. Petitioner Brown sat down and the others stood near him. They said nothing; there was no noise or boisterous talking. Mrs. Reeves called Mrs. Perkins, the regional librarian, who was in another room. Mrs. Perkins asked the men to leave. They remained.
8
Neither Mrs. Reeves nor Mrs. Perkins had called the sheriff, but in '10 to 15 minutes' from the time of the arrival of the men at the library, the sheriff and deputies arrived. The sheriff asked the Negroes to leave. They said they would not. The sheriff then arrested them. The sheriff had been notified that morning that members of the Congress of Racial Equality 'were going to sit-in' at the library. Ordinarily, the sheriff testified, CORE tells him when they are going to demonstrate or picket. The sheriff was standing at his 'place of business' when he saw 'these 5 colored males coming down the street.' He saw them enter the library. He called the jail to notify his deputies, and he reached the library immediately after the deputies got there. When the sheriff arrived, there was no noise, no disturbance. He testified that he arrested them 'for not leaving a public building when asked to do so by an officer.'
9
The library obtained the requested book and mailed it to Mr. Brown on March 28, 1964. An accompanying card said, 'You may return the book either by mail or to the Blue Bookmobile.' The reference to the color of the vehicle was obviously not designed to facilitate identification of the library vehicle. The blue bookmobile is for Negroes and for Negroes only.
10
In the course of argument before this Court, counsel for both the State and petitioners stated that the Clinton Branch was closed after the incident of March 7. Counsel for the State also advised the court that the use of cards stamped 'Negro' continues to be the practice of the regional library.
11
On March 25, 1964, Mr. Brown and his four companions were tried and found guilty. Brown was sentenced to pay $150 and costs, and in default thereof to spend 90 days in the parish jail. His companions were sentenced to $35 and costs, or 15 days in jail. The charge was that they had congregated together in the public library of Clinton, Louisiana, 'with the intent to provoke a breach of the peace and under circumstances such that a breach of the peace might be occasioned thereby' and had failed and refused 'to leave said premises when ordered to do so' by the librarian and by the sheriff.
12
The Louisiana breach of peace statute under which they were accused reads as follows: 'Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby: (1) crowds or congregates with others * * * in * * * a * * * public place or building * * * and who fails or refuses to disperse and move on, or disperse or move on, when ordered so to do by any law enforcement officer * * * or any other authorized person * * * shall be guilty of disturbing the peace.'5
13
Under Louisiana law, these convictions were not appealable. See Garner v. Louisiana, supra, 368 U.S. at 161—162, 82 S.Ct. at 250—251, 7 L.Ed.2d 207. Petitioners sought discretionary review by the Louisiana Supreme Court, which denied their application, finding no error. This Court granted certiorari, 381 U.S. 901, 85 S.Ct. 1445, 14 L.Ed.2d 284, and we reverse.
14
We may briefly dispose of certain threshold problems. Petitioners cannot constitutionally be convicted merely because they did not comply with an order to leave the library. See Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90—91, 86 S.Ct. 211, 213, 15 L.Ed.2d 176; Wright v. State of Georgia, 373 U.S. 284, 291—293, 83 S.Ct. 1240, 1245, 1246, 10 L.Ed.2d 349; Johnson v. State of Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195; cf. Cox v. State of Louisiana, supra, 379 U.S. at 579, 85 S.Ct. at 469 (separate opinion of Mr. Justice Black). The statute itself reads in the conjunctive; it requires both the defined breach of peace and an order to move on. Without reference to the statute, it must be noted that petitioners' presence in the library was unquestionably lawful. It was a public facility, open to the public. Negroes could not be denied access since white persons were welcome. Wright v. State of Georgia, supra, 373 U.S. at 292, 83 S.Ct. at 1245; Watson v. City of Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529; Johnson v. Virginia, supra. Petitioners' deportment while in the library was unexceptionable. They were neither loud, boisterous, obstreperous, indecorous nor impolite. There is no claim that, apart from the continuation—for ten or fifteen minutes—of their presence itself, their conduct provided a basis for the order to leave, or for a charge of breach of the peace.
15
We come, then, to the barebones of the problem. Petitioners, five adult Negro men, remained in the library room for a total of ten or fifteen minutes. The first few moments were occupied by a ritualistic request for service and a response. We may assume that the response constituted service, and we need not consider whether it was merely a gambit in the ritual. This ceremony being out of the way, the Negroes proceeded to the business in hand. They sat and stood in the room, quietly, as monuments of protest against the segregation of the library. They were arrested and charged and convicted of breach of the peace under a specific statute.
16
If we compare this situation with that in Garner, we must inevitably conclude that here, too, there is not the slightest evidence which would or could sustain the application of the statute to petitioners. The statute requires a showing either of 'intent to provoke a breach of the peace,' or of 'circumstances such that a breach of the peace may be occasioned' by the acts in question. There is not in this case the slightest hint of either. We need not be beguiled by the ritual of the request for a copy of 'The Story of the Negro.' We need not assume that petitioner Brown and his friends were in search of a book for night reading. We instead rest upon the manifest fact that they intended to and did stage a peaceful and orderly protest demonstration, with no 'intent to provoke a breach of the peace.' See Garner v. State of Louisiana, supra, 368 U.S. at 174, 82 S.Ct. at 257.
17
Nor were the circumstances such that a breach of the peace might be 'occasioned' by their actions, as the statute alternatively provides. The library room was empty, except for the librarians. There were no other patrons. There were no onlookers except for the vigilant and forewarned sheriff and his deputies. Petitioners did nothing and said nothing even remotely provocative. The danger, if any existed, was surely less than in the course of the sit-in at the 'white' lunch counters in Garner. And surely there was less danger that a breach of the peace might occur from Mrs. Katie Reeves and Mrs. Perkins in the adult reading room of the Clinton Branch Library than that disorder might result from the 'restless' white people in the bus depot waiting room in Taylor, or from the 100 to 300 'grumbling' white onlookers in Cox. But in each of these cases, this Court refused to countenance convictions under Louisiana's breach of the peace statute.
18
The argument of the State of Louisiana, however, is that the issue presented by this case is much simpler than our statement would indicate. The issue, asserts the State, is simply that petitioners were using the library room 'as a place in which to loaf or make a nuisance of themselves.' The State argues that the 'test'—the permissible civil rights demonstration—was concluded when petitioners entered the library, asked for service and were served. Having satisfied themselves, the argument runs, that they could get service, they should have departed. Instead, they simply sat there, 'staring vacantly,' and this was 'enough to unnerve a woman in the situation Mrs. Reeves was in.' This is a piquant version of the affair, but the matter is hardly to be decided on points. It was not a game. It could not be won so handily by the gesture of service to this particular request. There is no dispute that the library system was segregated, and no possible doubt that these petitioners were there to protest this fact. But even if we were to agree with the State's ingenuous characterization of the events, we would have to reverse. There was no violation of the statute which petitioners are accused of breaching; no disorder, no intent to provoke a breach of the peace and no circumstances indicating that a breach might be occasioned by petitioners' actions. The sole statutory provision invoked by the State contains not a word about occupying the reading room of a public library for more than 15 minutes, any more than it purports to punish the bare refusal to obey an unexplained command to withdraw from a public street, see Garner, supra, or public building. We can find nothing in the language of the statute, in fact, which would elevate the giving of cause for Mrs. Reeves' discomfort, however we may sympathize with her, to a crime against the State of Louisiana. Cf. Shuttlesworth v. City of Birmingham, 382 U.S. 87, 101, 86 S.Ct. 211, 218 (concurring opinion).
19
But there is another and sharper answer which is called for. We are here dealing with an aspect of a basic constitutional right the right under the First and Fourteenth Amendments guaranteeing freedom of speech and of assembly, and freedom to petition the Government for a redress of grievances. The Constitution of the State of Louisiana reiterates these guaranties. See Art. I, §§ 3, 5. As this Court has repeatedly stated,6 these rights are no confined to verbal expression. They embrace appropriate types of action which certainly include the right in a peaceable and orderly manner to protest by silent and reproachful presence, in a place where the protestant has every right to be, the unconstitutional segregation of public facilities.7 Accordingly, even if the accused action were within the scope of the statutory instrument, we would be required to assess the constitutional impact of its application, and we would have to hold that the statute cannot constitutionally be applied to punish petitioners' actions in the circumstances of this case. See Edwards v. South Carolina, supra, 372 U.S. at 235, 83 S.Ct. at 683. The statute was deliberately and purposefully applied solely to terminate the reasonable, orderly, and limited exercise of the right to protest the unconstitutional segregation of a public facility. Interference with this right, so exercised, by state action is intolerable under our Constitution. Wright v. State of Georgia, supra, 373 U.S. at 292, 83 S.Ct. at 1245.
20
It is an unhappy circumstance that the locus of these events was a public library—a place dedicated to quiet, to knowledge, and to beauty. It is a sad commentary that this hallowed place in the Parish of East Feliciana bore the ugly stamp of racism. It is sad, too, that it was a public library which, reasonably enough in the circumstances, was the stage for a confrontation between those discriminated against and the representatives of the offending parishes. Fortunately, the circumstances here were such that no claim can be made that use of the library by others was disturbed by the demonstration. Perhaps the time and method were carefully chosen with this in mind. Were it otherwise, a factor not present in this case would have to be considered. Here, there was no disturbance of others, no disruption of library activities, and no violation of any library regulations.
21
A State or its instrumentality may, of course, regulate the use of its libraries or other public facilities. But it must do so in a reasonable and nondiscriminatory manner, equally applicable to all and administered with equality to all. It may not do so as to some and not as to all. It may not provide certain facilities for whites and others for Negroes. And it may not invoke regulations as to use—whether they are ad hoc or general—as a pretext for pursuing those engaged in lawful, constitutionally protected exercise of their fundamental rights. Cf. Wright v. State of Georgia, supra, 373 U.S. at 293, 83 S.Ct. at 1246.
22
The decision below is reversed.
23
Reversed.
24
Mr. Justice BRENNAN, concurring in the judgment.
25
Petitioners were charged with and convicted of violating the Louisiana statute, § 14:103.1, which provides:
26
'Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby * * * crowds or congregates with others * * * in or upon * * * a public street or public highway, or upon a public sidewalk, or any other public place or building * * * and who fails or refuses to disperse and move on * * * when ordered so to do by any law enforcement officer of any municipality, or parish, in which such act or acts are committed, or by any law enforcement officer of the state of Louisiana, or any other authorized person * * * shall be guilty of disturbing the peace.' La.Rev.Stat. § 14:103.1 (Cum.Supp.1962).
27
In Cox v. State of Louisiana, 379 U.S. 536, 551—552, 85 S.Ct. 453, 463, 13 L.Ed.2d 471, the Court declared this statute as construed unconstitutional for overbreadth: it 'is unconstitutional in that it sweeps within its broad scope activities that are constitutionally protected free speech and assembly.' This holding was concurred in by my Brothers Black, 379 U.S. 559, at 576—580, 85 S.Ct. 466, at 467—470, Harlan and White, id., at 591, 85 S.Ct. at 475. No limiting construction1 or legislative revision2 has intervened, and no circumstance of this case makes that declaration of invalidity less controlling here. The overbreadth of the statute recognized in Cox therefore requires the reversal of these convictions.
28
The appellants in Cox were convicted for their conduct on public streets and sidewalks, while petitioners here were convicted for their conduct in a public library. Because of this it is contended in dissent, post, p. 157, that Cox and this case involve different 'phases' of § 14:103.1—a 'public street and sidewalk phase' in contrast to a 'public building phase.' Insofar as this dissection of the statute is meaningful, it does not make the holding of Cox inapplicable;3 both phases are overbroad and the overbreadth of each poses a serious threat to the exercise of constitutional rights.
29
First. The overbreadth of § 14:103.1 discerned in Cox did not inhere in the terms 'public street' or 'public sidewalk'; it inhered in the phrase 'breach of the peace' as interpreted by the Supreme Court of Louisiana to mean 'to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet.' 379 U.S., at 551, 85 S.Ct. at 462. Nothing in the Louisiana courts' decisions in this case rejects this interpretation of the phrase 'breach of the peace' for the public building phase of s 14:103.; nor is there anything about a public building that would make this definition of the proscribed conduct inapplicable.
30
The public building phase of § 14:103.1, especially when read in context of the other phases, is not, contrary to the dissent's suggestion, post, p. 162, restricted to, nor even aimed at, 'trespassers on government property'; Louisiana has a separate criminal statute, not at all involved in this prosecution, which explicitly deals with trespassing in public buildings.4 Moreover, I reject the suggestion that this breach of the peace statute, making refusal to obey an order 'to disperse and move on' an element of the crime, is as narrow as a sufficiently specific trespass statute explicitly concerned with trespassing on government property that also makes refusal to obey an order to keep off or leave the property an element of the crime. Because this statute seeks to curb breaches of the peace and risks of such breaches occurring through crowding, it apparently permits a wide range of persons to issue the requisite order, no formal or customary procedures need be followed in issuing the order, and instantaneous and unquestioning compliance with the order is required. For example, the trial court below, in applying § 14:103.1, assumed that as a matter of state law any employee of the library would have the authority to issue the order 'to disperse and move on' simply as the occasion arose and that petitioners were expected to immediately comply with the order even though they might have reasonably thought they were being ejected simply to preserve the segregated character of the library. Cf. Wright v. State of Georgia, 373 U.S. 284, 291—292, 83 S.Ct. 1240, 1245—1246, 10 L.Ed.2d 349.
31
Second. The danger posed by the Louisiana courts' definition of 'breach of the peace'—that it might sweep within its broad scope activities that are constitutionally protected—is no less present when read in conjunction with 'public building' than when read with 'public street' and 'public sidewalk.' The constitutional protection for conduct in a public building undertaken to desegregate governmental services provided therein derives from both the First Amendment guarantees of freedom of speech, petition and assembly,5 and the Equal Protection Clause's prohibition against racial segregation of governmental services and facilities. Overbreadth in the public building phase might inhibit the exercise of these constitutional rights by threatening punishment of the initial efforts to secure such desegregation. For example, the public building phase of § 14:103.1 might be read as reaching the conduct of two Negroes who did nothing more than enter a library restricted to whites, request a book and refuse to leave when ordered to do so before service was rendered. The conduct of the two Negroes would be as constitutionally protected as the conduct of the Negro who refused to leave the white section of a segregated courtroom, Johnson v. State of Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195, and yet their conduct would be punishable under § 14:103.1 because their purpose could be deemed 'to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet.'
32
In light of these possible clearly unconstitutional applications of the statute, we need not decide whether petitioners' actual conduct is constitutionally protected; for 'in appraising a statute's inhibitory effect upon such rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts besides that at bar.' N.A.A.C.P. v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 337, 9 L.Ed.2d 405. It suffices that petitioners' conduct was arguably constitutionally protected and was 'not the sort of 'hard-core' conduct that would obviously be prohibited under any construction'6 of § 14:103.1. It was engaged in to achieve desegregation of the library through a request for service and a protest, expressed by petitioners' continued presence. Petitioners were orderly and quiet. Their continued presence, for a relatively short period of time, did not interfere with the functioning of the library. Their presence might have embarrassed and unnerved the librarians, who had in the past faithfully observed the policy of segregation; but such 'vague disquietudes'7 do not take petitioners' conduct outside the appropriate limits. The sheriff gave petitioners no reason for the order to leave,8 and thus petitioners might have reasonably believed that they were being ejected only because they were Negroes seeking to exercise their constitutional rights;9 as my Brother Black observed in Feiner v. People of State of New York, 340 U.S. 315, 327, 71 S.Ct. 303, 310, 95 L.Ed. 265, 'at least where time allows, courtesy and explanation of commands are basic elements of good official conduct in a democratic society.'
33
Since the overbreadth of § 14:103.1 as construed clearly requires the reversal of these convictions,10 it is wholly unnecessary to reach, let alone rest reversal, as the prevailing opinion seems to do, on the proposition that even a narrowly drawn 'statute cannot constitutionally be applied to punish petitioners' actions in the circumstances of this case.'
34
Mr. Justice WHITE, concurring in the result.
35
Were it clear from this record that lingering in a public library for 10 minutes after ordering a wanted book contravened some explicit statute, ordinance, or library regulation of general application, or even if it were reasonably clear that a 10-minute interlude between receiving service and departure exceeded what is generally contemplated as a normal use of a public library, I would have difficulty joining in a reversal of this case, for in either of these events, I would consider a refusal to leave the library and an insistence upon violating a generally applicable condition concerning the use of the library evidence of an intent to breach the peace constitutionally sufficient to sustain a conviction. Nor would I deem the First Amendment to forbid a municipal regulation limiting loafing in library reading rooms.
36
But nothing of the kind comes through to me in this record. There is no such ordinance or regulation and it can hardly be said that the brief sojourn in this parish library departed so far from the common practice of library users. The petitioners were there but a very brief period before being asked to leave, they were quiet and orderly, they interfered with no other library users and for all this record reveals they might have been considering among themselves what to do with the rest of their day. I think that the petitioners were entitled to be where they were for the time that they remained, and it is difficult to believe that if this group had been white its members would have been asked to leave on such short notice, much less asked to leave by the sheriff and arrested, rather than merely escorted from the building, when reluctance to leave was demonstrated. That the library was a segregated institution and was not in the habit of allowing Negroes in the building only underlines this situation. In my view, the behavior of these petitioners and their use of the library building, even though it was for the purposes of a demonstration, did not depart significantly from what normal library use would contemplate.
37
The conclusion that petitioners were making only a normal and authorized use of this public library requires the reversal of their convictions. Petitioners' entering the library and refusing to forgo a use of the library normally permitted members of the public is no evidence, in the circumstances of this case, of any intent to breach the peace. Moreover, if the petitioners were making a use of the library normally permitted whites, why were they asked to leave the library? They were quiet, orderly, and exhibited no threatening or provocative behavior. The library had been a segregated institution, has been closed since the incident involved in this case, and the petitioners were advised they could pick up the desired book at the blue bookmobile. The State arrested petitioners because they refused to leave the library but offers no convincing explanation for why they were asked to leave. On this record, it is difficult to avoid the conclusion that petitioners were asked to leave the library because they were Negroes. If they were, their convictions deny them equal protection of the laws.
38
Mr. Justice BLACK, with whom Mr. Justice CLARK, Mr. Justice HARLAN, and Mr. Justice STEWART join dissenting.
39
I do not believe that any provision of the United States Constitution forbids any one of the 50 States of the Union, including Louisiana, to make it unlawful to stage 'sit-ins' or 'stand-up' in their public libraries for the purpose of advertising objections to the State's public policies. That, however, is precisely what the Court or at least a majority of the Court majority1 here holds that all the States are forbidden to do by our Constitution. I dissent. The three opinions written for the majority of five who reverse these convictions make it necessary for me to state the relevant facts, circumstances, and issues in this case as I view them.
40
Representatives of the Congress of Racial Equality (CORE) claimed that Negroes had been 'locked out' of libraries operated jointly by three Louisiana parishes. A 'demonstration was planned' by the organization 'to integrate the Library,' and accordingly these five petitioners, all Negroes, went to the Audubon Regional Library located at Clinton, Louisiana, on a Saturday morning about 11:30 'to sit-in at the Library.' The county sheriff, whose office was in the courthouse within sight of the library building, had received information that 'they (referring to CORE) were going to sit-in, or that something was going to take place at the Library that morning,' and noticed the petitioners when they went by his office on their way to the library. Upon arrival at the library petitioners were met inside the building by Mrs. Reeves, who was the assistant librarian. She courteously asked them if she could help them in any way. One of the group, petitioner Brown, handed her a slip of paper on which was written the title of a book which he said he wanted. Mrs. Reeves went to her shelves and her catalogues, and after making a search, came back and told Mr. Brown that the library did not have the book, but that she could request it from the state library and probably get it for him. She told him she would do this. Mr. Brown then sat down in the only chair in the library room other than the chair at Mrs. Reeves' desk, and the other four petitioners stood around him. When petitioners did not leave, Mrs. Reeves told the group again that she would send for the book, and when Mr. Brown continued to sit and the others continued to stand, she asked them to leave. They did not leave, so Mrs. Reeves then called Mrs. Perkins, the regional librarian and told Mrs. Perkins about the situation. Mrs. Perkins went to Mr. Brown and told him she did not know whether he understood that a request for the book he had asked for would be sent to the state library. Along about that time Mr. Brown said to Mrs. Perkins, 'what about the Constitution?' but did not request that any copy of the Constitution be given to him. Mrs. Perkins then repeated the request of Mrs. Reeves that petitioners leave the library telling them 'that the one who seemed to want something had been served.' About 10 or 15 minutes after the petitioners came to the library, when according to Mrs. Perkins' testimony she was just about to call the sheriff over the phone, the sheriff came into the library. Mrs. Perkins explained to him that Mrs. Reeves had taken petitioners' application for the book they wanted, that the book was not available, that she and Mrs. Reeves had both requested the petitioners to leave, and that they would not do so. After learning these facts, the sheriff also asked petitioners to leave the library building and stated that he would have to arrest them if they did not. The petitioners refused to leave, and speaking for the group petitioner Brown told the sheriff 'that he was not going to leave the Library.' Thereupon the sheriff immediately arrested all of them. Petitioners, while in the library, never talked in unusually loud voices and used no bad language. Beyond Mr. Brown's request for the book which the library did not have, none of the petitioners at any time prior to his arrest requested any further service of either of the librarians, nor did any petitioner in any other way seek to read in the library or otherwise use any of the library's facilities except for sitting and standing purposes.
41
The Clinton branch of the Audubon Regional Library is not a large one. It appears to be used almost entirely as a circulating and not a reading library. The duty of Mrs. Reeves, assistant librarian, according to her testimony which was not disputed, was 'To assist people who come into the Library to select their books; check out the books to them; to keep the shelves in order, and to keep a record of the circulation of the day.' In the library's 'lobby,' where the events of this case took place, there were book shelves and one table on each side; also in the room were a desk and chair for the librarian, and one other chair. The two tables were used mainly for book display and magazines. It was not against the policy of the library to allow citizens with library registration cards to read if they cared to. But according to Mrs. Reeves' testimony at trial, 'very few people read; if a book is there and they want it, they take it and go.' Mrs. Perkins testified that 'We do not maintain a reading-room, as such, we do not have the space for it.' Mrs. Perkins later referred to the 'lobby' as the 'adult reading-room, the adult service-room.'
42
The particular part of the Louisiana statute,2 under which petitioners were convicted, contrary to implications in the other opinions, has never been before this Court previous to this time. It provides as follows:
43
'Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby * * * congregates with others * * * in any * * * public building * * *, and who fails or refuses to * * * move on, when ordered so to do by any law enforcement officer of any municipality * * * or any other authorized person * * * shall be guilty of disturbing the peace.'
44
The information against these petitioners charged, substantially in the language of the statute, that petitioners failed and refused to leave the library when ordered to do so by Mrs. Perkins who was in lawful charge of the library and also failed to leave the premises when ordered to do so by the sheriff.
45
Because I think that the crucial issues to be decided here are much narrower and far less complicated than the prevailing opinion implies, I find it necessary first to point out that several matters discussed in that opinion are, in my judgment, either irrelevant, or do not justify the inferences drawn from them.
I.
46
In concluding to reverse these convictions the prevailing opinion relies almost entirely on three prior breach of the peace cases which have come to this Court from the State of Louisiana, and Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697. I think that none of these four cases has any appreciable bearing on what the Court should hold in this case.
47
(a) The first of these cases is Garner v. State of Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207, decided in December 1961. That case, involving 'sit-in' demonstrations at several lunch counters, was decided under an old Louisiana breach of the peace statute. The section involved here was added to the old law after the events described in that case took place, but before the Court's opinion. The old law considered in Garner did not contain any phrase similar to the one under consideration here which makes it an offense to disturb the peace by congregating in a public building over the protest of a person rightfully in charge of the building. Moreover, the majority of the Court in Garner, in construing the old law, noted the presence of the new section, and expressly contrasted its reach with that of the older statute. 368 U.S., at 168—169, 82 S.Ct., at 254—255. There are other significant differences between Garner and this case, but the fact that Garner involved an almost entirely different statute, which was expressly distinguished from the present one by the Court's opinion, makes it hard for me to see how the Court's Garner holding can provide any meaningful support for the reversal of these convictions.
48
(b) The second Louisiana breach of the peace case upon which the prevailing opinion relies for reversal is Taylor v. State of Louisiana, 370 U.S. 154, 82 S.Ct. 1188, 8 L.Ed.2d 395. That case as described today in the prevailing opinion 'concerned a sit-in by Negroes in a waiting room at a bus depot, reserved 'for whites only." In Taylor, the Court in a short per curiam opinion held merely that the breach of the peace convictions could not be supported where 'the only evidence to support the charge was that petitioners were violating a custom that segregated people in waiting rooms according to their race' contrary to federal law. 370 U.S., at 156, 82 S.Ct. at 1189. There was no indication in that case that persons, having no business whatever in a bus depot except in stage a public protest against some state policy, have a constitutional right to occupy the depot's space after having been requested by competent authorities to leave.
49
(c) The case relied on most heavily by the prevailing opinion and my Brother Brennan is Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471. That case, unlike this one, involved picketing and patrolling in the streets, and correspondingly that part of the Louisiana breach of the peace statute which prohibited certain kinds of street activity. The language of the phase of the statute under consideration here, relating to congregating in public buildings and refusing to move on when ordered to do so by an authorized person, was in no way involved or discussed in Cox. The problems of state regulation of the streets on the one hand, and public buildings on the other, are quite obviously separate and distinct. Public buildings such as libraries, schoolhouses, fire departments, courthouses, and executive mansions are maintained to perform certain specific and vital functions. Order and tranquility of a sort entirely unknown to the public streets are essential to their normal operation. Contrary to the implications in the prevailing opinion it is incomprehensible to me that a State must measure disturbances in its libraries and on the streets with identical standards. Furthermore, the vice of discriminatory enforcement, which contaminates the 'public street' phase of this statute,3 does not beset the statute's application to activity in public buildings. In the public building, unlike the street, peace and quiet is a fast and necessary rule, and as a result there is much less room for peace officers to abuse their authority in enforcing the 'public building' part of the statute.
50
In my Brother BRENNAN's separate concurring opinion the contention seems to be made that in Cox this Court declared as unconstitutionally vague not only the part of the Louisiana statute under which Cox was convicted relating to picketing in the streets, but also the part creating the offense under which petitioners here were convicted. If this is true it means that in Cox the Court declared unconstitutional both the parts of the statute creating the offenses involved in the Cox case and this one, and also all of the some 30-odd separate and diverse offenses enumerated in the statute ranging from the making of obscene remarks and gestures, to causing a disturbance on a public bus, to refusing to leave the private premises of another when asked to do so by the owner. If the Court's holding was that broad it has placed in great jeopardy every breach of the peace statute in this country. I do not think the Court intended to do any such thing. I can see nothing in the Court's opinion in Cox or in any of the concurring opinions, one of which I wrote, which indicates an intention to make such a sweeping condemnation of breach of the peace statutes. In Cox this Court held unconstitutional the part of the statute under which Cox was convicted because as construed by the Louisiana Supreme Court it authorized 'persons to be punished merely for peacefully expressing unpopular views.' 379 U.S., at 551, 85 S.Ct., at 462. The part of the statute involved here which makes it an offense to congregate in a public building and refuse to leave it when asked to do so by an authorized person, does not affect or threaten in any way an exercise of the rights of free speech, and the Louisiana courts did not so construe this phase of the statute as they had construed the part under which Cox was convicted. The phase of the statute under scrutiny in this case clearly and precisely regulates certain particular conduct in language which taken as a whole has no ambiguity whatever. Persons of ordinary intelligence would have no difficulty whatever in knowing that this part of the statute requires them to move on from a public building when an authorized person asks them to do so. See United States v. Petrillo, 332 U.S. 1, 5—8, 67 S.Ct. 1538, 1540—1542, 91 L.Ed. 1877. The only conduct reached by this part of the statute is a refusal to move on when requested to do so by an authorized person and this conduct is described in words declared in Cox to be 'narrow and specific.'4 379 U.S., at 551, 85 S.Ct., at 462. Since petitioners here had no library business whatever the Constitution of the United States does not require that they be permitted to remain in the library despite state law to the contrary.
51
(d) The fourth case which the prevailing opinion cites as indicating that the 'public building' phase of the Louisiana statute is unconstitutional is Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697. This Court's holding in the Edwards case, however, was based on the fact that the statute construed there was not narrowly drawn to assure its nondiscriminatory application. Here the part of the Louisiana statute relating to public buildings, as construed and applied by the Louisiana courts, does clearly describe the offense. Nothing in Edwards as I read it, states any principle of constitutional law under which a State must permit its public libraries, dedicated to reading and learning and studying, to be used for the purpose of conducting protests against public or private policies. And that is the constitutional issue in the present case.
52
I find nothing in these four cases, nor in any other case decided by this Court that I can recall, which restricts Louisiana's power to enforce that part of its statute on which these convictions rest in order to maintain peace and order in its public libraries so as to further the extremely necessary purposes underlying their existence.
II.
53
The prevailing opinion and to some extent the two separate concurring opinions treat this case as though Louisiana was here attempting to enforce a policy of denying Louisiana citizens the right to use the State's libraries on account of race. Whatever may have been the policy of the State of Louisiana in the past or may be the policy of that State at the present, at other places or in other circumstances, there simply was no racial discrimination practiced in this case. These petitioners were treated with every courtesy and granted every consideration to which they were entitled in the Audubon Regional Library. They asked for a book, perhaps as the prevailing opinion suggests more as a ritualistic ceremonial than anything else. The lady in charge nevertheless hunted for the book, found she did not have it, sent for it, and later obtained it from the state library for petitioners' use.5 No petitioner asked for any other book, none indicated that he wanted to read any other book, and none attempted to read any other book or any other printed matter. As a matter of fact the record shows, and the prevailing opinion admits, that the five petitioners stayed in the library not to use it for learning but as 'monuments of protest' to voice their disapproval of what they thought was a policy of the State. Although Mrs. Perkins, the branch's librarian, testified unambiguously that there was no racial discrimination practiced at her library, and although the record shows without the slightest dispute that there was no discrimination of any kind or character practiced against these petitioners, in at least the prevailing opinion and that of my Brother White it is nevertheless implied at several places that the equal treatment given these petitioners was some kind of subterfuge or sham. These aspersions are I think wholly without justification. The prevailing opinion refers to the 'tidy plan' of the State; with reference to the service given petitioners it says that 'We may assume that the response constituted service, and we need not consider whether it was merely a gambit in the ritual'; it insinuates that Louisiana was playing a 'game' with petitioners' rights, and the courteous treatment given petitioners by the librarian is degraded by calling it a 'gesture of service'; it, moreover, refers to the State's argument in this case as giving a 'piquant version of the affair.' I see no basis or reason for these innuendos against the State's defense of its convictions in this case. The State's District Attorney, who argued the case before us, stated frankly and forthrightly that there would be no defense had Louisiana denied these petitioners equal service at its public libraries on account of their race. There was no such denial. We must now consider the Court's reversal on its merits.
III.
54
As best I can tell, one ground upon which both the prevailing opinion and that of my Brother White rely to reverse these convictions is that the State failed to prove its case. This conclusion appears to be based on the assumption that under the Louisiana statute properly construed, there can be no conviction unless persons who do not want library service stay there an unusually long time after being ordered to leave, make a big noise, use some bad language, engage in fighting, try to provoke a fight, or in some other way become boisterous. The argument seems to be that without a blatant, loud manifestation of aggressive hostility or an exceedingly long 'sit-in' or 'sojourn' in a public library, there are no circumstances which could foreseeably occasion a breach of the peace. Louisiana has not so construed its statute nor should we. Doing so goes against common sense and common understanding. While soft words can undoubtedly turn away wrath, they may also provoke it. Disturbers of the peace do not always rattle swords or shout invectives. It is high time to challenge the assumption in which too many people have too long acquiesced, that groups that think they have been mistreated or that have actually been mistreated have a constitutional right to use the public's streets, buildings, and property to protest whatever, wherever, whenever they want, without regard to whom such conduct may disturb.
55
The phase of the Louisiana statute that we are considering here is to all intents and purposes aimed at trespassers on government property. In addition, subdivision (4) of the same Louisiana law makes it an offense for one to refuse to leave the premises of another when requested to do so by the owner. Both of these provisions of the state statute, however, provide that before an offense is committed, the conduct must be engaged in 'with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby.' There is a long history behind trespass laws in the United States. Invasion of another man's property over his protest is one of the surest ways any person can pick out to disturb the peace. Louisiana, just like any other State in this Union, has a right to pass and use laws based on knowledge of this fact, a knowledge so widespread and prevalent that it would probably be difficult to find a hermit ignorant of its existence.
56
I think that the evidence in this case established every element in the offense charged against petitioners. No one disputes the fact that petitioners congregated in a public building and refused to move on when ordered to do so by authorized persons. The only factual question which can possibly arise regarding the application of the statute here is whether under Louisiana law petitioners either intended to breach the peace or created circumstances under which a breach might have been occasioned. The record shows that petitioners, as part of a plan, entered the library and once there stayed despite the librarians' protests until its normal activity was completely disrupted. To be sure, there were not '100 to 300 'grumbling' white onlookers' as there were in Cox v. State of Louisiana, supra, but surely, in the prevailing opinion's futile effort to rely on Cox, it is not meant that 300 or 100 grumbling onlookers must be crowded into a library before Louisiana can maintain an action under this statute. A tiny parish branch library, staffed by two women, is not a department store as in Garner v. State of Louisiana, supra, nor a bus terminal as in Taylor v. State of Louisiana, supra, nor a public thoroughfare as in Edwards v. South Carolina, supra, and Cox. Short of physical violence, petitioners could not have more completely upset the normal, quiet functioning of the Clinton branch of the Audubon Regional Library. The state courts below thought the disturbance created by petitioners constituted a violation of the statute. So far as the reversal here rests on a holding that the Louisiana statute was not violated, the Court simply substitutes its judgment for that of the Louisiana courts as to what conduct satisfies the requirements of that state statute. We are a long way off from what happened there to substitute our judgment for theirs. To do so not only upsets settled doctrine concerning the interpretation of state statutes by federal courts, see, e.g., Garner v. State of Louisiana, supra, 368 U.S. at 166, 82 S.Ct. at 253; Kingsley Intern. Pictures Corp. v. Regents of University, 360 U.S. 684, 688, 79 S.Ct. 1362, 1365, 3 L.Ed.2d 1512, but also builds on shifting sands that ignore the realities of life in our country.
IV.
57
Having already attempted to hold, wrongfully I think, that these convictions should be set aside as unconstitutional because of a complete lack of evidence to prove the charge, the prevailing opinion ventures out in an attempt to decide other constitutional questions. It says:
58
'Accordingly, even if the accused action were within the scope of the statutory instrument, we would be required to assess the constitutional impact of its application, and we would have to hold that the statute cannot constitutionally be applied to punish petitioners' actions in the circumstances of this case.'
59
I have sometimes thought that this Court has gone entirely too far in refusing to decide constitutional questions on the ground that they should be avoided where possible. The journey here, however, goes entirely too far in the opposite direction. Apparently unsatisfied with or unsure of the 'no evidence' ground for reversing the convictions, the prevailing opinion goes on to state that the statute was used unconstitutionally in the circumstances of this case because it was 'deliberately and purposefully applied solely to terminate the reasonable, orderly, and limited exercise of the right to protest the unconstitutional segregation of a public facility.' First, I am constrained to say that this statement is wholly unsupported by the record in this case. There is simply no evidence in the record at all that petitioners were arrested because they were exercising the 'right to protest.' It is nevertheless said that this was the sole reason for the arrests. Moreover, the conclusion that the statute was unconstitutionally applied because it interfered with the petitioners' so-called protest establishes a completely new constitutional doctrine. In this case this new constitutional principle means that even though these petitioners did not want to use the Louisiana public library for library purposes, they had a constitutional right nevertheless to stay there over the protest of the librarians who had lawful authority to keep the library orderly for the use of people who wanted to use its books, its magazines, and its papers. But the principle espoused also has a far broader meaning. It means that the Constitution (the First and the Fourteenth Amendments) requires the custodians and supervisors of the public libraries in this country to stand helplessly by while protesting groups advocating one cause or another, stage 'sit-ins' or 'stand-ups' to dramatize their particular views on particular issues. And it should be remembered that if one group can take over libraries for one cause, other groups will assert the right to do so for causes which, while wholly legal, may not be so appealing to this Court. The States are thus paralyzed with reference to control of their libraries for library purposes, and I suppose that inevitably the next step will be to paralyze the schools. Efforts to this effect have already been made all over the country. Furthermore, here it seems to have made no difference whatever that the Audubon Regional Library, at least in this instance, satisfied its constitutional duty by giving these petitioners its services in full measure without regard to their race.
60
The constitutional doctrine that actually prevails in this Court today for the first time in its history rests at least in great part on the Court's interpretation of the First Amendment as carried into the States by the Fourteenth. This is the First Amendment which, as I have said in the past, is to me the very heart of our free government without which liberty and equality cannot exist.6 But I have never thought and do not now think that the First Amendment can sustain the startling doctrine the prevailing opinion here creates. The First Amendment, I think protects speech, writings, and expression of views in any manner in which they can be legitimately and validly communicated. But I have never believed that it gives any person or group of persons the constitutional right to go wherever they want, whenever they please, without regard to the rights of private or public property or to state law. Indeed a majority of this Court said as much in Cox v. State of Louisiana, 379 U.S. 559, 574, 85 S.Ct. 476, 485, 13 L.Ed.2d 487. Though the First Amendment guarantees the right of assembly and the right of petition along with the rights of speech, press, and religion, it does not guarantee to any person the right to use someone else's property, even that owned by government and dedicated to other purposes, as a stage to express dissident ideas. The novel constitutional doctrine of the prevailing opinion nevertheless exalts the power of private nongovernmental groups to determine what use shall be made of governmental property over the power of the elected governmental officials of the States and the Nation.
61
The prevailing opinion seems to find some comfort in its very questionable assumption that in this case 'no claim can be made that use of the library by others was disturbed by the demonstration. Perhaps the time and method were carefully chosen with this in mind.' If this was the reason Saturday morning was selected, the only representative of CORE who testified was not aware of it.7 No one of the petitioners has suggested such a thing. The lawyers for the petitioners have not. In fact at the trial responses of the sheriff to questions asked him by petitioners' lawyer indicate that there was another patron in the library at the time the petitioners 'sat in' or 'stood up' there. But even if there were no other patrons there in this instance, with this new constitutional doctrine rather shakily established, it is pretty clear that organized protesters will not overlook the chance to go into the libraries, and disturb those in there to learn, at a time when their 'demonstration' activities will obtain the most publicity.
62
The prevailing opinion laments the fact that the place where these events took place was 'a public library—a place dedicated to quiet, to knowledge, and to beauty.' I too lament this fact, and for this reason I am deeply troubled with the fear that powerful private groups throughout the Nation will read the Court's action, as I do—that is, as granting them a license to invade the tranquillity and beauty of our libraries whenever they have quarrel with some state policy which may or may not exist. It is an unhappy circumstance in my judgment that the group, which more than any other has needed a government of equal laws and equal justice, is now encouraged to believe that the best way for it to advance its cause, which is a worthy one, is by taking the law into its own hands from place to place and from time to time. Governments like ours were formed to substitute the rule of law for the rule of force. Illustrations may be given where crowds have gathered together peaceably by reason of extraordinarily good discipline reinforced by vigilant officers. 'Demonstrations' have taken place without any manifestations of force at the time. But I say once more that the crowd moved by noble ideals today can become the mob ruled by hate and passion and greed and violence tomorrow. If we ever doubted that, we know it now. The peaceful songs of love can become as stirring and provocative as the Marseillaise did in the days when a noble revolution gave way to rule by successive mobs until chaos set in. The holding in this case today makes it more necessary than ever that we stop and look more closely at where we are going.
63
I would affirm.
1
Participants in an orderly demonstration in a public place are not chargeable with the danger, unprovoked except by the fact of the constitutionally protected demonstration itself, that their critics might react with disorder or violence. See Cox v. State of Louisiana, supra, 379 U.S. at 551—552, 85 S.Ct. at 462—463; Wright v. State of Georgia, 373 U.S. 284, 293, 83 S.Ct. 1240, 1246, 10 L.Ed.2d 349; cf. Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131. Compare Feiner v. People of State of New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 267, where one speaker was haranguing 75 or 80 'restless' listeners; Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 ('fighting words'); cf. Niemotko v. State of Maryland, 340 U.S. 268, 289, 71 S.Ct. 325, 336, 95 L.Ed. 267 (concurring opinion of Frankfurter, J.). See generally on the problem of the 'heckler's veto,' Kalven, The Negro and the First Amendment, pp. 140—160 (1965).
2
The statute then read: 'Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public:
'(1) Engaging in a fistic encounter; or
'(2) Using of any unnecessarily loud, offensive, or insulting language; or
'(3) Appearing in an intoxicated condition; or
'(4) Engaging in any act in a violent and tumultuous manner by any three or more persons; or
'(5) Holding of an unlawful assembly; or
'(6) Interruption of any lawful assembly of people; or
'(7) Commission of any other act in such a manner as to unreasonably disturb or alarm the public.'
3
While it was not disputed that the demonstration was 'orderly and well-controlled,' the demonstrators clapped and sang and petitioner spoke in protest of arrests of certain other civil rights demonstrators. In addition to the breach of the peace charge, Cox was charged with obstructing public passageways and with demonstrating near a courthouse. Convictions on these grounds were also reversed. See 379 U.S. 536, 559, 85 S.Ct. 453, 466.
4
The inference finds support in testimony both of the sheriff and of Mrs. Laura Spears, a witness for the defense who was employed as the assistant in charge of the blue bookmobile.
5
La.Rev.Stat. § 14:103.1 (Cum.Supp.1962).
6
See, e.g., N.A.A.C.P. v. Button, 371 U.S. 415, 428—431, 83 S.Ct. 328, 335—337, 9 L.Ed.2d 405; Garner v. Louisiana, supra, 368 U.S. at 201, 82 S.Ct. at 271 (separate opinion of Mr. Justice Harlan); N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 460—463, 78 S.Ct. 1163, 1170—1172, 2 L.Ed.2d 1488; Stromberg v. People of State of California, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117. See Kalven, op. cit. supra, n. 1, at 129—138.
7
Cf. Wright v. State of Georgia, supra.
1
See Shuttlesworth v. City of Birmingham, 382 U.S. 87, 99, 86 S.Ct. 211, 217, 15 L.Ed.2d 176 (concurring opinion); Dombrowski v. Pfister, 380 U.S. 479, 491, n. 7, 85 S.Ct. 1116, 1123, 14 L.Ed.2d 22.
2
Compare Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098, and Commercial Pictures Corp. v. Regents, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329, with Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512.
3
In declaring the statute unconstitutional for overbreadth the Court in Cox relied heavily on Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131, a case involving the application of a breach of the peace ordinance to an individual purporting to exercise First Amendment rights in an auditorium, not on the streets or sidewalks.
4
La.Acts 1963, No. 91, amending and re-enacting La.Rev.Stat. § 14:63.3 (Cum.Supp.1962). The dissent refers to subdivision (4) of § 14:103.1 to support its view that subdivision (1), the basis for the charges and the convictions, 'is to all intents and purposes aimed at trespassers on government property.' Post, p. 162. However, subdivision (4) is also modified by the introductory clause 'Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby'; and thus to establish a violation of that subdivision more than the refusal to leave the 'premises of another' after an order to do so would have to be proved.
5
Cf. N.A.A.C.P. v. Button, 371 U.S. 415, 428—431, 83 S.Ct. 328, 335—337, 9 L.Ed.2d 405; Garner v. State of Louisiana, 368 U.S. 157, 201—202, 82 S.Ct. 248, 271—272, 7 L.Ed.2d 207 (opinion of Mr. Justice Harlan):
'There was more to the conduct of those petitioners than a bare desire to remain at the 'white' lunch counter and their refusal of a police request to move from the counter. We would surely have to be blind not to recognize that petitioners were sitting at these counters, where they knew they would not be served, in order to demonstrate that their race was being segregated in dining facilities in this part of the country.
'Such a demonstration, in the circumstances of these two cases, is as much a part of the 'free trade in ideas,' Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (Holmes, J., dissenting), as is verbal expression, more commonly thought of as 'speech.' It, like speech, appeals to good sense and to 'the power of reason as applied through public discussion,' Whitney v. People of State of California, 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (Brandeis, J., concurring), just as much as, if not more than, a public oration delivered from a soapbox at a street corner. This Court has never limited the right to speak, a protected 'liberty' under the Fourteenth Amendment, Gitlow v. People of State of New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138, to mere verbal expression. Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 633—634, 63 S.Ct. 1178, 1183, 87 L.Ed. 1628. See also N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488. If the act of displaying a red flag as a symbol of opposition to organized government is a liberty encompassed within free speech as protected by the Fourteenth Amendment, Stromberg v. People of State of California, supra, the act of sitting at a privately owned lunch counter with the consent of the owner, as a demonstration of opposition to enforced segregation, is surely within the same range of protections.'
Public buildings often provide a forum for more traditional forms of First Amendment activity, such as verbal expression. See, e.g., Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (city hall); Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (auditorium open to public in privately owned building).
6
Dombrowski v. Pfister, 380 U.S., at 491—492, 85 S.Ct., at 1123—1124.
7
Watson v. City of Memphis, 373 U.S. 526, 535—536, 83 S.Ct. 1314, 1319—1320, 10 L.Ed.2d 529. See generally Buchanan v. Warley, 245 U.S. 60, 81, 38 S.Ct. 16, 20, 62 L.Ed. 149; Cooper v. Aaron, 358 U.S. 1, 16, 78 S.Ct. 1401, 1409, 3 L.Ed.2d 5; Taylor v. State of Louisiana, 370 U.S. 154, 156, 82 S.Ct. 1188, 1189, 8 L.Ed.2d 395; Wright v. State of Georgia, 373 U.S., at 293, 83 S.Ct., at 1246; Cox v. State of Louisiana, 379 U.S., at 551, 85 S.Ct., at 462.
8
On cross-examination the sheriff testified as follows:
'Q. Sheriff, did you arrest these people, these defendants, because you considered their action going into the Library as a demonstration?
'A. I arrested them because the occupants of the building had asked them to leave, and so had I; it was a public building and they refused to leave.
'Q. What did you tell them when you went in, Sheriff, did you have any conversations with these people?
'A. Not with them, I talked to Mrs. Perkins, and she told me that she had taken their application and had asked them to leave, and they wouldn't and I asked them to leave. Henry Brown told me it was a public library, the rest of them didn't say anything.
'Q. Did Brown mention anything to you about wanting a book on the Constitution of the United States?
'A. He did not.
'Q. After Brown told you that it was a public library, what did you say then?
'A. I don't know of anything that I said. I was assured that Mrs. Perkins had asked them to leave since they didn't have the book they wanted.
'Q. Did you, at that point, ask them to leave?
'A. I did.
'Q. When you—
'A.—And I also told them that they had the choice of leaving, or be arrested for not leaving a public building when asked to do so by an officer.
'Q. When you got there, Sheriff, was anybody making any noise?
'A. No noise.
'Q. Prior to your asking these defendants to leave, did you ask each of them, all of them, whether or not they intended to use the reference-books at the Library?
'A. I didn't ask them what they intended to do, and they didn't state at that time what they were doing there.'
9
See Wright v. State of Georgia, 373 U.S., at 291—292, 83 S.Ct., at 1245: 'Obviously * * * one cannot be punished for failing to obey the command of an officer if that command is itself violative of the Constitution.'
10
This ground of reversal makes it unnecessary to decide whether subdivision (1) of § 14:103.1 embodies an invidious discrimination because it contains the following exemption: '(N)othing herein contained shall apply to a bona fide legitimate labor organization or to any of its legal activities such as picketing, lawful assembly or concerted activity in the interest of its members for the purpose of accomplishing or securing more favorable wage standards, hours of employment and working conditions * * *.' My Brother Black in his opinion in Cox v. State of Louisiana, 379 U.S., at 581, 85 S.Ct. at 470, found the obstructing public passages statute (La.Rev.Stat. § 14.100.1 (Cum.Supp.1962)) to embody 'an invidious discrimination forbidden by the Equal Protection Clause of the Fourteenth Amendment' because it contained the same exemption from its coverage for labor union activities.
1
There are three separate opinions which support reversal of the decision below. The opinion of my Brother FORTAS, which for convenience I will call the majority's 'prevailing' opinion, is joined by THE CHIEF JUSTICE and my Brother DOUGLAS. My Brothers BRENNAN and WHITE each concur in the result of the prevailing opinion, but reach that result on different grounds.
2
La.Rev.Stat. § 14:103.1 (Cum.Supp.1962).
3
See my concurring opinion in Cox v. State of Louisiana, 379 U.S. 559, 578—580, 85 S.Ct. 468—470.
4
A condition under which this conduct is punishable is that it be entered into 'with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby.' In the context of the Cox case relating to activity on the public streets this Court held this language unconstitutionally vague. But as I have pointed out above, the Court could not have meant that every disturbing the peace statute which contains this language is unconstitutional.
5
The note describing the book he wanted which petitioner Brown gave Mrs. Reeves read, 'Wendall Arna, the Story of the Negro: Bontems.' This information apparently described no printed book. The book which was obtained from the state library for petitioners' use was The Story of the Negro, by Arna Bontemps.
6
See my dissenting opinion in Milk Wagon Drivers Union, etc. v. Meadowmoor Dairies, Inc., 312 U.S. 287, 301—302, 61 S.Ct. 552, 558—559, 85 L.Ed. 836.
7
Miss Feingold, task force worker for CORE and the State's first witness, testified on direct examination as follows:
'Q. Was there any particuar reason for these defendants going to the Library on a Sturday morning?
'A. You mean on a Saturday as opposed to any other day?
'Q. Yes?
'A. No, I don't.'
| 12
|
383 U.S. 116
86 S.Ct. 773
15 L.Ed.2d 627
UNITED STATES, Appellant,v.Clarence EWELL and Ronald K. Dennis.
No. 29.
Argued Nov. 18, 1965.
Decided Feb. 23, 1966.
[Syllabus from pages 116-117 intentionally omitted]
Ralph S. Spritzer, Washington, D.C., for appellant.
David B. Lockton, Indianapolis, Ind., for appellee, Clarence Ewell.
Mr. Justice WHITE delivered the opinion of the Court.
1
Appellees Clarence Ewell and Ronald Dennis were indicted on December 14, 1962, for selling narcotics without the order form required by 26 U.S.C. § 4705(a) (1964 ed.).1 The indictments, each alleging a single sale, did not name the purchasers. After pleas of guilty on December 18 and December 19 they were sentenced to the minimum terms of imprisonment permitted by the statute, Dennis for five years and Ewell, as a second offender, for ten years.2 On July 17, 1963, the Court of Appeals for the Seventh Circuit, in an unrelated case, held that a § 4705(a) indictment that does not allege the name of the purchaser is defective and may be set aside under 28 U.S.C. § 2255 (1964 ed.). Lauer v. United States, 7 Cir., 320 F.2d 187.3 Ewell's motion of November 6, 1963, to vacate his conviction, and Dennis' similar motion of January 28, 1964, were granted by the District Court on January 13 and April 13, 1964, respectively. Appellees were immediately rearrested on new complaints and reindicted, Ewell on March 26 and Dennis on June 15, 1964. These indictments, charging the same sales alleged in the original indictments but this time naming the purchasers, contained three counts: Count I charged violations of 26 U.S.C. § 4705(a); Count II charged sales not in or from the original stamped packages in violation of 26 U.S.C. § 4704(a) (1964 ed.);4 Count III charged dealing in illegally imported narcotics in violation of 21 U.S.C. § 174 (1964 ed.).
2
On July 13 and July 30, 1964, respectively, the United States District Court for the Southern District of Indiana granted the motions of Ewell and Dennis to dismiss the indictments against them on the ground that they had been denied their Sixth Amendment rights to a speedy trial, while rejecting their other contention that they were also being placed in double jeopardy. In its petition for rehearing on the dismissal of the indictment against Ewell, the Government advised the court that upon a plea or finding of guilty, all counts except that under 26 U.S.C. § 4704(a) would be dismissed against him, leaving a conviction upon which the minimum sentence would be only five years for a second offender,5 in contrast to the minimum 10-year sentence which Ewell had previously received under § 4705(a). The court denied the request for rehearing and the Government then appealed directly to this Court from the dismissal of the indictments against Ewell and Dennis. 18 U.S.C. § 3731 (1964 ed.). The Government has limited its appeal to that portion of the order of the District Court in each case that dismissed the second count of each indictment, charging a violation of 26 U.S.C. § 4704(a). We noted probable jurisdiction. 381 U.S. 909, 85 S.Ct. 1530, 14 L.Ed.2d 432. We reverse.
3
We cannot agree that the passage of 19 months between the original arrests and the hearings on the later indictments itself demonstrates a violation of the Sixth Amendment's guarantee of a speedy trial.6 This guarantee is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself. However, in large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. Therefore, this Court has consistently been of the view that 'The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.' Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950. 'Whether delay in completing a prosecution * * * amounts to an unconstitutional deprivation of rights depends upon the circumstances. * * * The delay must not be purposeful or oppressive,' Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 486, 1 L.Ed.2d 393. '(T)he essential ingredient is orderly expedition and not mere speed.' Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041.
4
In this case, appellees were promptly indicted and convicted after their arrests in 1962 and were immediately arrested and reindicted in due course after their § 2255 motions were granted in 1964. Moreover, it was the decision in Lauer v. United States, supra, and the subsequent vacation of appellees' prior convictions that precipitated the later indictments. In these circumstances, the substantial interval between the original and subsequent indictments does not in itself violate the speedy trial provision of the Constitution.
5
It has long been the rule that when a defendant obtains a reversal of a prior, unsatisfied conviction, he may be retried in the normal course of events. United States v. Ball, 163 U.S. 662, 671—672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300; United States v. Tateo, 377 U.S. 463, 465, 473—474, 84 S.Ct. 1587, 1593, 12 L.Ed.2d 448. The rule of these cases, which dealt with the Double Jeopardy Clause, has been thought wise because it protects the societal interest in trying people accused of crime, rather than granting them immunization because of legal error at a previous trial, and because it enhances the probability that appellate courts will be vigilant to strike down previous convictions that are tainted with reversible error. United States v. Tateo, supra, 377 U.S. at 466, 84 S.Ct. at 1589. These policies, so carefully preserved in this Court's interpretation of the Double Jeopardy Clause, would be seriously undercut by the interpretation given the Speedy Trial Clause by the court below. Indeed, such an interpretation would place a premium upon collateral rather than upon direct attack because of the greater possibility that immunization might attach.
6
Appellees themselves concede that Ball and Tateo are ample authority for retrial on charges under § 4705, despite their Sixth Amendment contentions.7 But they urge us to prohibit prosecution in their cases because the Government is proceeding under § 4704 rather than § 4705 and because the passage of time has allegedly impaired their ability to defend themselves on this new and different charge, thereby rendering the delay prejudicial and oppressive.
7
We note, first, however, that the new indictments charging violations of § 4704 were brought well within the applicable statute of limitations, which is usually considered the primary guarantee against bringing overly stale criminal charges. Surely appellees could claim no automatic violation of their rights to a speedy trial if there had been no charges or convictions in 1962 but only the § 4704 indictment in 1964. In comparison with that situation, the indictments and convictions of 1962 might well have enhanced appellees' ability to defend themselves, for they were at the very least put on early notice that the Government intended to prosecute them for the specific sales with which they were then and are now charged.
8
Second, the appellees' claim of possible prejudice in defending themselves is insubstantial, speculative and premature. They mention no specific evidence which has actually disappeared or has been lost, no witnesses who are known to have disappeared. Although the present charges allege sales not in or from the original stamped packages, under § 4704, rather than sales without the purchaser's written order form, under § 4705, the charges are based on the same sales as were involved in the previous indictments. In this respect, it should be recalled that the problem of delay is the Government's too, for it still carries the burden of proving the charges beyond a reasonable doubt.
9
Third, the new indictments occurred only after the vacation of the previous convictions; and the Government now seeks to sustain the § 4704 charges, which carry lesser minimum sentences than the charges under § 4705(a), not to oppress, but to extend to the trial judge, if these appellees are again convicted, the clear opportunity to take due account of the time both Ewell and Dennis have already spent in prison. We find no oppressive or culpable governmental conduct inhering in these facts.
10
The District Court apparently considered retrial and reconviction to be oppressive because appellees had already spent substantial time in prison and because in its view the law would not permit time already served to be credited against the sentences which might be imposed upon reconviction. This, too, is a premature concern. The appellees have not yet been convicted on the second indictments; and if they were to be reconvicted on § 4705 or § 4704 counts it should not be assumed that the controlling statute would prevent a credit for time already served. However that may be, as matters now stand, the remaining charges the Government seeks to sustain are under § 4704, which carries a minimum sentence in the case of Ewell of five years, as compared with a minimum of 10 years under § 4705, and two years instead of five years in the case of Dennis. In these circumstances, there is every reason to expect the sentencing judge to take the invalid incarcerations into account in fashioning new sentences if appellees are again convicted.8
11
Appellees also invoke the Double Jeopardy Clause to sustain the dismissal of the indictments, a ground which we think the trial court correctly rejected. The Fifth Amendment provides that no person shall 'be subject for the same offence to be twice put in jeopardy of life or limb.' That clause, designed to prohibit double jeopardy as well as double punishment, is not properly invoked to bar a second prosecution unless the 'same offence' is involved in both the first and the second trials. The identity of offenses is, therefore, a recurring issue in double jeopardy cases, but one which we need not face in this case. Here the Government is not attempting to prosecute a defendant for an allegedly different offense in the face of an acquittal or an unreversed conviction for another offense arising out of the same transaction. See Abbate v. United States, 359 U.S. 187, 196, 79 S.Ct. 666, 671, 3 L.Ed.2d 729, separate opinion of Mr. Justice Brennan. Nor is there any question here of the Government's joining in one indictment more than one count allegedly charging the same crime. Compare Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. Here, the Government seeks only to sustain one charge under § 4704. If the present indictments charge the same offense as the § 4705 offense for which appellees were previously convicted, they may clearly be retried on either § 4705 or § 4704 after their convictions have been vacated on their own motions. In these circumstances, where the appellees are subject to a second trial under Ball and Tateo, the fact that § 4704, rather than § 4705, is charged does not in any manner expand the number of trials that may be brought against them. If the two offenses are not, however, the same, then the Double Jeopardy Clause by its own terms does not prevent the current prosecution under § 4704.9
12
Reversed and remanded.
13
Mr. Justice BRENNAN, concurring in the result.
14
I am unable to join the Court's opinion, because it could be read as implying approval of a course of government conduct that I find most oppressive. Appellees were indicted initially under only one of the three statutes which this Court held in Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405, over my dissent, might constitutionally be applied to a single narcotics sale. Their successful attacks upon their sentences brought on these new indictments for all three statutory offenses. I can think of no plausible reasons for this tactic except to increase the pressure on appellees to plead guilty by raising the threat of cumulative sentences, or to punish them for asserting their rights to challenge their original sentences. The Government offered to abandon this tactic and limit prosecution to 26 U.S.C. § 4704 (1964 ed.) only on rehearing, after the prosecution seemed imperiled.
15
Government tactics of this kind raise very serious questions for me. Cf. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199; Abbate v. United States, 359 U.S. 187, 196—201, 79 S.Ct. 666, 671—674, 3 L.Ed.2d 729 (separate opinion); Van Alstyne, In Gideon's Wake: Harsher Penalties and the 'Successful' Criminal Appellant, 74 Yale L.J. 606 (1965). But I agree with the Court that because the prosecution is now limited to § 4704, appellees have suffered no prejudice. I would not, however, as the Court seems to do, imply approval of the tactics the Government employed. Indeed, the Government informed us after argument that this problem is involved in another case, pending below, where an accused initially indicted for only one offense has been reindicted for three. It does not appear that the Government has limited the prosecution in that case to § 4704.
16
Mr. Justice FORTAS, with whom Mr. Justice DOUGLAS joins, dissenting.
17
I cannot agree that the District Court erred in dismissing the second indictment. Following vacation of the convictions under the original indictment, the Government was at liberty to reindict and retry appellees for the same offense.1 I agree with the opinion of the Court the circumstances, this would not have deprived appellees of their Sixth Amendment right to a speedy trial.
18
But the Government did not merely reindict appellees for the identical offense. They were charged, on the basis of the same alleged sale of 400 milligrams of heroin, with violations of two additional narcotics statutes. Under the original one-count indictment charging a violation of 26 U.S.C. § 4705(a) (1964 ed.), Dennis faced a sentence of from five to 20 years; Ewell, a second offender, 10 to 40 years. Under the new three-count indictment, the District Court may cumulate the sentences on the three counts and impose terms of from 12 to 50 years upon Dennis and from 25 to 100 years upon Ewell. Cumulative sentences are permitted by this Court's holding in Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405. But cf. Comment, Twice in Jeopardy, 75 Yale L.J. 262, 299—317 (1965). In my opinion, however, the Government may not, following vacation of a conviction, reindict a defendant for additional offenses arising out of the same transaction but not charged in the original indictment.
19
In a different setting this Court has vividly criticized the Government's attempt to penalize a successful appellant by retrying him on an aggravated basis. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199. Although the decision in green was premised upon the Double Jeopardy Clause,2 its teaching has another dimension. Green also demonstrates this Court's concern to protect the right of appeal in criminal cases.3 It teaches that the Government, in its role as prosecutor, may not attach to the exercise of the right to appeal the penalty that if the appellant succeeds, he may be retried on another and more serious charge. Mr. Justice Black, speaking for the Court in green, said: 'The law should not, and in our judgment does not, place the defendant in such an incredible dilemma.' 355 U.S., at 193, 78 S.Ct., at 227.4
20
In the present case it appears that the purpose as well as the effect of the Government's action was to discourage the exercise of the right, conferred by statute, to seek review of criminal convictions. According to the District Court, the only reason advanced by the Government for the multiplication of charges against appellees was that the prosecutor wanted to discourage others convicted of narcotics offenses from attacking their convictions. As the District Judge put it, there was 'the expressed concern of the prospective liberation of a number of similarly convicted narcotic felons.'5 242 F.Supp. 451, at 456. The prosecutor's concern is understandable, but the right to direct and collateral review is granted by law. The prosecutor may not consistently with the Due Process Clause boobytrap this right, either to punish or to frighten.
21
It is no answer to the foregoing that after—and only after the District Court had dismissed the entire three-count indictment, the Government in support of its petition for rehearing advised the court that 'upon a plea or finding of guilty' all counts except that under 26 U.S.C. § 4704(a) (1964 ed.) would be dismissed. This belated offer, conditioned upon a conviction, did not absolve the Government. The Government continued to insist upon going to trial on an unsupportable indictment. Even in its Notice of Appeal to this Court, the Government asserted its right to try the appellees upon the entire 'present indictment.' Not until the Solicitor General filed the jurisdiction statement was it suggested that the Government would agree to action taken to dismiss two of the counts—and that suggestion was negatively phrased: the Government 'would not question dismissal' of the counts alleging violation of § 4705(a) and 21 U.S.C. § 174 (1964 ed.). I cannot agree that this backhanded concession warrants our reversing the District Court's dismissal of the three-count indictment. The indictment is the Government's responsibility. it must stand the test of lawfulness as the Government presents it. The Government cannot rest upon a faulty indictment, and defend it by indicating its willingness to acquiesce in surgery which it is apparently unready to initiate.
22
In my view, this reindictment, greatly exceeding the original indictment in its charges and threatened penalties, was not a lawful basis upon which to put appellees to their defense. Apart from considerations of the impermissible purpose as found by the District Court, this technique has the necessary effect of unlawfully burdening and penalizing the exercise of the right to seek review of a criminal conviction under federal law. This, in my opinion, is forbidden by the Due Process Clause. I would affirm the decision of the District Court, without prejudice, if other factors permit, to re-indictment within the limits of the original charge.
1
'It shall be unlawful for any person to sell, barter, exchange, or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary or his delegate.' 26 U.S.C. § 4705(a).
2
'Whoever commits an offense * * * described in section 4705(a) * * * shall be imprisoned not less than 5 or more than 20 years and, in addition, may be fined not more than $20,000. For a second or subsequent offense, the offender shall be imprisoned not less than 10 or more than 40 years and, in addition, may be fined not more than $20,000.' 26 U.S.C. § 7237(b) (1964 ed.).
3
That circuit has since overruled its Lauer decision. Collins v. Markley, 7 Cir., 346 F.2d 230 (en banc).
4
'It shall be unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package; and the absence of appropriate taxpaid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found.' 26 U.S.C. § 4704(a).
5
26 U.S.C. § 7237(a) (1964 ed.).
6
'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial * * *.' U.S.Const., Amendment VI.
7
In Tateo the defendant had spent almost seven years in prison under a conviction that ultimately was overturned upon a collateral attack; yet when this Court remanded for a new trial there was no suggestion that his right to a speedy trial was being denied him. See also Bayless v. United States, 8 Cir., 147 F.2d 169, where it was held that it does not violate the Speedy Trial Clause to retry a defendant who had been incarcerated for five years under a conviction that had been subsequently invalidated.
8
We likewise reject appellees' argument that the dismissal of their indictments on § 4704 can be sustained on the basis that they were denied their Sixth Amendment rights 'to the informed of the nature and cause of the accusation * * *.' Appellees did not present this ground for granting their motion in the trial court, and as we read his opinion the trial judge did not base his ruling on that ground. In any event, the claim is not that the second indictments did not carry adequate notice of the charges, which they obviously did, but that the notice came much too late, a contention which we have already disposed of.
9
This situation is to be distinguished from Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, where the defendant was indicted upon a charge of first-degree murder and was ultimately convicted of second-degree murder. Upon his successful appeal of that conviction the Government attempted to reprosecute him for first-degree murder. This Court held that the Double Jeopardy Clause prevented that prosecution on the alternative grounds either that the jury had returned an implied verdict of acquittal on the first-degree murder charge or that the jury was dismissed, without the defendant's consent and after he had been placed in jeopardy on the charge of first-degree murder, without returning any express verdict on that charge. Neither of these grounds is applicable here because the sole charge in the first indictment was on § 4705.
This situation should also be distinguished from that presented in Ciucci v. State of Illinois, 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed.2d 983, and Hoag v. New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913. Those cases involved only the question whether the Fourteenth Amendment prevents a State from bringing successive prosecutions against a defendant where each prosecution alleges the same statutory offense and the same general transaction by the defendant but names different victims.
1
United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448; United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300; Note, Double Jeopardy: The Reprosecution Problem, 77 Harv.L.Rev. 1272, 1283—1285 (1964).
2
In Green, the Court held that the Double Jeopardy Clause required reversal of a federal conviction for firstdegree murder where, in a former trial on that charge, the defendant was convicted of the lesser offense of murder in the second degree. Cf. Mr. Justice Brennan's separate opinion in Abbate v. United States, 359 U.S. 187, 196—201, 79 S.Ct. 666, 671—674, 3 L.Ed.2d 729, discusprinciples to successive prosecutions based on the same transaction but for allegedly different offenses.
3
Van Alstyne, In Gideon's Wake: Harsher Penalties and the 'Successful' Criminal Appellant, 74 Yale L.J. 606, 629 (1965); Note, 77 Harv.L.Rev., at 1287. See Fay v. Noia, 372 U.S. 391, 440, 83 S.Ct. 822, 849, 9 L.Ed.2d 837; Draper v. State of Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899; Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892; Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39; Burns v. State of Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209; Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891.
4
Cf. State v. Wolf, 46 N.J. 301, 216 A.2d 586 (1966); People v. Henderson, 60 Cal.2d 482, 497, 35 Cal.Rptr. 77, 386 P.2d 677, 687 (1963).
5
On the authority of Lauer v. United States, 320 F.2d 187 (C.A. 7th Cir.), appellees had obtained vacation of their convictions on the ground that since the indictment did not name the alleged purchaser of narcotics it failed properly to state an offense under 26 U.S.C. § 4705(a). The Government has furnished the Court with information concerning five other individuals whose convictions were set aside under Lauer and who were then subjected to reprosecution under multiplecount indictments. Subsequently, Lauer was overruled by Collins v. Markley, 346 F.2d 230 (C.A.7th Cir.).
| 01
|
383 U.S. 107
86 S.Ct. 760
15 L.Ed.2d 620
Johnnie K. BAXSTROM, Petitioner,v.R. E. HEROLD, Director, Dannemora State Hospital.
No. 219.
Argued Dec. 9, 1965.
Decided Feb. 23, 1966.
Leon B. Polsky, New York City, for petitioner.
Anthony J. Lokot, Albany, for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
We granted certiorari in this case to consider the constitutional validity of the statutory procedure under which petitioner was committed to a mental institution at the expiration of his criminal sentence in a state prison.
2
Petitioner, Johnnie K. Baxstrom, was convicted of second degree assault in April 1959 and was sentenced to a term of two and one-half to three years in a New York prison. On June 1, 1961, he was certified as insane by a prison physician. He was then transferred from prison to Dannemora State Hospital, an institution under the jurisdiction and control of the New York Department of Correction and used for the purpose of confining and caring for male prisoners declared mentally ill while serving a criminal sentence. In November 1961, the director of Dannemora filed a petition in the Surrogate's Court of Clinton County stating that Baxstrom's penal sentence was about to terminate and requesting that he be civilly committed pursuant to § 384 of the New York Correction Law, McKinney's Consol.Laws, c. 43.
3
On December 6, 1961, a proceeding was held in the Surrogate's chambers. Medical certificates were submitted by the State which stated that, in the opinion of two of its examining physicians, Baxstrom was still mentally ill and in need of hospital and institutional care. Respondent, then assistant director at Dannemora, testified that in his opinion Baxstrom was still mentally ill. Baxstrom, appearing alone, was accorded a brief opportunity to ask questions.1 Respondent and the Surrogate both stated that they had no objection to his being transferred from Dannemora to a civil hospital under the jurisdiction of the Department of Mental Hygiene. But the Surrogate pointed out that he had no jurisdiction to determine that question—that under § 384 the decision was entirely up to the Department of Mental Hygiene. The Surrogate then signed a certificate which indicated he was satisfied that Baxstrom 'may require mental care and treatment' in an institution for the mentally ill. The Department of Mental Hygiene had already determined ex parte that Baxstrom was not suitable for care in a civil hospital. Thus, on December 18, 1961, the date upon which Baxstrom's penal sentence expired, custody over him shifted from the Department of Correction to the Department of Mental Hygiene, but he was retained at Dannemora and has remained there to this date.
4
Thereafter, Baxstrom sought a writ of habeas corpus in a state court. An examination by an independent psychiatrist was ordered and a hearing was held at which the examining psychiatrist testified that, in his opinion, Baxstrom was still mentally ill. The writ was dismissed. In 1963, Baxstrom applied again for a writ of habeas corpus, alleging that his constitutional rights had been violated and that he was then sane, or if insane, he should be transferred to a civil mental hospital. Due to his indigence and his incarceration in Dannemora, Baxstrom could not produce psychiatric testimony to disprove the testimony adduced at the prior hearing. The writ was therefore dismissed. Baxstrom's alternative request for transfer to a civil mental hospital was again denied as being beyond the power of the court despite a statement by the State's attorney that he wished that Baxstrom would be transferred to a civil mental hospital. On appeal to the Appellate Division, Third Department, the dismissal of the writ was affirmed without opinion. 21 A.D.2d 754, 251 N.Y.S.2d 938. A motion for leave to appeal to the Court of Appeals was denied. 14 N.Y.2d 490, 253 N.Y.S.2d 1028, 202 N.E.2d 159. We granted certiorari. 381 U.S. 949, 85 S.Ct. 1810, 14 L.Ed.2d 723.
5
We hold that petitioner was denied equal protection of the laws by the statutory procedure under which a person may be civilly committed at the expiration of his penal sentence without the jury review available to all other persons civilly committed in New York. Petitioner was further denied equal protection of the laws by his civil commitment to an institution maintained by the Department of Correction beyond the expiration of his prison term without a judicial determination that he is dangerously mentally ill such as that afforded to all so committed except those, like Baxstrom, nearing the expiration of a penal sentence.
6
Section 384 of the New York Correction Law prescribes the procedure for civil commitment upon the expiration of the prison term of a mentally ill person confined in Dannemora.2 Similar procedures are prescribed for civil commitment of all other allegedly mentally ill persons. N.Y.Mental Hygiene Law, McKinney's Consol.Laws, c. 27, §§ 70, 72. All persons civilly committed, however, other than those committed at the expiration of a penal term, are expressly granted the right to de novo review by jury trial of the question of their sanity under § 74 of the Mental Hygiene Law. Under this procedure any person dissatisfied with an order certifying him as mentally ill may demand full review by a jury of the prior determination as to his competency. If the jury returns a verdict that the person is sane, he must be immediately discharged. It follows that the State, having made this substantial review proceeding generally available on this issue, may not, consistent with the Equal Protection Clause of the Fourteenth Amendment, arbitrarily withhold it from some.
7
The director contends that the State has created a reasonable classification differentiating the civilly insane from the 'criminally insane,' which he defines as those with dangerous or criminal propensities. Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made. Walters v. City of St. Louis, 347 U.S. 231, 237, 74 S.Ct. 505, 509, 98 L.Ed. 660. Classification of mentally ill persons as either insane or dangerously insane of course may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given, but it has no relevance whatever in the context of the opportunity to show whether a person is mentally ill at all. For purposes of granting judicial review before a jury of the question whether a person is mentally ill and in need of institutionalization, there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments.
8
The statutory procedure provided in § 384 of the New York Correction Law denied Baxstrom the equal protection of the laws in another respect as well. Under § 384 the judge need only satisfy himself that the person 'may require care and treatment in an institution for the mentally ill.' Having made such a finding, the decision whether to commit that person to a hospital maintained by the Department of Correction or to a civil hospital is completely in the hands of administrative officials.3 Except for persons committed to Dannemora upon expiration of sentence under § 384, all others civilly committed to hospitals maintained by the Department of Correction are committed only after judicial proceedings have been held in which it is determined that the person is so dangerously mentally ill that his presence in a civil hospital is dangerous to the safety of other patients or employees, or to the community.4
9
This statutory classification cannot be justified by the contention that Dannemora is substantially similar to other mental hospitals in the State and that commitment to one hospital or another is simply an administrative matter affecting no fundamental rights. The parties have described various characteristics of Dannemora to show its similarities and dissimilarities to civil hospitals in New York. As striking as the dissimilarities are, we need not make any factual determination as to the nature of Dannemora; the New York State Legislature has already made that determination. By statute, the hospital is under the jurisdiction of the Department of Correction and is used for the purpose of confining and caring for insane prisoners and persons, like Baxstrom, committed at the expiration of a penal term. N.Y. Correction Law § 375. Civil mental hospitals in New York, on the other hand, are under the jurisdiction and control of the Department of Mental Hygiene. Certain privileges of patients at Dannemora are restricted by statute. N.Y. Correction Law § 388. Moreover, as has been noted, specialized statutory procedures are prescribed for commitment to hospitals under the jurisdiction of the Department of Correction. While we may assume that transfer among like mental hospitals is a purely administrative function, where, as here, the State has created functionally distinct institutions, classification of patients for involuntary commitment to one of these institutions may not be wholly arbitrary.
10
The director argues that it is reasonable to classify persons in Baxstrom's class together with those found to be dangerously insane since such persons are not only insane but have proven criminal tendencies as shown by their past criminal records. He points to decisions of the New York Court of Appeals supporting this view. People ex rel. Kamisaroff v. Johnston, 13 N.Y.2d 66, 242 N.Y.S.2d 38, 192 N.E.2d 11; People ex rel. Brunson v. Johnston, 15 N.Y.2d 647, 255 N.Y.S.2d 867, 204 N.E.2d 200.
11
We find this contention untenable Where the State has provided for a judicial proceeding to determine the dangerous propensities of all others civilly committed to an institution of the Department of Correction, it may not deny this right to a person in Baxstrom's position solely on the ground that he was nearing the expiration of a prison term.5 It may or may not be that Baxstrom is presently mentally ill and such a danger to others that the strict security of a Department of Correction hospital is warranted. All others receive a judicial hearing on this issue. Equal protection demands that Baxstrom receive the same.
12
The capriciousness of the classification employed by the State is thrown sharply into focus by the fact that the full benefit of a judicial hearing to determine dangerous tendencies is withheld only in the case of civil commitment of one awaiting expiration of penal sentence. A person with a past criminal record is presently entitled to a hearing on the question whether he is dangerously mentally ill so long as he is not in prison at the time civil commitment proceedings are instituted. Given this distinction, all semblance of rationality of the classification, purportedly based upon criminal propensities, disappears.
13
In order to accord to petitioner the equal protection of the laws, he was and is entitled to a review of the determination as to his sanity in conformity with proceedings granted all others civilly committed under § 74 of the New York Mental Hygiene Law. He is also entitled to a hearing under the procedure granted all others by § 85 of the New York Mental Hygiene Law to determine whether he is so dangerously mentally ill that he must remain in a hospital maintained by the Department of Correction. The judgment of the Appellate Division of the Supreme Court, in the Third Judicial Department of New York is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion.
14
It is so ordered.
15
Reversed and remanded.
16
Mr. Justice BLACK concurs in the result.
1
The State apparently permits counsel to be retained in such proceedings where the person can afford to hire his own attorney despite the fact that § 384 makes no provision for counsel to be present. See 1961 Op.N.Y.Atty.Gen. 180, 181. Baxstrom is indigent, however, and had no counsel at this hearing.
2
As it appeared when applied to petitioner in 1961, N.Y. Correction Law § 384 provided in part:
'1. Within thirty days prior to the expiration of the term of a prisoner confined in the Dannemora state hospital, when in the opinion of the director such prisoner continues insane, the director shall apply to a judge of a court of record for the certification of such person as provided in the mental hygiene law for the certification of a person not in confinement on a criminal charge. The court in which such proceedings are instituted shall if satisfied that such person may require care and treatment in an institution for the mentally ill, issue an order directing that such person be committed to the custody of the commissioner of mental hygiene to be placed in an appropriate state institution of the department of mental hygiene or of the department of correction as may be designated for the custody of such person by agreement between the heads of the two departments.'
3
In this case, the administrative decision to retain Baxstrom in Dannemora was made before any hearing was afforded to Baxstrom and was made despite the otherwise unanimous conclusion by testifying psychiatrists, including an independent examining psychiatrist and respondent himself, that there was no reason why Baxstrom could not be transferred to a civil institution. The following is a portion of the transcript of the hearing before the Surrogate:
'The COURT: (Addressing Dr. Herold) Have you any objection if this man is transferred to a civil hospital if the Department of Mental Hygiene so decrees?
'Dr. HEROLD: None whatever.
'The COURT: And I, Sir, agree with you. I have no objection to his transfer if the Department of Mental Hygiene so finds.
'I hope that you will be transferred to a civil hospital.
'Good luck.'
And at the first habeas corpus hearing:
'Q. Do you feel, Doctor, from your examination and examining the records of this man, he needs additional care? Is that correct?
'A. (Dr. Kerr) Yes, sir. May I say something at this point, sir?
'Q. Surely.
'A. Since Mr. Baxstrom's sentence has actually expired, sir, I would like to say that in my opinion there is no reason why he could not be treated in a civil mental hospital. I would simply like to say that for the record, sir.
'The COURT: All right.'
4
N.Y. Mental Hygiene Law §§ 85, 135. See also N.Y. Code Crim.Proc. §§ 662—b(3)(b), 872(1)(b), as amended, N.Y. Laws 1965, c. 540, §§ 1, 2. Former § 412 of Correction Law, permitting commitment to Matteawan State Hospital of any patient who had previously been sentenced to a term of imprisonment, without the benefit of the proceeding accorded others under § 85 of the Mental Hygiene Law, was held unconstitutional as a denial of equal protection in United States ex rel. Carroll v. McNeill, 294 F.2d 117 (C.A.2d Cir. 1961), probable jurisdiction noted, 368 U.S. 951, 82 S.Ct. 393, 7 L.Ed.2d 385, vacated and dismissed as moot, 369 U.S. 149, 82 S.Ct. 685, 7 L.Ed.2d 782, and was repealed by N.Y. Laws 1965, c. 524. Even that provision required a showing that the person still manifested criminal tendencies.
5
In oral argument, counsel for respondent suggested that the determination by the Department of Mental Hygiene to retain a person in Dannemora must be based not only on his past criminal record, but also on evidence that he is currently dangerous. Far from supporting the validity of the procedure, this only serves to further accent the arbitrary nature of the classification. Under this procedure, all civil commitments to an institution under the control of the Department of Correction require a determination that the person is presently dangerous; all persons so committed are entitled to a judicial proceeding to determine this fact except those awaiting expiration of sentence. Their fate is decided by unreviewable determinations of the Department of Mental Hygiene.
| 01
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383 U.S. 190
86 S.Ct. 737
15 L.Ed.2d 694
IDAHO SHEET METAL WORKS, INC., Petitioner,v.W. Willard WIRTZ, Secretary of Labor. W. Willard WIRTZ, Secretary of Labor, Petitioner, v. STEEPLETON GENERAL TIRE COMPANY, Inc., et al.
Nos. 30, 31.
Argued Dec. 8, 1965.
Decided Feb. 24, 1966.
Rehearing Denied March 28, 1966.
See 383 U.S. 963, 86 S.Ct. 1219.
[Syllabus from pages 190-191 intentionally omitted]
No. 30:
Eli A. Weston, Boise, Idaho, for petitioner.
Charles Donahue, Washington, D.C., for respondent.
No. 31:
Bessie Margolin, Washington, D.C., for petitioner.
Lucius E. Burch, Jr., Memphis, Tenn., for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
The common question presented by these two cases is the meaning of the phrase 'retail or service establishment' as that language is used in the exemptive provisions of the federal wage and hour statute. We first set forth the statute and describe the two cases before us, then examine the history and content of the exempting clause, and finally apply the resulting analysis to the facts of each case.
I.
2
The Fair Labor Standards Act of 1938 enacted a comprehensive scheme providing for minimum wages and overtime pay for workers 'engaged in' or 'in the production of goods for' interstate and foreign commerce.1 Among other exemptions, Congress by § 13(a)(2) of the Act has excluded from the statute's wage and hour protections those employees working for certain 'retail or service' establishments.2 To qualify for this exemption in its present form, an establishment must meet three tests: first, it must make more than 50% of its annual dollar volume of sales of goods or services within the State;3 second, it must meet one of four tests designated '(i)—(iv),' chiefly designed to prevent most very large employers from enjoying the exemption;4 third, it must be a 'retail or service establishment.' Regarding this third requirement—which is the focus of this decision—s 13(a)(2) states that '(a) 'retail or service establishment' shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.'
3
Of the cases before us, the first one, No. 30, stems from two consolidated actions brought by the Secretary of Labor against Idaho Sheet Metal Works, Inc. (Idaho Sheet). By one action the Secretary sought to enjoin future disregard of the Act's overtime provisions, and by the other he sought to collect on behalf of one employee unpaid overtime compensation for a period during the year 1960. See §§ 15—17, 52 Stat. 1068—1069, as amended, 29 U.S.C. §§ 215—217 (1964 ed.). The ensuing litigation established that Idaho Sheet operates a plant in Burley, Idaho, where it employs about 12 workers to fabricate, install, and maintain sheet metal products. Many articles are sold to individuals, farmers, and local merchants, the plant has display racks to show its wares, and about 60% of sales in number are said to be to 'the general public' as opposed to industrial customers. About 83% of the gross income, however, is derived from metal work done on equipment used by five potato processing companies which dehydrate and freeze the potatoes for interstate shipment.
4
For its defense, Idaho Sheet denied its workers were engaged in or producing goods for interstate commerce. It also claimed to be an exempt retail or service establishment, adducing proof that over 75% of its dollar volume of sales was not for resale and that its officials and salesmen who sell to it regarded the business as retail. The District Court held that Idaho Sheet was outside the interstate commerce coverage of the Act and was in any case exempt. The Court of Appeals for the Ninth Circuit reversed on both points and held in favor of the Secretary. 9 Cir., 335 F.2d 952. We granted certiorari limited to the question whether Idaho Sheet was a retail or service establishment within the meaning of the Act. 380 U.S. 905, 85 S.Ct. 894, 13 L.Ed.2d 793.
5
In the other case before us, No. 31, the Secretary of Labor sued the Steepleton General Tire Company (Steepleton) and its president to require compliance with the minimum wage, overtime pay, and record-keeping provisions of the Act. Steepleton, which is located in Memphis, Tennessee, and employs about 47 workers, is a franchised tire dealer engaged in the sale, recapping, and repair of tires. Some of Steepleton's income derives from dealings with private customers but more than half the gross income comes from sales and repairs of tires furnished to businesses operating heavy industrial or construction vehicles or operating fleets of trucks; apparently a sizable though unspecified portion of these commercial customers operated their equipment in interstate commerce.
6
The District Court determined that Steepleton came within the interstate commerce coverage of the Act, and that issue is no longer in the case. Alleging itself to be exempt under § 13(a)(2), Steepleton showed that 75% or more of its sales were not for resale and that the industry's predominant and longstanding use of the word retail applied that term to all tire sales not for resale, despite the commercial character of the tires and the established pattern of quantity discounts. The only explanation offered for this use was that it conformed to many state sales tax statutes. The Secretary showed that the industry sometimes used the word retail in other senses that excluded commercial sales and that commercial customers of Steepleton did not regard their purchases as retail transactions. The District Court held Steepleton to be entitled to the exemption. The Court of Appeals for the Sixth Circuit affirmed the District Court in all respects, 330 F.2d 804, and we granted certiorari at the behest of the Secretary to consider whether Steepleton qualified as a retail or service establishment. 380 U.S. 904, 85 S.Ct. 894, 13 L.Ed.2d 794.
7
The approach of the Sixth Circuit, which took industry usage as controlling, and that of the Ninth Circuit, which rejected it as the sole test, represent irreconcilable interpretations of the critical statutory language. While support can be mustered for both views, we believe the Ninth Circuit is correct and on this point follow our earlier decision in Mitchell v. Kentucky Finance Co., 359 U.S. 290, 79 S.Ct. 756, 3 L.Ed.2d 815. After rejecting the industry's usage as controlling, we face the further difficult question of what criteria do determine when business transactions are retail under the Act; to this question it is still less easy to return a clear-cut answer, but our analysis of the matter leads us to conclude that neither Idaho Sheet nor Steepleton qualifies as a retail or service establishment.
II.
8
To construe the present language of the exemption demands a knowledge of its origins. Section 13(a)(2), as it appeared in the 1938 enactment, used the present phrase 'retail or service establishment' to delimit the exemption but did not further define the concept.5 The Department of Labor's Wage and Hour Administrator initially made his interpretation of the retail exemption known through an Interpretative Bulletin and through various official statements.6 To summarize very generally, the Administrator viewed a retail establishment as one selling goods or services to private individuals for personal or family consumption; sales of these same goods or services to businesses or state agencies remained retail if sold at the normal price charged private consumers or in quantities a private consumer would buy. See Interp.Bull.No.6, 14, in 1942 WH Manual, p. 330. However, there were deviations from this consumer-goods standard in favor of employers, notable instances being the exemption of farm implement dealers and linen supply firms supplying commercial customers. See Statements of the Administrator, in 1944—1945 WH Manual, pp. 469—470.
9
In 1946 this Court decided Roland Electrical Co. v. Walling, 326 U.S. 657, 66 S.Ct. 413, 90 L.Ed. 383, holding inter alia that a business engaged in commercial wiring, electrical contracting for industry, and repair and replacement of electric motors and generators did not constitute a retail or service establishment. The opinion used considerable language suggesting that no sale of any article for business or profit-making use as opposed to personal consumption could qualify as a retail sale, a position which supported the result but went far beyond a necessary holding. See 326 U.S., at 673—677, 66 S.Ct. at 420—422. This case, and several others in this vein,7 prompted the Administrator to report to Congress that certain hitherto exempt classes of business were endangered—notably farm equipment dealers—and to recommend amending legislation. See 1948 Wage and Hour Division, Annual Report, pp. 120—121.
10
The Administrator proposed, so far as immediately relevant, to define a retail establishment as one deriving 75% of its income from retail sales and then to define as retail sales those made to private individuals for personal or family consumption, sales of the same items to any other customer if not for resale and if similar in type and quantity, and sales to farmers of goods of the type and quantity used on the ordinary farm. When Congress convened in 1949, a number of bills were introduced to amend the Act in various respects. The bill reported out by the House committee and the substitute measure first debated by the House adopted the Administrator's basic proposal, but a further substitute backed by an opposing coalition and introduced as an amendment during the debates finally prevailed and was sent to the Senate.8 This bill as passed contained the definition of exempt retail and service establishments that became law in 1949 and which remains the law today.9 The Senate during the debate of its own committee-reported bill, which did not amend the retail exemption, amended the Senate bill to conform to the House's revision of § 13(a)(2).10 Thus, when the House-Senate conference committee met to iron out other differences in the respective versions of the legislation, uniformity in the amendment to § 13(a)(2) already existed. The debates on the retail exemption in each House were substantial and several legislative documents construe the amended section.11
11
In light of the legislative history, the first question to be faced is whether the 1949 amendment requires the Secretary to treat as retail any sale of goods or services not for resale that is most customarily described or labeled as a retail transaction by those in the industry, acting or course in good faith. If the answer were yes, then both Idaho Sheet and Steepleton would deserve exemptions without more ado, since admittedly the predominant or sole usage of those in the industry applied the term retail to the questioned sales. It should not be said that this reading is without support. Most importantly, it would appear to follow from the most literal reading of the statute; the phrase 'recognized as retail * * * in the particular industry' well lends itself to an inquiry into how the businessmen concerned term their dealings. Some statements in the debates explicitly foster this reading, for example, the comment by Senator Holland who sponsored the amendment in the Senate that under his approach, 'for different commodities * * * we have to find the definition which is understood by the people dealing in that industry.' 95 Cong.Rec. 12519.12 We do not agree with the Government that this reading is necessarily infirm because the Secretary and courts may have to seek a standard or predominant use of the word retail among several uses extant in the industry. Certainly we do not agree with the further suggestion that this literal reading must give the industry self-determination as to whether the exemption applies; courts are not incompetent to distinguish between a legitimized usage fixed by established practice and one recently instituted with the aim of avoiding the law.
12
On balance, however, the arguments against this literal reading are more persuasive. At the start, such a reading would attribute to Congress a purpose going well beyond its reiterated explanation that the amendment was designed to overturn the sweeping principle of the Roland case. The legislative history is replete with evidence that the target of the amendment was Roland's proposition that no sale to a business purchaser could be a retail sale, which Senator Holland condemned by comparing the different status it gave to the sale of a batch of towels to a housewife and the same sale to a hotelkeeper. 95 Cong.Rec. 12494.13 Further, for every suggestion in the debates that Congress intended also wholly to revamp the exemption by substituting an overriding industry-usage test, there are statements that point in the other direction. Thus, Senator Holland observed that his amendment would not undo the commonly held view that quantity sales at discount prices are generally nonretail.14 It was said that the 'recognizing' is done by the Administrator and the courts as well as the merchant, 95 Cong.Rec. 12510 (remarks of Senator Holland), and that due weight must be given to the 'actual practice' in the industry, Senate Conf. Majority Statement, 95 Cong.Rec. 14877, and the 'well-settled habits of business,' 95 Cong.Rec. 12510 (remarks of Senator Holland). The lists set forth of potentially retail businesses include almost only those selling consumer goods and services. See House Conf.Rep., p. 25 (quoted p. 203, infra); 95 Cong.Rec. 11003—11004 (remarks of Mr. Lucas); 95 Cong.Rec. 12502 (remarks of Senator Holland). There are denials that the industries' own interpretations of a retail sale will be decisive.15
13
The conclusive consideration for us in rejecting the industry-usage test is that it would compel results flatly inconsistent with those Congress explicitly contemplated and might indeed work a major revolution in the Act's coverage not acknowledged in any legislative statement or report before us. The prime example of this threatened inconsistency is the problem presented to this Court in 1959 by Mitchell v. Kentucky Finance Co., 359 U.S. 290, 79 S.Ct. 756, 3 L.Ed.2d 815, where a business making small personal loans and purchasing conditional sale contracts from retailers claimed to be an exempt retail or service establishment. Although the company introduced persuasive evidence that the industry regarded its transactions as retail, the Court denied the exemption in the face of the legislative history indicating a limited purpose for the 1949 amendment and containing an express statement that '(t)he amendment does not exempt banks, insurance companies, building and loan associations, credit companies, newspapers, telephone companies, gas and electric utility companies, telegraph companies, etc., because there is no concept of retail selling or servicing in these industries.' House Conf.Rep., pp. 25—26. See Senate Conf. Majority Statement, 95 Cong.Rec. 14877. If weight is to be given to statements about the nonretail status of quantity sales at discounts, see n. 14, supra, congressional intent would be similarly frustrated by the truck tire industry's retail designation of all sales not for resale no matter how great the quantity and discount. In view of the use of the word retail in the truck tire and credit industries, it would hardly be surprising to find that newspaper, telephone, or gas and electric companies label their sales to consumers as retail. Yet the legislative history is so explicitly opposed to the extension of the retail exemption to such businesses as to provide the final argument against adopting an industry-usage test that could dictate that result.
14
Since we reject the industry's usage as the single touchstone, the question arises what meaning is to be given to the term retail. In approaching this question we agree with the Secretary that it is generally helpful to ask first whether the sale of a particular type of goods or services can ever qualify as retail whatever the terms of sale; if and only if the answer is affirmative is it then necessary to determine the terms or circumstances that make a sale of those goods or services a retail sale.
15
Plainly the typical retail transaction is one involving goods or services that are frequently acquired for family or personal use. As examples of sales that could qualify as retail, the House Conference Report lists those made 'by the grocery store, the hardware store, the coal dealer, the automobile dealer selling passenger cars or trucks, the clothing store, the dry goods store, the department store, the paint store, the furniture store, the drug store, the shoe store, the stationer, the lumber dealer, etc. * * *' House Conf.Rep., p. 25 (sale of farm machinery is another example given). See also 95 Cong.Rec. 11003—11004 (remarks of Mr. Lucas); 95 Cong.Rec. 12502 (remarks of Senator Holland). Of course Congress' conceded intent to overrule the Roland principle means sales of such goods or services can be retail 'whether made to private householders or to business users,' House Conf.Rep., p. 25, but the goods and services listed nearly all share the common characteristic that they are often purchased by householders. The legislative recital of telephone, gas and electric, and credit companies along with a number of others as businesses outside the exemption, see p. 202, supra, demonstrates that not everything the consumer purchases can be a retail sale of goods or services, but the breadth of this qualification need not here be explored.
16
What is important for this decision is that Congress also intended that the retail exemption extend in some measure beyond consumer goods and services to embrace certain products almost never purchased for family or noncommercial use. An indisputable example is the sale of farm implements. See House Conf.Rep., p. 25. Another instance is trucks, at least of some varieties, whose 'retailability' is assumed in the legislative history, e.g., 95 Cong.Rec. 12497 (remarks of Senator Holland), and confirmed by the presence of another exemption in the Act that would otherwise be difficult to understand.16 See also 95 Cong.Rec. 12495 (remarks of Senator Holland) (retailability of modest office desk). We cannot draw a precise line between such articles and those like industrial machinery which can never be sold at retail, see House Conf.Rep., p. 26, but a few characteristics of items like small trucks and farm implements may offer some guidance: their employment is very widespread as is that of consumer goods; they are often distributed in stores or showrooms and by means not dissimilar to those used for consumer goods; and perhaps it can be said that they are very frequently used in commercial activities of limited scope. While the list of strictly commercial items whose sale can be deemed retail is presumably very small, their existence precludes use of the uncomplicated 'consumer goods' test proposed by the Administrator in 1949. See pp. 197—198, supra.
17
Within the category of goods and services that can be sold at retail, naturally not every sale can be so classified. The exemption itself excludes any sale for resale and beyond that, references in the legislative history, n. 14, supra, and common parlance certainly suggest that the term retail becomes less apt as the quantity and the price discount increase in a particular transaction. Again, we do not believe the word usage of the industry must be given conclusive force. The legislative comments on discounting just cited are to the contrary; and the statute cannot easily be read to make usage control whether a particular sale is retail after we have rejected that test in deciding whether sale of a given item can ever be retail. The Secretary has in fact quite properly looked carefully at usage and practice in each industry before taking a position, 29 CFR § 779.323 (1965), but he cannot be hamstrung by the terminology of a particular trade. In view of the diversity of structure and marketing practices in different industries, flexibility is certainly appropriate, and we do not here further attempt to adduce general rules. We do note that the considerable discretion possessed by the Secretary as the one responsible for the actual administration of the Act should not be understressed. Boutell v. Walling, 327 U.S. 463, 471, 66 S.Ct. 631, 635, 90 L.Ed. 786; see United States v. American Trucking Assns., 310 U.S. 534, 549, 60 S.Ct. 1059, 1067, 84 L.Ed. 1345.
III.
18
In light of the premises now established, resolution of the two cases before us can be accomplished readily. Turning first to Idaho Sheet Metal Works, we believe it is disqualified as a retail establishment by the 80% of its gross income derived from metal work relating to the potato processing equipment. The company has stressed the wide public it serves, the display racks and other retail facilities in its building, the irregular intervals at which work on the potato equipment is performed, and the company's lineage tracing back to the 'tin shops' of yesterday. All these factors may bear upon the classification of its other sales, and if those were its sole business or three-quarters of it the company might well deserve the exemption. But § 13(a)(2) is explicit in its treatment of establishment whose sales are variegated: a business is characterized by its sales and no more than 25% of the dollar volume may derive from sales designated nonretail without loss of the exemption. See n. 2, supra. In this instance 83% of the gross income is made by sale or servicing of the potato processing equipment and we do not believe those transactions before us can be labeled retail whatever the particular terms.
19
This last conclusion follows naturally from the admitted facts. The pretrial order described the potato equipment fabricated and maintained by Idaho Sheet as vats, storage tanks, hoods, elevator buckets, and chutes. Hoods were described at trial by one purchaser as being 'five feet square on the bottom and about four feet high where they go to the vent stacks.' He also testified that the tanks held as much as '5,000 pounds of peeled potatoes,' and that chutes were about 12 feet long. If this testimony is not fairly representative of the nature of the equipment under scrutiny, there is no indication of that from Idaho Sheet, upon which lies the burden of establishing the facts requisite to an exemption. Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 80 S.Ct. 453, 4 L.Ed.2d 393. The type of equipment described plainly appears to have no private or noncommercial utility. Nor does it bear much resemblance to those strictly commercial articles earlier named that may be sold at retail. Unlike small trucks and farm equipment, the market for these goods is highly limited, and far from being stock items purchased off the shelf, these articles were generally fabricated to meet individual specifications.17 In the 83% of its business relating to the potato equipment, Idaho Sheet seems hardly distinguishable from 'an establishment engaged in the sale and servicing of manufacturing machinery and manufacturing equipment used in the production of goods,' which the House Conference Report flatly stated could not be exempt. House Conf.Rep., p. 26. Since in our view this potato equipment cannot be the subject of a retail sale, we have no occasion to consider the company's claim that the pricing and quantity of its particular sales of the equipment conform to retail standards.
20
The second case, involving the Steepleton tire business, is in some respects more intricate. The Government has alleged, and Steepleton does not deny, that better than half the company's dollar volume derives from sales to companies operating fleets of commercial vehicles and other heavy industrial machinery such as earth-moving equipment. The Government's first ground for withholding the exemption is that tire transactions relating to large trucks and industrial vehicles are intrinsically nonretail whatever the terms. It analogizes these vehicles to industrial machinery and then would treat the tires just as the trucks. And it stresses the ties between these vehicles and interstate commerce.
21
Admitting that the argument has force, we do not accept it. Among the few strictly commercial articles that Congress pretty plainly viewed as retailable were trucks in at least some varieties, as we have already shown. No reason appears why the sale of tires for those trucks should be distinguished and not allowed to qualify as retailable items. The strength of the Government's position lies in its readiness to separate big trucks and tires from little trucks and tires. The Secretary, however, seemingly has chosen not to classify truck tires on this basis but instead treats all truck tires as capable of being sold at retail.18 A decision of this kind, no doubt turning in part on problems of administration and facets of industry practice, clearly implicates the Secretary's discretion, and we see no cause to disturb its exercise in this case.
22
Steepleton is, nevertheless, deprived of the retail establishment exemption because—as the Government alternatively contended—it has failed to show that the tire dealings in question were made on terms and in circumstances that qualify them as retail within the Secretary's guidelines. The guidelines class as nonretail all sales to fleets of five or more vehicles at 'wholesale prices,' a wholesale price being defined as that charged on sales for resale or on sales to 10-vehicle fleets. See n. 18, supra. These guidelines, reportedly designed after inquiry into industry practices, are quite evidently aimed at excluding from the retail category sales generally made at significant discounts and in quantity. Given the common conception of the term retail and references in the legislative history to discount sales, see n. 14, supra, we see no reason not to sustain these guidelines; indeed, the company does not even appear to discuss them, save as is implicit in its claims that the Secretary's position here does not correspond to word usage in the industry.
23
In concluding that Steepleton has not proved itself exempt, a certain indefiniteness in the record should be noted. The Government showed at trial that many of the sales were to large fleets, that a number of purchasers said they received discounts, that the practice in the industry was to grant significant discounts for fleet sales, that some sales were for resale or pursuant to bids to public agencies, and pointed out other facts directed at showing nonexemption under the guidelines. Despite this evidence, there is unclarity as to the precise percentages of dollar volume attributable to the various sales that the guidelines label nonretail. However, the burden of proof respecting exemptions is upon the company, as earlier indicated, and since we uphold the Secretary's test, that burden has not been met. If Steepleton had alleged on appeal that it could meet the Secretary's standards if they prevailed, even then we would hesitate to order a remand since the Secretary's position has been known from the outset. In all events, Steepleton has not even claimed in this Court that the Secretary's standards could be met.
24
The judgment of the Court of Appeals in No. 30 is affirmed; the judgment of the Court of Appeals in No. 31 is reversed. It is so ordered.
25
Judgment of Court of Appeals in No. 30 affirmed; judgment of Court of Appeals in No. 31 reversed.
1
52 Stat. 1060, as amended, 29 U.S.C. §§ 201—219 (1964 ed.). Sections 6, 7, codified as §§ 206, 207, respectively cover minimum wages and overtime pay. The commerce coverage of the Act, through a special definition of 'production,' is drawn in generous terms. See § 3(j), codified as § 203(j).
2
52 Stat. 1067, as amended, 29 U.S.C. § 213(a)(2) (1964 ed.). The section provides that the minimum wage and overtime pay provisions of the Act shall not apply to:
'(2) any employee employed by any retail or service establishment, more than 50 per centum of which establishment's annual dollar volume of sales of goods or services is made within the State in which the establishment is located, if such establishment—
'* * * (meets one of four tests, designated '(i)—(iv)' and framed with reference to another section of the Act). 'A 'retail or service establishment' shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.'
3
This requirement has been met by the companies in this case. Section 13(a)(4) of the Act, added in 1949 by 63 Stat. 917, 29 U.S.C. § 213(a)(4) (1964 ed.), provides that an establishment that makes or processes the goods it sells may qualify as exempt if it meets the tests of § 13(a)(2) and 'is recognized as a retail establishment in the particular industry' and makes more than 85% of its annual dollar volume of sales of such goods within the State. So far as the companies in this case may be deemed to make or process the goods they sell, the Government is apparently satisfied that the added requirements of § 13(a)(4) have been met or at least is unwilling to rely upon them.
4
These four tests were added to § 13(a)(2) in 1961 by 75 Stat. 71. The Government has not suggested that this amendment would disqualify either of the companies in the present case.
5
The 1938 version read: '(a) The provisions of sections 6 and 7 shall not apply with respect to * * * (2) any employee engaged in any retail or service establishment the greater part of whose selling of servicing is in intrastate commerce.' 52 Stat. 1067.
6
This Bulletin, designated No. 6, appears along with other official statements in various editions of the BNA Wage and Hour Manual (hereafter cited as WH Manual), e.g., 1942 edition. The Secretary's present views are stated in 29 CFR §§ 779—779.515 (1965).
7
See Martino v. Michigan Window Cleaning Co., 327 U.S. 173, 66 S.Ct. 379, 90 L.Ed. 603; Boutell v. Walling, 327 U.S. 463, 66 S.Ct. 631, 90 L.Ed. 786. See also McComb v. Factory Stores Co., D.C., 81 F.Supp. 403; McComb v. Diebert, 16 CCH Labor Cas. 64,982.
8
The bill reported out of committee was H.R. 3190, 81st Cong., 1st Sess., accompanied by H.R.Rep. No. 267. The first substitute was H.R. 5856, brought to debate by H.Res. 183. The final, successful version retained the number H.R. 5856 but was drawn from H.R. 5894. See generally 6 Lab.Rel.Rep., p. 90:459 (1961).
9
The only difference between the 1949 version of § 13(a)(2) and current law derives from the 1961 amendment to the section, which is not relevant in this case. See n. 4, supra, and accompanying text.
10
The bill reported out of committee was S. 653, 81st Cong., 1st Sess., accompanied by S.Rep. No. 640, U.S.Code Congressional and Administrative News 1949, p. 2241. The amendment was offered at 95 Cong.Rec. 12491 and passed at 95 Cong.Rec. 12520.
11
The principal debates appear at various points in 95 Cong.Rec. 11002—11203 (House), 12490—12520 (Senate). No initial committee reports discuss the ultimately successful version of § 13(a)(2) but a pertinent statement of the House members of the conference committee appears in H.R.Conf.Rep. No. 1453, 81st Cong., 1st Sess., pp. 24—26 (hereafter cited as House Conf.Rep.), U.S.Code Congressional and Administrative News 1949, p. 2251. There is also a relevant but less authoritative statement of the majority of Senate conferees (hereafter cited as Senate Conf. Majority Statement) appearing at 95 Cong.Rec. 14877.
12
Other comments in some measure favoring the most literal construction are those assuming that each industry has an established understanding of what is a retail sale, e.g., 95 Cong.Rec. 12502 (remarks of Senator Holland), 12516 (remarks of Senator Taft); those few which seem to equate 'recognized as retail' with 'regarded as retail,' 95 Cong.Rec. 11003 (remarks of Mr. Lucas, sponsor of the prevailing version in the House), 12502 (remarks of Senator Holland); and one or two suggesting that a discount sale may qualify as retail, 95 Cong.Rec. 11003 (remarks of Mr. Lucas), 11199 (remarks of Mr. McConnell).
13
See House Conf.Rep., p. 24 ('This clarification (the amended § 13(a)(2)) is needed in order to obviate the sweeping ruling of the Administrator and the courts that no sale of goods or services for business use is retail. See Roland Electrical Co. v. Walling * * *.'); 95 Cong.Rec. 11003 (remarks of Mr. Lucas); 95 Cong.Rec. 11203 (remarks of Mr. Celler).
14
'Of course if * * * (a sale is 'made in such quantity that discounts are allowed') it comes in the category of wholesale sales.' 95 Cong.Rec. 12501. Perhaps more ambiguousy, Senator Holland also stated: 'If sales were made in sufficient quantity so there would be a discount and they would be regarded not as retail sales, but as wholesale sales, they would lose their exemption.' 95 Cong.Rec. 12497. See also 95 Cong.Rec. 12505. But cf. 95 Cong.Rec. 11003 (remarks of Mr. Lucas).
15
'MR. DOUGLAS. I understand that the interpretation which would be made would be that given to 'retail sale' by a trade association.
'Mr. HOLLAND. That is one criterion, of course; but I do not believe the Senator from Illinois, and certainly not the Senator from Florida, would wish to delegate full authority in the matter to a trade association or any other interested group.' 95 Cong.Rec. 12501.
See also 95 Cong.Rec. 12510 (remarks of Senator Holland).
16
Section 13(a)(19), added in 1961 by 75 Stat. 73, 29 U.S.C. § 213(a)(19) (1964 ed.), exempts from the minimum wage and overtime pay requirements 'any employee of a retail or service establishment which is primarily engaged in the business of selling automobiles, trucks, or farm implements' regardless of whether the establishment meets the further tests of § 13(a)(2), notably those added in 1961, see n. 4, supra, and accompanying text. Quite evidently this section contemplates that a business primarily selling trucks may be a retail establishment.
17
The company relies upon Wirtz v. Modern Trashmoval, Inc., 323 F.2d 451, in which the Fourth Circuit as an alternative ground of decision held a trash collection business to be a retail or service establishment under the Act. We need go no further than to say the case is quite distinguishable; trash removal is not only a widespread need in the commercial world but is required by private families.
18
29 CFR § 779.373 (1965) relevantly provides that for purposes of § 13(a) (2) 'all sales of tires, tubes, accessories and tire repair services, including retreading and recapping' are classified as retail, with a series of exceptions including:
'(d) Sales to fleet accounts at wholesale prices: * * * a 'fleet account' is a customer operating five or more automobiles or trucks for business purposes. Wholesale prices * * * are prices equivalent to, or less than, those typically charged on sales for resale. * * * If the establishment makes no sales of truck tires for resale, the wholesale price * * * (is) the price charged * * * on sales of truck tires to fleet accounts operating 10 or more commercial vehicles, or if the establishment makes no such sales * * * (it is) the price typically charged in the area on (such) sales * * *.'
| 67
|
383 U.S. 169
86 S.Ct. 749
15 L.Ed.2d 681
UNITED STATES, Petitioner,v.Thomas F. JOHNSON.
No. 25.
Argued Nov. 11 and 15, 1965.
Decided Feb. 24, 1966.
Beatrice Rosenberg, Washington, D.C., for petitioner.
George Cochran Doub, Washington, D.C., and David W. Louisell, Berkeley, Cal., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Respondent Johnson, a former United States Congressman, was indicted and convicted on seven counts of violating the federal conflict of interest statute, 18 U.S.C. § 281 (1964 ed.),1 and on one count of conspiring to defraud the United States, 18 U.S.C. § 371 (1964 ed.).2 The Court of Appeals for the Fourth Circuit set aside the conviction on the conspiracy count, 337 F.2d 180, holding that the Government's allegation that Johnson had conspired to make a speech for compensation on the floor of the House of Representatives was barred by Art. I, § 6, of the Federal Constitution which provides that 'for any Speech or Debate in either House, they (Senators and Representatives) shall not be questioned in any other Place.' The Court of Appeals ordered a new trial on the other counts, having found that the evidence adduced under the unconstitutional aspects of the conspiracy count had infected the entire prosecution.
2
The conspiracy of which Johnson and his three codefendants were found guilty consisted, in broad outline, of an agreement among Johnson, Congressman Frank Boykin of Alabama, and J. Kenneth Edlin and William L. Robinson who were connected with a Maryland savings and loan institution, whereby the two Congressmen would exert influence on the Department of Justice to obtain the dismissal of pending indictments of the loan company and its officers on mail fraud charges. It was further claimed that as a part of this general scheme Johnson read a speech favorable to independent savings and loan associations in the House, and that the company distributed copies to allay apprehensions of potential depositors. The two Congressmen approached the Attorney General and the Assistant Attorney General in charge of the Criminal Division and urged them 'to review' the indictment. For these services Johnson received substantial sums in the form of a 'campaign contribution' and 'legal fees.' The Government contended, and presumably the jury found, that these payments were never disclosed to the Department of Justice, and that the payments were not bona fide campaign contributions or legal fees, but were made simply to 'buy' the Congressman.
3
The bulk of the evidence submitted as to Johnson dealt with his financial transactions with the other conspirators, and with his activities in the Department of Justice. As to these aspects of the substantive counts and the conspiracy count, no substantial question is before us. 18 U.S.C. § 371 has long been held to encompass not only conspiracies that might involve loss of government funds, but also 'any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government.' Haas v. Henkel, 216 U.S. 462, 479, 30 S.Ct. 249, 254, 54 L.Ed. 569. No argument is made, nor do we think that it could be successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in the attempt to influence the Department of Justice, that is in no wise related to the due functioning of the legislative process. It is the application of this broad conspiracy statute to an improperly motivated speech that raises the constitutional problem with which we deal.3
I.
4
The language of the Speech or Debate Clause clearly proscribes at least some of the evidence taken during trial. Extensive questioning went on concerning how much of the speech was written by Johnson himself, how much by his administrative assistant, and how much by outsiders representing the loan company.4 The government attorney asked Johnson specifically about certain sentences in the speech, the reasons for their inclusion and his personal knowledge of the factual material supporting those statements.5 In closing argument the theory of the prosecution was very clearly dependent upon the wording of the speech.6 In addition to questioning the manner of preparation and the precise ingredients of the speech, the Government inquired into the motives for giving it.7
5
The constitutional infirmity infecting this prosecution is not merely a matter of the introduction of inadmissible evidence. The attention given to the speech's substance and motivation was not an incidental part of the Government's case, which might have been avoided by omitting certain lines of questioning or excluding certain evidence. The conspiracy theory depended upon a showing that the speech was made solely or primarily to serve private interests, and that Johnson in making it was not acting in good faith, that is, that he did not prepare or deliver the speech in the way an ordinary Congressman prepares or delivers an ordinary speech. Johnson's defense quite naturally was that his remarks were no different from the usual congressional speech, and to rebut the prosecution's case he introduced speeches of several other Congressmen speaking to the same general subject, argued that his talk was occasioned by an unfair attack upon savings and loan associations in a Washington, D.C., newspaper, and asserted that the subject matter of the speech dealt with a topic of concern to his State and to his constituents. We see no escape from the conclusion that such an intensive judicial inquiry, made in the course of a prosecution by the Executive Branch under a general conspiracy statute, violates the express language of the Constitution and the policies which underlie it.
II.
6
The Speech or Debate Clause of the Constitution was approved at the Constitutional Convention without discussion and without opposition. See V Elliot's Debates 406 (1836 ed.); II Records of the Federal Convention 246 (Farrand ed. 1911). The present version of the clause was formulated by the Convention's Committee on Style, but the original vote of approval was of a slightly different formulation which repeated almost verbatim the language of Article V of the Articles of Confederation: 'Freedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress * * *.' The language of that Article, of which the present clause is only a slight modification, is in turn almost identical to the English Bill of Rights of 1689: 'That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.' 1 W. & M., Sess. 2, c. 2.
7
This formulation of 1689 was the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators.8 Since the Glorious Revolution in Britain, and throughout United States history, the privilege has been recognized as an important protection of the independence and integrity of the legislature. See, e.g., Story, Commentaries on the Constitution § 866; II The Works of James Wilson 37—38 (Andrews ed. 1896). In the American governmental structure the clause serves the additional function of reinforcing the separation of powers so deliberately established by the Founders. As Madison noted in Federalist No. 48:
8
'It is agreed on all sides, that the powers properly belonging to one of the departments, ought not to be directly and compleatly administered by either of the other departments. It is equally evident, that neither of them ought to possess directly or indirectly, an overruling influence over the others in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating therefore in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary; the next and most difficult task, is to provide some practical security for each against the invasion of the others. What this security ought to be, is the great problem to be solved.' (Cooke ed.)
9
The legislative privilege, protecting against possible prosecution by an unfriendly executive and conviction by a hostile judiciary, is one manifestation of the 'practical security' for ensuring the independence of the legislature.
10
In part because the tradition of legislative privilege is so well established in our polity, there is very little judicial illumination of this clause. Clearly no precedent controls the decision in the case before us. This Court first dealt with the clause in Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377, a suit for false imprisonment alleging that the Speaker and several members of the House of Representatives ordered the petitioner to be arrested for contempt of Congress. The Court held first that Congress did not have power to order the arrest, and second that were it not for the privilege, the defendants would be liable. The difficult question was whether the participation of the defendants in passing the resolution ordering the arrest was 'speech or debate.' The Court held that the privilege should be read broadly, to include not only 'words spoken in debate,' but anything 'generally done in a session of the House by one of its members in relation to the business before it.' 103 U.S., at 204.
11
In Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019, at issue was whether legislative privilege protected a member of the California Legislature against a suit brought under the Civil Rights statute, 8 U.S.C. §§ 43, 47(3) (1946 ed.), alleging that the legislator had used his official forum 'to intimidate and silence plaintiff and deter and prevent him from effectively exercising his constitutional rights of free speech and to petition the Legislature for redress of grievances * * *.' 341 U.S., at 371, 71 S.Ct. at 785. The Court held a dismissal of the suit proper; it viewed the state legislative privilege as being on a parity with the similar federal privilege, and concluded that
12
'The claim of an unworthy purpose does not destroy the privilege. * * * The holding of this Court in Fletcher v. Peck, 6 Cranch 87, 130, 3 L.Ed. 162, that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned.' 341 U.S., at 377, 71 S.Ct., at 788.
III.
13
Kilbourn and Tenney indicate that the legislative privilege will be read broadly to effectuate its purposes; neither case deals, however, with a criminal prosecution based upon an allegation that a member of Congress abused his position by conspiring to give a particular speech in return for remuneration from private interests. However represensible such conduct may be, we believe the Speech or Debate Clause extends at least so far as to prevent it from being made the basis of a criminal charge against a member of Congress of conspiracy to defraud the United States by impeding the due discharge of government functions. The essence of such a charge in this context is that the Congressman's conduct was improperly motivated, and as will appear that is precisely what the Speech or Debate Clause generally forecloses from executive and judicial inquiry.
14
Even though no English or American case casts bright light on the one before us9 it is apparent from the history of the clause that the privilege was not born primarily of a desire to avoid private suits such as those in Kilbourn and Tenney, but rather to prevent intimidation by the executive and accountability before a possibly hostile judiciary. In the notorious proceedings of King Charles I against Eliot, Hollis, and Valentine, 3 How.St.Tr. 294 (1629), the Crown was able to imprison members of Commons on charges of seditious libel and conspiracy to detain the Speaker in the chair to prevent adjournment.10 Even after the Restoration, as Holdsworth noted, '(t)he law of seditious libel was interpreted with the utmost harshness against those whose political or religious tenets were distasteful to the government.' VI Holdsworth, A History of English Law 214 (1927). It was not only fear of the executive that caused concern in Parliament but of the judiciary as well, for the judges were often lackeys of the Stuart monarchs,11 levying punishment more 'to the wishes of the crown than to the gravity of the offence.' Id., at 214—215. There is little doubt that the instigation of criminal charges against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege in England and, in the context of the American system of separation of powers, is the predominate thrust of the Speech or Debate Clause. In scrutinizing this criminal prosecution, then, we look particularly to the prophylactic purposes of the clause.12
15
The Government argues that the clause was meant to prevent only prosecutions based upon the 'content' of speech, such as libel actions, but not those founded on 'the antecedent unlawful conduct of accepting or agreeing to accept a bribe.' Brief of the United States, at 11. Although historically seditious libel was the most frequent instrument for intimidating legislators, this has never been the sole form of legal proceedings so employed,13 and the language of the Constitution is framed in the broadest terms. The broader thrust of the privilege is indicated by a nineteenth century British case, Ex parte Wason, L.R. 4 Q.B. 573 (1869), which dealt specifically with an alleged criminal conspiracy. There a private citizen moved that a magistrate be required to prosecute several members of the House of Lords for conspiring wrongfully to prevent his petition from being heard on the floor. The court denied the motion, stating that statements made in the House 'could not be made the foundation of civil or criminal proceedings * * *. And a conspiracy to make such statements would not make the person guilty of it amenable to the criminal law.' Id., at 576. (Cockburn, C.J.) Mr. Justice Lush added, 'I am clearly of opinion that we ought not to allow it to be doubted for a moment that the motives or intentions of members of either House cannot be inquired into by criminal proceedings with respect to anything they way do or say in the House.' Id., at 577.
16
In the same vein the Government contends that the Speech or Debate Clause was not violated because the gravamen of the count was the alleged conspiracy, not the speech, and because the defendant, not the prosecution, introduced the speech itself.14 Whatever room the Constitution may allow for such factors in the context of a different kind of prosecution, we conclude that they cannot serve to save the Government's case under this conspiracy count. It was undisputed that Johnson delivered the speech; it was likewise undisputed that Johnson received the funds; controversy centered upon questions of who first decided that a speech was desirable, who prepared it, and what Johnson's motives were for making it. The indictment itself focused with particularity upon motives underlying the making of the speech and upon its contents:
17
'(15) It was a part of said conspiracy that the said THOMAS F. JOHNSON should * * * render services, for compensation, * * * to wit, the making of a speech, defending the operations of Maryland's 'independent' savings and loan associations, the financial stability and solvency thereof, and the reliability and integrity of the 'commercial insurance' on investments made by said 'independent' savings and loan associations, on the floor of the House of Representatives.' App. 5—6.
18
We hold that a prosecution under a general criminal statute dependent on such inquiries necessarily contravenes the Speech or Debate Clause. We emphasize that our holding is limited to prosecutions involving circumstances such as those presented in the case before us. Our decision does not touch a prosecution which, though as here founded on a criminal statute of general application, does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them. And, without intimating any view thereon, we expressly leave open for consideration when the case arises a prosecution which, though possibly entailing inquiry into legislative acts or motivations, is founded upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members.15
19
The Court of Appeals' opinion can be read as dismissing the conspiracy count in its entirety. The making of the speech, however, was only a part of the conspiracy charge. With all references to this aspect of the conspiracy eliminated, we think the Government should not be precluded from a new trial on this count, thus wholly purged of elements offensive to the Speech or Debate Clause.
IV.
20
The Court of Appeals held that Johnson was entitled to a new trial on the conflict of interest counts because the admission of evidence concerning the speech aspect of the conspiracy count was prejudicial on these other counts as well. The Government reserved the right to contest the order of a new trial, but, except for a footnote in its reply brief, it did not so argue in this Court; on the contrary it stated in oral argument that it stood solely on its position with reference to the conspiracy count.16 In these circumstances we find no occasion to review the Court of Appeals' assessment of the record in this respect.
21
For the foregoing reasons we affirm the judgment of the Court of Appeals and remand the case to the District Court for further proceedings consistent with this opinion.
22
It is so ordered.
23
Mr. Justice BLACK took no part in the decision of this case.
24
Mr. Justice WHITE took no part in the consideration or decision of this case.
25
Mr. Chief Justice WARREN, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, concurring in part and dissenting in part.
26
I concur in the limited holding of the Court that the use of the Congressman's speech during this particular trial—with an examination into its authorship, motivation and content—was violative of the Speech or Debate Clause. I also join the Court in its remand of the conspiracy count for a new trial, this time purged of offensive matter. The Court's refusal to decide the validity of the conviction under the seven substantive counts, however, prompts me to dissent. In my view, the conflict of interest counts are properly before us, raise important questions and should be resolved now since the respondent will probably raise these issues on his forthcoming reprosecution.
I.
27
The Court explains its refusal to reach the substantive counts by referring to a single statement made by the Government's counsel at the outset of oral argument, p. 186, n. 16, ante. In the same colloquy, the Government remarked that it did not consider the issues raised by the substantive counts to be of general importance, and felt that the question of the effect of the tainted evidence on these counts would unavoidably require an examination of the entire 1,300-page record. Prior to oral argument, the Government had argued these issues exhaustively in the Court of Appeals, and had mentioned them in its petition for certiorari in compliance with Supreme Court Rule 40(1)(d)(1) and (2), and in its reply brief on the merits. Both in its reply brief and later in oral argument, in answer to inquiries from the Bench, it contended that the evidence, arguments and instructions on the conspiracy count were distinct from the substantive counts. At best, then, the Government's position is ambiguous, if not puzzling.1 Beyond that, the respondent himself specifically urged this Court to consider the issues in his brief on the merits, pp. 100—101 and n. 86, devoted 33 pages of argument to this phase of the case and addressed himself to the questions on oral argument. Under these unique circumstances, I think it is our duty carefully to scrutinize all the facts and issues involved in the prosecution.
II.
28
After reading the record, it is my conclusion that the Court of Appeals erred in determining that the evidence concerning the speech infected the jury's judgment on the substantive counts. The evidence amply supports the prosecution's theory and the jury's verdict on these counts—that the respondent received over $20,000 for attempting to have the Justice Department dismiss an indictment against his co-conspirators, without disclosing his role in the enterprise. This is the classic example of a violation of § 281 by a Member of the Congress.2 See May v. United States, 84 U.S.App.D.C. 233, 175 F.2d 994, 1006; United States v. Booth, 148 F. 112, 117 (Cir.Ct. Ore.). The arguments of government counsel and the court's instructions separating the conspiracy from the substantive counts seem unimpeachable. The speech was a minor part of the prosecution. There was nothing in it to inflame the jury and the respondent pointed with pride to it as evidence of his vigilance in protecting the financial institutions of his State. The record further reveals that the trial participants were well aware that a finding of criminality on one count did not authorize similar conclusions as to other counts, and I believe that this salutary principle was conscientiously followed. Therefore, I would affirm the convictions on the substantive counts.
1
'Whoever, being a Member of or Delegate to Congress, * * * directly or indirectly receives or agrees to receive, any compensation for any services rendered or to be rendered, either by himself or another, in relation to any proceeding, contract, claim, controversy, charge, accusation, arrest, or other matter in which the United States is a party or directly or indirectly interested, before any department, agency, court martial, officer, or any civil, military, or naval commission, shall be fined not more than $10,000 or imprisoned not more than two years, or both; and shall be incapable of holding any office of honor, trust, or profit under the United States.'
2
'If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.'
3
Only the question of the applicability of the Speech or Debate Clause to the prosecution of Johnson is before us. The Court of Appeals affirmed the convictions of co-defendants Edlin and Robinson whose appeals were consolidated with that of Johnson and, except for a brief as amicus curiae submitted by Edlin, questions raised in those cases have not been presented to us. The defendant Boykin took no appeal from his conviction.
4
See direct examination by the prosecution of Martin Heflin, App. 182—191, esp. 189—190:
'Q. What, if anything, did Congressman Johnson do with the material which Mr. Robinson brought in and gave to him? A. As I recall, Mr. Johnson said that his administrative assistant * * * would go over the material, too and if I am not mistaken, Mr. Johnson called him in and Buarque took the material and I left the office with Mr. Buarque to discuss it some more.
'Q. After that meeting did you at any time thereafter have any contact either with Congressman Johnson or his office with regard to the speech? A. I telephoned a time or two there and I think I was called by Mr. Buarque and asked him about certain figures that the Institute—background material that might be supplied, and I did supply additional material and I believe Mr. Buarque sent me a draft, himself, with certain places, blank places for figures to be filled in. We had a discussion about some of the technical phases (sic) and information, statistical information and so forth.
'Q. You supplied some of the facts and figures for the draft that Mr. Buarque sent you? A. Yes.
'Q. What did you do with that draft once you had looked it over? A. Returned it.'
See also cross-examination of Manual Buarque, App. 488—494; cross-examination of co-defendant Robinson, App. 772—775; cross-examination of defendant Johnson, Transcript 79—93.
5
See cross-examination of Johnson, Transcript 84—86:
'Q. And did you not tell Mr. Heflin when he came to see you in your office after that luncheon that he should work with Mr. Buarque on the preparation of the speech which was ultimately given on June 30? A. My statement is the same as it has always been that Mr. Heflin came to my office, representing himself as a public relations man, for a certain institute of Independent Savings and Loan Associations. He had the article of one of the local newspapers. A very unfair attack which he claimed had been made on savings and loans. He talked with me a very short time. I told him that Mr. Buarque, my administrative assistant, did all of my writing, all of the conversations and if there were any answers to be made,—he went out with me to the next room, met Mr. Buarque and I left the two together.
'Q. You told him, did you not, that he should work with Mr. Buarque on the matter since Mr. Buarque prepared your speeches? A. I told him at the time to discuss it with Mr. Buarque and any arrangements Mr. Buarque wanted to make, why, he, of course, would be cooperative with him.
'Q. Now, you say that at that time—I assume you meant at the time of the speech—that one savings association meant nothing more to you than another. Is that what you referred to? A. Not only then but following the speech, too.
'Q. I believe you testified on direct examination that you did not know the name of First Continental Savings and Loan or First Colony Savings and Loan at the time this speech was delivered on June 30, is that your testimony? A. I think my testimony is that one name did not mean more than another.
'Q. Now, your speech was finally delivered or submitted to the clerk and it was printed in the Congressional Record, and it stresses the value of commercial mortgage guaranty insurance, does it not? A. I think it has a reference to it, yes.
'Q. Isn't it a fact that at the time of the speech, First Continental and First Colony were the only independent savings and loan associations in the State of Maryland which carried commercial mortgage guaranty insurance? A. I have no knowledge of that and did not know at the time.
'Q. You have no knowledge of that? A. None, whatever.
'Q. As a matter of fact, that language in your speech, Congressman, was a part of the language which Mr. Edlin emphasized in his reprint, was it not? A. May I say that I did not see any of the so-called 'reprints."
And see Transcript 91:
'Q. Congressman, do you mean to tell the jury that Mr. Buarque put that language in the speech about three indicted institutions and none convicted, and you did not inquire as to which particular institutions they were? A. He did not tell me which they were, the names.
'Q. Well, let me ask you this: How could you, if you did not know which institutions were under indictment, how could you make this statement in your speech:
"I personally do not know any of these institutions nor any of the circumstances leading to their respective indictments. I hold no brief for any of them, one way or another.'
'That is the language of your speech, is it not? A. Yes, I said that is the prepared speech which had been testified that Mr. Buarque with some help from Heflin, prepared.'
6
See Oral Argument on behalf of the Government, Transcript 232—248, esp. 244—245:
'I submit to you members of the jury, there is no other logical explanation you can make but that that speech was made solely for the purposes of Mr. Kenneth Edlin. It was a day's work for a day's pay for the man to whom he was selling his Congressional Office and his Congressional influence.
'Congressman Johnson has claimed on the stand in this case that he did not then know that the First Colony Savings and Loan Association was then under indictment.
'Now, you will recall the language in the speech, itself, that out of 400 independent savings and loan associations in Maryland, exactly three of them have been indicted and none convicted.
'(')Personally, I do not know any of these indicted institutions nor any of the circumstances leading to their respective indictments. I hold no brief for any of them one way or the other.(')
'Congressman Johnson claimed under oath, Members of the Jury, that he did not even bother to check the facts to ascertain whether he could truthfully make such a statement in his speech.
'If so, I submit to you, it was utterly and completely irresponsible and reprehensible, but the Government submits that that is not so and that that was not a fact. The Government submits that Congressman Johnson did know at that time that both First Colony and Mr. Edlin were then under indictment in this very Court and that he, nevertheless made those statements in the speech which he delivered on June 30, 1960.
'Those statements, Members of the Jury, the Government submits were completely untrue and deceitful.'
7
See, e.g., cross-examination of Johnson, Transcript 79—81:
'Q. Now, Congressman, you told Mr. Estabrook on December 20, 1961, in London, did you not, that this speech had been made at the urging of several of your own people or of your own constituents? Is that not a fact? A. Which conference are you speaking of with Mr. Estabrook?
'Q. As a matter of fact, then, except for Mr. Buarque, whom you term a constituent, no constituent of yours ever spoke to you about making that speech on the floor of the House of Congress, is that not correct? A. It could be. I do not recall.
'Q. You would be—you would not delay it? A. No.
'Q. Is it not a fact that prior to that speech Congressman, you had never discussed savings and loan programs or problems with any of your constituents on the Eastern Shore of Maryland? A. Oh, I think possibly I had. I do not know to what degree but I want to say too, that the speech you refer to there was a motivation that Mr. Buarque testified that I was interested in a statewide election for the Senate in 1964.'
8
See generally C. Wittke, The History of English Parliamentary Privilege (Ohio State Univ. 1921); Neale, The Commons' Privilege of Free Speech in Parliament in Tudor Studies (Seton-Watson ed. 1924).
9
Compare The King v. Boston, 33 Commw.L.R. 386 (Austl.1923); The Queen v. White, 13 Sup.Ct.R. 322 (N.S.W.1875); Regina v. Bunting, 7 Ont. 524 (1885), for commonwealth cases dealing with the general question of liability of legislators for bribery in distinguishable contexts. See 78 Harv.L.Rev. 1473, 1474.
10
The court in that case attempted to distinguish between the true privilege and unlawful conspiracies:
'And we hereby will not draw the true Liberties of Parliament-men into question; to wit, for such matters which they do or speak in a parliamentary manner. But in this case there was a conspiracy between the Defendants to slander the state, and to raise sedition and discord between the king, his peers, and people; and this was not a parliamentary course.
'That every of the Defendants shall be imprisoned during the king's pleasure: Sir John Elliot to be imprisoned in the Tower of London, and the other Defendants in other prisons.' 3 How.St.Tr., at 310.
See the account in Taswell-Langmead's English Constitutional History (Plucknett ed. 1960), at 376—378. After the Restoration, some 38 years after the trial, Parliament resolved that the judgment 'was an illegal judgment, and against the freedom and privilege of Parliament.' The House of Lords reversed the convictions in 1668. See Taswell-Langmead, supra, at 378, note 55.
11
See Holdsworth, supra, at 503—511.
12
Compare Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, and New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, for expressions of the central importance to our political system of uninhibited political expression as guaranteed to the general populace by the First and Fourteenth Amendments.
13
See, e.g., Strode's Case, one of the earliest and most important English cases dealing with the privilege. In 1512 Richard Strode, a member of Commons from Devonshire, introduced a bill regulating tin miners which appears to have been motivated by a personal interest. He was prosecuted in a local Stannary Court, a court of special jurisdiction to deal with tin miners, for violating a local law making it an offense to obstruct tin mining. He was sentenced and imprisoned. Parliament released him in a special bill, declaring 'That suits, accusements, condemnations, executions, fines, amerciaments, punishments, corrections, grievances, charges, and impositions, put or had, or hereafter to be put or had, unto or upon the said Richard, and to every other of the person or persons afore specified that now be of this present Parliament, or that of any Parliament hereafter shall be, for any bill, speaking, reasoning, or declaring of
any matter or matters concerning the Parliament to be communed and treated of, be utterly void and of none effect.' 4 Hen. 8, c. 8, as reproduced in Tanner, Tudor Constitutional Documents 558, 559 (2d ed. 1930); see Taswell-Langmead, supra, at 248—249. During the prosecution of Sir John Eliot in 1629 it was argued that Strode's Act applied to all legislators, but the court held that it was a private act. 3 How.St.Tr. 294, 309. In 1667 both Houses of Parliament declared by formal resolutions that Strode's Act was a general law, 'And that it extends to indemnify all and every the Members of both Houses of Parliament, in all Parliaments, for and touching all Bills, speaking, reasoning, or declaring of any Matter or Matters in and concerning the Parliament, to be communed and treated of, and is only a declaratory law of the antient and necessary Rights and Privileges of Parliament.' I Hatsell, Precedents of Proceedings in the House of Commons 86—87 (1786); see Taswell-Langmead, supra, at 378, note 55. The central importance of Strode's case in English constitutional history is persuasive evidence that the parliamentary privilege meant more than merely preventing libel and treason prosecutions.
14
The Government, however, did introduce a reprint of the speech in its case-in-chief, in order to show how the co-conspirators made use of it. Certain portions were shown to be outlined in red because, as the prosecution's witness testified, 'these were the points most pertinent to what we were trying to put across and for ease in the person's reading it.' App. 259. The use of a copy of the speech in this context necessarily required the jury to read those portions and to reflect upon its substance.
15
Cf. Note, The Bribed Congressman's Immunity from Prosecution, 75 Yale L.J. 335, 347—348 (1965).
16
In oral argument, government counsel stated as follows:
'And so the question that we brought to the Court, and the only question that we think is properly involved in this case now, revolves around the taking of money to give a speech on the floor of Congress.'
Question from the Bench: 'Well, was there (to be) a new trial on the other phase of it?'
Government Counsel: 'It (the Court of Appeals) ordered a new trial on the other phase. And we have not brought that issue here. We reserved it in our petition but we did not argue it, I might say largely because it cannot be determined without reading the whole record. The question in this case which we did bring here, and which we think is the question involved, is this: Article 1, Section 6 of the Constitution provides that for any speech or debate in either House, no member of Congress shall be questioned in any other place. And as we view it, the question is, does that Speech or Debate Clause mean that Congress is without power under the Constitution to make it a crime triable in court for a Congressman to take money to make a speech?'
1
I confess to some surprise that the Government almost abandoned these issues when in this Court, even though the major question in the case is the application of the Speech or Debate Clause. In the first place, this Court has not had occasion to deal with the conflict of interest statutes as applied to a Member of Congress since 1906, Burton v. United States, 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057, and they remain viable although lately revised, see Manning, Federal Conflict of Interest Law 14—73 (1964). Moreover, the Government itself has argued strenuously and successfully in many cases that an erroneous conviction on one count does not vitiate a conviction on other counts, especially where concurrent sentences are involved, see, e.g., United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210; 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; Barnard v. United States, 342 F.2d 309 (C.A.9th Cir.), certiorari denied, 382 U.S. 948, 86 S.Ct. 403, 15 L.Ed.2d 356. There are, in addition, numerous cases in which the issue was raised in this Court and the petitioner-defendant was denied certiorari.
2
The sentence given was lenient—six months on each count, but all to run concurrently. The conspiracy statute, 18 U.S.C. § 371, authorizes a five-year prison term and a $10,000 fine, and the conflict of interest statute in effect at the trial permitted a two-year sentence and a $10,000 fine for each violation, 18 U.S.C. § 281.
| 78
|
383 U.S. 268
86 S.Ct. 924
15 L.Ed.2d 743
ARIZONAv.CALIFORNIA et al.
No. 8, Orig.
Supreme Court of the United States
February 28, 1966
1
Mark Wilmer, for plaintiff.
2
Thomas C. Lynch, Atty. Gen. of California, Northcutt Ely, Special Asst. Atty. Gen., Burton J. Gindler and David B. Stanton, Deputy Attys. Gen., C. Emerson Duncan II, Jerome C. Muys, Roy H. Mann, Earl Redwine, Harry W. Horton, R. L. Knox, James H. Carter, Charles C. Cooper, Jr., John H. Lauten, H. Kenneth Hutchinson, Roger Arnebergh, Gilmore Tillman, Edward T. Butler, Harvey Dickerson, Atty. Gen. of Nevada, and Robert E. Jones, Deputy Atty. Gen., for defendants.
3
Solicitor General Marshall, for the United States.
ORDER.
4
Ordered.
5
The joint motion to amend Article VI of the Decree in this case entered on March 9, 1964, 376 U.S. 340, 84 S.Ct. 755, 11 L.Ed.2d 757, is hereby granted and Article VI of said decree is hereby amended to read as follows:
6
VI. Within three years from the date of this decree [March 9, 1964], the States of Arizona, California, and Nevada shall furnish to this Court and to the Secretary of the Interior a list of the present perfected rights, with their claimed priority dates, in waters of the mainstream within each State, respectively, in terms of consumptive use, except those relating to federal establishments. Any named party to this proceeding may present its claim of present perfected rights or its opposition to the claims of others. The Secretary of the Interior shall supply similar information, within a similar period of time, with respect to the claims of the United States to present perfected rights within each State. If the parties and the Secretary of the Interior are unable at that time to agree on the present perfected rights to the use of mainstream water in each State, and their priority dates, any party may apply to the Court for the determination of such rights by the Court.
7
THE CHIEF JUSTICE and Mr. Justice FORTAS took no part in the consideration or decision of this motion.
| 1011
|
383 U.S. 262
86 S.Ct. 765
15 L.Ed.2d 740
George HOPSON et al.v.TEXACO, INC.
No. 818.
Feb. 28, 1966.
Abraham E. Freedman, for petitioners.
Harry E. McCoy, for respondent.
PER CURIAM.
1
These actions were brought under the Jones Act, as amended (41 Stat. 1007, 46 U.S.C. § 688 (1964 ed.)), to recover damages for injuries sustained by one seaman, and for the death of another, as a result of an automobile accident on the island of Trinidad. Judgment on the jury's verdict was entered in United States District Court in favor of the plaintiffs, but the Court of Appeals reversed. 4 Cir., 351 F.2d 415. We grant the petition for a writ of certiorari and reverse.
2
The facts are not in dispute. The two seamen were members of the crew of respondent's tanker which was docked at respondent's refinery at Pointe-a -Pierre on the island of Trinidad. Both fell ill and it was determined that they would be unable to continue the voyage. In order to discharge an incapacitated seaman in a foreign port, federal law1 requires that he be taken to a United States Consul where arrangements for his return to the United States can be made. The United States Consul's Office was located in Port of Spain, some 38 miles distant. Although respondent had a fleet of motor vehicles used for transportation in the immediate vicinity of the refinery and docking area, its practice was to utilize either of two local taxi companies for journeys to more distant points. The ship's Master procured one of these cabs which set out for Port of Spain with the two ill seamen. En route, the taxi collided with a truck, killing the Master and one of the seamen; the other seaman was seriously injured. The jury found that the taxi driver had been negligent—a finding challenged neither in the Court of Appeals nor here. The Court of Appeals reversed the District Court's determination that respondent is liable to petitioners for this negligence of the taxi operator.
3
The Jones Act2 incorporates the standards of the Federal Employers' Liability Act, as amended,3 which renders an employer liable for the injuries negligently inflicted on its employees by its 'officers, agents, or employees.'4 We noted in Sinkler v. Missouri Pac. R. Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799, that the latter Act was 'an avowed departure from the rules of the common law' (id., at 329, 78 S.Ct. at 762), which, recognizing '(t)he cost of human injury, an inescapable expense of railroading,' undertook to 'adjust that expense equitably between the worker and the carrier.' Ibid. In order to give 'an accommodating scope * * * to the word 'agents" (id., at 330—331, 78 S.Ct. at 762), we concluded that 'when (an) * * * employee's injury is caused in whole or in part by the fault of others performing, under contract, operational activities of his employer, such others are 'agents' of the employer within the meaning of § 1 of FELA.' (Id., at 331—332, 78 S.Ct. at 763).
4
We think those principles apply with equal force here. These seamen were in the service of the ship and the ill-fated journey to Port of Spain was a vital part of the ship's total operations. The ship could not sail with these two men, nor could it lawfully discharge them without taking them to the United States Consul. Indeed, to have abandoned them would have breached the statutory duty to arrange for their return to the United States. Getting these two ill seamen to the United States Consul's office was, therefore, the duty of respondent. And it was respondent—not the seamen—which selected, as it had done many times before, the taxi service. Respondent—the law says—should bear the responsibility for the negligence of the driver which it chose. This is so because, as we said in Sinkler, 'justice demands that one who gives his labor to the furtherance of the enterprise should be assured that all combining their exertions with him in the common pursuit will conduct themselves in all respects with sufficient care that his safety while doing his part will not be endangered.' 356 U.S., at 330, 78 S.Ct. at 762.
5
Reversed.
6
Mr. Justice HARLAN, believing that Sinkler v. Missouri Pac. R. Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.id 799, should not be extended, dissents.
1
Rev.Stat. §§ 4578, 4580, 4581, as amended, 46 U.S.C. §§ 679, 682, 683 (1964 ed.).
2
46 U.S.C. § 688 (1964 ed.).
3
53 Stat. 1404, 45 U.S.C. § 51 et seq. (1964 ed.).
4
45 U.S.C. § 51 (1964 ed.).
| 78
|
383 U.S. 213
86 S.Ct. 781
383 U.S. 932
15 L.Ed.2d 709
CARNATION COMPANY, Petitioner,v.PACIFIC WESTBOUND CONFERENCE et al.
No. 20.
Argued Nov. 8, 1965.
Decided Feb. 28, 1966.
As Amended March 7, 1966.
[Syllabus from pages 213-214 intentionally omitted]
Arthur B. Dunne, San Francisco, Cal., for petitioner.
Daniel M. Friedman, Washington, D.C., for the United States and Federal Maritime Commission.
Edward D. Ransom, San Francisco, Cal., and Elkan Turk, Jr., for respondents.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
We granted certiorari in this case in order to determine whether the Shipping Act of 1916, 39 Stat. 728, as amended, 75 Stat. 762, 46 U.S.C. §§ 801—842 (1964 ed.), precludes the application of the antitrust laws to the shipping industry.
2
The petitioner in this case is a shipper in foreign commerce that ships substantial quantities of evaporated milk from the West Coast of the United States to the Philippine Islands. The respondent conferences are associations of shipping companies that establish rates for their respective members pursuant to agreements approved by the Federal Maritime Commission. Pacific Westbound Conference is composed of companies operating between the West Coast and the Far East; Far East Conference, of companies operating between the Atlantic and Gulf Coasts and the Far East.
3
In 1957, Pacific Westbound announced a rate increase of $2.50 per ton for the shipment of evaporated milk to the Philippine Islands. Petitioner attempted to persuade Pacific Westbound to restore the original rate, but Pacific Westbound declined to do so until 1962.
4
Petitioner filed an antitrust treble-damage action against the respondent conferences and their respective members shortly after the original rate was restored. Petitioner alleged that Pacific Westbound initiated and maintained the rate increase in order to implement certain rate-making agreements between the conferences which have never been approved by the Maritime Commission. Petitioner also alleges that it asked Pacific Westbound to restore the original rate and that Pacific Westbound refused to do so only because Far East would not agree to it. Petitioner claimed that it is entitled to recover treble damages because the implementation of such unapproved agreements is unlawful per se under the antitrust laws.
5
Respondents moved to dismiss, claiming that the Shipping Act, 1916 repealed all antitrust regulation of the rate-making activities of the shipping industry. The District Court granted the motion. The Court of Appeals for the Ninth Circuit affirmed the dismissal of the action on the ground that such an action cannot be maintained until the Commission has passed upon the agreements, 336 F.2d 650. We granted certiorari, 380 U.S. 905, 85 S.Ct. 885, 13 L.Ed.2d 793, and hold that the implementation of rate-making agreements which have not been approved by the Federal Maritime Commission is subject to the antitrust laws.
6
The Shipping Act contains an explicit provision exempting activities which are lawful under § 15 of the Act from the Sherman and Clayton Acts. This express provision covers approved agreements, which are lawful under § 15, but does not apply to the implementation of unapproved agreements, which is specifically prohibited by § 15.1 The creation of an antitrust exemption for rate-making activities which are lawful under the Shipping Act implies that unlawful rate-making activities are not exempt. This Court so interpreted an analogous provision of the Agricultural Marketing Agreement Act of 1937, 50 Stat. 246, 7 U.S.C. § 601 et seq. (1964 ed.), exempting marketing agreements approved by the Secretary of Agriculture from the antitrust laws. The Court there declared that the 'explicit provisions requiring official participation and authorizations show beyond question how far Congress intended that the Agricultural Act should operate to render the Sherman Act inapplicable. If Congress had desired to grant any further immunity, Congress doubtless would have said so.' United States v. Borden Co., 308 U.S. 188, 201, 60 S.Ct. 182, 189, 84 L.Ed. 181.
7
Respondents contend, nevertheless, that the § 15 exemption does not reflect the true intent of the Congress which enacted it. They insist that the structure of the Act and its legislative history demonstrate an unstated legislative purpose to free the shipping industry from the antitrust laws.
8
We do not believe that the remaining provisions of the Shipping Act can reasonably be construed as an implied repeal of all antitrust regulation of the shipping industry's rate-making activities. We recently said: 'Repeals of the antitrust laws by implication from a regulatory statute are strongly disfavored, and have only been found in cases of plain repugnancy between the antitrust and regulatory provisions.' United States v. Philadelphia National Bank, 374 U.S. 321, 350—351, 83 S.Ct. 1715, 1734, 10 L.Ed.2d 915. We have long recognized that the antitrust laws represent a fundamental national economic policy and have therefore concluded that we cannot lightly assume that the enactment of a special regulatory scheme for particular aspects of an industry was intended to render the more general provisions of the antitrust laws wholly inapplicable to that industry. We have, therefore, declined to construe special industry regulations as an implied repeal of the antitrust laws even when the regulatory statute did not contain an accommodation provision such as the exemption provisions of the Shipping and Agricultural Acts. See, e.g., United States v. Philadelphia National Bank, supra.
9
The historical background of the Shipping Act does not indicate that a different rule of construction should be applied in interpreting that Act. The Congress which enacted the Shipping Act was not hostile to antitrust regulation. On the contrary, the Shipping Act was the end product of an extensive investigation of the shipping industry that was conducted by the Congress which enacted the Clayton Act.2
10
Respondents claim, nonetheless, that the Committee which conducted the investigation must have been hostile to antitrust regulation of the shipping industry because it concluded that the abolition of the conference system, which the Sherman Act probably required, would not be in the public interest. But the Committee also concluded that the conference system had produced substantial evils and that it should not be permitted to continue without governmental supervision.
11
The Committee said: 'While admitting their many advantages, the Committee is not disposed to recognize steamship agreements and conferences, unless the same are brought under some form of effective government supervision. To permit such agreements without government supervision would mean giving the parties thereto unrestricted right of action. Abuses exist, and the numerous complaints received by the Committee show that they must be recognized.' H.R.Doc. No. 805, 63d Cong., 2d Sess., pp. 417 418.
12
Therefore, it seems likely that the Committee really only wanted to give the shipping industry a limited antitrust exemption. We do not believe that its purpose would be frustrated by the application of the antitrust laws to the implementation of conference agreements which have not been subjected to public scrutiny and examination by a governmental agency.3
13
But even if the Committee considered the possibility of a complete antitrust exemption at the time of the 1914 Report, the § 15 exemption clearly demonstrates that those who drafted the Shipping Act during the next Congress decided not to give the industry complete antitrust immunity. Since the problem of the application of the antitrust laws to the shipping industry was one of the focal points of the entire inquiry, the exemption provision could not have been a casual afterthought. The language of that provision must have been selected as a matter of deliberate choice in order to indicate the extent to which the industry's rate-making activities remain subject to the antitrust laws as well as the extent to which those activities are exempted from antitrust regulation.
14
This Court's decisions in United States Navigation Co. v. Cunard Steamship Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408, and Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576, do not conflict with our interpretation of the Shipping Act. Those cases merely hold that courts must refrain from imposing antitrust sanctions for activities of debatable legality under the Shipping Act in order to avoid the possibility of conflict between the courts and the Commission.
15
The plaintiffs in the Cunard and Far East cases were seeking to enjoin activities which allegedly implemented unapproved agreements even though the Commission had never determined whether those alleged activities constituted the implementation of unapproved agreements. There was a real risk that the District Court might find that the defendants had implemented unapproved agreements while the Commission might find in some later proceeding that the same activities constituted the implementation of approved agreements. This Court decided that the danger of such a conflict could best be avoided by holding that one tribunal or the other has the exclusive right to make the initial factual determination. Since the Commission has specialized knowledge of the industry, the Court concluded that such primary jurisdiction should be vested in the Commission and accordingly instructed the District Court to refrain from acting until the Commission had ascertained and interpreted the circumstances underlying the legal issues.
16
The relief requested in the Cunard and Far East cases also created another source of possible conflict. Even if the Commission found that the defendants in those cases had implemented unapproved agreements, the Commission might decide to approve the prospective implementation of those agreements. The Commission would obviously be hampered in the exercise of that power if a court had previously issued an unconditional injunction prohibiting the implementation of the agreements in question. Therefore, the Court concluded that the District Court should not be permitted to issue an unconditional injunction in the absence of a Commission determination disapproving future operations under those agreements.
17
The considerations which led to our decisions in the Far East and Cunard cases do not require that the shipping industry be totally immunized from antitrust regulation. The Far East and Cunard principles permit courts to subject activities which are clearly unlawful under the Shipping Act to antitrust sanctions so long as the courts refrain from taking action which might interfere with the Commission's exercise of its lawful powers. The Far East opinion explicitly recognized that this is the case. The Court observed that the Government could reinstate its injunction suit if and when the Commission found that the defendants' activities were not lawful under the Shipping Act and would not be approved prospectively.4
18
The award of treble damages for past and completed conduct which clearly violated the Shipping Act would certainly not interfere with any future action of the Commission. Although the Commission can approve prospective operations under agreements which have been implemented without approval, respondents concede that the Commission has no power to validate pre-approval implementation of such agreements. Therefore, the Far East and Cunard principles only preclude courts from awarding treble damages when the defendants' conduct is arguably lawful under the Shipping Act.
19
The Court of Appeals thought that respondents' activities were arguably lawful under the Shipping Act. It concluded that respondents' activities conceivably constituted the implementation of a 1952 agreement between the respondents which had been approved by the Commission. Therefore, the Court of Appeals affirmed the District Court's order dismissing the action.
20
We believe that the Court of Appeals erred in dismissing the action. The Court of Appeals apparently thought that this was the proper course because this Court dismissed the action in Far East. However, the Far East opinion indicates that the Court only chose to dismiss that action rather than to stay the proceedings pending Commission action because it found that dismissal would not prejudice the plaintiff's right to obtain antitrust relief at the appropriate time.5 That plaintiff was seeking injunctive relief from continuing conduct. Such a suit could easily be reinstituted if and when the Commission determined that the activities in question violated the Shipping Act. But a treble-damage action for past conduct cannot be easily reinstituted at a later time. Such claims are subject to the Statute of Limitations and are likely to be barred by the time the Commission acts. Therefore, we believe that the Court of Appeals should have stayed the action instead of dismissing it.
21
The Commission completed its own investigation of respondents' activities after certiorari was granted and concluded that its approval of respondents' 1952 agreement did not cover the implementation of the subsequent agreements which are the basis of petitioner's treble-damage complaint.6 An appeal from the Commission's decision is now pending.
22
Petitioner's treble-damage action is based upon the theory that those same subsequent rate-making agreements are unlawful per se under the antitrust laws.
23
Petitioner participated in the proceedings before the Commission, but petitioner did not ask for reparations under the Shipping Act and, therefore, could not be accorded any. Petitioner's failure to seek Shipping Act reparations does not affect its rights under the antitrust laws. The rights which petitioner claims under the antitrust laws are entirely collateral to those which petitioner might have sought under the Shipping Act. This does not suggest that petitioner might have sought recovery under both, but petitioner did have its choice.
24
Therefore, we reverse the order dismissing this action and remand the case to the United States District Court for the Northern District of California with instructions to stay the action pending the final outcome of the Shipping Act proceedings and then to proceed in a manner consistent with this opinion.
25
Ordered reversed and case remanded.
1
Section 15, as set forth in 46 U.S.C. § 814, provides in part:
'Any agreement and any modification or cancellation of any agreement not approved, or disapproved, by the Commission shall be unlawful, and agreements, modifications, and cancellations shall be lawful only when and as long as approved by the Commission; before approval or after disapproval it shall be unlawful to carry out in whole or in part, directly or indirectly, any such agreement, modification, or cancellation; except that tariff rates, fares, and charges, and classifications, rules, and regulations explanatory thereof (including changes in special rates and charges covered by section 813a of this title which do not involve a change in the spread between such rates and charges and the rates and charges applicable to noncontract shippers) agreed upon by approved conferences, and changes and amendments thereto, if otherwise in accordance with law, shall be permitted to take effect without prior approval upon compliance with the publication and filing requirements of section 817(b) of this title and with the provisions of any regulations the Commission may adopt.
'Every agreement, modification, or cancellation lawful under this section, or permitted under section 813a of this title, shall be excepted from the provisions of sections 1—11 and 15 of Title 15, and amendments and Acts supplementary thereto.
'Whoever violates any provision of this section or of section 813a of this title shall be liable to a penalty of not more than $1,000 for each day such violation continues, to be recovered by the United States in a civil action. * * *'
2
The Shipping Act, 1916 was passed following an exhaustive investigation into shipping combinations undertaken by the House Committee on Merchant Marine and Fisheries under the chairmanship of Congressman Alexander. That Committee issued its Report on Steamship Agreements and Affiliations in the American Foreign and Domestic Trade, H.R.Doc. No. 805, 63d Cong., 2d Sess. ('Alexander Report') in 1914.
3
Respondents contend that treble-damage actions will frustrate one of the Committee's purposes. The Committee found, however, that the conferences had discriminated among shippers and concluded that such discrimination should be eliminated. Respondents assert that treble-damage awards for shippers are equivalent to rebates and that shippers will receive unequal 'rebates' because different courts and juries will inevitably apply different measures of damages. Therefore, they conclude that treble-damage actions will frustrate the Shipping Act policy of equality of treatment for shippers.
We believe that Congress was concerned with assuring equality of treatment by the conferences, not with equality of treatment by juries in collateral proceedings. There is no reason to believe that Congress would want to deprive all shippers of their right to treble damages merely to assure that some shippers do not obtain more generous awards than others.
4
The Court said:
'Having concluded that initial submission to the Federal Maritime Board is required, we may either order the case retained on the District Court docket pending the Board's action * * * or order dismissal of the proceeding brought in the District Court. * * * We believe that no purpose will here be served to hold the present action in abeyance in the District Court while the proceeding before the Board and subsequent judicial review or enforcement of its order are being pursued. A similar suit is easily initiated later, if appropriate.' 342 U.S. 570, 576—577, 72 S.Ct. 492, 495.
If the Far East decision had held that the activities in question could never be subjected to the antitrust laws under any circumstances, there would obviously have been no reason to consider whether the proceedings should be stayed or dismissed. Thus, the Far East opinion effectively determined that the implementation of unapproved rate-making agreements is subject to antitrust regulation.
5
See note 4, supra.
6
The Federal Maritime Commission commenced an investigation in 1959 to determine whether the 1952 agreement between respondents constituted the full agreement between the parties. This investigation culminated in the issuance of the Commission's Report on Joint Agreement Between Member Lines of the Far East Conference and the Member Lines of the Pacific Westbound Conference, Federal Maritime Commission Docket No. 872, July 28, 1965, rehearing denied, November 1, 1965.
The Commission found that the respondents had entered into and implemented a number of joint rate-making agreements after the Commission approved the 1952 agreement for consultation and that none of the subsequent agreements had been filed for approval. The Commission concluded that its approval of the 1952 agreement did not cover any of the subsequent agreements and, therefore, that respondents had violated the Shipping Act by implementing those subsequent agreements.
| 78
|
383 U.S. 265
86 S.Ct. 925
15 L.Ed.2d 737
George LEVINEv.UNITED STATES.
No. 112.
Robert B. ROBERTS
v.
UNITED STATES.
No. 125.
Robert GRENE
v.
UNITED STATES.
No. 230.
Norman GRADSKY
v.
UNITED STATES.
No. 234.
Supreme Court of the United States
February 28, 1966
Nicholas J. Capuano, for petitioner Levine.
Thomas F. Call, for petitioner Roberts.
Joseph W. Wyatt, for petitioner Grene.
Sidney M. Dubbin and E. David Rosen, for petitioner Gradsky.
Solicitor General Marshall, former Solicitor General Cox, Assistant Attorney General Vinson, Beatrice Rosenberg and Daniel H. Benson, for the United States.
On Petitions for Writs of Certiorari to the United States Court of Appeals for the Fifth Circuit.
PER CURIAM.
1
Ten persons were found guilty by a jury on each count of a 10-count indictment. The count predicated on 18 U.S.C. § 371 (1964 ed.) charged all defendants with conspiring to violate § 17 of the Securities Act of 1933, 15 U.S.C. § 77q(a) (1964 ed.), and the Mail Fraud Act, 18 U.S.C. § 1341 (1964 ed.); each of the remaining nine counts charged all defendants with substantive offenses of violating these latter statutes. The Court of Appeals affirmed all the conspiracy convictions; and, with some exception for petitioner Roberts and two other defendants, that court also affirmed the convictions for the substantive offenses. 342 F.2d 147. Four defendants petitioned for writs of certiorari, and a fifth defendant subsequently moved to be added as a co-petitioner in one of the petitions already filed (No. 234). We grant that motion; and we grant the petitions for writs of certiorari limited to the issue whether petitioners were improperly convicted of substantive offenses committed by members of the conspiracy before petitioners had joined the conspiracy or after they had withdrawn from it. In all other respects the petitions are denied.
2
In response to specific questions addressed by this Court, the Solicitor General has made a two-pronged concession: First, he concedes that an individual cannot be held criminally liable for substantive offenses committed by members of the conspiracy before that individual had joined or after he had withdrawn from the conspiracy; and second, he concedes that in this case some of the convictions for the substantive offenses must be reversed because they are inconsistent with this principle.1 On the basis of this concession, and upon consideration of the entire record, we vacate the judgment of the Court of Appeals insofar as it affirms petitioners' convictions for the substantive offenses. We remand the case to that court with instructions to reverse the convictions the Solicitor General concedes must be reversed, and to determine, in light of the concession, the evidence, the instructions to the jury, and the applicable principles of law, whether in addition to the relief conceded by the Solicitor General petitioners are entitled to further relief regarding the convictions for the substantive offenses.
3
Vacated and remanded.
1
Specifically, the Solicitor General concedes that petitioner Levine's convictions on Counts 1, 3, 4, 5, 6, 7, and 8, and petitioner Grene's convictions on Counts 1 and 7 must be reversed.
| 01
|
383 U.S. 234
86 S.Ct. 788
15 L.Ed.2d 724
James T. STEVENS, Petitioner,v.Charles MARKS, Justice of the Supreme Court of New York, County of New York. James T. STEVENS, Petitioner, v. John J. McCLOSKEY, Sheriff of New York City.
Nos. 210 and 290.
Argued Jan. 24, 1966.
Decided Feb. 28, 1966.
[Syllabus from pages 234-235 intentionally omitted]
John P. Schofield, New City, N.Y., and Eugene Gressman, Washington, D.C., for the petitioner.
H. Richard Uviller, New York City, for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner, a member of the New York City Police Department, was summarily discharged on July 15, 1964. On June 26 he had been subpoenaed before a New York County grand jury, known as the First June 1964 Grand Jury. Before appearing in the grand jury room, an Assistant District Attorney advised him to sign a waiver of immunity, saying that otherwise he would be subject to removal from public office.1 He signed the waiver.2 Thereupon he was an unsworn witness before the grand jury:
2
'Q. Lieutenant * * * Stevens, as was pointed out to you earlier, this grand jury is inquiring into the crimes of conspiracy to commit the crime of bribery of a public officer and the crime of bribery of a public officer; do you understand that?
3
'A. I do.
4
'Q. Do you understand further that you have been called here as a potential defendant, not as a witness; do you understand that?
5
'A. I do.
6
'Q. Do you understand that under the Constitution of the United States you have the right to refuse to answer any questions that might tend to incriminate you; do you understand that?
7
'A. I do.
8
'Q. Do you understand further that under the New York State Constitution, and New York City Charter, a public officer is required, if he desires to continue to hold his public position, to sign a limited waiver of immunity; do you understand that?
9
'A. I do.
10
'Q. Do you understand that that means that if you sign a limited waiver of immunity which requires you to answer questions concerning the conduct of your public office, that what you say will be taken down and recorded, and that should this grand jury vote a true bill against you, that is an indictment—to indict you for a crime, the testimony you give can and will be used against you. Do you understand that?
11
'A. I do.
12
'Q. Are you prepared to sign a waiver of immunity?
13
'A. I am.'
14
That petitioner's waiver of 'all benefits, provileges, rights and immunity which I would otherwise obtain from indictment, prosecution and punishment' covered both the privilege against self-incrimination and immunity from prosecution3 is evidenced by the foregoing colloquy.
15
Then petitioner was sworn, asked a few questions, given a questionnaire to fill out, and asked to return with it completed.
16
At these stages petitioner had no counsel. On July 15, he returned to a different grand jury—the Third July 1964 Grand Jury. Now he had counsel and refused to sign a waiver of immunity. He was examined, as before, concerning his knowledge that to save his job he had to waive his immunity. He acknowledged that he knew the consequences of his refusal to waive his immunity and was excused.
17
That same day, as a consequence of his refusal to waive immunity before the Third July 1964 Grand Jury, petitioner was discharged as a police officer.
18
On July 22 he was again summoned before the First June 1964 Grand Jury and put a certain question which he refused to answer on the basis of his state and federal4 constitutional rights. He was brought before a judge who directed him to answer the questions. He refused to answer 'on the grounds stated in the State and Federal Constitution' and the judge found him in contempt. On July 28, a hearing was held at which petitioner, through his counsel, contended that the waiver was invalid or, alternatively, had been effectively withdrawn. In either event his Fifth Amendment claim was valid under Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. For it was agreed that 'there is no claim that this witness has been given immunity.'5 At the conclusion of the hearing, petitioner was fined $250 and given 30 days in the civil jail in New York City for that contempt. Petitioner promptly appealed to the Appellate Division of the New York Supreme Court. While this appeal was pending, he sought and was denied federal habeas corpus. Application of Stevens, D.C., 234 F.Supp. 25. The Appellate Division dismissed the appeal, stating its belief that Regan v. People of State of New York, 349 U.S. 58, 75 S.Ct. 585, 99 L.Ed. 883, was controlling.6 22 A.D.2d 683, 253 N.Y.S.2d 401. The New York Court of Appeals denied leave to appeal. 15 N.Y.2d 483, 257 N.Y.S.2d 1025, 205 N.E.2d 315. This is the conviction which is the basis of the petition in No. 210.
19
Thereafter, on September 28, petitioner was summoned again before the First June 1964 Grand Jury. Once again a question was put him and once more he refused to answer, claiming his privilege which, as we have said, was available to him under Malloy v. Hogan, supra, if the waiver was invalid or had been effectively withdrawn. He was brought before another judge who directed him to answer the question. On refusal, petitioner was held in contempt and fined $250 and sentenced to 30 days in jail.7 On January 11, 1965, petitioner was once more summoned before the First June 1964 Grand Jury and refused again to answer a question on the ground that it was incriminating. He was taken before a judge and directed to answer. On his refusal he was fined $250 and sentenced to 30 days. While serving that jail term, petitioner once again sought a writ of habeas corpus in the United States District Court. The court denied relief, indicating that it regarded Regan v. People of State of New York, supra, binding authority. United States ex rel. Stevens v. McCloskey, D.C., 239 F.Supp. 419. The Court of Appeals for the Second Circuit affirmed. 345 F.2d 305. It is this last conviction that is the basis of petitioner's application for a writ of habeas corpus in No. 290.
20
Both cases are here on writs of certiorari. 382 U.S. 809, 86 S.Ct. 53, 15 L.Ed.2d 59.
21
Not once in any of the hearings was petitioner told that if he responded with incriminating answers, the state immunity statute might preclude a prosecution based on such answers. On the contrary, the Assistant District Attorney made it clear that the view of the prosecution was that petitioner had waived any rights he might have had under the immunity statute:
22
'Q. And was it further told to you that it meant that if you signed a limited waiver of immunity which required you to answer questions concerning your conduct in public office, that what you said would be taken down and recorded and that should this grand jury vote a true bill against you, that is an indictment, the testimony you gave could be and will be used against you? Was that explained to you?
23
'A. I believe it was, yes, sir.
24
'Q. And did you tell this grand jury you understood that?
25
'A. That's right.'
26
The Assistant District Attorney went on to say:
27
'Q. And do you understand further that regardless of what your lawyer may say or what anyone else may say, that it is the contention of the People that this is a valid waiver of immunity and that you do not have immunity? Do you understand that?
28
'A. Yes, sir.'
29
As we read this record, petitioner was led to believe that he could invoke his federal privilege against self-incrimination only on pain of losing his public employment; that to retain his job he was obliged to sign a waiver; and that should he sign a waiver he would have no immunity in answering incriminating questions. Throughout the various appearances petitioner made before the grand juries and in the New York courts which held him in contempt, the prosecution consistently maintained that petitioner's waiver was valid. And there was never any suggestion that if, as petitioner contended, the waiver were invalid or effectively withdrawn, he might obtain a valid immunity from subsequent prosecution.
30
Here lies the difference between this case and Regan v. People of State of New York. For after that case arose, New York amended its immunity statute. Instead of conferring automatic immunity on all witnesses who testify before the grand jury, immunity is now conferred 'only by strict compliance with the procedural requirements of our immunity statutes properly enacted * * *.' People v. Laino, 10 N.Y.2d 161, 173, 218 N.Y.S.2d 647, 657, 176 N.E.2d 571, 579. Section 381 of the Penal Law, as amended in 1953, McKinney's Consol.Laws c. 40,8 provides that in any bribery investigation 'the court, magistrate or grand jury, or the committee may confer immunity in accordance with the provisions' of § 2447. The latter section provides that an investigating grand jury is among those 'authorized to confer immunity' in a proceeding relating to bribery, provided that certain procedural steps are taken: (a) the witness must refuse to answer on the ground of self-incrimination; (b) the grand jury must then be 'expressly requested by the prosecuting attorney to order such person to * * * answer'; (c) the grand jury must then order the person to answer; (d) the witness must then comply with the order to answer; and (e) thereupon 'immunity shall be conferred.' Under these laws, immunity is not automatically conferred 'merely by testifying.' People v. Laino, supra, at 172, 218 N.Y.S.2d, at 656, 176 N.E.2d, at 578. 'Complete immunity from prosecution may be obtained by a prospective defendant, or any witness, only by strict compliance with the procedural requirements of our immunity statutes properly enacted * * * or by virtue of immunity provisions in our State Constitution * * *.' Id., at 173, 218 N.Y.S.2d, at 657, 176 N.E.2d, at 579.
31
In the present case neither the prosecutor nor the grand jury had any thought of conferring immunity on petitioner. They tried to hold petitioner to his waiver. Yet if he had gone ahead and testified and it were established in a later prosecution that his waiver was invalid, it seems that he would have been bereft of any immunity under the New York law, since the requirements of 'strict compliance' had not been met.9 Accordingly, only if the petitioner's waiver was valid and binding was he bound to testify at least until the affirmative steps necessary to confer immunity were taken. Whether or not petitioner could validly assert the privilege against self-incrimination depends on whether the waiver was, as he contends, invalid or effectively withdrawn. Although the trial judge which first found him in contempt ruled that the waiver was valid, the Appellate Division considered that question irrelevant in light of Regan v. People of State of New York.
32
Since, as we have seen, Regan is inapposite, we conclude that at the time petitioner was held to be in contempt, he had—as a matter of federal constitutional law—effectively withdrawn the waiver. When petitioner was asked to waive his federally secured right to refuse to answer the questions, he was informed that failure to execute the waiver would result in the loss of his public employment. Although it put petitioner to 'a choice between the rock and the whirlpool' (Frost Trucking Co. v. Railroad Comm'n of State of California, 271 U.S. 583, 593, 46 S.Ct. 605, 607, 70 L.Ed. 1101), New York says that, having 'voluntarily' waived his constitutional rights, petitioner may not thereafter claim his privilege. At petitioner's first appearance before a grand jury after having consulted with counsel, petitioner attempted to do just that: he announced his intention to withdraw his waiver.
33
Even were we to assume, without deciding, that a State may constitutionally exact, on pain of loss of employment and in the absence of counsel, the waiver of a constitutional right, we would be unable to find any justification for denying the right to withdraw it.10 We hold that petitioner's effort to withdraw the waiver was effective, and that in the absence of an immunity provision clearly made applicable to him, petitioner could properly stand on his privilege and refuse to answer potentially incriminating questions.
34
One final point remains. Although the courts below did not consider the possibility, the briefs suggest that petitioner might, quite apart from the statutory immunity conferred by § 2447, have been given immunity by operation of law. It is said that, as the New York courts have interpreted the state constitution, a potential defendant may not be compelled to appear before a grand jury; any testimony given by him during such an appearance may not thereafter be used against him. People v. Steuding, 6 N.Y.2d 214, 189 N.Y.S.2d 166, 160 N.E.2d 468; People v. Laino, 10 N.Y.2d 161, 218 N.Y.S.2d 647, 176 N.E.2d 571. Thus it might be thought that this 'automatic' immunity resulting from petitioner's appearance before the grand jury makes this case precisely identical with Regan. We cannot agree. We need not stop to determine whether the immunity said to be conferred here—which merely prevents the use of the defendant's testimony or its fruits in any subsequent prosecution but, apparently, does not preclude prosecution based on 'independent' evidence (People v. Laino, supra; People v. Ryan, 11 A.D.2d 155, 204 N.Y.S.2d 1)—constitutes that 'absolute immunity against further prosecution' about which the Court spoke in Counselman v. Hitchcock, 142 U.S. 547, 586, 12 S.Ct. 195, 35 L.Ed. 1110, and which the Court said was necessary if the privilege were to be constitutionally supplanted. And see Albertson v. Subversive Activities Control Board, 382 U.S. 70, 79 81, 86 S.Ct. 194, 199—200, 15 L.Ed.2d 165. For even if the Steuding-Laino immunity were available to petitioner, he was led to believe—as we have already seen—that no immunity provisions were applicable to his case.
35
In this sense the case is very close to Raley v. State of Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344, where the existence of immunity was never suggested to the witnesses, later held in contempt. In that case the State Supreme Court held that the immunity under the statute was automatically available to the witnesses and advice of the investigating agency was not necessary. But we reversed those judgments of conviction since what the State was doing was 'convicting a citizen for exercising a privilege which the State clearly had told him was available to him' (id., at 438, 79 S.Ct. at 1266), and we went on to say:
36
'A State may not issue commands to its citizens, under criminal sanctions, in language so vague and undefined as to afford no fair warning of what conduct might transgress them. Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888. Inexplicably contradictory commands in statutes ordaining criminal penalties have, in the same fashion, judicially been denied the force of criminal sanctions. United States v. Cardiff, 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200. Here there were more than commands simply vague or even contradictory. There was active misleading. Cf. Johnson v. United States, 318 U.S. 189, 197, 63 S.Ct. 549, 553, 87 L.Ed. 704. The State Supreme Court dismissed the statements of the Commission as legally erroneous, but the fact remains that at the inquiry they were the voice of the State most presently speaking to the appellants. We cannot hold that the Due Process Clause permits convictions to be obtained under such circumstances.' Id., at 438—439, 79 S.Ct. at 1266—1267.
37
Raley demonstrates that the State may not substitute for the privilege against self-incrimination an intricate scheme for conferring immunity and thereafter hold in contempt those who fail fully to perceive its subtleties. A witness has, we think, a constitutional right to stand on the privilege against self-incrimination until it has been fairly demonstrated to him that an immunity, as broad in scope as the privilege it replaces, is available and applicable to him.11 This, it seems to us, is the teaching of Raley, and accordingly the Steuding-Laino immunity—if otherwise applicable—cannot now be invoked to validate these contempt convictions.
38
Reversed.
39
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, concurring in part and dissenting in part.
40
Proper disposition of these cases is rendered more difficult because of seeming confusion that has attended them all along the line. In the courts below the significance of an important New York statutory amendment was apparently overlooked. This Court granted certiorari limited to a question which, in my view, the record does not present and which the Court does not answer.1 The judgments below are now reversed on different grounds never properly set forth by petitioner. With this background, a good case could be made for dismissing the writs as improvidently granted. However, I believe briefing and argument have brought to the fore errors sufficiently plain to warrant setting aside these judgments, although my analysis differs from the Court's and I consider that a remand, and not an outright reversal, is called for.
41
It is common ground that petitioner cannot be jailed for refusing to incriminate himself unless either he waived his federal privilege against self-incrimination, or immunity adequate to offset that privilege was conferred upon him. Taking up the first possibility—waiver of the privilege against self-incrimination—it seems to me evident that petitioner was never asked to sign, nor did he sign, a waiver of that privilege. What the New York Constitution and the New York City Charter explicitly require be signed, and what petitioner did in terms sign, is a waiver of immunity from criminal prosecution, that is, a waiver not of the federal privilege but of the state immunity that may be granted to circumvent the privilege.2 That a waiver of the privilege and a waiver of immunity may both often lead a witness to incriminate himself is no reason to blur these two different legal concepts. A State in exacting a waiver of the privilege should turn square corners; New York did not ask for nor did it obtain a waiver of the privilege in this instance, so that basis for justifying the contempt convictions is out of the case. The only other basis is a claim that New York has conferred immunity upon petitioner adequate to replace the privilege.
42
Before turning to that issue, it should be noted that there can be no reason to consider now whether petitioner's purported waiver of immunity was ineffective or withdrawn. If the Court is right in saying that no statutory immunity was ever conferred and that immunity under the state constitution cannot now be relied on by New York because of Raley v. State of Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344, then it is hardly necessary to decide if this never-conferred immunity was adequately waived or the waiver effectively withdrawn. If New York did properly confer adequate immunity and so offset the privilege, then under Regan v. People of State of New York, 349 U.S. 58, 75 S.Ct. 585, 99 L.Ed. 883, it is irrelevant at this stage whether petitioner has or has not lost the benefits of that immunity through waiver since he is obliged to testify in either event. Adequacy or withdrawal of a waiver of the privilege against self-incrimination might sometimes be relevant at this stage, but no waiver of the privilege was even attempted in this instance as I have noted above. On this phase of the case, it only remains for me to demur to the Court's statement that 'we would be unable to find any justification for denying the right to withdraw' the waiver (pp. 243-244, ante). New York has the very deepest interest in uprooting and punishing misconduct by its officials; it also has a narrower interest in having an investigation, commenced on the premise of a waiver, not suddenly balked by the witness' change of heart. It seems to me there is no federal constitutional reason why a witness who has properly given a voluntary waiver either of his privilege or his immunity should not be held to it.
43
Turning now to the conferral of immunity as a means of offsetting the privilege and justifying these convictions, I agree with the Court that the pertinent New York statute quite plainly is no longer an automatic immunity statute and that it was not brought into play in this instance. While further consideration on this score should not be foreclosed on the remand which for reasons later indicated I believe should take place here, People v. Laino, 10 N.Y.2d 161, 218 N.Y.S.2d 647, 176 N.E.2d 571, seems fairly persuasive that this literal construction of the statute is accurate.3 Disregarding the statute then, the convictions can stand only if immunity adequate to offset the privilege flowed from the state constitution and if petitioner was not misled in his reliance on the privilege. For reasons now set forth, I believe these questions should be decided only after a remand to the state courts.
44
As construed in Laino, the New York Constitution gives automatic immunity only against use of compelled testimony and its fruits, 10 N.Y.2d, at 173, 218 N.Y.S.2d, at 657, 176 N.E.2d, at 579 and the Court today leaves undecided the question whether this immunity is sufficient to supplant the privilege. While the reference to 'absolute immunity against further prosecution' in Counselman v. Hitchcock, 142 U.S. 547, 586, 12 S.Ct. 195, 206, 35 L.Ed. 1110, may point toward a negative answer, I agree that the question ought not be decided until it is necessarily presented after a full briefing and argument by the parties. It is perhaps reason enough for postponement that the negative answer would perforce invalidate one or more federal statutes which protect only against later use of compelled testimony.4 In addition, this Court has recently extended the Fifth Amendment to the States, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, and abolished the 'two sovereignties' rule, Murphy v. Water-front Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678, so that an expansive reading of the privilege could have a far more serious impact than was true in the days of Counselman.5 In any event, the question need not be reached if Raley v. State of Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344, governs the instant case.
45
As I read Raley, it holds that the State may not lead witnesses into believing that no immunity provisions are applicable and then, when the witnesses stand on their privilege, hold them in contempt on the ground that immunity provisions supplanted the privilege. In this case the Court apparently believes that statements of the prosecutor and trial court led petitioner to think that no immunity provisions applied to him even contingently; if this is so, then I would agree the State cannot now rely on the state constitution, or the state statute for that matter, to negative petitioner's privilege. However, there are no findings on how petitioner understood the statements made to him and they are certainly susceptible of quite a different interpretation. It may well be that the State meant, and was understood by the petitioner, to convey only that it believed petitioner's waiver of immunity to be valid and irrevocable so that it would attempt to prosecute him on the basis of any testimony he gave. On this reading, it is quite possible that both the State and petitioner believed that adequate immunity provisions were generally applicable to the extent of supplanting the privilege and that petitioner would be shielded at a later trial if the State there proved to be wrong in its views on waiver.6 If so, and assuming the state constitution does in law provide adequate immunity, then petitioner was obliged to testify under Regan and was not relevantly misled.7 The present record was not formulated with regard to the Raley problem, that issue was not briefed in its present form, and it seems to me wrong to decide the point without a remand.
46
I would vacate both judgments and remand the case to the state courts8 so the State may there try to establish that apart from a possible waiver adequate immunity was conferred, and so that petitioner may try to show that he was misled on this score.
1
Article I, § 6, of the New York Constitution provides in part: 'No person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled in any criminal case to be a witness against himself, providing, that any public officer who, upon being called before a grand jury to testify concerning the conduct of his present office or of any public office held by him within five years prior to such grand jury call to testify, or the performance of his official duties in any such present or prior offices, refuses to sign a waiver of immunity against subsequent criminal prosecution, or to answer any relevant question concerning such matters before such grand jury, shall be virtue of such refusal, be disqualified from holding any other public office or public employment for a period of five years from the date of such refusal to sign a waiver of immunity against subsequent prosecution, or to answer any relevant question concerning such matters before such grand jury, and shall be removed from his present office by the appropriate authority or shall forfeit his present office at the suit of the attorney-general.'
2
The waiver read in part:
'* * * all benefits, privileges, rights and immunity which I would otherwise obtain from indictment, prosecution and punishment for or on account of, regarding or relating to any matter, transaction or thing, concerning the conduct of my office or the performance of my official duties, or the property, government or affairs of the State of New York or of any county included within its territorial limits, or the * * * official conduct of any officer of the city or of any such county, concerning any of which matters, transactions or things I may testify or produce evidence, documentary or otherwise, before the 1st, 1964 Grand Jury in the County of New York, in the investigation being conducted by said Grand Jury.'
3
This was the view of the Appellate Division which, when affirming petitioner's first contempt conviction, said: '(I)f the waiver of immunity is still valid, petitioner no longer has any privilege to refuse to testify.' 22 A.D.2d 683, 684, 253 N.Y.S.2d 401, 402.
4
Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, holding that the Fourteenth Amendment guaranteed a witness the protection of the Fifth Amendment's privilege against self-incrimination, was decided June 15, 1964.
5
Petitioner's counsel made the following statement: 'May we also have the record clarified, Your Honor. It is my understanding, based on what was said here the last time in court before Your Honor, that there is no claim that this witness has been given immunity. The claim is that he has signed a valid waiver and that he refused to testify under it, and that is why Your Honor has found him guilty of criminal contempt, is that right?' The court replied, 'That covers the situation.'
6
Regan v. People of State of New York arose under an earlier version of the New York immunity law, which conferred automatic immunity from prosecution on anyone who testified before the grand jury. Regan had, like petitioner, executed a waiver of immunity and later sought to repudiate it. Unclear of his rights, Regan refused to testify though ordered to do so. This Court affirmed his contempt conviction, refusing to consider questions raised as to the validity of his waiver and the efficacy of his efforts to withdraw it. The Court's theory was that regardless of the validity of the waiver, Regan was bound to answer the questions put to him: If the waiver was valid and binding, then of course he must answer since he had waived the right to refuse to do so. If the waiver was invalid, then petitioner would have immunity from prosecution, and thus could not rely on the privilege against self-incrimination.
7
This sentence was served.
8
See Regan v. People of State of New York, 349 U.S. 58, 59, 75 S.Ct. 585, 586, 99 L.Ed. 883, note 2, and accompanying text, for a discussion of the earlier version of that section.
9
That immunity was never properly conferred on petitioner was, as we read this record, recognized by petitioner's counsel and by the judge which first found him in contempt of court. See note 5, supra, and accompanying text.
10
As for the suggestion that withdrawal of the waiver in mid-hearing poses an administrative inconvenience, we only note that there was no such inconvenience here. Petitioner had answered only a few perfunctory questions at his first appearance before the grand jury. He asserted his desire to withdraw the waiver immediately upon returning before the grand jury.
11
The suggestion that we should remand the case to the New York courts for a finding of whether or not petitioner was misled is, we think, wide of the mark. A State must affirmatively demonstrate to the witness that a valid immunity from prosecution is his before it may hold him in contempt for refusing to answer questions that would otherwise be incriminating. Whether the State has met its burden must be measured at the time of the alleged contempt. A declaration that there was a valid immunity uttered for the first time on appeal would come too late.
1
Certiorari was limited to the question whether a law is unconstitutional which requires the discharge and bars the rehiring of any public officer who refuses to sign a waiver of immunity and claims his privilege against self-incrimination. 382 U.S. 809, 86 S.Ct. 53, 15 L.Ed. 59.
2
N.Y.Const., Art. I, § 6, requires 'a waiver of immunity against subsequent criminal prosecution' and the New York City Charter, § 1123, requires that one 'waive immunity from prosecution.' The document signed by petitioner stated that he waived 'all benefits, privileges, rights and immunity which I would otherwise obtain from indictment, prosecution and punishment * * *.' N.Y. Penal Law § 2446 states that where any law provides that a person shall not be prosecuted because of his testimony or that testimony he gives shall not be used against him, that person may file a statement 'expressly waiving such immunity or privilege.'
3
In Laino the New York Court of Appeals stated that immunity under the state statutes could be acquired only 'by strict compliance with the procedural requirements * * *.' 10 N.Y.2d, at 173, 218 N.Y.S.2d, at 657, 176 N.E.2d, at 579. N.Y. Penal Law § 2447, governing the procedure for conferring statutory immunity, provides that in the case of a grand jury, the grand jury must be 'expressly requested' by the prosecutor to order the witness to answer and the grand jury must give that order; there appears to have been neither request nor order in this case. That courts might 'estop' the prosecutor from later prosecuting in these circumstances should not be taken as the deliberate, assured grant of immunity the Constitution requires.
4
See, e.g., 49 U.S.C. § 9 (1964 ed.) See generally Murphy v. Waterfront Comm'n, 378 U.S. 52, 104, 84 S.Ct. 1594, 1616, n. 6 (concurring opinion of Mr. Justice White).
5
A number of States appear to provide immunity no greater than that implied by the New York Constitution. See, e.g., Ariz.Rev.Stat.Ann. § 13—384; Conn.Gen.Stat. § 12—2.
6
It should be noted that nothing in the record indicates that petitioner raised the Raley argument in the lower courts, and that case was not even cited in his petitions for certiorari.
7
In a footnote, the Court appears to announce as a new and distinct principle that '(a) State must affirmatively demonstrate to the witness that a valid immunity from prosecution is his' before overriding the privilege (p. 246, n. 11, ante). Reading the words 'valid immunity' literally, the statement is simply inconsistent with Regan. If instead the Court means that immunity albeit contingent on the invalidity of a waiver—must be 'affirmatively demonstrated,' regardless of whether the State misled the witness and regardless of whether the witness well knew he had contingent immunity, then I disagree with that proposition which is not supported by Raley.
8
The case to be so remanded is No. 210; No. 290, which originated in the Federal District Court as a habeas corpus suit should be returned there to await the outcome of any further state proceedings.
| 01
|
383 U.S. 225
86 S.Ct. 768
15 L.Ed.2d 717
Pasquale J. ACCARDI et al., Petitioners,v.The PENNSYLVANIA RAILROAD COMPANY.
No. 280.
Argued Jan. 20, 1966.
Decided Feb. 28, 1966.
Richard A. Posner, Asst. to Sol. Gen., Dept. of Justice, Washington, D.C., for petitioners, pro hac vice, by special leave of Court.
Edward F. Butler, New York City, for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
Petitioners, who are World War II veterans and former employees of the Pennsylvania Railroad, brought this action claiming that their former employer denied them certain seniority rights guaranteed by § 8 of the Selective Training and Service Act of 1940.1 Section 8(b)(B) of that Act provides that upon application by any former employee who has satisfactorily completed his military service, a private employer 'shall restore' such honorably discharged serviceman to his former 'position or to a position of like seniority, status, and pay unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so.' Section 8(c) reemphasizes § 8(b)(B) by providing that any person so restored 'shall be so restored without loss of seniority.'
2
The facts in this case are undisputed. In 1941 and 1942 the six petitioners began working as firemen on tugboats owned by the Pennsylvania Railroad and operated in the Port of New York. Petitioners left their jobs in 1942 and 1943 to enter the armed services and after serving three years or more each received an honorable discharge. Shortly after discharge each was restored by the railroad to his former position as fireman with the same amount of seniority he had before leaving plus credit for the time spent in the armed forces, as required by the 1940 Act. All six continued to work for the railroad until 1960. In 1959 a labor dispute broke out when the Pennsylvania and nine other railroad carriers operating tugboats claimed that firemen were not necessary on the new diesel tugs, and the owners of the tugs sought to abolish the craft and class of fireman. The unions affected called a strike. This strike was settled in 1960 when petitioners' union and the railroads entered an agreement which abolished the position of fireman on all diesel tugs. As their part of the bargain the railroads agreed to retain in their employ firemen with 20 years or more seniority who desired to remain, but all firemen with less than 20 years seniority were discharged. To make this settlement more acceptable to the employees, those who were discharged or who did not desire to stay with the railroads were paid a severance or separation allowance based on a formula set out in the agreement. Each of the petitioners involved in this case left his job with the Pennsylvania Railroad and received a separation allowance, but each received less than he thought was due. This lawsuit was begun as an attempt to recover what each believed was owed him by the railroad.
3
The amount of the separation allowances was determined, according to the language of the agreement, by the length of 'compensated service' with the railroad. A month of 'compensated service' was defined as any month in which the employee worked one or more days and 'a year of compensated service is 12 such months or major portion thereof.' In computing petitioners' separation allowances the railroad did not include the years spent in the armed forces as years of 'compensated service.' Petitioners claim this was error and contrary to § 8 of the Selective Training and Service Act of 1940. Each petitioner received $1,242.60 less than he would have if given credit for the three or more years he spent in military service and the parties have stipulated that if petitioners are entitled to have the time in the service included in determining severance pay, judgment for this amount should be rendered for each of them. The District Court rendered judgment for petitioners. The Court of Appeals reversed, holding, contrary to the District Court, that the petitioners were not entitled to credit for their time in the service in computing the allowances because the allowances did not come within the concepts of 'seniority, status, and pay.' 2 Cir., 341 F.2d 72.
4
The language of the 1940 Act clearly manifests a purpose and desire on the part of Congress to provide as nearly as possible that persons called to serve their country in the armed forces should, upon returning to work in civilian life, resume their old employment without any loss because of their service to their country. Section 8(b)(B) of the statute requires that private employers reinstate their former employees who are honorably discharged veterans 'to (their former) position or to a position of like seniority, status, and pay,' and § 8(c) provides that such a person 'shall be so restored without loss of seniority.' This means that for the purpose of determining seniority the returning veteran is to be treated as though he has been continuously employed during the period spent in the armed forces. Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284—285, 66 S.Ct. 1105, 1110—1111, 90 L.Ed. 1230. The continuing purpose of Congress in this matter was again shown in the Universal Military Training and Service Act, 62 Stat. 604, as amended, 50 U.S.C. App. § 451 et seq. (1964 ed.). Section 9(c)(2) of that Act provides:
5
'It is hereby declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) (of this section) should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment.'
6
Respondent railroad does not quarrel with this interpretation of the statute but insists that the severance pay involved here was not based on seniority and that §§ 8(b)(B) and (c) are wholly inapplicable to this case.
7
The term 'seniority' is nowhere defined in the Act, but it derives its content from private employment practices and agreements. This does not mean, however, that employers and unions are empowered by the use of transparent labels and definitions to deprive a veteran of substantial rights guaranteed by the Act. As we said in Fishgold v. Sullivan Drydock & Repair Corp., supra, '(N)o practice of employers or agreements between employers and unions can cut down the service adjustment benefits which Congress has secured the veteran under the Act.' At 285, 66 S.Ct. at 1111. The term 'seniority' is not to be limited by a narrow, technical definition but must be given a meaning that is consonant with the intention of Congress as expressed in the 1940 Act. That intention was to preserve for the returning veterans the rights and benefits which would have automatically accrued to them had they remained in private employment rather than responding to the call of their country. In this case there can be no doubt that the amounts of the severance payments were based primarily on the employees' length of service with the railroad. The railroad contends, however, that the allowances were not based on seniority, but on the actual total service rendered by the employee. This is hardly consistent with the bizarre results possible under the definition of 'compensated service.' As the Government2 points out, it is possible under the agreement for an employee to receive credit for a whole year of 'compensated service' by working a mere seven days. There would be no distinction whatever between the man who worked one day a month for seven months and the man who worked 365 days in a year. The use of the label 'compensated service' cannot obscure the fact that the real nature of these payments was compensation for loss of jobs. And the cost to an employee of losing his job is not measured by how much work he did in the past—no matter how calculated—but by the rights and benefits he forfeits by giving up his job. Among employees who worked at the same jobs in the same craft and class the number and value of the rights and benefits increase in proportion to the amount of seniority, and it is only natural that those with the most seniority should receive the highest allowances since they were giving up more rights and benefits than those with less seniority. The requirements of the 1940 Act are not satisfied by giving returning veterans seniority in some general abstract sense and then denying them the perquisites and benefits that flow from it. We think it clear that the amount of these allowances is just as much a perquisite of seniority as the more traditional benefits such as work preference and order of lay-off and recall. We hold that the failure to credit petitioners' 'compensated service' time with the period spent in the armed services does not accord petitioners the right to be reinstated 'without loss of seniority' guaranteed by §§ 8(b)(B) and (c).
8
What we have said makes it unnecessary to discuss in detail the Court of Appeals' holding that these allowances did not come within the concepts of 'seniority, status, and pay' and thus were governed not by § 8(b)(B) and the part of § 8(c) relating to seniority but rather by the clause in § 8(c) stating that returning veterans 'shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces * * *.' The Government contends that the 'other benefits' clause of § 8(c) was added to the bill 'for the express purpose of entitling employees to receive, while in service, such benefits as their employers accorded employees on leave of absence.' The legislative history referred to in the Government's brief persuasively supports such a purpose.3
9
This argument of the Government—that the 'insurance or other benefits' clause was put in to provide these company benefits for the serviceman at the time he was in the armed forces—also finds some support in the fact that § 8(c) provides that the serviceman would be entitled to these benefits only if they were 'in effect with the employer at the time such person was inducted into such forces * * *.' Without attempting in this case to determine the exact scope of this provision of § 8(c) it is enough to say that we consider that it was intended to add certain protections to the veteran and not to take away those which are granted him by § 8(b)(B) and the other clauses of § 8(c).
10
Since the Court of Appeals held that the provisions of § 8(b)(B) did not apply to separation allowances it found it unnecessary to decide an alternative ground which the railroad contended should cause reversal. That contention was that since the agreement between the railroad and the union was entered into more than one year after petitioners were restored to their employment, the Act has no application to any rights created by the agreement. This argument rested on that part of § 8(c) which provides that a veteran who is restored to employment 'shall not be discharged from such position without cause within one year after such restoration.' The District Court rejected the contention as having no merit. We agree with the District Court and believe this contention to be so wholly without merit that the case need not be remanded to the Court of Appeals for its decision on the point. In Oakley v. Louisville & N.R. Co., 338 U.S. 278, 284, 70 S.Ct. 119, 94 L.Ed. 87, we said:
11
'(T)he expiration of the year did not terminate the veteran's right to the seniority to which he was entitled by virtue of the Act's treatment of him as though he had remained continuously in his civilian employment; nor did it open the door to discrimination against him, as a veteran. * * * His seniority status * * * continues beyond the first year of his reemployment * * *.'
12
What we said there governs this case. The District Court was correct in rejecting this contention of the railroad.
13
In the Court of Appeals the railroad also contended that the District Court had improperly computed the interest owing on the judgment awarded the plaintiffs. Because of its holding that petitioners were entitled to no recovery at all the Court of Appeals declined to decide the question of interest. The record before us does not present that question with sufficient clarity for us to pass upon it.
14
We affirm the judgment of the District Court holding that petitioners are entitled to recover from the railroad the stipulated damages due them because they are entitled to credit for the full amount of time served in the armed forces in calculating their severance pay. But the cause is remanded to the Court of Appeals for further consideration of the interest contention.
15
Reversed and remanded.
16
THE CHIEF JUSTICE took no part in the decision of this case.
1
54 Stat. 890, as amended, 50 U.S.C.App. § 308 (1946 ed.). Section 8 of the 1940 Act is now § 9 of the Universal Military Training and Service Act, 62 Stat. 614, as amended, 50 U.S.C.App. § 459 (1964 ed.).
2
The Department of Justice is representing petitioners in this case pursuant to § 8(e) of the 1940 Act.
3
Senator Sheppard in explaining an amendment which included the 'other benefits' provision said:
'That amendment would make certain that all trainees would receive the same insurance and other benefits as those who are on furlough or leave of absence in private life. It seems to me to be a good suggestion.' 86 Cong.Rec. 10914. And Congressman May, the Chairman of the House Committee on Military Affairs, had this colloquy with another Congressman on the same question:
'Mr. MILLER. In reference to insurance, will that apply to group insurance? Many industrial plants, of course, carry group insurance. Under those contracts they continue their participation while a man is on vacation or on furlough. Would they continue those policies in force?
'Mr. MAY. This would continue them in force and that is the very purpose of the legislation.' 86 Cong.Rec. 11702.
| 12
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383 U.S. 210
86 S.Ct. 767
15 L.Ed.2d 707
Richard H. M. SWANN et al.v.Tom ADAMS et al.
No. 973.
Feb. 25, 1966.
D. P. S. Paul, P. D. Thomson, Neal Rutledge, Richard F. Wolfson, Thomas C. Britton and Stuart Simon, for appellants.
Earl Faircloth, Atty. Gen., of Florida, and Edward D. Cowart and Sam Spector, Asst. Attys. Gen., for appellees.
PER CURIAM.
1
We previously remanded this case to the District Court for further proceedings in light of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, and the other cases relating to legislative reapportionment decided with Reynolds. 378 U.S. 553, 84 S.Ct. 1904, 12 L.Ed.2d 1033. The District Court deferred action until the conclusion of the legislative session which convened on April 6, 1965, stating that it would reconsider its decision should the Florida Legislature fail to effect a valid reapportionment by July 1, 1965.
2
A reapportionment law was passed by the legislature on June 29, 1965. On July 6, the appellants filed a joint petition asking the District Court to declare the newly enacted plan unconstitutional and proposing an alternative plan. The District Court did not take action until October 5 when it ordered oral argument for November 2, 1965. On December 23 the District Court concluded that the newly passed reapportionment plan failed to 'meet the requirements of the Equal Protection Clause of the Federal Constitution as construed and applied in Reynolds v. Sims * * *.'
3
Although the District Court concluded that the plan did not comport with constitutional requirements, it approved the plan (making only minor changes) on an interim basis. Its approval was limited to the period ending 60 days after the adjournment of the 1967 session of the Florida Legislature.
4
We have no occasion to review the District Court's determination that the legislative reapportionment plan fails to meet constitutional standards. Indeed, Florida does not contend that the District Court erred in this regard, having conceded below that the plan was constitutionally deficient. We hold, however, that in approving the plan on an interim basis, the District Court erred. This litigation was commenced in 1962. The effect of the District Court's decision is to delay effectuation of a valid apportionment in Florida until at least 1969. While recognizing the desirability of permitting the Florida Legislature itself to determine the course of reapportionment, we find no warrant for perpetuating what all concede to be an unconstitutional apportionment for another three years.
5
We reverse and remand to the District Court so that a valid reapportionment plan will be made effective for the 1966 elections.
6
Reversed and remanded.
7
Mr. Justice HARLAN and Mr. Justice STEWART would affirm the judgment.
8
Mr. Justice FORTAS took no part in the consideration or decision of this case.
| 12
|
383 U.S. 272
86 S.Ct. 862
15 L.Ed.2d 751
FRIBOURG NAVIGATION COMPANY, Inc., Petitioner,v.COMMISSIONER OF INTERNAL REVENUE.
No. 23.
Argued Nov. 10, 1965.
Decided March 7, 1966.
[Syllabus from pages 272-273 intentionally omitted]
James B. Lewis, New York City, for petitioner.
Jack S. Levin, Dept. of Justice, Washington, D.C., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The question presented for determination is whether, as a matter of law, the sale of a depreciable asset for an amount in excess of its adjusted basis at the beginning of the year of sale bars deduction of depreciation for that year.
2
On December 21, 1955, the taxpayer, Fribourg Navigation Co., Inc., purchased the S. S. Joseph Feuer, a used Liberty ship, for $469,000. Prior to the acquisition, the taxpayer obtained a letter ruling from the Internal Revenue Service advising that the Service would accept straight-line depreciation of the ship over a useful economic life of three years, subject to change if warranted by subsequent experience. The letter ruling also advised that the Service would accept a salvage value on the Feuer of $5 per dead-weight ton, amounting to $54,000. Acting in accordance with the ruling the taxpayer computed allowable depreciation, and in its income tax returns for 1955 and 1956 claimed ratable depreciation deductions for the 10-day period from the date of purchase to the end of 1955 and for the full year 1956. The Internal Revenue Service audited the returns for each of these years and accepted the depreciation deductions claimed without adjustment. As a result of these depreciation deductions, the adjusted basis of the ship at the beginning of 1957 was $326,627.73.
3
In July of 1956, Egypt seized the Suez Canal. During the ensuing hostilities the canal became blocked by sunken vessles, thus forcing ships to take longer routes to ports otherwise reached by going through the canal. The resulting scarcity of available ships to carry cargoes caused sales prices of ships to rise sharply. In January and February of 1957, even the outmoded Liberty ships brought as much as $1,000,000 on the market. In June 1957, the taxpayer accepted an offer to sell the Feuer for $700,000. Delivery was accomplished on December 23, 1957, under modified contract terms which reduced the sale price to $695,500. Prior to the sale of the Feuer, the taxpayer adopted a plan of complete liquidation pursuant to the provisions of § 337 of the Internal Revenue Code of 1954, which it thereafter carried out within 12 months. Thus, no tax liability was incurred by the taxpayer on the capital gain from the sale of the ship. As it developed, the taxpayer's timing was impeccable—by December 1957, the shipping shortage had abated and Liberty ships were being scrapped for amounts nearly identical to the $54,000 which the taxpayer and the Service had originally predicted for salvage value.
4
On its 1957 income tax return, for information purposes only, the taxpayer reported a capital gain of $504,239.51 on the disposition of the ship, measured by the selling price less the adjusted basis after taking a depreciation allowance of $135,367.24 for 357 1/2 days of 1957. The taxpayer's deductions from gross income for 1957 included the depreciation taken on the Feuer. Although the Commissioner did not question the original ruling as to the useful life and salvage value of the Feuer and did not reconsider the allowance of depreciation for 1955 and 1956, he disallowed the entire depreciation deduction for 1957. His position was sustained by a single judge in the Tax Court and, with one dissent, by a panel of the Court of Appeals for the Second Circuit. 335 F.2d 15. The taxpayer and the Commissioner agreed that the question is important, that it is currently being heavily litigated, and that there is a conflict between circuit courts of appeals on this issue. Therefore, we granted certiorari. 379 U.S. 998, 85 S.Ct. 717, 13 L.Ed.2d 700. We reverse.
I.
5
The Commissioner takes the position here and in a Revenue Ruling first published the day before the trial of this case in the Tax Court1 that the deduction for depreciation in the year of sale of a depreciable asset is limited to the amount by which the adjusted basis of the asset at the beginning of the year exceeds the amount realized from the sale. The Commissioner argues that depreciation deductions are designed to give a taxpayer deductions equal to the 'actual net cost' of the asset to the taxpayer, and since the sale price of the Feuer exceeded the adjusted basis as of the first of the year, the use of the ship during 1957 'cost' the taxpayer 'nothing.' by tying depreciation to sale price in this manner, the Commissioner has commingled two distinct and established concepts of tax accounting depreciation of an asset through wear and tear or gradual expiration of useful life and fluctuations in the value of that asset through changes in price levels or market values.
6
Section 167(a) of the Internal Revenue Code of 1954 provides, in language substantially unchanged in over 50 years of revenue statutes: 'There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)—(1) of property used in the trade or business, or (2) of property held for the production of income.' In United States v. Ludey, 274 U.S. 295, 300—301, 47 S.Ct. 608, 610, 71 L.Ed. 1054 the Court described depreciation as follows:
7
'The depreciation charge permitted as a deduction from the gross income in determining the taxable income of a business for any year represents the reduction, during the year, of the capital assets through wear and tear of the plant used. The amount of the allowance for depreciation is the sum which should be set aside for the taxable year, in order that, at the end of the useful life of the plant in the business, the aggregate of the sums set aside will (with the salvage value) suffice to provide an amount equal to the original cost.' See also Detroit Edison Co. v. Commissioner of Internal Revenue, 319 U.S. 98, 101, 63 S.Ct. 902, 903, 87 L.Ed. 1286. In so defining depreciation, tax law has long recognized the accounting concept that depreciation is a process of estimated allocation which does not take account of fluctuations in valuation through market appreciation.2
8
It is, of course, undisputed that the Commissioner may require redetermination of useful life or salvage value when it becomes apparent that either of these factors has been miscalculated. The fact of sale of an asset at an amount greater than its depreciated basis may be evidence of such a miscalculation. See Macabe Co., 42 T.C. 1105, 1115 (1964). But the fact alone of sale above adjusted basis does not establish an error in allocation. That is certainly true when, as here, the profit on sale resulted from an unexpected and shortlived, but spectacular, change in the world market.
9
The Commissioner contends that our decisions in Massey Motors, Inc. v. United States, 364 U.S. 92, 80 S.Ct. 1411, 4 L.Ed.2d 1592, and Hertz Corp. v. United States, 364 U.S. 122, 80 S.Ct. 1420, 4 L.Ed.2d 1603, confirm his theory. To the extent these cases are relevant here at all, they support the taxpayer's position. In Massey and Hertz we held that when a taxpayer, at the time he acquires an asset, reasonably expects he will use it for less than its full physical or economic life, he must, for purposes of computing depreciation, employ a useful life based on the period of expected use. We recognized in those cases that depreciation is based on estimates as to useful life and salvage value. Since the original estimates here were admittedly reasonable and proved to be accurate, there is no ground for disallowance of depreciation.
II.
10
This concept of depreciation is reflected in the Commissioner's own regulations. The reasonable allowance provided for in § 167 is explained in Treas. Reg. § 1.167(a)—1 as 'that amount which should be set aside for the taxable year in accordance with a reasonably consistent plan * * * so that the aggregate of the amounts set aside, plus the salvage value, will, at the end of the estimated useful life of the depreciable property, equal the cost or other basis of the property * * *. The allowance shall not reflect amounts representing a mere reduction in market value.' Treas.Reg. § 1.167(a)—1(c) defines salvage value as the amount, determined at the time of acquisition, which is estimated will be realizable upon sale or when it is no longer useful in the taxpayer's trade or business. That section continues: 'Salvage value shall not be changed at any time after the determination made at the time of acquisition merely because of changes in price levels. However, if there is a redetermination of useful life * * * salvage value may be redetermined based upon facts known at the time of such redetermination of useful life.' Useful life may be redetermined 'only when the change in the useful life is significant and there is a clear and convincing basis for the redetermination.' Treas.Reg. § 1.167(a)—1(b). This carefully constructed regulatory scheme provides no basis for disallowances of depreciation when no challenge has been made to the reasonableness or accuracy of the original estimates of useful life or salvage value. Further, from 1951 until after certiorari was granted in this case, the regulations dealing with amortization in excess of depreciation contained an example expressly indicating that depreciation could be taken on a depreciable asset in the year of profitable sale of that asset.3
11
The Commissioner relies heavily on Treas.Reg. § 1.167(b)—0 providing that the reasonableness of a claim for depreciation shall be determined 'upon the basis of conditions known to exist at the end of the period for which the return is made.' He contends that after the sale the taxpayer 'knew' that the Feuer had 'cost' him 'nothing' in 1957. This again ignores the distinction between depreciation and gains through market appreciation. The court below admitted that the increase in the value of the ship resulted from circumstances 'normally associated with capital gain.' The intended interplay of § 167 and the capital gains provisions is clearly reflected in Treas.Reg. § 1.167(a)—8(a)(1), which provides:
12
'Where an asset is retired by sale at arm's length, recognition of gain or loss will be subject to the provisions of sections 1002, 1231, and other applicable provisions of law.'
III.
13
The Commissioner's position represents a sudden and unwarranted volte-face from a consistent administrative and judicial practice followed prior to 1962. The taxpayer has cited a wealth of litigated cases4 and several rulings5 in which the Commissioner unhesitatingly allowed depreciation in the year of favorable sale. Against this array of authority, the Commissioner contends that he did not 'focus' on the issue in most of these instances. This is hardly a persuasive response to the overwhelmingly consistent display of his position. One might well speculate that the Commissioner did not 'focus' on the issue in many cases because he treated it as too well settled for consideration. Moreover, in several instances, the Commissioner did not merely consent to depreciation in the year of sale, but insisted over the taxpayer's objection that it be taken.6
14
The Commissioner adds that in Wier Long Leaf Lumber Co., 9 T.C. 990, rev'd on other grounds, 5 Cir., 173 F.2d 549, he did focus on the issue and there contended that no depreciation could be taken in the year of sale. However, in Wier the Tax Court allowed depreciation as to one class of assets and the Commissioner promptly acquiesced in the decision.7 1948—1 Cum.Bull. 3. This acquiescence was not withdrawn until 14 years later when the Commissioner adopted his present position. 1962—1 Cum.Bull. 5. Although we recognize that such an acquiescence does not in and of itself commit the Commissioner to this interpretation of the law, it is a significant addition to the already convincing array of authority showing the Commissioner's consistent prior position.
15
The Commissioner attempts further to explain away the authority aligned against him by stating that most of the cases and rulings prior to 1942 (when capital gain treatment was provided for sales above adjusted basis) are irrelevant since the gain on sale was taxed at the same ordinary income rate that would have been applied had depreciation been disallowed. This contention does not explain away the Commissioner's sudden decision that allowance of such depreciation involves a fundamental error in the basic concept of depreciation. Further, other than his lack of 'focus,' the Commissioner has had no explanation for those cases in which capital gain on sale was involved.8 Even in those cases before this Court upon which the Commissioner relies for support of his theory, depreciation was willingly allowed in the year of sale. In Massey Motors, Inc. v. United States, supra, although contesting the useful life of the automobiles involved, the Commissioner allowed depreciation to an estimated value of $1,325 despite sales for an average of $1,380. 364 U.S., at 94—95, 80 S.Ct. at 1413, 4 L.Ed.2d 1592. And in Hertz Corp. v. United States, supra, the Commissioner accepted claims of depreciation deductions up to the date of sale, objecting only to the taxpayer's attempt to obtain refunds by changing retroactively to the double declining balance method of depreciation.9 The fact that there are presently several hundred cases in litigation over this issue where before there were none adds testimony to the inescapable conclusion that the Commissioner has broken with consistent prior practice in espousing the novel theory he now urges upon us.
16
The authority relied on in Revenue Ruling 62—92, Cohn v. United States, 6 Cir. 259 F.2d 371, does not support this departure from established practice. Cohn was simply a case in which the taxpayer had assigned no salvage value to the property involved, and the Court of Appeals found no clear error in the selection of the amount realized on disposition of the asset at the end of its scheduled useful life as a reasonable yardstick by which to measure salvage value.10 As has been aptly stated of Cohn, 'It does not purport to set up an automatic hindsight re-evalution which becomes a self-executing redetermination of salvage value triggered by the sale of depreciable assets.' Motorlease Corp. v. United States, D.C., 215 F.Supp. 356, 363, rev'd, 2 Cir., 334 F.2d 617, pet. for cert. filed. In his brief in Cohn, the Commissioner did not rest his case on anything resembling his position here, but relied principally on the fact that the taxpayer himself had sought an adjustment of useful life and that, under the regulations, 'if there is a redetermination of useful life, the salvage value may be redetermined.' Brief for the United States, pp. 24—26, in Cohn v. United States, 6 Cir., 259 F.2d 371, quoted in Merritt, Government briefs in Cohn refute IRS disallowance of year-of-sale depreciation, 20 J. Taxation 156, 158 (1964).
IV.
17
Over the same extended period of years during which the foregoing administrative and judicial precedent was accumulating, Congress repeatedly re-enacted the depreciation provision without significant change. Thus, beyond the generally understood scope of the depreciation provision itself, the Commissioner's prior long-standing and consistent administrative practice must be deemed to have received congressional approval. See, e.g., Cammarano v. United States, 358 U.S. 498, 510—511, 79 S.Ct. 524, 531—532, 3 L.Ed.2d 462; United States v. Leslie Salt Co., 350 U.S. 383, 396—397, 76 S.Ct. 416, 423—424, 100 L.Ed. 441; Helvering v. Winmill, 305 U.S. 79, 83, 59 S.Ct. 45, 46—47, 83 L.Ed. 52.
18
The legislative history in this area makes it abundantly clear that Congress was cognizant of the revenue possibilities in sales above depreciated cost. In 1942 Congress restored capital gain treatment to sales of depreciable assets.11 The accompanying House Report stated that it would be 'an undue hardship' on taxpayers who were able to sell depreciable property at a gain over depreciated cost to treat such gain as ordinary income. H.R.Rep.No.2333, 77th Cong., 2d Sess., 54 (1942). This, of course, is pro tanto the effect of disallowing depreciation in the year of sale above adjusted basis. It would be strange indeed, especially in light of the House Report, to conlcude that Congress labored to create a tax provision which, in application to depreciable property, could by administrative fiat be made applicable only to sales of assets for amounts exceeding their basis at the beginning of the year of sale, and then only to the excess. In succeeding years Congress was repeatedly asked to enact legislation treating gains on sales of depreciated property as ordinary income;12 it declined to do so until 1962.
19
In 1961, in his Tax Message to Congress, the President observed that existing law permitted taxpayers to depreciate assets below their market value and, upon sale, to treat the difference as capital gain.13 The Secretary of the Treasury concurred in this position.14 The exhibits appended not only contain no mention of the Commissioner's power to require recalculation of depreciation in the year of sale, but refute the existence of such power. In example after example cited by the Treasury, the taxpayer had depreciated an asset, sold it for an amount in excess of its depreciated basis, and treated the difference as capital gain.15 The Treasury asserted that existing law permitted this practice, and made no mention of the power which the Commissioner now alleges he possesses to disallow year-of-sale depreciation.
20
In 1962 Congress enacted § 1245 of the Internal Revenue Code of 1954, providing that gain on future dispositions of depreciable personal property be treated as ordinary income to the extent of depreciation taken. For post-1962 transactions § 1245 applies to the situation which occurred in the instant case and would produce greater revenue. The taxpayer must report as ordinary income all depreciation recouped on sale, and this notwithstanding that the sale was part of a nonrecognition liquidation within § 337. In 1964, a more complex recapture provision dealing with real property was enacted. This time, however, Congress took into account the fact that increases in the value of real property are often attributable to a rise in the general price level and limited recapture of depreciation as ordinary income to a percentage of the excess over straight-line depreciation. H.R.Rep.No.749, 88th Cong., 1st Sess., 101—102 (1963); S.Rep.No.830, 88th Cong., 2d Sess., 132—133 (1964).16 The Commissioner's position would ignore any such limitation. Compounding congressional activity in this area with repeated re-enactment of the depreciation provision in the face of the prior consistent administrative practice, we find the Commissioner's position untenable.
V.
21
Finally, the Commissioner's position contains inconsistencies. He contends that depreciation must be disallowed in 1957 since the amount received on sale shows that the use of the asset 'cost' the taxpayer 'nothing' in that year. But under this view, since the asset was sold at an amount greater than its original purchase price, it 'cost' the taxpayer 'nothing' in 1955 and 1956 as well. The Commissioner's reliance on the structure of the annual income tax reporting system does not cure the illogic of his theory. Further, the Commissioner apparently will not extend his new theory to situations where it would benefit the taxpayer. If a depreciable asset is sold for less than its adjusted basis, it would seem to follow from the Commissioner's construction that the asset has 'cost' the taxpayer an additional amount and that further depreciation should be permitted. However, Revenue Ruling 69—92 does not extend to such a case and the Commissioner had expressly refused to make it do so.17
22
The conclusion we have reached finds support among nearly all lower federal courts that have recently dealt with this issue.18 Upon consideration en banc, the Tax Court itself has concluded that the Commissioner's position is without authorization in the statute or the regulations.19
23
In light of the foregoing, we conclude that the depreciation claimed by the taxpayer for 1957 was erroneously disallowed.
24
Reversed.
25
Mr. Justice WHITE, with whom Mr. Justice BLACK and Mr. Justice CLARK join, dissenting.
26
In my opinion, the Court of Appeals was faithful to the congressional concept of depreciation and to the Internal Revenue Code and applicable Treasury Regulations. Accordingly, I would affirm.
27
Section 167(a) of the Internal Revenue Code of 1954 authorizes as a depreciation deduction only a 'reasonable allowance' for exhaustion, wear and tear, and obsolescence. (Emphasis added.) This allowance was designed by Congress to enable the taxpayer to recover his net investment in wasting assets used in his trade or business or held for the production of income to the extent that the investment loses value through exhaustion, wear and tear, or obsolescence.1 In this manner the taxpayer will be taxed only on the net, rather than the gross, income produced by the depreciable asset in accordance with the general congressional scheme to tax only net income. It was not, however, the intent of Congress to enable the taxpayer to recover more than his actual net investment and thereby to convert ordinary income into a capital gain through excessive depreciation. 'Congress intended by the depreciation allowance not to make taxpayers a profit thereby, but merely to protect them from a loss.' Massey Motors v. United States, 364 U.S. 92, 101, 80 S.Ct. 1411, 1416. See also Detroit Edison v. Commissioner of Internal Revenue, 319 U.S. 98, 63 S.Ct. 902, 87 L.Ed. 1286, where the Court refused to allow the taxpayer to depreciate that portion of the initial investment of an asset that did not represent actual expenditure by it because borne by its customers. Accordingly, in judging whether a given depreciation deduction is 'reasonable,' we should determine whether the deduction is designed to recover tax-free only the actual investment in the asset, Massey Motors, supra, 364 U.S. at 105, 80 S.Ct. at 1418, 1419, or whether it is calculated instead to return a greater amount.
28
It would be easy enough to compute depreciation if the taxpayer were required to wait until disposition of the asset, at which time he would know with precision his net investment, before he could claim a depreciation allowance. Whether he were then required to take the entire depreciation allowance in the year of sale or permitted to reopen the previous tax years during which he held the asset and spread the allowance ratably among them, it could be ensured that he would then recover precisely, but no more than, his actual, net investment. However, both for administrative and economic reasons, Congress has chosen to allow the taxpayer to take depreciation deductions in advance of the disposition of the asset by estimating what portion of his net investment should be allocated for the use of the asset in any given year. This estimate involves two unknowns: the duration of its use by the taxpayer2 and the salvage value (resale price of the asset if it is resold).3 Every effort must be made, in estimating these two values, to come as close to the actual figures as possible. Massey Motors v. United States, supra. Indeed, it is reasonable to use estimates at all only because the actual figures are generally not knowable in advance. However, when the actual figures do become known and they differ materially from the estimates of them previously made and they can be substituted for the estimates with almost no inconvenience or unfairness, then it seems to me to be clearly unreasonable, and hence unauthorized by § 167, to continue to rely on the estimates. See Hertz Corp. v. United States, 364 U.S. 122, 128, 80 S.Ct. 1420, 1423.
29
In the present case, Fribourg knew in 1957 what its actual net investment in the S. S. Joseph Feuer would be. It knew that if it claimed the previously estimated depreciation deduction for that year it would recover more than its net investment and would be immunizing other income from normal income tax rates.4 It also knew that a readjustment could be made for 1957 with finality and without significant inconvenience because the resale value and useful life had been definitely determined. Nevertheless, Fribourg continued to use the previously estimated figures, known to it to be erroneous. This, to me, was patently unreasonable and, therefore, outside the scope of § 167.
30
Not only did Fribourg violate the terms of the statute, it also failed to comply with the applicable, long-standing Treasury Regulations. Treasury Regulation § 1.167(a)—1(b) provides that the estimate of useful life is to be redetermined by reason of conditions known to exist at the end of the taxable year whenever the change in useful life is significant and there is a clear and convincing basis for the redetermination. As a companion provision, Treas.Reg. § 1.167(a)—1(c) provides that whenever there is a redetermination of useful life, salvage value should also be redetermined if required by facts known at the time of the redetermination. At the end of the taxable year 1957, Fribourg knew it had overestimated useful life by approximately one-third, which seems to me to be a significant error. At the same time, it knew its estimate of salvage value was only about one-thirteenth the actual salvage value. And, it had the clearest and most convincing basis possible for redetermination—it knew the actual figures. As I read the above regulations, they surely require a redetermination in this situation.
31
Further, Treas.Reg. § 1.167(b)—0 says that 'deductions for depreciation shall not exceed such amounts as may be necessary to recover the unrecovered cost or other basis less salvage * * *.' To the same effect are Treas.Reg. §§ 1.167(a)—1(a) and (c), which warn that 'an asset shall not be depreciated below a reasonable salvage value,' remembering that reasonableness is to be determined 'upon the basis of conditions known to exist at the end of the period for which the return is made.' Treas.Reg. § 1.167(b) 0. (Emphasis added.) See Hertz Corp. v. United States, supra. Yet here Fribourg knowingly recovered more than its 'cost or other basis' less salvage. Here, Fribourg knowingly depreciated its asset below a reasonable salvage value in light of conditions known at the end of 1957.
32
I think the majority misreads that provision in the regulations that says 'Salvage value is the amount 'determined at the time of acquisition) which is estimated will be realizable upon sale or other disposition of an asset * * *. Salvage value shall not be changed at any time after the determination made at the time of acquisition merely because of changes in price levels.' Treas.Reg. § 1.167(a)—1(c). That provision merely recognizes the fact that in years prior to the concluding of a resale agreement the salvage value can only be estimated and it would be administratively burdensome and frequently futile to require redeterminations each year merely because of price changes that may ultimately prove ephemeral. But those provisions certainly do not express a policy against redetermination, in the year of a premature sale, of salvage value when it can be known with finality what effect the price levels will have on the salvage value. Rev. Rul. 62—92, 1962 1 Cum.Bull. 29; Cohn v. United States, 6 Cir., 259 F.2d 371, 378. The very next sentence in that regulation seems to acknowledge the relevance of price levels, provided that such recognition does not cause undue administrative hardship: 'However, if there is a redetermination of useful life * * *, salvage value may be redetermined based upon facts known at the time of such redetermination of useful life.'
33
The majority opinion faults the Commissioner for having 'commingled two distinct * * * concepts of tax accounting depreciation of an asset through wear and tear or gradual expiration of useful life and fluctuations in the value of that asset through changes in price levels or market values.' In my opinion these two concepts, as used in the Internal Revenue Code, are necessarily commingled and it is unrealistic to expect that one can be isolated from the other. One of the essential elements in the concept of depreciation deductions is salvage value, Treas.Reg. § 1.167(a)—1(a); salvage value is resale price if the asset is resold, Massey Motors v. United States, supra, 364 U.S. at 105—107, 80 S.Ct. at 1418—1419; Edward V. Lane, 37 T.C. 188; and resale price is directly influenced by fluctuations in market value. To the extent that such fluctuations are predictable, they must be considered in making a reasonable estimate of salvage or resale value of the investment. See Bolta Co., 4 CCH Tax Ct.Mem. 1067.5 In addition, as reflected by this case, predictable market fluctuations in value may also affect the useful life of the asset. To the extent that disposal of an asset by sale becomes more attractive through market appreciation it can be expected that useful life, as defined in Massey Motors, supra, will shorten. Although market appreciation in this case was more rapid than will normally be the case, it was predictable for more than a year before Fribourg sold its ship, and by the end of 1957 Fribourg knew exactly what effect market appreciation would have upon the resale value of useful life. In this situation market appreciation should not have been disregarded.
34
The majority also contends that the Commissioner's position contains an inconsistency because he disallowed depreciation only for the year in which the sale occurred and did not require a disallowance for previous years although the resale price was sufficiently high to indicate that the S. S. Joseph Feuer did not 'cost' Fribourg anything in the earlier years either. However, in the earlier tax years it was reasonable to rely on the estimated salvage value, since the actual salvage value was not then known. At any rate, it is well established that a modification of the depreciation allowance (for whatever reason) will not be applied retroactively to previous tax years. For example, if the useful life is determined to be longer than originally believed, the allowable depreciation is not modified for the prior years in which excessive depreciation had been taken, but the remaining undepreciated basis minus salvage value is spread ratably over the new estimated remaining useful life and depreciation deductions taken accordingly for the current and succeeding years. Commissioner of Internal Revenue v. Cleveland Adolph Mayer Realty Corp., 6 Cir., 160 F.2d 1012; Commissioner of Internal Revenue v. Mutual Fertilizer Co., 5 Cir., 159 F.2d 470; 4 Mertens, Law of Federal Income Taxation, § 23.47; see also Virginian Hotel Corp. of Lynchburg v. Helvering, 319 U.S. 523, 63 S.Ct. 1260, 87 L.Ed. 1561; S.Rep.No. 665, 72d Cong., 1st Sess., 29.
35
There is a further alleged inconsistency because the Commissioner may be refusing to allow additional depreciation in the year of sale when salvage value turns out to be less than the adjusted basis at the time of sale. This alleged inconsistency, however, should be dealt with when it is properly presented to us.6
36
Finally, I turn to the majority's contention that the Commissioner's position represents a dramatic departure from previous administrative and judicial practice and that congressional re-enactment of the depreciation provision during this time reflects congressional approval of that previous interpretation.
37
Several of the cases and revenue rulings relied upon by the majority to establish past practice were concerned with tax years previous to 1922,7 when the first capital gain provision became applicable.8 I would not give precedential significance to positions taken during that time because the tax saving resulting from a depreciation deduction in the year of sale would have been exactly offset by the tax liability resulting from the correspondingly greater gain upon the sale of the asset due to the lower basis. The remaining revenue ruling9 and most of the remaining cases relied upon by the majority were concerned primarily with issues other than the one now before us.10 In the absence of any indication that the Commissioner or the courts in those instances focused on the precise issue now before us these examples are without precedential value. There is one early decision of the Board of Tax Appeals, Herbert Simons, 19 B.T.A. 711, and one by the Tax Court, Wier Long Leaf Lumber Co., 9 T.C. 990, that did expressly consider the problem whether a taxpayer could claim depreciation in the year he sells an asset at a price above his depreciated basis for that asset. In Wier Long Leaf Lumber Co. the Commissioner challenged the right of the taxpayer to take depreciation in the year of sale and at least part of that court's opinion seems to support the Commissioner's position.11 This leaves only Herbert Simons in which the Commissioner and the Board appear to take a considered position inconsistent with that now urged by the Commissioner. In my opinion that decision should be disapproved as being inconsistent with the statutory provision for depreciation and the interpretative regulations. In recent years, it should be observed, there is substantial judicial authority for the disallowance of depreciation in the year of a sale above depreciated basis.12
38
To the extent that the Commissioner took an inconsistent position in any of these early cases, I would certainly not now hold him to that position.13 We have frequently in the past recognized the Commissioner's authority to re-evaluate a prior position upon the basis of greater experience and reflection and to adjust that position to the extent that he becomes convinced that an adjustment is necessary to comport with congressional intent, even when this results in a distinct reversal of a previous position and the taxpayer had relied upon the previous position.14 Dixon v. United States, 381 U.S. 68, 85 S.Ct. 1301, 14 L.Ed.2d 223; Automobile Club of Michigan v. Commissioner of Internal Revenue, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746. Were the Commissioner denied this authority, it would be tantamount to freezing in acknowledged error. It seems strange, therefore, that the majority today would deny the Commissioner this authority when his earlier position was not clear and when Fribourg has made absolutely no showing that it would not have made arrangements to sell the S. S. Joseph Feuer when it did but for a reliance upon the alleged previously inconsistent position of the Commissioner.
39
Under these circumstances, it also seems unrealistic to me to argue that, by re-enacting the depreciation provision on several occasions prior to the promulgation of Rev. Rul. 62—92 in 1962, Congress intended to give force of statutory law to the position that depreciation should be allowed on an asset in the year it is sold at a price above its depreciated basis. This reasoning has been recognized as 'no more than an aid in statutory construction,' Helvering v. Reynolds, 313 U.S. 428, 432, 61 S.Ct. 971, 973, 85 L.Ed. 1438, and as 'an unreliable indicium at best' by The Chief Justice writing for the Court in Commissioner of Internal Revenue v. Glenshaw Glass Co., 348 U.S. 426, 431, 75 S.Ct. 473, 476—477, 99 L.Ed. 483. It is a particularly unreliable aid in statutory construction unless the previous interpretation had been clearly and officially promulgated and Congress had been specifically advised of that interpretation in connection with the re-enactment of the relevant statutory provision. Higgins v. Commissioner of Internal Revenue, 312 U.S. 212, 61 S.Ct. 475, 85 L.Ed. 783; see generally, 1 Davis, Administrative Law § 5.07. Here there was no official Treasury Regulation of Treasury Decision clearly articulating the theory that depreciation should be allowed in the year of profitable sale. Indeed, as indicated earlier, the relevant Treasury Regulations seemed generally to indicate quite the opposite conclusion. Nor is there any indication that anyone asserted to Congress during a time that it was considering re-enactment of the depreciation provision that the Commissioner had embraced a position that depreciation had to be allowed on property in the year that it was sold at a price in excess of its adjusted basis. The legislative history and various requests made to Congress upon which the majority relies were directed to the capital gain provisions of the Code, not the depreciation provision. And, there are indications that Congress intended to treat the two provisions separately. See H.R.Rep.No. 749, 88th Cong., 1st Sess., 103 (1963); S.Rep.No. 830, 88th Cong., 2d Sess., 133 (1964). For example, the 'undue hardship' which prompted Congress to enact § 1231 was no doubt the hardship of paying tax on gain resulting from many years of appreciation when all of the gain is bunched into the year of sale. The Commissioner's refusal to allow depreciation in the year of profitable sale is in no way inconsistent with this attempt by Congress to alleviate hardships resulting from the bunching of income. Further, the fact that Congress was asked in the President's 1961 Tax Message to enact legislation treating gain upon the sale of depreciated property as regular income to the extent that the property had previously been depreciated should not be construed as a representation to Congress that the Commissioner did not have the authority he now claims. That recommendation was generally concerned with excessive depreciation in years 'previous' to the year of sale, an abuse that the Commissioner has never claimed to be able to correct without congressional assistance. None of the examples cited to Congress in this Message are inconsistent with the Commissioner's authority to deny depreciation in the year of profitable sale.15
40
In 1962 and again in 1964 Congress enacted certain recapture provisions.16 These provisions indicate a congressional attitude, consistent with the Commissioner's position, that depreciation should not exceed actual, net investment and that excessive depreciation should not be permitted to convert ordinary income into capital gain. The only concrete evidence that Congress was really aware of the Commissioner's position that depreciation should be disallowed in the year of profitable sale is to be found in the House and Senate Reports considering § 1250, the recapture provision dealing with depreciable real estate. I think the comments contained in those Reports on the position taken by the Commissioner are highly relevant:
41
'(T)he enactment of this provision is not intended to affect the question of whether all or any part of a claimed deduction for depreciation is in fact allowable. For example, since in the year real property is sold the actual value of the property is known, it has been held that depreciation deductions should not be allowed to the extent they reduce the adjusted basis of the property below the actual amount realized. This provision, in providing for ordinary income treatment for certain additional depreciation, is not intended to affect this holding.' H.R.Rep.No. 749, 88th Cong., 1st Sess., p. 103 (1963); S.Rep.No. 830, 88th Cong., 2d Sess., p. 133 (1964). (Emphasis added.)
42
Congress gave to the Secretary of the Treasury or his delegate, not to this Court, the primary responsibility of determining what constitutes a 'reasonable' allowance for depreciation. When the Commissioner adopts a rational position that is consistent with the purpose behind the depreciation deduction, congressional intent, and the language of the statute and interpretative Treasury Regulations, I would affirm that position.
1
Rev. Rul. 62—92, 1962—1 Cum. Bull. 29 (originally T.I.R. 384, June 7, 1962). That Ruling provides in part:
'* * * the deduction for depreciation of an asset used in the trade or business or in the production of income shall be adjusted in the year of disposition so that the deduction, otherwise properly allowable for such year under the taxpayer's method of accounting for depreciation, is limited to the amount, if any, by which the adjusted basis of the property at the beginning of such year exceeds the amount realized from sale or exchange.'
2
See, e.g., Macabe Co., 42 T.C. 1105, 1109; Wier Long Leaf Lumber Co., 9 T.C. 990, 999, rev'd on other grounds, 5 Cir., 173 F.2d 549; Note, 50 Va.L.Rev. 1431 (1964); Comment, 11 U.C.L.A.L.Rev. 593 (1964). See also Montgomery's Auditing 268 (8th ed. 1957).
3
Treas. Reg. § 1.1238—1, Example (1), based on H.R.Rep. No. 3124, 81st Cong., 2d Sess., 29 (1950), amended to conform to the Commissioner's present position on June 1, 1965. 1965—1 Cum. Bull. 366.
4
See, e.g., United States v. Ludey, 274 U.S. 295, 47 S.Ct. 608, 71 L.Ed. 1054 (1927); Eldorado Coal & Mining Co. v. Mager, 255 U.S. 522, 526, 41 S.Ct. 390, 65 L.Ed. 757 (1921); Beckridge Corp. v. Commissioner of Internal Revenue, 129 F.2d 318 (C.A.2d Cir. 1942); Clark Thread Co. v. Commissioner of Internal Revenue, 100 F.2d 257 (C.A.3d Cir. 1938), affirming 28 B.T.A. 1128, 1140 (1933); Kittredge v. Commissioner of Internal Revenue, 88 F.2d 632 (C.A.2d Cir. 1937); Seymour Mfg. Co. v. Burnet, 61 App.D.C. 22, 56 F.2d 494, 495—496 (1932); Hall v. United States, 43 F.Supp. 130, 131—132, 95 Ct.Cl. 539, cert. denied, 316 U.S. 664, 62 S.Ct. 944, 86 L.Ed. 1740 (1942); Herbert Simons, 19 B.T.A. 711, 712—713 (1930); Max Eichenberg, 16 B.T.A. 1368, 1370 (1929); Louis Kalb, 15 B.T.A. 865, 866 (1929); Even Realty Co., 1 B.T.A. 355, 356 (1925); H. L. Gatlin, 19 CCH Tax Ct.Mem. 131, 132 (1960); P. H. & J. M. Brown Co., 18 CCH Tax Ct.Mem. 708, 709—710 (1959).
5
G.C.M. 1597, VI—1 Cum.Bull. 71 (1927); S.M. 2112, III—2 Cum.Bull. 22(1924); A.R.R. 6930, III—1 Cum.Bull. 45 (1924); I.T. 1494, I—2 Cum.Bull. 19 (1922). See also I.T. 1158, I—1 Cum.Bull. 173 (1922).
6
In Herbert Simons, supra, note 4, the taxpayers tried without success to forgo the depreciation deduction for the year of sale since the taxes payable on the resulting increase in ordinary income would have been less than the increased amount payable under the existing capital gain provision if depreciation were taken. In several other cases the Commissioner expressly required a year-of-sale depreciation deduction, thus increasing the gain on the sale. See, e.g., Clark Thread Co. v. Commissioner of Internal Revenue, Kittredge v. Commissioner of Internal Revenue, Even Realty Co., supra, note 4.
7
The Commissioner's argument that the decision in Wier was ambiguous since the court there disallowed depreciation of another asset in the year of sale is without merit. The court carefully rested its decision disallowing depreciation of that asset on the fact that there was no evidence in the record which would permit it to ascertain reasonable salvage value. With respect to the other class of assets, the court stated:
'The parties have by their stipulation narrowed the scope of controversy. They present for consideration only the question whether the price received from the sale of the depreciated automobiles precludes any depreciation allowance.' 9 T.C. 990, 999.
The court held: 'The depreciation deduction can not be disallowed merely by reason of the price received for the article without consideration of other factors.' Ibid.
8
See Hall v. United States, Herbert Simons, Max Eichenberg, H. L. Gatlin, P. H. & J. M. Brown Co., supra, note 4; G.C.M. 1597, VI—1 Cum.Bull. 71 (1927). See also cases cited, note 6, supra.
9
See D.C., 165 F.Supp. 261, 265, 269, and Transcript of Record in Hertz in this Court, at 13—18.
10
Note, for example, the Court's reliance on Wier Long Leaf Lumber Co., discussed in note 7, supra. 259 F.2d, at 378—379. Indeed, the opinion in Cohn clearly recognizes the established practice of depreciation which the Commissioner would have us overthrow. The Court there noted:
'Necessarily, salvage value is also an estimate made at the time when the asset is first subject to a depreciation allowance. * * * If the asset is sold at a price in excess of its depreciated value, such excess is taxable in the nature of a capital gain.' Id., at 377.
11
Int.Rev.Code, 1939, § 117(j), 56 Stat. 846 (now Int.Rev.Code, 1954, § 1231).
12
See, e.g., Hearings before the House Ways and Means Committee, 80th Cong., 1st Sess., on Revenue Revisions, pt. 5, p. 3756 (1948), at which the Treasury recommended that gains on sales of depreciable assets should be subject to ordinary income taxation to the extent the gains arose from accelerated depreciation; Hearings before the Senate Finance Committee, 83d Cong., 2d Sess., on H.R. 8300, pt. 3, p. 1324 (1954), at which Congress was asked by the American Institute of Accountants to enact that all gains on sales of depreciable assets be treated as ordinary income. See also Treasury Department Release A—761, February 15, 1960.
13
The President stated:
'Another flaw which should be corrected at this time relates to the taxation of gains on the sale of depreciable business property. Such gains are now taxed at the preferential rate applicable to capital gains, even though they represent ordinary income.
'This situation arises because the statutory rate of depreciation may not coincide with the actual decline in the value of the asset. While the taxpayer holds the property, depreciation is taken as a deduction from ordinary income. Upon its resale, where the amount of depreciation allowable exceeds the decline in the actual value of the asset so that a gain occurs, this gain under present law is taxed at the preferential capital gains rate. The advantages resulting from this practice have been increased by the liberalization of depreciation rates.
'I therefore recommend that capital gains treatment be withdrawn from gains on the disposition of depreciable property, both personal and real property, to the extent that depreciation has been deducted for such property by the seller in previous years, permitting only the excess of the sales price over the original cost to be treated as a capital gain.' Message on Taxation, Hearings before the Committee on Ways and Means, House of Representatives, H.R.Doc. No. 140, 87th Cong., 1st Sess., 11 (1961).
14
Id., at 40.
15
Id., at 262—267. See also Treas.Reg. § 1.1238—1, note 3, supra.
16
In 1963, with the instant case already in the courts, Congress for the first time alluded to the position now taken by the Commissioner, noting that:
'* * * it has been held that depreciation deductions should not be allowed to the extent they reduce the adjusted basis of the property below the actual amount realized. This provision, in providing for ordinary income treatment for certain additional depreciation, is not intended to affect this holding.' H.R.Rep.No. 749, 88th Cong., 1st Sess., 103 (1963); S.Rep.No. 830, 88th Cong., 2d Sess., 133, U.S. Code Cong. & Admin.News 1964, p. 1412 (1964).
17
In Engineers Limited Pipeline Co., 44 T.C. 226 (1965), the taxpayer contended that he should get a further depreciation deduction on assets which he sold for less than their depreciated basis. The Commissioner disallowed the additional deduction. See also Whitaker v. Commissioner of Internal Revenue, 5 Cir., 259 F.2d 379.
18
See United States v. § & A Co., 338 F.2d 629 (C.A.8th Cir.), affirming 218 F.Supp. 677 (D.C.D.Minn.), pet. for cert. filed; Occidental Loan Co. v. United States, 235 F.Supp. 519 (D.C.S.D.Calif.); Wyoming Builders, Inc. v. United States, 227 F.Supp. 534 (D.C.D.Wyo.); Motorlease Corp. v. United States, 215 F.Supp. 356 (D.C.D.Conn.), reversed on the authority of the decision below in the instant case, 334 F.2d 617 (C.A.2d Cir.), pet. for cert. filed; Mountain States Mixed Feed Co. v. United States, 245 F.Supp. 369 (D.C.D.Colo.). See also Kimball Gas Products Co. v. United States, CCH 63—2 U.S. Tax Cas. 9507 (D.C.W.D.Tex.). Contra, Killebrew v. United States, 234 F.Supp. 481 (D.C.E.D.Tenn.).
19
Macabe Co., 42 T.C. 1105 (1964). The attempt in Macabe to distinguish the instant case on the ground that here the taxpayer used inaccurate estimates and failed to sustain its burden of proof of market appreciation ignores the fact that the Commissioner does not contest the reasonableness of the original estimates of useful life and salvage value. See McNerney, Disallowance of Depreciation in the Year of Sale at a Gain, 20 Tax L.Rev. 615, 650 (1965).
1
The House Report on the 1954 Internal Revenue Code has defined depreciation as 'allowances (whereby) capital invested in an asset is recovered tax-free over the years it is used in a business.' H.R.Rep.No. 1337, 83d Cong., 2d Sess., p. 22, U.S.Code Cong. & Admin.News 1954, p. 4046. (Emphasis added.) Similarly, in Virginian Hotel Corp. of Lynchburg v. Helvering, 319 U.S. 523, 63 S.Ct. 1260, 87 L.Ed. 1561, the Court discussed depreciation in terms of an amount 'which, along with salvage value, will replace the original investment of the property * * *.' 319 U.S., at 528, 63 S.Ct., at 1263. This Court has, on other occasions, spoken of depreciation in terms of a gradual sale of the depreciable asset as it is physically used up year by year in the trade or business. See Massey Motors v. United States, 364 U.S. 92, 104, 80 S.Ct. 1411, 1418, 4 L.Ed.2d 1592. However, this is to say the same thing in different words. Even if one views depreciation as representative of the physical exhaustion of an asset, it is not measured in terms of nuts and bolts but in terms of the 'financial consequences to the taxpayer of the subtle effects of time and use on * * * his capital assets.' Detroit Edison Co. v. Commissioner of Internal Revenue, 319 U.S. 98, 101, 63 S.Ct. 902, 904. Investment is not to be measured in terms of original or initial cost, but in terms of 'net investment,' Detroit Edison Co. v. Commissioner of Internal Revenue, supra, 319 U.S. at 103, 63 S.Ct. at 904, or 'actual cost,' Massey Motors v. United States, supra, 364 U.S. at 106, 80 S.Ct. at 1419. Accordingly, salvage value, Treas.Reg. § 1.167 (a)—1, and other reimbursements received by the taxpayer, Detroit Edison Co. v. Commissioner of Internal Revenue, supra, must be deducted from the taxpayer's initial investment in the asset in order to arrive at a depreciable 'net investment.' I use the word 'investment' rather than 'cost' because 'cost' may have so many different meanings, both to the accountant and to the tax lawyer, and some of those meanings would do considerable violence to the congressional purpose for depreciation allowances.
2
Useful life is to reflect the realities of the taxpayer's actual experience rather than a possibly unrealistic conceptualized idea of inherent physical life. Massey Motors v. United States, supra, n. 1.
3
As is the case with useful life, salvage value should reflect the actualities of the situation. When a depreciated asset is sold the economic reality is that the resale price is the salvage value. This practical definition of salvage value was clearly contemplated in Massey Motors, supra, n. 1, where the Court talked in terms of 'real salvage price' and 'resale' value. Id., 364 U.S. at 105, 107, 80 S.Ct. at 1418, 1419. (Emphasis added.) In Hertz Corp. v. United States, 364 U.S. 122, 127, 80 S.Ct. 1420, 1423, 4 L.Ed.2d 1603, the Court spoke in terms of 'the price that will be received when the asset is retired.' See also Treas.Reg. § 1.167(a)—1(c), which speaks in terms of an amount 'realizable upon sale * * * of an asset when it is no longer useful in the taxpayer's trade or business or in the production of his income * * *.'
4
It is in this economic sense that the Commissioner means that it 'cost' Fribourg nothing to use the S. S. Joseph Feuer in 1957. Obviously the ship suffered some physical wear and tear during use in 1957. But measured in economic terms Fribourg had already been compensated in advance for that wear and tear as it affected its net investment in the ship because excessive depreciation deductions had been taken in the earlier years. The Commissioner is asking now only that Fribourg be prevented from deliberately compounding the error innocently made in earlier years by continuing to claim depreciation deductions after it knew its entire net investment in the S. S. Joseph Feuer had already been recovered.
5
The Tax Court's current position on the relevance of predictable market appreciation at the time of a determination of useful life and salvage value is not entirely clear. Compare Smith Leasing Co., 43 T.C. 37, with Macabe Co., 42 T.C. 1105.
6
Similarly, because our situation involves appreciated market values, we are not now concerned with that sentence in Treas.Reg. § 1.167(a)—1(a) that reads, 'The allowance shall not reflect amounts representing a mere reduction in market value.' At any rate, this sentence merely reflects the congressional intent that a taxpayer be permitted to recover his net investment in an asset to the extent that the net investment represents 'exhaustion, wear and tear, (or) obsolescence.'
7
Of the rulings cited in n. 5 of the majority opinion, only one, G.C.M. 1597, VI—1 Cum.Bull. 71 (1927), involved a tax year after 1921. Both Supreme Court cases cited in n. 4 of the majority opinion, United States v. Ludey, 274 U.S. 295, 47 S.Ct. 608, 71 L.Ed. 1054; and Eldorado Coal & Mining Co. v. Mager, 255 U.S. 522, 41 S.Ct. 390, 65 L.Ed. 757, were concerned with tax years prior to 1922. Similarly, Louis Kalb, 15 B.T.A. 865, and Even Realty Co., 1 B.T.A. 355, involved tax years prior to 1922.
8
42 Stat. 232, § 206(a).
9
G.C.M. 1597, VI—1 Cum.Bull. 71 (1927). See also Treas.Reg. § 1.1238—1, Example (1), which was designed to show the interaction between §§ 168 and 1238, not the allowance of depreciation of § 167. That example has now been retroactively amended to the date of its original adoption in 1951. T.D. 6825, 1965—1 Cum.Bull. 366.
10
Beckridge Corp. v. Commissioner of Internal Revenue, 2 Cir., 129 F.2d 318; Clark Thread Co. v. Commissioner of Internal Revenue, 3 Cir., 100 F.2d 257; Kittredge v. Commissioner of Internal Revenue, 2 Cir., 88 F.2d 632; Seymour Mfg. Co. v. Burnet, 61 App.D.C. 22, 56 F.2d 494; Hall v. United States, 43 F.Supp. 130, 95 Ct.Cl. 539; Max Eichenberg, 16 B.T.A. 1368; H. L. Gatlin, 19 CCH Tax Ct.Mem. 131; P. H. & J. M. Brown Co., 18 CCH Tax Ct.Mem. 708.
11
See also Duncan-Homer Realty Co., 6 B.T.A. 730 (1927), where the Board of Tax Appeals sustained the Commissioner's refusal to allow depreciation in the year of a profitable sale.
12
Fribourg Navigation Co., Inc. v. Commissioner of Internal Revenue, 2 Cir., 335 F.2d 15; United States v. Motorlease Corp., 2 Cir., 334 F.2d 617, pet. for cert. filed; Cohn v. United States, 6 Cir., 259 F.2d 371; Killebrew v. United States, D.C., 234 F.Supp. 481.
13
The Commissioner's acquiescence in Wier Long Leaf Lumber Co., 9 T.C. 990, can have no clearer significance than has the opinion itself, with its arguably inconsistent holdings. At any rate, at the front of each cumulative bulletin it is clearly explained that acquiescences 'have none of the force or effect of Treasury Decisions and do not commit the Department to any interpretation of the law.' See Dixon v. United States, 381 U.S. 68, 85 S.Ct. 1301, 14 L.Ed.2d 223.
14
See 26 U.S.C.A. § 7805 (1964 ed.), which gives authority to the Secretary of the Treasury or his delegate to 'prescribe all needful rules and regulations * * *, including all rules and regulations as may be necessary by reason of any alteration of law in relation to internal revenue.' Subsection (b) of that section says 'The Secretary 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.'
15
Similarly, the other requests addressed to Congress mentioned in the majority opinion were concerned with problems beyond the remedial power of the Commissioner to disallow depreciation in the year of profitable sale.
16
26 U.S.C. §§ 1245, 1250 (1964 ed.).
| 1112
|
383 U.S. 375
86 S.Ct. 836
15 L.Ed.2d 815
Frank J. PATE, Warden, Petitioner,v.Theodore ROBINSON.
No. 382.
Argued Jan. 26, 1966.
Decided March 7, 1966.
Richard A. Michael, Chicago, Ill., for petitioner.
John C. Tucker, Chicago, Ill., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
In 1959 respondent Robinson was convicted of the murder of his commonlaw wife, Flossie May Ward, and was sentenced to imprisonment for life. Being an indigent he was defended by court-appointed counsel. It was conceded at trial that Robinson shot and killed Flossie May, but his counsel claimed that he was insane at the time of the shooting and raised the issue of his incompetence to stand trial. On writ of error to the Supreme Court of Illinois it was asserted that the trial court's rejection of these contentions deprived Robinson of due process of law under the Fourteenth Amendment. His conviction was affirmed, the court finding that no hearing on mental capacity to stand trial had been equested, that the evidence failed to raise sufficient doubt as to his competence to require the trial court to conduct a hearing on its own motion, and further that the evidence did not raise a 'reasonable doubt' as to his sanity at the time of the offense. People v. Robinson, 22 Ill.2d 162, 174 N.E.2d 820 (1961). We denied certiorari. Robinson v. Pate, 368 U.S. 995, 82 S.Ct. 618, 7 L.Ed.2d 533 (1962). Thereupon, Robinson filed this petition for habeas corpus, which was denied without a hearing by the United States District Court for the Northern District of Illinois. The Court of Appeals reversed, United States ex rel. Robinson v. Pate, 7 Cir., 345 F.2d 691 (1965), on the ground that Robinson was convicted in an unduly hurried trial without a fair opportunity to obtain expert psychiatric testimony, and without sufficient development of the facts on the issues of Robinson's insanity when he committed the homicide and his present incompetence. It remanded the case to the District Court with directions to appoint counsel for Robinson; to hold a hearing as to his sanity when he committed the alleged offense; and, if it found him to have been insane at that time, to order his release, subject to an examination into his present mental condition. The Court of Appeals directed that the District Court should also determine upon the hearing whether Robinson was denied due process by the state court's failure to conduct a hearing upon his competence to stand trial; and, if it were found his rights had been violated in this respect, that Robinson 'should be ordered released, but such release may be delayed for a reasonable time * * * to permit the State of Illinois to grant Robinson a new trial.' 345 F.2d, at 698. We granted certiorari to resolve the difficult questions of state-federal relations posed by these rulings. 382 U.S. 890, 86 S.Ct. 182, 15 L.Ed.2d 148 (1965). We have concluded that Robinson was constitutionally entitled to a hearing on the issue of his competence to stand trial. Since we do not think there could be a meaningful hearing on that issue at this late date, we direct that the District Court, after affording the State another opportunity to put Robinson to trial on its charges within a reasonable time, order him discharged. Accordingly, we affirm the decision of the Court of Appeals in this respect, except insofar as it contemplated a hearing in the District Court on Robinson's competence. Our disposition makes it unnecessary to reach the other reasons given by the Court of Appeals for reversal.1
I.
2
The State concedes that the conviction of an accused person while he is legally incompetent violates due process, Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956), and that state procedures must be adequate to protect this right. It insists, however, that Robinson intelligently waived this issue by his failure to request a hearing on his competence at the trial; and further, that on the basis of the evidence before the trial judge no duty rested upon him to order a hearing sua sponte. A determination of these claims necessitates a detailed discussion of the conduct of the trial and the evidence touching upon the question of Robinson's competence at that time.
3
The uncontradicted testimony of four witnesses2 called by the defense revealed that Robinson had a long history of disturbed behavior. His mother testified that when he was between seven and eight years of age a brick dropped from a third floor hit Robinson on the head. 'He blacked out and the blood run from his head like a faucet.' Thereafter 'he acted a little peculiar.' The blow knocked him 'cockeyed' and his mother took him to a specialist 'to correct the crossness of his eyes.' He also suffered headaches during his childhood, apparently stemming from the same event. His conduct became noticeably erratic about 1946 or 1947 when he was visiting his mother on a furlough from the Army. While Robinson was sitting and talking with a guest, 'he jumped up and run to a bar and kicked a hole in the bar and he run up in the front.' His mother asked 'what on earth was wrong with him and he just stared at (her), and placed the floor with both hands in his pockets.' On other occasions he appeared in a daze, with a 'glare in his eyes,' and would not speak or respond to questions. In 1951, a few years after his discharge from the service, he 'lost his mind and was pacing the floor saying something was after him.' This incident occurred at the home of his aunt, Helen Calhoun. Disturbed by Robinson's conduct, Mrs. Calhoun called his mother about six o'clock in the morning, and she 'went to see about him.' Robinson tried to prevent Mrs. Calhoun from opening the door, saying 'that someone was going to shoot him or someone was going to come in after him.' His mother testified that, after gaining admittance, 'I went to him and hugged him to ask him what was wrong and he went to pushing me back, telling me to get back, somebody was going to shoot him, somebody was going to shoot him.' Upon being questioned as to Robinson's facial expression at the time, the mother stated that he 'had that starey look and seemed to be just a little foamy at the mouth.' A policeman was finally called. He put Robinson, his mother and aunt in a cab which drove them to Hines Hospital. On the way Robinson tried to jump from the cab, and upon arrival at the hospital he was so violent that he had to be strapped in a wheel chair. He then was taken in an ambulance to the County Psychopathic Hospital, from which he was transferred to the Kankakee State Hospital. The medical records there recited:
4
'The reason for admission: The patient was admitted to this hospital on the 5th day of June, 1952, from the Hines Hospital. Patient began presenting symptoms of mental illness about a year ago at which time he came to his mother's house. He requested money and when it was refused, he suddenly kicked a hole in her bar.
5
'Was drinking and went to the Psychopathic Hospital. He imagined he heard voices, voices of men and women and he also saw things. He saw a little bit of everything. He saw animals, snakes and elephants and this lasted for about two days. He went to Hines. They sent him to the Psychopathic Hospital. The voices threatened him. He imagined someone was outside with a pistol aimed at him. He was very, very scared and he tried to call the police and his aunt then called the police. He thought he was going to be harmed. And he says this all seems very foolish to him now. Patient is friendly and tries to cooperate.
6
'He went through an acute toxic episode from which he has some insight. He had been drinking heavily. I am wondering possibly he isn't schizophrenic. I think he has recovered from this condition. I have seen the wife and she is in a pathetic state. I have no objection to giving him a try.'
7
After his release from the state hospital Robinson's irrational episodes became more serious. His grandfather testified that while Robinson was working with him as a painter's assistant, 'all at once, he would come down (from the ladder) and walk on out and never say where he is going and whatnot and he would be out two or three hours, and at time he would be in a daze and when he comes out, he comes back just as fresh. He just says he didn't do anything. I noticed that he wasn't at all himself.' The grandfather also related that one night when Robinson was staying at his house Robinson and his wife had a 'ruckus,' which caused his wife to flee to the grandfather's bedroom. Robinson first tried to kick down the door. He then grabbed all of his wife's clothes from their room and threw them out in the yard, intending to set them on fire. Robinson got so unruly that the grandfather called the police to lock him up.
8
In 1953 Robinson, then separated from his wife, brought their 18-month-old son to Mrs. Calhoun's home and asked permission to stay there for a couple of days. She observed that he was highly nervous, prancing about and staring wildly. While she was at work the next day Robinson shot and killed his son and attempted suicide by shooting himself in the head. It appeared that after Robinson shot his son, he went to a nearby park and tried to take his life again by jumping into a lagoon. By his mother's description, he 'was wandering around' the park, and walked up to a policeman and 'asked him for a cigarett.' It was stipulated that he went to the South Park Station on March 10, 1953, and said that he wanted to confess to a crime. When he removed his hat the police saw that he had shot himself in the head. They took him to the hospital for treatment of hiw wound.
9
Robinson served almost four years in prison for killing his son, being released in September 1956. A few months thereafter he began to live with Flossie May Ward at her home. In the summer of 1957 or 1958 Robinson 'jumped on' his mother's brother-in-law and 'beat him up terrible.' She went to the police station and swore out a warrant for his arrest. She described his abnormalities and told the officers that Robinson 'seemed to have a disturbed mind.' She asked the police 'to pick him up so I can have him put away.' Later she went back to see why they had not taken him into custody because of 'the way he was fighting around in the streets, people were beating him up.' She made another complaint a month or so before Robinson killed Flossie May Ward. However, no warrant was ever served on him.
10
The killing occurred about 10:30 p.m. at a small barbecue house where Flossie May Ward worked. At that time there were 10 customers in the restaurant, six of them sitting at the counter. It appears from the record that Robinson entered the restaurant with a gun in his hand. As he approached the counter, Flossie May said, 'Don't start nothing tonight.' After staring at her for about a minute, he walked to the rear of the room and, with the use of his hand, leaped over the counter. He then rushed back toward the front of the restaurant, past two other employees working behind the counter, and fired once or twice at Flossie May. She jumped over the counter and ran out the front door with Robinson in pursuit. She was found dead on the sidewalk.3 Robinson never spoke a word during the three-to-four minute episode.
11
Subsequently Robinson went to the apartment of a friend, Mr. Moore, who summoned the police. When three officers, two in uniform, arrived, Robinson was standing in the hall approximately half way between the elevator and the apartment. Unaware of his identity, the officers walked past him and went to the door of the apartment. Mrs. Moore answered the door and told them that Robinson had left a short time earlier. As the officers turned around they saw Robinson still standing where they had first observed him. Robinson made no attempt to avoid being arrested. When asked his address he gave several evasive answers. He also denied knowing anything about the killing.4
12
Four defense witnesses expressed the opinion that Robinson was insane.5 In rebuttal the State introduced only a stipulation that Dr. William H. Haines, Director of the Behavior Clinic of the Criminal Court of Cook County would, if present, testify that in his opinion Robinson knew the nature of the charges against him and was able to cooperate with counsel when he examined him two or three months before trial. However, since the stipulation did not include a finding of sanity the prosecutor advised the court that 'we should have Dr. Haines' testimony as to his opinion whether this man is sane or insane. It is possible that the man might be insane and know the nature of the charge or be able to cooperate with his counsel. I think it should be in evidence, your Honor, that Dr. Haines' opinion is that this defendant was sane when he was examined.' However, the court told the prosecutor, 'You have enough in the record now. I don't think you need Dr. Haines.' In his summation defense counsel emphasized 'our defense is clear * * *. It is as to the sanity of the defendant at the time of the crime and also as to the present time.' The court, after closing argument by the defense, found Robinson guilty and sentenced him to prison for his natural life.
II.
13
The State insists that Robinson deliberately waived the defense of his competence to stand trial by failing to demand a sanity hearing as provided by Illinois law. But it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently 'waive' his right to have the court determine his capacity to stand trial. See Taylor v. United States, 282 F.2d 16, 23 (C.A.8th Cir. 1960). In any event, the record shows that counsel throughout the proceedings insisted that Robinson's present sanity was very much in issue. He made a point to elicit Mrs. Robinson's opinion of Robinson's 'present sanity.' And in his argument to the judge, he asserted that Robinson 'should be found not guilty and presently insane on the basis of the testimony that we have heard.' Moreover, the prosecutor himself suggested at trial that 'we should have Dr. Haines' testimony as to his opinion whether this man is sane or insane.' With this record we cannot say that Robinson waived the defense of incompetence to stand trial.6
14
We believe that the evidence introduced on Robinson's behalf entitled him to a hearing on this issue. The court's failure to make such inquiry thus deprived Robinson of his constitutional right to a fair trial.7 See Thomas v. Cunningham, 313 F.2d 934 (C.A.4th Cir. 1963). Illinois jealously guards this right. Where the evidence raises a 'bona fide doubt' as to a defendant's competence to stand trial, the judge on his own motion must impanel a jury and conduct a sanity hearing pursuant to Ill.Rev.Stat., c. 38, § 104—2 (1963). People v. Shrake, 25 Ill.2d 141, 182 N.E.2d 754 (1962). The Supreme Court of Illinois held that the evidence here was not sufficient to require a hearing in light of the mental alertness and understanding displayed in Robinson's 'colloquies' with the trial judge. 22 Ill.2d, at 168, 174 N.E.2d, at 823. But this reasoning offers no justification for ignoring the uncontradicted testimony of Robinson's history of pronounced irrational behavior. While Robinson's demeanor at trial might be relevant to the ultimate decision as to his sanity, it cannot be relied upon to dispense with a hearing on that very issue. Cf. Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956), reversing, 96 U.S.App.D.C. 117, 120, 223 F.2d 582, 585 (1955). Likewise, the stipulation of Dr. Haines' testimony was some evidence of Robinson's ability to assist in his defense. But, as the state prosecutor seemingly admitted, on the facts presented to the trial court it could not properly have been deemed dispositive on the issue of Robinson's competence.8
III.
15
Having determined that Robinson's constitutional rights were abridged by his failure to receive an adequate hearing on his competence to stand trial, we direct that the writ of habeas corpus must issue and Robinson be discharged, unless the State gives him a new trial within a reasonable time. This disposition accords with the procedure adopted in Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). We there determined that since the state court had applied an erroneous standard to judge the admissibility of a confession, the 'defendant should have the opportunity to have all issues which may be determinative of his guilt tried by a state judge or a state jury under appropriate state procedures, which conform to the requirements of the Fourteenth Amendment.' At 547— 548, 81 S.Ct. at 743. It has been pressed upon us that it would be sufficient for the state court to hold a limited hearing as to Robinson's mental competence at the time he was tried in 1959. If he were found competent, the judgment against him would stand. But we have previously emphasized the difficulty of retrospectively determining an accused's competence to stand trial. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). The jury would not be able to observe the subject of their inquiry, and expert witnesses would have to testify solely from information contained in the printed record. That Robinson's hearing would be held six years after the fact aggravates these difficulties. This need for concurrent determination distinguishes the present case from Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), where we held that on remand the State could discharge its constitutional obligation by giving the accused a separate hearing on the voluntariness of his confession.
16
If the State elects to retry Robinson, it will of course be open to him to raise the question of his competence to stand trial at that time and to request a special hearing thereon. In the event a sufficient doubt exists as to his present competence such a hearing must be held. If found competent to stand trial, Robinson would have the usual defenses available to an accused.
17
The case is remanded to the District Court for action consistent with this opinion. It is so ordered.
18
Case remanded to District Court with directions.
19
Mr. Justice HARLAN, whom Mr. Justice BLACK joins, dissenting.
20
The facts now canvassed by this Court to support its constitutional holding were fully sifted by the Illinois Supreme Court. I cannot agree that the state court's unanimous appraisal was erroneous and still less that it was error of constitutional proportions.
21
The Court appears to hold that a defendant's present incompetence may become sufficiently manifest during a trial that it denies him due process for the trial court to fail to conduct a hearing on that question on its own initiative. I do not dissent from this very general proposition, and I agree also that such an error is not 'waived' by failure to raise it and that it may entitle the defendant to a new trial without further proof. Waiver is not an apposite concept where we premise a defendant so deranged that he cannot oversee his lawyers. Since our further premise is that the trial judge should and could have avoided the error, a new trial seems not too drastic an exaction in view of the proof problems arising after a significant lapse of time.1 However, I do not believe the facts known to the trial judge in this case suggested Robinson's incompetence at time of trial with anything like the force necessary to make out a violation of due process in the failure to pursue the question.
22
Before turning to the facts, it is pertinent to consider the quality of the incompetence they are supposed to indicate. In federal courts—and I assume no more is asked of state courts—the test of incompetence that warrants postponing the trial is reasonably well settled. In language this Court adopted on the one occasion it faced the issue, 'the 'test must be whether * * * (the defendant) has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824. In short, emphasis is on capacity to consult with counsel and to comprehend the proceedings, and lower courts have recognized that this is by no means the same test as those which determine criminal responsibility at the the of the crime.2 The question, then, is not whether the facts before the trial judge suggested that Robinson's crime was an insane act but whether they suggested he was incompetent to stand trial.
23
The Court's affirmative answer seemingly rests on two kinds of evidence, principally adduced by Robinson to prove an insanity defense after the State rested its main case. First, there was evidence of a number of episodes of severe irrationality in Robinson's past. Among them were the slaying of his infant son, his attempted suicide, his efforts to burn his wife's clothing, his fits of temper and of abstraction, and his seven-week incarceration in a state hospital eight years before the trial. This evidence may be tempered by the State's counterarguments, for example, that Robinson was found guilty of his son's killing and that alcoholism may explain his hospitalization, but it cannot be written off entirely. The difficulty remains that while this testimony may suggest that Flossie May Ward's killing was just one more irrational act, I cannot say as a matter of common knowledge that it evidences incapacity during the trial. Indeed, the pattern revealed may best indicate that Robinson did function adequately during most of his life interrupted by periods of severe derangement that would have been quite apparent had they occurred at trial. The second class of data pertinent to the Court's theory, remarks by witnesses and counsel that Robinson was 'presently insane,' deserves little comment. I think it apparent that these statements were addressed to Robinson's responsibility for the killing, that is, his ability to do insane acts, and not to his general competency to stand trial.3
24
Whatever mild doubts this evidence may stir are surely allayed by positive indications of Robinson's competence at the trial. Foremost is his own behavior in the courtroom. The record reveals colloquies between Robinson and the trial judge which undoubtedly permitted a reasonable inference that Robinson was quite cognizant of the proceedings and able to assist counsel in his defense.4 Turning from lay impressions to those of an expert, it was stipulated at trial that a Dr. Haines, Director of the Behavior Clinic of the Criminal Court of Cook County, had examined Robinson several months earlier and, if called, would testify that Robinson 'knows the nature of the charge and is able to cooperate with his counsel.' The conclusive factor is that Robinson's own lawyers, the two men who apparently had the closest contact with the defendant during the proceedings, never suggested he was incompetent to stand trial and never moved to have him examined on incompetency grounds during trial;5 indeed, counsel's remarks to the jury seem best read as an affirmation of Robinson's present 'lucidity' which would be highly peculiar if Robinson had been unable to assist properly in his defense. See p. 386, n. 8, ante, of the Court's opinion.
25
Thus, I cannot agree with the Court that the requirements of due process were violated by the failure of the trial judge, who had opportunities for personal observation of the defendant that we do not possess to halt the trial and hold a competency hearing on his own motion.
26
Several other grounds have been urged as a basis for habeas corpus relief for Robinson. These other grunds are understandably not discussed in the Court's opinion, and I think it is sufficient for me to say I do not believe that they warrant further proceedings. In my view, the Court of Appeals should be reversed and the District Court's dismissal of the petition reinstated.
1
Nor do we pass on the contention that Robinson was denied his Sixth Amendment rights by the trial judge's refusal to issue summonses for material witnesses.
2
These witnesses were Miss Willie Ceola Peterson, Robinson's mother; Mr. William H. Langham, his grandfather; Mrs. Helen Calhoun, his aunt; and Mrs. Alice Moore, a family friend.
3
The Reverend Elmer Clemons was also shot and killed in the fracas. The indictment covering that offense was dismissed at the close of the trial in question.
4
According to the testimony of an arresting officer the following exchange took place:
'I asked him what his name was and he said, 'My name is Ted.' I said, 'What is your real name?' And he said, 'Theodore Robinson.' Then I asked him—I told him he was under arrest and he said, 'For what?' I said, 'Well, you are supposed to be wanted for killing two people on the south side.' I asked him did he know anything about it. He said, 'No, I don't know what you are talking about.' So then I asked him where he lived and he said, 'I don't live no place.'
'I said, 'What do you mean you don't live no place?' He said, 'That's what I said.'
'So then pretty soon asked him again and he said, 'Sometimes I stay with my mother.' And I said, 'Where does she live?' He said, 'Some address on East 44th Street.'
'So then we took him on to the 27th District and while we were making the arrest slip, asked him again his address and he said he lived at 7320 South Parkway. That's about all he said. He didn't know anything about any killing or anything.'
5
His mother stated: 'I think he is insane.' Mrs. Calhoun testified as follows:
'Q. Do you have an opinion as to whether or not presently he is sane or insane?
'A. He is sick. He is insane.
'Q. First of all, do you have an opinion?
'A. Yes.
'Q. What is your opinion as to his present sanity? * * *
'A. He is mentally sick.'
6
Although defense counsel phrased his questions and argument in terms of Robinson's present insanity, we interpret his language as necessarily placing in issue the question of Robinson's mental competence to stand trial. Counsel was simply borrowing the terminology of the relevant Illinois statutes and decisions. The state law in effect at the time of Robinson's trial differentiated between lack of criminal responsibility and competence to stand trial, but used 'insanity' to describe both concepts. Ill.Rev.Stat., c. 38, §§ 592, 593 (1963). The judges likewise phrased their decisions only in terms of sanity and insanity. See, e.g., People v. Baker, 26 Ill.2d 484, 187 N.W.2d 227 (1962). The statutory provisions and terminology in this field have now been clarified by the enactment of an article dealing with the 'competency of accused.' Ill.Rev.Stat., c. 38, §§ 104—1 to 104—3 (1963), as amended by the Code of Criminal Procedure of 1963. Even if counsel may also have meant to refer to the statutory provisions dealing with commitment for present insanity, Ill.Rev.Stat., c. 38, § 592 (1963), this fact would not affect the determination that counsel's words raised a question as to competence that the trial judge should have considered.
7
Moreover, as the Court of Appeals stressed, the trial judge did not give Robinson an opportunity to introduce expert testimony on the question of his sanity. The judge denied counsel's request for a continuance of several hours in order to secure the appearance of a psychiatrist from the Illinois Psychiatric Institute.
8
As defense counsel insisted in his closing argument:
'In this case, which is a very serious case, the defendant has been able to cooperate with counsel with some reservations. * * * However, I do not feel that this present * * * lucidity bears on the issue of his sanity at the time of the crime and his sanity at the present time. I think the words sanity and insanity, the words are legal terms. I think that presently Mr. Theodore Robinson is in a lucid interval. I believe that from the witness stand you have heard testimony to indicate and prove that Mr. Theodore Robinson is presently insane. * * *'
1
The constitutional violation alleged is the failure to make an inquiry. In the more usual case, the simple claim that a defendant was convicted while incompetent during the trial, there is of course no proof of a constitutional violation until that incompetence is established in appropriate proceedings.
2
See James v. Boles, 4 Cir., 339 F.2d 431; United States v. Kendrick, 4 Cir., 331 F.2d 110; Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725.
3
At the time Robinson's mother and Mrs. Calhoun made the statements noted in the Court's opinion, p. 383, n. 5, ante, they also stated Robinson did not know the difference between right and wrong. Counsel's statement, too, quoted by the Court at p. 386, n. 8, ante, was directed to acquittal, not postponement. See, n. 5, infra. Mrs. Moore, a family friend, responded to the question on Robinson's sanity by saying: 'When he is in those moods, I think he is insane; when he is in those moods, because he is terrible.'
4
The Illinois Supreme Court stated in its opinion: '(T)he record reflects several instances where defendant displayed his ability to assist in the conduct of his defense in a reasonable and rational manner. Typical instances of when defendant displayed mental alertness, as well as understanding and knowledge of the proceeding, appear in his remarks to the court as follows: 'Your honor, they were on the State's witness list and the State said they have several witnesses. They produced two. For what reason, I don't know, but I am on trial here and I would like to be given every consideration, and I would like that the court be adjourned until tomorrow morning—to give me time to confer with counsel for the calling of witnesses.' Again, when discussing witnesses with the court, defendant said: 'Well, the police are contending that the clothes they have found in Moore's apartment was mine. That is the reason at the beginning of trial, I asked the attorney to have a pre-trial preliminary to determine the admissibility and validity of the evidence that the State was intending to use against me." 22 Ill.2d, at 168, 174 N.E.2d, at 823.
5
The record in my view does not bear out any suggestion that Robinson's counsel apprised the trial judge that he believed Robinson incompetent to stand trial, even granting that 'insane' was a synonym for 'incompetent' under then-existing state law (pp. 384-385, n. 6, ante). Under Illinois law, as one would naturally expect, incompetence at the time of trial has been a ground not for acquitting the defendant but for postponing his trial; and nowhere in the record does Robinson's counsel even hint to the judge that he believes the trial should be deferred or abated because his client is not fit to continue. The ready explanation for counsel's references to 'present insanity,' apart from emphasizing Robinson's general lack of criminal responsibility, is that Illinois law provided that one acquitted on grounds of insanity at the time of the crime shall by the same verdict be found cured of or still afflicted with 'such insanity' and committed in the latter instance. Ill.Rev.Stat., c. 38, § 592 (1959).
| 34
|
383 U.S. 392
86 S.Ct. 852
15 L.Ed.2d 827
Warren W. PERRY, Petitioner,v.COMMERCE LOAN COMPANY.
No. 694.—October Term, 1965.
Argued Jan. 26, 1966.
Decided March 7, 1966.
Rehearing Denied May 2, 1966.
See 384 U.S. 934, 86 S.Ct. 1441.
Robert J. Harris, Cincinnati, Ohio, for petitioner.
R. Howard Smith, Newport, Ky., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
Perry, a furnace operator employed by Moore Lead Company, filed a petition in the District Court under Chapter XIII of the Bankruptcy Act, 52 Stat. 930 (1938), as amended, 11 U.S.C. §§ 1001 1086,1 requesting confirmation of his plan for an extension of time within which to pay his debts out of his future wages. In his plan he proposed to pay his debts of $1,412 in 28 equal monthly installments of $60 from his wages of $265 a month. On the hearing for confirmation of the plan, however, it appeared that Perry had previously filed a petition in straight bankruptcy and obtained a discharge therein in 1959, within six years of the filing of this proceeding. On motion of the respondent, Commerce Loan Company, the referee dismissed the plan on the ground that the previous bankruptcy was a bar thereto under the provisions of § 14(c) (5) of the Act.2 On review the District Court upheld the dismissal. The Court of Appeals affirmed. 340 F.2d 588. We granted certiorari, 382 U.S. 889, 86 S.Ct. 187, 15 L.Ed.2d 148, in view of a conflict on the point among the courts of appeals.3 We conclude that confirmations of wage-earner plans by way of extensions are not affected by § 14(c)(5), and, therefore, reverse the judgment below.
I.
2
Although statutory relief for the financially distressed wage earner had been available to some extent as early as the Bankruptcy Act of 1867, 14 Stat. 517, Congress found in its study prior to the 1938 revision of the bankruptcy laws that there were no effective provisions for the complete repayment of the wage earner's debts suited to his problems. H.R.Rep.No.1409, 75th Cong., 1st Sess., 53 (1937). For example, compositions under § 12 of the 1898 Act, 30 Stat. 549, were available to the wage earner, but the relief afforded was unsatisfactory. Section 12 proceedings, which were primarily adaptable for use by business entities, were disproportionately expensive in view of the small sums ordinarily involved in wage-earner cases; they lacked flexibility;and they did not provide for jurisdiction of the court subsequent to confirmation. Other provisions of the Act had similar disadvantages. Faced with inadequate relief under the federal bankruptcy laws and often with little protection from creditors under state law, the only course usually open to the wage-earning debtor was straight bankruptcy. In such proceedings, everyone lost the creditors by receiving a mere fraction of their claims, the debtor by bearing thereafter the stigma of having been adjudged a bankrupt. In designing a remedy for the dilemma facing a debtor seeking to repay, rather than avoid, his obligations, the Congress settled upon the wage-earner extension-of-time procedures of Chapter XIII. The chapter gave—and was intended to give—to the wage earner a reasonable opportunity to arrange installment payments to be made out of his future earnings. Congress clearly intended to encourage wage earners to pay their debts in full, rather than to go into straight bankruptcy or composition, by offering two inducements: (1) avoidance of an adjudication of bankruptcy with its attendant stigma; and, at the same time, (2) temporary freedom during the extension from garnishments, attachments and other harassment by creditors. H.R.Rep.No.1409, 75th Cong., 1st Sess., at 52—55.
3
History demonstrates that extension plans under Chapter XIII are fulfilling the purposes intended. The records of the Administrative Office of the United States Courts show that over the past 20 years more than 20% of all proceedings filed under the Bankruptcy Act by wage earners have been for plans under Chapter XIII, the overwhelming majority of these being for extension plans.4 Since many wage earners who go into bankruptcy do not proceed under Chapter XIII because they are unemployed (and consequently have no earnings to use for extension arrangements), have an inextricably large indebtedness, or are simply unaware of the existence of an alternative to straight bankruptcy, the 20% figure is even more significant. Moreover, large sums of money are annually returned to creditors under extension plans, the current rate being well over $26,000,000. As wage earners ordinarily have little or no assets available for distribution in straight bankruptcy, these sums represent settlements which the debtors would otherwise be unable to effect and the creditors unable to obtain. See Note, The Wage Earner Plan A Superior Alternative to Straight Bankruptcy, 9 Utah L.Rev. 730 (1965); Allgood, Operation of the Wage Earners' Plan in the Northern District of Alabama, 14 Rutgers L.Rev. 578 (1960).
4
In light of the proven advantages of extension plans, the Congress has re-expressed its legislative purpose in amendments to Chapter XIII adopted since the original enactment. A report to the House of Representatives expresses it in these words:
5
'(C)hapter XIII provides a highly desirable method for dealing with the financial difficulties of individuals. It creates an equitable and feasible way for the honest and conscientious debtor to pay off his debts rather than having them discharged in bankruptcy. The power of the court to change the amount and maturity of installment payments without affecting the aggregate amount of such payments makes chapter XIII particularly applicable to the present-day financial problems generated by heavy installment buying.' H.R.Rep.No.193, 86th Cong., 1st Sess., 2 (1959).
And similarly, the Senate report states:
6
'We think there can be no doubt * * * that a procedure by which a debtor who is financially involved and unable to meet his debts as they mature, over a period of time, works out of his involvement and pays his debts in full is good for his creditors and good for him.' S.Rep.No.179, 86th Cong., 1st Sess., 2 (1959), U.S.Code Cong. & Admin. News 1959, p. 1446.
7
It is with this underlying policy in mind that we turn to a consideration of the problem posed here, i.e., whether confirmation of an extension plan is barred by a discharge in bankruptcy obtained within the previous six years.
II.
8
Chapter XIII requires the confirmation of a wage-earner extension plan if 'the debtor has not been guilty of any of the acts or failed to perform any of the duties which would be a bar to the discharge of the bankrupt * * *.' § 656(a) (3). And Chapter III commands that a discharge of a bankrupt shall be granted unless the court is satisfied that the bankrupt has 'within six years prior to the date of the filing of the petition in bankruptcy * * * been granted a discharge, or had a composition or an arrangement by way of composition or a wage earner's plan by way of composition confirmed under this Act * * *.' § 14(c)(5). The 'discharge' of a debtor under a wage-earner plan shall issue after compliance with the provisions of the confirmed plan, § 660, c. XIII, 11 U.S.C. § 1060. If at the expiration of three years from the date of confirmation of the plan the debtor has not completed his payments in accordance with his plan the court may, after notice and hearing, discharge the debts and liabilities dischargeable under the plan, provided the court is satisfied that the debtor's failure to make all of his payments 'was due to circumstances for which he could not be justly held accountable.' § 661, c. XIII, 11 U.S.C. § 1061. And finally, § 602, of Chapter XIII5 declares that the provisions of Chapters I through VII of the Bankruptcy Act, insofar as they are not inconsistent or in conflict with the provisions of Chapter XIII, apply in proceedings thereunder.
9
We should note at the outset that in his present application for relief Perry did not file a straight, voluntary bankruptcy action in the District Court, nor 'a composition or an arrangement by way of composition or a wage earner's plan by way of composition.' He proposed to pay all his debts, secured and unsecured, and sought only an extension of time—28 months—in which to pay them in equal installments from his future wages. Ordinarily, a wage earner seeking to obtain the benefits of extension proceedings under Chapter XIII need only file a plan that meets the approval of the majority of his creditors, § 652, 11 U.S.C. § 1052, and is confirmed by the court; whereupon the plan becomes binding, § 657, 11 U.S.C. § 1057, and the appointed trustee commences collecting and disbursing to the creditors the periodic payments provided under the plan. Extension plans, therefore, differ materially from straight bankruptcy, arrangements under Chapters XI and XII, and wage-earner plans by way of composition, all of which contemplate only a partial payment of the wage earner's debts. Indeed, under an extension plan, the wage earner who makes the required payments will have paid his debts in full and will not need a discharge, even though the Act provides for a formal one. § 660.
10
In view of these considerations and the purposes of Chapter XIII as outlined above, we do not believe that the Congress intended to apply the six-year bar of § 14(c)(5) to the confirmation of wage-earner extension plans. The six-year bar was enacted 35 years prior to the adoption of Chapter XIII, 32 Stat. 797 (1903), at a time when no relief corresponding to extension plans existed under the Bankruptcy Act. The unmistakable purpose of the six-year provision was to prevent the creation of a class of habitual bankrupts—debtors who might repeatedly escape their obligations as frequently as they chose by going through repeated bankruptcy. See H.R.Rep.No.1698, 57th Cong., 1st Sess., 2 (1902); In re Thompson, D.C., 51 F.Supp. 12, 13 (1943). But an extension plan has no escape hatch for debtors, it is 'a method by which, without resorting to bankruptcy proceedings in the usual sense, a wage earner may meet the claims of creditors.' S.Rep.No.179, 86th Cong., 1st Sess., 2 (1959). To apply the six-year bar at the time of ruling on the confirmation of an extension plan would be both illogical and in head-on collision with the congressional purpose as announced in the adoption and design of extension plans under Chapter XIII.6 Even if a literal reading of these provisions suggested the application of § 14(c)(5) to extension plans, we would have little hesitation in construing the Act to give effect to the clear policy underlying Chapter XIII. As was said in United States v. American Trucking Assns., 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940):
11
'There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one 'plainly at variance with the policy of the legislation as a whole' this Court has followed that purpose, rather than the literal words.'
12
But such a literal reading is not apparent in this case. Section 656(a)(3) does not, on its face, state that a court may confirm an extension plan only if the debtor is eligible for a discharge in bankruptcy. Rather, the language of the section speaks, ambiguously, of 'guilty' acts and unfulfilled duties. There is, of course, no unfulfilled duty involved in § 14(c)(5). Moreover, a prior bankruptcy is hardly a 'guilty' act within the usual meaning of that word, and its use as a reference to § 14(c)(5) is strained indeed. In fact, the legislative history of § 14(c) lends some support to a view that a prior discharge is not a 'guilty' act. In 1903, when the forerunners of subdivisions (3) through (6) were originally added to § 14(c), the House report stated:
13
This amendment also provides four additional grounds for refusing a discharge in bankruptcy: (1) Obtaining property on credit on materially false statements; (2) making a fraudulent transfer of property; (3) having been granted or denied a discharge in bankruptcy within six years, and (4) having refused to obey the lawful orders of the court or having refused to answer material questions approved by the court. No person who has been guilty of any of these fraudulent acts should be discharged, and a person who has refused to obey the order of the court ought not to be discharged, and it is quite clear that no person should have the benefit of the act as a voluntary bankrupt oftener than once in six years.' H.R.Rep.No. 1698, 57th Cong., 1st Sess., 2 (1902). (Italics added.)
14
This language might be construed to set apart acts which are criminal or reprehensible in nature and to consider a prior bankruptcy to be something other than a 'guilty' act. But we need not, and do not, go so far as to place this interpretation on the words 'guilty acts.' It suffices that we find in them sufficient ambiguity to impel recourse to the legislative purposes, outlined above, underlying § 14(c)(5). And while the identical language of § 656(a)(3) has been a part of the Bankruptcy Act since 1898, as a restriction to confirmation of compositions under what is now § 366(3), 52 Stat. 911, as amended, 11 U.S.C. § 766(3) and § 472(3), 52 Stat. 923, as amended, 11 U.S.C. § 872(3), there is no indication that its enactment in Chapter XIII was intended to bar confirmation of wage-earner extensions. Indeed, it would seem that the absence of any legislative history bearing on the adoption of this provision in Chapter XIII indicates that its inclusion was a legislative oversight,7 at least insofar as it bears on wage-earners' extension plans.
15
This oversight is, of course, cured by the provisions of § 602, which further buttress our conclusion. That section directs that the provisions of Chapters I through VII, which include § 14(c)(5), are incorporated into Chapter XIII only 'insofar as they are not inconsistent or in conflict with the provisions of this chapter.' The rationale of § 14(c)(5)—the prevention of recurrent avoidance of debts—is so inconsistent with the aims of extension plans as to fall squarely within the exception of § 602.
16
It is claimed, however, that § 686(5) of Chapter XIII, 11 U.S.C. § 1086(5), indicates a contrary result. We think not. This provision, in setting the effective date of the chapter, provides that confirmations thereunder 'shall not be refused because of a discharge granted or a composition confirmed prior to the effective date of this amendatory Act.' It must be remembered that extension-plan relief of Chapter XIII was novel to the law of bankruptcy. However, both compositions and straight bankruptcies were old on the books. The Congress, we believe, was only making certain, insofar as extensions were concerned, that the old procedures would not affect the new. This would be consistent with the purpose of the Congress not to make § 14(c)(5) applicable to confirmations in extension-plan cases. Rather than making an illogical exemption from the six-year bar, given in cases where a discharge had been received before—but not after—the new Act, § 686(5) merely gave expansive effect to the congressional purpose by making it clear that the remedy afforded be available retroactively as well as prospectively.
17
We emphasize that our construction of the Act does not preclude application of § 14(c)(5) to confirmations of general arrangements under Chapter XI or to real property arrangements under Chapter XIII. It is true that restrictions identical in phrasing to § 656(a)(3) appear both in Chapter XI, § 366(3), and in Chapter XII, § 472(3). The relief afforded in those chapters, however, represents a wholly different statutory scheme from wage-earners' extensions, and the restrictive provisions are not therefore, in pari materia. Sections 366(3) and 472(3) neither impart to nor receive from § 656(a)(3) a meaningful effect. Nor does our construction imply an immunity from the six-year bar to those seeking confirmation of wage-earner compositions. A composition under Chapter XIII, unlike an extension, is closely akin to straight bankruptcy and to proceedings under Chapters XI and XII, for under such a plan the debtor is discharged from his debts and claims of the creditors are only partially paid. In re Jensen, 7 Cir., 200 F.2d 58 (1952), cert. denied, 345 U.S. 926, 73 S.Ct. 785, 97 L.Ed. 1357 (1953), but see In re Goldberg, 53 F.2d 454, 80 A.L.R. 399 (1931). It is both logical and consistent with the underlying purposes of § 14(c)(5) that confirmation of wage-earner compositions be barred by prior bankruptcy, since repeated use of such plans would in effect, provide an opportunity for abuse of the Act.
18
It has been argued that extension plans do not completely avoid the possibility of adjusting the wage earner's debts. It is true that § 660 provides for discharge after compliance with the provisions of a Chapter XIII plan. While this section applies to wage-earner compositions as well as to extensions, a 'discharge' thereunder has a wholly different impact where an extension is involved. In the latter case a discharge is little more than a mere formality. It is also claimed that § 661 presents a somewhat more troublesome objection. That section as we have noted may allow a wage earner to obtain a release from all dischargeable debts if, after notice and hearing, the court is satisfied that the failure of the debtor to comply with the plan was due to circumstances for which he could not be held justly accountable. However, we see no serious problems in this section. First, experience has shown that almost all plans approved under the Act envision repayment within three years. The problem, therefore, is not likely to arise. Second, there are adequate provisions for notice and hearing prior to a discharge under § 661. Objecting creditors may raise § 14(c)(5) as a bar to relief if and when the debtor seeks such relief. A request for relief under § 661 would, in effect, constitute an attempt to transpose an extension plan into a composition, and a grant of relief thereunder would, at that time, be tantamount to a confirmation of a composition. The six-year bar would, therefore, be operative in such a situation. In view of this, as well as the power of the court to make certain that the provisions of the chapter are not abused, we see no reason to allow this section alone to destroy the beneficial purposes of enactment.8
19
For the foregoing reasons, we conclude that petitioner's plan should have been confirmed.
20
Reversed and remanded.
21
Mr. Justice HARLAN, dissenting.
22
The result reached by the Court may well be desirable, but in my opinion it is one that cannot be attained under the present statute within the proper limits of the judicial function.
23
Chapter XIII of the Bankruptcy Act establishes procedures for the relief of wage earners who are unable to meet their debts as they mature. Two types of procedures are made available: extension plans under which the wage earner's debts are intended to be paid off in full over a period of time, and composition plans under which only a percentage of debts are recoverable. Referring to both type of plans, § 656 of the Bankruptcy Act, 11 U.S.C. § 1056 (1964 ed.), provides that 'a plan' shall not be confirmed if the debtor has 'been guilty of any of the acts or failed to perform any of the duties which would be a bar to the discharge of the bankrupt * * *.' To ascertain what would be a bar to the discharge of a bankrupt one must turn to § 14(c), 11 U.S.C. § 32(c) (1964 ed.), which provides, among other things, that no discharge may be granted if the bankrupt has been granted a previous discharge within six years. § 14(c)(5). It is undisputed that petitioner here was so discharged, and there is no question but that he would have been refused another discharge in bankruptcy at the time he applied for this extension plan. The statutory scheme this plainly seems to bar him from obtaining Chapter XIII relief as well.
24
The process by which the Court has undertaken to release the debtor from the impact of these straightforward statutory provisions seems to me wholly unavailing. The Court's major argument is built upon its reading of the word 'guilty' in § 656(a)(3). As already noted that section denies confirmation to an extension plan if the debtor has been 'guilty' of any act that would bar a discharge in bankruptcy. The argument is that since receiving a prior discharge is neither unlawful nor morally reprehensible one cannot be 'guilty' of it, and hence that the six-year 'discharge' provision cannot be a bar to a Chapter XIII extension plan.
25
This argument presupposes that the word 'guilty' was intentionally used in § 656 in a discriminating sense, that is, to distinguish among those acts catalogued in § 14(c) which under § 656 would bar confirmation of an extension plan. The fact of the matter is, however, that when Congress in 1938 enacted Chapter XIII, 52 Stat. 930—938, it took as its model the form and language of the prior bankruptcy act, more specifically § 12, subd. d, 30 Stat. 550, dealing with compositions.1 The 'guilty' phrase was appropriate in that 1898 statute because at that time the only bars to a discharge in the predecessor of § 14(c) were offenses punishable by imprisonment or fraudulent concealment. Section 14, subd. b, 30 Stat. 550. In 1903, Congress amended § 14, subd. b to include the six-year bar, 32 Stat. 797, and over the years other grounds for refusing confirmation have been added to that section. But the word 'guilty' was never changed, and has obviously remained in several chapters of the Act merely as a shorthand way of referring back to those items that preclude the granting of a discharge. Thus, Chapter XI of the Bankruptcy Act, which deals with arrangements, has almost an exact duplicate of § 656(a)(3) containing the same 'guilty' phraseology. § 366(3), 11 U.S.C. § 766(3) (1964 ed.). Chapter XII, which deals with real property arrangements, contains a similar provision. § 472(3), 11 U.S.C. § 872(3) (1964 ed.). And of course Chapter XIII, dealing with both compositions and extensions for wage earners, uses this language. These parallel provisions all derive from the same section framed in 1898.
26
This history and this parallelism indubitably demonstrate two things: first, that the Congress did not devise the 'guilty' terminology in 1938 as a means of making a subtle distinction between the morally reprehensible bars to bankruptcy contained in § 14(c) and the other bars there enumerated; and second, that the word 'guilty' means the same thing when applied to general arrangements in § 366, to real property arrangements in § 472, and to compositions and extensions in § 656. If the word 'guilty' excludes the six-year bar for extension plans, it is impossible to see what sort of statutory interpretative sleight of hand would save it for general arrangements, real property arrangements, and wage-earner composition plans. Moreover, it seems already accepted that as applied to Chapter XI arrangements, the 'guilty' provision does refer back to the six-year bar. See In re Jensen, 200 F.2d 58; 9 Collier, Bankruptcy 9.19, at 310—311 (14th ed 1964); Kennedy, Hospitality for Repeaters Under the Bankruptcy Act, 68 Com.L.J. 117, 119—120 (1963). The same would appear to be true of the meaning of 'guilty' in Chapter XII. See 9 Collier, supra, 9.07, at 1146. And the Court in its present opinion appears to concede that when applied to compositions, § 656 is somehow transformed to include the six-year bar.
27
In short, construing 'guilty' to refer only to 'reprehensible' aspects of § 14(c) has no basis in legislative history, and requires a strained attempt to distinguish other applications of the identical section and of parallel sections which concededly are applied more generally. Because of its ramifications, this construction may do serious harm to the administration of Chapter XIII compositions, Chapter XII real property arrangements, and Chapter XI arrangements.
28
The Court also advances another argument in support of its conclusion that confirmation of this extension plan was not barred by virtue of §§ 656 and 14(c). This argument rests essentially on § 602 of the Bankruptcy Act, 11 U.S.C. § 1002 (1964 ed.). Section 602 provides that the provisions of Chapters I through VII shall apply to Chapter XIII 'insofar as they are not inconsistent or in conflict with the provisions of this chapter * * *.' It seems to be said that the six-year bar is inconsistent with the provisions of Chapter XIII because the extension plan is designed to give wage earners relief, and the six-year bar would preclude some such people from receiving that relief without good reason.
29
This argument likewise does not withstand analysis. To be sure the six-year bar makes it impossible for certain wage earners to get relief by way of extension plans, but so do all the other restrictions on this form of relief. Nobody would suggest that it is 'inconsistent' with Chapter XIII to withhold extension-plan relief from those who engage in fraud on the ground that such a restriction cuts down the number of people who can take advantage of Chapter XIII. Section 656 clearly does establish restrictions on the class of people to whom relief is available; the question before us is whether the six-year bar is such a limitation; citation of § 602 is conclusory only, and makes no positive contribution to a meaningful analysis.
30
My conclusion that the statute should be read literally to preclude the confirmation of an extension plan if the applicant has been granted a discharge within the previous six years is reinforced by § 686(5) of Chapter XIII, 11 U.S.C. § 1086(5) (1964 ed.). Section 686(5) in its entirety declares that 'confirmation of a plan under this chapter shall not be refused because of a discharge granted or a composition confirmed prior to the effective date of this amendatory Act.' The inclusion of this provision indicates quite clearly that Congress did believe that a prior discharge would be a bar to a Chapter XIII plan, and that it decided to remove that restriction only for discharges granted before September 22, 1938, the effective date of the statute in question. See 10 Collier, supra, 33.05, at 477. Such a provision is perfectly understandable. Before the enactment of the extension-plan amendment, wage earners who sought a bankruptcy remedy could obtain only a discharge through straight bankruptcy or composition. There would be no reason to preclude wage earners who availed themselves of such relief prior to September 1938 from obtaining a more favorable extension plan subsequently. On the other hand, after enactment of Chapter XIII, wage earners would have the opportunity to apply for an extension plan. It is not difficult to understand why Congress should have refused to permit wage earners who chose a discharge in bankruptcy rather than an extension plan a second opportunity, within six years, to receive statutory relief. I am frank to say that I am unable to perceive the basis for the Court's contrary explanation of this provision.
31
The short of the matter is that the Court's arguments do not support the conclusion it reaches. The conclusion is of course supportable as a legislative judgment, even though arguments can be made for both sides. Thus, it might be argued for the six-year bar in a Chapter XIII context somewhat as follows: the wage-earner extension plan is a new and very advantageous procedure for the debtor, but it is a burden on the courts. It is also a constraint on creditors who will be delayed in collecting, will be precluded from garnishing, and may not receive full repayment if the debtor obtains a discharge under § 661 of the Act, 11 U.S.C. § 1061 (1964 ed.). It is therefore reasonable to limit the availability of this kind of relief to those wage earners who have not had the advantage of a discharge in bankruptcy in the previous six years. Furthermore, it is certainly arguable that the six-year bar encourages wage earners to make use of the Chapter XIII procedure. With the prior-discharge bar eliminated, a debtor might eschew an extension plan and decide instead to go through straight bankruptcy first, waiting a few months until the going once again 'gets tough' to take advantage of the extension plan.
32
I venture considerations such as these not as overcoming the countervailing ones relied on by the Court, and heretofore espoused by others,2 but simply to point up the fact that this is not one of those cases where seemingly straightforward statutory language must yield its literal meaning to a contrary congressional intent. What we have here are but two contrasting legislative policies, wherein the Court's duty is to take the statute as it is presently plainly written.
33
I would affirm the judgment of the Court of Appeals.
1
All United States Code citations herein refer to the 1964 edition.
2
52 Stat. 850 (1938), as amended, 11 U.S.C. § 32(c)(5):
'(c) The court shall grant the discharge (in bankruptcy) unless satisfied that the bankrupt has * * * (5) in a proceeding under this title commenced within six years prior to the date of the filing of the petition in bankruptcy * * * been granted a discharge, or had a composition or an arrangement by way of composition or a wage earner's plan by way of composition confirmed under this title * * *.' 11 U.S.C. § 32(c)(5).
3
Compare In re Schlageter, 319 F.2d 821 (C.A.3d Cir.1963), and Perry v. Commerce Loan Co., 340 F.2d 588, with Edins v. Helzberg's Diamond Shops, Inc., 315 F.2d 223 (C.A.10th Cir.1963), and In re Mahaley, 187 F.Supp. 229 (D.C.S.D.Cal.1960). See also In re Mayorga, 355 F.2d 89 (C.A.9th Cir.1966).
4
Chapter XIII also provides for wage-earner plans by way of composition. Compositions under that chapter, however, are almost insignificant in the operation of wage-earner plans because most creditors will not give the necessary approval. The latest published statistics show that 95% of the funds paid to creditors under Chapter XIII proceedings derive from extensions rather than compositions. Administrative Office of the United States Courts, Tables of Bankruptcy Statistics, Table F 11 (1964) (by computation).
5
11 U.S.C. § 1002: 'The provisions of chapters 1—7 of this title shall, insofar as they are not inconsistent or in conflict with the provisions of this chapter, apply in proceedings under this chapter * * *.'
6
Such a collision undoubtedly affects the functioning of the Act. The Administrative Office of the United States Courts reports that a 'pronounced drop in Chapter XIII filings' has been noted in the districts in the Sixth Circuit as a result of the holding in Perry. Administrative Office of the United States Courts, Memorandum for the Committee on Bankruptcy Administration of the Judicial Conference of the United States, Report on the Use of Chapter XIII, p. 2 (June 22, 1965).
7
This is not the only example of drafting oversights in the Act. Although § 14(c)(5) was amended in 1938 to include a reference to wage-earner compositions, the provision in that section relating to confirmation of a composition was not deleted even though § 12 of the 1898 Act, 30 Stat. 549, under which such a composition might have been confirmed, was repealed in the same enactment.
8
We note that the National Bankruptcy Conference has proposed amendments to the Act which are intended to clarify the interrelationship of §§ 14(c)(5), 656(a)(3), and 661. The proposed clarification is in accord with our construction of the Act. See H.R. 20, 89th Cong., 1st Sess. (1965). The Judicial Conference, upon request of the Congress, has submitted its views approving the bill. Letter from the Director of the Administrative Office of the United States Courts to the Chairman of the Committee on the Judiciary, House of Representatives (September 29, 1965). See also Report of the Proceedings of the Judicial Conference of the United States, at 68 (September 22—23, 1965).
1
'The judge shall confirm a composition if satisfied that (1) it is for the best interests of the creditors; (2) the bankrupt has not been guilty of any of the acts or failed to perform any of the duties which would be a bar to his discharge * * *.' § 12, subd. d, 30 Stat. 550.
2
See the proposed amendments of the Bankruptcy Act by the National Bankruptcy Conference, note 8, ante, p. 404; Kennedy, Hospitality for Repeaters Under the Bankruptcy Act, 68 Com.L.J. 117 (1963).
| 78
|
383 U.S. 363
86 S.Ct. 845
15 L.Ed.2d 807
Dora SUROWITZ, etc., Petitioner,v.HILTON HOTELS CORPORATION et al.
No. 161.
Argued Jan. 20, 1966.
Decided March 7, 1966.
Rehearing Denied April 18, 1966.
See 384 U.S. 915, 86 S.Ct. 1333.
Richard F. Watt, Chicago, Ill., for petitioner.
Samuel W. Block, Chicago, Ill., for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
Petitioner, Dora Surowitz, a stockholder in Hilton Hotels Corporation, brought this action in a United States District Court on behalf of herself and other stockholders charging that the officers and directors of the corporation had defrauded it of several million dollars by illegal devices and schemes designed to cheat the corporation and enrich the individual defendants. The acts charged, if true, would constitute frauds of the grossest kind against the corporation, and would be in violation of the Securities Act of 1933,1 the Securities Exchange Act of 1934,2 and the Delaware General Corporation Law.3 Summarily stated, the detailed complaint, which takes up over 60 printed pages, charges first that defendants conceived and carried out a deceptive plan under which the Hilton Hotels Corporation through a formal 'offer' mailed to all the stockholders, purchased from them some 300,000 shares of its outstanding commmon stock, that these defendants manipulated the stock's market price to an artificially high level and then at this inflated price sold some 100,000 shares of their own stock to the corporation, and that the effect of this offer and purchase was to reduce the corporation's working capital more than $8,000,000 at a time when its financial condition was weak, and the funds were badly needed to run the corporation's business. The second deceptive scheme charged in the complaint was that the same defendants, all of whom were stockholders of the Hilton Credit Corporation, caused the Hilton Hotels Corporation to purchase, also at an artificially high price more than a million shares of Hilton Credit Corporation stock, paying about $3,441,000 for it, of which over $2,000,000 was personally received by the defendants. The complaint was signed by counsel for Mrs. Surowitz in compliance with Rule 11 of the Federal Rules of Civil Procedure which provides that 'The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.' Also pursuant to Rule 23(b) of the Federal Rules, the complaint was verified by Mrs. Surowitz, the petitioner, who stated that some of the allegations in the complaint were true and that she 'on information and belief' thought that all the other allegations were true.
2
So far as the language of the complaint and of Mrs. Surowitz's verification was concerned, both were in strict compliance with the provisions of Rule 23(b) which states that a shareholder's complaint in a secondary action must contain certain averments and be verified by the plaintiff.4 Notwithstanding the sufficiency of the complaint and verification under Rule 23(b), however, the court, without requiring defendants to file an answer and over petitioner's protest, granted defendants' motion to require Mrs. Surowitz to submit herself to an oral examination by the defendants' counsel. In this examination Mrs. Surowitz showed in her answers to questions that she did not understand the complaint at all, that she could not explain the statements made in the complaint, that she had a very small degree of knowledge as to what the lawsuit was about, that she did not know any of the defendants by name, that she did not know the nature of their alleged misconduct, and in fact that in signing the verification she had merely relied on what her son-in-law had explained to her about the facts in the case. On the basis of this examination, defendants moved to dismiss the complaint, alleging that '1. It is a sham pleading, and 2. Plaintiff, Dora Surowitz, is not a proper party plaintiff. * * *' In response, Mrs. Surowitz's lawyer, in an effort to cure whatever infirmity the court might possibly find in Mrs. Surowitz's verification in light of her deposition, filed two affidavits which shed much additional light on an extensive investigation which had preceded the filing of the complaint. Despite these affidavits the District Judge dismissed the case holding that Mrs. Surowitz's affidavit was 'false,' that being wholly false it was a nullity, that being a nullity it was as though no affidavit had been made in compliance with Rule 23, that being false the affidavit was a 'sham' and Rule 23(b) required that he dismiss her case, and he did so, 'with prejudice.'
3
The Court of Appeals affirmed the District Court's dismissal, saying in part:
4
'We can only conclude, as did the court below, that plaintiff's verification of the complaint was false because she swore to the verity of alleged facts of which she was wholly ignorant.' 342 F.2d, at 606.
5
The Court of Appeals reached its conclusion that the case must be dismissed under Rule 23(b) and Rule 41(b) despite the fact that the charges made against the defendants were viewed as very serious and grave charges of fraud and that 'many of the material allegations of the complaint are obviously true and cannot be refuted.' 342 F.2d, at 607. We cannot agree with either of the courts below and reverse their judgments. We do not find it necessary in reversing, however, to consider all the numerous arguments made by respondents based on the origin, history and utility of Rule 23, and of derivative causes of action and class suits. No matter how much weight we give to the function of the Rule and of class action proceedings in protecting corporate management against so-called 'nuisance' or 'strike suits,' we hold that the Rule cannot justify dismissal of this case on the record shown here.
6
At the time the District Court dismissed and the Court of Appeals approved, there were pending before those courts not merely the complaint, the verified statements by counsel and by Mrs. Surowitz, and the depositions of Mrs. Surowitz, but, as noted above, two affidavits, one signed by Mrs. Surowitz's attorney in this case, Mr. Walter J. Rockler, and the other signed by her son-in-law, Mr. Irving Brilliant, had been submitted in response to the defendants' motion that the complaint be dismissed. These affidavits, as well as Mrs. Surowitz's deposition, are a part of the record before us here and we shall now state the facts as they are illuminated by these affidavits.
7
Mrs. Surowitz, the plaintiff and petitioner here, is a Polish immigrant with a very limited English vocabulary and practically no formal education. For many years she has worked as a seamstress in New York where by reason of frugality she saved enough money to buy some thousands of dollars worth of stocks. She was of course not able to select stocks for herself with any degree of assurance of their value. Under these circumstances she had to receive advice and counsel and quite naturally she went to her son-in-law, Irving Brilliant. Mr. Brilliant had graduated from the Harvard Law School, possessed a master's degree in economics from Columbia University, was a professional investment advisor, and in addition to his degrees and his financial acumen, he wore a Phi Beta Kappa key. In 1957, six years before this litigation began, he bought some stock for his mother-in-law in the Hilton Hotels Corporation, paying a little more than $2,000 of her own money for it. He evidently had confidence in that corporation because by 1960 he had purchased for his wife, his deceased mother's estate, a trust fund created for his children, and Mrs. Surowitz some 2,350 shares of the corporation's common stock, at a cost of about $45,000 in addition to one of the corporation's $10,000 debentures.
8
About December 1962, Mrs. Surowitz received through the mails a notice from the Hilton Hotels Corporation announcing its plan to purchase a large amount of its own stock. Because she wanted it explained to her, she took the notice to Mr. Brilliant. Apparently disturbed by it, he straightway set out to make an investigation. Shortly thereafter he went to Chicago, Illinois, where Hilton Hotels has its home office and talked the matter over with Mr. Rockler. Mr. Brilliant and Mr. Rockler had been friends for many years, apparently ever since both of them served as a part of the legal staff representing the United States in the Nuremberg trials. The two decided to investigate further, and for a number of months both pursued whatever avenues of information that were open to them. By August of 1963 on the basis of their investigation, both of them had reached the conclusion that the time had come to do something about the matter. In the meantime the value of the corporation's stock had declined steadily, and in August the corporation failed to pay its usual dividend. In October, while a complaint was being prepared charging defendants with fraud and multiple violations of the federal securities acts and state law, Mr. Rockler met with defendants' lawyers. This conference, instead of producing an understanding merely provided Mr. Brilliant and Mr. Rockler with information, not previously available to them, which increased their grave suspicions about the corporation's stock purchase and its management. For instance it was learned at this meeting that at the time of the stock purchase the president and chairman of the board of Hilton Hotels Corporation had purchased for an unusually high price over 100,000 shares of the corporation's stock from several trusts established by a vice president and director of the corporation. Finally, in December, or almost exactly one year after the corporation had submitted its questionable offer to purchase stock from its shareholders, this complaint was filed charging the defendants with creating and participating in a fraudulent scheme which had taken millions of dollars out of the corporation's treasury and transferred the money to the defendants' pockets.
9
Soon after these investigations began Rockler prepared a letter for Mrs. Surowitz to send to the corporation protesting the alleged fraudulent scheme. Mr. Brilliant, her son-in-law, took the communication to Mrs. Surowitz, explained it to her, and she signed it. Later, in August 1963, when the corporation declined to pay its dividend, Mrs. Surowitz, who had purchased the stock for the specific purpose of gaining a source of income, was sufficiently disturbed to seek Mr. Brilliant's counsel. He explained to her that he and Mr. Rockler were of the opinion that the corporation's management had wrongfully damaged the corporation, and together at that time Mrs. Surowitz and her son-in-law discussed the matter of her bringing this suit. When, on the basis of this conversation, Mrs. Surowitz stated that she agreed that suit be filed in her name, Mr. Rockler prepared a formal complaint which he mailed to Mr. Brilliant. Mr. Brilliant then, according to both his affidavit and Mrs. Surowitz's testimony, read and explained the complaint to his mother-in-law before she verified it. Her limited education and her small knowledge about any of the English language, except the most ordinarily used words, probably is sufficient guarantee that the courts below were right in finding that she did not understand any of the legal relationships or comprehend any of the business transactions described in the complaint. She did know, however, that she had put over $2,000 of her hard-earned money into Hilton Hotels stock, that she was not getting her dividends, and that her son-in-law who had looked into the matter thought that something was wrong. She also knew that her son-in-law was qualified to help her and she trusted him. It is difficult to believe that anyone could be shocked or harmed in any way when, in the light of all these circumstances, Mrs. Surowitz verified the complaint, not on the basis of her own knowledge and understanding, but in the faith that her son-in-law had correctly advised her either that the statements in the complaint were true or to the best of his knowledge he believed them to be true.
10
We assume it may be possible that there can be circumstances under which a district court could stop all proceedings in a derivative cause of action, relieve the defendants from filing an answer to charges of fraud, and conduct a pre-trial investigation to determine whether the plaintiff had falsely sworn either that the facts alleged in the complaint were true or that he had information which led him to believe they were true. And conceivably such a pre-trial investigation might possibly reveal facts surrounding the verification of the complaint which could justify dismissal of the complaint with prejudice. However, here we need not consider the question of whether, if ever, Federal Rule 23(b) might call for such summary action. Certainly it cannot justify the court's summary dismissal in this case. Rule 23(b) was not written in order to bar derivative suits. Unquestionably it was originally adopted and has served since in part as a means to discourage 'strike suits' by people who might be interested in getting quick dollars by making charges without regard to their truth so as to coerce corporate managers to settle worthless claims in order to get rid of them. On the other hand, however, derivative suits have played a rather important role in protecting shareholders of corporations from the designing schemes and wiles of insiders who are willing to betray their company's interests in order to enrich themselves. And it is not easy to conceive of anyone more in need of protection against such schemes than little investors like Mrs. Surowitz.
11
When the record of this case is reviewed in the light of the purpose of Rule 23(b)'s verification requirement, there emerges the plain, inescapable fact that this is not a strike suit or anything akin to it. Mrs. Surowitz was not interested in anything but her own investment made with her own money. Moreover, there is not one iota of evidence that Mr. Brilliant, her son-in-law and counselor, sought to do the corporation any injury in this litigation. In fact his purchases for the benefit of his family of more than $50,000 of securities in the corporation, including a $10,000 debenture, all made years before this suit was brought, manifest confidence in the corporation, not a desire to harm it in any way. The Court of Appeals in affirming the District Court's dismissal, however, indicated that whether Mrs. Surowitz and her counselors acted in good faith and whether the charges they made were truthful were irrelevant once Mrs. Surowitz demonstrated in her oral testimony that she knew nothing about the content of the suit. That court said:
12
'Those affidavits reveal that substantial and diligent investigation by Brilliant, Rockler and others preceded the filing of this complaint. * * * Neither affidavit, however, does anything, if anything could be done, to offset plaintiff's positive disavowal of any relevant knowledge or information other than the fact of her stock ownership.' 342 F.2d, at 607.
13
In fact the opinion of the Court of Appeals indicates in several places that a woman like Mrs. Surowitz, who is uneducated generally and illiterate in economic matters, could never under any circumstances be a plaintiff in a derivative suit brought in the federal courts to protect her stock interests.5
14
We cannot construe Rule 23 or any other one of the Federal Rules as compelling courts to summarily dismiss, without any answer or argument at all, cases like this where grave charges of fraud are shown by the record to be based on reasonable beliefs growing out of careful investigation. The basic purpose of the Federal Rules is to administer justice through fair trials, not through summary dismissals as necessary as they may be on occasion. These rules were designed in large part to get away from some of the old procedural booby traps which common-law pleaders could set to prevent unsophisticated litigants from ever having their day in court. If rules of procedure work as they should in an honest and fair judicial system, they not only permit, but should as nearly as possible guarantee that bona fide complaints be carried to an adjudication on the merits. Rule 23(b), like the other civil rules, was written to further, not defeat the ends of justice. The serious fraud charged here, which of course has not been proven, is clearly in that class of deceitful conduct which the federal securities laws were largely passed to prohibit and protect against. There is, moreover, not one word or one line of actual evidence in this record indicating that there has been any collusive conduct or trickery by those who filed this suit except through intimations and insinuations without any support from anything any witness has said. The dismissal of this case was error. It has now been practically three years since the complaint was filed and as yet none of the defendants have even been compelled to admit or deny the wrongdoings charged. They should be. The cause is reversed and remanded to the District Court for trial on the merits.
15
Reversed and remanded.
16
Mr. Justice FORTAS took no part in the decision of this case.
17
THE CHIEF JUSTICE took no part in the consideration or decision of this case.
18
Mr. Justice HARLAN, concurring.
19
Rule 23(b) directs that in a derivative suit 'the complaint shall be verified by oath' but nothing dictates that the verification be that of the plaintiff shareholder. See Bosc v. 39 Broadway, Inc., D.C., 80 F.Supp. 825. In the present circumstances, it seems to me the affidavit of Walter J. Rockler, counsel for Mrs. Surowitz, amounts to an adequate verification by counsel, which I think is permitted by a reasonable interpretation of the Rule at least in cases such as this. On this rpemise, I agree with the decision of the Court.
1
48 Stat. 74, as amended, 15 U.S.C. § 77a et seq. (1964 ed.).
2
48 Stat. 881, as amended, 15 U.S.C. § 78a et seq. (1964 ed.).
3
Del.Code Ann. Tit. 8, § 101 et seq. (1953 ed.).
4
'(b) Secondary Action by Shareholders. In an action brought to enforce a secondary right on the part of one or more shareholders in an association, incorporated or unincorporated, because the association refuses to enforce rights which may properly be asserted by it, the complaint shall be verified by oath and shall aver (1) that the plaintiff was a shareholder at the time of the transaction of which he complains or that his share thereafter devolved on him by operation of law and (2) that the action is not a collusive one to confer on a court of the United States jurisdiction of any action of which it would not otherwise have jurisdiction. The complaint shall also set forth with particularity the efforts of the plaintiff to secure from the managing directors or trustees and, if necessary, from the shareholders such action as he desires, and the reasons for his failure to obtain such action or the reasons for not making such effort.'
5
Consider, for example, these three excerpts taken from separate paragraphs in the Court of Appeals' opinion:
'We have considered all arguments advanced by the plaintiff. We have considered the record in the light of plaintiff's limited grasp of the English language and the intricacies of corporate finance. We have considered the peculiar position of a plaintiff in a suit such as this as, principally, the instrument through which the judicial machinery is set in motion. It is not unreasonable to state as a minimum requirement that the plaintiff have general knowledge of the acts of which she complains and the connection of the defendants to those acts which she alleges. We conclude that any lesser requirement would make the verification provision farcical.
'But if the verification provision of the Rule is to have any real meaning, it requires that a plaintiff must have knowledge of his own position and relationship to the suit, of the official identity of the parties against whom the suit is brought and general knowledge of the wrongful acts which he alleges as a foundation for his complaint.
'We think the court below correctly held that a pleading governed by Rule 23(b) is sham when it clearly appears that the ostensible verification is a mere formality without knowledgeable or informative comprehension in the party plaintiff whose verification gives it the breath of life. That breath is not instilled by the reading of words to that plaintiff which she obviously did not understand.' 342 F.2d, at 608, 606, and 607—608.
| 89
|
383 U.S. 301
86 S.Ct. 803
15 L.Ed.2d 769
STATE OF SOUTH CAROLINA, Plaintiff,v.Nicholas deB. KATZENBACH, Attorney General of the United States.
No. 22, Original.
Argued Jan. 17, 18, 1966.
Decided March 7, 1966.
[Syllabus from pages 301-305 intentionally omitted]
David W. Robinson, II, and Daniel R. McLeod, Columbia, S.C., for plaintiff.
Atty. Gen. Nicholas deB. Katzenbach, defendant, pro se.
R. D. McIlwaine, III, Richmond, Va., for Commonwealth of Virginia, as amicus curiae.
Jack P. F. Gremillion, Baton Rouge, La., for State of Louisiana, as amicus curiae.
Francis J. Mizell, Jr., and Richmond M. Flowers, Montgomery, Ala., for State of Alabama, as amicus curiae.
Joe T. Patterson and Charles Clark, Jackson, Miss., for State of Mississippi, as amicus curiae.
E. Freeman Leverett, Atlanta, Ga., for State of Georgia, as amicus curiae.
Levin H. Campbell, Boston, Mass., and Archibald Cox, Washington, D.C., for Commonwealth of Massachusetts, as amicus curiae.
Alan B. Handler, Newark, for State of New Jersey, as amicus curiae.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
By leave of the Court, 382 U.S. 898, 86 S.Ct. 229, South Carolina has filed a bill of complaint, seeking a declaration that selected provisions of the Voting Rights Act of 19651 violate the Federal Constitution, and asking for an injunction against enforcement of these provisions by the Attorney General. Original jurisdiction is founded on the presence of a controversy between a State and a citizen of another State under Art. III, § 2, of the Constitution. See State of Georgia v. Pennsylvania, R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051. Because no issues of fact were raised in the complaint, and because of South Carolina's desire to obtain a ruling prior to its primary elections in June 1966, we dispensed with appointment of a special master and expedited our hearing of the case.
2
Recognizing that the questions presented were of urgent concern to the entire country, we invited all of the States to participate in this proceeding as friends of the Court. A majority responded by submitting or joining in briefs on the merits, some supporting South Carolina and others the Attorney General.2 Seven of these States also requested and received permission to argue the case orally at our hearing. Without exception, despite the emotional overtones of the proceeding, the briefs and oral arguments were temperate, lawyerlike and constructive. All viewpoints on the issues have been fully developed, and this additional assistance has been most helpful to the Court.
3
The Voting Rights Act was designed by Congress to banish the blight of racial discrimination in voting, which has infected the electoral process in parts of our country for nearly a century. The Act creates stringent new remedies for voting discrimination where it persists on a pervasive scale, and in addition the statute strengthens existing remedies for pockets of voting discrimination elsewhere in the country. Congress assumed the power to prescribe these remedies from § 2 of the Fifteenth Amendment, which authorizes the National Legislature to effectuate by 'appropriate' measures the constitutional prohibition against racial discrimination in voting. We hold that the sections of the Act which are properly before us are an appropriate means for carrying out Congress' constitutional responsibilities and are consonant with all other provisions of the Constitution. We therefore deny South Carolina's request that enforcement of these sections of the Act be enjoined.
I.
4
The constitutional propriety of the Voting Rights Act of 1965 must be judged with reference to the historical experience which it reflects. Before enacting the measure, Congress explored with great care the problem of racial discrimination in voting. The House and Senate Committees on the Judiciary each held hearings for nine days and received testimony from a total of 67 witnesses.3 More than three full days were consumed discussing the bill on the floor of the House, while the debate in the Senate covered 26 days in all.4 At the close of these deliberations, the verdict of both chambers was overwhelming. The House approved the bill by a vote of 328—74, and the measure passed the Senate by a margin of 79—18.
5
Two points emerge vividly from the voluminous legislative history of the Act contained in the committee hearings and floor debates. First: Congress felt itself confronted by an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution. Seond: Congress concluded that the unsuccessful remedies which it had prescribed in the past would have to be replaced by sterner and more elaborate measures in order to satisfy the clear commands of the Fifteenth Amendment. We pause here to summarize the majority reports of the House and Senate Committees, which document in considerable detail the factual basis for these reactions by Congress.5 See H.R.Rep. No. 439, 89th Cong., 1st Sess., 8—16 (hereinafter cited as House Report); S.Rep.No. 162, pt. 3, 89th Cong., 1st Sess., 3—16, U.S. Code Congressional and Administrative News, p. 2437 (hereinafter cited as Senate Report).
6
The Fifteenth Amendment to the Constitution was ratified in 1870. Promptly thereafter Congress passed the Enforcement Act of 1870,6 which made it a crime for public officers and private persons to obstruct exercise of the right to vote. The statute was amended in the following year7 to provide for detailed federal supervision of the electoral process, from registration to the certification of returns. As the years passed and fervor for racial equality waned, enforcement of the laws became spotty and ineffective, and most of their provisions were repealed in 1894.8 The remnants have had little significance in the recently renewed battle against voting discrimination.
7
Meanwhile, beginning in 1890, the States of Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia enacted tests still in use which were specifically designed to prevent Negroes from voting.9 Typically, they made the ability to read and write a registration qualification and also required completion of a registration form. These laws were based on the fact that as of 1890 in each of the named States, more than two-thirds of the adult Negroes were illiterate while less than one-quarter of the adult whites were unable to read or write.10 At the same time, alternate tests were prescribed in all of the named States to assure that white illiterates would not be deprived of the franchise. These included grandfather clauses, property qualifications, 'good character' tests, and the requirement that registrants 'understand' or 'interpret' certain matter.
8
The course of subsequent Fifteenth Amendment litigation in this Court demonstrates the variety and persistence of these and similar institutions designed to deprive Negroes of the right to vote. Grandfather clauses were invalidated in Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340, and Myers v. Anderson, 238 U.S. 368, 35 S.Ct. 932, 59 L.Ed. 1349. Procedural hurdles were struck down in Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281. The white primary was outlawed in Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, and Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152. Improper challenges were nullified in United States v. Thomas, 362 U.S. 58, 80 S.Ct. 612, 4 L.Ed.2d 535. Racial gerrymandering was forbidden by Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110. Finally, discriminatory application of voting tests was condemned in Schnell v. Davis, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093; Alabama v. United States, 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112, and Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709.
9
According to the evidence in recent Justice Department voting suits, the latter stratagem is now the principal method used to bar Negroes from the polls. Discriminatory administration of voting qualifications has been found in all eight Alabama cases, in all nine Louisiana cases, and in all nine Mississippi cases which have gone to final judgment.11 Moreover, in almost all of these cases, the courts have held that the discrimination was pursuant to a widespread 'pattern or practice.' White applicants for registration have often been excused altogether from the literacy and understanding tests or have been given easy versions, have received extensive help from voting officials, and have been registered despite serious errors in their answers.12 Negroes, on the other hand, have typically been required to pass difficult versions of all the tests, without any outside assistance and without the slightest error.13 The good-morals requirement is so vague and subjective that it has constituted an open invitation to abuse at the hands of voting officials.14 Negroes obliged to obtain vouchers from registered voters have found it virtually impossible to comply in areas where almost no Negroes are on the rolls.15
10
In recent years, Congress has repeatedly tried to cope with the problem by facilitating case-by-case litigation against voting discrimination. The Civil Rights Act of 195716 authorized the Attorney General to seek injunctions against public and private interference with the right to vote on racial grounds. Perfecting amendments in the Civil Rights Act of 196017 permitted the joinder of States as parties defendant, gave the Attorney General access to local voting records, and authorized courts to register voters in areas of systematic discrimination. Title I of the Civil Rights Act of 196418 expedited the hearing of voting cases before three-judge courts and outlawed some of the tactics used to disqualify Negroes from voting in federal elections.
11
Despite the earnest efforts of the Justice Department and of many federal judges, these new laws have done little to cure the problem of voting discrimination. According to estimates by the Attorney General during hearings on the Act, registration of voting-age Negroes in Alabama rose only from 14.2% to 19.4% between 1958 and 1964; in Louisiana it barely inched ahead from 31.7% to 31.8% between 1956 and 1965; and in Mississippi it increased only from 4.4% to 6.4% between 1954 and 1964. In each instance, registration of voting-age whites ran roughly 50 percentage points or more ahead of Negro registration.
12
The previous legislation has proved ineffective for a number of reasons. Voting suits are unusually onerous to prepare, sometimes requiring as many as 6,000 man-hours spent combing through registration records in preparation for trial. Litigation has been exceedingly slow, in part because of the ample opportunities for delay afforded voting officials and others involved in the proceedings. Even when favorable decisions have finally been obtained, some of the States affected have merely switched to discriminatory devices not covered by the federal decrees or have enacted difficult new tests designed to prolong the existing disparity between white and Negro registration.19 Alternatively, certain local officials have defied and evaded court orders or have simply closed their registration offices to freeze the voting rolls.20 The provision of the 1960 law authorizing registration by federal officers has had little impact on local maladministration because of its procedural complexities.
13
During the hearings and debates on the Act, Selma, Alabama, was repeatedly referred to as the pre-eminent example of the ineffectiveness of existing legislation. In Dallas County, of which Selma is the seat, there were four years of litigation by the Justice Department and two findings by the federal courts of widespread voting discrimination. Yet in those four years, Negro registration rose only from 156 to 383, although there are approximately 15,000 Negroes of voting age in the county. Any possibility that these figures were attributable to political apathy was dispelled by the protest demonstrations in Selma in the early months of 1965. The House Committee on the Judiciary summed up the reaction of Congress to these developments in the following words:
14
'The litigation in Dallas County took more than 4 years to open the door to the exercise of constitutional rights conferred almost a century ago. The problem on a national scale is that the difficulties experienced in suits in Dallas County have been encountered over and over again under existing voting laws. Four years is too long. The burden is too heavy—the wrong to our citizens is too serious—the damage to our national conscience is too great not to adopt more effective measures than exist today.
15
'Such is the essential justification for the pending bill.' House Report 11.
II.
16
The Voting Rights Act of 1965 reflects Congress' firm intention to rid the country of racial discrimination in voting.21 The heart of the Act is a complex scheme of stringent remedies aimed at areas where voting discrimination has been most flagrant. Section 4(a)—(d) lays down a formula defining the States and political subdivisions to which these new remedies apply. The first of the remedies, contained in § 4(a), is the suspension of literacy tests and similar voting qualifications for a period of five years from the last occurrence of substantial voting discrimination. Section 5 prescribes a second remedy, the suspension of all new voting regulations pending review by federal authorities to determine whether their use would perpetuate voting discrimination. The third remedy, covered in §§ 6(b), 7, 9, and 13(a), is the assignment of federal examiners on certification by the Attorney General to list qualified applicants who are thereafter entitled to vote in all elections.
17
Other provisions of the Act prescribe subsidiary cures for persistent voting discrimination. Section 8 authorizes the appointment of federal poll-watchers in places to which federal examiners have already been assigned. Section 10(d) excuses those made eligible to vote in sections of the country covered by § 4(b) of the Act from paying accumulated past poll taxes for state and local elections. Section 12(e) provides for balloting by persons denied access to the polls in areas where federal examiners have been appointed.
18
The remaining remedial portions of the Act are aimed at voting discrimination in any area of the country where it may occur. Section 2 broadly prohibits the use of voting rules to abridge exercise of the franchise on racial grounds. Sections 3, 6(a), and 13(b) strengthen existing procedures for attacking voting discrimination by means of litigation. Section 4(e) excuses citizens educated in American schools conducted in a foreign language from passing English-language literacy tests. Section 10(a)—(c) facilitates constitutional litigation challenging the imposition of all poll taxes for state and local elections. Sections 11 and 12(a)—(d) authorize civil and criminal sanctions against interference with the exercise of rights guaranteed by the Act.
19
At the outset, we emphasize that only some of the many portions of the Act are properly before us. South Carolina has not challenged §§ 2, 3, 4(e), 6(a), 8, 10, 12(d) and (e), 13(b), and other miscellaneous provisions having nothing to do with this lawsuit. Judicial review of these sections must await subsequent litigation.22 In addition, we find that South Carolina's attack on §§ 11 and 12(a)—(c) is premature. No person has yet been subjected to, or even threatened with, the criminal sanctions which these sections of the Act authorize. See United States v. Raines, 362 U.S. 17, 20—24, 80 S.Ct. 519, 522—524, 4 L.Ed.2d 524. Consequently, the only sections of the Act to be reviewed at this time are §§ 4(a)—(d), 5, 6(b), 7, 9, 13(a), and certain procedural portions of § 14, all of which are presently in actual operation in South Carolina. We turn now to a detailed description of these provisions and their present status.
20
The remedial sections of the Act assailed by South Carolina automatically apply to any State, or to any separate political subdivision such as a county or parish, for which two findings have been made: (1) the Attorney General has determined that on November 1, 1964, it maintained a 'test or device,' and (2) the Director of the Census has determined that less than 50% of its votingage residents were registered on November 1, 1964, or voted in the presidential election of November 1964. These findings are not reviewable in any court and are final upon publication in the Federal Register. § 4(b). As used throughout the Act, the phrase 'test or device' means any requirement that a registrant or voter must '(1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.' § 4(c).
21
Statutory coverage of a State or political subdivision under § 4(b) is terminated if the area obtains a declaratory judgment from the District Court for the District of Columbia, determining that tests and devices have not been used during the preceding five years to abridge the franchise on racial grounds. The Attorney General shall consent to entry of the judgment if he has no reason to believe that the facts are otherwise. § 4(a). For the purposes of this section, tests and devices are not deemed to have been used in a forbidden manner if the incidents of discrimination are few in number and have been promptly corrected, if their continuing effects have been abated, and if they are unlikely to recur in the future. § 4(d). On the other hand, no area may obtain a declaratory judgment for five years after the final decision of a federal court (other than the denial of a judgment under this section of the Act), determining that discrimination through the use of tests or devices has occurred anywhere in the State or political subdivision. These declaratory judgment actions are to be heard by a three-judge panel, with direct appeal to this Court. § 4(a).
22
South Carolina was brought within the coverage formula of the Act on August 7, 1965, pursuant to appropriate administrative determinations which have not been challenged in this proceeding.23 On the same day, coverage was also extended to Alabama, Alaska, Georgia, Louisiana, Mississippi, Virginia, 26 counties in North Carolina, and one county in Arizona.24 Two more counties in Arizona, one county in Hawaii, and one county in Idaho were added to the list on November 19, 1965.25 Thus far Alaska, the three Arizona counties, and the single county in Idaho have asked the District Court for the District of Columbia to grant a declaratory judgment terminating statutory coverage.26
23
In a State or political subdivision covered by § 4(b) of the Act, no person may be denied the right to vote in any election because of his failure to comply with a 'test or device.' § 4(a).
24
On account of this provision, South Carolina is temporarily barred from enforcing the portion of its voting laws which requires every applicant for registration to show that he:
25
'Can both read and write any section of (the State) Constitution submitted to (him) by the registration officer or can show that he owns, and has paid all taxes collectible during the previous year on, property in this State assessed at three hundred dollars or more.' S.C.Code Ann. § 23—62(4) (1965 Supp.).
26
The Attorney General has determined that the property qualification is inseparable from the literacy test,27 and South Carolina makes no objection to this finding. Similar tests and devices have been temporarily suspended in the other sections of the country listed above.28
27
In a State or political subdivision covered by § 4(b) of the Act, no person may be denied the right to vote in any election because of his failure to comply with a voting qualification or procedure different from those in force on November 1, 1964. This suspension of new rules is terminated, however, under either of the following circumstances: (1) if the area has submitted the rules to the Attorney General, and he has not interposed an objection within 60 days, or (2) if the area has obtained a declaratory judgment from the District Court for the District of Columbia, determining that the rules will not abridge the franchise on racial grounds. These declaratory judgment actions are to be heard by a three-judge panel, with direct appeal to this Court. § 5.
28
South Carolina altered its voting laws in 1965 to extend the closing hour at polling places from 6 p.m. to 7 p.m.29 The State has not sought judicial review of this change in the District Court for the District of Columbia, nor has it submitted the new rule to the Attorney General for this scrutiny, although at our hearing the Attorney General announced that he does not challenge the amendment. There are indications in the record that other sections of the country listed above have also altered their voting laws since November 1, 1964.30
29
In any political subdivision covered by § 4(b) of the Act, the Civil Service Commission shall appoint voting examiners whenever the Attorney General certifies either of the following facts: (1) that he has received meritorious written complaints from at least 20 residents alleging that they have been disenfranchised under color of law because of their race, or (2) that the appointment of examiners is otherwise necessary to effectuate the guarantees of the Fifteenth Amendment. In making the latter determination, the Attorney General must consider, among other factors, whether the registration ratio of non-whites to whites seems reasonably attributable to racial discrimination, or whether there is substantial evidence of good-faith efforts to comply with the Fifteenth Amendment. § 6(b). These certifications are not reviewable in any court and are effective upon publication in the Federal Register. § 4(b).
30
The examiners who have been appointed are to test the voting qualifications of applicants according to regulations of the Civil Service Commission prescribing times, places, procedures, and forms. §§ 7(a) and 9(b). Any person who meets the voting requirements of state law, insofar as these have not been suspended by the Act, must promptly be placed on a list of eligible voters. Examiners are to transmit their lists at least once a month to the appropriate state or local officials, who in turn are required to place the listed names on the official voting rolls. Any person listed by an examiner is entitled to vote in all elections held more than 45 days after his name has been transmitted. § 7(b).
31
A person shall be removed from the voting list by an examiner if he has lost his eligibility under valid state law, or if he has been successfully challenged through the procedure prescribed in § 9(a) of the Act. § 7(d). The challenge must be filed at the office within the State designated by the Civil Service Commission; must be submitted within 10 days after the listing is made available for public inspection; must be supported by the affidavits of at least two people having personal knowledge of the relevant facts; and must be served on the person challenged by mail or at his residence. A hearing officer appointed by the Civil Service Commission shall hear the challenge and render a decision within 15 days after the challenge is filed. A petition for review of the hearing officer's decision must be submitted within an additional 15 days after service of the decision on the person seeking review. The court of appeals for the circuit in which the person challenged resides is to hear the petition and affirm the hearing officer's decision unless it is clearly erroneous. Any person listed by an examiner is entitled to vote pending a final decision of the hearing officer or the court. § 9(a).
32
The listing procedures in a political subdivision are terminated under either of the following circumstances: (1) if the Attorney General informs the Civil Service Commission that all persons listed by examiners have been placed on the official voting rolls, and that there is no longer reasonable cause to fear abridgement of the franchise on racial grounds, or (2) if the political subdivision has obtained a declaratory judgment from the District Court for the District of Columbia, ascertaining the same facts which govern termination by the Attorney General, and the Director of the Census has determined that more than 50% of the non-white residents of voting age are registered to vote. A political subdivision may petition the Attorney General to terminate listing procedures or to authorize the necessary census, and the District Court itself shall request the census if the Attorney General's refusal to do so is arbitrary or unreasonable. § 13(a). The determinations by the Director of the Census are not reviewable in any court and are final upon publication in the Federal Register. § 4(b).
33
On October 30, 1965, the Attorney General certified the need for federal examiners in two South Carolina counties,31 and examiners appointed by the Civil Service Commission have been serving there since November 8, 1965. Examiners have also been assigned to 11 counties in Alabama, five parishes in Louisiana, and 19 counties in Mississippi.32 The examiners are listing people found eligible to vote, and the challenge procedure has been employed extensively.33 No political subdivision has yet sought to have federal examiners withdrawn through the Attorney General or the District Court for the District of Columbia.
III.
34
These provisions of the Voting Rights Act of 1965 are challenged on the fundamental ground that they exceed the powers of Congress and encroach on an area reserved to the States by the Constitution. South Carolina and certain of the amici curiae also attack specific sections of the Act for more particular reasons. They argue that the coverage formula prescribed in § 4(a)—(d) violates the principle of the equality of States, denies due process by employing an invalid presumption and by barring judicial review of administrative findings, constitutes a forbidden bill of attainder, and impairs the separation of powers by adjudicating guilt through legislation. They claim that the review of new voting rules required in § 5 infringes Article III by directing the District Court to issue advisory opinions. They contend that the assignment of federal examiners authorized in § 6(b) abridges due process by precluding judicial review of administrative findings and impairs the separation of powers by giving the Attorney General judicial functions; also that the challenge procedure prescribed in § 9 denies due process on account of its speed. Finally, South Carolina and certain of the amici curiae maintain that §§ 4(a) and 5, buttressed by § 14(b) of the Act, abridge due process by limiting litigation to a distant forum.
35
Some of these contentions may be dismissed at the outset. The word 'person' in the context of the Due Process Clause of the Fifth Amendment cannot, by any reasonable mode of interpretation, be expanded to encompass the States of the Union, and to our knowledge this has never been done by any court. See International Shoe Co. v. Cocreham, 246 La. 244, 266, 164 So.2d 314, 322, n. 5, cf. United States v. City of Jackson, 318 F.2d 1, 8 (C.A.5th Cir.). Likewise, courts have consistently regarded the Bill of Attainder Clause of Article I and the principle of the separation of powers only as protections for individual persons and private groups, those who are peculiarly vulnerable to non-judicial determinations of guilt. See United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484; Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366. Nor does a State have standing as the parent of its citizens to invoke these constitutional provisions against the Federal Government, the ultimate parens patriae of every American citizen. Com. of Massachusetts v. Mellon, 262 U.S. 447, 485—486, 43 S.Ct. 597, 600 601, 67 L.Ed. 1078; State of Florida v. Mellon, 273 U.S. 12, 18, 47 S.Ct. 265, 267, 71 L.Ed. 511. The objections to the Act which are raised under these provisions may therefore be considered only as additional aspects of the basic question presented by the case: Has Congress exercised its powers under the Fifteenth Amendment in an appropriate manner with relation to the States?
36
The ground rules for resolving this question are clear. The language and purpose of the Fifteenth Amendment, the prior decisions construing its several provisions, and the general doctrines of constitutional interpretation, all point to one fundamental principle. As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting. Cf. our rulings last Term, sustaining Title II of the Civil Rights Act of 1964, in Heart of Atlanta Motel v. United States, 379 U.S. 241, 258—259, 261—262, 85 S.Ct. 348, 358—359, 360, 13 L.Ed.2d 258, and Katzenbach v. McClung, 379 U.S. 294, 303—304, 85 S.Ct. 377, 383 384, 13 L.Ed.2d 290. We turn now to a more detailed description of the standards which govern our review of the Act.
37
Section 1 of the Fifteenth Amendment declares that '(t)he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.' This declaration has always been treated as self-executing and has repeatedly been construed, without further legislative specification, to invalidate state voting qualifications or procedures which are discriminatory on their face or in practice. See Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567; Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340; Myers v. Anderson, 238 U.S. 368, 35 S.Ct. 932, 59 L.Ed. 1349; Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281; Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987; Schnell v. Davis, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093; Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152; United States v. Thomas, 362 U.S. 58, 80 S.Ct. 612, 4 L.Ed.2d 535; Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110; Alabama v. United States, 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112; Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709. These decisions have been rendered with full respect for the general rule, reiterated last Term in Carrington v. Rash, 380 U.S. 89, 91, 85 S.Ct. 775, 777, 13 L.Ed.2d 675, that States 'have broad powers to determine the conditions under which the right of suffrage may be exercised.' The gist of the matter is that the Fifteenth Amendment supersedes contrary exertions of state power. 'When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right.' Gomillion v. Lightfoot, 364 U.S., at 347, 81 S.Ct., at 130.
38
South Carolina contends that the cases cited above are precedents only for the authority of the judiciary to strike down state statutes and procedures—that to allow an exercise of this authority by Congress would be to rob the courts of their rightful constitutional role. On the contrary, § 2 of the Fifteenth Amendment expressly declares that 'Congress shall have power to enforce this article by appropriate legislation.' By adding this authorization, the Framers indicated that Congress was to be chiefly responsible for implementing the rights created in § 1. 'It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation Some legislation is contemplated to make the (Civil War) amendments fully effective.' Ex parte Virginia, 100 U.S. 339, 345, 25 L.Ed. 676. Accordingly, in addition to the courts, Congress has full remedial powers to effectuate the constitutional prohibition against racial discrimination in voting.
39
Congress has repeatedly exercised these powers in the past, and its enactments have repeatedly been upheld. For recent examples, see the Civil Rights Act of 1957, which was sustained in United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524; United States v. Thomas, supra; and Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307; and the Civil Rights Act of 1960, which was upheld in Alabama v. United States, supra; Louisiana v. United States, supra; and United States v. Mississippi, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717. On the rare occasions when the Court has found an unconstitutional exercise of these powers, in its opinion Congress had attacked evils not comprehended by the Fifteenth Amendment. See United States v. Reese, 92 U.S. 214, 23 L.Ed. 563; James v. Bowman, 190 U.S. 127, 23 S.Ct. 678, 47 L.Ed. 979.
40
The basic test to be applied in a case involving § 2 of the Fifteenth Amendment is the same as in all cases concerning the express powers of Congress with relation to the reserved powers of the States. Chief Justice Marshall laid down the classic formulation, 50 years before the Fifteenth Amendment was ratified:
41
'Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.' McCulloch v. Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579.
42
The Court has subsequently echoed his language in describing each of the Civil War Amendments:
43
'Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.' Ex parte Virginia, 100 U.S., at 345—346, 25 L.Ed. 676.
44
This language was again employed, nearly 50 years later, with reference to Congress' related authority under § 2 of the Eighteenth Amendment. James Everard's Breweries v. Day, 265 U.S. 545, 558—559, 44 S.Ct. 628, 631, 68 L.Ed. 1174.
45
We therefore reject South Carolina's argument that Congress may appropriately do no more than to forbid violations of the Fifteenth Amendment in general terms—that the task of fashioning specific remedies or of applying them to particular localities must necessarily be left entirely to the courts. Congress is not circumscribed by any such artificial rules under § 2 of the Fifteenth Amendment. In the oft-repeated words of Chief Justice Marshall, referring to another specific legislative authorization in the Constitution, 'This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.' Gibbons v. Ogden, 9 Wheat. 1, 196, 6 L.Ed. 23.
IV.
46
Congress exercised its authority under the Fifteenth Amendment in an inventive manner when it enacted the Voting Rights Act of 1965. First: The measure prescribes remedies for voting discrimination which go into effect without any need for prior adjudication. This was clearly a legitimate response to the problem, for which there is ample precedent under other constitutional provisions. See Katzenbach v. McClung, 379 U.S. 294, 302—304, 85 S.Ct. 377, 383—384, 13 L.Ed.2d 290; United States v. Darby, 312 U.S. 100, 120—121, 61 S.Ct. 451, 460, 85 L.Ed. 609. Congress had found that case-by-case litigation was inadequate to combat widespread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits.34 After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims. The question remains, of course, whether the specific remedies prescribed in the Act were an appropriate means of combatting the evil, and to this question we shall presently address ourselves.
47
Second: The Act intentionally confines these remedies to a small number of States and political subdivisions which in most instances were familiar to Congress by name.35 This, too, was a permissible method of dealing with the problem. Congress had learned that substantial voting discrimination presently occurs in certain sections of the country, and it knew no way of accurately forecasting whether the evil might spread elsewhere in the future.36 In acceptable legislative fashion, Congress chose to limit its attention to the geographic areas where immediate action seemed necessary. See McGowan v. State of Maryland, 366 U.S. 420, 427, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393; Salsburg v. State of Maryland, 346 U.S. 545, 550—554, 74 S.Ct. 280, 282—285, 98 L.Ed.2d 281. The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared. See Coyle v. Smith, 221 U.S. 559, 31 S.Ct. 688, 55 L.Ed. 853, and cases cited therein.
48
We now consider the related question of whether the specific States and political subdivisions within § 4(b) of the Act were an appropriate target for the new remedies. South Carolina contends that the coverage formula is awkwardly designed in a number of respects and that it disregards various local conditions which have nothing to do with racial discrimination. These arguments, however, are largely beside the point.37 Congress began work with reliable evidence of actual voting discrimination in a great majority of the States and political subdivisions affected by the new remedies of the Act. The formula eventually evolved to describe these areas was relevant to the problem of voting discrimination, and Congress was therefore entitled to infer a significant danger of the evil in the few remaining States and political subdivisions covered by § 4(b) of the Act. No more was required to justify the application to these areas of Congress' express powers under the Fifteenth Amendment. Cf. North American Co. v. S.E.C., 327 U.S. 686, 710—711, 66 S.Ct. 785, 798—799, 90 L.Ed. 945; Assigned Car Cases, 274 U.S. 564, 582—583, 47 S.Ct. 727, 733, 71 L.Ed. 1204.
49
To be specific, the new remedies of the Act are imposed on three States—Alabama, Louisiana, and Mississippi—in which federal courts have repeatedly found substantial voting discrimination.38 Section 4(b) of the Act also embraces two other States—Georgia and South Carolina—plus large portions of a third State—North Carolina for which there was more fragmentary evidence of recent voting discrimination mainly adduced by the Justice Department and the Civil Rights Commission.39 All of these areas were appropriately subjected to the new remedies. In identifying past evils, Congress obviously may avail itself of information from any probative source. See Heart of Atlanta Motel v. United States, 379 U.S. 241, 252—253, 85 S.Ct. 348, 354—355, 13 L.Ed.2d 258; Katzenbach v. McClung, 379 U.S., at 299—301, 85 S.Ct. at 381 382, 13 L.Ed.2d 290.
50
The areas listed above, for which there was evidence of actual voting discrimination, share two characteristics incorporated by Congress into the coverage formula: the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average. Tests and devices are relevant to voting discrimination because of their long history as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters. Accordingly, the coverage formula is rational in both practice and theory. It was therefore permissible to impose the new remedies on the few remaining States and political subdivisions covered by the formula, at least in the absence of proof that they have been free of substantial voting discrimination in recent years. Congress is clearly not bound by the rules relating to statutory presumptions in criminal cases when it prescribes civil remedies against other organs of government under § 2 of the Fifteenth Amendment. Compare United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210; Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519.
51
It is irrelevant that the coverage formula excludes certain localities which do not employ voting tests and devices but for which there is evidence of voting discrimination by other means. Congress had learned that widespread and persistent discrimination in voting during recent years has typically entailed the misuse of tests and devices, and this was the evil for which the new remedies were specifically designed.40 At the same time, through §§ 3, 6(a), and 13(b) of the Act, Congress strengthened existing remedies for voting discrimination in other areas of the country. Legislation need not deal with all phases of a problem in the same way, so long as the distinctions drawn have some basis in practical experience. See Williamson v. Lee Optical Co., 348 U.S. 483, 488—489, 75 S.Ct. 461, 464—465, 99 L.Ed. 563; Railway Express Agency v. People of State of New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533. There are no States or political subdivisions exempted from coverage under § 4(b) in which the record reveals recent racial discrimination involving tests and devices. This fact confirms the rationality of the formula.
52
Acknowledging the possibility of overbreadth, the Act provides for termination of special statutory coverage at the behest of States and political subdivisions in which the danger of substantial voting discrimination has not materialized during the preceding five years. Despite South Carolina's argument to the contrary, Congress might appropriately limit litigation under this provision to a single court in the District of Columbia, pursuant to its constitutional power under Art. III, § 1, to 'ordain and establish' inferior federal tribunals. See Bowles v. Willingham, 321 U.S. 503, 510—512, 64 S.Ct. 641, 645, 646, 88 L.Ed. 892; Yakus v. United States, 321 U.S. 414, 427—431, 64 S.Ct. 660, 668, 670, 88 L.Ed. 834; Lockerty v. Phillips, 319 U.S. 182, 63 S.Ct. 1019, 87 L.Ed. 1339. At the present time, contractual claims against the United States for more than $10,000 must be brought in the Court of Claims, and, until 1962, the District of Columbia was the sole venue of suits against federal officers officially residing in the Nation's Capital.41 We have discovered no suggestion that Congress exceeded constitutional bounds in imposing these limitations on litigation against the Federal Government, and the Act is no less reasonable in this respect.
53
South Carolina contends that these termination procedures are a nullity because they impose an impossible burden of proof upon States and political subdivisions entitled to relief. As the Attorney General pointed out during hearings on the Act, however, an area need do no more than submit affidavits from voting officials, asserting that they have not been guilty of racial discrimination through the use of tests and devices during the past five years, and then refute whatever evidence to the contrary may be adduced by the Federal Government.42 Section 4(d) further assures that an area need not disprove each isolated instance of voting discrimination in order to obtain relief in the termination proceedings. The burden of proof is therefore quite bearable, particularly since the relevant facts relating to the conduct of voting officials are peculiarly within the knowledge of the States and political subdivisions themselves. See United States v. New York, N.H. & R.R. Co., 355 U.S. 253, 256, n. 5, 78 S.Ct. 212, 214, 2 L.Ed.2d 247; cf. S.E.C. v. Ralston Purina Co., 346 U.S. 119, 126, 73 S.Ct. 981, 985, 97 L.Ed. 1494.
54
The Act bars direct judicial review of the findings by the Attorney General and the Director of the Census which trigger application of the coverage formula. We reject the claim by Alabama as amicus curiae that this provision is invalid because it allows the new remedies of the Act to be imposed in an arbitrary way. The Court has already permitted Congress to withdraw judicial review of administrative determinations in numerous cases involving the statutory rights of private parties. For example, see United States v. California Eastern Line, 348 U.S. 351, 75 S.Ct. 419, 99 L.Ed. 383; Switchmen's Union v. National Mediation Bd., 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61. In this instance, the findings not subject to review consist of objective statistical determinations by the Census Bureau and a routine analysis of state statutes by the Justice Department. These functions are unlikely to arouse any plausible dispute, as South Carolina apparently concedes. In the event that the formula is improperly applied, the area affected can always go into court and obtain termination of coverage under § 4(b), provided of course that it has not been guilty of voting discrimination in recent years. This procedure serves as a partial substitute for direct judicial review.
55
Suspension of tests.
56
We now arrive at consideration of the specific remedies prescribed by the Act for areas included within the coverage formula. South Carolina assails the temporary suspension of existing voting qualifications, reciting the rule laid down by Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072, that literacy tests and related devices are not in themselves contrary to the Fifteenth Amendment. In that very case, however, the Court went on to say, 'Of course a literacy test, fair on its face, may be employed to perpetuate that discrimination which the Fifteenth Amendment was designed to uproot.' Id., at 53, 79 S.Ct. at 991. The record shows that in most of the States covered by the Act, including South Carolina, various tests and devices have been instituted with the purpose of disenfranchising Negroes, have been framed in such a way as to facilitate this aim, and have been administered in a discriminatory fashion for many years.43 Under these circumstances, the Fifteenth Amendment has clearly been violated. See Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709; State of Alabama v. United States, 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112; Schnell v. Davis, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093.
57
The Act suspends literacy tests and similar devices for a period of five years from the last occurrence of substantial voting discrimination. This was a legitimate response to the problem, for which there is ample precedent in Fifteenth Amendment cases. Ibid. Underlying the response was the feeling that States and political subdivisions which had been allowing white illiterates to vote for years could not sincerely complain about 'dilution' of their electorates through the registration of Negro illiterates.44 Congress knew that continuance of the tests and devices in use at the present time, no matter how fairly administered in the future, would freeze the effect of past discrimination in favor of unqualified white registrants.45 Congress permissibly rejected the alternative of requiring a complete re-registration of all voters, believing that this would be too harsh on many whites who had enjoyed the franchise for their entire adult lives.46
58
The Act suspends new voting regulations pending scrutiny by federal authorities to determine whether their use would violate the Fifteenth Amendment. This may have been an uncommon exercise of congressional power, as South Carolina contends, but the Court has recognized that exceptional conditions can justify legislative measures not otherwise appropriate. See Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413; Wilson v. New, 243 U.S. 332, 37 S.Ct. 298, 61 L.Ed. 755. Congress knew that some of the States covered by § 4(b) of the Act had resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees.47 Congress had reason to suppose that these States might try similar maneuvers in the future in order to evade the remedies for voting discrimination contained in the Act itself. Under the compulsion of these unique circumstances, Congress responded in a permissibly decisive manner.
59
For reasons already stated, there was nothing inappropriate about limiting litigation under this provision to the District Court for the District of Columbia, and in putting the burden of proof on the areas seeking relief. Nor has Congress authorized the District Court to issue advisory opinions, in violation of the principles of Article III invoked by Georgia as amicus curiae. The Act automatically suspends the operation of voting regulations enacted after November 1, 1964, and furnishes mechanisms for enforcing the suspension. A State or political subdivision wishing to make use of a recent amendment to its voting laws therefore has a concrete and immediate 'controversy' with the Federal Government. Cf. Public Utilities Comm. v. United States, 355 U.S. 534, 536—539, 78 S.Ct. 446, 448—450, 2 L.Ed.2d 470; United States v. State of California, 332 U.S. 19, 24—25, 67 S.Ct. 1658, 1661, 91 L.Ed. 1889. An appropriate remedy is a judicial determination that continued suspension of the new rule is unnecessary to vindicate rights guaranteed by the Fifteenth Amendment.
60
Federal examiners.
61
The Act authorizes the appointment of federal examiners to list qualified applicants who are thereafter entitled to vote, subject to an expeditious challenge procedure. This was clearly an appropriate response to the problem, closely related to remedies authorized in prior cases. See Alabama v. United States, supra; United States v. Thomas, 362 U.S. 58, 80 S.Ct. 612, 4 L.Ed.2d 535. In many of the political subdivisions covered by § 4(b) of the Act, voting officials have persistently employed a variety of procedural tactics to deny Negroes the franchise, often in direct defiance or evasion of federal court decrees.48 Congress realized that merely to suspend voting rules which have been misused or are subject to misuse might leave this localized evil undisturbed. As for the briskness of the challenge procedure, Congress knew that in some of the areas affected, challenges had been persistently employed to harass registered Negroes. It chose to forestall this abuse, at the same time providing alternative ways for removing persons listed through error or fraud.49 In addition to the judicial challenge procedure, § 7(d) allows for the removal of names by the examiner himself, and § 11(c) makes it a crime to obtain a listing through fraud.
62
In recognition of the fact that there were political subdivisions covered by § 4(b) of the Act in which the appointment of federal examiners might be unnecessary, Congress assigned the Attorney General the task of determining the localities to which examiners should be sent.50 There is no warrant for the claim, asserted by Georgia as amicus curiae, that the Attorney General is free to use this power in an arbitrary fashion, without regard to the purposes of the Act. Section 6(b) sets adequate standards to guide the exercise of his discretion, by directing him to calculate the registration ratio of non-whites to whites, and to weigh evidence of good-faith efforts to avoid possible voting discrimination. At the same time, the special termination procedures of § 13(a) provide indirect judicial review for the political subdivisions affected, assuring the withdrawal of federal examiners from areas where they are clearly not needed. Cf. Carlson v. Landon, 342 U.S. 524, 542—544, 72 S.Ct. 525, 535—536, 96 L.Ed. 547; Mulford v. Smith, 307 U.S. 38, 48—49, 59 S.Ct. 648, 652, 83 L.Ed. 1092.
63
After enduring nearly a century of widespread resistance to the Fifteenth Amendment, Congress has marshalled an array of potent weapons against the evil, with authority in the Attorney General to employ them effectively. Many of the areas directly affected by this development have indicated their willingness to abide by any restraints legitimately imposed upon them.51 We here hold that the portions of the Voting Rights Act properly before us are a valid means for carrying out the commands of the Fifteenth Amendment. Hopefully, millions of non-white Americans will now be able to participate for the first time on an equal basis in the government under which they live. We may finally look forward to the day when truly '(t)he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.'
64
The bill of complaint is dismissed.
65
Bill dismissed.
APPENDIX TO OPINION OF THE COURT.
66
VOTING RIGHTS ACT OF 1965.
AN ACT
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To enforce the fifteenth amendment to the Constitution of the United States, and for other purposes.
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Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act shall be known as the 'Voting Rights Act of 1965.'
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Sec. 2. No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.
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Sec. 3. (a) Whenever the Attorney General institutes a proceeding under any statute to enforce the guarantees of the fifteenth amendment in any State or political subdivision the court shall authorize the appointment of Federal examiners by the United States Civil Service Commission in accordance with section 6 to serve for such period of time and for such political subdivisions as the court shall determine is appropriate to enforce the guarantees of the fifteenth amendment (1) as part of any interlocutory order if the court determines that the appointment of such examiners is necessary to enforce such guarantees or (2) as part of any final judgment if the court finds that violations of the fifteenth amendment justifying equitable relief have occurred in such State or subdivision: Provided, That the court need not authorize the appointment of examiners if any incidents of denial or abridgement of the right to vote on account of race or color (1) have been few in number and have been promptly and effectively corrected by State or local action, (2) the continuing effect of such incidents has been eliminated, and (3) there is no reasonable probability of their recurrence in the future.
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(b) If in a proceeding instituted by the Attorney General under any statute to enforce the guarantees of the fifteenth amendment in any State or political subdivision the court finds that a test or device has been used for the purpose or with the effect of denying or abridging the right of any citizen of the United States to vote on account of race or color, it shall suspend the use of tests and devices in such State or political subdivisions as the court shall determine is appropriate and for such period as it deems necessary.
72
(c) If in any proceeding instituted by the Attorney General under any statute to enforce the guarantees of the fifteenth amendment in any State or political subdivision the court finds that violations of the fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision, the court, in addition to such relief as it may grant, shall retain jurisdiction for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the court's finding nor the Attorney General's failure to object shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure.
73
Sec. 4. (a) To assure that the right of citizens of the United States to vote is not denied or abridged on account of race or color, no citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device in any State with respect to which the determinations have been made under subsection (b) or in any political subdivision with respect to which such determinations have been made as a separate unit, unless the United States District Court for the District of Columbia in an action for a declaratory judgment brought by such State or subdivision against the United States has determined that no such test or device has been used during the five years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color: Provided, That no such declaratory judgment shall issue with respect to any plaintiff for a period of five years after the entry of a final judgment of any court of the United States, other than the denial of a declaratory judgment under this section, whether entered prior to or after the enactment of this Act, determining that denials or abridgments of the right to vote on account of race or color through the use of such tests or devices have occurred anywhere in the territory of such plaintiff.
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An action pursuant to this subsection shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court. The court shall retain jurisdiction of any action pursuant to this subsection for five years after judgment and shall reopen the action upon motion of the Attorney General alleging that a test or device has been used for the purpose or with the effect of denying or abridging the right to vote on account of race or color.
75
If the Attorney General determines that he has no reason to believe that any such test or device has been used during the five years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color, he shall consent to the entry of such judgment.
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(b) The provisions of subsection (a) shall apply in any State or in any political subdivision of a state which (1) the Attorney General determines maintained on November 1, 1964, any test or device, and with respect to which (2) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 per centum of such persons voted in the presidential election of November 1964.
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A determination or certification of the Attorney General or of the Director of the Census under this section or under section 6 or section 13 shall not be reviewable in any court and shall be effective upon publication in the Federal Register.
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(c) The phrase 'test or device' shall mean any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters of members of any other class.
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(d) For purposes of this section no State or political subdivision shall be determined to have engaged in the use of tests or devices for the purpose or with the effect of denying or abridging the right to vote on account of race or color if (1) incidents of such use have been few in number and have been promptly and effectively corrected by State or local action, (2) the continuing effect of such incidents has been eliminated, and (3) there is no reasonable probability of their recurrence in the future.
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(e)(1) Congress hereby declares that to secure the rights under the fourteenth amendment of persons educated in American-flag schools in which the predominant classroom language was other than English, it is necessary to prohibit the States from conditioning the right to vote of such persons on ability to read, write, understand, or interpret any matter in the English language.
81
(2) No person who demonstrates that he has successfully completed the sixth primary grade in a public school in, or a private school accredited by, any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico in which the predominant classroom language was other than English, shall be denied the right to vote in any Federal, State, or local election because of his inability to read, write, understand, or interpret any matter in the English language, except that in States in which State law provides that a different level of education is presumptive of literacy, he shall demonstrate that he has successfully completed an equivalent level of education in a public school in, or a private school accredited by, any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico in which the predominant classroom language was other than English.
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Sec. 5. Whenever a State or political subdivision with respect to which the prohibitions set forth in section 4(a) are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the Attorney General's failure to object nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court.
83
Sec. 6. Whenever (a) a court has authorized the appointment of examiners pursuant to the provisions of section 3(a), or (b) unless a declaratory judgment has been rendered under section 4(a), the Attorney General certifies with respect to any political subdivision named in, or included within the scope of, determinations made under section 4(b) that (1) he has received complaints in writing from twenty or more residents of such political subdivision alleging that they have been denied the right to vote under color of law on account of race or color, and that he believes such complaints to be meritorious, or (2) that in his judgment (considering, among other factors, whether the ratio of nonwhite persons to white persons registered to vote within such subdivision appears to him to be reasonably attributable to violations of the fifteenth amendment or whether substantial evidence exists that bona fide efforts are being made within such subdivision to comply with the fifteenth amendment), the appointment of examiners is otherwise necessary to enforce the guarantees of the fifteenth amendment, the Civil Service Commission shall appoint as many examiners for such subdivision as it may deem appropriate to prepare and maintain lists of persons eligible to vote in Federal, State, and local elections. Such examiners, hearing officers provided for in section 9(a), and other persons deemed necessary by the Commission to carry out the provisions and purposes of this Act shall be appointed, compensated, and separated without regard to the provisions of any statute administered by the Civil Service Commission, and service under this Act shall not be considered employment for the purposes of any statute administered by the Civil Service Commission, except the provisions of section 9 of the Act of August 2, 1939, as amended (5 U.S.C. 118i), prohibiting partisan political activity: Provided, That the Commission is authorized, after consulting the head of the appropriate department or agency, to designate suitable persons in the official service of the United States, with their consent, to serve in these positions. Examiners and hearing officers shall have the power to administer oaths.
84
Sec. 7. (a) The examiners for each political subdivision shall, at such places as the Civil Service Commission shall by regulation designate, examine applicants concerning their qualifications for voting. An application to an examiner shall be in such form as the Commission may require and shall contain allegations that the applicant is not otherwise registered to vote.
85
(b) Any person whom the examiner finds, in accordance with instructions received under section 9(b), to have the qualifications prescribed by State law not inconsistent with the Constitution and laws of the United States shall promptly be placed on a list of eligible voters. A challenge to such listing may be made in accordance with section 9(a) and shall not be the basis for a prosecution under section 12 of this Act. The examiner shall certify and transmit such list, and any supplements as appropriate, at least once a month, to the offices of the appropriate election officials, with copies to the Attorney General and the attorney general of the State, and any such lists and supplements thereto transmitted during the month shall be available for public inspection on the last business day of the month and in any event not later than the forty-fifth day prior to any election. The appropriate State or local election official shall place such names on the official voting list. Any person whose name appears on the examiner's list shall be entitled and allowed to vote in the election district of his residence unless and until the appropriate election officials shall have been notified that such person has been removed from such list in accordance with subsection (d): Provided, That no person shall be entitled to vote in any election by virtue of this Act unless his name shall have been certified and transmitted on such a list to the offices of the appropriate election officials at least forty-five days prior to such election.
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(c) The examiner shall issue to each person whose name appears on such a list a certificate evidencing his eligibility to vote.
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(d) A person whose name appears on such a list shall be removed therefrom by an examiner if (1) such person has been successfully challenged in accordance with the procedure prescribed in section 9, or (2) he has been determined by an examiner to have lost his eligibility to vote under State law not inconsistent with the Constitution and the laws of the United States.
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Sec. 8. Whenever an examiner is serving under this Act in any political subdivision, the Civil Service Commission may assign, at the request of the Attorney General, one or more persons, who may be officers of the United States, (1) to enter and attend at any place for holding an election in such subdivision for the purpose of observing whether persons who are entitled to vote are being permitted to vote, and (2) to enter and attend at any place for tabulating the votes cast at any election held in such subdivision for the purpose of observing whether votes cast by persons entitled to vote are being properly tabulated. Such persons so assigned shall report to an examiner appointed for such political subdivision, to the Attorney General, and if the appointment of examiners has been authorized pursuant to section 3(a), to the court.
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Sec. 9. (a) Any challenge to a listing on an eligibility list prepared by an examiner shall be heard and determined by a hearing officer appointed by and responsible to the Civil Service Commission and under such rules as the Commission shall by regulation prescribe. Such challenge shall be entertained only if filed at such office within the State as the Civil Service Commission shall by regulation designate, and within ten days after the listing of the challenged person is made available for public inspection, and if supported by (1) the affidavits of at least two persons having personal knowledge of the facts constituting grounds for the challenge, and (2) a certification that a copy of the challenge and affidavits have been served by mail or in person upon the person challenged at his place of residence set out in the application. Such challenge shall be determined within fifteen days after it has been filed. A petition for review of the decision of the hearing officer may be filed in the United States court of appeals for the circuit in which the person challenged resides within fifteen days after service of such decision by mail on the person petitioning for review but no decision of a hearing officer shall be reversed unless clearly erroneous. Any person listed shall be entitled and allowed to vote pending final determination by the hearing officer and by the court.
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(b) The times, places, procedures, and form for application and listing pursuant to this Act and removals from the eligibility lists shall be prescribed by regulations promulgated by the Civil Service Commission and the Commission shall, after consultation with the Attorney General, instruct examiners concerning applicable State law not inconsistent with the Constitution and laws of the United States with respect to (1) the qualifications required for listing, and (2) loss of eligibility to vote.
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(c) Upon the request of the applicant or the challenger or on its own motion the Civil Service Commission shall have the power to require by subpena the attendance and testimonony of witnesses and the production of documentar evidence relating to any matter pending before it under the authority of this section. In case of contumacy or refusal to obey a subpena, any district court of the United States or the United States court of any territory or possession, or the District Court of the United States for the District of Columbia, within the jurisdiction of which said person guilty of contumacy or refusal to obey is found or resides or is domiciled or transacts business, or has appointed an agent for receipt of service of process, upon application by the Attorney General of the United States shall have jurisdiction to issue to such person an order requiring such person to appear before the Commission or a hearing officer, there to produce pertinent, relevant, and nonprivileged documentary evidence if so ordered, or there to give testimony touching the matter under investigation; and any failure to obey such order of the court may be punished by said court as a contempt thereof.
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Sec. 10. (a) The Congress finds that the requirement of the payment of a poll tax as a precondition to voting (i) precludes persons of limited means from voting or imposes unreasonable financial hardship upon such persons as a precondition to their exercise of the franchise, (ii) does not bear a reasonable relationship to any legitimate State interest in the conduct of elections, and (iii) in some areas has the purpose or effect of denying persons the right to vote because of race or color. Upon the basis of these findings, Congress declares that the constitutional right of citizens to vote is denied or abridged in some areas by the requirement of the payment of a poll tax as a precondition to voting.
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(b) In the exercise of the powers of Congress under section 5 of the fourteenth amendment and section 2 of the fifteenth amendment, the Attorney General is authorized and directed to institute forthwith in the name of the United States such actions, including actions against States or political subdivisions, for declaratory judgment or injunctive relief against the enforcement of any requirement of the payment of a poll tax as a precondition to voting, or substitute therefor enacted after November 1, 1964, as will be necessary to implement the declaration of subsection (a) and the purposes of this section.
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(c) The district courts of the United States shall have jurisdiction of such actions which shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court. It shall be the duty of the judge designated to hear the case to assign the case for hearing at the earliest practicable date, to participate in the hearing and determination thereof, and to cause the case to be in every way expedited.
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(d) During the pendency of such actions, and thereafter if the courts, notwithstanding this action by the Congress, should declare the requirement of the payment of a poll tax to be constitutional, no citizen of the United States who is a resident of a State or political subdivision with respect to which determinations have been made under subsection 4(b) and a declaratory judgment has not been entered under subsection 4(a), during the first year he becomes otherwise entitled to vote by reason of registration by State or local officials or listing by an examiner, shall be denied the right to vote for failure to pay a poll tax if he tenders payment of such tax for the current year to an examiner or to the appropriate State or local official at least forty-five days prior to election, whether or not such tender would be timely or adequate under State law. An examiner shall have authority to accept such payment from any person authorized by this Act to make an application for listing, and shall issue a receipt for such payment. The examiner shall transmit promptly any such poll tax payment to the office of the State or local official authorized to receive such payment under State law, together with the name and address of the applicant.
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Sec. 11. (a) No person acting under color of law shall fail or refuse to permit any person to vote who is entitled to vote under any provision of this Act or is otherwise qualified to vote, or willfully fail or refuse to tabulate, count, , and report such person's vote
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(b) No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote, or intimidate, threaten, or coerce any person for exercising any powers or duties under section 3(a), 6, 8, 9, 10, or 12(e).
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(c) Whoever knowingly or willfully gives false information as to his name, address, or period of residence in the voting district for the purpose of establishing his eligibility to register or vote, or conspires with another individual for the purpose of encouraging his false registration to vote or illegal voting, or pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years, or both: Provided, however, That this provision shall be applicable only to general, special, or primary elections held solely or in part for the purpose of selecting or electing any candidate for the office of President, Vice President, presidential elector, Member of the United States Senate, Member of the United States House of Representatives, or Delegates or Commissioners from the territories or possessions, or Resident Commissioner of the Commonwealth of Puerto Rico.
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(d) Whoever, in any matter within the jurisdiction of an examiner or hearing officer knowingly and willfully falsifies or conceals 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.
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Sec. 12. (a) Whoever shall deprive or attempt to deprive any person of any right secured by section 2, 3, 4, 5, 7, or 10 or shall violate section 11(a) or (b), shall be fined not more than $5,000, or imprisoned not more than five years, or both.
101
(b) Whoever, within a year following an election in a political subdivision in which an examiner has been appointed (1) destroys, defaces, mutilates, or otherwise alters the marking of a paper ballot which has been cast in such election, or (2) alters any official record of voting in such election tabulated from a voting machine or otherwise, shall be fined not more than $5,000, or imprisoned not more than five years, or both.
102
(c) Whoever conspires to violate the provisions of subsection (a) or (b) of this section, or interferes with any right secured by section 2, 3, 4, 5, 7, 10, or 11(a) or (b) shall be fined not more than $5,000, or imprisoned not more than five years, or both.
103
(d) Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice prohibited by section 2, 3, 4, 5, 7, 10, 11, or subsection (b) of this section, the Attorney General may institute for the United States, or in the name of the United States, an action for preventive relief, including an application for a temporary or permanent injunction, restraining order, or other order, and including an order directed to the State and State or local election officials to require them (a) to permit persons listed under this Act of vote and (2) to count such votes.
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(e) Whenever in any political subdivision in which there are examiners appointed pursuant to this Act any persons allege to such an examiner within forty-eight hours after the closing of the polls that notwithstanding (1) their listing under this Act or registration by an appropriate election official and (2) their eligibility to vote, they have not been permitted to vote in such election, the examiner shall forthwith notify the Attorney General if such allegations in his opinion appear to be well founded. Upon receipt of such notification, the Attorney General may forthwith file with the district court an application for an order providing for the marking, casting, and counting of the ballots of such persons and requiring the inclusion of their votes in the total vote before the results of such election shall be deemed final and any force or effect given thereto. The district court shall hear and determine such matters immediately after the filing of such application. The remedy provided in this subsection shall not preclude any remedy available under State or Federal law.
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(f) The district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this section and shall exercise the same without regard to whether a person asserting rights under the provisions of this Act shall have exhausted any administrative or other remedies that may be provided by law.
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Sec. 13. Listing procedures shall be terminated in any political subdivision of any State (a) with respect to examiners appointed pursuant to clause (b) of section 6 whenever the Attorney General notifies the Civil Service Commission, or whenever the District Court for the District of Columbia determines in an action for declaratory judgment brought by any political subdivision with respect to which the Director of the Census has determined that more than 50 per centum of the nonwhite persons of voting age residing therein are registered to vote, (1) that all persons listed by an examiner for such subdivision have been placed on the appropriate voting registration roll, and (2) that there is no longer reasonable cause to believe that persons will be deprived of or denied the right to vote on account of race or color in such subdivision, and (b), with respect to examiners appointed pursuant to section 3(a), upon order of the authorizing court. A political subdivision may petition the Attorney General for the termination of listing procedures under clause (a) of this section, and may petition the Attorney General to request the Director of the Census to take such survey or census as may be appropriate for the making of the determination provided for in this section. The District Court for the District of Columbia shall have jurisdiction to require such survey or census to be made by the Director of the Census and it shall require him to do so if it deems the Attorney General's refusal to request such survey or census to be arbitrary or unreasonable.
107
Sec. 14. (a) All cases of criminal contempt arising under the provisions of this Act shall be governed by section 151 of the Civil Rights Act of 1957 (42 U.S.C. 1995).
108
(b) No court other than the District Court for the District of Columbia or a court of appeals in any proceeding under section 9 shall have jurisdiction to issue any declaratory judgment pursuant to section 4 or section 5 or any restraining order or temporary or permanent injunction against the execution or enforcement of any provision of this Act or any action of any Federal officer or employee pursuant hereto.
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(c) (1) The terms 'vote' or 'voting' shall include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this Act, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.
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(2) The term 'political subdivision' shall mean any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting.
111
(d) In any action for a declaratory judgment brought pursuant to section 4 or section 5 of this Act, subpenas for witnesses who are required to attend the District Court for the District of Columbia may be served in any judicial district of the United States: Provided, That no writ of subpena shall issue for witnesses without the District of Columbia at a greater distance than one hundred miles from the place of holding court without the permission of the District Court for the District of Columbia being first had upon proper application and cause shown.
112
Sec. 15. Section 2004 of the Revised Statutes (42 U.S.C. 1971), as amended by section 131 of the Civil Rights Act of 1957 (71 Stat. 637), and amended by section 601 of the Civil Rights Act of 1960 (74 Stat. 90), and as further amended by section 101 of the Civil Rights act of 1964 (78 Stat. 241), is further amended as follows:
113
(a) Delete the word 'Federal' wherever it appears in subsections (a) and (c);
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(b) Repeal subsection (f) and designate the present subsections (g) and (h) as (f) and (g), respectively.
115
Sec. 16. The Attorney General and the Secretary of Defense, jointly, shall make a full and complete study to determine whether, under the laws or practices of any State or States, there are preconditions to voting, which might tend to result in discrimination against citizens serving in the Armed Forces of the United States seeking to vote. Such officials shall, jointly, make a report to the Congress not later than June 30, 1966, containing the results of such study, together with a list of any States in which such preconditions exist, and shall include in such report such recommendations for legislation as they deem advisable to prevent discrimination in voting against citizens serving in the Armed Forces of the United States.
116
Sec. 17. Nothing in this Act shall be construed to deny, impair, or otherwise adversely affect the right to vote of any person registered to vote under the law of any State or political subdivision.
117
Sec. 18. There are hereby authorized to be appropriated such sums as are necessary to carry out the provisions of this Act.
118
Sec. 19. If any provision of this Act or the application thereof to any person or circumstances is held invalid, the remainder of the Act and the application of the provision to other persons not similarly situated or to other circumstances shall not be affected thereby.
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Approved August 6, 1965.
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Mr. Justice BLACK, concurring and dissenting.
121
I agree with substantially all of the Court's opinion sustaining the power of Congress under § 2 of the Fifteenth Amendment to suspend state literacy tests and similar voting qualifications and to authorize the Attorney General to secure the appointment of federal examiners to register qualified voters in various sections of the country. Section 1 of the Fifteenth Amendment provides that 'The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.' In addition to this unequivocal command to the States and the Federal Government that no citizen shall have his right to vote denied or abridged because of race or color, § 2 of the Amendment unmistakably gives Congress specific power to go further and pass appropriate legislation to protect this right to vote against any method of abridgement no matter how subtle. Compare my dissenting opinion in Bell v. State of Maryland, 378 U.S. 226, 318, 84 S.Ct. 1814, 1864, 12 L.Ed.2d 822. I have no doubt whatever as to the power of Congress under § 2 to enact the provisions of the Voting Rights Act of 1965 dealing with the suspension of state voting tests that have been used as notorious means to deny and abridge voting rights on racial grounds. This same congressional power necessarily exists to authorize appointment of federal examiners. I also agree with the judgment of the Court upholding § 4(b) of the Act which sets out a formula for determining when and where the major remedial sections of the Act take effect. I reach this conclusion, however, for a somewhat different reason than that stated by the Court, which is that 'the coverage formula is rational in both practice and theory.' I do not base my conclusion on the fact that the formula is rational, for it is enough for me that Congress by creating this formula has merely exercised its hitherto unquestioned and undisputed power to decide when, where, and upon what conditions its laws shall go into effect. By stating in specific detail that the major remedial sections of the Act are to be applied in areas where certain conditions exist, and by granting the Attorney General and the Director of the Census unreviewable power to make the mechanical determination of which areas come within the formula of § 4(b), I believe that Congress has acted within its established power to set out preconditions upon which the Act is to go into effect. See, e.g., Martin v. Mott, 12 Wheat. 19, 6 L.Ed. 537; United States v. George S. Bush & Co., 310 U.S. 371, 60 S.Ct. 944, 84 L.Ed. 1259; Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774.
122
Though, as I have said, I agree with most of the Court's conclusions, I dissent from its holding that every part of § 5 of the Act is constitutional. Section 4(a), to which § 5 is linked, suspends for five years all literacy tests and similar devices in those States coming within the formula of § 4(b). Section 5 goes on to provide that a State covered by § 4(b) can in no way amend its constitution or laws relating to voting without first trying to persuade the Attorney General of the United States or the Federal District Court for the District of Columbia that the new proposed laws do not have the purpose and will not have the effect of denying the right to vote to citizens on account of their race or color. I think this section is unconstitutional on at least two grounds.
123
(a) The Constitution gives federal courts jurisdiction over cases and controversies only. If it can be said that any case or controversy arises under this section which gives the District Court for the District of Columbia jurisdiction to approve or reject state laws or constitutional amendments, then the case or controversy must be between a State and the United States Government. But it is hard for me to believe that a justiciable controversy can arise in the constitutional sense from a desire by the United States Government or some of its officials to determine in advance what legislative provisions a State may enact or what constitutional amendments it may adopt. If this dispute between the Federal Government and the States amounts to a case or controversy it is a far cry from the traditional constitutional notion of a case or controversy as a dispute over the meaning of enforceable laws or the manner in which they are applied. And if by this section Congress has created a case or controversy, and I do not believe it has, then it seems to me that the most appropriate judicial forum for settling these important questions is this Court acting under its original Art. III, § 2, jurisdiction to try cases in which a State is a party.1 At least a trial in this Court would treat the States with the dignity to which they should be entitled as constituent members of our Federal Union.
124
The form of words and the manipulation of presumptions used in § 5 to create the illusion of a case or controversy should not be allowed to cloud the effect of that section. By requiring a State to ask a federal court to approve the validity of a proposed law which has in no way become operative, Congress has asked the State to secure precisely the type of advisory opinion our Constitution forbids. As I have pointed out elsewhere, see my dissenting opinion in Griswold v. State of Connecticut, 381 U.S. 479, 507, n. 6, pp. 513—515, 85 S.Ct. 1678, 1694, pp. 1697, 1698, 14 L.Ed.2d 510, some of those drafting our Constitution wanted to give the federal courts the power to issue advisory opinions and propose new laws to the legislative body. These suggestions were rejected. We should likewise reject any attempt by Congress to flout constitutional limitations by authorizing federal courts to render advisory opinions when there is no case or controversy before them. Congress has ample power to protect the rights of citizens to vote without resorting to the unnecessarily circuitous, indirect and unconstitutional route it has adopted in this section.
125
(b) My second and more basic objection to § 5 is that Congress has here exercised its power under § 2 of the Fifteenth Amendment through the adoption of means that conflict with the most basic principles of the Constitution. As the Court says the limitations of the power granted under § 2 are the same as the limitations imposed on the exercise of any of the powers expressly granted Congress by the Constitution. The classic formulation of these constitutional limitations was stated by Chief Justice Marshall when he said in McCulloch v. State of Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579, 'Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.' (Emphasis added.) Section 5, by providing that some of the States cannot pass state laws or adopt state constitutional amendments without first being compelled to beg federal authorities to approve their policies, so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal power almost meaningless. One of the most basic premises upon which our structure of government was founded was that the Federal Government was to have certain specific and limited powers and no others, and all other power was to be reserved either 'to the States respectively, or to the people.' Certainly if all the provisions to the King's 'transporting us beyond power of the Federal Government and reserve other power to the States are to mean anything, they mean at least that the States have power to pass laws and amend their constitutions without first sending their officials hundreds of miles away to beg federal authorities to approve them.2 Moreover, it seems to me that § 5 which gives federal officials power to veto state laws they do not like is in direct conflict with the clear command of our Constitution that 'The United States shall guarantee to every State in this Union a Republican Form of Government.' I cannot help but believe that the inevitable effect of any such law which forces any one of the States to entreat federal authorities in faraway places for approval of local laws before they can become effective is to create the impression that the State or States treated in this way are little more than conquered provinces. And if one law concerning voting can make the States plead for this approval by a distant federal court or the United States Attorney General, other laws on different subjects can force the States to seek the advance approval not only of the Attorney General but of the President himself or any other chosen members of his staff. It is inconceivable to me that such a radical degradation of state power was intended in any of the provisions of our Constitution or its Amendments. Of course I do not mean to cast any doubt whatever upon the indisputable power of the Federal Government to invalidate a state law once enacted and operative on the ground that it intrudes into the area of supreme federal power. But the Federal Government has heretofore always been content to exercise this power to protect federal supremacy by authorizing its agents to bring lawsuits against state officials once and operative state law has created an actual case and controversy. A federal law which assumes the power to compel the States to submit in advance any proposed legislation they have for approval by federal agents approaches dangerously near to wiping the States out as useful and effective units in the government of our country. I cannot agree to any constitutional interpretation that leads inevitably to such a result.
126
I see no reason to read into the Constitution meanings it did not have when it was adopted and which have not been put into it since. The proceedings of the original Constitutional Convention show beyond all doubt that the power to veto or negative state laws was denied Congress. On several occasions proposals were submitted to the convention to grant this power to Congress. These proposals were debated extensively and on every occasion when submitted for vote they were overwhelmingly rejected.3 The refusal to give Congress this extraordinary power to veto state laws was based on the belief that if such power resided in Congress the States would be helpless to function as effective governments.4 Since that time neither the Fifteenth Amendment nor any other Amendment to the Constitution has given the slightest indication of a purpose to grant Congress the power to veto state laws either by itself or its agents. Nor does any provision in the Constitution endow the federal courts with power to participate with state legislative bodies in determining what state policies shall be enacted into law. The judicial power to invalidate a law in a case or controversy after the law has become effective is a long way from the power to prevent a State from passing a law. I cannot agree with the Court that Congress—denied a power in itself to veto a state law—can delegate this same power to the Attorney General or the District Court for the District of Columbia. For the effect on the States is the same in both cases—they cannot pass their laws without sending their agents to the City of Washington to plead to federal officials for their advance approval.
127
In this and other prior Acts Congress has quite properly vested the Attorney General with extremely broad power to protect voting rights of citizens against discrimination on account of race or color. Section 5 viewed in this context is of very minor importance and in my judgment is likely to serve more as an irritant to the States than as an aid to the enforcement of the Act. I would hold § 5 invalid for the reasons stated above with full confidence that the Attorney General has ample power to give vigorous, expeditious and effective protection to the voting rights of all citizens.5
1
79 Stat. 437, 42 U.S.C. § 1973 et seq. (1964 ed., Supp. I).
2
States supporting South Carolina: Alabama, Georgia, Louisiana, Mississippi, and Virginia. States supporting the Attorney General: California, Illinois, and Massachusetts, joined by Hawaii, Indiana, Iowa, Kansas, Maine, Maryland, Michigan, Montana, New Hampshire, New Jersey, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Vermont, West Virginia, and Wisconsin.
3
See Hearings on H.R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess. (hereinafter cited as House Hearings); Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess. U.S.Code Congressional and Administrative News, p. 480 (hereinafter cited as Senate Hearings).
4
See the Congressional Record for April 22, 23, 26, 27, 28, 29, 30; May 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 26; July 6, 7, 8, 9; August 3 and 4, 1965.
5
The facts contained in these reports are confirmed, among other sources, by United States v. State of Louisiana, D.C., 225 F.Supp. 353, 363—385 (Wisdom, J.), aff'd, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709; United States v. State of Mississippi, D.C., 229 F.Supp. 925, 983—997 (dissenting opinion of Brown, J.), rev'd and rem'd, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717; United States v. State of Alabama, D.C., 192 F.Supp. 677 (Johnson, J.), aff'd, 5 Cir., 304 F.2d 583, aff'd, 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112; Comm'n on Civil Rights, Voting in Mississippi; 1963 Comm'n on Civil Rights, Rep., Voting; 1961 Comm'n on Civil Rights Rep., Voting, pt. 2; 1959 Comm'n on Civil Rights Rep., pt. 2. See generally Christopher, The Constitutionality of the Voting Rights Act of 1965, 18 Stan.L.Rev. 1; Note, Federal Protection of Negro Voting Rights, 51 Va.L.Rev. 1051.
6
16 Stat. 140.
7
16 Stat. 433.
8
28 Stat. 36.
9
The South Carolina Constitutional Convention of 1895 was a leader in the widespread movement to disenfranchise Negroes. Key, Southern Politics, 537—539. Senator Ben Tillman frankly explained to the state delegates the aim of the new literacy test: '(T)he only thing we can do as patriots and as statesmen is to take from (the 'ignorant blacks') every ballot that we can under the laws of our national government.' He was equally candid about the exemption from the literacy test for persons who could 'understand' and 'explain' a section of the state constitution: 'There is no particle of fraud or illegality in it. It is just simply showing partiality, perhaps, (laughter,) or discriminating.' He described the alternative exemption for persons paying state property taxes in the same vein: 'By means of the $300 clause you simply reach out and take in some more white men and a few more colored men.' Journal of the Constitutional Convention of the State of South Carolina 464, 469, 471 (1895). Senator Tillman was the dominant political figure in the state convention, and his entire address merits examination.
10
Prior to the Civil War, most of the slave States made it a crime to teach Negroes how to read or write. Following the war, these States rapidly instituted racial segregation in their public schools. Throughout the period, free public education in the South had barely begun to develop. See Brown v. Board of Education, 347 U.S. 483, 489—490, n. 4, 74 S.Ct. 686, 688—689, 98 L.Ed. 873; 1959 Comm'n on Civil Rights Rep. 147—151.
11
For example, see three voting suits brought against the States themselves: United States v. State of Alabama, D.C., 192 F.Supp. 677, aff'd, 5 Cir., 304 F.2d 583, aff'd, 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112; United States v. State of Louisiana, D.C., 225 F.Supp. 353, aff'd, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709; United States v. State of Mississippi, 5 Cir., 339 F.2d 679.
12
A white applicant in Louisiana satisfied the registrar of his ability to interpret the state constitution by writing, 'FRDUM FOOF SPETGH.' United States v. State of Louisiana, D.C., 225 F.Supp. 353, 384. A white applicant in Alabama who had never completed the first grade of school was enrolled after the registrar filled out the entire form for him. United States v. Penton, D.C., 212 F.Supp. 193, 210—211.
13
In Panola County, Mississippi, the registrar required Negroes to interpret the provision of the state constitution concerning 'the rate of interest on the fund known as the 'Chickasaw School Fund." United States v. Duke, 5 Cir., 332 F.2d 759, 764. In Forrest County, Mississippi, the registrar rejected six Negroes with baccalaureate degrees, three of whom were also Masters of Arts. United States v. Lynd, 5 Cir., 301 F.2d 818, 821.
14
For example, see United States v. Atkins, 5 Cir., 323 F.2d 733, 743.
15
For example, see United States v. Logue, 5 Cir., 344 F.2d 290, 292.
16
71 Stat. 634.
17
74 Stat. 86.
18
78 Stat. 241, 42 U.S.C. § 1971 (1964 ed.).
19
The Court of Appeals for the Fifth Circuit ordered the registrars of Forrect County, Mississippi, to give future Negro applicants the same assistance which white applicants had enjoyed in the past, and to register future Negro applicants despite errors which were not serious enough to disqualify white applicants in the past. The Mississippi Legislature promptly responded by requiring applicants to complete their registration forms without assistance or error, and by adding a good-morals and public-challenge provision to the registration laws. United States v. State of Mississippi, D.C., 229 F.Supp. 925, 996—997 (dissenting opinion).
20
For example, see United States v. Parker, D.C., 236 F.Supp. 511; United States v. Palmer, D.C., 230 F.Supp. 716.
21
For convenient reference, the entire Act is reprinted in an Appendix to this opinion.
22
Section 4(e) has been challenged in Morgan v. Katzenbach, D.C., 247 F.Supp. 196, prob. juris. noted, 382 U.S. 1007, 86 S.Ct. 621, and in United States v. County Bd. of Elections, D.C., 248 F.Supp. 316. Section 10(a)—(c) is involved in United States v. Texas, D.C., 252 F.Supp. 234 and in United States v. Alabama, D.C., 252 F.Supp. 95; see also Harper v. Virginia State Bd. of Elections, 382 U.S. 951, 86 S.Ct. 425, and Butts v. Harrison, 382 U.S. 806, 86 S.Ct. 94, 15 L.Ed.2d 57, which were argued together before this Court on January 25 and 26, 1966.
Coverage formula.
23
30 Fed.Reg. 9897.
24
Ibid.
25
30 Fed.Reg. 14505.
26
Alaska v. United States, Civ.Act. 101—66; Apache County v. United States, Civ.Act. 292—66; Elmore County v. United States, Civ.Act. 320—66.
Suspension of tests.
27
30 Fed.Reg. 14045—14046.
28
For a chart of the tests and devices in effect at the time the Act was under consideration, see House Hearings 30—32; Senate Report 42—43.
Review of new rules.
29
S.C.Code Ann. § 23—342 (1965 Supp.).
30
Brief for Mississippi as amicus curiae, App.
Federal examiners.
31
30 Fed.Reg. 13850.
32
30 Fed.Reg. 9970—9971, 10863, 12363, 12654, 13849—13850, 15837; 31 Fed.Reg. 914.
33
See Comm'n on Civil Rights, The Voting Rights Act (1965).
34
House Report 9—11; Senate Report 6—9.
35
House Report 13; Senate Report 52, 55.
36
House Hearings 27; Senate Hearings 201.
Coverage formula.
37
For Congress' defense of the formula, see House Report 13 14; Senate Report 13—14.
38
House Report 12; Senate Report 9—10.
39
Georgia: House Hearings 160—176; Senate Hearings 1182 1184, 1237, 1253, 1300—1301, 1336—1345. North Carolina: Senate Hearings 27—28, 39, 246—248. South Carolina: House Hearings 114 116, 196—201; Senate Hearings 1353—1354.
40
House Hearings 75—77; Senate Hearings 241—243.
41
Regarding claims against the United States, see 28 U.S.C. §§ 1491, 1346(a) (1964 ed.). Concerning suits against federal officers, see Stroud v. Benson, 4 Cir., 254 F.2d 448; H.R.Rep. No. 536, 87th Cong., 1st Sess.; S.Rep. No. 1992, 87th Cong., 2d Sess.; 28 U.S.C. § 1391(e) (1964 ed.); 2 Moore, Federal Practice 4.29 (1964 ed.).
42
House Hearings 92—93; Senate Hearings 26—27.
43
House Report 11—13; Senate Report 4—5, 9—12.
44
House Report 15; Senate Report 15—16.
45
House Report 15; Senate Report 16.
46
House Hearings 17; Senate Hearings 22—23.
Review of new rules.
47
House Report 10—11; Senate Report 8, 12.
48
House Report 16; Senate Report 15.
49
Senate Hearings 200.
50
House Report 16.
51
See Comm'n on Civil Rights, The Voting Rights Act (1965).
1
If § 14(b) of the Act by stating that no court other than the District Court for the District of Columbia shall issue a judgment under § 5 is an attempt to limit the constitutionally created original jurisdiction of this Court, then I think that section is also unconstitutional.
2
The requirement that States come to Washington to have their laws judged is reminiscent of the deeply resented practices used by the English crown in dealing with the American colonies. One of the abuses complained of most bitterly was the King's practice of holding legislative and judicial proceedings in inconvenient and distant places. The signers of the Declaration of Independence protested that the King 'has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures,' and they objected to the King's 'transporting us beyound Seas to be tried for pretended offences.' These abuses were fresh in the minds of the Framers of our Constitution and in part caused them to include in Art. 3, § 2, the provision that criminal trials 'shall be held in the State where the said Crimes shall have been committed.' Also included in the Sixth Amendment was the requirement that a defendant in a criminal prosecution be tried by a 'jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.'
3
See Debates in the Federal Convention of 1787 as reported by James Madison in Documents Illustrative of the Formation of the Union of the American States (1927), pp. 605, 789, 856.
4
One speaker expressing what seemed to be the prevailing opinion of the delegates said of the proposal, 'Will any State ever agree to be bound hand & foot in this manner. It is worse than making mere corporations of them * * *.' Id., at 604.
5
Section 19 of the Act provides as follows:
'If any provision of this Act or the application thereof to any person or circumstances is held invalid, the remainder of the Act and the application of the provision to other persons not similarly situated or to other circumstances shall not be affected thereby.'
| 12
|
383 U.S. 413
86 S.Ct. 975
16 L.Ed.2d 1
A BOOK NAMED 'JOHN CLELAND'S MEMOIRS OF A WOMAN OF PLEASURE,' et al., Appellants,v.ATTORNEY GENERAL OF the COMMONWEALTH OF MASSACHUSETTS.
No. 368.
Argued Dec. 7 and 9, 1965.
Decided March 21, 1966.
[Syllabus from pages 413-414 intentionally omitted]
Charles Rembar, New York City, for appellants.
William I. Cowin, Brookline, Mass., for appellee.
Mr. Justice BRENNAN announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and Mr. Justice FORTAS join.
1
This is an obscenity case in which Memoirs of a Woman of Pleasure (commonly known as Fanny Hill), written by John Cleland in about 1750, was adjudged obscene in a proceeding that put on trial the book itself, and not its publisher or distributor. The proceeding was a civil equity suit brought by the Attorney General of Massachusetts, pursuant to General Laws of Massachusetts, Chapter 272, §§ 28C—28H, to have the book declared obscene.1 Section 28C requires that the petition commencing the suit be 'directed against (the) book by name' and that an order to show cause 'why said book should not be judicially determined to be obscene' be published in a daily newspaper and sent by registered mail 'to all persons interested in the publication.' Publication of the order in this case occurred in a Boston daily newspaper, and a copy of the order was sent by registered mail to G. P. Putnam's Sons, alleged to be the publisher and copyright holder of the book.
2
As authorized by § 28D, G. P. Putnam's Sons intervened in the proceedings in behalf of the book, but it did not claim the right provided by that section to have the issue of obscenity tried by a jury. At the hearing before a justice of the Superior Court, which was conducted, under § 28F, 'in accordance with the usual course of proceedings in equity,' the court received the book in evidence and also, as allowed by the section, heard the testimony of experts2 and accepted other evidence, such as book reviews, in order to assess the literary, cultural, or educational character of the book. This constituted the entire evidence, as neither side availed itself of the opportunity provided by the section to introduce evidence 'as to the manner and form of its publication, advertisement, and distribution.'3 The trial justice entered a final decree, which adjudged Memoirs obscene and declared that the book 'is not entitled to the protection of the First and Fourteenth Amendments to the Constitution of the United States against action by the Attorney General or other law enforcement officer pursuant to the provisions of * * * § 28B, or otherwise.'4 The Massachusetts Supreme Judicial Court affirmed the decree. 349 Mass. 69, 206 N.E.2d 403 (1965). We noted probable jurisdiction. 382 U.S. 900, 86 S.Ct. 232, 15 L.Ed.2d 154. We reverse.5
I.
3
The term 'obscene' appearing in the Massachusetts statute has been interpreted by the Supreme Judicial Court to be as expansive as the Constitution permits: the 'statute covers all material that is obscene in the constitutional sense.' Attorney General v. The Book Named 'Tropic of Cancer,' 345 Mass. 11, 13, 184 N.E.2d 328, 330 (1962). Indeed, the final decree before us equates the finding that Memoirs is obscene within the meaning of the statute with the declaration that the book is not entitled to the protection of the First Amendment.6 Thus the sole question before the state courts was whether Memoirs satisfies the test of obscenity established in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.
4
We defined obscenity in Roth in the following terms: '(W)hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' 354 U.S., at 489, 77 S.Ct., at 1311. Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.
5
The Supreme Judicial Court purported to apply the Roth definition of obscenity and held all three criteria satisfied. We need not consider the claim that the court erred in concluding that Memoirs satisfied the prurient appeal and patent offensiveness criteria; for reversal is required because the court misinterpreted the social value criterion. The court applied the criterion in this passage:
6
'It remains to consider whether the book can be said to be 'utterly without social importance'. We are mindful that there was expert testimony, much of which was strained, to the effect that Memoirs is a structural novel with literary merit; that the book displays a skill in characterization and a gift for comedy; that it plays a part in the history of the development of the English novel; and that it contains a moral, namely, that sex with love is superior to sex in a brothel. But the fact that the testimony may indicate this book has some minimal literary value does not mean it is of any social importance. We do not interpret the 'social importance' test as requiring that a book which appeals to prurient interest and is patently offensive must be unqualifiedly worthless before it can be deemed obscene.' 349 Mass., at 73, 206 N.E.2d, at 406.
7
The Supreme Judicial Court erred in holding that a book need not be 'unqualifiedly worthless before it can be deemed obscene.' A book cannot be proscribed unless it is found to be utterly without redeeming social value. This is so even though the book is found to possess the requisite prurient appeal and to be patently offensive. Each of the three federal constitutional criteria is to be applied independently; the social value of the book can neither be weighed against nor canceled by its prurient appeal or patent offensiveness.7 Hence, even on the view of the court below that Memoirs possessed only a modicum of social value, its judgment must be reversed as being founded on an erroneous interpretation of a federal constitutional standard.
II.
8
It does not necessarily follow from this reversal that a determination that Memoirs is obscene in the constitutional sense would be improper under all circumstances. On the premise, which we have no occasion to assess, that Memoirs has the requisite prurient appeal and is patently offensive, but has only a minimum of social value, the circumstances of production, sale, and publicity are relevant in determining whether or not the publication or distribution of the book is constitutionally protected. Evidence that the book was commercially exploited for the sake of prurient appeal, to the exclusion of all other values, might justify the conclusion that the book was utterly without redeeming social importance. It is not that in such a setting the social value test is relaxed so as to dispense with the requirement that a book be utterly devoid of social value, but rather that, as we elaborate in Ginzburg v. United States, 383 U.S., pp. 470—473, 86 S.Ct., pp. 947—948, where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, a court could accept his evaluation at its face value. In this proceeding, however, the courts were asked to judge the obscenity of Memoirs in the abstract, and the declaration of obscenity was neither aided nor limited by a specific set of circumstances of production, sale, and publicity.8 All possible uses of the book must therefore be considered, and the mere risk that the book might be exploited by panderers because it so pervasively treats sexual matters cannot alter the fact—given the view of the Massachusetts court attributing to Memoirs a modicum of literary and historical value that the book will have redeeming social importance in the hands of those who publish or distribute it on the basis of that value.
9
Reversed.
10
Mr. Justice BLACK and Mr. Justice STEWART concur in the reversal for the reasons stated in their respective dissenting opinions in Ginzburg v. United States, 383 U.S., p. 476 and p. 497, 86 S.Ct., p. 950 and p. 956, and Mishkin v. State of New York, 383 U.S., p. 515 and p. 518, 86 S.Ct., p. 968, and p. 969.
11
APPENDIX TO OPINION OF MR. JUSTICE BRENNAN.
12
STATE STATUTE.
13
MASSACHUSETTS GENERAL LAWS, CHAPTER 272.
14
SECTION 28B. Whoever imports, prints, publishes, sells, loans or distributes, or buys, procures, receives, or has in his possession for the purpose of sale, loan or distribution, a book, knowing it to be obscene, indecent or impure, or whoever, being a wholesale distributor, a jobber, or publisher sends or delivers to a retail storekeeper a book, pamphlet, magazine or other form of printed or written material, knowing it to be obscene, indecent or impure, which said storekeeper had not previously ordered in writing, specifying the title and quantity of such publication he desired, shall be punished by imprisonment in the state prison for not more than five years or in a jail or house of correction for not more than two and one half years, or by a fine of not less than one hundred dollars nor more than five thousand dollars, or by both such fine and imprisonment in jail or the house of correction.
15
SECTION 28C. Whenever there is reasonable cause to believe that a book which is being imported, sold, loaned or distributed, or is in the possession of any person who intends to import, sell, loan or distribute the same, is obscene, indecent or impure, the attorney general, or any district attorney within his district, shall bring an information or petition in equity in the superior court directed against said book by name. Upon the filing of such information or petition in equity, a justice of the superior court shall, if, upon a summary examination of the book, he is of opinion that there is reasonable cause to believe that such book is obscene, indecent or impure, issue an order of notice, returnable in or within thirty days, directed against such book by name and addressed to all persons interested in the publication, sale, loan or distribution thereof, to show cause why said book should not be judicially determined to be obscene, indecent or impure. Notice of such order shall be given by publication once each week for two successive weeks in a daily newspaper published in the city of Boston and, if such information or petition be filed in any county other than Suffolk county, then by publication also in a daily newspaper published in such other county. A copy of such order of notice shall be sent by registered mail to the publisher of said book, to the person holding the copyrights, and to the author, in case the names of any such persons appear upon said book, fourteen days at least before the return day of such order of notice. After the issuance of an order of notice under the provisions of this section, the court shall, on motion of the attorney general or district attorney, make an interlocutory finding and adjudication that said book is obscene, indecent or impure, which finding and adjudication shall be of the same force and effect as the final finding and adjudication provided in section twenty-eight E or section twenty-eight F, but only until such final finding and adjudication is made or until further order of the court.
16
SECTION 28D. Any person interested in the sale, loan or distribution of said book may appear and file an answer on or before the return day named in said notice or within such further time as the court may allow, and may claim a right to trial by jury on the issue whether said book is obscene, indecent or impure.
17
SECTION 28E. If no person appears and answers within the time allowed, the court may at once upon motion of the petitioner, or of its own motion, no reason to the contrary appearing, order a general default and if the court finds that the book is obscene, indecent or impure, may make an adjudication against the book that the same is obscene, indecent and impure.
18
SECTION 28F. If an appearance is entered and answer filed, the case shall be set down for speedy hearing, but a default and order shall first be entered against all persons who have not appeared and answered, in the manner provided in section twenty-eight E. Such hearing shall be conducted in accordance with the usual course of proceedings in equity including all rights of exception and appeal. As such hearing the court may receive the testimony of experts any may receive evidence as to the literary, cultural or educational character of said book and as to the manner and form of its publication, advertisement, and distribution. Upon such hearing, the court may make an adjudication in the manner provided in said section twenty-eight E.
19
SECTION 28G. An information or petition in equity under the provisions of section twenty-eight C shall not be open to objection on the ground that a mere judgment, order or decree is sought thereby and that no relief is or could be claimed thereunder on the issue of the defendant's knowledge as to the obscenity, indecency or impurity of the book.
20
SECTION 28H. In any trial under section twenty-eight B on an indictment found or a complaint made for any offence committed after the filing of a proceeding under section twenty-eight C, the fact of such filing and the action of the court or jury thereon, if any, shall be admissible in evidence. If prior to the said offence a final decree had been entered against the book, the defendant, if the book be obscene, indecent or impure, shall be conclusively presumed to have known said book to be obscene, indecent or impure, or if said decree had been in favor of the book he shall be conclusively presumed not to have known said book to be obscene, indecent or impure, or if no final decree had been entered but a proceeding had been filed prior to said offence, the decedent shall be conclusively presumed to have had knowledge of the contents of said book.
21
Mr. Justice DOUGLAS, concurring.
22
Memoirs of a Woman of Pleasure, or, as it is often titled, Fanny Hill, concededly is an erotic novel. It was first published in about 1749 and has endured to this date, despite periodic efforts to suppress it.1 The book relates the adventures of a young girl who becomes a prostitute in London. At the end, she abandons that life and marries her first lover, observing:
23
'Thus, at length, I got sung into port, where, in the bosom of virtue, I gather'd the only uncorrupt sweets: where, looking back on the course of vice I had run, and comparing its infamous blandishments with the infinitely superior joys of innocence, I could not help pitying, even in point of taste, those who, immers'd in gross sensuality, are insensible to the so delicate charms of VIRTUE, than which even PLEASURE has not a greater friend, nor than VICE a greater enemy. Thus temperance makes men lords over those pleasures that intemperance enslaves them to: the one, parent of health, vigour, fertility, cheerfulness, and every other desirable good of life; the other, of diseases, debility, barrenness, self-loathing, with only every evil incident to human nature.
24
'* * * The paths of Vice are sometimes strew'd with roses, but then they are for ever infamous for many a thorn, for many a cankerworm: those of Virtue are strew'd with roses purely, and those eternally unfading ones.'2
25
In 1963, an American publishing house undertook the publication of Memoirs. The record indicates that an unusually large number of orders were placed by universities and libraries; the Library of Congress requested the right to translate the book into Braille. But the Commonwealth of Massachusetts instituted the suit that ultimately found its way here, praying that the book be declared obscene so that the citizens of Massachusetts might be spared the necessity of determining for themselves whether or not to read it.
26
The courts of Massachusetts found the book 'obscene' and upheld its suppression. This Court reverses, the prevailing opinion having seized upon language in the opinion of the Massachusetts Supreme Judicial Court in which it is candidly admitted that Fanny Hill has at least 'some minimal literary value.' I do not believe that the Court should decide this case on so disingenuous a basis as this. I base my vote to reverse on my view that the First Amendment does not permit the censorship of expression not brigaded with illegal action. But even applying the prevailing view of the Roth test, reversal is compelled by this record which makes clear that Fanny Hill is not 'obscene.' The prosecution made virtually no effort to prove that this book is 'utterly without redeeming social importance.' The defense, on the other hand, introduced considerable and impressive testimony to the effect that this was a work of literary, historical, and social importance.3
27
We are judges, not literary experts or historians or philosophers. We are not competent to render an independent judgment as to the worth of this or any other book, except in our capacity as private citizens. I would pair my Brother CLARK on Fanny Hill with the Universalist minister I quote in the Appendix. If there is to be censorship, the wisdom of experts on such matters as literary merit and historical significance must be evaluated. On this record, the Court has no choice but to reverse the judgment of the Massachusetts Supreme Judicial Court, irrespective of whether we would include Fanny Hill in our own libraries.
28
Four of the seven Justices of the Massachusetts Supreme Judicial Court conclude that Fanny Hill is obscene. 349 Mass. 69, 206 N.E.2d 403. Four of the seven judges of the New York Court of Appeals conclude that it is not obscene. Larkin v. G. P. Putnam's Sons, 14 N.Y.2d 399, 252 N.Y.S.2d 71, 200 N.E.2d 760. To outlaw the book on such a voting record would be to let majorities rule where minorities were thought to be supreme. The Constitution forbids abridgment of 'freedom of speech, or of the press.' Censorship is the most notorious form of abridgment. It substitutes majority rule where minority tastes or viewpoints were to be tolerated.
29
It is to me inexplicable how a book that concededly has social worth can nonetheless be banned because of the manner in which it is advertised and sold. However florid its cover, whatever the pitch of its advertisements, the contents remain the same.
30
Every time an obscenity case is to be argued here, my office is flooded with letters and postal cards urging me to protect the community or the Nation by striking down the publication. The messages are often identical even down to commas and semicolons. The inference is irresistible that they were all copied from a school or church blackboard. Dozens of postal cards often are mailed from the same precinct. The drives are incessant and the pressures are great. Happily we do not bow to them. I mention them only to emphasize the lack of popular understanding of our constitutional system. Publications and utterances were made immune from majoritarian control by the First Amendment, applicable to the States by reason of the Fourteenth. No exceptions were made, not even for obscenity. The Court's contrary conclusion in Roth, where obscenity was found to be 'outside' the First Amendment, is without justification.
31
The extent to which the publication of 'obscenity' was a crime at common law is unclear. It is generally agreed that the first reported case involving obscene conduct is The King v. Sir Charles Sedley.4 Publication of obscene literature, at first thought to be the exclusive concern of the ecclesiastical courts,5 was not held to constitute an indictable offense until 1727.6 A later case involved the publication of an 'obscene and impious libel' (a bawdy parody of Pope's 'Essay on Man') by a member of the House of Commons.7 On the basis of these few cases, one cannot say that the common-law doctrines with regard to publication of obscenity were anything but uncertain. 'There is no definition of the term. There is no basis of identification. There is no unity in describing what is obscene literature, or in prosecuting it. There is little more than the ability to smell it.' Alpert, Judicial Censorship of Obscene Literature, 52 Harv.L.Rev. 40, 47 (1938).
32
But even if the common law had been more fully developed at the time of the adoption of the First Amendment, we would not be justified in assuming that the Amendment left the common law unscathed. In Bridges v. State of California, 314 U.S. 252, 264, 62 S.Ct. 190, 194, 86 L.Ed. 192, we said:
33
'(T)o assume that English common law in this field became ours is to deny the generally accepted historical belief that 'one of the objects of the Revolution was to get rid of the English common law on liberty of speech an of the press.' Schofield, Freedom of the Press in the United States, 9 Publications Amer.Sociol.Soc. 67, 76.
34
'More specifically, it is to forget the environment in which the First Amendment was ratified. In presenting the proposals which were later embodied in the Bill of Rights, James Madison, the leader in the preparation of the First Amendment, said: 'Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body (Parliament), the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British Constitution."
35
And see Grosjean v. American Press Co., 297 U.S. 233, 248 249, 56 S.Ct. 444, 448—449, 80 L.Ed. 660.
36
It is true, as the Court observed in Roth, that obscenity laws appeared on the books of a handful of States at the time the First Amendment was adopted.8 But the First Amendment was, until the adoption of the Fourteenth, a restraint only upon federal power. Moreover, there is an absence of any federal cases or laws relative to obscenity in the period immediately after the adoption of the First Amendment. Congress passed no legislation relating to obscenity until the middle of the nineteenth century.9 Neither reason nor history warrants exclusion of any particular class of expression from the protection of the First Amendment on nothing more than a judgment that it is utterly without merit. We faced the difficult questions the First Amendment poses with regard to libel in New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 720, 11 L.Ed.2d 686, where we recognized that 'libel can claim no talismanic immunity from constitutional limitations.' We ought not to permit fictionalized assertions of constitutional history to obscure those questions here. Were the Court to undertake that inquiry, it would be unable, in my opinion, to escape the conclusion that no interest of society with regard to suppression of 'obscene' literature could override the First Amendment to justify censorship.
37
The censor is always quick to justify his function in terms that are protective of society. But the First Amendment, written in terms that are absolute, deprives the States of any power to pass on the value, the propriety, or the morality of a particular expression. Cf. Kingsley Int'l Pictures Corp. v. Regents of University, 360 U.S. 684, 688—689, 79 S.Ct. 1362, 1365—1366, 3 L.Ed.2d 1512; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098. Perhaps the most frequently assigned justication for censorship is the belief that erotica produce antisocial sexual conduct. But that relationship has yet to be proven.10 Indeed, if one were to make judgments on the basis of speculation, one might guess that literature of the most pornographic sort would, in many cases, provide a substitute—not a stimulus—for antisocial sexual conduct. See Murphy, The Value of Pornography, 10 Wayne L.Rev. 655, 661 and n. 19 (1964). As I read the First Amendment, judges cannot gear the literary diet of an entire nation to whatever tepid stuff is incapable of triggering the most demented mind. The First Amendment demands more than a horrible example or two of the perpetrator of a crime of sexual violence, in whose pocket is found a pornographic book, before it allows the Nation to be saddled with a regime of censorship.11
38
Whatever may be the reach of the power to regulate conduct, I stand by my view in Roth v. United States, supra, that the First Amendment leaves no power in government over expression of ideas.
39
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS, CONCURRING.
40
DR. PEALE AND FANNY HILL.
41
An Address by Rev. John R. Graham, First Universalist Church of Denver.
42
December 1965.
43
At the present point in the twentieth century, it seems to me that there are two books which symbolize the human quest for what is moral. Sin, Sex and Self-Control by Dr. Norman Vincent Peale, the well-known clergyman of New York City, portrays the struggle of contemporary middle-class society to arrive at a means of stabilizing behavior patterns. At the same time, there is a disturbing book being sold in the same stores with Dr. Peale's volume. It is a seventeenth century English novel by John Cleland and it is known as Fanny Hill: The Memoirs of a Woman of Pleasure.
44
Quickly, it must be admitted that it appears that the two books have very little in common. One was written in a day of scientific and technological sophistication, while the other is over two hundred years old. One is acclaimed in the pulpit, while the other is protested before the United States Supreme Court. Sin, Sex and Self-Control is authored by a Christian pastor, while Fanny Hill represents thoughts and experiences of a common prostitute. As far as the general public seems to be concerned, one is moral and the other is hopelessly immoral. While Dr. Peale is attempting to redeem the society, most people believe that Fanny Hill can only serve as another instance in an overall trend toward an immoral social order. Most parents would be pleased to find their children reading a book by Dr. Peale, but I am afraid that the same parents would be sorely distressed to discover a copy of Fanny Hill among the school books of their offspring.
45
Although one would not expect to find very many similarities between the thoughts of a pastor and those of a prostitute, the subject matter of the two books is, in many ways, strangely similar. While the contents are radically different, the concerns are the same. Both authors deal with human experience. They are concerned with people and what happens to them in the world in which they live each day. But most significantly of all, both books deal with the age-old question of 'What is moral?' I readily admit that this concern with the moral is more obvious in Dr. Peale's book than it is in the one by John Cleland. The search for the moral in Fanny Hill is clothed in erotic passages which seem to equate morality with debauchery as far as the general public is concerned. At the same time, Dr. Peale's book is punctuated with such noble terms as 'truth,' 'love,' and 'honesty.'
46
These two books are not very important in themselves. They may or may not be great literature. Whether they will survive through the centuries to come is a question, although John Cleland has an historical edge on Norman Vincent Peale! However, in a symbolic way they do represent the struggle of the moral quest and for this reason they are important.
47
Dr. Peale begins his book with an analysis of contemporary society in terms of the moral disorder which is more than obvious today. He readily admits that the traditional Judeo-Christian standards of conduct and behavior no longer serve as strong and forceful guides. He writes:
48
'For more than forty years, ever since my ordination, I had been preaching that if a person would surrender to Jesus Christ and adopt strong affirmative attitudes toward life he would be able to live abundantly and triumphantly. I was still absolutely convinced that this was true. But I was also bleakly aware that the whole trend in the seventh decade of the twentieth century seemed to be away from the principles and practices of religion—not toward them.' (Page 1.)
49
Dr. Peale then reflects on the various changes that have taken place in our day and suggests that although he is less than enthusiastic about the loss of allegiance to religion, he is, nevertheless, willing to recognize that one cannot live by illusion.
50
After much struggle, Dr. Peale then says that he was able to develop a new perspective on the current moral dilemma of our times. What first appeared to be disaster was really opportunity. Such an idea, coming from him, should not be very surprising, since he is more or less devoted to the concept of 'positive thinking!' He concludes that our society should welcome the fact that the old external authorities have fallen. He does not believe that individuals should ever be coerced into certain patterns of behavior.
51
According to Dr. Peale, we live in a day of challenge. Our society has longed for a time when individuals would be disciplined by self-control, rather than being motivated by external compunction. Bravely and forthrightly, he announces that the time has now come when self-control can and must replace external authority. He is quick to add that the values contained in the Judeo-Christian tradition and 'the American way of life' must never be abandoned for they emanate from the wellsprings of 'Truth.' What has previously been only an external force must now be internalized by individuals.
52
In many ways, Dr. Peale's analysis of the social situation and the solution he offers for assisting the individual to stand against the pressures of the times, come very close to the views of Sigmund Freud. He felt that society could and would corrupt the individual and, as a result, the only sure defense was a strong super-ego or conscience. This is precisely what Dr. Peale recommends.
53
Interestingly enough John Cleland, in Fanny Hill, is concerned with the same issues. Although the question of moral behavior is presented more subtly in his book, the problem with which he deals is identical. There are those who contend that the book is wholly without redeeming social importance. They feel that it appeals only to prurient interests.
54
I firmly believe that Fanny Hill is a moral, rather than an immoral, piece of literature. In fact, I will go as far as to suggest that it represents a more significant view of morality than is represented by Dr. Peale's book Sin, Sex and Self-Control. As is Dr. Peale, Cleland is concerned with the nature of the society and the relationship of the individual to it. Fanny Hill appears to me to be an allegory. In th story, the immoral becomes the moral and the unethical emerges as the ethical. Nothing is more distressing than to discover that what is commonly considered to be evil may, in reality, demonstrate characteristics of love and concern.
55
There is real irony in the fact that Fanny Hill, a rather naive young girl who becomes a prostitute, finds warmth, understanding and the meaning of love and faithfulness amid surroundings and situations which the society, as a whole, condemns as debased and depraved. The world outside the brothel afirms its faith in the dignity of man, but people are often treated as worthless and unimportant creatures. However, within the world of prostitution, Fanny Hill finds friendship, understanding, respect and is treated as a person of value. When her absent lover returns, she is not a lost girl of the gutter. One perceives that she is a whole and healthy person who has discovered the ability to love and be loved in a brothel.
56
I think Cleland is suggesting that one must be cautious about what is condemned and what is held in honor. From Dr. Peale's viewpoint, the story of Fanny Hill is a tragedy because she did not demonstrate self-control. She refused to internalize the values inherent in the Judeo-Christian tradition andthe catalog of sexual scenes in the book, fifty-two in all, are a symbol of the debased individual and the society in which he lives.
57
Dr. Peale and others, would be correct in saying that Fanny Hill did not demonstrate self-control. She did, however, come to appreciate the value of self-expression. At no time were her 'clients' looked upon as a means to an end. She tried and did understand them and she was concerned about them as persons. When her lover, Charles, returned she was not filled with guilt and remorse. She accepted herself as she was and was able to offer him her love and devotion.
58
I have a feeling that many people fear the book Fanny Hill, not because of its sexual scenes, but because the author raises serious question with the issue of what is moral and what is immoral. He takes exception to the idea that repression and restraint create moral individuals. He develops the thought that self-expression is more human than self-control. And he dares to suggest that, in a situation which society calls immoral and debased, a genuine love and respect for life and for people, as human beings, can develop. Far from glorifying vice, John Cleland points an accusing finger at the individual who is so certain as to what it means to be a moral man.
59
There are those who will quickly say that this 'message' will be missed by the average person who reads Fanny Hill. But this is precisely the point. We become so accustomed to pre-judging what is ethical and what is immoral that we are unable to recognize that what we accept as good may be nothing less than evil because it harms people.
60
I know of no book which more beautifully describes meaningful relationships between a man and a woman than does Fanny Hill. In many marriages, men use a woman for sexual gratification and otherwise, as well as vice versa. But this is not he case in the story of Fanny Hill. The point is simply that there are many, many ways in which we hurt, injure and degrade people that are far worse than either being or visiting a prostitute. We do this all in the name of morality.
61
At the same time that Dr. Peale is concerned with sick people, John Cleland attempts to describe healthy ones. Fanny Hill is a more modern and certainly more valuable book than Sin, Sex and Self-Control because the author does not tell us how to behave, but attempts to help us understand ourselves and the nature of love and understanding in being related to other persons. Dr. Peale's writing emphasizes the most useful commodities available to man—self-centeredness and self-control. John Cleland suggests that self-understanding and self-expression may not be as popular, but they are more humane.
62
The 'Peale approach' to life breeds contentment, for it suggests that each one of us can be certain as to what is good and true. Standards for thinking and behavior are available and all we need to do is appropriate them for our use. In a day when life is marked by chaos and confusion, this viewpoint offers much in the way of comfort and satisfaction. There is only one trouble with it, however, and that is that it results in conformity, rigid behavior and a lack of understanding. It results in personality configurations that are marked with an intense interest in propositions about Truth and Right but, at the same time, build a wall against people. Such an attitude creates certainty, but there is little warmth. The idea develops that there are 'my kind of people' and they are 'right.' It forces us to degrade, dismiss and ultimately attempt to destroy anyone who does not agree with us.
63
To be alive and sensitive to life means that we have to choose what we want. There is no possible way for a person to be a slave and free at the same time. Self-control and self-expression are at opposite ends of the continuum. As much as some persons would like to have both, it is necessary to make a choice, since restraint and openness are contradictory qualities. To internalize external values denies the possibility of self-expression. We must decide what we want, when it comes to conformity and creativity. If we want people to behave in a structured and predictable manner, then the ideal of creativity cannot have meaning.
64
Long ago Plato said, 'What is honored in a country * * * will be cultivated there.' More and more, we reward people for thinking alike and as a result, we become frightened, beyond belief, of those who take exception to the current consensus. If our society collapses, it will not be because people read a book such as Fanny Hill. It will fall, because we will have refused to understand it. Decadence, in a nation or an individual, arises not because there is a lack of ability to distinguish between morality and immorality, but because the opportunity for self-expression has been so controlled or strangled that the society or the person becomes a robot.
65
The issue which a Dr. Peale will never understand, because he is a victim of it himself and which John Cleland describes with brilliant clarity and sensitive persuasion is that until we learn to respect ourselves enough that we leave each other alone, we cannot discover the meaning of morality.
66
Dr. Peale and Fanny Hill offer the two basic choices open to man. Man is free to choose an autocentric existence which is marked by freedom from ambiguity and responsibility. Autocentricity presupposes a 'closed world' where life is predetermined and animal-like. In contrast to this view, there is the allocentric outlook which is marked by an 'open encounter of the total person with the world.' Growth, spontaneity and expression are the goals of such an existence.
67
Dr. Peale epitomizes the autocentric approach. He offers 'warm blankets' and comfortable 'cocoons' for those who want to lose their humanity. On the other hand, Fanny Hill represents the allocentric viewpoint which posits the possibility for man to raise his sights, stretch his imagination, cultivate his sensitiveness as well as deepen ad broaden his perspectives. In discussing the autocentric idea, Floyd W. Matson writes,
68
'Human beings conditioned to apathy and affluence may well prefer this regressive path of least resistance with its promise of escape from freedom and an end to striving. But we know at least that it is open to them to choose otherwise: in a word, to choose themselves.' (The Broken Image, page 193.)
69
In a day when people are overly sensitive in drawing lines between the good and the bad, the right and the wrong, as well as the true and the false, it seems to me that there is great irony in the availability of a book such as Fanny Hill. Prostitution may be the oldest profession in the world, but we are ever faced with a question which is becoming more and more disturbing: 'What does a prostitute look like?'
70
Mr. Justice CLARK, dissenting.
71
It is with regret that I write this dissenting opinion. However, the public should know of the continuous flow of pornographic material reaching this Court and the increasing problem States have in controlling it. Memoirs of a Woman of Pleasure, the book involved here, is typical. I have 'stomached' past cases for almost 10 years without much outcry. Though I am not known to be a purist—or a shrinking violet—this book is too much even for me. It is important that the Court has refused to declare it obscene and thus affords it further circulation. In order to give my remarks the proper setting I have been obliged to portray the book's contents, which causes me embarrassment. However, quotations from typical episodes would so debase our Reports that I will not follow that course.
72
* Let me first pinpoint the effect of today's holding in the obscenity field. While there is no majority opinion in this case, there are three Justices who import a new test into that laid down in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), namely, that '(a) book cannot be proscribed unless it is found to be utterly without redeeming social value.' I agree with my Brother WHITE that such a condition rejects the basic holding of Roth and gives the smut artist free rein to carry on his dirty business. My vote in that case—which was the deciding one for the majority opinion—was cast solely because the Court declared the test of obscenity to be: 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' I understand that test to include only two constitutional requirements: (1) the book must be judged as a whole, not by its parts; and (2) it must be judged in terms of its appeal to the prurient interest of the average person, applying contemporary community standards.1 Indeed, obscenity was denoted in Roth as having 'such slight social value as a step to truth that any benefit that may be derived * * * is clearly outweighed by the social interest in order and morality * * *.' At 485, 77 S.Ct. at 1309 (quoting Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942)). Moreover, in no subsequent decision of this Court has any 'utterly without redeeming social value' test been suggested, much less expounded. My Brother Harlan in Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962), made no reference whatever to such a requirement in Roth. Rather he interpreted Roth as including a test of 'patent offensiveness' besides 'prurient appeal.' Nor did my Brother Brennan in his concurring opinion in Manual Enterprises mention any 'utterly without redeeming social value' test. The first reference to such a test was made by my Brother Brennan in Jacobellis v. State of Ohio, 378 U.S. 184, 191, 84 S.Ct. 1676, 1680, 12 L.Ed.2d 793 (1964), seven years after Roth. In an opinion joined only by Justice Goldberg, he there wrote: 'Recognizing that the test for obscenity enunciated (in Roth) * * * is not perfect, we think any substitute would raise equally difficult problems, and we therefore adhere to that standard.' Nevertheless, he proceeded to add:
73
'We would reiterate, however, our recognition in Roth that obscenity is excluded from the constitutional protection only because it is 'utterly without redeeming social importance,' * * *.' This language was then repeated in the converse to announce this non sequitur:
74
'It follows that material dealing with sex in a manner that advocates ideas * * * or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection.' At 191, 84 S.Ct., at 1680.
75
Significantly no opinion in Jacobellis, other than that of my Brother Brennan, mentioned the 'utterly without redeeming social importance' test which he there introduced into our many and varied previous opinions in obscenity cases. Indeed, rather than recognizing the 'utterly without social importance' test, The Chief Justice in his dissent in Jacobellis, which I joined, specifically stated:
76
'In light of the foregoing, I would reiterate my acceptance of the rule of the Roth case: Material is obscene and not constitutionally protected against regulation and proscription if 'to the average person applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." (Emphasis added.) At 202, 84 S.Ct. at 1685.
77
The Chief Justice and I further asserted that the enforcement of this rule should be committed to the state and federal courts whose judgments made pursuant to the Roth rule we would accept, limiting our review to a consideration of whether there is 'sufficient evidence' in the record to support a finding of obscenity. At 202, 84 S.Ct. at 1685.
II.
78
Three members of the majority hold that reversal here is necessary solely because their novel 'utterly without redeeming social value' test was not properly interpreted or applied by the Supreme Judicial Court of Massachusetts. Massachusetts now has to retry the case although the 'Findings of Fact, Rulings of Law and Order for Final Decree' of the trial court specifically held that 'this book is 'utterly without redeeming social importance' in the fields of art, literature, science, news or ideas of any social importance and that it is obscene, indecent and impure.' I quote portions of the findings:
79
'Opinions of experts are admitted in evidence to aid the Court in its understanding and comprehension of the facts, but, of course, an expert cannot usurp the function of the Court. Highly artificial, stylistic writing and an abundance of metaphorical descriptions are contained in the book but the conclusions of some experts were pretty well strained in attempting to justify its claimed literary value: such as the book preached a moral that sex with love is better than sex without love, when Fanny's description of her sexual acts, particularly with the young boy she seduced, in Fanny's judgment at least, was to the contrary. Careful review of all the expert testimony has been made, but, the best evidence of all, is the book itself and it plainly has no value because of ideas, news or artistic, literary or scientific attributes. * * * Nor does it have any other merit. 'This Court will not adopt a rule of law which states obscenity is suppressible but well written obscenity is not.' Mr. Justice Scileppi in People v. Fritch, 13 N.Y.2d 119 (243 N.Y.S.2d 1, 192 N.E.2d 713).' (Emphasis added.) Finding 20.
80
None of these findings of the trial court were overturned on appeal, although the Supreme Judicial Court of Massachusetts observed in addition that 'the fact that the testimony may indicate this book has some minimal literary value does not mean it is of any social importance. We do not interpret the 'social importance' test as requiring that a book which appeals to prurient interest and is patently offensive must be unqualifiedly worthless before it can be deemed obscene.' My Brother BRENNAN reverses on the basis of this casual statement, despite the specific findings of the trial court. Why, if the statement is erroneous, Brother BRENNAN does not affirm the holding of the trial court which beyond question is correct, one cannot tell. This course has often been followed in other cases.
81
In my view evidence of social importance is relevant to the determination of the ultimate question of obscenity. But social importance does not constitute a separate and distinct constitutional test. Such evidence must be considered together with evidence that the material in question appeals to prurient interest and is patently offensive. Accordingly, we must first turn to the book here under attack. I repeat that I regret having to depict the sordid episodes of this book.
III.
82
Memoirs is nothing more than a series of minutely and vividly described sexual episodes. The book starts with Fanny Hill, a young 15-year-old girl, arriving in London to seek household work. She goes to an employment office where through happenstance she meets the mistress of a bawdy house. This takes 10 pages. The remaining 200 pages of the book detail her initiation into various sexual experiences, from a lesbian encounter with a sister prostitute to all sorts and types of sexual debauchery in bawdy houses and as the mistress of a variety of men. This is presented to the reader through an uninterrupted succession of descriptions by Fanny, either as an observer or participant, of sexual adventures so vile that one of the male expert witnesses in the case was hesitant to repeat any one of them in the courtroom. These scenes run the gamut of possible sexual experience such as lesbianism, female masturbation, homosexuality between young boys, the destruction of a maidenhead with consequent gory descriptions, the seduction of a young virgin boy, the flagellation of male by female, and vice versa, followed by fervid sexual engagement, and other abhorrent acts, including over two dozen separate bizarre descriptions of different sexual intercourses between male and female characters. In one sequence four girls in a bawdy house are required in the presence of one another to relate the lurid details of their loss of virginity and their glorification of it. This is followed the same evening by 'publick trials' in which each of the four girls engages in sexual intercourse with a different man while the others witness, with Fanny giving a detailed description of the movement and reaction of each couple.
83
In each of the sexual scenes the exposed bodies of the participants are described in minute and individual detail. The pubic hair is often used for a background to the most vivid and precise descriptions of the response, condition, size, shape, and color of the sexual organs before, during and after orgasms. There are some short transitory passages between the various sexual episodes, but for the most part they only set the scene and identify the participants for the next orgy, or make smutty reference and comparison to past episodes.
84
There can be no doubt that the whole purpose of the book is to arouse the prurient interest. Likewise the repetition of sexual episode after episode and the candor with which they are described renders the book 'patently offensive.' These facts weigh heavily in any appraisal of the book's claims to 'redeeming social importance.'
85
Let us now turn to evidence of the book's alleged social value. While unfortunately the State offered little testimony,2 the defense called several experts to attest that the book has literary merit and historical value. A careful reading of testimony, however, reveals that it has no substance. For example, the first witness testified:
86
'I think it is a work of art * * * it asks for and receives a literary response * * * presented in an orderly and organized fashion, with a fictional central character, and with a literary style * * *. I think the central character is * * * what I call an intellectual * * * someone who is extremely curious about life and who seeks * * * to record with accuracy the details of the external world, physical sensations, psychological responses * * * an empiricist * * *. I find that this tells me things * * * about the 18th century that I might not otherwise know.'
87
If a book of art is one that asks for and receives a literary response, Memoirs is no work of art. The sole response evoked by the book is sensual. Nor does the orderly presentation of Memoirs make a difference; it presents nothing but lascivious scenes organized solely to arouse prurient interest and produce sustained erotic tension.3 Certainly the book's baroque style cannot vitiate the determination of obscenity. From a legal standpoint, we must remember that obscenity is no less obscene though it be expressed in 'elaborate language.' Indeed, the more meticulous its presentation, the more it appeals to the prurient interest. To say that Fanny is an 'intellectual' is an insult to those who travel under that tag. She was nothing but a harlot—a sensualist—exploiting her sexual attractions which she sold for fun, for money, for lodging and keep, for an inheritance, and finally for a husband. If she was curious about life, her curiosity extended only to the pursuit of sexual delight wherever she found it. The book describes nothing in the 'external world' except bawdy houses and debaucheries. As an empiricist, Fanny confines her observations and 'experiments' to sex, with primary attention to depraved, lewd, and deviant practices.
88
Other experts produced by the defense testified that the book emphasizes the profound 'idea that a sensual passion is only truly experienced when it is associated with the emotion of love' and that the sexual relationship 'can be a wholesome, healthy, experience itself,' whereas in certain modern novels 'the relationship between the sexes is seen as another manifestation of modern decadence, insterility or perversion.' In my view this proves nothing as to social value. The state court properly gave such testimony no probative weight. A rview offered by the defense noted that 'where 'pornography' does not brutalize, it idealizes. The book is, in this sense, an erotic fantasy—and a male fantasy, at that, put into the mind of a woman. The male organ is phenomenal to the point of absurdity.' Finally, it saw the book as 'a minor fantasy, deluding as a guide to conduct, but respectful of our delight in the body * * * an interesting footnote in the history of the English novel.' These unrelated assertions reveal to me nothing whatever of literary, historical, or social value. Another review called the book 'a great novel * * * one which turns its convention upside down * * *.' Admittedly Cleland did not attempt 'high art' because he was writing 'an erotic novel. He can skip the elevation and get on with the erections.' Fanny's 'downfall' is seen as 'one long delightful swoon into the depths of pleasurable sensation.' Rather than indicating social value in the book, this evidence reveals just the contrary. Another item offered by the defense described Memoirs as being 'widely accredited as the first deliberately dirty novel in English.' However, the reviewer found Fanny to be 'no common harlot. Her 'Memoirs' combine literary grace with a disarming enthusiasm for an activity which is, after all, only human. What is more, she never uses a dirty word.' The short answer to such 'expertise' is that none of these so-called attributes have any value to society. On the contrary, they accentuate the prurient appeal.
89
Another expert described the book as having 'detectable literary merit' since it reflects 'an effort to interpret a rather complex character * * * going through a number of very different adventures.' To illustrate his assertion that the 'writing is very skillfully done' this expert pointed to the description of a whore, 'Phoebe, who is 'red-faced, fat and in her early 50's, who waddles into a room.' She doesn't walk in, she waddles in.' Given this standard for 'skillful writing,' it is not surprising that he found the book to have merit.
90
The remaining experts testified in the same manner, claiming the book to be a 'record of the historical, psychological, (and) social events of the period.' One has but to read the history of the 18th century to disprove this assertion. The story depicts nothing besides the brothels that are present in metropolitan cities in every period of history. One expert noticed 'in this book a tendency away from nakedness during the sexual act which I find an interesting sort of sociological observation' on tastes different from contemporary ones. As additional proof, he marvels that Fanny 'refers constantly to the male sexual organ as an engine * * * which is pulling you away from the way these events would be described in the 19th or 20th century.' How this adds social value to the book is beyond my comprehension. It only indicates the lengths to which these experts go in their effort to give the book some semblance of value. For example, the ubiquitous descriptions of sexual acts are excused as being necessary in tracing the 'moral progress' of the heroine, and the giving of a silver watch to a servant is found to be 'an odd and interesting custom that I would like to know more about.' This only points up the bankruptcy of Memoirs in both purpose and content, adequately justifying the trial court's finding that it had absolutely no social value.
91
It is, of course, the duty of the judge or the jury to determine the question of obscenity, viewing the book by contemporary community standards. It can accept the appraisal of experts or discount their testimony in the light of the material itself or other relevant testimony. Socalled 'literary obscenity,' i.e., the use of erotic fantasies of the hard-core type clothed in an engaging literary style has no constitutional protection. If a book deals solely with erotic material in a manner calculated to appeal to the prurient interest, it matters not that it may be expressed in beautiful prose. There are obviously dynamic connections between art and sex—the emotional, intellectual, and physical—but where the former is used solely to promote prurient appeal, it cannot claim constitutional immunity. Cleland uses this technique to promote the prurient appeal of Memoirs. It is true that Fanny's perverse experiences finally bring from her the observation that 'the heights of (sexual) enjoyment cannot be achieved until true affection prepares the bed of passion.' But this merely emphasizes that sex, wherever and however found, remains the sole theme of Memoirs. In my view, the book's repeated and unrelieved appeals to the prurient interest of the average person leave it utterly without redeeming social importance.
IV.
92
In his separate concurrence, by Brother DOUGLAS asserts there is no proof that obscenity produces anti-social conduct. I had thought that this question was foreclosed by the determination in Roth that obscenity was not protected by the First Amendment. I find it necessary to comment upon Brother DOUGLAS' views, however, because of the new requirement engrafted upon Roth by Brother BRENNAN, i.e., that material which 'appeals to a prurient interest' and which is 'patently offensive' may still not be suppressed unless it is 'utterly without redeeming social value.' The question of anti-social effect thus becomes relevant to the more limited question of social value. Brother BRENNAN indicates that the social importance criterion encompasses only such things as the artistic, literary, and historical qualities of the material. But the phrasing of the 'utterly without redeeming social value' test suggests that other evidence must be considered. To say that social value may 'redeem' implies that courts must balance alleged esthetic merit against the harmful consequences that may flow from pornography. Whatever the scope of the social value criterion—which need not be defined with precision of fact will weigh evidence of the material's influence in causing deviant or criminal conduct, particularly sex crimes, as well as its effect upon the mental, moral, and physical health of the average person. Brother DOUGLAS' view as to the lack of proof in this area is not so firmly held among behavioral scientists as he would lead us to believe. For this reason, I should mention that there is a division of thought on the correlation between obscenity and socially deleterious behavior.
93
Psychological and physiological studies clearly indicate that many persons become sexually aroused from reading obscene material.4 While erotic stimulation caused by pornography may be legally insignificant in itself, there are medical experts who believe that such stimulation frequently manifests itself in criminal sexual behavior or other antisocial conduct.5 For example, Dr. George W. Henry of Cornell University has expressed the opinion that obscenity, with its exaggerated and morbid emphasis on sex, particularly abnormal and perverted practices, and its unrealistic presentation of sexual behavior and attitudes, may induce antisocial conduct by the average person.6 A number of sociologists think that this material may have adverse effects upon individual mental health, with potentially disruptive consequences for the community.7
94
In addition, there is persuasive evidence from criminologists and police officials. Inspector Herbert Case of the Detroit Police Department contends that sex murder cases are invariably tied to some form of obscene literature.8 And the Director of the Federal Bureau of Investigation, J. Edgar Hoover, has repeatedly emphasized that pornography is associated with an overwhelmingly large number of sex crimes. Again, while the correlation betweenpossession of obscenity and deviant behavior has not been conclusively established, the files of our law enforcement agencies contain many reports of persons who patterned their criminal conduct after behavior depicted in obscene material.9
95
The clergy are also outspoken in their belief that pornography encourages violence, degeneracy and sexual misconduct. In a speech reported by the New York Journal-American August 7, 1964, Cardinal Spellman particularly stressed the direct influence obscenity has on immature persons. These and related views have been confirmed by practical experience. After years of service with the West London Mission, Rev. Donald Soper found that pornography was a primary cause of prostitution. Rolph, Does Pornography Matter? (1961), pp. 47—48.10
96
Congress and the legislatures of every State have enacted measures to restrict the distribution of erotic and pornographic material,11 justifying these controls by reference to evidence that antisocial behavior may result in part from reading obscenity.12 Likewise, upon another trial, the parties may offer this sort of evidence along with other 'social value' characteristics that they attribute to the book.
97
But this is not all that Massachusetts courts might consider. I believe it can be established that the book 'was commercially exploited for the sake of prurient appeal, to the exclusion of all other values' and should therefore be declared obscene under the test of commercial exploitation announced today in Ginzburg and Mishkin.
98
As I have stated, my study of Memoirs leads me to think that it has no conceivable 'social importance.' The author's obsession with sex, his minute descriptions of phalli, and his repetitious accounts of bawdy sexual experiences and deviant sexual behavior indicate the book was designed solely to appeal to prurient interests. In addition, the record before the Court contains extrinsic evidence tending to show that the publisher was fully aware that the book attracted readers desirous of vicarious sexual pleasure, and sought to profit solely from its prurient appeal. The publisher's 'Introduction' recites that Cleland, a 'never-do-well bohemian,' wrote the book in 1749 to make a quick 20 guineas. Thereafter, various publications of the book, often 'embellished with fresh inflammatory details' and 'highly exaggerated illustrations,' appeared in 'surreptitious circulation.' Indeed, the cover of Memoirs tempts the reader with the announcement that the sale of the book has finally been permitted 'after 214 years of suppression.' Although written in a sophisticated tone, the 'Introduction' repeatedly informs the reader that he may expect graphic descriptions of genitals and sexual exploits. For instance, it states:
99
'Here and there, Cleland's descriptions of lovemaking are marred by what perhaps could be best described as his adherence to the 'longitudinal fallacy'—the formidable bodily equipment of his most accomplished lovers is apt to be described with quite unnecessary relish * * *.'
100
Many other passages in the 'Introduction' similarly reflect the publisher's 'own evaluation' of the book's nature. The excerpt printed on the jacket of the hardcover edition is typical:
101
'Memoirs of a Woman of Pleasure is the product of a luxourious and licentious, but not a commercially degraded, era. * * * For all its abounding improprieties, his priapic novel is not a vulgar book. It treats of pleasure as the aim and end of existence, and of sexual satisfaction as the epitome of pleasure, but does so in a style that, despite its inflammatory subject, never stoops to a gross or unbecoming word.'
102
Cleland apparently wrote only one other book, a sequel called Memoirs of a Cox-comb, published by Lancer Books, Inc. The 'Introduction' to that book labels Memoirs of a Woman of Pleasure as 'the most sensational piece of erotica in English literature.' I daresay that this fact alone explains why G. P. Putnam's Sons published this obscenity—preying upon prurient and carnal proclivities for its own pecuniary advantage. I would affirm the judgment.
103
Mr. Justice HARLAN, dissenting.
104
The central development that emerges from the aftermath of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, is that no stable approach to the obscenity problem has yet been devised by this Court. Two Justices believe that the First and Fourteenth Amendments absolutely protect obscene and nonobscene material alike. Another Justice believes that neither the States nor the Federal Government may suppress any material save for 'hard-core pornography.' Roth in 1957 stressed prurience and utter lack of redeeming social importance;1 as Roth has been expounded in this case, in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, and in Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, it has undergone significant transformation. The concept of 'pandering,' emphasized by the separate opinion of The Chief Justice in Roth, now emerges as an uncertain gloss or interpretive aid, and the further requisite of 'patent offensiveness' has been made explicit as a result of intervening decisions. Given this tangled state of affairs, I feel free to adhere to the principles first set forth in my separate opinion in Roth, 354 U.S., at 496, 77 S.Ct., at 1315, which I continue to believe represent the soundest constitutional solution to this intractable problem. book, a sequel called Memoirs of a Coxcomb, standards, I find no occasion to consider the place of 'redeeming social importance' in the majority opinion in Roth, an issue which further divides the present Court.
105
My premise is that in the area of obscenity the Constitution does not bind the States and the Federal Government in precisely the same fashion. This approach is plainly consistent with the language of the First and Fourteenth Amendments and, in my opinion, more responsive to the proper functioning of a federal system of government in this area. See my opinion in Roth, 354 U.S., at 505—506, 77 S.Ct., at 1319—1320. I believe it is also consistent with past decisions of this Court. Although some 40 years have passed since the Court first indicated that the Fourteenth Amendment protects 'free speech,' see Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138; Fiske v. State of Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108, the decisions have never declared that every utterance the Federal Government may not reach or every regulatory scheme it may not enact is also beyond the power of the State. The very criteria used in opinions to delimit the protection of free speech—the gravity of the evil being regulated, see Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; how 'clear and present' is the danger, Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (Holmes, J.); the magnitude of 'such invasion of free speech as is necessary to avoid the danger,' United States v. Dennis, 2 Cir., 183 F.2d 201, 212 (L. Hand, J.)—may and do depend on the particular context in which power is exercised. When, for example, the Court in Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919, upheld a criminal group-libel law because of the 'social interest in order and morality,' 343 U.S., at 257, 72 S.Ct., at 731, it was acknowledging the responsibility and capacity of the States in such public-welfare matters and not committing itself to uphold any similar federal statute applying to such communications as Congress might otherwise regulate under the commerce power. See also Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513.
106
Federal suppression of allegedly obscene matter should, in my view, be constitutionally limited to that often described as 'hard-core pornography.' To be sure, that rubric is not a self-executing standard, but it does describe something that most judges and others will 'know * * * when (they) see it' (Stewart, J., in Jacobellis v. State of Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793) and that leaves the smallest room for disagreement between those of varying tastes. To me it is plain, for instance, that Fanny Hill does not fall within this class and could not be barred from the federal mails. If further articulation is meaningful, I would characterize as 'hard-core' that prurient material that is patently offensive or whose indecency is self-demonstrating and I would describe it substantially as does Mr. Justice Stewart's opinion in Ginzburg, 383 U.S., p. 499, 86 S.Ct., p. 957. The Federal Government may be conceded a limited interest in excluding from the mails such gross pornography, almost universally condemned in this country.2 But I believe the dangers of national censorship and the existence of primary responsibility at the state level amply justify drawing the line at this point.
107
State obscenity laws present problems of quite a different order. The varying conditions across the country, the range of views on the need and reasons for curbing obscenity, and the traditions of local self-government in matters of public welfare all favor a far more flexible attitude in defining the bounds for the States. From my standpoint, the Fourteenth Amendment requires of a State only that it apply criteria rationally related to the accepted notion of obscenity and that it reach results not wholly out of step with current American standards. As to criteria, it should be adequate if the court or jury considers such elements as offensiveness, pruriency, social value, and the like. The latitude which I believe the States deserve cautions against any federally imposed formula listing the exclusive ingredients of obscenity and fixing their proportions. This approach concededly lacks precision, but imprecision is characteristic of meditating constitutional standards;3 voluntariness of a confession, clear and present danger, and probable cause are only the most ready illustrations. In time and with more litigated examples, predictability increases, but there is no shortcut to satisfactory solutions in this field, and there is no advantage in supposing otherwise.
108
I believe the tests set out in the prevailing opinion, judged by their application in this case, offer only an illusion of certainty and risk confusion and prejudice. The opinion declares that a book cannot be banned unless it is 'utterly without redeeming social value' (ante, p. 418). To establish social value in the present case, a number of acknowledged experts in the field of literature testified that Fanny Hill held a respectable place in serious writing, and unless such largely uncontradicted testimony is accepted as decisive it is very hard to see that the 'utterly without redeeming social value' test has any meaning at all. Yet the prevailing opinion, while denying that social value may be 'weighed against' or 'canceled by' prurience or offensiveness (ante, p. 419), terminates this case unwilling to give a conclusive decision on the status of Fanny Hill under the Constitution.4 Apparently, the Court believes that the social value of the book may be negated if proof of pandering is present. Using this inherently vague 'pandering' notion to offset 'social value' wipes out any certainty the latter term might be given by reliance on experts, and admits into the case highly prejudicial evidence without appropriate restrictions. See my dissenting opinion in Ginzburg, 383 U.S., p. 493, 86 S.Ct., p. 953. I think it more satisfactory to acknowledge that on this record the book has been shown to have some quantum of social value, that it may at the same time be deemed offensive and salacious, and that the State's decision to weigh these elements and to ban this particular work does not exceed constitutional limits.
109
A final aspect of the obscenity problem is the role this Court is to play in administering its standards, a matter that engendered justified concern at the oral argument of the cases now decided. Short of saying that no material relating to sex may be banned, or that all of it may be, I do not see how this Court can escape the task of reviewing obscenity decisions on a case-by-case basis. The views of literary or other experts could be made controlling, but those experts had their say in Fanny Hill and apparently the majority is no more willing than I to say that Massachusetts must abide by their verdict. Yet I venture to say that the Court's burden of decision would be ameliorated under the constitutional principles that I have advocated. 'Hard-core pornography' for judging federal cases is one of the more tangible concepts in the field. As to the States, the due latitude my approach would leave them ensures that only the unusual case would require plenary review and correction by this Court.
110
There is plenty of room, I know, for disagreement in this area of constitutional law. Some will think that what I propose may encourage States to go too far in this field. Others will consider that the Court's present course unduly restricts state experimentation with the still elusive problem of obscenity. For myself, I believe it is the part of wisdom for those of us who happen currently to possess the 'final word' to leave room for such experimentation, which indeed is the underlying genius of our federal system.
111
On the premises set forth in this opinion, supplementing what I have earlier said in my opinions in Roth, supra; Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639, and Jacobellis v. State of Ohio, 378 U.S., at 203, 84 S.Ct., at 1686, I would affirm the judgment of the Massachusetts Supreme Judicial Court.
112
Mr. Justice WHITE, dissenting.
113
In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, the Court held a publication to be obscene if its predominant theme appeals to the prurient interest in a manner exceeding customary limits of candor. Material of this kind, the Court said, is 'utterly without redeeming social importance' and is therefore unprotected by the First Amendment.
114
To say that material within the Roth definition of obscenity is nevertheless not obscene if it has some redeeming social value is to reject one of the basic propositions of the Roth case—that such material is not protected because it is inherently and utterly without social value.
115
If 'social importance' is to be used as the prevailing opinion uses it today, obscene material, however far beyond customary limits of candor, is immune if it has any literary style, if it contains any historical references or language characteristic of a bygone day, or even if it is printed or bound in an interesting way. Well written, especially effective obscenity is protected; the poorly written is vulnerable. And why shouldn't the fact that some people buy and read such material prove its 'social value'?
116
A fortiori, if the predominant theme of the book appeals to the prurient interest as stated in Roth but the book nevertheless contains here and there a passage descriptive of character, geography or architecture, the book would not be 'obscene' under the social importance test. I had thought that Roth counseled the contrary: that the character of the book is fixed by its predominant theme and is not altered by the presence of minor themes of a different nature. The Roth Court's emphatic reliance on the quotation from Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031, means nothing less:
117
"* * * There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene * * *. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality * * *.' (Emphasis added.)' 354 U.S., at 485, 77 S.Ct., at 1309.
118
In my view, 'social importance' is not an independent test of obscenity but is relevant only to determining the predominant prurient interest of the material, a determination which the court or the jury will make based on the material itself and all the evidence in the case, expert or otherwise.
119
Application of the Roth test, as I understand it, necessarily involves the exercise of judgment by legislatures, courts and juries. But this does not mean that there are no limits to what may be done in the name of Roth. Cf. Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793. Roth does not mean that a legislature is free to ban books simply because they deal with sex or because they appeal to the prurient interest. Nor does it mean that if books like Fanny Hill are unprotected, their nonprurient appeal is necessarily lost to the world. Literary style, history, teachings about sex, character description (even of a prostitute) or moral lessons need not come wrapped in such packages. The fact that they do impeaches their claims to immunity from legislative censure.
120
Finally, it should be remembered that if the publication and sale of Fanny Hill and like books are proscribed, it is not the Constitution that imposes the ban. Censure stems from a legislative act, and legislatures are constitutionally free to embrace such books whenever they wish to do so. But if a State insists on treating Fanny Hill as obscene and forbidding its sale, the First Amendment does not prevent it from doing so.
121
I would affirm the judgment below.
1
The text of the statute appears in the Appendix.
2
In dissenting from the Supreme Judicial Court's disposition in this case, 349 Mass. 69, 74—75, 206 N.E.2d 403, 406 407 (1965), Justice Whittemore summarized this testimony:
'In the view of one or another or all of the following viz., the chairman of the English department at Williams College, a professor of English at Harvard College, an associate professor of English literature at Boston University, an associate professor of English at Massachusetts Institute of Technology, and an Assistant
professor of English and American literature at Brandeis University, the book is a minor 'work of art' having 'literary merit' and 'historical value' and containing a good deal of 'deliberate, calculated comedy.' It is a piece of 'social history of interest to anyone who is interested in fiction as a way of understanding society in the past.'1 A saving grace
1
' One of the witnesses testified in part as follows: 'Cleland is part of what I should call this cultural battle that is going on in the 18th century, a battle between a restricted Puritan, moralistic ethic that attempts to suppress freedom of the spirit, freedom of the flesh, and this element is competing with a freer attitude towards life, a more generous attitude towards life, a more wholesome attitude towards life, and this very attitude that is manifested in Fielding's great novel 'Tom Jones' is also evident in Cleland's novel. * * * (Richardson's) 'Pamela' is the story of a young country girl; (his) 'Clarissa' is the story of a woman trapped in a house of prostitution. Obviously, then Cleland takes both these themes, the country girl, her initiation into life and into experience, and the story of a woman in a house of prostitution, and what he simply does is to take the situation and reverse the moral standards. Richardson believed that chastity was the most important thing in the world; Cleland and Fielding obviously did not and thought there were more important significant moral values.'
is that although many scenes, if translated into the present day language of 'the realistic, naturalistic novel, could be quite offensive' these scenes are not described in such language. The book contains no dirty words and its language 'functions * * * to create a distance, even when the sexual experiences are portrayed.' The response, therefore, is a literary response. The descriptions of depravity are not obscene because 'they are subordinate to an interest which is primarily literary'; Fanny's reaction to the scenes of depravity was 'anger,' 'disgust, horror, (and) indignation.' The book 'belongs to the history of English literature rather than the history of smut.'2
2
'In the opinion of the order academic witness, the headmaster of a private school, whose field is English literature, the book is without literary merit and is obscene, impure, hard core pornography, and is patently offensive.'
3
The record in this case is thus significantly different from the records in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, and Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, also decided today. See pp. 420—421, infra.
4
Section 28B makes it a criminal offense, inter alia, to import, print, publish, sell, loan, distribute, buy, procure, receive, or possess for the purpose of sale, loan, or distribution, 'a book, knowing it to be obscene.' Section 28H provides that in any prosecution under § 28B the decree obtained in a proceeding against the book 'shall be admissible in evidence' and further that '(i)f prior to the said offence a final decree had been entered against the book, the defendant, if the book be obscene * * * shall be conclusively presumed to have known said book to be obscene * * *.' Thus a declaration of obscenity such as that obtained in this proceeding is likely to result in the total suppression of the book in the Commonwealth.
The constitutionality of § 28H has not been challenged in this appeal.
5
Although the final decree provides no coercive relief but only a declaration of the book's obscenity, our adjudication of the merits of the issue tendered, viz., whether the state courts erred in declaring the book obscene, is not premature. There is no uncertainty as to the content of the material challenged, and the Attorney General's petition commencing this suit states that the book 'is being imported, sold, loaned, or distributed in the Commonwealth.' The declaration of obscenity is likely to have a serious inhibitory effect on the distribution of the book, and this probable impact is to no small measure derived from possible collateral uses of the declaration in subsequent prosecutions under the Massachusetts criminal obscenity statute. See n. 4, supra.
6
We infer from the opinions below that the other adjectives describing the proscribed books in §§ 28C—28H, 'indecent' and 'impure,' have either been read out of the statute or deemed synonymous with 'obscene.'
7
'(M)aterial dealing with sex in a manner that advocates ideas * * * or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection. Nor may the constitutional status of the material be made to turn on a 'weighing' of its social importance against its prurient appeal, for a work cannot be proscribed unless it is 'utterly' without social importance. See Zeitlin v. Arnebergh, 59 Cal.2d 901, 920, 31 Cal.Rptr. 800, 813, 383 P.2d 152, 165 (1963).' Jacobellis v. State of Ohio, 378 U.S. 184, 191, 84 S.Ct. 1676, 1680, 12 L.Ed.2d 793 (opinion of Brennan, J.). Followed in, e.g., People v. Bruce, 31 Ill.2d 459, 461, 202 N.E.2d 497, 498 (1964); Trans-Lux Distributing Corp. v. Maryland State Bd. of Censors, 240 Md. 98, 104—105, 213 A.2d 235, 238—239 (1965).
8
In his dissenting opinion, 349 Mass., at 76—78, 206 N.E.2d, at 408—409, Justice Cutter stated that, although in his view the book was not 'obscene' within the meaning of Roth, 'it could reasonably be found that distribution of the book to persons under the age of eighteen would be a violation of G.L. c. 272, § 28, as tending to corrupt the morals of youth.' (Section 28 makes it a crime to sell to 'a person under the age of eighteen years a book * * * which is obscene * * * or manifestly tends to corrupt the morals of youth.') He concluded that the court should 'limit the relief granted to a declaration that distribution of this book to persons under the age of eighteen may be found to constitute a violation of (G.L.) c. 272, § 28, if that section is reasonably applied * * *.' However, the decree was not so limited and we intimate no view concerning the constitutionality of such a limited declaration regarding Memoirs. Cf. Jacobellis v. State of Ohio, 378 U.S., at 195, 84 S.Ct., at 1682.
1
Memoirs was the subject of what is generally regarded as the first recorded suppression of a literary work in this country of grounds of obscenity. See Commonwealth v. Holmes, 17 Mass. 336 (1821). The edition there condemned differed from the present volume in that it contained apparently erotic illustrations.
2
Memoirs, at 213—214 (Putnam ed. 1963).
3
The defense drew its witnesses from the various colleges located within the Commonwealth of Massachusetts. These included: Fred Holly Stocking, Professor of English and Chairman of the English Department, Williams College; John M. Bullitt, Professor of English and Master of Quincy House, Harvard College; Robert H. Sproat, Associate Professor of English Literature, Boston University; Norman N. Holland, Associate Professor of English Massachusetts Institute of Technology; and Ira Konigsberg, Assistant Professor of English and American Literature, Brandeis University.
In addition, the defense introduced into evidence reviews of impartial literary, critics. These are, in my opinion, of particular significance since their publication indicates that the book is of sufficient significance as to warrant serious critical comment. The reviews were by V. S. Pritchett, New York Review of Books, p. 1 (Oct. 31, 1963); Brigid Brophy, New Statesman, p. 710 (Nov. 15, 1963); and J. Donald Adams, New York Times Book Review, p. 2 (July 28, 1963). And the Appendix to this opinion contains another contemporary view.
4
There are two reports of the case. The first is captioned Le Roy v. Sr. Charles Sidney, 1 Sid. 168, pl. 29 (K.B. 1663); the second is titled Sir Charles Sydlyes Case, 1 Keble 620 (K.B. 1663). Sir Charles had made a public appearance on a London balcony while nude, intoxicated, and talkative. He delivered a lengthy speech to the assembled crowd, uttered profanity, and hurled bottles containing what was later described as an 'offensive liquor' upon the crowd. The proximate source of the 'offensive liquor' appears to have been Sir Charles. Alpert, Judicial Censorship of Obscene Literature, 52 Harv.L.Rev. 40—43 (1938).
5
The Queen v. Read, 11 Mod. 142 (Q.B. 1707).
6
Dominus Rex v. Curl, 2 Strange 789 (K.B. 1727). See Straus, The Unspeakable Curll (1927).
7
Rex v. Wilkes, 4 Burr. 2527 (K.B. 1770). The prosecution of Wilkes was a highly political action, for Wilkes was an outspoken critic of the government. See R. W. Postgate, That Devil Wilkes (1929). It has been suggested that the prosecution in this case was a convenient substitute for the less attractive charge of seditious libel. See Alpert, supra, at 45.
8
See 354 U.S., at 483 and n. 13, 77 S.Ct., at 1308. For the most part, however, the early legislation was aimed at blasphemy and profanity. See 354 U.S., at 482—483 and n. 12, 77 S.Ct., at 1308. The first reported decision involving the publication of obscene literature does not come until 1821. See Commonwealth v. Holmes, 17 Mass. 336. It was not until after the Civil War that state prosecutions of this sort became commonplace. See Lockhart & McClure, Literature, The Law of Obscenity and the Constitution, 38 Minn.L.Rev. 295, 324—325 (1954).
9
Tariff Act of 1842, c. 270, § 28, 5 Stat. 566 (prohibiting importation of obscene 'prints'). Other federal legislation followed; the development of federal law is traced in Cairns, Paul & Wishner, Sex Censorship: The Assumptions of Anti-Obscenity Laws and the Empirical Evidence, 46 Minn.L.Rev. 1009, 1010 n. 2 (1962).
10
See Cairns, Paul & Wishner, Sex Censorship, supra, 1034 1041; Lockhart & McClure, supra, at 382—387. And see the summary of Dr. Jahoda's studies prepared by her for Judge Frank, reprinted in United States v. Roth, 2 Cir., 237 F.2d 796, 815—816 (concurring opinion). Those who are concerned about children and erotic literature would do well to consider the counsel of Judge Bok:
'It will be asked whether one would care to have one's young daughter read these books. I suppose that by the time she is old enough to wish to read them she will have learned the biologic facts of life and the words that go with them. There is something seriously wrong at home if those facts have not been met and faced and sorted by them; it is not children so much as parents that should receive our concern about this. I should prefer that my own three daughters meet the facts of life and the literature of the world in my library than behind a neighbor's barn, for I can face the adversary there directly. If the young ladies are appalled by what they read, they can close the book at the bottom of page one; if they read further, they will learn what is in the world and in its people, and no parents who have been discerning with their children need fear the outcome. Nor can they hold it back, for life is a series of little battles and minor issues, and the burden of choice is on us all, every day, young and old.' Commonwealth v. Gordon, 66 Pa.Dist. & Co.R. 101, 110.
11
It would be a futile effort even for a censor to attempt to remove all that might possibly stimulate antisocial sexual conduct:
'The majority (of individuals), needless to say, are somewhere between the over-scrupulous extremes of excitement and frigidity * * *. Within this variety, it is impossible to define 'hard-core' pornography, as if there were some singly lewd concept from which all profane ideas passed by imperceptible degrees into that sexuality called holy. But there is no 'hard-core.' Everything, every idea, is capable of being obscene if the personality perceiving it so apprehends it.
'It is for this reason that books, pictures, charades, ritual, the spoken word, can and do lead directly to conduct harmful to the self indulging in it and to others. Heinrich Pommerenke, who was a rapist, abuser, and mass slayer of women in Germany, was prompted to his series of ghastly deeds by Cecil B. DeMille's The Ten Commandments. During the scene of the Jewish women dancing about the Golden Calf, all the doubts of his life came clear: Women were the source of the world's trouble and it was his mission to both punish them for this and to execute them. Leaving the theater, he slew his first victim in a park nearby. John George Haigh, the British vampire who sucked his victims' blood through soda straws and dissolved their drained bodies in acid baths, first had his murder-inciting dreams and vampire-longings from watching the 'voluptuous' procedure of—an Anglican High Church Service!' Murphy, supra, at 668.
1
See Lockhart & McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5, 53—55 (1960).
2
In a preface to the paperbook edition, 'A Note on the American History of Memoirs of a Woman of Pleasure,' the publisher itself mentions several critics who denied the book had any literary merit and found it totally undistinguished. These critics included Ralph Thompson and Clifton Fadiman. P. xviii.
3
As one review stated: 'Yet all these pangs of defloration are in the service of erotic pleasure—Fanny's and the reader's. Postponing the culmination of Fanny's deflowering is equivalent to postponing the point where the reader has a mental orgasm.'
4
For a summary of experiments with various sexual stimuli see Cairns, Paul & Wishner, Sex Censorship: The Assumptions of Anti-Obscenity Laws and the Empirical Evidence, 46 Minn.L.Rev. 1009 (1962). The authors cite research by Kinsey disclosing that obscene literature stimulated a definite sexual response in a majority of the male and female subjects tested.
5
E.g., Wertham, Seduction of the Innocent (1954), p. 164.
6
Testimony before the Subcommittee of the Judiciary Committee to Investigate Juvenile Delinquency, S.Rep.No. 2381, 84th Cong., 2d Sess., pp. 8—12 (1956).
7
Sorokin, The American Sex Revolution (1956).
8
Testimony before the House Select Committee on Current Pornographic Materials, H.R.Rep.No. 2510, 82d Cong., 2d Sess., p. 62 (1952).
9
See, e.g., Hoover, Combating Merchants of Filth: The Role of the FBI, 25 U.Pitt.L.Rev. 469 (1964); Hoover, The Fight Against Filth, The American Legion Magazine (May 1961).
10
For a general discussion see Murphy, Censorship: Government and Obscenity (1963), pp. 131—151.
11
The statutes are compiled in S.Rep.No. 2381, 84th Cong., 2d Sess., pp. 17—23 (1956). While New Mexico itself does not prohibit the distribution of obscenity, it has a statute giving municipalities the right to suppress 'obscene' publications. N.M.Stat. § 14—17—14 (1965 Supp.).
12
See Report of the New York State Joint Legislative Committee Studying the Publication and Dissemination of Offensive and Obscene Material (1958), pp. 141—166.
1
Given my view of the applicable constitutional standards, I find no occasion to consider the place of "redeeming social importance" in the majority opinion in Roth, an issue which further divides the present Court.
2
This interest may be viewed from different angles. Compelling the Post Office to aid actively in disseminating this most obnoxious material may simply appear too offensive in itself. Or, more concretely, use of the mails may facilitate or insulate distribution so greatly that federal inaction amounts to thwarting state regulation.
3
The deterrent effect of vagueness for that critical class of books near the law's borderline could in the past be ameliorated by devices like the Massachusetts in rem procedure used in this case. Of course, the Court's newly adopted 'panderer' test, turning as it does on the motives and actions of the particular defendant, seriously undercuts the effort to give any seller a yes or no answer on a book in advance of his own criminal prosecution.
4
As I understand the prevailing opinion, its rationale is that the state court may not condemn Fanny Hill as obscene after finding the book to have a modicum so social value; the opinion does note that proof of pandering 'might justify the conclusion' that the book wholly lacks social value (ante, p. 420). Given its premise for reversal, the opinion has 'no occasion to assess' for itself the pruriency, offensiveness, or lack of social value of the book (ante, p. 420).
| 23
|
383 U.S. 519
86 S.Ct. 1033
16 L.Ed.2d 69
Edward J. BRENNER, Commissioner of Patents, Petitioner,v.Andrew John MANSON.
No. 58.
Argued Nov. 17, 1965.
Decided March 21, 1966.
Paul Bender, Washington, D.C., for petitioner, pro hac vice, by special leave of Court.
Dean Laurence, Washington, D.C., for respondent.
Mr. Justice FORTAS delivered the opinion of the Court.
1
This case presents two questions of importance to the administration of the patent laws: First, whether this Court has certiorari jurisdiction, upon petition of the Commissioner of Patents, to review decisions of the Court of Customs and Patent Appeals; and second, whether the practical utility of the compound produced by a chemical process is an essential element in establishing a prima facie case for the patentability of the process. The facts are as follows:
2
In December 1957, Howard Ringold and George Rosenkranz applied for a patent on an allegedly novel process for making certain known steroids.1 They claimed priority as of December 17, 1956, the date on which they had filed for a Mexican patent. United States Patent No. 2,908,693 issued late in 1959.
3
In January 1960, respondent Manson, a chemist engaged in steroid research, filed an application to patent precisely the same process described by Ringold and Rosenkranz. He asserted that it was he who had discovered the process, and that he had done so before December 17, 1956. Accordingly, he requested that an 'interference' be declared in order to try out the issue of priority between his claim and that of Ringold and Rosenkranz.2
4
A Patent Office examiner denied Manson's application, and the denial was affirmed by the Board of Appeals within the Patent Office. The ground for rejection was the failure 'to disclose any utility for' the chemical compound produced by the process. Letter of Examiner, dated May 24, 1960. This omission was not cured, in the opinion of the Patent Office, by Manson's reference to an article in the November 1956 issue of the Journal of Organic Chemistry, 21 J.Org.Chem. 1333—1335, which revealed that steroids of a class which included the compound in question were undergoing screening for possible tumor-in-hibiting effects in mice, and that a homologue3 adjacent to Manson's steroid had proven effective in that role. Said the Board of Appeals, 'It is our view that the statutory requirement of usefulness of a product cannot be presumed merely because it happens to be closely related to another compound which is known to be useful.'
5
The Court of Customs and Patent Appeals (hereinafter CCPA) reversed, Chief Judge Worley dissenting. 52 C.C.P.A. (Pat.) 739, 745, 333 F.2d 234, 237—238. The court held that Manson was entitled to a declaration of interference since 'where a claimed process produces a known product it is not necessary to show utility for the product,' so long as the product 'is not alleged to be detrimental to the public interest.' Certiorari was granted, 380 U.S. 971, 85 S.Ct. 1334, 14 L.Ed.2d 267, to resolve this running dispute over what constitutes 'utility' in chemical process claims,4 as well as to answer the question concerning our certiorari jurisdiction.
I.
6
Section 1256 of Title 28 U.S.C. (1964 ed.), enacted in 1948, provides that 'Cases in the Court of Customs and Patent Appeals may be reviewed by the Supreme Court by writ of certiorari.' This unqualified language would seem to foreclose any challenge to our jurisdiction in the present case. Both the Government5 and the respondent urge that we have certiorari jurisdiction over patent decisions of the CCPA, although the latter would confine our jurisdiction to those petitions filed by dissatisfied applicants and would deny the Commissioner of Patents the right to seek certiorari.6 This concert of opinion does not settle the basic question because jurisdiction cannot be conferred by consent of the parties. The doubt that does exist stems from a decision of this Court, rendered in January 1927, in Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693, 47 S.Ct. 284, 71 L.Ed. 478, which has been widely interpreted as precluding certiorari jurisdiction over patent and trademark decisions of the CCPA.
7
Postum, however, was based upon a statutory scheme materially different from the present one. Postum involved a proceeding in the Patent Office to cancel a trademark. The Commissioner of Patents rejected the application. An appeal was taken to the then Court of Appeals for the District of Columbia, which in 1927 exercised the jurisdiction later transferred to the CCPA. Under the statutory arrangement in effect at the time, the judgment of the Court of Appeals was not definitive because it was not an order to the Patent Office determinative of the controversy. A subsequent bill in equity could be brought in the District Court and it was possible that a conflicting adjudication could thus be obtained. On this basis, the Court held that it could not review the decision of the Court of Appeals. It held that the conclusion of the Court of Appeals was an 'administrative decision' rather than a 'judicial judgment': 'merely an instruction to the Commissioner of Patents by a court which is made part of the machinery of the Patent Office for administrative purposes.' 272 U.S., at 698—699, 47 S.Ct. at 285. Therefore, this Court concluded, the proceeding in the Court of Appeals—essentially administrative in nature—was neither case nor controversy within the meaning of Article III of the Constitution. Congress might confer such 'administrative' tasks upon the courts of the District of Columbia, wrote Chief Justice Taft, but it could not empower this Court to participate therein.
8
Congress soon amended the statutory scheme. In March of 1927 it provided that an action in the District Court was to be alternative and not cumulative to appellate review, that it could not be maintained to overcome an adjudication in the Court of Appeals.7 In 1929 Congress transferred appellate jurisdiction over the Commissioner's decisions from the Court of Appeals to what had been the Court of Customs Appeals and was now styled the Court of Customs and Patent Appeals.8 Whereas the Court of Appeals had been empowered to take additional evidence and to substitute its judgment for that of the Commissioner, the CCPA was confined to the record made in the Patent Office.9 Compare Federal Communications Comm'n v. Pottsville Broadcasting Co., 309 U.S. 134, 144—145, 60 S.Ct. 437, 442, 84 L.Ed. 656. Despite these changes, however, Postum had acquired a life of its own. It continued to stand in the way of attempts to secure review here of CCPA decisions respecting the Commissioner of Patents. See, e.g., McBride v. Teeple, 311 U.S. 649, 61 S.Ct. 8, 85 L.Ed. 415, denying certiorari for 'want of jurisdiction' on the authority of Postum.10
9
This was the background against which Congress, in its 1948 codification of statutes pertaining to the judiciary, enacted § 1256, blandly providing in unqualified language for review on certiorari of '(c)ases in the Court of Customs and Patent Appeals.' Nothing in the legislative materials relating to the statute, except its language, is of assistance to us in the resolution of the present problem: Did the statutory changes which followed Postum mean that a patent decision by the CCPA was a 'judicial' determination reviewable by this Court under Article III? And, if so, was § 1256 intended to create such jurisdiction?
10
Assistance came with the 1958 revision of the Judicial Code. Congress there declared the CCPA 'a court established under article III * * *,' that is, a constitutional court exercising judicial rather than administrative power. 28 U.S.C. § 211 (1964 ed.). In 1962 this Court addressed itself to the nature and status of the CCPA. Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671, raised the question whether a judge of the CCPA was an Article III judge, capable of exercising federal judicial power. In answering that question in the affirmative, Mr. Justice Harlan's opinion, for three of the seven Justices participating, expressly left open the question whether § 1256 conferred certiorari jurisdiction over patent and trademark cases decided in the CCPA, 370 U.S., at 578 n. 49, 82 S.Ct. at 1487. It suggested, however, that Postum might be nothing more than a museum piece. The opinion noted that Postum 'must be taken to be limited to the statutory scheme in existence before' 1929. 370 U.S., at 579, 82 S.Ct. at 1488. The concurring opinion of Mr. Justice Clark, in which The Chief Justice joined, did not reflect any difference on this point.
11
Thus, the decision sought to be reviewed is that of an Article III court. It is 'judicial' in character. It is not merely an instruction to the Commissioner or part of the 'administrative machinery' of the Patent Office. It is final and binding in the usual sense.11 In sum, Postum has no vitality in the present setting, and there remains no constitutional bar to our jurisdiction.
12
Having arrived at this conclusion, we have no difficulty in giving full force and effect to the generality of the language in § 1256. It would be entirely arbitrary for us to assume, despite the statutory language, that Congress in 1948 intended to enshrine Postum—dependent as it was upon a statutory scheme fundamentally altered in 1927 and 1929—as a hidden exception to the sweep of § 1256. The contrary is more plausible: that by using broad and unqualified language, Congress intended our certiorari jurisdiction over CCPA cases to be as broad as the Constitution permits.
13
This conclusion is reinforced by reference to the anomalous consequences which would result were we to adopt a contrary view of § 1256. Determinations of the Patent Office may be challenged either by appeal to the CCPA or by suit instituted in the United States District Court for the District of Columbia. 35 U.S.C. § 145, 28 U.S.C. § 1542 (1964 ed.). Where the latter route is elected, the decision obtained may be reviewed in the Court of Appeals for the District of Columbia Circuit, and ultimately in this Court upon writ of certiorari. Hoover Co. v. Coe, 325 U.S. 79, 65 S.Ct. 955, 89 L.Ed. 1488. It would be strange indeed if corresponding certiorari jurisdiction did not exist where the alternative route was elected. Were that so, in the event of conflict between the CCPA and the courts of the District of Columbia, resolution by this Court would be achievable only if the litigants chose to proceed through the latter. Obviously, the orderly administration both of our certiorari jurisdiction and of the patent laws requires that ultimate review be available in this Court, regardless of the route chosen by the litigants.
14
We therefore conclude that § 1256 authorizes the grant of certiorari in the present case. We now turn to the merits.12
II.
15
Our starting point is the proposition, neither disputed nor disputable, that one may patent only that which is 'useful.' In Graham v. John Deere Co., 383 U.S. 1, at 5—10, 86 S.Ct. 684, at 687—690, we have reviewed the history of the requisites of patentability, and it need not be repeated here. Suffice it to say that the concept of utility has maintained a central place in all of our patent legislation, beginning with the first patent law in 179013 and culminating in the present law's provision that
16
'Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.'14
17
As is so often the case, however, a simple, everyday word can be pregnant with ambiguity when applied to the facts of life. That this is so is demonstrated by the present conflict between the Patent Office and the CCPA over how the test is to be applied to a chemical process which yields an already known product whose utility—other than as a possible object of scientific inquiry—has not yet been evidenced. It was not long ago that agency and court seemed of one mind on the question. In Application of Bremner, 182 F.2d 216, 217, 37 C.C.P.A. (Pat.) 1032, 1034, the court affirmed rejection by the Patent Office of both process and product claims. It noted that 'no use for the products claimed to be developed by the processes had been shown in the specification.' It held that 'It was never intended that a patent be granted upon a product, or a process producing a product, unless such product be useful.' Nor was this new doctrine in the court. See Thomas v. Michael, 166 F.2d 944, 946—947, 35 C.C.P.A. (Pat.) 1036, 1038—1039.
18
The Patent Office has remained stead-fast in this view. The CCPA, however, has moved sharply away from Bremner. The trend began in Application of Nelson, 280 F.2d 172, 47 C.C.P.A. (Pat.) 1031. There, the court reversed the Patent Office's rejection of a claim on a process yielding chemical intermediates 'useful to chemists doing research on steroids,' despite the absence of evidence that any of the steroids thus ultimately produced were themselves 'useful.' The trend has accelerated,15 culminating in the present case where the court held it sufficient that a process produces the result intended and is not 'detrimental to the public interest.' 333 F.2d at 238, 52 C.C.P.A. (Pat.), at 745.
19
It is not remarkable that differences arise as to how the test of usefulness is to be applied to chemical processes. Even if we knew precisely what Congress meant in 1790 when it devised the 'new and useful' phraseology and in subsequent re-enactments of the test, we should have difficulty in applying it in the context of contemporary chemistry where research is as comprehensive as man's grasp and where little or nothing is wholly beyond the pale of 'utility'—if that word is given its broadest reach.
20
Respondent does not—at least in the first instance—rest upon the extreme proposition, advanced by the court below, that a novel chemical process is patentable so long as it yields the intended product16 and so long as the product is not itself 'detrimental.' Nor does he commit the outcome of his claim to the slightly more conventional proposition that any process is 'useful' within the meaning of § 101 if it produces a compound whose potential usefulness is under investigation by serious scientific researchers, although he urges this position, too, as an alternative basis for affirming the decision of the CCPA. Rather, he begins with the much more orthodox argument that his process has a specific utility which would entitle him to a declaration of interference even under the Patent Office's reading of § 101. The claim is that the supporting affidavits filed pursuant to Rule 204(b), by reference to Ringold's 1956 article, reveal that an adjacent homologue of the steroid yielded by his process has been demonstrated to have tumor-inhibiting effects in mice, and that this discloses the requisite utility. We do not accept any of these theories as an adequate basis for overriding the determination of the Patent Office that the 'utility' requirement has not been met.
21
Even on the assumption that the process would be patentable were respondent to show that the steroid produced had a tumor-inhibiting effect in mice,17 we would not overrule the Patent Office finding that respondent has not made such a showing. The Patent Office held that, despite the reference to the adjacent homologue, respondent's papers did not disclose a sufficient likelihood that the steroid yielded by his process would have similar tumor-inhibiting characteristics. Indeed, respondent himself recognized that the presumption that adjacent homologues have the same utility18 has been challenged in the steroid field because of 'a greater known unpredictability of compounds in that field.'19 In these circumstances and in this technical area, we would not overturn the finding of the Primary Examiner, affirmed by the Board of Appeals and not challenged by the CCPA.
22
The second and third points of respondent's argument present issues of much importance. Is a chemical process 'useful' within the meaning of § 101 either (1) because it works—i.e., produces the intended product? or (2) because the compound yielded belongs to a class of compounds now the subject of serious scientific investigation? These contentions present the basic problem for our adjudication. Since we find no specific assistance in the legislative materials underlying § 101, we are remitted to an analysis of the problem in light of the general intent of Congress, the purposes of the patent system, and the implications of a decision one way or the other.
23
In support of his plea that we attenuate the requirement of 'utility,' respondent relies upon Justice Story's well-known statement that a 'useful' invention is one 'which may be applied to a beneficial use in society, in contradistinction to an invention injurious to the morals, health, or good order of society, or frivolous and insignificant'20—and upon the assertion that to do so would encourage inventors of new processes to publicize the event for the benefit of the entire scientific community, thus widening the search for uses and increasing the fund of scientific knowledge. Justice Story's language sheds little light on our subject. Narrowly read, it does no more than compel us to decide whether the invention in question is 'frivolous and insignificant'—a query no easier of application than the one built into the statute. Read more broadly, so as to allow the patenting of any invention not positively harmful to society, it places such a special meaning on the word 'useful' that we cannot accept it in the absence of evidence that Congress so intended. There are, after all, many things in this world which may not be considered 'useful' but which, nevertheless are totally without a capacity for harm.
24
It is true, of course, that one of the purposes of the patent system is to encourage dissemination of information concerning discoveries and inventions.21 And it may be that inability to patent a process to some extent discourages disclosure and leads to greater secrecy than would otherwise be the case. The inventor of the process, or the corporate organization by which he is employed, has some incentive to keep the invention secret while uses for the product are searched out. However, in light of the highly developed art of drafting patent claims so that they disclose as little useful information as possible—while broadening the scope of the claim as widely as possible—the argument based upon the virtue of disclosure must be warily evaluated. Moreover, the pressure for secrecy is easily exaggerated, for if the inventor of a process cannot himself ascertain a 'use' for that which his process yields, he has every incentive to make his invention known to those able to do so. Finally, how likely is disclosure of a patented process to spur research by others into the uses to which the product may be put? To the extent that the patentee has power to enforce his patent, there is little incentive for others to undertake a search for uses.
25
Whatever weight is attached to the value of encouraging disclosure and of inhibiting secrecy, we believe a more compelling consideration is that a process patent in the chemical field, which has not been developed and pointed to the degree of specific utility, creates a monopoly of knowledge which should be granted only if clearly commanded by the statute. Until the process claim has been reduced to production of a product shown to be useful, the metes and bounds of that monopoly are not capable of precise delineation. It may engross a vast, unknown, and perhaps unknowable area. Such a patent may confer power to block off whole areas of scientific development,22 without compensating benefit to the public. The basic quid pro quo contemplated by the Constitution and the Congress for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility. Unless and until a process is refined and developed to this point—where specific benefit exists in currently available form—there is insufficient justification for permitting an applicant to engross what may prove to be a broad field.
26
These arguments for and against the patentability of a process which either has no known use or is useful only in the sense that it may be an object of scientific research would apply equally to the patenting of the product produced by the process. Respondent appears to concede that with respect to a product, as opposed to a process, Congress has struck the balance on the side of nonpatentability unless 'utility' is shown. Indeed, the decisions of the CCPA are in accord with the view that a product may not be patented absent a showing of utility greater than any adduced in the present case.23 We find absolutely no warrant for the proposition that although Congress intended that no patent be granted on a chemical compound whose sole 'utility' consists of its potential role as an object of use-testing, a different set of rules was meant to apply to the process which yielded the unpatentable product.24 That proposition seems to us little more than an attempt to evade the impact of the rules which concededly govern patentability of the product itself.
27
This is not to say that we mean to disparage the importance of contributions to the fund of scientific information short of the invention of something 'useful,' or that we are blind to the prospect that what now seems without 'use' may tomorrow command the grateful attention of the public. But a patent is not a hunting license. It is not a reward for the search, but compensation for its successful conclusion. '(A) patent system must be related to the world of commerce rather than to the realm of philosophy. * * *'25
28
The judgment of the CCPA is reversed.
29
Reversed.
30
Mr. Justice DOUGLAS, while acquiescing in Part I of the Court's opinion, dissents on the merits of the controversy for substantially the reasons stated by Mr. Justice HARLAN.
31
Mr. Justice HARLAN, concurring in part and dissenting in part.
32
While I join the Court's opinion on the issue of certiorari jurisdiction, I cannot agree with its resolution of the important question of patentability.
33
Respondent has contended that a workable chemical process, which is both new and sufficiently nonobvious to satisfy the patent statute, is by its existence alone a contribution to chemistry and 'useful' as the statute employs that term.1 Certainly this reading of 'useful' in the statute is within the scope of the constitutional grant, which states only that '(t)o promote the Progress of Science and useful Arts,' the exclusive right to 'Writings and Discoveries' may be secured for limited times to those who produce them. Art. I, § 8. Yet the patent statute is somewhat differently worded and is on its face open both to respondent's construction and to the contrary reading given it by the Court. In the absence of legislative history on this issue, we are thrown back on policy and practice. Because I believe that the Court's policy arguments are not convincing and that past practice favors the respondent, I would reject the narrow definition of 'useful' and uphold the judgment of the Court of Customs and Patent Appeals (hereafter CCPA).
34
The Court's opinion sets out about half a dozen reasons in support of its interpretation. Several of these arguments seem to me to have almost no force. For instance, it is suggested that '(u)ntil the process claim has been reduced to production of a product shown to be useful, the metes and bounds of that monopoly are not capable of precise delineation' (p. 534, ante) and '(i)t may engross a vast, unknown, and perhaps unknowable area' (p. 534, ante). I fail to see the relevance of these assertions; process claims are not disallowed because the products they produce may be of 'vast' importance nor, in any event, does advance knowledge of a specific product use provide much safeguard on this score or fix 'metes and bounds' precisely since a hundred more uses may be found after a patent is granted and greatly enhance its value.
35
The further argument that an established product use is part of '(t)he basic quid pro quo' (p. 534, ante) for the patent or is the requisite 'successful conclusion' (p. 536, ante) of the inventor's search appears to beg the very question whether the process is 'useful' simply because it facilitates further research into possible product uses. The same infirmity seems to inhere in the Court's argument that chemical products lacking immediate utility cannot be distinguished for present purposes from the processes which create them, that respondent appears to concede and the CCPA holds that the products are nonpatentable, and that therefore the processes are nonpatentable. Assuming that the two classes cannot be distinguished, a point not adequately considered in the briefs, and assuming further that the CCPA has firmly held such products nonpatentable,2 this permits us to conclude only that the CCPA is wrong either as to the products or as to the processes and affords no basis for deciding whether both or neither should be patentable absent a specific product use.
36
More to the point, I think, are the Court's remaining, prudential arguments against patentability: namely, that disclosure induced by allowing a patent is partly undercut by patent-application drafting techniques, that disclosure may occur without granting a patent, and that a patent will discourage others from inventing uses for the product. How far opaque drafting may lessen the public benefits resulting from the issuance of a patent is not shown by any evidence in this case but, more important, the argument operates against all patents and gives no reason for singling out the class involved here. The thought that these inventions may be more likely than most to be disclosed even if patents are not allowed may have more force; but while empirical study of the industry might reveal that chemical researchers would behave in this fashion, the abstractly logical choice for them seems to me to maintain secrecy until a product use can be discovered. As to discouraging the search by others for product uses, there is no doubt this risk exists but the price paid for any patent is that research on other uses or improvements may be hampered because the original patentee will reap much of the reward. From the standpoint of the public interest the Constitution seems to have resolved that choice in favor of patentability.
37
What I find most troubling about the result reached by the Court is the impact it may have on chemical research. Chemistry is a highly interrelated field and a tangible benefit for society may be the outcome of a number of different discoveries, one discovery building upon the next. To encourage one chemist or research facility to invent and disseminate new processes and products may be vital to progress, although the product or process be without 'utility' as the Court defines the term, because that discovery permits someone else to take a further but perhaps less difficult step leading to a commercially useful item. In my view, our awareness in this age of the importance of achieving and publicizing basic research should lead this Court to resolve uncertainties in its favor and uphold the respondent's position in this case.
38
This position is strengthened, I think, by what appears to have been the practice of the Patent Office during most of this century. While available proof is not conclusive, the commentators seem to be in agreement that until Application of Bremner, 182 F.2d 216, 37 C.C.P.A. (Pat.) 1032, in 1950, chemical patent applications were commonly granted although no resulting end use was stated or the statement was in extremely broad terms.3 Taking this to be true, Bremner represented a deviation from established practice which the CCPA has now sought to remedy in part only to find that the Patent Office does not want to return to the beaten track. If usefulness was typically regarded as inherent during a long and prolific period of chemical research and development in this country, surely this is added reason why the Court's result should not be adopted until Congress expressly mandates it, presumably on the basis of empirical data which this Court does not possess.
39
Fully recognizing that there is ample room for disagreement on this problem when, as here, it is reviewed in the abstract, I believe the decision below should be affirmed.
1
The applicants described the products of their process as '2-methyl dihydrotestosterone derivatives and esters thereof as well as 2-methyl dihydrotestosterone derivatives having a C—17 lower alkyl group. The products of the process of the present invention have a useful high anabolic-androgenic ratio and are especially valuable for treatment of those ailments where an anabolic or antiestrogenic effect together with a lesser androgenic effect is desired.'
2
35 U.S.C. § 135 (1964 ed.) provides: 'Whenever an application is made for a patent which, in the opinion of the Commissioner, would interfere with any pending application, or with any unexpired patent, he shall give notice thereof * * *. The question of priority of invention shall be determined by a board of patent interferences * * * whose decision, if adverse to the claim of an applicant, shall constitute the final refusal by the Patent Office of the claims involved, and the Commissioner may issue a patent to the applicant who is adjudged the prior inventor. * * *'
Patent Office Rule 204(b), 37 CFR § 1.204(b), provides: 'When the filing date or effective filing date of an applicant is subsequent to the filing date of a patentee, the applicant, before an interference will be declared, shall file an affidavit that he made the invention in controversy in this country, before the filing date of the patentee * * * and, when required, the applicant shall file an affidavit * * * setting forth facts which would prima facie entitle him to an award of priority relative to the filing date of the patentee.'
Judge Thurman Arnold has provided an irreverent description of the way patent claims, including 'interferences,' are presented to the Patent Office. See Monsanto Chemical Co. v. Coe, 79 U.S.App.D.C. 155, 145 F.2d 18.
3
'A homologous series is a family of chemically related compounds, the composition of which varies from member to member by CH(2) (one atom of carbon and two atoms of hydrogen) * * *. Chemists knowing the properties of one member of a series would in general know what to expect in adjacent members.' Application of Henze, 181 F.2d 196, 200—201, 37 C.C.P.A. (Pat.) 1009, 1014. See also In re Hass, 141 F.2d 122, 125, 31 C.C.P.A. (Pat.) 895, 901; Application of Norris, 179 F.2d 970, 37 C.C.P.A. (Pat.) 876; Application of Jones, 149 F.2d 501, 32 C.C.P.A. (Pat.) 1020. With respect to the inferior predictability of steroid homologues, see, infra, p. 532.
4
In addition to the clear conflict between the Patent Office and the CCPA, there arguably exists one between the CCPA and the Court of Appeals for the District of Columbia. See Petrocarbon Limited v. Watson, 101 U.S.App.D.C. 214, 247 F.2d 800, cert. denied, 355 U.S. 955, 78 S.Ct. 540, 2 L.Ed.2d 531. But see Application of Szwarc, 319 F.2d 277, 281—286, 50 C.C.P.A. (Pat.) 1571, 1576—1583.
5
The present case is the first in which the Government has taken the position that § 1256 confers jurisdiction upon this Court to review patent decisions in the CCPA. Prior to Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671, the Government was of the view that the Court lacked jurisdiction. See, e.g., the Brief in Opposition in Dalton v. Marzall, No. 87, O.T. 1951, cert. denied, 342 U.S. 818, 72 S.Ct. 33, 96 L.Ed. 619. After the decision in Glidden, discussed infra, at 526, the Government conceded the issue was a close one. See, e.g., Brief in Opposition in In re Gruschwitz, No. 579, O.T. 1963, cert. denied, 375 U.S. 967, 84 S.Ct. 486, 11 L.Ed.2d 416.
6
We find no warrant for this curious limitation either in the statutory language or in the legislative history of § 1256. Nor do we find persuasive the circumstance that the Commissioner may not appeal adverse decisions of the Board of Appeals. 35 U.S.C. §§ 141, 142, and 145 (1964 ed.). As a member of the Board and the official responsible for selecting the membership of its panels, 35 U.S.C. § 7 (1964 ed.), the Commissioner may be appropriately considered as bound by Board determinations. No such consideration operates to prevent his secking review of adverse decisions rendered by the CCPA.
7
Act of March 2, 1927, c. 273, § 11, 44 Stat. 1335, 1336. See Glidden Co. v. Zdanok, supra, 370 U.S. at 572—579, 82 S.Ct. at 1484—1487; Kurland & Wolfson, Supreme Court Review of the Court of Customs and Patent Appeals, 18 Geo.Wash.L.Rev. 192 (1950). This remains the law. 35 U.S.C. §§ 141, 145.
8
Act of March 2, 1929, c. 488, 45 Stat. 1475.
9
See Kurland & Wolfson, op. cit. supra, n. 7, at 196.
10
Apart from Postum, until enactment of § 1256 in 1948 there existed no statutory basis for jurisdiction in these cases. See Robertson & Kirkham, Jurisdiction of the Supreme Court of the United States, § 251 (Wolfson & Kurland ed. 1951).
11
This is not to say that a CCPA determination that an applicant is entitled to a patent precludes a contrary result in a subsequent infringement suit, any more than issuance of a patent by the Patent Office or the decision in an earlier infringement action against a different 'infringer' has that effect. See, e.g., Graham v. John Deere Co., 383 U.S. 1, at 4, 86 S.Ct. 684, at 687. We review decisions of the District Court under 35 U.S.C. § 145 although these are subject to the same measure of readjudication in infringement suits. See Hoover Co. v. Coe, 325 U.S. 79, 65 S.Ct. 955, 89 L.Ed. 1488.
12
Respondent and the amicus curiae take a different view than does the Government of precisely what the issue on the merits is. They argue that the issue of 'patentability' is not properly before us, that the issue actually presented is whether the Primary Examiner in the Patent Office has authority under Rule 204(b) himself to evaluate the sufficiency of affidavits submitted under that Rule.
Both the Board of Appeals and the CCPA rejected this view and focused instead on the question of what averments satisfy the statutory requirement that a claimed chemical process be 'useful.' We agree. First, the issue of 'patentability' cannot be foreclosed by the circumstance that the Patent Office—which, according to counsel for respondent, processes some 1,800 claims and issues 700 patents each week—has already issued a patent to Ringold and Rosenkranz who asserted in their claim that their process yielded useful products. See note 1, supra. Second, there is no basis for the proposition that even where an applicant for an interference presents a claim which on its face is unpatentable, a complicated and frequently lengthy factual inquiry into priority of invention must inexorably take place. On the contrary, Rule 201(a), 37 CFR § 1.201(a), defines an interference proceeding as one involving 'two or mroe parties claiming substantially the same patentable invention and may be instituted as soon as it is determined that common patentable subject matter is claimed * * *.' (Emphasis supplied.) See Application of Rogoff, 261 F.2d 601, 606, 46 C.C.P.A. (Pat.) 733, 739: 'The question as to patentability of claims to an applicant must be determined before any question of interference arises and claims otherwise unpatentable to an applicant cannot be allowed merely in order to set up an interference.' See also Wirkler v. Perkins, 44 C.C.P.A. (Pat.) 1005, 1008, 245 F.2d 502, 504. Cf. Glass v. De Roo, 239 F.2d 402, 44 C.C.P.A. (Pat.) 723.
The current version of Rule 203(a), 37 CFR § 1.203(a), makes it explicit that the examiner, '(b)efore the declaration of interference,' must determine the patentability of the claim as to each party. See also Rule 237, 37 CFR § 1.237.
13
See Act of April 10, 1790, c. 7, 1 Stat. 109; Act of Feb. 21, 1793, c. 11, 1 Stat. 318; Act of July 4, 1836, c. 357, 5 Stat. 117; Act of July 8, 1870, c. 230, 16 Stat. 198; Rev.Stat. § 4886 (1874).
14
35 U.S.C. § 101 (1964 ed.).
15
Thus, in Application of Wilke, 314 F.2d 558, 50 C.C.P.A. (Pat.) 964, the court reversed a Patent Office denial of a process claim, holding that 35 U.S.C. § 112 (1964 ed.) was satisfied even though the specification recited only the manner in which the process was to be used and not any use for the products thereby yielded. See also Application of Adams, 316 F.2d 476, 50 C.C.P.A. (Pat.) 1185.
In Application of Szwarc, 319 F.2d 277, 50 C.C.P.A. (Pat.) 1571, the court acknowledged that its view of the law respecting utility of chemical processes had changed since Bremner. See generally, Note, The Utility Requirement in the Patent Law, 53 Geo.L.J. 154, 175—181 (1964).
16
Respondent couches the issue in terms of whether the process yields a 'known' product. We fail to see the relevance of the fact that the product is 'known,' save to the extent that references to a compound in scientific literature suggest that it might be a subject of interest and possible investigation.
17
In light of our disposition of the case, we express no view as to the patentability of a process whose sole demonstrated utility is to yield a product shown to inhibit the growth of tumors in laboratory animals. See Application of Hitchings, 342 F.2d 80, 52 C.C.P.A. (Pat.) 1141; Application of Bergel, 292 F.2d 955, 48 C.C.P.A. (Pat.) 1102; cf. Application of Dodson, 292 F.2d 943, 48 C.C.P.A. (Pat.) 1125; Application of Krimmel, 292 F.2d 948, 48 C.C.P.A. (Pat.) 1116. For a Patent Office view, see Marcus, The Patent Office and Pharmaceutical Invention, 47 J.Pat.Off.Soc. 669, 673—676 (1965).
18
See n. 3, supra.
19
See respondent's letter requesting amendment, dated July 21, 1960, Record, pp. 20—23. See also Application of Adams, 316 F.2d 476, 479—480, 50 C.C.P.A.(Pat.) 1185, 1190 (concurring-dissenting opinion). In the present case, the Board of Appeals found support in the Ringold article itself for the view that 'minor changes in the structure of a steroid may produce profound changes in its biological activity.' Record, p. 52.
20
Note on the Patent Laws, 3 Wheat.App. 13, 24. See also Justice Story's decisions on circuit in Lowell v. Lewis, 15 Fed.Cas. 1018 (No. 8568) (C.C.D.Mass.), and Bedford v. Hunt, 3 Fed.Cas. 37 (No. 1217) (C.C.D.Mass.).
21
'As a reward for inventions and to encourage their disclosure, the United States offers a seventeen-year monopoly to an inventor who refrains from keeping his invention a trade secret.' Universal Oil Prods. Co. v. Globe Oil & Ref. Co., 322 U.S. 471, 484, 64 S.Ct. 1110, 1116, 88 L.Ed. 1399.
22
See Monsanto Chemical Co. v. Coe, 79 U.S.App.D.C. 155, 158—161, 145 F.2d 18, 21—24.
23
See, e.g., the decision below, 333 F.2d, at 237, 52 C.C.P.A. (Pat.), at 744. See also Application of Bergel, 292 F.2d, at 958, 48 C.C.P.A. (Pat.), at 1105. Cf. Application of Nelson, 280 F.2d, at 180—181, 47 C.C.P.A. (Pat.), at 1043—1044; Application of Folkers, 344 F.2d 970, 52 C.C.P.A. (Pat.) 1269.
24
The committee reports which preceded enactment of the 1952 revision of the patent laws disclose no intention to create such a dichotomy, and in fact provide some evidence that the contrary was assumed. Sen.Rep.No.1979, Committee on the Judiciary, 82d Cong., 2d Sess., 5, 17; H.R.Rep.No.1923, Committee on the Judiciary, 82d Cong., 2d Sess., 6, 17. Cf. Hoxie, A Patent Attorneys's View, 47 J.Pat.Off.Soc. 630, 636 (1965).
25
Application of Ruschig, 343 F.2d 965, 970, 52 C.C.P.A. (Pat.) 1238, 1245 (Rich, J.). See also, Katz v. Horni Signal Mfg. Corp., 145 F.2d 961 (C.A.2d Cir.).
1
The statute in pertinent part is set out in the Court's opinion, p. 529, ante.
2
Any concession by respondent would hardly be controlling on an issue of this general importance, but I am less clear than the Court that such a concession exists. See, e.g., Brief for Respondent, p. 53. As to the CCPA, it is quite true that that court purports in the very case under review and in others to distinguish product patents, although its actual practice may be somewhat less firm. See Application of Adams, 316 F.2d 476, 50 C.C.PA. (pat.) 1185. Application of Nelson, 280 F.2d 172, 47 C.C.P.A. (Pat.) 1031.
3
See, e.g., the statement of a Patent Office Examiner-in-Chief: 'Until recently it was also rather common to get patents on chemical compounds in cases where no use was indicated for the claimed compounds or in which a very broad indication or suggestion as to use was included in the application. (Bremner and another later ruling) * * * have put an end to this practice.' Wolffe, Adequacy of Disclosure as Regards Specific Embodiment and Use of Invention, 41 J.Pat.Off.Soc. (1959). The Government's brief in this case is in accord: '(I)t was apparently assumed by the Patent Office (prior to 1950) * * * that chemical compounds were necessarily useful * * * and that specific inquiry beyond the success of the process was therefore unnecessary * * *.' Brief for the Commissioner, p. 25. See also Cohen & Schwartz, Do Chemical Intermediates Have Patentable Utility? 29 Geo.Wash.L.Rev. 87, 91 (1960); Note, 53 Geo.L.J. 154, 183 (1964); 14 Am.U.L.Rev. 78 (1964).
| 78
|
383 U.S. 502
86 S.Ct. 958
16 L.Ed.2d 56
Edward MISHKIN, Appellant,v.STATE OF NEW YORK.
No. 49.
Argued Dec. 7, 1965.
Decided March 21, 1966.
Rehearing Denied May 2, 1966.
See 384 U.S. 934, 86 S.Ct. 1440.
Emanuel Redfield, New York City, for appellant.
H. Richard Uviller, New York City, for appellee.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case, like Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, also decided today, involves convictions under a criminal obscenity statute. A panel of three judges of the Court of Special Sessions of the City of New York found appellant guilty of violating § 1141 of the New York Penal Law1 by hiring others to prepare obscene books, publishing obscene books, and possessing obscene books with intent to sell them.2 26 Misc.2d 152, 207 N.Y.S.2d 390 (1960). He was sentenced to prison terms aggregating three years and ordered to pay $12,000 in fines for these crimes.3 The Appellate Division, First Department, affirmed those convictions. 17 A.D.2d 243, 234 N.Y.S.2d 342 (1962). The Court of Appeals affirmed without opinion. 15 N.Y.2d 671, 255 N.Y.S.2d 881, 204 N.E.2d 209 (1964), remittitur amended, 15 N.Y.2d 724, 256 N.Y.S.2d 936, 205 N.E.2d 201 (1965). We noted probable jurisdiction. 380 U.S. 960, 85 S.Ct. 1103, 14 L.Ed.2d 15i. We affirm.
2
Appellant was not prosecuted for anything he said or believed, but for what he did, for his dominant role in several enterprises engaged in producing and selling allegedly obscene books. Fifty books are involved in this case. They portray sexuality in many guises. Some depict relatively normal heterosexual relations, but more depict such deviations as sadomasochism, fetishism, and homosexuality. Many have covers with drawings of scantly clad women being whipped, beaten, tortured, or abused. Many, if not most, are photo-offsets of typewritten books written and illustrated by authors and artists according to detailed instructions given by the appellant. Typical of appellant's instructions was that related by one author who testified that appellant insisted that the books be 'full of sex scenes and lesbian scenes * * *. (T)he sex had to be very strong, it had to be rough, it had to be clearly spelled out. * * * I had to write sex very bluntly, make the sex scenes very strong. * * * (T)he sex scenes had to be unusual sex scenes between men and women, and women and women, and men and men. * * * (H)e wanted scenes in which women were making love with women * * *. (H)e wanted sex scenes * * * in which there were lesbian scenes. He didn't call it lesbian, but he described women making love to women and men * * * making love to men, and there were spankings and scenes—sex in an abnormal and irregular fashion.' Another author testified that appellant instructed him 'to deal very graphically with * * * the darkening of the flesh under flagellation * * *.' Artists testified in similar vein as to appellant's instructions regarding illustrations and covers for the books.
3
All the books are cheaply prepared paperbound 'pulps' with imprinted sales prices that are several thousand percent above costs. All but three were printed by a photo-offset printer who was paid 40¢ or 15¢ per copy, depending on whether it was a 'thick' or 'thin' book. The printer was instructed by appellant not to use appellant's name as publisher but to print some fictitious name on each book, to 'make up any name and address.' Appellant stored books on the printer's premises and paid part of the printer's rent for the storage space. The printer filled orders for the books, at appellant's direction, delivering them to appellant's retail store, Publishers' Outlet, and, on occasion, shipping books to other places. Appellant paid the authors, artists, and printer cash for their services, usually at his bookstore.
I.
4
Appellant attacks § 1141 as invalid on its face, contending that it exceeds First Amendment limitations by proscribing publications that are merely sadistic or masochistic, that the terms 'sadistic' and 'masochistic' are impermissibly vague, and that the term 'obscene' is also impermissibly vague. We need not decide the merits of the first two contentions, for the New York courts held in this case that the terms 'sadistic' and 'masochistic,' as well as the other adjectives used in § 1141 to describe proscribed books are 'synonymous with 'obscene." 26 Misc.2d, at 154, 207 N.Y.S.2d, at 393. The contention that the term 'obscene' is also impermissibly vague fails under our holding in Roth v. United States, 354 U.S. 476, 491—492, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498. Indeed, the definition of 'obscene' adopted by the New York courts in interpreting § 1141 delimits a narrower class of conduct than that delimited under the Roth definition, People v. Richmond County News, Inc., 9 N.Y.2d 578, 586—587, 216 N.Y.S.2d 369, 175 N.E.2d 681, 685—686 (1961),4 and thus § 1141, like the statutes in Roth, provides reasonably ascertainable standards of guilt.5
5
Appellant also objects that § 1141 is invalid as applied, first, because the books he was convicted of publishing, hiring others to prepare, and possessing for sale are not obscene, and second, because the proof of scienter is inadequate.
6
1. The Nature of the Material.—The First Amendment prohibits criminal prosecution for the publication and dissemination of allegedly obscene books that do not satisfy the Roth definition of obscenity. States are free to adopt other definitions of obscenity only to the extent that those adopted stay within the bounds set by the constitutional criteria of the Roth definition, which restrict the regulation of the publication and sale of the books to that traditionally and universally tolerated in our society.
7
The New York courts have interpreted obscenity in § 1141 to cover only so-called 'hard-core pornography,' see People v. Richmond County News, Inc., 9 N.Y.2d 578, 586—587, 216 N.Y.S.2d 369, 175 N.E.2d 681, 685—686 (1961), quoted in note 4, supra. Since that definition of obscenity is more stringent than the Roth definition, the judgment that the constitutional criteria are satisfied is implicit in the application of § 1141 below. Indeed, appellant's sole contention regarding the nature of the material is that some of the books involved in this prosecution,6 those depicting various deviant sexual practices, such as flagellation, fetishism, and lesbianism, do not satisfy the prurient-appeal requirement because they do not appeal to a prurient interest of the 'average person' in sex, that 'instead of stimulating the erotic, they disgust and sicken.' We reject this argument as being founded on an unrealistic interpretation of the prurient-appeal requirement.
8
Where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient-appeal requirement of the Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group. The reference to the 'average' or 'normal' person in Roth, 354 U.S., at 489—490, 77 S.Ct., at 1311, does not foreclose this holding.7 In regard to the prurient-appeal requirement, the concept of the 'average' or 'normal' person was employed in Roth to serve the essentially negative purpose of expressing our rejection of that aspect of the Hicklin test, Regina v. Hicklin, (1868) L.R. 3 Q.B. 360, that made the impact on the most susceptible person determinative. We adjust the prurient-appeal requirement to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests of its intended and probable recipient group; and since our holding requires that the recipient group be defined with more specificity than in terms of sexually immature persons,8 it also avoids the inadequacy of the most-susceptible-person facet of the Hicklin test.
9
No substantial claim is made that the books depicting sexually deviant practices are devoid of prurient appeal to sexually deviant groups. The evidence fully establishes that these books were specifically conceived and marketed for such groups. Appellant instructed his authors and artists to prepare the books expressly to induce their purchase by persons who would probably be sexually stimulated by them. It was for this reason that appellant 'wanted an emphasis on beatings and fetishism and clothing—irregular clothing, and that sort of thing, and again sex scenes between women; always sex scenes had to be very strong.' And to be certain that authors fulfilled his purpose, appellant furnished them with such source materials as Caprio, Variations in Sexual Behavior, and Krafft-Ebing, Psychopathia Sexualis. Not only was there proof of the books' prurient appeal, compare United States v. Klaw, 350 F.2d 155 (C.A.2d Cir. 1965), but the proof was compelling; in addition appellant's own evaluation of his material confirms such a finding. See Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942.
10
2. Scienter.—In People v. Finkelstein, 9 N.Y.2d 342, 344—345, 214 N.Y.S.2d 363, 364, 174 N.E.2d 470, 471 (1961), the New York Court of Appeals authoritatively interpreted § 1141 to require the 'vital element of scienter,' and it defined the required mental element in these terms:
11
'A reading of the statute (§ 1141) as a whole clearly indicates that only those who are in some manner aware of the character of the material they attempt to distribute should be punished. It is not innocent but calculated purveyance of filth which is exorcised * * *.'9 (Emphasis added.)
12
Appellant's challenge to the validity of § 1141 founded on Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, is thus foreclosed,10 and this construction of § 1141 makes it unnecessary for us to define today 'what sort of mental element is requisite to a constitutionally permissible prosecution.' Id., at 154, 80 S.Ct. at 219. The Constitution requires proof of scienter to avoid the hazard of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity. The New York definition of the scienter required by § 1141 amply serves those ends, and therefore fully meets the demands of the Constitution.11 Cf. Roth v. United States, 354 U.S., at 495—496, 77 S.Ct., at 1314—1315 (Warren, C.J., concurring).
13
Appellant's principal argument is that there was insufficient proof of scienter. This argument is without merit. The evidence of scienter in this record consists, in part, of appellant's instructions to his artists and writers; his efforts to disguise his role in the enterprise that published and sold the books; the transparency of the character of the material in question, highlighted by the titles, covers, and illustrations; the massive number of obscene books appellant published, hired others to prepare, and possessed for sale; the repetitive quality of the sequences and formats of the books; and the exorbitant prices marked on the books. This evidence amply shows that appellant was 'aware of the character of the material' and that his activity was 'not innocent but calculated purveyance of filth.'
II.
14
Appellant claims that all but one of the books were improperly admitted in evidence because they were fruits of illegal searches and seizures. This claim is not capable in itself of being brought here by appeal, but only by a petition for a writ of certiorari under 28 U.S.C. § 1257(3) (1964 ed.) as specifically setting up a federal constitutional right.12 Nevertheless, since appellant challenged the constitutionality of § 1141 in this prosecution, and the New York courts sustained the statute, the case is properly here on appeal, and our unrestricted notation of probable jurisdiction justified appellant's briefing of the search and seizure issue. Flournoy v. Weiner, 321 U.S. 253, 263, 64 S.Ct. 548, 553, 88 L.Ed. 708; Prudential Ins. Co. v. Cheek, 259 U.S. 530, 547, 42 S.Ct. 516, 523, 66 L.Ed. 1044. The nonappealable issue is treated, however, as if contained in a petition for a writ of certiorari, see 28 U.S.C. § 2103 (1964 ed.) and the unrestricted notation of probable jurisdiction of the appeal is to be understood as a grant of the writ on that issue. The issue thus remains within our certiorari jurisdiction, and we may, for good reason, even at this stage, decline to decide the merits of the issue, much as we would dismiss a writ of certiorari as improvidently granted. We think that this is a case for such an exercise of our discretion.
15
The far-reaching and important questions tendered by this claim are not presented by the record with sufficient clarity to require or justify their decision. Appellant's standing to assert the claim in regard to all the seizures is not entirely clear; there is no finding on the extent or nature of his interest in two book stores, the Main Stem Book Shop and Midget Book Shop, in which some of the books were seized. The State seeks to justify the basement storeroom seizure, in part, n the basis of the consent of the printer-accomplice; but there were no findings as to the authority of the printer over the access to the storeroom, or as to the voluntariness of his alleged consent. It is also maintained that the seizure in the storeroom was made on the authority of a search warrant; yet neither the affidavit upon which the warrant issued nor the warrant itself is in the record. Finally, while the search and seizure issue has a First Amendment aspect because of the alleged massive quality of the seizures, see A Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 206, 84 S.Ct. 1723 (opinion of Brennan, J.); Marcus v. Search Warrants of Property at 104 East Tenth Street, Kansas City, Mo., 367 U.S. 717, 81 S.Ct. 1708, the record in this regard is inadequate. There is neither evidence nor findings as to how many of the total available copies of the books in the various bookstores were seized and it is impossible to determine whether the books seized in the basement storeroom were on the threshold of dissemination. Indeed, this First Amendment aspect apparently was not presented or considered by the state courts, nor was it raised in appellant's jurisdictional statement; it appeared for the first time in his brief on the merits.
16
In light of these circumstances, which were not fully apprehended at the time we took the case, we decline to reach the merits of the search and seizure claim; insofar as notation of probable jurisdiction may be regarded as a grant of the certiorari writ on the search and seizure issue, that writ is dismissed as improvidently granted. 'Examination of a case on the merits * * * may bring into 'proper focus' a consideration which * * * later indicates that the grant was improvident.' The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180, 184, 79 S.Ct. 710, 713, 3 L.Ed.2d 723.
17
Affirmed.
APPENDIX TO OPINION OF THE COURT.
18
THE CONVICTIONS BEING REVIEWED.
19
§ 1141 Counts Naming
20
the Book
21
Exhibit Publishing Hiring
22
No. Title of Book Possession Others
1 Chances Go Around 1 63 111
2 Impact 2 64 112
3 Female Sultan 3 65 113
4 Satin Satellite 4
5 Her Highness 5 67 115
6 Mistress of Leather 6 68 116
7 Educating Edna 7 69 117
8 Strange Passions 8 70 118
23
9 The Whipping Chorus Girls 9 71 119
10 Order Of The Day and Bound
Maritally 10 72 120
11 Dance With the Dominant
Whip 11 73 121
12 Cult Of The Spankers 12 74 122
13 Confessions 13 75 123
24
14 & 46 The Hours Of Torture 14 & 40 76 124
25
15 & 47 Bound In Rubber 15 & 41 77 125
26
16 & 48 Arduous Figure Training at
Bondhaven 16 & 42 78 126
27
17 & 49 Return Visit To Fetterland 17 & 43 79 127
28
18 Fearful Ordeal In Restraintland 18 80 128
29
19 & 50 Women In Distress 19 & 44 81 129
30
20 & 54 Pleasure Parade No. 1 20 & 48 82 130
31
21 & 57 Screaming Flesh 21 & 51 86 134
32
22 & 58 Fury 22 & 52
23 So Firm So Fully Packed 23 87 135
24 I'll Try Anything Twice 24
33
25 & 59 Masque 25 & 53
26 Catanis 26
§ 1141 Counts Naming
34
the Book
35
Exhibit Publishing Hiring
36
No. Title of Book Possession Others
27 The Violated Wrestler 27 89 137
28 Betrayal 28
29 Swish Bottom 29 90 138
30 Raw Dames 30 91 139
31 The Strap Returns 31 92 140
32 Dangerous Years 32 93 141
43 Columns of Agony 37 95 144
44 The Tainted Pleasure 38 96 145
45 Intense Desire 39 97 146
51 Pleasure Parade No. 4 45 85 133
52 Pleasure Parade No. 3 46 84 132
53 Pleasure Parade No. 2 47 83 131
55 Sorority Girls Stringent
Initiation 49 98 147
56 Terror At The Bizarre
Museum 50 99 148
60 Temptation 57
61 Peggy's Distress On Planet
Venus 58 101 150
62 Ways of Discipline 59 102 151
63 Mrs. Tyrant's Finishing
School 60 103 152
64 Perilous Assignment 61 104 153
68 Bondage Correspondence 107 156
69 Woman Impelled 106 155
70 Eye Witness 108 157
71 Stud Broad 109 158
72 Queen Bee 110 159
37
Mr. Justice HARLAN, concurring.
38
On the issue of obscenity I concur in the judgment of affirmance on premises stated in my dissenting opinion in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General, 383 U.S. 455, 86 S.Ct. 996. In all other respects I agree with and join the Court's opinion.
39
Mr. Justice BLACK, dissenting.
40
The Court here affirms convictions and prison sentences aggregating three years plus fines totaling $12,000 imposed on appellant Mishkin based on state charges that he hired others to prepare and publish obscene books and that Mishkin himself possessed such books. This Court has held in many cases that the Fourteenth Amendment makes the First applicable to the States. See for illustration cases collected in my concurring opinion in Speiser v. Randall, 357 U.S. 513, 530, 78 S.Ct. 1332, 1344, 2 L.Ed.2d 1460. Consequently upon the same grounds that I dissented from a five-year federal sentence imposed upon Ginzburg in 383 U.S. 476, 86 S.Ct. 950, for sending 'obscene' printed matter through the United States mails I dissent from affirmance of this three-year state sentence imposed on Mishkin. Neither in this case nor in Ginzburg have I read the alleged obscene matter. This is because I believe for reasons stated in my dissent in Ginzburg and in many other prior cases that this Court is without constitutional power to censor speech or press regardless of the particular subject discussed. I think the federal judiciary because it is appointed for life is the most appropriate tribunal that could be selected to interpret the Constitution and thereby mark the boundaries of what government agencies can and cannot do. But because of life tenure, as well as other reasons, the federal judiciary is the least appropriate branch of government to take over censorship responsibilities by deciding what pictures and writings people throughout the land can be permitted to see and read. When this Court makes particularized rules on what people can see and read, it determines which policies are reasonable and right thereby performing the classical function of legislative bodies directly responsible to the people. Accordingly, I wish once more to express my objections to saddling this Court with the irksome and inevitably unpopular and unwholesome task of finally deciding by a case-by-case, sight-by-sight personal judgment of the members of this Court what pornography (whatever that means) is too hard core for people to see or read. If censorship of views about sex or any other subject is constitutional then I am reluctantly compelled to say that I believe the tedious, time-consuming and unwelcome responsibility for finally deciding what particular discussions or opinions must be suppressed in this country, should, for the good of this Court and of the Nation, be vested in some governmental institution or institutions other than this Court.
41
I would reverse these convictions. The three-year sentence imposed on Mishkin and the five-year sentence imposed on Ginzburg for expressing views about sex are minor in comparison with those more lengthy sentences that are inexorably bound to follow in state and federal courts as pressures and prejudices increase and grow more powerful, which of course they will. Nor is it a sufficient answer to these assuredly ever-increasing punishments to rely on this Court's power to strike down 'cruel and unusual punishments' under the Eighth Amendment. Distorting or stretching that Amendment by reading it as granting unreviewable power to this Court to perform the legislative function of fixing punishments for all state and national offenses offers a sadly inadequate solution to the multitudinous problems generated by what I consider to be the un-American policy of censoring the thoughts and opinions of people. The only practical answer to these concededly almost unanswerable problems is, I think, for this Court to decline to act as a national board of censors over speech and press but instead to stick to its clearly authorized constitutional duty to adjudicate cases over things and conduct. Halfway censorship methods, no matter how laudably motivated, cannot in my judgment protect our cherished First Amendment freedoms from the destructive aggressions of both state and national government. I would reverse this case and announce that the First and Fourteenth Amendments taken together command that neither Congress nor the States shall pass laws which in any manner abridge freedom of speech and press—whatever the subjects discussed. I think the Founders of our Nation in adopting the First Amendment meant precisely that the Federal Government should pass 'no law' regulating speech and press but should confine its legislation to the regulation of conduct. So too, that policy of the First Amendment made applicable to the States by the Fourteenth, leaves the States vast power to regulate conduct but no power at all, in my judgment, to make the expression of views a crime.
42
Mr. Justice STEWART, dissenting.
43
The appellant was sentenced to three years in prison for publishing numerous books. However tawdry those books may be, they are not hard-core pornography, and their publication is, therefore, protected by the First and Fourteenth Amendments. Ginzburg v. United States, 383 U.S. 497, 86 S.Ct. 956 (dissenting opinion). The judgment should be reversed.*
1
Section 1141 of the Penal Law, McKinney's Consol.Laws, c. 40, in pertinent part, reads as follows:
'1. A person who * * * has in his possession with intent to sell, lend, distribute * * * any obscene, lewd, lascivious, filthy, indecent, sadistic, masochistic or disgusting book * * * or who * * * prints, utters, publishes, or in any manner manufactures, or prepares any such book * * * or who
'2. In any manner, hires, employs, uses or permits any person to do or assist in doing any act or thing mentioned in this section, or any of them,
'Is guilty of a misdemeanor * * *.
'4. The possession by any person of six or more identical or similar articles coming within the provisions of subdivision one of this section is presumptive evidence of a violation of this section.
'5. The publication for sale of any book, magazine or pamphlet designed, composed or illustrated as a whole to appeal to and commercially exploit prurient interest by combining covers, pictures, drawings, illustrations, caricatures, cartoons, words, stories and advertisements or any combination or combinations thereof devoted to the description, portrayal or deliberate suggestion of illicit sex, including adultery, prostitution, fornication, sexual crime and sexual perversion or to the exploitation of sex and nudity by the presentation of nude or partially nude female figures, posed, photographed or otherwise presented in a manner calculated to provoke or incite prurient interest, or any combination or combinations thereof, shall be a violation of this section.'
2
The information charged 159 counts of violating § 1141; in each instance a single count named a single book, although often the same book was the basis of three counts, each alleging one of the three types of § 1141 offenses. Of these, 11 counts were dismissed on motion of the prosecutor at the outset of the trial and verdicts of acquittal were entered on seven counts at the end of trial. The remaining § 1141 counts on which appellant was convicted are listed in the Appendix to this opinion.
Appellant was also convicted on 33 counts charging violations of § 330 of the General Business Law, McKinney's Consol.Laws, c. 20, for failing to print the publisher's and printer's names and addresses on the books. The Appellate Division reversed the convictions under these counts, and the Court of Appeals affirmed. The State has not sought review of that decision in this Court.
3
The trial court divided the counts into five groups for purposes of sentencing. One group consisted of the possession counts concerning books seized from a basement storeroom in a warehouse; a second group of possession counts concerned books seized from appellant's retail bookstore, Publishers' Outlet; the third consisted of the publishing counts; the fourth consisted of the counts charging him with hiring others to prepare the books, and the fifth consisted of the counts charging violations of the General Business Law. Sentences of one year and a $3,000 fine were imposed on one count of each of the first four groups; the prison sentences on the first three were made consecutive and that on the count in the fourth group was made concurrent with that in the third group. A $500 fine was imposed on one count in the fifth group. Sentence was suspended on the convictions on all other counts. The suspension of sentence does not render moot the claims as to invalidity of the convictions on those counts.
4
'It (obscene material covered by § 1141) focuses predominantly upon what is sexually morbid, grossly perverse and bizarre, without any artistic or scientific purpose or justification. Recognizable 'by the insult it offers, invariably, to sex, and to the human spirit' (D. H. Lawrence, Pornography and Obscenity (1930), p. 12), it is to be differentiated from the bawdy and the ribald. Depicting dirt for dirt's sake, the obscene is the vile, rather than the coarse, the blow to sense, not merely to sensibility. It smacks, at times, of fantasy and unreality, of sexual perversion and sickness and represents, according to one thoughtful scholar, 'a debauchery of the sexual faculty'. Murray, Literature and Censorship, 14 Books on Trial 393, 394; see, also, Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5, 65.' 9 N.Y.2d, at 587, 216 N.Y.S.2d, at 376, 175 N.E.2d, at 686. See also People v. Fritch, 13 N.Y.2d 119, 123, 243 N.Y.S.2d 1, 5, 192 N.E.2d 713, 716 (1963):
'In addition to the foregoing tests imposed by the decisions of the (United States) Supreme Court, this court interpreted section 1141 of the Penal Law in People v. Richmond County News, Inc. * * * as applicable only to material which may properly be termed 'hard-core pornography."
5
The stringent scienter requirement of § 1141, as interpreted in People v. Finkelstein, 9 N.Y.2d 342, 345, 214 N.Y.S.2d 363, 174 N.E.2d 470, 472 (1961), also eviscerates much of appellant's vagueness claim. See, infra, pp. 510-512. See generally, Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 342, 72 S.Ct. 329, 331, 96 L.Ed. 367; American Communications Ass'n. CIO v. Douds, 339 U.S. 382, 412—413, 70 S.Ct. 674, 690—691, 94 L.Ed. 925; Screws v. United States, 325 U.S. 91, 101—104, 65 S.Ct. 1031, 1035—1036, 89 L.Ed. 1495 (opinion of Mr. Justice Douglas); United States v. Ragen, 314 U.S. 513, 524, 62 S.Ct. 374, 378, 86 L.Ed. 383; Gorin v. United States, 312 U.S. 19, 27—28, 61 S.Ct. 429, 433—434, 85 L.Ed. 488; Hygrade Provision Co. v. Sherman, 266 U.S. 497, 501—503, 45 S.Ct. 141, 142—143, 69 L.Ed. 402; Omaechevarria v. State of Idaho, 246 U.S. 343, 348, 38 S.Ct. 323, 325, 62 L.Ed. 763.
6
It could not be plausibly maintained that all of the appellant's books, including those dominated by descriptions of relatively normal heterosexual relationships, are devoid of the requisite prurient appeal.
7
See Manual Enterprises, Inc. v. Day, 370 U.S. 478, 482, 82 S.Ct. 1432, 1434, 8 L.Ed.2d 639 (opinion of HARLAN, J.); Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5, 72—73 (1960).
It is true that some of the material in Alberts v. State of California, decided with Roth, resembled the deviant material involved here. But no issue involving the obscenity of the material was before us in either case. 354 U.S., at 481, n. 8, 77 S.Ct. 1306. The basic question for decision there was whether the publication and sale of obscenity, however defined, could be criminally punished in light of First Amendment guarantees. Our discussion of definition was not intended to develop all the nuances of a definition required by the constitutional guarantees.
8
See generally, 1 American Handbook of Psychiatry 593—604 (Arieti ed. 1959), for a description of the pertinent types of deviant sexual groups.
9
For a similar scienter requirement see Model Penal Code § 251.4(2); Commentary, Model Penal Code (Tentative Draft No. 6, 1957), 14, 49—51; cf. Schwartz, Morals Offenses and the Model Penal Code, 63 Col.L.Rev. 669, 677 (1963).
We do not read Judge Froessel's parenthetical reference to knowledge of the contents of the books in his opinion in People v. Finkelstein, 11 N.Y.2d 300, 304, 229 N.Y.S.2d 367, 183 N.E.2d 661, 663 (1962), as a modification of this definition of scienter. Cf. People v. Fritch, 13 N.Y.2d 119, 126, 243 N.Y.S.2d 1, 192 N.E.2d 713, 717—718 (1963).
10
The scienter requirement set out in the text would seem to be, as a matter of state law, as applicable to publishers as it is to booksellers; both types of activities are encompassed within subdivision 1 of § 1141. Moreover, there is no need for us to speculate as to whether this scienter requirement is also present in subdivision 2 of § 1141 (making it a crime to hire others to prepare obscene books), for appellant's convictions for that offense involved books for the publication of which he was also convicted.
No constitutional claim was asserted below or in this Court as to the possible duplicative character of the hiring and publishing counts.
11
The first appeal in Finkelstein defining the scienter required by § 1141 was decided after this case was tried, but before the Appellate Division and Court of Appeals affirmed these convictions. We therefore conclude that the state appellate courts were satisfied that the § 1141 scienter requirement was correctly applied at trial.
The § 1141 counts did not allege appellant's knowledge of the character of the books, but appellant has not argued, below or here, that this omission renders the information constitutionally inadequate.
12
Unlike the claim here, the challenges decided in the appeals in Marcus v. Search Warrants of Property at 104 East Tenth St., Kansas City, Mo., 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127, and A Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809, implicated the constitutional validity of statutory schemes establishing procedures for seizing the books.
*
See Ginzburg v. United States, 383 U.S. 497, at 499, note 3, 86 S.Ct. 956, at 957 (dissenting opinion). Moreover, there was no evidence at all that any of the books are the equivalent of hard-core pornography in the eyes of any particularized group of readers. Cf. United States v. Klaw, 350 F.2d 155 (C.A.2d Cir.).
Although the New York Court of Appeals has purported to interpret § 1141 to cover only what it calls 'hard-core pornography,' this case makes abundantly clear that that phrase has by no means been limited in New York to the clearly identifiable and distinct class of material I have described in Ginzburg v. United States, 383 U.S. 497, at 499, note 3, 86 S.8ct. 956, at 957 (dissenting opinion).
| 23
|
383 U.S. 541
86 S.Ct. 1045
16 L.Ed.2d 84
Morris A. KENT, Jr., Petitioner,v.UNITED STATES.
No. 104.
Argued Jan. 19, 1966.
Decided March 21, 1966.
[Syllabus from pages 541-542 intentionally omitted]
Myron G. Ehrlich and Richard Arens, Washington, D.C., for petitioner.
Theodore G. Gilinsky, Washington, D.C., for respondent.
Mr. Justice FORTAS delivered the opinion of the Court.
1
This case is here on certiorari to the United States Court of Appeals for the District of Columbia Circuit. The facts and the contentions of counsel raise a number of disturbing questions concerning the administration by the police and the Juvenile Court authorities of the District of Columbia laws relating to juveniles. Apart from raising questions as to the adequacy of custodial and treatment facilities and policies, some of which are not within judicial competence, the case presents important challenges to the procedure of the police and Juvenile Court officials upon apprehension of a juvenile suspected of serious offenses. Because we conclude that the Juvenile Court's order waiving jurisdiction of petitioner was entered without compliance with required procedures, we remand the case to the trial court.
2
Morris A. Kent, Jr., first came under the authority of the Juvenile Court of the District of Columbia in 1959. He was then aged 14. He was apprehended as a result of several housebreakings and an attempted purse snatching. He was placed on probation, in the custody of his mother who had been separated from her husband since Kent was two years old. Juvenile Court officials interviewed Kent from time to time during the probation period and accumulated a 'Social Service' file.
3
On September 2, 1961, an intruder entered the apartment of a woman in the District of Columbia. He took her wallet. He raped her. The police found in the apartment latent fingerprints. They were developed and processed. They matched the fingerprints of Morris Kent, taken when he was 14 years old and under the jurisdiction of the Juvenile Court. At about 3 p.m. on September 5, 1961, Kent was taken into custody by the police. Kent was then 16 and therefore subject to the 'exclusive jurisdiction' of the Juvenile Court. D.C.Code § 11—907 (1961), now § 11—1551 (Supp. IV, 1965). He was still on probation to that court as a result of the 1959 proceedings.
4
Upon being apprehended, Kent was taken to police headquarters where he was interrogated by police officers. It appears that he admitted his involvement in the offense which led to his apprehension and volunteered information as to similar offenses involving housebreaking, robbery, and rape. His interrogation proceeded from about 3 p.m. to 10 p.m. the same evening.1
5
Some time after 10 p.m. petitioner was taken to the Receiving Home for Children. The next morning he was released to the police for further interrogation at police headquarters, which lasted until 5 p.m.2
6
The record does not show when his mother became aware that the boy was in custody but shortly after 2 p.m. on September 6, 1961, the day following petitioner's apprehension, she retained counsel.
7
Counsel, together with petitioner's mother, promptly conferred with the Social Service Director of the Juvenile Court. In a brief interview, they discussed the possibility that the Juvenile Court might waive jurisdiction under D.C.Code § 11-914 (1961), now § 11—1553 (Supp. IV, 1965) and remit Kent to trial by the District Court. Counsel made known his intention to oppose waiver.
8
Petitioner was detained at the Receiving Home for almost a week. There was no arraignment during this time, no determination by a judicial officer of probable cause for petitioner's apprehension.3
9
During this period of detention and interrogation, petitioner's counsel arranged for examination of petitioner by two psychiatrists and a psychologist. He thereafter filed with the Juvenile Court a motion for a hearing on the question of waiver of Juvenile Court jurisdiction, together with an affidavit of a psychiatrist certifying that petitioner 'is a victim of servere psychopathology' and recommending hospitalization for psychiatric observation. Petitioner's counsel, in support of his motion to the effect that the Juvenile Court should retain jurisdiction of petitioner, offered to prove that if petitioner were given adequate treatment in a hospital under the aegis of the Juvenile Court, he would be a suitable subject for rehabilitation.
10
At the same time, petitioner's counsel moved that the Juvenile Court should give him access to the Social Service file relating to petitioner which had been accumulated by the staff of the Juvenile Court during petitioner's probation period, and which would be available to the Juvenile Court judge in considering the question whether it should retain or waive jurisdiction. Petitioner's counsel represented that access to this file was essential to his providing petitioner with effective assistance of counsel.
11
The Juvenile Court judge did not rule on these motions. He held no hearing. He did not confer with petitioner or petitioner's parents or petitioner's counsel. He entered an order reciting that after 'full investigation, I do hereby waive' jurisdiction of petitioner and directing that he be 'held for trial for (the alleged) offenses under the regular procedure of the U.S. District Court for the District of Columbia.' He made no findings. He did not recite any reason for the waiver.4 He made no reference to the motions filed by petitioner's counsel. We must assume that he denied, sub silentio, the motions for a hearing, the recommendation for hospitization for psychiatric observation, the request for access to the Social Service file, and the offer to prove that petitioner was a fit subject for rehabilitation under the Juvenile Court's jurisdiction.5
12
Presumably, prior to entry of his order, the Juvenile Court judge received and considered recommendations of the Juvenile Court staff, the Social Service file relating to petitioner, and a report dated September 8, 1961 (three days following petitioner's apprehension), submitted to him by the Juvenile Probation Section. The Social Service file and the September 8 report were later sent to the District Court and it appears that both of them referred to petitioner's mental condition. The September 8 report spoke of 'a rapid deterioration of (petitioner's) personality structure and the possibility of mental illness.' As stated, neither this report nor the Social Service file was made available to petitioner's counsel.
13
The provision of the Juvenile Court Act governing waiver expressly provides only for 'full investigation.' It states the circumstances in which jurisdiction may be waived and the child held for trial under adult procedures, but it does not state standards to govern the Juvenile Court's decision as to waiver. The provision reads as follows:
14
'If a child sixteen years of age or older is charged with an offense which would amount to a felony in the case of an adult, or any child charged with an offense which if committed by an adult is punishable by death or life imprisonment, the judge may, after full investigation, waive jurisdiction and order such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult; or such other court may exercise the powers conferred upon the juvenile court in this subchapter in conducting and disposing of such cases.'6
15
Petiioner appealed from the Juvenile Court's waiver order to the Municipal Court of Appeals, which affirmed, and also applied to the United States District Court for a writ of habeas corpus, which was denied. On appeal from these judgments, the United States Court of Appeals held on January 22, 1963, that neither appeal to the Municipal Court of Appeals nor habeas corpus was available. In the Court of Appeals' view, the exclusive method of reviewing the Juvenile Court's waiver order was a motion to dismiss the indictment in the District Court. Kent v. Reid, 114 U.S.App.D.C. 330, 316 F.2d 331 (1963).
16
Meanwhile, on September 25, 1961, shortly after the Juvenile Court order waiving its jurisdiction, petitioner was indicted by a grand jury of the United States District Court for the District of Columbia. The indictment contained eight counts alleging two instances of housebreaking, robbery, and rape, and one of housebreaking and robbery. On November 16, 1961, petitioner moved the District Court to dismiss the indictment on the grounds that the waiver was invalid. He also moved the District Court to constitute itself a Juvenile Court as authorized by D.C.Code § 11 914 (1961), now § 11—1553 (Supp. IV, 1965). After substantial delay occasioned by petitioner's appeal and habeas corpus proceedings, the District Court addressed itself to the motion to dismiss on February 8, 1963.7
17
The District Court denied the motion to dismiss the indictment. The District Court ruled that it would not 'go behind' the Juvenile Court judge's recital that his order was entered 'after full investigation.' It held that 'The only matter before me is as to whether or not the statutory provisions were complied with and the Courts have held * * * with reference to full investigation, that that does not mean a quasi judicial or judicial hearing. No hearing is required.'
18
On March 7, 1963, the District Court held a hearing on petitioner's motion to determine his competency to stand trial. The court determined that petitioner was competent.8
19
At trial, petitioner's defense was wholly directed toward proving that he was not criminally responsible because 'his unlawful act was the product of mental disease or mental defect.' Durham v. United States, 94 U.S.App.D.C. 228, 241, 214 F.2d 862, 875, 45 A.L.R.2d 1430 (1954). Extensive evidence, including expert testimony, was presented to support this defense. The jury found as to the counts alleging rape that petitioner was 'not guilty by reason of insanity.' Under District of Columbia law, this made it mandatory that petitioner be transferred to St. Elizabeths Hospital, a mental institution, until his sanity is restored.9 On the six counts of housebreaking and robbery, the jury found that petitioner was guilty.10
20
Kent was sentenced to serve five to 15 years on each count as to which he was found guilty, or a total of 30 to 90 years in prison. The District Court ordered that the time to be spent at St. Elizabeths on the mandatory commitment after the insanity acquittal be counted as part of the 30- to 90-year sentence. Petitioner appealed to the United States Court of Appeals for the District of Columbia Circuit. That court affirmed. 119 U.S.App.D.C. 378, 343 F.2d 247 (1964).11
21
Before the Court of Appeals and in this Court, petitioner's counsel has urged a number of grounds for reversal. He argues that petitioner's detention and interrogation, described above, were unlawful. He contends that the police failed to follow the procedure prescribed by the Juvenile Court Act in that they failed to notify the parents of the child and the Juvenile Court itself, note 1, supra; that petitioner was deprived of his liberty for about a week without a determination of probable cause which would have been required in the case of an adult, see note 3, supra; that he was interrogated by the police in the absence of counsel or a parent, cf. Harling v. United States, 111 U.S.App.D.C. 174, 176, 295 F.2d 161, 163, n. 12 (1961), without warning of his right to remain silent or advice as to his right to counsel, in asserted violation of the Juvenile Court Act and in violation of rights that he would have if he were an adult; and that petitioner was fingerprinted in violation of the asserted intent of the Juvenile Court Act and while unlawfully detained and that the fingerprints were unlawfully used in the District Court proceeding.12
22
These contentions raise problems of substantial concern as to the construction of and compliance with the Juvenile Court Act. They also suggest basic issues as to the justifiability of affording a juvenile less protection than is accorded to adults suspected of criminal offenses, particularly where, as here, there is an absence of any indication that the denial of rights available to adults was offset, mitigated or explained by action of the Government, as parens patriae, evidencing the special solicitude for juveniles commanded by the Juvenile Court Act. However, because we remand the case on account of the procedural error with respect to waiver of jurisdiction, we do not pass upon these questions.13
23
It is to petitioner's arguments as to the infirmity of the proceedings by which the Juvenile Court waived its otherwise exclusive jurisdiction that we address our attention. Petitioner attacks the waiver of jurisdiction on a number of statutory and constitutional grounds. He contends that the waiver is defective because no hearing was held; because no findings were made by the Juvenile Court; because the Juvenile Court stated no reasons for waiver; and because counsel was denied access to the Social Service file which presumably was considered by the Juvenile Court in determining to waive jurisdiction.
24
We agree that the order of the Juvenile Court waiving its jurisdiction and transferring petitioner for trial in the United States District Court for the District of Columbia was invalid. There is no question that the order is reviewable on motion to dismiss the indictment in the District Court, as specified by the Court of Appeals in this case. Kent v. Reid, supra. The issue is the standards to be applied upon such review.
25
We agree with the Court of Appeals that the statute contemplates that the Juvenile Court should have considerable latitude within which to determine whether it should retain jurisdiction over a child or—subject to the statutory delimitation14—should waive jurisdiction. But this latitude is not complete. At the outset, it assumes procedural regularity sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness, as well as compliance with the statutory requirement of a 'full investigation.' Green v. United States, 113 U.S.App.D.C. 348, 308 F.2d 303 (1962).15 The statute gives the Juvenile Court a substantial degree of discretion as to the factual considerations to be evaluated, the weight to be given them and the conclusion to be reached. It does not confer upon the Juvenile Court a license for arbitrary procedure. The statute does not permit the Juvenile Court to determine in isolation and without the participation or any representation of the child the 'critically important' question whether a child will be deprived of the special protections and provisions of the Juvenile Court Act.16 It does not authorize the Juvenile Court, in total disregard of a motion for hearing filed by counsel, and without any hearing or statement or reasons, to decide—as in this case—that the child will be taken from the Receiving Home for Children and transferred to jail along with adults, and that he will be exposed to the possibility of a death sentence17 instead of treatment for a maximum, in Kent's case, of five years, until he is 21.18
26
We do not consider whether, on the merits, Kent should have been transferred; but there is no place in our system of law for reaching a result of such tremendous consequences without ceremony without hearing, without effective assistance of counsel, without a statement of reasons. It is inconceivable that a court of justice dealing with adults, with respect to a similar issue, would proceed in this manner. It would be extraordinary if society's special concern for children, as reflected in the District of Columbia's Juvenile Court Act, permitted this procedure. We hold that it does not.
27
1. The theory of the District's Juvenile Court Act, like that of other jurisdictions,19 is rooted in social welfare philosophy rather than in the corpus juris. Its proceedings are designated as civil rather than criminal. The Juvenile Court is theoretically engaged in determining the needs of the child and of society rather than adjudicating criminal conduct. The objectives are to provide measures of guidance and rehabilitation for the child and protection for society, not to fix criminal responsibility, guilt and punishment. The State is parens patriae rather than prosecuting attorney and judge.20 But the admonition to function in a 'parental' relationship is not an invitation to procedural arbitrariness.
28
2. Because the State is supposed to proceed in respect of the child as parens patriae and not as adversary, courts have relied on the premise that the proceedings are 'civil' in nature and not criminal, and have asserted that the child cannot complain of the deprivation of important rights available in criminal cases. It has been asserted that he can claim only the fundamental due process right to fair treatment.21 For example, it has been held that he is not entitled to bail; to indictment by grand jury; to a speedy and public trial; to trial by jury; to immunity against self-incrimination; to confrontation of his accusers; and in some jurisdictions (but not in the District of Columbia, see Shioutakon v. District of Columbia, 98 U.S.App.D.C. 371, 236 F.2d 666 (1956), and Black v. United States, supra) that he is not entitled to counsel.22
29
While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guaranties applicable to adults.23 There is much evidence that some juvenile courts, including that of the District of Columbia, lack the personnel, facilities and techniques to perform adequately as representatives of the State in a parens patriae capacity, at least with respect to children charged with law violation. There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.24
30
This concern, however, does not induce us in this case to accept the invitation25 to rule that constitutional guaranties which would be applicable to adults charged with the serious offenses for which Kent was tried must be applied in juvenile court proceedings concerned with allegations of law violation. The Juvenile Court Act and the decisions of the United States Court of Appeals for the District of Columbia Circuit provide an adequate basis for decision of this case, and we go no further.
31
3. It is clear beyond dispute that the waiver of jurisdiction is a 'critically important' action determining vitally important statutory rights of the juvenile. The Court of Appeals for the District of Columbia Circuit has so held. See Black v. United States, supra; Watkins v. United States, 119 U.S.App.D.C. 409, 343 F.2d 278 (1964). The statutory scheme makes this plain. The Juvenile Court is vested with 'original and exclusive jurisdiction' of the child. This jurisdiction confers special rights and immunities. He is, as specified by the statute, shielded from publicity. He may be confined, but with rare exceptions he may not be jailed along with adults. He may be detained, but only until he is 21 years of age. The court is admonished by the statute to give preference to retaining the child in the custody of his parents 'unless his welfare and the safety and protection of the public can not be adequately safeguarded without * * * removal.' The child is protected against consequences of adult conviction such as the loss of civil rights, the use of adjudication against him in subsequent proceedings, and disqualification for public employment. D.C.Code §§ 11—907, 11 915, 11—927, 11—929 (1961).26
32
The net, therefore, is that petitioner—then a boy of 16—was by statute entitled to certain procedures and benefits as a consequence of his statutory right to the 'exclusive' jurisdiction of the Juvenile Court. In these circumstances, considering particularly that decision as to waiver of jurisdiction and transfer of the matter to the District Court was potentially as important to petitioner as the difference between five years' confinement and a death sentence, we conclude that, as a condition to a valid waiver order, petitioner as entitled to a hearing, including access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons for the Juvenile Court's decision. We believe that this result is required by the statute read in the context of constitutional principles relating to due process and the assistance of counsel.27
33
The Court of Appeals in this case relied upon Wilhite v. United States, 108 U.S.App.D.C. 279, 281 F.2d 642 (1960). In that case, the Court of Appeals held, for purposes of a determination as to waiver of jurisdiction, that no formal hearing is required and that the 'full investigation' required of the Juvenile Court need only be such 'as is needed to satisfy that court * * * on the question of waiver.'28 (Emphasis supplied.) The authority of Wilhite, however, is substantially undermined by other, more recent, decisions of the Court of Appeals.
34
In Black v. United States, decided by the Court of Appeals on December 8, 1965, the court29 held that assistance of counsel in the 'critically important' determination of waiver is essential to the proper administration of juvenile proceedings. Because the juvenile was not advised of his right to retained or appointed counsel, the judgment of the District Court, following waiver of jurisdiction by the Juvenile Court, was reversed. The court relied upon its decision in Shioutakon v. District of Columbia, 98 U.S.App.D.C. 371, 236 F.2d 666 (1956), in which it had held that effective assistance of counsel in juvenile court proceedings is essential. See also McDaniel v. Shea, 108 U.S.App.D.C. 15, 278 F.2d 460 (1960). In Black, the court referred to the Criminal Justice Act, enacted four years after Shioutakon, in which Congress provided for the assistance of counsel 'in proceedings before the juvenile court of the District of Columbia.' D.C.Code § 2—2202 (1961). The court held that 'The need is even greater in the adjudication of waiver (than in a case like Shioutakon) since it contemplates the imposition of criminal sanctions.' 122 U.S.App.D.C., at 395, 355 F.2d, at 106.
35
In Wakins v. United States, 119 U.S.App.D.C. 409, 343 F.2d 278 (1964), decided in November 1964, the Juvenile Court had waived jurisdiction of appellant who was charged with housebreaking and larceny. In the District Court, appellant sought disclosure of the social record in order to attack the validity of the waiver. The Court of Appeals held that in a waiver proceeding a juvenile's attorney is entitled to access to such records. The court observed that
36
'All of the social records concerning the child are usually relevant to waiver since the Juvenile Court must be deemed to consider the entire history of the child in determining waiver. The relevance of particular items must be construed generously. Since an attorney has no certain knowledge of what the social records contain, he cannot be expected to demonstrate the relevance of particular items in his request.
37
'The child's attorney must be advised of the information upon which the Juvenile Court relied in order to assist effectively in the determination of the waiver question, by insisting upon the statutory command that waiver can be ordered only after 'full investigation,' and by guarding against action of the Juvenile Court beyond its discretionary authority.' 119 U.S.App.D.C., at 413, 343 F.2d, at 282.
38
The court remanded the record to the District Court for a determination of the extent to which the records should be disclosed.
39
The Court of Appeals' decision in the present case was handed down on October 26, 1964, prior to its decisions in Black and Watkins. The Court of Appeals assumed that since petitioner had been a probationer of the Juvenile Court for two years, that court had before it sufficient evidence to make an informed judgment. It therefore concluded that the statutory requirement of a 'full investigation' had been met. It noted the absence of 'a specification by the Juvenile Court Judge of precisely why he concluded to waive jurisdiction.' 119 U.S.App.D.C., at 384, 343 F.2d at 253. While it indicated that 'in some cases at least' a useful purpose might be served 'by a discussion of the reasons motivating the determination,' id., at 384, 343 F.2d, at 253, n. 6, it did not conclude that the absence thereof invalidated the waiver.
40
As to the denial of access to the social records, the Court of Appeals stated that 'the statute is ambiguous.' It said that petitioner's claim, in essence, is 'that counsel should have the opportunity to challenge them, presumably in a manner akin to cross-examination.' Id., at 389, 343 F.2d, at 258. It held, however, that this is 'the kind of adversarial tactics which the system is designed to avoid.' It characterized counsel's proper function as being merely that of bringing forward affirmative information which might help the court. His function, the Court of Appeals said, 'is not to denigrate the staff's submissions and recommendations.' Ibid. Accordingly, it held that the Juvenile Court had not abused its discretion in denying access to the social records.
41
We are of the opinion that the Court of Appeals misconceived the basic issue and the underlying values in this case. It did note, as another panel of the same court did a few months later in Black and Watkins, that the determination of whether to transfer a child from the statutory structure of the Juvenile Court to the criminal processes of the District Court is 'critically important.' We hold that it is, indeed, a 'critically important' proceeding. The Juvenile Court Act confers upon the child a right to avail himself of that court's 'exclusive' jurisdiction. As the Court of Appeals has said, '(I)t is implicit in (the Juvenile Court) scheme that non-criminal treatment is to be the rule—and the adult criminal treatment, the exception which must be governed by the particular factors of individual cases.' Harling v. United States, 111 U.S.App.D.C. 174, 177—178, 295 F.2d 161, 164 165 (1961).
42
Meaningful review requires that the reviewing court should review. It should not be remitted to assumptions. It must have before it a statement of the reasons motivating the waiver including, of course, a statement of the relevant facts. It may not 'assume' that there are adequate reasons, nor may it merely assume that 'full investigation' has been made. Accordingly, we hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the statute as requiring that this statement must be formal or that it should necessarily include conventional findings of fact. But the statement should be sufficient to demonstrate that the statutory requirement of 'full investigation' has been met; and that the question has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review.
43
Correspondingly, we conclude that an opportunity for a hearing which may be informal, must be given the child prior to entry of a waiver order. Under Black, the child is entitled to counsel in connection with a waiver proceeding, and under Watkins, counsel is entitled to see the child's social records. These rights are meaningless—an illusion, a mockery—unless counsel is given an opportunity to function.
44
The right to representation by counsel is not a formality. It is not a grudging gesture to a ritualistic requirement. It is of the essence of justice. Appointment of counsel without affording an opportunity for hearing on a 'critically important' decision is tantamount to denial of counsel. There is no justification for the failure of the Juvenile Court to rule on the motion for hearing filed by petitioner's counsel, and it was error to fail to grant a hearing.
45
We do not mean by this to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment. Pee v. United States, 107 U.S.App.D.C. 47, 50, 274 F.2d 556, 559 (1959).
46
With respect to access by the child's counsel to the social records of the child, we deem it obvious that since these are to be considered by the Juvenile Court in making its decision to waive, they must be made available to the child's counsel. This is what the Court of Appeals itself held in Watkins. There is no doubt as to the statutory basis for this conclusion, as the Court of Appeals pointed out in Watkins. We cannot agree with the Court of Appeals in the present case that the statute is 'ambiguous.' The statute expressly provides that the record shall be withheld from 'indiscriminate' public inspection, 'except that such records or parts thereof shall be made available by rule of court or special order of court to such persons * * * as have a legitimate interest in the protection* * * of the child * * *.' D.C.Code § 11 929(b) (1961), now § 11—1586(b) (Supp. IV, 1965). (Emphasis supplied.)30 The Court of Appeals has held in Black, and we agree, that counsel must be afforded to the child in waiver proceedings. Counsel, therefore, have a 'legitimate interest' in the protection of the child, and must be afforded access to these records.31
47
We do not agree with the Court of Appeals' statement, attempting to justify denial of access to these records, that counsel's role is limited to presenting 'to the court anything on behalf of the child which might help the court in arriving at a decision; it is not to denigrate the staff's submissions and recommendations.' On the contrary, if the staff's submissions include materials which are susceptible to challenge or impeachment, it is precisely the role of counsel to 'denigrate' such matter. There is no irrebuttable presumption of accuracy attached to staff reports. If a decision on waiver is 'critically important' it is equally of 'critical importance' that the material submitted to the judge—which is protected by the statute only against 'indiscriminate' inspection—be subjected, within reasonable limits having regard to the theory of the Juvenile Court Act, to examination, criticism and refutation. While the Juvenile Court judge may, of course, receive ex parte analyses and recommendations from his staff, he may not, for purposes of a decision on waiver, receive and rely upon secret information, whether emanating from his staff or otherwise. The Juvenile Court is governed in this respect by the established principles which control courts and quasi-judicial agencies of the Government.
48
For the reasons stated, we conclude that the Court of Appeals and the District Court erred in sustaining the validity of the waiver by the Juvenile Court. The Government urges that any error committed by the Juvenile Court was cured by the proceedings before the District Court. It is true that the District Court considered and denied a motion to dismiss on the grounds of the invalidity of the waiver order of the Juvenile Court, and that it considered and denied a motion that it should itself, as authorized by statute, proceed in this case to 'exercise the powers conferred upon the juvenile court.' D.C.Code § 11—914 (1961), now § 11—1553 (Supp. IV, 1965). But we agree with the Court of Appeals in Black, that 'the waiver question was primarily and initially one for the Juvenile Court to decide and its failure to do so in a valid manner cannot be said to be harmless error. It is the Juvenile Court, not the District Court, which has the facilities, personnel and expertise for a proper determination of the waiver issue.' 122 U.S.App.D.C., at 396, 355 F.2d, at 107.32
49
Ordinarily we would reverse the Court of Appeals and direct the District Court to remand the case to the Juvenile Court for a new determination of waiver. If on remand the decision were against waiver, the indictment in the District Court would be dismissed. See Black v. United States, supra. However, petitioner has now passed the age of 21 and the Juvenile Court can no longer exercise jurisdiction over him. In view of the unavailability of a redetermination of the waiver question by the Juvenile Court, it is urged by petitioner that the conviction should be vacated and the indictment dismissed. In the circumstances of this case, and in light of the remedy which the Court of Appeals fashioned in Black, supra, we do not consider it appropriate to grant this drastic relief.33 Accordingly, we vacate the order of the Court of Appeals and the judgment of the District Court and remand the case to the District Court for a hearing de novo on waiver, consistent with this opinion.34 If that court finds that waiver was inappropriate, petitioner's conviction must be vacated. If, however, it finds that the waiver order was proper when originally made, the District Court may proceed, after consideration of such motions as counsel may make and such further proceedings, if any, as may be warranted, to enter an appropriate judgment. Cf. Black v. United States, supra.
50
Reversed and remanded.
APPENDIX TO OPINION OF THE COURT
51
Policy Memorandum No. 7, November 30, 1959.
52
The authority of the Judge of the Juvenile Court of the District of Columbia to waive or transfer jurisdiction to the U.S. District Court for the District of Columbia is contained in the Juvenile Court Act (§ 11—914 D.C.Code, 1951 Ed.). This section permits the Judge to waive jurisdiction 'after full investigation' in the case of any child 'sixteen years of age or older (who is) charged with an offense which would amount to a felony in the case of an adult, or any child charged with an offense which if committed by an adult is punishable by death or life imprisonment.'
53
The statute sets forth no specific standards for the exercise of this important discretionary act, but leaves the formulation of such criteria to the Judge. A knowledge of the Judge's criteria is important to the child, his parents, his attorney, to the judges of the U.S. District Court for the District of Columbia, to the United States Attorney and his assistants and to the Metropolitan Police Department, as well as to the staff of this court, especially the Juvenile Intake Section.
54
Therefore, the Judge has consulted with the Chief Judge and other judges of the U.S. District Court for the District of Columbia, with the United States Attorney, with representatives of the Bar, and with other groups concerned and has formulated the following criteria and principles concerning waiver of jurisdiction which are consistent with the basic aims and purpose of the Juvenile Court Act.
55
An offense falling within the statutory limitations (set forth above) will be waived if it has prosecutive merit and if it is heinous or of an aggravated character, or—even though less serious—if it represents a pattern of repeated offenses which indicate that the juvenile may be beyond rehabilitation under Juvenile Court procedures, or if the public needs the protection afforded by such action.
56
The determinative factors which will be considered by the Judge in deciding whether the Juvenile Court's jurisdiction over such offenses will be waived are the following:
57
1. The seriousness of the alleged offense to the community and whether the protection of the community requires waiver.
58
2. Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner.
59
3. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons especially if personal injury resulted.
60
4. The prosecutive merit of the complaint, i.e., whether there is evidence upon which a Grand Jury may be expected to return an indictment (to be determined by consultation with the United States Attorney).
61
5. The desirability of trial and disposition of the entire offense in one court when the juvenile's associates in the alleged offense are adults who will be charged with a crime in the U.S. District Court for the District of Columbia.
62
6. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living.
63
7. The record and previous history of the juvenile, including previous contacts with the Youth Aid Division, other law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to this Court, or prior commitments to juvenile institutions.
64
8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services and facilities currently available to the Juvenile Court.
65
It will be the responsibility of any officer of the Court's staff assigned to make the investigation of any complaint in which waiver of jurisdiction is being considered to develop fully all available information which may bear upon the criteria and factors set forth above. Although not all such factors will be involved in an individual case, the Judge will consider the relevant factors in a specific case before reaching a conclusion to waive juvenile jurisdiction and transfer the case to the U.S. District Court for the District of Columbia for trial under the adult procedures of that Court.
66
Mr. Justice STEWART, with whom Mr. Justice BLACK, Mr. Justice HARLAN and Mr. Justice WHITE join, dissenting.
67
This case involves the construction of a statute applicable only to the District of Columbia. Our general practice is to leave undisturbed decisions of the Court of Appeals for the District of Columbia Circuit concerning the import of legislation governing the affairs of the District. General Motors Corp. v. District of Columbia, 380 U.S. 553, 556, 85 S.Ct. 1156, 14 L.Ed.2d 68. It appears, however, that two cases decided by the Court of Appeals subsequent to its decision in the present case may have considerably modified the court's construction of the statute. Therefore, I would vacate this judgment and remand the case to the Court of Appeals for reconsideration in the light of its subsequent decisions, Watkins v. United States, 119 U.S.App.D.C. 409, 343 F.2d 278, and Black v. United States, 122 U.S.App.D.C. 393, 355 F.2d 104.
1
There is no indication in the file that the police complied with the requirement of the District Code that a child taken into custody, unless released to his parent, guardian or custodian, 'shall be placed in the custody of a probation officer or other person designated by the court, or taken immediately to the court or to a place of detention provided by the Board of Public Welfare, and the officer taking him shall immediately notify the court and shall file a petition when directed to do so by the court.' D.C.Code § 11—912 (1961), now § 16—2306 (Supp. IV, 1965).
2
The elicited statements were not used in the subsequent trial before the United States District Court. Since the statements were made while petitioner was subject to the jurisdiction of the Juvenile Court, they were inadmissible in a subsequent criminal prosecution under the rule of Harling v. United States, 111 U.S.App.D.C. 174, 295 F.2d 161 (1961).
3
In the case of adults, arraignment before a magistrate for determination of probable cause and advice to the arrested person as to his rights, etc., are provided by law and are regarded as fundamental. Cf. Fed.Rules Crim.Proc. 5(a), (b); Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. In Harling v. United States, supra, the Court of Appeals for the District of Columbia has stated the basis for this distinction between juveniles and adults as follows:
'It is, of course, because children are, generally speaking, exempt from criminal penalties that safeguards of the criminal law, such as Rule 5 and the exclusionary Mallory rule, have no general application in juvenile proceedings.' 111 U.S.App.D.C., at 176, 295 F.2d, at 163.
In Edwards v. United States, 117 U.S.App.D.C. 383, 384, 330 F.2d 849, 850 (1964) it was said that: '* * * special practices * * * follow the apprehension of a juvenile. He may be held in custody by the juvenile authorities—and is available to investigating officers—for five days before any formal action need be taken. There is no duty to take him before a magistrate, and no responsibility to inform him of his rights. He is not booked. The statutory intent is to establish a non-punitive, non-criminal atmosphere.'
We indicate no view as to the legality of these practices. Cf. Harling v. United States, supra, 111 U.S.App.D.C., at 176, 295 F.2d, at 163, n. 12.
4
At the time of these events, there was in effect Policy Memorandum No. 7 of November 30, 1959, promulgated by the judge of the Juvenile Court to set forth the criteria to govern disposition of waiver requests. It is set forth in the Appendix. This Memorandum has since been rescinded. See United States v. Caviness, 239 F.Supp. 545, 550 (D.C.D.C.1965).
5
It should be noted that at this time the statute provided for only one Juvenile Court judge. Congressional hearings and reports attest the impossibility of the burden which he was supposed to carry. See Amending the Juvenile Court Act of the District of Columbia. Hearings before Subcommittee No. 3 of the House Committee on the District of Columbia, 87th Cong., 1st Sess. (1961); Juvenile Delinquency, Hearings before the Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, 86th Cong., 1st Sess. (1959—1960); Additional Judges for Juvenile Court, Hearing before the House Committee on the District of Columbia, 86th Cong., 1st Sess. (1959); H.R.Rep.No.1041, 87th Cong., 1st Sess. (1961); S.Rep.No.841, 87th Cong., 1st Sess. (1961); S.Rep.No.116, 86th Cong., 1st Sess. (1959). The statute was amended in 1962 to provide for three judges for the court. 76 Stat. 21; D.C.Code § 11—1502 (Supp. IV, 1965).
6
D.C.Code § 11—914 (1961), now § 11—1553 (Supp. IV, 1965).
7
On February 5, 1963, the motion to the District Court to constitute itself a Juvenile Court was denied. The motion was renewed orally and denied on February 8, 1963, after the District Court's decision that the indictment should not be dismissed.
8
The District Court had before it extensive information as to petitioner's mental condition, hearing upon both competence to stand trial and the defense of insanity. The court had obtained the 'Social Service' file from the Juvenile Court and had made it available to petitioner's counsel. On October 13, 1961, the District Court had granted petitioner's motion of October 6 for commitment to the Psychiatric Division of the General Hospital for 60 days. On December 20, 1961, the hospital reported that 'It is the concensus (sic) of the staff that Morris is emotionally ill and severely so * * * we feel that he is incompetent to stand trial and to participate in a mature way in his own defense. His illness has interfered with his judgment and reasoning ability * * *.' The prosecutor opposed a finding of incompetence to stand trial, and at the prosecutor's request, the District Court referred petitioner to St. Elizabeths Hospital for psychiatric observation. According to a letter from the Superintendent of St. Elizabeths of April 5, 1962, the hospital's staff found that petitioner was 'suffering from mental disease at the presen time, Schizophrenic Reaction, Chronic Undifferentiated Type,' that he had been suffering from this disease at the time of the charged offenses, and that 'if committed by him (those criminal acts) were the product of this disease.' They stated, however, that petitioner was 'mentally competent to understand the nature of the proceedings against him and to consult properly with counsel in his own defense.'
9
D.C.Code § 24—301 (1961).
10
The basis for this distinction—that petitioner was 'sane' for purposes of the housebreaking and robbery but 'insane' for the purposes of the rape—apparently was the hypothesis, for which there is some support in the record, that the jury might find that the robberies had anteceded the rapes, and in that event, it might conclude that the housebreakings and robberies were not the products of his mental disease or defect, while the rapes were produced thereby.
11
Petitioner filed a petition for rehearing en banc, but subsequently moved to withdraw the petition in order to prosecute his petition for certiorari to this Court. The Court of Appeals permitted withdrawal. Chief Judge Bazelon filed a dissenting opinion in which Circuit Judge Wright joined. 119 U.S.App.D.C., at 395, 343 F.2d, at 264 (1964).
12
Cf. Harling v. United States, 111 U.S.App.D.C. 174, 295 F.2d 161 (1961); Bynum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465 (1958). It is not clear from the record whether the fingerprints used were taken during the detention period or were those taken while petitioner was in custody in 1959, nor is it clear that petitioner's counsel objected to the use of the fingerprints.
13
Petitioner also urges that the District Court erred in the following respects:
(1) It gave the jury a version of the 'Allen' charge. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528.
(2) It failed to give an adequate and fair competency hearing.
(3) It denied the motion to constitute itself a juvenile court pursuant to D.C.Code § 11—914 (1961), now § 11—1553. (Supp. IV, 1965.)
(4) It should have granted petitioner's motion for acquittal on all counts, n.o.v., on the grounds of insanity.
We decide none of these claims.
14
The statute is set out at pp. 547-548, supra.
15
'What is required before a waiver is, as we have said, 'full investigation.' * * * It prevents the waiver of jurisdiction as a matter of routine for the purpose of easing the docket. It prevents routine waiver in certain classes of alleged crimes. It requires a judgment in each case based on 'an inquiry not only into the facts of the alleged offense but also into the question whether the parens patriae plan of procedure is desirable and proper in the particular case.' Pee v. United States, 107 U.S.App.D.C. 47, 50, 274 F.2d 556, 559 (1959).' Green v. United States, supra, at 350, 308 F.2d, at 305.
16
See Watkins v. United States, 119 U.S.App.D.C. 409, 413, 343 F.2d 278, 282 (1964); Black v. United States, 122 U.S.App.D.C. 393, 355 F.2d 104 (1965).
17
D.C.Code § 22—2801 (1961) fixes the punishment for rape at 30 years, or death if the jury so provides in its verdict. The maximum punishment for housebreaking is 15 years, D.C.Code § 22 1801 (1961); for robbery it is also 15 years, D.C.Code § 22—2901 (1961).
18
The jurisdiction of the Juvenile Court over a child ceases when he becomes 21. D.C.Code § 11—907 (1961), now § 11—1551 (Supp. IV, 1965).
19
All States have juvenile court systems. A study of the actual operation of these systems is contained in Note, Juvenile Delinquents: The Police, State Courts, and Individualized Justice, 79 Harv.L.Rev. 775 (1966).
20
See Handler, The Juvenile Court and the Adversary System: Problems of Function and Form, 1965 Wis.L.Rev. 7.
21
Pee v. United States, 107 U.S.App.D.C. 47, 274 F.2d 556 (1959).
22
See Pee v. United States, supra, at 54, 274 F.2d, at 563; Paulsen, Fairness to the Juvenile Offender, 41 Minn.L.Rev. 547 (1957).
23
Cf. Harling v. United States, 111 U.S.App.D.C. 174, 177, 295 F.2d 161, 164 (1961).
24
See Handler, op. cit. supra, note 20; Note, supra, note 19; materials cited in note 5, supra.
25
See brief of amicus curiae. 16—2313, 11—1586 (Supp. IV, 1965).
26
These are now, without substantial changes, §§ 11—1551, 16—2307, 16—2308, 16—2313, 11—1586 (Supp. IV, 1965).
27
While we 'will not ordinarily review decisions of the United States Court of Appeals (for the District of Columbia Circuit), which are based upon statutes * * * limited (to the District) * * *,' Del Vecchio v. Bowers, 296 U.S. 280, 285, 56 S.Ct. 190, 192, 80 L.Ed. 229, the position of that court, as we discuss infra, is self-contradictory. Nor have we deferred to decisions on local law where to do so would require adjudication of difficult constitutional questions. See District of Columbia v. Little, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599.
28
The panel was composed of Circuit Judges Miller, Fahy and Burger. Judge Fahy concurred in the result. It appears that the attack on the regularity of the waiver of jurisdiction was made 17 years after the event, and that no objection to waiver had been made in the District Court.
29
Bazelon, C.J., and Fahy and Leventhal, JJ.
30
Under the statute, the Juvenile Court has power by rule or order, to subject the examination of the social records to conditions which will prevent misuse of the information. Violation of any such rule or order, or disclosure of the information 'except for purposes for which * * * released,' is a misdemeanor. D.C.Code § 11—929 (1961), now, without substantial change, § 11 1586 (Supp. IV, 1965).
31
In Watkins, the Court of Appeals seems to have permitted withholding of some portions of the social record from examination by petitioner's counsel. To the extent that Watkins is inconsistent with the standard which we state, it cannot be considered as controlling.
32
It also appears that the District Court requested and obtained the Social Service file and the probation staff's report of September 8, 1961, and that these were made available to petitioner's counsel. This did not cure the error of the Juvenile Court. Perhaps the point of it is that it again illustrates the maxim that while nondisclosure may contribute to the comfort of the staff, disclosure does not cause heaven to fall.
33
Petitioner is in St. Elizabeths Hospital for psychiatric treatment as a result of the jury verdict on the rape charges.
34
We do not deem it appropriate merely to vacate the judgment and remand to the Court of Appeals for reconsideration of its present decision in light of its subsequent decisions in Watkins and Black, supra. Those cases were decided by different panels of the Court of Appeals from that which decided the present case, and in view of our grant of certiorari and of the importance of the issue, we consider it necessary to resolve the question presented instead of leaving it open for further consideration by the
| 12
|
383 U.S. 463
86 S.Ct. 943
16 L.Ed.2d 31
Ralph GINZBURG et al., Petitioners,v.UNITED STATES. Edward MISHKIN, Appellant, v. STATE OF NEW YORK.
Nos. 42 and 49.
Supreme Court of the United States
March 21, 1966
Dissenting Opinion.
Paul Bender, Washington, D.C., for respondent, pro hac vice, by special leave of Court.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
A judge sitting without a jury in the District Court for the Eastern District of Pennsylvania1 convicted petitioner Ginzburg and three corporations controlled by him upon all 28 counts of an indictment charging violation of the federal obscenity statute, 18 U.S.C. § 1461 (1964 ed.).2 224 F.Supp. 129. Each count alleged that a resident of the Eastern District received mailed matter, either one of three publications challenged as obscene, or advertising telling how and where the publications might be obtained. The Court of Appeals for the Third Circuit affirmed, 338 F.2d 12. We granted certiorari, 380 U.S. 961, 85 S.Ct. 1103, 14 L.Ed.2d 152. We affirm. Since petitioners do not argue that the trial judge misconceived or failed to apply the standards we first enunciated in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 14983 the only serious question is whether those standards were correctly applied.4
2
In the cases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination of the question. In the present case, however, the prosecution charged the offense in the context of the circumstances of production, sale, and publicity and assumed that, standing alone, the publications themselves might not be obscene. We agree that the question of obscenity may include consideration of the setting in which the publications were presented as an aid to determining the question of obscenity, and assume without deciding that the prosecution could not have succeeded otherwise. As in Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, and as did the courts below, 224 F.Supp., at 134, 338 F.2d, at 14—15, we view the publications against a background of commercial exploitation of erotica solely for the sake of their prurient appeal.5 The record in that regard amply supports the decision of the trial judge that the mailing of all three publications offended the statute.6
3
The three publications were EROS, a hard-cover magazine of expensive format; Liaison, a bi-weekly newsletter; and The Housewife's Handbook on Selective Promiscuity (hereinafter the Handbook), a short book. The issue of EROS specified in the indictment, Vol. 1, No. 4, contains 15 articles and photo-essays on the subject of love, sex, and sexual relations. The specified issue of Liaison, Vol. 1, No. 1, contains a prefatory 'Letter from the Editors' announcing its dedication to 'keeping sex an art and preventing it from becoming a science.' The remainder of the issue consists of digests of two articles concerning sex and sexual relations which had earlier appeared in professional journals and a report of an interview with a psychotherapist who favors the broadest license in sexual relationships. As the trial judge noted, '(w)hile the treatment is largely superficial, it is presented entirely without restraint of any kind. According to defendants' own expert, it is entirely without literary merit.' 224 F.Supp., at 134. The Handbook purports to be a sexual autobiography detailing with complete candor the author's sexual experiences from age 3 to age 36. The text includes, and prefatory and concluding sections of the book elaborate, her views on such subjects as sex education of children, laws regulating private consensual adult sexual practices, and the equality of women in sexual relationships. It was claimed at trial that women would find the book valuable, for example as a marriage manual or as an aid to the sex education of their children.
4
Besides testimony as to the merit of the material, there was abundant evidence to show that each of the accused publications was originated or sold as stock in trade of the sordid business of pandering—'the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers.'7 EROS early sought mailing privileges from the postmasters of Intercourse and Blue Ball, Pennsylvania. The trial court found the obvious, that these hamlets were chosen only for the value their names would have in furthering petitioners' efforts to sell their publications on the basis of salacious appeal;8 the facilities of the post offices were inadequate to handle the anticipated volume of mail, and the privileges were denied. Mailing privileges were then obtained from the postmaster of Middlesex, New Jersey. EROS and Liaison thereafter mailed several million circulars soliciting subscriptions from that post office; over 5,500 copies of the Handbook were mailed.
5
The 'leer of the sensualist' also permeates the advertising for the three publications. The circulars sent for EROS and Liaison stressed the sexual candor of the respective publications, and openly boasted that the publishers would take full advantage of what they regarded an unrestricted license allowed by law in the expression of sex and sexual matters.9 The advertising for the Handbook, apparently mailed from New York, consisted almost entirely of a reproduction of the introduction of the book, written by one Dr. Albert Ellis. Although he alludes to the book's informational value and its putative therapeutic usefulness, his remarks are preoccupied with the book's sexual imagery. The solicitation was indiscriminate, not limited to those, such as physicians or phychiatrists, who might independently discern the book's therapeutic worth.10 Inserted in each advertisement was a slip labeled 'GUARANTEE' and reading, 'Documentary Books, Inc. unconditionally guarantees full refund on the price of THE HOUSEWIFE'S HANDBOOK ON SELECTIVE PROMISCUITY if the book fails to reach you because of U.S. Post Office censorship interference.' Similar slips appeared in the advertising for EROS and Liaison; they highlighted the gloss petitioners put on the publications, eliminating any doubt what the purchaser was being asked to buy.11
6
This evidence, in our view, was relevant in determining the ultimate question of obscenity and, in the context of this record, serves to resolve all ambiguity and doubt. The deliberate representation of petitioners' publications as erotically arousing, for example, stimulated the reader to accept them as prurient; he looks for titillation, not for saving intellectual content. Similarly, such representation would tend to force public confrontation with the potentially offensive aspects of the work; the brazenness of such an appeal heightens the offensiveness of the publications to those who are offended by such material. And the circumstances of presentation and dissemination of material are equally relevant to determining whether social importance claimed for material in the courtroom was, in the circumstances, pretense or reality—whether it was the basis upon which it was traded in the market-place or a spurious claim for litigation purposes. Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity. Certainly in a prosecution which, as here, does not necessarily imply suppression of the materials involved, the fact that they originate or are used as a subject of pandering is relevant to the application of the Roth test.
7
A proposition argued as to EROS, for example, is that the trial judge improperly found the magazine to be obscene as a whole, since he concluded that only four of the 15 articles predominantly appealed to prurient interest and substantially exceeded community standards of candor, while the other articles were admittedly non-offensive. But the trial judge found that '(t)he deliberate and studied arrangement of EROS is editorialized for the purpose of appealing predominantly to prurient interest and to insulate through the inclusion of non-offensive material.' 224 F.Supp., at 131. However erroneous such a conclusion might be if unsupported by the evidence of pandering, the record here supports it. EROS was created, represented and sold solely as a claimed instrument of the sexual stimulation it would bring. Like the other publications, its pervasive treatment of sex and sexual matters rendered it available to exploitation by those who would make a business of pandering to 'the widespread weakness for titillation by pornography.'12 Petitioners' own expert agreed, correctly we think, that '(i)f the object (of a work) is material gain for the creator through an appeal to the sexual curiosity and appetite,' the work is pornographic. In other words, by animating sensual detail to give the publication a salacious cast, petitioners reinforced what is conceded by the Government to be an otherwise debatable conclusion.
8
A similar analysis applies to the judgment regarding the Handbook. The bulk of the proofs directed to social importance concerned this publication. Before selling publication rights to petitioners, its author had printed it privately; she sent circulars to persons whose names appeared on membership lists of medical and psychiatric associations, asserting its value as an adjunct to therapy. Over 12,000 sales resulted from this solicitation, and a number of witnesses testified that they found the work useful in their professional practice. The Government does not seriously contest the claim that the book has worth in such a controlled, or even neutral, environment. Petitioners, however, did not sell the book to such a limited audience, or focus their claims for it on its supposed therapeutic or educational value; rather, they deliberately emphasized the sexually provocative aspects of the work, in order to catch the salaciously disposed. They proclaimed its obscenity; and we cannot conclude that the court below erred in taking their own evaluation at its face value and declaring the book as a whole obscene despite the other evidence.13
9
The decision in United States v. Rebhuhn, 109 F.2d 512, is persuasive authority for our conclusion.14 That was a prosecution under the predecessor to § 1461, brought in the context of pandering of publications assumed useful to scholars and members of learned professions. The books involved were written by authors proved in many instances to have been men of scientific standing, as anthropologists or psychiatrists. The Court of Appeals for the Second Circuit therefore assumed that many of the books were entitled to the protection of the First Amendment, and 'could lawfully have passed through the mails, if directed to those who would be likely to use them for the purposes for which they were written * * *.' 109 F.2d, at 514. But the evidence, as here, was that the defendants had not disseminated them for their 'proper use, but * * * woefully misused them, and it was that misuse which constituted the gravamen of the crime.' Id., at 515. Speaking for the Court in affirming the conviction, Judge Learned Hand said:
10
'* * * (T)he works themselves had a place, though a limited one, in anthropology and in psychotherapy. They might also have been lawfully sold to laymen who wished seriously to study the sexual practices of savage or barbarous peoples, or sexual aberrations; in other words, most of them were not obscene per se. In several decisions we have held that the statute does not in all circumstances forbid the dissemination of such publications. * * * However, in the case at bar, the prosecution succeeded * * * when it showed that the defendants had indiscriminately flooded the mails with advertisements, plainly designed merely to catch the prurient, though under the guise of distributing works of scientific or literary merit. We do not mean that the distributor of such works is charged with a duty to insure that they shall reach only proper hands, nor need we say what care he must use, for these defendants exceeded any possible limit; the circulars were no more than appeals to the salaciously disposed, and no (fact finder) could have failed to pierce the fragile screen, set up to cover that purpose.' 109 F.2d, at 514—515.
11
We perceive no threat to First Amendment guarantees in thus holding that in close cases evidence of pandering may be probative with respect to the nature of the material in question and thus satisfy the Roth test.15 No weight is ascribed to the fact that petitioners have profited from the sale of publications which we have assumed but do not hold cannot themselves be adjudged obscene in the abstract; to sanction consideration of this fact might indeed induce self-censorship, and offend the frequently stated principle that commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment.16 Rather, the fact that each of these publications was created or exploited entirely on the basis of its appeal to prurient interests17 strengthens the conclusion that the transactions here were sales of illicit merchandise, not sales of constitutionally protected matter.18 A conviction for mailing obscene publications, but explained in part by the presence of this element, does not necessarily suppress the materials in question, nor chill their proper distribution for a proper use. Nor should it inhibit the enterprise of others seeking through serious endeavor to advance human knowledge or understanding in science, literature, or art. All that will have been determined is that questionable publications are obscene in a context which brands them as obscene as that term is defined in Roth—a use inconsistent with any claim to the shelter of the First Amendment.19 'The nature of the materials is, of course, relevant as an attribute of the defendant's conduct, but the materials are thus placed in context from which they draw color and character. A wholly different result might be reached in a different setting.' Roth v. United States, 354 U.S., at 495, 77 S.Ct., at 1315 (Warren, C.J., concurring).
12
It is important to stress that this analysis simply elaborates the test by which the obscenity vel non of the material must be judged. Where an exploitation of interests in titillation by pornography is shown with respect to material lending itself to such exploitation through pervasive treatment or description of sexual matters, such evidence may support the determination that the material is obscene even though in other contexts the material would escape such condemnation.
13
Petitioners raise several procedural objections, principally directed to the findings which accompanied the trial court's memorandum opinion, Fed.Rules Crim.Proc. 23. Even on the assumption that petitioners' objections are well taken, we perceive no error affecting their substantial rights.
14
Affirmed.
15
Mr. Justice BLACK, dissenting.
16
Only one stark fact emerges with clarity out of the confusing welter of opinions and thousands of words written in this and two other cases today.1 That fact is that Ginzburg, petitioner here, is now finally and authoritatively condemned to serve five years in prison for distributing printed matter about sex which neither Ginzburg nor anyone else could possibly have known to be criminal. Since, as I have said many times, I believe the Federal Government is without any power whatever under the Constitution to put any type of burden on speech and expression of ideas of any kind (as distinguished from conduct), I agree with Part II of the dissent of my Brother DOUGLAS in this case, and I would reverse Ginzburg's conviction on this ground alone. Even assuming, however, that the Court is correct in holding today that Congress does have power to clamp official censorship on some subjects selected by the Court, in some ways approved by it, I believe that the federal obscenity statute as enacted by Congress and as enforced by the Court against Ginzburg in this case should be held invalid on two other grounds.
I.
17
Criminal punishment by government, although universally recognized as a necessity in limited areas of conduct, is an exercise of one of government's most awesome and dangerous powers. Consequently, wise and good governments make all possible efforts to hedge this dangerous power by restricting it within easily identifiable boundaries. Experience, and wisdom flowing out of that experience, long ago led to the belief that agents of government should not be vested with power and discretion to define and punish as criminal past conduct which had not been clearly defined as a crime in advance. To this end, at least in part, written laws came into being, marking the boundaries of conduct for which public agents could thereafter impose punishment upon people. In contrast, bad governments either wrote no general rules of conduct at all, leaving that highly important task to the unbridled discretion of government agents at the moment of trial, or sometimes, history tells us, wrote their laws in an unknown tongue so that people could not understand them or else placed their written laws at such inaccessible spots that people could not read them. It seems to me that these harsh expedients used by bad governments to punish people for conduct not previously clearly marked as criminal are being used here to put Mr. Ginzburg in prison for five years.
18
I agree with my Brother HARLAN that the Court has in effect rewritten the federal obscenity statute and thereby imposed on Ginzburg standards and criteria that Congress never thought about; or if it did think about them, certainly it did not adopt them. Consequently, Ginzburg is, as I see it, having his conviction and sentence affirmed upon the basis of a statute amended by this Court for violation of which amended statute he was not charged in the courts below. Such an affirmance we have said violates due process. Cole v. State of Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644. Compare Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176. Quite apart from this vice in the affirmance, however, I think that the criteria declared by a majority of the Court today as guidelines for a court or jury to determine whether Ginzburg or anyone else can be punished as a common criminal for publishing or circulating obscene material are so vague and meaningless that they practically leave the fate of a person charged with violating censorship statutes to the unbridled discretion, whim and caprice of the judge or jury which tries him. I shall separately discuss the three elements which a majority of the Court seems to consider material in proving obscenity.2
19
(a) The first element considered necessary for determining obscenity is that the dominant theme of the material taken as a whole must appeal to the prurient interest in sex. It seems quite apparent to me that human beings, serving either as judges or jurors, could not be expected to give any sort of decision on this element which would even remotely promise any kind of uniformity in the enforcement of this law. What conclusion an individual, be he judge or juror, would reach about whether the material appeals to 'prurient interest in sex' would depend largely in the long run not upon testimony of witnesses such as can be given in ordinary criminal cases where conduct is under scrutiny, but would depend to a large extent upon the judge's or juror's personality, habits, inclinations, attitudes and other individual characteristics. In one community or in one courthouse a matter would be condemned as obscene under this so-called criterion but in another community, maybe only a few miles away, or in another courthouse in the same community, the material could be given a clean bill of health. In the final analysis the submission of such an issue as this to a judge or jury amounts to practically nothing more than a request for the judge or juror to assert his own personal beliefs about whether the matter should be allowed to be legally distributed. Upon this subjective determination the law becomes certain for the first and last time.
20
(b) The second element for determining obscenity as it is described by my Brother BRENNAN is that the material must be 'patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters. * * *' Nothing that I see in any position adopted by a majority of the Court today and nothing that has been said in previous opinions for the Court leaves me with any kind of certainty as to whether the 'community standards'3 referred to are world-wide, nation-wide, section-wide, state-wide, country-wide, precinct-wide or township-wide. But even if some definite areas were mentioned, who is capable of assessing 'community standards' on such a subject? Could one expect the same application of standards by jurors in Mississippi as in New York City, in Vermont as in California? So here again the guilt or innocence of a defendant charged with obscenity must depend in the final analysis upon the personal judgment and attitudes of particular individuals and the place where the trial is held. And one must remember that the Federal Government has the power to try a man for mailing obscene matter in a court 3,000 miles from his home.
21
(c) A third element which three of my Brethren think is required to establish obscenity is that the material must be 'utterly without redeeming social value.' This element seems to me to be as uncertain, if not even more uncertain, than is the unknown substance of the Milky Way. If we are to have a free society as contemplated by the Bill of Rights, then I can find little defense for leaving the liberty of American individuals subject to the judgment of a judge or jury as to whether material that provokes thought or stimulates desire is 'utterly without redeeming social value. * * *' Whether a particular treatment of a particular subject is with or without social value in this evolving, dynamic society of ours is a question upon which no uniform agreement could possibly be reached among politicians, statesmen, professors, philosophers, scientists, religious groups or any other type of group. A case-by-case assessment of social values by individual judges and jurors is, I think, a dangerous technique for government to utilize in determining whether a man stays in or out of the penitentiary.
22
My conclusion is that certainly after the fourteen separate opinions handed down in these three cases today no person, not even the most learned judge much less a layman, is capable of knowing in advance of an ultimate decision in his particular case by this Court whether certain material comes within the area of 'obscenity' as that term is confused by the Court today. For this reason even if, as appears from the result of the three cases today, this country is far along the way to a censorship of the subjects about which the people can talk or write, we need not commit further constitutional transgressions by leaving people in the dark as to what literature or what words or what symbols if distributed through the mails make a man a criminal. As bad and obnoxious as I believe governmental censorship is in a Nation that has accepted the First Amendment as its basic ideal for freedom, I am compelled to say that censorship that would stamp certain books and literature as illegal in advance of publication or conviction would in some ways be preferable to the unpredictable book-by-book censorship into which we have now drifted.
23
I close this part of my dissent by saying once again that I think the First Amendment forbids any kind or type or nature of governmental censorship over views as distinguished from conduct.
II.
24
It is obvious that the effect of the Court's decisions in the three obscenity cases handed down today is to make it exceedingly dangerous for people to discuss either orally or in writing anything about sex. Sex is a fact of life. Its pervasive influence is felt throughout the world and it cannot be ignored. Like all other facts of life it can lead to difficulty and trouble and sorrow and pain. But while it may lead to abuses, and has in many instances, no words need be spoken in order for people to know that the subject is one pleasantly interwoven in all human activities and involves the very substance of the creation of life itself. It is a subject which people are bound to consider and discuss whatever laws are passed by any government to try to suppress it. Though I do not suggest any way to solve the problems that may arise from sex or discussions about sex, of one thing I am confident, and that is that federal censorship is not the answer to these problems. I find it difficult to see how talk about sex can be placed under the kind of censorship the Court here approves without subjecting our society to more dangers than we can anticipate at the moment. It was to avoid exactly such dangers that the First Amendment was written and adopted. For myself I would follow the course which I believe is required by the First Amendment, that is, recognize that sex at least as much as any other aspect of life is so much a part of our society that its discussion should not be made a crime.
25
I would reverse this case.
26
Mr. Justice DOUGLAS, dissenting in Nos. 42 and 49.
27
Today's condemnation of the use of sex symbols to sell literature, engrafts another exception on First Amendment rights that is as unwarranted as the judge-made exception concerning obscenity. This new exception condemns an advertising technique as old as history. The advertisements of our best magazines are chock-full of thighs, ankles, calves, bosoms, eyes, and hair, to draw the potential buyer's attention to lotions, tires, food, liquor, clothing, autos, and even insurance policies. The sexy advertisement neither adds to nor detracts from the quality of the merchandise being offered for sale. And I do not see how it adds to or detracts one whit from the legality of the book being distributed. A book should stand on its own, irrespective of the reasons why it was written or the wiles used in selling it. I cannot imagine any promotional effort that would make chapters 7 and 8 of the Song of Solomon any the less or any more worthy of First Amendment protection than does their unostentatious inclusion in the average edition of the Bible.
I.
28
The Court has, in a veriety of contexts, insisted that preservation of rights safeguarded by the First Amendment requires virgilance. We have recognized that a 'criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms.' Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22. Where uncertainty is the distinguishing characteristic of a legal principle—in this case the Court's 'pandering' theory—'the free dissemination of ideas may be the loser.' Smith v. People of State of California, 361 U.S. 147, 151, 80 S.Ct. 215, 218, 4 L.Ed.2d 205. The Court today, however, takes the other course, despite the admonition in Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460, that '(t)he separation of legitimate from illegitimate speech calls for * * * sensitive tools.' Before today, due regard for the frailties of free expression led us to reject insensitive procedures1 and clumsy, vague, or overbroad substantive rules even in the realm of obscenity.2 For as the Court emphasized in Roth v. United States, 354 U.S. 476, 488, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498, '(t)he door barring federal and state intrusion into this area cannot be left adjar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.'
29
Certainly without the aura of sex in the promotion of these publications their contents cannot be said to be 'utterly without redeeming social importance.' Roth v. United States, supra, 354 U.S. at 484, 77 S.Ct. at 1309.3 One of the publications condemned today is the Housewife's Handbook on Selective Promiscuity, which a number of doctors and psychiatrists thought had clinical value. One clinical psychologist said: 'I should like to recommend it, for example, to the people in my church to read, especially those who are having marital difficulties, in order to increase their tolerance and understanding for one another. Much of the book, I should think, would be very suitable reading for teen age people, especially teen age young women who could empathize strongly with the growing up period that Mrs. Rey (Anthony) relates, and could read on and be disabused of some of the unrealistic notions about marriage and sexual experiences. I should think this would make very good reading for the average man to help him gain a better appreciation of female sexuality.'
30
The Rev. George Von Hilsheimer III, a Baptist minister,4 testified that he has used the book 'insistently in my pastoral counseling and in my formal psychological counseling':
31
'The book is a history, a very unhappy history, of a series of sexual and psychological misadvantures and the encounter of a quite typical and average American woman with quite typical and average American men. The fact that the book itself is the history of a woman who has had sexual adventures outside the normally accepted bounds of marriage which, of course for most Americans today, is a sort of serial polygamy, it does not teach or advocate this, but gives the women to whom I give the book at least a sense that their own experiences are not unusual, that their sexual failures are not unusual, and that they themselves should not be guilty because they are, what they say, sexual failures.'
32
I would think the Baptist minister's evaluation would be enough to satisfy the Court's test, unless the censor's word is to be final or unless the experts are to be weighed in the censor's scales, in which event one Anthony Comstock would too often prove more weighty than a dozen more detached scholars, or unless we, the ultimate Board of Censors, are to lay down standards for review that give the censor the benefit of the 'any evidence' rule or the 'substantial evidence' rule as in the administrative law field. Cf. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. Or perhaps we mean to let the courts sift and choose among conflicting versions of the 'redeeming social importance' of a particular book, making sure that they keep their findings clear of doubt lest we reverse, as we do today in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, because the lower court in an effort to be fair showed how two-sided the argument was. Since the test is whether the publication is 'utterly without redeeming social importance,' then I think we should honor the opinion of the Baptist minister who testified as an expert in the field of counseling.
33
Then there is the newsletter Liaison. One of the defendants' own witnesses, critic Dwight Macdonald, testified that while, in his opinion, it did not go beyond the customary limits of candor tolerated by the community, it was 'an extremely testeless, vulgar and repulsive issue.' This may, perhaps, overstate the case, but Liaison is admittedly little more than a collection of 'dirty' jokes and poems, with the possible exception of an interview with Dr. Albert Ellis. As to this material, I find wisdom in the words of the late Judge Jerome Frank:
34
'Those whose views most judges know best are other lawyers. Judges can and should take judicial notice that, at many gatherings of lawyers at Bar Association or of alumni of our leading law schools, tales are told fully as 'obscene' as many of those distributed by men * * * convicted for violation of the obscenity statute. * * * 'One thinks of the lyrics sung * * * by a certain respected and conservative member of the faculty of a great law-school which considers itself the most distinguished and which is the Alma Mater of Many judges sitting on upper courts."5
35
Liaison's appeal is neither literary nor spiritual. But neither is its appeal to a 'shameful or morbid interest in nudity, sex, or excretion.' The appeal is to the ribald sense of humor which is—for better or worse—a part of our culture. A mature society would not suppress this newsletter as obscene but would simply ignore it.
36
Then there is EROS. The Court affirms the judgment of the lower court, which found only four of the many articles and essays to be obscene. One of the four articles consisted of numerous ribald limericks, to which the views expressed as to Liaison would apply with equal force. Another was a photo essay entitled 'Black and White in Color' which dealt with interracial love: a subject undoubtedly offensive to some members of our society. Critic Dwight Macdonald testified:
37
'I suppose if you object to the idea of a Negro and a white person having sex together, then, of course, you would be horrified by it. I don't. From the artistic point of view I thought it was very good. In fact, I thought it was done with great taste, and I don't know how to say it—I never heard of him before, but he is obviously an extremely competent and accomplished photographer.'
38
Another defense witness, Professor Horst W. Janson, presently the Chairman of the Fine Arts Department at New York University, testified:
39
'I think they are outstandingly beautiful and artistic photographs. I can not imagine the theme being treated in a more lyrical and delicate manner than it has been done here.
40
'I might add here that of course photography in appropriate hands is an artistic instrument and this particular photographer has shown a very great awareness of compositional devices and patterns that have a long and well-established history in western art.
41
'The very contrast in the color of the two bodies of course has presented him with certain opportunities that he would not have had with two models of the same color, and he has taken rather extraordinary and very delicate advantage of these contrasts.'
42
The third article found specifically by the trial judge to be obscene was a discussion by Drs. Eberhard W. and Phyllis C. Kronhausen of erotic writing by women, with illustrative quotations.6 The worth of the article was discussed by Dwight Macdonald, who stated:
43
'I thought (this was) an extremely interesting and important study with some remarkable quotations from the woman who had put down her sense of love-making, of sexual intercourse * * * in an extremely eloquent way. I have never seen this from the woman's point of view. I thought the point they made, the difference between the man's and the woman's approach to sexual intercourse was very well made and very important.'
44
Still another article found obscene was a short introduction to and a lengthy excerpt from My Life and Loves by Frank Harris, about which there is little in the record. Suffice it to say that this seems to be a book of some literary stature. At least I find it difficult on this record to say that it is 'utterly without redeeming social importance.'7
45
Some of the tracts for which these publishers go to prison concern normal sex, some homosexuality, some the masochistic yearning that is probably present in everyone and dominant in some. Masochism is a desire to be punished or subdued. In the broad frame of reference the desire may be expressed in the longing to be whipped and lashed, bound and gagged, and cruelly treated.8 Why is it unlawful to cater to the needs of this group? They are, to be sure, somewhat offbeat, nonconformist, and odd. But we are not in the realm of criminal conduct, only ideas and tastes. Some like Chopin, others like 'rock and roll.' Some are 'normal,' some are masochistic, some deviant in other respects, such as the homosexual. Another group also represented here translates mundane articles into sexual symbols. This group, like those embracing masochism, are anathema to the so-called stable majority. But why is freedom of the press and expression denied them? Are they to be barred from communicating in symbolisms important to them? When the Court today speaks of 'social value,' does it mean a 'value' to the majority? Why is not a minority 'value' cognizable? The masochistic group is one; the deviant group is another. Is it not important that members of those groups communicate with each other? Why is communication by the 'written word' forbidden? If we were wise enough, we might know that communication may have greater thereapeutical value than any sermon that those of the 'normal' community can ever offer. But if the communication is of value to the masochistic community or to others of the deviant community, how can it be said to be 'utterly without redeeming social importance'? 'Redeeming' to whom? 'Importance' to whom?
46
We took quite a different stance in One, Inc. v. Olesen, 355 U.S. 371, 78 S.Ct. 364, 2 L.Ed.2d 352, where we unanimously reversed the decision of the Court of Appeals in 9 Cir., 241 F.2d 772 without opinion. Our holding was accurately described by Lockhart and McClure, Obscenity Censorship: The Core Constitutional Issue—What is Obscene? 7 Utah L.Rev. 289, 293 (1961):
47
'(This) was a magazine for homosexuals entitled One—The Homosexual Magazine, which was definitely not a scientific or critical magazine, but appears to have been written to appeal to the tastes and interests of homosexuals.'9
48
Man was not made in a fixed mould. If a publication caters to the idiosyncrasies of a minority, why does it not ahve some 'social importance'? Each of us is a very temporary transient with likes and dislikes that cover the spectrum. However plebian my testes may be, who am I to say that others' tastes must be so limited and that other tastes have no 'social importance'? How can we know enough to probe the mysteries of the subconscious of our people and say that this is good for them and that is not? Catering to the most eccentric taste may have 'social importance' in giving that minority an opportunity to express itself rather than to repress its inner desires, as I suggest in my separate opinion in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Com. of Massachusetts, chusetts, 383 U.S., at 431—432, 86 S.Ct., at 984. How can we know that this expression may not prevent antisocial conduct?
49
I find it difficult to say that a publication has no 'social importance' because it caters to the taste of the most unorthodox amongst us. We members of this Court should be among the last to say what should be orthodox in literature. An omniscience would be required which few in our whole society possess.
II.
50
This leads me to the conclusion, previously noted, that the First Amendment allows all ideas to be expressed—whether orthodox, popular, offbeat, or repulsive. I do not think it permissible to draw lines between the 'good' and the 'bad' and be true to the constitutional mandate to let all ideas alone. If our Constitution permitted 'reasonable' regulation of freedom of expression, as do the constitutions of some nations,10 we would be in a field where the legislative and the judiciary would have much leeway. But under our charter all regulation or control of expression is barred. Government does not sit to reveal where the 'truth' is. People are left to pick and choose between competing offerings. There is no compulsion to take and read what is repulsive any more than there is to spend one's time poring over government bulletins, political tracts, or theological treatises. The theory is that people are mature enough to pick and choose, to recognize trash when they see it, to be attracted to the literature that satisfies their deepest need, and, hopefully, to move from plateau to plateau and finally reach the world of enduring ideas.
51
I think this is the ideal of the Free Society written into our Constitution. We have no business acting as censors or endowing any group with censorship powers. It is shocking to me for us to send to prison anyone for publishing anything, especially tracts so distant from any incitement to action as the ones before us.
52
Mr. Justice HARLAN, dissenting.
53
I would reverse the convictions of Ginzburg and his three corporate codefendants. The federal obscenity statute under which they were convicted, 18 U.S.C. § 1461 (1964 ed.), is concerned with unlawful shipment of 'nonmailable' matter. In my opinion announcing the judgment of the Court in Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639, the background of the statute was assessed, and its focus was seen to be solely on the character of the material in question. That too has been the premise on which past cases in this Court arising under this statute, or its predecessors, have been decided. See, e.g., Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. I believe that under this statute the Federal Government is constitutionally restricted to banning from the mails only 'hardcore pornography,' see my separate opinion in Roth, supra, at 507, 77 S.Ct., at 1320, and my dissenting opinion in A Book Named 'John Cleland's Memoirs' v. Attorney General, 383 U.S. 455, 86 S.Ct. 996. Because I do not think it can be maintained that the material in question here falls within that narrow class, I do not believe it can be excluded from the mails.
54
The Court recognizes the difficulty of justifying these convictions; the majority refuses to approve the trial judge's 'exegesis of Roth' (note 3, 383 U.S. 465, 86 S.Ct. 944); it declines to approve the trial court's 'characterizations' of the Handbook 'outside' the 'setting' which the majority for the first time announces to be crucial to this conviction (note 5, 383 U.S. 466, 86 S.Ct. 945). Moreover, the Court accepts the Government's concession that the Handbook has a certain 'worth' when seen in something labeled a 'controlled, or even neutral, environment' (383 U.S. 472, 86 S.Ct. 948); the majority notes that these are 'publications which we have assumed * * * cannot themselves be adjudged obscene in the abstract' (383 U.S. 474, 86 S.Ct. 949). In fact, the Court in the last analysis sustains the convictions on the express assumption that the items held to be obscene are not, viewing them strictly, obscene at all (383 U.S. 466, 86 S.Ct. 945).
55
This curious result is reached through the elaboration of a theory of obscenity entirely unrelated to the language, purposes, or history of the federal statute now being applied, and certainly different from the test used by the trial court to convict the defendants. While the precise holding of the Court is obscure, I take it that the objective test of Roth, which ultimately focuses on the material in question, is to be supplemented by another test that goes to the question whether the mailer's aim is to 'pander' to or 'titillate' those to whom he mails questionable matter.
56
Although it is not clear whether the majority views the panderer test as a statutory gloss or as constitutional doctrine, I read the opinion to be in the latter category.1 The First Amendment, in the obscenity area, no longer fully protects material on its face nonobscene, for such material must now also be examined in the light of the defendant's conduct, attitude, motives. This seems to me a mere euphemism for allowing punishment of a person who mails otherwise constitutionally protected material just because a jury or a judge may not find him or his business agreeable. Were a State to enact a 'panderer' statute under its police power, I have little doubt that—subject to clear drafting to avoid attacks on vagueness and equal protection grounds—such a statute would be constitutional. Possibly the same might be true of the Federal Government acting under its postal or commerce powers. What I fear the Court has done today is in effect to write a new statute, but without the sharply focused definitions and standards necessary in such a sensitive area. Casting such a dubious gloss over a straightforward 101-year-old statute (see 13 Stat. 507) is for me an astonishing piece of judicial improvisation.
57
It seems perfectly clear that the theory on which these convictions are now sustained is quite different from the basis on which the case was tried and decided by the District Court and affirmed by the Court of Appeals.2 The District Court found the Handbook 'patently offensive on its face' and without 'the slightest redeeming social, artistic or literary importance or value'; it held that there was 'no credible evidence that The Handbook has the slightest valid scientific importance for treatment of individuals in clinical psychiatry, psychology, or any field of medicine.' 224 F.Supp. 129, 131. The trial court made similar findings as to Eros and Liaison. The majority's opinion, as I read it, casts doubts upon these explicit findings. As to the Handbook, the Court interprets an offhand remark by the government prosecutor at the sentencing hearing as a 'concession,' which the majority accepts, that the prosecution rested upon the conduct of the petitioner, and the Court explicitly refuses to accept the trial judge's 'characterizations' of the book, which I take to be an implied rejection of the findings of fact upon which the conviction was in fact based (note 5, 383 U.S. 466, 86 S.Ct. 945). Similarly as to Eros, the Court implies that the finding of obscenity might be 'erroneous' were it not supported 'by the evidence of pandering' (383 U.S. 471, 86 S.Ct. 947). The Court further characterizes the Eros decision, aside from pandering, as 'an otherwise debatable conclusion' (383 U.S. 471, 86 S.Ct. 948).
58
If there is anything to this new pandering dimension to the mailing statute, the Court should return the case for a new trial, for petitioners are at least entitled to a day in court on the question on which their guilt has ultimately come to depend. Compare the action of the Court in A Book Named 'John Cleland's Memoirs' v. Attorney General, 383 U.S. 413, 86 S.Ct. 975, also decided today, where the Court affords the State an opportunity to prove in a subsequent prosecution that an accused purveyor of Fanny Hill in fact used pandering methods to secure distribution of the book.
59
If a new trial were given in the present case, as I read the Court's opinion, the burden would be on the Government to show that the motives of the defendants were to pander to 'the widespread weakness for titillation by pornography' (383 U.S. 471, 86 S.Ct. 947). I suppose that an analysis of the type of individuals receiving Eros and the Handbook would be relevant. If they were ordinary people, interested in purchasing Eros or the Handbook for one of a dozen personal reasons, this might be some evidence of pandering to the general public. On the other hand, as the Court suggests, the defendants could exonerate themselves by showing that they sent these works only or perhaps primarily (no standards are set) to psychiatrists and other serious—minded professional people. Also relevant would apparently be the nature of the mailer's advertisements or representations. Conceivably someone mailing to the public selective portions of a recognized classic with the avowed purpose of titillation would run the risk of conviction for mailing nonmailable matter. Presumably the Post Office under this theory might once again attempt to ban Lady Chatterley's Lover, which a lower court found not bannable in 1960 by an abstract application of Roth. Grove Press, Inc. v. Christenberry, 276 F.2d 433. I would suppose that if the Government could show that Grove Press is pandering to people who are interested in the book's sexual passages and not in D. H. Lawrence's social theories or literary technique § 1461 could properly be invoked. Even the well-known opinions of Judge A. N. Hand in United States v. One Book Entitled Ulysses, 72 F.2d 705, and of Judge Woolsey in the District Court, 5 F.Supp. 182, might be rendered nugatory if a mailer of Ulysses is found to be titillating readers with its 'coarse, blasphemous, and obscene' portions, 72 F.2d, at 707, rather than piloting them through the intricacies of Joyce's stream of consciousness.
60
In the past, as in the trial of these petitioners, evidence as to a defendant's conduct was admissible only to show relevant intent.3 Now evidence not only as to conduct, but also as to attitude and motive, is admissible on the primary question of whether the material mailed is obscene. I have difficulty seeing how these inquiries are logically related to the question whether a particular work is obscene. In addition, I think such a test for obscenity is impermissibly vague, and unwarranted by anything in the First Amendment or in 18 U.S.C. § 1461.
61
I would reverse the judgment below.
62
Mr. Justice STEWART, dissenting.
63
Ralph Ginzburg has been sentenced to five years in prison for sending through the mail copies of a magazine, a pamphlet, and a book. There was testimony at his trial that these publications possess artistic and social merit. Personally, I have a hard time discerning any. Most of the material strikes me as both vulgar and unedifying. But if the First Amendment means anything, it means that a man cannot be sent to prison merely for distributing publications which offend a judge's esthetic sensibilities, mine or any other's.
64
Censorship reflects a society's lack of confidence in itself. It is a hallmark of an authoritarian regime. Long ago those who wrote our First Amendment charted a different course. They believed a society can be truly strong only when it is truly free. In the realm of expression they put their faith, for better or for worse, in the enlightened choice of the people, free from the interference of a policeman's intrusive thumb or a judge's heavy hand. So it is that the Constitution protects coarse expression as well as refined, and vulgarity no less than elegance. A book worthless to me may convey something of value to my neighbor. In the free society to which our Constitution has committed us, it is for each to choose for himself.1
65
Because such is the mandate of our Constitution, there is room for only the most restricted view of this Court's decision in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. In that case the Court held that 'obscenity is not within the area of constitutionally protected speech or press.' Id., at 485, 77 S.Ct., at 1309. The Court there characterized obscenity as that which is 'utterly without redeeming social importance,' id., at 484, 77 S.Ct., at 1309, 'deals with sex in a manner appealing to prurient interest,' id., at 487, 77 S.Ct., at 1310, and 'goes substantially beyond customary limits of candor in description or representation of such matters.' Id., at 487, n. 20, 77 S.Ct., at 1310.2 In Manual Enterprises v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639, I joined Mr. Justice Harlan's opinion adding 'patent indecency' as a further essential element of that which is not constitutionally protected.
66
There does exist a distinct and easily identifiable class of material in which all of these elements coalesce. It is that, and that alone, which I think government may constitutionally suppress, whether by criminal or civil sanctions. I have referred to such material before as hardcore pornography, without trying further to define it. Jacobellis v. State of Ohio, 378 U.S. 184, at 197, 84 S.Ct. 1676, at 1683 (concurring opinion). In order to prevent any possible misunderstanding, I have set out in the margin a description, borrowed from the Solicitor General's brief, of the kind of thing to which I have reference.3 See also Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5, 63—64.
67
Although arguments can be made to the contrary, I accept the proposition that the general dissemination of matter of this description may be suppressed under valid laws.4 That has long been the almost universal judgment of our society. See Roth v. United States, 354 U.S., at 485, 77 S.Ct., at 1309. But material of this sort is wholly different from the publications mailed by Ginzburg in the present case, and different not in degree but in kind.
68
The Court today appears to concede that the materials Ginzburg mailed were themselves protected by the First Amendment. But, the Court says, Ginzburg can still be sentenced to five years in prison for mailing them. Why? Because, says the Court, he was guilty of 'commercial exploitation,' of 'pandering,' and of 'titillation.' But Ginzburg was not charged with 'commercial exploitation'; he was not charged with 'pandering'; he was not charged with 'titillation.' Therefore, to affirm his conviction now on any of those grounds, even if otherwise valid, is to deny him due process of law. Cole v. State of Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644. But those grounds are not, of course, otherwise valid. Neither the statute under which Ginzburg was convicted nor any other federal statute I know of makes 'commercial exploitation' or 'pandering' or 'titillation' a criminal offense. And any criminal law that sought to do so in the terms so elusively defined by the Court would, of course, be unconstitutionally vague and therefore void. All of these matters are developed in the dissenting opinions of my Brethren, and I simply note here that I fully agree with them.
69
For me, however, there is another aspect of the Court's opinion in this case that is even more regrettable. Today the Court assumes the power to deny Ralph Ginzburg the protection of the First Amendment because it disapproves of his 'sordid business.' That is a power the Court does not possess. For the First Amendment protects us all with an even hand. It applies to Ralph Ginzburg with no less completeness and force than to G. P. Putnam's Sons.5 In upholding and enforcing the Bill of Rights, this Court has no power to pick or to choose. When we lose sight of that fixed star of constitutional adjudication, we lose our way. For then we forsake a government of law and are left with government by Big Brother.
70
I dissent.
1
No challenge was or is made to venue under 18 U.S.C. § 3237 (1964 ed.).
2
The federal obscenity statute, 18 U.S.C. § 1461, provides in pertinent part:
'Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing device, or substance; and—
'Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters * * * may be obtained * * *.
'Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.
'Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section to be nonmailable * * * shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense * * *.'
3
We are not, however, to be understood as approving all aspects of the trial judge's exegesis of Roth, for example his remarks that 'the community as a whole is the proper consideration. In this community, our society, we have children of all ages, psychotics, feeble-minded and other susceptible elements. Just as they cannot set the pace for the average adult reader's taste, they cannot be overlooked as part of the community.' 224 F.Supp., at 137. Compare Butler v. State of Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412.
4
The Government stipulated at trial that the circulars advertising the publications were not themselves obscene; therefore the convictions on the counts for mailing the advertising stand only if the mailing of the publications offended the statute.
5
Our affirmance of the convictions for mailing EROS and Liaison is based upon their characteristics as a whole, including their editorial formats, and not upon particular articles contained, digested, or excerpted in them. Thus we do not decide whether particular articles, for example, in EROS, although identified by the trial judge as offensive, should be condemned as obscene whatever their setting. Similarly, we accept the Government's concession, note 13, infra, that the prosecution rested upon the manner in which the petitioners sold the Handbook; thus our affirmance implies no agreement with the trial judge's characterizations of the book outside that setting.
6
It is suggested in dissent that petitioners were unaware that the record being established could be used in support of such an approach, and that petitioners should be afforded the opportunity of a new trial. However, the trial transcript clearly reveals that at several points the Government announced its theory that made the mode of distribution relevant to the determination of obscenity, and the trial court admitted evidence, otherwise irrelevant, toward that end.
7
Roth v. United States, supra, 354 U.S., at 495—496, 77 S.Ct., at 1314—1315 (Warren, C.J., concurring).
8
Evidence relating to petitioners' efforts to secure mailing privileges from these post offices was, contrary to the suggestion of Mr. JUSTICE HARLAN in dissent, introduced for the purpose of supporting such a finding. Scienter had been stipulated prior to trial. The
Government's position was revealed in the following colloquy, which occurred when it sought to introduce a letter to the post-master of Blue Ball, Pennsylvania:
'The COURT. Who signed the letter?
'Mr. CREAMER. It is signed by Frank R. Brady, Associate Publisher of Mr. Ginzburg. It is on Eros Magazine, Incorporated's stationery.
'The COURT. And your objection is—
'Mr. SHAPIRO. It is in no way relevant to the particular issue or publication upon which the defendant has been indicted and in my view, even if there was an identification with respect to a particular issue, it would be of doubtful relevance in that event.
'The COURT. Anything else to say?
'Mr. CREAMER. If Your Honor pleases, there is a statement in this letter indicating that it would be advantageous to this publication to have it disseminated through Blue Ball, Pennsylvania, post office. I think this clearly goes to intent, as to what the purpose of publishing these magazines was. At least, it clearly establishes one of the reasons why they were disseminating this material.
'The COURT. Admitted.'
9
Thus, one EROS advertisement claimed:
'Eros is a child of its times. * * * (It) is the result of recent court decisions that have realistically interpreted America's obscenity laws and that have given to this country a new breath of freedom
of expression. * * * EROS takes full advantage of this new freedom of expression. It is the magazine of sexual candor.'
In another, more lavish spread:
'EROS is a new quarterly devoted to the subjects of Love and Sex. In the few short weeks since its birth, EROS has established itself as the rave of the American intellectual community—and the rage of prudes everywhere! And it's no wonder: EROS handles the subjects of Love and Sex with complete candor. The publication of this mazagine—which is frankly and avowedly concerned with erotica has been enabled by recent court decisions ruling that a literary piece or painting, though explicitly sexual in content, has a right to be published if it is a genuine work of art.
'EROS is a genuine work of art. * * *'
An undisclosed number of advertisements for Liaison were mailed. The outer envelopes of these ads ask, 'Are you among the chosen few?' The first line of the advertisement eliminates the ambiguity: 'Are you a member of the sexual elite?' It continues:
'That is, are you among the few happy and enlightened individuals who believe that a man and woman can make love without feeling pangs of conscience? Can you read about love and sex and discuss them without blushing and stammering?
'If so, you ought to know about an important new periodical called Liaison.
'In short, Liaison is Cupid's Chronicle. * * *
'Though Liaison handles the subjects of love and sex with complete candor, I wish to make it clear that it is not a scandal sheet and it is not written for the man in the street. Liaison is aimed at intelligent, educated adults who can accept love and sex as part of life.
'* * * I'll venture to say that after you've read your first by-weekly issue, Liaison will be your most eagerly awaited piece of mail.'
10
Note 13, infra.
11
There is much additional evidence supporting the conclusion of petitioners' pandering. One of petitioners' former writers for Liaison, for example, testified about the editorial goals and practices of that publication.
12
Schwartz, Morals Offenses and the Model Penal Code, 63 Col.L.Rev. 669, 677 (1963).
13
The Government drew a distinction between the author's and petitioners' solicitation. At the sentencing proceeding the United States Attorney stated:
'* * * (the author) was distributing * * * only to physicians; she never had widespread, indiscriminate distribution of the Handbook, and, consequently, the Post Office Department did not interfere. * * * If Mr. Ginzburg had distributed and sold and advertised these books solely to * * * physicians * * * we, of course, would not be here this morning with regard to The Housewife's Handbook. * * *'
14
The Proposed Official Draft of the ALI Model Penal Code likewise recognizes the question of pandering as relevant to the obscenity issue, § 251.4(4); Tentative Draft No. 6 (May 6, 1957), at 1—3, 13—17, 45—46, 53; Schwartz, supra, n. 12; see Craig, Suppressed Books, 195—206 (1963). Compare Grove Press, Inc. v. Christenberry, 175 F.Supp. 488, 496—497 (D.C.S.D.N.Y.1959), aff'd 276 F.2d 433 (C.A.2d Cir. 1960); United States v. One Book Entitled Ulysses, 72 F.2d 705, 707 (C.A.2d Cir. 1934), affirming 5 F.Supp. 182 (D.C.S.D.N.Y.1933). See also The Trial of Lady Chatterly—Regina v. Penguin Books, Ltd. (Rolph. ed. 1961).
15
Our conclusion is consistent with the statutory scheme. Although § 1461, in referring to 'obscene * * * matter' may appear to deal with the qualities of material in the abstract, it is settled that the mode of distribution may be a significant part in the determination of the obscenity of the material involved. United States v. Rebhuhn, supra. Because the statute creates a criminal remedy, cf. Manual Enterprises v. Day, 370 U.S. 478, 495, 82 S.Ct. 1432, 1441, 8 L.Ed.2d 639, (opinion of Brennan, J.), it readily admits such an interpretation, compare United States v. 31 Photographs, etc., 156 F.Supp. 350 (D.C.S.D.N.Y.1957).
16
See New York Times Co. v. Sullivan, 376 U.S. 254, 265 266, 84 S.Ct. 710, 718, 11 L.Ed.2d 686; Smith v. People of State of California, 361 U.S. 147, 150, 80 S.Ct. 215, 217, 4 L.Ed.2d 205.
17
See Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262, where the Court viewed handbills purporting to contain protected expression as merely commercial advertising. Compare that decision with Jamison v. State of Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869, and Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, where speech having the characteristics of advertising was held to be an integral part of religious discussions and hence protected. Material sold solely to produce sexual arousal, like commercial advertising, does not escape regulation because it has been dressed up as speech, or in other contexts might be recognized as speech.
18
Compare Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233, with Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313. Cf. Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513; Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471; 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487.
19
One who advertises and sells a work on the basis of its prurient appeal is not threatened by the perhaps inherent residual vagueness of the Roth test, cf. Dombrowski v. Pfister, 380 U.S. 479, 486—487, 491—492, 85 S.Ct. 1116, 1120—1121, 1123—1124, 14 L.Ed.2d 22; such behavior is centrol to the objectives of criminal obscenity laws. ALI Model Penal Code, Tentative Draft No. 6 (May 6, 1957), pp. 1—3, 13—17; Comments to the Proposed Official Draft § 251.4, supra; Schwartz, Morals Offenses and the Model Penal Code, 63 Col.L.Rev. 669, 677—681 (1963); Paul & Schwartz, Federal Censorship—Obscenity in the Mail, 212—219 (1961); see Mishkin v. State of New York, 383 U.S. 502, at 507, n. 5, 86 S.Ct. 958, at 962.
1
See No. 49, Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, and No. 368, A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Massachusetts, 383 U.S. 413, 86 S.Ct. 975.
2
As I understand all of the opinions in this case and the two related cases decided today, three things must be proven to establish material as obscene. In brief these are (1) the material must appeal to the prurient interest, (2) it must be parently offensive, and (3) it must have no redeeming social value. Mr. Justice Brennan in his opinion in A Book Named 'John Cleland's Memoirs' v. Attorney General of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, which is joined by the Chief Justice and Mr. Justice Fortas, is of the opinion that all three of these elements must coalesce before material can be labeled obscene. Mr. Justice Clark in a dissenting opinion in Memoirs indicates, however, that proof of the first two elements alone is enough to show obscenity and that proof of the third—the material must be utterly without redeeming social value—is only an aid in proving the first two. In his dissenting opinion in Memoirs Mr. Justice White states that material is obscene 'if its predominant theme appeals to the prurient interest in a manner exceeding customary limits of candor.' In the same opinion Mr. Justice White states that the social importance test 'is relevant only to determining the predominant prurient interest of the material.'
3
See the opinion of Mr. Justice Brennan, concurred in by Mr. Justice Goldberg in Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793, but compare the dissent in that case of The Chief Justice, joined by Mr. Justice Clark, at 199, 84 S.Ct. at 1684.
1
Marcus v. Search Warrants etc., 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127; A Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809; Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649.
2
Butler v. State of Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412; Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215; Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (opinion of Harlan, J.).
3
The Court's premise is that Ginzburg represented that his publications would be sexually arousing. The Court, however, recognized in Roth: '(S)ex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest * * * i.e., a shameful or morbid interest in nudity, sex, or excretion * * *.' Id., 354 U.S. 487 and n. 20, 77 S.Ct. 1310 (emphasis added). The advertisements for these publications, which the majority quotes (ante, at 468-469, n. 9), promised candor in the treatment of matters pertaining to sex, and at the same time proclaimed that they were artistic or otherwise socially valuable. In effect, then, these advertisements represented that the publications are not obscene.
4
Rev. Von Hilsheimer obtained an A.B. at the University of Miami in 1951. He did graduate work in psychology and studied analysis and training thereapy. Thereafter, he did graduate work as a theological student, and received a degree as a Doctor of Divinity from the University of Chicago in 1957. He had extensive experience as a group counselor, lecturer, and family counselor. He was a consultant to President Kennedy's Study Group on National Voluntary Services, and a member of the board of directors of Mobilization for Youth.
5
United States v. Roth, 2 Cir., 237 F.2d 796, 822 and n. 58 (concurring opinion).
6
The Kronhausens wrote Pornography and the Law (1959).
7
The extensive literary comment which the book's publication generated demonstrates that it is not 'utterly without redeeming social importance.' See, e.g., New York Review of Books, p. 6 (Jan. 9, 1964); New Yorker, pp. 79—80 (Jan. 4, 1964); Library Journal, pp. 4743—4744 (Dec. 15, 1963); New York Times Book Review, p. 10 (Nov. 10, 1963); Time, pp. 102—104 (Nov. 8, 1963); Newsweek, pp. 98—100 (Oct. 28, 1963); New Republic, pp. 23—27 (Dec. 28, 1963).
8
See Krafft-Ebing, Psychopathia Sexualis, p. 89 et seq. (1893); Eisler, Man Into Wolf, p. 23 et seq. (1951); Stekel, Sadism and Masochism (1929) passium; Bergler, Principles of Self-Damage (1959) passim; Reik, Masochism in Mordern Man (1941) passim.
9
The Court of Appeals summarized the contents as follows:
'The article 'Sappho Remembered' is the story of a lesbian's influence on a young girl only twenty years of age but 'actually nearer sixteen in many essential ways of maturity', in her struggle to choose between a life with the lesbian, or a normal married life with her childhood sweetheart. The lesbian's affair with her roommate while in college, resulting in the lesbian's expulsion from college, is recounted to bring in the jealousy angle. The climax is reached when the young girl gives up her chance for a normal married life to live with the lesbian. This article is nothing more than cheap pornography calculated to promote lesbianism. It falls far short of dealing with homosexuality from the scientific, historical and critical point of view.
'The poem 'Lord Samuel and Lord Montagu' is about the alleged homosexual activities of Lord Montagu and other British Peers and contains a warning to all males to avoid the public toilets while Lord Samuel is 'sniffing round the drains' of Piecadilly (London). * * *
'The stories 'All This and Heaven Too,' and 'Not Til the End', pages 32—36, are similar to the story 'Sappho Remembered', except that they relate to the activities of the homosexuals rather than lesbians.' 241 F.2d 772, 777, 778.
There are other decisions of ours which also reversed judgments condemning publications catering to a wider range of literary testes than we seem to tolerate today. See, e.g., Mounce v. United States, 355 U.S. 180, 78 S.Ct. 267, 2 L.Ed.2d 187, vacating and remanding 9 Cir., 247 F.2d 148 (nudist magazines); Sunshine Book Co. v. Summerfield, 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 352, reversing 101 U.S.App.D.C. 358, 249 F.2d 114 (nudist magazine); Tralins v. Gerstein, 378 U.S. 576, 84 S.Ct. 1903, 12 L.Ed.2d 1033, reversing Fla.App., 151 So.2d 19 (book titled 'Pleasure Was My Business' depicting the happenings in a house of prostitution); Grove Press, Inc., v. Gerstein, 378 U.S. 577, 84 S.Ct. 1909, 12 L.Ed.2d 1035, reversing, Fla.App., 156 So.2d 537 (book titled 'Tropic of Cancer' by Henry Miller).
10
See, e.g., Constitution of the Union of Burma, Art. 17(i), reprinted in I Peaslee, Constitutions of Nations, p. 281 (2d ed. 1956); Constitution of India, Art. 19(2), II Peaslee, op. cit. supra, at p. 227; Constitution of Ireland, Art. 40(6)(1)(i), II Peaslee, op. cit. supra, at p. 458; Federal Constitution of the Swiss Confederation, Art. 55, III Peaslee, op. cit. supra, at p. 344; Constitution of Libya, Art. 22, I Peaslee, Constitutions of Nations, p. 438 (3d ed. 1965); Constitution of Nigeria, Art. 25(2), I Peaslee, op. cit. supra, at p. 605; Constitution of Zambia, Art. 22(2), I Peaslee, op. cit. supra, at pp. 1040—1041.
1
The prevailing opinion in A Book Named 'John Cleland's Memoirs' v. Attorney General, 383 U.S. 413, 86 S.Ct. 975, makes clearer the constitutional ramifications of this new doctrine.
2
Although at one point in its opinion the Court of Appeals referred to 'the shoddy business of pandering,' 338 F.2d 12, 15, a reading of the opinion as a whole plainly indicates that the Court of Appeals did not affirm these convictions on the basis on which this Court now sustains them.
3
To show pandering, the Court relies heavily on the fact that the defendants sought mailing privileges from the postmasters of Intercourse and Blue Ball, Pennsylvania, before settling upon Middlesex, New Jersey, as a mailing point (383 U.S., pp. 467—468, 86 S.Ct., pp. 945—946). This evidence was admitted, however, only to show required scienter, see 338 F.2d 12, 16. On appeal to the Court of Appeals and to this Court, petitioner Ginzburg asserted that at most the evidence shows the intent of petitioner Eros Magazine, Inc., and was erroneously used against him. The Court of Appeals held the point de minimis, 338 F.2d, at 16—17, on the ground that the parties had stipulated the necessary intent. The United States, in its brief in this Court, likewise viewed this evidence as relating solely to scienter; nowhere did the United States attempt to sustain these convictions on anything like a pandering theory.
1
Different constitutional questions would arise in a case involving an assault upon individual privacy by publication in a manner so blatant or obtrusive as to make it difficult or impossible for an unwilling individual to avoid exposure to it. Cf. e.g., Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; Public Utilities Commission of District of Columbia v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068; Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510. Still other considerations might come into play with respect to laws limited in their effect to those deemed insufficiently adult to make an informed choice. No such issues were tendered in this case.
2
It is not accurate to say that the roth opinion 'fashioned standards' for obscenity, because, as the Court explicitly stated, no issue was there presented as to the obscenity of the material involved. 354 U.S., at 481, n. 8, 77 S.Ct., at 1307. And in no subsequent case has a majority of the Court been able to agree on any such 'standards.'
3
'* * * Such materials include photographs, both still and motion picture, with no pretense of artistic value, graphically depicting acts of sexual intercourse, including various acts of sodomy and sadism, and sometimes involving several participants in scenes of orgy-like character. They also include strips of drawings in comic-book format grossly depicting similar activities in an exaggerated fashion. There are, in addition, pamphlets and booklets, sometimes with photographic illustrations, verbally describing such activities in a bizarre manner with no attempt whatsoever to afford portrayals of character or situation and with no pretense to literary value. All of this material * * * cannot conceivably be characterized as embodying communication of ideas or artistic values inviolate under the First Amendment. * * *'
4
During oral argument we were advised by government counsel that the vast majority of prosecutions under this statute involve material of this nature. Such prosecutions usually result in guilty pleas and never come to this Court.
5
See A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Massachusetts, 383 U.S. 413, 86 S.Ct. 975.
| 23
|
383 U.S. 569
86 S.Ct. 1030
16 L.Ed.2d 102
William MALAT et ux., Petitioners,v.Robert A. RIDDELL, District Director of Internal Revenue.
No. 487.
Argued March 3, 1966.
Decided March 21, 1966.
George T. Altman, Beverly Hills, Cal., for petitioners.
Jack S. Levin, Washington, D.C., for respondent.
PER CURIAM.
1
Petitioner1 was a participant in a joint venture which acquired a 45-acre parcel of land, the intended use for which is somewhat in dispute. Petitioner contends that the venturers' intention was to develop and operate an apartment project on the land; the respondent's position is that there was a 'dual purpose' of developing the property for rental purposes or selling, whichever proved to be the more profitable. In any event, difficulties in obtaining the necessary financing were encountered, and the interior lots of the tract were subdivided and sold. The profit from those sales was reported and taxed as ordinary income.
2
The joint venturers continued to explore the possibility of commercially developing the remaining exterior parcels. Additional frustrations in the form of zoning restrictions were encountered. These difficulties persuaded petitioner and another of the joint venturers of the desirability of terminating the venture; accordingly, they sold out their interests in the remaining property. Petitioner contends that he is entitled to treat the profits from this last sale as capital gains; the respondent takes the position that this was 'property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business,'2 and thus subject to taxation as ordinary income.
3
The District Court made the following finding:
4
'The members of (the joint venture), as of the date the 44.901 acres were acquired, intended either to sell the property or develop it for rental, depending upon which course appeared to be most profitable. The venturers realized that they had made a good purchase price-wise and, if they were unable to obtain acceptable construction financing or rezoning * * * which would be prerequisite to commercial development, they would sell the property in bulk so they wouldn't get hurt. The purpose of either selling or developing the property continued during the period in which (the joint venture) held the property.'
5
The District Court ruled that petitioner had failed to establish that the property was not held primarily for sale to customers in the ordinary course of business, and thus rejected petitioner's claim to capital gain treatment for the profits derived from the property's resale. The Court of Appeals affirmed, 9 Cir., 347 F.2d 23. We granted certiorari (382 U.S. 900, 86 S.Ct. 244, 15 L.Ed.2d 154) to resolve a conflict among the courts of appeals3 with regard to the meaning of the term 'primarily' as it is used in § 1221(1) of the Internal Revenue Code of 1954.
6
The statute denies capital gain treat ment to profits reaped from the sale of 'property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business.' (Emphasis added.) The respondent urges upon us a construction of 'primarily' as meaning that a purpose may be 'primary' if it is a 'substantial' one.
7
As we have often said, 'the words of statutes—including revenue acts—should be interpreted where possible in their ordinary, everyday senses.' Crane v. Commissioner of Internal Revenue, 331 U.S. 1, 6, 67 S.Ct. 1047, 1051, 91 L.Ed. 1301. And see Hanover Bank v. Commissioner of Internal Revenue, 369 U.S. 672, 687—688, 82 S.Ct. 1080, 1088—1089, 8 L.Ed.2d 187; Commissioner of Internal Revenue v. Korell, 339 U.S. 619, 627—628, 70 S.Ct. 905, 909, 94 L.Ed. 1108. Departure from a literal reading of statutory language may, on occasion, be indicated by relevant internal evidence of the statute itself and necessary in order to effect the legislative purpose. See, e.g., Board of Governors of Federal Reserve System v. Agnew, 329 U.S. 441, 446—448, 67 S.Ct. 411, 413—415, 91 L.Ed. 408. But this is not such an occasion. The purpose of the statutory provision with which we deal is to differentiate between the 'profits and losses arising from the everyday operation of a business' on the one hand (Corn Products Refining Co. v. Commissioner of Internal Revenue, 350 U.S. 46, 52, 76 S.Ct. 20, 24, 100 L.Ed. 29) and 'the realization of appreciation in value accrued over a substantial period of time' on the other. (Commissioner of Internal Revenue v. Gillette Motor Transport, Inc., 364 U.S. 130, 134, 80 S.Ct. 1497, 1500, 4 L.Ed.2d 1617.) A literal reading of the statute is consistent with this legislative purpose. We hold that, as used in § 1221(1), 'primarily' means 'of first importance' or 'principally.'
8
Since the courts below applied an incorrect legal standard, we do not consider whether the result would be supportable on the facts of this case had the correct one been applied. We believe, moreover, that the appropriate disposition is to remand the case to the District Court, for fresh fact-findings, addressed to the statute as we have now construed it.
9
Vacated and remanded.
10
Mr. Justice BLACK would affirm the judgments of the District Court and the Court of Appeals.
11
Mr. Justice WHITE took no part in the decision of this case.
1
The taxpayer and his wife who filed a joint return are the petitioners, but for simplicity are referred to throughout as 'petitioner'.
2
Internal Revenue Code of 1954, § 1221(1), 26 U.S.C. § 1221(1):
'For purposes of this subtitle, the term 'capital asset' means property held by the taxpayer (whether or not connected with his trade or business), but does not include—
'(1) * * * property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business.'
3
Compare Rollingwood Corp. v. Commissioner of Internal Revenue, 190 F.2d 263, 266 (C.A.9th Cir.); American Can Co. v. Commissioner of Internal Revenue, 317 F.2d 604, 605 (C.A.2d Cir.), with United States v. Bennett, 186 F.2d 407, 410—411 (C.A.5th Cir.); Municipal Bond Corp. v. Commissioner of Internal Revenue, 341 F.2d 683, 688—689 (C.A.8th Cir.). Cf. Recordak Corp. v. United States, 325 F.2d 460, 463—464, 163 Ct.Cl. 294, 300—301.
| 1112
|
383 U.S. 607
86 S.Ct. 1018
16 L.Ed.2d 131
Philip R. CONSOLO, Petitioner,v.FEDERAL MARITIME COMMISSION et al.
No. 63.
Argued Dec. 6 and 7, 1965.
Decided March 22, 1966.
[Syllabus from pages 607-608 intentionally omitted]
Robert N. Kharasch, Washington, D.C., for petitioner.
Richard A. Posner, Washington, D.C., for United States and Federal Maritime Commission, pro hac vice, by special leave of Court.
J. Alton Boyer, Washington, D.C., for respondent, Flota Mercante Grancolombiana, S.A.
Mr. Justice WHITE delivered the opinion of the Court.
1
We have been asked, in this case, to determine whether the Court of Appeals had jurisdiction to set aside a reparation order of the Federal Maritime Commission which was before it upon the consolidated appeals of the shipper and the carrier, the shipper asking that the award be increased and the carrier asking that it be set aside. In addition, we have been asked to determine whether the Court of Appeals applied the proper standard of review when it set aside the reparation award. We answer the first question in the affirmative and the second in the negative. Accordingly, we reverse.
2
Flota Mercante Grancolombiana, S.A. (Flota) is a common carrier engaged in carrying bananas from South America to the United States. In July 1955, it entered into an exclusive two-year carrying contract with Panama Ecuador, a banana shipper, and gave Penama Ecuador an option to renew the contract for an additional three years, subject to its meeting the rate offered by any other shipper. This exclusive contract was executed after the Federal Maritime Board, in June 1953, had ruled that Flota's competitor, Grace Line, was a common carrier of bananas and had violated the Shipping Act, 1916, §§ 14 Fourth1 and 16 First,2 by refusing to allocate its banana shipping space equitable among all qualified shippers.3 In April 1957, the Board reiterated its view that Grace Line had violated the Shipping Act by signing exclusive carrying contracts and it ordered Grace Line to offer to all qualified shippers, upon a fair basis, shipping space on forward-booking contracts not to exceed two years in length.4 One month after this ruling Flota rejected a bid by Consolo, a banana shipper competing with Panama Ecuador, for the entire shipping space and honored the option given Panama Ecuador by executing to it a three-year exclusive carrying contract. Shortly thereafter Consolo demanded a 'fair and reasonable' amount of the carrying space pursuant to the previous Grace Line decisions of the Board and threatened to file a complaint if its demand were rejected. Flota rejected the demand and itself filed a petition before the Board for declaratory relief exonerating it from liability to Consolo. Consolo followed with a complaint before the Board asking for damages. These proceedings were consolidated and, in June, 1959, the Board ruled that Flota's three-year exclusive contract with Panama Ecuador violated the Shipping Act, §§ 14 Fourth and 16 First, and it ordered Flota to allocate its space fairly among all qualified banana shippers.5 Pursuant to § 2(c) of the Administrative Orders Review Act (64 Stat. 1129, as amended, 5 U.S.C. § 1032(c) (1964 ed.)), Flota petitioned the Court of Appeals for the District of Columbia Circuit to set aside this order. This appeal was stayed, pending determination of the reparations proceeding. In March 1961, the Board ordered Flota to pay Consolo certain reparations for the violation of the Shipping Act.6 Both Flota and Consolo appealed from this reparation order and each intervened in the appeal of the other, Consolo asking that the reparation award be increased and Flota asking that it be set aside. These appeals were consolidated together with Flota's appeal to set aside the Board's finding of a violation of the Shipping Act.
3
The Court of Appeals held that it had jurisdiction to consider these appeals. It affirmed the Board's finding that Flota had violated the Shipping Act but remanded to the Board the issue of reparations so that it could 'consider whether, under all the circumstances, it is inequitable to force Flota to pay reparations * * *.'7 On remand the Federal Maritime Commission8 concluded that it was not inequitable to require Flota to pay Consolo reparations, although it did reduce the amount of the award.9 Again, both Flota and Consolo appealed to the Court of Appeals for the District of Columbia Circuit, each intervened in the appeal of the other, and the two appeals were consolidated.10 Again Consolo maintained that the award was too small and Flota argued that it should be set aside in part or in whole. The Court of Appeals reversed and vacated the reparation award, concluding that '(i)n view of the substantial evidence showing that it would be inequitable to assess damages against Flota in favor of Consolo, * * * the Commission abused the discretion granted it under Section 22 of the Shipping Act11 (to issue reparation awards) * * *.' 119 U.S.App.D.C. 345, 352, 342 F.2d 924, 931. Consolo petitioned this Court for a writ of certiorari to review that decision, which we granted. 381 U.S. 933, 85 S.Ct. 1764, 14 L.Ed.2d 698.
I.
4
The first question we have is whether the Court of Appeals had jurisdiction of the appeals filed by Consolo and Flota.12
5
As we read the controlling statutory provisions, it seems clear that the Court of Appeals had jurisdiction to consider Consolo's direct appeal from the Commission's reparation order granting only part of the relief requested. Section 2 of the Administrative Orders Review Act (5 U.S.C. § 1032 (1964 ed.)) gives the courts of appeals 'exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of * * * (c) such final orders of the * * * Federal Maritime Board * * * as are now subject to judicial review pursuant to the provisions of section 830 of Title 46 * * *.' Section 830 of Title 46 (§ 31 of the Shipping Act, 1916, 39 Stat. 738, as amended), in turn, says that, 'except as otherwise provided,' orders of the Federal Maritime Board are reviewable pursuant to the same procedures as are available 'in similar suits in regard to orders of the Interstate Commerce Commission * * *.' Accordingly, if pursuant to provisions in the Interstate Commerce Act a shipper can bring a direct review proceeding to challenge the adequacy of a reparation award issued by the interstate Commerce Commission, he should be permitted to bring a similar proceeding to challenge the adequacy of a reparation award from the Federal Maritime Commission, subject of course to any special provisions applicable to maritime cases such as the provision in § 2 of the Administrative Orders Review Act that direct review proceedings shall be conducted in the courts of appeals rather than the district courts.
6
The Court has previously held that an order of the Interstate Commerce Commission denying a shipper's reparation claim is subject to direct review at the instance of the shipper, United States v. Interstate Commerce Comm., 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451, primarily because the adverse order would be wholly unreviewable unless the shipper is permitted to bring an appeal. See Rochester Tel. Corp. v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147. Likewise, in D. L. Piazza Co. v. West Coast Line, Inc., 2 Cir., 210 F.2d 947, cert. denied, 348 U.S. 839, 75 S.Ct. 42, 99 L.Ed. 661, the Court of Appeals for the Second Circuit was of the opinion that the principles of United States v. Interstate Commerce Comm. were authority for allowing the shipper to seek direct review of an order of the Federal Maritime Board denying a major part, but not all, of the shipper's reparation claim. We think Piazza was correct in this respect and we accordingly agree with the court below that it would have jurisdiction to consider Consolo's appeal.
7
As for Flota's appeal, much of what we have said in Interstate Commerce Comm. v. Atlantic Coast Line R. Co., 383 U.S. 576, 86 S.Ct. 1000, decided today, is pertinent to our consideration here. In that case, where direct review had not been sought by the shipper, we held that the carrier may have review of a reparation order of the Interstate Commerce Commission only in connection with the shipper's enforcement action under § 16(2) of the Interstate Commerce Act. Section 30 of the Shipping Act, 39 Stat. 737, as amended, provides for a similar action by the shipper to enforce a reparation award by the Maritime Commission and extends certain procedural advantages to the shipper generally comparable to those provided by § 16(2) of the Interstate Commerce Act. He has a wide scope of venue; he is not liable for costs unless they accrue on his own appeal; he is allowed reasonable attorney fees if he ultimately prevails; he is the beneficiary of broad service of process and joinder provisions; and the findings and order of the Commission are given prima facie effect in the enforcement action. These advantages were given to the shipper because he was considered generally to be the weaker party in the controversy and he serves an important role in the enforcement of the Shipping Act. It was to protect advantages similar to these by preventing the carrier from emasculating the enforcement action that we concluded in Interstate Commerce Comm. v. Atlantic Coast Line R. Co., that the carrier could not seek review of the reparation award except in connection with a shipper's enforcement action. It is readily apparent, we think, that this holding is applicable to Shipping Act cases when the shipper himself has not sought direct review in the Court of Appeals.
8
Here, however, the jurisdiction of the Court of Appeals has been invoked by the shipper, who seeks to increase the amount of his damages. In these circumstances, we find nothing in the Shipping Act or the Administrative Orders Review Act that would prevent the Court of Appeals from also considering Flota's request, either as a consolidated appeal pursuant to § 2 of the Administrative Orders Review Act or as an intervenor's cross-claim, to have the reparation order set aside or reduced, a result which will not, in our view, substantially impair the procedural advantages intended for a shipper under § 30.
9
Concerning venue, the shipper will still be able to select the forum. Although the venue provisions governing an appeal are somewhat different from those governing an enforcement suit, the shipper still has relatively wide opportunities to find a convenient forum. Section 3 of the Administrative Orders Review Act (64 Stat. 1130, 5 U.S.C. § 1033 (1964 ed.)) enables the petitioner to bring suit in the judicial circuit where he resides, where his principal office is located or in the District of Columbia. By requiring that the carrier's review proceeding be brought in the court selected by the shipper for his appeal, all the issues in the controversy will be tried in a relatively convenient forum for the shipper.
10
The shipper will not have the benefit in a direct review of those provisions in § 30 that exempt him from his costs and enable him to collect his attorney's fees if he ultimately prevails.13 However, the only additional costs and attorney's fees that the shipper will incur if the carrier is permitted to challenge the reparation award upon a consolidated appeal or cross-claim are those costs and fees attributable to additional issues not otherwise raised by the shipper's appeal. To the extent the arguments a carrier may advance to decrease or set aside an award would be asserted in any event as defenses to the shipper's claim for increased reparations, no additional costs or fees will be incurred beyond those which the shipper would normally assume for his appeal. And, if the shipper prevails against the carrier's appeal, any additional costs, although not attorney's fees, as are incurred may be assessed against the carrier as the losing party under 28 U.S.C. § 1912 (1964 ed.). See also District of Columbia Cir.R. 20(b).
11
The minimal disadvantages resulting to the shipper from permitting the carrier to attack the reparation order are more than offset by the desirability of a prompt and efficient determination of the validity of the Commission's order. Many of the arguments a carrier might make in defense against a shipper's suit to increase the award could also be advanced to show that the award should be reduced or set aside entirely. And, once the carrier intervenes in the shipper's appeal, all the parties interested in the complete resolution of the validity of the Commission's order are before the court. In this situation it would make little sense to require the carrier to break off his argument short of its logical conclusion and relitigate it anew before a district court in an enforcement action.14
12
With the jurisdiction of the Court of Appeals properly invoked by the shipper, there is, therefore, every reason to permit the carrier not only to litigate the amount of the reparation order but also to insist upon a determination of the validity of the Commission's order, both with respect to the carrier's violation of the Act15 and with respect to the reparation award itself. If the carrier finally prevails on either of these claims, there would then be no occasion for a separate enforcement suit in the District Court. If the carrier's claims going to the validity of the order are rejected by the Court of Appeals, the determination of a violation by the carrier would be binding in the subsequent enforcement action by the shipper; nor would there be any basis in the course of a subsequent enforcement action conducted in accordance with § 30 to redetermine whether or not the award itself is supported by substantial evidence in the administrative record.16 Hence, the shipper will need to litigate the issue of validity only once, and this in the Court of Appeals at the instance of the carrier. Although two proceedings may be required to collect his damages, this is only a necessary incident of the shipper's decision to bring his appeal in the first place.
13
In short, although a shipper may lose some of the procedural advantages given him by § 30 if he is forced to defend the validity of the Commission's order in conjunction with his appeal, these losses generally will not be substantial. To the extent that he is disadvantaged, this is the result of a conscious choice he has made. And from the point of view of the enforcement of the Shipping Act, it is certainly less important that the shipper be assisted in his efforts to obtain a greater award than it is to assist him in his efforts to enforce an existing award. The Court of Appeals was correct in sustaining its own jurisdiction to hear Flota's appeal.
II.
14
We turn, then, to the standard of review used by the Court of Appeals when it reversed the Commission's reparation order.
15
The Court of Appeals rejected the Commission's finding that it would not be inequitable to award Consolo reparations because it felt this finding 'ignores * * * the substantial weight of the evidence * * *.' 119 U.S. App.D.C. 345, 347, 342 F.2d 924, 926. It then concluded that the Commission abused its discretion in ordering reparations because 'of the substantial evidence showing that (the reparations) would be inequitable.' Id., at 352, 342 F.2d, at 931. In effect, the standard of review applied and articulated by the Court of Appeals in this case was that if 'substantial evidence' or 'the substantial evidence' supports a conclusion contrary to that reached by the Commission, then the Commission must be reversed.17 This standard is not consistent with that provided by the Administrative Procedure Act.
16
Section 10(e) of the Administrative Procedure Act (60 Stat. 243, 5 U.S.C. § 1009(e) (1964 ed.)) gives a reviewing court authority to 'set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, (or) an abuse of discretion * * * (or) (5) unsupported by substantial evidence * * *.' Cf. United States v. Interstate Commerce Comm., 91 U.S.App.D.C. 178, 183—184, 198 F.2d 958, 963—964, cert. denied, 344 U.S. 893, 73 S.Ct. 212, 97 L.Ed. 691. We have defined 'substantial evidence' as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' Consolidated Edison Co. of New York v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126. '(I)t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.' National Labor Relations Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660.18 This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. National Labor Relations Board v. Nevada Consolidated Copper Corp., 316 U.S. 105, 106, 62 S.Ct. 960, 961, 86 L.Ed. 1305; Keele Hair & Scalp Specialists, Inc. v. FTC, 5 Cir., 275 F.2d 18, 21.
17
Congress was very deliberate in adopting this standard of review.19 It frees the reviewing courts of the timeconsuming and difficult task of weighing the evidence, it gives proper respect to the expertise of the administrative tribunal and it helps promote the uniform application of the statute.20 These policies are particularly important when a court is asked to review an agency's fashioning of discretionary relief.21 In this area agency determinations frequently rest upon a complex and hard-to-review mix of considerations. By giving the agency discretionary power to fashion remedies, Congress places a premium upon agency expertise, and, for the sake of uniformity, it is usually better to minimize the opportunity for reviewing courts to substitute their discretion for that of the agency. These policies would be damaged by the standard of review articulated by the court below.
18
Ordinarily we would be inclined to remand to the Court of Appeals for further consideration in light of the standard of review established by the Administrative Procedure Act. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; National Labor Relations Board v. Walton Mfg. Co., 369 U.S. 404, 82 S.Ct. 853, 7 L.Ed.2d 829. However, in view of the fact that this controversy already dates back more than eight years, that it has been before the Court of Appeals twice and that the relevant standard is not hard to apply in this instance, we think this controversy had better terminate now. See O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483.
19
Section 22 of the Shipping Act, 1916, provides that 'The Board * * * may direct the payment * * * of full reparation to the complainant for the injury caused by such violation.' 46 U.S.C. § 821 (1964 ed.). (Emphasis added.) This contemplates that the Commission shall have a certain amount of discretion,22 but it does not specify what factors are to be considered by the Commission in exercising this discretion. However, we assume that the Commission could validly consider such factors as whether a reparation award would enhance the enforcement of the Act, whether the shipper had suffered compensable injury and whether the award of reparations would be consistent with the previous application of the Act, as well as the factor of culpability of the carrier.23 Hence, even if the carrier's conduct were such that it would be inequitable to require it to pay a reparation award, this by itself might not be sufficient to establish that the Commission abused its discretion under the Act. However, we need not rest upon this distinction because we feel that it is clear that there is substantial evidence in the record, considered as a whole, to support the Commission's findings that it would not be inequitable in this case to require Flota to pay Consolo reparations.
20
The Maritime Board determined, and the Court of Appeals agreed, that Flota had been guilty of 'unfairly' or 'unjustly' discriminating against Consolo and of giving an 'undue unreasonable preference' to Panama Ecuador in violation of § 14 Fourth and § 16 First of the Shipping Act.24 These findings, which were essential to the determination that Flota had violated the Shipping Act, substantially undercut any equities that Flota might claim. Nevertheless, the Court of Appeals considered it inequitable to make Flota pay reparations because Flota might have believed, in view of the unsettled law, that it was not illegal to exclude Consolo.
21
Prior to Flota's rejection of Consolo's request for a fair portion of the shipping space, the Federal Maritime Board had decided only two cases relevant to this issue: Consolo v. Grace Line, supra, and Banana Distributors, Inc. v. Grace Line, supra. Both cases held invalid exclusive dealing contracts similar to the one in question here. The Court of Appeals would minimize these two cases as precedents because no order was issued in the first Grace Line decision and the second Grace Line decision was ultimately reversed and remanded by the Court of Appeals for the Second Circuit. Nevertheless, at the time Flota entered into the 1957 exclusive contract with Panama Ecuador and at the time it rejected Consolo's request for a fair share of the shipping space, these decisions were authoritative pronouncements by the agency primarily responsible for administering and interpreting the Shipping Act. And, although the second Grace Line decision was ultimately reversed and remanded, upon reconsideration the Board still found the exclusive contract there is question to be illegal and that decision was ultimately affirmed upon appeal to the Second Circuit.25
22
As further evidence of good faith, the Court of Appeals was of the opinion that Flota could reasonably have believed its situation was different from that presented to the Board in the Grace Line cases because of physical differences between its vessels and those owned by Grace Line. However, in its first decision affirming the Board's finding of a violation the Court of Appeals had affirmed that the record 'adequately supported' the Board's finding that 'the differences between Flota's vessels and Grace's vessels are not impressive.' 112 U.S.App.D.C. 302, 307, 302 F.2d 887, 892. We think the Court's first judgment was the correct one. The record is adequate to establish that Flota took a deliberate, and we think substantial, risk when it gambled that the previous contrary precedent could be distinguished. We agree with the Commission that there is nothing inhering in this situation that would make it inequitable to require Flota to pay reparations.
23
Nor do we feel the record reveals that the reparation award is inequitable because Flota had asked for declaratory relief or because that request was pending before the Board for almost two years. In the first place, Flota did not request declaratory relief until after it had entered into the offending exclusive-dealing contract with Panama Ecuador and until it became clear that Consolo was going to sue anyway. Under these circumstances, the Commission was justifiably skeptical about Flota's motives in bringing suit. Further, although Flota's suit was pending for about two years, the record indicates that much of the delay involved in this case was at the request or approval of Flota. At any rate, it has never been the law that a litigant is absolved from liability for that time during which his litigation is pending. National Labor Relations Board v. Electric Vacuum Cleaner Co., 315 U.S. 685, 62 S.Ct. 846, 86 L.Ed. 1120; Louisville & Nashville R. Co. v. Sloss-Sheffield Steel & Iron Co., 269 U.S. 217, 46 S.Ct. 73, 70 L.Ed. 242. During this time Flota was able to postpone the predictable demise of its discriminatory contract and Consolo continued to suffer injury.
24
Similarly, we do not believe that Flota acquired any 'equities' by being caught between the conflicting demands of Consolo and Panama Ecuador. Not only was this a dilemma of Flota's own making, but in 1958 Flota rejected an opportunity to escape it. At that time Panama Ecuador announced that it was going to cancel the contract unless Flota reduced its rates. Although believing itself under no legal obligation to reduce rates, Flota nevertheless did so in order to perpetuate the illegal exclusive-dealing contract with Panama Ecuador. Finally, there was a provision in Flota's contract with Panama Ecuador that absolved Flota from liability for refusing to comply with the contract if it was illegal. Although absolution of liability depended upon the contract being declared, in fact, illegal, in light of the previous Grace Line decisions we think this would have been the more reasonable course of action.
25
Finally we reject the argument that Flota did not benefit from its policy of excluding Consolo and that Consolo lost 'only' expected profits. There is evidence in the record that Flota considered its exclusive-dealing contract with Panama Ecuador more profitable than would have been a multiple contract with several shippers.26 If Flota did not believe there was an advantage in retaining its exclusive contract with Panama Ecuador it is reasonable to think that it would have taken the opportunity given it in 1958 by Panama Ecuador to cancel that contract and offer space equitably to all shippers. Furthermore, we think the court below wrongly minimized the sting of losing expected profits resulting from being unjustly and illegally denied shipping space. Such a loss is real and it is certainly compensable under the Shipping Act. See Territory of New Mexico ex rel. McLean & Co. v. Denver & Rio Grande R. Co., 203 U.S. 38, 48—49, 27 S.Ct. 1, 2—3, 51 L.Ed. 78; Roberto Hernandez, Inc. v. Arnold Bernstein Schiffahrtsgesellschaft, M.B.H., 2 Cir., 116 F.2d 849, cert. denied, sub nom. Compania Espanola de Navegacion Maritima, S.A. v. Roberto Hernandez, Inc., 313 U.S. 582, 61 S.Ct. 1101, 85 L.Ed. 1539.
26
Without further belaboring this issue, suffice it to say that there is substantial evidence in the record considered as a whole for the Commission to conclude that, 'Flota initiated and pursued the unlawful act without good cause and without a satisfactory showing of good faith, and we have been unable, except as noted, to find any equity in its contentions whether viewed separately or together.' This being so, it was clear error on the part of the Court of Appeals to reverse the Commission's award of reparations.27
27
Reversed.
28
Mr. Justice BLACK took no part in the consideration or decision of this case.
1
'§ 14 Fourth. (No common carrier by water shall) Make any unfair or unjustly discriminatory contract with any shipper based on the volume of freight offered, or unfairly treat or unjustly discriminate against any shipper in the matter of (a) cargo space accommodations or other facilities, due regard being had for the proper loading of the vessel and the available tonnage; (b) the loading and landing of freight in proper condition; or (c) the adjustment and settlement of claims.' 39 Stat. 733, as amended, 46 U.S.C. § 812 (1964 ed.).
2
'§ 16 First. (It shall be unlawful for any common carrier by water) To make or give any undue or unreasonable preference or advantage to any particular person, locality, or description of traffic in any respect whatsoever, or to subject any particular person, locality, or description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever * * *.' 39 Stat. 734, as amended, 46 U.S.C. § 815 (1964 ed.).
3
Philip R. Consolo v. Grace Line Inc., 4 F.M.B. 293 (1953). No order was issued pursuant to this report.
4
Banana Distributors, Inc. v. Grace Line Inc., 5 F.M.B. 278 (1957). This decision predicated liability upon the theory that bananas were 'susceptible to common carriage' and could be carried by a carrier only under terms of common carriage. This decision was reversed and remanded by the Second Circuit, Grace Line, Inc. v. Federal Maritime Board, 263 F.2d 709. On remand the Board dropped its 'susceptibility' theory but nevertheless found Grace Line to be a common carrier under the Shipping Act and held it could not evade the requirements of the Act as to any part of the goods it carried. 5 F.M.B. 615 (1959). This was affirmed by the Second Circuit upon appeal. 280 F.2d 790, cert. denied, 364 U.S. 933, 81 S.Ct. 380, 5 L.Ed.2d 365.
5
5 F.M.B. 633, 641. This order was issued on July 2, 1959. Flota complied by September 1, 1959.
6
6 F.M.B. 262.
7
112 U.S.App.D.C. 302, 311, 302 F.2d 887, 896.
8
The functions and duties of the Federal Maritime Board, so far as relevant to this case, were transferred to the Federal Maritime Commission on August 12, 1961. Reorganization Plan No. 7 of 1961, 75 Stat. 840, 46 U.S.C. § 1111, note (1964 ed.).
9
7 F.M.C. 635.
10
None of the parties challenged, at this time, the jurisdiction of the Court of Appeals to hear these consolidated appeals.
11
'Any person may file with the Federal Maritime Board a sworn complaint setting forth any violation of this chapter by a common carrier by water, or other person subject to this chapter, and asking reparation for the injury, if any, caused thereby. * * * If the complaint is not satisfied the Board shall, except as otherwise provided in this chapter, investigate it in such manner and by such means, and make such order as it deems proper. The Board, if the complaint is filed within two years after the cause of action accrued, may direct the payment, on or before a day named, of full reparation to the complainant for the injury caused by such violation.' 39 Stat. 736, as amended, 46 U.S.C. § 821 (1964 ed.).
12
Much of what we said in Interstate Commerce Comm. v. Atlantic Coast Line R. Co., 383 U.S. 576, 86 S.Ct. 1000, is relevant to the jurisdictional issue presented by this case. The Senate Report explaining the Shipping Act expressly observed that the enforcement provisions of the Shipping Act were 'modeled very closely after the interstate-commerce act * * *.' S.Rep.No.689, 64th Cong., 1st Sess., p. 13. That report also counsels that 'the administration and enforcement provisions of the (interstate commerce) act and the nearly 30 years' experience of the Interstate Commerce Commission (may) be adopted with slight modifications to the purposes of (the Shipping Act).' Id., p. 12.
13
Unlike the Interstate Commerce Commission situation, there is no possibility here that an enforcement action can be joined with a direct review proceeding (thereby raising the possibility that the favorable provisions of the enforcement section may become applicable and ensuring that the Commission will be a party), because enforcement suits must be in the district courts and direct reviews can be taken only to the courts of appeals.
14
These same considerations of judicial economy and fairness to all the parties lie behind the doctrine of ancillary jurisdiction, Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750; Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753; 2 Moore, Federal Practice 8.07(5) (2d ed. 1965), and the doctrine that an intervenor of right may assert a crossclaim without independent jurisdictional grounds, 4 Moore, Federal Practice 24.17 (2d ed. 1963).
15
Of course, in this case the issue of Flota's violation of the Act was resolved in a previous direct appeal by Flota from the Board's cease-and-desist order. There is no question of the jurisdiction of the Court of Appeals to consider that appeal.
16
See our discussion of the defenses available to a carrier in an enforcement action at Interstate Commerce Comm. v. Atlantic Coast Line R. Co., 383 U.S., p. 594, n. 6, 86 S.Ct., p. 1011.
17
In its first opinion, remanding the issue of reparations to the Commission, the Court of Appeals said, 'But in reviewing the evidence (as opposed to reviewing issues of law), we are confined to a much more restricted standard, as the Administrative Procedure Act, § 1 et seq., 5 U.S.C.A. § 1001 et seq., and a long line of Supreme Court decisions, clearly indicate. See, e.g., Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); United States v. Carolina Freight Carriers Corp., 315 U.S. 475, 489, 62 S.Ct. 722, 86 L.Ed. 971 (1942). We have examined the appeals from the reparations award with these considerations in mind.' 112 U.S.App.D.C. 302, 309, 302 F.2d 887, 894. However, in its second opinion, when it reviewed the Commission's finding that it would not be inequitable to award reparations, the Court of Appeals made no reference to the Administrative Procedure Act. The standard of review articulated and apparently applied in that opinion was inconsistent with the Administrative Procedure Act.
We do not read the opinion below as asserting that the Court of Appeals, in a direct review proceeding, may conduct a de novo review of the equities of a reparation award. We find nothing in the Shipping Act, the Hobbs Act, or the Administrative Procedure Act that would authorize a de novo review in these circumstances, and in the absence of specific statutory authorization, a de novo review is generally not to be presumed. 4 Davis, Administrative Law Treatise § 29.08 (1958). See United States v. Carlo Bianchi & Co., Inc., 373 U.S. 709, 715, 83 S.Ct. 1409, 1413, 10 L.Ed.2d 652; Morrison-Knudsen Co. v. O'Leary, 9 Cir., 288 F.2d 542, 543—544.
18
Although these two cases were decided before the enactment of the Administrative Procedure Act, they are considered authoritative in defining the words 'substantial evidence' as used in the Act. 4 Davis, Administrative Law Treatise § 29.02.
19
The test of substantial evidence in the record considered as a whole had been applied by some reviewing courts even before Congress acted. See Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 483, 490, 71 S.Ct. 456, 462—466, 95 L.Ed. 456.
20
See Federal Trade Comm. v. Mary Carter Paint Co., 382 U.S. 46, 86 S.Ct. 219, 15 L.Ed.2d 128; National Labor Relations Board v. Southland Mfg. Co., 4 Cir., 201 F.2d 244, 246. These same policies are behind the 'primary jurisdiction doctrine.' Far East Conference v. United States, 342 U.S. 570, 574—575, 72 S.Ct. 492, 494—495, 96 L.Ed. 576; United States Navigation Co., Inc. v. Cunard Steamship Co., Ltd., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408. See generally, Stason, 'Substantial Evidence' in Administrative Law, 89 U.Pa.L.Rev. 1026 (1941).
21
See National Labor Relations Board v. Seven-Up Bottling Co. of Miami, Inc., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377; Securities & Exchange Comm. v. Chenery Corp., 332 U.S. 194, 207 209, 67 S.Ct. 1575, 1582—1583, 91 L.Ed. 1995; Phelps Dodge Corp v. National Labor Relations Board, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271. See also Federal Security Administrator v. Quaker Oats Co., 318 U.S. 218, 63 S.Ct. 589, 87 L.Ed. 724, where considerable deference was given the Federal Security Administrator in the promulgation of rules pursuant to the Federal Food, Drug, and Cosmetic Act.
22
See Grace Line, Inc. v. Skips A/S Viking Line, 7 F.M.C. 432. See also Johnston Seed Co. v. United States, D.C., 90 F.Supp. 358, aff'd 10 Cir., 191 F.2d 228; Boston Wool Trade Assn. v. Director General, 69 I.C.C. 282, 309, where, to avoid an award of reparations that would be inequitable, the I.C.C. and the courts found certain practices by the carriers to be unreasonable only prospectively. See also Delaware, Lackawanna & Western Coal Co. v. Delaware, Lackawanna & W.R. Co., 46 I.C.C. 506, 509.
23
The Senate Report says that the enforcement provisions in the Shipping Act 'confer upon the board power to make orders necessary for the enforcement of the act * * *.' S.Rep.No.689, 64th Cong., 1st Sess., p. 13. (Emphasis added.) Later on, the report says the board shall 'make such order as may be proper, including an award of reparation for an injury resulting from the violation.' Ibid.
24
The Court of Appeals said it is 'beyond question' that the Board considered and made sufficient findings, supported by the record, that Flota's exclusive contract with Panama Ecuador was 'unjust' and 'unreasonable.' It also said that the Board was 'entitled to conclude that neither the exclusive contract nor the request for a declaratory order rendered Flota's discriminatory refusal of space reasonable or just.' 112 U.S.App.D.C. 302, 307 308, 302 F.2d 887, 892—893.
25
It is important to distinguish this situation from one where a litigant affirmatively relies upon an agency declaration, later reversed, that specifically authorized particular behavior. See Arizona Grocery Co. v. Atchison, Topeka & Santa Fe R. Co., 284 U.S. 370, 52 S.Ct. 183, 76 L.Ed. 348.
26
Flota's operating manager in the United States testified that 'it is better to deal with one (shipper) than with three.' There is also evidence that Flota had been able to settle Panama Ecuador's claims for shipment damages on a basis of only '2.4% which is a very low percentage in comparison with the usual 15% deduction which applies to this type of transportation.'
27
Because of its disposition of this case, the Court of Appeals found it unnecessary to consider Flota's objection that counsel for the Commission, who participated in the writing of the Commission's reparation award upon remand, had violated 5 U.S.C. § 1004 (1964 ed.) because he had previously participated as Public Counsel in the trial before the Hearing Examiner on the issue of whether Flota had violated the Shipping Act (although not in the trial on the reparations issue) and had defended the Commission's finding of violation and award of reparations before the Court of Appeals in the first consolidated appeals. We have examined Flota's contention in this regard and find it without merit.
| 89
|
383 U.S. 576
86 S.Ct. 1000
16 L.Ed.2d 109
INTERSTATE COMMERCE COMMISSION, Petitioner,v.ATLANTIC COAST LINE R. CO. et al.
No. 14.
Argued Dec. 6, 1965.
Decided March 22, 1966.
Robert W. Ginnane, Washington, D.C., for petitioner.
J. Edgar McDonald, New York City, for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
This case is before the Court for a determination of when and in what proceedings a common carrier by rail may challenge an order of the Interstate Commerce Commission awarding reparations to a shipper claiming injury because of the carrier's violation of the Act.
2
A shipper, Thomson Phosphate Company, filed a complaint with the Commission alleging that certain rates charged by respondent railroads were unjust and unreasonable and seeking reimbursement of those transportation charges to the extent they were unlawful. Interstate Commerce Act §§ 8 and 9, 24 Stat. 382, as amended, 49 U.S.C. §§ 8 and 9 (1964 ed.) The Commission sustained the complaint and issued a report finding that the assailed rates were unjust and unreasonable and that the shipper was entitled to reparations. Thomson Phosphate Co. v. Atlantic Coast Line R. Co., 303 I.C.C. 25 (Div. 2, 1958). When respondents refused to certify the shipper's statements showing the shipments made during the period involved, the Commission reopened the proceeding for a determination of the amount of reparations due. After such additional proceedings, the Commission found Thomson was entitled to reparations of $8,889.76 with interest, and an order was entered authorizing and directing respondents to pay such sum by a specified date, later amended to August 28, 1961. 311 I.C.C. 315. Respondents refused to comply with the order and brought suit in the United States District Court for the Middle District of Florida under § 17(9) of the Interstate Commerce Act, 24 Stat. 385, as amended, 49 U.S.C. § 17(9), and 28 U.S.C. §§ 1336 and 1398 (1964 ed.) to enjoin, set aside, and annul the orders of the Commission. Respondents claimed, inter alia, that the Commission erred in finding the rates unreasonable and in not finding Thomson's claims barred by the Act's limitation provision, Interstate Commerce Act § 16(3), 24 Stat. 384, as amended, 49 U.S.C. § 16(3) (1964 ed.) Thomson, which was not a party to the carriers' action, filed in the Southern District of New York a suit against respondents and other railroads to enforce the Commission's reparation award pursuant to § 16(2) of the Interstate Commerce Act, 49 U.S.C. § 16(2) (1964 ed.). By stipulation, the New York case has been held in abeyance pending the outcome of the Florida case, which is presently before this Court.
3
The Commission moved to dismiss the carriers' injunction action, contending that reparation orders are not reviewable in such a suit and that the carriers were required to await the shipper's enforcement action to attack the Commission's order. The Florida District Court denied the motion to dismiss and, on the merits, held that Thomson's claims were barred by limitations. 213 F.Supp. 199. The sole issue raised on appeal was whether the District Court had jurisdiction. The Court of Appeals affirmed, sustaining the jurisdiction of the Florida District Court. 334 F.2d 46. We granted certiorari because of the importance of this question in the administration of the Act. 379 U.S. 957, 85 S.Ct. 658, 13 L.Ed.2d 553. We reverse and hold that when the Commission issues a reparation order, not accompanied by a cease-and-desist order, a carrier may obtain review of the Commission's order only in the court where the shipper commences its enforcement action—or where the shipper seeks review of the Commission's order, see Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 86 S.Ct. 1018.
I.
4
The Interstate Commerce Act contains detailed provisions governing the presentation and adjudication of claims for reparations. Section 8 is the basic provision creating liability and declares that any common carrier by rail which violates the Act 'shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation * * *.' By § 9, the complainant is given the alternatives of seeking such damages by complaint to the Commission, under the procedures established by § 13(1), or of bringing suit in a federal disctrict court. But the primary jurisdiction doctrine requires initial submission to the Commission of questions that raise 'issues of transportation policy which ought to be considered by the Commission in the interests of a uniform and expert administration of the regulatory scheme laid down by (the) Act.' United States v. Western Pac. R. Co., 352 U.S. 59, 65, 77 S.Ct. 161, 166, 1 L.Ed.2d 126; Texas & Pac. R. Co. v. American Tie & Timber Co., 234 U.S. 138, 34 S.Ct. 885, 58 L.Ed. 1255. Accordingly, a shipper who commences his § 9 reparation proceeding in the District Court will nevertheless be required to repair to the Commission for decision of issues, like the reasonableness of rates, which call the primary jurisdiction doctrine into play. When that occurs, the court ordering the reference of such issues to the Commission has exclusive jurisdiction of any civil action to enforce, enjoin, set aside, or annul a Commission order arising out of the referral, 28 U.S.C. § 1336(b) (1964 ed.), such action to be brought within 90 days of the entry of the Commission's final order, 28 U.S.C. § 1336(c) (1964 ed.).
5
Our concern here, however, is with the alternative procedure provided in § 9, which involves an initial complaint before the Commission and culminates in the § 16(2) suit to enforce the Commission's reparation award. Section 16(1) provides that if the Commission determines the complainant is entitled to reparations it 'shall make an order directing the carrier to pay to the complainant the sum to which he is entitled on or before a day named.' If the carrier fails to comply with the order by the designated time, the shipper then has the right under § 16(2) to file suit in either federal or state court to enforce the Commission's reparation award. Moreover, Congress has provided that in such a suit the shipper is to have certain procedural advantages designed to discourage 'harassing resistance by a carrier to (the) reparation order.' St. Louis & S.F.R. Co. v. Spiller, 275 U.S. 156, 159, 48 S.Ct. 96, 97, 72 L.Ed. 214; see also Meeker & Co. v. Lehigh Valley R. Co., 236 U.S. 412, 433, 35 S.Ct. 328, 336, 59 L.Ed. 644; Baldwin v. Scott County Milling Co., 307 U.S. 478, 59 S.Ct. 943, 83 L.Ed. 1409. The shipper has a broad choice of venue. If the suit is brought in a federal court, see Lewis-Simas-Jones Co. v. Southern Pac. Co., 283 U.S. 654, 661, 51 S.Ct. 592, 595, 75 L.Ed. 1333, the shipper is free from liability for costs, except as they accrue on its appeal, and it may introduce at trial the findings and order of the Commission, which 'shall be prima facie evidence of the facts therein stated. * * *' In addition, the shipper is to be allowed a reasonable attorney's fee if it prevails, an advantage also accorded under § 8 to shippers who elect to proceed in court in the first instance.1
6
The Interstate Commerce Act likewise contains general provision for judicial review of Commission orders. Section 17(9) provides that after an application for rehearing, reargument, or reconsideration has been denied or otherwise disposed of, a suit may be brought to enforce, enjoin, suspend, or set aside the Commission decision, order or requirement.2
7
Jurisdiction of both § 16(2) and § 17(9) suits is vested in the federal district courts by 28 U.S.C. § 1336(a) (1964 ed.). Venue is determined by 28 U.S.C. § 1398(a) (1964 ed.), which, '(e)xcept as otherwise provided by law,' limits suits to the judicial district where the party bringing the action has his residence or principal office. But because of the quoted exception, this venue restriction does not apply to suits commenced pursuant to § 16(2), as that section contains its own venue provision.
8
Procedures for review of Commission orders 'other than for the payment of money,' see 28 U.S.C. § 2321 (1964 ed.), are governed by 28 U.S.C. §§ 2321—2325 (1964 ed.). Such actions must be brought by or against the United States, § 2322; the Commission and parties in interest appearing before the Commission may intervene as of right, § 2323; and no interlocutory or permanent injunction restraining enforcement of a Commission order may be granted unless the application is heard and determined by a three-judge district court, § 2325,3 with direct review here, 28 U.S.C. § 1253 (1964 ed.). In United States v. Interstate Commerce Comm., 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451, however, this Court held that Commission orders which determine in a reparation proceeding that assailed rates are unlawful but do not direct the carrier to cease and desist charging such rates, becuase the rates have been discontinued, 'are not of sufficient public importance to justify the accelerated judicial review procedure,' 337 U.S., at 442, 69 S.Ct., at 1419. Thus, though the procedures set out in 28 U.S.C. §§ 2321—2325 (1964 ed.) otherwise govern § 17(9) proceedings to review such orders, § 2325 is not applicable and the matter may be adjudicated by a single judge. Because § 16(2) actions seek enforcement of an order 'for the payment of money,' the above-described procedures do not apply. Section 16(2) directs that actions thereunder 'shall proceed in all respects like other civil suits for damages,' with the exception of the special procedural advantages accorded the shipper to which we have previously referred.
II.
9
From the foregoing summary it will be observed that § 16(2) actions for enforcement of Commission reparation awards and § 17(9) actions to set aside Commission orders are quite distinct proceedings, with different venue restrictions and different procedures. Moreover, Congress conferred certain procedural advantages on shippers bringing § 16(2) actions that may well be lost or impaired if carriers may attack the Commission's order in a direct review proceeding pursuant to § 17(9). Accordingly, we are asked to harmonize the language and purposes of the two provisions.4
10
At the outset, however, it should be emphasized that we are here concerned with a narrow, though important, category of cases. First, it is conceded that if the Commission's reparation order is accompanied by a cease-and-desist order, as it usually will be when the proceeding originates before the Commission and the rates or practices under attack continue in use, the carrier may obtain immediate review of the cease-and-desist order pursuant to § 17(9); and such review will ordinarily determine the validity of the finding of statutory violation on which the reparation order is founded. A Commission cease-and-desist order respecting rates and charges, for example, which may be issued pursuant to the authority granted by § 15(1) to prescribe just and reasonable rates, subjects the carrier to $5,000 per day penalties for non-compliance, 49 U.S.C. § 16(8) (1964 ed.), and is typical of orders reviewed in suits to set aside Commission orders since the first such suit, Stickney v. Interstate Commerce Comm., 164 F. 638 (C.C.D.Minn.), aff'd, 215 U.S. 98, 30 S.Ct. 66, 54 L.Ed. 112; see also Interstate Commerce Comm. v. Delaware, L. & W.R. Co., 220 U.S. 235, 31 S.Ct. 392, 55 L.Ed. 448; United States v. Interstate Commerce Comm., 337 U.S. 426, 454, 69 S.Ct. 1410, 1425, 93 L.Ed. 1451 (Frankfurter, J., dissenting). Second, even when a cease-and-desist order is not joined with the reparation order, the latter order will be subject to direct review when no other means of securing review is available, regardless of whether review is sought by a shipper, United States v. Interstate Commerce Comm., 337 U.S. 426, 69 S.Ct. 1410; Consolo v. Federal Maritime Comm., 383 U.S. 607, 86 S.Ct. 1018, or the carrier, Pennsylvania R. Co. v. United States, 363 U.S. 202, 80 S.Ct. 1131, 4 L.Ed.2d 1165. In the cited cases the party seeking review could not obtain such review in a § 16(2) suit, either directly or through interposition of a defense.
11
Thus in United States v. Interstate Commerce Comm., supra, the Government filed with the Commission a complaint seeking reparations, but the Commission found the assailed charges did not violate the Act and dismissed the complaint. As there was no award upon which to base a § 16(2) suit, the United States would have been denied all review had jurisdiction of the § 17(9) action not been sustained. Similarly, in Consolo v. Federal Maritime Comm., 383 U.S. 607, 86 S.Ct. 1018, we hold that a shipper may challenge in a direct review proceeding the adequacy of a reparation award, such a challenge being one that could not be pressed in an enforcement action, see Baltimore & Ohio R. Co. v. Brady, 288 U.S. 448, 457—458, 53 S.Ct. 441, 443, 77 L.Ed. 888; D. L. Piazza Co. v. West Coast Line, 210 F.2d 947 (C.A.2d Cir. 1954), cert. denied, 348 U.S. 839, 75 S.Ct. 42, 99 L.Ed. 661.
12
Pennsylvania R. Co. v. United States, supra, involved a suit by a carrier in the Court of Claims to collect the charges due under its tariff. The United States defended on the ground that the rates were unreasonable, and the Court of Claims referred that issue to the Commission pursuant to the primary jurisdiction doctrine, United States v. Western Pac. R. Co., 352 U.S. 59, 62 70, 77 S.Ct. 161, 164—168, 1 L.Ed.2d 126. The Commission found certain rates unjust and unreasonable, without ordering reparations or issuing a cease-and-desist order, and the carrier filed a § 17(9) suit in federal district court to set the order aside. On review of the Court of Claims' refusal to further suspend its proceedings pending the District Court action, this Court held that the carrier was entitled to judicial review of the Commission order, that the Court of Claims had no jurisdiction to afford such review, and that the Court of Claims should therefore have suspended its proceedings. Because of the holding that the Court of Claims could not review the Commission order, failure to sustain the District Court's jurisdiction of the carrier's § 17(9) action would again have precluded judicial review.
13
The essential question in this case is the extent to which United States v. Interstate Commerce Comm. and Pennsylvania R. Co. v. United States, compel allowance of respondents' direct review action. The Commission asks us to limit those cases to their facts situations where judicial review would not have been available if the § 17(9) suit was not permitted. It argues that sufficient opportunity to obtain review of the Commission's finding that a statutory violation has occurred is afforded respondents by their right to challenge that determination in defense of Thomson's § 16(2) action to enforce the reparation award. If jurisdiction to review in a § 17(9) suit should be sustained, the Commission further contends, shippers will be deprived of many of the advantages bestowed by § 16(2). And the historical development of § 16(2) and the direct review proceeding is said to establish that Congress did not contemplate that the carrier could obtain direct review in a case like that at bar and thereby short-circuit the shipper's suit. Finally, the Commission urges that in reparation cases where the assailed rates are no longer in effect and no cease-and-desist order issues the Commission's order has little continuing or general significance but is comparable to an adjudication in a private damages action of interest only to the parties involved; therefore, it is appropriate for the order to be defended by the shipper, who is in effect compensated for such defense by the procedural advantages accorded by § 16(2), rather than by the United States and the Commission.
14
Respondents argue that, to the contrary, past practice and the decisions of this Court establish that the exclusive method of reviewing Commission findings that a statutory violation has occurred5 is through a § 17(9) proceeding and that such a finding may not be challenged and is not open to review in a § 16(2) action. Respondents also argue that limiting review to the § 16(2) proceeding would result in disparate treatment of shippers, through conflicting decisions in enforcement suits, and would thus violate the Act's cardinal principle of uniformity of rates.
15
As will appear more fully below, we take a middle course. We conclude that carriers may obtain full review by defending the § 16(2) action and that the policy underlying that section precludes the carriers from obtaining review in a forum other than that chosen by the shipper. But we find no obstacle to the carriers' bringing a § 17(9) cross-proceeding in the forum selected by the shipper, should they so desire.
III.
16
A threshold question is raised by respondents' contention that the statutory violation issue is not open to review in a § 16(2) enforcement action, the Commission's finding being conclusive on the enforcement court unless set aside in a § 17(9) proceeding. If respondents are correct on this point, their § 17(9) action must be allowed under even the Commission's interpretation of United States v. Interstate Commerce Comm., 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451, and Pennsylvania R. Co. v. United States, 363 U.S. 202, 80 S.Ct. 1131, 4 L.Ed.2d 1165.
17
To support their view of the scope of review in the enforcement action, respondents refer principally to Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U.S. 247, 33 S.Ct. 916, 57 L.Ed. 1472. In that case, a shipper commenced its reparation suit under §§ 8 and 9 in a federal district court. This Court held that since the dispute raised 'administrative' questions concerning the reasonableness of rates, the primary jurisdiction doctrine required the shipper to proceed first before the Commission. Regarding the weight to be accorded the Commission's resulting order, the Court said:
18
'Such orders, so far as they are administrative are conclusive, whether they relate to past or present rates, and can be given general and uniform operation, since all shippers who have been or may be affected by the rate can take advantage of the ruling and avail themselves of the reparation order. They are quasi judicial and only prima facie correct in so far as they determine the fact and amount of damage,—as to which, since it involves the payment of money and taking of property, the carrier is, by § 16 of the act, given its day in court and the right to a judicial hearing * * *.' 230 U.S., at 258, 33 S.Ct., at 921.
19
Accord, Morrisdale Coal Co. v. Pennsylvania R. Co., 230 U.S. 304, 33 S.Ct. 938, 57 L.Ed. 1494.
20
The prima facie evidence provision in § 16(2), however, draws no express distinction between administrative and quasi-judicial findings of the Commission, and we said of that provision in Meeker & Co. v. Lehigh Valley R. Co., 236 U.S. 412, 430, 35 S.Ct. 328, 335, 59 L.Ed. 644, that '(i)t cuts off no defense (and) interposes no obstacle to a full contestation of all the issues * * *.' See also United States v. Interstate Commerce Comm., 337 U.S. 426, 435, 69 S.Ct. 1410, 1416, 93 L.Ed. 1451 (§ 16(2) proceedings afford 'railroads complete judicial review of adverse reparation orders'). Moreover, in one of the earliest cases under the Hepburn Act, the Court reviewed the question of statutory violation in a § 16(2) case, concluded that the legal theory applied by the Commission was erroneous, and set aside the Commission's determination that the disputed rates were unreasonable. Southern R. Co. v. St. Louis Hay & Grain Co., 214 U.S. 297, 29 S.Ct. 678, 53 L.Ed. 1004. See also Arizona Grocery Co. v. Atchison, T. & S.F.R. Co., 284 U.S. 370, 52 S.Ct. 183, 76 L.Ed. 348. The seemingly contradictory statements in the contemporaneous Mitchell Coal and Meeker decisions require explanation, which we believe can be found in the general course of decisions in that era respecting the scope of review of Commission orders.
21
From our brief re sume of the Court's opinion in Mitchell Coal it should be immediately apparent that the case did not, strictly speaking, require the determination of the scope of judicial review in § 16(2) enforcement actions. The proceeding under review had been commenced in court pursuant to § 9 rather than § 16 and no Commission order had yet been entered. The question directly in issue concerned the applicability of the primary jurisdiction doctrine to cases involving discontinued, rather than present, rates.
22
Initially formulated in cases arising under the Interstate Commerce Act, the primary jurisdiction doctrine was premised in the early cases on the policy of the Act of assuring uniform rates. The Court reasoned that many questions arising under the Act, such as whether rates were unreasonable or discriminatory, were essentially questions of fact particularly appropriate for determination by an expert Commission. If shippers could challenge the filed rates by proceedings before a court, without prior resort to the Commission, different conclusions might be reached by different courts; and the prevailing shippers would thereby obtain a rate preference as compared to unsuccessful shippers, which would violate the principle of uniform rates. See, e.g., Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 440—441, 27 S.Ct. 350, 355, 51 L.Ed. 553; Baltimore & Ohio R. Co. v. United States ex rel. Pitcairn Coal Co., 215 U.S. 481, 493—495, 30 S.Ct. 164, 169—170, 54 L.Ed. 292; Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U.S. 247, 255—260, 33 S.Ct. 916, 919—922, 57 L.Ed. 1472. Of course a preliminary determination by the Commission would have little effect in achieving uniformity if its determination were subject to de novo review, and it was for that reason that the Court pointed out in Mitchell Coal the 'conclusive' effect that would be accorded 'administrative' findings of the Commission in any ensuing § 16 action.
23
But other decisions rendered by the Court during the same period indicate that it was not only in § 16 proceedings that the Commission findings would be conclusive, in the sense the Court was actually using that term. Under the original Act, failure to comply with any order of the Commission did not in itself entail any penalty. Commission orders were judicially enforceable at the instance of the Commission or any party in interest, and the Act provided that in an enforcement action 'the findings of fact in the report of said Commission shall be prima facie evidence of the matters therein stated.' Interstate Commerce Act, § 16, 24 Stat. 384 (1887), as amended, 25 Stat. 860 (1889). Though retaining the prima facie evidence provision for actions on reparation awards, the Hepburn Act of 1906 included no provision respecting the weight to be given Commission findings in nonreparation cases. Section 15 of the amended Act, however, made Commission orders, except orders for the payment of money, self-enforcing for purposes of incurring liability for penalties for noncompliance, unless such orders had been suspended or set aside by a court of competent jurisdiction. In Interstate Commerce Comm. v. Illionis Central R. Co., 215 U.S. 452, 30 S.Ct. 155, 54 L.Ed. 280, a suit to set aside a cease-and-desist order, the changes effected by the Hepburn Act in making Commission orders self-enforcing were interpreted as reducing the scope of judicial review from that prevailing when Commission orders were only prima facie evidence. The Court stated it could consider whether the Commission action exceeded constitutional power or right, whether the administrative order was within the scope of authority delegated, and whether the exercise of authority was reasonable, but it could not 'usurp merely administrative functions by setting aside a lawful administrative order upon our conception as to whether the administrative power has been wisely exercised. Power to make the order, and not the mere expediency or wisdom of having made it, is the question.' 215 U.S., at 470, 30 S.Ct., at 160. Through frequent repetition, see Interstate Commerce Comm v. Union Pac. R. Co., 222 U.S. 541, 547—548, 32 S.Ct. 108, 110—111, 56 L.Ed. 308; Procter & Gamble Co. v. United States, 225 U.S. 282, 297—298, 32 S.Ct. 761, 766—767, 56 L.Ed. 1091, the principles elaborated in Illinois Central gradually became restated as a doctrine 'that the findings of the Commission were made not merely prima facie but conclusively correct in case of judicial review, except to the extent pointed out in the Illinois Central and other cases * * *,' United States v. Louisville & Nashville R. Co., 235 U.S. 314, 320, 35 S.Ct. 113, 114, 59 L.Ed. 245. Accord, Central R. Co. of New Jersey v. United States, 257 U.S. 247, 256—257, 42 S.Ct. 80, 81—82, 66 L.Ed. 217; United States v. Illinois Central R. Co., 263 U.S. 515, 525—526, 44 S.Ct. 189, 193—194, 68 L.Ed. 417 and n. 7. See generally, Rochester Tel. Corp. v. United States, 307 U.S. 125, 139—140, 59 S.Ct. 754, 761—762, 83 L.Ed. 1147. By a parallel development, the Court placed increasing reliance in primary jurisdiction cases on the 'conclusive' effect of Commission orders as a factor demonstrating that the requirement of preliminary resort to the Commission on administrative questions would indeed further the statutory policy of uniform treatment. Compare Baltimore & Ohio R. Co. v. United States ex rel. Pitcairn Cocal Co., 215 U.S. 481, 494, 30 S.Ct. 164, 169, 54 L.Ed. 292, with Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U.S. 247, 258, 33 S.Ct. 916, 921, 57 L.Ed. 1472, quoted, supra, p. 590.
24
When Mitchell Coal and Meeker are read together against the background of the Illinois Central and Louisville & Nashville cases it becomes clear that Commission orders are fully reviewable in § 16(2) suits, but Commission findings on questions required under the primary jurisdiction doctrine to be determined first by the Commission are conclusive in the same sense that such findings would be conclusive in suits to set aside the Commission's order. That is, findings on primary jurisdiction issues are to be reviewed by the Court on the administrative record under the familiar standards elaborated in direct review proceedings, while findings on other questions are subject to review under the prima facie evidence provision of § 16(2), with the statutory rights of introducing evidence not before the Commission and obtaining a jury determination of disputed issues of fact.6 Such an interpretation of § 16(2)'s prima facie evidence provision is required if that provision is to be consonant with the primary jurisdiction doctrine. That interpretation seems to have been applied by the Court in Pennsylvania R. Co. v. Weber, 257 U.S. 85, 90—91, 42 S.Ct. 18, 20, 66 L.Ed. 141; Louisville & Nashville R. Co. v. Sloss-Sheffield Steel & Iron Co., 269 U.S. 217, 46 S.Ct. 73, 70 L.Ed. 242; News Syndicate Co. v. New York Central R. Co., 275 U.S. 179, 48 S.Ct. 39, 72 L.Ed. 225; Adams v. Mills, 286 U.S. 397, 409—410, 52 S.Ct. 589, 592—593, 76 L.Ed. 1184.7 It is urged in the present case by the Commission and in a companion case by the Federal Maritime Commission, was accepted by the court below, 334 F.2d, at 49, n. 12, and has been applied by several other lower federal courts, New Process Gear Corp. v. New York Central R. Co., 250 F.2d 569, 571—572 (C.A.2d Cir. 1957), cert. denied, 356 U.S. 959, 78 S.Ct. 996, 2 L.Ed.2d 1066; Midland Valley R. Co. v. Excelsior Coal Co., 86 F.2d 177, 181—182 (C.A.8th Cir. 1936); Baltimore & O.R. Co. v. Brady, 61 F.2d 242, 246, 248 (C.A.4th Cir. 1932), rev'd on other grounds, 288 U.S. 448, 53 S.Ct. 441, 77 L.Ed. 888; City of Danville v. Chesapeake & O.R. Co., 34 F.Supp. 620, 625, 627—628 (D.C.W.D.Va.1940); Hillsdale Coal & Coke Co. v. Pennsylvania R. Co., 237 F. 272, 275 (D.C.E.D.Pa.1916). We adhere to that interpretation now.
IV.
25
Having established that the carrier has ample opportunity to secure review in the enforcement action, we must now consider whether affording the carrier the alternative of bringing direct review proceedings pursuant to § 17(9) would vitiate the congressional policy expressed in § 16(2) of encouraging prompt payment of reparation awards. To effectuate that policy, Congress has provided for the shipper certain procedural and substantive benefits pertaining to venue, freedom from costs, prima facie effect of the Commission's order, and allowance of a reasonable attorney's fee. The Commission contends that permitting the carrier to bring direct review proceedings will materially impair the benefits derived by the shipper from the procedural dispensations of § 16(2). We conclude that although the degree of impairment would be less than that claimed by the Commission, it would neverthless be substantial.
26
The Commission argument respecting venue, which we accept, proceeds as follows: Because the carrier may bring its § 17(9) action as soon as the final Commission order is entered but the shipper's § 16(2) suit must await passage of the date set for compliance, the carrier may file its suit first and thus obtain priority. Although the carrier's suit must be brought against the United States, 28 U.S.C. § 2322 (1964 ed.), the Commission and the shipper may intervene as of right, 28 U.S.C. § 2323 (1964 ed.), and the shipper will be under compulsion to do so to protect its interest since a decision setting aside the Commission's order would destroy the foundation of the enforcement action. In this way, the shipper will frequently be denied his choice of forum on the statutory violation issue as the § 17(9) suit must be brought in the judicial district of the residence or principal office of the party bringing the suit, 28 U.S.C. § 1398(a), which may be far removed from the district in which the shipper resides or through which the road of the carrier runs—alternatives that are open to the shipper under § 16(2) and, being likely to offer a more convenient venue to the shipper, would frequently be the shipper's choice.
27
By a similar analysis the Commission also contends that a shipper forced to intervene in the carrier's § 17(9) action would lose the advantages of freedom from costs and the right to a reasonable attorney's fee, since those rights are conferred only in the § 16(2) action and not in § 17(9) actions. But since both the § 16(2) action and the § 17(9) action may be heard and determined by a single district judge when the reparation order is not accompanied by a cease-and-desist order, United States v. Interstate Commerce Comm., 337 U.S. 426, 440—443, 69 S.Ct. 1410, 1418—1420, 93 L.Ed. 1451; Pennsylvania R. Co. v. United States, 363 U.S. 202, 80 S.Ct. 1131, 4 L.Ed.2d 1165, it would be possible, apart from venue problems,8 for the shipper to press its action in the same district as the carrier's action, either by an independent action to be consolidated with the carrier's action, Fed.Rule Civ.Proc. 42(a), or by a counterclaim after intervention in the carrier's action, see Switzer Bros., Inc. v. Locklin, 207 F.2d 483 (C.A.7th Cir. 1953); 3 Moore, Federal Practice 13.05 (2d ed. 1964), 4 Moore, Federal Practice 24.17 (2d ed. 1963). Then to the extent that the shipper's costs and attorney's fees were attributable to its § 16(2) counterclaim or action the § 16(2) advantages would clearly be applicable. And it would be arguable—an issue we do not decide—that the shipper would be entitled to the benefit of § 16(2) as to all its costs and attorney's fees in the combined action.
28
Since the Commission believes that the scope of review of findings on primary jurisdiction issues would be the same regardless of whether review was sought in a § 16(2) or a § 17(9) action, it makes no claim that allowance of the direct review proceeding would undercut the prima facie evidence provision of § 16(2).
29
In summary, the principal, if not sole, effect of permitting respondents' direct review proceeding would be to force on shippers the alternatives of either forgoing the opportunity to defend the Commission order or accepting the carrier's choice of a distant venue. The first alternative is obviously counter to the policy expressed in § 16(2), and, as we have said, it is to be expected that shippers would elect to defend the Commission's order even at the expense of loss of their venue advantage. The importance of choice of venue in these actions should not be discounted. Since the record in the enforcement action is not limited to that made before the Commission, the shipper may desire to call witnesses or to introduce documentary evidence either in direct support of the Commission's order or in rebuttal to opposing evidence produced by the carrier, thus bringing into play those factors relating to the convenience of witnesses and the relative burden of making proof that make the choice of venue so important in other contexts. See Mercantile National Bank at Dallas v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523; Schnell v. Peter Eckrich & Sons, Inc., 365 U.S. 260, 81 S.Ct. 557, 5 L.Ed.2d 546.
V.
30
But respondents contend that confining review to the enforcement action would introduce into the administration of the Act problems of greater severity and importance than any effect such a course might have in safeguarding the shipper's § 16(2) privileges. Respondents note that under the doctrine of Phillips Co. v. Grand Trunk Western R. Co., 236 U.S. 662, 35 S.Ct. 444, 59 L.Ed. 774, shippers who are not complainants before the Commission may nevertheless obtain the advantage of the Commission's reparation order as a basis for their own § 16(2) action. It is argued that the enforcement court has no power to set aside the Commission order and, therefore, a decision upholding a carrier's attack on the Commission's order in one enforcement proceeding would not preclude another shipper from successfully invoking that order in a separate enforcement proceeding, thus resulting in disparate treatment of shippers contrary to the Act's objective of securing uniform rates.
31
It is of course true that the court may not formally set aside the Commission's order in an action in which neither the Commission nor the United States is a party. Cf. United States v. Jones, 336 U.S. 641, 651—653, 670—671, 69 S.Ct. 787, 793—794, 802 803, 93 L.Ed. 938; Pennsylvania R. Co. v. United States, 363 U.S. 202, 205, 80 S.Ct. 1131, 1133, 4 L.Ed.2d 1165. But we do not read Phillips Co. v. Grand Trunk Western R. Co., supra, to permit reliance by a nonparticipating shipper on the Commission's order when it has been disapproved in litigation between the compainant shipper and the railroad. In the Phillips case, the Commission had separately determined that challenged rates were unlawful and had issued a cease-and-desist order, which was sustained in an enforcement proceeding brought by the Commission. Illinois Central R. Co. v. Interstate Commerce Comm., 206 U.S. 441, 27 S.Ct. 700, 51 L.Ed. 1128. Thereafter, some reparation claims were settled, and Phillips, which had not been a complainant before the Commission, commenced its reparation action. The Court reasoned that if Phillips could not rely on the Commission order, shippers prevailing before the Commission would obtain a preference as compared to nonparticipating shippers. Therefore, the Court ruled that if:
32
'there was a finding of unreasonableness in the proceedings begun by others, (the nonparticipating shipper) could, if in time, present his claim, and await the result of the litigation over the validity of any order made at the instance of those parties. If it was ultimately sustained by the court as valid, he would then be in position to obtain reparation from the Commission—or a judgment from a court of competent jurisdiction, on a claim that had been seasonably presented.' 236 U.S., at 666, 35 S.Ct., at 445.
33
The Phillips case thus contemplates that the suit of a nonparticipating shipper is to await the outcome of litigation over the validity of the Commission order and that the nonparticipating shipper may rely on the Commission's order only when the policy of uniformity will thereby be served.
34
It might still be argued that disparity in treatment of shippers would result in cases involving multiple complainants before the Commission. The several shippers could commence separate enforcement actions in different courts, and those courts might disagree concerning the validity of the Commission's order. But such conflicts could be completely avoided only by limiting review on the question of statutory violation to a single suit by a carrier to set aside the Commission's order, and the long and unvarying course of decisions permitting review in the enforcement court precludes our limiting review to § 17(9) proceedings. Southern R. Co. v. St. Louis Hay & Grain Co., 214 U.S. 297, 29 S.Ct. 678, 53 L.Ed. 1004; Arizona Grocery Co. v. Atchison, T. & S.F.R. Co., 284 U.S. 370, 52 S.Ct. 183, 76 L.Ed. 348; Adams v. Mills, 286 U.S. 397, 52 S.Ct. 589, 76 L.Ed. 1184; W. P. Brown & Sons Lumber Co. v. Louisville & N.R. Co., 299 U.S. 393, 57 S.Ct. 265, 81 L.Ed. 301; H. K. Porter Co. v. Central Vermont Railway, Inc., 366 U.S. 272, 274, 81 S.Ct. 1341, 1342, 6 L.Ed.2d 284 n. 6 (dictum). In any event, we do not believe that in practice such conflicts will frequently occur. If the first enforcement court to issue its decision sustains the Commission order, that decision will generally be accepted as persuasive authority by other courts. Such conflicts as do occur will be similar to those that may arise when, in a suit commenced in court under § 9, the primary jurisdiction doctrine is not applicable and the court is free to decide questions under the Act as an original matter; and such conflicts may ultimately be resolved here. If the first court to reach a decision strikes down the Commission order, it may do so on grounds permitting reconsideration of the matter by the Commission. When the primary jurisdiction doctrine requires initial decision by the Commission, it also precludes the court from redetermining the question itself should the Commission decision be defective. The proper course is to remand to the Commission, Southern R. Co. v. St. Louis Hay & Grain Co., 214 U.S. 297, 302, 29 S.Ct. 678, 680, 53 L.Ed. 1004; Louisville & Nashville R. Co. v. Behlmer, 175 U.S. 648, 20 S.Ct. 209, 44 L.Ed. 309; compare United States v. Jones, 336 U.S. 641, 651—653, 670—671, 69 S.Ct. 787, 793—794, 802—803, 93 L.Ed. 938, with United States v. Carlo Bianchi & Co., 373 U.S. 709, 718, 83 S.Ct. 1409, 1415, 10 L.Ed.2d 652, which has continuing power to suspend or to modify its orders, Interstate Commerce Act § 16(6), 49 U.S.C. § 16(6) (1964 ed.). The carrier will naturally request the Commission to reopen the prior order as to all shippers. See Baldwin v. Scott County Milling Co., 307 U.S. 478, 59 S.Ct. 943, 83 L.Ed. 1409; but cf. Gulf, M. & N.R. Co. v. Merchants' Specialty Co., 50 F.2d 21 (C.A.5th Cir. 1931). In some cases, however, a decision refusing to enforce the Commission's order will finally determine its validity as between the parties to that action without any necessity for a remand to the Commission. Here too the first adjudication will generally be persuasive and, if not, conflicting decisions may be reviewed in this Court. Finally, under the interpretation of §§ 16(2) and 17(9) that we elaborate below the carrier may bring a direct review proceeding as a cross-action in the forum selected by a shipper, thus ensuring that the court will have power to affect the order itself and thereby maintain uniformity as between shippers.
VI.
35
Recent decisions of this Court have recognized that Commission orders determining a 'right or obligation' so that 'legal consequences' will flow therefrom are judicially reviewable. Pennsylvania R. Co. v. United States, 363 U.S. 202, 205, 80 S.Ct. 1131, 1133, 4 L.Ed.2d 1165; Rochester Telephone Corp. v. United States, 307 U.S. 125, 131, 132, 143, 59 S.Ct. 754, 757, 758, 763, 83 L.Ed. 1147. Such review 'is equally available whether a Commission order relates to past or future rates, or whether its proceeding follows referral by a court or originates with the Commission.' Pennsylvania R. Co. v. United States, supra, 363 U.S., at 205, 80 S.Ct., at 1133. Under these established principles the order attacked in this case is unquestionably subject to review, and in Pennsylvania R. Co. v. United States, supra, and United States v. Interstate Commerce Comm., 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451, similar orders were held reviewable in direct proceedings.
36
The question before us now, however, is not whether review is to be afforded but where that review is to occur. In the three preceding sections of this opinion we have established three conclusions that must serve as guideposts for our decision of that question. First, respondents have ample opportunity to secure review of the Commission's order through defense of the shipper's enforcement action. By contrast, the Pennsylvania R. Co. and Interstate Commerce Comm. cases dealt with situations where the order in dispute could only be reviewed in § 17(9) proceedings, and those cases thus do not control decision here. Second, allowing respondents the alternative of bringing direct review proceedings would substantially impair the shipper's § 16(2) right to select a convenient venue. Third, contrary to respondents' contention, limiting review to the enforcement action would not be likely to result in disparity in treatment of shippers. If, therefore, review can be limited to the enforcement forum selected by the shipper consistent with the language and history of the provisions establishing the direct review proceeding, we should adopt that course.
37
During the first 19 years of the Commission's existence its orders were not reviewable through direct proceedings. Until 1906, noncompliance with a Commission order did not expose a carrier to immediate sanctions; an order was enforceable only after judicial proceedings in which the carrier could challenge its validity. The Hepburn Act imposed penalties of $5,000 a day for violation of Commission orders and '(t)he statutory jurisdiction to enjoin and set aside an order was granted in 1906, because then, for the first time, the ratemaking power was conferred upon the Commission, and then disobedience of its orders was first made punishable,' United States v. Los Angeles & S.L.R. Co., 273 U.S. 299, 309, 47 S.Ct. 413, 414, 71 L.Ed. 651; see also 40 Cong.Rec. 5133 (remarks of Senator Foraker). Thus the genesis of the direct review procedding was the desire to afford an injunctive remedy for persons faced with the threat of irreparable injury through exposure to liability for mounting penalties without any other opportunity for judicial review until the Commission or some interested party should choose to commence enforcement proceedings. Compare Ex parte Young, 209 U.S. 123, 147—148, 28 S.Ct. 441, 448—449, 52 L.Ed. 714. The essentially equitable nature of the direct review proceeding was remarked in early cases denying review of 'negative orders' that did not command any action by the carrier and therefore did not threaten the carrier with any sanctions. Compare United States v. Los Angeles R. Co., 273 U.S. 299, 47 S.Ct. 413, 71 L.Ed. 651, with Rochester Tel. Corp. v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147. Similarly, as the per diem penalties do not apply to noncompliance with orders for the payment of money, two of the three courts to have considered the issue presented in the case at bar denied carriers direct review on the ground that no equitable cause of action had been stated. Pittsburgh & W.V.R. Co. v. United States, 6 F.2d 646, 648—649 (D.C.W.D.Pa.1924); Baltimore & O.R. Co. v. United States, 12 F.Supp. 261, 263 (D.C.D.Del.1935), appeal dismissed, 87 F.2d 605 (C.A.3d Cir. 1937); contra, Southern R. Co. v. United States, 193 F. 664 (Commerce Ct. 1911). And decisions sustaining direct review of reparation orders have stressed the absence of alternative means for obtaining review—in equity terms, inadequacy of remedies at law. See, supra, at pp. 587—588.
38
As the principles stated at the beginning of this section demonstrate, the test of reviewability is no longer pregnant with the concept of irreparable injury to the same extent as when the negative order doctrine held sway, and we do not mean to resurrect the strict equity approach. This history nevertheless establishes that the main concern of Congress in creating the direct review proceeding was with orders that were 'self-enforcing' in the sense of exposing recalcitrant carriers to substantial monetary penalties. The legislative history permits absolutely no inference that Congress intended to undercut the shipper's remedies in the enforcement action. To the contrary, the Hepburn Act simplified those enforcement procedures so as to provide additional assistance to shippers. H.R.Rep.No.591, 59th Cong., 1st Sess., p. 5; 40 Cong.Rec. 2256 (remarks of Congressman Hepburn). Moreover, the equitable nature of the direct review proceedings certainly affords ample basis for requiring the direct review court to defer its proceedings pending the outcome of the enforcement action, a course that is consistent with the legislative history of the direct review proceeding and that will maximize the remedial purposes of § 16(2).
39
Lest there be any misunderstanding, we emphasize that our reasons for finding the direct review proceeding unavailable in a case such as this where the carriers began that proceeding in a forum other than that selected by the shipper for its enforcement action are inapplicable when the direct review proceeding is brought as a cross-action in the enforcement court.9 Obviously allowance of the cross-action will not impair the shipper's venue right. And we think that the § 16(2) provisions respecting court costs and attorney's fees unquestionably would be applicable to the whole of the combined action in such a case. The Commission argues, nevertheless, that reparation orders respecting past rates are not of sufficient general importance to require their defense by the United States and the Commission, and that the direct review proceeding should not be permitted regardless of the court in which it is brought. That apparently is not the view of Congress, however, for when it provided in 1964 that review of Commission orders entered on reference of primary jurisdiction issues should be had only in the court making the reference, 28 U.S.C. §§ 1336(b) and 1398(b) (1964 ed.), it did so by placing jurisdiction and venue of the direct review proceeding in that court, see generally S.Rep.No.1394, 88th Cong., 2d Sess. (1964), in 1964—2 U.S.Code Cong. and Admin.News, p. 3235, rather than by providing for review as an incident of the original action. See also Brief for the United States in Pennsylvania R. Co. v. United States (No. 451 O.T.1959), 7—9, 21—22. As we indicated in the preceding section, in some cases there will be some advantage for purposes of assuring the uniform application of the Act in the courts having jurisdiction to directly affect the Commission's order, and we see no justifiable reason for preventing the carrier from bringing the United States into the enforcement court should it so desire.
40
The proceeding before us, however, was not brought in the enforcement court. Indeed, proceedings in the latter court have been deferred pending the outcome of this case. For the reasons stated herein, the District Court erred in entertaining respondents' action and the judgment of the Court of Appeals sustaining the District Court must be reversed.
41
Reversed.
42
Mr. Justice DOUGLAS concurs in the result.
43
Mr. Justice BLACK took no part in the consideration or decision of this case.
1
The relevant text of the provisions discussed in text above reads as follows:
'§ 8. Liability in damages to persons injured by violation of law
'In case any common carrier subject to the provisions of this chapter shall do, cause to be done, or permit to be done any act, matter, or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this chapter required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this chapter, together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs in the case.
'§ 9. Remedies of persons damaged; election; witnesses
'Any person or persons claiming to be damaged by any common carrier subject to the provisions of this chapter may either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this chapter in any district court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt. * * *
'§ 13. Complaints to and investigations by Commission.
'(1) Complaint to Commission of violation of law by carrier; reparation; investigation
'Any person, firm, corporation, company, or association, or any mercantile, agricultural, or manufacturing society or other organization, or any body politic or municipal organization, or any common carrier complaining of anything done or omitted to be done by any common carrier subject to the provisions of this chapter in contravention of the provisions thereof, may apply to said Commission by petition, which shall briefly state the facts; whereupon a statement of the complaint thus made shall be forwarded by the Commission to such common carrier, who shall be called upon to satisfy the complaint, or to answer the same in writing, within a reasonable
time, to be specified by the Commission. If such common carrier within the time specified shall make reparation for the injury alleged to have been done, the common carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of. If such carrier or carriers shall not satisfy the complaint within the time specified, or there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the matters complained of in such manner and by such means as it shall deem proper.
'§ 16. Orders of commission and enforcement thereof
'(1) Award of damages
'If, after hearing on a complaint made as provided in section 13 of this title, the commission shall determine that any party complainant is entitled to an award of damages under the provisions of this chapter for a violation thereof, the commission shall make an order directing the carrier to pay to the complainant the sum to which he is entitled on or before a day named.
'(2) Proceedings in courts to enforce orders; costs; attorney's fee
'If a carrier does not comply with an order for the payment of money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may file in the 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, or through which the road of the carrier runs, or in any State court of general jurisdiction having jurisdiction of the parties, a complaint setting forth briefly the causes for which he claims damages, and the order of the commission in the premises. Such suit in the district court of the United States shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the commission shall be prima facie evidence of the facts therein stated, and except that the plaintiff shall not be liable for costs in the district court nor for costs at any subsequent state of the proceedings unless they accrue upon his appeal. If the plaintiff shall finally prevail he shall be allowed a reasonable attorney's fee, to be taxed and collected as a part of the costs of the suit.' Interstate Commerce Act §§ 8, 9, 13(1) and 16(1) and (2), 49 U.S.C. §§ 8, 9, 13(1) and 16(1) and (2) (1964 ed.).
2
'§ 17(9) Judicial relief from decisions, etc., upon denial or other disposition of application for rehearing, etc.
'When an application for rehearing, reargument, or reconsideration of any decision, order, or requirement of a division, an individual Commissioner, or a board with respect to any matter assigned or referred to him or it shall have been made and shall have been denied, or after rehearing, reargument, or reconsideration otherwise disposed of, by the Commission or an appellate division, a suit to enforce, enjoin, suspend, or set aside such decision, order, or requirement, in whole or in part, may be brought in a court of the United States under those provisions of law applicable in the case of suits to enforce, enjoin, suspend, or set side orders of the Commission, but not otherwise.' Interstate Commerce Act § 17(9), 49 U.S.C. § 17(9) (1964 ed.).
This provision was not added until 1940, Transportation Act of 1940, 54 Stat. 916, and is basically a provision requiring exhaustion of administrative remedies prior to resort to the courts. The first provision for direct judicial review of Commission orders appeared in § 5 of the Hepburn Act of 1906, 34 Stat. 590, 592, which was phrased in terms of venue only. For ease of reference, we will refer to direct review proceedings as § 17(9) proceedings.
3
The above-described provisions of the Judicial Code read in pertinent part:
§ 1336. Interstate Commerce Commission's orders
'(a) Except as otherwise provided by Act of Congress, the district courts shall have jurisdiction of any civil action to enforce, enjoin, set aside, annul or suspend, in whole or in any part, any order of the Interstate Commerce Commission.
§ 1398. Interstate Commerce Commission's orders
'(a) Except as otherwise provided by law, any civil action to enforce, suspend or set aside in whole or in part an order of the Interstate Commerce Commission shall be brought only in the judicial district wherein is the residence or principal office of any of the parties bringing such action.
§ 2321. Procedure generally; process
'The procedure in the district courts in actions to enforce, suspend, enjoin, annul or set aside in whole or in part any order of the Interstate Commerce Commission other than for the payment of money or the collection of fines, penalties and forfeitures, shall be as provided in this chapter. * * *
§ 2322. United States as party
'All actions specified in section 2321 of this title shall be brought by or against the United States.
§ 2323. Duties of Attorney General; intervenors
'The Attorney General shall represent the Government in the actions specified in section 2321 of this title * * * in the district courts, and in the Supreme Court of the United States upon appeal from the district courts.
'The Interstate Commerce Commission and any party or parties in interest to the proceeding before the Commission, in which an order or requirement is made, may appear as parties of their own motion and as of right, and be represented by their counsel, in any action involving the validity of such order or requirement or any part thereof, and the interest of such party. * * *
§ 2325. Injunctions; three-judge court required
'An interlocutory or permanent injunction restraining the enforcement, operation or execution, in whole or in part, of any order of the Interstate Commerce Commission shall not be granted unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.' 28 U.S.C. §§ 1336(a), 1398(a), 2321—2323, 2325 (1964 ed.).
4
As is readily apparent from this opinion, the statutory provisions governing this case and the companion case, Consolo, 383 U.S. 607, 86 S.Ct. 1018, are an historical patchwork subject to more than one interpretation. The entire matter is surely ripe for congressional consideration, for it is of continuing significance and the competing considerations of yesterday may not be those of overriding importance today.
5
Frequent Commission practice, Illustrated by the procedure adopted in the present case, is to separate from the issue of shipper's damages issues respecting the existence of a statutory violation and the availability of statutory defenses such as the statute of limitations defense asserted by respondents and to try the latter issues first. The core of the dispute here concerns the forum for review of Commission findings on such issues of violation and limitations.
6
Section 16(2), of course, does not limit the carrier to introducing opposing evidence to rebut the prima facie effect of the Commission's order. It may also challenge the admissibility of the order on the grounds, for example, that the Commission did not afford the carrier a fair hearing or that the order was not based upon substantial evidence, Spiller v. Atchison, T. & S.F.R. Co., 253 U.S. 117, 126, 40 S.Ct. 446, 470, 64 L.Ed. 810. But if a Commission order containing findings on all matters essential to the shipper's recovery is admitted and the carrier produces no opposing evidence, the findings and order of the Commission may not be rejected by the jury and the shipper is entitled to judgment. Meeker v. Lehigh Valley R. Co., 236 U.S. 434, 439, 35 S.Ct. 337, 339, 59 L.Ed. 659; see Pennsylvania R. Co. v. W. F. Jacoby & Co., 242 U.S. 89, 94, 37 S.Ct. 49, 51, 61 L.Ed. 165 (dictum).
7
In Louisville & Nashville R. Co. v. Sloss-Sheffield Steel & Iron Co., 269 U.S. 217, 46 S.Ct. 73, 70 L.Ed. 242, the Court considered a carrier's statute of limitations defense on review of a judgment for the shipper in a § 16(2) enforcement action. Accord, Meeker & Co. v. Lehigh Valley R. Co., 236 U.S. 412, 35 S.Ct. 328, 59 L.Ed. 644. Thus, it would seem beyond question that respondents here could have presented in Thomson's New York action the defense on which they prevailed in the courts below.
8
Venue of suits to set aside the Commission's order is limited by 28 U.S.C. § 1398 (1964 ed.) to the district in which the party bringing the action has its residence or principal office. Section 16(2) provides for venue in the district where the shipper resides 'or in which is located the principal operating office of the carrier, or through which the road of the carrier runs * * *.' As § 16(2) does not expressly provide for venue in the district in which the carrier resides and that district may not coincide with one of the districts that are listed, it would appear that in some cases in which the carrier elects to file its § 17(9) action in the district of its residence, rather than the district of its principal office, the district chosen by the carrier will not be one where the shipper could originally have brought suit. It was primarily similar venue problems that prompted enactment in 1964 of 28 U.S.C. § 1336(b), which provides that exclusive jurisdiction of a § 17(9) action to set aside a Commission order arising out of a primary jurisdiction reference to the Commission shall be vested in the referring court. 1964—2 U.S.Code Cong. and Admin.News pp. 3235—3239. When the § 17(9) action is filed first, however, venue difficulties are less likely to occur as the § 16(2) venue provisions are in general broader than those applicable to § 17(9) actions. In any event, venue objections may perhaps be overcome by transfer of the § 17(9) action, 28 U.S.C. § 1404 (1964 ed.), or by application of the doctrine of waiver, see 3 Moore, Federal Practice 13.16, at p. 45 (2d ed. 1964) (venue of counterclaims by interveners).
9
'Except as otherwise provided by law,' 28 U.S.C. § 1398(a) (1964 ed.), quoted, supra, n. 3, limits venue of direct review proceedings to the judicial district of the residence or principal place of business of the party bringing the action. Since we interpret § 16(2) as precluding a carrier from bringing an enforcement action in any court but the enforcement court, that section provides venue for the carrier's cross-action under the '(e)xcept as otherwise provided by law' provision of § 1398(a). In the rare cases when the enforcement action is brought in state, rather than federal, court it will of course not be possible for the carrier to bring a § 17(9) cross-action.
| 78
|
383 U.S. 627
86 S.Ct. 1123
16 L.Ed.2d 145
UNITED STATES, Petitioner,v.Charles E. O'MALLEY et al.
No. 127.
Argued Jan. 24 and 25, 1966.
Decided March 23, 1966.
Sol. Gen. Thurgood Marshall, for petitioner.
Leon Fieldman, Chicago, Ill., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
The Internal Revenue Code of 1939 imposes an estate tax 'upon the transfer of the net estate of every decedent.' § 810. The gross estate is to include not only all property '(t)o the extent of the interest therein of the decedent at the time of his death,' § 811(a), but also, under § 811(c)(1), all property
2
'To the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona fide sale for an adequate and full consideration in money or money's worth), by trust or otherwise—
3
'(A) in contemplation of his death; or
4
'(B) under which he has retained for his life or for any period not ascertainable without reference to his death or for any period which does not in fact end before his death (i) the possession or enjoyment of, or the right to the income from, the property, or (ii) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom; or1
5
'(C) intended to take effect in possession or enjoyment at or after his death,' and, under § 811(d), property which has been the subject of a revocable transfer described in that section.2
6
Edward H. Fabrice, who died in 1949, created five irrevocable trusts in 1936 and 1937, two for each of two daughters and one for his wife. He was one of three trustees of the trusts, each of which provided that the trustees, in their sole discretion, could pay trust income to the beneficiary or accumulate the income, in which event it became part of the principal of the trust.3 Basing his action on § 811(c)(1)(B)(ii) and § 811(d)(1), the Commissioner included in Fabrice's gross estate both the original principal of the trusts and the accumulated income added thereto. He accordingly assessed a deficiency, the payment of which prompted this refund action by the respondents, the executors of the estate. The District Court found the original corpus of the trusts includable in the estate, a holding not challenged in the Court of Appeals or here. It felt obliged, however, by Commissioner of Internal Revenue v. McDermott's Estate, 7 Cir., 222 F.2d 665, 55 A.L.R.2d 410, to exclude from the taxable estate the portion of the trust principal representing accumulated income and to order an appropriate refund. D.C., 220 F.Supp. 30. The Court of Appeals affirmed, 340 F.2d 930, adhering to its own decision in McDermott's Estate and noting its disagreement with Round v. Commissioner of Internal Revenue, 332 F.2d 590, in which the Court of Appeals for the First Circuit declined to follow McDermott's Estate. Because of these conflicting decisions we granted certiorari. 382 U.S. 810, 86 S.Ct. 35, 15 L.Ed.2d 58. We now reverse the decision below.
7
The applicability of § 811(c)(1)(B)(ii), upon which the United States now stands, depends upon the answer to two inquiries relevant to the facts of this case: first, whether Fabrice retained a power 'to designate the persons who shall possess or enjoy the property or the income therefrom'; and second, whether the property sought to be included, namely, the portions of trust principal representing accumulated income, was the subject of a previous transfer by Fabrice.
8
Section 811(c)(1)(B)(ii), which originated in 1931, was an important part of the congressional response to May v. Heiner, 281 U.S. 238, 50 S.Ct. 286, 74 L.Ed. 826, and its offspring4 and of the legislative policy of subjecting to tax all property which has been the subject of an incomplete inter vivos transfer. Cf. Commissioner of Internal Revenue v. Estate of Church, 335 U.S. 632, 644—645, 69 S.Ct. 322, 328—329, 93 L.Ed. 288; Helvering v. Hallock, 309 U.S. 106, 114, 60 S.Ct. 444, 449, 84 L.Ed. 604. The section requires the property to be included not only when the grantor himself has the right to its income but also when he has the right to designate those who may possess and enjoy it. Here Fabrice was empowered, with the other trustees, to distribute the trust income to the income beneficiaries or to accumulate it and add it to the principal, thereby denying to the beneficiaries the privilege of immediate enjoyment and conditioning their eventual enjoyment upon surviving the termination of the trust. This is a significant power, see Commissioner of Internal Revenue v. Estate of Holmes, 326 U.S. 480, 487, 66 S.Ct. 257, 260, 90 L.Ed. 228, and of sufficient substance to be deemed the power to 'designate' within the meaning of § 811(c)(1)(B)(ii). This was the holding of the Tax Court and the Court of Appeals almost 20 years ago. Industrial Trust Co. v. Commissioner of Internal Revenue, 1 Cir., 165 F.2d 142, 1 A.L.R.2d 144, affirming in this respect Estate of Budlong v. Commissioner, T.C. 756. The District Court here followed Industrial Trust and affirmed the includability of the original principal of each of the Fabrice trusts. That ruling is not now disputed. By the same token, the first condition to taxing accumulated income added to the principal is satisfied, for the income from these increments to principal was subject to the identical power in Fabrice to distribute or accumulate until the very moment of his death.
9
The dispute in this case relates to the second condition to the applicability of § 811(c)(1)(B)(ii)—whether Fabrice had ever 'transferred' the income additions to the trust principal. Contrary to the judgment of the Court of Appeals, we are sure that he had. At the time Fabrice established these trusts, he owned all of the rights to the property transferred, a major aspect of which was his right to the present and future income produced by that property. Commissioner of Internal Revenue v. Estate of Church, 335 U.S. 632, 644, 69 S.Ct. 322, 328, 93 L.Ed. 288. With the creation of the trusts, he relinquished all of his rights to income except the power to distribute that income to the income beneficiaries or to accumulate it and hold it for the remaindermen of the trusts. He no longer had, for example, the right to income for his own benefit or to have it distributed to any other than the trust beneficiaries. Moreover, with respect to the very additions to principal now at issue, he exercised his retained power to distribute or accumulate income, choosing to do the latter and thereby adding to the principal of the trusts. All income increments to trust principal are therefore traceable to Fabrice himself, by virtue of the original transfer and the exercise of the power to accumulate. Before the creation of the trusts, Fabrice owned all rights to the property and to its income. By the time of his death he had divested himself of all power and control over accumulated income which had been added to the principal, except the power to deal with the income from such additions. With respect to each addition to trust principal from accumulated income, Fabrice had clearly made a 'transfer' as required by § 811(c)(1)(B)(ii). Under that section, the power over income retained by Fabrice is sufficient to require the inclusion of the original corpus of the trust in his gross estate. The accumulated income added to principal is subject to the same power and is likewise includable. Round v. Commissioner of Internal Revenue, 332 F.2d 590; Estate of Yawkey v. Commissioner, 12 T.C. 1164.5
10
Respondents rely upon two cases in which the Tax Court and two circuit courts of appeals have concluded that where an irrevocable inter vivos transfer in trust, not incomplete in any respect, is subjected to tax as a gift in contemplation of death under § 811(c), the income of the trust accumulated prior to the grantor's death is not includable in the gross estate. Commissioner of Internal Revenue v. Gidwitz' Estate, 7 Cir., 196 F.2d 813, affirming 14 T.C. 1263; Burns v. Commissioner of Internal Revenue, 5 Cir., 177 F.2d 739, affirming 9 T.C. 979. The courts in those cases considered the taxable event to be a completed inter vivos transfer, not a transfer at death, and the property includable to be only the property subject to that transfer. The value of that property, whatever the valuation date, was apparently deemed an adequate reflection of any income rights included in the transfer since the grantor retained no interest in the property and no power over income which might justify the addition of subsequently accumulated income to his own gross estate. Cf. Maass v. Higgins, 312 U.S. 443, 61 S.Ct. 631, 85 L.Ed. 940.
11
This reasoning, however, does not solve those cases arising under other provisions of § 811. The courts in both Burns, 9 T.C. 979, 988—989 and Gidwitz, 196 F.2d 813, 817—818, expressly distinguished those situations where the grantor retains an interest in a property or its income, or a power over either, and his death is a significant step in effecting a transfer which began inter vivos but which becomes final and complete only with his demise. McDermott's Estate failed to note this distinction and represents an erroneous extension of Gidwitz.6 In both McDermott and the case before us now, the grantor reserved the power to accumulate or distribute income. This power he exercised by accumulating and adding income to principal and this same power he held until the moment of his death with respect to both the original principal and the accumulated income. In these circumstances, § 811(c)(1)(B)(ii) requires inclusion in Fabrice's gross estate of all of the trust principal, including those portions representing accumulated income.
12
Reversed.
13
Mr. Justice STEWART, with whom Mr. Justice HARLAN joins, dissenting.
14
In the 1930's Edward Fabrice made an irrevocable transfer of certain property to trusts for the benefit of his wife and daughters. Twelve years later he died. Because of the provisions of § 811(c)(1)(B)(ii) of the Internal Revenue Code of 1939,1 the value of the property Fabrice had irrevocably transferred was nonetheless included in his gross estate for estate tax purposes. The respondents do not question the correctness of that determination. But in this case the Court holds that the accumulated income which that property generated during the 12 years that elapsed after Fabrice had irrevocably transferred it is also to be included in his gross estate under § 811(c)(1)(B)(ii). I think the Court misreads the statute.
15
By its terms the statutory provision applies only to property 'of which the decedent has at any time made a transfer.' Fabrice 'made a transfer' only of the original trust corpus. He never 'made a transfer' of the income which the corpus thereafter produced, whether accumulated or not.2 I can put the matter no more clearly than did the Court of Appeals for the Seventh Circuit in Commissioner of Internal Revenue v. McDermott's Estate, 222 F.2d 665, 668:
16
'Irrespective of all other considerations, property to be includible must have been transferred. Obviously, the accumulations here involved were not transferred by the decedent to the trustee. It is true, of course, that the accumulations represented the fruit derived from the property which was transferred but, even so, Congress did not make provision for including the fruit, it provided only for the property transferred. If it desired and intended to include the accumulations, it would have been a simple matter for it to have so stated.'
17
See also Michigan Trust Co. v. Kavanagh, 284 F.2d 502, 506 507 (C.A.6th Cir).
18
Nothing in the legislative history persuades me that the statute should not be applied as it was written, and I would therefore affirm the judgment.
1
Section 2036 of the Int.Rev.Code of 1954, as amended, 26 U.S.C. § 2036 (1964 ed.), is materially the same as § 811(c)(1)(B) of the Int.Rev.Code of 1939.
2
Section 811(d)(1) provides:
'To the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona-fide sale for an adequate and full consideration in money or money's worth), by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power (in whatever capacity exercisable) by the decedent alone or by the decedent in conjunction with any other person (without regard to when or from what source the decedent acquired such power), to alter, amend, revoke, or terminate, or where any such power is relinquished in contemplation of decedent's death.'
3
The following provision in the trust for Janet Fabrice is also contained in the other trusts:
'The net income from the Trust Estate shall be paid, in whole or in part, to my daughter, JANET FABRICE, in such proportions, amounts and at such times as the Trustees may, from time to time, in their sole discretion, determine, or said net income may be retained by the Trustees and credited to the account of said beneficiary, and any income not distributed in any calendar year shall become a part of the principal of the Trust Estate.'
4
In May v. Heiner the Court dealt with a trust providing for payment of income to the spouse for his life, then to the grantor for her life, with remainder to the children. The corpus of the trust was held not includable in the gross estate under Revenue Act of 1918, c. 18, § 402(c), 40 Stat. 1097, which was the predecessor of § 811(c), I.R.C.1939, and which then provided for the inclusion of all property '* * * (t)o the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has at any time created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after his death. * * *' 281 U.S. 238, 244, 50 S.Ct. 286, 287. There followed on March 2, 1931, three per curiam opinions in the same vein: Burnet v. Northern Trust Co., 283 U.S. 782, 51 S.Ct. 342, 75 L.Ed. 1412 (grantor reserved life interest in income); Morsman v. Burnet, 283 U.S. 783, 51 S.Ct. 343, 75 L.Ed. 1412 (the same); McCormick v. Burnet, 283 U.S. 784, 51 S.Ct. 343, 75 L.Ed. 1413 (trustees directed to accumulate income subject to power in the grantor to request distributions for certain specified purposes; grantor also had a power to terminate contingent upon approval of any one beneficiary and a remainder interest contingent upon surviving all named beneficiaries). On March 3, 1931, § 302(c) of the Revenue Act of 1926 was amended by joint resolution to read as follows:
'To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in contemplation of or intended to take effect in possession or enjoyment at or after his death, including a transfer under which the transferor has retained for his life or any period not ending before his death (1) the possession or enjoyment of, or the income from, the property or (2) the right to designate the persons who shall possess or enjoy the property or the income therefrom; except in case of a bona fide sale for an adequate and full consideration in money or money's worth.' Revenue Act of 1926, c. 27, § 302(c), 44 Stat. 70, as amended, c. 454, § 302(c), 46 Stat. 1516. Through various amendments in other years, § 302(c) evolved into § 811(c), Int.Rev.Code of 1939.
5
This same result was reached, but without discussion, in Estate of Spiegel v. Commissioner of Internal Revenue, 335 U.S. 701, 69 S.Ct. 301, 93 L.Ed. 330, under the 'take effect in possession or enjoyment' provision of § 811(c) and in Commissioner of Internal Revenue v. Estate of Holmes, 326 U.S. 480, 66 S.Ct. 257, 90 L.Ed. 228, under § 811(d). Other cases reaching the same conclusion under § 811(d) or its predecessors are Commissioner of Internal Revenue v. Hager's Estate, 3 Cir., 173 F.2d 613, petition for cert. dismissed, 337 U.S. 937, 69 S.Ct. 1515, 93 L.Ed. 1742; Estate of Showers v. Commissioner, 14 T.C. 902; Estate of Guggenheim v. Commissioner, 40 B.T.A. 181, aff'd, 2 Cir., 117 F.2d 469, cert. denied, 314 U.S. 621, 62 S.Ct. 66, 86 L.Ed. 499.
6
The Court of Appeals in McDermott's Estate was clearly wrong in saying that the transfer there involved was as complete as was the transfer in Gidwitz. In Gidwitz the transfer was in trust and the grantor was one of the trustees but there was a specific direction to accumulate with no discretionary powers in the trustees over either income or principal. In McDermott, as in this case, the grantor retained the power, with other trustees, to accumulate or distribute trust income.
1
The relevant text of the statute is set out on page 628 of the Court's opinion.
2
The value of the original trust corpus at the time of transfer and at the time of Fabrice's death no doubt reflected its income-producing capacity.
| 1112
|
383 U.S. 637
86 S.Ct. 1092
16 L.Ed.2d 153
FEDERAL TRADE COMMISSION, Petitioner,v.The BORDEN COMPANY.
No. 106.
Argued Jan. 19, 1966.
Decided March 23, 1966.
Robert B. Hummel, Washington, D.C., for petitioner.
John E. F. Wood, New York City, for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
The Borden Company, respondent here, produces and sells evaporated milk under the Borden name, a nationally advertised brand. At the same time Borden packs and markets evaporated milk under various private brands owned by its customers. This milk is physically and chemically identical with the milk it distributes under its own brand but is sold at both the wholesale and retail level at prices regularly below those obtained for the Borden brand milk. The Federal Trade Commission found the milk sold under the Borden and the private labels to be of like grade and quality as required for the applicability of § 2(a) of the Robinson-Patman Act,1 held the price differential to be discriminatory within the meaning of the section, ascertained the requisite adverse effect on commerce, rejected Borden's claim of cost justification and consequently issued a cease-and-desist order. The Court of Appeals set aside the Commission's order on the sole ground that as a matter of law, the customer label milk was not of the same grade and quality as the milk sold under the Borden brand. 5 Cir., 339 F.2d 133. Because of the importance of this issue, which bears on the reach and coverage of the Robinson-Patman Act, we granted certiorari. 382 U.S. 807, 86 S.Ct. 31, 15 L.Ed.2d 57. We now reverse the decision of the Court of Appeals and remand the case to that court for the determination of the remaining issues raised by respondent Borden in that court. Cf. Federal Trade Comm'n v. Anheuser-Busch, Inc., 363 U.S. 536, 542, 80 S.Ct. 1267, 4 L.Ed.2d 1385.
2
The position of Borden and of the Court of Appeals is that the determination of like grade and quality, which is a threshold finding essential to the applicability of § 2(a), may not be based solely on the physical properties of the products without regard to the brand names they bear and the relative public acceptance these brands enjoy—'consideration should be given to all commercially significant distinctions which affect market value, whether they be physical or promotional.' 339 F.2d, at 137. Here, because the milk bearing the Borden brand regularly sold at a higher price than did the milk with a buyer's label, the court considered the products to be 'commercially' different and hence of different 'grade' for the purposes of § 2(a), even though they were physically identical and of equal quality. Although a mere difference in brand would not in itself demonstrate a difference in grade, decided consumer preference for one brand over another, reflected in the willingness to pay a higher price for the well-known brand, was, in the view of the Court of Appeals, sufficient to differentiate chemically identical products and to place the price differential beyond the reach of § 2(a).
3
We reject this construction of § 2(a), as did both the examiner and the Commission in this case. The Commission's view is that labels do not differentiate products for the purpose of determining grade or quality, even though the one label may have more customer appeal and command a higher price in the marketplace from a substantial segment of the public. That this is the Commission's long-standing interpretation of the present Act, as well as of § 2 of the Clayton Act before its amendment by the Robinson-Patman Act,2 may be gathered from the Commission's decisions dating back to 1936. Whitaker Cable Corp., 51 F.T.C. 958 (1955); Page Dairy Co., 50 F.T.C. 395 (1953); United States Rubber Co., 46 F.T.C. 998 (1950); United States Rubber Co., 28 F.T.C. 1489 (1939); Hansen Inoculator Co., 26 F.T.C. 303 (1938); Goodyear Tire & Rubber Co., 22 F.T.C. 232 (1936). These views of the agency are entitled to respect Federal Trade Comm'n v. Mandel Brothers, Inc., 359 U.S. 385, 391, 79 S.Ct. 818, 3 L.Ed.2d 893, and represent a more reasonable construction of the statute than that offered by the Court of Appeals.3
4
Obviously there is nothing in the language of the statute indicating that grade, as distinguished from quality, is not to be determined by the characteristics of the product itself, but by consumer preferences, brand acceptability or what customers think of it and are willing to pay for it. Moreover, what legislative history there is concerning this question supports the Commission's construction of the statute rather than that of the Court of Appeals.
5
During the 1936 hearings on the proposed amendments to § 2 of the Clayton Act, the attention of the Congress was specifically called to the question of the applicability of § 2 to the practice of a manufacturer selling his product under his nationally advertised brand at a different price than he charged when the product was sold under a private label. Because it was feared that the Act would require the elimination of such price differentials, Hearings on H.R. 4995 before the House Committee on the Judiciary, 74th Cong., 2d Sess., p. 355, and because private brands 'would (thus) be put out of business by the nationally advertised brands,' it was suggested that the proposed § 2(a) be amended so as to apply only to sales of commodities of 'like grade, quality and brand.' (Emphasis added.) Id., at 421. There was strong objection to the amendment and it was not adopted by the Committee.4 The rejection of this amendment assumes particular significance since it was pointed out in the hearings that the legality of price differentials between proprietary and private brands was then pending before the Federal Trade Commission in Goodyear Tire & Rubber Co., 22 F.T.C. 232. By the time the Committee Report was written, the Commission had decided Goodyear. The report quoted from the decision and interpreted it as holding that Goodyear had violated the Act because 'at no time did it offer to its own dealers prices on Goodyear brands of tires which were comparable to prices at which respondent was selling tires of equal or comparable quality to Sears, Roebuck & Co.' H.R.Rep. No. 2287, 74th Cong., 2d Sess., p. 4.
6
During the debates on the bill, Representative Patman, one of the bill's sponsors, was asked about the private label issue. His brief response is wholly consistent with the Commission's interpretation of § 2(a), 80 Cong.Rec. 8115:
7
'MR. TAYLOR of South Carolina. There has grown up a practice on the part of manufacturers of making certain brands of goods for particular chain stores. Is there anything in this bill calculated to remedy that situation?
8
'MR. PATMAN. * * * I have not time to discuss that feature, but the bill will protect the independents in that way, because they will have to sell to the independents at the same price for the same product where they put the same quality of merchandise in a package, and this will remedy the situation to which the gentleman refers.
9
'Mr. TAYLOR of South Carolina. Irrespective of the brand.
10
'Mr. PATMAN. Yes; so long as it is the same quality. * * *
11
The Commission's construction of the statute also appears to us to further the purpose and policy of the Robinson-Patman Act. Subject to specified exceptions and defenses, § 2(a) proscribes unequal treatment of different customers in comparable transactions, but only if there is the requisite effect upon competition, actual or potential. But if the transactions are deemed to involve goods of disparate grade or quality, the section has no application at all and the Commission never reaches either the issue of discrimination or that of anticompetitive impact. We doubt that Congress intended to foreclose these inquiries in situations where a single seller markets the identical product under several different brands, whether his own, his customers' or both. Such transactions are too laden with potential discrimination and adverse competitive effect to be excluded from the reach of § 2(a) by permitting a difference in grade to be established by the label alone or by the label and its consumer appeal.5
12
If two products, physically identical but differently branded, are to be deemed of different grade because the seller regularly and successfully markets some quantity of both at different prices, the seller could, as far as § 2(a) is concerned, make either product available to some customers and deny it to others, however discriminatory this might be and however damaging to competition. Those who were offered only one of the two products would be barred from competing for those customers who want or might buy the other. The retailer who was permitted to buy and sell only the more expensive brand would have no chance to sell to those who always buy the cheaper product or to convince others, by experience or otherwise, of the fact which he and all other dealers already know—that the cheaper product is actually identical with that carrying the more expensive label.
13
The seller, to escape the Act, would have only to succeed in selling some unspecified amount of each product to some unspecified portion of his customers, however large or small the price differential might be. The seller's pricing and branding policy, by being successful, would apparently validate itself by creating a difference in 'grade' and thus taking itself beyond the purview of the Act.6
14
Our holding neither ignores the economic realities of the marketplace nor denies that some labels will command a higher price than others, at least from some portion of the public. But it does mean that 'the economic factors inherent in brand names and national advertising should not be considered in the jurisdictional inquiry under the statutory 'like grade and quality' test.' Report of The Attorney General's National Committee to Study the Antitrust Laws 158 (1955). And it does mean that transactions like those involved in this case may be examined by the Commission under § 2(a). The Commission will determine, subject to judicial review, whether the differential under attack is discriminatory within the meaning of the Act, whether competition may be injured, and whether the differential is cost-justified or is defensible as a good-faith effort to meet the price of a competitor. '(T)angible consumer preferences as between branded and unbranded commodities should receive due legal recognition in the more flexible 'injury' and 'cost justification' provisions of the statute.' Id., at 159 This, we think, is precisely what Congress intended. The arguments for exempting private brand selling from § 2(a) are, therefore, more appropriately addressed to the Congress than to this Court.7
15
The Court of Appeals suggested that the Commissioner's views of like grade and quality for the purposes of § 2(a) cannot be squared with its rulings in cases where a seller presents the defense under § 2(b)8 that he is in good faith meeting the equally low price of a competitor.9 In those cases, it is said, the Commission has given full recognition to the significance of the higher prices commanded by the nationally advertised brand 'in holding that a seller who reduces the price of his premium product to the level of his nonpremium competitiors is not merely meeting competition, but undercutting it.' 339 F.2d, at 138.
16
The Commission, on the other hand, sees no inconsistency between its present decision and its § 2(b) cases. In its view, the issue under § 2(b) of whether a seller's lower price is a good-faith meeting of competition involves considerations different from those presented by the jurisdictional question of 'like grade and quality' under § 2(a).
17
We need not resolve these contrary position. The issue we have here relates to § 2(a), not to § 2(b), and we think the Commission has resolved it correctly. The § 2(b) cases are not now before us and we do not venture to decide them. The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
18
Reversed and remanded.
19
Mr. Justice STEWART, with whom Mr. Justice HARLAN joins, dissenting.
20
I cannot agree that mere physical or chemical identity between premium and private label brands is, without more, a sufficient basis for a finding of 'like grade and quality' within the meaning of § 2(a) of the Robinson-Patman Act. The conclusion that a product that travels at a premium in the marketplace is of 'like grade and quality' with products of inferior commercial value is not required by the language of the Robinson-Patman Act, by its logic, or by its legislative history.
21
It is undisputed that the physical attributes and chemical constituents of Borden's premium and private label brands of evaporated milk are identical. It is also undisputed that the premium and private label brands are not competitive at the same price, and that if the private label milk is to be sold at all, it must be sold at prices substantially below the price commanded by Borden's premium brand.1 This simple market fact no more than reflects the obvious economic reality that consumer preferences can and do create significant commercial distinctions between otherwise similar products. By pursuing product comparison only so far as the result of laboratory analysis, the Court ignores a most relevant aspect of the inquiry into the question of 'like grade and quality' under § 2(a): Whether the products are different in the eyes of the consumer.2
22
There is nothing intrinsic to the concepts of grade and quality that requires exclusion of the commercial attributes of a product from their definition. The product purchased by a consumer includes not only the chemical components that any competent laboratory can itemize, but also a host of commercial intangibles that distinguish the product in the marketplace.3 The premium paid for Borden brand milk reflects the consumer's awareness, promoted through advertising, that these commercial attributes are part and parcel of the premium product he is purchasing.4 The record in the present case indicates that wholesale purchasers of Borden's private label brands continued to purchase the premium brand in undiminished quantities. The record also indicates that retail purchasers who bought the premium brand did so with the specific expectation of acquiring a product of premium quality.5 Contrary to the Courts suggestion ante, p. 644, this consumer expectation cannot accurately be characterized as a misapprehension. Borden took extensive precautions to insure that a flawed product did not reach the consumer.6 None of these precautions was taken for the private brand milk packed by Borden.7 An important ingredient of the premium brand inheres in the consumer's belief, measured by past satisfaction and the market reputation established by Borden for its products, that tomorrow's can will contain the same premium product as that purchased today. To say, as the Court does, that these and other intangibles, which comprise an important part of the commercial value of a product, are not sufficient to confer on Borden's premium brand a 'grade' or 'quality' different from that of private label brands is to ignore the obvious market acceptance of that difference. '(C)ommercially the 'advertised' brands had come in the minds of the public to mean a different grade of milk. The public may have been wrong; * * * it may have been right * * *. But right or wrong, that is what it believed, and its belief was the important thing.' Borden's Farm Products Co. v. Ten Eyck, 11 F.Supp. 599, 601 (D.C.S.D.N.Y.) (opinion of L. Hand, J.).8
23
The spare legislative history of the Robinson-Patman Act is in no way inconsistent with a construction of § 2(a) that includes market acceptance in the test of 'like grade and quality.' That history establishes no more than that mere differences in brand or design, unaccompanied by any genuine physical, chemical, or market distinction, are insufficient to negate a finding of 'like grade and quality' under § 2(a).9 Nothing that I have found in the legislative history speaks with precision to the sole issue before us here, the application of § 2(a) to physically or chemically identical products that are in fact differentiated by substantial market factors.10
24
Neither the remarks of Representative Patman, ante, p. 643, nor the letter of Mr. Teegarden, ante, p. 641, n. 4, supports the Court's conclusion that Congress intended physical and chemical identity to be the sole touchstone of 'like grade and quality.' Aside from the obviously casual nature of Mr. Patman's reply to the question concerning the effect of the Act on private label brands,11 his remarks go embarrassingly further than the circumspect reading sought to be given them by the Court. On its face, Mr. Patman's statement makes the blanket assertion that all products of the same quality must be sold at the same price. As thus stated, premium brands would have to be sold at the same price as private label brands, regardless of injury to competition, cost justification, or other available defenses under the Act. These undifferentiated remarks are therefore of little assistance in the determination of congressional intent. Far from supporting the Court's interpretation of § 2(a), the final paragraph of the Teegarden letter suggests that Mr. Teegarden considered the bill to have no effect on a premium brand producer's decision to furnish private label brands to purchasers, so long as the private label brands were made available on the same terms to all purchasers. Mr. Teegarden's concern was with the prevention of discrimination between purchasers on the basis of artificial differences in brand.12 That same concern, and no more, is all that may legitimately be read into the rejection by Congress of the proposal to add 'and brands' to the 'like grade and quality' provision in the bill. By rejecting that proposal, it can be inferred only that Congress contemplated 'no blanket exemption * * * for 'like' products which differed only in brand * * *, leaving open the application of the Act to differentiated products reflecting more than a nominal or superficial variation.' Rowe, Price Discrimination Under the Robinson-Patman Act 65 (1962).
25
The references in the legislative hearings and the House Committee Report to the Commission's decision in Goodyear Tire & Rubber Co., 22 F.T.C. 232, are equally inconclusive on the relevance of commercial acceptance to the determination of 'like grade and quality.' The striking aspect of that case is that Goodyear conceded that the differently branded tires involved in the proceeding were of like grade and quality, 22 F.T.C., at 290. Moreover, the tires purchased by Sears, Roebuck & Co. from Goodyear and sold under Sears' 'All State' label were advertised by Sears as obtained from 'the leading tire manufacturer' and 'the world's foremost tire manufacturer,' so that the market independence of Sears' private brand was compromised. Id., at 295, 297.
26
The other administrative precedents relied on by the Court also fail to establish any consistently settled interpretation by the Federal Trade Commission that physical identity is the sole touchstone of 'like grade and quality.' Those decisions singularly fail to focus on the significance of consumer preference as a relevant factor in the test of grade and quality.13 Moreover, the Commission has itself explicitly resorted to consumer preference or marketability to resolve the issue of 'like grade and quality' in cases where minor physical variations accompany a difference in product brand.14 The caprice of the Commission's present distinction thus invites Borden to incorporate slight tangible variations in its private label products, in order to bring itself within the Commission's current practice of considering market preferences in such cases.
27
The Commission's determination of 'like grade and quality' under § 2(a) in this case is seriously inconsistent with the position it has taken under § 2(b) in cases where as seller has presented the defense that he is in good faith meeting the equally low price of a competitor. The Commission decisions are clear that the 'meeting competition' defense is not available to a seller who reduces the price of his premium product to the level of nonpremium products sold by his competitors. The Commission decision under § 2(b) emphasize that market preference must be considered in determining whether a competitor is 'meeting' rather than 'beating' competition. In Standard Oil Co., 49 F.T.C. 923, 952, the Commission put it baldly:
28
'(I)n the retail distribution of gasoline public acceptance rather than chemical analysis of the product is the important competitive factor.'15
29
Could the Commission under § 2(b) now prevent Borden from reducing the price of its premium milk to the level of private label milk? I can see no way that it could, short of maintaining a manifestly unstable equilibrium between § 2(a) and § 2(b). By adopting a keyhole approach to § 2(a), the Court manages to escape resolution of the question, but it does so at the cost of casting grave doubt on what I had regarded as an important bulwark of § 2(b) against a recognized competitive evil.
30
The Court gives no substantial economic justification for its construction of § 2(a).16 The principal rationale of the restriction of that section to commodities of 'like grade and quality' is simply that it is not feasible to measure discrimination and injury to competition where different products are involved. That rationale is as valid for economic as for physical variation between products. Once a substantial economic difference between products is found, therefore, the inquiry of the Commission should be ended, just as it is ended when a substantial physical difference is found.
31
In spite of the assertion of the Attorney General's Report quoted by the Court, it is unlikely that economic differences between premium and private label brands can realistically be taken into account by the Commission under the 'injury to competition' and 'cost justification' provisions of § 2(a).17 Even if relevant cost data can be agreed upon, the cost ratio between Borden's premium and private label products is hardly the most significant factor in Borden's pricing decision and market return on those products. Moreover, even if price discrimination is found here, its effect on competition may prove even more difficult to determine than in more conventional cases of price discrimination under § 2(a). Cf. FTC v. Morton Salt Co., 334 U.S. 37, 68 S.Ct. 822, 92 L.Ed. 1196; United Biscuit Co. of America v. FTC, 350 F.2d 615 (C.A.7th Cir.).
32
The threat presented to primary line competition by Borden's distribution of premium and private label brands is unclear. No allegation was made that Borden has used its dominant position in the premium brand market to subsidize predatory price-cutting campaigns in the private label market. Borden packs its private label brands for national distribution, so that this case is essentially different from those in which geographical price discriminations are involved. Further, Borden's private label brands are aimed in part at a different, more price-conscious class of consumer. Because relevant economic factors differ in the premium and private label markets, conventional notions of price discrimination under the Robinson-Patman Act may not be applicable.18 More important, Borden's extensive distribution of its private label brands has introduced significant low-cost competition for Borden's own premium product. Thus, the large retail chains and cooperative buyer organizations that are Borden's chief private label customers represent a significant source of countervailing power to the oligopoly patten of evaporated milk production. The rise of this sort of competition is well known in other parts of the food industry.19 In these circumstances, the anticompetitive leverage against primary line competition available to Borden through its private label production is sharply curtailed. There is, therefore, no real resemblance in this case to the serious discriminatory practices that the Robinson-Patman Act was enacted to prevent.
33
The potential economic impact of Borden's distribution of private label brands on secondary line competition is equally ambiguous. It is true that a market test of 'like grade and quality' would enable Borden, so far as § 2(a) is concerned, to make private label brands selectively available to customers of its premium brand. Not all wholesale and retail dealers who carry Borden's premium brand would be able, as of right, to take advantage of Borden's private label production. But the Commission could still apply § 2(a) with full force against discriminations between private label customers. And the Government could still invoke § 2 of the Sherman Act or § 5 of the Federal Trade Commission Act to deal with other forms of price discrimination by Borden against its customers or competitors.
34
Under the Court's view of § 2(a), Borden must now make private label milk available to all customers of its premium brand.20 But that interpretation of § 2(a) is hardly calculated to speed private label brands to the shelves of retailers. To avoid supplying a private label brand to a premium brand customer, Borden need only forgo further sales of its premium brand to that customer. It is, therefore, not unlikely that the Court's decision will foster a discrimination greater than that which it purports to eliminate, since retailers previously able to obtain the premium Borden brand but not a private label brand, may now find their access to the premium brand foreclosed as well.
35
In Automatic Canteen Co. of America v. FTC, 346 U.S. 61, 63, 73 S.Ct. 1017, 1019, 97 L.Ed. 1454, this Court cautioned against construction of the Robinson-Patman Act in a manner that might 'give rise to a price uniformity and rigidity in open conflict with the purposes of other antitrust legislation.' Today that warning goes unheeded. In the guise of protecting producers and purchasers from discriminatory price competition, the Court ignores legitimate market preferences and endows the Federal Trade Commission with authority to disrupt price relationships between products whose identity has been measured in the laboratory but rejected in the marketplace. I do not believe that any such power was conferred upon the Commission by Congress, and I would, therefore, affirm the judgment of the Court of Appeals.
1
Section 2(a) of the Clayton Act, 38 Stat. 730 (1914), as amended by the Robinson-Patman Act, 15 U.S.C. § 13(a) (1964 ed.), provides in pertinent part:
'It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered * * *.'
2
A proviso to § 2 of the original Clayton Act excepted price discrimination 'on account of differences in the grade, quality, or quantity of the commodity sold * * *.' 38 Stat. 730 (1914).
3
The commentators are somewhat divided on the dispute involved in this case. Supporting the Commission's view are the Report of The Attorney General's National Committee to Study the Antitrust Laws 158 (1955); Austin, Price Discrimination and Related Problems under the Robinson-Patman Act 39 (2d ed. 1959); Patman, The Robinson-Patman Act 27 (1938); Edwards, The Price Discrimina-
tion Law 31, 463—464 (1959); Seidman, Price Discrimination Cases, reprinted in 2 Hoffmann's Antitrust Law and Techniques 409, 424 428 (1963). Contrary views are expressed by a minority of the Attorney General's Committee; in Rowe, Price Discrimination Under the Robinson-Patman Act 75 (1962); and in Cassady & Grether, The Proper Interpretation of 'Like Grade and Quality' within the Meaning of Section 2(a) of the Robinson-Patman Act, 30 So.Cal.L.Rev. 241 (1957).
4
Mr. H. B. Teegarden, who was then counsel to the United States Wholesale Grocers Association, and who apparently played a large part in drafting the bill, Hearings on H.R. 4995 before the House
Committee on the Judiciary, 74th Cong., 1st Sess., p. 9, supplemented his oral testimony with a letter addressed in part to the proposed amendment:
'To amend the bill by inserting 'and brands,' after the words 'commodities of like grade and quality,' as suggested by Judge Watkins, although it may seem harmless at first sight, is a specious suggestion that would destroy entirely the efficacy of the bill against larger buyers. So amended, the bill would impose no limitation whatever upon price differentials, except as between different purchasers of the same brand. But where goods are put up under a private brand, there can only be one purchaser, namely the one for whom the brand is designed. Neither Kroger nor any independent could use and A. & P. private brand of canned fruit, for example; and to so amend the bill would leave every manufacturer free to put up his standard goods under a private brand for a particular purchaser and give him any price discount or discriminations that he might demand.
'Under the Patman bill as it stands, manufacturers are still free to put up their products under private brands; but if they do so for one purchaser under his private brand, then they must be ready to do so on the same terms, relative to their comparative costs, for a competing purchaser under his private brand; and unless that equality of treatment is required and assured, the discriminations at which the bill is aimed cannot be suppressed.' Id., 2d Sess., at 469.
5
Borden argues that it spends large sums to ensure the high quality of its Borden brand milk on customers' shelves, inferring that there really is a difference between its own milk and the milk sold under private labels, at least by the time it reaches the consumer. Of course, if Borden could prove this difference, it is unlikely that the case would be here. The findings are to the contrary in this case and we write on the premise that the two products are physically the same at the time of consumer purchase. Borden's extra expenses in connection with its own milk are more relevant to the cost justification issue than to the question we have before us.
6
The market acceptability test would hardly stop with insulating from inquiry the price differential between proprietary and private label sales. That test would also immunize from the Act sales at different prices of the same product under two different producer-owned labels, the one being less advertised and having less market acceptability than the other. And if it is 'consumer preferences,' dissenting opinion, p. 648, which create the difference in grade or quality, why should not Borden be able to discriminate between two purchasers of private label milk, as long as one label commands a higher price from consumers than the other and hence is a different grade and quality? In this context perhaps the market acceptability test would be refined to preclude this differential on the grounds that Borden's customer, as distinguished from the consumer, will not pay more than his competitor for private label milk and therefore the milk sold by Borden under one private brand is really of the same grade and quality as the milk sold under the other brand even though ultimate consumers will pay more for one than the other. Taking this approach, if Borden packed for one wholesale customer under two private labels, one having more consumer appeal than the other because of the customer's own advertising program, Borden must sell both brands at the same price it charges other private label customers because all such milk is of the same grade and quality. At the same time, the customer buying from Borden under two labels could himself sell one label at a reduced price without inquiry under § 2(a) because the milk in one container is no longer of the same grade and quality as that in the other, although both the milk and the containers came from Borden. Such an approach would obviously focus not on consumer preference as determinative of grade and quality but on who spent the advertising money that created the preference—Borden's customer, not Borden, created the preference and hence the milk is of the same grade and quality in Borden's hands but not in its customer's. The dissent would exempt the effective advertiser from the Act. We think Congress intended to remit him to his defenses under the Act, including that of cost justification.
7
This is not, of course, a helpful suggestion to those who think the congressional remedy would be 'very difficult if not impossible' and who thus prefer the more 'reasonable approach' through the courts. See Cassady & Grether, supra, n. 3, at 277.
8
Section 2(b), 15 U.S.C. § 13(b) (1964 ed.), provides as follows:
'Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitioner.'
9
The Court of Appeals relied upon Callaway Mills Co., sub nom. Bigelow-Sanford Carpet Co., CCH Trade Reg.Rep. Transfer Binder, 1963—1965, 16,800; Anheuser-Busch, Inc., 54 F.T.C. 277 (1957); Standard Oil Co., 49 F.T.C. 923 (1953); and Minneapolis-Honeywell Regulator Co., 44 F.T.C. 351 (1948). Borden adds Gerber Products Co. v. Beech-Nut Life Savers Co., 160 F.Supp. 916 (D.C.S.D.N.Y.1958).
1
For example, one wholesaler, a witness for the Commission, stated:
'Private label merchandise is no good for nobody unless there is a price on it. * * * In the retail trade asa whole they haven't been too much interested in (private label evaporated milk) * * * frankly if it was the same price as advertised or 15 cents or 25 cents a case under, it wouldn't sell, they couldn't give it away. * * * It has got to have $1.50 or $2 a case spread to make it interesting.'
2
No suggestion is made that any of the private label brands involved in this case show significant commercial differentiation from one another. It is possible, of course, that by extensive promotion private label brands could achieve consumer acceptance equivalent to that of a premium brand. In that situation, the products would still be economically different under the market test of § 2(a) elucidated in this opinion, since the relevant comparison would exclude promotional efforts by persons other than the producer of the premium brand. Thus, promotional activities by customers of Borden in the present case could not affect the determination of 'like grade and quality' with regard to sales by Borden. Cf. Jordan, Robinson-Patman Act Aspects of Dual Distribution by Brand of Consumer Goods, 50 Cornell L.Q. 394, 406 407 (1965).
3
Cf. Chamberlin, The Theory of Monopolistic Competition 56 (8th ed. 1962):
'A general class of product is differentiated if any significant basis exists for distinguishing the goods (or services) of one seller from those of another. Such a basis may be real or fancied, so long as it is of any importance whatever to buyers, and leads to a preference for one variety of the product over another. Where such differentiation exists, even though it be slight, buyers will be paired with sellers, nt by chance and at random (as under pure competition), but according to their preferences.
'Differentiation may be based upon certain characteristics of the product itself, such as exclusive patented features; trade-marks; trade names; peculiarities of the package or container, if any; or singularity in quality, design, color, or style. * * * In so far as these and other intangible factors vary from seller to seller, the 'product' in each case is different, for buyers take them into account, more or less, and may be regarded as purchasing them along with the commodity itself.'
See also Brown, Advertising and the Public Interest: Legal Protection of Trade Symbols, 57 Yale L.J. 1165, 1181 (1948):
'* * * The buyer of an advertised good buys more than a parcel of food or fabric; he buys the pause that refreshes, the hand that has never lost its skill, the priceless ingredient that is the reputation of its maker. All these may be illusions, but they cost money to create, and if the creators can recoup their outlay, who is the poorer? Among the many illusions which advertising can fashion are those of lavishness, refinement, security, and romance. Suppose the monetary cost of compounding a perfume is trivial; of what moment is this if the ads promise, and the buyer believes, that romance, even seduction, will follow its use? The economist, whose dour lexicon defines as irrational any market behavior not dictated by a logical pecuniary calculus, may think it irrational to buy illusions; but there is a degree of that kind of irrationality even in economic man; and consuming man is full of it.'
4
For example, a grocer testified in the proceedings before the Commission that:
'People are going into a grocery store to pick up groceries, the majority of the people buy something that is advertised that they have known for years or heard of for years or see highly advertised. They know it is a good product, they know it is fancy merchandise or best quality.' Another grocer testified that:
'A. Some people say they want (Borden's) Silver Cow milk. In other words, for maybe a coupon on the side of the can or because they have been educated to want that brand. Some of them won't have anything but that. Some of them won't have anything except Carnation, and some of them don't want anything except Pet.
'Q. They don't care what price—
'A. If the doctor tells the woman to put the baby on Pet milk, that is all she wants, you couldn't interest her in something else.
'Q. You couldn't give her something else, could you?
'A. I doubt if I could.'
5
The results of a house-to-house survey conducted for Borden by National Analysts, Inc., indicated that consumers selected Borden's premium brand because of its superior quality. Comparable studies have reached a similar conclusion. Cf. 'Mom Feels Quality, not Ad Cost, Makes Brand Item Costlier, 'Good House' Reports,' Advertising Age, Dec. 7, 1964, p. 30.
6
Borden's Food Products Division maintained a staff of field representatives who inspected code-datings on cans of Borden brand milk in retail stores, in order to insure that older milk was sold first off the retailer's shelves. A witness for Borden testified that the principal dangers of long storage were discoloration of the milk, precipitation of calcium and other minerals, and separation and hardening of fat from the milk. As a further precaution against sales of defective milk, Borden dispatched its milk to wholesalers and retailers under a first-packed, first-shipped rotation plan that occasionally involved high-cost shipments from distant plants or warehouses. In addition, before shipment from a cold storage warehouse, Borden 'tempered' its premium brand milk in order to prevent condensation on the cans, which might have resulted in rust to the cans and damage to the labels.
7
As counsel for the respondent candidly stated on oral argument to the Court, 'The difference as to the private label brand packed by Borden is that, as to that product, the Borden Company washes its hands of it at the factory door.'
8
The Court's suggestion that the commentators are about equally divided upon the issue before us is somewhat misleading. It is true that the members of the Attorney General's National Committee to Study the Antitrust Laws, Report, pp. 156—159 (1955), were sharply divided as to whether significant consumer preferences should be taken into account under the 'like grade and quality' test of § 2(a). However, the very brief discussions of 'like grade and quality' in Austin, Price Discrimination and Related Problems under the Robinson-Patman Act 39 (2d ed. 1959); Patman, Complete Guide to the Robinson-Patman Act 34—35 (1963); and Edwards, The Price Discrimination Law 31, 463—464 (1959), are not addressed to the relevance of significant consumer preferences, and the minimal discussion in Seidman is at best ambiguous, Price Discrimination Cases, reprinted in 2 Hoffmann's Antitrust Law and Techniques 409, 427—428 (1963). Those cursory treatments go no further than the view, with which I wholly agree, that no blanket exemption from § 2(a) is available for private label brands. But that view in no sense disposes of the concrete issue presented in this case. Commentators who have in fact focussed on the significance of consumer preferences uniformly favor inclusion of commercial acceptance in the test of 'like grade and quality.' Rowe, Price Differentials and Product Differentiation: The Issues under the Robinson-Patman Act, 66 Yale L.J. 1 (1956); Rowe, Price Discrimination Under the Robinson-Patman Act 62—76 (1962); Cassady & Grether, The proper Interpretation of 'Like Grade and Quality' within the Meaning of Section 2(a) of the Robinson-Patman Act, 30 So.Cal.L.Rev. 241 (1957); Jordan, Robinson-Patman Act Aspects of Dual Distribution by Brand of Consumer Goods, 50 Cornell L.Q. 394 (1965).
9
The Court's suggestion, ante, p. 644, that a difference in label alone would exclude the reach of § 2(a) if a market test were accepted for 'like grade and quality' is no part of the present case and has never been offered as a serious interpretation of § 2(a). Nor is there any issue raised here as to whether, under a market test of § 2(a), dubious pricing and branding policy adopted by a seller could 'validate itself' and escape the Act by creating precarious distinctions in grade or quality. The price differential between Borden's premium and private label brands is concededly grounded upon a legitimate and stable market preference for the premium product. Moreover, the Commission's willingness to engage in the exhaustive analysis of injury to competition and cost justification under its 'physical identity' test of § 2(a) demonstrates that the Commission's resources would be more than adequate to determine the level of commercial preference sufficient to negate a finding of 'like grade and quality' under a market test of § 2(a).
10
Certain general language in the congressional reports may be taken, however, as supporting the interpretation that market factors are relevant in the construction of § 2(a). The Report of the House Committee on the Judiciary stated that the general object of the bill was 'to amend section 2 of the Clayton Act so as to suppress more effectually discriminations between customers of the same seller not supported by sound economic differences in their business positions * * *.' H.R.Rep. No. 2287, 74th Cong., 2d Sess., p. 7. (Emphasis added.) The Report of the Senate Committee on the Judiciary is phrased in substantially the same language. S.R.Rep. No. 1502, 74th Cong., 2d Sess., p. 3.
11
The remarks of Representative Patman were even more offhand than the opinion of the Court indicates. Prefacing the portion of his remarks quoted by the Court, Mr. Patman said, 'I only have a very short time, and I must finish my statement. I have not time to discuss that feature. * * *'
12
The predominant concern of Congress in enacting the Robinson-Patman amendments to the Clayton Act was to abolish the notorious price discriminations that infected the post-Depression economy, especially the blanket immunity then available for quantity discounts under § 2 of the Clayton Act. An obvious commercial evil at the time was the widespread practice of offering private label brands to favored customers at rates substantially lower than the rates offered to competing purchasers. The abortive attempt, vigorously opposed by Mr. Teegarden, to introduce 'and brands' into the 'like grade and quality' provision would have left that evil completely unremedied. Cf. 80 Cong.Rec. 8234—8236 (rejection of amendments proposing the addition of 'and design' and 'purchased under like conditions' to the 'like grade and quality' clause).
13
In Hansen Inoculator Co., 26 F.T.C. 303, and the two United States Rubber Co. cases, 28 F.T.C. 1489; 46 F.T.C. 998, the finding of 'like grade and quality' was either conceded by the respondent or not challenged. In addition, in Hansen Inoculator, there was significant evidence that the private label product was in fact trading on the reputation of the premium product. Further, in Hansen Inoculator, as in Page Dairy Co., 50 F.T.C. 395, it is doubtful that even the labels on the two products were distinguishable. In Whitaker Cable Corp., 51 F.T.C. 958, the resale prices of both products were identical, so that no commercial preference could have been proved in any event. Finally, in the first United States Rubber case and in Whitaker Cable Corp., there was substantial discrimination by the seller between various purchasers of the private label brands. In setting aside the order of the Commission in the present case, the Court of Appeals for the Fifth Circuit emphasized that in none of these cases was there any showing that the brand names affected the market price of the product sold.
14
Universal-Rundle Corp., CCH Trade Reg. Rep. Transfer Binder, 1963—1965, 16948, at p. 22003—22005 (F.T.C.Dkt. 8070, June 12, 1964) (differences in plumbing fixtures); Quaker Oats Co., CCH Trade Reg. Rep. Transfer Binder, 1963—1965, 17134, at p. 22215 (F.T.C.Dkt. 8112, Nov. 18, 1964) (differences in flour blends). Compare E. Edelmann & Co., 51 F.T.C. 978 (differences in automobile replacement parts); Bruce's Juices, Inc. v. American Can Co., D.C., 87 F.Supp. 895, aff'd 187 F.2d 919 (C.A.5th Cir.) (differences in size of juice cans); Champion Spark Plug Co., 50 F.T.C. 30 (differences in insulator and 'ribs' of spark plugs). Cf. Comment, Like Grade and Quality: Emergence of the Commercial Standard, 26 Ohio State L.J. 294, 296—302 (1965). The Commission appears at one time to have held that brand identity may create a presumption of 'like grade and quality,' regardless of the existence of physical differences between the products. General Foods Corp., 52 F.T.C. 798, 817; Atalanta Trading Corp., 53 F.T.C. 565, 571. In setting aside the Commission's order in Atalanta, the Court of Appeals for the Second Circuit stated that 'The test of products of like grade and quality was evolved to prevent emasculation of the section by a supplier's making artificial distinctions in his product but his does not mean that all distinctions are to be disregarded.' Atalanta Trading Corp. v. FTC, 2 Cir., 258 F.2d 365, 371. In a footnote to that opinion, the Court of Appeals indicated that price differences were among the distinctions to be considered. Id., at 371, n. 5. Cf. Rowe, Price Discrimination Under the Robinson-Patman Act 71—72 (1962).
15
See also Minneapolis-Honeywell Regulator Co., 44 F.T.C. 351, 396—397: 'To accept (the contrary) proposition would mean that any seller of a commodity which generally sells at a premium price may freely discriminate among its customers so long as it does not undercut the prices of competitors'; Anheuser-Busch, Inc., 54 F.T.C. 277, 302: 'It is evident that Budweiser could and did successfully command a premium price in the St. Louis market. * * * The test in such a case is not necessarily a difference in quality but the fact that the public is willing to buy the product at a higher price in a normal market'; Callaway Mills Co., sub nom. Bigelow-Sanford Carpet Co., CCH Trade Reg.Rep. Transfer Binder, 1963—1965, 16,800, at p. 21755 (F.T.C.Dkt. 7634, Feb. 10, 1964): 'Both the courts and the Commission have consistently denied the shelter of the (meeting competition) defense to sellers whose product, because of * * * intense public demand, normally commands a price higher than that usually received by sellers of competitive goods'; Standard Brands, Inc., 46 F.T.C. 1485, 1495; Gerber Products Co. v. Beech-Nut Life Savers, Inc., 160 F.Supp. 916, 920, 921—922 (D.C.S.D.N.Y.). Cf. Porto Rican American Tobacco Co. of Porto Rico v. American Tobacco Co., 30 F.2d 234, 237 (C.A.2d Cir.). In the present case, the Court of Appeals for the Fifth Circuit specifically refused to 'approve of the Commission's construing the Act inconsistently from one case to the next, as appears most advantageous to its position in a particular case.' 339 F.2d 133, at 139. See the comment of Commissioner Mason: 'First the Commission finds you guilty of price discrimination by disregarding popularity of goods, and finds the grade and quality of the commodities in question are the same; then they knock out your meeting of competition defense because your goods are more popular than others, even if the commodities in question are of like grade and quality.' Discriminate in Price between Different Purchasers of Commodities of Like Grade, Quality and Popularity, Proc. Am. Bar Assn. Section of Antitrust Law 82, 91—92 (Aug. 1953). Cf. Eine Kleine Juristische Schlummergeschichte, 79 Harv.L.Rev. 921, 928—929 (1966).
16
The Court's brief discussion of the adverse economic effect of the Fifth Circuit's ruling is concerned primarily with the supposed injury to secondary line competition. The present proceeding arose as the direct result of the primary line injury caused to midwestern packers of private label evaporated milk when Borden expanded its plants in Tennessee and South Carolina to include private label operation, but the opinion of the Court nowhere discusses such competition.
17
It is not clear that the 'injury to competition' and 'cost justification' issues will be reached on the remand. As the opinion of the Court suggests, ante, p. 646, the existence of price discrimination is an issue that remains open in the Court of Appeals. If Borden is able to demonstrate that the price differential between its premium and private label brands is not a price discrimination, the inquiry by the Commission is at an end, and no issue of injury to competition or cost justification under § 2(a) is reached. Nothing in FTC v. Anheuser-Busch, Inc., 363 U.S. 536, 80 S.Ct. 1267, 4 L.Ed.2d 1385, a case concerned only with territorial price discrimination, requires an equation in all circumstances between a price differential and price discrimination. So long as Borden makes private label brands available to all customers of its premium milk, it is unlikely that price discrimination within the meaning of § 2(a) can be made out. Boss Mfg. Co. v. Payne Glove Co., 71 F.2d 768, 770—771 (C.A.8th Cir.); Austin, Price Discrimination and Related Problems under the Robinson-Patman Act 21 (2d ed. 1959); Rowe, Price Discrimination Under the Robinson-Patman Act, supra, at 97-99.
18
Cf. Adelman, Price Discrimination as Treated in the Attorney General's Report, 104 U.Pa.L.Rev. 222, 228—230 (1955).
19
See Staff Report to the Federal Trade Commission, Economic Inquiry into Food Marketing, Part II, The Frozen Fruit, Juice and Vegetable Industry (1962); Jordan, supra, n. 8, at 413 417.
20
The Commission concedes that there is no evidence in the record that Borden refused to sell private label milk to any customer who specifically requested it. Borden's private label business in the period covered by these proceedings was substantial. In 1957, Borden sold 4,300,000 cases of its premium brand evaporated milk and 1,100,000 cases of private label milk (government and export business excluded); net sales of these products were $27,600,000 and $5,700,000 respectively. A major source of Borden's private label business was provided by cooperative associations of wholesalers and retailers, so that, in fact, there was an opportunity for large numbers of small retailers to compete in the sale of private label brands of evaporated milk obtained from Borden. One such group, whose purchases accounted for 11% of Borden's private label volume in 1957, had more than 1,000 retailer members. Not all retailers, however, availed themselves of the opportunity to market private label milk. One wholesaler testified that, a year after his private label brand had been offered to the 600 retail grocers in his service area, only 50 of the grocers had become regular customers.
| 78
|
383 U.S. 687
86 S.Ct. 1118
16 L.Ed.2d 185
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.Walter F. TELLIER et ux.
No. 351.
Argued Jan. 27, 1966.
Decided March 24, 1966.
Jack S. Levin, Washington, D.C., for petitioner.
Michael Kaminsky, New York City, for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
The question presented in this case is whether expenses incurred by a taxpayer in the unsuccessful defense of a criminal prosecution may qualify for deduction from taxable income under § 162(a) of the Internal Revenue Code of 1954, which allows a deduction of 'all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business * * *.'1 The respondent Walter F. Tellier was engaged in the business of underwriting the public sale of stock offerings and purchasing securities for resale to customers. In 1956 he was brought to trial upon a 36-count indictment that charged him with violating the fraud section of the Securities Act of 19332 and the mail fraud statute,3 and with conspiring to violate those statutes.4 He was found guilty on all counts and was sentenced to pay an $18,000 fine and to serve four and a half years in prison. The judgment of conviction was affirmed on appeal.5 In his unsuccessful defense of this criminal prosecution, the respondent incurred and paid $22,964.20 in legal expenses in 1956. He claimed a deduction for that amount on his federal income tax return for that year. The Commissioner disallowed the deduction and was sustained by the Tax Court. T.C.Memo. 1963—212, 22 CCH Tax Ct.Mem. 1062. The Court of Appeals for the Second Circuit reversed in a unanimous en banc decision, 342 F.2d 690, and we granted certiorari. 382 U.S. 808, 86 S.Ct. 81, 15 L.Ed.2d 58. We affirm the judgment of the Court of Appeals.
2
There can be no serious question that the payments deducted by the respondent were expenses of his securities business under the decisions of this Court, and the Commissioner does not contend otherwise. In United States v. Gilmore, 372 U.S. 39, 83 S.Ct. 623, 9 L.Ed.2d 570, we held that 'the origin and character of the claim with respect to which an expense was incurred, rather than its potential consequences upon the fortunes of the taxpayer, is the controlling basic test of whether the expense was 'business' or 'personal" within the meaning of § 162(a). 372 U.S., at 49, 83 S.Ct., at 629. Cf. Kornhauser v. United States, 276 U.S. 145, 153, 48 S.Ct. 219, 220, 72 L.Ed. 505; Deputy v. du Pont, 308 U.S. 488, 494, 496, 60 S.Ct. 363, 366, 367, 84 L.Ed. 416. The criminal charges against the respondent found their source in his business activities as a securities dealer. The respondent's legal fees, paid in defense against those charges, therefore clearly qualify under Gilmore as 'expenses paid or incurred * * * in carrying on any trade or business' within the meaning of § 162(a).
3
The Commissioner also concedes that the respondent's legal expenses were 'ordinary' and 'necessary' expenses within the meaning of § 162(a). Our decisions have consistently construed the term 'necessary' as imposing only the minimal requirement that the expense be 'appropriate and helpful' for 'the development of the (taxpayer's) business.' Welch v. Helvering, 290 U.S. 111, 113, 54 S.Ct. 8, 9, 78 L.Ed. 212; Cf. Kornhauser v. United States, supra, 276 U.S. at 152, 48 S.Ct., at 220; Lilly v. Commissioner, 343 U.S. 90, 93—94, 72 S.Ct. 497, 499, 96 L.Ed. 769; Commissioner v. Heininger, 320 U.S. 467, 471, 64 S.Ct. 249, 252, 88 L.Ed. 171; McCulloch v. State of Maryland, 4 Wheat. 316, 413—415, 4 L.Ed. 579. The principal function of the term 'ordinary' in § 162(a) is to clarify the distinction, often difficult, between those expenses that are currently deductible and those that are in the nature of capital expenditures, which, if deductible at all, must be amortized over the useful life of the asset. Welch v. Helvering, supra, 290 U.S., at 113—116, 54 S.Ct., at 8—10.6 The legal expenses deducted by the respondent were not capital expenditures. They were incurred in his defense against charges of past criminal conduct, not in the acquisition of a capital asset. Our decisions establish that counsel fees comparable to those here involved are ordinary business expenses, even though a 'lawsuit affecting the safety of a business may happen once a lifetime.' Welch v. Helvering, supra, at 114, 54 S.Ct., at 9. Kornhauser v. United States, supra, 276 U.S., at 152—153, 48 S.Ct., at 220; cf. Trust of Bingham v. Commissioner, 325 U.S. 365, 376, 65 S.Ct. 1232, 1238, 89 L.Ed. 1670.7
4
It is therefore clear that the respondent's legal fees were deductible under § 162(a) if the provisions of that section are to be given their normal effection in this case. The Commissioner and the Tax Court determined, however, that even though the expenditures meet the literal requirements of § 162(a), their deduction must nevertheless be disallowed on the ground of public policy. That view finds considerable support in other administrative and judicial decisions.8 It finds no support, however, in any regulation or statute or in any decision of this Court, and we believe no such 'public policy' exception to the plain provisions of § 162(a) is warranted in the circumstances presented by this case.
5
We start with the proposition that the federal income tax is a tax on net income, not a sanction against wrongdoing. That principle has been firmly imbedded in the tax statute from the beginning. One familiar facet of the principle is the truism that the statute does not concern itself with the lawfulness of the income that it taxes. Income from a criminal enterprise is taxed at a rate no higher and no lower than income from more conventional sources. '(T)he fact that a business is unlawful (does not) exempt it from paying the taxes that if lawful it would have to pay.' United States v. Sullivan, 274 U.S. 259, 263, 47 S.Ct. 607, 71 L.Ed. 1037. See James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246.
6
With respect to deductions, the basic rule, with only a few limited and well-defined exceptions, is the same. During the Senate debate in 1913 on the bill that became the first modern income tax law, amendments were rejected that would have limited deductions for losses to those incurred in a 'legitimate' or 'lawful' trade or business. Senator Williams, who was in charge of the bill, stated on the floor of the Senate that
7
'(T)he object of this bill is to tax a man's net income; that is to say, what he has at the end of the year after deducting from his receipts his expenditures or losses. It is not to reform men's moral characters; that is not the object of the bill at all.
8
The tax is not levied for the purpose of restraining people from betting on horse races or upon 'futures,' but the tax is framed for the purpose of making a man pay upon his net income, his actual profit during the year. The law does not care where he got it from, so far as the tax is concerned, although the law may very properly care in another way.' 50 Cong.Rec. 3849.9
9
The application of this principle is reflected in several decisions of this Court. As recently as Commissioner v. Sullivan, 356 U.S. 27, 78 S.Ct. 512, 2 L.Ed.2d 559, we sustained the allowance of a deduction for rent and wages paid by the operators of a gambling enterprise, even though both the business itself and the specific rent and wage payments there in question were illegal under state law. In rejecting the Commissioner's contention that the illegality of the enterprise required disallowance of the deduction, we held that, were we to 'enforce as federal policy the rule espoused by the Commissioner in this case, we would come close to making this type of business taxable on the basis of its gross receipts, while all other business would be taxable on the basis of net income. If that choice is to be made, Congress should do it.' Id., at 29, 78 S.Ct., at 514. In Lilly v. Commissioner, 343 U.S. 90, 72 S.Ct. 497, 96 L.Ed. 769, the Court upheld deductions claimed by opticians for amounts paid to doctors who prescribed the eyeglasses that the opticians sold, although the Court was careful to disavow 'approval of the business ethics or public policy involved in the payments * * *.' 343 U.S., at 97, 72 S.Ct., at 501. And in Commissioner v. Heininger, 320 U.S. 467, 64 S.Ct. 249, 88 L.Ed. 171, a case akin to the one before us, the Court upheld deductions claimed by a dentist for lawyer's fees and other expenses incurred in unsuccessfully defending against an administrative fraud order issued by the Postmaster General.
10
Deduction of expenses falling within the general definition of § 162(a) may, to be sure, be disallowed by specific legislation, since deductions 'are a matter of grace and Congress can, of course, disallow them as it chooses.' Commissioner v. Sullivan, 356 U.S., at 28, 78 S.Ct., at 514.10 The Court has also given effect to a precise and longstanding Treasury Regulation prohibiting the deduction of a specified category of expenditures; an example is lobbying expenses, whose nondeductibility was supported by considerations not here present. Textile Mills Securities Corp. v. Commissioner, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249; Cammarano v. United States, 358 U.S. 498, 79 S.Ct. 524, 3 L.Ed.2d 462. But where Congress has been wholly silent, it is only in extremely limited circumstances that the Court has countenanced exceptions to the general principle reflected in the Sullivan, Lilly and Heininger decisions. Only where the allowance of a deduction would 'frustrate sharply defined national or state policies proscribing particular types of conduct' have we upheld its disallowance. Commissioner v. Heininger, 320 U.S., at 473, 64 S.Ct., at 253. Further, the 'policies frustrated must be national or state policies evidenced by some governmental declaration of them.' Lilly v. Commissioner, 343 U.S., at 97, 72 S.Ct., at 501. (Emphasis added.) Finally, the 'test of nondeductibility always is the severity and immediacy of the frustration resulting from allowance of the deduction.' Tank Truck Rentals v. Commissioner, 356 U.S. 30, 35, 78 S.Ct. 507, 510, 2 L.Ed.2d 562. In that case, as in Hoover Motor Express Co. v. United States, 356 U.S. 38, 78 S.Ct. 511, 2 L.Ed.2d 568, we upheld the disallowance of deductions claimed by taxpayers for fines and penalties imposed upon them for violating state penal statutes; to allow a deduction in those circumstances would have directly and substantially diluted the actual punishment imposed.
11
The present case falls far outside that sharply limited and carefully defined category. No public policy is offended when a man faced with serious criminal charges employs a lawyer to help in his defense. That is not 'proscribed conduct.' It is his constitutional right. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. In an adversary system of criminal justice, it is a basic of our public policy that a defendant in a criminal case have counsel to represent him.
12
Congress has authorized the imposition of severe punishment upon those found guilty of the serious criminal offenses with which the respondent was charged and of which he was convicted. But we can find no warrant for attaching to that punishment an additional financial burden that Congress has neither expressly nor implicitly directed.11 To deny a deduction for expenses incurred in the unsuccessful defense of a criminal prosecution would impose such a burden in a measure dependent not on the seriousness of the offense or the actual sentence imposed by the court, but on the cost of the defense and the defendant's particular tax bracket. We decline to distort the income tax laws to serve a purpose for which they were neither intended nor designed by Congress.
13
The judgment is affirmed.
14
Affirmed.
1
'(a) In general.—There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business * * *.' 26 U.S.C. § 162.
2
48 Stat. 84, § 17, as amended, 15 U.S.C. § 77q(a).
3
18 U.S.C. § 1341.
4
18 U.S.C. § 371.
5
United States v. Tellier, 255 F.2d 441 (C.A.2d Cir.).
6
See Griswold, An Argument Against the Doctrine that Deductions Should Be Narrowly Construed as a Matter of Legislative Grace, 56 Harv.L.Rev. 1142, 1145; Wolfman, Professors and the 'Ordinary and Necessary' Business Expense, 112 U.Pa.L.Rev. 1089, 1111—1112.
7
See Brookes, Litigation Expenses and the Income Tax, 12 Tax L.Rev. 241.
8
See Sarah Backer, 1 B.T.A. 214; Norvin R. Lindheim, 2 B.T.A. 229; Thomas A. Joseph, 26 T.C. 562; Burroughs Bldg. Material Co. v. Commissioner, 47 F.2d 178 (C.A.2d Cir.); Commissioner v. Schwartz, 232 F.2d 94 (C.A.5th Cir.); Acker v. Commissioner, 258 F.2d 568 (C.A.6th Cir.); Bell v. Commissioner, 320 F.2d 953 (C.A.8th Cir.); Peckham v. Commissioner, 327 F.2d 855, 856 (C.A.4th Cir.); Port v. United States, 163 F.Supp. 645, 143 Ct.Cl. 334. See also Note, Business Expenses, Disallowance, and Public Policy: Some Problems of Sanctioning with the Internal Revenue Code, 72 Yale L.J. 108; 4 Mertens, Law of Federal Income Taxation § 25.49 ff. Compare Longhorn Portland Cement Co., 3 T.C. 310; G.C.M. 24377, 1944 Cum.Bull. 93; Lamont, Controversial Aspects of Ordinary and Necessary Business Expense, 42 Taxes 808, 833—834.
9
In challenging the amendments, Senator Williams also stated:
'In other words, you are going to count the man as having money which he has not got, because he has lost it in a way that you do not approve of.' 50 Cong.Rec. 3850.
10
Specific legislation denying deductions for payments that violate public policy is not unknown. E.g., Internal Revenue Code of 1954, § 162(c) (disallowance of deduction for payments to officials and employees of foreign countries in circumstances where the payments would be illegal if federal laws were applicable; cf. Treas.Reg. § 1.162—18); § 165(d) (deduction for wagering losses limited to extent of wagering gains). See also Stabilization Act of 1942, § 5(a), 56 Stat. 767, 50 U.S.C.App. § 965(a) (1946 ed.), Defense Production Act of 1950, § 405(a), 64 Stat. 807, as amended, c. 275, § 104(i), 65 Stat. 136 (1951), 50 U.S.C.App. § 2105(a) (1952 ed.), and Defense Production Act of 1950, § 405(b), 64 Stat. 807, 50 U.S.C.App. § 2105(b) (1952 ed.) (general authority in President to prescribe extent to which payments violating price and wage regulations should be disregarded by government agencies, including the Internal Revenue Service; see Rev.Rul. 56—180, 1956—1 Cum.Bull. 94). Cf. Treas.Reg. § 1.162—1(a), which provides that 'Penalty payments with respect to Federal taxes, whether on account of negligence, delinquency, or fraud, are not deductible from gross income'; Joint Committee on Internal Revenue Taxation, Staff Study of Income Tax Treatment of Treble Damage Payments under the Antitrust Laws, Nov. 1, 1965, p. 16 (proposal that § 162 be amended to deny deductions for certain fines, penalties, treble-damage payments, bribes, and kickbacks).
11
Cf. Paul, The Use of Public Policy by the Commissioner in Disallowing Deductions, 1954 So.Calif.Tax Inst. 715, 730—731: '* * * Section 23(a)(1)(A) (the predecessor of § 162(a)) is not an essay in morality, designed to encourage virtue and discourage sin. It 'was not contrived as an arm of the law to enforce State criminal statutes * * *.' Nor was it contrived to implement the various regulatory statutes which Congress has from time to time enacted. The provision is more modestly concerned with 'commercial net income'—a businessman's net accretion in wealth during the taxable year after due allowance for the operating costs of the business. * * * There is no evidence in the Section of an attempt to punish taxpayers * * * when the Commissioner feels that a state or federal statute has been flouted. The statute hardly operates 'in a vacuum,' if it serves its own vital function and leaves other problems to other statutes.'
| 1112
|
383 U.S. 696
86 S.Ct. 1107
16 L.Ed.2d 192
INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW), AFL-CIO, Petitioner,v.HOOSIER CARDINAL CORPORATION.
No. 387.
Argued Jan. 27, 1966.
Decided March 24, 1966.
Stephen I. Schlossberg, Washington, D.C., for petitioner.
Harry P. Dees, Evansville, Ind., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
Section 301 of the Labor Management Relations Act, 1947, confers jurisdiction upon the federal district courts over suits upon collective bargaining contracts.1 Nowhere in the Act, however, is there a provision for any time limitation upon the bringing of an action under § 301. The questions presented by this case arise because of the absence of such a provision.
2
The petitioner union and the respondent company were parties to a collective bargaining contract within the purview of § 301. The contract contained a section governing vacations. One clause in this section dealt with payment of accumulated vacation pay, by providing: 'Employees who qualified for a vacation in the pervious year and whose employment is terminated for any reason before the vacation is taken will be paid that vacation at time of termination.' On June 1, 1957, prior to the expiration of the contract, the company terminated the employment of employees covered by the agreement, but it did not pay them any accumulated vacation pay. Since that date, two lawsuits have been brought to recover amounts allegedly due. The first was a class action in early 1958, brought against the company in an Indiana court, but the court ruled that such an action was impermissible under Indiana law. In an attempt to remedy this pleading defect, the former employees assigned their vacation pay claims to a union representative who then filed an amended complaint, but this form of action, too, was held improper under Indiana law. Thereafter, by further amended complaints, the employees sought to reform and reinstitute the class action, but once again the trial court held the complaint insufficient as a matter of state law. The court dismissed the suit in June 1960, and the judgment of dismissal was affirmed on appeal. Johnson v. Hoosier Cardinal Corp., 134 Ind.App. 477, 189 N.E.2d 592.
3
Almost four years after the dismissal of that lawsuit by the Indiana trial court, and almost seven years after the employees had left the company, the union filed the present action in the United States District Court for the Southern District of Indiana. On the company's motion, the trial court dismissed the complaint, concluding that the suit was barred by a six-year Indiana statute of limitations. The court regarded this action as based partly upon the written collective bargaining agreement and partly upon the oral employment contract each employee had made, and it held that Indiana would apply to such a hybrid action its six-year statute governing contracts not in writing. Ind.Stat.Ann. § 2—601 (1965 Supp.). 235 F.Supp. 183. The Court of Appeals for the Seventh Circuit affirmed, 346 P.2d 242, and we granted certiorari, 382 U.S. 808, 86 S.Ct. 87, 15 L.Ed.2d 58.
4
We note at the outset that this action was properly brought by the union under § 301. There is no merit to the contention that a union may not sue to recover wages or vacation pay claimed by its members pursuant to the terms of a collective bargaining contract. Such a suit is among those '(s)uits for violation of contracts between an employer and a labor organization' that § 301 was designed to permit. This conclusion is unimpaired by the fact that each worker's claim may also depend upon the existence of his individual contract of employment. See J. I. Case Co. v. National Labor Relations Board, 321 U.S. 332, 335—336, 64 S.Ct. 576, 88 L.Ed. 762. In Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246, we rejected the view, once held for carying reasons by a majority of this Court, Association of Westinghouse Salaried Employees v. Westinghouse Corp., 348 U.S. 437, 75 S.Ct. 488, 99 L.Ed. 510, 'that § 301 did not give the * * * courts jurisdiction over a suit brought by a union to enforce employee rights * * * characterized as * * * arising 'from separate hiring contracts between the employer and each employee." 371 U.S., at 198, 83 S.Ct. at 269. Alghough the Smith case was brought by an individual worker, there is every reason to recognize the union's standing to vindicate employee rights under a contract the union obtained. Such recognition is fully consistent with the language of § 301(b): 'Any * * * labor organization may sue * * * in behalf of the employees whom it represents in the courts of the United States.' 61 Stat. 156, 29 U.S.C. § 185(b) (1964 ed.).2 And indeed, the union's standing to vindicate employee rights under § 301 implements no more than the established doctrine that the union's role in the collective bargaining process does not end with the making of the contract.3
5
Since this suit was properly brought under § 301, the question of its timeliness is squarely presented. It is clearly a federal question, for in § 301 suits the applicable law is 'federal law, which the courts must fashion from the policy of our national labor laws.' Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 918, 1 L.Ed.2d 972. Relying upon that statement and upon the coordinate principle that 'incompatible doctrines of local law must give way to principles of federal labor law,' Local 174 Teamsters, Chauffeurs, etc. v. Lucas Flour Co., 369 U.S. 95, 102, 82 S.Ct. 571, 7 L.Ed.2d 593, the union contends that this suit cannot be barred by a statute of limitations enacted by a State. We are urged instead to devise a uniform time limitation to close the statutory gap left by Congress. But the teaching of our cases does not require so bald a form of judicial innovation. Lincoln Mills instructs that, in fashioning federal law, the 'range of judicial inventiveness will be determined by the nature of the problem.' 353 U.S., at 457, 77 S.Ct. at 918. We do not question that there are problems so vital to the implementation of federal labor policy that they will command a high degree of inventiveness from the courts. The problem presented here, however, is not of that nature.
6
It is true that if state limitations provisions govern § 301 suits, these suits will lack a uniform standard of timeliness. It is also true that the subject matter of § 301 is 'peculiarly one that calls for uniform law.' Local 174 Teamsters, Chauffeurs, etc. v. Lucas Flour Co., supra, 369 U.S. at 103, 82 S.Ct. at 576. Our cases have defined the need for uniformity, however, in terms that are largely inapplicable here:
7
'The possibility that individual contract terms might have different meanings under (two systems of law) would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements. Because neither party could be certain of the rights which it had obtained or conceded, the process of negotiating an agreement would be made immeasurably more difficult by the necessity of trying to formulate contract provisions in such a way as to contain the same meaning under two or more systems of law which might someday be invoked in enforcing the contract. Once the collective bargain was made, the possibility of conflicting substantive interpretation under competing legal systems would tend to stimulate and prolong disputes as to its interpretation. Indeed, the existence of possibly conflicting legal concepts might substantially impede the parties' willingness to agree to contract terms providing for final arbitral or judicial resolution of disputes.
8
'* * * The ordering and adjusting of competing interests through a process of free and voluntary collective bargaining is the keystone of the federal scheme to promote industrial peace. State law which frustrates the effort of Congress to stimulate the smooth functioning of that process thus strikes at the very core of federal labor policy.' Local 174 Teamsters, Chauffeurs, etc. v. Lucas Flour Co., 369 U.S. 95, 103—104, 82 S.Ct. 571, 577.
9
The need for uniformity, then, is greatest where its absence would threaten the smooth functioning of those consensual processes that federal labor law is chiefly designed to promote the formation of the collective agreement and the private settlement of disputes under it. For the most part, statutes of limitations come into play only when these processes have already broken down. Lack of uniformity in this area is therefore unlikely to frustrate in any important way the achievement of any significant goal of labor policy. Thus, although a uniform limitations provision for § 301 suits might well constitute a desirable statutory addition, there is no justification for the drastic sort of judicial legislation that is urged upon us.4 See Smith v. Evening News Assn., supra, 371 U.S. at 203, 83 S.Ct., at 271 (Black, J., dissenting).
10
That Congress did not provide a uniform limitations provision for § 301 suits is not an argument for judicially creating one, unless we ignore the context of this legislative omission. It is clear that Congress gave attention to limitations problems in the Labor Management Relations Act, 1947; it enacted a six months' provision to govern unfair labor practice proceedings, 61 Stat. 146, 29 U.S.C. § 160(b) (1964 ed.), and it did so only after appreciable controversy.5 In this context, and against the background of the relationship between Congress and the courts on the question of limitations provisions, it cannot be fairly inferred that when Congress left § 301 without a uniform time limitation, it did so in the expectation that the courts would invent one. As early as 1830, this Court held that state statutes of limitations govern the timeliness of federal causes of action unless Congress has specifically provided otherwise. McCluny v. Silliman, 3 Pet. 270, 277, 7 L.Ed. 676. In 1895, the question was re-examined in another context, but the conclusion remained firm. Campbell v. City of Haverhill, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed. 280. Since that time, state statutes have repeatedly supplied the periods of limitations for federal causes of action when federal legislation has been silent on the question.6 E.g., McClaine v. Rankin, 197 U.S. 154, 25 S.Ct. 410, 49 L.Ed. 702; Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602 (National Bank Act); Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241 (Sherman Act); O'Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (Civil Rights Act of 1870); Englander Motors, Inc. v. Ford Motor Co., 293 F.2d 802 (C.A.6th Cir.) (Clayton Act); but see Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743. (Federal Farm Loan Act). Yet when Congress has disagreed with such an interpretation of its silence, it was spoken to overturn it by enacting a uniform period of limitations. E.g., 69 Stat. 283, 15 U.S.C. § 15b (1964 ed.) (Clayton Act); 35 U.S.C. § 286 (Patent Act). See also Herget v. Central Bank Co., 324 U.S. 4, 65 S.Ct. 505, 89 L.Ed. 656. Against this background, we cannot take the omission in the present statute as a license to judicially devise a uniform time limitation for § 301 suits.
11
Accordingly, since no federal provision governs, we hold that the timeliness of a § 301 suit, such as the present one, is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations.7 This leaves two subsidiary questions to be decided. Which of Indiana's limitations provisions governs?8 Does any tolling principle preserve the timeliness of this action?
12
The union argues that if the timeliness of this action is to be determined by reference to Indiana statutes, federal law precludes reference to the Indiana six-year provision governing contracts not in writing. Reference must be made instead, it is urged, to the Indiana 20-year provision governing written contracts. Ind.Stat.Ann. § 2—602 (1965 Supp.). This contention rests on the view that under federal law this § 301 suit must be regarded as exclusively bottomed upon the written collective bargaining agreement. We agree that the characterization of this action for the purpose of selecting the appropriate state limitations provision is ultimately a question of federal law. Textile Workers Union of America v. Lincoln Mills, of Alabama supra; McClaine v. Rankin, supra. But there is no reason to reject the characterization that state law would impose unless that characterization is unreasonable or otherwise inconsistent with national labor policy, Cf. Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 210, 66 S.Ct. 992, 90 L.Ed. 1172; De Sylva v. Ballentine, 351 U.S. 570, 580—582, 76 S.Ct. 974, 979—980, 100 L.Ed. 1415.
13
Applying this principle, we cannot agree that federal law requires that this action be regarded as exclusively based upon a written contract. For purposes of § 301 jurisdiction, we have rejected the view that a suit such as this is based solely upon the separate hiring contracts, frequently oral, between the employer and each employee. Smith v. Evening News, Assn., supra. It does not follow, however, that the separate contracts of employment may not be taken into account in characterizing the nature of a specific § 301 suit for the purpose of selecting the appropriate state limitations provision. Indeed, as the present case indicates, consideration of the separate contracts for that purpose is entirely acceptable. The petitioner seeks damages based upon an alleged breach of the vacation pay clause in a written collective bargaining agreement. Proof of the breach and of the measure of damages, however, both depend upon proof of the existence and duration of separate employment contracts between the employer and each of the aggrieved employees. Hence, this § 301 suit may fairly be characterized as one not exclusively based upon a written contract.
14
Moreover, the characterization that Indiana law imposes upon this action does not lead to any conflict with federal labor policy. Indeed, to the extent that a policy is manifest in the Labor Management Relations Act, it supports acceptance of the characterization adopted here. The six months' provision governing unfair labor practice proceedings, 61 Stat. 146, 29 U.S.C. § 160(b), suggests that relatively rapid disposition of labor disputes is a goal of federal labor law. Since state statutes of limitations governing contracts not exclusively in writing are generally shorter than those applicable to wholly written agreements, their applicability to § 301 actions comports with that goal. There may, of course, be § 301 actions that can only be characterized fairly as based exclusively upon a written agreement. But since many § 301 actions for wages or other individual benefits will concern employment contracts of the sort involved here, there is no reason to inhibit the achievement of an identifiable goal of labor policy by precluding application of the generally shorter limitations provisions.9
15
Accordingly, we accept the District Court's application of the six-year Indiana statute of limitations to this action. Cf. Bernhardt v. Polygraphic Co., 350 U.S. 198, 204—205, 76 S.Ct. 273, 276, 277, 100 L.Ed. 199; Steele v. General Mills, 329 U.S. 433, 438, 67 S.Ct. 439, 442, 91 L.Ed. 402. Thus, since this federal lawsuit was not filed until almost seven years after the cause of action accrued, the cause is barred by the six-year statute unless that statute was somehow tolled by reason of the particularized circumstances of this case.10
16
The contention that some tolling principle saves the life of this action was raised for the first time in this Court. In any event, we find the contention without merit. In Burnett v. New York Central R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941, we held that the bringing of a timely action under the Federal Employers' Liability Act in a state court, even though venue was improper, served to toll the statute of limitations contained in that Act. The primary underprinning of Burnett, however, is wholly lacking here. As the Court noted in that case, a tolling principle was necessary to implement the national policy of a uniform time bar clearly expressed by Congress when it enacted the FELA limitations provision. 380 U.S. at 434, 85 S.Ct. at 1058. Section 301 of the Labor Management Relations Act establishes no such policy of uniformity expressed in a national limitations provision. Moreover, unlike the plaintiff in Burnett who could no longer bring a timely federal action after the state court dismissed his complaint, the union here had a full three years to bring this lawsuit in federal court after the dismissal of the state court action.11 Under these circumstances, we have no difficulty in concluding that this cause of action expired in June 1963, six years after it arose.
17
Affirmed.
18
Mr. Justice WHITE, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.
19
Certain principles are undisputed in this case. The period of limitations for § 301 suits is to be determined by federal law; and, since Congress has made no express provision for any time limitation, this Court must fashion the governing rule. By adopting the statutes of the several States, the Court creates 50 or more different statutes of limitations1 rather than fashioning a uniform rule after consideration of relevant federal and state statutes.
20
The Court justifies its decision in part by reliance on cases decided under the Rules of Decisions Act, 28 U.S.C. § 1652 (1964 ed.), which interpreted 'the silence of Congress * * * to mean that it is federal policy to adopt the local law of limitation.' Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 584, 99 L.Ed. 743; see, e.g., Chattanooga Foundry v. Atlanta, 203 U.S. 390, 397, 27 S.Ct. 65, 66, 51 L.Ed. 241; Campbell v. City of Haverhill, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed. 280; McCluny v. Silliman, 3 Pet. 270, 277, 7 L.Ed. 676. But the cases also establish that the silence of Congress is not to be read as automatically putting an imprimatur on state law. Rather, state law is applied only because it supplements and fulfills federal policy, and the ultimate question is what federal policy requires. See Board of County Comm'rs of the County of Jackson, Kan. v. United States, 308 U.S. 343, 350—352, 60 S.Ct. 285, 289, 84 L.Ed. 313; Holmberg v. Armbrecht, 327 U.S. 392, 394—395, 66 S.Ct. 582, 583, 584, 90 L.Ed. 743; Association of Westinghouse Salaried Employees v. Westinghouse Corp., 348 U.S. 437, 463, 75 S.Ct. 488, 502, 99 L.Ed. 510 (Reed, J., concurring).
21
More specifically, it is quite clear that with respect to § 301 suits congressional silence extends not just to the question of limitations but encompasses the entirety of the governing legal principles. Rather than inferring from congressional silence that state law was to govern, Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, held that the federal courts were to 'fashion from the policy of our national labor laws' general federal law applicable to suits on collective bargaining agreements. Id., at 456, 77 S.Ct. at 918. Although Lincoln Mills recognized that 'state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy,' id., at 457, 77 S.Ct. at 918, it did not intimate in any way that federal policy would be furthered by the adoption of 50 different state rules. To the contrary, subsequent decisions have recognized that '(c) omprehensiveness is inherent in the process by which the law is to be formulated under the mandate of Lincoln Mills' and that, '(m)ore important, the subject matter of § 301(a) 'is peculiarly one that calls for uniform law." Local 174 Teamsters, Chauffeurs, etc. v. Lucas Flour Co., 369 U.S. 95, 103, 82 S.Ct. 571, 576, 7 L.Ed.2d 593. There is, therefore, no sound basis for saying that Congress by its silence on the limitations matter intended the state laws to apply or for adopting diverse state laws simply because of a reluctance to supply what Congress omitted. The courts are expected to develop the law of labor contracts, and this case represents only another task in this process.
22
The Court reasons, however, that to devise a uniform time limitation would be too 'bald a form of judicial innovation.' Ante, at p. 701. Cases defining a need for uniformity in § 301 suits are said to be limited to matters concerning which the possible application of varying systems of law "would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements." Ante, at pp. 701-702. Since, according to the majority, the lack of a uniform statute of limitations would generally not have that effect,2 the Court concludes that although such a uniform provision 'might well constitute a desirable statutory addition, there is no justification for the drastic sort of judicial legislation that is urged upon us.' Ante, at pp. 702-703.
23
The Court is undoubtedly correct in stating that a uniform limitations period would be desirable. Suppose, for example, that the collective bargaining contract in dispute was one made in Detroit for a multi-state unit of truckdrivers and that, as is true in this case, 100 of the covered employees were discharged without payment of accumulated vacation pay. Suppose further that some of the employees were hired in Chicago and discharged in Indiana while others were hired in St. Louis, Cleveland, and Terre Haute and were discharged in Illinois, Michigan, and Iowa (in whatever combinations are preferred). Suppose, finally, that some sue in Indiana, some in other States, some in federal court, and some in state court. Simple justice dictates in such a situation that the right of employees in different States to assert their federal claim should be equally available. Clearly there is no sense or justice in referring to 50 or more different statutes of limitations so that one employee may be barred after one year while another employee may sue any time within six years. Nor is there any reason why an employer operating under the contract in one State should be bothered with stale claims already barred as against other employers in other States.
24
Moreover, the Court's decision creates unnecessary complexities and opportunities for vexatious litigation, some of which are reflected in the Court's opinion. Thus the Court notes that in a situation involving multi-state contacts, such as the example given above, a federal court hearing the case would be required to decide whether to apply a federal, or the forum State's, conflict of laws rules to select the State of governing law. If this Court ultimately holds that a federal conflict of laws rule is to govern in federal court suits, the additional question will be presented of whether the federal conflict rule must also be applied by state courts or whether they may continue to apply their own conflict of laws rule. Whatever conflict of laws rule, state or federal, is selected, there will remain the difficult task of applying that rule to find the State whose limitations statute is to control. In cases not involving multi-state contacts, the court may have to choose between two or more state statutes; here the choice is between the limitations period for suits on written contracts and the period for suits on oral contracts. Under today's decision, this choice is to be governed by the State's characterization of the federal action (or a federal court's Delphic opinion of what that characterization would be), 'unless that characterization is unreasonable or otherwise inconsistent with national labor policy.' Ante, at p. 706. The governing state limitations statute, having finally been determined, is to be applied unless the period is 'unusually short or long.'3 Ante, at p. 707 n. 9. The problems we have indicated are merely illustrative of the complex questions that must be decided under the Court's approach before it can be determined which of several competing state statutes is to be applied and whether such application is reasonable when tested by the federal labor policy; undoubtedly the fertile imagination of counsel will conceive additional intricacies. The desirability of a single, uniform, federal statute to further justice and to avoid such litigation-creating complexities was of course recognized by Congress in passing the statutes, to which the majority refers, that overruled in particular areas past refusals of this Court to fashion such a uniform rule.
25
The case for the Court's decision thus ultimately comes down to the proposition that fashioning a uniform federal statute would involve too bald an exercise of judicial innovation. This is an argument I have difficulty in fathoming. Courts have not always been reluctant to 'create' statutes of limitations, the commonlaw doctrine of prescription by which judgments are presumed to have been paid after the lapse of 20 years, see Gaines v. Miller, 111 U.S. 395, 399, 4 S.Ct. 426, 427, 28 L.Ed. 466; McElmoyle for Use of Bailey v. Cohen, 13 Pet. 312, 327, 10 L.Ed. 177, being just one example. In equity they have applied the doctrine of laches, see Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 99 L.Ed. 743. But here there is no dispute concerning whether a statute of limitations is to be fashioned—the choice is between one statute or 50. If the Court is to develop the substantive law of labor contracts, which it has undertaken to do with the blessing of Congress, it seems odd that the Court should balk at establishing a single limitations period, drawn from any of the sources available to it, including the relevant federal and state statutes. I undertake no such canvass here,4 but think the Court should do so. I therefore dissent.
1
We use the term 'collective bargaining contracts' for convenience only, and do not intend to suggest that § 301 is limited to such contracts. See Retail Clerks Intern. Ass'n, etc., v. Lion Dry Goods, 369 U.S. 17, 82 S.Ct. 541, 7 L.Ed.2d 503. Section 301 provides:
'(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
'(b) Any labor organization which represents employees in an industry affecting commerce as defined in this Act and any employer whose activities affect commerce as defined in this Act shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets.
'(c) For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members.
'(d) The service of summons, subpena, or other legal process of any court of the United States upon an officer or agent of a labor organization, in his capacity as such, shall constitute service upon the labor organization.
'(e) For the purposes of this section, in determining whether any person is acting as an 'agent' of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.' 61 Stat. 156—157, 29 U.S.C. § 185 (1964 ed.).
2
See also Rule 17(a) of the Federal Rules of Civil Procedure; Dowd Box v. Courtney, 368 U.S. 502, 504, 82 S.Ct. 519, 7 L.Ed.2d 483; United Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424.
3
See, e.g., Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80; Comment, 28 U.Chi.L.Rev. 707, 716.
That the employees in this case did not assign their claims to the union presents no barrier to the union's standing to sue in their behalf. Such a technical requirement would conflict with one of the widely recognized purposes of Congress in enacting § 301 the elimination of common-law procedural obstacles to suits for breach of collective bargaining agreements. See, e.g., Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 451, 77 S.Ct. 912, 915. Meltzer, The Supreme Court, Congress, and State Jurisdiction Over Labor Relations: II, 59 Col.L.Rev. 269.
4
Our cases have spoken of the federal law applicable to § 301 suits as 'substantive,' see, e.g., Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. at 456, 77 S.Ct. at 917, and the need for uniformity in the 'substantive principles' that govern these suits. See Local 174 Teamsters, Chauffeurs, etc. v. Lucas Flour Co., 369 U.S. at 103, 82 S.Ct. at 596. In the view we take of the problem presented here, we need not decide whether statutes of limitations are 'substantive' or 'procedural.' See Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99, 65 S.Ct. 1465, 89 L.Ed. 2079; Burnett v. New York Central R. Co., 380 U.S. 424, 427, note 2, 85 S.Ct. 1050, 1054. Nor need we rigidly classify them as 'primary' or 'remedial.' To the extent that these terms are useful, we need only notice that lack of uniformity in limitations provisions is unlikely to have substantial effect upon the private definition or effectuation of 'substantive' or 'primary' rights in the collective bargaining process. See Wellington, Labor and the Federal System, 26 U.Chi.L.Rev. 542, 556—559.
5
Compare, e.g., the remarks of Senator Wagner, 93 Cong.Rec. 3323, and those of Senator Murray, 93 Cong.Rec. 4030, with the remarks of Senator Smith, 93 Cong.Rec. 4283.
6
In McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 3 L.Ed.2d 1272, this Court held that, 'where an action for unseaworthiness is combined with an action under the Jones Act a court cannot apply to the former a shorter period of limitations than Congress has prescribed for the latter.' 357 U.S. at 224, 78 S.Ct. at 1204. The McAllister case represents no departure from the tradition discussed in the text. The Court's decision rested on the peculiar configuration of the federal maritime remedies. A seaman suing for both unseaworthiness and Jones Act negligence must do so in a single proceeding. Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069. The Court had no occasion in McAllister to consider whether a state period longer than that provided in the Jones Act could be applied. 357 U.S. at 227, 78 S.Ct. at 1250 (Brennan, J., concurring).
7
The present suit is essentially an action for damages caused by an alleged breach on an employer's obligation embodied in a collective bargaining agreement. Such an action closely resembles an action for breach of contract cognizable at common law. Whether other § 301 suits different from the present one might call for the application of other rules on timeliness, we are not required to decide, and we indicate no view whatsoever on that question. See, e.g., Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 99 L.Ed. 743; Moviecolor Limited v. Eastman Kodak Co., 288 F.2d 80 (C.A.2d Cir.); 2 Moore Federal Practice 3.07(1)—(3), at 740—764 (2d ed. 1965); Hill, State Procedural Law in Federal Nondiversity Litigation, 69 Harv.L.Rev. 66, 111—114.
8
The record indicates that Indiana is both the forum State and the State in which all operative events occurred. Neither party has suggested that the limitations provision of another State is relevant. There is therefore no occasion to consider whether such a choice of law should be made in accord with the principle of Klaxon Co. v. Stentor Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; or by operation of a different federal conflict of laws rule. See Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492; De Sylva v. Ballentine, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415; Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 67 S.Ct. 237, 91 L.Ed. 162; McKenzie v. Irving Trust Co., 323 U.S. 365, 65 S.Ct. 405, 89 L.Ed. 305; D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956. See also discussion in Hart & Wechsler, The Federal Courts and the Federal System 696 et seq.
9
Other questions would be raised if this case presented a state law characterization of a § 301 suit that reasonably described the nature of the cause of action, but required application of an unusually short or long limitations period. See, e.g., N.M.Stat. § 59—3—4 (1953) (an action for wages 'must be commenced within sixth (60) days from the date of discharge * * *'). See Campbell v. City of Haverhill, 155 U.S. 610, 615, 15 S.Ct. 217, 219, 39 L.Ed. 280; Caldwell v. Alabama Dry Dock & Shipbuilding Co., 161 F.2d 83 (C.A.5th Cir.); Mishkin, The Variousness of 'Federal Law': Competence and Discretion in the Choice of National and State Rules for Decision, 105 U.Pa.L.Rev. 797, 805—806.
10
Neither party has suggested that the cause of action 'accrued' on any date other than June 1, 1957, when the company terminated the employees' jobs. Cf. Rawlings v. Ray, 312 U.S. 96, 61 S.Ct. 473, 85 L.Ed. 605; Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602; Moviecolor Limited v. Eastman Kodak Co., 288 F.2d 80, 83, 90 A.L.R.2d 252 (C.A.2d Cir.).
11
It should be noted also that Indiana has a saving statute, Ind.Ann.Stat. § 2—608 (1946 Repl. Vol.), but the union has never contended that it preserves the timeliness of this suit.
1
The Court's approach adopts (and thereby creates as federal law) at least one limitations statute for each State and Territory. In many States it adopts a multitude of limitations provisions, each applicable to a particular type of § 301 suit. The Court's opinion suggests, for example, that had the present suit been 'exclusively based upon a written contract,' ante, at p. 706, the Indiana 20-year, rather than the six-year, statute would have governed.
2
However, limitations questions will have an impact on the negotiation and administration of the collective agreement in many instances—for example, if the parties decide to limit by contract the period for bringing suit. The laws of the several States vary with respect to the enforceability of such contractual limitations periods, particularly when it is asserted that the agreed period is unreasonable, see Williston on Contracts § 183, at 711, n. 10 (Jaeger 3d ed. 1957); Note, 63 Harv.L.Rev. 1177, 1181—1182 (1950). It may be assumed that, under the test advanced by the majority, uniform federal law will be fashioned to determine their validity, just as, at least in some circumstances, federal law will determine when the cause of action arose, see Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602; Rawlings v. Ray, 312 U.S. 96, 61 S.Ct. 473, 85 L.Ed. 605, and whether the running of limitations was tolled by fraudulent concealment, see Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 99 L.Ed. 743; Moviecolor Limited v. Eastman Kodak Co., 288 F.2d 80, 90 A.L.R.2d 252 (C.A.2d Cir. 1961).
3
Unfortunately the Court provides no enlightenment concerning where we are to look for a limitations period should the state statute be held unreasonable. Perhaps in extremis even the Court's approach will require the kind of innovation it now rejects.
4
Nor do I intimate any opinion concerning the tolling question mooted in the Court's opinion.
| 67
|
383 U.S. 663
86 S.Ct. 1079
16 L.Ed.2d 169
Annie E. HARPER et al., Appellants,v.VIRGINIA STATE BOARD OF ELECTIONS et al. Evelyn BUTTS, Appellant, v. Albertis HARRISON, Governor, et al.
Nos. 48, 655.
Argued Jan. 25 and 26, 1966.
Decided March 24, 1966.
Allison W. Brown, Jr., Washington, D.C., Robert L. Segar, Flint, Mich., and J. A. Jordan, Jr., Norfolk, Va., for appellants.
George D. Gibson, Richmond, Va., for appellees.
Sol. Gen. Thurgood Marshall, for the United States, as amicus curiae, by special leave of Court.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
These are suits by Virginia residents to have declared unconstitutional Virginia's poll tax.1 The three-judge District Court, feeling bound by our decision in Breedlove v. Suttles, 302 U.S. 277, 58 S.Ct. 205, 82 L.Ed. 252, dismissed the complaint. See 240 F.Supp. 270. The cases came here on appeal and we noted probable jurisdiction. 380 U.S. 930, 85 S.Ct. 942, 13 L.Ed.2d 819, 382 U.S. 806, 86 S.Ct. 94, 15 L.Ed.2d 57.
2
While the right to vote in federal elections is conferred by Art. I, § 2, of the Constitution (United States v. Classic, 313 U.S. 299, 314—315, 61 S.Ct. 1031, 1037, 85 L.Ed. 1368), the right to vote in state elections is nowhere expressly mentioned. It is argued that the right to vote in state elections is implicit, particularly by reason of the First Amendment and that it may not constitutionally be conditioned upon the payment of a tax or fee. Cf. Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 113, 63 S.Ct. 870, 875, 87 L.Ed. 1292.2 We do not stop to canvass the relation between voting and political expression. For it is enough to say that once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment. That is to say, the right of suffrage 'is subject to the imposition of state standards which are not discriminatory and which do not contravene any restriction that Congress, acting pursuant to its constitutional powers, has imposed.' Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 51, 79 S.Ct. 985, 990, 3 L.Ed.2d 1072. We were speaking there of a state literacy test which we sustained, warning that the result would be different if a literacy test, fair on its face, were used to discriminate against a class.3 Id., at 53, 79 S.Ct. at 990. But the Lassiter case does not govern the result here, because, unlike a poll tax, the 'ability to read and write * * * has some relation to standards designed to promote intelligent use of the ballot.' Id., at 51, 79 S.Ct. at 990.
3
We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.4 Our cases demonstrate that the Equal Protection Clause of the Fourteenth Amendment restrains the States from fixing voter qualifications which invidiously discriminate. Thus without questioning the power of a State to impose reasonable residence restrictions on the availability of the ballot (see Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817), we held in Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675, that a State may not deny the opportunity to vote to a bona fide resident merely because he is a member of the armed services. 'By forbidding a soldier ever to controvert the presumption of non-residence, the Texas Constitution imposes an invidious discrimination in violation of the Fourteenth Amendment.' Id., at 96, 85 S.Ct. at 780. And see Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817. Previously we had said that neither homesite nor occupation 'affords a permissible basis for distinguishing between qualified voters within the State.' Gray v. Sanders, 372 U.S. 368, 380, 83 S.Ct. 801, 808, 9 L.Ed.2d 821. We think the same must be true of requirements of wealth or affluence or payment of a fee.
4
Long ago in Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 the Court referred to 'the political franchise of voting' as a 'fundamental political right, because preservative of all rights.' Recently in Reynolds v. Sims, 377 U.S. 533, 561—562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506, we said, 'Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.' There we were considering charges that voters in one part of the State had greater representation per person in the State Legislature than voters in another part of the State. We concluded:
5
'A citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm. This is the clear and strong command of our Constitution's Equal Protection Clause. This is an essential part of the concept of a government of laws and not men. This is at the heart of Lincoln's vision of 'government of the people, by the people, (and) for the people.' The Equal Protection Clause demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races.' Id., at 568, 84 S.Ct. at 1385.
6
We say the same whether the citizen, otherwise qualified to vote, has $1.50 in his pocket or nothing at all, pays the fee or fails to pay it. The principle that denies the State the right to dilute a citizen's vote on account of his economic status or other such factors by analogy bars a system which excludes those unable to pay a fee to vote or who fail to pay.
7
It is argued that a State may exact fees from citizens for many different kinds of licenses; that if it can demand from all an equal fee for a driver's license,5 it can demand from all an equal poll tax for voting. But we must remember that the interest of the State, when it comes to voting, is limited to the power to fix qualifications. Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like those of race (Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194), are traditionally disfavored. See Edwards v. People of State of California, 314 U.S. 160, 184 185, 62 S.Ct. 164, 171, 86 L.Ed. 119 (Jackson, J., concurring); Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. To introduce wealth or payment of a fee as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor. The degree of the discrimination is irrelevant. In this context—that is, as a condition of obtaining a ballot—the requirement of fee paying causes an 'invidious' discrimination (Skinner v. State of Oklahoma, 316 U.S. 535, 514, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655) that runs afoul of the Equal Protection Clause. Levy 'by the poll,' as stated in Breedlove v. Suttles, supra, 302 U.S. at 281, 58 S.Ct. at 207, is an old familiar form of taxation; and we say nothing to impair its validity so long as it is not made a condition to the exercise of the franchise. Breedlove v. Suttles sanctioned its use as 'a prerequisite of voting.' Id., at 283, 58 S.Ct. at 207. To that extent the Breedlove case is overruled.
8
We agree, of course, with Mr. Justice Holmes that the Due Process Clause of the Fourteenth Amendment 'dose not enact Mr. Herbert Spencer's Social Statics' (Lochner v. People of State of New York, 198 U.S. 45, 75, 25 S.Ct. 539, 546, 49 L.Ed. 937). Likewise, the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. See Malloy v. Hogan, 378 U.S. 1, 5—6, 84 S.Ct. 1489, 12 L.Ed.2d 653. Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change. This Court in 1896 held that laws providing for separate public facilities for white and Negro citizens did not deprive the latter of the equal protection and treatment that the Fourteenth Amendment commands. Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. Seven of the eight Justices then sitting subscribed to the Court's opinion, thus joining in expressions of what constituted unequal and discriminatory treatment that sound strange to a contemporary ear.6 When, in 1954—more than a half-century later—we repudiated the 'separate-but-equal' doctrine of Plessy as respects public education7 we stated: 'In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written.' Brown v. Board of Education, 347 U.S. 483, 492, 74 S.Ct. 686, 691, 98 L.Ed. 873.
9
In a recent searching re-examination of the Equal Protection Clause, we held, as already noted, that 'the opportunity for equal participation by all voters in the election of state legislators' is required.8 Reynolds v. Sims, supra, 377 U.S. at 566, 84 S.Ct. at 1383. We decline to qualify that principle by sustaining this poll tax. Our conclusion, like that in Reynolds v. Sims, is founded not on what we think governmental policy should be, but on what the Equal Protection Clause requires.
10
We have long been mindful that where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined. See, e.g., Skinner v. State of Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113; Reynolds v. Sims, 377 U.S. 533, 561—562, 84 S.Ct. 1362, 1381; Carrington v. Rash, supra; Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620; Cox v. State of Louisiana, 379 U.S. 536, 580—581, 85 S.Ct. 453, 469, 13 L.Ed.2d 471 (Black, J., concurring).
11
Those principles apply here. For to repeat, wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.
12
Reversed.
13
Mr. Justice BLACK, dissenting.
14
In Breedlove v. Suttles, 302 U.S. 277, 58 S.Ct. 205, decided December 6, 1937, a few weeks after I took my seat as a member of this Court, we unanimously upheld the right of the State of Georgia to make payment of its state poll tax a prerequisite to voting in state elections. We rejected at that time contentions that the state law violated the Equal Protection Clause of the Fourteenth Amendment because it put an unequal burden on different groups of people according to their age, sex, and ability to pay. In rejecting the contention that the law violated the Equal Protection Clause the Court noted at p. 281, 58 S.Ct. at p. 207:
15
'While possible by statutory declaration to levy a poll tax upon every inhabitant of whatsoever sex, age or condition, collection from all would be impossible for always there are many too poor to pay.'
16
Believing at that time that the Court had properly respected the limitation of its power under the Equal Protection Clause and was right in rejecting the equal protection argument, I joined the Court's judgment and opinion. Later, May 28, 1951, I joined the Court's judgment in Butler v. Thompson, 341 U.S. 937, 71 S.Ct. 1002, 95 L.Ed. 1365, upholding, over the dissent of Mr. Justice Douglas, the Virginia state poll tax law challenged here against the same equal protection challenges. Since the Breedlove and Butler cases were decided the Federal Constitution has not been amended in the only way it could constitutionally have been, that is, as provided in Article V1 of the Constitution. I would adhere to the holding of those cases. The Court, however, overrules Breedlove in part, but its opinion reveals that it does so not by using its limited power to interpret the original meaning of the Equal Protection Clause, but by giving that clause a new meaning which it believes represents a better governmental policy. From this action I dissent.
17
It should be pointed out at once that the Court's decision is to no extent based on a finding that the Virginia law as written or as applied is being used as a device or mechanism to deny Negro citizens of Virginia the right to vote on account of their color. Apparently the Court agrees with the District Court below and with my Brothers HARLAN and STEWART that this record would not support any finding that the Virginia poll tax law the Court invalidates has any such effect. If the record could support a finding that the law as written or applied has such an effect, the law would of course be unconstitutional as a violation of the Fourteenth and Fifteenth Amendments and also 42 U.S.C. § 1971(a). This follows from our holding in Schnell v. Davis, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093, affirming 81 F.Supp. 872 (D.C.S.D.Ala.); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110; United States v. Mississippi, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717; Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817. What the Court does hold is that the Equal Protection Clause necessarily bars all States from making payment of a state tax, any tax, a prerequisite to voting.
18
(1) I think the interpretation that this Court gave the Equal Protection Clause in Breedlove was correct. The mere fact that a law results in treating some groups differently from others does not, of course, automatically amount to a violation of the Equal Protection Clause. To bar a State from drawing any distinctions in the application of its laws would practically paralyze the regulatory power of legislative bodies. Consequently 'The constitutional command for a state to afford 'equal protection of the laws' sets a goal not attainable by the invention and application of a precise formula.' Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 556, 67 S.Ct. 910, 912, 91 L.Ed. 1093. Voting laws are no exception to this principle. All voting laws treat some persons differently from others in some respects. Some bar a person from voting who is under 21 years of age; others bar those under 18. Some bar convicted felons or the insane, and some have attached a freehold or other property qualification for voting. The Breedlove case upheld a poll tax which was imposed on men but was not equally imposed on women and minors, and the Court today does not overrule that part of Breedlove which approved those discriminatory provisions. And in Lassiter v. Northampton Election Board, 360 U.S. 45, 79 S.Ct. 985, this Court held that state laws which disqualified the illiterate from voting did not violate the Equal Protection Clause. From these cases and all the others decided by this Court interpreting the Equal Protection Clause it is clear that some discriminatory voting qualifications can be imposed without violating the Equal Protection Clause.
19
A study of our cases shows that this Court has refused to use the general language of the Equal Protection Clause as though it provided a handly instrument to strike down state laws which the Court feels are based on bad governmental policy. The equal protection cases carefully analyzed boil down to the principle that distinctions drawn and even discriminations imposed by state laws do not violate the Equal Protection Clause so long as these distinctions and discriminations are not 'irrational,' 'irrelevant,' 'unreasonable,' 'arbitrary,' or 'invidious.'2 These vague and indefinite terms do not, of course, provide a precise formula or an automatic mechanism for deciding cases arising under the Equal Protection Clause. The restrictive connotations of these terms, however (which in other contexts have been used to expand the Court's power inordinately, see, e.g., cases cited in Ferguson v. Skrupa, 372 U.S. 726, at pp. 728—732, 83 S.Ct. 1028, at pp. 1030, 1032, 10 L.Ed.2d 93), are a plain recognition of the fact that under a proper interpretation of the Equal Protection Clause States are to have the broadest kind of leeway in areas where they have a general constitutional competence to act.3 In view of the purpose of the terms to restrain the courts from a wholesale invalidation of state laws under the Equal Protection Clause it would be difficult to say that the poll tax requirement is 'irrational' or 'arbitrary' or works 'invidious discriminations.' State poll tax legislation can 'reasonably,' 'rationally' and without an 'invidious' or evil purpose to injure anyone be found to rest on a number of state policies including (1) the State's desire to collect its revenue, and (2) its belief that voters who pay a poll tax will be interested in furthering the State's welfare when they vote. Certainly it is rational to believe that people may be more likely to pay taxes if payment is a prerequisite to voting. And if history can be a factor in determining the 'rationality' of discrimination in a state law (which we held it could in Kotch v. River Port Pilot Comm'rs, supra), then whatever may be our personal opinion, history is on the side of 'rationality' of the State's poll tax policy. Property qualifications existed in the Colonies and were continued by many States after the Constitution was adopted. Although I join the Court in disliking the policy of the poll tax, this is not in my judgment a justifiable reason for holding this poll tax law unconstitutional. Such a holding on my part would, in my judgment, be an exercise of power which the Constitution does not confer upon me.4
20
(2) Another reason for my dissent from the Court's judgment and opinion is that it seems to be using the old 'natural-law-due-process formula'5 to justify striking down state laws as violations of the Equal Protection Clause. I have heretofore had many occasions to express my strong belief that there is no constitutional support whatever for this Court to use the Due Process Clause as though it provided a blank check to alter the meaning of the Constitution as written so as to add to it substantive constitutional changes which a majority of the Court at any given time believes are needed to meet present-day problems.6 Nor is there in my opinion any more constitutional support for this Court to use the Equal Protection Clause, as it has today, to write into the Constitution its notions of what it thinks is good governmental policy. If basic changes as to the respective powers of the state and national governments are needed, I prefer to let those changes be made by amendment as Article V of the Constitution provides. For a majority of this Court to undertake that task, whether purporting to do so under the Due Process or the Equal Protection Clause amounts, in my judgment, to an exercise of power the Constitution makers with foresight and wisdom refused to give the Judicial Branch of the Government. I have in no way departed from the view I expressed in Adamson v. People of State of California, 332 U.S. 46, 90, 67 S.Ct. 1672, 1695, decided June 23, 1947, that the 'natural-law-due-process formula' under which courts make the Constitution mean what they think it should at a given time 'has been used in the past, and can be used in the future, to license this Court, in considering regulatory legislation, to roam at large in the broad expanses of policy and morals and to trespass, all too freely, on the legislative domain of the States as well as the Federal Government.'
21
The Court denies that it is using the 'natural-law-due-process formula.' It says that its invalidation of the Virginia law 'is founded not on what we think governmental policy should be, but on what the Equal Protection Clause requires.' I find no statement in the Court's opinion, however, which advances even a plausible argument as to why the alleged discriminations which might possibly be effected by Virginia's poll tax law are 'irrational,' 'unreasonable,' 'arbitrary,' or 'invidious' or have no relevance to a legitimate policy which the State wishes to adopt. The Court gives no reason at all to discredit the long-standing beliefs that making the payment of a tax a prerequisite to voting is an effective way of collecting revenue and that people who pay their taxes are likely to have a far greater interest in their government. The Court's failure to give any reasons to show that these purposes of the poll tax are 'irrational,' 'unreasonable,' 'arbitrary,' or 'invidious' is a pretty clear indication to me that none exist. I can only conclude that the primary, controlling, predominate, if not the exclusive reason for declaring the Virginia law unconstitutional is the Court's deep-seated hostility and antagonism, which I share, to making payment of a tax a prerequisite to voting.
22
The Court's justification for consulting its own notions rather than following the original meaning of the Constitution, as I would, apparently is based on the belief of the majority of the Court that for this Court to be bound by the original meaning of the Constitution is an intolerable and debilitating evil; that our Constitution should not be 'shackled to the political theory of a particular era,' and that to save the country from the original Constitution the Court must have constant power to renew it and keep it abreast of this Court's more enlightening theories of what is best for our society.7 It seems to me that this is an attack not only on the great value of our Constitution itself but also on the concept of a written constitution which is to survive through the years as originally written unless changed through the amendment process which the Framers wisely provided. Moreover, when a 'political theory' embodied in our Constitution becomes outdated, it seems to me that a majority of the nine members of this Court are not only without constitutional power but are far less qualified to choose a new constitutional political theory than the people of this country proceeding in the maner provided by Article V.
23
The people have not found it impossible to amend their Constitution to meet new conditions. The Equal Protection Clause itself is the product of the people's desire to use their constitutional power to amend the Constitution to meet new problems. Moreover, the people, in § 5 of the Fourteenth Amendment, designated the governmental tribunal they wanted to provide additional rules to enforce the guarantees of that Amendment. The branch of Government they chose was not the Judicial Branch but the Legislative. I have no doubt at all that Congress has the power under § 5 to pass legislation to abolish the poll tax in order to protect the citizens of this country if it believes that the poll tax is being used as a device to deny voters equal protection of the laws. See my concurring and dissenting opinion in South Carolina v. Katzenbach, 383 U.S. 355, 86 S.Ct. 803. But this legislative power which was granted to Congress by § 5 of the Fourteenth Amendment is limited to Congress.8 This Court had occasion to discuss this very subject in Ex parte Virginia, 100 U.S. 339, 345—346, 25 L.Ed. 676. There this Court said, referring to the fifth section of the Amendment:
24
'All of the amendments derive much of their force from this latter provision. It is not said the judicial power of the general government shall extend to enforcing the prohibitions and to protecting the rights and immunities guaranteed. It is not said that branch of the government shall be authorized to declare void any action of a State in violation of the prohibitions. It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the amendments fully effective. Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.' (Emphasis partially supplied.)
25
Thus § 5 of the Fourteenth Amendment in accordance with our constitutional structure of government authorizes the Congress to pass definitive legislation to protect Fourteenth Amendment rights which it has done many times, e.g., 42 U.S.C. § 1971(a). For Congress to do this fits in precisely with the division of powers originally entrusted to the three branches of government Executive, Legislative, and Judicial. But for us to undertake in the guise of constitutional interpretation to decide the constitutional policy question of this case amounts, in my judgment, to a plain exercise of power which the Constitution has denied us but has specifically granted to Congress. I cannot join in holding that the Virginia state poll tax law violates the Equal Protection Clause.
26
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
27
The final demise of state poll taxes, already totally proscribed by the Twenty-Fourth Amendment with respect to federal elections and abolished by the States themselves in all but four States with respect to state elections,1 is perhaps in itself not of great moment. But that fact that the coup de grace has been administered by this Court instead of being left to the affected States or to the federal political process2 should be a matter of continuing concern to all interested in maintaining the proper role of this tribunal under our scheme of government.
28
I do not propose to retread ground covered in my dissents in Reynolds v. Sims, 377 U.S. 533, 589, 84 S.Ct. 1362, 1395, and Carrington v. Rash, 380 U.S. 89, 97, 85 S.Ct. 775, 780, 13 L.Ed.2d 675, and will proceed on the premise that the Equal Protection Clause of the Fourteenth Amendment now reaches both state apportionment (Reynolds) and voter-qualification (Carrington) cases. My disagreement with the present decision is that in holding the Virginia poll tax violative of the Equal Protection Clause the Court has departed from long-established standards governing the application of that clause.
29
The Equal Protection Clause prevents States from arbitrarily treating people differently under their laws. Whether any such differing treatment is to be deemed arbitrary depends on whether or not it reflects an appropriate differentiating classification among those affected; the clause has never been thought to require equal treatment of all persons despite differing circumstances. The test evolved by this Court for determining whether an asserted justifying classification exists is whether such a classification can be deemed to be founded on some rational and otherwise constitutionally permissible state policy. See, e.g., Powell v. Commonwealth of Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 32 L.Ed. 253; Barrett v. State of Indiana, 229 U.S. 26, 33 S.Ct. 692, 57 L.Ed. 1050; Walters v. City of St. Louis, 347 U.S. 231, 74 S.Ct. 505, 98 L.Ed. 660; Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760. This standard reduces to a minimum the likelihood that the federal judiciary will judge state policies in terms of the individual notions and predilections of its own members, and until recently it has been followed in all kinds of 'equal protection' cases.3
30
Reynolds v. Sims, supra, among its other breaks with the past, also marked a departure from these traditional and wise principles. Unless its 'one man, one vote' thesis of state legislative apportionment is to be attributed to the unsupportable proposition that 'Equal Protection' simply means indiscriminate equality, it seems inescapable that what Reynolds really reflected was but this Court's own views of how modern American representative government should be run. For it can hardly be thought that no other method of apportionment may be considered rational. See the dissenting opinion of Stewart, J., in Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 744, 84 S.Ct. 1459, 1477, 12 L.Ed.2d 632, and my own dissenting opinion in Reynolds v. Sims, supra, 377 U.S. at pp. 615—624, 84 S.Ct. at p. 1409.
31
Following Reynolds the Court in Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675, applied the traditional equal protection standard in striking down a Texas statute disqualifying as voters in state elections certain members of the Armed Forces of the United States.4 But today in holding unconstitutional state poll taxes and property qualifications for voting and pro tanto overruling Breedlove v. Suttles, 302 U.S. 277, 58 S.Ct. 205, and Butler v. Thompson, 341 U.S. 937, 71 S.Ct. 1002, the Court reverts to the highly subjective judicial approach manifested by Reynolds. In substance the Court's analysis of the equal protection issue goes no further than to say that the electoral franchise is 'precious' and 'fundamental,' ante, p. 670, and to conclude that '(t)o introduce wealth or payment of a fee as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor,' ante, p. 668. These are of course captivating phrases, but they are wholly inadequate to satisfy the standard governing adjudication of the equal protection issue: Is there a rational basis for Virginia's poll tax as a voting qualification? I think the answer to that question is undoubtedly 'yes.'5
32
Property qualifications and poll taxes have been a traditional part of our political structure. In the Colonies the franchise was generally a restricted one.6 Over the years these and other restrictions were gradually lifted, primarily because popular theories of political representation had changed.7 Often restrictions were lifted only after wide public debate. The issue of woman suffrage, for example, raised question of family relationships, of participation in public affairs, of the very nature of the type of society in which Americans wished to live; eventually a consensus was reached, which culminated in the Nineteenth Amendment no more than 45 years ago.
33
Similarly with property qualifications, it is only by fiat that it can be said, especially in the context of American history, that there can be no rational debate as to their advisability. Most of the early Colonies had them; many of the States have had them during much of their histories;8 and, whether one agrees or not, arguments have been and still can be made in favor of them. For example, it is certainly a rational argument that payment of some minimal poll tax promotes civic responsibility, weeding out those who do not care enough about public affairs to pay $1.50 or thereabouts a year for the exercise of the franchise. It is also arguable, indeed it was probably accepted as sound political theory by a large percentage of Americans through most of our history, that people with some property have a deeper stake in community affairs, and are consequently more responsible, more educated, more knowledgeable, more worthy of confidence, than those without means, and that the community and Nation would be better managed if the franchise were restricted to such citizens.9 Nondiscriminatory and fairly applied literacy tests, upheld by this Court in Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072, find justification on very similar grounds.
34
These viewpoints, to be sure, ring hollow on most contemporary ears. Their lack of acceptance today is evidenced by the fact that nearly all of the States, left to their own devices, have eliminated property or poll-tax qualifications; by the cognate fact that Congress and three-quarters of the States quickly ratified the Twenty-Fourth Amendment; and by the fact that rules such as the 'pauper exclusion' in Virginia law, Va.Const. § 23, va.Code § 24—18, have never been enforced.10
35
Property and poll-tax qualifications, very simply, are not in accord with current egalitarian notions of how a modern democracy should be organized. It is of course entirely fitting that legislatures should modify the law to reflect such changes in popular attitudes. However, it is all wrong, in my view, for the Court to adopt the political doctrines popularly accepted at a particular moment of our history and to declare all others to be irrational and invidious, barring them from the range of choice by reasonably minded people acting through the political process. It was not too long ago that Mr. Justice Holmes felt impelled to remind the Court that the Due Process Clause of the Fourteenth Amendment does not enact the laissez-faire theory of society, Lochner v. People of State of New York, 198 U.S. 45, 75—76, 25 S.Ct. 539, 546, 49 L.Ed. 937. The times have changed, and perhaps it is appropriate to observe that neither does the Equal Protection Clause of that Amendment rigidly impose upon America an ideology of unrestrained egalitarianism.11
36
I would affirm the decision of the District Court.
1
Section 173 of Virginia's Constitution directs the General Assembly to levy an annual poll tax not exceeding $1.50 on every resident of the State 21 years of age and over (with exceptions not relevant here). One dollar of the tax is to be used by state officials 'exclusively in aid of the public free schools' and the remainder is to be returned to the counties for general purposes. Section 18 of the Constitution includes payment of poll taxes as a precondition for voting. Section 20 provides that a person must 'personally' pay all state poll taxes for the three years preceding the year in which he applies for registration. By § 21 the poll tax must be paid at least six months prior to the election in which the voter seeks to vote. Since the time for election of state officials varies (Va.Code §§ 24—136, 24—160, 24 168; id., at § 24—22), the six months' deadline will vary, election from election. The poll tax is often assessed along with the personal property tax. Those who do not pay a personal property tax are not assessed for a poll tax, it being their responsibility to take the initiative and request to be assessed. Va.Code § 58—1163. Enforcement of poll taxes takes the form of disenfranchisement of those who do not pay, § 22 of the Virginia Constitution providing that collection of delinquent poll taxes for a particular year may not be enforced by legal proceedings until the tax for that year has become three years delinquent.
2
Judge Thornberry, speaking for the three-judge court which recently declared the Texas poll tax unconstitutional, said: 'If the State of Texas placed a tax on the right to speak at the rate of one dollar and seventy-five cents per year, no court would hesitate to strike it down as a blatant infringement of the freedom of speech. Yet the poll tax as enforced in Texas is a tax on the equally important right to vote.' United States v. Texas, D.C., 252 F.Supp. 234, 254 (decided February 9, 1966).
3
We recently held in Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709, that a literacy test which gave voting registrars 'a virtually uncontrolled discretion as to who should vote and who should not' (id., at 150, 85 S.Ct. at 820) had been used to deter Negroes from voting and accordingly we struck it down. While the 'Virginia poll tax was born of a desire to disenfranchise the Negro' (Harman v. Forssenius, 380 U.S. 528, 543, 85 S.Ct. 1177, 1186, 14 L.Ed.2d 50), we do not stop to determine whether on this record the Virginia tax in its modern setting serves the same end.
4
Only a handful of States today condition the franchise on the payment of a poll tax. Alabama (Ala.Const., §§ 178, 194, and Amendments 96 and 207; Ala.Code Tit. 17, § 12) and Texas (Vernon's Ann.St.Tex.Const., Art. 6, § 2; Vernon's Ann.Stat., Election Code, Arts. 5.02, 5.09) each impose a poll tax of $1.50. Mississippi (Miss.Const., §§ 241, 243; Miss.Code §§ 3130, 3160, 3235) has a poll tax of $2. Vermont has recently eliminated the requirement that poll taxes be paid in order to vote. Act of Feb. 23, 1966, amending Vt.Stat.Ann. Tit. 24, § 701.
As already noted, note 2, supra, the Texas poll tax was recently declared unconstitutional by a three-judge United States District Court. United States v. State of Texas, 252 F.Supp. 234 (decided February 9, 1966). Likewise, the Alabama tax. United States v. State of Alabama, D.C., 252 F.Supp. 95 (decided March 3, 1966).
5
Maine has a poll tax (Maine Rev.Stat.Ann. Tit. 36, § 1381) which is not made a condition of voting; instead, its payment is a condition of obtaining a motor vehicle license (Maine Rev.Stat.Ann. Tit. 29, § 108) or a motor vehicle operator's license. Id., § 584.
6
E.g., 'We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.' 163 U.S., at 551, 16 S.Ct., at 1143.
7
Segregated public transportation, approved in Plessy v. Ferguson, supra, was held unconstitutional in Gayle v. Browder, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114 (per curiam).
8
Only Mr. Justice Harlan dissented, while Mr. Justice Clark and Mr. Justice Stewart each concurred on separate grounds.
1
Article V of the Constitution provides:
'The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.'
2
See, e.g., Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480; Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163; Skinner v. State of Oklahoma, 316 U.S. 535, 62 S.Ct. 1110; State of Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744; Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 75 L.Ed. 1264; Watson v. State of Maryland, 218 U.S. 173, 30 S.Ct. 644, 54 L.Ed. 987.
3
'A statutory discrimination will not be set aside as the denial of equal protection of the laws if any state of facts reasonably may be conceived to justify it.' Metropolitan Casualty Ins. Co. of New York v. Brownell, 294 U.S. 580, 584, 55 S.Ct. 538, 540, 79 L.Ed. 1070 (Stone, J.).
4
The opinion of the Court, in footnote two, quotes language from a federal district court's opinion which implies that since a tax on speech would not be constitutionally allowed a tax which is a prerequisite to voting likewise cannot be allowed. But a tax or any other regulation which burdens and actually abridges the right to speak would, in my judgment, be a flagrant violation of the First Amendment's prohibition against abridgments of the freedom of speech which prohibition is made applicable to the States by the Fourteenth Amendment. Cf. Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292. There is no comparable specific constitutional provision absolutely barring the States from abridging the right to vote. Consequently States have from the beginning and do now qualify the right to vote because of age, prior felony convictions, illiteracy, and various other reasons. Of course the First and Fourteenth Amendments forbid any State from abridging a person's right to speak because he is under 21 years of age, has been convicted of a felony, or is illiterate.
5
See my dissenting opinion in Adamson v. People of State of California, 332 U.S. 46, 90, 67 S.Ct. 1672, 1695, 91 L.Ed. 1903.
6
See for illustration my dissenting opinion in Griswold v. State of Connecticut, 381 U.S. 479, 507, 85 S.Ct. 1678, 1694, 14 L.Ed.2d 510, and cases cited therein.
7
In Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, the Court today purports to find precedent for using the Equal Protection Clause to keep the Constitution up to date. I did not vote to hold segregation in public schools unconstitutional on any such theory. I thought when Brown was written, and I think now, that Mr. Justice Harlan was correct in 1896 when he dissented from Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, which held that it was not a discrimination prohibited by the Equal Protection Clause for state law to segregate white and colored people in public facilities, there railroad cars. I did not join the opinion of the Court in Brown on any theory that segregation where practiced in the public schools denied equal protection in 1954 but did not similarly deny it in 1868 when the Fourteenth Amendment was adopted. In my judgment the holding in Brown against racial discrimination was compelled by the purpose of the Framers of the Thirteenth, Fourteenth and Fifteenth Amendments completely to outlaw discrimination against people because of their race or color. See the Slaughter-House Cases, 16 Wall. 36, 71—72, 21 L.Ed. 394; Nixon v. Herndon, 273 U.S. 536, 541, 47 S.Ct. 446, 447, 71 L.Ed. 759.
Nor does Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, stand as precedent for the amendatory power which the Court exercises today. The Court in Malloy did not read into the Constitution its own notions of wise criminal procedure, but instead followed the doctrine of Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, and made the Fifth Amendment's unequivocal protection against self-incrimination applicable to the States. I joined the opinion of the Court in Malloy on the basis of my dissent in Adamson v. People of State of California, supra, in which I stated, at p. 89, 67 S.Ct. at p. 1695:
'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 (Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97) rule applying none of them, I would choose the Palko selective process.'
8
But § 1 of the Fourteenth Amendment itself outlaws any state law which either as written or as applied discriminates against voters on account of race. Such a law can never be rational. 'States may do a good deal of classifying that it is difficult to believe rational, but there are limits, and it is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right (to vote) set up in this case.' Nixon v. Herndon, 273 U.S. 536, 541, 47 S.Ct. 446, 447 (Holmes, J.).
1
Alabama, Mississippi, Texas, and Virginia.
2
In the Senate hearing leading to the passage of the Voting Rights Act of 1965, some doubt was expressed whether state poll taxes could be validly abolished through the exercise of Congress' legislative power under § 5 of the Fourteenth Amendment. See Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 194—197 (1965). I intimate no view on that question.
3
I think the somewhat different application of the Equal Protection Clause to racial discrimination cases finds justification in the fact that insofar as that clause may embody a particular value in addition to rationality, the historical origins of the Civil War Amendments might attribute to racial equality this special status. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478; Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686; Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373; cf. Korematsu v. United States, 323 U.S. 214, 216, 64 S.Ct. 193, 194, 89 L.Ed. 194. See Tussman & Ten-Broek, The Equal Protection of the Laws, 37 Calif.L.Rev. 341 (1949); Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv.L.Rev. 1, 33 (1959).
A similar characterization of indigency as a 'neutral fact,' irrelevant or suspect for purposes of legislative classification, has never been accepted by this Court. See Edwards v. People of State of California, 314 U.S. 160, 184—185, 62 S.Ct. 164, 171, 86 L.Ed. 119 (Jackson, J., concurring). Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, requiring free trial transcripts for indigent appellants, and Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, requiring the appointment of counsel for such appellants, cannot fairly be so interpreted for although reference was made indiscriminately to both equal protection and due process the analysis was cast primarily in terms of the latter.
More explicit attempts to infuse 'Equal Protection' with specific values have been unavailing. See, e.g., Patsone v. Commonwealth of Pennsylvania, 232 U.S. 138, 34 S.Ct. 281, 58 L.Ed. 539 (alienage); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (sex); Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 564, 67 S.Ct. 910, 911, 91 L.Ed. 1093 (Rutledge, J., dissenting) (consanguinity).
4
So far as presently relevant, my dissent in that case rested not on disagreement with the equal protection standards employed by the Court but only on disagreement with their application in that instance. 380 U.S., at 99—101, 85 S.Ct., at 781.
5
I have no doubt that poll taxes that deny the right to vote on the basis of race or color violate the Fifteenth Amendment and can be struck down by this Court. That question is presented to us in Butts v. Harrison, No. 655, the companion case decided today. The Virginia poll tax is on its face applicable to all citizens, and there was no allegation that it was discriminatorily enforced. The District Court explicitly found 'no racial discrimination * * * in its application as a condition to voting.' 240 F.Supp. 270, 271. Appellant in Butts, supra, argued first, that the Virginia Constitutional Convention of 1902, which framed the poll-tax provision, was guided by a desire to reduce Negro suffrage, and second, that because of the generally lower economic standard of Negroes as contrasted with whites in Virginia the tax does in fact operate as a significant obstacle to voting by Negroes. The Court does not deal with this Fifteenth Amendment argument, and it suffices for me to say that on the record here I do not believe that the factors alluded to are sufficient to invalidate this $1.50 tax whether under the Fourteenth or Fifteenth Amendment.
6
See generally Ogden, The Poll Tax in the South 2 (1958); 1 Thorpe, A Constitutional History of the American People, 1776 1850, at 92—98 (1898); Williamson. American Suffrage From Property to Democracy, 1760—1860, cc. 1—4 (1960).
7
See Porter, A History of Suffrage in the United States 77 111 (1918); Thorpe, op. cit. supra, at 97, 401; Williamson, op. cit. supra, at 138—181.
8
See generally Ogden, op. cit. supra; Porter, op. cit supra.
9
At the Constitutional Convention, for example, there was some sentiment to prescribe a freehold qualification for federal elections under Art. IV, § 1. The proposed amendment was defeated, in part because it was thought suffrage qualifications were best left to the States. See II Records of the Federal Convention 201 210 (Farrand ed. 1911). Madison's views were expressed as follows: 'Whether the Constitutional qualification ought to be a freehold, would with him depend much on the probable reception such a change would meet with in States where the right was now exercised by every description of people. In several of the States a freehold was now the qualification. Viewing the subject in its merits alone, the freeholders of the Country would be the safest depositories of Republican liberty.' Id., at 203. See also Aristotle, Politics, Bks. III, IV; I Tocqueville, Democracy in America, c. xiii, at 199—202 (Knopf ed. 1948).
10
See Harper v. Virginia State Board of Elections, 240 F.Supp. 270, 271.
11
Justice Holmes' admonition is particularly appropriate: 'Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.' 198 U.S., at 75—76, 25 S.Ct., at 546—547.
| 12
|
383 U.S. 787
86 S.Ct. 1152
16 L.Ed.2d 267
UNITED STATES, Appellant,v.Cecil Ray PRICE et al.
Nos. 59, 60.
Argued Nov. 9, 1965.
Decided March 28, 1966.
[Syllabus from pages 787-788 intentionally omitted]
ThurgoodMarshall, Sol. Gen., for appellant.
H. C. Mike Watkins, Meridian, Miss., for appellees.
Mr. Justice FORTAS delivered the opinion of the Court.
1
These are direct appeals from the dismissal in part of two indictments returned by the United States Grand Jury for the Southern District of Mississippi. The indictments allege assaults by the accused persons upon the rights of the asserted victims to due process of law under the Fourteenth Amendment. The indictment in No. 59 charges 18 persons1 with violations of 18 U.S.C. § 241 (1964 ed.). In No. 60, the same 18 persons are charged with offenses based upon 18 U.S.C. § 242 (1964 ed.). These are among the so-called civil rights statutes which have come to us from Reconstruction days, the period in our history which also produced the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution.
2
The sole question presented in these appeals is whether the specified statutes make criminal the conduct for which the individuals were indicted. It is an issue of construction, not of constitutional power. We have no doubt of 'the power of Congress to enforce by appropriate criminal sanction every right guaranteed by the Due Process Clause of the Fourteenth Amendment.' United States v. Williams, 341 U.S. 70, 72, 71 S.Ct. 581, 582, 95 L.Ed. 758.2
3
The events upon which the charges are based, as alleged in the indictments, are as follows: On June 21, 1964, Cecil Ray Price, the Deputy Sheriff of Neshoba County, Mississippi, detained Michael Henry Schwerner, James Earl Chaney and Andrew Goodman in the Neshoba County jail located in Philadelphia, Mississippi. He released them in the dark of that night. He then proceeded by automobile on Highway 19 to intercept his erstwhile wards. He removed the three men from their automobile, placed them in an official automobile of the Neshoba County Sheriff's office, and transported them to a place on an unpaved road.
4
These acts, it is alleged, were part of a plan and conspiracy whereby the three men were intercepted by the 18 defendants, including Deputy Sheriff Price, Sheriff Rainey and Patrolman Willis of the philadelphia, Mississippi, Police Department. The purpose and intent of the release from custody and the interception, according to the charge, were to 'punish' the three men. The defendants, it is alleged, 'did wilfully assault, shoot and kill' each of the three. And, the charge continues, the bodies of the three victims were transported by one of the defendants from the rendezvous on the unpaved road to the vicinity of the construction site of an earthen dam approximately five miles southwest of Philadelphia, Mississippi.
5
These are federal and not state indictments. They do not charge as crimes the alleged assaults or murders. The indictments are framed to fit the stated federal statutes, and the question before us is whether the attempt of the draftsman for the Grand Jury in Mississippi has been successful: whether the indictments charge offenses against the various defendants which may be prosecuted under the designated federal statutes.
6
We shall deal first with the indictment in No. 60, based on § 242 of the Criminal Code and then with the indictment in No. 59, under § 241. We do this for ease of exposition and because § 242 was enacted by the Congress about four years prior to § 241.3 Section 242 was enacted in 1866; § 241 in 1870.
7
I. No. 60.
8
Section 242 defines a misdemeanor, punishable by fine of not more than $1,000 or imprisonment for not more than one year, or both. So far as here significant, it provides punishment for 'Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State * * * to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States * * *.'
9
The indictment in No. 60 contains four counts, each of which names as defendants the three officials and 15 nonofficial persons. The First Court charges, on the basis of allegations substantially as set forth above, that all of the defendants conspired 'to wilfully subject' Schwerner, Chaney and Goodman 'to the deprivation of their right, privilege and immunity secured and protected by the Fourteenth Amendment to the Constitution of the United States not to be summarily punished without due process of law by persons acting under color of the laws of the State of Mississippi.' This is said to constitute a conspiracy to violate § 242, and therefore an offense under 18 U.S.C. § 371 (1964 ed.). The latter section, the general conspiracy statute, makes it a crime to conspire to commit any offense against the United States. The penalty for violation is the same as for direct violation of § 242—that is, it is a misdemeanor.4
10
On a motion to dismiss, the District Court sustained this First Court as to all defendants. As to the sheriff, deputy sheriff and patrolman, the court recognized that each was clearly alleged to have been acting 'under color of law' as required by § 242.5 As to the private persons, the District Court held that '(I)t is immaterial to the conspiracy that these private individuals were not acting under color of law' because the count charges that they were conspiring with persons who were so acting. See United States v. Rabinowich, 238 U.S. 78, 87, 35 S.Ct. 682, 684, 59 L.Ed. 1211.
11
The court necessarily was satisfied that the indictment, in alleging the arrest, detention, release, interception and killing of Schwerner, Chaney and Goodman, adequately stated as the purpose of the conspiracy, a violation of § 242, and that this section could be violated by 'wilfully subject(ing the victims) * * * to the deprivation of their right, privilege and immunity' under the Due Process Clause of the Fourteenth Amendment.
12
No appeal was taken by the defendants from the decision of the trial court with respect to the First Count and it is not before us for adjudication.
13
The Second, Third and Fourth Counts of the indictment in No. 60 charge all of the defendants, not with conspiracy, but with substantive violations of § 242. Each of these counts charges that the defendants, acting 'under color of the laws of the State of Mississippi,' 'did wilfully assault, shoot and kill' Schwerner, Chaney and Goodman, respectively, 'for the purpose and with the intent' of punishing each of the three and that the defendants 'did thereby wilfully deprive' each 'of rights, privileges and immunities secured and protected by the Constitution and the laws of the United States'—namely, due process of law.
14
The District Court held these counts of the indictment valid as to the sheriff, deputy sheriff and patrolman. But it dismissed them as against the nonofficial defendants because the counts do not charge that the latter were 'officers in fact, or de facto in anything allegedly done by them 'under color of law."
15
We note that by sustaining these counts against the three officers, the court again necessarily concluded that an offense under § 242 is properly stated by allegations of willful deprivation, under color of law, of life and liberty without due process of law. We agree. No other result would be permissible under the decisions of this Court. Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031; Williams II.6
16
But we cannot agree that the Second, Third or Fourth Counts may be dismissed as against the nonofficial defendants. Section 242 applies only where a person indicted has acted 'under color' of law. Private persons, jointly engaged with state officials in the prohibited action, are acting 'under color' of law for purposes of the statute. To act 'under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.7
17
In the present case, according to the indictment, the brutal joint adventure was made possible by state detention and calculated release of the prisoners by an officer of the State. This action, clearly attributable to the State, was part of the monstrous design described by the indictment. State officers participated in every phase of the alleged venture: the release from jail, the interception, assault and murder. It was a joint activity, from start to finish. Those who took advantage of participation by state officers in accomplishment of the foul purpose alleged must suffer the consequences of that participation. In effect, if the allegations are true, they were participants in official lawlessness, acting in willful concert with state officers and hence under color of law.
18
Appellees urge that the decision of the District Court was based upon a construction of the indictment to the effect that it did not charge the private individuals with acting 'under color' of law. Consequently, they urge us to affirm in No. 60. In any event, they submit, since the trial court's decision was based on the inadequacy of the indictment and not on construction of the statute, we have no jurisdiction to review it on direct appeal. United States v. Swift & Co., 318 U.S. 442, 63 S.Ct. 684, 87 L.Ed. 889. We do not agree. Each count of the indictment specifically alleges that all of the defendants were acting 'under color of the laws of the State of Mississippi.' The fault lies not in the indictment, but in the District Court's view that the statute requires that each offender be an official or that he act in an official capacity. We have jurisdiction to consider this statutory question on direct appeal and, as we have shown, the trial court's determination of it is in error. Since each of the private individuals is indictable as a principal acting under color of law, we need not consider whether he might be held to answer as an 'aider or abettor' under 18 U.S.C. § 2 (1964 ed.), despite omission to include such a charge in the indictment.
19
Accordingly, we reverse the dismissal of the Second, Third and Fourth Counts of the indictment in No. 60 and remand for trial.
20
II. No. 59.
21
No. 59 charges each of the 18 defendants with a felony—a violation of § 241. This indictment is in one count. It charges that the defendants 'conspired together * * * to injure, oppress, threaten and intimidate' Schwerner, Chaney and Goodman 'in the free exercise and enjoyment of the right and privilege secured to them by the Fourteenth Amendment to the Constitution of the United States not to be deprived of life or liberty without due process of law by persons acting under color of the laws of Mississippi.' The indictment alleges that it was the purpose of the conspiracy that Deputy Sheriff Price would release Schwerner, Chaney and Goodman from custody in the Neshoba County jail at such time that Price and the other 17 defendants 'could and would intercept' them 'and threaten, assault, shoot and kill them.' The penalty under § 241 is a fine of not more than $5,000, or imprisonment for not more than 10 years, or both.
22
Section 241 is a conspiracy statute. It reads as follows:
23
'If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
24
'If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
25
'They shall be fined not more than $5,000 or imprisoned not more than ten years, or both.'
26
The District Court dismissed the indictment as to all defendants. In effect, although § 241 includes rights or privileges secured by the Constitution or laws of the United States without qualification or limitation, the court held that it does not include rights protected by the Fourteenth Amendment.
27
It will be recalled that in No. 60 the District Court held that § 242 included the denial of Fourteenth Amendment rights—the same right to due process involved in the indictment under § 241. Both include rights or privileges secured by the Constitution or laws of the United States. Neither is qualified or limited. Each includes, presumably, all of the Constitution and laws of the United States. To the reader of the two sections, versed only in the English language, it may seem bewildering that the two sections could be so differently read.
28
But the District Court purported to read the statutes with the gloss of Williams I. In that case, the only case in which this Court has squarely confronted the point at issue, the Court did in fact sustain dismissal of an indictment under § 241. But it did not, as the District Court incorrectly assumed, hold that § 241 is inapplicable to Fourteenth Amendment rights. The Court divided equally on the issue. Four Justices, in an opinion by Mr. Justice Frankfurter, were of the view that § 241 'only covers conduct which interferes with rights arising from the substantive powers of the Federal Government'—rights 'which Congress can beyond doubt constitutionally secure against interference by private individuals.' 341 U.S., at 73, 77, 71 S.Ct., at 582, 585. Four other Justices, in an opinion by Mr. Justice Douglas, found no support for Mr. Justice Frankfurter's view in the language of the section, its legislative history, or its judicial interpretation up to that time. They read the statute as plainly covering conspiracies to injure others in the exercise of the Fourteenth Amendment rights. They could see no obstacle to using it to punish deprivations of such rights. Dismissal of the indictment was affirmed because Mr. Justice Black voted with those who joined Mr. Justice Frankfurter. He did so, however, for an entirely different reason—that the prosecution was barred by res judicata—and he expressed no view on the issue whether '§ 241, as applied, is too vague and uncertain in scope to be consistent with the Fifth Amendment.' Williams I thus left the proper construction of § 241, as regards its applicability to protect Fourteenth Amendment rights, an open question.
29
In view of the detailed opinions in Williams I, it would be supererogation to track the arguments in all of their intricacy. On the basis of an extensive re-examination of the question, we conclude that the District Court erred; that § 241 must be read as it is written—to reach conspiracies 'to injure * * * any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States * * *'; that this language includes rights or privileges protected by the Fourteenth Amendment; that whatever the ultimate coverage of the section may be, it extends to conspiractes otherwise within the scope of the section participated in by officials alone or in collaboration with private persons; and that the indictment in No. 59 properly charges such a conspiracy in violation of § 241. We shall confine ourselves to a review of the major considerations which induce our conclusion.
30
1. There is no doubt that the indictment in No. 59 sets forth a conspiracy within the ambit of the Fourteenth Amendment. Like the indictment in No. 60, supra, it alleges that the defendants acted 'under color of law' and that the conspiracy included action by the State through its law enforcement officers to punish the alleged victims without due process of law in violation of the Fourteenth Amendment's direct admonition to the States.
31
The indictment specifically alleges that the sheriff, deputy sheriff and a patrolman participated in the conspiracy; that it was a part of the 'plan and purpose of the conspiracy' that Deputy Sheriff Price, 'while having (the three victims) * * * in his custody in the Neshoba County Jail * * * would release them from custody at such time that he (and others of the defendants) * * * could and would intercept (the three victims) * * * and threaten, assault, shoot and kill them.'
32
This is an allegation of state action which, beyond dispute, brings the conspiracy within the ambit of the Fourteenth Amendment. It is an allegation of official, state participation in murder, accomplished by and through its officers with the participation of others. It is an allegation that the State, without the semblance of due process of law as required of it by the Fourteenth Amendment, used its sovereign power and office to release the victims from jail so that they were not charged and tried as required by law, but instead could be intercepted and killed. If the Fourteenth Amendment forbids denial of counsel, it clearly denounces denial of any trial at all.
33
As we have consistently held 'The Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals.' Williams I, 341 U.S., at 92, 71 S.Ct., at 593 (opinion of Douglas, J.). In the present case, the participation by law enforcement officers, as alleged in the indictment, is clearly state action, as we have discussed, and it is therefore within the scope of the Fourteenth Amendment.
34
2. The argument, however, of Mr. Justice Frankfurter's opinion in Williams I, upon which the District Court rests its decision, cuts beneath this. It does not deny that the accused conduct is within the scope of the Fourteenth Amendment, but it contends that in enacting § 241, the Congress intended to include only the rights and privileges conferred on the citizen by reason of the 'substantive' powers of the Federal Government—that is, by reason of federal power operating directly upon the citizen and not merely by means of prohibitions of state action. As the Court of Appeals for the Fifth Circuit in Williams I, relied upon in the opinion below, put it, 'the Congress had in mind the federal rights and privileges which appertain to citizens as such and not the general rights extended to all persons by the * * * Fourteenth Amendment.' 179 F.2d 644, 648. We do not agree.
35
The language of § 241 is plain and unlimited. As we have discussed, its language embraces all of the rights and privileges secured to citizens by all of the Constitution and all of the laws of the United States. There is no indication in the language that the sweep of the section is confined to rights that are conferred by or 'flow from' the Federal Government, as distinguished from those secured or confirmed or guaranteed by the Constitution. We agree with the observation of Mr. Justice Holmes in United States v. Mosley, 238 U.S. 383, 387—388, 35 S.Ct. 904, 905—906, that
36
'The source of this section in the doings of the Ku Klux and the like is obvious, and acts of violence obviously were in the mind of Congress. Naturally Congress put forth all its powers. * * * (T)his section dealt with Federal rights, and with all Federal rights, and protected them in the lump * * * (It should not be construed so) as to deprive citizens of the United States of the general protection which on its face § 19 (now § 241) most reasonably affords.'8
37
We believe, with Mr. Justice Holmes, that the history of the events from which § 241 emerged illuminates the purpose and means of the statute with an unmistakable light. We think that history leaves no doubt that, if we are to give § 241 the scope that its origins dictate, we must accord it a sweep as broad as its language. We are not at liberty to seek ingenious analytical instruments for excluding from its general language the Due Process Clause of the Fourteenth Amendment—particularly since the violent denial of legal process was one of the reasons motivating enactment of the section.9
38
Section 241 was enacted as part of what came to be known as the Enforcement Act of 1870, 16 Stat. 140.10 The Act was passed on May 31, 1870, only a few months after ratification of the Fifteenth Amendment. In addition to the new § 241, it included a re-enactment of a provision of the Civil Rights Act of 1866 which is now § 242. The intended breadth of § 241 is emphasized by contrast with the narrowness of § 242 as it then was.11 Section 242 forbade the deprivation, 'under color of any law,' of 'any right secured or protected by this act.' The rights protected by the Act were narrow and specific: 'to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens (and to) be subject to like punishment, pains, penalties, taxes, licenses, and exactions of everykind, and none other.' Act of May 31, 1870, § 16, 16 Stat. 144, re-enacting with minor changes Act of Appril 9, 1866, § 1, 14 Stat. 27. Between 1866 and 1870 there was much agitated criticism in the Congress and in the Nation because of the continued denial of rights to Negroes, sometimes accompanied by violent assaults. In response to the demands for more stringent legislation Congress enacted the Enforcement Act of 1870. Congress had before it and re-enacted § 242 which was explicitly limited as we have described. At the same time, it included § 241 in the Act using broad language to cover not just the rights enumerated in § 242, but all rights and privileges under the Constitution and laws of the United States.
39
It was not until the statutory revision of 1874 that the specific enumeration of protected rights was eliminated from § 242. The section was then broadened to include as wide a range of rights as § 241 already did: 'any rights, privileges, or immunities, secured or protected by the Constitution or laws of the United States.' The substantial change thus effected was made with the customary stout assertions of the codifiers that they had merely clarified and reorganized without changing substance.12 Section 241 was left essentially unchanged, and neither in the 1874 revision nor in any subsequent re-enactment has there been the slightest indication of a congressional intent to narrow or limit the original broad scope of § 241. It is clear, therefore, that § 241, from original enactment through subsequent codifications, was intended to deal, as Mr. Justice Holmes put it, with conspiracies to interfere with 'Federal rights, and with all Federal rights.' We find no basis whatsoever for a judgment of Solomon which would give to the statute less than its words command.13
40
The purpose and scope of the 1866 and 1870 enactments must be viewed against the events and passions of the time.14 The Civil War had ended in April 1865. Relations between Negroes and whites were increasingly turbulent.15 Congress had taken control of the entire governmental process in former Confederate States. It had declared the governments in 10 'unreconstructed' States to be illegal and had set up federal military administrations in their place. Congress refused to seat representatives from these States until they had adopted constitutions guaranteeing Negro suffrage, and had ratified the Fourteenth Amendment. Constitutional conventions were called in 1868. Six of the 10 States fulfilled Congress' requirements in 1868, the other four by 1870.
41
For a few years 'radical' Republicans dominated the governments of the Southern States and Negroes played a substantial political role. But countermeasures were swift and violent. The Kr Klux Klan was organized by southern whites in 1866 and a similar organization appeared with the romantic title of the Knights of the White Camellia. In 1868 a wave of murders and assaults was launched including assassinations designed to keep Negroes from the polls.16 The States themselves were helpless, despite the resort by some of them to extreme measures such as making it legal to hunt down and shoot any disguised man.17
42
Within the Congress pressures mounted in the period between the end of the war and 1870 for drastic measures. A few months after the ratification of the Thirteenth Amendment on December 6, 1865, Congress, on April 9, 1866, enacted the Civil Rights Act of 1866, which, as we have described, included § 242 in its originally narrow form. On June 13, 1866, the Fourteenth Amendment was proposed, and it was ratified in July 1868. In February 1869 the Fifteenth Amendment was proposed, and it was ratified in February 1870. On May 31, 1870, the Enforcement Act of 1870 was enacted.
43
In this context, it is hardly conceivable that Congress intended § 241 to apply only to a narrow and relatively unimportant category of rights.18 We cannot doubt that the purpose and effect of § 241 was to reach assaults upon rights under the entire Constitution, including the Thirteenth, Fourteenth and Fifteenth Amendments, and not merely under part of it.
44
This is fully attested by the only statement explanatory of § 241 in the recorded congressional proceedings relative to its enactment. We refer to the speech of Senator Pool of North Carolina who introduced the provisions as an amendment to the Enforcement Act of 1870. The Senator's remarks are printed in full in the Appendix to this opinion.19 He urged that the section was needed in order to punish invasions of the newly adopted Fourteenth and Fifteenth Amendments to the Constitution. He acknowledged that the States as such were beyond the reach of the punitive process, and that the legislation must therefore operate upon individuals. He made it clear that 'It matters not whether those individuals be officers or whether they are acting upon their own responsibility.' We find no evidence whatever that Senator Pool intended that § 241 should not cover violations of Fourteenth Amendment rights, or that it should not include state action or actions by state officials.
45
We conclude, therefore, that it is incumbent upon us to read § 241 with full credit to its language. Nothing in the prior decisions of this Court or of other courts which have considered the matter stands in the way of that conclusion.20
46
The present application of the statutes at issue does not raise fundamental questions of federal-state relationships. We are here concerned with allegations which squarely and indisputably involve state action in direct violation of the mandate of the Fourteenth Amendment—that no State shall deprive any person of life or liberty without due process of law. This is a direct, traditional concern of the Federal Government. It is an area in which the federal interest has existed for at least a century, and in which federal participation has intensified as part of a renewed emphasis upon civil rights. Even as recently as 1951, when Williams I was decided, the federal role in the establishment and vindication of fundamental rights—such as the freedom to travel, nondiscriminatory access to public areas and nondiscriminatory educational facilities—was neither as pervasive nor as intense as it is today. Today, a decision interpreting a federal law in accordance with its historical design, to punish denials by state action of constitutional rights of the person can hardly be regarded as adversely affecting 'the wise adjustment between State responsibility and national control * * *.' Williams I, 341 U.S., at 73, 71 S.Ct., at 582 (opinion of Frankfurter, J.). In any event, the problem, being statutory and not constitutional, is ultimately, as it was in the beginning, susceptible of congressional disposition.
47
Reversed and remanded.
48
Mr. Justice BLACK concurs in the judgment and opinion of the Court except insofar as the opinion relies upon United States v. Williams, 341 U.S. 58, 71 S.Ct. 595; United States v. Williams, 341 U.S. 70, 71 S.Ct. 581; and Williams v. United States, 341 U.S. 97, 71 S.Ct. 576.
APPENDIX TO OPINION OF THE COURT.
49
Remarks of Senator Pool of North Carolina on sponsoring Sections 5, 6 and 7 of the Enforcement Act of 1870 (Cong.Globe, 41st Cong., 2d Sess., pp. 3611—3613):
50
MR. POOL. Mr. President, the question involved in the proposition now before the Senate is one in which my section of the Union is particularly interested; although since the ratification of the fifteenth amendment, which we are now about to enforce by appropriate legislation, other sections of the country have become more or less interested in the same question. It is entering upon a new phase of reconstruction; that is, to enforce by appropriate legislation those great principles upon which the reconstruction policy of Congress was based.
51
I said upon a former occasion on this floor that the reconstruction policy of Congress had been progressive, and that it was necessary that it should be progressive still. The mere act of establishing governments in the recently insurgent States was one thing; the great principles upon which Congress proposed to proceed in establishing those governments was quite another thing, involving principles which lie at the very foundation of all that has been done, and which are intimately connected with all the results that must follow from that and from the legislation of Congress connected with the whole subject.
52
Mr. President, the first thing that was done was the passage of the thirteenth amendment, by which slavery in the United States was abolished. By that four millions of people were taken out from under the protecting hand of interested masters and turned loose to take care of themselves. They were turned loose and put upon their own resources in communities which were imbued with prejudices against them as a race, communities which for the most part had for years past—indeed from the very time when those who are now in existence were born—been taught and had instilled into them a prejudice against the equality which has been attempted to be established for the colored citizens of the United States.
53
Mr. President, the condition which that thirteenth amendment imposed on the late insurrectionary States was one which demanded the serious consideration and attention of this Government, The equality which by the thirteenth, fourteenth, and fifteenth amendments has been attempted to be secured for the colored men, has not only subjected them to the operation of the prejudices which had theretofore existed, but it has raised against them still stronger prejudices and stronger feelings in order to fight down the equality by which it is claimed they are to control the legislation of that section of the country. They were turned loose among those people, weak, ignorant, and poor. Those among the white citizens there who have sought to maintain the rights which you have thrown upon that class of people, have to endure every species of proscription, of opposition, and of vituperation in order to carry out the policy of Congress, in order to lift up and to uphold the rights which you have conferred upon that class. It is for that reason not only necessary for the freedmen, but it is necessary for the white people of that section that there should be stringent and effective legislation on the part of Congress in regard to these measures of reconstruction.
54
We have heard on former occasions on the floor of the Senate that there were organizations which committed outrages, which went through communities for the purposes, of intimidating and coercing classes of citizens in the exercise of their rights. We have been told here that perhaps it might be well that retaliation should be resorted to on the part of those who are oppressed. Sir, the time will come when retaliation will be resorted to unless the Government of the United States interposes to command and to maintain the peace; when there will be retaliation and civil war; when there will be bloodshed and tumult in various communities and sections. It is not only necessary for the freedmen, but it is important to the white people of the southern section, that by plain and stringent laws the United States should interpose and preserve the peace and quiet of the community.
55
The fifteenth amendment to the Constitution of the United States provides that the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State on account of race, color, or previous condition of servitude. It speaks of '(t)he right f citizens * * * to vote.' It has been said that voting is a privilege; but this amendment recognizes it as a right in the citizen; and this right is not to 'be denied or abridged by the United States or by any State.' What are we to understand by that? Can individuals abridge it with impunity? Is there no power in this Government to prevent individuals or associations of individuals from abridging or contravening that provision of the Constitution? If that be so, legislation is unnecessary. If our legislation is to apply only to the States, it is perfectly clear that it is totally unnecessary, inasmuch as we cannot pass a criminal law as applicable to a State; nor can we indict a State officer as an officer. It must apply to individuals. A State might attempt to contravene that provision of the Constitution by passing some positive enactment by which it would be contravened, but the Supreme Court would hold such enactment to be unconstitutional, and in that way the State would be restrained. But the word 'deny' is used. There are various ways in which a State may prevent the full operation of this constitutional amendment. It cannot—because the courts would prevent it—by positive legislation, but by acts of omission it may practically deny the right. The legislation of Congress must be to supply acts of omission on the part of the States. If a State shall not enforce its laws by which private individuals shall be prevented by force from contravening the rights of the citizen under the amendment, it is in my judgment the duty of the United States Government to supply that omission, and by its own laws and by its own courts to go into the States for the purpose of giving the amendment vitality there.
56
The word 'deny' is used not only in this fifteenth amendment, but I perceive in the fourteenth amendment it is also used. When the fourteenth amendment was passed there was in existence what is known as the civil rights bill, a part of which has been copied in the Senate bill now pending. The civil rights bill recognized all persons born or naturalized in the United States as citizens, and provided that they should have certain rights which were enumerated. They are, 'to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property,' and to the 'full and equal benefit of all laws and proceedings for the security of person and property.' The civil rights bill was to be enforced by making it criminal for any officer, under color of any State law, to 'subject, or cause to be subjected, any (citizen) * * * to the deprivation of any (of the) right(s) secured and and protected' by the act. If an officer of any State were indicted for subjecting a citizen to the deprivation of any of those rights he was not to be indicted as an officer; it was as an individual. And so, under the fourteenth amendment to the Constitution, '(n)o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property witnout due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' There the word 'deny' is used again; it is used in contradistinction to the first clause, which says, 'No State shall make or enforce any law' which shall do so and so. That would be a positive act which would contravene the right of a citizen; but to say that it shall not deny to any person the equal protection of the law it seems to me opens up a different branch of the subject. It shall not deny by acts of omission, by a failure to prevent its own citizens from depriving by force any of their fellow-citizens of these rights. It is only when a State omits to carry into effect the provisions of the civil rights act, and to secure the citizens in their rights, that the provisions of the fifth section of the fourteenth amendment would be called into operation, which is, 'that Congress shall enforce by appropriate legislation the provisions of this article.'
57
There is no legislation that could reach a State to prevent its passing a law. It can only reach the individual citizens of the State in the enforcement of law. You have, therefore, in any appropriate legislation, to act on the citizen, not on the State. If you pass an act by which you make it an indictable offense for an officer to execute any law of a State by which he treaspasses upon any of these rights of the citizen it operates upon him as a citizen, and not as an officer. Why can you not just as well extend it to any other citizen of the country?
58
It is, in my judgment, incumbent upon Congress to pass the most stringent legislation on this subject. I believe that we have a perfect right under the Constitution of the United States, not only under these three amendments, but under the general scope and features and spirit of the Constitution itself, to go into any of these States for the purpose of protecting and securing liberty. I admit that when you go there for the purpose of restraining liberty, you can go only under delegated powers in express terms; but to go into the States for the purpose of securing and protecting the liberty of the citizen and the rights and immunities of American citizenship is in accordance with the spirit and whole object of the formation of the Union and the national Government.
59
There are, Mr. President, various ways in which the right secured by the fifteenth amendment may be abridged by citizens in a State. If a State should undertake by positive enactment, as I have said, to abridge the right of suffrage, the courts of the country would prevent it; and I find that in section two of the bill which has been proposed as a substitute by the Judiciary Committee of the Senate provision is made for cases where officers charged with registration or officers charged with the assessment of taxes and with making the proper entries in connection therewith, shall refuse the right to register or to pay taxes to a citizen. I believe the language of the Senate bill is sufficiently large and comprehensive to embrace any other class of officers that might be charged with any act that was necessary to enable a citizen to perform any prerequisite to voting. But, sir, individuals may prevent the exercise of the right of suffrage; individuals may prevent the enjoyment of other rights which are conferred upon the citizen by the fourteenth amendment, as well as trespass upon the right conferred by the fifteenth. Not only citizens, but organizations of citizens, conspiracies, may be and are, as we are told, in some of the States formed for that purpose. I see in the fourth section of the Senate bill a provision for cases where citizens by threats, intimidation, bribery, or otherwise prevent, delay, or hinder the exercise of this right; but there is nothing here that strikes at organizations of individuals, at conspiracies for that purpose. I believe that any bill will be defective which does not make it a highly penal offense for men to conspire together, to organize themselves into bodies, for the express purpose of contravening the right conferred by the fifteenth amendment.
60
But, sir, there is a great, important omission in this bill as well as in that of the House. It seems not to have struck those who drew either of the two bills that the prevention of the exercise of the right of suffrage was not the only or the main trouble that we have upon our hands. Suppose there shall be an organization of individuals, or, if you please, a single individual, who shall take it upon himself to compel his fellow citizens to vote in a particular way. Suppose he threatens to discharge them from employment, to bring upon them the outrages which are being perpetrated by the Kuklux organizations, so as not to prevent their voting, but to compel them to vote in accordance with the dictates of the party who brings this coercion upon them. It seems to me it is necessary that we should legislate against that. That is a more threatening view of the subject than the mere preventing of registration or of entering men's names upon the assessment books for taxation or of depositing the ballot in the box. I think the bill cannot be perfected to meet the emergencies of the occasion unless there be a section which meets that view of the case.
61
The Senator from Indiana (Mr. Morton) asks whether I have drawn an amendment to the effect. I have, but I cannot offer it at this time, for the simple reason that there is an amendment to an amendment pending.
62
MR. MORTON. Let it be read for information.
63
MR. POOL. It has been printed, and I send it to the desk to be read for information.
64
The Chief Clerk read the amendment intended to be proposed by Mr. Pool, as follows:
65
'Insert after section four of the Senate bill the following sections:
66
'Sec. 5. And be it further enacted, That it shall be unlawful for any person, with intent to hinder or influence the exercise of the right of suffrage as aforesaid, to coerce or intimidate, or attempt to coerce or intimidate any of the legally qualified voters in any State or Territory. Any person violating the provisions of this section shall be held guilty of a misdemeanor, and on conviction thereof shall be fined or imprisoned, or both, in the discretion of the court: the fine not to exceed $1,000, and the imprisonment not to exceed one year.
67
'Sec. 6. And be it further enacted, That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States, such person shall be held guilty of felony, and on conviction thereof shall be fined and imprisoned; the fine not to exceed $5,000 and the imprisonment not to exceed ten years; and shall, moreover, be thereafter ineligible to and disabled from holding any office or place of honor, profit, or trust created by the Constitution or laws of the United States.
68
'Sec. 7. And be it further enacted, That if in the act of violating any provision in either of the two preceding sections, any other felony, crime, or misdemeanor shall be committed, the offender may be indicted or prosecuted for the same in the courts of the United States, as hereinafter provided, for violations of this act, and on conviction thereof shall be punished for the same with such punishments as are attached to like felonies, crimes, and misdemeanors by the laws of the State in which the offense may be committed.
69
'Strike out section twelve and substitute therefor the following:
70
'And be it further enacted, That the President of the United States, or such person as he may employer for that purpose, may employ in any State such part of the land and naval forces of the United States, or of the militia, as he may deem necessary to enforce the complete execution of this act; and with such forces may pursue, arrest, and hold for trial all persons charged with the violation of any of the provisions of this act, and enforce the attendance of witnesses upon the examination or trial of such persons.'
71
MR. POOL. The Senator from Indiana asked if I had an amendment prepared which met the view of the case I was presenting in regard to the compelling of citizens to vote in a particular way. The first section of the amendment which I have offered uses this language:
72
'That it shall be unlawful for any person with intent to hinder or influence the exercise of the right of suffrage as aforesaid, to coerce or intimidate or attempt to coerce or intimidate any of the legally qualified voters in any State or Territory.' But, Mr. President, there is another view which seems to have been lost sight of entirely by those who have drawn both the House bill and the bill now pending before the Senate, and from which we apprehend very much danger. It is this: the oppression of citizens because of having voted in a particular way, or having voted at all. It may often happen, as it has happened up to this time already, that upon the close of an election colored persons will be discharged from employment by their employers. They may be subjected to outrages of various kinds because they have participated in an election, and cast their votes in a particular way. That is not done for the purpose of punishment so much as for the purpose of deterring them from voting in any succeeding election, or from voting in a way that those who perpetrate these outrages do not desire them to do. I find that branch of the subject is entirely left out of view in the bill.
73
There is another feature of my amendment which I deem of some importance. It is this:
74
'That if in the act of violating any provision in either of the two preceding sections any other felony, crime, or misdemeanor shall be committed, the offender may be indicted or prosecuted for the same in the courts of the United States.'
75
I think the most effective mode of preventing this intimidation and these attempts at coercion, as well as the outrages which grow out of these attempts, would be found in making any offense committed in the effort to violate them indictable before the courts of the United States. As was said before, in the discussion of the Georgia question in the Senate, the juries in the communities where these outrages are committed are often composed of men who are engaged in them, or of their friends, or of those who connive at them, or of persons who are intimidated by them, and in many instances they dare not bring in a true bill when there is an attempt to indict, or if a true bill be found, they dare not go for conviction on the final trial. It is for that reason that I believe it will be better, it will be the only effective remedy, to take such offenders before the courts of the United States, and there have them tried by a jury which is not imbued with the prejudices and interests of those who perpetrate the crimes.
76
These are the principal features of the amendment which I have drawn in the effort to perfect this bill; and there is another one to which I will call the attention of the Senate. It is that in regard to calling out the military forces of the United States. I find that in the civil rights bill, as in the bill which has been introduced by the Senate Judiciary Committee, the President is authorized, either by himself or by such person as he may empower for that purpose, to use the military forces of the United States to enforce the act. There in both instances it stops. It has been objected to here that the expression, 'or such other person as he may empower for that purpose,' should not be in the bill; that it may be subject to abuse. I think it would have no good effect to keep that language in. The President may send his officers and he may empower whomsoever he pleases to take charge of his forces without any such provision.
77
But there is a use for these forces which seems not to have been adverted to in either the civil rights bill or in the bill that is now pending before the Senate. It is the holding of these offenders for examination and trial after they are arrested. Their confederates, if they are put in the common prisons of the State, will in nine cases out of ten release them. But more important still is it to use these forces to compel the attendance of witnesses; for a subterfuge resorted to is to keep witnesses away from the trial. In many instances witnesses are more or less implicated in the commission of the offense. In other cases the witnesses are intimidated and cannot be obtained upon the trial. So in the amendment which I have prepared I have proposed that these forces may be used to enforce the attendance of witnesses both upon the examination and the trial. My purpose in introducing this was to perfect the Senate bill. I think, as I said yesterday, that that bill is liable to less objection than the House bill. I think it is more efficacious in its provisions. I think it is better that the Senate should direct its attention to perfecting that bill, in order that it may be made, when perfected, a substitute for the bill that came from the House.
78
That much being said upon the purpose of perfecting the bill and making it efficacious, I have very little more to say. I did not intend when I rose to say much upon the general power, which has been questioned here, to pass any law at all. I think it is better to do nothing than to do that which will not have the proper effect. To do that which will not accomplish the purpose would be worse than doing nothing at all. That the United States Government has the right to go into the States and enforce the fourteenth and the fifteenth amendments is, in my judgment, perfectly clear, by appropriate legislation that shall bear upon individuals. I cannot see that it would be possible for appropriate legislation to be resorted to except as applicable to individuals who violate or attempt to violate these provisions. Certainly we cannot legislate here against States. As I said a few moments ago, it is upon individuals that we must press our legislation. It matters not whether those individuals be officers or whether they are acting upon their own responsibility; whether they are acting singly or in organizations. If there is to be appropriate legislation at all, it must be that which applies to individuals.
79
I believe that the United States has the right, and that it is an incumbent duty upon it, to go into the States to enforce the rights of the citizens against all who attempt to infringe upon those rights when they are recognized and secured by the Constitution of the country. If we do not possess that right the danger to the liberty of the citizen is great indeed in many parts of this Union. I think this question will come time and again as years pass by, perhaps before another year, in different forms before the Senate. It is well that we should deal with it now and deal with it squarely, and I hope that the Senate will not hesitate in doing so.
80
Mr. President, the liberty of a citizen of the United States, the prerogatives, the rights, and the immunities of American citizenship, should not be and cannot be safely left to the mere caprice of States either in the passage of laws or in the withholding of that protection which any emergency may require. If a State by omission neglects to give to every citizen within its borders a free, fair, and full exercise and enjoyment of his rights it is the duty of the United States Government to go into the State, and by its strong arm to see that he does have the full and free enjoyment of those rights.
81
Upon that ground the Republican party must stand in carrying into effect the reconstruction policy, or the whole fabric of reconstruction, with all the principles connected with it, amounts to nothing at all; and in the end it will topple and fall unless it can be enforced by the appropriate legislation, the power to enact which has been provided in each one of the great charters of liberty which that party has put forth in its amendments to the Constitution. Unless the right to enforce it by appropriate legislation is enforced stringently and to the point, it is clear to my mind that there will be no efficacy whatever in what has been done up to this time to carry out and to establish that policy.
82
I did not rise, sir, for the purpose of arguing the question very much in detail. I did not rise for the purpose of making any appeals to the Senate; but more for the purpose of asserting here and arguing for a moment the general doctrine of the right of the United States to intervene against individuals in the States who attempt to contravene the amendment to the Constitution which we are now endeavoring to enforce, and for the purpose of calling attention to the defects in the bill and offering a remedy for them.
1
One of the defendants charged in the two indictments, James E. Jordan, is not a party to the present appeal. His case was transferred under Rule 20, Fed.Rules Crim.Proc., to the United States District Court for the Middle District of Georgia.
2
Cf. Mr. Justice Holmes in United States v. Mosley, 238 U.S. 383, 386, 35 S.Ct. 904, 905, 59 L.Ed. 1355 (a federal voting rights case under an earlier version of § 241): 'It is not open to question that this statute is constitutional * * *.' The source of congressional power in this case is, of course, § 5 of the Fourteenth Amendment, which reads: 'The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.'
There are three 'Williams' cases arising from the same events. The first, with no bearing on the present appeal is United States v. Williams, 341 U.S. 58, 71 S.Ct. 595, 95 L.Ed. 747, involving a prosecution for perjury. The second, United States v. Williams, 341 U.S. 70, 71 S.Ct. 581, was a prosecution for violation of § 241; it will be referred to hereinafter as Williams I. The third, Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774, was a prosecution for violation of § 242; it will be referred to as Williams II.
3
In the interest of clarity, we shall use the present designation of the statutes throughout this discussion. Reference is made to the Appendix to Mr. Justice Frankfurter's opinion in Williams I, 341 U.S., at 83, 71 S.Ct., at 588, which contains a table showing major changes in the statutes through the years.
4
'If * * * the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.' 18 U.S.C. § 371 (1964 ed.).
5
This is settled by our decisions in Screws v. United States, 325 U.S. 91, 107—113, 65 S.Ct. 1031, 1038, 89 L.Ed. 1495, and Williams II, 341 U.S., at 99—100, 71 S.Ct., at 578.
6
'* * * where police take matters in their own hands, seize victims, beat and pound them until they confess, there cannot be the slightest doubt that the police have deprived the victim of a right under the Constitution. It is the right of the accused to be tried by a legally constituted court, not by a kangaroo court.' Williams II, 341 U.S., at 101, 71 S.Ct., at 579.
7
'Under color' of law means the same thing in § 242 that it does in the civil counterpart of § 242, 42 U.S.C. § 1983 (1964 ed.). Monroe v. Pape, 365 U.S. 167, 185, 212, 81 S.Ct. 473, 483, 5 L.Ed.2d 492 (majority opinion) Frankfurter, J., dissenting). In cases under § 1983, 'under color' of law has consistently been treated as the same thing as the 'state action' required under the Fourteenth Amendment. See, e.g., Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987; Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152; Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (C.A.4th Cir.), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659; Smith v. Holiday Inns, 336 F.2d 630 (C.A.6th Cir.); Hampton v. City of Jacksonville, 304 F.2d 320 (C.A.5th Cir.), cert. denied, Ghioto v. Hampton, 371 U.S. 911, 83 S.Ct. 256, 9 L.Ed.2d 170; Boman v. Bitmingham Transit Co., 280 F.2d 531 (C.A.5th Cir.); Kerr v. Enoch Pratt Free Library, 149 F.2d 212 (C.A.4th Cir.), cert. denied, 326 U.S. 721, 66 S.Ct. 26, 90 L.Ed. 427.
The contrary view in a § 242 context was expressed by the dissenters in Screws, 325 U.S., at 147—149, 65 S.Ct., at 1957 and was rejected then, later in Williams II, and finally—in a § 1983 case—in Monroe v. Pape, supra. Cf. Peterson v. City of Greenville, 373 U.S. 244, 250, 83 S.Ct. 1119, 1133, 10 L.Ed.2d 323 (separate opinion of Harlan, J.). Recent decisions of this Court which have given form to the 'state action' doctrine make it clear that the indictments in this case allege conduct on the part of the 'provate' defendants which constitutes 'state action,' and hence action 'under color' of law within § 242., In Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45, we held that there is 'state action' whenever the 'State has so far insinuated itself into a position of interdependence (with the otherwise 'private' person whose conduct is said to violate the Fourteenth Amendment) * * * that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so 'purely private' as to fall without the scope of the Fourteenth Amendment.' 365 U.S., at 725, 81 S.Ct., at 862. Cf. Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792; Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373; Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119; Lombard v. State of Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338; Robinson v. State of Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771; Griffin v. State of Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754; American Communications Ass'n v. Douds, 339 U.S. 382, 401, 70 S.Ct. 674, 685, 94 L.Ed. 925; Public Utilities Comm'n of District of Columbia v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068; Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757; Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809; Williams II, 341 U.S., at 99—100, 71 S.Ct., at 578.
8
See also Mr. Justice Rutledge, concurring in result, in Screws v. United States, 325 U.S. 91, 120, 65 S.Ct. 1031, 1044.
9
It would be strange, indeed, were this Court to revert to a construction of the Fourteenth Amendment which would once again narrow its historical purpose—which remains vital and pertinent to today's problems. As is well known, for many years after Reconstruction, the Fourteenth Amendment was almost a dead letter as far as the civil rights of Negroes were concerned. Its sole office was to impede state regulation of railroads or other corporations. Despite subsequent statements to the contrary, nothing in the records of the congressional debates or the Joint Committee on Reconstruction indicates any uncertainty that its objective was the protection of civil rights. See Stampp, The Era of Reconstruction, 1865—1877, 136—137 (1965).
10
The official title is 'An Act to enforce the Right of Citizens of the United States to vote in the several States of this Union, and for other Purposes.'
11
The substantial difference in coverage of the two sections as they were in the Act of 1870 precludes the argument that § 241 should be narrowly construed to exclude Fourteenth Amendment rights because otherwise it would have been duplicative of § 242 taken in conjunction with the general conspiracy statute, 18 U.S.C. § 371. If, as we hold, § 241 was intended to cover all Fourteenth Amendment rights, it was far broader in 1870 than was § 242. For other reasons for rejecting the duplication argument, see the opinion of Mr. Justice Douglas in Williams I, 341 U.S., at 88, n. 2, 71 S.Ct. at 591.
12
See 14 Stat. 74; 17 Stat. 579; S.Misc. Doc. No. 101, 40th Cong., 2d Sess.; H. Misc. Doc. No. 31, 40th Cong., 3d Sess.; S.Misc.Doc. No. 3, 42d Cong., 2d Sess.; 2 Cong.Rec. 646, 648, 1029, 1210, 1461.
13
The opinion of Mr. Justice Douglas in Williams I, 341 U.S., at 88, 71 S.. Ct. at 591, disposes of the argument that the words of § 241 themselves suggest the narrow meaning which the opinion of Mr. Justice Frankfurter found in the section.
14
See generally, Stampp, The Era of Reconstruction, 1865 1877 (1965); Navins, The Emergence of Modern America 1865—1878 (1927).
15
See H.R.Rep. No. 16, 39th Cong., 2d Sess., p. 12 et seq.
16
Cf. Nevins, op. cit. supra, at 351.
17
See, id., at 352; Morison, Oxford History of the American People 722—723 (1965).
18
See, for example, United States v. Waddell, 112 U.S. 76, 5 S.Ct. 35, 28 L.Ed. 673 (right to perfect a homestead claim); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (right to vote in federal elections); Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (right to be secure from unauthorized violence while in federal custody); In re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080 (right to inform of violations of federal law). Cf. also United States v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588; Hague v. Committee for Industrial Organization, 307 U.S. 496, 512—513, 59 S.Ct. 954, 962, 83 L.Ed. 1423 (opinion of Roberts, J.); Collins v. Hardyman, 341 U.S. 651, 660, 71 S.Ct. 937, 941, 95 L.Ed. 1253.
19
We include these remarks only to show that the Senator clearly intended § 241 to cover Fourteenth Amendment rights.
20
This Court has rejected the argument that the constitutionality of § 241 may be affected by undue vagueness of coverage. The Court held with reference to § 242 that any deficiency is cured by the requirement that specific intent be proved. Secrews v. United States, 325 U.S. 91, 65 S.Ct. 1031. There is no basis for distinction between the two statutes in this respect. See Williams I, 341 U.S., at 93—95, 71 S.Ct., at 593 (Douglas, J.).
| 12
|
383 U.S. 821
86 S.Ct. 1128
16 L.Ed.2d 288
CLAYTON CHEMICAL AND PACKAGING CO.v.UNITED STATES.
No. 890.
March 28, 1966.
John Joseph McDermott and John D. Rode, for petitioner.
Solicitor General Marshall, for the United States.
Joseph Schwartz, for the Association of the Customs Bar, New York, N.Y., as amicus curiae.
PER CURIAM.
1
Petitioner brought a proceeding before a single judge of the Customs Court to reappraise the United States value of a product which it imported. The appraiser had relied upon the prices at which petitioner sold the product to establish its value for assessment of import duties. Petitioner offered in evidence certain affidavits to show that most of its sales of the product were for experimental purposes and in experimental quantities, and hence were not relevant to show 'the price at which such * * * imported merchandise is freely offered for sale * * * in the principal market of the United States to all purchasers * * * in the usual wholesale quantities and in the ordinary course of trade * * *.' Act of June 17, 1930, c. 497, § 402(e), 46 Stat. 708, as amended, 19 U.S.C. § 1402(e) (1964 ed.). Cf. United States v. H. Muehlstein & Co., 42 Cust.Ct. 760 (1959).
2
Over objection of the United States that the affidavits were not admissible, the judge received them in evidence. The ground for admission of the affidavits was 28 U.S.C. § 2633 (1964 ed.), which provides that in reappraisement proceedings, 'affidavits and depositions of persons whose attendance cannot reasonably be had * * * may be admitted in evidence.' Relying on the affidavits, the single judge found that most of petitioner's sales were for experimental purposes. 49 Cust.Ct. 409 (1962).
3
On appeal by the United States from a reappraisal favorable to petitioner, the Appellate Term of the Second Division of the Customs Court held that the United States had not preserved its objection to the admissibility of the affidavits. 52 Cust.Ct. 620 (1964). The United States appealed to the Court of Customs and Patent Appeals. That court reversed the determination that the United States had not preserved its objection. It held that the affidavits were not admissible because petitioner had not shown that the attendance of the affiants could not reasonably be had, and agreed with the position of the United States that 'with exclusion of the affidavits there is no substantial competent evidence of record to rebut the statutory presumption that the United States value of the imported merchandise was the value found by the appraiser.' 357 F.2d 1009, 52 CCPA (Cust.) 111, 120 (1965). The judgment of the Customs Court was accordingly reversed, Judges Smith and Rich dissenting. On petition for rehearing, petitioner contended that if the affidavits were inadmissible, it was entitled to a remand to the Customs Court to enable it to fill the evidentiary void created by the holding that the affidavits were inadmissible. The petition was denied without opinion, Judges Smith and Rich again dissenting. Because we conclude that petitioner should have an opportunity to establish its contentions by other types of evidence that may be available to it, we grant a writ of certiorari and reverse.
4
The Solicitor General suggests that the Court of Customs and Patent Appeals may have deemed the affidavits and any evidence of experimental use that petitioner might present on remand, irrelevant to the question of United States value. The court did not so hold, and the tenor of its opinion is to the contrary. The Solicitor General also asserts that petitioner should have requested a remand prior to its petition for rehearing. As appellee in the Court of Customs and Patent Appeals, petitioner had no reason to anticipate that if the United States prevailed on the admissibility of the affidavits the court would nonetheless proceed to consider the merits of the reappraisal claim without affording petitioner an opportunity to present oral testimony in lieu of the excluded affidavits. We hold that the Court of Customs and Patent Appeals erred in refusing to remand the case to the Customs Court for further proceedings. Cf. Ford Motor Co. v. National Labor Relations Board, 305 U.S. 364, 373, 59 S.Ct. 301, 307, 83 L.Ed. 221; Standard-Vacuum Oil Co. v. United States, 339 U.S. 157, 70 S.Ct. 545, 94 L.Ed. 731. Compare American Propeller & Mfg. Co. v. United States, 300 U.S. 475, 57 S.Ct. 521, 81 L.Ed. 751.
5
Reversed and remanded.
| 01
|
383 U.S. 715
86 S.Ct. 1130
16 L.Ed.2d 218
UNITED MINE WORKERS OF AMERICA, Petitioner,v.Paul GIBBS.
No. 243.
Argued Jan. 20, 1966.
Decided March 28, 1966.
[Syllabus from pages 715-717 intentionally omitted]
Willard P. Owens, Washington, D.C., for petitioner.
Clarence Walker, Chattanooga, Tenn., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Respondent Paul Gibbs was awarded compensatory and punitive damages in this action against petitioner United Mine Workers of America (NMW) for alleged violations of § 303 of the Labor Management Relations Act, 1947, 61 Stat. 158, as amended,1 and of the common law of Tennessee. The case grew out of the rivalry between the United Mine Workers and the Southern Labor Union over representation of workers in the southern Appalachian coal fields. Tennessee Consolidated Coal Company, not a party here, laid off 100 miners of the UMW's Local 5881 when it closed one of its mines in southern Tennessee during the spring of 1960. Late that summer, Grundy Company, a wholly owned subsidiary of Consolidated, hired respondent as mine superintendent to attempt to open a new mine on Consolidated's property at nearby Gray's Creek through use of members of the Southern Labor Union. As part of the arrangement, Grundy also gave respondent a contract to haul the mine's coal to the nearest railroad loading point.
2
On August 15 and 16, 1960, armed members of Local 5881 forcibly prevented the opening of the mine, threatening respondent and beating an organizer for the rival union.2 The members of the local believed Consolidated had promised them the jobs at the new mine; they insisted that if anyone would do the work, they would. At this time, no representative of the UMW, their international union, was present. George Gilbert, the UMW's field representative for the area including Local 5881, was away at Middlesboro, Kentucky, attending an Executive Board meeting when the members of the local discovered Grundy's plan;3 he did not return to the area until late in the day of August 16. There was uncontradicted testimony that he first learned of the violence while at the meeting, and returned with explicit instructions from his international union superiors to establish a limited picket line, to prevent any further violence, and to see to it that the strike did not spread to neighboring mines. There was no further violence at the mine site; a picket line was maintained there for nine months; and no further attempts were made to open the mine during that period.4
3
Respondent lost his job as superintendent, and never entered into performance of his haulage contract. He testified that he soon began to lose other trucking contracts and mine leases he held in nearby areas. Claiming these effects to be the result of a concerted union plan against him, he sought recovery not against Local 5881 or its members, but only against petitioner, the international union. The suit was brought in the United States District Court for the Eastern District of Tennessee, see, and jurisdiction was premised on allegations of secondary boycotts under s 303. The state law claim, for which jurisdiction was based upon the doctrine of pendent jurisdiction, asserted 'an unlawful conspiracy and an unlawful boycott aimed at him and (Grundy) to maliciously, wantonly and willfully interfere with his contract of employment and with his contract of haulage.'5
4
The trial judge refused to submit to the jury the claims of pressure intended to cause mining firms other than Grundy to cease doing business with Gibbs; he found those claims unsupported by the evidence. The jury's verdict was that the UMW had violated both § 303 and state law. Gibbs was awarded $60,000 as damages under the employment contract and $14,500 under the haulage contract; he was also awarded $100,000 punitive damages. On motion, the trial court set aside the award of damages with respect to the haulage contract on the ground that damage was unproved. It also held that union pressure on Grundy to discharge respondent as supervisor would constitute only a primary dispute with Grundy, as respondent's employer, and hence was not cognizable as a claim under § 303. Interference with the employment relationship was cognizable as a state claim, however, and a remitted award was sustained on the state law claim.6 220 F.Supp. 871. The Court of Appeals for the Sixth Circuit affirmed. 343 F.2d 609. We granted certiorari. 382 U.S. 809, 86 S.Ct. 59, 15 L.Ed.2d 58. We reverse.
I.
5
A threshold question is whether the District Court properly entertained jurisdiction of the claim based on Tennessee law. There was no need to decide a like question in Local 20, Teamsters, Chauffeurs and Helpers Union v. Morton, 337 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280, since the pertinent state claim there was based on peaceful secondary activities and we held that state law based on such activities had been pre-empted by § 303. But here respondent's claim is based in part on proofs of violence and intimidation. '(W)e have allowed the States to grant compensation for the consequences, as defined by the traditional law of torts, of conduct marked by violence and imminent threats to the public order. International Union, United Automobile, Aircraft and Agricultural Implement Workers, etc. v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030; United Construction Workers, etc. v. Laburnum Const.Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025. * * * State jurisdiction has prevailed in these situations because the compelling state interest, in the scheme of our federalism, in the maintenance of domestic peace is not overridden in the absence of clearly expressed congressional direction.' San Diego Building Trades Council Millmen's Union Local 2020 v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 781, 3 L.Ed.2d 775.
6
The fact that state remedies were not entirely pre-empted does not, however, answer the question whether the state claim was properly adjudicated in the District Court absent diversity jurisdiction. The Court held in Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, that state law claims are appropriate for federal court determination if they form a separate but parallel ground for relief also sought in a substantial claim based on federal law. The Court distinguished permissible from non-permissible exercises of federal judicial power over state law claims by contrasting 'a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground; in the latter it may not do so upon the nonfederal cause of action.' 289 U.S., at 246, 53 S.Ct., at 589. The question is into which category the present action fell.
7
Hurn was decided in 1933, before the unification of law and equity by the Federal Rules of Civil Procedure. At the time, the meaning of 'cause of action' was a subject of serious dispute;7 the phrase might 'mean one thing for one purpose and something different for another.' United States v. Memphis Cotton Oil Co., 288 U.S. 62, 67 68, 53 S.Ct. 278, 280, 77 L.Ed. 619.8 The Court in Hurn identified what it meant by the term by citation of Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069, a case in which 'cause of action' had been used to identify the operative scope of the doctrine of res judicata. In that case the Court had noted that "the whole tendency of our decisions is to require a plaintiff to try his whole cause of action and his whole case at one time," 274 U.S., at 320, 47 S.Ct., at 602. It stated its holding in the following language, quoted in part in the Hurn opinion:
8
'Upon principle, it is perfectly plain that the respondent (a seaman suing for an injury sustained while working aboard ship) suffered but one actionable wrong, and was entitled to but one recovery, whether his injury was due to one or the other of several distinct acts of alleged negligence, or to a combination of some or all of them. In either view, there would be but a single wrongful invasion of a single primary right of the plaintiff, namely, the right of bodily safety, whether the acts constituting such invasion were one or many, simple or complex.
9
'A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show. The number and variety of the facts alleged do not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong. The mere multiplication of grounds of negligence alleged as causing the same injury does not result in multiplying the causes of action. 'The facts are merely the means, and not the end. They do not constitute the cause of action, but they show its existence by making the wrong appear." Id., at 321, 47 S.Ct. at 602.
10
Had the Court found a jurisdictional bar to reaching the state claim in Hurn, we assume that the doctrine of res judicata would not have been applicable in any subsequent state suit. But the citation of Baltimore S.S. Co. shows that the Court found that the weighty policies of judicial economy and fairness to parties reflected in res judicata doctrine were in themselves strong counsel for the adoption of a rule which would permit federal courts to dispose of the state as well as the federal claims.
11
With the adoption of the Federal Rules of Civil Procedure and the unified form of action, Fed.Rule Civ.Proc. 2, much of the controversy over 'cause of action' abated. The phrase remained as the keystone of the Hurn test, however, and, as commentators have noted,9 has been the source of considerable confusion. Under the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.10 Yet because the Hurn question involves issues of jurisdiction as well as convenience, there has been some tendency to limit its application to cases in which the state and federal claims are, as in Hurn, 'little more than the equivalent of different epithets to characterize the same group of circumstances.' 289 U.S., at 246, 53 S.Ct. at 590.11
12
This limited approach is unnecessarily grudging. Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim 'arising under (the) Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority * * *,' U.S.Const., Art. III, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional 'case.'12 The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062. The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.13
13
That power need not be exercised in every case in which it is found to exist. It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right.14 Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.15 Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.16 Similarly, if it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals. There may, on the other hand, be situations in which the state claim is so closely tied to questions of federal policy that the argument for exercise of pendent jurisdiction is particularly strong. In the present case, for example, the allowable scope of the state claim implicates the federal doctrine of pre-emption; while this interrelationship does not create statutory federal question jurisdiction, Louisville & N.R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126, its existence is relevant to the exercise of discretion. Finally, there may be reasons independent of jurisdictional considerations, such as the likelihood of jury confusion in treating divergent legal theories of relief, that would justify separating state and federal claims for trial, Fed.Rule Civ.Proc. 42(b). If so, jurisdiction should ordinarily be refused.
14
The question of power will ordinarily be resolved on the pleadings. But the issue whether pendent jurisdiction has been properly assumed is one which remains open throughout the litigation. Pretrial procedures or even the trial itself may reveal a substantial hegemony of state law claims, or likelihood of jury confusion, which could not have been anticipated at the pleading stage. Although it will of course be appropriate to take account in this circumstance of the already completedcourse of the litigation, dismissal of the state claim might even then be merited. For example, it may appear that the plaintiff was well aware of the nature of his proofs and the relative importance of his claims; recognition of a federal court's wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant's effort to impose upon it what is in effect only a state law case. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed.
15
We are not prepared to say that in the present case the District Court exceeded its discretion in proceeding to judgment on the state claim. We may assume for purposes of decision that the District Court was correct in its holding that the claim of pressure on Grundy to terminate the employment contract was outside the purview of § 303. Even so, the § 303 claims based on secondary pressures on Grundy relative to the haulage contract and on other coal operators generally were substantial. Although § 303 limited recovery to compensatory damages based on secondary pressures, Local 20, Teamsters, Chauffeurs and Helpers Union, v. Morton, supra, and state law allowed both compensatory and punitive damages, and allowed such damages as to both secondary and primary activity, the state and federal claims arose from the same nucleus of operative fact and reflected alternative remedies. Indeed, the verdict sheet sent in to the jury authorized only one award of damages, so that recovery could not be given separately on the federal and state claims.
16
It is true that the § 303 claims ultimately failed and that the only recovery allowed respondent was on the state claim. We cannot confidently say, however, that the federal issues were so remote or played such a minor role at the trial that in effect the state claim only was tried. Although the District Court dismissed as unproved the § 303 claims that petitioner's secondary activities included attempts to induce coal operators other than Grundy to cease doing business with respondent, the court submitted the § 303 claims relating to Grundy to the jury. The jury returned verdicts against petitioner on those § 303 claims, and it was only on petitioner's motion for a directed verdict and a judgment n.o.v. that the verdicts on those claims were set aside. The District Judge considered the claim as to the haulage contract proved as to liability, and held it failed only for lack of proof of damages. Although there was some risk of confusing the jury in joining the state and federal claims—especially since, as will be developed, differing standards of proof of UMW involvement applied—the possibility of confusion could be lessened by employing a special verdict form, as the District Court did. Moreover, the question whether the permissible scope of the state claim was limited by the doctrine of pre-emption afforded a special reason for the exercise of pendent jurisdiction; the federal courts are particularly appropriate bodies for the application of pre-emption principles. We thus conclude that although it may be that the District Court might, in its sound discretion, have dismissed the state claim, the circumstances show no error in refusing to do so.
II.
17
This Court has consistently recognized the right of States to deal with violence and threats of violence appearing in labor disputes, sustaining a variety of remedial measures against the contention that state law was pre-empted by the passage of federal labor legislation. Allen-Bradley Local No. 1111, etc. v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154; United Construction Workers v. Laburnum Construction Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025; United Automobile Aircraft and Agricultural Implement Workers v. Wisconsin Employment Relations Board, 351 U.S. 266, 76 S.Ct. 794, 100 L.Ed. 1162; Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151; International Union, United Automobile, Aircraft and Agr. Implement Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030. Petitioner concedes the principle, but argues that the permissible scope of state remedies in this area is strictly confined to the direct consequences of such conduct, and does not include consequences resulting from associated peaceful picketing or other union activity. We agree.
18
Our opinions on this subject, frequently announced over weighty arguments in dissent that state remedies were being given too broad scope, have approved only remedies carefully limited to the protection of the compelling state interest in the maintenance of domestic peace. Thus, in San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, we read our prior decisions as only allowing 'the States to grant compensation for the consequences, as defined by the traditional law of torts, of conduct marked by violence and imminent threats to the public order,' id., at 247, 79 S.Ct. at 781, and noted that in Laburnum
19
'damages were restricted to the 'damages directly and proximately caused by wrongful conduct chargeable to the defendants * * *' as defined by the traditional law of torts. * * * Thus there is nothing in the measure of damages to indicate that state power was exerted to compensate for anything more than the direct consequences of the violent conduct.' Id., at 248, n. 6, at 249, 79 S.Ct, at 782.
20
In Russell, we specifically observed that the jury had been charged that to award damages it must find a proximate relation between the violence and threats of force and violence complained of, on the one hand, and the loss of wages allegedly suffered, on the other. 356 U.S., at 638, n. 3, 78 S.Ct., at 935. In the two Wisconsin Board cases it was noted that the State's administrative-injunctive relief was limited to prohibition against continuation of the unlawful picketing, not all picketing. 315 U.S., at 748, 62 S.Ct., at 825; 351 U.S., at 269—270, n. 3, 76 S.Ct., at 796—797. And in Youngdahl, the Court held that a state court injunction which would have prohibited all picketing must be modified to permit peaceful picketing of the premises. We said, '(t)hough the state court was within its discretionary power in enjoining future acts of violence, intimidation and threats of violence by the strikers and the union, yet it is equally clear that such court entered the pre-empted domain of the National Labor Relations Board insofar as it enjoined peaceful picketing * * *.' 355 U.S., at 139, 78 S.Ct., at 211.17
21
It is true that in Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836, the Court approved sweeping state injunctive relief barring any future picketing in a labor dispute, whether peaceful or not. That case, however, was decided only on a constitutional claim of freedom of speech. We did not consider the impact of federal labor policy on state regulatory power. Moreover, as we recognized in Youngdahl, supra, 355 U.S., at 139, 78 S.Ct., at 212, the case was decided in the context of a strike marked by extreme and repeated acts of violence—'a pattern of violence * * * which would inevitably reappear in the event picketing were later resumed.' The Court in Meadowmoor had stated the question presented as 'whether a state can choose to authorize its courts to enjoin acts of picketing in themselves peaceful when they are enmeshed with contemporaneously violent conduct which is concededly outlawed,' 312 U.S., at 292, 61 S.Ct., at 554, and had reasoned that
22
'acts which in isolation are peaceful may be part of a coercive thrust when entangled with acts of violence. The picketing in this case was set in a background of violence. In such a setting it could justifiably be concluded that the momentum of fear generated by past violence would survive even though future picketing might be wholly peaceful.' Id., at 294, 61 S.Ct., at 555.
23
Such special facts, if they appeared in an action for damages after picketing marred by violence had occurred, might support the conclusion that all damages resulting from the picketing were proximately caused by its violent component or by the fear which that violence engendered.18 Where the consequences of peaceful and violent conduct are separable, however, it is clear that recovery may be had only for the latter.
24
In the present case, petitioner concedes that volence which would justify application of state tort law within these narrow bounds occurred during the first two days of the strike. It is a separate issue, however, whether the pleadings, the arguments of counsel to the jury, or the instructions to the jury adequately defined the compass within which damages could be awarded under state law. The tort claimed was, in essence, a 'conspiracy' to interfere with Gibbs' contractual relations. The tort of 'conspiracy' is poorly defined, and highly susceptible to judicial expansion; its relatively brief history is colored by use as a weapon against the developing labor movement.19 Indeed, a reading of the record in this case gives the impression that the notion of 'conspiracy' was employed here to expand the application of state law substantially beyond the limits to be observed in showing direct union involvement in violence.
25
Thus, respondent's complaint alleged 'an unlawful conspiracy and an unlawful boycott * * * to maliciously, wantonly and willfully interfere with his contract of employment and with his contract of haulage.' No limitation to interference by violence appears. Similarly, counsel in arguing to the jury asserted, not that the conspiracy in which the union had allegedly participated and from which its liability could be inferred was a conspiracy of violence but that it was a conspiracy to impose the UMW and the UMW's standard contract on the coal fields of Tennessee.20 Under the state law, it would not have been relevant that the union had not actually authorized, participated in or ratified the particular violence involved or even the general use of violence. It would only be necessary to show a conspiracy in which the union had a part, and to show also that those who engaged in the violence were members of the conspiracy and their acts were related to the conspiracy's purpose.21
26
The instructions to the jury also appear not to have kept the conspiracy concept within any proper bounds. The charge instructed the jury separately on the § 303 and conspiracy claims, characterizing each as predicated on an assertion that there had been 'unlawful' picketing action, and distinguishing one from the other on the basis that in the conspiracy claim 'the lawfulness of the means rather than the lawfulness of the object or the purpose of the picketing * * * is controlling.' But in charging the conspiracy claim, the court stressed that the 'unlawfulness' of the picketing, rather than violence as such, would be controlling. Thus, in characterizing respondent's claim of a conspiracy intentionally to interfere with his contractual relations with Grundy, the trial of judge said respondent asserted the interference to be 'wrongful in that it was accomplished by unlawful means, including violence and threats of violence.' Turning to the question of the international union's responsibility, he said this depended on a showing that it 'was a party to a conspiracy pursuant to which the interference was committed.' He defined conspiracy as
27
'an agreement between two or more * * * to do an unlawful thing, or to do a lawful thing by unlawful means. * * * It is not essential to the existence of a conspiracy that the agreement between the conspirators be formally made between the parties at any one time, if, forexample, two persons agreed to pursue an unlawful purpose or pursue a lawful purpose by unlawful means, then later a third person with knowledge of the existence of the conspiracy assents to it either impliedly or expressly and participates in it, then all three are conspirators in the same conspiracy. * * * (A)ll that is required is that each party to the conspiracy know of the existence of the conspiracy and that each agrees to assist in some manner in the furtherance of the unlawful purpose * * * or any unlawful means of accomplishing an unlawful purpose.'
28
The trial judge then charged, in accordance with the Tennessee common law on conspiracy,22 that the union, if a member of a conspiracy, would be liable for all acts 'done in concert * * * with the common purpose, and to effect a common design,' whether or not it had authorized, participated in, or ratified the particular acts. The jury was told it might award 'only such damages as * * * he has sustained as a proximate and direct result of the action of the defendant,' and that '(n)o award of damages can be made * * * on the basis of losses sustained * * * as a result of lawful activity upon the part of the defendant or its agents.' Such instructions do not focus the jury's attention upon violence or threats of violence as the essential predicate of any recovery it might award.
III.
29
Even assuming the conspiracy concept could be and was kept within limits proper to the application of state tort law under the pre-emption doctrine, reversal is nevertheless required here for failure to meet the special proof requirements imposed by § 6 of the Norris-LaGuardia Act:23
30
'No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.'
31
Petitioner vigorously contends that § 6 applied to the state claims in this case; that, on this record, it cannot be charged with having participated in or authorized the violence of August 15—16; and that its acts once it learned of the violence fell short of what would be necessary to show either ratification of the violence or any intent to build its picketing campaign upon the fears the violence engendered. We agree.
32
We held in United Brotherhood of Carpenters and Joiners of America v. United States, 330 U.S. 395, 403, 67 S.Ct. 775, 780, 91 L.Ed. 973, that
33
'whether § 6 should be called a rule of evidence or one that changes the substantive law of agency. * * * its purpose and effect was to relieve organizations * * * and members of those organizations from liability for damages or imputation of guilt for lawless acts done in labor disputes by some individual officers or members of the organization without clear proof that the organization or member, charged with responsibility for the offense, actually participated, gave prior authorization, or ratified such acts after actual knowledge of their perpetration.'
34
Shortly thereafter, Congress passed the Labor Management Relations Act, which expressly provides that for the purposes of that statute, including § 303, the responsibility of a union for the acts of its members and officers is to be measured by reference to ordinary doctrines of agency, rather than the more stringent standards of § 6.24 Yet although the legislative history indicates that Congress was well aware of the Carpenters decision,25 it did not repeal § 6 outright, but left it applicable to cases not arising under the new Act. This selectivity is not surprising, for on state claims, though not on § 303 claims, punitive damages may be recovered. The driving force behind § 626 and the opposition to § 303, even in its limited form,27 was the fear that unions might be destroyed if they could be held liable for damage done by acts beyond their practical control. Plainly, § 6 applies to federal court adjudications of state tort claims arising out of labor disputes, whether or not they are associated with claims under § 303 to which the section does not apply.28
35
Although the statute does not define 'clear proof,' its history and rationale suggest that Congress meant at least to signify a meaning like that commonly accorded such similar phrases as 'clear, unequivocal, and convincing proof.' Under this standard, the plaintiff in a civil case is not required to satisfy the criminal standard of reasonable doubt on the issue of participation, authorization or ratification; neither may he prevail by meeting the ordinary civil burden of persuasion. He is required to persuade by a substantial margin, to come forward with 'more than a bare preponderance of the evidence to prevail.' Schneiderman v. United States, 320 U.S. 118, 125, 63 S.Ct. 1333, 1336, 87 L.Ed. 1796. In our view, that burden was not met.29
36
At the outset, it is clear that the requisite showing was not made as to possible union authorization of or participation in the violence of August 15 and 16. Although it is undoubtedly true that the officers and members of Local 5881 were present in force at the mine site on those days, neither the Local nor they are parties to this suit. Mr. Gilbert, the UMW representative, had left the area for a business meeting before the series of events culminating in the violence, and immediately upon his return, the violence subsided. The Sixth Circuit conceded that '(t)he proofs were sketchy as to defendant's responsibility for the (first two days' violence).' This view accurately reflects the state of the record. Petitioner was not even aware of Grundy's plan to open the Gray's Creek mine until after the violence had occurred.
37
The remaining issue is whether there was clear proof that the union ratified the violence which had occurred. Preliminarily, we note that it would be inconsistent with the fabric of national labor policy to infer ratification from the mere fact that petitioner involved itself in the dispute after the violence had occurred, or from the fact that it carried on some normal union functions, such as provision of strike relief. A union would ordinarily undertake these tasks during the course of a lawful strike. National labor policy requires that national unions be encouraged to exercise a restraining influence on explosive strike situations; and when they seek to do so, they should not for these activities be made to risk liability for such harm as may already have been done. The fact that ripples of the earlier violence may still be felt should not be permitted, and under § 6 is not permitted, to impose such liability. Because the dispute which sparked the violence will often continue, the union will feel a responsibility to take up the dispute as well as to curb its excesses. There can be no rigid requirement that a union affirmatively disavow such unlawful acts as may previously have occurred. Cf. ILGWU v. National Labor Relations Board, 99 U.S.App.D.C. 64, 237 F.2d 545. What is required is proof, either that the union approved the violence which occurred, or that it participated actively or by knowing tolerance in further acts which were in themselves actionable under state law or intentionally drew upon the previous violence for their force.
38
The record here is persuasive that the petitioner did what it could to stop or curtail the violence. There was repeated and uncontradicted testimony that when news of the violence reached the meeting that Gilbert was attending, he was given firm instructions to return to the scene, to assume control of the strike, to suppress violence, to limit the size of the picket line, and to assure that no other area mines were affected.30 He succeeded. Although the day after his return two Consolidated officers were harassed by a large and unruly mob in a nearby town, this incident was unrelated to respondent, and was not repeated. There was no further violence at the mine site, and the number of pickets was reduced to a very few. Other mines in the immediate area, including two worked on lease by Gibbs, continued to operate, although strenuous effort was required to accomplish this; one union official testified, 'I thought I was going to get whipped two or three times (by members of the Local who opposed this policy).'31
39
To be sure, there was testimony that Gilbert and, through him, the international union were not pleased with respondent's role in the abortive venture to open the Gray's Creek mines with members of the Southern Labor Union. A company officer testified that when the mines finally opened respondent was not hired, because 'Had I hired Mr. Paul Gibbs none of these mines would be open today.' Respondent testified that Gilbert had told him, shortly after assuming control of the strike, 'I want you to keep your damn hands off of that Gray's Creek area over there, and tell that Southern Labor Union that we don't intend for you to work that mine.' To another, Gilbert is alleged to have said, 'Hell, we can't let that go on * * * Paul was trying to bring this other union in there, and (Gilbert said) he ain't going to get by with it.' A third witness reported remarks of a similar tenor. Respondent testified that fear for his own safety caused him not to visit his mine leases after the events of August 15 and 16. His foreman testified to minor acts of violence at the mine site, never connected to any person or persons.
40
The relevant question, however, is whether Gilbert or other UMW representatives were clearly shown to have endorsed violence or threats of violence as a means of settling the dispute. The Sixth Circuit's answer was that they had. Its view of the record gave it
41
'the impression that the threat of violence remained throughout the succeeding days and months. The night and day picketing that followed its spectacular beginning was but a guaranty and warning that like treatment would be accorded further attempts to open the Gray's Creek area. The aura of violence remained to enhance the effectiveness of the picketing. Certainly there is a threat of violence when the man who has just knocked me down my front steps continues to stand guard at my front door.' 343 F.2d, at 616.
42
An 'impression' is too ephemeral a product to be the result of 'clear proof.' As we have said, the mere fact of continued picketing at the mine site is not properly relied upon to show ratification. But even accepting the passage as a holding that 'clear proof' of UMW involvement is present, we do not so read the record.
43
If there was a remaining threat of violence here, it was a threat which arose from the context of the dispute, and not from the manner in which the international union was shown to have handled it. This dispute began when unemployed miners in the Appalachian hills discovered that jobs they believed had been promised to them were being given to others behind their backs. In considering the vicarious liability of the international union, accommoation must be made for that fact. The record here clearly bears the construction that the international union exerted pressure to assure that respondent would lose his present jobs and obtain no more. But the record fails to rebut petitioner's contention that it had been unwilling to see its ends accomplished through violence, and indeed had sought to control the excesses which had occurred. Since the record establishes only peaceful activities in this regard on the part of petitioner, respondent was limited to his § 303 remedy. Local 20, Teamsters, Chauffeurs and Helpers Union v. Morton, supra. Although our result would undoubtedly be firmer if the petitioner had assured respondent that, having assumed control of the strike, it would prevent further violence, in the circumstances of this case the crucial fact of petitioner's participation in or ratification of the violence that occurred was not proved to the degree of certainty required by § 6.
44
Reversed.
45
THE CHIEF JUSTICE took no part in the decision of this case.
46
Mr. Justice HARLAN, whom Mr. Justice CLARK joins, concurring.
47
I agree with and join in Part I of the Court's opinion relating to pendent jurisdiction. As to Part II, I refrain from joining the Court's speculations about the uses to which it may put the preemption doctrine in similar future cases. The holding in Part III that the Norris-LaGuardia Act requires reversal here seems to me correct, but my interpretation of the statute is different and somewhat narrower than that of the Court.
48
The statutory requirement for union liability in this case is 'clear proof of actual participation in, or actual authorization of * * * (the unlawful acts), or of ratification of such acts after actual knowledge thereof.'1 The Court construes this provision as fixing a new test of the quantum of proof, somewhere between ordinary civil and criminal standards. I do not think the admittedly vague legislative history imports this reading, and I believe it introduces a revealing inconsistency since the new test could not be applied to criminal cases, concededly governed by the same statutory language, without standing the statute on its head by having it reduce present quantum-of-proof requirements in criminal cases, that is, proof 'beyond a reasonable doubt.' The best reading I can give the statute, absent more light than has been shed upon it in this case, is one directing it against a particular type of inferential proof of authority or ratification unacceptable to those who framed the law. For me, the gist of the statute is that in the usual instance a union's carrying on of its normal strike functions and its failure to take affirmative action to dispel misconduct are not in themselves proof of authorization or ratification of the wrongdoing.2
49
In the present case, apart from a few quite ambiguous episodes, there was nothing to bring the violence home to the union except, as the Sixth Circuit stressed (see p. 741, ante), that the union continued through its picketing the threat that the earlier violence would be renewed and did not repudiate the violence or promise to oppose its renewal. Whatever arguments could be made for imposing liability in such a situation, I think it approximates what the statute was designed to forbid. On this basis, I concur in the reversal.
1
Section 303 of the Labor Management Relations Act, 1947 provides:
'(a) It shall be unlawful, for the purpose of this section only, in an industry or activity affecting commerce, for any labor organization to engage in any activity or conduct defined as an unfair labor practice in section 158(b)(4) of this title.
'(b) Whoever shall be injured in his business or property by reason or (of) any violation of subsection (a) of this section may sue therefor in any district court of the United States subject to the limitations and provisions of section 185 of this title without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost of the suit.' 29 U.S.C. § 187 (1964 ed.).
Section 158(b)(4) of Title 29 U.S.C. (1964 ed.), § 5(b)(4) of the National Labor Relations Act, as amended, 73 Stat. 542, provides, in relevant part, that:
'(b) 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 use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
'(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing * * *.'
2
These events were also the subject of two proceedings before the National Labor Relations Board. In one, the Board found that Consolidated had unlawfully assisted the Southern Labor Union in violation of § 8(a)(2) of the National Labor Relations Act, as amended, 49 Stat. 452, 29 U.S.C. § 158(a)(2) (1964 ed.), Tennessee Consolidated Coal Co., 131 N.L.R.B. 536, enforcement denied sub nom. National Labor Relations Board v. Tennessee Consolidated Coal Co., 307 F.2d 374 (C.A.6th Cir. 1962). In the other, it found that Local 5881 had engaged in coercive picketing in violation of § 8(b)(1)(A), 61 Stat. 141, 29 U.S.C. § 158(b)(1)(A) (1964 ed.), Local 5881, UMWA, 130 N.L.R.B. 1181. The International itself was not charged in this proceeding, and the Board's consideration focused entirely on the events of August 16.
3
The only testimony suggesting thatGilbert might have been at the mine site on August 15—16 was Gibbs' statement that 'Well, everything happened so fast there, I'm thinking that I seen Mr. Gilbert drive up there, but where he went, I don't know.' Whether such testimony could ever be sufficient to establish presence we need not decide, since respondent effectively conceded in the Sixth Circuit and here that Gilbert was in Middlesboro when the violence occurred.
4
Immediately after the Board's order in the proceedings against it, note 2, supra, Consolidated reopened the mine it had closed during the spring of 1960, and hired the men of Local 5881. Later, and while this litigation was awaiting trial, that mine was closed as the result of an accident. At this point, the fall of 1962, the Gray's Creek mine was opened using members of Local 5881.
5
See Dukes v. Brotherhood of Painters, etc., Local No. 437, 191 Tenn. 495, 235 S.W.2d 7, 26 A.L.R.2d 1223 (1950); Brumley v. Chattanooga Speedway & Motordrome Co., 138 Tenn. 534, 198 S.W. 775 (1917); Dale v. Thomas H. Temple Co., 186 Tenn. 69, 208 S.W.2d 344 (1948).
6
The questions had been submitted to the jury on a special verdict form. The suggested remittitur from $60,000 to $30,000 for damages on the employment contract and from $100,000 to $45,000 punitive damages was accepted by respondent. In view of our disposition, we do not reach petitioner's contentions that the verdict must be set aside in toto for prejudicial summation by respondent's counsel, or because the actual damages awarded substantially exceeded the proof, and the punitive damage award may have rested in part on the award of actual damages for interference with the haulage contract, which was vacated as unproved.
7
See Clark on Code Pleading 75 et seq. (1928); Clark, The Code Cause of Action, 33 Yale L.J. 817 (1924); McCaskill, Actions and Causes of Actions, 34 Yale L.J. 614 (1925); McCaskill, One Form of Civil Action, But What Procedure, for the Federal Courts, 30 Ill.L.Rev. 415 (1935); Gavit, A 'Pragmatic Definition' of the 'Cause of Action'? 82 U.Pa.L.Rev. 129 (1933); Clark, The Cause of Action, id., at 354 (1934); Gavit, The Cause of Action—a Reply, id., at 695 (1934).
8
See also American Fire & Cas. Co. v. Finn, 341 U.S. 6, 12, 71 S.Ct. 534, 539, 95 L.Ed. 702; Musher Foundation, Inc. v. Alba Trading Co., 127 F.2d 9, 12 (C.A.2d Cir. 1942) (dissenting opinion of Clark, J.)
9
Shulman & Jaegerman, Some Jurisdictional Limitations on Federal Procedure, 45 Yale L.J. 393, 397—410 (1936); Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp. Prob. 216, 232 (1948); Barron & Holtzoff, Federal Practice and Procedure § 23 (1965 Supp.).
10
See, eG., Fed.Rules Civ.Proc. 2, 18—20, 42.
11
E.g., Musher Foundation v. Alba Trading Co., supra; Note, The Evolution and Scope of the Doctrine of Pendent Jurisdiction in the Federal Courts, 62 Col.L.Rev. 1018, 1029—1030 (1962).
12
The question whether joined state and federal claims constitute one 'case' for jurisdictional purposes is to be distinguished from the often equally difficult inquiry whether any 'case' at all is presented, Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70, although the issue whether a claim for relief qualifies as a case 'arising under * * * the Laws of the United States' and the issue whether federal and state claims constitute one 'case' for pendent jurisdiction purposes may often appear together, see Dann v. Studebaker-Packard Corp., 288 F.2d 201, 211—215 (C.A.6th Cir. 1961); Borak v. J. I. Case Co., 317 F.2d 838, 847—848 (C.A.7th Cir. 1963), aff'd on other grounds, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423.
13
Cf. Armstrong Paint and Varnish Works v. Nu-Enamel Corp., 305 U.S. 315, 325, 59 S.Ct. 191, 196, 83 L.Ed. 195. Note, Problems of Parallel State and Federal Remedies, 71 Harv.L.Rev. 513, 514 (1958). While it is commonplace that the Federal Rules of Civil Procedure do not expand the jurisdiction of federal courts, they do embody 'the whole tendency of our decisions * * * to require a plaintiff to try his * * * whole case at one time,' Baltimore S.S. Co. v. Phillips, supra, and to that extent emphasize the basis of pendent jurisdiction.
14
Massachusetts Universalist Convention v. Hildreth & Rogers Co., 183 F.2d 497 (C.A.1st Cir. 1950);Moynahan v. Pari-Mutuel Employees Guild, 317 F.2d 209, 211—212 (C.A.9th Cir. 1963); op. cit. supra, notes 9 and 11.
15
Some have seen this consideration as the principal argument against exercise of pendent jurisdiction. Thus, before Erie, it was remarked that 'the limitations (on pendent jurisdiction) are in the wise discretion of the courts to be fixed in individual cases by the exercise of that statesmanship which is required of any arbiter of the relations of states to nation in a federal system.' Shulman & Jaegerman, supra, note 9, at 408. In his oft-cited concurrence in Strachman v. Palmer, 177 F.2d 427, 431, 12 A.L.R.2d 687 (C.A.1st Cir. 1949), Judge Magruder counseled that '(f)ederal courts should not be overeager to hold on to the determination of issues that might be more appropriately left to settlement in state court litigation,' at 433. See also Wechsler, supra, note 9, at 232—233; Note, 74 Harv.L.Rev. 1660, 1661 (1961); Note, supra, note 11, at 1043—1044.
16
Note, supra, note 11, at 1025—1026; Wham-O-Mfg. Co. v.Paradise Mfg. Co., 327 F.2d 748, 752—754 (C.A.9th Cir. 1964).
17
In Local 20, Teamsters, Chauffeurs and Helpers Union v. Morton, supra, a similar analysis was applied to permit recovery under § 303 of damages suffered during a strike characterized by proscribed secondary activity only to the extent that the damages claimed were the proximate result of such activity; damages for associated primary strike activity could not be recovered.
18
It would of course be relevant if the Board had already intervened and as here, note 2, supra, issued an order which permitted the continuance of peaceful picketing activity.
19
On the flexibility of 'conspiracy' as a tort, see Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133 F.2d 187, 189 (C.A.2d Cir. 1943); Riley v. Dun & Bradstreet, Inc., 195 F.2d 812 (C.A.6th Cir. 1952); Charlesworth, Conspiracy as a Ground of Liability in Tort, 36 L.Q.Rev. 38 (1920); Burdick, Conspiracy as a Crime, and as a Tort, 7 Col.L.Rev. 229 (1907); Burdick, The Tort of Conspiracy, 8 Col.L.Rev. 117 (1908). The antilabor uses of the doctrine are well illustrated in Sayre, Labor and the Courts, 39 Yale L.J. 682, 684—687 (1930). Similar dangers are presented by the tort of malicious interference with contract, id., at 691—695, a doctrine equally young which in its origins required a showing of interference by force, threats, or fraud, but does so no more, Sayre, Inducing Breach of Contract, 36 Harv.L.Rev. 663 (1923); Comment, 56 NW.U.L.Rev. 391 (1961).
20
Respondent's attorney argued in summation:
'* * * and here is the conspiracy. Mr. Pass (an official of petitioner's) testified, we want that contract all over this nation. That contract or better. I don't guess at that, there is his testimony. There is no deviation from that contract, Mr. Turnblazer so says, unless it is approved in Washington. They impose a nationwide contract all over this nation, all over. I don't care whether it is in Canada or West Virginia or California or Tennessee.'
21
Note 5, supra.
22
Ibid.
23
47 Stat. 71, 29 U.S.C. § 106 (1964 ed.).
24
National Labor Relations Act, as amended, § 2(13), 61 Stat. 139, 29 U.S.C. § 152(13) (1964 ed.); Labor Management Relations Act, 1947, §§ 301(e), 303(b), 61 Stat. 157, 159, 29 U.S.C. §§ 185(e), 187(b) (1964 ed.).
25
See, e.g., S.Rep.No. 105, 80th Cong., 1st Sess., p. 21.
26
The fullest statement of the basis for § 6 appears in S.Rep.No. 163, 72d Cong., 1st Sess., pp. 19—21.
27
The present § 303 was introduced on the floor of the Senate by Senator Taft, in response to a more severe proposal which would have permitted injunctive relief as well as damages against secondary activity. 93 Cong.Rec. 4769—4770, 4833—4847, 4858—4875 (1947). The tenor of the opposition may be seen in those pages, and also at 93 Cong.Rec. 4765—4766 (remarks of Senator Thomas); 93 Cong.Rec. 6451—6452 (remarks of Senator Morse); 93 Cong.Rec. 6520—6521 (remarks of Senator Pepper).
28
The argument might be made that if there were 'clear proof' that the local union was responsible, the responsibility of the international union vis-a -vis its local would be governed by a less demanding standard than that applicable for determining the responsibility of a labor organization or its officers on the basis of the acts of 'individual officers, members, or agents' of the organization. Since the local was not a party here, we have no occasion to assess this issue. Liability of the international union is premised on the acts of Gilbert and the UMW's other agents, or not at all.
29
In charging the jury, the trial judge first instructed the jury at length that the plaintiff's burden was to prove his case by a preponderance of the evidence, and that 'if the plaintiff carries the burden of proof by a preponderance of the evidence, however slight that preponderance might be, he has done all that is required of him and is entitled to a verdict.' In connection with substantive discussion of the state claim, he then remarked:
'Before the defendant may be held responsible for the acts of its agents in entering into a conspiracy during the course of a labor dispute, there must be clear proof that the particular conspiracy charged or the act generally of that nature had been expressly authorized or necessarily followed from a granted authority by the defendant, or that such conspiracy was subsequently ratified by the defendant after actual knowledge thereof.'
The phrase 'clear proof,' referred to just this once, was never explained. The possibility is strong that the jury either did not understand the phrase or completely overlooked it in the context of the lengthy charge given. No challenge is directly made to the charge, however, and it does not appear whether an objection was entered. Accordingly, we do not rest judgment on this point.
30
Other international union personnel were also later sent, perhaps in part because the union wanted to put its best foot forward in the NLRB proceedings, note 2, supra, which ensued. One such person testified,
'* * * I explained to them that the labor board was there investigating and that certainly any mass picketing would only cause them a great deal of trouble, and instructed them that they should limit the number of their pickets and under no circumstances have any violence or any threats of violence to any person coming into or near that area.'
31
About six days after the violence, an earthmoving equipment salesman driving by the entrance to the mine site stopped to ask how he might get to another mine. Gilbert was present among the picketers, and gave him instructions. Gilbert told the salesman that he 'couldn't get through' the road chosen, and should approach by another route; he said the salesman should tell any union men he met that he had spoken to Gilbert. A sinister cast can be put on this incident, but it shows clearly only that Gilbert was in control of the strike and that operations unrelated to Gray's Creek were not being interfered with. It is significant that the salesman did not claim to have been stopped by force or threatened in any way; it appears he did no more than seek directions, and received no more in return.
1
Norris-LaGuardia Act, § 6, 47 Stat. 71, 29 U.S.C. § 106 (1964 ed.). The section is quoted in full at p. 735, ante.
2
The principal legislative document, S.Rep.No. 163, 72 Cong., 1st Sess., pp. 19—21, is not very illuminating but it does at the end of its discussion of the section make reference to Frankfurter & Greene, The Labor Injunction 74—75 (1930). At these pages, to illustrate rulings on union responsibility that are deemed improper, that book states: "Authorization' has been found as a fact where the unlawful acts 'have been on such a large scale, and in point of time and place so connected with the admitted conduct of the strike, that it is impossible on the record here to view them in any other light than as done in furtherance of a common purpose and as part of a common plan'; where the union has failed to discipline the wrong-doer; where the union has granted strike benefits.' (Footnotes omitted.) See also id., at 220—221, n. 42; United Brotherhood of Carpenters and Joiners of America v. United States, 330 U.S. 395, 418—419 and n. 2, 67 S.Ct. 775, 787—788 (Frankfurter, J., dissenting).
| 89
|
383 U.S. 745
86 S.Ct. 1170
16 L.Ed.2d 239
UNITED STATES, Appellant,v.Herbert GUEST et al.
No. 65.
Argued Nov. 9, 1965.
Decided March 28, 1966.
Sol. Gen. Thurgood Marshall, for appellant.
Charles J. Bloch, Macon, Ga., for appellee James Spergeon Lackey.
James E. Hudson, Athens, Ga., for other appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
The six defendants in this case were indicted by a United States grand jury in the Middle District of Georgia for criminal conspiracy in violation of 18 U.S.C. § 241 (1964 ed.). That section provides in relevant part:
2
'If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;
3
'They shall be fined not more than $5,000 or imprisoned not more than ten years, or both.'
4
In five numbered paragraphs, the indictment alleged a single conspiracy by the defendants to deprive Negro citizens of the free exercise and enjoyment of several specified rights secured by the Constitution and laws of the United States.1 The defendants moved to dismiss the indictment on the ground that it did not charge an offense under the laws of the United States. The District Court sustained the motion and dismissed the indictment as to all defendants and all numbered paragraphs of the indictment. 246 F.Supp. 475.
5
The United States appealed directly to this Court under the Criminal Appeals Act, 18 U.S.C. § 3731.2 We postponed decision of the question of our jurisdiction to the hearing on the merits. 381 U.S. 932, 85 S.Ct. 1765. It is now apparent that this Court does not have jurisdiction to decide one of the issues sought to be raised on this direct appeal. As to the other issues, however, our appellate jurisdiction is clear, and for the reasons that follow, we reverse the judgment of the District Court. As in United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, decided today, we deal here with issues of statutory construction, not with issues of constitutional power.
I.
6
The first numbered paragraph of the indictment, reflecting a portion of the language of § 201(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a(a) (1964 ed.), alleged that the defendants conspired to injure, oppress, threaten, and intimidate Negro citizens in the free exercise and enjoyment of:
7
'The right to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of motion picture theaters, restaurants, and other places of public accommodation.'3
8
The District Court held that this paragraph of the indictment failed to state an offense against rights secured by the Constitution or laws of the United States. The court found a fatal flaw in the failure of the paragraph to include an allegation that the acts of the defendants were motivated by racial discrimination, an allegation the court thought essential to charge an interference with rights secured by Title II of the Civil Rights Act of 1964.4 The court went on to say that, in any event, 18 U.S.C. § 241 is not an available sanction to protect rights secured by that title because § 207(b) of the 1964 Act, 42 U.S.C. § 2000a—6(b) (1964 ed.), specifies that the remedies provided in Title II itself are to be the exclusive means of enforcing the rights the title secures.5
9
A direct appeal to this Court is available to the United States under the Criminal Appeals Act, 18 U.S.C. § 3731, from 'a decision or judgment * * * dismissing any indictment * * * or any count thereof, where such decision or judgment is based upon the * * * construction of the statute upon which the indictment * * * is founded.' In the present case, however, the District Court's judgment as to the first paragraph of the indictment was based, at least alternatively, upon its determination that this paragraph was defective as a matter of pleading. Settled principles of review under the Criminal Appeals Act therefore preclude our review of the District Court's judgment on this branch of the indictment. In United States v. Borden Co., 308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181, Chief Justice Hughes, speaking for a unanimous Court, set out these principles with characteristic clarity:
10
'The established principles governing our review are these: (1) Appeal does not lie from a judgment which rests on the mere deficiencies of the indictment as a pleading, as distinguished from a construction of the statute which underlies the indictment. (2) Nor will an appeal lie in a case where the District Court has considered the construction of the statute but has also rested its decision upon the independent ground of a defect in pleading which is not subject to our examination. In that case we cannot disturb the judgment and the question of construction becomes abstract. (3) This Court must accept the construction given to the indictment by the District Court as that is a matter we are not authorized to review. * * *' 308 U.S. at 193, 60 S.Ct. at 186.
11
See also United States v. Swift & Co., 318 U.S. 442, 444, 63 S.Ct. 684, 685, 87 L.Ed. 889.
12
The result is not changed by the circumstance that we have jurisdiction over this appeal as to the other paragraphs of the indictment. United States v. Borden, supra, involved an indictment comparable to the present one for the purposes of jurisdiction under the Criminal Appeals Act. In Borden, the District Court had held all four counts of the indictment invalid as a matter of construction of the Sherman Act, but had also held the third count defective as a matter of pleading. The Court accepted jurisdiction on direct appeal as to the first, second, and fourth counts of the indictment, but it dismissed the appeal as to the third count for want of jurisdiction. 'The Government's appeal does not open the whole case.' 308 U.S. 188, 193, 60 S.Ct. 182, 186.
13
It is hardly necessary to add that our ruling as to the Court's lack of jurisdiction now to review this aspect of the case implies no opinion whatsoever as to the correctness either of the District Court's appraisal of this paragraph of the indictment as a matter of pleading or of the court's view of the preclusive effect of § 207(b) of the Civil Rights Act of 1964.
II.
14
The second numbered paragraph of the indictment alleged that the defendants conspired to injure, oppress, threaten, and intimidate Negro citizens of the United States in the free exercise and enjoyment of:
15
'The right to the equal utilization, without discrimination upon the basis of race, of public facilities in the vicinity of Athens, Georgia, owned, operated or managed by or on behalf of the State of Georgia or any subdivision thereof.'
16
Correctly characterizing this paragraph as embracing rights protected by the Equal Protection Clause of the Fourteenth Amendment, the District Court held as a matter of statutory construction that 18 U.S.C. § 241 does not encompass any Fourteenth Amendment rights, and further held as a matter of constitutional law that 'any broader construction of § 241 * * * would render it void for indefiniteness.' 246 F.Supp., at 486. In so holding, the District Court was in error, as our opinion in United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, decided today, makes abundantly clear.
17
To be sure, Price involves rights under the Due Process Clause, whereas the present case involves rights under the Equal Protection Clause. But no possible reason suggests itself for concluding that § 241—if it protects Fourteenth Amendment rights protects rights secured by the one Clause but not those secured by the other. We have made clear in Price that when § 241 speaks of 'any right or privilege secured * * * by the Constitution or laws of the United States,' it means precisely that.
18
Moreover, inclusion of Fourteenth Amendment rights within the compass of 18 U.S.C. § 241 does not render the statute unconstitutionally vague. Since the gravamen of the offense is conspiracy, the requirement that the offender must act with a specific intent to interfere with the federal rights in question is satisfied. Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495; United States v. Williams, 341 U.S. 70, 93—95, 71 S.Ct. 581, 593—595, 95 L.Ed. 758 (dissenting opinion). And the rights under the Equal Protection Clause described by this paragraph of the indictment have been so firmly and precisely established by a consistent line of decisions in this Court,6 that the lack of specification of these rights in the language of § 241 itself can raise no serious constitutional question on the ground of vagueness or indefiniteness.
19
Unlike the indictment in Price, however, the indictment in the present case names no person alleged to have acted in any way under the color of state law. The argument is therefore made that, since there exist no Equal Protection Clause rights against wholly private action, the judgment of the District Court on this branch of the case must be affirmed. On its face, the argument is unexceptionable. The Equal Protection Clause speaks to the State or to those acting under the color of its authority.7
20
In this connection, we emphasize that § 241 by its clear language incorporates no more than the Equal Protection Clause itself; the statute does not purport to give substantive, as opposed to remedial, implementation to any rights secured by that Clause.8 Since we therefore deal here only with the bare terms of the Equal Protection Clause itself, nothing said in this opinion goes to the question of what kinds of other and broader legislation Congress might constitutionally enact under § 5 of the Fourteenth Amendment to implement that Clause or any other provision of the Amendment.9
21
It is a commonplace that rights under the Equal Protection Clause itself arise only where there has been involvement of the State or of one acting under the color of its authority. The Equal Protection Clause 'does not * * * add any thing to the rights which one citizen has under the Constitution against another.' United States v. Cruikshank, 92 U.S. 542, 554—555, 23 L.Ed. 588. As Mr. Justice Douglas more recently put it, 'The Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals.' United States v. Williams, 341 U.S. 70, 92, 71 S.Ct. 581, 593, 95 L.Ed. 758 (dissenting opinion). This has been the view of the Court from the beginning. United States v. Cruikshank, supra; United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290; Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835; Hodges v. United States, 203 U.S. 1, 27 S.Ct. 6, 51 L.Ed. 65; United States v. Powell, 212 U.S. 564, 29 S.Ct. 690, 53 L.Ed. 653. It remains the Court's view today. See, e.g., Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373; United States v. Price, 383 U.S. 787, 86 S.Ct. 1152.
22
This is not to say, however, that the involvement of the State need be either exclusive or direct. In a variety of situations the Court has found state action of a nature sufficient to create rights under the Equal Protection Clause even though the participation of the State was peripheral, or its action was only one of several co-operative forces leading to the constitutional violation. See, e.g., Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; Commonwealth of Pennsylvania v. Board of Directors of City Trusts of City of Philadelphia, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792; Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45; Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323; Lombard v. State of Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338; Griffin v. State of Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754; Robinson v. State of Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771; Evans v. Newton, supra.
23
This case, however, requires no determination of the threshold level that state action must attain in order to create rights under the Equal Protection Clause. This is so because, contrary to the argument of the litigants, the indictment in fact contains an express allegation of state involvement sufficient at least to require the denial of a motion to dismiss. One of the means of accomplishing the object of the conspiracy, according to the indictment, was 'By causing the arrest of Negroes by means of false reports that such Negroes had committed criminal acts.'10 In Bell v. State of Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822, three members of the Court expressed the view that a private businessman's invocation of state police and judicial action to carry out his own policy of racial discrimination was sufficient to create Equal Protection Clause rights in those against whom the racial discrimination was directed.11 Three other members of the Court strongly disagreed with that view,12 and three expressed no opinion on the question. The allegation of the extent of official involvement in the present case is not clear. It may charge no more than co-operative private and state action similar to that involved in Bell, but it may go considerably further. For example, the allegation is broad enough to cover a charge of active connivance by agents of the State in the making of the 'false reports,' or other conduct amounting to official discrimination clearly sufficient to constitute denial of rights protected by the Equal Protection Clause. Although it is possible that a bill of particulars, or the proof if the case goes to trial, would disclose no co-operative action of that kind by officials of the State, the allegation in enough to prevent dismissal of this branch of the indictment.
III.
24
The fourth numbered paragraph of the indictment alleged that the defendants conspired to injure, oppress, threaten, and intimidate Negro citizens of the United States in the free exercise and enjoyment of:
25
'The right to travel freely to and from the State of Georgia and to use highway facilities and other instrumentalities of interstate commerce within the State of Georgia.'13
26
The District Court was in error in dismissing the indictment as to this paragraph. The constitutional right to travel from one State to another, and necessarily to use the highways and other instrumentalities of interstate commerce in doing so, occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized. In Crandall v. State of Nevada, 6 Wall. 35, 18 L.Ed. 744, invalidating a Nevada tax on every person leaving the State by common carrier, the Court took as its guide the statement of Chief Justice Taney in the Passenger Cases, 7 How. 283, 492:
27
'For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.'
28
See 6 Wall., at 48—49.
29
Although the Articles of Confederation provided that 'the people of each State shall have free ingress and regress to and from any other State,'14 that right finds no explicit mention in the Constitution. The reason, it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.15 In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution. See Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 129, 45 L.Ed. 186; Twining v. State of New Jersey, 211 U.S. 78, 97, 29 S.Ct. 14, 18, 53 L.Ed. 97; Edwards v. People of State of California, 314 U.S. 160, 177, 62 S.Ct. 164, 168, 86 L.Ed. 119 (concurring opinion), 181, 62 S.Ct. 170 (concurring opinion); People of State of New York v. O'Neill, 359 U.S. 1, 6—8; 12—16, 79 S.Ct. 564, 568—570; 571—574, 3 L.Ed.2d 585 (dissenting opinion).
30
In Edwards v. People of State of California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119, invalidating a California law which impeded the free interstate passage of the indigent, the Court based its reaffirmation of the federal right of interstate travel upon the Commerce Clause. This ground of decision was consistent with precedents firmly establishing that the federal commerce power surely encompasses the movement in interstate commerce of persons as well as commodities. Gloucester Ferry Co. v. Commonwealth of Pennsylvania, 114 U.S. 196, 203, 5 S.Ct. 826, 827, 29 L.Ed. 158; Covington & Cincinnati Bridge Co. v. Commonwealth of Kentucky, 154 U.S. 204, 218—219, 14 S.Ct. 1087, 1092, 38 L.Ed. 962; Hoke v. United States, 227 U.S. 308, 320, 33 S.Ct. 281, 283, 57 L.Ed. 523; United States v. Hill, 248 U.S. 420, 423, 39 S.Ct. 143, 144, 63 L.Ed. 337. It is also well settled in our decisions that the federal commerce power authorizes Congress to legislate for the protection of individuals from violations of civil rights that impinge on their free movement in interstate commerce. Mitchell v. United States, 313 U.S. 80, 61 S.Ct. 873, 85 L.Ed. 1201; Henderson v. United States, 339 U.S. 816, 70 S.Ct. 843, 94 L.Ed. 1302; Boynton v. Commonwealth of Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206; Heart of Atlanta Motel v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258; Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290.
31
Although there have been recurring differences in emphasis within the Court as to the source of the constitutional right of interstate travel, there is no need here to canvass those differences further.16 All have agreed that the right exists. Its explicit recognition as one of the federal rights protected by what is now 18 U.S.C. § 241 goes back at least as far as 1904. United States v. Moore, C.C., 129 F. 630, 633. We reaffirm it now.17
32
This does not mean, of course, that every criminal conspiracy affecting an individual's right of free interstate passage is within the sanction of 18 U.S.C. § 241. A specific intent to interfere with the Federal right must be proved, and at a trial the defendants are entitled to a jury instruction phrased in those terms. Screws v. United States, 325 U.S. 91, 106—107, 65 S.Ct. 1031, 1037—1038, 89 L.Ed. 1495. Thus, for example, a conspiracy to rob an interstate traveler would not, of itself, violate § 241. But if the predominant purpose of the conspiracy is to impede or prevent the exercise of the right of interstate travel, or to oppress a person because of his exercise of that right, then, whether or not motivated by racial discrimination, the conspiracy becomes a proper object of the federal law under which the indictment in this case was brought. Accordingly, it was error to grant the motion to dismiss on this branch of the indictment.
33
For these reasons, the judgment of the District Court is reversed and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered.
34
Reversed and remanded.
35
Mr. Justice CLARK, with whom Mr. Justice BLACK and Mr. Justice FORTAS join, concurring.
36
I join the opinion of the Court in this case but believe it worthwhile to comment on its Part II in which the Court discusses that portion of the indictment charging the appellees with conspiring to injure, oppress, threaten and intimidate Negro citizens of the United States in the free exercise and enjoyment of:
37
'The right to the equal utilization, without discrimination upon the basis of race, of public facilities in the vicinity of Athens, Georgia, owned, operated or managed by or on behalf of the State of Georgia or any subdivision thereof.'
38
The appellees contend that the indictment is invalid since 18 U.S.C. § 241, under which it was returned, protects only against interference with the exercise of the right to equal utilization of state facilities, which is not a right 'secured' by the Fourteenth Amendment in the absence of state action. With respect to this contention the Court upholds the indictment on the ground that it alleges the conspiracy was accomplished, in part, '(b)y causing the arrest of Negroes by means of false reports that such Negroes had committed criminal acts.' The Court reasons that this allegation of the indictment might well cover active connivance by agents of the State in the making of these false reports or in carrying on other conduct amounting to official discrimination. By so construing the indictment, it finds the language sufficient to cover a denial of rights protected by the Equal Protection Clause. The Court thus removes from the case any necessity for a 'determination of the threshold level that state action must attain in order to create rights under the Equal Protection Clause.' A study of the language in the indictment clearly shows that the Court's construction is not a capricious one, and I therefore agree with that construction, as well as the conclusion that follows.
39
The Court carves out of its opinion the question of the power of Congress, under § 5 of the Fourteenth Amendment, to enact legislation implementing the Equal Protection Clause or any other provision of the Fourteenth Amendment. The Court's interpretation of the indictment clearly avoids the question whether Congress, by appropriate legislation, has the power to punish private conspiracies that interfere with Fourteenth Amendment rights, such as the right to utilize public facilities. My Brother BRENNAN, however, says that the Court's disposition constitutes an acceptance of appellees' aforesaid contention as to § 241. Some of his language further suggests that the Court indicates sub silentio that Congress does not have the power to outlaw such conspiracies. Although the Court specifically rejects any such connotation, ante, p. 755, it is, I believe, both appropriate and necessary under the circumstances here to say that there now can be no doubt that the specific language of § 5 empowers the Congress to enact laws punishing all conspiracies—with or without state action—that interfere with Fourteenth Amendment rights.
40
Mr. Justice HARLAN, concurring in part and dissenting in part.
41
I join Parts I and II1 of the Court's opinion, but I cannot subscribe to Part III in its full sweep. To the extent that it is there held that 18 U.S.C. § 241 (1964 ed.) reaches conspiracies, embracing only the action of private persons, to obstruct or otherwise interfere with the right of citizens freely to engage in interstate travel, I am constrained to dissent. On the other hand, I agree that § 241 does embrace state interference with such interstate travel, and I therefore consider that this aspect of the indictment is sustainable on the reasoning of Part II of the Court's opinion.
42
This right to travel must be found in the Constitution itself. This is so because § 241 covers only conspiracies to interfere with any citizen in the 'free exercise or enjoyment' of a right or privilege 'secured to him by the Constitution or laws of the United States,' and no 'right to travel' can be found in § 241 or in any other law of the United States. My disagreement with this phase of the Court's opinion lies in this: While past cases do indeed establish that there is a constitutional 'right to travel' between States free from unreasonable governmental interference, today's decision is the first to hold that such movement is also protected against private interference, and, depending on the constitutional source of the right, I think it either unwise or impermissible so to read the Constitution.
43
Preliminarily, nothing in the Constitution expressly secures the right to travel. In contract the Articles of Confederation provided in Art. IV:
44
'The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States * * * shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively * * *.' This right to 'free ingress and regress' was eliminated from the draft of the Constitution without discussion even though the main objective of the Convention was to create a stronger union. It has been assumed that the clause was dropped because it was so obviously an essential part of our federal structure that it was necessarily subsumed under more general clauses of the Constitution. See United States v. Wheeler, 254 U.S. 281, 294, 41 S.Ct. 133, 134, 65 L.Ed. 270. I propose to examine the several asserted constitutional bases for the right to travel, and the scope of its protection in relation to each source.
I.
45
Because of the close proximity of the right of ingress and regress to the Privileges and Immunities Clause of the Articles of Confederation it has long been declared that the right is a privilege and immunity of national citizenship under the Constitution. In the influential opinion of Mr. Justice Washington on circuit, Corfield v. Coryell, Fed.Cas.No. 3,230, 4 Wash.C.C. 371 (1825), the court addressed itself to the question—'what are the privileges and immunities of citizens in the several states?' Id., at 380. Corfield was concerned with a New Jersey statute restricting to state citizens the right to rake for oysters, a statute which the court upheld. In analyzing the Privileges and Immunities Clause of the Constitution, Art. IV, § 2, the court stated that it confined 'these expressions to those privileges and immunities which are, in their nature, fundamental,' and listed among them 'The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise * * *.' Id., at 380—381.
46
The dictum in Corfield was given general approval in the first opinion of this Court to deal directly with the right of free movement, Crandall v. State of Nevada, 6 Wall. 35, 18 L.Ed. 744, which struck down a Nevada statute taxing persons leaving the State. It is first noteworthy that in his concurring opinion Mr. Justice Clifford asserted that he would hold the statute void exclusively on commerce grounds for he was clear 'that the State legislature cannot impose any such burden upon commerce among the several States.' 6 Wall., at 49. The majority opinion of Mr. Justice Miller, however, eschewed reliance on the Commerce Clause and the Import-Export Clause and looked rather to the nature of the federal union:
47
'The people of these United States constitute one nation. * * * This government has necessarily a capital established by law * * *. That government has a right to call to this point any or all of its citizens to aid in its service * * *. The government, also, has its offices of secondary importance in all other parts of the country. On the sea-coasts and on the rivers it has its ports of entry. In the interior it has its land offices, its revenue offices, and its sub-treasuries. In all these it demands the services of its citizens, and is entitled to bring them to those points from all quarters of the nation, and no power can exist in a State to obstruct this right that would not enable it to defeat the purposes for which the government was established.' 6 Wall., at 43—44.
48
Accompanying this need of the Federal Government, the Court found a correlative right of the citizen to move unimpeded throughout the land:
49
'He has the right to come to the seat of government to assert any claim he may have upon that government, or to transact any business he may have with it. To seek its protection, to share its offices, to engage in administering its functions. He has a right to free access to its sea-ports, through which all the operations of foreign trade and commerce are conducted, to the sub-treasuries, the land offices, the revenue offices, and the courts of justice in the several States, and this right is in its nature independent of the will of any State over whose soil he must pass in the exercise of it.' 6 Wall., at 44.
50
The focus of that opinion, very clearly, was thus on impediments by the States on free movement by citizens. This is emphasized subsequently when Mr. Justice Miller asserts that this approach is 'neither novel nor unsupported by authority,' because it is, fundamentally, a question of the exercise of a State's taxing power to obstruct the functions of the Federal Government: '(T) he right of the States in this mode to impede or embarrass the constitutional operations of that government, or the rights which its citizens hold under it, has been uniformly denied.' 6 Wall., at 44—45.
51
Later cases, alluding to privileges and immunities, have in dicta included the right to free movement. See Paul v. Virginia, 8 Wall. 168, 180, 19 L.Ed. 357; Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 129, 45 L.Ed. 186; Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97.
52
Although the right to travel thus has respectable precedent to support its status as a privilege and immunity of national citizenship, it is important to note that those cases all dealt with the right of travel simply as affected by oppressive state action. Only one prior case in this Court, United States v. Wheeler, 254 U.S. 281, 41 S.Ct. 133, 65 L.Ed. 270, was argued precisely in terms of a right to free movement as against interference by private individuals. There the Government alleged a conspiracy under the predecessor of § 241 against the perpetrators of the notorious Bisbee Deportations.2 The case was argued straightforwardly in terms of whether the right to free ingress and egress, admitted by both parties to be a right of national citizenship, was constitutionally guaranteed against private conspiracies. The Brief for the Defendants in Error, whose counsel was Charles Evans Hughes, later Chief Justice of the United States, gives as one of its main points: 'So far as there is a right pertaining to Federal citizenship to have free ingress or egress with respect to the several States, the right as essentially one of protection against the action of the States themselves and of those acting under their authority.' Brief, at p.i. The Court, with one dissent, accepted this interpretation of the right of unrestricted interstate movement, observing that Crandall v. State of Nevada, supra, was inapplicable because, inter alia, it dealt with state action. 254 U.S. at 299, 41 S.Ct. at 136. More recent cases discussing or applying the right to interstate travel have always been in the context of oppressive state action. See, e.g., Edwards v. People of State of California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119, and other cases discussed, infra.3
53
It is accordingly apparent that the right to unimpeded interstate travel, regarded as a privilege and immunity of national citizenship, was historically seen as a method of breaking down state provincialism, and facilitating the creation of a true federal union. In the one case in which a private conspiracy to obstruct such movement was heretofore presented to this Court, the predecessor of the very statute we apply today was held not to encompass such a right.
II.
54
A second possible constitutional basis for the right to move among the States without interference is the Commerce Clause. When Mr. Justice Washington articulated the right in Corfield, it was in the context of a state statute impeding economic activity by outsiders, and he cast his statement in economic terms. 4 Wash.C.C., at 380—381. The two concurring Justices in Crandall v. State of Nevada, supra, rested solely on the commerce argument, indicating again the close connection between freedom of commerce and travel as principles of our federal union. In Edwards v. People of State of California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119, the Court held squarely that the right to unimpeded movement of persons is guaranteed against oppressive state legislation by the Commerce Clause, and declared unconstitutional a California statute restricting the entry of indigents into that State.
55
Application of the Commerce Clause to this area has the advantage of supplying a longer tradition of case law and more refined principles of adjudication. States do have rights of taxation and quarantine, see Edwards v. People of State of California, 314 U.S. at 184 (concurring opinion), 62 S.Ct. at 171 172, which just be weighed against the general right of free movement, and Commerce Clause adjudication has traditionally been the means of reconciling these interests. Yet this approach to the right to travel, like that found in the privileges and immunities cases, is concerned with the interrelation of state and federal power, not—with an exception to be dealt with in a moment—with private interference.
56
The case of In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092, may be thought to raise some doubts as to this proposition. There the United States sought to enjoin Debs and members of his union from continuing to obstruct—by means of a strike—interstate commerce and the passage of the mails. The Court held that Congress and the Executive could certainly act to keep the channels of interstate commerce open, and that a court of equity had no less power to enjoin what amounted to a public nuisance. It might be argued that to the extent Debs permits the Federal Government to obtain an injunction against the private conspiracy alleged in the present indictment,4 the criminal statute should be applicable as well on the ground that the governmental interest in both cases is the same namely to vindicate the underlying policy of the Commerce Clause. However, § 241 is not directed toward the vindication of governmental interests; it requires a private right under federal law. No such right can be found in Debs, which stands simply for the proposition that the Commerce Clause gives the Federal Government standing to sue on a basis similar to that of private individuals under nuisance law. The substantive rights of private persons to enjoin such impediments, of course, devolve from state not federal law; any seemingly inconsistent discussion in Debs would appear substantially vitiated by Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.
57
I cannot find in any of this past case law any solid support for a conclusion that the Commerce Clause embraces a right to be free from private interference. And the Court's opinion here makes no such suggestion.
III.
58
One other possible source for the right to travel should be mentioned. Professor Chafee, in his thoughtful study, 'Freedom of Movement,'5 finds both the privileges and immunities approach and the Commerce Clause approach unsatisfactory. After a thorough review of the history and cases dealing with the question he concludes that this 'valuable human right,' id., at 209, is best seen in due process terms:
59
'Already in several decisions the Court has used the Due Process Clause to safeguard the right of the members of any race to reside where they please inside a state, regardless of ordinances and injunctions. Why is not this clause equally available to assure the right to live in any state one desires? And unreasonable restraints by the national government on mobility can be upset by the Due Process Clause in the Fifth Amendment * * *. Thus the 'liberty' of all human beings which cannot be taken away without due process of law includes liberty of speech, press, assembly, religion, and also liberty of movement.' Id., at 192—193.
60
This due process approach to the right to unimpeded movement has been endorsed by this Court. In Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204, the Court asserted that 'The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without the due process of law under the Fifth Amendment,' id., at 125, 78 S.Ct. at 1118, citing Crandall v. State of Nevada, supra, and Edwards v. People of State of California, supra. It is true that the holding in that case turned essentially on statutory grounds. However, in Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992, the Court, applying this constitutional doctrine, struck down a federal statute forbidding members of Communist organizations to obtain passports. Both the majority and dissenting opinions affirmed the principle that the right to travel is an aspect of the liberty guaranteed by the Due Process Clause.
61
Viewing the right to travel in due process terms, of course, would clearly make it inapplicable to the present case, for due process speaks only to governmental action.
IV.
62
This survey of the various bases for grounding the 'right to travel' is conclusive only to the extent of showing that there has never been an acknowledged constitutional right to be free from private interference, and that the right in question has traditionally been seen and applied, whatever the constitutional underpinning asserted, only against governmental impediments. The right involved being as nebulous as it is, however, it is necessary to consider it in terms of policy as well as precedent.
63
As a general proposition it seems to me very dubious that the Constitution was intended to create certain rights of private individuals as against other private individuals. The Constitutional Convention was called to establish a nation, not to reform the common law. Even the Bill of Rights, designed to protect personal liberties, was directed at rights against governmental authority, not other individuals. It is true that there is a very narrow range of rights against individuals which have been read into the Constitution. In Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274, the Court held that implicit in the Constitution is the right of citizens to be free of private interference in federal elections. United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368, extended this coverage to primaries. Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429, applied the predecessor of § 241 to a conspiracy to injure someone in the custody of a United States marshal; the case has been read as dealing with a privilege and immunity of citizenship, but it would seem to have depended as well on extrapolations from statutory provisions providing for supervision of prisoners. The Court in In re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080, extending Logan, supra, declared that there was a right of federal citizenship to inform federal officials of violations of federal law. See also United States v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588, which announced in dicta a federal right to assemble to petition the Congress for a redress of grievances.
64
Whatever the validity of these cases on their own terms, they are hardly persuasive authorities for adding to the collection of privileges and immunities the right to be free of private impediments to travel. The cases just discussed are narrow, and are essentially concerned with the vindication of important relationships with the Federal Government—voting in federal elections, involvement in federal law enforcement, communicating with the Federal Government. The present case stands on a considerably different footing.
65
It is arguable that the same considerations which led the Court on numerous occasions to find a right of free movement against oppressive state action now justify a similar result with respect to private impediments. Crandall v. State of Nevada, supra, spoke of the need to travel to the capital, to serve and consult with the offices of government. A basic reason for the formation of this Nation was to facilitate commercial intercourse; intellectual, cultural, scientific, social, and political interests are likewise served by free movement. Surely these interests can be impeded by private vigilantes as well as by state action. Although this argument is not without force, I do not think it is particularly persuasive. There is a difference in power between States and private groups so great that analogies between the two tend to be misleading. If the State obstructs free intercourse of goods, people, or ideas, the bonds of the union are threatened; if a private group effectively stops such communication, there is at most a temporary breakdown of law and order, to be remedied by the exercise of state authority or by appropriate federal legislation.
66
To decline to find a constitutional right of the nature asserted here does not render the Federal Government helpless. As to interstate commerce by railroads, federal law already provides remedies for 'undue or unreasonable prejudice,' 24 Stat. 380, as amended, 49 U.S.C. § 3(1) (1964 ed.), which has been held to apply to racial discrimination. Henderson v. United States, 339 U.S. 816, 70 S.Ct. 843, 94 L.Ed. 1302. A similar statute applies to motor carriers, 49 Stat. 558, as amended, 49 U.S.C. § 316(d) (1964 ed.), and to air carriers, 72 Stat. 760, 49 U.S.C. § 1374(b) (1964 ed.). See Boynton v. Commonwealth of Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206; Fitzgerald v. Pan American World Airways, 2 Cir., 229 F.2d 499. The Civil Rights Act of 1964, 78 Stat. 243, deals with other types of obstructions to interstate commerce. Indeed, under the Court's present holding, it is arguable that any conspiracy to discriminate in public accommodations having the effect of impeding interstate commerce could be reached under § 241, unaided by Title II of the Civil Rights Act of 1964. Because Congress has wide authority to legislate in this area, it seems unnecessary—if prudential grounds are of any relevance, see Baker v. Carr, 369 U.S. 186, 258—259, 82 S.Ct. 691, 732—733, 7 L.Ed.2d 663 (Clark J., concurring)—to strain to find a dubious constitutional right.
V.
67
If I have succeeded in showing anything in this constitutional exercise, it is that until today there was no federal right to be free from private interference with interstate transit, and very little reason for creating one. Although the Court has ostensibly only 'discovered' this private right in the Constitution and then applied § 241 mechanically to punish those who conspire to threaten it, it should be recognized that what the Court has in effect done is to use this all-encompassing criminal statute to fashion federal common-law crimes, forbidden to the federal judiciary since the 1812 decision in United States v. Hudson, 7 Cranch 32, 3 L.Ed. 259. My Brother Douglas, dissenting in United States v. Classic, supra, noted well the dangers of the indiscriminate application of the predecessor of § 241: 'It is not enough for us to find in the vague penumbra of a statute some offense about which Congress could have legislated and then to particularize it as a crime because it is highly offensive.' 313 U.S. at 331—332, 61 S.Ct. at 1045, 85 L.Ed. 1368.
68
I do not gainsay that the immunities and commerce provisions of the Constitution leave the way open for the finding of this 'private' constitutional right, since they do not speak solely in terms of governmental action. Nevertheless, I think it wrong to sustain a criminal indictment on such an uncertain ground. To do so subjects § 241 to serious challenge on the score of vagueness and serves in effect to place this Court in the position of making criminal law under the name of constitutional interpretation. It is difficult to subdue misgivings about the potentialities of this decision.
69
I would sustain this aspect of the indictment only on the premise that it sufficiently alleges state interference with interstate travel, and on no other ground.
70
Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join, concurring in part and dissenting in part.
71
I join Part I of the Court's opinion. I reach the same result as the Court on that branch of the indictment discussed in Part III of its opinion but for other reasons. See footnote 3, infra. And I agree with so much of Part II as construes 18 U.S.C. § 241 (1964 ed.) to encompass conspiracies to injure, oppress, threaten or intimidate citizens in the free exercise or enjoyment of Fourteenth Amendment rights and holds that, as so construed, § 241 is not void for indefiniteness. I do not agree, however, with the remainder of Part II which holds, as I read the opinion, that a conspiracy to interfere with the exercise of the right to equal utilization of state facilities is not, within the meaning of § 241, a conspiracy to interfere with the exercise of a 'right * * * secured * * * by the Constitution' unless discriminatory conduct by state officers is involved in the alleged conspiracy.
I.
72
The second numbered paragraph of the indictment charges that the defendants conspired to injure, oppress, threaten, and intimidate Negro citizens in the free exercise and enjoyment of '(t)he right to the equal utilization, without discrimination upon the basis of race, of public facilities * * * owned, operated or managed by or on behalf of the State of Georgia or any subdivision thereof.' Appellees contend that as a matter of statutory construction § 241 does not reach such a conspiracy. They argue that a private conspiracy to interfere with the exercise of the right to equal utilization of the state facilities described in that paragraph is not, within the meaning of § 241, a conspiracy to interfere with the exercise of a right 'secured' by the Fourteenth Amendment because 'there exist no Equal Protection Clause rights against wholly private action.'
73
The Court deals with this contention by seizing upon an allegation in the indictment concerning one of the means employed by the defendants to achieve the object of the conspiracy. The indictment alleges that the object of the conspiracy was to be achieved, in part, '(b)y causing the arrest of Negroes by means of false reports that such Negroes had committed criminal acts * * *.' The Court reads this allegation as 'broad enough to cover a charge of active connivance by agents of the State in the making of the 'false reports,' or other conduct amounting to official discrimination clearly sufficient to constitute denial of rights protected by the Equal Protection Clause,' and the Court holds that this allegation, so construed, is sufficient to 'prevent dismissal of this branch of the indictment.'1 I understand this to mean that, no matter how compelling the proof that private conspirators murdered, assaulted, or intimidated Negroes in order to prevent their use of state facilities, the prosecution under the second numbered paragraph must fail in the absence of proof of active connivance of law enforcement officers with the private conspirators in causing the false arrests.
74
Hence, while the order dismissing the second numbered paragraph of the indictment is reversed, severe limitations on the prosecution of that branch of the indictment are implicitly imposed. These limitations could only stem from an acceptance of appellees' contention that, because there exist no Equal Protection Clause rights against wholly private action, a conspiracy of private persons to interfere with the right to equal utilization of state facilities described in the second numbered paragraph is not a conspiracy to interfere with a 'right * * * secured * * * by the Constitution' within the meaning of § 241. In other words, in the Court's view the only right referred to in the second numbered paragraph that is, for purposes of § 241, 'secured * * * by the Constitution' is a right to be free—when seeking access to state facilities—from discriminatory conduct by state officers or by persons acting in concert with state officers.2
75
I cannot agree with that construction of § 241. I am of the opinion that a conspiracy to interfere with the right to equal utilization of state facilities described in the second numbered paragraph of the indictment is a conspiracy to interfere with a 'right * * * secured * * * by the Constitution' within the meaning of § 241—without regard to whether state officers participated in the alleged conspiracy. I believe that § 241 reaches such a private conspiracy, not because the Fourteenth Amendment of its own force prohibits such a conspiracy, but because § 241, as an exercise of congressional power under § 5 of that Amendment, prohibits all conspiracies to interfere with the exercise of a 'right * * * secured * * * by the Constitution' and because the right to equal utilization of state facilities is a 'right * * * secured * * * by the Constitution' within the meaning of that phrase as used in § 241.3
76
My difference with the Court stems from its construction of the term 'secured' as used in § 241 in the phrase a 'right * * * secured * * * by the Constitution or laws of the United States.' The Court tacitly construes the term 'secured' so as to restrict the coverage of § 241 to those rights that are 'fully protected' by the Constitution or another federal law. Unless private interferences with the exercise of the right in question are prohibited by the Constitution itself or another federal law, the right cannot, in the Court's view, be deemed 'secured * * * by the Constitution or laws of the United States' so as to make § 241 applicable to a private conspiracy to interfere with the exercise of that right. The Court then premises that neither the Fourteenth Amendment nor any other federal law4 prohibits private interferences with the exercise of the right to equal utilization of state facilities.
77
In my view, however, a right can be deemed 'secured * * * by the Constitution or laws of the United States,' within the meaning of § 241, even though only governmental interferences with the exercise of the right are prohibited by the Constitution itself (or another federal law). The term 'secured' means 'created by, arising under, or dependent upon,' Logan v. United States, 144 U.S. 263, 293, 12 S.Ct. 617, 626, 36 L.Ed. 429, rather than 'fully protected.' A right is 'secured * * * by the Constitution' within the meaning of § 241 if it emanates from the Constitution, if it finds its source in the Constitution. Section 241 must thus be viewed, in this context, as an exercise of congressional power to amplify prohibitions of the Constitution addressed, as is invariably the case, to government officers; contrary to the view of the Court, I think we are dealing here with a statute that seeks to implement the Constitution, not with the 'bare terms' of the Constitution. Section 241 is not confined to protecting rights against private conspiracies that the Constitution or another federal law also protects against private interferences. No such duplicative function was envisioned in its enactment. See Appendix in United States v. Price, 383 U.S. 807, 86 S.Ct. 1163. Nor has this Court construed § 241 in such a restrictive manner in other contexts. Many of the rights that have been held to be encompassed within § 241 are not additionally the subject of protection of specific federal legislation or of any provision of the Constitution addressed to private individuals. For example, the prohibitions and remedies of § 241 have been declared to apply, without regard to whether the alleged violator was a government officer, to interferences with the right to vote in a federal election, Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274, or primary, United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368; the right to discuss public affairs or petition for redress of grievances, United States v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588, cf. Hague v. CIO, 307 U.S. 496, 512—513, 59 S.Ct. 954, 962—963, 83 L.Ed. 1423 (opinion of Roberts, J.); Collins v. Hardyman, 341 U.S. 651, 663, 71 S.Ct. 937, 942, 96 L.Ed. 1253 (dissenting opinion); the right to be protected against violence while in the lawful custody of a federal officer, Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; and the right to inform of violations of federal law, In re Quarles and Butler, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080. The full import of our decision in United States v. Price, 383 U.S. 787, at pp. 796—807, 86 S.Ct. 1152, at pp. 1158 1163, regarding § 241 is to treat the rights purportedly arising from the Fourteenth Amendment in parity with those rights just enumerated, arising from other constitutional provisions. The reach of § 241 should not vary with the particular constitutional provision that is the source of the right. For purposes of applying § 241 to a private conspiracy, the standard used to determine whether, for example, the right to discuss public affairs or the right to vote in a federal election is a 'right * * * secured * * * by the Constitution' is the very same standard to be used to determine whether the right to equal utilization of state facilities is a 'right * * * secured * * * by the Constitution.'
78
For me, the right to use state facilities without discrimination on the basis of race is, within the meaning of § 241, a right created by, arising under and dependent upon the Fourteenth Amendment and hence is a right 'secured' by that Amendment. It finds its source in that Amendment. As recognized in Strauder v. West Virginia, 100 U.S. 303, 310, 25 L.Ed. 664, 'The Fourteenth Amendment makes no attempt to enumerate the rights it designed to protect. It speaks in general terms, and those are as comprehensive as possible. Its language is prohibitory; but every prohibition implies the existence of rights * * *.' The Fourteenth Amendment commands the State to provide the members of all races with equal access to the public facilities it owns or manages, and the right of a citizen to use those facilities without discrimination on the basis of race is a basic corollary of this command. Cf. Brewer v. Hoxie School District No. 46, etc., 238 F.2d 91 (C.A.8th Cir. 1956). Whatever may be the status of the right to equal utilization of privately owned facilities, see generally Bell v. State of Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822, it must be emphasized that we are here concerned with the right to equal utilization of public facilities owned or operated by or on behalf of the State. To deny the existence of this right or its constitutional stature is to deny the history of the last decade, or to ignore the role of federal power, predicated on the Fourteenth Amendment, in obtaining nondiscriminatory access to such facilities. It is to do violence to the common understanding, an understanding that found expression in Titles III and IV of the Civil Rights Act of 1964, 78 Stat. 246, 42 U.S.C. §§ 2000b, 2000c (1964 ed.), dealing with state facilities. Those provisions reflect the view that the Fourteenth Amendment creates the right to equal utilization of state facilities. Congress did not preface those titles with a provision comparable to that in Title II5 explicitly creating the right to equal utilization of certain privately owned facilities. Congress rightly assumed that a specific legislative declaration of the right was unnecessary, that the right arose from the Fourteenth Amendment itself.
79
In reversing the District Court's dismissal of the second numberee paragraph, I would therefore hold that proof at the trial of the conspiracy charged to the defendants in that paragraph will establish a violation of § 241 without regard to whether there is also proof that state law enforcement officers actively connived in causing the arrests of Negroes by means of false reports.
II.
80
My view as to the scope of § 241 requires that I reach the question of constitutional power—whether § 241 or legislation indubitably designed to punish entirely private conspiracies to interfere with the exercise of Fourteenth Amendment rights constitutes a permissible exercise of the power granted to Congress by § 5 of the Fourteenth Amendment 'to enforce, by appropriate legislation, the provisions of' the Amendment.
81
A majority of the members of the Court6 expresses the view today that § 5 empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth Amendment rights, whether or not state officers or others acting under the color of state law are implicated in the conspiracy. Although the Fourteenth Amendment itself, according to established doctrine, 'speaks to the State or to those acting under the color of its authority,' legislation protecting rights created by that Amendment, such as the right to equal utilization of state facilities, need not be confined to punishing conspiracies in which state officers participate. Rather, § 5 authorizes Congress to make laws that it concludes are reasonably necessary to protect a right created by and arising under that Amendment; and Congress is thus fully empowered to determine that punishment of private conspiracies interfering with the exercise of such a right is necessary to its full protection. It made that determination in enacting § 241, see the Appendix in United States v. Price, 383 U.S. 807, 86 S.Ct. 1163, and, therefore § 241 is constitutional legislation as applied to reach the private conspiracy alleged in the second numbered paragraph of the indictment.
82
I acknowledge that some of the decisions of this Court, most notably an aspect of the Civil Rights Cases, 109 U.S. 3, 11, 3 S.Ct. 18, 21, 27 L.Ed. 835, have declared that Congress' power under s 5 is confined to the adoption of 'appropriate legislation for correcting the effects of * * * prohibited state law and state acts, and thus to render them effectually null, void, and innocuous.' I do not accept—and a majority of the Court today rejects—this interpretation of § 5. It reduces the legislative power to enforce the provisions of the Amendment to that of the judiciary;7 and it attributes a far too limited objective to the Amendment's sponsors.8 Moreover, the language of § 5 of the Fourteenth Amendment and § 2 of the Fifteenth Amendment are virtually the same, and we recently held in State of South Carolina v. Katzenbach, 383 U.S. 301, at 326, 86 S.Ct. 803, at 817, that '(t)he basic test to be applied in a case involving § 2 of the Fifteenth Amendment is the same as in all cases concerning the express powers of Congress with relation to the reserved powers of the States.' The classic formulation of that test by Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579, was there adopted:
83
'Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the latter and spirit of the constitution, are constitutional.'
84
It seems to me that this is also the standard that defines the scope of congressional authority under § 5 of the Fourteenth Amendment. Indeed, State of South Carolina v. Katzenbach approvingly refers to Ex parte State of Virginia, 100 U.S. 339, 345—346, 25 L.Ed. 676, a case involving the exercise of the congressional power under § 5 of the Fourteenth Amendment, as adopting the McCulloch v. Maryland formulation for 'each of the Civil War Amendments.'
85
Viewed in its proper perspective, § 5 of the Fourteenth Amendment appears as a positive grant of legislative power, authorizing Congress to exercise its discretion in fashioning remedies to achieve civil and political equality for all citizens. Non one would deny that Congress could enact legislation directing state officials to provide Negroes with equal access to state schools, parks and other facilities owned or operated by the State. Nor could it be denied that Congress has the power to punish state officers who, in excess of their authority and in violation of state law, conspire to threaten, harass and murder Negroes for attempting to use these facilities.9 And I can find no principle of federalism nor word of the Constitution that denies Congress power to determine that in order adequately to protect the right to equal utilization of state facilities, it is also appropriate to punish other individuals—not state officers themselves and not acting in concert with state officers—who engage in the same brutal conduct for the same misguided purpose.10
III.
86
Section 241 is certainly not model legislation for punishing private conspiracies to interfere with the exercise of the right of equal utilization of state facilities. It deals in only general language 'with Federal rights, and with all Federal rights' and protects them 'in the lump,' United States v. Mosley, 238 U.S. 383, 386, 35 S.Ct. 904, 905, 59 L.Ed. 1355; it protects in most general terms 'any right or privilege so secured * * * by the Constitution and laws of the United States.' Congress has left it to the courts to mark the bounds of those words, to determine on a case-by-case basis whether the right purportedly threatened is a federal right. That determination may occur after the conduct charged has taken place or it may not have been anticipated in prior decisions; 'a penumbra of rights may be involved, which none can know until decision has been made and infraction may occur before it is had.'11 Reliance on such wording plainly brings § 241 close to the danger line of being void for vagueness.
87
But, as the Court holds, a stringent scienter requirement saves § 241 from condemnation as a criminal statute failing to provide adequate notice of the proscribed conduct.12 The gravamen of the offense is conspiracy, and therefore, like a statute making certain conduct criminal only if it is done 'willfully,' § 241 requires proof of a specific intent for conviction. We have construed § 241 to require proof that the persons charged conspired to act in defiance, or in reckless disregard, of an announced rule making the federal right specific and definite. United States v. Williams, 341 U.S. 70, 93 95, 71 S.Ct. 581, 593—595, 95 L.Ed. 758 (opinion of Douglas, J.); Screws v. United States, 325 U.S. 91, 101—107, 65 S.Ct. 1031, 1035 1038, 89 L.Ed. 1495 (opinion of Douglas, J.) (involving the predecessor to 18 U.S.C. § 242). Since this case reaches us on the pleadings, there is no occasion to decide now whether the Government will be able on trial to sustain the burden of proving the requisite specific intent vis-a -vis the right to travel freely from State to State or the right to equal utilization of state facilities. Compare James v. United States, 366 U.S. 213, 221—222, 81 S.Ct. 1052, 1056—1057, 6 L.Ed.2d 246 (opinion of Warren, C.J.). In any event, we may well agree that the necessity to discharge that burden can imperil the effectiveness of § 241 where, as is often the case, the pertinent constitutional right must be implied from a grant of congressional power or a prohibition upon the exercise of governmental power. But since the limitation on the statute's effectiveness derives from Congress' failure to define—with any measure of specificity—the rights encompassed, the remedy is for Congress to write a law without this defect. To paraphrase my Brother Douglas' observation in Screws v. United States, 325 U.S. at 105, 65 S.Ct. at 1037, 89 L.Ed. 1495, addressed to a companion statute with the same shortcoming, if Congress desires to give the statute more definite scope, it may find ways of doing so.
1
The indictment, filed on October 16, 1964, was as follows:
'THE GRAND JURY CHARGES:
'Commencing on or about January 1, 1964, and continuing to the date of this indictment, HERBERT GUEST, JAMES SPERGEON LACKEY, CECIL WILLIAM MYERS, DENVER WILLIS PHILLIPS, JOSEPH HOWARD SIMS, and GEORGE HAMPTON TURNER, did, within the Middle District of Georgia, Athens Division, conspire together, with each other, and with other persons to the Grand Jury unknown, to injure, oppress, threaten, and intimidate Negro citizens of the United States in the vicinity of Athens, Georgia, in the free exercise and enjoyment by said Negro citizens of the following rights and privileges secured to them by the Constitution and laws of the United States:
'1. The right to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of motion picture theaters, restaurants, and other places of public accommodation;
'2. The right to the equal utilization, without discrimination upon the basis of race, of public facilities in the vicinity of Athens, Georgia,
owned, operated or managed by or on behalf of the State of Georgia or any subdivision thereof;
'3. The right to the full and equal use on the same terms as white citizens of the public streets and highways in the vicinity of Athens, Georgia;
'4. The right to travel freely to and from the State of Georgia and to use highway facilities and other instrumentalities of interstate commerce within the State of Georgia;
'5. Other rights exercised and enjoyed by white citizens in the vicinity of Athens, Georgia.
'It was a part of the plan and purpose of the conspiracy that its objects be achieved by various means, including the following:
'1. By shooting Negroes;
'2. By beating Negroes;
'3. By killing Negroes;
'4. By damaging and destroying property of Negroes;
'5. By pursuing Negroes in automobiles and threatening them with guns;
'6. By making telephone calls to Negroes to threaten their lives, property, and persons, and by making such threats in person;
'7. By going in disguise on the highway and on the premises of other persons;
'8. By causing the arrest of Negroes by means of false reports that such Negroes had committed criminal acts; and
'9. By burning crosses at night in public view.
'All in violation of Section 241, Title 18, United States Code.'
The only additional indication in the record concerning the factual details of the conduct with which the defendants were charged is the statement of the District Court that: 'It is common knowledge that two of the defendants, Sims and Myers, have already been prosecuted in the Superior Court of Madison County, Georgia for the murder of Lemuel A. Penn and by a jury found not guilty.' 246 F.Supp. 475, 487.
2
This appeal concerns only the first four numbered paragraphs of the indictment. The Government conceded in the District Court that the fifth paragraph added nothing to the indictment, and no question is raised here as to the dismissal of that paragraph.
3
Section 201(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a(a) (1964 ed.), provides:
'All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.'
The criteria for coverage of motion picture theaters by the Act are stated in §§ 201(b)(3) and 201(c)(3), 42 U.S.C. §§ 2000a(b)(3) and 2000a(c)(3) (1964 ed.); the criteria for coverage of restaurants are stated in §§ 201(b)(2) and 201(c)(2), 42 U.S.C. §§ 2000a(b)(2) and 2000a(c)(2) (1964 ed.). No issue is raised here as to the failure of the indictment to allege specifically that the Act is applicable to the places of public accommodation described in this paragraph of the indictment.
4
The District Court said: 'The Government contends that the rights enumerated in paragraph 1 stem from Title 2 of the Civil Rights Act of 1964 and thus automatically come within the purview of § 241. The Government conceded on oral argument that paragraph one would add nothing to the indictment absent the Act. It is not clear how the rights mentioned in paragraph one can be said to come from the Act because § 201(a), upon which the draftsman doubtless relied, lists the essential element 'without discrimination or segregation on the ground of race, color, religion, or national origin.' This element is omitted from paragraph one of the indictment, and does not appear in the charging part of the indictment. The Supreme Court said in (United States v.) Cruikshank, supra, 92 U.S. (542) at page 556 (23 L.Ed. 588), where deprivation of right to vote was involved,
"We may suspect that 'race' was the cause of the hostility; but it is not so averred. This is material to a description of the substance of the offense and cannot be supplied by implication. Everything essential must be charged positively, not inferentially. The defect here is not in form, but in substance." 246 F.Supp. 475, 484.
5
Section 207(b) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a—6(b) (1964 ed.), states:
'The remedies provided in this title shall be the exclusive means of enforcing the rights based on this title, but nothing in this title shall preclude any individual or any State or local agency from asserting any right based on any other Federal or State law not inconsistent with this title, including any statute or ordinance requiring nondiscrimination in public establishments or accommodations, or from pursuing any remedy, civil or criminal, which may be available for the vindication or enforcement of such right.'
Relying on this provision and its legislative history, the District Court said: 'It seems crystal clear that the Congress in enacting the Civil Rights Act of 1964 did not intend to subject anyone to any possible criminal penalties except those specifically provided for in the Act itself.' 246 F.Supp., at 485.
6
See, e.g., Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (schools); New Orleans City Park Improvement Assn. v. Detiege, 358 U.S. 54, 79 S.Ct. 99, 3 L.Ed.2d 46; Wright v. State of Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349; Watson v. City of Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529; City of New Orleans v. Barthe, 376 U.S. 189, 84 S.Ct. 636, 11 L.Ed.2d 602 (parks and playgrounds); Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776 (golf course); Mayor and City Council of Baltimore City v. Dawson, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774 (beach); Muir v. Louisville Park Theatrical Assn., 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112 (auditorium); Johnson v. State of Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195 (courthouse); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (parking garage); Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762 (airport).
7
'No State shall * * * deny to any person within its jurisdiction the equal protection of the laws.'
8
See p. 747, supra.
9
Thus, contrary to the suggestion in Mr. Justice BRENNAN'S separate opinion, nothing said in this opinion has the slightest bearing on the validity or construction of Title III or Title IV of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000b, 2000c (1964 ed.).
10
See note 1, supra.
11
378 U.S. 226, at 242, 84 S.Ct. 1814, at 1823 (separate opinion of Mr. Justice Douglas); id., at 286, 84 S.Ct. at 1847 (separate opinion of Mr. Justice Goldberg).
12
Id., at 318, 84 S.Ct. at 1864 (dissenting opinion of Mr. Justice Black).
13
The third numbered paragraph alleged that the defendants conspired to injure, oppress, threaten, and intimidate Negro citizens of the United States in the free exercise and enjoyment of:
'The right to the full and equal use on the same terms as white citizens of the public streets and highways in the vicinity of Athens, Georgia.'
Insofar as the third paragraph refers to the use of local public facilities, it is covered by the discussion of the second numbered paragraph of the indictment in Part II of this opinion. Insofar as the third paragraph refers to the use of streets or highways in interstate commerce, it is covered by the present discussion of the fourth numbered paragraph of the indictment.
14
Art. IV, Articles of Confederation.
15
See Chafee, Three Human Rights in the Constitution of 1787, at 185 (1956).
16
The District Court relied heavily on United States v. Wheeler, 254 U.S. 281, 41 S.Ct. 133, 65 L.Ed. 270, in dismissing this branch of the indictment. That case involved an alleged conspiracy to compel residents of Arizona to move out of that State. The right of interstate travel was, therefore, not directly involved. Whatever continuing validity Wheeler may have as restricted to its own facts, the dicta in the Wheeler opinion relied on by the District Court in the present case have been discredited in subsequent decisions. Cf. Edwards v. People of State of California, 314 U.S. 160, 177, 180, 62 S.Ct. 164, 168, 170, 86 L.Ed. 119 (Douglas, J., concurring); United States v. Williams, 341 U.S. 70, 80, 71 S.Ct. 581, 586, 95 L.Ed. 758.
17
As emphasized in Mr. Justice HARLAN'S separate opinion, § 241 protects only against interference with rights secured by other federal laws or by the Constitution itself. The right to interstate travel is a right that the Constitution itself guarantees, as the cases cited in the text make clear. Although these cases in fact involved governmental interference with the right of free interstate travel, their reasoning fully supports the conclusion that the constitutional right of interstate travel is a right secured against interference from any source whatever, whether governmental or private. In this connection, it is important to reiterate that the right to travel freely from State to State finds constitutional protection that is quite independent of the Fourteenth Amendment.
We are not concerned here with the extent to which interstate travel may be regulated or controlled by the exercise of a State's police power acting within the confines of the Fourteenth Amendment. See Edwards v. People of State of California, 314 U.S. 160, 184, 62 S.Ct. 164, 171—172, 86 L.Ed. 119 (concurring opinion); People of State of New York v. O'Neill, 359 U.S. 1, 6—8, 79 S.Ct. 564, 568—570, 3 L.Ed.2d 585. Nor is there any issue here as to the permissible extent of federal interference with the right within the confines of the Due Process Clause of the Fifth Amendment. Cf. Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179; 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.
1
The action of three of the Justices who join the Court's opinion in nonetheless cursorily pronouncing themselves on the far-reaching constitutional questions deliberately not reached in Part II seems to me, to say the very least, extraordinary.
2
For a discussion of the deportations, see The President's Mediation Comm'n, Report on the Bisbee, Deportations (November 6, 1917).
3
The Court's reliance on United States v. Moore, C.C., 129 F. 630, is misplaced. That case held only that it was not a privilege or immunity to organize labor unions. The reference to 'the right to pass from one state to any other' was purely incidental dictum.
4
It is not even clear that an equity court would enjoin a conspiracy of the kind alleged here, for traditionally equity will not enjoin a crime. See Developments in the Law—Injunctions, 78 Harv.L.Rev. 994, 1013—1018 (1965).
5
In Three Human Rights in the Constitution of 1787, at 162 (1956).
1
As I read the indictment, the allegation regarding the false arrest relates to all the other paragraphs and not merely, as the Court suggests, to the second numbered paragraph of the indictment. See n. 1 in the Court's opinion. Hence, assuming that, as maintained by the Court, the allegation could be construed to encompass discriminatory conduct by state law enforcement officers, it would be a sufficient basis for preventing the dismissal of each of the other paragraphs of the indictment. The right to be free from discriminatory conduct by law enforcement officers while using privately owned places of public accommodation (paragraph one) or while traveling from State to State (paragraphs three and four), or while doing anything else, is unquestionably secured by the Equal Protection Clause. It would therefore be unnecessary to decide whether the right to travel from State to State is itself a right secured by the Constitution or whether paragraph one is defective either because of the absence of an allegation of a racial discriminatory motive or because of the exclusive remedy provision of the Civil Rights Act of 1964, § 207(b), 78 Stat. 246, 42 U.S.C. § 2000a—6(b) (1964 ed.).
2
I see no basis for a reading more consistent with my own view in the isolated statement in the Court's opinion that 'the rights under the Equal Protection Clause described by this paragraph (two) of the indictment have been * * * firmly and precisely established by a consistent line of decisions in this Court * * *.'
3
Similarly, I believe that § 241 reaches a private conspiracy to interfere with the right to travel from State to State. I therefore need not reach the question whether the Constitution of its own force prohibits private interferences with that right; for I construe § 241 to prohibit such interferences, and as so construed I am of the opinion that § 241 is a valid exercise of congressional power.
4
This premise is questionable. Title III of the Civil Rights Act of 1964, 78 Stat. 246, 42 U.S.C. § 2000b (1964 ed.), authorizes the Attorney General on complaint from an individual that he is 'being denied equal utilization of any public facility which is owned, operated, or managed by or on behalf of any State or subdivision,' to commence a civil action 'for such relief as may be appropriate' and against such parties as are 'necessary to the grant of effective relief.' Arguably this would authorize relief against private parties not acting in concert with state officers. (This title of the Act does not have an exclusive remedy similar to § 207(b) of Title II, 42 U.S.C. § 2000a—6(b).)
The Court affirmatively disclaims any intention to deal with Title III of the Civil Rights Act of 1964 in connection with the second numbered paragraph of the indictment. But, as the District Judge observed in his opinion, the Government maintained that the right described in that paragraph was 'secured' by the Fourteenth Amendment and, 'additionally,' by Title III of the Civil Rights Act of 1964. 246 F.Supp., at 484. That position was not effectively abandoned in this Court.
5
'All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.' 42 U.S.C. § 2000a(a) (1964 ed.).
6
The majority consists of the Justices joining my Brother CLARK'S opinion and the Justice joining this opinion. The opinion of Mr. Justice STEWART construes § 241 as applied to the second numbered paragraph to require proof of active participation by state officers in the alleged conspiracy and that opinion does not purport to deal with this question.
7
Congress, not the judiciary, was viewed as the more likely agency to implement fully the guarantees of equality, and thus it could be presumed the primary purpose of the Amendment was to augment the power of Congress, not the judiciary. See James, The Framing of the Fourteenth Amendment 184 (1956); Harris, The Quest for Equality 53—54 (1960); Frantz, Congressional Power to Enforce the Fourteenth Amendment Against Private Acts, 73 Yale L.J. 1353, 1356 (1964).
8
As the first Mr. Justice Harlan said in dissent in the Civil Rights Cases, 109 U.S. at 54, 3 S.Ct. at 52, 27 L.Ed. 835: 'It was perfectly well known that the great danger to the equal enjoyment by citizens of their rights, as citizens, was to be apprehended, not altogether from unfriendly state legislation, but from the hostile action of corporations and individuals in the states. And it is to be presumed that it was intended, by that section (§ 5), to clothe congress with power and authority to meet that danger.' See United States v. Price, 383 U.S. 787, at 803 806, 86 S.Ct. 1152, at 1161—1163, and Appendix.
9
United States v. Price, 383 U.S. 787, 86 S.Ct. 1152. See Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495; Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492.
10
Cf. Heart of Atlanta Motel v. United States, 379 U.S. 241, 258, 85 S.Ct. 348, 358, 13 L.Ed.2d 258, applying the settled principle expressed in United States v. Darby, 312 U.S. 100, 118, 61 S.Ct. 451, 459, 85 L.Ed. 609, that the power of Congress over interstate commerce 'extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end * * *.'
11
Mr. Justice Rutledge in Screws v. United States, 325 U.S. at 130, 65 S.Ct. at 1050.
12
Ante, pp. 753—754. See generally, Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 342, 72 S.Ct. 329, 331, 96 L.Ed. 367; American Communications Assn. v. Douds, 339 U.S. 382, 412 413, 70 S.Ct. 674, 690—692, 94 L.Ed. 925; United States v. Ragen, 314 U.S. 513, 524, 62 S.Ct. 374, 378—379, 86 L.Ed. 383; Gorin v. United States, 312 U.S. 19, 27—28, 61 S.Ct. 429, 433—434, 85 L.Ed. 488; Hygrade Provision Co. v. Sherman, 266 U.S. 497, 501—503, 45 S.Ct. 141, 142—143, 69 L.Ed. 402; Omaechevarria v. State of Idaho, 246 U.S. 343, 348, 38 S.Ct. 323, 325, 62 L.Ed. 763.
| 12
|
383 U.S. 825
86 S.Ct. 1148
16 L.Ed.2d 292
Hugo DeGREGORY, Appellant,v.ATTORNEY GENERAL OF the STATE OF NEW HAMPSHIRE.
No. 396.
Argued Feb. 24, 1966.
Decided April 4, 1966.
Howard S. Whiteside, Boston, Mass., for appellant.
R. Peter Shapiro, Concord, N.H., for appellee.
Opinion of the Court by Mr. Justice DOUGLAS, announced by Mr. Justice BRENNAN.
1
This is the third time that the constitutional rights of appellant challenged in investigations by New Hampshire into subversion have been brought to us.1 The present case stems from an investigation by the Attorney General of the State under Rev.Stat.Ann. § 588:8—a (1965 Supp.), enacted in 1957, which provides in part:
2
'At any time when the attorney general has information which he deems reasonable or reliable relating to violations of the provisions of this chapter he shall make full and complete investigation thereof and shall report to the general court the results of this investigation, together with his recommendations, if any, for legislation. * * * (T)he attorney general is hereby authorized to make public such information received by him, testimony given before him, and matters handled by him as he deems fit to effectuate the purposes hereof.'
3
The 'violations' cover a wide range of 'subversive' activities designed to 'overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government * * * of the state of New Hampshire, or any political subdivision * * * by force, or violence.'2 § 588:1.
4
Appellant was willing to answer questions concerning his relationship with and knowledge of Communist activities since 1957, and in fact he did answer them.3 But he refused to answer a series of questions put him concerning earlier periods.4 His refusal, not being based on the Fifth Amendment, raised important questions under the First Amendment, made applicable to the States by the Fourteenth Amendment. He was committed to jail for a period of one year or until he purged himself of contempt. That judgment was affirmed by the New Hampshire Supreme Court. 106 N.H. 262, 209 A.2d 712. The case is here on appeal. 382 U.S. 877, 86 S.Ct. 162, 15 L.Ed.2d 118.
5
The substantiality of appellant's First Amendment claim can best be seen by considering what he was asked to do. Appellant had already testified that he had not been involved with the Communist Party since 1957 and that he had no knowledge of Communist activities during that period. The Attorney General further sought to have him disclose information relating to his political associations of an earlier day, the meetings he attended, and the views expressed and ideas advocated at any such gatherings.5 Indeed, the Attorney General here relied entirely upon a 1955 Report on Subversive Activities in New Hampshire to justify renewed investigation of appellant. The Report connects appellant with the Communist Party only until 1953, over 10 years prior to the investigation giving rise to the present contempt.
6
On the basis of our prior cases, appellant had every reason to anticipate that the details of his political associations to which he might testify would be reported in a pamphlet purporting to describe the nature of subversion in New Hampshire. (See Uphaus v. Wyman, 360 U.S. 72, 88—95, 79 S.Ct. 1040, 1050—1054, 3 L.Ed.2d 1090, Brennan, J., dissenting.) Admittedly, 'exposure—in the sense of disclosure—is an inescapable incident of an investigation into the presence of subversive persons within a State.' Uphaus v. Wyman, supra, 360 U.S. at 81, 79 S.Ct. at 1046. But whatever justification may have supported such exposure in Uphaus is absent here; the staleness of both the basis for the investigation and its subject matter makes indefensible such exposure of one's associational and political past—exposure which is objectionable and damaging in the extreme to one whose associations and political views do not command majority approval.6
7
'The First Amendment may be invoked against infringement of the protected freedoms by law or by lawmaking.' Watkins v. United States, 354 U.S. 178, 197, 77 S.Ct. 1173, 1184, 1 L.Ed.2d 1273. Investigation is a part of lawmaking and the First Amendment, as well as the Fifth, stands as a barrier to state intrusion of privacy. No attack is made on the truthfulness of the questions answered by appellant stating that he does not serve in a subversive role and lacks knowledge of any current subversion. There is no showing of 'overriding and compelling state interest' (Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 546, 83 S.Ct. 889, 893, 9 L.Ed.2d 929) that would warrant intrusion into the realm of political and associational privacy protected by the First Amendment. The information being sought was historical, not current. Lawmaking at the investigatory stage may properly probe historic events for any light that may be thrown on present conditions and problems. But the First Amendment prevents use of the power to investigate enforced by the contempt power to probe at will and without relation to existing need. Watkins v. United States, supra, 354 U.S. at 197—200, 77 S.Ct. at 1184—1186. The present record is devoid of any evidence that there is any Communist movement in New Hampshire. The 1955 Report deals primarily with 'world-wide communism' and the Federal Government. There is no showing whatsoever of present danger of sedition against the State itself, the only area to which the authority of the State extends.7 There is thus absent that 'nexus' between appellant and subversive activities in New Hampshire which the Court found to exist in Uphaus v. Wyman, supra, 360 U.S. at 79, 79 S.Ct. at 1045. New Hampshire's interest on this record is too remote and conjectural to override the guarantee of the First Amendment that a person can speak or not, as he chooses, free of all governmental compulsion.
8
Reversed.
9
Mr. Justice HARLAN, whom Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.
10
The Court appears to hold that there is on the record so limited a legislative interest and so little relation between it and the information sought from appellant that the Constitution shields him from having to answer the questions put to him.* New Hampshire in my view should be free to investigate the existence or nonexistence of Communist Party subversion, or any other legitimate subject of concern to the State without first being asked to produce evidence of the very type to be sought in the course of the inquiry. Then, given that the subject of investigation in this case is a permissible one, the appellant seems to me a witness who could properly be called to testify about it; I cannot say as a constitutional matter that inquiry into the current operations of the local Communist Party could not be advanced by knowledge of its operations a decade ago. Believing that '(o)ur function * * * is purely one of constitutional adjudication' and 'not to pass judgment upon the general wisdom or efficacy' of the investigating activities under scrutiny, Barenblatt v. United States, 360 U.S. 109, 125, 79 S.Ct. 1081, 1092, 3 L.Ed.2d 1115, I would affirm the judgment of the Supreme Court of New Hampshire.
1
DeGregory v. Wyman, 360 U.S. 717, 79 S.Ct. 1454, 3 L.Ed.2d 1540; DeGregory v. Attorney General, 368 U.S. 19, 82 S.Ct. 137, 7 L.Ed.2d 86. After remand of the latter case appellant purged himself of contempt by answering in the negative the question 'Are you presently a member of the Communist Party?' Subsequently, new hearings were held and it is out of them that the present case arises.
2
Although the Act purports to extend its protection to the Federal Government as well, that field has been pre-empted. See Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640.
3
'I am not now a member of the Communist Party and have not been at any time since this authority under which I was subject has been on the statute books; that I have no knowledge of any communistic activities in New Hampshire during this period, or any violations of law during this period of six and one-half years. In fact, I have not even been aware of the existence of any Communist Party in the State of New Hampshire at any time that this authority has been on the statute books.'
4
'Have you ever been a member of the Communist Party?
'When did you join the Communist Party?
'Were you a paid member of the Communist Party?
'Were you an officer of the Communist Party?
'Did you ever have access to or control of membership or financial records of the Communist Party in New Hampshire?
'Did you attend Communist Party meetings in New Hampshire?
'To what extent did Communist Party District I in Boston, Massachusetts, have control over the party's activities in New Hampshire?
'Did you ever attend any Communist Party meetings in New Hampshire wherein any person advocated to * * * overthrow, destroy or alter the Government of the State of New Hampshire, by force or violence?
'Did you ever attend any Communist Party meetings in New Hampshire where any person advocated, abetted, advised or taught by any means the commission of an act to constitute a clear and present danger to the security of this state?
'Did you or any person known to you destroy any books, records or files, or secrete any funds in this state belonging to or owned by the Communist Party?
'Did you at any time participate or assist in the formation of or contribute to the support of the Communist Party in New Hampshire?'
5
Prosecution for these activities was apparently barred by the six-year statute of limitations, N.H.Rev.Stat.Ann. § 603:1, long before the investigation in 1964.
6
See Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 543—544, 83 S.Ct. 889, 892—893; Bates v. City of Little Rock, 361 U.S. 516, 523—524, 80 S.Ct. 412, 416—417, 4 L.Ed.2d 480; NAACP v. State of Alabama ex rel. Patterson, 357 U.S. 449, 462—463, 78 S.Ct. 1163, 1171—1172, 2 L.Ed.2d 1488; Cf. Shelton v. Tucker, 364 U.S. 479, 485—487, 81 S.Ct. 247, 250—252, 5 L.Ed.2d 231; Talley v. State of California, 362 U.S. 60, 64—65, 80 S.Ct. 536, 538—539, 4 L.Ed.2d 559.
7
Commonwealth of Pennsylvania v. Nelson, supra, n. 2.
*
No plea of a privilege against self-incrimination was interposed by the witness.
| 23
|
384 U.S. 1
86 S.Ct. 1245
16 L.Ed.2d 314
James BROOKHART, Petitioner,v.Martin A. JANIS, Director of Ohio Department of Hygiene and Correction.
No. 657.
Argued March 21, 22, 1966.
Decided April 18, 1966.
Gerald A. Messerman, Columbus, Ohio, for petitioner.
Leo J. Conway, Columbus, Ohio, for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
The petitioner, James Brookhart, while serving the first of three consecutive sentences of from one to 20 years imposed by an Ohio Court of Common Pleas upon convictions of forgery and uttering forged instruments,1 brought this action for habeas corpus in the Supreme Court of Ohio. There is no question raised about that court's jurisdiction. Petitioner charged and contends here that all his convictions was constitutionally invalid because obtained in a trial that denied him his federally guaranteed constitutional right to confront the witnesses against him (a) by permitting the State to introduce against him an out-of-court alleged confession of a co-defendant, Mitchell,2 and (b) by denying him the right to cross-examine any of the State's witnesses who testified against him.3 Master Commissioners appointed by the State Supreme Court recommended that habeas corpus be denied. They found that 'petitioner although he did not plead guilty agreed that all the state had to prove was a prima facie case, that he would not contest it and that there would be no cross-examination of witnesses.' This finding was not based on oral testimony but was based exclusively on an examination of the transcript of the proceedings in the trial court in which petitioner was convicted. The State Supreme Court accepted its Commissioners' view of waiver, stating that the transcript of the trial showed that:
2
'In open court, while represented by counsel, petitioner agreed that, although he would not plead guilty, he would not contest the state's case or cross-examine its witnesses but would require only that the state prove each of the essential elements of the crime.' 2 Ohio St.2d 36, 40, 205 N.E.2d 911, 914.
3
Upon this basis the State Supreme Court rejected petitioner's constitutional contentions and ordered him remanded to custody. 2 Ohio St.2d 36, 205 N.E.2d 911. We granted certiorari to determine whether Ohio denied petitioner's constitutional right to be confronted with and to cross-examine the witnesses against him. Brookhart v. State of Ohio, 382 U.S. 810, 86 S.Ct. 104, 15 L.Ed.2d 59.
In this Court respondent admits that:
4
'(I)f there was here a denial of cross-examination without waiver, it would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.'
5
This concession is properly made. The Sixth Amendment provides that: 'In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *.' And in Pointer v. State of Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923, we held that the confrontation guarantee of the Sixth Amendment including the right of cross-examination '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. 1, at 10, 84 S.Ct. (1489) at 1495 (12 L.Ed.2d 653).' See also Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934. It follows that unless petitioner did actually waive his right to be confronted with and to cross-examine these witnesses, his federally guaranteed constitutional rights have been denied in two ways. In the first place he was denied the right to cross-examine at all any witnesses who testified against him. In the second place there was introduced as evidence against him an alleged confession, made out of court by one of his co-defendants, Mitchell, who did not testify in court, and petitioner was therefore denied any opportunity whatever to confront and cross-examine the witness who made this very damaging statement. We therefore pass on to the question of waiver.
6
The question of a waiver of a federally guaranteed constitutional right is, of course, a federal question controlled by federal law. There is a presumption against the waiver of constitutional rights, see, e.g., Glasser v. United States, 315 U.S. 60, 70—71, 62 S.Ct. 457, 464—465, 86 L.Ed. 680, and for a waiver to be effective it must be clearly established that there was 'an intentional relinquishment or abandonment of a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461.
7
In deciding the federal question of waiver raised here we must, of course look to the facts which allegedly support the waiver.4 Upon an examination of the facts shown in this record, we are completely unable to agree with the Supreme Court of Ohio that the petitioner intelligently and knowingly waived his right to cross-examine the witnesses whose testimony was used to convict him. The trial record shows the following facts: Petitioner was arraigned January 29, 1962, without a lawyer, and pleaded not guilty to all charges against him. Two days later the court appointed counsel to represent him. Not able to make bond, he remained in jail until March 23, 1962, at which time he was brought before the judge for trial. There petitioner's appointed counsel told the judge that his client had signed waivers of trial by jury and wanted to be tried by the court. The judge in order to verify the waivers showed petitioner the two written waivers of trial by jury bearing his signature and asked him if the signature was his. Petitioner said it was. The following colloquy among the judge, petitioner, and his counsel then took place in open court:
8
'Mr. Ergazos (petitioner's lawyer): That(')s correct, Your Honor.
9
'The Court: Anything further?
10
'Mr. Kandel: Nothing further.
11
'Mr. Ergazos: The only thing is, Your Honor, this matter is before the court on a prima facie case.
12
'The Court: There being no * * * going to be no cross-examination of the witnesses, so the court will know and the State can't be taken by surprise, the court doesn't want to be fooled and have your client change his mind half way through the trial and really contest it, the State has a contest, we want to know in fairness to them so they can put on complete proof.
13
'Mr. Ergazos: I might say this, Your Honor, if there is any testimony adduced here this morning which leaves any question as to this defendant in connection with this crime I would like to reserve the right to cross-examine at that time.
14
'The Court: That is raising another * * * that is putting the State on the spot and the court on the spot, I won't find him guilty if the evidence is substantial.
15
'Mr. Ergazos: We have a jury question in the court, undoubtedly there will be * * *
16
'The Court: Ordinarily in a prima facie case * * * the prima facie case is where the defendant, not technically or legally, in effect admits his guilt and wants the State to prove it.
17
'Mr. Ergazos: That is correct.
18
'The Court: And the court knowing that and the Prosecutor knowing that, instead of having a half a dozen witness on one point they only have one because they understand there will be no contest.
19
'A (Brookhart) I would like to point out in no way am I pleading guilty to this charge.
20
'The Court: If you want to stand trial we will give you a jury trial.
21
'A I have been incarcerated now for the last eighteen months in the county jail.
22
'The Court: You don't get credit for that.
23
'A For over two months my nerves have been * * * I couldn't stand it out there any longer, I would like to be tried by this court.
24
'The Court: Make up your mind whether you require a prima facie case or a complete trial of it.
25
'Mr. Ergazos: Prima facie, Your Honor, is all we are interested in.
26
'The Court: All right.' (Emphasis supplied.)
27
From the foregoing it seems clear that petitioner's counsel agreed to a prima facie trial. By agreeing to this truncated kind of trial—if trial it could be called— we can assume that the lawyer knowingly agreed that the State need make only a prima facie showing of guilt and that he would neither offer evidence on petitioner's behalf nor cross-examine any of the State's witnesses. The record shows, however, that petitioner himself did not intelligently and knowingly agree to be tried in a proceeding which was the equivalent of a guilty plea and in which he would not have the right to be confronted with and cross-examine the witnesses against him. His desire not to agree to such a trial is shown by the fact that immediately after the judge accurately stated that in a prima facie case the defendant 'in effect admits his guilt,' Brookhart personally interjected his statement that 'I would like to point out in no way am I pleading guilty to this charge.' Although he expressly waived his right to a jury trial, he never, at any time, either explicitly or implicitly, pleaded guilty. His emphatic statement to the judge that 'in no way am I pleading guilty' negatives any purpose on his part to agree to have his case tried on the basis of the State's proving a prima facie case which both the trial court and the State Supreme Court held was the practical equivalent of a plea of guilty. Our question therefore narrows down to whether counsel has power to enter a plea which is inconsistent with his client's expressed desire and thereby waive his client's constitutional right to plead not guilty and have a trial in which he can confront and cross-examine the witnesses against him. We hold that the constitutional rights of a defendant cannot be waived by his counsel under such circumstances. It is true, as stated in Henry v. State of Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 569, 13 L.Ed.2d 408, that counsel may, under some conditions, where the circumstances are not 'exceptional, preclude the accused from asserting constitutional claims * * *.' Nothing in Henry, however, can possibly support a contention that counsel for defendant can override his client's desire expressed in open court to plead not guilty5 and enter in the name of his client another plea—whatever the label—which would shut off the defendant's constitutional right to confront and cross-examine the witnesses against him which he would have an opportunity to do under a plea of not guilty. Since we hold that petitioner neither personally waived his right nor acquiesced in his lawyer's attempted waiver, the judgment of the Supreme Court of Ohio must be and is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion.
28
It is so ordered.
29
Reversed and remanded.
30
Separate opinion of Mr. Justice HARLAN.
31
I do not find the issue in this case as straightforward as does the Court. If the record were susceptible only of the reading given it by the Court, I would concur in the judgment. However, for me this case presents problems of two sorts.
32
First, the precise nature of the 'rights' that were allegedly 'waived' is not wholly clear. One view, adopted by the Court, is that petitioner's lawyer in effect entered a conditional plea of guilty for the defendant. Another interpretation, which is certainly arguable, would find the agreement between petitioner's counsel and the trial court to involve no more than a matter of trial procedure. I believe a lawyer may properly make a tactical determination of how to run a trial even in the face of his client's incomprehension or even explicit disapproval. The decision, for example, whether or not to cross-examine a specific witness is, I think, very clearly one for counsel alone. Although it can be contended that the waiver here was nothing more than a tactical choice of this nature, I believe for federal constitutional purposes the procedure agreed to in this instance involved so significant a surrender of the rights normally incident to a trial that it amounted almost to a plea of guilty or nolo contendere. And I do not believe that under the Due Process Clause of the Fourteenth Amendment such a plea may be entered by counsel over his client's protest.
33
Second, given the need for petitioner's approval of the entry of such a plea, the further question arises whether petitioner did in fact agree to be tried in a 'prima facie' trial without the opportunity to cross-examine witnesses. The Supreme Court of Ohio, on the basis of an examination of the record, found that petitioner 'agreed that all the state had to prove was a prima facie case, that he would not contest it, and that there would be no cross-examination of witnesses.' Brookhart v. Haskins, 2 Ohio St.2d 36, 38, 205 N.E.2d 911, 913. This Court, after an independent examination of the relevant portion of the same record, reprinted, ante, pp. 5-6, finds that petitioner 'did not intelligently and knowingly agree to be tried in a proceeding which was the equivalent of a guilty plea * * *.' Ante, p. 7.
34
The decisive fact is of course the state of petitioner's mind his understanding and his intention—when his counsel stated to the trial court: 'Prima facie, Your Honor, is all we are interested in.' My reading of the record leaves me in substantial doubt as to what petitioner's actual understanding was at the end of the pertinent courtroom colloquy, a doubt that is enhanced by the general unfamiliarity that seems to exist with this Ohio 'prima facie' practice.* I cannot see how the question can be satisfactorily resolved solely on the existing record. I would therefore vacate this judgment and remand the case for a hearing under appropriate state procedures to determine whether petitioner did in fact knowingly and freely choose to have his guilt determined in this type of trial. Failing the availability of such proceedings in the state courts, the avenue of federal habeas corpus would then be open to petitioner for determination of that issue.
1
Petitioner was also convicted in the same trial of breaking and entering and grand larceny. His sentences on these convictions were made to run concurrently with his sentences for forgery and uttering forged instruments.
2
Mitchell pleaded guilty after being indicted with petitioner, was sentenced to an Ohio state reformatory, and although in the reformatory at the time of petitioner's trial, was not called to testify in person.
3
The petition also charged that Brookhart had not been given adequate notice of the charges upon which he was tried because the indictment charging him with forgery and uttering forged instruments was amended at trial. And in this Court petitioner attacks his convictions on several other constitutional grounds. We find it unnecessary to decide any of the additional contentions set out in this note.
4
When constitutional rights turn on the resolution of a factual dispute we are duty bound to make an independent examination of the evidence in the record. See, e.g., Edwards v. State of South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697; Blackburn v. State of Alabama, 361 U.S. 199, 205, n. 5, 80 S.Ct. 274, 279, 4 L.Ed.2d 242.
5
Compare Rideau v. State of Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663.
*
The Supreme Court of Ohio characterized the procedure as 'unusual,' 2 Ohio St.2d, at 39, 205 N.E.2d, at 914. At oral argument, the Assistant Attorney General of Ohio noted that he had been unaware of such a procedure, and that the practice could not be found in any statute or rules of court. The State explains the procedure as follows: 'There is no statutory plea of nolo contendere in Ohio in felony cases, therefore, when one is charged with a crime which he knows that he cannot successfully defend, but a plea of guilty will subject him to a penalty in a civil suit arising out of the same factual situation, he is without recourse to a plea of nolo contendere as is permitted in federal courts and certain other state courts. To circumvent this difficulty some Ohio courts have allowed, as was done here, the accused to enter a plea of not guilty and by arrangement require the prosecution to prove only a prima facie case.' Brief, at 44—45, note 41.
| 01
|
384 U.S. 28
86 S.Ct. 1250
16 L.Ed.2d 335
Margaret L. HOLT et al., Petitioners,v.ALLEGHANY CORPORATION et al. Margaret L. HOLT et al., Petitioners, v. Allan P. KIRBY et al.
Nos. 131, 132.
Supreme Court of the United States
Argued March 21, 1966.
April 18, 1966
See 384 U.S. 967, 86 S.Ct. 1583.
Stuart N. Updike, New York City, for petitioners.
Mark F. Hughes and Walter R. Mansfield, New York City, for respondents.
PER CURIAM.
1
The writs of certiorari are dismissed as improvidently granted.
2
Mr. Justice BLACK dissents from dismissal of the writs and would reverse the judgments of the Court of Appeals and district courts substantially for the reasons stated in Judge Friendly's dissent in the Court of Appeals, 333 F.2d 327, 338.
3
Mr. Justice HARLAN and Mr. Justice WHITE dissent from the dismissal of the writs, believing that these cases having been taken for review should be adjudicated on the merits.
4
Mr. Justice DOUGLAS and Mr. Justice FORTAS took no part in the consideration or decision of these cases.
| 89
|
384 U.S. 24
86 S.Ct. 1250
16 L.Ed.2d 330
STATE OF LOUISIANA, Plaintiff,v.STATE OF MISSISSIPPI et al.
No. 14, Original.
Argued Nov. 16, 1965.
Decided April 18, 1966.
Rehearing Denied May 23, 1966.
1
See 384 U.S. 958, 86 S.Ct. 1567.
2
John L. Madden, Baton Rouge, La., and Edward M. Carmouche, Lake Charles, La., for plaintiff.
3
Martin R. McLendon, Jackson, Miss., and Landman Teller, Vicksburg, Miss., for defendants.
4
PER CURIAM AND DECREE.
5
Upon consideration of the Report filed June 7, 1965, by Senior Judge Marvin Jones, Special Master, and the exceptions thereto, it is now adjudged, ordered, and decreed as follows:
6
(1) All exceptions are overruled and the Report is in all things confirmed.
7
(2) The true boundary between the States of Louisiana and Mississippi in the area of the Mississippi River known as Deadman's Bend on the several dates mentioned is determined to be as follows:
8
At all times the live thalweg has been the true boundary.
9
On October 3, 1952, the live thalweg was a gradually curving line running southward from the foot of Glasscock Cutoff, and east of the future location of Louisiana State Well No. 1 by 230 feet, to the end of Deadman's Bend at range 334.5 AHP. This line is described below by latitude and longitude and is drawn on Special Master Exhibit No. 1.
10
On April 10, 1964, the live thalweg was a gradually curving line running southward from the foot of Glasscock Cutoff, and west of Louisiana State Well No. 1 by 850 feet, to the end of Deadman's Bend at range 334.5 AHP. This line is described below by latitude and longitude and is drawn on Special Master Exhibit No. 1.
11
At all times between October 3, 1952, and April 10, 1964, the live thalweg has moved at a constant rate. The boundary location for any intervening period at any point in Deadman's Bend (from the foot of Glasscock Cutoff to range 334.5 AHP) is to be determined mathematically by calculating the constant rate of change for that particular place in Deadman's Bend, using the 1952 and 1964 thalwegs described heretofore and the appropriate time differentials.
12
At the latitude of Louisiana State Well No. 1 the location of the boundary was as follows from October 3, 1952, to April 10, 1964:
13
October 3, 1952..........230 feet east of well
14
April 27, 1954...........80 feet east of well
15
February 27, 1955........Directly above the well
16
April 10, 1956...........102 feet west of well
17
April 10, 1957...........195 feet west of well
18
April 10, 1958...........289 feet west of well
19
April 10, 1959...........382 feet west of well
20
April 10, 1960...........476 feet west of well
21
April 10, 1961...........569 feet west of well
22
April 10, 1962...........663 feet west of well
23
April 10, 1963...........756 feet west of well
24
April 10, 1964...........850 feet west of well
25
The Louisiana State Well No. 1 became located inside the boundary of Mississippi on February 28, 1955.
26
The description of the October 3, 1952, live thalweg by geodetic positions (North American Datum) is as follows:
27
Beginning at the foot of Glasscock Cutoff at a point on range 338.3 AHP, which is Lat. 31 19 07.0 —Long. 91 30 33.5 .
28
Thence running southward through the following points:
Latitude Longitude
29
31x18'57.5" 91x30'37.0"
30
31x18'47.5" 91x30'39.0"
31
31x18'37.0" 91x30'40.0"
32
31x18'27.0" 91x30'39.5"
33
31x18'17.0" 91x30'39.0"
34
31x18'07.0" 91x30'38.0"
35
31x17'57.5" 91x30'38.0"
36
31x17'47.0" 91x30'38.0"
37
31x17'37.0" 91x30'37.0"
38
31x17'27.0" 91x30'36.5"
39
31x17'17.0" 91x30'36.0"
40
31x17'07.0" 91x30'35.0"
41
31x16'57.5" 91x30'33.5"
42
31x16'47.0" 91x30'32.5"
43
31x16'42.5" 91x30'34.0"
44
31x16'38.0" 91x30'37.0"
45
31x16'30.0" 91x30'43.0"
46
31x16'22.5" 91x30'51.0"
47
31x16'17.0" 91x31'00.0"
48
31x16'12.0" 91x31'10.0"
49
31x16'08.0" 91x31'21.0"
50
31x16'05.5" 91x31'32.0"
51
31x16'03.5" 91x31'42.0"
52
The description of the April 10, 1964, live thalweg by geodetic positions (North American Datum) is as follows:
53
Beginning at the foot of Glasscock Cutoff at a point on range 338.3 AHP, which is Lat. 31 19 07.0 —Long. 91 30 38.5 .
54
Thence running southward through the following points:
Latitude Longitude
55
31x18'57.5" 91x30'40.5"
56
31x18'48.0" 91x30'42.5"
57
31x18'38.0" 91x30'44.0"
58
31x18'28.0" 91x30'46.0"
59
31x18'18.5" 91x30'47.0"
60
31x18'08.5" 91x30'48.5"
61
31x17'59.0" 91x30'50.0"
62
31x17'49.0" 91x30'52.0"
63
31x17'39.0" 91x30'52.5"
64
31x17'29.5" 91x30'52.5"
65
31x17'20.0" 91x30'52.5"
66
31x17'10.0" 91x30'52.0"
67
31x17'00.5" 91x30'52.0"
68
31x16'51.0" 91x30'52.5"
69
31x16'41.0" 91x30'53.0"
70
31x16'36.0" 91x30'55.0"
71
31x16'32.0" 91x30'58.0"
72
31x16'24.0" 91x31'04.5"
73
31x16'16.0" 91x31'11.5"
74
31x16'09.0" 91x31'18.5"
75
31x16'03.0" 91x31'28.0"
76
31x15'59.0" 91x31'38.0"
77
(3) As it appears that the Special Master has completed his work, he is hereby discharged with the thanks of the Court.
78
(4) The costs of this suit are to be equally divided between the two States.
| 1011
|
384 U.S. 11
86 S.Ct. 1238
16 L.Ed.2d 321
Barbara ELFBRANDT, Petitioner,v.Imogene R. RUSSELL et al.
No. 656.
Argued Feb. 24, 1966.
Decided April 18, 1966.
W. Edward Morgan, Tucson, Ariz., for petitioner.
Philip M. Haggerty, Phoenix, Ariz., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This case, which involves questions concerning the constitutionality of an Arizona Act requiring an oath from state employees, has been here before. We vacated the judgment of the Arizona Supreme Court which had sustained the oath (94 Ariz. 1, 381 P.2d 554) and remanded the cause for reconsideration in light of Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377. See 378 U.S. 127, 84 S.Ct. 1658, 12 L.Ed.2d 744. On reconsideration the Supreme Court of Arizona reinstated the original judgment. 97 Ariz. 140, 397 P.2d 944. The case is here on certiorari. 382 U.S. 810, 86 S.Ct. 116, 15 L.Ed.2d 59.
2
The oath reads in conventional fashion as follows:1
3
'I, (type or print name) do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the state of Arizona; that I will bear true faith and allegiance to the same, and defend them against all enemies whatever, and that I will faithfully and impartially discharge the duties of the office of (name of office) according to the best of my ability, so help he God (or so I do affirm).' The Legislature put a gloss on the oath2 by subjecting to a prosecution for perjury and for discharge from public office anyone who took the oath and who 'knowingly and wilfully becomes or remains a member of the communist party of the United States or its successors or any of its subordinate organizations' or 'any other organization' having for 'one of its purposes' the overthrow of the government of Arizona or any of its political subdivisions where the employee had knowledge of the unlawful purpose. Petitioner, a teacher and a Quaker, decided she could not in good conscience take the oath, not knowing what it meant and not having any chance to get a hearing at which its precise scope and meaning could be determined. This suit for declaratory relief followed. On our remand the Arizona Supreme Court said that the gloss on the oath is 'not afflicted' with the many uncertainties found potentially punishable in Baggett v. Bullitt, supra.
4
'Nor does it reach endorsements or support for Communist candidates for office nor a lawyer who represents the Communist Party, or its members, nor journalists who defend the Communist Party, its rights, or its members. Such conduct is neither an act nor in aid of an act attempting to overthrow the government by force and violence.
5
'It is our conclusion that the portions of the Arizona act here considered do not forbid or require conduct in terms so vague that men of common intelligence must necessarily guess at the meaning and differ as to their application.' 97 Ariz., at 147, 397 P.2d, at 948.
6
Mr. Justice Bernstein, in dissent, responded that the majority had failed to consider the so-called 'membership clause' of the oath and accompanying statutory gloss:
7
'Let us consider a scientist, a teacher in one of our universities. He could not know whether membership is prohibited in an international scientific organization which includes members from neutralist nations and Communist bloc nations—the latter admittedly dedicated to the overthrow of our government and which control the organization—even though access to the scientific information of the organization is available only to its members.
8
* * *
9
'Though all might agree that the principal purpose of such an organization is scientific, the statute makes his membership a crime if any subordinate purpose is the overthrow of the state government. The vice of vagueness here is that the scientist cannot know whether membership in the organization will result in prosecution for a violation of § 38—231, subd. E or in honors from his university for the encyclopedic knowledge acquired in his field in part through his membership.' Id., at 147—148, 397 P.2d, at 949.
10
We recognized in Scales v. United States, 367 U.S. 203, 229, 81 S.Ct. 1469, 1486, 6 L.Ed.2d 782, that 'quasi-political parties or other groups * * * may embrace both legal and illegal aims.' We noted that a 'blanket prohibition of association with a group having both legal and illegal aims' would pose 'a real danger that legitimate political expression or association would be impaired.' The statute with which we dealt in Scales the so-called 'membership clause' of the Smith Act (18 U.S.C. § 2385), was found not to suffer from this constitutional infirmity because, as the Court construed it, the statute reached only 'active' membership (id., at 222, 81 S.Ct. at 1482) with the 'specific intent' of assisting in achieving the unlawful ends of the organization (id., at 229—230, 81 S.Ct. at 1522). The importance of this limiting construction from a constitutional stand-point was emphasized in Noto v. United States, 367 U.S. 290, 299—300, 81 S.Ct. 1517, 6 L.Ed.2d 836, decided the same day:
11
'(I)t should also be said that this element of the membership crime (the defendant's 'personal criminal purpose to bring about the overthrow of the Government by force and violence'), like its others, must be judged strictissimi juris, for otherwise there is a danger that one in sympathy with the legitimate aims of such an organization, but not specifically intending to accomplish them by resort to violence, might be punished for his adherence to lawful and constitutionally protected purposes, because of other and unprotected purposes which he does not necessarily share.'3
12
Any lingering doubt that proscription of mere knowing membership, without any showing of 'specific intent,' would run afoul of the Constitution was set at rest by our decision in Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992. We dealt there with a statute which provided that no member of a Communist organization ordered by the Subversive Activities Control Board to register shall apply for or use a passport. We concluded that the statute would not permit a narrow reading of the sort we gave § 2385 in Scales. See 378 U.S., at 511, n. 9, 84 S.Ct. at 1666. The statute, as we read it, covered membership which was not accompanied by a specific intent to further the unlawful aims of the organization, and we held it unconstitutional.
13
The oath and accompanying statutory gloss challenged here suffer from an identical constitutional infirmity. One who subscribes to this Arizona oath and who is, or thereafter becomes, a knowing member of an organization which has as 'one of its purposes' the violent overthrow of the government, is subject to immediate discharge and criminal penalties. Nothing in the oath, the statutory gloss, or the construction of the oath and statutes given by the Arizona Supreme Court, purports to exclude association by one who does not subscribe to the organization's unlawful ends. Here as in Baggett v. Bullitt, supra, the 'hazard of being prosecuted for knowing but guiltless behavior' (id., 377 U.S. at 373, 84 S.Ct. at 1323) is a reality. People often label as 'communist' ideas which they oppose; and they often make up our juries. '(P)rosecutors too are human.' Cramp v. Board of Public Instruction, 368 U.S. 278, 287, 82 S.Ct. 275, 281, 7 L.Ed.2d 285. Would a teacher be safe and secure in going to a Pugwash Conference?4 Would it be legal to join a seminar group predominantly Communist and therefore subject to control by those who are said to believe in the overthrow of the Government by force and violence? Juries might convict though the teacher did not subscribe to the wrongful aims of the organization. And there is apparently no machinery provided for getting clearance in advance.5
14
Those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees. Laws such as this which are not restricted in scope to those who join with the 'specific intent' to further illegal action impose, in effect, a conclusive presumption that the member shares the unlawful aims of the organization. See Aptheker v. Secretary of State, supra, 378 U.S. at 511, 84 S.Ct. at 1666. The unconstitutionality of this Act follows a fortiori from Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460, where we held that a State may not even place on an applicant for a tax exemption the burden of proving that he has not engaged in criminal advocacy.
15
This Act threatens the cherished freedom of association protected by the First Amendment, made applicable to the States through the Fourteenth Amendment. Baggett v. Bullitt, supra; Cramp v. Board of Public Instruction, supra. Cf. N.A.A.C.P. v. State of Alabama ex rel. Patterson, 357 U.S. 449, 460 et seq., 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488; Gibson v. Florida Legislative Committee, 372 U.S. 539, 543—546, 83 S.Ct. 889, 893, 9 L.Ed.2d 929. And, as a committee of the Arizona Legislature which urged adoption of this law itself recognized, public employees of character and integrity may well forgo their calling rather than risk prosecution for perjury or compromise their commitment to intellectual and political freedom:
16
'The communist trained in fraud and perjury has no qualms in taking any oath; the loyal citizen, conscious of history's oppressions, may well wonder whether the medieval rack and torture wheel are next for the one who declines to take an involved negative oath as evidence that he is a True Believer.'6
17
A statute touching those protected rights must be 'narrowly drawn to define and punish specific conduct at constituting a clear and present danger to a substantial interest of the State.' Cantwell v. State of Connecticut, 310 U.S. 296, 311, 60 S.Ct. 900, 906, 84 L.Ed. 1213. Legitimate legislative goals 'cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.' Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231. And see State of Louisiana ex rel. Gremillion v. N.A.A.C.P., 366 U.S. 293, 296—297, 81 S.Ct. 1333, 1335, 6 L.Ed.2d 301. As we said in N.A.A.C.P. v. Button, 371 U.S. 415, 432—433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405:
18
'The objectionable quality of * * * overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. * * * These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. * * *'
19
A law which applies to membership without the 'specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of 'guilt by association' which has no place here. See Schneiderman v. United States, 320 U.S. 118, 136, 63 S.Ct. 1333, 1342, 87 L.Ed. 1796; Schware v. Board of Bar Examiners of State of N.M., 353 U.S. 232, 246, 77 S.Ct. 752, 760, 1 L.Ed.2d 796. Such a law cannot stand.
20
Reversed.
21
Mr. Justice WHITE, with whom Mr. Justice CLARK, Mr. Justice HARLAN and Mr. Justice STEWART concur, dissenting.
22
According to unequivocal prior holdings of this Court, a State is entitled to condition public employment upon its employees abstaining from knowing membership in the Communist Party and other organizations advocating the violent overthrow of the government which employs them; the State is constitutionally authorized to inquire into such affiliations and it may discharge those who refuse to affirm or deny them. Gerende v. Board of Supervisors of Elections, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745; Garner v. Board of Public Works, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; Adler v. Board of Education, 432 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517; Beilan v. Board of Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414; Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423; Nelson v. County of Los Angeles, 362 U.S. 1, 80 S.Ct. 527, 4 L.Ed.2d 494; see also Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216; Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692. The Court does not mention or purport to overrule these cases; nor does it expressly hold that a State must retain, even in its most sensitive positions, those who lend such support as knowing membership entails to those organizations, such as the Communist Party, whose purposes include the violent destruction of democratic government.
23
Under existing constitutional law, then Arizona is free to require its teachers to refrain from knowing membership in the designated organizations and to bar from employment all knowing members as well as those who refuse to establish their qualifications to teach by executing the oath prescribed by the statute. Arizona need not retain those employees on the governor's staff, in the Phoenix police department or in its schools who insist on holding membership in and lending their name and influence to those organizations aiming at violent overthrow. Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517.
24
It would seem, therefore, that the Court's judgment is aimed at the criminal provisions of the Arizona law which expose an employee to a perjury prosecution if he swears falsely about membership when he signs the oath or if he later becomes a knowing member while remaining in public employment. But the State is entitled to condition employment on the absence of knowing membership; and if an employee obtains employment by falsifying his present qualifications, there is no sound constitutional reason for denying the State the power to treat such false swearing as perjury. Alire v. United States, 10 Cir., 313 F.2d 31; Ogden v. United States, 9 Cir., 303 F.2d 724.1 By the same token, since knowing membership in specified organizations is a valid disqualification, Arizona cannot sensibly be forbidden to make it a crime for a person, while a state employee, to join an organization knowing of its dedication to the forceful overthrow of his employer and knowing that membership disqualifies him for state employment. The crime provided by the Arizona law is not just the act of becoming a member of an organization but it is that membership plus concurrent public employment. If a State may disqualify for knowing membership and impose criminal penalties for falsifying employment applications, it is likewise within its powers to move criminally against the employee who knowingly engages in disqualifying acts during his employment. If a government may remove from office, 5 U.S.C. § 118i (1964 ed.), United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754, and criminally punish, 18 U.S.C. § 607 (1964 ed.), its employees who engage in certain political activities, it is unsound to hold that it may not, on pain of criminal penalties, prevent its employees from affiliating with the Communist Party or other organizations prepared to employ violent means to overthrow constitutional government. Our Constitution does not require this kind of protection for the secret proselyting of government employees into the Communist Party, an organization which has been found to be controlled by a foreign power and to be dedicated to the overthrow of the government by any illegal means necessary to achieve this end. Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625.2
25
There is nothing in Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782, Noto v. United States, 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836, or Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992, dictating the result reached by the Court. Scales involved the construction of the Smith Act and a holding that the membership clause did not reach members who knew of the illegal aims of the Party but lacked an active membership and an intent to further the illegal ends. Noto also involved a construction of the Smith Act, the conviction there being reversed for insufficient evidence. Aptheker struck down a provision denying passports to members of the Communist Party which applied 'whether or not one knows or believes that he is associated with an organization operating to further aims of the world Communist movement * * *. The provision therefore sweeps within its prohibition both knowing and unknowing members.' 378 U.S., at 510, 84 S.Ct. at 1666. In any event, Scales, Noto and Aptheker did not deal with the government employee who is a knowing member of the Communist Party. They did not suggest that the State or Federal Government should be prohibited from taking elementary precautions against its employees forming knowing and deliberate affiliations with those organizations who conspire to destroy the government by violent means. Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460, also relied upon by the majority, carefully preserved Gerende and Garner for reasons which I think are equally applicable to the Arizona oath and statute. In my view, therefore, the Court errs in holding that the Act is overbroad because it includes state employees who are knowing members but who may not be active and who may lack the specific intent to further the illegal aims of the Party.3
26
Even if Arizona may not take criminal action against its law enforcement officers or its teachers who become Communists knowing of the purposes of the Party, the Court's judgment overreaches itself in invalidating this Arizona statute. Whether or not Arizona may make knowing membership a crime, it need not retain the member as an employee and is entitled to insist that its employees disclaim, under oath, knowing membership in the designated organizations and to condition future employment upon future abstention from membership. It is, therefore, improper to invalidate the entire statute in this declaratory judgment action. If the imposition of criminal penalties under the present Act is invalid, the Court should so limit its holding and remand the case to the Arizona courts to determine the severability of the criminal provisions under the severability provisions of the Act itself. Arizona Communist Control Act of 1961, Ariz. Laws 1961, c. 108, § 8.
1
Ariz.Rev.Stat. § 38—231 (1965 Supp.).
2
Id., § E reads as follows:
'Any officer or employee as defined in this section having taken the form of oath or affirmation prescribed by this section, and knowingly or wilfully at the time of subscribing the oath or affirmation, or at any time thereafter during his term of office or employment, does commit or aid in the commission of any act to overthrow by force or violence the government of this state or of any of its political subdivisions, or advocates the overthrow by force or violence of the government of this state or of any of its political subdivisions, or during such term of office or employment knowingly and wilfully becomes or remains a member of the communist party of the United States or its successors or any of its subordinate organizations or any other organization having for one of its purposes the overthrow by force or violence of the government of the state of Arizona or any of its political subdivisions, and said officer or employee as defined in this section prior to becoming or remaining a member of such organization or organizations had knowledge of said unlawful purpose of said organization or organizations, shall be guilty of a felony and upon conviction thereof shall be subject to all the penalties for perjury; in addition, upon conviction under this section, the officer or employee shall be deemed discharged from said office or employment and shall not be entitled to any additional compensation or any other emoluments or benefits which may have been incident or appurtenant to said office or employment.'
3
Cf. Rowoldt v. Perfetto, 355 U.S. 115, 120, 78 S.Ct. 180, 183, 2 L.Ed.2d 140; Gastelum-Quinones v. Kennedy, 374 U.S. 469, 83 S.Ct. 1819, 10 L.Ed.2d 1013.
4
The Pugwash Conferences, A Staff Analysis, Subcommittee to Investigate the Administration of the Internal Security Act, Senate Committee on the Judiciary, Committee Print, 87th Cong., 1st Sess. (1961); Rabinowitch, Pugwash—History and Outlook, 13 Bull. Atomic Sci. 243 (1957); Topchiev, Comments on Pugwash: From the East, 14 Bull. Atomic Sci. 118 (1958); Thirring, Comments on Pugwash: From the West, id., at 121; Rabinowitch, The Stowe Conferences, 17 Bull. Atomic Sci. 382 (1961); Statement of International Pugwash Continuing Committee: Pugwash XIII, Bull. Atomic Sci. 43—45 (December 1964); Documents of Second Pugwash Conference of Nuclear Scientists (March 31—April 11, 1958).
5
Petitioner would, of course, have a hearing at a perjury trial, after the event. And one member of the Arizona Supreme Court felt that petitioner, having tenure, would be entitled to a hearing before she was discharged from her teaching position. See Elfbrandt v. Russell, 94 Ariz. 1, 17—18, 381 P.2d 554, 565 (Bernstein, C.J., concurring). But even that is not authoritatively decided by the court; indeed, another opinion states this to be a minority view, 94 Ariz., at 18, 381 P.2d at 566 (separate opinion of Jennings, J.).
6
Report of the Judiciary Committee in Support of the Committee Amendment to H.B. 115, Journal of the Senate, 1st Reg.Sess., 25th Legislature of the State of Arizona, p. 424 (1961).
1
These cases uphold the constitutionality of 18 U.S.C. § 1001 (1964), which makes it a crime to make false statements with regard to any matter within the jurisdiction of any department or agency of the United States. Many States have comparable Statutes, e.g., Cal.Govt.Code §§ 1368, 3108; Mass.Gen.Laws Ann., c. 264, §§ 14, 15; Okl.Stat.Ann., Tit. 51, §§ 36.5, 36.6.
2
See the findings of Congress, Subversive Activities Control Act of 1950, 50 U.S.C. § 781 (1964 ed.), and of the Arizona Legislature, Arizona Communist Control Act of 1961, Ariz.Laws 1961, c. 108, § 2.
3
On remand from this Court, 378 U.S. 127, 84 S.Ct. 1658, 12 L.Ed.2d 744, the Arizona Supreme Court gave the oath and statute a narrow reading that eliminated their vulnerability to the charge of being unconstitutionally vague. 97 Ariz. 140, 397 P.2d 944. See Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377. Although the majority on remand did not dwell on the membership clause, this, it seems to me, is because its meaning is clear from the face of the statute. By its own terms, unless the organization joined actually has as a purpose unlawful revolution and the employee actually knows of this purpose, he commits no crime. 'And since the constitutional vice in a vague or indefinite statute is the injustice to the accused in placing him on trial for an offense, the nature of which he is given no fair warning, the fact that punishment is restricted to acts done with knowledge that they contravene the statute makes this objection untenable.' American Communications Assn. v. Douds, 339 U.S. 382, 413, 70 S.Ct. 674, 691, 94 L.Ed. 925.
| 23
|
384 U.S. 35
86 S.Ct. 1254
16 L.Ed.2d 336
JOSEPH E. SEAGRAM & SONS, INC., et al., Appellants,v.Donald S. HOSTETTER, etc., et al.
No. 545.
Argued Feb. 23, 1966.
Decided April 19, 1966.
Rehearing Denied May 31, 1966.
See 384 U.S. 967, 86 S.Ct. 1583.
[Syllabus from pages 35-37 intentionally omitted]
Thomas F. Daly, New York City, and Jack Goodman, Albany, N.Y., for appellants.
Ruth Kessler Toch, Albany, N.Y., for appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
This appeal draws in question certain provisions of Chapter 531, 1964 Session Laws of New York, which worked substantial changes in the State's Alcoholic Beverage Control Law. The appellants are distillers, wholesalers, or importers of distilled spirits, who commenced this action in a New York court for an injunction and declaratory judgment against the appropriate state officials, upon the ground that § 9 of Chapter 531 violates the Federal Constitution in several respects.1 The trial court upheld the constitutionality of the law,2 and its judgment was affirmed by the Appellate Division3 and by the New York Court of Appeals.4 The appellants brought the case here,5 and we now affirm the judgment of the Court of Appeals.
2
Chapter 531 was enacted as the result of a sweeping redirection of New York's policy regulating the sale of liquor in the State. For more than 20 years the Alcoholic Beverage Control Law (hereinafter ABC Law) had required brand owners of alcoholic beverages or their agents to file with the State Liquor Authority monthly schedules listing the bottle and case price to be charged to wholesalers and retailers within the State. These schedules were publicly displayed, and sales were prohibited except at the listed prices.6 In 1950 the ABC Law was amended by the addition of a section which required brand owners or their agents to file price schedules listing the minimum retail price at which each brand could be sold to consumers and which prohibited retail sales at prices less than those fixed in the schedules.7 The enforcement of these mandatory minimum retail prices was entrusted to the State Liquor Authority rather than to private action, but the Authority was given no power to determine the reasonableness of the prices that were fixed.
3
In 1963, against a background of irregularities within the State Liquor Authority and extensive dissatisfaction with the operation of the ABC Law, the Governor of New York appointed a Commission to study the sale and distribution of alcoholic beverages within the State. The Commission sponsored various study papers and issued a series of reports and recommendations.8 It found unequivocally that compulsory resale price maintenance had had 'no significant effect upon the consumption of alcoholic beverages, upon temperance or upon the incidence of social problems related to alcohol.' It also found that New York liquor consumers had been the victims of serious discrimination because of the higher prices and reduced competition fostered by the mandatory minimum price maintenance provision of the law.9 The Commission therefore recommended the repeal of that provision,10 and the ultimate response of the legislature was the enactment of Chapter 531.
4
The legislature did not stop, however, with repeal of the mandatory resale price maintenance provision of the law.11 In § 9 of Chapter 531 it imposed the additional requirement that the monthly price schedules for sales to wholesalers and retailers filed with the State Liquor Authority must be accompanied by an affirmation that 'the bottle and case price of liquor * * * is no higher than the lowest price' at which sales were made anywhere in the United States during the preceding month. It is this provision that is the principal object of the appellants' constitutional attack in this litigation.
5
Section 9 effects the 'no higher than the lowest price' requirement by the addition of paragraphs (d)—(k) to § 101—b, subd. 3 of the ABC Law. The affirmation required by paragraph (d), which must be filed and verified by brand owners or their agents who sell to wholesalers in New York, must cover all sales to wholesalers anywhere in the United States by the brand owner, his agent, or any 'related person.' The less extensive affirmation required by paragraph (e), which applies to persons other than brand owners or their agents who file schedules for sales to wholesalers, need only cover sales elsewhere by the person filing the schedule. The affirmation required by paragraph (f), which must be filed by brand owners, their agents, or 'related persons' who sell to retailers in New York, must be verified by the brand owner or his agent and must cover all sales to retailers anywhere in the United States by the brand owner, his agent, or any 'related person.' The less extensive affirmation required by paragraph (g), which applies to wholesalers who are not 'related persons,' need only cover sales elsewhere by the person filing the schedule.12
6
The term 'related person' is defined in paragraphs (d) and (f) to include any person, the 'exclusive, principal or substantial business of which is the sale of a brand or brands of liquor purchased from' the brand owner or his agent. In consequence, before a 'related person' wholesaler may sell a particular brand of liquor to a New York retailer, he must secure an affirmation from the brand owner or his agent that the price charged by the wholesaler is no higher than the lowest price at which the brand was sold to any retailer in any other part of the country by any wholesaler doing 'substantial' business with the brand owner. Thus, a brand owner doing business in New York must keep himself informed of the prices charged by all 'related persons' throughout the United States.
7
The scheme of § 9 of Chapter 531 is rounded out by the addition to § 101—b, subd. 3 of the ABC Law of paragraph (h), which prohibits sales to wholesalers and retailers of brands for which no affirmation has been filed; paragraph (i), which requires the 'lowest price' to reflect all discounts and other allowances to wholesalers and retailers, with the exception of state taxes and delivery costs; and paragraphs (j) and (k), which impose criminal penalties for the filing of a false affirmation.
8
As a result of a series of stays granted throughout this litigation, the provisions of § 9 have not yet been put into effect. Our concern here, therefore, is only with the constitutionality of those provisions on their face. The appellants attack § 9 on many constitutional fronts. They contend that its provisions place an illegal burden upon interstate commerce, conflict with federal antitrust legislation and thus fall under the Supremacy Clause, and violate both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. We find all these contentions without merit.
9
Consideration of any state law regulating intoxicating beverages must begin with the Twenty-first Amendment, the second section of which provides that: 'The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.' As this Court has consistently held, 'That Amendment bestowed upon the states broad regulatory power over the liquor traffic within their territories.' United States v. Frankfort Distilleries, 324 U.S. 293, 299, 65 S.Ct. 661, 664, 89 L.Ed. 951. Cf. Nippert v. City of Richmond, 327 U.S. 416, 425, n. 15, 66 S.Ct. 586, 590, 90 L.Ed. 760. Just two Terms ago we took occasion to reiterate that 'a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders.' Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 330, 84 S.Ct. 1293, 1297, 12 L.Ed.2d 350. See State Board of Equalization of California v. Young's Market Co., 299 U.S. 59, 57 S.Ct. 77, 81 L.Ed. 38; Mahoney v. Joseph Triner Corp., 304 U.S. 401, 58 S.Ct. 952, 82 L.Ed. 1424; Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S.Ct. 163, 84 L.Ed. 128; State of California v. State of Washington, 358 U.S. 64, 79 S.Ct. 116, 3 L.Ed.2d 106. Cf. Indianapolis Brewing Co. v. Liquor Control Comm., 305 U.S. 391, 59 S.Ct. 254, 83 L.Ed. 243; Joseph S. Finch & Co. v. McKittrick, 305 U.S. 395, 59 S.Ct. 256, 83 L.Ed. 246. As the Idlewild case made clear, however, the second section of the Twenty-first Amendment has not operated totally to repeal the Commerce Clause in the area of the regulation of traffic in liquor. In Idlewild the ultimate delivery and use of the liquor was in a foreign country, and the Court held that under those circumstances New York could not forbid sales made under the explicit supervision of the United States Customs Bureau, pursuant to laws enacted by Congress under the Commerce Clause for the regulation of commerce with foreign nations. Cf. Dept. of Alcoholic Beverage Control for State of Cal. v. Ammex Warehouse Co., 378 U.S. 124, 84 S.Ct. 1657, 12 L.Ed.2d 743; Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 58 S.Ct. 1009, 82 L.Ed. 1502.
10
Unlike Idlewild, the present case concerns liquor destined for use, distribution, or consumption in the State of New York. In that situation, the Twenty-first Amendment demands wide latitude for regulation by the State. We need not now decide whether the mode of liquor regulation chosen by a State in such circumstances could ever constitute so grave an interference with a company's operations elsewhere as to make the regulation invalid under the Commerce Clause.13 See Baldwin v. G.A.F. Seelig, 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032. No such situation is presented in this case. The mere fact that § 9 is geared to appellants' pricing policies in other States is not sufficient to invalidate the statute. As part of its regulatory scheme for the sale of liquor, New York may constitutionally insist that liquor prices to domestic wholesalers and retailers be as low as prices offered elsewhere in the country. The serious discriminatory effects of § 9 alleged by appellants on their business outside New York are largely matters of conjecture. It is by no means clear, for instance, that § 9 must inevitably produce higher prices in other States, as claimed by appellants, rather than the lower prices sought for New York. It will be time enough to assess the alleged extraterritorial effects of § 9 when a case arises that clearly presents them. 'The mere fact that state action may have repercussions beyond state lines is of no judicial significance so long as the action is not within that domain which the Constitution forbids.' Osborn v. Ozlin, 310 U.S. 53, 62, 60 S.Ct. 758, 761, 84 L.Ed. 1074. Cf. Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 63 S.Ct. 602, 87 L.Ed. 777; South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177, 189, 58 S.Ct. 510, 515, 82 L.Ed. 734; Baldwin v. G.A.F. Seelig, 294 U.S. 511, 528, 55 S.Ct. 497, 502, 79 L.Ed. 1032.
11
Moreover, as the Court of Appeals observed, the regulatory procedure followed by New York is comparable to that practiced by those States, 17 in number, in which liquor is sold by the State itself and not by private enterprise. Each of these monopoly States, we are told, requires distillers to warrant that the price charged the State is no higher than the price charged in other States. In at least one of these States, the distillers are required to adjust the sales price to include all rebates and other allowances made to purchasers elsewhere, and the State has taken positive precautions to insure that the contractual commitments are fulfilled.14 In some respects the burden of gathering information for the warranties made to the monopoly States may be more onerous than that required for the affirmations under § 9, since the warranties generally cover prices in other States at the very time of sale to the monopoly State, whereas the affirmations filed under § 9 cover prices charged elsewhere during the preceding month.
12
We therefore conclude that the provisions of § 9 on their face place on unconstitutional burden on interstate commerce.
13
The appellants' contention that § 9 violates the command of the Supremacy Clause needs no extended discussion. The argument is based upon a claimed inconsistency between § 9 and the federal antitrust laws, specifically the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1—7 (1964 ed.), and § 2 of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13 (1964 ed.).
14
In this as in other areas of coincident federal and state regulation, the 'teaching of this Court's decisions * * * enjoin(s) seeking out conflicts between state and federal regulation where none clearly exists.' Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 446, 80 S.Ct. 813, 817, 4 L.Ed.2d 852. We find no such clear conflict in the present case. The bare compilation, without more, of price information on sales to wholesalers and retailers to support the affirmations filed with the State Liquor Authority would not of itself violate the Sherman Act. Maple Flooring Mfrs. Assn. v. United States, 268 U.S. 563, 582—586, 45 S.Ct. 578, 584—586, 69 L.Ed. 1093; cf. American Column & Lumber Co. v. United States, 257 U.S. 377, 42 S.Ct. 114, 66 L.Ed. 284. Section 9 imposes no irresistable economic pressure on the appellants to violate the Sherman Act in order to comply with the requirements of § 9. On the contrary, § 9 appears firmly anchored to the assumption that the Sherman Act will deter any attempts by the appellants to preserve their New York price level by conspiring to raise the prices at which liquor is sold elsewhere in the country. Nothing in the Twenty-first Amendment, of course, would prevent enforcement of the Sherman Act against such a conspiracy. United States v. Frankfort Distilleries, 324 U.S. 293, 299, 65 S.Ct. 661, 664, 89 L.Ed. 951.
15
Although it is possible to envision circumstances under which price discriminations proscribed by the Robinson-Patman Act might be compelled by § 9, the existence of such potential conflicts is entirely too speculative in the present posture of this case to support the conclusion that New York is foreclosed from regulating liquor prices in the manner it has chosen.15 Moreover, § 7 of Chapter 531 has amended the ABC Law by granting to the State Liquor Authority ample discretion to modify the schedule requirements.16 We cannot presume that the Authority will not exercise that discretion to alleviate any friction that might result should the ABC Law chafe against the Robinson-Patman Act or any other federal statute.
16
There remain for consideration the appellants' Fourteenth Amendment claims. Section 9, they say, violates the Due Process Clause in two respects, first because it imposes an 'unreasonable, arbitrary and capricious' burden upon them, and second because the statutory definition of 'related person' is so vague as to be constitutionally intolerable. And § 9 violates the Equal Protection Clause, they say, because it arbitrarily discriminates among various segments of the liquor industry.
17
The first contention amounts to a claim of a deprivation of due process of law, based on the argument that s 9 is not designed to promote temperance and that it is an unwise, impractical, and oppressive law. But it is not 'the province of courts to draw on their own views as to the morality, legitimacy, and usefulness of a particular business in order to decide whether a statute bears too heavily upon that business and by so doing violates due process. Under the system of government created by our Constitution, it is up to legislatures, not courts, to decide on the wisdom and utility of legislation. There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy. * * * The doctrine * * * 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. * * *' Ferguson v. Skrupa, 372 U.S 726, 728—730, 83 S.Ct. 1028, 1030—1031, 10 L.Ed.2d 93.
18
Moreover, nothing in the Twenty-first Amendment or any other part of the Constitution requires that state laws regulating the liquor business be motivated exclusively by a desire to promote temperance.17 The announced purpose of the legislature was to eliminate 'discrimination against and disadvantage of consumers' in the State.18 Frustrated by years of unhappyexperience with a state-enforced mandatory resale price maintenance system that placed exclusive price-fixing power in the hands of the distillers, the legislature adopted § 9 as the core of the liquor price reform contemplated by Chapter 531. We cannot say that the legislature acted unconstitutionally when it determined that only by imposing the relatively drastic 'no higher than the lowest price' requirement of § 9 could the grip of the liquor distillers on New York liquor prices be loosened.19 In a variety of cases in areas no more sensitive than that of liquor control, this Court has upheld state maximum price legislation. See Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940; Townsend v. Yeomans, 301 U.S. 441, 57 S.Ct. 842, 81 L.Ed. 1210; O'Gorman & Young v. Hartford Fire Ins. Co., 282 U.S. 251, 51 S.Ct. 130, 75 L.Ed. 324; Gold v. DiCarlo, 380 U.S. 520, 85 S.Ct. 1332, 14 L.Ed.2d 266.
19
The statutory definition of 'related person,' which the appellants attack as unconstitutionally vague, includes any person 'the exclusive, principal or substantial business of which is the sale of a brand or brands of liquor purchased from such brand owner or wholesaler designated as agent * * *.' The claim of vagueness is centered upon the term 'principal or substantial.' We cannot agree that that language is so vague as to be constitutionally invalid. The Deputy Commissioner of the State Liquor Authority testified in these proceedings that where the determination of 'related persons' is unclear, the appellants will have access to the Authority for a ruling to clarify the issue.20 As the Court said in Board of Governors of Federal Reserve System v. Agnew, 329 U.S. 441, 449, 67 S.Ct. 411, 415, 91 L.Ed. 408, '* * * we think it plain under our decisions that if substantiality is the statutory guide, the limits of administrative action are sufficiently definite or ascertainable so as to survive challenge on the grounds of unconstitutionality.' Cf. Opp Cotton Mills v. Administrator, 312 U.S. 126, 142—146, 61 S.Ct. 524, 531—533, 85 L.Ed. 624; Bowles v. Willingham, 321 U.S. 503, 512—516, 64 S.Ct. 641, 646—648, 88 L.Ed. 892.
20
Further, as the record indicates, the structure of the liquor industry is such that even the largest national distillers deal through a relatively limited number of wholesalers.21 Frequently, a wholesaler agrees with a distiller not to sell brands of competing distillers in the same price range, and the prices charged by these wholesalers are potentially subject to the influence of the distillers.22 We cannot say, therefore, that § 9 on its face imposes an unconstitutional burden on distillers or wholesalers in ascertaining the wholesalers who satisfy the 'related person' criterion or in obtaining information on prices charged by such wholesalers.
21
We come, then, to the appellants' argument that § 9 violates the Equal Protection Clause. That argument is based upon the claim that it was arbitrary for the legislature to except consumer sales and private label brands of liquor from the 'no higher than the lowest price' requirement of § 9, and to reduece the scope of the price affirmation required with respect to sales made to wholesalers and retailers by those who are not 'related persons.'
22
We do not find that these differentiations constitute invidious discrimination. The legislature could reasonably have believed that, once the prices on sales by distillers and 'related persons' were reduced, the prices of private label brands and brands sold by non-'related persons' would follow suit. Nor was it necessary for the legislature to impose the 'no higher than the lowest price' requirement on sales by retailers to consumers. The legislature might reasonably have concluded that consumer prices would adequately reflect the reductions in prices to wholesalers and retailers accomplished by § 9, even though the state fair trade statute, which permits private resale price maintenance agreements on sales to consumers, appears to have emerged unscathed by the enactment of Chapter 531.23 'A statute is not invalid under the Constitution because it might have gone farther than it did, or because it may not succeed in bringing about the result that it tends to produce.' Roschen v. Ward, 279 U.S. 337, 339, 49 S.Ct. 336, 73 L.Ed. 722. '(T)he reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.' Williamson v. Lee Optical of Okl., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563.
23
Although the appellants' primary attack is upon the constitutionality of § 9, they also challenge two minor provisions added by § 7 of Chapter 531 to the schedule requirements of the ABC Law. The first provision which requires the price schedules to cover sales to wholesalers 'irrespective of the place of sale or delivery,' is designed to bring wholesalers within the price-publicity requirement of the law, even though they take delivery of the liquor outside New York for distribution within the State. The second provision, which requires the price schedules on sales to both wholesalers and retailers to include 'the net bottle and case price paid by the seller,' tends to promote publicity of the seller's profit margins.24 There is no indication in the present record that the State Liquor Authority will require the appellants to file schedules of prices on sales unrelated to the distribution of liquor in New York. As the Court of Appeals observed with regard to these provisions, 'The statute is concerned with New York practices and, if the sales in other States have no relevancy to New York enforcement, the statute permits the Liquor Authority for good cause to waive the general prohibition against sales to wholesalers in the absence of such schedules. It would be reasonable to expect that the statute would be administered consistently with its sole purpose to regulate the intrastate sale of liquor.' 16 N.Y.2d 47, 59, 262 N.Y.S.2d 75, 82, 209 N.E.2d 701, 706. We accept this construction of the statute by New York's highest court. N.A.A.C.P. v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 337, 9 L.Ed.2d 405. As so construed, these provisions serve a clear and legitimate interest of New York in the exercise of its constitutional power to regulate the sale of liquor within its borders.
24
For the reasons that we have stated, we find no constitutional infirmity in any of the 1964 amendments to the New York ABC Law challenged on this appeal. Although it is possible that specific future applications of Chapter 531 may engender concrete problems of constitutional dimension, it will be time enough to consider any such problems when they arise. We deal here only with the statute on its face. And we hold that, so considered, the legislation is constitutionally valid. Accordingly, the judgment of the New York Court of Appeals is affirmed.
25
Affirmed.
APPENDIX TO OPINION OF THE COURT.
26
Chapter 531, 1964 Session Laws of New York.
27
s 7. Section one hundred one-b of such law, as added by chapter eight hundred ninety-nine of the laws of nineteen hundred forty-two, subdivision four thereof having been amended by chapter five hundred fifty-one of the laws of nineteen hundred forty-eight, is hereby amended to read as follows:
28
s 101—b. Unlawful discriminations prohibited; filing of schedules; schedule listing fund
29
3. (a) No brand of liquor or wine shall be sold to or purchased by a wholesaler, irrespective of the place of sale or delivery, unless a schedule, as provided by this section, is filed with the liquor authority, and is then in effect. Such schedule shall be in writing duly verified, and filed in the number of copies and form as required by the authority, and shall contain, with respect to each item, the exact brand or trade name, capacity of package, nature of contents, age and proof where stated on the label, the number of bottles contained in each case, the bottle and case price to wholesalers, the net bottle and case price paid by the seller, which prices, in each instance, shall be individual for each item and not in 'combination' with any other item, the discounts for quantity, if any, and the discounts for time of payment, if any. Such brand of liquor or wine shall not be sold to wholesalers except at the price and discounts then in effect unless prior written permission of the authority is granted for good cause shown and for reasons not inconsistent with the purpose of this chapter. Such schedule shall be filed by (1) the owner of such brand, or (2) a wholesaler selling such brand and who is designated as agent for the purpose of filing such schedule if the owner of the brand is not licensed by the authority, or (3) with the approval of the authority, by a wholesaler, in the event that the owner of the brand is unable to file a schedule or designate an agent for such purpose.
30
(b) No brand of liquor or wine shall be sold to or purchased by a retailer unless a schedule, as provided by this section, is filed with the liquor authority, and is then in effect. Such schedule shall be in writing duly verified, and filed in the number of copies and form as required by the authority, and shall contain, with respect to each item, the exact brand or trade name, capacity of package, nature of contents, age and proof where stated on the label, the number of bottles contained in each case, the bottle and case price to retailers, the net bottle and case price paid by the seller, which prices, in each instance, shall be individual for each item and not in 'combination' with any other item, the discounts for quantity, if any, and the discounts for time of payment, if any. Such brand of liquor or wine shall not be sold to retailers except at the price and discounts then in effect unless prior written permission of the authority is granted for good cause shown and for reasons not inconsistent with the purpose of this chapter. Such schedule shall be filed by each manufacturer selling such brand to retailers and by each wholesaler selling such brand to retailers.
31
(c) Provided however, nothing contained in this section shall require any manufacturer or wholesaler to list in any schedule to be filed pursuant to this section any item offered for sale to a retailer under a brand which is owned exclusively by one retailer and sold at retail within the state exclusively by such retailer.
32
s 8. In enacting section eleven of this act, it is the firm intention of the legislature (a) that fundamental principles of price competition should prevail in the manufacture, sale and distribution of liquor in this state, (b) that consumers of alcoholic beverages in this state should not be discriminated against or disadvantaged by paying unjustifiably higher prices for brands of liquor than are paid by consumers in other states, and that price discrimination and favoritism are contrary to the best interests and welfare of the people of this state, and (c) that enactment of section eleven of this act will provide a basis for eliminating such discrimination against and disadvantage of consumers in this state. In order to forestall possible monopolistic and anti-competitive practices designed to frustrate the elimination of such discrimination and disadvantage, it is hereby further declared that the sale of liquor should be subjected to certain further restrictions, prohibitions and regulations, and the necessity for the enactment of the provisions of section nine of this act is, therefore, declared as a matter of legislative determination.
33
s 9. Subdivision three of section one hundred one-b of such law, as amended by section seven of this act, is hereby amended to add eight new paragraphs, to be paragraphs (d), (e), (f), (g), (h), (i), (j) and (k), to read as follows:
34
(d) There shall be filed in connection with and when filed shall be deemed part of the schedule filed for a brand of liquor pursuant to paragraph (a) of this subdivision an affirmation duly verified by the owner of such brand of liquor, or by the wholesaler designated as agent for the purpose of filing such schedule if the owner of the brand of liquor is not licensed by the authority, that the bottle and case price of liquor to wholesalers set forth in such schedule is no higher than the lowest price at which such item of liquor was sold by such brand owner or such wholesaler designated as agent, or any related person, to any wholesaler anywhere in any other state of the United States or in the District of Columbia, or to any state (or state agency) which owns and operates retail liquor stores, at any time during the calendar month immediately preceding the month in which such schedule is filed. As used in this paragraph (d), the term 'related person' shall mean any person (1) in the business of which such brand owner or wholesaler designated as agent has an interest, direct or indirect, by stock or other security ownership, as lender or lienor, or by interlocking directors or officers, or (2) the exclusive, principal or substantial business of which is the sale of a brand or brands of liquor purchased from such brand owner or wholesaler designated as agent, or (3) which has an exclusive franchise or contract to sell such brand or brands.
35
(e) There shall be filed in connection with and when filed shall be deemed part of any other schedule filed for a brand of liquor pursuant to paragraph (a) of this subdivision an affirmation duly verified by the person filing such schedule that the bottle and case price of liquor to wholesalers set forth in such schedule is no higher than the lowest price at which such item of liquor was sold by such person to any wholesaler anywhere in any other state of the United States or in the District of Columbia, or to any state (or state agency) which owns and operates retail liquor stores, at any time during the calendar month immediately preceding the month in which such schedule is filed.
36
(f) There shall be filed in connection with and when filed shall be deemed part of any schedule filed for a brand of liquor pursuant to paragraph (b) of this subdivision by the owner of such brand of liquor, or by the wholesaler designated as agent for the purpose of filing such schedule if the owner of the brand of liquor is not licensed by the authority, or by a related person, an affirmation duly verified by such brand owner or such wholesaler designated as agent that the bottle and case price of liquor to retailers set forth in such schedule is no higher than the lowest price at which such item of liquor was sold by such brand owner of (sic) such wholesaler designated as agent, or any related person, to any retailer anywhere in any other state of the United States or in the District of Columbia, other than to any state (or state agency) which owns and operates retail liquor stores, at any time during the calendar month immediately preceding the month in which such schedule is filed. As used in this paragraph (f), the term 'related person' shall mean any person (1) in the business of which such brand owner or wholesaler designated as agent has an interest, direct or indirect, by stock or other security ownership, as lender or lienor, or by interlocking directors or officers, or (2) the exclusive, principal or substantial business of which is the sale of a brand or brands of liquor purchased from such brand owner or wholesaler designated as agent, or (3) who has an exclusive franchise or contract to sell such brand or brands.
37
(g) There shall be filed in connection with and when filed shall be deemed part of any other schedule filed for a brand of liquor pursuant to paragraph (b) of this subdivision an affirmation duly verified by the person filing such schedule that the bottle and case price of liquor to retailers set forth in such schedule is no higher than the lowest price at which such item of liquor was sold by such person to any retailer anywhere in any other state of the United States or in the District of Columbia, other than to any state (or state agency) which owns and operates retail liquor stores, at any time during the calendar month preceding the month in which such schedule is filed.
38
(h) In the event an affirmation with respect to any item of liquor is not filed within the time provided by this section, any schedule for which such affirmation is required shall be deemed invalid with respect to such item of liquor, and no such item may be sold to or purchased by any wholesaler or retailer during the period covered by any such schedule.
39
(i) In determining the lowest price for which any item of liquor was sold in any other state or in the District of Columbia, or to any state (or state agency) which owns and operates retail liquor stores, appropriate reductions shall be made to reflect all discounts in excess of those to be in effect under such schedule, and all rebates, free goods, allowances and other inducements of any kind whatsoever offered or given to any such wholesaler, state (or state agency) or retailer, as the case may be, purchasing such item in such other state or in the District of Columbia; provided that nothing contained in paragraphs (d), (e), (f) and (g) of this subdivision shall prevent differentials in price which make only due allowance for differences in state taxes and fees, and in the actual cost of delivery. As used in this paragraph, the term 'state taxes or fees' shall mean the excise taxes imposed or the fees required by any state or the District of Columbia upon or based upon the gallon of liquor, and the term 'gallon' shall mean one hundred twenty-eight fluid ounces.
40
(j) Notwithstanding and in lieu of any other penalty provided in any other provisions of this chapter, any person who makes a false statement in any affirmation made and filed pursuant to paragraph (d), (e), (f) or (g) of this subdivision shall be guilty of a misdemeanor, and upon conviction thereof shall be punishable by a fine of not more than ten thousand dollars or by imprisonment in a county jail or penitentiary for a term of not more than six months or by both such fine and imprisonment. Every affirmation made and filed pursuant to paragraph (d), (e), (f) or (g) of this subdivision shall be deemed to have been made in every county in this state in which the brand of liquor is offered for sale under the terms of said schedule. The attorney general or any district attorney may prosecute any person charged with the commission of a violation of this paragraph. In any such prosecution by the attorney general, he may appear in person or by his deputy or assistant before any court or any grand jury and exercise all the powers and perform all the duties in respect of any such proceeding which the district attorney would otherwise be authorized or required to exercise or perform, and in such prosecution the district attorney shall only exercise such powers and perform such duties as are required of him by the attorney general or his deputy or assistant so attending.
41
(k) Upon final judgment of conviction of any person after appeal, or in the event no appeal is taken, upon the expiration of the time during which an appeal could have been taken, the liquor authority may refuse to accept for any period of months not exceeding three calendar months any affirmation required to be filed by such person.
1
The appellants also challenged two minor provisions of § 7 of Chapter 531, 1964 Session Laws of New York. See pp. 51-52, infra. The relevant provisions of §§ 7, 8 and 9 of Chapter 531 are set out in the Appendix to this opinion.
2
45 Misc.2d 956, 258 N.Y.S.2d 442.
3
23 A.D.2d 933, 259 N.Y.S.2d 644.
4
16 N.Y.2d 47, 209 N.E.2d 701, 262 N.Y.S.2d 75.
5
382 U.S. 924, 86 S.Ct. 316, 15 L.Ed.2d 338.
6
Laws 1942, c. 899, § 1, Alcoholic Beverage Control Law, McKinney's Consol. Laws, c. 3—B, §§ 101—b, subd. 3(a)—(d) (1946 ed.).
7
Laws 1950, c. 689, § 1, Alcoholic Beverage Control Law, § 101—c (1964 Supp.).
8
See New York State Legislative Annual 401—408, 484—489, 498—500 (1964); Breuer, Moreland Act Investigations in New York: 1907—65, pp. 131—169 (1965). The Commission's Study Paper Number 5 ('Resale Price Maintenance in the Liquor Industry') and Report and Recommendations No. 3 ('Mandatory Resale Price Maintenance') are part of the record in this case.
9
Based upon the comparative price data it assembled, including examples of wholesale liquor prices in New York higher than retail prices elsewhere, the Commission concluded that, because of the mandatory resale price maintenance provision, New Yorkers wre subsidizing the liquor industry by $150,000,000 a year.
10
The Commission made various other recommendations, including relaxation of certain restrictions on package store licenses and elimination of some of the conditions imposed on establishments serving liquor by the drink.
11
The mandatory resale price maintenance provision, § 101 c, was repealed by § 11 of Chapter 531.
12
Sellers seeking to take advantage of the milder affirmations required by paragraphs (e) and (g) must file a representation that they are not 'related persons.' See Alcoholic Beverage Control Law, Appendix, Rule 16 of the State Liquor Authority, § 65.7(e) (1965 Supp.), 9 NYCRR 65.7(e). The schedule requirements of § 101—b do not apply to sales of private label brands of liquor. Alcoholic Beverage Control Law, § 101—b, subd. 3(c).
13
Cf. United States v. Frankfort Distilleries, 324 U.S. 293, 299, 65 S.Ct. 661, 664, 89 L.Ed. 951, where we stated that the Twenty-first Amendment 'has not given the states plenary and exclusive power to regulate the conduct of persons doing an interstate liquor business outside their boundaries.' See also Note, The Twenty-first Amendment Versus the Interstate Commerce Clause, 55 Yale L.J. 815 (1946).
14
The executive vice-president of one of the appellants testified that 'We and other distillers have freely entered into contracts with these monopoly states in which we warrant that the f.o.b. prices at which our brands are offered to those states are no higher than the lowest price at which we sell in other states.'
The Deputy Commissioner of the State Liquor Authority testified that '(I)n a number of other States, e.g., in the State of Pennsylvania, some of these same plaintiffs have been warranting for some time past that the price quoted to the Pennsylvania Liquor Control Board is 'the lowest current price quoted to any other customer,' or 'to any purchaser, dealer, agent or agency of any nature or kind anywhere in the United States of America." The same witness later added that '(A)s part and parcel of the offerings of their products in, for example, the State of Pennsylvania, they warrant that 'if and when special cash or commodity allowances, post-offs or discounts are offered to purchasers in any other State or the District of Columbia, the same' shall also be offered the Pennsylvania Liquor Control Board.'
The Chairman of the Commission testified at a public hearing before a joint legislative committee that 'We have, for example, the State of Pennsylvania which is the largest purchaser of liquor in the world. I think they purchase almost $400,000,000 worth of liquor a year—one customer. They swing a very big bit of leverage, and you cannot be convinced that that Pennsylvania customer does not insist on the lowest price that the distiller offers anywhere in the country. * * * (T)he State of Pennsylvania has a contract which permits them to send accountants into any supplier's office and they do. They send corps of accountants into suppliers' offices to determine whether or not they're getting the best price. And in fact, if they were not, they would have a violation of contract * * *.'
In the monopoly States, of course, no sales to retailers by private wholesalers take place. Thus, brand owners dealing with those States are not placed in the position of vouching for sales to retailers by wholesalers occupying a 'related person' status.
15
Cf. State of Wisconsin v. Texaco, Inc., 14 Wis.2d 625, 630—631, 111 N.W.2d 918, 921; Safeway Stores v. Oklahoma Retail Grocers Assn., 360 U.S. 334, 342, n. 7, 79 S.Ct. 1196, 1202, 3 L.Ed.2d 1280.
16
Sections 101—b, subd. 3(a) and (b) of the ABC Law, as amended by § 7 of Chapter 531, provide: '* * * Such brand of liquor * * * shall not be sold to wholesalers ('retailers' in § 101—b—3(b)) except at the price and discounts then in effect unless prior written permission of the authority is granted for good cause shown and for reasons not inconsistent with the purpose of this chapter. * * *'
17
See State Board of Equalization of California v. Young's Market Co., 299 U.S. 59, 57 S.Ct. 77, 81 L.Ed. 38; Mahoney v. Joseph Triner Corp., 304 U.S. 401, 58 S.Ct. 952, 82 L.Ed. 1424; Indianapolis Brewing Co. v. Liquor Control Comm., 305 U.S. 391, 59 S.Ct. 254, 83 L.Ed. 243; Joseph S. Finch & Co. v. McKittrick, 305 U.S. 395, 59 S.Ct. 256, 83 L.Ed. 246; Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S.Ct. 163, 84 L.Ed. 128; State of California v. State of Washington, 358 U.S. 64, 79 S.Ct. 116, 3 L.Ed.2d 106.
18
The intent of the legislature in enacting § 9 is expressed in § 8 of Chapter 531: '* * * In order to forestall possible monopolistic and anti-competitive practices designed to frustrate the elimination of * * * discrimination and disadvantage (to consumers), it is hereby further declared that the sale of liquor should be subjected to certain further restrictions, prohibitions and regulations, and the necessity for the enactment of the provisions of section nine of this act is, therefore, declared as a matter of legislative determination.'
The preceding portion of § 8 states the intent of the legislature in enacting § 11 of Chapter 531, which repealed § 101 c, the mandatory resale price maintenance provision. See Appendix, infra, p. 54.
19
We also find without merit the appellants' objection that the price computation provision, § 101—b, subd. 3(i), sweeps too broadly. That provision was intended to circumvent the established industry practice of interpreting 'price' as 'invoice price' rather than the amount actually realized by the seller on the transaction. There is no indication in the record that § 101—b, subd. 3(i) as applied will require the reflection in New York of every idiosyncratic price fluctuation elsewhere in the United States that happens to produce a 'lowest price.'
20
Section 101—b, subd. 4 of the ABC Law authorizes the State Liquor Authority to promulgate rules to carry out the purpose of § 101—b.
21
The vice-president of Joseph E. Seagram & Sons, Inc., one of the largest national distillers, testified that 'Of the 330 wholesalers selling Seagram throughout the country, sixteen do 75 per cent or more of their business in the sale of our brands. Sixty-one do approximately 60 to 75 per cent in the sale of these brands; seventy-three do 40 to 60 per cent; seventy-nine, 20 to 40 per cent; sixty-four, 5 to 20 per cent; thirty-seven, 1 to 5 per cent.'
22
See Borregard & Glusker, The Distilled Spirits Industry: A Marketing Survey 65—104, 133—163 (Yale Law School 1950); Oxenfeldt, 'Whiskey Prices,' Industrial Pricing and Market Practices 445, 477, 483—486 (1951).
23
The New York fair trade statute is the Feld-Crawford Act, Laws 1940, c. 195, § 3, as amended, General Business Law, McKinney's Consol.Laws, c. 20, §§ 369-a—369-e. See National Distillers & Chemical Corp. v. Seyopp Corp., 17 N.Y.2d 12, 267 N.Y.S.2d 193, 214 N.E.2d 361; National Distillers & Chemical Corp. v. R. H. Macy & Co., 23 A.D.2d 51, 258 N.Y.S.2d 298; Fleischmann Distilling Corp. v. R. H. Macy & Co., 24 A.D.2d 977, 265 N.Y.S.2d 384; Victor Fischel & Co. v. R. H. Macy & Co., N.Y.Sup.Ct., 154 N.Y.L.J. No. 95, p. 17 (Nov. 17, 1965).
24
Where the manufacturer is also the seller, this provision is inapplicable. See Alcoholic Beverage Control Law, Appendix, Rule 16 of the State Liquor Authority, § 65.6(b)(3) (1965 Supp.), 9 NYCRR 65.6(b)(3).
| 78
|
384 U.S. 59
86 S.Ct. 1253
16 L.Ed.2d 353
Joe Robert COLLIER, Petitioner,v.UNITED STATES.
No. 695.
Argued March 24, 1966.
Decided April 19, 1966.
Dean E. Denlinger, Dayton, Ohio, for petitioner.
Paul Bender, Washington, D.C., for respondent, pro hac vice, by special leave of Court.
PER CURIAM.
1
On March 24, 1965, a jury in a federal district court found petitioner guilty of violating the Mann Act, 18 U.S.C. § 2421 (1964 ed.), and a formal judgment was entered against him on the same day. Nine days later, on April 2, 1965, a new trial motion was filed by petitioner's counsel alleging various errors at trial. Since Fed.Rule Crim.Proc. 33 expressly requires that a new trial motion not based on newly discovered evidence be filed within five days of the verdict, petitioner's motion was untimely and the District Court denied it on April 5, 1965. On April 12, 1965, seven days after the denial of the motion and 19 days after the judgment, petitioner through counsel filed a notice of appeal from his conviction. The Court of Appeals for the Sixth Circuit dismissed the appeal as untimely, a ruling in accord with the views of several other circuit but in conflict with those of the Tenth Circuit. Compare, e.g., United States v. Bertone, 249 F.2d 156 (C.A.3d Cir.), with Smith v. United States, 273 F.2d 462 (C.A.10th Cir.). Treating petitioner's petition for mandamus as one for a writ of certiorari, we granted certiorari, 382 U.S. 890, 86 S.Ct. 188, 15 L.Ed.2d 148, to consider the time-liness question, left open in Lott v. United States, 367 U.S. 421, 425, 81 S.Ct. 1563, 1566, 6 L.Ed.2d 940. We reverse the Court of Appeals and remand the case to allow petitioner's appeal to be heard.
2
Federal Rule of Criminal Procedure 37(a)(2), entitled 'Time for Taking Appeal,' provides in relevant part that '(a)n appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from, but if a motion for a new trial or in arrest of judgment has been made within the 10-day period an appeal from a judgment of conviction may be taken within 10 days after entry of the order denying the motion.' Plainly petitioner's appeal was timely if this Rule is literally read since the appeal was filed within 10 days after denial of a new trial motion itself filed within 10 days of the judgment of conviction. To the contrary, the Government argues that a new trial motion, not based on newly discovered evidence, filed more than five days after the verdict and so destined to be rejected as untimely under Rule 33 should not serve to give defendant an extension of time to appeal since there is no possibility the appeal will be avoided by a grant of the motion. Further support is found by the Government in a number of courts of appeals' decisions adopting this view, in the history of Rule 37(a)(2), and in a very recent amendment to that Rule which plainly adopts the Government's basic approach for the future.*
3
We believe computing interests out-weigh the Government's arguments. The literal language of Rule 37(a)(2) sustains petitioner and even a perceptive reading of Rules 33 and 37(a)(2) together would not dispel all doubt. A criminal appeal is at stake and under Fed.Rule Crim.Proc. 45(b) the period for taking it may not be extended, while the rare and relatively brief delay in appeal allowed by petitioner's construction causes very little injury to the Government. In these circumstances a reading that departs from the literal terms of Rule 37(a)(2) by constricting the opportunity to appeal seems to us inappropriate. Because of our disposition we need not consider a suggestion by the Government, apparently not made to or passed on by the Court of Appeals in this case but first tentatively raised after the grant of certiorari and only later pressed upon us in oral argument, that on the present facts a motion for bail bond filed by petitioner nine days after his conviction may do unintended service as a notice of appeal.
4
Reversed and remanded.
5
Mr. Justice BLACK concurs in the Court's judgment for the reasons stated in the opinion of the Court of Appeals for the Fifth Circuit in O'Neal v. United States, 272 F.2d 412.
*
The amendment, approved by the Court on February 28, 1966, and absent disapproval by Congress effective on July 1, 1966, pertinently provides: 'If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of the order denying the motion.' (Emphasis added.) Thus the effect of the amendment is to embrace prospectively the Government's view of the interrelationship between Rules 33 and 37(a)(2). A contemporaneous amendment to Rule 33 would extend the time for filing a new trial motion from five to seven days.
| 01
|
384 U.S. 73
86 S.Ct. 1286
16 L.Ed.2d 376
John A. BURNS, Governor of the State of Hawaii, Appellant,v.William S. RICHARDSON et al. Elmer F. CRAVALHO et al., Appellants, v. William S. RICHARDSON et al. Kazuhisa ABE et al., Appellants, v. William S. RICHARDSON et al.
Nos. 318, 323 and 409.
Argued Feb. 21, 1966.
Decided April 25, 1966.
[Syllabus from pages 73-74 intentionally omitted]
Bertram T. Kanbara, Honolulu, Hawaii, and Dennis G. Lyons, Washington, D.C., for appellant in No. 318 and appellees in Nos. 323 and 409.
Yukio Naito, Honolulu, Hawaii, for appellants in No. 409 and appellees in Nos. 318 and 323.
James T. Funaki, Honolulu, Hawaii, for appellants in No. 323 and appellees in Nos. 318 and 409.
Robert G. Dodge and Masaji Marumoto, Honolulu, Hawaii, for appellees in all three cases.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This reapportionment case was brought in the District Court of Hawaii by residents and qualified voters of the City and County of Honolulu, appellees in each of the three appeals consolidated here. They alleged that Hawaii's legislative apportionment was unconstitutional under our decisions in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, and companion cases.1 William S. Richardson, Lieutenant Governor of Hawaii, also an appellee in all three appeals, was named defendant in his capacity as the state officer responsible for supervising state elections. John A. Burns, Governor of Hawaii, appellant in No. 318, intervened as a party plaintiff. Members of the State House of Representatives, appellants in No. 323, and members of the State Senate, appellants in No. 409, intervened as parties defendant.
2
Under the Hawaii Constitution, adopted in 1950 and put into effect upon admission to statehood in 1959, the State is divided into four major counties, referred to in the State Constitution as 'basic areas.' Each county is made up of a group of islands, separated from each of the other counties by wide and deep ocean waters. The principal island of the City and County of Honolulu, the most populous county, is the island of Oahu. It is the State's industrial center, principal tourist attraction, and site of most of the many federal military establishments located in the State. In 1960, 79% of the State's populationlived there. The three other counties, primarily rural and agricultural, are Hawaii County, Maui County, and Kauai County.2
3
The apportionment article of the State Constitution was framed to assure that the three small counties would choose a controlling majority of the State Senate and that the population center, Oahu, would control the State House of Representatives. Thus, Art. III, § 2, of the State Constitution apportions a 25-member senate among six fixed senatorial districts, assigning a specified number of seats to each. Fifteen senate seats, a controlling majority, are allocated among Hawaii, Kauai and Maui Counties and 10 seats are assigned to Oahu. Alteration of this apportionment is made very difficult by a provision 'that no constitutional amendment altering * * * the representation from any senatorial district in the senate shall become effective unless it shall also be approved by a majority of the votes tallied upon the question in each of a majority of the counties.'3 Hawaii Const., Art. XV, § 2, 6.
4
For the State House of Representatives, on the other hand, the State Constitution establishes 18 representative districts, 10 of which are on Oahu, and requires the Governor to apportion the 51-member body among these districts on the basis of the number of voters registered in each. The first apportionment occurred in 1959, just prior to statehood, and was based on registration figures for the 1958 territorial election. It produced 13 multi-member representative districts and five single-member districts, and allocated 36 representatives, a controlling majority, to Oahu.4 The Governor is required to reapportion the State decennially, a duty which may be enforced by mandamus from the State Supreme Court.
5
This apportionment scheme was first attacked in the Supreme Court of Hawaii, within a month after we decided Reynolds v. Sims. That court refused to pass on the validity of the apportionment at that time. It noted the imminence of the 1964 election and stated its belief that, consistent with the Hawaii Constitution, judicial proceedings should await legislative proposals for a constitutional amendment or a constitutional convention. Guntert v. Richardson, 47 Haw. 662, 394 P.2d 444. Compare Reynolds v. Sims, 377 U.S., at 585, 84 S.Ct., at 1393. A special legislative session was then called by the Governor to consider reapportionment. It failed to act.
6
This suit was brought on August 13, 1964. A three-judge court was convened, as required by 28 U.S.C. §§ 2281, 2284 (1964 ed.). Interim relief was denied in view of the pendency of the 1964 elections and hearings were set for January 1965. The court published its first decision and order on February 17, 1965. 238 F.Supp. 468. That order declared all provisions of the apportionment plan contained in the Hawaii Constitution valid under the Equal Protection Clause except the mentioned provisions relating to the apportionment of the State Senate. These were affirmatively declared to be invalid and unconstitutional.
7
In the February 17 order the District Court decided not to fashion its own reapportionment plan for the senate. Nor did it instruct the legislature to reapportion the senate or to propose constitutional amendments for that purpose.5 Instead, it directed the legislature to submit to the electorate at an immediate special election the question, 'Shall there be a convention to propose a revision of or amendments to the Constitution?' The legislature was also directed to establish the convention procedures according to a timetable the court set.6 The court retained jurisdiction for all purposes, including that of itself reapportioning the senate in the event of a negative vote on the question, failure of the convention to adopt a suitable amendment, or rejection by the electorate of the amendment adopted by the convention.
8
The court chose the convention route over the legislative route for two reasons. Under the Hawaii Constitution all elections necessary to adoption of amendments proposed by a constitutional convention may be held on a special basis. Legislative proposals, on the other hand, may be submitted only at a general election. In starting the machinery necessary for a convention, the court hoped that a valid permanent plan could be presented to the electorate and adopted before the next general election, to be held in 1966. The second reason was that the court doubted that the legislature would be able to agree on an amendment proposal for reapportioning the senate, in view of the failure of the previously called legislative special session to act.
9
The special elections necessary under the court's order, however, entailed substantial expense. On motion of the intervening legislators, which showed substantial progress towards a legislative proposal for amendment, the court on March 9, 1965, modified its order. As suggested by the parties, it suspended the February 17 order and instead required the legislature to enact three separate statutes before turning to regular legislative business. One statute was to propose an interim senate apportionment plan, using registered voters as a basis, to be submitted to the court. If approved, it would be adopted by the court as its plan for use in the 1966 general election. The second statute was to propose a constitutional amendment embodying pertinent provisions of the interim plan, to be submitted to the people for approval at that election. The third statute was to submit the question of calling a constitutional convention to the electorate at the 1966 general election.
10
Three statutes were enacted. H.B. 987, the only one of these measures before us,7 proposed an interim plan of apportionment for the senate. 1 Hawaii Sess.Laws 1965, Act 281. The plan followed the pattern for house apportionment. It established eight senatorial districts, five on Oahu. As required by the court's order, the 25 senators were to be apportioned on the basis of registered voters.8 Using figures derived from registration for the 1964 general elections, Oahu was allocated 19 out of the 25 senators, a controlling majority.
11
Under the total apportionment scheme which resulted from this enactment, Oahu would not have any single-member districts in either the house or the senate. The distribution of registered voters in Oahu is such that Oahu's 10 representative districts have two to six representatives each, and its five senatorial districts each would have either three or four senators. Hawaii County would be a single senatorial district represented by three senators and have five representative districts, four choosing a single representative and the fifth electing three. Maui County would be a single senatorial district electing two senators and have two representative districts, one electing four, and the other a single representative. Kauai County would be a single senatorial and a single representative district electing one senator and three representatives. Thus, Oahu with 79% of total population would elect 76% of the senate, 19 of 25 senators, and 71% of the house, 36 of 51 representatives.
12
The new senate apportionment scheme was submitted to the court immediately upon passage. By opinion and order of April 28, 1965, the District Court disapproved it, and reinstated the provision of its earlir order requiring immediate resort to the convention method.9 240 F.Supp. 724. It expressly approved the use of the registered voters measure of population. Its disapproval was based on the legislative decision not to create singlemember senatorial districts for Oahu but merely to increase the number of multi-member senatorial districts on that island from two to five. It was not contended that the apportionment failed to meet the standard of Reynolds v. Sims if the use of multi-member districts and the use of registered voters as the apportionment base did not offend the Equal Protection Clause.10
13
In May 1965, the Governor filed a notice of appeal to this Court from certain provisions of the two orders and thereafter the participating senators and representatives also filed notices of appeal from parts of the orders.11 We noted probable jurisdiction and consolidated the appeals for argument. 382 U.S. 807, 86 S.Ct. 74, 15 L.Ed.2d 57. We set aside and vacate both orders and remand for further proceedings consistent with this opinion.
I.
14
All parties concede the invalidity of the provisions of Art. III, § 2, apportioning the senate on the basis of geography rather than population, and of the provision of Art. XV, § 2, 6, requiring a majority vote of the electorate in each of a majority of the counties to amend senatorial apportionment established by the constitution. The District Court concluded that, as a matter of state law, the house and senate apportionment plans were severable. Compare Lucas v. Forty-Fourth Colorado General Assembly, 377 U.S. 713, 735, 84 S.Ct. 1459, 1473. Even so, Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595, holds that a court in reviewing an apportionment plan must consider the scheme as a whole. Implicit in this principle is the further proposition that the body creating an apportionment plan in compliance with a judicial order should ordinarily be left free to devise proposals for apportionment on an overall basis. The Governor argues that the District Court committed 'fundamental error' in preventing the Hawaii Legislature from engaging in such delibertions, and that for that reason alone the legislative product was inevitably tinged with constitutional error.
15
We agree that, once the District Court decided to permit legislative action, it could and should have made clear to the Hawaii Legislature that it could propose modification of the house as well as the senate plan, both as to the interim apportionment to be adopted under court order and as to proposals for permanent reapportionment through constitutional amendment. That approach would have enabled the legislature to channel its efforts to permanent rather than temporary change. Indeed, the failure to invite such thoroughgoing consideration was particularly unfortunate in connection with the court's requirement in its order of March 9 that the Hawaii Legislature prepare constitutional amendments for a permanent apportionment plan. By directing that the permanent plan incorporate the interim reapportionment plan and by restricting the choices available to the legislature in adopting an interim plan, the court put significant restraints on the legislature's deliberations about permanent apportionment. It seemed not only to limit the legislature to consideration of senate apportionment but also to require that a registered voters basis be used for that apportionment. These constraints, together with the District Court's action in explicitly sustaining the constitutionality of the house apportionment in its order of February 17, may have limited the opportunities of the legislature to construct the total scheme of apportionment best suited to the State's needs.12 Our decision in Reynolds v. Sims emphasized that 'legislative reapportionment is primarily a matter for legislative consideration and determination, and that judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.' 377 U.S., at 586, 84 S.Ct., at 1394. Until this point is reached, a State's freedom of choice to devise substitutes for an apportionment plan found unconstitutional either as a whole or in part, should not be restricted beyond the clear commands of the Equal Protection Clause.
16
We are dealing here, however, only with the interim plan. The State remains free to adopt other plans for apportionment, and the present interim plan will remain in effect for no longer time than is necessary to adopt a permanent plan. The 1966 general elections are imminent, and election machinery must be put into operation before further proceedings could be completed. In this context, the question of embarrassment of state legislative deliberations may be put aside. For present purposes, H.B. 987 may be treated together with the existing house apportionment as a new, overall proposal for interim apportionment. The only question for us is whether, viewing the resulting plan in its entirety and without regard to its history, it falls short of federal constitutional standards. We conclude for reasons to be stated that H.B. No. 987 and the existing house apportionment together constitute an interim legislative apportionment which has not been shown to fall short of federal standards. We direct the District Court to enter an order appropriate to adopt the plan as the court's own for legislative apportionment applicable to the 1966 election, and thereafter until a constitutional permanent plan is adopted, constitutional deficiencies in the interim plan are shown, or another interim plan for reapportionment of the Hawaii Legislature suggested by the legislature is approved by the court.
II.
17
The April 28 opinion began analysis in terms of the interim senate apportionment plan's effect upon representation in the State's scheme of representation as a whole. The District Court was not concerned with population disparities, however, but with what it considered to be a difference in representational effectiveness between multi-member and single-members legislative districts.13 In an informal memorandum circulated among the parties in early April, the District Court had advised the legislature of its doubts concerning the validity of a multi-member senatorial districting plan, saying:
18
'We believe that the Senate should be redistricted into single senatorial districts, although we may approve two-member districts if and only if the legislature can affirmatively show substantial reasons therefor. There may very well be valid reasons for one or two 2-member districts in the neighboring islands but we perceive no justification whatsoever for other than single member districts on the Island of Oahu, particularly the heavily populated areas thereof.'
19
The opinion of April 28 clearly reveals that the court was still convinced that only single-member senatorial districting on Oahu would be appropriate. It felt, for example, that the legislature had 'built monoliths' into the districting scheme by making the boundaries of the third senatorial district and the eighth representative district one and the same, thus enabling the same constituency to elect four representatives and three senators, and by fashioning the sixth senatorial district almost entirely from the fifteenth representative district, from which six representatives and four senators would be elected. It also felt that in setting up the senatorial districts on Oahu the legislature had not taken into account 'community of interests, community of problems, socio-economic status, political and racial factors'; and, finally, that 'the legislature's adamant insistence on three and four-member senatorial districting was the conscious or unconscious—though not unnatural—reluctance of the affected senators to carve out single-member districts which thereafter would in all probability result in a political duel-to-the-death with a fellow and neighbor senator.' 240 F.Supp., at 730—731.
20
But the Equal Protection Clause does not require that at least one house of a bicameral state legislature consist of single-member legislative districts. See Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401. Where the requirements of Reynolds v. Sims are met, apportionment schemes including multi-member districts will constitute an invidious discrimination only if it can be shown that 'designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.' Id., at 439, 85 S.Ct. at 501.
21
It may be that this invidious effect can more easily be shown if, in contrast to the facts in Fortson, districts are large in relation to the total number of legislators, if districts are not appropriately subdistricted to assure distribution of legislators that are resident over the entire district, or if such districts characterize both houses of a bicameral legislature rather than one. But the demonstration that a particular multi-member scheme effects an invidious result must appear from evidence in the record. Cf. McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393. That demonstration was not made here.14 In relying on conjecture as to the effects of multi-member districting rather than demonstrated fact, the court acted in a manner more appropriate to the body responsible for drawing up the districting plan. Speculations do not supply evidence that the multi-member districting was designed to have or had the invidious effect necessary to a judgment of the unconstitutionality of the districting. Indeed, while it would have been better had the court not insisted that the legislature 'justify' its proposal, except insofar as it thus reserved to itself the ultimate decision of constitutionality vel non, the legislature did assign reasons for its choice.15 Once the District Court had decided, properly, not to impose its own senate apportionment but to allow the legislature to frame one, such judgments were exclusively for the legislature to make. They were subject to constitutional challenge only upon a demonstration that the interim apportionment, although made on a proper population basis, was designed to or would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.16
III.
22
The dispute over use of distribution according to registered voters as a basis for Hawaiian apportionment arises because of the sizable differences in results produced by that distribution in contrast to that produced by the distribution according to the State's total population, as measured by the federal census figures. In 1960 Oahu's share of Hawaii's total population was 79%. Its share of persons actually registered was 73%. On the basis of total population, Oahu would be assigned 40 members of the 51-member house of representatives; on the basis of registered voters it would be entitled to 37 representatives.17 Probably because of uneven distribution of military residents—largely unregistered—the differences among various districts on Oahu are even more striking. For example, on a total population basis, Oahu's ninth and tenth representative districts would be entitled to 11 representatives, and the fifteenth and sixteenth representative districts would be entitled to eight. On a registered voter basis, however, the ninth and tenth districts claim only six representatives and the fifteenth and sixteenth districts are entitled to 10.18
23
The holding in Reynolds v. Sims, as we characterized it in the other cases decided on the same day, is that 'both houses of a bicameral state legislature must be apportioned substantially on a population basis.'19 We start with the proposition that the Equal Protection Clause does not require the States to use total population figures derived from the federal census as the standard by which this substantial population equivalency is to be measured. Although total population figures were in fact the basis of comparison in that case and most of the others decided that day, our discussion carefully left open the question what population was being referred to. At several points, we discussed substantial equivalence in terms of voter population or citizen population, making no distinction between the acceptability of such a test and a test based on total population.20 Indeed, in WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568, decided the same day, we treated an apportionment based upon United States citizen population as presenting problems no different from apportionments using a total population measure. Neither in Reynolds v. Sims nor in any other decision has this Court suggested that the States are required to include aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured.21 The decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere. Unless a choice is one the Constitution forbids, cf., e.g., Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675, the resulting apportionment base offends no constitutional bar, and compliance with the rule established in Reynolds v. Sims is to be measured thereby.
24
Use of a registered voter or actual voter basis presents an additional problem. Such a basis depends not only upon criteria such as govern state citizenship, but also upon the extent of political activity of those eligible to register and vote. Each is thus susceptible to improper influences by which those in political power might be able to perpetuate underrepresentation of groups constitutionally entitled to participate in the electoral process, or perpetuate a 'ghost of prior malapportionment.'22 Moreover, 'fluctuations in the number of registered voters in a given election may be sudden and substantial, caused by such fortuitous factors as a peculiarly controversial election issue, a particularly popular candidate, or even weather conditions.' Ellis v. Mayor & City Council of Baltimore, 352 F.2d 123, 130 (C.A.4th Cir. 1965).23 Such effects must be particularly a matter of concern where, as in the case of Hawaii apportionment, registration figures derived from a single election are made controlling for as long as 10 years. In view of these considerations, we hold that the present apportionment satisfies the Equal Protection Clause only because on this record it was found to have produced a distribution of legislators not substantially different from that which would have resulted from the use of a permissible population basis.
25
As the District Court noted, the 1950 constitutional convention discussed three possible measures, total population, state citizen population, and number of registered voters, in considering how the State House of Representatives should be apportioned. Apportionment under the Organic Act had been on the basis of citizen population; this had proved difficult to administer because statistics were not readily available. Total population was disfavored because the census tracts, by which it is determined and reported, did not necessarily comport with traditional local boundaries. Registered voters was chosen as a reasonable approximation of both citizen and total population readily determinable, conveniently broken down by election district, and a measure which, as against total population, somewhat favored the other islands over Oahu. It is fair to say that the convention report reflected that citizen population as much as total population was the basis against which a registered voters standard was compared.
26
Hawaii's special population problems might well have led it to conclude that state citizen population rather than total population should be the basis for comparison. The District Court referred to the continuing presence in Hawaii of large numbers of the military: 'Hawaii has become the United States' military bastion for the entire Pacific and the military population in the State fluctuates violently as the Asiatic spots of trouble arise and disappear. If total population were to be the only acceptable criterion upon which legislative representation could be based, in Hawaii, grossly absurd and disastrous results would flow * * *.' 238 F.Supp., at 474.24 Similarly, the court referred to the distortion in census figures attributable to 'the large number of tourists who continually flow in and out of the State and who * * * for census purposes are initially at least, counted as part of Hawaii's census population * * *.' Id., at 475. (Footnote omitted.) Both the tourists and the military tend to be highly concentrated on Oahu and, indeed, are largely confined to particular regions of that island. Total population figures may thus constitute a substantially distorted reflection of the distribution of state citizenry. If so, a finding that registered voters distribution does not approximate total population distribution is insufficient to establish constitutional deficiency. It is enough if it appears that the distribution of registered voters approximates distribution of state citizens or another permissible population base.
27
Because state citizen population figures are hard to obtain or extrapolate, a comparison of the results which would be obtained by use of such figures with the results obtained by using registered voter figures is difficult. But the District Court found that military population of Oahu, and its distribution over that island, was sufficient to explain the already noted differences between total population and registered voters apportionments, both as among Hawaii's four counties and as among Oahu's representative districts. The District Court noted 'that there is nothing in the State Constitution or the Hawaii statutes which per se excludes members of the armed forces from establishing their residence in Hawaii and thereafter becoming eligible to vote. This court finds no scheme in Hawaii's Constitution or in the statutes implementing the exercise of franchise which is aimed at disenfranchising the military or any other group of citizens.' 238 F.Supp., at 475. No issue was raised in the proceedings before it that military men had been excluded improperly from the apportionment base.25 Moreover, the District Court stressed that Hawaii's Constitution and laws actively encourage voter registration. A high proportion of the possible voting population is registered,26 and 'strong drives to bring out the vote have resulted in a vote of from 88 to 93.6% of all registered voters during the elections of 1958, 1959, 1960 and 1962.' Id., at 476 (footnote omitted). In these circumstances, we find no demonstrated error in the District Court's conclusion that the apportionment achieved by use of a registered voters basis substantially approximated that which would have appeared had state citizen population been the guide.
28
We are not to be understood as deciding that the validity of the registered voters basis as a measure has been established for all time or circumstances, in Hawaii or elsewhere. The District Court was careful to disclaim any holding that it was a 'perfect basis.' We agree. It may well be that reapportionment more frequently than every 10 years, perhaps every four or eight years, would better avoid the hazards of its use. Use of presidential election year figures might both assure a high level of participation and reduce the likelihood that varying degrees of local interest in the outcome of the election would produce different patterns of political activity over the State. Other measures, such as a system of permanent personal registration, might also contribute to the stability and accuracy of the registered voters figure as an apportionment basis. Future litigation may reveal infirmities, temporary or permanent, not established by the present record.27 We hold that, with a view to its interim use, Hawaii's registered voter basis does not on this record fall short of constitutional standards.
IV.
29
Our conclusion that the interim apportionment should apply to the 1966 election requires that the provisions of the order of February 17 mandating an immediate special election on the question of calling a constitutional convention should remain inoperative. The imminence of the 1966 elections precludes any further action pending that event. But the question remains what role the District Court has in bringing about a permanent reapportionment as promptly as reasonably may be after that election. We believe it should retain jurisdiction of the case to take such further proceedings as may be appropriate in the event a permanent reapportionment is not made effective. We note that the electorate will vote at the 1966 election on the question whether a constitutional convention should be convened. We see no reason, however, why the newly elected legislature should either be compelled to propose amendments or be precluded from proposing them. The legislature will doubtless find reason enough to act in the fact that the District Court will retain jurisdiction over the cause to take any action that may be appropriate pending the adoption of a permanent reapportionment which complies with constitutional standards. Such action may include further inquiry into the constitutionality of the present plan in its operation, consideration of substitute interim plans for apportioning the house and senate that might be submitted by the legislature in the event of failure of proposals for constitutional amendment, or judicial apportionment if the present plan is shown to be constitutionally deficient and no acceptable substitute is forthcoming.
30
The District Court is accordingly directed on remand to enter an appropriate order (1) adopting H.B. No. 987 and the existing house apportionment as an interim legislative apportionment for Hawaii and (2) retaining jurisdiction of the cause for all purposes.
31
Our judgment shall issue forthwith.
32
Vacated and remanded.
33
Mr. Justice FORTAS took no part in the consideration or decision of this case.
34
Mr. Justice HARLAN, concurring in the result.
35
Because judicial responsibility requires me, as I see things, to bow to the authority of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, despite my original and continuing belief that the decision was constitutionally wrong (see my dissenting opinion, 377 U.S., at 589 et seq., 84 S.Ct., at 1395), I feel compelled to concur in the Court's disposition of this case. Even under Reynolds, however, I cannot agree with the rationale, elaborated in Part III of the Court's opinion, by which Hawaii's registered voter base is sustained. As I read today's opinion, registered voter figures are an acceptable basis for apportionment only so long as they substantially approximate the results that would be reached under some other type of population-based scheme of apportionment.
36
Many difficult questions of judgment, relating both to policy and to administrative convenience, must be resolved by a State in determining what statistics to use in establishing its apportionment plan. I would not read Reynolds as precluding a State from apportioning its legislature on any rational basis consistent with Reynolds' philosophy that 'people,' not other interests, must be the basis of state legislative apportionment. I think apportionment on the basis of registered voters is a rational system of this type, and that it is therefore permissible under Reynolds regardless of whether in the particular case it approximates some other kind of a population apportionment.
37
Mr. Justice STEWART, concurring in the judgment.
38
At the time Reynolds v. Sims was decided, I expressed the belief that 'the Equal Protection Clause demands but two basic attributes of any plan of state legislative apportionment. First, it demands that, in the light of the State's own characteristics and needs, the plan must be a rational one. Secondly, it demands that the plan must be such as not to permit the systematic frustration of the will of a majority of the electorate of the State.' Lucas v. Forty-Fourth Colorado General Assembly, 377 U.S. 713, at pp. 753—754, 84 S.Ct. 1459, at p. 1483 (dissenting opinion).
39
Time has not changed my views. I still believe the Court misconceived the requirements of the Equal Protection Clause in Reynolds v. Sims and its companion cases. But so long as those cases remain the law, I must bow to them. And even under those decisions there is surely room for at least as much flexibility as the Court today accords to Hawaii. Accordingly, I concur in the judgment.
1
WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568; Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595; Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609; Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620; and Lucas v. Forty-Fourth Colorado General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632.
2
Kalawao, a Hansen's disease treatment 79% of the State's population lived there. purposes. However, its residents are considered part of Maui County for political purposes, and vote in that county for state legislators. We therefore treat only the four major counties, or basic areas, in this opinion. The State's 1960 population of 632,772 was divided among these four counties as follows: City and County of Honolulu, 500,409; Hawaii County, 61,332; Maui County, 42,855; and Kauai County, 28,176. The population of the small, outlying islands other than Oahu which comprise the City and County of Honolulu is negligible. We therefore refer to that county hereafter as Oahu.
3
The District Court found that 'this proviso was specifically inserted in order to freeze representation in the senate, and it gave to the rural counties what amounted to the right of veto over any attempt to change the representative makeup of the senate.' 238 F.Supp. 468, 472.
4
Hawaii uses the method of equal proportions to distribute legislators, first among the four counties and then among the districts within each county. This is the same method as used in apportioning the members of the House of Representatives of the United States Congress. Complex mathematically, it determines a priority order in which legislators are to be assigned among various competing districts. The system is discussed in Schmeckebier, The Method of Equal Proportions, 17 Law & Contemp.Prob. 302 (1952). Use of this method will not necessarily result in a constitutional apportionment. It is the distribution of legislators rather than the method of distributing legislators that must satisfy the demands of the Equal Protection Clause. No claim is made, however, that the effect of applying the method in Hawaii in this case was to deny any person equal protection of the laws by creating representative districts substantially unequal in size.
5
The court doubted whether the legislature itself had authority under state law to adopt an interim apportionment plan, in view of the decision in Guntert v. Richardson, supra. The Hawaii Constitution authorizes the legislature to propose constitutional amendments to the electorate either upon passage by a two-thirds vote of both houses of the legislature or upon passage by a majority vote of both housesin each of two successive legislative sessions. The Hawaii Constitution also authorizes the legislature to submit to the people the question of calling a constitutional convention, either at a general election or at a special election called for that purpose. Hawaii Const., Art. XV, § 3.
6
Paragraph 4 of the court's order provided:
'4. This court will not interfere with the convening or conducting of the business of the Third State Legislature in regular session in 1965, save and except that the parties herein are hereby enjoined from taking final action upon any legislation, except such actions as are necessary to organize the respective houses at such session and appropriate funds for the session, until legislation, pursuant to the provision of Article XV of said Constitution providing for the submission to the people of Hawaii, by special election to be held not later than August 1, 1965, the question: 'Shall there be a convention to propose a revision of or amendments to the Constitution?', and for any and all acts required by law to implement such legislation, has been enaced into law. Such legislation shall also provide that if the vote be in the constitutional affirmative, then a special election shall be held not later than September 15, 1965 to elect delegates to the convention in the manner provided in the Constitution. Such legislation may include legislative action under Article XV, Section 2, 4th paragraph, of the Constitution. Such legislation shall further provide that the convention convene not later than October 15, 1965 and that it conclude its deliberation in time to submit its proposed constitutional amendments to the electorate of Hawaii at a special election to be held not later than January 30, 1966, including (but not limiting the convention thereto) provisions therein for reapportioning the Senate of Hawaii on a constitutionally valid basis. Such legislation shall also appropriate and make available funds for the expenses of such elections and convention.' 238 F.Supp. at 479.
7
H.B. 986, 1 Hawaii Sess.Laws 1965, Act 280, provides for submission to the electorate in the 1966 general election of the question whether a constitutional convention should be called. H.B. 773, 1 Hawaii Sess.Laws 1965, p. 483, proposing a constitutional amendment in the same form as the interim plan, was passed by only a majority vote in the senate and hence must be acted on again before it can be submited to the people for adoption or rejection. See n. 5, supra. In view of the constraints placed on the legislature in adopting this proposal, we think the District Court on remand should make no attempt to require any further action on this measure. See Part I, infra.
8
The method of equal proportions was to be used for apportioning the senate as well as the house. See n. 4, supra.
9
On May 21, 1965, Mr. Justice Douglas stayed this action pending our determination of these appeals.
10
We are not to be understood as agreeing with the District Court, insofar as it may have rested its decision on the view that use of the method of equal proportions itself saved the plan from constitutional challenge based on Reynolds v. Sims, 240 F.Supp., at 727. See n. 4, supra.
11
These notices were timely filed. The February 17 opinion was not formally entered until April 9, 1965. The second decision was dated and entered April 28, 1965. Notices of appeal were filed May 3 and 7, 1965. Whether judged by the date of entry, United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290; Fed.Rule Civ.Proc. 58, or by the fact that the order incorporated in the decision of February 17 was not finally made effective until the decision of April 28, United States v. Crescent Amusement Co., 323 U.S. 173, 177, 65 S.Ct. 254, 256, 89 L.Ed. 160, the appeals from the decision announced February 17 were timely. 28 U.S.C. § 2101(b) (1964 ed.).
12
We have not overlooked the fact that the limitations were suggested by the legislators themselves. Nevertheless, consistently with Maryland Committee for Fair Representation v. Tawes, the District Court should have indicated to the legislators that they possessed the same broad scope of inquiry as the court had said in its opinion of February 17 was open to a constitutional convention. It had suggested there that there might be appropriately considered by the convention:
'1. Whether (Hawaii) will continue to use registered voters as the apportionment basis, or change it to State citizen population eligible to vote (i.e., voter population), or citizen population, or total population.
'2. Whether it is better to have one or both houses of the legislature composed of single member representative districts, or to have and justify one or both houses composed in whole or in part, of multi-member or floterial districts.
'3. Whether decennial reapportionment of either or both houses should be made on or before June 1st of the year preceding the Federal census—as is now the case—or on a date soon after the taking of such census.
'4. Whether the representative district lines should remain substantially as they now are or whether ultimately (i.e., after 1970) there should be redistricting in such a manner that the census tracts and representative districts can be coordinated for the statistical purposes necessary to implement the changes (if any) made in the basis of reapportionment.' 238 F.Supp., at 478.
13
'In reapportioning and redistricting the senate, both houses overlooked the fact that, to be valid, the makeup of the senate must positively complement the makeup of the house, to provide the vital equality of voter representation. Both houses of the legislature seemingly forgot that the schemes of districting each house, when conjoined, must offer compensating advantages to the voters—not only to those voters within each representative district, be it senate or house, but to all voters throughout the State. While there perforce must be some overlap of representation with the several senate and house districts, that overlap must not be such as to concentrate and intensify the voting power of a single senatorial-representative district to the point that the voters therein have a built-in disproportionate representational advantage over any other voters of the State.' 240 F.Supp., at 729.
14
Appellant Burns concedes in his brief that '(i)n the case of the Hawaii House multimember districts, extensive proofs were not put in as to the details of the submergence of minorities.' There may, for example, be merit in the argument that by encouraging block voting multimember districts, diminish the opportunity of a minority party to win seats. But such effects must be demonstrated by evidence.
15
As stated in the court's opinion, the legislature's proffered justifications were:
'(1) single-member districts would tend to cause the senators therefrom to be concerned with localized issues and ignore the broader issues facing the State, and therefore it might fragment the approach to state-wide problems and programs to the detriment of the State; (2) historically the members of the house had represented smaller constituencies than members of the senate, and tradition and experience had proved the balance desirable; (3) multimember districts would increase the significance of an individual's vote by focusing his attention on the broad spectrum of major community problems as opposed to those of more limited and local concern; (4) to set up single-member districts would compound the more technical and more intricate problem of drawing the boundaries; (5) population shifts would more drastically affect the boundaries of many smaller single-member districts—to a greater degree than would be found in larger multi-member districts, citing Oahu's population boom and subdivision development.' 240 F.Supp., at 727.
16
We reject the suggestion that the districts are arbitrarily or invidiously defined. The fact that district boundaries may have been drawn in a way that minimizes the number of contests between present incumbents does not in and of itself establish invidiousness. And we find no support for this suggestion in the present wide variances in size among the Oahu representative districts. This distribution is governed by the population shifts which have occurred since the district boundaries were first defined. In the initial apportionment, the six representative districts comprising the fifth senatorial district each contained two or three representatives—two in the geographically large, relatively rural districts and three in urban districts. The four representative districts comprising the fourth senatorial district contained three to six representatives; these districts comprised the heart of residential Honolulu, and were understandably compact. Whether one surmises that the drafters were leaving room for expansion in the less populous districts or drawing district lines as a function of size as well as population, no irrationality appears from the distribution. It is relevant to note that the Hawaii Legislature was dominated by multi-member districts in both houses before statehood. This feature thus did not originate with the senate plan here under consideration.
17
This figure is calculated using 1960 figures; in the apportionment of 1959 Oahu was assigned 36 representatives, on the basis of 1958 registration figures.
18
Thus, in 1960, the ninth and tenth districts contained 28% of Oahu's population but only 17% of its registered voters; the fifteenth and sixteenth districts, with only 21% of island population contained 29% of island registered voters.
19
E.g., WMCA, Inc. v. Lomenzo, 377 U.S., at 653, 84 S.Ct., at 1428; Maryland Committee for Fair Representation v. Tawes, 377 U.S., at 674, 84 S.Ct., at 1439.
20
Thus we spoke of '(t)he right of a citizen to equal representation and to have his vote weighted equally with those of all other citizens * * *.' Reynolds v. Sims, 377 U.S., at 576, 84 S.Ct., at 1389. We also said: '(I)t is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters.' Id., at 577, 84 S.Ct., at 1390. '(T)he overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.' Id., at 579, 84 S.Ct., at 1390.
21
In Davis v. Mann, 377 U.S., at 691, 84 S.Ct., at 1448, we rejected an argument that underrepresentation of three political subdivisions in Virginia was 'constitutionally justifiable since it allegedly resulted in part from the fact that those areas contain large numbers of military and military-related personnel. Discrimination against a class of individuals, merely because of the nature of their employment, without more being shown, is constitutionally impermissible. See also Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675. Where the exclusion is of those not meeting a State's residence requirements, however, different principles apply. The difference between exclusion of all military and military-related personnel, and exclusion of those not meeting a State's residence requirements is a difference between an arbitrary and a constitutionally permissible classification.
22
Buckley v. Hoff, 243 F.Supp. 873, 876 (D.C.Vt.1965).
23
Ellis disapproved a registered voters basis for apportioning the governing council of Baltimore, Maryland. The Court of Appeals held that this basis was permissible only if it yielded results substantially approximating those obtained by use of a total population base.
24
For example, at one point during World War II, the military population of Oahu constituted about one-half the population of the Territory. If total population were used in such a situation, the permanent residents living in districts including military bases might have substantially greater voting power than the electors of districts not including such bases. Indeed, in view of this possibility, appellant Burns concedes that a 'nontransient' figure as well as total population might be used for apportionment purposes.
25
Appellant Burns urges here that the apportionment base for the house, registered voter figures from the 1958 general election, is infected by such an exclusion. Hawaii was then a Territory, and registration was governed by 48 U.S.C. § 619 (1958 ed.), which provided: 'No person shall be allowed to vote who is in the Territory by reason of being in the Army or Navy or by reason of being attached to troops in the service of the United States.' Such a restriction, if imposed by a State, would violate the Equal Protection Clause. Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675. The statute no longer applies, but its effect persists in the house apportionment. The number of registered voters in the districts where Oahu's major military bases are located has increased twice as much as registration in the other Oahu districts and more than three times as much as state population since 1958. Reapportionment of the house now on a registered voters basis would work a substantial realignment of the State's representative districts. If it can be shown that this is so principally because military men now have a vote they were once denied, rather than because of simple population shifts, an immediate interim adjustment of house apportionment might be merited. Time does not permit the necessary hearings to be had before the 1966 elections, but requiring such hearings is certainly within the court's authority under its continuing jurisdiction thereafter.
26
The District Court found the figure to be 87.1%. Even if an asserted error in statistics is corrected, the figure exceeds 80%.
27
Note 25, supra. An attempt was made to show that registration percentages among low-income residents of Oahu were substantially lower than among other resident groups. It is unclear to what extent these statistics reflect mailitary pay scales. Thus, they may be an unfair representation of state citizen registration patterns. Moreover, no substantial effect in submerging the political voice of this group appears. Of course, this issue may be re-examined should further hearings be held in exercise of the court's continuing jurisdiction.
| 12
|
384 U.S. 63
86 S.Ct. 1301
16 L.Ed.2d 369
Floyd A. WALLIS, Petitioner,v.PAN AMERICAN PETROLEUM CORPORATION et al.
No. 341.
Argued Feb. 23 and 24, 1966.
Decided April 25, 1966.
C. Ellis Henican, New Orleans, La., for petitioner.
E. L. Brunini, Jackson, Miss., and Lloyd J. Cobb, New Orleans, La., for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This case presents a question concerning 'federal common law' best explained after a summary of the facts and the legal proceedings involved.
2
At stake in the litigation are rights in several tracts, aggregating 827 acres, of oil-rich 'mud lumps' or islands owned by the United States and located in a mouth of the Mississippi River near Burrwood, Louisiana.1 In 1954 petitioner, Floyd Wallis, filed with the Secretary of the Interior applications for a lease to exploit oil and gas deposits in the tracts. Because the tracts were deemed by Wallis to be 'acquired lands' of the United States rather than 'public domain lands,' these applications were filed under the Mineral Leasing Act for Acquired Lands, which governs the former, instead of the Mineral Leasing Act of 1920, which controls the latter.2 Subsequently, Wallis entered into a written joint venture agreement with respondent .patrick McKenna giving McKenna a one-third interest in the pending applications and any lease issued under those applications. Then Wallis, who had exclusive management of the property under his agreement with McKenna, sold respondent Pan American Petroleum Corporation an option to acquire any lease Wallis might obtain under the applications then on file with the Secretary.
3
In 1956, fearing that the tracts might prove to be public domain land, Wallis filed new applications for the same tracts under the Mineral Leasing Act of 1920.3 Thereafter the tracts were ruled to be public domain land, the conflicting applications of one or more competitors were rejected, and in 1958 the Secretary issued a lease of the tracts to Wallis under the 1920 Act. See Morgan v. Udall, 113 U.S.App.D.C. 192, 306 F.2d 799. After the lease was issued to Wallis, McKenna brought a diversity action against him in Federal District Court in Louisiana seeking to be declared a one-third owner of the lease by virtue of the original joint venture agreement. Pan American also brought a diversity action in the same court to oblige Wallis to perform the option agreement by transferring the lease to Pan American.
4
The actions were consolidated, and following a nonjury trial the District Court held that neither McKenna nor Pan American was entitled to any interest in the disputed lease. 200 F.Supp. 468. The trial judge ruled that Louisiana law governed the rights of the parties and required a written agreement to create or transfer any interest in a mineral lease, thus excluding oral agreements as a basis for relief in this case. The judge then decided that the written agreements available to McKenna and Pan American contemplated they would share only in leases obtained by Wallis under the Mineral Leasing Act for Acquired Lands and not in any leases granted him under any other law. The court's judgment in favor of Wallis on the question of lease ownership reserved to McKenna and Pan American whatever rights they might have to damages, restitution, or like remedies based on oral agreements or other conduct.
5
Over a dissent, the Court of Appeals for the Fifth Circuit reversed, filing an initial opinion, 344 F.2d 432, and after petitions for rehearing, a further opinion adhering to its earlier result, 344 F.2d 439. The court decided only that the trial judge had erred in applying Louisiana law to the controversy and it remanded for a new trial in which 'applicable principles of federal law' would control the issues. 344 F.2d, at 437, 442. In its latter opinion the Court of Appeals reasoned that the Mineral Leasing Act of 1920 imposed pervasive federal regulation and that the Act's policies and the federal interest would be impaired if Louisiana law were to thwart the transfer of these federally granted leases. The opinion acknowledged an apparent conflict with the Tenth Circuit's decision in Blackner v. McDermott, 176 F.2d 498.4 We granted certiorari and invited the views of the United States, 382 U.S. 810, 86 S.Ct. 80, 15 L.Ed.2d 59, which filed a brief amicus curiae. We now reverse the Court of Appeals.
6
The question before us is whether in general federal or state law should govern the dealings of private parties in an oil and gas lease validly issued under the Mineral Leasing Act of 1920.5 Several related matters in the case should be distinguished and laid aside at the outset.
7
First, we are not concerned with whether under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, the Federal District Court might have diverged from state practice on the relevant issues of statute of frauds, parol evidence, estoppel, trust remedies, and so forth, on the ground that they were no more than 'procedural' rules or fell under some similar rubric. See generally Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8. Respondents do not argue that these rules are merely 'housekeeping' matters on which state and federal courts may ordinarily differ but rather that the federal interest in government-granted mineral leases requires supplanting Louisiana law, in which event the federal rule would normally govern any such case whether in state or federal court. See Dice v. Akron, C. & Y.R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398. Second, apart from a pre-empting federal interest, we do not consider suggestions that some law other than Louisiana's should govern because the land at issue may be outside the legal boundaries of the State and transactions between the parties may have occurred elsewhere. The District Court sitting in Louisiana obviously assumed that the State as a choice of law matter would apply its own law to the questions. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. If any challenge was offered on this point below, it has not yet been passed on by the Court of Appeals. Third, whether on the merits the trial court correctly interpreted and implemented Louisiana law is not before us; presumably that issue was presented to the Court of Appeals but not resolved because of its decision that federal law should apply.
8
We focus now on the central question in the case. In deciding whether rules of federal common law should be fashioned, normally the guiding principle is that a significant conflict between some federal policy or interest and the use of state law in the premises must first be specifically shown. It is by no means enough that, as we may assume, Congress could under the Constitution readily enact a complete code of law governing transactions in federal mineral leases among private parties. Whether latent federal power should be exercised to displace state law is primarily a decision for Congress. Even where there is related federal legislation in an area, as is true in this instance, it must be remembered that 'Congress acts * * * against the background of the total corpus juris of the states * * *.' Hart & Wechsler, the Federal Courts and the Federal System 435 (1953). Because we find no significant threat to any identifiable federal policy or interest, we do not press on to consider other questions relevant to invoking federal common law, such as the strength of the state interest in having its own rules govern, cf. United States v. Yazell, 382 U.S. 341, 351—353, 86 S.Ct. 500, 506 507, 15 L.Ed.2d 404, the feasibility of creating a judicial substitute, cf. U.A.W. v. Hoosier Cardinal Corp., 383 U.S. 696, 701, 86 S.Ct. 1107, 1111, and other similar factors.
9
If there is a federal statute dealing with the general subject, it is a prime repository of federal policy and a starting point for federal common law. See Deitrick v. Greaney, 309 U.S. 190, 60 S.Ct. 480, 84 L.Ed. 694; Reitmeister v. Reitmeister, 2 Cir., 162 F.2d 691. We find nothing in the Mineral Leasing Act of 1920 expressing policies inconsistent with state law in the area that concerns us here. In providing for development of public domain lands containing minerals, the Act comprehensively regulates various aspects of the process. For example, it governs issuance of leases among competing applicants, e.g., § 17(b), (c), 30 U.S.C. § 226(b), (c); it controls in some measure the actual use of the leased tract, to promote goals such as conservation and safety, e.g., § 30, 30 U.S.C. § 187; and it deals with rent and royalty payments to be made to the Government, e.g., § 17(d), 30 U.S.C. § 226(d). Few provisions lend themselves at all to the creation of a federal law of the rights inter se of private parties dealing in the leases.
10
Perhaps most prominent among those that are relevant is § 30a, 30 U.S.C. § 187a, which provides that oil and gas leases shall be assignable.6 The Court of Appeals' opinion relied on this provision, together with reasons why assignment of leases may promote federal policy, in justifying the use of federal rather than state law. However, fitting this approach may be where a State interposes unreasonable conditions on assignability, it can have no force in this instance because Louisiana concededly provides a quite feasible route for transferring any mineral lease or contracting to do so, namely, by written instrument. See 200 F.Supp., at 471 and n. 13. Section 27(d)(2), 30 U.S.C. § 184(d)(2), also bears directly on the rights of the parties between themselves by rendering unenforcible any option not filed with the Secretary and any option running for more than three years without prior approval of the Secretary; however, this section enacts a pair of narrow, self-sufficient statutory defenses, which is no reason for creating at large a federal common law of federal mineral lease contracts among private interests.
11
Nor is respondents' position aided by the provisions fixing qualifications for lessees to the extent of curtailing alien ownership and limiting any lessee or option holder to a maximum number of acres.7 The Secretary, who must approve all assignments before the lease obligations or record titles are shifted finally, is entirely free to disapprove assignees however valid their assignments may otherwise be.8 Finally, it is said that because the leases are issued by the United States and concern federal lands, there is a federal interest in having private disputes over them justly resolved. Apart from the highly abstract nature of this interest, there has been no showing that state law is not adequate to achieve it.
12
A concluding word must be said about precedents in this Court, which have been copiously cited in this litigation. The Court of Appeals in its initial opinion and at least one of the respondents in his brief have sought support in the general principle, repeated in a number of our cases, that the transfer of property by the United States to a private party is governed by federal law and only subsequent transfers among private parties are subject to state law. E.g., Wilcox v. Jackson ex dem. McConnel, 13 Pet. 498, 517, 10 L.Ed. 264; Buchser v. Buchser, 231 U.S. 157, 34 S.Ct. 46, 58 L.Ed. 166. Notwithstanding the unchallenged grant of the lease to Wallis, it is apparently argued that this conveyed title subject to outstanding equities in favor of respondents and that federal law retains its initial hold on the lease until existing equities are resolved. The important case cited by respondents and the Court of Appeals for this approach, which would presumably confine federal law to governing equitable obligations of the lessee arising prior to his receipt of the lease, is Irvine v. Marshall, 20 How. 558, 15 L.Ed. 994. In that case an agent who had purchased land in his own name on behalf of two principals refused to convey one of the principals his interest; although local law aimed to discourage undisclosed purchases by proxy by refusing to enforce such equitable claims, this Court held that federal law displaced local law and ordered that a trust be recognized.
13
We take the decision in Irvine to rest on its most precise explanation: that enforcement of the equitable claim was required because the local rule discouraged purchasing through agents and so threatened to hamper the Federal Government in selling its land. 20 How., at 562. While this appraisal of the interests may be debatable, the use of federal law beyond the stage of the initial grant was explained by a specific federal interest found to conflict with local law. That no conflict exists in the present case has already been demonstrated. Other cases cited to us of federal equity courts resolving private disputes over government-granted property seem quite distinguishable, for example, because there was no asserted conflict with local law, Massie v. Watts, 6 Cranch. 148, 3 L.Ed. 181, or because a government grant itself was flawed in some manner, see Widdicombe v. Childers, 124 U.S. 400, 8 S.Ct. 517, 31 L.Ed. 427.
14
Having concluded that federal law should not govern the present controversy, we vacate the judgment of the Court of Appeals and remand the case to that court so that it may consider any other contentions respondents may have urged, including their claim that they should prevail under Louisiana law.
15
Vacated and remanded.
16
Mr. Justice BLACK, substantially agreeing with the majority opinions of the Court of Appeals, would affirm its judgment.
1
Louisiana is said to have challenged the title of the United States in another suit, see McKenna v. Wallis, D.C., 200 F.Supp. 468, 470, n. 2, but in this case the parties accept the premise of federal ownership.
2
The Mineral Leasing Act for Acquired Lands is 61 Stat. 913, 30 U.S.C. §§ 351—359 (1964 ed.); the Mineral Leasing Act of 1920 is 41 Stat. 437, as amended, 30 U.S.C. § 181 et seq. (1964 ed.). While the precise distinction is of no concern here, in general acquired lands are those granted or sold to the United States by a State or citizen and public domain lands were usually never in state or private ownership.
3
It appears that applications filed under the wrong Act are treated as ineffective, 200 F.Supp., at 471 and n. 10; see 43 CFR § 3212.1(b) (1965), but that filing separate applications under each Act for the same land is allowed.
4
See also other arguably conflicting decisions in the Fifth, Ninth, and Tenth Circuits collected in 40 Tulane L.Rev. 195, 199, nn. 18—20.
5
How possible federal rules would differ from those used by Louisiana has not been specified precisely. The Court of Appeals intimated that the devices of resulting and constructive trusts, said not to be recognized in Louisiana, might be available under federal law and useful to respondents. It may be thought that federal law would not embody a statute of frauds so oral understandings could be proved. In this instance, we believe the question of applicability of state versus federal law can be decided without further refinement of the issue.
6
Other provisions that have something to do with transfer of lease rights are ones providing for surrender of leases to the Secretary, § 30, 30 U.S.C. § 187; for a time period in which persons may dispose of leases illegally held but involuntarily acquired, § 27(g), 30 U.S.C. § 184(g); and for protecting the rights of bona fide purchasers if the Secretary seeks to cancel a lease for violations of the Act, § 27(h), 30 U.S.C. § 184(h). Nowhere is it suggested how use of Louisiana law on the questions before us might interfere with policies behind these sections, whose provisions basically relate to the rights of private persons vis-a-vis the Secretary.
7
§§ 1, 27(d), 30 U.S.C. §§ 181, 184(d). Conceivably, the rights of private parties among themselves might be relevant data in deciding whether these sections were violated, e.g., whether an alien 'controlled' a lease within the meaning of the statute; since the relevance would itself be decided by federal law, the federal interest is secure.
8
Section 30a, 30 U.S.C. § 187a, requires approval unless the assignee is not qualified or fails to post the required bond. Where there is a private dispute as to the validity or effect of an assignment, the Secretary does not decide the question and he will not approve the assignment or take other action until the parties settle their dispute in court. See McCulloch Oil Corp. of California, Int. Dept. Decision No. A—30208 (Nov. 25, 1964).
| 910
|
384 U.S. 102
86 S.Ct. 1311
16 L.Ed.2d 398
UNITED STATES, Petitioner,v.John CATTO, Jr. et al.
No. 535.
Argued March 22, 23, 1966.
Decided April 26, 1966.
Rehearing Denied June 6, 1966.
See 384 U.S. 981, 86 S.Ct. 1857.
Jack S. Levin, Washington, D.C., for petitioner.
Claiborne B. Gregory and Gordon G. Hawn, San Antonio, Tex., for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
The question presented in this case is whether taxpayers engaged in the livestock business who use an accrual method of accounting for animals raised for sale may employ a cash method of accounting for animals raised for breeding purposes, in order to take advantage of a federal income tax benefit available to cash-method taxpayers when breeding animals are sold.
2
The respondents are ranchers engaged in the business of raising livestock for sale. As an important element of their business, the respondents maintain herds of livestock used for breeding purposes. During the taxable years in question, the respondents sold animals from their breeding herds and reported the gains from the sales in accord with the accrual method of accounting they had elected for their overall ranching operations. Subsequently, they filed claims with the Commissioner of Internal Revenue for partial tax refunds, on the ground that they were entitled to use the more advantageous cash method of accounting in calculating the gain from sales of their breeding livestock. The Commissioner rejected the claims, and the respondents brought suit to obtain the refunds. Their claims were sustained by the District Court,1 and the judgments were affirmed by the Court of Appeals for the Fifth Circuit.2 We granted certiorari to resolve a conflict among the Circuits.3 We now reverse the judgments of the Court of Appeals.
3
Section 1231 of the Internal Revenue Code of 1954, 26 U.S.C. § 1231, (1964 ed.), provides that in certain circumstances gains from the sale of property used by a taxpayer in his trade or business may be treated for federal income tax purposes as long-term capital gains. Section 1231(b)(3) makes the section specifically applicable to sales of livestock held for breeding purposes.4 No challenge is raised here to the classification of the animals sold by the respondents as livestock held for breeding purposes within the meaning of that provision. Our sole concern is with the measure of the respondents' capital gain.
4
Each of the respondents elected the 'unit-livestock-price' variant of the accrual method of accounting for his over-all ranching operation.5 Under that method, the respondents classified their livestock inventory by age and kind and assigned a standard unit price to the animals in each class. Both breeding animals and animals raised for sale were lumped together in the respondents' inventories, and the same unit prices were employed for both types of livestock. By multiplying the number of animals in each class by the unit price for the class, the opening and closing inventory valuations were readily calculated for each taxable year.
5
The applicable Treasury Regulations grant a current deduction for the expenses incurred in raising livestock, without regard either for the purpose for which the animals are raised or for the method of accounting employed by the taxpayer.6 For ranchers who have elected the cash method of accounting, the current deduction is of course taken against ordinary income in the year the expense is paid. Since, as a result, the adjusted basis of the breeding animals at the time of sale is zero, the entire proceeds of the sales are reported as capital gains.
6
Because of the mechanics of the accrual method of accounting used by the respondents, however, their current deductions for the expenses of raising their livestock were offset by the annual increments in the unit inventory values of the animals not sold during the taxable year.7 The adjusted basis of the animals sold was therefore equal to the accumulated increments in their unit values, and only the proceeds of sale in excess of that basis were reported by the respondents as capital gain.8 Although the respondents' capital gain was lower than the gain they would have reported had they used the cash method of accounting, the reduction was achieved at the cost of annulling the current deduction from ordinary income of the expenses of raising their breeding livestock. As a result, the respondents' overall tax on their gains from the sale of breeding livestock was larger than it would have been had they used the cash method of accounting with respect to those animals.9 The Court of Appeals held in the present case that the respondents were not required to use the accrual method of accounting for their breeding livestock, and that they were therefore entitled to report the gains from the sales of those animals in accordance with the more advantageous cash method.10 We think the Court of Appeals was in error.
7
The respondents' principal contention is that breeding livestock are simply not the type of asset that is properly includible in inventory. Just as manufacturers do not put capital equipment in inventory, so, respondents claim, they need not place their breeding livestock in inventory. Therefore, they say, the method of deferral of expenses worked for inventory-type assets by the mechanics of accrual accounting under Treas. Reg. (hereafter Reg.) § 1.61—4(b)11 is completely inapplicable to such livestock, because the animals should never have been placed in inventory in the first place. The result of freeing breeding livestock from the accounting procedure of Reg. § 1.61—4(b) would be to enable the respondents to obtain the benefits of the cash method, since the current deduction under Reg. § 1.162—12 would no longer be offset by the annual increments in the unit values of their breeding livestock.
8
Although the contention of the respondents is not without force, we believe that the evolution of the statute and regulations here in question demonstrates that the expenses of raising breeding livestock were intended to be deferred by accrual-method taxpayers. That interpretation of the legislative and administrative history is fully consonant with accounting logic, and we therefore conclude that the Commissioner should prevail.
9
The general and long-standing rule for all taxpayers, whether they use the cash or accrual method of accounting, is that costs incurred in the acquisition, production, or development of capital assets, inventory, and other property used in the trade or business may not be currently deducted, but must be deferred until the year of sale, when the accumulated costs may be set off against the proceeds of the sale.12 Under general principles of accounting, therefore, it would be expected that expenses incurred by ranchers in raising breeding livestock should be charged to capital account, even though the ranchers employed the cash method of accounting.
10
As early as 1919, however, in response to the specific need for a relatively more simplified method of farm accounting than was available even under the cash method as it then existed, the Secretary of the Treasury and the Commissioner of Internal Revenue promulgated Regulations expanding the cash method to authorize a current deduction for expenses incurred by farmers and ranchers in raising crops and animals.13 Although the question does not appear to have arisen, it is hardly likely that the Commissioner would have permitted accrual-method ranchers, for whom the new procedure was not designed, selectively to apply the simplified cash method to their breeding livestock or any other part of their herds. At the time these Regulations were issued, and for more than two decades thereafter, gains from the sale of breeding livestock were taxed as ordinary income.14 Thus, the choice of accounting method affected only the timing of the deduction for the expenses of raising the animals, and no serious distortion of taxable income was introduced when ranchers elected the cash method for their breeding livestock.15 Throughout this period, no distinction appears to have been drawn between breeding and other livestock in the inventories maintained by ranchers using the more sophisticated accrual method of accounting. Indeed, since 1922, the Treasury Regulations have specifically contemplated that all livestock, whether raised for breeding or other purposes, were to be included in the inventory of accrual-method ranchers.16
11
In 1942, however, Congress added § 117(j) to the Internal Revenue Code of 1939.17 That section, the progenitor of § 1231 of the 1954 Code, established capital gain treatment for the sale of 'property used in the trade or business' of the taxpayer. The general language of the 1952 amendment left the tax status of breeding livestock in doubt, and the ensuing nine years found the Commissioner and ranchers jockeying for position on the treatment of gains from the sale of such animals.18 Congress resolved the controversy in 1951 by amending § 117(j) to make clear that capital gain treatment was to be accorded to gains from the sale of livestock raised for breeding purposes.19 Predictably, the amendment encouraged attempts by accrual-method ranchers to transfer to the cash method of accounting. The Commissioner, however, refused to permit the changes where it appeared that the sole motivation for the shift was to reap the capital gain windfall available to cash-method ranchers.20
12
The issue raised by the respondents ultimately centers on the validity of Reg. § 1.471—6(f), which requires that a 'taxpayer who elects to use the 'unit-livestock-price method' must apply it to all livestock raised, whether for sale or for * * * breeding * * * purposes.' That provision is neither arbitrary nor inconsistent with the revenue statute or with other regulations under the statute. The unit-livestock-price method is soundly grounded in accepted principles of accounting. It has been specifically recognized by the tax laws as a valid approach to livestock accounting for more than 20 years.21 Moreover, as the practice of the respondents indicates, the expenses incurred in the production and development of their livestock were essentially the same, whether the animals were raised for sale or for breeding purposes, and the unit-livestock-price method of accounting provided convenient and efficient annual estimates of those expenses. There can thus be no question that the respondents' accounting method accurately reflected their income.
13
Were we concerned, therefore, solely with the applicability to breeding livestock of the unit-livestock-price method of accounting, we would be unable to characterize as arbitrary the Commissioner's refusal to permit the change the respondents seek. Congress has granted the Commissioner broad discretion in shepherding the accounting methods used by taxpayers,22 and the uniform application of the unit-livestock-price method to the respondents' entire livestock operation is a reasonable exercise of the discretion rested by Congress in the Secretary and the Commissioner for the administration of the tax laws. 'It is not the province of the court to weigh and determine the relative merits of systems of accounting.' Brown v. Helvering, 291 U.S. 193, 204—205, 54 S.Ct. 356, 361, 78 L.Ed. 725; Lucas v. American Code Co., 280 U.S. 445, 449, 50 S.Ct. 202, 203, 74 L.Ed. 538; Automobile Club of Michigan v. Commissioner of Internal Revenue, 353 U.S. 180, 189—190, 77 S.Ct. 707, 712—713, 1 L.Ed.2d 746; Commissioner of Internal Revenue v. Hansen, 360 U.S. 446, 467, 79 S.Ct. 1270, 1281, 3 L.Ed.2d 1360; Schlude v. Commissioner of Internal Revenue, 372 U.S. 128, 133—135, 83 S.Ct. 601, 604—605, 9 L.Ed.2d 633.
14
The issue in the present case, however, is complicated by the substantial tax differential worked by the Treasury Regulations in favor of cash-method ranchers and against accrual-method ranchers when breeding livestock are sold. It is the position of the Commissioner that the Treasury Department is unable by administrative action to require cashmethod ranchers to capitalize the expenses incurred in raising their breeding livestock.23 The respondents contend that so long as the present dichotomy is maintained, they are entitled to participate in the benefits available under the cash method.
15
We need not determine whether in all cases the Commissioner may legitimately refuse to acquiesce in the transition by ranchers from the accrual method to the cash method of accounting. The Commissioner is not, of course, obliged to permit taxpayers to shift their accounting methods to accommodate every fluctuation in the revenue laws. Helvering v. Wilshire Oil Co., 308 U.S. 90, 97, 60 S.Ct. 18, 22, 84 L.Ed. 101; Commissioner of Internal Revenue v. South Texas Lumber Co., 333 U.S. 496, 68 S.Ct. 695, 92 L.Ed. 831. We may assume arguendo that particular legislative or administrative mutations in the tax laws may foster inequities so great between taxpayers similarly situated that the Commissioner could not legitimately reject a proposed change in accounting method unless the taxpayer had exercised a meaningful choice at the time he selected his contemporary method. No such substantial inequity is presented here. The respondents have not sought to embrace the cash method of accounting for their entire ranching operation. To the contrary, they ask that they be permitted to subject only their breeding livestock to that method. Thus, they propose to retain the advantages of the accrual method for their livestock raised for sale.
16
It is clear that application of the cash method of accounting to sales of breeding livestock would substantially distort the economic picture of the respondents' ranching operations.24 The sacrifice in accounting accuracy under the cash method represents an historical concession by the Secretary and the Commissioner to provide a unitary and expedient bookkeeping system for farmers and ranchers in need of a simplified accounting procedure. A concomitant of the special dispensation that has been made available to cash-method ranchers is the favorable capital gain treatment that results whenever breeding livestock are sold. The respondents, however, have demonstrated their intent to retain the accuracies of the unit-livestock-price method of accounting for animals they have raised for sale. That method was itself introduced as a special concession to accrual-method ranchers, who were thereby enabled to avoid the difficulties of establishing the actual costs of raising their livestock. The respondents' desire to shift from the unit-livestock-price accrual method to the cash method for their breeding livestock is therefore divorced from the sole rationale for which each of those accounting methods was made available. By selectively combining attributes of both methods, the respondents seek to fashion a hybrid system that would defeat the Commissioner's goal of providing a unitary accounting method for all taxpayers. It clearly lay within the discretion of the Commissioner to reject such a hybrid system of accounting, and the Court of Appeals was in error in accepting the respondents' claims. See Niles Bement Pond Co. v. United States, 281 U.S. 357, 360, 50 S.Ct. 251, 252, 74 L.Ed. 901; Commissioner of Internal Revenue v. South Texas Lumber Co., 333 U.S. 496, 503—504, 68 S.Ct. 695, 699—700; Commissioner of Internal Revenue v. Hansen, 360 U.S. 446, 467, 79 S.Ct. 1270, 1281; Little v. Commissioner of Internal Revenue, 294 F.2d 661, 664 (C.A.9th Cir.); Carter v. Commissioner of Internal Revenue, 257 F.2d 595, 600 (C.A.5th Cir.); SoRelle v. Commissioner, 22 T.C. 459, 468—469.
17
The judgments are therefore reversed and the case is remanded to the Court of Appeals for the Fifth Circuit for further proceedings consistent with this opinion.
18
It is so ordered.
19
Judgments reversed and case remanded.
1
Wardlaw v. United States, 223 F.Supp. 631 (D.C.W.D.Tex.); Catto v. United States, 223 F.Supp. 663 (D.C.W.D.Tex.).
2
United States v. Wardlaw, 344 F.2d 225; United States v. Catto, 344 F.2d 227.
3
The Court of Appeals affirmed the judgments of the District Court on the authority of its prior decision in Scofield v. Lewis, 251 F.2d 128. But see Carter v. Commissioner of Internal Revenue, 257 F.2d 595, 600—601 (C.A.5th Cir.). The Eighth and Ninth Circuits have taken a contrary position and have refused to permit taxpayers using an accrual method of accounting for their overall ranching operation to employ a cash method of accounting for breeding livestock. United States v. Ekberg, 291 F.2d 913 (C.A.8th Cir.); Little v. Commissioner of Internal Revenue, 294 F.2d 661 (C.A.9th Cir.).
4
Section 1231 of the Internal Revenue Code of 1954, 26 U.S.C. § 1231, provides in relevant part:
§ 1231. Property used in the trade or business and involuntary conversions.
'(a) General rule.
'If, during the taxable year, the recognized gains on sales or exchanges of property used in the trade or business, plus the recognized gains from the compulsory or involuntary conversion (as a result of destruction in whole or in part, theft or seizure, or an exercise of the power of requisition or condemnation or the threat or imminence thereof) of property used in the trade or business and capital assets held for more than 6 months into other property or money, exceed the recognized losses from such sales, exchanges, and conversions, such gains and losses shall be considered as gains and losses from sales or exchanges of capital assets held for more than 6 months. If such gains do not exceed such losses, such gains and losses shall not be considered as gains and losses from sales or exchanges of capital assets. * * *
'(b) Definition of property used in the trade or business.
'For purposes of this section—
'(3) Livestock.
'Such term also includes livestock, regardless of age, held by the taxpayer for draft, breeding, or dairy purposes, and held by him for 12 months or more from the date of acquisition. Such term does not include poultry.'
5
The unit-livestock-price method is described in Treas.Reg. (hereafter Reg.) § 1.471—6, which provides in relevant part:
§ 1.471—6. Inventories of livestock raisers and other farmers.
'(c) Because of the difficulty of ascertaining actual cost of livestock and other farm products * * * farmers raising livestock may value their inventories of animals according to * * * the 'unit-livestock-price method.'
'(e) The 'unit-livestock-price method' provides for the valuation of the different classes of animals in the inventory at a standard unit price for each animal within a class. A livestock raiser electing this method of valuing his animals must adopt a reasonable classification of the animals in his inventory with respect to the age and kind included so that the unit prices assigned to the several classes will reasonably account for the normal costs incurred in producing the animals within such classes. Thus, if a cattle raiser determines that it costs approximately $15 to produce a calf, and $7.50 each year to raise the calf to maturity, his classifications and unit prices would be as follows: Calves, $15; yearlings, $22.50; 2-year olds, $30; mature animals, $37.50. * * *
'(f) A taxpayer who elects to use the 'unit-livestock-price method' must apply it to all livestock raised, whether for sale or for draft, breeding, or dairy purposes. Once established, the unit prices and classifications selected by the taxpayer must be consistently applied in all subsequent taxable years in the valuation of livestock inventories. No changes in the classification of animals or unit prices will be made without the approval of the Commissioner.'
The values suggested in Reg. § 1.471—6(e) have remained unchanged since they were first introduced into the Regulations in 1944. T.D. 5423, 1945 Cum.Bull. 70. Appropriate classifications and unit prices currently recognized by the Internal Revenue Service are: Calves, $40; yearlings, $55; 2-year olds, $70; mature animals, $85. See Farmer's Tax Guide, Internal Revenue Service Publication No. 225, p. 33 (1966 ed.).
6
Reg. § 1.162—12: '* * * The purchase of feed and other costs connected with raising livestock may be treated as expense deductions insofar as such costs represent actual outlay * * *.'
7
Under Reg. § 1.61—4(b), the gross income of accrual-method ranchers is measured by the sum of sales income during the taxable year and closing inventory, less the sum of expenses incurred in raising the animals during the year and opening inventory. See also Reg. § 1.162—12. The mechanics of that computation accomplish the bookkeeping operation of subtracting the cost of goods sold from sales income. The effect of the use by the respondents of their inventory method of accounting is simultaneously to add to ordinary income the annual increments in the unit values of their unsold breeding livestock and to subtract the annual costs of raising the animals.
8
Under the theory of the unit-livestock-price method, the accumulated increments in the unit values of the livestock should equal the total expenses incurred in raising the animals. In effect, therefore, the expenses incurred by the respondents in raising their breeding livestock were deferred until the year of sale.
9
In other words, under both the cash and accrual methods of accounting, the expenses incurred in raising breeding livestock are currently deductible, and the proceeds of sale in excess of those expenses are taxed as capital gains. The essence of the difference between the two accounting methods in the circumstances of this case lies in the tax treatment of the portion of the sales proceeds that represents the recovery of the expenses incurred in raising the animals. That portion of the proceeds is taxed to cash-method ranchers at rates applicable to capital gains, whereas it is taxed to accrual-method ranchers at rates applicable to ordinary income. Thus, with respect to sales of breeding livestock, the cash method of accounting offers ranchers a route by which ordinary income can be transmuted into capital gain. See Mertens, Law of Federal Income Taxation § 22.130, p. 569; Jamison, Tax Planning with Livestock and Farming Operations, 1961 So.Calif.Tax Inst. 583, 599—607.
To the extent, of course, that the expenses actually incurred in raising their breeding livestock exceed the estimated unit valuations, accrual-method ranchers are themselves able to transmute ordinary income into capital gain. It is therefore to the advantage of accrual-method ranchers to place low unit valuations on their breeding livestock.
10
The respondents proposed to accomplish their shift in accounting procedure in two steps: First, by deducting from ordinary income the adjusted basis of the breeding livestock actually sold during the taxable years and to treat the entire proceeds of the sales as capital gain in the year of sale; second, by eliminating from their inventories all remaining livestock held for breeding purposes and achieving a zero basis for those animals by deducting from ordinary income their existing unit valuations, which represent the accumulated costs of raising the animals. Even though the Court of Appeals sustained the claims of the respondents, the court noted that the correction would result in an inordinate deduction against ordinary income in the year the adjustment was made, since expenses properly allocable to prior years would be bunched in the year of the correction. 344 F.2d 227, 229. In the District Court, some of the respondents had suggested that, in the alternative, the inventory correction for breeding livestock not yet sold might be accomplished by allowing reduction of the accrued unit values to a zero basis over a five-year period.
11
See notes 7 and 8, supra.
12
Internal Revenue Code of 1954, §§ 263, 471, 1011—1013, 1016(a)(1); Reg. §§ 1.263(a)—2(a), 1.471—1, 1.1016—2. Cf. I.T. 1309, I—1 Cum.Bull. 196 (1922). See Doyle v. Mitchell Brothers Co., 247 U.S. 179, 183—187, 38 S.Ct. 467, 468—469, 62 L.Ed. 1054; Spring City Foundry Co. v. Commissioner of Internal Revenue, 292 U.S. 182, 185, 54 S.Ct. 644, 645, 78 L.Ed. 1200; Snyder v. Commissioner of Internal Revenue, 295 U.S. 134, 141, n. 4, 55 S.Ct. 737, 740, 79 L.Ed. 1351. Cf. Moen, Special Capital Gains Treatment for Farmers, 17 Ohio St.L.J. 32—41 (1956). Thus, a cash-method rancher who purchasers an animal for breeding purposes must capitalize the cost of the purchase. I.T. 3666, 1944 Cum.Bull. 270; Reg. § 1.162—12.
13
Reg. 45, Art. 110 (April 17, 1919 ed.) (Revenue Act of 1918) provided in part: '* * * The cost of feeding and raising live stock may be treated as an expense deduction * * *.' See Reg. § 1.162—12, note 6, supra. Cf. Reg. 33 (Revised), 30, 404—405 (Revenue Act of 1916, as amended by Revenue Act of 1917). At the time the Regulations under the Revenue Act of 1918 were promulgated, it appears that the Bureau of Internal Revenue did not recognize specialized techniques of accrual accounting for approximating and deferring the cost of raising an animal to maturity. See Special Letter from the Secretary of the Treasury to the Chairman of the Senate Finance Committee, June 27, 1952, 98 Cong.Rec. 8307, 1952 CCH Fed.Tax Rep. 6239. At least by 1922, however, the accrual method of accounting had been explicitly adapted to the complexity of farm operations. Reg. 62, Arts. 38, 1586(2) (1922 ed.) (Revenue Act of 1921). See also note 21, infra.
14
Favorable tax treatment for capital gains was introduced into the income tax law in the Revenue Act of 1921, but gains from the sale of breeding livestock continued to be treated as ordinary income. Cf. Wells, Legislative History of Treatment of Capital Gains under the Federal Income Tax, 1913—1948, 2 Nat.Tax.J. 12 (1949).
15
The principal utility of the simplified cash method was that it enabled farmers and ranchers to escape the complexity of establishing and deferring the precise costs of raising their breeding animals. Compare Reg. § 1.471—6(c), supra, note 5. In addition, ranchers using the cash method possessed substantial flexibility in determining the year in which income was realized. The defects of the method were that it produced a bunching of income in the year of sale and an inaccurate matching of income from the sale of the livestock with the expenses incurred in raising the animals The accrual method, on the other hand, involved neither bunching of income nor inaccurate matching of income with expenses. Moreover, under the unit-livestock-price variant of the accrual method of accounting chosen by the respondents, the incremental amounts taken into inventory each year as the livestock increased in value were available as a source of income against which the expenses incurred in raising the animals could be deducted.
16
Reg. 62, Art. 1586(1) (1922 ed.) (Revenue Act of 1921).
17
Revenue Act of 1942, c. 619, 56 Stat. 846, § 151(b).
18
See I.T. 3666, 1944 Cum.Bull. 270; I.T. 3712, 1945 Cum.Bull. 176; Special Ruling by Commissioner of Internal Revenue, Aug. 4, 1947 (1948 CCH Fed.Tax Rep. 6091) (capital gain treatment available to cash-method ranchers only for extraordinary sales of breeding livestock, such as in reduction of herd size, not for animals culled from the breeding herd in the normal course of business because of age or disease); Albright v. United States, 173 F.2d 339 (C.A.8th Cir.) (capital gain treatment available to cash-basis ranchers, even for routine sales of breeding livestock); Fawn Lake Ranch Co. v. Commissioner, 12 T.C. 1139, appeal dismissed, 180 F.2d 749 (C.A.8th Cir.) (capital gain treatment available to accrual-method ranchers for sales of breeding livestock, even though the animals had been included in inventory); United States v. Bennett, 186 F.2d 407 (C.A.5th Cir.) (breeding livestock not held primarily for sale); Mim. 6660, 1951 2 Cum.Bull. 60 (capital gain treatment not available for breeding livestock unless animals used as breeders for substantially their full breeding lives).
19
Revenue Act of 1951, c. 521, 65 Stat. 452, 501, § 324. The amendment, which was carried forward without change as § 1231(b)(3) of the 1954 Code, extended from six to 12 months the holding period required before sale of the livestock could qualify as a capital gain. A lingering effort by the Commissioner to impose certain additional criteria concerning age and reproductive capacity and use of breeding livestock was rejected by the Court of Appeals for the Second Circuit. McDonald v. Commissioner of Internal Revenue, 214 F.2d 341.
20
Because we hold here that the Commissioner could validly refuse to acquiesce in the respondents' proposed change in their accounting method, we have no occasion to consider the effect either of the respondents' failure to request his permission or of their attempt to initiate the change after their returns for the taxable years had been filed. See Reg. § 1.471—6(a). Compare Bureau of Internal Revenue Release, 1953 CCH Fed. Tax Rep. 6191 (May 12, 1953), announcing that the Bureau at that time would no longer withhold action on requests by livestock raisers to change their methods of accounting.
21
The unit-livestock-price method was not formally recognized in the Treasury Regulations until 1944. T.D. 5423, 1945 Cum.Bull. 70, amending Reg. 111, § 29.22(c)—6 under the 1939 Code. It appears, however, that comparable methods of estimating livestock values had long been informally available to ranchers. See Mim. 5790, 1945 Cum.Bull. 72.
22
Internal Revenue Code of 1954, §§ 7805; 446(a)—(c), (e); 471; Reg. §§ 1.446—1(e)(2), 1.471—6(f). Reg. § 1.471—6(f) requires only that ranchers who use the unit-livestock-price method for livestock raised for sale must also apply the method to livestock raised for breeding purposes. By that procedure, a unitary accounting system is established for all livestock raised by the ranchers. The Commissioner does not contend that livestock raised for breeding purposes and livestock raised for sale must be maintained in the same inventory, and no question is raised here concerning the availability to ranchers of a depreciation deduction on the unit value of livestock that have been raised to maturity for breeding purposes. Cf. Reg. §§ 1.61—4(b), 1.167(a) 6(b). Compare I.T. 3712, 1945 Cum.Bull. 176; Mim. 5790, 1945 Cum.Bull. 72. Also, no question is raised here concerning the status of livestock that a rancher had purchased, rather than raised, for breeding purposes. See Reg. § 1.471—6(g).
23
The Secretary has stated that the Treasury Department is foreclosed by the legislative history of the 1951 amendment from eliminating by Regulation the capital gain windfall available to cash-method ranchers. Special Letter from the Secretary of the Treasury to the Chairman of the Senate Finance Committee, supra, note 13. Both of the Committee Reports on the Revenue Act of 1951 stated that 'gains from sales of livestock should be computed in accordance with the method of livestock accounting used by the taxpayer and presently recognized by the Bureau of Internal Revenue.' S.Rep. No. 781, 82d Cong., 1st Sess., p. 42, 1951—2 Cum.Bull. 458, 488; H.R.Rep. No. 586, 82d Cong., 1st Sess., p. 32, 1951—2 Cum.Bull. 357, 380, U.S.Code Cong. & Admin. Service 1951, p. 2012. (Emphasis added.) We need not here determine the correctness of the Secretary's interpretation of the legislative history, since no question is presented in this case concerning the vulnerability of the postion of cash-method ranchers to action by the Secretary. Similarly, because of the grounds on which we rest our decision, we do not pass upon the Commissioner's contention that the legislative history established a mandate by Congress in favor of his position in the present case.
24
See note 15, supra.
| 1112
|
384 U.S. 118
86 S.Ct. 1306
16 L.Ed.2d 409
NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE et al., Petitioners,v.Haldred OVERSTREET.
No. 505.
Supreme Court of the United States
Argued March 29, 1966.
April 27, 1966
Rehearing Denied June 6, 1966.
See 384 U.S. 981, 84 S.Ct. 1857.
Robert L. Carter, New York City, for petitioners.
Submitted on brief by Hugh P. Futrell, Jr., Savannah, Ga., for respondent.
PER CURIAM.
1
The writ of certiorari is dismissed as imprivodently granted.
2
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BRENNAN and Mr. Justice FORTAS concur, dissenting.
3
In The boy claimed that respondent, the owner of a market at which the boy was employed, had accused him of stealing merchandise and had thereafter slapped and kicked him. The truth of this charge remains disputed. The boy's mother, dissatisfied with the response of the local police, contacted the Savannah Branch of the National Association for the Advancement of Colored People. The Branch responded by organizing a campaign to withhold patronage from respondent. Pickets were established and customers were asked to refrain from shopping in the market. Although the record does not contain any evidence of misconduct on the part of the Branch's members or officers, the picketing apparently attracted substantial crowds. There were incidents involving the intimidation of customers, blocking of sidewalks, and scattered incidents of violence. The trial judge instructed the jury that it might hold the Branch responsible for the respondent's damages if it found that the picketing was the 'proximate cause' of the misconduct of others.1 The judge further instructed the jury that should it hold the Branch liable, it might also hold petitioner—the national NAACP—if the Branch were found to be its 'agent.' The jury held both the Branch and petitioner liable. Damages totaling $85,793 were assessed: this figure includes $50,000 in punitive damages. The Georgia Supreme Court affirmed, 221 Ga. 16, 142 S.E.2d 816, and we granted certiorari, limited to the question of whether holding petitioner, the national organization, liable 'for acts performed without its knowledge and by persons beyond its control' denied it rights secured by the Fourteenth Amendment. 382 U.S. 937, 86 S.Ct. 388, 15 L.Ed.2d 348.
4
Respondent has suffered economic loss as a result of the conduct of those who blocked his sidewalk and threatened his customers. I assume that nothing in the Constitution bars recovery for his injuries from those individuals. See Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834. The courts below found that the Branch was responsible for these injuries, and no questions as to that aspect of the case are now before us. We have only the question whether, given the liability of the Branch, petitioner, the national NAACP, may be held responsible for respondent's loss—and for the punitive damages imposed.
5
The amended complaint alleged that W.W. Law, an officer of the Branch, 'in using such tactics, was acting in and for the services' of petitioner 'as its agent, employee, and servant, within the scope of said agency, employment and service.' That allegation was denied by petitioner and the record does not contain one iota of proof that petitioner controlled, authorized, or even knew of these activities.
6
Petitioner is a nonprofit corporation organized in New York for the purpose of promoting equality of treatment for Negro citizens.2 The Branch is concededly an affiliate of that national organization. A portion of the dues it collects is forwarded to the national, and members of the local branch are automatically members of the national organization. Members of the local association can and do attend the annual national convention at which they participate in workshops and discussions relating to NAACP activities. The Branch makes an annual report of its activities to the national NAACP.
7
That, for all the record shows, is the full extent of the relations between petitioner and the Branch. There is no evidence of any power on the part of petitioner to control the conduct of the Branch. There is no evidence of any effort in past years by petitioner to exercise such control. The Branch officers were not, for all the record shows, national officers. The petitioner did not order the demonstrations nor did it authorize them. The record affirmatively shows that petitioner had no knowledge of the demonstrations against respondent and did not learn of them until it was sent the restraining order that was served upon the Branch president. And nothing in the record suggests 'ratification'—even by inaction over a sustained period—of the local's activities against respondent or of similar activities.
8
The standards by which the trial court allowed this 'agency' to be measured were, to say the least, unclear. The trial judge instructed the jury that the petitioner was a New York corporation which could 'only be represented in Georgia by agents, and the agents must conduct themselves in a manner that is compatible with the purposes of that organization.' He then instructed as follows:
9
'Now did the National Association for the Advancement of Colored People have an agent in Savannah? Who was that agent? Was it W.W. Law (the Branch's president)? * * * Is the National Association responsible for what this affiliate does? * * * Are they so connected that one is responsible for the act of the other by reason of the agency; by reason of their concerted activities as expressed in this conspiracy? As the Court sees it, you can't get agency and conspiracy separated in this case. A corporation may be a member of a conspiracy if its officers and agents take part in it and it furthers the conspiracy. You look to the evidence and see if it preponderates as to these organizations. Was there an agency that bound the National Association * * *? Did they participate through their agents and members and people who had a right to bind them in this conspiracy?' (Emphasis added.) These instructions, to which the defendants excepted and assigned as error on appeal, gave the jury little guidance as to the circumstances in which it would be appropriate to hold liable the national NAACP. The remarks of the trial judge in considering petitioner's motion for a nonsuit are, in this respect, revealing: '(S)o far as the evidence is concerned, there (is) no evidence to the effect that any member (of the Branch) was the agent of the national corporation. In other words, they were just affiliated.' (Emphasis added.)
10
To equate the liability of the national organization with that of the Branch in the absence of any proof that the national authorized or ratified the misconduct in question could ultimately destroy it. The rights of political association are fragile enough without adding the additional threat of destruction by lawsuit. We have not been slow to recognize that the protection of the First Amendment bars subtle as well as obvious devices by which political association might be stifled. See Bates v. City of Little Rock, 361 U.S. 516, 523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480. Thus we have held that forced disclosure of one's political associations is, at least in the absence of a compelling state interest, inconsistent with the First Amendment's guaranty of associational privacy. E.g., DeGregory v. Attorney General of State of New Hampshire, 383 U.S. 825, 86 S.Ct. 1148; Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 543 546, 83 S.Ct. 889, 892—894, 9 L.Ed.2d 929; Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231; N.A.A.C.P. v. State of Alabama ex rel. Patterson, 357 U.S. 449, 462—463, 78 S.Ct. 1163, 1171—1172. Recognizing that guilt by association is a philosophy alien to the traditions of a free society (see Schware v. Board of Bar Examiners, 353 U.S. 232, 245—246, 77 S.Ct. 752, 759—760, 1 L.Ed.2d 796) and the First Amendment itself, we have held that civil or criminal disabilities may not be imposed on one who joins an organization which has among its purposes the violent overthrow of the Government, unless the individual joins knowing of the organization's illegal purposes (Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216) and with the specific intention to further those purposes. See Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238; Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992.
11
The present case contains no less a threat to political association. That the threat comes in the form of civil suits for damages rather than that of direct governmental restraints is of no consequence as we noted in New York Times Co. v. Sullivan, 376 U.S. 254, 265, 84 S.Ct. 710, 718, 11 L.Ed.2d 686. Today a judgment of more than $80,000 is fastened on the national NAACP. Juries hostile to the aims of an organization in the educational or political field, unless carefully confined by meticulous instructions and judicial supervision, can deliver crushing verdicts that may stifle organized dissent from the views and policies accepted by the majority.
12
This case thus carries us into territory in which principles of state law must be accommodated with overriding federal precepts. The law of agency which a State chooses to follow functions, for the most part, free of constitutional restraint; in our federal system, each State may regulate the relations between principal, agent, and third parties according to its own standards of fairness and sound policy. But when a state policy thwarts interests which the Federal Constitution affords special protection, that state policy must yield. For example, though state law customarily determines whether a particular contract is enforceable, notwithstanding the applicable commercial law a state court may not enforce covenants restricting sale of real property to non-whites. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161. While the States may preserve order on the public streets and punish conduct constituting a 'breach of the peace' as defined by local law, peaceful expression may not, regardless of the label put upon it, be punished. Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213. And see Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697. Questions of legislative apportionment, though primarily matters of state law, must be resolved in compliance with the Federal Equal Protection Clause. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506. The same is true of voter registration, Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079. State regulation of the practice of law more specifically, the rules regarding solicitation of legal business—must yield in favor of the First Amendment right to join together in a common effort to assert legal rights. N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405; Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89.
13
In N.A.A.C.P. v. Button, supra, we rejected the State's claim that 'solicitation' of legal business is outside the area of freedoms protected by the First Amendment. We said that 'a State cannot foreclose the exercise of constitutional rights by mere labels.' 371 U.S., at 429, 83 S.Ct., at 336. So it should be in this case. Terms such as 'agency' and 'affiliation' have no talismanic significance. In the context of this case, they obscure rather than promote sound analysis. The question we must answer is whether a national political association can be held responsible for wrongs committed by those beyond its control in a constitutional system where freedom of expression and association is treasured.
14
The threats which political organizations of this kind today face were once a great burden on labor unions.3 Congress acted to relieve that burden by enacting § 6 of the Norris-LaGuardia Act:
15
'No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.' 47 Stat. 71.
16
See United Brotherhood of Carpenters and Joiners of America v. United States, 330 U.S. 395, 67 S.Ct. 775, 91 L.Ed. 973. We recently held in United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, that an international union could not be held liable for the tortious conduct of a local in the absence of 'clear proof' of 'participation, authorization, or ratification' by the international union.
17
We have of course no like statute here. But the First Amendment, which commands vigilance lest the rights it assures be denied the 'breathing space' (N.A.A.C.P. v. Button, supra, 371 U.S. 433, 83 S.Ct. 338) necessary for survival, provides guidance. In my view, it forbids the imposition of liability on a national political association on account of the misconduct of a local branch without proof that the national organization specifically authorized or ratified the conduct for which liability is sought to be imposed. A general finding of 'agency' or 'affiliation' is not enough.4 In the present case, the record discloses at most a loose relationship between petitioner and this independently controlled Branch. This record discloses no specific authorization or ratification by petitioner of the acts which the Georgia courts found tortious. Nor is there any evidence of any participation by petitioner in such conduct. The trial judge himself stated that there was no 'agency' shown, but only an 'affiliation' between petitioner and the local Branch. So weak a link cannot, for the reasons I have stated, warrant holding the national NAACP responsible for the damages sustained.
18
I would reverse this judgment.
1
'I charge you that in this case you can consider the effect of the picket(ing). Did * * * the fact that the pickets were there incite activity upon people who were not at all connected with the organization(?); and if that was incited by the pickets, by their mere presence, you could consider the pickets and the placing of the pickets as the proximate cause of what resulted.' (Emphasis added.)
2
See N.A.A.C.P. v. State of Alabama ex rel. Patterson, 357 U.S. 449, 451—452, 78 S.Ct. 1163, 1166—1167, 2 L.Ed.2d 1488. Its certificate of incorporation states that its principal objectives are 'voluntarily to promote equality of rights and eradicate caste or race prejudice among the citizens of the United States; to advance the interest of colored citizens; to secure for them impartial suffrage; and to increase their opportunities for securing justice in the courts, education for their children, employment according to their ability, and complete equality before the law.' Ibid.
3
The burdens of civil suits for damages were felt by the trade union movement in Great Britain as well as in this country. See Webb, Sidney and Beatrice, The History of Trade Unionism, 597 604 (1965 ed.); Cole, The British Working-Class Movement 292—296 (1948).
4
The factors on which the Georgia Supreme Court relied to sustain the finding of 'agency' fall far short of showing any specific authorization by petitioner to the Savannah Branch to engage in the conduct condemned below. It emphasized the following points: (1) both the local and the national organizations use the name 'N.A.A.C.P.'; (2) the petition was served on the Branch president as petitioner's agent, and petitioner made no objection; (3) the Savannah Branch and petitioner shared certain common objectives; (4) members of the Branch were automatically members of the petitioner and a portion of their dues was forwarded to New York; and (5) at national conventions, members of the local were counseled in methods of furthering their efforts in the local district through discussions and workshops. In addition, the court suggested that if there was in fact no agency relation, petitioner 'had the option to repudiate or ratify the act, but (it was) required to do one or the other. And where, as here, (it) never repudiated the act, (it is) deemed to have affirmed it.'
The record is clear that the first notice petitioner had of the Savannah demonstrations was when the restraining order was forwarded to it in New York. By this time, the temporary restraining order was in effect. There was, therefore, no opportunity for petitioner to exercise a moderating influence on the local branch. Compare United Mine Workers of America v. Gibbs, supra, where the national union had knowledge of the local's violent conduct and never expressly disavowed it; we held, nonetheless, that there had been no ratification although we noted that had it made some public statements condemning the violence 'our result would undoubtedly be firmer.' Id., at 742, 86 S.Ct. at 1147. Moreover, petitioner specifically denied respondent's allegations of agency in its answer filed shortly after the suit was begun.
The more demanding requirements of proof which I believe must be met would be satisfied, for example, in a case where the Branch incurred some liability arising out of its collection of dues. I would expect that since the dues paid to the Savannah Branch are, in part, collected on behalf of the national organization, it would be a simple matter to show specific authority to engage in that activity. Perhaps it might be possible to show specific authorization to engage in the conduct involved in this case; the record does not, for example, show what manner of advice and counsel is given the Branch at national conventions. Whether respondent could meet his burden of proof cannot, of course, be determined from the meager record before us.
| 23
|
384 U.S. 127
86 S.Ct. 1321
16 L.Ed.2d 415
UNITED STATES, Appellant,v.GENERAL MOTORS CORPORATION et al.
No. 46.
Argued Dec. 9, 1965.
Decided April 28, 1966.
Daniel M. Friedman, Washington, D.C., for appellant.
Homer I. Mitchell and Victor R. Hansen, Los Angeles, Cal., for appellees.
Mr. Justice FORTAS delivered the opinion of the Court.
1
This is a civil action brought by the United States to enjoin the appellees from participating in an alleged conspiracy to restrain trade in violation of § 1 of the Sherman Act.1 The United States District Court for the Southern District of California concluded that the proof failed to establish the alleged violation, and entered judgment for the defendants. The case is here on direct appeal under § 2 of the Expediting Act, 32 Stat. 823, 15 U.S.C. § 29 (1964 ed.). We reverse.
I.
2
The appellees are the General Motors Corporation, which manufactures, among other things, the Chevrolet line of cars and trucks, and three associations of Chevrolet dealers in and around Los Angeles, California.2 All of the Chevrolet dealers in the area belong to one or more of the appellee associations.
3
Chevrolets are ordinarily distributed by dealers operating under a franchise from General Motors. The dealers purchase the cars from the manufacturer, and then retail them to the public. The relationship between manufacturer and dealer is incorporated in a comprehensive uniform Dealer Selling agreement. This agreement does not restrict or define those to whom the dealer may sell. Nor are there limitations as to the territory within which the dealer may sell. Compare White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738. The franchise agreement does, however, contain a clause (hereinafter referred to as the 'location clause') which prohibits a dealer from moving to or establishing 'a new or different location, branch sales office, branch service station, or place of business including any used car lot or location without the prior written approval of Chevrolet.'
4
Beginning in the late 1950's, 'discount houses' engaged in retailing consumer goods in the Los Angeles area and 'referral services'3 began offering to sell new cars to the public at allegedly bargain prices. Their sources of supply were the franchised dealers. By 1960 a number of individual Chevrolet dealers, without authorization from General Motors, had developed working relationships with these establishments. A customer would enter one of these establishments and examine the literature and price lists for automobiles produced by several manufacturers. In some instances, floor models were available for inspection. Some of the establishments negotiated with the customer for a trade-in of his old car, and provided financing for his new-car purchase.
5
The relationship with the franchised dealer took various forms. One arrangement was for the discounter to refer the customer to the dealer. The car would then be offered to him by the dealer at a price previously agreed upon between the dealer and the discounter. In 1960, a typical referral agreement concerning Chevrolets provided that the price to the customer was not to exceed $250 over the dealer's invoiced cost. For its part in supplying the discounter received $50 per sale.
6
Another common arrangement was for the discounter itself to negotiate the sale, the dealer's role being to furnish the car and to transfer title to the customer at the direction of the discounter. One dealer furnished Chevrolets under such an arrangement, charging the discounter $85 over its invoiced cost, with the discounter getting the best price it could from its customer.
7
These were the principal forms of trading involved in this case, although within each there were variations,4 and there were schemes which fit neither pattern.5 By 1960 these methods for retailing new cars had reached considerable dimensions. Of the 100,000 new Chevrolets sold in the Los Angeles area in that year, some 2,000 represented discount house or referral sales. One Chevrolet dealer attributed as much as 25% of its annual sales to participation in these arrangements, while another accounted for between 400 and 525 referral sales in a single year.
8
Approximately a dozen of the 85 Chevrolet dealers in the Los Angeles area were furnishing cars to discounters in 1960. As the volume of these sales grew, the nonparticipating Chevrolet dealers located near one or more of the discount outlets6 began to feel the pinch. Dealers lost sales because potential customers received, or thought they would receive,7 a more attractive deal from a discounter who obtained its Chevrolets from a distant dealer. The discounters vigorously advertised Chevrolets for sale, with alluring statements as to price savings. The discounters also advertised that all Chevrolet dealers were obligated to honor the new-car warranty and to provide the free services contemplated therein; and General Motors does indeed require Chevrolet dealers to service Chevrolet cars, wherever purchased, pursuant to the new-car warranty and service agreement. Accordingly, nonparticipating dealers were increasingly called upon to service, without compensation, Chevrolets purchased through discounters. Perhaps what grated most was the demand that they 'precondition' cars so purchased—make the hopefully minor adjustments and do the body and paint work necessary to render a factory-fresh car both customer- and road-worthy.
9
On June 28, 1960, at a regular meeting of the appellee Losor Chevrolet Dealers Association, member dealers discussed the problem and resolved to bring it to the attention of the Chevrolet Division's Los Angeles zone manager, Robert O'Connor. Shortly thereafter, a delegation from the association called upon O'Connor, presented evidence that some dealers were doing business with the discounters, and asked for his assistance. O'Connor promised he would speak to the offending dealers. When no help was forthcoming, Owen Keown, a director of Losor, took matters into his own hands. First, he spoke to Warren Biggs and Wilbur Newman, Chevrolet dealers who were then doing a substantial business with discounters. According to Keown's testimony, Newman told him that he would continue the practice 'until * * * told not to by' Chevrolet, and that 'when the Chevrolet Motor Division told him not to do it, he knew that they wouldn't let some other dealer carry on with it.'8
10
Keown then reported the foregoing events at the association's annual meeting in Honolulu on November 10, 1960. The member dealers present agreed immediately to flood General Motors and the Chevrolet Division with letters and telegrams asking for help. Salesmen, too, were to write.9
11
Hundreds of letters and wires descended upon Detroit—with telling effect. Within a week Chevrolet's O'Connor was directed to furnish his superiors in Detroit with 'a detailed report of the discount house operations * * * as well as what action we in the Zone are taking to curb such sales.'10
12
By mid-December General Motors had formulated its response. On December 15, James M. Roche, then an executive vice president of General Motors, wrote to some of the complaining dealers. He noted that the practices to which they were objecting 'in some instances represent the establishment of a second and unauthorized sales outlet or location contrary to the provisions of the General Motors Dealers Selling Agreements.' (Emphasis supplied.) Recipients of the letter were advised that General Motors personnel proposed to discuss that matter with each of the dealers.11 O'Connor in Los Angeles was apprised of the letter's content and instructed to carry on the personal discussions referred to therein. With respect to the offending dealers, he was to work with Roy Cash, regional manager for the Chevrolet Division. Cash had been briefed on the subject in Detroit on December 14.
13
General Motors personnel proceeded to telephone all area dealers, both to identify those associated with the discounters and to advise nonparticipants that General Motors had entered the lists. The principal offenders were treated to unprecedented individual confrontations with Cash, the regional manager. These brief meetings were wholly successful in obtaining from each dealer his agreement to abandon the practices in question. Some capitulated during the course of the four- or five-minute meeting, or immediately thereafter.12 One dealer, who met not with Cash but with the city sales manager for Chevrolet, put off decision for a week 'to make sure that the other dealers, or most of them, had stopped their business dealings with discount houses.'13
14
There is evidence that unanimity was not obtained without reference to the ultimate power of General Motors. The testimony of dealer Wilbur Newman was that regional manager Cash related a story, the relevance of which was not lost upon him, that in handling children, 'I can tell them to stop something. If they don't do it * * * I can knock their teeth down their throats.'
15
By mid-January General Motors had elicited from each dealer a promise not to do business with the discounters. But such agreements would require policing—a fact which had been anticipated. General Motors earlier had initiated contacts with firms capable of performing such a function. This plan, unilaterally to police the agreements, was displaced, however, in favor of a joint effort between General Motors, the three appellee associations, and a number of individual dealers.
16
On December 15, 1960, representatives of the three appellee associations had met and appointed a joint committee to study the situation and to keep in touch with Chevrolet's O'Connor.14 Early in 1961, the three associations agreed jointly to finance the 'shopping' of the discounters to assure that no Chevrolet dealer continued to supply them with cars. Each of the associations contributed $5,000, and a professional investigator was hired. He was instructed to try to purchase new Chevrolets from the proscribed outlets, to tape-record the transactions, if any, and to gather all the necessary documentary evidence—which the associations would then lay 'at the doorstep of Chevrolet.' These joint associational activities were both preceded and supplemented by similar 'shopping' activities by individual dealers and by appellee Losor Chevrolet Dealers Association.
17
General Motors collaborated with these policing activities. There is evidence that zone manager O'Connor and a subordinate, Jere Faust, actively solicited the help of individual dealers in uncovering violations. Armed with information of such violations obtained from the dealers or their associations, O'Connor or members of his staff would ask the offending dealer to come in and talk. The dealer then was confronted with the car purchased by the 'shopper,' the documents of sale, and in most cases a tape recording of the transaction. In every instance, the embarrassed dealer repurchased the car, sometimes at a substantial loss, and promised to stop such sales. At the direction of O'Connor or a subordinate, the checks with which the cars were repurchased were made payable to an attorney acting jointly for the three defendant associations.
18
O'Connor testified that on no occasion did he 'force' a dealer to repurchase; he merely made the opportunity available. But one dealer testified that when an assistant zone manager for the Chevrolet Division asked him to come in and talk about discount sales, 'he specified a sum of money which I was to bring with me when I came down and saw him. * * * I kept the appointment and brought a cashier's check. I knew when I came down to Los Angeles that I was going to repurchase an automobile * * *.' Another dealer testified that upon being confronted with evidence that one of his cars had been purchased through a referral service, he not only bought in back (without questioning the correctness of the price exacted) but also fired the employee responsible for the transaction—although the employee had been commended by the Chevrolet Division a few weeks earlier as the 'number one fleet salesman' in the 11-state Pacific region.
19
By the spring of 1961, the campaign to eliminate the discounters from commerce in new Chevrolet cars was a success. Sales through the discount outlets seem to have come to a halt. Not until a federal grand jury commenced an inquiry into the matters which we have sketched does it appear that any Chevrolet dealer resumed its business association with the discounters.
II.
20
On these basic facts, the Government first proceeded criminally. A federal grand jury in the Southern District of California returned an indictment. After trial, the defendants were found not guilty. The present civil action, filed shortly after return of the indictment, was then brought to trial.
21
Both the Government and the appellees urge the importance, for purposes of decision, of the 'location clause' in the Dealer Selling Agreement which prohibits a franchised dealer from moving to or establishing 'a new or different location, branch sales office, branch service station, or place of business * * * without the prior written approval of Chevrolet.' The appellees contend that this contractual provision is lawful, and that it justifies their actions. They argue that General Motors acted lawfully to prevent its dealers from violating the 'location clause,' that the described arrangements with discounters constitute the establishment of additional sales outlets in violation of the clause, and that the individual dealers—and their associations have an interest in uniform compliance with the franchise agreement, which interest they lawfully sought to vindicate.
22
The Government invites us to join in the assumption, only for purposes of this case, that the 'location clause' encompasses sales by dealers through the medium of discounters. But it urges us to hold that, so construed, the provision is unlawful as an unreasonable restraint of trade in violation of the Sherman Act.15
23
We need not reach these questions concerning the meaning, effect, or validity of the 'location clause' or of any other provision in the Dealer Selling Agreement, and we do not. We do not decide whether the 'location clause' may be construed to prohibit a dealer, party to it, from selling through discounters, or whether General Motors could by unilateral action enforce the clause, so construed. We have here a classic conspiracy in restraint of trade: joint, collaborative action by dealers, the appellee associations, and General Motors to eliminate a class of competitors by terminating business dealings between them and a minority of Chevrolet dealers and to deprive franchised dealers of their freedom to deal through discounters if they so choose. Against this fact of unlawful combination, the 'location clause' is of no avail. Whatever General Motors might or might not lawfully have done to enforce individual Dealer Selling Agreements by action within the borders of those agreements and the relationship which each defines, is beside the point. And, because the action taken constitutes a combination or conspiracy, it is not necessary to consider what might be the legitimate interest of a dealer in securing compliance by others with the 'location clause,' or the lawfulness of action a dealer might individually take to vindicate this interest.
24
The District Court decided otherwise. It concluded that the described events did not add up to a combination or conspiracy violative of the antitrust laws. But its conclusion cannot be squared with its own specific findings of fact. These findings include the essentials of a conspiracy within § 1 of the Sherman Act: That in the summer of 1960 the Losor Chevrolet Dealers Association, 'through some of its dealer-members,' complained to General Motors personnel about sales through discounters (Finding 34); that at a Losor meeting in November 1960 the dealers there present agreed to embark on a letter-writing campaign directed at enlisting the aid of General Motors (Finding 35); that in December and January General Motors personnel discussed the matter with every Chevrolet dealer in the Los Angeles area and elicited from each a promise not to do business with the discounters (Finding 39); that representatives of the three associations of Chevrolet dealers met on December 15, 1960, and created a joint investigating committee (Finding 40); that the three associations then undertook jointly to police the agreements obtained from each of the dealers by General Motors; that the associations supplied information to General Motors for use by it in bringing wayward dealers into line, and that Chevrolet's O'Connor asked the associations to do so (Findings 41 and 42); that as a result of this collaborative effort, a number of Chevrolet dealers were induced to repurchase cars they had sold through discounters and to promise to abjure such sales in future (Finding 42).
25
These findings by the trial judge compel the conclusion that a conspiracy to restrain trade was proved.16 The error of the trial court lies in its failure to apply the correct and established standard for ascertaining the existence of a combination or conspiracy under § 1 of the Sherman Act. See United States v. Parke, Davis & Co., 362 U.S. 29, 44—45, 80 S.Ct. 503, 511—512. The trial court attempted to justify its conclusion on the following reasoning: That each defendant and alleged co-conspirator acted to promote its own selfinterest; that General Motors, as well as the defendant associations and their members, has a lawful interest in securing compliance with the 'location clause' and in thus protecting the franchise system of distributing automobiles—business arrangements which the court deemed lawful and proper; and that in seeking to vindicate these interests the defendants and their alleged co-conspirators entered into no 'agreements' among themselves, although they may have engaged in 'parallel action.'
26
These factors do not justify the result reached. It is of no consequence, for purposes of determining whether there has been a combination or conspiracy under § 1 of the Sherman Act, that each party acted in its own lawful interest. Nor is it of consequence for this purpose whether the 'location clause' and franchise system are lawful or economically desirable. And although we regard as clearly erroneous and irreconcilable with its other findings the trial court's conclusory 'finding' that there had been no 'agreement' among the defendants and their alleged co-conspirators, it has long been settled that explicit agreement is not a necessary part of a Sherman Act conspiracy—certainly not where, as here, joint and collaborative action was pervasive in the initiation, execution, and fulfillment of the plan. United States v. Parke, Davis & Co., supra, at 43, 80 S.Ct. at 511; United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 722-723, 64 S.Ct. 805, 813, 88 L.Ed. 1024; Federal Trade Comm'n v. Beech-Nut Packing Co., 257 U.S. 441, 455, 42 S.Ct. 150, 155, 66 L.Ed. 307.
27
Neither individual dealers nor the associations acted independently or separately. The dealers collaborated, through the associations and otherwise, among themselves and with General Motors, both to enlist the aid of General Motors and to enforce dealers' promises to forsake the discounters. The associations explicitly entered into a joint venture to assist General Motors in policing the dealers' promises, and their joint proffer of aid was accepted and utilized by General Motors.
28
Nor did General Motors confine its activities to the contractual boundaries of its relationships with individual dealers. As the trial court found (Finding 39), General Motors at no time announced that it would terminate the franchise of any dealer which furnished cars to the discounters.17 The evidence indicates that it had no intention of acting in this unilateral fashion.18 On the contrary, overriding corporate policy with respect to proper dealer relations19 dissuaded General Motors from engaging in this sort of wholly unilateral conduct, the validity of which under the antitrust laws was assumed, without being decided, in Parke Davis, supra.
29
As Parke Davis had done, General Motors sought to elicit from all the dealers agreements, substantially interrelated and interdependent, that none of them would do business with the discounters. These agreements were hammered out in meetings between nonconforming dealers and officials of General Motors' Chevrolet Division, and in telephone conversations with other dealers. It was acknowledged from the beginning that substantial unanimity would be essential if the agreements were to be forthcoming. And once the agreements were secured, General Motors both solicited and employed the assistance of its alleged coconspirators in helping to police them. What resulted was a fabric interwoven by many strands of joint action to eliminate the discounters from participation in the market, to inhibit the free choice of franchised dealers to select their own methods of trade and to provide multilateral surveillance and enforcement. This process for achieving and enforcing the desired objective can by no stretch of the imagination be described as 'unilateral' or merely 'parallel.' See Parke Davis, supra, 362 U.S. at 46, 80 S.Ct. at 512; Federal Trade Comm'n v. Beech-Nut Packing Co., 257 U.S. 441, 453, 42 S.Ct. 150, 154; United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 722—723, 64 S.Ct. 805, 813; Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226, 59 S.Ct. 467, 474, 83 L.Ed. 610; United States v. Masonite Corp., 316 U.S. 265, 275, 62 S.Ct. 1070, 1076, 86 L.Ed. 1461; Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75 Harv.L.Rev. 655 (1962).20
30
There can be no doubt that the effect of the combination or conspiracy here was to restrain trade and commerce within the meaning of the Sherman Act. Elimination, by joint collaborative action, of discounters from access to the market is a per se violation of the Act.
31
In Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741, the Court was confronted with the question whether 'a group of powerful businessmen may act in concert to deprive a single merchant, like Klor, of the goods he needs to compete effectively.' 359 U.S., at 210, 79 S.Ct., at 708. The allegation was that manufacturers and distributors of electrical appliances had conspired among themselves and with a major retailer, Broadway-Hale, 'either not to sell to Klor's (Broadway-Hale's next-door neighbor and competitor) or to sell to it only at discriminatory prices and highly unfavorable terms.' 359 U.S., at 209, 79 S.Ct., at 708. The Court concluded that the alleged group boycott of even a single trader violated the statute21 without regard to the reasonableness of the conduct in the circumstances. Group boycotts of a trader, said the Court, are among those 'classes of restraints which from their 'nature or character' were unduly restrictive * * *.' 359 U.S., at 211, 79 S.Ct., at 709. This was not new doctrine, for it had long been recognized that 'there are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use,' and that group boycotts are of this character. Northern Pac. R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545. See also Fashion Originators' Guild of America, Inc. v. Federal Trade Comm'n, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949, and Eastern States Retail Lumber Dealers' Assn. v. United States, 234 U.S. 600, 613—614, 34 S.Ct. 951, 954—955, 58 L.Ed. 1490, neither of which involved price-fixing.
32
The principle of these cases is that where businessmen concert their actions in order to deprive others of access to merchandise which the latter wish to sell to the public, we need not inquire into the economic motivation underlying their conduct. See Barber, Refusals To Deal Under the Federal Antitrust Laws, 103 U.Pa.L.Rev. 847, 872—885 (1955). Exclusion of traders from the market by means of combination or conspiracy is so inconsistent with the free-market principles embodied in the Sherman Act that it is not to be saved by reference to the need for preserving the collaborators' profit margins or their system for distributing automobiles, any more than by reference to the allegedly tortious conduct against which a combination or conspiracy may be directed—as in Fashion Originators' Guild of America, Inc. v. Federal Trade Comm'n, supra, 312 U.S., at 468, 61 S.Ct., at 708.
33
We note, moreover, that inherent in the success of the combination in this case was a substantial restraint upon price competition—a goal unlawful per se when sought to be effected by combination or conspiracy. E.g., United States v. Parke, Davis & Co., 362 U.S. 29, 47, 80 S.Ct. 503, 513; United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223, 60 S.Ct. 811, 844, 84 L.Ed. 1129. And the per se rule applies even when the effect upon prices is indirect. Simpson v. Union Oil Co., 377 U.S. 13, 16—22, 84 S.Ct. 1051, 1057, 12 L.Ed.2d 98; Socony-Vacuum Oil Co., supra.
34
There is in the record ample evidence that one of the purposes behind the concerted effort to eliminate sales of new Chevrolet cars by discounters was to protect franchised dealers from real or apparent price competition. The discounters advertised price savings. See n. 7, supra. Some purchasers found and others believed that discount prices were lower than those available through the franchised dealers. Ibid. Certainly, complaints about price competition were prominent in the letters and telegrams with which the individual dealers and salesmen bombarded General Motors in November 1960.22 (Finding 38.) And although the District Court found to the contrary, there is evidence in the record that General Motors itself was not unconcerned about the effect of discount sales upon general price levels.23
35
The protection of price competition from conspiratorial restraint is an object of special solicitude under the antitrust laws. We cannot respect that solicitude by closing our eyes to the effect upon price competition of the removal from the market, by combination or conspiracy, of a class of traders. Nor do we propose to construe the Sherman Act to prohibit conspiracies to fix prices at which competitors may sell, but to allow conspiracies or combinations to put competitors out of business entirely.
36
Accordingly, we reverse and remand to the United States District Court for the Southern District of California in order that it may fashion appropriate equitable relief. See United States v. Parke, Davis & Co., supra, 362 U.S., at 47—48, 80 S.Ct., at 513—514. It is so ordered.
37
Reversed and remanded.
38
Mr. Justice HARLAN, concurring in the result.
39
Although I consider that United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, decided in 1960, represents basically unsound antitrust doctrine, see my dissenting opinion, 362 U.S., at 49, 80 S.Ct., at 514, I see no escape from the conclusion that it controls this case. Parke Davis held that a manufacturer cannot maintain resale prices by refusing to sell to those who do not follow his suggested prices if the refusal is attended by concerted action with his customers, even though he may unilaterally so conduct himself. See United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992. Although Parke Davis related to alleged price-fixing, I have been unable to discern any tenable reason for differentiating it from a case involving, as here, alleged boycotting. The conclusion that Parke Davis governs the present case is therefore unavoidable, given the undisputed evidence that General Motors acted in concert with its dealers in enforcing the location clause. In my opinion, however, General Motors is not precluded from enforcing the location clause by unilateral action, and I find nothing in the Court's opinion to the contrary.
40
On this basis I concur in the judgment of the Court.
1
The statute reads in relevant part: 'Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. * * *' 26 Stat. 209, 15 U.S.C. § 1 (1964 ed.).
2
Named as co-conspirators but not as defendants are '(t)he officers, directors, and members of (the three association), certain officers and employees of such members, certain officers and employees of General Motors, other Chevrolet dealers in the Southern California area, and others to the plaintiff unknown * * *.'
3
Since the evidence does not consistently distinguish between 'discount houses' and 'referral services,' based either on the variety of goods offered to the public or on the nature of the arrangement between the establishment and the franchised dealer which supplied it with cars, we shall hereinafter use the term 'discounter' to embrace all such establishments.
4
One dealer, for example, paid its referral service one-third of the gross profit on each sale, up to $75, there being no fixed price at which the sale was to take place. The same dealer earlier had paid a flat fee of $17.50 for every referral, whether or not the sale was consummated.
5
At least one discount house actually purchased its cars from cooperative dealers, then resold them to its customers. In this situation, which in the trade is referred to as 'bootlegging,' the customer does not receive a new-car warranty. General Motors, while disapproving of the practice, does not assert that it violates the 'location clause.' In those arrangements against which General Motors and the associations did direct their efforts, title to the new car passed directly from dealer to retail customer, who thus obtained a new-car warranty and service agreement.
There must also be distinguished the ubiquitous practice of using 'bird dogs'—informal sources who steer occasional customers toward a particular dealer, in return for relatively small fees often a bottle of liquor. This practice is not only deemed by General Motors not to violate the 'location clause,' but has the corporation's endorsement as a desirable sales device.
6
As the District Court found, 70% of the local Chevrolet dealers were located within five miles of one or more of the 23 discount house or referral outlets.
7
There is evidence in the record that discount sales undercut the prices at which franchised dealers were able to, or chose to, compete. Two purchasers of Chevrolets, one on referral and the other in a discount house 'sale,' testified that they had 'shopped' other dealers but found the discount and referral prices lower. Dealers and their salesmen complained to General Motors about sales lost through inability to meet the discounters' price. Moreover, the discounters advertised and actually provided auto loans at interest rates substantially lower than those offered by G.M.A.C., General Motors' financing subsidiary.
There is also evidence that it was not just price itself which induced customers to purchase Chevrolets through the discounters. One customer testified that he preferred the discount house because he thereby avoided the haggling over price which seems an inevitable facet of purchasing a car in the orthodox way. Others apparently assumed, without bothering to confirm by comparison shopping, that 'discount' stores would offer lower prices. This assumption was fed by discount house advertising which promised 'the lowest price anywhere' and 'savings of hundreds of dollars.'
8
Dealer Biggs put the same sentiments into a letter to both Keown and Chevrolet's zone manager O'Connor, written on November 5, 1960. The day before, in O'Connor's presence, Keown had challenged Biggs to justify his dealings with the discounters. Biggs wrote: 'We would be most reluctant to discard an account as good as this one without rather concrete assurance that it would not immediately be picked up by another Chevrolet dealer.' Two weeks later, O'Connor forwarded Biggs' letter to General Motors officials in Detroit.
9
In Keown's words, 'We were seeking the assistance of the higher echelon officials of Chevrolet and General Motors in bringing about an end to the discount house sale of Chevrolets.'
10
O'Connor's report, dated November 22, recounted that 'zone management' had talked with the offending dealers 'in an attempt to have them desist,' and that '(o)ur Dealer Associations have formed a committee to call on the supplying dealers and have asked them and have attempted to persuade them to discontinue this practice.' Supported by a copy of dealer Biggs' letter, see n. 8, supra, O'Connor predicted that 'many dealers will cease this type of business if they had any assurance that the account would not be picked up by some other dealer, immediately upon relinquishment.'
11
Roche wrote to those dealers who had complained directly to John Gordon, then president of General Motors. On December 29, 1960, a virtually identical letter went out to all General Motors dealers throughout the Nation, under the signature of the general sales managers for the respective divisions.
12
One dealer testified that he abruptly terminated arrangements long maintained with two discount houses, despite the fact that one of these connections owed him $20,000 and the other $28,000. In the preceding four weeks the latter had reduced its indebtedness by $52,000 and could reasonably have been expected to erase it completely within a few weeks. The dealer anticipated that upon cancellation of the accounts these debts would become uncollectible. His fears were justified. The accounts were terminated. The debts remained unpaid.
13
According to Francis Bruder, a dealer who had been doing business with the discounters since 1957, 'Cash told me that he felt certain that the other dealers would discontinue dealing with discount houses and referral services as well. I left this meeting with the impression that every dealer who had been doing business with a discount house or referral service would soon quit.'
This was precisely the impression General Motors had intended to implant. As was explained in an inter-office memorandum to the general sales manager of General Motors' Chevrolet Division, '(All dealers were talked to) in order that every dealer with whom the subject was discussed would know that a similar discussion was being held with all other dealers so that, if certain dealers should elect to discontinue their cooperation with a discount house, we might be able to discourage some other dealer who might be solicited from starting the practice.'
14
The District Court characterized this December 15 meeting as the first between representatives of the three associations, pertaining to the problem of discount house and referral sales. However, as we have previously noted, n. 10, supra, O'Connor reported to General Motors three weeks earlier, on November 22, that the three associations had formed a committee which already had called upon non-conforming dealers. The record does not enable us to resolve this factual conflict, nor is its resolution important. On either version, the appellee associations entered into an explicit agreement to act together to eliminate the new mode of intrabrand competition.
15
The Government's complaint contains no reference to the 'location clause,' and the Government concedes that its case was tried on a conspiracy theory, the defendants injecting the contractual issue by way of defense. Trial counsel for the Government did advert to the clause in the District Court, but it does not appear that he challenged its validity, as construed, in the same sense that the Government does here. See Trial Transcript, pp. 9, 17—18. In light of our disposition of the case, we have no occasion to consider whether the Government's argument directed to the clause, as construed, is properly before us.
16
We note that, as in United States v. Parke, Davis & Co., 362 U.S. 29, 44—45, 80 S.Ct. 503, 511—512, 4 L.Ed.2d 505, the ultimate conclusion by the trial judge, that the defendants' conduct did not constitute a combination or conspiracy in violation of the Sherman Act, is not to be shielded by the 'clearly erroneous' test embodied in Rule 52(a) of the Federal Rules of Civil Procedure. That Rule in part provides: 'Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' As in Parke Davis, supra, the question here is not one of 'fact,' but consists rather of the legal standard required to be applied to the undisputed facts of the case. See United States v. Singer Mfg. Co., 374 U.S. 174, 194, n. 9, 83 S.Ct. 1773, 1783; 10 L.Ed.2d 823; United States v. Mississippi Valley Generating Co., 364 U.S. 520, 526, 81 S.Ct. 294, 297, 5 L.Ed.2d 268, and cases there cited.
Moreover, the trial court's customary opportunity to evaluate the demeanor and thus the credibility of the witnesses, which is the rationale behind Rule 52(a) (see United States v. Oregon State Med. Soc., 343 U.S. 326, 331—332, 72 S.Ct. 690, 694—695, 96 L.Ed. 978), plays only a restricted role here. This was essentially a 'paper case.' It did not unfold by the testimony of 'live' witnesses. Of the 38 witnesses who gave testimony, only three appeared in person. The testimony of the other 35 witnesses was submitted either by affidavit, by deposition, or in the form of an agreed-upon narrative of testimony given in the earlier criminal proceeding before another judge. A vast number of documents were also introduced, and bear on the question for decision.
In any event, we resort to the record not to contradict the trial court's findings of fact, as distinguished from its conclusory 'findings,' but to supplement the court's factual findings and to assist us in determining whether they support the court's ultimate legal conclusion that there was no conspiracy.
17
The December letters to all dealers said only that '(i)n effect, in some instances' the arrangements in question might violate the unauthorized location clause of the Dealer Selling Agreement. No dealer was told, either by letter or in person, that its conduct violated the franchise agreement, and no dealer was warned that continuance of discount house or referral sales would result in termination of its franchise. Zone manager O'Connor did not regard his instructions from Detroit as authorizing him to go that far, and he was of the view that 'the general letter (to all dealers) didn't suggest any such thing.'
18
We refer to this without considering whether General Motors could lawfully have taken such action.
19
James Roche testified, 'It is not (General Motors') practice to threaten dealers with termination of their franchise.' Good dealers and dealer locations, he said, are hard to come by. In many dealerships, General Motors itself has invested substantial funds. Therefore, said Roche, 'we would not want our people to go in and wave the franchise agreement, selling agreement, and threaten the dealer with termination in the event he didn't agree, after following—after reading a letter he was violating our agreement and should change his practice. Instead we expected that this would be handled on a sound, calm, sensible business-like approach.'
There are also statutory inhibitions on the right of an automobile manufacturer to terminate dealer franchises. See Act of Aug. 8, 1956, c. 1038, § 2, 70 Stat. 1125, 15 U.S.C. § 1222 (1964 ed.); Kessler & Stern, Competition, Contract, and Vertical Integration, 69 Yale L.J. 1, 103—114 (1959).
20
Compare Klein v. American Luggage Works, Inc., 323 F.2d 787 (C.A.3d Cir. 1963), and Graham v. Triangle Publications, Inc., 233 F.Supp. 825 (D.C.E.D.Pa. 1964), aff'd per curiam, 344 F.2d 775 (C.A.3d Cir. 1965), discussed in Fulda, Individual Refusals to Deal: When Does Single-Firm Conduct Become Vertical Restraint? 30 Law & Contemp.Prob. 590, 592-597 (1965).
21
The complaint in Klor's charged a violation of § 2 of the Sherman Act, as well as of § 1. In the present case, the Government did not charge the appellees under § 2, which provides that 'Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor * * *.' 15 U.S.C. § 2 (1964 ed.).
22
Evidence on this subject was admitted solely for the purpose of showing the dealers' state of mind, rather than to prove the existence of actual price-cutting by the discounters. But the collaborators' state of mind is of significance here.
23
In an inter-office memorandum, circulated among General Motors officials immediately prior to formulation of corporate policy vis-a -vis the discounters, it was stated that 'It would appear that one of the real hazards of condoning this type of operation is that discounted prices are freely quoted to a large portion of the public.' Moreover, we note that some discounters advertised that they would finance new-car purchases at an interest rate of 5 1/2%, a rate substantially lower than that available at franchised Chevrolet dealers through G.M.A.C., a subsidiary of General Motors Corporation. See n. 7, supra. Finally, it is conceded that General Motors is intensely concerned that each of its dealers has an adequate 'profit opportunity' (see Finding 17), a concern which necessarily involves consideration of the price realized by dealers.
| 78
|
384 U.S. 150
86 S.Ct. 1320
16 L.Ed.2d 429
Thomas A. WESTBROOKv.ARIZONA.
No. 1250, Misc.
Decided May 2, 1966.
W. Edward Morgan, for petitioner.
Darrell F. Smith, Atty. Gen. of Arizona, and Paul G. Rosenblatt, Asst. Atty. Gen., for respondent.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. Although petitioner received a hearing on the issue of his competence to stand trial, there appears to have been no hearing or inquiry into the issue of his competence to waive his constitutional right to the assistance of counsel and proceed, as he did, to conduct his own defense. 'The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused—whose life or liberty is at stake—is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.' Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70.
2
From an independent examination of the record, we conclude that the question whether this 'protecting duty' was fulfilled should be re-examined in light of our decision this Term in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836. Accordingly, the judgment of the Supreme Court of Arizona is vacated and the case is remanded to that court for proceedings not inconsistent herewith. It is so ordered.
3
Judgment vacated and case remanded.
| 34
|
384 U.S. 155
86 S.Ct. 1383
16 L.Ed.2d 434
TEXASv.UNITED STATES.
No. 1218.
Supreme Court of the United States
May 2, 1966
Waggoner Carr, Atty. Gen. of Texas, Hawthorne Phillips, First Asst. Atty. Gen., and Mary K. Wall, Asst. Atty. Gen., for appellant.
Solicitor General Marshall, for the United States.
PER CURIAM.
1
The motion to affirm is granted and the judgment is affirmed. Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079.
2
Mr. Justice BLACK dissents for the reasons given in his dissenting opinion in Harper v. Virginia State Board of Elections, supra.
3
Mr. Justice HARLAN, joined by Mr. Justice STEWART, dissents for the reasons given in his dissenting opinion in Harper v. Virginia State Board of Elections, supra.
| 12
|
384 U.S. 152
86 S.Ct. 1378
16 L.Ed.2d 431
Walter Francis RIGGANv.VIRGINIA.
No. 887.
Supreme Court of the United States
May 2, 1966
H. Clifford Allder, for petitioner.
Robert Y. Button, Atty. Gen. of Virginia, and M. Harris Parker, Asst. Atty. Gen., for respondent.
On Petition for Writ of Certiorari to the Supreme Court of Appeals of Virginia.
PER CURIAM.
1
The petition for a writ of certiorari is granted. The judgment is reversed. Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.
2
Mr. Justice CLARK, with whom Mr. Justice BLACK, Mr. Justice HARLAN, and Mr. Justice STEWART join, dissenting.
3
Probable cause for the issuance of the warrant in this case authorizing the search of apartment 604C, 3000 Spout Run Parkway, Arlington, Virginia, was based upon the recital in the affidavit of 'personal observation of the premises' by Officer Stover, the affiant, and 'information from sources believed by the police department to be reliable.'*
4
The Supreme Court of Appeals of Virginia found that Officer Stover had the apartment building at 3000 Spout Run Parkway under his personal surveillance in December 1962 and January 1963. During those months he saw the petitioner Riggan 'come and go' from the building. Riggan was known to the police, having been arrested in November 1962 on a charge of assault. That arrest was made at apartment 604C by Officer Hartel, who noticed telephones cut from their wires and placed in a closet, along with other suspicious circumstances. After he reported this to the police department, the vice squad, of which Officer Stover was a member, began to investigate activities on the premises. In addition to receiving this report, Officer Stover learned from two fellow police officers and two other informants, whom he believed to be reliable, that a lottery was being conducted from apartment 604C.
5
In view of these facts I do not see how this case can be controlled by Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). There the affidavit was based purely on hearsay. It was found inadequate under the rule applied in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), where a majority of the Court found that the complaint 'does not indicate any sources for the complainant's belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made.' At 486, 78 S.Ct. at 1250. The affidavit here not only alleged 'personal observation' but recited that the affiant had information from other reliable 'sources,' who were subsequently identified as police officers and private informants.
6
I therefore dissent.
*
It is interesting to note that an affidavit with allegations identical to those now in question was approved by the Virginia Supreme Court of Appeals in Tri-Pharmacy, Inc. v. United States, 203 Va. 723, 127 S.E.2d 89 (1962). We denied certiorari in Tri-Pharmacy in January 1963, 371 U.S. 962, 83 S.Ct. 542, 9 L.Ed.2d 509, before Aguilar but a month after the argument in Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), and during the same Term that the opinion in Ker was announced. In view of the fact that Ker is the first and leading case on the implementation of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), it is strange that we denied certiorari in Tri-Pharmacy at that time rather than holding the case until Ker was decided—if any problem of unreasonable search existed. It is stranger still that the Court now grants and reverses this case summarily without giving Virginia a chance to argue the legality of its affidavit, which it had every reason to think was sufficient.
| 01
|
384 U.S. 176
86 S.Ct. 1397
16 L.Ed.2d 456
SECURITIES AND EXCHANGE COMMISSION, Petitioner,v.NEW ENGLAND ELECTRIC SYSTEM et al.
No. 636.
Argued March 23, 1966.
Decided May 16, 1966.
Philip A. Loomis, Jr., Washington, D.C., for petitioner.
John R. Quarles, Boston, Mass., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
New England Electric System (NEES) is a holding company registered under § 5 of the Public Utility Holding Company Act of 1935.1 Its holdings include both electric and gas utility properties. The electric companies serve retail customers in New Hampshire, Massachusetts, Rhode Island, and Connecticut. The gas companies serve retail customers in Massachusetts alone.2 The Commission, proceeding under § 11 of the Act,3 held that the electric utility subsidiaries of NEES constituted an 'integrated electric utility system' as defined in s 2(a)(29)(A).4 38 S.E.C. 193. The question in this case does not concern these electric utility subsidiaries but only the gas utility subsidiaries of NEES, which both NEES and the Commission agree constitute an 'integrated gas utility system' within the meaning of § 2(a)(29) (B) of the Act.5
2
By § 11(b)(1)6 a holding company system is to be limited in operations by the Commission 'to a single integrated public-utility system,'7 provided, however, that it may be permitted to control one or more additional 'integrated public-utility systems' if the Commission finds, inter alia, that '(e)ach of such additional system cannot be operated as an independent system without the loss of substantial economies which can be secured by the retention of control by such holding company of such system.' § 11(b)(1)(A). (Italics supplied.) It is on the meaning of this proviso that the present controversy depends. The Commission found that divestment of NEES' gas utilities would not result in a 'loss of substantial economies' to these companies within the meaning of § 11(b)(1)(A). It construed Clause (A) to require a showing that the 'additional system cannot be operated under separate ownership without the loss of economies so important as to cause a serious impairment of that system.' The Commission ruled that it was unable 'to find that the gas companies could not be soundly and economically operated independently of NEES.' It found that any losses of economies would be offset by the benefits that would flow from the healthy competition between the independently controlled gas and electric companies, promotion of competition between gas utilities and electric utilities being an important purpose of the Act. Accordingly, it ordered that the gas utilities be divested.
3
On petition for review the Court of Appeals reversed on the ground that the Commission had misinterpreted the statutory phrase 'loss of substantial economies.' 346 F.2d 399. The court held that Clause (A) 'called for a business judgment of what would be a significant loss, not for a finding of total loss of economy or efficiency' (346 F.2d, at 406), and, believing that on this record and with the statute so interpreted there could have been a finding in favor of NEES, remanded the case to the Commission. We granted certiorari, 382 U.S. 953, 86 S.Ct. 436, 15 L.Ed.2d 358.
4
We agree with the Commission's reading of Clause (A) and remand the cause to the Court of Appeals so that there may be a review of the challenged order in light of the proper meaning of the statutory term.
5
The requirement in § 11 of a 'single integrated' system is the 'very heart' of the Act.8 The retention of an 'additional' integrated system is decidedly the exception.9 As originally passed by the Senate, § 11 would have limited all registered holding companies to a single 'geographically and economically integrated public-utility system.'10 The House version differed in that it permitted the Commission to make exceptions where limitation of the operations of the holding company was not found to be 'in the public interest.'11 The version with which we deal emerged from a conference committee. The scope of the exception as it appears in the bill's final form was thus explained to the House:
6
'Section 11 of both bills (i.e. the House and Senate versions), therefore, authorizes the Securities and Exchange Commission to require a holding company to limit its control over operating utility companies to one integrated public-utility system.
7
'The conference substitute meets the House desire to provide for further flexibility by the statement of additional definite and concrete circumstances under which exception should be made to the form of one integrated system. * * *
8
'The substitute, therefore, makes provision to meet the situation where a holding company can show a real economic need on the part of additional integrated systems for permitting the holding company to keep these additional systems * * *.' H.R.Rep.No. 1903, 74th Cong., 1st Sess., 70—71. (Italics supplied.)
9
Additional light is shed on the purpose of § 11 by the remarks of Senator Wheeler, a member of the conference committee:
10
'Since both bills accepted the proposition that a holding company should normally be limited to one integrated system, my colleagues and I conceived it to be our task to find what concrete exceptions, if any, could be made to this rule that would satisfy the demand of the House for some greater flexibility. After considerable discussion the Senate conferees concluded that the furthest concession they could make would be to permit the Commission to allow a holding company to control more than one integrated system if (among other tests) the additional systems were in the same region as the principal system and were so small that they were incapable of independent economical operation * * *.' 79 Cong.Rec. 14479. (Italics supplied.)
As the Commission said in 1948:
11
'The legislative history of Section 11(b)(1) indicates that it was the intent of Congress to create only a limited exception to the general rule confining holding companies to a single system, and that this exception was created to deal with the situation in which the proven inability of the additional system to stand by itself would result in substantial hardship to investors and consumers were its relationship with the holding company terminated.' Philadelphia Co., 28 S.E.C. 35, 46.
12
While the Commission has variously phrased the rule, it has consistently adhered to that view.12
13
This suggests a much more stringent test than 'a business judgment of what would be a significant loss,' to quote the Court of Appeals. 346 F.2d, at 406. Promotion of 'economy of management and operation' and 'the integration and coordination of related operating properties' (§ 1(b)(4), 49 Stat. 804, 15 U.S.C. § 79a(b)(4) (italics supplied)) is a theme that runs throughout the Act. But so does the theme of elimination of 'restraint of free and independent competition.'13 § 1(b)(2), 49 Stat. 803—804, 15 U.S.C. § 79a(b)(2). One of the evils that had resulted from control of utilities by holding companies was the retention in one system of both gas and electric properties and the favoring of one of these competing forms of energy over the other.14
14
In the present case the Commission said on this phase of the controversy:
15
'Although the NEES Gas Division handles sales and promotional activities and various other matters for the gas subsidiaries separately from the electric companies, final authority on all important matters rests in the top NEES management. The basic competitive position that exists between gas and electric utility service within the same locality is affected by such vital management decisions as the amount of funds to be raised for or allocated to the expansion or promotion of each type of service.'15
16
Competitive advantages to be gained by a separation are difficult to forecast. The gains to competition might well be in the public interest and might well offset the estimated loss in economies of operation16 resulting from a separation of the gas properties from the utility system. This is a matter for Commission expertise on the total competitive situation, not merely on a prediction whether, for example, a gas company in a holding company system may make more for investors than a gas company converted into an independent regime.
17
The phrase 'without the loss of substantial economies' is admittedly not crystal clear. But the Commission's construction seems to us to be well within the permissible range given to those who are charged with the task of giving an intricate statutory scheme practical sense and application. Power Reactor Development Co. v. International Union of Electricians, etc., 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924. And see Philadelphia Co. v. SEC, 85 U.S.App.DC. 327, 177 F.2d 720, 725.
18
Reversed and remanded.
19
Mr. Justice HARLEN, whom Mr. Justice STEWART joins, dissenting.
20
The question before the Court is the meaning of the phrase 'loss of substantial economies' as it appears in § 11(b)(1) of the Public Utility Holding Company Act of 1935.1 The Court of Appeals ruled that the phrase 'called for a business judgment of what would be a significant loss,' 346 F.2d, at 406, and I agree with this rendering which is both sensible and, in my view, obvious. This Court's opinion on the other hand seems to hold that the phrase demands a loss great enough to imperil 'sound' corporate operations.2 That holding, as I shall indicate, is at odds with the Act's wording, has little basis in legitimate statutory history or the aims of the Act, and cannot be sustained by agency or judicial precedent.
21
Inquiry naturally begins with the language of the Act, and with our reiterated principle that 'the words of statutes * * * should be interpreted where possible in their ordinary, everyday senses.' Crane v. Commissioner, 331 U.S. 1, 6, 67 S.Ct. 1047, 1051, 91 L.Ed. 1301; Malat v. Riddell, 383 U.S. 569, 571, 86 S.Ct. 1030, 1032, 16 L.Ed.2d 102. In this instance plainly the normal meaning of 'substantial economies' is a significant amount of money and not that amount, whatever its size, which guarantees corporate survival. The first reading would be given by lawyers and laymen alike automatically while the second could hardly be imagined without the prompting of persuasive legislative evidence. If Congress had intended the Court's test to govern, it could easily have said so in shorter space and with far greater precision.3 In addition, the Court's decision will apparently result in 'substantial economies' being read its way in § 11(b)(1) but in a quite different, more normal fashion where the same phrase appears in § 2(a)(29)(B), defining an integrated gas utility system (see ante, n. 4, of the Court's opinion). None of this is to say that the many subtle choices to be made in deciding what is a substantial sum in the present context are dictated by the terse language of the Act. See infra, n. 11. The choice here, however, is between two broad approaches, and the Act's language invites the first and repels the second.
22
If the natural reading produced some strange or arbitrary result there might be reason to hesitate; but in this case the literal reading makes excellent sense in serving the very rational and desirable end of financial economy. The Congress that passed the Act had been importantly concerned with the 'intensification of economic power beyond the point of proved economies * * *.' H.R.Doc. No. 137, 74th Cong., 1st Sess., 4; see §§ 1(b)(4), (5) of the Act, 15 U.S.C. §§ 79a(b)(4), (5) (1964 ed.) (policy statement), and the Act itself bristles with provisions aimed largely at attaining efficient management and operations. See §§ 7(d)(3), 10(c)(2), 12(d), (f), (g), 13, 15 U.S.C. §§ 79g(d)(3), 79j(c)(2), 79l(d), (f), (g), 79m (1964 ed.). With this background, nothing could be more plausible than to curtail divestiture at the point where the prospect of substantial losses removed a prime reason for having divestiture at all. There are to be sure other dangers in proliferated growth besides diseconomy, dangers which played their part in the passage of the Act, but there are also other clauses of § 11(b)(1) whose conditions must be met before the exception is allowed (see supra, n. 1). In sum, it seems clear enough that the burden of persuasion rests upon those who would displace the Court of Appeals' interpretation.4
23
Legislative history and purpose, heavily relied on by the Court, furnish no reason for departing from the natural reading of the Act. There was very little direct explanation of the 'substantial economies' provision in Congress; the majority opinion sets out in full the two important statements, one by the House Conference Committee (ante, p. 180-181) and the other by Senator Wheeler (ante, p. 181).5 The Committee Report, highly authoritative but unilluminating, says merely that there must be 'a real economic need' to justify retention of an additional system. Indisputably, substantial savings can be labeled a real economic need, the more so since Congress was sharply concerned with the lack of economic justification for many utility combinations. That the Committee's language is also compatible with the SEC's reading of 'substantial economies' does no more than make that language a useless guidepost.
24
Senator Wheeler's statement, by contrast, does support, if indeed it is not the source of, the SEC interpretation, and normally the view of a principal sponsor of an Act carries heavy weight. Here, however, Senator Wheeler made his remarks after the bill had finally passed both Houses, and quite arguably '(t)he views of individual members of the legislature as to the meaning of a statute which were not officially communicated to the legislature prior to its enactment are not competent to be considered in determining the meaning which ought to be attributed to the statute.' Hart & Sacks, The Legal Process 1285 (tent. ed. 1958, Harvard Univ.). Moreover, in this instance Senator Wheeler had been a fierce opponent of allowing any exception at all to the one-system principle, see 346 F.2d, at 403, and had excellent reason to minimize severely the scope of the present provision when to do so could no longer cost the Act votes. The SEC itself in its early days, before the elevation of the Wheeler statement to its present exaggerated importance, took a far more guarded view of its worth.6
25
To support its construction of the 'substantial economies' provision, the Court also relies on two general policies attributed to the Act as a whole. It is initially emphasized that the Act's overriding aim was to confine holding companies to a single integrated system while control of additional systems was to be 'decidedly the exception' (ante, p. 180). The mild but misleading inference is that the 'exception' is some minor, little noticed addendum, to be strictly construed. In truth, the original, more stringent version of § 11, popularly known as the 'death sentence' provision, was bitterly opposed and the 'ABC' clauses exception with Clause A of which we now deal (supra, n. 1) was adopted as a considered compromise between quite different House and Senate versions. See Ritchie, Integration of Public Utility Holding Companies 16—19, 151 (1954). The ABC clauses represent part of the price openly paid for enactment, and there is no basis in these events for a grudging interpretation.7
26
Far more weight is given by the Court's opinion to the Act's supposed hostility toward common control of gas and electric utility systems with its danger of stifled competition. First of all, this hostility appears to be an illusion. The House and Senate Committees in identical language expressly stated that common ownership of competing forms of energy was 'a field which is essentially a question of State policy'; the present § 8, 15 U.S.C. § 79h (1964 ed.), was enacted to support this approach by using federal power to limit common ownership only where it is contrary to state law. See S.Rep.No. 621, 74th Cong., 1st Sess., 29—30; H.R.Rep.No. 1318, 74th Cong., 1st Sess., 14—15.8 In its decision in this very case the SEC stated: 'We do not take the view that the Act expresses a federal policy against combined gas and electric operations as such.' Holding Company Act Release No. 15035, p. 15. This was apparently so clear at the time the Act passed that in an early and now-repudiated decision the SEC went so far as to hold that gas and electric companies could be combined in the same single integrated public utility system. American Water Works & Elec. Co., 2 S.E.C. 972 (1937).
27
Furthermore, a constricted reading of the 'substantial economies' provision is a quite unsuitable way of responding to the dangers in common ownership of competing types of utilities. The provision is equally intended to govern common control of two or more gas systems or two or more electric systems and, at least in the abstract, the Court's reading will hinder those arrangements as well though its rationale is irrelevant to them. If the SEC is prepared to show that freeing a gas system from control by an electric system will improve earnings by some amount, then this may be a legitimate offset to the losses that can be shown, and there is leeway for rough calculations and for estimates based on studying past separations. See Ritchie, Integration of Public Utility Holding Companies 143—147 (1954). But to dispense with proof and disregard the basic test of 'substantial economies' is to undo Congress' own careful compromise of the various conflicting policy interests.9
28
There remains to be answered only the Court's claim that its reading of the statute is 'supported by consistent administrative practice' (ante, p. 182, n. 12). Analysis of the SEC decisions shows that the Court is mistaken. The first important construction of 'substantial economies' came in North American Co., 11 S.E.C. 194, decided in 1942 only seven years after the Act took effect. Rejecting the assertion that any saving beyond a wholly nominal one would do, the SEC stated: 'The normal and usual meaning of the word 'substantial' is a meaning connoting 'important.' And we think that this normal and usual meaning is compelled here.' Id., at 209. At least four subsequent decisions cite North American and adopts its 'importance' test, a natural reading of the Act rather the unusual and specialized one adopted today. Cities Serv. Power & Light Co., 14 S.E.C. 28, 37 (1943); Middle West Corp., 15 S.E.C. 309, 319 (1944); Cities Serv. Co., 15 S.E.C. 962, 984 (1944); American Gas & Elec. Co., 21 S.E.C. 575, 597 (1945). Also during this first decade of the Act's enforcement two decisions, including one just cited, said that inability to operate independently was 'one of the guides which (among others) Congress intended to be used * * *.' Cities Serv. Power & Light Co., 14 S.E.C. 28, 62 (1943); Commonwealth & Southern Corp., 26 S.E.C. 464, 489 (1947). In one other case the SEC stated the loss must be one which would 'seriously impair * * * effective operations.' Engineers Pub. Serv. Co., 12 S.E.C. 41, 61 (1942).
29
The majority opinion says that the respondent 'concedes' that the Commission has since 1948 articulated its present test, and three SEC decisions are then cited (ante, p. 182, n. 12). But with the Engineers case just cited as a possible addition, these are the only three decisions until the present one to state the Court's test out of the 15 or more decisions applying § 11(b)(1), taking the ones already mentioned with those that established no test. Furthermore, the respondent asserts that the three SEC decisions stating its present test involved a very small percentage of the assets it has ordered divested, and even in those three cases it is not clear that the test was determinative. Brief, pp. 47—48. In sum, whether or not the SEC's early decisions may be said actually to refute the test now urged, certainly there is no consistent administrative practice lending it any real weight. Before leaving precedent, it should also be noted that the First and Fifth Circuits have squarely rejected the SEC's present interpretation and that the Second Circuit has approved its 'importance' gloss, while only the District of Columbia Circuit has upheld the present reading.10
30
To conclude, I think it should be noted that the Court's departure from the statute is not just an abstract legal error but does immediate, tangible harm in a most practical sense. The annual losses which respondent has forecast for its gas system because of separation exceed $1,000,000, a figure the SEC has questioned in part but not yet properly considered. The respondent's analysis also shows annual losses of $800,000 for the electrical system, although the SEC deems irrelevant losses to the primary system and the Court of Appeals did not reach this issue. The heavy losses in this case will presumably be borne by investors and consumers if the figures are accurate and separation occurs; it is noteworthy that the Massachusetts Department of Public Utilities appeared at the hearings in this case to oppose divestiture. The SEC has wide latitude in deciding how to gauge and compute 'substantial economies' and it has used that freedom in the past.11 What the Commission has no right to do, however, is to substitute to the detriment of business interests and the public alike a quite different standard for the one enacted by Congress. Neither does this Court have that right. I would affirm the Court of Appeals' well considered decision.
1
49 Stat. 812, 15 U.S.C. § 79e (1964 ed.).
2
NEES, the electric companies, and the gas companies are all parties respondent and are hereafter referred to as respondent.
3
49 Stat. 820, 15 U.S.C. § 79k (1964 ed.).
4
49 Stat. 810, 15 U.S.C. § 79b(2)(29)(A) (1964 ed.). An 'integrated public-utility system' as applied to electric utility companies is defined by § 2(a)(29)(A) as 'a system consisting of one or more units of generating plants and/or transmission lines and/or distributing facilities, whose utility assets, whether owned by one or more electric utility companies, are physically interconnected or capable of physical interconnection and which under normal conditions may be economically operated as a single interconnected and coordinated system confined in its operations of a single area or region, in one or more States, not so large as to impair (considering the state of the art and the area or region affected) the advantages of localized management, efficient operation, and the effectiveness of regulation.'
5
49 Stat. 810, 15 U.S.C. § 79b(a)(29)(B) (1964 ed.). An 'integrated public-utility system' as applied to gas utility companies is defined by § 2(a) (29)(B) as 'a system consisting of one or more gas utility companies which are so located and related that substantial economies may be effectuated by being operated as a single coordinated system confined in its operations to a single area or region, in one or more States, not so large as to impair (considering the state of the art and the area or region affected) the advantages of localized management, efficient operation, and the effectiveness of regulation.'
6
49 Stat. 820, 15 U.S.C. § 79k(b)(1) (1964 ed.).
7
The Commission has long held that a single 'integrated public-utility system' cannot include both gas and electric properties. See Columbia Gas & Electric Corp., 8 S.E.C. 443, 462 463; The United Gas Improvement Co., 9 S.E.C. 52, 77—83; Philadelphia Co., 28 S.E.C. 35, 44. Respondent does not contest this aspect of the Commission's reading of the Act.
8
North American Co. v. SEC, 327 U.S. 686, 704, n. 14, 66 S.Ct. 785, 795, 90 L.Ed. 945; S.Rep. No. 621, 74th Cong., 1st Sess., 11.
9
North American Co. v. SEC, supra, at 696—697, 66 S.Ct. at 792.
10
S. 2796, § 11(b), 74th Cong., 1st Sess. And see S.Rep. No. 621, 74th Cong., 1st Sess., 32.
11
S. 2796, § 11(b), as passed by the House of Representatives, and sent to the Senate on July 9, 1935. And see H.R.Rep. No. 1318, 74th Cong., 1st Sess., 17.
12
Respondent concedes that the Commission has, since 1948, 'articulated' a test 'like the present test'. See Philadelphia Co., 28 S.E.C. 35, 46—47, 53—74; General Public Utilities Corp., 32 S.E.C. 807, 814—815, 826—827, 831; Middle South Utilities, Inc., 35 S.E.C. 1, 11—13. Respondent contends, however, that previous decisions of the Commission applied a less restrictive standard of 'substantial economies.' The Commission disagrees, urging that while there was 'some variation in choice of words,' it has maintained a basically consistent position and that any semantic differences are due largely to 'the varying contentions with which the Commission was dealing.' The cases referred to are North American Co., 11 S.E.C. 194, 208—213; Engineers Public Service Co., 12 S.E.C. 41; Cities Service Power & Light Co., 14 S.E.C. 28, 37; Middle West Corp., 15 S.E.C. 309, 319; Cities Service Co., 15 S.E.C. 962, 984; American Gas & Electric Co., 21 S.E.C. 575, 596—597. We do not read those cases as being inconsistent with the Commission's position since 1948. In each of these cases the Commission found no showing of 'substantial economies' under whatever test might be applied; thus it was not there compelled to go further. There are, to be sure, a few cases in which the Commission permitted retention of small additional systems on the ground that the requirements of § 11(b)(1) were met; in these, however, the Commission did not articulate any standard. See, e.g., Federal Light & Traction Co., 15 S.E.C. 675, 683; Republic Service Corp., 23 S.E.C. 436, 451. But cf. North American Co., 11 S.E.C. 194, 243—244.
We cannot say that these early decisions show any clear inconsistency with the standard which the Commission today applies, and has applied since 1948. Under these circumstances, we feel justified in regarding the Commission's reading of the statute as supported by consistent administrative practice.
13
Section 1(b) provides '* * * (I)t is hereby declared that the national public interest, the interest of investors in the securities of holding companies and their subsidiary companies and affiliates, and the interest of consumers of electric energy and natural and manufactured gas, are or may be adversely affected * * * (2) when subsidiary public-utility companies are subjected to excessive charges for services, construction work, equipment, and materials, or enter into transactions in which evils result from an absence of arm's-length bargaining or from restraint of free and independent competition; * * *.' (Italics supplied.)
14
See S.Rep. No. 621, 74th Cong., 1st Sess., 29; Report of National Power Policy Committee, H.R.Doc. No. 137, 74th Cong., 1st Sess., 10 (Appendix to S.Rep. No. 621, 74th Cong., 1st Sess.).
Congress was well aware of the anti-competitive potential of corporate structures through which control of gas and electric utility companies rests under the umbrella of a single holding company. That a holding company so situated might retard expansion of the gas utility company in favor of the electric utility company was expressly discussed in the Senate Hearings on an earlier version of the Act. See Hearings before the Senate Committee on Interstate Commerce on S. 1725, 74th Cong., 1st Sess., 783.
Congress made specific provision in § 8 of the Act to prohibit a registered holding company from acquiring an interest in both an electric and a gas utility serving the same territory in a State which prohibits common control, without first obtaining permission from the appropriate state regulatory agency. While § 8 reflects the concern of Congress with this aspect of competition (see S.Rep. No. 621, supra, at 29—30; Report of National Power Policy Committee, supra, at 10), there is no warrant for concluding that § 8 was the exclusive legislative effort relating to the problem. The history of the Act reflects the presence of a sophisticated statutory scheme. To some extent, local policy was expected to govern, with § 8 serving to prevent circumvention of that policy by use of the 'extra-State device of a holding company.' S.Rep. No. 621, supra, at 29—30. At the same time, § 11 was expected to assist in imposing restrictions with regard to the combination of gas and electricity in one system. Discussing the interplay between § 8 and § 11, the Senate Committee noted that § 8 only applied to future acquisitions: 'The committee felt that while the policy upon which this section was based was essential in the formulation of any Federal legislation on utility holding companies, it did not think that the section should make it unlawful to retain (up to the time that section 11 may require divestment) interests in businesses in which the companies were lawfully engaged on the date of the enactment of the title.' Id., at 7. (Italics supplied.)
15
By fostering competition between gas and electric utility companies, the Act promotes what has been described as 'variegated competition.' Hearings before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., pt. 2, 840 (1965) (statement of Dr. Samuel M. Loescher). 'But since the distribution of electricity, following geographical divorcements, was to remain a natural monopoly in every region, the only kind of competition to be enhanced was that of 'variegated competition." Ibid.
16
See, e.g., Hearings before House Committee on Interstate and Foreign Commerce on H.R. 5423, 74th Cong., 1st Sess., 1249, 1402—1403, 1530—1531, 2257—2277; Hearings before Senate Committee on Interstate Commerce on S. 1725, 74th Cong., 1st Sess., 65. It was only the loss of 'substantial economies' that Congress thought would justify an exception from the separation rule of § 11.
1
49 Stat. 820, 15 U.S.C. § 79k(b)(1). This subsection provides that a holding company shall be limited to 'a single integrated public-utility system,' provided that the Commission shall permit control of additional systems if:
'(A) Each of such additional systems cannot be operated as an independent system without the loss of substantial economies which can be secured by the retention of control by such holding company of such system;
'(B) All of such additional systems are located in one State, or in adjoining States, or in a contiguous foreign country; and
'(C) The continued combination of such systems under the control of such holding company is not so large (considering the state of the art and the area or region affected) as to impair the advantages of localized management, efficient operation, or the effectiveness of regulation.'
2
I say 'seems' to hold both because two statements in the opinion (ante, pp. 179, 184-185) emphasize a supposed offsetting economic saving to be found in divestiture and because the SEC has stated the test in this case in varying terms.
3
This could in fact have been accomplished simply by chopping off the last half of the present, controlling clause (supra, n. 1), leaving the condition to read '(e)ach of such additional systems cannot be operated as an independent system' and omitting wholly the qualifying language which begins 'without the loss of substantial economies.'
4
'It * * * (is) wrong to deny the natural meaning of language its proper primacy; like Cardozo's 'Method of Philosophy,' it 'is the heir presumptive. A pretender to the title will have to fight his way." Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Felix Frankfurter: The Judge 40 (1964).
5
One other legislative comment on the provision favors the Commission, 79 Cong.Rec. 14165—16166 (remarks of Mr. Cooper), but the Court of Appeals properly disregarded it as an opponent's attempt to blacken the Act, cf. National Labor Relations Board v. Fruit and Vegetable Packers and Warehousemen, Local 760, 377 U.S. 58, 66, 84 S.Ct. 1063, 1068, 12 L.Ed.2d 129, and the SEC no longer relies upon it in its brief.
6
The statement was quoted as cumulative, minor evidence on another matter in 1941, the SEC admitting that it 'may not strictly be considered part of the legislative history' but saying it deserved 'some consideration.' Engineers Pub. Serv. Co., 9 S.E.C. 764, 782—783. In 1942, it was quoted as bearing on the present question but its test was not adopted. North American Co., 11 S.E.C. 194, 209. The following year the statement was thought to reveal 'one' of the various criteria to be used along with others. Cities Serv. Power & Light Co., 14 S.E.C. 28, 62.
7
For its 'decidedly the exception' characterization, the Court cites (ante, p. 180, n. 9) North American Co. v. SEC, 327 U.S. 686, 66 S.Ct. 785. That decision imparted no such gloss to the ABC clauses but gave a most cursory summary in passing on the constitutionality of § 11(b)(1).
8
The Court's opinion (ante, p. 184, n. 14) quotes from p. 7 of the above-cited Senate report, borrowing from its language that suggests § 11 was forwarding the same policy as § 8. What the Court overlooks is that this discussion was directed to an earlier and very different version of § 8, in which it also embodied other restrictions on holding company ownership having nothing to do with common control of gas and electricity, but closely related to § 11's policy of federally imposed simplification. A reading of the Court's quotation in context along with the relevant version of S. 2796, 74th Cong., 1st Sess., §§ 8, 11 (as reported on May 13, 1935), will quickly show that its reliance is misplaced. The majority's other citations in the same footnote are also infirm. The first two citations are statements on behalf of the rule that is now § 8, which allows the States to decide the issue. The remaining citation to the Senate Hearings does indeed reveal one Senator's general concern with common ownership's impact on competition; the respondent states it is 'the only such reference in the entire Senate hearing.' Brief, p. 37, n. 45.
9
It should again be remembered also that the present provision is not the only legislative safeguard. Even to obtain ownership over two systems, a holding company must, along with proving 'substantial economies,' show that there is geographical unity and that the combination is not so large as to impair 'the advantages of localized management, efficient operation, or the effectiveness of regulation' (supra, n. 1). Section 8 (supra, p. 190) acts as a further restraint in some cases. Other sections of the Act regulate transactions between utility companies and require disclosure of reports and maintenance of accounting data and other records. §§ 12(f) 13(a), 14, 15, 15 U.S.C. §§ 79l(f), 79m(a), 79n, 79o (1964 ed.).
10
The Fifth Circuit case is Louisiana Pub. Serv. Comm'n v. SEC, 235 F.2d 167. It was reversed here on jurisdictional grounds, 353 U.S. 368, 77 S.Ct. 855, 1 L.Ed.2d 897, which does not of course impair statement on the merits. The Second Circuit decision is North American Co. v. SEC, 133 F.2d 148, aff'd on constitutional questions, 327 U.S. 686, 66 S.Ct. 785, 90 L.Ed. 945. The District of Columbia decision is Philadelphia Co. v. SEC, 85 U.S.App.D.C. 327, 177 F.2d 720; that court thought it was following its earlier two-to-one decision in Engineers Pub. Serv. Co. v. SEC, 78 U.S.App.D.C. 199, 138 F.2d 936, cert. granted, 322 U.S. 723, 64 S.Ct. 1273, 88 L.Ed. 1561, vacated as moot, 332 U.S. 788, 68 S.Ct. 96, 92 L.Ed. 370, but Engineers is ambiguous.
11
Among examples—and I do not mean to approve or disapprove the ones I cite—are SEC rulings that as noted it will not consider losses to the principal system, General Pub. Utils. Corp., 32 S.E.C. 807, 838—839 (1951); that it will not consider tax losses as a very significant factor, Cities Serv. Co., 15 S.E.C. 962, 985 (1944); that it will give only limited weight to capital costs of divestiture, Eastern Utils. Associates, 31 S.E.C. 329, 349 (1950); and that it will offset predicted gains resulting from separation against the losses, North American Co., 18 S.E.C. 611 (1945).
| 78
|
384 U.S. 202
86 S.Ct. 1394
16 L.Ed.2d 474
The PURE OIL COMPANY, Petitioner,v.Pascual SUAREZ.
No. 692.
Argued April 19, 1966.
Decided May 16, 1966.
Eberhard P. Deutsch, New Orleans, La., for petitioner.
Arthur Roth, Miami, Fla., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Respondent Suarez is a seaman who was employed on S.S. Pure Oil, owned and operated by petitioner, Pure Oil Company. Suarez brought this action against the company in the United States District Court for the Southern District of Florida to recover damages for personal injuries allegedly suffered in the course of his employment. He sued in negligence under the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688 (1964 ed.), and alternatively on the theory that the vessel was unseaworthy. The Pure Oil Company moved to transfer the case to the Northern District of Illinois on the ground that venue was improper in Florida. The District Court denied the motion, certifying the question of venue for interlocutory appeal to the Court of Appeals under 28 U.S.C. § 1292(b) (1964 ed.). That court affirmed the ruling of the District Court, 346 F.2d 890. Certiorari was granted, 382 U.S. 972, 86 S.Ct. 549, 15 L.Ed.2d 464, in order to determine whether the decision below is inconsistent with this Court's decision in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 77 S.Ct. 787, 1 L.Ed.2d 786, and to resolve a conflict among the circuits on that score.1 We do not find the Fourco case controlling, and affirm the judgment of the Court of Appeals.
2
The Jones Act, which ultimately governs the venue issue before us,2 contains the following provision:
3
'Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.' 46 U.S.C. § 688.
4
Preliminarily it should be noted that although this provision is framed in jurisdictional terms, the Court has held that it refers only to venue, Panama R. Co. v. Johnson, 264 U.S. 375, 44 S.Ct. 391, 68 L.Ed. 748. It is conceded that as enacted and originally interpreted the statute would not authorize Florida venue in this instance, for corporate residence traditionally meant place of incorporation, in this case Ohio, and Pure Oil's principal office is in Illinois. The Court of Appeals held, however, that residence had been redefined by the expanded general venue statute, 28 U.S.C. § 1391(c) (1964 ed.), passed in 1948. That statute provides:
5
'A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.' (Emphasis added.)
6
If this definition of residence is applicable to the Jones Act venue provision, it is conceded that the action was properly brought in Florida, where Pure Oil has transacted a substantial amount of business. We hold that this definition does so apply and that venue in Florida was proper.
7
The effect of § 1391(c) was to broaden the general venue requirements in actions against corporations by providing a forum in any judicial district in which the corporate defendant 'is doing business.' See Moore, Commentary on the Judicial Code 193 194 (1949); 1 Barron & Holtzoff, Federal Practice and Procedure § 80, at 386 (Wright rev. 1960). It seems manifest that this change was made in order to bring venue law in tune with modern concepts of corporate operations.3 The question here involves the reach of these changes. The redefinition of corporate residence clearly touches the general diversity and federal-question venue provisions of §§ 1391(a) and (b). Although there is no elucidation from statutory history as to the intended effect of § 1391(c) on special venue provisions, the liberalizing purpose underlying its enactment and the generality of its language support the view that it applies to all venue statutes using residence as a criterion, at least in the absence of contrary restrictive indications in any such statute.
8
This view of § 1391(c) is basically consistent with the purposes and language of the Jones Act, whose thrust was not primarily directed at venue, but rather at giving seamen substantive rights and a federal forum for their vindication. In so doing, it provided a more generous choice of forum than would have been available at that time under the general venue statute. Compare Act of March 3, 1911, c. 231, §§ 50, 51, 36 Stat. 1101. Though one aspect of the special venue provision was phrased in terms of 'residence,' which as applied to a corporate employer was then generally understood to mean the place of incorporation, see In re Keasbey & Mattison Co., 160 U.S. 221, 229, 16 S.Ct. 273, 275, 40 L.Ed. 402, the statute also permitted suit in the district where the principal office of the employer was located. See p. 203, supra. Moreover, there is nothing in the legislative history of this provision of the Jones Act4 to indicate that its framers meant to use 'residence' as anything more than a referent to more general doctrines of venue rules, which might alter in the future.5
9
The sole authority that might be thought to stand in the way of reading the Jones Act to embrace the residence definition of § 1391(c) is Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 77 S.Ct. 787. A consideration of the setting in which that decision was made reveals that it must be taken as limited to the particular question of statutory construction presented there. Fourco concerned the interrelation of § 1391(c) and the special venue provision governing patent infringement suits, 28 U.S.C. § 1400(b) (1964 ed.). The Court held that the new definition of residence in § 1391(c) was not carried over into § 1400(b). This holding, however, was based on factors inapplicable to the case before us today.
10
First, the patent venue section at issue in Fourco was itself revised in 19486 in the same Act that contained § 1391(c). Fourco did not directly concern itself with the scope of § 1391(c). Rather, the Court inquired into the evidence revealing congressional purpose with respect to changes in § 1400(b), and concluded that Congress wished it to remain in substance precisely as it had been before the revision. This legislative background of § 1400(b) is of no relevance of course to a determination of the effect of § 1391(c) on the Jones Act, for the latter's venue provision was not reenacted contemporaneously with § 1391(c). Thus, there is nothing to show a congressional purpose negativing the more natural reading of the two venue sections together.
11
Second, the decision in Fourco relied heavily on the revisers' purpose to maintain § 1400(b) as it had been interpreted in Stonite Prods. Co. v. Melvin Lloyd Co., 315 U.S. 561, 62 S.Ct. 780, 86 L.Ed. 1026. In Stonite this Court recognized that there were particular reasons why Congress had passed the predecessor of § 1400(b). Confusion had been engendered by judicial decisions holding that patent infringers could be sued wherever they might be found, even though a newly enacted general venue statute of 1887 provided more limited venue. See 315 U.S., at 563—565, 62 S.Ct. at 781, 782. The patent infringement venue statute was enacted in 1897, 29 Stat. 695, specifically to narrow venue in such suits. This Court in Fourco, after determining that the 1948 revision of § 1400(b) was meant to introduce no substantive change in the provision, was merely following the purpose and letter of the original enactment.
12
The Jones Act venue provision presents quite a different history. As a minor provision in a major substantive enactment, no particular attention was directed to its terms; indeed, the venue provision was first presented in the report of the House-Senate Conference Committee, see H.R.Rep. No. 1107, 66th Cong., 2d Sess., 19—20 (1920), and was apparently never discussed in committee reports or on the floor of either House. Thus, it is unlikely that the Congress meant to infuse the concept of corporate residence with any special meaning that should remain impervious to changes in standards effected by more general venue statutes. Moreover, it can be said with reasonable certainty that the provision was intended to liberalize venue, see, supra, p. 205, unlike the patent infringement rule which was meant to constrict it. We conclude that here, in contrast to the situation dealt with in Fourco, the basic intent of the Congress is best furthered by carrying the broader residence definition of § 1391(c) into the Jones Act.
13
Affirmed.
1
Compare the Third Circuit's decision in Leith v. Oil Transport Co., 321 F.2d 591, with the Fourth Circuit's decision in Fanning v. United Fruit Co., 355 F.2d 147, which followed the Fifth Circuit's decision in the present case.
2
The Court of Appeals stated that the Jones Act venue provision must be met if, as here, an action is based on both unseaworthiness and the Jones Act, 346 F.2d, at 891. Because of our disposition of the case we find no occasion to pass upon this issue, which was not raised in this Court.
3
As the Court of Appeals stated in Transmirra Prods. Corp. v. Fourco Glass Co., 2 Cir., 233 F.2d 885, 887, 'The rationale of this sharp break with ancient formulae is quite obviously a response to a general conviction that it was 'intolerable if the traditional concepts of 'residence' and 'presence' kept a corporation from being sued wherever it was creating liabilities." Although this Court reversed in Fourco, supra, for reasons discussed later (infra, pp. 206—207), the validity of this general observation was in no way questioned.
4
Section 688 was enacted as § 33 of the Merchant Marine Act, 1920, 41 Stat. 1007. The Act was primarily concerned with the creation and maintenance of a national merchant marine fleet. The substantive part of § 33, dealing with seamen's relief, was introduced in the Senate as an amendment to the House bill, and was passed without discussion. 59 Cong.Rec. 7044 (1920). The venue provision was added by the House-Senate Conference Committee, see H.R.Rep. No. 1107, 66th Cong., 2d Sess., 19—20 (1920).
5
We do not think these conclusions are vitiated by the fact that application of the wider residence definition of § 1391(c) to the Jones Act makes the alternative 'principal office' venue provision of the latter statute superfluous as regards corporate employers. That provision continues to serve its original purpose when the defendant employer is not a corporation. Nor does the § 1391(c) provision come into conflict with 'principal office,' unless that provision is deemed to have been restrictive in its origins, a proposition for which no support can be found.
6
It reads: 'Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.'
| 89
|
384 U.S. 195
86 S.Ct. 1407
16 L.Ed.2d 469
Steve ASHTON, Petitioner,v.KENTUCKY.
No. 619.
Argued April 28, 1966.
Decided May 16, 1966.
Ephraim London, New York City, for petitioner.
John Browning, Frankfort, Ky., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner was sentenced to six months in prison and fined $3,000 for printing a pamphlet found to be prohibited by the common law of criminal libel in Kentucky. The Kentucky Court of Appeals, with three judges dissenting, affirmed petitioner's conviction. Ky., 405 S.W.2d 562. We granted certiorari (382 U.S. 971, 86 S.Ct. 537, 15 L.Ed.2d 464) and reverse.
2
Petitioner went to Hazard, Kentucky, in 1963, where a bitter labor dispute raged, to appeal for food, clothing and aid for unemployed miners. The challenged pamphlet, which had a limited circulation, stated concerning Sam L. Luttrell, Chief of Police of Hazard:
3
'Six weeks ago I witnessed a plot to kill the one pro-strike city policeman on the Hazard Force. Three of the other cops were after him while he was on night-duty. It took 5 pickets guarding him all night long to keep him from getting killed, but they could not prevent him from being fired, which he was three weeks ago. Another note on the City Police: The Chief of the force, Bud Luttrell, has a job on the side of guarding an operator's home for $100 a week. Its against the law for a peace officer to take private jobs.'
4
It said concerning Charles E. Combs, the Sheriff:
5
'The High Sheriff has hired 72 deputies at one time, more than ever before in history; most of them hired because they wanted to carry guns. He, Sheriff Combs, is also a mine operator—in a recent Court decision he was fined $5,000 for intentionally blinding a boy with tear-gas and beating him while he was locked in a jail cell with his hands cuffed. The boy lost the sight of one eye completely and is nearly blind in the other. Before the trial Sheriff Combs offered the boy $75,000 to keep it out of court, but he refused. Then for a few thousand dollars Combs probably bought off the jury. The case is being appealed by the boy to a higher court—he wants $200,000. Combs is now indicted for the murder of a man voluntary manslaughter. Yet he is still the law in this county and has the support of the rich man because he will fight the pickets and the strike. The same is true of the State Police. They escort the scabs into the mines and hold the pickets at gunpoint.'
6
And it said respecting Mrs. W. P. Nolan, co-owner of the Hazard Herald:
7
'The town newspaper, the Hazard Herald, has hollered that 'the commies have come to the mountains of Kentucky's and are leading the strike. The Herald was the recipient of over $14,000 cash and several truckloads of food and clothing which were sent as the result of a CBS—TV show just before Christmas. The story was on the strike and aid was supposed to be sent to the pickets in care of the Hazard Herald, however the editor, Mrs. W. P. Nolan, is vehemently against labor—she has said that she would rather give the incoming aid to the merchants in town than to the miners. Apparently that is what she has done, for only $1100 of the money has come to the pickets, and none of the food and clothes. They are now either still under lock and key, or have been given out to the scabs and others still.'
8
The indictment charged 'the offense of criminal libel' committed 'by publishing a false and malicious publication which tends to degrade or injure' the three named persons. The trial court charged that 'criminal libel is defined as any writing calculated to create disturbances of the peace, corrupt the public morals, or lead to any act, which, when done, is indictable.'
9
The court also charged that malice is 'an essential element of this offense' and falsity as well.
10
The Court of Appeals in affirming the judgment of conviction adopted a different definition of the offense of criminal libel from that given the jury by the trial court. It ruled that the element of breach of the peace was no longer a constitutional basis for imposing criminal liability. It held that the common-law crime of criminal libel in Kentucky is 'the publication of a defamatory statement about another which is false, with malice.'
11
We indicated in Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176, that where an accused is tried and convicted under a broad construction of an Act which would make it unconstitutional, the conviction cannot be sustained on appeal by a limiting construction which eliminates the unconstitutional features of the Act, as the trial took place under the unconstitutional construction of the Act. We think that principle applies here. Petitioner was tried and convicted according to the trial court's understanding of Kentucky law, which defined the offense as 'any writing calculated to create disturbances of the peace * * *.'
12
We agree with the dissenters in the Court of Appeals who stated that: '* * * since the English common law of criminal libel is inconsistent with constitutional provisions, and since no Kentucky case has redefined the crime in understandable terms, and since the law must be made on a case to case basis, the elements of the crime are so indefinite and uncertain that it should not be enforced as a penal offense in Kentucky.'
13
The case is close to Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, involving a conviction of the common-law crime of inciting a breach of the peace. The accused was charged with having played in the hearing of Catholics in a public place a phonograph record attacking their religion and church. In reversing we said: 'The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. * * * Here we have a situation analogous to a conviction under a statute sweeping in a great variety of conduct under a general and indefinite characterization, and leaving to the executive and judicial branches too wide a discretion in its application.' Id., at 308, 60 S.Ct. at 905.
14
In Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131, we held unconstitutional an ordinance which as construed punished an utterance as a breach of the peace 'if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.' Id., at 3, 69 S.Ct. at 895. We set aside the conviction, saying:
15
'The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in De Jonge v. State of Oregon, 299 U.S. 353, 365 (57 S.Ct. 255, 260, 81 L.Ed. 278), it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.
16
'Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.' Id., at 4, 69 S.Ct. at 895—896.
17
Convictions for 'breach of the peace' where the offense was imprecisely defined were similarly reversed in Edwards v. State of South Carolina, 372 U.S. 229, 236—238, 83 S.Ct. 680, 683—684, 9 L.Ed.2d 697, and Cox v. State of Louisiana, 379 U.S. 536, 551—552, 85 S.Ct. 453, 462—463, 13 L.Ed.2d 471. These decisions recognize that to make an offense of conduct which is 'calculated to create disturbances of the peace' leaves wide open the standard of responsibility. It involves calculations as to the boiling point of a particular person or a particular group, not an appraisal of the nature of the comments per se. This kind of criminal libel 'makes a man a criminal simply because his neighbors have no self-control and cannot refrain from violence.' Chafee, Free Speech in the United States 151 (1954).
18
Here, as in the cases discussed above, we deal with First Amendment rights. Vague laws in any area suffer a constitutional infirmity.1 When First Amendment rights are involved, we look even more closely lest, under the guise of regulating conduct that is reachable by the police power, freedom of speech or of the press suffer.2 We said in Cantwell v. Connecticut, supra, that such a law must be 'narrowly drawn to prevent the supposed evil,' 301 U.S. at 307, 60 S.Ct., at 905, and that a conviction for an utterance 'based on a common law concept of the most general and undefined nature,' id., at 308, 60 S.Ct., at 905, could not stand.
19
All the infirmities of the conviction of the common-law crime of breach of the peace as defined by Connecticut judges are present in this conviction of the common-law crime of criminal libel as defined by Kentucky judges.
20
Reversed.
21
Mr. Justice HARLAN concurs in the result.
1
International Harvester Co. of America v. Commonwealth of Kentucky, 234 U.S. 216, 34 S.Ct. 853, 58 L.Ed. 1284; Collins v. Commonwealth of Kentucky, 234 U.S. 634, 34 S.Ct. 924, 58 L.Ed. 1510; United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516; Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322; Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146; Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 75 L.Ed. 1264; Champlin Refining Co. v. Corporation Commission of State of Oklahoma, 286 U.S. 210, 52 S.Ct. 559, 76 L.Ed. 1062; Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; Wright v. State of Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349; Giaccio v. State of Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447. Cf. Scull v. Commonwealth of Virginia, etc., 359 U.S. 344, 79 S.Ct. 838, 3 L.Ed.2d 865; Raley v. State of Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344.
2
Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066; Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205; Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285; NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405; Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377; Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22.
| 23
|
384 U.S. 158
86 S.Ct. 1384
16 L.Ed.2d 445
Harry J. AMELL et al., Petitioners,v.UNITED STATES.
No. 282.
Argued Jan. 24, 1966.
Decided May 16, 1966.
David Scribner, New York City, for petitioners.
John C. Eldridge, Washington, D.C., for respondent.
Howard Schulman, New York City, for Maritime Trades Dept. of AFL—CIO, amicus curiae.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The case before us presents interesting problems of a jurisdictional nature. The Suits in Admiralty Act1 vests exclusive jurisdiction in the district courts when the suit is of a maritime nature. Under the Tucker Act,2 the Court of Claims has jurisdiction over contractual claims against the United States. This jurisdictional interaction presents itself here.
2
The petitioners are employees of various federal executive departments working aboard government vessels. They filed contractual actions in the Court of Claims, alleging they were entitled to back pay increases and overtime pay for their labors, invoking various federal pay statutes and regulations. In all these suits, the petitioners predicated jurisdiction on the Tucker Act, which has a generous six-year limitations period and provides a grace period as well, 28 U.S.C. § 2501 (1964 ed.). Their employer, the United States, filed motions to have the actions transferred to various federal district courts on the ground that the claims were of a maritime nature and justiciable exclusively under the Suits in Admiralty Act. This Act provides only two years for claimants to file suit, and also requires exhaustion of administrative remedies, 46 U.S.C. § 745 (1964 ed.). The Court of Claims granted the motions without opinion, simply citing to three unreported cases in which it had made similar dispositions. To uphold this transfer would bar those claims which accrued more than two years prior to the time the actions were filed. We granted certiorari, 382 U.S. 810, 86 S.Ct. 66, 15 L.Ed.2d 58, and reverse.
3
On its face, the Tucker Act permits all individuals with contractual claims against the Government to sue in the Court of Claims. The Suits in Admiralty Act similarly affords an open berth in the district courts, provided the claims are of a maritime nature. The question is which Act should be applicable to the claims brought here, and this in turn depends on whether these seafaring petitioners are more appropriately classified as federal workers or as mere seamen.
4
The Government takes the position that these employees are to be deprived of the liberal benefits of the longer limitations period available to all other government employees under the Tucker Act. This is so, the Government reasons, because for purposes of wage claims the petitioners' status as seamen overrides their acknowledged role as federal workers. In assuming this posture, the Government seeks the best of both worlds. Congress is depicted as ambivalent in treating these petitioners either as seamen or as federal employees depending on which status may redound more to the benefit of the Government's proprietary interest.
5
The Government acknowledges that the petitioners are governed by a patchwork pattern of federal statutes which encompass many facets of their economic welfare. With regard to so-called fringe benefits, pervasive government schemes provide for sick leave and vacation pay,3 and for death, health, medical and pension programs.4 The petitioners' potential recovery for personal injuries is limited strictly by a workmen's compensation statute governing them as federal workers to the exclusion of both the Public Vessels Act,5 Johansen v. United States, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051, and the Suits in Admiralty Act, Patterson v. United States, 359 U.S. 495, 79 S.Ct. 936, 3 L.Ed.2d 971. By virtue of their governmental employment, the petitioners' right to join unions and to select bargaining representatives, unlike that of private seamen, exists only by express leave of the President, Exec. Order No. 10988, 27 Fed.Reg. 551 (1962), and they are forbidden, under pain of discharge, fine and imprisonment, from exercising or asserting the right to strike, 69 Stat. 624, 5 U.S.C. §§ 118p—118r (1964 ed.).
6
When it comes to wage claims the Government treats the petitioners, to their detriment, as seamen. The workers, however, have their wages fixed by federal statutes and regulations, like other federal employees. It is true that their rates of pay are geared to the prevailing wage scale in private shipping operations,6 but this factor diminishes upon analysis. A host of federal workers, like these seamen, have their rates of pay so adjusted.7 The petitioners, then, are essentially no different from the civil servants who deliver the mail, fight forest fires, construct public buildings, or who engage in countless other tasks which affect virtually every phase of the country's well-being. The wage scale of government-employed seamen is fixed by federal agencies; it is not automatically adjusted to the rate of pay prevalent in private industry, and in some cases the private pay rates are not easily ascertained. Further, these government employees—unlike normal seamen—benefit from wage pay increases won in the private industry only prospectively and to a limited degree. Often in the maritime industry, private contract negotiations continue beyond the terminal date set in a collective bargaining agreement. When the agreement is signed, however, it generally provides that the private seamen receive the increased pay retroactively. The government seamen receive pay increases only from the actual date agreement is reached in the private sector. Therefore, the back pay claims are more appropriately catalogued on the government side of the ledger, although they may have a salty tang.
7
This inference as to congressional intent is reinforced in considering the claims for overtime pay. Here there is a specific provision—Section 205 of the Federal Employees Pay Act of 19458 which fixes the ratio of overtime pay to the employees' basic pay. Congress has thus explicitly prescribed that overtime pay should be fixed in a uniform manner for all government wage-board employees, whether seamen or not. Furthermore, in determining the applicability of this uniform statutory requirement, the court will be interpreting the pay regulation of an executive department. This task is typically within the province and expertise of the Court of Claims.
8
We think the foregoing indicates that with respect to these wage claims, Congress thought of these petitioners more as government employees who happened to be seamen than as seamen who by chance worked for the Government. The remaining problems relate to specific legislative amendments. The Government approaches this by noting that the Suits in Admiralty Act specifically repealed the Tucker Act so far as the two conflicted. This may readily be conceded, see, e.g., Calmar S.S. Corp. v. United States, 345 U.S. 446, 455—456, 73 S.Ct. 733, 737—738, 97 L.Ed. 1140; Matson Navigation Co. v. United States, 284 U.S. 352, 52 S.Ct. 162, 76 L.Ed. 336. Compare Patterson v. United States, 359 U.S. 495, 79 S.Ct. 936, 3 L.Ed.2d 971. From this proposition it adduces the principle that exclusive admiralty jurisdiction is now so deeply woven in the fabric of the law that congressional action is required to overturn it, cf. State Bd. of Ins. v. Todd Shipyards Corp., 370 U.S. 451, 458, 82 S.Ct. 1380, 1385, 8 L.Ed.2d 620. This principle is sound where applicable, but such is not the case here.
9
The evolution of the law, both statutory and judicial, indicates that at least until 1960, the jurisdiction of the Court of Claims over government seamen's wage claims was unchallenged. We do not understand the Government to dispute this fact. For example, wage claims by federal employees were found to be expressly within the ambit of the Tucker Act in Bruner v. United States, 343 U.S. 112, 115, 72 S.Ct. 581, 583, 96 L.Ed. 786. In United States v. Townsley, 323 U.S. 557, 65 S.Ct. 413, 89 L.Ed. 454, this Court affirmed a judgment against the Government for overtime wages in favor of a government-employed operator of a dredge. The Court of Claims had assumed jurisdiction over the suit, 101 Ct.Cl. 237, and the Government never disputed the issue. Subsequent cases are to the same effect.9 It was on this line of precedent that the petitioners relied in bringing suit. This fact is worthy of mention to illustrate the impact upon claimants whose suits would otherwise be time-barred if we were now to hold that the Suits in Admiralty Act restricted all suits in cases like the present to the district courts, cf. Brady v. Roosevelt S.S. Co., 317 U.S. 575, 581, 63 S.Ct. 425, 428, 87 L.Ed. 471.
10
In 1960, Congress addressed itself to the jurisdictional overlap between the Tucker Act and the Suits in Admiralty Act. Its major aim was to empower the Court of Claims to transfer suits to the district courts when the latter had exclusive jurisdiction over them. This it accomplished by providing that when the transfer was made, the original filing in the Court of Claims would toll the applicable limitations period, Act of Sept. 13, 1960, Pub.L. 86—770, 74 Stat. 912, 28 U.S.C. § 1506. Simultaneously, Congress abolished the distinction between public and merchant vessels, a matter which had sorely confused attorneys and had caused misfilings in the past, S.Rep. No. 1894, 86th Cong., 2d Sess., pp. 3, 6. In amending the Suits in Admiralty Act, Congress also wanted to affirm the existing law that suits which were justiciable exclusively under it would be brought only in the district courts. The new § 2 of the Act, 46 U.S.C. § 742, in the words of the Senate Report, S.Rep. No. 1894, supra, at p. 2, U.S.Code Congressional and Administrative News 1960, p. 3583,
11
'restates in brief and simple language the now existing exclusive jurisdiction conferred on the district courts, both on their admiralty and law sides, over cases against the United States which could be sued on in admiralty if private vessels, persons, or property were involved.'10
12
The Government would have us believe that this oblique reference to private 'persons' was designed to make inroads on the right of government employees to sue in the Court of Claims. We reject this argument. The legislative history surrounding this enactment containins no discussion whatever concerning claims brought by government-employed seamen. This is highly significant because of the active interest in nautical legislation generally taken by the maritime labor unions. If Congress had meant to lower the limitations period from six to two years, surely these unions would have been privy to the decision; this is all the more true when one considers that seamen are often stationed far away from their home ports and need a lengthy period in which to register their claims. If they were governed by the maritime Act, they would be required not only to sue but to exhaust administrative remedies as well within the shorter period, 46 U.S.C. § 745 (1964 ed.).
13
In effect, the Government asks us to repeal the former practice by implication. We have held in numerous cases that such a request bears a heavy burden of persuasion, e.g., Bulova Watch Co. v. United States, 365 U.S. 753, 758, 81 S.Ct. 864, 867, 6 L.Ed.2d 72; Fourco Glass Co. v. Transmirra Corp., 353 U.S. 222, 228—229, 77 S.Ct. 787, 791—792, 1 L.Ed.2d 786. Further, Congress had the opportunity in 1964 to deprive government-employed claimants of their rights when it amended the Tucker Act itself. Instead, Congress broadened the forums available to plaintiffs suing the Government for fees, salary or compensation for official services, giving the district courts concurrent jurisdiction with the Court of Claims in matters of less than $10,000, 78 Stat. 699, 28 U.S.C. § 1346(d) (1964 ed.).
14
As in other jurisdictional questions involving intersecting statutes, there is no positive answer. We can do no more than to exercise our best judgment in interpreting the will of Congress. In this instance, we believe the traditional treatment of federal employees by the Government tips the balance in favor of Court of Claims jurisdiction. The Court of Claims possesses the expertise necessary to adjudicate government wage claims. It also serves as a centralized forum for developing the law, particularly in large wage claim suits. These tasks have been its responsibility since 1887. In multi-party wage suits of large amounts, having one forum eliminates any problem of transferring venue from several district courts to one locale, see 28 U.S.C. § 1406 (1964 ed.). If we are here misconstruing the intent of Congress, it can easily set the matter to rest by explicit language. We therefore reverse and remand the suits to the Court of Claims for further proceedings.
15
It is so ordered.
16
Reversed and remanded.
17
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
18
In my opinion a course of legal history, reflecting both decisions of this Court and congressional enactments, precludes the interpretation that is now placed on the Suits in Admiralty Act, 41 Stat. 525, as amended, 46 U.S.C. § 741 et seq. (1964 ed.).
I.
19
The Suits in Admiralty Act was enacted in 1920 to deal with problems created by the formation of a large government-owned merchant fleet during World War I. The Act established a method to sue the United States in admiralty that would protect the interests of libellants while at the same time prevent in rem attachments of government vessels during a possible emergency. See S.Rep. No. 223, 66th Cong., 1st Sess. (1919); H.R.Rep. No. 497, 66th Cong., 2d Sess. (1919); 58 Cong.Rec. 7317 (1919); 59 Cong.Rec. 1684—1688 (1920). Although the creation of this statutory procedure for suits in admiralty was occasioned by particular needs, the early cases, discussed below, held unmistakably, first, that the Act provided the exclusive admiralty remedy against the United States, and, second, that it was exclusive of all other remedies affording relief for an underlying claim cognizable in admiralty.
20
The Suits in Admiralty Act provides the procedure for suits against the United States or a government-owned corporation '(i)n cases where if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained * * *.' 46 U.S.C. § 742. A narrow construction of the statute was unanimously rejected in Eastern Transp. Co. v. United States, 272 U.S. 675, 47 S.Ct. 289, 71 L.Ed. 472, where the Court held that the Act made the Government amenable to any cause of action in admiralty, in rem or in personam, to which a private owner would be liable. 272 U.S., at 690, 47 S.Ct., at 292. This view was reiterated and reinforced in United States Shipping Board Emergency Fleet Corp. v. Rosenberg Bros., 276 U.S. 202, 48 S.Ct. 256, 72 L.Ed. 531. There the libellants sued the government-owned Fleet Corporation in admiralty. The cause was time-barred under the Suits in Admiralty Act, but the respondents argued that the remedy provided by the Act did not preclude a nonstatutory suit in admiralty against the public corporation. The Court held that the Act provided the exclusive admiralty remedy against the United States or its agencies. It left open, however, the question whether 'the act also prevents a resort to any concurrent remedies against the United States * * * on like causes of action in the Court of Claims or in courts of law * * *.' 276 U.S., at 214, 48 S.Ct., at 258.
21
This reservation was laid at rest in Johnson v. United States Shipping Board Emergency Fleet Corp., 280 U.S. 320, 50 S.Ct. 118, 74 L.Ed. 451. There four cases were consolidated: two involved seamen's allegations of negligence; the third alleged breach of contract affecting cargo; the fourth alleged loss of cargo due to negligence. The suits were barred by the Suits in Admiralty statute of limitations, but it was argued that Tucker Act and common-law remedies were still available. The Court held squarely for the Government in spite of well-briefed arguments and some support from legislative history that the admiralty jurisdiction was not meant to be exclusive in such cases.1 Reviewing the structure of the Act and basic congressional intent, the Court stated that the Act's purposes would not be served 'if suits under the Tucker Act and in the Court of Claims be allowed against the United States, and actions at law in state and federal courts be permitted against the Fleet Corporation or other agents for enforcement of the maritime causes of action covered by the Act.' 280 U.S., at 327, 50 S.Ct., at 120. The Court concluded 'that the remedies given by the Act are exclusive in all cases where a libel might be filed under it.' Ibid., 50 S.Ct., at 120.
22
This interpretation of the Suits in Admiralty Act was subsequently recognized and ultimately adopted by the Congress, which on various occasions has amended the Act or passed supporting legislation premised on the exclusivity of the Act over all claims that might be heard in admiralty. Soon after the Johnson case, supra, was decided, the Congress acted to mitigate its effects on those who were barred by its two-year limitation. In an Act of June 30, 1932, 47 Stat. 420, § 5 of the Suits in Admiralty Act was amended to waive the two-year period for suitors who had filed timely actions elsewhere before the Johnson decision.2 In 1950, in order to eliminate any remaining confusion, § 5 was again amended to codify the Johnson rule as applied to government agents, namely, '(t)hat where a remedy is provided by * * * (the Suits in Admiralty Act) it shall hereafter be exclusive of any other action by reason of the same subject matter against the agent or employee of the United States * * *.' 64 Stat. 1112, 46 U.S.C. § 745 (1964 ed.). See S.Rep. No. 2535, 81st Cong., 2d Sess. (1950), quoted in note 2, supra; H.R.Rep. No. 1292, 81st Cong., 1st Sess. (1949).
23
The statutes affecting the Court of Claims directly were also altered by Congress to conform with the basic structure of the exclusive admiralty jurisdiction. In 1948 the Tucker Act was amended to strike the word 'admiralty' from the scope of that court's jurisdiction. Act of June 25, 1948, c. 646, 62 Stat. 940, 28 U.S.C. § 1491 (1964 ed).3 In 1960, an Act was passed to facilitate transfers of admiralty actions from the Court of Claims to the federal district courts and to toll the running of the statute of limitations in such cases so that litigants who sued, incorrectly, in the Court of Claims would not be required to file a new suit in the district court which might by then be time-barred. Act of September 13, 1960, 74 Stat. 912, 28 U.S.C. § 1506 (1964 ed.). Recognition of the exclusive admiralty jurisdiction of the district courts prompted enactment of this statute. See H.R. Rep. No. 523, 86th Cong., 1st Sess. (1959); S.Rep. No. 1894, 86th Cong., 2d Sess. (1960).
II.
24
This survey of case-law and statutory development indicates quite clearly that the jurisdiction of the district courts is exclusive in actions falling within the purview of the Suits in Admiralty Act, and that the test for determining whether an action falls within that class is whether 'a libel might be filed under (the Act),' Johnson v. United States Shipping Board Emergency Fleet Corp., supra, 280 U.S. at 327, 50 S.Ct., at 120, or in the words of the statute directly, whether 'if such vessel were privately owned or operated * * * a proceeding in admiralty could be maintained.' 46 U.S.C. § 742.
25
Until today the basic test for the Act's applicability has been a familiar historical one, for the statutory term 'proceeding in admiralty' is quite obviously co-extensive with its meaning in ordinary legal usage. In the case now before us, the question for the Court is whether the claim for back wages by these seamen would be heard by an admiralty court if their employer were a private person. The answer is clearly in the affirmative, see Sheppard v. Taylor, 5 Pet. 675, 8 L.Ed. 269; Kossick v. United Fruit Co., 365 U.S. 731, 735, 81 S.Ct. 886, 889—890, 6 L.Ed.2d 56. It is stated in 1 Benedict, The Law of American Admiralty 124 (6th ed. Knauth 1940): 'The mariners of a ship are commonly said to be wards of the admiralty. Their wages, their rights, their wrongs and injuries have always been a special subject of the admiralty jurisdiction.' It is true that the claim against a private employer might also be litigated in a common-law court, see Leon v. Galceran, 11 Wall. 185, 20 L.Ed. 74; 1 Benedict, supra, at 35. But the fact that there is concurrent jurisdiction over such a claim in private litigation is irrelevant for purposes of a suit against the sovereign, for as shown above, the Suits in Admiralty Act is exclusive over any action which 'could be maintained' in admiralty. This is indubitably such a claim.
III.
26
The Court, while recognizing 'that the Suits in Admiralty Act specifically repealed the Tucker Act so far as the two conflicted,' ante, p. 163, avoids the result compelled by prior interpretation of the Suits in Admiralty Act and conventional admiralty law, by formulating a new test for the statute's applicability. Instead of asking whether this suit is one traditionally within the scope of admiralty jurisdiction, it seems the interrelation of the Tucker Act and the Suits in Admiralty Act as requiring an inquiry into the question whether the petitioners are more like federal employees than like mariners, and after weighing the factors involved concludes that they are more civil servants than seafarers. I believe this test presents a false basis for determining whether or not exclusive jurisdiction lies in admiralty and puts a mischievous gloss on the relevant statutes.
27
Obviously these petitioners are both federal employees and seamen. One label refers to their employer; the other to the type of work they perform. This dual classification might well be made of the status of employees in many private industries. A large corporation might have thousands of employees, some of whom are employed in maritime activities. Because of the evolution of our legal system these maritime employees can sue their employer in an admiralty court as well as at law; their land-based co-workers do not have that option. The fact that the contracts, pension rights, and other benefits and obligations may be similar for both types of employees is irrelevant for purposes of defining the admiralty court's jurisdiction over the claims of these maritime employees. Cf. The Steam-Boat Thomas Jefferson, 10 Wheat. 428, 6 L.Ed. 358; International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157. The position of federal maritime employees should be no different. The argument of the Court showing that in many respects the rights of federal employees who are seamen are similar to the rights of federal employees who are not seamen, whatever its merits on its own terms, see Part IV, infra, does not negate the fact that the claims of these seamen are within the traditional scope of the admiralty jurisdiction. See McCrea v. United States, 294 U.S. 23, 55 S.Ct. 291, 79 L.Ed. 735, a claim for wages, inter alia, under the Suits in Admiralty Act.
28
Not only is the Court's approach based upon a false yardstick, but it contrives an impracticable test for applying a jurisdictional statute. The rule heretofore used for the application of the Suits in Admiralty Act has been that, absent any clear statutory exception,4 it encompasses any claim that could have been brought before an admiralty court were the defendant a private shipper. Since the scope of the admiralty jurisdiction is long established and generally well understood, suitors would normally know in what forum their cases should be brought. The Court's new test for determining the proper forum is whether the underlying cause of action is primarily of 'a maritime nature.' As the Court's opinion indicates, this inquiry can be resolved only after what in many instances will be a complicated and elusive process. Indeed, in this case, only after several pages of analysis is the Court able to determine that 'with respect to these wage claims, Congress thought of these petitioners more as government employees who happened to be seamen than as seamen who by chance worked for the Government,' ante, p. 163. Putting aside the fact that there is nothing to show that Congress ever contemplated such a 'jurisdictional' standard, replacing the straightforward 'admiralty jurisdiction' test by the unpredictable 'primarily of a maritime nature' rule is bound to introduce confusion and uncertainty into determinations of the appropriateness of a particular forum, the very type of question that should have a reasonably definitive answer.
IV.
29
The Court quite obviously construes the Act as it does because it is reluctant to deprive federally employed seamen of the longer statute of limitations available under the Tucker Act. Apart from anything else, this can be accomplished, however, only at the expense of forfeiting other substantial advantages available under the Suits in Admiralty Act.
30
First, an admiralty court is likely to be better acquainted with many underlying questions involved in suits such as these, and to be more sensitive to the tradition that seamen are the 'wards of the admiralty.' For example, the Classification Act of 1949, 63 Stat. 954, as amended, 5 U.S.C. § 1082(8) (1964 ed.), provides that federally employed crew members shall be compensated 'as nearly as is consistent with the public interest in accordance with prevailing rates and practices in the maritime industry * * *.'
31
One of the suits consolidated in this action raises the question of overtime payment for 'port watch tours of duty,' and the petitioner, citing the Classification Act, alleges that 'prevailing rates' in the trade require '16 hours at overtime rates per 24 hour port watch tour of duty.' Another complaint involves, inter alia, a naval rule regarding lunch periods where, due to the nature of the work, 'it may not be administratively desirable to allow a specified period of time off for lunch.' Navy Civilian Personnel Instruction 610.2—1k. Questions involving such subject matter are best heard in admiralty.5
32
Second, venue under the Tucker Act, for suits over $10,000 and all suits involving pension rights, is limited to the Court of Claims. 28 U.S.C. § 1346(a), (d) (1964 ed.). Three of the four suits consolidated here are above the $10,000 limit, and thus can only be brought in the District of Columbia. Of these three cases, two involve naval facilities at Fort Lauderdale, Florida. The interests of most maritime employees of the United States would probably be better served by allowing the more favorable venue provisions in admiralty.6
33
Third, interest provisions under the Suits in Admiralty Act are more favorable than under the Tucker Act. Under the latter statute interest runs at most from the date of judgment, 28 U.S.C. §§ 2411(b), 2516 (1964 ed.), while in admiralty the court may award interest from the date the libel is filed. 46 U.S.C. §§ 743, 745 (1964 ed.). Greater court costs may also be awarded in admiralty. Compare 46 U.S.C. § 743 with 28 U.S.C. § 2412(b) (1964 ed.).
34
Because of the Court's ruling today, all of these benefits are lost to all federally employed seamen, not merely to those involved in this case. The untoward results to which this decision leads in themselves engendered the most serious misgivings as to the soundness of the Court's ruling, albeit it may be thought to produce a beneficent result in this particular instance.
35
I would affirm the judgment of the Court of Claims.
1
41 Stat. 525, as amended, 46 U.S.C. §§ 741—752 (1964 ed.).
2
24 Stat. 505, as amended, 28 U.S.C. §§ 1346, 1491 (1964 ed.).
3
Annual and Sick Leave Act of 1951, 65 Stat. 679, as amended, 5 U.S.C. §§ 2061—2066 (1964 ed.).
4
Federal Employees' Group Life Insurance Act of 1954, 68 Stat. 736, as amended, 5 U.S.C. §§ 2091—2103 (1964 ed.); Civil Service Retirement Act, 70 Stat. 743, as amended, 5 U.S.C. §§ 2251 2267 (1964 ed.); Federal Employees Health Benefits Act of 1959, 73 Stat. 708, 5 U.S.C. §§ 3001—3014 (1964 ed.).
5
43 Stat. 1112, as amended, 46 U.S.C. §§ 781—790 (1964 ed.).
6
Section 202(8) of the Classification Act of 1949, 63 Stat. 954, as amended, 5 U.S.C. § 1082(8) (1964 ed.), provides in substance that workers on vessels shall have their compensation fixed and adjusted by federal agencies so far as consistent with the public interest in accordance with prevailing rates and practices in the maritime industry.
7
In 1962, Congress enacted the Federal Salary Reform Act, making an explicit declaration of policy that federal salary fixing should be comparable to private enterprise salary rates for the same levels of work, Act of Oct. 11, 1962, Pub.L. 87—793, 76 Stat. 841, 5 U.S.C. §§ 1171—1174 (1964 ed.). Pursuant to congressional direction, the President issued an Executive Order, Exec. Order No. 11173, Aug. 20, 1964, 29 Fed.Reg. 11999, taking full cognizance of the congressional policy enunciated in the Federal Salary Reform Act of 1962. So far as determining the compensation for wage board employees, as are these petitioners, Congress has evinced a similar concern, Pub.L. 85—872, 72 Stat. 1696, 5 U.S.C. §§ 1181—1184 (1964 ed.). Thus, the whole trend in government compensation is to draw individuals into public service by providing salaries at least comparable to those they would earn on entering private industry.
8
59 Stat. 295, 5 U.S.C. § 913 (1964 ed.), provides:
Employees whose basic rate of compensation is fixed on an annual or monthly basis and adjusted from time to time in accordance with prevailing rates by wage boards or similar administrative authority serving the same purpose shall be entitled to overtime pay in accordance with the provisions of section 673c of this title. The rate of compensation for each hour of overtime employment of any such employee shall be computed as follows: * * *.'
This provision, as does 5 U.S.C. § 673c (1964 ed.), gives government-employed seamen one and one-half times their basic pay for overtime pay.
9
See, e.g., Hearne v. United States, 68 F.Supp. 786, 107 Ct.Cl. 335, cert. denied, 331 U.S. 858, 67 S.Ct. 1752, 91 L.Ed. 1865; Adams v. United States, 141 Ct.Cl. 133; Abbott v. United States, 169 F.Supp. 523, 144 Ct.Cl. 712. See also Continental Casualty Co. v. United States, 156 F.Supp. 942, 140 Ct.Cl. 500.
10
As amended, 46 U.S.C. § 742 now provides in pertinent part:
'In cases where if such vessel (owned by the United States) were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate non-jury proceeding in personam may be brought against the United States * * * Such suits shall be brought in the district court of the United States for the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel or cargo charged with liability is found. * * *'
1
Legislative history bearing on this aspect of the question is meager, although one colloquy during the House Committee on the Judiciary hearings on this bill suggests that concurrent jurisdiction with the Court of Claims might have been contemplated in certain situations. Hearing before the House Committee on the Judiciary on the Attorney General's Substitute for S. 3076 and H.R. 7124, 66th Cong., 1st Sess., ser. 8, at 48 (1919).
2
Again in 1950 Congress extended the limitations period to accommodate those employees who, in reliance upon a prior decision, Hust v. Moore-McCormack Lines, 328 U.S. 707, 66 S.Ct. 1218, 90 L.Ed. 1534, overruled in Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692, had not filed suit against the United States under the Suits in Admiralty Act for a tort committed when a government-owned ship was being operated by a private company as general agent for the Government. 64 Stat. 1112, 46 U.S.C. § 745 (1964 ed.). The Senate report noted that '(t)o prevent future repetition of such mistake the bill expressly restates the existing law that the remedy by suit against the United States is exclusive of every other type of action by reason of the same subject matter against the United States or against its employees or agents.' S.Rep. No. 2535, 81st Cong., 2d Sess., 1 (1950).
3
The House report noted: 'the Court of Claims has no admiralty jurisdiction, but the Suits in Admiralty Act * * * vests exclusive jurisdiction over suits in admiralty against the United States in the district courts.' H.R.Rep. No. 308, 80th Cong., 1st Sess., App. p. 138 (1947).
4
Compare Johansen v. United States, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051, and Patterson v. United States, 359 U.S. 495, 79 S.Ct. 936, 3 L.Ed.2d 971, in which it was held that the Federal Employees' Compensation Act of 1916, 39 Stat. 742, 5 U.S.C. § 751 et seq. (1964 ed.), provided the sole remedy for seamen injured on board government-owned vessels, thus barring suits under the Suits in Admiralty Act.
5
The Court's argument that this factor is offset by the peculiar expertise of the Court of Claims with respect to the nonmaritime components of government seamen wage claims is not persuasive. District courts, too, possess such expertise, born of their concurrent jurisdiction with the Court of Claims in government contract actions involving less than $10,000. 28 U.S.C. § 1346(a) (1964 ed.).
6
46 U.S.C. § 742 provides that suits under the Suits in Admiralty Act 'shall be brought in the district court of the United States for the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel or cargo charged with liability is found.'
| 78
|
384 U.S. 238
86 S.Ct. 1420
16 L.Ed.2d 501
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES, AFL-CIO, et al., Petitioners,v.FLORIDA EAST COAST RAILWAY COMPANY. UNITED STATES, Petitioner, v. FLORIDA EAST COAST RAILWAY COMPANY. FLORIDA EAST COAST RAILWAY COMPANY, Cross-Petitioner, v. UNITED STATES.
Nos. 750, 782, and 783.
Argued April 20, 1966.
Decided May 23, 1966.
[Syllabus from pages 238-240 intentionally omitted]
Paul Bender, Washington, D.C., for the United States, pro hac vice, by special leave of Court.
William B. Devaney, Washington, D.C., for Florida East Coast Ry. Co.
Neal Rutledge, Miami, Fla., for Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL—CIO and others.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This controversy started with a union demand on behalf of the nonoperating employees for a general 25-cent-per-hour wage increase and a requirement of six months' advance notice of impending layoffs and abolition of job positions. The demand was made of virtually all Class I railroads, including Florida East Coast Railway Co. (hereinafter called FEC). The dispute underwent negotiations and mediation as required by the Railway Labor Act.1 When those procedures proved unsuccessful, a Presidential Emergency Board was created under § 10 of the Act,2 which after hearings recommended a general pay increase of about 10 cents per hour and a requirement of at least five days' notice before job abolition. In June 1962, this settlement was accepted by all the carriers except FEC. Thereupon, further mediation was invoked under the Act but again no settlement was reached. The Act makes no provision for compulsory arbitration. Section 5 First3 does, however, provide for voluntary arbitration at the suggestion of the National Mediation Board. The suggestion was made but both the unions and FEC refused. Further negotiations were unsuccessful and on January 23, 1963, the nonoperating unions struck. When that happened, most operating employees refused to cross the picket lines.
2
FEC shut down for a short period; and then on February 3, 1963, resumed operations by employing supervisory personnel and replacements to fill the jobs of the strikers and of those operating employees who would not cross the picket lines. FEC made individual agreements with the replacements concerning their rates of pay, rules and working agreements on terms substantially different from those in the outstanding collective bargaining agreements with the various unions. Thereafter, FEC proposed formally to abolish all the existing collective bargaining agreements and to substitute another agreement that would make rather sweeping departures in numerous respects from the existing collective bargaining agreements. Negotiations between FEC and the unions broke down. The unions then invoked the mediation services of the National Mediation Board relative to the proposed changes, but the carrier refused. The unions thereafter agreed to submit the underlying dispute—the one concerning wages and notice—to arbitration. But FEC refused arbitration and shortly thereafter established another new agreement by unilateral action and operated under it until the present action was instituted by the United States in 1964—a suit charging that the unilateral promulgation of the new agreement violated the Act.4 The nonoperating unions intervened as plaintiffs and hearings were held. Meanwhile, the Court of Appeals decided Florida East Coast R. Co. v. Brotherhood of R. Trainmen, 5 Cir., 336 F.2d 172, a parallel injunctive suit brought against FEC by an operating union and similarly complaining of FEC's unilateral promulgation of the new agreement. That court held that FEC had violated the Act by its unilateral abrogation of the existing collective bargaining agreements. It ruled, however, that FEC could unilaterally institute such changes in its existing agreements as the District Court found to be 'reasonably necessary to effectuate its right to continue to run its railroad under the strike conditions.' 336 F.2d, at 182. The District Court thereafter entered injunctions in the Trainmen case, and in the present case, requiring FEC to abide by all the rates of pay, rules, and working conditions specified in the existing collective bargaining agreements until the termination of the statutory mediation procedure 'except upon specific authorization of this Court after a finding of reasonable necessity therefor upon application of the FEC to this Court.' Thereupon FEC filed an application for approval of some departures from its existing agreements with its nonoperating unions. The District Court, after hearings, granted some requests and denied others. Thus it permitted FEC to exceed the ratio of apprentices to journeymen and age limitations established by the collective bargaining agreements, to contract out certain work, and to use supervisory personnel to perform certain specified jobs where it appeared that trained personnel were unavailable. The District Court denied FEC's request that it be permitted to disregard completely craft and seniority district restrictions, that it be allowed to use supervisors to perform craft work whenever it desired, that it be relieved of the duty to provide seniority rosters, that it be permitted to contract out work whenever trained personnel were unavailable, and that the union shop be declared void and unenforceable as to employees hired after January 23, 1963. Both sides appealed. The Court of Appeals affirmed on the basis of its decision in the Trainmen case. 348 F.2d 682. The unions, the United States, and FEC each petitioned for a writ of certiorari which we granted. 382 U.S. 1008, 86 S.Ct. 615, 15 L.Ed.2d 524.
3
The controversy centers around § 2 Seventh of the Act,5 which provides:
4
'No carrier, its officers or agents shall change the rates of pay, rules, or working conditions of its employees, as a class as embodied in agreements except in the manner prescribed in such agreements or in section 6 of this Act.'
5
The demand for a 25-cent-per-hour wage increase and for six months' advance notice of impending layoffs and job abolitions was a major dispute covered by § 2 Seventh (Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 1289, 89 L.Ed. 1886) and it had proceeded through all the major dispute procedures required by the Act without settlement. The unions, having made their demands and having exhausted all the procedures provided by Congress, were therefore warranted in striking. For the strike has been the ultimate sanction of the union, compulsory arbitration not being provided.
6
At that juncture self-help was also available to the carrier as we held in Brotherhood of Locomotive Engineers v. Baltimore & Ohio R. Co., 372 U.S. 284, 291, 83 S.Ct. 691, 695, 9 L.Ed.2d 759. '* * * both parties, having exhausted all of the statutory procedures, are relegated to self-help in adjusting this dispute * * *.'
7
The carrier's right of self-help is underlined by the public service aspects of its business. 'More is involved than the settlement of a private controversy without appreciable consequences to the public.' Virginian Ry. Co. v. System Federation No. 40, 300 U.S. 515, 552, 57 S.Ct. 592, 601, 81 L.Ed. 789. The Interstate Commerce Act, 24 Stat. 379, as amended, places a responsibility on common carriers by rail to provide transportation.6 The duty runs not to shippers alone but to the public. In our complex society, metropolitan areas in particular might suffer a calamity if rail service for freight or for passengers were stopped. Food and other critical supplies might be dangerously curtailed; vital services might be impaired; whole metropolitan communities might be paralyzed.
8
We emphasize these aspects of the problem not to say that the carrier's duty to operate is absolute, but only to emphasize that it owes the public reasonable efforts to maintain the public service at all times, even when beset by labor-management controversies and that this duty continues even when all the mediation provisions of the Act have been exhausted and self-help becomes available to both sides of the labor-management controversy.
9
If all that were involved were the pay increase and the notice to be given on layoffs or job abolition, the problem would be simple. The complication arises because the carrier, having undertaken to keep its vital services going with a substantially different labor force, finds it necessary or desirable to make other changes in the collective bargaining agreements. Thus we find FEC in this case anxious to exceed the ratio of apprentices to journeymen and the age limitations in the collective bargaining agreements, to make changes in the contracting-out provisions, to disregard requirements for trained personnel, to discard craft and seniority restrictions, the union shop provision, and so on. Each of these technically is included in the words 'rules, or working conditions of its employees, as a class as embodied in agreements' within the meaning of § 2 Seventh of the Act. It is, therefore, argued with force that each of these issues must run the same gantlet of negotiation and mediation, as did the pay and notice provisions that gave rise to this strike.
10
The practical effect of that conclusion would be to bring the railroad operations to a grinding halt. For the procedures of the Act are purposely long and drawn out, based on the hope that reason and practical considerations will provide in time an agreement that resolves the dispute. If, therefore, § 2 Seventh is applicable after a lawful strike has been called and after lawful self-help has been invoked by the carrier, the right of self-help might well become unilateral to the workers alone, and denied the carrier. For when a carrier improvises and employs an emergency labor force it may or may not be able to comply with the terms of a collective bargaining agreement, drafted to meet the sophisticated requirements of a trained and professional labor force. The union remains the bargaining representative of all the employees in the designated craft, whether union members or not. Steele v. Louisville & N.R.Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173. All these employees of the railroad are entitled to the benefits of the collective bargaining agreement, and the carrier may not supersede the agreement by individual contracts even though particular employees are willing to enter into them. See Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 347, 64 S.Ct. 582, 585, 88 L.Ed. 788. But when a strike occurs, both the carrier's right of self-help and its duty to operate, if reasonably possible, might well be academic if it could not depart from the terms and conditions of the collective bargaining agreement without first following the lengthy course the Act otherwise prescribes.
11
At the same time, any power to change or revise the basic collective agreement must be closely confined and supervised. These collective bargaining agreements are the product of years of struggle and negotiation; they represent the rules governing the community of striking employees and the carrier. That community is not destroyed by the strike, as the strike represents only an interruption in the continuity of the relation.7 Were a strike to be the occasion for a carrier to tear up and annul, so to speak, the entire collective bargaining agreement, labor-management relations would revert to the jungle. A carrier could then use the occasion of a strike over a simple wage and hour dispute to make sweeping changes in its work-rules so as to permit operation on terms which could not conceivably have been obtained through negotiation. Having made such changes, a carrier might well have little incentive to reach a settlement of the dispute that led to the strike. It might indeed have a strong reason to prolong the strike and even break the union. The temptation might be strong to precipitate a strike in order to permit the carrier to abrogate the entire collective bargaining agreement on terms most favorable to it. The processes of bargaining and mediation called for by the Act would indeed become a sham if a carrier could unilaterally achieve what the Act requires be done by the other orderly procedures.
12
While the carrier has the duty to make all reasonable efforts to continue its operations during a strike, its power to make new terms and conditions governing the new labor force is strictly confined, if the spirit of the Railway Labor Act is to be honored.8 The Court of Appeals used the words 'reasonably necessary.' We do not disagree, provided that 'reasonably necessary' is construed strictly. The carrier must respect the continuing status of the collective bargaining agreement and make only such changes as are truly necessary in light of the inexperience and lack of training of the new labor force or the lesser number of employees available for the continued operation. The collective bargaining agreement remains the norm; the burden is on the carrier to show the need for any alteration of it, as respects the new and different class of employees that it is required to employ in order to maintain that continuity of operation that the law requires of it.
13
Affirmed.
14
Mr. Justice FORTAS took no part in the consideration or decision of these cases.
15
Mr. Justice WHITE, dissenting.
16
The Act provides that until bargaining procedures are exhausted there shall be neither strikes nor changes in the contract. Section 2 Seventh (45 U.S.C. § 152 Seventh (1964 ed.)); § 5 First (45 U.S.C. § 155 First (1964 ed.)); § 6 (45 U.S.C. § 156 (1964 ed.)). Here, bargaining was exhausted only on wages and notice of layoffs and job abolition. At that point the union was free to strike and the carrier to make such changes as had been bargained for. The carrier was free to operate, if it could, but in my view only under the terms of the existing collective bargaining contract as modified with respect to those subjects on which the Act's procedures had been followed.
17
The Court agrees that § 2 Seventh forbids the carrier itself to make any changes in the contract other than those on which bargaining has taken place, regardless of how necessary these changes are to the successful operation of the railroad. But with the consent of a United States court, or a state court for that matter, the carrier may now make any change essential to its continued operation.1 Although the union remains the bargaining agent for all employees, strikers and replacements alike, Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, the carrier need not bargain with it, but with the court, if it wants to make changes which the Act forbids it to make alone. The union is free to strike and thereby to attempt to halt the operation of the railroad; but if it does, the court may—indeed, it must in some circumstances—permit the railroad to make any change in wages, hours and working conditions which is necessary to obviate the normal consequences of the strike. I fail to see how this exception can be read into the unequivocal language of § 2 Seventh.
18
This is very close to a judgment that there shall be no strikes in the transportation business, a judgment which Congress rejected in drafting the Railway Labor Act. True, the Act was designed to maximize settlements and minimize strikes,2 but Congress stopped short of imposing compulsory arbitration, the most obvious technique to insure the settlement of disputes and to prevent strikes. § 5, 45 U.S.C. § 155 (1964 ed.) Certainly it was not anticipated that a struck railroad could invoke the aid of the court to make changes in a contract which Congress had forbidden it to make. Nor did Congress anticipate what is in effect a new type of railroad receivership designed to last as long as necessary to blunt the effectiveness of a strike which the Act left the union free to call.3 Had Congress impressed upon the railroads an absolute duty to continue operating while struck, perhaps an implied exception to § 2 Seventh might be warranted. But, as the majority recognizes, no such duty has been placed on the railroads.
19
Of course the railroad was free to operate, but the Congress specified in § 2 Seventh the terms on which it might do so. To change those terms is a task for Congress, not for a federal or a state court.
1
§ 6, 44 Stat. 582, as amended, 48 Stat. 1197, 45 U.S.C. § 156 (1964 ed.); § 5 First, 44 Stat. 580, as amended, 48 Stat. 1195, 45 U.S.C. § 155 First (1964 ed.).
2
44 Stat. 586, as amended, 48 Stat. 1197, 45 U.S.C. § 160 (1964 ed.).
3
44 Stat. 580, as amended, 48 Stat. 1195, 45 U.S.C. § 155 First (1964 ed.).
4
We have no doubt that the United States had standing to bring this action Section 2 Tenth, 48 Stat. 1189, 45 U.S.C. § 152 Tenth (1964 ed.), makes it the duty of the United States attorney to 'institute in the proper court and to prosecute * * * all necessary proceedings for the enforcement' of § 2 (emphasis added) which FEC is here charged with violating. See United States v. Republic Steel Corp., 362 U.S. 482, 491—492, 80 S.Ct. 884, 890, 4 L.Ed.2d 903.
5
48 Stat. 1188, 45 U.S.C. § 152 Seventh (1964 ed.).
6
49 U.S.C. § 1(4) (1964 ed.) 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; * * *'
49 U.S.C. § 1(11) (1964 ed.) provides in part:
'It shall be the duty of every carrier by railroad subject to this chapter to furnish safe and adequate car service and to establish, observe, and enforce just and reasonable rules, regulations, and practices with respect to car service; * * *' 49 U.S.C. § 8 (1964 ed.) provides in part:
'In case any common carrier subject to the provisions of this chapter shall do, cause to be done, or permit to be done any act, matter, or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this chapter required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this chapter * * *.'
7
In this connection, it bears emphasis that the District Court's authorization to deviate in part from the collective bargaining agreement would, as FEC readily concedes, terminate at the conclusion of the strike. At that time, the terms of the earlier collective bargaining agreement, except as modified by any new agreement of the parties, would be fully in force.
8
If FEC had precipitated the strike by refusing to arbitrate, then it would be barred by Brotherhood of Railroad Trainmen, Enterprise Lodge, No. 27 v. Toledo, P. & W.R. Co., 321 U.S. 50, 64 S.Ct. 413, 88 L.Ed. 534, from obtaining injunctive relief in the courts since it would have failed to make 'every reasonable effort' to settle the dispute within the meaning of § 8 of the Norris-LaGuardia Act, 47 Stat. 72, 29 U.S.C. § 108 (1964 ed.). And we assume that seeking relief from provisions of the collective bargaining agreements would have fallen under the same ban. But in the instant case both FEC and the unions refused voluntary arbitration and the strike followed. Later the unions changed their mind and agreed to arbitration, FEC refusing. But by then the strike was on and the right to 'self-help' had accrued. If an issue concerning the good faith of a party in refusing a pre-strike opportunity to arbitrate were presented, different considerations would apply.
Moreover, since the justification for permitting the carrier to depart from the terms of the collective bargaining agreement lies in its duty to continue to serve the public, a district court called upon to grant a carrier's relief from provisions of the collective bargaining agreement should satisfy itself that the carrier is engaged in a good-faith effort to restore service to the public and not, e.g., using the strike to curtail that service.
1
Congress has generally entrusted the specialized and unique affairs of the railroad industry to a few expert boards and agencies. Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 752, 65 S.Ct. 1282, 1303 (Frankfurter, J., dissenting). Permitting the wholesale intervention of the courts in this manner seems inconsistent with these congressional policies of uniformity and expert supervision. Cf. National Labor Relations Board v. Brown, 380 U.S. 278, 299, 85 S.Ct. 980, 992, 13 L.Ed.2d 839 (White, J., dissenting); American Ship Building Co. v. National Labor Relations Board, 380 U.S. 300, 325—327, 85 S.Ct. 955, 970—971, 13 L.Ed.2d 855 (White, J., concurring).
2
It is certainly questionable whether the procedures approved by the majority will minimize strikes or maximize settlements. This particular strike is one of the longest in railroad history. There can be no doubt that the procedures followed in this case have helped prolong the strike. For example, in part because of these procedures, Florida East Coast enjoyed a substantial increase in its operating profits during the strike period. See Brief for Government, p. 8, n. 7.
3
Cf. § 77(n) of the Bankruptcy Act, 11 U.S.C. § 205(n) (1964 ed.), which provides, 'No judge or trustee acting under this title shall change the wages or working conditions of railroad employees except in the manner prescribed in the Railway Labor Act * * *.' Burke v. Morphy, 2 Cir., 109 F.2d 572.
| 67
|
384 U.S. 251
86 S.Ct. 1416
16 L.Ed.2d 510
UNITED STATES, Appellant,v.Ben BLUE.
No. 531.
Argued April 21, 1966.
Decided May 23, 1966.
Solicitor Gen. Thurgood Marshall, for appellant.
Ernest R. Mortenson, Pasadena, Cal., for appellee.
Mr. Justice HARLAN delivered the opinion of the Court.
1
In 1962 the appellee, Ben Blue, was informed by the Internal Revenue Service that he might be criminally prosecuted for violation of the federal income tax laws. The following year the Service made jeopardy assessments against Blue, his wife, and his wholly owned corporation for tax liability for the years 1958 to 1960 inclusive; the known assets of all three were seized and tax liens recorded. Internal Revenue Code of 1954, §§ 6321—6323, 6331, 6861. Statutory notices were then issued giving Blue 90 days within which to file petitions if he wished to contest the proposed deficiencies in the Tax Court, I.R.C. § 6213, and Blue filed petitions setting forth his position and alleging errors in the Commissioner's determination of deficiencies. More than a year later the Government initiated the present criminal case by a six-count indictment charging Blue with wilfully attempting to evade personal income taxes for the years 1958 through 1960 and with filing false returns for his corporation during the same years. I.R.C. §§ 7201, 7206(1).
2
Blue filed a pretrial motion seeking dismissal of the indictment on several grounds. After a hearing the District Court granted the motion. The court stated orally that because of the jeopardy assessment and Tax Court proceeding Blue 'has been compelled and will be compelled to come forward on the same matters as are concerned in this criminal case, to testify against himself * * *.'1 The Government filed a notice of appeal and the case was docketed in the Court of Appeals for the Ninth Circuit. Determining that the District Court had sustained a 'motion in bar, when the defendant has not been put in jeopardy' so that a direct appeal lay to this Court,2 the Court of Appeals certified the case to us, 350 F.2d 267, and we postponed jurisdiction, 382 U.S. 971, 86 S.Ct. 534, 15 L.Ed.2d 463. We agree that this Court has jurisdiction over the appeal and, on the merits, reverse the decision of the District Court.
3
Since Blue had not yet been brought to trial and put in jeopardy when dismissal occurred, see United States v. Celestine, 215 U.S. 278, 283, 30 S.Ct. 93, 94, 54 L.Ed. 195, our jurisdiction under the statute is secure if the motion sustained by the District Court was a motion in bar. See, supra, n. 2. This in turn depends on 'the effect of the ruling sought to be reviewed,' United States v. Hark, 320 U.S. 531, 536, 64 S.Ct. 359, 361, 88 L.Ed. 290, and not on how the pleading is styled or on whether it is ultimately sustained on appeal. Like the Court of Appeals, we take the dismissal in this case as a ruling that absent reversal on review future prosecution of Blue on the pending counts is forever barred. While there are slight ambiguities in language, the District Court's dismissal was grounded in what it found to be past compulsory self-incrimination and in its apparent belief that this mischief could not be undone save by turning back the clock through ending the prosecution.
4
Because the dismissal by its own force would 'end the cause and exculpate the defendant,' United States v. Hark, 320 U.S., at 536, 64 S.Ct. at 362, rather than merely abate the prosecution on account of some normally curable defect, one requisite of a motion in bar is met. Whether it is a further requisite that the motion introduce 'new matter' in the fashion of a plea by way of confession and avoidance need not here be decided. See United States v. Mersky, 361 U.S. 431, 441, 453, 80 S.Ct. 459, 465, 474, 4 L.Ed.2d 423 (separate opinions disagreeing on this point). For in this instance Blue unquestionably relied on new matter in alleging self-incrimination, so the motion qualifies even under the more stringent definition. Thus under either view of a motion in bar taken in Mersky, this case qualifies for direct review. Our conclusion on the jurisdictional issue is further supported by two analogous decisions of this Court treating claims of statutory immunity as pleas in bar which permitted direct appeal. United States v. Hoffman, 335 U.S. 77, 68 S.Ct. 1413, 92 L.Ed. 1830; United States v. Monia, 317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376.
5
On the merits of the case, we do not believe that the District Court should have dismissed the indictment. The Government has argued that the statements made by Blue in his Tax Court petitions were no more than successive denials of the alleged underpayments and do not constitute incriminating evidence. The Government has also intimated that by merely providing the occasion for the filing of Blue's petitions in fulfilling its statutory duty to make jeopardy assessments and send deficiency notices, it ought not be regarded as compelling the taxpayer to incriminate himself within the meaning of the Fifth Amendment. There is no need, however, to consider these or other contentions that may point in the same direction.
6
Even if we assume that the Government did acquire incriminating evidence in violation of the Fifth Amendment, Blue would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial.3 While the general common-law practice is to admit evidence despite its illegal origins, this Court in a number of areas has recognized or developed exclusionary rules where evidence has been gained in violation of the accused's rights under the Constitution, federal statutes, or federal rules of procedure. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book.
7
We remand this case to the District Court to proceed on the merits, leaving Blue free to pursue his Fifth Amendment claim through motions to suppress and objections to evidence. It is not entirely clear from Blue's brief and argument whether he seeks to sustain the dismissal below on other grounds that the District Court did not accept. See, supra, n. 1. Putting to one side jurisdictional difficulties this course might encounter under the direct-review statute,4 we believe it is fairer to all to regard no other grounds as presented, thus reserving to Blue the opportunity to articulate them plainly and support them by the record.
8
Reversed and remanded.
1
The court stated that it based the dismissal 'on that ground alone.' It rejected a claim that the seizure of property and recording of tax liens had prevented Blue from preparing an adequate defense by depleting his resources. It did not expressly consider Blue's claim that there is an administrative practice of making no assessments in advance of criminal proceedings and that failure to extend the policy to him was a denial of due process.
2
18 U.S.C. § 3731 (1964 ed.) provides in part:
'An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances:
'From the decision or judgment sustaining a motion in bar, when the defendant has not been put n jeopardy.
'If an appeal shall be taken pursuant to this section to any court of appeals, which, in the opinion of such court, should have been taken directly to the Supreme Court of the United States, such court shall certify the case to the Supreme Court of the United States, which shall thereupon have jurisdiction to hear and determine the case to the same extent as if an appeal had been taken directly to that Court.'
3
It does not seem to be contended that tainted evidence was presented to the grand jury; but in any event our precedents indicate this would not be a basis for abating the prosecution pending a new indictment, let alone barring it altogether. See Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397; Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321; 8 Wigmore, Evidence § 2184a, at 40 (McNaughton rev. 1961).
4
See Stern & Gressman, Supreme Court Practice § 2—11, at 31 33 (1962); Friedenthal, Government Appeals in Federal Criminal Cases, 12 Stan.L.Rev. 71, 97—100 (1959).
| 01
|
384 U.S. 224
86 S.Ct. 1427
16 L.Ed.2d 492
UNITED STATES, Appellant,v.STANDARD OIL COMPANY.
No. 291.
Argued Jan. 25, 1966.
Decided May 23, 1966.
Nathan Lewin, Washington, D.C., for appellant.
Earl B. Hadlow, Jacksonville, for appellee.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The question presented for decision is whether the statutory ban on depositing 'any refuse matter of any kind or description'1 in a navigable water covers the discharge of commercially valuable aviation gasoline.
2
Section 13 of the Rivers and Harbors Act provides:
3
'It shall not be lawful to throw, discharge, or deposit * * * any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state into any navigable water of the United States * * *.' 33 U.S.C. § 407 (1964 ed.).
4
The indictment charged appellee, Standard Oil (Kentucky), with violating § 13 by allowing to be discharged into the St. Johns River 'refuse matter' consisting of 100-octane aviation gasoline. Appellee moved to dismiss the indictment, and, for the purposes of the motion, the parties entered into a stipulation of fact. It states that the gasoline was commercially valuable and that it was discharged into the St. Johns only because a shut-off valve at dockside had been 'accidentally' left open.
5
The District Court dismissed the indictment because it was of the view that the statutory phrase 'refuse matter' does not include commercially valuable oil. The United States appealed directly to this Court under the Criminal Appeals Act (18 U.S.C. § 3731 (1964 ed.)). We noted probable jurisdiction. 382 U.S. 807, 86 S.Ct. 68, 15 L.Ed.2d 57.
6
This case comes to us at a time in the Nation's history when there is greater concern than ever over pollution—one of the main threats to our free-flowing rivers and to our lakes as well. The crisis that we face in this respect would not, of course, warrant us in manufacturing offenses where Congress has not acted nor in stretching statutory language in a criminal field to meet strange conditions. But whatever may be said of the rule of strict construction, it cannot provide a substitute for common sense, precedent, and legislative history. We cannot construe § 13 of the Rivers and Harbors Act in a vacuum. Nor can we read it as Baron Parke2 would read a pleading.
7
The statutory words are 'any refuse matter of any kind or description.' We said in United States v. Republic Steel Corp., 362 U.S. 482, 491, 80 S.Ct. 884, 889, 4 L.Ed.2d 903, that the history of this provision and of related legislation dealing with our free-flowing rivers 'forbids a narrow, cramped reading' of § 13. The District Court recognized that if this were waste oil it would be 'refuse matter' within the meaning of § 13 but concluded that it was not within the statute because it was 'valuable' oil.3 That is 'a narrow, cramped reading' of § 13 in partial defeat of its purpose.
8
Oil is oil and whether useable or not by industrial standards it has the same deleterious effect on waterways. In either case, its presence in our rivers and harbors is both a menace to navigation and a pollutant. This seems to be the administrative construction of § 13, the Solicitor General advising us that it is the basis of prosecution in approximately one-third of the oil pollution cases reported to the Department of Justice by the Office of the Chief of Engineers.
Section 13 codified pre-existing statutes:
9
An 1886 Act (24 Stat. 329) made it unlawful to empty 'any ballast, stone, slate, gravel, earth, slack, rubbish, wreck, filth, slabs, edgings, sawdust, slag, or cinders, or other refuse or mill-waste of any kind, into New York Harbor'—which plainly includes valuable pre-discharge material.
10
An 1888 Act (25 Stat. 209) 'to prevent obstructive and injurious deposits' within the Horbor of New York and adjacent waters banned the discharge of 'refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind, other than that flowing from streets, sewers, and passing therefrom in a liquid state'—which also plainly includes valuable pre-discharge material. (Emphasis added.)
11
The 1890 Act (26 Stat. 453) made unlawful emptying into navigable waters 'any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, or other waste of any kind * * * which shall tend to impede or obstruct nevigation.' Here also valuable pre-discharge materials were included.
12
The 1894 Act (28 Stat. 363) prohibited deposits in harbors and rivers for which Congress had appropriated money for improvements, of 'ballast, refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind other than that flowing from streets, sewers, and passing therefrom in a liquid state.' (Emphasis added.) This Act also included valuable predischarge material.
13
The Acts of 1886 and 1888, then, dealt specifically with the New York Harbor; the scope of the latter was considerably broader, covering as it did the deposit of 'any other matter of any kind.' The Acts of 1890 and 1894 paralleled the earlier enactments pertaining to New York, applying their terms to waterways throughout the Nation.
14
The 1899 Act now before us was no more than an attempt to consolidate these prior Acts into one. It was indeed stated by the sponsor in the Senate to be 'in accord with the statutes now in existence, only scattered * * * from the beginning of the statutes down through to the end' (32 Cong.Rec. 2296), and reflecting merely '(v)ery slight changes to remove ambiguities.' Id., p. 2297.
15
From an examination of these statutes, several points are clear. First, the 1894 Act and its antecedent, the 1888 Act applicable to the New York Harbor,4 drew on their face no distinction between valuable and valueless substances. Second, of the enumerated substances, some may well have had commercial or industrial value prior to discharge into the covered waterways. To be more specific, ashes and acids were banned whether or not they had any remaining commercial or industrial value. Third, these Acts applied not only to the enumerated substances but also to the discharge of 'any other matter of any kind.' Since the enumerated substances included those with a pre-discharge value, the rule of ejusdem generis does not require limiting this latter category to substances lacking a pre-discharge value. Fourth, the coverage of these Acts was not diminished by the codification of 1899. The use of the term 'refuse' in the codification serves in the place of the lengthy list of enumerated substances found in the earlier Acts and the catch-all provision found in the Act of 1890. The legislative history demonstrates without contradiction that Congress intended to codify without substantive change the earlier Acts.
16
The philosophy of those antecedent laws seems to us to be clearly embodied in the present law. It is plain from its legislative history that the 'serious injury' to our watercourses (S.Rep.No. 224, 50th Cong., 1st Sess., p. 2) sought to be remedied was caused in part by obstacles that impeded navigation and in part by pollution—'the discharge of sawmill waste into streams' (ibid.) and the injury of channels by 'deposits of ballast, steamboat ashes, oysters, and rubbish from passing vessels.' Ibid. The list is obviously not an exhaustive list of pollutants. The words of the Act are broad and inclusive: 'any refuse matter of any kind or description whatever.' Only one exception is stated: 'other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States.' More comprehensive language would be difficult to select. The word 'refuse' does not stand alone; the 'refuse' banned is 'of any kind or description whatever,' apart from the one exception noted. And, for the reasons already stated, the meaning we must give the term 'refuse' must reflect the present codification's statutory antecedents.
17
The Court of Appeals for the Second Circuit in United States v. Ballard Oil Co., 195 F.2d 369 (L. Hand, Augustus Hand, and Harrie Chase, JJ.) held that causing good oil to spill into a watercourse violated § 13. The word 'refuse' in that setting, said the court, 'is satisfied by anything which has become waste, however useful it may earlier have been.'5 Id., p. 371. There is nothing more deserving of the label 'refuse' than oil spilled into a river.
18
That seems to us to be the common sense of the matter. The word 'refuse' includes all foreign substances and pollutants apart from those 'flowing from streets and sewers and passing therefrom in a liquid state' into the watercourse.
19
That reading of § 13 is in keeping with the teaching of Mr. Justice Holmes that a 'river is more than an amenity, it is a treasure.' State of New Jersey v. State of New York, 283 U.S. 336, 342, 51 S.Ct. 478, 479, 75 L.Ed. 1104. It reads § 13 charitably as United States v. Republic Steel Corp., supra, admonished.
20
We pass only on the quality of the pollutant, not on the quantity of proof necessary to support a conviction nor on the question as to what scienter requirement the Act imposes, as those questions are not before us in this restricted appeal.6
21
Reversed.
22
Mr. Justice HARLAN, whom Mr. Justice BLACK and Mr. Justice STEWART join, dissenting.
23
Had the majority in judging this case been content to confine itself to applying relevant rules of law and to leave policies affecting the proper conservation of the Nation's rivers to be dealt with by the Congress, I think that today's decision in this criminal case would have eventuated differently. The best that can be said for the Government's case is that the reach of the provision of s 13 of the Rivers and Harbors Act of 1899, 30 Stat. 1152, 33 U.S.C. § 407 (1964 ed.), under which this indictment is laid, is uncertain. This calls into play the traditional rule that penal statutes are to be strictly construed. In my opinion application of that rule requires a dismissal of the indictment.
I.
24
Section 13 forbids the deposit of all kinds of 'refuse matter' into navigable rivers 'other than that flowing from streets and sewers and passing therefrom in a liquid state.' As the Court notes, this 1899 Act was part of a codification of prior statutes. This revamping was not discussed at any length on the floor of either House of Congress; the Senate was informed only that the provisions were merely a codification of existing law, without changes in substance. 32 Cong.Rec. 2296—2297 (1899). Section 13 was in fact based on two very similar prior statutes. The rivers and harbors appropriation act of 1890 provided the first national anti-obstruction provision, 26 Stat. 453:
25
'Sec. 6. That it shall not be lawful to cast, throw, empty, or unlade, or cause, suffer, or procure to be cast, thrown, emptied, or unladen, either from or out of any ship, vessel, lighter, barge, boat, or other craft, or from the shore, pier, wharf, furnace, manufacturing establishments, or mills of any kind whatever, any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, or other waste of any kind, into any port, road, roadstead, harbor, haven, navigable river, or navigable waters of the United States which shall tend to impede or obstruct navigation * * *.'
26
A later statute, § 6 of the Rivers and Harbors Act of 1894, 28 Stat. 363, provided somewhat similarly:
27
'That it shall not be lawful to place, discharge, or deposit, by any process or in any manner, ballast, refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind other than that flowing from streets, sewers, and passing therefrom in a liquid state, in the waters of any harbor or river of the United States, for the improvement of which money has been appropriated by Congress * * *.'
28
The Court relies primarily on the latter Act, contending that its applicability to 'any other matter of any kind' would surely encompass oil even though commercially valuable. Further, the Court notes (ante, p. 228) that the 1894 statute was modeled after a federal statute of 1888 dealing with New York Harbor, 25 Stat. 209. Under this New York Harbor Act, which still remains on the books, 33 U.S.C. § 441 et seq. (1964 ed.), prosecutions for accidental deposits of commercially useful oil have been sustained. The Colombo, 2 Cir., 42 F.2d 211. This background is thought to reinforce the view that oil of any type would fall within the 1894 statute's purview. Since the present enactment was intended to be merely a codification, the majority concludes that the construction of the broader 1894 predecessor should govern.
29
Whatever might be said about how properly to interpret the 1890 and, more especially, the 1894 statutes, it is the 1899 Act that has been on the books for the last 67 years, and its purposes and language must guide the determination of this case. To the extent that there were some differences in scope between the 1890 and 1894 Acts, these were necessarily resolved in the 1899 codification, which, while embodying the essential thrust of both prior statutes, appears from its plain language to have favored the more restrictive coverage of the 1890 Act. Moreover, it is questionable to what extent the Court's speculation as to the meaning of a phrase in one of the prior statutes is relevant at all when the language of the present statute, which is penal in nature, is in itself explicit and unambiguous.
30
The purpose of § 13 was essentially to eliminate obstructions to navigation and interference with public works projects. This 1899 enactment, like the two preexisting statutes which it was intended to codify, was a minor section attached to a major appropriation act together with other measures dealing with sunken wrecks,1 trespassing at public works sites,2 and obstructions caused by improperly constructed bridges, piers, and other structures.3 These statutes were rendered necessary primarily because navigable rivers, which the Congress was appropriating funds to improve, were being obstructed by depositing of waste materials by factories and ships.4 It is of course true, as the Court observes, that 'oil is oil,' ante, p. 226, and that the accidental spillage of valuable oil may have substantially the same 'deleterious effect on waterways' as the wholesale depositing of waste oil. But the relevant inquiry is not the admittedly important concerns of pollution control, but Congress' purpose in enacting this anti-obstruction Act, and that appears quite plainly to be a desire to halt through the imposition of criminal penalties the depositing of obstructing refuse matter in rivers and harbors.
31
The Court's construction eschews the everyday meaning of 'refuse matter'—waste, rubbish, trash, debris, garbage, see Webster's New International Dictionary, 3d ed.—and adopts instead an approach that either reads 'refuse' out of the Act altogether, or gives to it a tortured meaning. The Court declares, at one point, that 'The word 'refuse' includes all foreign substances and pollutants apart from those 'flowing from streets and sewers and passing therefrom in a liquid state' into the watercourse.' Ante, p. 230. Thus, dropping anything but pure water into a river would appear to be a federal misdemeanor. At the same time, the Court also appears to endorse the Second Circuit's somewhat narrower view that 'refuse matter' refers to any material, however valuable, which becomes unsalvageable when introduced into the water. Ante, pp. 229-230. On this latter approach, the imposition of criminal penalties would in effect depend in each instance on a prospective estimate of salvage costs. Such strained definitions of a phrase that is clear as a matter of ordinary English hardly commend themselves, and at the very least raise serious doubts as to the intended reach of § 13.
II.
32
Given these doubts as to the proper construction of 'refuse matter' in § 13, we must reckon with a traditional canon that a penal statute will be narrowly construed. See II Hale, Historia Placitorum Coronae 335 (1736); United States v. Wiltberger, 5 Wheat. 76 95, 5 L.Ed. 37. The reasons underlying this maxim are various. It appears likely that the rule was originally adopted in order to spare people from the effects of exceedingly harsh penalties. See Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv.L.Rev. 748, 750 (1935). Even though this rationale might be thought to have force were the defendant a natural person,5 I cannot say that it is particularly compelling in this instance where the maximum penalty to which Standard Oil might be subject is a fine of $2,500. 33 U.S.C. § 411 (1964 ed.)
33
A more important contemporary purpose of the notion of strict construction is to give notice of what the law is, in order to guide people in their everyday activities. Again, however, it is difficult to justify a narrow reading of § 13 on this basis. The spilling of oil of any type into rivers is not something one would be likely to do whether or not it is legally proscribed by a federal statute. A broad construction would hardly raise dangers of penalizing people who have been innocently pouring valuable oil into navigable waters, for such conduct in Florida is unlawful whatever the effect of § 13. A Florida statute penalizing as a misdemeanor the depositing into waters within the State of 'any rubbish, filth, or poisonous or deleterious substance or substances, liable to affect the health of persons, fish, or live stock * * *,' Fla.Stat. Ann., § 387.08 (1960 ed.), F.S.A., quite evidently reaches the dumping of commercial oil. And Florida's nuisance law would likewise seem to make this conduct actionable in equity. See, e.g., Ferry Pass Inspectors' & Shippers' Assn. v. Whites River Inspectors' & Shippers' Assn., 57 Fla. 399, 48 So. 643, 22 L.R.A., N.S., 345. Finally, as noted earlier, ante, p. 229, n. 5, prior decisions by some lower courts have held § 13 applicable to spillage of oil. For these reasons this justification for the canon of strict construction is not persuasive in this instance.
34
There is, however, a further reason for applying a seemingly straight-forward statute in a straightforward way. In McBoyle v. United States, 283 U.S. 25, 51 S.Ct. 340, 75 L.Ed. 816, this Court held that a statute making it a federal crime to move a stolen 'motor vehicle' in interstate commerce did not apply to a stolen airplane. That too was a case in which precise clarity was not required in order to give due warning of the line between permissible and wrougful conduct, for there could not have been any question but that stealing aircraft was unlawful. Nevertheless, Mr. Justice Holmes declared that 'Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.' 283 U.S., at 27, 51 S.Ct., at 341. The policy thus expressed is based primarily on a notion of fair play: in a civilized state the least that can be expected of government is that it express its rules in language all can reasonably be expected to understand. Moreover, this requirement of clear expression is essential in a practical sense to confine the discretion of prosecuting authorities, particularly important under a statute such as § 13 which imposes criminal penalties with a minimal, if any, scienter requirement.6
35
In an area in which state or local law has traditionally regulated primary activity,7 there is good reason to restrict federal penal legislation within the confines of its language. If the Federal Government finds that there is sufficient obstruction or pollution of navigable waters caused by the introduction of commercial oil or other nonrefuse material, it is an easy matter to enact appropriate regulatory or penal legislation.8 Such legislation can be directed at specific types of pollution, and the remedies devised carefully to ensure compliance. Indeed, such a statute was enacted in 1924 to deal with oil pollution in coastal waters caused by vessels, 43 Stat. 605, 33 U.S.C. §§ 433, 434 (1964 ed.).
36
To conclude that this attempted prosecution cannot stand is not to be oblivious to the importance of preserving the beauties and utility of the country's rivers. It is simply to take the statute as we find it. I would affirm the judgment of the District Court.
1
30 Stat. 1152, 33 U.S.C. § 407 (1964 ed.).
2
A man whose 'fault was an almost superstitious reverence for the dark technicalities of special pleading.' XV Dictionary of National Biography, p. 226 (Stephen and Lee ed. 1937—1938).
3
The District Court followed the decision of the United States District Court in United States v. The Delvalle, 45 F.Supp. 746, 748, where it was said: 'The accidental discharge of valuable, usable oil * * * does not constitute * * * a violation of the statute.' (Emphasis added.)
4
The codification did not include the Acts of 1886 and 1888 which pertained only to New York. These remain in effect and are found at 33 U.S.C. §§ 441—451 (1964 ed.). The New York Harbor statute has been held to apply not only to waste oil which was unintentionally discharged (The Albania, D.C., 30 F.2d 727) but also to valuable oil negligently discharged. The Colombo, 2 Cir., 42 F.2d 211.
5
The decisions in the instant case below and in United States v. The Delvalle, supra, n. 3, are against the stream of authority. An unreported decision of a United States District Court in 1922 (United States v. Crouch), holding § 13 inapplicable to polluting but nonobstructing deposits caused the Oil Pollution Act, 1924, 43 Stat. 604, 33 U.S.C. § 431 et seq. (1964 ed.), to be passed. See S.Rep.No.66, 68th Cong., 1st Sess.; H.R.Rep.No.794, 68th Cong., 1st Sess. It is applicable to the discharge of oil by vessels into coastal waters but not to deposits into inland navigable waters; and it explicitly provides that it does not repeal or modify or in any manner affect other existing laws. 33 U.S.C. § 437 (1964 ed.).
6
'Having dealt with the construction placed by the court below upon the Sherman Act, our jurisdiction on this appeal is exhausted. We are not at liberty to consider other objections to the indictment or questions which may arise upon the trial with respect to the merits of the charge. For it is well settled that where the District Court has based its decision on a particular construction of the underlying statute, the review here under the Criminal Appeals Act is confined to the question of the propriety of that construction.' United States v. Borden Co., 308 U.S. 188, 206—207, 60 S.Ct. 182, 192, 84 L.Ed. 181.
1
Rivers and Harbors Act of 1899, § 15, 30 Stat. 1152, 33 U.S.C. § 409 (1964 ed.).
2
Rivers and Harbors Act of 1899, § 14, 30 Stat. 1152, 33 U.S.C. § 408 (1964 ed.).
3
Rivers and Harbors Act of 1899, § 12, 30 Stat. 1151, 33 U.S.C. § 406 (1964 ed.).
4
Congress was presented, when considering one of the predecessors of the 1899 Act, with the representations of the Office of the Chief of Army Engineers that there had been 'serious injury to navigable waters by the discharge of sawmill waste into streams. * * * In fairways of harbors, channels are injured from deposits of ballast, steam-boat ashes, oysters, and rubbish from passing vessels.' S.Rep.No.224, 50th Cong., 1st Sess., 2 (1888). See also H.R.Rep.No.1826, 55th Cong., 3d Sess., 3—4 (1899). There is no support for the proposition that these statutes were directed at 'pollution' independently of 'obstruction.'
5
The minimum sentence for an individual convicted of violating § 13 is a $500 fine or 30 days' imprisonment, not an insignificant penalty for accidentally dropping foreign matter into a river. 33 U.S.C. § 411 (1964 ed.).
6
The parties were not in agreement as to what scienter requirement the statute imposes. This question is not before us under the restricted jurisdiction granted to this Court under 18 U.S.C. § 3731 (1964 ed.), see United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877; United States v. Borden Co., 308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181, and the Court today intimates no views on the question.
7
Besides the Florida pollution statute adverted to earlier, Fla.Stat.Ann., § 387.08 (1960 ed.), F.S.A., the city of Jacksonville has enacted ordinances dealing generally with fire prevention, Jacksonville Ordinance Code §§ 19—4.1 to 19—4.24 (1958 Supp.), disposal of waste material, § 21—12 (1958 Supp.), and pollution of the city water supply, § 27—52 (1953 Code).
8
See, e.g., special message of the President dealing with new anti-pollution legislation, Preservation of Our Natural Heritage—Message from the President of the United States, H.Doc.No.387, 89th Cong., 2d Sess., Cong.Rec., Feb. 23, 1966, pp. 3519—3522.
| 78
|
384 U.S. 214
86 S.Ct. 1434
16 L.Ed.2d 484
James E. MILLS, Appellant,v.STATE OF ALABAMA.
No. 597.
Argued April 19, 1966.
Decided May 23, 1966.
Kenneth Perrine and Alfred Swedlaw, Birmingham, Ala., for appellant.
Burgin Hawkins, Birmingham, Ala., and Leslie Hall, Montgomery, Ala., for appellee.
Mr. Justice BLACK delivered the opinion of the Court.
1
The question squarely presented here is whether a State, consistently with the United States Constitution, can make it a crime for the editor of a daily newspaper to write and publish an editorial on election day urging people to vote a certain way on issues submitted to them.
2
On November 6, 1962, Birmingham, Alabama, held an election for the people to decide whether they preferred to keep their existing city commission form of government or replace it with a mayor-council government. On election day the Birmingham Post-Herald, a daily newspaper, carried an editorial written by its editor, appellant, James E. Mills, which strongly urged the people to adopt the mayor-council form of government.1 Mills was later arrested on a complaint charging that by publishing the editorial on election day he had violated § 285 of the Alabama Corrupt Practices Act, Ala.Code, 1940, Tit. 17, §§ 268 286, which makes it a crime 'to do any electioneering or to solicit any votes * * * in support of or in opposition to any proposition that is being voted on on the day on which the election affecting such candidates or propositions is being held.'2 The trial court sustained demurrers to the complaint on the grounds that the state statute abridged freedom of speech and press in violation of the Alabama Constitution and the First and Fourteenth Amendments to the United States Constitution. On appeal by the State, the Alabama Supreme Court held that publication of the editorial on election day undoubtedly violated the state law and then went on to reverse the trial court by holding that the state statute as applied did not unconstitutionally abridge freedom of speech or press. Recognizing that the state law did limit and restrict both speech and press, the State Supreme Court nevertheless sustained it as a valid exercise of the State's police power chiefly because, as that court said, the press 'restriction, everything considered, is within the field of reasonableness' and 'not an unreasonable limitation upon free speech, which includes free press.' 278 Ala. 188, 195, 196, 176 So.2d 884, 890. The case is here on appeal under 28 U.S.C. § 1257 (1964 ed.).
I.
3
The State has moved to dismiss this appeal on the ground that the Alabama Supreme Court's judgment is not a 'final judgment' and therefore not appealable under § 1257.3 The State argues that since the Alabama Supreme Court remanded the case to the trial court for further proceedings not inconsistent with its opinion (which would include a trial), the Supreme Court's judgment cannot be considered 'final.' This argument has a surface plausibility, since it is true the judgment of the State Supreme Court did not literally end the case. It did, however, render a judgment binding upon the trial court that it must convict Mills under this state statute if he wrote and published the editorial. Mills concedes that he did, and he therefore has no defense in the Alabama trial court. Thus if the case goes back to the trial court, the trial, so far as this record shows, would be no more than a few formal gestures leading inexorably towards a conviction, and then another appeal to the Alabama Supreme Court for it formally to repeat its rejection of Mills' constitutional contentions whereupon the case could then once more wind its weary way back to us as a judgment unquestionably final and appealable. Such a roundabout process would not only be an inexcusable delay of the benefits Congress intended to grant by providing for appeal to this Court, but it would also result in a completely unnecessary waste of time and energy in judicial systems already troubled by delays due to congested dockets.4 The language of § 1257 as we construed it in Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 381—383, 73 S.Ct. 749, 750—751, 97 L.Ed. 1094, does not require a result leading to such consequences. See also Local No. 438 Construction & General Laborers' Union, AFL-CIO v. Curry, 371 U.S. 542, 548 551, 83 S.Ct. 531, 535—537, 8 L.Ed.2d 236; Richfield Oil Corp. v. State Board, 329 U.S. 69, 72—74, 67 S.Ct. 156, 158—159, 91 L.Ed. 80. Following those cases we hold that we have jurisdiction.
II.
4
We come now to the merits. The First Amendment, which applies to the States through the Fourteenth, prohibits laws 'abridging the freedom of speech, or of the press.' The question here is whether it abridges freedom of the press for a State to punish a newspaper editor for doing no more than publishing an editorial on election day urging people to vote a particular way in the election. We should point out at once that this question in no way involves the extent of a State's power to regulate conduct in and around the polls in order to maintain peace, order and decorum there. The sole reason for the charge that Mills violated the law is that he wrote and published an editorial on election day urging Birmingham voters to cast their votes in favor of changing their form of government.
5
Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes. The Constitution specifically selected the press, which includes not only newspapers, books, and magazines, but also humble leaflets and circulars, see Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949, to play an important role in the discussion of public affairs. Thus the press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve. Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change, which is all that this editorial did, muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free. The Alabama Corrupt Practices Act by providing criminal penalties for publishing editorials such as the one here silences the press at a time when it can be most effective. It is difficult to conceive of a more obvious and flagrant abridgment of the constitutionally guaranteed freedom of the press.
6
Admitting that the state law restricted a newspaper editor's freedom to publish editorials on election day, the Alabama Supreme Court nevertheless sustained the constitutionality of the law on the ground that the restrictions on the press were only 'reasonable restrictions' or at least 'within the field of reasonableness.' The court reached this conclusion because it thought the law imposed only a minor limitation on the press restricting it only on election days—and because the court thought the law served a good purpose. It said:
7
'It is a salutary legislative enactment that protects the public from confusive last-minute charges and countercharges and the distribution of propaganda in an effort to influence voters on an election day; when as a practical matter, because of lack of time, such matters cannot be answered or their truth determined until after the election is over.' 278 Ala. 188, 195—196, 176 So.2d 884, 890.
8
This argument, even if it were relevant to the constitutionality of the law, has a fatal flaw. The state statute leaves people free to hurl their campaign charges up to the last minute of the day before election. The law held valid by the Alabama Supreme Court then goes on to make it a crime to answer those 'last-minute' charges on election day, the only time they can be effectively answered. Because the law prevents any adequate reply to these charges, it is wholly ineffective in protecting the electorate 'from confusive last-minute charges and countercharges.' We hold that no test of reasonableness can save a state law from invalidation as a violation of the First Amendment when that law makes it a crime for a newspaper editor to do no more than urge people to vote one way or another in a publicly held election.
9
The judgment of the Supreme Court of Alabama is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
10
It is so ordered.
11
Judgment reversed and case remanded.
12
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN joins, concurring.
13
Although I join the opinion of the Court, I think it appropriate to add a few words about the finality of the judgment we reverse today, particularly in view of the observation in the separate opinion of Mr. Justice HARLAN that 'limitations on the jurisdiction of this Court * * * should be respected and not turned on and off at the pleasure of its members or to suit the convenience of litigants.'
14
The decision of the Alabama Supreme Court approved a law which, in my view, is a blatant violation of freedom of the press. The threat of penal sanctions has, we are told, already taken its toll in Alabama: the Alabama Press Association and the Southern Newspaper Publishers Association, as amici curiae, tell us that since November 1962 editorial comment on election day has been nonexistent in Alabama. The chilling effect of this prosecution is thus anything but hypothetical; it is currently being experienced by the newspapers and the people of Alabama.
15
We deal here with the rights of free speech and press in a basic form: the right to express views on matters before the electorate. In light of appellant's concession that he has no other defense to offer should the case go to trial, compare Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 73 S.Ct. 749, 97 L.Ed. 1094; Richfield Oil Corp. v. State Board, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80, and considering the importance of the First Amendment rights at stake in this litigation, it would require regard for some remote, theoretical interests of federalism to conclude that this Court lacks jurisdiction because of the unlikely possibility that a jury might disregard a trial judge's instructions and acquit.
16
Indeed, even had appellant been unwilling to concede that he has no defense—apart from the constitutional question—to the charges against him, we would be warranted in reviewing this case. That result follows a fortiori from our holdings that where First Amendment rights are jeopardized by a state prosecution which, by its very nature, threatens to deter others from exercising their First Amendment rights, a federal court will take the extraordinary step of enjoining the state prosecution. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22; Cameron v. Johnson, 381 U.S. 741, 85 S.Ct. 1751, 14 L.Ed.2d 715. As already noted, this case has brought editorial comment on election day to a halt throughout the State of Alabama. Our observation in NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405, has grim relevance here: 'The threat of sanctions may deter * * * exercise (of First Amendment rights) almost as potently as the actual application of sanctions.'*
17
For these reasons, and for the reasons stated in the opinion of the Court, I conclude that the judgment is final.
18
Separate opinion of Mr. Justice HARLAN.
19
In my opinion the appellant is not here on a 'final' state judgment and therefore under 28 U.S.C. § 1257 (1964 ed.) the Court has no jurisdiction to entertain this appeal. Republic Natural Gas Co. v. State of Oklahoma, 334 U.S. 62, 68 S.Ct. 972, 92 L.Ed. 1212; cf. Parr v. United States, 351 U.S. 513, 76 S.Ct. 912, 100 L.Ed. 1377.
20
Although his demurrer to the criminal complaint has been overruled by the highest court of the State, the appellant still faces a trial on the charges against him. If the jury1 fails to convict—a possibility which, unless the courtroom antennae of a former trial lawyer have become dulled by his years on the bench, is by no means remote in a case so unusual as this one is—the constitutional issue now decided will have been prematurely adjudicated. But even were one mistaken in thinking that a jury might well take the bit in its teeth and acquit, despite the Alabama Supreme Court's ruling on the demurrer and the appellant's admitted authorship of the editorial in question, the federal statute nonetheless commands us not to adjudicate the issue decided until the prosecution has run its final course in the state courts, adversely to the appellant.
21
Although of course much can be said in favor of deciding the constitutional issue now, and both sides have indicated their desire that we do so, I continue to believe that constitutionally permissible limitations on the jurisdiction of this Court, such as those contained in § 1257 undoubtedly are, should be respected and not turned on and off at the pleasure of its members or to suit the convenience of litigants.2 If the traditional federal policy of 'finality' is to be changed, Congress is the body to do it. I would dismiss this appeal for want of jurisdiction.
22
Since the Court has decided otherwise, however, I feel warranted in making a summary statement of my views on the merits of the case. I agree with the Court that the decision below cannot stand. But I would rest reversal on the ground that the relevant provision of the Alabama statute—'to do any electioneering or to solicit any votes (on election day) * * * in support of or in opposition to any proposition that is being voted on on the day on which the election affecting such candidates or propositions is being held'—did not give the appellant, particularly in the context of the rest of the statute (ante, 216, n. 2) and in the absence of any relevant authoritative state judicial decision, fair warning that the publication of an editorial of this kind was reached by the foregoing provisions of the Alabama Corrupt Practices Act. See Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. I deem a broader holding unnecessary.
1
The editorial said in part: 'Mayor Hanes' proposal to buy the votes of city employees with a promise of pay raises which would cost the taxpayers nearly a million dollars a year was cause enough to destroy any confidence the public might have had left in him.
'It was another good reason why the voters should vote overwhelmingly today in favor of Mayor-Council government.
'Now Mr. Hanes, in his arrogance, proposes to set himself up as news censor at City Hall and 'win or lose' today he says he will instruct all city employees under him to neither give out news regarding the public business with which they are entrusted nor to discuss it with reporters either from the Post-Herald or the News.
'If Mayor Hanes displays such arrogant disregard of the public's right to know on the eve of the election what can we expect in the future if the City Commission should be retained?
'Let's take no chances.
'Birmingham and the people of Birmingham deserve a better break. A vote for Mayor-Council government will give it to them.'
2
'§ 285 (599) Corrupt practices at elections enumerated and defined.—It is a corrupt practice for any person on any election day to intimidate or attempt to intimidate an elector or any of the election officers; or, obstruct or hinder or attempt to obstruct or hinder, or prevent or attempt to prevent the forming of the lines of the voters awaiting their opportunity or time to enter the election booths; or to hire or to let for hire any automobile or other conveyance for the purpose of conveying electors to and from the polls; or, to do any electioneering or to solicit any votes or to promise to cast any votes for or against the election or nomination of any candidate, or in support of or in opposition to any proposition that is being voted on on the day on which the election affecting such candidates or propositions is being held.' Ala.Code, 1940, Tit. 17.
3
Section 1257 provides in part: 'Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court * * *.'
4
This case was instituted more than three and one-half years ago. If jurisdiction is refused, we cannot know that it will not take another three and one-half years to get this constitutional question finally determined.
*
In California v. Stewart, 383 U.S. 903, 86 S.Ct. 882, 15 L.Ed.2d 661, where a state court reversed a criminal conviction on federal grounds, we ruled on a motion to dismiss that the State may obtain review in this Court even though a new trial remained to be held. We reached that conclusion because otherwise the State would be permanently precluded from raising the federal question, state law not permitting the prosecution to appeal from an acquittal. And see Local No. 438 Construction & General Laborers' Union, AFL-CIO v. Curry, 371 U.S. 542, 83 S.Ct. 531, 8 L.Ed.2d 36; Mercantile National Bank v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523.
1
At oral argument in this Court appellant's counsel conceded that a jury trial was still obtainable, see Ala.Code, Tit. 13, § 326; Tit. 15, § 321 (1958 Recomp.), and that it might result in an acquittal.
2
Compare Local 438 Construction & General Laborers' Union, AFL—CIO v. Curry, 371 U.S. 542, 83 S.Ct. 531, 8 L.Ed.2d 236, and Mercantile National Bank v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523. The three cases cited by the Court, ante, p. 218, fall short of supporting the 'finality' of the judgment before us. None of them involved jury trials, and in each instance the case was returned to the lower court in a posture where as a practical matter all that remained to be done was to enter judgment. What is done today more than over erodes the final judgment rule.
| 23
|
384 U.S. 257
86 S.Ct. 1412
16 L.Ed.2d 516
UNITED STATES, Appellant,v.John W. COOK.
No. 256.
Argued April 19, 1966.
Decided May 23, 1966.
Jerome Feit, Washington, D. C., for appellant.
Thomas H. Peebles, III, Nashville, Tenn., for appellee, pro hac vice, by special leave of Court.
Mr. Justice WHITE delivered the opinion of the Court.
1
The question presented is whether 18 U.S.C. § 660 (1964 ed.), which prohibits certain embezzlements by employees of 'any firm, association, or corporation engaged in commerce as a common carrier,'1 applies to the conduct of an employee of an individual doing business as a common carrier. The indictment in this case charged that, while riding on his employer's truck, appellee, 'a truck driver for Tolbert Hawkins, an individual engaged in commerce as a common carrier,' embezzled approximately $200 from funds of his employer accruing from an interstate shipment of bananas. Holding that the indictment failed to charge an offense within § 660 because it charged that appellee acted as an employee of 'an individual' while § 660 forbids the proscribed acts only when committed by employees of a 'firm, association, or corporation,' the District Court dismissed the indictment. Accord, Schmokey v. United States, 182 F.2d 937 (C.A. 10th Cir. 1950). The United States brought a direct appeal pursuant to 18 U.S.C. § 3731 (1964 ed.), and we noted probable jurisdiction, 382 U.S. 953, 86 S.Ct. 427, 15 L.Ed.2d 358.
2
Section 660 punishes embezzlements from a common carrier by either (1) 'a president, director, officer, or manager of any firm, association, or corporation engaged in commerce as a common carrier,' or (2) 'an employee of such common carrier riding in or upon any * * * vehicle of such carrier moving in interstate commerce.'2 The present form of the statute dates from the 1948 revision of the Criminal Code. Prior to that time, the separate groups—named executives, and employees riding in vehicles in commerce—were the subject of distinct criminal provisions. 18 U.S.C. § 412 (1946 ed.), like the present § 660, applied to named executives of 'any firm, association, or corporation engaged in commerce as a common carrier.'3 18 U.S.C. § 409(a)(5) (1946 ed.) applied to employees of 'any carrier,' with no express limitation relating to the form of the employer's ownership.4 The legislative history including a 1946 revision expanding the coverage of the section to all modes of transportation—and the prevalent usage of the expression 'any carrier' in statutes regulating commerce convincingly establish that § 409(a)(5) embraced employees of individual proprietorships. As this much is conceded by appellee, we need not detail that legislative history and common usage here. Appellee urges, however, that the phrase 'firm, association, or corporation' absorbed into § 660 from the earlier executive provision, § 412, is not sufficiently broad to include individual proprietors; that the revision in 1948 therefore narrowed the coverage of the employee provision; and that this result is compelled by the general canon of construction that criminal statutes are to be strictly construed. The United States counters that the choice of the language used in the predecessor executive provision, rather than that in the predecessor employee provision, was merely a stylistic preference not evidencing any intent to narrow coverage of employee offenders and that a 'firm' may be any business organization, whether individually owned or otherwise.
3
We think the position of the United States is sound and we reverse the District Court. There is no doubt that the 1946 statute covered employees of individuals and in our view it was not intended by adopting the 1948 revision of the Code to make any substantive change in the law by excluding from its coverage the employees of any class of carrier who had been previously covered. The general purpose of the new Code was to 'codify and revise * * *. The original intent of Congress is preserved,' S.Rep. No. 1620, 80th Cong., 2d Sess., p. 1, and with respect to the new § 660, the reviser's note, while noting the consolidation of a portion of § 409 and § 412 and stating that '[c]hanges were made in phraseology,' disclosed no intention of making any change in the substantive content or the coverage of the law. See legislative history note following 18 U.S.C. § 660 (1964 ed.). To us the congressional intent to reach the employees of any carrier, whatever the form of business organization, seems reasonably clear.
4
Appellee relies principally upon the abandonment of the words 'employee of any carrier' and the substitution of the present language of § 660 which does not expressly include the employees of 'any person' or 'any individual' doing business as a common carrier. But the term 'firm' is certainly broad enough in common usage to embrace individuals acting as common carriers;5 and in those instances where Congress has explicitly indicated its understanding of the term, the definition of 'firm' has included individual proprietorships. 19 U.S.C. § 1806(3) (1964 ed.); 19 U.S.C. § 2022(l)(3) (1964 ed., Supp. I).6
5
Nor has any plausible reason been advanced for drawing a distinction between employees of individuals and employees of partnership or corporate common carriers. The possible burden to interstate commerce or the need for federal jurisdiction to supplement state jurisdiction—in view of the frequent difficulty of showing in what State the crime occurred—does not vary with the form of business organization. On the other hand, since a large portion of common carriers are individually owned proprietorships,7 acceptance of appellee's interpretation of § 660 would exclude a substantial segment of the industry from the coverage of the Act—a result that should not be inferred from the 1948 'changes * * * in phraseology' without some specific indication that Congress had receded from the intention it clearly expressed in 1946 of expanding coverage of the Act to all carriers. See S.Rep. No. 1632, 79th Cong., 2d Sess.
6
We are mindful of the maxim that penal statutes should be strictly construed. But that canon 'is not an inexorable command to override common sense and evident statutory purpose,' United States v. Brown, 333 U.S. 18, 25, 68 S.Ct. 376, 380, 92 L.Ed. 442, and does not 'require that the act be given the 'narrowest meaning.' It is sufficient if the words are given their fair meaning in accord with the evident intent of Congress.' United States v. Raynor, 302 U.S. 540, 552, 58 S.Ct. 353, 359, 82 L.Ed. 413; see also United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594; United States v. A & P Trucking Co., 358 U.S. 121, 79 S.Ct. 203, 3 L.Ed.2d 165; United States v. Shirey, 359 U.S. 255, 79 S.Ct. 746, 3 L.Ed.2d 789. In this case the fair meaning of the term in dispute—as evidenced by common usage and its statutory meaning in other contexts—and the manifest intention of Congress in using it here lead us to conclude that § 660 encompasses embezzlements by employees of individual proprietorships.
7
Reversed.
1
'Whoever, being a president, director, officer, or manager of any firm, association, or corporation engaged in commerce as a common carrier, or whoever, being an employee of such common carrier riding in or upon any railroad car, motortruck, steamboat, vessel, aircraft or other vehicle of such carrier moving in interstate commerce, embezzles, steals, abstracts, or willfully misapplies, or willfully permits to be misapplied, any of the moneys, funds, credits, securities, property, or assets of such firm, association, or corporation arising or accruing from, or used in, such commerce, in whole or in part, or willfully or knowingly converts the same to his own use or to the use of another, shall be fined not more than $5,000 or imprisoned not more than ten years, or both.' 18 U.S.C. § 660 (1964 ed.).
2
See n. 1, supra.
3
'Every president, director, officer, or manager of any firm, association, or corporation engaged in commerce as a common carrier, who embezzles, steals, abstracts, or willfully misapplies, or willfully permits to be misapplied, any of the moneys, funds, credits, securities, property, or assets of such firm, association, or corporation arising or accruing from, or used in, such commerce, in whole or in part, or willfully or knowingly converts the same to his own use or to the use of another, shall be deemed guilty of a felony and upon conviction shall be fined not less than $500, or confined in the penitentiary not less than one year nor more than ten years, or both, in the discretion of the court.' Act of Oct. 15, 1914, § 9, 38 Stat. 733, 18 U.S.C. § 412 (1946 ed.).
4
'(a) Whoever shall——
* * *
'(5) being in employee of any carrier riding in, on or upon any railroad car, motortruck, steamboat, vessel, aircraft, or other vehicle of such carrier transporting passengers or property in interstate or foreign commerce and having in his custody funds arising out of or accruing from such transportation, embezzle or unlawfully convert to his own use any such funds; shall in each case be fined not more than $5,000 or imprisoned not more than ten years, or both.' Act of Feb. 13, 1913, 37 Stat. 670, as amended, 18 U.S.C. § 409(a)(5) (1946 ed.).
5
Some sources define 'firm' as '[t]he persons composing a partnership, taken collectively.' II Bouvier's Law Dictionary 1232 (1914); see also Ballentine's Law Dictionary 507 (2d ed. 1948); Black's Law Dictionary 761-762 (4th ed. 1951); Crowell's Dictionary of Business and Finance 225 (rev. ed. 1930); Encyclopedia of Banking and Finance 238 (Garcia, 5th ed. 1949). But other dictionaries, while recognizing that narrow definition, also state that the word has a broader meaning in popular usage, connoting any business entity, including individual proprietorships. For example, the standard American reference defines 'firm' both as 'a partnership of two or more persons not recognized as a legal person distinct from the members composing it' and as any 'business unit or enterprise.' Webster's Third New International Dictionary—Unabridged 856 (1961). Accord, Clark & Gottfried, Dictionary of Business and Finance 152 (1957) ('Strictly, an unincorporated business carried on by more than one person, jointly; a partnership. * * * In popular usage, any business, company, or concern, incorporated or not.'); Dictionary of Business and Industry 218 (Schwartz ed. 1954) ('A business partnership; any business house or organization, no matter what its legal form * * *'); Dictionary of English Law 807 (1959) ('the style or title under which one or several persons carry on business'); Dictionary of Foreign Trade 308 (Henius, 2d ed. 1947) ('the name or title under which one or more persons do business').
While numerous decisions of state courts have enunciated a restrictive definition of 'firm'—and in turn have influenced the definition given in law dictionaries, see the citation to Firestone Tire & Rubber Co. v. Webb, 207 Ark. 820, 182 S.W.2d 941 (1944), in Black's Law Dictionary, supra—such decisions have not involved the issue of whether an individual proprietorship may be deemed a 'firm.' Typically the question has been whether two or more persons holding themselves out as a firm should be held to constitute a partnership for various purposes of partnership law such as liability on a partnership note, Firestone Tire & Rubber Co. v. Webb, supra, imputation of knowledge from partners to the partnership, McCosker v. Banks, 84 Md. 292, 35 A. 935 (1896), or liability of one partner for the acts of another, Bufton v. Hoseley, 236 Or. 12, 386 P.2d 471 (1963).
6
The two provisions are identical and read as follows:
'The term 'firm' includes an individual proprietorship, partnership, joint venture, association, corporation (including a development corporation), business trust, cooperative, trustees in bankruptcy, and receivers under decree of any court. * * *'
7
A random sampling of 1,500 of 11,700 ICC-certificated Class III motor carriers of property (i. e., those with an annual revenue of less than $200,000) showed that at the end of 1964 almost 40% were individually owned and operated. About 1% operated in partnership form, and the remainder operated as corporations. Brief of United States 13, n. 8.
| 01
|
384 U.S. 269
86 S.Ct. 1477
16 L.Ed.2d 526
Tommy N. GREERv.George BETO, Director, Texas Department of Corrections.
No. 720, Misc.
Supreme Court of the United States
May 23, 1966
William E. Gray, for petitioner.
Waggoner Carr, Atty. Gen. of Texas, Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., and Howard M. Fender, Asst. Atty. Gen., for respondent.
On Petition for Writ of Certiorari to the Court of Criminal Appeals of Texas.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is reversed. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650; see Garner v. Pennsylvania, 372 U.S. 768, 83 S.Ct. 1105, 10 L.Ed.2d 138; United States ex rel. Durocher v. LaVallee, 330 F.2d 303 (C.A.2d Cir.).
2
Mr. Justice HARLAN would set the case for argument, believing that the retroactivity of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, as applied in a recidivist case, presents problems of its own that are deserving of plenary consideration.
| 01
|
384 U.S. 264
86 S.Ct. 1415
16 L.Ed.2d 521
William Hoyet REDMOND and Dorothy Lucille Redmondv.UNITED STATES.
No. 1056.
May 23, 1966.
John Jay Hooker, Jr., for petitioners.
Solicitor General Marshall, for the United States.
PER CURIAM.
1
The petition for certiorari is granted. The Court of Appeals for the Sixth Circuit affirmed the conviction of petitioners, husband and wife, under an information charging them with violating the federal obscenity statute, 18 U.S.C. § 1461 (1964 ed.), by having mailed undeveloped films of each other posing in the nude to an out-of-state firm for developing, and having received through the mails the developed negatives and a print of each.
2
In response to the certiorari petition, the Solicitor General has filed a motion requesting that the judgment of the Court of Appeals for the Sixth Circuit be vacated and the cause remanded to the District Court with directions to dismiss the information. The ground of the motion is that 'the initiation of the instant prosecution was not in accord with policies which had previously been formulated within the Department (of Justice) for the guidance of United States Attorneys.' The policies referred to are set forth in a memorandum to United States Attorneys, dated August 31, 1964. The memorandum states, in pertinent part, that prosecution for mailing private correspondence which is allegedly obscene 'should be the exception confined to those cases involving repeated offenders or other circumstances which may fairly be characterized as aggravated.' The Solicitor General states that there are no such exceptional circumstances warranting a prosecution of petitioners: 'They were not repeated offenders. They had no record of involvement with obscene materials or sex-related offenses and no apparent opportunity for close association with young people. No other aggravating circumstance appears to be present.'
3
In consideration of the premises and upon an independent examination of the record filed in this Court, the motion is granted. The judgment of the Court of Appeals is accordingly vacated, the cause is remanded to the District Court, and that court is directed to dismiss the information. See Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490. It is so ordered.
4
Judgment of Court of Appeals vacated and cause remanded.
5
Mr. Justice STEWART, with whom Mr. Justice BLACK and Mr. Justice DOUGLAS concur, would reverse this conviction, not because it violates the policy of the Justice Department, but because it violates the Constitution.
| 23
|
384 U.S. 270
86 S.Ct. 1478
16 L.Ed.2d 555
UNITED STATES, Appellant,v.VON'S GROCERY COMPANY et al.
No. 303.
Argued March 22, 1966.
Decided May 31, 1966.
Richard A. Posner, Washington, D.C., for appellant.
William W. Alsup, Los Angeles, Cal., for appellees.
Henry J. Bison, Jr., Washington, D.C., for National Ass'n of Retail Grocers of United States, as amicus curiae.
Mr. Justice BLACK delivered the opinion of the Court.
1
On March 25, 1960, the United States brought this action charging that the acquisition by Von's Grocery Company of its direct competitor Shopping Bag Food Stores, both large retail grocery companies in Los Angeles, California, violated § 7 of the Clayton Act which, as amended in 1950 by the Celler-Kefauver Anti-Merger Act, provides in relevant part:
2
'That no corporation engaged in commerce * * * 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.'1
3
On March 28, 1960, three days later, the District Court refused to grant the Government's motion for a temporary restraining order and immediately Von's took over all of Shopping Bag's capital stock and assets including 36 grocery stores in the Los Angeles area. After hearing evidence on both sides, the District Court made findings of fact and concluded as a matter of law that there was 'not a reasonable probability' that the merger would tend 'substantially to lessen competition' or 'create a monopoly' in violation of § 7. For this reason the District Court entered judgment for the defendants. 233 F.Supp. 976, 985. The Government appealed directly to this Court as authorized by § 2 of the Expediting Act.2 The sole question here is whether the District Court properly concluded on the facts before it that the Government had failed to prove a violation of § 7.
4
The record shows the following facts relevant to our decision. The market involved here is the retail grocery market in the Los Angeles area. In 1958 Von's retail sales ranked third in the area and Shopping Bag's ranked sixth. In 1960 their sales together were 7.5% of the total two and one-half billion dollars of retail groceries sold in the Los Angeles market each year. For many years before the merger both companies had enjoyed great success as rapidly growing companies. From 1948 to 1958 the number of Von's stores in the Los Angeles area practically doubled from 14 to 27, while at the same time the number of Shopping Bag's stores jumped from 15 to 34. During that same decade, Von's sales increased fourfold and its share of the market almost doubled while Shopping Bag's sales multiplied seven times and its share of the market tripled. The merger of these two highly successful, expanding and aggressive competitors created the second largest grocery chain in Los Angeles with sales of almost $172,488,000 annually. In addition the findings of the District Court show that the number of owners operating single stores in the Los Angeles retail grocery market decreased from 5,365 in 1950 to 3,818 in 1961. By 1963, three years after the merger, the number of single-store owners had dropped still further to 3,590.3 During roughly the same period, from 1953 to 1962, the number of chains with two or more grocery stores increased from 96 to 150. While the grocery business was being concentrated into the hands of fewer and fewer owners, the small companies were continually being absorbed by the larger firms through mergers. According to an exhibit prepared by one of the Government's expert witnesses, in the period from 1949 to 1958 nine of the top 20 chains acquired 126 stores from their smaller competitors.4 Figures of a principal defense witness, set out below, illustrate the many acquisitions and mergers in the Los Angeles grocery industry from 1954 through 1961 including acquisitions made by Food Giant, Alpha Beta, Fox, and Mayfair, all among the 10 leading chains in the area.5 Moreover, a table prepared by the Federal Trade Commission appearing in the Government's reply brief, but not a part of the record here, shows that acquisitions and mergers in the Los Angeles retail grocery market have continued at a rapid rate since the merger.6 These facts alone are enough to cause us to conclude contrary to the District Court that the Von's-Shopping Bag merger did violate § 7. Accordingly, we reverse.
5
From this country's beginning there has been an abiding and widespread fear of the evils which flow from monopoly—that is the concentration of economic power in the hands of a few. On the basis of this fear, Congress in 1890, when many of the Nation's industries were already concentrated into what it deemed too few hands, passed the Sherman Act in an attempt to prevent further concentration and to preserve competition among a large number of sellers. Several years later, in 1897, this Court emphasized this policy of the Sherman Act by calling attention to the tendency of powerful business combinations to restrain competition 'by driving out of business the small dealers and worthy men whose lives have been spent therein, and who might be unable to readjust themselves to their altered surroundings.' United States v. Trans-Missouri Freight Ass'n., 166 U.S. 290, 323, 17 S.Ct. 540, 552, 41 L.Ed. 1007.7 The Sherman Act failed to protect the smaller businessmen from elimination through the monopolistic pressures of large combinations which used mergers to grow ever more powerful. As a result in 1914 Congress, viewing mergers as a continuous, pervasive threat to small business, passed § 7 of the Clayton Act which prohibited corporations under most circumstances from merging by purchasing the stock of their competitors. Ingenious businessmen, however, soon found a way to avoid § 7 and corporations began to merge simply by purchasing their rivals' assets. This Court in 1926, over the dissent of Justice Brandeis, joined by Chief Justice Taft and Justices Holmes and Stone approved this device for avoiding § 78 and mergers continued to concentrate economic power into fewer and fewer hands until 1950 when Congress passed the Celler-Kefauver Anti-Merger Act now before us.
6
Like the Sherman Act in 1890 and the Clayton Act in 1914, the basic purpose of the 1950 Celler-Kefauver Act was to prevent economic concentration in the American economy by keeping a large number of small competitors in business.9 In stating the purposes of their bill, both of its sponsors, Representative Celler and Senator Kefauver, emphasized their fear, widely shared by other members of Congress, that this concentration was rapidly driving the small businessman out of the market.10 The period from 1940 to 1947, which was at the center of attention throughout the hearings and debates on the Celler-Kefauver bill, had been characterized by a series of mergers between large corporations and their smaller competitors resulting in the steady erosion of the small independent business in our economy.11 As we said in Brown Shoe Co. v. United States, 370 U.S. 294, 315, 82 S.Ct. 1502, 1518, 8 L.Ed.2d 510, 'The dominant theme pervading congressional consideration of the 1950 amendments was a fear of what was considered to be a rising tide of economic concentration in the American economy.' To arrest this 'rising tide' toward concentration into too few hands and to halt the gradual demise of the small businessman, Congress decided to clamp down with vigor on mergers. It both revitalized § 7 of the Clayton Act by 'plugging its loophole' and broadened its scope so as not only to prohibit mergers between competitors, the effect of which 'may be substantially to lessen competition, or to tend to create a monopoly' but to prohibit all mergers having that effect. By using these terms in § 7 which look not merely to the actual present effect of a merger but instead to its effect upon future competition, Congress sought to preserve competition among many small businesses by arresting a trend toward concentration in its incipiency before that trend developed to the point that a market was left in the grip of a few big companies. Thus, where concentration is gaining momentum in a market, we must be alert to carry out Congress' intent to protect competition against everincreasing concentration through mergers.12
7
The facts of this case present exactly the threatening trend toward concentration which Congress wanted to halt. The number of small grocery companies in the Los Angeles retail grocery market had been declining rapidly before the merger and continued to decline rapidly afterwards. This rapid decline in the number of grocery store owners moved hand in hand with a large number of significant absorptions of the small companies by the larger ones. In the midst of this steadfast trend toward concentration, Von's and Shopping Bag, two of the most successful and largest companies in the area, jointly owning 66 grocery stores merged to become the second largest chain in Los Angeles. This merger cannot be defended on the ground that one of the companies was about to fail or that the two had to merge to save themselves from destruction by some larger and more powerful competitor.13 What we have on the contrary is simply the case of two already powerful companies merging in a way which makes them even more powerful than they were before. If ever such a merger would not violate § 7, certainly it does when it takes place in a market characterized by a long and continuous trend toward fewer and fewer owner-competitors which is exactly the sort of trend which Congress, with power to do so, declared must be arrested.
8
Appellees' primary argument is that the merger between Von's and Shopping Bag is not prohibited by § 7 because the Los Angeles grocery market was competitive before the merger, has been since, and may continue to be in the future. Even so, § 7 'requires not merely an appraisal of the immediate impact of the merger upon competition, but a prediction of its impact upon competitive conditions in the future; this is what is meant when it is said that the amended § 7 was intended to arrest anti-competitive tendencies in their 'incipiency." United States v. Philadelphia Nat. Bank, 374 U.S. 321, 362, 83 S.Ct. 1715, 1741. It is enought for us that Congress feared that a market marked at the same time by both a continuous decline in the number of small businesses and a large number of mergers would slowly but inevitably gravitate from a market of many small competitors to one dominated by one or a few giants, and competition would thereby be destroyed. Congress passed the Celler-Kefauver Act to prevent such a destruction of competition. Our cases since the passage of that Act have faithfully endeavored to enforce this congressional command.14 We adhere to them now.
9
Here again as in United States v. El Paso Gas Co., 376 U.S. 651, 662, 84 S.Ct. 1044, 1050, 12 L.Ed.2d 12, since appellees 'have been on notice of the antitrust charge from almost the beginning * * * we not only reverse the judgment below but direct the District Court to order divestiture without delay.' See also United States v. E. I. du Pont De Nemours & Co., 366 U.S. 316, 81 S.Ct. 1243, 6 L.Ed.2d 318; United States v. Alcoa, 377 U.S. 271, 281, 84 S.Ct. 1283, 1289.
10
Reversed and remanded.
11
Mr. Justice FORTAS took no part in the consideration or decision of this case.
APPENDIX TO OPINION OF THE COURT.
12
Table 1.
13
Food store acquisitions in the Los Angeles metropolitan area 1954-61
Number
14
Year Acquiring firm Acquired firm of stores
15
acquired
16
1957......Piper Mart..........Bi-Right & Big Bear.3
17
1958......Mayfair.............Bob's Supermarket.7
18
1961......Better Foods........Border's Markets.3
19
1954......Kory's Markets......Carty Brothers .8
1958......Food Giant..........Clark Markets.10
1956......Fox.................Desert Fair.4
1959......Lucky...............Hiram's....6
20
1958......Fox.................Iowa Pork Shops.11
21
1961......Food Giant (and others).McDaniels's Markets.16
22
1957......Food Giant..........Panorama Markets.3
1958......Pix.................Patton's Mkts.3
23
1958......Alpha Beta..........Raisin Markets.13
24
1960......Piggly Wiggly.......Rankins Markets.4
1959......Pix.................S & K Markets.2
1960......Vons's..............Shopping Bag.37
25
1959......Pix.................Shop Right Markets.3
1958......Yor-Way.............C. S. Smith.5
1957......Food Giant..........Toluca Marts.2
26
1957......Mayfair.............U-Tell-Em Markets.10
27
..........Total ..............150
Table 2.
28
Food store acquisitions in the Los Angeles metropolitan area 1961-64
1
Acquired company (or stores)
Type of
29
acquisition
Year Acquiring company
Name Number of Sales Horizontal Others
Stores(thousands)2
30
1961 Acme Markets.Alpha Beta Food Markets 45 $79.042 --- X
31
Boys Markets.......Korys Markets.5.10,000.X
32
Food Giant Markets.McDaniels Markets.9.21,500 X*
33
Mayfair Markets....Yorway Markets.1.1,500.X
Alpha Beta Food Markets........1.1,700.X
34
1962 Mayfair Markets.Schaubs Market.1.1,800 X
Fox Markets........1.......2,200.X
35
Ralph's Grocery Co..Imperial Supreme Markets 1 916 X
36
1963 Food Fair Stores.Fox Markets.22.44,419 --- X
37
KrogerMarket Basket...........53.110,860.--- X
38
Mayfair Markets....Bi Rite Markets.1.2,569 X
Dales Food Market..1.......2,200.X
Food Giant Markets.1.......1,700.X
39
1964 Albertson's, Inc..Greater All American 14 30,308 --- X
40
Mayfair Markets....Gateway Market.4.8,000.X
Pattons Markets....4......10,400.X
41
Ralph's Grocery Co..Cracker Barrel Supermarket. 1 1,000 X
42
Food Giant Markets.McDaniels Markets.7.18,350 X
43
Total horizontal...------------------------ 38 83,835 ---
44
mergers.
45
Total market.......------------------------ 134 264,629 ---
46
extension mergers.
1
Consists of Los Angeles and Orange Counties. (1963 census defined the Los Angeles metropolitan area as Los Angeles County only.)
2
In most cases, sales are for the 12-month period prior to acquisition. as a 7.5% share of the relevant market. But here, in 1958 before the merger, the largest firm had 8% of the sales, Von's was third with 4.7% and Shopping Bag was sixth with 4.2%. The four largest firms had 24.4% of the market, the top eight had 40.9% and the top 12 had 48.8% as compared with 25.9%, 33.7% and 38.8% in 1948. All but two of the top 10 firms in 1958 were very probably also among the top 10 in 1948 or had acquired a firm that was among the top 10. Further, all but three of the top 10 had increased their market share between 1948 and 1958 and those which gained gained more than the three lost. Also, although three companies declined in market share their total sales increased in substantial amounts.
47
Given a trend towards fewer and fewer sellers which promises to continue, it is clear to me that where the eight leading firms have over 40% of the market, any merger between the leaders or between one of them and a lesser company is vulnerable under § 7, absent some special proof to the contrary. Here Von's acquired Shopping Bag. Both were among the eight largest companies, both had grown substantially since 1948 and they were substantial competitors. After the merger the four largest firms had 28.8%, the eight largest had 44% and the 12 largest had 50%. The merger not only disposed of a substantial competitor but increased the concentration in the leading firms. In my view the Government sufficiently proved that the effect of this merger may be substantially to lessen competition or to tend to create a monopoly.
48
Mr. Justice STEWART, with whom Mr. Justice HARLAN joins, dissenting.
49
We first gave consideration to the 1950 amendment of § 7 of the Clayton Act in Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510. The thorough opinion The Chief Justice wrote for the Court in that case made two things plain: First, the standards of § 7 require that every corporate acquisition be judged in the light of the contemporary economic context of its industry.1 Second, the purpose of § 7 is to protect competition, not to protect competitors, and every § 7 case must be decided in the light of that clear statutory purpose.2 Today the Court turns its back on these two basis principles and on all the decisions that have followed them.
50
The Court makes no effort to appraise the competitive effects of this acquisition in terms of the contemporary economy of the retail food industry in the Los Angeles area.3 Instead, through a simple exercise in sums, it finds that the number of individual competitors in the market has decreased over the years, and, apparently on the theory that the degree of competition is invariably proportional to the number of competitors, it holds that this historic reduction in the number of competing units is enough under § 7 to invalidate a merger within the market, with no need to examine the economic concentration of the market, the level of competition in the market, or the potential adverse effect of the merger on that competition. This startling per se rule is contrary not only to our previous decisions, but contrary to the language of § 7, contrary to the legislative history of the 1950 amendment, and contrary to economic reality.
51
Under § 7, as amended, a merger can be invalidated if, any only if, 'the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.' No question is raised here as to the tendency of the present merger to create a monopoly. Our sole concern is with the question whether the effect of the merger may be substantially to lessen competition.
52
The principal danger against which the 1950 amendment was addressed was the erosion of competition through the cumulative centripetal effect of acquisitions by large corporations, none of which by itself might be sufficient to constitute a violation of the Sherman Act. Congress' immediate fear was that of large corporations buying out small companies.4 A major aspect of that fear was the perceived trend toward absentee ownership of local business.5 Another, more generalized, congressional purpose revealed by the legislative history was to protect small businessmen and to stem the rising tide of concentration in the economy.6 These goals, Congress thought, could be achieved by 'arresting mergers at a time when the trend to a lessening of competition in a line of commerce was still in its incipiency.' Brown Shoe Co. v. United States, supra, at 317, 82 S.Ct., at 1520.
53
The concept of arresting restraints of trade in their 'incipiency' was not an innovation of the 1950 amendment. The notion of incipiency was part of the report on the original Clayton Act by the Senate Committee in the Judiciary in 1914, and it was reiterated in the Senate report in 1950.7 That notion was not left undefined. The legislative history leaves no doubt that the applicable standard for measuring the substantiality of the effect of a merger on competition was that of a 'reasonable probability' of lessening competition.8 The standard was thus more stringent than that of a 'mere possibility' on the one hand and more lenient than that of a 'certainty' on the other.9 I cannot agree that the retail grocery business in Los Angeles is in an incipient or any other stage of a trend toward a lessening of competition, or that the effective level of concentration in the industry has increased. Moreover, there is no indication that the present merger, or the trend in this industry as a whole, augurs any danger whatsoever for the small businessman. The Court has substituted bare conjecture for the statutory standard of a reasonable probability that competition may be lessened.10
54
The Court rests its conclusion on the 'crucial point' that, in the 11-year period between 1950 and 1961, the number of single-store grocery firms in Los Angeles decreased 29% from 5,365 to 3,818.11 Such a decline should, of course, be no more than a fact calling for further investigation of the competitive trend in the industry. For the Court, however, that decline is made the end, not the beginning, of the analysis. In the counting-of-headsgame played today by the Court, the reduction in the number of single-store operators becomes a yard-stick for automatic disposition of cases under § 7.
55
I believe that even the most superficial analysis of the record makes plain the fallacy of the Court's syllogism that competition is necessarily reduced when the bare number of competitors has declined.12 In any meaningful sense, the structure of the Los Angeles grocery market remains unthreatened by concentration. Local competition is vigorous to a fault, not only among chain stores themselves but also between chain stores and single-store operators. The continuing population explosion of the Los Angeles area, which has outrun the expansion plans of even the largest chains, offers a surfeit of business opportunity for stores of all sizes.13 Affiliated with cooperatives that give the smallest store the buying strength of its largest competitor, new stores have taken full advantage of the remarkable ease of entry into the market. And, most important of all, the record simply cries out that the numerical decline in the number of single-store owners is the result of transcending social and technological changes that positively preclude the inference that competition has suffered because of the attrition of competitors.
56
Section 7 was never intended by Congress for use by the Court as a charter to roll back the supermarket revolution. Yet the Court's opinion is hardly more than a requiem for the so-called 'Mom and Pop' grocery stores—the bakery and butcher shops, the vegetable and fish markets—that are now economically and technologically obsolete in many parts of the country. No action by this Court can resurrect the old single-line Los Angeles food stores that have been run over by the automobile or obliterated by the freeway. The transformation of American society since the Second World War has not completely shelved these specialty stores, but it has relegated them to a much less central role in our food economy. Today's dominant enterprise in food retailing is the supermarket. Accessible to the housewife's automobile from a wide radius, it houses under a single roof the entire food requirements of the family. Only through the sort of reactionary philosophy that this Court long ago rejected in the Due Process Clause area can the Court read into the legislative history of § 7 its attempt to make the automobile stand still, to mold the food economy of today into the market pattern of another era.14
57
This is not a case in which the record is equivocal with regard to the status of competition in the industry in question. To the contrary, the record offers abundant evidence of the dramatic history of growth and prosperity of the retail food business in Los Angeles.
58
The District Court's finding of fact that there was no increase in market concentration before or after the merger is amply supported by the evidence if concentration is gauged by any measure other than that of a census of the number of competing units. Between 1948 and 1958, the market share of Safeway, the leading grocery chain in Los Angeles, declined from 14% to 8%. The combined market shares of the top two chains declined from 21% to 14% over the same period; for the period 1952—1958, the combined shares of the three, four, and five largest firms also declined. It is true that between 1948 and 1958, the combined shares of the top 20 firms in the market increased from 44% to 57%. The crucial fact here, however, is that seven of these top 20 firms in 1958 were not even in existence as chains in 1948. Because of the substantial turnover in the membership of the top 20 firms, the increase in market share of the top 20 as a group is hardly a reliable indicator of any tendency toward market concentration.15
59
In addition, statistics in the record for the period 1953 1962 strongly suggest that the retail grocery industry in Los Angeles is less concentrated today than it was a decade ago. During this period, the number of chain store firms in the area rose from 96 to 150, or 56%. That increase occurred overwhelmingly among chains of the very smallest size, those composed of two or three grocery stores. Between 1953 and 1962, the number of such 'chains' increased from 56 to 104, or 86%. Although chains of 10 or more stores increased from 10 to 24 during the period, seven of these 24 chains were not even in existence as chains in Los Angeles in 1953.16
60
Yet even these dramatic statistics do not fully reveal the dynamism and vitality of competition in the retail grocery business in Los Angeles during the period. The record shows that at various times during the period 1953—1962, no less than 269 separate chains were doing business in Los Angeles, of which 208 were two- or three-store chains. During that period, therefore, 173 new chains made their appearance in the market area, and 119 chains went out of existence as chain stores.17 The vast majority of this market turbulence represented turnover in chains of two or three stores; 143 of the 173 new chains born during the period were chains of this size. Testimony in the record shows that, almost without exception, these new chains were the outgrowth of successful one-store operations.18 There is no indication that comparable turmoil did not equally permeate single-store operations in the area.19 In fashioning its per se rule, based on the net arithmetical decline in the number of single-store operators, the Court completely disregards the obvious procreative vigor of competition in the market as reflected in the turbulent history of entry and exit of competing small chains.
61
To support its conclusion the Court invokes three sets of data regarding absorption of smaller firms by merger with larger firms. In each of the acquisitions detailed in the Appendix, Tables 1 and 2 of the Court's opinion, the acquired units were grocery chains. Not one of these acquisitions was of a firm operating only a single store.20 The Court cannot have it both ways. It is only among single-store operators that the decline in the unit number of competitors, so heavily relied upon by the Court, has taken place. Yet the tables reproduced in the Appendix show not a trace of merger activity involving the acquisition of single-store operators. And the number of chains in the area has in fact shown a substantial net increase during the period, in spite of the fact that some of the chains have been absorbed by larger firms. How then can the Court rely on these acquisitions as evidence of a tendency toward market concentration in the area?
62
The Court's use of market-acquisition data for the period 1954—1961,21 prepared by the Government from the work sheets of a defense witness, is also questionable for another reason. During that period, Food Giant, Alpha Beta, Fox, and Mayfair were ranked 7th, 8th, 9th, and 10th, respectively, on the basis of the percentage of their sales in Los Angeles in 1958, so that the impact of their acquisitions, made in the face of competition by the top six chains, is considerably blunted. The remarkable feature disclosed by these data is that none of the top six firms in the area expanded by acquisition during the period.22
63
The Court's reliance on the fact that nine of the top 20 chains acquired 120 stores in the Los Angeles area between 1949 and 1958 does not withstand analysis in light of the complete record. Forty percent of these acquisitions, representing 48 stores with gross sales of more than $71,000,000, were made by Fox, Yor-Way, and McDaniels, which ranked 9th, 11th, and 20th, respectively, according to 1958 sales in the market. Each of these firms subsequently went into bankruptcy as a result of overexpansion, under-capitalization, or inadequate managerial experience. This substantial post-acquisition demise of relatively large chains hardly comports with the Court's tacit portrayal of the inexorable march of the market toward oligopoly.
64
Further, the table relied on by the Court to sustain its view that acquisitions have continued in the Los Angeles area at a rapid rate in the three-year period following this merger indiscriminately lumps together horizontal and market-extension mergers.23 Only 29 stores, representing 13 acquisitions, were acquired in horizontal mergers, and the record reveals than nine of these 29 stores were acquired in the course of dispositions in bankruptcy. Such acquisitions of failing companies, of course, are immune from the Clayton Act. International Shoe Co. v. Federal Trade Commission, 280 U.S. 291, 301—303, 50 S.Ct. 89, 92—93, 74 L.Ed. 431. Thus, at a time when the number of single-store concerns was well over 3,500, horizontal mergers over a three-year period between going concerns achieved at most only the de minimis level of 10 acquisitions involving 20 stores. It cannot seriously be maintained that the effect of the negligible market share foreclosed by these horizontal mergers may be substantially to lessen competition within the meaning of § 7. Cf. Brown Shoe Co. v. United States, 370 U.S. 294, 329, 82 S.Ct. 1502, 1526, 8 L.Ed.2d 510.
65
The great majority of the post-merger acquisitions detailed in Table 2 in the Appendix of the Court's opinion, ante, were of the market-extension type, involving neither the elimination of direct competitors in the Los Angeles market nor increased concentration of the market. There are substantial economic distinctions between such market-extension mergers and classical horizontal mergers.24 Whatever the wisdom or logic of the Court's assumed arithmetic proportion between the number of single-store concerns and the level of competition within the meaning of § 7 as applied to horizontal mergers, it is simply not possible to make the further assumption that the mere occurrence of market-extension mergers is adequate to prove a tendency of the local market toward decreased competition.
66
Moreover, contrary to the assumption on which the Court proceeds, the record establishes that the present merger itself has substantial, even predominant, market-extension overtones. The District Court found that the Von's stores were located in the southern and western portions of the Los Angeles metropolitan area, and that the Shopping Bag stores were located in the northern and eastern portions. In each of the areas in which Von's and Shopping Bag stores competed directly, there were also at least six other chain stores and several smaller stores competing for the patronage of customers. On the basis of a 'housewife's 10-minute driving time' test conducted for the Justice Department by a government witness, it was shown that slightly more than half of the Von's and Shopping Bag stores were not in a position to compete at all with one another in the market.25 Even among those stores which competed at least partially with one another, the overlap in sales represented only approximately 25% of the combined sales of the two chains in the overall Los Angeles area. The present merger was thus three parts market-extension and only one part horizontal, but the Court nowhere recognizes this market-extension aspect that exists within the local market itself. The actual market share foreclosed by the elimination of Shopping Bag as an independent competitor was thus slightly less than 1% of the total grocery store sales in the area. The share of the market preempted by the present merger was therefore practically identical with the 0.77% market foreclosure accepted as 'quite insubstantial' by the Court in Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 331—333, 81 S.Ct. 623, 630—631, 5 L.Ed.2d 580.
67
The irony of this case is that the Court invokes its sweeping new construction of § 7 to the detriment of a merger between two relatively successful, local, largely family-owned concerns, each of which had less than 5% of the local market and neither of which had any prior history of growth by acquisition.26 In a sense, the defendants are being punished for the sin of aggressive competition.27 The Court is inaccurate in its suggestions, ante, pp. 277-278, that the merger makes these firms more 'powerful' than they were before, and that Shopping Bag was itself a 'powerful' competitor at the time of the merger. There is simply no evidence in the record, and the Court makes no attempt to demonstrate, that the increment in market share obtained by the combined stores can be equated with an increase in the market power of the combined firm. And, although Shopping Bag was not a 'failing company' within the meaning of our decision in International Shoe Co. v. Federal Trade Commission, 280 U.S. 291, 301—303, 50 S.Ct. 89, 92—93, the record at least casts strong doubt on the contention that it was a powerful competitor.28 The District Court found that Shopping Bag suffered from a lack of qualified executive personnel29 and that, although overall sales of the chain had been increasing, its earnings and profits were declining.30 Further, the merger clearly comported with 'the desirability of retaining 'local control' over industry' that the Court noted in Brown Shoe Co. v. United States, 370 U.S. 294, 315—316, 82 S.Ct. 1502, 1518—1519.
68
With regard to the 'plight' of the small businessman, the record is unequivocal that his competitive position is strong and secure in the Los Angeles retail grocery industry. The most aggressive competitors against the larger retail chains are frequently the operators of single stores.31 The vitality of these independents is directly attributable to the recent and spectacular growth in California of three large cooperative buying organizations. Membership in these groups is unrestricted; through them, single-store operators are able to purchase their goods at prices competitive with those offered by suppliers even to the largest chains.32 The rise of these cooperative organizations has introduced a significant new source of countervailing power against the market power of the chain stores, without in any way sacrificing the advantages of independent operation. In the face of the substantial assistance available to independents through membership in such cooperatives, the Court's implicit equation between the market power and the market share resulting from the present merger seems completely invalid.
69
Moreover, it is clear that there are no substantial barriers to market entry. The record contains references to numerous highly successful instances of entry with modest initial investments. Many of the stores opened by new entrants were obtained through the disposition of unwanted outlets by chains; frequently the new competitors were themselves chainstore executives who had resigned to enter the market on their own. Enhancing free access to the market is the absence of any such restrictive factors as patented technology, trade secrets, or substantial product differentiation.
70
Numerous other factors attest to the pugnacious level of grocery competition in Los Angeles, all of them silently ignored by the Court in its emphasis solely on the declining number of single-store competitors in the market. Three thousand five hundred and ninety single-store firms is a lot of grocery stores. The large number of separate competitors and the frequent price battles between them belie any suggestion that price competition in the area is even remotely threatened by a descent to the sort of consciously interdependent pricing that is characteristic of a market turning the corner toward oligopoly. The birth of dynamic new competitive forces—discount food houses and food departments in department stores, bantams and superettes, deli-liquor stores and drive-in dairies—promises unremitting competition in the future. In the more than four years following the merger, the District Court found not a shred of evidence that competition had been in any way impaired by the merger. Industry witnesses testified overwhelmingly to the same effect. By any realistic criterion, retail food competition in Los Angeles is today more intense than ever.
71
The harsh standard now applied by the Court to horizontal mergers may prejudice irrevocably the already difficult choice faced by numerous successful small and medium-sized businessmen in the myriad smaller markets where the effect of today's decision will be felt, whether to expand by buying or by building additional facilities.33 And by foreclosing future sale as one attractive avenue of eventual market exit, the Court's decision may over the long run deter new market entry and tend to stifle the very competition it seeks to foster.
72
In a single sentence and an omnibus footnote at the close of its opinion, the Court pronounces its work consistent with the line of our decisions under § 7 since the passage of the 1950 amendment. The sole consistency that I can find is that in litigation under § 7, the Government always wins. The only precedent that is even within sight of today's holding is United States v. Philadelphia Nat. Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915. In that case, in the interest of practical judicial administration, the Court proposed a simplified test of merger illegality: '(W)e think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anticompetitive effects.' United States v. Philadelphia Nat. Bank, supra, at 363, 83 S.Ct., at 1741.34 The merger between Von's and Shopping Bag produced a firm with 1.4% of the grocery stores and 7.5% of grocery sales in Los Angeles, and resulted in an increase of 1.1% in the market share enjoyed by the two largest firms in the market and 3.3% in the market share of the six largest firms. The former two figures are hardly the 'undue percentage' of the market, nor are the latter two figures the 'significant increase' in concentration, that would make this merger inherently suspect under the standard of Philadelphia Nat. Bank. Instead, the circumstances of the present merger fall far outside the simplified test established by that case for precisely the sort of merger here involved.35
73
The tests of illegality under § 7 were 'intended to be similar to those which the courts have applied in interpreting the same language as used in other sections of the Clayton Act.' H.R.Rep. No. 1191, 81st Cong., 1st Sess., p. 8. In Philadelphia Nat. Bank, the Court was at pains to demonstrate that its conclusion was consistent with cases under § 3 of the Clayton Act. See United States v. Philadelphia Nat. Bank, 374 U.S. 321, 365 366, 83 S.Ct. 1715, 1742—1743, 10 L.Ed.2d 915. The Court disdains any such effort today. Untroubled by the language of § 7, its legislative history, and the cases construing either that section or any other provision of the antitrust laws, the Court grounds its conclusion solely on the impressionistic assertion that the Los Angeles retail food industry is becoming 'concentrated' because the number of single-store concerns has declined.
74
The emotional impact of a merger between the third and sixth largest competitors in a given market, however fragmented, is understandable, but that impact cannot substitute for the analysis of the effect of the merger on competition that Congress required by the 1950 amendment. Nothing in the present record indicates that there is more than an ephemeral possibility that the effect of this merger may be substantially to lessen competition. Section 7 clearly takes 'reasonable probability' as its standard. That standard has not been met here, and I would therefore affirm the judgment of the District Court.
1
38 Stat. 731, as amended by 64 Stat. 1125, 15 U.S.C. § 18 (1964 ed.).
2
32 Stat. 823, as amended by 62 Stat. 989, 15 U.S.C. § 29 (1964 ed.).
3
Despite this steadfast concentration of the Los Angeles grocery business into fewer and fewer hands, the District Court, in Finding of Fact No. 80, concluded as follows:
'There has been no increase in concentration in the retail grocery business in the Los Angeles Metropolitan Area either in the last decade or since the merger. On the contrary, economic concentration has decreased * * *.'
This conclusion is completely contradicted by Finding No. 23 which makes plain the steady decline in the number of individual grocery store owners referred to above. It is thus appearent that the District Court, in finding No. 80, used the term 'concentration' in some sense other than a total decrease in the number of separate competitors which is the crucial point here.
4
Appellees, in their brief, claim that 120 and not 126 stores changed hands in these acquisitions:
'It should also be noted here that the exhibit is in error in showing an acquisition by Food Giant from itself of six stores doing an annual volume of $31,700,000. Actually this was simply a change of name by Food Giant * * *.'
5
These figures as they appear in a table in the Brief for the United States show acquisitions of retail grocery stores in the Los Angeles area from 1954 to 1961: See Appendix, Table 1, substantially reproducing the above-mentioned table.
6
See Appendix, Table 2.
7
Later, in 1945, Judge Learned Hand, reviewing the policy of the antitrust laws and other laws designed to foster small business, said, 'Throughout the history of these statutes it has been constantly assumed that one of their purposes was to perpetuate and preserve, for its own sake and in spite of possible cost, an organization of industry in small units which can effectively compete with each other.' United States v. Aluminum Co. of America, 2 Cir., 148 F.2d 416, 429.
8
Thatcher Manufacturing Co. v. Federal Trade Commission, 272 U.S. 554, 560, 47 S.Ct. 175, 178, 71 L.Ed. 405.
9
See, e.g., United States v. Philadelphia Nat. Bank, 374 U.S. 321, 362—363, 83 S.Ct. 1715, 1740—1741, 10 L.Ed.2d 915; United States v. Alcoa, 377 U.S. 271, 280, 84 S.Ct. 1283, 1289, 12 L.Ed.2d 314.
10
Representative Celler, in introducing the bill on the House floor, remarked:
'Small, independent, decentralized business of the kind that built up our country, of the kind that made our country great, first, is fast disappearing, and second, is being made dependent upon monster concentration.' 95 Cong.Rec. 11486.
Senator Kefauver expressed the same fear on the Senate floor:
'I think that we are approaching a point where a fundamental decision must be made in regard to this problem of economic concentration. Shall we permit the economy of the country to gravitate into the hands of a few corporations * * *? Or on the other hand are we going to preserve small business, local operations, and free enterprise?' 96 Cong.Rec. 16450.
References to a number of other similar remarks by other Congressmen are collected in Brown Shoe Co. v. United States, 370 U.S. 294, 316, n. 28, 82 S.Ct. 1502, 1519, 8 L.Ed.2d 510.
11
H.R.Rep.No.1191, 81st Cong., 1st Sess., p. 3, U.S.Code Congressional Service, p. 4293, described this characteristic of the merger movement as follows:
'* * * the outstanding characteristic of the merger movement has been that of large corporations buying out small companies, rather than smaller companies combining together in order to compete more effectively with their larger rivals. More than 70 percent of the total number of firms acquired during 1940—47 have been absorbed by larger corporations with assets of over $5,000,000. In contrast, fully 93 percent of all the firms bought out held assets of less than $1,000,000. Some 33 of the Nation's 200 largest industrial corporations have bought out an average of 5 companies each, and 13 have purchased more than 10 concerns each.'
12
See, e.g., Brown Shoe Co. v. United States, 370 U.S., at 346, 82 S.Ct., at 1535; United States v. Philadelphia Nat. Bank, 374 U.S., at 362, 83 S.Ct., at 1740. See also 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, interpreting § 7 before the Celler-Kefauver Anti-Merger amendment.
13
See Brown Shoe Co. v. United States, 370 U.S., at 319, 82 S.Ct., at 1521.
14
See, e.g., Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502; United States v. Philadelphia Nat. Bank, 374 U.S. 321, 83 S.Ct. 1715; United States v. El Paso Gas Co., 376 U.S. 651, 84 S.Ct. 1044; United States v. Alcoa, 377 U.S. 271, 84 S.Ct. 1283; United States v. Continental Can Co., 378 U.S. 441, 84 S.Ct. 1738, 12 L.Ed.2d 953; FTC v. Consolidated Foods, 380 U.S. 592, 85 S.Ct. 1220, 14 L.Ed.2d 95.
*
According to a statement made by Von's counsel at oral argument, this acquisition did not take place in 1961, but instead Food Giant bought seven of McDaniel's stores in 1964. The acquisition in 1964 is listed in this table.
Mr. Justice WHITE, concurring.
As I read the Court's opinion, which I join, it does not hold that in any industry exhibiting a decided trend towards concentration, any merger between competing firms violates § 7 unless saved by the failing company doctrine; nor does it declare illegal each and every merger in such an industry where the resulting firm has as much
1
'(A) merger had to be functionally viewed, in the context of its particular industry.' Brown Shoe Co. v. United States, 370 U.S., at 321—322, 82 S.Ct., at 1522. '(B)oth the Federal Trade Commission and the courts have, in the light of Congress' expressed intent, recognized the relevance and importance of economic data that places any given merger under consideration within an industry framework almost inevitably unique in every case.' Id., at 322, n. 38, 82 S.Ct., at 1522.
2
'Taken as a whole, the legislative history illuminates congressional concern with protection of competition, not competitors, and its desire to restrain mergers only to the extent that such combinations may tend to lessen competition.' Brown Shoe Co. v. United States, supra, at 320, 82 S.Ct., at 1521.
3
This is the first case to reach the Court under the 1950 amendment to § 7 that involves a merger between firms engaged solely in retail food distribution. Kaysen & Turner, Antitrust Policy 40 (1959), have discussed this industry in the following terms:
'As a guess, we can say that the most important distributive trades, especially the food trades, are structurally unconcentrated in the metropolitan areas * * *. (T)he significance of structural oligopoly in terms of policy is far different in (these trades) than in manufacturing and mining. * * * (T)he traditional view that the local-market industries are essentially competitive in character is probably correct * * *.'
4
See, e.g., H.R.Rep. No. 1191, 81st Cong., 1st Sess., p. 3, quoted in footnote 11 of the Court's opinion. Mention of the retail food industry is notably absent in the legislative history. Although it is clear that, in addition to the already highly oligopolized industries, Congress who also concerned with trends toward concentration in industries that were still highly fragmented, this case involves not even a remote approach to the 'monster concentration' of which Representative Celler spoke in introducing the 1950 amendment in the House of Representatives. 95 Cong.Rec. 11486.
5
See, e.g., Hearing before Subcommittee No. 3 of the House Committee on the Judiciary on H.R. 2734, 81st Cong., 1st Sess., p. 12 (remarks of Senator Kefauver).
6
Much of the fuel for the congressional debates on concentration in the American economy was derived from a contemporary study by the Federal Trade Commission on corporate acquisitions between 1940 and 1947. See Report of the Federal Trade Commission on the Merger Movement: A Summary Report (1948). A critical study of the FTC report, published while the 1950 amendment was pending in Congress, concluded that the effect of the recent merger movement on concentration had been slight. Lintner & Butters, Effect of Mergers on Industrial Concentration, 1940—1947, 32 Rev. of Econ. & Statistics 30 (1950). Two economists for the Federal Trade Commission later acquiesced in that conclusion. Blair & Houghton, The Lintner-Butters Analysis of the Effect of Mergers on Industrial Concentration, 1940—1947, 33 Rev. of Econ. & Statistics 63, 67, n. 12 (1951).
7
See S.Rep. No. 698, 63d Cong., 2d Sess., p. 1:
'Broadly stated, the bill, in its treatment of unlawful restraints and monopolies seeks to prohibit and make unlawful certain trade practices which, as a rule, singly and in themselves, are not covered by the act of July 2, 1890 (the Sherman Act), or other existing antitrust acts, and thus, by making these practices illegal, to arrest the creation of trusts, conspiracies, and monopolies in their incipiency and before consummation.'
See also S.Rep. No. 1775, 81st Cong., 2d Sess., pp. 4—5: 'The intent here, as in other parts of the Clayton Act, is to cope with monopolistic tendencies in their incipiency and well before they have attained such effects as would justify a Sherman Act proceeding;' id., p. 6: 'The concept of reasonable probability conveyed by these words ('may be') is a necessary element in any statute which seeks to arrest restraints of trade in their incipiency and before they develop into full-fledged restraints violative of the Sherman Act.'
Thus, the Senate Reports on both the original Clayton Act and the 1950 amendment carefully delineate the 'incipiency' with which the provisions are concerned as that of monopolization or classical restraints of trade under the Sherman Act. The notion that 'incipiency' might be expanded to refer also to a lessening of competition first appeared in Brown Shoe Co. v. United States, 370 U.S. 294, 317, 82 S.Ct. 1502, 1519.
8
The Senate Report is clear on this point: 'The use of these words ('may be substantially to lessen competition') means that the bill, if enacted, would not apply to the mere possibility but only to the reasonable probability of the prescribed (sic) effect * * *. The words 'may be' have been in section 7 of the Clayton Act since 1914. The concept of reasonable probability conveyed by these words is a necessary element in any statute which seeks to arrest restraints of trade in their incipiency and before they develop into full-fledged restraints violative of the Sherman Act.' S.Rep. No. 1775, 81st Cong., 2d Sess., p. 6.
See also 96 Cong.Rec. 16453 (remarks of Senator Kefauver). Cf. 51 Cong.Rec. 14463—14464 (amendment of Senator Reed).
9
Although Congress eschewed exclusively mathematical tests for assessing the impact of a merger, it offered several generalizations indicative of the sort of merger that might be proscribed, e.g.: Whether the merger eliminated an enterprise that had been a substantial factor in competition; whether the increased size of the acquiring corporation threatened to give it a decisive advantage over competitors; whether an undue number of competing enterprises had been eliminated. H.R.Rep. No. 1191, 81st Cong., 1st Sess., p. 8. See Brown Shoe Co. v. United States, 370 U.S. 294, 321, n. 36, 82 S.Ct. 1502, 1521. Only the first of these generalizations is arguably applicable to the present merger; the market-extension aspects of the merger, as well as the evidence of Shopping Bag's declining profit margin and weak price competition, suggest that any conclusion under this test would be equivocal. See pp. 295—296, 298, n. 30, infra. Senator Kefauver stated explicitly on the Senate floor that the mere elimination of competition between the merged firms would not make the acquisition illegal; rather, 'the merger would have to have the effect of lessening competition generally.' 96 Cong.Rec. 16456.
10
Eighteen years ago, a dictum in Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 46, 68 S.Ct. 822, 828, 92 L.Ed. 1196, adverted to a 'reasonable possibility' as the appropriate standard for the corresponding language ('may be to substantially lessen competition') under § 3 of the Clayton Act, 15 U.S.C. § 14. The dictum provoked a sharp dissent in that case, id., at 55, 57 58, 68 S.Ct., at 832, 833—834, and the Court subsequently withdrew it, Standard Oil Co. of California and Standard Stations v. United States, 337 U.S. 293, 69 S.Ct. 1051, 93 L.Ed. 1371, only to reinstate it again today. This issue, which appeared settled at the time of the 1950 amendment, provoked an acrimonious exchange during the Senate hearings. Hearings before a Subcommittee of the Senate Committee on the Judiciary on H.R. 2734, 81st Cong., 1st & 2d Sess., pp. 160—168.
11
The decline continued at approximately the same rate to 1963, the last year for which data are available, when there were 3,590 single-store grocery firms in the area. The record contains no breakdown of the figures on single-store concerns. In an extensive study of the retail grocery industry on a mational scale, the Federal Trade Commission found that between 1939 and 1954 the total number of grocery stores in the United States declined by 109,000, or 28%. The entire decrease was suffered by stores with annual gross sales of less than $50,000. During the same period, the number of stores in all higher sales brackets increased. The Commission noted that the census figures, from which its data were taken, included an undetermined number of grocery firms liquidating after 1948 that merely closed their grocery operations and continued their remaining lines of business, such as nongrocery retailing, food wholesaling, food manufacturing, etc. Staff Report to the Federal Trade Commission, Economic Inquiry Into Food Marketing, Part I, Concentration and Integration in Retaining 48, 54 (1960).
12
The generalized case against the Court's numerical approach is stated in Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv.L.Rev. 226, 312, n. 261:
'(T)here are serious problems connected with the use of this yardstick. First, not every firm contributes equally to competition. In particular, there may be a fringe of firms too small to be able to affect price and production policies in the market as a whole. Alternatively, certain firms may be marginal in the sense that their costs and financial situations preclude them from having much, if any, impact on market conditions; indeed they may be able to remain in operation only because excessive profits are being earned by the stronger firms. An (exit) of companies of this sort would have much less significance than a counting of corporate heads would imply.'
13
Between 1953 and 1961, the population of the Los Angeles metropolitan area increased from 4,300,000 to 6,800,000 and the average population per grocery store increased from 695 to 1,439. Additional opportunity for new stores in the area results from the geographical division of the city into numerous suburbs, as well as from the lack of specific store loyalty among new residents.
14
Cf. Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93. In criticizing a recent decision of the Federal Trade Commission, one commentator has stated, in terms applicable mutatis mutandis to the Court's decision in the present case:
'* * * Any child alive in the 1950's could see that a restructuring of food retailing was then going on. The business was adjusting itself, through market mechanisms that included merger, to vast and profound changes in the American way of life. There is not a word in the FTC majority opinion that relates changes in the number of stores and chains to the proliferation of suburbs, the construction of shopping centers, and the final triumph of the supermarket—an innovation in retailing that has since spread across the Western world. The most important single cause of these changes was the automobile revolution * * * which not even the FTC can stop.
'* * * Plenty of living American men and women remember an era when virtually all groceries were sold through very small stores none of which had 'any significant market share.' Was this era the high point of competition in food retailing? Many little towns had, in fact, only one place where a given kind of food could be bought. In a typical city neighborhood, defined by the range of a housewife's willingness to lug groceries home on foot, there might be three or four relaxed 'competitors.' If she did not like the price or quality offered by them, she could take her black-string market bag, board a trolley car, and try her luck among the relaxed 'competitors' of some other neighborhood.' Ways, A New 'Worst' in Antitrust, Fortune, April 1966, pp. 111—112.
In the present case, the District Court found that in the era preceding the rise of the supermarkets, 'the area from which the typical store drew most of its customers was limited to a block or two in any direction and if a particular grocery store happened to be the only one in its immediate neighborhood, it had a virtual monopoly of local trade.' Thus, the Court's aphorism in United States v. Philadelphia Nat. Bank, 374 U.S. 321, 363, 83 S.Ct. 1715, 1741, 10 L.Ed.2d 915—that '(c)ompetition is likely to be greatest when there are many sellers, none of which has any significant market share'—is peculiarly maladroit in the historic context of the retail food industry. See also Hampe & Wittenberg, The Lifeline of America: Development of the Food Industry 313—372 (1964); Lebhar, Chain Stores in America 1859—1962, pp. 348—390 (1963).
15
See Joskow, Structural Indicia: Rank-Shift Analysis as a Supplement to Concentration Ratios, VI Antitrust Bulletin 9 (1961). In addition, the overall market share of the top 20 firms in fact showed a slight decline between 1958 and 1960. The statement in the concurring opinion in the present case, that 'All but two of the top 10 firms in 1958 were very probably also among the top 10 in 1948 or had acquired a firm that was among the top 10,' is based on conjecture. The record demonstrates only that the top four firms in 1948 were among the top 10 firms in 1958; the record neither identifies the remaining six of the top 10 firms in 1948 nor charts their subsequent history.
16
For a similar study of the retail food industry at the national level, see Lebhar, Small Chain Virility a Bar to Monopoly, Chain Store Age, Jan. 1962, p. E20. See also Gould, The Relation of Sales Growth to the Size of Multi-Store Food Retailers 6 (1966) (inverse correlation found between sales growth and size of chains with four or more stores).
17
Of these latter 119 chains, 66 went out of business altogether, 28 reduced their operations to a single store, and 25 were eliminated as separate competitors as a result of acquisitions by other chains.
18
On the basis of these facts, one witness concluded:
'The apparent willingness and ability of grocers to expand and create new chain entities at the staggering rate of more than 17 a year and the growth potential of new chains, precludes in my opinion the possibility that the retail grocery business in Los Angeles will become either monopolistic or oligopolistic in the foreseeable future. It must be remembered that in 1953, only 10 chains with as many as 10 stores each were operating in the area. These chains are recognized as being among the best managed, most successful and most aggressive supermarket operators in the country. They themselves have engaged in expansion programs of significant proportions since 1953. Yet, 10 years later, instead of having swept aside all competition and being left alone to compete among themselves, these same 10 chains are now faced with the necessity of competing against no less than 14 new chains of 10 or more stores each, a significantly greater number of smaller chains and a host of successful single store operators, of whom many are affiliated with powerful voluntary chains or other cooperative groups. * * * The growth of independents into chains and of small chains into larger ones * * * demonstrates convincingly that small concerns don't have to remain small in Los Angeles.'
19
Data for 1960, the only year for which such figures are available in the record, reveal a comparable agitation of entry and exit among operators of single stores. Although there was a net loss of 132 single outlet stores in 1960, 128 new single-outlet stores opened during the year.
20
As to Table 1 in the Appendix of the Court's opinion, this fact is obvious on the face of the table. As to Table 2 in the Appendix, examination of the record discloses that each of the nine acquisitions listed as involving a single store represented purchases of single stores from chains ranging in size from two to 49 stores.
21
See Table 1 in the Appendix of the Court's opinion.
22
Table 1 in the Appendix of the Court's opinion is somewhat misleading in that it weights the data from which it is drawn in favor of the acquisition by grocery chains of other chains consisting of relatively larger numbers of store units. The complete data of the witness included several acquisitions of one- and two-store concerns, together with the disposition of one ten-store chain to various individuals.
23
See Table 2 in the Appendix of the Court's opinion. This table, not a part of the record, was submitted by the Government in its reply brief, filed on the eve of oral argument.
24
See Foremost Dairies, Inc., 60 F.T.C. 944; Beatrice Foods Co., F.T.C.Docket No. 6653 (April 26, 1965); National Tea Co., F.T.C.Docket No. 7453 (March 4, 1966). Cf. United States v. Penn-Olin Chemical Co., 378 U.S. 158, 84 S.Ct. 1710, 12 L.Ed.2d 775; Proctor & Gamble Co., F.T.C.Docket No. 6901 (Nov. 26, 1963), rev'd 358 F.2d 74 (C.A.6th Cir.); Turner, Conglomerate Mergers and Section 7 of the Clayton Act, 78 Harv.L.Rev. 1313.
25
Evidence introduced by the defendants indicated that the overlap between the Von's and Shopping Bag stores was significantly smaller than that proposed by the government witness.
26
At the time of the merger in 1960, Von's operated 28 retail grocery stores in the Los Angeles area. It commenced operation as a partnership of the Von der Ahe family in 1932, during the depression, with a food concession in a small grocery store. Shopping Bag operated 36 stores in Los Angeles at the time of the merger; it commenced operation as a partnership in a small grocery store in 1930. So far as the record reveals, the competitive behavior of these firms was impeccable throughout their expansion, which took place solely by internal growth. In discussing the success of comparable firms vis-a -vis the Sherman Act, Judge Learned Hand stated, '(T)he Act does not mean to condemn the resultant of those very forces which it is its prime object to foster: finis opus coronat. The successful competitor, having been urged to compete, must not be turned upon when he wins.' United States v. Aluminum Co. of America, 2 Cir., 148 F.2d 416, 430.
27
Nor is it altogether easy to escape the feeling that it is not so much this merger, but Los Angeles itself, that is being invalidated here. Cf. Adelman, Antitrust Problems: The Antimerger Act, 1950—60, 51 Am.Econ.Rev. 236, 243 (May 1961): 'In the antitrust dictionary, 'powerful' has no necessary connection with monopoly power or market control or even market share. It means * * * one four-letter word: size.' Los Angeles is, to be sure, a big place. Although Shopping Bag's share of the Los Angeles market was only 4.2%, its sales in 1958 totaled $84,000,000. Compare the Court's statement in Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 333—334, 81 S.Ct. 623, 631:
'It is urged that the present contract preempts competition to the extent of purchases worth perhaps $128,000,000, and that this 'is, of course, not insignificant or insubstantial.' While $128,000,000 is a considerable sum of money, even in these days, the dollar volume, by itself, is not the test * * *.'
28
This is not a 'merger between two small companies to enable the combination to compete more effectively with larger corporations dominating the relevant market,' Brown Shoe Co. v. United States, 370 U.S. 294, 319, 82 S.Ct. 1502, 1521; cf. House Hearing, supra, n. 5, pp. 40—41; Senate Hearings, supra, n. 10, pp. 6, 51; 95 Cong.Rec. 11486, 11488, 11506; 96 Cong.Rec. 16436; H.R.Rep.No.1191, 81st Cong., 1st Sess., pp. 6—8; S.Rep.No.1775, 81st Cong., 2d Sess., p. 4. However, the Court today in a gratuitous dictum, ante, p. 277, undercuts even that principle by confining it to cases in which competitors are obliged to merge to save themselves from destruction by a larger and more powerful competitor.
29
Mr. Hayden, the president and principal stockholder of Shopping Bag, was advanced in years and was concerned over the absence of a strong management staff that could take over his responsibilities.
30
Von's was a considerably more successful competitor than Shopping Bag. Shopping Bag's net income as a percentage of total sales declined from 1.6% in 1957 to 0.9% in 1959, and its net profit as a percentage of total assets declined from 6.6% to 3.2%. During the same period, the net income of Von's increased from 2.1% to 2.3%, and its net profits declined from 12.7% to 10.8%.
31
One single-store operator, located adjacent to one supermarket and within a mile of two others, testified, 'I have often been asked if I could compete successfully against this sort of competition. My answer is and always has been that the question is not whether I can compete against them, but whether they can compete against me.'
Another single-store operator testified, 'Competition in the grocery business is on a store-by-store basis and any aggressive and able operator like myself can out-compete the store of any of the chains because of personalized service, better labor relations, and being in personal charge of the store and seeing that it is run properly.'
A third single-store operator testified, 'The chains in this area are good operators, but when they grow too large, they are actually easier to compete with from an independent's viewpoint. If I had a choice, I would rather operate a store near a chain unit than near another independent.'
32
See generally Staff Report to the Federal Trade Commission, Economic Inquiry Into Food Marketing, Part I, Concentration and Integration in Retailing, c. VI, 'Retailer-owned Cooperative Food Wholesalers'; c. VII, 'Wholesaler-sponsored Voluntary Retail Groups' (1960). The annual sales of Certified Grocers of California, Ltd., a retailer-owned cooperative whose members do business principally in the Los Angeles area, rose fourfold from $87,000,000 in 1948 to $345,000,000 in 1962, and the volume of its purchases exceeded that of all but the largest national chains doing business in Los Angeles. Most of the leading chains in the area began development in association with Certified Grocers, called the 'mother' of the industry. In some cases the cooperatives were able to offer even lower prices to their members than competing chains could obtain. The District Court found that the cooperatives also provided their members with assistance in merchandising, advertising, promotions, inventory control, and even the financing of new entry.
33
See Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv.L.Rev. 226, 302—303 (1960).
34
In a footnote, the Court emphasized the corollary principle that, 'if concentration is already great, the importance of preventing even slight increases in concentration and so preserving the
possibility of eventual deconcentration is correspondingly great.' United States v. Philadelphia Nat. Bank, 374 U.S. 321, 365, n. 42, 83 S.Ct. 1715, 1742. That corollary, of course, has no application here, since the Los Angeles retail grocery market can in no sense be characterized as one in which 'concentration is already great.' Compare United States v. Aluminum Co. of America, 377 U.S. 271, 84 S.Ct. 1283, 12 L.Ed.2d 314; United States v. Continental Can Co., 378 U.S. 441, 84 S.Ct. 1738, 12 L.Ed.2d 953. The importance of a trend toward concentration in the particular industry in question was recognized in Brown Shoe Co. v. United States, 370 U.S. 294, 332, 82 S.Ct. 1502, 1527. See also Pillsbury Mills, Inc., 50 F.T.C. 555, 572—573; United States v. Bethlehem Steel Corp., 168 F.Supp. 576, 604—607 (D.C.S.D.N.Y.); U.S. Atty. Gen. Nat. Comm. to Study the Antitrust Laws, Report 124 (1955).
35
As a result of the merger, the market share of the two largest firms increased from 14.4% to 15.5%, and the share of the six largest firms increased from 32.1% to 35.4%. The merger involved in Philadelphia Nat. Bank produced a single firm controlling 30% of the market, and resulted in an increase of from 44% to 59% in the market share of the two largest firms in the market. The Court's opinion is remarkable for its failure to support its conclusion by reference to even a single piece of economic theory. I shall not dwell here on the barometers of competition that have been suggested by the commentators. But it seems important to note that the present merger falls either outside, or at the very fringe, of the various mechanical tests that have been proposed. See, e.g., Kaysen &
Turner, Antitrust Policy 133—136 (1959) (horizontal merger with direct competitor is prima facie unlawful where acquiring company accounts for 20% or more of the market, or where merging companies together constitute 20% or more of the market; acquisitions producing less than 20% market control unlawful only where special circumstances are present, such as serious barriers to entry or substantial influence on prices by the acquired company); Stigler, Mergers and Preventive Antitrust Policy, 104 U.Pa.L.Rev. 176, 179 182 (1955) (acquisition unlawful if it produces a combined market share of 20% or more; acquisition permitted if the combined share is less than 5—10%); Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv.L.Rev. 226, 308—329 (1960) (no merger by the dominant firm in an industry if its market share is increased by more than 2—3%; no merger by other large firms in the industry where the combined market shares of the two-to-eight largest firms after the merger are increased by 7—8% or more over the shares that existed at any time during the preceding 5—10 years; no merger where acquired firm has 5% market share or more). See also Markham, Merger Policy Under the New Section 7: A Six-Year Appraisal, 43 Va.L.Rev. 489, 521—522 (1957). The 40% rule promoted by the concurring opinion in the present case seems no more than an ad hoc endeavor to rationalize the holding of the Court.
| 78
|
384 U.S. 312
86 S.Ct. 1505
16 L.Ed.2d 583
REESv.PEYTON.
No. 321, Misc.
May 31, 1966.
S. White Rhyne, Jr., and Charles A. Dukes, Jr., for petitioner.
Reno S. Harp III, Asst. Atty. Gen. of Virginia, for respondent.
Monroe H. Freedman and Melvin L. Wulf, for the American Civil Liberties Union and others, as amici curiae.
PER CURIAM.
1
Following a related federal conviction and life sentences for kidnapping, United States v. Rees, D.C., 193 F.Supp. 849, Melvin Davis Rees, Jr., was convicted of murder and sentenced to death by a state court in Virginia, and the judgment was affirmed on appeal in 1962. Rees v. Commonwealth, 203 Va. 850, 127 S.E.2d 406, cert. denied, 372 U.S. 964, 83 S.Ct. 1088, 10 L.Ed.2d 128. Thereafter, a habeas corpus petition was filed in the United States District Court for the Eastern District of Virginia, alleging that the state court conviction had violated federal constitutional rights of Rees. The District Court rejected these claims, 225 F.Supp. 507, and the Court of Appeals for the Fourth Circuit affirmed, 341 F.2d 859. With Rees' consent, his counsel then filed in this Court on June 23, 1965, the present petition for certiorari to review the Court of Appeals' decision, and the petition is therefore properly before us for disposition.
2
Nearly one month after this petition had been filed, Rees directed his counsel to withdraw the petition and forgo any further legal proceedings. Counsel advised this Court that he could not conscientiously accede to these instructions without a psychiatric evaluation of Rees because evidence cast doubt on Rees' mental competency. After further letters from Rees to his counsel and to this Court maintaining his position, counsel had Rees examined by a psychiatrist who filed a detailed report concluding that Rees was mentally incompetent. Psychiatrists selected by the State who sought to examine Rees at the state prison found themselves thwarted by his lack of cooperation, but expressed doubts that he was insane.
3
Whether or not Rees shall be allowed in these circumstances to withdraw his certiorari petition is a question which it is ultimately the responsibility of this Court to determine, in the resolution of which Rees' mental competence is of prime importance. We have therefore determined that, in aid of the proper exercise of this Court's certiorari jurisdiction, the Federal District Court in which this proceeding commenced should upon due notice to the State and all other interested parties make a judicial determination as to Rees' mental competence and render a report on the matter to us. While other courses have been suggested, cf. Anderson v. Kentucky, 376 U.S. 940, 84 S.Ct. 795, 11 L.Ed.2d 766, we think that all things considered the initial step should be the one just indicated. Until that step has been taken, we do not consider ourselves in a position to determine what disposition should be made of Rees' petition for certiorari.
4
Accordingly, we shall retain jurisdiction over the cause in this Court and direct the District Court to determine Rees' mental competence in the present posture of things, that is, whether he has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises. To that end, it will be appropriate for the District Court to subject Rees to psychiatric and other appropriate medical examinations and, so far as necessary, to temporary federal hospitalization for this purpose. Cf. 18 U.S.C. §§ 4244—4245 (1964 ed.). If the State wishes to obtain additional evidence for the federal inquiry by examining Rees in its own facilities, we do not foreclose such a supplemental course of action. The District Court will hold such hearings as it deems suitable, allowing the State and all other interested parties to participate should they so desire, and will report its findings and conclusions to this Court with all convenient speed.
5
It is so ordered.
6
Jurisdiction retained with directions to District Court.
| 89
|
384 U.S. 305
86 S.Ct. 1497
16 L.Ed.2d 577
Joseph A. RINALDI, Appellant,v.Howard YEAGER, Warden, et al.
No. 940.
Argued April 21, 1966.
Decided May 31, 1966.
Frederick B. Lacey, Newark, N.J., for appellant.
Alan B. Handler, Newark, N.J., for appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
The appellant, Joseph A. Rinaldi, was convicted of a criminal offense in a trial court of Essex County, New Jersey, and sentenced to prison for a term of give to 10 years. The Superior Court of New Jersey, Appellate Division, allowed him leave to appeal in forma pauperis and granted his petition for a transcript of the trial court proceedings, finding that the transcript was needed for the appeal and that Rinaldi was unable to pay for it.1 Rinaldi's appeal was unsuccessful, and he is now an inmate in the New Jersey State Prison.
2
As compensation for his work in prison, Rinaldi earns 20 cents a day, five days a week. Since late 1963, however, every day's pay has been withheld from him by prison officials and sent to the Treasurer of Essex County, in order to reimburse the county for the $215 cost of the transcript it provided for his appeal. This has been done in accordance with a statute enacted by New Jersey in 1956, shortly after this Court's decision in Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. Rinaldi brought this suit to enjoin enforcement of the statute on the ground that it is unconstitutional.2 A three-judge Federal District Court denied relief, 238 F.Supp. 960, and we noted probable jurisdiction, 382 U.S. 1007, 86 S.Ct. 627, 15 L.Ed.2d 524.
3
The statute in question is N.J.Stat.Ann. § 2A:152—18 (1964 Cum.Supp.), and it provides as follows:
4
'The county treasurer shall file a notice of (the payment by the county) and the amount thereof with the institution in which said person, upon whose application the transcript of the record was prepared, is confined, and, to the extent of the expense incurred, the county treasurer shall be reimbursed from any institutional earnings of such person, in the event that the application for relief is denied by * * * an appellate court.'
5
Rinaldi attacked the constitutionality of this statute on the basis of our decisions defining the duty of a State, under the Equal Protection Clause and the Due Process Clause, not to limit the opportunity of an appeal in a criminal case because of the appellant's poverty. Griffin v. People of State of Illinois, supra; Burns v. State of Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209; Draper v. State of Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899; cf. Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39; Lane v. Brown, 372 U.S. 477, 83 C.Ct. 768, 9 L.Ed.2d 892. A logical extension of these decisions, the appellant contends, would prohibit a State from discouraging an indigent's freedom to appeal by saddling him with the obligation of paying for the cost of a transcript in the event his appeal is unsuccessful. We do not reach this contention, however, because we find the statute constitutionally deficient upon a different ground.
6
The New Jersey law does not impose this financial burden upon all who have been convicted in its courts and whose appeals have been unsuccessful. It requires no repayment at all from a man who has received a suspended sentence or been placed on probation, regardless of how high his subsequent earnings may be. It requires no repayment at all from an unsuccessful appellant who has been sentenced only to pay a fine.3 Instead, the law fastens the duty of repayment only upon a single class of unsuccessful appellants those who are confined in institutions.4 We find that the discriminatory classification imposed by this law violates the requirements of the Equal Protection Clause.
7
The Equal Protection Clause requires more of a state law than nondiscriminatory application within the class it establishes. McLaughlin v. State of Florida, 379 U.S. 184, 189—190, 85 S.Ct. 283, 286—287, 13 L.Ed.2d 222. It also imposes a requirement of some rationality in the nature of the class singled out. To be sure, the constitutional demand is not a demand that a statute necessarily apply equally to all persons. 'The Constitution does not require things which are different in fact * * * to be treated in law as though they were the same.' Tigner v. State of Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124. Hence, legislation may impose special burdens upon defined classes in order to achieve permissible ends. But the Equal Protection Clause does require that, in defining a class subject to legislation, the distinctions that are drawn have 'some relevance to the purpose for which the classification is made.' Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 15 L.Ed.2d 620; Carrington v. Rash, 380 U.S. 89, 93, 85 S.Ct. 775, 778, 13 L.Ed.2d 675; Louisville Gas Co. v. Coleman, 277 U.S. 32, 37, 48 S.Ct. 423, 425, 72 L.Ed. 770; Royster Guano Co. v. Commonwealth of Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561 562, 64 L.Ed. 989.
8
We have been referred to no record of legislative history that might disclose with precision what this law was designed to achieve, but the statute itself bears the heading 'Reimbursement.' We may assume that a legislature could validly provide for replenishing a county treasury from the pockets of those who have directly benefited from county expenditures. To fasten a financial burden only upon those unsuccessful appellants who are confined in state institutions, however, is to make an invidious discrimination. Those appellants who have been sentenced only to pay fines have been accorded the same benefit by the county—a transcript used in an unsuccessful appeal, and all that distinguishes them from their institutionalized counterparts is the nature of the penalty attached to the offense committed. There is no defensible interest served by focusing on that distinction as a classifying feature in a reimbursement statute, since it bears no relationship whatever to the purpose of the repayment provision. Likewise, an appellant subject only to a suspended sentence or to probation is likely to differ from an inmate only in the extent of his criminal record. That, too, is a trait unrelated to the fiscal objective of the statute. Finally, the classification established by the statute cannot be justified on the ground of administrative convenience. Any supposed administrative inconvenience would be minimal, since repayment could easily be made a condition of probation or parole,5 and those punished only by fines could be reached through the ordinary processes of garnishment in the event of default.6
9
Apart from its fiscal objective, the only other purpose of this law advanced by the appellees is the deterrence of frivolous appeals. Assuming a law enacted to perform that function to be otherwise valid, the present statutory classification is no less vulnerable under the Equal Protection Clause when viewed in relation to that function. By imposing a financial obligation only upon inmates of institutions, the statute inevitably burdens many whose appeals, though unsuccessful, were not frivolous, and leaves untouched many whose appeals may have been frivolous indeed.
10
This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts. Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892; Draper v. State of Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899. We may assume that a State can validly provide for recoupment of the cost of appeals from those who later become financially able to pay. But any such provision must, under the Equal Protection Clause, be applied with an even hand.
11
The judgment is reversed, and the case is remanded to the District Court for proceedings consistent with this opinion.
12
Reversed and remanded.
13
Mr. Justice HARLAN, dissenting.
14
New Jersey recoups the cost of trial transcripts furnished to indigents out of prison allowances made to incarcerated prisoners, but does not seek reimbursement from parolees or convicted defendants not imprisoned. The Court holds this differentiation to violate the Equal Protection Clause. I am unable to agree. Under conventional equal-protection standards which disapprove only irrational and arbitrary classifications, the statute is plainly valid. See McLaughlin v. State of Florida, 379 U.S. 184, 190—191, 85 S.Ct. 283, 287—288, 13 L.Ed.2d 222; McGowan v. State of Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78—79, 31 S.Ct. 337, 340—341, 55 L.Ed. 369. Surely the State might reasonably choose to reimburse itself for such transcript costs out of prison allowances, but deem it not worth the added time and trouble, or even advisable, to attempt to extract such charges from a convict not in prison who must support himself on his own resources. Adhering to the traditional test of rationality, I would affirm the decision of the District Court.*
1
The following New Jersey statute authorizes initial imposition of the expense of the transcript upon the county:
'Any person convicted of any crime may make application under oath to any judge of the County Court or Law Division of the Superior Court of the county where the venue was laid showing that a copy of the transcript of the record, testimony and proceedings at the trial is necessary for the filing of any application with the trial court, and that he is unable, by reason of poverty, to defray the expense of procuring the same, and any such judge may, being satisfied of the facts stated and of the sufficiency thereof, certify the expense thereof to the county treasurer, who shall thereupon pay such expense, the amount thereof having been approved by the judge to whom such application was made. Where such person appeals to the Appellate Division of the Superior Court and copies of the transcript of the proceedings in the trial court are needed therefor he may make a similar application to such court which, being satisfied of the facts stated and the sufficiency thereof, may certify the expense and amount thereof to the county treasurer who shall thereupon pay such expense.' N.J.Stat.Ann. § 2A:152—17 (1964 Cum.Supp.).
2
The suit was brought pursuant to R.S. § 1979, 42 U.S.C. § 1983:
'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'
3
It is true that some indigents who are fined may not be able to pay the fine. New Jersey provides that they may be placed at labor in an institution until the fine is paid. N.J.Stat.Ann. § 2A:166—14; N.J.Stat.Ann. § 2A:166—16. Those who are convicted of misdemeanors, however, may be permitted to go at large until the fine is paid. N.J.Stat.Ann. § 2A:166—15. Moreover, felony defendants indigent for transcript purposes may be able to obtain the money to pay a fine and thus avoid confinement in an institution and the reimbursement obligation that such confinement entails.
4
Moreover, in view of another New Jersey statute, it appears that wages may not be withheld from every inmate who would otherwise be indebted to a county. N.J.Stat.Ann. § 30:4—92, provides in relevant part: 'Compensation for inmates of correctional institutions may be in the form of cash or remission of time from sentence or both.' Hence, some inmates may not receive cash in exchange for their labor. Other inmates, of course, may not be assigned to work. The reimbursement statute appears to allow for these variations insofar as it provides that '* * * the county treasurer shall be reimbursed from any institutional earnings of such person.' (Emphasis supplied.)
5
See N.J.Stat.Ann. § 2A:168—2; N.J.Stat.Ann. § 2A:167—8. See Kamisar & Choper, The Right to Counsel in Minnesota: Some Field Findings and Legal-Policy Observations, 48 Minn.L.Rev. 1, 23 24:
'The practice of certain judges in some of (the counties studied) and of all judges in others is to require, as a condition of probation, that the convicted indigent repay the county's expenditure for his lawyer. The probation officer usually informs the judge of the amount the defendant should be expected to repay each week. The survey indicates that this condition of probation is rarely, if ever, violated.'
6
See N.J.Stat.Ann. § 2A:17—50.
*
I find no substance to appellant's main argument, which the Court lays aside, that to permit any such recoupment from an indigent is an unconstitutional deterrent to appeal. Nor do I think there is any force to the argument in n. 4 (ante, p. 308), not even suggested by appellant, which at best goes to the validity of the statutes governing compensation and not to the reimbursement statute being reviewed.
| 12
|
384 U.S. 394
86 S.Ct. 1545
16 L.Ed.2d 642
UNITED STATES, Petitioner,v.UTAH CONSTRUCTION AND MINING CO.
No. 440.
Argued March 23 and 24, 1966.
Decided June 6, 1966.
[Syllabus from pages 394-396 intentionally omitted]
Irving Jaffe, Washington, D.C., for petitioner.
Gardiner Johnson, San Francisco, Cal., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
The typical construction contract between the Government and a private contractor provides for an equitable adjustment of the contract price or an appropriate extension of time, or both, if the government orders permitted changes in the work or if the contractor encounters changed conditions differing materially from those ordinarily anticipated. Likewise, it is provided that the contract shall not be terminated nor the contractor charged with liquidated damages if he is delayed in completing the work by unforeseeable conditions beyond his control, including acts of the Government. See Armed Services Procurement Regulations (hereinafter ASPR), 32 CFR §§ 7.602—3 to 7.602—5; Atomic Energy Commission Procurement Regulations (hereinafter AECPR), 41 CFR s 9—7.5005—2.1 Article 15 provides that 'all disputes concerning questions of fact arising under this contract' shall be decided by the contracting officer subject to written appeal to the head of the department, 'whose decision shall be final and conclusive upon the parties thereto.' ASPR, 32 CFR § 7.602—6; AECPR, 41 CFR s 9—7.5004—3.2 Appeals from the decision of the contracting officer are characteristically heard by a board or committee designated by the head of the contracting department or agency. Should the contractor be dissatisfied with the administrative decision and bring a Tucker Act suit for breach of contract in the Court of Claims or the District Court, 28 U.S.C. § 1346(a)(2) (1964 ed.), the finality accorded administrative fact finding by the disputes clause is limited by the provisions of the Wunderlich Act of 1954 which directs that such a decision 'shall be final and conclusive unless the same is fra(u)dulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.'3 With respect to this statutory provision we held in United States v. Carlo Bianchi & Co., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652, that where the evidentiary basis for the administrative decision is challenged in a breach of contract suit, Congress did not intend a de novo determination of the facts by the court, which must confine its review to the administrative record made at the time of the administrative appeal.
2
The issues in this case involve the coverage of the disputes clause and a recurring problem concerning the application of Bianchi to certain findings made during the administrative process. We granted certiorari because of the importance of these questions in the administration of government contracts. 382 U.S. 900, 86 S.Ct. 234, 15 L.Ed.2d 155.
I.
3
The contractor, Utah Construction & Mining Company, executed a contract in March 1953 to build a facility for the Atomic Energy Commission. After completing the project in January 1955, it filed with the contracting officer a 'Pier Drilling' claim, which asked for an adjustment in the contract price and an extension of time under Article 4, the 'changed conditions' clause. The contractor asserted it had encountered float rock in the course of excavating and drilling which, among other things, had increased its costs and delayed the work. Contrary to the decision of the contracting officer, the Advisory Board of Contract Appeals found the float rock to be a changed condition within the meaning of Article 4. But the Board nevertheless denied the request for a time extension and for delay damages. It found that the increased costs had been incurred by a subcontractor rather than the contractor and that the delay experienced by the contractor was not caused by the float rock but by a dispute over the quality of concrete aggregate furnished by the Government, a dispute not then before the Board for adjudication.
4
Another claim filed by the contractor, its 'Shield Window' claim, asserted the existence of changed conditions calling for relief under Article 4 by reason of inadequate specifications and drawings furnished by the Government. Additional compensation and additional time were demanded. The Board found there was no changed condition within Article 4 and denied additional compensation. However, it found the delay involved to be the result of difficulties inherent in a new field of construction rather than the fault of either party, and it therefore authorized a time extension under Article 9.
5
In the contractor's subsequent suit for breach of contract, the Court of Claims held both the Pier Drilling claim and the Shield Window claim to be claims for delay damages alleging a breach of contract by reason of the Government's unreasonable delay. In its view, such breach of contract claims were not within the disputes clause and the administrative findings regarding the responsibility for the delays were subject to de novo determination in the Court of Claims. The disputes clause limited the authority of the Board to "disputes concerning questions of fact arising under this contract." That meant 'a dispute over the rights of the parties given by the contract; it (did) not mean a dispute over a violation of the contract.' Utah Constr. & Mining Co. v, United States, 339 F.2d 606, 609—610, 168 Ct.Cl. 522, 527 (1964). Because the Advisory Board of Contract Appeals was clearly authorized to determine the cause of the delay in granting or denying the request for an extension of time under Articles 4 and 9, the dissenting judge thought the findings were reviewable only on the administrative record and therefore objected to the de novo trial ordered by the majority. 339 F.2d, at 615, 168 Ct.Cl., at 537 (Davis, J.).
6
The meaning of the Court of Claims' distinction between disputes over rights given by the contract and disputes over a violation of the contract has been clarified in a subsequent decision holding that to the extent complete relief is available under a specific contract adjustment provision, such as the changes or changed conditions clauses, the controversy falls within the disputes clause and cannot be tried de novo in a suit for breach of contract. Morrison-Knudsen Co. v. United States, 345 F.2d 833, 837, 170 Ct.Cl. 757, 762 (1965). With respect to relief available under the contract, therefore, the contractor must exhaust his administrative remedies and the findings and determination of the Board would be subject to review under the Wunderlich Act standards, as applied in Bianchi. But the Court of Claims has also ruled that when only partial relief is available under the contract—e.g., an extension of time under Article 4—the remedies under the contract are not exclusive and the contractor may secure damages in breach of contract if the Government's conduct has been unreasonable. See Fuller Co. v. United States, 69 F.Supp. 409, 108 Ct.Cl. 70, 90—102 (1947); Kehm Corp. v. United States, 93 F.Supp. 620, 119 Ct.Cl. 454, 465—473 (1950). The issue raised by the decision of the Court of Claims respecting the Pier Drilling and Shield Window claims is therefore whether factual issues that have once been properly determined administratively may be retried de novo in subsequent breach of contract actions for relief that is unavailable under the contract.
7
The other issue of significance in this case is raised by a third claim filed by the contractor and involves the matter referred to by the Advisory Board of Contract Appeals in disposing of the contractor's Pier Drilling claim. The contractor, as it was permitted to do under the contract, elected to purchase concrete aggregate from the government stockpile, discovering very shortly that the aggregate was dirty and its poor quality the cause of understrength concrete. The Government suspended the work for a time, directed temporary corrective procedures and itself undertook more permanent remedial measures. After completing the contract, the contractor claimed extra compensation based on the poor condition of the aggregate, which was alleged to be a changed condition under Article 4. The contracting officer rejected the claim and the Board ruled the appeal was untimely. It remarked, however, that if the claim was one for unliquidated damages for breach of warranty or for delay, it had no jurisdiction to award monetary relief. Rejecting the Government's position that even if a claim sought only a remedy that was not available under Articles 3, 4 or 9, it nevertheless was within the scope of the disputes clause and subject to 'final' administrative determination, the Court of Claims held that unless the claim sought relief for a 'change' under Article 3 or 'changed conditions' under Article 4 or 'excusable delay' under Article 9 and was adjustable by the terms of those provisions, the claim was not within the disputes clause, was not subject to administrative determination and was a matter for de novo trial and decision in the proper court.4
II.
8
We deal first with the issue of the scope of the disputes clause which is raised by the Court of Claims' treatment of the concrete aggregate claim. The Government reasserts here its position in the Court of Claims5 that the disputes clause authorizes and compels administrative action in connection with all disputes arising between the parties in the course of completing the contract. In its view, the disputes clause is not limited to those disputes arising under other provisions of the contract—Articles 3, 4 and 9 in this case—that contemplate equitable adjustment in price and time upon the occurrence of the specified contingencies. If the Government is correct, the concrete aggregate claim was a proper subject for administrative handling even if the substandard aggregate was not a changed condition within Article 4 and even if the claim was for breach of warranty and delay damages. From this and from the Government's position in United States v. Anthony Grace & Sons, Inc., 384 U.S., p. 424, 86 S.Ct., p. 1539, which we sustain, it would follow that the factual issues underlying this claim were not subject to a de novo trial in the Court of Claims.
9
We must reject the government position, as did all the judges in the Court of Claims. The power of the administrative tribunal to make final and conclusive findings on factual issues rests on the contract, more specifically on the disputes clause contained in Article 15. This basic proposition the United States does not challenge; and the short of the matter is that when the parties signed this contract in 1953, neither could have understood that the disputes clause extended to breach of contract claims not redressable under other clauses of the contract.6 Our conclusion rests on an examination of uniform, continuous, and long-standing judicial and administrative construction of the disputes clause, both before and after the contract here in question was executed. Reference to decisions subsequent to 1953 is justified in many cases as a practical construction of the clause by one of the contracting parties, the Government (for it has frequently been the Government that has urged a narrow construction of the disputes clause on the various Boards of Contract Appeals),7 and in any event as showing the construction on which innumerable other government contractors may have relied in not presenting breach of contract claims to the contracting officer, which claims would now be forever barred under the Government's interpretation by the contractual time limitations on the presentation of claims and appeals.8
10
Beginning in 1937, a series of cases in the Court of Claims decided prior to the execution of this contract had established that the jurisdiction of the Boards of Contract Appeals under the disputes clause was limited to claims for equitable adjustments, time extensions, or other remedies under specific contract provisions authorizing such relief and accordingly that the contractor need not process pure breach of contract claims through the disputes machinery before filing his court action. See, e.g., Phoenix Bridge Co. v. United States, 85 Ct.Cl. 603, 629—630 (1937); Plato v. United States, 86 Ct.Cl. 665, 677—678 (1938); John A. Johnson Contracting Corp. v. United States, 98 f.Supp. 154, 156, 119 Ct.Cl. 707, 745 (1951); Continental Illinois Nat. Bank & Trust Co. of Chicago v. United States, 115 F.Supp. 892, 897, 126 Ct.Cl. 631, 640—641 (1953). That has continued to be the view of the Court of Claims. E.g., Railroad Waterproofing Corp. v. United States, 137 F.Supp. 713, 715—716, 133 Ct.Cl. 911, 915—916 (1956); Ekco Products Co. v. United States, 312 F.2d 768, 773, 160 Ct.Cl. 75, 84 (1963); see also Hunter v. United States, 9 C.C.F., 72,647 (D.C.E.D.N.C.1963), aff'd per curiam, 331 F.2d 741 (C.A.4th Cir. 1964).
11
After its creation in 1942, the War Department Board of Contract Appeals quickly accepted the principle established by the Phoenix Bridge and Plato cases, Boyer t/a Harry Boyer, Son p Co., 1 C.C.F. 53 (1943); Kirk t/a Kirk Bldg. Co., 1 C.C.F. 67, 70—71 (1943), and long prior to 1953 it was the settled practice of the various Boards to refuse to consider pure breach of contract claims, e.g., Asbestos Wood Mfg. Co., 2 C.C.F. 203 (WDBCA 1944); Specer B. Lane Co., 2 C.C.F. 500, 505 (WDBCA 1944); Rust Engr. Co., 3 C.C.F. 1210 (NDBCA 1945). The United States, indeed, grudgingly concedes that the boards 'have frequently, and perhaps usually,' declined such jurisdiction. Such rulings are in fact legion, see, e.g., Dean Constr. Co., 1965—2 B.C.A. 4888 (GSBCA 1965); Prototype Development, Inc., 1965—2 B.C.A., 4993 (ASBCA 1965); Electrical Builders, Inc., 1964 B.C.A., 4377 (IBCA 1964); E. & E. J. Pfotzer, 1965—2 B.C.A., 5144 (ENG BCA 1965), and the decisions cited therein and in the decision below, 339 F.2d, at 616, n. 2, 168 Ct.Cl., at 538 (Davis, J., dissenting and concurring), and include decisions of the bodies appointed to administer the disputes clause on behalf of the Atomic Energy Commission, the contracting agency in this case, see Claremont Constr. Co., Dkt. No. 64 (Feb. 14, 1955); Frontier Drilling Co., Dkt. No. 74 (July 1, 1955); Utah Constr. Co., Dkt. No. 91 (Dec. 12, 1956); J. A. Tiberti Constr. Co., Dkt. No. CA—126 (May 2, 1961); but cf. Fick Foundry Co., 1965—2 B.C.A., 5052, at 23,786. The AEC Advisory Board of Contract Appeals reaffirmed this interpretation of the disputes clause in its discussion of respondent's concrete aggregate claim, see supra, p. 403.
12
The United States does not dispute the fact that the past construction of the standard disputes clause has been that it does not authorize the Boards of Contract Appeals to finally determine, and to grant relief for, all claims related to the contracted work.9 Instead, it attacks these rulings of the Court of Claims and the Boards of Contract Appeals concerning the scope of the standard disputes clause as erroneous and premised on principles that have since been rejected in other cases. But even if, as an original matter, the language of the disputes clause might have been susceptible of the interpretation urged by the Government, the restrictive meaning of the words 'arising under this contract' had long since been established when these parties used them in 1953. The question before us is what the parties intended, not whether the construction on which they relied was erroneous.
13
The United States, as an alternative argument, would limit the rulings described above to the question of availability of remedy, and it contends that even if it be accepted that the Boards of Contract Appeals are without jurisdiction to grant relief for breach of contract they are nevertheless authorized by the disputes clause to make binding findings of fact respecting all disputes. The argument is premised in the main on certain unique provisions in the charter of the Armed Services Board of Contract Appeals, which is the successor to the War Department Board of Contract Appeals. Special attention to the ASBCA is justified by its large caseload and its consequent importance as a model for the development of other Boards.
14
Originally the WDBCA took a narrow view of its jurisdiction, see Shedd, Disputes and Appeals: The Armed Services Board of Contract Appeals, 29 Law & Contemp. Prob. 39, 55 (1964), and as a result the Secretary of War issued on July 4, 1944, a memorandum directing the Board, inter alia, to
15
'(f)ind and administratively determine the facts out of which a claim by a contractor arises for damages against the Government for breach of contract, without expressing opinion on the question of the Government's liability for damages.' 9 Fed.Reg. 9463. Similarly, the present charter of the ASBCA provides that
16
'(w)hen in the consideration of an appeal it appears that a claim is involved which is not cognizable under the terms of the contract, the Board may, insofar as the evidence permits, make findings of fact with respect to such a claim without expressing an opinion on the question of liability.' 32 CFR § 30.1, App. A, Part I, § 5.
17
It will be noted that on their face the very provisions on which the Government relies in this phase of its argument conclusively refute the broader contention that the Boards may determine and afford relief for all contract claims, for they recognize that some claims for breach of contract may not be 'cognizable under the terms of the contract' and that in such cases the Boards should express no opinion on the question of liability.10 Nor do the provisions, in terms, provide any support for the view that the Boards may make binding, as distinguished from advisory, findings of fact.
18
In the first case before the WDBCA under the 1944 directive, the Board ruled that it would retain jurisdiction to hold a hearing and to make findings of fact even though it expressly recognized it could grant no relief and it was 'doubtful whether any findings the Board should make * * * would be given any consideration by a court * * *.' Columbia Constructors, Inc., 2 C.C.F. 942 (WDBCA 1944). Such willingness to make findings even though no hearing had theretofore been held was in keeping with the dual function of adjudicatory body and advisor to the Secretary then exercised by the WDBCA, which heard appeals on an advisory basis in the case of contracts that did not authorize the designation of a board as the representative of the Secretary to hear appeals, see generally Smith, The War Department Board of Contract Appeals, 5 Fed.B.J. 74, 77 (1943), and sometimes investigated claims for extraordinary relief under Title II of the First War Powers Act, 55 Stat. 838 (1941), see Ardmore Constr. Co., 3 C.C.F. 255, 265 (WDBCA 1944). Subsequently the contractor's appeal in the Columbia Constructors case was dismissed when the contractor represented that he did not desire a hearing if the Board could award no relief, thus confirming the parties' understanding that the 1944 memorandum did not require presentation to the WDBCA of all contract disputes as a prerequisite to a court action. 2 C.C.F. 1162 (WDBCA 1944). In later cases where a hearing had been held in connection with other claims the WDBCA did make special findings, but without any intimation that such findings were to have binding effect. E.g., Swords-McDougal Co., 3 C.C.F. 238 (WDBCA 1944); Fiske-Carter Constr. Co., 3 C.C.F. 415 (WDBCA 1945); Hargrave t/a Hargrave Constr. Co., 3 C.C.F. 1113, 1120 (WDBCA 1945).
19
The practice of the ASBCA has evidenced an even narrower understanding of the charter provision authorizing findings without expression of opinion on liability. In cases heard on the merits prior to decision of the jurisdictional question the Board has made special findings in accordance with the charter. See Specialty Assembling & Packing Co., 1959—2 B.C.A., 2370; J. W. Bateson Co., 1962 B.C.A., 3293; see also the Metrig Corp., 1963 B.C.A., 3658. But in Simmel-Industrie Meccaniche Societa per Azioni, 1961—1 B.C.A., 2917, the Board rejected the contractor's contention that '(t)he ASBCA has jurisdiction and is under a duty to make findings of fact in this appeal even if it lacked jurisdiction to make an award to appellant,' id., at 15,233. The Board interpreted the charter to mean that it would make special findings only in 'appeals where a hearing on the merits has been completed prior to the filing of a rule to show cause or a motion to dismiss.' Id., at 15,235. More recently the Board has explained that
20
'(g)enerally, as a matter of sound policy, the Board's discretionary right to make findings of fact in instances where a claim is not cognizable under the contract is not exercised, simply because the Board has no way to afford the parties the remedy which logically would flow from the facts found. The cases wherein the Board has declined to consider an appeal because it had no method within the confines of the contract terms to afford a remedy have sometimes been described, perhaps rather inaptly, as being beyond our jurisdiction or beyond our authority to consider. Basically, the lack is not of authority to hear but of authority finally to dispose administratively.' Lenoir Wood Finishing Co., 1964 B.C.A., 4111, at 20,061.
21
As Lenoir Wood Finishing Co. indicates, the ASBCA, like the WDBCA, has disclaimed any binding effect for its findings in those cases where it has made special findings solely under authority of the special charter provision. See also Simmel-Industrie Meccaniche Societa per Azioni, supra, at 15,235; J. W. Bateson Co., supra, at 16,985. Since the ASBCA has declared it is not under any mandatory duty to make findings at a contractor's request in cases where it has no jurisdiction to grant relief, it would seem strange indeed to interpret the disputes clause as embodying the parties' understanding that such cases were nevertheless to be determined administratively.
22
Since it is so clearly established that the special charter authority to make findings without expression of opinion on liability does not expand the scope of the disputes clause or empower the Board to make binding determinations of fact, one may well ask what purpose such authority, and the findings made pursuant to it, can possibly serve. One obvious answer is that the Board's findings may facilitate a settlement of the contractor's breach of contract claim. For example, the General Accounting Office, which has statutory authority to settle claims against the United States, Budget and Accounting Act, 1921, § 305, 42 Stat. 24, 31 U.S.C. § 71 (1964 ed.), provides no procedure for resolution of factual disputes, 21 Comp.Gen. 244, and thus refuses to undertake settlement where there are substantial factual disputes. Comp.Gen.Dec. B—147326, May 25, 1962; Comp.Gen.Dec. B 149795, Jan. 4, 1963. Accordingly, acceptance by the parties of the Board's findings might provide the necessary requisite for intervention of the GAO.11
23
Thus the settled construction of the disputes clause excludes breach of contract claims from its coverage, whether for purposes of granting relief or for purposes of making binding findings of fact that would be reviewable under Wunderlich Act standards rather than de novo. This is not to say that the Government does not have a powerful argument for construing the disputes clause to afford administrative relief for a wider spectrum of disputes arising between the contracting parties. It can be argued, as the Government persuasively does, that the same considerations which initially led to providing an administrative remedy in those situations covered by such clauses as Articles 3, 4 and 9 of the contract also support the broader reading of the disputes clause permitting and requiring administrative fact finding with respect to all disputes arising between the contracting parties. But the coverage of the disputes clause is a matter susceptible of contractual determination, United States v. Moorman, 338 U.S. 457, 70 S.Ct. 288, 94 L.Ed. 256, subject to the limitations on finality imposed by the Wunderlich Act, and one would have expected modification of the disputes clause to encompass breach of contract disputes if the restrictive interpretation of Article 15 was thought unduly to hinder government contracting. In fact the contracting department have not rejected the narrower judicial reading of the disputes clause nor attempted any wholesale revision of its language to cover all factual disputes. Instead they have acted to create alternative administrative remedies for some breach of contract claims and to disestablish others by fashioning additional specific adjustment provisions contemplating relief under the contract in specified situations not reached by such provisions as Articles 3, 4 and 9.
24
An example of the creation of alternative administrative remedies is afforded by the provisions in effect at various times since World War II, see First War Powers Act, Title II, 55 Stat. 838 (1941); Act of January 12, 1951, 64 Stat. 1257, authorizing extraordinary relief for certain claims of contractors. Pursuant to a delegation by the President under the statute presently in effect, Public Law 85—804, 72 Stat. 972, 50 U.S.C. § 1431 (1964 ed.), government departments and agencies exercising functions in connection with the national defense may, upon a finding that such action would 'facilitate the national defense,' enter into amendments and modifications of contracts without regard to other provisions of law respecting such amendments and modifications. As implemented by the departmental procurement regulations, see ASPR, 32 CFR § 17.000 et seq.; AECPR, 41 CFR § 9—17.000 et seq., the authority conferred encompasses amendments without consideration, correction of mutual mistakes, and formalization of informal commitments. This authority, which in many respects is analogous to power to settle claims, is delegated to Contract Adjustment Boards established within the departments and agencies concerned separate from the Boards of Contract Appeals. Because the regulations preclude resort to the powers conferred by Public Law 85—804 '(u)nless other legal authority in the Department concerned is deemed to be lacking or inadequate,' ASPR, 32 CFR § 17.205—1(b)(2), the Army Contract Adjustment Board has required contractors to exhaust remedies before the ASBCA under the disputes clause, Blaw-Knox Co., ACAB Dkt. No. 1019, Nov. 2, 1960. However, in Bendix Corp., ACAB Dkt. No. 1050, Sept. 11, 1962, which involved a claim for delay damages arising out of the Government's failure to make the construction site available on time, the Board ruled that the contractor need not present its claim to the ASBCA in view of that body's lack of jurisdiction over claims that were not premised on a provision for adjustment within the contract. Further, the ACAB confirmed that it was empowered to grant unliquidated damages for delay in breach of contract even though the contractor might also have a court action. Likewise, the Boards of Contract Appeals have consistently recognized that while they themselves may be without jurisdiction to grant relief for claimed breaches of contract, such claims, in appropriate cases, could be presented to the Adjustment Boards. See, e.g., Fiske-Carter Constr. Co., 3 C.C.F. 415 (WDBCA 1945); Ardmore Constr. Co., 3 C.C.F. 468 (WDBCA 1945); see generally Smith, The War Department Board of Contract Appeals, 5 Fed.B.J. 74, 82 (1943); cf. Doyle & Russell, Inc., 1965—2 2 B.C.A., 4912, at 23,220 (NASA BCA). Thus it is quite evident from the administration of Public Law 85—804 and its predecessors that the limitations on the jurisdiction of the Boards of Contract Appeals are well understood by the military procurement departments and Congress.12
25
An illustration of the disestablishment of breach of contract claims through the fashioning of additional contract adjustment provisions is provided by contractual provisions designed to deal with just such claims for delay damages as are presented here. In response to the importunings of Army contractors following this Court's ruling in United States v. Rice, 317 U.S. 61, 63 S.Ct. 120, 87 L.Ed. 53, that the contractor's remedy under Article 9 was limited to an extension of time, a 'Suspension of Work' clause was adopted for use in construction contracts, see T. C. Bateson Constr. Co., 1960—1 B.C.A. 2552 (ASBCA 1960), at 12,347—12,348,13 and has been the basis for administrative allowance of delay damages in numerous cases. A more extensive clause for 'Price Adjustment for Suspension, Delays, or Interruption of Work,' ASPR, 32 CFR § 7.604—3, was promulgated in 1961 for optional use in Department of Defense fixed-price construction contracts. Effective April 1965, the clause was made mandatory in such contracts, ASPR § 7—602.46,14 and the Armed Services Procurement Regulations Committee has proposed its use in fixed-price supply contracts as well. See generally Kelly, Government Contractors' Remedies: A Regulatory Reform, 18 Admin.L.Rev. 145, 148—152 (1965). An Interagency Task Group is currently reviewing the clauses in the standard contract form, including the Changes, Changed Conditions and Suspension of Work clauses, to determine whether they should be expanded in coverage to prevent fragmentation of remedies. See Federal Contracts Report, No. 79, Aug. 23, 1965, pp. A—6—A—7. While in one respect it can be said that clauses broadening remedies under the contract have been adopted in response to restrictive interpretation of the disputes clause and express dissatisfaction with the unavailability of an administrative remedy, the fact that the response has taken this measured form has manifested the parties' reliance on the prior interpretation and has properly tended to reinforce it. As the ASBCA remarked in Simmel-Industrie, supra, '(i)t is noteworthy that when it is intended to provide an administrative remedy for Government delays, specific contract clauses have been developed and are set forth for that purpose,' 1961—1 B.C.A., at 15,234.
26
Finally, we may note that development of provisions such as the Suspension of Work Clause illustrates not only administrative acceptance of the narrow interpretation of the disputes clause; it also indicates the lack of any compelling reason for overturning that interpretation at this late stage. Inclusion of such additional clauses in the contract naturally limits the area of disputes falling outside the framework of contractual adjustment and thus outside the disputes clause, as does expansive construction of the existing adjustment clauses. As one member of the ASBCA has recently remarked:
27
'* * * government procurement agencies started several years ago adding various contract clauses designed to convert what would otherwise be claims for damages for breach of contract into claims payable under such contract clauses and, hence, to be regarded as 'arising under the contract.' This trend has continued to the point where the field of claims for breach of contract that are not regarded as 'arising under the contract' is becoming very narrow indeed. Also there has been an increasing tendency for contract appeal boards to give a broad interpretation to contract clauses as vehicles for the administrative settlement of meritorious contract claims. Decisions where ASBCA dismisses an appeal for lack of jurisdiction as involving a claim for breach of contract are becoming increasingly rare.' Shedd, Disputes and Appeals: The Armed Services Board of Contract Appeals, 29 Law & Contemp. Prob. 39, 74 (1964).
28
For the reasons stated we reject the Government's contention that the disputes clause covers all disputes relating to the contract.
III.
29
We are unable to accept, however, the Court of Claims' disposition of the Pier Drilling and Shield Window claims. Although the Board lacked authority to consider delay damages under these two claims, it did have authority to consider the requests for extensions of time under Articles 4 and 9, and these requests called for an administrative determination of the facts. Such findings, if they otherwise satisfy the standards of the Wunderlich Act, are conclusive on the parties, not only with respect to the Articles 4 and 9 claims but also in the court suit for breach of contract and delay damages. This finality is required by the language and policies underlying the disputes clause and the Wunderlich Act and by the general principles of collateral estoppel.
30
Both the disputes clause and the Wunderlich Act categorically state that administrative findings on factual issues relevant to questions arising under the contract shall be final and conclusive on the parties.15 There is no room in the language of Article 15 or of the Act to consider factual findings final for some purposes but not for others. It would disregard the parties' agreement to conclude, as the Court of Claims did, that because the court suit was one for breach of contract which the administrative agency had no authority to decide, the court need not accept administrative findings which were appropriately made and obviously relevant to another claim within the jurisdiction of the board.
31
The position of the Court of Claims would permit erosion of the policies behind both the Wunderlich Act and the disputes clause. Any claim, whether within or without the disputes clause, can be couched in breach of contract language.16 The contractual and statutory scheme would be too easily avoided if a party could compel relitigation of a matter once decided by a mere exercise of semantics. Certainly, as the Court of Claims itself has since held, where the administrative agency has made relevant factual findings in the course of refusing relief which the contract authorizes it to give, the finality of these findings, if sufficiently supported, cannot be avoided in a court action for the same relief by labeling the refusal of an equitable adjustment as a breach of contract or by asserting that the primary issue involved is a question of law, Morrison-Knudsen Co. v. United States, 345 F.2d 833, 170 Ct.Cl. 757; Allied Paint & Color Works, Inc. v. United States, 2 Cir., 309 F.2d 133. Likewise, when the Board of Contract Appeals has made findings relevant to a dispute properly before it and which the parties have agreed shall be final and conclusive, these findings cannot be disregarded and the factual issues tried de novo in the Court of Claims when the contractor sues for relief which the board was not empowered to give.
32
This is no more than our decision in Carlo Bianchi requires. We there held that administrative findings in the course of adjudicating claims within the disputes clause were not to be retried in the Court of Claims but were to be reviewed by that court on the administrative record. This result, which was required both by the contract of the parties and by the Wunderlich Act, avoids 'a needless duplication of evidentiary hearings and a heavy additional burden in the time and expense required to bring litigation to an end,'17 373 U.S., at 717, 83 S.Ct., at 1415, and it encourages the parties to make a complete disclosure at the administrative level, rather than holding evidence back for subsequent litigation. H.R.Rep. No. 1380, 83d Cong., 2d Sess., 5 (1954). These same reasons support the finality, in a suit for delay damages, of all valid and appropriate administrative findings already made in the course of resolving a dispute 'arising under' the contract.
33
Although the decision here rests upon the agreement of the parties as modified by the Wunderlich Act, we note that the result we reach is harmonious with general principles of collateral estoppel.18 Occasionally courts have used language to the effect that res judicata principles do not apply to administrative proceedings,19 but such language is certainly too broad.20 When an administrative agency is acting in a judicial capacity and resolved disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose. Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263; Hanover Bank v. United States, 285 F.2d 455, 152 Ct.Cl. 391; Fairmont Aluminum Co. v. Commissioner of Internal Revenue, 4 Cir., 222 F.2d 622; Seatrain Lines, Inc. v. Pennsylvania R. Co., 3 Cir., 207 F.2d 255.21 See also Goldstein v. Doft, D.C., 236 F.Supp. 730, aff'd 2 Cir., 353 F.2d 484, cert. denied, 383 U.S. 960, 86 S.Ct. 1226, where collateral estoppel was applied to prevent relitigation of factual disputes resolved by an arbitrator.
34
In the present case the Board was acting in a judicial capacity when it considered the Pier Drilling and Shield Window claims, the factual disputes resolved were clearly relevant to issues properly before it, and both parties had a full and fair opportunity to argue their version of the facts and an opportunity to seek court review of any adverse findings. There is, therefore, neither need nor justification for a second evidentiary hearing on these matters already resolved as between these two parties.22
35
Accordingly, in light of the above, we affirm the Court of Claims in its interpretation of the scope of the disputes clause and we reverse as to its failure to give finality, in the suit for delay damages and breach of contract, to factual findings properly made by the Board. It is so ordered.
36
Affirmed in part and reversed in part.
1
In the contract presently before us these clauses read as follows:
'Article 3. Changes.—
'The contracting officer may at any time, by a written order, and without notice to the sureties, make changes in the drawings and/or specifications of this contract and within the general scope thereof. If such changes cause an increase or decrease in the amount due under this contract, or in the time required for its performance, an equitable adjustment shall be made and the contract shall be modified in writing accordingly. Any claim for adjustment under this article must be asserted within 10 days from the date the change is ordered: Provided, however, That the contracting officer, if he determines that the facts justify such action, may receive and consider, and with the approval of the head of the department or his duly authorized representative, adjust any such claim asserted at any time prior to the date of final settlement of the contract. If the parties fail to agree upon the adjustment to be made the dispute shall be determined as provided in Article 15 hereof. But nothing provided in this article shall excuse the contractor from proceeding with the prosecution of the work so changed.
'Article 4. Changed conditions.—
'Should the contractor encounter, or the Government discover, during the progress of the work subsurface and/or latent conditions at the site materially differing from those shown on the drawing or indicated in the specifications, or unknown conditions of an unusual nature differing materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the plans and specifications, the attention of the contracting officer shall be called immediately to such conditions before they are disturbed. The contracting officer shall thereupon promptly investigate the conditions, and if he finds that they do so materially differ the contract shall be modified to provide for any increase or decrease of cost and/or difference in time resulting from such conditions.
'Article 9. Delays—Damages.—
'If the contractor refuses or fails to prosecute the work, or any separable part thereof, with such diligence as will insure its completion within the time specified in article 1, or any extension
thereof, or fails to complete said work within such time, the Government may, by written notice to the contractor, terminate his right to proceed with the work or such part of the work as to which there has been delay. In such event the Government may take over the work and prosecute the same to completion, by contract or otherwise, and the contractor and his sureties shall be liable to the Government for any excess cost occasioned the Government thereby. If the contractor's right to proceed is so terminated, the Government may take possession of and utilize in completing the work such materials, appliances, and plant as may be on the site of the work and necessary therefor. If the Government does not terminate the right of the contractor to proceed, the contractor shall continue the work, in which event it will be impossible to determine the actual damages for the delay and in lieu thereof the contractor shall pay to the Government as fixed, agreed, and liquidated damages for each calendar day of delay until the work is completed or accepted the amount as set forth in the specifications or accompaning papers and the contractor and his sureties shall be liable for the amount thereof: Provided, That the right of the contractor to proceed shall not be terminated or the contractor charged with liquidated damages because of any delays in the completion of the work due to unforeseeable causes beyond the control and without the fault or negligence of the contractor, including, but not restricted to, acts of God, or of the public enemy, acts of the Government, acts of another contractor in the performance of a contract with the Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather or delays of subcontractors due to such causes, if the contractor shall within 10 days from the beginning of any such delay (unless the contracting officer shall grant a further period of time prior to the date of final settlement of the contract) notify the contracting officer in writing of the causes of delay, who shall ascertain the facts and the extent of the delay and extend the time for completing the work when in his judgment the findings of fact justify such an extension, and his findings of fact thereon shall be final and conclusive on the parties hereto, subject only to appeal, within 30 days, by the contractor to the head of the department concerned or his duly authorized representative, whose decision on such appeal as
to the facts of delay and the extension of time for completing the work shall be final and conclusive on the parties hereto.'
2
The disputes clause in the instant contract reads:
'Article 15. Disputes.—
'Except as otherwise specifically provided in this contract, all disputes concerning questions of fact arising under this contract shall be decided by the contracting officer subject to written appeal by the contractor within 30 days to the head of the department concerned or his duly authorized representative, whose decision shall be final and conclusive upon the parties thereto. In the meantime the contractor shall diligently proceed with the work as directed.'
3
'(N)o provision of any contract entered into by the United States, relating to the finality or conclusiveness of any decision of the head of any department or agency or his duly authorized representative or board in a dispute involving a question arising under such contract, shall be pleaded in any suit now filed or to be filed as limiting judicial review of any such decision to cases where fraud by such official or his said representative or board is alleged: Provided, however, That any such decision shall be final and conclusive unless the same is fradulent (sic) or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.
'Sec. 2. No Government contract shall contain a provision making final on a question of law the decision of any administrative official, representative, or board.' 68 Stat. 81, 41 U.S.C. §§ 321—322 (1964 ed.).
4
The court did not decide whether or not the substandard aggregate was or was not a 'changed condition' under Article 4. This matter it referred back to the Commissioner. It did hold, however, that if the claim fell within Article 4, and if the Board of Appeals had erroneously refused to hear it as untimely, court proceedings should be suspended until appropriate administrative action was completed. This latter determination the Court of Claims refused to follow in No. 439, United States v. Anthony Grace & Sons, Inc., 384 U.S. 424, 86 S.Ct. 1539.
5
Before the Advisory Board of Contract Appeals the Government asserted a contrary position. See n. 7, infra.
6
When the contract makes provision for equitable adjustment of particular claims, such claims may be regarded as converted from breach of contract claims to claims for relief under the contract. See Morrison-Knudsen Co. v. United States, 345 F.2d 833, 170 Ct.Cl. 757 (1965); Shedd, Disputes and Appeals: The Armed Services Board of Contract Appeals, 29 Law & Contemp. Prob. 39, 74 (1965); Kelly, Government Contractors' Remedies: A Regulatory Reform, 18 Admin.L.Rev. 145, 147 (1964). For ease of reference we will therefore use the term 'breach of contract claims' to refer to contract claims that are not redressable under specific contract adjustment provisions.
7
With respect to the concrete aggregate claim in this case, for example, the attorney appearing for the contracting officer moved to dismiss for lack of jurisdiction on the ground that the claim was for breach of contract, rather than for an equitable adjustment under Article 4, and did not fall within the coverage of the disputes clause.
8
By contrast, the period of limitations for contract actions in the Court of Claims is six years. 28 U.S.C. § 2501 (1964 ed.).
9
The Government does assert that the NASA Board of Contract Appeals 'apparently asserts jurisdiction for some purposes over claims for breach of contract,' citing Doyle & Russell, Inc., 1965 2 B.C.A. 4912. The purpose for which the Board asserted jurisdiction, however, was to determine whether it had authority to grant relief, and the Board also noted that the contractor had asserted a claim for additional compensation under the changes clause.
10
The ASBCA has also interpreted this charter provision as recognizing the narrow interpretation of the disputes clause. Lenoir Wood Finishing Co., 1964 B.C.A., 4111, at 20,060—20,061.
11
Of course such findings might also provide the foundation for action by other agencies authorized to compromise the claim or otherwise to grant relief, such as the Contract Adjustment Boards, see text, infra. With respect to the whole question of settlement, the Government contends that the early restrictive construction of the disputes clause was based in part on the belief that the various departments and their contracting officers had no authority to settle pure breach of contract claims, which view is asserted to have now been abandoned. See Cannon Constr. Co. v. United States, 319 F.2d 173, 162 Ct.Cl. 94 (1963). Since the authority of contracting officers to grant relief for all claims, through settlement, is now established, the argument continues, all contract claims may now be the basis of a dispute reviewable under the disputes clause. The error in this argument is that it fails to differentiate between an advance agreement to be bound by the decision of the contracting officer and the Board respecting an equitable adjustment and the power, without being bound prior to agreement, mutually to settle differences. This distinction has not escaped the ASBCA, which has ruled that although it subscribes to the view that contracting officers may negotiate settlements it has no power under the disputes clause to compel negotiation or settlement. Lenoir Wood Finishing Co., 1964 B.C.A., 4111, at 20,061; accord, John McShain, Inc., 1965—1 B.C.A., 4844 (GSBCA).
12
The committee reports on Public Law 85—804 indicate that Congress was well aware that the powers conferred under Title II of the First War Powers Act had been used 'to extend the time of performance on contracts and to waive liquidated damages provisions' and that '(a)mendments without consideration have also been used to provide relief for defense contractors where losses have resulted from inequitable action of the Government * * *.' H.R.Rep.No.2232, 85th Cong., 2d Sess., 4, 6 (1958); accord, S.Rep.No.2281, 85th Cong., 2d Sess., 4, 5 (1958), U.S. Code Congressional and Administrative News, p. 4043. The House subcommittee said that it had given particular attention to the regulations and administrative procedures employed under Title II and had found them to be proper. H.R.Rep.No.2232, 85th Cong., 2d Sess., 7 (1958). Congress thus acted upon the clear understanding that certain claims of the type the Government now contends to be covered by the disputes clause were not cognizable under normal contract adjustment procedures, thus necessitating the grant of extraordinary authority in Public Law 85—804.
13
A typical Suspension of Work clause provided:
'The Contracting Officer may order the Contractor to suspend all or any part of the work for such period of time as may be determine by him to be necessary or desirable for the convenience of the Government. Unless such suspension unreasonably delays the progress of the work and causes additional expense or loss to the Contractor, no increase in contract price will be allowed. In the case of suspension of all or any part of the work for an unreasonable length of time, causing additional expense or loss, not due to the fault or negligence of the Contractor, the Contracting Officer shall make an equitable adjustment in the contract price and modify the contract accordingly.' Barnet Brezner, 1961—1 B.C.A. 2895, at 15,119 (ASBCA). See also T. C. Bateson Constr. Co., 1960—1 B.C.A. 2552, at 12,319 (ASBCA).
14
This clause provides:
'(a) The Contracting Officer may order the Contractor in writing to suspend all or any part of the work for such period of time as he may determine to be appropriate for the convenience of the Government.
'(b) If, without the fault or negligence of the Contractor, the performance of all or any part of the work is for an unreasonable period of time, suspended, delayed, or interrupted by an act of the Contracting Officer in the administration of the contract, or by his failure to act within the time specified in the contract (or if no time is specified within a reasonable time), an adjustment shall be made by the Contracting Officer for any increase in the cost of performance of the contract (excluding profit) necessarily caused by the unreasonable period of such suspension, delay, or interruption, and the contract shall be modified in writing accordingly. No adjustment shall be made to the extent that performance by the Contractor would have been prevented by other causes even if the work had not been so suspended, delayed, or interrupted. No claim under this clause shall be allowed (i) for any costs incurred more than twenty days before the Contractor shall have notified the Contracting Officer in writing of the act or failure to act involved (but this requirement shall not apply where a suspension order has been issued), and (ii) unless the claim, in an amount stated, is asserted in writing as soon as practicable after the termination of such suspension, delay, or interruption but not later than the date of final payment under the contract. Any dispute concerning a question of fact arising under this clause shall be subject to the Disputes clause.'
15
Of course, if the findings made by the Board are not relevant to a dispute over which it has jurisdiction, such findings would have no finality whatsoever. See Part II, supra; Morrison-Knudsen Co. v. United States, 345 F.2d 833, 170 Ct.Cl. 757; Utah Constr. & Mining Co. v. United States, 339 F.2d 606, 617, 168 Ct.Cl. 522, 539—540 (dissenting opinion of Judge Davis).
16
See the example given by the Court of Claims below, 339 F.2d 606, 611, 168 Ct.Cl. 522, 530, where the addition of the adjective 'unreasonable' was felt sufficient to transform a dispute under the contract into a breach of contract claim. This position is now rejected. See n. 6, supra, and Morrison-Knudsen Co. v. United States, supra.
17
The Court of Claims observed, for example, that the testimony relating to the Shield Window claim took three days of the Board's time and the transcript runs 453 pages in length.
18
Judge Davis, in dissent below, wrote:
'This is the same general policy which nourishes the doctrine of collateral estoppel. The court is reluctant, however, to apply that principal to these administrative findings because of the nature and genesis of the boards. The Wunderlich Act, as applied in Bianchi, should dispel these doubts. The Supreme Court made it plain that Congress intended the boards (and like administrative representatives) to be the fact-finders within their contract area of competence, just as the Interstate Commerce Commission, the Federal Trade Commission, and the National Labor Relations Board are the fact-finders for other purposes. In the light of Bianchi's evaluation of the statutory policy, we should not squint to give a crabbed reading to the board's authority where it has stayed within its sphere, but should accept it as the primary fact-finding tribunal whose factual determinations (in disputes under the contract) must be received, if valid, in the same way as those of other courts or of the independent administrative agencies. Under the more modern view, the findings of the latter, at least when acting in an adjudicatory capacity, are considered final, even in a suit not directly related to the administrative proceeding, unless there is some good reason for a new judicial inquiry into the same facts. See Davis, Administrative Law 566 (1951); Fairmont Aluminum Co. v. Commissioner (of Internal Revenue), 222 F.2d 622, 627 (4th Cir., 1955). The only reasons the majority now offers for a judicial re-trial of factual questions already determined by valid board findings are the same policy considerations which Congress and the Supreme Court have already discarded in the Wunderlich Act and the Bianchi opinion.' 339 F.2d, at 618, 168 Ct.Cl., at 541—542.
For a frequently quoted and similar position relating to the finality to be given to findings of an arbitrator, see Bower v. Eastern Airlines, 3 Cir., 214 F.2d 623, 626.
19
Pearson v. Williams, 202 U.S. 281, 26 S.Ct. 608, 50 L.Ed. 1029; Churchill Tabernacle v. FCC, 81 U.S.App.D.C. 411, 160 F.2d 244.
20
See generally, 2 Davis, Administrative Law Treatise §§ 18.01—18.12 (1958); Groner & Sternstein, Res Judicata in Federal Administrative Law, 39 Iowa L.Rev. 300 (1954).
21
Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898, and United States v. International Building Co., 345 U.S. 502, 73 S.Ct. 807, 97 L.Ed. 1182, clearly contemplated the application of principles of res judicata to administrative findings, although for other reasons in those cases, res judicata was not applied.
22
Had the contractor not sought an extension of time in this case, he would have forfeited this relief 'under the contract' for failure to exhaust administrative remedies. But, at the same time, the findings which the Board made in connection with the time extension claim would not then have been available for introduction in the breach of contract action for relief not available under the contract.
| 89
|
384 U.S. 316
86 S.Ct. 1501
16 L.Ed.2d 587
FEDERAL TRADE COMMISSION, Petitioner,v.BROWN SHOE COMPANY, Inc.
No. 118.
Argued April 25, 1966.
Decided June 6, 1966.
Ralph S. Spritzer, Washington, D.C., for petitioner.
Robert H. McRoberts, St. Louis, Mo., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
Section 5(a)(6) of the Federal Trade Commission Act empowers and directs the Commission 'to prevent persons, partnerships, or corporations * * * from using unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce.'1 Proceeding under the authority of § 5, the Federal Trade Commission filed a complaint against the Brown Shoe Co., Inc., one of the world's largest manufacturers of shoes with total sales of $236,946,078 for the year ending October 31, 1957. The unfair practices charged against Brown revolve around the 'Brown Franchise Stores' Program' through which Brown sells its shoes to some 650 retail stores. The complaint alleged that under this plan Brown, a corporation engaged in interstate commerce, had 'entered into contracts or franchises with a substantial number of its independent retail shoe store operator customers which require said customers to restrict their purchases of shoes for resale to the Brown lines and which prohibit them from purchasing, stocking or reselling shoes manufactured by competitors of Brown.' Brown's customers who entered into these restrictive franchise agreements, so the complaint charged, were given in return special treatment and valuable benefits which were not granted to Brown's customers who did not enter into the agreements. In its answer to the Commission's complaint Brown admitted that approximately 259 of its retail customers had executed written franchise agreements and that over 400 others had entered into its franchise program without execution of the franchise agreement. Also in its answer Brown attached as an exhibit an unexecuted copy of the 'Franchise Agreement' which, when executed by Brown's representative and a retail shoe dealer, obligates Brown to give to the dealer but not to other customers certain valuable services, including among others architectural plans, costly merchandising records, services of a Brown field representative, and a right to participate in group insurance at lower rates than the dealer could obtain individually. In return, according to the franchise agreement set out in Brown's answer, the retailer must make this promise:
2
'In return I will:
3
'1. Concentrate my business within the grades and price lines of shoes representing Brown Shoe Company Franchises of the Brown Division and will have no lines conflicting with Brown Division Brands of the Brown Shoe Company.'
4
Brown's answer further admitted that the operators of 'such Brown Franchise Stores in individually varying degrees accept the benefits and perform the obligations contained in such franchise agreements or implicit in such Program,' and that Brown refuses to grant these benefits 'to dealers who are dropped or voluntarily withdraw from the Brown Franchise Program * * *.' The foregoing admissions of Brown as to the existence and operation of the franchise program were buttressed by many separate detailed fact findings of a trial examiner, one of which findings was that the franchise program effectively foreclosed Brown's competitors from selling to a substantial number of retail shoe dealers.2 Based on these findings and on Brown's admissions the Commission concluded that the restrictive contract program was an unfair method of competition within the meaning of § 5 and ordered Brown to cease and desist from its use.
5
On review the Court of Appeals set aside the Commission's order. In doing so the court said:
6
'By passage of the Federal Trade Commission Act, particularly § 5 thereof, we do not believe that Congress meant to prohibit or limit sales programs such as Brown Shoe engaged in in this case. * * * The custom of giving free service to those who will buy their shoes is widespread, and we cannot agree with the Commission that it is an unfair method of competition in commerce.' 339 F.2d 45, 56.
7
In addition the Court of Appeals held that there was a 'complete failure to prove an exclusive dealing agreement which might be held violative of § 5 of the Act.' We are asked to treat this general conclusion as though the court intended it to be a rejection of the Commission's findings of fact. We cannot do this. Neither this statement of the court nor any other statement in the opinion indicates a purpose to hold that the evidence failed to show an agreement between Brown and more than 650 franchised dealers which restrained the dealers from buying competing lines of shoes from Brown's competitors. Indeed, in view of the crucial admissions in Brown's formal answer to the complaint we cannot attribute to the Court of Appeals a purpose to set aside the Commission's findings that these restrictive agreements existed and that Brown and most of the franchised dealers in varying degrees lived up to their obligations. Thus the question we have for decision is whether the Federal Trade Commission can declare it to be an unfair practice for Brown, the second largest manufacturer of shoes in the Nation, to pay a valuable consideration to hundreds of retail shoe purchasers in order to secure a contractual promise from them that they will deal primarily with Brown and will not purchase conflicting lines of shoes from Brown's competitors. We hold that the Commission has power to find, on the record here, such an anticompetitive practice unfair, subject of course to judicial review. See Atlantic Rfg. Co. v. FTC, 381 U.S. 357, 367, 85 S.Ct. 1498, 1505, 14 L.Ed.2d 443.
8
In holding that the Federal Trade Commission lacked the power to declare Brown's program to be unfair the Court of Appeals was much influenced by and quoted at length from this Court's opinion in Federal Trade Comm'n v. Gratz, 253 U.S. 421, 40 S.Ct. 572, 64 L.Ed. 993. That case, decided shortly after the Federal Trade Commission Act was passed, construed the Act over a strong dissent by Mr. Justice Brandeis as giving the Commission very little power to declare any trade practice unfair. Later cases of this Court, however, have rejected the Gratz view and it is now recognized in line with the dissent of Mr. Justice Brandeis in Gratz that the Commission has broad powers to declare trade practices unfair.3 This broad power of the Commission is particularly well established with regard to trade practices which conflict with the basic policies of the Sherman and Clayton Acts even though such practices may not actually violate these laws.4 The record in this case shows beyond doubt that Brown, the country's second largest manufacturer of shoes, has a program, which requires shoe retailers, unless faithless to their contractual obligations with Brown, substantially to limit their trade with Brown's competitors. This program obviously conflicts with the central policy of both § 1 of the Sherman Act and § 3 of the Clayton Act against contracts which take away freedom of purchasers to buy in an open market.5 Brown nevertheless contends that the Commission had no power to declare the franchise program unfair without proof that its effect 'may be to substantially lessen competition or tend to create a monopoly' which of course would have to be proved if the Government were proceeding against Brown under § 3 of the Clayton Act rather than § 5 of the Federal Trade Commission Act. We reject the argument that proof of this § 3 element must be made for as we pointed out above our cases6 hold that the Commission has power under § 5 to arrest trade restraints in their incipiency without proof that they amount to an outright violation of § 3 of the Clayton Act or other provisions of the antitrust laws. This power of the Commission was emphatically stated in F.T.C. v. Motion Picture Adv. Co., 344 U.S. 392, at pp. 394—395, 73 S.Ct. 361, at p. 363, 97 L.Ed. 426:
9
'It is * * * clear that the Federal Trade Commission Act was designed to supplement and bolster the Sherman Act and the Clayton Act * * * to stop in their incipiency acts and practices which, when full blown, would violate those Acts * * * as well as to condemn as 'unfair methods of competition' existing violations of them.'
10
We hold that the Commission acted well within its authority in declaring the Brown franchise program unfair whether it was completely full blown or not.
11
Reversed.
1
38 Stat. 719, as amended, 15 U.S.C. § 45(a)(6) (1964 ed.).
Section 5(a)(1) of the Federal Trade Commission Act provides that 'Unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce, are declared unlawful.'
2
In its opinion the Commission found that the services provided by Brown in its franchise program were the 'prime motivation' for dealers to join and remain in the program; that the program resulted in franchised stores purchasing 75% of their total shoe requirements from Brown—the remainder being for the most part shoes which were not 'conflicting' lines, as provided by the agreement; that the effect of the plan was to foreclose retail outlets to Brown's competitors, particularly small manufacturers; and that enforcement of the plan was effected by teams of field men who called upon the shoe stores, urged the elimination of other manufacturers' conflicting lines and reported deviations to Brown who then cancelled under a provision of the agreement. Compare Brown Shoe Co. v. United States, 370 U.S. 294, 296, 82 S.Ct. 1502, 1508, 8 L.Ed.2d 510.
3
See, e.g., Federal Trade Comm'n v. R. F. Keppel & Bro., Inc., 291 U.S. 304, 310, 54 S.Ct. 423, 425, 78 L.Ed. 814; Federal Trade Comm'n v. Cement Institute, 333 U.S. 683, 693, 68 S.Ct. 793, 799, 92 L.Ed. 1010; Atlantic Rfg. Co. v. FTC, 381 U.S. 357, 367, 85 S.Ct. 1498, 1505, 14 L.Ed.2d 443.
4
See, e.g., Fashion Originators' Guild of America v. Federal Trade Comm'n, 312 U.S. 457, 463, 61 S.Ct. 703, 706, 85 L.Ed. 949; Atlantic Rfg. Co. v. FTC, 381 U.S. 357, 369, 85 S.Ct. 1498, 1506.
5
Section 1 of the Sherman Act, 26 Stat. 209, 15 U.S.C. § 1 (1964 ed.), declares illegal 'Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations * * *.'
Section 3 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 14 (1964 ed.), provides in relevant part:
'It shall be unlawful for any person engaged in commerce * * * to * * * make a * * * contract for sale of goods * * * for * * * resale within the United States * * * on the condition, agreement, or understanding that the * * * purchaser thereof shall not use or deal in the goods * * * of a competitor or competitors of the * * * seller, where the effect of such * * * condition, agreement, or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce.'
6
See cases cited in note 4, supra.
| 78
|
384 U.S. 364
86 S.Ct. 1531
16 L.Ed.2d 622
Salvatore SHILLITANI, Petitioner,v.UNITED STATES of America. Andimo PAPPADIO, Petitioner, v. UNITED STATES of America.
Nos. 412 and 442.
Argued March 2, 1966.
Decided June 6, 1966.
Albert J. Krieger, New York City, and Jacob Kossman, Philadelphia, Pa., for petitioners.
Ralph S. Spritzer, Washington, D.C., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
These consolidated cases again present the difficult question whether a charge of contempt against a witness for refusal to answer questions before a grand jury requires an indictment and jury trial. In both cases, contempt proceedings were instituted after petitioners had refused to testify under immunity granted by the respective District Courts. Neither petitioner was indicted or given a jury trial. Both were found guilty and sentenced to two years' imprisonment, with the proviso that if either answered the questions before his sentence ended, he would be released. The opinion of the District Court in Pappadio is reported at 235 F.Supp. 887 (D.C.S.D.N.Y.1964). In Shillitani, the District Court simply entered an order, which is not reported. The Court of Appeals for the Second Circuit affirmed each conviction in separate opinions. United States v. Pappadio, 346 F.2d 5 (2 Cir., 1965); United States v. Shillitani, 345 F.2d 290 (2 Cir., 1965). We granted certiorari to review the validity of the sentences imposed in both cases. 382 U.S. 913, 916, 86 S.Ct. 287, 15 L.Ed.2d 231 (1965). We hold that the conditional nature of these sentences renders each of the actions a civil contempt proceeding, for which indictment and jury trial are not constitutionally required. However, since the term of the grand jury before which petitioners were contumacious has expired, the judgments below must be vacated and the cases remanded for dismissal.
I.
2
No. 412, Shillitani v. United States.
3
Shillitani appeared under subpoena before a grand jury investigating possible violations of the federal narcotics laws. On three occasions he refused to answer questions, invoking his privilege against self-incrimination. At the Government's request, the District Judge then granted him immunity under the Narcotic Control Act of 1956, 18 U.S.C. § 1406 (1964 ed.), and ordered him to answer certain questions. When called before the grand jury again, Shillitani persisted in his refusal. Thereafter, in a proceeding under Rule 42(b) of the Federal Rules of Criminal Procedure,1 the District Court found him guilty of criminal contempt. No jury trial was requested. Shillitani was sentenced to prison for two years 'or until the further order of this Court. Should * * * Mr. Shillitani answer those questions before the expiration of said sentence, or the discharge of the said grand jury, whichever may first occur, the further order of this Court may be made terminating the sentence of imprisonment.' The Court of Appeals affirmed, rejecting Shillitani's constitutional objection to the imposition of a two-year sentence without indictment or trial by jury on the basis that 'the contempt proceedings preceded any compliance' and the 'sentence contained a purge clause.' It further construed the sentence as giving Shillitani an unqualified right to be released if and when he obeyed the order to testify. 345 F.2d, at 294.
4
Pappadio appeared under subpoena before the same grand jury. He also refused three times to answer numerous questions on the ground that the answers would incriminate him. He was then granted immunity under 18 U.S.C. § 1406 and directed to testify. He continued to refuse to answer any questions except those of identification. In opposition to the grand jury's subsequent request that the District Court require Pappadio to cooperate, his attorney claimed that he should not be called as a witness so long as a 1958 indictment charging him with conspiracy to violate the narcotics laws was pending. The District Court held that Pappadio had complete immunity, including any criminal proceeding then pending, and ordered him to answer all questions previously asked. Upon return to the grand jury, Pappadio did respond to numerous questions, but still refused to answer five questions pertaining to his alleged association with a group headed by Thomas Lucchese which engaged in narcotics traffic and other illicit activities.2 An order to show cause was issued, Pappadio's demand for a jury was denied, and the District Court found him in contempt for willful disobedience of its order to testify. He received a sentence almost identical to that given Shillitani, and the Court of Appeals affirmed on the same grounds.3
II.
5
We believe that the character and purpose of these actions clearly render them civil rather than criminal contempt proceedings. See Penfield Co. v. Securities & Exchange Comm., 330 U.S. 585, 590, 67 S.Ct. 918, 921, 91 L.Ed. 1117 (1947). As the distinction was phrased in Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 449, 31 S.Ct. 492, 501, 55 L.Ed. 797 (1911), the act of disobedience consisted solely 'in refusing to do what had been ordered,' i.e., to answer the questions, not 'in doing what had been prohibited.' And the judgments imposed conditional imprisonment for the obvious purpose of compelling the witnesses to obey the orders to testify. When the petitioners carry 'the keys of their prison in their own pockets,' In re Nevitt, 117 F. 448, 461 (C.A.8th Cir. 1902), the action 'is essentially a civil remedy designed for the benefit of other parties and has quite properly been exercised for centuries to secure compliance with judicial decrees.' Green v. United States, 356 U.S. 165, 197, 78 S.Ct. 632, 650, 2 L.Ed.2d 672 (1958) (Black, J., dissenting). In short, if the petitioners had chosen to obey the order they would not have faced jail. This is evident from the statement of the District Judge at the time he sentenced Shillitani:
6
'I want to make it clear that the sentence of the Court is not intended so much by way of punishment as it is intended solely to secure for the grand jury answers to the questions that have been asked of you.' (Emphasis supplied.) The Court of Appeals also interpreted the sentence as conditional: 'We construe the judgment in this case * * * to mean that defendant has an unqualified right to be released from prison once he obeys Judge Wyatt's order. As thus construed, the sentence was entirely proper.' 345 F.2d, at 294. While all of the parties before this Court briefed the issues with reference to criminal contempt, counsel for petitioners and the Government conceded at argument that the contempt orders were remedial, and therefore might well be deemed civil in nature rather than criminal.4
7
The fact that both the District Court and the Court of Appeals called petitioners' conduct 'criminal contempt' does not disturb our conclusion. Courts often speak in terms of criminal contempt and punishment for remedial purposes. See, e.g., United States v. Onan, 190 F.2d 1 (C.A.8th Cir. 1951). 'It is not the fact of punishment, but rather its character and purpose, that often serve to distinguish' civil from criminal contempt. Gompers v. Buck Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498 (1911). Despite the fact that Shillitani and Pappadio were ordered imprisoned for a definite period, their sentences were clearly intended to operate in a prospective manner to coerce, rather than punish. As such, they relate to civil contempt. While any imprisonment, of course, has punitive and deterrent effects, it must be viewed as remedial if the court conditions release upon the contemnor's willingness to testify. See Nye v. United States, 313 U.S. 33, 42—43, 61 S.Ct. 810, 812 813, 85 L.Ed. 1172 (1941). The test may be stated as: what does the court primarily seek to accomplish by imposing sentence? Here the purpose was to obtain answers to the questions for the grand jury.5
III.
8
There can be no question that courts have inherent power to enforce compliance with their lawful orders through civil contempt. United States v. United Mine Workers, 330 U.S. 258, 330 332, 67 S.Ct. 677, 713—714, 91 L.Ed. 884 (1947) (Black and Douglas, JJ., concurring in part and dissenting in part); United States v. Barnett, 376 U.S. 681, 753—754, 84 S.Ct. 984, 1019—1020, 12 L.Ed.2d 23 (1964) (Goldberg, J., dissenting). And it is essential that courts be able to compel the appearance and testimony of witnesses. United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950). A grand jury subpoena must command the same respect. Cf. Levine v. United States, 362 U.S. 610, 617, 80 S.Ct. 1038, 1043, 4 L.Ed.2d 989 (1960). Where contempt consists of a refusal to obey a court order to testify at any stage in judicial proceedings, the witness may be confined until compliance. McCrone v. United States, 307 U.S. 61, 59 S.Ct. 685, 83 L.Ed. 1108 (1939); Giancana v. United States, 352 F.2d 921 (C.A.7th Cir.), cert. denied, 382 U.S. 959, 86 S.Ct. 437, 15 L.Ed.2d 362 (1965).6 The conditional nature of the imprisonment—based entirely upon the contemnor's continued defiance—justifies holding civil contempt proceedings absent the safeguards of indictment and jury, Uphaus v. Wyman, 364 U.S. 388, 403—404, 81 S.Ct. 153, 155, 5 L.Ed.2d 148 (1960) (Douglas, J., dissenting), provided that the usual due process requirements are met.7
9
However, the justification for coercive imprisonment as applied to civil contempt depends upon the ability of the contemnor to comply with the court's order. Maggio v. Zeitz, 333 U.S. 56, 76, 68 S.Ct. 401, 411, 92 L.Ed. 476 (1948). Where the grand jury has been finally discharged, a contumacious witness can no longer be confined since he then has no further opportunity to purge himself of contempt. Accordingly, the contempt orders entered against Shillitani and Pappadio were improper insofar as they imposed sentences that extended beyond the cessation of the grand jury's inquiry into petitioners' activities.8 Having sought to deal only with civil contempt, the District Courts lacked authority to imprison petitioners for a period longer than the term of the grand jury. This limitation accords with the doctrine that a court must exercise '(t)he least possible power adequate to the end proposed.' Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242 (1821); In re Michael, 326 U.S. 224, 227, 66 S.Ct. 78, 79, 90 L.Ed. 30 (1945).9 The objection that the length of imprisonment thus depends upon fortuitous circumstances, such as the life of the grand jury and when a witness appears, has no relevance to the present situation. That argument would apply only to unconditional imprisonment for punitive purposes, which involves different considerations. Once the grand jury ceases to function, the rationale for civil contempt vanishes, and the contemnor has to be released. Since the term of the grand jury in these cases expired in March 1965, the judgments here for review are vacated, and the cases remanded with directions that they be dismissed. It is so ordered.
10
Judgments vacated and cases remanded with directions.
11
Mr. Justice BLACK concurs in the result.
12
Mr. Justice WHITE took no part in the decisions of these cases.
1
This rule provides:
'Disposition Upon Notice and Hearing. 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.'
No. 442, Pappadio v. United States.
2
These questions were as follows:
'Mr. Pappadio, who were the attorneys who were present at these meetings?'
'Aside from the meetings which you described, which took place on the street, where else did you meet with Lucchese?'
'Who else was present at these meetings besides yourself, Lucchese and the attorneys?'
'All right; How many of such meetings were there?'
'Where did the meetings take place?'
3
Because of the similarity in language between the two contempt orders, it is reasonable to assume that the Court of Appeals also construed Pappadio's sentence as giving him an absolute right to be released upon compliance, although the opinion was silent on this point.
4
The record of the contempt proceedings in Pappadio's case further indicates that the District Judge viewed the matter as civil contempt. The following colloquy offers one example:
'Mr. Lawler: Your Honor, since the primary purpose of this investigation is to obtain testimony or to obtain evidence so that indictments might be filed or voted upon, might I suggest * * * that you include a clause in the sentence that if Mr. Pappadio does answer the questions as directed, that a further application may be made to your Honor to reconsider this sentence, so that we will have some coercive effect on Mr. Pappadio.
'The Court: Yes, I shall adopt the proposal presented by Assistant United States Attorney Lawler, and my decision shall be deemed to include a provision reading in the form and manner proposed * * *.'
The Assistant United States Attorney again stressed the coercive function of the sentences when opposing applications for bail pending appeal by both Shillitani and Pappadio.
5
On the contrary, a criminal contempt proceeding would be characterized by the imposition of an unconditional sentence for punishment or deterrence. See Cheff v. Schnackenberg, 384 U.S. 377, 86 S.Ct. 1524.
6
The court may also impose a determinate sentence which includes a purge clause. This type of sentence would benefit an incorrigible witness. It raises none of the problems surrounding a judicial command that unless the witness testifies within a specified time he will be imprisoned for a term of years. See Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249 (1960).
7
See Parker v. United States, 153 F.2d 66, 70, 163 A.L.R. 379 (C.A.1st Cir. 1946).
8
By the same token, the sentences of imprisonment may be continued or reimposed if the witnesses adhere to their refusal to testify before a successor grand jury.
9
This doctrine further requires that the trial judge first consider the feasibility of coercing testimony through the imposition of civil contempt. The judge should resort to criminal sanctions only after he determines, for good reason, that the civil remedy would be inappropriate.
| 01
|
384 U.S. 373
86 S.Ct. 1523
16 L.Ed.2d 629
Paul Theodore CHEFF, Petitioner,v.Elmer J. SCHNACKENBERG et al.
No. 67.
Argued March 3, 1966.
Decided June 6, 1966.
[Syllabus from pages 373-375 intentionally omitted]
Joseph E. Casey, Washington, D.C., for petitioner.
Nathan Lewin, Washington, D.C., for respondents.
Mr. Justice CLARK announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE, Mr. Justice BRENNAN and Mr. Justice FORTAS join.
1
This is a companion case to No. 412, Shillitani v. United States, and No. 442, Pappadio v. United States, 384 U.S. 364, 86 S.Ct. 1531. Unlike those cases, this is a criminal contempt proceeding.
2
Upon petition of the Federal Trade Commission, Cheff was charged, along with Holland Furnace Company and 10 other of its officers, with criminal contempt of the Court of Appeals for the Seventh Circuit. The alleged contemnors were tried before a panel of three judges of the Court of Appeals without a jury. The corporation and three of its officers, including Cheff, were found guilty of violating a previous order of that court. Cheff, a former president and chairman of the board of Holland, was sentenced to six months' imprisonment; the other two officers were fined $500 each; and the corporation was fined $100,000. The remaining eight individuals were acquitted. 341 F.2d 548. Cheff and Holland petitioned for certiorari. We denied Holland's petition, Holland Furnace Co. v. Schnackenberg, 381 U.S. 924, 85 S.Ct. 1559, 14 L.Ed.2d683, and granted Cheff's, limited to a review of the question whether, after a denial of a demand for a jury, a sentence of imprisonment of six months is constitutionally permissible under Article III and the Sixth Amendment. Cheff v. Schnackenberg, 382 U.S. 917, 86 S.Ct. 285, 15 L.Ed.2d 232. We hold that Cheff was not entitled to a jury trial and affirm the judgment.
I.
3
The case had its inception in proceedings before the Federal Trade Commission where, in 1954, complaints were issued against Holland charging it with unfair methods of competition and deceptive trade practices in connection with the sale of its products. After extensive hearings, the Commission issued a cease-and-desist order against Holland 'and its officers, agents, representatives and employees' prohibiting the continuance of practices the Commission found illegal. In the Matter of Holland Furnace Co., 55 F.T.C. 55 (1958).
4
Holland petitioned the Court of Appeals to review and set aside the order of the Commission. Soon thereafter the Commission, claiming that Holland was continuing to violate its order, moved the Court of Appeals for a pendente lite order requiring compliance. On August 5, 1959, the court issued an order commanding Holland to 'obey and comply with the order to cease and desist * * * unless and until said order shall be set aside upon review by this Court or by the Supreme Court of the United States * * *.' This order forms the basis of this criminal contempt proceeding. Meanwhile, Holland's petition for review was decided adversely to the corporation. In separate opinions, the Court of Appeals upheld the jurisdiction of the Commission to enter its cease-and-desist order, Holland Furnace Co. v. F.T.C., 7 Cir., 269 F.2d 203 (1959), and affirmed on the merits, 295 F.2d 302 (1961).
5
In March 1962 the Commission petitioned the Court of Appeals to enter a show cause order against Holland for contempt of its pendente lite order. A rule was issued and attorneys appointed to prosecute on behalf of the court. Thereafter, in April 1963, rules were issued against Cheff and the other officers, as individuals, to show cause why they should not be held in criminal contempt 'by reason of having knowingly, wilfully and intentionally caused, and aided and abetted in causing, respondent Holland Furnace Company to violate and disobey, and fail and refuse to comply with' the order of August 5, 1959. Cheff demanded a jury trial, which was denied, and following a full hearing extending over a 10-day period the court found him guilty. As we have stated, a sentence of six months was imposed. In accordance with the limited grant of certiorari, there is no issue here as to the sufficiency of the hearing, excepting the absence of a jury.
II.
6
Cheff first contends that contempt proceedings in the Court of Appeals which stem from administrative law enforcement proceedings are civil, rather than criminal, in nature. This may be true where the purpose of the proceeding is remedial. Cf. Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531. Within the context of the question before us, however, the contention is irrelevant, for a jury trial is not required in civil contempt proceedings, as we specifically reaffirm in Shillitani, supra. In any event, the contention is without merit. The purpose of the proceedings against Cheff could not have been remedial for he had severed all connections with Holland in 1962, long before the contempt proceedings were instituted against him. He had no control whatever over the corporation and could no longer require any compliance with the order of the Commission. Moreover, as Cheff himself points out, the corporation 'had completely withdrawn from the business of replacement of furnaces, which is the area in which the violation is alleged.' There was, therefore, an 'absence of any necessity of assuring future compliance' which made the six-month sentence 'entirely punitive.' Brief for Petitioner, p. 16.
7
There can be no doubt that the courts of appeals have the power to punish for contempt. 18 U.S.C. § 401 (1964 ed.). See e.g., cases cited in United States v. Barnett, 376 U.S. 681, 694, n. 12, 84 S.Ct. 984, 991, 12 L.Ed.2d 23 (1964). And it matters not that the contempt arises indirectly from proceedings of an administrative agency. Cheff was found in contempt of the Court of Appeals, not of the Commission. The sole ground for the contempt proceedings is stated in the initial order served on Cheff and the other parties to show cause why they should not be adjudged in criminal contempt of that court, for violations of that court's pendente lite order. Indeed, Cheff's answer itself verified that he had not violated, disobeyed, and failed and refused to comply with 'an order of the United States Court of Appeals for the Seventh Circuit entered on August 5, 1959 * * *.' (Italics added.) In addition, the Court of Appeals itself was quite specific in limiting the contempt charges to 'cover the period from August 5, 1959 to the entry of the final judgment (in October 1961) by this court.' 341 F.2d, at 550. As the court clearly had the authority to enter its interlocutory order, Federal Trade Commission Act, § 5, 38 Stat. 719, as amended, 15 U.S.C. § 45(c) (1964 ed.), it follows that the court has the power to punish for contempt any disobedience of that order.
8
Cheff's next and chief contention is that criminal contempt proceedings are criminal actions falling within the requirements of Article III and the Sixth Amendment of the Constitution.* Only two Terms ago we held to the contrary in United States v. Barnett, supra; however, some members of the Court were of the view there that, without regard to the seriousness of the offense, punishment by summary trial without a jury would be constitutionally limited to that penalty provided for petty offenses. 376 U.S., at 694, n. 12, 84 S.Ct., at 991. Cheff, however, would have us hold that the right to jury trial attaches in all criminal contempts and not merely in those which are outside the category of 'petty offenses.'
9
Cheff's argument is unavailing, for we are constrained to view the proceedings here as equivalent to a procedure to prosecute a petty offense, which under our decisions does not require a jury trial. Over 75 years ago in Callan v. Wilson, 127 U.S. 540, 557, 8 S.Ct. 1301, 1307, 32 L.Ed. 223 (1888), this Court stated that 'in that class or grade of offences called 'petty offences,' which, according to the common law, may be proceeded against summarily in any tribunal legally constituted for that purpose,' a jury trial is not required. And as late as 1937 the Court reiterated in District of Columbia v. Clawans, 300 U.S. 617, 624, 57 S.Ct. 660, 661, 81 L.Ed. 843, that: 'It is settled by the decisions of this Court * * * that the right of trial by jury * * * does not extend to every criminal proceeding. At the time of the adoption of the Constitution there were numerous offenses, commonly described as 'petty,' which were tried summarily without a jury * * *.' See also Natal v. State of Louisiana, 139 U.S. 621, 11 S.Ct. 636, 35 L.Ed. 288 (1891); Lawton v. Steele, 152 U.S. 133, 141—142, 14 S.Ct. 499, 502—503, 38 L.Ed. 385 (1894); Schick v. United States, 195 U.S. 65, 68—72, 24 S.Ct. 826, 827—828, 49 L.Ed. 99 (1904); District of Columbia v. Colts, 282 U.S. 63, 72—73, 51 S.Ct. 52, 53, 75 L.Ed. 177 (1930). Indeed, Mr. Justice Goldberg, joined by The Chief Justice and Mr. Justice Douglas, took the position in his dissenting opinion in United States v. Barnett, supra, 376 U.S. at 751, 84 S.Ct. at 1018, that 'at the time of the Constitution all types of 'petty' offenses punishable by trivial penalties were generally triable without a jury. This history justifies the imposition without trial by jury of no more than trivial penalties for criminal contempts.'
10
According to 18 U.S.C. § 1 (1964 ed.), '(a)ny misdemeanor, the penalty for which does not exceed imprisonment for a period of six months' is a 'petty offense.' Since Cheff received a sentence of six months' imprisonment (see District of Columbia v. Clawans, supra, 300 U.S. at 627—628, 57 S.Ct. at 663—664), and since the nature of criminal contempt, an offense sui generis, does not, of itself, warrant treatment otherwise (cf. District of Columbia v. Colts, supra), Cheff's offense can be treated only as 'petty' in the eyes of the statute and our prior decisions. We conclude therefore that Cheff was properly convicted without a jury. At the same time, we recognize that by limiting our opinion to those cases where a sentence not exceeding six months is imposed we leave the federal courts at sea in instances involving greater sentences. Effective administration compels us to express a view on that point. Therefore, in the exercise of the Court's supervisory power and under the peculiar power of the federal courts to revise sentences in contempt cases, we rule further that sentences exceeding six months for criminal contempt may not be imposed by federal courts absent a jury trial or waiver thereof. Nothing we have said, however, restricts the power of a reviewing court, in appropriate circumstances, to revise sentences in contempt cases tried with or without juries.
11
The judgment in this case is affirmed.
12
Affirmed.
13
Mr. Justice STEWART, joining Part I of Mr. Justice HARLAN'S separate opinion, concurs in the result.
14
Mr. Justice WHITE took no part in the decision of this case.
15
Mr. Justice HARLAN, concurring in the result in No. 67 and dissenting in Nos. 412 and 442.
16
By the opinions in these cases, two new limitations on the use of the federal contempt power are inaugurated. In Cheff, it is announced that prison sentences for criminal contempt in a federal court must be limited to six months unless the defendant is afforded a trial by jury. In Shillitani and Pappadio, an automatic 'purge' clause and related indicia are found to convert a criminal sentence into a civil sanction which cannot survive the grand jury's expiration. I believe these limitations are erroneous in reasoning and result alike.
I.
17
The decision to extend the right to jury trial to criminal contempts ending in sentences greater than six months is the product of the views of four Justices who rest that conclusion on the Court's supervisory power and those of two others who believe that jury trials are constitutionally required in all but 'petty' criminal contempts. The four Justices who rely on the supervisory power also find the constitutional question a 'difficult' one. Ante, at 1533. However, as recently as 1958, this Court in Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672 unequivocally declared that the prosecution of criminal contempts was not subject to the grand and petit jury requirements of Art. III, § 2, of the Constitution and the Fifth and Sixth Amendments. This doctrine, which was accepted by federal judges in the early days of the Republic1 and has been steadfastly adhered to in case after case in this Court,2 should be recognized now as a definitive answer to petitioners' constitutional claims in each of the cases before us.
18
The prevailing opinion's new supervisory-power rule seems to me equally infirm. The few sentences devoted to this dictum give no reason why a six-month limitation is desirable. Nor is there anything about the sentences actually imposed in these instances that warrants reappraisal of the present practice in contempt sentencing. In Cheff itself the sentence was for six months. Shillitani and pappadio involved two-year sentences but each was moderated by a purge clause and seemingly in neither case were there disputed facts suitable for a jury. Among the prominent shortcomings of the new rule, which are simply disregarded, is the difficulty it may generate for federal courts seeking to implement locally unpopular decrees. Another problem is in administration: to decide whether to proffer a jury trial, the judge must now look ahead to the sentence, which itself depends on the precise facts the trial is to reveal.
19
In my view, before this Court improvises a rule necessarily based on pure policy that largely shrugs off history, a far more persuasive showing can properly be expected.
II.
20
No less remarkable is the Court's upsetting of the sentences in Shillitani and Pappadio on the ground that the jailings were really for civil contempt which cannot endure beyond the grand jury's term.3 It can hardly be suggested that the lower courts did not intend to invoke the criminal contempt power to keep the petitioners in jail after the grand jury expired; the contrary is demonstrated by the entire record.4 Instead, the Court attempts to characterize the proceedings by a supposed primary or essential 'purpose' and then lops off so much of the sentences as do not conform to that purpose. What the Court fails to do is to give any reason in policy, precedent, statute law, or the Constitution for its unspoken premise that a sentencing judge cannot combine two purposes into a single sentence of the type here imposed.
21
Without arguing about which purpose was primary, obviously a fixed sentence with a purge clause can be said to embody elements of both criminal and civil contempt. However, so far as the safeguards of criminal contempt proceedings may be superior to civil, the petitioners have not been disadvantaged in this regard, nor do they claim otherwise. Adding a purge clause to a fixed sentence is a benefit for the petitioners, not a reason for complaint. Similarly the public interest is served by exerting strong pressure to obtain answers while tailoring the length of imprisonment so that it may punish the defendant only for his period of recalcitrance and no more. I see no reason why a fixed sentence with an automatic purge clause should be deemed impermissible.
22
For the foregoing reasons, I would affirm the judgments in all three cases on the basis of Green and leave the authority of that case unimpaired.5
23
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
I.
24
I adhere to the view expressed in the dissents in Green v. United States, 356 U.S. 165, 193, 78 S.Ct. 632, 648, 2 L.Ed.2d 672, and United States v. Barnett, 376 U.S. 681, 724, 728, 84 S.Ct. 984, 1007, 12 L.Ed.2d 23, that criminal contempt is a 'crime' within the meaning of Art. III, § 2, of the Constitution and a 'criminal prosecution' within the meaning of the Sixth Amendment, both of which guarantee the right to trial by jury in such cases.1 Punishment for contempt was largely a minor affair at the time the Constitution was adopted, the lengthy penalties of the sort imposed today being a relatively recent innovation.2 I do not see how we can any longer tolerate an 'exception' to the historic guaranty of a trial by jury when men are sent to prison for contempt for periods of as long as four years.3 Nor do the consequences of a contempt conviction necessarily end with the completion of serving what may be a substantial sentence. Indeed the Government in other contexts regards a criminal contempt conviction as the equivalent of a conviction of other serious crimes.
25
Thus the Attorney General, in an advisory letter dated January 26, 1966, to Deputy Secretary of Defense Cyrus R. Vance, concluded that a conviction for criminal contempt could properly be applied to exclude an Army veteran from burial in Arlington National Cemetery. Exclusion was based on a regulation (30 Fed.Reg. 8996) which denies burial in a national cemetery to a person 'WHO IS CONVICTED IN A FEDERAL * * * COURt of a crime or crimes, tHe result of which is * * * a sentence to imprisonment for 5 years or more * * *.' (Emphasis added.) The Attorney General stated: 'Criminal contempt is regarded as a 'crime' for most purposes (citing cases), and no reason is apparent why, for purposes of the interment regulation, criminal contempt should be distinguished from any other infraction of law punishable by imprisonment.'
26
There is in my view no longer any warrant for regarding punishment for contempt as a minor matter, strictly between the court and the accused. 'We take a false and one-sided view of history when we ignore its dynamic aspects. The year books can teach us how a principle or a rule had its beginnings. They cannot teach us that what was the beginning shall also be the end.' Cardozo, The Growth of the Law 104—105 (1924).
II.
27
The prevailing opinion today suggests that a jury is required where the sentence imposed exceeds six months but not when it is less than that period. This distinction was first noted in a footnote in the Barnett case, where the Court drew an analogy to prosecutions for 'petty offenses' which need not be tried by jury.4 The prevailing opinion today seeks to buttress this distinction by reference to 18 U.S.C. § 1, which declares that an offense the penalty for which does not exceed six months is a petty offense. It studiously avoids embracing the view expressed by Mr. Justice HARLAN (384 U.S. at 380, 86 S.Ct. at 1537), that in no event does the Constitution require a jury trial for contempt. But I do not see any lines of constitutional dimension that separate contempt cases where the punishment is less than six months from those where the punishment exceeds that figure. That is a mechanical distinction—unsupported by our cases in either the contempt field or in the field of 'petty offenses.'
28
The difficulty with that analysis lies in attempting to define a petty offense merely by reference to the sentence actually imposed. This does not square with our decisions regarding the 'petty offense' exception to the jury trial requirement. First, the determination of whether an offense is 'petty' also requires an analysis of the nature of the offense itself; even though short sentences are fixed for a particular offense a jury trial will be constitutionally required if the offense is of a serious character. Second, to the extent that the penalty is relevant in this process of characterization, it is the maximum potential sentence, not the one actually imposed, which must be considered.
29
The notion that the trial of a petty offense could be conducted without a jury was first expounded by this Court in Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888).5 The Court, 'conceding that there is a class of petty or minor offences not usually embraced in public criminal statutes, and not of the class or grade triable at common law by a jury,' held that the offense charged—conspiracy—was not among them. Id., at 555, 8 S.Ct. at 1306. In Natal v. State of Louisiana, 139 U.S. 621, 11 S.Ct. 636, 35 L.Ed. 288, the Court for the first time held a particular offense 'petty.' This was a local ordinance which forbade the operation of a private market within six squares of a public market. The maximum penalty was a $25 fine (or 30 days' imprisonment in the event the fine was not paid).6 And in Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99, the Court held that the knowing purchase of unstamped oleomargarine was a petty offense. The maximum penalty was a $50 fine.
30
None of these cases provides much guidance for those seeking to locate the line of demarcation between petty offenses and those more serious transgressions for which a jury trial is required. In District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177, the Court attempted to set out some general considerations. The offense was reckless driving at an excessive speed; the maximum punishment under the statute (for a first offender) was a $100 fine and 30 days in jail. Although the penalty was light, the Court thought the offense too serious to be regarded as 'petty':
31
'Whether a given offense is to be classed as a crime, so as to require a jury trial, or as a petty offense, triable summarily without a jury, depends primarily upon the nature of the offense. The offense here charged is not merely malum prohibitum, but in its very nature is malum in se. It was an indictable offense at common law * * * when horses, instead of gasoline, constituted the motive power. * * *' Id., at 73, 51 S.Ct., at 53.
32
The most recent case is District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843, where the offense charged was that of engaging in a particular business without a license. The maximum penalty was $300 or 90 days in jail. Clawans was given a $300 fine but only 60 days in jail. The Court held that this was a 'petty offense' and thus that no jury was required. The offense, the Court noted, was not a crime at common law; and today it is only an infringement of local police regulations, the offense being 'relatively inoffensive.' Id., at 625, 57 S.Ct., at 662. But, the Court added, 'the severity of the penalty (is) an element to be considered.' Ibid. Looking to the maximum penalty which might be imposed—90 days in prison—the Court concluded that this was not so severe as to take the offense out of the category of 'petty.' Noting that in England, and even during this country's colonial period, sentences longer than 90 days were imposed without a jury trial, the Court assumed that penalties then thought mild 'may come to be regarded as so harsh as to call for the jury trial.' Id., at 627, 57 S.Ct., at 663. The Court added:
33
'(W)e may doubt whether summary trial with punishment of more than six months' imprisonment, prescribed by some pre-Revolutionary statutes, is admissible, without concluding that a penalty of ninety days is too much. Doubts must be resolved, not subjectively by recourse of the judge to his own sympathy and emotions, but by objective standards such as may be observed in the laws and practices of the community taken as a gauge of its social and ethical judgments.' Id., at 627—628, 57 S.Ct., at 663.
34
Resolution of the question of whether a particular offense is or is not 'petty' cannot be had by confining the inquiry to the length of sentence actually imposed. That is only one of many factors. As the analysis of the Court in Clawans demonstrates, the character of the offense itself must be considered. The relevance of the maximum possible sentence is that it may be 'taken as a gauge of (the) social and ethical judgments' of the community. Id., at 628, 57 S.Ct., at 663. Had the potential sentence in the Clawans case been of considerable length, the Court presumably would have concluded that the legislative judgment—that long sentences were appropriate for violations of the licensing law—precluded treating the offense as 'petty.' But the converse is not always true: an offense the penalty for which is relatively light is not necessarily 'petty,' as District of Columbia v. Colts, supra, demonstrates.
35
The principal inquiry, then, relates to the character and gravity of the offense itself. Was it an indictable offense at common law? Is it malum in se or malum prohibitum? What stigma attaches to those convicted of committing the offense?7 The Barnett dictum, though accepting the relevance of the petty offense cases, errs in assuming that these considerations are irrelevant.8
36
The dictum in Barnett errs, further, because it looks to the length of sentence actually imposed, rather than the potential sentence. The relevance of the sentence, as we have seen, is that it sheds light on the seriousness with which the community and the legislature regard the offense. Reference to the sentence actually imposed in a particular case cannot serve this purpose. It is presently impossible to refer to a 'maximum' sentence for most contempts, for there is none; Congress has left such matters to the discretion of the federal courts.9
37
The offense of criminal contempt is, of course, really several diverse offenses all bearing a common name. Some involve conduct that violates courtroom decorum. At times the offender has insulted the court from a distance. Others are instances where an adamant witness refuses to testify. Still others, like the present case, involve disobedience of a court order directing parties to cease and desist from certain conduct pending an appeal. While some contempts are fairly minor affairs, others are serious indeed, deserving lengthy sentences. So long as all contempts are lumped together, the serious nature of some contempts and the severity of the sentences commonly imposed in such cases control the legal character of all contempts. None can be regarded as petty. Distinctions between contempts which, after the fact, draw a six-month or greater sentence and those which do not are based on constitutionally irrelevant factors and seem irrelevant to the analysis.
III.
38
The Constitution, as I see it, thus requires a trial by jury for the crime of criminal contempt, as it does for all other crimes. Should Congress wish it, an exception could be made for any designated class of contempts which, all factors considered, could truly be characterized as 'petty.'10 Congress has not attempted to isolate and define 'petty contempts.' Do we have power to undertake the task of defining a class of petty contempts and to fix maximum punishments which might be imposed?
39
It would be a project more than faintly reminiscent of declaring 'common-law crimes,' a power which has been denied the federal judiciary since the beginning of our republic. See United States v. Hudson, 7 Cranch 32, 3 L.Ed. 259; United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 410, 61 L.Ed. 857. It is, of course, true that in the Hudson case itself, the Court while holding the judiciary powerless to exercise a common-law criminal jurisdiction—set contempt apart from this general restriction:
40
'Certain implied powers must necessarily result to our Courts of justice from the nature of their institution. But jurisdiction of crimes against the state is not among those powers. To fine for contempt—imprison for contumacy—inforce the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others: and so far our Courts no doubt possess powers not immediately derived from statute; but all exercise of criminal jurisdiction in common law cases we are of opinion is not within their implied powers.' Id., at 34.11
41
The prevailing opinion today does not take that course. It does not undertake to classify different kinds of contempt in light of the nature and gravity of the offense. It permits the imposition of punishment without the benefit of a trial by jury in all contempt cases where the punishment does not exceed six months. For the reasons stated, I believe that course is wrong dangerously wrong. Until the time when petty criminal contempts are properly defined and isolated from other species of contempts, I see no escape from the conclusion that punishment for all manner of criminal contempts can constitutionally be imposed only after a trial by jury.
*
The relevant portions of these provisions declare:
'The trial of all Crimes, except in Cases of Impeachment, shall be by Jury * * *.' Art. III, § 2.
'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * *.' Sixth Amendment.
1
E.g., Ex parte Burr, 4 Fed.Cas. 791, 797 (No. 2,186) (C.C.D.C.1823) (Cranch, C.J.):
'(C)ases of contempt of court have never been considered as crimes within the meaning and intention of the second section of the third article of the constitution of the United States; nor have attachments for contempt ever been considered as criminal prosecutions within the sixth amendment. * * * Many members of the (constitutional) convention were members of the first congress, and it cannot be believed that they would have silently acquiesced in so palpable a violation of the then recent constitution, as would have been contained in the seventeenth section of the judiciary act of 1789 (1 Stat. 73),—which authorizes all the courts of the United States 'to punish by fine and imprisonment, at the discretion of the said courts, all contempts of authority in any cause or hearing before the same,'—if their construction of the constitution had been that which has, in this case, been contended for at the bar.'
2
See Ex parte Terry, 128 U.S. 289, 313, 9 S.Ct. 77, 82, 32 L.Ed. 405 (1888) (Harlan, J.); Savin, Petitioner, 131 U.S. 267, 278, 9 S.Ct. 699, 702, 33 L.Ed. 150 (1889) (Harlan, J.); Eilenbecker v. Plymouth County, 134 U.S. 31, 36, 10 S.Ct. 424, 426, 33 L.Ed. 801 (1890) (Miller, J.); Interstate Commerce Comm'n v. Brimson, 154 U.S. 447, 489, 14 S.Ct. 1125, 1137, 38 L.Ed. 1047 (1894) (Harlan, J.); Bessette v. W. B. Conkey Co., 194 U.S. 324, 336—337, 24 S.Ct. 665, 670, 48 L.Ed. 997 (1904) (Brewer, J.); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450, 31 S.Ct. 492, 501, 55 L.Ed. 797 (1911) (Lamar, J.); Gompers v. United States, 233 U.S. 604, 610—611, 34 S.Ct. 693, 695, 58 L.Ed. 1115 (1914) (Holmes, J.); Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 339, 63 L.Ed. 656 (1919) (White, C.J.); Myers v. United States, 264 U.S. 95, 104—105, 44 S.Ct. 272, 273, 68 L.Ed. 577 (1924) (McReynolds, J.); Michaelson v. United States, 266 U.S. 42, 67, 45 S.Ct. 18, 20, 69 L.Ed. 162 (1924) (Sutherland, J.); Ex parte Grossman, 267 U.S. 87, 117—118, 45 S.Ct. 332, 335—336, 69 L.Ed. 527 (1925) (Taft, C.J.); Fisher v. Pace, 336 U.S. 155, 159 160, 69 S.Ct. 425, 427, 93 L.Ed. 569 (1949) (Reed, J.); Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954) (Frankfurter, J.).
3
This question was never raised in Pappadio nor encompassed by the limited grant of certiorari in that case, see 382 U.S. 916, 86 S.Ct. 287, 15 L.Ed.2d 231, in Shillitani, where the issue is properly before the Court, petitioner, filed a certiorari petition discussing the point but tendered no brief on the merits on any phase of the case.
4
For example, in each case the Judgment and Commitment states that 'the defendant is guilty of criminal contempt' and orders him committed 'for a period of Two (2) Years, or until further order of this Court,' should the questions be answered within that period before the grand jury expires.
5
The two-year sentences imposed on Shillitani and Pappadio do not call for the exercise of this Court's corrective power over contempt
1
Although the Sixth Amendment uses somewhat different language than that of Art. III, § 2, there is no reason to believe that the Sixth Amendment was intended to work a change in the scope of the jury trial requirement of Article III. See Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv.L.Rev. 917, 968 975 (1926).
2
Green v. United States, supra, 356 U.S. at 207—208 and n. 21, 78 S.Ct. at 655—656 (dissenting opinion); United States v. Barnett, supra, 376 U.S. at 740—749, 84 S.Ct. at 1012—1018 (dissenting opinion). Although Justice Goldberg's use of historical materials in Barnett has been subjected to some criticism (see, e.g., Tefft, United States v. Barnett: "Twas a Famous Victory,' Supreme Court Review 123, 132—133 (1964); Brief for the United States 27—58 and Appendix, passim, Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240), severe penalties in contempt cases in the early days appear, nonetheless, to have been the exception.
3
See, e.g., Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609 (15 months); Piemonte v. United States, 367 U.S. 556, 81 S.Ct. 1720, 6 L.Ed.2d 1028 (18 months); Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249 (two years); Green v. United States, supra (three years); Collins v. United States, 9 Cir., 269 F.2d 745 (three years); United States v. Thompson, 2 Cir., 214 F.2d 545 (four years).
In the fiscal year ending June 30, 1962, a total of 21 people convicted by a federal court of contempt were received by the federal prison system. Of these, the average sentence was 6.4 months. Sentences of eight of these prisoners exceeded six months; three prisoners had sentences exceeding one year, and of these two prisoners had sentences of two years or more. The Federal Prison System.—1964, Hearing before the Subcommittee on National Penitentiaries of the Senate Committee on the Judiciary, 88th Cong., 2d Sess. (Jan. 22, 1964), p. 10.
4
The Court put the matter thus:
'However, our cases have indicated that, irrespective of the severity of the offense, the severity of the penalty imposed, a matter not raised in this certification, might entitle a defendant to the benefit of a jury trial. * * * In view of the impending contempt hearing, effective administration of justice requires that this dictum be added: Some members of the Court are of the view that, without regard to the seriousness of the offense, punishment by summary trial without a jury would be constitutionally limited to that penalty provided for petty offenses.' 376 U.S., at 695, n. 12, 84 S.Ct., at 992.
5
The petty offense exception is treated in Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv.L.Rev. 917 (1926). Their conclusion, long accepted in the decisions of this Court, that jury trials are not required in such cases is challenged in Kaye, Petty Offenders Have No Peers, 26 Chi.L.Rev. 245 (1959).
6
This was, of course, not a case tried in the federal courts. But the Court did not decide the case on the ground that the Constitution does not require the States to afford jury trials in criminal cases; it took, instead, the narrower ground that this was a petty offense.
7
'Broadly speaking, acts were dealt with summarily which did not offend too deeply the moral purposes of the community, which were not too close to society's danger, and were stigmatized by punishment relatively light.' Frankfurter & Corcoran, supra, at 980—981.
8
'Some members of the Court are of the view that, without regard to the seriousness of the offense, punishment by summary trial without a jury would be constitutionally limited to that penalty provided for petty offenses.' 376 U.S., at 695, 84 S.Ct., at 992. (Emphasis added.) To the extent that this merely reflects the Clawans principle that no offense which carries a substantial penalty can be 'petty,' the Court was correct. Yet, quite apart from the question of punishment, a jury trial is constitutionally required where the offense is of a serious character.
9
18 U.S.C. § 402 (1964 ed.).
10
Congress might, for example, determine that breaches of court decorum are generally of so minor a nature as to render it advisable to forgo the possibility of any except minor penalties in favor of maintaining procedures for quick punishment (see Fed.Rule Crim.Proc. 42(a); Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240) which are said to be necessary 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. This might be a class of 'petty contempts' for which the maximum penalty would be slight and for which trial by jury would not be required. Quaere, whether imposition of a prison term would ever be consistent with a 'petty' offense. Cf. Kaye, Petty Offenders Have No Peers, 26 Chi.L.Rev. 245, 275—277 (1959).
11
And see 18 U.S.C. § 402, which allows 'all other cases of contempt not specifically embraced in this section (to be) punished in conformity to the prevailing usages at law.'
| 01
|
384 U.S. 323
86 S.Ct. 1561
16 L.Ed.2d 593
UNITED STATES, Petitioner,v.The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES.
No. 645.
Argued April 21, 1966.
Decided June 6, 1966.
Robert S. Rifkind, New York City, for petitioner.
Frank W. Hoak, Newark, N.J., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
This writ involves the recurring problem of priority contests between a state lien and a federal tax lien under §§ 6321 and 6322 of the Internal Revenue Code of 1954, 26 U.S.C. §§ 6321, 6322 (1964 ed.). Since 1950—United States v. Security Trust & Savings Bank, 340 U.S. 47, 71 S.Ct. 111, 95 L.Ed. 53—we have passed upon more than a dozen cases involving some facet of the problem. In the present case the law of New Jersey provides for the allowance in a foreclosure action of an attorney's fee fixed by statute as a certain percentage of the amount adjudged to be paid the mortgagee and taxed as costs in the action. The question presented is whether a federal tax lien is entitled to priority over the mortgagee's claim for such an attorney's fee, where notice of the tax lien is recorded prior to default by the mortgagor. The state trial court held that the federal tax lien was superior, New Jersey's highest court reversed, 45 N.J. 206, 212 A.2d 25, and we granted certiorari, 382 U.S. 972, 86 S.Ct. 540, 15 L.Ed.2d 464. Only three Terms ago, Mr. Justice White writing for the Court, disposed of an almost identical question, i.e., whether 'a reasonable attorney's fee' provided for in a mortgage note 'in the event of default * * * and of the placing of this note in the hands of an attorney for collection, or this note is collected through any court proceedings' created a lien superior to that of a federal tax lien recorded after suit on the note was filed but prior to the actual fixing of the amount of the attorney's fees. United States v. Pioneer American Insurance Co., 374 U.S. 84, 83 S.Ct. 1651, 10 L.Ed.2d 770 (1963). We there held the federal lien superior. We hold similarly here, and reverse.
I.
2
Albert Bagin and his wife executed to Equitable Life a first mortgage on certain real property in New Jersey. This mortgage, which secured an indebtedness of $30,000, was recorded on December 19, 1960. The Bagins executed two other mortgages covering the property—a second mortgage which was also recorded on December 19, 1960, and a third, recorded on May 18, 1961. On March 21, 1962, the United States filed a tax lien for $7,748.91 against Mr. Bagin. This lien, which was for unpaid withholding taxes, arose under 26 U.S.C. §§ 6321, 6322, and was recorded in accordance with 26 U.S.C. § 6323 (1964 ed.).1 Somewhat less than a year later, the Bagins defaulted on the first mortgage and Equitable Life brought this foreclosure action. Equitable claimed the principal and interest due under the mortgage, as well as an attorney's fee as authorized by New Jersey statute.2 The second mortgagee admitted the superiority of Equitable Life's priority and demanded that the second mortgage be reported upon. Both the Bagins and the third mortgagees suffered default and their interests are not before us. The United States conceded the priority of the claims under the first two mortgages exclusive, however, of the attorney's fee, which it contended was inferior to the federal lien. The trial court rendered summary judgment fixing the sums due the respective parties and, viewing the priority question controlled by United States v. Pioneer American Insurance Co., supra, subordinated the claim for attorney's fee to the federal tax lien. Without awaiting a sale of the property, respondent appealed to the Superior Court, Appellate Division, which certified the appeal to the Supreme Court of New Jersey. The Supreme Court ordered the property sold, and, after the sale, held that the statutory attorney's fee was superior to the federal lien.
II.
3
In United States v. City of New Britain, Conn., 347 U.S. 81, 74 S.Ct. 367, 98 L.Ed. 520 (1954), a leading case in this field, we held that where a debtor is insolvent the 'Congress has protected the federal revenues by imposing an absolute priority' of the federal lien by virtue of § 3466 of the Revised Statutes (1874), now 31 U.S.C. § 191 (1964 ed.), and that where the debtor is solvent the 'United States is free to pursue the whole of the debtor's property wherever situated' under 26 U.S.C. §§ 6321, 6322. Id., at 85, 74 S.Ct. at 370. The record here is silent on the solvency of the debtors, but as the priority issue below centered on §§ 6321—6323 we may safely assume they are solvent. As against a record federal tax lien, the relative priority of a state lien is determined by the rule 'first in time is the first in right,' which in turn hinges upon whether, on the date the federal lien was recorded, the state lien was 'specific and perfected.' A state lien is specific and perfected when 'there is nothing more to be done * * *—when the identity of the lienor, the property, subject to the lien, and the amount of the lien are established.' 'Thus, the priority of each statutory lien * * * must depend on the time it attached to the property in question and became choate.' United States v. City of New Britain, supra. These determinations are of course federal questions. United States v. Waddill Holland & Flinn, Inc., 323 U.S. 353, 356—357, 65 S.Ct. 304, 306, 89 L.Ed. 294 (1945).
4
Pioneer American, supra, dealt with these identical problems and we therefore turn to its teachings. There, 'the claim for the attorney's fee * * * became enforceable under Arkansas law as a contract of indemnity at the time of default * * * before the filing of the first federal tax liens.' The suit in which the attorney's fee was earned was filed prior to the recording of the federal liens. 'Nevertheless, because this fee had not been incurred and paid and could not be finally fixed in amount until * * * after all the federal liens had been filed,' we held that the fees were 'inchoate at least until that date and that the federal tax liens are entitled to priority.' 374 U.S. at 87, 83 S.Ct., at 1654. As we said there, the attorney's fee was 'undetermined and indefinite' at the time the federal lien was recorded; nor had the fee been 'reduced to a liquidated amount.' Moreover, there was no 'showing in this record that the mortgagee had become obligated to pay and had paid any sum of money for services performed prior to the filing of the federal tax lien.' Thus, the mortgagee's claim was not only 'uncertain in amount' but 'yet to be incurred and paid.' Id., at 90—91, 83 S.Ct. at 1656—1657.
5
Equitable's lien is even more clearly inchoate. At the time the federal lien was recorded Equitable's mortgage was not even in default—no reference whatever had been made to attorneys, no suit had been filed, nor had any sums been 'adjudged to be paid.' New Jersey's Rule 4:55—7(c), supra, n. 2, which fixes the lien had not even been invoked much less applied to establish the amount of the lien. The claim was wholly contingent at the time the federal lien matured. Cast against the setting of Pioneer American, the inchoate character of the state-created lien here stands out even more starkly.
6
New Jersey's Supreme Court relied on the preciseness—the fixed percentages—of Rule 4:55—7(c), and applied the principle of Security Mortgage Co. v. Powers, 278 U.S. 149, 49 S.Ct. 84, 73 L.Ed. 236 (1928). It found Pioneer American inapposite. We cannot agree. Security did not involve a federal tax lien but raised 'federal questions peculiar to the law of bankruptcy.' 278 U.S., at 154, 49 S.Ct. at 86. Our opinion in Pioneer American specifically pointed out that Security had no application to federal tax lien cased because the issue there was the status of an attorney's fee clause in a bankruptcy proceeding 'where the rigorous federal lien choateness test was not necessarily applicable.' 374 U.S., at 90, n. 8, 83 S.Ct. at 1656. We likewise find that Security has no bearing on the issue presently before us. As we noted earlier, at the time the federal lien matured here no sum of money due on the mortgage had been 'adjudged.' Adjudication alone triggers the mathematical machinery of Rule 4:55—7(c) whereby liability for the attorney's fee is fixed. No liability having been incurred there could of course be no lien in existence at the time the federal lien matured. In short, the fixed fee of the statute had not been brought into play.
III.
7
Equitable Life's remaining contentions are also untenable. It argues that, since the United States concedes the priority of the mortgages here, the attorney's fee is likewise superior, for it must stand on no less equal footing as principal and interest under a mortgage—neither of which is ascertainable until foreclosure. This identical contention was raised and implicitly rejected in Pioneer American. There is nothing in the legislative history of § 6323 indicating that in protecting mortgagees from secret, government tax liens, Congress intended to include all ancillary interests which a State may afford its mortgagees. See H.R.Rep. No. 1018, 62d Cong., 2d Sess. (1912). See also H.R.Rep. No. 1337, 83d Cong., 2d Sess. (1954); U.S. Code Congressional and Administrative News 1954, p. 4025; S.Rep. No. 1622, 83d Cong., 2d Sess. (1954).
8
Nor does the fact that New Jersey's statutory scheme taxes the attorney's fee as costs in the foreclosure proceeding affect the standing of a competing federal lien. To repeat, the relative priority of a United States lien for unpaid taxes is a federal question. United States v. Acri, 348 U.S. 211, 213, 75 S.Ct. 239, 241, 99 L.Ed. 264 (1955). The label given the attorney's fee by the State does not bind this Court. As we said in United States v. Buffalo Savings Bank, 371 U.S. 228, 229, 83 S.Ct. 314, 315, 9 L.Ed.2d 283 (1963), 'the state may not avoid the priority rules of the federal tax lien by the formalistic device of characterizing subsequently accruing local liens as expenses of sale.' Likewise in Pioneer American, the State was not permitted to upgrade its lien by the formalistic device of 'indemnity.' Even where authorized by state statute3 the distinction between costs and allowances for attorneys' fees is well recognized. In People of Sioux County, Neb. v. National Surety Co., 276 U.S. 238, 48 S.Ct. 239, 72 L.Ed. 547 (1928), the Court specifically noted this distinction in highly cogent terms: 'That the statute directs the allowance (for an attorney's fee) * * * to be added to the judgment as costs are added does not make it costs in the ordinary sense of the traditional, arbitrary and small fees of court officers, attorneys' docket fees and the like * * *.' At 243—244, 48 S.Ct. at 241.4 Moreover, the mortgagee by foreclosing does not produce a fund from which the United States benefits, without expenditure on its part. A foreclosure is more akin to a liquidation of assets than to the creation, enhancement or protection of a common fund from which equity permits reimbursement of costs of litigation.5 Finally, it would be contrary to the federal policy of uniformity in the federal tax laws to permit the relative priority of federal tax liens to 'be determined by the diverse rules of the various States.' United States v. Speers, 382 U.S. 266, 270, 86 S.Ct. 411, 414, 15 L.Ed.2d 314 (1965). See also United States v. Gilbert Associates, 345 U.S. 361, 364, 73 S.Ct. 701, 703, 97 L.Ed. 1071 (1953). While we believe that the established practice of awarding costs in the ordinary sense fairly renders those items an incident of the rights of those protected under § 6323, we see no warrant either in the intent of § 6323 or the practices prevailing among the States at the time of its enactment to treat attorneys' fees as a right entitled to priority over a federal tax lien.
9
We hold that the federal tax lien is entitled to priority over the claim for the attorney's fee under Rule 4:55—7(c). We intimate no view as to the disposition the state court may wish to make of the fund set aside for the principal, interest, and costs, exclusive of attorney's fee. That is a matter of state law. United States v. City of New Britain, supra, 347 U.S. at 88, 74 S.Ct. at 371.
10
Reversed and remanded.
11
Mr. Justice DOUGLAS dissents.
1
These provisions state:
26 U.S.C. § 6321. LIEN FOR TAXES.
'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. PERIOD OF LIEN.
'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.'
26 U.S.C. § 6323. VALIDITY AGAINST MORTGAGEES, PLEDGEES, PURCHASERS, AND JUDGMENT CREDITORS.
'(a) Invalidity of lien without notice.—
'Except as otherwise provided in subsections (c) and (d), the 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 of his delegate—
'(1) Under State or territorial laws.—
'In the office designated by the law of the State or Territory in which the property subject to the lien is situated, whenever the State or Territory has by law designated an office within the State or Territory for the filing of such notice; or
'(2) With clerk of district court.—
'In the office of the clerk of the United States district court for the judicial district in which the property subject to the lien is situated, whenever the State or Territory has not by law designated an office within the State or Territory for the filing of such notice; * * *
'(b) Form of notice.—
'If the notice filed pursuant to subsection (a)(1) is in such form as would be valid if filed with the clerk of the United States district court pursuant to subsection (a)(2), such notice shall be valid notwithstanding any law of the State or Territory regarding the form or content of a notice of lien.'
2
Rules Governing the New Jersey Courts (1965 ed.):
'4:55—7. Counsel Fees
'No fee for legal services shall be allowed in the taxed costs or otherwise, except:
'(c) In an action for the foreclosure of a mortgage. The allowance shall be calculated as follows: on all sums adjudged to be paid the plaintiff in such an action, amounting to $5,000 or less, at the rate of 3%, provided, however, that in any action a minimum fee of $75 shall be allowed; upon the excess over $5,000 and up to $10,000 at the rate of 1 1/2%; and upon the excess over $10,000 at the rate of 1%.'
3
Besides New Jersey, only three States provide explicitly for an allowance, as costs, for attorneys' fees in foreclosure actions. Iowa Code Ann. § 625.22; Mont.Rev.Codes Ann. § 93—8613; Okla.Stat.Ann. Tit. 46, § 56. Several others provide for the enforcement of contractually created claims for attorneys' fees in such actions, as in Pioneer American. See, e.g., Conn.Gen.Stat.Rev. § 49—7; Vt.Stat.Ann. Tit. 12, § 4527.
4
Indeed, the Supreme Court of New Jersey has itself recognized this same distinction. In United States Pipe & Foundry Co. v. United Steelworkers of America, 37 N.J. 343, 355—356, 181 A.2d 353, 359 (1962), that court stated that costs generally 'comprise principally certain statutory allowance, amounts paid the clerk in fees, and various other specified disbursements of counsel including sheriff's fees, witness fees, deposition expenses and printing costs. * * * Counsel fees, although if allowable are included in the taxed costs, are an entirely different matter.' (Emphasis added.)
5
In the latter case, courts proceeding under statutory or inherent equitable powers have traditionally awarded attorneys' fees. Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1882); Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). See McCormick, Damages § 62 (1935). In Pioneer American, we stated: 'The attorney's services * * * were rendered for the benefit of the mortgagee to protect his interest in the property, and the United States, holding an adverse interest, received no such benefit from them that its interest is to be charged therefor.' 374 U.S., at 92, n. 13, 83 S.Ct., at 1657.
| 1112
|
384 U.S. 424
86 S.Ct. 1539
16 L.Ed.2d 662
UNITED STATES, Petitioner,v.ANTHONY GRACE & SONS, INC.
No. 439.
Argued March 23, 1966.
Decided June 6, 1966.
Louis F. Claiborne, Washington, D.C., for petitioner.
David Fromson, Garden City, N.Y., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
In United States v. Carlo Bianchi & Co., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652, we held that, aside from questions of fraud, a reviewing courts is limited to the administrative record made below in determining the finality to be given departmental decisions and findings made by a Board of Contract Appeals pursuant to a standard government disputes clause. In the present case we are called upon to decide whether the reviewing court or the Board of Contract Appeals should make the original record on an issue which the Board did not resolve because it erroneously dismissed the appeal before it as untimely.
2
The question is framed by the following facts. The Department of the Air Force issued an invitation for bids for the construction of a military housing project at Topsham Air Force Station, Maine. The invitation included a tentative minimum wage schedule which the contractor would have to meet. It also advised that the wage schedule would be finally redetermined by the Secretary of Labor not more than 90 days prior to the commencement of construction and that the Federal Housing Commissioner would then adjust the contract price to reflect any changes made in the wage schedules.1 In addition, the successful bidder was required to complete certain preparatory acts in order to close the contract and to post a $25,000 deposit to ensure the closing of the contract. Respondent, Anthony Grace & Sons, Inc., was the low acceptable bidder and a letter of acceptability was sent to it. That letter reminded respondent that failure to close the contract within a specified number of days was sufficient justification to warrant the Department of the Air Force in cancelling the bid and letter of acceptability, in retaining the deposit for liquidated damages and in determining additional liability for actual damages. A disputes clause in the letter of acceptability made such decision by the Department of the Air Force final unless, within 30 days from the receipt of the decision, respondent appealed to the Armed Services Board of Contract. Appeals, whose decision would be final and conclusive unless fraudulent or capricious or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence.2 After receiving subsequent wage schedules from the Secretary of Labor, respondent concluded that certain work was being placed in higher wage categories than was provided in the specifications which accompanied the bid invitation. On the basis of this alleged deviation from the original specifications respondent asked first the Housing Commissioner and then the Department of the Air Force to raise the contract price. These requests were refused and respondent then notified the Air Force that it would be unable to complete the closing until this matter was cleared up. In the ensuing exchange of letters, the contracting officer informed respondent that its bid and the letter of acceptability were being canceled and its deposit was being retained. Pursuant to the disputes clause, respondent appealed this decision to the Armed Services Board of Contract Appeals, which dismissed the appeal as out of time without considering the merits of the case. Respondent then sued in the Court of Claims to recover its deposit and for damages resulting from the Government's alleged wrongful cancellation. That court concluded that the appeal to the Board was timely and that the Board had erred in not reaching the merits of the case. With Judges Davis and Laramore dissenting, the court then decided to remand the case to its own trial commissioner, rather than to the Board of Contract Appeals, to make a record and consider the case on its marits. The Government asked us to grant certiorari to consider whether this was in violation of the principles announced in the Wunderlich Act3 and United States v. Carlo Bianchi & Co., supra. We granted certiorari, 382 U.S. 901, 86 S.Ct. 234, 15 L.Ed.2d 154, and we now reverse.
3
This question was anticipated in Bianchi, supra, where we considered what a reviewing court should do when the administrative record is defective, or inadequate or reveals the commission of a prejudicial error. Two suggestions were given:
4
'First, there would undoubtedly be situations in which the court would be warranted, on the basis of the administrative record, in granting judgment for the contractor without the need for further administrative action. Second, in situations where the court believed that the existing record did not warrant such a course, but that the departmental determination could not be sustained under the standards laid down by Congress, we see no reason why the court could not stay its own proceedings pending some further action before the agency involved. Cf. Pennsylvania R. Co. v. United States, 363 U.S. 202, 80 S.Ct. 1131, 4 L.Ed.2d 1165. Such a stay would certainly be justified where the department had failed to make adequate provision for a record that could be subjected to judicial scrutiny, for it was clearly part of the legislative purpose to achieve uniformity in this respect.' 373 U.S. 709, 717—718, 83 S.Ct. 1409, 1415, 10 L.Ed.2d 652.
5
The policy reflected in this language, which requires utilization of the administrative procedures contractually bargained for was clearly intended by Congress, see H.R.Rep.No.1380, 83d Cong., 2d Sess. (1954), U.S.Code Congressional and Administrative News 1954, p. 2191; United States v. Carlo Bianchi & Co., supra, at 715—718, 83 S.Ct. at 1413—1415; and it has been consistently reflected in a long line of decisions by this Court. See United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113; United States v. Moorman, 338 U.S. 457, 70 S.Ct. 288, 94 L.Ed. 256; United States v. Joseph A. Holpuch Co., 328 U.S. 234, 66 S.Ct. 1000, 90 L.Ed. 1192; United States v. Blair, 321 U.S. 730, 64 S.Ct. 820, 88 L.Ed. 1039; United States v. Callahan Walker Construction Co., 317 U.S. 56, 63 S.Ct. 113, 87 L.Ed. 49; Kihlberg v. United States, 97 U.S. 398, 24 L.Ed. 1106. Pre-eminently, this policy is grounded on a respect for the parties' rights to contract and to provide for their own remedies. See United States v. Utah Construction & Mining Co., 383 U.S. 394, 86 S.Ct. 1545; United States v. Moorman, supra, 338 U.S. at 461—462, 70 S.Ct. at 290—291. But, beyond that, there is also a belief that resort to administrative procedures is an expeditious way to settle disputes, conducive to speed and economy.4 United States v. Blair, supra, 321 U.S. at 735, 64 S.Ct. at 822. Such procedures also facilitate a department's supervisory control over contracting officers and perhaps enhance the possibility of harmonious agreement. Ibid. Further, reliance upon a few expert agencies to make the records and initially to pass on the merits of the claims properly presented to them will lead to greater uniformity in the important business of fairly interpreting government contracts.
6
There can be no doubt that the dispute here over the decision by the Department of the Air Force to cancel respondent's commitments under the bid and letter of acceptability and to retain the deposit is one which the parties contractually provided should be heard and decided by the administrative process. Barring some compelling policy reason to disregard this provision, the contractor should be held to its contractual agreement even at this stage in the litigation.
7
It is true that this Court has said on several occasions that the parties will not be required to exhaust the administrative procedure if it is shown by clear evidence that such procedure is 'inadequate or unavailable.' United States v. Joseph A. Holpuch Co., supra, 328 U.S. at 240, 66 S.Ct. at 1003; United States v. Blair, supra, 321 U.S. at 736—737, 64 S.Ct. at 823. It may be that the contracting officer, H. B. Zachry Co. v. United States, 344 F.2d 352, 170 Ct.Cl. 115, or the Board of Contract Appeals, Southeastern Oil Florida, Inc. v. United States, 115 F.Supp. 198, 127 Ct.Cl. 480, so clearly reveals an unwillingness to act and to comply with the administrative procedures in the contract that the contractor or supplier is justified in concluding that those procedures have thereby become 'unavailable.' Similarly, there may be occasions when the lack of authority of either the contracting officer or the administrative appeals board is so apparent that the contractor or supplier may justifiably conclude that further administrative relief is 'unavailable.'5 But these circumstances are clearly the exceptions rather than the rule and the inadequacy or unavailability of administrative relief must clearly appear before a party is permitted to circumvent his own contractual agreement. When the Board fails to reach and decide an issue because it disposes of the appeal on another ground—here the untimeliness of the appeal which the Court of Claims later rejects, there is no sound reason to presume that the Board will not promptly and fairly deal with the merits of the undecided issue if it is given the chance to do so.6
8
The Court of Claims in this case attempted to justify bypassing the Board of Contract Appeals because it felt the dispute could be resolved more speedily if its Trial Commissioner made the record and initially passed on the merits. The dissenting judges question the factual accuracy of the premises.7 Even if the premises were sound, however, this argument falls substantially short of establishing that the administrative route is inadequate or unavailable.8
9
Nor is it persuasive to say that the administrative remedy is inadequate in this case because the Board of Contract Appeals considers itself unable to review wage determinations by the Secretary of Labor or the corresponding bid adjustments by the Federal Housing Commissioner. The necessity of determining the validity of these determinations and adjustments is speculative at best. The issue involved here is whether the Department of the Air Force was justified in cancelling respondent's commitments, retaining its deposit and itemizing certain damages. This raises questions concerning the propriety of respondent's failure to press forward to close the contract regardless of an outstanding wage dispute. And this, in turn, requires an analysis of the original bid invitation and accompanying specifications, the custom and usage of the trade, and the subsequent conduct of both parties to this dispute. Obviously there are factual issues to be resolved and that task is initially for the Board, not the Court.9
10
Another argument advanced by the Court of Claims is that it lacks authority to remand the case and the Board may refuse to consider it again. At this stage of the proceedings this fear may be dismissed as a hypothetical one. There will be time enough later, if this fear ever materializes, to consider whether the reviewing court would then be authorized to make its own record. In this regard it should be noted that, in Bianchi, supra, we suggested one way of dealing with this problem:
11
'And in any case in which the department failed to remedy the particular substantive or procedural defect or inadequacy, the sanction of judgment for the contractor would always be available to the Court.' 373 U.S. 709, 718, 83 S.Ct. 1409, 1415.
12
See also Interstate Commerce Comm. v. Atlantic Coast Line R. Co., 383 U.S. 576, 601, 86 S.Ct. 1000, 1015.10
13
Reversed.
1
See the Davis-Becon Act, 46 Stat. 1494, as amended, 40 U.S.C. § 276a (1964 ed.). No provision was made in the bid invitation or letter of acceptability for review of the determinations of the Secretary of Labor or the Housing Commissioner. The Armed Services Board of Contract Appeals has held that in these circumstances it is without jurisdiction to review such determinations. Len Co. & Associates, 1962 B.C.A. 3498, 17,854 (ASBCA). This Court has indicated that, as to the wage standards set by the Scretary of Labor, there is no judicial review. United States v. Binghamton Construction Co., 347 U.S. 171, 177, 74 S.Ct. 438, 441, 98 L.Ed. 594.
2
This clause, which varies somewhat from the standard disputes clause, reads as follows:
'Failure to perform all obligations prior to the time prescribed for closing will be just cause for cancelling all commitments undertaken with you in connection with the housing project and for the recovery under your bid security of liquidated damages in the sum of $25,000, together with actual damages to the Department, such actual damages to be itemized and determined by the Contracting Officer, whose decision will be reduced to writing and furnished to you by mail or otherwise. Such decision shall be final and conclusive unless, within 30 days from the receipt thereof, you appeal in writing to the head of the Department or his duly authorized representative, and his decision shall, unless determined by a court of competent jurisdiction to have been fraudulent or capricious or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence, be final and conclusive. In connection with any appeal under this paragraph you will be afforded an opportunity to be heard and to offer evidence in support of your appeal.'
3
The Wunderlich Act, 68 Stat. 81, 41 U.S.C. §§ 321—322, provides:
'That no provision of any contract entered into by the United States, relating to the finality or conclusiveness of any decision of the head of any department or agency or his duly authorized representative or board in a dispute involving a question arising under such contract, shall be pleaded in any suit now filed or to be filed as limiting judicial review of any such decision to cases where fraud by such official or his said representative or board is alleged: Provided, however, That any such decision shall be final and conclusive unless the same is fraudulent (sic) or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.
'SEC. 2. No Government contract shall contain a provision making final on a question of law the decision of any administrative official, representative, or board.'
4
See Hearing before the Subcommittee for Special Investigations of the House Committee on Armed Services on H.R.Res. No. 67, Inquiry Into the Administration and Operation of the Armed Services Board of Contract Appeals, 85th Cong., 2d Sess., 794—795 (1958).
5
See United States v. Utah Construction & Mining Co., supra; C. J. Langenfelder & Son, Inc. v. United States, 341 F.2d 600, 169 Ct.Cl. 465.
6
We see no reason, in this regard, to distinguish between theories of liability not considered below and the issue of damages, which may not initially have been considered if the Board found no liability. If, because of the disposition of the case on appeal, any of these issues becomes important, the Board should be given an opportunity to consider them first. The rule we announce necessarily disapproves of such cases as Stein Bros. Mfg. Co. v. United States, 337 F.2d 861, 162 Ct.Cl. 802, and WPC Enterprises, Inc. v. United States, 323 F.2d 874, 163 Ct.Cl. 1, in which the Court of Claims retained the issue of damages after it reversed the Board's finding of no liability.
7
Brief for the Government, p. 20, n. 14, indicates that it may actually take longer for the Court for Claims to dispose of a case than it would for the boards.
8
To the extent that the Court of Claims may have been worried about duplicity of evidentiary hearings, see United States v. Carlo Bianchi, supra, 373 U.S. at 717, 83 S.Ct. at 1414, it partially answered itself in Morrison-Knudsen Co. v. United States, 345 F.2d 833, 170 Ct.Cl. 757, decided the same day. There the Court of Claims held that when the Board of Contract Appeals has jurisdiction to consider a certain issue and to award full relief and it makes a record on the factual matters underlying that issue, judicial review of those factual findings, for whatever purposes, shall be limited to the record made by the Board. We hold, in United States v. Utah Construction & Mining Co., supra, that factual findings made by a board pursuant to a claim properly before it, if they otherwise satisfy the standards of the Wunderlich Act, shall not be relitigated even in a court action for relief that is not available under the contract. Hence, there will be only one evidentiary hearing.
9
The Board below observed, 'The parties are in complete agreement that it was and is their mutual interpretation that in the event a timely appeal is taken thereunder the 'disputes paragraph' of the Letter of Acceptability confers jurisdiction on the Board to review a decision relating to cancellation of commitments, withholding of bid security, and itemization and determination of actual damages.' Both the Court of Claims and the Trial Commissioner observed that there were 'unresolved issues of fact' underlying the issues in this case. 345 F.2d 808, 810, 170 Ct.Cl. 688, 691.
10
There is analogy for the rule we announce today in other areas of administrative law. See, e.g., Securities and Exchange Comm. v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626, and Connecticut Light & Power Co. v. Federal Power Comm., 324 U.S. 515, 65 S.Ct. 749, 89 L.Ed. 1150, where this Court ordered the cases remanded to the agencies for further findings and consideration rather than itself curing the inadequacies of the records below. See generally, Davis, Administrative Law Treatise, §§ 16.01, 20.06 (1958). The same general rule also applies in the area of labor arbitration. In United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424, the arbitrator had failed to determine the amount of back pay to which reinstated employees would be entitled and this Court ordered the matter remanded to the arbitrator for resolution of this issue. The Court observed there that it was the arbitrator's determination 'which was bargained for.' Much the same thing can be said here, although of course the findings and conclusions of the Board of Contract Appeals do not have the same finality on review. See also International Association of Machinists v. Crown Cork and Seal Co., 3 Cir., 300 F.2d 127.
| 89
|
384 U.S. 333
86 S.Ct. 1507
16 L.Ed.2d 600
Samuel H. SHEPPARD, Petitioner,v.E. L. MAXWELL, Warden.
No. 490.
Argued Feb. 28, 1966.
Decided June 6, 1966.
F. Lee Bailey, Boston, Mass., for petitioner.
Bernard A. Berkman, Cleveland, Ohio, for American Civil Liberties Union, and others, as amici curiae.
William B. Saxbe, Columbus, Ohio, and John T. Corrigan, Cleveland, Ohio, for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
This federal habeas corpus application involves the question whether Sheppard was deprived of a fair trial in his state conviction for the second-degree murder of his wife because of the trial judge's failure to protect Sheppard sufficiently from the massive, pervasive and prejudicial publicity that attended his prosecution.1 The United States District Court held that he was not afforded a fair trial and granted the writ subject to the State's right to put Sheppard to trial again, 231 F.Supp. 37 (D.C.S.D.Ohio 1964). The Court of Appeals for the Sixth Circuit reversed by a divided vote, 346 F.2d 707 (1965). We granted certiorari, 382 U.S. 916, 86 S.Ct. 289, 15 L.Ed.2d 231 (1965). We have concluded that Sheppard did not receive a fair trial consistent with the Due Process Clause of the Fourteenth Amendment and, therefore, reverse the judgment.
I.
2
Marilyn Sheppard, petitioner's pregnant wife, was bludgeoned to death in the upstairs bedroom of their lakeshore home in Bay Village, Ohio, a suburb of Cleveland. On the day of the tragedy, July 4, 1954, Sheppard pieced together for several local officials the following story: He and his wife had entertained neighborhood friends, the Aherns, on the previous evening at their home. After dinner they watched television in the living room. Sheppard became drowsy and dozed off to sleep on a couch. Later, Marilyn partially awoke him saying that she was going to bed. The next thing he remembered was hearing his wife cry out in the early morning hours. He hurried upstairs and in the dim light from the hall saw a 'form' standing next to his wife's bed. As he struggled with the 'form' he was struck on the back of the neck and rendered unconscious. On regaining his senses he found himself on the floor next to his wife's bed. He rose, looked at her, took her pulse and 'felt that she was gone.' He then went to his son's room and found him unmolested. Hearing a noise he hurried downstairs. He saw a 'form' running out the door and pursued it to the lake shore. He grappled with it on the beach and again lost consciousness. Upon his recovery he was lying face down with the lower portion of his body in the water. He returned to his home, checked the pulse on his wife's neck, and 'determined or thought that she was gone.'2 He then went downstairs and called a neighbor, Mayor Houk of Bay Village. The Mayor and his wife came over at once, found Sheppard slumped in an easy chair downstairs and asked, 'What happened?' Sheppard replied: 'I don't know but somebody ought to try to do something for Marilyn.' Mrs. Houk immediately went up to the bedroom. The Mayor told Sheppard, 'Get hold of yourself. Can you tell me what happened?' Sheppard then related the above-outlined events. After Mrs. Houk discovered the body, the Mayor called the local police, Dr. Richard Sheppard, petitioner's brother, and the Aherns. The local police were the first to arrive. They in turn notified the Coroner and Cleveland police. Richard Sheppard then arrived, determined that Marilyn was dead, examined his brother's injuries, and removed him to the nearby clinic operated by the Sheppard family.3 When the Coroner, the Cleveland police and other officials arrived, the house and surrounding area were thoroughly searched, the rooms of the house were photographed, and many persons, including the Houks and the Aherns, were interrogated. The Sheppard home and premises were taken into 'protective custody' and remained so until after the trial.4
3
From the outset officials focused suspicion on Sheppard. After a search of the house and premises on the morning of the tragedy, Dr. Gerber, the Coroner, is reported—and it is undenied to have told his men, 'Well, it is evident the doctor did this, so let's go get the confession out of him.' He proceeded to interrogate and examine Sheppard while the latter was under sedation in his hospital room. On the same occasion, the Coroner was given the clothes Sheppard wore at the time of the tragedy together with the personal items in them. Later that afternoon Chief Eaton and two Cleveland police officers interrogated Sheppard at some length, confronting him with evidence and demanding explanations. Asked by Officer Shotke to take a lie detector test, Sheppard said he would if it were reliable. Shotke replied that it was 'infallible' and 'you might as well tell us all about it now.' At the end of the interrogation Shotke told Sheppard: 'I think you killed your wife.' Still later in the same afternoon a physician sent by the Coroner was permitted to make a detailed examination of Sheppard. Until the Coroner's inquest on July 22, at which time he was subpoenaed, Sheppard made himself available for frequent and extended questioning without the presence of an attorney.
4
On July 7, the day of Marilyn Sheppard's funeral, a newspaper story appeared in which Assistant County Attorney Mahon—later the chief prosecutor of Sheppard—sharply criticized the refusal of the Sheppard family to permit his immediate questioning. From there on headline stories repeatedly stressed Sheppard's lack of cooperation with the police and other officials. Under the headline 'Testify Now In Death, Bay Doctor Is Ordered,' one story described a visit by Coroner Gerber and four police officers to the hospital on July 8. When Sheppard insisted that his lawyer be present, the Coroner wrote out a subpoena and served it on him. Sheppard then agreed to submit to questioning without counsel and the subpoena was torn up. The officers questioned him for several hours. On July 9, Sheppard, at the request of the Coroner, re-enacted the tragedy at his home before the Coroner, police officers, and a group of newsmen, who apparently were invited by the Coroner. The home was locked so that Sheppard was obliged to wait outside until the Coroner arrived. Sheppard's performance was reported in detail by the news media along with photographs. The newspapers also played up Sheppard's refusal to take a lie detector test and 'the protective ring' thrown up by his family. Front-page newspaper headlines announced on the same day that 'Doctor Balks At Lie Test; Retells Story.' A column opposite that story contained an 'exclusive' interview with Sheppard headlined: "Loved My Wife, She Loved Mr,' Sheppard Tells News Reporter.' The next day, another headline story disclosed that Sheppard had 'again late yesterday refused to take a lie detector test' and quoted an Assistant County Attorney as saying that 'at the end of a nin-hour questioning of Dr. Sheppard, I felt he was now ruling (a test) out completely.' But subsequent newspaper articles reported that the Coroner was still pushing Sheppard for a lie detector test. More stories appeared when Sheppard would not allow authorities to inject him with 'truth serum.'5
5
On the 20th, the 'editorial artillery' opened fire with a front-page charge that somebody is 'getting away with murder.' The editorial attributed the ineptness of the investigation to 'friendships, relationships, hired lawyers, a husband who ought to have been subjected instantly to the same third-degree to which any other person under similar circumstances is subjected * * *.' The following day, July 21, another page-one editorial was headed: 'Why No Inquest? Do It Now, Dr. Gerber.' The Coroner called an inquest the same day and subpoenaed Sheppard. It was staged the next day in a school gymnasium; the Coroner presided with the County Prosecutor as his advisor and two detectives as bailiffs. In the front of the room was a long table occupied by reporters, television and radio personnel, and broadcasting equipment. The hearing was broadcast with live microphones placed at the Coroner's seat and the witness stand. A swarm of reporters and photographers attended. Sheppard was brought into the room by police who searched him in full view of several hundred spectators. Sheppard's counsel were present during the three-day inquest but were not permitted to participate. When Sheppard's chief counsel attempted to place some documents in the record, he was forcibly ejected from the room by the Coroner, who received cheers, hugs, and kisses from ladies in the audience. Sheppard was questioned for five and one-half hours about his actions on the night of the murder, his married life, and a love affair with Susan Hayes.6 At the end of the hearing the Coroner announced that he 'could' order Sheppard held for the grand jury, but did not do so.
6
Throughout this period the newspapers emphasized evidence that tended to incriminate Sheppard and pointed out discrepancies in his statements to authorities. At the same time, Sheppard made many public statements to the press and wrote feature articles asserting his innocence.7 During the inquest on July 26, a headline in large type stated: 'Kerr (Captain of the Cleveland Police) Urges Sheppard's Arrest.' In the story, Detective McArthur 'disclosed that scientific tests at the Sheppard home have definitely established that the killer washed off a trail of blood from the murder bedroom to the downstairs section,' a circumstance casting doubt on Sheppard's accounts of the murder. No such evidence was produced at trial. The newspapers also delved into Sheppard's personal life. Articles stressed his extramarital love affairs as a motive for the crime. The newspapers portrayed Sheppard as a Lothario, fully explored his relationship with Susan Hayes, and named a number of other women who were allegedly involved with him. The testimony at trial never showed that Sheppard had any illicit relationships besides the one with Susan Hayes.
7
On July 28, an editorial entitled 'Why Don't Police Quiz Top Suspect' demanded that Sheppard be taken to police headquarters. It described him in the following language:
8
'Now proved under oath to be a liar, still free to go about his business, shielded by his family, protected by a smart lawyer who has made monkeys of the police and authorities, carrying a gun part of the time, left free to do whatever he pleases * * *.'
9
A front-page editorial on July 30 asked: 'Why Isn't Sam Sheppard in Jail?' It was later titled 'Quit Stalling—Bring Him In.' After calling Sheppard 'the most unusual murder suspect ever seen around these parts' the article said that '(e)xcept for some superficial questioning during Coroner Sam Gerber's inquest he has been scot-free of any official grilling * * *.' It asserted that he was 'surrounded by an iron curtain of protection (and) concealment.'
10
That night at 10 o'clock Sheppard was arrested at his father's home on a charge of murder. He was taken to the Bay Village City Hall where hundreds of people, newscasters, photographers and reporters were awaiting his arrival. He was immediately arraigned—having been denied a temporary delay to secure the presence of counsel—and bound over to the grand jury.
11
The publicity then grew in intensity until his indictment on August 17. Typical of the coverage during this period is a front-page interview entitled: 'DR. SAM: 'I Wish There Was Something I Could Get Off My Chest—but There Isn't." Unfavorable publicity included items such as a cartoon of the body of a sphinx with Sheppard's head and the legend below: "I Will Do Everything In My Power to Help Solve This Terrible Murder.'—Dr. Sam Sheppard.' Headlines announced, inter alia, that: 'Doctor Evidence is Ready for Jury,' 'Corrigan Tactics Stall Quizzing.' 'Sheppard 'Gay Set' Is Revealed By Houk,' 'Blood Is Found In Garage,' 'New Murder Evidence Is Found, Police Claim,' 'Dr. Sam Faces Quiz At Jail On Marilyn's Fear Of Him.' On August 18, an article appeared under the headline 'Dr. Sam Writes His Own Story.' And reproduced across the entire front page was a portion of the typed statement signed by Sheppard: 'I am not guilty of the murder of my wife, Marilyn. How could I, who have been trained to help people and devoted my life to saving life, commit such a terrible and revolting crime?' We do not detail the coverage further. There are five volumes filled with similar clippings from each of the three Cleveland newspapers covering the period from the murder until Sheppard's conviction in December 1954. The record includes no excerpts from newscasts on radio and television but since space was reserved in the courtroom for these media we assume that their coverage was equally large.
II.
12
With this background the case came on for trial two weeks before the November general election at which the chief prosecutor was a candidate for common pleas judge and the trial judge, Judge Blythin, was a candidate to succeed himself. Twenty-five days before the case was set, 75 veniremen were called as prospective jurors. All three Cleveland newspapers published the names and addresses of the veniremen. As a consequence, anonymous letters and telephone calls, as well as calls from friends, regarding the impending prosecution were received by all of the prospective jurors. The selection of the jury began on October 18, 1954.
13
The courtroom in which the trial was held measured 26 by 48 feet. A long temporary table was set up inside the bar, in back of the single counsel table. It ran the width of the courtroom, parallel to the bar railing, with one end less than three feet from the jury box. Approximately 20 representatives of newspapers and wire services were assigned seats at this table by the court. Behind the bar railing there were four rows of benches. These seats were likewise assigned by the court for the entire trial. The first row was occupied by representatives of television and radio stations, and the second and third rows by reporters from out-of-town newspapers and magazines. One side of the last row, which accommodated 14 people, was assigned to Sheppard's family and the other to Marilyn's. The public was permitted to fill vacancies in this row on special passes only. Representatives of the news media also used all the rooms on the courtroom floor, including the room where cases were ordinarily called and assigned for trial Private telephone lines and telegraphic equipment were installed in these rooms so that reports from the trial could be speeded to the papers. Station WSRS was permitted to set up broadcasting facilities on the third floor of the courthouse next door to the jury room, where the jury rested during recesses in the trial and deliberated. Newscasts were made from this room throughout the trial, and while the jury reached its vardict.
14
On the sidewalk and steps in front of the courthouse, television and newsreel cameras were occasionally used to take motion pictures of the participants in the trial, including the jury and the judge. Indeed, one television broadcast carried a staged interview of the judge as he entered the courthouse. In the corridors outside the courtroom there was a host of photographers and television personnel with flash cameras, portable lights and motion picture cameras. This group photographed the prospective jurors during selection of the jury. After the trial opened, the witnesses, counsel, and jurors were photographed and televised whenever they entered or left the courtroom. Sheppard was brought to the courtroom about 10 minutes before each session began; he was surrounded by reporters and extensively photographed for the newspapers and television. A rule of court prohibited picture-taking in the courtroom during the actual sessions of the court, but no restraints were put on photographers during recesses, which were taken once each morning and afternoon, with a longer period for lunch.
15
All of these arrangements with the news media and their massive coverage of the trial continued during the entire nine weeks of the trial. The courtroom remained crowded to capacity with representatives of news media. Their movement in and out of the courtroom often caused so much confusion that, despite the loud-speaker system installed in the courtroom, it was difficult for the witnesses and counsel to be heard. Furthermore, the reporters clustered within the bar of the small courtroom made confidential talk among Sheppard and his counsel almost impossible during the proceedings. They frequently had to leave the courtroom to obtain privacy. And many times when counsel wished to raise a point with the judge out of the hearing of the jury it was necessary to move to the judge's chambers. Even then, news media representatives so packed the judge's anteroom that counsel could hardly return from the chambers to the courtroom. The reporters vied with each other to find out what counsel and the judge had discussed, and often these matters later appeared in newspapers accessible to the jury.
16
The daily record of the proceedings was made available to the newspapers and the testimony of each witness was printed verbatim in the local editions, along with objections of counsel, and rulings by the judge. Pictures of Sheppard, the judge, counsel, pertinent witnesses, and the jury often accompanied the daily newspaper and television accounts. At times the newspapers published photographs of exhibits introduced at the trial, and the rooms of Sheppard's house were featured along with relevant testimony.
17
The jurors themselves were constantly exposed to the news media. Every juror, except one, testified at voir dire to reading about the case in the Cleveland papers or to having heard broadcasts about it. Seven of the 12 jurors who rendered the verdict had one or more Cleveland papers delivered in their home; the remaining jurors were not interrogated on the point. Nor were there questions as to radios or television sets in the jurors' homes, but we must assume that most of them owned such conveniences. As the selection of the jury progressed, individual pictures of prospective members appeared daily. During the trial, pictures of the jury appeared over 40 times in the Cleveland papers alone. The court permitted photographers to take pictures of the jury in the box, and individual pictures of the members in the jury room. One newspaper ran pictures of the jurors at the Sheppard home when they went there to view the scene of the murder. Another paper featured the home life of an alternate juror. The day before the verdict was rendered—while the jurors were at lunch and sequestered by two bailiffs—the jury was separated into two groups to pose for photographs which appeared in the newspapers.
III.
18
We now reach the conduct of the trial. While the intense publicity continued unabated, it is sufficient to relate only the more flagrant episodes:
19
1. On October 9, 1954, nine days before the case went to trial, an editorial in one of the newspapers criticized defense counsel's random poll of people on the streets as to their opinion of Sheppard's guilt or innocence in an effort to use the resulting statistics to show the necessity for change of venue. The article said the survey 'smacks of mass jury tampering,' called on defense counsel to drop it, and stated that the bar association should do something about it. It characterized the poll as 'non-judicial, non-legal, and nonsense.' The article was called to the attention of the court but no action was taken.
20
2. On the second day of voir dire examination a debate was staged and broadcast live over WHK radio. The participants, newspaper reporters, accused Sheppard's counsel of throwing roadblocks in the way of the prosecution and asserted that Sheppard conceded his guilt by hiring a prominent criminal lawyer. Sheppard's counsel objected to this broadcast and requested a continuance, but the judge denied the motion. When counsel asked the court to give some protection from such events, the judge replied that 'WHK doesn't have much coverage,' and that '(a)fter all, we are not trying this case by radio or in newspapers or any other means. We confine ourselves seriously to it in this courtroom and do the very best we can.'
21
3. While the jury was being selected, a two-inch headline asked: 'But Who Will Speak for Marilyn?' The frontpage story spoke of the 'perfect face' of the accused. 'Study that face as long as you want. Never will you get from it a hint of what might be the answer * * *.' The two brothers of the accused were described as 'Prosperous, poised. His two sisters-in law. Smart, chic, well-groomed. His elderly father. Courtly, reserved. A perfect type for the patriarch of a staunch clan.' The author then noted Marilyn Sheppard was 'still off stage,' and that she was an only child whose mother died when she was very young and whose father had no interest in the case. But the author—through quotes from Detective Chief James McArthur—assured readers that the prosecution's exhibits would speak for Marilyn. 'Her story,' McArthur stated, 'will come into this courtroom through our witnesses.' The article ends:
22
'Then you realize how what and who is missing from the perfect setting will be supplied.
23
'How in the Big Case justice will be done.
24
'Justice to Sam Sheppard.
25
'And to Marilyn Sheppard.'
26
4. As has been mentioned, the jury viewed the scene of the murder on the first day of the trial. Hundreds of reporters, cameramen and onlookers were there, and one representative of the news media was permitted to accompany the jury while it inspected the Sheppard home. The time of the jury's visit was revealed so far in advance that one of the newspapers was able to rent a helicopter and fly over the house taking pictures of the jurors on their tour.
27
5. On November 19, a Cleveland police officer gave testimony that tended to contradict details in the written statement Sheppard made to the Cleveland police. Two days later, in a broadcast heard over Station WHK in Cleveland, Robert Considine likened Sheppard to a perjurer and compared the episode to Alger Hiss' confrontation with Whittaker Chambers. Though defense counsel asked the judge to question the jury to ascertain how many heard the broadcast, the court refused to do so. The judge also overruled the motion for continuance based on the same ground, saying:
28
'Well, I don't know, we can't stop people, in any event, listening to it. It is a matter of free speech, and the court can't control everybody. * * * We are not going to harass the jury every morning. * * * It is getting to the point where if we do it every morning, we are suspecting the jury. I have confidence in this jury * * *.' 6. On November 24, a story appeared under an eight-column headline: 'Sam Called A 'Jekyll-Hyde' By Marilyn, Cousin To Testify.' It related that Marilyn had recently told friends that Sheppard was a 'Dr. Jekyll and Mr. Hyde' character. No such testimony was ever produced at the trial. The story went on to announce: 'The prosecution has a 'bombshell witness' on tap who will testify to Dr. Sam's display of fiery temper—countering the defense claim that the defendant is a gently physician with an even disposition.' Defense counsel made motions for change of venue, continuance and mistrial, but they were denied. No action was taken by the court.
29
7. When the trial was in its seventh week, Walter Winchell broadcast over WXEL television and WJW radio that Carole Beasley, who was under arrest in New York City for robbery, had stated that, as Sheppard's mistress, she had borne him a child. The defense asked that the jury be queried on the broadcast. Two jurors admitted in open court that they had heard it. The judge asked each: 'Would that have any effect upon your judgment?' Both replied, 'No.' This was accepted by the judge as sufficient; he merely asked the jury to 'pay no attention whatever to that type of scavenging. * * * Let's confine ourselves to this courtroom, if you please.' In answer to the motion for mistrial, the judge said:
30
'Well, even, so, Mr. Corrigan, how are you ever going to prevent those things, in any event? I don't justify them at all. I think it is outrageous, but in a sense, it is outrageous even if there were no trial here. The trial has nothing to do with it in the Court's mind, as far as its outrage is concerned, but— 'Mr. CORRIGAN: I don't know what effect it had on the mind of any of these jurors, and I can't find out unless inquiry is made.
31
'The COURT: How would you ever, in any jury, avoid that kind of a thing?'
32
8. On December 9, while Sheppard was on the witness stand he testified that he had been mistreated by Cleveland detectives after his arrest. Although he was not at the trial, Captain Kerr of the Homicide Bureau issued a press statement denying Sheppard's allegations which appeared under the headline: "Bare-faced Liar,' Kerr Says of Sam.' Captain Kerr never appeared as a witness at the trial.
33
9. After the case was submitted to the jury, it was sequestered for its deliberations, which took five days and four nights. After the verdict, defense counsel ascertained that the jurors had been allowed to make telephone calls to their homes every day while they were sequestered at the hotel. Although the telephones had been removed from the jurors' rooms, the jurors were permitted to use the phones in the bailiffs' rooms. The calls were placed by the jurors themselves; no record was kept of the jurors who made calls, the telephone numbers or the parties called. The bailiffs sat in the room where they could hear only the jurors' end of the conversation. The court had not instructed the bailiffs to prevent such calls. By a subsequent motion, defense counsel urged that this ground alone warranted a new trial, but the motion was overruled and no evidence was taken on the question.
IV.
34
The principle that justice cannot survive behind walls of silence has long been reflected in the 'Anglo-American distrust for secret trials.' In re Oliver, 333 U.S. 257, 268, 68 S.Ct. 499, 92 L.Ed. 682 (1948). A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. This Court has, therefore, been unwilling to place any direct limitations on the freedom traditionally exercised by the news media for '(w)hat transpires in the court room is public property.' Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947). The 'unqualified prohibitions laid down by the framers were intended to give to liberty of the press * * * the broadest scope that could be countenanced in an orderly society.' Bridges v. State of California, 314 U.S. 252, 265, 62 S.Ct. 190, 195, 86 L.Ed. 192 (1941). And where there was 'no threat or menace to the integrity of the trial,' Craig v. Harney, supra, 331 U.S. at 377, 67 S.Ct. at 1255, we have consistently required that the press have a free hand, even though we sometimes deplored its sensationalism.
35
But the Court has also pointed out that '(l)egal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.' Bridges v. State of California, supra, 314 U.S. at 271, 62 S.Ct. at 197. And the Court has insisted that no one be punished for a crime without 'a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power.' Chambers v. State of Florida, 309 U.S. 227, 236—237, 60 S.Ct. 472, 477, 84 L.Ed. 716 (1940). '.freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice.' Pennekamp v. State of Florida, 328 U.S. 331, 347, 66 S.Ct. 1029, 1037, 90 L.Ed. 1295 (1946). But it must not be allowed to divert the trial from the 'very purpose of a court system * * * to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures.' Cox v. State of Louisiana, 379 U.S. 559, 583, 85 S.Ct. 466, 471, 13 L.Ed.2d 487 (1965) (Black, J., dissenting). Among these 'legal procedures' is the requirement that the jury's verdict be based on evidence received in open court, not from outside sources. Thus, in Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959), we set aside a federal conviction where the jurors were exposed 'through news accounts' to information that was not admitted at trial. We held that the prejudice from such material 'may indeed be greater' than when it is part of the prosecution's evidence 'for it is then not tempered by protective procedures.' At 313, 79 S.Ct. at 1173. At the same time, we did not consider dispositive the statement of each juror 'that he would not be influenced by the news articles, that he could decide the case only on the evidence of record, and that he felt no prejudice against petitioner as a result of the articles.' At 312, 79 S.Ct. at 1173. Likewise, in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), even though each juror indicated that he could render an impartial verdict despite exposure to prejudicial newspaper articles, we set aside the conviction holding:
36
'With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion * * *.' At 728, 81 S.Ct., at 1645.
37
The undeviating rule of this Court was expressed by Mr. Justice Holmes over half a century ago in Patterson v. State of Colorado ex rel. Attorney General, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907):
38
'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.'
39
Moreover, 'the burden of showing essential unfairness * * * as a demonstrable reality,' Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942), need not be undertaken when television has exposed the community 'repeatedly and in depth to the spectacle of (the accused) personally confessing in detail to the crimes with which he was later to be charged.' Rideau v. State of Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663 (1963). In Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), two key witnesses were deputy sheriffs who doubled as jury shepherds during the trial. The deputies swore that they had not talked to the jurors about the case, but the Court nonetheless held that,
40
'even if it could be assumed that the deputies never did discuss the case directly with any members of the jury, it would be blinking reality not to recognize the extreme prejudice inherent in this continual association * * *.' At 473, 85 S.Ct., at 550.
41
Only last Term in Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), we set aside a conviction despite the absence of any showing of prejudice. We said there:
42
'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.' At 542—543, 85 S.Ct. at 1632.
43
And we cited with approval the language of Mr. Justice Black for the Court in In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955), that 'our system of law has always endeavored to prevent even the probability of unfairness.'
V.
44
It is clear that the totality of circumstances in this case also warrants such an approach. Unlike Estes, Sheppard was not granted a change of venue to a locale away from where the publicity originated; nor was his jury sequestered. The Estes jury saw none of the television broadcasts from the courtroom. On the contrary, the Sheppard jurors were subjected to newspaper, radio and television coverage of the trial while not taking part in the proceedings. They were allowed to go their separate ways outside of the courtroom, without adequate directions not to read or listen to anything concerning the case. The judge's 'admonitions' at the beginning of the trial are representative:
45
'I would suggest to you and caution you that you do not read any newspapers during the progress of this trial, that you do not listen to radio comments nor watch or listen to television comments, insofar as this case is concerned. You will feel very much better as the trial proceeds * * *. I am sure that we shall all feel very much better if we do not indulge in any newspaper reading or listening to any comments whatever about the matter while the case is in progress. After it is all over, you can read it all to your heart's content * * *.'
46
At intervals during the trial, the judge simply repeated his 'suggestions' and 'requests' that the jurors not expose themselves to comment upon the case. Moreover, the jurors were thrust into the role of celebrities by the judge's failure to insulate them from reporters and photographers. See Estes v. State of Texas, supra, 381 U.S., at 545—546, 85 S.Ct., at 1634. The numerous pictures of the jurors, with their addresses, which appeared in the newspapers before and during the trial itself exposed them to expressions of opinion from both cranks and friends. The fact that anonymous letters had been received by prospective jurors should have made the judge aware that this publicity seriously threatened the jurors' privacy.
47
The press coverage of the Estes trial was not nearly as massive and pervasive as the attention given by the Cleveland newspapers and broadcasting stations to Sheppard's prosecution.8 Sheppard stood indicted for the murder of his wife; the State was demanding the death penalty. For months the virulent publicity about Sheppard and the murder had made the case notorious. Charges and countercharges were aired in the news media besides those for which Sheppard was called to trial. In addition, only three months before trial, Sheppard was examined for more than five hours without counsel during a three-day inquest which ended in a public brawl. The inquest was televised live from a high school gymnasium seating hundreds of people. Furthermore, the trial began two weeks before a hotly contested election at which both Chief Prosecutor Mahon and Judge Blythin were candidates for judgeships.9
48
While we cannot say that Sheppard was denied due process by the judge's refusal to take precautions against the influence of pretrial publicity alone, the court's later rulings must be considered against the setting in which the trial was held. In light of this background, we believe that the arrangements made by the judge with the news media caused Sheppard to be deprived of that 'judicial serenity and calm to which (he) was entitled.' Estes v. State of Texas, supra, 381 U.S., at 536, 85 S.Ct., at 1629. The fact is that bedlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom, hounding most of the participants in the trial, especially Sheppard. At a temporary table within a few feet of the jury box and counsel table sat some 20 reporters staring at Sheppard and taking notes. The erection of a press table for reporters inside the bar is unprecedented. The bar of the court is reserved for counsel, providing them a safe place in which to keep papers and exhibits, and to confer privately with client and co-counsel. It is designed to protect the witness and the jury from any distractions, intrusions or influences, and to permit bench discussions of the judge's rulings away from the hearing of the public and the jury. Having assigned almost all of the available seats in the courtroom to the news media the judge lost his ability to supervise that environment. The movement of the reporters in and out of the courtroom caused frequent confusion and disruption of the trial. And the record reveals constant commotion within the bar. Moreover, the judge gave the throng of newsmen gathered in the corridors of the courthouse absolute free rein. Participants in the trial, including the jury, were forced to run a gantlet of reporters and photographers each time they entered or left the courtroom. The total lack of consideration for the privacy of the jury was demonstrated by the assignment to a broadcasting station of space next to the jury room on the floor above the courtroom, as well as the fact that jurors were allowed to make telephone calls during their five-day deliberation.
VI.
49
There can be no question about the nature of the publicity which surrounded Sheppard's trial. We agree, as did the Court of Appeals, with the findings in Judge Bell's opinion for the Ohio Supreme Court:
50
'Murder and mystery, society, sex and suspense were combined in this case in such a manner as to intrigue and captivate the public fancy to a degree perhaps unparalleled in recent annals. Throughout the preindictment investigation, the subsequent legal skirmishes and the nine-week trial, circulation-conscious editors catered to the insatiable interest of the American public in the bizarre. * * * In this atmosphere of a 'Roman holiday' for the news media, Sam Sheppard stood trial for his life.' 165 Ohio St., at 294, 135 N.E.2d, at 342.
51
Indeed, every court that has considered this case, save the court that tried it, has deplored the manner in which the news media inflamed and prejudiced the public.10
52
Much of the material printed or broadcast during the trial was never heard from the witness stand, such as the charges that Sheppard had purposely impeded the murder investigation and must be guilty since he had hired a prominent criminal lawyer; that Sheppard was a perjurer; that he had sexual relations with numerous women; that his slain wife had characterized him as a 'Jekyll-Hyde'; that he was 'a bare-faced liar' because of his testimony as to police treatment; and finally, that a woman convict claimed Sheppard to be the father of her illegitimate child. As the trial progressed, the newspapers summarized and interpreted the evidence, devoting particular attention to the material that incriminated Sheppard, and often drew unwarranted inferences from testimony. At one point, a front-page picture of Mrs. Sheppard's blood-stained pillow was published after being 'doctored' to show more clearly an alleged imprint of a surgical instrument.
53
Nor is there doubt that this deluge of publicity reached at least some of the jury. On the only occasion that the jury was queried, two jurors admitted in open court to hearing the highly inflammatory charge that a prison inmate claimed Sheppard as the father of her illegitimate child. Despite the extent and nature of the publicity to which the jury was exposed during trial, the judge refused defense counsel's other requests that the jurors be asked whether they had read or heard specific prejudicial comment about the case, including the incidents we have previously summarized. In these circumstances, we can assume that some of this material reached members of the jury. See Commonwealth v. Crehan, 345 Mass. 609, 188 N.E.2d 923 (1963).
VII.
54
The court's fundamental error is compounded by the holding that it lacked power to control the publicity about the trial. From the very inception of the proceedings the judge announced that neither he nor anyone else could restrict prejudicial news accounts. And he reiterated this view on numerous occasions. Since he viewed the news media as his target, the judge never considered other means that are often utilized to reduce the appearance of prejudicial material and to protect the jury from outside influence. We conclude that these procedures would have been sufficient to guarantee Sheppard a fair trial and so do not consider what sanctions might be available against a recalcitrant press nor the charges of bias now made against the state trial judge.11
55
The carnival atmosphere at trial could easily have been avoided since the courtroom and courthouse premises are subject to the control of the court. As we stressed in Estes, the presence of the press at judicial proceedings must be limited when it is apparent that the accused might otherwise be prejudiced or disadvantaged.12 Bearing in mind the massive pretrial publicity, the judge should have adopted stricter rules governing the use of the courtroom by newsmen, as Sheppard's counsel requested. The number of reporters in the courtroom itself could have been limited at the first sign that their presence would disrupt the trial. They certainly should not have been placed inside the bar. Furthermore, the judge should have more closely regulated the conduct of newsmen in the courtroom. For instance, the judge belatedly asked them not to handle and photograph trial exhibits lying on the counsel table during recesses.
56
Secondly, the court should have insulated the witnesses. All of the newspapers and radio stations apparently interviewed prospective witnesses at will, and in many instances disclosed their testimony. A typical example was the publication of numerous statements by Susan Hayes, before her appearance in court, regarding her love affair with Sheppard. Although the witnesses were barred from the courtroom during the trial the full verbatim testimony was available to them in the press. This completely nullified the judge's imposition of the rule. See Estes v. State of Texas, supra, 381 U.S., at 547, 85 S.Ct., at 1635.
57
Thirdly, the court should have made some effort to control the release of leads, information, and gossip to the press by police officers, witnesses, and the counsel for both sides. Much of the information thus disclosed was inaccurate, leading to groundless rumors and confusion.13 That the judge was aware of his responsibility in this respect may be seen from his warning to Steve Sheppard, the accused's brother, who had apparently made public statements in an attempt to discredit testimony for the prosecution. The judge made this statement in the presence of the jury:
58
'Now, the Court wants to say a word. That he was told—he has not read anything about it at all—but he was informed that Dr. Steve Sheppard, who has been granted the privilege of remaining in the court room during the trial, has been trying the case in the newspapers and making rather uncomplimentary comments about the testimony of the witnesses for the State.
59
'Let it be now understood that if Dr. Steve Sheppard wishes to use the newspapers to try his case while we are trying it here, he will be barred from remaining in the court room during the progress of the trial if he is to be a witness in the case.
60
'The Court appreciates he cannot deny Steve Sheppard the right of free speech, but he can deny him the * * * privilege of being in the courtroom, if he wants to avail himself of that method during the progress of the trial.'
61
Defense counsel immediately brought to the court's attention the tremendous amount of publicity in the Cleveland press that 'misrepresented entirely the testimony' in the case. Under such circumstances, the judge should have at least warned the newspapers to check the accuracy of their accounts. And it is obvious that the judge should have further sought to alleviate this problem by imposing control over the statements made to the news media by counsel, witnesses, and especially the Coroner and police officers. The prosecution repeatedly made evidence available to the news media which was never offered in the trial. Much of the 'evidence' disseminated in this fashion was clearly inadmissible. The exclusion of such evidence in court is rendered meaningless when news media make it available to the public. For example, the publicity about Sheppard's refusal to take a lie detector test came directly from police officers and the Coroner.14 The story that Sheppard had been called a 'Jekyll-Hyde' personality by his wife was attributed to a prosecution witness. No such testimony was given. The further report that there was 'a 'bombshell witness' on tap' who would testify as to Sheppard's 'fiery temper' could only have emanated from the prosecution. Moreover, the newspapers described in detail clues that had been found by the police, but not put into the record.15
62
The fact that many of the prejudicial news items can be traced to the prosecution, as well as the defense, aggravates the judge's failure to take any action. See Stroble v. State of California, 343 U.S. 181, 201, 72 S.Ct. 599, 609, 96 L.Ed. 872 (1952) (Frankfurter, J., dissenting). Effective control of these sources—concededly within the court's power—might well have prevented the divulgence of inaccurate information, rumors, and accusations that made up much of the inflammatory publicity, at least after Sheppard's indictment.
63
More specifically, the trial court might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters, such as the refusal of Sheppard to submit to interrogation or take any lie detector tests; any statement made by Sheppard to officials; the identity of prospective witnesses or their probable testimony; any belief in guilt or innocence; or like statements concerning the merits of the case. See State v. Van Duyne, 43 N.J., 369, 389, 204 A.2d 841, 852 (1964), in which the court interpreted Canon 20 of the American Bar Association's Canons of Professional Ethics to prohibit such statements. Being advised of the great public interest in the case, the mass coverage of the press, and the potential prejudicial impact of publicity, the court could also have requested the appropriate city and county officials to promulgate a regulation with respect to dissemination of information about the case by their employees.16 In addition, reporters who wrote or broadcast prejudicial stories, could have been warned as to the impropriety of publishing material not introduced in the proceedings. The judge was put on notice of such events by defense counsel's complaint about the WHK broadcast on the second day of trial. See p. 346, supra. In this manner, Sheppard's right to a trial free from outside interference would have been given added protection without corresponding curtailment of the news media. Had the judge, the other officers of the court, and the police placed the interest of justice first, the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom—not pieced together from extrajudicial statements.
64
From the cases coming here we note that unfair and prejudicial news comment on pending trials has become increasingly prevalent. Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances. Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. In addition, sequestration of the jury was something the judge should have raised sua sponte with counsel. If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.
65
Since the state trial judge did not fulfill his duty to protect Sheppard from the inherently prejudicial publicity which saturated the community and to control disruptive influences in the courtroom, we must reverse the denial of the habeas petition. The case is remanded to the District Court with instructions to issue the writ and order that Sheppard be released from custody unless the State puts him to its charges again within a reasonable time.
66
It is so ordered.
67
Mr. Justice BLACK dissents.
1
Sheppard was convicted in 1954 in the Court of Common Pleas of Cuyahoga County, Ohio. His conviction was affirmed by the Court of Appeals for Cuyahoga County, State v. Sheppard, 100 Ohio App. 345, 128 N.E.2d 471 (1955), and the Ohio Supreme Court, 165 Ohio St. 293, 135 N.E.2d 340 (1956). We denied certiorari on the original application for review. 352 U.S. 910, 77 S.Ct. 118, 1 L.Ed.2d 119 (1956).
2
The several witnesses to whom Sheppard narrated his experiences differ in their description of various details. Sheppard claimed the vagueness of his perception was caused by his sudden awakening, the dimness of the light, and his loss of consciousness.
3
Sheppard was suffering from severe pain in his neck, a swollen eye, and shock.
4
But newspaper photographers and reporters were permitted access to Sheppard's home from time to time and took pictures throughout the premises.
5
At the same time, the newspapers reported that other possible suspects had been 'cleared' by lie detector tests. One of these persons was quoted as saying that he could not understand why an innocent man would refuse to take such a test.
6
The newspapers had heavily emphasized Sheppard's illicit affair with Susan Hayes, and the fact that he had initially lied about it.
7
A number of articles calculated to evoke sympathy for Sheppard were printed, such as the letters Sheppard wrote to his son while in jail. These stories often appeared together with news coverage which was unfavorable to him.
8
Many more reporters and photographers attended the Sheppard trial. And it attracted several nationally famous commentators as well.
9
At the commencement of trial, defense counsel made motions for continuance and change of venue. The judge postponed ruling on these motions until he determined whether an impartial jury could be impaneled. Voir dire examination showed that with one exception all members selected for jury service had read something about the case in the newspapers. Since, however, all of the jurors stated that they would not be influenced by what they had read or seen, the judge overruled both of the motions. Without regard to whether the judge's actions in this respect reach dimensions that would justify issuance of the habeas writ, it should be noted that a short continuance would have alleviated any problem with regard to the judicial elections. The court in Delaney v. United States, 199 F.2d 107, 115 (C.A.1st. Cir. 1952), recognized such a duty under similar circumstances, holding that 'if assurance of a fair trial would necessitate that the trial of the case be postponed until after the election, then we think the law required no less than that.'
10
Typical comments on the trial by the press itself include:
'The question of Dr. Sheppard's guilt or innocence still is before the courts. Those who have examined the trial record carefully are divided as to the propriety of the verdict. But almost everyone who watched the performance of the Cleveland press agrees that a fair hearing for the defendant, in that area, would be a modern miracle.' Harrison, 'The press vs. the Courts,' The Saturday Review (Oct. 15, 1955).
'At this distance, some 100 miles from Cleveland, it looks to us as though the Sheppard murder case was sensationalized to the point at which the press must ask itself if its freedom, carried to excess, doesn't interfere with the conduct of fair trials.' Editorial, The Toledo Blade (Dec. 22, 1954).
11
In an unsworn statement, which the parties agreed would have the status of a deposition, made 10 years after Sheppard's conviction and six years after Judge Blythin's death, Dorothy Kilgallen asserted that Judge Blythin had told her: 'It's an open and shut case * * * he is guilty as hell.' It is thus urged that Sheppard be released on the ground that the judge's bias infected the entire trial. But we need not reach this argument, since the judge's failure to insulate the proceedings from prejudicial publicity and disruptive influences deprived Sheppard of the chance to receive a fair hearing.
12
The judge's awareness of his power in this respect is manifest from his assignment of seats to the press.
13
The problem here was further complicated by the independent action of the newspapers in reporting 'evidence' and gossip which they uncovered. The press not only inferred that Sheppard was guilty because he 'stalled' the investigation, hid behind his family, and hired a prominent criminal lawyer, but denounced as 'mass jury tampering' his efforts to gather evidence of community prejudice caused by such publications. Sheppard's counterattacks added some fuel but, in these circumstances, cannot preclude him from asserting his right to a fair trial. Putting to one side news stories attributed to police officials, prospective witnesses, the Sheppards, and the lawyers, it is possible that the other publicity 'would itself have had a prejudicial effect.' Cf. Report of the President's Commission on the Assassination of President Kennedy, at 239.
14
When two police officers testified at trial that Sheppard refused to take a lie detector test, the judge declined to give a requested instruction that the results of such a test would be inadmissible in any event. He simply told the jury that no person has an obligation 'to take any lie detector test.'
15
Such 'premature disclosure and weighing of the evidence' may seriously jeopardize a defendant's right to an impartial jury. '(N)either the press nor the public had a right to be contemporaneously informed by the police or prosecuting authorities of the details of the evidence being accumulated against (Sheppard).' Cf. Report of the President's Commission, supra, at 239, 240.
16
The Department of Justice, the City of New York, and other governmental agencies have issued such regulations. E.g., 28 CFR § 50.2 (1966). For general information on this topic see periodic publications (e.g., Nos. 71, 124, and 158) by the Freedom of Information Center, School of Journalism, University of Missouri.
| 01
|
384 U.S. 641
86 S.Ct. 1717
16 L.Ed.2d 828
Nicholas de B. KATZENBACH, Attorney General of the United States, et al., Appellants,v.John P. MORGAN and Christine Morgan. NEW YORK CITY BOARD OF ELECTIONS, etc., Appellants, v. John P. MORGAN and Christine Morgan.
Nos. 847, 877.
Argued April 18, 1966.
Decided June 13, 1966.
[Syllabus from pages 641-642 intentionally omitted]
Sol. Gen. Thurgood Marshall and J. Lee Rankin, New York City, for appellants.
Alfred Avins, Memphis, Tenn., for appellees.
Rafael Hernandez Colon, Ponce, P.R., for Commonwealth of Puerto Rico, as amicus curiae.
Jean M. Coon, Albany, N.Y., for State of New York, as amicus curiae.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
These cases concern the constitutionality of § 4(e) of the Voting Rights Act of 1965.1 That law, in the respects pertinent in these cases, provides that no person who has successfully completed the sixth primary grade in a public school in, or a private school accredited by, the Commonwealth of Puerto Rico in which the language of instruction was other than English shall be denied the right to vote in any election because of his inability to read or write English. Appellees, registered voters in New York City, brought this suit to challenge the constitutionality of § 4(e) insofar as it pro tanto prohibits the enforcement of the election laws of New York2 requiring an ability to read and write English as a condition of voting. Under these laws many of the several hundred thousand New York City residents who have migrated there from the Commonwealth of Puerto Rico had previously been denied the right to vote, and appellees attack § 4(e) insofar as it would enable many of these citizens to vote.3 Pursuant to § 14(b) of the Voting Rights Act of 1965, appellees commenced this proceeding in the District Court for the District of Columbia seeking a declaration that § 4(e) is invalid and an injunction prohibiting appellants, the Attorney General of the United States and the New York City Board of Elections, from either enforcing or complying with s 4(e).4 A three-judge district court was designated. 28 U.S.C. §§ 2282, 2284 (1964 ed.). Upon cross motions for summary judgment, that court, one judge dissenting, granted the declaratory and injunctive relief appellees sought. The court held that in enacting § 4(e) Congress exceeded the powers granted to it by the Constitution and therefore usurped powers reserved to the States by the Tenth Amendment. 247 F.Supp. 196. Appeals were taken directly to this Court, 28 U.S.C. §§ 1252, 1253 (1964 ed.) and we noted probable jurisdiction. 382 U.S. 1007, 86 S.Ct. 621, 15 L.Ed.2d 524. We reverse. We hold that, in the application challenged in these cases, § 4(e) is a proper exercise of the powers granted to Congress by § 5 of the Fourteenth Amendment5 and that by force of the Supremacy Clause, Article VI, the New York English literacy requirement cannot be enforced to the extent that it is inconsistent with § 4(e).
2
Under the distribution of powers effected by the Constitution, the States establish qualifications for voting for state officers, and the qualifications established by the States for voting for members of the most numerous branch of the state legislature also determine who may vote for United States Representatives and Senators, Art. I, § 2; Seventeenth Amendment; Ex parte Yarbrough, 110 U.S. 651, 663, 4 S.Ct. 152, 28 L.Ed. 274. But, of course, the States have no power to grant or withhold the franchise on conditions that are forbidden by the Fourteenth Amendment, or any other provision of the Constitution. Such exercises of state power are no more immune to the limitations of the Fourteenth Amendment than any other state action. The Equal Protection Clause itself has been held to forbid some state laws that restrict the right to vote.6
3
The Attorney General of the State of New York argues that an exercise of congressional power under § 5 of the Fourteenth Amendment that prohibits the enforcement of a state law can only be sustained if the judicial branch determines that the state law is prohibited by the provisions of the Amendment that Congress sought to enforce. More specifically, he urges that § 4(e) cannot be sustained as appropriate legislation to enforce the Equal Protection Clause unless the judiciary decides—even with the guidance of a congressional judgment—that the application of the English literacy requirement prohibited by § 4(e) is forbidden by the Equal Protection Clause itself. We disagree. Neither the language nor history of § 5 supports such a construction.7 As was said with regard to § 5 in Ex parte Com. of Virginia, 100 U.S. 339, 345, 25 L.Ed. 676. 'It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the amendments fully effective.' A construction of § 5 that would require a judicial determination that the enforcement of the state law precluded by Congress violated the Amendment, as a condition of sustaining the congressional enactment, would depreciate both congressional resourcefulness and congressional responsibility for implementing the Amendment.8 It would confine the legislative power in this context to the insignificant role of abrogating only those state laws that the judicial branch was prepared to adjudge unconstitutional, or of merely informing the judgment of the judiciary by particularizing the 'majestic generalities' of § 1 of the Amendment. See Fay v. People of State of New York, 332 U.S. 261, 282—284, 67 S.Ct. 1613, 1624—1625, 91 L.Ed. 2043.
4
Thus our task in this case is not to determine whether the New York English literacy requirement as applied to deny the right to vote to a person who successfully completed the sixth grade in a Puerto Rican school violates the Equal Protection Clause. Accordingly, our decision in Lassiter v. Northampton County Bd. of Election, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072, sustaining the North Carolina English literacy requirement as not in all circumstances prohibited by the first sections of the Fourteenth and Fifteenth Amendments, is inapposite. Compare also Guinn v. United States, 238 U.S. 347, 366, 35 S.Ct. 926, 931, 59 L.Ed. 1340; Camacho v. Doe, 31 Misc.2d 692, 221 N.Y.S.2d 262 (1958), aff'd 7 N.Y.2d 762, 194 N.Y.S.2d 33, 163 N.E.2d 140 (1959); Camacho v. Rogers, 199 F.Supp. 155 (D.C.S.D.N.Y.1961). Lassiter did not present the question before us here: Without regard to whether the judiciary would find that the Equal Protection Clause itself nullifies New York's English literacy requirement as so applied, could Congress prohibit the enforcement of the state law by legislating under § 5 of the Fourteenth Amendment? In answering this question, our task is limited to determining whether such legislation is, as required by § 5, appropriate legislation to enforce the Equal Protection Clause.
5
By including § 5 the draftsmen sought to grant to Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause, Art. I, § 8, cl. 18.9 The classic formulation of the reach of those powers was established by Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579:
6
'Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
7
Ex parte Com. of Virginia, 100 U.S., at 345—346, 25 L.Ed. 676, decided 12 years after the adoption of the Fourteenth Amendment, held that congressional power under § 5 had this same broad scope:
8
'Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.' Strauder v. West Virginia, 100 U.S. 303, 311, 25 L.Ed. 664; Virginia v. Rives, 100 U.S. 313, 318, 25 L.Ed. 667. Section 2 of the Fifteenth Amendment grants Congress a similar power to enforce by 'appropriate legislation' the provisions of that amendment; and we recently held in State of South Carolina v. Katzenbach, 383 U.S. 301, 326, 86 S.Ct. 803, 817, 15 L.Ed.2d 769, that '(t)he basic test to be applied in a case involving § 2 of the Fifteenth Amendment is the same as in all cases concerning the express powers of Congress with relation to the reserved powers of the States.' That test was identified as the one formulated in McCulloch v. Maryland. See also James Everard's Breweries v. Day, 265 U.S. 545, 558—559, 44 S.Ct. 628, 631, 68 L.Ed. 1174 (Eighteenth Amendment). Thus the McCulloch v. Maryland standard is the measure of what constitutes 'appropriate legislation' under § 5 of the Fourteenth Amendment. Correctly viewed, § 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.
9
We therefore proceed to the consideration whether § 4(e) is 'appropriate legislation' to enforce the Equal Protection Clause, that is, under the McCulloch v. Maryland standard, whether § 4(e) may be regarded as an enactment to enforce the Equal Protection Clause, whether it is 'plainly adapted to that end' and whether it is not prohibited by but is consistent with 'the letter and spirit of the constitution.'10
10
There can be no doubt that § 4(e) may be regarded as an enactment to enforce the Equal Protection Clause. Congress explicitly declared that it enacted § 4(e) 'to secure the rights under the fourteenth amendment of persons educated in American-flag schools in which the predominant classroom language was other than English.' The persons referred to include those who have migrated from the Commonwealth of Puerto Rico to New York and who have been denied the right to vote because of their inability to read and write English, and the Fourteenth Amendment rights referred to include those emanating from the Equal Protection Clause. More specifically, § 4(e) may be viewed as a measure to secure for the Puerto Rican community residing in New York nondiscriminatory treatment by government—both in the imposition of voting qualifications and the provision or administration of governmental services, such as public schools, public housing and law enforcement.
11
Section 4(e) may be readily seen as 'plainly adapted' to furthering these aims of the Equal Protection Clause. The practical effect of § 4(e) is to prohibit New York from denying the right to vote to large segments of its Puerto Rican community. Congress has thus prohibited the State from denying to that community the right that is 'preservative of all rights.' Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220. This enhanced political power will be helpful in gaining nondiscriminatory treatment in public services for the entire Puerto Rican community.11 Section 4(e) thereby enables the Puerto Rican minority better to obtain 'perfect equality of civil rights and the equal protection of the laws.' It was well within congressional authority to say that this need of the Puerto Rican minority for the vote warranted federal intrusion upon any state interests served by the English literacy requirement. It was for Congress, as the branch that made this judgment, to assess and weigh the various conflicting considerations—the risk or pervasiveness of the discrimination in governmental services, the effectiveness of eliminating the state restriction on the right to vote as a means of dealing with the evil, the adequacy or availability of alternative remedies, and the nature and significance of the state interests that would be affected by the nullification of the English literacy requirement as applied to residents who have successfully completed the sixth grade in a Puerto Rican school. It is not for us to review the congressional resolution of these factors. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did. There plainly was such a basis to support § 4(e) in the application in question in this case. Any contrary conclusion would require us to be blind to the realities familiar to the legislators.12
12
The result is no different if we confine our inquiry to the question whether § 4(e) was merely legislation aimed at the elimination of an invidious discrimination in establishing voter qualifications. We are told that New York's English literacy requirement originated in the desire to provide an incentive for non-English speaking immigrants to learn the English language and in order to assure the intelligent exercise of the franchise. Yet Congress might well have questioned, in light of the many exemptions provided,13 and some evidence suggesting that prejudice played a prominent role in the enactment of the requirement,14 whether these were actually the interests being served. Congress might have also questioned whether denial of a right deemed so precious and fundamental in our society was a necessary or appropriate means of encouraging persons to learn English, or of furthering the goal of an intelligent exercise of the franchise.15 Finally, Congress might well have concluded that as a means of furthering the intelligent exercise of the franchise, an ability to read or understand Spanish is as effective as ability to read English for those to whom Spanish-language newspapers and Spanish-language radio and television programs are available to inform them of election issues and governmental affairs.16 Since Congress undertook to legislate so as to preclude the enforcement of the state law, and did so in the context of a general appraisal of literacy requirements for voting, see State of South Carolina v. Katzenbach, supra, to which it brought a specially informed legislative competence,17 it was Congress' prerogative to weigh these competing considerations. Here again, it is enough that we perceive a basis upon which Congress might predicate a judgment that the application of New York's English literacy requirement to deny the right to vote to a person with a sixth grade education in Puerto Rican schools in which the language of instruction was other than English constituted an invidious discrimination in violation of the Equal Protection Clause.
13
There remains the question whether the congressional remedies adopted in § 4(e) constitute means which are not prohibited by, but are consistent 'with the letter and spirit of the constitution.' The only respect in which appellees contend that § 4(e) fails in this regard is that the section itself works an invidious discrimination in violation of the Fifth Amendment by prohibiting the enforcement of the English literacy requirement only for those educated in American-flag schools (schools located within United States jurisdiction) in which the language of instruction was other than English, and not for those educated in schools beyond the territorial limits of the United States in which the language of instruction was also other than English. This is not a complaint that Congress, in enacting § 4(e), has unconstitutionally denied or diluted anyone's right to vote but rather that Congress violated the Constitution by not extending the relief effected in § 4(e) to those educated in non-American-flag schools. We need not pause to determine whether appellees have a sufficient personal interest to have § 4(e) invalidated on this ground, see generally United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524, since the argument, in our view, falls on the merits.
14
Section 4(e) does not restrict or deny the franchise but in effect extends the franchise to persons who otherwise would be denied it by state law. Thus we need not decide whether a state literacy law conditioning the right to vote on achieving a certain level of education in an American-flag school (regardless of the language of instruction) discriminates invidiously against those educated in non-American-flag schools. We need only decide whether the challenged limitation on the relief effected in § 4(e) was permissible. In deciding that question, the principle that calls for the closest scrutiny of distinctions in laws denying fundamental rights, see n. 15, supra, is inapplicable; for the distinction challenged by appellees is presented only as a limitation on a reform measure aimed at eliminating an existing barrier to the exercise of the franchise. Rather, in deciding the constitutional propriety of the limitations in such a reform measure we are guided by the familiar principles that a 'statute is not invalid under the Constitution because it might have gone farther than it did,' Roschen v. Ward, 279 U.S. 337, 339, 49 S.Ct. 336, 73 L.Ed. 722, that a legislature need not 'strike at all evils at the same time.' Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 610, 55 S.Ct. 570, 571, 79 L.Ed. 1086 and that 'reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,' Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563.
15
Guided by these principles, we are satisfied that appellees' challenge to this limitation in § 4(e) is without merit. In the context of the case before us, the congressional choice to limit the relief effected in § 4(e) may, for example, reflect Congress' greater familiarity with the quality of instruction in American-flag schools,18 a recognition of the unique historic relationship between the Congress and the Commonwealth of Puerto Rico,19 an awareness of the Federal Government's acceptance of the desirability of the use of Spanish as the language of instruction in Commonwealth schools,20 and the fact that Congress has fostered policies encouraging migration from the Commonwealth to the States.21 We have no occasion to determine in this case whether such factors would justify a similar distinction embodied in a voting-qualification law that denied the franchise to persons educated in non-American-flag schools. We hold only that the limitation on relief effected in § 4(e) does not constitute a forbidden discrimination since these factors might well have been the basis for the decision of Congress to go 'no farther than it did.'
16
We therefore conclude that § 4(e), in the application challenged in this case, is appropriate legislation to enforce the Equal Protection Clause and that the judgment of the District Court must be and hereby is reversed.
17
Reversed.
18
Mr. Justice DOUGLAS joins the Court's opinion except for the discussion, at pp. 656—658, of the question whether the congressional remedies adopted in § 4(e) constitute means which are not prohibited by, but are consistent with 'the letter and spirit of the constitution.' On that Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
19
Worthy as its purposes may be thought by many, I do not see how § 4(e) of the Voting Rights Act of 1965, 79 Stat. 439, 42 U.S.C. § 1973b(e) (1964 ed. Supp. I), can be sustained except at the sacrifice of fundamentals in the American constitutional system—the separation between the legislative and judicial function and the boundaries between federal and state political authority. By the same token I think that the validity of New York's literacy test, a question which the Court considers only in the context of the federal statute, must be upheld. It will conduce to analytical clarity if I discuss the second issue first.
I.
20
The Cardona Case (No. 673).
21
This case presents a straightforward Equal Protection problem. Appellant, a resident and citizen of New York, sought to register to vote but was refused registration because she failed to meet the New York English literacy qualification respecting eligibility for the franchise.1 She maintained that although she could not read or write English, she had been born and educated in Puerto Rico and was literate in Spanish. She alleges that New York's statute requiring satisfaction of an English literacy test is an arbitrary and irrational classification that violates the Equal Protection Clause at least as applied to someone who, like herself, is literate in Spanish.
22
Any analysis of this problem must begin with the established rule of law that the franchise is essentially a matter of state concern, Minor v. Happersett, 21 Wall. 162; Lassiter v. Northampton Election Bd., 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072, subject only to the overriding requirements of various federal constitutional provisions dealing with the franchise, e.g., the Fifteenth, Seventeenth, Nineteenth, and Twenty-fourth Amendments,2 and, as more recently decided, to the general principles of the Fourteenth Amendment. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675.
23
The Equal Protection Clause of the Fourteenth Amendment, which alone concerns us here, forbids a State from arbitrarily discriminating among different classes of persons. Of course it has always been recognized that nearly all legislation involves some sort of classification, and the equal protection test applied by this Court is a narrow one: a state enactment or practice may be struck down under the clause only if it cannot be justified as founded upon a rational and permissible state policy. See, e.g., Powell v. Commonwealth of Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 32 L.Ed. 253; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369; Walters v. City of St. Louis, 347 U.S. 231, 74 S.Ct. 505, 98 L.Ed. 660.
24
It is suggested that a different and broader equal protection standard applies in cases where 'fundamental liberties and rights are threatened,' see 384 U.S. p. 655, 86 S.Ct. p. 1726, 16 L.Ed.2d p. 838, note 15; dissenting opinion of Douglas, J., in Cardona, 384 U.S. pp. 676—677, 86 S.Ct. pp. 1730—1731, 16 L.Ed.2d pp. 851—852, which would require a State to show a need greater than mere rational policy to justify classifications in this area. No such dual-level test has ever been articulated by this Court, and I do not believe that any such approach is consistent with the purposes of the Equal Protection Clause, with the overwhelming weight of authority, or with well-established principles of federalism which underlie the Equal Protection Clause.
25
Thus for me, applying the basic equal protection standard, the issue in this case is whether New York has shown that its English-language literacy test is reasonably designed to serve a legitimate state interest. I think that it has.
26
In 1959, in Lassiter v. Northampton Election Bd., supra, this Court dealt with substantially the same question and resolved it unanimously in favor of the legitimacy of a state literacy qualification. There a North Carolina English literacy test was challenged. We held that there was 'wide scope' for State qualifications of this sort. 360 U.S., at 51, 79 S.Ct. 985, 3 L.Ed.2d 1072. Dealing with literacy tests generally, the Court there held:
27
'The ability to read and write * * * has some relation to standards designed to promote intelligent use of the ballot. * * * Literacy and intelligence are obviously not synonymous. Illiterate people may be intelligent voters. Yet in our society where newspapers, periodicals, books, and other printed matter canvass and debate campaign issues, a State might conclude that only those who are literate should exercise the franchise. * * * It was said last century in Massachusetts that a literacy test was designed to insure an 'independent and intelligent' exercise of the right of suffrage. Stone v. Smith, 159 Mass. 413—414, 34 N.E. 521. North Carolina agrees. We do not sit in judgment on the wisdom of that policy. We cannot say, however, that it is not an allowable one measured by constitutional standards.' 360 U.S., at 51 53, 79 S.Ct. at 990.
28
I believe the same interests recounted in Lassiter indubitably point toward upholding the rationality of the New York voting test. It is true that the issue here is not so simply drawn between literacy is not so simply drawn between literacy per se and illiteracy. Appellant alleges that she is literate in Spanish, and that she studied American history and government in United States Spanish-speaking schools in Puerto Rico. She alleges further that she is 'a regular reader of the New York City Spanish-language daily newspapers and other periodicals, which * * * provide proportionately more coverage of government and politics than do most English-language newspapers,' and that she listens to Spanish-language radio broadcasts in New York which provide full treatment of governmental and political news. It is thus maintained that whatever may be the validity of literacy tests per se as a condition of voting, application of such a test to one literate in Spanish, in the context of the large and politically significant Spanish-speaking community in New York, serves no legitimate state interest, and is thus an arbitrary classification that violates the Equal Protection Clause.
29
Although to be sure there is a difference between a totally illiterate person and one who is literate in a foreign tongue, I do not believe that this added factor vitiates the constitutionality of the New York statute. Accepting appellant's allegations as true, it is nevertheless also true that the range of material available to a resident of New York literate only in Spanish is much more limited than what is available to an English-speaking resident, that the business of national, state, and local government is conducted in English, and that propositions, amendments, and offices for which candidates are running listed on the ballot are likewise in English. It is also true that most candidates, certainly those campaigning on a national or statewide level make their speeches in English. New York may justifiably want its voters to be able to understand candidates directly rather than through possibly imprecise translations or summaries reported in a limited number of Spanish news media. It is noteworthy that the Federal Government requires literacy in English as a prerequisite to naturalization, 66 Stat. 239, 8 U.S.C. § 1423 (1964 ed.), attesting to the national view of its importance as a prerequisite to full integration into the American political community. Relevant too is the fact that the New York English test is not complex,3 that it is fairly administered,4 and that New York maintains free adult education classes which appellant and members of her class are encouraged to attend.5 Given the State's legitimate concern with promoting and safeguarding the intelligent use of the ballot, and given also New York's long experience with the process of integrating non-English-speaking residents into the mainstream of American life, I do not see how it can be said that this qualification for suffrage is unconstitutional. I would uphold the validity of the New York statute, unless the federal statute prevents that result, the question to which I now turn.
II.
The Morgan Cases (Nos. 847 and 877).
30
These cases involve the same New York suffrage restriction discussed above, but the challenge here comes not in the form of a suit to enjoin enforcement of the state statute, but in a test of the constitutionality of a federal enactment which declares that 'to secure the rights under the fourteenth amendment of persons educated in American-flag schools in which the predominant classroom language was other than English, it is necessary to prohibit the States from conditioning the right to vote of such persons on ability to read, write, understand, or interpret any matter in the English language.' Section 4(e) of the Voting Rights Act of 1965. Section 4(e) declares that anyone who has successfully completed six grades of schooling in an 'American-flag' school, in which the primary language is not English, shall not be denied the right to vote because of an inability to satisfy an English literacy test.6 Although the statute is framed in general terms, so far as has been shown it applies in actual effect only to citizens of Puerto Rican background, and the Court so treats it.
31
The pivotal question in this instance is what effect the added factor of a congressional enactment has on the straight equal protection argument dealt with above. The Court declares that since § 5 of the Fourteenth Amendment7 gives to the Congress power to 'enforce' the prohibitions of the Amendment by 'appropriate' legislation, the test for judicial review of any congressional determination in this area is simply one of rationality; that is, in effect, was Congress acting rationally in declaring that the New York statute is irrational? Although § 5 most certainly does give to the Congress wide powers in the field of devising remedial legislation to effectuate the Amendment's prohibition on arbitrary state action, Ex parte Commonwealth of Virginia, 100 U.S. 339, 25 L.Ed. 676. I believe the Court has confused the issue of how much enforcement power Congress possesses under § 5 with the distinct issue of what questions are appropriate for congressional determination and what questions are essentially judicial in nature.
32
When recognized state violations of federal constitutional standards have occurred, Congress is of course empowered by § 5 to take appropriate remedial measures to redress and prevent the wrongs. See Strauder v. West Virginia, 100 U.S. 303, 310, 25 L.Ed. 664. But it is a judicial question whether the condition with which Congress has thus sought to deal is in truth an infringement of the Constitution, something that is the necessary prerequisite to bringing the § 5 power into play at all. Thus, in Ex parte Virginia, supra, involving a federal statute making it a federal crime to disqualify anyone from jury service because of race, the Court first held as a matter of constitutional law that 'the Fourteenth Amendment secures, among other civil rights, to colored men, when charged with criminal offences against a State, an impartial jury trial, by jurors indifferently selected or chosen without discrimination against such jurors because of their color.' 100 U.S. at 345, 25 L.Ed. 676. Only then did the Court hold that to enforce this prohibition upon state discrimination, Congress could enact a criminal statute of the type under consideration. See also Clyatt v. United States, 197 U.S. 207, 25 S.Ct. 429, 49 L.Ed. 726, sustaining the constitutionality of the antipeonage laws, 14 Stat. 546, now 42 U.S.C. § 1994 (1964 ed.), under the Enforcement Clause of the Thirteenth Amendment.
33
A more recent Fifteenth Amendment case also serves to illustrate this distinction. In State of South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769, decided earlier this Term, we held certain remedial sections of this Voting Rights Act of 1965 constitutional under the Fifteenth Amendment, which is directed against deprivations of the right to vote on account of race. In enacting those sections of the Voting Rights Act the Congress made a detailed investigation of various state practices that had been used to deprive Negroes of the franchise. See 383 U.S., at 308—315, 86 S.Ct. at 808—812. In passing upon the remedial provisions, we reviewed first the 'voluminous legislative history' as well as judicial precedents supporting the basic congressional finding that the clear commands of the Fifteenth Amendment had been infringed by various state subterfuges. See 383 U.S., at 309, 329—330, 333—334, 86 S.Ct. at 808, 819, 821—822. Given the existence of the evil, we held the remedial steps taken by the legislature under the Enforcement Clause of the Fifteenth Amendment to be a justifiable exercise of congressional initiative.
34
Section 4(e), however, presents a significantly different type of congressional enactment. The question here is not whether the statute is appropriate remedial legislation to cure an established violation of a constitutional command, but whether there has in fact been an infringement of that constitutional command, that is, whether a particular state practice or, as here, a statute is so arbitrary or irrational as to offend the command of the Equal Protection Clause of the Fourteenth Amendment. That question is one for the judicial branch ultimately to determine. Were the rule otherwise, Congress would be able to qualify this Court's constitutional decisions under the Fourteenth and Fifteenth Amendments let alone those under other provisions of the Constitution, by resorting to congressional power under the Necessary and Proper Clause. In view of this Court's holding in Lassiter, supra, that an English literacy test is a permissible exercise of state supervision over its franchise, I do not think it is open to Congress to limit the effect of that decision as it has undertaken to do by § 4(e). In effect the Court reads § 5 of the Fourteenth Amendment as giving Congress the power to define the substantive scope of the Amendment. If that indeed be the true reach of § 5, then I do not see why Congress should not be able as well to exercise its § 5 'discretion' by enacting statutes so as in effect to dilute equal protection and due process decisions of this Court. In all such cases there is room for reasonable men to differ as to whether or not a denial of equal protection or due process has occurred, and the final decision is one of judgment. Until today this judgment has always been one for the judiciary to resolve.
35
I do not mean to suggest in what has been said that a legislative judgment of the type incorporated in § 4(e) is without any force whatsoever. Decisions on questions of equal protection and due process are based not on abstract logic, but on empirical foundations. To the extent 'legislative facts' are relevant to a judicial determination, Congress is well equipped to investigate them, and such determinations are of course entitled to due respect.8 In State of South Carolina v. Katzenbach, supra, such legislative findings were made to show that racial discrimination in voting was actually ocurring. Similarly, in Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258, and Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290, this Court upheld Title II of the Civil Rights Act of 1964 under the Commerce Clause. There again the congressional determination that racial discrimination in a clearly defined group of public accommodations did effectively impede interstate commerce was based on 'voluminous testimony,' 379 U.S., at 253, 85 S.Ct. at 355, which had been put before the Congress and in the context of which it passed remedial legislation.
36
But no such factual data provide a legislative record supporting § 4(e)9 by way of showing that Spanish-speaking citizens are fully as capable of making informed decisions in a New York election as are English-speaking citizens. Nor was there any showing whatever to support the Court's alternative argument that § 4(e) should be viewed as but a remedial measure designed to cure or assure against unconstitutional discrimination of other varieties, e.g., in 'public schools, public housing and law enforcement,' 384 U.S., p. 652, 86 S.Ct., p. 1724, to which Puerto Rican minorities might be subject in such communities as New York. There is simply no legislative record supporting such hypothesized discrimination of the sort we have hitherto insisted upon when congressional power is brought to bear on constitutionally reserved state concerns. See Heart of Atlanta Motel, supra; State of South Carolina v. Katzenbach, supra.
37
Thus, we have here not a matter of giving defendce to a congressional estimate, based on its determination of legislative facts, bearing upon the validity vel non of a statute, but rather what can at most be called a legislative announcement that Congress believes a state law to entail an unconstitutional deprivation of equal protection. Although this kind of declaration is of course entitled to the most respectful consideration, coming as it does from a concurrent branch and one that is knowledgeable in matters of popular political participation, I do not believe it lessens our responsibility to decide the fundamental issue of whether in fact the state enactment violates federal constitutional rights.
38
In assessing the deference we should give to this kind of congressional expression of policy, it is relevant that the judiciary has always given to congressional enactments a presumption of validity. The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 457—458, 53 U.S. 443, 13 L.Ed. 1058. However, it is also a canon of judicial review that state statutes are given a similar presumption, Butler v. Commonwealth of Pennsylvania 10 How. 402, 415, 51 U.S. 402, 13 L.Ed. 472. Whichever way this case is decided, one statute will be rendered inoperative in whole or in part, and although it has been suggested that this Court should give somewhat more deference to Congress than to a state legislature,10 such a simple weighing of presumptions is hardly a satisfying way of resolving a matter that touches the distribution of state and federal power in an area so sensitive as that of the regulation of the franchise. Rather it should be recognized that while the Fourteenth Amendment is a 'brooding omnipresence' over all state legislation, the substantive matters which it touches are all within the primary legislative competence of the States. Federal authority, legislative no less than judicial, does not intrude unless there has been a denial by state action of Fourteenth Amendment limitations, in this instance a denial of equal protection. At least in the area of primary state concern a state statute that passes constitutional muster under the judicial standard of rationality should not be permitted to be set at naught by a mere contrary congressional pronouncement unsupported by a legislative record justifying that conclusion.
39
To deny the effectiveness of this congressional enactment is not of course to disparage Congess' exertion of authority in the field of civil rights; it is simply to recognize that the Legislative Branch like the other branches of federal authority is subject to the governmental boundaries set by the Constitution. To hold, on this record, that § 4(e) overrides the New York literacy requirement seems to me tantamount to allowing the Fourteenth Amendment to swallow the State's constitutionally ordained primary authority in this field. For if Congress by what, as here, amounts to mere ipse dixit can set that otherwise permissible requirement partially at naught I see no reason why it could not also substitute its judgment for that of the States in other fields of their exclusive primary competence as well.
40
I would affirm the judgments in each of these cases.11
1
The full text of § 4(e) is as follows:
'(1) Congress hereby declares that to secure the rights under the fourteenth amendment of persons educated in American-flag schools in which the predominant classroom language was other than English, it is necessary to prohibit the States from conditioning the right to vote of such persons on ability to read, write, understand, or interpret any matter in the English language.
'(2) No person who demonstrates that he has successfully completed the sixth primary grade in a public school in, or a private school accredited by, any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico in which the predominant classroom language was other than English, shall be denied the right to vote in any Federal, State, or local election because of his inability to read, write, understand, or interpret any matter in the English language, except that in States in which State law provides that a different level of education is presumptive of literacy, he shall demonstrate that he has successfully completed an equivalent level of education in a public school in, or a private school accredited by, any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico in which the predominant classroom language was other than English.' 79 Stat. 439, 42 U.S.C. § 1973b(e) (1964 ed., Supp. I).
2
Article II, § 1, of the New York Constitution provides, in pertinent part:
'Notwithstanding the foregoing provisions, after January first, one thousand nine hundred twenty-two, no person shall become entitled to vote by attaining majority, by naturalization or otherwise, unless such person is also able, except for physical disability, to read and write English.'
Section 150 of the New York Election Law, McKinney's Consol.Laws, c. 17, provides, in pertinent part:
'* * * In the case of a person who became entitled to vote in this state by attaining majority, by naturalization or otherwise after January first, nineteen hundred twenty-two, such person must, in addition to the foregoing provisions, be able, except for physical disability, to read and write English. A 'new voter,' within the meaning of this article, is a person who, if he is entitled to vote in this state, shall have become so entitled on or after January first, nineteen hundred twenty-two, and who has not already voted at a general election in the state of New York after making proof of ability to read and write English, in the manner provided in section one hundred sixty-eight.'
Section 168 of the New York Election Law provides, in pertinent part:
'1. The board of regents of the state of New York shall make provisions for the giving of literacy tests.
'2. * * * But a new voter may present as evidence of literacy a certificate or diploma showing that he has completed the work up to and including the sixth grade of an approved elementary school or of an approved higher school in which English is the language of instruction or a certificate or diploma showing that he has completed the work up to and including the sixth grade in a public school or a private school accredited by the Commonwealth of Puerto Rico in which school instruction is carried on predominantly in the English language or a matriculation card issued by a college or university to a student then at such institution or a certificate or a letter signed by an official of the university or college certifying to such attendance.'
Section 168 of the Election Law as it now reads was enacted while § 4(e) was under consideration in Congress. See 111 Cong.Rec. 19376—19377. The prior law required the successful completion of the eighth rather than the sixth grade in a school in which the language of instruction was English.
3
This limitation on appellees' challenge to § 4(e), and thus on the scope of our inquiry, does not distort the primary intent of § 4(e). The measure as sponsored in the Senate by Senators Javits and Kennedy and in the House by Representatives Gilbert and Ryan, all of New York, for the explicit purpose of dealing with the disenfranchisement of large segments of the Puerto Rican population in New York. Throughout the congressional debate it was repeatedly acknowledged that § 4(e) had particular reference to the Puerto Rican population in New York. That situation was the almost exclusive subject of discussion. See 111 Cong.Rec. 11028, 11060—11074, 15666, 16235—16245, 16282—16283, 19192—19201, 19375—19378; see also Voting Rights, Hearings before Subcommittee No. 5 of the House Committee on the Judiciary on H.R. 6400, 89th Cong., 1st Sess., 100—101, 420—421, 508—517 (1965). The Solicitor General informs us in his brief to this Court, that in all probability the practical effect of § 4(e) will be limited to enfranchising those educated in Puerto Rican schools. He advises us that, aside from the schools in the Commonwealth of Puerto Rico, there are no public or parochial schools in the territorial limits of the United States in which the predominant language of instruction is other than English and which would have generally been attended by persons who are otherwise qualified to vote save for their lack of literacy in English.
4
Section 14(b) provides, in pertinent part:
'No court other than the District Court for the District of Columbia * * * shall have jurisdiction to issue * * * any restraining order or temporary or permanent injunction against the * * * enforcement of any provision of this Act or any action of any Federal officer or employee pursuant hereto.' 79 Stat. 445, 42 U.S.C. § 1973l(b) (1964 ed., Supp. I).
The Attorney General of the United States was initially named as the sole defendant. The New York City Board of Elections was joined as a defendant after it publicly announced its intention to comply with § 4(e); it has taken the position in these proceedings that § 4(e) is a proper exercise of congressional power. The Attorney General of the State of New York has participated as amicus curiae in the proceedings below and in this Court, urging § 4(e) be declared unconstitutional. The United States was granted leave to intervene as a defendant, 28 U.S.C. § 2403 (1964 ed.); Fed.Rule Civ.Proc. 24(a).
5
'Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.'
It is therefore unnecessary for us to consider whether § 4(e) could be sustained as an exercise of power under the Territorial Clause, Art. IV, § 3; see dissenting opinion of Judge McGowan below, 247 F.Supp., at 204; or as a measure to discharge certain treaty obligations of the United States, see Treaty of Paris of 1898, 30 Stat. 1754, 1759; United Nations Charter, Articles 55 and 56, 59 Stat. 1033; Art. I, § 8, cl. 18. Nor need we consider whether § 4(e) could be sustained insofar as it relates to the election of federal officers as an exercise of congressional power under Art. I, § 4, see Minor v. Happersett, 21 Wall. 162, 171, 22 L.Ed. 627; United States v. Classic, 313 U.S. 299, 315, 61 S.Ct. 1031, 1037, 85 L.Ed. 1368; Literacy Tests and Voter Requirements in Federal and State Elections, Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary on S. 480, S. 2750, and S. 2979, 87th Cong., 2d Sess., 302, 306 311 (1962) (brief of the Attorney General); nor whether § 4(e) could be sustained, insofar as it relates to the election of state officers, as an exercise of congressional power to enforce the clause guaranteeing to each State a republican form of government, Art. IV, § 4; Art. I, § 8, cl. 18.
6
Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169; Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675. See also United States v. Mississippi, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717; Louisiana v. United States, 380 U.S. 145, 151, 85 S.Ct. 817, 821, 13 L.Ed.2d 709; Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072; Pope v. Williams, 193 U.S. 621, 632 634, 24 S.Ct. 573, 575—576, 48 L.Ed. 817; Minor v. Happersett, 21 Wall. 162, 22 L.Ed. 627; cf. Burns v. Richardson, 384 U.S. 73, at 92, 86 S.Ct. 1286, at 1296, 16 L.Ed.2d 376; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506.
7
For the historical evidence suggesting that the sponsors and supporters of the Amendment were primarily interested in augmenting the power of Congress, rather than the judiciary, see generally Frantz, Congressional Power to Enforce the Fourteenth Amendment Against Private Acts, 73 Yale L.J. 1353, 1356—1357; Harris, The Quest for Equality, 33—56 (1960); tenBroek, The Antislavery Origins of the Fourteenth Amendment 187—217 (1951).
8
Senator Howard, in introducing the proposed Amendment to the Senate, described § 5 as 'a direct affirmative delegation of power to Congress,' and added:
'It casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are carried out in good faith, and that no State infringes the rights of persons or property. I look upon this clause as indispensable for the reason that it thus imposes upon Congress this power and this duty. It enables Congress, in case the States shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional enactment.' Cong. Globe, 39th Cong., 1st Sess., 2766, 2768 (1866).
This statement of § 5's purpose was not questioned by anyone in the course of the debate. Flack, The Adoption of the Fourteenth Amendment 138 (1908).
9
In fact, earlier drafts of the proposed Amendment employed the 'necessary and proper' terminology to describe the scope of congressional power under the Amendment. See tenBroek, The Antislavery Origins of the Fourteenth Amendment 187—190 (1951). The substitution of the 'appropriate legislation' formula was never thought to have the effect of diminishing the scope of this congressional power. See, e.g., Cong.Globe, 42d Cong., 1st Sess., App. 83 (Representative Bingham, a principal draftsman of the Amendment and the earlier proposals).
10
Contrary to the suggestion of the dissent, infra, 384 U.S. p. 668, 86 S.Ct. p. 1736, 16 L.Ed.2d p. 845, § 5 does not grant Congress power to exercise discretion in the other direction and to enact 'statutes so as in effect to dilute equal protection and due process decisions of this Court.' We emphasize that Congress' power under § 5 is limited to adopting measures to enforce the guarantees of the Amendment; § 5 grants Congress no power to restrict, abrogate, or dilute these guarantees. Thus, for example, an enactment authorizing the States to establish racially segregated systems of education would not be—as required by § 5—a measure 'to enforce' the Equal Protection Clause since that clause of its own force prohibits such state laws.
11
Cf. James Everard's Breweries v. Day, supra, which held that, under the Enforcement Clause of the Eighteenth Amendment, Congress could prohibit the prescription of intoxicating malt liquor for medicinal purposes even though the Amendment itself only prohibited the manufacture and sale of intoxicating liquors for beverage purposes. Cf. also the settled principle applied in the Shreveport Case (Houston, E. & W.T.R. Co. v. United States, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341), and expressed in United States v. Darby, 312 U.S. 100, 118, 61 S.Ct. 451, 459, 85 L.Ed. 609, that the power of Congress to regulate interstate commerce 'extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end * * *.' Accord, Heart of Atlanta Motel v. United States, 379 U.S. 241, 258, 85 S.Ct. 348, 358, 13 L.Ed.2d 258.
12
See, e.g., 111 Cong.Rec. 11061—11062, 11065—11066, 16240; Literacy Tests and Voter Requirements in Federal and State Elections, Senate Hearings, n. 5, supra, 507—508.
13
The principal exemption complained of is that for persons who had been eligible to vote before January 1, 1922. See n. 2, supra.
14
This evidence consists in part of statements made in the Constitutional Convention first considering the English literacy requirement, such as the following made by the sponsor of the measure: 'More precious even than the forms of government are the mental qualities of our race. While those stand unimpaired, all is safe. They are exposed to a single single danger, and that is that by constantly changing our voting citizenship through the wholesale, but valuable and necessary infusion of Southern and Eastern European races * * *. The danger has begun. * * * We should check it.' III New York State Constitutional Convention 3012 (Rev. Record 1916).
See also id., at 3015—3017, 3021—3055. This evidence was reinforced by an understanding of the cultural milieu at the time of proposal and enactment, spanning a period from 1915 to 1921—not one of the enlightened eras of our history. See generally Chafee, Free Speech in the United States 102, 237, 269—282 (1954 ed.). Congress was aware of this evidence. See, e.g., Literacy Tests and Voter Requirements in Federal and State Elections, Senate Hearings, n. 5, supra, 507—513; Voting Rights, House Hearings, n. 3, supra, 508—513.
15
Other States have found ways of assuring an intelligent exercise of the franchise short of total disenfranchisement of persons not literate in English. For example, in Hawaii, where literacy in either English or Hawaiian suffices, candidates' names may be printed in both languages, Hawaii Rev.Laws § 11—38 (1963 Supp.); New York itself already provides assistance for those exempt from the literacy requirement and are literate in no language, N.Y. Election Law, § 169; and, of course, the problem of assuring the intelligent exercise of the franchise has been met by those States, more than 30 in number, that have no literacy requirement at all, see e.g., Fla.Stat.Ann. §§ 97.061, 101.061 (1960) (form of personal assistance); New Mexico Stat.Ann. §§ 3—2 11, 3—3—13 (personal assistance for those literate in no language), §§ 3—3—7, 3—3—12, 3—2—41 (1953) (ballots and instructions authorized to be printed in English or Spanish). Section 4(e) does not preclude resort to these alternative methods of assuring the intelligent exercise of the franchise.
True, the statute precludes, for a certain class, disenfranchisement and thus limits the States' choice of means of satisfying a purported state interest. But our cases have held that the States can be required to tailor carefully the means of satisfying a legitimate state interest when fundamental liberties and rights are threatened, see, e.g., Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 780, 13 L.Ed.2d 675; Harper v. Virginia Board of Elections, 383 U.S. 663, 670, 86 S.Ct. 1079, 1083, 16 L.Ed.2d 169; Thomas v. Collins, 323 U.S. 516, 529—530, 65 S.Ct. 315, 322—323, 89 L.Ed. 430; Thornhill v. State of Alabama, 310 U.S. 88, 95—96, 60 S.Ct. 736, 740—741, 84 L.Ed. 1093; United States v. Carolene Products Co., 304 U.S. 144, 152—153, n. 4, 58 S.Ct. 778, 783—784, 82 L.Ed. 1234; Meyer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042; and Congress is free to apply the same principle in the exercise of its powers.
16
See, e.g., 111 Cong.Rec. 11060—11061, 15666, 16235. The record in this case includes affidavits describing the nature of New York's two major Spanish-language newspapers, one daily and one weekly, and its three full-time Spanish-language radio stations and affidavits from those who have campaigned in Spanish-speaking areas.
17
See, e.g., 111 Cong.Rec. 11061 (Senator Long of Louisiana and Senator Young), 11064 (Senator Holland), drawing on their experience with voters literate in a language other than English. See also an affidavit from Representative Willis of Louisiana expressing the view that on the basis of his thirty years' personal experience in politics he has 'formed a definite opinion that French-speaking voters who are illiterate in English generally have as clear a grasp of the issues and an understanding of the candidates, as do people who read and write the English language.'
18
See, e.g., 111 Cong.Rec. 11060—11061.
19
See Magruder, The Commonwealth Status of Puerto Rico, 15 U.Pitt.L.Rev. 1 (1953).
20
See, e.g., 111 Cong.Rec. 11060—11061, 11066, 11073, 16235. See Osuna, A History of Education in Puerto Rico (1949).
21
See, e.g., 111 Cong.Rec. 16235; Voting Rights, House Hearings, n. 3, supra, 362. See also Jones Act of 1917, 39 Stat. 953, conferring United States citizenship on all citizens of Puerto Rico.
1
The pertinent portions of the New York Constitution, Art. II, § 1, and statutory provisions are reproduced in the Court's opinion, ante, 384 U.S. pp. 644—645, 86 S.Ct. p. 1720, n. 2.
2
The Fifteenth Amendment forbids denial or abridgment of the franchise 'on account of race, color, or previous condition of servitude'; the Seventeenth deals with popular election of members of the Senate; the Nineteenth provides for equal suffrage for women; the Twenty-fourth outlaws the poll tax as a qualification for participation in federal elections.
3
The test is described in McGovney, The American Suffrage Medley 63 (1949) as follows: 'The examination is based upon prose compositions of about ten lines each, prepared by the personnel of the State Department of Education, designed to be of the level of reading in the sixth grade * * *. These are uniform for any single examination throughout the state. The examination is given by school authorities and graded by school superintendents or teachers under careful instructions from the central authority, to secure uniformity of grading as nearly as is possible.' The 1943 test, submitted by the Attorney General of New York as representative, is reproduced below:
NEW YORK STATE REGENTS LITERACY TEST
(To be filled in by the candidate in ink)
Write your name here...............................................
First name Middle initial Last name
Write your address here............................................
Write the date here................................................
Month Day Year
Read this and then write the answers to the questions
Read it as many times as you need to
The legislative branch of the National Government is called the Congress of the United States. Congress makes the laws of the Nation. Congress is composed of two houses. The upper house is called the Senate and its members are called Senators. There are 96 Senators in the upper house, two from each State. Each United States Senator is elected for a term of six years. The lower house of Congress is known as the House of Representatives. The number of Representatives from each state is determined by the population of that state. At present there are 435 members of the House of Representatives. Each Representative is elected for a term of two years. Congress meets in the Capital at Washington.
The answers to the following questions are to be taken from the above paragraph
1 How many houses are there in Congress?
2 What does Congress do?
3 What is the lower house of Congress called?
4 How many members are there in the lower house?
5 How long is the term of office of a United States Senator?
6 How many Senators are there from each state?
7 For how long a period are members of the House of Reprsentatives elected?
8 In what city does Congress meet?
4
There is no allegation of discriminatory enforcement, and the method of examination, see n. 3, supra, makes unequal application virtually impossible. McGovney has noted, op. cit. supra, at 62, that 'New York is the only state in the Union that both has a reasonable reading requirement and administers it in a manner that secures uniformity of application throughout the state and precludes discrimination, so far as is humanly possible.' See Camacho v. Rogers, D.C., 199 F.Supp. 155, 159—160.
5
See McKinney's Consolidated Laws of New York Ann., c. 16, Education Law, § 4605. See generally Handbook of Adult Education in the United States 455—465 (Knowles ed. 1960).
6
The statute makes an exception to its sixth-grade rule so that where state law 'provides that a different level of education is presumptive of literacy,' the applicant must show that he has completed 'an equivalent level of education' in the foreign-language United States school.
7
Section 5 of the Fourteenth Amendment states that 'The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.'
8
See generally Karst, Legislative Facts in Constitutional Litigation, 1960 The Supreme Court Review 75 (Kurland ed.); Alfange, The Relevance of Legislative Facts in Constitutional Law, 114 U.Pa.L.Rev. 637 (1966).
9
There were no committee hearings or reports referring to this section, which was introduced from the floor during debate on the full Voting Rights Act. See 111 Cong.Rec. 11027, 15666, 16234.
10
See Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv.L.Rev. 129, 154—155 (1893).
11
A number of other arguments have been suggested to sustain the constitutionality of § 4(e). These are referred to in the Court's opinion, 384 U.S. pp. 646—647, 86 S.Ct. p. 1721, n. 5. Since all of such arguments are rendered superfluous by the Court's decision and none of them is considered by the majority, I deem it unnecessary to deal with them save to say that in my opinion none of those contentions provides an adequate constitutional basis for sustaining the statute.
| 12
|
384 U.S. 563
86 S.Ct. 1698
16 L.Ed.2d 778
UNITED STATES, Appellant,v.GRINNELL CORPORATION et al. GRINNELL CORPORATION, Appellant, v. UNITED STATES. AMERICAN DISTRICT TELEGRAPH CO., Appellant, v. UNITED STATES. HOLMES ELECTRIC PROTECTIVE CO., Appellant, v. UNITED STATES. AUTOMATIC FIRE ALARM CO., Appellant, v. UNITED STATES.
Nos. 73—77.
Argued March 28 and 29, 1966.
Decided June 13, 1966.
[Syllabus from pages 563-565 intentionally omitted]
Daniel M. Friedman, Washington, D.C., for appellant in No. 73 and appellee in Nos. 74—77.
John F. Sonnett, New York City, for appellant in No. 74 and appellees in No. 73.
Macdonald Flinn, New York City, for appellant in No. 75 and appellees in No. 73.
John W. Drye, Jr., New York City, for appellant in No. 76 and appellees in No. 73.
J. Francis Hayden, New York City, for appellant in No. 77.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This case presents an important question under § 2 of the Sherman Act,1 which makes it an offense for any person to 'monopolize * * * any part of the trade or commerce among the several States.' This is a civil suit brought by the United States against Grinnell Corporation (Grinnell), American District Telegraph Co. (ADT), Holmes Electric Protective Co. (Holmes) and Automatic Fire Alarm Co. of Delaware (AFA). The District Court held for the Government and entered a decree. All parties appeal,2 the United States because it deems the relief inadequate and the defendants both on the merits and on the relief and on the ground that the District Court denied them a fair trial. We noted probable jurisdiction. 381 U.S. 910, 85 S.Ct. 1538, 14 L.Ed.2d 432.
2
Grinnell manufactures plumbing supplies and fire sprinkler systems. It also owns 76% of the stock of ADT, 89% of the stock of AFA, and 100% of the stock of Holmes.3 ADT provides both burglary and fire protection services; Holmes provides burglary services alone; AFA supplies only fire protection service. Each offers a central station service under which hazard-detecting devices installed on the protected premises automatically transmit an electric signal to a central station.4 The central station is manned 24 hours a day. Upon receipt of a signal, the central station, where appropriate, dispatches guards to the protected premises and notifies the police or fire department direct. There are other forms of protective services. But the record shows that subscribers to accredited central station service (i.e., that approved by the insurance underwriters) receive reductions in their insurance premiums that are substantially greater than the reduction received by the users of other kinds of protection service. In 1961 accredited companies in the central station service business grossed $65,000,000. ADT, Holmes, and AFA are the three largest companies in the business in terms of revenue: ADT (with 121 central stations in 115 cities) has 73% of the business; Holmes (with 12 central stations in three large cities) has 12.5%; AFA (with three central stations in three large cities) has 2%. Thus the three companies that Grinnell controls have over 87% of the business.
3
Over the years ADT purchased the stock or assets of 27 companies engaged in the business of providing burglar or fire alarm services. Holmes acquired the stock or assets of three burglar alarm companies in New York City using a central station. Of these 30, the officials of seven agreed not to engage in the protective service business in the area for periods ranging from five years to permanently. After Grinnell acquired control of the other defendants, the latter continued in their attempts to acquire central station companies—offers being made to at least eight companies between the years 1955 and 1961, including four of the five largest nondefendant companies in the business. When the present suit was filed, each of those defendants had outstanding an offer to purchase one of the four largest nondefendant companies.
4
In 1906, prior to the affiliation of ADT and Holmes, they made a written agreement whereby ADT transferred to Holmes its burglar alarm business in a major part of the Middle Atlantic States and agreed to refrain forever from engaging in that business in that area, while Holmes transferred to ADT its watch signal business and agreed to limit its activities to burglar alarm service and night watch service for financial institutions. While this agreement was modified several times and terminated in 1947, in 1961 Holmes still restricted its business to burglar alarm service and operated only in those areas which had been allocated to it under the 1906 agreement. Similarly, ADT continued to refrain from supplying burglar alarm service in those areas earlier allocated to Holmes.
5
In 1907 Grinnell entered into a series of agreements with the other defendant companies and with Automatic Fire Protection Co. to the following effect:
6
AFA received the exclusive right to provide central station sprinkler supervisory and waterflow alarm and automatic fire alarm service in New York City, Boston and Philadelphia, and agreed not to provide burglar alarm service in those cities or central station service elsewhere in the United States.
7
Automatic Fire Protection Co. obtained the exclusive right to provide central station sprinkler supervisory and waterflow alarm service everywhere else in the United States except for the three cities in which AFA received that exclusive right, and agreed not to engage in burglar alarm service.
8
ADT received the exclusive right to render burglar alarm and nightwatch service throughout the United States. (Under ADT's 1906 agreement with Holmes, however, it could not provide burglar alarm services in the areas for which it had given Holmes the exclusive right to do so.) It agreed not to furnish sprinkler supervisory and waterflow alarm service anywhere in the country and not to furnish automatic fire alarm service in New York City, Boston or Philadelphia (the three cities allocated to AFA). ADT agreed to connect to its central stations the systems installed by AFA and Automatic.
9
Grinnell agreed to furnish and install all sprinkler supervisory and waterflow alarm actuating devices used in systems that AFA and Automatic would install, and otherwise not to engage in the central station protection business.
10
AFA and Automatic received 25% of the revenue produced by the sprinkler supervisory waterflow alarm service which they provided in their respective territories; ADT and Grinnell received 50% and 25%, respectively, of the revenue which resulted from such service. The agreements were to continue until February 1954.
11
The agreements remained substantially unchanged until 1949 when ADT purchased all of Automatic Fire Protection Co.'s rights under it for $13,500,000. After these 1907 agreements expired in 1954, AFA continued to honor the prior division of territories; and ADT and AFA entered into a new contract providing for the continued sharing of revenues on substantially the same basis as before.5 In 1954 Grinnell and ADT renewed an agreement with a Rhode Island company which received the exclusive right to render central station service within Rhode Island at prices no lower than those of ADT and which agreed to use certain equipment supplied by Grinnell and ADT and to share its revenues with those companies. ADT had an informal agreement with a competing central station company in Washington, D.C., 'that we would not solicit each other's accounts.'
12
ADT over the years reduced its minimum basic rates to meet competition and renewed contracts at substantially increased rates in cities where it had a monopoly of accredited central station service. ADT threatened retaliation against firms that contemplated inaugurating central station service. And the record indicates that, in contemplating opening a new central station, ADT officials frequently stressed that such action would deter their competitors from opening a new station in that area.
13
The District Court found that the defendant companies had committed per se violations of § 1 of the Sherman Act as well as § 2 and entered a decree. 236 F.Supp. 244.
I.
14
The offense of monopoly under § 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident. We shall see that this second ingredient presents no major problem here, as what was done in building the empire was done plainly and explicitly for a single purpose. In United States v. E. I. du Pont De Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 1005, 100 L.Ed. 1264, we defined monopoly power as 'the power to control prices or exclude competition.' The existence of such power ordinarily may be inferred from the predominant share of the market. In American Tobacco Co. v. United States, 328 U.S. 781, 797, 66 S.Ct. 1125, 1133, 90 L.Ed. 1575, we said that 'over two-thirds of the entire domestic field of cigarettes, and * * * over 80% of the field of comparable cigarettes' constituted 'a substantial monopoly.' In United States v. Aluminum Co. of America, 2 Cir., 148 F.2d 416, 429, 90% of the market constituted monopoly power. In the present case, 87% of the accredited central station service business leaves no doubt that the congeries of these defendants have monopoly power—power which, as our discussion of the record indicates, they did not hesitate to wield—if that business is the relevant market. The only remaining question therefore is, what is the relevant market?
15
In case of a product it may be of such a character that substitute products must also be considered, as customers may turn to them if there is a slight increase in the price of the main product. That is the teaching of the du Pont case (supra, 351 U.S. at 395, 404, 76 S.Ct. at 1007, 1012), viz., that commodities reasonably interchangeable make up that 'part' of trade or commerce which § 2 protects against monopoly power.
16
The District Court treated the entire accredited central station service business as a single market and we think it was justified in so doing. Defendants argue that the different central station services offered are so diverse that they cannot under du Pont be lumped together to make up the relevant market. For example, burglar alarm services are not interchangeable with fire alarm services. They further urge that du Pont requires that protective services other than those of the central station variety be included in the market definition.
17
But there is here a single use, i.e., the protection of property, through a central station that receives signals. It is that service, accredited, that is unique and that competes with all the other forms of property protection. We see no barrier to combining in a single market a number of different products or services where that combination reflects commercial realities. To repeat, there is here a single basic service—the protection of property through use of a central service station—that must be compared with all other forms of property protection.
18
In § 2 cases under the Sherman Act, as in § 7 cases under the Clayton Act (Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510) there may be submarkets that are separate economic entities. We do not pursue that question here. First, we deal with services, not with products; and second, we conclude that the accredited central station is a type of service that makes up a relevant market and that domination or control of it makes out a monopoly of a 'part' of trade or commerce within the meaning of § 2 of the Sherman Act. The defendants have not made out a case for fragmentizing the types of services into lesser units.
19
Burglar alarm service is in a sense different from fire alarm service; from waterflow alarms; and so on. But it would be unrealistic on this record to break down the market into the various kinds of central station protective services that are available. Central station companies recognize that to compete effectively, they must offer all or nearly all types of service.6 The different forms of accredited central station service are provided from a single office and customers utilize different services in combination. We held in United States v. Philadelphia Nat. Bank, 374 U.S. 321, 356, 83 S.Ct. 1715, 1737, 10 L.Ed.2d 915, that 'the cluster' of services donoted by the term 'commercial banking' is 'a distinct line of commerce.' There is, in our view, a comparable cluster of services here. That bank case arose under § 7 of the Clayton Act where the question was whether the effect of a merger 'in any line of commerce' may be 'substantially to lessen competition.' We see no reason to differentiate between 'line' of commerce in the context of the Clayton Act and 'part' of commerce for purposes of the Sherman Act. See United States v. First Nat. Bank & Trust Co., 376 U.S. 665, 667—668, 84 S.Ct. 1033, 1034, 12 L.Ed.2d 1. In the § 7 national bank case just mentioned, services, not products in the mercantile sense, were involved. In our view the lumping together of various kinds of services makes for the appropriate market here as it did in the § 7 case.
20
There are, to be sure, substitutes for the accredited central station service. But none of them appears to operate on the same level as the central station service so as to meet the interchangeability test of the du Pont case. Nonautomatic and automatic local alarm systems appear on this record to have marked differences, not the low degree of differentiation required of substitute services as well as substitute articles.
21
Watchman service is far more costly and less reliable. Systems that set off an audible alarm at the site of a fire or burglary are cheaper but often less reliable. They may be inoperable without anyone's knowing it. Moreover, there is a risk that the local ringing of an alarm will not attract the needed attention and help. Proprietary systems that a customer purchases and operates are available; but they can be used only by a very large business or by government and are not realistic alternatives for most concerns. There are also protective services connected directly to a municipal police or fire department. But most cities with an accredited central station do not permit direct, connected service for private businesses. These alternate services and devices differ, we are told, in utility, efficiency, reliability, responsiveness, and continuity, and the record sustains that position. And, as noted, insurance companies generally allow a greater reduction in premiums for accredited central station service than for other types of protection.
22
Defendants earnestly urge that despite these differences, they face competition from these other modes of protection. They seem to us seriously to overstate the degree of competition, but we recognize that (as the District Court found) they 'do not have unfettered power to control the price of their services * * * due to the fringe competition of other alarm or watchmen services.' 236 F.Supp., at 254. What defendants overlook is that the high degree of differentiation between central station protection and the other forms means that for many customers, only central station protection will do. Though some customers may be willing to accept higher insurance rates in favor of cheaper forms of protection, others will not be willing or able to risk serious interruption to their businesses, even though covered by insurance, and will thus be unwilling to consider anything but central station protection.
23
The accredited, as distinguished from nonaccredited service, is a relevant part of commerce. Virtually the only central station companies in the status of the nonaccredited are those that have not yet been able to meet the standards of the rating bureau. The accredited ones are indeed those that have achieved, in the eyes of underwriters, superiorities that other central stations do not have. The accredited central station is located in a building of approved design, provided with an emergency lighting system and two alternate main power sources, manned constantly by at least a required minimum of operators, provided with a direct line to fire headquarters and, where possible, a direct line to a police station; and equipped with all the devices, circuits and equipment meeting the requirements of the underwriters. These standards are important as insurance carriers often require accredited central station service as a condition to writing insurance. There is indeed evidence that customers consider the unaccredited service as inferior.
24
We also agree with the District Court that the geographic market for the accredited central station service is national. The activities of an individual station are in a sense local as it serves, ordinarily, only that area which is within a radius of 25 miles. But the record amply supports the conclusion that the business of providing such a service is operated on a national level. There is national planning. The agreements we have discussed covered activities in many States. The inspection, certification and rate-making is largely by national insurers. The appellant ADT has a national schedule of prices, rates, and terms, though the rates may be varied to meet local conditions. It deals with multistate businesses on the basis of nationwide contracts. The manufacturing business of ADT is interstate. The fact that Holmes is more nearly local than the others does not save it, for it is part and parcel of the combine presided over and controlled by Grinnell.
25
As the District Court found, the relevant market for determining whether the defendants have monopoly power is not the several local areas which the individual stations serve, but the broader national market that reflects the reality of the way in which they built and conduct their business.
26
We have said enough about the great hold that the defendants have on this market. The percentage is so high as to justify the finding of monopoly. And, as the facts already related indicate, this monopoly was achieved in large part by unlawful and exclusionary practices. The restrictive agreements that pre-empted for each company a segment of the market where it was free of competition of the others were one device. Pricing practices that contained competitors were another. The acquisitions by Grinnell of ADT, AFA, and Holmes were still another. Grinnell long faced a problem of competing with ADT. That was one reason it acquired AFA and Holmes. Prior to settlement of its dispute and controversy with ADT, Grinnell prepared to go into the central station service business. By acquiring ADT in 1953, Grinnell eliminated that alternative. Its control of the three other defendants eliminated any possibility of an outbreak of competition that might have occurred when the 1907 agreements terminated. By those acquisitions it perfected the monopoly power to exclude competitors and fix prices.7
II.
27
The final decree enjoins the defendants in general terms from restraining trade or attempting or conspiring to restrain trade in this particular market, from further monopolizing, and attempting or conspiring to monopolize. The court ordered the alarm companies to file with the Department of Justice standard lists of prices and terms and every quotation to customers that deviated from those lists and enjoined the defendants from acquiring stock, assets, or business of any enterprise in the market. Grinnell was ordered to file, not later than April 1, 1966, a plan of divestiture of its stock in each of the other defendant companies. It was given the option either to sell the stock or distribute it to its stockholders or combine or vary those methods.8 The court further enjoined any of the defendants from employing in any capacity the President and Chairman of the Board of Grinnell, James D. Fleming. Both the Government and the defendants challenge aspects of the decree.
28
We start from the premise that adequate relief in a monopolization case should put an end to the combination and deprive the defendants of any of the benefits of the illegal conduct, and break up or render impotent the monopoly power found to be in violation of the Act. That is the teaching of our cases, notably Schine Chain Theatres v. United States, 334 U.S. 110, 128 129, 68 S.Ct. 947, 957, 92 L.Ed. 1245.
29
We largely agree with the Government's views on the relief aspect of the case. We start with ADT, which presently does 73% of the business done by accredited central stations throughout the country. It is indeed the keystone of the defendants' monopoly power. The mere dissolution of the combination through the divestiture by Grinnell of its interests in the other companies does not reach the root of the evil. In 92 of the 115 cities in which ADT operates there are no other accredited central stations. Perhaps some cities could not support more than one. Defendants recognized prior to trial that at least 13 cities can; the Government urged divestiture in 48 cities. That there should be some divestiture on the part of ADT seems clear; but the details of such divestiture must be determined by the District Court as the matter cannot be resolved on this record.
30
Two of the means by which ADT acquired and maintained its large share of the market are the requirement that subscribers sign five-year contracts and the retention by ADT of title to the protective services equipment installed on a subscriber's premises. On this record it appears that these practices constitute substantial barriers to competition and that relief against them is appropriate. The pros and cons are argued with considerable vehemence here.9 Again, we cannot resolve them on this record. The various aspects of this controversy must be explored by the District Court and suitable protective provisions included in the decree that deprive these two devices of the coercive power that they apparently have had towards restraining competition and creating a monopoly.
31
The Government proposed that the defendants be required to sell, on nondiscriminatory terms, any devices manufactured by them for use in furnishing central station service. It seems clear that if the competitors are to be able to compete effectively for the existing customers of the defendants when the present service contracts expire, they must be assured of replacement parts to maintain those systems.10
32
The Government urges visitation rights, that is, requiring reports, examining documents, and interviewing company personnel, a relief commonly granted for the purpose of determining whether a defendant has complied with an antitrust decree. See United States v. United States Gypsum Co., 340 U.S. 76, 95, 71 S.Ct. 160, 172, 95 L.Ed. 89. The District Court gave no explanation for its refusal to grant this relief.11 It is so important and customary a provision that the District Court should reconsider it.
33
Defendants urge and the Government concedes that the barring of Mr. Fleming from the employment of any of the defendants is unduly harsh and quite unnecessary on this record. While relief of that kind may be appropriate where the predatory conduct is conspicuous, we cannot see that any such case was made out on this record.
34
The Government objects, as do the defendants, to the broad and generalized terms of the restraining order. They properly point out, as we emphasized in Schine Chain Theatres v. United States, supra, 334 U.S. at 125—126, 68 S.Ct. at 955—956, that the precise practices found to have violated the Act should be specifically enjoined. On remand we suggest that that course be taken.
35
The defendants object to the requirements that Grinnell divest itself of its holdings in the three alarm company defendants, but we think that provision is wholly justified. Dissolution of the combination is essential as indicated by many of our cases, starting with Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 78, 31 S.Ct. 502, 523, 55 L.Ed. 619. The defendants object to that portion of the decree that bars them from acquiring interests in firms in the accredited central station business. But since acquisition was one of the methods by which the defendants acquired their market power and was the method by which Grinnell put the combination together, an injunction against the repetition of the practice seems fully warranted. The defendants further object to the requirement in the decree that the alarm company defendants report to the Department of Justice any deviation they make from their list prices. We make no comment on that because in view of the other extensive changes necessary in the decree, the District Court might well deem it to be unnecessary in the fashioning of the new decree. In other words, we leave that matter open, to rest finally in the discretion of the District Court.
III.
36
The defendants contend that Judge Wyzanski, who tried the case, was personally biased and prejudiced and should have been disqualified from sitting in the case, and that he denied them a fair trial. We think this point is without merit.
37
The complaint was filed in April 1961, the answers in July 1961. Shortly thereafter extensive taking of depositions began. The District Court in January 1963 directed that no depositions be taken after September 1, 1963. In response to an inquiry from the court both sides suggested that the trial be set no earlier than January 1964.
38
At a pretrial conference in December 1963, government counsel told the court that the parties had been trying to reach agreement on a consent decree but were far apart and asked how the court would like to handle the presentation of the evidence in the event a settlement was not reached. Grinnell's lawyer suggested that the next appropriate procedure would be a pretrial on the question of relief—a suggestion that the District Court construed as an invitation to the court to discuss the relief apart from the merits. The Government objected. The court then asked for a brief from each side setting forth its views on relief if the Government prevailed on the merits. In response to the court's statement that 'as I understand it, you want to find out what kind of relief I would be likely to allow if the government's case stood virtually uncontradicted,' Grinnell's counsel replied: 'That is what I had in mind, your Honor, yes.'
39
Thereupon the court set a day for such a hearing. At the next pretrial conference Grinnell's counsel stated that 'if your Honor would indicate the relief that might be appropriate in this case that would help both sides to come to a better understanding.'
Then the following colloquy occurred:
40
'THE COURT. I don't think it would help very much.
41
'MR. MCINERNEY. Well, your Honor, I think it would help both the plaintiff and the defendants to know what is really at stake here in this trial.
42
'THE COURT. I assure you that you would not be helped by anything I would say. You would do better to get together with the government rather than run the risk of what I would say from what I have seen. Let me just assure you of that. * * *'
43
The case was then set for trial on June 15, 1964. When Grinnell's counsel sought to argue further, the court stated: 'There is no use in discussing it with me. I have read enough to know that if I have to decide this case on what I have seen from the government you will not be in a position at this stage to agree to it.'
44
On June 3, 1964, defendants argued for a postponement of the trial, saying they needed more time. The court denied the motion. Then they argued that the relief issues to be tried be limited to those raised by the pleadings so as to eliminate what they considered to be extraneous issues raised by the Government. To that the court replied:
45
'I can't understand frankly why you don't realize that you have forced me to look at the documents in this case, which I dislike doing in advance of trial. You have invited me, therefore, into what I regard as, from your point of view, a rather undesirable situation. I think I made that clear at the beginning. I have told you that, forced by you to look, my views are more extreme than those of the government; and I have also made you realize that if I am required to make Findings and reach Conclusions I am opening up third-party suits that will make, in view of the size of the industry, the percentage of people involved higher than in the electrical cases.'
46
Shortly thereafter defendants filed a motion12 for the disqualification of Judge Wyzanski on the grounds of personal bias and prejudice.13
47
The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. Berger v. United States, 255 U.S. 22, 31, 41 S.Ct. 230, 232, 65 L.Ed. 481. Any adverse attitudes that Judge Wyzanski evinced toward the defendants were based on his study of the depositions and briefs which the parties had requested him to make. What he said reflected no more than his view that, if the facts were as the Government alleged, stringent relief was called for.
48
During the trial he repeatedly stated that he had not made up his mind on the merits. During the trial he ruled certain evidence to be irrelevant to the issues and when the lawyer persisted in offering it Judge Wyzanski said, 'Maybe you will persuade somebody else. And if you think so, all right. I just assure you it is a great ceremonial act, as far as I am concerned.' We do not read this statement as manifesting a closed mind on the merits of the case but consider it merely a terse way of repeating the previously stated ruling that this particular evidence was irrelevant.
49
We have examined all the other claims of the defendants made against Judge Wyzanski and find that the claim of bias and prejudice is not made out. Our discussion of the relief which he granted shows indeed that he was in several critical respects, too lenient with those who now charge him with bias and prejudice.
50
The judgment below is affirmed except as to the decree. We remand for further hearings on the nature of the relief consistent with the views expressed herein. It is so ordered.
51
Affirmed in part and remanded.
52
Mr. Justice HARLAN, dissenting in Nos. 73—77.
53
I cannot agree with the Court that the relevant market has been adequately proved. I do not dispute that a national market may be found even though immediate competition takes place only within individual communities, some of which are themselves natural monopolies. For a national monopoly of such local enterprises may still have serious long-term impact on competition and be vulnerable on its own plane to the antitrust laws. In the product market also the Court seems to me to make out a good enough case for lumping together the different kinds of central station protective service (CSPS). But I cannot agree that the facts so far developed warrant restricting the product market to accredited CSPS.
54
Because the ultimate issue is the effective power to control price and competition, this Court has always recognized that the market must include products or services 'reasonably interchangeable' with those of the alleged monopolist. United States v. E. I. du Pont De Nemours & Co., 351 U.S. 377, 395, 76 S.Ct. 994, 1007, 100 L.Ed. 1264. In this instance, there is no doubt that the accredited CSPS business does compete in some measure with many other forms of hazard protection: watchmen, local alarms, proprietary systems, telephone-connected services, unaccredited CSPS, direct-connected (to police and fire stations) systems, and so forth. The critical question, then, is the extent of competition from these rivals.
55
The Government and the majority have stressed that differences in cost, reliability and insurance discounts may disqualify a competing form of protection for a particular customer. For example, it is said that proprietary systems are too expensive for any but large companies and local alarms may go unanswered in some neighborhoods. But if in general a CSPS customer has a feasible alternative to CSPS, it does not much matter that other ones are foreclosed to him, nor that other CSPS customers have different second choices. From this record, it may well be that other forms of protection are each competitive enough with segments of the CSPS market so that in sum CSPS rarely has a monopoly position.
56
From the defense standpoint, there is substantial evidence showing that the defendants do feel themselves under pressure from other forms of protection, that they do compete for customers, and that they do lower prices even in areas where no CSPS competition is present. This concrete evidence of market behavior seems to me to rank higher than the kind of inference proof heavily relied on by the Government—physical differences between competing forms of protection, self-advertising claims of CSPS companies that they represent a superior service and varying insurance discounts. Given that the burden of proof rests upon the Government, the record leaves me with such misgivings as to the validity of the District Court's findings on this score that I am not prepared to agree that the Government has made the showing of market domination that the law demands before a business is sundered.
57
At the same time the case must be recognized as a close one, and I am not ready to say at this stage that the findings and conclusions of the District Court might not be supportable. All things considered, I join with my Brothers Fortas and Stewart to the extent of voting to remand the case for further proceedings so that new findings can be made as to the relevant product market. This course seems to me the more appropriate in light of the fact that because of the Expediting Act, 15 U.S.C. § 29 (1964 ed.), we have not had the benefit of any intermediate appellate sifting of this record. In view of the disposition I propose, I do not consider any of the other questions in the case.
58
Mr. Justice FORTAS, with whom Mr. Justice STEWART joins, dissenting in Nos. 73 and 77.
59
I agree that the judgment below should be remanded, but I do not agree that the remand should be limited to reshaping the decree. Because I believe that the definition of the relevant market here cannot be sustained, I would reverse and remand for a new determination of this basic issue, subject to proper standards.
60
We have here a case under both § 1 and § 2 of the Sherman Act, which proscribe combinations in restraint of trade, and monopolies and attempts to monopolize. The judicial task is not difficult to state: Does the record show a combination in restraint of trade or a monopoly or attempt to monopolize? If so, what are its characteristics, scope and effect? And, finally, what is the appropriate remedy for a court of equity to decree?
61
Each of these inquires depends upon two basic referents: definition of the geographical area of trade or commerce restrained or monopolized, and of the products or services involved. In § 1 cases this problem ordinarily presents little difficulty because the combination in restraint of trade itself delineates the 'market' with sufficient clarity to support the usual injunctive form of relief in those cases. See, e.g., United States v. Griffith, 334 U.S. 100, 68 S.Ct. 941, 92 L.Ed. 1236. In the present case, however, the essence of the offense is monopolization, achieved or attempted, and the major relief is divestiture. For these purposes, 'market' definition is of the essence, just as in § 7 cases1 the kindred definition of the 'line of commerce' is fundamental. We must define the area of commerce that is allegedly engrossed before we can determine its engrossment; and we must define it before a decree can be shaped to deal with the consequences of the monopoly, and to restore or produce competition. See United States v. E. I. du Pont De Nemours & Co. (the Cellophane Case), 351 U.S. 377, 389—396, 76 S.Ct. 994, 1003—1008, 100 L.Ed. 1264; United States v. Aluminum Co. of America, 148 F.2d 416 (C.A.2d Cir. 1945).
62
In § 2 cases, the search for 'the relevant market' must be undertaken and pursued with relentless clarity. It is, in essence, an economic task put to the uses of the law. Unless this task is well done, the results will be distorted in terms of the conclusion as to whether the law has been violated and what the decree should contain.
63
In this case, the relevant geographical and product markets have not been defined on the basis of the economic facts of the industry concerned. They have been tailored precisely to fit defendants' business. The Government proposed and the trial court concluded that the relevant market is not the business of fire protection, or burglary protection, or protection against waterflow, etc., or all of these together. It is not even the business of furnishing these from a central location. It is the business, viewed nationally, of supplying 'insurance accredited central station protection services.' (CSPS)—that is, fire, burglary and other kinds of protection furnished from a central station which is accredited by insurance companies. The business of defendants fits neatly into the product and geographic market so defined. In fact, it comes close to filling the market so defined.2 This Court has now approved this Procrustean definition.
64
The geographical market is defined as nationwide. But the need and the service are intensely local—more local by far, for example, than the market which this Court found to be local in United States v. Philadelphia Nat. Bank, 374 U.S. 321, 357—362, 83 S.Ct. 1715, 1738—1740, 10 L.Ed.2d 915.3 The premises protected do not travel. They are fixed locations. They must be protected where they are. Protection must be provided on the spot. It must be furnished by local personnel able to bring help to the scene within minutes. Even the central stations can provide service only within a 25-mile radius. Where the tenants of the premises turn to central stations for this service, they must make their contracts locally with the central station and purchase their services from it on the basis of local conditions.
65
But because these defendants, the trial court found, are connected by stock ownership, interlocking management and some degree of national corporate direction, and because there is some national participation in selling as well as national financing, advertising, purchasing of equipment, and the like,4 the court concluded that the competitive area to be considered is national. This Court now affirms that conclusion.
66
This is a non sequitur. It is not permissible to seize upon the nationwide scope of defendants' operation and to bootstrap a geographical definition of the market from this. The purpose of the search for the relevant geographical market is to find the area or areas to which a potential buyer may rationally look for the goods or services that he seeks. The test, as this Court said in United States v. Philadelphia Nat. Bank, is 'the geographic structure of supplier-customer relations,' 374 U.S. 321, 357, 83 S.Ct. 1715, 1738, quoting Kaysen & Turner, Antitrust Policy 102 (1959). And, as Mr. Justice Clark put it in Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 327, 81 S.Ct. 623, 628, 5 L.Ed.2d 580, the definition of the relevant market requires 'CAREFUL SELECTION OF THE MARKET AREA IN which the seller operates, and to which the purchaser can practicably turn for supplies.'5 The central issue is where does a potential buyer look for potential suppliers of the service—what is the geographical area in which the buyer has, or, in the absence of monopoly, would have, a real choice as to price and alternative facilities? This depends upon the facts of the market place, taking into account such economic factors as the distance over which supplies and services may be feasibly furnished, consistently with cost and functional efficiency.
67
The incidental aspects of defendants' business which the court uses cannot control the outcome of this inquiry. They do not measure the market area in which buyer and sellers meet. They have little impact upon the ascertainment of the geographical areas in which the economic and legal questions must be answered: have defendants 'monopolized' or 'restrained' trade; have they eliminated or can they eliminate competitors or prevent or obstruct new entries into the business; have they controlled or can they control price for the services? These are the issues; and, in defendants' business, a finding that the 'relevant market' is national is nothing less than a studied failure to assess the effect of defendants' position and practices in the light of the competition which exists, or could exist, in economically defined areas—in the real world.
68
Here, there can be no doubt that the correct geographic market is local. The services at issue are intensely local: they can be furnished only locally. The business as it is done is local not nationwide. If, as might well be the case on this record, defendants were found to have violated the Sherman Act in a number of these local areas, a proper decree, directed to those markets, as well as to general corporate features relevant to the condemned practices, could be fashioned. On the other hand, a gross definition of the market as nationwide leads to a gross, nationwide decree which does not address itself to the realities of the market place. That is what happened here: The District Court's finding that the market was nationwide logically led it to a decree which operated on the only national aspect of the situation, the parent company nexus, instead of on the economically realistic areas—the local situations. This Court now directs the trial court to require 'some (unspecified) divestiture' locally by the alarm companies. This is a recognition of the economic reality that the relevant competitive areas are local. In plain terms, the Court's direction to the trial court means a 'market-by-market' analysis for the purpose of breaking up defendants' monopoly position and creating competitors and competition wherever feasible in particular cities. In my view, however, by so directing, the Court implies that which it does not command: that the case should be reconsidered at the trial court level because of the improper standard it used to define the relevant geographic markets.
69
The trial court's definition of the 'product' market even more dramatically demonstrates that its action has been Procrustean—that it has tailored the market to the dimensions of the defendants. It recognizes that a person seeking protective services has many alternative sources. It lists 'watchmen, watchdogs, automatic proprietary systems confined to one site, (often, but not always), alarm systems connected with some local police or fire station, often unaccredited CSPS (central station protective services), and often accredited CSPS.' The court finds that even in the same city a single customer seeking protection for several premises may 'exercise its option' differently for different locations. It may choose accredited CSPS for one of its locations and a different type of service for another.
70
But the court isolates from all of these alternatives only those services in which defendants engage. It eliminates all of the alternative sources despite its conscientious enumeration of them. Its definition of the 'relevant market' is not merely confined to 'central station' protective services, but to those central station protective services which are 'accredited' by insurance companies.
71
There is no pretense that these furnish peculiar services for which there is no alternative in the market place, on either a price or a functional basis. The court relies solely upon its finding that the services offered by accredited central stations are of better quality, and upon its conclusion that the insurance companies tend to give 'noticeably larger' discounts to policyholders who use accredited central station protective services. This Court now approves this strange red-haired, bearded, one-eyed man-with-a-limp classification.
72
The unreality of the trial court's market definition may best be illustrated by an example. Consider the situation of a retail merchant in Pittsburgh who wishes to protect his store against burglary. The Holmes Electric Protective Company, a subsidiary of Grinnell, operates an accredited central station service in Pittsburgh. It provides only burglary protection.
73
The gerrymandered market definition approved today totally excludes from the market consideration of the availability in Pittsburgh of cheaper but somewhat less reliable local alarm systems, or of more expensive (although the expense is reduced by greater insurance discounts) watchman service, or even of unaccredited central station service which virtually duplicates the Holmes service.
74
Instead, and in the name of 'commercial realities,' we are instructed that the 'relevant market'—which totally excludes these locally available alternatives—requires us to look only to accredited central station service, and that we are to include in the 'market' central stations which do not furnish burglary protection and even those which serve such places as Boston and Honolulu.6
75
Moreover, we are told that the 'relevant market' must assume this strange and curious configuration despite evidence in the record and a finding of the trial court that 'fringe competition' from such locally available alternatives as watchmen, local alarm systems, proprietary systems, and unaccredited central stations has, in at least 20 cities, forced the defendants to operate at a 'loss' even though defendants have a total monopoly in these cities of the 'market'—namely, the 'accredited central station protective services.' And we are led to this odd result even though there is in the record abundant evidence that customers switch from one form of property protection to another, and not always in the direction of accredited central station service.
76
I believe this approach has no justification in economics, reason or law. It might be supportable if it were found that the accredited central stations offer services which are unique in the sense that potential buyers—or at least a substantial, identifiable part of the trade—look only to them for the services in question, and that neither cost, type, quality of service nor other factors bring competing services into the market. The findings here and the record do not permit this conclusion.
77
The Government's market definition, accepted by the trial court, is a distortion which inevitably leads to a superficial and distorted results even in the hands of a highly skilled judge. As this Court held in Brown Shoe, supra, the 'reasonable interchangeability of use or the cross-elasticity of demand,' determines the boundaries of a product market. 370 U.S., at 325, 82 S.Ct., at 1523. See also the Cellophane Case, 351 U.S., at 380, 76 S.Ct., at 998. In plain language, this means that the court should have defined the relevant market here to include all services which, in light of geographic availability, price and use characteristics, are in realistic rivalry for all or some part of the business of furnishing protective services to premises. In the present situation, however, the court's own findings show that practical alternatives are available to potential users—although they vary from market to market and possibly from user to user. These have been arbitrarily excluded from the court's definition.
78
I do not suggest that wide disparities in quality, price and customer appeal could never affect the definition of the market. But this follows only where the disparities are so great that they create separate and distinct categories of buyers and sellers. The record here and the findings do not approach this standard. They fall far short of justifying the narrowing of the market as practiced here. I need refer only to the exclusion of non-accredited central stations, which the court seeks to justify by reference to differentials in insurance discounts. These differentials may indeed affect the relative cost to the consumer of the competing modes of protection. But, in the absence of proof that they result in eliminating the competing services from the category of those to which the purchaser 'can practicably turn' for supplies,7 they do not justify such total exclusion. This sort of exclusion of the supposedly not-quite-so-attractive service from the basic definition of the kinds of business and service against which defendants' activity will be measured, is entirely unjustified on this record.8
79
The importance of this kind of truncated market definition vividly appears if we are to say, as the trial court here held, that if defendant has so large a fraction of the market as to constitute a 'predominant' share, a rebuttable presumption of monopolization follows. The fraction depends upon the denominator (the 'market') as well as the numerator (the defendants' volume). Clearly, this 'presumption' is unwarranted unless the 'market' is defined to include all competitors. The contrary is not supported by this Court's decisions in either the Cellophane Case, supra, or United States v. E. I. du Pont De Nemours & Co. (General Motors), 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057. The latter case defined the market in terms of the total products which could be used for the defined purposes: automobile fabrics and finishes. This embraces the total range of options for customers seeking these products. On the contrary, as the record here shows and as the findings, candidly read, imply, substantial options exist for services other than through accredited central stations providing protective services. Those options, whether for all or a part of the services in issue, must be included in the assessment of the market.
80
In the opinion which this Court hands down today, there is considerable discussion of defendants' argument that the market should be 'broken down' by different type of service: e.g., Burglar protection, fire protection, etc. The Court rejects this on the ground that it is appropriate to evaluate a 'cluster' of services as such. It points to Philadelphia Nat. Bank, supra, for support for its approach. In that case, Mr. Justice Brennan's opinion for the Court carefully set out the distinctive characteristics of banking services: that some of these services (e.g., checking accounts) are virtually free of competition from other types of institutions, and that other services are distinctive in cost or other characteristics. 374 U.S., at 356—357, 83 S.Ct., at 1737—1738. See also United States v. First Nat. Bank, 376 U.S. 665, 668, 84 S.Ct. 1033, 1034, 12 L.Ed.2d 1 (per Douglas, J.). Similarly, in United States v. Paramount Pictures, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260, and International Boxing Club of N.Y. v. United States, 358 U.S. 242, 249—252, 79 S.Ct. 245, 249—251, 3 L.Ed.2d 270, 'first-run' moving pictures and championship boxing matches were held sufficiently distinctive in terms of demand in the market place to warrant consideration as separate markets.
81
But no such distinctiveness exists here. As I have discussed, neither this record nor the trial court's findings show either a distinctive demand or a separable market for 'insurance accredited central station protective services.' The contrary is evident. None of the services furnished by accredited central stations is unique, as I have discussed. Nor is there even a common or predominant 'cluster' of services offered by the central stations. One of the defendants, Holmes, is engaged only in the burglary alarm business. Another, AFA, furnishes only fire and waterflow service. Only ADT among the defendants makes available to its customers the full 'cluster.'
82
I do not mean to suggest that the Government must prove its case, service by service. But in defining the market, individual services, even if furnished in isolation, ought to be specified and here, as distinguished from the conclusion impelled by the circumstances in Philadelphia Nat. Bank, supra, competitors for individual services ought to be taken into account.
83
I do not intend by any of the foregoing to suggest that, on this record, the relief granted by the trial court and the substantially more drastic relief ordered by this Court would necessarily be unjustified. It is entirely possible that monopoly or attempt to monopolize may be found—and perhaps found with greater force—in local situations. Relief on a pervasive, system-wide, national basis might follow, as decreed by the trial court, as well as divestiture in appropriate local situations, as directed by this Court. It is impossible, I submit, to make these judgments on the findings before us because of the distortion due to an incorrect and unreal definition of the 'relevant market.' Now, because of this Court's mandate, the market-by-market inquiry must begin for purposes of the decree. But this should have been the foundation of judgment, not its superimposed conclusion. This inquiry should—in my opinion, it must—take into account the total economic situation—all of the options available to one seeking protection services. It should not be limited to central stations, and certainly not to 'insurance accredited central station protective services' which this Court sanctions as the relevant market. Since I am of the opinion that defendants and the courts are entitled to a reappraisal of the liability consequences as well as the appropriate provisions of the decree on the basis of a sound definition of the market, I would reverse and remand for these purposes.
1
26 Stat. 209, as amended, 15 U.S.C. § 2 (1964 ed.).
2
Expediting Act § 2, 32 Stat. 823, as amended, 15 U.S.C. § 29 (1964 ed.); United States v. Loew's, Inc., 371 U.S. 38, 83 S.Ct. 97, 9 L.Ed.2d 11.
3
These are the record figures. Since the time of the trial, Grinnell's holdings have increased. Counsel for Grinnell has advised this Court that Grinnell now holds 80% of ADT's stock and 90% of the stock of AFA.
4
Among the various central station services offered are the following:
(1) automatic burglar alarms;
(2) automatic fire alarms;
(3) sprinkler supervisory service (any malfunctions in the fire sprinkler system—e.g., changes in water pressure, dangerously low water temperatures, etc.—are reported to the central station); and
(4) watch signal service (night watchmen, by operating a key-triggered device on the protected premises, indicate to the central station that they are making their rounds and that all is well; the failure of a watchman to make his electrical report alerts the central station that something may be amiss).
5
In 1959, ADT complained that AFA's share of the revenues was excessive. AFA replied, in a letter to the president of Grinnell (which by that time controlled both ADT and AFA), that its share was just compensation for its continued observance of the service and territorial restrictions: '(T)he geographic restrictions placed upon us plus the requirement that we confine our activities to sprinkler and fire alarm services exclusively, since 1907 and presumably into the future, has definitely retarded our expansion in the past to the benefit of ADT growth. * * * (AFA's) contribution must also include the many things that helped make ADT big.' (Emphasis added.)
6
Thus, of the 38 nondefendant firms operating a central service station protective service in the United States in 1961, 24 offered all of the following services: automatic fire alarm; waterflow alarm and sprinkler supervision; watchman's reporting and manual fire alarm; and burglar alarm. Of the other firms, 11 provided no watchman's reporting and manual fire alarm service; six provided no automatic fire alarm service; and two offered no sprinkler supervisory and waterflow alarm service. Moreover, of the 14 firms not providing the full panoply of services, 10 lacked only one of the above-described services. Appellant ADT's assertion that 'very few accredited central stations furnish the full variety of services' is flatly contradicted by the record.
7
Since the record clearly shows that this monopoly power was consciously acquired, we have no reason to reach the further position of the District Court that once monopoly power is shown to exist, the burden is on the defendants to show that their dominance is due to skill, acumen, and the like.
8
Although the Government originally urged that the decree was inadequate as to divestiture in that it permitted Grinnell to distribute the stock of the other companies to Grinnell's shareholders, it has abandoned that point in this Court.
9
Specifically, the areas of disagreement are: (1) Defendants urge that barring them from offering five-year contracts would put them at a competitive disadvantage vis-a -vis nondefendant firms; the Government responds that since they violated the law, they may properly be subjected to restrictions not borne by others. See United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 723—724, 64 S.Ct. 805, 813—814, 88 L.Ed. 1024. (2) Some customers of defendants may wish to have long-term contracts; the Government responds that this may be explored on remand. (3) There is some dispute as to whether, if the central station company cannot retain title to the equipment it installs, the insurance companies will accredit the system. This, too, is a proper subject for inquiry on remand.
10
Prior to trial, the defendants agreed that this would be an appropriate provision in a decree were the Government to prevail in all its claims of antitrust violations. Although defendants now maintain that this pretrial discussion was 'settlement talk,' that earlier concession is a relevant factor that the District Judge can properly take into account on remand.
11
This provision, too, gained pretrial acceptance. See n. 10, supra.
12
28 U.S.C. § 144 (1964 ed.) provides in relevant part:
'Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.'
13
Judge Wyzanski referred the question of his disqualification to Chief Judge Woodbury of the Court of Appeals for the First Circuit who after hearing oral argument held that no case of bias and prejudice had been made out under § 144.
1
United States v. Continental Can Co., 378 U.S. 441, 447 458, 84 S.Ct. 1738, 1741—1747, 12 L.Ed.2d 953; United States v. Alcoa, 377 U.S. 271, 273—277, 84 S.Ct. 1283, 1285—1287, 12 L.Ed.2d 314; United States v. Philadelphia Nat. Bank, 374 U.S. 321, 356, 83 S.Ct. 1715, 1737, 10 L.Ed.2d 915; Brown Shoe Co. v. United States, 370 U.S. 294, 324, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510.
2
The defendants constitute 87% of the market as defined. One of the defendants alone, ADT, has 73%.
3
See also United States v. First Nat. Bank, 376 U.S. 665, 668, 84 S.Ct. 1033, 1034, 12 L.Ed.2d 1 (per Douglas, J.); American Crystal Sugar Co. v. Cuban-American Sugar Co., 152 F.Supp. 387, 398 (D.C.S.D.N.Y.1957), aff'd, 259 F.2d 524 (C.A.2d Cir. 1958).
4
There is a danger that this Court's opinion, ante, at 575-576, will be read as somewhat overstating the case. There is neither finding nor record to support the implication that rates are to any substantial extent fixed on a nationwide basis, or that there are nationwide contracts with multi-state businesses in any significant degree, or that insurers inspect or certify central stations on a nationwide basis.
5
See also Brown Shoe Co. v. United States, 370 U.S. 294, 336—337, 82 S.Ct. 1502, 8 L.Ed.2d 510.
6
None of the stations operated by defendant Automatic Fire Alarm Company offers burglary protection, just as none of Holmes' stations protects against the risk of fire.
7
Tampa Electric Co. v. Nashville Coal Co., 365 U.S., at 327, 81 S.Ct., at 627.
8
The example used by the court in its findings is illuminating and disturbing. In explanation of its narrow market definition, the court says that the diference between the accredited central station protective services and all others 'could be compared' to the difference between a compact six-cylinder car and a chauffeur-driven sedan. It is probably true that the degree of direct competition between luxury automobiles and compacts is slight, but it is by no means as clear-cut as the trial court seems to suggest. The question would require careful analysis in light of the total facts and issues. For example, if the antitrust problem at hand involved an acquisition of the business of a manufacturer of compacts by a maker of luxury cars, it is by no means inconceivable that sufficient competitive overlap would be found to place both products in the 'relevant market.'
| 78
|
384 U.S. 436
86 S.Ct. 1602
16 L.Ed.2d 694
Ernesto A. MIRANDA, Petitioner,v.STATE OF ARIZONA. Michael VIGNERA, Petitioner, v. STATE OF NEW YORK. Carl Calvin WESTOVER, Petitioner, v. UNITED STATES. STATE OF CALIFORNIA, Petitioner, v. Roy Allen STEWART.
Nos. 759—761, 584.
Argued Feb. 28, March 1 and 2, 1966.
Decided June 13, 1966.
Rehearing Denied No. 584 Oct. 10, 1966.
See 87 S.Ct. 11.
No. 759:
[Syllabus from pages 436-437 intentionally omitted]
John J. Flynn, Phoenix, Ariz., for petitioner.
Gary K. Nelson, Phoenix, Ariz., for respondent.
Telford Taylor, New York City, for State of New York, as amicus curiae, by special leave of Court. (Also in Nos. 584, 760, 761 and 762)
Duane R. Nedrud, for National District Attorneys Ass'n, as amicus curiae, by special leave of Court. (Also in Nos. 760, 762 and 584)
No. 760:
Victor M. Earle, III, New York City, for petitioner.
William I. Siegel, Brooklyn, for respondent.
No. 761:
F. Conger Fawcett, San Francisco, Cal., for petitioner.
Sol. Gen. Thurgood Marshall, for respondent.
No. 584:
Gorden Ringer, Los Angeles, Cal., for petitioner.
William A. Norris, Los Angeles, Cal., for respondent.
[Amicus Curiae intentionally omitted]
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which accure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.
2
We dealt with certain phases of this problem recently in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). There, as in the four cases before us, law enforcement officials took the defendant into custody and interrogated him in a police station for the purpose of obtaining a confession. The police did not effectively advise him of his right to remain silent or of his right to consult with his attorney. Rather, they confronted him with an alleged accomplice who accused him of having perpetrated a murder. When the defendant denied the accusation and said 'I didn't shoot Manuel, you did it,' they handcuffed him and took him to an interrogation room. There, while handcuffed and standing, he was questioned for four hours until he confessed. During this interrogation, the police denied his request to speak to his attorney, and they prevented his retained attorney, who had come to the police station, from consulting with him. At his trial, the State, over his objection, introduced the confession against him. We held that the statements thus made were constitutionally inadmissible.
3
This case has been the subject of judicial interpretation and spirited legal debate since it was decided two years ago. Both state and federal courts, in assessing its implications, have arrived at varying conclusions.1 A wealth of scholarly material has been written tracing its ramifications and underpinnings.2 Police and prosecutor have speculated on its range and desirability.3 We granted certiorari in these cases, 382 U.S. 924, 925, 937, 86 S.Ct. 318, 320, 395, 15 L.Ed.2d 338, 339, 348, in order further to explore some facets of the problems, thus exposed, of applying the privilege against self-incrimination to in-custody interrogation, and to give concrete constitutional guidelines for law enforcement agencies and courts to follow.
4
We start here, as we did in Escobedo, with the premise that our holding is not an innovation in our jurisprudence, but is an application of principles long recognized and applied in other settings. We have undertaken a thorough re-examination of the Escobedo decision and the principles it announced, and we reaffirm it. That case was but an explication of basic rights that are enshrined in our Constitution—that 'No person * * * shall be compelled in any criminal case to be a witness against himself,' and that 'the accused shall * * * have the Assistance of Counsel' rights which were put in jeopardy in that case through official overbearing. These precious rights were fixed in our Constitution only after centuries of persecution and struggle. And in the words of Chief Justice Marshall, they were secured 'for ages to come, and * * * designed to approach immortality as nearly as human institutions can approach it,' Cohens v. Commonwealth of Virginia, 6 Wheat. 264, 387, 5 L.Ed. 257 (1821).
5
Over 70 years ago, our predecessors on this Court eloquently stated:
6
'The maxim 'Nemo tenetur seipsum accusare,' had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which (have) long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, (were) not uncommon even in England. While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment.' Brown v. Walker, 161 U.S. 591, 596 597, 16 S.Ct. 644, 646, 40 L.Ed. 819 (1896).
7
In stating the obligation of the judiciary to apply these constitutional rights, this Court declared in Weems v. United States, 217 U.S. 349, 373, 30 S.Ct. 544, 551, 54 L.Ed. 793 (1910):
8
'* * * 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 importent and lifeless formulas. Rights declared in words might be lost in reality. And this has been recognized. The meaning and vitality of the Constitution have developed against narrow and restrictive construction.'
9
This was the spirit in which we delineated, in meaningful language, the manner in which the constitutional rights of the individual could be enforced against overzealous police practices. It was necessary in Escobedo, as here, to insure that what was proclaimed in the Constitution had not become but a 'form of words,' Silverthorn Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920), in the hands of government officials. And it is in this spirit, consistent with our role as judges, that we adhere to the principles of Escobedo today.
10
Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.4 As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.
1.
11
The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way. In each, the defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. In none of these cases was the defendant given a full and effective warning of his rights at the outset of the interrogation process. In all the cases, the questioning elicited oral admissions, and in three of them, signed statements as well which were admitted at their trials. They all thus share salient features—incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights.
12
An understanding of the nature and setting of this in-custody interrogation is essential to our decisions today. The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado. From extensive factual studies undertaken in the early 1930's, including the famous Wickersham Report to Congress by a Presidential Commission, it is clear that police violence and the 'third degree' flourished at that time.5 In a series of cases decided by this Court long after these studies, the police resorted to physical brutality—beatings, hanging, whipping—and to sustained and protracted questioning incommunicado in order to extort confessions.6 The Commission on Civil Rights in 1961 found much evidence to indicate that 'some policemen still resort to physical force to obtain confessions,' 1961 Comm'n on Civil Rights Rep., Justice, pt. 5, 17. The use of physical brutality and violence is not, unfortunately, relegated to the past or to any part of the country. Only recently in Kings County, New York, the police brutally beat, kicked and placed lighted cigarette butts on the back of a potential witness under interrogation for the purpose of securing a statement incriminating a third party. People v. Portelli, 15 N.Y.2d 235, 257 N.Y.S.2d 931, 205 N.E.2d 857 (1965).7
13
The examples given above are undoubtedly the exception now, but they are sufficiently widespread to be the object of concern. Unless a proper limitation upon custodial interrogation is achieved—such as these decisions will advance—there can be no assurance that practices of this nature will be eradicated in the foreseeable future. The conclusion of the Wickersham Commission Report, made over 30 years ago, is still pertinent:
14
'To the contention that the third degree is necessary to get the facts, the reporters aptly reply in the language of the present Lord Chancellor of England (Lord Sankey): 'It is not admissible to do a great right by doing a little wrong. * * * It is not sufficient to do justice by obtaining a proper result by irregular or improper means.' Not only does the use of the third degree involve a flagrant violation of law by the officers of the law, but it involves also the dangers of false confessions, and it tends to make police and prosecutors less zealous in the search for objective evidence. As the New York prosecutor quoted in the report said, 'It is a short cut and makes the police lazy and unenterprising.' Or, as another official quoted remarked: 'If you use your fists, you are not so likely to use your wits.' We agree with the conclusion expressed in the report, that 'The third degree brutalizes the police, hardens the prisoner against society, and lowers the esteem in which the administration of justice is held by the public." IV National Commission on Law Observance and Enforcement, Report on Lawlessness in Law Enforcement 5 (1931).
15
Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented. As we have stated before, 'Since Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716, this Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition.' Blackburn v. State of Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (1960). Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms. A valuable source of information about present police practices, however, may be found in various police manuals and texts which document procedures employed with success in the past, and which recommend various other effective tactics.8 These texts are used by law enforcement agencies themselves as guides.9 It should be noted that these texts professedly present the most enlightened and effective means presently used to obtain statements through custodial interrogation. By considering these texts and other data, it is possible to describe procedures observed and noted around the country.
16
The officers are told by the manuals that the 'principal psychological factor contributing to a successful interrogation is privacy—being alone with the person under interrogation.'10 The efficacy of this tactic has been explained as follows:
17
'If at all practicable, the interrogation should take place in the investigator's office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions of criminal behavior within the walls of his home. Moreover his family and other friends are nearby, their presence lending moral support. In his office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law.'11
18
To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect's guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimize the moral seriousness of the offense,12 to cast blame on the victim or on society.13 These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already—that he is guilty. Explanations to the contrary are dismissed and discouraged.
19
The texts thus stress that the major qualities an interrogator should possess are patience and perseverance. One writer describes the efficacy of these characteristics in this manner:
20
'In the preceding paragraphs emphasis has been placed on kindness and stratagems. The investigator will, however, encounter many situations where the sheer weight of his personality will be the deciding factor. Where emotional appeals and tricks are employed to no avail, he must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadily and without relent, leaving the subject no prospect of surcease. He must dominate his subject and overwhelm him with his inexorable will to obtain the truth. He should interrogate for a spell of several hours pausing only for the subject's necessities in acknowledgment of the need to avoid a charge of duress that can be technically substantiated. In a serious case, the interrogation may continue for days, with the required intervals for food and sleep, but with no respite from the atmosphere of domination. It is possible in this way to induce the subject to talk without resorting to duress or coercion. The method should be used only when the guilt of the subject appears highly probable.'14
21
The manuals suggest that the suspect be offered legal excuses for his actions in order to obtain an initial admission of guilt. Where there is a suspected revenge-killing, for example, the interrogator may say:
22
'Joe, you probably didn't go out looking for this fellow with the purpose of shooting him. My guess is, however, that you expected something from him and that's why you carried a gun for your own protection. You knew him for what he was, no good. Then when you met him he probably started using foul, abusive language and he gave some indication that he was about to pull a gun on you, and that's when you had to act to save your own life. That's about it, isn't it, Joe?'15
23
Having then obtained the admission of shooting, the interrogator is advised to refer to circumstantial evidence which negates the self-defense explanation. This should enable him to secure the entire story. One text notes that 'Even if he fails to do so, the inconsistency between the subject's original denial of the shooting and his present admission of at least doing the shooting will serve to deprive him of a self-defense 'out' at the time of trial.'16
24
When the techniques described above prove unavailing, the texts recommend they be alternated with a show of some hostility. One ploy often used has been termed the 'friendly-unfriendly' or the 'Mutt and Jeff' act:
25
'* * * In this technique, two agents are employed. Mutt, the relentless investigator, who knows the subject is guilty and is not going to waste any time. He's sent a dozen men away for this crime and he's going to send the subject away for the full term. Jeff, on the other hand, is obviously a kindhearted man. He has a family himself. He has a brother who was involved in a little scrape like this. He disapproves of Mutt and his tactics and will arrange to get him off the case if the subject will cooperate. He can't hold Mutt off for very long. The subject would be wise to make a quick decision. The technique is applied by having both investigators present while Mutt acts out his role. Jeff may stand by quietly and demur at some of Mutt's tactics. When Jeff makes his plea for cooperation, Mutt is not present in the room.'17
26
The interrogators sometimes are instructed to induce a confession out of trickery. The technique here is quite effective in crimes which require identification or which run in series. In the identification situation, the interrogator may take a break in his questioning to place the subject among a group of men in a line-up. 'The witness or complainant (previously coached, if necessary) studies the line-up and confidently points out the subject as the guilty party.'18 Then the questioning resumes 'as though there were now no doubt about the guilt of the subject.' A variation on this technique is called the 'reverse line-up':
27
'The accused is placed in a line-up, but this time he is identified by several fictitious witnesses or victims who associated him with diferent offenses. It is expected that the subject will become desperate and confess to the offense under investigation in order to escape from the false accusations.'19
28
The manuals also contain instructions for police on how to handle the individual who refuses to discuss the matter entirely, or who asks for an attorney or relatives. The examiner is to concede him the right to remain silent. 'This usually has a very undermining effect. First of all, he is disappointed in his expectation of an unfavorable reaction on the part of the interrogator. Secondly, a concession of this right to remain silent impresses the subject with the apparent fairness of his interrogator.'20 After this psychological conditioning, however, the officer is told to point out the incriminating significance of the suspect's refusal to talk:
29
'Joe, you have a right to remain silent. That's your privilege and I'm the last person in the world who'll try to take it away from you. If that's the way you want to leave this, O.K. But let me ask you this. Suppose you were in my shoes and I were in yours and you called me in to ask me about this and I told you, 'I don't want to answer any of your questions.' You'd think I had something to hide, and you'd probably be right in thinking that. That's exactly what I'll have to think about you, and so will everybody else. So let's sit here and talk this whole thing over.'21
30
Few will persist in their initial refusal to talk, it is said, if this monologue is employed correctly.
31
In the event that the subject wishes to speak to a relative or an attorney, the following advice is tendered:
32
'(T)he interrogator should respond by suggesting that the subject first tell the truth to the interrogator himself rather than get anyone else involved in the matter. If the request is for an attorney, the interrogator may suggest that the subject save himself or his family the expense of any such professional service, particularly if he is innocent of the offense under investigation. The interrogator may also add, 'Joe, I'm only looking for the truth, and if you're telling the truth, that's it. You can handle this by yourself."22
33
From these representative samples of interrogation techniques, the setting prescribed by the manuals and observed in practice becomes clear. In essence, it is this: To be alone with the subject is essential to prevent distraction and to deprive him of any outside support. The aura of confidence in his guilt undermines his will to resist. He merely confirms the preconceived story the police seek to have him describe. Patience and persistence, at times relentless questioning, are employed. To obtain a confession, the interrogator must 'patiently maneuver himself or his quarry into a position from which the desired objective may be attained.'23 When normal procedures fail to produce the needed result, the police may resort to deceptive stratagems such as giving false legal advice. It is important to keep the subject off balance, for example, by trading on his insecurity about himself or his surroundings. The police then persuade, trick, or cajole him out of exercising his constitutional rights.
34
Even without employing brutality, the 'third degree' or the specific stratagems described above, the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals.24 This fact may be illustrated simply by referring to three confession cases decided by this Court in the Term immediately preceding our Escobedo decision. In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the defendant was a 19-year-old heroin addict, described as a 'near mental defective,' id., at 307—310, 83 S.Ct. at 754—755. The defendant in Lynumn v. State of Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963), was a woman who confessed to the arresting officer after being importuned to 'cooperate' in order to prevent her children from being taken by relief authorities. This Court as in those cases reversed the conviction of a defendant in Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963), whose persistent request during his interrogation was to phone his wife or attorney.25 In other settings, these individuals might have exercised their constitutional rights. In the incommunicado police-dominated atmosphere, they succumbed.
35
In the cases before us today, given this backgound, we concern ourselves primarily with this interrogation atmosphere and the evils it can bring. In No. 759, Miranda v. Arizona, the police arrested the defendant and took him to a special interrogation room where they secured a confession. In No. 760, Vignera v. New York, the defendant made oral admissions to the police after interrogation in the afternoon, and then signed an inculpatory statement upon being questioned by an assistant district attorney later the same evening. In No. 761, Westover v. United States, the defendant was handed over to the Federal Bureau of Investigation by local authorities after they had detained and interrogated him for a lengthy period, both at night and the following morning. After some two hours of questioning, the federal officers had obtained signed statements from the defendant. Lastly, in No. 584, California v. Stewart, the local police held the defendant five days in the station and interrogated him on nine separate occasions before they secured his inculpatory statement.
36
In these cases, we might not find the defendants' statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect precious Fifth Amendment rights is, of course, not lessened in the slightest. In each of the cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures. The potentiality for compulsion is forcefully apparent, for example, in Miranda, where the indigent Mexican defendant was a seriously disturbed individual with pronounced sexual fantasies, and in Stewart, in which the defendant was an indigent Los Angeles Negro who had dropped out of school in the sixth grade. To be sure, the records do not evince overt physical coercion or patent psychological ploys. The fact remains that in none of these cases did the officers undertake to afford appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice.
37
It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity.26 The current practice of incommunicado interrogation is at odds with one of our Nation's most cherished principles—that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.
38
From the foregoing, we can readily perceive an intimate connection between the privilege against self-incrimination and police custodial questioning. It is fitting to turn to history and precedent and their convenient 'witnesses,' keep her to determine its applicability in this situation.
II.
39
We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came and the fervor with which it was defended. Its roots go back into ancient times.27 Perhaps the critical historical event shedding light on its origins and evolution was the trial of one John Lilburn, a vocal anti-Stuart Leveller, who was made to take the Star Chamber Oath in 1637. The oath would have bound him to answer to all questions posed to him on any subject. The Trial of John Lilburn and John Wharton, 3 How.St.Tr. 1315 (1637). He resisted the oath and declaimed the proceedings, stating:
40
'Another fundamental right I then contended for, was, that no man's conscience ought to be racked by oaths imposed, to answer to questions concerning himself in matters criminal, or pretended to be so.' Haller & Davies, The Leveller Tracts 1647—1653, p. 454 (1944).
41
On account of the Lilburn Trial, Parliament abolished the inquisitorial Court of Star Chamber and went further in giving him generous reparation. The lofty principles to which Lilburn had appealed during his trial gained popular acceptance in England.28 These sentiments worked their way over to the Colonies and were implanted after great struggle into the Bill of Rights.29 Those who framed our Constitution and the Bill of Rights were ever aware of subtle encroachments on individual liberty. They knew that 'illegitimate and unconstitutional practices get their first footing * * * by silent approaches and slight deviations from legal modes of procedure.' Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746 (1886). The privilege was elevated to constitutional status and has always been 'as broad ad the mischief against which it seeks to guard.' Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110 (1892). We cannot depart from this noble heritage.
42
Thus we may view the historical development of the privilege as one which groped for the proper scope of governmental power over the citizen. As a 'noble principle often transcends its origins,' the privilege has come right-fully to be recognized in part as an individual's substantive right, a 'right to a private enclave where he may lead a private life. That right is the hallmark of our democracy.' United States v. Grunewald, 233 F.2d 556, 579, 581—582 (Frank, J., dissenting), rev'd, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). We have recently noted that the privilege against self-incrimination—the essential mainstay of our adversary system—is founded on a complex of values, Murphy v. Waterfront Comm. of New York Harbor, 378 U.S. 52, 55—57, n. 5, 84 S.Ct. 1594, 1596—1597, 12 L.Ed.2d 678 (1964); Tehan v. United States ex rel. Shott, 382 U.S. 406, 414—415, n. 12, 86 S.Ct. 459, 464, 15 L.Ed.2d 453 (1966). All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government—state or federal—must accord to the dignity and integrity of its citizens. To maintain a 'fair state-individual balance,' to require the government 'to shoulder the entire load,' 8 Wigmore, Evidence 317 (McNaughton rev. 1961), to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth. Chambers v. State of Florida, 309 U.S. 227, 235—238, 60 S.Ct. 472, 476—477, 84 L.Ed. 716 (1940). In sum, the privilege is fulfilled only when the person is guaranteed the right 'to remain silent unless he chooses to speak in the unfettered exercise of his own will.' Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964).
43
The question in these cases is whether the privilege is fully applicable during a period of custodial interrogation. In this Court, the privilege has consistently been accorded a liberal construction. Albertson v. Subversive Activities Control Board, 382 U.S. 70, 81, 86 S.Ct. 194, 200, 15 L.Ed.2d 165 (1965); Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed.2d 1118 (1951); Arnstein v. McCarthy, 254 U.S. 71, 72—73, 41 S.Ct. 26, 65 L.Ed. 138 (1920); Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 35 L.Ed. 1110 (1892). We are satisfied that all the principles embodied in the privilege apply to informal compulsion exerted by law-enforcement officers during in-custody questioning. An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery.30
44
This question, in fact, could have been taken as settled in federal courts almost 70 years ago, when, in Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897), this Court held:
45
'In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the fifth amendment * * * commanding that no person 'shall be compelled in any criminal case to be a witness against himself."
46
In Bram, the Court reviewed the British and American history and case law and set down the Fifth Amendment standard for compulsion which we implement today:
47
'Much of the confusion which has resulted from the effort to deduce from the adjudged cases what would be a sufficient quantum of proof to show that a confession was or was not voluntary has arisen from a misconception of the subject to which the proof must address itself. The rule is not that, in order to render a statement admissible, the proof must be adequate to establish that the particular communications contained in a statement were voluntarily made, but it must be sufficient to establish that the making of the statement was voluntary; that is to say, that, from the causes which the law treats as legally sufficient to engender in the mind of the accused hope or fear in respect to the crime charged, the accused was not involuntarily impelled to make a statement when but for the improper influences he would have remained silent. * * *' 168 U.S., at 549, 18 S.Ct. at 189. And see, id., at 542, 18 S.Ct. at 186.
48
The Court has adhered to this reasoning. In 1924, Mr. Justice Brandeis wrote for a unanimous Court in reversing a conviction resting on a compelled confession, Ziang Sung Wan v. United States, 266 U.S. 1, 45 S.Ct. 1, 69 L.Ed. 131. He stated:
49
'In the federal courts, the requisite of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or a threat. A confession is voluntary in law if, and only if, it was, in fact, voluntarily made. A confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568.' 266 U.S., at 14—15, 45 S.Ct. at 3.
50
In addition to the expansive historical development of the privilege and the sound policies which have nurtured its evolution, judicial precedent thus clearly establishes its application to incommunicado interrogation. In fact, the Government concedes this point as well established in No. 761, Westover v. United States, stating: 'We have no doubt * * * that it is possible for a suspect's Fifth Amendment right to be violated during in-custody questioning by a law-enforcement officer.'31
51
Because of the adoption by Congress of Rule 5(a) of the Federal Rules of Criminal Procedure, and the Court's effectuation of that Rule in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), we have had little occasion in the past quarter century to reach the constitutional issues in dealing with federal interrogations. These supervisory rules, requiring production of an arrested person before a commissioner 'without unnecessary delay' and excluding evidence obtained in default of that statutory obligation, were nonetheless responsive to the same considerations of Fifth Amendment policy that unavoidably face us now as to the States. In McNabb, 318 U.S., at 343—344, 63 S.Ct. at 614, and in Mallory, 354 U.S., at 455—456, 77 S.Ct. at 1359—1360, we recognized both the dangers of interrogation and the appropriateness of prophylaxis stemming from the very fact of interrogation itself.32
52
Our decision in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), necessitates an examination of the scope of the privilege in state cases as well. In Malloy, we squarely held the privilege applicable to the States, and held that the substantive standards underlying the privilege applied with full force to state court proceedings. There, as in Murphy v. Waterfront Comm. of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), and Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), we applied the existing Fifth Amendment standards to the case before us. Aside from the holding itself, the reasoning in Malloy made clear what had already become apparent—that the substantive and procedural safeguards surrounding admissibility of confessions in state cases had become exceedingly exacting, reflecting all the policies embedded in the privilege, 378 U.S., at 7—8, 84 S.Ct. at 1493.33 The voluntariness doctrine in the state cases, as Malloy indicates, encompasses all interrogation practices which are likely to exert such pressure upon an individual as to disable him from making a free and rational choice.34 The implications of this proposition were elaborated in our decision in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, decided one week after Malloy applied the privilege to the States.
53
Our holding there stressed the fact that the police had not advised the defendant of his constitutional privilege to remain silent at the outset of the interrogation, and we drew attention to that fact at several points in the decision, 378 U.S., at 483, 485, 491, 84 S.Ct. at 1761, 1762, 1765. This was no isolated factor, but an essential ingredient in our decision. The entire thrust of police interrogation there, as in all the cases today, was to put the defendant in such an emotional state as to impair his capacity for rational judgment. The abdication of the constitutional privilege—the choice on his part to speak to the police—was not made knowingly or competently because of the failure to apprise him of his rights; the compelling atmosphere of the in-custody interrogation, and not an independent decision on his part, caused the defendant to speak.
54
A different phase of the Escobedo decision was significant in its attention to the absence of counsel during the questioning. There, as in the cases today, we sought a protective device to dispel the compelling atmosphere of the interrogation. In Escobedo, however, the police did not relieve the defendant of the anxieties which they had created in the interrogation rooms. Rather, they denied his request for the assistance of counsel, 378 U.S., at 481, 488, 491, 84 S.Ct. at 1760, 1763, 1765.35 This heightened his dilemma, and made his later statements the product of this compulsion. Cf. Haynes v. State of Washington, 373 U.S. 503, 514, 83 S.Ct. 1336, 1343 (1963). The denial of the defendant's request for his attorney thus undermined his ability to exercise the privilege—to remain silent if he chose or to speak without any intimidation, blatant or subtle. The presence of counsel, in all the cases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion.
55
It was in this manner that Escobedo explicated another facet of the pre-trial privilege, noted in many of the Court's prior decisions: the protection of rights at trial.36 That counsel is present when statements are taken from an individual during interrogation obviously enhances the integrity of the fact-finding processes in court. The presence of an attorney, and the warnings delivered to the individual, enable the defendant under otherwise compelling circumstances to tell his story without fear, effectively, and in a way that eliminates the evils in the interrogation process. Without the protections flowing from adequate warning and the rights of counsel, 'all the careful safeguards erected around the giving of testimony, whether by an accused or any other witness, would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police.' Mapp v. Ohio, 367 U.S. 643, 685, 81 S.Ct. 1684, 1707, 6 L.Ed.2d 1081 (1961) (Harlan, J., dissenting). Cf. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
III.
56
Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.
57
It is impossible for us to foresee the potential alternatives for protecting the privilege which might be devised by Congress or the States in the exercise of their creative rule-making capacities. Therefore we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted. Our decision in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect. We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws. However, unless we are shown other procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it, the following safeguards must be observed.
58
At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it—the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere. It is not just the subnormal or woefully ignorant who succumb to an interrogator's imprecations, whether implied or expressly stated, that the interrogation will continue until a confession is obtained or that silence in the face of accusation is itself damning and will bode ill when presented to a jury.37 Further, the warning will show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it.
59
The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation;38 a warning is a clearcut fact. More important, whatever the background of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time.
60
The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system—that he is not in the presence of persons acting solely in his interest.
61
The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. A mere warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain silent without more 'will benefit only the recidivist and the professional.' Brief for the National District Attorneys Association as amicus curiae, p. 14. Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. Cf. Escobedo v. State of Illinois, 378 U.S. 478, 485, n. 5, 84 S.Ct. 1758, 1762. Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.
62
The presence of counsel at the interrogation may serve several significant subsidiary functions as well. If the accused decides to talk to his interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police and that the statement is rightly reported by the prosecution at trial. See Crooker v. State of California, 357 U.S. 433, 443—448, 78 S.Ct. 1287, 1293—1296, 2 L.Ed.2d 1448 (1958) (Douglas, J., dissenting).
63
An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given. The accused who does not know his rights and therefore does not make a request may be the person who most needs counsel. As the California Supreme Court has aptly put it:
64
'Finally, we must recognize that the imposition of the requirement for the request would discriminate against the defendant who does not know his rights. The defendant who does not ask for counsel is the very defendant who most needs counsel. We cannot penalize a defendant who, not understanding his constitutional rights, does not make the formal request and by such failure demonstrates his helplessness. To require the request would be to favor the defendant whose sophistication or status had fortuitously prompted him to make it.' People v. Dorado, 62 Cal.2d 338, 351, 42 Cal.Rptr. 169, 177—178, 398 P.2d 361, 369—370, (1965) (Tobriner, J.).
65
In Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 889, 8 L.Ed.2d 70 (1962), we stated: '(I)t is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.' This proposition applies with equal force in the context of providing counsel to protect an accused's Fifth Amendment privilege in the face of interrogation.39 Although the role of counsel at trial differs from the role during interrogation, the differences are not relevant to the question whether a request is a prerequisite.
66
Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.
67
If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney. The financial ability of the individual has no relationship to the scope of the rights involved here. The privilege against self-incrimination secured by the Constitution applies to all individuals. The need for counsel in order to protect the privilege exists for the indigent as well as the affluent. In fact, were we to limit these constitutional rights to those who can retain an attorney, our decisions today would be of little significance. The cases before us as well as the vast majority of confession cases with which we have dealt in the past involve those unable to retain counsel.40 While authorities are not required to relieve the accused of his poverty, they have the obligation not to take advantage of indigence in the administration of justice.41 Denial of counsel to the indigent at the time of interrogation while allowing an attorney to those who can afford one would be no more supportable by reason or logic than the similar situation at trial and on appeal struck down in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).
68
In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent—the person most often subjected to interrogation—the knowledge that he too has a right to have counsel present.42 As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it.43
69
Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.44 At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.
70
This does not mean, as some have suggested, that each police station must have a 'station house lawyer' present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person's Fifth Amendment privilege so long as they do not question him during that time.
71
If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. State of Illinois, 378 U.S. 478, 490, n. 14, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and we reassert these standards as applied to incustody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.
72
An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962), is applicable here:
73
'Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.'
74
See also Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Moreover, where in-custody interrogation is involved, there is no room for the contention that the privilege is waived if the individual answers some questions or gives some information on his own prior to invoking his right to remain silent when interrogated.45
75
Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege. Moreover, any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege. The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.
76
The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant. No distinction can be drawn between statements which are direct confessions and statements which amount to 'admissions' of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely 'exculpatory.' If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement. In Escobedo itself, the defendant fully intended his accusation of another as the slayer to be exculpatory as to himself.
77
The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way. It is at this point that our adversary system of criminal proceedings commences, distinguishing itself at the outset from the inquisitorial system recognized in some countries. Under the system of warnings we delineate today or under any other system which may be devised and found effective, the safeguards to be erected about the privilege must come into play at this point.
78
Our decision is not intended to hamper the traditional function of police officers in investigating crime. See Escobedo v. State of Illinois, 378 U.S. 478, 492, 84 S.Ct. 1758, 1765. When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.46
79
In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime,47 or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.
80
To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.48
IV.
81
A recurrent argument made in these cases is that society's need for interrogation outweighs the privilege. This argument is not unfamiliar to this Court. See, e.g., Chambers v. State of Florida, 309 U.S. 227, 240—241, 60 S.Ct. 472, 478—479, 84 L.Ed. 716 (1940). The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of government when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged. As Mr. Justice Brandeis once observed:
82
'Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means * * * would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.' Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1928) (dissenting opinion).49
83
In this connection, one of our country's distinguished jurists has pointed out: 'The quality of a nation's civilization can be largely measured by the methods it uses in the enforcement of its criminal law.'50
84
If the individual desires to exercise his privilege, he has the right to do so. This is not for the authorities to decide. An attorney may advise his client not to talk to police until he has had an opportunity to investigate the case, or he may wish to be present with his client during any police questioning. In doing so an attorney is merely exercising the good professional judgment he has been taught. This is not cause for considering the attorney a menace to law enforcement. He is merely carrying out what he is sworn to do under his oath—to protect to the extent of his ability the rights of his client. In fulfilling this responsibility the attorney plays a vital role in the administration of criminal justice under our Constitution.
85
In announcing these principles, we are not unmindful of the burdens which law enforcement officials must bear, often under trying circumstances. We also fully recognize the obligation of all citizens to aid in enforcing the criminal laws. This Court, while protecting individual rights, has always given ample latitude to law enforcement agencies in the legitimate exercise of their duties. The limits we have placed on the interrogation process should not constitute an undue interference with a proper system of law enforcement. As we have noted, our decision does not in any way preclude police from carrying out their traditional investigatory functions. Although confessions may play an important role in some convictions, the cases before us present graphic examples of the overstatement of the 'need' for confessions. In each case authorities conducted interrogations ranging up to five days in duration despite the presence, through standard investigating practices, of considerable evidence against each defendant.51 Further examples are chronicled in our prior cases. See, e.g., Haynes v. State of Washington, 373 U.S. 503, 518 519, 83 S.Ct. 1336, 1345, 1346, 10 L.Ed.2d 513 (1963); Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 739, 5 L.Ed.2d 760 (1961); Malinski v. People of State of New York, 324 U.S. 401, 402, 65 S.Ct. 781, 782 (1945).52
86
It is also urged that an unfettered right to detention for interrogation should be allowed because it will often redound to the benefit of the person questioned. When police inquiry determines that there is no reason to believe that the person has committed any crime, it is said, he will be released without need for further formal procedures. The person who has committed no offense, however, will be better able to clear himself after warnings with counsel present than without. It can be assumed that in such circumstances a lawyer would advise his client to talk freely to police in order to clear himself.
87
Custodial interrogation, by contrast, does not necessarily afford the innocent an opportunity to clear themselves. A serious consequence of the present practice of the interrogation alleged to be beneficial for the innocent is that many arrests 'for investigation' subject large numbers of innocent persons to detention and interrogation. In one of the cases before us, No. 584, California v. Stewart, police held four persons, who were in the defendant's house at the time of the arrest, in jail for five days until defendant confessed. At that time they were finally released. Police stated that there was 'no evidence to connect them with any crime.' Available statistics on the extent of this practice where it is condoned indicate that these four are far from alone in being subjected to arrest, prolonged detention, and interrogation without the requisite probable cause.53
88
Over the years the Federal Bureau of Investigation has compiled an exemplary record of effective law enforcement while advising any suspect or arrested person, at the outset of an interview, that he is not required to make a statement, that any statement may be used against him in court, that the individual may obtain the services of an attorney of his own choice and, more recently, that he has a right to free counsel if he is unable to pay.54 A letter received from the Solicitor General in response to a question from the Bench makes it clear that the present pattern of warnings and respect for the rights of the individual followed as a practice by the FBI is consistent with the procedure which we delineate today. It states:
89
'At the oral argument of the above cause, Mr. Justice Fortas asked whether I could provide certain information as to the practices followed by the Federal Bureau of Investigation. I have directed these questions to the attention of the Director of the Federal Bureau of Investigation and am submitting herewith a statement of the questions and of the answers which we have received.
90
"(1) When an individual is interviewed by agents of the Bureau, what warning is given to him?
91
"The standard warning long given by Special Agents of the FBI to both suspects and persons under arrest is that the person has a right to say nothing and a right to counsel, and that any statement he does make may be used against him in court. Examples of this warning are to be found in the Westover case at 342 F.2d 684 (1965), and Jackson v. U.S., (119 U.S.App.D.C. 100) 337 F.2d 136 (1964), cert. den. 380 U.S. 935, 85 S.Ct. 1353,
92
"After passage of the Criminal Justice Act of 1964, which provides free counsel for Federal defendants unable to pay, we added to our instructions to Special Agents the requirement that any person who is under arrest for an offense under FBI jurisdiction, or whose arrest is contemplated following the interview, must also be advised of his right to free counsel if he is unable to pay, and the fact that such counsel will be assigned by the Judge. At the same time, we broadened the right to counsel warning to read counsel of his own choice, or anyone else with whom he might wish to speak.
93
"(2) When is the warning given?
94
"The FBI warning is given to a suspect at the very outset of the interview, as shown in the Westover case, cited above. The warning may be given to a person arrested as soon as practicable after the arrest, as shown in the Jackson case, also cited above, and in U.S. v. Konigsberg, 336 F.2d 844 (1964), cert. den. (Celso v. United States) 379 U.S. 933 (85 S.Ct. 327, 13 L.Ed.2d 342) but in any event it must precede the interview with the person for a confession or admission of his own guilt.
95
"(3) What is the Bureau's practice in the event that (a) the individual requests counsel and (b) counsel appears?
96
"When the person who has been warned of his right to counsel decides that he wishes to consult with counsel before making a statement, the interview is terminated at that point, Shultz v. U.S., 351 F.2d 287 ((10 Cir.) 1965). It may be continued, however, as to all matters other than the person's own guilt or innocence. If he is indecisive in his request for counsel, there may be some question on whether he did or did not waive counsel. Situations of this kind must necessarily be left to the judgment of the interviewing Agent. For example, in Hiram v. U.S., 354 F.2d 4 ((9 Cir.) 1965), the Agent's conclusion that the person arrested had waived his right to counsel was upheld by the courts.
97
"A person being interviewed and desiring to consult counsel by telephone must be permitted to do so, as shown in Caldwell v. U.S., 351 F.2d 459 ((1 Cir.) 1965). When counsel appears in person, he is permitted to confer with his client in private.
98
"(4) What is the Bureau's practice if the individual requests counsel, but cannot afford to retain an attorney?
99
"If any person being interviewed after warning of counsel decides that he wishes to consult with counsel before proceeding further the interview is terminated, as shown above. FBI Agents do not pass judgment on the ability of the person to pay for counsel. They do, however, advise those who have been arrested for an offense under FBI jurisdiction, or whose arrest is contemplated following the interview, of a right to free counsel if they are unable to pay, and the availability of such counsel from the Judge."55
100
The practice of the FBI can readily be emulated by state and local enforcement agencies. The argument that the FBI deals with different crimes than are dealt with by state authorities does not mitigate the significance of the FBI experience.56
101
The experience in some other countries also suggests that the danger to law enforcement in curbs on interrogation is overplayed. The English procedure since 1912 under the Judges' Rules is significant. As recently strengthened, the Rules require that a cautionary warning be given an accused by a police officer as soon as he has evidence that affords reasonable grounds for suspicion; they also require that any statement made be given by the accused without questioning by police.57 The right of the individual to consult with an attorney during this period is expressly recognized.58
102
The safeguards present under Scottish law may be even greater than in England. Scottish judicial decisions bar use in evidence of most confessions obtained through police interrogation.59 In India, confessions made to police not in the presence of a magistrate have been excluded by rule of evidence since 1872, at a time when it operated under British law.60 Identical provisions appear in the Evidence Ordinance of Ceylon, enacted in 1895.61 Similarly, in our country the Uniform Code of Military Justice has long provided that no suspect may be interrogated without first being warned of his right not to make a statement and that any statement he makes may be used against him.62 Denial of the right to consult counsel during interrogation has also been proscribed by military tribunals.63 There appears to have been no marked detrimental effect on criminal law enforcement in these jurisdictions as a result of these rules. Conditions of law enforcement in our country are sufficiently similar to permit reference to this experience as assurance that lawlessness will not result from warning an individual of his rights or allowing him to exercise them. Moreover, it is consistent with our legal system that we give at least as much protection to these rights as is given in the jurisdictions described. We deal in our country with rights grounded in a specific requirement of the Fifth Amendment of the Constitution, whereas other jurisdictions arrived at their conclusions on the basis of principles of justice not so specifically defined.64
103
It is also urged upon us that we withhold decision on this issue until state legislative bodies and advisory groups have had an opportunity to deal with these problems by rule making.65 We have already pointed out that the Constitution does not require any specific code of procedures for protecting the privilege against self-incrimination during custodial interrogation. Congress and the States are free to develop their own safeguards for the privilege, so long as they are fully as effective as those described above in informing accused persons of their right of silence and in affording a continuous opportunity to exercise it. In any event, however, the issues presented are of constitutional dimensions and must be determined by the courts. The admissibility of a statement in the face of a claim that it was obtained in violation of the defendant's constitutional rights is an issue the resolution of which has long since been undertaken by this Court. See Hopt v. People of Territory of Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884). Judicial solutions to problems of constitutional dimension have evolved decade by decade. As courts have been presented with the need to enforce constitutional rights, they have found means of doing so. That was our responsibility when Escobedo was before us and it is our responsibility today. Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.
V.
104
Because of the nature of the problem and because of its recurrent significance in numerous cases, we have to this point discussed the relationship of the Fifth Amendment privilege to police interrogation without specific concentration on the facts of the cases before us. We turn now to these facts to consider the application to these cases of the constitutional principles discussed above. In each instance, we have concluded that statements were obtained from the defendant under circumstances that did not meet constitutional standards for protection of the privilege.
105
No. 759. Miranda v. Arizona.
106
On March 13, 1963, petitioner, Ernesto Miranda, was arrested at his home and taken in custody to a Phoenix police station. He was there identified by the complaining witness. The police then took him to 'Interrogation Room No. 2' of the detective bureau. There he was questioned by two police officers. The officers admitted at trial that Miranda was not advised that he had a right to have an attorney present.66 Two hours later, the officers emerged from the interrogation room with a written confession signed by Miranda. At the top of the statement was a typed paragraph stating that the confession was made voluntarily, without threats or promises of immunity and 'with full knowledge of my legal rights, understanding any statement I make may be used against me.'67
107
At his trial before a jury, the written confession was admitted into evidence over the objection of defense counsel, and the officers testified to the prior oral confession made by Miranda during the interrogation. Miranda was found guilty of kidnapping and rape. He was sentenced to 20 to 30 years' imprisonment on each count, the sentences to run concurrently. On appeal, the Supreme Court of Arizona held that Miranda's constitutional rights were not violated in obtaining the confession and affirmed the conviction. 98 Ariz. 18, 401 P.2d 721. In reaching its decision, the court emphasized heavily the fact that Miranda did not specifically request counsel.
108
We reverse. From the testimony of the officers and by the admission of respondent, it is clear that Miranda was not in any way apprised of his right to consult with an attorney and to have one present during the interrogation, nor was his right not to be compelled to incriminate himself effectively protected in any other manner. Without these warnings the statements were inadmissible. The mere fact that he signed a statement which contained a typed-in clause stating that he had 'full knowledge' of his 'legal rights' does not approach the knowing and intelligent waiver required to relinquish constitutional rights. Cf. Haynes v. State of Washington, 373 U.S. 503, 512—513, 83 S.Ct. 1336, 1342, 10 L.Ed.2d 513 (1963); Haley v. State of Ohio, 332 U.S. 596, 601, 68 S.Ct. 302, 304, 92 L.Ed. 224 (1948) (opinion of Mr. Justice Douglas).
109
No. 760. Vignera v. New York.
110
Petitioner, Michael Vignera, was picked up by New York police on October 14, 1960, in connection with the robbery three days earlier of a Brooklyn dress shop. They took him to the 17th Detective Squad headquarters in Manhattan. Sometime thereafter he was taken to the 66th Detective Squad. There a detective questioned Vignera with respect to the robbery. Vignera orally admitted the robbery to the detective. The detective was asked on cross-examination at trial by defense counsel whether Vignera was warned of his right to counsel before being interrogated. The prosecution objected to the question and the trial judge sustained the objection. Thus, the defense was precluded from making any showing that warnings had not been given. While at the 66th Detective Squad, Vignera was identified by the store owner and a saleslady as the man who robbed the dress shop. At about 3 p.m. he was formally arrested. The police then transported him to still another station, the 70th Precinct in Brooklyn, 'for detention.' At 11 p.m. Vignera was questioned by an assistant district attorney in the presence of a hearing reporter who transcribed the questions and Vignera's answers. This verbatim account of these proceedings contains no statement of any warnings given by the assistant district attorney. At Vignera's trial on a charge of first degree robbery, the detective testified as to the oral confession. The transcription of the statement taken was also introduced in evidence. At the conclusion of the testimony, the trial judge charged the jury in part as follows:
111
'The law doesn't say that the confession is void or invalidated because the police officer didn't advise the defendant as to his rights. Did you hear what I said? I am telling you what the law of the State of New York is.'
112
Vignera was found guilty of first degree robbery. He was subsequently adjudged a third-felony offender and sentenced to 30 to 60 years' imprisonment.68 The conviction was affirmed without opinion by the Appellate Division, Second Department, 21 A.D.2d 752, 252 N.Y.S.2d 19, and by the Court of Appeals, also without opinion, 15 N.Y.2d 970, 259 N.Y.S.2d 857, 207 N.E.2d 527, remittitur amended, 16 N.y.2d 614, 261 N.Y.S.2d 65, 209 N.E.2d 110. In argument to the Court of Appeals, the State contended that Vignera had no constitutional right to be advised of his right to counsel or his privilege against self-incrimination.
113
We reverse. The foregoing indicates that Vignera was not warned of any of his rights before the questioning by the detective and by the assistant district attorney. No other steps were taken to protect these rights. Thus he was not effectively apprised of his Fifth Amendment privilege or of his right to have counsel present and his statements are inadmissible.
114
No. 761. Westover v. United States.
115
At approximately 9:45 p.m. on March 20, 1963, petitioner, Carl Calvin Westover, was arrested by local police in Kansas City as a suspect in two Kansas City robberies. A report was also received from the FBI that he was wanted on a felony charge in California. The local authorities took him to a police station and placed him in a line-up on the local charges, and at about 11:45 p.m. he was booked. Kansas City police interrogated Westover on the night of his arrest. He denied any knowledge of criminal activities. The next day local officers interrogated him again throughout the morning. Shortly before noon they informed the FBI that they were through interrogating Westover and that the FBI could proceed to interrogate him. There is nothing in the record to indicate that Westover was ever given any warning as to his rights by local police. At noon, three special agents of the FBI continued the interrogation in a private interview room of the Kansas City Police Department, this time with respect to the robbery of a savings and loan association and a bank in Sacramento, California. After two or two and one-half hours, Westover signed separate confessions to each of these two robberies which had been prepared by one of the agents during the interrogation. At trial one of the agents testified, and a paragraph on each of the statements states, that the agents advised Westover that he did not have to make a statement, that any statement he made could be used against him, and that he had the right to see an attorney.
116
Westover was tried by a jury in federal court and convicted of the California robberies. His statements were introduced at trial. He was sentenced to 15 years' imprisonment on each count, the sentences to run consecutively. On appeal, the conviction was affirmed by the Court of Appeals for the Ninth Circuit. 342 F.2d 684.
117
We reverse. On the facts of this case we cannot find that Westover knowingly and intelligently waived his right to remain silent and his right to consult with counsel prior to the time he made the statement.69 At the time the FBI agents began questioning Westover, he had been in custody for over 14 hours and had been interrogated at length during that period. The FBI interrogation began immediately upon the conclusion of the interrogation by Kansas City police and was conducted in local police headquarters. Although the two law enforcement authorities are legally distinct and the crimes for which they interrogated Westover were different, the impact on him was that of a continuous period of questioning. There is no evidence of any warning given prior to the FBI interrogation nor is there any evidence of an articulated waiver of rights after the FBI commenced its interrogation. The record simply shows that the defendant did in fact confess a short time after being turned over to the FBI following interrogation by local police. Despite the fact that the FBI agents gave warnings at the outset of their interview, from Westover's point of view the warnings came at the end of the interrogation process. In these circumstances an intelligent waiver of constitutional rights cannot be assumed.
118
We do not suggest that law enforcement authorities are precluded from questioning any individual who has been held for a period of time by other authorities and interrogated by them without appropriate warnings. A different case would be presented if an accused were taken into custody by the second authority, removed both in time and place from his original surroundings, and then adequately advised of his rights and given an opportunity to exercise them. But here the FBI interrogation was conducted immediately following the state interrogation in the same police station—in the same compelling surroundings. Thus, in obtaining a confession from Westover the federal authorities were the beneficiaries of the pressure applied by the local in-custody interrogation. In these circumstances the giving of warnings alone was not sufficient to protect the privilege.
119
No. 584. California v. Stewart.
120
In the course of investigating a series of purse-snatch robberies in which one of the victims had died of injuries inflicted by her assailant, respondent, Roy Allen Stewart, was pointed out to Los Angeles police as the endorser of dividend checks taken in one of the robberies. At about 7:15 p.m., January 31, 1963, police officers went to Stewart's house and arrested him. One of the officers asked Stewart if they could search the house, to which he replied, 'Go ahead.' The search turned up various items taken from the five robbery victims. At the time of Stewart's arrest, police also arrested Stewart's wife and three other persons who were visiting him. These four were jailed along with Stewart and were interrogated. Stewart was taken to the University Station of the Los Angeles Police Department where he was placed in a cell. During the next five days, police interrogated Stewart on nine different occasions. Except during the first interrogation session, when he was confronted with an accusing witness, Stewart was isolated with his interrogators.
121
During the ninth interrogation session, Stewart admitted that he had robbed the deceased and stated that he had not meant to hurt her. Police then brought Stewart before a magistrate for the first time. Since there was no evidence to connect them with any crime, the police then released the other four persons arrested with him.
122
Nothing in the record specifically indicates whether Stewart was or was not advised of his right to remain silent or his right to counsel. In a number of instances, however, the interrogating officers were asked to recount everything that was said during the interrogations. None indicated that Stewart was ever advised of his rights.
123
Stewart was charged with kidnapping to commit robbery, rape, and murder. At his trial, transcripts of the first interrogation and the confession at the last interrogation were introduced in evidence. The jury found Stewart guilty of robbery and first degree murder and fixed the penalty as death. On appeal, the Supreme Court of California reversed. 62 Cal.2d 571, 43 Cal.Rptr. 201, 400 P.2d 97. It held that under this Court's decision in Escobedo, Stewart should have been advised of his right to remain silent and of his right to counsel and that it would not presume in the face of a silent record that the police advised Stewart of his rights.70
124
We affirm.71 In dealing with custodial interrogation, we will not presume that a defendant has been effectively apprised of his rights and that his privilege against self-incrimination has been adequately safeguarded on a record that does not show that any warnings have been given or that any effective alternative has been employed. Nor can a knowing and intelligent waiver of these rights be assumed on a silent record. Furthermore, Stewart's steadfast denial of the alleged offenses through eight of the nine interrogations over a period of five days is subject to no other construction than that he was compelled by persistent interrogation to forgo his Fifth Amendment privilege.
125
Therefore, in accordance with the foregoing, the judgments of the Supreme Court of Arizona in No. 759, of the New York Court of Appeals in No. 760, and of the Court of Appeals for the Ninth Circuit in No. 761 are reversed. The judgment of the Supreme Court of California in No. 584 is affirmed. It is so ordered.
126
Judgments of Supreme Court of Arizona in No. 759, of New York Court of Appeals in No. 760, and of the Court of Appeals for the Ninth Circuit in No. 761 reversed.
127
Judgment of Supreme Court of California in No. 584 affirmed.
128
Mr. Justice CLARK, dissenting in Nos. 759, 760, and 761, and concurring in the result in No. 584.
129
It is with regret that I find it necessary to write in these cases. However, I am unable to join the majority because its opinion goes too far on too little, while my dissenting brethren do not go quite far enough. Nor can I join in the Court's criticism of the present practices of police and investigatory agencies as to custodial interrogation. The materials it refers to as 'police manuals'1 are, as I read them, merely writings in this filed by professors and some police officers. Not one is shown by the record here to be the official manual of any police department, much less in universal use in crime detection. Moreover the examples of police brutality mentioned by the Court2 are rare exceptions to the thousands of cases that appear every year in the law reports. The police agencies—all the way from municipal and state forces to the federal bureaus—are responsible for law enforcement and public safety in this country. I am proud of their efforts, which in my view are not fairly characterized by the Court's opinion.
I.
130
The ipse dixit of the majority has no support in our cases. Indeed, the Court admits that 'we might not find the defendants' statements (here) to have been involuntary in traditional terms.' Ante, p. 457. In short, the Court has added more to the requirements that the accused is entitled to consult with his lawyer and that he must be given the traditional warning that he may remain silent and that anything that he says may be used against him. Escobedo v. State of Illinois, 378 U.S. 478, 490—491, 84 S.Ct. 1758, 1764—1765, 12 L.Ed.2d 977 (1964). Now, the Court fashions a constitutional rule that the police may engage in no custodial interrogation without additionally advising the accused that he has a right under the Fifth Amendment to the presence of counsel during interrogation and that, if he is without funds, counsel will be furnished him. When at any point during an interrogation the accused seeks affirmatively or impliedly to invoke his rights to silence or counsel, interrogation must be forgone or postponed. The Court further holds that failure to follow the new procedures requires inexorably the exclusion of any statement by the accused, as well as the fruits thereof. Such a strict constitutional specific inserted at the nerve center of crime detection may well kill the patient.3 Since there is at this time a paucity of information and an almost total lack of empirical knowledge on the practical operation of requirements truly comparable to those announced by the majority, I would be more restrained lest we go too far too fast.
II.
131
Custodial interrogation has long been recognized as 'undoubtedly an essential tool in effective law enforcement.' Haynes v. State of Washington, 373 U.S. 503, 515, 83 S.Ct. 1336, 1344, 10 L.Ed.2d 513 (1963). Recognition of this fact should put us on guard against the promulgation of doctrinaire rules. Especially is this true where the Court finds that 'the Constitution has prescribed' its holding and where the light of our past cases, from Hopt v. People of Territory of Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), down to Haynes v. State of Washington, supra, is to the contrary. Indeed, even in Escobedo the Court never hinted that an affirmative 'waiver' was a prerequisite to questioning; that the burden of proof as to waiver was on the prosecution; that the presence of counsel—absent a waiver—during interrogation was required; that a waiver can be withdrawn at the will of the accused; that counsel must be furnished during an accusatory stage to those unable to pay; nor that admissions and exculpatory statements are 'confessions.' To require all those things at one gulp should cause the Court to choke over more cases than Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958), and Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958), which it expressly overrules today.
132
The rule prior to today—as Mr. Justice Goldberg, the author of the Court's opinion in Escobedo, stated it in Haynes v. Washington—depended upon 'a totality of circumstances evidencing an involuntary * * * adminission of guilt.' 373 U.S., at 514, 83 S.Ct. at 1343. And he concluded:
133
'Of course, detection and solution of crime is, at best, a difficult and arduous task requiring determination and persistence on the part of all responsible officers charged with the duty of law enforcement. And, certainly, we do not mean to suggest that all interrogation of witnesses and suspects is impermissible. Such questioning is undoubtedly an essential took in effective law enforcement. The line between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw, particularly in cases such as this where it is necessary to make fine judgments as to the effect of psychologically coercive pressures and inducements on the mind and will of an accused. * * * We are here impelled to the conclusion, from all of the facts presented, that the bounds of due process have been exceeded.' Id., at 514—515, 83 S.Ct. at 1344.
III.
134
I would continue to follow that rule. Under the 'totality of circumstances' rule of which my Brother Goldberg spoke in Haynes, I would consider in each case whether the police officer prior to custodial interrogation added the warning that the suspect might have counsel present at the interrogation and, further, that a court would appoint one at his request if he was too poor to employ counsel. In the absence of warnings, the burden would be on the State to prove that counsel was knowingly and intelligently waived or that in the totality of the circumstances, including the failure to give the necessary warnings, the confession was clearly voluntary.
135
Rather than employing the arbitrary Fifth Amendment rule4 which the Court lays down I would follow the more pliable dictates of the Due Process Clauses of the Fifth and Fourteenth Amendments which we are accustomed to administering and which we know from our cases are effective instruments in protecting persons in police custody. In this way we would not be acting in the dark nor in one full sweep changing the traditional rules of custodial interrogation which this Court has for so long recognized as a justifiable and proper tool in balancing individual rights against the rights of society. It will be soon enough to go further when we are able to appraise with somewhat better accuracy the effect of such a holding.
136
I would affirm the convictions in Miranda v. Arizona, No. 759; Vignera v. New York, No. 760; and Westover v. United States, No. 761. In each of those cases I find from the circumstances no warrant for reversal. In California v. Stewart, No. 584, I would dismiss the writ of certiorari for want of a final judgment, 28 U.S.C. § 1257(3) (1964 ed.); but if the merits are to be reached I would affirm on the ground that the State failed to fulfill its burden, in the absence of a showing that appropriate warnings were given, of proving a waiver or a totality of circumstances showing voluntariness. Should there be a retrial, I would leave the State free to attempt to prove these elements.
137
Mr. Justice HARLAN, whom Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.
138
I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be only time can tell. But the basic flaws in the Court's justification seem to me readily apparent now once all sides of the problem are considered.
I. INTRODUCTION
139
At the outset, it is well to note exactly what is required by the Court's new constitutional code of rules for confessions. The foremost requirement, upon which later admissibility of a confession depends, is that a fourfold warning be given to a person in custody before he is questioned, namely, that he has a right to remain silent, that anything he says may be used against him, that he has a right to have present an attorney during the questioning, and that if indigent he has a right to a lawyer without charge. To forgo these rights, some affirmative statement of rejection is seemingly required, and threats, tricks, or cajolings to obtain this waiver are forbidden. If before or during questioning the suspect seeks to invoke his right to remain silent, interrogation must be forgone or cease; a request for counsel brings about the same result until a lawyer is procured. Finally, there are a miscellany of minor directives, for example, the burden of proof of waiver is on the State, admissions and exculpatory statements are treated just like confessions, withdrawal of a waiver is always permitted, and so forth.1
140
While the fine points of this scheme are far less clear than the Court admits, the tenor is quite apparent. The new rules are not designed to guard against police brutality or other unmistakably banned forms of coercion. Those who use third-degree tactics and deny them in court are equally able and destined to lie as skillfully about warnings and waivers. Rather, the thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all. The aim in short is toward 'voluntariness' in a utopian sense, or to view it from a different angle, voluntariness with a vengeance.
141
To incorporate this notion into the Constitution requires a strained reading of history and precedent and a disregard of the very pragmatic concerns that alone may on occasion justify such strains. I believe that reasoned examination will show that the Due Process Clauses provide an adequate tool for coping with confessions and that, even if the Fifth Amendment privilege against self-incrimination be invoked, its precedents taken as a whole do not sustain the present rules. Viewed as a choice based on pure policy, these new rules prove to be a highly debatable, if not one-sided, appraisal of the competing interests, imposed over widespread objection, at the very time when judicial restraint is most called for by the circumstances.
II. CONSTITUTIONAL PREMISES.
142
It is most fitting to begin an inquiry into the constitutional precedents by surverying the limits on confessions the Court has evolved under the Due Process Clause of the Fourteenth Amendment. This is so because these cases show that there exists a workable and effective means of dealing with confessions in a judicial manner; because the cases are the baseline from which the Court now departs and so serve to measure the actual as opposed to the professed distance it travels; and because examination of them helps reveal how the Court has coasted into its present position.
143
The earliest confession cases in this Court emerged from federal prosecutions and were settled on a nonconstitutional basis, the Court adopting the common-law rule that the absence of inducements, promises, and threats made a confession voluntary and admissible. Hopt v. People, of Territory of Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262; Pierce v. United States, 160 U.S. 355, 16 S.Ct. 321, 40 L.Ed. 454. While a later case said the Fifth Amendment privilege controlled admissibility, this proposition was not itself developed in subsequent decisions.2 The Court did, however, heighten the test of admissibility in federal trials to one of voluntariness 'in fact,' Ziang Sung Wan v. United States, 266 U.S. 1, 14, 45 S.Ct. 1, 3, 69 L.Ed. 131 (quoted, ante, p. 462), and then by and large left federal judges to apply the same standards the Court began to derive in a string of state court cases.
144
This new line of decisions, testing admissibility by the Due Process Clause, began in 1936 with Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, and must now embrace somewhat more than 30 full opinions of the Court.3 While the voluntariness rubric was repeated in many instances, e.g., Lyons v. State of Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481, the Court never pinned it down to a single meaning but on the contrary infused it with a number of different values. To travel quickly over the main themes, there was an initial emphasis on reliability, e.g., Ward v. State of Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663, supplemented by concern over the legality and fairness of the police practices, e.g., Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192, in an 'accusatorial' system of law enforcement, Watts v. State of Indiana, 338 U.S. 49, 54, 69 S.Ct. 1347, 1350, 93 L.Ed. 1801, and eventually by close attention to the individual's state of mind and capacity for effective choice, e.g., Gallegos v. State of Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325. The outcome was a continuing re-evaluation on the facts of each case of how much pressure on the suspect was permissible.4
145
Among the criteria often taken into account were threats or imminent danger, e.g., Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975, physical deprivations such as lack of sleep or food, e.g., Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948, repeated or extended interrogation, e.g., Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716, limits on access to counsel or friends, Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448; Cicenia v. La. Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523, length and illegality of detention under state law, e.g., Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513, and individual weakness or incapacities, Lynumn v. State of Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922. Apart from direct physical coercion, however, no single default or fixed combination of defaults guaranteed exclusion, and synopses of the cases would serve little use because the overall gauge has been steadily changing, usually in the direction of restricting admissibility. But to mark just what point had been reached before the Court jumped the rails in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, it is worth capsulizing the then-recent case of Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336. There, Haynes had been held some 16 or more hours in violation of state law before signing the disputed confession, had received no warnings of any kind, and despite requests had been refused access to his wife or to counsel, the police indicating that access would be allowed after a confession. Emphasizing especially this last inducement and rejecting some contrary indicia of voluntariness, the Court in a 5-to-4 decision held the confession inadmissible.
146
There are several relevant lessons to be drawn from this constitutional history. The first is that with over 25 years of precedent the Court has developed an elaborate, sophisticated, and sensitive approach to admissibility of confessions. It is 'judicial' in its treatment of one case at a time, see Culombe v. Connecticut, 367 U.S. 568, 635, 81 S.Ct. 1860, 1896, 6 L.Ed.2d 1037 (concurring opinion of The Chief Justice), flexible in its ability to respond to the endless mutations of fact presented, and ever more familiar to the lower courts. Of course, strict certainty is not obtained in this developing process, but this is often so with constitutional principles, and disagreement is usually confined to that borderland of close cases where it matters least.
147
The second point is that in practice and from time to time in principle, the Court has given ample recognition to society's interest in suspect questioning as an instrument of law enforcement. Cases countenancing quite significant pressures can be cited without difficulty,5 and the lower courts may often have been yet more tolerant. Of course the limitations imposed today were rejected by necessary implication in case after case, the right to warnings having been explicitly rebuffed in this Court many years ago. Powers v. United States, 223 U.S. 303, 32 S.Ct. 281, 56 L.Ed. 448; Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090. As recently as Haynes v. State of Washington, 373 U.S. 503, 515, 83 S.Ct. 1336, 1344, the Court openly acknowledged that questioning of witnesses and suspects 'is undoubtedly an essential tool in effective law enforcement.' Accord, Crooker v. State of California, 357 U.S. 433, 441, 78 S.Ct. 1287, 1292.
148
Finally, the cases disclose that the language in many of the opinions overstates the actual course of decision. It has been said, for example, that an admissible confession must be made by the suspect 'in the unfettered exercise of his own will,' Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653, and that 'a prisoner is not 'to be made the deluded instrument of his own coniviction," Culombe v. Connecticut, 367 U.S. 568, 581, 81 S.Ct. 1860, 1867, 6 L.Ed.2d 1037 (Frankfurter, J., announcing the Court's judgment and an opinion). Though often repeated, such principles are rarely observed in full measure. Even the word 'voluntary' may be deemed somewhat misleading, especially when one considers many of the confessions that have been brought under its umbrella. See, e.g., supra, n. 5. The tendency to overstate may be laid in part to the flagrant facts often before the Court; but in any event one must recognize how it has tempered attitudes and lent some color of authority to the approach now taken by the Court.
149
I turn now to the Court's asserted reliance on the Fifth Amendment, an approach which I frankly regard as a trompe l'oeil. The Court's opinion in my view reveals no adequate basis for extending the Fifth Amendment's privilege against self-incrimination to the police station. Far more important, it fails to show that the Court's new rules are well supported, let alone compelled, by Fifth Amendment precedents. Instead, the new rules actually derive from quotation and analogy drawn from precedents under the Sixth Amendment, which should properly have no bearing on police interrogation.
150
The Court's opening contention, that the Fifth Amendment governs police station confessions, is perhaps not an impermissible extension of the law but it has little to commend itself in the present circumstances. Historically, the privilege against self-incrimination did not bear at all on the use of extra-legal confessions, for which distinct standards evolved; indeed, 'the history of the two principles is wide apart, differing by one hundred years in origin, and derived through separate lines of precedents. * * *' 8 Wigmore, Evidence § 2266, at 401 (McNaughton rev. 1961). Practice under the two doctrines has also differed in a number of important respects.6 Even those who would readily enlarge the privilege must concede some linguistic difficulties since the Fifth Amendment in terms proscribes only compelling any person 'in any criminal case to be a witness against himself.' Cf. Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in Our Time 1, 25—26 (1965).
151
Though weighty, I do not say these points and similar ones are conclusive, for, as the Court reiterates, the privilege embodies basic principles always capable of expansion.7 Certainly the privilege does represent a protective concern for the accused and an emphasis upon accusatorial rather than inquisitorial values in law enforcement, although this is similarly true of other limitations such as the grand jury requirement and the reasonable doubt standard. Accusatorial values, however, have openly been absorbed into the due process standard governing confessions; this indeed is why at present 'the kinship of the two rules (governing confessions and self-incrimination) is too apparent for denial.' McCormick, Evidence 155 (1954). Since extension of the general principle has already occurred, to insist that the privilege applies as such serves only to carry over inapposite historical details and engaging rhetoric and to obscure the policy choices to be made in regulating confessions.
152
Having decided that the Fifth Amendment privilege does apply in the police station, the Court reveals that the privilege imposes more exacting restrictions than does the Fourteenth Amendment's voluntariness test.8 It then emerges from a discussion of Escobedo that the Fifth Amendment requires for an admissible confession that it be given by one distinctly aware of his right not to speak and shielded from 'the compelling atmosphere' of interrogation. See ante, pp. 465—466. From these key premises, the Court finally develops the safeguards of warning, counsel, and so forth. I do not believe these premises are sustained by precedents under the Fifth Amendment.9
153
The more important premise is that pressure on the suspect must be eliminated though it be only the subtle influence of the atmosphere and surroundings. The Fifth Amendment, however, has never been thought to forbid all pressure to incriminate one's self in the situations covered by it. On the contrary, it has been held that failure to incriminate one's self can result in denial of removal of one's case from state to federal court, State of Maryland v. Soper, 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449; in refusal of a military commission, Orloff v. Willoughby, 345 U.S 83, 73 S.Ct. 534, 97 L.Ed. 842; in denial of a discharge in bankruptcy, Kaufman v. Hurwitz, 4 Cir., 176 F.2d 210; and in numerous other adverse consequences. See 8 Wigmore, Evidence § 2272, at 441—444, n. 18 (McNaughton rev. 1961); Maguire, Evidence of Guilt § 2.062 (1959). This is not to say that short of jail or torture any sanction is permissible in any case; policy and history alike may impose sharp limits. See, e.g., Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. However, the Court's unspoken assumption that any pressure violates the privilege is not supported by the precedents and it has failed to show why the Fifth Amendment prohibits that relatively mild pressure the Due Process Clause permits.
154
The Court appears similarly wrong in thinking that precise knowledge of one's rights is a settled prerequisite under the Fifth Amendment to the loss of its protections. A number of lower federal court cases have held that grand jury witnesses need not always be warned of their privilege, e.g., United States v. Scully, 2 Cir., 225 F.2d 113, 116, and Wigmore states this to be the better rule for trial witnesses. See 8 Wigmore, Evidence § 2269 (McNaughton rev. 1961). Cf. Henry v. State of Mississippi, 379 U.S. 443, 451—452, 85 S.Ct. 564, 569, 13 L.Ed.2d 408 (waiver of constitutional rights by counsel despite defendant's ignorance held allowable). No Fifth Amendment precedent is cited for the Court's contrary view. There might of course be reasons apart from Fifth Amendment precedent for requiring warning or any other safeguard on questioning but that is a different matter entirely. See infra, pp. 516—517.
155
A closing word must be said about the Assistance of Counsel Clause of the Sixth Amendment, which is never expressly relied on by the Court but whose judicial precedents turn out to be linchpins of the confession rules announced today. To support its requirement of a knowing and intelligent waiver, the Court cites Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, ante, p. 475; appointment of counsel for the indigent suspect is tied to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, ante, p. 473; the silent-record doctrine is borrowed from Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, ante, p. 475, as is the right to an express offer of counsel, ante, p. 471. All these cases imparting glosses to the Sixth Amendment concerned counsel at trial or on appeal. While the Court finds no petinent difference between judicial proceedings and police interrogation, I believe the differences are so vast as to disqualify wholly the Sixth Amendment precedents as suitable analogies in the present cases.10
156
The only attempt in this Court to carry the right to counsel into the station house occurred in Escobedo, the Court repeating several times that that stage was no less 'critical' than trial itself. See 378 U.S. 485—488, 84 S.Ct. 1762—1763. This is hardly persuasive when we consider that a grand jury inquiry, the filing of a certiorari petition, and certainly the purchase of narcotics by an undercover agent from a prospective defendant may all be equally 'critical' yet provision of counsel and advice on the score have never been thought compelled by the Constitution in such cases. The sound reason why this right is so freely extended for a criminal trial is the severe injustice risked by confronting an untrained defendant with a range of technical points of law, evidence, and tactics familiar to the prosecutor but not to himself. This danger shrinks markedly in the police station where indeed the lawyer in fulfilling his professional responsibilities of necessity may become an obstacle to truthfinding. See infra, n. 12. The Court's summary citation of the Sixth Amendment cases here seems to me best described as 'the domino method of constitutional adjudication * * * wherein every explanatory statement in a previous opinion is made the basis for extension to a wholly different situation.' Friendly, supra, n. 10, at 950.
157
III. POLICY CONSIDERATIONS.
158
Examined as an expression of public policy, the Court's new regime proves so dubious that there can be no due compensation for its weakness in constitutional law. The foregoing discussion has shown, I think, how mistaken is the Court in implying that the Constitution has struck the balance in favor of the approach the Court takes. Ante, p. 479. Rather, precedent reveals that the Fourteenth Amendment in practice has been construed to strike a different balance, that the Fifth Amendment gives the Court little solid support in this context, and that the Sixth Amendment should have no bearing at all. Legal history has been stretched before to satisfy deep needs of society. In this instance, however, the Court has not and cannot make the powerful showing that its new rules are plainly desirable in the context of our society, something which is surely demanded before those rules are engrafted onto the Constitution and imposed on every State and county in the land.
159
Without at all subscribing to the generally black picture of police conduct painted by the Court, I think it must be frankly recognized at the outset that police questioning allowable under due process precedents may inherently entail some pressure on the suspect and may seek advantage in his ignorance or weaknesses. The atmosphere and questioning techniques, proper and fair though they be, can in themselves exert a tug on the suspect to confess, and in this light '(t)o speak of any confessions of crime made after arrest as being 'voluntary' or 'uncoerced' is somewhat inaccurate, although traditional. A confession is wholly and incontestably voluntary only if a guilty person gives himself up to the law and becomes his own accuser.' Ashcraft v. State of Tennessee, 322 U.S. 143, 161, 64 S.Ct. 921, 929, 88 L.Ed. 1192 (Jackson, J., dissenting). Until today, the role of the Constitution has been only to sift out undue pressure, not to assure spontaneous confessions.11
160
The Court's new rules aim to offset these minor pressures and disadvantages intrinsic to any kind of police interrogation. The rules do not serve due process interests in preventing blatant coercion since, as I noted earlier, they do nothing to contain the policeman who is prepared to lie from the start. The rules work for reliability in confessions almost only in the Pickwickian sense that they can prevent some from being given at all.12 In short, the benefit of this new regime is simply to lessen or wipe out the inherent compulsion and inequalities to which the Court devotes some nine pages of description. Ante, pp. 448—456.
161
What the Court largely ignores is that its rules impair, if they will not eventually serve wholly to frustrate, an instrument of law enforcement that has long and quite reasonably been thought worth the price paid for it.13 There can be little doubt that the Court's new code would markedly decrease the number of confessions. To warn the suspect that he may remain silent and remind him that his confession may be used in court are minor obstructions. To require also an express waiver by the suspect and an end to questioning whenever he demurs must heavily handicap questioning. And to suggest or provide counsel for the suspect simply invites the end of the interrogation. See, supra, n. 12.
162
How much harm this decision will inflict on law enforcement cannot fairly be predicted with accuracy. Evidence on the role of confessions is notoriously incomplete, see Developments, supra, n. 2, at 941—944, and little is added by the Court's reference to the FBI experience and the resources believed wasted in interrogation. See infra, n. 19, and text. We do know that some crimes cannot be solved without confessions, that ample expert testimony attests to their importance in crime control,14 and that the Court is taking a real risk with society's welfare in imposing its new regime on the country. The social costs of crime are too great to call the new rules anything but a hazardous experimentation.
163
While passing over the costs and risks of its experiment, the Court portrays the evils of normal police questioning in terms which I think are exaggerated. Albeit stringently confined by the due process standards interrogation is no doubt often inconvenient and unpleasant for the suspect. However, it is no less so for a man to be arrested and jailed, to have his house searched, or to stand trial in court, yet all this may properly happen to the most innocent given probable cause, a warrant, or an indictment. Society has always paid a stiff price for law and order, and peaceful interrogation is not one of the dark moments of the law.
164
This brief statement of the competing considerations seems to me ample proof that the Court's preference is highly debatable at best and therefore not to be read into the Constitution. However, it may make the analysis more graphic to consider the actual facts of one of the four cases reversed by the Court. Miranda v. Arizona serves best, being neither the hardest nor easiest of the four under the Court's standards.15
165
On March 3, 1963, an 18-year-old girl was kidnapped and forcibly raped near Phoenix, Arizona. Ten days later, on the morning of March 13, petitioner Miranda was arrested and taken to the police station. At this time Miranda was 23 years old, indigent, and educated to the extent of completing half the ninth grade. He had 'an emotional illness' of the schizophrenic type, according to the doctor who eventually examined him; the doctor's report also stated that Miranda was 'alert and oriented as to time, place, and person,' intelligent within normal limits, competent to stand trial, and sane within the legal definitoin. At the police station, the victim picked Miranda out of a lineup, and two officers then took him into a separate room to interrogate him, starting about 11:30 a.m. Though at first denying his guilt, within a short time Miranda gave a detailed oral confession and then wrote out in his own hand and signed a brief statement admitting and describing the crime. All this was accomplished in two hours or less without any force, threats or promises and—I will assume this though the record is uncertain, ante, 491—492 and nn. 66—67—without any effective warnings at all.
166
Miranda's oral and written confessions are now held inadmissible under the Court's new rules. One is entitled to feel astonished that the Constitution can be read to produce this result. These confessions were obtained during brief, daytime questioning conducted by two officers and unmarked by any of the traditional indicia of coercion. They assured a conviction for a brutal and unsettling crime, for which the police had and quite possibly could obtain little evidence other than the victim's identifications, evidence which is frequently unreliable. There was, in sum, a legitimate purpose, no perceptible unfairness, and certainly little risk of injustice in the interrogation. Yet the resulting confessions, and the responsible course of police practice they represent, are to be sacrificed to the Court's own finespun conception of fairness which I seriously doubt is shared by many thinking citizens in this country.16
167
The tenor of judicial opinion also falls well short of supporting the Court's new approach. Although Escobedo has widely been interpreted as an open invitation to lower courts to rewrite the law of confessions, a significant heavy majority of the state and federal decisions in point have sought quite narrow interpretations.17 Of the courts that have accepted the invitation, it is hard to know how many have felt compelled by their best guess as to this Court's likely construction; but none of the state decisions saw fit to rely on the state privilege against self-incrimination, and no decision at all has gone as far as this Court goes today.18
168
It is also instructive to compare the attitude in this case of those responsible for law enforcement with the official views that existed when the Court undertook three major revisions of prosecutorial practice prior to this case, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. In Johnson, which established that appointed counsel must be offered the indigent in federal criminal trials, the Federal Government all but conceded the basic issue, which had in fact been recently fixed as Department of Justice policy. See Beaney, Right to Counsel 29—30, 36—42 (1955). In Mapp, which imposed the exclusionary rule on the States for Fourth Amendment violations, more than half of the States had themselves already adopted some such rule. See 367 U.S., at 651, 81 S.Ct., at 1689. In Gideon, which extended Johnson v. Zerbst to the States, an amicus brief was filed by 22 States and Commonwealths urging that course; only two States besides that of the respondent came forward to protest. See 372 U.S., at 345, 83 S.Ct., at 797. By contrast, in this case new restrictions on police questioning have been opposed by the United States and in an amicus brief signed by 27 States and Commonwealths, not including the three other States which are parties. No State in the country has urged this Court to impose the newly announced rules, nor has any State chosen to go nearly so far on its own.
169
The Court in closing its general discussion invokes the practice in federal and foreign jurisdictions as lending weight to its new curbs on confessions for all the States. A brief re sume will suffice to show that none of these jurisdictions has struck so one-sided a balance as the Court does today. Heaviest reliance is placed on the FBI practice. Differing circumstances may make this comparison quite untrustworthy,19 but in any event the FBI falls sensibly short of the Court's formalistic rules. For example, there is no indication that FBI agents must obtain an affirmative 'waiver' before they pursue their questioning. Nor is it clear that one invoking his right to silence may not be prevailed upon to change his mind. And the warning as to appointed counsel apparently indicates only that one will be assigned by the judge when the suspect appears before him; the thrust of the Court's rules is to induce the suspect to obtain appointed counsel before continuing the interview. See ante, pp. 484—486. Apparently American military practice, briefly mentioned by the Court, has these same limits and is still less favorable to the suspect than the FBI warning, making no mention of appointed counsel. Developments, supra, n. 2, at 1084—1089.
170
The law of the foreign countries described by the Court also reflects a more moderate conception of the rights of the accused as against those of society when other data are considered. Concededly, the English experience is most relevant. In that country, a caution as to silence but not counsel has long been mandated by the 'Judges' Rules,' which also place other somewhat imprecise limits on police cross-examination o suspects. However, in the courts discretion confessions can be and apparently quite frequently are admitted in evidence despite disregard of the Judges' Rules, so long as they are found voluntary under the common-law test. Moreover, the check that exists on the use of pretrial statements is counterbalanced by the evident admissibility of fruits of an illegal confession and by the judge's often-used authority to comment adversely on the defendant's failure to testify.20
171
India, Ceylon and Scotland are the other examples chosen by the Court. In India and Ceylon the general ban on police-adduced confessions cited by the Court is subject to a major exception: if evidence is uncovered by police questioning, it is fully admissible at trial along with the confession itself, so far as it relates to the evidence and is not blatantly coerced. See Developments, supra, n. 2, at 1106—1110; Reg. v. Ramasamy (1965) A.C. 1 (P.C.). Scotland's limits on interrogation do measure up to the Court's; however, restrained comment at trial on the defendant's failure to take the stand is allowed the judge, and in many other respects Scotch law redresses the prosecutor's disadvantage in ways not permitted in this country.21 The Court ends its survey by imputing added strength to our privilege against self-incrimination since, by contrast to other countries, it is embodied in a written Constitution. Considering the liberties the Court has today taken with constitutional history and precedent, few will find this emphasis persuasive.
172
In closing this necessarily truncated discussion of policy considerations attending the new confession rules, some reference must be made to their ironic untimeliness. There is now in progress in this country a massive re-examination of criminal law enforcement procedures on a scale never before witnessed. Participants in this undertaking include a Special Committee of the American Bar Association, under the chairmanship of Chief Judge Lumbard of the Court of Appeals for the Second Circuit; a distinguished study group of the American Law Institute, headed by Professors Vorenberg and Bator of the Harvard Law School; and the President's Commission on Law Enforcement and Administration of Justice, under the leadership of the Attorney General of the United States.22 Studies are also being conducted by the District of Columbia Crime Commission, the Georgetown Law Center, and by others equipped to do practical research.23 There are also signs that legislatures in some of the States may be preparing to re-examine the problem before us.24
173
It is no secret that concern has been expressed lest long-range and lasting reforms be frustrated by this Court's too rapid departure from existing constitutional standards. Despite the Court's disclaimer, the practical effect of the decision made today must inevitably be to handicap seriously sound efforts at reform, not least by removing options necessary to a just compromise of competing interests. Of course legislative reform is rarely speedy or unanimous, though this Court has been more patient in the past.25 But the legislative reforms when they come would have the vast advantage of empirical data and comprehensive study, they would allow experimentation and use of solutions not open to the courts, and they would restore the initiative in criminal law reform to those forums where it truly belongs.
174
IV. CONCLUSIONS.
175
All four of the cases involved here present express claims that confessions were inadmissible, not because of coercion in the traditional due process sense, but solely because of lack of counsel or lack of warnings concerning counsel and silence. For the reasons stated in this opinion, I would adhere to the due process test and reject the new requirements inaugurated by the Court. On this premise my disposition of each of these cases can be stated briefly.
176
In two of the three cases coming from state courts, Miranda v. Arizona (No. 759) and Vignera v. New York (No. 760), the confessions were held admissible and no other errors worth comment are alleged by petitioners. I would affirm in these two cases. The other state case is California v. Stewart (No. 584), where the state supreme court held the confession inadmissible and reversed the conviction. In that case I would dismiss the writ of certiorari on the ground that no final judgment is before us, 28 U.S.C. § 1257 (1964 ed.); putting aside the new trial open to the State in any event, the confession itself has not even been finally excluded since the California Supreme Court left the State free to show proof of a waiver. If the merits of the decision in Stewart be reached, then I believe it should be reversed and the case remanded so the state supreme court may pass on the other claims available to respondent.
177
In the federal case, Westover v. United States (No. 761), a number of issues are raised by petitioner apart from the one already dealt with in this dissent. None of these other claims appears to me tenable, nor in this context to warrant extended discussion. It is urged that the confession was also inadmissible because not voluntary even measured by due process standards and because federal-state cooperation brought the McNabb-Mallory rule into play under Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829. However, the facts alleged fall well short of coercion in my view, and I believe the involvement of federal agents in pettioner's arrest and detention by the State too slight to invoke Anderson. I agree with the Government that the admission of the evidence now protested by petitioner was at most harmless error, and two final contentions—one involving weight of the evidence and another improper prosecutor comment—seem to me without merit. I would therefore affirm Westover's conviction.
178
In conclusion: Nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously taken by the Court in the name of fulfulling its constitutional responsibilities. The foray which the Court makes today brings to mind the wise and farsighted words of Mr. Justice Jackson in Douglas v. City of Jeannette, 319 U.S. 157, 181, 63 S.Ct. 877, 889, 87 L.Ed. 1324 (separate opinion): 'This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.'
179
Mr. Justice WHITE, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.
I.
180
The proposition that the privilege against self-incrimination forbids incustody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment. As for the English authorities and the common-law history, the privilege, firmly established in the second half of the seventeenth century, was never applied except to prohibit compelled judicial interrogations. The rule excluding coerced confessions matured about 100 years later, '(b)ut there is nothing in the reports to suggest that the theory has its roots in the privilege against self-incrimination. And so far as the cases reveal, the privilege, as such, seems to have been given effect only in judicial proceedings, including the preliminary examinations by authorized magistrates.' Morgan, The Privilege Against Self-Incrimination, 34 Minn.L.Rev. 1, 18 (1949).
181
Our own constitutional provision provides that no person 'shall be compelled in any criminal case to be a witness against himself.' These words, when '(c) onsidered in the light to be shed by grammar and the dictionary * * * appear to signify simply that nobody shall be compelled to give oral testimony against himself in a criminal proceeding under way in which he is defendant.' Corwin, The Supreme Court's Construction of the Self-Incrimination Clause, 29 Mich.L.Rev. 1, 2. And there is very little in the surrounding circumstances of the adoption of the Fifth Amendment or in the provisions of the then existing state constitutions or in state practice which would give the constitutional provision any broader meaning. Mayers, The Federal Witness' Privilege Against Self-Incrimination: Constitutional or Common-Law? 4 American Journal of Legal History 107 (1960). Such a construction, however, was considerably narrower than the privilege at common law, and when eventually faced with the issues, the Court extended the constitutional privilege to the compulsory production of books and papers, to the ordinary witness before the grand jury and to witnesses generally. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, and Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110. Both rules had solid support in common-law history, if not in the history of our own constitutional provision.
182
A few years later the Fifth Amendment privilege was similarly extended to encompass the then well-established rule against coerced confessions: 'In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the fifth amendment to the constitution of the United States, commanding that no person 'shall be compelled in any criminal case to be a witness against himself." Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 187, 42 L.Ed. 568. Although this view has found approval in other cases, Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048; Powers v. United States, 223 U.S. 303, 313, 32 S.Ct. 281, 283, 56 L.Ed. 448; Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347, 83 S.Ct. 448, 453, 9 L.Ed.2d 357, it has also been questioned, see Brown v. State of Mississippi, 297 U.S. 278, 285, 56 S.Ct. 461, 464, 80 L.Ed. 682; United States v. Carignan, 342 U.S. 36, 41, 72 S.Ct. 97, 100, 96 L.Ed. 48; Stein v. People of State of New York, 346 U.S. 156, 191, n. 35, 73 S.Ct. 1077, 1095, 97 L.Ed. 1522, and finds scant support in either the English or American authorities, see generally Regina v. Scott, Dears. & Bell 47; 3 Wigmore, Evidence § 823 (3d ed. 1940), at 249 ('a confession is not rejected because of any connection with the privilege against self-crimination'), and 250, n. 5 (particularly criticizing Bram); 8 Wigmore, Evidence § 2266, at 400—401 (McNaughton rev. 1961). Whatever the source of the rule excluding coerced confessions, it is clear that prior to the application of the privilege itself to state courts, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, the admissibility of a confession in a state criminal prosecution was tested by the same standards as were applied in federal prosecutions. Id., at 6—7, 10, 84 S.Ct., at 1492—1493, 1494.
183
Bram, however, itself rejected the proposition which the Court now espouses. The question in Bram was whether a confession, obtained during custodial interrogation, had been compelled, and if such interrogation was to be deemed inherently vulnerable the Court's inquiry could have ended there. After examining the English and American authorities, however, the Court declared that:
184
'In this court also it has been settled that the mere fact that the confession is made to a police officer, while the accused was under arrest in or out of prison, or was drawn out by his questions, does not necessarily render the confession involuntary; but, as one of the circumstances, such imprisonment or interrogation may be taken into account in determining whether or not the statements of the prisoner were voluntary.' 168 U.S., at 558, 18 S.Ct., at 192.
185
In this respect the Court was wholly consistent with prior and subsequent pronouncements in this Court.
186
Thus prior to Bram the Court, in Hopt v. People of Territory of Utah, 110 U.S. 574, 583—587, 4 S.Ct. 202, 206, 28 L.Ed. 262, had upheld the admissibility of a confession made to police officers following arrest, the record being silent concerning what conversation had occurred between the officers and the defendant in the short period preceding the confession. Relying on Hopt, the Court ruled squarely on the issue in Sparf and Hansen v. United States, 156 U.S. 51, 55, 15 S.Ct. 273, 275, 39 L.Ed. 343:
187
'Counsel for the accused insist that there cannot be a voluntary statement, a free, open confession, while a defendant is confined and in irons, under an accusation of having committed a capital offence. We have not been referred to any authority in support of that position. It is true that the fact of a prisoner being in custody at the time he makes a confession is a circumstance not to be overlooked, because it bears upon the inquiry whether the confession was voluntarily made, or was extorted by threats or violence or made under the influence of fear. But confinement or imprisonment is not in itself sufficient to justify the exclusion of a confession, if it appears to have been voluntary and was not obtained by putting the prisoner in fear or by promises. Whart(on's) Cr.Ev. (9th Ed.) §§ 661, 663, and authorities cited.'
188
Accord, Pierce v. United States, 160 U.S. 355, 357, 16 S.Ct. 321, 322, 40 L.Ed. 454.
189
And in Wilson v. United States, 162 U.S. 613, 623, 16 S.Ct. 895, 899, 40 L.Ed. 1090, the Court had considered the significance of custodial interrogation without any antecedent warnings regarding the right to remain silent or the right to counsel. There the defendant had answered questions posed by a Commissioner, who had filed to advise him of his rights, and his answers were held admissible over his claim of involuntariness. 'The fact that (a defendant) is in custody and manacled does not necessarily render his statement involuntary, nor is that necessarily the effect of popular excitement shortly preceding. * * * And it is laid down that it is not essential to the admissibility of a confession that it should appear that the person was warned that what he said would be used against him; but, on the contrary, if the confession was voluntary, it is sufficient, though it appear that he was not so warned.'
190
Since Bram, the admissibility of statements made during custodial interrogation has been frequently reiterated. Powers v. United States, 223 U.S. 303, 32 S.Ct. 281, cited Wilson approvingly and held admissible as voluntary statements the accused's testimony at a preliminary hearing even though he was not warned that what he said might be used against him. Without any discussion of the presence or absence of warnings, presumably because such discussion was deemed unnecessary, numerous other cases have declared that '(t) he mere fact that a confession was made while in the custody of the police does not render it inadmissible,' McNabb v. United States, 318 U.S. 332, 346, 63 S.Ct. 608, 615, 87 L.Ed. 819; accord, United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140, despite its having been elicited by police examination. Ziang Sung Wan v. United States, 266 U.S. 1, 14, 45 S.Ct. 3; United States v. Carignan, 342 U.S. 36, 39, 72 S.Ct. 97, 99. Likewise, in Crooker v. State of California, 357 U.S. 433, 437, 78 S.Ct. 1287, 1290, 2 L.Ed.2d 1448, the Court said that '(t)he bare fact of police 'detention and police examination in private of one in official state custody' does not render involuntary a confession by the one so detained.' And finally, in Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523, a confession obtained by police interrogation after arrest was held voluntary even though the authorities refused to permit the defendant to consult with his attorney. See generally Culombe v. Connecticut, 367 U.S. 568, 587 602, 81 S.Ct. 1860, 1870, 6 L.Ed.2d 1037 (opinion of Frankfurter, J.); 3 Wigmore, Evidence § 851, at 313 (3d ed. 1940); see also Joy, Admissibility of Confessions 38, 46 (1842).
191
Only a tiny minority of our judges who have dealt with the question, including today's majority, have considered incustody interrogation, without more, to be a violation of the Fifth Amendment. And this Court, as every member knows, has left standing literally thousands of criminal convictions that rested at least in part on confessions taken in the course of interrogation by the police after arrest.
II.
192
That the Court's holding today is neither compelled nor even strongly suggested by the language of the Fifth Amendment, is at odds with American and English legal history, and involves a departure from a long line of precedent does not prove either that the Court has exceeded its powers or that the Court is wrong or unwise in its present reinter-pretation of the Fifth Amendment. It does, however, underscore the obvious—that the Court has not discovered or found the law in making today's decision, nor has it derived it from some irrefutable sources; what it has done is to make new law and new public policy in much the same way that it has in the course of interpreting other great clauses of the Constitution.1 This is what the Court historically has done. Indeed, it is what it must do and will continue to do until and unless there is some fundamental change in the constitutional distribution of governmental powers.
193
But if the Court is here and now to announce new and fundamental policy to govern certain aspects of our affairs, it is wholly legitimate to examine the mode of this or any other constitutional decision in this Court and to inquire into the advisability of its end product in terms of the long-range interest of the country. At the very least, the Court's text and reasoning should withstand analysis and be a fair exposition of the constitutional provision which its opinion interprets. Decisions like these cannot rest alone on syllogism, metaphysics or some ill-defined notions of natural justice, although each will perhaps play its part. In proceeding to such constructions as it now announces, the Court should also duly consider all the factors and interests bearing upon the cases, at least insofar as the relevant materials are available; and if the necessary considerations are not treated in the record or obtainable from some other reliable source, the Court should not proceed to formulate fundamental policies based on speculation alone.
III.
194
First, we may inquire what are the textual and factual bases of this new fundamental rule. To reach the result announced on the grounds it does, the Court must stay within the confines of the Fifth Amendment, which forbids self-incrimination only if compelled. Hence the core of the Court's opinion is that because of the 'compulsion inherent in custodial surroundings, no statement obtained from (a) defendant (in custody) can truly be the product of his free choice,' ante, at 458, absent the use of adequate protective devices as described by the Court. However, the Court does not point to any sudden inrush of new knowledge requiring the rejection of 70 years' experience. Nor does it assert that its novel conclusion reflects a changing consensus among state courts, see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, or that a succession of cases had steadily eroded the old rule and proved it unworkable, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. Rather than asserting new knowledge, the Court concedes that it cannot truly know what occurs during custodial questioning, because of the innate secrecy of such proceedings. It extrapolates a picture of what it conceives to be the norm from police investigatorial manuals, published in 1959 and 1962 or earlier, without any attempt to allow for adjustments in police practices that may have occurred in the wake of more recent decisions of state appellate tribunals or this Court. But even if the relentless application of the described procedures could lead to involuntary confessions, it most assuredly does not follow that each and every case will disclose this kind of interrogation or this kind of consequence.2 Insofar as appears from the Court's opinion, it has not examined a single transcript of any police interrogation, let alone the interrogation that took place in any one of these cases which it decides today. Judged by any of the standards for empirical investigation utilized in the social sciences the factual basis for the Court's premise is patently inadequate.
195
Although in the Court's view in-custody interrogation is inherently coercive, the Court says that the spontaneous product of the coercion of arrest and detention is still to be deemed voluntary. An accused, arrested on probable cause, may blurt out a confession which will be admissible despite the fact that he is alone and in custody, without any showing that he had any notion of his right to remain silent or of the consequences of his admission. Yet, under the Court's rule, if the police ask him a single question such as 'Do you have anything to say?' or 'Did you kill your wife?' his response, if there is one, has somehow been compelled, even if the accused has been clearly warned of his right to remain silent. Common sense informs us to the contrary. While one may say that the response was 'involuntary' in the sense the question provoked or was the occasion for the response and thus the defendant was induced to speak out when he might have remained silent if not arrested and not questioned, it is patently unsound to say the response is compelled.
196
Today's result would not follow even if it were agreed that to some extent custodial interrogation is inherently coercive. See Ashcraft v. State of Tennessee, 322 U.S. 143, 161, 64 S.Ct. 921, 929, 88 L.Ed. 1192 (Jackson, J., dissenting). The test has been whether the totality of circumstances deprived the defendant of a 'free choice to admit, to deny, or to refuse to answer,' Lisenba v. People of State of California, 314 U.S. 219, 241, 62 S.Ct. 280, 292, 86 L.Ed. 166, and whether physical or psychological coercion was of such a degree that 'the defendant's will was overborne at the time he confessed,' Haynes v. State of Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513; Lynumn v. State of Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 920, 9 L.Ed.2d 922. The duration and nature of incommunicado custody, the presence or absence of advice concerning the defendant's constitutional rights, and the granting or refusal of requests to communicate with lawyers, relatives or friends have all been rightly regarded as important data bearing on the basic inquiry. See, e.g., Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921; Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336.3 But it has never been suggested, until today, that such questioning was so coercive and accused persons so lacking in hardihood that the very first response to the very first question following the commencement of custody must be conclusively presumed to be the product of an overborne will.
197
If the rule announced today were truly based on a conclusion that all confessions resulting from custodial interrogation are coerced, then it would simply have no rational foundation. Compare Tot v. United States, 319 U.S. 463, 466, 63 S.Ct. 1241, 1244, 87 L.Ed. 1519; United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210. A fortiori that would be true of the extension of the rule to exculpatory statements, which the Court effects after a brief discussion of why, in the Court's view, they must be deemed incriminatory but without any discussion of why they must be deemed coerced. See Wilson v. United States, 162 U.S. 613, 624, 16 S.Ct. 895, 900, 40 L.Ed. 1090. Even if one were to postulate that the Court's concern is not that all confessions induced by police interrogation are coerced but rather that some such confessions are coerced and present judicial procedures are believed to be inadequate to identify the confessions that are coerced and those that are not, it would still not be essential to impose the rule that the Court has now fashioned. Transcripts or observers could be required, specific time limits, tailored to fit the cause, could be imposed, or other devices could be utilized to reduce the chances that otherwise indiscernible coercion will produce an inadmissible confession.
198
On the other hand, even if one assumed that there was an adequate factual basis for the conclusion that all confessions obtained during in-custody interrogation are the product of compulsion, the rule propounded by the Court will still be irrational, for, apparently, it is only if the accused is also warned of his right to counsel and waives both that right and the right against self-incrimination that the inherent compulsiveness of interrogation disappears. But if the defendant may not answer without a warning a question such as 'Where were you last night?' without having his answer be a compelled one, how can the Court ever accept his negative answer to the question of whether he wants to consult his retained counsel or counsel whom the court will appoint? And why if counsel is present and the accused nevertheless confesses, or counsel tells the accused to tell the truth, and that is what the accused does, is the situation any less coercive insofar as the accused is concerned? The Court apparently realizes its dilemma of foreclosing questioning without the necessary warnings but at the same time permitting the accused, sitting in the same chair in front of the same policemen, to waive his right to consult an attorney. It expects, however, that the accused will not often waive the right; and if it is claimed that he has, the State faces a severe, if not impossible burden of proof.
199
All of this makes very little sense in terms of the compulsion which the Fifth Amendment proscribes. That amendment deals with compelling the accused himself. It is his free will that is involved. Confessions and incriminating admissions, as such, are not forbidden evidence; only those which are compelled are banned. I doubt that the Court observes these distinctions today. By considering any answers to any interrogation to be compelled regardless of the content and course of examination and by escalating the requirements to prove waiver, the Court not only prevents the use of compelled confessions but for all practical purposes forbids interrogation except in the presence of counsel. That is, instead of confining itself to protection of the right against compelled self-incrimination the Court has created a limited Fifth Amendment right to counsel—or, as the Court expresses it, a 'need for counsel to protect the Fifth Amendment privilege * * *.' Ante, at 470. The focus then is not on the will of the accused but on the will of counsel and how much influence he can have on the accused. Obviously there is no warrant in the Fifth Amendment for thus installing counsel as the arbiter of the privilege.
200
In sum, for all the Court's expounding on the menacing atmosphere of police interrogation procedures, it has failed to supply any foundation for the conclusions it draws or the measures it adopts.
IV.
201
Criticism of the Court's opinion, however, cannot stop with a demonstration that the factual and textual bases for the rule it proponds are, at best, less than compelling. Equally relevant is an assessment of the rule's consequences measured against community values. The Court's duty to assess the consequences of its action is not satisfied by the utterance of the truth that a value of our system of criminal justice is 'to respect the inviolability of the human personality' and to require government to produce the evidence against the accused by its own independent labors. Ante, at 460. More than the human dignity of the accused is involved; the human personality of others in the society must also be preserved. Thus the values reflected by the privilege are not the sole desideratum; society's interest in the general security is of equal weight.
202
The obvious underpinning of the Court's decision is a deep-seated distrust of all confessions. As the Court declares that the accused may not be interrogated without counsel present, absent a waiver of the right to counsel, and as the Court all but admonishes the lawyer to advise the accused to remain silent, the result adds up to a judicial judgment that evidence from the accused should not be used against him in any way, whether compelled or not. This is the not so subtle overtone of the opinion—that it is inherently wrong for the police to gather evidence from the accused himself. And this is precisely the nub of this dissent. I see nothing wrong or immoral, and certainly nothing unconstitutional, in the police's asking a suspect whom they have reasonable cause to arrest whether or not he killed his wife or in confronting him with the evidence on which the arrest was based, at least where he has been plainly advised that he may remain completely silent, see Escobedo v. State of Illinois, 378 U.S. 478, 499, 84 S.Ct. 1758, 1769, 12 L.Ed.2d 977 (dissenting opinion). Until today, 'the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence.' Brown v. Walker, 161 U.S. 591, 596, 16 S.Ct. 644, 646, 40 L.Ed. 819, see also Hopt v. People of Territory of Utah, 110 U.S. 574, 584—585, 4 S.Ct. 202, 207. Particularly when corroborated, as where the police have confirmed the accused's disclosure of the hiding place of implements or fruits of the crime, such confessions have the highest reliability and significantly contribute to the certitude with which we may believe the accused is guilty. Moreover, it is by no means certain that the process of confessing is injurious to the accused. To the contrary it may provide psychological relief and enhance the prospects for rehabilitation.
203
This is not to say that the value of respect for the inviolability of the accused's individual personality should be accorded no weight or that all confessions should be indiscriminately admitted. This Court has long read the Constitution to proscribe compelled confessions, a salutary rule from which there should be no retreat. But I see no sound basis, factual or otherwise, and the Court gives none, for concluding that the present rule against the receipt of coerced confessions is inadequate for the task of sorting out inadmissible evidence and must be replaced by the per se rule which is now imposed. Even if the new concept can be said to have advantages of some sort over the present law, they are far outweighed by its likely undesirable impact on other very relevant and important interests.
204
The most basic function of any government is to provide for the security of the individual and of his property. Lanzetta v. State of New Jersey, 306 U.S. 451, 455, 59 S.Ct. 618, 619, 83 L.Ed. 888. These ends of society are served by the criminal laws which for the most part are aimed at the prevention of crime. Without the reasonably effective performance of the task of preventing private violence and retaliation, it is idle to talk about human dignity and civilized values.
205
The modes by which the criminal laws serve the interest in general security are many. First the murderer who has taken the life of another is removed from the streets, deprived of his liberty and thereby prevented from repeating his offense. In view of the statistics on recidivism in this country4 and of the number of instances in which apprehension occurs only after repeated offenses, no one can sensibly claim that this aspect of the criminal law does not prevent crime or contribute significantly to the personal security of the ordinary citizen.
206
Secondly, the swift and sure apprehension of those who refuse to respect the personal security and dignity of their neighbor unquestionably has its impact on others who might be similarly tempted. That the criminal law is wholly or partly ineffective with a segment of the population or with many of those who have been apprehended and convicted is a very faulty basis for concluding that it is not effective with respect to the great bulk of our citizens or for thinking that without the criminal laws, or in the absence of their enforcement, there would be no increase in crime. Arguments of this nature are not borne out by any kind of reliable evidence that I have been to this date.
207
Thirdly, the law concerns itself with those whom it has confined. The hope and aim of modern penology, fortunately, is as soon as possible to return the convict to society a better and more law-abiding man than when he left. Sometimes there is success, sometimes failure. But at least the effort is made, and it should be made to the very maximum extent of our present and future capabilities.
208
The rule announced today will measurably weaken the ability of the criminal law to perform these tasks. It is a deliberate calculus to prevent interrogations, to reduce the incidence of confessions and pleas of guilty and to increase the number of trials.5 Criminal trials, no matter how efficient the police are, are not sure bets for the prosecution, nor should they be if the evidence is not forthcoming. Under the present law, the prosecution fails to prove its case in about 30% of the criminal cases actually tried in the federal courts. See Federal Offenders: 1964, supra, note 4, at 6 (Table 4), 59 (Table 1); Federal Offenders; 1963, supra, note 4, at 5 (Table 3); District of Columbia Offenders: 1963, supra, note 4, at 2 (Table 1). But it is something else again to remove from the ordinary criminal case all those confessions which heretofore have been held to be free and voluntary acts of the accused and to thus establish a new constitutional barrier to the ascertainment of truth by the judicial process. There is, in my view, every reason to believe that a good many criminal defendants who otherwise would have been convicted on what this Court has previously thought to be the most satisfactory kind of evidence will now under this new version of the Fifth Amendment, either not be tried at all or will be acquitted if the State's evidence, minus the confession, is put to the test of litigation.
209
I have no desire whatsoever to share the responsibility for any such impact on the present criminal process.
210
In some unknown number of cases the Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity. The real concern is not the unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative proscriptions, but the impact on those who rely on the public authority for protection and who without it can only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined. There is, of course, a saving factor: the next victims are uncertain, unnamed and unrepresented in this case.
211
Nor can this decision do other than have a corrosive effect on the criminal laws as an effective device to prevent crime. A major component in its effectiveness in this regard is its swift and sure enforcement. The easier it is to get away with rape and murder, the less the deterrent effect on those who are inclined to attempt it. This is still good common sense. If it were not, we should posthaste liquidate the whole law enforcement establishment as a useless, misguided effort to control human conduct.
212
And what about the accused who has confessed or would confess in response to simple, noncoercive questioning and whose guilt could not otherwise be proved? Is it so clear that release is the best thing for him in every case? Has it so unquestionably been resolved that in each and every case it would be better for him not to confess and to return to his environment with no attempt whatsoever to help him? I think not. It may well be that in many cases it will be no less than a callous disregard for his own welfare as well as for the interests of his next victim.
213
There is another aspect to the effect of the Court's rule on the person whom the police have arrested on probable cause. The fact is that he may not be guilty at all and may be able to extricate himself quickly and simply if he were told the circumstances of his arrest and were asked to explain. This effort, and his release, must now await the hiring of a lawyer or his appointment by the court, consultation with counsel and then a session with the police or the prosecutor. Similarly, where probable cause exists to arrest several suspects, as where the body of the victim is discovered in a house having several residents, compare Johnson v. State, 238 Md. 140, 207 A.2d 643 (1965), cert. denied, 382 U.S. 1013, 86 S.Ct. 623, 15 L.Ed.2d 528, it will often be true that a suspect may be cleared only through the results of interrogation of other suspects. Here too the release of the innocent may be delayed by the Court's rule.
214
Much of the trouble with the Court's new rule is that it will operate indiscriminately in all criminal cases, regardless of the severity of the crime or the circumstances involved. It applies to every defendant, whether the professional criminal or one committing a crime of momentary passion who is not part and parcel of organized crime. It will slow down the investigation and the apprehension of confederates in those cases where time is of the essence, such as kidnapping, see Brinegar v. United States, 338 U.S. 160, 183, 69 S.Ct. 1302, 1314, 93 L.Ed. 1879 (Jackson, J., dissenting); People v. Modesto, 62 Cal.2d 436, 446, 42 Cal.Rptr. 417, 423, 398 P.2d 753, 759 (1965), those involving the national security, see United States v. Drummond, 354 F.2d 132, 147 (C.A.2d Cir. 1965) (en banc) (espionage case), pet. for cert. pending, No. 1203, Misc., O.T. 1965; cf. Gessner v. United States, 354 F.2d 726, 730, n. 10 (C.A.10th Cir. 1965) (upholding, in espionage case, trial ruling that Government need not submit classified portions of interrogation transcript), and some of those involving organized crime. In the latter context the lawyer who arrives may also be the lawyer for the defendant's colleagues and can be relied upon to insure that no breach of the organization's security takes place even though the accused may feel that the best thing he can do is to cooperate.
215
At the same time, the Court's per se approach may not be justified on the ground that it provides a 'bright line' permitting the authorities to judge in advance whether interrogation may safely be pursued without jeopardizing the admissibility of any information obtained as a consequence. Nor can it be claimed that judicial time and effort, assuming that is a relevant consideration, will be conserved because of the ease of application of the new rule. Today's decision leaves open such questions as whether the accused was in custody, whether his statements were spontaneous or the product of interrogation, whether the accused has effectively waived his rights, and whether nontestimonial evidence introduced at trial is the fruit of statements made during a prohibited interrogation, all of which are certain to prove productive of uncertainty during investigation and litigation during prosecution. For all these reasons, if further restrictions on police interrogation are desirable at this time, a more flexible approach makes much more sense than the Court's constitutional straitjacket which forecloses more discriminating treatment by legislative or rule-making pronouncements.
216
Applying the traditional standards to the cases before the Court, I would hold these confessions voluntary. I would therefore affirm in Nos. 759, 760, and 761, and reverse in No. 584.
1
Compare United States v. Childress, 347 F.2d 448 (C.A.7th Cir. 1965), with Collins v. Beto, 348 F.2d 823 (C.A.5th Cir. 1965). Compare People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361 (1964) with People v. Hartgraves, 31 Ill.2d 375, 202 N.E.2d 3'3 (1964).
2
See, e.g., Enker & Elsen, Counsel for the Suspect: Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 and Escobedo v. State of Illinois, 49 Minn.L.Rev. 47 (1964); Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St.L.J. 449 (1964); Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in Our Time 1 (1965); Dowling, Escobedo and Beyond: The Need for a Fourteenth Amendment Code of Criminal Procedure, 56 J.Crim.L., C. & P.S. 143, 156 (1965).
The complex problems also prompted discussions by jurists. Compare Bazelon, Law, Morality, and Civil Liberties, 12 U.C.L.A.L.Rev. 13 (1964), with Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929 (1965).
3
For example, the Los Angeles Police Chief stated that 'If the police are required * * * to * * * establish that the defendant was apprised of his constitutional guarantees of silence and legal counsel prior to the uttering of any admission or confession, and that he intelligently waived these guarantees * * * a whole Pandora's box is opened as to under what circumstances * * * can a defendant intelligently waive these rights. * * * Allegations that modern criminal investigation can compensate for the lack of a confession of admission in every criminal case is totally absurd!' Parker, 40 L.A.Bar Bull. 603, 607, 642 (1965). His prosecutorial counterpart, District Attorney Younger, stated that '(I)t begins to appear that many of these seemingly restrictive decisions are going to contribute directly to a more effective, efficient and professional level of law enforcement.' L.A. Times, Oct. 2, 1965, p. 1. The former Police Commissioner of New York, Michael J. Murphy, stated of Escobedo: 'What the Court is doing is akin to requiring one boxer to fight by Marquis of Queensbury rules while permitting the other to butt, gouge and bite.' N.Y. Times, May 14, 1965, p. 39. The former United States Attorney for the District of Columbia, David C. Acheson, who is presently Special Assistant to the Secretary of the Treasury (for Enforcement), and directly in charge of the Secret Service and the Bureau of Narcotics, observed that 'Prosecution procedure has, at most, only the most remote causal connection with crime. Changes in court decisions and prosecution procedure would have about the same effect on the crime rate as an aspirin would have on a tumor of the brain.' Quoted in Herman, supra, n. 2, at 500, n. 270. Other views on the subject in general are collected in Weisberg, Police Interrogation of Arrested Persons: A Skeptical View, 52 J.Crim.L., C. & P.S. 21 (1961).
4
This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused.
5
See, for example, IV National Commission on Law Observance and Enforcement, Report on Lawlessness in Law Enforcement (1931) (Wickersham Report); Booth, Confessions and Methods Employed in Procuring Them, 4 So.Calif.L.Rev. 83 (1930); Kauper, Judicial Examination of the Accused—A Remedy for the Third Degree, 30 Mich.L.Rev. 1224 (1932). It is significant that instances of third-degree treatment of prisoners almost invariably took place during the period between arrest and preliminary examination. Wickersham Report, at 169; Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U.Chi.L.Rev. 345, 357 (1936). See also Foote, Law and Polio Practice: Safeguards in the Law of Arrest, 52 Nw.U.L.Rev. 16 (1957).
6
Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936); Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940); Canty v. State of Alabama, 309 U.S. 629, 60 S.Ct. 612, 84 L.Ed. 988 (1940); White v. State of Texas, 310 U.S. 530, 60 S.Ct. 1032, 84 L.Ed. 1342 (1940); Vernon v. State of Alabama, 313 U.S. 547, 61 S.Ct. 1092, 85 L.Ed. 1513 (1941); Ward v. State of Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663 (1942); Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944); Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945); Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954). See also Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951).
7
In addition, see People v. Wakat, 415 Ill. 610, 114 N.E.2d 706 (1953); Wakat v. Harlib, 253 F.2d 59 (C.A.7th Cir.1958) (defendant suffering from broken bones, multiple bruises and injuries sufficiently serious to require eight months' medical treatment after being manhandled by five policemen); Kier v. State, 213 Md. 556, 132 A.2d 494 (1957) (police doctor told accused, who was strapped to a chair completely nude, that he proposed to take hair and skin scrapings from anything that looked like blood or sperm from various parts of his body); Bruner v. People, 113 Colo. 194, 156 P.2d 111 (1945) (defendant held in custody over two months, deprived of food for 15 hours, forced to submit to a lie detector test when he wanted to go to the toilet); People v. Matlock, 51 Cal.2d 682, 336 P.2d 505, 71 A.L.R.2d 605 (1959) (defendant questioned incessantly over an evening's time, made to lie on cold board and to answer questions whenever it appeared he was getting sleepy). Other cases are documented in American Civil Liberties Union, Illinois Division, Secret Detention by the Chicago Police (1959); Potts, The Preliminary Examination and 'The Third Degree,' 2 Baylor L.Rev. 131 (1950); Sterling, Police Interrogation and the Psychology of Confession, 14 J.Pub.L. 25 (1965).
8
The manuals quoted in the text following are the most recent and representative of the texts currently available. Material of the same nature appeals in Kidd, Police Interrogation (1940); Mulbar, Interrogation (1951); Dienstein, Technics for the Crime Investigator 97—115 (1952). Studies concerning the observed practices of the police appear in LaFave, Arrest: The Decision To Take a Suspect Into Custody 244—437, 490—521 (1965); LaFave, Detention for Investigation by the Police: An Analysis of Current Practices, 1962 Wash.U.L.Q. 331; Barrett, Police Practices and the Law—From Arrest to Release or Charge, 50 Calif.L.Rev. 11 (1962); Sterling, supra, n. 7, at 47—65.
9
The methods described in Inbau & Reid Criminal Interrogation and Confessions (1962), are a revision and enlargement of material presented in three prior editions of a predecessor text, Lie Detection and Criminal Interrogation (3d ed. 1953). The authors and their associates are officers of the Chicago Police Scientific Crime Detection Laboratory and have had extensive experience in writing, lecturing and speaking to law enforcement authorities over a 20-year period. They say that the techniques portrayed in their manuals reflect their experiences and are the most effective psychological stratagems to employ during interrogations. Similarly, the techniques described in O'Hara, Fundamentals of Criminal Investigation (1956), were gleaned from long service as observer, lecturer in police science, and work as a federal criminal investigator. All these texts have had rather extensive use among law enforcement agencies and among students of police science, with total sales and circulation of over 44,000.
10
Inbau & Reid, Criminal Interrogation and Confessions (1962), at 1.
11
O'Hara, supra, at 99.
12
Inbau & Reid, supra, at 34—43, 87. For example, in Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954), the interrogator-psychiatrist told the accused, 'We do sometimes things that are not right, but in a fit of temper or anger we sometimes do things we aren't really responsible for,' id., at 562, 74 S.Ct. at 719, and again, 'We know that morally you were just in anger. Morally, you are not to be condemned,' id., at 582, 74 S.Ct. at 729.
13
Inbau & Reid, supra, at 43—55.
14
O'Hara, supra, at 112.
15
Inbau & Reid, supra, at 40.
16
Ibid.
17
O'Hara, supra, at 104, Inbau & Reid, supra, at 58—59. See Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). A variant on the technique of creating hostility is one of engendering fear. This is perhaps best described by the prosecuting attorney in Malinski v. People of State of New York, 324 U.S. 401, 407, 65 S.Ct. 781, 784, 89 L.Ed. 1029 (1945): 'Why this talk about being undressed? Of course, they had a right to undress him to look for bullet scars, and keep the clothes off him. That was quite proper police procedure. That is some more psychology—let him sit around with a blanket on him, humiliate him there for a while; let him sit in the corner, let him think he is going to get a shellacking.'
18
O'Hara, supra, at 105—106.
19
Id., at 106.
20
Inbau & Reid, supra, at 111.
21
Ibid.
22
Inbau & Reid, supra, at 112.
23
Inbau & Reid, Lie Detection and Criminal Interrogation 185 (3d ed. 1953).
24
Interrogation procedures may even give rise to a false confession. The most recent conspicuous example occurred in New York, in 1964, when a Negro of limited intelligence confessed to two brutal murders and a rape which he had not committed. When this was discovered, the prosecutor was reported as saying: 'Call it what you want—brain-washing, hypnosis, fright. They made him give an untrue confession. The only thing I don't believe is that Whitmore was beaten.' N.Y. Times, Jan. 28, 1965, p. 1, col. 5. In two other instances, similar events had occurred. N.Y. Times, Oct. 20, 1964, p. 22, col. 1; N.Y. Times, Aug. 25, 1965, p. 1, col. 1. In general, see Borchard, Convicting the Innocent (1932); Frank & Frank, Not Guilty (1957).
25
In the fourth confession case decided by the Court in the 1962 Term, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), our disposition made it unnecessary to delve at length into the facts. The facts of the defendant's case there, however, paralleled those of his co-defendants, whose confessions were found to have resulted from continuous and coercive interrogation for 27 hours, with denial of requests for friends or attorney. See United States ex rel. Caminito v. Murphy, 222 F.2d 698 (C.A.2d Cir. 1955) (Frank, J.); People v. Bonino, 1 N.Y.2d 752, 152 N.Y.S.2d 298, 135 N.E.2d 51 (1956).
26
The absurdity of denying that a confession obtained under these circumstances is compelled is aptly portrayed by an example in Professor Sutherland's recent article, Crime and Confession, 79 Harv.L.Rev. 21, 37 (1965):
'Suppose a well-to-do testatrix says she intends to will her property to Elizabeth. John and James want her to bequeath it to them instead. They capture the testatrix, put her in a carefully designed room, out of touch with everyone but themselves and their convenient 'withnesses,' keep her secluded there for hours while they make insistent demands, weary her with contradictions of her assertions that she wants to leave her money to Elizabeth, and finally induce her to execute the will in their favor. Assume that John and James are deeply and correctly convinced that Elizabeth is unworthy and will make base use of the property if she gets her hands on it, whereas John and James have the noblest and most righteous intentions. Would any judge of probate accept the will so procured as the 'voluntary' act of the testatrix?'
27
Thirteenth century commentators found an analogue to the privilege grounded in the Bible. 'To sum up the matter, the principle that no man is to be declared guilty on his own admission is a divine decree.' Maimonides, Mishneh Torah (Code of Jewish Law), Book of Judges, Laws of the Sanhedrin, c. 18, 6, III Yale Judaica Series 52—53. See also Lamm, The Fifth Amendment and Its Equivalent in the Halakhan, 5 Judaism 53 (Winter 1956).
28
See Morgan, The Privilege Against Self-Incrimination, 34 Minn.L.Rev. 1, 9—11 (1949); 8 Wigmore, Evidence 285—295 (McNaughton rev. 1961). See also Lowell, The Judicial Use of Torture, Parts I and II, 11 Harv.L.Rev. 220, 290 (1897).
29
See Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va.L.Rev. 763 (1935); Ullmann v. United States, 350 U.S. 422, 445—449, 76 S.Ct. 497, 510—512, 100 L.Ed. 511 (1956) (Douglas, J., dissenting).
30
Compare Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896); Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964 (1955).
31
Brief for the United States, p. 28. To the same effect, see Brief for the United States, pp. 40—49, n. 44, Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829 (1943); Brief for the United States, pp. 17—18, McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608 (1943).
32
Our decision today does not indicate in any manner, of course, that these rules can be disregarded. When federal officials arrest an individual, they must as always comply with the dictates of the congressional legislation and cases thereunder. See generally, Hogan & Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo.L.J. 1 (1958).
33
The decisions of this Court have guaranteed the same procedural protection for the defendant whether his confession was used in a federal or state court. It is now axiomatic that the defendant's constitutional rights have been violated if his conviction is based, in whole or in part, on an involuntary confession, regardless of its truth or falsity. Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961); Siang Sung Wan v. United States, 266 U.S. 1, 45 S.Ct. 1, 69 L.Ed. 131 (1924). This is so even if there is ample evidence aside from the confession to support the conviction, e.g., Malinski v. People of State of New York, 324 U.S. 401, 404, 65 S.Ct. 781, 783, 89 L.Ed. 1029 (1945); Bram v. United States, 168 U.S. 532, 540—542, 18 S.Ct. 183, 185—186 (1897). Both state and federal courts now adhere to trial procedures which seek to assure a reliable and clear-cut determination of the voluntariness of the confession offered at trial, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 904 (1964); United States v. Carignan, 342 U.S. 36, 38, 72 S.Ct. 97, 98, 96 L.Ed. 48 (1951); see also Wilson v. United States, 162 U.S. 613, 624, 16 S.Ct. 895, 900, 40 L.Ed. 1090 (1896). Appellate review is exacting, see Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Blackburn v. State of Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). Whether his conviction was in a federal or state court, the defendant may secure a post-conviction hearing based on the alleged involuntary character of his confession, provided he meets the procedural requirements, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). In addition, see Murphy v. Waterfront Comm. of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594 (1964).
34
See Lisenba v. People of State of California, 314 U.S. 219, 241, 62 S.Ct. 280, 292, 86 L.Ed. 166 (1941); Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944); Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781 (1945); Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959); Lynumn v. State of Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963); Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963).
35
The police also prevented the attorney from consulting with his client. Independent of any other constitutional proscription, this action constitutes a violation of the Sixth Amendment right to the assistance of counsel and excludes any statement obtained in its wake. See People v. Donovan, 13 N.Y.2d 148, 243 N.Y.S.2d 841, 193 N.E.2d 628 (1963) (Fuld, J.).
36
In re Groban, 352 U.S. 330, 340—352, 77 S.Ct. 510, 517 523, 1 L.Ed.2d 376 (1957) (Black, J., dissenting); Note, 73 Yale L.J. 1000, 1048—1051 (1964); Comment, 31 U.Chi.L.Rev. 313, 320 (1964) and authorities cited.
37
See p. 454, supra. Lord Devlin has commented:
'It is probable that even today, when there is much less ignorance about these matters than formerly, there is still a general belief that you must answer all questions put to you by a policeman, or at least that it will be the worse for you if you do not.' Devlin, The Criminal Prosecution in England 32 (1958).
In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. Cf. Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964); Comment, 31 U.Chi.L.Rev. 556 (1964); Developments in the Law—Confessions, 79 Harv.L.Rev. 935, 1041—1044 (1966). See also Bram v. United States, 168 U.S. 532, 562, 18 S.Ct. 183, 194, 42 L.Ed. 568 (1897).
38
Cf. Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), and the recurrent inquiry into special circumstances it necessitated. See generally, Kamisar, Betts v. Brady Twenty Years Later: The Right to Counsel and Due Process Values, 61 Mich.L.Rev. 219 (1962).
39
See Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St.L.J. 449, 480 (1964).
40
Estimates of 50—90% indigency among felony defendants have been reported. Pollock, Equal Justice in Practice, 45 Minn.L.Rev. 737, 738—739 (1961); Birzon, Kasanof & Forma, The Right to Counsel and the Indigent Accused in Courts of Criminal Jurisdiction in New York State, 14 Buffalo L.Rev. 428, 433 (1965).
41
See Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in Our Time 1, 64—81 (1965). As was stated in the Report of the Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice 9 (1963):
'When government chooses to exert its powers in the criminal area, its obligation is surely no less than that of taking reasonable measures to eliminate those factors that are irrelevant to just administration of the law but which, nevertheless, may occasionally affect determinations of the accused's liability or penalty. While government may not be required to relieve the accused of his proverty, it may properly be required to minimize the influence of poverty on its administration of justice.'
42
Cf. United States ex rel. Brown v. Fay, 242 F.Supp. 273, 277 (D.C.S.D.N.Y.1965); People v. Witenski, 15 N.Y.2d 392, 259 N.Y.S.2d 413, 207 N.E.2d 358 (1965).
43
While a warning that the indigent may have counsel appointed need not be given to the person who is known to have an attorney or is known to have ample funds to secure one, the expedient of giving a warning is too simple and the rights involved too important to engage in ex post facto inquiries into financial ability when there is any doubt at all on that score.
44
If an individual indicates his desire to remain silent, but has an attorney present, there may be some circumstances in which further questioning would be permissible. In the absence of evidence of overbearing, statements them made in the presence of counsel might be free of the compelling influence of the interrogation process and might fairly be construed as a waiver of the privilege for purposes of these statements.
45
Although this Court held in Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951), over strong dissent, that a witness before a grand jury may not in certain circumstanes decide to answer some questions and then refuse to answer others, that decision has no application to the interrogation situation we deal with today. No legislative or judicial fact-finding authority is involved here, nor is there a possibility that the individual might make self-serving statements of which he could make use at trial while refusing to answer incriminating statements.
46
The distinction and its significance has been aptly described in the opinion of a Scottish court:
'In former times such questioning, if undertaken, would be conducted by police officers visiting the house or place of business of the suspect and there questioning him, probably in the presence of a relation or friend. However convenient the modern practice may be, it must normally create a situation very unfavourable to the suspect.' Chalmers v. H. M. Advocate, (1954) Sess.Cas. 66, 78 (J.C.).
47
See People v. Dorado, 62 Cal.2d 338, 354, 42 Cal.Rptr. 169, 179, 398 P.2d 361, 371 (1965).
48
In accordance with our holdings today and in Escobedo v. State of Illinois, 378 U.S. 478, 492, 84 S.Ct. 1758, 1765; Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958) and Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958) are not to be followed.
49
In quoting the above from the dissenting opinion of Mr. Justice Brandeis we, of course, do not intend to pass on the constitutional questions involved in the Olmstead case.
50
Schaefer, Federalism and State Criminal Procedure, 70 Harv.L.Rev. 1, 26 (1956).
51
Miranda, Vignera, and Westover were identified by eyewitnesses. Marked bills from the bank robbed were found in Westover's car. Articles stolen from the victim as well as from several other robbery victims were found in Stewart's home at the outset of the investigation.
52
Dealing as we do here with constitutional standards in relation to statements made, the existence of independent corroborating evidence produced at trial is, of course, irrelevant to our decisions. Haynes v. State of Washington, 373 U.S. 503, 518 519, 83 S.Ct. 1336, 1345—1346 (1963); Lynumn v. State of Illinois, 372 U.S. 528, 537—538, 83 S.Ct. 917, 922, 9 L.Ed.2d 922 (1963); Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 739 (1961); Blackburn v. State of Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (1960).
53
See, e.g., Report and Recommendations of the (District of Columbia) Commissioners' Committee on Police Arrests for Investigation (1962); American Civil Liberties Union, Secret Detention by the Chicago Police (1959). An extreme example of this practice occurred in the District of Columbia in 1958. Seeking three 'stocky' young Negroes who had robbed a restaurant, police rounded up 90 persons of that general description. Sixth-three were held overnight before being released for lack of evidence. A man not among the 90 arrested was ultimately charged with the crime. Washington Daily News, January 21, 1958, p. 5, col. 1; Hearings before a Subcommittee of the Senate Judiciary Committee on H.R. 11477, S. 2970, S. 3325, and S. 3355, 85th Cong., 2d Sess. (July 1958), pp. 40, 78.
54
In 1952, J. Edgar Hoover, Director of the Federal Bureau of Investigation, stated:
'Law enforcement, however, in defeating the criminal, must maintain inviolate the historic liberties of the individual. To turn back the criminal, yet, by so doing, destroy the dignity of the individual, would be a hollow victory.
'We can have the Constitution, the best laws in the land, and the most honest reviews by courts—but unless the law enforcement profession is steeped in the democratic tradition, maintains the highest in ethics, and makes its work a career of honor, civil liberties will continually—and without end be violated. * * * The best protection of civil liberties is an alert, intelligent and honest law enforcement agency. There can be no alternative.
'* * * Special Agents are taught that any suspect or arrested person, at the outset of an interview, must be advised that he is not required to make a statement and that any statement given can be used against him in court. Moreover, the individual must be informed that, if he desires, he may obtain the services of an attorney of his own choice.'
Hoover, Civil Liberties and Law Enforcement: The Role of the FBI, 37 Iowa L.Rev. 175, 177—182 (1952).
55
We agree that the interviewing agent must exercise his judgment in determining whether the individual waives his right to counsel. Because of the constitutional basis of the right, however, the standard for waiver iis necessarily high. And, of course, the ultimate responsibility for resolving this constitutional question lies with the courts.
56
Among the crimes within the enforcement jurisdiction of the FBI are kidnapping, 18 U.S.C. § 1201 (1964 ed.), white slavery, 18 U.S.C. §§ 2421—2423 (1964 ed.), bank robbery, 18 U.S.C. § 2113 (1964 ed.), interstate transportation and sale of stolen property, 18 U.S.C. §§ 2311—2317 (1964 ed.), all manner of conspiracies, 18 U.S.C. § 371 (1964 ed.), and violations of civil rights, 18 U.S.C. §§ 241—242 (1964 ed.). See also 18 U.S.C. § 1114 (1964 ed.) (murder of officer or employee of the United States).
57
(1964) Crim.L.Rev., at 166—170. These Rules provide in part:
'II. As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence.
'The caution shall be in the following terms:
"You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.'
'When after being cantioned a person is being questioned, or elects to make a statement, a record shall be kept of the time and place at which any such questioning or statement began and ended and of the persons present.
'III. * * *
'(b) It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted.
'IV. All written statements made after caution shall be taken in the following manner:
'(a) If a person says that he wants to make a statement he shall be told that it is intended to make a written record of what he says.
'He shall always be asked whether he wishes to write down himself what he wants to say; if he says that he cannot write or that he would like someone to write it for him, a police officer may offer to write the statement for him. * * *
'(b) Any person writing his own statement shall be allowed to do so without any prompting as distinct from indicating to him what matters are material.
'(d) Whenever a police officer writes the statement, he shall take down the exact words spoken by the person making the statement, without putting any questions other than such as may be needed to make the statement coherent, intelligible and relevant to the material matters: he shall not prompt him.'
The prior Rules appear in Devlin, The Criminal Prosecution in England 137—141 (1958).
Despite suggestions of some laxity in enforcement of the Rules and despite the fact some discretion as to admissibility is invested in the trial judge, the Rules are a significant influence in the English criminal law enforcement system. See, e.g., (1964) Crim.L.Rev., at 182; and articles collected in (1960) Crim.L.Rev., at 298—356.
58
The introduction to the Judges' Rules states in part:
These Rules do not affect the principles
'(c) That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so. * * *' (1964) Crim.L.Rev., at 166—167.
59
As stated by the Lord Justice General in Chalmers v. H. M. Advocate, (1954) Sess.Cas. 66, 78 (J.C.):
'The theory of our law is that at the stage of initial investigation the police may question anyone with a view to acquiring information which may lead to the detection of the criminal; but that, when the stage has been reached at which suspicion, or more than suspicion, has in their view centred upon some person as the likely perpetrator of the crime, further interrogation of that person becomes very dangerous, and, if carried too far, e.g., to the point of extracting a confession by what amounts to cross-examination, the evidence of that confession will almost certainly be excluded. Once the accused has been apprehended and charged he has the statutory right to a private interview with a solicitor and to be brought before a magistrate with all convenient speed so that he may, if so advised, emit a declaration in presence of his solicitor under conditions which safeguard him against prejudice.'
60
'No confession made to a police officer shall be provided as against a person accused of any offense.' Indian Evidence Act § 25.
'No confession made by any person whilst he is in the custody of a police officer unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.' Indian Evidence Act § 26. See 1 Ramaswami & Rajagopalan, Law of Evidence in India 553—569 (1962). To avoid any continuing effect of police pressure or inducement, the Indian Supreme Court has invalidated a confession made shortly after police brought a suspect before a magistrate, suggesting: '(I)t would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession.' Sarwan Singh v. State of Punjab, 44 All India Rep. 1957, Sup.Ct. 637, 644.
61
I Legislative Enactments of Ceylon 211 (1958).
62
10 U.S.C. § 831(b) (1964 ed.).
63
United States v. Rose, 24 CMR 251 (1957); United States v. Gunnels, 23 CMR 354 (1957).
64
Although no constitution existed at the time confessions were excluded by rule of evidence in 1872, India now has a written constitution which includes the provision that 'No person accused of any offence shall be compelled to be a witness against himself.' Constitution of India, Article 20(3). See Tope, The Constitution of India 63—67 (1960).
65
Brief for United States in No. 761, Westover v. United States, pp. 44—47; Brief for the State of New York as amicus curiae, pp. 35—39. See also Brief for the National District Attorneys Association as amicus curiae, pp. 23—26.
66
Miranda was also convicted in a separate trial on an unrelated robbery charge not presented here for review. A statement introduced at that trial was obtained from Miranda during the same interrogation which resulted in the confession involved here. At the robbery trial, one officer testified that during the interrogation he did not tell Miranda that anything he said would be held against him or that he could consult with an attorney. The other officer stated that they had both told Miranda that anything he said would be used against him and that he was not required by law to tell them anything.
67
One of the officers testified that he read this paragraph to Miranda. Apparently, however, he did not do so until after Miranda had confessed orally.
68
Vignera thereafter successfully attacked the validity of one of the prior convictions, Vignera v. Wilkins, Civ. 9901 (D.C.W.D.N.Y. Dec. 31, 1961) (unreported), but was then resentenced as a second-felony offender to the same term of imprisonment as the original sentence. R. 31—33.
69
The failure of defense counsel to object to the introduction of the confession at trial, noted by the Court of Appeals and emphasized by the Solicitor General, does not preclude our consideration of the issue. Since the trial was held prior to our decision in Escobedo and, of course, prior to our decision today making the objection available, the failure to object at trial does not constitute a waiver of the claim. See, e.g., United States ex rel. Angelet v. Fay, 333 F.2d 12, 16 (C.A.2d Cir. 1964), aff'd, 381 U.S. 654, 85 S.Ct. 1750, 14 L.Ed.2d 623 (1965). Cf. Ziffrin, Inc. v. United States, 318 U.S. 73, 78, 63 S.Ct. 465, 87 L.Ed. 621 (1943).
70
Because of this disposition of the case, the California Supreme Court did not reach the claims that the confession was coerced by police threats to hold his ailing wife in custody until he confessed, that there was no hearing as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and that the trial judge gave an instruction condemned by the California Supreme Court's decision in People v. Morse, 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33 (1964).
71
After certiorari was granted in this case, respondent moved to dismiss on the ground that there was no final judgment from which the State could appeal since the judgment below directed that he be retried. In the event respondent was successful in obtaining an acquittal on retrial, however, under California law the State would have no appeal. Satisfied that in these circumstances the decision below constituted a final judgment under 28 U.S.C. § 1257(3) (1964 ed.), we denied the motion. 383 U.S. 903, 86 S.Ct. 885.
1
E.g., Inbau & Reid, Criminal Interrogation and Confessions (1962); O'Hara, Fundamentals of Criminal Investigation (1956); Dienstein, Technics for the Crime Investigator (1952); Mulbar, Interrogation (1951); Kidd, Police Interrogation (1940).
2
As developed by my Brother HARLAN, post, pp. 506—514, such cases, with the exception of the long-discredited decision in Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), were adequately treated in terms of due process.
3
The Court points to England, Scotland, Ceylon and India as having equally rigid rules. As my Brother Harlan points out, post, pp. 521—523, the Court is mistaken in this regard, for it overlooks counterbalancing prosecutorial advantages. Moreover, the requirements of the Federal Bureau of Investigation do not appear from the Solicitor General's latter, ante, pp. 484—486, to be as strict as those imposed today in at least two respects: (1) The offer of counsel is articulated only as 'a right to counsel'; nothing is said about a right to have counsel present at the custodial interrogation. (See also the examples cited by the Solicitor General, Westover v. United States, 342 F.2d 684, 685 (9 Cir., 1965) ('right to consult counsel'); Jackson v. United States, 119 U.S.App.D.C. 100, 337 F.2d 136, 138 (1964) (accused 'entitled to an attorney').) Indeed, the practice is that whenever the suspect 'decides that he wishes to consult with counsel before making a statement, the interview is terminated at that point. * * * When counsel appears in person, he is permitted to confer with his client in private.' This clearly indicates that the FBI does not warn that counsel may be present during custodial interrogation. (2) The Solicitor General's letter states: '(T)hose who have been arrested for an offense under FBI jurisdiction, or whose arrest is contemplated following the interview, (are advised) of a right to free counsel if they are unable to pay, and the availability of such counsel from the Judge.' So phrased, this warning does not indicate that the agent will secure counsel. Rather, the statement may well be interpreted by the suspect to mean that the burden is placed upon himself and that he may have counsel appointed only when brought before the judge or at trial but not at custodial interrogation. As I view the FBI practice, it is not as broad as the one laid down today by the Court.
4
In my view there is 'no significant support' in our cases for the holding of the Court today that the Fifth Amendment privilege, in effect, forbids custodial interrogation. For a discussion of this point see the dissenting opinion of my Brother WHITE, post, pp. 526—531.
1
My discussion in this opinion is directed to the main questions decided by the Court and necessary to its decision; in ignoring some of the collateral points, I do not mean to imply agreement.
2
The case was Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (quoted, ante, p. 461). Its historical premises were afterwards disproved by Wigmore, who concluded 'that no assertions could be more unfounded.' 3 Wigmore, Evidence § 823, at 250, n. 5 (3d ed. 1940). The Court in United States v. Carignan, 342 U.S. 36, 41, 72 S.Ct. 97, 100, 96 L.Ed. 48, declined to choose between Bram and Wigmore, and Stein v. People of State of New York, 346 U.S. 156, 191, n. 35, 73 S.Ct. 1077, 1095, 97 L.Ed. 1522, cast further doubt on Bram. There are, however, several Court opinions which assume in dicta the relevance of the Fifth Amendment privilege to confessions. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048; see Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347, 83 S.Ct. 448, 453, 9 L.Ed.2d 357. On Bram and the federal confession cases generally, see Developments in the Law—Confessions, 79 Harv.L.Rev. 935, 959—961 (1966).
3
Comment, 31 U.Chi.L.Rev. 313 & n. 1 (1964), states that by the 1963 Term 33 state coerced-confession cases had been decided by this Court, apart from per curiams. Spano v. People of State of New York, 360 U.S. 315, 321, n. 2, 79 S.Ct. 1202, 1206, 3 L.Ed.2d 1265, collects 28 cases.
4
Bator & Vorenberg, Arrest, Detention, Interrogation and the Right to Counsel, 66 Col.L.Rev. 62, 73 (1966): 'In fact, the concept of involuntariness seems to be used by the courts as a shorthand to refer to practices which are repellent to civilized standards of decency or which, under the circumstances, are thought to apply a degree of pressure to an individual which unfairly impairs his capacity to make a rational choice.' See Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St.L.J. 449, 452—458 (1964); Developments, supra, n. 2, at 964—984.
5
See the cases synopsized in Herman, supra, n. 4, at 456, nn. 36—39. One not too distant example is Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872, in which the suspect was kicked and threatened after his arrest, questioned a little later for two hours, and isolated from a lawyer trying to see him; the resulting confession was held admissible.
6
Among the examples given in 8 Wigmore, Evidence § 2266, at 401 (McNaughton rev. 1961), are these: the privilege applies to any witness, civil or criminal, but the confession rule protects only criminal defendants; the privilege deals only with compulsion, while the confession rule may exclude statements obtained by trick or promise; and where the privilege has been nullified—as by the English Bankruptcy Act—the confession rule may still operate.
7
Additionally, there are precedents and even historical arguments that can be arrayed in favor of bringing extra-legal questioning within the privilege. See generally Maguire, Evidence of Guilt § 2.03 at 15—16 (1959).
8
This, of course, is implicit in the Court's introductory announcement that '(o)ur decision in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) (extending the Fifth Amendment privilege to the States) necessitates an examination of the scope of the privilege in state cases as well.' Ante, p. 463. It is also inconsistent with Malloy itself, in which extension of the Fifth Amendment to the States rested in part on the view that the Due Process Clause restriction on state confessions has in recent years been 'the same standard' as that imposed in federal prosecutions assertedly by the Fifth Amendment. 378 U.S., at 7, 84 S.Ct., at 1493.
9
I lay aside Escobedo itself; it contains no reasoning or even general conclusions addressed to the Fifth Amendment and indeed its citation in this regard seems surprising in view of Escobedo's primary reliance on the Sixth Amendment.
10
Since the Court conspicuously does not assert that the Sixth Amendment itself warrants its new police-interrogation rules, there is no reason now to draw out the extremely powerful historical and precedential evidence that the Amendment will bear no such meaning. See generally Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929, 943—948 (1965).
11
See supra, n. 4, and text. Of course, the use of terms like voluntariness involves questions of law and terminology quite as much as questions of fact. See Collins v. Beto, 5 Cir., 348 F.2d 823, 832 (concurring opinion); Bator & Vorenberg, supra, n. 4, at 72—73.
12
The Court's vision of a lawyer 'mitigat(ing) the dangers of untrustworthiness' ante, p. 470) by witnessing coercion and assisting accuracy in the confession is largely a fancy; for if counsel arrives, there is rarely going to be a police station confession. Watts v. State of Indiana, 338 U.S. 49, 59, 69 S.Ct. 1347, 1358, 93 L.Ed. 1801 (separate opinion of Jackson, J.): '(A)ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.' See Enker & Elsen, Counsel for the Suspect, 49 Minn.L.Rev. 47, 66—68 (1964).
13
This need is, of course, what makes so misleading the Court's comparison of a probate judge readily setting aside as involuntary the will of an old lady badgered and beleaguered by the new heirs. Ante, pp. 457-458, n. 26. With wills, there is no public interest save in a totally free choice; with confessions, the solution of crime is a countervailing gain, however the balance is resolved.
14
See, e.g., the voluminous citations to congressional committee testimony and other sources collected in Culombe v. Connecticut, 367 U.S. 568, 578—579, 81 S.Ct. 1860, 1865, 1866, 6 L.Ed.2d 1037, (Frankfurter, J., announcing the Court's judgment and an opinion).
15
In Westover, a seasoned criminal was practically given the Court's full complement of warnings and did not heed them. The Stewart case, on the other hand, involves long detention and successive questioning. In Vignera, the facts are complicated and the record somewhat incomplete.
16
'(J)ustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.' Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674 (Cardozo, J.).
17
A narrow reading is given in: United States v. Robinson, 354 F.2d 109 (C.A.2d Cir.); Davis v. State of North Carolina, 339 F.2d 770 (C.A.4th Cir.); Edwards v. Holman, 342 F.2d 679 (C.A.5th Cir.); United States ex rel. Townsend v. Ogilvie, 334 F.2d 837 (C.A.7th Cir.); People v. Hartgraves, 31 Ill.2d 375, 202 N.E.2d 33; State v. Fox, 131 N.W.2d 684 (Iowa); Rowe v. Commonwealth, 394 S.W.2d 751 (Ky.); Parker v. Warden, 236 Md. 236, 203 A.2d 418; State v. Howard, 383 S.W.2d 701 (Mo.); Bean v. State, 398 P.2d 251 (Nev.); State of New Jersey v. Hodgson, 44 N.J. 151, 207 A.2d 542; People v. Gunner, 15 N.Y.2d 226, 257 N.Y.S.2d 924, 205 N.E.2d 852; Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A.2d 288; Browne v. State, 24 Wis.2d 491, 129 N.W.2d 175, 131 N.W.2d 169.
An ample reading is given in: United States ex rel. Russo v. State of New Jersey, 351 F.2d 429 (C.A.3d Cir.); Wright v. Dickson, 336 F.2d 878 (C.A.9th Cir.); People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361; State v. Dufour, 206 A.2d 82 (R.I.); State v. Neely, 239 Or. 487, 395 P.2d 557, modified 398 P.2d 482.
The cases in both categories are those readily available; there are certainly many others.
18
For instance, compare the requirements of the catalytic case of People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, with those laid down today. See also Traynor, The Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U.Chi.L.Rev. 657, 670.
19
The Court's obiter dictum notwithstanding ante, p. 486, there is some basis for believing that the staple of FBI criminal work differs importantly from much crime within the ken of local police. The skill and resources of the FBI may also be unusual.
20
For citations and discussion covering each of these points, see Developments, supra, n. 2, at 1091—1097, and Enker & Elsen, supra, n. 12, at 80 & n. 94.
21
On Comment, see Hardin, Other Answers: Search and Seizure, Coerced Confession, and Criminal Trial in Scotland, 113 U.Pa.L.Rev. 165, 181 and nn. 96—97 (1964). Other examples are less stringent search and seizure rules and no automatic exclusion for violation of them, id., at 167—169; guilt based on majority jury verdicts, id., at 185; and pre-trial discovery of evidence on both sides, id., at 175.
22
Of particular relevance is the ALI's drafting of a Model Code of Pre-Arraignment Procedure, now in its first tentative draft. While the ABA and National Commission studies have wider scope, the former is lending its advice to the ALI project and the executive director of the latter is one of the reporters for the Model Code.
23
See Brief for the United States in Westover, p. 45. The N.Y. Times, June 3, 1966, p. 41 (late city ed.) reported that the Ford Foundation has awarded $1,100,000 for a five-year study of arrests and confessions in New York.
24
The New York Assembly recently passed a bill to require certain warnings before an admissible confession is taken, though the rules are less strict than are the Court's. N.Y. Times, May 24, 1966, p. 35 (late city ed.).
25
The Court waited 12 years after Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, declared privacy against improper state intrusions to be constitutionally safeguarded before it concluded in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, that adequate state remedies had not been provided to protect this interest so the exclusionary rule was necessary.
1
Of course the Court does not deny that it is departing from prior precedent; it expressly overrules Crooker and Cicenia, ante, at 479, n. 48, and it acknowledges that in the instant 'cases we might not find the defendants' statements to have been involuntary in traditional terms,' ante, at 457.
2
In fact, the type of sustained interrogation described by the Court appears to be the exception rather than the rule. A survey of 399 cases in one city found that in almost half of the cases the interrogation lasted less than 30 minutes. Barrett, Police Practices and the Law—From Arrest to Release or Charge, 50 Calif.L.Rev. 11, 41—45 (1962). Questioning tends to be confused and sporadic and is usually concentrated on confrontations with witnesses or new items of evidence, as these are obtained by officers conducting the investigation. See generally LaFave, Arrest: The Decision to Take a Suspect into Custody 386 (1965); ALI, A Model Code of Pre-Arraignment Procedure, Commentary § 5.01, at 170, n. 4 (Tent.Draft No. 1, 1966).
3
By contrast, the Court indicates that in applying this new rule it 'will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given.' Ante, at 468. The reason given is that assessment of the knowledge of the defendant based on information as to age, education, intelligence, or prior contact with authorities can never be more than speculation, while a warning is a clear-cut fact. But the officers' claim that they gave the requisite warnings may be disputed, and facts respecting the defendant's prior experience may be undisputed and be of such a nature as to virtually preclude any doubt that the defendant knew of his rights. See United States v. Bolden, 355 F.2d 453 (C.A.7th Cir.1965), petition for cert. pending No. 1146, O.T. 1965 (Secret Service agent); People v. Du Bont, 235 Cal.App.2d 844, 45 Cal.Rptr. 717, pet. for cert. pending No. 1053, Misc., O.T. 1965 (former police officer).
4
Precise statistics on the extent of recidivism are unavailable, in part because not all crimes are solved and in part because criminal records of convictions in different jurisdictions are not brought together by a central data collection agency. Beginning in 1963, however, the Federal Bureau of Investigation began collating data on 'Careers in Crime,' which it publishes in its Uniform Crime Reports. Of 92,869 offenders processed in 1963 and 1964, 76% had a prior arrest record on some charge. Over a period of 10 years the group had accumulated 434,000 charges. FBI, Uniform Crime Reports—1964, 27—28. In 1963 and 1964 between 23% and 25% of all offenders sentenced in 88 federal district courts (excluding the District Court for the District of Columbia) whose criminal records were reported had previously been sentenced to a term of imprisonment of 13 months or more. Approximately an additional 40% had a prior record less than prison (juvenile record, probation record, etc.). Administrative Office of the United States Courts, Federal Offenders in the United States District Courts: 1964, x, 36 (hereinafter cited as Federal Offenders: 1964); Administrative
Office of the United States Courts, Federal Offenders in the United States District Courts: 1963, 25—27 (hereinafter cited as Federal Offenders: 1963). During the same two years in the District Court for the District of Columbia between 28% and 35% of those sentenced had prior prison records and from 37% to 40% had a prior record less than prison. Federal Offenders: 1964, xii, 64, 66; Administrative Office of the United States Courts, Federal Offenders in the United States District Court for the District of Columbia: 1963, 8, 10 (hereinafter cited as District of Columbia Offenders: 1963).
A similar picture is obtained if one looks at the subsequent records of those released from confinement. In 1964, 12.3% of persons on federal probation had their probation revoked because of the commission of major violations (defined as one in which the probationer has been committed to imprisonment for a period of 90 days or more, been placed on probation for over one year on a new offense, or has absconded with felony charges outstanding). Twenty-three and two-tenths percent of parolees and 16.9% of those who had been mandatorily released after service of a portion of their sentence likewise committed major violations. Reports of the Proceedings of the Judicial Conference of the United States and Annual Report of the Director of the Administrative Office of the United States Courts: 1965, 138. See also Mandel et al., Recidivism Studied and Defined, 56 J. Crim.L., C. & P.S. 59 (1965) (within five years of release 62.33% of sample had committed offenses placing them in recidivist category).
5
Eighty-eight federal district courts (excluding the District Court for the District of Columbia) disposed of the cases of 33,381 criminal defendants in 1964. Only 12.5% of those cases were actually tried. Of the remaining cases, 89.9% were terminated by convictions upon pleas of guilty and 10.1% were dismissed. Stated differently, approximately 90% of all convictions resulted from guilty pleas. Federal Offenders: 1964, supra, note 4, 3—6. In the District Court for the District of Columbia a higher percentage, 27%, went to trial, and the defendant pleaded guilty in approximately 78% of the cases terminated prior to trial. Id., at 58—59. No reliable statistics are available concerning the percentage of cases in which guilty pleas are induced because of the existence of a confession or of physical evidence unearthed as a result of a confession. Undoubtedly the number of such cases is substantial.
Perhaps of equal significance is the number of instances of known crimes which are not solved. In 1964, only 388,946, or 23.9% of 1,626,574 serious known offenses were cleared. The clearance rate ranged from 89.8% for homicides to 18.7% for larceny. FBI, Uniform Crime Reports—1964, 20—22, 101. Those who would replace interrogation as an investigatorial tool by modern scientific investigation techniques significantly overestimate the effectiveness of present procedures, even when interrogation is included.
| 01
|
384 U.S. 678
86 S.Ct. 1674
16 L.Ed.2d 853
John NICHOLAS, Trustee of the Estate of Beachcomber Motel, Inc., Bankrupt, Petitioner,v.UNITED STATES.
No. 650.
Argued April 19, 1966.
Decided June 13, 1966.
John H. Gunn, Miami, Fla., for petitioner.
C. Moxley Featherston, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The question presented in this case is whether a superseding trustee in bankruptcy is liable for interest and penalties on federal taxes incurred by a debtor in possession during an arrangement proceeding under Chapter XI of the Bankruptcy Act. The facts are not in dispute.
2
On August 6, 1958, Beachcomber Motel, Inc., a Florida corporation operating a motel in Miami Beach, filed an original petition for an arrangement with its unsecured creditors under Chapter XI. Bankruptcy Act § 322, 11 U.S.C. § 722 (1964 ed.). During the pendency of the arrangement proceeding, the corporation was permitted to operate its business as a debtor in possession under the authority of the bankruptcy court. In the course of its business operations, the corporation withheld federal income taxes1 and social security taxes2 from the wages paid to its employees and collected federal excise taxes on the receipts from its cabaret.3 Subsequently, the corporation was dispossessed of its property and the motel premises were closed.
3
Unable to proceed with a plan of arrangement with its creditors, the corporation filed a petition in bankruptcy on September 17, 1958, and was adjudged a bankrupt on the same date. Bankruptcy Act § 376(2), 11 U.S.C. § 776(2) (1964 ed.). On September 19, 1958, a trustee in bankruptcy, the petitioner in this case, was appointed. On October 31, 1958, the federal income taxes withheld, as well as the social security taxes and the cabaret taxes, were due to be paid. On January 31, 1959, the payroll tax imposed on employers by the Federal Unemployment Tax Act was due.4 The trustee in bankruptcy neither paid these taxes nor filed any of the returns required with respect to them. On April 11, 1963, the United States submitted an administrative expense statement in the bankruptcy proceeding, claiming as administrative expenses the principal of the taxes due, penalties assessed for the trustee's failure to file the returns for the taxes,5 and interest that had accumulated and would continue to accumulate on the taxes and penalties until they were paid.6
4
The referee in bankruptcy allowed the Government's claim for the principal of the taxes but disallowed the claims for penalties and interest.7 The referee's order was affirmed in all respects by the District Court. The Court of Appeals for the Fifth Circuit reversed the judgment of the District Court and allowed the claims for penalties and interest on the taxes. 5 Cir., 346 F.2d 32. Shortly after that decision, the Court of Appeals for the Eighth Circuit reached the opposite result with respect to a similar claim by the Government for interest on taxes incurred during a Chapter XI proceeding,8 and we granted certiorari to resolve this conflict. 382 U.S. 971, 86 S.Ct. 541, 15 L.Ed.2d 464.
I.
5
It is a well-settled principle of American bankruptcy law that in cases of ordinary bankruptcy, the accumulation of interest on claims against a bankrupt estate is suspended as of the date the petition in bankruptcy is filed. Sexton v. Dreyfus, 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244.9 That rule, grounded in historical considerations of equity and administrative convenience, was specifically made applicable to the accumulation of interest on claims for taxes by the decision of this Court in City of New York v. Saper, 336 U.S. 328, 69 S.Ct. 554, 93 L.Ed. 710.10
6
The debts in Sexton, like the taxes in Saper, were incurred during the regular business operations of the taxpayer, prior to the invocation of any procedures under the Bankruptcy Act, whereas the taxes in the present case were incurred after a petition invoking Chapter XI of the Act had been filed. On the basis of that distinction, the Government contends that the taxes here in question were entitled to bear interest throughout the bankruptcy period. We draw no such conclusion from that distinction.
7
We believe that the decisions of this Court in Sexton and Saper, reflect the broad equitable principle that creditors should not be disadvantaged vis-a -vis one another by legal delays attributable solely to the time-consuming procedures inherent in the administration of the bankruptcy laws.11 In the context of interest-bearing debts, the equitable principle enunciated in Sexton and Saper rests at bottom on an awareness of the inequity that would result if, through the continuing accumulation of interest in the course of subsequent bankruptcy proceedings, obligations bearing relatively high rates of interest were permitted to absorb the assets of a bankrupt estate whose funds were already inadequate to pay the principal of the debts owed by the estate.12
8
To be sure, the amount of interest that accumulates on a debt incurred during a Chapter XI arrangement depends upon the duration of a proceeding that takes place under the direction and authority of the bankruptcy court. Bankruptcy Act §§ 342, 343, 11 U.S.C. §§ 742, 743 (1964 ed.). But interest claimed on such a debt does not arise through a 'delay' of the law in any meaningful sense. The underlying obligation of the debtor in possession is incurred as part of a judicial process of rehabilitation of the debtor that the procedures of Chapter XI are designed to facilitate. Interest on a current Chapter XI obligation is therefore different in kind from interest claimed during the arrangement period on a debt incurred before the Chapter XI petition was filed. From the vantage point of pre-arrangement creditors, the panorama of a Chapter XI proceeding is intimately bound up with the intrusion of the bankruptcy law into the previously untrammelled relationship between a debtor and his creditors. For these creditors, the filing of the Chapter XI petition may legitimately be regarded as introducing the very sort of legal delay that bankruptcy courts, in denying claims for interest, have traditionally characterized as inequitable. On the other hand, from the vantage point of the creditor whose credit relationship arose during the Chapter XI proceeding itself, it is the subsequent filing of a petition in bankruptcy that marks the intervention of meaningful legal delays. The equitable rationale underlying our decisions in Sexton and Saper is therefore fully applicable to cases in which a Chapter XI proceeding is superseded by a liquidating bankruptcy.13
9
The principle that our past decisions thus establish is that the accumulation of interest on a debt must be suspended once an enterprise enters a period of bankruptcy administration beyond that in which the underlying interest-bearing obligation was incurred. In Saper, there were two relevant periods to be considered—the pre-petition period, before the petition in bankruptcy was filed, and the post-petition period, during the bankruptcy liquidation. The Court there upheld the accumulation of interest throughout the pre-petition period on taxes incurred during that period; it rejected only the claim for post-petition interest on the pre-petition taxes. By contrast, the circumstances of the present case commend a division into three periods—the pre-arrangement period, the arrangement period, and the liquidating bankruptcy period. A tax incurred within any one of these three periods would we think, be entitled to bear interest against the bankrupt estate until, but not beyond, the close of the period in which it was incurred. Thus, in a case concerning taxes incurred during the first period—that is, before the filing of a petition for a Chapter XI arrangement—the Court has summarily affirmed a judgment holding that the accumulation of interest must be suspended as of the date the Chapter XI petition was filed.14 Where, as in the present case, the taxes have been incurred in the Chapter XI proceeding itself, application of the principle enunciated in Sexton and Saper permits interest to accrue throughout the arrangement proceeding; the principle requires only that the accumulation of interest be suspended once a petition in bankruptcy is filed.
10
The allowance of interest on Chapter XI debts until the filing of a petition in bankruptcy promotes the availability of capital to a debtor in possession and enhances the likelihood of achieving the goal of the proceeding, the ultimate rehabilitation of the debtor.15 Disallowance of interest on Chapter XI debts might seriously hinder the availability of such funds and might in many cases foreclose the prospect of the debtor's recovery.16 No such significant detriment to the viability of a Chapter XI proceeding is imposed by the suspension of interest once the proceeding enters the liquidating bankruptcy period, since potential creditors can readily adjust their interest rates to accommodate their prognosis of the particular debtor's chances of rehabilitation.
11
The division of the proceedings in the present case into three separate periods defining the permissible accumulation of interest is supported by the threefold hierachy of priorities for tax claims under the Bankruptcy Act. Taxes incurred in the pre-arrangement period must be content with a fourth priority under § 64a(4) of the Bankruptcy Act.17 On the other hand, taxes incurred during the arrangement period are expenses of the Chapter XI proceedings and are therefore technically a part of the first priority under § 64a(1).18 The final sentence of that section, however, subordinates arrangement expenses within that priority to the expenses of the superseding bankruptcy administration. Tax claims incurred during Chapter XI proceedings are therefore in fact junior to claims for expenses incurred in subsequent bankruptcy proceedings. The suspension of interest on taxes incurred during the arrangement period as of the date a bankruptcy petition is filed thus corresponds to the suspension of interest on pre-arrangement taxes when a Chapter XI petition is filed. Moreover, the suspension of interest extricates the superseding trustee from a serious dilemma he would otherwise face, whether to pay subordinated Chapter XI tax claims prematurely in order to forestall the accrual of interest, or to increase the burden on the bankrupt estate by allowing the interest to accumulate.19
12
Aside from its basis in the equitable principle that creditors of a bankrupt estate should not be disadvantaged solely by means of the law's delay, the confinement of the accrual of interest on Chapter XI obligations to the arrangement proceeding itself is also grounded in significant considerations of administrative convenience. As the Court recognized in Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 164, 67 S.Ct. 237, 240, 91 L.Ed. 162 'Accrual of simple interest on unsecured claims in bankruptcy was prohibited in order that the administrative inconvenience of continuous recomputation of interest causing recomputation of claims could be avoided.' Thus, by accepting as a cutoff the date of filing of the petition in bankruptcy, the trustee avoids the potentially laborious procedure of recalculating the pro rata share to which each Chapter XI creditor is entitled whenever a distribution in the supervening bankruptcy is carried out.20
13
The application of the principle of our past decisions to the facts of the present case is straightforward. Since the taxes in question were incurred during the Chapter XI arrangement proceeding itself, the United States was entitled to interest on those taxes for the duration of that period. The actual arrangement proceeding in this case, however, terminated before the taxes became payable, and, therefore, no interest on the taxes accumulated before the petition in bankruptcy was filed by the debtor in possession. The entire amount of interest sought by the United States represents interest claimed for the liquidating bankruptcy period. Since we hold that the accumulation of interest on debts incurred during Chapter XI proceedings is suspending on the date the petition in the superseding bankruptcy is filed, it is clear that the United States is not entitled to the interest that it seeks on the taxes in this case.
14
The result here is in no way inconsistent with the provisions of 28 U.S.C. § 960, which states that persons conducting a business under the authority of a federal court shall be taxed as if they were conducting a private business.21 As an officer of the bankruptcy court, the debtor in possession was fully subject to taxes and interest incurred during his operation of the business in the Chapter XI arrangement. Nothing in the general language of 28 U.S.C. § 960, however, necessarily subjects the trustee in the superseding bankruptcy proceeding to an obligation to pay additional interest on those prior taxes once a petition in bankruptcy has been filed. United States v. Kalishman, 346 F.2d 514; cf. City of New York v. Saper, 336 U.S. 328, 69 S.Ct. 554, 93 L.Ed. 710; United States v. General Engineering & Mfg. Co., 188 F.2d 80 (C.A.8th Cir.), aff'd, 342 U.S. 912, 72 S.Ct. 364, 96 L.Ed. 686. In the absence of explicit congressional direction, the considerations of equity and administrative convenience established by our decisions under the Bankruptcy Act clearly support this interpretation of the scope of this provision of the Judicial Code.
15
We find no merit in the Government's alternative suggestion that the interest on two of the taxes here in question—those withheld from the wages of employees and those collected from the patrons of the cabaret—constitutes a trust fund over which the United States has an absolute priority under § 7501(a) of the Internal Revenue Code.22 We need not here determine whether, with regard to the principal of those taxes, the general language of § 7501(a) overrides the strong policy of § 64a(1) of the Bankruptcy Act, which establishes a sharply defined priority that places all expenses of administration on a parity, including claims for taxes.23 Cf. Guarantee Title and Trust Co. v. Title Guaranty & Surety Co., 224 U.S. 152, 32 S.Ct. 457, 56 L.Ed. 706; Davis v. Pringle, 268 U.S. 315, 45 S.Ct. 549, 69 L.Ed. 974; Missouri v. Ross, 299 U.S. 72, 57 S.Ct. 60, 81 L.Ed. 46. The second sentence of § 7501(a) specifically provides that interest on such a trust fund is collectible in the same manner as the taxes from which the fund arose. Since we have already determined that no interest on any of the taxes here in question accrues beyond the period of the arrangement proceeding, no interest could accumulate on a trust fund composed of the withholding and cabaret taxes.24
16
We therefore reverse the judgment of the Court of Appeals with regard to the liability of the trustee for the interest on the taxes.
II.
17
The validity of the claim by the United States against the trustee for penalties for failure to file the returns for the taxes in question presents a completely different issue. The result here is governed squarely by the rationale of our decision in Boteler v. Ingels, 308 U.S. 57, 60 S.Ct. 29, 84 L.Ed. 78 in which we sustained a penalty against a trustee in bankruptcy who failed to pay state automobile license taxes incurred while he was operating the business of the bankrupt estate for the purpose of liquidation. We held in Boteler that Congress, under the predecessor of 28 U.S.C. § 960,25 had 'with vigor and clarity declared that a trustee and other court appointees who operate businesses must do so subject to State taxes 'the same as if such business(es) were conducted by an individual or corporation." 308 U.S., at 61, 60 S.Ct. at 32. As we stated in Boteler, if the trustee were exempt from the penalty, a 'State would thus be accorded the theoretical privilege of taxing businesses operated by trustees in bankruptcy on an equal footing with all other businesses, but would be denied the traditional and almost universal method of enforcing prompt payment.' Id., at 61,26 60 S.Ct. at 32.
18
The same considerations are equally applicable to the present case. It is conceded that the trustee, in his status as representative of the bankrupt estate and successor in interest to the debtor in possession, is liable for the principal of the taxes incurred by the debtor in possession, to the extent of the priority enjoyed by the taxes under § 64a(1) of the Bankruptcy Act.27 Once that liability is established, there can be no question that, under § 6011(a) of the Internal Revenue Code, the trustee was under an obligation to file returns for these taxes, even though the taxes themselves were incurred by the debtor in possession during the pendency of the arrangement proceeding.28 It therefore follows under Boteler that, in the circumstances of the present case, where a Chapter XI arrangement has been superseded by a liquidating bankruptcy under the Bankruptcy Act, the United States is entitled to exact the penalties here in question as a legitimate means to enforce the prompt filing of the tax returns. Although the rule in Boteler may be open to some question as applied to the facts of that case, no such difficulty is presented here. In Boteler, the trustee was penalized for his failure actually to pay the license fees within the time period prescribed by the State, even though it could not have been clear at that date that the assets of the bankrupt estate would be sufficient to pay all of the expenses of administration that were entitled to share equally with the taxes under the first priority of § 64a(1) of the Bankruptcy Act in any distribution of assets from the estate. In the present case, on the other hand, the penalties were imposed solely because of the trustee's failure to file timely returns for the taxes incurred during the Chapter XI arrangement period.29
19
No legitimate interest would be served by permitting the trustee to escape the unburdensome responsibility of merely filing the returns and thereby notifying the United States of the taxes that are due. We therefore affirm the judgment of the Court of Appeals with regard to the liability of the trustee for the penalties in question.30
20
For the reasons stated, the judgment of the Court of Appeals for the Fifth Circuit is affirmed in part and reversed in part, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.
21
It is so ordered.
22
Affirmed in part and reversed in part, and case remanded.
23
Mr. Justice HARLAN, concurring in part and dissenting in part.
24
Recognizing the case to be difficult, I would affirm the Court of Appeals' decision to allow both the interest and the penalty as administration expenses. On both points, I think there are fair policy arguments which can be mustered to support either result. On balance, it seems to me that the entire period starting with the Chapter XI operation and carrying through the bankruptcy proceeding should be regarded as a continuum of court administration. See especially § 378(2) of the Bankruptcy Act, 11 U.S.C. § 778(2) (1946 ed.). From this I think it follows that interest should not be stopped when bankruptcy succeeds the Chapter XI period, and that the court-appointed trustee does fall heir to the responsibilities of the court-supervised debtor in possession to file returns.
25
Mr. Justice WHITE, with whom Mr. Justice DOUGLAS and Mr. Justice FORTAS join, concurring in part and dissenting in part.
26
I agree with all but Part II of the Court's opinion and dissent as to that part.
27
The issue is whether a penalty for the trustee's failure to file withholding, social security and cabaret tax returns is payable out of the assets of the estate. The Court holds that it is, even though the acts giving rise to tax liability occurred during the operation of the business by the debtor in possession prior to the trustee's assumption of office. Although the Court concedes that the trustee is not obligated to pay the tax except at the time and within the limits provided by the Bankruptcy Act, he must nevertheless undertake the sometimes difficult task of assembling all the information necessary to file the tax returns that the debtor in possession would have had to file had bankruptcy not occurred. For several reasons I do not agree.
28
1. The bankruptcy laws do not favor saddling an estate with penalties. Section 57j states that 'Debts owing to the United States or to any State or any subdivision thereof as a penalty or forfeiture shall not be allowed * * *,' Bankruptcy Act, § 57j, as amended, 11 U.S.C. § 93(j) (1964 ed.), and this Court has held the section applicable to a federal tax claim even where it is secured by a lien. Simonson v. Granquist, 369 U.S. 38, 82 S.Ct. 537, 7 L.Ed.2d 557. That case reaffirmed the 'broad aim of the Act to provide for the conservation of the estates of insolvents to the end that there may be as equitable a distribution of assets as is consistent with the type of claims involved. * * * Enforcement of penalties against the estates of bankrupts, however, would serve not to punish the delinquent taxpayers, but rather their entirely innocent creditors.' Id., at 40—41, 82 S.Ct. at 539. It is true that § 57j deals with penalties claimed against the debtor and here the penalty is claimed to arise from the trustee's alleged default. But the general policy against diluting the claims of creditors by charging penalties against the estate—very similar to the policy against allowing interest during bankruptcy which the Court rightly makes much of in this case—requires at the very least weighty and persuasive reasons for imposing upon the estate and the other creditors a penalty for the trustee's failure to file a return relating to the prebankruptcy operations of the business. If the tax return date in this case had fallen on the day before bankruptcy, § 57j would bar the penalty. I see little sense in a rule which would allow it if the return date is the day after bankruptcy.
29
2. The Court rests the trustee's obligation to file a return solely on § 6011(a) of the Internal Revenue Code—'any person made liable for any tax imposed by this title, or for the collection thereof, shall make a return * * *.' Section 6151, putting the matter the other way, imposes an obligation to pay the tax on those who file a return. The Court says it is conceded the trustee is liable to pay the taxes incurred by the debtor in possession and therefore the trustee must file a return. But the Court obviously does not mean the trustee is 'liable' to pay in the sense that he must pay claims against the estate. For in the typical bankruptcy case where no Chapter XI proceeding has intervened—the failure of an individual proprietorship for example the trustee is not obligated to, indeed is not authorized to, file the individual's return even though federal taxes are entitled to a Class 4 priority. I.T. 3959, 1949—1 Cum.Bull. 90. The salient fact is that the trustee's general obligation to pay claims including tax claims, takes effect only when and if they are allowed and distribution is ordered. Any claimed liability to pay a tax at any earlier time gives way to the priority provisions of § 64a, and mere liability to pay claims is not the type of liability envisaged by § 6011(a). If it were, the bankruptcy trustee in the ordinary proceeding not following an abortive Chapter XI arrangement could not escape the rule announced today.
30
Accordingly, the reliance of the Court is not on the trustee's general liability to pay claims but on the supposed 'crucial fact' that the taxes here in question were incurred during proceedings under the Bankruptcy Act with the trustee being successor in interest to the debtor in possession, who also acted as an officer of the court. But had the debtor in possession continued to operate the business, his liability to file a return and to pay the taxes here in question would have been clear under 28 U.S.C. § 960 (1964 ed.), and he could have been subjected to penalties for any default, Boteler v. Ingels, 308 U.S. 57, 60 S.Ct. 29, 84 L.Ed. 78. With respect to the trustee, however, the Court disclaims any holding that his liability arises under § 960, see ante, 693, n. 28, at 694, and it seems also to disavow any implication that the trustee could be penalized for failure to pay these taxes at the time required by the Code, as distinguished from failure to file the returns, ante, n. 29 and accompanying text. Such disclaimers are entirely appropriate. For the truth of the matter is that the successor liability of the trustee who succeeds a debtor in possession is no different from that of the trustee who succeeds the ordinary bankrupt, except that taxes accruing during the arrangement are distinguished from prearrangement taxes in that they are classified as administrative expenses and thus are escalated from a Class 4 to a Class 1 priority, although relegated to an inferior position within Class 1 and hence payable only if there are sufficient assets to pay prior expenses. In either instance the trustee's duty to pay is regulated by § 64a and is a general obligation to pay claims and administrative expenses not constituting the kind of liability envisaged by § 6011(a). In sum, there is no basis in law for treating the debtor in possession and the trustee as one person, and the Court's error is in merging together two distinct periods of the estate for purposes of assessing responsibility for filing returns when it quite carefully, and correctly, separated them for purposes of determining liability to pay interest.
31
3. There might be some grounds for rejecting the general policy against allowing penalties against bankrupt estates if the filing of the return by the trustee performed some critical function or was at least something more than an empty formality. Section 58e of the Bankruptcy Act, 11 U.S.C. § 94(e) (1964 ed.), expressly provides for notice to the Internal Revenue Service of the first meeting of creditors in all bankruptcy proceedings and for notices to all scheduled creditors at important stages of the proceeding. See also 26 U.S.C. § 6036 (1964 ed.) (notice of qualification of trustee). There is, therefore, little chance that the Government would not have the opportunity, for lack of notice, to file its claim as it is required to do in an ordinary case. In the matter before us now, the tax claims were clearly scheduled, the United States had ample notice and it had no trouble whatsoever in filing the statement of administrative expense to take advantage of the priority accorded administrative items arising in the prior Chapter XI proceeding.
32
4. Nor is it so clear that to impose on the trustee the obligation of filing returns which the debtor in possession would have filed had he not been adjudicated a bankrupt imposes only an insubstantial burden. Trustees are normally strangers to the estate, have not participated in making or filing the schedules of assets and liabilities and, although they may be creditors, at the outset know little or nothing about the affairs of the bankrupt. They normally do not employ accountants, many times do not have attorneys and more often than not do not forthwith undertake the work and effort necessary to file a tax return. Such a filing is a serious undertaking with possible repercussions and it is not something which an officer of the court can afford lightly to discharge. If the United States claims an amount different from that scheduled, the trustee or his attorney may well have to delve into the facts and give serious consideration to the matter. But I would not require a trustee at the very outset of his duties to determine at his peril whether there are tax returns of the debtor to be filed and to undertake to file them. It would, of course, be impossible to do so on short notice; and if the return date is within a few days after the trustee's appointment, the court's rule would have untoward results.* Absent some showing of a special function to be served by the filing of the return, the wooden application of § 6011(a) needlessly proliferates the duties of the ordinary bankruptcy trustee.
33
5. Boteler v. Ingels, 308 U.S. 57, 60 S.Ct. 29, 84 L.Ed. 78, does not rule this case. There the Court found an obligation on the trustee to pay license taxes on vehicles used in his own liquidating operations. Given this obligation arising out of his own activities, his failure to pay justified the imposition of a penalty and its payment from the estate. Section 57j was limited to proscribing penalties arising from the bankrupt's own defaults. That case, however, does not tell us whether the trustee was liable either to pay the tax or to file the return in the circumstances of this case. It does not follow from the trustee's obligation to pay license fees on vehicles used in his own operations that he is likewise obligated to pay a tax and file a return with respect to the debtor's prior business operations. And even if one admits the obligation to file the return, which I do not, the fact that the return relates to prebankruptcy matters, not to the trustee's operations, brings this case much closer to those in which § 57j was clearly intended to apply.
1
Internal Revenue Code of 1954, § 3402, 26 U.S.C. § 3402 (1964 ed.).
2
Internal Revenue Code of 1954, § 3102, 26 U.S.C. § 3102 (1964 ed.). See also Internal Revenue Code of 1954, § 3111, 26 U.S.C. § 3111 (1964 ed.).
3
Internal Revenue Code of 1954, § 4231(6), 26 U.S.C. § 4231(6) (1964 ed.).
4
Internal Revenue Code of 1954, § 3301, 26 U.S.C. § 3301 (1964 ed.).
5
See § 6651(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 6651(a) (1964 ed.), which provides:
'Addition to the tax.
'In case of failure to file any return * * * on the date prescribed therefor (determined with regard to any extension of time for filing), unless it is shown that such failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount required to be shown as tax on such return 5 percent of the amount of such tax if the failure is for not more than 1 month, with an additional 5 percent for each additional month or fraction thereof during which such failure continues, not exceeding 25 percent in the aggregate.'
The maximum penalty of 25% was assessed on the withholding, cabaret, and social security taxes, and a 15% penalty was assessed on the payroll tax. No question is raised in this case concerning the statutory requirement of willfulness.
6
See § 6601(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 6601(a) (1964 ed.), which provides:
'General rule.
'If any amount of tax imposed by this title (whether required to be shown on a return, or to be paid by stamp or by some other method) is not paid on or before the last date prescribed for payment, interest on such amount at the rate of 6 percent per annum shall be paid for the period from such last date to the date paid.'
7
The referee did in fact allow part of the Government's claim for interest, representing the portion that had accrued to the dates the respective taxes were assessed against the bankrupt corporation. The trustee sought no review of this anomalous aspect of the referee's order, and the allowance of this portion of the interest is not an issue in this case. Nor did the trustee challenge the referee's allowance of the principal of the taxes as an expense of administration. See Dayton v. Stanard, 241 U.S. 588, 36 S.Ct. 695, 60 L.Ed. 1190; Michigan v. Michigan Trust Co., 286 U.S. 334, 52 S.Ct. 512, 76 L.Ed. 1136; In re Lambertville Rubber Co., 111 F.2d 45 (C.A.3d Cir.); In re Columbia Ribbon Co., 117 F.2d 999 (C.A.3d Cir.); McColgan v. Maier Brewing Co., 134 F.2d 385 (C.A.9th Cir.); 3 Collier on Bankruptcy 2088 (14th ed. 1964).
8
United States v. Kalishman, 8 Cir., 346 F.2d 514.
9
Cf. Thomas v. Western Car Co., 149 U.S. 95, 116—117, 13 S.Ct. 824, 833, 37 L.Ed. 663. It is clear that the interest-bearing quality of the debt is suspended, rather than extinguished, by the filing of a petition in bankruptcy. In certain circumstances not here relevant, the accrual of interest may continue during the period of bankruptcy administration. Cf. Bruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772; 3 Collier on Bankruptcy 1858 et seq. (14th ed. 1964). See 2 Blackstone, Commentaries *488 (Cooley ed. 1899).
10
The decision of the Court in City of New York v. Saper, 336 U.S. 328, 69 S.Ct. 554, 93 L.Ed. 710 reflected an assimilation of tax debts to the status of other debts in bankruptcy. At the time Sexton v. Dreyfus, 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244, was decided, taxes incurred before bankruptcy enjoyed a highly preferred status in the succeeding bankruptcy liquidation. Thus, § 64a of the Bankruptcy Act of 1898, 30 Stat. 563, granted an absolute priority to claims for taxes and imposed an affirmative duty on the trustee in bankruptcy to seek out and ascertain the amount of taxes owed and to obtain an order from the bankruptcy court for payment. See City of New York v. Saper, 336 U.S. 328, 333, 69 S.Ct. 554, 557, 93 L.Ed. 710. As a concomitant of their absolute priority, tax claims were permitted to accumulate interest even after the date the petition in bankruptcy was filed. See In re Kallak, 147 F. 276 (D.C.D.N.D.); United States v. Childs, 266 U.S. 304, 45 S.Ct. 110, 69 L.Ed. 299. In 1938, however, Congress amended the Bankruptcy Act by reducing tax debts to the status of a fourth priority, 52 Stat. 874, 11 U.S.C. § 104(a) (1964 ed.), and by requiring tax claims to be proved in the bankruptcy proceeding like ordinary debts, 52 Stat. 867, 11 U.S.C. § 93(n) (1964 ed.). Cf. Act of May 27, 1926, c. 406, § 15, 44 Stat. 666; Wurzel, Taxation During Bankruptcy Liquidation, 55 Harv.L.Rev. 1141, 1145—1146. In Saper, the Court held that, in the light of these amendments, tax debts had become sufficiently clothed with the characteristics of other bankruptcy debts to justify the application of the general rule in Sexton to suspend the accrual of interest on such claims on the date the petition in bankruptcy was filed.
11
As Mr. Justice Holmes stated with regard to interest on a secured debt in Sexton v. Dreyfus, 219 U.S. 339, 344—345, 31 S.Ct. 256, 257, 55 L.Ed. 244:
'The rule is not unreasonable when closely considered. It simply fixes the moment when the affairs of the bankrupt are supposed to be wound up. If, as in a well known illustration of Chief Justice Shaw's, Parks v. City of Boston, 15 Pick. 198, 208, the whole matter could be settled in a day by a pie-powder court, the secured creditor would be called upon to sell or have his security valued on the spot, would receive a dividend upon that footing, would suffer no injustice, and could not complain.'
12
See American Iron & Steel Manufacturing Co. v. Seaboard Air Line Railway, 233 U.S. 261, 34 S.Ct. 502, 58 L.Ed. 949, a case of equity receivership, where the Court stated that the general rule barring post-petition interest on pre-petition claims is not based on the fact that the claims 'had lost their interest-bearing quality during that period, but is a necessary and enforced rule of distribution, due to the fact that in case of receiverships the assets are generally insufficient to pay debts in full. If all claims were of equal dignity and all bore the same rate of interest, from the date of the receivership to the date of final distribution, it would be immaterial whether the dividend was calculated on the basis of the principal alone or of principal and interest combined. But some of the debts might carry a high rate and some a low rate, and hence inequality would result in the payment of interest which accrued during the delay incident to collecting and distributing the funds. As this delay was the act of the law, no one should thereby gain an advantage or suffer a loss. For that and like reasons, in case funds are not sufficient to pay claims of equal dignity, the distribution is made only on the basis of the principal of the debt.' 233 U.S., at 266, 34 S.Ct. at 504. See also Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 164, 67 S.Ct. 237, 240, 91 L.Ed. 162: 'Moreover, different creditors whose claims bore diverse interest rates or were paid by the bankruptcy court on different dates would suffer neither gain nor loss caused solely by delay.' This equitable doctrine was itself the product of compromise between the interests of competing creditors; it was at least arguable that the intervention of bankruptcy should have prohibited payment even of pre-petition interest on debts until the principal of the debts was paid. See 3 Collier on Bankruptcy 1855—1856 (14th ed. 1964).
13
Nothing in the general language of § 378(2) of the Bankruptcy Act, 11 U.S.C. § 778(2) (1964 ed.), which provides that a bankruptcy proceeding superseding a Chapter XI proceeding 'shall be conducted, so far as possible, in the same manner and with like effect as if a voluntary petition for adjudication in bankruptcy had been filed and a decree of adjudication had been entered on the day when the petition under this chapter (XI) was filed,' requires us to collapse these important distinctions between an arrangement proceeding and a superseding bankruptcy and to treat the taxes in question here as though they were incurred in the bankruptcy proceeding itself.
14
United States v. General Engineering & Mfg. Co., 188 F.2d 80 (C.A.8th Cir.), aff'd, 342 U.S. 912, 72 S.Ct. 358, 96 L.Ed. 682. Cf. Commonwealth of Massachusetts v. Thompson, 190 F.2d 10 (C.A.1st Cir.), cert. denied, 342 U.S. 918, 72 S.Ct. 364, 96 L.Ed. 686. The same rule has been applied to suspend interest both in corporate reorganization proceedings under Chapter X of the Bankruptcy Act, United States v. Edens, 189 F.2d 876 (C.A.4th Cir.), aff'd, 342 U.S. 912, 72 S.Ct. 357, 96 L.Ed. 682, and in assignments for the benefit of creditors, Matter of Pavone Textile Corp., 302 N.Y. 206, 97 N.E.2d 755, aff'd sub nom. United States v. Bloom, 342 U.S. 912, 72 S.Ct. 357, 96 L.Ed. 682. In accord with these decisions, the United States filed no claim in the present case for interest accruing in the arrangement and liquidating bankruptcy periods on taxes incurred before the Chapter XI petition was filed.
15
Cf. Commonwealth of Massachusetts v. Thompson, 190 F.2d 10, 11 (dissenting opinion of Judge Woodbury). Section 344 of the Bankruptcy Act, 11 U.S.C. § 744 (1964 ed.), specifically contemplates the creation of interest-bearing debts during the arrangement period. See also Weintraub & Levin, Practical Guide to Bankruptcy and Debtor Relief 185—186 (1964).
16
On the basis of statistics in the Brief of the United States submitted in this case, it appears that significant numbers of Chapter XI proceedings terminate in bankruptcy. For example, in the fiscal year ending June 30, 1964, 1,088 Chapter XI proceedings were filed, and a debtor was adjudicated a bankrupt in 604 such proceedings that had been initiated in 1964 or prior years.
17
Section 64a of the Bankruptcy Act, 11 U.S.C. § 104(a), provides:
'Debts which have priority.
'(a) The debts to have priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment, shall be (1) the costs and expenses of administration, including the actual and necessary costs and expenses of preserving the estate subsequent to filing the petition * * *. Where an order is entered in a proceeding under any chapter of this title directing that bankruptcy be proceeded with, the costs and expenses of administration incurred in the ensuing bankruptcy proceeding shall have priority in advance of payment of the unpaid costs and expenses of administration, including the allowance provided for in such chapter, incurred in the superseded proceeding * * * (4) taxes legally due and owing by the bankrupt to the United States or any State or any subdivision thereof * * *.'
18
See note 17, supra. The final sentence of § 64a(1) was added by Congress in 1952, 66 Stat. 426, as amended, 76 Stat. 571.
19
The general principle restricting post-bankruptcy interest to the relevant time period in which the underlying obligation was incurred is also consistent with § 63a(1) of the Bankruptcy Act, 11 U.S.C. § 103(a)(1) (1964 ed.) (interest on judgments and written instruments allowed only to date of filing of petition in bankruptcy; rebate of interest required if debt was not then payable and did not bear interest), and § 63a(5), 11 U.S.C. § 103(a)(5) (1964 ed.) (interest allowed only to date of petition on debts reduced to judgment after bankruptcy). Compare State of Missouri v. Earhart, 111 F.2d 992, 996—997 (C.A.8th Cir.).
20
See Ex parte Bennet, 2 Atk. 526, 527; City of New York v. Saper, 336 U.S. 328, 334, 69 S.Ct. 554, 557, 93 L.Ed. 710; Bruning v. United States, 376 U.S. 358, 362, 84 S.Ct. 906, 908, 11 L.Ed.2d 772; 3 Collier on Bankruptcy 1857 (14th ed. 1964).
21
'Any officers and agents conducting any business under authority of a United States court shall be subject to all Federal, State and local taxes applicable to such business to the same extent as if it were conducted by an individual or corporation.' 28 U.S.C. § 960 (1964 ed.).
22
Section 7501(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 7501(a) (1964 ed.), provides:
'General rule.
'Whenever any person is required to collect or withhold any internal revenue tax from any other person and to pay over such tax to the United States, the amount of tax so collected or withheld shall be held to be a special fund in trust for the United States. The amount of such fund shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose.'
Cf. City of New York v. Rassner, 127 F.2d 703 (C.A.2d Cir.); United States v. Sampsell, 193 F.2d 154 (C.A.9th Cir.); Hercules Service Parts Corp. v. United States, 202 F.2d 938 (C.A.6th Cir.); In re Airline-Arista Printing Corp., 267 F.2d 333 (C.A.2d Cir.); 3 Collier on Bankruptcy 2066, n. 27 (14th ed. 1964).
23
The record indicates that the assets of the bankrupt estate are sufficient to pay all expenses entitled to priority under § 64a(1) of the Bankruptcy Act, and the United States has not sought to claim the principal of the taxes in question as a trust fund. See note 7, supra.
24
We thus have no occasion to determine whether in any event interest, which would necessarily be derived from the assets of the bankrupt estate, could accede to the principal of such a trust fund.
25
See note 21, supra.
26
Cf. In re Chicago & N.W.R. Co., 119 F.2d 971 (C.A.7th Cir.). See also § 6659(a)(1) of the Internal Revenue Code, 26 U.S.C. § 6659(a)(1) (1964 ed.), which provides that penalties on taxes 'shall be assessed, collected, and paid in the same manner as taxes.'
27
The liability of the trustee for the principal of these taxes results from his succession in interest to the title of the debtor in possession, who, as an officer of the bankruptcy court, was clearly subject to such taxes under the provisions of 28 U.S.C. § 960, supra, note 21. As the successor in interest, the trustee is bound by all authorized acts of the debtor in possession. In re Will-low Cafeterias, 111 F.2d 429 (C.A.2d Cir.); 8 Collier on Bankruptcy 965 (14th ed. 1964). Cf. Shapiro, Tax Effects of Bankruptcy, 1959 So.Calif.Tax Inst. 587, 588—591. In general, the trustee himself is under a duty to seek out and pay taxes accruing against the bankrupt estate during the bankruptcy itself. See 2 Collier on Bankruptcy 1752 (14th ed. 1964). Cf. Internal Revenue Code of 1954, § 6012(b)(3) (trustee required to make returns of income for bankrupt corporation whether or not the business of the corporation is being operated). Unlike the situation in Part I, supra, the present question involves no major inequities between creditors of the same class. The dominant aspect here, therefore, is the continuity of interest between the debtor in possession and the trustee as officers of the bankruptcy court. The crucial fact in the present case, so far as the obligation to file the tax returns is concerned, is that the taxes were in fact incurred during proceedings under the Bankruptcy Act. Thus, nothing said in this opinion may be taken as imposing any obligation upon a trustee in bankruptcy to file returns for taxes incurred before the initiation of proceedings under the Act. Cf. I.T. 3959, 1949—1 Cum.Bull. 90 (trustee not authorized to file federal income tax returns on behalf of a bankrupt individual).
28
Section 6011(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 6011(a) (1964 ed.), provides:
'General rule.
'When required by regulations prescribed by the Secretary or his delegate any person made liable for any tax imposed by this title, or for the collection thereof, shall make a return or statement accord-
ing to the forms and regulations prescribed by the Secretary or his delegate. * * *'
Since it is clear that under § 6011(a) the trustee himself was required to file returns for the taxes in issue, we need not determine whether penalties incurred by the debtor in possession may be assessed against the trustee. See §§ 57(j) and 381(3) of the Bankruptcy Act, 11 U.S.C. §§ 93(j), 781(3) (1964 ed.); Boteler v. Ingels, 308 U.S. 57, 59—60, 60 S.Ct. 29, 84 L.Ed. 78. Nor is there any issue raised in this case concerning the susceptibility to tax under 28 U.S.C. § 960 of a trustee whose activities do not amount to the conduct of business in any meaningful sense. See United States v. Sampsell, 266 F.2d 631 (C.A.9th Cir.); In re Loehr, 98 F.Supp. 402 (D.C.E.D.Wis.); In the Matter of F.P. Newport Corp., Ltd., 144 F.Supp. 507 (D.C.S.D.Cal.).
Nothing in § 6151 of the Internal Revenue Code, 26 U.S.C. § 6151 (1964 ed.), which obliges the person required to file a return to pay the tax in question, imposes any obligation on the trustee other than in his capacity as the representative of the bankrupt estate. Nor is § 3467 of the Revised Statutes, 31 U.S.C. § 192 (1964 ed.), applicable here. It is well established that this provision, which imposes a personal liability on a trustee who distributes the property of a bankrupt estate to other creditors before satisfying the debts due the United States, does not alter the priorities established by § 64a of the Bankruptcy Act. Guarantee Title and Trust Co. v. Title Guaranty & Surety Co., 224 U.S. 152, 32 S.Ct. 457, 56 L.Ed. 706; United States v. Kaplan, 74 F.2d 664 (C.A.2d Cir.). Cf. King v. United States, 379 U.S. 329, 85 S.Ct. 427, 13 L.Ed.2d 315. Compare Boteler v. Ingels, 308 U.S. 57, 60, n. 6, 60 S.Ct. 29, 84 L.Ed. 78; In re Lambertville Rubber Co., 111 F.2d 45, 49—50 (C.A.3d Cir.).
29
It is true that under the general language of § 6151 of the Code, the date on which the return must be filed is also the date on which the tax is required to be paid. It is only the filing requirement, however, that is accompanied by the sanction of a statutory penalty. Internal Revenue Code of 1954, § 6651(a), supra, note 5. The sole concomitant of the failure to pay the taxes is the accumulation of interest on the unpaid amount. However, as we have held in Part I, supra, no liability for such interest attaches to the trustee in the circumstances of the present case. See also Rev.Rul. 56—158, 1956—1 Cum.Bull. 596 (penalty assessed for late filing of return in assignment for the benefit of creditors proceeding).
30
The penalties involved in this case were incurred by the trustee after the petition for bankruptcy was filed. Therefore, in light of the considerations discussed in Part I, supra, the trustee is liable for interest on the penalties incurred because of his failure to file the returns. Since we have determined that the trustee is liable in any event for penalties on all of the taxes here in question, we have no occasion to pass upon the Government's alternative claim that the penalties on the withholding and cabaret taxes may be recovered as part of a trust fund under § 7501(a) of the Internal Revenue Code, supra, note 22.
*
Extensions of time for withholding tax returns are limited to a maximum of 15 days. Mim. 6157, 1947—2 Cum.Bull. 64.
| 1112
|
384 U.S. 672
86 S.Ct. 1728
16 L.Ed.2d 848
Martha CARDONA, Appellant,v.James M. POWER et al.
No. 673.
Argued April 18, 1966.
Decided June 13, 1966.
Paul O'Dwyer, New York City, for appellant.
Samuel A. Hirshowitz, New York City, for appellees.
Mr. Justice BRENNAN, delivered the opinion of the Court.
1
This case was argued with Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1731, 16 L.Ed.2d 828, also decided today. We there sustained the constitutionality of § 4(e) of the Voting Rights Act of 1965, and held that, by force of the Supremacy Clause and as provided in § 4(e), the State of New York's English literacy requirement cannot be enforced against persons who had successfully completed a sixth grade education in a public school in, or a private school accredited by, the Commonwealth of Puerto Rico in which the language of instruction was other than English. In this case, which was adjudicated by the New York courts before the enactment of § 4(e), appellant unsuccessfully sought a judicial determination that the New York English literacy requirement, as applied to deny her the right to vote in all elections, violated the Federal Constitution.
2
Appellant was born and educated in the Commonwealth of Puerto Rico and has lived in New York City since about 1948. On July 23, 1963, she attempted to register to vote, presenting evidence of United States citizenship, her age and residence; and she represented that although she was able to read and write Spanish, she could not satisfy New York's English literacy requirement. The New York City Board of Elections refused to register her as a voter solely on the ground that she was not literate in English. Appellant then brought this proceeding in state court against the Board of Elections and its members. She alleged that the New York English literacy requirement as applied was invalid under the Federal Constitution and sought an order directing the Board to register her as a duly qualified voter, or, in the alternative, directing the Board to administer a literacy test in the Spanish language, and, if she passed the test, to register her as a duly qualified voter. The trial court denied the relief prayed for and the New York Court of Appeals, three judges dissenting, affirmed. 16 N.Y.2d 639, 261 N.Y.S.2d 78, 209 N.E.2d 119, remittitur amended, 16 N.Y.2d 708, 827, 261 N.Y.S.2d 900, 209 N.E.2d 556, 210 N.E.2d 458. We noted probable jurisdiction. 382 U.S. 1008, 86 S.Ct. 614, 15 L.Ed.2d 524.
3
Although appellant's complaint alleges that she attended a school in Puerto Rico, it is not alleged therein nor have we been clearly informed in any other way whether, as required by § 4(e), she successfully completed the sixth grade of a public school in, or a private school accredited by, the Commonwealth.* If she had completed the sixth grade in such a school, her failure to satisfy the New York English literacy requirement would no longer be a bar to her registration in light of our decision today in Katzenbach v. Morgan. This case might therefore be moot; appellant would not need any relief if § 4(e) in terms accomplished the result she sought. Cf., e.g., Dinsmore v. Southern Express Co., 183 U.S. 115, 119—120, 22 S.Ct. 45, 46, 46 L.Ed. 111. Moreover, even if appellant were not specifically covered by § 4(e), the New York courts should in the first instance determine whether, in light of this federal enactment, those applications of the New York English literacy requirement not in terms prohibited by § 4(e) have continuing validity. We therefore vacate the judgment, without costs to either party in this Court, and remand the cause to the Court of Appeals of New York for such further proceedings as it may deem appropriate.
4
It is so ordered.
5
Judgment vacated and cause remanded.
6
Mr. Justice DOUGLAS, with whom Mr. Justice FORTAS concurs, dissenting.
7
Appellant is an American of Spanish ancestry, literate in the Spanish language but illiterate in English and hence barred from voting by New York's statute.
8
I doubt that literacy is a wise prerequisite for exercise of the franchise. Literacy and intelligence are not synonymous. The experience of nations1 like India, where illiterate persons have returned to office responsible governments over and again, emphasizes that the ability to read and write is not necessary for an intelligent use of the ballot. Yet our problem as judges is not to determine what is wise or unwise. The issues of constitutional power are more confined. A State has broad powers over elections; and I cannot say that it is an unconstitutional exercise of that power to condition the use of the ballot on the ability to read and write. That is the only teaching of Lassiter v. Northampton Election Board, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072. But we are a multi-racial and multi-linguistic nation; and there are groups in this country as versatile in Spanish, French, Japanese, and Chinese, for example, as others are in English. Many of them constitute communities in which there are widespread organs of public communication in one of those tongues—such as newspapers, magazines, radio, and television which regularly report and comment on matters of political interest and public concern. Such is the case in New York City where Spanish-language newspapers and periodicals flourish and where there are Spanish-language radio broadcasts which appellant reads and listens to. Before taking up residence in New York City she lived in Puerto Rico where she regularly voted in gubernatorial, legislative, and municipal elections. And so our equal protection question is whether intelligent use of the ballot should not be as much presumed where one is versatile in the Spanish language as it is where English is the medium.
9
New York's law permits an English-speaking voter to qualify either by passing an English literacy test2 or by presenting a certificate showing completion of the sixth grade of an approved elementary school in which English is the language of instruction.3 But a Spanish-speaking person, such as appellant, is offered no literacy test in Spanish. Her only recourse is to a certificate showing completion of the sixth grade of a public school in, or a private school accredited by, the Commonwealth of Puerto Rico;4 and prior to § 4(e) of the Voting Rights Act that school had to be one in which English was the language of instruction. The heavier burden which New York has placed on the Spanish-speaking American cannot in my view be sustained, under the Equal Protection Clause of the Fourteenth Amendment.
10
We deal here with the right to vote which over and again we have called a 'fundamental matter in a free and democratic society.' Reynolds v. Sims, 377 U.S. 533, 561—562, 84 S.Ct. 1362, 12 L.Ed.2d 506; Harper v. Virginia State Board of Elections, 383 U.S. 663, 667, 86 S.Ct. 1079, 1083, 16 L.Ed.2d 169. Where classifications might 'invade or restrain' fundamental rights and liberties, they must be 'closely scrutinized and carefully confined.' Harper v. Virginia State Board of Elections, supra, at 670, 86 S.Ct. at 1083. Our philosophy that removal of unwise laws must be left to the ballot, not to the courts, requires that recourse to the ballot not be restricted as New York has attempted. It little profits the Spanish-speaking people of New York that this literacy test can be changed by legislation either in Albany or in Washington, D.C., if they are barred from participating in the process of selecting those legislatures. This is a fundamental reason why a far sterner test is required when a law—whether state or federal—abridges a fundamental right.5
11
New York, as I have said, registers those who have completed six years of school in a classroom where English is the medium of instruction and those who pass an English literacy test. In my view, there is no rational basis—considering the importance of the right at stake—for denying those with equivalent qualifications except that the language is Spanish. Thus appellant has, quite apart from any federal legislation, a constitutional right to vote in New York on a parity with an English-speaking citizen—either by passing a Spanish literacy test or through a certificate showing completion of the sixth grade in a Puerto Rican school where Spanish was the classroom language. In no other way can she be placed on a constitutional parity with English-speaking electors.
*
Presumably the predominant classroom language of the school she attended was other than English, and thus that element of § 4(e) is satisfied. If the predominant classroom language had been English, and if she had successfully completed the sixth grade, then she would be entitled to vote under § 168 of the New York Election Law, McKinney's Consol.Laws, c. 17. See n. 2, in Katzenbach v. Morgan, ante.
1
Puerto Rico in the last quarter century has also provided a demonstration of the point, although it is fast overcoming its illiteracy problem. In 1940 31.5% of its people were illiterate. The rate was reduced to 13.8% in 1965. Selected Indices of Social and Economic Progress: Fiscal Years 1939—40, 1947—48 to 1964—65 (Puerto Rico Bureau of Economic and Social Analysis) 7—8. During this period the people have elected highly progressive and able officials.
2
Section 168(1), McKinney's Consolidated Laws of New York Ann., Election Law.
3
Id., § 168(2).
4
Ibid.
5
See Thornhill v. State of Alabama, 310 U.S. 88, 95—96, 60 S.Ct. 736, 740, 84 L.Ed. 1093; Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 89 L.Ed. 430; Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469.
| 12
|
384 U.S. 546
86 S.Ct. 1665
16 L.Ed.2d 765
UNITED STATES, Appellant,v.PABST BREWING COMPANY et al.
No. 404.
Argued April 27, 1966.
Decided June 13, 1966.
Edwin M. Zimmerman, Atty., U.S. Dept. of Justice, Washington, D.C., for appellant.
John T. Chadwell, Chicago, Ill., for appellees.
Mr. Justice BLACK delivered the opinion of the Court.
1
In 1958 Pabst Brewing Company, the Nation's tenth largest brewer, acquired the Blatz Brewing Company, the eighteenth largest. In 1959 the Government brought this action charging that the acquisition violated § 7 of the Clayton Act as amended by the Celler-Kefauver Anti-Merger amendment.1 That section makes it unlawful for one corporation engaged in commerce to acquire the stock or assets of another '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.' (Emphasis supplied.) The Government's complaint charged that 'The effect of this acquisition may be substantially to lessen competition or to tend to create a monopoly in the production and sale of beer in the United States and in various sections thereof, including the State of Wisconsin and the three state area encompassing Wisconsin, Illinois and Michigan * * *.'2 At the close of the Government's case, the District Court dismissed the case under Rule 41(b) of the Fed.Rules Civ.Proc., holding that the Government's proof had not shown that either Wisconsin or the three-state area of Wisconsin or the and Illinois was a 'relevant geographic market within which the probable effect of the acquisition of Blatz by Pabst should be tested.' The District Court also ruled that the Government had not shown that 'the effect of the acquisition * * * may be substantially to lessen competition or to tend to create a monopoly in the beer industry in the continental United States, the only relevant geographic market.' 233 F.Supp. 475, 481, 488.
I.
2
We first take up the court's dismissal based on its conclusion that the Government failed to prove either Wisconsin or the three-state area constituted 'a relevant section of the country within the meaning of Section 7.' Apparently the District Court thought that in order to show a violation of § 7 it was essential for the Government to show a 'relevant geographic market' in the same way the corpus delicti must be proved to establish a crime. But when the Government brings an action under § 7 it must, according to the language of the statute, prove no more than that there has been a merger between two corporations engaged in commerce and that the effect of the merger may be substantially to lessen competition or tend to create a monopoly in any line of commerce 'in any section of the country.' (Emphasis supplied.) The language of this section requires merely that the Government prove the merger may have a substantial anticompetitive effect somewhere in the United States 'in any section' of the United States. This phrase does not call for the delineation of a 'section of the country' by metes and bounds as a surveyor would lay off a plot of ground.3 The Government may introduce evidence which shows that as a result of a merger competition may be substantially lessened throughout the country, or on the other hand it may prove that competition may be substantially lessened only in one or more sections of the country. In either event a violation of § 7 would be proved. Certainly the failure of the Government to prove by an army of expert witnesses what constitutes a relevant 'economic' or 'geographic' market is not an adequate ground on which to dismiss a § 7 case. Compare United States v. Continental Can Co., 378 U.S. 441, 458, 84 S.Ct. 1738, 12 L.Ed.2d 953. Congress did not seem to be troubled about the exact spot where competition might be lessened; it simply intended to outlaw mergers which threatened competition in any or all parts of the country. Proof of the section of the country where the anticompetitive effect exists is entirely subsidiary to the crucial question in this and every § 7 case which is whether a merger may substantially lessen competition anywhere in the United States.
II.
3
The Government's evidence, consisting of documents, statistics, official records, depositions, and affidavits by witnesses, related principally to the competitive position of Pabst and Blatz in the beer industry throughout the Nation, in the three-state area of Wisconsin, Illinois, and Michigan, and in the State of Wisconsin. The record in this case, including admissions by Pabst in its formal answer to the Government's complaint, the evidence introduced by the Government, the findings of fact and opinion of the District Judge, shows among others the following facts. In 1958, the year of the merger, Pabst was the tenth largest brewer in the Nation and Blatz ranked eighteenth. The merger made Pabst the Nation's fifth largest brewer with 4.49% of the industry's total sales. By 1961, three years after the merger, Pabst had increased its share of the beer market to 5.83% and had become the third largest brewer in the country. In the State of Wisconsin, before the merger, Blatz was the leading seller of beer and Pabst ranked fourth. The merger made Pabst the largest seller in the State with 23.95% of all the sales made there. By 1961 Pabst's share of the market had increased to 27.41%. This merger took place in an industry marked by a steady trend toward economic concentration. According to the District Court the number of breweries operating in the United States declined from 714 in 1934 to 229 in 1961, and the total number of different competitors selling beer has fallen from 206 in 1957 to 162 in 1961. In Wisconsin the number of companies selling beer has declined from 77 in 1955 to 54 in 1961. At the same time the number of competitors in the industry were becoming fewer and fewer, the leading brewers were increasing their shares of sales. Between 1957 and 1961 the Nation's 10 leading brewers increased their combined shares of sales from 45.06% to 52.60%. In Wisconsin the four leading sellers accounted for 47.74% of the State's sales in 1957 and by 1961 this share had increased to 58.62%. In the three-state area the evidence showed that in 1957 Blatz was the sixth largest seller with 5.84% of the total sales there and Pabst ranked seventh with 5.48%. As was true in the beer industry throughout the Nation, there was a trend toward concentration in the three- state area. From 1957 to 1961 the number of major brewers selling there dropped from 104 to 86 and during the same period the eight leading sellers increased their combined shares of beer sales from 58.93% to 67.65%.
4
These facts show a very marked thirty-year decline in the number of brewers and a sharp rise in recent years in the percentage share of the market controlled by the leading brewers. If not stopped, this decline in the number of separate competitors and this rise in the share of the market controlled by the larger beer manufacturers are bound to lead to greater and greater concentration of the beer industry into fewer and fewer hands. The merger of Pabst and Blatz brought together two very large brewers competing against each other in 40 States. In 1957 these two companies had combined sales which accounted for 23.95% of the beer sales in Wisconsin, 11.32% of the sales in the three-state area of Wisconsin, Illinois, and Michigan, and 4.49% of the sales throughout the country. In accord with our prior cases,4 we hold that the evidence as to the probable effect of the merger on competition in Wisconsin, in the three-state area, and in the entire country was sufficient to show a violation of § 7 in each and all of these three areas.
5
We have not overlooked Pabst's contention that we should not consider the steady trend toward concentration in the beer industry because the Government has not shown that the trend is due to mergers. There is no duty on the Government to make such proof. It would seem fantastic to assume that part of the concentration in the beer industry has not been due to mergers but even if the Government made no such proof, it would not aid Pabst. Congress, in passing § 7 and in amending it with the Celler-Kefauver Anti-Merger amendment, was concerned with arresting concentration in the American economy, whatever its cause, in its incipiency. To put a halt to what it considered to be a 'rising tide' of concentration in American business, Congress, with full power to do so, decided 'to clamp down with vigor on mergers.' United States v. Von's Grocery Co., 384 U.S., at 276, 86 S.Ct., at 1482. It passed and amended § 7 on the premise that mergers do tend to accelerate concentration in an industry. Many believe that this assumption of Congress is wrong, and that the disappearance of small businesses with a correlative concentration of business in the hands of a few is bound to occur whether mergers are prohibited or not. But it is not for the courts to review the policy decision of Congress that mergers which may substantially lessen competition are forbidden, which in effect the courts would be doing should they now require proof of the congressional premise that mergers are a major cause of concentration. We hold that a trend toward concentration in an industry, whatever its causes, is a highly relevant factor in deciding how substantial the anti-competitive effect of a merger may be.
6
Reversed and remanded.
7
Mr. Justice DOUGLAS, concurring.
8
While I join the Court's opinion, I add only a word in support of the Court's description of the anatomy of the 'relevant geographic market' for purposes of the Clayton Act. The alternative leads to a form of concentration whose ultimate reductio ad absurdum is described in the Appendix to this opinion.
9
APPENDIX TO CONCURRING OPINION OF MR. JUSTICE DOUGLAS.
10
Every time you pick up the newspaper you read about one company merging with another company. Of course, we have laws to protect competition in the United States, but one can't help thinking that, if the trend continues the whole country will soon be merged into one large company.
11
It is 1978 and by this time every company west of the Mississippi will have merged into one giant corporation known as Samson Securities. Every company east of the Mississippi will have merged under an umbrella corporation known as the Delilah Company.
12
It is inevitable that one day the chairman of the board of Samson and the president of Delilah would meet and discuss merging their two companies.
13
'If we could get together,' the president of Delilah said, 'we would be able to finance your projects and you would be able to finance ours.'
14
'Exactly what I was thinking,' the chairman of Samson said.
15
'That's a great idea and it certainly makes everyone's life less complicated.'
16
The men shook on it and then they sought out approval from the Anti-Trust Division of the Justice Department.
17
At first the head of the Anti-Trust Division indicated that he might have reservations about allowing the only two companies left in the United States to merge.
18
'Our department,' he said, 'will take a close look at this proposed merger. It is our job to further competition in private business and industry, and if we allow Samson and Delilah to merge we may be doing the consumer a disservice.'
19
The chairman of Samson protested vigorously that merging with Delilah would not stifle competition, but would help it. 'The public will be the true beneficiary of this merger,' he said. 'The larger we are, the more services we can perform, and the lower prices we can charge.'
20
The president of Delilah backed him up. 'In the Communist system the people don't have a choice. They must buy from the state. In our capitalistic society the people can buy from either the Samson Company or the Delilah Company.'
21
'But if you merge,' someone pointed out, 'there will be only one company left in the United States.'
22
'Exactly,' said the president of Delilah. 'Trank God for the free enterprise system.'
23
The Anti-Trust Division of the Justice Department studied the merger for months. Finally the Attorney General made this ruling. 'While we find some drawbacks to only one company being left in the United States, we feel the advantages to the public far outweign the disadvantages.
24
'Therefore, we're making an exception in this case and allowing Samson and Delilah to merge.
25
'I would like to announce that the Samson and Delilah Company is now negotiating at the White House with the President to buy the United States. The Justice Department will naturally study this merger to see if it violates any of our strong anti-trust laws.'
26
Art Buchwald, Washington Post, June 2, 1966, p. A21.
27
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, concurring in the result.
28
I concur in the judgment of reversal on the limited ground that the Government's evidence is sufficient to establish prima facie that Wisconsin and the tristate area comprising Wisconsin, Michigan and Illinois are both proper sections of the country in which to measure the probable effects of the acquisition of Blatz by Pabst under § 7 of the Clayton Act, 38 Stat. 731, as amended, 64 Stat. 1125, 15 U.S.C. § 18 (1964 ed.). However, I am wholly unable to subscribe to the Court's opinion which appears to emasculate the statutory phrase 'in any section of the country.'
I.
29
The Court is quite right in stating that the primary question in a § 7 case is whether the effect of the challenged acquisition 'may substantially lessen competition.' Ante, p. 550. But any resolution of this question necessarily involves a study of statistics and other evidence bearing upon market shares, market trends, number of competitors and the like. Obviously such figures will vary depending upon what geographic area is chosen as relevant, and the possibilities for 'gerrymandering' are limitless. The Senate Report which discusses the 'section of the country' requirement, S.Rep. No. 1775, 81st Cong., 2d Sess., 5—6 (1950), notes that it 'will vary with the nature of the product' so as to determine an 'economically significant' area in which to measure a change in the level of competition. Id., at 5. 'In determining the area of effective competition for a given product,' the report continues, 'it will be necessary to decide what comprises an appreciable segment of the market. An appreciable segment of the market may not only be a segment which covers an appreciable segment of the trade, but it may also be a segment which is largely segregated from, independent of, or not affected by the trade in that product in other parts of the country.' Id., at 6, U.S.Code Congressional Service 1950, pp. 4293, 4297, 4298.
30
The cases under § 7 have established a flexible, but workable, approach to the question of geographic market. In Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, the Court recognized that a test for an appropriate geographic market had been prescribed by Congress, 370 U.S., at 336, 82 S.Ct., at 1529, and that it must "correspond to the commercial realities' of the industry and be economically significant.' 370 U.S., at 336—337, 82 S.Ct., at 1530.1 The determination of relevant geographic market received more detailed study in United States v. Philadelphia Nat. Bank, 374 U.S. 321, 83 S.Ct. 1715. The Court there saw the 'proper question' as framed to ascertain 'not where the parties to the merger do business or even where they compete, but where, within the area of competitive overlap, the effect of the merger on competition will be direct and immediate.' 374 U.S., at 357, 83 S.Ct., at 1738.
31
The appropriate geographic area in which to examine the effects of an acquisition is an area in which the parties to the merger or acquisition compete, and around which there exist economic barriers that significantly impede the entry of new competitors. Of course, as Philadelphia National Bank and commentators2 have noted, no such designation is perfect, for all geographic markets are to some extent interconnected, and over time any barrier may be overcome or may disappear owing to structural or technological changes in the industry, e.g., refrigeration which widened markets for 'perishable' foods. Thus, in Philadelphia National Bank, it was recognized that large borrowers and depositors operate in something like a national banking market, and that very small borrowers and depositors are likely to confine themselves to banks in their immediate neighborhood. Nevertheless, the Court was able to find a four-county area in metropolitan Philadelphia to be a relevant 'section of the country' in which to measure that merger. Some of the criteria cited there as supporting such a determination were the convenience of location for all but the largest bank customers as an important factor limiting competition by outsiders, the concentration of the defendant's business in that region, and administrative designations of that region as an 'area of effective competition.' 374 U.S., at 359—361, 83 S.Ct., at 1740. See also Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 327, 330—333, 81 S.Ct. 623, 627, 5 L.Ed.2d 580.
II.
32
In the case before us the Government has in my opinion made a prima facie showing that the State of Wisconsin and the three-state area3 are both relevant sections of the country for measuring the effects of this merger. That is, on the basis of the evidence thus far submitted, I believe the Government has made a sufficient showing that significant barriers exist to prevent outside brewers from entering the Wisconsin market as effective competitors to those brewers already marketing beer there.
33
As a preliminary matter, it is clear that Pabst and Blatz both carry on substantial business and are direct competitors in Wisconsin. About 13% of Pabst's sales in 1957, the year before the merger, were made in Wisconsin, where Pabst maintained one of its four breweries. Blatz maintained its only brewery in Wisconsin, where it sold 31% of its beer in 1957. It is thus clear that the two beers were important competitors in that area; indeed Blatz was the loading seller in Wisconsin and Pabst the fourth largest. There statistics become meaningful for antitrust purposes in the context of the further evidence showing substantial barriers to brewers who were not then selling beer in Wisconsin.
34
The sales statistics submitted by the Government show not only a high percentage of the Wisconsin market dominated by Pabst and Blatz, but also a pattern of local concentration in the sale of beer there and throughout the country. Wisconsin, with about the highest percapita beer consumption level in the country, was dominated by substantially the same group of brewers maintaining substantially the same market shares year after year without serious challenge from other brewers operating in other sectors of the country.4 This picture of local concentration in various regional markets is supported by evidence that brewers are able to sell the same beer in different States for different prices (exclusive of transportation cost). Although there is no direct evidence in the record that beer is subject to high transportation costs, which would of course be highly persuasive evidence supporting the local-market theory, it is relevant that about 90% of beer sold in Wisconsin comes from breweries located in that State or nearby in Minnesota. Indeed, in 1959 the Blatz brewery in Wisconsin was closed down, and Blatz beer was brewed in the four Pabst breweries, because 'decentralization' was considered more efficient. To the extent that it is true that local breweries have an advantage in terms of efficiency and thus cost, a significant barrier exists to brewers who wish to sell in Wisconsin but brew their beer in other areas of the country. Thus, in terms of the structure of beer marketing as reflected in sales statistics and brewery location the record supports the relevancy of Wisconsin as a distinguishable and economically significant market for the sale of beer.
35
This picture of beer competition as essentially a localized or regional matter is buttressed by evidence of marketing techniques used by the industry. Beer is not a fungible commodity like wheat; product differentiation is important, and the ordinary consumer is likely to choose a particular brand rather than purchase any beer indiscriminately. The record demonstrates a recognition in the industry that a successful sales program relies to a large extent on consumer recognition and preference for particular brands, and that this preference must be built up through intensive advertising and other promotional techniques. There is evidence in the record regarding efforts by Pabst and Blatz to enter new or undeveloped markets in this way, and the inference is inescapable that were a brewer from, say, Colorado, interested in entering the Wisconsin market, a great deal of costly preliminary promotional activity would be required before sizable Wisconsin sales could be expected. In addition, the record indicates that beer is sold through distribution networks operating on regional, statewide, and local levels. There are numerous examples in the record of the highly specialized salesmanship needed to induce local retail sellers to carry, display, and advertise new brands of beer.
36
This heavy emphasis on consumer recognition and promotional techniques in the marketing of beer supports the conclusion that there does exist a substantial barrier to a new competitor in a regional market such as Wisconsin. To enter this market the new entrant must be prepared to incur considerable expense over a substantial period of time creating a distribution network and advertising his brand in order to compete more or less on a parity with an established seller in the Wisconsin market.
37
A further factor, the pervasive state regulation of the sale and promotion of alcoholic beverages, well documented in the record supports the acceptability of Wisconsin as a relevant geographic market for beer. Methods of sales promotion permitted in one State are unlawful in others. State regulations govern labeling, size of containers, alcoholic content of beer, shipping procedures, and credit arrangements with wholesalers. A brewer wishing to enter the Wisconsin market does not merely start transporting beer to Milwaukee; he must comply with these various state requirements, which may differ from those in the States in which he has always dealt. Although this factor may not by itself be an effective barrier to distant competitors, it does reinforce the other factors examined in justifying the conclusion that there is a state or regional market for beer.
38
All of this, taken in the context of a prima facie case, supports the proposition that Wisconsin is an identifiable 'section of the country' presenting impediments to the entry of new competitors and insulating those already within the market. In terms of antitrust consequences, this means that those already within such a local market can engage in oligopolistic pricing or other practices without a very real threat that brewers operating in other areas could easily, and within a reasonably short time, enter the Wisconsin market as effective competitors of those already entrenched there.
39
It should be emphasized that we are faced here only with a dismissal after the presentation of the Government's case. On remand, the appellees can of course attempt to refute this showing by introducing evidence demonstrating either that these asserted barriers do not in practice exist, or that when seen in light of other factors they are so unimportant that brewers who presently do not sell in the Wisconsin market are not in fact appreciably hindered from entering as effective competitors.
III.
40
The trial court also found that viewing the entire continental United States as the relevant market, the evidence submitted did not sustain the Government's contention that the acquisition may substantially lessen competition. I would not disturb that conclusion. I do not of course pass upon the sufficiency of the evidence to establish a prima facie violation of § 7 within Wisconsin or the three-state area, an issue which the District Court had no occasion to reach in view of its determination that neither of these sections was a relevant market.
41
For these reasons I believe the District Court erred in dismissing the complaint at the close of the Government's case.
42
Mr. Justice WHITE, concurring.
43
I join the Court's opinion insofar as it holds the merger of Pabst and Blatz may substantially lessen competition in the beer industry in the Nation as a whole.
44
Mr. Justice FORTAS, concurring in the result.
45
The District Court clearly erred in dismissing the complaint. There is ample proof that the effect of this acquisition may be substantially to lessen competition in the production and sale of beer in well-defined sections of the country. But I cannot join the Court's opinion because contrary to the statements in that opinion, I believe that, in § 7 cases, it is the Government's duty, as plaintiff, to prove the 'market' or the 'section of the country' in which the claimed effect of the acquisition is manifest. This is an important, even essential, element of the judgment which must be made in a § 7 case. This Court has consistently recognized this. See, e.g., Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502; United States v. Philadelphia Nat. Bank, 374 U.S. 321, 355—362, 83 S.Ct. 1715, 1739. It is true that the search for the relevant market is frequently complicated and elaborated beyond reason or need—sometimes for purposes of delay or obstruction. But the search is nevertheless essential. It is not a snipe hunt.
46
In some situations, arithmetic as to the merging companies' aggregate volume of sales of the commodity involved may be impressive. Sometimes, the resulting size of the conjoined companies is great. But unless it can be shown that the effect may be 'substantially to lessen competition, or to tend to create a monopoly' in a specific section of the country, courts are not authorized to condemn the acquisition. Congress has been specific in at least this respect, and I cannot agree that this standard should be denigrated. Unless both the product and the geographical market are carefully defined, neither analysis nor result in antitrust is likely to be of acceptable quality. Compare majority and dissenting opinions in United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (involving §§ 1 and 2 of the Sherman Act).
1
38 Stat. 731, as amended, 64 Stat. 1125, 15 U.S.C. § 18 (1964 ed.).
2
The complaint charged that the merger violated § 7 of the Clayton Act in the following ways among others:
'(a) Actual and potential competition between Pabst and Blatz in the sale of beer has been eliminated;
'(b) Actual and potential competition generally in the sale of beer may be substantially lessened;
'(c) Blatz has been eliminated as an independent competitive factor in the production and sale of beer;
'(d) The acquisition alleged herein may enhance Pabst's competitive advantage in the production and sale of beer to the detriment of actual and potential competition;
'(e) Industry-wide concentration in the sale of beer will be increased.'
3
Times-Picayune v. United States, 345 U.S. 594, 611, 73 S.Ct. 872, 881, 97 L.Ed. 1277; United States v. E. I. Du Pont De Nemours & Co., 351 U.S. 377, 395, 76 S.Ct. 994, 1007, 100 L.Ed. 1264; United States v. Philadelphia Nat. Bank, 374 U.S. 321, 360, n. 37, 83 S.Ct. 1715, 1739, 10 L.Ed.2d 915.
4
See, e.g., United States v. Von's Grocery Co., 384 U.S. 270, 86 S.Ct. 1478, 16 L.Ed.2d 555; Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510; United States v. Philadelphia Nat. Bank, 374 U.S. 321, 83 S.Ct. 1715; United States v. El Paso Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12; United States v. Alcoa, 377 U.S. 271, 84 S.Ct. 1283, 12 L.Ed.2d 314; United States v. Continental Can Co., 378 U.S. 441, 84 S.Ct. 1738; FTC v. Consolidated Foods Corp., 380 U.S. 592, 85 S.Ct. 1220, 14 L.Ed.2d 95.
1
See in addition my concurring opinion in Brown, 370 U.S., at 368—369, 82 S.Ct., at 1548.
2
See, e.g., Bock, Mergers and Markets 35—42 (1960); Kaysen & Turner, Antitrust Policy 101—102 (1959); Martin, Mergers and the Clayton Act 321—322 (1959).
3
The evidence in the record supporting the Government's contention that the three-state area is a relevant geographic market in which to measure the effects of this acquisition is not significantly different from that supporting the Wisconsin market. For simplicity, this opinion will therefore discuss these criteria only in terms of the Wisconsin market.
4
Only one-third of the Nation's beer producers sold beer in the Wisconsin market.
| 78
|
384 U.S. 597
86 S.Ct. 1738
16 L.Ed.2d 802
FEDERAL TRADE COMMISSION, Petitioner,v.DEAN FOODS COMPANY et al.
No. 970.
Argued March 28, 1966.
Decided June 13, 1966.
[Syllabus from pages 597-598 intentionally omitted]
Solicitor General Thurgood Marshall for petitioner.
Hammond E. Chaffetz, Washington, D.C., for respondents.
Mr. Justice CLARK delivered the opinion of the Court.
1
At issue here is the power of the Court of Appeals under the All Writs Act, 28 U.S.C. § 1651(a) (1964 ed.), to temporarily enjoin the consummation of a merger that is under attack before the Federal Trade Commission as violative of § 7 of the Clayton Act, as amended, 64 Stat. 1125, 15 U.S.C. § 18 (1964 ed.). This case arose on the application of the Commission for a temporary restraining order and a preliminary injunction against respondents Dean Foods Company and Bowman Dairy Company to maintain the states quo until the Commission determined the legality of their merger. The Commission alleged that it had issued a complaint against respondents under § 7 of the Clayton Act and § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 52 Stat. 111, 15 U.S.C. § 45 (1964 ed.), and that from the facts underlying the complaint 'it is probable that the Federal Trade Commission will enter an order finding a violation of these laws.' The petition stated that there was a 'compelling' need for preliminary relief since the 'acquisition itself will split Bowman in two—Dean will acquire fixed assets, receivables and good will; Bowman will retain all cash, government and other marketable securities, and some real estate investments' for distribution to its stockholders.1 In addition, it was alleged that Dean planned to dispose of most of Bowman's retail milk routes, certain of its plants and equipment, and to consolidate the remaining assets. The Commission thus argued that if the merger were allowed to be completed, 'Bowman as an entity will no longer exist,' and that it 'will be 'extremely difficult and very probably impossible" to restore Bowman as 'a viable independent' company if the merger were subsequently ruled illegal. In other words, consummation of the agreement would 'prevent the Commission from devising, or render it extremely difficult for the Commission to devise, any effective remedy after its decision on the merits.' As grounds for issuance of an extraordinary writ, the Commission asserted that the Court of Appeals 'will, in effect, be deprived of its appellate jurisdiction (over final Commission orders) and of the opportunity to enter a meaningful final order of its own in respect to this acquisition, since the res in custodia legis Bowman—will have vanished.'
2
The Court of Appeals entered a temporary restraining order against respondents, as prayed. On the hearing for a preliminary injunction, however, it dissolved the temporary restraining order and dismissed the petition for the reasons that 'no cease and desist order has been entered by the Commission relative to the subject matter in the case at bar and * * * we now hold that the Commission did not have authority to institute this proceeding in this court * * *.' In its final judgment the Court of Appeals supported its refusal to grant relief at the request of the Commission by reference to the fact that:
3
'in the 84th Congress and in the 89th Congress bills sponsored by the said Commission were introduced, which bills if enacted into law would have conferred upon the Commission such authority as it is attempting to exercise in the case now before this court, but that said measures were not enacted into law and Congress has not provided otherwise for bestowing this authority upon said Commission.' 356 F.2d 481, 482.
4
A few hours after the Court of Appeals entered its order on January 19, 1966, the contract was closed and Dean acquired legal title to Bowman's operating assets. Upon application by the Solicitor General on behalf of the Commission, Mr. Justice Clark, after consulting the other members of this Court, entered a preliminary injunction on January 24, 1966, restraining respondents from making any material changes with respect to Bowman's corporate structure or the assets purchased. This order provided that Dean might sell Bowman's retail home delivery routes upon terms and conditions acceptable to the Commission, but that any milk supplied by Dean to the purchasers of the routes must continue to be delivered under the Bowman label and from former Bowman plants. We granted certiorari on February 18, 1966, 383 U.S. 901, 86 S.Ct. 716, 15 L.Ed.2d 844, and expedited consideration of this case. We conclude that the Court of Appeals erred and reverse its judgment.
I.
5
Since the case comes to us from a dismissal on jurisdictional grounds we must take the allegations of the Commission's application for a preliminary injunction as true. We need not detail the facts further than to say that Dean and Bowman were substantial competitors in the sale of packaged milk in the Chicago area, one of the largest markets in the United States for packaged milk. On November 2, 1965, attorneys for Dean and Bowman met with representatives of the Commission to discuss a proposal by Dean to purchase all of Bowman's plants and equipment, the Bowman name, all customer and supplier lists together with the benefit of their relationships, and various other assets, all of which were situated in the Chicago area. Bowman would consequently cease doing a dairy business there. It was emphasized that the inquiry was merely to ascertain the views of the staff of the Commission and not to secure a formal advisory opinion. After investigation, on December 3, 1965, the Commission's staff advised Dean's counsel that it believed the acquisition would raise serious questions under the antitrust laws, and that on the basis of existing information the staff would recommend that the Commission issue a complaint against the acquisition if consummated. After further meetings, Dean's counsel informed the Commission's staff on December 14, 1965, that the agreement had been signed. A week later the Commission issued a formal complaint charging that the agreement violated § 7 of the Clayton Act and § 5 of the Federal Trade Commission Act.
6
It appears that at the time of the merger Dean was the third or fourth largest distributor of packaged milk in the Chicago area; Bowman was at least the second largest in that market; and together they enjoyed approximately 23% of the sales of packaged milk in the same area, while the four largest dairy companies had a 43% share thereof. Affidavits attached to the Commission's application alleged that between 1954 and 1965 the number of packaged milk sellers in the Chicago market had declined from 107 to 57, and that in the four months prior to the filing of the complaint four more firms had been eliminated by acquisitions. From these statistics it was concluded that the effect of Dean's acquisition of Bowman would be to substantially lessen competition. We place in the margin the Commission's summation of its complaint.2
II.
7
The All Writs Act, 28 U.S.C. § 1651(a), empowers the federal courts to 'issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.' The exercise of this power 'is in the nature of appellate jurisidiction' where directed to an inferior court, Ex parte Crane, 5 Pet. 190, 193, 8 L.Ed. 92 (1832) (Marshall, C.J.), and extends to the potential jurisdiction of the appellate court where an appeal is not then pending but may be later perfected. Cf. Ex parte Bradstreet, 7 Pet. 634, 8 L.Ed. 810 (1833) (Marshall, C.J.). These holdings by Chief Justice Marshall are elaborated in a long line of cases, including McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762 (1910), where Mr. Justice Day held: '(w)e think it the true rule that where a case is within the appellate jurisdiction of the higher court a writ * * * may isse in aid of the appellate jurisdiction which might otherwise be defeated * * *.' At 280, 30 S.Ct. at 504. And in Roche v. Evaporated Milk Assn., 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185 (1943), Chief Justice Stone stated that the authority of the appellate court 'is not confined to the issuance of writs in aid of a jurisdiction already acquired by appeal but extends to those cases which are within its appellate jurisdiction although no appeal has been perfected.' At 25, 63 S.Ct. at 941. Likewise, decisions of this Court 'have recognized a limited judicial power to preserve the court's jurisdiction or maintain the status quo by injunction pending review of an agency's action through the prescribed statutory channels. * * * Such power has been deemed merely incidental to the courts' jurisdiction to review final agency action * * *.' Arrow Transp. Co. v. Southern R. Co., 372 U.S. 658, 671, n. 22, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963). There the Court cited such authority as Scripps-Howard Radio, Inc. v. Federal Communications Comm'n, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942); West India Fruit & S.S. Co. v. Seatrain Lines, Inc., 170 F.2d 775 (C.A.2d Cir. 1948); and Board of Governors of Federal Reserve System v. Transamerica Corp., 184 F.2d 311 (C.A.9th Cir.), cert. denied, 340 U.S. 883, 71 S.Ct. 197, 95 L.Ed. 641 (1950).
8
Section 11(c) of the Clayton Act, as amended, 73 Stat. 243, 15 U.S.C. § 21(c), gives exclusive jurisdiction to review final orders by the Commission against illegal mergers, on application of '(a)ny person required by such order * * * to cease and desist from any such violation,' to the courts of appeals 'for any circuit within which such violation occurred or within which such person resides or carries on business.' This grant includes the traditional power to issue injunctions to preserve the status quo while administrative proceedings are in progress and prevent impairment of the effective exercise of appellate jurisdiction. Cf. Continental Ill. Nat. Bank & Trust Co. of Chicago v. Chicago, R.I. & P.R. Co., 294 U.S. 648, 675, 55 S.Ct. 595, 605, 79 L.Ed. 1110 (1935). A recent case involving a similar statutory proceeding is dispositive of this issue. Whitney Nat. Bank in Jefferson Parish v. Bank of New Orleans, 379 U.S. 411, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965), raised the question whether holding companies were 'lawfully entitled' to operate subsidiary banks within Louisiana, a question we held should be determined in the first instance by the Federal Reserve Board. We further concluded that the Board should reconsider its initial approval of such a plan in light of an intervening Louisiana statute, and so gave the parties, who had sought review of the Board's order before the Court of Appeals for the Fifth Circuit, an opportunity to move that the case be remanded to the Board. It was noted that the Court of Appeals had authority 'to issue such orders as will protect its jurisdiction pending final determination of the matter,' at 415, 85 S.Ct. at 555, and that § 1651(a) empowered it to stay 'the order of approval of the Federal Reserve Board pending final disposition of the review proceeding.' At 425, 85 S.Ct. at 560. In response to the argument that the stay would not be sufficient because the Comptroller of Currency nonetheless intended to issue a certificate to the bank, we stated that if 'the Court of Appeals should find it necessary to take direct action to maintain the status quo and prevent the opening of the bank, it has ample power to do so' by an injunction against the applicants before the Federal Reserve Board themselves. At 426, 85 S.Ct. at 560. Such action would be analogous to the relief requested here by the Commission.3
9
These decisions furnish ample precedent to support jurisdiction of the Court of Appeals to issue a preliminary injunction preventing the consummation of this agreement upon a showing that an effective remedial order, once the merger was implemented, would otherwise be virtually impossible, thus rendering the enforcement of any final decree of divestiture futile.
III.
10
Dean and Bowman insist, however, that as a creature of statute the Commission may exercise only those functions delegated to it by Congress, and that Congress has failed to give the Commission express statutory authority to request preliminary relief under the All Writs Act.4 But the Commission is a governmental agency to which Congress has entrusted, inter alia, the enforcement of the Clayton Act, granting it the power to order divestiture in appropriate cases. At the same time, Congress has given the courts of appeals jurisdiction to review final Commission action. It would stultify congressional purpose to say that the Commission did not have the incidental power to ask the courts of appeals to exercise their authority derived from the All Writs Act.5 Indeed, the opinions in Arrow Transportation Co. and Whitney Nat. Bank necessarily recognized the standing of administrative agencies to seek such preliminary relief to ensure effective judicial review. Both decisions referred to Board of Governors of Federal Reserve System v. Transamerica Corp., supra, where the Court of Appeals stayed a merger on application by the Federal Reserve Board. See also Public Utilities Comm'n of Dist. of Col. v. Capital Transit Co., 94 U.S.App.D.C. 140, 214 F.2d 242 (1954), and West India Fruit & S.S. Co. v. Seatrain Lines, Inc., 170 F.2d 775, 779 (C.A.2d Cir. 1948). There is no explicit statutory authority for the Commission to appear in judicial review proceedings, but no one has contended it cannot appear in the courts of appeals to defend its orders. Nor has it ever been asserted that the Commission could not bring contempt actions in the appropriate court of appeals when the court's enforcement orders were violated, though it has no statutory authority in this respect. Such ancillary powers have always been treated as essential to the effective discharge of the Commission's responsibilities.
11
It must be remembered that the courts of appeals derive their power to grant preliminary relief here not from the Clayton Act, but from the All Writs Act and its predecessors dating back to the first Judiciary Act of 1789. Congress has never restricted the power which the courts of appeals may exercise under that Act. Nor has it withdrawn from the Commission its inherent standing as a suitor to seek preliminary relief in courts of appropriate jurisdiction.6 In the absence of explicit direction from Congress we have no basis to say that an agency, charged with protecting the public interest, cannot request that a court of appeals, having jurisdiction to review administrative orders, exercise its express authority under the All Writs Act to issue such temporary injunctions as may be necessary to protect its own jurisdiction.
12
Respondents point—as did the Court of Appeals—to the fact that the Commission sought authority from both the Eighty-fourth and Eighty-ninth Congresses to grant preliminary injunctions itself or to proceed in the distrct court as the Department of Justice can under the Clayton Act.7 Both former Chairman Gwynne and Chairman Dixon appeared in support of the measures,8 and referred to Federal Trade Comm'n v. International Paper Co., 241 F.2d 372 (C.A.2d Cir. 1956), which held the Commission had no standing to seek preliminary injunctions from the courts of appeals.9 In addition, several Congressmen made statements regarding the need for statutory amendment.10 However, no proposal was put before the Congress relating to the authority of the Commission to secure preliminary relief before the courts of appeals in accordance with § 1651(a). The proposals concerned only the power of the Commission itself to issue preliminary relief or to proceed in the district courts for that purpose.
13
Congress neither enacted nor rejected these proposals; it simply did not act on them.11 Even if it had, the legislation as proposed would have had no effect whatever on the power that Congress granted the courts by the All Writs Act. We cannot infer from the fact that Congress took no action at all on the request of the Commission to grant it or a district court power to enjoin a merger that Congress thereby expressed an intent to circumscribe traditional judicial remedies. Cf. Scripps-Howard Radio, Inc. v. Federal Communications Comm'n, 316 U.S. 4, 11, 62 S.Ct. 875, 880, 86 L.Ed. 1229 (1942). The decision in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950), is apposite. Following an adverse decision in Eisler v. Clark, 77 F.Supp. 610 (D.D.C.1948), the Department of Justice asked Congress for legislation exempting the Immigration Service from the Administrative Procedure Act. 60 Stat. 237, 5 U.S.C. § 1001 (1964 ed.). As was the case here, the appropriate committees of both Houses reported the proposal favorably but Congress adjourned without taking any action. The Department nonetheless insisted in Wong Yang Sung that hearings in deportation cases did not have to conform to the requirements of the Administrative Procedure Act. In his discussion of legislative history, Mr. Justice Jackson wrote for a unanimous Court that 'we will not draw the inference, urged by petitioner, that an agency admits that it is acting upon a wrong construction by seeking ratification from Congress. Public policy requires that agencies feel free to ask legislation which will terminate or avoid adverse contentions and litigations.' At p. 47 of 339 U.S., at p. 453 of 70 S.Ct. This Court has consistently refused to construe such requests by government agencies and the resulting nonaction of the Congress as affirmative evidence of no authority.12 Thus, in United States v. E. I. Du Pont De Nemours & Co., 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1957), Mr. Justice Brennan held:
14
'During the 35 years before this action was brought (in 1949), the Government did not invoke § 7 against vertical acquisitions. The Federal Trade Commission has said that the section did not apply to vertical acquisitions. See F.T.C., Report on Corporate Mergers and Acquisitions, 168 (1955), H.R. Doc. No. 169, 84 th Cong., 1st Sess. Also, the House Committee considering the 1950 revision of § 7 stated that '* * * it has been thought by some that this legislation (the 1914 Act) applies only to the socalled horizontal mergers. * * *' H.R. Rep. No. 1191, 81st Cong., 1st Sess. 11. The House Report adds, however, that the 1950 amendment was purposed '* * * to make it clear that the bill applies to all types of mergers and acquisitions, vertical and conglomerate as well as horizontal * * *.' (Emphasis added.)
15
'This Court has the duty to reconcile administrative interpretations with the broad antitrust policies laid down by Congress. * * * The failure of the Commission to act is not a binding administrative interpretation that Congress did not intend vertical acquisitions to come within the purview of the (1914) Act.' At p. 590, 77 S.Ct. at 875.
16
Despite the representations of the Commission that the 1914 Act did not apply to vertical mergers, its sponsorship of legislation to so enlarge its coverage, and the passage of the 1950 Act by the Congress for this purpose, this Court nonetheless held that the 1914 Act included vertical mergers from its very inception, and thus required du Pont to divest its interest in General Motors stock, which had been acquired in 1915.
17
It is therefore clear that the 'proceedings' in the Congress with reference to the authority of the Commission itself to issue or apply to the district courts for the issuance of preliminary injunctions in merger cases have no relevance whatever to the question before us. In short, Congress gave no attention to the exercise of judicial power by the courts of appeals under the All Writs Act, leaving that power intact and the standing of the Commission to invoke it undiminished. We thus hold that the Commission has standing to seek preliminary relief from the Court of Appeals under the circumstances alleged. As stated earlier, we must take the allegations of the Commission as true, and so do not pass upon whether preliminary injunction should be whether a preliminary injunction should be issued. That is for the Court of Appeals to decide on remand, as it would decide any application to it for relief under the All Writs Act.
18
Reversed and remanded.
19
Mr. Justice FORTAS, with whom Mr. Justice HARLAN, Mr. Justice STEWART and Mr. Justice WHITE, join, dissenting.
20
The Court today decides that the courts of appeals must entertain original applications by the Federal Trade Commission for the issuance of preliminary injunctions to restrain mergers alleged to violate § 7 of the Clayton Act, 15 U.S.C. § 18 (1964 ed.), pending proceedings before the Commission to determine whether such mergers violate that section.
21
In so deciding, the Court determines that the Commission—an administrative agency with defined and circumscribed powers—is authorized to seek such relief in the courts of appeals; and that the courts of appals, under the All Writs Act, 28 U.S.C. § 1651(a) (1964 ed.), have power to entertain the Commission's petition and to grant the injunctive relief.
22
This decision cannot be supported. Not a single one of the prior decisions of this Court cited as authority sustains it, either specifically or indirectly, or by principle or analogy. No statute of the Congress can be appropriately summoned to the Court's aid. The plain, unmistakable intent of the Congress in defining the Commission's powers and the jurisdiction of the courts of appeals is that no such threshold injunctive power is available at the Commission's behest. The Act plainly and explicitly vests the governmental power to restrain and enjoin violations of the Act in the district courts, not in the court of appeals; and it plainly and explicitly empowers the United States attorneys 'under the direction of the Attorney General'—and not the Federal Trade Commission—to institute such proceedings. 15 U.S.C. § 25 (1964 ed.).
23
Since 1956, the Federal Trade Commission has persistently requested the Congress to enact legislation giving the Commission itself the power to enjoin, or alternatively, to seek a district court order to enjoin mergers pending the outcome of the Commission's proceeidngs. Congress has just as persistently refused to do so.
24
Beginning in 1956, at least 37 bills have been introduced in the Congress, directed to providing the Commission with a threshold, temporary remedy. None has been enacted, despite the unequivocal statements of the three chairmen of the Commission who served during those years that the agency presently has no power to seek relief ancillary to its administrative proceedings. This Court now bestows what the Congress has withheld.
25
The statements in the Court's opinion indicating that its result is necessary unless we are to 'stultify congressional purpose' fly in the teeth of the record, plainly written and repeatedly reiterated. Congress is keenly interested in enforcement of § 7. But it has demonstrated over and over again that it has no interest in arming the Commission with the power today conferred upon it. It created and equipped the Commission with administrative and quasi-judicial powers to serve a function quite distinct from that of a prosecutor or litigant. It has repeatedly declined the urgent request to revise the Commission's role and function. Indeed, Congress has refused to empower the Commission to ask for this relief in an otherwise suitable forum the district courts. But the Court today gives this agency, which Congress obviously regards as unsuitable for the purpose, power to resort to an unsuitable forum—the courts of appeals—for the same purpose.
26
The Commission, the Executive Branch of the Government, the Congress and all courts which have passed upon the point have until today proceeded on the expressed premise that the Federal Trade Commission has no authority to seek such relief.1 I have not found a single commentator in this much-discussed field of law who has suggested that the Commission has such authority, and none is cited in the Court's opinion or in the briefs of the parties.2
27
I can only assume that the majority is motivated by a desire to lend all assistance to the Federal Trade Commission in its administration of § 7. However commendable this motivation may be in general, it is here entirely misdirected. Indulgence in this generous spirit ujustifiably burdens the courts of appeals with a fact—finding duty which they are unable to perform; disrupts the statutory division of functions between the Commission and the Department of Justice; and deprives parties of the opportunity for fair and careful consideration of their proposals which is promised by our law, by the decisions of this Court and the economic needs of the Nation.
28
The Clayton Act contains specific and comprehensive enforcement provisions. There is no vacuum to be filled by ingenuity. There is no room for improvisation. The Act is fully armed with a triple arsenal. Enforcement powers with respect to mergers under § 7 are vested in the Department of Justice, the Federal Trade Commission and private persons who claim injury as a result of the merger. Both the Department of Justice and private litigants are authorized to seek injunctive relief in the district courts. But the role and function of the Federal Trade Commission is differently conceived.
29
The powers of the Commission and the manner of their exercise and of review and enforcement of Commission orders are set out in meticulous detail. Whenever the Commission 'shall have reason to believe that any person is violating or has violated' § 7, it shall issue a complaint. The complaint is to be served upon 'such person and the Attorney General.' The Attorney General may intervene in the Commission's proceeding. He may institute actions in the district court for injunctive relief. The Commission is to hold a hearing; testimony is to be taken; the Commission is to 'make a report in writing'; and it is empowered to issue an order to cease and desist and to compel the respondent to 'divest itself of the stock * * * or assets * * * held * * * contrary to the provisions of (§ 7).' 15 U.S.C. § 21(b) (1964 ed.). (Emphasis supplied.) The respondent may obtain review of the order in an appropriate court of appeals in the manner and with the consequences meticulously defined in the Act, as hereinafter discussed.
30
There is no question—I submit that there can be no question that Congress from the outset intended that the Federal Trade Commission should not have other or different or supplementary or additional power to enforce § 7.3 The Commission was created in the same year that the Clayton Act was adopted. It was supposed to be an expert, administrative agency. It was not intended to be a litigation arm of the United States except as its own final orders might be involved.4 It was not intended to have power to seek or deliver the quick result, even in emergencies. This power, so far as the Government is concerned, was explicitly carefully confined to the district courts on application of the United States attorney 'under the direction of the Attorney General.'
31
Section 15 of the Clayton Act, 15 U.S.C. § 25, expressly authorizes the Department of Justice to proceed in the district courts of the United States to obtain preliminary relief against allegedly unlawful mergers. Section 16 makes the same remedy available on application of private litigants. 15 U.S.C. § 26 (1964 ed.). Nowhere is such power given to the Commission. It would be incredible to suggest that this omission was an oversight or even an error. It was by design—and, I suggest, by rational design.
32
The Commission was not intended to—it has no power to—it should not—make a judgment on the merits prior to notice and hearing. To sanction its doing so is to strike a devastating blow at the fundamental theory upon which the exercise of both prosecutorial and adjudicatory functions by an administrative agency is based. Cf. s 5(c) of the Administrative Procedure Act of 1946, 5 U.S.C. § 1004(c) (1964 ed.).
33
The Commission, prior to taking evidence and writing a report, is supposed to make only a very limited judgment: that there is 'reason to believe' the law is being violated. But to obtain a preliminary injunction, it must—without hearing the other side, and ordinarily merely on its staff's recommendation, necessarily based upon a quick exposure of the facts—file affidavits or produce evidence with the calculated purpose of demonstrating to the court of appeals that consummation of the merger will have such adverse effects that it must be halted in limine. In fact, and in all realism, it must take positions and establish, with sufficient positiveness to overcome strenuous opposition, that the merger will tend substantially to lessen competition or create danger of monopoly, that it is harmful to the economy, immediately threatening in its consequences, and that it is unlawful. There must be Commission conclusions, not merely the views of the staff. Their assertion and necessarily stout advocacy make a mockery of a subsequent quasi-judicial proceeding in which the Commission is supposed objectively to consider the same issues on the basis solely of the record.
34
The clear design of the statute is that the authority to decide, on behalf of the Government, to seek the powerful remedy of preliminary injunction, and the power to do so, are vested in the Attorney General. That is his business—his type of function. It is deliberately withheld from the Commission. That is not its business. The Commission is supposed to be an expert agency, acting deliberately, bringing to bear upon the complex economic problems of a merger, that judgment and experience which can emerge only from careful factual inquiry, the taking of evidence and the formulation of a report. The Federal Trade Commission was not intended to be a gun,5 a carbon copy of the Department of Justice.6
35
It has steadily been acknowledged by spokesmen for the Commission, by leading members of the Congress, and by officials of the Executive Branch that the FTC has no basis in statute to seek the relief the Court today makes available to it. In the Appendix to this opinion, I refer to these acknowledgments and I describe the unsuccessful oft-repeated efforts of the Commission to obtain legislation to give it the power it has now successfully obtained from this Court.7
36
In short, the Commission has no power to decide that a proposed merger should be enjoined pendente lite; it has no authority to seek such relief, temporary or permanent, in any court—trial or appellate; and Congress has repeatedly turned a deaf ear to its requests for such power.
37
It should not be given such jurisdiction by fiat of this Court. It should do what Congress intended it to do—upon determining that it has 'reasonable cause to believe' that § 7 is being or has been violated, it should issue a complaint, hold a hearing, make a report, and issue an order. If exigencies require, it may refer the matter to the Attorney General for consideration as to whether the Department of Justice should seek a preliminary injunction in the appropriate district court.8 If the merger is consummated, the Commission should, if warranted, exercise the enormous power that the statute expressly gives it: to require the offender to 'divest itself of the stock, or other share capital, or assets, held * * * contrary to the provisions' of § 7. It is a cliche of doubtful truth in this situation that an omelette cannot be unscrambled. This Court, as well as the Commission, has entered such orders of divestiture after—and sometimes long after—the merger has been consummmated. See, e.g., United States v. Von's Grocery Co., 384 U.S. 270, 86 S.Ct. 1478, 16 L.Ed.2d 555 (decree six years after merger); United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (decree seven years after merger). Unscrambling may be difficult; but Congress may well have been justified in the view that the extra effort is warranted in the interests of securing what it hoped would be careful administrative consideration of the merits of proposed mergers. Not every merger deserves sudden death. In many situations, mergers serve no purpose except the pursuit of bigness. But some are distinctly beneficial to the achievement of a competitive economy.9 I respectfully submit that this Court should not encourage the machinegun approach to the vastly important and difficult merger problem. It should indulge the Congress in its desire that at least the Federal Trade Commission should be required to move with caution and deliberation. A 'preliminary' injunction, in effect during the years required to complete the Commission's proceedings, often probably usually—means that the plans to merge will be abandoned.10 We should not beguile ourselves by ignoring this point. 'Preliminary' here usually means final. And I respectfully suggest that it is permissible for Congress to insist that the merits of mergers should be carefully considered.
38
I come now to the second phase of the Court's opinion. Having satisfied itself that the Commission may apply to the courts of appeals for preliminary injunctions, the Court turns to the question of the jurisdiction of the appellate courts to entertain such applications. It finds jurisdiction in the courts of appeals by reason of the All Writs Act: 'The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.' 28 U.S.C. § 1651(a).
39
This is, in my opinion, a totally unjustified employment of the All Writs Act. That Act is an implementing statute, designed to authorize the courts to supply deficiencies in procedure so as to enable them effectively to exercise their jurisdiction. The Act is abused where, as here, it is contorted to confer jurisdiction where Congress has plainly withheld it. The reason why this Court may not command or vindicate the exercise of jurisdiction by the courts of appeals to issue, as an original matter, injunctions against claimed violations of § 7 are overwhelming. In summary, they are:
40
1. The courts of appeals have no jurisdiction with respect to § 7 except to review an order entered by the Commission after statutory proceedings. Until such an order is entered, they have no jurisdiction, either existing or potential, which an injunctive order may implement.
41
2. By express statutory provision, even after a Commission order has been entered, the courts of appeals have no jurisdiction as to the merits of the merger, on application of the Commission. Only a party affected by the Commission's order may file a petition to review. If one does not, the Commission's sole remedy is to seek penalties in the district courts under 15 U.S.C. § 21(l).11
42
3. The statute contains its own 'all writs' provision which is clearly and specifically limited to instances in which the court of appeals' jurisdiction has already attached upon petition to review a Commission order filed by a person who is the target of that order.
43
4. There is not a single precedent of this Court which supports the Court's conclusion. None of the cases of this Court cited in the majority opinion lends it the slightest support.
44
5. Exclusive jurisdiction to issue preliminary injunctions against mergers is vested in the district courts, upon application of the Department of Justice or a private person. The courts of appeals have no jurisdiction to enter such orders.
45
6. The courts of appeals are not equipped to make the original, complex factual determinations necessary to decide whether a prospective merger should be enjoined. To burden them with this task is to distort their function; to saddle them with a function which they cannot perform; to load upon them the necessity of twice passing upon a challenged merger; and to deprive the parties of an opportunity for a hearing in a forum equipped to make original factual determinations.
46
The jurisdiction and powers of the courts of appeals with respect to Commission proceedings under § 7 are defined by the statute in specific and exhaustive detail. A petition to review may be filed with an appropriate court of appeals by '(a)ny person required by (an) order of the commission' to cease or desist or to divest itself of stock or assets. 15 U.S.C. § 21(c). The Court's jurisdiction attaches upon the filing of the petition, ibid., and becomes exclusive upon filing of the record with it. 15 U.S.C. § 21(d). The Commission's findings as to the facts are conclusive if supported by substantial evidence. 15 U.S.C. § 21(c). If additional evidence is to be taken, the Court must remand to the Commission; it cannot itself take evidence. Ibid. The Court may affirm, modify or set aside the Commission's order. It may enforce the Commission's order as affirmed and may 'issue such writs as are ancillary to its jurisdiction or are necessary in its judgment to prevent injury to the public or to competitors pendente lite.' Ibid.
47
The Court does not—it could not—contend that these provisions lend the slightest support to its conclusion. They clearly, emphatically, and pointedly contradict it. The courts of appeals have jurisdiction when and if, and only if and when, a Commission order has been entered and a petition for review is filed—not by the Commission but by the aggrieved person.12 When a petition for review is filed, the court of appeals has 'plenary' jurisdiction, implemented by the self-contained all-writs provision; and when the record is filed, that jurisdiction is exclusive. Prior to the entry of the Commission's order, the courts of appeals simply have no jurisdiction, existing or potential. The general All Writs Act is limited to writs 'in aid of their respective jurisdictions.' It is not a charter to be used at the behest of an administrative agency in order to supply it with a weapon which Congress has withheld. This is clear enough; and nothing in our prior decisions expands the meaning of the All Writs Act to cover the present situation.
48
The Court cites a number of cases to prove that an appeal need not have been perfected to call into play the power of the appellate courts to issue protective writs. This is clear and obvious as applied in those cases. Each of them involved issuance of a writ to prevent action or inaction by a trial court which would otherwise mean that the case would not be adjudicated on its merits and therefore could not be reviewed on appeal. The typical case involves the issuance of mandamus to the trial court to compel it to proceed with the adjudication of a pending case. In this category are the first three cases cited on the point by the Court.13
49
The fourth case cited by the Court clearly demonstrates the correct principle and the error of the Court's decision in the present case. In Roche v. Evaporated Milk Assn., 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185 (1943), the respondent was indicted for price fixing. It filed a plea in abatement based upon an alleged fault in the authorization of the indictment. The District Court dismissed the plea. On application for a writ of mandamus, the Court of Appeals reversed, but this Court reversed the Court of Appeals because whatever might have been the merits of the District Court's dismissal of the plea in abatement, that dismissal did not defeat appellate jurisdiction. The District Court would proceed to adjudicate the merits of the case, and appellate jurisdiction would thereafter be available. The Court (per Chief Justice Stone) stated that 'while a function of mandamus in aid of appellate jurisdiction is to remove obstacles to appeal, it may not appropriately be used merely as a substitute for the appeal procedure prescribed by the statute.' Id., at 26, 63 S.Ct. at 1941. The Court said that 'The traditional use of the writ in aid of appellate jurisdiction * * * has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.' Ibid. Since the District Court was proceeding to adjudicate the case, and any error it might have committed would come to the appellate courts upon appeal, the Court held that the Court of Appeals erred in issuing the writ.
50
These decisions, therefore, are far from supporting the Court's decision in the present case. They are to the precise contrary. They demonstrate the obvious meaning of the language of the All Writs Act: that it is to be employed 'in aid of' appellate jurisdiction—not to vest general restraining power in the courts of appeals, but to authorize them to overcome action or inaction which would prevent the case from proceeding to judgment and then to appellate review in the ordinary course. Nothing of the sort nothing resembling it—appears in the present situation. The Commission may proceed with its hearings, as provided by statute. As provided by statute, it may enter an order requiring respondents to divest themselves of the acquired assets. It may even—although I express no opinion on the issue—require action by the respondents, if they have irretrievably disposed of some or all of the assets, to take additional action to make available assets, customers, etc., for purchase by others so as to recreate a competitor, perhaps even if such action involves disposition of nonacquired assets.14 And the appropriate court of appeals and this Court will have full, complete appellate jurisdiction with respect to its order.
51
The Court cites four of its prior decisions involving the availability of the All Writs Act in connection with administrative proceedings. These provide no assistance to it. First, it refers to Arrow Transp. Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52. This case is precisely contra to the Court's conclusion here. After a 'brief and informal' hearing which led to a tentative conclusion that the increase was 'unreasonable,' the ICC suspended respondent's proposed rate increase and instituted a formal proceeding to adjudicate the reasonableness of the increase. The proceeding was still in progress when the maximum time provided by statute for suspension of the increase expired. Petitioner sued in the District Court, seeking an injunction pending the Commission's decision. This Court sustained denial of the injunction. It held that the Commission's jurisdiction was exclusive of any power in the courts to grant the relief, and that Congress' action in vesting power in the Commission left no latitude for court action even though it might mean that the small shipper could not continue in business under the higher rate. Mr. Justice Brennan, speaking for the Court observed, in words that are applicable here, that if the courts were to entertain petitioner's application for an injunction against the effectiveness of the rates pending Commission decision, they would in effect be prejudging the case and prejudicing administrative action. '(S)uch consideration,' he said, 'would create the hazard of forbidden judicial intrusion into the administrative domain.' Id., at 670, 83 S.Ct., at 990. Correspondingly, I suggest that it is unlikely in the real world that if the Federal Trade Commission made representations to a court of appeals that a merger should be enjoined pending Commission proceedings, and if the court issued such an injunction, the Commission's ultimate determination would be uninfluenced by these powerful factors. I respectfully suggest that this is not a tolerable result.15
52
I come now to the case which the Court's opinion characterizes as 'dispositive' of 'this issue.' Whitney National Bank in Jefferson Parish v. Bank of New Orleans, 379 U.S. 411, 85 S.Ct. 551, 13 L.Ed.2d 386.16 It is indeed a square holding on an issue that is not anywhere near the problem of this case. Whitney holds that a court of appeals may enter such orders as will protect its jurisdiction—its jurisdiction having fully attached by a prior appeal from a final order of the Federal Reserve Board, in accordance with statute. Briefly stated, the Federal Reserve Board had entered an order permitting a New Orleans bank to operate a subsidiary in Louisiana through a holding company. A petition to review that order was duly filed, pursuant to statute, in the Court of Appeals for the Fifth Circuit. While this was pending, Louisiana enacted a statute bearing on the problem. Meanwhile, the Comptroller of the Currency indicated that he would issue a certificate to the new bank. Competing banks filed in the District Court for the District of Columbia an action for injunction against the Comptroller. The injunction was granted and the Court of Appeals for the District of Columbia Circuit affirmed. It was the latter action that was before this Court, on certiorari. This Court held that the District Court had no jurisdiction to pass on the merits of the controversy by enjoining the Comptroller; that exclusive jurisdiction as to the authorization of the new bank was vested in the Federal Reserve Board. But it stayed its mandate for 60 days to give the parties time to move in the Fifth Circuit for a remand to the Federal Reserve Board for reconsideration of its order in light of the subsequent Louisiana statute. On remand, the Court stated, 'the Fifth Circuit's power to protect its jurisdiction is beyond question,' id., at 426, 85 S.Ct. at 561—this in a case which had been in the Court of Appeals for three years following final agency action.
53
This is entirely in accord with the traditional and established construction of the All Writs Act, and with the statute governing proceedings of the Federal Reserve Board. Jurisdiction had properly been acquired by the Court of Appeals for the Fifth Circuit. Of course, it had power to issue whatever orders were necessary to preserve its jurisdiction, pending remand or otherwise. The Court's statement that it is 'analogous' to the relief requested by the Commission is simply in error. It is analogous only if we disregard the facts that in Whitney, a final order had been entered by the administrative agency, appeal taken and the jurisdiction of the Court of Appeals had attached. Whereas in the present case none of these has occurred and we are bluntly asked to vest the courts of appeals with authority to consider issuing an injunction as a matter of original jurisdiction—without an agency order, without an appeal, and without statutory jurisdiction.
54
The net of the matter is simply, plainly and clearly that the decision of the Court in this case is novel—totally novel. It is in direct contravention of the careful, specific plan and directions of the Congress with respect to the administration of § 7 of the Clayton Act. It is in direct conflict with the purpose and office of the All Writs Act. It is totally unsupported by prior decisions of this Court and contrary to both Roche, supra, and Arrow Transportation, supra. It is unwise in terms of the administration of § 7. It places an unwise, unjustified and disruptive burden on the courts of appeals and saddles them with original jurisdiction which they cannot properly exercise and a fact-finding function in elaborate, complex situations, which they should not be asked to undertake.
55
The courts of appeals are not courts of original jurisdiction. They have neither the facilities nor the institutional aptitude for determining in the first instance whether a particular merger should be halted. This is always intensely a question of fact—hotly controverted—turning upon factual-economic problems such as the ascertainment of facts as to the 'line of commerce,' the 'section of the country' and the probable effect upon competition. And these are questions committed in the first instance to the FTC and not to the courts. See Whitney National Bank in Jefferson Parish v. Bank of New Orleans, supra, at 421, 85 S.Ct. at 558.
56
Without any findings of the Commission or a court, the courts of appeals are now burdened with the task of deciding these questions. The fact of the matter is that the Court's decision commands the courts of appeals to be trial courts for purposes of those § 7 cases which the Commission chooses to bring before them. I share the view expressed by my Brother Black and joined by my Brother Douglas that:
57
'The business of trial courts is to try cases. That of appellate courts is to review the records of cases coming from trial courts below. In my judgment it is bad for appellate courts to be compelled to interrupt and delay their pressing appellate duties in order to hear and adjudicate cases which trial courts have been specially created to handle as a part of their daily work.' United States v. Barnett, 376 U.S. 681, 724, 84 S.Ct. 984, 1029, 12 L.Ed.2d 23 (dissenting opinion).
58
Yet the responsibility today imposed upon appellate courts requires them to try cases. This is precisely what is required in determining whether a merger should be restrained during the years required to complete an FTC hearing on the merits.17 Frequently, perhaps generally, to enjoin a merger 'temporarily' is equivalent to entering a final order. The financial and commercial commitments involved in an agreement to acquire or to merge are apt to be so restrictive of the managerial flexibility of the parties, and so dependent upon transient circumstances, that they cannot be maintained in limbo while an FTC proceeding wends its leisurely way toward a wearying conclusion. Because the result of the application for temporary relief may be conclusive for all time, there is a discernible and understandable tendency on the part of the parties to put in a full case.18
59
Few § 7 cases are so simple that summary treatment is appropriate. See, e.g., United States v. Bethlehem Steel Corp., 157 F.Supp. 877, 879 (summary judgment denied), 168 F.Supp. 576 (D.C.S.D.N.Y.1958) (merger enjoined after full factual hearing). The risk involved in deciding an application for 'preliminary' injunction on affidavits is so great that to invite it, as the Court here does, is to invite the administration of justice which is rough and ready, to say the least. On the other hand, to impel the courts of appeals to take testimony in these cases is an anomaly that should not be tolerated.
60
This Court has recognized that there is no quick and easy, short and simple way to resolve the complexities of most antitrust litigation. In White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738, the Court reversed summary judgment for the Government. It held that summary judgment was inappropriate and a trial should be had with respect to the Government's charge of illegal vertical territorial limitations. It specifically relied upon the 'analogy from the merger field that leads us to conclude that a trial should be had.' Id., at 263, 83 S.Ct., at 702. The Court said (per Douglas, J.) that in cases 'involving the question whether a particular merger will tend 'substantially to lessen competition" or whether 'the acquired company was a failing one,' 'a trial rather than the use of the summary judgment is normally necessary.' Id., at 264, 83 S.Ct., at 702. See also United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176, where factual issues paralleling those in the present case were held unsuitable for summary judgment.
61
Similarly, in La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290, this Court refused to permit reference of antitrust cases to a master. It held (per Clark, J.) that 'most litigation in the antitrust field is complex,' and that this is 'an impelling reason for trial before a regular, experienced trial judge' rather than a master. Id., at 259, 77 S.Ct., at 315.
62
By its decision today, however, this Court commands that these admittedly difficult, complex cases be heard and adjudicated by the courts of appeals on original applications for 'temporary' injunctions. I cannot reconcile this result with the facts, with this Court's awareness of the complexity of the task, or with proper regard for the courts of appeals. Apart from the judicial problem which this invention creates, we must recognize that the interposition of the courts, without congressional direction, at the threshold of the administrative process is contrary to the congressional plan and the reiterated holdings of this Court. As the Court said in Arrow Transportation, supra, judicial 'consideration,' prior to final administrative adjudication, 'would create the hazard of forbidden judicial intrusion into the administrative domain.' 372 U.S., at 670, 83 S.Ct., at 990. This Court's insistence upon the 'primary jurisdiction' of administrative agencies illustrates its sensitivity to the point. The Court has even insisted that 'Dismissal of antitrust suits, where an administrative remedy has superseded the judicial one, is the usual course.' Pan American World Airways v. United States, 371 U.S. 296, 313, n. 19, 83 S.Ct. 476, 487, 9 L.Ed.2d 325; see also United States v. Western Pac. r. Co., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126; Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576; United States Nav. Co. v. Cunard S.S. Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408.
63
The present case illustrates the profound difficulties that the Court of Appeals will face in reaching a decision, within the practical limits of its available time and procedures, as to whether it should issue a 'preliminary' injunction. There are here sharp factual disputes concerning the financial status of Bowman and the availability to it of the so-called 'failing company' defense. There is a claim that Dean Foods is about to lose its largest customer and that as a result the merged company will be smaller than Bowman was before the merger. And the bona fides of the 'interested' prospective purchaser uncovered by the Commission's staff is in dispute.
64
The Court of Appeals will have to make a judgment concerning these issues, as well as the other, complex factors that are determinative. It will get little comfort from the label of the relief sought as 'preliminary' because it will know that the patient may die while the 'temporary' anesthesia is in effect. And it will know that, realistically, it has no control over the length of the proceedings—whether the Commission's hearings will last a year or eight years, or something in between. By contrast, when the Department of Justice or a private person seeks a 'preliminary' injunction in a district court, as provided by statute, the proceedings on the merits are in the same court. That court controls the proceedings, and it is admonished by the statute to proceed 'as soon as may be, to the hearing and determination of the case.' 15 U.S.C. § 25. This is an essential admonition, insisted upon by the Congress to mitigate the consequences of preliminary restraints imposed by the district courts upon effectuation of mergers. The courts of appeals will be in the unhappy position of either attempting to supervise Commission proceedings in the predictably vain effort to secure expedition, or accepting the fact that the 'preliminariness' of their order is totally subject to the destructive delays characteristic of Commission procedures. See Kaysen & Turner, Antitrust Policy 248—249 (1959).
65
In effect, today's decision represents radical surgery upon the administration of § 7 of the Clayton Act. This is done contrary to statute, without basis in law or precedent, and is motivated by reasons, which while they may have superficial appeal, are unwise and disruptive. In effect, the Court condones and encourages the Commission to turn aside from its designated function as an expert, administrative agency to become a prosecutor and litigant.
66
When the Commission was established in 1914, it was not intended to duplicate the functions of existing agencies, but rather to bring to bear on the problems of antitrust and unfair competition the 'specialized knowledge and expert judgment, continuity of experience and political independence, flexible procedures and efficient fact-finding methods—(hopefully) characteristic of the administrative process.' Elman, Rulemaking Procedures in the FTC's Enforcement of the Merger Law, 78 Harv.L.Rev. 385, 387 (1964).
67
Every conceivable merger case involves the danger that the merger, unless enjoined, will be effectuated, and the incentive to the Commission to shop among the statutorily available courts of appeals and to seek 'preliminary' injunctions will be great. This, I repeat, is a radical change from the pattern that Congress has ordered, and one which is profoundly undesirable in its effects upon the parties, the courts of appeals, and upon the national interest in a careful assessment of mergers for the purpose of tolerating those which are permissible and liquidating those which violate the national policy expressed in § 7.
68
I would affirm the decision below.
69
APPENDIX TO OPINION OF MR. JUSTICE FORTAS, DISSENTING.
70
The FTC first solicited the assistance of Congress in 1956. In January of that year it submitted to the appropriate committees of the Eighty-fourth Congress a staff study containing various legislative proposals. The study observed that 'A very serious loophole in the Antimerger Act (§ 7) is the lack of a provision which enables the Federal Trade Commission either to take action to prevent mergers prior to consummation or, after consummation, to take action to preserve the status quo until completion of administrative proceedings before the Commission.'1
71
The study informed the committees that in 1955 the FTC had twice sought to secure preliminary injunctions from courts of appeals, but that the courts had found no basis in existing law to authorize such applications.2 In hearings conducted upon proposals of the FTC and others, the Commission through its then chairman, John W. Gwynne, urged Congress to enact legislation which would empower it in § 7 cases to apply to United States District Courts for preliminary relief.3 Chairman Gwynne was pessimistic about the prospects for success under the all-writs statute, noting that it 'is a very general statute and is designed to protect not the jurisdiction of the Federal Trade Commission but the jurisdiction of the circuit court of appeals to which the case might finally get.'4
72
Both Senate and House Judiciary Committees accepted the view, repeatedly stated by spokesmen for the FTC, that it lacked any authority to enjoin or seek a court order to enjoin mergers prior to an FTC adjudication of their illegality, and that this gap in the Commission's arsenal was crippling its efforts to enforce § 7. Both Committees reported out H.R. 9424, which contained an amendment to § 15 of the Clayton Act authorizing the FTC to seek preliminary relief in the United States Districts Courts. S.Rep. No. 2817, 84th Cong., 2d Sess. (1956); H.R.Rep. No. 1889, 84th Cong., 2d Sess. (1956).5 The bill passed the House, but failed of passage in the Senate.
73
Similar legislative proposals have been introduced in subsequent sessions, but always with less success than in 1956. In all of these legislative proceedings, the position of the FTC has been steadfast: consistently, it has insisted that without new legislation it lacks authority to enjoin mergers pending completion of agency action. In March of 1957, FTC Chairman Gwynne informed the appropriate Committees of the decision in Federal Trade Comm'n v. International Paper Co., 241 F.2d 372 (C.A.2d Cir. 1956), that the all-writs statute would not support an FTC application for preliminary relief. To the House Committee he forwarded a copy of the opinion, describing it as '(e)ven more conclusive' than the earlier unreported decisions of the Courts of Appeals for the First and Third Circuits.6 In the Senate, Chairman Gwynne characterized his Commission's application in International Paper as 'something of a forlorn hope.'7 When Senator Kefauver, the Committee Chairman, asked him whether the FTC had sought review of the decision in this Court, Chairman Gwynne answered: 'No we did not. We talked that over. I could not help but agree with the court, frankly. I think the remedy is to amend the law. * * *' The Senator replied, 'I think you are right about it.'8
74
Nor was Gwynne the only FTC spokesman to represent to Congress that legislation was essential if the Commission, like the Department of Justice and private parties, was to be able to maintain the status quo pending determination of a merger's legality. The present chairman, Paul Rand Dixon, who as committee counsel had participated in Senate proceedings on this matter since 1956, informed the Eighty-seventh Congress that 'It is clear that the Commission has no such authority,' citing International Paper.9 Leading Members of Congress10 and key representatives of the Executive Branch11 expressed the same view.
75
A third FTC Chairman, Earl Kintner, explained to the bar rather than directly to Congress, that in 1960 the FTC had intervened as amicus curiae in a private suit to enjoin a merger,12 which suit paralleled a pending Commission inquiry. This was done, he said, because the FTC was '(l)acking any statutory authority to seek a temporary injunction.' Kintner, The Federal Trade Commission in 1960 Apologia Pro Vita Nostra, 1961 Antitrust Law Symposium 21, 38. He noted that the FTC was pressing for legislative authorization, and that until the effort succeeded the FTC would be confined to intervention in occasional private suits and to reliance upon the Justice Department 'where a temporary restraining order is peculiarly appropriate.' Id. at 41.13
1
Since consummation of the merger all assets of Bowman, with the exception of cash and marketable securities which were exempted from the purchase agreement, have been transferred to Dean. Bowman has ceased dairy operations and now acts as an investment fund, having received and invested the proceeds of the sale.
2
The Federal Trade Commission alleged:
'(a) Actual or potential competition in the sale and distribution of packaged milk in the Chicago Area will be eliminated or prevented;
'(b) Dean, a major competitive factor in the sale and distribution of packaged milk in the Chicago Area, will eliminate Bowman, another major competitive factor in the sale and distribution of packaged milk in the Chicago Area;
'(c) Concentration in the sale and distribution of packaged milk in the Chicago Area will be increased and deconcentration will be prevented;
'(d) The restraining influence on non-competitive behavior in the sale and distribution of packaged milk in the Chicago Area, which existed by reason of the independent operation of Bowman, will be eliminated;
'(e) The acquisition will contribute to the over-all trend toward concentration in the sale and distribution of packaged milk in the United States * * * thereby tending to bring about the adverse competitive effects described (elsewhere in the complaint);
'(f) The emergence or growth of smaller packaged milk companies in the Chicago Area will be retarded, discouraged or prevented;
'(g) The members of the consuming public, in the Chicago Area and throughout the United States, will be denied the benefits of the free and open competition n the sale and distribution of packaged milk.'
3
Of course, the courts of appeals have traditionally framed § 1651(a) writs in the form of compulsory injunctions aimed at private parties. E.g., Application of President & Directors of Georgetown College, 118 U.S.App.D.C. 80, 331 F.2d 1000, cert. denied, Jones v. President & Directors of Georgetown College, 377 U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964). See Recent Cases, 77 Harv.L.Rev. 1539, 1542 (1964).
4
For the proposition that the Commission must have express statutory authority to seek injunctions in the courts of appeals two cases are cited. The first, Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), has no relevance to our problem. And the other, Federal Trade Comm'n v. Eastman Kodak Co., 274 U.S. 619, 623—625, 47 S.Ct. 688, 689—690, 71 L.Ed. 1238 (1927), even though apposite, has been repudiated. It held that in fashioning a final decree the Commission 'exercises only the administrative functions delegated to it by the Act,' and, therefore, could not order divestiture of laboratories acquired through a stock purchase. This view was rejected in Pan American World Airways, Inc. v. United States, 371 U.S. 296, 312—313, nn. 17—18, 83 S.Ct. 476, 486, 9 L.Ed.2d 325 (1963), the Court holding that 'the power to order divestiture need not be explicitly included in the powers of an administrative agency to be part of its arsenal of authority,' citing Gilbertville Trucking Co. v. United States, 371 U.S. 115, 83 S.Ct. 217, 9 L.Ed.2d 177 (1962).
5
Such a holding would especially interfere with the functions Congress has given the Commission in the merger field. As THE CHIEF JUSTICE stated in Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962), the Congress 'sought to assure the Federal Trade Commission and the courts the power to brake this force (business concentration) at its outset and before it gathered momentum.' At 317—318, 82 S.Ct. at 1520. But without standing to secure injunctive relief, and thereby safeguard its ability to order an effective divestiture of acquired properties, the Commission's efforts would be frustrated. As MR. JUSTICE DOUGLAS said in United States v. Cresent Amusement Co., 323 U.S. 173, 185. 65 S.Ct. 254, 261, 89 L.Ed. 160 (1944):
'The acquisition of a competing theatre terminates at once its competition. * * * And where businesses have been merged or purchased and closed out it is commonly impossible to turn back the clock.'
Here the plan of merger itself contemplates the sale of the acquired home delivery milk routes and certain milk plants. In addition, Bowman has retained its cash and securities, with the intention ultimately to distribute them to its stockholders. If consummation of the merger is not restrained, the restoration of Bowman as an effective and viable competitor will obviously by impossible by the time a final order is entered. This is not unusual. Administrative experience shows that the Commission's inability to unscramble merged assets frequently prevents entry of an effective order of divestiture. E.g., Ekco Products Co., Trade Reg.Rep. 16,879 (1964) (1963—1965 Transfer Binder), aff'd, Ekco Products Co. v. F.T.C., 347 F.2d 745 (C.A.7th Cir. 1965); Foremost Dairies, Inc., 60 F.T.C. 944, order modified per stipulation (C.A.5th Cir. 1965) (Docket No. 18,815).
6
Cf. Public Utilities Comm'n of Dist. of Col. v. Capital Transit Co., 94 U.S.App.D.C. 140, 214 F.2d 242, 245 (1954), where the Court of Appeals for the District of Columbia Circuit gave as one of its reasons for granting an injunction the fact that 'the moving party in the litigation was the Public Utilities Commission of the District of Columbia, a governmental agency clothed by Congress with special responsibility in the matters involved.'
7
E.g., H.R. 9424 and S. 3341 and 3424, 84th Cong., 2d Sess. (1956); H.R. 49 and 1574, 89th Cong., 1st Sess. (1965).
8
Hearings before the Antitrust Subcommittee of the House Committee on the Judiciary, 84th Cong., 2d Sess., ser. No. 15, p. 35 (1956); Hearings before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary on S. 198, S. 721, S. 722 and S. 3479, 85th Cong., 2d Sess., 42—45 (1958) (testimony of Chairman Gwynne). Hearings before the Antitrust Subcommittee of the House Committee on the Judiciary, 87th Cong., 1st Sess., ser. No. 5, pp. 85—86 (1961) (testimony of Chairman Dixon).
9
They also directed attention to the denial of injunctive relief in Federal Trade Comm'n v. Farm Journal, Inc. (C.A.3d Cir. 1955) (unreported). Both men failed to mention the contrary decision in Board of Governors of Federal Reserve System v. Transamerica Corp., 184 F.2d 311 (C.A.9th Cir.), cert. denied, 340 U.S. 883, 71 S.Ct. 197, 95 L.Ed. 641 (1950). In Ekco Products Co., Trade Reg.Rep. 16,879 (1964) (1963—1965 Transfer Binder), aff'd, 347 F.2d 745 (C.A.7th Cir. 1965), Commissionr Elman stated that the question of the Commission's ability to obtain a preliminary injunction under the All Writs Act 'has not been authoritatively answered.' At 21,905, n. 10.
10
Hearings before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary on S. 198, S. 721, S. 722 and S. 3479, 85th Cong., 2d Sess., 156—157 (1958) (testimony of Congressman Celler). Hearings before the Antitrust Subcommittee of the House Committee on the Judiciary, 87th Cong., 1st Sess., ser. No. 5, pp. 42—45 (1961) (statement of Congressman Patman).
11
Cf. Helvering v. Hallock, 309 U.S. 106, 120, 60 S.Ct. 444, 451, 84 L.Ed. 604 (1940), where it was said that to give weight to the nonaction of Congress was to 'venture into speculative unrealities.'
12
Cf. United States v. Philadelphia Nat. Bank, 374 U.S. 321, 348—349, 83 S.Ct. 1715, 1733—1734, 10 L.Ed.2d 915 (1963).
1
See Federal Trade Comm'n v. International Paper Co., 241 F.2d 372 (C.A.2d Cir. 1956); Federal Trade Comm'n v. Farm Journal, Inc. (C.A.3d Cir. 1955). In In the Matter of A. G. Spalding & Bros., Inc. (F.T.C. Docket No. 6478), the Commission failed to obtain preliminary relief in the First Circuit, but did get respondent's commitment not to alter the status quo save on 30 days' notice. See A. G. Spalding & Bros., Inc. v. F.T.C., 301 F.2d 585 (C.,.a.3d Cir. 1962).
The sole instance where injunctive relief was obtained is Board of Governors of Federal Reserve System v. Transamerica Corp., 184 F.2d 311 (C.A.9th Cir. 1950), cert. denied, 340 U.S. 883, 71 S.Ct. 197, 95 L.Ed. 641. In Transamerica the threatened action would have defeated the Board's jurisdiction entirely. The Board (whose role in § 7 enforcement is like the FTC's) argued both in the Court of Appeals and in opposition to the petition for certiorari, that if Transamerica were not restrained from disposing of stock holdings the legality of whose acquisition was in issue in the administrative proceedings, the effect under the pre-1950 version of § 7, as construed by this Court in Arrow-Hart & Hegeman Electric Co. v. F.T.C., 291 U.S. 587, 54 S.Ct. 532, 78 L.Ed. 1007, would be to 'oust the Board of its jurisdiction under Section 11 of the Clayton Act * * * (and to) defeat the exclusive jurisdiction of the Court of Appeals to enforce or affirm such order as the Board might make * * *.' Government's Brief in Opposition in Transamerica Corp. v. Board of Governors (Nos. 322 and 323, October Term, 1950), at pp. 5, 8—9, 15. See also United States v. Philadelphia Nat. Bank, 374 U.S. 321, 339, n. 17, 83 S.Ct. 1715, 1728, 10 L.Ed.2d 915 where Transamerica appears to have been distinguished from International Paper, supra, precisely on the ground that the writ there was necessary to protect the 'jurisdiction' both of the agency and of the Court of Appeals—a conventional use of the All Writs Act.
2
On the contrary, the common view is that such authority is entirely lacking. See, e.g., Kaysen & Turner, Antitrust Policy 258 (1959); Duke, Scope of Relief Under Section 7 of the Clayton Act, 63 Col.L.Rev. 1192, 1206, n. 85 (1963); Note, 79 Harv.L.Rev. 391, 404 (1965); Note, 40 N.Y.U.L.Rev. 771 (1965); Comment, 32 N.Y.U.L.Rev. 1297 (1957).
3
The Court's opinion asserts, in alleged demonstration of the 'ancillary powers' which have been inferred on the Commission's behalf, that it may bring 'contempt actions in the appropriate court of appeals when the court's enforcement orders were violated, though it has no statutory authority in this respect.' The Court errs. The Commission's powers in this respect are not 'implied.' The machinery by which the Commission procures compliance with its orders is, and always has been, spelled out by statute. Until 1959, one could with impunity violate an FTC Clayton Act order. Such an order was not final until the respondent sought judicial review and a Court of Appeals granted enforcement. Disobedience thereafter was a contempt of court. In the event the respondent did not seek review, the Commission was required to ascertain that he was violating its order and then proceed, pursuant to express statutory provision (15 U.S.C. § 21), to seek enforcement in the courts of appeals. See 28 U.S.C. § 2112 (1964 ed.), authorizing the Courts of Appeals to promulgate rules for enforcement proceedings; and see, e.g., 1st Cir. R. 16. Cf. Fed.Rule Civ.Proc. 70. A violation thereafter constituted contempt of court. The courts declined to infer any more convenient substitute for this three-step process. See Federal Trade Comm'n v. Henry Broch & Co., 368 U.S. 360, 365, 82 S.Ct. 431, 434, 7 L.Ed.2d 353; Federal Trade Comm'n v. Ruberoid Co., 343 U.S. 470, 477—479, 72 S.Ct. 800, 805—806, 96 L.Ed. 1081.
The statute was amended in 1959. An FTC order under the Clayton Act is now final upon expiration of the time allowed respondent to seek judicial review. If he does not appeal the order and violates its terms after it becomes final the Government may proceed, pursuant to statute (15 U.S.C. § 21(g) and (l)), to seek civil penalties of up to $5,000 per violation.
In short, and contrary to the suggestion in the Court's opinion, the Commission's power to enforce compliance with its orders is and has been wholly statutory. Nothing has been left to implication.
4
See 51 Cong.Rec.1963, 13047, 8977 (1914); Rublee, The Original Plan and Early History of the Federal Trade Commission, 11 Acad.Pol.Sci.Proc. 666 (1925).
5
Where Congress has determined that it is appropriate for the Commission to seek threshold relief in order to protect the public, it has expressly so provided—directing that the Commission proceed in an appropriate tribunal, the United States District Courts. See § 13(a) of the Federal Trade Commission Act (Wheeler-Lea amendments), 15 U.S.C. § 53(a) (1964 ed.); § 302 of the Food, Drug, and Cosmetic Act, 21 U.S.C. § 332 (1964 ed.); § 7(b) of the Wool Products Labeling Act, 15 U.S.C. § 68e(b) (1964 ed.); § 9(b) of the Fur Products Labeling Act, 15 U.S.C. § 69g(b) (1964 ed.); § 6(a) of the Flammable Fabrics Act, 15 U.S.C. § 1195(a) (1964 ed.); and § 8 of the Textile Fiber Products Identification Act, 15 U.S.C. § 70f (1964 ed.).
6
See Elman, Rulemaking Procedures in the FTC's Enforcement of the Merger Law, 78 Harv.L.Rev. 385, 387—388 (1964).
7
The Court declares that these materials are irrelevant because Congress had before it proposals to authorize the Commission itself to issue restraining orders pendente lite or to apply to the district courts for such relief. But the fact that no one proposed and Congress did not consider providing that the Commission might have recourse to the courts of appeals merely emphasizes the extreme and extraordinary nature of the device which the Court today creates. The plain fact, and the short answer, is that Congress refused to authorize preliminary restraints at the command of the Commission. Its refusal to authorize such relief in the district courts demonstrates, a fortiori, that it would not create such a remedy in the courts of appeals.
The Court also suggests that it would be improper to draw conclusions from congressional inaction. The inference that I draw from congressional refusal to make preliminary injunctive relief available to the FTC is that such inaction confirms (a) that Congress in devising the statutory plan did not intend the Commission to have such power, and (b) that the relief sought is not consonant with the congressional plan for administering § 7. In fact, this is not a situation where the agency went to Congress in the belief that its authority was unclear, or to remove doubts concerning it. Compare United States v. Speers, 382 U.S. 266, 274 275, 86 S.Ct. 411, 416—417, 15 L.Ed.2d 314; United States v. E. I. Du Pont De Nemours & Co., 353 U.S. 586, 590, 77 S.Ct. 872, 875, 1 L.Ed.2d 1057; Wong Yang Sung v. McGrath, 339 U.S. 33, 47—48, 70 S.Ct. 445, 452—453, 94 L.Ed. 616. Here, there is no doubt that the agency sought additional powers, not clarification. It admitted—it asserted—that it had no present authority to obtain preliminary relief (see Appendix to this opinion). It sought what it confessedly did not have. It sought this not once, but repeatedly, over a period of 10 years. Congress did not grant its request. Nor should we. See Fribourg Navig. Co. v. Commissioner of Internal Revenue, 383 U.S. 272, 279—286, 86 S.Ct. 862, 866—870, 15 L.Ed.2d 751; Blau v. Lehman, 368 U.S. 403, 412—413, 82 S.Ct. 451, 456—457, 7 L.Ed.2d 403.
8
Spokesmen for the FTC have frequently acknowledged the availability of such a course. See, e.g., Hearings before the Antitrust Subcommittee of the House Committee on the Judiciary, 87th Cong., 1st Sess., ser. No. 5, pp. 101—102 (testimony of Paul Rand Dixon) (1961); Kintner, The Federal Trade Commission in 1960 Apologia Pro Vita Nostra, 1961 Antitrust Law Symposium 21, 41.
The Commission also has on occasion successfully employed the technique of obtaining an agreement of the parties to segregate assets so as to facilitate divestiture should it be decreed. See, e.g., A. G. Spalding & Bros., Inc. v. F.T.C., 301 F.2d 585, 588 (C.A.2d Cir. 1962).
9
For example, in some situations the merger of relatively small competitors may result in creation of an enterprise capable of meaningful competition with a company otherwise in unchallenged domination of an industry. See Brown Shoe Co. v. United States, 370 U.S. 294, 319, 82 S.Ct. 1502, 1521, 8 L.Ed.2d 510, and legislative materials therein cited.
10
See Kaysen & Turner, Antitrust Policy 248 (1959); Note, 40 N.Y.U.L.Rev. 771, 772, n. 7 (1965), and cases cited therein.
11
See note 3, supra.
12
Indeed, there is no certainty that the particular court of appeals selected by the FTC on its application for preliminary relief will ever undertake to review an ultimate cease-and-desist order. Section 11(c) of the Clayton Act, 15 U.S.C. § 21(c), provides that a person against whom such an order is entered may appeal 'in the court of appeals * * * for any circuit within which such violation occurred or within which such person resides or carries on business.' In the present case, review of any final FTC order might lie not in the Court of Appeals for the Seventh Circuit, but in the Sixth or Eighth Circuit where both Dean and Bowman carry on business. See Transamerica Corp. v. Board of Governors, 206 F.2d 163 (C.A.3d Cir. 1953), cert. denied, 346 U.S. 901, 74 S.Ct. 225, 98 L.Ed. 401, setting aside an injunction issued by the Ninth Circuit; A. G. Spalding & Bros., Inc. v. F.T.C., 301 F.2d 585 (C.A.3d Cir. 1962), enforcing an FTC order as to which an injunction unsuccessfully had been sought in the First Circuit seven years earlier.
13
Ex parte Crane, 5 Pet. 190, 193, 8 L.Ed. 92; Ex parte Bradstreet, 7 Pet. 634, 8 L.Ed. 810; McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762. From its excerpt from McClellan, the Court omits the italicized portion: '(A) writ of mandamus may issue in aid of the appellate jurisdiction which might otherwise be defeated by the unauthorized action of the court below.' 217 U.S., at 280, 30 S.Ct., at 504.
14
Compare United States v. Aluminum Co. of America, 247 F.Supp. 308, 316 (D.C.E.D.Mo.1965), aff'd, 382 U.S. 12, 86 S.Ct. 24, 15 L.Ed.2d 1, with Reynolds Metals Co. v. F.T.C., 114 U.S.App.D.C. 2, 309 F.2d 223 (1962). See Duke, op. cit. supra, note 2.
15
The Court's opinion today eschews the result in Arrow Transportation and fastens instead on footnote 22, 372 U.S., at 671, 83 S.Ct., at 991, which merely reserves judgment as to 'decisions which have recognized a limited judicial power to preserve the court's jurisdiction or maintain the status quo by injunction pending review of an agency's action through the prescribed statutory channels. * * *' The footnote adds that '(s)uch power has been deemed merely incidental to the courts' jurisdiction to review final agency action, and has never been recognized in derogation of such a clear congressional purpose to oust judicial power as that manifested in the Interstate Commerce Act.' (Emphasis supplied.) The cases cited demonstrate the conventional use of the extraordinary writs referred to in the footnote. In Scripps-Howard Radio, Inc. v. F.C.C., 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229, a stay was issued ancillary to an appeal already taken pursuant to statute. Its purpose was to suspend, pending action by the court in which the appeal was lodged, changes authorized by completed agency action. For the thoroughly conventional nature of Transamerica, also cited in the footnote, see note 1, supra.
16
Continental Ill. Nat. Bank & Trust Co. of Chicago v. Chicago, R.I. & P.R. Co., 294 U.S. 648, 675, 55 S.Ct. 595, 605, 79 L.Ed. 1110, cited by the Court in connection with its assertion that courts have power to preserve the status quo while administrative proceedings are in progress, relates instead to the power of a bankruptcy court to enjoin the sale of collateral pledged by a debtor.
17
The Commission's estimate in the present case that its proceedings would endure for at least one year seems unprecedentedly optimistic. In A. G. Spalding & Bros., Inc. v. F.T.C., 301 F.2d 585 (C.A.3d Cir. 1962), where the FTC unsuccessfully sought an injunction pendente lite, more than seven years elapsed between complaint and enforcement. Pillsbury Mills, Inc. (FTC Docket No. 6000) was in the Commission for eight and one-half years; Crown Zellerbach Corp. v. F.T.C., 296 F.2d 800 (C.A.9th Cir. 1961), for nearly four years, and it was another four years before the Commission's order was affirmed. These delays were not unknown to Congress. See Hearings before the Antitrust Subcommittee of the House Committee on the Judiciary, 87th Cong., 1st Sess., ser. No. 5, p. 86 (1961).
18
See United States v. Ingersoll-Rand Co., 218 F.Supp. 530 (D.C.W.D.Pa.), aff'd, 320 F.2d 509 (C.A.3d Cir. 1963), where the hearing on an application for preliminary relief took five days. See also United States v. FMC Corp., 218 F.Supp. 817 (D.C.N.D.Cal.), appeal dismissed 321 F.2d 534 (C.A.9th Cir.), application for preliminary injunction denied, 84 S.Ct. 4, 11 L.Ed.2d 20 (1963) (Goldberg, J., in chambers).
1
Hearings before the Antitrust Subcommittee of the House Committee on the Judiciary, 84th Cong., 2d Sess., ser. No. 15, p. 29 (1956).
2
The cases referred to were Federal Trade Comm'n v. Farm Journal, Inc. (C.A.3d Cir. 1955) (unreported); and In the Matter of A. G. Spalding & Bros., Inc. (C.A.1st Cir. 1955) (unreported). They are discussed in H.R.Rep.No.486, 85th Cong., 1st Sess., 8—9 (1957); Hearings before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary on S. 198, S. 721, S. 722 and S. 3479, 85th Cong., 2d Sess., 42—45 (testimony of FTC Chairman Gwynne), 156—157 (testimony of Congressman Celler) (1958).
3
The FTC proposed that § 11 of the Clayton Act be amended to read: 'Whenever the Federal Trade Commission has reason to believe—
'(1) That any corporation is acquiring, has acquired or is about to acquire the stock or assets of another corporation in violation of the provisions of section 7 of this Act, and
'(2) That the enjoining thereof pending the issuance of a complaint by the Commission under this section and until such complaint is dismissed by the Commission or set aside by the court on review, would be to the interest of the public, 'the Commission * * * may bring suit in a district court of the United States * * * to prevent and restrain violation of section 7 of this Act. Upon proper showing a temporary injunction or restraining order shall be granted without bond. * * *' Hearings, supra, note 1, at 29—30.
4
Id., at 35.
5
H.R. 9424, although worded in greater detail, was in substance like the FTC proposal.
6
Letter to Chairman Celler, in Hearings before the Antitrust Subcommittee of the Hease Committee on the Judiciary, 85th Cong., 1st Sess., ser. No. 2, p. 103 (1957).
7
Hearing, supra, note 2, at 45.
8
Ibid.
9
Hearings before the Antitrust Subcommittee of the House Committee on the Judiciary, 87th Cong., 1st Sess., ser. No. 5, pp. 87, 107 (1961). It was in this session that the FTC abandoned its prior advocacy of proposals that it seek relief in the district courts, urging instead that it be given power to issue its own injunctions and restraining orders. Id., at 88, 91. Compare testimony of FTC Chairman Gwynne, Hearings, supra, note 2, at 49 59.
10
See, e.g., statement of Congressman Celler, Hearings, supra, note 2, at 156—160; statement of Congressman Patman, Hearings, supra, note 9, at 45; statement of Senator Kefauver, id., at 46.
11
E.g., The President's Economic Report, submitted to Congress on January 23, 1957, p. 51; Letter from Attorney General Kennedy, May 2, 1961, in Hearings, supra, note 9, at 58.
12
Briggs Mfg. Co. v. Crane Co., 185 F.Supp. 177 (D.C.E.D.Mich.), aff'd, 280 F.2d 747 (C.A.6th Cir. 1960).
13
FTC Chairman Dixon utilized the same forum the following year to plead for legislation which would authorize the Commission to issue its own temporary relief. See Dixon, The Federal Trade Commission in 1961, 1962 Antitrust Law Symposium 16, 19—21.
| 78
|
384 U.S. 702
86 S.Ct. 1689
16 L.Ed.2d 870
John T. GOJACK, Petitioner,v.UNITED STATES.
No. 594.
Argued April 21, 1966.
Decided June 13, 1966.
Frank J. Donner, New York City, for petitioner.
J. Walter Yeagley, Washington, D.C., for respondent.
Mr. Justice FORTAS delivered the opinion of the Court.
1
This case is a sequel to this Court's decision in Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240, and companion cases. One of those cases related to the same person who is petitioner here and to the same events.
2
Petitioner appeared before a Subcommittee of the House Committee on Un-American Activities on February 28 and March 1, 1955. He answered certain questions, but refused to answer others concerning his affiliation with the Communist Party, the affiliation of others, and his connection with a 'Peace Crusade.' He had challenged the jurisdiction of the Committee and the Subcommittee, the authorization of each, and the constitutionality of the inquiry in general and with specific reference to the questions which he declined to answer.1 He did not and does not invoke the Fifth Amendment.
3
He was indicted for contempt of Congress under Rev.Stat. § 102, as amended, 52 Stat. 942, 2 U.S.C. § 192 (1964 ed.)2 (hereafter, § 192) as a result of his refusals to answer. He was convicted. In Russell v. United States, supra, this Court reversed, holding that the indictment was defective because it did not allege the 'subject under inquiry.' The Court noted that under § 192 specification of the subject of the inquiry is fundamental to a charge of violating its provisions. Absent an allegation of the subject matter of the inquiry, this Court held, there is no way in which it can be determined whether the factual recitals of the indictment charged a crime under § 192—that is, a refusal to answer questions 'pertinent to the inquiry,' and within the legislative competence of Congress.3
4
Petitioner was thereafter re-indicted. The deficiency in the first indictment was sought to be cured by a recital that '(t)he subject of these hearings was Communist Party activities within the field of labor * * *.' Petitioner was again convicted and given a general sentence of three months' imprisonment and a $200 fine. The Court of Appeals for the District of Columbia Circuit affirmed per curiam. 121 U.S.App.D.C. 126, 348 F.2d 355 (1965). We granted certiorari. 382 U.S. 937, 86 S.Ct. 398, 15 L.Ed.2d 348. We reverse. It is now clear that the fault in these proceedings is more fundamental than the omission from the indictment of an allegation of the 'subject of the inquiry' being conducted by the Subcommittee. The subject of the inquiry was never specified or authorized by the Committee, as required by its own rules, nor was there a lawful delegation of authority to the Subcommittee to conduct the investigation.
5
Petitioner here urges that we reconsider this Court's decision in Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115. In Barenblatt this Court upheld the authority of the Committee to investigate Communist infiltration into the field of education. In the circumstances of that case, the Court sustained the constitutionality of the investigation and of the Committee's inquiry into petitioner's alleged membership in the Communist Party. Since we decide the present case on other grounds, it is not necessary nor would it be appropriate to reach the constitutional question.
I.
6
Rule I of the Rules of Procedure of the House Committee on Un-American Activities provides that 'No major investigation shall be initiated without approval of a majority of the Committee.' Rule XI, par. 26, of the Rules of the House of Representatives requires each Committee of the House to keep a record of all committee actions. There is no resolution, minute or record of the Committee authorizing the inquiry with which we are concerned.
7
The Solicitor General's brief in this Court states that: 'Admittedly, there is no direct evidence that the Committee approved the investigation of Communist activities in the field of labor of which the hearings at which petitioner was called to testify were a part.' A footnote to this statement concedes that 'We do not dispute that this investigation was a 'major' one and that approval by a majority of the Committee was therefore required.'
8
The Government's only plea in avoidance of this obvious deficiency is that we should 'infer' Committee approval of the inquiry at which petitioner was required to respond to questions, because it was part of the Committee's alleged 'continuing investigation' of Communist activities in the labor field.4 But this is clearly impermissible. We are not here dealing with the justification for an investigation by a committee of the Congress as a matter of congressional administration. That is a legislative matter. We are here concerned with a criminal proceeding. It is clear as a matter of law that the usual standards of the criminal law must be observed, including proper allegation and proof of all the essential elements of the offense.5 Moreover, the Congress, in enacting § 192, specifically indicated that it relied upon the courts to apply the exacting standards of criminal jurisprudence to charges of contempt of Congress in order to assure that the congressional investigative power, when enforced by penal sanctions, would not be abused.6
9
It can hardly be disputed that a specific, properly authorized subject of inquiry is an essential element of the offense under § 192. In Russell, this Court held that the definition of the subject under inquiry is 'the basic preliminary question which the federal courts * * * (would) have to decide in determining whether a criminal offense had been alleged or proved.' 'Our decisions have pointed out that the obvious first step in determining whether the questions asked were pertinent to the subject under inquiry is to ascertain what that subject was.' 369 U.S., at 756—757, 758—759, 82 S.Ct., at 1043—1044. See also Wilkinson v. United States, 365 U.S. 399, 407—409, 81 S.Ct. 567, 572—573; Deutch v. United States, 367 U.S. 456, 467—469, 81 S.Ct. 1587, 1593—1594, 6 L.Ed.2d 693; Watkins v. United States, 354 U.S. 178, 208—215, 77 S.Ct. 1173, 1189—1193; Sinclair v. United States, 279 U.S. 263, 295—296, 49 S.Ct. 268, 272—273. In United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770, Mr. Justice Frankfurter observed that the resolution defining the subject of a committee's inquiry is the committee's 'controlling charter' and delimits its 'right to exact testimony.' 345 U.S., at 44, 73 S.Ct., at 545. Cf. Sinclair v. United States, 279 U.S. 263, 295 298, 49 S.Ct. 268, 272—273. This Court made it clear in Watkins v. United States, 354 U.S. 178, 201, 206, 77 S.Ct. 1173, 1186, 1189, that pertinency is a 'jurisdictional concept' and it must be determined by reference to the authorizing resolution of an investigation. The House Committee on Un-American Activities has itself recognized the fundamental importance of specific authorization by providing in its Rule I that a major inquiry must be initiated by vote of a majority of the Committee. When a committee rule relates to a matter of such importance, it must be strictly observed. Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778. Since the present inquiry is concededly part of a 'major investigation' and the Committee did not authorize it as required by its own Rule I, this prosecution must fail. There is no basis for invoking criminal sanctions to punish a witness for refusal to cooperate in an inquiry which was never properly authorized.
10
Indeed, the present case illustrates the wisdom of the Committee's Rule requiring specific authorization of a major investigation. Here, in the absence of official authorization of a specific inquiry, statements were made as to the subject and purpose of the inquiry which, to say the least, might have caused confusion as to the subject of the investigation, and might well have inspired respectable doubts as to legal validity of the Committee's purposes.7 A brief recapitulation of the relevant facts will demonstrate this:
11
1. On November 19, 1954, about a month and a half before appointment of the Subcommittee, the Chairman of the Committee was reported as having announced that 'large public hearings in industrial communities' would be held to expose active Communists as part of 'a new plan for driving Reds out of important industries.'8
12
2. On February 14, when a representative of petitioner's union appeared to request a postponement, the Chairman of the Committee stated that all of us are interested in seeing your union go out of business.' A similar statement by the Chairman of the Subcommittee was reported in the press on February 15.
13
3. On February 21, the record shows that a newspaper in St. Joseph, Michigan, reported a statement of the Committee Chairman that the hearing would expose petitioner and another subpoenaed witness as 'card carrying Communists' and that 'The rest is up to the community.' The story noted that the rescheduled hearing would precede by three days a representation election, involving the union, at St. Joseph.
14
4. Near the close of the testimony of the first witness at the hearing, the Chairman and other members of the Subcommittee disavowed any effort 'to break or bust unions,' but added that the Committee's purpose was to expose and break up Communist control of unions.
15
5. At one point in the hearing, the member of the Subcommittee who was then presiding stated that the purpose of the hearing was to consider testimony relating to Communist Party activities within the field of labor, but went on to refer to other purposes. He said that the hearing would also consider 'the circumstances under which members of the Communist Party in the United States were recruited for military service in the Spanish Civil War, and to ascertain the method used by the Communist Party in securing assistance from the medical profession in carrying out its objectives.'
16
We do not characterize these statements or appraise their legal effect. They are relevant here only to demonstrate the insuperable hurdle of 'inferring,' as the Government suggests, the authorization of the inquiry in the absence of a specific statement and the particularized authorization required by the Committee's own rules. Obviously, some of the statements made as to the Committee's purposes exceed the bounds which would be enforced by criminal sanctions,9 and others do not correspond to the allegation in the second indictment that the subject of the inquiry was 'Communist Party activities within the field of labor.'
17
It should be noted that Rule I of the Committee has a special significance in the case of the House Un-American Activities Committee. The Committee is a standing committee of the House, not a special committee with a specific, narrow mandate. Its charter is phrased in exceedingly broad language. It is authorized to make investigations of un-American and subversive 'propaganda' and 'propaganda activities' and 'all other questions in relation thereto that would aid Congress in any necessary remedial legislation.' To support criminal prosecution under § 192, this generality must be refined as Rule I contemplated. Otherwise, it is not possible for witnesses to judge the appropriateness of questions addressed to them, or for the Committee, the Congress, or the courts to make the essential judgment which § 192 requires: whether the accused person has refused 'to answer any question pertinent to the question under inquiry.'10
18
It now appears that the investigation and the 'question under inquiry' in petitioner's case were neither properly authorized nor specifically stated. Nor was the purpose of the inquiry clearly understood, apparently, even by the members of the Subcommittee themselves. Although at the outset of the hearings the Subcommittee Chairman did allude to 'Communist Party activities within the field of labor' as the subject-matter under investigation, statements and declarations of Committee members were at variance with this purported purpose. The recital in the second and revised indictment that it was 'Communist Party activities within the field of labor' was therefore based on quicksand. Obviously, this Court's decision in Russell cannot be satisfied by a mere statement in the indictment, having no underpinning in an authorizing resolution, that the recited subject was in fact the subject of the inquiry. Russell called for more than a draftsman's exercise.
II.
19
There is in this case another fatal defect. The hearings in which petitioner was called to testify were before a Subcommittee of the House Committee on Un-American Activities. Pursuant to Committee authorization, the Chairman on February 9, 1955, appointed a Subcommittee of three members to conduct hearings at which three named witnesses, including petitioner, were to be called. Neither the resolution nor any minutes or other records of the Committee stated the subject matter committed to the Subcommittee or otherwise described or defined its jurisdiction in terms of subject matter.11 Once again, we emphasize that we express no view as to the appropriateness of this procedure as a method of conducting congressional business. But, once again, we emphasize that we must consider this procedure from the viewpoint not of the legislative process, but of the administration of criminal justice, and specifically the application of the criminal statute which has been invoked.
20
Viewed in this perspective, the problem admits of only one answer. Courts administering the criminal law cannot apply sanctions for violation of the mandate of an agency—here, the Subcommittee—unless that agency's authority is clear and has been conferred in accordance with law.
21
We do not question the authority of the Committee appropriately to delegate functions to a subcommittee of its members, nor do we doubt the availability of § 192 for punishment of contempt before such a subcommittee in proper cases. But here, not only did the Committee fail to authorize its own investigation, but also it failed to specify the subject of inquiry that the Subcommittee was to undertake. The criminal law cannot be used to implement jurisdiction so obtained, without metes and bounds, without statement or description of the subject committed to the Subcommittee. United States v. Seeger, 303 F.2d 478 (C.A.2d Cir. 1962). Cf. United States v. Lamont, 18 F.R.D. 27 (D.C.S.D.N.Y.1955), aff'd, 236 F.2d 312 (C.A.2d Cir. 1956). In Seeger, a contempt conviction had been obtained for refusal to answer questions of a subcommittee. The resolution establishing the Subcommittee, like that in the present case, announced the date for the hearing and stated the Subcommittee's members, but stated no subject matter. As Judge Moore, concurring, put it:
22
'Even the most liberal construction cannot transform * * * (this) into a resolution of the Committee vesting its authority in a subcommittee * * *.' 303 F.2d, at 487.
23
See also United States v. Kamin, 136 F.Supp. 791 (D.C.D.Mass.1956).
24
We need not consider whether the Committee, by express resolution, might have delegated all of its authority to the Subcommittee. It did not attempt this, nor did it otherwise specify the subject matter as to which the Subcommittee was authorized to act.12 Accordingly, even if we were able to establish proper authorization by the Committee itself pursuant to Rule I to conduct the inquiry at which the questions were asked which petitioner refused to answer, this prosecution would fail. The jurisdiction of the courts cannot be invoked to impose criminal sanctions in aid of a roving commission. The subject of the inquiry of the specific body before which the alleged contempt occurred must be clear and certain. As Chief Judge Clark stated in United States v. Lamont, supra, 236 F.2d at 315, it is necessary to '(link) the inquiry conducted by the subcommittee to the grant of authority dispensed to its parent committee.' Reference to § 192 emphasizes the importance of this requirement. The statute requires that a witness, to be found guilty of contempt, must have 'been summoned as a witness by the authority of either House of Congress, to give testimony * * * upon any matter under inquiry before either House * * *.' The authority being exercised is that of the House of Representatives. See Watkins, 354 U.S., at 200—205, 77 S.Ct., at 1185—1188. It is the investigatory power of the House that is vindicated by § 192. The legislative history of § 192 makes plain that a clear chain of authority from the House to the questioning body is an essential element of the offense.13 If the contempt occurs before a subcommittee, the line of authority from the House to the Committee and then to the subcommittee must plainly and explicitly appear, and it must appear in terms of a delegation with respect to a particular, specific subject matter. As Judge Weinfeld stated in United States v. Lamont, supra, 18 F.R.D. at 32,
25
'No committee of either the House or Senate, and no Senator and no Representative, is free on its or his own to conduct investigations unless authorized. Thus it must appear that Congress empowered the Committee to act, and further that at the time the witness allegedly defied its authority the Committee was acting within the power granted to it.'
26
Absent proof of a clear delegation to the subcommittee of authority to conduct an inquiry into a designated subject, the subcommittee was without authority which can be vindicated by criminal sanctions under § 192, nor was there an authoritative specification of the 'subject matter of the inquiry' necessary for the determination of pertinency required by the section.
27
For the foregoing reasons, the judgment below is
28
Reversed.
29
While concurring in the Court's judgment and opinion, Mr. Justice BLACK would prefer to reverse the judgment by holding that the House Un-American Activities Committee's inquiries here amounted to an unconstitutional encroachment on the judicial power for reasons stated in his dissent in Barenblatt v. United States, 360 U.S. 109, 135, 79 S.Ct. 1081, 1097.
1
At the outset of the hearings, petitioner's counsel filed a motion which asked that the subpoenas be vacated and the hearings 'set aside' on the grounds, among others, that the Committee was not engaged in 'a legislative investigation for a bona fide legislative purpose,' but rather in an effort to destroy the labor union of which petitioner was an officer; that the 'committee's basic resolution' is unconstitutional because 'no person can determine from it the boundaries of the Committee's power,' and that in any event it did not authorize this investigation; and that the First Amendment forbids compulsory disclosure of political beliefs and affiliations.
2
This provision, enacted in 1857, now (with minor changes) reads as follows:
'Every person who having been summoned as a witness by the authority of either House of Congress, to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.'
3
The leading case on the requirement of legislative purpose is Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377. Kilbourn did not arise under § 192, but was a damage suit arising out of a direct exercise by the House of Representatives of a claimed power to punish for contempt. The Court held that since the subject matter of the investigation had not been legislative in character, the order of contempt of the House, directing its Sergeant-at-Arms to imprison the contumacious witness, afforded the Sergeant no protection from liability. See, for cases under § 192, In re Chapman, 166 U.S. 661, 667—670, 17 S.Ct. 677, 679—681, 41 L.Ed. 1154; McGrain v. Daugherty, 273 U.S. 135, 173—180, 47 S.Ct. 319, 328—331, 71 L.Ed. 580; Sinclair v. United States, 279 U.S. 263, 291—295, 49 S.Ct. 268, 271—272, 73 L.Ed. 692; Quinn v. United States, 349 U.S. 155, 160—161, 75 S.Ct. 668, 672—673, 99 L.Ed. 964; Watkins v. United States, 354 U.S. 178, 187, 200, 77 S.Ct. 1173, 1179, 1185, 1 L.Ed.2d 1273; Barenblatt v. United States, 360 U.S. 109, 133, 79 S.Ct. 1081, 1096, 3 L.Ed.2d 1115; Wilkinson v. United States, 365 U.S. 399, 410—412, 81 S.Ct. 567, 573—575, 5 L.Ed.2d 633. See also note 6, infra.
4
There is some evidence in the record that the House Committee had 'intermittently' (Brief for the United States, p. 4) investigated the union of which petitioner was an officer as a part of its alleged 'continuing investigation.' However, nowhere in the record does any authorization of such a continuing investigation appear. In any event, the authorization of a 'major investigation' by the full Committee must occur during the term of the Congress in which the investigation takes place. Neither the House of Representatives nor its committees are continuing bodies. Cf. Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242; Marshall v. Gordon, 243 U.S. 521, 542, 37 S.Ct. 448, 453, 61 L.Ed. 881. It is the practice of the House to adopt its Rules—including the Rule which establishes the Un-American Activities Committee and defines the scope of its authority—at the beginning of each Congress. See, e.g., 109 Cong.Rec. 14, 88th Cong., 1st Sess. (1963); 101 Cong.Rec. 11, 84th Cong., 1st Sess. (1955).
5
See, e.g., Watkins v. United States, 354 U.S. 178, 208, 77 S.Ct. 1173, 1189—1190; Russell v. United States, 369 U.S. 749, 755, 82 S.Ct. 1038, 1041—1042; United States v. Lamont, 18 F.R.D. 27, 37 (D.C.S.D.N.Y.1955), aff'd, 236 F.2d 312 (C.A.2d Cir.1956).
6
For example, in connection with the debates on § 192, Senator Bayard, who bore the brunt of the argument for the bill in the Senate, said: 'It is a rule of law very well settled, that if there is no jurisdiction over the subject-matter, the proceeding is void. In such a case, of course, a court of justice would decide that the witness could not be compelled to answer for want of jurisdiction.' Cong.Globe, 34th Cong., 3d Sess., p. 439 (1857). See also id., at 439—440.
In Russell, this Court said, 'The obvious consequence (of the Congressional purpose in § 192), as the Court has repeatedly emphasized, was to confer upon the federal courts the duty to accord a person prosecuted for this statutory offense every safeguard which the law accords in all other federal criminal cases.' 369 U.S., at 755, 82 S.Ct., at 1042.
7
In the absence—as here—of any specific authorization of the inquiry and in view of the broad and conflicting statements of the committee members as to the purpose of the inquiry, the present case presents a formidable problem of the 'vice of vagueness' which troubled the Court in Watkins, 354 U.S., at 209, 77 S.Ct., at 1190. We do not reach that problem because we decide the case on other grounds.
8
The record contains the following news account, the accuracy of which was not controverted:
'Rep. Francis E. Walter (D., pa.), who will take charge in the new Congress of House activities against communists and their sympathizers, has a new plan for driving Reds out of important industries.
'He said today he plans to hold large public hearings in industrial communities where subversives are known to be operating, and to give known or suspected commies a chance in a full glare of publicity to deny or affirm their connection with a revolutionary conspiracy—or to take shelter behind constitutional amendments.
'By this means, he said, active communists will be exposed before their neighbors and fellow workers, 'and I have every confidence that the loyal Americans who work with them will do the rest of the job.'
'Hearings of a similar nature have been held in local areas, but Rep. Walter wants to make them bigger, with the public being urged as well as invited to attend.
"We will force these people we know to be communists to appear by the power of subpena,' Rep. Walter said, 'and will demonstrate to their fellow workers that they are part of a foreign conspiracy."
9
This Court has emphasized that there is no congressional power to investigate merely for the sake of exposure or punishment, particularly in the First Amendment area. In Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273, the Court stated:
'We have no doubt that there is no congressional power to expose for the sake of exposure.' Id., at 200, 77 S.Ct., at 1185.
'There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. * * * Investigations conducted solely * * * to 'punish' those investigated are indefensible.' Id., at 187, 77 S.Ct., at 1179.
See also cases cited at note 3, supra; and see note 6, supra.
10
In Watkins, 354 U.S., at 200—216, 77 S.Ct., at 1185—1194, this Court considered the bearing upon the statutory requirement of pertinency of the Committee's status as a standing committee, of its vague charter, and of failure to define the scope of its activities within that charter.
11
The indictment refers to Committee action taken on three dates, and the proof at trial provided no other source of authority for the Subcommittee. None of these designates or describes the subject matter of the inquiry or authorizes the subcommittee to conduct it. The Committee's minutes for these three dates are as follows:
On January 20, 1955, the House Committee authorized its Chairman
'from time to time to appoint subcommittees composed of three or more members of the Committee on Un-American Activities, at least one of whom shall be of the minority political party, and a majority of whom shall constitute a quorum, for the purpose of performing any and all acts which the Committee as a whole is authorized to perform.'
Thereafter, on February 9, a meeting of the House Committee was held, the minutes of which record the following:
'Mr. Scherer moved that Davis Mates and John Gojack be subpenaed to appear before a subcommittee of the Committee on Internal Security (sic) in open hearing at Fort Wayne, Indiana; and that a Dr. Scharfman (sic—Dr. Shafarman) be subpenaed to appear in executive session at Fort Wayne, Indiana. The Chairman designated Mr. Moulder, Mr. Doyle, and Mr. Scherer as a subcommittee to conduct the hearings in Fort Wayne, Indiana, and set the time at February 21, 1955.'
The House Committee met again on February 23, and the following took place:
'The hearings scheduled to be held at Fort Wayne, Indiana, were discussed. The Chairman stated that upon learning that a National Labor Board election was to be held in Fort Wayne on February 24, he continued the hearings until February 28 and set the place for the hearings in Washington, D.C. Mr. Scherer moved that the Committee hold hearings at a subsequent date in Fort Wayne. The motion died for want of a second. The Committee agreed that after the hearings on February 28 it would then be determined whether further hearings in Fort Wayne would be necessary.'
12
The action of the full Committee in reporting petitioner's contempt to the House, and the House's action in certifying the contempt to the United States Attorney for prosecution, cannot be taken as retroactive authorization of the investigation and definition of the delegated authority. Petitioner's 'duty to answer must be judged as of the time of his refusal.' United States v. Rumely, 345 U.S. 41, 48, 73 S.Ct. 543, 547.
13
See Cong.Globe, 34th Cong., 3d Sess., particularly at pages 406, 409—410, 427, 435 (1857). See also Watkins v. United States, 354 U.S., at 178, 200—201, 77 S.Ct., at 1185—1186.
| 23
|
384 U.S. 780
86 S.Ct. 1783
16 L.Ed.2d 925
STATE OF GEORGIA, Petitioner,v.Thomas RACHEL et al.
No. 147.
Argued April 25 and 26, 1966.
Decided June 20, 1966.
[Syllabus from pages 780-781 intentionally omitted]
George K. McPherson, Jr., J. Robert Sparks, Atlanta, Ga., for petitioner.
Anthony G. Amsterdam, Washington, D.C., for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
This case presents questions concerning the scope of a century-old federal law that permits a defendant in state court proceedings to transfer his case to a federal trial court under certain conditions. That law, now 28 U.S.C. § 1443 (1964 ed.) provides:
2
's 1443. Civil rights cases.
3
'Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
4
'(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;
5
'(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.'
6
The case arises from a removal petition filed by Thomas Rachel and 19 other defendants seeking to transfer to the United States District Court for the Northern District of Georgia criminal trespass prosecutions pending against them in the Superior Court of Fulton County, Georgia. The petition stated that the defendants had been arrested on various dates in the spring of 1963 when they sought to obtain service at privately owned restaurants open to the general public in Atlanta, Georgia. The defendants alleged:
7
'their arrests were effected for the sole purpose of aiding, abetting, and perpetuating customs, and usages which have deep historical and psychological roots in the mores and attitudes which exist within the City of Atlanta with respect to serving and seating members of the Negro race in such places of public accommodation and convenience upon a racially discriminatory basis and upon terms and conditions not imposed upon members of the so-called white or Caucasian race. Members of the so-called white or Caucasian race are similarly treated and discriminated against when accompanied by members of the Negro race.'
8
Each defendant, according to the petition, was then indicted under the Georgia statute making it a misdemeanor to refuse to leave the premises of another when requested to do so by the owner or the person in charge.1 On these allegations, the defendants maintained that removal was authorized under both subsections of 28 U.S.C. § 1443. The defendants maintained broadly that they were entitled to removal under the First Amendment and the Due Process Clause of the Fourteenth Amendment. Specifically invoking the language of subsection (1), the 'denied or cannot enforce' clause, their petition stated:
9
'petitioners are denied and/or cannot enforce in the Courts of the State of Georgia rights under the Constitution and Laws of the United States providing for the equal rights of citizens of the United States * * * in that, among other things, the State of Georgia by statute, custom, usage, and practice supports and maintains a policy of racial discrimination.'
10
Invoking the language of subsection (2), the 'color of authority' clause, the petition stated:
11
'petitioners are being prosecuted for acts done under color of authority derived from the constitution and laws of the United States and for refusing to do an act which was, and is, inconsistent with the Constitution and Laws of the United States.'
12
On its own motion and without a hearing, the Federal District Court remanded the cases to the Superior Court of Fulton County, Georgia, finding that the petition did not allege facts sufficient to sustain removal under the federal statute. The defendants appealed to the Court of Appeals for the Fifth Circuit.2
13
While the case was pending in that court, two events of critical significance took place. The first of these was the enactment into law by the United States Congress of the Civil Rights Act of 1964, 78 Stat. 241. The second was the decision of this Court in Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300. That case held that the Act precludes state trespass prosecutions for peaceful attempts to be served upon an equal basis in establishments covered by the Act, even though the prosecutions were instituted prior to the Act's passage.3 In view of these intervening developments in the law, the Court of Appeals reversed the District Court. In terms of the language of § 1443(1), the court held that, if the allegations in the petition were true, prosecution in the courts of Georgia under that State's trespass statute, substantially similar to the state statutes involved in Hamm, denied the defendants a right under a law providing for equal civil rights—the Civil Rights Act of 1964. The case was therefore returned to the District Court, with directions that the defendants be given an opportunity to prove that their prosecutions had resulted from orders to leave places of public accommodation 'for racial reasons.' Upon such proof, the court held that Hamm would then require the District Court to order dismissal of the prosecutions. 342 F.2d 336, 343.
14
We granted certiorari to consider the applicability of the removal statute to the circumstances of this case. 382 U.S. 808, 86 S.Ct. 39, 15 L.Ed.2d 58. No issues touching the constitutional power of Congress are involved. We deal only with questions of statutory construction.4
15
The present statute is a direct descendant of a provision enacted as part of the Civil Rights Act of 1866. 14 Stat. 27. The subsection that is now § 1443(1) was before this Court in a series of decisions beginning with Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664, and Com. of Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667, in 1880 and ending with Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633, in 1906.5 The Court has not considered the removal statute since then, one reason being that an order remanding a case sought to be removed under § 1443 was not appealable after the year 1887.6 In § 901 of the Civil Rights Act of 1964, however, Congress specifically provided for appeals from remand orders in § 1443 cases, so as to give the federal reviewing courts a new opportunity to consider the meaning and scope of the removal statute.7 78 Stat. 266, 28 U.S.C. § 1447(d) (1964 ed.). The courts of appeals in four circuits have now had occasion to give extensive consideration to various aspects of the removal statute.8 In the case before us, the Court of Appeals for the Fifth Circuit dealt only with issues arising under the first subsection of § 1443, and we confine our review to those issues.
16
Section 1443(1) entitles the defendants to remove these prosecutions to the federal court only if they meet both requirements of that subsection. They must show both that the right upon which they rely is a 'right under any law providing for * * * equal civil rights,' and that they are 'denied or cannot enforce' that right in the courts of Georgia.
17
The statutory phrase 'any law providing for * * * equal civil rights' did not appear in the original removal provision in the Civil Rights Act of 1866. That provision allowed removal only in cases involving the express statutory rights of racial equality guaranteed in the Act itself. The first section of the 1866 Act secured for all citizens the 'same' rights as were 'enjoyed by white citizens' in a variety of fundamental areas.9 Section 3, the removal section of the 1866 Act, provided for removal by 'persons who are denied or cannot enforce * * * the rights secured to them by the first section of this act * * *.'10
18
The present language 'any law providing for * * * equal civil rights' first appeared in § 641 of the Revised Statutes of 1874.11 When the Revised Statutes were compiled, the substantive and removal provisions of the Civil Rights Act of 1866 were carried forward in separate sections.12 Hence, Congress could no longer identify the rights for which removal was available by using the language of the original Civil Rights Act—'rights secured to them by the first section of this act.' The new language it chose, however, does not suggest that it intended to limit the scope of removal to rights recognized in statutes existing in 1874. On the contrary, Congress' choice of the open-ended phrase 'any law providing for * * * equal civil rights' was clearly appropriate to permit removal in cases involving 'a right under' both existing and future statutes that provided for equal civil rights.
19
There is no substantial indication, however, that the general language of § 641 of the Revised Statutes was intended to expand the kinds of 'law' to which the removal section referred. In spite of the potential breadth of the phrase 'any law providing for * * * equal civil rights,' it seems clear that in enacting § 641, Congress intended in that phrase only to include laws comparable in nature to the Civil Rights Act of 1866. Prior to the 1874 revision, Congress had not significantly enlarged the opportunity for removal available to private persons beyond the relatively narrow category of rights specified in the 1866 Act, even though the Fourteenth and Fifteenth Amendments had been adopted and Congress had broadly implemented them in other major civil rights legislation.13 Moreover, § 641 contained an explicit cross-reference at the end of the section to § 1977 of the Revised Statutes, which carried forward the principal rights created in § 1 of the 1866 Act. In addition, the note in the margin of § 641 pointed specifically to the removal provision of the Civil Rights Act of 1866 and to §§ 16 and 18 of the Civil Rights Act of 1870.14 The latter sections were concerned solely with the re-enactment, in somewhat expanded form, of the 1866 Act. Finally, the limitation of § 641 to laws comparable to the Civil Rights Act of 1866 comports with the relatively narrow mandate of the revising commissioners 'to revise, simplify, arrange, and consolidate all statutes of the United States, general and permanent in their nature, which shall be in force at the time such commissioners may make the final report of their doings.' Act of June 27, 1866, c. 140, 14 Stat. 74. We conclude, therefore, that the model for the phrase 'any law providing for * * * equal civil rights' in § 641 was the Civil Rights Act of 1866.
20
The legislative history of the 1866 Act clearly indicates that Congress intended to protect a limited category of rights, specifically defined in terms of racial equality. As originally proposed in the Senate, § 1 of the bill that became the 1866 Act did not contain the phrase 'as is enjoyed by white citizens.'15 That phrase was later added in committee in the House, apparently to emphasize the racial character of the rights being protected. More important, th Senate bill did contain a general provision forbidding 'discrimination in civil rights or immunities,' preceding the specific enumeration of rights to be included in § 1.16 Objections were raised in the legislative debates to the breadth of the rights of racial equality that might be encompassed by a prohibition so general as one against 'discrimination in civil rights or immunities.' There was sharp controversy in the Senate,17 but the bill passed. After similar controversy in the House,18 however, an amendment was accepted striking the phrase from the bill.19
21
On the basis of the historical material that is available, we conclude that the phrase 'any law providing for * * * equal civil rights' must be construed to mean any law providing for specific civil rights stated in terms of racial equality. Thus, the defendants' broad contentions under the First Amendment and the Due Process Clause of the Fourteenth Amendment cannot support a valid claim for removal under § 1443, because the guarantees of those clauses are phrased in terms of general application available to all persons or citizens, rather than in the specific language of racial equality that § 1443 demands. As the Court of Appeals for the Second Circuit has concluded,s 1443 'applies only to rights that are granted in terms of equality and not to the whole gamut of constitutional rights * * *.' 'When the removal statute speaks of 'any law providing for equal rights,' it refers to those laws that are couched in terms of equality, such as the historic and the recent equal rights statutes, as distinguished from laws, of which the due process clause and 42 U.S.C. § 1983 are sufficient examples, that confer equal rights in the sense, vital to our way of life, of bestowing them upon all.' People of State of New York v. Galamison, 342 F.2d 255, 269, 271. See also Gibson v. State of Mississippi, 162 U.S. 565, 585—586, 16 S.Ct. 904, 905, 906, 40 L.Ed. 1075; Com. of Kentucky v. Powers, 201 U.S. 1, 39—40, 26 S.Ct. 387, 399, 400, 50 L.Ed. 633; City of Greenwood v. Peacock, 384 U.S. 825, 86 S.Ct. 1811, 16 L.Ed.2d 955.
22
But the defendants in the present case did not rely solely on these broad constitutional claims in their removal petition. They also made allegations calling into play the Civil Rights Act of 1964. That Act is clearly a law conferring a specific right of racial equality, for in s 201(a) it guarantees to all the 'full and equal enjoyment' of the facilities of any place of public accommodation without discrimination on the ground of race.20 By that language the Act plainly qualifies as a 'law providing for * * * equal civil rights' within the meaning of 28 U.S.C. § 1443(1).
23
Moreover, it is clear that the right relied upon as the basis for removal is a 'right under' a law providing for equal civil rights. The removal petition may fairly be read to allege that the defendants will be brought to trial solely as the result of peaceful attempts to obtain service at places of public accommodation.21 The Civil Rights Act of 1964 endows the defendants with a right not to be prosecuted for such conduct. As noted, § 201(a) guarantees to the defendants the equal access they sought. Section 203 then provides that, 'No person shall * * * (c) punish or attempt to punish any person for exercising or attempting to exercise any right or privilege secured by section 201 or 202.' (Emphasis supplied.) 78 Stat. 244. In Hamm v. City of Rock Hill, 379 U.S. 306, 311, 85 S.Ct. 384, 13 L.Ed.2d 300, the Court held that this section of the Act 'prohibits prosecution of any person for seeking service in a covered establishment, because of his race or color.' Hence, if the facts alleged in the petition are true, the defendants not only are immune from conviction under the Georgia trespass statute, but they have a 'right under' the Civil Rights Act of 1964 not even to be brought to trial on these charges in the Georgia courts.
24
The question remaining, then, is whether within the meaning of § 1443(1), the defendants are 'denied or cannot enforce' that right 'in the courts of' Georgia. That question can be answered only after consideration of the legislative and judicial history of this requirement.
25
When Congress adopted the first civil rights removal provisions in § 3 of the Civil Rights Act of 1866, it incorporated by reference the procedures for removal established in § 5 of the Habeas Corpus Suspension Act of 1863, 12 Stat. 756. The latter section, in turn, permitted removal either at the pre-trial stage of the proceedings in the state court or after final judgment in that court.22 There can be no doubt that post-judgment removal was a practical remedy for civil rights defendants invoking either the 'd 'denied or cannot enforce' clause or the 'color of authority' clause of the 1866 removal provision, in order to vindicate rights that had actually been denied at the trial.23 The scope of pre-trial removal, however, was unclear.24
26
Congress eliminated post-judgment removal when it enacted § 641 of the Revised Statutes of 1874.25 The compilation of the Revised Statutes coincided with the end of the Reconstruction period. During Reconstruction itself, removal under § 3 of the Civil Rights Act of 1866 had been but one measure established by Congress for the enforcement of the numerous statutory rights created under the Civil War Amendments. In other enactments, Congress had taken relatively more drastic steps to enforce those rights.26 But by the end of the Reconstruction period, many of these measures had expired, and by eliminating post-judgment removal, Congress had substantially truncated the original civil rights removal provison. Pre-trial removal was retained, but the scope of the provision had never been clarified. It was in this historic setting that the Court examined the scope of § 641. In a series of cases commencing with Strauder v. West Virginia, supra, and Virginia v. Rives, supra, decided on the same day in the 1879 Term, the Court established a relatively narrow, well-defined area in which pre-trial removal could be sustained under the 'denied or cannot enforce' clause of that section.
27
In Strauder, the removal petition of a Negro indicted for murder pointed to a West Virginia statute that permitted only white male persons to serve on a grand or petit jury. Since Negroes were excluded from jury service pursuant to that statute, the defendant claimed that the 'probabilities' were great that he would suffer a denial of his right to the 'full and equal benefit of all laws and proceedings in the State of West Virginia. * * *' 100 U.S., at 304. The state court denied removal, however, and the defendant was convicted.27 This Court held that pre-trial removal should have been granted because, in the language of § 641, it appeared even before trial that the defendant would be denied or could not enforce a right secured to him by a 'law providing for * * * equal civil rights.' The law specifically invoked by the Court was § 1977 of the Revised Statutes, now 42 U.S.C. § 1981. That law, the Court held, conferred upon the defendant the right to have his jurors selected without discrimination on the ground of race. Because of the direct conflict between the West Virginia statute and § 1977, the Court in Strauder held that the defendant would be the victim of 'a denial by the statute law of the State.' 100 U.S., at 312.
28
In Com. of Virginia v. Rives, however, the defendants could point to no such state statute as the basis for removal. Their petition alleged that strong community racial prejudice existed against them, that the grand and petit jurors summoned to try them were all white, that Negroes had never been allowed to serve on county juries in cases in which a Negro was involved in any way, and that the judge, the prosecutor, and the assistant prosecutor had all rejected their request that Negroes be included in the petit jury. Hence, the defendants maintained, they could not obtain a fair trial in the state court. But the only relevant Virginia statute to which the petition referred imposed jury duty on all males within a certain age range. Thus, the law of Virginia did not, on its face, sanction the discrimination of which the defendants complained. This Court held that the petition stated no ground for removal. Critical to its holding was the Court's observation that § 641 of the Revised Statutes authorized only pre-trial removal. The Court concluded:
29
'The denial or inability to enforce in the judicial tribunals of a State, rights secured to a defendant by any law providing for * * * equal civil rights * * * of which sect. 641 speaks, is primarily, if not exclusively, a denial of such rights, or an inability to enforce them, resulting from the Constitution or laws of the State, rather than a denial first made manifest at the trial of the case. In other words, the statute has reference to a legislative denial or an inability resulting from it. Many such cases of denial might have been apprehended, and some existed. Colored men might have been, as they had been, denied a trial by jury. They might have been excluded by law from any jury summoned to try persons of their race, or the law might have denied to them the testimony of colored men in their favor, or process for summoning witnesses. * * * In all such cases a defendant can affirm, on oath, before trial, that he is denied the equal protection of the laws or equality of civil rights. But in the absence of constitutional or legislative impediments he cannot swear before his case comes to trial that his enjoyment of all his civil rights is denied to him. When he has only an apprehension that such rights will be withheld from him when his case shall come to trial, he cannot affirm that they are actually denied, or that he cannot enforce them. Yet such an affirmation is essential to his right to remove his case. By the express requirement of the statute his petition must set forth the facts upon which he bases his claim to have his case removed, and not merely his belief that he cannot enforce his rights at a subsequent stage of the proceedings. The statute was not, therefore, intended as a corrective of errors or wrongs committed by judicial tribunals in the administration of the law at the trial.' 100 U.S., at 319—320.
30
The Court acknowledged that even though Virginia's statute did not authorize discrimination in jury selection, the officer in charge of the selection might nevertheless bring it about.
31
'But when a subordinate officer of the State, in violation of State law, undertakes to deprive an accused party of a right which the statute law accords to him, as in the case at bar, it can hardly be said that he is denied, or cannot enforce, 'in the judicial tribunals of the State' the rights which belong to him. In such a case it ought to be presumed the court will redress the wrong.' 100 U.S. at 321—322.
32
The Court distinguished the situation in Strauder:
33
'It is to be observed that (§ 641) gives the right of removal only to a person 'who is denied, or cannot enforce, in the judicial tribunals of the State his equal civil rights.' And this is to appear before trial. When a statute of the State denies his right, or interposes a bar to his enforcing it, in the judicial tribunals, the presumption is fair that they will be controlled by it in their decisions; and in such a case a defendant may affirm on oath what is necessary for a removal. Such a case is clearly within the provisions of sect. 641.' 100 U.S., at 321. (Emphasis in original.)
34
Stauder and Rives thus teach that removal is not warranted by an assertion that a denial of rights of equality may take place and go uncorrected at trial. Removal is warranted only if it can be predicted by reference to a law of general application that the defendant will be denied or cannot enforce the specified federal rights in the state courts. A state statute authorizing the denial affords an ample basis for such a prediction.
35
The doctrine announced in Strauder and Rives was amplified in Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567, and Bush v. Commonwealth of Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354. In both cases, the Court reversed convictions on the ground that jury selection had been conducted pursuant to a policy of racial discrimination. Yet in both cases the Court also held that a pre-trial removal petition alleging such discrimination stated no ground for removal. In Neal the petition relied upon a Delaware constitutional provision, adopted prior to the advent of the Fourteenth and Fifteenth Amendments, that purportedly sanctioned discriminatory jury selection. But the Delaware court in which the petition had been filed held that the subsequent Amendments rendered the state provision void. Hence, unlike Strauder, the Neal case involved no law of the State upon which to found a suitable prediction that rights of equality would be denied in the courts of the State. In Bush, the petition relied upon a Kentucky jury exclusion statute drawn along racial lines that had been enacted after the adoption of the Fourteenth Amendment. But prior to Bush's trial, the Kentucky Court of Appeals had held, in another case, that the statute was unconstitutional. This Court noted that the judicial declaration was binding upon all inferior Kentucky courts and concluded that, 'After that decision, so long as it was unmodified, it could not have been properly said in advance of a trial that the defendant in a criminal prosecution was denied or could not enforce in the judicial tribunals of Kentucky the rights secured to him by any law providing for * * * equal civil rights * * *.' 107 U.S., at 116, 1 S.Ct., at 631. In both Neal and Bush, then, the Court held that in the absence of a presently effective state law authorizing the predicted denial, the state court was the proper forum for the resolution of the claims that rights of equality would be denied, even though, as the Court also held, the state courts had ultimately failed to correct the denials that in fact took place at the defendants' trials in those two cases.
36
Four subsequent decisions, also involving claims of racial discrimination in jury selection, reiterated the principles announced in Strauder and Rives, and amplified in Neal and Bush.28 The final removal case decided by this Court was Com. of Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633. In that case, which involved alleged discrimination on a political basis, the defendant was about to undergo his fourth trial, having been successful on appeal after three prior verdicts of guilty. He could therefore enhance his prediction that rights would be denied by pointing to instances of illegality in the three prior proceedings against him. But the petition for removal resembled those in the cases that followed Strauder in that it pointed to no state enactment that authorized the predicted denial. Accordingly, restating the Strauder-Rives doctrine, this Court held that no case for removal had been made out.
37
In the line of cases from Strauder to Powers, the Court interpreted § 641 of the Revised Statutes of 1874. That statute has come down to us, in modified form, as § 1443. But in its first subsection, the present removal statute still requires that a petitioner be one who 'is denied or cannot enforce in the courts of' a State the rights he seeks to vindicate by removing the case to federal court. There is no suggestion that the modifications in the statute since 1874 were intended to effect any change in substance. Hence, for the purposes of the present case, we are dealing with the same statute that confronted the Court in the cases interpreting § 641.29
38
The Strauder-Rives doctrine, as consistently applied in all these cases, required a removal petition to allege, not merely that rights of equality would be denied or could not be enforced, but that the denial would take place in the courts of the State. The doctrine also required that the denial be manifest in a formal expression of state law. This requirement served two ends. It ensured that removal would be available only in cases where the predicted denial appeared with relative clarity prior to trial. It also ensured that the task of prediction would not involve a detailed analysis by a federal judge of the likely disposition of particular federal claims by particular state courts. That task not only would have been difficult, but it also would have involved federal judges in the unseemly process of prejudging their brethren of the state courts. Thus, the Court in Strauder and Rives concluded that a state enactment, discriminatory on its face, so clearly authorized discrimination that it could be taken as a suitable indication that all courts in that State would disregard the federal right of equality with which the state enactment was precisely in conflict.
39
In Rives itself, however, the Court noted that the denial of which the removal provision speaks 'is primarily, if not exclusively, a denial * * * resulting from the Constitution or laws of the State * * *.' 100 U.S., at 319. (Emphasis supplied.) This statement was reaffirmed in Gibson v. State of Mississippi, 162 U.S. 565, 581, 16 S.Ct. 904, 40 L.Ed. 1075. The Court thereby gave some indication that removal might be justified, even in the absence of a discriminatory state enactment, if an equivalent basis could be shown for an equally firm prediction that the defendant would be 'denied or cannot enforce' the specified federal rights in the state court. Such a basis for prediction exists in the present case.
40
In the narrow circumstances of this case, any proceedings in the courts of the State will constitute a denial of the rights conferred by the Civil Rights Act of 1964, as construed in Hamm v. City of Rock Hill, if the allegations of the removal petition are true. The removal petition alleges, in effect, that the defendants refused to leave facilities of public accommodation, when ordered to do so solely for racial reasons, and that they are charged under a Georgia trespass statute that makes it a criminal offense to refuse to obey such an order. The Civil Rights Act of 1964, however, as Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300, made clear, protects those who refuse to obey such an order not only from conviction in state courts, but from prosecution in those courts. Hamm emphasized the precise terms of § 203(c) that prohibit any 'attempt to punish' persons for exercising rights of equality conferred upon them by the Act. The explicit terms of that section compelled the conclusion that 'nonforcible attempts to gain admittance to or remain in establishments covered by the Act, are immunized from prosecution * * *.' 379 U.S., at 311, 85 S.Ct. at 389. The 1964 Act therefore 'substitutes a right for a crime.' 379 U.S., at 314, 85 S.Ct. at 390. Hence, if as alleged in the present removal petition, the defendants were asked to leave solely for racial reasons, then the mere pendency of the prosecutions enables the federal court to make the clear prediction that the defendants will be 'denied or cannot enforce in the courts of (the) State' the right to be free of any 'attempt to punish' them for protected activity. It is no answer in these circumstances that the defendants might eventually prevail in the state court.30 The burden of having to defend the prosecutions is itself the denial of a right explicitly conferred by the Civil Rights Act of 1964 as construed in Hamm v. City of Rock Hill, supra.
41
Since the Federal District Court remanded the present case without a hearing, the defendants as yet have had no opportunity to establish that they were ordered to leave the restaurant facilities solely for racial reasons. If the Federal District Court finds that allegation true, the defendants' right to removal under § 1443(1) will be clear.31 The Strauder-Rives doctrine requires no more, for the denial in the courts of the State then clearly appears without any detailed analysis of the likely behavior of any particular state court. Upon such a finding it will be apparent that the conduct of the defendants is 'immunized from prosecution' in any court, and the Federal District Court must then sustain the removal and dismiss the prosecutions.
42
For these reasons, the judgment is affirmed.
43
Affirmed.
APPENDIX TO OPINION OF THE COURT.
44
Habeas Corpus Suspension Act Act of March 3, 1863, c. 81, § 5, 12 Stat. 756
45
Sec. 5. And be it further enacted, That if any suit or prosecution, civil civil or criminal, has been or shall be commenced in any state court against any officer, civil or military, or against any other person, for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or any act of Congress, and the defendant shall, at the time of entering his appearance in such court, or if such appearance shall have been entered before the passage of this act, then at the next session of the court in which such suit or prosecution is pending, file a petition stating the facts and verified by affidavit, for the removal of the cause for trial at the next circuit court of the United States, to be holden in the district where the suit is pending * * * [T]he cause shall proceed therein in the same manner as if it had been brought in said court by original process * * * And it shall be lawful in any such action or prosecution which may be now pending, or hereafter commenced, before any state court whatever, for any cause aforesaid, after final judgment, for either party to remove and transfer, by appeal, such case during the session or term of said court at which the same shall have taken place, from such court to the next circuit court of the United States to be held in the district in which such appeal shall be taken * * * [A]nd it shall also be competent for either party, within six months after the rendition of a judgment shall have been rendered * * * Provided * * * That no such appeal or writ of error shall be allowed in any criminal action or prosecution where final judgment shall have been rendered in favor of the defendant or respondent by the state court. * * *
46
Civil Rights Act of 1866 Act of April 9, 1866, c. 31, § 3, 14 Stat. 27
47
SEC. 3. And be it further enacted, That the district courts of the United States, within their respective districts, shall have, exclusively of the courts of the several States, cognizance of all crimes and offences committed against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the first section of this act;1 and if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court, against any such person, for any cause whatsoever,
48
or against any officer, civil or military, or other person, for any arrest or imprisonment, trespasses, or wrongs done or committed by virtue or under color of authority derived from this act or the act establishing a Bureau for the relief of Freedmen and Refugees, and all acts amendatory thereof, or for refusing to do any act upon the ground that it would be inconsistent with this act, such defendant shall have the right to remove such cause for trial to the proper district or circuit court in the manner prescribed by the 'Act relating to habeas corpus and regulating judicial proceedings in certain cases,' approved March three, eighteen hundred and sixty-three, and all acts amendatory thereof. * * *
Revised Statutes of 1874 § 641
49
SEC. 641. When any civil suit or criminal prosecution is commenced in any State court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the State, or in the part of the State where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States,
50
or against any officer, civil or military, or other person, for any arrest or imprisonment or other trespasses or wrongs, made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may, upon the petition of such defendant, filed in said State court, at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed, for trial, into the next circuit court to be held in the district where it is pending. * * *2
51
Title 28, United States Code § 1443 (1964 ed.)
52
s 1443. Civil rights cases.
53
Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
54
(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;
55
(2) For any act under color of authority derived from any law providing for the equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.
56
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BRENNAN and Mr. Justice FORTAS join, concurring.
57
As I indicate in my opinion in the Peacock cases, 384 U.S. 842, 86 S.Ct. 1820, 16 L.Ed.2d 965, equal civil rights of a citizen of the United States are 'denied' witin the meaning of 28 U.S.C. § 1443(1) (1964 ed.) when he is prosecuted for asserting them. Section 201 of the Civil Rights Act of 1964 (78 Stat. 243, 42 U.S.C. § 2000a (1964 ed.)) gave these defendants a right to equal service in places of public accommodation. Section 203 (78 Stat. 244, 42 U.S.C. § 2000a—2, 1964 ed.) gave them a right against intimidation, coercion, or punishment for exercising those rights. And we held in Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300, that §§ 201 and 203 precluded state criminal trespass convictions of sit-in demonstrators even though the sit-ins occurred and their prosecution had been instituted prior to the effective date of the 1964 Act.
58
Congress, in other words, gave these defendants the right to enter the restaurants in question, to sit there, and to be served a right that was construed by this Court to include immunity from prosecution after the effective date of the Act for acts done prior thereto.
59
It is the right to equal service in restaurants and the right to be free of prosecution for asserting that right—not the right to have a trespass conviction reversed—that the present prosecutions threaten. It is this right which must be vindicated by complete insulation from the State's criminal process if it is to be wholly vindicated. It is this right which the defendants are 'denied' so long as the present prosecutions persist.
60
Georgia claims that Hamm v. City of Rock Hill, supra, does not cover cases of sit-ins prosecuted for disorderly conduct or other unlawful acts. Of course that is true. But one of the functions of the hearing on the allegations of the removal petition will be to determine whether the defendants were ejected on racial grounds or for some other, valid, reason. The Court of Appeals correctly ruled that 'in the event it is established that the removal of the appellants from the various places of public accommodation was done for racial reasons, then under authority of the Hamm case it would become the duty of the district court to order a dismissal of the prosecutions without further proceedings.' 342 F.2d 336, 343. (Emphasis added.)
61
If service was denied for other reasons, no case for removal has been made out. And if, as is intimated, any doubt remains as to whether the restaurants in question were covered by the 1964 Act, that too should be left open in the hearing to be held before the District Court—a procedure to which the defendants do not object.
1
The statute under which the defendants were charged, Ga.Code Ann. § 26—3005 (1965 Cum.Supp.), provides:
'Refusal to leave premises of another when ordered to do so by owner or person in charge.—It shall be unlawful for any person, who is on the premises of another, to refuse and fail to leave said premises when requested to do so by the owner or any person in charge of said premises or the agent or employee of such owner or such person in charge. Any person violating the provisions of this section shall be guilty of a misdemeanor and upon conviction thereof shall be punished as for a misdemeanor.'
2
We reject the State's contention that the appeal was untimely. The notice of appeal was filed 16 days after the order of remand. Although Rule 37(a)(2) of the Federal Rules of Criminal Procedure requires that an appeal be taken within 10 days after entry of the order appealed from, that rule does not govern an appeal taken prior to verdict, finding of guilty or not guilty by the court, or plea of guilty. This Court promulgated Rules 32—39 under authority of the Act of February 24, 1933, which authorized only rules governing proceedings in criminal cases after verdict, finding of guilty or not guilty be the court, or plea of guilty. 47 Stat. 904, as amended. 18 U.S.C. § 3772 (1964 ed.). See 327 U.S. 825. In 1940, Congress authorized the Court to prescribe rules for criminal proceedings prior to verdict, finding of guilty or not guilty by the court, or plea of guilty. 54 Stat. 688, as amended, 18 U.S.C. § 3771 (1964 ed.). But this authorization required that the rules be submitted to Congress before they could take effect. Only Rules 1—31 and 40—60 were so submitted. 327 U.S. 824.
3
'The Supremacy Clause, Art. VI, cl. 2, requires this result where 'there is a clear collision' between state and federal law * * *.' Hamm v. City of Rock Hill, 379 U.S. 306, 311, 85 S.Ct. 384, 389, 13 L.Ed.2d 300.
4
For a remarkably original and comprehensive discussion of the issues presented in this case and in City of Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944, see Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial, 113 U.Pa.L.Rev. 793 (1965).
5
The intervening cases were: Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567; Bush v. Com. of Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354; Gibson v. State of Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075; Smith v. State of Mississippi, 162 U.S. 592, 16 S.Ct. 900, 40 L.Ed. 1082; Murray v. State of Louisiana, 163 U.S. 101, 16 S.Ct. 990, 41 L.Ed. 87; Williams v. State of Mississippi, 170 U.S. 213, 18 S.Ct. 583, 42 L.Ed. 1012. See also Dubuclet v. State of Louisiana, 103 U.S. 550, 26 L.Ed. 504; Schmidt v. Cobb, 119 U.S. 286, 7 S.Ct. 1373, 30 L.Ed. 321.
6
Prior to 1875, a remand order was regarded as a nonfinal order reviewable by mandamus, but not by appeal. Railroad Co. v. Wiswall, 23 Wall. 507. In 1875, Congress provided for review 'by the Supreme Court on writ of error or appeal, as the case may be.' 18 Stat. 472. Twelve years later, however, Congress closed off the appellate avenue in the following language: 'and no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed.' 24 Stat. 553. Compare Gay v. Ruff, 292 U.S. 25, 28—31, 54 S.Ct. 608, 609—611, 78 L.Ed. 1099. In the case of In re Pennsylvania Co., 137 U.S. 451, 11 S.Ct. 141, 34 L.Ed. 738. This Court held 11 S.Ct. 141, 34 L.Ed. 738, this Court held bar review by mandamus. Until its amendment in 1964, the modern vesion of the statutory bar, 28 U.S.C. § 1447(d) (1964 ed.), prohibited review of a remand order 'on appeal or otherwise' in cases removed pursuant to any statute.
7
Section 901 of the Civil Rights Act of 1964 established an exception to the nonreviewability rule of 28 U.S.C. § 1447(d) for cases removed pursuant to 28 U.S.C. § 1443, by making remand orders in these cases 'reviewable by appeal or otherwise.' 28 U.S.C. § 1447(d) (1964 ed.). We have no doubt that Congress thereby intended to open the way for immediate appeal. See the remarks of: Representative Kastenmeier, 110 Cong.Rec. 2770; Senator Humphrey, 110 Cong.Rec. 6551; Senator Kuchel, 110 Cong.Rec. 6564; Senator Dodd, 110 Cong.Rec. 6955—6956.
Mr. Kastenmeier had originally introduced a bill amending § 1443 itself, which he described as making it "easier to remove a case from a State court to a U.S. district court, whenever it appears that strict impartiality is not possible in the State court.' 109 Cong.Rec. 13126, 13128. In later defending the final bill which simply made remand orders appealable in § 1443 cases, he said on the House floor: 'Mr. Chairman, what we have done is probably the most modest thing possible in this field. The subcommittee had before it a slightly more ambitious section dealing with this problem, and would have amended 1443 and 1447, but the committee took the most conservative approach and provided merely for an appeal of the remand decision.' 110 Cong.Rec. 2773.
The statements of the leaders speaking for the bill on the floor of the Senate are typified by the following remarks of Senator Dodd:
'Some have thought that it would be better for Congress to specifiy directly the kinds of cases which it thinks ought to be removable, rather than simply permitting appeals and allowing the courts to consider the statute again in light of the original intention of the Congress in 1866. It seems to me, however, that the course we have chosen is more appropriate, considering the rather technical nature of the statute with which we are dealing.
'It would be extremely difficult to specify with precision the kinds of cases which ought to be removable under section 1443. This is true becuase of the many and varied circumstances which can and do arise in civil rights matters. Accordingly, it seems advisable to allow the courts to deal case by case with situations as they arise, and to fashion the remedy so as to harmonize it with the other statutory remedies made available for denials of equal civil rights.' 110 Cong.Rec. 6956.
8
In addition to this case and City of Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944, from the Fifth Circuit, see Baines v. City of Danville, 357 F.2d 756 (C.A.4th Cir.); City of Chester v. Anderson, 347 F.2d 823 (C.A.3d Cir.); New York v. Galamison, 342 F.2d 255 (C.A.2d Cir.).
The statistics on the number of criminal cases of all kinds removed from state to federal courts in recent years are revealing. For the fiscal years 1962, 1963, 1964, and 1965, there were 18, 14, 43, and 1,192 such cases, respectively. Of the total removed criminal cases for 1965. 1,079 were in the Fifth Circuit. See Annual Report of the Director of the Administrative Office of the United States Courts 213—217 (1965).
9
Section 1 of the Civil Rights Act of 1866 provided in relevant part:
'(A)ll * * * citizens of the United States * * * of every race and color, without regard to any previous condition of slavery or involuntary servitude * * * shall have the same right * * * to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.' 14 Stat. 27.
10
The relevant provisions of § 3 of the Civil Rights Act of 1866, 14 Stat. 27, are included in the Appendix to this opinion.
11
The relevant provisions of § 641 of the Revised Statutes of 1874 are included in the Appendix to this opinion.
12
The guarantees of § 1 of the Civil Rights Act of 1866 were carried forward as §§ 1977, and 1978 of the Revised Statutes, now 42 U.S.C. §§ 1981 and 1982 (1964 ed.).
13
See, e.g., second Civil Rights Act, Act of May 31, 1870, 16 Stat. 140, as amended by Act of February 28, 1871, 16 Stat. 433; third Civil Rights Act, Act of April 20, 1871, 17 Stat. 13. Section 1 of the Civil Rights Act of 1871, now 42 U.S.C. § 1983 (1964 ed.), established civil remedies for 'the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States.' When in 1874 the revisers relocated § 1 of the 1871 Act as § 1979 of the Revised Statutes, they expanded the section to include the deprivation of rights, privileges, and immunities secured by the 'Constitution and laws' of the United States, in contrast to their reference merely to 'law' in § 641 of the Revised Statutes, the civil rights removal provision. At least in some circumstances, therefore, it appears that the Revised Statutes may have specifically distinguished between 'rights secured by the Constitution' and 'rights secured by any law providing for equal civil rights.' See also Revised Statutes § 629, Sixteenth (1874), which drew an explicit distinction between rights secured by the Constitution and rights secured by the laws of the United States. The marginal note to the latter section refers to 'rights secured by the Constitution and laws' of the United States.
14
See Slaughter-House Cases, 16 Wall. 36, 83, 96—97, 83 U.S. 36, 21 L.Ed. 394 (dissenting opinion of Field, J.).
15
Cong.Globe, 39th Cong., 1st Sess., p. 474.
16
Ibid.
17
See, e.g., id., at 476—477 (remarks of Senator Saulsbury); 505—506 (remarks of Senator Johnson).
18
See, eG., id., at 1121—1122 (remarks of Representative Rogers); 1157 (remarks of Representative Thornton); 1271—1272, (remarks of Representative Bingham).
19
See Bickel, The Original Understanding and the Segregation Decision, 69 Harv.L.Rev. 1, 11—29 (1955).
20
Section 201(a) provides:
'All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.'
21
Section 1446 of Title 28 requires that a removal petition contain 'a short and plain statement of the facts' that purportedly justify removal. The instant petition satisfies that requirement. Since the petition predated the enactment of the Public Accommodations Title of the Civil Rights Act of 1964, it could not have explicitly alleged coverage under that Act. It recites facts, however, that invoke application of that Act on appeal. See United States v. Schooner Peggy, 1 Cranch 103, 5 U.S. 103, 2 L.Ed. 49; Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300; Linkletter v. Walker, 381 U.S. 618, 627, 85 S.Ct. 1731, 1736, 14 L.Ed.2d 601.
22
The relevant provisions of § 5 of the Habeas Corpus Suspension Act of 1863, 12 Stat. 756, are included in the Appendix to this opinion. Section 5 of the 1863 Act was amended in certain respects by the Act of May 11, 1866, 14 Stat. 46.
23
The 'color of authority' clause of the Civil Rights Act of 1866 was limited to federal officers and those assisting them. See City of Greenwood v. Peacock, 384 U.S. 814—824, 86 S.Ct. pp. 1805—1811, 16 L.Ed.2d 949—955. In addition, federal officers might also invoke the 'denied or cannot enforce' clause.
24
In view of the large numbers of federal officers and agents potentially involved in enforcement activities under the Civil Rights Act of 1866, see City of Greenwood v. Peacock, 384 U.S. 816—820, 86 S.Ct. pp, 1806—1809, 16 L.Ed.2d 950—953, pretrial removal would have been of obvious utility under the 'color of authority' clause of § 3 of the Civil Rights Act of 1866. Cf. Tennessee v. Davis, 100 U.S. 257, 261—262, 25 L.Ed. 648 (removal under § 643 of
the Revised Statutes of 1874); Hodgson v. Millward, 12 Fed.Cas. p. 285 (No. 6568 (C.C.E.D.Pa.)) (removal under § 5 of the Habeas Corpus Suspension Act of 1863, 12 Stat. 756), approved in Braun v. Sauerwein, 10 Wall. 218, 224, 77 U.S. 218, 19 L.Ed. 805. No such obvious rule for pre-trial removal is evident under the 'denied or cannot enforce' clause.
The obscure legislative history of § 3 of the Civil Rights Act of 1866 indicates only that the Reconstruction Congress did not intend the language of the 'denied or cannot enforce' clause of § 3 to be read to its fullest possible extent. In his vetomessage accompanying the bill President Johnson construed the clause so broadly as to give the federal courts jurisdiction over all cases affecting a person who was denied any of the various rights conferred by § 1, whether or not the right in question was in issue in the particular case. For example, in the President's view, a state court defendant under indictment for murder, who happened to be denied a contractual right under § 1, would be able to remove his case for trial in the federal court. In uring passage of the bill over the President's veto, Senator Trumbull, the floor manager of the bill, rejected the President's construction of the 'denied or cannot enforce' clause:
'The President objects to the third section of the bill * * *. (H)e insists (that it) gives jurisdiction to all cases affecting persons discriminated against as provided in the first and second sections of the bill; and by a strained construction the President seeks to divest State courts, not only of jurisdiction of the particular case where a party is discriminated against, but of all cases affecting him or which might affect him. This is not the meaning of the section. I have already shown, in commenting on the second section of the bill, that no person is liable to its penalties except the one who does an act which is made penal; that is, deprives another of some right that he is entitled to, or subjects him to some punishment that he ought not to bear.
'So in reference to this third section, the jurisdiction is given to the Federal courts of a case affecting the person that is discriminated against. Now, he is not necessarily discriminated against, because there may be a custom in the community discriminating against him nor because a Legislature may have passed a statute discriminating against him; that statute is of no validity if it comes in conflict
with a statute of the United States; and it is not to be presumed that any judge of a State court would hold that a statute of a State discriminating against a person on account of color was valid when there was a statute of the United States with which it was in direct conflict, and the case would not therefore rise in which a party was discriminated against until it was tested, and then if the discrimination was held valid he would have a right to remove it to a Federal court—or, if undertaking to enforce his right in a State court he was denied that right, then he could go into the Federal court; but it by no means follows that every person would have a right in the first instance to go to the Federal court because there was on the statute-book of the State a law discriminating against him, the presumption being that the judge of the court, when he came to act upon the case, would, in obedience to the paramount law of the United States, hold the State statute to be invalid.' Cong. Globe, 39th Cong., 1st Sess., p. 1759.
Cf. Blyew v. United States, 13 Wall. 581, 80 S.Ct. 581, 20 L.Ed. 638. It is clear that Senator Trumbull's reference to a person 'discriminated against' was a reference to a person who is denied his rights under the bill within the meaning of the 'denied or cannot enforce' clause of § 3. See Cong. Globe, 39th Cong., 1st Sess., p. 475.
25
In 1870, this Court invalidated under the Seventh Amendment post-judgment removal with respect to civil cases tried by a jury. The Justices v. Murray, 9 Wall. 274, 76 U.S. 274, 19 L.Ed. 658. See also McKee v. Rains, 10 Wall. 22, 77 S.Ct. 32, 10 L.Ed.2d 860.
26
See, e.g., § 14 of the amendatory Freedmen's Bureau Act of July 16, 1866, 14 Stat. 176, which re-enacted, in virtually identical terms for the unreconstructed Southern States the rights granted in § 1 of the Civil Rights Act of 1866, and provided for the enforcement of those rights under the jurisdiction of military tribunals. See also § 1 of the Reconstruction Act of March 2, 1867, 14 Stat. 428, which divided the rebel States into five military districts and placed them under martial law.
27
In 1874, a petition for removal could be filed in the state court in which proceedings were pending. Rev.Stat. § 641. If the state court denied removal, that determination could be preserved for review by this Court on review of the final judgment of conviction. An alternative procedure was also available. A petition could be filed in the federal trial court to which the state court had denied removal. See Com. of Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 664; Virginia v. Paul, 148 U.S. 107, 116, 13 S.Ct. 536, 37 L.Ed. 386. In 1948, removal procedure was simplified. The petition is now filed in the first instance in the federal court. After notice is given to all adverse parties and a copy of the petition is filed with the state court, removal is effected and state court proceedings cease unless the case is remanded. 28 U.S.C. § 1446 (1964 ed.). See generally, American Law Institute, Study of the Division of Jurisdiction Between State and Federal Courts, Tentative Draft No. 4, p. 153 et seq. (April 25, 1966).
28
Gibson v. State of Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075; Smith v. State of Mississippi, 162 U.S. 592, 16 S.Ct. 900, 40 L.Ed. 1082; Murray v. State of Louisiana, 163 U.S. 101, 16 S.Ct. 990, 41 L.Ed. 87; Williams v. State of Mississippi, 170 U.S. 213, 18 S.Ct. 583, 42 L.Ed. 1012. See also Dubuclet v. State of Louisiana, 103 U.S. 550, 26 L.Ed. 504; Schmidt v. Cobb, 119 U.S. 286, 7 S.Ct. 1373, 30 L.Ed. 321.
29
Since Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633, the federal courts have consistently applied the Strauder-Rives doctrine to deny removal in a variety of circumstances. See, e.g., Kentucky v. Wendling, 182
F. 140 (C.C.W.D.Ky.); White v. Keown, 261 F. 814 (D.C.D.Mass.); State of Ohio ex rel. Seney v. Swift & Co., 270 F. 141 (C.A.6th Cir.); New Jersey v. Weinberger, 38 F.2d 298 (D.C.D.N.J.); Snypp v. Ohio, 70 F.2d 535 (C.A.6th Cir.); Hull v. Jackson County Circuit Court, 138 F.2d 820 (C.A.6th Cir.); Steele v. Superior Court, 164 F.2d 781 (C.A.9th Cir.); Lanson v. Superior Court, 12 F.Supp. 812 (D.C.N.D.Cal.); People of State of California v. Lamson, 12 F.Supp. 813 (D.C.N.D.Cal.); State of Washington v. American Society of Composers, 13 F.Supp. 141 (D.C.W.D.Wash.); Bennett v. Roberts, 31 F.Supp. 825 (D.C.W.D.N.Y.); North Carolina v. Jackson, 135 F.Supp. 682 (D.C.M.D.N.C.); State of Texas v. Dorris, 165 F.Supp. 738 (D.C.S.D.Tex.); State of Louisiana v. Murphy, 173 F.Supp. 782 (D.C.W.D.La.); McDonald v. State of Oregon, 180 F.Supp. 861 (D.C.D.Ore.); Hill v. Com. of Pennsylvania, 183 F.Supp. 126 (D.C.W.D.Pa.); Rand v. State of Arkansas, 191 F.Supp. 20 (D.C.W.D.Ark.); Petition of Hagewood, 200 F.Supp. 140 (D.C.E.D.Mich.); Van Newkirk v. District Attorney, 213 F.Supp. 61 (D.C.E.D.N.Y.); City of Birmingham v. Croskey, 217 F.Supp. 947 (D.C.N.D.Ala.); State of Arkansas v. Howard, 218 F.Supp. 626 (D.C.E.D.Ark); State of Alabama v. Robinson, 220 F.Supp. 293 (D.C.N.D.Ala.); Levitt & Sons, Inc. v. Prince George County Congress of Racial Equality, 221 F.Supp. 541 (D.C.D.Md.); Olsen v. Doerfler, 225 F.Supp. 540 (D.C.E.D.Mich.).
30
As pointed out in the separate opinion of Judge Bell in the Court of Appeals for the Fifth Circuit, 342 F.2d 336, 343, 345, the Supreme Court of Georgia has in at least one case applied the doctrine of Hamm v. City of Rock Hill to set aside convictions under the state trespass statute. Bolton v. Georgia, 220 Ga. 632, 140 S.E.2d 866.
31
In addition to their racial allegation, the defendants must also show that the restaurant facilities in question were establishments covered by the Civil Rights Act of 1964.
1
Section 1 of the Civil Rights Act of 1866, 14 Stat. 27, is reproduced in note 9, supra.
2
The provisions of § 641 of the Revised Statutes of 1874 were carried forward as § 31 in the compilation of the Judicial Code of 1911, c. 231, 36 Stat. 1096. Aside from insignificant changes in punctuation, the only alteration introduced in 1911 was the substitution of 'district court' for 'circuit court' in the section. Section 31 was carried forward without change as § 74 of Title 28 of the United States Code, as codified in 1926. Section 74 became § 1443 in the revision of Title 28 in 1948.
| 89
|
384 U.S. 808
86 S.Ct. 1800
16 L.Ed.2d 944
The CITY OF GREENWOOD, MISSISSIPPI, Petitioner,v.Willie PEACOCK et al. Willie PEACOCK et al., Petitioners, v. The CITY OF GREENWOOD, MISSISSIPPI.
Nos. 471, 649.
Argued April 26, 1966.
Decided June 20, 1966.
[Syllabus from pages 808-809 intentionally omitted]
Hardy Lott, Greenwood, Miss., for petitioner in No. 471 and respondent in No. 649.
Benjamin E. Smith, New Orleans, La., for respondents in No. 471 and petitioners in No. 649.
Louis F. Claiborne, Washington, D.C., for United States, as amicus curiae, by special leave of Court.
Mr. Justice STEWART delivered the opinion of the Court.
1
These consolidated cases, sequels to State of Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925, involve prosecutions on various state criminal charges against 29 people who were allegedly engaged in the spring and summer of 1964 in civil rights activity in Leflore County, Mississippi. In the first case, 14 individuals were charged with obstructing the public streets of the City of Greenwood in violation of Mississippi law.1 They filed petitions to remove their cases to the United States District Court for the Northern District of Mississippi under 28 U.S.C. § 1443 (1964 ed).2 Alleging that they were members of a civil rights group engaged in a drive to encourage Negro voter registration in Leflore County, their petitions stated that they were denied or could not enforce in the courts of the State rights under laws providing for the equal civil rights of citizens of the United States, and that they were being prosecuted for acts done under color of authority of the Constitution of the United States and 42 U.S.C. § 1971 et seq. (1964 ed.).3 Additionally, their removal petitions alleged that the statute under which they were charged was unconstitutionally vague on its face, that it was unconstitutionally applied to their conduct, and that its application was a part of a policy of racial discrimination fostered by the State of Mississippi and the City of Greenwood. The District Court sustained the motion of the City of Greenwood to remand the cases to the city police court for trial. The Court of Appeals for the Fifth Circuit reversed, holding that 'a good claim for removal under § 1443(1) is stated by allegations that a state statute has been applied prior to trial so as to deprive an accused of his equal civil rights in that the arrest and charge under the statute were effected for reasons of racial discrimination.' Peacock v. City of Greenwood, 347 F.2d 679, 684. Accordingly, the cases were remanded to the District Court for a hearing on the truth of the defendants' allegations. At the same time, the Court of Appeals rejected the defendants' contentions under 28 U.S.C. § 1443(2), holding that removal under that subsection is available only to those who have acted in an official or quasi-official capacity under a federal law and who can therefore be said to have acted under 'color of authority' of the law within the meaning of that provision.4
2
In the second case, 15 people allegedly affiliated with a civil rights group were arrested at different times in July and August of 1964 and charged with various offenses against the laws of Mississippi or ordinances of the City of Greenwood.5 These defendants filed essentially identical petitions for removal in the District Court, denying that they had engaged in any conduct prohibited by valid laws and stating that their arrests and prosecutions were for the 'sole purpose and effect of harassing Petitioners and of punishing them for and deterring them from the exercise of their constitutionally protected right to protest the conditions of racial discrimination and segregation' in Mississippi. As grounds for removal, the defendants specifically invoked 28 U.S.C. §§ 1443(1)6 and 1443(2).7 The District Court held that the cases had been improperly removed and remanded them to the police court of the City of Greenwood. In a per curiam opinion finding the issues 'identical with' those determined in the Peacock case, the Court of Appeals for the Fifth Circuit reversed and remanded the cases to the District Court for a hearing on the truth of the defendants' allegations under § 1443(1). Weathers v. City of Greenwood, 347 F.2d 986.
3
We granted certiorari to consider the important questions raised by the parties concerning the scope of the civil rights removal statute. 382 U.S. 971, 86 S.Ct. 532, 15 L.Ed.2d 464.8 As in State of Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, we deal here not with questions of congressional power, but with issues of statutory construction.
I.
4
The individual petitioners contend that, quite apart from 28 U.S.C. § 1443(1), they are entitled to remove their cases to the District Court under 28 U.S.C. § 1443(2), which authorizes the removal of a civil action or criminal prosecution for 'any act under color of authority derived from any law providing for equal rights * * *.' The core of their contention is that the various federal constitutional and statutory provisions invoked in their removal petitions conferred 'color of authority' upon them to perform the acts for which they are being prosecuted by the State. We reject this argument, because we have concluded that the history of § 1443 (2) demonstrates convincingly that this subsection of the removal statute is available only to federal officers and to persons assisting such officers in the performance of their official duties.9
5
The progenitor of § 1443(2) was § 3 of the Civil Rights Act of 1866, 14 Stat. 27. Insofar as it is relevant here, that section granted removal of all criminal prosecutions 'commenced in any State court * * * against any officer, civil or military, or other person, for any arrest or imprisonment, trespasses, or wrongs done or committed by virtue or under color of authority derived from this act or the act establishing a Bureau for the relief of Freedmen and Refugees, and all acts amendatory thereof * * *.' (Emphasis added.)
6
The statutory phrase 'officer * * * or other person' characterizing the removal defendants in § 3 of the 1866 Act was carried forward without change through successive revisions of the removal statute until 1948, when the revisers, disavowing any substantive change, eliminated the phrase entirely.10 The definition of the persons entitled to removal under the present form of the statute is therefore appropriately to be read in the light of the more expansive language of the statute's ancestor. See Madruga v. Superior Court, 346 U.S. 556, 560, n. 12, 74 S.Ct. 298, 300, 98 l.Ed. 290; Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 227—228, 77 S.Ct. 787, 790—791, 1 L.Ed.2d 786.
7
In the context of its original enactment as part of § 3 of the Civil Rights Act of 1866, the statutory language 'officer * * * or other person' points squarely to the conclusion that the phrase 'or other person' meant persons acting in association with the civil or military officers mentioned in the immediately preceding words of the statute. That interpretation stems from the obvious contrast between the 'officer * * * or other person' phrase and the next preceding portion of the statute, the predecessor of the present § 1443(1), which granted removal to 'any * * * person' who was denied or could not enforce in the courts of the State his rights under § 1 of the 1866 Act. The dichotomy between 'officer * * * or other person' and 'any * * * person' in these correlative removal provisions persisted through successive statutory revisions until 1948, even though, were we to accept the individual petitioners' contentions, the two phrases would in fact have been almost entirely co-extensive.
8
It is clear that the 'other person' in the 'officer * * * or other person' formula of § 3 of the Civil Rights Act of 1866 was intended as an obvious reference to certain categories of persons described in the enforcement provisions, §§ 4—7, of the Act. 14 Stat. 28—29. Section 4 of the Act specifically charged both the officers and the agents of the Freedmen's Bureau,11 among others, with the duty of enforcing the Civil Rights Act. As such, those officers and agents were required to arrest and institute proceedings against persons charged with violations of the Act.12 By the 'color of authority' removal provision of § 3 of the Civil Rights Act, 'agents' who derived their authority from the Freedman's Bureau legislation would be entitled as 'other persons,' if not as 'officers,' to removal of state prosecutions against them based upon their enforcement activities under both the Freedmen's Bureau legislation and the Civil Rights Act.13 Section 5 of the Civil Rights Act, now 42 U.S.C. § 1989 (1964 ed.), specifically authorized United States commissioners to appoint 'one or more suitable persons' to execute warrants and other process issued by the commissioners.14 These 'suitable persons' were, in turn, specifically authorized 'to summon and call to their aid the bystanders or posse comitatus of the proper county.'15 Section 6 of the Act provided criminal penalties for any individual who obstructed 'any officer, or other person charged with the execution of any warrant or process issued under the provisions of this act, or any person or persons lawfully assisting him or them,' or who rescued or attempted to rescue prisoners 'from the custody of the officer, other person or persons, or those lawfully assisting.'16 Finally, § 7 of the Act, now 42 U.S.C. § 1991 (1964 ed.), awarded a fee of five dollars for each individual arrested by the 'person or persons authorized to execute the process'—i.e., the 'one or more suitable persons' of § 5. Thus, the enforcement provisions of the 1866 Act were replete with references to 'other persons' in context obviously relating to positive enforcement activity under the Act.17
9
The derivation of the statutory phrase 'For any act' in § 1443(2) confirms the interpretation that removal under this subsection is limited to federal officers and those acting under them. The phrase 'For any act' was substituted in 1948 for the phrase 'for any arrest or imprisonment or other trespasses or wrongs.' Like the 'officer * * * or other person' provision, the language specifying the acts on which removal could be grounded had, with minor changes, persisted until 1948 in the civil rights removal statute since its original introduction in the 1866 Act. The language of the original Civil Rights Act—' arrest or imprisonment, trespasses, or wrongs'—is pre-eminently the language of enforcement. The words themselves denote the very sorts of activity for which federal officers, seeking to enforce the broad guarantees of the 1866 Act, were likely to be prosecuted in the state courts. As the Court of Appeals for the Second Circuit has put it, "Arrest or imprisonment, trespasses, or wrongs,' were precisely the probable charges against enforcement officers and those assisting them; and a statute speaking of such acts 'done or committed by virtue of or under color of authority derived from' specified laws reads far more readily on persons engaged in some sort of enforcement than on those whose rights were being enforced * * *.' People of State of New York v. Galamison, 342 F.2d 255, 262.
10
The language of the 'color of authority' removal provision of § 3 of the Civil Rights Act of 1866 was taken directly from the Habeas Corpus Suspension Act of 1863, 12 Stat. 755, which authorized the President to suspend the writ of habeas corpus and precluded civil and criminal liability of any person making a search, seizure, arrest, or imprisonment under any order of the President during the rebellion.18 Section 5 of the 1863 Act provided for the removal of all suits or prosecutions 'against any officer, civil or military, or against any other person, for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or any act of Congress.' 12 Stat. 756. See Mayor v. Cooper, 6 Wall. 247, 18 L.Ed. 851; Phillips v. Gaines, 131 U.S.App. clxix. Since the 1863 Act granted no rights to private individuals, its removal provision was concerned solely with the protection of federal officers and persons acting under them in the performance of their official duties.19 Thus, at the same time that Congress expanded the availability of removal by enacting the 'denied or cannot enforce' clause in § 3 of the Civil Rights Act of 1866, it repeated almost verbatim in the 'color of authority' clause the language of the 1863 Act20 language that was clearly limited to enforcement activity by federal officers and those acting under them.21
11
For these reasons, we hold that the second subsection of § 1443 confers a privilege of removal only upon federal officers or agents and those authorized to act with or for them in affirmatively executing duties under any federal law providing for equal civil rights.22 Accordingly, the individual petitioners in the case before us had no right of removal to the federal court under 28 U.S.C. § 1443(2).
II.
12
We come, then, to the issues which this case raises as to the scope of 28 U.S.C. § 1443(1). In State of Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783 decided today, we have held that removal of a state court trespass prosecution can be had under § 1443(1) upon a petition alleging that the prosecution stems exclusively from the petitioners' peaceful exercise of their right to equal accommodation in establishments covered by the Civil Rights Act of 1964, § 201 et seq., 78 Stat. 243, 42 U.S.C. § 2000a et seq. (1964 ed.). Since that Act itself, as construed by this Court in Hamm v. City of Rock Hill, 379 U.S. 306, 310, 85 S.Ct. 384, 388, 13 L.Ed.2d 300, specifically and uniquely guarantees that the conduct alleged in the removal petition in Rachel may 'not be the subject of trespass prosecutions,' the defendants inevitably are 'denied or cannot enforce in the courts of (the) State a right under any law providing for * * * equal civil rights,' by merely being brought before a state court to defend such a prosecution. The present case, however, is far different.
13
In the first place, the federal rights invoked by the individual petitioners include some that clearly cannot qualify under the statutory definition as rights under laws provided for 'equal civil rights.' The First Amendment rights of free expression, for example, so heavily relied upon in the removal petitions, are not rights arising under a law providing for 'equal civil rights' within the meaning of § 1443(1). The First Amendment is a great charter of American freedom, and the precious rights of personal liberty it protects are undoubtedly comprehended in the concept of 'civil rights.' Cf. Hague v. C.I.O., 307 U.S. 496, 531 532, 59 S.Ct. 954, 971, 83 L.Ed. 1423 (separate opinion of Stone, J.). But the reference in § 1443(1) is to 'equal civil rights.' That phrase, as our review in Rachel of its legislative history makes clear, does not include the broad constitutional guarantees of the First Amendment.23 A precise definition of the limitations of the phrase 'any law providing for * * * equal civil rights' in § 1443(1) is not a matter we need pursue to a conclusion, however, because we may proceed here on the premise that at least the two federal statutes specifically referred to in the removal petitions, 42 U.S.C. § 1971 and 42 U.S.C. § 1981, do qualify under the statutory definition.24
14
The fundamental claim in this case, then, is that a case for removal is made under § 1443(1) upon a petition alleging: (1) that the defendants were arrested by state officers and charged with various offenses under state law because they were Negroes or because they were engaged in helping Negroes assert their rights under federal equal civil rights laws, and that they are completely innocent of the charges against them, or (2) that the defendants will be unable to obtain a fair trial in the state court. The basic difference between this case and Rachel is thus immediately apparent. In Rachel the defendants relied on the specific provisions of a pre-emptive federal civil rights law—ss 201(a) and 203(c) of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a(a) and 2000a—2(c) (1964 ed.), as construed in Hamm v. City of Rock Hill, supra—that, under the conditions alleged, gave them: (1) the federal statutory right to remain on the property of a restaurant proprietor after being ordered to leave, despite a state law making it a criminal offense not to leave, and (2) the further federal statutory right that no State should even attempt to prosecute them for their conduct. The Civil Rights Act of 1964 as construed in Hamm thus specifically and uniquely conferred upon the defendants an absolute right to 'violate' the explicit terms of the state criminal trespass law with the impunity under the conditions alleged in the Rachel removal petition, and any attempt by the State to make them answer in a court for this conceded 'violation' would directly deny their federal right 'in the courts of (the) State.' The present case differs from Rachel in two significant respects. First, no federal law confers an absolute right on private citizens—on civil rights advocates, on Negroes, or on anybody else—to obstruct a public street, to contribute to the delinquency of a minor, to drive an automobile without a license, or to bite a policeman. Second, no federal law confers immunity from state prosecution on such charges.25
15
To sustain removal of these prosecutions to a federal court upon the allegations of the petitions in this case would therefore mark a complete departure from the terms of the removal statute, which allow removal only when a person is 'denied or cannot enforce' a specified federal right 'in the courts of (the) State,' and a complete departure as well from the consistent line of this Court's decisions from Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664, to Commonwealth of Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633.26 Those cases all stand for at least one basic proposition: It is not enough to support removal under § 1443(1) to allege or show that the defendant's federal equal civil rights have been illegally and corruptly denied by state administrative officials in advance of trial, that the charges against the defendant are false, or that the defendant is unable to obtain a fair trial in a particular state court. The motives of the officers bringing the charges may be corrupt, but that does not show that the state trial court will find the defendant guilty if he is innocent, or that in any other manner the defendant will be 'denied or cannot enforce in the courts' of the State any right under a federal law providing for equal civil rights. The civil rights removal statute does not require and does not permit the judges of the federal courts to put their brethren of the state judiciary on trial. Under § 1443(1), the vindication of the defendant's federal rights is left to the state courts except in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court. State of Georgia v. Rachel, supra; Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664.
16
What we have said is not for one moment to suggest that the individual petitioners in this case have not alleged a denial of rights guaranteed to them under federal law. If, as they allege, they are being prosecuted on baseless charges solely because of their race, then there has been an outrageous denial of their federal rights, and the federal courts are far from powerless to redress the wrongs done to them. The most obvious remedy is the traditional one emphasized in the line of cases from Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667, to Commonwealth of Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633—vindication of their federal claims on direct review by this Court, if those claims have not been vindicated by the trial or reviewing courts of the State. That is precisely what happened in two of the cases in the Rives-Powers line of decisions, where removal under the predecessor of § 1443(1) was held to be unauthorized, but where the state court convictions were overturned because of a denial of the defendants' federal rights at their trials.27 That is precisely what has happened in countless cases this Court has reviewed over the years—cases like Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176, to name one at random decided in the present Term. 'Cases where Negroes are prosecuted and convicted in state courts can find their way expeditiously to this Court, provided they present constitutional questions.' England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 434, 84 S.Ct. 461, 475, 11 L.Ed.2d 440 (Douglas, J., concurring).
17
But there are many other remedies available in the federal courts to redress the wrongs claimed by the individual petitioners in the extraordinary circumstances they allege in their removal petitions. If the state prosecution or trial on the charge of obstructing a public street or on any other charge would itself clearly deny their rights protected by the First Amendment, they may under some circumstances obtain an injunction in the federal court. See Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. If they go to trial and there is a complete absence of evidence against them, their convictions will be set aside because of a denial of due process of law. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. If at their trial they are in fact denied any federal constitutional rights, and these denials go uncorrected by other courts of the State, the remedy of federal habeas corpus is freely available to them. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. If their federal claims at trial have been denied through an unfair or deficient fact-finding process, that, too, can be corrected by a federal court. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770.
18
Other sanctions, civil and criminal, are available in the federal courts against officers of a State who violate the petitioners' federal constitutional and statutory rights. Under 42 U.S.C. § 1983 (1964 ed.) the officers may be made to respond in damages not only for violations of rights conferred by federal equal civil rights laws, but for violations of other federal constitutional and statutory rights as well.28 Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492. And only this Term we have held that the provisions of 18 U.S.C. § 241 (1964 ed.), a criminal law that imposes punishment of up to 10 years in prison, may be invoked against those who conspire to deprive any citizen of the 'free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States' by 'causing the arrest of Negroes by means of false reports that such Negroes had committed criminal acts.'29 United States v. Guest, 383 U.S. 745, 756, 86 S.Ct. 1170, 1177, 16 L.Ed.2d 239.
19
But the question before us now is not whether state officials in Mississippi have engaged in conduct for which they may be civilly or criminally liable under federal law. The question, precisely, is whether the individual petitioners are entitled to remove these state prosecutions to a federal court under the provisions of 28 U.S.C. § 1443(1). Unless the words of this removal statute are to be disregarded and the previous consistent decisions of this Court completely repudiated, the answer must clearly be that no removal is authorized in this case. In the Rachel case, decided today, we have traced the course of those decisions against the historic background of the statute they were called upon to interpret. And in Rachel we have concluded that removal to the federal court in the narrow circumstances there presented would not be a departure from the teaching of this Court's decisions, because the Civil Rights Act of 1964, in those narrow circumstances, 'substitutes a right for a crime.' Hamm v. City of Rock Hill, 379 U.S. 306, 315, 85 S.Ct. 384, 391, 13 L.Ed.2d 300.
20
We need not and do not necessarily approve or adopt all the language and all the reasoning of every one of this Court's opinions construing this removal statute, from Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664, to Commonwealth of Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633. But we decline to repudiate those decisions, and we decline to do so not out of a blind adherence to the principle of stare decisis, but because after independent consideration we have determined, for the reasons expressed in this opinion and in Rachel, that those decisions were correct in their basic conclusion that the provisions of § 1443(1) do not operate to work a wholesale dislocation of the historic relationship between the state and the federal courts in the administration of the criminal law.
21
It is worth contemplating what the result would be if the strained interpretation of § 1443(1) urged by the individual petitioners were to prevail. In the fiscal year 1963 there were 14 criminal removal cases of all kinds in the entire Nation; in fiscal 1964 there were 43. The present case was decided by the Court of Appeals for the Fifth Circuit on June 22, 1965, just before the end of the fiscal year. In that year, fiscal 1965, there were 1,079 criminal removal cases in the Fifth Circuit alone.30 But this phenomenal increase is no more than a drop in the bucket of what could reasonably be expected in the future. For if the individual petitioners should prevail in their interpretation of § 1443(1), then every criminal case in every court of every State—on any charge from a five dollar misdemeanor to first-degree murder—would be removable to a federal court upon a petition alleging (1) that the defendant was being prosecuted because of his race31 and that he was completely innocent of the charge brought against him, or (2) that he would be unable to obtain a fair trial in the state court. On motion to remand, the federal court would be required in every case to hold a hearing, which would amount to at least a preliminary trial of the motivations of the state officers who arrested and charged the defendant, of the quality of the state court or judge before whom the charges were filed and of the defendant's innocence or guilt. And the federal court might, of course, be located hundreds of miles away from the place where the charge was brought. This hearing could be followed either by a full trial in the federal court, or by a remand order. Every remand order would be appealable as of right to a United States Court of Appeals and, if affirmed there, would then be reviewable by petition for a writ of certiorari in this Court. If the remand order were eventually affirmed, there might, if the witnesses were still available, finally be a trial in the state court, months or years after the original charge was brought. If the remand order were eventually reversed, there might finally be a trial in the federal court, also months or years after the original charge was brought.
22
We have no doubt that Congress, if it chose, could provide for exactly such a system. We may assume that Congress has constitutional power to provide that all federal issues be tried in the federal courts, that all be tried in the courts of the States, or that jurisdiction of such issues be shared.32 And in the exercise of that power, we may assume that Congress is constitutionally fully free to establish the conditions under which civil or criminal proceedings involving federal issues may be removed from one court to another.33
23
But before establishing the regime the individual petitioners propose, Congress would no doubt fully consider many questions. The Court of Appeals for the Fourth Circuit has mentioned some of the practical questions that would be involved: 'If the removal jurisdiction is to be expanded and federal courts are to try offenses against state laws, cases not originally cognizable in the federal courts, what law is to govern, who is to prosecute, under what law is a convicted defendant to be sentenced and to whose institution is he to be committed * * *?' Baines v. City of Danville, 357 F.2d 756, 768—769. To these questions there surely should be added the very practical inquiry as to how many hundreds of new federal judges and other federal court personnel would have to be added in order to cope with the vastly increased caseload that would be produced.
24
We need not attempt to catalog the issues of policy that Congress might feel called upon to consider before making such an extreme change in the removal statute. But prominent among those issues, obviously, would be at least two fundamental questions: Has the historic practice of holding state criminal trials in state courts—with power of ultimate review of any federal questions in this Court—been such a failure that the relationship of the state and federal courts should now be revolutionized? Will increased responsibility of the state courts in the area of federal civil rights be promoted and encouraged by denying those courts any power at all to exercise that responsibility?
25
We postulate these grave questions of practice and policy only to point out that if changes are to be made in the long-settled interpretation of the provisions of this century-old removal statute, it is for Congress and not for this Court to make them. Fully aware of the established meaning the removal statute had been given by a consistent series of decisions in this Court, Congress in 1964 declined to act on proposals to amend the law.34 All that Congress did was to make remand orders appealable, and thus invite a contemporary judicial consideration of the meaning of the unchanged provisions of 28 U.S.C. § 1443. We have accepted that invitation and have fully considered the language and history of those provisions. Having done so, we find that § 1443 does not justify removal of these state criminal prosecutions to a federal court. Accordingly the judgment of the Court of Appeals is reversed.
26
It is so ordered.
27
Judgment reversed.
28
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BRENNAN and Mr. Justice FORTAS concur, dissenting.
29
These state court defendants who seek the protection of the federal court were civil rights workers in Mississippi. Some were affiliated with the Student Non-Violent Coordinating Committee engaged in getting Negroes registered as voters. They were charged in the state courts with obstructing the public streets. Other defendants were civil rights workers affiliated with the Council of Federated Organizations which aims to achieve full and complete integration of Negroes into the political and economic life of Mississippi. Some alleged that, while peacefully picketing, they were arrested and charged with assault and battery or interfering with an officer. Others were charged with illegal operation of motor vehicles, or for contributing to the delinquency of a minor or parading without a permit. Some were charged with disturbing the peace or inciting a riot.
30
All sought removal, some alleging in their motions that the state prosecution was part and parcel of Mississippi's policy of racial segregation. Others alleged that they were wholly innocent, the state prosecutions being for the sole purpose of harassing them and of punishing them for exercising their constitutional rights to protest the conditions of racial discrimination and segregation. In all these cases the District Court remanded to the state courts. The Court of Appeals reversed (347 F.2d 679; 347 F.2d 986) holding that the allegations were sufficient to make out a case for removal and that hearings on the truth of the allegations were required.
31
I agree with that result. As I will show, the federal regime was designed from the beginning to afford some protection against local passions and prejudices by the important pretrial federal remedy of removal; and the civil rights legislation with which we deal supports the mandates of the Court of Appeals.
I.
32
The Federal District Courts were created by the First Congress (1 Stat. 73) which designated a few heads of jurisdiction for the District Courts (§ 9) and for the Circuit Courts (§ 11) some being concurrent with those of the state courts, others being exclusive. These categories of jurisdiction—later enlarged—were largely for the benefit of plaintiffs. There was concern that the rivalries, jealousies, and animosities among the States made necessary and appropriate the creation of a dual system of courts.
33
Lack of trust in some of the state courts for execution of federal laws was reflected in the First Congress that established the dual system. Thus Madison said:
34
'* * * a review of the constitution of the courts in many States will satisfy us that they cannot be trusted with the execution of the Federal laws. In some of the States, it is true, they might, and would be safe and proper organs of such a jurisdiction; but in others they are so dependent on State Legislatures, that to make the Federal laws dependent on them, would throw us back into all the embarrassments which characterized our former situation. In Connecticut the Judges are appointed annually by the Legislature and the Legislature is itself the last resort in civil cases.' 1 Ann.Cong. 813.
35
Though federal question jurisdiction was originally limited to a few classes of cases, the creation of diversity jurisdiction (§ 11, 1 Stat. 78) was a significant manifestation of this same feeling. As Chief Justice Marshall said in Bank of United States v. Deveaux, 5 Cranch 61, 87, 3 L.Ed. 38:
36
'The judicial department was introduced into the American constitution under impressions, and with views, which are too apparent not to be perceived by all. However true the fact may be, that the tribunals of the states will administer justice as impartially as those of the nation, to parties of every description, it is not less true that the constitution itself either entertains apprehensions on this subject, or views with such indulgence the possible fears and apprehensions of suitors, that it has established national tribunals for the decision of controversies between aliens and a citizen, or between citizens of different states.'
37
And see Martin v. Hunter's Lessee, 1 Wheat. 304, 347, 4 L.Ed. 97.
38
The alternative—the one India took—was to let the state courts be the arbiters of federal as well as state rights with ultimate review in the Federal Supreme Court. But the federal court system was the choice we made and those courts have functioned throughout our history. In the years since 1789, the jurisdiction of the federal courts where federal rights are in issue has been steadily expanded (see Hart & Wechsler, The Federal Courts and the Federal System 727—733 (1953)) particularly with the creation of a general 'federal question' jurisdiction in 1875. 18 Stat. 470.
39
While the federal courts were for the most part custodians of rights asserted by plaintiffs, from the very beginning they were also the haven of a restricted group of defendants as well. I refer to § 12 of the Judiciary Act of 1789, 1 Stat. 79, which permitted removal of cases from a state court to a federal court on the ground of diversity of citizenship. Thus from the very start we have had a removal jurisdiction for the protection of defendants on a partial parity with federal jurisdiction for protection of plaintiffs.
40
The power of a defendant to remove cases from a state court to a federal court was not greatly enlarged until passage of the first Civil Rights Act,1 § 3 of which provided:
41
'* * * the district courts of the United States, within their respective districts, shall have, exclusively of the courts of the several States, cognizance of all crimes and offences committed against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the first section of this act; and if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court, against any such person, for any cause whatsoever * * * such defendant shall have the right to remove such cause for trial to the proper district or circuit court in the manner prescribed by the 'Act relating to habeas corpus and regulating judicial proceedings in certain cases,' approved March three, eighteen hundred and sixty-three, and all acts amendatory thereof. * * *' (Emphasis added.)
42
With the coming of the Civil War it became plain that some state courts might be instruments for the destruction through harassment of guaranteed federal civil rights. We have seen this demonstrated in the flow of cases coming this way. But the minorities who are the subject of repression are not only those who espouse the cause of racial equality. Jehovah's Witnesses in many parts of the country have likewise felt the brunt of majoritarian control through state criminal administration. Before them were the labor union organizers. Before them were the Orientals. It is in this setting that the removal jurisdiction must be considered.
43
The removal laws passed from time to time have responded to two main concerns: First, a federal fact-finding forum is often indispensable to the effective enforcement of those guarantees against local action.2 The federal guarantee turns ordinarily upon contested issues of fact. Those rights, therefore, will be of only academic value in many areas of the country unless the facts are objectively found. Secondly, swift enforcement of the federal right is imperative if the guarantees are to survive and not be slowly strangled by long, drawn-out, costly, cumbersome proceedings which the Congress feared might result in some state courts. The delays of state criminal process, the perilous vicissitudes of litigation in the state courts, the onerous burdens on the poor and the indigent who usually espouse unpopular causes—these threaten to engulf the federal guarantees. It is in that light that 28 U.S.C. § 1443(1) should be read and construed.
II.
44
The critical words, so far as the present cases are concerned, are 'denied or cannot enforce in the courts or judicial tribunals' of the State or locality where they may be those rights which, in the most recent version of the removal statute,3 are characterized as those secured by 'any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof.'4
45
It is difficult to discern whether the Court ascribes different meanings to the words 'is denied' and 'cannot enforce' as used in the statute. In my view, it is essential that these two aspects of § 1443(1) be distinguished. The words 'is denied' refer to a present deprivation of rights while the language 'cannot enforce' has reference to an anticipated state court frustration of equal civil rights. Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667, and subsequent decisions of this Court which the majority discusees, were concerned with claims of the 'cannot enforce' variety.5 The Court dealt, in those cases, with the issue of unequal administration of justice in the process of jury selection. The concern was that removal might be permitted on merely a speculation that the state court would not, in the future, discharge its obligation to follow the 'law of the land.' Whatever the correctness of those decisions as to the 'cannot enforce' clause, they have no application whatever to a claim of a present denial of equal civil rights.
A.
46
A defendant 'is denied' his federal right when 'disorderly conduct' statutes, 'breach of the peace' ordinances. and the like are used as the instrument to suppress his promotion of civil rights. We know that such laws are sometimes used as a club against civil rights workers.6 Senator Dodd who was the floor manager for that part of the Civil Rights Act of 1964 which restored the right of appeal from an order remanding a removed case (§ 901, 78 Stat. 266, 28 U.S.C. § 1447(d) (1964 ed.)) stated:7
47
'I think cases to be tried in State courts in communities where there is a pervasive hostility to civil rights, and cases involving efforts to use the court process as a means of intimidation, ought to be removable under this section.'
48
The examples are numerous. First is the case of prosecution under a law which is valid on its face but applied discriminatorily.8 Second is a prosecution under, say, a trespass law for conduct which is privileged under federal law.9 Third is an unwarranted charge brought against a civil rights worker to intimidate him for asserting those rights,10 or to suppress or discourage their promotion. The present charges are initiated by prosecutors for the purpose, defendants allege, of deterring or punishing the exercise of equal civil rights. The Court of Appeals said: of equal civil rights through the unconstitutional application of a statute in situations which are not a part of the state judicial system but which, on the contrary, arise in the administration of a statute in the arresting and charging process.' 347 F.2d 679, 684. (Emphasis added.)
49
I agree with that conclusion.
50
There are two ways which § 1443(1) may be read, either of which leads to the conclusion that these cases are covered by the 'is denied' clause. As Judge Sobeloff said dissenting in Baines v. City of Danville, 4 Cir., 357 F.2d 756, 778, the clause in question may be paraphrased in either of the following ways:
51
'Removal is permissible by:
52
'(i) any person who is denied(,) or cannot enforce(,) in the courts of such State a right under any law * * *. 'or
53
'(ii) any person who is denied(,) or cannot enforce in the courts of such State(,) a right under any law * * *.'
54
If the latter construction is taken, a right 'is denied' by state action at any time—before, as well as during, a trial. I agree with Judge Sobeloff that this reading of the provisions is more in keeping with the spirit of 1866, for the remedies given were broad and sweeping:
55
'If a Negro's rights were denied by the actions of such state officer, the aggrieved party was permitted to have vindication in the federal court; either by filing an original claim or, if a prosecution had already been commenced against him, by removing the case to the federal forum.' Id., at 781.
56
Yet even if the 'is denied' clause is read more restrictively, the present cases constitute denials of federal civil rights 'in the courts' of the offending State within the meaning of § 1443(1), for the local judicial machinery is implicated even prior to actual trial by issuance of a warrant or summons, by commitment of the prisoner, or by accepting and filing the information or indictment. Initiation of an unwarranted judicial proceeding to suppress or punish the assertion of federal civil rights makes out a case of civil rights 'denied' within the meaning of § 1443(1). Prosecution for a federally protected act is punishment for that act. The cost of proceeding court by court until the federal right is vindicated is great. Restraint of liberty may be present; the need to post bonds may be present; the hire of a lawyer may be considerable; the gantlet of state court proceedings may entail destruction of a federal right through unsympathetic and adverse fact-findings that are in effect unreviewable. The presence of an unresolved criminal charge may hang over the head of a defendant for years.
57
In early 1964, for example, the Supreme Court of Mississippi affirmed convictions in harassment prosecutions arising out of the May 1961 Freedom Rides. See Thomas v. State, 252 Miss. 527, 160 So.2d 657; Farmer v. State, Miss., 161 So.2d 159; Knight v. State, 248 Miss. 850, 161 So.2d 521. More than another year was to pass before this Court reached and reversed those convictions.11 Thomas v. Mississippi, 380 U.S. 524, 85 S.Ct. 1327, 14 L.Ed.2d 265 (1965).
58
Continuance of an illegal local prosecution, like the initiation of a new one, can have a chilling effect on a federal guarantee of civil rights. We said in NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405, respecting some of these federal rights, that '(t)he threat of sanctions may deter their exercise almost as potently as the actual application of sanctions.' In a First Amendment context, we said: '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.' Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22. The latter case was a suit to enjoin a state prosecution. The present cases are close kin. For removal, if allowed, is equivalent to a plea in bar granted by a federal court to protect a federal right.
59
The threshold question—whether initiation of the state prosecution has 'denied' a federal right—is resolvable by the federal court on a hearing on the motion to remove. As noted, it is in substance a plea in bar to the prosecution, a plea grounded on federal law. If the motion is granted, the removed case is concluded at that stage, as a case of misuse of a state prosecution has been made out. Cf. O'Campo v. Hardisty, 9 Cir., 262 F.2d 621; De Busk v. Harvin, 5 Cir., 212 F.2d 143. In other words, the result of removal is not the transfer of the trial from the state to the federal courts in this type of case. If after hearing it does not appear that the state prosecution is being used to deny federal rights, the case is remanded for trial in the state courts. 28 U.S.C. § 1447(c) (1964 ed.). But the removal statute meanwhile serves a protective function. Filing of the petition removes the case and automatically stays further proceedings in the state court. 28 U.S.C. § 1446(e) (1964 ed.) Moreover, if the defendant is confined, the removal judge must, without awaiting a hearing, issue a writ to transfer the prisoner to federal custody, 28 U.S.C. § 1446(f) (1964 ed.), and he may then enlarge him on bail.
60
The Court holds in Rachel that a hearing must be held as to whether, in the particular case, the trespass prosecution constitutes a denial of equal civil rights. Inexplicably, no such hearing is to be held in the present cases. For reasons not clear, a baseless prosecution, designed to punish and deter the exercise of such federally protected rights as voting, is not seen by the majority to constitute a denial of equal civil rights. This seems to me to overlook two very important federal statutes. The first, 42 U.S.C. § 1981 (1964 ed.) (the present version of § 1 of the Civil Rights Act of 1866 to which the original removal statute referred), provides:
61
'All persons within the jurisdiction of the United States shall have the same right in every State * * * to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.'
62
The other, § 11(b) of the Voting Rights Act of 1965, 79 Stat. 443, 42 U.S.C. § 1973i(b) (1964 ed., Supp. I), provides:
63
'No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or * * * urging or aiding any person to vote or attempt to vote * * *.' Those sections make clear beyond debate that, if the defendants' allegations are true, these state prosecutions themselves constitute a denial of 'a right under any law providing for the equal civil rights of citizens.'12
B.
64
Defendants also allege that they 'cannot enforce' in the courts of Greenwood, the locality in which their cases are to be tried, their equal civil rights. This, unlike a claim of present denial of rights, rests on prediction of the future performance of the state courts; as such, it admittedly falls within the Rives-Powers doctrine. I agree with the majority that, in providing for appeal of remand orders in civil rights removal cases, Congress meant for us to reconsider that line of cases.13 Unlike the majority, however, I believe that those cases, to the extent that they limit removal to instances where the inability to enforce equal civil rights springs from a state statute or constitutional provision compelling the forbidden discrimination, should not be followed.14 That construction of § 1443(1) resulted, I think, from a misreading of the removal provisions of the Act of 1866.
65
I think that the words 'cannot enforce' should be construed in the spirit of 1866. Senator Lane speaking for the first Civil Rights Act said:15
66
'The State courts already have jurisdiction of every single question that we propose to give to the courts of the United States. Why then the necessity of passing the law? Simply because we fear the execution of these laws if left to the State courts. That is the necessity for this provision.'
67
Senator Trumbull, who was the Chairman of the Judiciary Committee and who managed the bill on the floor, many times reflected the same view. He stated that the person discriminated against 'should have authority to go into the Federal courts in all cases where a custom prevails in a State, or where there is a statute-law of the State discriminating against him.' Cong.Globe, 39th Cong., 1st Sess., 1759.
68
It was not the existence of a statute, he said, any more than the existence of a custom discriminating against the person that would authorize removal, but whether, in either case, it was probable that the state court would fail adequately to enforce the federal guarantees. Ibid.
69
The Black Codes were not the only target of this law. Vagrancy laws were another—laws fair on their face which were enforced so as to reduce free men to slaves 'in punishment of crimes of the slightest magnitude' (Id., at 1123), laws which declare men 'vagrants because they have no homes and because they have no employment' in order 'to retain them still in a state of real servitude.' Id., at 1151.
70
In my view, § 1443(1) requires the federal court to decide whether the defendant's allegation (that the state court will not fairly enforce his equal rights) is true.16 If the defendant is unable to demonstrate this inability to enforce his rights, the case is remanded to the state court. But if the federal court is persuaded that the state court indeed will not make a good-faith effort to apply the paramount federal law pertaining to 'equal civil rights,' then the federal court must accept the removal and try the case on the merits.
71
Such removal under the 'cannot enforce' clause would occur only in the unusual case. The courts of the States generally try conscientiously to apply the law of the land. To be sure, state court judges have on occasion taken a different view of the law than that which this Court ultimately announced. But these honest differences of opinion are not the sort of recalcitrance which the 'cannot enforce' clause contemplates. What Congress feared was the exceptional situation. It realized that considerable damage could be done by even a single court which harbored such hostility toward federally protected civil rights as to render it unable to meet its responsibilities. The 'cannot enforce' clause is directed to that rare case.
72
Execution of the legislative mandate calls for particular sensitivity on the part of federal district judges; but the delicacy of the task surely does not warrant refusal to attempt it. I am confident that the federal district judges would exercise care and good judgment in passing on 'cannot enforce' claims. A district judge could not lightly assume that the state court would shirk its responsibilities, and should remand the case to the state court unless it appeared by clear and convincing evidence that the allegations of an inability to enforce equal civil rights were true. Cf. Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial, 113 U.Pa.L.Rev. 793, 854—863, 911—912 (1965). A requirement that defendants seeking removal demonstrate a basis for 'firm prediction' of inability to enforce equal civil rights in the state court is the only necessary consequence of the revision of 1874 which silently deleted the provision for post-trial removal from the statute. In this way, the legitimate interests of federalism which Rives sought to protect would be respected without emasculating this statute.
III.
73
The Court takes considerable comfort from the availability to defendants of numerous other federal remedies, such as direct review in this Court, federal habeas corpus, civil actions under 42 U.S.C. § 1983 (1964 ed.), and even federal criminal prosecutions. But it is relevant to note when these alternative remedies were conferred. The extension of the habeas corpus remedy to state prisoners was enacted in 1867 by the Thirty-ninth Congress, the same body which enacted the removal statute we here consider. 14 Stat. 385. The criminal statutes involved in our recent decisions in United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267, and United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239, were first enacted in 1866 and 1870. 14 Stat. 27; 16 Stat. 141, 144. The civil remedy provided by 42 U.S.C. § 1983 was enacted in 1871. 17 Stat. 13. If any inference is to be drawn from the existence of these coordinate remedies, it is that Congress was concerned, at the time this removal statute was passed, to protect from state court denial the equal civil rights of United States citizens. Rather than take comfort from the broad array of possible remedies, we should take instruction from it.
74
Moreover, the Court's many rhetorical questions respecting implementation of removal, if it were allowed, are answered in State of Tennessee v. Davis, 100 U.S. 257, 271—272, 25 L.Ed. 648, a case decided the same day as Rives:
75
'The imaginary difficulties and incongruities supposed to be in the way of trying in the Circuit Court an indictment for an alleged offence against the peace and dignity of a State, if they were real, would be for the consideration of Congress. But they are unreal. While it is true there is neither in sect. 643, nor in the act of which it is a re-enactment, any mode of procedure in the trial of a removed case prescribed, except that it is ordered (that) the cause when removed shall proceed as a cause originally commenced in that court, yet the mode of trial is sufficiently obvious. The circuit courts of the United States have all the appliances which are needed for the trial of any criminal case. They adopt and apply the laws of the State in civil cases, and there is no more difficulty in administering the State's criminal law. They are not foreign courts. The Constitution has made them courts within the States to administer the laws of the States in certain cases; and, so long as they keep within the jurisdiction assigned to them, their general powers are adequate to the trial of any case. The supposed anomaly of prosecuting offenders against the peace and dignity of a State, in tribunals of the general government, grows entirely out of the division of powers between that government and the government of a State; that is, a division of sovereignty over certain matters. When this is understood (and it is time it should be), it will not appear strange that, even in cases of criminal prosecutions for alleged offences against a State, in which arises a defence under United States law, the general government should take cognizance of the case and try it in its own courts, according to its own forms of proceeding.' (Emphasis added.)
IV.
76
The federal court in a removal case plainly must act with restraint. But to deny relief in the cases now before us is, in view of the allegations made, to aggravate a wrong by compelling these defendants to suffer the risk of an unwarranted trial and by allowing them to be held under improper charges and in prison, if the State desires, for an extended period pending trial. The risk that the state courts will not promptly dismiss the prosecutions was the congressional fear. The Court Defeats that purpose by giving a narrow, cramped meaning to § 1443(1). These defendants' federal civil rights may, of course, ultimately be vindicated if they persevere, live long enough, and have the patience and the funds to carry their cases for some years through the state courts to this Court. But it was precisely that burden that Congress undertook to take off the backs of this persecuted minority and all who espouse the cause of their equality.
1
The defendants were charged with violating paragraph one of § 2296.5 of the Mississippi Code (1964 Cum.Supp.), Laws 1960, c. 244, § 1, which provides: 'It shall be unlawful for any person or persons to wilfully obstruct the free, convenient and normal use of any public sidewalk, street, highway, alley, road, or other passageway by impeding, hindering, stifling, retarding or restraining traffic or passage thereon, and any person or persons violating the provisions of this act shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not more than five hundred dollars ($500.00) or by confinement in the county jail not exceeding six (6) months, or by both such fine and imprisonment.'
2
'Civil rights cases.
'Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
'(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;
'(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.' 28 U.S.C. § 1443 (164 ed.). See State of Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783.
3
The removal petitions specifically invoked rights to freedom of speech, petition, and assembly under the First and fourteenth Amendments to the Constitution, as well as additional rights under the Equal Protection, Due Process, and Privileges and Immunities Clauses of the Fourteenth Amendment. 42 U.S.C. § 1971(a)(1) (1964 ed.), which guarantees the right to vote, free from racial discrimination, provides:
'All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.'
42 U.S.C. § 1971(b) (1964 ed.) provides:
'No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any otehr person for the purpose of interfering with the right of such other person to vote or to vote as he may choose * * *.'
See also § 11(b) of the Voting Rights Act of 1965, 79 Stat. 443, 42 U.S.C. § 1973i(b) (1964 ed., Supp. I).
4
'* * * § 1443(2) * * * is limited to federal officers and those assisting them or otherwise acting in an official or quasi-official capacity.' Peacock v. City of Greenwood, 347 F.2d 679, 686 (C.A.5th Cir.). In reaching this conclusion, the Court of Appeals relied strongly on the decision of the district Court in City of Clarksdale v. Gertge, 237 F.Supp. 213 (D.C.N.D.Miss.). The Court of Appeals for the Fourth Circuit has also adopted this construction of § 1443(2). Baines v. City of Danville, 357 F.2d 756, 771—772. The Courts of Appeals for the Second and Third Circuits have refused to grant removal under § 1443(2) on allegations comparable to those in the present case. People of State of New York v. Galamison, 342 F.2d 255 (C.A.2d Cir.); City of Chester v. Anderson, 347 F.2d 823 (C.A.3d Cir.). See also State of Arkansas v. Howard, 218 F.Supp. 626 (D.C.E.D.Ark.).
5
The several defendants were charged variously with assault, interfering with an officer in the performance of his duty, disturbing the peace, creating a disturbance in a public place, inciting to riot, parading without a permit, assault and battery by biting a police officer, contributing to the delinquency of a minor, operating a motor vehicle with improper license tags, reckless driving, and profanity and use of vulgar language.
6
Under § 1443(1), the defendants alleged that they had been denied and could not enforce in the courts of the State rights under laws providing for equal civil rights, in that the courts and law enforcement officers of the State were prejudiced against them because of their race or their association with Negroes, and because of the commitment of the courts and officers to the State's declared policy of racial segregation. The defendants also alleged that the trial would take place in a segregated courtroom, that Negro witnesses and attorneys would be addressed by their first names, that Negroes would be excluded from the juries, and that the judges and prosecutors who would participate in the trial had gained office at elections in which negro voters were excluded. The defendants also urged that the statutes and ordinances under which they were charged were unconstitutionally vague on their face, and that the statutes and ordinances were unconstitutional as applied to the defendants' conduct.
7
Under § 1443(2), the defendants alleged that they had engaged solely in conduct protected by the First Amendment, by the Equal Protection, Due Process, and Privileges and Immunities Clauses of the Fourteenth Amendment, and by 42 U.S.C. § 1981 (1964 ed.), which provides:
'All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.'
8
The City of Greenwood, petitioner in No. 471, challenges the Court of Appeals' interpretation of § 1443(1); the individual petitioners in No. 649 challenge the court's interpretation of § 1443(2).
9
The provisions of what is now § 1443(2) have never been construed by this Court during the century that has passed since the law's original enactment. The courts of appeals that have recently given consideration to the subsection have unanimously rejected the claims advanced in this case by the individual petitioners. See, in addition to the present case in the Fifth Circuit, 347 F.2d 679, the following cases: People of State of New York v. Galamison, 342 F.2d 255 (C.A.2d Cir.); City of Chester v. Anderson, 347 F.2d 823 (C.A.3d Cir.); Baines v. City of Danville, 357 F.2d 756 (C.A.4th Cir.). See note 4, supra.
10
See Rev.Stat. § 641 (1874); Judicial Code of 1911, c. 231, § 31, 36 Stat. 1096; 28 U.S.C. § 74 (1926 ed.); 28 U.S.C. § 1443 (1952 ed.). Although the 1948 revision modified the language of the prior provision in numerous respects, including the elimination of the phrase 'officer * * * or other person,' the reviser's note states simply that 'Changes were made in phraseology.' H.R.Rep.No. 308, 80th Cong., 1st Sess., p. A134. The statutory development of the civil rights removal provision is set out in the Appendix to the Court's opinion in State of Georgia v. Rachel, supra.
11
By the Act of March 3, 1865, 13 Stat. 507, Congress established a Bureau under the War Department, to last during the rebellion and for one year thereafter, to assist refugees and freedmen from rebel states and other areas by providing food, shelter, and clothing. The Bureau was under the direction of a commissioner appointed by the President with the consent of the Senate. Under § 4 of the Act, the commissioner was authorized to set apart for loyal refugees and freedmen up to 40 acres of lands that had been abandoned in the rebel states or that had been acquired by the United States by confiscation or sale. The section specifically provided that persons assigned to such lands 'shall be protected in the use and enjoyment of the land.' 13 Stat. 508. The Act was continued for two years by the Act of July 16, 1866, c. 200, § 1, 14 Stat. 173. In addition, § 3 of the latter Act amended the 1865 Act to authorize the commissioner to 'appoint such agents, clerks, and assistants as may be required for the proper conduct of the bureau.' The section also provided that military officers or enlisted men might be detailed for service and assigned to duty under the Act. 14 Stat. 174. Further, § 13 of the amendatory Act of 1866 specifically provided that 'the commissioner of this bureau shall at all times co-operate with private benevolent associations of citizens in aid of freedmen, and with agents and teachers, duly accredited and appointed by them, and shall hire or provide by lease buildings for purposes of education whenever such associations shall, without cost to the government, provide suitable teachers and means of instruction; and he shall furnish such protection as may be required for the safe conduct of such schools.' 14 Stat. 176. Section 14 of the amendatory Act of 1866 established, in essentially the same terms for States where the ordinary course of judicial proceedings had been interrupted by the rebellion, the rights and obligations that had already been enacted in § 1 of the Act of April 9, 1866 (the Civil Rights Act), and provided for the extension of military jurisdiction to those States in order to protect the rights secured. 14 Stat. 176—177. By the Act of July 6, 1868, 15 Stat. 83, the Freedmen's Bureau legislation was continued for an additional year.
12
'Sec. 4. And be it further enacted, That * * * the officers and agents of the Freedmen's Bureau * * * shall be, and they are hereby, specially authorized and required, at the expense of the United States, to institute proceedings against all and every person who shall violate the provisions of this act, and cause him or them to be arrested and imprisoned, or bailed, as the case may be, for trial before (the circuit) court of the United States or territorial court as by this act has cognizance of the offence.' Act of April 9, 1866, 14 Stat. 28.
The same authorization was extended to district attorneys, marshals, and deputy marshals of the United States, and to commissioners appointed by the circuit and territorial courts of the United States. In order to expedite the enforcement of the Act, § 4, also authorized the circuit courts of the United States and superior territorial courts to increase the number of commissioners charged with the duties of enforcing the Act.
13
Section 3 of the Civil Rights Act of 1866 provided for removal by any 'officer * * * or other person' for acts under color of authority derived either from the Act itself or from the Freedmen's Bureau legislation. See p. 815, supra. Thus, removal was granted to officers and agents of the Freedmen's Bureau for enforcement activity under both Acts. The Civil Rights Act, however, made no specific provision for removal of actions against freedmen and refugees who had been awarded abandoned or confiscated lands under § 4 of the Freedmen's Bureau Act. See note 11, supra.
14
Section 5 also provided that, 'should any marshal or deputy marshal refuse to receive such warrant or other process when tendered, or to use all proper means diligently to execute the same, he shall, on conviction thereof, be fined in the sum of one thousand dollars, to the use of the person upon whom the accused is alleged to have committed the offence.' 14 Stat. 28. The Civil Rights Act of 1866 was passed over the veto of President Johnson. Because of the hostility between Congress and the President, it was feared that the United States marshals, who were appointed by the President, would not enforce the law. In § 5, therefore, Congress provided severe penalties for recalcitrant marshals. At the same time Congress ensured the availability of process servers by providing for the appointment by the commissioners of other 'suitable persons' for the task of enforcing the new Act. Cf. In re Upchurch, 38 F. 25, 27 (C.C.E.D.N.C.).
15
Section 5 of the Civil Rights Act of 1866 provided:
'* * * And the better to enable the said commissioners to execute their duties faithfully and efficiently, in conformity with the Constitution of the United States and the requirements of this act, they are hereby authorized and empowered, within their counties respectively, to appoint, in writing, under their hands, any one or more suitable persons from time to time, to execute all such warrants and other process as may be issued by them in the lawful performance of their respective duties; and the persons so appointed to execute any warrant or process as aforesaid shall have authority to summon and call to their aid the bystanders or posse comitatus of the proper county, or such portion of the land or naval forces of the United States, or of the militia, as may be necessary to the performance of the duty with which they are charged, and to insure a faithful observance of the clause of the Constitution which prohibits slavery, in conformity with the provisions of this act; and said warrants shall run and be executed by said officers anywhere in the State or Territory within which they are issued.' Act of April 9, 1866, 14 Stat. 28. Cf. Davis v. State of South Carolina, 107 U.S. 597, 600, 2 S.Ct. 636, 639, 27 L.Ed. 574.
16
This aspect of § 6 thus draws a threefold distinction: 'officers,' 'other persons' (probably the 'one or more suitable persons' referred to in § 5), and those 'lawfully assisting' them. We have no doubt that the general 'officer * * * or other person' language in § 3 of the Act comprehended all three of these categories.
17
'It thus appears that the statute contemplated that literally thousands of persons would be drawn into its enforcement and that some of them otherwise would have little or no appearance of official authority.' Baines v. City of Danville, 357 F.2d 756, 760 (C.A.4th Cir.). No support for the proposition that 'other person' includes private individuals not acting in association with federal officers can be drawn from the fact that the 'color of authority' provision of the Civil Rights Act of 1866 was carried forward together with the 'denied or cannot enforce' provision as § 641 of the Revised Statutes of 1874, whereas other removal provisions applicable to federal officers and persons assisting them were carried forward in § 643. Prior to 1948 the federal officer removal statute, as here relevant, was limited to revenue officers engaged in the enforcement of the criminal or revenue laws. The provision was expanded in 1948 to encompass all federal officers. See 28 U.S.C. § 1442(a)(1) (1964 ed.). At the present time, all state suits or prosecutions against 'Any officer of the United States * * * or person acting under him, for any act under color of such office' may be removed. Thus many, if not all, of the cases presently removable under § 1443(2) would now also be removable under § 1442(a)(1). The present overlap between the provisions simply reflects the separate historical evolution of the removal provision for officers in civil rights legislation. Indeed, there appears to be redundancy even within § 1442(a)(1) itself. See Wechsler, Federal Jurisdiction and
the Revision of the Judicial Code, 13 Law & Contemp.Prob. 216, 221, n. 18 (1948).
The limitation of 28 U.S.C. § 1443(2) to official enforcement activity under federal equal civil rights laws draws support from analogous provisions in the removal statutes available to federal revenue officers. Long before 1866, federal statutes had guaranteed certain federal revenue officers the right to remove to the federal court state court proceedings instituted against them because of their official actions. These statutes characteristically used the 'officer * * * or other person' formula in defining those entitled to the benefit of removal. The Customs Act of 1815, the primordial officer removal statute, described the 'other person' as one 'aiding or assisting' the revenue officer. Act of Feb. 4, 1815, c. 31, § 8, 3 Stat. 198. See also the Act of March 3, 1815, c. 94, § 6, 3 Stat. 233. The removal clause of a subsequent statute, the Force Act of 1833, was less specific with regard to the scope of the 'other person' language, but it focused upon the possibility that persons other than federal officers or their deputies might find themselves faced with the prospect of defending titles claimed under the federal revenue laws against suits or prosecutions in state courts. Act of March 2, 1833, c. 57, § 3, 4 Stat. 633. Thus, when Congress desired to grant removal of suits and prosecutions against private individuals, it knew how to make specific provision for it. Cf. Act of Jan. 22, 1869, 15 Stat. 267 (Habeas Corpus Suspension Act of 1863, 12 Stat. 755, amended to permit removal of suits or prosecutions against carriers for losses caused by rebel or Union forces).
18
Act of March 3, 1863, c. 81, §§ 1, 4, 12 Stat. 755, 756. See also the amendatory Act of May 11, 1866, 14 Stat. 46.
19
The provision in § 5 of the Act of March 3, 1863, specifically extending removal to criminal as well as civil proceedings, was added on the Senate floor. Cong.Globe, 37th Cong., 3d Sess., 538. The debates focused on the need to protect federal officers against state criminal prosecutions. See, e.g., id., at 535 (remarks of Senator Clark); id., at 537—538 (remarks of Senator Cowan).
20
Although, in the revenue officer removal provision of the Revenue Act of 1866, Act of July 13, c. 184, § 67, 14 Stat. 171, Congress expressly characterized the 'other person' as one 'acting under or by authority of any (revenue) officer,' that statute obviously drew on the comparable characterization of the 'other person' in the Customs Act of 1815, supra, note 17. And the 'title' clause included in the 1866 revenue officer removal provision was obviously derived from the Force Act of 1833, supra, note 17. Thus, the same legislative inertia that led the Reconstruction Congress not to qualify 'other person' in the Civil Rights Act of 1866 also led it to retain such a qualification in the revenue officer removal provision enacted later the same year. Compare § 16 of the Act of February 28, 1871, 16 Stat. 438 ('title' clause included in the officer removal provision of a civil rights statute). Cf. City of Philadelphia v. Collector, 5 Wall. 720, 18 L.Ed. 614; The Assessors v. Osbornes, 9 Wall. 567, 19 L.Ed. 748.
21
The language 'arrest or imprisonment, trespasses, or wrongs' is, of course, easily read as describing the full range of enforcement activities in which federal officers might be engaged under the Civil Rights Act. In a case arising under § 5 of the Habeas Corpus Suspension Act of 1863, this Court disallowed removal of an action of ejectment brought in a Virginia state court by the heir of a Confederate naval officer whose land had been seized under the Confiscation Act of July 17, 1862, 12 Stat. 589. The confiscated land had been sold at public auction, and the rights to the land subsequently vested in a man named Bigelow, against whom the action of ejectment was brought. In denying removal under § 5 of the 1863 Act, Mr. Justice Strong for a unanimous Court stated, 'The specification (in § 5) of arrests and imprisonments * * * followed by more general words, justifies the inference that the other trespasses and wrongs mentioned are trespasses and wrongs ejusdem generis, or of the same nature as those which had been previously specified.' Bigelow v. Forrest, 9 Wall. 339, 348—349, 19 L.Ed. 696.
22
The second phrase of 28 U.S.C. § 1443(2), 'for refusing to do any act on the ground that it would be inconsistent with such law,' has no relevance to this case. It is clear that removal under that language is available only to state officers. The phrase was added by the House of Representatives as an amendment to the Senate bill during the debates on the Civil Rights Act of 1866. In reporting the House bill, Representative Wilson, the chairman of the House Judiciary Committee and the floor manager of the bill, said, 'I will state that this amendment is intended to enable State officers, who shall refuse to enforce State laws discriminating in reference to (the rights created by § 1 of the bill) on account of race or color, to remove their cases to the United States courts when prosecuted for refusing to enforce those laws.' Cong. Globe, 39th Cong., 1st Sess., 1367.
23
See State of Georgia v. Rachel, ante, 384 U.S. at 788 792, 86 S.Ct. at 1788—1790. See also, People of State of New York v. Galamison, 342 F.2d 255, 266—268 (C.A.2d Cir.).
24
See note 3 and note 7, supra.
25
Section 203(c) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a—2(c) (1964 ed.), the provision involved in Hamm v. City of Rock Hill, 379 U.S. 306, 310, 85 S.Ct. 384, 388, 13 L.Ed.2d 300, and State of Georgia v. Rachel, 384 U.S. at 793—794, 804—805, 86 S.Ct. at 1790—1791, 1796—1797, explicitly provides that no person shall 'punish or attempt to punish any person for exercising or attempting to exercise any right or privilege' secured by the public accommodations section of the Act. None of the federal statutes invoked by the defendants in the present case contains any such provision. See note 3 and note 7, supra.
26
See also Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667; Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567; Bush v. Commonwealth of Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354; Gibson v. State of Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075; Smith v. State of Mississippi, 162 U.S. 592, 16 S.Ct. 900, 40 L.Ed. 1082; Murray v. State of Louisiana, 163 U.S. 101, 16 S.Ct. 990, 41 L.Ed. 87; Williams v. State of Mississippi, 170 U.S. 213, 18 S.Ct. 583, 42 L.Ed. 1012; Dubuclet v. State of Louisiana, 103 U.S. 550, 26 L.Ed. 504; Schmidt v. Cobb, 119 U.S. 286, 7 S.Ct. 1373, 30 L.Ed. 321. Cf. State of Georgia v. Rachel, 384 U.S. at 797 et seq., 86 S.Ct. at 1793 et seq.
27
Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567; Bush v. Commonwealth of Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354.
28
'Civil action for deprivation of rights.
'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.' 42 U.S.C. § 1983 (1964 ed.).
29
'Conspiracy against rights of citizens.
'If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
'If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
'They shall be fined not more than $5,000 or imprisoned not more than ten years, or both.' 18 U.S.C. § 241 (1964 ed.).
Criminal penalties for violations of federal rights are also imposed by 18 U.S.C. § 242 (1964 ed.), which provides:
'Deprivation of rights under color of law.
'Whoever, under color of any law, statute, ordinance, regulation or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both.' See United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267.
30
Annual Report of the Director of the Administrative Office of the United States Courts 214, 216 (1965). See State of Georgia v. Rachel, 384 U.S. p. 788, 86 S.Ct. p. 1788, n. 8.
31
Such removal petitions could, of course, be filed not only by Negroes, but also by members of the Caucasian or any other race.
32
See Romero v. International Terminal Operating Co., 358 U.S. 354, 359—380; 389—412, 79 S.Ct. 468, 473—484, 489—500, 3 L.Ed.2d 368 (separate opinion of Mr. Justice Brennan).
33
See Martin v. Hunter's Lessee, 1 Wheat. 304, 348—350, 4 L.Ed. 97; The Moses Taylor, 4 Wall. 411, 428—430, 18 L.Ed. 397; Mayor v. Cooper, 6 Wall. 247, 251—254, 18 L.Ed. 851; Railway Co. v. Whitton's Adm'r, 13 Wall. 270, 287—290, 20 L.Ed. 571; State of Tennessee v. Davis, 100 U.S. 257, 262—271, 25 L.Ed. 648; Strauder v. State of West Virginia, 100 U.S. 303, 310—312, 25 L.Ed. 664. A number of bills enlarging the right of removal to a federal court in civil rights cases are before the present Congress. See, for example: S. 2923, S. 3170, H.R. 12807, H.R. 12818, H.R. 12845, H.R. 13500, H.R. 13941, H.R. 14112, H.R. 14113, H.R. 14770, H.R. 14775, H.R. 14836 (89th Cong., 2d. Sess.).
34
Section 903 of H.R. 7702, 88th Cong., 1st Sess., would have amended 28 U.S.C. § 1443 to enlarge the availability of removal in civil rights cases. H.R. 7702, however, did not emerge from the Judiciary Committee of the House of Representatives. Cf. State of Georgia v. Rachel, 384 U.S. p. 787, 86 S.Ct. p. 1787, n. 7.
1
Act of April 9, 1866, 14 Stat. 27. There were a handful of other removal statutes passed in the interim. See, e.g., Act of February 4, 1815, § 8, 3 Stat. 198 (removal of civil and criminal actions against federal customs officers for official acts); Act of March 2, 1833, § 3, 4 Stat. 633 (removal of civil and criminal actions against federal officers on account of acts done under the revenue laws), see State of Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648; Act of March 3, 1863, § 5, 12 Stat. 756 (removal of civil and criminal actions against federal officers—civil or military—for acts done during the existence of the Civil War under color of federal authority).
2
Madison, whose views on the establishment of the federal court system prevailed, said in the debates:
'(U)nless inferior tribunals were dispersed throughout the republic * * * appeals would be multiplied to a most oppressive degree; that, besides, an appeal would not in many cases be a remedy. What was to be done after improper verdicts, in state tribunals, obtained under the biased directions of a dependent judge, or the local prejudices of an undirected jury? To remand the cause for a new trial would answer no purpose. * * * An effective judiciary establishment, commensurate to the legislative authority, was essential. A government without a proper executive and judiciary would be the mere trunk of a body, without arms or legs to act or move.' 5 Elliot's Debates 159 (1876).
His victory 'destroyed the ability of the states to sabotage the Union through their judiciary systems.' 3 Brant, James Madison 42 (1950). Cf. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 416—417, 84 S.Ct. 461, 465, 11 L.Ed. 440.
3
28 U.S.C. § 1443 (1964 ed.) provides:
'Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
'(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;
'(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.'
4
Whatever the full reach of the statutory language 'any law providing for the equal civil rights of citizens,' the wrongs of which these defendants and those in Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925, complain (with the possible exception of pure First Amendment claims) are well within its coverage. See e.g., 42 U.S.C. §§ 1971, 1973i(b) (1964 ed. & Supp. I) (statutes adopted under Congress' power to assure equal access to the vote to all citizens, regardless of 'race, color, or previous condition of servitude,' U.S.Const. Amendment XV); 42 U.S.C. § 1981 (1964 ed.) (guaranteeing all persons the right not to be subjected to 'punishment, pains, penalties * * * (or) exactions' not suffered in like circumstances by 'white citizens'); 42 U.S.C. §§ 2000a, 2000a—2 (1964 ed.) (discussed in State of Georgia v. Rachel, supra). I doubt that any meaningful distinction could be drawn for removal purposes between, for example, rights secured by 42 U.S.C. § 1981 and those guaranteed by the Equal Protection Clause, which largely reiterated § 1981 in constitutional terms. But it is unnecessary, on my view of these cases, to settle this question. I therefore do not reach the highly questionable propositions relied upon by the majority in restricting the scope of the rights which § 1443(1) encompasses.
5
Strictly speaking, the Court in Virginia v. Rives, supra, drew no distinction between the 'is denied' and the 'cannot enforce' clauses. It is clear, if only in retrospect, that the Court was there concerned solely with a claim of an anticipated inability to enforce equal civil rights because of the state court's tolerance of the exclusion of Negroes from the jury. The Court held that pretrial removal could not reach 'a judicial (as opposed to a legislative) infraction of the constitutional inhibitions, after trial or final hearing has commenced.' 100 U.S., at 319. Fairly read, Rives applies only to claims for removal arising under the 'cannot enforce' clause of § 1443(1).
6
See, e.g., Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697; Henry v. City of Rock Hill, 376 U.S. 776, 84 S.Ct. 1042, 12 L.Ed.2d 79 (per curiam); Cox v. State of Louisiana, 379 U.S. 536, 559, 85 S.Ct. 453, 476, 13 L.Ed.2d 471, 487; Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176.
7
110 Cong.Rec. 6955 (1964).
8
Administration of a law which appears fair on its face violates the Equal Protection Clause if done in a way which is racially discriminatory (Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220) or which prefers the proponents of certain ideas over others (Niemotko v. State of Maryland, 340 U.S. 268, 272, 71 S.Ct. 325, 327, 95 L.Ed. 267; Cox v. State of Louisiana, supra, 379 U.S. at 553—558, 85 S.Ct. at 463—466; and see id., at 580—581, 85 S.Ct. at 469—470 (Black, J., concurring)). Both standards combine in the case of discriminatory enforcement directed against civil rights demonstrators. And see 42 U.S.C. § 1981 (1964 ed.)
9
See, e.g., Hamm v. City of Rock Hill, 379 U.S. 306, 310, 85 S.Ct. 384, 388, 13 L.Ed.2d 300; State of Georgia v. Rachel, supra.
10
Cf. authorities cited, note 8, supra. Various federal statutes make it a crime to interfere with or punish the exercise of federally protected rights. See, e.g., § 11(b) of the Voting Rights Act of 1965, 79 Stat. 443, 42 U.S.C. § 1973i(b) (1964 ed., Supp. I); § 203 of the Civil Rights Act of 1964, 78 Stat. 244, 42 U.S.C. § 2000a—2 (164 ed.). See infra, at 847—848 and note 12.
'* * * we do not read these cases (Rives and Powers) as establishing that the denial of equal civil rights must appear on the face of the state constitution or statute rather than in its application where the alleged denial of rights, as here, had its inception in the arrest and charge. They dealt only with the systematic exclusion question, a question which in turn goes to the very heart of the state judicial process, and federalism may have indicated that the remedy in such situations in the first instance should be left to the state courts. We would not expand the teaching of these cases to include state denials
11
And see Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) (nearly two years from arrest to our reversal of convictions); Fields v. South Carolina, 375 U.S. 44, 84 S.Ct. 149, 11 L.Ed.2d 107 (1963) (three and a half years from arrest to our reversal of convictions); Henry v. City of Rock Hill, 376 U.S. 776, 84 S.Ct. 1042, 12 L.Ed.2d 79 (1964) (more than four years from arrest to our reversal of convictions).
12
Compare the language of § 203 of the Civil Rights Act of 1964, 78 Stat. 244, 42 U.S.C. § 2000a—2 (1964 ed.), relied upon by the Court in Rachel as creating a right to be free from a wrongful prosecution: 'No person shall * * * (b) intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person with the purpose of interfering with any right or privilege secured by (the public accommodations sections), or (c) punish or attempt to punish any person for exercising or attempting to exercise any right or privilege secured by (the public accommodations sections).'
The majority appears to distinguish this case from Rachel on the ground that in the latter case, the defendants were 'authorized' by the Civil Rights Act of 1964 to enter a restaurant and receive equal accommodation. In my judgment, that is a distinction without substance for purposes of § 1443(1). A person 'is denied' rights which § 1443(1) protects when the very prosecution of him is in violation of a federal statute assuring equal civil rights. That is true whether the act for which he is being prosecuted is specifically authorized by statute or, rather, is merely one of the innumerable acts which members of the community daily perform without either statutory authorization or police interference.
It must be apparent that the action by the Revisers of 1874 in eliminating the previous provision for post-trial removal is irrelevant to interpretation of the 'is denied' clause. Even on the majority's own interpretation of the statute, where 'any proceedings in the courts of the State will constitute a denial' of rights secured by a federal statute assuring equal civil rights, an appropriate basis will have been shown for a 'firm prediction' of such denial. State of Georgia v. Rachel, 384 U.S. at 804, 86 S.Ct. at 1796.
13
The irrationality of the Rives-Powers requirement that removal be predicated on a facially unconstitutional statute was known to Congress when it amended the law to make possible appeal from an order remanding the case to the state court. As then-Senator Humphrey, floor manager of the Civil Rights Act of 1964, put it: '(T)he real problem at present is not a statute which is on its face unconstitutional; it is the unconstitutional application of a statute. When a State statute has been unconstitutionally applied, most Federal district judges presently believe themselves bound by these old decisions. * * * Enactment of (the appeal provision) will give the appellate courts an opportunity to reexamine this question.' 110 Cong.Rec. 6551 (1964). (Emphasis added.) Similar invitations to overrule the Rives-Powers line of cases were uttered by Senator Dodd (110 Cong.Rec. 6955—6956) and Congressman Kastenmeier (110 Cong.Rec. 2770) and it is fair to assume that Congress did not reinstate the right to appeal from a remand order merely to allow civil rights litigants the brutal luxury of an appeal, the inevitable outcome of which would be an affirmance.
14
The majority's view of the Rives-Powers doctrine is none too clear. In Rachel, it dispenses with the broad statement of that doctrine that there be a facially unconstitutional state statute or constitutional provision, for it permits removal on a showing that a state statute is unconstitutional only in application to those seeking relief. The Court explains this by reliance on language in Rives which the Court thought warranted the conclusion that in certain circumstances, removal might be justified even in the absence of a discriminatory state statute. In this case, however, the majority appears to adopt the whole sweep of the Rives-Powers doctrine, and makes the absence of facially unconstitutional state action fatal to the petition for removal.
15
Cong.Globe, 39th Cong., 1st Sess., 602.
16
In support of its contrary result, the Court cites the number of removal petitions filed in the year 1965. I am unaware of any relevance this figure has in the interpretation of a statute enacted in 1866. Indeed, if any contemporary incidents are to provide guidance, I should think we would be aided by the debates and votes in Congress on the Civil Rights Act of 1964. Opponents of the provision allowing appeals from a remand order warned of possible dilatory tactics and disruptions of the judicial processes—state and federal—which might result; this was virtually the only expressed basis of opposition to this proposed amendment. See, e.g., H.R.Rep. No. 914, 88th Cong., 1st Sess., 59, 67, 111—112 (minority reports); 110 Cong.Rec. 2769—2784 (passim) (House); id., at 13468, 13879 (Senate). Proposals to delete the appeal provision were decisively rejected, 118—76 in the House (id., at 2784) and in the Senate on two occasions, 51—31 (id., at 13468) and 66—25 (id., at 13879).
| 89
|
384 U.S. 891
86 S.Ct. 1916
16 L.Ed.2d 996
Fred WALLACE et al.v.VIRGINIA.
No. 1011.
June 20, 1966.
Rehearing Denied Oct. 10, 1966.
See 87 S.Ct. 12.
On Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit.
Former decision, 86 S.Ct. 1224.
George E. Allen, Sr., Anthony G. Amsterdam, Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, S. W. Tucker and Henry L. Marsh III for petitioners.
Frederick T. Gray, for respondent.
PER CURIAM.
1
The petition for a writ of certiorari is granted and the judgments are affirmed. City of Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944.
2
THE CHIEF JUSTICE, Mr. Justice DOUGLAS, Mr. Justice BRENNAN and Mr. Justice FORTAS would reverse the judgments for the reasons stated in the dissenting opinion of Mr. Justice DOUGLAS in City of Greenwood v. Peacock, 384 U.S., at 835, 86 S.Ct., at 1816, 16 L.Ed.2d, at 961.
| 89
|
384 U.S. 889
86 S.Ct. 1914
16 L.Ed.2d 995
NEW JERSEY et al.v.Anthony RUSSO et al.
No. 834.
On Petition for Writ of Certiorari to the United States Court of Appeals for the Third Circuit.
Brendan T. Byrne, for petitioners.
1
Raymond A. Brown and Irving I. Vogelman, for respondent Russo.
2
Respondent Bisignano, pro se.
3
Arthur J. Sills, Atty. Gen. of New Jersey, Alan B. Handler, First Asst. Atty. Gen., and Richard Newman and Max Spinrad, Deputy Attys. Gen., for the Attorney General of New Jersey, as amicus curiae.
4
Arlen Specter and Joseph M. Smith, for the District Attorney of Philadelphia County, Pa., as amicus curiae.
5
June 20, 1966.
6
PER CURIAM.
7
The motion of respondent Frank Bisignano, for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is also granted and the judgment is vacated. The case is remanded to the United States District Court for the District of New Jersey for further proceedings in light of Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.
8
Mr. Justice DOUGLAS dissents for the reasons stated in the dissenting opinion in Johnson v. State of New Jersey, 384 U.S., at 736, 86 S.Ct., at 1782, 16 L.Ed.2d, at 894.
| 01
|
384 U.S. 855
86 S.Ct. 1840
16 L.Ed.2d 973
Raymond DENNIS, et al., Petitioners,v.UNITED STATES.
No. 502.
Argued April 20, 1966.
Decided June 20, 1966.
Telford Taylor, New York City, for petitioners.
Nathan Lewin, Washington, D.C., for respondent.
Mr. Justice FORTAS delivered the opinion of the Court.
1
The six petitioners and eight others were indicted in the United States District Court for the District of Colorado on a charge of violating the general conspiracy statute, 18 U.S.C. § 371 (1964 ed.).1 The single-count indictment alleged a conspiracy fraudulently to obtain the services of the National Labor Relations Board on behalf of the International Union of Mine, Mill and Smelter Workers, by filing false affidavits in purported satisfaction of the requirements of § 9(h) of the National Labor Relations Act, as amended by the Taft-Hartley Act, 61 Stat. 146.
2
Section 9(h), which was later repealed,2 provided that labor unions could not secure Labor Board investigation of employee representation or the issuance of a complaint unless there was on file with the Board so-called non-Communist affidavits of each officer of the union and its parent organization. The statute required that these affidavits attest that the officer 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.'
3
Four of the six petitioners—Dennis, Dichter, Travis and Wilson—were officers of the union. Each is alleged to have filed false non-Communist affidavits. Petitioners Sanderson and Skinner were, at relevant times, union members but not officers. They are charged with participation in the conspiracy. All were alleged to be 'members of and affiliated with the Communist Party.'
4
The indictment was returned in 1956. At the first trial, petitioners and others were convicted. On appeal, the Court of Appeals for the Tenth Circuit sustained the validity of the indictment, but reversed the judgments on the ground that prejudicial hearsay evidence had been admitted in evidence. 302 F.2d 5.
5
On retrial, the petitioners were again convicted and each was sentenced to three years' imprisonment and fined $2,000. This time, the Court of Appeals affirmed. 346 F.2d 10. We granted certiorari (382 U.S. 915, 86 S.Ct. 291, 15 L.Ed.2d 231) limited to three questions:
6
'1. Whether the indictment states the offense of conspiracy to defraud the United States;
7
'2. Whether, in the comparative light of American Communications Ass'n. v. Douds, 339 U.S. 382, (70 S.Ct. 674, 94 L.Ed. 925), and United States v. Brown, 381 U.S. 437, (85 S.Ct. 1707, 14 L.Ed.2d 484), Section 9(h) of the Taft-Hartley Act is constitutional;
8
'3. Whether the trial court erred in denying petitioners' motions for the production, to the defense or the Court, of grand jury testimony of prosecution witnesses.' Essentially, the Government's case is that, prior to June 1949, the union and the Communist Party opposed compliance with § 9(h); that in 1949 the Communist Party and the union, as a consequence of discussions participated in by petitioners and others, determined that preservation of the Party's allegedly dominating position in the union, and the union's welfare itself, required that the union officials take steps to secure the Board's services for the union; and that, in order to accomplish this purpose, the union's officers were nominally to resign from the Communist Party and to file the non-Communist affidavits required by § 9(h). Pursuant to this plan, it is alleged, the union leadership voted to comply with § 9(h). Those officers who were Party members, including four of the petitioners herein, purported to resign from the Party.3 They then proceeded, at various dates between August 1949 and February 1955, to file with the Labor Board the required non-Communist affidavits. This action, it is contended, was cynical and fraudulent, and petitioners' affidavits were false. In reality, it is claimed, petitioners' Communist Party affiliations remained unaffected as did the Party's domination of the union's affairs. The union thereafter proceeded, on several occasions, to utilize the Board's services, a privilege which it had obtained as a result of these assertedly fraudulent acts.
I.
9
We first discuss the question, considered both in the District Court and in the Court of Appeals,4 whether the indictment properly charged a conspiracy to defraud the United States under 18 U.S.C. § 371. We agree that indictments under the broad language of the general conspiracy statute must be scrutinized carefully as to each of the charged defendants because of the possibility, inherent in a criminal conspiracy charge, that its wide net may ensnare the innocent as well as the culpable. See Krulewitch v. United States, 336 U.S. 440, 445—458, 69 S.Ct. 716, 719—725, 93 L.Ed. 790 (concurring opinion); United States v. Bufalino, 285 F.2d 408, 417—418 (C.A.2d Cir. 1960). But in the present case we conclude that the indictment for conspiracy was proper as to each of the petitioners.
10
Four of the petitioners—those who filed the affidavits alleged to be false—presumably could have been indicted for the substantive offense of making false statements as to a 'matter within the jurisdiction of' the Board, a violation of 18 U.S.C. § 1001 (1964 ed.). But the essence of their alleged conduct was not merely the individual filing of false affidavits. It was also the alleged concert of action—the common decision and common activity for a common purpose. The conspiracy was not peripheral or incidental. It lay at the core of the alleged offense. It is the entire conspiracy, and not merely the filing of false affidavits, which is the gravamen of the charge. This conspiratorial program included, as prime factors, not only those who themselves filed the false statements, but others who were equally interested in the conspiratorial purpose and who were directly and culpably involved in the alleged scheme. The Government sought to fasten culpability upon all of the conspirators. The indictment properly charges a conspiracy, and with the required specificity alleges the culpable role of each of the petitioners.
11
Nor can it be concluded that a conspiracy of the described nature and objective is outside the condemnation of the specific clause of § 371 relied upon in the indictment, which charges a conspiracy 'to defraud the United States, or any agency thereof in any manner or for any purpose.' It has long been established that this statutory language is not confined to fraud as that term has been defined in the common law. It reaches 'any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government,' Haas v. Henkel, 216 U.S. 462, 479, 30 S.Ct. 249, 254, 54 L.Ed. 569, quoted in United States v. Johnson, 383 U.S. 169, 172, 86 S.Ct. 749, 751, 15 L.Ed.2d 681.5 See also, Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593; Glasser v. United States, 315 U.S. 60, 66, 62 S.Ct. 457, 463, 86 L.Ed. 680; Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968. Cf. Goldstein, Conspiracy to Defraud the United States, 68 Yale L.J. 405, 414—441, 455—458 (1959). In the present case, it is alleged that petitioners, unable to secure for their union the benefit of Labor Board process except by submitting non-Communist affidavits, coldly and deliberately concocted a fraudulent scheme; and in furtherance of that scheme, some of the petitioners did in fact submit false affidavits and the union did thereafter use the Labor Board facilities made available to them. This Court's decisions foreclose the argument that these allegations do not properly charge a conspiracy to defraud the United States.
12
Petitioners argue, however, that their conduct cannot be considered as fraudulent for purposes of § 371 because the Labor Board is required to certify the compliance of any union whose officers have filed non-Communist affidavits—without regard to the veracity thereof. Leedom v. International Union, 352 U.S. 145, 77 S.Ct. 154, 1 L.Ed.2d 201, and Amalgamated Meat Cutters and Butcher Workmen of North America v. National Labor Relations Board, 352 U.S. 153, 77 S.Ct. 159, 1 L.Ed.2d 207. The claim is that since the Board's action in making its services available to the union was not and could not lawfully have been predicated upon the truthfulness of the affidavits, the element of reliance is missing and there is no conspiracy to defraud. It is true that Congress, in order to free the Board of the delays that would be attendant upon testing the bona fides of controverted affidavits,6 did relegate to the criminal law the responsibility for dealing with false filings. This allocation of responsibility relating to the sanctions attached to false affidavits does not alter the character or legal consequences of petitioners' alleged actions. It is beyond argument that Congress unmistakably regarded the filing of truthful affidavits—and not merely affidavits true or false—as of the essence of the privilege of using Board facilities. Congress made this doubly clear by expressly providing that certain criminal statutes, such as 18 U.S.C. § 1001 relating to the filing of false statements, shall be applicable in respect of § 9(h) affidavits.
13
The facts are, according to the indictment, that petitioners and their co-conspirators could not have obtained the Board's services and facilities without filing non-Communist affidavits; that the affidavits were submitted as part of a scheme to induce the Board to act; that the Board acted in reliance upon the fact that affidavits were filed; and that these affidavits were false. Within the meaning of § 371, this was a conspiracy to defraud the United States or an agency thereof.
14
Still another argument is advanced to defeat the indictment. Petitioners submit that this case does not involve a conspiracy to defraud, but rather, under the alternative clause of § 371, a conspiracy to commit the substantive offense of filing false statements in violation of 18 U.S.C. § 1001. It is their contention that Bridges v. United States, 346 U.S. 209, 73 S.Ct. 1055, 97 L.Ed. 1557, compels the conclusion that a conspiracy to file false statements may not properly be laid under the conspiracy-to-defraud clause of § 371. Bridges is not in point. The decision there did not turn upon construction of § 371. The question before the Court was whether a prosecution, otherwise time-barred, could be revived by reference to the Wartime Suspension of Limitations Act, 18 U.S.C. § 3287 (1964 ed.). The Suspension Act applies to 'any offense * * * involving fraud or attempted fraud against the United States or any agency thereof * * *.' The indictment in Bridges charged both the filing of false statements and a conspiracy to defraud, in order to obtain a certificate of naturalization.7 The Court held that the Suspension Act did not apply to these offenses. The Act, the Court ruled, was to be construed narrowly and to be applied 'only where the fraud is of a pecuniary nature or at least of a nature concerning property.' 346 U.S., at 215, 73 S.Ct., at 1059. The Court characterized the charge that Bridges and his collaborators had conspired to defraud the United States as a 'cloak,' the sole purpose of which was to revive a stale prosecution.
15
In the present case, on the other hand, the allegation as to conspiracy to defraud, as we have discussed, properly reflects the essence of the alleged offense. It does not involve an attempt by prosecutorial sleight of hand to overcome a time bar.8 The fact that the events include the filing of false statements does not, in and of itself, make the conspiracy-to-defraud clause of § 371 unavailable to the prosecution. Cf. Glasser v. United States, 315 U.S. 60, 66—67, 62 S.Ct. 457, 463—464, 86 L.Ed. 680; United States v. Manton, 107 F.2d 834, 839 (C.A.2d Cir. 1939) cert. denied, 309 U.S. 664, 60 S.Ct. 590, 84 L.Ed. 1012.
16
We conclude, therefore, that the indictment properly charged a violation of the conspiracy-to-defraud clause of § 371.
II.
17
Petitioners next urge that we set aside their convictions on the ground that § 9(h) of the Taft-Hartley Act is unconstitutional. In particular, they rely upon United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484, in which the Court held unconstitutional as a bill of attainder the statute enacted by Congress in 1959 to replace § 9(h). The new statute made it a crime for a member of the Communist Party to hold office or any other substantial employment in a labor union.9 They contend that Brown in effect overruled American Communications Assn. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925, which sustained the validity of § 9(h), and they ask that we now reconsider Douds.10
18
We need not reach this question, for petitioners are in no position to attack the constitutionality of § 9(h). They were indicted for an alleged conspiracy, cynical and fraudulent, to circumvent the statute. Whatever might be the result where the constitutionality of a statute is challenged by those who of necessity violate its provisions and seek relief in the courts is not relevant here. This is not such a case. The indictment here alleges an effort to circumvent the law and not to challenge it—a purported compliance with the statute designed to avoid the courts, not to invoke their jurisdiction.11
19
It is no defense to a charge based upon this sort of enterprise that the statutory scheme sought to be evaded is somehow defective. Ample opportunities exist in this country to seek and obtain judicial protection.12 There is no reason for this Court to consider the constitutionality of a statute at the behest of petitioners who have been indicted for conspiracy by means of falsehood and deceit to circumvent the law which they now seek to challenge. This is the teaching of the cases.
20
In Kay v. United States, 303 U.S. 1, 58 S.Ct. 468, 82 L.Ed. 607, this Court upheld a conviction for making false statements in connection with the Home Owners' Loan Act of 1933, without passing upon the claim that the Act was invalid. The Court said, 'When one undertakes to cheat the Government or to mislead its officers, or those acting under its authority, by false statements, he has no standing to assert that the operations of the Government in which the effort to cheat or mislead is made are without constitutional sanction.' 303 U.S., at 6, 58 S.Ct., at 471. See also United States v. Kapp, 302 U.S. 214, 58 S.Ct. 182, 82 L.Ed. 205, involving a false claim for money under the subsequently invalidated Agricultural Adjustment Act of 1933. Analogous are those cases in which prosecutions for perjury have been permitted despite the fact that the trial at which the false testimony was elicited was upon an indictment stating no federal offense (United States v. Williams, 341 U.S. 58, 65—69, 71 S.Ct. 595, 599—601, 95 L.Ed. 747); that the testimony was before a grand jury alleged to have been tainted by governmental misconduct (United States v. Remington, 208 F.2d 567, 569 (C.A.2d Cir. 1953), cert. denied, 347 U.S. 913, 74 S.Ct. 476, 98 L.Ed. 1069); or that the defendant testified without having been advised of his constitutional rights (United States v. Winter, 348 F.2d 204, 208—210 (C.A.2d Cir. 1965), cert. denied, 382 U.S. 955, 86 S.Ct. 429, 15 L.Ed.2d 360, and cases cited therein).
21
Petitioners seek to distinguish these cases on the ground that in the present case the constitutional challenge is to the propriety of the very question—Communist Party membership and affiliation—which petitioners are accused of answering falsely. We regard this distinction as without force. The governing principle is that a claim of unconstitutionality will not be heard to excuse a voluntary, deliberate and calculated course of fraud and deceit. One who elects such a course as a means of self-help may not escape the consequences by urging that his conduct be excused because the statute which he sought to evade is unconstitutional. This is a prosecution directed at petitioners' fraud. It is not an action to enforce the statute claimed to be unconstitutional.
22
It is argued in dissent, see pp. 876—880, post, that we cannot avoid passing upon petitioners' constitutional claim because it bears upon whether they may be charged with defrauding the Government of a 'lawful function.' At the time of some of the allegedly fraudulent acts of the conspirators, this Court's decision in Douds had been handed down. It was flouted, not overlooked. This position loses sight of the distinction between appropriate and inappropriate ways to challenge acts of government thought to be unconstitutional. Moreover, this view assumes that for purposes of § 371, a governmental function may be said to be 'unlawful' even though it is required by statute and carries the fresh imprimatur of this Court. Such a function is not immune to judicial challenge. But, in circumstances like those before us, it may not be circumvented by a course of fraud and falsehood, with the constitutional attack being held for use only if the conspirators are discovered.
23
Because the claimed invalidity of § 9(h) would be no defense to the crime of conspiracy charged in this indictment, we find it unnecessary to reconsider Douds.
III.
24
We turn now to petitioners' contention that the trial court committed reversible error by denying their motion to require production for petitioners' examination of the grand jury testimony of four government witnesses.13 Alternatively, petitioners sought in camera inspection by the trial judge to be followed by production to petitioners in the event the judge found inconsistencies between trial testimony and that before the grand jury.
25
The trial judge denied the motions, made at the conclusion of the direct examination of each of the witnesses, on the ground that no 'particularized need' had been shown. See Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323. On appeal, the Court of Appeals held that the denial of the motions was not reversible error. The court recognized 'the inherent power and the inescapable duty of the trial court to lift the lid of secrecy on grand jury proceedings in aid of the search for truth,' and that its obligation was 'not (to) hesitate to inspect and to disclose any inconsistencies if it is likely to aid the fair administration of criminal justice through proper cross-examination and impeachment.' 346 F.2d, at 17. It went so far as to express the view that 'it would have been safer to have inspected the grand jury testimony.' Id., at 18. But because 'the witnesses were thoroughly and competently cross-examined on numerous other relevant judicial and extra-judicial statements without manifest inconsistency,' the court thought it 'safe to assume that the grand jury proceedings would not have disclosed anything of impeaching significance.' Ibid.
26
In his brief in this Court, the Solicitor General concedes that 'there is substantial force to petitioners' claims that the interest in secrecy was minimal in light of the oft-repeated testimony of the witnesses and that the arguments they now advance, if made at trial, might have suggested in camera inspection as an appropriate course.' Brief for the United States, p. 51. But the Government argues that it was not error for the trial judge to have denied petitioners' motions. With this latter proposition we disagree, and we reverse.
27
This Court has recognized the 'long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts.' United States v. Procter & Gamble Co., 356 U.S. 677, 681, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077. And it has ruled that, when disclosure is permitted, it is to be done 'discretely and limitedly.' Id., at 683, 78 S.Ct., at 987. Accordingly, the Court has refused in a civil case to permit pretrial disclosure of an entire grand jury transcript where the sole basis for discovery was that the transcript had been available to the Government in preparation of its case. Procter & Gamble, supra. And, in Pittsburgh Plate Glass Co. v. United States, supra, the Court sustained a trial court's refusal to order disclosure of a witness' grand jury testimony where the defense made no showing of need, but insisted upon production of the minutes as a matter of right, and where there was 'overwhelming' proof of the offense charged without reference to the witness' trial testimony.
28
In general, however, the Court has confirmed the trial court's power under Rule 6(e) of the Federal Rules of Criminal Procedure to direct disclosure of grand jury testimony 'preliminarily to or in connection with a judicial proceeding.' In United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234, 60 S.Ct. 811, 849, 84 L.Ed. 1129, the Court acknowledged that 'after the grand jury's functions are ended, disclosure is wholly proper where the ends of justice require it.' In Procter & Gamble, supra, the Court stated that 'problems concerning the use of the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility * * *' are 'cases of particularized need where the secrecy of the proceedings is lifted discretely and limitedly.' 356 U.S., at 683, 78 S.Ct., at 987. And in Pittsburgh Plate Glass, supra, where four members of the Court concluded that even on the special facts of that case the witness' grand jury testimony should have been supplied to the defense, the entire Court was agreed that upon a showing of 'particularized need' defense counsel might have access to relevant portions of the grand jury testimony of a trial witness, 360 U.S., at 400, 405, 79 S.Ct., at 1241, 1244.14 In a variety of circumstances, the lower federal courts, too, have made grand jury testimony available to defendants.15
29
These developments are entirely consonant with the growing realization that disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice. This realization is reflected in the enactment of the so-called Jencks Act 18 U.S.C. § 3500 (1964 ed.), responding to this Court's decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, which makes available to the defense a trial witness' pretrial statements insofar as they relate to his trial testimony.16 It is also reflected in the expanding body of materials, judicial and otherwise, favoring disclosure in criminal cases analogous to the civil practice.17
30
Certainly in the context of the present case, where the Government concedes that the importance of preserving the secrecy of the grand jury minutes is minimal and also admits the persuasiveness of the arguments advanced in favor of disclosure, it cannot fairly be said that the defense has failed to make out a 'particularized need.' The showing made by petitioners, both in the trial court and here, goes substantially beyond the minimum required by Rule 6(e) and the prior decisions of this Court.18 The record shows the following circumstances:
31
1. The events as to which the testimony in question related occurred between 1948 and 1955. The grand jury testimony was taken in 1956, while these events were relatively fresh. The trial testimony which petitioners seek to compare with the 1956 grand jury testimony was not taken until 1963. Certainly, there was reason to assay the latter testimony, some of which is 15 years after the event against the much fresher testimony before the grand jury.19
32
2. The motions in question involved the testimony of four of the eight government witnesses. They were key witnesses. The charge could not be proved on the basis of evidence exclusive of that here involved.
33
3. The testimony of the four witnesses concerned conversations and oral statements made in meetings. It was largely uncorroborated. Where the question of guilt or innocence may turn on exactly what was said, the defense is clearly entitled to all relevant aid which is reasonably available to ascertain the precise substance of the statements.
34
4. Two of the witnesses were accomplices, one of these being also a paid informer. A third had separated from the union and had reasons for hostility toward petitioners.
35
5. One witness admitted on cross-examination that he had in earlier statements been mistaken about significant dates.
36
A conspiracy case carries with it the inevitable risk of wrongful attribution of responsibility to one or more of the multiple defendants. See, e.g., United States v. Bufalino, 285 F.2d 408, 417—418 (C.A.2d Cir. 1960). Under these circumstances, it is especially important that the defense, the judge and the jury should have the assurance that the doors that may lead to truth have been unlocked. In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant fact.20 Exceptions to this are justifiable only by the clearest and most compelling considerations. For this reason, we cannot accept the view of the Court of Appeals that it is 'safe to assume' no inconsistencies would have come to light if the grand jury testimony had been examined. There is no justification for relying upon 'assumption.'
37
In Pittsburgh Plate Glass, supra, the Court reserved decision on the question whether in camera inspection by the trial judge is an appropriate or satisfactory measure when there is a showing of a 'particularized need' for disclosure. 360 U.S., at 400, 79 S.Ct., at 1241. This procedure, followed by production to defense counsel in the event the trial judge finds inconsistencies, has been adopted in some of the Courts of Appeals. In the Second Circuit it is available as a matter of right.21 While this practice may be useful in enabling the trial court to rule on a defense motion for production to it of grand jury testimony—and we do not disapprove it for that purpose—it by no means disposes of the matter. Trial judges ought not to be burdened with the task or the responsibility of examining sometimes voluminous grand jury testimony in order to ascertain inconsistencies with trial testimony. In any event, 'it will be extremely difficult for even the most able and experienced trial judge under the pressures of conducting a trial to pick out all of the grand jury testimony that would be useful in impeaching a witness.' Pittsburgh Plate Glass, 360 U.S., at 410, 79 S.Ct., at 1246 (dissenting opinion). Nor is it realistic to assume that the trial court's judgment as to the utility of material for impeachment or other legitimate purposes, however conscientiously made, would exhaust the possibilities. In our adversary system, it is enough for judges to judge. The determination of what may be useful to the defense can properly and effectively be made only by an advocate.22 The trial judge's function in this respect is limited to deciding whether a case has been made for production, and to supervise the process: for example, to cause the elimination of extraneous matter and to rule upon applications by the Government for protective orders in unusual situations, such as those involving the Nation's security or clearcut dangers to individuals who are identified by the testimony produced. Cf. Fed.Rule Crim.Proc. 16(e), as amended in 1966; 18 U.S.C. § 3500(c).
38
Because petitioners were entitled to examine the grand jury minutes relating to trial testimony of the four government witnesses, and to do so while those witnesses were available for cross-examination, we reverse the judgment below and remand for a new trial. It is so ordered.
39
Reversed and remanded for new trial.
40
Mr. Justice DOUGLAS, while joining the opinion of Mr. Justice BLACK, also joins Part III of the majority opinion.
41
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurring in part and dissenting in part.
42
This prosecution, now approaching its second decade and third trial, is a natural offspring of the McCarthy era. For reasons set out in Part III of the Court's opinion I agree that it was reversible error for the trial court to deny petitioners' motion to examine the Grand Jury minutes. While I disagree with the Court's holding that the indictment states facts sufficient to charge the offense of defrauding the United States in violation of 18 U.S.C. § 371, I shall devote my attention in this opinion to the Court's holding that petitioners are 'in no position to attack the constitutionality of § 9(h)' of the National Labor Relations Act, as amended by the Taft-Hartley Act, as a bill of attainder. I believe it is a flat denial of procedural due process of law for this Court to allow these petitioners to be tried for the third time without passing on the validity of § 9(h).
I.
43
The indictment charges, as it was compelled to charge in order to show that the offense of conspiring to defraud the Government had been committed, that the petitioners' alleged fraud interfered with 'lawful' and 'proper' functions of government. Had the indictment failed to charge that the functions obstructed were 'lawful' and 'proper,' it would have been fatally defective under our prior cases accepted by the Court today which state that an essential element of the crime of defrauding the Government is the obstruction of a 'lawful' and 'legitimate' governmental function. United States v. Johnson, 383 U.S. 169, 172, 86 S.Ct. 749, 751, 15 L.Ed.2d 681; Glasser v. United States, 315 U.S. 60, 66, 62 S.Ct. 457, 463, 86 L.Ed. 680; Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968; Haas v. Henkel, 216 U.S. 462, 479, 30 S.Ct. 249, 253, 54 L.Ed. 569. Accordingly, in holding that petitioners have no right to challenge § 9(h), the Court must conclude that even if § 9(h) is a bill of attainder, petitioners have nevertheless conspired to interfere with some lawful and legitimate function of government. Yet the Court nowhere points out any governmental function that could have been interfered with by the false affidavits except functions performed under § 9(h) which the Court for purposes of this argument assumes is a bill of attainder. But if the provisions of § 9(h) requiring non-Communist affidavits constitute a bill of attainder then no requirement of that section and no services performed or refused to be performed under it can constitute either lawful or legitimate functions of government. And surely if § 9(h) is a bill of attainder, the filing of any non-Communist affidavits under § 9(h), whether true or false, cannot be said to have interfered with any lawful or legitimate function of the Labor Board. It would indeed be strange if the Court means that it is a lawful and legitimate function of the Government to enforce and carry out in any part a bill of attainder against these petitioners. But if this is what the Court means, then it frustrates the Framers' intention that a bill of attainder must never be given the slightest validity or effect in this free country, either directly or indirectly.
44
Our Government has not heretofore been thought of as one which sends its citizens to prison without giving them a chance to challenge validity of the laws which are the very foundation upon which criminal charges against them rest. Yet the Court refuses to allow petitioners to attack § 9(h) on the ground that 'the claimed invalidity of § 9(h) would be no defense to the crime of conspiracy charged in this indictment * * *.' It is indeed a novel doctrine if the unconstitutionality of a law which forms the very nucleus of a criminal charge cannot be a defense to that charge. Certainly the Court does not deny that violation of the § 9(h) requirement for non-Communist oaths is an essential if not indeed the only ingredient of the crime for which the Government seeks to place petitioners in jail. The indictment properly charged unlawful compliance with § 9(h) as an essential element, if indeed not the whole crime laid at petitioners' door. Congress has passed no law which requires the Court to refuse to consider petitioners' challenge to the constitutionality of § 9(h). Nor are there any prior cases of this Court which require us today to tell citizens that the courts of our land are not open for them to challenge bills of attainder under which they may be sent to prison. The holding is solely and exclusively a new court-made doctrine.
45
The cases relied on by the majority cannot, in my judgment, properly be stretched to support the Court's holding that petitioners have no right to challenge § 9(h) as a bill of attainder. In United 82 L.Ed. 205, relied on by the Court, the defendants conspired through use of false statements to secure benefit payments under the Agricultural Adjustment Act to which they were not entitled under the Act itself. For this they were indicted. At trial they contended that they could not be prosecuted because the Agricultural Adjustment Act had been declared unconstitutional. This Court properly rejected that defense. In that case Kapp was convicted of conspiring to get money out of the Treasury to which he had no possible right whether the statute was constitutional or unconstitutional. The alleged conspiracy was to defraud the Government of money by people who, under no circumstances, had or could have had any legitimate claim to the money. So also in Kay v. United States, 303 U.S. 1, 58 S.Ct. 468, 82 L.Ed. 607, as in Kapp, the defendants made false statements in order to get benefits from the Government which were not due them whether the Home Owners' Loan Act was constitutional or unconstitutional. In none of the other cases relied on by the Court today do we have the situation present in this case. Here, if § 9(h) is unconstitutional, petitioners' union has always been entitled to services of the Labor Board before any affidavits were filed, when they were filed, or after they were filed. By filing false affidavits petitioners got for their union no more than it was entitled to if the statute is unconstitutional. In this situation if § 9(h) is a bill of attainder, the Government has been deprived of nothing and defrauded of nothing.
46
Let us consider for a moment other similar cases in which efforts might be made to deprive citizens of their right to challenge unconstitutional laws bearing down upon them. For example, what if a State wanted to impose racial or religious qualifications for voting in violation of the Fourteenth and Fifteenth Amendments and that State refused to register people to vote until they had filed affidavits swearing that they were not of a proscribed color or religion? If a person filed a flase affidavit under such a law could it be possible that this Court would hold the person had defrauded the State out of something it was entitled to have? Take another example. Article VI of the United States Constitution provides that '* * * no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.' Suppose Congress should pass a law requiring candidates for public office to make affidavits that they do not belong to a particular church and a candidate falsely denies his membership in that church. Is it conceivable that this Court would permit him to be barred from his office and sent to prison on the ground that the Government had been defrauded in its 'lawful' and 'legitimate' functions? And who would imagine that people under indictment for defrauding the Government by making false affidavits required by these unconstitutional acts would be denied in a court of justice the right to challenge such unconstitutional laws? The Court's refusal to allow these petitioners to challenge the constitutionality of § 9(h), on which the charge against them ultimately rests, is hardly consistent with Madison's view that 'independent tribunals of justice * * * will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.' 1 Annals of Congress 439 (1789).
II.
47
In 1959 Congress repealed § 9(h) of the National Labor Relations Act and enacted § 504 of the Labor-Management Reporting and Disclosure Act. 73 Stat. 536, 29 U.S.C. § 504 (1964 ed.). Section 504 made it a crime for a member of the Communist Party to serve as an officer of a labor union. Last year this Court in United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 held § 504 to be an unconstitutional bill of attainder. In doing so, the Court said, 'Section 504 was designed to accomplish the same purpose as § 9(h), but in a more direct and effective way.' 381 U.S., at 439, n. 2, 85 S.Ct., at 1710. In this case the Government argues with understandable brevity, feebleness and unpersuasiveness that there is a crucial distinction between § 504, which it has to admit is a bill of attainder, and § 9(h) which it contends is not. This alleged crucial distinction amounts to no more than an assertion that the punishment under § 504 is more severe than that under § 9(h). This distinction is hard to grasp and harder to accept. Section 504 made it a crime for a Communist to hold office in a labor union. Section 9(h) made it just as impossible for a Communist to hold union office, though it reached this result in a different way. Section 9(h) provided that a union could not receive the services of the Labor Board if the union had any Communist officers and required all union officers to file affidavits stating they were not Communists as a condition of their unions' receiving the Board's services. The practical effect of § 9(h) was that a union officer who was a Communist was forced either to file a false affidavit, for which he could have been prosecuted, or to give up his office. For this reason the differences between § 9(h) and § 504 upon which the Government relies are too slight, too insubstantial, and too vaporlike to justify the conclusion that one section is a bill of attainder and the other is not. Brown held that § 504 was a bill of attainder because it attainted all Communists and declared them unfit to hold office in a labor union. The heart of the holding in Brown was that Communists had been so attainted through legislative findings rather than a due process judicial trial. Section 9(h) amounts to exactly the same sort of attainder by elgislative fiat. It would be a distinct and a quick retreat from Brown to hold § 9(h) is not a bill of attainder though its successor, identical in purpose and practical effect, is a bill of attainder. I am not willing to make this retreat either directly, or indirectly by refusing to face the issue here and now.
48
Petitioners now face their third trial and possible prison sentences just as though the Court had today upheld § 9(h). I must say with considerable regret that future historians reporting this case may justifiably draw an inference that it is the petitioners, whatever may be their offense, and not the Government who have been defrauded. For petitioners, if convicted and sentenced again, unlike the Government, actually will have been deprived of something—their freedom. They will be in jail, having been denied by their Government the right to challenge the constitutionality of § 9(h) which, when it is challenged, must in my judgment be held to be the constitutionally doubly prohibited freedom-destroying, legislative bill of attainder.
1
The statute reads: 'If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both. * * *'
2
Congress substituted for § 9(h), legislation making it a crime for a Communist Party member to hold office or any other substantial position of employment in any labor union. 73 Stat. 536, 29 U.S.C. § 504 (1964 ed.). See note 9, infra. In United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484, this successor statute was held unconstitutional as a bill of attainder.
3
One of the petitioners, Travis, made a public announcement of his resignation. The other officers of the union sent purported letters of resignation from the Party to local Party offices.
4
The opinion of the District Court sustaining the indictment is reported in United States v. Pezzati, 160 F.Supp. 787 (D.C.D.Colo.1958). On this issue, the Court of Appeals affirmed. United States v. Dennis, 302 F.2d 5 (C.A.10th Cir. 1962).
5
In Johnson, the allegation that the defendants had conspired to defraud the United States was upheld although they were not charged with 'any false statement, misrepresentation or deceit.' See United States v. Johnson, 337 F.2d 180, 185—186 (C.A.4th Cir. 1964), aff'd as to that issue, 383 U.S. 169, 172, 86 S.Ct. 749, 751, 15 L.Ed.2d 681.
6
See the legislative materials set out in Leedom v. International Union, 352 U.S., at 149—150, 77 S.Ct., at 156—157.
7
The indictment in Bridges was in three counts. Two charged substantive violations of false statement provisions of the Nationality Act of 1940, formerly 8 U.S.C. §§ 746(a)(1) and 746(a)(5) (1940 ed.), now 18 U.S.C. §§ 1015 and 1425 (1964 ed.). The third count alleged a conspiracy to defraud the United States or an agency thereof, in violation of 18 U.S.C. § 371.
8
Petitioners suggest that in this case, too, the Government resorted to the conspiracy-to-defraud clause of § 371 in order to avoid a time bar. The claim is that this was necessary to bring the 1949 filings (defendant Van Camp, acquitted at trial, made no filings after 1949) within the applicable statute of limitations. But the events of 1949 are properly within the time span of the indictment and provable at trial, not because it charges a conspiracy to defraud, but because it charges a conspiracy, and because at least one overt act is alleged to fall within the applicable period. See Grunewald v. United States, 353 U.S. 391, 396—397, 77 S.Ct. 963, 969—970, 1 L.Ed.2d 931; Fiswick v. United States, 329 U.S. 211, 216, 67 S.Ct. 224, 227, 91 L.Ed. 196; Brown v. Elliott, 225 U.S. 392, 400—401, 32 S.Ct. 812, 815, 56 L.Ed. 1136. Had the indictment charged a conspiracy to violate § 1001 which charge would be unaffected by Bridges—the same result would obtain; that is, the Government was enabled to reach back to 1949 by reason of the conspiracy charge. Whether it charged a conspiracy to commit an offense or one to defraud is immaterial for this purpose. Unlike the situation in Bridges, the Government here secured no advantage with respect to limitations by charging under one clause of § 371 rather than the other.
9
The statute, 73 Stat. 536, 29 U.S.C. § 504 (1964 ed.), provides: '(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 wilfully violates this section shall be fined not more than $10,000 or imprisoned for not more than one year, or both.'
10
Petitioners also rely upon Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992, where the Court invalidated a statute denying passports to membes of any Communist organization.
11
We note that petitioners are alleged to have entered upon the conspiracy and to have filed the first set of false affidavits during the pendency in this Court of a case raising precisely the constitutional issue now raised by them. Probable jurisdiction was noted in Douds on November 8, 1948 and certiorari was granted in the companion case, United Steelworkers of America v. National Labor Relations Board, 335 U.S. 910, 69 S.Ct. 480, on January 17, 1949. Petitioners are charged with commencing to conspire in June 1949 and with filing false affidavits in August 1949. Despite this Court's decision in Douds, announced on May 8, 1950 (339 U.S. 382, 70 S.Ct. 674), sustaining the validity of § 9(h), the indictment charges that petitioner Dennis and one Van Camp signed a Board election agreement less than two weeks later, and in December 1950 new affidavits were filed. In short, petitioners chose not only to evade the statute, but to ignore judicial proceedings likely to clarify their rights and then to flout an adverse decision of this Court. In this context, any claim that it is too burdensome to test these statutes in the courts is not entitled to consideration.
12
Indeed, petitioners' own union successfully prevented the National Labor Relations Board from withholding benefits on the basis of petitioner Travis' allegedly false § 9(h) affidavit. Leedom v. International Union, 352 U.S. 145, 77 S.Ct. 154, 1 L.Ed.2d 201.
13
Three of the witnesses in question testified at the second trial. A fourth, Mason, died in the interval between the two trials. At the first trial, the petitioners had moved for production or in camera inspection of his grand jury testimony. This was denied. At the second trial, they objected to use of his testimony at the first trial on the ground that they had not been permitted to examine, or to have the trial judge examine, the transcript of his grand jury testimony. Since the omission to require production of Mason's grand jury testimony with a view to impeachment can no longer be remedied, his trial testimony, under our holding herein, is no longer available to the Government in the event petitioners are retried.
14
Because there had been no request for in camera judicial inspection of the grand jury minutes, the Court in Pittsburgh Plate Glass did not pass upon the adequacy of that technique for protecting a defendant's interests. 360 U.S., at 401, 79 S.Ct., at 1241.
15
See, e.g., United States v. Remington, 191 F.2d 246, 250 251 (C.A.2d Cir. 1951), cert. denied, 343 U.S. 907, 72 S.Ct. 580, 96 L.Ed. 1325 (defendant charged with commission of perjury before the grand jury); Atlantic City Electric Co. v. A. B. Chance Co., 313 F.2d 431 (C.A.2d Cir. 1963) (use by private plaintiff in antitrust suit of witness' grand jury testimony); and cases cited in note 21, infra.
16
18 U.S.C. § 3500(b) (1964 ed.) reads in part: 'After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement * * * of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. * * *' Subsection (e) defines 'statement' for purposes of the Act.
17
See, e.g., the Amendments to Rule 16 of the Federal Rules of Criminal Procedure, approved by this Court on February 28, 1966, and transmitted to Congress, which authorize discovery and inspection of a defendant's own statements, the results of various tests, and the recorded testimony of the defendant before the grand jury (and see the Advisory Committee's Note thereon). See also, cases anticipating this broadening of criminal discovery: for example, Cicenia v. La Gay, 357 U.S. 504, 511, 78 S.Ct. 1297, 2 L.Ed.2d 1523; United States v. Peace, 16 F.R.D. 423 (D.C.S.D.N.Y.1954); United States v. Willis, 33 F.R.D. 510 (D.C.S.D.N.Y.1963); United States v. Williams, 37 F.R.D. 24 (D.C.S.D.N.Y.1965); United States v. Nolte, 39 F.R.D. 359 (D.C.N.D.Cal.1965); State v. Johnson, 28 N.J. 133, 145 A.2d 313 (1958); People ex rel. Lemon v. Supreme Court, 245 N.Y. 24, 156 N.E. 84, 52 A.L.R. 200 (1927).
Among the commentators who have argued in favor of broadening criminal discovery are Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth? 1963 Wash.U.L.Q. 279; Traynor, Ground Lost and Found in Criminal Discovery, 39 N.Y.U.L.Rev. 228 (1964); Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149 (1960); Note, Developments in the Law—Discovery, 74 Harv.L.Rev. 940, 1051—1063 (1961). Of particular relevance to the question of grand jury secrecy are: Sherry, Grand Jury Minutes: The Unreasonable Rule of Secrecy, 48 Va.L.Rev. 668 (1962); and Calkins, Grand Jury Secrecy, 63 Mich.L.Rev. 455 (1965).
18
None of the reasons traditionally advanced to justify non-disclosure of grand jury minutes (see Mr. Justice Brennan's dissenting opinion in Pittsburgh Plate Glass, 360 U.S., at 405, 79 S.Ct., at 1244) are significant here. For criticism of the traditional arguments against disclosure, see Brennan, op. cit. supra, note 17; Sherry, op. cit. supra, note 17; Calkins, op. cit. supra, note 17.
19
'Every experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous memory.' Jencks v. United States, 353 U.S. 657, 667, 77 S.Ct. 1007, 1013.
20
See, for example, Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624, where this Court reversed a trial court's ruling which deprived defense counsel of an opportunity to inquire into the background of an important government witness; United States v. Andolschek, 142 F.2d 503, 506 (C.A.2d Cir. 1944) (L. Hand, J.), where it was held the Government must produce reports—otherwise privileged—upon which the prosecution was based; United States v. Coplon, 185 F.2d 629, 636—639, 28 A.L.R.2d 1041 (C.A.2d Cir. 1960) (L. Hand, J.), cert. denied, 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688, where the court held that defendants were themselves entitled to examine unlawfully taken tape-recordings of telephone conservations although the trial judge had determined that these recordings had not led the Government to evidence introduced at trial; and People v. Ramistella, 306 N.Y. 379, 118 N.E.2d 566 (1954), where the court ruled the State could not use evidence of a secret identification on an automobile to prove that the automobile was stolen where it was unwilling to disclose the location of the identification mark to the defense.
21
United States v. Hernandez, 290 F.2d 86 (C.A.2d Cir. 1961); United States v. Giampa, 290 F.2d 83, 85 (C.A.2d Cir. 1961). Compare United States v. Micele, 327 F.2d 222, 226—227 (C.A.7th Cir. 1964); Ogden v. United States, 303 F.2d 724, 741—742 (C.A.9th Cir. 1962); United States v. Bertucci, 333 F.2d 292, 297 (C.A.3d Cir. 1964); Berry v. United States, 295 F.2d 192, 195 (C.A.8th Cir. 1961).
22
See Rosenberg v. United States, 360 U.S. 367, 371, 79 S.Ct. 1231, 1234, 3 L.Ed.2d 1304; United States v. Cotter, 60 F.2d 689, 692 (C.A.2d Cir. 1932) (L. Hand, J.); United States v. Coplon, 185 F.2d 629, 636—640 (C.A.2d Cir. 1950) (L. Hand, J.), cert. denied, 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688.
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